Workplace Restoration: An Interest-Focused Approach for Work Units or Teams

Conflict that arises in organizations is complex and often driven by a multitude of factors unique to each situation. If ignored, the conflict generally does not get better with time. Unresolved workplace conflict can destroy relationships, create feelings of uncertainty or distrust, erode morale, and negatively impact productivity.

Most organizations are well-equipped with processes to respond to conflict that has been escalated to a complaint or grievance. A formal process may entitle an employee to a fact-finding investigation, hearing, or arbitration before a third-party neutral factfinder, a hearing officer, or an arbitrator. These “rights-focused” approaches to conflict resolution centre on the legal rights of the parties and can be adversarial and competitive.

Many organizations have implemented informal conflict management processes that focus on problem-solving at an early stage, in an open manner and as close to the source of the problem as possible.

Mediation is frequently employed in organizations as an informal conflict management process to resolve differences between individuals. As we have found, workplace mediation can allow those experiencing conflict to engage in a facilitated dialogue that helps them identify shared interests and mutually agree on the next steps to rebuild, or build, a respectful working relationship. As such, it is an “interest-focused” approach to conflict resolution where the employees involved ideally create a “win-win” solution that they are more likely to sustain because it meets their interests.

What is the appropriate informal conflict management process for work teams/units, departments, or perhaps even whole organizations? Workplace Restoration is an “interest-focused” process that is forward-looking and can create win-win solutions to assist larger groups of employees develop and maintain healthy and positive work environments.

While the process is implemented on a greater scale and uses different tools than mediation, Workplace Restoration similarly actively engages employees. In doing so, the process gives employees a voice as they identify what they value in their workplace, their concerns and fears, and any suggestions for resolving commonly identified issues.

Is a Workplace Restoration Right for Your Organization?

Things to consider:

  • There is no “one size fits all” when it comes to Workplace Restoration
  • Meaningful involvement from employees, unions, and management creates buy-in to the process and ownership over the outcome of improving the workplace culture.
  • The needs of each situation must be evaluated through a Workplace Assessment phase followed by the development and implementation of a custom-designed Restoration Plan.
  • Solutions and strategies should be based on the information gathered and varied according to the unique circumstances of each workplace.
  • Restoring the workplace is typically not a quick or easy fix, and regular check-ins on progress will assist the workplace in adjusting initiatives, as necessary.
  • Don’t let lack of follow-through destroy the momentum gained.

Not surprisingly, Workplace Restoration processes are most successfully employed when implemented proactively, guarding against a deteriorating work environment, the inundation of leadership with numerous complaints and grievances, or challenges like employee turnover. Leaders who pay attention to the signs will have a gut feeling that something needs to be done to improve the health of the workplace culture.

Signs that a workplace culture is at risk and may need restoration:   

  • Negative narratives
  • Informal complaints
  • Persistent damaging rumours
  • Increased instances of incivility or disrespect
  • Low morale or apathy
  • Poorly performing team
  • Limited or poor communication
  • Prolonged interpersonal conflict, cliques and/or gossip
  • Negative references to the workplace as “toxic”, “poisoned” or “dysfunctional”

Terms such as “toxic” and “poisoned” are becoming commonly used and may, or may not, include harassing behaviours as legally defined. What they do signify, at the very least, is a negative perception of the workplace environment. Should that perception be prevalent it may become a seedling for behaviours and a culture consistent with that belief.

Workplace Restoration is particularly challenging following the conclusion of a Workplace Investigation, which has all the benefits and disadvantages of the rights-focused process it is.

Workplace Investigations

Investigations are:

  • A necessary part of the system to protect employee entitlements in the workplace
  • Most often commenced by a formal complaint about an incident or event that occurred in the past
  • Confidential and formal to provide for a fair and full investigation
  • The investigator, as an independent third party, gathers evidence and makes a finding as to whether each allegation is substantiated by the evidence
  • Focuses on rights and does not address all the underlying issues that brought the complainant to make a complaint, the future workplace environment, or relationships
  • Can be lengthy and disruptive

Consequently, restoring the damaged relationship between the complainant and respondent after an investigation can be complicated and challenging. In this win/lose scenario, if the allegations are unfounded, the respondent often feels completely exonerated, while the complainant feels the process is flawed and loses faith in the complaint process. If the allegations are founded, the respondent may feel the process is defective which makes their successful reintegration, if appropriate, difficult.

Workplace Restoration Post-Investigation

A Workplace Restoration post-investigation should include a comprehensive and individualized assessment to identify the parties’ broad range of interests and needs. This includes what each would need to be in place for them to participate and what will allow them to move forward. Based on these insights, the restoration plan might include coaching, training, mediation, and operational or structural changes.

The unintended and widespread negative impact the investigation process may have had on the work unit is overlooked after a workplace investigation. For example:

  • Colleagues who may have been directly involved as witnesses will have some sense of the people and incidents under investigation but lack knowledge of the outcome which can create uncertainty and skepticism.
  • If the larger group becomes aware of the situation, confidentiality requirements may leave them in an information vacuum which can create confusion and, possibly, erode trust in each other, leadership, or the complaint and investigation process.
  • The work unit may experience anxiety and fear, decreased morale, and a loss of productivity.
  • Other working relationships may be damaged if gossip or alliances occur.
  • Disruption may be the result of changes to personnel, roles, processes, and workload during, or after, the investigation.

Where restoration of a larger group is required post-investigation, a Workplace Assessment is needed to not only diagnose the root causes of underlying issues but also to identify what is working well. This information-gathering phase should be future-focused and inclusive. As it is not limited to investigating a specific complaint or grievance, customized restoration strategies may include:

  • Mediation between pairs or multi-party mediation
  • Team building exercises
  • Trust building interventions
  • Resetting community norms and expectations
  • Training around conflict management
  • Facilitated opportunities for people to heal
  • Improved communication processes
  • Clarifying policies and supports
  • Operational or structural changes

Workplace Restoration in Practice

The following is a summary of a workplace that experienced disruption and harm during two interconnected investigations that took place over one-and-a-half years. The investigations were significantly delayed by an illness experienced by the investigator. The organization was located in a small town; there were five local managers, 20 full-time permanent staff, some contract employees, and many more seasonal employees; the next level of management and Human Resources were not located at the site. The first investigation consisted of allegations of sexually inappropriate behaviour by a manager, which were substantiated by the evidence. In the second investigation, the respondent made allegations against nine of his colleagues. The majority of these allegations were not substantiated, and some were found to be in bad faith. The manager, who lived in the small community, was immediately removed from his position at the time of the complaint and was allowed to resign once both investigations were completed.

During the assessment for the Workplace Restoration, managers and permanent employees expressed a high degree of remorse as the manager’s conduct had been an “open secret” that had been tolerated for years as “that’s just what he is like”. The team described themselves as a “family” and had a number of interconnected relationships. Due to the instruction to maintain confidentiality, they felt unable to seek support from individuals they normally would engage with during stressful times. The work unit felt abandoned by management as the senior local manager, a respondent in the second investigation, had to rely on upper management and Human Resources (these personnel were not consistent during the time period of the investigations) to coordinate the investigation and communicate information to the organization.

