header_people.jpg

Posts tagged: Employment Law

Can an Employer Refuse to Hire You Because You Are Not a Permanent Resident or Citizenship of Canada?

By , September 25, 2018 1:04 pm

Have you ever been denied a job interview or a position based on your citizenship status? Some employers have attempted to develop pre-employment requirements and policies to deal with the tension between devoting time and resources to new employees and hiring someone who may be temporary.

A recent decision from the Human Rights Tribunal of Ontario makes it clear that you cannot be discriminated against when applying for a job position based on your citizenship status. This is provided that you are eligible to work in Canada and that the position you are applying for does not require citizenship as a legal requirement.

Citizenship Status: Permanent, Temporary or Citizen?

In this precedent-setting decision, the Tribunal ruled in favour of an employee alleging discrimination in employment because of the pre-employment requirement that job applicants be able to work in Canada on a “permanent basis”, meaning either being citizen or a permanent resident of Canada.

Permanent residency is provided to individuals who are immigrating to Canada but are not Canadian citizens. Those with permanent residence status in Canada are citizens of other countries. Permanent resident status must be maintained or it can be lost.

A person who is in Canada temporarily is not a permanent resident. This includes foreign workers and international students, as was the situation in the decision below.

After meeting certain residency requirements, permanent residents can apply to become Canadian citizens.

Haseeb v. Imperial Oil Limited, 2018 HRTO 957

Facts

Mr. Haseeb was an international student who graduated with an engineering degree from McGill University. He applied to work for Imperial Oil Ltd during his final semester, while he was on a student visa. Upon graduation, he would become eligible for a postgraduate work permit for a fixed term of 3 years. This permit would allow Mr. Haseeb to work with any employer anywhere in Canada.

When Mr. Haseeb applied to Imperial Oil, he was aware of their policy which required graduate engineers to have either permanent residency or citizenship to be eligible for a permanent and full-time position as a Project Engineer. Mr. Haseeb repeatedly misinformed Imperial Oil throughout the recruitment process that he was eligible to work on a permanent basis in Canada.

He expected to attain permanent residency status within 3 years, after which he could settle and work in Canada indefinitely. However, at the time of recruitment, he lied and stated he met Imperial Oil’s “permanency requirement” when he knew that he did not.

Mr. Haseeb received a conditional offer of employment, with one condition being that he provide proof of his eligibility to work in Canada on a permanent basis. Imperial Oil required proof in the form of a Canadian birth certificate, Canadian citizenship certificate, or a Canadian certificate of permanent residence. Since Mr. Haseeb could not provide such proof, the job offer was revoked.

Decision

Imperial Oil unsuccessfully argued that it was Mr. Haseeb’s misrepresentations during recruitment that led to the job offer being revoked. The Tribunal found that Mr. Haseeb’s dishonesty was not relevant in assessing whether the Code was breached. The Tribunal stated that “…“but for” IO’s permanence requirement, the applicant would have no need for a ruse to circumvent the requirement.”

The adjudicator concluded that Imperial Oil’s policy of asking job applicants about their citizenship and immigration status was discriminatory based on the ground of citizenship. The eligibility of job applicants was based on their response to the question about their eligibility to work in Canada on a permanent basis, a requirement that was not necessary and linked to the essential duties of the position. For instance, Imperial Oil had occasionally hired experienced engineers in the past who did not meet their permanency requirement policy but did possess a skill set in high demand.

Further, Imperial Oil was unable to convince the adjudicator that their policy was an employment strategy that directed at grooming the best recruits.

Importance

This decision is significant because it clarifies that employers cannot exclude a job applicant based on his or her citizenship status. An employer can ask about your legal ability to work in Canada but the inquiry should stop there. This important clarification can have a positive impact if you have temporary status in Canada because gaining work experience after graduation is an important step on the path to obtaining permanent residency. However, it remains to be seen whether Imperial Oil will appeal this decision.

If you would like more information on discrimination based on your citizenship status and/or your rights in the workplace, you can contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Do I Have to Accept a Job Offer from the Purchaser of my Employer’s Business?

