Ed Canning: Discrimination inflates termination costs
Michael immigrated from Ecuador to Canada after high school and obtained his master's degree in food safety from McGill University. At the age of 27 he was hired to be the plant manager that resold liquid sweeteners such as molasses after repackaging them.
The first six weeks went swimmingly. But when he suggested a simpler way to automate the plant, things went sour. The boss said it was impossible for Michael to know all he said he knew as he was too young and "they do not teach molasses in Ecuador."
The boss later told him he wanted him to come into the plant at 7:30 every morning even though his shift didn't start until 8 a.m. Michael refused. The boss called him "a lazy Ecuadoran who did not like to wake up early." This turned out to be a repeated criticism.
One day when the temporary employees had been too busy to clean the boss' toilet, he told Michael he would have to do it even though Michael was the plant manager and there were lots of other employees who could have been asked. When Michael refused to recycle molasses and resell it as a result of sanitary concerns, the boss told him he was going to fire him, make his life miserable and make sure nobody else in the industry hired him. Soon after, Michael received two written disciplinary warnings in two days for petty incidents.
Michael made some calls and learned he could file a complaint with the Ontario Human Rights Tribunal, but he decided to write a letter to the boss first to see if he could get things back on track. It was a short letter indicating that he wanted to keep working there but he had a right to be free from discrimination on the basis of his race, place of origin, age and citizenship. He asked for it to stop. A few days later, he was told in front of a number of people that he was not invited to the company Christmas party because of the letter he wrote. Two weeks later, he was late for work for the first time due to a snow storm. When he arrived a half-hour late, the boss asked him what happened and Michael explained that where he used to live in Montreal the snow was shovelled and he did not realize he would have to do it before he could leave for work from his new residence. The boss said "you Ecuadorans are so full of s--t, no one cleans the snow in Montreal." Later that day when the boss had a disagreement with another Ecuadoran manager over a heat exchanger, the boss said "f--k off and if you don't like it the door is there and North America awaits, or you can go back to Ecuador." A few days after that Michael was fired for having left a holding tank lid open even though it was empty and cleaned and no product was compromised. His employment lasted five months.
When the boss gave evidence he said Michael was being difficult toward the end of the relationship and it was not going to stop. He claimed at one point during his testimony that he had a good memory, but when he was asked very specific questions that could have compromised his case he suddenly could not recall. Ultimately, the adjudicator found that Michael was the victim of discrimination and his termination was retaliation for having stood up for his right to be free from discrimination. Michael was awarded $20,000 to compensate him for injury to his dignity, feelings and self-respect.
It took Michael a month to find a job and he was awarded that month's lost wages and the difference between his old job and his new job for a further five months.
It is clear the adjudicator found Michael was honest in his evidence except when he said he shied away from confrontation. He had no problem getting into it with the boss. That alone might have led to his eventual termination. If that were all that happened he would have received a small severance package based on five months of service and nothing more. Perhaps a month's pay.
Employers should learn, however, from Michael's boss. If you terminate an employee, discriminatory comments will be relied upon and the cost of the termination will increase exponentially.
Ed Canning practises employment and human rights law with Ross & McBride LLP, in Hamilton, representing both employers and employees. Email him at ecanning@rossmcbride.com.For more employment law information: hamiltonemploymentlaw.com.