When a Spanish accountant found herself replaced by a robot, she fought back — and won
The fear of robots coming to take our jobs has made headlines for years. As automation and artificial intelligence continue to creep into the workplace, many people are worried about how their occupations will be transformed or disappear.
That’s exactly what happened to a worker in Spain recently, after an automated process replaced her position. The accounting professional was let go from her job of 13 years after the employer brought in a new computer system that made the job redundant.
But a judge ruled against this termination and said the reason given — that productivity was improved — was “not sufficient to justify the dismissal,” according to the Spanish daily newspaper El País.
Future court battle?
But could this scenario happen in Canada? Not really, according to Lisa Stam, lawyer and founder of Spring Law in Toronto.
“The idea of reinstatement doesn’t really exist — other than one little corner of a remedy in the federal level and maybe the Human Rights Tribunal — but in the normal course, you could never just reinstate someone,” she says.
“It would always be a monetary dam-age if anything; there would not be an automatic right to keep the job. You basically can fire anyone if you give them enough of a package.”
Generally, employers are able to exercise this power as long as it’s not discriminatory, says another employment lawyer.
“There’s a right to be treated fairly, there’s a right to bargain collectively, but there’s not a clear right to be employed because, otherwise, we’d have 100-per-cent employment in our country. You’re not terminating them with cause so you can pay and then basically eliminate the job,” says Mitch Frazer, a partner at Torys in Toronto.
Unionized employees in Canada are largely safeguarded against job loss due to automation, as many contracts include specific clauses for addressing that situation, says Stam, but only a minority of the Canadian workforce currently has union protection.
“Often, a collective bargaining agreement will have a technology provision where it tries to protect employees and give the union some rights in negotiating when upgrades and technology replace workers because of technology. The union will fight to protect jobs; not necessarily to stop the technology but to protect jobs and work with the employer to try and keep that redundant employee employed,” says Stam.
However, the Spanish case may provide guidance for a future court battle in this country, according to Frazer.
“I would not be surprised if it happened sooner [rather] than later because European law is a trendsetter and using those principles of that Spanish case could be extrapolated onto the Canadian impact. It wouldn’t surprise me if that case would be made because I think, as we see greater change [happen] rapidly, people will be concerned about the pace of change or being able to adapt,” he says.
“Trying to figure out what law [was transgressed], that would be the difficulty here.”
Avoiding constructive dismissal
Employers should also note that employees do have a form of protection in certain cases involving technology changing their positions, says Frazer.
“The principles that [employers] need to worry about when you’re switching a job — assuming that you want people to stay — in order to avoid constructive dismissal is you need to get either their consent or the job can’t have a fundamental change to it.”
An example is if someone works in a restaurant as wait staff and then, suddenly, the takeout portion of that restaurant’s business expands and the waiter becomes a delivery person, he says.
“That would be a different job because you’re not reporting to the same persons anymore: You’re going to the same place, but you’re doing a very different job. [The employer would] need their consent in order to change that job.”
And, during the coronavirus pandemic, many employers made changes to the workforce, says Stam.
“We’re definitely seeing employers really synthesizing their workforce. Sometimes, they’re using it as an excuse to get rid of some dead weight, but a good chunk of the time it’s a legitimate business restructuring, where they’ve now brought in some sort of automation, whether it’s an AI receptionist or whatever it might be, and really looking at out-of-date work flows [and] at whether it was necessary.”
Great tool for repetitive tasks
While change in the workforce is inevitable as technology continues to be adopted, any mass loss of jobs will not happen, according to an economist and workplace automation expert.
“In the Spanish case, it’s interesting because that person was fired specifically because of the introduction of new technology. But, oftentimes, you don’t necessarily see an entire job being destroyed because of [the] introduction of a new technology,” says Viet Vu, an economist at the Brookfield Institute for Innovation + Entrepreneurship in Toronto.
The last “wave of automation — [where] we actually saw a big job destruction impact — was in manufacturing in the ’90s, where the introduction of assembling machines, automatons [meant] you don’t actually need people assembling different parts; the machine can pick up different parts and put that together. That was really the last wave of automation in which complete jobs are destroyed,” says Vu.
“Whereas, oftentimes in these instances, there’s automation technology that is being deployed that might automate a part or a range of tasks that someone might be performing,” he says.
For repetitive tasks, AI and automation is a great tool, says Vu, because robots are good at doing only one task at a time. But written tasks such as short emails are a prime candidate for automation.
“Let’s say you just had a phone meeting or a Zoom call with someone and you just want to send them a quick note thanking them for their time and wishing them good day. Gmail has introduced this [tool] where the moment you type in your wording, it will suggest to you what the next word should be based on a lot of what other people have typed.”
But automated tools cannot replace an employee for more specialized tasks that require a human’s touch and expertise, he says.
“The email completion tool doesn’t help when you’re trying to communicate a complex or specialized idea. But in those repetitive cases where you’re just sending a quick thank you note to someone, those would be examples of the type of task in which automation technology now is very, very good at automating.”
Lessons for HR, employers
So how can HR achieve a successful transformation? Use its reach to leverage greater messaging when a workplace is being automated, says Stam.
“[It’s about] communicating the fact that it’s happening and, frankly, [that] you’re going to introduce some technology that starts to maybe encroach in privacy law areas. And you really want to be communicating and giving notice that it’s going to be rolled out — things like video surveillance, but even things like the biometric scanning to see if you have COVID or if there’s some old-school employers out there that are doing things like keystroke monitoring of remote workers — give notice of all of it because, otherwise, you can’t even rely on it as evidence if that’s the reason you’re using it in the first place.”
And don’t simply impose new auto-mating processes on workers — talk to them while it is happening, says Vu.
“One of the more important roles that HR should be playing is really understanding where the employee pain points are because — and this is most likely true if the company essentially ends up automating parts of the jobs the employees find to be frustrating or difficult themselves — they’re probably going to be quite happy with that decision. But only if the employees have been engaged from the very beginning about actually understanding and then expressing that view, because employees know their work best because they’re the ones that themselves do the work,” he says.
“HR can play a leading role in facilitating a conversation between employees and employers and creating spaces where employees can express and explain it and teach the entirety of the job and specifically identify places where automation might actually benefit from best.”
