Canadian HR Reporter

CANADIAN HR REPORTER September 4, 2017 EMPLOYMENT LAW 5 JOINT VENTURE BY: Shana French and Brian Wasyliw LegaL VieW Four key pre-employment steps and precautions Canadian courts off er guidance to employers Attracting and hiring the right candidate is important. However, employers often ig- nore or give insuffi cient attention to key pre-employment steps and precautions. Several recent decisions from Canadian courts have provided employers with im- portant guidance regarding: 1. reference checks 2. representing the position 3. the timing of when the employment con- tract is signed and 4. the inclusion of a probationary period. References: "Tell me what you really think" Many employers have moved away from reference checking because too often little meaning- ful information is provided by the reference giver out of a fear of be- ing sued for a negative reference. However, as recent cases have shown, a former employer will not be liable for a negative refer- ence provided it was made with- out malice. In the 2016 Ontario case Kanak v. Riggin, an employee sued her former manager whose reference included the fact the employee worked well in an autonomous position but not in a collaborate environment or under stress. As a result, a conditional off er was rescinded and the employee sued the former manager for defama- tion. At trial, the court was satis- fi ed the comments were defama- tory on their face, but because they were given without malice, were covered by qualifi ed privi- lege, and the claim was dismissed: "… an employer must be able to give a job reference with candour as to the strengths and weak- nesses of an employee, without fear of being sued in defamation for doing so. Without this protec- tion, references would either not be given, or would be given with such edited content as to ren- der them at best unhelpful or at worst misleading to a prospective employer." Accurately represent the role Where a prospective employer makes a negligent misrepresen- tation about the position and the employee relies on the represen- tation to his detriment, the em- ployer may be liable for any dam- age suff ered. Consider the 2017 British Columbia case Feldstein v. 364 Northern Development Corp. Cary Feldstein had cystic fi bro- sis. During his pre-employment interview, he inquired about LTD coverage and was advised the company off ered benefi ts af- ter a three-month probationary period. He also received a ben- efi ts summary which contained a "Proof of Good Health" heading and a statement that "Approval would be required for coverage in excess of $1,000 and any increase in that coverage of 25% or more of $5,000, whichever is greater." When Feldstein inquired with the employer about the mean- ing of "Proof of Good Health," he was led to believe if he worked for three consecutive months, he would be approved for benefi ts in excess of $1,000 per month, de- spite his pre-existing condition. Not surprisingly, this is not what the provision meant and when Feldstein applied for LTD cover- age, he was approved, but only for $1,000 per month, as compared to the $4,700 he expected to receive, on the basis he failed to complete a medical questionnaire when Notable cases Papp v. Stokes, 2017 ONSC 2357 (Ont. S.C.J.): After interviewing Adam Papp, the Yukon government called Ernest Stokes, Papp's former employer, for a reference. Stokes said Papp was let go because "he was not needed anymore and had a performance and attitude issue." He also said Papp didn't work well in a team setting. Papp wasn't hired and he sued his former employer for wrongful dismissal and defamation. The court agreed Stokes' comments were defamatory on their face, but said there was evidence to support what Stokes said was true, so it was not defamation. Nagribianko v. Select Wine Merchants Ltd., 2016 CarswellOnt 891 (Ont. Div. Ct.): Alexander Nagribianko's employment contract with Select Wine Merchants included a six-month probation. With six days left in the probation, Select dismissed him without notice because he was "unsuitable for regular employment." Nagribianko claimed wrongful dismissal, saying Select hadn't given him an employee handbook. After a court found Nagribianko was induced into taking the job and awarded him four months' pay, an appeal court said an employer can dismiss a probationary employee without notice in good faith. The handbook didn't matter as the contract clearly stipulated the six-month probation. And there was no inducement as the probationary period made it clear permanent employment wasn't guaranteed. Gibbons v. BB Blanc Inc., 2016 CarswellOnt 11390 (Ont. S.C.J.): Michael Gibbons was promoted to assistant manager at BB Blanc in Toronto and his new employment contract stated if he was terminated without cause, he would receive working notice or pay in accordance with employment standards legislation. Nine months later, BB Blanc terminated Gibbons' employment with two weeks' pay in a restructuring. He argued the contract wasn't enforceable because it was signed after he accepted the promotion. The court found the conversation about the promotion wasn't an actual job offer and everything indicated the new job duties and salary started on the start date shown in the contract after he signed it. PRECAUTIONS > pg. 14 One-half (49 per cent) of Canadian employers have caught a lie on a job applicant's CV. to get ahead Lying THE MOST COMMON LIES? Embellished skill set: 58 per cent Embellished responsibilities: 53 per cent Job title: 32 per cent Academic degree: 31 per cent Companies worked for: 31 per cent Dates of employment: 27 per cent Accolades/awards: 20 per cent Source: CareerBuilder 66 % 57 % 24 % Job experience Job duties Education Employment dates More than one-third of Canadian workers (37 per cent) said they know someone who included false information on a resumé. irty-fi ve per cent of senior managers said their company has removed an applicant from consideration for a position after discovering he lied. Source: OfficeTeam, Robert Half Canada MISREPRESENTED OR EXAGGERATED INFORMATION ON RESUMES

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