Canadian Employment Law Today

September 18, 2013

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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CELT Sept 18 2013:celt 467.qxd 13-09-13 10:58 AM Page 3 CANADIAN EMPLOYMENT LAW TODAY Canadian work experience not a basis to refuse jobs to newcomers Ontario Human Rights Commission's recommendations not law but will be considered in tribunal decisions newcomers are in a very difficult position: they can't get a job without CanaON July 15, 2013, the Ontario Human dian experience and they can't get Rights Commission released its latest Canadian experience without a job." A policy entitled "Removing the 'Cana- similar challenge presents itself when dian Experience' Barrier." Intended to a newcomer seeks professional recogaddress one of the barriers identified nition or accreditation of experience by immigrant groups to finding jobs in gained outside Canada. Canada, the policy recomAs a result, many mends employers amend newcomers find themtheir recruitment and hirselves working in unpaid IMMIGRATION ing practices to depositions in an effort to emphasize "Canadian gain some form of Canawork experience" as a qualification for dian work experience. And while hiring. potentially beneficial to the newcomer, benefiting from the efforts of unpaid The role of the commission — workers can expose Canadian employa brief overview ers to unanticipated liability under the Prior to 2006, the role of the commis- applicable employment standards legsion was to act as a "gatekeeper", islation in their jurisdiction. reviewing and investigating complaints under the Ontario Human Employers are encouraged Rights Code to determine whether to take a flexible they had sufficient merit to be forwarded to the Human Rights Tribunal and individualized approach for a full hearing. to assessing qualifications. Following significant changes to the code in 2006, the commission's role has evolved away from a gatekeeper func- The commission's recommendations — tion to that of an education and policy- do's based one, including producing papers, The commission's policy provides a reports and policy guidelines. Despite this role, commission policies are not number of suggestions for employers considered law or binding on employ- (including regulators) to remove Canaers. However, they are used by the dian experience barriers. These Human Rights Tribunal when inter- include: preting and applying the code in its •Reviewing job requirements and descriptions, and recruitment and hirhearings. ing practices to ensure they do not 'The Canadian experience' conundrum present barriers for newcomer appliAccording to Statistics Canada, lack cants of Canadian experience has been iden- •Taking a flexible and individualized tified as the most common barrier for approach to assessing qualifications of newcomers looking for meaningful immigrant job applicants employment in Canada. As identified •Using competency-based methods to by the commission, "when facing a assess an applicant's skill and ability to requirement for Canadian experience, do the job | BY ERIN KUZZ | •Considering all relevant work experience – regardless of where it was obtained •Framing job qualifications or criteria in terms of competencies and jobrelated knowledge and skills. Of some concern, the policy also suggests broad-based "best practices" including that employers: "Examine their organizations as a whole to identify potential barriers for newcomers; address any barriers through organizational change initiatives, such as by forming new organizational structures, removing old practices or policies that give rise to human rights concerns, using more objective, transparent processes, and focusing on more inclusive styles of leadership and decision-making." Clearly, it will take time to see how the tribunal will interpret such vague recommendations. The commission's recommendations – don'ts The commission has also set out a series of actions employers should avoid, including: •Requiring applicants to have prior work experience in Canada •Including a requirement for qualifications that could only be obtained by working in Canada •Discounting an applicant's foreign work experience or assigning it less weight than their Canadian work experience •Requiring applicants to disclose their country of origin or the location of their work experience on the job application form •Asking applicants questions that may directly or indirectly reveal where their work experience was obtained Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 6 3

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