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Poisoned work environment, discrimination, and undue hardship under the “Code”

law scaleThe applicant, Darryl Wesley, worked with the respondent company, 2252466 Ontario Inc. o/a The Ground Guys, performing landscape work for a period of approximately six weeks before being terminated. At the time, the employer indicated that Mr. Wesley was being laid off due to lack of work. Mr. Wesley, a gay Aboriginal man, who is also deaf, believed that he had been discriminated against and filed a human rights application. The respondents denied the allegation of harassment and discrimination.

On January 3, 2014, a hearing was conducted by teleconference without the participation of the respondents. As the respondents had elected not to participate and give evidence, the applicant’s evidence was uncontradicted.

Employment

The applicant had attended the initial job interview with an American Sign Language interpreter. It was agreed that Mr. Wesley, once hired, would communicate by writing in a note pad. During the initial training of Mr. Wesley, the employer instructed the interpreter to go home.

Mr. Wesley was the only Aboriginal person in the workplace amongst nine other employees, as well as the manager. Mr. Wesley did not disclose that he was gay. Mr. Wesley gave evidence that after a short time his co-workers seemed to become impatient with having to use the note pad in order to communicate. In addition, evidence was submitted that the manager had made sexual gestures towards Mr. Wesley, as well as sexual and homophobic comments to him in front of other employees, who laughed. [1]

On June 6, 2011, the manager wrote on Mr. Wesley’s note pad that he and 5 others were to be laid off due to lack of work. But soon after, Mr. Wesley discovered that his co-workers were still employed.

As per the Human Rights Code of Ontario, the onus is on the applicant to prove that on a balance of probabilities a breach of the Code has occurred. Given the testimony and facts, the Tribunal found that the applicant had established, on a balance of probabilities, that Mr. Wesley was subjected to harassment in the workplace, based on sexual orientation and sex. The tribunal also found that the respondents subjected Mr. Wesley to a poisoned work environment.

If sexually charged and homophobic comments and conduct contaminate the work environment, then such circumstances can constitute a discriminatory term or condition of employment contrary to s. 5(1) of the Code. See Smith v. Menzies Chrysler, 2009 HRTO 1936 at para. 151.”[2]

The Tribunal found Mr. Wesley’s hearing disability as the main factor in the respondent’s decision to lay him off.

Duty to accommodate and undue hardship

The employer has to present cogent evidence to support its position that it cannot accommodate the employee’s disability-related needs because of undue hardship. See British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, at paras. 78-79.” Although the respondents had a duty to accommodate Mr. Wesley to the point of undue hardship, when the method of communicating by using the note pad became “frustrating and less effective”, Mr. Wesley was simply laid off.[3]

Remedies

Amongst other things, the respondent was ordered to pay Mr. Wesley $8,200 as compensation for lost income, $25,000 as money compensation for injury to dignity, feelings and self-respect, a positive letter of reference and human rights training for management.

Wesley v. 2252466 Ontario Inc. o/a The Grounds Guys further underscores the employer’s ongoing duty to accommodate to the point of undue hardship, and that Code based harassment or discrimination constitutes a breach under the Human Rights Code of Ontario.


[1] Wesley v. 2252466 Ontario Inc. o/a The Grounds Guys

[2] Ibid., paragraph 36

[3] Ibid., paragraph 44

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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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