A Victoria construction company has successfully appealed a fine for reducing the wage of an employee who misrepresented his skills, in what the owner compared to a “David and Goliath” situation with the federal government.
Northern Tropic Homes Ltd., which builds sunrooms and solariums, hired a temporary foreign worker as a lead carpenter in 2016.
After the worker, originally from Hungary but living in Saskatchewan, moved to Victoria, obtained a work permit and began working in October 2016, it became apparent that his experience was more limited than what he represented during the interview process, according to a recent Federal Court of Canada decision.
The worker did not possess a Canadian Red Seal certification and lacked substantial experience in glass glazing, footings and foundations, the decision said. As a result, the man required extensive training from the company’s head carpenter, over six to seven months, which cost the company several thousand dollars.
The company decided to temporarily reduce the worker’s hourly wage to $24 from $30 to reflect his lack of experience and the training required. The wage was raised incrementally as his skills improved until it was restored to $30 per hour.
But a random compliance check by Employment and Social Development Canada found the company in breach of Immigration and Refugee Protection Regulations, because it was paying the worker less than the agreed-upon wage.
The company was fined $7,000.
Troy Nelson, owner of Northern Tropic Homes, appealed the fine in federal court.
In a decision given last week, Federal Court Justice Russel Zinn found the wage reduction must be accepted.
“A proper reading of [the regulations], combined with full consideration of the unique circumstances of this case, leads to only one reasonable outcome,” he said.
Nelson said when he discovered the man’s skills were not what he said they were during the interview process, the company’s options were to either lower his wage or let him go.
The man had already moved his family from Saskatchewan, and even if Nelson fired him, he would still have been attached to the company through the temporary foreign worker program and unable to apply for another job until the government decided to release him.
Nelson decided to lower the man’s wage, and said the worker was “up to snuff fairly quickly.”
“It’s just what we had to do. And he was all fine with that,” Nelson said.
The man worked for Nelson for about three years and they became friends, he said. When the man decided to move to a smaller town on the Island, Nelson helped him get settled.
The man signed an affidavit saying he was aware of the reason for the wage decrease, but the government ignored it, Nelson said.
The federal department’s decision to fine Nelson was due, in part, to the fact he did not obtain prior approval from Employment and Social Development Canada for the wage reduction.
Nelson said that was because it was impossible to reach any officials to ask for approval.
“There is no email address, and there is no answering telephone service there to leave a message. There is only one telephone, and it will ring and ring and ring and ring and then that is it. And there just wasn’t anybody there to answer it,” he said.
Nelson is not sure he would hire another foreign temporary worker after the nearly decade-long ordeal.
“It really puts the immigration or immigrant in a bad place, because people don’t want to hire them, because of all of these rules and regulations,” he said.
Employment and Social Development Canada said in a statement it would not comment on the specific decision, but the government takes seriously its responsibility to protect the integrity of the temporary foreign worker program, which enables Canadian employers to fill labour and skills shortages on a temporary basis when Canadians and permanent residents are not available.
The program uses a labour market impact assessment to guard against wage suppression or displacement of Canadian workers, and ensure temporary foreign workers are paid fair wages, the department said.
It said employers should report changes to a labour market impact assessment application by contacting the employer contact centre, which has a standard to answer calls within 10 minutes. Monthly average wait times over the past year are all under 10 minutes, it said.
Employment and Social Development Canada did not answer questions about why it pursued a fine in Nelson’s case, despite the worker’s agreement to the wage reduction, whether it has taken steps to make it easier for employers to reach officials and about his concerns that the red tape involved in hiring temporary foreign workers is a deterrent.
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