In my travels recently, I have come across a couple of recent legal decisions that affect considerations of employment law in Ontario and more broadly, in Canada.

The first is the concept of terminating for “near cause”. Essentially, this is a situation where an employer many not choose to or may not be able to justify a clear “with cause” dismissal or termination under the law, but feels that there are some circumstances which may exist to justify the dismissal. It is usually the case in these circumstances that an employer will want to reduce notice periods or pay in lieu of notice. Recent court decisions rejecting the concept of “near cause” include Ditchburn vs Landis & Gyr Powers Ltd. and the Supreme Court of Canada decision involving Dowling vs Halifax as well as more recently (Ontario Superior Court) Laszczewski vs Aluminart Products Ltd.. Ultimately, the courts have decided that an employers use of “near cause” may result in trumped up accusations and stretching of the truth to support unreasonably low notice entitlements. So, for the time being, employers are best to continue documenting incidents and using progressive discipline models which may lead up to a just cause dismissal. In all other cases, it appears the courts have decided that notice periods remain as dictated by the appropriate contractual agreements, Employment Standards legislation, common law, or a combination of the appropriate sources.

The second look at recent legal decisions affecting how HR professionals approach employment law (specific to dismissals) has evolved around the concept of reasonable notice given to employees when changing the terms of an employment contract. Specific and relevant to this topic is an April 29, 2008 Ontario Court of Appeals decision, reversing a prior lower courts decision in the Wronko vs Western Inventory Service Ltd. case. The details of the case are quite lengthy, but ultimately, the new president at an employer tried to change a 2 year notice period in an employment contract to 30 weeks. Critical facts include how the changes were communicated to the employee, but more importantly, the fact that even though the employee rejected the changes, the employer allowed the employment relationship to continue for two years, until it attempted to end the employment as a result of the employees failure to sign the new contract – and indicating that failure to sign the contract would mean that “the company would no longer have a job for the employee. The employee then launch a wrongful dismissal claim – which resulted in an initial decision in favour of the emloyer, but was later overruled in appelate court as a result of review of additional details relating to how and when the employer communicated its messages and conducted itself. The important lesson here is that employment contracts cannot be unilaterally changed, and IF changes are required, it is very important to follow an adequate series of steps to protect the validity and legal defnesability of the changes, including, but not limited to adequate notice and proper communications and actions if an employee does not accept the changes.

If you have read this far, and have been unfamiliar with the above noted cases prior to reading this blog, I would suggest you do some further research and familiarize yourself with the details of the decisions and the cases. It really is not that uncommon for an employer of any size to run into issues related to employee behavious which may result in dismissal, or related to the second point of law discussed, for an employer to want to alter the terms of an employment contract. Of course, the above is by no means legal advice or an extensive look at the case law discussed. It would be in the best interest of any proactive practicing HR professional to become familiar with current case law as it happens. Happy research!

Cartoon sourced from : National Business Employment Weekly, May 26 1991 : Eli Stein

In keeping with the helicopter theme, I was introduced today for the first time to the concept of Helicopter Quality. At first I kind of had an idea what it might mean, but was lost as to an exact definition and expanded practical application of the concept – so, off I went to look it up.

Not a lot out there. I did find enough information to satisfy my intellect, but suffice to say, it was sparse. In a nutshell and from what I can gather, the concept of Helicopter Quality (as a trait or behaviour) originates, at least in the mainstream, in the early 1980′s. One of the first big promoters, or even originators, of the concept seems to be Shell. The intellectual concept of Helicopter Quality formed a component of their broader CEP program, CEP standing for Currently Estimated Potential – a controversial concept itself. Interesting, in doing some further research, it appears that the CEP model is often applied within Civil Services, and specifically to much criticism and opinion, poorly implemented (applied from the Shell model) in the Singapore Civil Service.

The CEP, essentially, is a ranking based on perceived potential as a result in the Singapore case of educational credentials at the start of employment, or in some other cases on the perceived potential of an individual based on a combination of academics, tests, performance and a number of other factors. A person’s CEP ranking, in extreme cases, will then dictate how many promotions a person will get in a set number of years, often right uo to retirement – sometimes regardless of actual performance (unless the CEP is a model that goes beyond the pure academic rankings). Interesting concept, and obvious correlations to concepts in talent management, workforce planning and succession planning – but it’s all in the application and follow through, and from my readings, the CEP programs have received widespread criticisms for their lack of assessing all contributing factors to potential and doing so on an ongoing basis.

The point, however, is that the concept of Helicopter Quality or as it is often applied ideologically as Helicopter Strategy or Helicopter Leadership – provides an intellectual focus on capabilities not unlike that of electronic radar devices. As a desirable quality, organizations look to visionaries and strong leaders to have Helicopter Quality – to be able to rise above the everyday and see the full lay of the land, everything going on around them. Helicopter Quality refers to the person’s ability to identify problems within the larger context and solve them accordingly. Basically, a person with high Helicopter Quality has a broad overview of things, and this is more suited to a higher level position where a broad oversight is required.