By , September 20, 2018 8:50 am

Ontario courts have mentioned time and time again that a terminated employee has a duty look for and accept comparable employment.

What happens when your employer is sold and the purchaser offers you employment?

A recent decision from the Ontario Superior Court of Justice provides some direction on when such an offer of employment can be rejected.

Dussault v. Imperial Oil Limited, 2018 ONSC 1168 

Mr. Dussault and Ms. Pugliese both worked in management positions for Imperial Oil Ltd. (“Imperial”). At the time of termination, Mr. Dussault had been employed for 39 years and Ms. Pugliese for 36 years.

In 2016, Imperial held a meeting where it shared plans to sell its retail business in Ontario to Mac’s Convenience Stores Inc. (“Mac’s”) and that many of its current employees would be offered jobs with Mac’s.

Both Mr. Dussault and Ms. Pugliese were offered positions with Mac’s. These offers were conditional upon both employees signing releases in favour of Imperial. The new offer stated that Mr. Dussault’s and Ms. Pugliese’s respective base salaries would remain the same for 18 months but their salary after this time was not revealed. Further, there was an explicit term where Mac’s would not recognize the decades of experience with Imperial.

If these offers of employment were accepted, Mr. Dussault and Ms. Pugliese would receive a lump-sum payment to make up for the reduction in value of their benefit plans. Imperial stated that the amount of this lump-sum payment would only be disclosed after they resigned from Imperial, accepted Mac’s job offer, and signed a release in favour of Imperial.

Both employees rejected Mac’s offer of employment as their terms of employment with Mac’s would be less favourable. Mr. Dussault was 63 years old and Ms. Pugliese was 57 years old when Imperial terminated their employment in 2016.

Decision

Justice Favreau concluded that Mr. Dussault and Ms. Pugliese did not have an obligation to accept employment from Mac’s to mitigate their damages. In coming to this conclusion, Justice Favreau first focused on the fact that Mac’s offer of employment was presented before employment with Imperial was terminated. Next, he decided it was not reasonable for the employees to accept Mac’s offers as Imperial imposed a requirement that a release be signed in order for the employees to receive their lump-sum payment. Justice Favreau viewed the requirement for the employees to surrender their right to sue Imperial as fatal.

Justice Favreau also found the requirement for the employees to accept an offer of employment that did not recognize their years of service with Imperial to be unreasonable. Finally, he found sufficient differences in Mac’s offer of employment that it was reasonable for the employees to reject the offer. Notably, there were issues surrounding a reduction in both benefits and salary.

In addition, Justice Favreau found that both employees were entitled to a whopping 26 months’ notice based on the exceptional circumstances of their respective cases.

Takeaways for Employees

  1. A terminated employee’s duty to mitigate does not require the person to accept employment with a purchaser of the business where that offer would significantly and negatively affect them going forward
  2. A requirement for employees to accept an offer of employment that fails to recognize their years of service with the former employer is likely unreasonable
  3. The timing of when the new employer offers a job is relevant; it is unreasonable to expect employees to start looking for alternative employment before they have had the chance to consider the new offer of employment

If you are being offered a new job in the context of a sale of your employer’s business, it is important to contact an employment lawyer to understand your duties and rights.

If you have questions or would like more information, you can contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

How Does Returning to School Affect an Employee’s Duty to Mitigate Losses?

By , September 13, 2018 2:33 pm

A terminated employee has a duty to mitigate his or her damages by looking for alternative employment. We are often asked questions like: Can an employee start her own business? Can he or she return to school or a retraining program? This blog addresses these questions.

The General Principle Around Returning to School

Two scholars summarized an employee’s duty  to mitigate damages in their 2001 book where they stated, A return to school does not generally satisfy the duty to mitigate unless the student remains available for work and is actively pursuing alternative employment. The critical factor, in all cases of mitigation, is that the employee behaved reasonably in attempting to mitigate his or her loss.”  [emphasis added]. This passage has since been cited by Ontario courts.

The balance of this blog discusses the application of this legal principle to two fact situations.

