The Ontario Human Rights Tribunal (the Tribunal) can and does award significant damage awards against employers who decide to ignore a human right complaint.
The Celtech Plastics case
Take Celtech Plastics Ltd as an example. A former employee who was 68 years old and had 35 years service filed a complaint with the Tribunal after resigning his employment. He claimed his supervisor discriminated against him because of his age by forcing him to quit and avoid significant termination costs by assigning him too much work and yelling at him. Celtech chose not to respond to the complaint. The employee represented himself.
The Evidence that was Before the Tribunal
A Vice-Chair of the Tribunal scheduled a brief teleconference with the employee before making a decision. Based on a brief call and the employee’s written allegations the Vice-Chair concluded Celtech had discriminated against the employee because of his age.
What evidence did the Vice-Chair rely upon?
Co-workers told the employee that Celtech tried to hire younger, lower paid workers to do his job while he was laid off during the year before he quit.
Co-workers also told the employee that Celtech was trying to force him to quit to avoid paying him termination pay.
The employee did not know whether or not younger, lower paying employees were hired while he was laid off. Nor did he know whether or not one of Celtech’s managers was deliberately trying to make him quit to save termination pay. None of his co-workers were called as a witness.
Hearsay evidence like this evidence is usually not given much (if any) weight if it is lead to prove the central issue in a case (i.e whether he was discriminated against because of his age). Because the employer choose not to participate in the hearing the Vice-Chair deemed the hearsay evidence to be accepted.
What Assumptions did the Vice-Chair make?
“It is not unreasonable to accept, as a rebuttable assumption, that an employee with 35 years of service in a position will be close to if not at the top of the pay range for that position.”
The Vice-Chair also referred to an earlier decision – that the employee almost certainly did not bring to her attention – which stated, in part: “The evidence compels the conclusion that the savings in salary and the unpaid pension benefits accruing to defendants as a result of [the employee’s] discharge were the controlling economic factors behind her termination. Since such economic factors are directly related to age … reliance on them to discharge [the employee] constitutes age discrimination.”
What damages were awarded against the Employer?
The Vice-Chair ordered the employer to pay $ 27000 for violating his right to be free from discrimination which is on the high end of the range in age discrimination cases.
The employee asked for $ 27 000 compensation for wage/benefits loss. His hourly rate was $ 26 per hour and some years he earned more than $ 60 000 so he was asking for less than 6 months pay. It appears there was no evidence of any lost wages in his complaint and the Vice-Chair did not canvass this issue in the brief teleconference. The Vice-Chair informed the unrepresented employee in her decision that the principle of “reasonable notice” used in wrongful dismissal actions did not apply in human rights cases. Then she told the applicant that if he wanted to bring evidence to establish his entitlement to an order for compensation for wage/benefits loss, he must contact the Registrar. I have little doubt that, if asked, the Vice-Chair would have awarded him much more than $ 27 000 in lost wages if he had been unemployed for more than 6 months.
Although some people may think the employer got a raw deal in this case, the fact is the termination costs associated with the departure of a 35 year employee was less than 6 months pay. Most employers would be thrilled with this result.
For more information on human rights in Ontario, click here.
Lessons to Be Learned:
- If a human rights complaint has no merit then instead of ignoring it bring a motion to dismiss the complaint without a hearing.
- If the complaint has some merit, consider offering the employee a nominal amount to settle the case to avoid the significant time and costs associated with defending a complaint.
- If the complaint has some merit and an early settlement is not possible, then fully prepare for the three hour mediation that takes place before the hearing. Most cases should settle before the end of the mediation process.
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, you can contact him at 416 317-9894 or at [email protected]
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