Court rules termination wasn't discriminatory
The British Columbia Human Rights Tribunal has ruled a B.C. company discriminated against an employee of Middle Eastern background after the Sept. 11 terrorist attacks but did not discriminate against him when he was fired a year and a half later.
Ghassan Asad, 38, is a Muslim from Saudi Arabia who began working for Vancouver-based Kinexus Bioinformatics, a company that works on new biological discoveries and disease treatments, in August 2000. In August 2001, Asad received his Canadian citizenship and decided to take a trip to celebrate. He went to several cities including Toronto, Boston, New York and Washington. He showed his co-workers photographs from his trip and wrote about it in the company newsletter.
Co-workers suspicious after attacks
Four days after Asad returned, the terrorist attacks of Sept. 11 took place in New York and Washington. A co-worker became suspicious of Asad because he was a young, Arab male who had been critical of American policies in the Middle East. She suspected he might have gone on his trip to meet the terrorists. She also felt Asad seemed a little too “jovial” on Sept. 11 and made comments to him about the reason for his trip, his political views and his racial background.
The co-worker reported Asad to the RCMP and on Sept. 17, 2001, RCMP officers came to Kinexus and interrogated Asad in a conference room. The next day, he went through two hours of questioning at a police station and after a third brief interview, the RCMP closed the case on him. All of these interviews focused on Asad’s family, friends, political beliefs and activities and involved him disclosing personal details.
Asad was traumatized and unable to sleep or eat, eventually taking nine days of stress leave. He knew a co-worker had reported him and he couldn’t enter the Kinexus building without getting sweaty and starting to shake. His doctor felt he needed more time off, but Asad returned to work because he was worried his career would suffer.
The company’s president and the director of HR knew suspicions were spreading throughout the office but said nothing. The president felt Asad’s reaction was suspicious, since in his opinion “if people have nothing to hide, they are not so shaken up.”
Attitude worsened over time
As months passed, Asad gained responsibilities at Kinexus. However, he often questioned and challenged company policies, complained to co-workers and was argumentative with HR. In October and November 2002, he worked extra hours to fix a server and firewall that had crashed. Asad believed he would be paid overtime for this work, since he was paid for similar emergency projects in 2001. However, Kinexus claimed those circumstances were unusual and were not consistent with company policy, pointing to many other occasions where he wasn’t paid for long hours.
In February 2003, Asad was asked to submit his time sheet for January, which was necessary for financial reports given to investors and the board of directors. Asad refused to do so until he was paid for the overtime.
In early March, the president told Asad to fill in his time sheets or he would be fired. He later received an e-mail saying his refusal was insubordination that could result in his termination. Asad explained his position and said if he received his overtime pay on the next pay date, he would hand in the sheets.
On March 13, the president told Asad his attitude was a problem. His frequent complaining about management and policies, along with his refusal to submit his time sheets, were a breach of the employment agreement, said the president, and he could resign or be fired. Asad refused to resign and filed a human rights complaint, claiming discrimination in his employment and termination.
Suspicions were discriminatory
The tribunal said the issue of a co-worker reporting Asad to police was outside of the workplace, but her comments to him and other Kinexus employees contributed to a poisoned work environment. Management’s lack of action once it became aware of employees’ suspicions and their effect on Asad’s health made it an employment-related problem. The tribunal found Asad’s co-workers and Kinexus discriminated against him in his employment because of his race, religion, place of origin and political belief.
“When he returned to work after nine days of stress leave, Mr. Asad trusted and relied on (Kinexus management) to provide protection and a safe workplace,” the tribunal said. “Instead, they were part of, and contributed to, the dark cloud of suspicion that hung over Mr. Asad at Kinexus.”
However, the tribunal found, from Kinexus’ perspective, Asad had become a problem due to his demands, complaints and defiance of management’s orders. Asad worked at Kinexus for more than one year after Sept. 11 and received a substantial raise, so the tribunal said the decision to terminate him was likely a business one.
But Kinexus was ordered to pay Asad $6,000 for injury to dignity, feelings and self-respect from his employment-related discrimination and $599 for the cost of a medical report. It was also ordered to refrain from committing discrimination in the future.
