Canadian HR Reporter - Sample Issue

CANADIAN HR REPORTER November 27, 2017 INSIGHT 27 Colin Gibson ToUghest HR QUestion How human resources can move the needle and get more women on corporate boards We need to be paying more attention to the skill sets of board candidates at there's a desperate need for more women on corporate boards has been established beyond doubt. But change has happened. e World Economic Forum recently released its annual Global Gender Gap report. Canada ranks 16 out of 144 countries. ere has been slight improvement on gender parity not just in the political em- powerment sub-index, but also on the equality of wage. And women directors in TSX- listed companies have grown from 12 per cent in 2015 to 14.5 per cent in 2017, according to Os- ler Law's 2017 Diversity Disclo- sure Practices. These changes, however, are glacial and, increasingly, execu- tives are demanding new laws to quicken their pace. While I'm not in favour of legislated mandates, I must agree with Cindy Gordon, CEO of SalesChoice, when she says that to move the needle sig- nifi cantly, force needs to be ap- plied in the form of legislation. Unfortunately, if compliance is not mandated, change for women to be on tech boards, and other corporate boards, for that matter, will be sluggish. e reported re- sults clearly demonstrate this. At Foresters, 30 per cent of our board are women and an- other 30 per cent of our execu- tive leadership team are women, as well. Why did that happen? It happened with the conscious and deliberate eff orts of our nominat- ing committee — specifi cally, our former board chair and CEO who mandated that more women can- didates be considered when hiring for board positions. HR has a signifi cant role to play in determining the rate at which this change happens. Beyond tick- ing boxes on their diversity check- lists, HR managers should be en- suring that executive and board search criteria go beyond senior- ity in titles, to include expertise in functional capabilities too. For example, if board candi- dacy is restricted to only those who have prior C-suite experi- ence with CEO or COO titles, that alone would limit the number of women who could apply. What's needed is a range of selection cri- teria to fi nd the ideal members, and a willingness to substitute legacy criteria. Increased attention needs to be paid to the skill sets of board candidates, ensuring that they have actuarial or legal experience. HR should be looking for an or- ganizational culture fit. Board candidates who display cred- ibility as collaborative leaders, are invested in developing talent and put the organization's growth ahead of their own career trajec- tory should be favoured. In these areas, research has shown women to be more collaborative and fo- cused on the development of the greater good, beyond their own. Women bring a unique per- spective to boards. They think more laterally and logically than men, are more multi-dimension- al in problem-solving, and can multi-task better. An astute fe- male board member at Foresters attested to this in my conversa- tion with her on the topic. In her experience, women tend to follow the rules better, and don't look for ways to skirt them. People who end up getting into murky cor- porate waters are, nine times out of 10, men. And, women gener- ally have less professional ego and personal agenda invested in the workplace. ey focus on team results. If the hiring criteria were fl ipped to seek those who put the enterprise ahead of themselves, and hold high ethical standards, chances are you'll attract more capable women than men. From the standpoint of expe- rience, if there are two groups of board candidates — men and women — and one available po- sition, inherently, you want to fi ll the position with the cream of the crop from both. So, why dig deep down into the male bucket when the top talent in the female bucket is ready for picking? More women are making de- cisions about life insurance and fi nancial investments. Typically, women are the ones to make more consumer and retail buying deci- sions so, logically, if you want your organization to refl ect your cus- tomer demographic, you would want the people at the top of your organization, meaning the board and executive team, to refl ect that customer demographic. More boards regard HR and compensation expertise as crucial requirements. erefore, it's im- perative to fi nd board candidates who have considerable experience in HR, talent management and compensation expertise. Fifty per cent of HR offi cers at the top 100 corporate employers are women, according to the United States Department of Labor. If that's the case, boards will naturally attract more female candidates. In a previous blog, I wrote about leveraging disruptive talent. at's another highly sought-after skill set that women bring more readily to the table. To me, it's a matter of doing the simple math. Suanne Nielsen is president of the Strategic Capability Network and se- nior vice-president and chief talent of- fi cer at Foresters in Toronto. For more information about the SCNetwork, visit www.scnetwork.ca. at there's a desperate need for more women on corporate boards has been Suanne Nielsen GUest CoMMentarY Policy must be carefully designed to ensure clarity and compliance with law. Refusing to take a post-incident drug test If a worker won't co-operate with drug and alcohol testing, what