Canadian Employment Law Today

CANADIAN EMPLOYMENT LAW TODAY Published by Canadian HR Reporter, a Thomson Reuters business 2014 5 fore tasted the soup, breaking his fast. Additionally, the restaurant institut- ed an English-only rule in the kitchen, despite Islam's limited ability with the language and Hossain's and Malik's assistance by clarifying the employer's instructions in Bengali. At times, when the employees were communicating in Bengali in the kitchen, the owner would mock them by saying "blah blah." On various occasions, the three em- ployees also heard the owners indicat- ing they wanted white staff and they also wanted "to clean the shit from the kitchen" by bringing in new staff, and that the owners would close down the restaurant for a period of time to accom- plish this. In September 2010, Hossain was given time off for the evening of Eid al-Fitr. However, on the evening of the religious holiday, the owner called him and indi- cated that he would have to come into work and if he did not come in he would be terminated. As a result, Hossain was required to cancel a party he had ar- ranged at his home with 15 to 20 people. Employees complained about treatment As a result of the above actions by the owners, the employees wrote and deliv- ered to the restaurant a letter of com- plaint in September 2010, as well as a further letter of complaint in November in response to changes that were being made at the workplace which affected the their work. Specifi cally, the changes resulted in the following: • Malik was required to work 60 hours a week • Hossain's hours were reduced by one shift per week as well as the duties he was performing • Islam's shifts each week were reduced from fi ve to four and the number of hours per week reduced from 35 hours to 25 hours • New employees were hired, all of whom are white and Canadian The restaurant did nothing in re- sponse to the employees' letters, other than rescind the proposed work sched- ule change. Given the above conduct engaged in by Le Papillon's owners, the tribunal found the restaurant had discriminated against the employees on numerous grounds. The tribunal ordered damages for each of them as compensation for vi- olation of their inherent right to be free from discrimination, injury to their dig- nity, feelings and self-respect, including the continuing stress caused by failure to investigate their complaints of dis- crimination and compensation for loss of income. Specifi cally, the employees received the following: • Malik received $18,632 for loss of in- come and $37,000 to compensate for violation of his inherent right to be free from discrimination, injury to his dig- nity, feelings and self-respect, including the continuing stress caused by failure to investigate his complaints of discrimi- nation. • Hossain was awarded $7,920 for loss of income and $22,000 to compensate for violation of his inherent right to be free from discrimination, injury to his dignity, feelings and self-respect, in- cluding the continuing stress caused by failure to investigate his complaints of discrimination. • Islam was awarded $1,040 for loss of income and $12,000 to compensate for violation of his inherent right to be free from discrimination, injury to his dig- nity, feelings and self-respect, including the continuing stress caused by failure to investigate his complaints of discrimi- nation. Lessons for employers While it is well known by employ- ers that they are to ensure that human rights legislation is to be complied with at all times in the workplace, this deci- sion demonstrates the large monetary amounts an employer may be faced with should a breach of the legislation be found to have occurred. Employers must accommodate an em- ployee's human rights at the workplace short of undue hardship, and be able to demonstrate that such accommoda- tion was provided or that undue hard- ship would be experienced should the employer provide the necessary accom- modation. Additionally, it is not only a breach of the code which may result in an award of damages against an employer. As this demonstrates, employers must also ensure they properly and thorough- ly investigate any claims of an alleged breach of the code at the workplace, failing which additional damages may be awarded. For more information see: • Islam v. Big Inc., 2013 HRTO 2009 (Ont. Human Rights Trib.). CASE IN POINT: HUMAN RIGHTS Continued from page 4 Employee given time off for holiday, then called in About the Author Ronald S. Minken Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique located in Markham, Ontario. He can be reached at www.MinkenEmploymentLawyers.ca. Ron gratefully acknowledges Sara Kauder and Kyle Burgis for their assistance in prepara- tion of this article. Following the employees' letter of complaint, two workers' hours were reduced and one was required to work 60 hours per week. Photo: Snvv/shutterstock.com

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