The Myth of Body Language as a Credibility Assessor

Workplace investigators and human resource professionals should be cautious of relying on the body language of a witness to evaluate their credibility during an investigation.

Fact-finding investigations, especially in cases of harassment, at times turn into an evaluation of one person’s version of events versus another’s, or as some call it, the “he said, she said” dilemma. In these cases, assessing the credibility of the two parties may be the easiest way the investigator can come to any defensible determination relative to credibility. When making a judgement on credibility, evaluating a person’s body language can be tempting and is often supported by many human resource professionals and workplace investigators in Canada. However, the empirical research shows that relying on body language is not a helpful method for evaluating credibility.

To clarify, body language, in the context of this article, includes both verbal cues (speech hesitations, stuttering, voice pitch, and inflections) and non-verbal cues (no eye contact or eye movement in certain directions, fidgeting, and overall nervousness).

What does the research say?

Body language is often referred to in investigation reports when credibility is being determined by the investigator. However, the link between honesty/dishonesty and body language is tenuous. Meta-analyses and experimental studies in the field of deception detection found that neither verbal nor non-verbal cues act as reliable predictors of deception. In other words, there is no conclusive evidence to warrant investigators relying on body language when making judgements on a person’s credibility.

Specifically, Bond and DePaulo (2006) conducted a meta-analysis regarding body language as a predictor of deceitful behaviour and found no relation between the two. In a separate meta-analysis conducted by Sporer and Schwandt (2007), twelve observable behaviours, including eye blinking, gaze aversion, postural shifts, hand movements, etc., were reviewed, and none were found to be correlated with deception. Three additional studies conducted by Wiseman et al. (2012) evaluated whether eye movement is a useful predictor of lying, with all three concluding it was not a useful predictor at all.

Lastly, in the book Talking to Strangers (2019), author Malcolm Gladwell concludes we are not skilled at “reading” others. He quotes a study based on over 550,000 arraignment hearings in New York City between 2008 and 2013. Of these 550,000 hearings, New York City judges released slightly more than 400,000 defendants on bail. A computer program released 400,000 defendants based on the same information that the judges had, including the defendant’s record, age, and what happened the last time the defendant was released. This study pitted man against machine – who would make the better decisions?

Interestingly, the defendants that the computer released were 25% less likely to commit another criminal offense while on bail than those actually released by the judges. The one difference was the judges saw the defendants and factored their impression of the defendants into their decision making. This result is significant and further supports the conclusion that we lack the skills necessary to accurately “read” another person’s body language.

The above studies indicate that body language is not a reliable predictor of honesty/ dishonesty and cannot be relied on to determine the credibility of a witness in a workplace investigation. Non-verbal cues such as eye contact, foot movement, and fidgeting and verbal cues such as speech errors and longer response times do not hold up as indicators of deception.

Why is this research important?

Research shows that relying on body language to assess credibility can be a flawed approach and that body language provides no greater predictive power of honesty/dishonesty than chance. When interviewing a person whose body language suggests that they are being dishonest, ask yourself, where is that assumption coming from? Is dishonesty the best explanation for their behaviour or are other factors at play?

There can be many reasons for certain body language to appear from a witness during a workplace investigation, but why does it appear? Most Canadians will not be involved in a workplace investigation during the course of their careers. When someone finds themselves involved in one, it is only natural for them to be nervous or fearful of the process. This anxiety about the investigative process may explain why some witnesses may appear less than truthful to the investigator when what they actually are is nervous.

Conclusion

It is tempting to believe we can tell when someone is not being honest. We sometimes infer the dissonance in their mind must be somehow reflected in their body. The reality is simpler yet more inconvenient: It is difficult to determine what other people are thinking, and there is little we can do to change this. Workplace investigators are, therefore, charged with sorting through the ambiguity to come to a well-reasoned assessment of the facts.

Relying on an evidence-based practice is paramount to building defensible conclusions. For reliable predictors of honesty/dishonesty, look to more concrete factors such as the following:

Determining the Plausibility of the Witness’s Story
Does the version of events offered by the witness make sense? Does the story “hang together” given the circumstances surrounding the event that they describe? Is the story consistent with what a reasonable person would see as normal in that situation?

Does the Witness have Motive?
Does the witness have any motivation for the investigator to believe their version of events? Are they motivated to lie to the investigator? Typically, if a witness has no motivation to lie about their story, they are likely more reliable.

Can the Witness’s Story be Corroborated?
Is the witness’s version of events corroborated by others? Is the witness’s story coherent with the versions offered by others interviewed? Having corroborating evidence is powerful and can go a long way in determining a witness’s credibility.

What is the Past Record of the Witness?
Reviewing the past record of a witness can be a helpful way to assess the possibility that the witness may attempt to mislead the investigator. This may include reviewing the witness’s disciplinary record for situations where their credibility may have been called into question.

In the final analysis, the evidence is clear – we must not rely on body language to assess credibility. Rather, workplace investigators must be diligent and earnest in relying on facts over feelings, beware of our biases, and to be ready to challenge our assumptions about people.

About the Author

Devan Corrigan
Devan J. Corrigan is the Founder and Principal of Corrigan HR Consulting which provides consultancy services in the area of human resources and labour relations. He is often called upon to conduct workplace investigations in both the provincial and federal jurisdictions. Devan holds an Honours degree in Psychology from Saint Mary’s University and a Master of Industrial Relations from Queen’s University.

 

 

References

Bond, C.F., & DePaulo, B.M. (2006). Accuracy of deception judgements. Personality and Social Psychology Review, 10(3), 214–234.

