Posts Tagged ‘Human Rights Tribunal of Ontario’

Employer Calls Migrant Workers “Monkeys” and then Fires Employee Following Complaint

Posted: August 4, 2013 in Race, Reprisal
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Wealth Disparity

In 2009, Adrian Monrose came to Canada under the Seasonal Agricultural Workers Program to work for Double Diamond Acres Ltd. During the course of his employment, Monrose and his fellow migrant workers were referred to as “monkeys” by persons in authority at Double Diamond. Monrose did something that migrant workers typically do not do (due to the significant power imbalance between employers and migrant workers) – he complained to management.

A couple of weeks later his employment was terminated. Following a hearing, the Human Rights Tribunal of Ontario concluded that Monrose was fired, at least in part, because he had complained about the “monkey” comment. Vice-Chair David Muir awarded Monrose $3,000.00 for damages to feelings, dignity and self-respect, stating:

Amongst the factors that I have considered in making this assessment was the applicant’s evidence of how it affected him to be referred to as a monkey by a supervisor and an owner of the company. I have also considered the context in which these incidents occurred, a greenhouse occupation in front of a number of other racialized migrant workers…

Vice-Chair Muir awarded a further $15,000.00 to Monrose for losses associated with his right to be free from reprisal, stating:

I have accepted…evidence…of the unique vulnerability of migrant workers and their understandable reluctance to stand up for their rights. The applicant did so in this case and paid a significant price for his having done so.

Monrose also received lost wages for the remainder of his contract that he would have received had he not been terminated (12 weeks), and Double Diamond was ordered to develop appropriate human rights policies and ensure that all employees with supervisory responsibilities complete human rights training.

Case Citation:    Adrian Monrose v. Double Diamond Acres Limited and Jeffrey Carreiro, 2013 HRTO 1273

Duty to Accommodate – Being “Right” In the End Isn’t Enough, It Matters How You Get There

Posted: July 20, 2013 in Duty to Accommodate
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Arrow moves through the walls of labyrinth

When an employer becomes aware, or ought reasonably to become aware, that an employee suffers from a disability requiring accommodation, the duty to accommodate is triggered. The duty to accommodate is a collaborative process, wherein the employee has obligations to provide as much information as is possible to assist the employer in its attempt to accommodate the employee’s needs. The employee does not necessarily have to disclose his or her diagnosis (for a more detailed discussion of information employers are entitled to in the accommodation process see my blog entitled What Questions Can an Employer Ask an Employee with a Disability?).

The duty to accommodate has two parts: (1) a procedural component, and (2) a substantive component. This article will discuss in detail the various components of the duty to accommodate and highlight a recent decision that will be of interest to employers when determining appropriate accommodation.

The Procedural Component

The procedural component requires employers to assess the individual needs of a specific employee and offer consideration of possible methods of accommodation.

The Substantive Component

The substantive component requires consideration of the reasonableness of the accommodation provided or the rationale for failing to provide appropriate accommodation.

Chen v. Ingenierie Electro-Optique Exfo Inc.[i]

In Chen v. Ingenierie Electro-Optique Exfo Inc., a 2009 decision of the Human Rights Tribunal of Ontario, the Applicant worked as a shipper-receiver for the Respondent employer. The applicant began to experience back pain in the workplace, however did not tell his supervisor. The Applicant went on vacation to China where he was diagnosed with sciatica.

The Applicant saw a Canadian physician and provided a subsequent report indicating that he suffered from sciatic. Upon receipt of eth information the employer arranged a meeting with management, human resources, and the Applicant to discuss accommodating the Applicant’s functional limitations.  Following the meeting the applicant was told to return home for two days and report back after that period (he was paid for those days and permitted to take them as sick time).

The following day after the meeting, human resources met with the plant managers to determine whether any department had positions available that could accommodate a worker with modified duties. Ultimately the employer concluded there were no positions available to accommodate the Applicant and five days later his employment was terminated.

