Category Archives: Globe & Mail Articles

If I’m falsely accused of sexual harassment at work, do I have any legal recourse?

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NIne To Five | Special to The Globe and Mail | January 7, 2018

THE QUESTION

As a male manager hiring female college students for restaurant patio work in the summer, I am concerned about the recent wave of sexual-harassment allegations. Our interviews are conducted one-on-one in a closed office. If even one candidate accuses me of extending so-called unwanted attention or of making a sexual advance, could I be fired? What can men do to protect themselves in interview situations? Is there a legal recourse when someone makes a false allegation?

THE FIRST ANSWER

George Cottrelle. Partner, Keel Cottrelle LLP, Toronto

There has been a seismic shift in society’s intolerance of workplace sexual harassment, which has resulted in significant changes in employers’ responses to allegations of workplace sexual harassment.

Workplace sexual harassment is prohibited under applicable Canadian human rights codes and workplace safety legislation. Persons applying and interviewing for jobs are entitled to protection from workplace sexual harassment under the applicable human rights codes.

Workplace sexual harassment is serious employee misconduct, in violation of an employee’s duties under their employment relationship, and applicable workplace policies. Depending upon the nature of the misconduct in question, a single incident of workplace sexual harassment can constitute grounds for immediate dismissal.

Employers need to follow their workplace harassment policies, but, in any event, should investigate allegations of workplace sexual harassment. If your employer terminates your employment based on allegations of workplace sexual harassment that are not investigated and substantiated, or that do not constitute cause at law, then you may have recourse against your employer for damages for wrongful dismissal.

The best protection for employees to avoid allegations of workplace sexual harassment is to be vigilant and ensure that their workplace conduct and practices are compliant with their legal duties and workplace policies. The closed-door, one-on-one interviews by you with college students for summer patio positions are potentially problematic, and your practice needs to change. Ideally, you should include another co-worker in the interviews, but at a minimum, the interviews should take place in a more public setting.

THE SECOND ANSWER

Eleanor James, Senior communications consultant, The James Thinkstitute, Toronto

Be responsible for your own behaviour. There’s a line there, don’t cross it. You’re hiring and interviewing young women for jobs. It’ll be the job they want, not advances from a man they don’t know. I was in this spot myself, age 18. After a 10-minute private interview with the restaurant manager, he asked me to stand and turn around. I said no and left. I told my father who said, “Good for you!” I thank him for that respect, a lot, still.

I recommend talking with your colleagues about interview procedures so everyone is on the same professional page. This question is sadly common. We know from all sorts of stories in the news that making an accusation of sexual misconduct is no walk in the park for the accuser either. Build yourself a reputation as a gentleman. Speak without sexual innuendo, no leering, or touching, know where your eyes are, and stick to business. Don’t shortchange yourself with shabby behaviour.

This isn’t the job I was hired for. What is my exit strategy?

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NINE TO FIVE: SPECIAL TO THE GLOBE AND MAIL, PUBLISHED JULY 8, 2017

THE QUESTION

I was hired for a senior-level strategy-based role that seemed like a great fit on paper. Now that I am here, the gap between the role as outlined and the day-to-day reality is night and day. I have been forthright with management that I have very little to do and that the role I was hired for has not really materialized. They are not concerned and keep reassuring me that things will get busier, but I don’t believe this will happen.

I have just passed my probation period and am considering approaching my VP to figure out an exit plan. I’m concerned that I’ve wasted these last months in a role that will now stand out on my resumé due to the short tenure and am wondering if I can ask for a letter or recommendation that basically says that they misrepresented the job description (a director-level role on paper that is co-ordinator/assistant level in reality). Is there any way I can ask for an severance package based on this misrepresentation? Can I leave it off my resumé altogether, and if not, how do I explain this short a tenure to potential employers so it doesn’t look like I was fired?

THE FIRST ANSWER

Kyle Couchm, President and CEO, Spectrum Organizational Development Inc.

Resumés are a funny thing. They are a non-legally binding document and most organizations are more fearful of additions versus omissions. Resumés are intended to be a sales pitch about your qualifications and competence with respect to the prospective job opportunity. Therefore, I fully recommend adding your most recent role at this organization.

With that said, I would use a more progressive resumé approach of listing it as a project accomplishment, as opposed to a career history. While your tenure is brief, you can point to the fact that a) it was a director-level position and b) you were hyper-productive. I suggest you request a letter of recommendation in the event that this most recent post was questioned, but don’t add it to your initial package to the “next” employer.

I am a big fan of “fit” between employee and employer. Your drive to move on is the right one. Use this as a learning opportunity, specifically around asking more pointed questions and being more cautious and forthright in your next interview.

