Archive for Human Rights Issues
Discrimination and Pregnancy = Bad News.
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This Human Rights Decision is a perfect example of why you should speak to a lawyer before making any decisions with respect to pregnant employees. In the case of Jessica Maciel v. Fashion Coiffeurs, the applicant Maciel was hired to work as a receptionist in two related salons operated by the respondents in the Erin Mills Town Centre. At the time she was hired she was just over four months pregnant. She alleges that she advised the manager of the salons that she was pregnant on the first day of her job and was fired shortly thereafter.
The human rights tribunal was of the view that the applicant made out a prima facie case of discrimination on the basis of sex (pregnancy), contrary to sections 5(1), 10(2) and 9 of the Code and that the respondents failed to prove a non-discriminatory explanation for the precipitous termination of the applicant’s employment. There are certain remedies set out by S. 42.5 of the Human Rights Code, one being monetary compensation. Compensation was a big issue in this hearing given that the employer prohibited the employee from satisfying “fresh hours” as required for HRDC in order to qualify for maternity leave benefits.
The applicant testified that after she was terminated from the respondents’ salons, she attempted to look for work, but did not have any success. She attributed her lack of success, in part, to the fact that her pregnancy was increasingly obvious to any potential employer. She had two interviews, but at each of these interviews, testified that the interviewers expressed their opinion that the physical nature of the work would be dangerous for a pregnant woman. At seven months pregnant, she gave up her job search.
The tribunal noted that “With no insurable hours, she was ineligible for maternity and parental benefits following the birth of her son.” As pointed out in paragraph 74 of Dodds v. 2008573 Ontario Inc., 2007 HRTO 17 (CanLII): “It is reasonably foreseeable that a pregnant woman will be unable to find alternate employment during her pregnancy to make up for any shortfall in eligibility requirements to qualify for full maternity leave and parental benefits.” The tribunal found that with respect to the maternity and parental leave, the applicant would have met the threshold for eligibility had she continued to work with the respondents until her due date. The applicant testified that she was planning to and was physically able to work until her due date. The tribunal found that these benefits would have been payable at 55% of the applicant’s averaged insured earnings (i.e., $242 / week) for 50 weeks. The gross total loss of benefits is $12,100.00. Employers – please don’t interfere with the employment of a pregnant woman without the advice and opinion of an employment lawyer. A small business like the respondents obviously did not foresee the issue of discrimination having a probably impact on Ms. Maciel not qualifying for maternity leave benefits. If you are a small business like the repondents you need to protect yourself by learning your rights.
You can contact Matt Lalande here for more information and you can read a copy of the decision below.
What exactly is the Human Rights Code?
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The Ontario Human Rights Code (the “Code”) is provincial law which protects people in Ontario against discrimination and harassment in a variety of areas, including employment. There are currently fifteen (15) prohibited grounds of discrimination in employment under the Code: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed (religion), sex (including pregnancy), sexual orientation, handicap, age (18 and over),1 marital status, family status and record of offences. I deal primarily with issues of discrimination in the workplace.
The Ontario Human Rights Tribunal is responsible for dealing with applications brought to it by individuals, groups of individuals, organizations or the commission with respect to alleged infringement of the Ontario Human Rights Code. This has been in place since following Bill 107 being proclaimed in force on June 30, 2008.
Employees have one year from the date of the alleged discrimination from which the application relates to apply to the Tribunal. Employers be careful – the old limitation was 6 months.
Haber & Associates does workplace and HR training. If you require any assistance responding to a complaint, or if you would like to be advised of any Human Rights issue give us a call.
Your employee complained about you to the Human Rights Tribunal. Don’t make it worse.
Posted by: | CommentsHow do you handle a situation involving an employee that complained about you to the Human Rights Tribunal or to the Labour Board? What do you do? You’re going to feel awkward – especially if you have a small business. Do you ignore them? What do you tell management? Do you have a meeting? Do you advise everyone? Do you advise no one? Even if the complaint is frivolous, do you cover up?
