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Home > Our Insights > 5 Employer FAQs About Religious Accommodation @ Work
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5 Employer FAQs About Religious Accommodation @ Work

Published:

December 13, 2016

Author(s):

  • Malcolm Boyle, QC

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Employers’ legal duty to accommodate employees seems to most frequently come up in the context of employees with disabilities. But that duty extends to any characteristics that human rights legislation protects, including gender identity, gender expression and sexual orientation, sex, family status … and religion. As the ethnic diversity of Canada’s population grows, so too does the religious diversity of its workforce – and the calendar of religious holidays has expanded correspondingly. Employers risk violating human rights legislation when they make generalized assumptions about what days of the week or of the year religious beliefs restrict employees from working, or impose unrealistic alternatives or conditions on employees.

HAPPY HIMMELFAHRT

That’s just what was at stake in a 2015 decision of the Ontario Human Rights Commission when one employer (ES Holdings Inc., operating as Country Herbs) failed to accommodate Himmelfahrt. The employer grows and imports vegetables and herbs in a rural locale. Two full-time employees, a brother and sister, both minors, packed the products; the employer agreed with their parents that they wouldn’t work past 10:00 p.m., given their age. The employer’s written policy stated there was no time off on Thursdays; this was due to the required delivery schedule and the perishable nature of the product. The siblings are German Mennonites who celebrate a religious holiday called Himmelfahrt; in this year, the holiday fell on a Thursday. One sibling was scheduled to work on Himmelfahrt; the other wasn’t. Together, they informed their employer in advance of Himmelfahrt that the scheduled sibling wouldn’t be able to work either on Himmelfahrt. The employer gave her the option of attending work on Himmelfahrt or at a special midnight shift, added only when there was a German Mennonite holiday, to make up the hours missed or be fired. The scheduled sibling didn’t attend work on either and the employer fired both siblings. The siblings filed a complaint with the Ontario Human Rights Commission alleging discrimination in employment based on creed and association. The employer argued the siblings knew the policy and its consequences. Furthermore, Himmelfahrt fell on a Thursday, a particularly busy day. Eleven other employees had also asked for it off; it wouldn’t be possible to accommodate everyone and scheduling make-up shifts after Himmelfahrt would be unsustainable given the perishable products and time-sensitive nature of the work. But the human rights adjudicator agreed with the employees:

  • The attendance policy discriminated on the basis of creed, and the midnight option wasn’t reasonable The employer adopted the policy for a purpose rationally connected to the job performance and in an honest and good faith belief it was necessary to fulfill the work-related purpose – but didn’t prove the policy’s standard was reasonably necessary to accomplish that work-related purpose nor that the employer took reasonable steps to accommodate the scheduled sibling. There was no evidence the employer had any discussion with the employee or obtained information about her situation, that it considered how she could be accommodated or even that it gave serious thought to alternatives to accommodate her even though she informed the employer far in advance.
  • The alternative it proposed to the employee (working at midnight) was unreasonable in the circumstances (the employee’s age, the employer’s setting and the prior agreement with the employee’s parent limiting the hours of work), so imposing the attendance policy on her wasn’t justified.
  • Regardless, the employer didn’t adduce any evidence of undue hardship.

The adjudicator also decided the employer fired the unscheduled sibling because of his association with his sister on the basis of creed contrary to the Human Rights Code (and likely also a wrongful dismissal regardless). The adjudicator awarded the siblings a total of $17,500 compensation for injury to their dignity and feelings, $8,617 for lost wages (plus interest), and ordered the employer to create an internal human rights policy, take human rights training and place Human Rights Code cards throughout the workplace.

5 EMPLOYER FAQS ABOUT RELIGIOUS ACCOMMODATION Here are the answers to five of employers’ most frequently asked questions about accommodating employees on the basis of religion.

  1. What “religions” is an employer required to accommodate?

In the seminal case on freedom of religion, Syndicat Northcrest v. Amselem, the Supreme Court of Canada said that, “[d]efined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.”

