Keep human rights legislation in mind when writing help-wanted ads • If a worker won’t relocate to another city or country, can he be fired?
Keep human rights legislation in mind when writing help-wanted ads
Question: I am in the process of starting my own company and need to hire new employees. I have been told human rights legislation prohibits me from asking certain questions of prospective employees. Could you provide some guidance on how to write job advertisements and application forms that do not run afoul of human rights obligations?
Answer: Well-meaning employers can inadvertently and unintentionally violate the law by advertising in a way that directly or indirectly discriminates against job applicants. Typically discrimination occurs when information is sought that has nothing to do with performing the job. Creating a legally sound job advertisement means ensuring the job requirements list qualifications that directly relate to a person’s ability to do the job.
If an employee does not need a car to do the job, the application form should not ask for driver’s license information. If, however, there are reasonable requirements or duties of employment that directly and genuinely relate to the performance of the job, it is perfectly alright to specify these in the job advertisement. It would be reasonable for an employer to require a taxi cab dispatcher to be able to speak clearly in English. But it would be discriminatory to require that the individual speak without an accent.
Even when an employer is successful in writing a fair and non-discriminatory advertisement, if the application forms ask for the wrong information, it may still be open to allegations of human rights violations.
Here are a few examples of areas to watch out for:
•Race, colour and religion: Avoid all questions about an applicant’s race and colour. Almost all question relating to religion or creed are prohibited.
•Gender: Never ask for an applicant’s gender. Gender discrimination is a forbidden form of discrimination in all jurisdictions.
•Age: Depending on the province, an employer may ask if an individual has reached the age of 18 or 19 or is older than 65. Do not ask for a specific date of birth. The easiest way is to ask if the applicant is of legal working age.
•National or ethnic origin: Employers can only ask whether an applicant is eligible to work in Canada.
•Marital and family status: Questions about whether an applicant is married, single, divorced or widowed should be avoided.
•Height and weight: Be careful about asking about height and weight as such questions can result in allegations of indirect discrimination. An employer who sets a height or weight restriction must be able to establish that such a requirement is essential to the job.
When in doubt have the recruiting forms reviewed by a person with legal expertise to avoid human rights claims.
If a worker won’t relocate to another city or country, can he be fired?
Question: I work for a company that is expanding its operations across Canada. Does an employer have an inherent right to require the worker to relocate to a different branch or even to a different city or country? If the worker refuses the request to transfer, can he be dismissed for cause?
Answer: Relocating an employee to a different location can constitute constructive dismissal if accepting such relocation is not a term or implied term of the employment contract. Constructive dismissal occurs when an employer unilaterally changes a basic term or condition of employment.
Generally it is an implied term of every employment contract that a worker will accept all reasonable transfers that do not involve a demotion or undue hardship. This is clearly the case where the nature of the work indicates that mobility is likely or where the worker has shown flexibility with respect to mobility.
In Smith v. Viking Helicopter Ltd., the court concluded the employer's decision to move its business from Ottawa to Montreal for practical business reasons did not constitute constructive dismissal.
But the right to request that the worker relocate is not an absolute right. There are a number of factors that will be considered in determining whether it is reasonable or whether it amounts to a constructive dismissal, including the number and location of branches, the number of employees, the worker's position and duties, whether the company is acting in good faith, whether the company has a legitimate business reason for relocating, the personal circumstances of the employee and whether the company will pay relocation costs.
Whether or not there are grounds for dismissal will invariably depend on the factors mentioned above. Provided there is no written term in the contract limiting the location of work, or the right of the employer to request a relocation, and there is a legitimate business reason with little or no hardship to the worker, it is likely the company will have a strong case for just cause dismissal in the event the worker refuses the transfer.
Before making a relocation decision, employers should discuss the possibility of relocation with the worker. Being aware of his personal circumstances prior to making any request is the best approach. Consider providing reasonable notice to the worker about the requirement to relocate. The longer the worker has been employed, the lengthier the notice should be.
