by Linda Gaudet

United Steelworkers, Local 8918 and Gerdau Ameristeel, (2011 C.L.A.S. 283)

In December 2010, a steel mill in Cambridge, Ontario l introduced a new biometric scan system to track employee attendance and work hours. The employer’s other mills already used this technology.  The Cambridge mill’s reliance on manual data was resulting in errors in pay, resulting disputes with employees, and unnecessary administration time.  The scan system introduced contained many protections against hacking, replication of the biometric data, and other risks to employee privacy. However, employees were not convinced and following the system’s introduction the union filed a policy grievance.

Earlier arbitration decisions on use of biometrics were divided on whether such employer innovations were an appropriate exercise of management rights under a collective agreement. The cases which found in favour of the employer did so based on the following criteria:

• the employer’s demonstration of a compelling business case;
• evidence that the collection of the requisite data was minimally intrusive; and
• enhanced security features, both in the design and implementation of the technology, that were responsive to any potential concerns about employees’ privacy.

Arbitrator Susan Tacon found that the biometric system used by the employer met this criteria.  Further, there was no violation of the collective agreement; thus, the introduction of the scan system was a legitimate exercise of management rights.   Tacon  identified the “principle of proportionality” as the critical factor when balancing the employer’s right to manage its employees against the new technology’s potential intrusion on employees’ privacy rights. She noted that  the system was not physically intrusive, time consuming, or painful to use and that further improvements in security protection had been made in the scan system in contention as compared with those in use in the earlier cases.

This non-profit organization provides women business owners with the resources they need to improve their growth and competitiveness. It’s mandate is to provide women with a provincial organization that will:

• Support and promote women business owners
• Provide information and educational opportunities for women business owners
• Increase community awareness regarding women active in business across the province; and,
• Be the recognized voice for women business owners in Prince Edward Island

Constance is excited by the opportunity to work with this organization.  Women continue to lead business growth in small and medium sized enterprizes.  From 1999 to 2009, the number of self-employed women grew by 13 percent compared with 10 percent for men.   However, she believes that there is still room to accelerate these numbers.  Women business owners tend to be  younger than their male counterparts. (In 2007, women owners had an average of 48.5 years of age as compared with 51.1 years of age for male counterparts.) Furthermore, women business owners tend to have less experience. (In 2007, 51 percent of women business owners had more than 10 years of management or ownership experience as compared with 74 percent for male counterparts).  Constance believes that organizations like the PEIBWA can bridge that experience gap by pooling our experiences, wisdom, and knowledge.

by Linda Gaudet

Communications, Energy and Paperworkers Union of Canada, Local 30 and Irving Pulp & Paper, Ltd. (2011 N.B.C.A. 58, CanLII)

For some time there has been an uncomfortable tension surrounding alcohol testing in the workplace.  In an effort to limit the employer’s intrusion into employee’s off-work conduct, there was a line of decisions challenging the ability of an employer to have truly random employee testing.  Our clients with safety-sensitive positions were frustrated that the apparent test was that they had to wait until they had cause (such as a safety incident) before they could require an employee be tested.  However, the law in this area is still evolving, and a recent New Brunswick case offers some guidance.

In 2006, Irving Pulp & Paper, unilaterally adopted a workplace policy at one of its kraft mills requiring employees in safety sensitive positions to submit to mandatory and random alcohol testing by breathalyser. Each year, a computer would randomly select for testing the names of 10% of the employees holding such positions.

The union filed a policy grievance arguing against the “without cause” nature of the policy, believing that the employer had to first show the existence of a particular problem with alcohol in the mill before initiating random alcohol testing.  The majority of the arbitration board applied a harsh test requiring the employer to establish that the mill operations created an ‘ultra-dangerous’ risk of harm sufficient to outweigh an employee’s right to privacy, suggesting that the workplace would have to be the equivalent of  a nuclear plant, an airline, a railroad, or a hazardous chemical plant to warrant a random alcohol testing policy. and similar operations. The dissenting board member found that the kraft mill was in fact “highly dangerous” such that proof of a pre-existing alcohol problem in the mill was not necessary to establish the policy was reasonable.