The Tribunal accepted that there may not have been any positions in which to accommodate the Applicant however stated that the employer failed to satisfy the procedural component of the duty to accommodate for the following reasons:

  • The period of time from the date the employer learned of the Applicant’s functional limitations until the date of his termination – a mere 2 days – was insufficient;
  • The employer failed to request a functional abilities form to actually determine what the Applicant was able to physically do, and
  • The employer failed to discuss accommodation options with the Applicant.

The Tribunal ruled that an employer has a duty to make meaningful inquiries into an employee’s needs. The employer in this case was required to obtain more information about the Applicant’s limitations and spend more time assessing whether he could be accommodate. As a result of the failure to accommodate the employer was ordered to pay the Applicant fifteen weeks’ lost wages and $5,000.00 as general damages for the pain, humiliation and loss of dignity the Applicant experienced.

Conclusion

The duty to accommodate requires more than “going through the motions”. Employers should ascertain the specific limitations and abilities of their employee, and then engage in a meaningful process to determine whether accommodation is possible. The assessment should not be merely a day or two, but rather an ongoing process wherein the employer maintains communication with the employee throughout the process.

END NOTES

[i] Chen v. Ingenierie Electro-Optique Exfo Inc., 2009 HRTO 1641

Reprisal – Employers Cannot Reprise Against Employees for Raising Human Rights

Posted: July 20, 2013 in Reprisal
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Retaliation Green Road Sign on Dramatic Blue Sky with Clouds.

Section 8 of the Ontario Human Rights Code states:

Every person has a right to claim and enforce his or her rights under this Act, to institute or participate in proceedings under this Act, and to refuse to infringe the right of another person under this Act, without reprisal or threat of reprisal for so doing.

Employers cannot reprise against an employee for asserting their human rights in the workplace, refusing to infringe another employee’s human rights or filing an application with the Tribunal alleging discrimination.

The prohibition against reprisal is very important; otherwise employers could simply terminate employees who claim their right leading to a “chilling effect” on human rights across the province. The Tribunal recognized this in Noble v. York University[i], where it stated:

The prohibition against reprisal is an important provision in the Code. Its purpose is to ensure that individuals may “claim and enforce” the fundamental rights embodied in the Code without fear or intimidation.

An employee who alleges discrimination in the workplace is still protected by section 8 of the Code even if the initial allegation of discrimination is not substantiated. Section 8 is engaged when the treatment of an employee is at least in part for contacting the human rights commission, legal support centre or a lawyer, or threatening to do so.[ii] Employers must tread with caution when an employee raises human rights issues in the workplace.

The Test

In order to successfully argue a violation of section 8 of the Code an Applicant must satisfy the following three-part test:

  1. There was an action taken, or threat made, to the Applicant;
  2. The alleged action or threat is related to the Applicant having claimed or attempted to enforce a right under the Code, and
  3. There was an intention on the part of the Respondent to retaliate for the claim or attempt to enforce said rights.[iii]

In order for an Applicant to successfully argue reprisal, he or she must demonstrate that “a factor in the respondent’s behaviour was an intention to retaliate against the applicant for having asserted [his or] her Code rights”.[iv]

Proving the Respondent’s intention is often difficult for Applicants. In Jones v. Amway of Canada Ltd.[v] the Board of Inquiry stated that an inference of intention to retaliate can be established, on a balance of probabilities. Prove beyond a reasonable doubt is unnecessary. A negative action taken against an Applicant, who has raised his or her rights, in the absence of another valid explanation, will likely be sufficient to establish the inference of intent.

END NOTES

[i] [2010] O.H.R.T.D. No. 841

[ii] Murchie v. JB’s Mongolian Grill, 2006 HRTO 33 at paragraph 176.

[iii] The test is set out and discussed further in Noble, Supra note 1.

[iv] Zavarella v. Antonucci, 2013 HRTO 647

[v] [2001] O.H.R.B.I.D. No. 9

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