Peter Israel is the head of Goodman and Carr LLP’s Human Resource Management Group. He can be reached at (416) 595-2323 or [email protected].
Question: I am in the process of starting my own company and need to hire new employees. I have been told human rights legislation prohibits me from asking certain questions of prospective employees. Could you provide some guidance on how to write job advertisements and application forms that do not run afoul of human rights obligations?
Answer: Well-meaning employers can inadvertently and unintentionally violate the law by advertising in a way that directly or indirectly discriminates against job applicants. Typically discrimination occurs when information is sought that has nothing to do with performing the job. Creating a legally sound job advertisement means ensuring the job requirements list qualifications that directly relate to a person’s ability to do the job.
If an employee does not need a car to do the job, the application form should not ask for driver’s license information. If, however, there are reasonable requirements or duties of employment that directly and genuinely relate to the performance of the job, it is perfectly alright to specify these in the job advertisement. It would be reasonable for an employer to require a taxi cab dispatcher to be able to speak clearly in English. But it would be discriminatory to require that the individual speak without an accent.
Even when an employer is successful in writing a fair and non-discriminatory advertisement, if the application forms ask for the wrong information, it may still be open to allegations of human rights violations.
Here are a few examples of areas to watch out for:
•Race, colour and religion: Avoid all questions about an applicant’s race and colour. Almost all question relating to religion or creed are prohibited.
•Gender: Never ask for an applicant’s gender. Gender discrimination is a forbidden form of discrimination in all jurisdictions.
•Age: Depending on the province, an employer may ask if an individual has reached the age of 18 or 19 or is older than 65. Do not ask for a specific date of birth. The easiest way is to ask if the applicant is of legal working age.
•National or ethnic origin: Employers can only ask whether an applicant is eligible to work in Canada.
•Marital and family status: Questions about whether an applicant is married, single, divorced or widowed should be avoided.
•Height and weight: Be careful about asking about height and weight as such questions can result in allegations of indirect discrimination. An employer who sets a height or weight restriction must be able to establish that such a requirement is essential to the job.
When in doubt have the recruiting forms reviewed by a person with legal expertise to avoid human rights claims.
If a worker won’t relocate to another city or country, can he be fired?
Question: I work for a company that is expanding its operations across Canada. Does an employer have an inherent right to require the worker to relocate to a different branch or even to a different city or country? If the worker refuses the request to transfer, can he be dismissed for cause?
Answer: Relocating an employee to a different location can constitute constructive dismissal if accepting such relocation is not a term or implied term of the employment contract. Constructive dismissal occurs when an employer unilaterally changes a basic term or condition of employment.
Generally it is an implied term of every employment contract that a worker will accept all reasonable transfers that do not involve a demotion or undue hardship. This is clearly the case where the nature of the work indicates that mobility is likely or where the worker has shown flexibility with respect to mobility.
In Smith v. Viking Helicopter Ltd., the court concluded the employer's decision to move its business from Ottawa to Montreal for practical business reasons did not constitute constructive dismissal.
But the right to request that the worker relocate is not an absolute right. There are a number of factors that will be considered in determining whether it is reasonable or whether it amounts to a constructive dismissal, including the number and location of branches, the number of employees, the worker's position and duties, whether the company is acting in good faith, whether the company has a legitimate business reason for relocating, the personal circumstances of the employee and whether the company will pay relocation costs.
Whether or not there are grounds for dismissal will invariably depend on the factors mentioned above. Provided there is no written term in the contract limiting the location of work, or the right of the employer to request a relocation, and there is a legitimate business reason with little or no hardship to the worker, it is likely the company will have a strong case for just cause dismissal in the event the worker refuses the transfer.
Before making a relocation decision, employers should discuss the possibility of relocation with the worker. Being aware of his personal circumstances prior to making any request is the best approach. Consider providing reasonable notice to the worker about the requirement to relocate. The longer the worker has been employed, the lengthier the notice should be.
Peter Israel is the head of Goodman and Carr LLP’s Human Resource Management Group. He can be reached at (416) 595-2323 or [email protected].
