Canadian HR Reporter

February 22, 2016

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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CANADIAN HR REPORTER February 22, 2016 INSIGHT 23 Robin Schooling GUest CoMMentary HR service delivery: Signed and sealed We can be competent, caring professionals without being solemn, dour robots Looking for a hot conversational topic when you're stuck chatting with a bunch of HR professionals? Whether you're sitting with two of them at the train station or stuck at some in-house train- ing session with your company's entire HR team, here's a surefi re discussion starter: Ask them who they serve in their organization. In other words, whose needs are they there to meet or satisfy? e business? Leaders and managers? Employees? I guarantee this exchange will be both captivating and heated. I've participated in informal roundtables with this as the topic du jour and enjoyed cocktail par- ties where the discussion on this subject was so tempestuous, we managed to barely escape just short of actual fi sticuff s. e answer, proff ered by your average HR practitioner, to this seemingly basic question will vary based on any number of factors: e type and size of organization he has worked in as well as the sort of organization in which he was trained in the ways of HR. e answer will be formulated depending on the HR profession- al's previous mentors or bosses, and also the type of specifi c roles she has held in the human resourc- es field. What was measured? What mattered? (Note: Contrary to popular opinion, what matters does not get measured nor does what gets measured… matter.) e answer, as far as I'm con- cerned, is "HR serves everyone." We serve the needs of the busi- ness. In accordance with laws, regulations, policies and the dic- tates and desires of our CEO or business owner, we serve, protect and defend. We serve the needs of manag- ers and leaders. We don't cover up their shenanigans, of course, but neither do we bring them down and lay blame. Rather, we assist them in everything related to the management of their peo- ple/human capital/resources. We coach, guide and support them so they can focus on running the business. We serve the needs of employ- ees. We hold their hands, we an- swer their questions and we help them solve problems. We may, depending upon the need, talk to their mothers, spouses, priests or parole offi cers. And when we do all this right, we are also serving the needs of those who are external to our or- ganization — our candidates, our communities and our customers. Here's the deal — so often in human resources, we've tended to think of these things as mutu- ally exclusive: "I can't be an advo- cate for employees if my role is to protect the needs of the compa- ny" is something I've heard more than one HR practitioner say. Or "I need to maintain impartial- ity so I can't be too friendly with employees." Both of which, of course, are ut- ter crap. You can work in HR and be a competent and caring busi- ness professional without being a solemn and dour robot intent on spreading doom and gloom with every policy update. You can serve others without being servile or subservient. It's not the role of the HR lady to, bake muffi ns for birthdays and holidays, and take minutes at the weekly leadership meeting — but you can still be pleasant and kind. e strategies and goals of the business inform what HR does but the how is what each of us as HR professionals determine once we realize who we serve. e how is the magic sauce. is question "Who does HR serve?" is perhaps the most ele- mental aspect of human resources and goes well beyond a practitio- ner grasping the bodies of knowl- edge or being fully capable in the HR competencies. The answer lays the foundation for a person's entire career in and around HR. So, I wonder — how many hu- man resources professionals are truly delivering to all? Robin Schooling is an HR leader, strat- egist and advisor with senior-level ex- perience in all areas of HR manage- ment. She is also an advisory board member for Blackbook HR and can be reached at or (225) 931-5934 or visit robinschool- for more information. This question of "Who does HR serve?" is perhaps the most elemental aspect of human resources. Misconduct on last-chance agreements Can these agreements stipulate further misconduct will result in dismissal? Question: Can a last-chance agreement stipulate that any type of further mis- conduct will result in dismissal, or does the misconduct leading to dismissal have to be related to that leading to the last-chance agreement? Answer: Yes. e terms of a last- chance agreement (LCA) must be clear so it is easy to identify when there has been a contravention. Where the LCA stipulates the types of misconduct that will lead to dismissal, termination for such misconduct will likely be upheld, whether or not related to the be- haviour leading to the LCA. However, where the wording about the misconduct that will lead to termination is vague, an arbitrator may interpret this as intended only to apply to miscon- duct related to the behaviour lead- ing to the LCA. In Potash Corporation of Sas- katchewan (Allan Division) and United Steel Workers, Local 7689, an LCA was put in place for an