On judicial review the New Brunswick Court of Queen’s Bench struck down the arbitration award, holding that once the majority had found that the workplace was inherently “dangerous” (as opposed to “ultra-dangerous”) with a “potential for catastrophe”, it was unreasonable to require the employer to provide evidence of a pre-existing alcohol problem at the mill.

The Court of Appeal unanimously endorsed the lower court decision finding that it was unreasonable to require an employer to demonstrate the existence of an alcohol problem in its operations where those operations are “inherently dangerous”. The Court of Appeal also relied on a decision of arbitrator Picher in another case involving a different Irving company engaged in sawmill operations where random alcohol testing was introduced by the employer. In that case, Picher held that the test for this type of alcohol testing was to ask ” . . . what consequences are risked if the person performing a particular kind of work does so impaired by drugs or alcohol. . . . Those performing tasks while impaired by drugs or alcohol in circumstances where they pose a safety risk to themselves or others or to property or equipment fall within the classification of safety sensitive positions.”.

This Court of Appeal decision then provides considerable guidance and support to employers considering random alcohol testing in operations that are inherently dangerous. It must be stressed that any random alcohol testing should be limited to employees in safety sensitive positions only and that this decision applies to alcohol testing only.  At this time, the technology for other drug testing is still considered to be  more invasive of privacy and its results are both less reliable and unrelated to the state of impairment of a person at the time the drug test was administered.  For example, knowing that an employee used cocaine sometime in the last number of weeks does not necessarily mean that they were under its influence at the time of the random testing.  The lesson: privacy interests will give way to safety concerns if the intrusion can reduce the hazard.

The Greater Charlottetown Area Chamber of Commerce (GCACC) serves as the “Voice of Business”on economic issues
and provides networking and business development opportunities for its 900+ members.The GCACC is searching for its next leader.

Executive Director

Reporting to the Executive of the Board, the Executive Director is a highly motivated and energized individual focused on leading the GCACC team to achieve its goals and meet the challenge of promoting the interests of the greater Charlottetown area business community.

As the ideal candidate, you have a business degree or a combination of post secondary education and significant senior management experience.  In your career to date, you have demonstrated your exceptional communication and interpersonal skills and your ability to connect with business owners and operators, government at all levels, and other community stakeholders.  You have a keen understanding of the needs of businesses operating in the greater Charlottetown area and the desire to advocate on behalf of all GCACC members.

The Chamber offers a competitive salary and benefit package for this position.  Qualified candidates are invited to submit a detailed resume and cover letter by noon Wednesday, February 22, 2012 to:

HRA
1 Harbourside
Charlottetown, PE C1A 8R4

We thank you for your interest, but only candidates selected for an interview with be contacted.
No telephone calls please.

by Linda Gaudet, HRA

Teamsters Canada Rail Conference v. Canadian Pacific Railway Company (Canadian Railway Office of Arbitration & Dispute Resolution)

In a June 2010 decision (Case 3900), Arbitrator Picher upheld CP Rail’s policy of asking employees to provide records of their personal cell phone use following a serious workplace accident. Picher reasoned that this policy did not violate the employees’ privacy rights and was “ . . . a reasonable and necessary exercise of the [ the employer’s ] management prerogatives, in the pursuit of safe operations.”

Following this decision, CP Rail expanded the situations in which it demanded employee cell phone records:

• for the entire period of the shift on which a serious accident occurred
• for concerns over employee productivity
• for unredacted information in an employee’s personal phone records where an engineer was terminated for alleged unsafe operation of a train

and disciplining employees who refuse to provide their personal cell phone records where no significant accident or incident has occurred.

Not surprisingly, the Union grieved.  The dispute came back before arbitrator Picher (Case 4038) for resolution. This time he found in favour of the union on three of these issues, but confirmed that it was reasonable for CP Rail to demand an employee’s cell phone records for the entire shift on which an accident occurred.

