Canadian Employment Law Today

with Colin Gibson Ask an Expert HARRIS AND COMPANY VANCOUVER Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2015 2 | June 24, 2015 Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com BUSINESS TRIPS on page 6 » Liability for discrimination by recruitment agency Question: Can an employer be held responsible for the actions of a recruitment agency that discriminates against job candidates without the employer's knowledge? Mandatory business trips Question: If travelling isn't normally part of an employee's job, is there a risk of a constructive dismissal or an obligation for extra compensation, if the employee is required to take multiple business trips over a short period of time? Answer: At common law, a constructive dismissal arises where an employer changes a fundamental term of employment with- out the consent of the employee. In such cir- cumstances, the employee is entitled to take the position that the employer has repudi- ated the employment contract, may resign and seek wrongful dismissal damages. A constructive dismissal claim will fail if the employer is able to show that its actions were consistent with the express or implied terms of the employee's employment con- tract (the terms of employment were not changed after all), or that the change was not sufficiently "fundamental" to qualify as a constructive dismissal. e classic constructive dismissal in- volves demotion, reduced remuneration and some form of humiliation. But there are other types of changes made unilaterally by employers that have also been found to be a repudiation of the employment contract. Whether a requirement that an employee take multiple business trips over a short peri- od of time would be a constructive dismissal will depend on the particular circumstances. If the employee occupies the type of position where it is reasonable to expect that business travel may be required from time to time, the employee will not be able to claim that a requirement to go on business trips has re- sulted in a fundamental change to the terms of employment. In Owens Illinois Canada Inc. c. Boivin, the Quebec Court of Appeal considered a travelling salesperson's claim for constructive dismissal. e employee, who spent between two-and-a-half to three weeks travelling for work per month, was asked to relocate temporarily to England for six months. e employee refused and claimed constructive dismissal. e court found that given the nature of the employee's position, the request was reasonable. On the other hand, the imposition of a requirement to take multiple business trips may be a constructive dismissal if the na- ture of the employee's position or the terms of the employment contract are such that multiple business trips were not in the rea- sonable contemplation of the parties. An ex- ample is Reynolds v. Innopac Inc., where the employee was employed in Ontario as the Vice-President of Human Resources of the employer. As part of his job, the employee was required to visit the employer's plants, most of which were in eastern Canada and the eastern United States. When the em- ployer required the employee to accept a Answer: Every jurisdiction in Canada has human rights legislation that prohibits em- ployment-related discrimination on a num- ber of protected grounds, such as sex, race, age, physical disability, mental disability, and religion. ese statutory protections apply not only to an employer's existing employ- ees, but also to job applicants. If a candidate applies for a position and doesn't get it, the employer must ensure its decision was not connected to a protected ground, unless the refusal to hire was based on a bona fide oc- cupational requirement. Human rights tribunals have statutory authority to grant a variety of remedies if an employer is found to have failed or refused to hire a candidate on a protected ground, which can include lost wages and expenses, damages for injury to dignity, feelings or self- respect, and even an order that the employer provide the individual with the job she was improperly denied. Where an employment-related human rights claim is filed, the respondents will of- ten include the employer, as well as the man- agement representatives or other employees who are alleged to have engaged in the dis- criminatory acts. Under the principles of the vicarious liability, an employer will be held responsible for the discriminatory actions of its employees, if those actions occurred in the course of employment. An example is the Ontario decision in Halliday v. Van Toen Innovations Incorpo- rated. e complainant was a recovering drug addict who had been clean and sober for nearly a year when he began working for the employer. e employment relationship deteriorated when the employee's supervi- sor found out about his past and began to refer to the complainant as a "crack head," both directly and in emails to other employ- ees. Following these and a number of other incidents, the employee resigned and filed a human rights complaint. e Human Rights Tribunal of Ontario found that the supervi- sor had discriminated against the employee on the basis of a disability, and that the em- ployer was also vicariously liable for the dis- crimination. e employer and the supervi- sor were held jointly and severally liable to pay the complainant $25,000 for the breach of his inherent right to be free of discrimina- tion with respect to employment and to be free from reprisal, and for the injury to his dignity, feelings and self-respect. e analysis becomes more complicated where the discriminatory acts that are the subject of a human rights complaint against an employer were not the acts of an em- ployee, but of an independent contractor engaged by the employer to provide ser- vices. Under what circumstances should an employer be held liable for the actions of an independent third party? A good example is the situation raised in your question, where an employer retains an independent recruitment or search firm, and that firm is later alleged to have engaged in discrimination in the search process, con- trary to human rights legislation. In these circumstances, the employer will be held responsible if the evidence shows the search firm acted in a discriminatory man- ner on the employer's instructions. But even if the employer was unaware of the search firm's discriminatory acts, the employer may still be liable if the firm was acting as the employer's agent when it engaged in the unlawful discrimination. For example, if an employer hires a search firm to review and screen job applications and provide a short list of candidates to interview, the employer may be held liable if the search firm screens out individuals on the basis of their race or gender. To avoid unexpected liability in these circumstances, employers should ensure their contracts with recruitment or search agencies clearly outline the rights and re- sponsibilities of each party. For example, the contract should list the specific services the search firm is being retained to provide, and should include language requiring the search firm to provide such services in compliance with applicable laws, including but not lim- ited to relevant human rights legislation. e contract should also require the search firm to indemnify the employer if the employer is ordered to pay damages, expenses or other amounts to a third party because of a breach by the search firm of its legal obligations.

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