Employer’s failure to apply for an LMO that led to expiry of foreign worker’s work permit constituted unjust dismissal
Passive employer, unemployed foreign worker
How much is it an employer’s responsibility to ensure a foreign worker it employs has his documentation up to date? When looking to employ foreign workers, employers have to obtain a Labour Market Opinion for the worker before a work permit. But the two items are linked and failure to make a timely application for one can lead to complications.
One employer found out it probably should have paid more attention to the status of the work permit renewal application of one of its foreign workers when it was forced to let him go after the application was rejected. As it turned out, it was a sequence of events that didn’t have to happen the way it did.
Is an employer under a duty to obtain the necessary documents for the renewal of a work permit held by a foreign worker? Can an employer terminate a foreign worker who fails to obtain a work permit when the employer should have assisted him with the process?
These questions arose in the recent decision of Lee v. Anglo-Eastern Ship Management Ltd. as a result of a complaint of unjust dismissal by a foreign worker. An adjudicator of the Canada Labour Arbitration Division (CLAD), held that the employer had to reinstate with retroactive compensation a foreign worker who was in the process of renewing a work permit. The decision implies that the employer was under a positive duty to assist the foreign worker in obtaining a work permit based on prior conduct and expectations.
In Lee, a long-time employee of Anglo-Eastern Ship Management, Siu Wing Enrico Lee, was transferred to Canada from Hong Kong to assume the position of technical officer in 1997. The position was referred to in the offer of employment as “a permanent position.” The employee started as a temporary foreign worker and held a work permit, which was renewed from time to time by Citizenship and Immigration Canada, with the assistance of the employer. As business increased, Anglo-Eastern hired another technical officer, who was a Canadian citizen. This situation continued until Anglo-Eastern experienced a business slowdown due to the economy. After carefully evaluating its options, Anglo-Eastern decided to give notice of termination to the Canadian employee, in consideration that Lee had 21 years of service with the company. Around the same time, the general manager of Anglo-Eastern was requested by Lee to “sign a document relating to the renewal of his work permit.” The general manager drafted a letter in support of the work permit renewal, which Lee sent directly to Citizenship and Immigration Canada. It appears that neither Lee nor the general manager requested any legal advice or assistance from anyone else in the company as to what was necessary in order for Lee to obtain a work permit, nor was there any inquiry made as to how previous work permits were obtained.
Work permit expired while waiting for decision on permanent residency
The evidence showed that while Lee always requested his own work permit, Anglo-Eastern obtained a Labour Market Opinion (LMO), which was part of the documentation submitted to Citizenship and Immigration Canada. However, in this particular instance, an LMO was not obtained. The decision is somewhat obscure as to why that was not done, but it discloses that Lee had applied for permanent residence. It is reasonable to conclude that he thought he would receive it prior to the expiry of his work permit and therefore did not take the necessary steps to obtain an LMO from the company. In any event, his application for a work permit was rejected by Citizenship and Immigration Canada.
The reasons for the refusal were essentially that an LMO was not obtained by the employer, and Lee’s work permit had already expired. Lee was then obligated to apply for restoration within 90 days of the refusal. Lee never informed the general manger of the refusal because he expected the restoration to be granted. However, Anglo-Eastern discovered Lee did not have a work permit and it terminated his employment on the basis that he was not entitled to work in Canada.
Employer rehired Canadian to take foreign worker’s place in permanent job
Anglo-Eastern found itself in a precarious situation due to the fact that Lee was the only technical officer and he could not legally work in Canada. The company turned to the second technical officer — a Canadian citizen — whose services were about to be terminated and requested him to remain on the job. Essentially, the company had to rehire him. The Canadian citizen insisted that he be hired on a permanent basis, to which the company agreed.
In the meantime, Anglo-Eastern assisted Lee in obtaining the necessary LMO and work permit, which was eventually reinstated.
There was some evidence that the general manager made regular enquiries from Lee as to his status. The adjudicator concluded that it was clear from the evidence that obtaining a work permit was primarily the responsibility of the employer, bearing in mind Lee had always been involved in the procedure as the most interested party. In addition, the adjudicator noted that the general manager was aware Lee’s work permit would expire and Lee had applied for renewal as well as for permanent residency. Further, the adjudicator found that the general manager was aware Lee could rectify the situation within 90 days after the refusal of his permit and, at the time of rehiring the Canadian citizen, the general manager was himself involved in assisting Lee with that process. It was then reasonable to conclude the Canadian citizen could have worked as technical officer until Lee was again entitled to work in Canada and there was no reason for the Canadian citizen to have been hired on a permanent basis. The employer had a duty to accommodate the foreign worker and could have made other arrangements rather than replace him on a permanent basis.
In the end, the company was obligated to reinstate the foreign worker with pay retroactive to the date of dismissal, except for the period in which he did not have a valid work permit.
Tips for employers
Lee highlights the need for employers to be proactive in the work permit process for their foreign workers. It also emphasizes the need for employers to be vigilant and to obtain regular updates concerning the process of a work permit application both from the foreign worker and from anyone representing the employer. On a further note, the case also implies employers may be held liable for damages if they do not take the necessary steps to ensure that foreign workers have the required documentation in place to work in Canada on a timely basis and there are no gaps between the time of expiry of a work permit and its renewal date. Employers should endeavor to obtain the appropriate legal advice and take control of the work permit renewal process as it is unwise to leave it up to the foreign workers to do it on their own.
For more information see:
•Lee v. Anglo-Eastern Ship Management Ltd., 2010 CarswellNat 5740 (Can. Adjud. app. under Can. Lab. Code).
