A story in the Toronto Star today describes a decision of the Ontario Human Rights Tribunal involving a complaint of outrageous racial slurs at a trucking company. The actual decision hasn’t been posted yet, so I can’t link to it. The Tribunal found that Lynn Tomkins, the owner of a company called Lynx Trucking, called employees “pakis” and ‘niggers’, among other disgusting slurs. Tomkins admitted he is a prick of an employer who yells and swears at his employees, but that he never made racial slurs. Sounds like a charming employer? The Tribunal didn’t believe him, and ruled he violated the Human Rights Code.
We can assume the sections he was found to have breached is 5(1) [which bans discrimination in employment on the basis of race, ethnicity, and skin colour, among other grounds] and 5(2) [which bans harassment at work on the same grounds]. Note the remedies ordered: $25,000 in damages to be paid to the complainant, $6,750 for lost wages owing to the employer’s dismissal of the complainant, which was also found to be discriminatory; and an order for the employer to create an anti-harassment policy and for Tomkins personally to take anti-harassment training. No court would order those last two things. The broad power for the Tribunal to make orders like this flows from Section 45.2, which reads:
45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
Note that the employee here succeeded in her human rights complaint because the harassment and discrimination was related to her race/ethnicity/skin colour. But notice the employer’s defence in the hearing: he said I often yell and swear at my employees, but when I do so, I don’t use racial slurs. Is that a good defence? What if, instead of using racial slurs, the employer had been calling employees, say, “fatso”, “ugly”, “stupid”, or “losers”? Would that have been ok, or would those comments still violate the human rights code?
If not, would they have a breach of contract claim? If there is a no harassment term in the contract, then maybe. What if there is nothing like that though? Is there an implied term prohibiting this sort of harassment at work? How about the “implied duty to treat employee decently”? See here. Is there a common law tort that deals with harassment in employment?
For employment law students, you need to think about how the law deals with these issues by asking these sorts of questions and then trying to sort out the answers.
