Monday, April 4, 2011

Elevated HR Solutions: Human Rights Tribunal and the Courts can have very different opinions

I'm often asked about the differences between a human rights hearing and a court hearing as it relates to employee/employer related matters.  How do they work?  Are they the same? Simply put: Nope, they are not the same. In most cases, the person making the claim does not have to pay anything to make a claim (unlike having to pay for a lawyer).  In addition to that, the Human Rights Tribunal only arbitrates in cases of discrimination (as in the employee was treated unfairly because of their ethnicity, religion, gender etc.)  They are not deciding if a dismissal for example, is unjust.

Here's a recent case of how an Ontario court  overturned a $36,000 Ontario Human Rights tribunal award for discrimination against an Ontario Muslim woman, saying that there was no logical or legal basis for a finding of discrimination.  As you're reading the below information remember this...from start to finish, this took 2 long years of back and fourth hearings.


The Employee:
- Audmax (the Employer) adopted a policy that banned French in the office - the Employee felt like they wrote this policy because she spoke French more than she spoke English
- Audmax banned the heating of certain foods in the microwave (those that were odorous)  - the Employee often brought food from home and heated them in the microwave and felt she was discriminated against (As an aside, I've written this policy multiple times)
- Audmax wrote up the Employee several times because of dress - the Employee originally wore professional office attire, but decided to start wearing loose robes and a head covering to represent her culture.

Audmax (the Employer):
- They implemented a policy to ban French in the office to avoid mistaken impressions (the native French speakers of the firm didn't feel discriminated against and were onside with the policy)
- The policy on microwaving certain foods - they had received multiple complaints from others regarding their allergies and smell sensitivities so they developed a policy.  This also included wearing perfumes etc.
- Dress code - they were supportive of the Employee's hijab (a regular one) but then the Employee started wearing a new hijab which the employee thought looked more professional but the CEO of Audmax felt it was a cap. 
In May of 2008, two Muslims resigned and the Employee felt like she was being targeted.  The Employer admitted they started watching the Employee more closely because she seemed to act more suspicious around the office after the resignations.  On May 27, 2008 the Employer had another disciplinary meeting with the Employee regarding computer use, microwave use, the dress code and handling of files.  As she was on probation, on June 8th the Employer terminated the Employee.   There were multiple violations in her file and they determined she could be let go with cause.

The Tribunal:
- The Ontario Human Rights Tribunal found the language policy and the Employer's monitoring of the Employee were NOT discriminatory because French was not her first language and the Employer had reasonable concerns to keep their eye on her.
- The Tribunal found the microwave policy was discriminatory because it didn't specify the foods
- The Tribunal found the dress code policy was discriminatory saying that making her dress in business attire had an adverse effect on her religious beliefs regarding modest clothing and head covering.  They said the dress code was not essential for the job, particularly the difference in the style of the hijab.

The cost to the employer: $36,000

The employer appealed the award in court...and the decision was over turned!

The Court's Reasoning:
1.) The Tribunal wouldn't allow written testimony from a witness who couldn't make it to the tribunal that day.
2.) Everyone else stopped using the microwave but the Employee - so it was easy to know who was cooking the odorous foods (she wasn't being targeted).
3.) The dress code policy was determined to not be arbitrary and was well known by all staff and all members were informed during the interview process of the dress code - therefore, the Employee was not discriminated against.  Because a traditional hijab was allowed in the past, the Court felt the Employer was accommodating.

Not only did the court overturn the $36,000 decision, they also ordered the Employee to pay $10,000 in costs to the Employer. Ouch!

For more information on the case see Audmax Inc. v. Ontario Human Rights Tribunal, 2011.

My quick thoughts:
- I could see this going either way. It really depended which judge they got in court, and fortunately for the employer they got one that one that sympathized with them.
- I probably would have just let her go, and paid her out not alleging cause.  In the end, the employer received $10,000 back - however, think of all the time (2 years!) the employer had to put into this case.  Fortunately they won.  2 weeks pay would have saved so many headaches and frustrations.

**The information included in the above blog was taken from an article from Canadian Employment Law Today.  The article is called "Employer wins appeal, saves $36,000". It is written by Jeffrey R. Smith.**

No comments:

Post a Comment