A recent decision by the Human Rights Tribunal has the ability to shake the Toronto restaurant industry, explaining that discrimination in the workplace will not be tolerated, even in the restaurant industry. On December 18, 2013, the Human Rights Tribunal ruled that the owners of the restaurant Le Papillon on the Park discriminated against three staff members and ordered the restaurant to pay approximately $100,000 in damages.
The three applicants, Abdul Malik, Mohammed Islam, and Arif Hossain, alleged discrimination in the workplace on the basis of race, colour, ancestry, place of origin, ethnic origin, and creed. They were ridiculed for speaking Bengali, forced to eat pork, and forced to break their Ramadan fast. There were no written policies surrounding eating pork or speaking only English in the kitchen. The owners of the restaurant, Paul and Danielle Bigue, threatened to fire all the Bengali staff and replace them with “white” staff.
Two of the applicants, Abdul Malik, and Arif Hossain had worked at the parent restaurant, Le Papillon on Church Street, since 1995 and 2000 respectively. The restaurant was co-owned by the Bigues, who then left to open their own restaurant, Le Papillon on the Park, in 2009. There were no issues of discrimination at the previous restaurant. The Tribunal explained, however, that even though the owners had employed Bengali Muslims for over ten years with no claims of discrimination, this did not negate the possibility that discrimination had become an issue at the new restaurant solely owned by the Bigues.
The Tribunal recognized that in this case there was little uncontested or objectively verifiable evidence, but in laying out the different standards of proof and evidentiary burdens, was satisfied the discrimination did occur.
Restaurant staff is often in a powerless position. The servers and some kitchen staff are paid below minimum wage, as per the Ontario Labour Board guidelines. Their pay is greatly subsidized by customer tips, correlating to the shifts the staff is given, and/ or the restaurant’s tip-out scheme. As such, a large part of the servers’ and kitchen staff’s earnings is in effect controlled by the managers and owners of the restaurant. Furthermore, many students get restaurant jobs during the summer. And, from much experience, I can attest to the fact that a good summer waitressing gig is hard to find! If one is employed for less than three months, the employer can terminate the employment without notice and without reason.
Therefore, restaurant staff can be in a difficult position, and as one commentator explains, the workers have not been in a position to complain – the restaurant industry is an environment that by its nature fosters an idea that the staff cannot complain about the workplace for (a) fear of termination and (b) missing out on preferential treatment that is potentially provided to the more cooperative staff.
According to CBC News, Bart Lackie, the lawyer for the Bigues, has indicated they will be appealing this decision. Regardless of the outcome, this decision might be a catalyst for change in the restaurant industry. It proves that the rules do apply to the restaurant industry, and that restaurant staff do have a voice. As one commentator says, “This will have repercussions in a few macho kitchens.”
For more information on discrimination in the workplace regarding the restaurant industry contact Sarah Falzon at 416-446-3320.