Your brother-in-law is your boss. During therapy, your child recovers a memory that the brother-in-law — the child’s uncle — sexually assaulted her. Your spouse and the child go to the uncle’s home and accuse him of the horrible crime. You stay out of the confrontation and the uncle has no complaints about your work. But the next day, he fires you on the ground that it is untenable for you to work together any longer.
Q Is this reasonable cause for dismissal — an irretrievable breakdown of trust — or is it illegal discrimination based on family status?
A Ontario’s tribunal-reviewing court, the Divisional Court, ruled that there was no human rights breach: The uncle acted against the father as an individual, not as a member of any distinct or disadvantaged group, the court found — not, in other words, because of his role as a family member, per se. The family relation was incidental.
But now Ontario’s highest court has reversed that decision. Discrimination against individuals can amount to discrimination because of family status, the top court says.
The unnamed employee had worked for his brother-in-law for 26 years. At 56, he was just four years short of retiring with a full pension. And at the time of dismissal, notes Ontario’s Court of Appeal, he had not become actively — individually — involved in the dispute with his brother-in-law.
Writing for the court, Justice Rosalie Abella ruled that “Discrimination is not only about groups [such as families themselves]. It is also about individuals who are arbitrarily disadvantaged for reasons having largely to do with attributed stereotypes, regardless of their actual merit.
“While it is true that disadvantageous stereotypes usually arise when characteristics are attributed to someone based on what people in a particular group are deemed to be capable of, this does not mean that... a [human rights] complainant must be artificially slotted into a group category before a claim of discrimination can be upheld.”
The issue in this case, Justice Abella said, “is not whether the employee/father belongs to a disadvantaged group, but whether he was arbitrarily disadvantaged based on a ground or grounds enumerated in section 5(1) of the [Ontario Human Rights] Code. In my view, he was. It was not merely the employer’s personal animosity that resulted in the dismissal, it was animosity based on the identity and conduct of the employee’s spouse and daughter.
“Marital and family status, therefore, are clearly engaged in this case and engaged in a way that resulted in discrimination to the father.
“The employer’s act under review was the dismissal of the father from his employment. If the father had, over time, shown that he could no longer carry out his employment responsibilities, responsive conduct by the employer might not constitute discrimination.
“But, as the [human rights board of inquiry] found, he was not fired for cause, but because of his wife and daughter’s accusation of sexual abuse against the father’s employer. Therefore, the father was dismissed because of the actions of a person to whom he was married and of another who was a member of his family. His employer thought that he could no longer count on the father’s loyalty.
“The dismissal, which clearly disadvantaged him, was based on the father’s presumed inability, as a husband and father, to be a good employee given the accusations made by his wife and daughter, rather than on his actual merit or conduct.”
For more information: Ontario (Human Rights Commission) v. B. Ontario Court of Appeal, docket C32910, November 14, 2000.
Bureaucrats ability to criticize govt. restricted — but only to a point
Meanwhile, the Alberta courts also have been considering employee human rights, and in what circumstances those rights must give way to workers’ legal duty of fidelity to their employers.
Q How far does the duty go? Is the employee prohibited from making any complaint about his employer, even in an area unrelated to his work?
Jason Gibson was a child protection social worker in the Lethbridge District office of Alberta Family and Social Services. He read a report prepared by Linda Sloan, the leader of the Liberal opposition in the province, which was critical of government programs for children.
He wrote a letter to Sloan complaining that the report was not widely distributed to child protection staff; funding issues identified in the report were only the “tip of the iceberg”; and priorities in the department were misdirected or skewed. Gibson also “encouraged” Sloan and “the opposition to continue to ask questions and make known to the public the potential dangers present in” government changes to child and family services.
Gibson sent copies of the letter to his own MLA, to the Minister of Child and Family Services and to the board for which he was to work upon reorganization of the department.
About three weeks later, Gibson’s supervisor, Pat Logan, asked him to meet with her and the regional program manager. Logan told Gibson that the meeting was not disciplinary, but was meant to determine what Gibson hoped to achieve with his letter.
Gibson replied that he was merely expressing his concerns and he did not regard the letter as a public document.
