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At some point during the recruitment stage, an employer should ask for a candidate's references. If the application and interview process has identified one or more possible selections, it is imperative that the employer checks those references. It is a simple, cost-effective step that can help to screen out inappropriate candidates. Although some employers believe that references are of little value as the candidate will only include those references that would be most likely to give a favourable review of the candidate, there are important reasons to check references. First, a former employer may be willing to confirm the information provided by the candidate on his or her job application. This is important to ensure that the employee has not made false or misleading statements in his or her application.
It is a good idea to ask the former employer if it has a policy with regard to giving references. If the former employer's policy is to provide standard references based on general information in the record of employment, the reference is not likely to be as helpful. However, the following information from the former employer would certainly be useful: performance, salary increases, discretionary bonuses, the candidate's ability to get along with peers and supervisors, and the reasons for the candidate's departure.
Many of the common misrepresentations made on application forms can be easily caught by taking the following steps as part of a routine recruitment policy:
• Check references to verify information provided and if possible, job performance and reason for departure.
• Require the candidate to provide copies of documents verifying such information as educational credentials.
• Request copies of other corroborating information such as performance evaluations, if available.
Include a verification clause to be signed by the candidate and make it clear that any misrepresentation in any document, including an application form and a resume, may lead to the employee's termination.
Employers should also be aware of their obligation to give references for departing employees. Failure to give a reference for a former employee could, in some circumstances, add exposure for increased damages in a successful wrongful dismissal case. In Humphrey v. Maritime Paper Products Ltd an employer refused to provide a reference for an employee who was laid off, unless the employee agreed to the terms of a severance package. The Court determined that the refusal to provide a reference letter was likely the only reason why the employee was unable to find a new job after his layoff and awarded the employee 12 months' salary including overtime.
Criminal Record Checks
On the topic of discrimination against an individual on the basis of a record of offences, the term "record of offences" is defined in section 10(1) of the Code as follows:
"record of offences" means a conviction for,
(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or
(b) an offence in respect of a provincial enactment
This provision means that it is not a violation of the Code for an employer to discriminate against an employee or prospective employee based upon a conviction under the Criminal Code, unless the individual has been granted a pardon. However, it is a violation of the Code to discriminate against an employee who has received a pardon or who has been convicted of an offence under a provincial statute, for example careless driving under the Highway Traffic Act, or public drunkenness under the Liquor Control Act.
Obtaining information regarding a criminal record is often found to be a difficult matter for individual companies to facilitate. The Commission's guidelines suggest that an employer may ask prospective employees if they have been convicted of an offence under the Criminal Code for which a pardon has not been granted, but not whether an employee has ever been convicted of any offence, arrested or spent time in jail. Criminal records are considered "personal information" under the Freedom of Information and Protection of Privacy Act (the "FIPPA").The FIPPA applies to government employees. Under this legislation, a civil servant or police officer is not entitled to release information about a person's criminal record, without the consent of that person but if you are compliant, the existence of a criminal record serves:
A As a point in which to explore further interview questions or
B. Simply verifies the truthfulness of the answer provided to you on the completed application.
About the Author:
Ron LeClair, LL.B. is a partner working in the London office of Filion Wakely Thorup Angeletti LLP, practicing in all areas of labour and employment law, including human rights and occupational health and safety matters.
Ron articled with the firm and, after being called to the Bar, continued to practice labour and employment law exclusively before rejoining the firm in 2001.
Disclaimer: The views and opinions expressed in this article are strictly those of the author. CPSA does not endorse any of the companies, products and services mentioned within this article.
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