Case 1: Mr. Benjamin Failed to Mitigate his Damages by Returning to School

In a recent blog post, we discussed a case where an unskilled labourer made the decision to enroll in a retraining program after he was dismissed without cause. Mr. Benjamin worked for the employer for about 28 years mostly as a line operator. After being terminated, Mr. Benjamin chose to attend a full-time program to retrain as a welder. He participated in this 6-month program from August 2016 to February 2017 in order to “brush up from unskilled labour to skilled labour”.

The employer paid Mr. Benjamin the equivalent of 8 months’ salary and argued that he failed to reasonably mitigate his damages after June 2016 because he decided to start a new career as a welder and chose not to seek comparable work after enrolling in the skills program.

The judge applied the test from a leading Supreme Court of Canada case to Mr. Benjamin’s situation. The ‘test’ on the duty to mitigate in wrongful dismissal cases places the onus on the employer to establish both of the following:

  1. the employee did not take reasonable steps to seek comparable employment, and
  2. if the employee had done so, he or she could have procured such comparable employment.

In applying this test, the judge concluded that the employer met its onus and established that Mr. Benjamin failed to reasonably mitigate his losses upon termination. Specifically, the employer provided significant post-employment job search assistance to Mr. Benjamin and other terminated employees. This assistance included outplacement counselling sessions, one-on-one coaching, and providing leads to employees about jobs.

Despite this assistance, Mr. Benjamin did not apply to the two comparable jobs that his former employer informed him about and instead chose the welding program. Accordingly, it was held that there were comparable jobs available to Mr. Benjamin that he “could have” procured but he unreasonably made the decision not to apply for such comparable jobs. Therefore, it was concluded that Mr. Benjamin’s entitlement to wrongful dismissal damages ended as of the date early June 2016 ( or the latest July 2016 when the first of the available positions was filled).

Case 2: Ms. Carpenter Mitigated Her Losses Before Returning to School

In a 2016 case, Ms. Carpenter was terminated due to financial difficulties of her employer. She was terminated at the end of May 2014 and was unemployed between July 2014 to January 2015. The judge found that during this approximately 7-month period of unemployment, she applied to over 50 positions, attended 3 jobs workshops, and three networking events. In January 2015, Ms. Carpenter chose to return to school.

The trial judge concluded that based on her 6 1/2 years of employment, the appropriate notice period was 8 months. Interestingly enough, this 8 months’ notice period took Ms. Carpenter all the way up to the time she began school, in January 2015.

This case is in contrast to the one above as the judge concluded that Ms. Carpenter had made reasonable efforts to mitigate her damages before deciding to return to school. The judge held that she was entitled to 8 months’ notice, which would take her from May 2014 to January 2015, when she stopped her job search.

Since Ms. Carpenter satisfactorily mitigated her losses, the judge concluded that she should not lose any credit for the sums due to her because of her decision to leave the workforce in late-January 2015.

Conclusion

What do these contrasting decisions mean for employees? Judges consider whether an employee acts reasonably when attempting to mitigate his or her loss. The question of when returning to school is reasonable depends on a variety of factors that range from the industry to the dismissed employee’s efforts at obtaining alternative employment to the length of time the employee looks for alternative work before enrolling in a re-training program. If you are deciding to enroll in a retraining program after a termination, it is important to consult an employment lawyer to ensure that you are complying with your duty to mitigate your damages.

If you have questions about your rights regarding termination clauses and would like more information, you can contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Reviewing a Severance Package: What to Expect from an Employment Lawyer

By , March 7, 2018 12:26 pm

You have just been terminated. You have been given a week or so to accept a severance package but you don’t know if it is fair. That is where we come in.

We Tell You Whether Your Termination Package is Fair

We only do employment law and we review 100s of severance packages each year.

Before telling you whether we think your termination package is fair we will speak with you for about an hour to find out about the background to your termination so we can provide you with an informed opinion.

What Happens When You Meet with Us?

We ask you a lot of questions.

