Employer Liability for Neglecting Immigration Law Changes in Workforce Planning

In a judgment released January 3, 2017, the Human Rights Tribunal of Ontario awarded $20,000 to a foreign worker who complained that he was terminated due to both his ethnic origin and a disability he developed on the job. The case underscores the need for employers to remain abreast of changes to immigration policies and related employment laws affecting their workforce.

The applicant in the case, Ben Saad, was originally from Tunisia but came to Canada in June, 2014 to work for the respondent, Windsor Management. In November, 2014 he was injured at work when a closing rolling steel door struck him in the head as it descended. Eventually Mr. Saad was found to have a compressed fracture of the lumbar spine. While he provided Windsor Management with a doctor’s note stating that he would need to take one month off work, he was pressured to return to work sooner. Mr. Saad returned to work after one week. He was put on light duties but was pressured to return to regular duties.

Mr. Saad’s employment was terminated, and in response, he filed a human rights complaint against Windsor Management, which eventually led to a hearing at the Ontario Human Rights Tribunal (the “Tribunal”). The respondents failed to attend the hearing.

Mr. Saad argued that disability and ethnic origin, both protected grounds under the Ontario Human Rights Code, were factors that led to the termination of his employment. In regards to disability, his legal team produced numerous doctor’s notes that had been provided to the respondents, and Mr. Saad testified about his experience being pressured by the respondents to return to work, contrary to his doctor’s advice.

In regards to ethnic origin, Windsor Management took the position that they terminated the applicant because of a slowdown of work and because they understood, at the time, that changes to the regulatory environment relating to foreign workers obliged them to reduce the proportion of foreign workers under their employment. In particular, the respondents claimed that they acted on the belief that the Temporary Foreign Workers Program (“TFWP”) was being changed such that employers were only permitted to have 30% of their workforce comprised of foreign workers. The applicant disclosed a series of emails, memos from the Workplace Safety and Insurance Board, and various notes, which he testified about during the hearing. The applicant argued that these documents showed that the respondents continued to inquire about hiring foreign workers around the same time as, and after, they terminated Mr. Saad’s employment. Unfortunately for the applicant, these documents also demonstrated that the employer believed they had to reduce the proportion of foreign workers in their workforce, both because of a slowdown in business and because of regulatory changes.

On the matter of disability, the Tribunal ruled that Mr. Saad established that disability was a factor in the termination of his employment. In particular, and based on the documents produced, the Tribunal found that Mr. Saad’s employment was terminated, in part, because of his poor attendance at work, which, the Tribunal found, was directly related to his disability.

In regards to the claim of discrimination based on ethnic origin, the Tribunal found that Mr. Saad failed to establish a prima facie case of discrimination based on ethnic origin. In reaching this conclusion, the Tribunal specifically noted that Windsor Management believed that changes to the TFWP meant they had to terminate the employment of some foreign workers in order to remain compliant with the law.

This case highlights the important intersection of immigration and employment law in the Canadian labour market and the need for employers to ensure they properly integrate changes in employment, immigration and human rights law/policies into workforce planning. As ignorance of the law is no defence, employers could be liable for significant penalties and related damages if they are found in violation of employment, immigration or related human rights laws.

For further information on this topic please contact at Sultan Employment Law and Workplace Immigration.