The Workplace Assessment consisted of confidential interviews with the complainant, all local management, each respondent in the second investigation, others whom management identified as impacted by the investigations, and any others who expressed an interest in being included. Based on the input from these individuals, the following interventions took place, with consideration given to sequencing and timing:

  • Executive leadership and HR attended on-site to provide acknowledgement and make a renewed commitment to ensure a respectful workplace and effective resolution of complaints. They described key learnings from this experience on managing and supporting work teams during an investigation.
  • In-person training for all local management on their prevention and resolution responsibilities under the Respectful Workplace Policy.
  • In-person training for employees on appropriate conduct under the Policy, communication and conflict management skills, and a stepped approach to issue resolution.
  • General information provided on the investigation process.
  • A facilitated peer circle to create a safe and inclusive space for individuals and the workplace community to heal.

Several other issues were identified by the interviewees that were not related to the investigations. Interventions to address these issues included:

  • Overcoming resistance to change by refreshing the strategic plan and multi-year business plan through consultation with employees and providing ongoing communication of changes.
  • Aligning the organizational structure to support strategic objectives.
  • Providing local management with executive leadership and HR support to hold employees accountable for performance.
  • Offering mediation to address negative interpersonal working relationships between two different pairs of employees.
  • Demonstrating procedural fairness in resource management (fair hiring practices).
  • Convening team building workshop(s) with objectives such as gathering feedback on the restoration action plan, providing training, and creating a Team Charter.

Workplace Restoration is an important tool to have in your toolkit when seeking to improve the work environment for teams/units, departments, or a whole organization. As an informal and interest-focused process, it can be best employed proactively when signs of an unhealthy culture emerge.

An inclusive assessment and customized restoration strategy can avoid the unnecessary escalation to formal and rights-focused processes that can cause disruption and damage relationships. Workplace Restoration is also an effective remediation tool to engage a work unit in building a healthy and productive work environment after an investigation.

About the Author

Heather Swartz, M.S.W., C. Med, Acc. FM Emeritus, has been a conflict management professional since 1999. She has delivered a broad range of dispute resolution services across Canada including mediation for workplace, family and civil disputes;  coaching;  fact-finding investigations into workplace discrimination and harassment complaints;  workplace assessment, and workplace restoration. Heather has provided group facilitation services for numerous construction partnering workshops, strategic planning, and consultation forums. She offers customized training in various topics: communication skills and handling difficult conversations, mediation, organizational conflict management, managing employee relationships, and workplace restoration. She has been an instructor for the University of Waterloo in the Certificate in Conflict Management Program at Conrad Grebel University College, McMaster University, the School of Social Work at the University of Toronto, and Trent University. Heather is a Chartered Mediator (C.Med.), a past President of the Alternative Dispute Resolution Institute of Ontario (ADRIO) and the 2017 recipient of the ADR Institute of Canada (ADRIC) Lionel J. McGowan Regional Award of Excellence.

Heather is a facilitator for Queen’s IRC custom programs, including Workplace Restoration.

7 Steps for a Sustainable Labour Relations Strategy

Having worked as a Labour Relations Expert for the past 30 years, I feel it is important to understand the critical steps in maintaining a sustainable labour relations strategy with corresponding metrics to ensure ongoing success.  Creating a positive and collaborative work environment while ensuring fairness and productivity requires a strategic approach.  Listed below are seven essential steps that I have used and shared with others to achieve a sustainable labour relations strategy.

1. Comprehensive Assessment

The initial step involves conducting a thorough review of the current labour landscape, both internally and externally. This includes evaluating existing policies, employee engagement levels, union relations, and current challenges such a workforce labour shortages. Utilize metrics to benchmark employee engagement against your previous records or other organizations to determine the best course of action. Another valuable tool is the Net Promoter Score (NPS): a single-question gauge of staff engagement that asks, “On a scale from 0 to 10, how likely are you to recommend this organization to a friend?” The response to this question may help guide your improvement plan.

2. Collaboration and Communication

Establishing open channels of communication is a significant undertaking, yet crucial for success. In my experience, I have leveraged communication experts and engaged the entire senior leadership and management team to develop strategies that enhance engagement with employees, labour groups, and stakeholders. A consistent organizational approach helps ensure a better understanding of everyone’s needs, concerns, and desires. Creating an inclusive environment makes staff and labour groups feel heard and valued. Communication effectiveness can be gauged through metrics such as the percentage of employee participation in town hall meetings, responses to surveys, and the number of participants in feedback sessions.

3. Policy Development and Adaptation

Crafting or adapting policies that align with legal standards, industry best practices, and employee expectations assists significantly to sustain a positive labour environment. By supporting a fair and equitable organization, these policies are transparent, fair, and inclusive, fostering a sense of security and trust among the workforce. I have used numerous strategies with the implementation of new policies, including the use of focus groups, requesting input from labour groups and monitoring compliance. Monitoring policy adherence through quantifiable metrics helps ensure the policies are being used appropriately and are making a difference. Some examples of measuring of policies include measuring compliance rates, frequency of updates, and tracking any fluctuations in employee morale or performance against policy changes.

4. Training and Development Programs

Invest in continuous learning and skill development initiatives to provide employees and management with the tools necessary to navigate evolving labour dynamics, fostering adaptability, and preventing potential conflicts. Customized education for leaders, both management and labour leaders, not only aligns practices but also serves as a team-building opportunity, enhancing understanding of differences. Drawing on my experience as a Coach at Queen’s University Industrial Relations Centre, and from feedback from participants, I can affirm the cost/benefit of bringing your team together in a controlled, consistent learning environment far outweighs training individuals with different tools and programs. The ROI of such programs can be measured through increased productivity, linked to various mechanisms such as new skill development, reduced absenteeism, and improved collaboration among teams.

5. Conflict Resolution Mechanisms

Implement robust conflict resolution mechanisms by establishing procedures for addressing disputes quickly and fairly, with the goal of finding solutions that benefit all parties involved. Timely intervention can prevent escalations. Additionally, establish mechanisms for enhancing relationships with labour groups and frontline employees. Programs, such as joint labor-management meetings and focus groups to gather employee opinions, along with tracking the time taken to resolve conflicts or disputes, help monitor the labour relations climate. Setting targets for resolution and measuring against these targets ensures swift and efficient conflict resolution, contributing to the building of trust within the workplace—a key component of sustainable labour relations.

6. Regular Evaluation and Adaptation

Regularly assess the effectiveness of implemented strategies to ensure that they continue to work for the organization. Solicit feedback through surveys or focus groups, analyze outcomes, and be ready to adapt approaches based on the feedback received. Regularly analyze and compare metrics against predefined goals allowing for strategy adaptation based on the data obtained. This may involve revising policies, enhancing training programs, or refining conflict resolution processes as needed.

