Practical Tips for the Canadian Job Applicant
R. Mark Fletcher for The Lawyers Weekly
The hiring process is often both an exciting and stressful time for the job applicant. In today's fast paced modern global economy, competition among well qualified candidates for a limited number of good jobs in Canada has never been fiercer. Employers in Canada can expect to be inundated with hundreds, if not thousands, of applications from interested job applicants responding to their ads published in national newspapers and, increasingly, on the internet.
It is therefore not surprising that many applicants feel pressured to embellish their previous work experience, qualifications and education to prospective employers in Canada. Some overly anxious applicants will resort to lying about themselves to become the successful candidate. This conduct may lead to serious legal consequences for individuals who misrepresent themselves to prospective employers. This article will outline some of the legal risks in Canada faced by applicants who resort to such tactics.
In addition, it is equally not surprising that successful job applicants in Canada feel pressured to accept the terms and conditions of employment offered by prospective employers and will often agree to onerous contractual terms without negotiation. The successful candidate may not realize that he or she has leverage to insist on more favourable terms. This article will also provide some guidance on what prospective employees in Canada should look for when reviewing a Canadian employment offer and contractual terms presented by employers.
Applicants in Canada must honestly and accurately describe their educational background, qualifications and previous work experience to prospective employers. In short, applicants should be candid, honest and forthright in all aspects of the application process. The candidate who fails to adhere to this rule runs the legal risk of being terminated for just cause if the candidate's dishonesty is later discovered by the employer.
The employment relationship is based on trust, loyalty and fidelity. Where an employee is dishonest with their employer, the trust, which is fundamental to the employment relationship, may be irretrievably lost and may give the employer just cause to terminate the employee's employment depending on the severity of the employee's dishonesty in the circumstances of the particular employment relationship.
Accordingly, a job applicant in Canada should ensure that his or her resume and cover letter submitted to any prospective employers honestly and accurately reflects their past accomplishments, education and work experience. While effective self-promotion is a necessary part of the application process, the applicant must not falsely advertise themselves.
Similarly, if required to complete a job application form, the applicant should carefully review the questions asked and provide accurate and honest answers to the prospective employer. A signed application form completed in Canada, containing material misrepresentations about the job applicant would potentially warrant the employee's dismissal for just cause and would become an important and compelling piece of evidence for an employer relying on the doctrine of just cause in defending a wrongful dismissal lawsuit.
While in the job interview, the applicant should refrain from making an exaggerated and embellished case for him or herself and ensure that all answers provided to the interviewer are candid and truthful in every respect.
Carefully review the terms and conditions of employment and never fear to negotiate
The successful job applicant, applying for a job in Canada, should insist on a written offer of employment if the prospective employer has not already provided one. Once the prospective employer has put the job offer in writing, the terms and conditions of employment should be carefully reviewed before acceptance by the prospective employee.
Although not exhaustive, the following list identifies important components of an employment agreement in Canada:
Compensation - The base salary, bonus participation, benefits, car allowance and other employer paid expenses should all be specifically addressed in the employment agreement such that there is no uncertainty about what compensation the employee is entitled to receive from the employer. The prospective employee should not rely on verbal assurances made by the prospective employer.
Vacation Entitlement - The prospective employee's vacation entitlement should be specifically addressed.
Duties and Responsibilities - The prospective employee's duties and responsibilities should be set out so it is clear from the outset what duties the employee is expected to perform. The employee working in Canada should also insist on a clause in the employment agreement that requires mutual agreement to significantly modify the duties.
Termination Clause - Sophisticated Canadian employers realize that it is important to limit potential liability to employees when the employment relationship is terminated and will often try to provide only minimal notice to the employee if the employee's employment is terminated without cause. Employees working in Canada should be extremely cautious about signing an employment agreement with a termination clause with only a minimal severance entitlement. The prospective employee should obtain independent legal advice from a Canadian labour and employment lawyer on the terms offered and should insist on a fair and reasonable termination clause so that he or she is protected if the employment relationship is terminated on a without cause basis by the employer.
Intellectual Property Assignment - A prospective employee working in Canada should carefully review terms and conditions relating to the assignment and ownership of intellectual property to the prospective employer. It is recommended that the job applicant obtain legal advice from a Canadian labour and employment lawyer on the potential implications of the employment contract on the employee's rights in this regard.
Restrictive Covenants - The prospective worker seeking employment in Canada should be cautious about signing an employment agreement before obtaining legal advice from a Canadian labour and employment lawyer on restrictive covenants such as non-competition and non-solicitation clauses, which may limit the prospective employee's future employment opportunities with a competitor or in the context of self-employment.
It is recommended that successful job applicants meet with a Canadian labour and employment lawyer to review offers of employment and any terms and conditions of employment presented to the candidate by the prospective employer. A Canadian professional legal advisor can also assist the candidate with developing a reasonable negotiation strategy designed to obtain improved terms of Canadian employment for the prospective employee.
Mark Fletcher is an associate lawyer with Grosman, Grosman & Gale LLP located in Toronto, Ontario.