Canadian Employment Law Today

August 14, 2019

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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2 | August 14, 2019 with Leah Schatz Ask an Expert MLT AIKINS LLP, SASKATOON Have a question for our experts? Email Canadian HR Reporter, 2019 Answer: If a job candidate provides the name of a specific person at a company for a reference, the employer should only con- tact that person, unless the candidate has consented to the employer contacting other individuals within the same company. e employer should always get consent from the candidate before contacting any refer- ence. Employment information is confi- dential and the candidate has a right to the protection of that information. Privacy law protects the release of employment informa- tion unless the candidate has consented to the release of that information, usually in an application or interview. Checking references is an important part of the hiring process and should not be viewed as a mere formality. Individuals who are external to the employer's organization and have experience with the candidate are in an excellent position to give the employer an accurate estimate of whether the candi- date will be able to perform the job. ey can also provide perspective on the candidate's strengths and weaknesses in an objective manner. It is important when obtaining references to fully describe the job and ask open-ended, specific questions, and to take the time to listen carefully. Reference checks are an important part of the hiring process, but the employee must always consent to the contact if reference checks are to be done in such a way as to not violate the candidate's privacy rights. Leah Schatz is a partner with MLT Aikins LLP in Saskatoon. She can be reached at (306) 975-7144 or Employment information is confidential and the candidate has a right to the protection of that information. Contacting other people at same company as job candidate's reference Question: If a job candidate provides a specific person at a company for a reference, can the employer contact anyone at that company? Should the employer get consent from a candidate to contact any references? Following the progressive discipline process Question: What is the accepted standard progression of steps for progressive discipline before reaching the point of dismissal? Are there exceptions to this process? Answer: Progressive discipline is the pro- cess of using increasingly severe steps to correct inappropriate behaviour after an employee has been given a reasonable op- portunity to do so. e underlying principle of sound progressive discipline is to use the most appropriate form to correct the type of behaviour that is inappropriate, given the employee's past disciplinary record. Misconduct is deliberate behaviour, where an employee deliberately behaves in a manner he knows is inappropriate. In contrast, performance problems are often a result of lack of training, skills or motiva- tion. Performance problems are often solved through coaching and mentoring, which is not disciplinary. Misconduct requires pro- gressive discipline, and it sometimes leads to termination. When an employee is being disciplined, typically the following steps are followed: verbal warning, written warning, suspen- sion with pay and, lastly, termination. After each step before termination, the employee should be given an opportunity to correct the problem or the behaviour. If he does not correct the behaviour, the type of discipline increases in severity and, eventually, termi- nation occurs. It is important to determine the appropri- ate level of discipline in each situation and to be consistent. How others have been treated in a similar situation should be one consider- ation in determining appropriate action, but there are several other factors that should be considered such as the employee's length of service, his previous record of performance and conduct, whether there was provoca- tion involved, whether the misconduct was premeditated, whether the employee knew the rules and they had been consistently ap- plied and whether the employee acknowl- edges the mistake and shows remorse. ere are exceptions to the process of progressive discipline. In considering the misconduct and the factors outlined above, it may be that the behaviour has been so in- appropriate that it constitutes a fundamen- tal breach of the employment contract. In cases such as this, termination is appropri- ate, even if the progressive discipline steps of verbal warning, written warning and sus- pension have not been followed. In all cases of discipline, whether progressive or not, it is important to do a thorough investigation, giving the employee an opportunity to ex- plain his actions. In all cases of discipline, it is important to preserve the dignity of the employee and ensure that he is treated fairly and with respect. Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as conflict of interest policies, the vulnerability of young workers, and Quebec's ban on religious symbols. You can view the blog at In all cases of discipline, it is important to preserve the dignity of the employee and ensure he is treated fairly and with respect.

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