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LAW 529 (123)
Chapter 3

Law529-Chapter 3

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Ryerson University
Law and Business
LAW 529
Tim Bartkiw

Chapter 3 Common Law Issues 1. Misrepresentation by Job Candidates - No legislation requires candidates to be honest in app. Process - Misrep made by employees before they are hired may justify dismissal if false statement related to QUALIFICATIONS and WORK EXPERIENCE have significant impact on hiring - Applies to false statement though not necessarily needed in hiring process but says a lot about trust Case of Cornell vs. Rogers - Minor/negligent misstatements do not justify dismissal w.o notice - Ex. Unintentionally misstating length of employment time - Earle v. Grant Transport • Employers should include a attestation clause- clause that states the information provided is true and that any false statement may disqualify applicant or be ground for dismissal • AC- to emphasize honestly in applications and a defense to its legal position • If employers believe certain education and professional qualifications are needed, they should state it in their job posting or hiring policy 2. Negligent Misrepresentation: - If employer makes a misrep that is relied on by a prospective employee and causes employee damage - May have to compensate employees CASE: QUEEN VS COGNOS INC. Case facts: pg 67 Issue: Whether employer was liable for negligent misrepresentation, Decision: Supreme Court of Canada held the employer and its representative breached the duty of care owed to Queen during hiring process 1. There must be a duty of care based on a special relationship b/t the party making the representation and the candidate 2. Representation must be untrue, inaccurate and misleading 3. Party making the representation must have acted negligently in making the misrepresentation 4. Candidate must have reasonably relied on the negligent misrepresentation 5. The reliance must have caused harm to the candidate How employers can avoid liability • It should ensure that all info given at pre employment is accurate and complete • Job description is accurate and that all interviewer know the job and compensation package • Avoid misleading attempts to make job more attractive • If interviewer does not know answer to question, they should take steps When employee is chosen, they should: • Prepare a written employment contract that sets out terms of employment • Contract should include a cause that states all oral representations are VOID on the signing of the contract. • Not liable if… 1) Employees reliance on a employer’s info was unreasonable • 2) If reasonable person detected the inaccuracy • 3) Employee was n a position to verify facts of statement but failed to do so Recruitment Search Firms - Employers are responsible for the statements and promises made by recruiters - Employers contracts with search firms specify position, compensation 3.Inducement (allurement or enticement) - employee is lured into position from current position through aggressive recruiting or inflated promises - may also occur if the recruiter promises things such as promotions, salary increases, benefits that never materialize CASE: EGAN VALCATELCANADA(PG 70) -If there is a tort of inducement and they get dismissed from the position; Employee may be entitled to a larger award than wrongful dismissal w.o inducement. - To consider reasonable notice, judges consider additional factors such as whether they had left a already secure job and/or they rejected other jobs with better benefits etc - Unfair to wrongfully dismiss after a short period of time and rely on short notice entitlement - An employer that overstates the features of a job may find that it ALSO committed a tort of negligent misrepresentation -The employer and employee in a written employment contract period can address termination notice period 4. Restrictive Covenants -Written contracts restrict the ability of employees to compete with their former employers, solicit employees or customers, or to use former employers confidential info - Restrictive Covenant- a promise not to engage in certain types of activities during and after employment that might affect her ability to perform a new job (Employer should find if the EE is binded by a previous RC) -Only enforceable if they are reasonable if ER is able to show to courts that RC does not go beyond what is necessary to protect its legitimate interests - ER’s should receive legal advice when recruiting an EE with restrictive covenant 5. Anticipatory Breach of Contract - When one party rejects employment contract through statement or conduct BEFORE employment begins - Typically employers are sued for wrongful dismissal when it changes its mind - Requirements for anABC: 1. Offer of Employment was made 2. Offer was accepted 3. Contract was then rejected (repudiated) either written or by conduct by the employer 4. Employee suffered damage as a result ex. Leaving a secure position and relocating Exceptions: If the rejection can be justified. Ex: if driving is essential part and employee loses their license after job offer is made and accepted Background Check- Negligent Hiring Example of Common Misrepresentations in Resumes: 1. Family members as former supervisors 2. Gaps in employment 3. Incorrect start and end dates and titles 4. False academic credentials Time, effort and costs of a “bad hire” = potential liability for negligent hiring if employee later causes foreseeable harm to a third party How to reduce potential liability - Reference Checks: Common and recommended (ask employee to supply) - Getting a ride variety of sources ex. Past supervisors, co-workers, teachers CASE: DOWNEY VS. 502377 ONTARIO LTD. - Two doormen employed at bar beat a patron severely and caused serious brain injuries - Records show that one of thrddoormen had a history of violent actions - Employer found liable to 3 part when failure to check references caused harm Standard of Care imposed on employers = common law duty of reasonable care. (lvl of diligence that is reasonable under the circumstances) -Hiring an employee in a position of trust or who may be required to use force require high standard of care - Standard practice is to check the last 5 years of employment and/or the last 3 references • Before checking references, employer should obtain the written permission of an applicant. (Included in signature to give consent) • Employer should not be limited to making decisions based on only references named by the applicant • Specific consent should be obtained if contacting an applicant’s current EE since they may be unaware ex. To obtain reference after a conditional offer is made • **Employers should record the details of all steps taken when investigating candidates so they have written record for evidence and keep all information confidential • Reference voluntarily offers info about applicant that are on discrimination grounds, you should indicate that you are not interested in that information • Foreign references are equal to CDN references b/c they could lead to claims of discrimination Education and Professional Credential Checks Failure in checking educational/professional background can lead to negligence claims if they cause harm/loss to a third party -Educational requirements/certificates are necessary if law requires them to have for certain occupations. Ex: accountants, doctors, teachers - Checker should contact records departments to confirm a candidate’s degree and date of graduation or an independent source that evaluates institutions Credit Checks Ontario’s Consumer Reporting Act requires that the employer notify the applicant in writing if it does plan to do a credit check - Should include the request for authorization to conduct a credit check and the reason for notification on the application for employment - If candidate requests it, employer must give the name and address of the credit report agency - If candidate does not get the job, employer must advise candidate for the reasons and of her right to request information concerning the credit reporting agency supply the report within 60 days - Credit checks are common in industries where EE’s are handling customer’s money but should be used if only reasonably necessary Police Records Checks - Where a position required an employee to work closely with vulnerable people such as children, ppl with disabilities or involves substantial trust. - Requires applicant’s consent and some industries/sectors requires police record check - Ex. Teacher applying for a teaching certificate must provide criminal record declaration - Employers in ON are prohibited from discriminating against a person b/c of their conviction of a provincial offence (speeding) unless it is a bo
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