For more information see:
•Asad v. Kinexus Bioinformatics, 2008 BCHRT 293 (B.C. Human Rights Trib.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter that looks at employment law from a business perspective. For more information, visit employmentlawtoday.com.
Ghassan Asad, 38, is a Muslim from Saudi Arabia who began working for Vancouver-based Kinexus Bioinformatics, a company that works on new biological discoveries and disease treatments, in August 2000. In August 2001, Asad received his Canadian citizenship and decided to take a trip to celebrate. He went to several cities including Toronto, Boston, New York and Washington. He showed his co-workers photographs from his trip and wrote about it in the company newsletter.
Co-workers suspicious after attacks
Four days after Asad returned, the terrorist attacks of Sept. 11 took place in New York and Washington. A co-worker became suspicious of Asad because he was a young, Arab male who had been critical of American policies in the Middle East. She suspected he might have gone on his trip to meet the terrorists. She also felt Asad seemed a little too “jovial” on Sept. 11 and made comments to him about the reason for his trip, his political views and his racial background.
The co-worker reported Asad to the RCMP and on Sept. 17, 2001, RCMP officers came to Kinexus and interrogated Asad in a conference room. The next day, he went through two hours of questioning at a police station and after a third brief interview, the RCMP closed the case on him. All of these interviews focused on Asad’s family, friends, political beliefs and activities and involved him disclosing personal details.
Asad was traumatized and unable to sleep or eat, eventually taking nine days of stress leave. He knew a co-worker had reported him and he couldn’t enter the Kinexus building without getting sweaty and starting to shake. His doctor felt he needed more time off, but Asad returned to work because he was worried his career would suffer.
The company’s president and the director of HR knew suspicions were spreading throughout the office but said nothing. The president felt Asad’s reaction was suspicious, since in his opinion “if people have nothing to hide, they are not so shaken up.”
Attitude worsened over time
As months passed, Asad gained responsibilities at Kinexus. However, he often questioned and challenged company policies, complained to co-workers and was argumentative with HR. In October and November 2002, he worked extra hours to fix a server and firewall that had crashed. Asad believed he would be paid overtime for this work, since he was paid for similar emergency projects in 2001. However, Kinexus claimed those circumstances were unusual and were not consistent with company policy, pointing to many other occasions where he wasn’t paid for long hours.
In February 2003, Asad was asked to submit his time sheet for January, which was necessary for financial reports given to investors and the board of directors. Asad refused to do so until he was paid for the overtime.
In early March, the president told Asad to fill in his time sheets or he would be fired. He later received an e-mail saying his refusal was insubordination that could result in his termination. Asad explained his position and said if he received his overtime pay on the next pay date, he would hand in the sheets.
On March 13, the president told Asad his attitude was a problem. His frequent complaining about management and policies, along with his refusal to submit his time sheets, were a breach of the employment agreement, said the president, and he could resign or be fired. Asad refused to resign and filed a human rights complaint, claiming discrimination in his employment and termination.
Suspicions were discriminatory
The tribunal said the issue of a co-worker reporting Asad to police was outside of the workplace, but her comments to him and other Kinexus employees contributed to a poisoned work environment. Management’s lack of action once it became aware of employees’ suspicions and their effect on Asad’s health made it an employment-related problem. The tribunal found Asad’s co-workers and Kinexus discriminated against him in his employment because of his race, religion, place of origin and political belief.
“When he returned to work after nine days of stress leave, Mr. Asad trusted and relied on (Kinexus management) to provide protection and a safe workplace,” the tribunal said. “Instead, they were part of, and contributed to, the dark cloud of suspicion that hung over Mr. Asad at Kinexus.”
However, the tribunal found, from Kinexus’ perspective, Asad had become a problem due to his demands, complaints and defiance of management’s orders. Asad worked at Kinexus for more than one year after Sept. 11 and received a substantial raise, so the tribunal said the decision to terminate him was likely a business one.
But Kinexus was ordered to pay Asad $6,000 for injury to dignity, feelings and self-respect from his employment-related discrimination and $599 for the cost of a medical report. It was also ordered to refrain from committing discrimination in the future.
For more information see:
•Asad v. Kinexus Bioinformatics, 2008 BCHRT 293 (B.C. Human Rights Trib.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter that looks at employment law from a business perspective. For more information, visit employmentlawtoday.com.
