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.”