Loretta Bouwmeester, Calgary
In this period of continued economic uncertainty,
workers are often asked to do more with less. It is common to hear “we just
need to be more efficient – work smarter, not harder”. That mantra is not
ringing true for many human resources professionals anymore. You are challenged
with increasing disability claims (often originating out of stress leaves) and
guiding frustrated supervisors as they implement performance improvement plans
with employees.
A lack of fitness for duty whether caused
by stress, fatigue, drug or alcohol use or dependency among other disabilities,
has serious occupational health and safety implications. It often also undermines
productivity in a fundamental way, as do employees who simply don’t perform despite
being fit for duty. They negatively affect morale and place unnecessary stress
on other workers. They were the inspiration for the term “presentee-ism”.
Efficiency is equated with productivity. Google
the term productivity and you will get page after page of hits. Wikipedia describes
productivity as “a measure of the efficiency of production, [it] is a ratio of
what is produced to what is required to produce it”.
This approach is straightforward, scientific
even.
Dealing with people however, is more of an
art. It is a balancing act of knowing how to properly respond to poor
productivity, whether it is on a systemic or individual basis. The right answer
can lie in performance management on one end of a spectrum, or in an assessment
of fitness for duty and disability management on the other. In both the labour
and employment contexts, there is a duty to determine what the underlying cause
of the low productivity is. If there is a reasonable basis for believing that
the employee is not culpable for the lack of productivity, and the systems or processes
in place are not the culprits, an underlying disability could well be the cause.
Two cases in the last five years come to
mind in the context of employee productivity. They are Poliquin v. Devon Canada Corporation, 2009 ABCA 216 (CanLII) and Foerderer v. Nova Chemicals Corporation,
2007 ABQB 349 (CanLII). Both are examples of employees behaving badly. In each instance,
the employees were dismissed for cause and brought wrongful dismissal actions
that were ultimately unsuccessful. In Poloquin, the employee was a senior
supervisor. His termination for cause was upheld on the basis of his acceptance
of free landscaping services from Devon suppliers and for viewing and
transmitting pornographic material on his work computer. If it is, unlike in the following two case
examples, performance management is not the right way to proceed.
In Feorderer, the employee was an
administrative team leader. His actions negatively affected those in his group
and one female employee in particular, creating a poisonous work environment. His
transgressions included accessing and viewing pornography while at work,
sexually harassing at least one employee, retaliating against her when she
complained and lying during the course of an investigation.
There is no doubt that the policy and code
of conduct breaches in each instance were "deplorable". There is also
no doubt that these employees’ actions negatively affected their own
productivity and those of their co-workers. How could there have been high
output with the employees’ actions resulting in their own, and/or their
co-workers, low output?
Their employers rightfully took strong
action to deal with the respective situations. They not only had a moral,
ethical and legal obligation to take steps to stop the behaviours at issue when
they became aware of them, they also had a business interest in doing so. In
neither instance was there a legitimate underlying disability that made the
employees' actions non-culpable or that required accommodation. As such,
performance management, including termination for cause, was the proper path to
take.
The Court of Appeal referenced the
following quote from a Supreme Court of Canada case in the Poloquin decision:
“A supervisor’s responsibilities do not begin and end with the power to
hire, fire, and discipline employees, or with the power to recommend such
actions. Rather, a supervisor is charged with the day?to?day supervision of the
work environment and with ensuring a safe, productive,
workplace.”
This is the
extent to which productivity is discussed in either case. But again, this
doesn’t mean that it is not important. In fact it is fundamentally important. A
sufficiently unproductive workplace will drive an organization out of business.
As Paul J. Meyer,
a management leadership consultant, has said “[p]roductivity is never an
accident. It is always the result of a commitment to excellence, intelligent
planning and a focused effort.” In the employment and labour law context, this
means having strong performance management, fitness for duty and disability
management policies and knowing which to use when based on a commitment to
employee wellness with clearly communicated goals and objectives for employee
behaviour.
Ultimately,
effectively managing low productivity through performance or disability
management is key to business success in this tumultuous world market.
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