Immigration Law and Employment Law Collide
In a world where the legal landscape is constantly changing, employers need to be mindful of how changes to the employment environment may affect their workers. One area of concern is when immigration law and employment law collide. This can create headaches for employers.
In many cases, an employee’s immigration status and their employment contract are linked to each other. As a result, when an employer makes significant changes to an employee’s terms and conditions and the employee feels that these changes are unfair or unreasonable, they may be able to claim constructive dismissal toronto. This is a statutory claim that may also trigger a wrongful dismissal claim if the employer has not followed the correct procedure.
Unlike in the United States, where an employer can generally make unilateral changes to the employment agreement without risk of a constructive dismissal claim, most jurisdictions have laws that protect employees from such actions in Canada. For example, in Ontario, the Human Rights Code prohibits discrimination based on an individual’s citizenship or immigration status. In addition, certain provinces have labour laws that set out specific termination entitlements for employees. These laws often include provisions relating to the notice period required for a dismissal and, in some cases, provide an entitlement similar to that of a termination without cause.
How Immigration Law and Employment Law Collide
Immigration law is an increasingly complex field and courts are starting to reflect a recognition that there are vulnerabilities for foreign workers that must be taken into account when making decisions about their employment. For instance, Canadian judges have in recent years ruled that when an employer terminates a temporary foreign worker, it can have a profound impact on their ability to find alternative employment. This is because most temporary foreign workers are subject to work permit restrictions that prevent them from being employed by more than one employer in Canada. In fact, a court once characterized the experience of losing their employment as being akin to being fired in a one-employer town.
Ultimately, it’s up to an employment tribunal to decide whether or not a policy is discriminatory. This will depend on the facts of each case. In the Osborne Clarke v Purohit case, which was decided in 2009 and pre-dates the current immigration system but remains binding on tribunals, it was found that an employer’s automatic rejection policy for roles paying less than PS25,600 per year was indirect race discriminatory against non-British/Irish job applicants. However, if an employer can demonstrate that their policy was a proportionate means of achieving a legitimate aim and there are no other ways to achieve that aim that are less discriminatory, it could be objectively justified.
However, if an employer is not acting in good faith, the situation can become much more complicated. This is because an unfair dismissal claim, if successful, will require the employer to pay compensation to the affected employee for their loss of earnings and damage to their reputation. This can be a very expensive and stressful prospect for an employer.