Author Dylan Hill

Author Dylan Hill

Dylan Hill
June 1, 2011

Defining The Spirit of The Code

HOW ONE ARBITRATOR TURNED TO THE SPIRIT OF THE WORD “COURSE” IN THE HUMAN RIGHTS CODE

The employer makes concrete products in Ontario for use in construction. Mr Rossi is of Italian background and has lived in Canada since 1973. He has worked for the Employer for over 20 years and was required to prepare the appropriate concrete mix for the product being made.

The employer’s production manager is Mr Williams. He has worked for the Employer for over 18 years and has been in his current position for 10 of those years.

Mr Rossi’s work location is noisy and is in a different building from Mr Williams. The orders for the concrete are provided to Mr Rossi over a two way radio system. In addition to Mr Rossi and Mr Williams, two supervisors, and three other employees also have radios. Comments made over the two way radio may be heard by any of the above, or by anyone near a radio.

Mr Williams tried to order concrete from Mr Rossi, however there were communication difficulties. Mr Williams called back to check on his order and found that no order had been placed. There was some dispute as to the origin of the mistake. In the course of further discussion, Mr Williams yelled at Mr Rossi over the radio. He yelled: “You f***ing immigrant, you want me to come up there and teach you how to speak English?”

Mr Rossi was very upset by this comment and he initially wanted to confront Mr Williams, but he was concerned he might do something inappropriate and instead remained at work. He was concerned that he would not be able to pursue a complaint unless others had heard the comment as well. One of his coworkers advised Mr Rossi that he had heard the comment as well. Mr Rossi asked him if he would support a complaint and the coworker suggested that he seek an apology from Mr Williams first.

Mr Rossi spoke to a Union representative (Mr White) and told him of the situation. Mr White looked into the matter and heard of others who had overheard or who knew about the comment. Mr White mentioned the comment to Mr Williams one day in passing and Mr Williams assured him that he would apologize to Mr Rossi. Mr Williams failed to apologize in spite of several reminders by Mr White so the Union filed a grievance on behalf of Mr Rossi.

No dispute

Before the grievance was filed there was a meeting with all involved. The meeting took place after Mr White advised Mr Williams that Mr Rossi intended to file a human rights complaint. Mr Williams asserted that the comment was not intended to offend, said that he had just been kidding and apologized to Mr Rossi. He also offered to put his apology in writing.

Mr Rossi indicated an apology would not be sufficient and he further advised that he wanted a promise that the “white hats” would leave him alone. By this comment Mr Rossi was indicating that he wanted to be free from supervision at work. Mr Williams responded he could not make such a promise and the meeting ended.

Union

The Union sought the following remedies: a written apology, a general order that the Employer not harass, abuse, threaten, yell at, demean, insult or otherwise belittle and abuse Mr Rossi, anger management for Mr Williams, a one week unpaid suspension and $5,000 in damages for Mr Rossi.

Employer

The Employer noted that there was no violation of the collective agreement and the violation could only be of the Human Rights Code. The Employer said there was no discrimination under Section 5(1) and that there was at most a single isolated incident. The Employer submitted that one comment does not amount to harassment under Section 5(2).

Conclusions

The Arbitrator (Mr Hall) concluded that Mr Williams did yell at Mr Rossi, that the comment was upsetting to Mr Rossi, and that the comment was heard by others in the workplace. Mr Hall accepted that Mr Williams’s apology at the meeting was a sincere apology and that his offer of a written apology was also sincere.

Mr Hall concluded there was no evidence of discrimination in respect to Mr Rossi’s employment in the sense that his job, pay, hours of work, vacation, benefits, etc., were all unaffected. He concluded that there was no violation of Section 5(1).

Mr Hall stated he had more difficulty with the issue of harassment under Section 5(2). There are several aspects of that definition and Mr Hall looked at them. Harassment requires that the comment is “known orought reasonably to be known to be unwelcome.” In this case Mr Hall had no trouble in finding that Mr Williams’s comment was such. Mr Hall stated he could not think anyone in a position such as Mr Rossi would welcome such a comment and he did not think Mr Williams would think such a comment would be welcome.

