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CHAUDHRI: Self-represented employees must play by the rules too

If you think you are entitled to red carpet treatment as a self-represented litigant, think again.

A recent decision of the Human Rights Tribunal (HRTO) walks back this longstanding notion placing the responsibility squarely on the shoulders of employees to move forward with their employment cases even if they are lawyerless.

If they ignore the rules, self-represented employees will likely not get a second kick at the can.

On Sept. 9, 2020, the Human Rights Tribunal released the decision of Woo v. Galleria Supermarket, where Joohi Woo alleged the grocery chain terminated her employment because she was “too Canadian” and not “Korean enough” to work there.

Galleria denied the allegation of discrimination, claiming Woo abandoned her job when she refused to accept her work schedule and as a result, effectively terminated her own employment.

From there, Woo seemed to have ignored many of the required Tribunal steps to move her case forward.

Romona Gananathan, the adjudicator, noted that Woo requested to reschedule the first step in the Tribunal process, the mediation; Woo’s first real chance at resolving her case. The Tribunal and the Supermarket obliged, consenting to a new mediation date. The mediation did not result in a settlement.

Then, when a Notice of Hearing was issued for April 30, 2019, Woo again claimed she was not available for the original hearing dates but that she was available in “February or March of next year” or “early April.” Unremarkably (as Tribunals often give self-represented applicants copious amounts of flexibility) Woo was accommodated again, and the Hearing was scheduled to align with her calendar on Aug. 21, 2019.

On the hearing day itself, Woo was nowhere to be found. Representatives for Galleria Supermarket, who were all in attendance, prompted the Tribunal to dismiss Woo’s case referring to her lack of attendance as an abuse of process.

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Even then, Adjudicator Gananathan gave Woo one final opportunity to provide submissions; explaining her failure to attend her own hearing; with a strict deadline. Woo filed her submissions after the deadline.

Woo claimed she was a full-time student in an intensive program in British Columbia and while she agreed to the Aug. 21, 2019 hearing date, this date was not “ideal” for her as a round-trip flight to Toronto would be costly.

Q. I have written my employer many times about returning to work. I got no response for a long time. Then I got a response saying I can come back to work for 2 weeks only, and that HR would see from there if there is more work to do. Should I go back? I sort of regret even asking.

A. If you have been out of work since COVID-19 started it is a good sign your employer is calling you back to work. It is a fundamental change to your employment however for them to have laid you off in the first place, and now offering you piecemeal work. I suggest you go back but make it clear in writing that you expect to return full-time indefinitely and that you cannot afford various starts and stops to your job. Resisting this casual relationship is very important so that you are not limiting your legal right to sue for damages if you are not returned to work after 2 weeks. If you end up back home after the short stint, get legal advice.

Email me at schaudhri@levittllp.com with your COVID-19 related workplace questions and your question may be featured in a future column. Till then, stay safe my friends.

— Sunira Chaudhri is a partner at Levitt LLP, Labour & Employment Lawyers

Notably, Woo alleged she and Galleria Supermarket were in settlement discussions just prior to the hearing date and that she was even prepared to sign settlement documents to settle the entire matter but hesitated because she had no legal advice. The Tribunal did not allow the absence of legal advice to justify her absence and keep her case alive. The adjudicator found the Applicant had a responsibility to “prosecute her case.”

The Tribunal noted that even though its procedures are “less formal than a Court’s and aimed to enhance access,” this informality should not be interpreted to mean that parties should take a “casual attitude” towards complying with Tribunal directions. Adjudicator Gananathan dismissed the case.

Woo’s case is a cautionary tale for all employees. Taking a casual approach to your livelihood and the legal issues you may encounter in employment can be costly. Get legal advice and act on it.

On to your questions from this week:

Q. My workplace has called me back to work, but I do not want to go because people do not wear masks. Apparently because my work is not a “public space” employees who work all day, close to one another, do not have to wear masks. Is that true?

A. If you work in Toronto there is a bylaw that was enacted in July 2020 requiring a mask or face covering in indoor public spaces. If your workplace allows customers to enter or is otherwise open to the “public” they are, with certain exceptions, required to wear masks. The bylaw is clear, however, that employees who work in areas not designated for public access do not have to wear a mask. If you feel uncomfortable, come to work wearing a mask.

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