The next two posts will deal with reprisals under statutes (specifically the Human Rights Code and the Employment Standards Act, 2000).
The cases I will discuss are recent and were decided in favour of the complainant. They provide important lessons for employers.
The first case arises under the Human Rights Code. The Tribunal in Morgan v. Herman Miller Canada Inc., (2013) HRTO 650 (CanLII) considered, among other things, the reprisal provisions in the Code. The case related to claims of alleged discrimination and harassment with respect to employment because of colour and reprisal.
The Applicant worked for the Respondent for approximately 2.5 years as a Installation Scheduler. He named, as a respondent, the President of Workplace Resource a division of Herman Miller.
The Tribunal summarized the allegations as follows:
1. That the applicant was assigned tasks outside of his job description (the “discriminatory allocation of tasks”), including:
- That the applicant was routinely required to work outside regular business hours, including having to respond to emails and his pager; and
- That he was assigned menial tasks and that as a black man “Mr. Fermo believed that it was the applicant’s duty to act like a janitor or a moving man” and as a “servant”.
2. That the applicant was unfairly put on probation because of an incident that occurred in May 2008 and that thereafter he was ignored and treated in an adverse manner by [the individual respondent] because he was a “black man”. The applicant further alleges that he was alienated by the entire management team (the “probationary incident”);
3. That the applicant raised a human rights issue in the winter of 2008 with respect to an email that was sent about an installation team that stated that the team looked like they were “picked up off a street corner”. The applicant alleges that this was a discriminatory comment because the installation team was “all black” (the “email incident”); and
4. That when the applicant complained about the “mistreatment instead of passively accepting the demeaning role that they wanted me to take”, no one at Herman Miller got back to him and then his employment was terminated as a reprisal.
The Tribunal reviewed the evidence, in detail with respect to each allegation and concluded that there was no breach of the Code whatsoever in respect of the matters found at (1) to (3) above. There was no basis to find in favour of the Applicant on those points.
The Tribunal then examined the evidence regarding the termination of the Applicant's employment and the various “version of events”. In the end, the Tribunal found that:
... the decision to terminate the applicant’s employment was made as a reprisal because the applicant claimed his Code rights by raising issues of harassment and discrimination in his workplace. I also find that the respondents failed to adequately address, or take any steps in response to, the applicant’s allegations of discrimination and harassment.
With respect to the issue of adequately responding to complaints under the Code the Tribunal referenced its earlier decision in Laskowska v. Marineland of Canada Inc. 2005 HRTO 30. In this case, the Tribunal affirmed, citing Moffatt v. Kinark Child and Family Services,  O.H.R.B.I.D. No. 19:
Human rights jurisprudence has established that an employer is under a duty to take reasonable steps to address allegations of discrimination in the workplace, and that a failure to do so will itself result in liability under the Code: Dhillon v. F.W. Woolworth Company (1982), 3 C.H.R.R. D/743; Olarte v. DeFilippis and Commodore Business Machines Ltd. (1982), 3 C.H.R.R. D/1705; Persaud v. Consumer’s Distributing Ltd. (1990), 14 C.H.R.R. D/23.
.... The duty to investigate is a “means” by which the employer ensures that it is achieving the Code-mandated “ends” of operating in a discrimination-free environment and providing its employees with a safe work environment.
Once the Code is engaged, the employer owes a duty to “reasonably and adequately respond to the alleged incident”. But what does this mean? The Tribunal in Laskowska distilled the obligation down to three criteria:
- Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;
- Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act; and
- Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?
The Tribunal in Morgan concluded that the Respondent failed to “act reasonably in addressing the applicant’s allegations of Code-related harassment and discrimination in an adequate and appropriate manner.”
On the issue of reprisal, the Tribunal accepted, relying on Noble v. York University, 2010 HRTO 878 that the following elements had to be established to make out the claim:
- An action taken against, or threat made to, the complainant;
- The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
- An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
In addition, the following principles are relevant:
- There is no strict requirement that the complainant has filed a complaint or application under the Code, and
- There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.
Following an assessment of the evidence, including the credibility of the witnesses, the Tribunal found that the Applicant’s employment was terminated as a reprisal “ because the applicant claimed his Code rights by raising issues of harassment and discrimination in his workplace”
The Tribunal ordered:
- Compensation for Lost Wages and Benefits in the amount of $55,799.70, less deductions. There appears to have been no evidence called with respect to the Applicant’s benefits loss and such claim was denied.
- Compensation for injury to dignity, feelings and self-respect in the amount of $15,000 were awarded. The Tribunal considered the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination in arriving at this amount.
- Future compliance remedies were also awarded in this case. Specifically, the tTribunal ordered the employer to “retain an expert in human rights, of its choosing, to review its human rights policies and to train all of its current employees holding the rank of manager or higher and those employed in human resources who perform work in Ontario with respect to the revised human rights policy, the Code and how to respond to allegations of harassment and discrimination.”
- The individual Respondent was no longer employer by the Corporate Respondent and was ordered to complete the Human Rights 101 eLearning Module prepared by the Ontario Human Rights Commission.
This is a significant case and one that demonstrates that employers who become aware of possible human rights issues must act with diligence and dispatch and, to use the words of the Tribunal “reasonably and adequately". Furthermore, reprisal complaints can be costly.