Thursday, June 26, 2014

If I have an HR Consultant, do I really need a labour/employment lawyer?

I was at an introductory session for the Newmarket Chamber of Commerce this morning, which I recently joined.  Its President & CEO, Debra Scott, gave an excellent presentation regarding the benefits of membership.

One of the services that can be purchased through the Chamber is an HR consultant service, First Call HR.  Ms. Scott explained that the Chamber itself has recently started using First Call for its own recruitment, and spoke very highly of the services they provided, and she highlighted that, while many small businesses claim that they can't afford to pay for HR consulting, the reality is that it can be far more expensive not to.

I fully agree with that.  Getting assistance with matters like recruitment, discipline, policy development, and other aspects of HR management is crucial for any employer.  And there's some overlap between what an HR consultant and a labour/employment lawyer can do for your business, and within the scope of their expertise HR consultants can be very effective.

However, there are a few lines that can be drawn, where an employer should retain a lawyer's assistance.

Preliminary Remarks:  The Legal Monopoly and Interdisciplinary Practices

The Law Society of Upper Canada regulates the provision of all legal services and the practice of law in Ontario.  There are things that look like legal services that some HR professionals are entitled to do, but there are lines that even they can't cross.

In general, legal advice is something that is strictly limited to licensees of the Law Society, and in general the business itself has to belong to licensees.  In other words, Wal-Mart can't hire lawyers to service its clients; however, it can rent space to lawyers who will service its clients.

There are also multidisciplinary practices, subject to strict and narrow criteria, allowing lawyers to enter into partnerships with other professionals.  It can be a fairly complicated framework, but the takeaway is that, if you're receiving advice or representation that's supposed to come from a lawyer, you should make sure that you know where it's coming from.

Where you should talk to a lawyer

Certain members of the HRPA - specifically, those with the CHRP designation - have certain exemptions under the Law Society's bylaws:  Specifically, they are entitled to offer 'legal services', provided that certain other criteria are met.  The Law Society Act defines providing legal services as "conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person", including giving advice regarding rights and responsibilities, drafting certain types of documents, representing a person, or negotiating a person's legal interests, rights, or responsibilities.

Which means that there's actually quite a bit that a CHRP can do - pretty much everything up to and including representing a client in labour arbitrations, administrative tribunals, and Small Claims Court.  (The limits on non-CHRP human resources professionals are a little more grey.)

Does that mean that you should just retain an HR Consultant with a CHRP designation to defend yourself against a wrongful dismissal action at the Small Claims Court?  Probably not.  While they have an HR expertise that most paralegals lack, the reality is that litigation itself is quite a specialized field, and most CHRPs will have little-to-no exposure to it in the ordinary course.  Depending on the value of the claim, it is much more prudent to hire a paralegal or lawyer.  (And I have commented before about the value of specific expertise, too, in a niche area of law like employment law.  It is really important to have a representative at Small Claims Court who knows the area of law.)

Likewise, it is not uncommon for CHRPs to represent employers in labour arbitrations or other tribunals, but the reality is that they do not have the training or expertise that lawyers have, particularly relating to procedural or other technical legal matters - jurisdictional disputes; constitutional arguments; debates over the admissibility of evidence or burden of proof...these are all issues that can easily arise in any legal proceeding, and for which you are much better off with a lawyer.

Even short of actual legal proceedings, though, the best value for HR consultants is achieved when used in conjunction with good legal advice.  HR consultants may be able to draft policies, but will it address the needs of your business and changes in the law without compromising what it sets out to do?  HR consultants and labour/employment lawyers essentially work out of similar precedent banks.  I have my own precedents, which draw on other precedents drafted by lawyers before me, which were based on other precedents drafted by other lawyers before them.  Much of the language is age-old, and respected by the courts.  Most HR consultants will have precedents of similar origin, so the precedent itself should be pretty good, except for two things:  Firstly, who knows how old the precedent is, and whether or not it accounts for changes which need to be made based on evolving case law, and secondly, there is no such thing as a "one size fits all" policy manual.  Every employment policy and contract needs to be tailored, to some extent, to fit the needs of the employer.

So you have this good precedent, with good lawyer-drafted language, tested for enforceability a hundred times over the course of many decades, and you're asking your HR consultant to tinker with it.  You see the problem, I hope: It's like taking a high-rise drawing designed by a team of architects and engineers, and then asking the construction foreman to change the placement of the support beams.  Not only may the end result not turn out as expected, but the whole project could collapse.  The same is true of employment contracts - relatively minor errors or inconsistencies can render critical parts of the contract unenforceable.  At a minimum, you would want to ask your architects and engineers if the modifications to the design are acceptable; likewise, you want to run your policies and contracts by an experienced employment lawyer.

So while an HR consultant may well be a good starting point for your employment policies and contracts and other aspects of HR management, it is also important to have a competent employment lawyer as part of the team - lawyers bring different and specialized expertise and training to the table.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

1 comment:

  1. I just seem to have lost my first try at a post, which was probably more diplomatic. I would caution that, as noted by Prof. Doorey at York, a person can have a degree in HR and/or a CHRP designation without ever taking a single course in labour or employment law. It's not just expertise in litigation that human resource professionals lack; it can often be a lack of substantive knowledge of employment and labour law.