Issuu

HR INSIGHTS

September 2026

SARC’s Human Resources and Labour Relations Newsletter

#29 LEGISLATION AND LANGUAGE IN THE WORKPLACE

In this issue, consultants from SARC and MLT Aikins discuss topics of recruitement and retention in the workplace.

Contents Hiring With Care: Legal Considerations for Non-profit Organizations

Amy Gibson

Beyond the Traditional Career Fair: A Strategic Approach to Recruitment

Bobbi Janzen

Promotion Clauses Impacting Recruitment and Retention in CBAs

Scott Mostoway

Article Contributors About Bobbi Janzen Bobbi identifies and fosters strategic partnerships with education, labour, other workforce organizations, and community partners to address Disability Service sector workforce needs and assists with talent supply and demand. She also leads workforce promotion strategies to connect job seekers to the Disability Service sector. Bobbi applies her background in talent acquisition, recruiting, and disability sector advocacy to this role and connects with our Members to learn more about the sector’s workforce needs. Bobbi is available to consult with SARC’s Regular and Associate Members on their workforce development inquiries, including recruitment and retention strategies, job descriptions, HR policies and procedures, compensation/total rewards, and succession planning.

Bobbi Janzen SARC Workforce Development Coordinator

About Scott Mostoway Scott can assist SARC’s Regular and Associate Members with a variety of LR/HR issues, including progressive discipline, performance management, and duty to accommodate for unionized and non-unionized organizations. He can also provide specific support in collective bargaining for unionized organizations. Accessing this service is free of charge and can minimize organizational risk. Having a quick check-in or a review done before decisions are made can save you time and money in the end. Scott Mostoway SARC Senior Labour Relations Consultant

About Amy Gibson Amy Gibson carries on a general labour and employment law practice. She advises employers on a variety of labour issues, including union certification drives, collective agreement interpretation, labour disputes, workplace policies, discipline and discharge, employment contracts, OH&S, workers’ compensation, labour standards and human rights. She has experience with a variety of court and administrative proceedings as well as representing clients before the Saskatchewan Labour Relations Board and in Canada Labour Code unjust dismissal adjudications.

Amy Gibson Lawyer, MLT Aikins

HIRING WITH CARE: LEGAL CONSIDERATIONS FOR NON-PROFIT ORGANIZATIONS Amy Gibson

Partner, MLT Aikins LLP The recruitment process carries important responsibilities. Beyond finding the right candidate, employers must navigate a range of legal issues to protect both the organization and the people it serves. This article provides an overview of key legal considerations to inform your hiring practices. Human Rights Obligations Begin Before Hiring One of the most important legal principles for employers to understand is that human rights protections apply to job applicants, not just existing employees. The Saskatchewan Human Rights Code, 2018 provides protections for job applicants from discrimination on the basis of protected characteristics, including religion, creed, marital status, family status, sex, sexual orientation, disability, age, colour, ancestry, nationality, place of origin, race, receipt of public assistance, and gender identity.1 Accordingly, employers have a duty not to discriminate against job applicants during the hiring process. This means: 1. job requirements should be tied to the actual requirements of the job, such that they do not improperly exclude persons with protected characteristics; 2. the application should not ask applicants to disclose protected characteristics unless absolutely required for the job; 3. the interview questions should avoid any potentially discriminatory questions, unless they are absolutely relevant for the job;2 and

4. where a candidate has a protected characteristic that requires accommodation, the employer has a duty to accommodate to the point of undue hardship. Employers who do not follow these principles may be found to have discriminated during the hiring process. If a protected ground requiring accommodation is disclosed, the employer should consider getting legal advice to the specific situation to determine the appropriate accommodation process. For example, if a job applicant who does not have the mandatory qualifications for the position identifies an accommodation issue in their application, the employer may not need to do an accommodation analysis as the individual simply does not qualify for the position. In contrast, if one of the final candidates discloses an accommodation issue in their last interview the employer will likely need to consider whether, after the employer fulfilled its duty to accommodate, that individual would be the best candidate. Reference Checks: Balancing Due Diligence and Legal Risk Reference checks are a standard part of the hiring process, and thorough vetting is essential for organizations serving vulnerable populations. However, both requesting and providing references carry legal considerations. Where an employer provides a bad or untrue reference regarding a former employee, it is possible that a defamation claim could be initiated. An employee