If you have been terminated without just cause then we will want to know all of the information a judge would take into account when deciding how much termination pay you are owed. If you were terminated with cause we need to discuss the alleged misconduct to assess whether the employer would likely prove just cause.

If you have signed an employment contract with a termination clause we will want to discuss the circumstances surrounding the contract. Recently judges have refused to enforce some termination clauses so we carefully review the termination clause to assess whether it is legally enforceable.

You Don’t Know What You Don’t Know

You may have additional legal claims against your former employer that you did not even consider. We understand you are not an employment lawyer and you don’t know what information is important. We do.

For example, your former employer may owe you more money as of your last day of employment than you thought possible.

Or you may be owed more money because the employer discriminated against you. Did you know that there are 16 personal characteristics that an employer cannot take into account when terminating your employment? Like your age, your gender or the fact you have a disability or a perceived disability.

If an employer treats you poorly during your employment, at the time of your termination, or after your termination then you may be entitled to additional compensation.

We Provide Peace of Mind

At the end of your consultation, we will tell you whether your severance package is fair and if not what we think would be fair. Some people find that going through this process gives them peace of mind and helps them move on with their lives.

For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising emploeers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

A No Cost Process for Claiming Damages If You Are Fired for Asserting Your Employment Rights

By , August 25, 2017 11:54 am

If you are punished for asking your employer to comply with the Employment Standards Act there is a no-cost complaint process available to you. In particular, you can file a complaint with the Ontario Ministry of Labour and an Employment Standards Officer will investigate your claim at no cost to you.

Riverdale Hospitality Inc. v. Markos Tadesse Essayas, 2017 CanLII 8340 (ON LRB) is a recent case that provides a good example of how a short-term employee earning a low wage can pursue their rights through the Ontario Ministry of Labour instead of through the courts.

The Case

Markos Essayas was an employee for Riverdale Hospitality Inc, a valet and limousine service. He was hired on October 4, 2015 as a valet driver and earned $11.25 per hour. At the time he was hired he was told that he would be a full-time employee and would work approximately 40 hours per week. In October and November Mr. Essayas asked to be paid overtime and received a cheque for overtime pay within a week of his request. However, when Mr. Essayas asked for overtime payment in December 2015, his hours began to drop. His weekly hours from October 12 to December 27 were 40, 38, 48, 48, 47, 54, 48, 37, 48, 8, and 12.  When he asked for overtime in December 2015, he only received a cheque dated January 15, 2016 which was included with his letter of termination dated January 11, 2016. Mr. Essayas argued that the last two weeks were the period of reprisal, which ultimately led to his termination.

The Decision

Section 74 of the Employment Standards Act prohibits employers from penalizing employees who ask their employer to comply with the Act. Under Section 74, there is a reverse onus clause which means the employer must prove that they did not punish the employee. In this case, the employer did not discharge its onus that it acted without reprisal. The Board rejected the employer’s explanation for the dramatic reduction in Mr. Essayas’ hours. The Board refused to accept the employer’s evidence that Mr. Essayas was not a full-time employee, that he received two disciplinary warnings, and that he intended to quit when he did not attend a mandatory training program. The Board also rejected the evidence that the employer had a “seniority list” to determine which employees would be scheduled during slower periods of business.

The Board awarded Mr. Essayas $765.00 for his wage loss (i.e what he would have earned had he been scheduled for shifts in December). They also awarded Mr. Essayas $495.00 for lost income to search for new employment and $500.00 for the breach of the reprisal provisions of the Act. The Board declined to award damages for pain and suffering.

In this case, it would not have made any economic sense for Mr. Essayas to commence a legal action as legal costs and disbursements would likely have exceeded the amount recovered.

Filing a complaint under the Employment Standards Act is not the best legal option in all cases. In some cases a better option is to commence a legal action in the courts.

If you are not sure of your legal rights and what legal options are available to you then you can speak to an employment lawyer about your case.

If you would like to speak to a lawyer at MacLeod Law Firm, you can reach us at [email protected] or 647-204-8107.

“The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

 

Panorama Theme by Themocracy