You can sue for lost wages even if you haven’t been dis­missed

Staff who suf­fer dis­crim­i­na­tion can make hu­man rights case,

The London Free Press - - FP LONDON - Howard Le­vitt writes.

Of­ten stig­ma­tized as award­ing low gen­eral dam­ages com­pared to the courts, the Hu­man Rights Tri­bunal is ac­tu­ally of­ten more ad­van­ta­geous for cer­tain em­ploy­ees seek­ing mon­e­tary awards for their in­come loss. Clients who visit our of­fice are of­ten puz­zled about why their em­ploy­ment was dis­missed in the ab­sence of any ap­par­ent per­for­mance is­sues. This puz­zle of­ten re­mains un­solved for many since provin­cially reg­u­lated em­ploy­ers do have the right to fire em­ploy­ees for any rea­son (short of rea­sons that are dis­crim­i­na­tory), as long as they pro­vide these em­ploy­ees their wrong­ful dis­missal en­ti­tle­ments. This pro­vides the dis­missed — and likely in­come­less — em­ployee some cush­ion so as to not over­whelm them with anx­i­ety re­spect­ing next months’ bills and in­stead en­able them to fo­cus on find­ing com­pa­ra­ble em­ploy­ment. The prob­lem lies in the fact that this fi­nan­cial cush­ion is not pro­vided in­dis­crim­i­nately to any­one fired with­out cause. Rather, the size of the cush­ion, or the amount of rea­son­able no­tice or sev­er­ance pay pro­vided, is de­pen­dent on a host of fac­tors. Gen­er­ally, and among other fac­tors, the longer the ten­ure and older the em­ployee, the greater the en­ti­tle­ment. So what to make of short-tenured em­ploy­ees who may not be el­i­gi­ble for much sev­er­ance pay, if any­thing at all, but ex­pe­ri­ence the same long de­lay, of many months if not years, in find­ing a new com­pa­ra­ble job? Or what about em­ploy­ees, be they short or long tenured, who have a valid ter­mi­na­tion clause in their em­ploy­ment con­tract that re­duces their no­tice en­ti­tle­ments to a few weeks de­spite their long ten­ure? One way to cir­cum­vent these lim­i­ta­tions is by bas­ing the claim on at least one of the enu­mer­ated grounds un­der the On­tario Hu­man Rights Code. If one can es­tab­lish dis­crim­i­na­tion against the em­ployer based on a Code ground and it re­sulted in any sort of lost wages, it no longer mat­ters how long the dis­crim­i­nated em­ployee had worked nor does a valid ter­mi­na­tion clause place lim­its on their en­ti­tle­ment. It should be clearly un­der­stood that “lost wages” un­der the hu­man rights frame­work is not lim­ited in the same way as wrong­ful dis­missal dam­ages. Lost in­come un­der hu­man rights is based on the but-for test: But for the em­ployer’s ad­verse con­duct, what in­come would have oth­er­wise been earned? Un­like claims for wrong­ful dis­missal pur­suant to com­mon law, there is no limit to the lost wages; in­come loss is gen­er­ally con­sid­ered to com­mence from the date of the in­fringe­ment to the date of the hear­ing or set­tle­ment and po­ten­tially be­yond. More ad­van­ta­geously, the length of em­ploy­ment is an ir­rel­e­vant fac­tor in de­ter­min­ing lost wages. In OHRC v Im­pact In­te­ri­ors, the court of ap­peal up­held that the Hu­man Rights Tri­bunal’s award of lost wages, re­flect­ing the dif­fer­ence be­tween what the ap­pli­cant would have earned in her for­mer job and what she ac­tu­ally earned up to the date of the hear­ing, — even though she had only been em­ployed for two days. Em­ploy­ees who oth­er­wise would re­ceive no, or very lit­tle, sev­er­ance pay can be awarded years of lost wages if they can es­tab­lish dis­crim­i­na­tion played a role in their losses and they have taken ad­e­quate steps to mit­i­gate these losses, i.e. find other work. Un­der the Code, the com­plainant can claim any sort of lost wages re­sult­ing from dis­crim­i­na­tion, in­clud­ing be­ing fired from a job, los­ing shifts, be­ing de­nied a raise in pay or pro­mo­tion, not be­ing given a job. In other words, it is not only dis­missed em­ploy­ees who can em­ploy this ap­proach, but any em­ployee who has lost wages due to dis­crim­i­na­tion. As an ex­am­ple, if an em­ployee loses a year of wages due to Code-based dis­crim­i­na­tion, they can claim this amount, even if they would only re­ceive a few weeks’ of wages un­der an em­ploy­ment con­tract or at law. Em­ploy­ees and job ap­pli­cants ex­pe­ri­enc­ing hu­man rights is­sues re­sult­ing in in­come loss should be aware that they have al­ter­na­tive av­enues avail­able be­yond the con­ven­tional no­tice pe­riod en­ti­tle­ments, and that for a cer­tain group of in­di­vid­u­als these other av­enues will be sig­nif­i­cantly more ad­van­ta­geous by way of pro­duc­ing larger mon­e­tary awards. Some em­ploy­ees, whose cases would oth­er­wise be too small to jus­tify pro­ceed­ing, may find it very worth­while in­deed.

Howard Le­vitt is se­nior part­ner of Le­vitt LLP, em­ploy­ment and labour lawyers. He prac­tises em­ploy­ment law in eight prov­inces. The most re­cent of his six books is War Sto­ries from the Work­place: Col­umns by Howard Le­vitt. Twit­­vit­tLaw

Getty ImaGes/is­tock­Photo

Em­ploy­ees and job ap­pli­cants ex­pe­ri­enc­ing hu­man rights is­sues re­sult­ing in in­come loss have op­tions to try to gain larger mon­e­tary awards, writes Howard Le­vitt.

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