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Posts tagged: Hina Ghaus

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.

When Being Suspended Without Pay is Constructive Dismissal

By , July 25, 2018 12:24 pm

Sometimes your employer is allowed to suspend you without pay. Other times, this is a breach of your employment contract and can amount to a constructive dismissal. How can an employee know when a suspension without pay is justified?

The Ontario Court of Appeal looked at the appropriateness of an employer suspending an employee without pay in Filic v Complex Services Inc., 2018 ONCA 625

Facts

Mr. Filic worked as a Security Shift Supervisor for the appellant employer, who operated two Casinos (“the Casino”). All employees working in the Casino’s Security Department have to maintain a valid gaming registration issued by The Alcohol and Gaming Commission of Ontario (“AGCO”).

In December 2017, the AGCO informed the Casino’s Director of Security, Mr. Paris, that an audit of the Casino’s lost and found records raised some red flags. Police officers told Mr. Paris that Mr. Filic was under an ongoing investigation for theft in the workplace. In response, Mr. Paris immediately placed Mr. Filic on an investigative suspension without pay, citing Casino policies.

In January 2008, five charges were laid against Mr. Filic and the AGCO suspended his gaming registration. Accordingly, Mr. Filic could not perform his duties as a Security Shift Supervisor at the Casino. Unpredictably, all five of Mr. Filic’s charges were either withdrawn or dismissed and his criminal matter ended. His gaming registration remained suspended and Mr. Filic voluntarily surrendered this licence to the AGCO. Weeks later, Mr. Paris terminated Mr. Filic from his job because he lacked a valid gaming registration.

Mr. Filic launched an action against the appellant claiming constructive dismissal (among other things). The trial judge ruled in favour of Mr. Filic and the Court of Appeal upheld the trial judge’s conclusion that Mr. Filic was constructively dismissed.

The Test for Constructive Dismissal

The Supreme Court of Canada has outlined a test for constructive dismissal. Where there is a single act by the employer that could constitute a breach of the employment contract, the test requires a review of the specific terms of the contract of employment. This involves two steps:

  1. identify an express or implied contractual term that was breached;
  2. determine if the breach is sufficiently serious to constitute constructive dismissal.

Generally, the employee is responsible for establishing a constructive dismissal. However, the burden shifts to the employer when there is an administrative suspension. There are a lot of different factors courts consider to determine if a suspension is justified.

Mr. Filic’s Employment Contract

Mr. Filic’s employment contract (viewed as including the Casino’s policies and handbook) allowed the employer to suspend Mr. Filic as long as it continued to act reasonably. However, the contract did not have express language that stated suspension would be without pay. Although Mr. Filic’s suspension was justified, the appellant could not prove that suspension without pay was reasonable, especially at the early stages of the AGCO investigation. The court found that suspending Mr. Filic without pay in December of 2007 amounted to a constructive dismissal.

The Filic case outlines what courts will consider in deciding whether an unpaid suspension is justified. It also shows the importance of understanding your employment contract and workplace policies that affect you.

If you have been suspended without pay and would like more information on your rights, contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.

The Duty to Mitigate: What Happens to Earnings from a Lower Paying Job?

By , July 20, 2018 10:41 am

Losing your job is one of life’s awfully stressful events. Yet, Canadian courts have long recognized the duty of a dismissed employee to seek new employment to mitigate their losses.

The duty to mitigate requires wrongfully dismissed employees to take reasonable steps to minimize the losses they have suffered. Although not usually a burdensome standard to meet, a dismissed employee should be making reasonable efforts to find new employment.

Employees Have a Duty to Mitigate Their Losses

Where an employee finds another position, courts will normally subtract the amount of money earned from such other sources from the reasonable notice period the employee is entitled to from their wrongful dismissal.

There are different ways that employees can mitigate their damages from a wrongful or constructive dismissal. An employee can accept:

  1. Re-employment with the same employer,
  2. employment in a non-comparable job position, or
  3. employment in a comparable job position

Accepting or refusing to accept a position with the employer against who the employee has a legal claim is tricky from a legal perspective. Several judges have concluded that an employee can refuse an offer of alternative employment with the same employer where the work environment the employee would be returning to is hostile or would cause loss of dignity or embarrassment. Courts look at the entire context including the employee’s relationships with individuals at the former workplace, salary, and similar work conditions and responsibilities.

Employees who mitigate their damages by finding a new job position may find a job position that has a similar level of responsibilities and salary, or may only be able to find an inferior position. A recent Ontario case demonstrates when courts will refuse to deduct the earnings of a wrongfully dismissed employee during the reasonable notice period.

The Mackenzie Decision

In MacKenzie v. 1785863 Ontario Ltd., 2018 ONSC 3442, Mr. MacKenzie was terminated from his senior level position as a general manager at a printing company where he earned $65,000 annually. Mr. MacKenzie was 65 years old at the time of termination and had been working for the employer for about five years. The employer blamed Mr. MacKenzie for being unable to revive the business and terminated him without cause.

Within one month, Mr. MacKenzie began working as a consultant to his wife’s printing company, earning $2000 per month. After six months, he began working at a new position, earning $1500 per month, which is about 3.6 times less than the annual salary he was earning at the printing company.

After deciding that the appropriate length of notice for Mr. MacKenzie is nine months (equivalent to nearly $49,000), the court decided that the income Mr. MacKenzie earned after termination should not be deducted from the nine months’ notice period.

The Test: When is Income Deducted from Notice Pay?

In concluding that Mr. MacKenzie’s earnings were not to be deducted, the court cited Brake v PJ-M2R Restaurant Inc., 2017 ONCA 402.

In Brake, the court stated that a dismissed employee has a duty to make reasonable efforts to find a position comparable in salary to mitigate his or her damages. However, the employee can refuse employment that is not comparable in salary without breaching the duty to mitigate.

The court’s view is that where a wrongfully dismissed employee is forced to accept a position that is considerably inferior, the earnings from such a position are not classified as mitigation of damages. Accordingly, such earnings are not deducted from the amount the employee is entitled to from the former employer.

This decision is significant for employees because it recognizes that dismissed employees sometimes need to work at relatively menial jobs to pay the bills while they look for a comparable job.

If you have been recently terminated and are considering taking a lower paying job or a contract position, contact one of the lawyers at MacLeod Law Firm to learn how this job will impact your wrongful dismissal. You can contact us at [email protected] or 647-204-8107.

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