It may be difficult to reconcile the idea that an employer may still be liable for human rights-related damages even where an adjudicator concludes there was no discrimination in the workplace. However, that is what happened in Morgan v. Herman Miller Canada Inc, 2013 HRTO 650.
The employee, Mr. Morgan, alleged that he was discriminated against by his employer, Herman Miller Canada Inc. (Herman Miller) because of colour and reprisal. Mr. Morgan worked as an Installation Scheduler. During the relevant time period, Herman Miller was struggling financially, and all employees were required to do extra tasks. However, Mr. Morgan felt that he was being treated like a "black slave." Further, when he was disciplined for revealing confidential information to a supplier, Mr. Morgan similarly felt targeted because of his race, since he felt that the discipline was disproportionate to the seriousness of the offense. Ultimately, he brought these beliefs that he was discriminated on the basis of race to the attention of management at Herman Miller, although in an informal manner, and was terminated.
The Human Rights Tribunal of Ontario found that while there was no evidence Mr. Morgan was discriminated against by Herman Miller, it concluded that Mr. Morgan's termination constituted a "reprisal" for having raised concerns of discrimination. Not only did Herman Miller disregard Mr. Morgan's concerns and fail to investigate his complaint, but it also terminated him in part because he raised these concerns and mentioned that he would take legal action. As a result, Herman Miller was ordered to pay damages encompassing lost wages, and CA$15,000 as compensation for injury to Mr. Morgan's dignity, feelings and self-respect.
Similarly, in Singh v. Senate of Canada, 2022 FC 840, the failure of the employer to properly investigate allegations of discrimination also proved fatal, despite the fact that the adjudicator determined that there was no discrimination in the workplace (a conclusion that was not objected to on appeal). Mr. Singh was terminated shortly after raising informal concerns that he was being discriminated against with senior personnel in the Senate. While a cursory investigation was completed, the Federal Court held that by failing to provide Mr. Singh an opportunity to be heard and by reaching conclusions before the "complete" complaint was before it, the Senate failed to "respect the basic principles of fairness." This was one of the grounds that led the Federal Court to grant the judicial review requested by Mr. Singh after his grievance was previously dismissed. While the parties came to their own settlement, Mr. Singh was ordered to be reinstated in 2023 after being terminated without cause in 2015.
Takeaway
Employers have a positive duty to investigate both informal and formal allegations of discrimination. This investigation can take many forms, but especially where either the complainant or respondent may face significant consequences at the conclusion of the investigation, such as termination, the employer must ensure that each party has an opportunity to share their evidence.
Dentons' Workplace Investigations Group can provide guidance and advice during this process.
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