Human Rights Office

Queen's University
Search Type
Human Rights Office
Human Rights Office

H.T. and J.T. v. ES Holdings Inc. o/a Country Herbs, 2015 HRTO 1067 (CanLII)

Summary:

In this case J.T. and H.T. worked full-time for the respondent. The respondent is a herb grower ad importer. J.T. and H.T.’s bosses were Mr. Esmile and Ms. Singh. The applicants are Christian Mennonites who celebrate a religious holiday called Himmilfaurt. Prior to the holiday (approx. three weeks) H.T. accompanied by J.T. and told Ms. Singh that they were not able to work on the holiday. Approximately a week prior to the holiday the applicants again informed Ms. Singh that they would be unable to work on the holiday.  Important to note is the fact that only H.T. was scheduled to work on the holiday (May 29, 2014). Mr. Esmile and Ms. Singh told H.T. that she would either have to come in on the holiday during the day or at midnight. Two days before the holiday, H.T. texted Mr. Esmile informing him he would not be into work on the holiday and that her parents wouldn’t be dropping her off at midnight.  When neither, H.T. or J.T. showed up to work on May 29, 2014 the respondent fired them.  The respondent claimed that H.T. and J.T. were fired in accordance with the respondent’s attendance policy. In this case the respondents also tried to showcase why providing the holiday off to employees would have caused undue hardship for the company. Although oral evidence was provided regarding the hardship the company suffered, they failed to provide documentary evidence to support their case (monthly statements, balance sheets or even emails from customers who complained). In this case it was ultimately found that the respondent discriminated against J.T. and H.T on the basis of creed. In addition it was found that H.T. was subject to reprisal from the respondent for not attending work on the holiday.

Question(s) to be Determined:

1.    Were the applicants, J.T. and H.T. discriminated against with respect to employment on the basis of creed and association contrary to the Human Right Code?

2.    Were the applicants, J.T. and H.T. subject to reprisal from the respondent for not attending work on the holiday?

Findings:

1.    Were the applicants, J.T. and H.T. discriminated against with respect to employment on the basis of creed and association contrary to the Human Right Code?

YES

2.    Were the applicants, J.T. and H.T. subject to reprisal from the respondent for not attending work on the holiday?

YES (but only H.T.)

Reasoning:

1.    In this case it was determined that the applicants were discriminated against with respect to employment  on the basis of creed (H.T.) and association (J.T.) contrary to the Code. It was stated, “I find that the expectation that H.T. would work on the holiday in accordance with the attendance policy or be fired was discriminatory on the basis of her creed, because the applicant’s creed prevented her from working on the holiday. The respondent argues H.T. had the option of working at midnight, but I will discuss below, why this was not a reasonable option. In my view, because the policy meant H.T. had to work on the holiday or risk being fired (and was in fact fired from her position with the respondent), she has established a prima facie case of adverse treatment” (para 56).

Further commenting on the alternative offered to H.T. it was decided that coming in to work at midnight was not a reasonable attempt at accommodation. It was stated,
“with respect to the substantive duty to accommodate, the only alternative offered was for H.T. to work at midnight. Given her particular circumstances and the agreement of the respondent with S.T. that H.T. would not work past 10 p.m. because of her age, this was not a reasonable attempt to accommodate her. She had concerns about working late at night in a rural setting. In addition, she did not have a means of transportation to get to work at midnight. While the applicants were clear that they were not claiming discrimination on the basis of age, H.T.’s age certainly is an appropriate factor to consider when assessing the accommodation offered. In my view, the alternative offered, particularly in light of the uncontroverted evidence that Ms. Singh agreed with S.T. that H.T. would not work past 10 p.m., was not a reasonable alternative, and no other options were available to H.T. Whether or not she was expected to work the following day shift, the expectation that a 16 year old would work at midnight was an unreasonable one” (para 62).

Because J.T. was found not to have been scheduled to work on the holiday, it was decided that J.T. was fired because of his association with his sister who had asserted her right not to work on the holiday, and with whom he shares the same religion.

2.    In this case it was determined that only H.T. was subject to reprisal from her employer. Because J.T. was not scheduled to work on the holiday, he did not assert his right not to work on his holiday and his firing was not a reprisal for doing so.

In the case of H.T. “it is clear that the respondent intended to punish her for asserting her Code right not to work on the holiday given that she was terminated on the day of the holiday” (para 73).
“My finding that the respondent reprised against H.T. is supported by Ms. Singh’s evidence that she discussed with the employees, including the applicants, that if they did not come in on the holiday, they could be fired. In addition, the respondent’s evidence was that the applicants were terminated because if they were not, others would feel they did not have to follow the attendance policy in the future. It is clear that H.T.’s termination was a reprisal” (para 74).

Remedy:

In this case the remedies ordered for H.T. and J.T. were monetarily different. The different amount reflect the finding of reprisal against only H.T. and the different lengths of time that H.T. and J.T. were unemployed after being terminated from the respondent’s business. Both H.T. and J.T. were awarded monetary compensation for lost wages and injury to dignity feelings and self-respectIn addition to these monetary awards, the respondent was ordered to undertake “Human Rights 101” training and post Code cards in central locations throughout the respondent’s place of business.

The respondent shall pay to H.T.:
a. $10,000.00 for injury to dignity, feelings and self-respect and reprisal;
b. the sum of $1927.00 for wage loss from May 29 to June 29, 2014;
c. pre-judgment interest of 1.3% on the amounts awarded for injury to dignity, feelings and self-respect from June 14, 2014 to the date of this Decision;
d. pre-judgment interest of 1.3% on the amounts awarded for wage loss from June 14, 2014 to the date of this Decision; and,

e. Pay to the applicant post-judgment interest of 2% on the amounts awarded for injury to dignity, feelings and self-respect and wage loss, commencing 30 days after the date of this Decision (para 102).

The respondent shall pay to J.T.:
a. $7,500.00 for injury to dignity, feelings and self-respect;
b. the sum of $6690.00 for wage loss from May 29 to October 30, 2014;
c. pre-judgment interest of 1.3% on the amounts awarded for injury to dignity, feelings and self-respect from August 14, 2014 to the date of this Decision;
d. pre-judgment interest of 1.3% on the amounts awarded for wage loss from August 14, 2014 to the date of this Decision; and,
e. post-judgment interest of 2% on the amounts awarded for injury to dignity, feelings and self-respect and wage loss, commencing 30 days after the date of this Decision (para 103).

The respondent shall:
a. Ensure that Ms. Singh and Mr. Esmile take the Ontario Human Rights Commission’s on-line training “Human Rights 101” within 60 days of this Decision, and provide the applicant with written confirmation that they have done so upon completion of the course; and,
b. Within 30 days of the date of this Decision post Code cards in central locations throughout the respondent’s place of business, particularly in the lobby and in areas where the staff takes breaks or has meetings (para 104).