The decision in H.T. v ES Holdings Inc. o/a Country Herbs (“Country Herbs”) 2015 HRTO 1067 (CanLII) (“Country Herbs”) serves as a reminder to employers of the significant liability that they face when a claim of discrimination is made out.

H.T. and J.T. were hired when they were 16 and 14 respectively. The undisputed evidence was that their mother, S.T., had advised the employer early on in H.T.’s employment that she could not work later than 9:30 or 10:00 p.m., to which the employer agreed. H.T. notified the employer twice that she was a Mennonite, and that she was unable to work on Himmilfaurt, which was a Mennonite religious holiday. H.T. was told that the attendance policy required that she come in at midnight on the holiday to complete her work if she did not work her scheduled daytime shift. H.T. declined the midnight shift, on the basis that she had already advised the employer that she could not work past 10:00 p.m. J.T. was not scheduled to work that day, so J.T. had no issue. While the applicants were at church, the employer called S.T. and, upon being told again that H.T. would not be working that day or at midnight, terminated both S.T.’s and J.T.’s employment.

Ultimately, the Adjudicator found 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”.

In terms of H.T., the Adjudicator found that the policy was discriminatory and there was a prima facie case of adverse treatment. Although the Adjudicator was satisfied that that the employer had adopted the attendance policy for a purpose rationally connected to the performance of the job and in an honest and good faith belief that it was necessary to the fulfilment of the legitimate work-related purpose, ultimately she held that the employer had not considered the procedural duty to accommodate; based on the evidence, the employer had not engaged in a discussion of how to accommodate H.T. after she twice raised the issue of not working on the holiday. Moreover, “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 employer that H.T. would not work past 10 p.m. because of her age, this was not a reasonable attempt to accommodate her”.

In contrast with an allegation of discrimination, a reprisal claim requires the applicant demonstrate that the respondent purposefully punished or retaliated against the applicant. The Adjudicator concluded that the reprisal complaint was made out, because the employer discussed with the applicants that they could be fired for not working on the holiday and gave evidence that they were terminated so that others would not disregard the attendance policy.

The HRTO awarded the following:

• that the employer pay lost wages of one month to H.T. and five months to J.T., who had both mitigated by seeking work after their termination;
• that the respondents (both the employer and the directing minds of the employer) pay damages for injury to dignity, feelings, and self-respect, in the case of H.T. the sum of $10,000, and J.T. the sum of $7,500;
• that the respondents implement an internal Human Rights policy, specifically including a prohibition on discrimination on the bases of creed or association;
• that the respondents undergo the Ontario Human Rights Commission’s online training “Human Rights 101”, and provide written confirmation to the applicants; and
• that the employer post Code cards in central locations throughout their workplace, including any place where staff gathers for breaks or meetings, to encourage future Code compliance.

This decision underscores the importance of compliance with the Code, as well as the gravity of discrimination on the above-noted prohibited grounds. Employers are well-advised to ensure they implement policies that accommodate their employees to the point of undue hardship, from both a substantive and procedural standpoint, or risk significant monetary penalties and the involvement of the HRTO in their workplace.

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