By Stuart Rudner
On June 12, 2013, my partner Natalie MacDonald and I were interviewed by James Munroe of 680 News, an AM radio station in Toronto.
While we ended up covering a variety of topics, the thrust of the discussion was “top tips on hiring and firing.”
I thought it might be helpful to reproduce some of those here.
With respect to hiring, we discussed a number of important points, including the following:
It is crucial to have a clear, well-drafted contract of employment. This will cement the terms and conditions of the employment relationship. In order to make it enforceable, the contract should be entered into before there is a verbal agreement in place, and certainly before the individual starts working. Furthermore, even if everyone agrees, you cannot provide less than the minimum statutory entitlements.
Avoid misrepresenting yourself or the position. Both employers and employees can expose themselves to liability for misrepresentation. Applicants should not lie about their background or qualifications, and employers should not overstate the opportunity. By way of example, the infamous case of Wallace v. United Grain Growers involved an assurance to Mr. Wallace that he could work there until he retired. This was a factor in Wallace’s decision to leave secure employment, and ultimately a factor in the court’s decision.
Avoid asking questions that may relate to protected grounds under human rights legislation. It is often tempting to engage in idle chit-chat such as questions about marriage, children and place of birth. While innocent, such questions relate directly to prohibited grounds. Once you become aware of such information, it is all too easy for an unsuccessful applicant to allege that you did not hire them because of it. As an employer, you will then be forced to prove a negative — that your decision was unrelated to the protected ground in question.
We also discussed the use of social media, particularly in the context of the hiring process. As I have said before, there is nothing wrong with referencing publicly available information, but employers must be cautious in ensuring the information is accurate and relates to the applicant (and not someone with a similar name).
Furthermore, there is always a risk of stumbling upon information related to a prohibited ground of discrimination. For that reason, I always recommend employers have a fixed protocol for online searches and that the search be conducted by someone other than the ultimate decision-maker. They can then filter out the irrelevant information and prepare a report of relevant information for the person making the hiring decision, who can honestly say that they were not aware of any information not contained in the report.
Finally, it is always advisable to clearly record all reasons why applicants were selected or rejected, so a future challenge can be met with a detailed response.
In my next post, I will review our comments on the subject-matter of our respective books: dismissals (and just cause for dismissal in particular) and extraordinary damages in employment law cases.
Stuart Rudner is an HR lawyer and a founding partner of Rudner MacDonald LLP, a Toronto-based firm specializing in Canadian employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at email@example.com. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.