'It was clear that the people who received the comments or witnessed them didn’t appreciate them'
“Where comments or actions have the impact of creating a negative, unpleasant, and disrespectful work environment, then that warrants a response by the employer, whether it's discipline or ultimately termination.”
So says Alex Norris, a labour and employment lawyer at Carbert Waite in Calgary, after an Alberta arbitrator dismissed grievances challenging the termination of a worker for racist behavior, workplace threats, and violations of company policy.
Inland Concrete is a producer and supplier of cement, ready mix concrete, aggregate, and asphalt for construction and industrial use, operating three concrete batch plants in Edmonton. The worker was a driver for Inland starting in 2018. The concrete manufacturing industry is seasonal, so the worker was employed on a seasonal basis. He was usually laid off in October or November and recalled in April.
Each time the worker was recalled, he attended a “start-up meeting” where Inland’s policies and procedures were reviewed to ensure he and other employees understood the company’s expectations. Inland’s Respect in the Workplace policy was always included in the review. The worker signed off that he completed the orientation and policy review, including at the start of the 2022 season.
The Respect in the Workplace policy stated that employees who violated the policy would “be subject to discipline up to and including termination.” The policy defined harassment as “any inappropriate conduct or comment by a person(s) towards another person(s) where the person making the comment or demonstrating the conduct knew or ought to have known would cause that person to be humiliated or intimidated.” The policy included examples of what could constitute harassment or bullying, such as unwelcome remarks, jokes, innuendos, insulting gestures, taunts causing embarrassment or offense, and actual or threatened physical assault.
In addition to the start-up meetings, the company communicated the policy to employees in toolbox talks and on bulletin boards.
Harassment complaint
On June 20, 2022, a mixer driver – who was a person of colour - filed a written complaint alleging that the worker had made racially offensive and discriminatory statements to him. According to the mixer driver, the worker joined a conversation with other employees and said, “I hate Blacks, I’m racist white power” while lifting his arm in a white power salute.
One week later, Inland decided to suspend the worker while it investigated. At the meeting to advise the worker of his suspension, the worker asked if it was a sexual harassment allegation or related to a comment he made to a co-worker about “paki pizza” – which he claimed was a common word used to describe Punjabi-style pizza and wasn’t offensive – but he later denied making the comment.
The worker then said, “I feel like I should go to the trunk of my car and get something and come back and go postal.”
The company’s internal investigator added the “paki pizza” and “postal” comments to the allegations. As other employees were interviewed, the investigation uncovered additional allegations of misconduct, such as hateful remarks, threatening to stab a co-worker during a strike if he didn’t vote the way the worker wanted him to, name calling, “white power” gestures, and sending inappropriate pictures online.
The other employees who witnessed the “white power” comment and gesture agreed that he said it and they didn’t think he was joking. They also agreed that the workplace was diverse and that type of comment wasn’t common.
The worker was interviewed and he denied saying anything racist. The interviewer observed that he seemed evasive and he referred to being bullied and persecuted at the workplace for his appearance and lifestyle as a bodybuilder. He also said one of the other employees present for his alleged comment was “out to get him.” He acknowledged being aware of the policy, but later testified that he was a victim of a “witch hunt” organized by the same co-worker.
Worker denied making intentional threat
The worker admitted to making the “going postal” comment during the suspension meeting and explained that he was feeling frustrated about not getting more information about the allegations. He said he had been emotional and would apologize, as he hadn’t meant it to be a threat.
“It seems that once [Inland] was made aware of the complaint by one of its employees, it moved reasonably quickly to take next steps,” says Norris. “Their first step was to place the worker on a suspension, and then they moved forward with an investigation that was conducted internally.”
Investigations need to be done reasonably and appropriately, but they also should be flexible, according to Norris.
“[The worker] made some additional concerning comments in the suspension meeting, so it was appropriate for the company to take note of those comments and add them to the investigator’s mandate,” she says. “And as the investigation proceeded, additional issues arose that the investigator determined warranted further investigation, so it was appropriate to broaden the mandate of the investigation to all relevant allegations involving the worker in the workplace.”
After interviews with the worker and other employees, Inland determined that six of seven allegations were substantiated. On Aug. 19, the company terminated his employment for breaching the policy and code of conduct.
Termination excessive: union
The union grieved, arguing that the termination was excessive and mitigating factors, such as the worker’s clean disciplinary record over four years – he only had one verbal warning on file - and a workplace culture of "shop talk" should have been considered. The union also argued that none of the co-workers indicated that they were afraid of the worker, while questioning the credibility of the evidence and the fairness of the investigation.
The arbitrator found that all the witnesses were consistent and credible, both in the investigation interviews and in their testimony, while the worker was evasive and inconsistent – for example, his claim that he was persecuted and the others were out to get him. The evidence supported that the worker made the racist comment and gesture to the Black co-worker and made the “postal” comment in the investigation interview, said the arbitrator.
For the same reasons, the arbitrator also accepted that the other allegations of hateful remarks, threats of violence, “white power” gestures, and sending inappropriate pictures online were substantiated. Such behaviour was egregious and unacceptable in a modern, inclusive workplace, and the threats impacted co-workers’ sense of safety, the arbitrator said.
The intention of a perpetrator isn’t relevant in an investigation into workplace bullying and harassment - the focus is on the impact on others, according to Norris.
“There could be a workplace where everyone jokes with each other and no one ever takes any offense to certain comments - in that circumstance, it may be open to an investigator or an employer to conclude that there was no negative impact on the workplace,” she says. “But here, the comments and actions were deeply racially insensitive and inappropriate, and the union’s suggestion that this was shop talk didn't really hold water - it was clear that the people who received the comments or witnessed them didn’t appreciate them, they were offended or uncomfortable.”
The arbitrator also found that Inland’s investigation was thorough, timely, and fair.
Violation of policies
The arbitrator determined that the worker’s conduct was a clear violation of workplace policies on harassment, violence, and respect and termination was the appropriate response given the seriousness of the misconduct, the lack of mitigating factors, and the worker’s failure to demonstrate accountability or remorse.
There were several factors considered in determining that termination was appropriate and having clear policies that employers were regularly reminded of was a big one, says Norris.
“Policies are important to clearly communicate an organization's expectations to its employees,” she says. “And then reminding employees of the expectations and obligations under the policies - Inland could point to [the refresher training] and say that its expectations were clearly known.”
Noting that employers have a statutory duty to uphold safe and inclusive work environments, with little tolerance for racial misconduct or workplace threats, the arbitrator denied the grievances.
“This is a pretty thorough roadmap for employers about what to do when there are serious allegations of misconduct in the workplace,” says Norris. “If Inland hadn’t taken all of those steps – a timely and thorough investigation, thoughtful consideration of the investigation’s findings and whether termination was warranted - I think it might have had a harder time justifying its position to terminate for cause, but it was able to stand by its decision and have it be upheld when challenged.”
