Canadian HR Reporter

Canadian HR RepoRteR February 23, 2015 6 News managerial job. He was terminat- ed in November 2009. e company dismissed Wil- son on a without-cause basis and offered six months' severance — considered above and beyond the standard statutory requirement under the Canada Labour Code — in exchange for full and final release. Under the code, Wilson would have been entitled to just 18 days' severance. But he did not sign the release and alleged he had been unjustly dismissed contrary to section 240 of the code. In particular, he al- leged he was dismissed because he had complained about im- proper procurement practices on the part of Atomic Energy. (e parties have yet to go back be- fore an arbitrator to address that allegation.) Wilson remained on the com- pany's payroll for six months and, in the end, he received the full amount of the severance package originally offered. e decision does not mean it is open season on non-union federal employees, said Snyder. "Those who think the sky is now falling should take contin- ued comfort that in accordance with the Federal Court of Appeal's judgment, employees will contin- ue to have access under the code to have determined whether their dismissals were unjust, whether or not they were dismissed for cause." Under part three of the Canada Labour Code, which deals with non-unionized employees in sec- tion 240, if an employee has been dismissed and views it as "unjust," he can file a complaint with Em- ployment and Social Develop- ment Canada. at would then be referred to an adjudicator. e Wilson decision, in con- junction with the lower federal court award, "completely reshapes the law of employment dismiss- als in this country" for federally regulated employers, said Sny- der. "is is a transformational or game-changing event — there's no doubt about it." It may also serve to level the playing field between provincial and federal employers. "In the provincial sector, an employer has always been able to terminate for just cause or, alter- natively, terminate on a without- cause basis provided they provide the employee with appropriate working notice or severance pay depending on the relative pro- vincial employment standard in effect," he said. Federally, since the introduc- tion of the unjust dismissal leg- islation under the code in 1978, the vast majority of federal adju- dicators held that dismissals could only be affected on a just-cause basis. "e result has been that em- ployers have been restricted in their ability to manage their hu- man resources in a manner they viewed appropriate," said Snyder. "ey were unable or reluctant to dismiss employees unless they built a solid case that could demon- strate the existence of just cause." That involved significant time and effort and financial ex- pense on their part, as well as being disruptive to the working environment. "e Federal Court of Appeal has now confirmed that these employees may be dismissed on a without-cause basis and, equally important, they also confirm the common law principles of em- ployment associated with em- ployee terminations is applicable in determining severance pack- ages or working notice received are just," he said. Snyder referred to the "almost Supreme Court-style level of anal- ysis" provided by Stratas. In his decision, Stratas referenced many cases and in particular Knopp v. Western Bulk Transport Ltd. "In conclusion, Divisions X, XI and XIV of Part III of the Canada Labour Code do not jettison the common law principles which govern the termination of an employment relationship. Had Parliament intended to imple- ment a drastically different le- gal order in which common law principles played no role, it would have said so in plain language. In enacting Division XIV of Part III of the Code, Parliament created another forum besides the courts to hear complaints of unjust dis- missal and granted Code adjudi- cators remedial powers common law judges are without." e decision also referenced the 2012 case of Klein v. Royal Canadian Mint, where an adjudi- cator found the employer did have the ability to terminate without cause. In that case, a unionized employee had applied for and got a managerial position, and he signed a contract saying his em- ployment could be terminated without cause upon payment of notice. He then challenged his termination and the adjudicator disagreed. "It's still important for employ- ers to look to the specific indi- vidual terms of employment be- cause there may be something in a contract or policy that impacts the employer's ability to terminate without cause," said Vuicic. e issues to be litigated now are "When is a dismissal un- just?" said Hendrik Nieuwland of Shields O'Donnell MacKillop in Toronto. "at is the question that is going to be asked for every without cause termination now." at means in the short term it may increase uncertainty and po- tentially increase litigation. "Employers are going to have an incentive to be more aggressive in terms of moving forward with terminations on a without-cause basis. e issue is going to be: 'Did you provide them with sufficient notice?' It's always an individual assessment," he said. Having sustained the lower court's decision, the court by impli- cation agrees there are three types of unjust dismissal complaints by an employee that can be referred to an adjudicator for disposition, said Snyder. One is where an indi- vidual is terminated without cause and provided severance or notice — in that case, the adjudicator will determine in accordance with the relevant common law principles as to whether that package was just or reasonable. The other two types can be referred to adjudicators — one represents the bulk of section 240 complaints where an employee is dismissed for just cause. If the employee disputes the allegation, the onus rests on the employer to prove it had just cause, such as disciplinary for incompetence. The third category is a case where an employee is dismissed