Human rights legislation protection of religion in Canada covers more than merely mainstream or well-known religions, and extends to creed and religious creed. As long as a person has a religious belief that’s “sincerely held”, regardless of how widespread that belief is, the employee is entitled to be accommodated. If an employee approaches their employer about religious accommodation, it’s important that that employer keep an open mind, avoid making off-the-cuff judgments of the legitimacy of any such belief or religion, hear the employee out, take steps to fulfill its duty to accommodate and document everything fully.

  1. Why should an employer accommodate one employee if other employees of the same religion don’t ask for accommodation?

Because it has a legal obligation to do so. Religion is personal. People’s beliefs and practices often exist on a spectrum: some devout believers seek no accommodation, while others, whose belief may not appear as deep, believe sincerely in observing rites and rituals. And an accommodation that works for some employees might not work for others. For example, in the Himmelfahrt case example, 11 employees had asked to take the holiday off; about half took the option to work the newly added midnight shift and took the day off, and half worked the holiday. The siblings were the only employees that didn’t work either option – but the employer still violated their right to be free from discrimination based on religion.

  1. What sorts of things does an employer have to do to accommodate an employee’s religion?

Accommodating religion means taking steps to avoid unnecessary interference with the employee’s observance of their religion. Depending on the nature of the workplace and the requirements of the religious belief, this could entail the employer:

  • Giving an employee time off or adjusting its scheduling to allow an employee to observe their Sabbath, certain holy days or even daily rites, such as prayer. In Canada, the Christian population is generally accommodated through statutory holidays. However, members of other religions may request time away from work for their high holy days. Usually, accommodation takes place by allowing them to use vacation time, banked time or the like. There is very little precedent for requiring an employer to offer paid time off.
  • Eliminating or adjusting practices or policies, both those that are discriminatory on their face and those that appear neutral, but have a discriminatory impact. One example is workplace dress codes, which can often seem reasonable but once in practice, can adversely impact an employee based on their religion.
  • Not imposing one group’s religion on non-adherents. This may be challenging in workplaces dominated by one religious group, but the employer is still legally obliged to accommodate. So, for example, because your company’s Christmas Hannukah  Kwanza party probably isn’t focused on the religious aspects of a holiday and is instead intended to allow employees to get together socially, calling it a holiday party is more inclusive – and advisable.
  1. How much accommodation is enough?

An employer is required to offer reasonable accommodation to the point of “undue hardship”. At times, this might seem impossible or unfair to the employer. But before jumping to this conclusion, the employer must consider the potential accommodations and the evaluate each relative to the factors that bear on undue hardship (and should document its considerations). These can include financial cost, disruption of a collective agreement, problems of morale, feasibility and reallocation of work or scheduling changes. Often, the size of the employer’s workforce is key. Accommodation is typically easier where the workforce is large and religiously diverse than where it’s relatively small and the proportion of those seeking accommodation is relatively large.  But an employer’s obligation to accommodate employees’ religion is to the point of undue hardship. The bottom line: some hardship must be expected and an employer must accept this as part of “the cost of doing business” in a diverse and rights-based society like Canada.

  1. Why does the employer have to do all the work?

It doesn’t. Employees seeking accommodation of religion (or any other type of accommodation) have a legal obligation to cooperate. This means they must participate in the accommodation efforts in a meaningful way, assist in finding an accommodation that works and accept a reasonable – as opposed to a perfect – accommodation. This might look different in each case depending on the nature of the workplace, the needs involved and the accommodation options. For example, if scheduling is an issue, the employee seeking accommodation might need to accept other scheduling changes that result from the accommodation, if they aren’t avoidable and don’t amount to discrimination themselves.


Please contact your McInnes Cooper lawyer or any member of our Labour & Employment Team @ McInnes Cooper to discuss this topic or any other legal issue.


McInnes Cooper has prepared this document for information only; it is not intended to be legal advice.  You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2016.  All rights reserved.  McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.

