legal words
At the recent human rights trial, Morgan
was unable to show that Herman Miller’s
conduct prior to his discrimination complaint
amounted to a violation of the Ontario
Human Rights Code. In fact, the Tribunal
ultimately shot down every allegation
linking his treatment in the workplace to
his race. However, Herman Miller was still
guilty of discrimination. Why?
The Tribunal found that Herman
Miller terminated Morgan because he
complained (even though those com-plaints
did not actually have any real
merit) and that the failure to investigate
his concerns was a “spectacular over-sight.”
It held Herman Miller liable to
Morgan for lost wages for a period of 14
months (despite only a three-year ten-ure),
as well as $15,000 as compensation
for injury to dignity, feelings and self-respect.
Herman Miller was also ordered
to retain an expert to review its human
rights policies and train its managerial
and human resource employees.
What becomes clear through read-ing
the decision is that, had Herman
Miller not fumbled the way it dealt with
Morgan’s complaint, it would not have
been liable for discrimination. In the end,
the judge found that Morgan was not ad-versely
treated throughout his job but he
legitimately thought that he was. After he
complained, had Herman Miller inves-tigated
and ultimately determined that
there was no merit to his concerns (as the
Tribunal did), he would not have been
able to seek damages. Instead, Herman
Miller came up with a plan to fire Morgan
for no good reason to rid itself of an em-ployee
who complained, which was the
foundation for a significant award of dam-ages
that could have been avoided.
The mistakes made by the employer in
the Morgan case provides a useful guide
for companies faced with employees rais-ing
human rights allegations:
■■ It does not matter whether an employer
perceives a human rights complaint to
have no merit. There is a legal duty to
fully and fairly investigate that com-plaint
before deciding what to do next.
■■ There must be no connection between
an employee’s honest complaint (even if
unfounded) and subsequent discipline.
The right to complaint without reprisal
is an important concept that is widely
supported by human rights tribunals.
■■ Ensure all managerial employees are
well-trained on their obligations under
human rights legislation, including the
obligation to initiate an investigation,
even if they have no human resource
function.
■■ It does not matter whether a human
rights complaint is made orally or
in writing; either way, it triggers an
employer’s obligation to investigate
it. Similarly, a complainant does not
actually have to use the words “discrim-ination”
or “human rights” to trigger an
investigation. Employers need to ex-amine
the facts and determine whether
the complaint is based on one of the
various human rights grounds. ■
Daniel Lublin and Daniel Chodos are em-ployment
lawyers at Whitten & Lublin,
assisting both employees and employers with
workplace legal disputes. Lublin was coun-sel
to Mr. Morgan. They can be reached at
www.toronto-employmentlawyer.com
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