Many growing businesses stress about hiring but give off the attitude that “Immigrants need not apply.” My name is Stuart Rudner and I see that normally the companies two biggest concerns are:
- Can we afford more staff?
- Am I hiring the right person?
From the lawyer perspective the risks include:
- A Human Rights claim
- Failing to put a strong contract in place
- Failing to make the offer conditional
- Making representations that will expose the company to liability
Human Rights in the Hiring Process
Human rights legislation protects people from discrimination in the hiring process. Most employers know that they cannot explicitly discriminate based on protected grounds; job postings that say things like “Immigrants need not apply” are few and far between. However, employers often inadvertently expose themselves to claims by acquiring information relating to a prohibited ground. For example, they might learn that a candidate is undergoing cancer treatment, or trying to have children. When they subsequently choose another candidate for perfectly legitimate reasons, the unsuccessful candidate can make an allegation that the real reason for the decision was the prohibited ground, and the onus then falls on the organization to disprove it, which can be quite difficult.
The solution: As we often say, “you don’t want to know any more than you need to”. Avoid obtaining unnecessary information, whether it comes from idle chit chat during an interview, social media, or otherwise. And, in order to defend any hiring decisions, document the reasons why candidates were or were not succesful.
The single best thing you can do to protect your rights as an employer is to have every employee sign a strong employment agreement. Every employee in Canada has a contract of employment; however, in many cases, the contract is verbal and includes many terms that are implied by law and are there for the benefit of the employee. Among others, these include the requirement to provide “reasonable notice” in the event of dismissal, which can be a tremendous cost which a well-written termination clause can dramatically reduce.
Stuart Rudner- Toronto Employment Lawyer
That said, the best-written contract will be worthless if not implemented properly. Unfortunately, many employers still have employees sign agreements when they start work, or even after. By that time, they already have a verbal agreement in place.
The best time for an employer to protect their rights is when they make an offer of employment; done properly, a contract can be used to increase flexibility while also reducing costs and obligations.
Conditional Offers & Permanent Residency
Before firming up an offer of employment, a prospective employer should ensure that the candidate is legally entitled to work in Canada, and conduct any background or reference checks that would be appropriate. They should not assume that this is automatic; if they want the offer to be conditional, then it should explicitly state this.
Read more: Andrew Feldstein- Toronto Family Lawyer
While employers can require that a candidate is legally entitled to work in Canada, they cannot ask where they are from, and they cannot insist that the candidate be eligible to work in Canada on a permanent basis. This was confirmed in Haseeb v Imperial Oil Limited, in which the Tribunal found that a permanence requirement was discriminatory on the ground of citizenship. Candidates who have work visas and permits which allow them to work in Canada on a non-permanent basis should be given due consideration for available positions.
Misrepresentation and Inducement
If you induce someone to leave secure employment in order to join your organization, and/or you mislead someone about the position available, their career prospects, compensation, or otherwise, you risk exposing the company to additional liability. First, inducement is a factor that will increase an employee’s entitlement to severance – though this can be neutralized by using an effective termination clause in an enforceable contract. Second, misrepresentations can be relied upon to bring an action against the employer.
The Bottom Line
The hiring process can be a legal minefield. However, through proper policies, procedures, and contracts, employers can protect themselves.
The employment laws in Canada are drafted for the primary purpose of protecting employees. Employers need to understand their rights and obligations so that they can make informed, strategic decisions. We help them to do so.
Author: Stuart Rudner
Founding Partner, Rudner Law
If you enjoyed Stuart Rudner’s article and you need to reach out to a employment lawyer or immigration law, please reach out to our law firm toll free 844-466-6529