August 18, 2014
A female sales professional was offended by her company’s business development initiative organizing a “Men’s Day” for its clients at a local ski resort. The employee, the only female sales professional with the company, was not invited. The employee brought her concerns to the attention of her supervisor and the president. A few weeks thereafter she was terminated without cause. The employee commenced an application with the Ontario Human Rights Tribunal alleging that her termination constituted a reprisal for reporting her concerns of alleged discrimination. The company defended the application by denying that the complaint was in any way connected with the decision to terminate her employment. It alleged the termination was performance related.
The Tribunal concluded that there was no question that the applicant was treated differently because of her sex as she was not invited to the “Men’s Day” client event. It went on to conclude that there was an adverse impact, namely, the lost opportunity to deepen relationships with her customers and increase sales given that the purpose of the event was to support the sales professionals in their job. Therefore, the exclusion of the female employee from Men’s Day constituted discrimination. The Tribunal considered a volume of evidence concerning the employee’s performance in her role. It concluded that it was more likely than not that her termination was related to her complaints about Men’s Day. As such, her termination constituted a reprisal.
The company suggested that the Employee’s damages for lost income should be limited to those prescribed by her contract, which would have amounted to four weeks. The Tribunal concluded otherwise. Specifically, the Tribunal concluded that because the Human Rights Code provides the authority for it to award damages for lost earnings and because it is not possible to contract out of the Code,the contractual limit did not apply.
The employee was awarded damages for the loss of attending at the Men’s Day of $150, lost wages for the period of her unemployment, being almost 7 months, and compensation for injury to dignity, feelings and self-respect in the sum of $18,000.
The potential damages for violation of the Human Rights Code – priceless, employment contract notwithstanding.
McConaghie v. Systemgroup Consulting Inc., 2014 HRTO 295 and request for reconsideration 2014 HRTO 527 (CanLii).