The Saskatchewan Human Rights Code, 2018, SS 2018, c S-24.2, S.2(1) Note that the Saskatchewan Human Rights Commission does provide some guidance on its website about appropriate questions during the interview process:https://saskhrc.ca/education-resources/information-sheets/a-guide-to-application-formsinterviews/ . 1 2

seeking to sue someone for defamation with respect to a bad reference needs to prove: 1. the impugned words were defamatory, in the sense that they would tend to lower the employee’s reputation in the eyes of a reasonable person; 2. the words referred to the employee; and 3. the words were published, meaning that they were communicated to at least one person other than the employee. 3 The defence of “qualified privilege” protects employers who provide candid references. Courts have emphasized the importance of candour for persons providing employment references, noting that “an employer must be able to give a job reference with candour as to the strengths and weaknesses of an employee, without fear of being sued in defamation for doing so. Without this protection, references would either not be given, or would be given with such edited content as to render them at best unhelpful or at worst misleading to a prospective employer.”4 However, this defence does not apply where statements are motivated by malice. Employers concerned about legal risks may wish to restrict official references to confirming prior employment, length of service, and positions held. Employers should also be wary of reference checks received for candidates which only confirm this information as potentially signaling past employment issues. Employee Dishonesty During Hiring For organizations working with vulnerable populations, discovering that an employee was dishonest during the hiring process is particularly concerning. Can an employee be terminated for cause for lying during hiring? There is no hardand-fast rule. Courts still consider whether the employee engaged in misconduct is incompatible with the fundamental terms of the employment relationship. The Islip v Coldmatic Refrigeration of Canada Ltd.5 and Aboagye v Atomic Energy of Canada Ltd.6 decisions are useful demonstrations of this point. In Islip, Mr. Islip had deliberately misrepresented the amount he was receiving as salary from his previous employer during the pre-hiring

process. He told the hiring employer that his annual salary was $75,000, when he was only receiving $61,000. However, the Court found that this misrepresentation was not of such a serious nature to give the hiring employer grounds to dismiss Mr. Islip from his employment for just cause. The Court noted that his previous salary was not of critical importance to the new employer, because the new employer’s real goal was to acquire the prior employer’s business, and hiring of Mr. Islip was required to do so. The evidence supported that hiring of Mr. Islip would have occurred whether or not he had been truthful about the reason for the salary he was seeking. The Court awarded Mr. Islip one year’s salary as well as money reflecting other benefits he would have received had his employment not been terminated. The Aboagye decision reaches a different result, on very different facts. Mr. Aboagye had been hired by the leading nuclear agency, Atomic Energy of Canada Limited, as an Industrial Safety Specialist. All employees were required to obtain security clearances, and six months into his employment, the employer discovered that Mr. Aboagye had not been truthful in answering questions on the security questionnaire. Specifically, Mr. Aboagye had indicated that he was unemployed when he was actually employed. The employer also learned that Mr. Aboagye had lied about his whereabouts when the employer had difficulty contacting him to extend an offer of employment. Mr. Aboagye had told the employer he was attending his father’s funeral in Africa, but he later admitted this was not true and he had actually been working for his former employer at the time. Based on his failure to disclose his employment and his lie about not being employed, Atomic Energy terminated his employment. The Court upheld that termination. It noted that Atomic Energy operates in a highly regulated environment that requires compliance with Government of Canada security processes and procedures. Mr. Aboagye had misled his employer in this heightened national security context. The Court concluded this was the most serious form of dishonesty that went to the core of the employment relationship and justified termination of his employment.