Gladwell, M. (2019). Talking to strangers: What we should know about the people we don’t know. Little, Brown and Company.Sporer,

S.L., & Schwandt, B. (2007). Moderators of nonverbal indicators of deception: A meta-analytic synthesis. Psychology, Public Policy, and Law, 13(1), 1–34.

Wiseman, R., Watt, C., ten Brinke, L., Porter, S., Couper, S. L., et al. (2012). The eyes don’t have it: Lie detection and neuro-linguistic programming. PLOS One, 7(7), e40259. doi: 10.1371/journal.pone.0040259

 

Best Practices for Returning to the Workplace

There are many unanswered questions about Canadian workplaces as we look toward reopening offices. The well-established principles and guidelines that employers, unions and employees have followed for many years will certainly help navigate this process. That said, this pandemic takes us into new and uniquely uncharted waters that may well shift some or all of these principles as we move forward. This article will look at the frameworks in place today, as well as best practices for boldly going where few workplaces have gone before.

Management Rights

An important principle is the idea of management rights, in both union and non-union workplaces. Following this principle, employers, for example, have the right to determine work location – remote, in-office, or a mix. In most collective agreements, for example, the management rights clause typically allows management to set all aspects of the work and workplace, unless specific language has been negotiated in the collective agreement. In non-union workplaces, this right can only be constrained by language in individual employment contracts.

This is, of course, not a blanket right – employers cannot violate employment standards legislation or labour laws, nor use this right in any way that is arbitrary, discriminatory, or done in bad faith. Practically speaking, however, if the employer decides they want the workforce to return from remote work to working in the office, they have a right to this.

It would be a mistake, however, for employers to focus too heavily on these rights as a way to make effective decisions for the organization. As a famous saying goes, “Just because you have the right to do something does not make it the right thing to do.” In addition, this right comes along with some significant obligations.

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Embracing Emotions in the Workplace

During one of our Strategies for Workplace Conflicts programs, a participant commented that she told her staff that she didn’t “DO emotion!” I really appreciated her forthright statement which led to a valuable discussion about the place of emotion in the workplace. How do we handle the expression of emotion? Are emotions welcome or not? How do we handle an emotional outburst in a meeting or deal with strong negative emotions between two co-workers in conflict? How do we deal with our own emotions?

Emotions are part of being human. We are wired to feel. Many of us are not in close touch with our feelings, often because of our upbringing. Are you familiar with the phrase “if you don’t have anything nice to say, don’t say anything at all!”? Emotions can spring up suddenly and may pass just as quickly. Yet, if they are not dealt with, they may fester and intensify.

Consider your workplaces during the pandemic. Can you name some of the emotions that you are experiencing? What about your employees or team members? I’m guessing that fear, frustration, loneliness, grief, and exhaustion may be present. There may also be some positive emotions such as relief (from avoiding long commutes for example).

In this article I’m suggesting something that may seem counter intuitive. Rather than avoiding or squelching the expression of these emotions, try leaning in and welcoming them into your workplace.

Download PDF: Embracing Emotions in the Workplace

Reducing Participant Stress Before a Workplace Investigation

Reducing Participant Stress Before a Workplace Investigation It is normal for participants in a workplace investigation to feel some anxiety, but too much worrying can create barriers to obtaining critical information, which is a challenge for investigators looking to build complete and thorough reports.

Ensuring participants fully understand the process and their role in it can help alleviate unnecessary anxiety during the investigation. With a greater understanding of the process, participants can feel empowered to speak confidently in the interview and provide the investigator with the necessary information.

Where does this anxiety come from?

Participating in an investigation can be stressful. Most people do not have the experience of participating in a workplace investigation and simply do not know what to expect. Without a proper understanding to put their interview in the larger context of the investigation, participants could engage in counterproductive and unhelpful behaviours. They may fear scrutiny falling on their own actions or the consequences of sharing their knowledge of an incident with the investigator. They may feel they have no control over the process and be less than cooperative. They may, intentionally or not, withhold critical information. Some may even refuse to engage in the investigative process at all. All these behaviours act against the goal of uncovering the relevant details of a workplace incident.

These behaviours do not make a participant deceitful but rather it stems from a survival instinct and is linked to the fight or flight response, a mechanism that enables individuals to react quickly to a threat by either facing the threat directly or disengaging it by escaping to a safe place. Viewed in this light, becoming adversarial in an interview or refusing to participate can be seen as rational responses to stress, even if such behaviours are unwarranted. Ultimately, the investigator wants to curb these kinds of emotional reactions from participants’ as they will not be conducive to the investigation.

The investigator must reduce the imagined “threat” in the mind of the participant before conducting the interview. Luckily, there are practical solutions to alleviate anxiety before interviews which will result in a better outcome. This article will provide some tools that will allow the investigator to eliminate some of the unnecessary pressure felt by the participants. This should result in higher-quality interviews.

Although no investigation process is stress-free, ensuring participants understand the process ahead of their interview can greatly reduce their stress. It is clear that some participants like the Complainant and Respondent in a case will likely receive more information than witnesses, but providing information about the investigation to all participants will generally be helpful for the investigator and to the overall process.

Using the following two-step process before conducting an interview will benefit both the investigator and the participants of the investigation.

Step 1 – Introductory Letter or Email

Send a well-crafted letter or email to the complainant(s), the respondent(s), and any witnesses (i.e. all participants).  The letter or email should include the following:

  • the mandate of the investigation,
  • the role of the participant in the investigation (are they the complainant, the respondent or a witness)
  • the expectation of maintaining confidentiality throughout the process,
  • the time and place of the interview with the participant, and
  • request for a pre-interview phone call.

