Labour & employment law column by Robert Smithson

According to the Globe & Mail, employers and recruiters are assembling a “blacklist” of people considered unfit for hiring. Apparently, if you are a liar, a loser, or a misfit then the chances are good that your name will end up on such a list.

 

Joann Lublin, in her article, “Blacklisted: One mistake can land you on a do-not-hire list” addresses the “unofficial” practice of listing “undesirable applicants”. Unbeknownst to the individual, his or her job prospects are curtailed by the fact of having been labeled as an undesirable.

 

It seems that the practice of accumulating a list of “do-not-hires” is fairly widespread. One recruiter, mentioned in Lublin’s article, claimed that every headhunter and employer he surveyed on the topic admitted to keeping a so-called blacklist.

 

The fact that recruiting firms (a.k.a. headhunters) and human resources departments keep such lists is perhaps not surprising. To some extent, after all, their job is to weed out undesirables or, as Lublin calls them, “liars, losers and misfits”.

 

In the employment law world, wrongful dismissals eventually come down to a question of money. Looking at how much money a wrongful dismissal might cost in damages, before you leap into firing, is a good strategy for any employer.

 

Understanding the employment context in which the firing took place is a good first step towards estimating the possible damages.

 

Chapple was a restaurant manager employed by Umberto Management Ltd. which operates the Trattoria and Il Caminetto restaurants at Whistler. She had been employed, initially as a food server and later as a manager, between 1994 and 2007.

 

When Chapple’s position was terminated, she sued for wrongful dismissal and was awarded 15 months’ pay in lieu of notice. It was the calculation of the resulting damages which was notable.

 

As a restaurant manager, Chapple earned a base wage and also had two sources of tips. Her gratuities came primarily out of a so-called “house gratuity” and she also received some tips directly from customers.

 

A recent Globe & Mail article told of some companies which have adopted an unlimited vacation policy for certain employees. This strikes me as a short-term trend which won’t have much staying power.

 

It seems the concept of unlimited vacation is part of a Results Only Work Environment (ROWE) model. ROWE originates in a book, by authors Ressler and Thompson, called “Why Work Sucks and How to Fix It”. 

 

The essence of ROWE seems to be that employees are free to do as they like as long as their assigned duties get completed.

 

ROWE apparently hasn’t been embraced on a widespread basis just yet, but at least a couple of companies have gone with the unlimited vacation concept for certain of their employees. Netflix (the U.S. based movie rental company) and IBM have, to a certain degree, freed themselves from allotting and tracking employees’ use of annual vacation.

 

 

The B.C. Court of Appeal recently upheld the premise that perceiving a person to not have a disability does not constitute discrimination. It’s amazing, to me, that this issue ever actually reached our Court of Appeal.

 

In 2004 Rex Yuan was involved in a traffic accident. Another vehicle struck the rear of Yuan’s vehicle while he was stopped at a red light.

 

Yuan made a claim for personal injuries with the Insurance Corporation of British Columbia (ICBC). He asserted that, as a result of the accident, he suffered soft tissue injuries to his neck and shoulder.

 

Because the other vehicle was determined to have been traveling at a very low speed when it struck Yuan’s car, his claim was adjudicated pursuant to ICBC’s low velocity impact (LVI) guidelines. Those guidelines effectively create a presumption that a low velocity accident victim is less likely to sustain injuries. 

 

As a result of its scrutiny of the circumstances of Yuan’s accident, ICBC rejected his claim. Yuan responded by filing a complaint against ICBC of discrimination pursuant to the B.C. Human Rights Code.

 

Now that we’re into the first January of a new decade, it’s as good a time as any to assess how we perform our jobs on a day-to-day basis. Human resources managers are no different, and here are my five suggestions of things they might consider trying in 2010.

 

First, stop working for employers who don’t share your personal philosophy of employee relations. 

 

The degree to which an employee “fits” in his or her workplace will determine, to a significant degree, his or her likelihood of success. This is perhaps true for human resources managers as much as for any other category of employee. 

 

I frequently deal with human resources people who seem uncomfortable with the way their employer deals with its employees. These people should consider looking for an employer which better matches their own approach.