While Picher’s second decision put a stop to CP Rail’s attempts to stretch the bounds of his original decision beyond safety-related concerns,  this second decision recognizes and confirms the employer’s legitimate interest in perusing such records for a reasonable period before and after an accident, ie., the entire shift on which the accident occurred.

Making New Year’s resolutions is in decline.  I know of far more people who talk of not making resolutions than those who do.  But rather than giving up on resolutions, perhaps we need to look at why we don’t think they work.  Instead of making resolutions, maybe we need to make Resolactions.

While New Year’s resolutions are often scoffed at for their low success rates, with nearly 60 percent of people dropping their resolutions by the six-month mark, those who make resolutions are still 10 times more likely to successfully change their behavior than those who do not.  And so, at the outset of another year, we can use behavioural science to help us make personal and professional resolutions to improve ourselves, our relationships with others, and our work.

Science offers some clues as to how we can succeed with these resolutions.  Psychologists have studied the factors that improve the success of behavior change.  These studies suggest two keys to improving the likelihood of success: belief that you can succeed, and taking action to make success possible.

Self-efficacy, or the belief that you can effect and maintain a change is fundamental.  This has long been understood by psychologists, and is reflected in the work of  University of Scranton’s John Norcross, PhD, University of Rhode Island’s James Prochaska, PhD and University of Maryland’s Carlo DiClemente who developed the transtheoretical model of behavior change.  This model recognizes change as a process rather than an event.  An individual desiring change must first believe that change is possible.

The process of change involves belief, readiness to change, and action to prepare for change.  Norcross found that readiness to change, or how prepared a person is to enter the action stage of behavior change, to be the single best predictor of New Year’s resolution success.  The size, complexity, or importance of the change has little to do with its success.  Similarly, thinking about change, and talking about change does little to effect a change.  So putting up pictures on the fridge, or articles on the lunch room bulletin board, or having a scale in the bathroom has a low success rate.  Instead, we need to inject action into the resolution to make it stick (which isn’t a surprise!).

So how do we prepare for change?  We need to determine how we are going to define success, and what reward success will bring.  We also need to think about how we will treat set-backs, and acknowledge that the road to success will not be smooth.

Applying these learnings to our desires to change workplace behaviours, here are some things to think about:

• How can we set up systems to reward new desired behaviors? (We don’t reward weight loss with a brownie, or prompt attendance with a pass to reporting to work late)
• How can we avoid situations where lapses into old behaviors are highly likely? (We don’t have coffee with friends in a donut shop or team up a weak performer with other weak performers)

In studies by University of Washington psychologist G. Alan Marlatt, PhD, it is noted that another key to changing behaviour is not to beat ourselves up for a lapse, but rather to acknowledge that changing ingrained habits is not easy and will take time; a lapse is likely, but a lapse does not mean failure.  A study of people who resolve to quit smoking indicates that people who avoid turning moments of weakness into full relapses are more likely to avoid taking up the habit again through the two-year mark.  So we don’t punish people for trying.  Instead, we encourage them to keep trying.

So, armed with this evidence-based knowledge that resolutions can be helpful, what are you doing to be ready for success?

In terms of legal protections for Lesbian, Gay, Bisexual and Transgendered people (LGBT), Canada has a lot to be proud of.   LGBT people are protected from discrimination and harassment under human rights law and under the Charter.  Canada is one of only a handful of countries where same sex couples can legally marry and enjoy the full benefits of that institution.

Legal protection for LGBT people is one thing, but it is quite another for members of that community to feel like full, open participants in society.  In the employment context, the onus falls on management to ensure that LGBT employees feel not only valued and respected but also that they can be open with their colleagues about their identities and personal lives.  Research suggests that this area still needs attention in Canada.

