The Ontario Court of Appeal in Hucsko v. A.O.Smith Enterprises Limited overturned the trial judge’s decision and found that the employer did have just cause to terminate the employee, who was a Senior Product Designer with 20 years of service.
Developmentally Disabled Employee Paid Less than Minimum Wage
Developmentally Disabled Employee Paid Less than Minimum Wage Awarded over $185,000 by the Human Rights Tribunal of Ontario
The Employment Standards Act was amended in 1986 to repeal a provision that allowed Employers to pay people with disabilities less than minimum wage. Surprisingly, in 2014, despite legislation designed to protect an individual’s self-worth, the Human Rights Tribunal of Ontario found that Ms. Garrie, an intellectually disabled St. Catharine’s woman was being paid only $1.25/hr. when the Company terminated her employment after 10 years of service.
Ms. Garrie was a general labourer packaging wine bottles for export for Janus Joan Inc. Ms. Garrie as well as other disabled employees performed substantially the same tasks as other general labourers employed by the Company but were paid between $1.00-$1.25 hour.
The Company argued that the positions it offered to disabled persons were “volunteer trainee” positions with no responsibility or accountability. The Tribunal failed to see how the Company could possibly refer to Ms. Garrie as being in “training” or call her a “trainee” when she had been doing a simple manual labour job substantially the same as other general labourers who did not have a developmental disability for a period of more than 10 years. Further, the Company disclosed a letter at the hearing which indicated that not only did Ms. Garrie and other disabled employees have responsibilities but that they were in fact accountable to a supervisor and reprimanded for job performance issues.
The Tribunal alluded to a pay practice that it felt may be widespread in Ontario. In doing so, it concluded that the Company likely knew that these disabled employees were receiving ODSP payments from the provincial government and that in agreement with the parents of these workers, intentionally set their compensation just under the threshold for claw back of ODSP payments in order that these workers could maintain receipt of such payments from the government.
The Employer’s practice was found to be discriminatory based on disability and the following order was made by the Tribunal:
- That the Company pay Ms. Garrie $161,737.87 as monetary compensation for lost wages both during employment and post-employment; and
- That the Company pay Ms. Garrie $25,000 for violating Ms. Garrie’s right to be free from discrimination in the workplace and to compensate her for the injury to her feelings, dignity and self-respect contrary to the Ontario Human Rights Code.
In addition, The Tribunal issued a cease and desist order relating to the Company’s wage practice and was ordered to receive training by an expert in disability-related discrimination within 60 days. Lastly, the Tribunal ordered a copy of the decision be delivered to the Ontario Human Rights Commission with a recommendation that they investigate how widespread these pay practices are across the Province and in turn make recommendations on how to rectify the problem.
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