Lack of evidence works against employer at the HRTO

September 10, 2018 Kevin Sambrano, Sambrano Legal Services Employee Relations, HR Policies and Procedures, Human Resources, Human Rights

Evidence plays a critical role in any civil proceedings, particularly before the Human Rights Tribunal of Ontario where once an applicant has made out a prima facie case of discrimination, the onus shifts to the respondent to justify their conduct.

In the matter of Puniani v. Rakesh Majithia CA Professional Corporation, after being terminated from her employment, the applicant filed a complaint with the Human Rights Tribunal of Ontario alleging discrimination based on sex. The respondents denied any such claims and alleging the reason for the applicant’s termination was related to job performance.

The matter

The applicant had begun work with the respondents in September of 2014. That October the applicant confirmed to staff that she was pregnant. The applicant testified that she was eventually confronted by one of the respondents who seemed visibly upset by the news, remarking, “We will see what needs to be done.”[i] Subsequently, the applicant received a notice of termination with no reasons given. The applicant indicated that when she inquired further, she was told that the notice was issued as she would be leaving soon.[ii]

The hearing

During the course of the hearing, the respondents submitted that the reason for the termination was due to poor job performance, although there was very little documentary evidence or otherwise to support this position. Although the respondents did point to a number of unfavourable assessments conducted by the program that subsidized the applicant’s wage, the Tribunal determined the reports had not been brought to the applicant’s attention.

The law

Section 5(1) of Ontario’s Human Rights Code states:

“Each person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.”

The decision

The Tribunal determined that the respondents had breached the “code”, and as such awarded the applicant over $20,000 in damages representing lost income, lost employment insurance benefits, as well as compensation for injury to feelings, dignity and self-respect.

The takeaway

The question becomes, what may have helped the respondents in this matter?

1. It appears that in their zeal to fill a position, the employer may not have thoroughly screened the applicant. As per the limited evidence, there did seem to be objective documentation that there were performance issues with the applicant.
2. A more robust documentation and evaluation process in regard to employee performance issues or concerns may have been helpful. If any job-related concerns had been brought to the attention of the applicant in a timely manner, the employer’s position would have been much stronger.
3. No doubt if the employer had chosen to seek legal counsel prior to the employee’s termination, presumably the employer would have been advised of the pitfalls of their approach, or at very least, the optics of the conduct.

[i] Puniani v. Rakesh Majithia CA Professional Corporation, para. 29

[ii] Ibid., para. 32

Related reading:

Pregnancy and the burden of proof: Grudonic v. Ray Daniel Salon & Spa
Sloan v. Just Energy Corporation: Pregnancy and fairness under the Code
Maciel vs. Fashion Coiffures: pregnancy and employer’s continued obligation under the “Code”
Lugonia v. Arista Homes: Pregnancy, short-term contracts and the “Code”
Does the Tribunal have the power to deal with allegations of “unfairness” at work?

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Kevin Sambrano, Sambrano Legal Services

Paralegal at Sambrano Legal Services

Kevin Sambrano, B.A.A. is a paralegal who is passionate about law. Kevin has the distinction of being the first paralegal candidate to participate in the Community Legal Aid Services Programme at Osgoode Hall Law School. Sambrano Legal offers legal representation in human rights, landlord and tenant, employment, and Small Claims Court matters within the GTA. Kevin has been a regular contributor to First Reference Talks since 2014 with over 44 published articles relating to human rights and employment law.Read more

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Latest posts by Kevin Sambrano, Sambrano Legal Services (see all)

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