Legal Q&A: Answers to four common legal questions
By MyLegalAnswers | January 31, 2002
Question 1: Can an employer hire replacement workers during a strike?
Yes, during a lawful strike an employer has the right to hire temporary replacement workers.
Replacement workers must be temporary, because within 6 months of a lawful strike, any employee who makes a written, unconditional application to return to work, MUST be returned to work. After the 6-month period, an employee can still get his or her job back by relying on the rule that an employer cannot dismiss an employee for exercising a legal right, which includes striking.
Thus, employers can hire replacement workers, but only on a temporary basis.
It is important to note, however, that during an unlawful/illegal strike, an employer has the right to hire permanent replacement workers.
Citation/References: Labour Relations Act, S.O. 1995, c. 1, Sch. A, ss. 72(a), 80.
Question 2: If an employee makes an invention while employed, to whom does the invention belong?
Generally, if an employee makes an invention while employed, the invention belongs to the employee, not the employer. However, there are 2 exceptions, where the invention will belong to the employer:
- if there is a contract between the employer and employee that says that the invention will belong to the employer;
- where the employee was employed for the very purpose of inventing or innovating. (Here, the invention must be made within the scope of employment, during working hours, and using the materials of the employer).
If neither of these exceptions is present, the invention belongs to the employee.
Citation/References: Comstock Canada v. Electec Ltd. (1991), 38 C.P.R. (3d) 29.
Question 3: When do I have re-employment obligations toward an injured worker?
You will normally have re-employment duties toward an injured worker if she or he had been employed by you for 1 year continuously at the time of the injury, and if you regularly employ 20 or more workers.
Citation/References: Workplace Safety & Insurance Act, 1997, s.41(1)
Question 4: What questions may employers not ask in an application?
Questions on a job application which have the effect of obtaining irrelevant personal information must be avoided by employers. However, if the employer can establish that a particular piece of information on the application is related to legitimate requirements or qualifications for the position, the question may be allowed.
It is not appropriate to include on job applications any questions relating directly or indirectly to the following: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, record of offences, marital status, family status or handicap/disability. Specifically:
Race or Colour - There are no permissible questions in relation to race or colour. Questions which request information about physical characteristics such as colour of eyes, hair, height, or weight, or requests for photographs, are strictly prohibited.
Creed - There are no permissible questions in relation to creed. Questions as to religious affiliation, churches attended, religious holidays, customs observed, willingness to work on a specific day which may conflict with requirements of a certain faith, are strictly prohibited.
Citizenship, Place of Origin, and Ethnic Origin - The only permissible question in relation to these factors is one asking if the applicant is legally entitled to work in Canada. Questions about Canadian citizenship, landed immigrant status, permanent residency, naturalization, and any requests for Social Insurance Numbers are all strictly prohibited. (Note: A social insurance number may have information about one's place of origin or citizenship status. A S.I.N. may be requested following a conditional offer of employment). Questions as to membership in organizations which are identified by a prohibited ground, and questions inquiring as to the name and location of schools attended, are also strictly prohibited.
Sex - There are no permissible questions here. Categories on applications or questions such as maiden or birth name, Mr., Mrs., Miss., Ms., and any questions asking about the applicant's relationship with the person to be notified in case of emergency or an insurance beneficiary, are all prohibited.
Sexual Orientation - There are no permissible questions here. Categories on the application or questions asking whether or not the applicant is married, divorced, in a common-law relationship, single or separated; any information about the applicant's spouse; and any questions asking about the applicant's relationship with the person to be notified in case of emergency or an insurance beneficiary, are all prohibited.
Marital Status and Family Status - There are no permissible questions here. Categories on applications such as married, divorced, common-law relationship, single, separated; maiden or birth name; Mr., Mrs., Miss., Ms.; children or dependants; child care arrangements; information about a spouse or a second income; and questions concerning the applicant's relationship with the person to be notified in case of emergency or an insurance beneficiary, are all strictly prohibited.
Record of Offences - Basically, the only permissible question here is one that asks if the applicant has ever been convicted of a criminal offence for which a pardon has not been granted. Questions may also be asked, where relevant, to determine if the applicant is bondable. Questions as to whether an applicant has ever been convicted of an offence; has ever spent time in jail; has ever been convicted under a provincial statute or been convicted of an offence for which a pardon has been granted, are all strictly prohibited.
Age - Basically, the only permissible question here is one asking if the person is 18 years of age or older and less than 65 years of age. Questions as to age, date of birth, or requests for birth or baptismal records, or other documents such as a driver's licence, or educational transcripts which indicate age, are all prohibited.
Disability - There are no permissible questions here. Questions about health, handicaps, illnesses, physical or mental defects or any similar questions, are prohibited.
Note that any request for a copy of a driver's licence on an application is prohibited because it may eliminate or screen out applicants with disabilities, and it allows use of the licence to determine age. Such a request can however be made after a conditional offer of employment.
The Ontario Human Rights Commission assists employers by reviewing their applications before they are used to determine whether they comply with human rights legislation. Employers who receive approval from the Ontario Human Rights Commission are entitled to note this at the bottom of the application form.
Citation/References: Ontario Human Rights Code R.S.O. 1990, c. H. 19, s. 5(1), 23(2).