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    Publications
  • Nip it in the Bud: A 5 Step Plan for Employers to Prepare for Cannabis Legalization in Canada

    Apr 17, 2017

    Recreational cannabis isn’t legal yet - but much of the associated stigma is already gone, usage is up and employers are feeling the workplace…

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    Publications
  • The Labour & Employment Team @ McInnes Cooper in the Chronicle Herald’s Cream

    Mar 29, 2017

    The minimum wage rates in each of the four Atlantic Canadian Provinces will increase on April 1, 2017. The Labour & Employment Team @…

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    Publications
  • The Atlantic Immigration Pilot Program (AIPP): 5 Key Opportunities & Risks for Employers

    Feb 22, 2017

    On January 1, 2022, the Atlantic Immigration Pilot Program became the permanent Atlantic Immigration Program (AIP). Learn more at From Pilot to…

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    Publications
  • 12 Key Do’s & Don’ts of Hiring & Firing

    Jan 31, 2017

    The hiring process and the termination process are equally important stages of the employment relationship – and both are full of minefields…

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    Publications
  • Businessperson or “Business Visitor”: Canada’s Business Visitor Visa Rules

    Nov 22, 2016

    Canada’s most important trading relationship might undergo some change with the results of the 2016 U.S. election. Facilitating cross-border…

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    Publications
  • The 5 Key Elements of an Attendance Management Program (AMP)

    Nov 15, 2016

    The employment contract is an exchange of labour for wages and other benefits, so employers are entitled to expect regular ongoing attendance…

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    Publications
  • 3 Key Employment Law Steps to Take Now to Help You Sell Later

    Oct 19, 2016

    Business owners wear many hats – including employer. Your employees may be your business’s greatest asset, but they could also be your…

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    Publications
  • Uber Angst: Employees & Independent Contractors in the Sharing Economy

    Sep 29, 2016

    Whether someone is an employee or an independent contractor has long caused employers a degree of angst. And the recent emergence of a new…

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    Publications
  • No Union? No Problem: Supreme Court of Canada Decides Canada Labour Code Bars Dismissal of Non-Unionized Employees Without Cause in Joseph Wilson v. Atomic Energy of Canada

    Jul 15, 2016

    On July 14, 2016, the Supreme Court of Canada decided that the “Unjust Dismissal” sections of the Canada Labour Code ensure that…

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    Publications
  • NS Dives into Pooled Registered Pension Plans (PRPP)

    Jun 30, 2016

    As of June 25, 2016, provincially regulated workers and employers in Nova Scotia, Quebec, BC and Saskatchewan can participate in Pooled…

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    Publications
  • Label Delicate: Workplace Dress Codes Test & Tips

    Jun 29, 2016

    Employers are entitled to mandate dress codes in the workplace, and even to discipline employees who refuse to comply. But a workplace dress…

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    Publications
  • NS Poised to Take the Plunge into Pooled Registered Pension Plans (PRPPs)

    May 5, 2016

    NOTE: As of June 25, 2016, provincially regulated workers and employers in Nova Scotia, Quebec, BC and Saskatchewan can participate in Pooled…

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    Publications
  • The Legal Defence of Due Diligence: Top 5 FAQs

    May 2, 2016

    “Due diligence” is a legal defence to many charges under occupational health and safety (OHS) laws. Here are five of the most…

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    Publications
  • Meghan Felt and Sarah McInnes in the Chronicle’s Herald Cream: The Nuances of Labour Marketing Impact Assessments (LMIA)

    Apr 29, 2016

    It’s critical for an employer to obtain a Labour Market Impact Assessment (LMIA) when hiring a temporary foreign worker(s). Employers applying…

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    Publications
  • The Nuances of Labour Marketing Impact Assessments (LMIA): 2 Key Exemptions to Minimum Advertising Requirements

    Mar 29, 2016

    Applying for and obtaining a Labour Market Impact Assessment (LMIA) is a critical step in hiring a temporary foreign worker(s). Employers…

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    Publications
  • Construction Project Manager Sentenced to 3½ Years for Workplace Accident in R. v. Vadim Kazenelson (aka “Metron”)

    Mar 9, 2016

    In what appears to be the first case of the conviction of a front line supervisor under section 217.1 of the Criminal Code and sentencing to a…

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    Publications
  • 3 Tips to Manage Employee Tardiness Due to Adverse Weather Conditions

    Feb 23, 2016

    Employee tardiness is a significant problem for employers - and bad weather is one of the top three reasons that employees give for it according…

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    Publications
  • The Top 12 Employment Contract Terms