7. Embrace Sustainability and Social Responsibility

Integrate sustainability practices into labour relations initiatives, by building trust and implementing programs that ensure fairness and equity within the organization. Showcase a commitment to social responsibility, fair labour practices, and community engagement by implementing a diversity, equity, and inclusion program where racialized and oppressed groups are seen and treated as equal partners. This not only enhances the organizational brand but also fosters a positive work culture. Quantify the impact of social responsibility initiatives by measuring community engagement, employee volunteer hours, or carbon footprint reduction attributed to sustainability practices.

By implementing these steps, a sustainable labour relations strategy can be developed and maintained. Remember, continual refinement, measurement and adaptation are key to navigating the ever-evolving landscape of labour relations.

About the Author

Elizabeth Vosburgh’s passion for strengthening labour relations and human resources practices is informed by her experiences working in both managerial and c-suite roles, as well coaching for Queen’s IRC since 2019. She has been involved in all aspects of labour relations, from the internal grievance process to arbitration. She has led complicated negotiations, restructuring, professional practice, complex return to work, accommodation, occupational health and safety, as well as workplace restoration. She is a sought-after advisor to senior leadership teams. As a Certified Human Resources Executive (CHRE) with the HRPA, a Registered Nurse with the College of Nurses of Ontario, and a Certified Health Executive, Elizabeth applies both her practical experience along with theory to help individuals and organizations build culturally sound labour relations and human resources programs.

 

Using a Facilitator for Negotiations

Is a facilitator a useful investment in labour negotiations? Can a facilitator assist with relationship building during bargaining? What is the difference in the role of a facilitator versus using a mediator?

Facilitation is defined simply as “the act of helping other people to deal with process or reach an agreement or solution without getting directly involved in the process, discussion, etc. yourself”.[1] Therefore, “a facilitator is someone that supports and makes it easier for a group of people to work together towards a common goal”.[2] Facilitators assist people to communicate more effectively and reach consensus. They also ensure only one person speaks at a time, everyone who wants to speak is heard and the parties remain focused on the issue to be resolved.[3]

I have had the opportunity to experience facilitated negotiations both as a negotiator and as a facilitator. When Interest-Based Negotiations (IBB) were popular, facilitators were used from the beginning to first educate the parties and then facilitate bargaining. The facilitator was the key to keeping the parties moving forward, staying constructive, and focusing on not resorting to traditional positional bargaining. For several reasons, not for this discussion, labour negotiations rarely rely on IBB anymore; however, the role of a facilitator has continued particularly where the parties have a difficult relationship.

When I facilitate, I am guided by the lessons learned in IBB and as a facilitative mediator, where the facilitator must always remain neutral and have union-management/negotiation experience. To be effective, facilitators “need to demonstrate independence and integrity so that a relationship of trust can be developed”.[4]

Through the negotiation process, facilitators ensure:

  • All relevant information is shared in a manner that is both understandable and can be validated.
  • The parties define their own objectives and make their own informed decisions and choices.
  • The parties feel ownership for their decisions and find their decisions satisfying and meeting their needs.[5]

Facilitators guide the process in consultation with the parties involved. I always begin with the parties developing their own ground rules for behaviours during bargaining, including separating the person from the problem. As a facilitator, I can rely on these ground rules when bargaining gets difficult and use them to guide the parties through those difficult discussions and decisions.

It is essential for the facilitator to understand the parties’ history – in bargaining and in their relationship that could impact negotiations i.e., key grievances, litigation, ongoing communications, etc. If I am new to their relationship, I request an opportunity to meet with each party separately to hear their history, expectations, and needs for the current negotiations, meet the key individuals, and build a working relationship. I also ask the parties to start thinking about their settlement zone and BATNA (Best Alternative to a Negotiated Agreement) early in the process.

Based on my learnings, I then work with parties to design their bargaining process. The process could include:

  • Establishing bargaining dates
  • Providing opening statements
  • Developing ground rules
  • Developing communication protocol to their parties and/or press during bargaining
  • Exchanging proposals and information sharing/disclosure
  • Direct bargaining and timing
  • Bargaining conclusion
  • Next steps if no agreement
  • Ratification
  • Post-bargaining reflections

Depending on the parties, I have found some of these stages are set out in my contract or agreement to facilitate.

Can a facilitator assist with relationship building during bargaining? Is a facilitator a useful investment in labour negotiations?

My answer to both questions is absolutely yes.

I have never been contracted to facilitate negotiations between parties with great relationships. Negotiations are typically adversarial in goals and can be complicated even when the parties have good working relationships. Where parties have little trust and a poor relationship, there will be reluctance to share information and collaborate during bargaining to obtain mutually satisfactory outcomes. Investing in a facilitator can be the first step in the parties changing their relationship.

While a facilitator is a guide, they can also provide the parties with education and other assistance during negotiations. Facilitators listen carefully to what the parties are saying and watch body language. This can be extremely useful when the parties are discussing contentious issues and may not be actively listening or watching the other parties. What I hear and see can be useful as I assist the parties. As a neutral, I can see and hear settlement opportunities because I am not emotionally vested in the outcome.

Where the parties are discussing issues constructively and effectively, I do not intervene. These are the building blocks for the parties’ relationship moving forward. However, when discussions become heated and unproductive, I will intervene. When I intervene, I will use my skills to de-escalate the situation by reframing the conversation or asking a question. If this is not effective, I will suggest the parties’ caucus. The time in caucus provides an opportunity for the parties to vent independently and for the facilitator to assist them. In caucus, I may ask questions to understand the dispute better or provide information that I heard/saw to help them understand a shared interest or option that was lost in the heat of the moment. The options come from the parties, not the facilitator.

As the parties move through negotiations and become more difficult, the parties need to keep communicating and discussing possible options for settlement. The key for the facilitator is to maintain engagement to ensure the parties are open to settlement. I find this is the point in facilitation that is often the most difficult but important time for the facilitator, as it is the time when the facilitator’s subject matter expertise can be the most important. This expertise can be used to ask probing questions to the parties’ individually or together to assist them with problem-solving (i.e., what has their research demonstrated is the normative wage increase, what other collective agreement language exists in the sector that addresses their needs, etc.).

What is the difference in the role of a facilitator versus a mediator? 

While the role of a facilitator is set out above, a mediator’s principles are the same, but instead of facilitating, a labour mediator will evaluate the situation and push the parties to settle. This is done by suggesting options and opinions, and advising based on their subject matter expertise and possibilities based on normative settlements.

A labour mediator will exert control over the process, as the parties rarely meet in full, face-to-face negotiations but rather in small groups or alone using shuttle diplomacy. The mediator will be vocal with the parties about their offers and positions. The mediator will often provide the parties with an opinion regarding the likelihood of success of their BATNA and the risks of not settling but in the end, the parties still control whether to settle or not.[6]

It is important to note it is possible to have to facilitator change roles and become a mediator. If this is the desire of the parties, they should consider this option before selecting a facilitator to ensure they are willing to become a mediator. The advantage of this dual role is it can save time and money in bargaining because the facilitator is aware of the background, proposals, items in agreement, and outstanding issues versus bringing in a mediator who would need a briefing on the situation and progress to-date.

