The drastic and negative impact of COVID-19 on the Canadian labour market has forced many employers to lay off and/or terminate the employment of employees across Canada. These terminations trigger employer obligations to support their former employees as they search for alternate comparable employment.
Employers’ obligations are heightened when dealing with temporary foreign workers. This is primarily because of a recognition that temporary foreign workers are usually more vulnerable in the labour market than Canadians or permanent residents. For example, temporary foreign workers often have limited rights, meaning they are usually subject to restrictions, such as limits to the location of their work and what occupation they may carry out. The permit may also state that the worker is only authorized to work with one employer.
If an employee on an employer-specific work permit is fired, not only do they need to find another employer willing to employ them, but they also need to convince an employer to sponsor them for a work permit.
Canadian court decisions have, in recent years, reflected a belief that foreign workers should receive protection against vulnerabilities such as risk of abuse and exploitation, and challenges, such as those relating to finding alternative employment.
Understanding the vulnerability of foreign workers
Most temporary foreign workers in Canada do not enjoy unfettered work authorization. Rather, and most often, foreign workers are subject to legal restrictions, including relating to occupation classification, location, and the period in which they may work. Such restrictions limit a foreign worker’s ability to navigate the labour market following a termination of their employment.
A Canadian judge, recognizing the impact of these limitations on a foreign worker, characterized the experience of a foreign worker losing their employment as akin to being fired in a “one-employer town”.
Further, depending on the permit originally applied for, it can take weeks or even months to secure new work authorization. During this time, although a foreign worker can remain in Canada after having had their employment terminated (if they have a valid work permit or other approved status, such as a visitor), the foreign worker cannot legally begin work with a new employer until a new work permit is issued.
Courts are increasingly recognizing the significant challenges foreign workers face in securing alternate employment, particularly where the foreign worker’s work permit restricts him or her to one specific employer in Canada. As a result, courts have recently awarded temporary foreign workers holding employer-specific work permits larger awards (as compared to Canadians or permanent residents of Canada) to support them in transitioning to new employment.
When a foreign worker is wrongfully dismissed, the court will consider the type and nature of the work as well as the validity period when calculating the reasonable notice period. To deciding a proper notice period to be provided to a foreign worker, it is recommended that employers also consider the type and nature of the work permit being held by the employee as well as the remaining period of the work permit’s validity.
Further, employers that terminate the employment of foreign workers are not under a legal obligation to report the termination to IRCC or to the Canada Border Services Agency (“CBSA”). However, where a foreign worker holds an employer-specific work permit supported by a Labour Market Impact Assessment, the employer is expected to report the termination to Employment and Social Development Canada (“ESDC”).
Open work permit for vulnerable foreign workers
If a foreign worker holding an employer-specific work permit experiences abuse during his or her employment, or the foreign worker’s termination relates to the foreign worker’s attempt to end the abuse, he or she may be eligible for an open work permit. IRCC has specifically created a work permit category to support vulnerable workers that does not require either securing an LMIA or an Immigration approved offer of employment.
The aim of this program is to provide foreign workers who are experiencing abuse, or are at risk of abuse, an avenue to secure alternate employment. This transitional program specifically allows temporary foreign workers to maintain legal status in Canada while looking for other employment.
Applications submitted under this program are processed on an urgent basis, meaning within five (5) business days from the time the application is received by Immigration, Refugees and Citizenship Canada (“IRCC”).
Canadian legislators and courts are increasingly acting in a manner that reflects a recognition of the vulnerability of foreign workers. Employers are therefore increasingly recognizing that they should both plan carefully for the employment of foreign workers and ensure that there are support mechanisms in place for foreign workers. One of the side effects is an increase in the prevalence of legal issues relating to matters such as wrongful dismissal, claims of reprisal, as well as human rights issues.
By Sharaf Sultan, Principal
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