THE SECOND ANSWER

Eleanor James, Consultant, coach and speaker, The James Thinkstitute

This is an oddball situation and from your description, it does seem more disorganized than malicious. Nonetheless, it’s a bridge not to be burned. Do approach your VP to work out an exit plan giving both of you time to find replacements. Though I see your point about misrepresentation, I’m not sure it would hold up to severance, a lawyer can advise you.

Avoid throwing around blame, use all the finesse you’ve got. Be clear with them that the company has a lot to its credit (you applied for the job) but it’s not a fit for you (a.k.a. you passed probation but the company didn’t). With regard to your job history/resumé, ask for a letter from the company (perhaps offer a draft) explaining that the role for which you were hired has not materialized due to uncontrollable circumstances. That way, everybody saves face and you won’t have anything to hide.

My job is moving to Europe but I won’t. Do I get severance?

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Published Monday, Jan. 23, 2017, Nine to Five, Globe & Mail

THE QUESTION

I work for a multinational company headquartered in Europe. My position is being transferred to head office, but I am not interested in relocating to Europe. If I don’t accept the relocation or find another position locally within the company, my head count will be removed by a stipulated date. Is my employer legally obligated to pay me severance?

THE FIRST ANSWER

Daniel Lublin, Whitten & Lublin Employment Lawyers, Toronto

You can’t be forced to relocate to Europe (or anywhere else not reasonably close to your current job) unless you previously agreed in writing that your employer has the right to relocate you. Most employment agreements do not contain these types of clauses and, without them, a relocation cannot be imposed. Therefore, when your job is finally eliminated, you are indeed entitled to a severance package. The next question becomes what form of severance and how much you should receive. Your employer is entitled to provide you with “working notice” of the future elimination of your position and this would be one instance where that could make a lot of sense. If your employer is aware that you do not want to move, it would be smart to confirm your future termination date in writing, since the time period between the date that this is confirmed and your last day of employment is considered a form of working severance that could reduce or in some cases eliminate the need to pay you anything further after you leave. As in all cases, your overall severance is assessed based on your age, tenure and position.

THE SECOND ANSWER

Eleanor James, Consultant, The James Thinkstitute, Toronto

It’s common for multinationals to transfer employees and it’s not always made clear from the start.

During the interview phase, potential employees are well-served by asking about the corporate culture and the possibility of transfer. Find out how it works and think carefully about it before taking the job.

Saying no can be a career-limiting move and, if a job is dependent on a transfer, it can be hard on your family and complicated by assets such as a house. Multinationals that want to have company-wide best practices will sometimes send employees for six months to teach those practices in other countries. It’s effective for the company and less disruptive for employees.

But in this case you know that your job is going overseas and you don’t want to follow it. If you want to stay with the company and you know they see you as a valuable asset to be retained, recruit the help of your boss and Human Resources and spend the time finding a new fit within the company – a job of the same calibre as your current job.

If you’re not so keen to stay, it’s time to start looking for something new. If offered “working notice,” use the situation to help you in your search outside the company.

I’m stuck between fighting bosses. What can I do?

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Special to The Globe and Mail, Published Sunday, Aug. 28, 2016

THE QUESTION

I am caught in the middle of a dogfight between two bosses. What should I do?

THE FIRST ANSWER

Eleanor James, Personal communications consultant, James Thinkstitute, Toronto

I was once in this very position. There were 35 employees in the company and two active partners. They had separate responsibilities and equal power and it worked well for a long time. But something happened and suddenly those two men became bears with thorns in their paws, fighting all over the building.

The good thing was that we all knew what we were doing so we just carried on, avoiding consultation with them unless it was absolutely necessary. One smart thing those men did was hire well, and we all had the freedom to make decisions. That kept things going for a long time but eventually the company was shut down.

That may not work in your situation so sit down with your bosses together if you can, or separately if you must. Either way you’ll need some spine. The language you use is very important. “There is friction between you and I’m really sorry to see it. I don’t mean to interfere with that, but I do want to let you know that I’m now having trouble doing my job effectively. There are conflicting instructions [give concrete examples] and I need some clarification. We can talk about it now or set up a meeting later if you like.” See what comes of that. If nothing, go to HR and spill the beans.

THE SECOND ANSWER

Natalie MacDonald, Partner, Rudner MacDonald LLP, Toronto

Have you ever watched two dogs pulling at a stick? One pulls one way, and the other pulls the opposite way. Neither wants to give in, and neither is prepared to let go. This happens in the workplace as well, and can leave you stuck in the middle. How can you win? The only way is to ensure that you are taken out of the equation – but this is easier said than done.