In conclusion, in a complex labour relations environment, using facilitators to assist the parties in relationship building, including negotiations and day-to-day labour relations, can offer the parties an opportunity to save costs. Facilitators can help the parties to collaborate and find their own settlements and time-effective solutions to a wide range of issues such as a backlog of potentially expensive grievance arbitrations, turnover issues, and negotiations.

About the Author

Beverly Mathers

Beverly Mathers is a mediator/facilitator/workplace investigator who specializes in employment, workplace and labour matters. She conducts mediations for grievances or disputes, labour negotiations, interest arbitration, employment matters, health and safety, pay equity, and pensions and benefits including disability benefits. Beverly began her career as a Registered Nurse, becoming a health care labour leader and then Chief Executive Officer at the Ontario Nurses’ Association.  She holds a diploma in Registered Nursing from Seneca College; a Bachelor of Arts in Labour Studies from McMaster University; a mediation certificate from University of Guelph; a Master of Arts from Royal Roads University in Organizational Conflict and Management; a certificate in Leadership Excellence from Queen’s University IRC; and Workplace Investigations Training and Certificate Program from the HRPA. She provides mediation using an evaluative or facilitative style depending on the situation and the desire of the parties, and neutral facilitation for workplace conflict management, dispute resolution, negotiation and relationship building.

 

[1] Facilitation | English meaning – Cambridge dictionary. (n.d.). Retrieved January 19, 2024, from https://dictionary.cambridge.org/dictionary/english/facilitation.

[2] Nauheimer, R. (2022, August 3). What is facilitation?: Facilitator school. Retrieved January 19, 2024, from https://www.facilitator.school/blog/what-is-facilitation.

[3] Stitt, A. (1998).  Alternative dispute resolution for organizations: How to design a system for effective conflict resolution. John Wiley & Sons Canada Limited, Etobicoke, Ontario.

[4] Barrett, J. T., & O’Dowd, J. (2005). Interest-based bargaining: A users guide. Trafford Publishing, Victoria, BC, Canada. (p. 91).

[5] Barrett, J. T., & O’Dowd, J. (2005). Interest-based bargaining: A users guide. Trafford Publishing, Victoria, BC, Canada. (p. 92).

[6] Holland, E. (2020, August 31). Understanding the top 3 styles of Mediation with ADR Times. ADR Times. Retrieved January 19, 2024, from https://www.adrtimes.com/styles-of-mediation/.

The Importance of a Trauma-Informed Approach to Workplace Investigations

Human Resources and Labour Relations professionals are typically not clinicians, physicians, or social workers. So why has the vast and complicated area of “trauma”, more commonly relevant for those in medical or emergency services, become so crucial for us to understand? And more than that, what does being “trauma-informed” mean and how does it relate to workplace investigations?

To answer these questions, we must first begin with our raison d’être as a workplace investigator – that of being a fact-finder.  Employing procedural fairness, our job is to piece together a workplace incident based on multiple perspectives and determine if wrongdoing has transpired. By interviewing all parties involved, we seek detailed information and assess credibility. We use our people skills to build rapport, we practice active listening and we avoid making assumptions about the outcome. How we conduct ourselves with all parties to an investigation has a direct impact on the quality of the information received (i.e., finding all the facts). This, in turn, affects the accuracy of the investigation’s outcome and the suitability of follow-up recommendations. Moreover, a well (or poorly) conducted investigation can have an impact on organizational trust (i.e., the employees’ trust in supervisors and the organization), which can lead to favourable (or detrimental) influence on overall organizational performance.

The Centre for Addiction and Mental Health (CAMH) defines trauma as “…the lasting emotional response that often results from living through a distressing event.” One such context that is an exception to this rule is generational trauma, whereby a group of people with shared characteristics experiences trauma from systemic abuse, discrimination/racism, war, etc., and subsequent generations experience indirect suffering from those events.

CAMH continues to state that “Experiencing a traumatic event can harm a person’s sense of safety, sense of self, and ability to regulate emotions and navigate relationships. Long after the traumatic event occurs, people with trauma can often feel shame, helplessness, powerlessness and intense fear.” From this, we surmise that trauma can have long-lasting and wide-ranging adverse impacts on the individual beyond the immediate aftermath of a traumatic incident. It would then be fair to expect that such trauma is not left at home when employees come to the workplace.

Further, trauma need not only occur in employees’ personal lives but can also arise in the workplace itself, e.g. sexual assault, workplace violence or bullying, or even major organizational decisions such as job cuts or reassignments that may significantly impact employees’ lives. We must also be cognizant that in todays, and likely future, paradigm of remote work, this means an employee could experience a workplace trauma even from their home office.

Returning to trauma’s relevance vis-à-vis workplace investigations and our pursuit of the truth, we must recognize that one of our brain’s primary functions is to protect us from danger. In the aftermath of a traumatic event, neurological changes can occur in the brain (the housing unit for information) that impact how one remembers the traumatic event. These events can impact our authority over memory (i.e., the capacity to recall a trauma experience as a cohesive narrative), perception, and the ability to recount details of events.

By asking questions, we effectively ask – can you please enter your conventional memory storage unit and retrieve this piece of information? We know though for some, the impact of trauma may have altered the location of the memory housing unit and thus, the conventional (i.e., chronological) line of questioning may not be the best path to seek answers. Asking “what else happened?” may be better than “what happened next?”

Additionally, traumatic impact may cause a range of emotions that can influence the information sought, as emotional experiences/distresses can have significant impact on an individual’s response (or lack thereof) in the context of investigations. For example, an interviewee’s fear, shame, or anger may lead to outbursts which can derail an interview, curtail the individual’s cooperation, and prevent obtaining all the necessary and pertinent facts.

Because individuals respond differently to trauma, an investigator must be equipped to handle the process accordingly. However, the training, knowledge base, and skill set required to be trauma-informed does not mean we are now taking on the role of a psychologist (or the like) in carrying out a workplace investigation. A trauma-informed approach is an enhanced version of the skills and techniques we already employ as an investigator, and can be applied to widely-accepted successful interviewing approaches such as the PEACE method. It means first recognizing trauma, then understanding how, what, where, and when to ask questions, and then employing techniques and strategies that support a process for mitigating or reducing the possibility of re-traumatization.

Trauma-informed training offers skills and tools to help interviewees feel present, grounded, refocused, and safe. For example, it can help investigators de-escalate a flashback reaction, or keep an open mind when interpreting what some will find to be difficult behaviours like depression, anxiety, irritability, impatience, agitation, or anger. Even a panic attack can be misinterpreted, and possibly interpreted as a manifestation of guilt. It is important to recognize that an individual’s mastery of trauma-induced symptoms do not necessarily reflect a lack of credibility, such as a lack of eye contact, slumping posture, and/or reddening of the face and neck – all traditionally associated with shame and guilt.

