Canadian HR Reporter

CANADIAN HR REPORTER JANUARY 2018 INSIGHT 19 Brian Johnston ToUGHest HR QUestioN Sears Canada: The inside story On cusp of closure, iconic retailer has worked hard to help employees transition By Jennifer Pierce is year, Sears Canada will close its doors after serving Canada for more than six decades. From our roots as a catalogue mail-order house with our iconic Wish Book to a coast-to-coast retailer with over 400 locations at its peak, Sears Canada has been a part of the Canadian landscape for multiple generations. And while Sears Canada has had some intense media coverage over the last few months as it began to wind down operations, we'd like to tell a diff erent side of the story. As the saying goes, the story on the outside is not always the story on the inside. is has never been truer than with Sears Canada. For us insiders, it has been a tale of two journeys — the in- cubator business and the legacy business. For the past several years and, most earnestly, the past two, our 16,000 employees have been on a mission to reinvent a Canadian icon. We were de- termined to wow our custom- ers, our communities and each other. We were #WowNation and we truly felt this was our time. And we made some serious traction. For the fi rst time in 11 quarters, same-store sales were up in the third quarter of 2016 and the fi rst quarter of 2017. Our brand reinvention was getting noticed, as evidenced by winning multiple marketing awards with campaigns such as WTS? (What the Sears?) and #weveCHANGED. But on June 22, 2017, we sadly ran out of runway. e incubator business was simply not enough to offset the legacy business constraints. Our greatest collective disap- pointment is that customers did not get to see all that we had imag- ined we could bring to them. Taking care of employees Sears has a culture rooted in com- munity and family. e associates care deeply for customers and for one another. It is one of the most caring cultures I've had the privi- lege to be a part of. Once it was determined the company would be liquidated, we channelled our focus from rein- venting a Canadian icon to doing everything possible to helping employees transition into their next roles. We had a goal — regardless of level or employment status (part- time, full-time or contract), we wanted to create and implement a best-in-class career transition support program. We knew the off erings needed to be accessible to as many people as possible. Whether associates worked in a major city or a small town, whether they were experts on the computer or a step above "Is it on?" we were driven to create a program that was user-friendly, practical and helpful. Our off erings needed to include in-person, digital, employer out- reach, government agency sup- port, individual-needs assess- ment, as well as school and pro- fessional information. So, we got to work. Career transition support As we started down the path of creating the programs, our sole mission was to make some really tough questions — "What will I do next? Where do I start?" — a little less overwhelming. We wanted to create a space, a community, where anyone look- ing for their next opportunity felt confi dent they had the best pos- sible information and job search tools at their fi ngertips. We recognize that people learn in diff erent ways, so we took our off erings and created an omni ap- proach — digital, in-person work- shops, webinars and one-to-one off erings. Associates were given access to coaching labs, practical career support tools, direct links to the most used job-search sites, more than 100 company career sites and a series of videos that spoke to the future of work that provide inspi- ration on a grey day. In addition to delivering career transition support in a group en- vironment, one-to-one career coaching support was off ered to all associates. In these sessions, expertise was provided on re- sumé writing, interviewing and networking. We even got to relive our youth with a picture day — having inter- nal photographers take LinkedIn headshots, complete with blow- ing fans, professional lighting and Photoshop at the ready. Employer, government outreach roughout this process, we have been overwhelmed by Canadian kindness. Companies from various indus- tries have come forward wanting to help. Strangers and friends have reached out via LinkedIn, direct calls or emails off ering their assistance. ey recognize the talent we have at Sears and off ered to pro- vide a fast track to interview for their open roles. From these gen- erous messages, our employer outreach program was created. Where possible, we have had dozens of employers come to our stores, distribution and call centres as well as our head offi ce locations to interview our associ- ates. We have had other employ- ers provide our associates with a direct line to their recruiters. We have had recruiting companies come on-site and give our asso- ciates inside tips on hot skills in the market, as well as the inside scoop on how to do an interview with recruiters. To expedite the introductions across Canada, we created an internal website as well as two LinkedIn groups (Talent@Sears Canada and Field Talent@Sears Canada) to promote Sears talent to employers across the country. We have also seen the best of Canadian government agencies. Service Canada, Emploi Québec and a host of other local agencies were quick to get in