Human Rights Tribunal Permits Employer to Reap Benefits of a Clear Violation of the ESA, as it applies to Unpaid Internships in Age Discrimination Case

Posted: August 5, 2013 in Age, Employment Standards Act
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Beautiful Ageing face eyes

In 2011, Lina Rocha responded to a job advertisement for a personal assistant/receptionist position at Pardons and Waivers of Canada, paying $11.00 per hour for 30 hours per week. Lina was graduating from Microskills and seeking a placement for six weeks. In her email to Pardons and Waivers, Lina mentioned that she would be willing to “for 6 weeks free”. After an exchange of information, Lina was invited to an interview. Prior to the interview however Pardons and Waivers called Lina and asked her how old she was. Lina was turning 45. Lina than received an email saying that the “placement is not suitable for this position”

The Tribunal found that Pardons and Waivers had breached the Code in withdrawing the offer to attend an interview after Lina gave information about her age. During the hearing, Lina stated that she was stressed and depressed following the incident, believing that “it would be hard to find a job with my age…no one would want to hire me”.

In determining remedy, Vice-Chair Judith Keene cited a recent decision of the Tribunal[i] wherein the Tribunal considered two approaches that have been used in the past in assessing the damages for lost opportunity for individuals who did not successfully obtain job postings for discriminatory reasons:

  1. In the first approach the Tribunal would take into account the fact that the Applicant might not have obtained the position in any event, even in the absence of discrimination. If there is a serious possibility that the individual would have obtained the position, then there is loss that is capable of giving rise to an award of damages. The assessment of the amount of damages requires an assessment of the likelihood that the person would have obtained the position in any event.
  2. The second approach would require the Tribunal to assess, on a balance of probabilities, whether or not the Applicant would have obtained the position. If the Tribunal determined he or she would have, damages for lost wages should be awarded. If the Tribunal decided that he or she would not have obtained the position in any event, the Applicant would not be awarded any damages for lost wages.

Vice-Chair Keene adopted the first approach and found that “there is at least a 50% likelihood that the applicant would have continued in employment with the respondent beyond the six weeks of her initial unpaid placement”. What is troubling about this decision is that Vice-Chair Keene did not award lost wages for the six week period that Lina offered to work for free. Lina was in a particularly vulnerable position – she was 45 years old, recently divorced and trying to enter the labour market after a lengthy absence. Vice-Chair Keene acknowledged this, stating at paragraph 6:

The applicant indicated that she had undertaken a job skills upgrading course in computer and customer service skills, after a period of difficult personal circumstances that included the end of her marriage. She had wanted to get into the workforce and do something on her own…

Vice-Chair Keene, a respected members of the Tribunal with extensive experience in human rights, made a critical error in this decision. Lina’s “internship” or offer of free work would not have met the criteria set out in the Ontario Employment Standards Act. The Act sets out the minimum employment entitlements for all workers in Ontario.

Unpaid Internships and the Employment Standards Act

There are two exceptions within the ESA. The first exception applies where the intern is performing their internship under a defined school, college or university program and is not doing the work of an employee.

The second exception applies where the employer is providing training. Within this exception are six criteria must be met before a company can offer an unpaid internship to an employee:

  1. The internship must have an educational purpose for the Intern;
  2. The training must benefit the Intern;
  3. The training cannot benefit the employer in any real way;
  4. The Intern does not displace employees of the person providing the training;
  5. The Intern should not expect compensation for his or her work and must explicitly be told they will not receive compensation, and
  6. The Intern should not be promised a position in the future as incentive to work for free.[ii]

Lina did not have the ability to contract out of the minimum entitlements, and given that the advertisement was for an employee, it certainly could not be suggested that Lina’s situation would fall under criteria 3, 4, and 6 above. The Tribunal did not provide an explanation to explain why an employer would be permitted to reap the benefit of a clear violation of the Employment Standards Act.
Perhaps this is an example of the Tribunal failing to adequately grasp the law separate and apart from the Human Rights Code. Perhaps it was just an oversight.

Case Citation (Liability Decision):   Lina Roche v. Pardons and Waivers of Canada, a division of 1339835 Ontario Limited, 2012 HRTO 2234

Case Citation (Remedy Decision):   Lina Roche v. Pardons and Waivers of Canada, a division of 1339835 Ontario Limited, 2013 HRTO 537

[i] Ravi De Souza v. 1469328 Ontario Inc., 2008 HRTO 23

[ii] See section 3(5) of the Act which excludes individuals “who perform work under a program approved by a college of applied arts and technology or a university.” Then see section 1(2) of the Act which sets out the criteria which makes a person receiving training from an employee, an employee and subject to the minimum standards in the Act.

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