If a trauma-informed approach is not employed correctly or at all, detrimental effects could include re-traumatizing the interviewee, which may result in an already distressed party going off on (longer) medical leave, or a lengthier investigation. Consequences could also include incomplete information and possibly insufficiently supported (or worse, erroneous) investigation outcomes. Further, if the investigation is perceived by employees as having been improperly conducted, there could be broader implications as organizational trust and reputation may suffer, and indirectly, so too could organizational performance.

However, by correctly employing a trauma-informed approach such that the interviewee feels safe in the interview, including exercising empathy, establishing rapport, and building trust, as well as giving the interviewee a sense of control (e.g. choice of returning to unanswered or difficult questions later in the interview), it should be expected that the interviewee will likely be more forthcoming with information and even willing to participate in a follow-up interview if necessary. Having obtained all pertinent information due to the “informed” approach, yielding the correct investigational outcome results in employees’ being more trusting of the investigation process, contributing towards organizational trust.  With improved organizational trust, a culture of underreporting incidents might be positively shifted as employees gain faith that procedural fairness will consistently transpire and justice will be done.

To summarize, workplace investigators don’t need to be experts in neuro-psychology, they just have to have a basic level of trauma-informed training. This will help them create an environment of safety, remain neutral, and validate the psychological struggles interviewees may experience during an interview.  As the saying goes, “one does not have to be a therapist to be therapeutic.”

Tips for Trauma-Informed Interviews

  • Ensure the interview is conducted in a safe, private place and in an unhurried manner
  • Exercise empathy, but do not say “I understand” or “I know how you feel”; use neutral language
  • Plan your questions but be flexible – do not lead with the hardest questions first
  • Maintain open-ended and non-suggestive questions
  • Afford interviewees a sense of control by potentially returning to unanswered questions later, or seeking their permission before showing graphical evidence
  • Minimize interruptions
  • Permit a support person in the interview (though set guidelines as to the degree of their involvement)

Benefits of a Trauma-Informed Approach

  • Avoid re-traumatization
  • Higher yield of information
  • More accurate investigation findings
  • Indirect enhancement of organizational trust
  • Reduce potential underreporting of incidents

About the Author

Tova Bar-Dayan

Tova Bar-Dayan, MIR, CHRL, WFA, is an independent HR/LR consultant and workplace investigator with progressive roles in both public and private sectors, in unionized and non-unionized environments. She takes great pride in conducting workplace investigations, assessments and restorations that are thorough, impartial, trauma-informed and, above all else, put people first. During her time in corporate roles as well as with her consulting firm, Tova has investigated claims of harassment, sexual harassment, workplace bullying, racism/anti-black racism, theft, improper conduct, and more, including those which could have resulted in significant litigation and/or reputational risk. This experience is bolstered by her status as a licensed private investigator (Ontario).

 

Download a PDF of the full article above: The Importance of a Trauma-Informed Approach to Workplace Investigations

Do Employees Have the Right to Work from Home?

At the onset of the COVID-19 pandemic in 2020, global workforces experienced a sudden and forced shift into remote work. That experience dramatically shifted expectations and realities for office jobs around the world. Over the last few years, workers have often expressed a preference for working remotely, and in many cases successfully continued to negotiate work from home arrangements as labour market shortages gave employees negotiating power. However, more recent shifts in the economy have resulted in less labour shortages in certain industries, and employers are now increasingly requesting that workers return into the office, at least on part-time basis. This shift was recently highlighted in August 2023 when numerous media outlets reported that even Zoom Videoconferencing requested some of its workers attend the office at least two times per week.[1] This article will explore the rights of both employers and employees when it comes to remote work.

Download PDF: Do Employees Have the Right to Work From Home

 

Footnote

[1] Goldberg, Emma. “Even Zoom is Making People Return to the Office.” The New York Times. August 7, 2023. Retrieved online: https://www.nytimes.com/2023/08/07/business/zoom-return-to-office.html

 

 

4 Principles to Build Trust Between Union and Management

Trust … a feeling that is often hard to describe in words. We all know what it feels like when we trust someone, and conversely when we feel we are trusted. It becomes more complex when we consider trust in our personal lives vs trust in our work lives. What I have learned over my career is that there should not be a difference between the two – that to be most effective in the workplace (and be trusted) we need to follow the same simple principles that we do at home. In this article, I will focus on how leaders in organizations can effectively build trust with their union leadership and representatives; from my experience in the corporate world, many management leaders struggle with how to do this effectively.

To break it down into parts, I will focus on the principles I have learned to follow when working with unions to build trust in different organizations.

  1. Be authentic in ALL interactions with your union representatives.
  2. Treat the union like employees (as a matter of fact – they are!), not like cost-incurring burdens.
  3. Learn with your union leaders.
  4. Communicate always – don’t wait until it is time to bargain to start working through problems.

1. Be Authentic

This sounds obvious, right? It isn’t. I have coached so many leaders in different organizations on how to communicate and act when dealing with their unions. Leaders often lose their authenticity because they are afraid of saying ‘too much,’ or revealing secrets the union ‘shouldn’t know.’ Being authentic doesn’t mean you have to divulge everything. It means coming across as real, and open. It means ditching the ‘Tiger Suit’ to quote my earliest career mentor Peter Edwards. From my experience, many company leaders still feel it is a big act where they have to put on the tiger suits and let out the big intimidating roars. Put away the suit and try taking the authenticity approach. Don’t just act like you care, CARE.

2. Treat the Union like Employees

Union members are (as a matter of fact) employees. So often the way union employees are talked about in companies can be very divisive and biased. The difference between union and management employees is of course the collective agreement that lays out the terms and conditions of employment, represented by the union team. When leaders make an honest effort at the very top to speak about unionized employees like they are first and foremost employees of the company, it is amazing how this can cascade down through the organization. When a union is continuously spoken about as a cost burden, it can absolutely be heard and felt by those employees in the union. It is tough to quantify the cost that is avoided when leaders can genuinely treat union members as employees first.

3. Learn WITH your Union Leaders

To help build trust and the relationship with union leadership, it can be effective to invite them to share learning experiences. I have experienced this in two different organizations, where sharing the learning you are offering to your management leaders with your union leaders in the same room, can go along way (ie: Queens University Managing Unionized Environments program). Don’t feel you have to limit this to learning events. Invite union leadership and representatives to the table more often where you otherwise wouldn’t. It does wonders for developing relationships and trust.

4. Communicate Always

Communication is the foundation to all of the above. But it is still worth a call-out on its own. I have seen many leaders avoid great opportunities to proactively communicate with union leadership for a variety of reasons. It is far more effective when it is time to bargain if management has had open communication and frequent communication with union leaders. Set up mechanisms to deal with issues as they come in hopes of resolving them early. In my experience when this has been religiously followed, trust naturally is built which makes everything easier from a business perspective. It is no different than communicating with out-of-scope employees or your family at home. Remember – when you think you have communicated clearly and enough – you haven’t.

Trust is about relationships. The biggest downfall I have seen in organizations is leaders not taking the time to want to genuinely build the relationship, which then in turn, builds trust.

