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makes whatever follows – including a ter-mination
– less complex and problematic.
DISCRIMINATION
The idea of equality in the workplace –
that people should be treated the same,
regardless of individual characteristics –
may seem self-evident.
“However, how that looks on a day-to-
day basis given the variety of factual
circumstances that present themselves
becomes difficult,” said Melanie Reist of
Morrison Reist. “All of the different pro-hibitive
grounds of discrimination under
the Human Rights Code mean you’re
dealing with a lot of variety: ethnicity,
race, creed or religion, disability – so it’s
multi-faceted.”
She added, “I think what’s also problem-atic
is that the decisions coming out of the
tribunal often seem somewhat hard to rec-oncile
and inconsistent. It’s a difficult area
for lawyers as well, and that’s why it’s really
critical for HR to have an understanding
of the law and the obligation that the em-ployer
has.”
Tough situations can happen in any
workplace, despite preventative measures.
That’s where having really solid policies
and established processes are key.
“Where an employer has policies and
procedures in place and those are followed,
then even if the tribunal decides against an
employer, it will significantly reduce the li-ability
of that employer,” said Reist. “Just
take your time if a situation comes up.
Gather information, see the issue from all
sides and refrain from quickly jumping to
any conclusions.”
HUMAN RIGHTS DAMAGES IN
WRONGFUL DISMISSAL CASES
A landmark case from September 2013
marked the first time a court awarded
damages for a violation of the Human
Rights Code in a wrongful dismissal case.
“The judge awarded $20,000 in gen-eral
damages for violation of the Code
in addition to wrongful dismissal dam-ages,”
said Justin Heimpel with Sorbara,
Schumacher, McCann LLP in Waterloo,
Ont. “It’s expected that this case will be
used as a precedent for other cases in
which these damages are claimed.”
For HR professionals, this underscores
the ongoing need to be aware of potential
human rights issues in the workplace, es-pecially
when it comes to matters involving
disability and discipline or termination.
“In last year’s case, the employee was ter-minated
without cause during a disability
leave,” said Heimpel. “The court was criti-cal
of the employer for being disingenuous
with the employee in terms of her return
to work and the reason that was given for
dismissal.”
Ultimately, the court found that the
employee’s disability was a factor in the
decision to terminate, and this is a viola-tion
of the Code.
“HR professionals need to proceed
carefully when it comes to disability
leaves,” said Heimpel. While there may be
special circumstances that warrant a dif-ferent
approach, it’s generally advisable to
avoid terminating employment while the
individual is on a disability leave, or imme-diately
upon his or her return to work. ■
“BE VERY DILIGENT ABOUT
ESTABLISHING, IMPLEMENTING
AND REVIEWING YOUR POLICIES.”
– SHANA FRENCH, SHERRARD KUZZ LLP, EMPLOYMENT & LABOUR LAWYERS
24 ❚ OCTOBER 2014 ❚ HR PROFESSIONAL
