Canadian HR Reporter

CANADIAN HR REPORTER June 12, 2017 INSIGHT 31 Richard Nesbitt GUEST COMMENTARY Tim Mitchell TOUGHEST HR QUESTION Putting gender intelligence at the top Since women are the scarcer resource, some would argue their input is more valuable If a particular behaviour is not delivering a desired result, people usually change this behaviour. But sometimes people don't make the change, so they continue to experience the same failing result re- peatedly. Why do people act this way? Undoubtedly, human nature bears some responsibility. But this pattern of "failed behav- iour" plays a major role in the lack of advancement of women at many organizations. Women have changed their behaviour a great deal to achieve what they seek. So why do we continue to believe women can run businesses only fi ve per cent of the time, as seen in a 2015 Unit- ed Nations report looking at the number of women in top roles at the biggest enterprises? Not all men believe this and many men today are strong pro- ponents of change. Yet, it is this failed behaviour on the part of the majority that leads to inferior corporate performance. Women and men not the same First, let's go out to the cliff 's edge and talk about something we rare- ly discuss in the business world — women and men are diff erent. As leaders, we should actively seek this diff erence by bringing wom- en into management teams with men, because this diversity leads to better outcomes. Here is how men used to think: "We need more Margaret atch- ers (former prime minister of the United Kingdom) if women are to lead our corporations. We need more women who act like men." However, we know today this isn't true. Why hire a woman to act like a man when you already have lots of men in positions of management? What do you ex- pect to change? Today, we recognize the solu- tion is not to change women — their innate diff erence from men, when combined with men's per- sonalities, will result in a better outcome almost every time. One author who has done a signifi cant amount of work in this area is Barbara Annis. In her book Gender Intelligence, co-written with Keith Merron, she notes: "Fixing women perpetuates the belief that women's contributions and styles are inferior to those of men. Not only do women feel dis- enfranchised and discouraged be- cause of this blind spot, there con- tinues to be a huge opportunity lost for many organizations given the fundamental shift in business over the past 40 years — the infl ux of women into the workforce and the growing infl uence of women in the marketplace." For Annis and Merron, there is no question women and men are diff erent: "At its core, gender intelligence is an appreciation for the natu- ral diff erences between men and women that goes beyond the biological and cultural to include variations in brain structure and chemistry that infl uence thoughts and actions. Gender intelligence is the awareness that gender dif- ferences are first informed by nature, then infl uenced by fam- ily, and, on occasion, culture and environment." Some may fi nd this tough to ac- cept. How can men and women be so diff erent but with skills that are equally important in a business setting? Since women are the scarcer resource, some would ar- gue their input is even more valu- able for businesses that use it. We seek these differences when we create boards and man- agement teams because we have seen this happen right in front of us when dealing with some of the most diffi cult management situations. So, why have all companies not adopted gender diversity in their strategies? While it can be diffi cult for many, when did diffi cult ever stop anyone? To achieve the de- sired result, there are four lessons to be learned: Know that "different" does not mean "unequal": Many peo- ple collapse sameness with equali- ty, which is inaccurate and hinders the eff ectiveness of this work. By understanding and acting on the knowledge that men and women are diff erent and deserve equal opportunities, you will create as- tounding results. Believe the goal is achievable and see a logical path to achiev- ing it: You must decide whether the thing you are trying to achieve is a dream to be avoided or a genu- ine task that hard work can make into a reality. Break down any preconcep- tions about what is possible and what freedom of action you have: Start with the possibility you have unfettered freedom of action and all the resources you need. Could you then succeed? If the answer is yes, then what is it about the current environment that is stopping you? Deal with that blockage. Use every resource avail- able and do not accept second best or limitations: Build strong teams, hire the best individuals, and guard yourself against a bias to inaction and a bias to yourself. In other words, accept that you cannot achieve the goal alone and you want the most you can get out of others who join you on the task. The above approach led us directly to the observation that a successful leader must seek qualified candidates from the entire available universe of men and women. Teams that have a good balance of both perform to high standards, according to a 2014 Gallup study. And having all companies embrace the need for diversity in their management and governance is an