However, following a similar incident earlier in Gibson’s tenure at the department, the deputy minister of Gibson’s division had sent him an e-mail explaining his duty of fidelity. The e-mail stated that employees were to express concerns to their managers first, and if they did not get satisfaction they could approach the deputy minister or responsible government minister.
Logan and the program manager told Gibson that he had breached this protocol. Logan then put a formal reprimand on Gibson’s file, warning that further violations could lead to dismissal. She also told him that he was forbidden to make any complaints about the government to people outside his department — even a complaint about highway maintenance or anything else unrelated to his work.
Gibson unsuccessfully grieved both the letter and the verbal restrictions.
The grievance officer found that there was no violation of the applicable collective agreement, and that Logan had treated Gibson fairly and legally.
A The Alberta Court of Queen’s Bench court ruled that the grievance officer did not himself breach any rules of fairness, and his rulings were final concerning the collective agreement. However, the court said that Logan went too far when she told Gibson “that he could not criticize or question any decision, policy, or action taken by the government in any area, and that any breach of this could lead to his termination.”
This was a violation of his constitutional right of free expression, the court decided, and it was not outweighed by Gibson’s duty of employee fidelity.
Still, the court did not give constitutional protection to Gibson’s letter to opposition leader Sloan. It breached his duty of fidelity, the court held.
“The formulation and implementation of programs,” Justice Alan Cooke wrote, “is achieved not only by the elected members of the government but more significantly by the civil servants within the department responsible for a particular initiative. It would be inimical to the entire democratic process if a handful of civil servants within a department could undermine government policy by reason of their personal ideological positions and thereby thwart the will of the majority.
“I find therefore that the restrictions placed upon Mason by the e-mail from the deputy minister to Gibson...is rationally connected to the above objective” (of protecting the integrity of government programs).
The limits imposed by the deputy minister amounted to “a balanced limitation on [Gibson’s] freedom of expression in the context of his duty of fidelity to his employer.”
For more information: Alberta Union of Provincial Employees v. Alberta (Min. of Family and Soc. Services), 2000 ABQB 600, action 9903 07782.
Jeffrey Miller is editor of Canadian Employment Law Today. For subscription information, call (416) 609-3800 or (800) 387-5164.
Q Is this reasonable cause for dismissal — an irretrievable breakdown of trust — or is it illegal discrimination based on family status?
A Ontario’s tribunal-reviewing court, the Divisional Court, ruled that there was no human rights breach: The uncle acted against the father as an individual, not as a member of any distinct or disadvantaged group, the court found — not, in other words, because of his role as a family member, per se. The family relation was incidental.
But now Ontario’s highest court has reversed that decision. Discrimination against individuals can amount to discrimination because of family status, the top court says.
The unnamed employee had worked for his brother-in-law for 26 years. At 56, he was just four years short of retiring with a full pension. And at the time of dismissal, notes Ontario’s Court of Appeal, he had not become actively — individually — involved in the dispute with his brother-in-law.
Writing for the court, Justice Rosalie Abella ruled that “Discrimination is not only about groups [such as families themselves]. It is also about individuals who are arbitrarily disadvantaged for reasons having largely to do with attributed stereotypes, regardless of their actual merit.
“While it is true that disadvantageous stereotypes usually arise when characteristics are attributed to someone based on what people in a particular group are deemed to be capable of, this does not mean that... a [human rights] complainant must be artificially slotted into a group category before a claim of discrimination can be upheld.”
The issue in this case, Justice Abella said, “is not whether the employee/father belongs to a disadvantaged group, but whether he was arbitrarily disadvantaged based on a ground or grounds enumerated in section 5(1) of the [Ontario Human Rights] Code. In my view, he was. It was not merely the employer’s personal animosity that resulted in the dismissal, it was animosity based on the identity and conduct of the employee’s spouse and daughter.
“Marital and family status, therefore, are clearly engaged in this case and engaged in a way that resulted in discrimination to the father.
“The employer’s act under review was the dismissal of the father from his employment. If the father had, over time, shown that he could no longer carry out his employment responsibilities, responsive conduct by the employer might not constitute discrimination.