See e.g., Graham v Purdy, 2017 SKQB 42 at para 61. See para 27 of Kanak v Riggin, 2017 ONSC 2837, appeal dismissed, 2018 ONSC 345. 5 Islip v Coldmatic Refrigeration of Canada Ltd., 2002 BCCA 255 [Islip]. 6 Aboagye v Atomic Energy of Canada Ltd., 2016 ONSC 8165, aff’d 2017 ONCA 598 [Aboagye]. 3 4

Practical Tips

Conclusion

Based on the above, the following list provides some suggestions on “best practices” for employers during the hiring process:

By understanding your legal obligations—from human rights protections for applicants to the nuances of reference checks and employee dishonesty—you can build a hiring process that is both legally compliant and effective in identifying candidates who will fit well within your organization. When in doubt about specific situations, seeking legal advice early in the process is recommended and can save the cost and inconvenience of defending complaints or claims in the future.

1. Maintain thorough hiring notes. Given the potential for challenges to hiring decisions, keep documentation including the job posting, all documents received from applicants, interview notes, notes from communications with references, and documents reflecting the decision-making process. An employer’s reasons for its hiring decisions take on particular importance where a characteristic related to a prohibited ground of discrimination is raised. It is recommended that such records be kept for the duration of the successful employee’s employment and for 2.5 years after their employment ends. For unsuccessful candidates, it is recommended that such records be retained for a period of 2.5 years in the event a human rights complaint or other civil action is commenced. 2. Develop and follow an interview guide. Employers should develop questions in advance and screen those questions through the lens of potential human rights claims. The interview guide should then be followed during the interview. This reduces the potential for interviewers accidentally asking questions that relate to protected characteristics and provides a document to use in responding to a potential human rights complaint. 3. Use written employment agreements with enforceable language. Hiring is the beginning of the employment relationship and the best opportunity to implement an agreement containing favourable terms. Key elements include clearly identifying salary or wage, vacation and benefits, notice entitlements on termination, applicable policies, and any probationary period. Given the many pitfalls that can render employment agreements unenforceable, seeking legal advice before finalizing your template agreement is worthwhile.

BEYOND THE TRADITIONAL CAREER FAIR: A STRATEGIC APPROACH TO RECRUITMENT Bobbi Janzen SARC Workforce Development Coordinator Saskatchewan’s labour market continues to evolve, and employers are adapting how they attract, recruit, and engage talent. Job seekers are also placing greater importance on workplace culture, career development, organizational values, and knowing what to expect throughout the hiring process. Thoughtfully planned recruitment initiatives can respond to these priorities and strengthen connections with potential candidates. Traditional recruitment methods, including career fairs, remain valuable, but their role is evolving. Combining larger events with smaller, targeted opportunities can help employers reach specific audiences and create meaningful connections before, during, and after recruitment events. Career Fairs: Building Connections and Awareness Large career fairs allow employers to meet a wide range of job seekers in one place. Some conversations may lead directly to applications, while others may develop into relationships that support future opportunities. Because larger events can require a significant investment of time and resources, employers may wish to consider which events best align with their recruitment needs and target audiences. For some organizations, smaller events may provide more time for meaningful conversations and a costeffective way to connect with specific groups. Career fairs also provide opportunities to build organizational visibility, highlight career opportunities, and share information about workplace culture and values. They can connect employers with people who may not be actively looking for work but are interested in learning about future opportunities.

