A misconception regarding the Human Rights Tribunal (the “HRTO”) is that its only function is to hear human rights issues. While human rights issues should be a prevalent part of any complaint brought before the HRTO, the HRTO also deals with issues within the workplace wherein a unionized employee is not being supported by their union, has been reprised against by their employer, or has been dismissed and is entitled to back pay.
Another misconception is that HRTO awards are effectively “capped” at $25,000.00. This is simply not true. In cases wherein back pay is a component of the complaint, complainants have been awarded over $400,000.00.
As an added bonus, the HRTO complaint process is typically faster than going through the courts.
When is the HRTO a good forum to utilize in resolving a workplace issue?
The HRTO is a good forum to use wherein:
- you have been discriminated against in the workplace on the basis of race, sexual orientation, disability, and other prohibited grounds;
- wherein you have been constructively dismissed by way of not being offered a safe workplace;
- wherein you have been subjected to harassment or differential treatment by a co-worker or superior for which your union has refused to support you by way of a grievance; and,
- where you have been punished, by way of a decrease in hours, change in position, suspension or termination as a result of you bringing forth human rights, employment standards or other standards violation issues to your employer or a third party.
Other grounds may exist which is why contacting an employment lawyer is a good idea in such circumstances.
Tribunal Finds That Action Against Union Not Bar To Complaint
Human Rights matters are not always cut and dry. Quite often, specifically in a unionized environment, employees find themselves at a stand-still. They are being discriminated against or reprised against and their union refuses to support them. In the matter of Vasey v. St.Michael’s Hospital 2010 HRTO 393, the Applicant’s union refused to process a grievance regarding the discriminatory treatment she had been subjected to at work. She subsequently filed a duty of fair representation (“DFR”) complaint with the Ontario Labour Relations Board (“OLRB”). When the matter was before the HRTO in 2010, the Respondent claimed that the complaint should be barred based on the fact that the matters had already been dealt with at the OLRB. The Respondent’s other objection was that her complaint failed to make out a prima facie case.
The Tribunal found that the matter which the Applicant had brought before the OLRB did not cover the full scope of the issues, and that the decision had been made over a year ago on that matter. The Tribunal also found that the issues of discrimination and the Applicant’s constructive dismissal did not fail to disclose a prima facie case and required a full hearing in order to be properly considered. The request for dismissal was denied. The matter went on to a hearing in 2011, however the complaint did not succeed on the basis that the Respondent did accommodate the Applicant’s disability and did not subject her to differential treatment.
Tribunal Awards Significant Back pay
In March of 2014, in the matter of Garrie v. Janus Joan Inc., 2014 HRTO 272 (CanLII) the HRTO awarded Terri-Lynn Garrie $124,124.00 in back pay, $19,613 in lost income for the manner of her termination and $25,000.00 in general damages for violations of the Ontario Human Rights Code, R.S.O. 1990, c.19 (the “Code”). Garrie had been working for her employer for over 10 years, making only $1.25 per hour. Garrie’s intellectual disability was what ultimately allowed her employer to take advantage of her for such an extended period of time.
Tribunal Awards Additional Damages for Employer Reprisal
In the 2013 matter of Monrose v. Double Diamond Acres Ltd and Jeffrey Carreiro 2013 HRTO 1273, the Applicant, who was subjected to discrimination and threats within the workplace, even being called a “monkey” brought these issues forth to the company owner, and was subsequently terminated, which resulted in the Applicant being forced to return to his home country. The Applicant made a complaint to the HRTO was awarded an extra $15,000.00 in general damages for his employer’s actions in reprising against him. The HRTO also made an order that the employer develop a workplace harassment policy and that all employees be retrained on human rights within the workplace.
Advice for Employers
As an employer, you have a duty to ensure that employees are treated fairly and are not subjected to differential treatment or subsequently punished as a result of bringing forth a complaint regarding that treatment. Contact an Employment Lawyer today if you are unsure as to whether a matter was dealt with incorrectly or whether your workplace policies on harassment and violence are being implemented and enforced properly.
Advice for Unions
Unions do have a right to refuse to support employees. But in cases where that refusal is in bad faith or without sufficient reasoning, the decision to refuse should be reconsidered. The tribunal supports claims against both a union and employer as outlined in the complaint form. Contact an employment lawyer if you are unsure as to whether a refusal to back a complaint may result in costs being awarded against you.
Advice for Employees
If you are a unionized employee or a non-unionized employee who has been treated on a differential basis based on a prohibited ground, and your union/employer has not provided you with a resolution, or they have reprised against you for bringing forth such issues, you may have grounds for a human rights complaint against your employer and/or union. As the case law above demonstrates, the HRTO is a suitable forum for such matters and is not necessarily limited to a $25,000.00 award. Contact Monkhouse Law today for a free consultation.