 

About the Author

Kathy McCrum is an accomplished HR professional that has worked in a unionized environment throughout her 22-year career. She started her career working for Canadian Pacific Railway where she first was introduced to the labour relations environment.  She held various management/leadership positions. Kathy moved into executive leadership when she made the industry change to heavy equipment. She became VP, HR and Safety for a Caterpillar equipment dealership in Saskatchewan. Following this opportunity, Kathy was brought to the Coop Refinery Complex (FCL) where she led the HR/LR department. She was able to get involved in bargaining for the company, as well as participate in many labour relations learning events that helped shape her approach. In 2017, Kathy moved on to become a member of the SaskPower executive team and was appointed Executive VP HR and Safety. Again, she worked closely with the different union organizations and built relationships and trust.  Most recently Kathy worked very closely with the WestJet pilots union (ALPA) as well as led the airports union to their first ever labour agreement. She is passionate in her beliefs that relationships and trust drive all of it. Whether you work with a union or not, you need to know how to, and honestly be genuine in your interactions with people if you want to be successful.  Currently she is the Executive VP at Trican (an oil and gas well services company).

Fairness in Workplace Investigations: How Much Should Respondents Know?

Workplace investigations are increasingly complex. New workplace investigators often struggle with how much information to share with the Respondent during the investigative process.

Questions often arise such as:

  • How much information is a workplace investigator required to share?
  • How much information should be shared before the Respondent’s interview?
  • What impact will disclosure or non-disclosure have on the outcome of the investigation?

What is the Standard of Fairness?

As a workplace investigator, you are a neutral third party and it is expected that you carry out your investigative process in a fair and objective way. In other words, in your role, you cannot “favour”, or even be perceived as “favouring”, one party over another. Ensuring that you are equitable towards both the complainant and the Respondent in a workplace investigation helps facilitate procedural fairness and is an essential component of your role.

Further, workplace investigators must remember that when the investigation is complete, their report and the entire investigation process may be subject to scrutiny. This scrutiny includes how “fair” the process was for the parties involved. A key element of this “fairness” includes how much and when information is shared with the Respondent.

Disclosure to the Respondent

Prior to an investigative interview with a Respondent, the Respondent should be made aware of the following:

  • What are the allegations made against them;
  • Who is making the allegations against them;
  • Where the alleged incident(s) took place;
  • When the alleged incident(s) took place.

Further, a respondent should also be advised:

  • that they will have the opportunity to respond to the allegations made against them;
  • that they will have an opportunity to provide their version of events; and
  • that they will be permitted to provide the investigator with the names of relevant witnesses that they would like the investigator to interview.

In addition, when the respondent is provided with the above-noted information, they should be given a reasonable amount of time to prepare for the investigative interview. The amount of time required will depend on the number of allegations made.

Conclusion

The role of a neutral workplace investigator is to find and document the facts. When guilt or innocence is pre-judged, the workplace investigator does a disservice to the investigation and all those involved. Workplace Investigators must remain open to all possibilities, ask appropriate questions, and document the evidence. Providing the respondent with the information noted above is a crucial step in creating a procedurally fair process.

In preparing this article, the author interviewed Jamie Eddy, K.C., a senior labour and employment lawyer with Cox & Palmer in Fredericton, New Brunswick. Mr. Eddy noted that  providing respondents with the allegations made against them prior to their investigative interview is “critical” to the entire investigation process. This step provides a respondent “a key element of procedural fairness”. Mr. Eddy warned that should workplace investigators or employers not provide respondents with the allegations made against them before their investigative interview, they leave themselves open to allegations of procedural unfairness.

For additional support, I have provided a ‘Sample Respondent Letter’ (download a PDF below) for your use. Should you be required to need a letter like this in the future, you can adjust this letter to fit your specific requirements.

About the Author

Devan Corrigan

Devan Corrigan is an expert in workplace investigations and labour relations, having spent 20 years in human resources management and labour relations before founding an HR consulting company in 2017. He specializes in conducting workplace investigations including investigating complaints of harassment, sexual harassment, violence in the workplace, and other forms of employee misconduct. He holds a Master of Industrial Relations from Queen’s University as well as an Honours Degree in Psychology and a certificate in Human Resources Management from Saint Mary’s University. Devan’s expertise in human resources and labour relations, combined with his background in psychology, make him a go-to third-party workplace investigator. He is a member of the Association of Workplace Investigators and is on the roster for investigators for the Workplace Investigator Network (WIN).

Devan is the lead facilitator for the Queen’s IRC Fact-Finding and Investigation program.

5 Benefits to Growing Your Team’s Emotional Effectiveness

In the post-pandemic hybrid world, people are craving reconnection. They are looking to rebuild trust in organizations that look and function differently than they did just a few years ago. Leaders of teams know they must foster new ways of connection among their teams. Growing your leadership team’s emotional intelligence is key to building a connection and managing the increasingly diverse needs of employees, while creating a healthy and engaged organization.

This quote now holds meaning for teams at work:

“Never doubt that a small group of thoughtful, committed people can change the world; indeed, it’s the only thing that ever has.”
   – Margaret Mead, Cultural anthropologist

For the thoughtful, committed teams I have worked with recently, I have observed them having a tremendous experience with each other when they focused on identifying their own level of emotional intelligence, and working to gain an understanding of their own trust-growth opportunities. Then they can leverage trust to have conversations that strengthen their commitment on the team.

What is Emotional Intelligence?

Emotional intelligence is a set of emotional and social skills that collectively establish how well we:

  • Perceive and express ourselves
  • Develop and maintain social relationships
  • Cope with challenges
  • Use emotional information in an effective and meaningful way (2012, Multi-Health Systems Inc.)

To learn more about emotional intelligence, and the importance of it to leaders, please see my previous article:  Emotional Intelligence: How Leaders Can Use it to Their Advantage

5 Benefits to Growing Your Team’s Emotional Effectiveness

In the Queen’s IRC custom “Building Team Trust with Emotional Intelligence” program, leadership teams learn about emotional intelligence, and they explore how that relates to different levels of trust from individual, team, and organizational perspectives.

Below are 5 benefits to teams experiencing this program together. They are highlighted with some of the emotional intelligences:

