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Employers: Are your job ads in keeping with the Code?

When does a job advertisement breach the Ontario Human Rights Code? The same question was asked and answered in Wedley v. Northview Co-operative Homes Inc.2008 HRTO 13.

When the Complainant, Caroline Wedley, was terminated from her job as a cleaner, she alleged that she was told by management that they were seeking to hire two men. When later she spotted two advertisements in her local paper requesting male applicants, Ms. Wedley filed a human rights application.

In her application Ms. Wedley alleged that she was treated unfairly and was terminated due to her gender. In short, she believed her employers wanted to hire a man for her position. The Respondents, Northview Co-operative Homes Inc. (“Northview”) held that Ms. Wedley was dismissed due to deteriorating job performance and Northview’s increased maintenance needs.[1]

The question before the Tribunal was whether or not Northview had breached the “Code”.

History

Ms. Wedley began her employment with the Respondents in March of 2003. In Ms. Wedley’s three-month probationary period appraisal, which she passed with “overwhelmingly positive” responses. In fact, as a result she was given a raise.

According to the Respondents, by late August of the same year Ms. Wedley’s job performance was beginning to deteriorate. In November she was told that the Board of Directors were considering hiring additional staff but her job would not be affected.

Over the next few months management became increasingly concerned with Ms. Wedley’s job performance. She was spoken to a number of times and a number of memoranda sent. On January 8, 2004 Ms. Wedley was called into the office and informed that her employment was being terminated. When she asked management as to why, Ms. Wedley testified that she was told that management would be “hiring two men because more maintenance skills were needed.”[2]

The advertisement

On January 11, 2004 three days following her termination, Ms. Wedley spotted two job advertisements in the local newspaper— “Cleaner/Maintenance Man” and “Maintenance Man“. Both advertisements were for the position which Ms. Wedley had previously held.[3]

During the Tribunal hearing, Northview conceded that the January 11, 2004 job advertisements were contrary to section 23(1) of the Code.[4] Section 23(1) reads:

The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination. R.S.O. 1990, c. H.19, s. 23 (1).”

Nonetheless, the Respondents asserted there was no “connection” between Ms. Wedley’s dismissal and the discriminatory job advertisement, and that the use of the term “maintenance man” was simply a colloquial expression for the job title.[5]

The Tribunal decision

The Tribunal concluded that although the decision to terminate Ms. Wedley’s employment was not tied to gender, the evidence did support the finding that the “execution of the dismissal” was tainted by gender. The Tribunal had determined a nexus between Northview’s alleged response when Ms. Wedley had asked why she was being terminated, and the fact that three days later there appeared the discriminatory job advertisement. The Tribunal found it to be more likely than not that management did in fact tell Ms. Wedley that Northview was seeking to hire two men.

As gender was an element in the dismissal conversation and subsequent job advertisement, the Tribunal found that the Respondent had infringed Ms. Wedley’s right to equal treatment in respect of employment without discrimination because of sex.[6]

Ms. Wedley was awarded $5,000 as compensation for her loss of the right to be free from discrimination under sections 5(1) and (9) of the “Code”. In addition, the Tribunal ordered that Northview put into place a number of Public Interest Remedies including an Anti-Discrimination Policy and Human Rights Complaints Procedure.

Of importance to both employer and employee is the distinction which the Tribunal made between gender not playing a role in Ms. Wedley’s termination, while it still remained a factor in the execution of the termination. Preferences, or exclusionary job ads and the like, are only permissible in special circumstances as defined by the “Code”.


[1] Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13 (CanLII) para. 3

[2] Ibid., para. 19

[3] Ibid., para. 20

[4] Ibid., para. 48

[5] Ibid., para. 48

[6] Ibid., para. 71

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Kevin Sambrano

Kevin Sambrano, B.A.A. is a paralegal who is passionate about human rights. Kevin worked for a number of years as a tenant advocate organizing over 100 tenant associations and taking part in over 80 positive outcome negotiations. He completed his internship at a law firm, focusing in human rights and employment law. Recently, Kevin opened the doors of Sambrano Legal Services offering representation in human rights and employment law in Toronto and the GTA.Read more
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