In this type of scenario you have the beginning of a poisoned workplace. The first thing you should do is to ensure that you address the situation with both bosses at the same time. Before sitting down with them, it is imperative that you have concrete examples of the behaviour, and so you should keep a journal of the times and behaviour that has occurred and put you in the middle. Voicing your concerns, and providing specific instances of when and how the actions have affected you, is imperative toward working to a solution.

If there is still no change, ensure that you bring those examples, and the fact that you have attempted to work out a solution with your bosses, to HR. After your meeting with HR, capture the essence of the meeting in an e-mail, which therefore documents exactly what you attempted to do to resolve the situation.

But if nothing changes, even after discussing the matter with HR, it may be time to seek legal advice from an employment lawyer – one who can protect your rights and entitlements at both ends of the stick.

Are managers entitled to overtime pay for on-call duties?

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NINE TO FIVE: SPECIAL TO THE GLOBE AND MAIL, PUBLISHED FEBRUARY 28, 2016

THE QUESTION

As a salaried municipal employee with a manager title, I had to participate in on-call coverage for emergency management. This required me to be at my workplace within one hour of notification, for the duration of my on-call period, day and night.

The on-call period was typically two out of every four weeks. During these periods, I was extremely restricted in my personal activities, including not being able to leave be out of town. I received no compensation for the time I was required to be on call. I understood that disciplinary action could follow for failure to consistently respond within expectations. In contrast, on-call technical staff were paid for on-call time, with the result that my staff routinely made more income than I did.

The on-call requirement was not in my job description nor in my employment contract.

Did Ontario labour law allow my past employer to schedule managers for on-call work without compensation?

THE FIRST ANSWER

George Cottrelle, Partner at Keel Cottrelle LLP, Toronto

We assume that, as a manager, you were not in a trade union. Your rights to overtime pay, if any, were governed by the Ontario Employment Standards Act, which sets out minimum statutory entitlements for employees, as well as any provisions in your employment contract. We also assume that technical staff were governed by a collective agreement, which contained provisions for on-call pay.

Both hourly and salaried employees are entitled to overtime pay (generally, after 44 hours a week) under the act, unless specifically exempt. Persons whose work is supervisory or managerial are specifically excluded from the act’s overtime provisions. Accordingly, as a manager, you were not entitled to overtime pay.

The act has specific provisions when on-call hours are deemed to be work. performed by an employee. On-call time where the employee is not performing work, but is required to remain at the place of employment, is deemed to be work performed. Where the employee is not at the place of employment, and is simply ready for a call to work, on-call time is not deemed to be work. performed for an employer.

In addition to the act, your employment contract and any policies or practices of your employer applicable to managers would also determine whether you were entitled to additional compensation. Your employer’s position was that on-call coverage was a requirement of your job, without compensation, and we assume there was no policy or practice to the contrary.

We note that on-call coverage was introduced after you began your employment, and as such, potentially constituted a unilateral change to a term of your employment contract. A unilateral change by an employer, without consideration, to a fundamental term of the employment relationship does not have to be accepted by an employee, and may constitute constructive dismissal.

THE SECOND ANSWER

Eleanor James, Communications consultant, James Thinkstitute, Toronto

Two weeks is a long time for such a short leash, especially without compensation. The Employment Standards Act is clear on what is paid work for managers in your situation. Some employers make fundamental contractual changes as a means of constructive dismissal, a way of bullying an employee to quit instead of letting them go. Is it possible that’s what was happening here?

The working relationship sounds poor, too, and what a waste it is when that happens. It’s not uncommon with the mix of unionized and non-unionized workers, and it requires great management to balance both sides. Unfortunately, that’s not always on hand. Often it’s better and easier when people just put their cards on the table rather than trying to weasel out a change and betting the employee won’t fight it.

Employers would benefit from taking into account the consequences of their actions on fairness, morale, lawsuits and the organization’s reputation. A little finesse goes a long way.

How can I talk to HR when the director is the owner’s wife?

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NINE TO FIVE: THE GLOBE AND MAIL, PUBLISHED NOVEMBER 22, 2015

THE QUESTION

I have a problem with the owner of the company I work for that should really be resolved by Human Resources. But how do you handle that situation when the director of HR is the owner’s wife?

THE FIRST ANSWER

Eleanor James, Communications consultant, the James Institute, Toronto

The conflict of interest in the company’s managerial structure has you between a rock and a hard place. You want to resolve the problem rather than take a more rash or destructive path, and that’s good. Do some homework and contact the Human Resources Professionals Association (HRPA) for assistance, which will be directed by the specific nature and scope of the problem. They might also direct you to an independent HR professional who could be a third party.