Outlining the process of the investigation in writing from the start will reduce participants’ anxiety level.

Step 2 – Pre-interview phone call

This step is significant in decreasing anxiety of participants involved in the investigation. The pre-interview phone call allows the investigator to provide further details, including introducing themselves, the mandate, and explaining the investigative process in more detail.  This call also provides the participant a chance to ask questions about what is expected of them during the process.  Having this take place ahead of the interview establishes rapport between the investigator and the participant early on and it also humanizes the process. In this phone call, the following issues should be addressed in more depth:

1. Introduction of the investigator

It is important to explain that this call is not the actual interview, but serves as an opportunity for introductions between the investigator and the participant. The investigator should explain that the interview will take place at a later date, and most likely in person. Information provided to the participant can include the professional and educational background of the investigator, the investigator’s role as a neutral third party, and the expectation of the participant to provide truthful answers during the interview.

2. Explain the mandate in general terms

Explaining the mandate during the pre-interview phone call is critical.  If participants understand the purpose of the investigation, they will be able to identify what information is relevant to the matter at hand. This gives the participants confidence ahead of the interview and it helps the investigator as well, since the participant will think more critically about the information that is required.

3. Explain why the organization is investigating the matter

Participants can often be critical of the reasons why organizations conduct investigations in the first place. During this call, the investigator can explain that organizations have a legal obligation to investigate alleged instances of harassment, discrimination, and violence in the workplace, pursuant to legislation in most Canadian jurisdictions. To allay any further skepticism about the investigation, the investigator can also explain that workplace investigations are ultimately conducted with a hope to correct some workplace problem that exists. Again, this explanation should help the participant to understand the process and reduce some stress.

4. Explain what to expect with the investigative interview

Participants often fear the interview, and in particular, the questions that will be asked by the investigator. The investigator should explain that the participants will be asked questions in good faith and will be expected to provide truthful responses. It might also be helpful for the investigator to explain that they will not be trying to “trip up” the participant or trick them with difficult questions. It is important to note that the investigator is not interested in being deceptive but is interested in getting to the truth. Tricks and traps are counter-intuitive to this end. Explaining this to the participant will go a long way in establishing a level of trust prior to the interview.

5. Reconfirm the importance of confidentiality

This might be the most important part of the call with the participant as it is vital the investigator gets commitment from the participant to maintain confidentiality throughout the process. The investigator should relay that ensuring confidentiality protects the integrity of the investigative process. Participants should also be advised that if confidentiality is breached and information leaked to other employees, the entire investigation may be compromised. Depending on the organization’s policy or process, a breach of confidentiality could also result in a disciplinary penalty to the participant culpable of that action

Conclusion

The interview of participants is critical to producing a high-quality investigation. The accuracy and completeness of the information provided by participants during an interview can be skewed, or even incomplete, when participants experience stress and anxiety about the process. This negatively impacts the legitimacy of the investigation. The two-step process outlined above will go a long way to reducing participant anxiety by building rapport and trust between investigator and participant, resulting in higher quality interviews and a more complete investigation.

 

About the Author

Devan CorriganDevan J. Corrigan is the Founder and Principal of Corrigan HR Consulting which provides consultancy services in the area of human resources and labour relations. He specializes in conducting workplace investigations in both the provincial and federal jurisdictions. Devan holds an Honours degree in Psychology from Saint Mary’s University and a Master of Industrial Relations from Queen’s University.

Evidence Collection: Practical Tips for Workplace Investigations

 Practical Tips for Workplace InvestigationsOverview

Workplace investigations have become commonplace across Canada. Many Canadian jurisdictions require that employers implement workplace harassment and discrimination policies, which often include mandatory investigation provisions. Whether or not investigations are legally mandated, it is sound practice for an employer to conduct an investigation when there may be potential workplace harassment, human rights violations, breach of company policy, criminal activity, security breaches, legal action, or media scrutiny.

A fair and reasonable investigation can provide a defense for employers to assist in future litigation and/or human rights complaints.[1] Beyond legalities, investigations can also assist employers in identifying and resolving workplace issues, helping them to create a more productive and healthy working environment. For all of these reasons, workplace investigations provide an important function in today’s workplace. However, an investigation will only be useful if it is conducted in a fair and reasonable way.

Collecting the evidence is a fundamental step in conducting a fair investigation. Evidence may include witness statements, video surveillance, supporting documents (emails, letters, phone records, time sheets, text messages, photographs) and any other useful information regarding the relevant issues. While many witnesses may participate in good faith, people’s memories are not always reliable, and co-workers may share stories before an interview which could taint recollections. Further, not all witnesses will participate in good faith, resulting in dishonest and/or inaccurate witness statements on some occasions. Because of witness unreliability, workplace investigators should adequately instruct witnesses on confidentiality, while also making best efforts to collect and to preserve supporting documents when available. Following proper processes will assist investigators in ensuring that they have meet the good faith standard as required to conduct and complete workplace investigations. This article will highlight important considerations in collecting and preserving evidence when conducting a workplace investigation.

[1] See for instance: Morgan v. University of Waterloo, 2013 HRTO 1644 (CanLII) where the HRTO held that the university’s response to the complaint was “reasonable” and that the university had met its duty to investigate the circumstances; therefore, the award for damages came from the individual respondent only (and not the university). In this regard, a reasonable response and proper investigation can vitiate liability even in a circumstance where there is a finding that workplace harassment occurred.

