Tribunals not fair – and that’s OK (Editor's Notes)

Frivolous claims the price we pay for giving workers chance at justice
|Canadian HR Reporter|Last Updated: 08/16/2011

Human rights tribunals are expensive, biased, clogged with frivolous claims, lack a clear mandate and take too long to render decisions.

That damning statement sums up the negative thoughts of employers about the Human Rights Tribunal of Ontario (HRTO), according to a survey of 235 HR professionals by the Human Resources Professionals Association (HRPA). (See “Bias problematic at human rights tribunal: Survey.”)

Workers can file nuisance claims using legal aid, without much risk, in the hope employers will pay the worker off — regardless of the claim’s merit — because it’s the cheaper and easier route.

It’s a high stakes game of chicken. An employee could say, “Just pay me $5,000 and I’ll go away.” The employer, looking at a legal bill twice that plus the hassle of fighting a battle that could drag on for months, might be tempted to cut a cheque and end the pain.

It’s easy to understand why employers feel the deck is clearly stacked against them — because it is. And that’s no accident.

See "The historic fight against sexual harassment" to understand why employers are guilty until proven innocent. Dianna Janzen and Tracy Govereau, two Winnipeg waitresses fed up with being sexually harassed by a co-worker and the inaction of management, took their fight all the way to the Supreme Court of Canada and changed the employment landscape in this country.

The laws may have changed thanks to these two women but the behaviour in too many workplaces has not.  Visit Canadian Employment Law Today and you’ll uncover story after story of employers behaving badly, turning a blind eye or unwittingly condoning boorish behaviour.

Like the worker in British Columbia whose supervisor wouldn’t stop sending her text messages with sexual propositions and profanity. Or the black construction worker in Nova Scotia whose co-workers used the “N” word, told him a funeral home “just threw black people into a hole” and asked him if he ate chicken and watermelon. Or the farm in Quebec that had a nicely equipped cafeteria but wouldn’t let black workers anywhere near it. Instead, they had to use a filthy shack that was never cleaned, had no running water and no heat. The toilets had been condemned and graffiti at the farm read, “Here are our monkeys” and “Blacks are pigs.”

This is modern-day Canada?

These stories are the exception, not the norm. But one story is too many. In an ideal world, we could abolish the tribunals. But it’s not and we can’t. And the survey results show employers appreciate this.

Frivolous claims are the price we pay for giving all workers the ability to fight for justice. Until we stamp out poor behaviour in the workplace — a day unlikely to ever come — we can’t lock the doors on human rights tribunals.

But innocent employers are paying more than their fare share of the bill. Perhaps HRTO and the province could consider a surcharge on damages for egregious workplace human rights violations. This fund could be used to compensate employers faced with frivolous cases so they wouldn’t be forced to blink in a game of chicken.

Employers that did nothing wrong would have costs covered and it would create one more disincentive to turn a blind eye to bad behaviour.

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