Job opening and interviews
- You have a job opening for a warehouse helper, a position that sometimes requires heavy lifting of up to 25 kilograms. A woman applies for the job. You think that she looks rather petite and you are afraid that she may hurt herself on the job. After reviewing her application, you note that she has some experience in a warehouse, but you advise her that she will not get the job by saying, “I wouldn’t want a little lady like you to hurt herself.”
Upon hearing this she threatens to complain to the Human Rights Tribunal. What might be the prohibited grounds cited? What might you do to avoid a Human Rights complaint in this type of case? Why?
The prohibited ground that are cited in this scenario is sex. “You” did violate the human right legislation in this case, who applied discrimination toward the woman during the interview in this scenario. Specifically, this woman was determined by “you” that she was not able to be competent in this position merely according to her gender. This decision is relatively hasty, which will result a troublesome consequences that “you” will receive a Human Rights complaint from this job candidate. In order to prevent an unnecessary complaint, a further physical ability test will be used to identify her capability to do this job in a safe manner. If she passes the test, she will be qualified for this job. Even if she doesn’t, “you” still can reject her without violating the human right legislation based on a prohibited ground of discrimination, because this job position satisfies the “bona fide occupational qualification” that the qualification is necessary to the performance (Capability of lifting heavy objects up to 25kg) of the job.
- Robin, aged 23, had applied for a position at a nursing home as a nursing aide. She had previously worked part-time as a kindergarten teacher’s aide and had also cared for children with mental and physical disabilities during her high school years. During her initial interview, the assistant administrator told Robin she was an ideal candidate and that she probably would be hired.
Robin was given a pre-employment medical examination form for her family physician to complete. Robin’s Doctor confirmed that she could meet the requirement of being able to lift patients.
At a second meeting, the interviewer reviewed the completed medical form and only then noticed Robin’s hand. During the initial interview, the interviewer had not observed her left hand, on which the index, middle and ring fingers were considerably shorter than those on most hands. After the second meeting, the interviewer and the nursing director spent much time discussing Robin’s disability and the job requirements. Even though they both wanted very much to hire Robin, they believed that she would not be able to cope with the gripping or clasping that is required to lift patients.
Although Robin said that she could perform the duties and had performed similar tasks in her previous job with children with disabilities, she was not hired. On what basis did the interviewers make their assessment that Robin could not meet a specific job requirement? Was Robin discriminated against? Explain why or why not?
The interviewers merely made their assessment on whether Robin could meet a specific job requirement by visual inspection of Robin’s disability on her fingers regardless of the medical confirmation form from her family physician. Robin was definitely discriminated against based on a prohibited ground, which is disability. First of all, the interviewer and the nursing director considered Robin was not able to cope with the gripping or clasping on lifting patients only based on visual assessment on Robin’s disabled fingers. There is no further specific physical ability test follow up to empower the accuracy of their consideration. Secondly, the interviewer neglected the medical confirmation form as a proof of Robin’s capability on lifting patients from her family physician. Moreover, the interviewer also ignored Robin’s previous experience on dealing with disabled children during her past occupation. Even if the interviewer didn’t believe what she said or what she wrote on her resume, the interviewer still did not plan to proceed further investigation or related physical ability tests. Third, assuming Robin can not pass the physical ability test, possible accommodations should be performed until the company meets the undue hardship such as assignment of extra nursing assistant, providing supportive tools or equipment, etc. As a conclusion, without doing all confirmation, investigation, and accomodation above, the interviewer will absolutely violate the human right legislation based on discrimination against Robin’s disability.
- Casmir is a new supervisor who has been in his position for six months. He is hiring for the same vacancy in his department for the third time. He comes to you for advice and when you ask him what his interviewing process looks like he says: “Usually I interview them by myself and ask questions of each person based on what I see on their resume. My job is very busy so while I’ve found some good applicants, by the time I called them the following week after the interview, they had accepted other jobs. So I had to go with my third or fourth choice. Maybe that’s why none of my hires has worked out?” Identify three specific suggestions that you might give Casmir about improving his selection process as a Supervisor and explain the reasons for each of your suggestions.
- You notice an advertisement for a salesperson for a man’s clothing shop that caters to men of small stature, which states that only individuals shorter than 5’ 8” will be considered for a sales position. Is this a violation of Human Rights legislation? Is the clothing shop allowed to do this? Explain fully.
- You meet your friend Clement, for lunch and he is upset. A new buyer has purchased his company and Clement was just told by his supervisor that he is being terminated without cause. Clement is a junior designer and has been with the company for 4 ½ years. He tells you that the company is offering him 7 weeks of pay as severance, and that his supervisor told him that this offer is “quite generous.” He wants to call a lawyer and sue the Company as he tells you, “I am a good employee. I am the most productive on my team and I follow all the rules. This is so unfair.” He asks you for your advice, knowing that you understand Employment Law better than he does. Should Clement accept the Company’s offer or should he retain a lawyer to sue the Company? Explain the pros and cons of each option fully in making your clear recommendation.
Points of view on supervisor’s action on termination of Clement:
- Companies are allowed to terminate employees without cause as long as you are given notice or compensation and have worked there longer than the probationary three months.
- While Clement has done nothing wrong the company can let you go but with notice (or pay in lieu of notice) according to the Employment Standards Act for working there for 4.5 years then you are only entitled to 4 weeks of pay as severance, while the company is offering you 7 weeks pay 3 weeks more than they have to.
