OK, I’ve only scanned this decision quickly for now, so please read it yourself and see if I’m missing something obvious.
This is a decision the CHRR Online people made me aware of that was just issued by the Ontario Human Rights Tribunal. It is called Garrie v. Janus (this is an unformatted pdf version. The Tribunal presumably will add the link to their decision database soon]. It involves a disabled worker who, firstly, is paid between $1 and $1.25 per hour over a period of years, and then secondly, is dismissed in October 2009 due to her disability. Other non-disabled workers were paid at least the minimum wage, as required by the Employment Standards Act. The worker files a human rights complaint alleging discrimination on the basis of disability for the wage discrimination and the dismissal (among other claims).
The Tribunal dismisses the complaint about wage discrimination on the basis of timeliness. It finds that the employer’s practice of paying disabled workers only a buck an hour for a period of years was really only one act that continued for years and years:
In my view, the respondents’ ongoing practice of paying the applicant less than employees who did not have developmental disabilities was not a succession or repetition of separate acts of alleged discrimination of the same character. Rather, it was one act of alleged discrimination in the late 1990s, which had continuing effects until the applicant’s employment ended in October 2009. As such, the applicant’s allegation is approximately 10 years out of time.
Since section 34 requires complaints to be filed within a year of the offense (unless it is a continuing breach), her complaint about illegal pay is dismissed because it is nearly a decade since the first time the employer started discriminated against the applicant. Under this approach, an employer is safe to discriminate in wages on the basis of disability, as long as the disabled person doesn’t know to file a complaint within the first year. Make sense to you?
Well, hopefully she filed an Employment Standards Act complaint in time. Or a wrongful dismissal lawsuit, under which she would have been entitled to both lost wages at the minimum wage and reasonable notice based on at least the minimum wage (and probably Honda damages for bad faith in the manner of dismissal).
The Tribunal then finds that the dismissal was a violation of the Code, and the complaint was filed within a year of the dismissal. The Tribunal then turns to remedy. It finds that $15,000 is appropriate for injury to dignity, feelings, and self-respect. It also orders human rights training for the company’s officials.
Now, here is where the decision gets particularly controversial. The Tribunal turns to the issue of lost income. The Tribunal begins as follows:
The applicant seeks an award of monetary compensation for lost income. The purpose of compensation for loss of income is to restore the applicant as far as is reasonably possible to the position that the applicant would have been in had the discriminatory acts not occurred.
So far, so good. Not what position would she have been in but for her employer’s discriminatory treatment? The Tribunal calculates the loss of income by looking at how long the claimant was out of work after her illegal dismissal. She got a new job after 53 weeks, which the Tribunal thinks is reasonable given that she attempted to mitigate and given that it is expected that a person with developmental disabilities will have a more difficult time finding alternative employment. So all that is left to do is calculate the income she should have received from the discriminating employer during that 53 week period if the employer had not discriminated against her, right?
So what is the income she would have received if there was no discrimination during that 53 week period? Here is the Tribunal’s answer:
The applicant provided uncontradicted evidence that she lost $50 per week from October 26, 2009 (the date the organization respondent terminated her employment) to November 6, 2010 (the date that she started a new job at a Walmart store). As such, I find that her lost income was $2,678.50 ($50/week x 53.57 weeks).
Say what? Her lost wages are calculated based on a wage rate of $1.25 per hour for a 40 hour week? Correct me if I’m wrong about this, but isn’t that wage rate a gross violation of the minimum wage requirement in the ESA, and also discrimination, since non-disabled workers were paid minimum wage? If so, the Tribunal is affirming an illegal pay scheme.
To the commentators (who I thank for taking the time to comment on this interesting decision) who argue that the Tribunal must ignore the ESA because it has no jurisdiction over it, I have some doubts about that. The Tribunal has power to determine “all questions of law that arise” in a proceeding before it (section 39), and it would seem an odd interpretation of that power to suggest the Tribunal must ignore the law of the province prohibiting employers from paying disabled workers $1 per hour. It would mean, for instance, that the employee would need to first file an ESA complaint to get a ruling form the OLRB saying minimum wage is required, and only afterwards file a human rights complaint seeking a human rights remedy (lost wages for the 53 weeks after she was fired in contravention of the Code, reinstatement). Is that a practical approach? Any human rights experts what to chime in on that question?
But it really doesn’t matter in this case if the Tribunal can interpret the ESA. Even if it is true that the Tribunal can’t take notice of the minimum wage, then just use a human rights argument: at the date she was dismissed, I think the evidence indicates that the employer was paying non-disabled workers doing the same job at least the minimum wage and her $1.25 per hour. Surely that is discrimination on the basis of disability and a violation of the Code. The Tribunal could have calculated the lost income based on minimum wage on that basis, couldn’t it?
Is there a law/policy in Ontario I’m unaware of that permits employers to pay disabled workers $1.25 per hour? There is in other provinces, as I’ve noted before, so that is possible (though if so, I’d have thought the Tribunal would mention that a rate of $1.25 per hour for a disabled worker is lawful only because of that law). If there is no special exemption to the minimum wage for disabled workers, then this decision strikes me as absurd. Am I wrong?