due-diligence

Reference Checking Rights

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Is honesty always the best policy? When it comes to providing a negative reference about a former employee, the answer is a cautious “yes.”

As HR practitioners, we have multiple obligations, which includes the professional requirement to act in good faith, with honesty and integrity. Furthermore, we must undertake due diligence to meet numerous legal and organizational conditions in order to ensure regulatory compliance. When all of these factors work in alignment, HR practitioners can be reasonably assured that our professional obligations are being met.

Reference checking, as part of the last stage of a candidate selection process, may sometimes stand as a barrier to meeting these obligations. On the one hand, reference checks provide for honest insights from a third-party perspective into the characteristics of a potential candidate. On the other hand, the reference checking process can turn into a minefield of negative consequences if not managed properly, by both the recruiting employer and the employer providing the reference.

An example of the consequences that can arise from providing a negative reference can be found in the case of Papp v. Stokes et al, 2018 ONSC 1598. This case, summarized here, occurred as a result of a former employer stating to a potential new employer that the candidate they were considering had interpersonal issues with former colleagues. As noted in this additional article, the former employer also stated there was “no way” they would re-hire this person. As a result, the person was not hired, and went on to file a civil suit for defamation against the previous employer, based on the negative reference. As noted in both case summaries, the courts found the former employer was not at fault and dismissed the defamation complaint. The decision by the courts was based on the fact that the former employer had provided a truthful reflection about the person that was not malicious in any way.

While this seems to be a ‘winning’ case from the employer’s perspective, it comes with several resultant cautions. References must be based on a factual representation, and must not veer into personal opinion, or that which may be perceived as a malicious attack. This can be done through written reference letters or online questionnaires that provide neutral job-related information about the candidate. In-person reference checking, however, may be influenced by both tone and subjective perceptions about what is being communicated in relation to a particular candidate. Even though the risk of a lawsuit may be low, no employer wants to find themselves on the receiving end of a claim that may not be defensible, both in evidence and in fact.

What is an HR practitioner to do? Ensure that the evidence and facts reflected in each decision-making step of the employee selection process, including reference checking, is based on due diligence, good faith, honesty, and integrity.

Discussion Questions:

  1. As a job candidate, what steps can you put into place to ensure your references provide accurate information about you to a prospective employer?
  2. From an HR perspective, what types of protocols do you think should be put into place to reduce the risks of negative reference checks?
  3. What will you do when you are asked to provide reference information about a former employee who was a poor performer and had ‘attitude issues’?

Upholding The Reasonable Rule of Law

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As Human Resources professionals, we work within very specific legislative parameters.

This applies directly to the need for compliance with health and safety legislation. Our role is not just to ensure that the employer and the organization adheres to the principles and practices of safety requirements – it is to ensure that all persons (including employees) keep the workplace safe for everyone.

The concept of ensuring a safe workplace for everyone, seems to be one that is reasonable within the eyes of the law. A recent legal decision in Saskatchewan outlines and confirms that reasonable safety requirements from both the employer and employee perspective must be followed. In this case, an employee was dismissed for just cause, by the employer, for failing to comply with numerous safety practices.

The former employee filed a claim for wrongful dismissal. This claim was rejected by the courts. The former employee filed an appeal, which was also rejected by the courts, and the termination of employment for just cause was upheld.

Click here to read about the case: Balzer v. Federated Co-operatives Limited.

What becomes very clear, through this brief case analysis, is the fundamental role of ongoing training and monitoring by the employer to ensure safety compliance in the workplace. This is not a case of a single incident leading to tragic consequences due to an accidental error on the part of the employee. All too often, employers do not act until there has been a critical workplace incident or even a fatality before taking action against the employee.

This case shows us that the courts look for the direct trail of evidence. One that proves whether or not the employer acted in a reasonable fashion to guide, monitor and direct the employee in order to keep the workplace safe and in order to avert the reality of potential tragic consequences.

Feeling and being safe at work is reasonable for everyone.

Discussion Questions:

  1. As the Director of Human Resources in this situation, what additional actions would you take to ensure that safety requirements are met by all employees?
  2. Do you agree with the termination for just cause in this case? Explain your rationale.
  3. Why do you think some employees do not report safety infractions? What are the risks and benefits to employees for ‘keeping quiet’ about safety concerns?

 

Honest References Required

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Is honesty the best policy when dealing with reference checks?

There should only be one answer to this question.

That answer is a resounding: ‘Yes!’

If only the reality of recruitment practices reflected this basic principle during the reference checking process. Unfortunately, there are numerous examples of the recruitment process failing at the very end, due to dishonest approaches by either the candidate or the potential employer in an effort to get the recruitment job done and to get the candidate into the job itself.

The most common example comes from the assessment of the candidate’s personal or behavioural attributes. Many employers fear the threat of a lawsuit if they provide a negative reference for a former employee. Rather than telling the ‘truth’, however, employers find themselves giving neutral information that says nothing at all about someone’s conduct or professional behaviour. Many organizations have a policy that restricts reference providers to giving fact based information only, such as confirmation of employment history with no performance or behaviour related commentary. While not dishonest, this approach may not provide the reference checker with a full picture of the candidate’s behavioural profile.

A recent decision by the Ontario Supreme Court has relieved this burden of neutrality on the part of the employer. This case establishes a precedent that an unfavourable, and yet honest, opinion of the former employee is acceptable.