Understanding the audiences an organization hopes to reach can help determine which events are the best fit. Career fairs may attract high school and post-secondary students, newcomers, Indigenous job seekers, career changers, and experienced professionals. Candidate expectations are also important. While some job seekers may expect an immediate hiring decision, many organizations have multi-stage hiring processes, background checks, or other requirements. Others may simply be exploring future career options. Clearly explaining the hiring process, next steps, and timelines can help candidates understand what to expect and contribute to a positive experience. Creating More Opportunities to Engage Recruitment does not have to depend on a single event. Employer pop-ups, virtual showcases, information sessions, networking events, employer spotlights, and community-based initiatives can complement career fairs and provide additional ways to connect with potential candidates. These approaches can be particularly useful when an employer wants to reach a specific audience or provide more information than is practical during a busy career fair. Virtual events can also offer a convenient and often low- or no-cost way to connect with people who cannot attend in person. For example, an employer spotlight before a career fair can introduce candidates to an organization, its available positions, workplace culture, and hiring process. Candidates can then arrive at the career fair with a better understanding of the organization, allowing for more focused conversations.

Recruitment Is an Ongoing Process Recruitment is rarely a single interaction. A candidate may meet an employer at an event, learn more about the organization, apply months later, or return when a position better matches their skills and interests. Maintaining these connections through clear and consistent communication can help keep potential candidates engaged. Providing information about opportunities, qualifications, hiring steps, and timelines allows candidates to make informed decisions. In the disability service sector, where hiring processes can involve multiple stages, regular communication can be particularly helpful in reducing uncertainty and supporting a positive candidate experience. Retention Starts with the Recruitment Experience The candidate experience begins well before someone accepts a job. Early interactions can influence how people view an organization and whether they see it as a place where they would like to work. Recruitment conversations provide an opportunity to discuss the role, workplace culture, career opportunities, training, organizational values, and expectations. They also allow employers to learn about candidates’ skills, interests, and career goals. This two-way conversation helps both sides consider whether an opportunity is a good fit.

For employers, understanding where potential candidates look for information, what they value, and how they prefer to connect can also help shape effective recruitment activities. A Balanced Approach to Recruitment There is no single recruitment approach that works for every organization or talent pool. Career fairs can provide broad exposure, while smaller and targeted initiatives can create more focused opportunities to connect. The goal is not to replace one approach with another, but to use different strategies for different purposes. A career fair may create awareness, a targeted event may provide more time for discussion, and follow-up communication can help maintain the relationship. For non-profit and disability service organizations, where compensation may not always be the only or primary factor attracting candidates, meaningful relationships can be especially important. Strong connections, a clear understanding of the organization’s values and work, and a positive candidate experience can help build interest and support long-term retention. Ultimately, effective recruitment is about understanding the talent an organization needs, reaching the right audiences, communicating clearly, and building relationships over time. Combining recruitment approaches allows employers to build on the strengths of each opportunity, expand their reach, and maximize the impact of their recruitment efforts.

PROMOTION CLAUSES IMPACTING RECRUITMENT AND RETENTION IN CBAS Scott Mostoway SARC Senior Labour Relations Consultant For the most part, when a union and employer are negotiating promotion and vacancy language in a collective agreement, they generally have competing interests. Unions will typically attempt to maximize the effect of seniority in the selection process. Employers, by contrast, will generally wish to preserve a merit-based system in which skills, abilities, and qualifications are given appropriate consideration. With these two competing interests in mind, the resulting language generally falls into one of three common types of clauses found in collective agreements. Let’s explore each of them to understand how to identify them and, more importantly, how to interpret them when they appear in your collective agreement. Threshold/Sufficient Ability Clause The more common of the traditional approaches is the threshold or sufficient ability clause. This type of provision generally stipulates that the applicant with the most seniority is entitled to the position, provided they possess the necessary skills, abilities, and qualifications. As expected, this type of provision places greater weight on seniority among applicants who meet the minimum requirements of the position. In other words, once an applicant has demonstrated that they meet the required threshold, seniority becomes the determining factor. This can mean that a more junior applicant with superior credentials may not be selected over a more senior applicant who meets the required qualifications and ability. An example of a threshold/sufficient ability clause is below: “Employees shall be entitled to bid for vacancies by means of written application. Where