  1. Understanding Emotional Reactions and Triggers as a Team
    There is value in the group learning together about emotional intelligence when they realize that they aren’t alone in learning how to become more emotionally effective. For example, Emotional Self-Awareness is one of the emotional intelligences that the team benefits from talking about. If a team is able to understand emotional reactions and triggers, then they can benefit from sharpening this understanding. If there is any tension in the team, it could be because there are moments of unawareness of how emotions are impacting the group. The team could put these emotions to positive use instead of being derailed by them.
    “We are similar in our journeys, but sometimes you can feel alone at work.” – team member
  2. Leveraging Empathy
    Training all leaders together creates space for people to step out of their departmental box. All levels of leadership participate including supervisors, managers and the CEO. This program is a customized way to promote open communication and collaboration, which often results in them getting to know each other better. One of the best emotional intelligences to leverage is Empathy, where they get to spend time understanding and appreciating how each other feels. For teams that have a lower score for empathy, it may be beneficial to think about how to ensure group consensus is reached before carrying out a decision; this is especially helpful during times where individuals’ worries or concerns take over instead of gaining an understanding of how decisions can be made that would beneficial everyone. Trust is strengthened in the team as they use empathy as a regular tool to be gaining insights into each other’s perspectives.
    “I experienced growth as a collective and individually…  Helped me to not just think of me, but to think of the team.” – team member
  3. Using Reality Testing
    By experiencing the build of a Trust Fit Plan, the team co-creates solutions to using emotional intelligence to their collective advantage.  Reality Testing is one of the emotional intelligences used by teams who want to honestly rebuild and repair trust. Reality testing is about remaining objective and seeing things as they really are, versus seeing things the way you want to see them. (2012, Multi-Health Systems Inc.)   Teams that can view situations from an objective stay point do strengthen their decision-making ability; however, during stressful times, emotions can impact how realistic they are in approaching challenges. When teams focus on accurately assessing a situation and understanding why the reasons occurred, trust becomes a stronger characteristic of the team.
    “There are opportunities to rebuild together now.” – team member
  4. Building Confidence and Trust
    Team members say they have more confidence in the group after sharing and participating in the discussions. They express feeling ready to do the work that needs to be done by making trust a part of their regular conversations – in other words, this program helps teams to look forward. By doing this work together, it helps teams to identify how to be more emotionally effective with each other, which can result in them finding new ways to do the work. Optimism is an emotional intelligence that teams leverage in order to see the best in people, and it helps to remain hopeful about the future despite challenges and issues. Conflict can be a natural result of diversity, so teams that leverage diversity make better decisions and create more trustworthy workplaces.
    “So much wisdom in this group. Now, I would trust you all in a decision. Ready to embrace a new way of working with each other.” – team member
  5. Developing Interpersonal Trust
    One participant said that this opportunity to be vulnerable in the group during the program was key to her learning experience. During the program, there are many small group break out discussions where team members can openly explore how the organization facilitates trust with their stakeholders too – the program looks outside of the organization’s walls so that teams can see themselves as a collective group who are co-creating for their customers, clients and the public in general. The emotional intelligence at play here is interpersonal relationships which is about creating relationships based on mutual respect and trust. This takes time. This 2-day program fully dedicates the time to learn way more about each other than a normal work environment permits; this is one of the most common elements teams build into their Trust Fit Plans: time and space to stay connected.
    “Free of judgement to learn in this space that is fully dedicated to team trust”. – team member 

Building Team Trust with Emotional Intelligence

This two-day custom program is based on our open enrollment Building Trust program. While many parts of the open program are also included when running in-house training, running custom training for your internal leadership team provides the opportunity for building trust and learning together as a team. Some of the highlights of the program are:

  • Prior to the program, each team member completes a confidential self-assessment online survey.
  • During the program, we explore the different emotional intelligences and participants receive their Individual EI Leadership Self-Assessment report.
  • We share a Group Profile – this provides a lens through which to interpret emotional intelligence (EI) results in a team or group setting. (It combines scores of individual self-assessments which is helpful to learn how they contribute to the collective EI of the team.)
  • Participants diagnose their organization’s current state, and collaborate to design a “Trust Fitness Plan” for their team by using the emotional intelligences.

Phases of Strengthening Team Emotional Effectiveness

As teams work together to strengthen their emotional effectiveness, they will follow these phases:

  1. They learn the Concept of emotional intelligence.
  2. They start to Experiment with the concepts by imaging saying or doing something differently.
  3. After the program, they have an Experience by trying it out and actually saying or do something differently.
  4. They Reflect and think about what it was like having that experience: How did you feel? What did you notice in the other person? Impact? Outcome?
  5. Repeat the phases like a fitness rep. The phases of learning constantly repeat, just like our actions for healthy living, like taking a fitness class. We don’t check off the fitness box and say “well, I exercised, so I am done doing that forever.”  The analogy to fitness is the foundation of the Trust Fit Plan where the team EI repetitions are embedded into how they work together.

For more information on a custom “Building Team Trust with Emotional Intelligence” program, please contact cathy.sheldrick@queensu.ca or find more information on our website: Customized Training

About the Author

Linda Allen-Hardisty

 

 

 

 

Linda Allen-Hardisty is an organizational development professional (Queens IRC OD Certificate), an executive coach (ICF PCC professional designation), a team coach (EMCC Global Accreditation), and a Forbes Coaches Council contributing member. She’s built a reputation as a vibrant, contemporary voice in the business world by blending her grounding in OD with a practical approach to addressing organizational challenges and opportunities. With a Masters of Education from the University of Regina, Linda’s uniqueness is that, prior to private practice, she fulfilled corporate leadership roles including the Director of Organizational Development in a company listed on the Hewitt Top 50 Employers in Canada and became the first Manager of Strategy and Performance for a municipal government undertaking cultural transformation. Over her 20-year OD career, she has helped many leaders – from corporate executives to entrepreneurs – improve their personal and professional success. She is a sought-after facilitator and advisor for executive development, strategy and change, team effectiveness, and emotional intelligence.

Linda is the lead facilitator for the Queen’s IRC Building Trust program, which runs in cities across Canada and virtually. She facilitates custom programs with a wide variety of organizations, including union groups, government organizations and private companies.

Back to the Collective Bargaining Table

The pandemic upended many things about our lives, both in our personal lives and in our workplaces. Collective bargaining was no different. Early in the pandemic, bargaining almost ground to a halt while everyone waited to see what was going to happen; we turned our attention to remote work, vaccine mandates and accommodations. Eventually, we had agreements expiring and had to bargain. Some parties rolled agreements over with little change for a year, hoping it would be over by then. It wasn’t. We have all had to face the reality that we have to negotiate, we have to address important issues, and we have to find a way to do that.

We started bargaining virtually. Zoom, Teams and Webex became important tools, and to our surprise, agreements were reached and it worked. Somehow. It wasn’t our first choice, but we found a way.

Now, with governments everywhere reducing or removing restrictions, it appears that we’re heading back to bargaining in person. At a real table instead of a virtual one. But even if we’re planning in-person negotiations in the near future, we’re not returning to “normal” – that’s still a ways off. We will need to transition, effectively, from a flat screen to sitting across from each other, in three dimensions, for the first time in a few years.

Here are some ideas and considerations to help with that transition.

1.    Plan the bargaining process, jointly, well in advance

In addition to the best practices about establishing ground rules for bargaining, such as data sharing, exchange of proposals, scope of bargaining, etc., there should be clear and detailed agreements around the health and safety of the process specific to COVID. Regardless of anyone’s views of vaccines and mask mandates, many of us have lived with some level of fear and concern of being in a room with other people. That isn’t going to disappear overnight. The more clarity everyone has about the process, how it will be run, what the safety protocols are, the more everyone can relax and focus on why we’re here – negotiating a collective agreement. Establishing the process clearly is best done jointly, and best done weeks before the parties are at the table. This should include clarity on:

  • Location and layout: Where will we meet? How large will the main room be? Will we be socially distancing, and if so, how? Do we need masks for walking in the halls or into the room? How long will joint sessions be? Is there good ventilation in the rooms we’ll be using?
  • Other protocols: In addition to these basic but important questions, what are the protocols we can all agree to if someone appears to have symptoms? What will happen if someone has come into contact with a person who then tests positive? What are we committing to disclose?

