Is an act of reprisal in response to an unfounded human
rights complaint grounds for an award of damages under the Ontario Human Rights Code? According to a recent decision from the Human Rights Tribunal of Ontario,
Morgan v. Herman Miller Canada Inc., 2013 HRTO 650 (CanLII), the answer is
yes.
The case is interesting because it stands in stark contrast
to decisions taken by the Ontario Labour Relations Board with respect to claims
of reprisal following unsuccessful claims of workplace harassment. On this
latter point I would encourage readers to review my post Workplace Harassment Complaints and Bill 168.
The Morgan Decision
The Morgan case concerned an application brought before the
Human Rights Tribunal of Ontario by employee Aldeen Morgan. Mr. Morgan had
taken the position that he was discriminated against by his employer, Herman
Miller Canada Inc. on account of the fact that he was black man. Specifically, Mr. Morgan had claimed that he was made to perform tasks
outside his job description, which he found demeaning, and that he was put on
probation solely because he was a black man.
In her reasons for decision Human Rights Tribunal
Adjudicator Geneviève Debané found that the Mr. Morgan
had not established that the events complained of were evidence of any
discriminatory or racist conduct on the part of the employer. Adjudicator Debané
therefore dismissed those aspects of his claim.
However, although Adjudicator Debané made findings that the
incidents complained of were not motivated by racism, the Tribunal still found
that the company’s failure to appropriately respond to Mr. Morgan’s complaints
was sufficient to result in an award of damages.
The Duty to Address and Respond
In reaching the decision that Mr. Morgan had been
discriminated against, Adjudicator Debané made
reference to the 2005 decision of the Human Rights Tribunal of Ontario in Laskowskav. Marineland of Canada Inc., 2005 HRTO 30, which discusses the obligation of an
employer to adequately address and respond to allegations of Code-related
discrimination and harassment in the workplace.
Adjudicator Debané then went
on to hold that an applicant need not prove that
discrimination has occurred to benefit from the protection of section 8 of the Human Rights Code;
the applicant must only have a genuinely held the belief that the respondents
were infringing his Code rights. (See paragraph 87.)
Section 8 of the Ontario Human Rights Code provides 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.
Based on that rule of law, Adjudicator
Debané found that the decision to terminate Mr. Morgan’s employment was
made as a reprisal because he had claimed his Code rights by raising issues of
harassment and discrimination in his workplace. Adjudicator
Debané also found that the employer failed to adequately address, or
take any steps in response to, Mr. Morgan’s, albeit unfounded, allegations of
discrimination and harassment. On this second point Adjudicator
Debané wrote that:
Instead of dealing with the applicant’s allegations in an appropriate manner, the company chose to terminate the applicant’s employment. I note that the termination letter itself relies on the fact that the applicant was “profoundly unhappy”. I find that this unhappiness was a direct result of the fact that he perceived that he was being treated in a discriminatory manner because of his colour. Although reprisal need only be one factor in the decision to terminate the applicant in order to find that the applicant was terminated contrary to his right to be free from reprisal under the Code, in my view the reasons in the respondent’s termination letter were otherwise pre-textual. (Para. 108)
Remedies
In the result Mr. Morgan was awarded lost wages for a period of 14 months; based on Mr. Morgan’s
salary, the same was worth $55,799.70.
Adjudicator Debané also found that Herman Miller’s failure to address the
applicant’s workplace issues and ultimate termination from employment had a
significant impact on Mr. Morgan. She therefore awarded him $15,000 as damages
for injury to dignity, feelings and self-respect.
Finally Adjudicator Debané directed the employer to retain an expert in human rights
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.
Commentary
In my earlier post considering the issue of Bill 168 and
claims of reprisal under the Occupational Health and Safety Act, Workplace Harassment Complaints and Bill 168, I looked at the 2011 decision of the Ontario Labour Relations Board in Conforti v Investia Financial Services Inc,
2011 CanLII 60897 (ON LRB). In that case the Labour Board held that:
If an individual complains under an employer's workplace harassment policy and doesn't like the way the employer handled the investigation (i.e. it didn't interview anyone), and then that person complains to the employer about its poor investigation and is fired, the Board appears not to have the authority under section 50 to deal with that situation. The discharge is not a reprisal as defined under section 50, because the [Occupational Health and Safety] Act does not dictate how an employer will actually investigate a harassment complaint and protect a worker who complains about that practical task not being performed properly. The Act just does not give us the authority to deal with this situation. (Para. 17) [Emphasis my own.]
