Young, inexperienced workers may be less knowledgeable or vocal about their rights, but they shouldn’t be forgotten
Jul 8, 2019
An Ontario inn failed to ensure the safety of a young housekeeper, according to an arbitrator. Shutterstock
By Jeffrey R. Smith
One of the main purposes of employment law is to protect employees, who are considered the more vulnerable party of the employment relationship.
Many things can happen in the course of employment, be it injury, harassment, demotion, and unfair dismissal, to name a few, and employees depend on their employment for not only their ability to make a living, but also as a large part of their identity. Employers are in a position of power because, generally speaking, they can more easily weather losing a particular employee than vice versa.
Employment standards legislation, occupational health and safety legislation, and the common law regime exist to help protect employees. Some employees are more vulnerable, and therefore need greater protection — particularly employees who are part of groups who may be more vulnerable in society generally: minorities, the disabled, and young, first-time workers.
Young workers just getting their feet wet in the workplace are often in a particularly weak position with regards to their employment. They’re just getting started, they have little-to-no experience, and are on the low rungs of the company ladder. They might be easily intimidated by older co-workers who have more seniority and confidence in their position and, as a result, they may be less likely to report any problems in the workplace.
But these workers have rights and employers may have to be extra vigilant in making sure they’re not subjected to bullying or harassment — not to mention trying not to take advantage of them.
An Ontario inn had an obligation three years ago when it hired a 17-year-old girl to be one of its housekeepers. The girl was still in high school and it was her first real job. However, she hadn't been working there for very long when she informed her supervisor that one of the other housekeepers was yelling and swearing at her over the quality of her work — something the co-worker did with other employees as well.
The harassing housekeeper happened to be the supervisor's sister, so the supervisor spoke to her about her behaviour but didn't issue any formal discipline. She also didn’t update the girl on the status of her complaint.
A month later, the girl hadn't heard anything else about her harassment complaint, so she and her mother brought it to the union's attention. The union then contacted the hotel's owner, who discussed it with the supervisor. The supervisor said she didn’t think the girl was doing a very good job, and the owner believed the girl's complaint was an attempt to save her job. They decided to dismiss her.
It also came to light that before the girl was fired, she had been involved in a situation where she was temporarily separated from her housekeeping partner. Male guests flirted with her and one wrapped his leg around her and kissed her on the cheek. The girl told the co-worker about it, but she said she was excited because they gave her a tip. The co-worker reported the incident to the supervisor, who made a note of it but otherwise did nothing.
An arbitrator found the decision to dismiss the girl was at least in part because of her harassment complaint. Though the supervisor likely had legitimate concerns about the girl's job performance, it was the owner's decision that was brought about by the union's communication of the harassment complaint.
The hotel failed to take adequate action after her complaint and then wrongfully dismissed her — which the owner believed he could do easily since the worker was young and still on probation.
The arbitrator also noted that although the owner didn't know about the incident with the male guests, and the girl didn't seem to have any lasting emotional effects, it had a duty to protect a worker who, as a young female, was in a vulnerable position. The circumstances in which the girl was left alone with several male guests should not have happened and violated health and safety rules.
Because of this, the hotel was ordered to pay $1,000 for failing to ensure the girl's safety, in addition to compensation for early termination.
In the case above, the employer had a young, inexperienced worker and it probably wasn't too concerned about her raising a stink about things. Though the worker made a harassment complaint, the supervisor didn't do too much about it and it didn't take steps to avoid the worker getting into risky situations. When the owner felt pressured to do more about her complaint, it seemed easiest just to get rid of her.
Employment law principles are meant to protect all workers, including those who may be more nervous to speak up about a problem. Employers who choose to ignore these workers or think they can be easily swept away could find themselves in trouble that could be easily avoided.
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Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.