In Islam v. Big Inc., three former Employees of Le Papillion restaurant, located in Toronto, Ontario, alleged various grounds of discrimination against their former Employer, including race, colour, ancestry, place of origin, ethnic origin and creed. The Human Rights Tribunal of Ontario found that the Employer had discriminated against the Employees on various grounds of the Human Rights Code, and awarded the Employees a total of $98,592 in damages.
Background
The three employees, Mr. Malik, Mr. Hossain and Mr. Islam, were employed at the same time in the restaurant’s kitchen. Each of the Employees immigrated to Canada from Bangladesh, and each speaks Bengali and English, however the Human Rights Tribunal of Ontario noted that Mr. Islam “has the least facility with the English language”. Additionally, each of the Employees is an “adherent of Islam”.
On two separate occasions in 2010 the Employer requested that Mr. Malik eat pork and informed him that it was his duty as a chef to try the foods being prepared. Mr. Malik informed the Employer that he could not eat pork due to his religious beliefs and practices, and refused to eat the pork, despite the Employer’s insistence. However, in July of 2010, the Employer again insisted that Mr. Malik eat the pork being prepared. Mr. Malik was concerned about his future employment if he did not consume the pork. As a result, Mr. Malik ate the pork and immediately went into one of the washrooms, vomited and then began to cry. Mr. Malik testified at the Human Rights Tribunal Hearing that he felt very guilty that he had violated his religious beliefs, that he could not sleep that night, and that he was very upset that he will “face punishment” when he dies.
In 2010 the Employer requested Mr. Islam to eat pork while he was fasting in observation of Ramadan. Mr. Islam explained to the Employer that he was prohibited from eating pork due to his religion and that he was fasting. The Employer informed Mr. Islam that “if you make food, you have to taste it”, as well as “if you are fasting you will be weak – you are coming here to work”.
While Mr. Hossain was fasting in observation of Ramadan in 2010, the Employer required Mr. Hossain to taste some soup. Initially Mr. Hossain declined, but the Employer repeated the request. Mr. Hossain worried about being fired, and therefore tasted the soup, breaking his fast. In September of 2010, Mr. Hossain was given time off for the evening of Eid al-Fitr. However, on the evening of the religious holiday, the Employer called Mr. Hossain and indicated that he would have to come into work otherwise he would be terminated. As a result, Mr. Hossain was required to cancel a party he had arranged at his home and attend work.
Additionally, the Employer instituted an English only rule in the kitchen, despite Mr. Islam’s limited ability with the language. At times, when the Employees were communicating in Bengali in the kitchen, the Employer would mock them by saying “blah blah”. The Employees also heard the Employer say multiple times they wanted white staff and wanted “to clean the shit from the kitchen” and bring in new staff by closing down the restaurant for a period of time to accomplish this.
The Employees wrote the Employer a letter of complaint in September of 2010, as well as a further letter of complaint in November of 2010 in response to changes that were being made at the workplace which affected the Employees’ work. Specifically, the changes resulted in the following:
- Mr. Malik was required to work 60 hours a week
- Mr. Hossain’s hours were reduced by one shift per week as well as the duties he was performing
- Mr. Islam’s shifts each week were reduced from 5 to 4 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 Employer did nothing in response to the Employees’ letters, other than rescind the proposed work schedule change.
Decision
The Human Rights Tribunal of Ontario found that the Employer had discriminated against the Employees on numerous grounds and ordered damages for each of the Employees for compensation for violation of their inherent right to be free from discrimination, for injury to their dignity, feelings and self-respect, including the continuing stress caused by failure to investigate their complaints of discrimination, and compensation for loss of income.
Lesson for Employees
The above decision reinforces for employees that their human rights are protected in the workplace, the failure of which can be at great financial cost to the employer. Additionally, it demonstrates that employers are required to conduct investigations into any complaint received regarding the breach of an employee’s human rights, and that accommodation is to be provided at the workplace short of undue hardship.
Lessons for Employers
The above decision should be noted by all employers. While it is well known by employers that they are to ensure that the Human Rights Code is to be complied with at all times in the workplace, the above decision demonstrates the large monetary amounts that an employer may be faced with should a breach of the legislation be found to have occurred. Employers must accommodate an employee’s Human Rights at the workplace short of undue hardship, and be able to demonstrate that such accommodation was provided and or that undue hardship would be experienced should the employer provide the necessary accommodation.
Additionally, it is not only a breach of the Human Rights Code which may result in an award of damages against an employer. As the decision above demonstrates, employers must also ensure that they properly and thoroughly investigate any claims of an alleged breach of the Human Right Code at the workplace, failing which additional damages may be awarded.
Given the extreme complexity that can accompany Human Rights complaints at the workplace, employers should immediately obtain the assistance of experienced Employment Law counsel if any complaints, oral or written, are received from employees. Strategic legal guidance from the very beginning is often critical in managing Human Rights complaints and avoiding huge damage awards as demonstrated in this case.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or employee, we can help. Contact us to see how.
For more details see our article published in Canadian Employment Law Today, March 5, 2014: “$100,000 in human rights damages for restaurant workers”.
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