In 2011, Angus Reid released a poll suggesting that while 93% of those polled believed that their employer’s overall attitude towards LGBT people in the workplace was tolerant and 72%  believe that the attitude towards LGBT people in the workplace has improved over the past 5 years, 34-40% of LGBT people polled experienced discrimination during their professional lives.  Further, while 71% of gay men and 80% of lesbians reported being “out” at work with their peer employees, only 58% of gay men and 59% of lesbians were “out” to their human resources department.  Even fewer respondents were “out” to their management or subordinates.”  Only 23% of bisexual men were “out” to their peer employees.

These statistics indicate that many workplaces may not project the comfortable atmosphere for LGBT people. This needs to improve because employers are not only obliged to provide a psychologically safe working environment, but such an environment will also remove a significant stressor that may well distract employees from having the strong communications line needed for successful organizations.

Discriminatory behavior can be as explicit as direct and blatant homophobia or as subtle as quiet disapproval informed by particular moral codes.  Jokes and comments about LGBT people can obviously create a hostile work atmosphere for LGBT employees.  But an LGBT employee can be made uncomfortable by knowing that their immediate manager personally disapproves of homosexuality on a moral basis.  It would obviously make an LGBT employee wary to know that their immediate supervisor is an active participant in groups or organizations that expresses such sentiments.  In such circumstances, the LGBT employee would have to wonder about chances for promotion within the company.

An LGBT employee whose manager has expressed disapproval over “the gay lifestyle” does not feel valued. This is a challenging scenario for the employer.  An employer does not have the power to change the moral judgments of its employees.  Furthermore, it would not be appropriate for an employer to replace discrimination against LGBT people with discrimination against people of particular faiths or sects which hold a negative view of homosexuality.  (Not  all religions condemn homosexuality).  In such situations, it will be imperative for the employer to communicate and enforce a policy that one’s sexual orientation has nothing to do with job performance, and that every employee is to be valued and appreciated for what they contribute. Neither sexual orientation nor religious conviction can be allowed to be the basis for performance management or career decisions.

Being “out” at work does not mean that intimate details of your life are suddenly made public; it simply chips away at the presumption that everyone is heterosexual.  This presumption is the elephant in the room for creating an atmosphere where LGBT people can be open about who they are.

Consider a conversation between co-workers where one mentions that he spent the weekend at his mother-in-law’s place.  In the absence of an indication that the co-worker is gay, there is a typical presumption that the co-worker’s spouse is a woman, and follow-up questions may be along the lines of “What does your wife do?”  While the questioner may be accepting of LGBT people,  the presumption that the co-worker is married to a woman has created in the mind of the LGBT colleague a dilemma as to whether to counter the presumption.  The presumption of heterosexuality implies a normative position: heterosexuality is “normal”, homosexuality is “abnormal”.

In 2009, the Catalyst Group released a report, Building LGBT-Inclusive Workplaces: Engaging Organizations and Individuals in Change which identified three barriers to a less-inclusive workplace:

1. Lack of knowledge and awareness;
2. Discriminatory behaviours; and
3. Exclusion from important connections.

According to the Catalyst Group, the first barrier manifests itself as a reliance upon stereotype and misconceptions, particularly in how a successful manager or leader should be; the stereotypes of LGBT people (which is frequently promoted by the media) does not fit the mould. The general response to discovering that someone who does not conform to this image is in fact LGBT is surprise.  The LGBT community is as diverse and varied as the heterosexual community.   Stereotypes are not only inaccurate, but potentially damaging.

The good news is that these stereotypes can be effectively countered in the workplace by raising diversity awareness.  Diversity awareness does not need to be a formalized process; often it can come by day-to-day interaction with LBGT colleagues, and leaders promoting an inclusive vocabulary,  and social and management interactions that avoid the presumptions of sexual orientation.

Diversity training can clearly assist with quashing discriminatory behavior in the workplace.  Further, procedures should be established so that discriminatory behavior can be reported.  More importantly, it should be clear that action will be taken against anyone found to be participating in discriminatory behavior.