In my opinion the decision in Morgan is the polar opposite
of the decision in Conforti. In both cases complaints of harassment and
prohibited behaviour were made, the adjudicative body found that the complaints
were unwarranted, and partially as a result of the complaint the complaining employee was fired.
The difference between the two cases is that because Mr.
Morgan tried to assert his rights pursuant to the Ontario Human Rights Code his
termination was deemed a reprisal, but because Mr. Conforti tried to assert his
rights pursuant to the Ontario Occupational Health and Safety Act his termination was not.
While I appreciate that the decisions were decided pursuant
to different laws, clearly there is an inconsistency here.
I invite readers to provide their comments below as to which
of the two approaches to the situation they prefer. Personally, from the
perspective of protecting and enforcing employee rights, the Human Rights
approach is the more compelling of the two.
Takeaways for Employees
The takeaway for employees is that if you feel that you are
being discriminated against because you are different, and that difference is
one of those protected by the Ontario Human Rights Code, then you should inform
your employer about those concerns without the fear of reprisal. For those
looking for assistance with asserting their rights, the employment lawyers at Ottawa’s Kelly Santini LLP would be happy to be of service to you.
Takeaways for Employers
The takeaway for employers is that there is a positive
obligation to investigate and address all complaints of harassment. Even if the
allegations are unfounded, the obligation to investigate and address persists.
And, as the Morgan decision demonstrates, where an employer fails to
appropriately address those concerns penalties can and will follow.
If you are an employer in Eastern Ontario, and if one of
your employees has made a complaint of harassment or unfair treatment, it would
be prudent to seek professional legal advice. The employment lawyers at Ottawa’s Kelly Santini LLP have extensive experience providing advice to both
employers and employees and would be happy to be of service to your business.
--
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.
Sean Bawden, publisher of the law blog for the suddenly unemployed, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals. He is a trustee of the County of Carleton Law Association for 2013.
It's generally well-established, even under the OHSA, that a 'genuine belief' or 'honest belief' is sufficient to garner reprisal protection. But that's for other reasons, being that the acts historically giving rise to OHSA reprisal complaints, generally, are matters such as refusal of unsafe work, which an employee is entitled to do on the basis of "reason to believe" that certain unsafe conditions exist. As distinct from anti-reprisal provisions under other statutes, which are generally interpreted as inherently protecting good faith, but wrong, attempts to exercise statutory rights.
ReplyDeleteI've been following the Conforti line of cases at the OLRB relatively closely, and I've long thought it's out of line with other reprisal case law.
That being said, the core question in the Conforti cases can be framed as whether or not the OHSA creates a statutory right to make a complaint of harassment, such that making a complaint entails standing on one's rights in a way which would garner reprisal protection.
Conforti, in obiter, answered that it does not create such a right, but *most* of the Board's jurisprudence on the question refers to Conforti, notes that it's an open question, then proceeds to dispose of the matter on other grounds...including in some cases, troublingly, that the acts complained of in the first place don't constitute harassment.
It seems to me that, in light of the harassment provisions of Bill 168, it is no longer open to the OLRB to maintain an interpretation of the OHSA that denies that harassment compromises health and safety. If an employer is entitled to ignore its own mandatory policy, or penalize employees for using it, it rather defeats the point of having a mandatory policy in the first place.
I would also point out that, as so many things are in employment law, this is a double-edged sword. There are a number of Shah-type constructive dismissal cases where the employee never raised any concerns with the employer, but the Courts accepted that it's natural for employees to be reluctant to raise such matters. The existence of a reprisal-protected avenue of recourse for harassment, however, would be a compelling argument for employers that employees should have a positive obligation to use the harassment policy prior to taking the position that they have been constructively dismissed.
I agree with all of your points, Dennis. And the anomaly created by Bill 168, with the failure to amend section 50 of the OSHA to include making a harassment complaint protected under the anti-reprisal protections is an issue that needs addressing. On this point see my commentary in my earlier post: http://seanbawden.blogspot.ca/2013/04/workplace-harassment-complaints-and.html
DeleteI guess that my concern is not so much with the Morgan decision as it is with the Conforti decisions. That said, it looks like it may require a statutory amendment to the OSHA.