Canadian HR Reporter

CANADIAN HR REPORTER September 7, 2015 INSIGHT 27 Sharone Bar-David GUeST COMMeNTaRY Brian Kreissl TOUgHeST HR QUeSTiON 4 stages of workplace incivility disease Proper diagnosis leads to better remedies Every workplace experiences incivility. But left unchecked, workplace incivil- ity can become a serious disease that aff ects engagement, performance, cus- tomer service, safety and absenteeism. Like other illnesses, it has predictable, progressive manifestations. As you refl ect on your organization or team, try assessing where you fall within this continuum. A healthy body In the healthy body state, the cul- ture is, by and large, civil. When incivility occurs, it stands out as uncharacteristic and undesirable. People feel comfortable calling others out on their behaviour, and do so constructively. ose who were uncivil own their part and apologize when necessary. Matters are dealt with and people move on, sometimes even with better rela- tions as a result of working through an issue together. Leaders model respect and are comfortable and eff ective in addressing problem be- haviour. Overall, there are healthy internal checks and balances that rely on everyone behaving as re- sponsible corporate citizens. Persistent allergy In a persistent allergy state, low- intensity incivility is quite com- mon, but people don't tend to deal with it or resolve it. Man- agement doesn't take an active stance to abolish it and is uncivil at times, mostly non-maliciously. This persistent allergy is often found in fast-paced or high-stress environments, where task per- formance takes precedence over relationships. Despite the problems, there's a sense of good spirit. e sta- tus quo is tolerable. Much like a nuisance allergy, it's a constant irritant that everyone learns to live with. Life goes on, even if at a somewhat less energetic and pro- ductive pace. But allowing this state to persist puts the environment at risk — it might develop a chronic infection or even acute disease. Chronic infection In this state, incivility is woven right into the culture. ere is an infestation of incivility across the organization (or unit), and much of it is at high-intensity levels. Ag- gressive, excluding, sarcastic and getting-even behaviours are abun- dant. ere really are only a hand- ful of key instigators but it is hard to single them out because the environment is so deeply aff ected. When the infection is chronic, there's no comprehensive orga- nizational strategy managers (or HR) to rely on to solve the prob- lems. People on the ground have few tools for resolving things constructively and, therefore, at- tempts to address issues backfi re. Management too falls short in its ability to identify problems and intervene in impactful ways. Many staff members see them- selves as victims, justifying their own uncivil behaviour. It is not uncommon for the bad behaviour to be directed towards managers too. And with a lack of organiza- tional support, these managers are helpless, paralyzed and stressed. To make things worse, incivil- ity leaks into the customer inter- face as staff treat clients rudely or indiff erently, or refer to them behind their backs in derogatory terms. Or perhaps uncivil interac- tions between colleagues occur in front of clients, shaping their per- ception of the brand. Acute disease Acute disease happens when management fails to tend to a chronic allergy or chronic infec- tion — "the Wild West." What may have started as incivility has deteriorated into harassment and bullying. Jokes can evolve into full-blown harassment based on culture, sexual orientation, gender or race. Or specifi c people are ha- bitually isolated, ridiculed or mar- ginalized. Degrading comments create a poisoned work environ- ment, with signifi cant collateral damage. In this phase, management and human resources have their hands full with harassment complaints, managing sick leaves and hiring new people to replace those who have left or are on leave. Diagnosis and remedies Maintaining a healthy body re- quires attention, prevention and care. Start by identifying which state best describes your situation. Acknowledge that the more seri- ous the disease, the more drastic the measures to take, sometimes generating short-term pain to ob- tain long-term strength. (Yes, you might need to let some people go.) It all begins with modelling civility right from the top. You'll need to hold abrasive leaders at all levels to account. Identify inci- vility-enabling beliefs that might be pulsating beneath the surface (look for beliefs such as "In our line of work, we have no time for nice- ties" or "We're like a family here"). To keep symptoms at bay, equip managers with tools to diagnose incivility and with strategies to know which remedy to apply. Staff also need to be equipped with practical tools for modelling and addressing incivility in a mature and professional way. And if you have a union, consider launching joint respect-boosting initiatives. Putting civility on the corporate agenda can make a huge diff er- ence to business. After all, doesn't everyone perform at their best when the milieu is respectful? Sharone Bar-David is the Toronto- based author of Trust Your Canary: Every Leader's Guide to Taming Workplace Incivility and president of Bar-David Consulting, a fi rm off ering solutions for creating civil work envi- ronments. She can be reached at info@ sharonebardavid.com. The contractual force of employment policies Question: Do employment policies have contractual force? Answer: Particularly in a non- union context, an employer gen- erally has a much easier time en- forcing the terms of an employ- ment policy if it is found to have contractual force — that is, the policy has been incorporated into the employment contract. While every employee has an employment contract, some are written, some are verbal and many are a combination of the two. Others may consist of one or more