Ripping  off  employees  (Part 1)                                                        

Unfortunately there are occasions when some employers rip off their employees. This article is about one such employer who was cheating its employee out of what was owed to her in wages. The matter ended up in front of the Ontario Human Rights Tribunal.           

 

The person who was ripped off was a person who was mentally handicapped. I shall refer to her initially as the employee and later as the Applicant rather than cite her name. Her mother filed the application to the Tribunal on behalf of her daughter.

 

For more than ten years, the employee and other persons with developmental disabilities worked as general labourers on the work site of Janus Joan Inc. (hereinafter referred to as the company and later as the Respondent). They were paid a training honorarium of $1.00 to 1.25 per hour, while general labourers working in the company doing the same kind of work and who did not have developmental disabilities were paid the statutory minimum wage in Ontario. In 2009, (the years her job was terminated) the minimum wage was $9.50. In 2008, it was $8.75. In 2007, it was $ 8.00. In 2006, it was $7.75. In 2005, it was $7.45. As you can seem it was raised every year as the cost of living was being raised also. Incidentally when I was working in Vancouver in 1951, the minimum wage was only 30 cents an hour but then the cost of living was much lower then.

 

Well-designed workplace employment equity and pay equity policies and programs have a positive impact on individual Canadians by creating an 'even playing field' for all. They also benefit the Canadian economy by taking full advantage of the abilities and talents of all citizens.

 

Admittedly, someone who is mentally challenged and is working for a company isn’t expected to make as much money as a wage as someone in the company who takes on greater responsibilities but they are expected to be paid at least the minimum wage. Paying these unfortunate people a mere $1.00 to $1.25 an hour and calling it a training honorarium is akin to feeding a starving person three kernels of corn and calling it a meal. Since the employee was doing the same job that other employees in the company who were not mentally challenged were doing, it follows that she should have been paid the same.
                                                                                        

 What kind of sleaze bag would treat employees like they treated that employee? Her name is Stacey Szuch (hereinafter referred to as the owner). This horrid woman refused to give the employee an electronic pass card, refused to pay her overtime, and terminated her employment because of her disability.                                                                                                           
 

The Tribunal delivered a copy of the employee’s complaint (Application) to Janus Joan Inc. and its owner, Stacey Szuch (the respondents) who communicated with the Tribunal by telephone and letter, but failed to file a Response.  The letter stated that Janus Joan Inc. was “closed”, but did not attach any supporting documentation showing that it was closed.

 

The Tribunal concluded that the respondents were evading service of further correspondence from the Tribunal, and were refusing or choosing not to participate in the proceeding.  The consequence of the respondents’ failure to file a Response and comply with the Tribunal’s Rules and directions was that the Tribunal deemed the Respondents as having accepted all of the allegations of the their former employee, and to have waived all rights with respect to further notice or participation in the proceeding.

                                                                               

Many years ago when I was a process sever, I tried to serve the president of a large company with a civil summons at the request of a foreign court but he was evading the service. The trial went on without him and judgment was signed against him personally for over a million dollars. The judgment was then transferred to an Ontario Court for enforcement. That foolish man tried to overturn the judgment but his application to get a new trial was refused. Let this be a warning to my readers. If you are served a document such as the ones I described, don’t ignore them. It can cost you dearly if you do.          

 

During the hearing, the applicant’s mother presented evidence that Janus Joan Inc. paid the applicant less than other employees because of her disability, and terminated her employment because of her disability.  The allegations that the respondents refused to give the applicant an electronic pass card and refused to pay her overtime were not pursued. That is because the issue of not being paid overtime could be dealt with by the Department of Labour.         

