Bridging the counsel-HR divide
Early co-operation beats late damage control By Michael Benedict
Employment lawyer Will Cas- cadden says much of his work comes from a failure to communicate. “Too often, I get called in too late,” says
Cascadden, a partner with Spectrum HR
Law in Calgary. “If in-house counsel had
consulted with HR beforehand, most of
the problems they want me to deal with
would not exist.”
All the professionals agree: a posi-
tive and open relationship between a
company’s in-house counsel and human
resources department is essential to ef-
ficient operations and maintaining posi-
tive relations with employees.
Cascadden remembers one client who
retained him “too late” after it decided
to close down part of its business, throwing 200 people out of work. He recalls:
“They had decided to shut the place
down some 18 months in advance, but
didn’t want to tell the employees because
management feared the workers would
leave well in advance of the shutdown.
If that had happened, the company
wouldn’t have been able to operate the
facility right to the very end.
“On December 17, they told the employees about the closure and that their
last day of work would be on the 23rd.
Then, they called me in to develop a
severance package. When I pointed out
that the law requires eight weeks’ notice
as well as advance government notifica-
tion, the client said: ‘Fix it.’
“Somehow, they had the idea that
proper advance notice wasn’t required
because they were providing severance.
They were wrong. As a result, they had
to keep the operation open much longer
than they intended — at a great cost.
“If the HR people had been brought in
on the decision-making, the first thing
they would have said is that you can’t
dismiss people two days before Christ-
mas. And then they would have warned
senior management about the notifica-
tion requirement.”
While Cascadden acknowledges that
this is an extreme example of a com-
munications breakdown, he says more
common failures, with potentially seri-
ous legal consequences, occur during an
acquisition or merger. “These are com-
plex matters,” says Cascadden, “and
during the time they are contemplated,
negotiated and closed, often no one
turns a mind to the HR issues until the
11th hour.
“Most in-house counsel are commercial lawyers and aren’t always thinking
about HR implications. If an asset is being acquired, they need to ask, what will
happen to the new people? Will their service be recognized in the new structure?
“The same questions apply when an
operation is being shut down or sold.
The negotiators are usually concerned
with financial details and might not consider their responsibilities to both the
workers and to the government, whether
provincial or federal.
“Instead, these issues should be dealt
with during the negotiations and become
part of the deal instead of scrambling to
fix them at the last moment.”
Such problems are not likely to occur at
wireless company WIND Mobile, a mod-
el for how the in-house/HR interaction
should work. “We have a seamless relation-
ship,” says Nora Brooks, WIND’s in-house
counsel. “When I joined the company, the
first thing I did was to ensure that there
was an open line of communication with
human resources. I told the HR people
they were free to contact any of my staff,
including me, with any question.”
Brooks meets regularly with her coun-
terpart, HR vice-president Christina