Why do I think this is important? Aside from the nomenclature simply grabbing my attention and sparking interest and further research – once I understood the true meaning, I recognized that Helicopter Quality is becoming a lost attribute among many leaders in today’s work culture. It is often difficult to rise above, and without conscious effort to do so, many leaders often get caught down in the weeds focusing on the day to day activities that their managers should be empowered to do. Or, when some leaders do manage to rise above, they often swoop back down regularly to participate in decisions or business matters where they don’t have full insight or awareness – spawning what many refer to as Seagull Management (perhaps more on that later).

It’s not easy being a leader in 2008. However, often the best thing a great leader can do is suround himself or herself with great people. People who are competent, consistently push that leader up, and are empowered by that great leader to run the day to day aspects of the business – while that great leader with Helicopter Quality is able to pull together the big picture of the present, learn from the past, and rally the troops with vision and strategy for the future.

I’ve been doing some reading recently on different generations – and how they are tagged by society, and more specifically the implications on employers and work. There is of course the baby boomers, which are the largest group and span a great number of years. Following that group, the initially dubbed “baby bust” now known as Gen Xer’s spans roughly ’65 to ’80 (the grouping, of course, that I fall in to). Then it gets interesting – we have Millennials, or Gen Y (“echo boomers”) born from 1980 to the late 90′s, and most recently Generation Z (apparently sometimes also called the 9/11 generation).

The one I find most interesting as an HR professional, and specifically when it comes to recruiting and engaging a workforce, is Gen Y – quickly taking on a whole new moniker as the “Helicopter Generation”. Here’s some recent stats from a U.S. poll of Millennials:

Even more interestingly, as a side bar and not necessarily directed towards Gen Y, is another news story I saw published recently. The author surveyed text messagers to find out how distracting the technology is to every day life. Of those surveyed, 1 in 10 admitted to walking into people or things on a daily basis while texting on their mobile devices. Even more admitted to bumping into objects on a slightly less frequent basis. They even conducted a test, much like those one’s you see where they take drivers in cars through pilons to test their maneuvering skills – where texters bumped into pilons on the course while trying to walk and text at the same time. I can’t recall if I saw any of them chewing gum or not at the same time. As I said, a sidebar, but just thought it worth sharing to illustrate a culture that embraces technology, lives in the moment, and is far different from those which came before it.

Here’s where it gets interesting. In the workplace, we typically have the boomers in senior management and leadership positions, Gen Xer’s following not far behind in their footsteps, and more and more Millennials entering the workforce. Expectations from one group to the next vary, and while some organizations are able to embrace the differences and leverage unique aspects of each – many struggle with programs and policies that can cater to all. The result? Often environments that try to satisfy all while catering to none. Organizations that do it well? You need not go much further than some of those players that you often see recognized in publications such as Canada’s Top 50 employers.

So, what’s this about helicopters? The Helicopter Generation – Generation Y, the Millennials. Warning, I’m going to stereotype and conjecture here a little. This was a generation raised with praise, never being allowed to fail, playing sports at school where players were interchanged across teams and no scores were kept. There was no winning or losing – everyone got a trophy just for coming out. As our beloved Y’s went through school, we saw greater involvement from parents stepping up to challenge teachers on failed assignments and meet with admissions departments of colleges and universities when their kids did not get accepted to their top choices. Now, we see these same kids enter the workforce – and these same parents doing everything from attending interviews and orientations, to negotiating salaries (and why not, a bigger salary means maybe little Billy might be more likely to move back out of the basement), to calling in sick on behalf of their kids or challenging a poor performance review with a phone call directly to the line manager.

Enter our role as HR in the 21st century. We can either keep our heads in the sand, or recognize the existing needs of our current generations in the workplace and welcome the new, and what seems like eccentric, needy and demanding helicopter kids. I’ve read articles about companies outright refusing to let parents into its processes to others that embrace the opportunity to extend its culture to the entire family and actually send welcome kits to parents, brothers and sisters – figuring that if the family wants to be involved in a tightening labour market, then the extra publicity and support might not hurt.

When it comes to managing expectations and leveraging talents beyond the stereotypes joked about above, I believe that it is individual recognition and support that is going to bring the greatest success. New generations want to be connected to the companies they work for, value relationships, personal development and new skills. There is a huge opportunity to pair generations and share expertise from Boomers who house a wealth of knowledge and Millennials who are knowledge starved and looking to soak up as much data as quickly as possible – Or, in the immortal words of Johnny 5 – “need input”. Why not put recruiting and mentorship programs in place that bridge these traditional gaps? So, while the rotor wash from the hovering parents may be overwhelming at first and your experienced workforce are looking at you and your and senior management with puzzled faces – if you move beyond the initial lack of understanding of different expectations, needs and just how much closer these new workers continue to be to their parents than we ever were, there are opportunities to be had in recognizing, understanding, leveraging these valuable successors.