 

The adjudicator initially ruled, “First, I dismissed the allegation that the respondents discriminated against the applicant by paying her less than employees who did not have developmental disabilities on the basis that the allegation was untimely, and therefore outside of the Tribunal’s jurisdiction.  Second, I upheld the allegation that Janus Joan Inc. discriminated against the applicant on the basis of disability when it terminated her employment.  To remedy the discrimination, I order Janus Joan Inc. to pay the applicant $15,000 as monetary compensation for the violation of her inherent right to be free from discrimination and for injury to dignity, feelings and self-respect, and $2,678.50 as monetary compensation for lost income.” unquote    

 

On February 13, 2012, the applicant, who was now represented by the Human Rights Legal Support Centre (HRLSC) filed a Request for Reconsideration of the adjudicator’s jurisdictional decision to dismiss her allegation that the respondents discriminated against her by paying her less than employees who did not have developmental disabilities.  The Request also stated that the Application probably should have been filed by the applicant’s mother in the capacity of litigation guardian. 

 

On February 28, 2012, an insolvency and restructuring firm filed documents with the Tribunal, which indicated that Ms. Szuch had filed for bankruptcy and a trustee of her estate had been appointed in February 2010. On May 4, 2012, Ms. Szuch filed a Response to the Request for Reconsideration, which was, in substance, a Response to the Application, rather than a Response to the Request for Reconsideration. 

 

Notwithstanding Ms. Szuch’s bankruptcy and the protection that it afforded her in the case before the Tribunal, she wanted to respond because, unchallenged, the applicant’s mother had been allowed to destroy her personal and professional reputation.

That woman had the audacity to blame someone else for the bad reputation she acquired. After all, it was she who was cheating her developmentally disabled employees, not the Applicant’s mother. 

 

Then in order to make her ugly behavior appear as if she was a saint, Szuch claimed that she and another person, V.M., formed Janus Joan Inc. in 1997 while they were both working for non-profit social service agencies that provided support and services to persons with developmental disabilities and that Janus Joan Inc. had formal agreements with these agencies to provide “work activity and training” to persons with developmental disabilities.

 

GARBAGE. If the only employees in her company were developmentally disabled persons, I might believe her but she employed other people who were not developmentally disabled. Both the disabled and the non-disabled employees performed the same heavy lifting and manual labour duties mutually as general labourers and that the only tasks that that the developmentally disabled persons did not perform were those that required fine skills, such as labelling wine bottles.

 

The applicant’s mother testified that her daughter generally attended work full-time and performed 40 hours of work per week.  She stated that her daughter and other general labourers with developmental disabilities were initially paid a training honorarium of $80 bi-weekly or $1.00 per hour, which, after a few years, was increased to $100 bi-weekly or $1.25 per hour.  By contrast, she stated, the general labourers who did not have developmental disabilities were paid at the minimum wage level or higher.  The Tribunal admitted into evidence receipts that show that the respondent paid the applicant a $100 “training honorarium” between September 27 and October 10, 2009, and another one for the same amount between October 11 and 24, 2009. Her daughter and other disabled employees were each being paid $40.00 a week. The non-disabled employees were each being paid $380.00 a week.
 

The owners of the company saved themselves thousands of dollars in payroll expenses each month by cheating the company’s ten developmentally disabled employees of what was really due to them in wages.

 

The applicant’s mother testified that the applicant also received ODSP payments from the provincial government, and that the employment income that she received was reported to the government.  However, she stated, her daughter’s ODSP payments were never reduced because her employment income was just under the threshold for claw back. She testified that she and her husband were uncomfortable with the pay differential, but did not complain until after the termination of the applicant’s employment because her daughter enjoyed her work, also enjoyed socializing with others in the company and Ms. Szuch treated her respectfully.

 

The applicant’s mother knew many details about the work that was being performed on the respondent’s premises because she herself had previously worked there for about one and a half years.  The company paid her at the minimum wage level.

 

Her daughter worked each day between 8:00 a.m. and 4:00 p.m. with a half-hour break for lunch plus two additional 15-minute breaks.  She performed “bull labour” and heavy lifting duties, and performed them at the same speed as the general labourers who did not have developmental disabilities.

