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Posts tagged: human rights tribunal of ontario

Ontario Court of Appeal Upholds Decision to Reinstate Disabled Employee with 10 Years Back Pay: Will Human Rights Litigation Ever Be the Same Again?

By , June 15, 2016 10:01 am

I predict a recent Ontario Court of Appeal (the “OCA”) decision will have a significant impact on human rights litigation. In particular, I suspect disabled employees will start asking employers to find or create alternative positions for them if they cannot perform their job duties because of a disability, and terminated employees will start asking adjudicators to reinstate them with full back pay.

Is an Employer Required to Find or Create an Alternative Position for a Disabled Employee?

In Hamilton-Wentworth District School Board and Sharon Fair the OCA stated that an adjudicator’s decision to reinstate an employee and order the employer to pay 10 years back pay was in keeping with an earlier Supreme Court of Canada decision. In the earlier case, the court articulated an employer’s duty, short of undue hardship, to arrange the employee’s workplace or duties to enable the employee to work, as follows:

Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided. If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties – or even authorize staff transfers – to ensure that the employee can do his or her work, it must do so to accommodate the employee. [Emphasis added.]

In the Hamilton-Wentworth case the disabled employee could not perform the duties of her position but she could perform the duties of another position. An adjudicator with the Ontario Human Rights Tribunal (the “Tribunal”) found that there would have been no need for the School Board to create a surplus position, as the financial resources existed for one position, or to displace an incumbent employee, as another position was vacant.

The OCA also stated: “…to fulfil its duty to accommodate an employee’s disability, an employer may be required in an appropriate case to place a disabled employee into a position for which he or she is qualified but not necessarily the most qualified.”

Should a Disabled Employee Be Reinstated with Full Back Pay?

One the one hand, the OCA stated that while rarely used in the human rights context, the remedy of reinstatement fell within the Tribunal’s remedial jurisdiction.

When refusing to overturn the adjudicator’s decision to order reinstatement, the OCA noted that Ms. Fair’s employment relationship with the School Board was not fractured and the passage of time had not materially affected her capabilities.

On the other hand, the OCA indicated that a comparison of an adjudicator’s jurisdiction under the Ontario Human Rights Code to an arbitrator’s jurisdiction in the labour relations context was not unreasonable or unusual and referred to an earlier Tribunal decision where an adjudicator, when examining the issue of reinstatement, noted:

While reinstatement orders are rarely requested or ordered in human rights cases, they are “normally” ordered in arbitral cases where a violation of a grievor’s rights has been found, unless there are “concerns that the employment relationship is no longer viable” A.U.P.E. v. Lethbridge Community College, [2004]….. The goal of human rights legislation, which is remedial in nature, is to put the applicant in the position that he or she would have been in had the discrimination not taken place. See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998)… Where viable, reinstatement is sometimes the only remedy that can give effect to this principle.

What are the Implications of this Decision?

Will this case translate into a shift in how adjudicators exercise their remedial jurisdiction where reinstatement is no longer a rare remedy and becomes as common a remedy as in the arbitration world? If so, I think employee lawyers will start commencing more proceedings at the Tribunal as opposed to the courts all other things being equal. With the prospect of reinstatement and/or large back pay awards there will be more pressure on employers to settle at the Tribunal for larger settlements. Only time however will tell.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

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At Fault for Sexual Harassment: Employee Awarded $150,000 in General Damages

By , June 29, 2015 8:44 pm

General Damage Awards Before May 15, 2015

Since 2008, adjudicators appointed under the Ontario Human Rights Code have had the power to award unlimited general damages as compensation for injury to dignity, feelings and self-respect. Since that time however, very few adjudicators have awarded more than $ 40 000 and most awards are under $ 20 000.

May 15, 2015 Decision

That is until now. In a decision released on May 22, 2015, adjudicator Mark Hart ordered a corporation and its owner to pay a temporary foreign worker $ 150 000 in general damages because the owner sexually harassed/assaulted the worker.

The adjudicator found that the owner told the worker to perform oral sex on him on three occasions, that he engaged in sexual intercourse with her on three occasions and that the worker acquiesced because she was afraid that he would send her back to Mexico.

A Particularly Vulnerable Employee

Adjudicator Hart made his decision after 16 hearing dates. When awarding the employee $ 150 000 in general damages he took the following facts into account:

“(The employee) was 30 years old when she came to Canada. Her husband had been tragically killed, and she was left to support her two children. As a temporary foreign worker in Canada, (the employee) was put in the position of being totally reliant upon her employer. As Dr. Preibisch (an expert) testified, temporary foreign worker programs in Canada operate on the basis of closed work permits, which only entitle a migrant worker to employment with one designated employer. While theoretically possible to transfer employment to another employer while in Canada, there are significant barriers that make this practically impossible or at least very difficult. As a result, a migrant worker like (the employee) tends to be reliant upon the employment relationship with the designated employer to a degree that is not experienced by Canadian workers. Migrant workers like (the employee) live under the ever-present threat of having their designated employer decide to end the employment relationship, for which they require no reason and for which there is no appeal or review, thus being “repatriated” to their home country and thereby losing the significant economic and financial advantages of their Canadian employment upon which they and their families depend. In (the employee)’s case, the personal respondent was repeatedly explicit about this threat to send her back to Mexico if she did not comply with his demands and had demonstrated that he was capable of doing so by repatriating other Mexican women.”

Lessons to Be Learned

This case may turn out to be an outlier because the facts involved are so extreme and disturbing.

Alternatively, it may start a trend toward higher general damage awards in sexual harassment/assault cases.

It is interesting to note that the Ontario Human Rights Code (the “Code”) prohibits sexual harassment but it does not explicitly refer to sexual assault.