achievable goal. But fi rst they must accept it is something they want to achieve. The advancement of women into management and boards is neither a mission to Mars (near- ly impossible) nor a moonshot (high-cost with indeterminate benefi ts). In fact, it can be done with very little incremental cost, and the results are improved per- formance for your fi rm. But it is not easy — the CEO and chair of the board must com- mit themselves publicly to this goal. There needs to be focus by the entire team on the goal. New management information systems must be produced and made public. Special groups may be needed to clean up the plumb- ing and break down barriers. What if you are offered the project of the advancement of women in management at your fi rm? If you assembled the right team, got the resources you need- ed, had enough time and everyone worked very hard, you could ac- complish your tasks and achieve the goals. Richard Nesbitt is the co-author (along with Barbara Annis) of Results at the Top: Using Gender Intelligence to Cre- ate Breakthrough Growth. He was pre- viously COO at CIBC and CEO of the Toronto Stock Exchange. Notice of dismissal for short-term employees What kind of reasonable notice is required for someone who's still fresh on the job? Question: How much notice for a without- cause dismissal must an employer give a very short-term employee — such as someone with two months of service — who isn't on probation? Are there any other legal issues that could come up in such circumstances? Answer: Guidance on how much notice an employer must give to a short-term employee may be de- rived from two sources: provincial or federal employment legislation; or common law. e statutory entitlements un- der provincial or federal employ- ment legislation are minimum notice entitlements only. For example, in Alberta, the employ- ment standards legislation pro- vides that an employer must give notice of at least one week if the employee has been employed by the employer for more than three months but less than two years. However, unless the employee's employment contract includes an express notice period, or makes specifi c reference to the notice periods contained in the appli- cable employment standards leg- islation, a terminated employee is entitled to reasonable notice (or pay in lieu thereof ) as determined at common law, which generally provides a signifi cantly greater notice period. An employee's right to notice or pay in lieu of notice under com- mon law involves a balancing of a number of factors, including those referred to as the "Bardal" factors. ese are: • the character of the employment • the length of service • the age of the employee • the availability of employment, having regard to experience, training and qualifi cation. The range for common law reasonable notice is typically any- where from zero to 24 months' pay. ere is no general rule that very short-term employees will only receive minimal notice or pay in lieu thereof. In fact, there are a number of examples of short-term employees receiving disproportionately lengthy no- tice periods. In the 2008 Rejdak v. Fight Network Inc., as an example, a former employee who had only worked for one month prior to termination was awarded four months' pay in lieu of notice. Some of the factors — in addi- tion to the Bardal factors — that may be considered, and may give rise to additional legal issues, in- clude: a break in service, economic downturn, inducement, improper cause allegations, improper inter- ference with mitigation, successor employer, near cause, custom and industry practice, promises of job security, and relocation. For example, in cases where an employee has been induced to leave secure employment else- where, and then is dismissed after a relatively brief term of employ- ment, it is likely to increase dam- ages for reasonable notice. In the 2001 McIntosh v. C.T.F. Supply Ltd., for example, the employee was awarded seven-and-a-half months' pay in lieu of notice after only three weeks of employment. In this case, the employee had been induced to leave a stable job he held for over a year. e court found the employer had intended to terminate the em- ployee once he provided his busi- ness contacts. e court went on to say the employer was liable for at least the same notice period the employee could have expected at his prior job. Practically, lengthy common law notice periods can be avoided by including a termination clause in the employment contract. A termination clause must, at least, meet the statutory minimum en- titlements of the applicable em- ployment standards legislation. For more information see: •Bardal v. Globe and Mail Ltd., 1960 CarswellOnt 144 (Ont. H.C.). •Rejdak v. Fight Network Inc., 2008 CarswellOnt 4521 (Ont. S.C.J.). •McIntosh v. C.T.F. Supply Ltd., 2001 CarswellOnt 4643 (Ont. S.C.J.). Tim Mitchell practises management- side labour and employment law at Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or tim.mitchell@nortonrosefulbright. com. Many people collapse sameness with equality, which is inaccurate and hinders the effectiveness of this work. If an employee has been induced to leave secure employment elsewhere, it is likely to increase damages.

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