When you have the information, arrange to meet with your HR director, which is the proper channel and a no-fault move for you. Prepare yourself well for the meeting; think carefully about what you want to say and how you’re going to say it, including the problem, how it’s affecting your work and any suggestions you have. Choose your words carefully, use non-accusatory language and take out any emotional tone. Write it down and rehearse it out loud, a few times. All this preparation will calm you and greatly reduce your chances of inflaming the issue. You never know, the HR director might see your point or even agree with you. If not, there are lots of resources available based on what you want to do.

THE SECOND ANSWER

Eileen Dooley, Vice-president, Gilker McRae, Calgary

Having a problem with any owner of a business presents limitations on what you can do. Having family members in key leadership roles poses additional issues.

Perhaps, even though the two work together, they may have a separation with respect to work. The director of Human Resources may very well be approachable in discussing difficult matters regardless of her relationship with the owner. Some companies even have non-retaliation policies, which are supposed to protect employees who bring up concerns with the company.

If the concern has to do with a matter where Human Resources would typically be brought into the fold, such as harassment, discrimination, or any violation of human rights or workplace law, it is the right thing to do to bring it to the attention of someone who can invoke change. You would naturally start internally, but you may also want to consider bringing these types of matters to the attention of your local employment standards office.

If neither of these two options is viable, you may want to ask yourself if it makes sense to move past the issue, or walk away entirely.

The Business of Happiness – Where’s the Fun?

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Special to The Toronto Star
Published 

“In an era when more is more, there’s an extravaganza of ways to make yourself happy. Except it’s not working, this “cult of optimism.”

Happiness is big business these days.

In an era when more is more, there’s an extravaganza of ways to make yourself happy — affirmations, vision boards, the power of positive thinking, to name a few.

And who doesn’t want to be happy?

Except it’s not working, this “cult of optimism.” Even the well-intentioned self-help movement seems to glisten with snake oil.

Happiness, it seems, isn’t something you can run to ground and then shout “gotcha.”

And there’s not much cultural support for happiness, that very thing we’re after.

The two-headed beast called Marketing and Advertising is never quiet. The goalposts of aspiration keep moving. Beauty standards require blond hair with extensions, too-long acrylic nails and massive plastic knockers, though how those fit into a size zero is anybody’s guess. It’s not called “keeping up with the Joneses” anymore, but that’s what it is — conformity by a longer name.

Having the latest mobile device or computery thing is a pricey demand and the only way to be cool: be with us or get out of the way. And who can be happy dealing with giant corporations when you’ve crashed, or want to make a change? Really, it’s my fault? Only a stiff drink or a hot bath makes that better. We’re even surrounded by disdain in the media — all those television shows with people behaving so horribly it makes your jaw drop.

The truth is, not much looks like fun, and shopping and pretending just aren’t buff enough for the heavy lifting happiness takes.

But a new approach to happiness is on the horizon. Take Oliver Burkeman. Even the title of his book — The Antidote: Happiness for People Who Can’t Stand Positive Thinking — is a breath of fresh air.

After researching the work of psychologists, philosophers and some self-help gurus, he concludes that “it is our constant effort to eliminate the negative — insecurity, uncertainty, failure or sadness — that is what causes us to feel so insecure, anxious, uncertain or unhappy.”

Instead of finding this depressing, “it pointed to an alternative approach, a ‘negative path’ to happiness that entailed taking a radically different stance toward those things that most of us spend our lives trying to avoid. It involved learning to enjoy uncertainty, embracing insecurity, stop trying to think positively … be willing to experience more negative emotions — or, at the very least, to learn to stop running quite so hard from them.”

Not so black and white then.

This Is How: Help for the Self by Augusten Burroughs echoes Burkeman, though it’s more of a motorcycle ride. “Sometimes you just feel like s—. Telling yourself you feel terrific and wearing a brave smile and refusing to give into ‘negative thinking’ is not only inaccurate — dishonest — but it can make you feel worse.”

And in Bright-Sided: How the Relentless Promotion of Positive Thinking Has Undermined America, Barbara Ehrenreich includes her own experience with cancer. “Positive thinking seems to be mandatory in the breast cancer world, to the point where unhappiness requires a kind of apology … ”

What a relief! This rediscovered wisdom is that life has to do with balance. Pretending that bad doesn’t exist is wasted effort. We’ve all been there and will be again, wiggling through life from happy, to neutral, to sad. Rinse, repeat. Life’s like that and the trick is in how you manage it, how expert you get with the wiggle.

There’s nothing stopping you from being positive, or you can be a curmudgeon if the situation warrants. Instead of trying to jolly it away, when you or someone else says, “I’m in a bad mood,” you could lighten up. You can do things that make you feel good. You can do things that make others feel good. Have some fun.

There, that’s better.

See the article here: The Business of Happiness