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Human Rights and Discrimination Articles
2008: a tough year for employees
Most people believe that court decisions are too pro-employee. This is untrue. Despite employee-friendly workplace laws, Canadian employers sometimes get to call all the legal shots. Both employees, and their lawyers, should pause given some of the recent decisions of our courts....[read more]
Boss' criticisms can be perilous
Today, much of the workforce views a manager's criticism as "bullying" or "harassment". As toxic bosses have become a greater liability, their employees no longer call their doctors seeking a note for a leave of absence. Now they call their lawyers. But as harassment is often in the eyes of the beholder, when will a tough boss justify a successful lawsuit? ...[read more]
Broad remedies for discrimination
his is the tale of Ali Tahmoupour, who claimed that discrimination cost him his job. He took on the RCMP in a seven-year battle culminating in 20 days of trial - and won. ...[read more]
Caution when complaining to the Provincial Ministry of Labour
One individual's experience, told here, provides an example of why you should be careful when you call the Ministry of Labour. ...[read more]
Changes to Ontario's Human Rights Regime to impact litigants
Since the mid-90’s, dissatisfied litigants of Ontario’s human rights regime have bemoaned its apparent shortcomings. A blend of limitations, owing their origins to the faulty composition of Ontario’s current human rights legislation, have ultimately left discrimination complainants without adequate redress. Complainants before the Human Rights Commission wait years before a resolution is reached, or imposed. Conversely, since the Commission lacks adequate discretion to immediately dismiss unmeritorious complaints, innocent corporate respondents are burdened with defending marginal complaints....[read more]
Discrimination
Employees and employers make all types of wrong assumptions about the law. Seldom do their "perceived" rights exist. Often they rely on rules that have long been rejected by the courts and legal doctrines that are now invalid. Sometimes they just ignore their lawyer’s advice. As one Ontario company just learned, however, ignorance of the law is no excuse....[read more]
Don't call it "human rights"
Unlike the courts where the loser pays legal costs to the other side, human rights tribunals have no mandate to award legal costs. This serves employees' interests but not those of their current or former employers. If employees have no risk of losing at trial and paying legal costs, why not pull the trigger on an extensive complaint. ...[read more]
Employees Fired Before or After Maternity Leave
There is a scam being run by employers across the country. And it is permitted by law. An employee is fired either shortly before or during her maternity leave. She claims that she was fired because she was pregnant or took time off and that her replacement, who has less seniority, took the job she ought to have retained. The employer, of course, disagrees. Her position no longer exists, or if it does, her termination was unrelated to her leave. ...[read more]
Employers concerned for employment law tribunals
Canadian employers have historically taken an ignorant view of human rights tribunals and their often extraordinary decisions. But that may be quickly changing. Because of sweeping changes to human rights legislation and left-leaning adjudicators directed to interpret remedial legislation, such as human rights laws, in a broad and inclusive manner, employers should be very concerned. ...[read more]
Employers must ensure a harassment-free workplace
Employers have a positive obligation to investigate workplace harassment complaints in a sophisticated and professional manner. Insist that an independent investigator be hired to investigate the complaint....[read more]
Employers Should Review Contractual Hiring Practices
In today’s competitive marketplace, any advantage is a disadvantage to your opponent. Armed with the knowledge that an employer can contract out of all but its minimum statutory obligations, I’m mystified why more businesses don’t follow the trend. Nevertheless, for those proactive organizations concerned about the bottom line, the key is to draft contractual provisions that will withstand judicial scrutiny. ...[read more]
Harassed employees are no longer without remedy
Workplace abuse may have been obvious, but rarely did it amount to a paid vacation. Employees faced with a workplace abuser used to visit their doctor for a prescription or a note authorizing a leave of absence. Except in extraordinary cases, employees were bereft of a legal remedy, as courts had little appetite for walking into the workplace and ordering bosses to be nicer to their employees. The reality for most: either leave - or lose - your job. ...[read more]
Harassment doesn't belong at work
Every employer in Ontario has a legal obligation to provide a workplace free from harassment. This obligation extends to protecting you from harassing acts committed by other employees, management personnel, agents of the company, and clients or customers. Many times, both employees and employers are not clear about what their obligations are and what harassment in employment actually means. Furthermore, many people who have been subjected to harassing behaviour are not aware of what they can do to remedy the situation....[read more]
Harassment free workplaces
Employers slow to catch on the pitfalls of employees who are abused or bullied by their bosses are now singing the bad boss blues. ...[read more]
Human rights claims no longer garden variety
Canadian employers have historically taken an ignorant view of human rights tribunals and their often remarkable decisions. But that may be about to change. Because of sweeping changes to human rights legislation and left-leaning adjudicators directed to interpret remedial legislation, such as employment standards and human rights laws, in a broad and inclusive manner, employers should not be so unconcerned....[read more]
Inappropriate Interview Questions
Too many operate under the delusion that no interview question can be asked relating to personal characteristics or circumstances. However, Canadian employers are permitted to ask tough personal questions. While human rights legislation prohibits employers from making decisions based on permanent personal features such as race, place of origin, colour, religion or disability, among others, it does not prevent them from asking questions based on these grounds....[read more]
Is your Boss a Bully?