“But, as the [human rights board of inquiry] found, he was not fired for cause, but because of his wife and daughter’s accusation of sexual abuse against the father’s employer. Therefore, the father was dismissed because of the actions of a person to whom he was married and of another who was a member of his family. His employer thought that he could no longer count on the father’s loyalty.
“The dismissal, which clearly disadvantaged him, was based on the father’s presumed inability, as a husband and father, to be a good employee given the accusations made by his wife and daughter, rather than on his actual merit or conduct.”
For more information: Ontario (Human Rights Commission) v. B. Ontario Court of Appeal, docket C32910, November 14, 2000.
Bureaucrats ability to criticize govt. restricted — but only to a point
Meanwhile, the Alberta courts also have been considering employee human rights, and in what circumstances those rights must give way to workers’ legal duty of fidelity to their employers.
Q How far does the duty go? Is the employee prohibited from making any complaint about his employer, even in an area unrelated to his work?
Jason Gibson was a child protection social worker in the Lethbridge District office of Alberta Family and Social Services. He read a report prepared by Linda Sloan, the leader of the Liberal opposition in the province, which was critical of government programs for children.
He wrote a letter to Sloan complaining that the report was not widely distributed to child protection staff; funding issues identified in the report were only the “tip of the iceberg”; and priorities in the department were misdirected or skewed. Gibson also “encouraged” Sloan and “the opposition to continue to ask questions and make known to the public the potential dangers present in” government changes to child and family services.
Gibson sent copies of the letter to his own MLA, to the Minister of Child and Family Services and to the board for which he was to work upon reorganization of the department.
About three weeks later, Gibson’s supervisor, Pat Logan, asked him to meet with her and the regional program manager. Logan told Gibson that the meeting was not disciplinary, but was meant to determine what Gibson hoped to achieve with his letter.
Gibson replied that he was merely expressing his concerns and he did not regard the letter as a public document.
However, following a similar incident earlier in Gibson’s tenure at the department, the deputy minister of Gibson’s division had sent him an e-mail explaining his duty of fidelity. The e-mail stated that employees were to express concerns to their managers first, and if they did not get satisfaction they could approach the deputy minister or responsible government minister.
Logan and the program manager told Gibson that he had breached this protocol. Logan then put a formal reprimand on Gibson’s file, warning that further violations could lead to dismissal. She also told him that he was forbidden to make any complaints about the government to people outside his department — even a complaint about highway maintenance or anything else unrelated to his work.
Gibson unsuccessfully grieved both the letter and the verbal restrictions.
The grievance officer found that there was no violation of the applicable collective agreement, and that Logan had treated Gibson fairly and legally.
A The Alberta Court of Queen’s Bench court ruled that the grievance officer did not himself breach any rules of fairness, and his rulings were final concerning the collective agreement. However, the court said that Logan went too far when she told Gibson “that he could not criticize or question any decision, policy, or action taken by the government in any area, and that any breach of this could lead to his termination.”
This was a violation of his constitutional right of free expression, the court decided, and it was not outweighed by Gibson’s duty of employee fidelity.
Still, the court did not give constitutional protection to Gibson’s letter to opposition leader Sloan. It breached his duty of fidelity, the court held.
“The formulation and implementation of programs,” Justice Alan Cooke wrote, “is achieved not only by the elected members of the government but more significantly by the civil servants within the department responsible for a particular initiative. It would be inimical to the entire democratic process if a handful of civil servants within a department could undermine government policy by reason of their personal ideological positions and thereby thwart the will of the majority.
“I find therefore that the restrictions placed upon Mason by the e-mail from the deputy minister to Gibson...is rationally connected to the above objective” (of protecting the integrity of government programs).
The limits imposed by the deputy minister amounted to “a balanced limitation on [Gibson’s] freedom of expression in the context of his duty of fidelity to his employer.”
For more information: Alberta Union of Provincial Employees v. Alberta (Min. of Family and Soc. Services), 2000 ABQB 600, action 9903 07782.
Jeffrey Miller is editor of Canadian Employment Law Today. For subscription information, call (416) 609-3800 or (800) 387-5164.