    Feb 1, 2016

    A well drafted and implemented written employment contract can be instrumental to both avoiding or resolving disputes both during the employment…

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    Publications
  • An Ounce of Prevention is Worth a Pound of Response: The W-5’s of Managing Conflict & Preventing Harassment, Bullying & Violence @ Work

    Dec 7, 2015

    Violence has become an unfortunate reality in current society, and the workplace is not immune. With more people spending more time at work,…

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    Publications
  • 10 of the Top Employers’ Attendance Management Problems

    Aug 13, 2015

    The employment contract, at its core, is an exchange of work for compensation. So at a very basic level, employers are entitled to expect…

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    Publications
  • 3 Reasons for Directors, Officers and Supervisors To Take Occupational Health and Safety Personally

    Jun 25, 2015

    Most people know that a company itself has OHS obligations, and that it risks corporate liability if it violates those obligations. However, not…

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    Publications
  • 5 FAQs About Workplace Sex Discrimination

    Mar 31, 2015

    This publication has been updated as of June 24, 2021. Women make up close to half of the employed workforce: in 2019, Canadian women 15…

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    Publications
  • 5 Hot Tips to Help Employers Handle Office Romances

    Feb 13, 2015

    This publication has been updated as at January 26, 2022. With people spending so many of their waking hours at or connected to work these…

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    Publications
  • Supreme Court of Canada Says the Charter Protects the Right to Strike in Saskatchewan Federation of Labour v. Saskatchewan

    Feb 2, 2015

    On January 30, 2015 the Supreme Court of Canada decided that the Canadian Charter of Rights and Freedom’s protection for freedom of…

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    Publications
  • Bad Faith & Unfair Dealing in Employee Dismissal: 7 Lessons in 7 Years

    Jan 30, 2015

    In December 2014, the NL Supreme Court ordered an employer to pay its former employee $30,000 in moral damages to compensate him for the mental…

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    Publications
  • Privacy in Basic Cell Phones: SCC Continues Trend of Privacy Protection in R. v. Fearon

    Dec 11, 2014

    On December 11, 2014 the Supreme Court of Canada continued its trend to recognize privacy rights – and develop the law to protect them –…

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    Publications
  • 5 Tips to Manage Employer (Social) Host Liability

    Dec 5, 2014

    This article has been updated as of December 11, 2020. Employers host numerous events throughout the year – summer and holiday office…

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    Publications
  • Egg Films Epilogue: 5 Key Implications of NS Union Certification Based on “Industry” Dependence in Egg Films Inc. v. Nova Scotia (Labour Board)

    Nov 27, 2014

    Recently, the NS Court of Appeal confirmed that a union can be certified as the bargaining agent of employees based merely on their dependence…

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    Publications
  • 5 New Obligations on NB Employers Effective September 1, 2014 in NB Employment Standards Act

    Sep 30, 2014

    Effective September 1, 2014 the NB government implemented five important changes to the NB Employment Standards Act – the minimum standards…

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    Publications
  • Canada’s Temporary Foreign Worker Program Overhaul

    Jul 9, 2014

    On June 20, 2014 the Federal Government announced a major overhaul of Canada’s Temporary Foreign Worker Program. With stringent enforcement…

    Read More
    Publications
  • NS Workers’ Compensation Board Issues New Policy for Psychological Injury Claims

    Apr 7, 2014

    On March 31, 2014 the NS Workers’ Compensation Board (WCB) issued a new policy applicable to its adjudication of psychological injury claims…

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    Publications
  • Legal Update: Feds Crack Down On Employer Abuse Of Temporary Foreign Worker Program

    Apr 3, 2014

    On March 28, 2014 the Federal Government tabled Bill C-31 to implement the 2014 Federal Budget – including broad authority to impose cash…

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    Publications
  • Legal Update: More Changes to Federal Temporary Foreign Worker Program

    Jan 21, 2014

    On December 31, 2013, amendments to the Immigration and Refugee Protection Regulations and new Ministerial Instructions changing the Federal…

    Read More
    Publications
  • Privacy in Computer Contents: Supreme Court of Canada Picks Up Where It Left Off in R. v. Vu

    Nov 8, 2013

    On November 7, 2013, the SCC decided police require specific authorization in a search warrant to search the data in a computer because of the…

