Canadian HR Reporter

CANADIAN HR REPORTER November 13, 2017 INSIGHT 35 Brian Kreissl ToUgHest HR QUestioN An in-between mechanism for sexual harassment Training has to be part of larger dialogue ensuring appropriate culture change I was chatting with a colleague — a female HR director — about a conversation she had with other business leaders, all men. She mentioned a word they had used to de- scribe something that was happening in the offi ce at that time. It was a cuss word with serious sexual connotations. I know her to be a person who doesn't even use swear words so I asked, out of curiosity, if she felt comfortable about it. It seemed that many conversa- tions she was a part of involved usage of such language, and she could not really aff ord to object, even in the mildest way: "It will af- fect my relationship with the busi- ness leaders, which I have worked very hard to build. ey will not be as friendly with me, if I object. So, I bear with it." is is not a stand-alone case. I have come across many women describing variations of a simi- lar experience they may have encountered: • An adult joke, sometimes with the woman colleague being a character in the joke itself. • Someone complimenting a per- son's fi gure and curves in a way that feels more uncomfortable than a compliment. • Standing too close. • Trying to give a hug when you are only on "handshake" terms. • Behaving inappropriately at an offi ce party, under the pretext of "Oh, I was drunk." • e famous roving eye. So here's the problem, and there are two: Firstly, a safe work- place does not just mean safety from "sexual harassment" — it is also safety from "gross acts of insensitivity." Secondly, most women just grin and bear it, not because they are OK with it but because: • male colleagues will take off ence at the feedback • it may seem "too trivial" so "why make an issue out of it" • they may feel they will be tagged as "trouble-makers" or called names • it might impact how the "estab- lishment" sees them and their future at the organization • they may fear alienation and ridi- cule by colleagues • they may fear losing the rela- tionship itself if the colleague is a friend • if the trespasser is a "senior," there may be an impact on work and career opportunities • if the women are senior executive members, then their leadership positions and peer acceptance in the executive circle will be at stake. Organizations, as a solution, off er only two extremes: Ignore it or file a sexual harassment complaint. It is the lack of any- thing in between that should be questioned. At some organizations, the most that happens is a round of sexual harassment policy ses- sions for employees. ese are a one-time aff air and do nothing to address the day-to-day nuances of the matter. At many organizations, even that is missing. A safe place to work needs to have the right culture before it needs compliance. Having been in HR, I have un- fortunately witnessed HR profes- sionals discuss what are meant to be confi dential harassment cases as party jokes within the team. Just the other day, one of my HR peers was sharing how his boss, the head of HR, talks about women in a derogatory manner, behind closed doors. Not everyone in HR is like that, but there is a defi nite gap. So fi rstly, chief people offi cers have to start sensitizing their own teams fi rst. We cannot assume that just because HR has the for- mal ownership, every HR person is naturally geared for a responsi- bility like that. Secondly, sexual harassment training has to be a small part of a larger dialogue: • Dialogues that build a common organizational understanding of what is OK and what is not. • Dialogues that discuss scenarios of what a "no" looks like, and how we can respect it. • Dialogues that bring out the dis- comforts and grudges, and make candour safe. Many of these require very strong facilitation skills (not the ones that are powered by Power- Point presentations). Organizations must invest in developing such facilitators internally — because these dia- logues have to be continuous and sustained. at is the only way culture gets built. Thirdly, realize that a sexual harassment policy is a neces- sary but not suffi cient redressal mechanism system — there has to be something in between — for example, a council of the wis- est (note, I didn't say most-senior) people both in and outside the organization who can facilitate a conversation, when the need arises. is is for when a woman thinks it is not harassment but it is still something she does not want to ignore; to ensure she doesn't have to choose between tolerating an indignity just because she thinks it is not big enough to fi le a sexual harassment charge. I want to put a strong caveat here. Unfortunately, in cases when the transgressor is a senior executive, human resources is not always completely neutral. Some- times they are given the task of "managing the situation." (Not all organizations are like that — thankfully, there are a few brave ones out there.) An in-between mechanism should make it easier for women to share daily discomforts, and not be a way to "manage" and un- derplay a transgression by a good performer or senior person. Our endeavours to build a safe workplace for women can never be complete until we build an organization where it is safe for women to say no. Swati Jena is the founder and CEO of GhostWritersWorld. For more infor- mation, visit www.ghostwritersworld. com. Terminating a probationary employee Beware of potential pitfalls before making the decision to terminate Question: We have a