Employees faced with an abusive or harassing boss used to visit their doctors for a prescription or a note for a leave of absence. Now, armed with the knowledge that they can sue for significant damages, traumatized employees call their lawyers too. Recently, three separate court decisions reinforced the message that employees can sue for abusive, humiliating and harassing behaviour suffered at the hands of their bosses. ...[read more]
Make sure to read the fine print
In speaking recently to a forum of job seekers, I was asked what tops my list of “don’t” when it comes to receiving proper severance. Although, at first, it seemed obvious to me, I quickly realized that it was oblivious to others. Quite simply, too many employees make the strategic blunder of immediately signing a release without having first consulted with a lawyer. In fact, whether or not a release has been signed, is one of the first questions I ask when meeting with any potential new client. ...[read more]
Maternity Leave can thwart dismissal
It is one of the least understood – and most contentious – issues in employment law. An employee is fired either shortly before, or during, her maternity leave....[read more]
Medical notes are not dispositive
Employees dismissed for underperformance never go quietly. Often they complain that the cards were stacked against them or that their employer's decision was somehow unfair. But what about an employee who claims he was fired because of discrimination? Sean Carter tried this card at a recent human rights hearing and learned that proving discrimination is more difficult than he thought....[read more]
Mental distress from work is not always compensable
Having just been denied a promotion at work, Maria Amaral was crestfallen. As an employee of the Canadian Musical Reproduction Rights Agency for 23 years, Amaral thought that she should have been promoted to manager. But her boss, Caroline Rioux, thought otherwise. Shortly after the failed promotion attempt, Amaral refused to write a letter when Rioux directed her to. She was disciplined. Dejected, she let her attendance and performance dwindle. Rioux continued to warn Amaral, and eventually the agency relieved her of some of her duties. But Amaral’s absenteeism and performance worsened. The agency placed Amaral on probation and planned for her eventual dismissal....[read more]
No age limit on employees
Canadian workplaces have adapted to the ban on mandatory retirement. Many have found ways to subvert the legislation by creatively finding ways to transition older employees into retirement....[read more]
No retirement age for employees
When most Canadian jurisdictions recently eliminated mandatory retirement, workplaces across the country were forced to quickly adapt. With an ageing workforce, and compulsory retirement no longer an option, employers were suddenly faced with fewer options to transition older employees into retirement. As this scenario unfolded in courtrooms across the country, various lessons were learned....[read more]
Office romance and employment law
For Zbigniew Augustynowicz the Garden of Eden simply had too many forbidden fruits. As the owner of Metro Aluminum Products, an aluminum manufacturer in Surrey, B.C., Augustynowicz confused a failed office romance with sexual harassment. When he did, it became the recipe for a workplace disaster. ...[read more]
Permanent Illness can put your career at risk
Employers are entitled to expect their employees to show up for work. Without a valid reason, employees who don’t show up are subject to dismissal without pay. Temporary illness, however, usually offers that valid reason. But what of the employee who’s disability renders her unlikely to ever return to her job? As Terry Ann Wilmot recently learned, illness is not always a shield from dismissal....[read more]
Pregnancy and Parental Leave Raise Legal Issues
What are you rights when it comes to a pregnancy and parental leave? Recently, I received an e-mail from a Metro reader asking this question. In the correspondence, she explained that after returning from maternity leave, her employer informed her that the company had restructured during her absence, and as a result, she would now have to accept a different job than she previously held. The new job, she noted, was a significant demotion in terms of status and responsibilities. Yet, when she complained, she was told that she either had to accept it or resign. ...[read more]
Pregnant employees entitled to deference
Jessica Maciel was crestfallen. Fired on her first day of work after disclosing she was pregnant, Maciel was not about to go quietly. Just out of school, Maciel secured her first full-time job as a receptionist for Fashion Coiffures, a Toronto area beauty salon. Unbeknownst to the salon, when it hired Maciel she was four months pregnant....[read more]
The Checklist for Constructive Dismissal
Armed with the knowledge that they can resign instead and sue for constructive dismissal, employees faced with a problem at work will call their lawyer....[read more]
Tribunals are not "catchalls" for problems at work
Employees love to complain about their jobs. They often perceive mistreatment at work as an invitation to a lawsuit or a human rights complaint. This should come as no surprise since Canadian workplace laws are notoriously employee-friendly and provincial human rights tribunals often apply these laws in the complainant's favour. Many companies feel these specialized tribunals represent yet another reason to avoid doing business in Canada. However, not every grievance of unfairness at work leads to a successful human rights complaint. One Ontario employee just learned this lesson the hard way....[read more]
Tribunals cause for Employers concern
Canadian employers have historically taken an ignorant view of human rights tribunals and their often extraordinary decisions. But that may be quickly changing. Because of sweeping changes to human rights legislation and left-leaning adjudicators directed to interpret remedial legislation, such as human rights laws, in a broad and inclusive manner, employers should be very concerned. Here are some of the reasons why....[read more]
Workplace Law Basics
Employment Law Basics: This is as true in law as it is in life. Here is a sampling of some of the questions I received this week and the cautionary advice I provided to those employees....[read more]
Workplace policies
Many disputes are rooted in, and later resolved on the basis of, policy. Or at least they should be. This applies in law as much as it does in life: our courts do not always decide employment cases based on what is reasonable or just, but rather, on what makes for the best workplace policy....[read more]
Wrongful Dismissal not clear cut
Six factors to consider if you’ve recently been dismissed....[read more]