The more clarity all parties have around what to expect and what has been agreed, the more productive the bargaining process will be. Bargaining effectively requires focus, and only by first addressing health and safety logistics clearly and directly will everyone be able to focus on the negotiations themselves.

2.    At the table, make extra effort to keep all parties engaged

To make sure everyone stays focused on the issues, each party should make sure they are engaging both their own team members, as well as the other team’s members, effectively. This can be accomplished in a number of ways:

  • First, make sure your own team is paying attention and contributing. This is best done by giving each team member specific duties or activities, such as presenting information on an issue that affects their work area, responding to the other party’s presentation, and using their knowledge and expertise actively at the table. Many chief negotiators seem to live in fear of their own team participating, afraid they may say something “wrong”. We all need to get over this. Accessing the knowledge and experience of our team brings far more benefits than risks. As we sit together at a real table after so much time in isolation, this type of engagement is even more important.
  • Secondly, ask both parties to commit to open discussion and dialogue on every issue. To do this, create “dialogue time” on each issue where parties agree no commitments are or can be made. Use this time for free-wheeling ideas and solutions to be put on the table without fear of committing to anything. The more open dialogue the parties can have, the more engaged everyone will be. And you’ll get far better outcomes, as well.
  • Finally, take more breaks. Do not stay at the table for hours and hours at a time. Meet jointly, address and have open dialogue on a couple of issues, then break for a short time and return. This pattern of shorter joint sessions (perhaps either side of an hour) at the table, then caucus for half an hour, then back to plenary, is a good way to keep energy, focus and momentum in the negotiations. It will help everyone relax into the process, and to build and strengthen their bargaining muscles quickly.

3. Expect unusual responses

The fact is, we’re all a little bit twitchy, a bit jumpy, when it comes to suddenly working face-to-face after all this time in some form of distance and isolation. That’s normal. Our resources for social interactions are depleted. This means that someone, likely more than one person, will react out of proportion to something that happens during bargaining. They will feel the pressure and lose their temper over something, large or small. They will make an inappropriate comment. They will dig their heels in on a seemingly unimportant item. Expect this, and give everyone some of the benefit of the doubt. Instead of reacting equally over the top, take a breath.

Assume best intentions as much as you can. Stop and respectfully name what you see happening. Give them some space to reflect and think about what’s going on for them. Help them prevent the issue or behaviour from escalating. Believe me, you will also need some of that coming back the other way, too!

4. When negotiations are over, do a joint debrief with the other team

This is a best practice that successful parties do anyway, pandemic or not. But now, it takes on an added layer of importance. After a deal is reached and ratified, spend an hour or two with both bargaining teams and talk openly about what worked in the process, and what didn’t work. Discuss what took place and share perspectives.

Take the time to write this all down, capture it, so next round both parties have clear ideas on how to make the bargaining even more effective at the table. This will not only help both teams see the process from the other’s perspective, it will also improve the implementation of the deal just reached. And it will minimize negative assumptions that are often the cause of ongoing friction in the union-management relationship.

Summary

We have an amazing opportunity to take a hard look at how we have bargained in the past, and how we can actually “build bargaining back better”. We have the chance to negotiate better, to use this as a fresh start to actually improve how we bargain. We should never let a good crisis go to waste, as they say, when we have the opportunity to make this important process better all the way round.

About the Author

Gary Furlong

Gary Furlong has extensive experience in labour mediation, alternative dispute resolution, negotiation, and conflict resolution.  Gary is past president of the ADR Institute of Ontario, is a Chartered Mediator (C. Med.) and holds his Master of Laws (ADR) from Osgoode Hall Law School.  He is the author of The Conflict Resolution Toolbox, John Wiley and Sons, Second Edition 2020; the co-author of BrainFishing: A Practice Guide to Questioning Skills, FriesenPress 2018; and The Sports Playbook, Routledge, 2018. Gary has delivered collective bargaining negotiation skills training for both management and union bargaining teams, bringing a strong focus of effective and collaborative skills to both parties. Gary specializes in leading joint bargaining training for intact negotiation teams just prior to negotiations, with a focus on helping parties maximize joint gains at the table. He also conducts relationship building interventions to strengthen day-to-day union-management effectiveness away from bargaining.

Gary Furlong is the lead facilitator for the Queen’s IRC Negotiation Skills and Managing Unionized Environments programs.

COVID-19 Vaccinations and Workplace Rights: 2022 Case Law Update

Overview

Last year, there was much discussion on whether or not employers could legally implement mandatory vaccination policies in Canada. In the first part of 2021, COVID-19 vaccines were not readily available to all Canadians, and most employers had not implanted mandatory vaccination policies yet. By August 2021, most Canadian adults had been given the opportunity to become fully vaccinated. In this context, on August 13, 2021, the Federal Government of Canada announced the requirement for all federal public servants to be fully vaccinated by the end of September 2021. The Federal Government also instituted mandatory vaccination requirements for all employees in the federally regulated air, rail and marine transportation sectors by October 2021, while at the same time, requiring vaccination to travel by air or train effective November 2021. After the Federal government took the lead, many Canadian employers followed suit, and there was a rapid influx of mandatory vaccination policies implemented throughout the country in both public and private sectors (including unionized and non-unionized workforces).

There are now several Canadian labour arbitration decisions that consider whether or not mandatory vaccination policies in the unionized context are reasonable and justified. To date, most of these decisions have held that mandatory vaccination policies are reasonable and justified, illustrating an overwhelming consensus that employers can legally implement significant health and safety protections in the context of the COVID-19 pandemic. However, not all policies have been upheld in arbitral law. For instance, in one circumstance a labour arbitrator found a mandatory policy to be unreasonable given that workers could perform work remotely, and other measures (such as testing) could be effective in the absence of vaccination. In all circumstances the context of the workplace, along with the alternative mechanisms in the related policy, will be considered when evaluating the reasonableness of a particular policy.

This article will provide a case law update regarding the legality of vaccination policies in Canadian workplaces, updating a previous article written prior to the emergence of these decisions. While these recent decisions are directly relevant for unionized workplaces, the principles set out are useful for all employers, as the courts may consider similar principles when evaluating mandatory vaccination policies in relevant matters (such as wrongful dismissal claims arising out of the implementation of such policies). The current case law suggests that employers can implement protections against COVID-19 in the workplace, but such protections must be reasonable, balanced and relevant to the particular workplace. In the context of the COVID-19 pandemic, employers must continually consider the ongoing changes in public health direction as well as case law, as matters have continued to evolve and change quickly throughout the last two years, and so should each employers’ approach relating to health and safety measures (including mandatory vaccination policies).

Download PDF: COVID-19 Vaccinations and Workplace Rights: 2022 Case Law Update

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