Posts Tagged ‘Reprisal’

Businessman

Employers can be liable for reprising against an employee who makes an allegation of discrimination in the workplace – even if the allegation is unfounded.

The Human Rights Tribunal of Ontario recently released its decision in Morgan v. Herman Miller Canada Inc. Aldeen Morgan worked for Herman Miller Canada Inc. from 2007 until 2010. Morgan alleged that his employer had discriminated against him on the basis of his colour by assigning him demeaning tasks, inappropriately disciplining him and ultimately firing him for complaining about the mistreatment he had been experiencing.

Vice-Chair Geneviève Debané found that Morgan had failed to establish that his employer had discriminated against him on the basis of his colour. The allegations of discrimination were unfounded, however Vice-Chair Debané found that Morgan genuinely believed his employer had infringed his Code rights.  Debané found that Herman Miller had failed to address the complaint, and rather terminated Morgan because of his allegations. In doing so, Debané found that Herman Miller had reprised against Morgan contrary to the Code and ordered in excess of $70,000.00 in damages.

This decision has received substantial criticism because the decision “awards significant human rights damages to an individual who had not been discriminated against in any way”. It has been called “disturbing” in a recent article by an employment lawyer. Another blogger stated:

In our time, this is what “human rights” has come down to …. punishing his employer not for treating him unfairly, but for refusing to kowtow to his threats…

Protecting employees who raise genuine concerns in the workplace related to human rights is not disturbing. What would be disturbing, in my opinion, is to allow employers to terminate employees who genuinely believe they have experienced discrimination in the workplace and who have had the courage to come forward and voice their concerns. Employers have a duty to investigate. In the absence of malice or ill intent in making the complaint, employees should be protected from reprisal. Vice-Chair Debané came to the proper conclusion in this decision.

Case Citation: Aldeen Morgan v. Herman Miller Canada Inc. and Corrado Fermo, 2013 HRTO 650

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

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