First Nations Human Resources Conference & AFOA BC Annual General Meeting September 14-16, 2016 River Rock Resort, Richmond Wilson v. Atomic Energy - Seismic Shift Affecting First Nations Employment Co-Presenters: Jennifer Wiegele, Partner, Labour and Employment, Miller Titerle and Company Cori Maedel, CEO, Jouta Performance Group
Agenda Legal Impact • Jennifer Wiegele, Partner, Labour and Employment, Miller Titerle and Company Human Resources Impact • Cori Maedel, CEO, Jouta Performance Group
Legal Impact Jennifer Wiegele, Partner, Labour and Employment, Miller Titerle and Company
Legal Impact Landmark Supreme Court of Canada decision has confirmed that federally regulated, non-union employees cannot be terminated without just cause Adequate severance pay will not be sufficient to avoid unjust dismissal complaint The result is union-like protection for federally regulated employees who are not in a union
Legal Impact Some basic principles: Non-union employees can be terminated without • cause at any time and for any reason as long as the employer provides reasonable notice of termination or pay in lieu of notice Union employees can only be terminated for just • cause
Legal Impact Canada Labour Code – Unjust Dismissal Provisions • All non-managers with over 12 months of continuous employment can make an unjust dismissal complaint under the Code • Adjudicators appointed under Code have broad remedial powers
Legal Impact Adjudicators appointed under Code can order: • reinstatement to employment; • dismissed employee to be paid an amount equal to pay they would have received but for the dismissal; and/or • Any other equitable remedy to offset consequences of dismissal
Legal Impact Wilson v. Atomic Energy of Canada Ltd. Wilson dismissed after 4.5 years • No just cause and reasons for termination did not fall into • exceptions to unjust dismissal provisions – i.e ., “lack of work” or “discontinuance of a function” Employer offered 6 months’ pay in lieu of notice •
Legal Impact SCC found that federally regulated employers’ right to dismiss employees is limited by the Code Dismissal not “unjust” only if : • For just cause; or o Due to “lack of work” or “discontinuance of a o function”
Legal Impact Applies to: non-managerial employees • employees with 12 months of continuous service •
Legal Impact Does not apply to: employees dismissed for “lack of work” or • “discontinuance of a function”; managers; and • non-managers with less than 12 months of • continuous employment
Legal Impact Employers can no longer rely on providing reasonable notice periods or severance packages as a way to dismiss underperforming or weak employees Decision significantly affects ability of federally regulated employers to determine size and composition of their workforce
Legal Impact As a result, employees may use threat of reinstatement to leverage more generous severance package
Legal Impact Specific issues for First Nations: tendency of Adjudicators to deem managerial • employees “non - managers” and apply Code provisions to them When Chief and Council limit discretion of managers or • otherwise get involved in decision making, likelihood of manager being “employee” is higher
Legal Impact Specific issues for First Nations: Presumptive remedy of reinstatement used often in • cases involving remote communities since employment is more difficult to replace
Legal Impact How to minimize impact? Employers have a full 12 months in which to assess an • employee’s suitability for ongoing employment – use it wisely! Performance manage regularly • Document misconduct diligently and thoroughly •
Human Resources Impact Cori Maedel, CEO, Jouta Performance Group
Human Resources Impact Solid HR Practices are a need to have, Not a nice to have!
What do I do now?
Termination Seek Advice, the landscape is to uncertain • Prepare for seeking advice • Do you have an employment agreement? • Any terminations provisions? • Performance Improvement plans? • Has the employee been given an • opportunity to improve? Have all options been exhausted? •
Prevention Body
What is HR? HR, Jouta Style! Culture +Protection + Productivity _____________ = Organizational Performance
Culture Workplace culture reflects everything from recruitment to termination, and everything in between -- including vision, mission, purpose, values, roles and responsibilities, work environment and symbolism, all of which must align to create an ideal structure. Every organization’s culture is different – the key is to define yours and align everything to it
Protection Just as you insure your business against external threats, an investment in HR can help protect you (and your employees) against threats that are within your control. These include legislative threats related to the employment of people.
Productivity Performance is the goal! The role of HR is to put systems in place that increase productivity to enhance overall performance. This is only possible when the right structure is in place and everything done within the organization aligns to it .
Culture – Key Result Area’s • Organizational Intention • Vision, Mission, Goals, Values, Symbolism • Culture • Community, Organizational • Communication • Internal, External, Employee Relations • Organizational Structure • Roles and Responsibilities, Workforce Planning • Leadership vs Management • Change Management Define it, then align it!
Culture – The Bottom Line • Define it, then align it – Business Culture • Respect community culture and find ways to include it in the day- day practices • Teach (more than just expose) non-indigenous employees about community culture • Establish clear lines of communication between all stakeholders • Have clearly identified roles and responsibilities. Set employees up for success, let them do their jobs, and hold them accountable, so staff can support the community properly • Define and set expectations for leadership and management • Ensure the line between C&C and Administration is clear
Protection – Key Result Area’s • Legislative Knowledge • The Legislation, Employment Agreements • Metrics • HR Performance Metrics • Total Compensation • Base Pay, Variable Compensation, Health and Dental Benefits, Income Protection Benefits, Retirement Benefits, General Perks • HR Record Keeping • Policy and Procedure (Handbook) • Absence Management • Health and Safety
Protection – The Bottom Line • Have a solid employment agreement • Handle the administration of record keeping etc. • Have culturally aligned and legislatively compliant Health and Safety plans in place, Absence management etc. • Have a solid employee policy that's used as a tool and not a weapon • Make sure it’s culturally aligned • Covers off legislative requirements • Drives behaviour in the way you want it to • Compensation 80/20 rule • Develop a community code of conduct so that interactions between community and administration are respectful and productive
Productivity – Key Result Area’s • Recruitment and Selection • Onboarding and Orientation • Performance • Development and Management • Creating a Learning Work Environment • Training and Development = Coach Approach
Productivity – The Bottom Line • Recruitment and Selection Manage nepotism – ensure that the person hired is set up for success by only • putting them in roles that they have the skills, knowledge and ability for Have a solid and transparent recruitment process in place. Ensure that the process • is accessible for community members with barriers to employment. Provide coaching for development that can follow if not a successful candidate Only hire people who have the knowledge, skills and ability to do the job • • Onboarding and Orientation Have a systematic plan in place that is used consistently • • Creating a Learning Work Environment Give employees tools and training to successfully manage conflict • Provide training to supervisors and managers who may be inexperienced people • managers Succession planning, mentoring and coaching, build capacity within the • organization and work to develop and elevate community member employees into the Management team
Summary A robust HR infrastructure is essential to minimizing the potential legal impacts of the CLC on First Nation organizations Culture cultural & organizational understanding & alignment Protection ensuring all the right practices/safeguards are in place Productivity an engaged, fully-aligned workforce going in the same direction at the same time
Presented By: Cori Maedel The Jouta Performance Group Inc. 604.488.8885 – www.jouta.com and Jennifer Wiegele Miller Titerle and Company 778.945.3069 – www.millertiterle.com
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