Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2014 More Cases Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2014 More Cases recordkeeping in COMS, so they continued to review how to do things and the director also emailed follow-ups. In November 2012, it was discovered Benger had allowed a client to change residences in breach of a court order. is wasn't allowed without a variation from the court, but Benger said a previous manager had told him he could allow it. e direc- tor was concerned because such a variation wasn't within the jurisdiction of a probation officer, and as a result of the client's move Benger didn't know where the client was liv- ing or whether the client had gone through the family violence management program. As it turned out, the client — who had been convicted of domestic assault — was living with the victim of the crime and had not completed the program. Benger claimed he had not received ad- equate training and coaching and he didn't know the whole process. However, the di- rector knew Benger had been trained and attended review meetings but kept making the same mistakes, which made the Depart- ment of Justice look bad and created risk to the community. In February 2013, Benger went on vaca- tion for two weeks and failed to advise any- one of appointments scheduled with clients during his leave. He also took his appoint- ment book home — though proper proce- dure was to leave his appointment book in his locked filing cabinet at work. e prob- lem was only discovered when a client called regarding an appointment, causing confu- sion in the department. e director had to go through COMS and ensure all the clients were seen. Benger said he took his book home with him because he had been subpoenaed to court and he might need it. He claimed he didn't know he had to tell anyone about his agenda when he left, but the director knew he had been told not to take his appoint- ment book home on holidays. ough no one got hurt because of the two incidents, the director felt Benger's ac- tions created a significant amount of risk for the Department of Justice and the public. In addition, Benger didn't seem to appreciate the gravity of his misconduct. e director decided to terminate Berger's employment for not following directions, failing to docu- ment properly, breaching policy and guide- lines, failing to recognize violent tendencies of offenders, failing to initiate breaches of probation order, and failing to collect collat- eral information to verify client data. e arbitrator found Benger's explana- tion for the two incidents did not excuse them. Allowing a high-risk offender to move in with his victim while there was a court or- der prohibiting it wasn't acceptable, even if a previous manager said he could make such decisions, said the arbitrator. And Benger's claim that he didn't know he needed to in- form someone about his scheduled appoint- ments or the fact he took his appointment book with him when he left for vacation not only was contradicted by the department's training regime, but also just didn't make sense, said the arbitrator. "(Berger's) failure to notify the employer as to scheduled appointments during his va- cation and his removal of his appointment book are strong indicators that this employ- ment relationship was irreparably broken," said the arbitrator. "Taken together, the last two incidents were sufficient in and of themselves to justify termination." e arbitrator determined that there were problems with Berger's performance over a long period of time and the depart- ment tried to work on it, but Berger just didn't improve. e November 2012 and February 2013 incidents were the last straw for the department, and termination was an appropriate response, said the arbitrator. See Manitoba and MGEU (Benger), Re, 2014 CarswellMan 231 (Man. Arb.). Risk to public Policies reversed « from ProbAtioN on page 1 « from burDeN on page 3 ing will be those in skilled trades that are critical for the development of infrastruc- ture, those whose wage level indicates they are highest-skilled in their occupation, or are those involved in short-term projects or warranty work. enforcement measures e government promises to increase the number and scope of inspections of em- ployers hiring TFWs to ensure they are complying with all the requirements of the TWP, through more site visits conducted without a warrant, interviewing workers, compelling employers to provide docu- ments verifying their compliance, and ban- ning employers who break the rules. e government will also expand its use of the confidential tip line launched in April 2014 to report abuse of the TWP. Perhaps the most serious enforcement mechanism will be the criminal prosecu- tion of employers suspected of activities in breach of the Immigration and Refugee Protection Act (IRPA), such as employing foreign nationals that are not authorized to work in Canada along with counseling or performing misrepresentations. e government proposes to impose monetary fines of up to $100,000 and imprisonment of up to five years. ese major changes indicate a complete reversal of prior policies that encouraged TFWs to come to Canada with valid work permits first, in order to gain the necessary experience to become permanent residents. Also, prior policy allowed employers more flexibility in addressing labour shortages. e new guidelines penalize employers in specific service sectors that cannot attract a sufficiently high number of Canadians, such as the hospitality and fast food industries. Notwithstanding the complexity of the new guidelines, the government has failed to address some of the most obvious sources of abuse, such as those perpetrated by small employers hiring relatives with little or no experience as a path to obtain permanent residency. Further, the government ignores a problem of its own creation: the growing number of open work permits granted un- der the International Experience Class (IEC) to young workers from overseas who come to Canada and compete directly against Ca- nadians in entry level or junior professional positions. In fact, employment minister Jason Kenney has expanded that program, which is scheduled to climb to 10,000 open work permits to young citizens of Ireland. It makes little sense to expand the open work permit category while reducing the number of employer-specific work permits. Rather than completely revamping the TWP, the government should have concen- trated on detecting abuse, enforcing exist- ing rules and imposing significant penalties on violators. It is noteworthy that although enforcement provisions have been part of immigration legislation since 2002, there have been very few prosecutions of employ- ers under IRPA in connection with the un- authorized employment of foreign nation- als, due to the fact that investigations are costly, time intensive, and usually require the co-operation of foreign worker victims as witnesses. ere is also a high bar to ob- tain convictions, so it is difficult to under- stand how an increase in penalties will deter abuse, or result in better prosecutorial out- comes, as it is unclear how many resources will be allocated to investigate complaints and the enabling legislation remains funda- mentally unchanged. » Sergio R. Karas is principal of Karas Immigration Law in Toronto. He is a Certified Specialist in Canadian Citizenship and Immigration Law by the Law Society of Upper Canada and is editor of the Global Immigration Handbook, published by Carswell. He can be reached at (416) 506- 1800 or karas@karas.ca. sergio r. KArAs

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