But the Employer said it was a one time comment and because the definition requires a “course” of comments, this single comment cannot amount to harassment.

Mr Hall wrote that as a general point, each word in a statute must be given meaning. However, the use of the word “course” to describe a comment or conduct is uncommon. Mr Hall accepted that the word could have the meaning urged by the Employer, but he did not think that was the legislators’ intention.

Mr Hall stated, “While I accept that often the vexatious comment or conduct will need to be repeated before it is harassment, and that repeated comments or conduct could be said to be a “course” of comments or conduct, I have great difficulty in thinking of any reason why the legislators would have intended to require that a comment such as this, which so obviously referred to the grievor’s ancestry, place of origin and ethnic origin, and which was vexatious and unwelcome, would have to be repeated to amount to harassment under the Code. Given the purposes of the Code, I can think of no reason why the legislators would have intended that in employment every employee would be allowed to make one vexatious comment of a racist or ethnic nature to every fellow employee, and only after the second or third such unwelcome and vexatious comment, would it be considered improper.”

Mr Hall summarized that he believed that the legislators intended that a single comment could be harassment.

Mr Hall declared the Mr Williams’s comment was harassment and a violation of the Human Rights Code.

Remedy

Mr Hall directed Mr Williams to apologize to Mr Rossi in writing and provide a copy to the Union. He found there to be no need for a general order that the Employer not “harass, abuse, etc.” Mr Rossi. Mr Hall noted that Mr Rossi and Mr Williams had worked together for over 18 years and that Mr Rossi worked under Mr Williams’s supervision for over 10 years with no prior incidents. He stated, “One unacceptable comment should not be used to re-write their entire working relationship.”

Mr Hall did not find an award of damages appropriate in this case as it was not a monetary dispute. He was also not persuaded of the need for Mr Williams to be suspended, nor for him to attend an anger management course.

Dylan Hill
March 1, 2011

Harassment – Not Simply A Feeling

THE BURDEN OF PROOF EXISTS FOR THE COMPLAINANT

Ms Mora was employed as a pharmacy technician at a retail location. Mr Karan joined that location as a pharmacist. Ms Mora complained that she had been harassed and then subsequently complained that her Employer had failed to take appropriate steps to deal with her harassment complaint. The Employer denied that Ms Mora had been harassed and said that it had conducted a proper investigation of her complaints.

Ms Mora alleged that over the period of two years during which they worked together, Mr Karan made verbal comments to her, which amounted to harassment on the basis of age and sex.

Ms Mora’s first example constituted a comment made by Mr Karan soon after he came to be employed at the same location. Mr Karan said that he liked his new job and that he intended on staying at the pharmacy. She did not provide any detail as to how this comment harassed her on the basis of age or sex.

Ms Mora testified that there was further harassment when Mr Karan told her he might call head office and say bad things about her and that head office would believe him as the Employer needed pharmacists and did not need pharmacy technicians. Mr Karan denied the allegation but did indicate he had concerns with Ms Mora’s work performance which he addressed with management.

Ms Mora testified that Mr Karan told her that the job of pharmacy technician was an easy job and that he wanted it for his wife. Mr Karan denied the comments and indicated that his wife ended up working in the same pharmacy as a pharmacist. She said he made comments about the value of her house and her RRSP’s. Ms Mora asked Mr Karan how he would know where she lived and asked if he had driven by her home. He did not answer but Ms Mora took his body language to mean that he had indeed driven past her home.

Ms Mora said he was always complaining and putting her down in any way he could.

27 months later

Ms Mora testified that 27 months later Mr Karan yelled at her “What kind of hormones are you taking?” Ms Mora understood that comment to be a reference to menopause and to her age. He had earlier asked her what she was doing to remain so youthful, so young looking. Mr Karan denied making the comment or yelling at her. He indicated he had filled prescriptions for her on occasion so had some access to her medication information.

Reported

Ms Mora said that there had been one or two meetings where she, the store manager, Mr Karan and, the pharmacy supervisor had discussed matters relating to the difficulties between herself and Mr Karan. She said that she had not reported her specific concerns to the Employer but, instead, she had indicated that Mr Karan was treating her unfairly, yelling at her, and scolding her. She said that Mr Karan brought up her poor job performance. She testified that nothing was solved at the meetings. Management testified that they addressed the situation appropriately.

