Tribunal Calls False Start on Race

| January 31st, 2011 | No Comments »

Daniel Lublin writes in the Metro about the recent dismissal of an assembly line worker who was quick to assume that all harassment is gender-based.

Donna Race worked as an assembly line worker in an auto plant – an area of work typically dominated by men.  She complained to management that the volume of the music being played was affecting her hearing.  After threatening remarks from co-workers, she decided it was time to take further action.

The Ontario Human Rights Tribunal dismissed her claim of gender-based harassment based upon two key points. (1) Although one employee had called her a “bitch”, this single act did not amount to discrimination, as it was never raised as a concern to management and the employee apologized (2) The basis of Race’s complaint, as the employer successfully argued, was not gender-based but volume-based.  Since Race was unable to prove that she was treated any differently based upon her gender, the case was dismissed.

It is important to recognize that not all offensive statements are acts of discrimination.  Workplace arguments should be brought to the attention of management before taking more drastic measures.  This case comes at a good time as it should remind employees of the recent changes to the Employment Standards Act.  As a part of the process, the Ontario government’s Open for Business Act now requires employees to inform employers of concerns before making a complaint.  The hope is that this requirement will help resolve cases like this one in the office instead of the Tribunal.

Open for Business Act, Open for Criticism

| January 20th, 2011 | No Comments »

Earlier this week, the wide range of provisions in the Ontario government’s Open for Business Act came into effect.  The Act amends several pieces of legislation, including the Employment Standards Act, 2000 (ESA), with one of the goals being the protection of public interest by reducing the backlog of employment standards complaints and encouraging the public to settle employment disputes sooner rather than later.  

The changes are being advanced through the following measures:

  • The empowerment of Employment Officers to make decisions regarding timelines, and the settlement of claims;
  • A requirement that employees inform employers of complaints before an Employment Officer is assigned to investigate;
  • The provision of online tools to help with the calculation of severance pay and decisions regarding termination.

Although these provisions have the potential to reduce the backlog of employment standards claims, they may result in other undesirable effects.

Firstly, many employees will be reluctant to inform employers of complaints, for fear of being reprimanded – not all employers take constructive criticism favourably.   Though well-meaning, the causes of the forecasted reduction in the backlog may be prohibition just as much as expedition. 

The online tools, much like other free employment advice, can be misleading to both employers and employees.  Employers should not presume that plugging numbers into an online tool absolves them from liability.  Employees should be mindful of this change, as it could result in severance offers far lower than they may be entitled to, as only the minimum standards are enforced.

With these two considerations in mind, there may be an increase in cases of constructive dismissal from employees who decide to endure negative conditions longer than they would have otherwise.   Employers should not forgo informed, case-specific legal advice in exchange for free online computing.