Our firm recently won a human rights case for one of our employer clients. The human rights application was filed by a candidate for a position who claimed she was discriminated against in the hiring process. The case was an interesting one because when it started it left the question as to how we were going to prove that the candidate was not hired for reasons which were not discriminatory.

In this case, the employer did a tremendous job exercising “best practices” prior to the allegations being made, which made winning the case significantly easier. First, they created a very detailed job posting which specifically outlined the criteria of the job. Second, the candidate was asked specific questions on the job requirements. Third, they kept great notes of these discussions, and included the reasons why the individual did not meet the job requirements.

These steps were critical in assisting the Tribunal in understanding that the decision regarding this candidate was based on objective criteria and not discriminatory grounds.

The Human Rights Tribunal receives thousands of cases every year. In most of the cases, the respondents swear that they did not discriminate against the applicant. As you can imagine, it is an extraordinarily difficult task trying to figure out which respondents are being truthful and which aren’t. As a result, the process taken by respondents and the documentation that they have is very helpful in guiding the decision-maker to a decision which is favourable to an employer.

This approach is applicable not only to the hiring process but also the performance management process in general. We are often asked by employers “why would we performance manage an employee when we never terminate for cause?” Well, there are two answers to this question. First, there may be circumstances in which cause is alleged and without performance management, it will often not be proven. Second, documentation is not only helpful for justifying cause, but also for justifying terminations without cause. In a case where an employee is terminated without cause, there are times when the employee alleges that he/she was terminated because of discriminatory reasons. An employer is much more likely to defend such an allegation if they have done an objective review of the workplace and have excellent records of an employee’s poor performance which led to the termination, even if it was without cause.

We always tell our clients to keep good records, but this is a perfect example of why it is important.

James Heeney

In the last two weeks we have seen a number of new clients who have been offered jobs and want our legal services to review the contracts.

Prior to the market crash in 2008 this was common, but after the fall of 2008, the number of these requests fell dramatically and has remained low.

The recent increase in the number of new contract reviews suggests that the market may be recovering and that hiring is starting to return. Unfortunately, we are also seeing a number of terminations, which remained high throughout February. This suggests that the marketplace may still be in transition.

While we start to move from recession to recovery, employers and employees should remain mindful that a good employment contract is often the best way to avoid disputes during the relationship and/or when it ends.

Certainly when someone is hired, we don’t want to talk about what would happen if things don’t work out. However, that approach only postpones what could be a litigious ending. Employers and employees should agree on what occurs on termination before that event occurs. This includes not only outlining what notice is owed to the employee if he/she is terminated, but also how much notice prior to resignation the employer needs should the employee choose to depart.

James Heeney