Employer liability for human rights broadening (Guest Commentary)

3 recent cases in Ontario reminder of wide-ranging discretion of tribunal in awarding damages
By David Bannon
|Canadian HR Reporter|Last Updated: 10/22/2013

The penalties for workplace human rights violations in Ontario are not insignificant — a point driven home by three recent rulings by the province’s human rights tribunal.

The rulings serve as reminders of the broad discretion of the tribunal to award damages:

• $71,000 because the employer failed to investigate alleged discrimination

• $420,000, including nine years’ back pay

• $23,500 to a migrant worker no longer living in Canada for a violation of his dignity and a breach of his right to be free from reprisal.

All three decisions contain valuable lessons for employers in their duty to accommodate employees.

No discrimination, but employee still awarded $71,000

In Morgan v. Herman Miller Canada Inc., the employee made a complaint claiming he had suffered discrimination and harassment because of his race. He also alleged he was unfairly put on probation.

The tribunal did not agree he had been discriminated against and found he was on probation because he disclosed confidential information to one of the company’s biggest contractors.

Nonetheless, the tribunal found the Ontario Human Rights Code had been breached and awarded him nearly $71,000. The award was based on the employer’s failure to investigate the discrimination complaint and for having terminated him in an act of reprisal. Two issues were found to be critically important:

• The employee raised his concerns about racial discrimination with the HR manager and director of sales. Despite their assurances, no investigation was undertaken.

• The employer’s witnesses offered a number of explanations for the termination — none gave rise to a breach of a protected ground under the code. But the varied explanations caused the tribunal to question whether the termination was actually an act of reprisal.

The tribunal made clear it did not have to find the employee was discriminated against in order to award damages. The case teaches employers two valuable lessons.

First, it is important to investigate human rights complaints in a timely manner, whether or not they are deemed “believable” at first blush. Second, even if a complaint is not well-founded, an employer can be liable for terminating an employee for having made a complaint.

9 years’ back pay

In Fair v. Hamilton-Wentworth District School Board, the employee was a supervisor of regulated substances, namely asbestos, in the workplace. In 2001, she developed an anxiety disorder related to her fear about the specific responsibilities of her job.

She received long-term disability (LTD) benefits from 2001 until 2004, at which time she was deemed capable of returning to employment. But there was no suitable position identified for the woman.

She was terminated in July 2004, based on evidence of the employer’s expert that it was unlikely she would be able to return to her position or a position with the same level of liability.

The tribunal found the school board should have investigated possible forms of accommodation with regard to the disability as early as 2002. Its failure to do so and decision to terminate the employee were a breach of the code. Especially problematic for the employer was the fact the employee had made it clear there were some suitable positions.

On the date the tribunal issued its damages award, the employee had been absent from the workplace for nine years. To compensate for her losses, the tribunal reinstated her and awarded about nine years’ back pay — about $420,000.

The Hamilton-Wentworth decision is an important reminder to employers to take all steps to the point of undue hardship to ensure employees receive appropriate workplace accommodations.

As well, employers may be required to reinstate a former employee even if there are significant delays between the termination date and the date the tribunal hears a complaint of harassment or discrimination. (In this case, the tribunal acknowledged the delay was largely a result of its own processes).

Worker faces discrimination

Monrose v. Double Diamond Acres Limited involved a migrant worker employed under the Seasonal Agricultural Workers Program, contracted to work from January to September of 2009. He was terminated in June 2009 and sent back to his home country.

He alleged he had been terminated as a reprisal for voicing human rights complaints about allegedly discriminatory comments made by both a supervisor and the owner.

While the tribunal did not agree the matter of dismissal was discriminatory, it found he had been subject to discriminatory comments on the basis of his racial background. The tribunal held his termination occurred as a reprisal for his human rights complaint.

Of special interest:

• The tribunal found only one instance of a racially discriminatory comment. But it was found to be so egregious, the single incident triggered a violation of the code.

• The evidence of the employee alleging derogatory comments was not corroborated by other witnesses. However, the tribunal placed weight on the evidence of an expert in the field of migrant workers who stated this may have been because such persons are in a position of great vulnerability.

Despite no evidence to corroborate the allegations of discriminatory comments, the tribunal awarded total damages of $23,500. The employer was also required to implement a human rights policy and have supervisory employees participate in human rights training.

The Monrose decision reminds employers of the need to investigate any human rights complaints raised by an employee, and certainly not to penalize an employee making a complaint. Even a single act of uncorroborated discrimination can give rise to a violation of the code.

David Bannon is an employment and labour partner at law firm Norton Rose Fulbright’s Toronto office. He can be reached at (416) 216-3907, david.bannon@nortonrosefulbright.com or visit www.nortonrosefulbright.com  for more information.

Add Comment

  • *
  • *
  • *
  • *