 

The Applicant’s mother also worked in the same company as a supervisor but she didn’t know that her daughter was entitled to receive at least the minimum wage until after her daughter was fired. That is when she took steps to correct that injustice to her daughter.  The mother’s other daughter did not have developmental disabilities.               

 

Section 5. (1) of the Ontario Human Rights Codes states that every person has a right to equal treatment with respect to employment without discrimination because of disability. Szuch was breaking the law when she was cheating the Applicant and the other disabled employees out of their rightful pay.

 

The Applicant withdrew her complaint against Szuch because that woman had filed for bankruptcy. She was going after Szuch’s company.                              

  

In Szuch’s written Response, she claimed that the Applicant and other persons with developmental disabilities did not have responsibilities that they could perform and that was why they received less pay.  However, the adjudicator said in his ruling;

 

“In my view, the logical factual inference to be drawn from all this evidence is that the respondent (the company) paid the applicant and other general labourers with developmental disabilities less than the general labourers who did not have developmental disabilities for performing the substantially similar work because the respondent knew that the former group of workers were receiving ODSP payments from the provincial government.  In fact, I find that the respondent, likely with the agreement of the parents of workers with developmental disabilities, intentionally set the honorarium level just under the threshold for claw back of ODSP payments in order (that the disabled workers) can maintain the receipt of such payments from the government. In other words, the respondent’s pay scheme contemplated that the workers with disabilities would be compensated for their work by receiving a training honorarium from the respondent and continuing to receive ODSP payments from the provincial government.  However, this does not change the fundamental fact that the respondent paid the applicant and other general labourers with developmental disabilities less than the general labourers who did not have developmental disabilities for performing substantially similar work.” unquote

 

It must be obvious to anyone reading this article that Szuch’s real intention was to convince workers and/or their parents that she was acting in their best interests when in fact, her real purpose was to break the law and use the money for her own use or that of her company, money that should have gone to the disabled employees instead.

 

Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

 

The respondent’s pay practice was discriminatory when she decided to treat her developmentally disabled employees differently than those who were not developmentally disabled. That too is against the law.

 

The adjudicator in his ruling said in part; 
                                                

“I find that there was a distinction based on disability because the respondent paid the applicant and other general labourers with developmental disabilities less than the general labourers who did not have developmental disabilities for performing substantially similar work solely because the former group of workers had developmental disabilities.  Although the respondent’s differential pay practice allowed the applicant and other general labourers with developmental disabilities to continue to receive ODSP payments from the provincial government, it still had the effect of imposing an arbitrary disadvantage on them because of their developmental disabilities.” unquote

This woman’s decision to blatantly breach the Employment Standards Act by paying the applicant and other general labourers with developmental disabilities below the minimum wage was, by its very nature, an affront to their dignity and a disadvantage.  It is no coincidence, in my view, that workers who receive less than the statutory minimum wage tend to be members of disadvantaged groups in society such as landed immigrants coming to Canada. The minimum wage represents a public policy statement about the worth of human labour in our society.  Underpayment of the disabled persons represents a profound comment about the value of their labour relative to that of the non-disabled people working alongside them." 
 

The respondent’s practice of classifying and referring to the applicant and other general labourers with developmental disabilities as “trainees”, while referring to the general labourers who did not have developmental disabilities as “employees”, even though both groups performed substantially similar work, was a further affront to dignity and a further disadvantage.  It is indisputable, in my view, that a “trainee” has a lower status than an “employee” in the workplace, particularly when they are performing substantially similar work.                                                                

  

The long-term effect of this injustice to the disabled employees is as follows: in contrast to the pay of general labourers who did not have developmental disabilities, the respondent did not withhold Employment Insurance (EI) premiums or Canada Pension Plan (CPP) contributions from the bi-weekly pay of the applicant and other general labourers with developmental disabilities.  As a consequence, the employee was ineligible to receive EI after the respondent terminated her employment, and will receive lower CPP payments in her retirement.  This is a significant disadvantage that was not imposed on the general labourers who did not have developmental disabilities.   
 

