Tammy Pelletier worked as a housekeeper at a hunting lodge for six months each year. She was a seasonal employee and earned $ 13 per hour.
On July 1, 2013, Ms. Pelletier was injured at work. On September 10th she told the owner of the lodge that she was able to return to work. He told her that he would get back to her but ignored her calls until September 30th when he confirmed she still had a job although he did not allow her to her return to work for the balance of the hunting season.
In March 2014, Ms. Pelletier contacted the owner of the lodge about returning to work for the 2014 season. He ignored her calls but eventually told her he would let her know one way or the other but he never did. As a result, she looked for and found alternative work.
Ms. Pellier claimed she was discriminated against because of disability. In particular, she claimed that a reason the owner did not bring her back to work in September 2013 or recall her to work for the 2014 hunting season was because she filed a workers compensation claim.
The Complaint Process
Ms. Pellier filed an application under the Ontario Human Rights Code. She represented herself. Unless the parties settle, an applicant like Ms. Pellier generally has the right to go to a hearing. The owner decided not to participate in a hearing. A Vice-Chair of the Ontario Human Rights Tribunal held the hearing by phone. Only the Vice-Chair and Ms. Pellier were on the phone call.
Findings of fact
In the absence of evidence from the employer, the Vice-Chair accepted Ms. Pellier’s evidence.
In particular, the adjudicator concluded: “I find that there is sufficient circumstantial evidence to infer that a factor, if not the only factor, in the apparent decision of the respondent to not return the applicant to the workplace after her workplace injury was that she had filed a WSIA claim and/or she was perceived to be a person with a disability.”
The adjudicator ordered the hunting lodge (or its owner if the lodge had no money) the following damages:
1. compensation for lost wages for the period September 10, 2013, the date Ms. Pellier could have returned to work, until the end of the 2013 season, a period of 10 weeks ($13.50 per hour X 55 hours X 10 weeks)
2. compensation for the difference between the wages Ms. Pellier was paid in her new employment and what she could have earned had she continued to work for the respondent in the 2014 season from mid-April to mid-October 2014 a period of approximately 27 weeks ($13.00 X 30 hours X 27 weeks)
3. general damages in the amount of $12,500
On November 6, 2014, the Vice-Chair ordered the employer to pay Ms. Pellier about 3 years pay even though she was only out of work for 10 weeks in 2013, and she replaced about one half of her lost income in 2014.
The hunting lodge and its owner are jointly liable to pay these damages. In other words, if the lodge goes bankrupt the owner must pay the damages personally.
To read the full case, refer to Pelletier v. Andy Myers Lodge, 2014 HRTO 1633 (CanLII)
Lessons to Be Learned:
1. An employer should always attend a hearing that is scheduled before the Ontario Human Rights Tribunal.
2. Damage awards for part-time, low wage employees can be significant. The impact of these awards on small employers can affect the viability of the business.
3. An employer should try to settle human rights complaints as early in the process as possible no matter the size of the claim.
For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on human rights issues. If you have any questions concerning your rights and obligations in relation to your employees, you can contact him at 416 317-9894 or at [email protected]
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