The complaint

Ms Mora filed a Human Rights complaint and that was examined as part of the Arbitration. During examination, Ms Mora acknowledged that in her complaint she had deliberately provided incorrect dates for some of the alleged incidents of harassment. Ms Mora had dated some of the incidents 2 years later than they had actually occurred to make them appear more recent. Ms Mora testified that she felt she had to take these steps, in order to protect herself because no one would give her any protection.

Ms Mora testified that she had been off work for a significant period of time and attributed that time off to dealing with Mr Karan. She indicated that the interactions with him had caused a variety of medical disorders, including nausea and vomiting when considering a return to the workplace.

During cross examination at the Arbitration, she stated that the concern she reported to management about Mr Karan was related to him being ‘short’ with her and raising his voice. She agreed that Mr Karan indicated he had concerns with her job performance at that meeting. She also agreed that Mr Karan had said that if he offended her he was sorry and that he did not intend to offend her. She agreed that she and Mr Karan were told that they needed to be civil to one another and work together.

Ms Mora testified that she had requested a meeting with Ms Shore (the Employer’s Senior Manager, Industrial Relations) with a Union representative. She said she had wanted to meet with her because all the other persons investigating her complaints had been men. Ms Shore asked her about the events and they had a full meeting about the issues. Ms Shore asked if anyone had witnessed the events and Ms Mora took that to mean that she did not believe her.

Observations

Ms Mora failed to respond frequently during the cross examination and needed to be asked questions multiple times. When advised that witnesses contradicted her testimony, Ms Mora frequently responded that they were not truthful persons.

Ms Mora wrote several letters to others within the organization complaining that she had been harassed and complaining that the Employer had failed to respond to her harassment complaint. The Arbitrator found that the letters uniformly “stretched the truth.” She characterized the issues as being ignored by management. A number of her comments were contrary to her own evidence at the hearing.

The Findings

The Arbitrator examined each of the reported incidents and weighed them against the Human Rights Code and the Collective Agreement. Ms Mora had complained that she had been harassed on the basis of age and sex.

He concluded that harassment had notoccurred.

Further, the Arbitrator looked at the credibility of the main parties. Henoted that Ms Mora was willing to lie on her Human Rights Code complaint. He also noted her willingness to shape her evidence to her favor both in her letters to the Employer and at the hearing. He found that Ms Mora was not a direct and forth right witness at the hearing. He found Ms Mora lacked credibility.

The arbitrator found Mr Karan to be a credible witness.

The Arbitrator found the Employer did conduct a reasonable investigation and reached a conclusion that no harassment took place based on its review of the evidence. The Employer reviewed the matter on at least two further occasions and, in each instance, reaffirmed its earlier conclusion. The arbitrator stated “I can find no fault with the Employer’s investigation.” The arbitrator concluded “both the grievance and the complaint under the Code are dismissed.”

Dylan Hill
December 1, 2010

On A Frolic – Rogue Supervisor

How a lack of Management training can cost you

Mr Hornsby was employed as an Operator at a City yard. He was discharged from the City by way of letter dated December 24th which referred to ‘inappropriate behavior in the workplace’. The ‘inappropriate behavior’ related primarily to a number of statements made by Mr Hornsby to visible minority employees. The Union submitted a grievance which alleged that Mr Hornsby had been unjustly discharged.

Counsel for the Union acknowledged that Mr Hornsby had used inappropriate language in the workplace but submitted it had been known to management when it occurred. He contended that the City should have provided Mr Hornsby with an opportunity to correct his behaviour by advising him that his comments were inappropriate and that if they continued his employment would be in jeopardy.

Mr Jack was a visible minority employee at the yard and he described himself as being from Jamaica. Mr Jack testified that Mr Hornsby used highly inappropriate language towards him and made him the butt of jokes.