Here is a good case that tells this story. In the Ontario Human Rights Tribunal case of Chan v. Tai-Pain Vacations, Ms. Chan, alleged that her former employer, Tai-Pan Vacations discriminated against her for having filed a previous complaint with the Ontario Human Rights Commission and on the basis of her sex. It went a little like this.
She told Tai-Pan in December of 2005 that she was pregnant. They seemed to have a problem with the news and the employment relationship took a nosedive. Eventually she complained to the Human Rights Commission in 2006. It was alleged that because she complained, the company made her employment unpleasant. It was alleged that they subjected her to a number of reprisals, threats of reprisals and further discriminatory acts based on her interest in becoming pregnant. The company and her haddisagreements. She has a miscarriage and at some point, she advises the company that she wants to get pregnant again. Before it hit the board, the complaint was settled by the parties (approximately one year later on March 12, 2007). She is paid a settlement. Chan then thinks things are well and over but on April 3, 2007, approximately three weeks after this settlement, Tai-Pan terminated her. Ms. Chan contended that her termination was in reprisal for her earlier complaint and also to her stated intention to become pregnant again and thus her termination is an act of discrimination based on sex. Tai Pan denied that Ms. Chan’s termination was an act of reprisal or discrimination based on sex. The respondent submitted that Ms. Chan’s termination, which was without cause, was within Tai Pan’s prerogative given that the company met its obligations under relevant employment law.
How did the evidence come out?
Tai Pan is a travel company that operates in the Metropolitan Toronto area. The company’s principal business is operating tour buses to the Casino Rama casino. Ms. Chan’s duties included accompanying customers to Casino Rama, facilitating customers’ entry into the casino and generally being hospitable in a manner that would help build customer loyalty to Tai Pan. In December 2005 the complainant told Tai Pan management that she was pregnant. Ms. Chan asked for a transfer to an office position but was told by the respondent that no such positions were available and that she would have to be put on unpaid leave. In February 2006 the complainant suffered a miscarriage and shortly thereafter returned to work in her CSR position. She filed her first complaint with the Commission on February 24, 2008 alleging that Tai Pan’s decision to put her on unpaid leave during the period of December 2005 to February 2006 was discriminatory. This complaint was settled on March 12, 2007 In her evidence, Ms. Chan provided a history of her overall work experience at Tai Pan which included a detailed account of the seven specific actions, Six of which took place between the filing and settling of her first complaint .
The incidents were as follows:
1) the vice president of Tai Pan asked Ms. Chan why she had made her human rights complaint and it was alleged that she told Ms. Chan that it did not make sense for Ms. Chan to work for the company, and that if the company was to raise wages it would not include the complainant. Ms. Chan testified that she told Fiona Tran that she planned to get pregnant again and asked whether the company would again prevent her from working. Fiona Tran allegedly stated that Ms. Chan would not be allowed to work if she became pregnant.
2) She was left out of the annual bonus in 2006, for the first time.
3) she also did not receive a salary increase in either 2006 or 2007, for the first time.
4) The complainant testified that after her first complaint in 2006 she was denied access to a series of regular parties held by Casino Rama for preferred customers which she attended in the past.
5) The company demanded a doctor’s note with respect to her pregnancy issues. The company did not do so in the past.
6) The president told her that if she withdrew her human rights complaint she would receive her bonus and salary increase.
7) The complainant testified that she settled her first complaint on March 12, 2007. When shortly afterwards she was not issued a work schedule she suspected that she was about to be terminated. She was fired on April 7th 2007. She was told by the company that it had the discretion to terminate anyone as long as it paid.
These facts tell a very serious violation of S.8 of the human rights code. Section 8 states that : Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
The intention of section 8 of the Human Rights Code is to allow complainants to pursue their rights under the Code without fear of reprisal for doing so. The complainant argued that there was prima facie evidence that the termination was an intended reprisal for Ms. Chan’s past efforts to enforce her rights under the Code that was found in her termination letter stating that it was impossible for them to continue the employment relationship because of the past issues. The board was satisfied that a reasonable inference could be drawn from the language of Ms. Kwan’s May 14, 2007 letter in that Ms. Chan was terminated in response to her having filed a complaint with the Commission. As such this is, on its face, prima facie evidence, that Ms. Chan’s termination was an act of reprisal.