new employee who just isn't working out. How can we termi- nate him legally and fairly without having to provide notice or pay in lieu of notice? Answer: Depending on the situ- ation, it may be possible to ter- minate a new employee without providing notice or pay in lieu of notice. However, there are a num- ber of potential pitfalls you need to be aware of before making the decision to terminate. While it is very common for employers to arrange the first three or six months of employ- ment to be probationary, a court will not infer a probationary peri- od in the absence of a contractual provision to that eff ect. Because of that, it is important to spell this out in a written employment agreement or employment off er letter signed by the employee be- fore the fi rst day of employment. It is possible to terminate a pro- bationary employee with little or no notice, but both parties have to agree on the probationary period. In the absence of such a provision in the employment contract, a court will apply reasonable notice in the event a non-union employ- ee is dismissed without notice or cause during the fi rst few months of employment. Employers of unionized em- ployees need to comply with the collective agreement, but some agreements stipulate that employ- ees won't be covered by the col- lective agreement until after they have passed their probation (so the same rules would apply as with re- spect to non-union employees). Probationary periods and employment standards Another potential problem, for example, is when probationary periods extend beyond three months when the applicable em- ployment standards legislation provides for notice after three months. In particular, many em- ployers these days have six-month probationary periods. Legislation in most Canadian jurisdictions mandates that at least one week's notice must be provided on termi- nation (other than for cause) after three months (some even provide for two weeks after three months or one week after 30 days). In such cases, it is important to provide minimum notice or pay in lieu of notice that complies with the governing legislation — even if the probationary period extends beyond the threshold of one or three months. e mini- mum notice required is one week in Alberta, British Columbia, Manitoba, Newfoundland and Labrador, Nova Scotia, Ontario, Quebec, Saskatchewan and the Yukon, and two weeks in New Brunswick, the Northwest Ter- ritories, Nunavut, Prince Edward Island and federally. A threshold of 30 days for when those notice requirements begin to apply under the applicable em- ployment standards legislation is required in Manitoba; it's 90 days in the Northwest Territories and Nunavut; three months federally and in Alberta, British Colum- bia, Newfoundland and Labra- dor, Nova Scotia, Ontario and Quebec; and six months in New Brunswick, P.E.I., Quebec and the Yukon. However, in the absence of a probationary period or a valid termination clause in an employ- ee's contract of employment, it is important to note that simply complying with the employment standards minimums may not be suffi cient. A court could potentially award considerably more in a wrongful dismissal case — particularly if a short-serving employee was induced or enticed to come and join the employer from a secure position elsewhere. Avoid terminating on a whim ere is a misconception among many employers and the general public that a probationary em- ployee can simply be terminated on a whim — essentially for frivo- lous reasons or for no reasons at all. is is incorrect. While the threshold to termi- nate a probationary employee is much lower than the standard required for just cause termi- nation of a "regular" employee, probationary employees should be given an opportunity to prove themselves and be provided with performance expectations and feedback. They should also be given an opportunity to improve their performance where it is found to be lacking. Complete a probationary review It is very important to conduct a probationary review before the probationary period is over. is is particularly important in cases where the employee has not passed her probation and is being terminated. Otherwise, if you wait until after the conclusion of the pro- bationary period, the employee is no longer on probation and higher standards (and notice require- ments) apply. Probationary reviews should be somewhat formal and provide feedback to the employee. Even if the individual is being kept on, the review should provide both posi- tive and constructive feedback. In some cases, it may be pos- sible to extend the probationary period. However, this requires the consent of both parties and the situation can be rather dicey. erefore, it is a good idea to obtain the advice of a qualifi ed employment lawyer before doing so. Brian Kreissl is the product develop- ment manager for omson Reuters Legal Canada's human resources, OH&S, payroll and records retention products and solutions. He can be reached at brian.kreissl@tr.com. Employers offer two extremes: Ignore it or fi le a complaint. A lack of anything in between should be questioned. I was chatting with a colleague — a female HR director — about a conversation she had with other business leaders, all men. She mentioned a word they had used to de- scribe something that was happening in the offi ce at that time. It was a cuss word with serious sexual connotations. I know her to be a person who doesn't even use swear words so I asked, out of curiosity, Swati Jena GUest CoMMeNtarY

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