Discrimination complaint dismissed by human rights tribunal: Ontario employment lawyer on HR Reporter

Interview Summary

The Ontario Human Rights Tribunal recently dismissed a complaint brought forth by an employee working at Tim Hortons, employed by the Humber River Hospital Volunteer Association. After a termination of employment, the employee alleged many instances of harassment from co-workers and and reprisal from management. The complaint was dismissed by the tribunal as an adequate investigation by HRHVA appeared to have been conducted.

Jeremy Herman, a Toronto employment lawyer and Associate at Samfiru Tumarkin LLP joined the HR Reporter’s Jeffrey Smith to discuss the dismissal and the difficulties of harassment in the workplace.

Interview Notes

• Proof of discrimination: Herman commented that an employee’s ability to prove discrimination and harassment is critical. “The employee has to have actual evidence of discrimination and not just a very strong suspicion,” said Herman. “It’s a difficult thing, because the adjudicator, or a judge in a civil dispute, might believe the worker, but at the end of the day, it really comes down to evidence and that was missing here.”
• The prospect of success in filing a complaint: There are other options for employees who feel they have been treated unfairly, Herman explained. “We deal with human rights issues fairly often, and when people feel like they were treated differently and faced adverse treatment, that could be discrimination,” Herman stated. “But what the layperson is often missing is that it has to be grounded in one of the enumerated grounds under the code.”
• Bad faith termination: Herman went on to explain that an employee can pursue damages as a result of a bad faith termination. “If a termination happened in bad faith, there are damages for that, there are mental distress damages, there are ways of obtaining damages,” he said. “But it’s the sole jurisdiction of the [Human Rights] Tribunal to determine whether there was discrimination under the code – and in this case, there wasn’t.”
• Conducting an adequate investigation: Herman reiterated the importance of conducting an adequate workplace investigation in the event of harassment complaints. “If you want to do it right in the event of any complaints, you should investigate as thoroughly as possible, even if it’s post-termination. If the complaints are happening during employment, there is a higher standard – we don’t know what the tribunal would have decided had these allegations been made during employment, but I posit that even a more thorough investigation would be required of the employer.”

Related Resources

For further insights and discussions related to workplace harassment, explore the following resource:

• Workplace investigations