Mr Jack related an incident involving a toy gorilla. Mr Jack said he went to relieve Mr Hornsby and saw a toy gorilla hanging in the booth. Mr Hornsby said he had acquired the toy for his cat. Mr Jack was so upset, he threw the gorilla in to the compactor. Mr Jack said Mr Hornsby made a comment that Mr Jack had thrown it out because he did not like it as it reminded him of himself. Mr Hornsby denied making the statement. Mr Hornsby was heard making various statements about gorillas, monkeys and grease monkeys in the workplace and related the comments to Mr Jack.

Mr Hornsby also changed some of the terms in the workplace to have racist meanings. The term ‘back blading’ was altered to ‘black blading’, the instruction to use a back hoe was modified to ‘hoe time’ or calling Mr Jack ‘hoe boy.’

Mr Jack told Mr Hornsby to stop calling him these names and using the references. He complained to a variety of supervisors. He said Mr Hornsby’s behavior would improve for a bit, then worsen again.

Mr Hornsby referred to a Caribana festival and proposed making up shirts that referred to ‘colored kids’ and also referred to the festival being perfect for white people to go recover the goods black people had stolen from them.

Mr Hornsby referred to gunplay in the lunchroom and said, “Let all the spooks shoot each other.” He also accused an employee who was a visible minority of calling another employee ‘the n word.’ He referred to Mr Jack as “a shady character” and “a black beauty”. Mr Hornsby referred to a road called “Whites road” and indicated black people could not cross it.

Several employees complained to various levels of management without avail. They were simply asked if they wanted to report it. The employees told management they simply wanted the behavior to stop.

Employees had told Mr Hornsby that his comments needed to stop. Witnesses to the behavior made comments about it with supervisors present. Nothing was done because nobody expressed the desire to file a formal written complaint.

City’s position

The City contended that Mr Hornsby had engaged in calculated harassment and discrimination against Mr Jack and other employees. He contended that management had not condoned racial name calling in the workplace. He argued that if a supervisor had failed to do anything about such conduct this did not mean the City had condoned it but rather that the supervisor had been on “a frolic of his own” or was acting in a “rogue capacity”.

He argued that the Union should not be able to hide behind a claim of condonation since a Union steward had known about the name calling and had not taken it up with the Union hierarchy or with management.

He said he was pleading to have a 27 year employee who was 56 when discharged be given a second chance. He submitted that the principles advanced by the City could be upheld short of discharge.

Union position

Union counsel contended that Mr Hornsby was not the only one who had failed to meet the standards set out in the human rights policy. He argued that employees, front line supervisors and managers failed to meet those standards.

He submitted that others in the work force had used expressions of a racial nature, including Mr Hornsby. He said that while condonation is not a defense it can be taken into account when assessing the proper penalty.

He reviewed the occasions when employees had advised supervisors of what had occurred and in response the supervisors had done nothing other than ask if they wanted to file a complaint. He argued that this had not been in accordance with the City’s policy and that there had been an onus on management to do something about the situation. He submitted that the supervisors had never told Mr Hornsby that his conduct was inappropriate.

He contended that the City had failed to put Mr Hornsby on notice that due to his conduct his continued employment was in jeopardy and allow him the opportunity to cease and desist from such conduct.

Conclusion

The arbitrator did not accept the City’s suggestion that it can escape responsibility for the lack of management action when employees complained by saying they were ‘on a frolic’ of their own or were rogue supervisors. He found that the evidence suggests that the supervisors understood that they should only address an employee’s complaint about another employee if they were willing to put it in writing. He concluded, “While such an approach has now generally been discredited with respect to issues involving racial and sexual harassment it was the approach utilized…”

The arbitrator concluded that some evidence of other employees using racist language in the workplace existed and that all such occasions would have been liable to some sort of discipline. He stated,“The evidence, however, indicates that most of the racial terms in the workplace were used by the griever. His conduct differed in nature and degree from that of the other employees.

He concluded that management had not lived up to it’s responsibility of taking appropriate action on becoming aware of the situation. He stated, “Not withstanding this, most of the offensive language used by the griever would reasonably have been known by him to be unacceptable and he did not change his approach after…” Mr Jack complained to him about the language.

Finally, the Arbitrator concluded, “…that the City had reasonable cause to discharge the griever and I am not prepared to substitute some lesser penalty.”