Ms. Szuch in her attempt to wiggle out of her predicament argued that the applicant’s mother and other parents of persons with developmental disabilities agreed to the pay scheme.  The applicant’s mother does not dispute this, but, in my view, it was irrelevant because the Code establishes a law which the employer and the parents were legally prohibited from contracting below the minimum wage.
 

The adjudicator summed up his decisions with respect to the law, by saying; “I find that the respondent discriminated against the applicant on the basis of disability by paying her less than employees who did not have developmental disabilities for performing substantially similar work.” unquote  
 

The adjudicator also said in his decision; “I find that, objectively, the respondent’s discriminatory pay practice was a serious violation of the Code.  For more than ten years, the respondent paid the applicant less than certain other workers solely because she had a developmental disability.  To make matters worse, the respondent blatantly breached the ESA by paying the applicant below the minimum wage during those years.” 

The adjudicator also said; “I also find that the applicant has experienced serious emotional difficulties as a result of the discrimination, which are exacerbated by the fact that, as a person with a developmental disability, she is vulnerable to being exploited and discriminated against by employers.  Specifically, I accept the applicant’s testimony that when she was working for the respondent, she did not know how much money the respondent was paying her and her co-workers, but after the respondent terminated her employment, she found out that the respondent had paid her and her friends with disabilities less than her co-workers who did not have disabilities, which made her very upset, angry, sad, and disappointed because she feels that the respondent took advantage of her and her friends because they have disabilities. I find, overall, after considering the seriousness of the violation of the Code, the applicant’s individual circumstances, and this Tribunal’s case law,(former decisions) that $25,000 is an appropriate award of compensation for the violation of her inherent right to be free from discrimination and for injury to dignity, feelings and self-respect. Money owing under this order bears interest at the post-judgment interest rate and is calculated from the date of this decision.”        

Accordingly, the Tribunal orders were as follows:

(1)    The respondent shall pay the applicant $142,124, less statutory deductions, as monetary compensation for lost income during her employment, and $19,613.87, less any amount claimed for November 6-26, 2010, and less statutory deductions, as monetary compensation for lost income post-termination of employment.  Pre-judgment and post-judgment interest are payable, as set out above, in accordance with the Courts of Justice Act (CJA).

(2)       The respondent shall remit the statutory deductions related to income tax, EI and CPP to the federal government, and issue T4s and a Record of Employment to the applicant.

(3)   The respondent shall pay the applicant $25,000 as monetary compensation for the violation of her inherent right to be free from discrimination and for injury to dignity, feelings and self-respect.  Post-judgment interest is payable, as set out above, in accordance with the CJA.

 In May, 2014, the Human Rights Tribunal of Ontario also awarded the employee $15,000 after it found she was discriminated against on the basis of disability when she was terminated. The tribunal heard that the company fired the other general labourers with developmental disabilities around the same time as the woman I am writing about was fired.

Whatever the final dollar figure for lost wages, the disabled employee isn't expected to profit too much from the decision. She collected Ontario Disability Support Payments at the time she worked for Janus Joan Inc., so any money awarded for lost wages will likely go back to the government.

There is no doubt in my mind that the awards will be much higher when the other disabled employees apply for their just pay etc.
 

The Tribunal also ordered that effective immediately thereafter, the respondent company was to cease and desist from paying workers with developmental disabilities less than Ontario’s minimum wage, and from paying workers with developmental disabilities less than persons who do not have developmental disabilities for performing substantially similar work.
 

There’s no listing for any firm with a similar name of Janus Joan Inc. in St. Catharines now. If that is so, then any money to be seized from the company would have to be derived from the sales of any goods that were still in the company’s warehouse, if any.
 

There were only two good results that came out of this case. It put the sleaze bag out of business and forced her into personal bankruptcy and it sent a warning to others of her ilk as to what will be in in store for them if they abuse their disabled employees.