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.
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.
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.
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).
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.
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.