The importance of documentation when dealing with a human rights complaint

March 26, 2014 Christina Catenacci and Yosie Saint-Cyr, LL.B. Managing Editor Human Resources, Human Rights, Recruiting and Hiring

Image: adamr | freedigitalphotos.net

This human rights case demonstrates the importance of preparing and maintaining proper documentation when interviewing job applicants for a position with the employer. In fact, the notes of the hiring manager in this case highlighted the fact that there were other reasons for not hiring a job applicant—and those notes likely prevented the employer’s liability.

In Mike Zalenchuk v. North of Sixty Camps Ltd., 2014 CanLII 3942 (NT HRAP), the job applicant accused the employer of age discrimination. He alleges that the employer did not hire him because he was 75 years old.

In his claim, the job applicant stated that he applied for a job at a camp as outpost manager and cook. He received a call saying that he got the job. During this conversation, the applicant made plans to go to the camp with the opening crew, so they made some arrangements regarding a meeting place.

Then, the applicant was asked if he had a fax number so he could be sent some pre-employment forms. He said he did not, but suggested the employer could pay him at the end of the season. He also stated that he was not concerned about Employment Insurance contributions because he was past the age he could claim EI. So, it was agreed the employer would pay him at the end of the season and not bother with deductions.

Then, the applicant was asked, “by the way, how old are you?”, and he replied that he was 75 years old. He said he was in good shape and his doctor said he was in very good health. The next thing you know, the applicant got a call saying the employer hired someone else, and he would not be needed.

The employer had a whole different story.

According to the employer, they have several camp locations. They agree there was an initial call but no job offer. The employer called all five candidates on the top of the list to tell them about details regarding the job. The focus during the call was explaining about the job to confirm there was still interest and learning about the applicant’s experience. The request for a fax number was to send employment forms before the person responsible for hiring employees for the various camps hired anyone. However, that person stated that they did not recall asking for the job applicant’s age.

The second call was not to say the employer hired someone else, but to explain to all five candidates that a certain camp was not opening because it was iced in.

Who is telling the truth?

Did the employer really ask for the job applicant’s age during the hiring process? And, was age a reason he was not employed?

The Northwest Territories Human Rights Adjudication Panel found that the job applicant’s evidence was credible, that he told the employer his age at some point in the telephone conversation.

I find Mr Zalenchuk’s [job applicant] evidence on this point credible and reliable. He had reason to remember the question. He provided detail about the conversation. His memory was clear. His memory is not inconsistent with the documents. It was also consistent with the rest of his evidence. Ms Bellinghausen [employer representative] has no memory about this so Mr Zalenchuk’s evidence is not inconsistent with her memory of the conversation. Ms Bellinghausen also acknowledged it is possible she asked Mr Zalenchuk his age.

However, it was clear from the employer’s evidence, notes taken during the selection process, that the reason the applicant was not hired was because the camp was not opening and had nothing to do with age.

Ms Bellinghausen [employer representative] said the Flett Lake camp was not opening and this was the reason she did not offer Mr Zalenchuk [job applicant] a job. She produced her notes which are consistent with this recollection – there are notes about Flett “not opening” and she was to call some people – one of whom was “Mike Zalenchuk” – to tell them it was not opening.

The employer also insisted she told the applicant about the job; she did not offer him the job.

Since the applicant could not refute the evidence provided by the employer, and there is no connection between the asking of the applicant’s his age and the applicant not being employed by the employer, the complaint failed and was dismissed. The employer did not discriminate against the applicant based on age.

What is the lesson?

Human rights legislation in each Canadian province or territory make it illegal to discriminate in employment matters on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed (religion), sex, sexual orientation, handicap (disability and perceived disability), age, marital status, same-sex partnership status, family status, and record of offences. (Grounds may vary depending on the province or territory). This is to ensure that the principles of equal opportunity and non-discrimination are followed in all areas of employment.

Employers must recognize that human rights legislation places statutory limitations on the content of application forms, the pre-screening process, the interview, medical inquiries, and, under the employer’s duty to accommodate persons with disabilities, even the right to hire an employee who is fit to perform the essential duties of the job.

Applicable human rights legislation can be complied with by assessing candidates based on the relevant aspects of the job, and not extraneous factors that could overlap with prohibited grounds of discrimination. This is the case when asking questions on the job application, during interviews, or when making final hiring decisions. It is important to document the reasons why a candidate was or was not preferred during the selection process, citing reasons that do not have anything to do with a prohibited grounds of discrimination.

It is important to remember that an employer who asks questions related to a prohibited ground of discrimination (listed above) during an interview is skating on thin ice. It is not recommended that an employer ask questions that could be viewed as discriminatory.

Practically speaking, this means that employers must keep records of all interactions with the job applicants, all applications and résumés, all notes when interacting with the applicants, and the job description that pertains to the position. Moreover, employers should keep in the file all test results, notes from checking out the applicant, and job offers. Although not indicated in the law, it is recommended to keep these records for a year from the date the successful applicant is hired for the position in question.

Moreover, employers are strongly recommended to keep proper documentation regarding the recruiting and hiring process, including all conversations with job applicants, notes about thoughts regarding hiring, and any other pertinent information (for example, in this case, a worksite being iced in).

The Human Resources Advisor

For more information on applied principles, best practices and strategies in your recruiting and hiring process for your jurisdiction, consult The Human Resources Advisor. The A-Z manual provides you with legally-reviewed answers to your daily employment law and payroll questions.

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Yosie Saint-Cyr, LL.B. Managing Editor

Managing Editor at First Reference Inc.

Yosie Saint-Cyr, LL.B., is a trained lawyer called to the Quebec bar in 1988 and is still a member in good standing. She practiced business, employment and labour law until 1999. For over 18 years, Yosie has been the Managing Editor of the following publications, Human Resources Advisor, Human Resources PolicyPro, HRinfodesk and Accessibility Standards PolicyPro from First Reference. Yosie is one of Canada’s best known and most respected HR authors, with an extensive background in employment and labour across the country. Read more

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more

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