OLRB dismisses constructive dismissal and allegation of anti-muslim bias

November 20, 2012 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, Employment/Labour Standards, Human Resources, Human Rights

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The Ontario Labour Relations Board (OLRB) recently cautioned individuals not to make serious allegations of religious discrimination and harassment if they don’t have the proof or the evidence to back up the allegations. In The Brick Warehouse LP v. Awan (2012) CanLii 63787, the OLRB varied an Order to Pay issued by an Employment Standards Officer under the Employment Standards Act, for termination amounts owing.

Awan was an employee of The Brick and his performance began to deteriorate. The issue before the OLRB was whether Awan had voluntarily resigned to avoid being terminated or whether he was constructively dismissed as a result of harassment from his Manager.

What was clear is that prior to Awan’s resignation, he had been placed on a performance management plan. The following incidents were documented:

two written warnings for failing to follow management direction
two written warnings for allowing inventory to leave the store without payment
four customer complaints involving products, payment for the products and discounts

When the Manager confronted Awan with the most recent customer concern, Awan asked if he could resign rather than be terminated so that he would have a better chance of securing alternate employment. Awan then tendered a written resignation.

Afterwards, Awan filed a complaint with the Ontario Ministry of Labour alleging he had been harassed by his Manager and that he was constructively dismissed and therefore his resignation was not voluntary. In particular, Awan, who is Muslim, alleged that his relationship with management was strained at times over what he perceived to be an alleged anti-Muslim bias.

The OLRB concluded that Awan had voluntarily resigned and he had not been constructively dismissed. Of particular significance, was the Vice-Chair’s finding that Awan could not substantiate any harassment on the basis of his Muslim status because Awan had not provided any proof or evidence. In this respect, the Vice Chair held:

Accusations of religious discrimination and harassment are serious. Allegations of this sort ought to be backed up with cogent evidence. Awan’s evidence fell well short of such a standard. Awan’s testimony in chief took no more than a few minutes to complete and lacked as a whole both context and particulars such as when and where events took place other than a bald allegation of anti-Muslim bias surrounding his request to use a corner of an office for prayer”.

This case is a good reminder that any allegation of discrimination is serious and therefore employers should investigate and defend if necessary.

Simon Heath
Principal of Heath Law, Employment Lawyers

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Simon Heath, BA, MIR, LLB, Heath Law

Employment Lawyer and principal at Heath Law, Employment Lawyers

Simon Heath, BA, MIR, LLB, is the Principal of Heath Law, Employment Lawyers in Mississauga, Ontario. Simon represents both public and private-sector employers and employees (unionized and non-unionized) at all stages of the employment relationship with a focus in the areas of employment law, labour law and human rights law; these representations are made at all levels of courts and all administrative tribunals. Read more