Ontario worker fired after complaint, awarded $20,000
The owner of a small business has been ordered to pay a worker $20,000 for discrimination plus five months’ wages for repeatedly insulting the worker’s background and firing him right after the worker gave him a letter of complaint.
It’s a case of an employer getting itself into trouble due to a lack of knowledge about what’s appropriate, according to Rishi Bandhu, a labour and employment lawyer at Bandhu Professional Law in Toronto.
“We have a lot of work to do in our society in terms of educating people about human rights,” says Bandhu. “There are employers out there who behave in this way, but it's not always an intentionally malicious thing; it may be just - for the lack of a better word – ignorance.”
“But there is serious liability that attaches to it, and serious reputational risk as well if there's a finding of discrimination,” he adds.
The 34-year-old worker was from Ecuador. He joined MLG Enterprises, a seller of liquid sweeteners in Mississauga, Ont., as a plant manager in July 2016. When he started work, he wasn’t given any policy or procedure manuals to review.
Insults from owner
According to the worker, after about six weeks, the owner began to insult him, calling him young, stupid, and uneducated. The owner also said that he looked too young and they “do not teach molasses in Ecuador.”
On one occasion, the owner called the worker a “lazy Ecuadorian” for not coming in early.
In October, temporary employees who normally cleaned the office area had been too busy to do it. At a meeting, the owner told the worker that if no one was available to clean the toilet, the worker would have to do it.
The worker replied, “That is not going to happen” and the owner told him to take his things and leave because he was fired. The worker felt singled out and humiliated, but he stayed at MLG.
On Nov. 28, the worker left the side door unlocked for about 20 minutes at lunch because he didn’t have keys. Five people were still in the plant, but when he returned the owner shouted at him to never do it again. He received a written warning saying that it was a violation of MLG’s rules of employee conduct and further violations could result in discipline including termination – which confused the worker as other employees had done it.
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Wrong package
The same day, the worker gave a delivery driver the wrong tote for a customer. When it was discovered, the worker called the driver back and gave him the right one. The cost of the mistake amounted to “40 to 50 dollars” in transportation costs, according to the worker. However, the owner called the worker stupid and ignorant and gave him another discipline letter, calling it a “very serious error on your part” and stating that further violations of company procedure could result in dismissal.
The worker wrote a letter of complaint to the owner with the help of the Human Rights Legal Support Centre. It stated that the way he had been treated was discrimination and requested that it stop.
The worker gave the letter to the owner on Dec. 1. The owner said, “If you want to play that game, let’s play that game.”
On Dec. 12, the worker was late to work. He told the owner that he had to clear snow from the driveway, but the owner said “You Ecuadorians are so full of s---.” A short time later, they had an argument, with the owner swearing at the worker and saying he could go back to Ecuador if he didn’t like it.
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Blowup led to firing
On Dec. 19, the owner became angry after the worker left a tank open overnight, although the worker didn’t think it was a problem because it was empty. The owner insulted him and told him to leave. The worker asked if he was being fired and the owner replied yes.
Later the same day, MLG sent the worker a warning letter saying the open tank was “a very serious error” that violated company standards. It stated that further misconduct could result in further discipline including dismissal.
The worker’s record of employment (ROE) indicated that he had quit and the owner said that since he had quit his job, there was no need for severance pay.
According to the owner, the worker was dismissed for increasing hostility and an inability to perform the requirements of the position. He felt that the open tank incident was the last straw and the worker was “doing the infractions deliberately.”
The worker filed a human rights complaint alleging discrimination on the basis of race, ancestry, place of origin, and age, and his dismissal was a reprisal for his complaint letter.
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Selective memory
The owner acknowledged that he may have called the worker lazy, but he didn’t recall comments relating to Ecuador. He agreed that he said “if you want to play that way…” when the worker gave him the complaint letter, but he claimed that he was noting that he would put it in his file. He also didn’t recall what he said specifically to the worker when he was late, but said it wasn’t about Ecuador.
The tribunal found the worker to be more credible, as the owner often could not recall things that could have undermined his case, while he recalled other events in detail. He also was contradictory, as he claimed that he fired the worker for cause but told the worker and put on the ROE that he had quit. The worker, on the other hand, was straightforward and direct, said the tribunal.
The tribunal found that it was likely that the owner made the comments about the worker’s background and age. They were disparaging and based on prohibited human rights grounds, and the owner ought to have known that they were unwelcome, said the tribunal.
In addition, the harassing comments were made regularly over a “relatively short span of no more than five months” and created a poisoned work environment, the tribunal said.
“I think the biggest mistake that [MLG] made was not recognizing the potential liability, despite the fact that they may have been a little bit unsophisticated,” says Bandhu. “Had they called [an HR consultant or lawyer] immediately upon receiving the original complaint, they probably could have avoided a great deal of this damage.”
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Origin, age played part in dismissal
The tribunal noted that the owner may have been dissatisfied with the worker’s performance, but it was likely that the worker’s place of origin and age played some part in his dismissal. The worker didn’t see the final warning until after he was fired, so it was likely that it was written after the termination to provide evidence of a performance-based reason, the tribunal said.
The fact that the termination took place so soon after the worker attempted to exercise his rights and the owner threatened repercussions made the termination “tainted by discrimination” and a reprisal, said the tribunal.
MLG and the owner were jointly and severally ordered to pay the worker five months’ lost wages up to when the worker found new employment, along with $20,000 in damages for injury to dignity, feelings, and self-respect. The owner was also ordered to complete an online human rights training module and MLG to implement a human rights and anti-harassment policy.
The damages for injury to dignity, feelings, and self-respect caused by the discrimination seem a little on the low side, says Bandhu.
“The highest that I've seen for this type of thing is around $40,000, and I would have expected something around that, given the [worker’s] ethnicity and background, and the fact that the tribunal accepted those things as true,” he says. “But I'm sure that the vice-chair [of the tribunal] thoroughly made those considerations and arrived at an amount that she thought was fair.”
However, it wasn’t surprising that MLG was ordered to develop a human rights and anti-harassment policy, says Bandhu.
“When you see this type of conduct, it is usually indicative of an employer who hasn’t really turned their mind to human rights obligations, so we wouldn't see that type of policy in place,” he says. “They were ordered to develop a policy, but if the employer took the initiative to do that on their own, they might have gotten themselves in better shape to begin with.”
