Page 30 - GBC Spring 2021 English

discriminatory considerations. It also creates a paper trail that an owner/manager can use to defend itself in a legal proceeding.
ACCESSIBILITY LAWS
Owners/managers in Ontario are generally required to notify candi- dates about the availability of accommodation. Specifically:
• when an owner/manager has established a recruitment process, the owner/manager must notify its employees and the public about the availability of disability-related accommoda- tion in the recruitment process;
• when selecting job applicants to participate in an assessment or selection process, the owner/ manager must notify the appli- cants that accommodations are available upon request in relation to the materials or processes to be used; and
• when extending an offer of employment to the successful candidate, the owner/manager must notify the candidate about the policies for accommodating employees with disabilities.
BACKGROUND AND REFERENCE CHECKS
Candidates are typically on their best behaviour during the hiring process, and rarely divulge infor- mation that portrays them in a poor light. Reference and back- ground checks are useful tools to capture a more complete and accurate “picture”. But owners/ managers should conduct back- ground checks with caution due to the potential for unintended conse- quences and legal liability.
With that in mind, owners/ managers should proceed with a particular background check only after ensuring that the benefits outweigh the consequences. For example, the benefits of a social media check rarely outweigh the potential consequences. Social
media checks typically reveal a wealth of irrelevant and unwanted information that can tarnish the decision making process and expose an owner/manager to liability.
Before proceeding with a back- ground check, owners/managers should: (1) notify the candidate of the specific reference and back- ground checks that will be conducted; and (2) obtain the candidate’sconsentbeforeconduct- ing the checks.
In addition, the checks should be conducted only after presenting the candidate with a written offer of employment that is conditional on satisfactory background and reference checks.
WRITTEN EMPLOYMENT CONTRACTS
The written employment contract outlines the expectations for the employee and the owner/manager. The contract can also address other important aspects of the employ- ment relationship, including the following.
NOTICE OF TERMINATION AND TERMINATION PAY
The termination of employment is often not top-of-mind during the hiring process. Job candidates and owners/managers are focused on starting the employment relation- ship, not ending it. Unfortunately, every employment relationship ends at some point in time, and when the relationship ends, the owner/manager’s obligations will depend, in part, on the employee’s contract.
A common misconception is that owners/managers can term- inate an employment relationship by simply providing an employee with the minimum amount of termination pay required by employment standards laws. However, unless the employee has a valid contract with a well-drafted
termination clause, the employee will be entitled to more than these minimum entitlements.
Instead, the employee may be entitled to an amount of “reason- able” notice, which is significantly greater than the minimum entitle- ments in most cases. To illustrate this point, courts have concluded that some long-service employees are entitled to more than 2 years’ notice of termination at “common law” – an outcome that can be avoided with a well-drafted contract.
TEMPORARY LAYOFFS
Golf course owners/managers may need to lay-off employees for various reasons. The most obvious example is the need to lay-off employees during the off-season when golf courses are closed. Employers may also need to temporarily lay-off employees if business is unusually slow.
A common misconception is that employers have an inherent right to lay off employees when the need arises. However, employers have the right to lay off employees only if the right is provided by the employee’s employment contract. Without a contract that contem- plates temporary layoffs, an employee may be able to treat the lay-off as a termination, which would trigger their termination entitlements. While owners/ managers might be able to argue that the right to lay off is implied into the contracts of certain employees, it is prudent for owners/managers to have written contracts that explicitly establish the right.
PROBATION
A third misconception is that every employee begins their employ- ment with a probationary or trial period. Contrary to popular belief, owners/managers may be required to provide employees with notice of termination during the first three
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