Decision
The board found that the respondent discriminated against the complainant when it terminated her in March 2008. This termination was, in their opinion, a deliberate act of reprisal for Ms. Chan’s earlier complaint and the respondent not liking the efforts it had to make to respond to this complaint. The company’s decision to terminate the complainant a mere three weeks after Ms. Chan’s first complaint was settled goes beyond being willfully blind or reckless, it was a calculated retaliation. The respondent mistakenly believed it could terminate Ms. Chan with impunity. The Tribunal found that awarding $15,000 to the complainant for monetary compensation was appropriate, plus another 42K in lost wages. This was a very substantial award and one they found to be warranted given the serious nature of the discrimination and the humiliation anad loss of dignity suffered by the complainant.
This board’s words were very severe in this case. “The company’s decision to terminate the complainant a mere three weeks after Ms. Chan’s first complaint was settled goes beyond being willfully blind or reckless, it was a calculated retaliation.” Barbara Hall, Chief Commissioner noted that “The Tribunal’s decision reflects the seriousness of this case,” said . “Employers need to understand that they cannot punish employees who pursue their rights under the Human Rights Code,” she said. This case tells a very serious lesson. If you have an employee that suddenly hit the human rights tribunal or the labour board, or seeks legal advice on a matter – try and promptly fix the situation. Don’t lose your temper, don’t announce it, don’t make light of it with anyone outside of top management and don’t speak to that employee about it alone. Don’t do anything to aggravate the situation. Employees have a right to go to the Human Rights tribunal no matter what you say or do. It is a civil right. When you start interfering with their civil rights and liberties you will face a S.8 argument, which the employee has to prove, but if he/she does like in this case, you may want to talk to your bank manager.
I am a commonsensical lawyer. Fix the situation and fast. Fix the relationship. Fix the problem. Don’t make it worse. Your employee is complaining for a reason. A human rights complaint is a complaint of last resort, unless the employee is half bent. When I hear these situations it’s hard to make me believe that you didn’t see this coming, and more so, why it wasn’t taken care of before hand.
Be very careful. The Human Rights Tribunal and the Labour Board will be like a sledgehammer on a shingle if you are or allow any discrimination or violate the major employment law.
Matt Lalande
Hamilton Employment Lawyer
This is why you need an employment consultation.
Posted by: | CommentsIn Courtland v. Roseland Public School, an application was filed with Human Rights under section 34 of Part IV of the Human Rights Code. The Application alleged discrimination in educational services because of reprisal. The applicant alleged that he was “accused” of engaging in an exchange of touching with another student. It also alleges the applicant was asked to begin to use a separate washroom from the other students.
After the application was filed, the Tribunal sent the applicant a Notice of Intent to Dismiss because the Application did not appear to allege a ground or area of discrimination under the Code and therefore does not appear to raise an issue the Tribunal can resolve.
The Tribunal invited the applicant to make written submissions explaining how the Application is within the Tribunal’s jurisdiction. The applicant did not deliver any submissions and the time for doing so has now passed.
It is important to noted that Section 8 of the Code provides as follows:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
On its face, the Application did not allege any facts which come within the scope of section 8.
The applicant did not allege that he attempted to claim or enforce his rights under the Code, that he instituted or participated in proceedings under the Code or that he refused to infringe the right of another person under the Code.
Remember, the jurisdiction of Human Rights is based upon the Code, which prohibits discrimination in goods, services and facilities, including educational services, on the basis of protected grounds listed in the Code. It does not have a general power to inquire into educational relationships and difficulties that may occur in those relationships.
The applicant did not provide a basis for his claim of reprisal that comes within the meaning of the Code, nor did he set out any other ground of discrimination or basis upon which he alleges the Code was violated. Accordingly, the Tribunal did not have jurisdiction over the Application and they tossed his application.
