Employees have a right to be treated fairly in the workplace without discrimination or harassment. Employers can find themselves in hot water if they violate an employee’s human rights. However, not every assertion of a human rights violation has merit. Sometimes, there may be a non-discriminatory explanation for the adverse treatment of an employee. 

This article explores this issue with reference to a recent decision of the Human Rights Tribunal of Ontario (the “HRTO”). In this case, a self-represented employee who was terminated without cause claimed that she was discriminated against, and harassed, on several grounds. The employer responded to the claims and stated that the termination was due to the employee’s failure to fulfill the requirements in her role.

Which rights are protected by law?

Most employees in Ontario have rights provided by the Human Rights Code (the “Code”). Employees of federally regulated workplaces are covered by similar federal legislation. 

Under the Code, every person has a right to equal treatment with respect to employment without discrimination based on protected grounds, including race, place of origin, sex, marital status, age and disability.Employees also have a right to freedom from harassment in the workplace on the same listed grounds. The Code also contains a specific prohibition on sexual harassment.

Every individual has a right to enforce their rights under the Code without reprisal or threat of reprisal for doing so. This protects employees that claim their rights have been infringed from adverse treatment arising from raising a complaint.

What are the options for affected employees?

Employees who believe that their rights have been violated have a number of options for seeking redress. Two commonly pursued options are bringing a claim through the court system and filing a complaint with an administrative body. 

For the latter option, Ontario employees can submit their complaint to the HRTO. Federally regulated employees can file a complaint with the Canadian Human Rights Commission. The Commission may refer the matter to the Canadian Human Rights Tribunal for a decision. 

Applicants bear the onus of proof in establishing that one of their rights have been violated by their employer

Under the Code, the applicant employee bears the onus of proving that the employer violated one of their rights. To establish discrimination, the employee needs to show that they were treated adversely and that a protected characteristic was a factor contributing to this treatment.

The employer may be able to rebut the claim if it can provide a credible and rational explanation or raise a statutory defence.

Employee had interpersonal conflicts with other employees, was subject to a performance improvement plan

In the case of Yan v 30 Forensic Engineering Inc., the applicant employee was hired as a senior associate forensic engineer by the defendant employer in April 2018. The employee was born in China and is in her late 40s. 

The applicant’s employment agreement outlined the duties she would be responsible for in her role, including mentoring and supervising one or two associates. She was in a small team of five people but soon after starting the job she had interpersonal conflicts with three of the other employees.

Relations with her employer deteriorated after the applicant failed to submit a proposal to a potential client. The other team members also believed that she was failing to mentor them. These issues caused the defendant to provide the employee with a performance improvement plan, under which there was to be a meeting one month later to discuss progress. According to the improvement plan, the company reserved the right to proceed with disciplinary action if she failed to improve. 

Employee was later terminated without cause

The difficulties continued when the employer distributed customized T-shirts which featured the new chairman of the board’s face cropped onto a photo of Chairman Mao.

Following the issuing of the performance improvement plan, the applicant decided to file an internal complaint alleging discrimination on the basis of race, age, gender and country of origin. An investigation concluded that the incidents did not constitute harassment or discrimination. 

The employee further failed to provide assistance on a file and did not attend an employee appreciation event, claiming that her absence was due to a shoulder injury, food allergy and post-traumatic stress disorder (PTSD). Ultimately, the employer decided to terminate the employee. 

Employee failed to prove her disability discrimination claim

The employee alleged discrimination on the basis of disability due to her termination following the disclosure that she had PTSD. The HRTO adjudicator dismissed this claim, finding no medical evidence to support the employee’s claim that she had the condition during her employment.

Employer had a credible non-discriminatory explanation for the treatment 

The employee also argued that she was subject to discrimination and harassment on the basis of her race, place of origin, sex and age. This claim centred around the T-shirt distribution and associated emails, in which management employees pondered whether terminating the employee would result in the T-shirt “ending up on the front page of the Globe and Mail” and whether the communication issues with the applicant were the result of “cultural blindness on both sides”. The employee argued that the performance plan and termination were designed to cover up the employer’s mistakes with the T-shirt and emails.

While the adjudicator found the T-shirt and emails showed “insensitivity towards Chinese people”, she accepted the employer’s explanation that the performance plan and termination resulted from the applicant’s inability to fulfill her job requirements, which required her to be a team leader and work collaboratively with other employees.

Due to the evidence of ongoing performance issues, the adjudicator decided that the employer had a credible non-discriminatory explanation for its conduct. The HRTO dismissed the employee’s claim. 

Contact Grosman Gale Fletcher Hopkins LLP in Toronto for Advice on Human Rights and Harassment Claims 

Unrepresented employees may assert human rights violations that have no merit. To increase your chances of being able to prove a violation, it is important to obtain advice from an experienced employment lawyer. Grosman Gale Fletcher Hopkins LLP provides advice to employees seeking to pursue a human rights claim. Our firm also defends employers from human rights claims before administrative tribunals and in the courtroom. Our trusted employment lawyers give you an objective and strategic assessment of the optimal way to defend your organization’s legal position. 

The team at Grosman Gale Fletcher Hopkins LLP have a combination of knowledge and experience to assist you with your workplace issue. Contact us online or at 416.364.9599 to schedule a confidential consultation.


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