without cause and provided a severance package but alleges the termination is really a disguised dismissal, affected contrary to law. Jennifer Brown is the editor of Cana- dian Lawyer InHouse. Case confirms common law principles apply Atomic eNerGy < pg. 1 proficiency in their competen- cies or at least maintain the proficiency." e completion rate has been "remarkably high," he said, as more than 16,000 people have al- ready certified using the tutorial. "We are seeing more and more individuals go through it and re- spond that this was a reasonable process, it was a process that helped them understand what competency-based certification is and, more importantly, that they feel they're more prepared now to structure their professional de- velopment experience and their recertification process." For Bonni Titgemeyer, manag- ing director of HR consultancy the Employers' Choice in Toron- to, the online pathway was a fairly painless process to attaining the SHRM-SCP, she said. "I wouldn't have said that it was easy... it doesn't take you very long to go through it but it is very fo- cused, it's very U.S.-centric and… sometimes just the logic of why you might do things in a certain order can be different in different countries," said Titgemeyer. e competency self-portrait was particularly helpful, she said. "I haven't seen a tool that did it quite like that. At the end of the exercise, that was probably the best takeaway for my hour-and- a-half of time that I spent on it." But SHRM's new certification has not been accredited and the pathway is not really an assess- ment, according to Linda An- guish, director of certification products at HRCI in Alexandria, whose various certifications are also eligible for the SHRM pathway. "ere's no additional assess- ment there beyond what people have already proven by earning their PHR or their SPHR or what- ever certification they're getting credit for," she said. "Earning ad- ditional letters for that exercise, they're not really being earned." It's basically a free learning opportunity or webinar-type op- portunity where it appears people can't fail, said Anguish. "It's really just an educational process. And, as such, to me, that type of an activity, that's probably something that's suitable for a continuing education exercise or something along those lines." 'Clear strategy,' says HRPA SHRM has a clear strategy, said Claude Balthazard, vice-president of regulatory affairs and privacy officer at the Human Resources Professionals Association (HRPA) in Toronto. "Basically, they look at it as a product and what do you do when you launch a product? You want to get as much market share as you can, so they'll recognize every- thing. It's meant to mainly take market share from HRCI," he said. "By lowering the standard, you can go for market share in the short term. at's not the strategy that we're up to." Ultimately, the value of des- ignations is not the eyes of the member but in the eyes of the user of that professional service, said Balthazard. And designations that are more valued are harder to get, he said. "For us, it's not the idea of making a designation easy to get so that everybody can get it; the point is more to have a designa- tion that has value in the market- place, which means necessarily that it cannot be that easy to get." HRPA is about being a profes- sion and there's more to that than just a designation, such as regula- tion and statutory sanction by the government, said Balthazard. "For us, there's a whole pack- age of professionalization, which includes the ethics, the values, the outlook, the approach — ev- erything. We've also approached it not as a commercial product but as a real profession and that's why we pursued legislation, so what we do is commensurate with tier-one professions," he said. "If you want a designation that will stand shoulder to shoulder with the CPA's, you're not going to get it done with a one-hour thing — it just won't add up in the end." But will employers know the difference? HRPA will do its best to make them understand the des- ignations, said Balthazard. "e unfortunate part is be- fore it all sorts out, SHRM may…. just create more confusion in the marketplace." HRCI's Anguish agreed. "e fact that you get letters at the end of the process, I think it potentially can add confusion into the whole marketplace as to what a certification is." But most organizations would appreciate the relevant profes- sional bodies and with recruit- ment, HR professionals certainly would, said Victoria Winkler, head of assessment at the Chartered In- stitute of Personnel and Develop- ment (CIPD) in London, U.K. e institute's MCIPD and FCIPD are also eligible for the pathway. "Obviously, we would hope that employers, and certainly they do, see the relevance of our stan- dards and because of everything we've done around our profes- sion — which has been engaging with employers, engaging with researchers, engaging with think- ers — we are hopeful that they feel that the profession map and standards represent them as well," she said. "SHRM is taking an approach that they feel is right for them... For us, we do have quite a detailed accreditation approach, whether that be based on qualifications or experience, and that's certainly something that we will continue." SHRM's pathway shows a growing agenda across the globe, said Winkler. "We're certainly being much more proactive about pursuing an international agenda but also looking at what synergies there are with other professional bod- ies across the globe." For Titgemeyer, decisions need to be made when it comes to which certifications to keep. "ere's no room left on my business card... and the cost of maintaining all those PD credits for all those designations is getting tougher and tougher." CIPD looking at synergies across the globe shrm < pg. 1 "For us, it's not the idea of making a designation easy to get; the point is more to have a designation that has value."

• Cover