Creating Kinder, More Productive Workplaces: Ongoing and Everyday Conflict Engagement

 Ongoing and Everyday Conflict EngagementConflict is tough for most of us. According to many physiologists, we tend to tap into several simple strategies when faced with conflict: fight, flight, or freeze. As a result, we likely aren’t reducing unnecessary conflicts, and effectively dealing with necessary conflicts in productive ways. So many opportunities are lost because we aren’t engaging well. Being effective at conflict, both in a proactive and reactive way, demands that we work at it as an ongoing and everyday activity. In essence, it is a lifestyle choice in how we talk, problem solve, inquire with others, and arrange our processes and teams.

There are a number of choices, activities, and strategies that can be used to enhance your organization’s ability to handle conflict in a better way. The following are just a few:

  1. Hold People Accountable for Negative Behaviors and Celebrate Positive Behaviors
    In working with organizations and leaders in many fields, I have found a few common missteps in conflict. One is the mishandling or lack of dealing with toxic people in our workplaces. They often get passes because they are good at their jobs or they are retiring soon, among various other reasons. The trouble is that they are doing grave damage to our teams and they also are setting a norm that bad behavior is allowed. Ultimately, we create workplace monsters by allowing the negative behaviors. Therefore, skills are needed to hold people responsible and foster realistic change.Additionally though, we also must praise those team members who collaborate, share work, ask questions, are kind and gracious to their peers, and participate in a culture of radical candor (the topic of an outstanding book by Kim Scott). It can be as simple as saying “thank you” for asking a question or providing well-informed constructive feedback. It may include features of a performance review and therefore financial incentives for sharing work and helping others with work. The key is to celebrate those times when people are exhibiting positive conflict behaviors.
  2. Ask More Questions. Ask Better Questions
    Experiences in our youth do little to promote the use of questions as a leadership tool. Therefore, it can be difficult to ask thoughtful and strategic questions “on the spot” when we are struggling with problems. Questions are such an important tool in conflict and any problem-solving activities. They lead to better problem identification and therefore more robust problem solving and even relationship building. People feel honoured, trusted, and included when they are involved via good questions and responses.Brainfishing: A Practice Guide to Asking Questions by Gary Furlong and Jim Harrison, is a particularly helpful book that provides tools for improving the strategic and relationship-building use of questions. It provides ideas and steps for improving how you ask questions. First though we must disregard any natural tendencies to think that asking questions is a sign of weakness or dimness. We need to admit we don’t understand or that we need to understand more deeply. This leads to curiosity, which can lead to better outcomes for the people on our teams and on our projects. Just think about the last time you asked someone a genuine question. I imagine that thoughtfulness on your part led to a great discussion and an enriched relationship.
  3. Involve People Strategically
    The pendulum can swing really far when it comes to collaborative decision making and processes. Some organizations have embraced the principles of collaboration and yet they aren’t using it strategically enough. Signs of this include: people speaking disparagingly about meetings, people not implementing plans and decisions, and process fatigue (“Are we ever going to get anything done?”). Great leaders are thoughtful about the when, how, and who of inclusion. I liken it driving a stick shift; it takes practice and you have to push, release, and shift at the right moment for the transition to be smooth. The parts need to be moving together in a coordinated fashion at the right moments.It is important to ask people how and when they want to be involved, and then respond when you can’t meet those needs and include them in the ways they want when possible. Additionally, team members need to advocate for themselves and their peers when they need to be included in an important plan or project decision. People don’t need deep involvement in each and every step typically, yet we need to consider how we involve them in order to provide the opportunity for their voices to be heard and our processes and final products to be that much better.
  4. Provide for Various and Dynamic Conflict Modes
    Conflict competent teams are part of conflict competent organizations, meaning that every person in the system has some degree of conflict-engagement skills and there are clear avenues for handling conflict. The modes have to work for the people in the system. Some systems include online features, clear policies and processes, more ongoing and consistent performance review channels, training workshops, committees/boards, purposeful interpersonal interactions, policy/procedure reviews, one-on-one conversations, coaching, formal processes (e.g. mediation), and disciplinary processes. By no means is this list exhaustive but it gives a sense of the many moving parts of a conflict competent organization.Identifying the appropriate modes for any organization involves steps; talking with people to identify the right ways of handling conflict, designing how these processes will operate in your organization, building awareness around the modes, experimenting with the modes, correcting any inadequacies, and evaluating in an ongoing way are just some of the steps. These steps can take time and may need outside help, but they are invaluable in having a conflict competent organization.

In order to do all of the above, there is a fundamental characteristic of the organization and it is to:

  1. Gain Executive-level Support for a Collaborative Culture
    It is entirely possible for a team in an organization to do #1-4 in an organization that doesn’t, but they are limited by their surroundings, policies, norms, and executive leadership that foster those surroundings, policies, and norms. In order for conflict competency and collaboration to occur in every team and in every meeting, disciplinary process, and strategic planning session, the executive team must support the principles and build and use the skills themselves. This doesn’t mean simply setting policies and changing the hierarchical structure. It means diving deep into the organizational culture in order to create new systems, structures, and therefore relationships. Too often, this isn’t the starting point but it should be.

The “why” of this is important. People are demanding this type of interaction in their workplaces, communities, and other team-oriented activities more. This is particularly true of our emerging generations. Each of these helps people to feel more connected to their employers and fellow team members. Rather than mistreating one another over unnecessary conflict, coworkers can work alongside each other while also engaging in problem solving (i.e. conflict resolution) in a more robust way. People can start solving the problem that their organization is having. Numbers 1-4, in particular, provide a clearer path to helping our workplaces become kinder, more collegial spaces. Work can be tough at times, often because of how we interact with our colleagues. It is so much better to work in an environment in which there is the expectation that we are supportive, collaborative, and kind to one another through even the most difficult of times. This frees our time at work to be more productive and doing so in a collaborative and supportive way.

