2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
Strong Message Sent to Employer Paying Less than Minimum Wage to Developmentally Disabled Employees
The Ontario Human Rights Tribunal (“Tribunal”) has awarded a developmentally disabled employee over $180,000 in damages after her employment was terminated.
In Garrie v. Janus Joan Inc., 2014 HRTO 272, Terri-Lynn Garrie (“Employee”) filed a human rights complaint in which she alleged that for over 10 years, her former employer Janus Joan Inc. (“Employer”) paid her, and other developmentally disabled employees, a total of $1.00-$1.25 per hour for work that was substantially similar to that of their co-workers who did not have developmental disabilities. She also alleged that she was terminated as a result of her disability.
The Employee began working for the Employer in the late 1990’s and was terminated from her employment in 2009.
The Employer argued that it had entered into formal arrangements with certain agencies who provide support for individuals with developmental disabilities. The Employer contended that the intent of the formal arrangements was to provide “work activity and training” to persons with developmental disabilities. These positions were said to be “volunteer trainee” placements. The Employer alleged the trainees had no responsibility or accountability; they were allowed to work, play games or go bowling if they chose to do so.
The Employee’s mother, who also worked for the Employer, testified that the developmentally disabled employees did all the same tasks as the other general labourers except for some tasks that required fine skills such as labelling wine bottles. She stated the Employee worked a 40-hour work week.
The Tribunal found that the Employer did pay the Employee far less than the required minimum wage. The Tribunal also accepted the Employee’s mother’s evidence that the Employee performed similar duties to other individuals who received minimum wage or more. The Tribunal took issue with the Employer’s categorization of the disabled employees as “trainees” as the Employee had been working for more than 10 years. The Tribunal relied on evidence that the Employer disciplined a disabled employee to contradict the Employer’s allegation that the disabled employees had no accountability or responsibilities.
The Tribunal then assessed whether the Employer’s practice was discriminatory, finding that it was. There was a distinction based on disability. The practice was a blatant breach of the Employment Standards Act of Ontario, the practice was:
by its very nature, an affront to their dignity and a disadvantage. It is no coincidence, in my view, that workers who receive less than the statutory minimum wage tend to be members of disadvantaged groups in society, and often have Code ground-related personal characteristics, such as a disability or a lack of immigration status.
The Employer was ordered to pay the Employee over $180,000, including $142,124 for lost income reflecting the difference between minimum wage and the amount she was actually paid while employed, a further $19,613.87 in lost income from the date of her dismissal until she started a new job and $25,000 for violating her right to be free from discrimination and for injury to dignity, feelings and self-respect. The Tribunal also issued a cease and desist order relating to the Employer’s wage practice and ordered the Employer to receive training by an expert in disability-related discrimination within 60 days.
Lastly, the Tribunal ordered a copy of the decision be delivered to the Ontario Human Rights Commission with a recommendation to determine how wide-spread similar practices were in Ontario and to make recommendations to government on how to rectify the situation, if appropriate.
What This Means for Employers
Although the Tribunal alluded to the fact that this type of pay practice may be widespread in Ontario, there was no supporting evidence. One would hope the days of paying employees less than minimum wage due to disability or any other prohibited ground are long gone. As such, this decision will have little effect on the vast majority of employers throughout Canada who comply with minimum wage legislation regardless of the status of the employee. However, for any employer who engages in this type of practice or intends to in the future, this decision serves as a very strong deterrent.