Author: Daniel A. Lublin
Employees love to complain about their jobs. They often perceive mistreatment at work as an invitation to a lawsuit or a human rights complaint. This should come as no surprise since Canadian workplace laws are notoriously employee-friendly and provincial human rights tribunals often apply these laws in the complainant’s favour. Many companies feel these specialized tribunals represent yet another reason to avoid doing business in Canada.
However, not every grievance of unfairness at work leads to a successful human rights complaint. One Ontario employee just learned this lesson the hard way.
Donna Race was, not surprisingly, one the only females employed at an Oshawa auto assembly line. In 2006, she complained that her co-workers played the radio too loud and that the excessive noise affected her hearing. In response, she received threats from her co-workers and one of them called her a “bitch”.
Unsatisfied with the way her employer handled the situation, Race complained to the Ontario Human Rights Tribunal, arguing she had been harassed because of her gender.
However, before presenting its case, Race’s employer contested the Tribunal’s jurisdiction to entertain the complaint, arguing it was not related to Race’s gender and that her hearing loss was only temporary. Instead, it argued that Race’s complaint was about the volume of a radio, something which a human rights tribunal has no authority to decide.
Recently, the Tribunal agreed. Race failed to show that she was treated differently at work because of her gender or a disability. Although the comment her co-worker made was offside, it did not amount to discrimination.
The decision reiterates some important lessons for employees:
- Do not bring a human rights complaint where there is only a marginal connection to discrimination. As a unionized employee, it should have been open to Race to file a grievance with her union.
- An apology may be sufficient to vitiate misconduct. Here, the employee that called Race a “bitch” recognized the comment was inappropriate and apologized. In the Tribunal’s view, this supported the dismissal of the complaint.
- Human rights tribunals are not catchalls for general claims of unfairness or mistreatment at work. Seek specialized advice before taking legal action.