 

About the Author

Joan Sabott

Joan is a facilitator for the Queen’s IRC Strategies for Workplace Conflicts program. Joan Sabott is a practitioner, consultant, trainer, teacher, and coach in conflict engagement and resolution. Currently, she is an adjunct faculty at Creighton University in Omaha, NE, USA, on leadership and conflict.  Joan is an Affiliated Practitioner and former Senior Program Manager with The Langdon Group. She has consulted on various projects in the organizational sector for businesses and public agencies, and on environmental projects in the substantive areas of water, transportation, and land use and planning.  From one day (or hour) to the next, she is mediating, facilitating, coaching, advocating and providing impromptu training sessions on conflict-related topics. Joan holds a B.S.B.A. in History, a Certificate in Secondary Education, and a Masters in Negotiation and Dispute Resolution, all from Creighton University.

 

If you are interested in custom training on this topic, please contact Cathy Sheldrick at cathy.sheldrick@queensu.ca.

 

References

Furlong, G. T., & Harrison, J. (2018). Brainfishing: a practice guide to questioning skills. Place of publication not identified: FriesenPress.

Scott, K. (2019). Radical candor: be a kick-ass boss without losing your humanity. New York: St. Martins Press.

Relationship Management in a Union Environment

Relationship Management in a Union EnvironmentBuilding relationships in the workplace is hard – and it takes work. It’s even more difficult when you work in a unionized organization which has traditionally adversarial relationships. But these days, organizations like the Ontario Secondary School Teachers’ Federation (OSSTF/FEESO) are stepping away from the attitude that, as a union, you have to be in ‘fight mode’ all the time. They are working towards accomplishing more for their members by trying to have better relationships with management.

This is where the Queen’s IRC Relationship Management in a Union Environment program comes in. In January 2019, OSSTF asked Queen’s IRC Director, Stephanie Noel, to run a one-day custom training program for its new Protective Services Committee (PSC). The training focused on working towards common interests, better communication, and handling conflict in workplace relationships.

Bob Fisher, OSSTF Director of Member Protection, says that the vision for the new Protective Services Committee is that it’s a committee of experts. Committee members will give advice for central negotiating issues, but also be a resource to Local bargaining units in their day-to-day labour relations issues. The 34-member committee is made up of Local union leaders from across the province, assisted by 8 staff members.

“We used to have a provincial collective bargaining committee that just wasn’t meeting the needs of the organization,” said Kerri Ferguson, OSSTF Director of Negotiations Contract Maintenance. “It tended to be populated with grassroots members who didn’t necessarily have all of the skills and experience.”

The people who are on the new committee were chosen because they already have a certain level of expertise in negotiations, grievance arbitration, problem solving, collective agreements, contract maintenance, and education funding. And with a strong training component built in, particularly for the first year of the committee, Bob expects that members will become “better experts” at the things that they’re already experts at, and raise their level of competence in the areas where they aren’t as strong.

When Kerri and Bob sat down to decide what training they needed, one of the first things they identified was the desire for people to establish good relationships with their employer counterparts.  And then they had to decide ‘How do we get that in front of the committee?’ The first thing Bob thought of was Queen’s IRC. He was aware that Queen’s IRC did custom training, and both he and Kerri had taken Queen’s IRC labour relations courses in the past.

“Everyone in our organization who does something through Queen’s IRC acknowledges its quality,” Kerri said.  “We have never done anything like we’re doing this year in terms of spending money on quality training for this group of experts,” said Kerri.  Previously, they had mainly done internal training.

Queen’s IRC facilitator, Jim Harrison, led the relationship-building program for OSSTF. “The focus for a program like this would normally be on the front-line people who are negotiating and handling grievances,” said Jim. It’s a critical skill for them to be able to have good communication skills, understand common interests, and be able to work well with their colleagues.

“What Bob and Kerri picked up on was that building these kinds of relationship skills also improves internal relationships within the union itself – department to department, individual to individual, employee to management,” said Jim.

Being in the education business, PSC members are exposed to a great deal of professional development, Bob said. “I had a number of people come up to me after the Queen’s IRC session and tell me that it was the most meaningful, useful P.D. they have had – ever!”

Feedback from the committee members about the IRC program was overwhelmingly positive.

Betty-Jo Raddin is a Local president in the Bluewater District School Board, a Protective Services Committee member, and the Vice-Chair of the Negotiations and Implementations Sub-committee. She was able to takeaway lots of key points from the ‘questioning and listening’ section.

“I need to be able to ask the right questions and listen in order to be able to effectively problem solve the situation,” she said. “I need to know what to ask them in order to figure out, is there some way that we can come up with a resolution that could work for both of us?”

“When you’re having a discussion or disagreement and you’re not reaching a resolution on something, often I think we blame the other person instead of looking at ‘what’s the situation?’ What are the situational reasons that they’re unable to agree to what we need them to agree to?”

Betty-Jo appreciated that this training was tailored to a unionized environment because it was very applicable to her situation compared to some of the other outside training she has done.

Dave Weichel has been a chief negotiator with OSSTF for about 18 years. He is a member of the Protective Services Committee, vice chair of Contract Maintenance and Member Protection Sub-committee and still works on a day-to-day basis as a guidance counselor. Dave is in an unusual position, as most of the people who are involved in the PSC are exclusively serving as OSSTF leaders.

“As somebody who still has to deal with school board level development, the Queen’s IRC Relationship Building training was one of the best things I have ever had access to!”