employee with alcohol addiction. It stipulated the employee was required to abstain from alcohol and illegal drug use, and if he did not, his employment would be terminated. When the employee tested positive for marijuana, his employment was terminated. e union argued the termi- nation should be overturned be- cause drug use was not related to the purpose of the LCA, which was to address the employee's al- cohol addiction. The arbitrator held that the terms of the LCA were clear and specifi c, and both the union and employee had agreed to the ter- mination of employment for il- legal drug use. Recognizing that the agreement only occurred as an alternative to termination, the arbitrator said the union and em- ployee could have refused to sign if they believed the terms were too harsh, and pursued a termination grievance instead. e breach of the LCA was signifi cant miscon- duct, warranting termination. While there are exceptional cases where a termination may be found to be excessive, in this case, "given the lead up to the (LCA) and the understanding of the parties, it is not justifi able to go behind the terms of the agree- ment," said the arbitrator. Contrast this with the fi nding in Luscar Ltd. v. I.U.O.E., Local 115, where the arbitrator interpreted the more general wording that "any further misconduct" meant only misconduct related to the original behaviour that led to the employee's last chance. In Luscar, a last-chance letter had been given to the employee after aggressive and threatening behaviour towards colleagues. It stated, "Any further misconduct will result in termination of your employment." e employee was terminated after failing to use his safety glass- es, a breach of company policy. Although the employer argued the term "any further misconduct" was intended to mean misconduct of any type, the arbitrator inter- preted the words as "any further similar misconduct." e arbitra- tor found dismissal for the safety infringement was not justified based on the last-chance language. Obviously, the key to an en- forceable LCA is the parties agree on what misconduct will result in dismissal, and this is set out clearly. For more information see: •Potash Corporation of Saskatche- wan (Allan Division) and United Steel Workers, Local 7689 (Dec. 17, 2013), D. Ish – Arb. (Sask. Arb.). •Luscar Ltd. v. I.U.O.E., Local 115, 2001 CarswellBC 3617 (B.C. Arb.). Brian Johnston is a partner at Stew- art McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohn- Brian Johnston ToUghest HR QUestion "That there is an inverse relationship between exorbitant CEO salaries and employee motivation comes as no surprise. As an employment law lawyer whose clientele is primarily employee- based, I speak from experience when I state that this is only one of the indices which causes workforce cynicism and alienation. These, in turn, translate into low productivity, absenteeism and poor health. Each negatively affects the bottom line. CEOs are arguably entitled to a higher salary than their foot sol- diers for a variety of reasons but, at some point, there is a diminish- ing return when the disparity is grossly disproportionate to the sal- ary of the average worker. I believe that the workforce would be ready to accept a reason- able cap with additional compensation in the form of increases or bonuses tied into positive results. Higher salaries based upon merit would be more palatable, especially if it trickles down to those on the lower rungs of the corporate ladder. As the saying goes: 'A rising tide lifts all ships.'" — Shelley Brian Brown, commenting on Claudine Kapel's blog "Pay gap between CEOs and workers taking its toll." "It is a topic that really is a) pertinent and b) overdue to be addressed. Performance assessments or rather their failure has nothing to do with the failure of people managers or even managers in general. Nor has it to do with reluctance of people to give feedback. No, the failure of performance assessments lies in the fact that they do not assess performance. In broad terms, they assess compliance and masquerade as performance assessment. There are two underlying issues: First, what constitutes performance in people and; two, who can assess that. Let us take the second first: The one who can assess performance is only the recipient of the performance purpose, i.e. the customer, the manager and especially the people manager are rarely in that position and therefore incompetent and irrelevant to conduct this assessment. So, what constitutes performance? Performance is the ability to stabilize all process and process elements under one's control, the ability to continuously improve on the creation and delivery of the designed output, and the ability to assess whether that output still addresses the value cluster in the stakeholder. So performance in short is being competent in the job (all processes are statistically stable), being able to improve and being able to innovate. It's nothing to do with meeting targets or KPIs. None of the current performance assessments evaluates this framework. — Brian Forthyte, commenting on Claudine Kapel's blog "What's really broken with performance management?" Join the conversation. 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