Finally, LGBT employees can feel excluded from networking and other business functions.  There is also a general lack of LGBT role models in the Canadian workplace.  The lack of such role models reinforces the sense that openly LGBT people simply don’t make it into those positions, which can create more of an imperative to remain closeted, particularly if one wants to advance in the company.

There is also a concern that a company’s clients may not react favourably with LGBT employees.  Similarly, an LGBT employee may be reluctant to accept a promotion that involves moving to a jurisdiction with fewer legal protections for LGBT people or same-sex couples.  If a promotion requires a gay employee to relocate to a state in the US that does not require employers to provide equal benefits to same-sex couples, then the employee may be hesitant to relocate.  The presumption of heterosexuality informs this policy because it does not acknowledge that there is a barrier to relocating.

An employer can effectively counter this by developing policies that eliminate barriers to advancement for LGBT employees.  For example, an international company can decide to partner with a benefits company that provides coverage for same-sex spouses, regardless of the jurisdiction in which they live.  Many Fortune 500 companies in the US offer comprehensive benefits to same-sex couples.  This practice removes some of the stress associated with relocating to one of the 18 states in the US that have constitutionally banned same-sex marriage and same-sex partnerships in that at least the couple’s benefits will continue.

Organizations should also make a point of communicating their inclusiveness policies externally as well as internally.  This helps clients understand that they may be assisted by employees who are not heterosexual. Organizations may also signal its diversity policy through sponsorship or support annual pride celebrations or other LGBT events in the local community.

It is the personal choice of every LGBT employee to decide how “out” he or she will be at work.  Employers cannot force its employees to come out, but employers need to create an inclusive and accepting work environment by removing the  presumption that its workforce is uniformly heterosexual. The legal victories provide the framework for inclusiveness, but through policies, training and role modeling, employers must make inclusiveness a reality in the workplace. All employees need to be and feel to be valued.

contributed by Matt Walters, articling clerk at MacLeod Robinson MacLean

British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52

A worker, injured while on the job, sought compensation from the Workers’ Compensation Board (WCB) for chronic pain.  WCB had a policy of fixing chronic pain awards at 2.5% of total disability.  The worker appealed this award to the Workers’ Compensation Review Division, arguing that the fixed award was patently unreasonable, unconstitutional and discriminatory on the grounds of disability pursuant to s.8 of the BC Human Rights Code.  The Review Board determined that it had the jurisdiction to hear and decide the human rights complaint and found the fixed award did not violate s.8.  Instead of applying for judicial review of this decision, the worker launched a new complaint to the BC Human Rights Tribunal, which essentially recycled the same arguments made to the Workers’ Compensation Board.  The Human Rights Tribunal concluded that the substance of the complaint was not dealt with appropriately by the Review Division and overturned the decision.

The Supreme Court of Canada found that the complainant was attempting to re-litigate the matter in a different forum, when the proper remedy was to challenge the Review Division’s decision through judicial review.

This decision confirms that an employee must choose one arena for arguing a claim – an employee gets one kick at the can.  An employee cannot re-argue a matter that failed in another administrative hearing.  Practically speaking, this means that employers can take some assurance that a decision of a particular administrative body is final and cannot be subsequently disallowed by a contrary decision by a different tribunal.

Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53

This decision involved the Human Rights complaint of a former employee of the Canadian Forces.  She successfully alleged that she had experienced discrimination on the grounds of sex and was awarded $4,000 in damages.  However, the Canadian Human Rights Commission held that it had the authority to award costs in addition to the damages and awarded an additional $47,000.  The Supreme Court held that the Commission had no authority to make a costs award and overturned it.

The Canadian Human Rights Commission is unique in Canada in that it does not have the power to award costs.  However,  all provincial human rights legislation provides the provincial Human Rights tribunals with the power to award costs.   Therefore, employers are reminded to take note that in addition to damages, a human rights claimant may also seek costs, which are often significantly larger than the award itself.