Dave was impressed with the fact that the training was not only in-depth, but also interactive with great opportunities to sit down and participate. “It wasn’t just having someone talk at us for eight hours,” he said. “You really feel like you walk out of there better prepared, with a better toolkit, to go about doing what we do. It was awesome.”

The Queen’s IRC approach includes exercises that allow people to work through real life situations and practice the skills they are learning in a safe environment. While these exercises were sometimes a bit awkward for the OSSTF participants, they were excellent learning experiences.

For the Chair of the Protective Services Committee, Fatima DeJesus, the training was a good refresher on conflict resolution skills. Part of the training focused on learning to step into conflicts rather than running away from them, so you are able to resolve them before they blow up into something bigger.

Fatima is also the president of an educational support staff bargaining unit and early childhood educators bargaining unit. The training made her think about what the other side is feeling and thinking about, which she acknowledges, is something that you often forget. “You’re very focused on what you want as the Local leader, and what’s important to you, but you sometimes lose sight of what’s important to the other side,” she said. “The room was full of experts, but it was quite interesting to hear that a lot of people didn’t always think about what the other side was thinking.”

The questioning and listening section also stood out for Fatima. “I’ve learned to ask the open-ended questions, and I’ll be honest with you, I’ve learned to shut up a little bit and listen a little bit better too!”

Fatima echoes what the post-program evaluations revealed: “It was amazing training. I would have to honestly say probably one of the best training sessions I’ve ever had. If anyone is even considering doing this, then I would absolutely recommend it 100%.”

OSSTF is a union with 60,000 members, 230 job classes, 151 bargaining units and 37 districts. The bargaining units are organized by job class which includes teachers, support staff, custodial, office and clerical staff. Although this training was created for members of the PSC, it was also opened up to Local leaders.

“I sat at a table with Local people,” said Kerri Ferguson. “At my table, no one else had done Provincial office level work. All of them were thrilled with this training. It made them think in ways they’ve never thought before.” Kerri said her tablemates were already planning to use the techniques they were learning as soon as they returned to the office.

Kerri enjoyed the mixture of speaking, writing, thinking and table exercises. “For me personally, I think it validated and gave some language to what I’ve always believed and been trying to do.” It opened her eyes to the fact that things that come naturally to some people don’t necessarily come naturally to others. “I’ve learned what needs to be explained to people (which I just didn’t think needed to be explained) and I have the words to do it.”

Kerri and Bob are full of praise for facilitator Jim Harrison and Queen’s IRC. “Jim was a very dynamic presenter – he went for the entire day and never seemed to lose energy,” said Kerri.

“There was lots of really good material to chew on, and he presented it in a way that kept everybody engaged,” Bob said. “I just can’t say enough about how pleased I am with the way he operates … Of course, I’ve come to expect that from Queen’s IRC.”

As someone who has attended previous Queen’s IRC programs, Bob said he is always impressed with the quality of the training, and this custom session was no exception. “I’m really pleased with the way it went.”

 

For more information on custom training, please visit our website at https://irc.queensu.ca/customized-training  or contact Cathy Sheldrick at cathy.sheldrick@queensu.ca.

The Performance Appraisal Process: Lessons Learned

 Lessons Learned

Just as leadership styles and organizational work have evolved, so have perspectives on performance evaluation. Traditional performance evaluation is hierarchical, control-oriented, and focused on individual ranking and grading. Present-day performance evaluation is relational, facilitative, and focused on development and problem-solving (Leadership, R. Lussier, et al).

In Ontario, teacher performance appraisal requirements and processes are legislated. While the legislation is founded on a more traditional “three strikes you are out” mandate, the philosophy and practices are more contemporary. They are “designed to provide meaningful appraisals of teachers’ performance that encourage professional learning and growth; identify opportunities for additional support where required; and provide a measure of accountability to the public” (Education Act, Part X.2, Regulation 98/02, Reg 99/02).

Two recent arbitral awards regarding teacher performance appraisal in Ontario provide insight regarding best practices for strategic leaders in modern organizational work environments. A review of the Gusita award (OSSTF vs. TDSB, 2011) and the Tait award (OSSTF vs TLDSB, 2018) will highlight the arbitral standards that must be met, the essential features of performance appraisal to meet those standards, and lessons learned.

Conflict Coaching in the Workplace

It is common for employees to seek help from their manager if they are experiencing conflict or relationship challenges in the workplace.  What are your options as a manager to respond in a way that provides benefits to the employee, to the workplace as a whole and to you?  Consider this scenario:

You are Karen’s manager:

  • Karen is a longtime front line employee in the Hamilton branch and has recently taken a promotion as a front line manager, overseeing 20 full and part-time staff in the same location.
  • Karen asks you for a meeting to discuss how to handle “a problem employee”, Frank.
  • She explains that Frank has been resisting the improvements she has been implementing in the location’s workflows.  She worked there so long she knows all the changes that need to be made and began making them as soon as she became manager.
  • Karen explained that staff resistance has forced her to “manage them tightly”.
  • You have recently received complaints from three of Karen’s staff alleging that she was micromanaging, stifling creativity and allowing them no voice in the change management process.

How would you handle this meeting with Karen?

It seems to you that she is looking for you to step in or at least to give her the answer to her difficulties.  Like many of us, your first inclination might be to jump in and give Karen suggestions, advice or recommendations or even directions about what she should do.  After all, isn’t that what she is asking you for?  And don’t we feel pleased that she has enough respect for us and our experience that she asks for our advice and direction?

In this moment you have a choice.  You can provide advice or direction or you could do something different.  But what?

Advice-giving might be appropriate in some situations, perhaps when it is a simple request, an emergency situation or some decisive action is needed immediately.