can an employer do? Question: When an employer has post- incident drug and alcohol testing, can an employee be disciplined for refusing to take a test the same as if the test was positive? Answer: An employer does not have a general right to subject employees to drug and alcohol testing. However, drug and al- cohol testing policies may be implemented and enforced if the policy refl ects an appropriate bal- ancing of interests, between the employer's duty to provide a safe workplace and an employee's pri- vacy rights: See Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd. In Irving Pulp & Paper, the Su- preme Court noted that when a workplace is dangerous, employ- ers are generally entitled to test employees who occupy safety- sensitive positions, if there is "reasonable cause" to believe the employee is impaired while on duty, has been directly involved in a workplace accident or signifi - cant incident, or is returning to work after treatment for substance abuse. Where a post-incident drug or alcohol test generates a posi- tive result, the employer must ensure its response is consistent with the applicable human rights legislation, and in particular that it has satisfi ed its duty to accom- modate any disability (alcoholism or a substance dependence) that aff ected the employee's ability to comply with policy. In the recent decision in Stew- art v. Elk Valley Coal Corporation, the Supreme Court upheld the dismissal of a mine worker who tested positive for cocaine follow- ing an accident. e employer's policy required employees to dis- close any dependence or addiction issues before a drug-related inci- dent occurred. If such information was disclosed, the worker would be off ered treatment by the em- ployer. However, if a worker failed to disclose, was involved in an in- cident, and then tested positive for drugs, she would be dismissed. e court upheld the Alberta Human Rights Tribunal's fi nding that the employee was not ter- minated because of an addiction, but because he had breached the employer's policy. e court re- jected the employee's argument that he did not disclose his addic- tion because he was in denial. It found that even if he was in denial, he still knew he should not take drugs while working, had the abil- ity to refrain from taking them, and had the capacity to inform his employer about his drug use. If an employer has carefully drafted policy that provides for post-incident drug and alcohol testing, an employee's refusal to take such a test may enable the employer to view the refusal as a serious violation and provide grounds for signifi cant discipline: See Rio Tinto Alcan Primary Met- al (Kitimat/Kemano Operations). In Elk Valley Coal Corp.-Ford- ing River Operations, (Edson Grievance), the employee was dis- missed after he refused to provide a urine sample following a work- place accident. The arbitrator found that the employer was jus- tifi ed in requiring the employee to submit to a drug and alcohol test, and that his refusal to take the test was a violation of the employer's policy and amounted to culpable insubordination. However, the arbitrator ruled that dismissal was an exces- sive response, and substituted a four-month suspension. e ar- bitrator made the reinstatement conditional on the employee's agreement to undergo two ran- dom drug tests within the next six months, and to acknowledge that if either test was positive, the employer could deal with the vio- lation as laid out in its policy. If an employer wishes to treat a refusal to take a post-incident drug or alcohol test in the same manner as a positive test result, it should ensure this is clearly spelled out in its policy. In Vancouver Drydock Co., the employer asked the employee to take a test to determine blood al- cohol content, after a supervisor smelled a slight odour of alcohol on his breath. When the employee refused, he was notifi ed that the refusal would be treated as a positive test result and he would be suspended. e arbitrator ruled that the employer did not have reasonable grounds under its policy to require the employee to submit to an alcohol test. The policy was found to be vague in terms of how the test would be administered and the level of blood alcohol that would result in a positive fi nding of im- pairment, and was completely silent on the consequences of re- fusing to take a test. e arbitrator ruled that these fl aws disentitled the employer from treating a re- fusal as a positive test result. Drug and alcohol testing poli- cies must be carefully designed to ensure that they are drafted in clear and unambiguous terms, and that they comply with the law. At a minimum, the policy should outline the circumstances where a test will be required, how the test will be administered, how a positive result will be de- termined, and what the conse- quences will be for an employee who refuses to take a test. For more information see: •Irving Pulp & Paper Ltd. v. CEP Local 30, 2013 CarswellNB 275 (S.C.C.). • Stewart v. Elk Valley Coal Corp., 2017 CarswellAlta 1023 (S.C.C.). •Rio Tinto Alcan Primary Metal v. CAW-Canada, Local 2301, 2011 CarswellBC 353 (B.C. Arb.). •Elk Valley Coal Corp. and USWA, Local 7884 (Edson), Re, 2005 CarswellBC 3950 (B.C. Arb.). •Vancouver Drydock Co., [2009] B.C.C.A.A.A. No. 77 (Munroe) (B.C. Arb.). Colin Gibson is a partner at Har- ris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com.

• Cover