Click here to read about the case

On the employer side, manipulation and dishonest practices have also left a stain on the integrity of recruitment practices. Sometimes recruiters themselves make fraudulent claims about a candidate in order to get that person into a position and collect the resulting monetary reward. The results from these types of actions are extremely costly and severely damaging. The need for ethical and honest practices on the recruitment side are explored in a recent article posted in HRM On-line magazine.

Click here to read the article  

What does good HR practice require us to do?

Allow for time to get integrity-based reference checking done right.

HR practitioners need to plan and prepare for this final stage of the recruitment process with the same amount of focus, integrity and due diligence that has gone into all of the previous recruitment and selection steps. There is no benefit from rushing and manipulating the reference checking process just to get through the final stage as quickly as possible.

The investment in making a sound hiring decision is just as important at the end as it was in the beginning. The constructive results from an honest and integrity-based process all the way through will always prove to be the right way to go.

Discussion Questions:

  1. Thinking of your own situation, who will you approach for professional and constructive references in your job search?
  2. As an HR practitioner, what steps can you put into place to ensure the integrity of the reference checking process?
  3. If you found out someone gave a bad reference for you, what actions would you take?
  4. How will you respond to someone who asks you for a reference that you would not be able to support?

 

 

Is it a health and safety inspection or investigation?

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For most, it is difficult to know the difference between a safety inspection and a workplace safety investigation. It is vital that all HR and safety professionals know the distinction between the two.

When a Ministry Safety Officer enters your place of business, do you always wonder what the purpose of their visit is? Is it an inspection or is it an investigation?

Cynthia Sefton, a legal partner with Aird & Berlis LLP in Toronto, explains the vital differences. “An inspection is not an investigation, although it can lead to one,” she says. “The inspector comes to see if there is compliance. The decision to investigate a possible offence comes later.”

Click here to read the complete article

Typically, safety inspections come first, with an investigation following the inspection if the safety officer deems it necessary. In addition, there may be certain events that trigger an investigation right away, such as a critical injury that occurs in the workplace as defined by legislation.

It’s fundamental to understand the concept of compliance and due diligence. All Occupational Health and Safety (OHS) legislation in Canada works on the principles of general duties, minimal standards and due diligence. All workplaces that are covered by OHS legislation must ensure they meet the minimal safety standard that is outlined in the legislation. Those standards must be reasonably achieved in all circumstances.

If you are not meeting the minimal standards you are by default not in compliance with the OHS legislation. The main purpose of ministry safety inspections is to identify if an organization complying. When they do that, the inspector can decide how to proceed.

Every year most provincial health and safety jurisdictions pick a combination of specific industries or safety hazards on which to focus. For example, the MOL of Ontario for 2019 have safety inspection blitzes in construction, health care and mining services planned.

Click here to read more about the Ontario safety blitzes

In addition to inspection blitzes, each jurisdiction gives its health and safety inspectors the power to write orders. There are different types of orders a health and safety inspector can issue. The three most common ones are: 1) stop work, 2) forthwith and 3) a compliance order.

Click here to read about the powers of a safety inspector in Ontario

HR and safety professionals have to be aware of the subtle differences between a safety inspection and a workplace safety investigation, as well as being aware of their rights and their responsibilities under their local OHS laws.  It is a large legal liability that is best addressed with a proactive safety program long before an inspector comes to visit for an inspection or an investigation.

Discussion Questions

Can you identify the powers of the safety inspectors in your jurisdiction?

Review under what circumstances an inspector in your jurisdiction will be required to conduct a workplace investigation.

Identify in your jurisdiction if the governmental safety department has identified any industry or topic specific safety blitzes.

 

 

The Deadliest Catch of All

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Tabor Chichakly/Shutterstock.

The start of lobster season, known as “Dumping Day,” is traditionally the last Monday in November. It’s the day fishers head out off the southern coast of Nova Scotia and set their traps for a potentially lucrative lobster haul.

It’s a way of life for many easterners, but it also comes with its inherent dangers out on the rough north Atlantic Ocean.

In 2015, a 53-year-old man died after going overboard in his vessel while setting traps, and in a separate incident, two other men went overboard doing the same thing, but were ultimately rescued.

It is always heartbreaking for the family, as well as the community, following a death of a worker.

Unfortunately, the sad reality is, it’s not unusual for fatalities to occur in the workplace in Canada.

According to a Globe and Mail report, the fishing industry is the deadliest sector of all occupations in Canada. It has almost 70 deaths per 100,000 workers (covering a period from 2011 to 2015), which is seven times higher than the fatality rates in construction.

This is unacceptable, and the fishing industry needs to take action to lower that rate.

Another article by the CBC sheds light on the discrepancy in workplace fatality statistics in Canada.

The Association of Workers’ Compensation Board of Canada has the official number at 1,000 deaths per year, but according to a study, the rate is much higher – almost 10,000 fatalities during that same time frame.

The lowball figure occurs because of the way that we collect statistics on workplace fatalities. Our reporting method is way too narrow and should be adjusted to reflect the real toll on workers lives.

What factors are affecting this under-reporting of fatalities in Canada? There are many factors, including:

  • Workplace fatalities where the worker is not covered by a provincial workers compensation system and therefore not counted
  • Fatalities occurring on farms may not be reported
  • Many deaths caused by vehicles may be categorized incorrectly.

HR and safety departments need to ensure that systems are in place that focus on safety prevention. They also need to make certain that their organization does not add one of their workers to the workplace fatality number.

Discussion Questions

What can industries due to help improve the collection of workplace fatality statistics?

What role should the federal and provincial governments play in reducing the number of workplace deaths in Canada?