But I suggest that there are risks and potentially significant downsides (to you, the employee and the workplace) to taking that approach in every situation without further exploration.  In particular, there is a risk to the employee’s future growth and a risk to your time and role as manager.

What is a viable alternative?

Rather than giving Karen “the answer”, it is worthwhile to start by taking some time to reflect more deeply on the situation.  Karen is a new manager.  She has the difficult task of trying to manage people who were once her peers.  This is likely an ongoing challenge rather than a one-off situation. Is this an opportunity for Karen to learn and grow?  If so, how can you best support her in that learning?

Perhaps you could try a conflict coaching approach.

What is conflict coaching?

Conflict coaching is a relatively new type of coaching and my primary source of inspiration has been Cinnie Noble.[1]  She is a pioneer of the process she calls conflict management coaching (also known as conflict coaching). She explains that conflict coaching was developed on the foundation of three pillars: professional coaching, alternative dispute resolution and neuroscience. She developed her model in 1999, recognizing that workplace (and other) interpersonal disputes are not always about “issues” but can be triggered by how people interact with each other. People are looking for a one-on-one service model to help them manage disputes independently – with increased skill and confidence. A basic framework for conflict coaching starts with the client identifying his or her goal. By using a process of inquiry and other methods, coaches help clients to increase their level of awareness, shift their perspectives and focus on ways to achieve their objectives.[2]

Conflict coaching is one of many conflict management tools premised on the fact that conflict is normal and inevitable and provides an opportunity to improve relationships, prevent unnecessary escalation of conflicts, contribute to the overall health and well-being of workplaces, and reduce the costs of ill-managed conflict.  Conflict coaching has many advantages for managers as well as employees.[3]  The one-on-one approach helps to make employees feel valued and appreciated and encourages them to engage more in their own career.[4]

You don’t have to be a professional coach to provide your employee with effective coaching.  But you do need to learn how to take a new approach when she comes for help.

How is conflict coaching different?

Conflict coaching is based on a number of important principles, practices and skills, including a number which focus on the “empowerment” of the person being coached:[5]

  1. The employee is willing to participate
  2. The employee’s self-determination is vital
  3. The employee is the expert in their own life
  4. The coach/manager walks alongside not in front
  5. The employee has the capacity to change the quality of her interactions with others
  6. The process is tailored to the employee’s individual goals and definitions of success
  7. The coach asks, rather than tells, using powerful questions
  8. The coach focuses on the employee’s strengths rather than weaknesses
  9. The coach helps the employee to learn from both failure & success

Just what does employee “empowerment” mean in this context?

You may remember the old saying:  “Give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime.”

Advice-giving or direction is like giving the man the fish.  Coaching is more like teaching the man to fish.  It can lead to increased personal capacity, which in the long run, will save you time and frustration and encourage a healthier workplace.

For many people this approach feels unfamiliar, perhaps even frustrating.  Perhaps you believe that you know the “right” answer and that it would just be quicker to tell your employee what to do!

Coaching, however, asks you to hold back from advice-giving as long as the employee is still learning.  That might take quite a bit of self-control.

Empowerment means primarily inquiring rather than telling.  It means that the coach focuses on asking powerful, probing questions to help the employee set reasonable goals, to dig deeply to discover the answer for herself and then to develop a plan.  This process probably takes a series of meetings over a period of time in order to allow the employee to try things, discuss how it went and make adjustments as needed.

My daughter took a coaching course recently and after about three weeks came to me to express her dismay.  She wanted to become a coach because she felt that she had significant experience and insight that she wanted to share to assist her clients move forward.  The course was encouraging her to hold back on sharing that advice and experience and, instead, use questions to help her client discover insights for themselves.  Initially, she found that very counter-intuitive and frustrating.  However, at the end of the course which involved significant role-play and feedback, she recognized the real benefit of this approach.  She realized that it is actually consistent with her core belief that her clients have it within themselves to handle the conflict or challenge they are facing.  They just need help to access that strength.

Coaching can be a difficult transition for managers.  At first it seems like it takes so much effort and there just isn’t time in the day!

However, if the goal is the employee’s learning and growth (and the overall well-being of the workplace), to do otherwise is to over-function, inhibit learning and create dependence and resentment.

Over-functioning parents create under-functioning children.  Telling (rather than asking) can seriously impede the maturation of kids.  It is the same in the workplace.

Bill Bullard says:[6]

Opinion is really the lowest form of human knowledge.  It requires no accountability, no understanding.  The highest form of knowledge… is empathy, for it requires us to suspend our egos and live in another’s world.  It requires profound purpose-larger-than-the-self kind of understanding.”

If you immediately tell Karen what to do, or explain what you would do in this situation, what are the chances that she will be back again with the same kinds of problems in the future?  Ultimately, you want her to learn how to be an excellent manager so she can resolve conflict in her team directly and model good conflict management skills.

Using conflict coaching

So what would a conflict coaching process look like in this scenario?[7]

Let’s assume you have a good working relationship with Karen (if you don’t, you will probably need to work on that first in order to provide helpful coaching).  During the first meeting, you can focus on asking questions that help Karen to explore the situation such as:

  • What happened? [encourage Karen to articulate what is really on her mind]
  • What does “resistance” from your staff look like?
  • What is your response to those actions?
  • What is the challenge for you arising from all of this?  [encourage Karen to identify what is really important]
  • What do you want to accomplish?  [encourage Karen to set her own goal]

Then consider exploring some deeper explanations for the resistance, including:

  • What arises for you when you feel resistance?  [help her to identify her own reactions, feelings, fears etc.]
  • What might be underlying those responses from your staff?  [help Karen to see the situation from other perspectives]
  • What would be an ideal outcome here?