touch with us to let us know they could help. We have hosted any and all agencies interested in helping us in our stores, distribution and call centres. e agencies have provided in-person information sessions on resumé writing, em- ployment insurance, job banks and how to manage the career transition. Leadership and communication Every leader at Sears truly believes their work will only be fi nished when every one of their associates has found alternate work. Our leaders are working tire- lessly to communicate our ca- reer transition support services to employees, and taking time to work with them individually to ask them how their search is progressing, lend an ear, provide a reference, or simply say thank you. It's been quite a ride, and I couldn't be more proud of our employees. eir resilience, de- termination, agility and team- work have left me speechless on multiple occasions. So, the next time you come across someone who worked at Sears Canada, give them a high- fi ve and ask them to tell you their story of our mission to reinvent a Canadian icon. I think you'll fi nd their stories to be fi lled with anticipation, de- termination and accomplishment for how far we got — regardless of the outcome. We sign off with gratitude and appreciation on behalf of the en- tire Sears leadership team from coast to coast. Jennifer (JP) Pierce is the senior vice- president of human resources at Sears Canada. Allowing for changes in employee duties How much leeway is necessary before constructive dismissal becomes a concern? Question: Can an employer avoid the risk of constructive dismissal or the need for fresh consideration if an employment agreement states the duties and nature of an employee's position can change ac- cording to the employer's needs? Answer: e answer is yes, an employer can provide for chang- es in an employee's position in the employment agreement. e challenge, of course, is accurately anticipating and stipulating the changes in advance so they are covered by the agreement. Following the 2015 Supreme Court of Canada decision in Pot- ter v. New Brunswick Legal Aid Services Commission, constructive dismissal most commonly results from a unilateral change by the employer that substantially alters an essential term of the contract. Alternatively, it can result from a course of conduct by the em- ployer that, taken together, dem- onstrates that the employer no longer intends to be bound by the employment contract. However, if the employer and employee agreed that the em- ployer has the ability to change specifi c aspects of the employ- ment relationship, and those con- templated changes are refl ected in the employment contract, then that change is not a unilateral act by the employer and therefore not constructive dismissal. In Potter, the court said: "If an express or an implied term gives the employer the authority to make the change… the change is not a unilateral act and therefore will not constitute a breach. If so, it does not amount to constructive dismissal." Having said that, terms of this nature need to be crafted with care. Courts expect that any agreed-up- on future change would not be so broad as to be meaningless. Vaguely permitting an employ- er to change terms and condi- tions "according to the employer's needs" would likely fall into that category. erefore, it would be helpful to outline possible chang- es in the agreement, as suggested in the question. It would similarly be helpful to outline possible changes in a policy, assuming that policy was incorporated into the contract. If not, any such change would likely be unilateral, although the policy could still be helpful in the deter- mination of whether the change was so substantial as to constitute constructive dismissal. We know that changes to the employment relationship that at- tract claims of constructive dis- missal include changes to an em- ployee's job title and responsibili- ties, reporting relationships, and compensation structure. If those changes are contemplated by the employer in advance, they could be specifi ed in the employment agreement as examples of accept- able changes that would not be considered constructive dismissal. Ultimately, a court would scru- tinize the intent of the parties at the time the agreement was en- tered into. For example, even if the employment agreement generally stated the employer may make changes to the compensation structure from time to time, there is a risk that a court may fi nd that while a certain degree of change was contemplated, at a certain point an actual change to com- pensation would be so substan- tial that it cannot be said to have been contemplated and agreed to by the parties. A change that resulted in the reduction of an employee's six-fi g- ure compensation to an amount near minimum wage is an ex- treme but obvious example. The more clear and specific the term providing for changes to the employment relationship, the more likely an employer can rely upon it to fend off an allegation of constructive dismissal. Brian Johnston is a partner at Stew- art McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewartmckelvey.com To expedite introductions, we created an internal website as well as two LinkedIn groups to promote Sears talent to employers across the country. is year, Sears Canada will close its doors Jennifer Pierce GUest CoMMeNtArY

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