Employer had non-discriminatory reason; no link between firing and discriminatory grounds
The firing of a worker was for safety violations and dishonesty during the investigation, not the worker’s ancestry or illness for which she called in sick shortly after the investigation, the Alberta Human Rights Tribunal has ruled.
The worker was an apprentice electrician for Fluor Constructors Canada, a heavy industrial construction services company based in Calgary. She started employment with Fluor in September 2020.
The worker received training related to spotting, which she was frequently tasked with as an apprentice. She soon received a verbal warning about not being present to properly complete her spotting work. This was followed up with a written protocol about spotting that informed the worker that violations of the spotting policies would result in an investigation and could result in suspension or termination.
The worker was of Asian descent and, according to her, on Nov. 18, the site superintendent at the worksite where she was working asked her if she came from China or if she had relatives in China because “people were dying from COVID-19 and COVID-19 originated in China.”
On the same day, the worker was assigned to do spotting. There was an incident involving the movement of equipment and another electrician had to step in to prevent machinery and material from colliding. Fluor investigated and another employee reported that the worker had been in a work area where work wasn’t being performed at the time of the incident.
Called in sick
The worker was interviewed and provided what Fluor believed were false statements.
On Nov. 20, the worker called in sick to work because she was experiencing symptoms associated with COVID-19. Fluor started to make arrangements for her to take a test, but the worker scheduled her own. She later learned that she did not have the virus.
However, on Nov. 23, the site superintendent called her and told her that her employment was terminated. No reason was given. A week later, she wrote to the company asking for an explanation for her termination, but Fluor didn’t respond. She also wrote to the union asking them to contact the company about the termination, outlining her illness and the COVID-19 test. She didn’t mention anything about the superintendent’s remarks about her ethnicity.
The union also didn’t respond, so she filed a complaint with the Alberta Labour Relations Board claiming unfair representation. The board later provided her with the termination notice from Fluor dated Nov. 19 that indicated she had been dismissed for misconduct involving her leaving her work area without authorization and providing a false statement during an investigation. This was the first she had learned of these reasons.
The union responded with a settlement offer, which the worker accepted and signed on Dec. 16.
Discrimination complaint
The worker then filed a human rights complaint against Fluor alleging discrimination on the grounds of ancestry, place of origin, race, and physical disability stemming from the supervisor’s comments and her dismissal, which she said was because the company believed she would spread COVID-19 to other employees.
Fluor denied that the site superintendent made the alleged comments and said that the only reason it terminated the worker’s employment was a serious safety violation – her second in three months - and her false statements during the investigation into the matter.
The tribunal accepted that the superintendent made the comment to the worker. However, it noted that “a single comment, alone, does not automatically constitute discrimination,” particularly if it isn’t on its face “egregious or vitriolic.”
There was no evidence that this single comment created a poisoned work environment – the worker didn’t mention it to the union when inquiring about her dismissal - so the tribunal found that the worker’s allegation that it was discriminatory had no reasonable prospect of success.
The tribunal also found that there was no evidence, circumstantial or direct, that indicated the worker’s ancestry had anything to do with her termination or the manner of termination.
As for the worker’s perceived physical disability related to her illness, the worker called in sick on Nov. 20, 2020. Her letter of termination was drawn up on Nov. 19, but Fluor wasn’t able to inform her until Nov. 23 when it was able to contact her.
It was clear that the termination decision wasn’t influenced by the worker’s illness, and the safety violations and investigation provided a logical, non-discriminatory reason for termination, said the tribunal.
The tribunal determined that there was no connection between the worker’s physical disability or ancestry and her termination. The complaint was dismissed. See Cheong v. Fluor Constructors Canada Ltd., 2024 AHRC 52.