Finally, encourage Karen to develop some options for moving ahead.  Remember that, usually, Karen will be most likely to follow through with ideas that she has developed herself.

In developing your questions try to keep them open and avoid the “advice in disguise question” i.e. “Have you tried seeking input from your staff before implementing changes?”  This kind of question is a thinly veiled way of suggesting your favoured solution.

Many professional coaches balance client empowerment (questioning) with some advice-giving in appropriate situations.  The trick is not to go to advice or solutions too quickly without first giving the employee a chance to learn the lesson themselves.  Like most new skills, training and practice will assist you in building your own capacity for conflict coaching.  Good luck!

To learn more about conflict coaching, check out Cinnie Noble’s books (footnote 1).  And consider participating in the Queen’s IRC Strategies for Workplace Conflicts course, where you will learn and practice conflict coaching.

About the Author

Kari Boyle

Kari D. Boyle is a conflict engagement practitioner, consultant, trainer and retired lawyer. She served as Executive Director of Mediate BC Society for ten years followed by one year as its Director of Strategic Initiatives. She enjoys using her legal, mediation and management experience to improve citizens’ access to viable and affordable conflict management options in the workplace and beyond. Previously, she practiced corporate commercial litigation in Vancouver for 14 years, worked in-house for 6 years specializing in legal services management, led mediation research initiatives at UBC, and taught conflict resolution as an adjunct professor at UBC Law School. She continues to support system reform and access to justice initiatives. Kari is a facilitator for the Queen’s IRC Strategies for Workplace Conflicts program.

 

 

 

Footnotes


[1] Cinnie Noble, C.M., BSW, LL.B., LL.M. (ADR) is a chartered mediator (C.Med) and professional certified coach (PCC). She is the founder of CINERGY Coaching and the author of two coaching books: Conflict Management Coaching: The CINERGY Model (2011) and Conflict Mastery: Questions to Guide You (2014). Both are available on Amazon.ca. Cinnie’s website (www.cinergycoaching.com) has a great selection of helpful papers and articles.

[2] Taken from Frydman, R. (2015) Conflict Management Coaching in the Workplace. ADR Update Fall 2015. Retrieved February 28, 2019, from  https://www.cinergycoaching.com/wp-content/uls/2015/09/ADR_Update_Newsletter_Fall_2015_Conflict_Management_Coaching_RachelFrydman.pdf

[3]Kelleher-Flight, B. (2012). 7 Advantages of Conflict Resolution Coaching. Retrieved February 28, 2019, from https://gdpconsulting.ca/wp-content/uploads/2014/08/7-advantages-of-conflict-resolution-coaching.pdf .

[4] Maynard, J. (2019, February 12). Four Ways to Provide Individual Attention Like a Coach. Retrieved February 28, 2019, from https://leaderchat.org/2019/02/12/%ef%bb%bf4-ways-to-provide-individual-attention-like-a-coach/.

[5] Noble, C. (2011). Conflict Management Coaching: The CINERGY™ Model. Retrieved March 12, 2019, from: https://www.cinergycoaching.com/conflict-management-coaching-cinergy-model/ Amazon.ca.

[6] Bill Bullard is an American educator and this quote is taken from https://www.goodreads.com/quotes/573919-opinion-is-really-the-lowest-form-of-human-knowledge-it .

[7] Obviously, each situation is different and the following questions are only examples of how a coaching conversation might emerge.

 

Fireable Offences Without Defences

Fireable Offences Without DefencesOverview

Considering the difficulty in proving just cause, along with the potential monetary consequences for improperly alleging just cause, employers should engage in sufficient procedural steps prior to asserting just cause for termination. Such steps would likely include engaging in a thorough and fair investigative process and/or providing employees with warnings in relation to misconduct.Termination for ‘just cause’ (and without notice) is often described as the capital punishment of employment law.  Consequently, employers face a significant burden when trying to prove just cause at law. Arguing just cause for dismissal may be difficult, but not impossible, especially in circumstances involving dishonesty or lack of trust.  Nevertheless, employers should always exercise caution when making just cause allegations, because a legally unsubstantiated just cause termination can be costly. If an arbitrator overturns an employer’s termination decision in a unionized environment, this can result in a decision that reinstates that grievor and provides him or her with significant back pay. Non-unionized employees will generally not be entitled to reinstatement, although, unsubstantiated just cause allegations can be equally expensive. Canadian courts have often awarded significant additional bad faith and/or punitive damages in cases where employers create economic hardship by erroneously asserting just cause and failing to pay an employee’s notice entitlements.

Progressive discipline is one factor adjudicators consider when reviewing a just cause termination, and case-law provides that even a minor offence may justify just cause for dismissal if an employee’s disciplinary record is sufficient. Although certain types of conduct (such as theft or violence) may be more likely to warrant discharge on first offence, employers must always take a contextual approach and view mitigating factors, which may include: lengthy seniority, clean record, condonation, admission of wrongdoing and/or remorse. Further, employers should always consider whether or not there are any potential human rights considerations linked to the misconduct.  For instance, does the employee have a disability that has contributed to the conduct (such as a health condition, addiction or other mental illness)?

Employees facing allegations of misconduct should seek appropriate professional advice to understand what factors may assist in potentially saving their employment relationship (such as candour, honesty and recognition of wrongdoing during the investigation process).

This article will review various decisions upholding a just cause termination, while also canvassing the factors and considerations that impact the determination of whether or not a just cause allegation may be substantiated at law.

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