    Read More
    Publications
  • Privacy Trumps Safety As SCC Strikes Down Employer’s Mandatory Random Alcohol Testing Policy in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper

    Jul 2, 2013

    On June 14, 2013, the Supreme Court of Canada’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp…

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    Publications
  • SCC Strikes Down Employer’s Mandatory Random Alcohol Testing Policy

    Jun 14, 2013

    On June 14, 2013, in its highly anticipated decision in Communications, Energy and Paperworkers’ Union of Canada, Local 30 v. Irving Pulp…

    Read More
    Publications
  • Legal Alert: Federal Temporary Foreign Worker Program Changes

    Apr 30, 2013

    Note: Effective December 31, 2013, the Federal Government made additional changes to the Federal Temporary Foreign Worker Program. Click here to…

    Read More
    Publications
  • The Changing Tide of Atlantic Canadian Pension Legislation

    Apr 3, 2013

    Pension legislation throughout Atlantic Canada is in a state of change. In less than a year, each Atlantic Province has taken steps – in some…

    Read More
    Publications
  • Students with Learning Disabilities Have a Right to Education Comparable to that of the General Student Population in Moore v. British Columbia (Education)

    Jan 8, 2013

    On November 19, 2012, the Supreme Court of Canada (SCC) unanimously ruled a B.C. public school system’s failure to provide adequate and…

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    Publications
  • Supreme Court of Canada Confirms Employees May Have a Limited Reasonable Expectation of Privacy In Work Computer in R. v. Cole

    Nov 28, 2012

    On October 19, 2012 the Supreme Court of Canada (SCC) decided that a teacher criminally charged with possession of child pornography and…

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    Publications
  • Legal Alert: SCC Finds Limited Reasonable Expectation of Privacy In Work Computer But Evidence Still Admissible

    Oct 22, 2012

    Mr. Cole was a high school teacher with an employer owned and issued laptop computer.  He also used it for incidental personal purposes, which…

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    Publications
  • Supreme Court of Canada Confirms Reviewing Courts Should Give Due Deference to Administrative Decision-Makers Even At Early Stage of Process

    Jul 10, 2012

    On March 16, 2012, the Supreme Court of Canada (“SCC”) confirmed the decision of the N.S. Court of Appeal, reinstating the N.S. Human Rights…

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    Publications
  • “Canada Day” Or “July 1st”: Which Is The “Holiday” For Employees?

    Jun 14, 2012

    As any Canadian knows, July 1st – Canada Day – is the first long weekend of the summer; or is it?  This year, July 1st falls on a Sunday. …

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    Publications
  • 10 Tips to Deal with Employee Discipline for Social Media Use

    Mar 1, 2012

    Social media represents a profound cultural shift and employers must adapt if they want to avoid unnecessarily – and potentially costly –…

    Read More
    Publications
  • Alert: Significant Changes to NS Human Rights Complaint-Handling Procedure Effective January 1, 2012

    Jan 5, 2012

    Effective January 1, 2012, NS’s Human Rights Commission will receive, investigate and handle complaints under NS’s Human Rights Act under a…

    Read More
    Publications
  • Multiple Extensions of Termination Date Nullify Termination Notice

    Dec 19, 2011

    In a decision with application to Atlantic Canada, the Ontario Court of Appeal found that an employer’s multiple extensions of a terminated…

    Read More
    Publications
  • NB Court of Appeal Upholds Mandatory Random Alcohol Testing Policy

    Aug 6, 2011

    Note: On June 14, 2013 the Supreme Court of Canada issued its decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v.…

    Read More
    Publications
  • Ontario Court of Appeal Finds Reasonable Expectation of Privacy in Work Computer

    May 6, 2011

    In March 2011, the Ontario Court of Appeal found that an employee had a limited expectation of privacy in the contents of a work computer. The…

    Read More
    Publications
  • Changes to Federal Foreign Worker Regulations Effective April 1, 2011: A Serious Issue for Employers

    Mar 6, 2011

    In the midst of a sea of change, the Federal Government has enacted Regulatory changes significantly impacting employers who hire foreign…

    Read More
    Publications

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