Canadian Employment Law Today

Canadian Employment Law Today Canadian Employment Law Today | | 3 Cases and Trends Cases and Trends Canadian HR Reporter, 2021 AN ALBERTA foreign worker's termination was based on his inability to meet the employer's reasonable standards for the safety-sensitive job, not his place of origin, the Alberta Human Rights Tribunal has ruled. In February 2018, Mostafa Osman applied for a job as a motor coach operator with Diversified Transportation, an employee trans - portation company that serves industries with remote locations in Northern Alberta and has facilities in Edmonton and the Fort McMurray area. Osman wasn't a Canadian citizen or a permanent resident, but he held a valid work permit. Two months later, the company hired him subject to the completion of classroom and field driving assessments. Diversified then opened an employee file, into which it added his social insurance number and work permit from Immigration, Refugees and Citizenship Canada. Osman began the classroom element of his training shortly after his hiring and completed it to a satisfactory standard. His field driving assessments were conducted on May 1 and 2 and resulted in a determination that further training was necessary. Further testing over the next couple of days showed that Osman was able to complete most tasks. On May 5, Osman completed additional field training and confirmed that he was able to operate a motor coach safely. Diversified inquired about his immigration status, and it was discussed that he wasn't a Canadian citizen or a permanent resident. On May 7, the company terminated Osman's employ - ment and prepared a final operator evaluation report that stated his driving was unsatisfac- tory to operate a motor coach. Diversified's report indicated that Osman was hired on a conditional contract and had to complete all field training before it placed him in a permanent driver position. It also pointed out that his driver training had mixed results, showing a need for improvement and more training after the first two days. In addition, the final evaluation on May 5 indicated that Osman had failed to complete many tasks correctly and that he "committed several serious errors, which are likely to cause an accident." However, Osman believed that his termin - ation was related to the fact that he wasn't a Canadian citizen or permanent resident and that the additional testing was connected to his residency status, which was discrimination in the area of employment on the grounds of place of origin, contrary to the Alberta Human Rights Act. As a result, he filed a human rights complaint. Unsuccessful assessment An Alberta human rights officer investigated Osman's complaint and determined that it had no merit. The director of the province's human rights commission reviewed the investigator's conclusion and found that the evidence didn't support Osman's view that his place of origin was a factor in his termina - tion. The director also found that Diversified's decision to terminate Osman's employment was based on his unsuccessful performance during the driving tests, and any connection to Osman's residency status was speculation. Osman's complaint was dismissed. Osman appealed and requested that the decision be reviewed by the Alberta Human Rights Tribunal, insisting that he was termin - ated because of his residency status, which constituted discrimination. He also pointed out that Diversified required his final day of training to take place in downtown Edmonton, although the job would only require driving in rural work camps. Diversified countered that it had been aware of Osman's status because it had his social insurance number when he was hired, and it regularly hired drivers who were author - ized to work in Canada but didn't hold citizen- ship or permanent resident status. The tribunal found that Diversified was aware of Osman's status and his work permit shortly after he was hired, and it added that information to his employee file before his assessments began. The company continued with the assessments with that knowledge, indicating that it still intended to employ him, the tribunal said. However, the evaluations showed that Osman had mixed results from his training — some satisfactory and some needing improvement — and the company required an additional few days. The docu - ments showed that Osman didn't meet the standard Diversified required of its drivers, so it terminated his employment, the tribunal said, adding that testing Osman's driving skills in an urban environment was legitimate, regardless of where he would be driving motor coaches. "An employer has the right to set the stan - dards of employment for its employees, including competency to manoeuvre a large coach in an urban setting, regardless of the job location," said the tribunal. "In light of the concern for public safety, it is expected that a coach line operator would require a high competency standard from its drivers." The tribunal determined there was no reasonable basis to proceed to a hearing and dismissed the complaint. For more information, see: • Osman v. Diversified Transportation Ltd., 2021 AHRC 25 (Alta. Human Rights Trib.). Transportation company was already aware of work permit before conducting driver assessment with mixed results BY JEFFREY R. SMITH Unsatisfactory assessment a legitimate reason for foreign worker's termination CREDIT: FRANCISCO JAVIER BUSTOS RUBIO iSTOCK The worker was terminated after a few extra days of assessment and an inquiry into his immigration status.

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