An employer’s rare tribunal win

SWorkplace Law ecuring employer victories at the Human Rights Tribunal is generally as promising a result as pollsters and prognosticators had foreseen for Donald Trump.

I have written in earlier columns about how the tribunal is rife with frivolous claims of discrimination supported by little more than bald, often irrelevant, allegations. It is a complainant-centric forum that provides employees clear paths to success along with free lawyers provided by the Ontario government.

Yet there are no consequences for employees who are unsuccessful, to disincent even those complaints that have little merit. The problem is exacerbated by mediation that takes place before hearings, and which amount to legal shakedowns, replete with constant reminders of how expensive the process will be if they don’t settle, even if the employer wins.

However, a recent case gives employers hope. Tenaris Algoma Tubes not only secured an unequivocal victory but did so swiftly, avoiding a costly hearing altogether.

Jacqueline Nicastro, a benefits analyst with more than 13 years of service, was terminated as result of a downsizing. She was offered a reasonably generous 52-week severance package.

After negotiating a marginal improvement, Nicastro signed a full and final release confirming she had no further claims against Tenaris under the Human Rights Code or otherwise.

However, Nicastro suffered buyer’s remorse ex post facto and commenced a Human Rights Tribunal application claiming discrimination based on disability and age. She alleged her employer was aware she had been in a car accident months earlier and that prompted her termination. She also claimed she signed the release because Tenaris made misrepresentations to her about the company downsizing. She also asserted she had signed the release under duress as her employer allegedly knew she was under financial pressure.

Instead of taking the traditional route of filing a response, proceeding to mediation and then attending a multi-day hearing, Tenaris filed a request for dismissal as soon as it was served. It required the tribunal to conduct a preliminary hearing by phone seeking an order to have the entire application struck as an abuse of the its processes. decision for employers generally, it also uncovers the mechanism of early dismissal for employers to use to extinguish baseless human rights complaints before they become costly.

Situations in which employers should move for an early dismissal of a human rights complaint include: Often disgruntled employees launch applications at the tribunal complaining of “bullying”, “harassment” or other grounds not protected under the human rights code. Examples include matters driven by “office politics” and general bullying rather than by the specific grounds of discrimination delineated in the Code.