qualifications and ability as determined by the Employer are met with more than one applicant, the senior applicant shall be awarded the position.” As you can see from the example above, the language indicates that where multiple applicants meet the required qualifications and ability, the position will be awarded based on seniority. The employer's role is therefore to determine whether each applicant meets the required threshold, rather than to determine which applicant is comparatively more qualified. Relative Ability/Competitive Clause The second type of promotion and vacancy clause generally found in collective agreements is the relative ability or competitive clause. This type of clause stipulates that seniority determines the outcome of the competition only where the skills, abilities, and qualifications of the applicants are relatively equal. When a collective agreement refers to applicants having “equal” qualifications or ability, this will generally be interpreted as relatively equal, rather than requiring absolute equality. In practice, it would be extremely difficult to determine whether two applicants possess qualifications, skills, and abilities that are identical in every respect. This type of clause provides employers with greater flexibility to assess the relative qualifications and suitability of applicants. Rather than seniority automatically determining the outcome once applicants meet a minimum threshold, the employer can consider the relative merits of the candidates. Seniority becomes the determining factor only when the candidates are

relatively equal. An example of a relative ability/ competitive clause is below: “Applications must be made in writing to the Executive Director by the specified closing date. When qualifications and ability are equal, as determined by the Employer, then seniority shall be the factor which determines which applicant shall be hired to fill the vacancy.” Based on the language above, there is a multistep approach. First, the employer must assess the qualifications and ability of the applicants. If one applicant is determined to have superior qualifications or ability, that applicant may be selected despite having less seniority. If the applicants are determined to be relatively equal, seniority becomes the determining factor. The distinction between these two types of clauses can therefore have a significant impact on an employer's ability to select the candidate it believes is best suited for the position. Hybrid Clause Although not as common, some collective agreements contain what could be described as a hybrid clause. A hybrid promotion and vacancy clause incorporates elements of both the threshold/sufficient ability and relative ability approaches. These clauses generally require the employer to consider different criteria, which may include seniority, skills, abilities, qualifications, education, experience, or other factors relevant to the position. Unlike a traditional threshold or relative ability clause, the agreement may not clearly establish the weight that should be given to each individual criterion. This can create a more subjective selection process and may provide the employer with greater discretion in determining the successful candidate. At the same time, the lack of clearly defined weighting can also create uncertainty for both the employer and the union when determining whether the selection process was consistent with the collective agreement. An example of a hybrid clause is below: “The most qualified applicant shall be appointed to the position within thirty (30) calendar days after the closing date of the posting. Qualifications shall include experience, education, ability and seniority.”

The language above demonstrates the potential complexity of a hybrid clause. While the employer is required to select the “most qualified” applicant, the collective agreement expressly identifies seniority as one of the qualifications to be considered. Unlike a traditional threshold clause, seniority does not necessarily become determinative once an applicant meets a minimum standard. Similarly, unlike a traditional relative ability clause, the agreement does not clearly state that seniority only applies when candidates are relatively equal. Instead, the employer may be required to weigh the various factors identified in the collective agreement when determining which applicant is the “most qualified.” Why Does the Language Matter? Understanding which type of promotion and vacancy clause exists in a collective agreement is important for both employers and unions. Small differences in wording can have a significant impact on how much weight can be given to seniority and how much discretion an employer has when selecting a successful candidate. For employers, understanding the language is particularly important when designing recruitment and retention strategies. A collective agreement that gives significant weight to seniority may limit an employer's ability to select the candidate it believes has the strongest qualifications or skill set for a position. Conversely, a clause that provides greater consideration to relative qualifications, ability, and experience may give an employer greater flexibility to recruit and retain employees based on merit. Ultimately, the specific language of the collective agreement is critical. Employers should carefully review the wording of their promotion and vacancy provisions before determining how a competition should be conducted. Understanding whether the agreement establishes a threshold, relative ability, or hybrid approach can help ensure that the selection process is both consistent with the collective agreement and defensible if challenged.