Options 1 for Clement:
- If you are unhappy with 7 weeks severance then you could hire a lawyer and sue the company based on Common law, under Common law Clement would be entitled to 2-4 weeks severance for every year worked, since he is a junior designer and not in a senior position we could estimate that clement under Common law would receive 2 weeks for every year worked, since he has worked for only 4.5 years it is rounded down to 4 years times 2 weeks which equals to 8 weeks severance.
Cons for option 1:
- Hiring a lawyer to sue the company is costly, you won’t receive the money until after the trial has concluded (years away).
- If Clement hires a lawyer to fight the company for extra severance then he will only be fighting for an extra 1 week of severance at minimum.
Pros for option 1:
- Clement will get an extra week pay.
Option 2 (Recommended option):
- Accept the company’s 7 weeks of pay as severance.
Cons for option 2:
- Clement will not get the extra one week pay, which is the possible consequence for suing the company.
Pros for option 2:
- If Clement takes the offering of 7 weeks severance then he receives two months of pay today and he can start looking for a new career.
Recommendation:
- For my recommendation I would tell Clement to take the company’s offer of 7 weeks severance and to start looking for a new career. By taking their offer you would receive almost 2 months of pay today and you can spend some time looking for a new career. According to the Employment Standards Act the company is offering Clement almost double what is required by the act, while Clement could hire a lawyer and sue at worst he’s fighting for 1 extra week of severance but with any lawsuit it is not quick and will likely take years to receive any money from the lawsuit, to sue over just one week of severance pay is not worth it as he would spend more in lawyers fees then what the extra week is worth.
- RayForm Company, located in St. Catharines Ontario, was faced with a unionizing drive by the Communications, Energy and Paper Workers union (CEP) targeting employees at the entire location. In a meeting with all employees, before the certification vote, the President of RayForm said: “It is difficult to think of “trying out” a union. Once a union is certified, it is very difficult for employees to undo that decision. Check with the Labour Relations Board or check the law out for yourself and you’ll find how difficult it is.”
Some employees felt that the President seemed to be intimidating the employees. Comment on the words of the President. Briefly describe a company’s rights and limitations, while a union certification voting is pending. Can the Company say they do not want the Union? Explain.
Comments on the President’s words
- Personally, from reading the words of the President I don’t feel as if the president was trying to intimidate the employees but more trying to have the employees to do their research as once a union is formed it is very difficult to get rid of a union.
Company’s rights and limitations
- The company does not lose the right to communicate with its employees just because a union certification voting is going on. While the company does not lose the right to speak with their employees they must be careful as to what and how they say it as crossing this line can result as an “unfair labour practice” and the finding of an “unfair labour practice” can result in fines and other penalties.
- Explain to employees they are free to vote yes or no to unionization but that the company wants to remain union free.
- Provide salary information for similar companies in your area for employees to compare.
- Be proactive by providing information to your employees to have them understand how union and non-union organizations work.
- Correct inaccurate information provided by union organizers to the employees.
- Explain to employees that signing an authorization card doesn’t mean they have to vote yes for the union.
- Remind employees about the costs of belonging to a union such as union dues and potential fines for not obeying union rules.
- Remind employees about the disadvantages about being a union member such as strikes and the requirement to be on a picket line.
- Give employees union-specific resources, such as stats, studies, and union history to make sure that your employees view the employer/company and a reliable source of information.
- Show that the company is willing to listen to employees’ grievances and show them that the company is willing to work with them, with or without a union.
- Make sure employees know that if the employee is fined by the union for any infraction that the union could take them to court resulting in a possible garnish of wages.
Can the company say they do not want a union?
- The company is allowed to voice that they do not want a union but they must be careful in how they express this view to their employees. If the company expresses this in such a way that the employees feel threatened then they would be an infraction and could result as an “unfair labour practice” which can result in fines and other penalties to the company.
Ensure that you identify the specific prohibited grounds, if you find that there is the basis for a Human Rights complaint. Also, make sure that you address the relevant issues in each case and provide an explanation, as needed.
3MP3 – Assignment #2 – Case Scenarios Rubric
Each case scenario will be graded out of 10 marks. Six cases – for a total assignment score out of 60.
Level 1 – Does not meet the standard of University Level Work (0 – 3 marks) Writing is superficially descriptive in nature and lacks analysis. The case response is vague, brief, or not linked to course content. The case response has three or more grammatical and/or spelling errors.
Level 2 – Falls short of the standard of University Level Work (4 – 5 marks) – Writing is mostly descriptive in nature with limited elements of analysis. Submission is vague or brief and shows limited linkages to course content. The case response is choppy and may have two or fewer grammatical and/or spelling errors.
Level 3 – University Level Work with some Shortfalls (6 – 7 marks) – Writing shows evidence of descriptiveness, analysis, and/or reflection. Students make some connections between obvious course content. Written expression is clear and easy to follow. The case response may have one grammatical and/or spelling error.
Level 4 – University Level Work with some Superior Aspects (8 – 10 marks) Writing is rich in description, analysis, and reflection. Students make clear, consistent, and convincing connections between course content and the scenario. The Submission has no grammatical and/or spelling errors. Readers can easily follow the writer.