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THE QUESTION
My company is undergoing a merger. The new HR department just sent out a company-wide e-mail for us to take a skills assessment test. They say it’s being used as a development tool for reskilling and upskilling, but my online searches of this test say that it’s for evaluating potential hires. That makes me think they’re using it to figure out who to let go and who to keep. Could I be shooting myself in the foot by taking the test? Am I allowed to refuse the test if I wasn’t required to take any tests like this when I was first hired?
THE FIRST ANSWER
Rahul Soni, employment lawyer, Soni Law Firm, Toronto
You cannot simply refuse to take a relevant workplace skills assessment test. Your employer has the right to assess its operations and make staffing changes to address business needs. Given that your company is undergoing a merger, the human resources department may genuinely need to use various tools, including this skills assessment test, to understand the skillset of its newly inherited workers.
You could be shooting yourself in the foot by refusing to take the skills assessment test. In accordance with Ontario’s Employment Standards Act, your refusal could be construed as “willful misconduct, disobedience or willful neglect of duty” and grounds to terminate you with zero notice or severance.
At the same time, your employer also has a legal duty to act in good faith. As part of this good faith obligation, your employer cannot mislead you or lie about the true intent of requiring you to take the test. You may want to document, in writing, that your employer has told you that the test is being used for reskilling and upskilling – not deciding which workers to terminate or keep. Ultimately, if you are terminated and learn that your employer was dishonest with you about the true intent of making you take the test, you could be entitled to bad faith, moral, aggravated and punitive damages – in addition to any notice pay entitlements.
THE SECOND ANSWER
Sarah Levine, lawyer, Taylor Janis LLP, Edmonton
Changes in company ownership can certainly bring with them periods of uncertainty. In your case, your question seems to be one of whether an employee can be required to reprove themselves to their employer. It is also important to bear in mind that you have not been told you are being reassessed for your potential employability, but that is a conclusion you have drawn from your own research. Rather, the new human resources department has represented that it is taking a baseline assessment of its new work force.
Ultimately, the employer is entitled to assess the skills of its work force, particularly in times of change, such as new ownership. As you note, you had never been previously tested or assessed, so all the more reason for the new ownership to require a baseline assessment of your skills and abilities in order to understand what you are capable of. This could be more crucial in some roles than others, for instance, technical and skilled roles or safety-sensitive roles where a new owner wants to ensure that you are in line with any and all legal requirements of your role from a liability and safety perspective. Some retraining or “reskilling” may be determined mandatory for the new owner’s operations.
Ultimately, you could refuse to take the test, but in the absence of the baseline information the new company may let you go without cause because they do not have the necessary information about your skills and abilities to complete the bona fide occupational requirements of your role.
Rather than shooting yourself in the foot, think of this test as a way to put your best foot forward to showcase the skills you have to offer and to grow as an employee with the company.
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