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Employer Discriminated by Terminating Disabled Employee, but Not by Paying Her $1.25 Per Hour… Reconsidered Again

Posted By Yosie Saint-Cyr On November 1, 2012 @ 9:00 am In Case Comment,Substantive Law,Substantive Law: Judicial Decisions | Comments Disabled

Last May 2012, an adjudicator upheld [1] a prior Ontario Human Rights Tribunal decision (January 2012) [2] that an employer discriminated against a long-time employee when it was decided to terminate her because she suffered from a disability. However, the damage award based on her $1.25 per hour wage rate was not reconsidered since the employee never complained during the years she worked there. The employee had been awarded damages of $15,000 for the discrimination based on her 10 years at a wage rate of $1.25 per hour.

The outcome of this case did not sit well with the public or the Ontario Human Rights Commission. As a result, another request for reconsideration was filed.

At issue in the second request for reconsideration is the Tribunal’s determination that an ongoing wage differential between disabled and non-disabled employees is not a series of incidents for the purposes of determining the limitation period provided by section 34(1) of the Human Rights Code.

Some background

The employee suffered from a developmental disability. The employer paid her less than the other employees; in fact, he paid her only $1.25 per hour. Nevertheless, the employee and her parents never indicated that there was a problem with this wage during the 10 years the employee worked there. Truthfully, the employee was very happy working her full-time job.

Then, the employer decided to terminate the employee, along with some of the other employees who suffered from disabilities. The employer called the parents of the employee and shared the news, citing that the supervisor thought the employee was unhappy in her job. This made the employee upset and depressed, because in fact the opposite was true. She loved the job.

The employee found a new job a year later, but was still unhappy about the termination. She applied her case to the human rights tribunal, alleging discrimination based on the ground of disability against the employer and the owner of the company.

The tribunal found:

  • The employer did not discriminate against the employee by paying her less than other employees who did not suffer from disabilities. The low-wage assigned to her continued over a period of 10 years, and no one raised it as an issue. It was not clear that anyone found the issue problematic. Therefore, the employer could not be found to have engaged in discrimination
  • The employer did discriminate against the employee when she was terminated. The employee had a disability, she received adverse treatment, and she proved that the disability was a factor in the adverse treatment

Since the employee was not able to provide evidence that the individual (the owner) was personally involved in the termination of her employment, allegation that the individual respondent discriminated against her had to be dismissed—the finding was against the employer company only.

Ultimately, the employee was awarded $15,000 for injury to dignity, feelings, and self-respect based on her $1.25 per hour wage rate. The employee also received compensation for lost income after she was fired at the rate of $1.25 an hour. That award came to $2,678 for lost wages for the 53 and a half weeks she was out of work before being hired by another employer.

First reconsideration

The Ontario Human Rights Commission, along with the parents and the employee, asked the tribunal to reconsider the decision because it was of public importance. They stated, “The impact of wage discrimination on vulnerable people leads to systemic isolation and segregation from society.”

Despite the employee’s lawyer’s argument that there was an ongoing violation of the employee’s rights every time she was paid less than workers without disabilities during those 10 years, the panel decided that it could not rule on the wage discrimination because:

…the applicant’s allegation that the respondents discriminated against her from the late 1990s until October 2009 by paying her less than employees who did not have developmental disabilities is out of time, and therefore outside of the Tribunal’s jurisdiction (power to decide) […] because of the amount of time that passed since [the employee] received her first paycheque about 10 years before.

The deadline to file a complaint to the Ontario Human Rights Commission is one year after the incident subject in the application. However, the law allows extensions for filing if there is a series of incidents, within one year after the last incident.

The tribunal quoted the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission), (1984):

To be a “continuing contravention,” there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.

In the tribunal’s view:

…the [employer’s] ongoing practice of paying the applicant less than employees who did not have developmental disabilities was not a succession or repetition of separate acts of alleged discrimination of the same character. Rather, it was one act of alleged discrimination in the late 1990s, which had continuing effects until the [employee’s] employment ended in October 2009. As such, the [employee’s] allegation is approximately 10 years out of time.

Since the employee could establish a prima facie case of discrimination by proving that a) she had, or was perceived to have, a disability, b) she received adverse treatment, and c) her disability was a factor in the adverse treatment, the employee’s allegation that the employer discriminated against her on the basis of disability when they terminated her employment was upheld. However, the Tribunal found that $15,000 was an appropriate award of compensation for injury to dignity, feelings and self-respect, and that $2,678.50 is an appropriate award to the applicant for lost income.

What is interesting in this case is that, 1) the Tribunal upheld an award based on less than minimum wage, 2) everybody is aware that the company is no longer in business, though the tribunal refused to hold the owner personally responsible. The employee will never be able to satisfy the judgment. 3) It is also curious as to why would the court would order the no-longer-existing company to complete the Ontario Human Rights Commission’s online training module on human rights, and provide copies of the certificates of completion to the employee, a requirement of the findings of the tribunal. How could this be useful when completed by a company that no longer exists?

You can view the first reconsideration case here [1].

Second reconsideration decision

As stated before, the above ruling did not sit well with many interested stakeholders and a request for reconsideration was filed as to the one-year limitation period and the question of a series of incidents.

On October 15, 2012, a panel of three Tribunal members found [3] that the ongoing wage differential between the employee with a developmental disability and other employees who did not have a developmental disability is a series of incidents within the meaning of the Code. As a result, that the alleged discrimination against the employee with a disability wasn’t a single act dating back to when she first began earning $1.25 per hour but had been repeated with every pay period; the complaint fell within the one-year limitation period.

Despite the reconsideration, the panel declined to reach any conclusion regarding the merits of these allegations or the appropriate remedy, should these allegations be proved. Another Tribunal hearing will have to be scheduled.

The problem, the employer has declared bankruptcy. Thus, the impact of this case will benefit other cases dealing with whether an ongoing wage differential constitutes a continuing contravention of the Ontario Human Rights Code.


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URL to article: http://www.slaw.ca/2012/11/01/employer-discriminated-by-terminating-disabled-employee-but-not-by-paying-her-1-25-per-hour-reconsidered-again/

URLs in this post:

[1] May 2012, an adjudicator upheld: http://canlii.ca/en/on/onhrt/doc/2012/2012hrto999/2012hrto999.html

[2] decision (January 2012): http://canlii.ca/en/on/onhrt/doc/2012/2012hrto68/2012hrto68.html

[3] a panel of three Tribunal members found: http://canlii.ca/en/on/onhrt/doc/2012/2012hrto1955/2012hrto1955.html

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