Nor-man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59
An arbitrator ruled that the Employer’s practice of excluding casual service when calculating vacation benefits breached the terms of the collective agreement, but that the Union was barred from grieving that exclusion due to its long standing acquiescence to the practice.  The arbitrator’s decision was upheld by the Manitoba Court of Queen’s Bench, but overturned by the Manitoba Court of Appeal.

The Supreme Court of Canada restored the arbitrator’s finding, finding that if the Union is aware that the employer is applying a provision incorrectly, but says nothing, the Union cannot later insist on its rights under the language.  The Supreme Court also noted that arbitrators have the authority to determine whether a party is estopped (prevented) from asserting a right under a collective agreement because of a long-standing practice.

This decision is positive for Employers as it clearly establishes that a Union cannot insist on the strict enforcement of its rights if it has not informed the Employer that its rights have been violated in the first place.  If the Union has a problem with a policy or practice of the Employer, the onus is on the Union to express its dissatisfaction by launching a timely grievance.  In the absence of such a grievance, the Employer is perfectly justified in assuming the Union has no issue with its policy or practice and should feel safe to continue the practice without fear that the Union might attempt to assert its rights without warning.  The Employer had the right to rely on the practice until the collective agreement expired.

contributed by Matt Walters, articling clerk at MacLeod Robinson MacLean

Maritime Electric Company Limited is
seeking candidates for the position of:

Accounting Technician*

Since 1918, Maritime Electric has delivered safe, reliable electricity to customers throughout Prince Edward Island.  We employ 180 Islanders in the province.  Maritime Electric is an equal opportunity employer.

Maritime Electric Company, Limited, a wholly owned subsidiary of Fortis Inc., owns and operates a fully integrated system providing for the generation, transmission and distribution of electricity to customers throughout Prince Edward Island.  Maritime Electric has an exciting full-time opportunity for a dedicated self-motivated individual.

Reporting to the Finance Management Team, the successful candidate will be responsible for providing accounting support to the Finance functions of the Company, which include but are not limited to: Payroll, Accounts Payable, Accounts receivable (energy and non-energy billings), Payment-Processing and Purchasing/Materials Requisitions.

The successful candidate will have a diploma or degree from a recognized post secondary educational institution or equivalent experience.  The candidate will have two years experience in finance and business administration and be proficient in software applications including MS Excel/Word, Accounting and Ceredian or ADP payroll software.  The ideal candidate will be detail oriented and committed to the accuracy of a completed task with strong problem solving , organization and interpersonal skills.  Enrollment in a CGA, CMA or CA program would be considered an asset.

Classification (*Administrative Support Clerk) and compensation as per IBEW Collective Agreement.  If you are interested in being a key part of the Maritime Electric team, please forward your resume by January 26, 2012, 12:00 noon to:

HRA
1 Harbourside, Brecken Building
Charlottetown, PE C1A 8R4

Fax: (902) 626-2532

We thank you for your interest, but only those candidates selected for an interview will be contacted.  No telephone calls please.

As the end of the calendar rushes towards us, we can observe the power of the anticipation of rewards.  Regardless of the season’s religious or secular appeal, a vast segment of society mobilizes to shop, decorate, bake, socialize, entertain and be entertained.  People push themselves beyond their normal activity levels to do extra errands, extra events, and make special efforts to be more generous to our colleagues, family, friends, and even strangers.  For many, the rewards for these activities are intrinsic: enjoyment of friendships, of sharing, and for some, the reward is a quiet pause during the holidays before we step again into the hurley burley of another year. 

The lessons?  Well, I think there are a few:

1. While people may share in anticipating the reward, its value and meaning may differ with the individual;
2. The motivation for extra effort lies not in the dollar value of the reward, but in its meaning;
3. The deeper the meaning to individuals, the greater the anticipation of its culmination; and
4. Shared anticipation multiplies the value placed on the reward.

Workplace motivation isn’t about giving people meaning in their lives.  That is up to each individual to bring.  But workplace motivation is about creating an environment that enables people to bring meaning to their work, and allows people to celebrate the anticipation of fulfilling that meaning.