documents in addition to a basic employment off er letter. e question is whether or not extra- neous documents such as an em- ployee handbook form part of the contract of employment. It is doubtful that simply pro- viding employees with a copy of an employee handbook would be suffi cient to give it contractual force. Having an employee sign a statement that she received the handbook and agrees to the terms and conditions spelled out in the document is a good start, but is still unlikely to give the policies contractual force. Incorporating policies into the employment contract Specifically incorporating the handbook into the employee's contract by stating right in the written agreement that the em- ployee handbook forms part of the contract and providing the employee with a copy of the em- ployee handbook at the time of hire is one way of ensuring the handbook has contractual force. Including a statement right in the handbook that the poli- cies form part of an employee's contract of employment can also help. However, that is probably insuffi cient on its own to give the policies contractual validity (and could be ineff ective or even lead to constructive dismissal claims). While giving policies contrac- tual force certainly makes it easier for employers to enforce policies from a disciplinary perspective, the drawback is it becomes more diffi cult for employers to make changes to policies in the future without amounting to construc- tive dismissal. While employers probably re- tain discretion to make minor policy changes from time to time — and while constructive dis- missal only arises out of unilateral changes to a fundamental term of an employee's contract — some policy changes could easily be ar- gued to be fundamental in nature. ere are some ways around this, including having a clause in employees' written contracts to the eff ect that the organization reserves the right to make chang- es to employment policies at their sole discretion. While such a statement (especially at the time of hire) is likely to be eff ective, simply including the statement in a handbook is a good practice but is unlikely to be eff ective in avoiding constructive dismissal on its own. Another option is to provide long-advance written notice, of perhaps two years or more, of an impending major change to an employment policy. However, employers should exercise cau- tion when using this approach, particularly if one or more em- ployees object to the changes. In such a case, it would make sense to provide the employee with written notice of termination along with a new contract to take eff ect on the day the reasonable notice period expires. e contractual force of policy manuals e 1984 British Columbia Su- preme Court case of Rahemtulla v. Vanfed Credit Union dealt with the contractual force of a policy manual (although this decision was not followed in subsequent cases for other reasons). e judge commented that if the contents of the handbook were to be binding, the document would need to have contractual force. In order for that to apply, there would need to be: a concluded agreement, consid- eration (something of value) and contractual intention. With re- gard to a concluded agreement, the judge said the parties had not "expressed a common intention to be bound by the terms of the policy manual" by way of a signa- ture or implied assent. In terms of the need for addi- tional consideration, the simple continuation of employment by the defendant did not constitute valid consideration (although ad- ditional consideration would not have been required if the hand- book was presented to the em- ployee prior to entering into the contract on the fi rst day of em- ployment). While the general law of contract requires an exchange of "consideration," the value does not have to be very high. In the case of a contractual change, additional or "fresh" con- sideration should be provided to an employee in order to make the change valid. Examples might include a small bonus, a minor bump in salary or a slightly en- hanced benefits package (but clearly the mere continuation of employment wouldn't count as additional consideration). Finally, the question of whether the parties intended to enter into a legally binding agreement was an- swered by the "tone" of the man- ual, which was "informational" at best. e manual only covered certain aspects of the organiza- tion's history, policies, working conditions and employee ben- efi ts. It was not meant to be com- prehensive and was only given to the employee with some vague instruction to read it. In the 2010 case of Nishina v. Azuma Foods (Canada) Co., the B.C. supreme court again had an opportunity to examine the contractual force of an employee handbook. Citing Rahemtulla, the court determined there was no evidence the handbook in question was familiar to the em- ployee, even though she had been with her employer for over four years and signed an acknowl- edgement she had received the handbook. In spite of the fact that a hand- book may be found not to have contractual force, it is still im- portant to have such a document (although it may be more diffi cult to rely on the handbook to uphold just cause for termination). In all cases, it is a good idea to ensure employees read and understand the contents of the handbook and sign a letter to that eff ect and that they agree to be bound by the handbook. It is also advisable for employ- ers to obtain legal advice from an employment lawyer before mak- ing major changes to an existing employee handbook — particu- larly if the organization would like the document to have contractual force. Brian Kreissl is the Toronto-based product development manager for Carswell's human resources, OH&S, payroll and records retention products and solutions. For more information, visit www.carswell.com. Many staff members see themselves as victims, justifying their incivility.

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