Canadian HR Reporter

April 20, 2015

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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PM40065782 RO9496 April 20, 2015 Starbucks CEO Howard Schultz speaks in Seattle, Wash., on March 18. Schultz has navigated thorny issues such as gay marriage and gun control but his move to weigh in on U.S. race relations has brewed up a social media backlash. INSIDE POLICING IMPLICIT BIAS We all have it, but specialized training can help stomp out unconscious bias Contract challenge Engineer fails to prove his employment contract was void page 5 Talent strategy Your talent is only as strong as the strategy behind it page 8 Peer to peer Queen's University wows with employee recognition page 15 page 2 Credit: David Ryder (Reuters) Emplo y ment Law Today Canad a ian Expert opinions from the best employment lawyers in Canada CELT1504-2015 ad.indd 1 2015-01-09 11:07 AM Brewing up controversy Starbucks' 'Race Together' campaign provides lessons for employers BY LIZ BERNIER THERE'S no doubt Starbucks' most recent social campaign was designed with the best of inten- tions — to "stimulate conver- sation, compassion and action around race in America," accord- ing to CEO Howard Schultz. e campaign had the chain's baristas writing the words "Race Together" on customers' cups in an attempt to spark discussion and thought around race. But it quickly faced harsh pub- lic backlash, particularly on social media. Corey duBrowa, the orga- nizations' senior vice-president for global communications, went so far as to temporarily delete his per- sonal Twitter account in response to vitriol he was facing online. "I felt personally attacked in a cascade of negativity. I got over- whelmed by the volume and tenor of the discussion," he wrote in a post on e campaign also drew criti- cism over the limited diversity of Starbucks' senior leadership. Starbucks has long been known for its corporate social responsibil- ity initiatives, said Manda Cuth- bertson, director of operations and delivery at employer brand- ing fi rm Blu Ivy Group in Toronto. "We love that Starbucks really stands for more than just profi t, and the thing that really stands out to me in that whole situation is that Supreme Court clarifi es constructive dismissal Top court looks at suspension with pay BY LIZ BERNIER CONSTRUCTIVE DISMISSAL can be a tricky area to begin with, but it can be complicated even fur- ther if the employee in question is on suspension with pay. at was the case in a recent Supreme Court of Canada decision, Potter v. New Brunswick Legal Aid Services Commission. The Supreme Court unani- mously decided David Potter had been constructively dismissed from his job as executive director after he was put on indefi nite — but paid — suspension after near- ing the end of a sick leave. He was told he "ought not" to return to work but was given no reason. The decision clarifies some uncertainty around construc- tive dismissal and the legal test to determine if a situation qualifi es, said Carl Cunningham, a partner at Bennett Jones in Toronto. "This is a clarification rather than a material shift in the law," he said. "When you read the facts in this case, it's quite a lengthy deci- sion… to me the surprising thing is not the Supreme Court's decision but rather the earlier decisions that there wasn't a fi nding that there'd been a constructive dismissal." e case has a somewhat limit- ed application but it provides valu- able guidance for employers, said Jennifer Fantini, a partner at Bor- den Ladner Gervais in Toronto. "In terms of what the Supreme Court of Canada is telling us, it's that a suspension with pay can amount to a constructive dismiss- al if it's not authorized by the em- ployment contract either expressly or if you can't rely on an implied term." e decision may leave some employers uncertain of when a paid suspension is legally justifi - able, and when it can be consid- ered constructive dismissal. With constructive dismissal, the courts use a couple diff erent legal tests, said Cunningham — one of which centres on whether the employer has made a unilateral change to the terms of employ- ment, which in this case was sus- pending the employee. "If you're going to make that change to an essential term (of employment) and not have it be a constructive dismissal, you either want an express right or an im- plied right (to do so)," he said. If the right to suspend an em- ployee with pay is expressly stated in an employment agreement, there should be no issue, said Fan- tini — the more complicated issue $1.15-per-hour pay causes controversy Government contract involved workers with cognitive disabilities BY SARAH DOBSON IT MADE for shocking news: Fifty people with developmental disabilities in Ottawa were being paid $1.15 per hour to sort and shred paper. To make matters worse? e federal government was involved. Going beyond the headlines, the situation was not so black and white — the workers were part of a work program set up 35 years ago in a joint agreement between a community association and the provincial and federal govern- ments. A lump sum of $125,000 was divided as honourarium pay- ments among the workers. The employees also received provincial disability payments of $800 to $1,000 per month, along with health and dental coverage, according to media reports. After all the media attention, the contract was renewed for three years. But changes are defi nitely needed when it comes to employ- ment of this group, say the experts. "It's part of an old history that goes back and is long outdated and has been long considered wrong in most areas of Canada, so I think it's a bit of an anachronism that just got exposed when the contract was ended. But there's no excuse for it, for anybody, least of all of the federal government or any govern- ment. ey have the duty to set the example and do the right thing by people," said Faith Bodnar, execu- tive director of Inclusion BC in Vancouver. "People are deserving, as LACK > pg. 3 AGENCIES > pg. 7 TACKLING> pg. 10 POLICING IMPLICIT BIAS We all have it, but specialized training can help stomp out unconscious bias Peer to peer Queen's University wows with employee recognition page 15 page page 2 page page 2 Emp Expert opinions lawyers in Canada

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