The Ontario Human Rights Tribunal (“OHRT”) recently examined the law of “reprisal terminations” in the decision of Morgan v. Herman Miller Canada Inc. In this case, the employee made a number of allegations of discrimination based on race and said that the employer terminated his employment rather than properly investigate his concerns. Although the OHRT dismissed most of the allegations of discrimination on the basis of race, it did find that the employer should have conducted an investigation prior to the employee’s termination. However, rather than conduct an investigation, the employer terminated the employee’s employment and this decision to terminate after he had made his concerns known constituted a reprisal and was in breach of the Ontario Human Rights Code.
The employee had been hired by the Company in 2007 as an Installation Scheduler and he made approximately $48,000 per year. On February 27, 2010, the employee approached several members of management to raise numerous concerns, which were recorded in writing, and included allegations that he felt like we was treated like a “black slave” at the workplace. At the hearing, management of the Company admitted that the employee had raised human rights concerns. However, the Company did not investigate any of these allegations and shortly after the concerns were raised it terminated his employment on the basis that he “misused company information” and was “profoundly unhappy”.
The OHRT found that most of the Applicants allegations of discrimination prior to his termination were not substantiated. However, the OHRT held the employee had been terminated as a result of a reprisal for raising his concerns about how he perceived he had been treated at the workplace and the Company should have taken these concerns seriously and investigated them.
The OHRT summarized the elements of a reprisal as follows:
- An action taken against, or threat made to, the complainant;
- The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code;
- An intention of the part of the Respondent to retaliate for the claim or attempt to enforce a right;
- There is no strict requirement that the complainant has filed a complaint or Application under the Code; and
- There is no requirement that the Tribunal find the responded did in fact violate the complainant’s substantive rights to be free from discrimination.
The OHRT held that rather than conduct a proper investigation into the employee’s allegations, the Company chose to terminate his employment shortly thereafter. The OHRT held that the timing of the termination (timing is one of the key elements in reprisal cases), on the heels of the Employee raising his concerns, demonstrated that he had been terminated as a result of a reprisal. Further, the OHRT dismissed the Company’s argument that it had a proof that the Employee was to be “restructured” prior to his complaint because it did not reference any alleged restructuring in the termination letter or in its Written Response/Affidavits.
Consequently, the OHRT awarded the Applicant fourteen months of lost wages in the amount of $55,799.70 and $15,000 as damages for injury to dignity and self-worth.
This case highlights the need for employers to investigate allegations of a human rights nature, even when they may not have merit, especially in the context of a termination. Further, if an employer wants to rely upon an alleged restructuring as a defense to an allegation of discrimination, it must be careful to document and plead these reasons.
Simon Heath LL.B, M.I.R.
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