Wednesday, August 29, 2012

Human Rights: Consolidation and Disclosure

There's an interesting series of cases proceeding before the Human Rights Tribunal of Ontario (HRTO), including the recent decision in Fawzy v. Paris Jewellers.

Mr. Fawzy's allegation is that he reported to the employer sexual harassment allegations made by two of his staff members, Ms. Biazrov and Ms. Shiwrat, and all three of them were fired as a result.  (Mr. Fawzy appears to have been dismissed in 2011, and the others were dismissed many months later in 2012.)  Mr. Fawzy's version of events appears to be that the alleged harasser had a close relationship with management, and therefore management did not want to properly deal with the complaints, and instead cleaned house.  It appears that the employer acknowledges that there were sexual harassment allegations, and that Mr. Fawzy communicated the allegations to the employer, but takes the position that his dismissal was for unrelated reasons.

All three filed applications, and the Tribunal queried whether or not the three should be consolidated, and requested that the parties advise if they objected to the consolidation.  As well, Mr. Fawzy requested production of various documents, including the report resulting from the employer's investigation into the misconduct.


The employer made submissions arguing against the consolidation of Fawzy's application with the others, on the basis that the proceeding will focus on Fawzy's alleged performance issues, and not the allegations of sexual harassment themselves.

The Tribunal accepted this argument:  The material facts to Fawzy's application are that he related allegations of sexual harassment to the employer, and the employer did not dispute that.  Whether the allegations were justified is immaterial, and Mr. Fawzy's hearing will "not need to include evidence on whether the sexual harassment occurred, or whether Mr. Fawzy reported harassment complaints to the [employer], whereas Ms. Biazrov's and Ms. Shiwrat's hearing will need to focus on that evidence."


While some of the disclosure requests were granted, the report was not.  Again, the Tribunal finds that whether or not the harassment was justified is not material to Mr. Fawzy's application, and therefore there is no reason that the report needs to be disclosed - if there was a reprisal, it exists regardless of whether or not the complaints were ultimately substantiated.

Similarly, while Mr. Fawzy asked for production of the alleged harasser's resume, on the theory that it would demonstrate that the harasser was unqualified for the position, thereby supporting his theory of nepotism, the HRTO concluded that the reasonableness of the employer's response to the complaints was not material to whether or not it engaged in reprisal against Mr. Fawzy.

My Thoughts

I would question this decision.  Most of its conclusions ultimately turn on the premise that whether or not the employer dealt with the complaints themselves reasonably and in good faith is immaterial to whether or not Mr. Fawzy experienced reprisal.

Let me first highlight one important fact:  It does not appear to be particularly clear that Mr. Fawzy's action, in advising the employer of the harassment complaints, is one which triggers reprisal protection.  Reprisal protection covers enforcing one's own Code rights, and refusing to infringe another's Code rights.  Mr. Fawzy's conduct is only protected if it can be characterized as a 'refusal to infringe' the Code rights of Ms. Biazrov and Ms. Shiwrat, though I would argue that a purposive interpretation of the provision would tend towards such a conclusion.

While that is important, it is in no way determinative of this decision.  If his actions did not trigger reprisal protection, the case falls off the rails without even needing to ask why he was fired.  If they did trigger reprisal protection, then the only question is "Why was he fired?"  In other words, it is a question of motive for the employer.

With that in mind, and with the utmost respect to the HRTO, I would argue that it is highly problematic to argue that whether or not the employer approached the complaints themselves reasonably and in good faith is immaterial to its motive for terminating Mr. Fawzy.  If one supposes that Mr. Fawzy's theory of the case is right, that the employer was highly motivated by a personal relationship with the alleged harasser, and therefore wanted to sweep the matter under the rug, the employer's interactions with the alleged harasser are very relevant, as is the investigation report and the employer's response to the report.  On the other hand, if Mr. Fawzy is wrong, and the harassment allegations were unsubstantiated, it is much harder for him to point to some motive for the employer's alleged "shoot the messenger" response.

In other words, the Tribunal's preliminary decision here seems to presuppose that the substantive harassment allegations had nothing to do with the decision to terminate Mr. Fawzy, when that appears to be precisely what is being alleged by Mr. Fawzy.

There's also a question of process.  It's not entirely clear whether or not Fawzy had an opportunity to make submissions in support of consolidation (if Fawzy supported consolidation, which is also unclear).  The Tribunal proposed to consolidate, and upon receipt of the employer's submissions to the contrary, determined that consolidation is inappropriate, without querying whether or not Fawzy wanted to make submissions in support of consolidation.  Does Fawzy retain the right to bring a new request for consolidation if he so desires?  Probably not - the Tribunal determined the matter as between the parties.  Yet to have made a binding determination of the matter without having given Fawzy an opportunity to make submissions would violate the principles of natural justice.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

No comments:

Post a Comment