Temporary Foreign Workers and Workplace Harassment

Recently, the Human Rights Tribunal of Ontario (the “Tribunal”) released what has been described by some as a landmark Human Rights decision involving Temporary Foreign Workers (“TFWs”). The case, O.P.T. v. Presteve Foods Ltd. (“Presteve”), involves two sisters employed as TFWs who the Tribunal found were repeatedly sexually harassed by their employer. After reviewing the numerous instances of sexual harassment by the employer, and establishing the credibility of the two sisters, the Tribunal awarded the sisters $150,000 and $50,000 respectively for injury to their dignity, feelings and self-respect. 

This award for damages is the highest ever for injury to dignity, feelings and self-respect awarded in Canada. Generally, awards ranged from $500 to $15,000, with the previous maximum being $75,000. In justifying its decision, the Tribunal declared that the serious and repeated nature of the conduct of the employer and the vulnerability of the sisters as TFWs warranted the unusually high award for damages.

Vulnerability of Temporary Foreign Workers

Although Presteve is an Ontario case and not directly applicable to Manitoba Human Rights decisions, it nonetheless serves as an important reminder that employers and human resources (HR) professionals must be mindful of the vulnerabilities of TFWs.

In the Presteve case, the sisters were not only afraid to report the harassment of their employer for fear of losing their jobs and being deported back to their home country, but they were also unaware of their rights under the Ontario Human Rights Code. As such, one of the public interest remedies ordered by the Tribunal was the requirement that Presteve Foods provide all TFWs with human rights information and training in the native language of any such hire for a period of three years.

Implications for Employers and HR Professionals

It is important for TFWs to understand their rights so that they are not afraid to report instances of workplace harassment. Had the sisters been aware of their rights in the Presteve case, they potentially could have reported the instances of harassment much sooner. If this had occurred, it may have been possible to put a stop to the  harassment which could have  reduced the  extensive award of monetary damages.

One message from this case is that by educating TFWs with respect to their rights in the workplace, employers may be able to prevent further suffering in the workplace experienced by TFWs and limit their legal exposure.

Cost Effective Education Programs

Employers and HR departments may want to implement programs to educate TFWs on their rights and how to report instances of harassment in the workplace. These programs, in combination with other mediums educating employers on workplace harassment, can help reduce, and hopefully eliminate, harassment in the workplace.

The Ontario Human Rights Commission provides a free, multilingual online module that provides information regarding an employee’s rights. The Manitoba Human Rights Commission offers a number of low cost workshops and seminars educating employers and HR professionals on how to educate employees and implement anti-harassment work place policies. Participating in these programs and educating employees, including TFWs, serves as a low cost means of avoiding costly litigation and damages in the future. 

R. Reis Pagtakhan is an immigration lawyer and partner at Aikins Law in Winnipeg, Manitoba.  He may be reached at 204-957-4640 or www.aikins.com

Geoff P. Schneider is an articling student-at-law at Aikins Law in Winnipeg Manitoba.