A recent case is a cautionary tale for all employers who are thinking about not attending a hearing at the Human Rights Tribunal of Ontario. In this case, the employer did not attend the hearing or submit any documents or witness statements for the hearing.
In February 2017, Toronto Singles, Inc. hired Susan Felton (the “Applicant”) who was almost 60 years old as a sales consultant to sell packages of dates. For example, one package cost $9,000 for seven dates.
About 6 months later, the Applicant was terminated purportedly because her sales numbers were unsatisfactory. Out of 17 sales persons the Applicant was ranked 16 for Closer Rankings. The Applicant claimed she was terminated because of her age; not because of her performance.
While employed, the Applicant sent an email to the employer which did not directly allege age discrimination but could be interpreted as claiming she was being treated differently than younger employees. The Applicant claimed she was punished for sending this email complaint contrary to the anti-reprisal provisions of the Ontario Human Rights Code.
Did the Applicant establish on a balance of probabilities that she was discriminated against because of age contrary to the Code and was punished for sending the above-noted email?
“From the circumstantial evidence I am able to infer age was a factor in her termination because when she was hired she was almost 60 years old; she was employed for 6 to 7 months; the other female employees were in their twenties and thirties; the respondent tended to hire young women; she complained about age discrimination; as an older woman she was unwilling to go along with unethical practices; there was no progressive discipline or warning that her job was at risk; and while her performance was at the lower end two younger women’s performance was around the same as or worse than hers but they were not terminated for their numbers…”
The adjudicator also concluded: “Based on the evidence before me I find that the applicant established on a balance that after she claimed her rights under the Code in her e-mail, the respondent intentionally retaliated by terminating her.”
The employer was ordered to pay the Applicant $7,889 in lost wages and $20,000 in general damages. Note: The Applicant asked for lost income for 7.5 months at $15,000 which was her base income subtracting Employment Insurance at around $547 per week.
Lessons to Be Learned
1. If an employer does not attend a hearing at the Human Rights Tribunal of Ontario there is a good chance the employer will be ordered to pay damages.
2. If an employee complains that she is being treated differently than younger workers then investigate the complaint whether or not the person explicitly alleges age discrimination.
3. If an employer terminates a sales person solely for poor sales then make sure there are bona fide business reasons for not applying the same standard to all employees regardless of age or other prohibited ground like race, gender and disability. In some cases there is more than one bona fide business reason for terminating an employer and in this scenario consider communicating these additional reasons to the employee at the time of termination.
For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416-317-9894 or at [email protected]
In Waksdale, the Ontario Court of Appeal concluded that a judge should not enforce a termination provision that is in whole or in part illegal.
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