Training staff on human rights

Management staff need to understand legislation

A little bit of training can go a long way when it comes to being sued for discrimination. Employers should invest time training employees in the field of human rights.

With the growing number of cases alleging human rights violations in the courts, it is critical that all employees at the management level understand the legislation under which they are governed and the duty to comply with the legislation, particularly given the damages which can be awarded for bad faith if there is non-compliance.

The Canadian Human Rights Act at the federal level, and each of the provincial human rights codes, enshrine fundamental freedoms and govern human rights issues. The legislation also provides a comprehensive procedure for investigation and remedies to be obtained.

In Ontario, the Human Rights Code states, “every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, same-sex partnership status, family status or handicap.”

It goes on to state every employee has a right to freedom from harassment in the workplace by the employer, agent of the employer or another employee.

It makes it clear that discrimination and harassment in the workplace are strictly prohibited. Employees and employers need to understand this given the significant damages which could result.

In Rowbotham v. Addison, Florence Rowbotham was an accounts receivable clerk at a medical clinic. She had been at the clinic for 18 years. Due to carpal tunnel syndrome she was forced to take sick leave. Upon her return, she provided a note from her family doctor indicating the restrictions required. But she was told by her manager that her job had been eliminated due to a re-organization.

Rowbotham was offered an alternative position sorting old files and records in the basement of the building in which she worked. Although the offer did not alter her rate of pay or benefits, she viewed this as a demotion and filed a human rights complaint.

The British Columbia Human Rights Commission found the employer had met its duty to accommodate her disability. But Rowbotham wasn’t satisfied with that decision and, shortly thereafter, started a wrongful dismissal lawsuit alleging she had been constructively dismissed when she was not provided with a bona fide offer of alternative work. She sought damages for the employer’s bad faith.

The court found that Rowbotham had been constructively dismissed and she was entitled to damages for bad faith given that the employer acted indifferently to the vulnerability of her position. This resulted in a two-month extension to her reasonable notice period.

In Galbraith v. Acres International Limited, David Galbraith was hired in 1988 as controller of Acres International. The expectation was that he would replace the chief financial officer who was due to retire. Galbraith’s duties included responsibility for the financial services group which included treasury, accounting, commercial, financial analysis and management information services.

He was appointed vice-president finance and vice-president of Acres International. In 1990 he was appointed to the position of secretary of both companies and treasurer of Acres Inc. In 1994, the management information services and commercial services responsibilities were transferred from him, yet he continued to have overall responsibility for financial matters. In 1997, 90 per cent of Galbraith’s time was spent on duties of a chief financial officer. He reported to the president.

In 1997, management consultants were hired to look at Acres’ financial performance. The report from the consultants recommended that “fresh younger members be introduced to the management team.” In 1997 the president proposed that a financial officer be hired to takeover the accounting responsibilities from Galbraith.

Galbraith would then have the responsibility for the functions of treasurer and corporate security and have responsibilities for banking, taxes and mergers and acquisitions. He would report to the new financial officer with respect to the duties of corporate secretary.

His salary would be frozen except for increases in the cost of living. The duties of treasurer and corporate secretary previously had been performed by subordinates who reported to Galbraith. Galbraith said he was insulted about being asked to take on roles performed by his subordinates. He brought an action for wrongful dismissal.

The court agreed with his submission that the change in job duties constituted a constructive dismissal. The court found his age was a motivating factor in the employer’s decision to change his employment duties. The court concluded the notice period awarded to the plaintiff should be increased from 15 to 18 months given the bad-faith change of duties due to his age.

The mistake here was for management to focus upon age, a prohibited ground of discrimination. Management-level employees, in particular, need to know that it is discriminatory to say that “younger members” should be introduced to a team. Using a phrase like that is just as discriminatory as not accommodating a person with a disability. In light of decisions like the above, it is critical employers invest the time and effort in order to educate employees on human rights.

For more information see:

Rowbotham v. Addison [2000] B.C.J. No. 250

Galbraith v. Acres International Limited, [2001] O.J. No. 1036 (Ont. C.A.)

Natalie MacDonald is an associate with Grosman, Grosman & Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or [email protected]. Look for her next column in the Dec. 1, 2003 Guide to Recruitment and Staffing.

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