As a result of this $ 150 000 damage award, employees who have been sexually assaulted at work may start filing applications under the Code instead of commencing actions in the courts for civil sexual assault.

To file an application under the Code an employee does not need a lawyer and if the employee loses her case then the employee will not be ordered to pay any of the employer’s legal costs. The Code therefore provides better access to justice for vulnerable, low paid employees who have been sexually assaulted.

 

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on human rights issues. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

 

Ignoring the Ontario Human Rights Tribunal is a Very Bad Idea

By , September 10, 2014 4:31 pm

The Ontario Human Rights Tribunal (the Tribunal) can and does award significant damage awards against employers who decide to ignore a human right complaint.

The Celtech Plastics case

Take Celtech Plastics Ltd  as an example. A former employee who was 68 years old and had 35 years service filed a complaint with the Tribunal after resigning his employment. He claimed his supervisor discriminated against him because of his age by forcing him to quit and avoid significant termination costs by assigning him too much work and yelling at him. Celtech chose not to respond to the complaint. The employee represented himself.

The Evidence that was Before the Tribunal

A Vice-Chair of the Tribunal scheduled a brief teleconference with the employee before making a decision. Based on a brief call and the employee’s written allegations the Vice-Chair concluded Celtech had discriminated against the employee because of his age.

What evidence did the Vice-Chair rely upon?

Co-workers told the employee that Celtech tried to hire younger, lower paid workers to do his job while he was laid off during the year before he quit.

Co-workers also told the employee that Celtech was trying to force him to quit to avoid paying him termination pay.

The employee did not know whether or not younger, lower paying employees were hired while he was laid off. Nor did he know whether or not one of Celtech’s managers was deliberately trying to make him quit to save termination pay. None of his co-workers were called as a witness.

Hearsay evidence like this evidence is usually not given much (if any) weight if it is lead to prove the central issue in a case (i.e whether he was discriminated against because of his age). Because the employer choose not to participate in the hearing the Vice-Chair deemed the hearsay evidence to be accepted.

What Assumptions did the Vice-Chair make?

“It is not unreasonable to accept, as a rebuttable assumption, that an employee with 35 years of service in a position will be close to if not at the top of the pay range for that position.”

The Vice-Chair also referred to an earlier decision – that the employee almost certainly did not bring to her attention – which stated, in part: “The evidence compels the conclusion that the savings in salary and the unpaid pension benefits accruing to defendants as a result of [the employee’s] discharge were the controlling economic factors behind her termination. Since such economic factors are directly related to age … reliance on them to discharge [the employee] constitutes age discrimination.”

What damages were awarded against the Employer?

The Vice-Chair ordered the employer to pay $ 27000 for violating his right to be free from discrimination which is on the high end of the range in age discrimination cases.

The employee asked for $ 27 000 compensation for wage/benefits loss. His hourly rate was $ 26 per hour and some years he earned more than $ 60 000 so he was asking for less than 6 months pay. It appears there was no evidence of any lost wages in his complaint and the Vice-Chair did not canvass this issue in the brief teleconference. The Vice-Chair informed the unrepresented employee in her decision that the principle of “reasonable notice” used in wrongful dismissal actions did not apply in human rights cases. Then she told the applicant that if he wanted to bring evidence to establish his entitlement to an order for compensation for wage/benefits loss, he must contact the Registrar. I have little doubt that, if asked, the Vice-Chair would have awarded him much more than $ 27 000 in lost wages if he had been unemployed for more than 6 months.

Although some people may think the employer got a raw deal in this case, the fact is the termination costs associated with the departure of a 35 year employee was less than 6 months pay. Most employers would be thrilled with this result.

For more information on human rights in Ontario, click here.

Lessons to Be Learned:

  1. If a human rights complaint has no merit then instead of ignoring it bring a motion to dismiss the complaint without a hearing.
  2. If the complaint has some merit, consider offering the employee a nominal amount to settle the case to avoid the significant time and costs associated with defending a complaint.
  3. If the complaint has some merit and an early settlement is not possible, then fully prepare for the three hour mediation that takes place before the hearing. Most cases should settle before the end of the mediation process.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on human rights issues. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

 

 

 

 

Human Rights Update: Minimum Wage Cook Receives Large Damage Award

By , August 18, 2014 10:43 am

The Facts

Shirley Jensen worked as a cook in a restaurant and earned $ 10.25 per hour. She had fibromyalgia. To manage pain, she attended a pain clinic twice a week. From time to time, she also needed to obtain major treatments which required two days off work. These days changed when the medical facility changed its days of operation. The employer refused to permit her to change her days off and fired her. Ms. Jensen secured another job 15 weeks later.

The Complaint

Ms. Jensen filed a complaint with the Ontario Human Rights Tribunal (the Tribunal) claiming she was discriminated against on the basis of her disability. She represented herself at the hearing.

The Decision

The Tribunal ordered the two owners of the restaurant to pay Ms. Jensen 15 weeks pay or $ 7,380. Even though she did not ask for compensation for injury to her dignity, feelings and self-respect, the Tribunal ordered the employer to pay Ms. Jensen an additional $ 15, 000 in general damages.

For more information on the Ontario Human Rights Code, click here

Lessons to be learned

1. An employer must grant unpaid time off work to an employee to attend required medical appointments if the employee cannot schedule appointments outside her regular hours of work.

2. An employee can bring no cost legal proceedings against an employer under the Human Rights Code.

3. An employee can represent herself at the Ontario Human Rights Tribunal.

4. Adjudicators at the Tribunal will order an employer to pay an employee damages for the injury to her dignity, feelings and self-respect even if the employee does not ask for these damages.

5. A minimum wage employee with relatively short service can be awarded significant damages under the Ontario Human Rights Code.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

 

 

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