Do employers have human rights obligations to former employees?

Workers quit but employer sent racist and threatening messages when they requested withheld final paycheque
By Jennifer Costin
|employmentlawtoday.com|Last Updated: 02/07/2018

Two sisters from Inuvik Native Bands were employed by White Tornado Cleaning Services, owned by Rhonda Sallows. Their employment ended when they both quit, in response to allegedly being yelled at repeatedly by Sallows. Sallows subsequently told the sisters that she was decreasing their pay rate to minimum wage for their last day of work. Her bad judgment continued when she then withheld their last pay.

When the sisters sent texts to Sallows, informing her that they would be filing a complaint with the Employment Standards office if she did not pay them their earned wages, she replied with an onslaught of threatening, discriminatory messages, including referring to the women as "FAS kuds" (sic), "pill poppers" and “squaws."

Eventually, the sisters did receive their proper pay from Sallows. Not surprisingly, the sisters filed a human rights complaint against Sallows alleging harassment on the basis of sex and ancestry. The Yukon Human Rights Board of Adjudication was required to determine whether harassment occurred, as defined by the Yukon Human Rights Act. Like many other jurisdictions, the Board had to apply the following test:

  • Did Sallows engage in vexatious conduct?
  • Was this conduct in connection with the sisters’ employment?
  • Did Sallows know or ought to have known that her conduct was unwelcome?
  • Was the harassment in relation to their sex and/or ancestry?

Many of you reading this will undoubtedly be able to quickly answer the first, third, and fourth points positively. However, were the comments made by Sallow after the women’s employment ended sufficiently connected to their employment? The answer is yes. The board reasoned that because the comments were made in the context of the women trying to collect their last paycheque, the conduct was sufficiently connected to their employment. Had the comments been made after the pay had been made, in a different context, the answer may have been different.

The most surprising aspect of this decision was the monetary amount awarded to the women. Damages in the amount of $7,500 were sought for each woman. Ultimately, the board ordered only $2,500 per complainant, noting the “relatively short duration” of the treatment, which in my view underestimates the impact that such racist, sexist and demeaning comments likely had on the women.

Other than providing a laundry list of what not to do as an employer (and a human being), this case also acts as a reminder that employer obligations to past employees do not always get extinguished when their employment ends. Ongoing obligations, including the duty not to harass or discriminate former employees on human rights protected grounds, can still be imposed if there is some remaining connection to their employment, such as with respect to owed wages, Records of Employment, reference letters and reference checks to name a few.

For more information see:

  • Simon v. Sallows, 2017 CarswellYukon 90 (Y.T. Bd. of Adj.).

Jennifer Costin is a partner in the London, Ont., office of Siskinds LLP, practicing exclusively in the area of management-side labour and employment law. She can be reached at (519) 660-7706 or jennifer.costin@siskinds.com.

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