$160,000 discrimination award overturned

No evidence to support finding that GM didn’t sufficiently investigate employee’s complaint of racism: Ontario Court of Appeal

The Ontario Court of Appeal has overturned a lower court’s finding that an Ontario worker was subjected to racial discrimination at his work.

Yohann Johnson began working in the Oshawa, Ont., body shop of General Motors of Canada (GM), as a production supervisor in September 1997. For most of his tenure at GM, Johnson – who was black – had no problems.

In early 2005, Johnson took over responsibility for training group leaders on a new system of policies and guidelines relating to the company’s global manufacturing system (GMS). Many unionized employees didn’t like the training and sometimes skipped their scheduled sessions.

On June 28, 2005, Johnson was scheduled to train a group leader named Alex Markov, but Markov failed to show up for the session. Markov’s supervisor later told Johnson that Markov refused to take the training with him because of an incident several years earlier when Johnson had laughed at a remark by another employee about the death of Markov’s brother, who had been murdered. Markov later agreed to train with another GM employee, who was also a person of colour.

The next day, Johnson trained another group leader who told him that he had learned that if he didn’t want to train on the GMS, all he had to do was claim he was “prejudiced like the last guy whose brother was killed by a black man.” Johnson was shocked by the statement and asked another employee about it. The employee told Johnson he had heard from others that Markov’s brother had been killed by a black man, though he didn’t reveal any specific source.

Employee suspected racism

Johnson assumed Markov had refused to undergo training with him because he was black, so he complained to the plant area manager about racism. He repeated his complaint to other members of management. GM undertook three separate investigations into the matter, and all three concluded there was no evidence of racism in Markov’s actions.

After the first investigation, the employee who had made the statement about getting out of training was asked to apologize and Johnson accepted the apology. Markov was ordered to take the GMS training with Johnson but reached an agreement to avoid it by resigning as a group leader. Johnson accepted this as a resolution of his complaint.

About a month later, in July 2005, Johnson saw Markov working as a group leader. He assumed Markov had been restored to the position and complained. After a meeting and a disciplinary hearing, Markov was suspended for five days for failing to take GMS training with Johnson. Johnson accepted this as a resolution of the matter.

However, Markov appealed and his suspension was rescinded. It turned out he had been filling in for an absent group leader and had not been returned to the position full-time. This didn’t violate the complaint resolution, he argued. Johnson complained to the plant’s personnel director and asked for another investigation. After interviewing several employees including Johnson, the personnel director reached the same conclusion as the earlier investigation: no evidence of racism by Markov.

Still unhappy, Johnson went to the assistant plant manager, who offered on his own to investigate the matter for a third time with GM’s labour relations and human rights representative. Markov was interviewed and he added to his earlier account by saying after Johnson had laughed at the co-worker’s insensitive remark about his brother years earlier, the two had tracked him down again the same day and repeated the remark. The investigation determined that Markov had perceived the remark as a threat and he was still upset by it. Markov’s perception of that incident, regardless of whether it actually happened, led to his refusal, not racism, the investigation concluded.

Employee went on medical leave

Johnson continued to feel upset about the results of the investigations and, after a co-worker allegedly told him Markov had threatened to harm him, began to feel the body shop was a poisoned work environment. He went on medical leave, claiming disability arising from discrimination due to racism in the workplace.

After two years, Johnson was declared fit to return to work, but Johnson said he was unable to work in any plant environment where he could meet up with Markov or the other employee involved in the original incident. GM said there were no training positions available and offered him a supervisory position in two other GM facilities nearby, but Johnson refused, saying he was disabled from working in any GM plant. No medical information was supplied to support his claim. He never returned to work with GM.

Johnson then sued GM for breach of the employment contract and discrimination. The trial judge found GM was liable for constructive dismissal, due to the fact Markov’s reason for skipping his training was “solely racially-based” and his account of the earlier incident regarding comments about his brother was an attempt to justify his behaviour. The trial judge also found GM and some of its employees created a poisoned work environment and the company failed to conduct a comprehensive investigation into Johnson’s racism complaint. GM was ordered to pay almost $160,000, included wrongful dismissal damages, special damages and damages for bad-faith in the course of dismissal.

GM appealed the decision and found a more sympathetic ear with the Ontario Court of Appeal.

The Court of Appeal found it was unreasonable for the trial judge to determine Markov’s account of the earlier incident was questionable because he added details to his account in the third investigation that he hadn’t disclosed before. That wasn’t sufficient to determine Markov had lied throughout, said the appeal court.

The appeal court also noted Markov could have come up with another reason to skip his training if he was lying, he agreed to train with another employee who was a person of colour, and Johnson didn’t directly experience any racist comments or behaviour from Markov. The only basis for his belief Markov was racist was hearsay from another employee who made the statement about Markov’s brother being killed by a black man. In addition, the other employee who made the remark to which Johnson allegedly laughed was white, said the appeal court.

The Court of Appeal found the trial judge’s findings that Markov’s avoidance of GMS training was “solely racially-based” and the body shop was a poisoned work environment due to racism were unreasonable and lacking evidence. Though Johnson may have genuinely believed he was subjected to racism, GM’s actions – three separate investigations – in response to Johnson’s complaint were reasonable and met its duty to properly investigate, said the court. The court also found GM’s offers of alternative positions in other facilities were reasonable, and Johnson’s refusal was a repudiation of the employment agreement, not constructive dismissal by GM.

These offers of continuing employment are inconsistent with the notion that GM was resiling from its employment relationship with Johnson,” said the Court of Appeal. “In fact, GM concluded that Johnson himself had effectively elected to terminate the employment relationship with GM only after Johnson declined to accept the employment positions offered by GM, failed for another two months to return to work, and failed to provide GM with current medical evidence to support his claim of continuing disability.”

The Court of Appeal set aside the trial judge’s award of damages and dismissed Johnson’s action against GM. See General Motors of Canada Ltd. v. Johnson, 2013 CarswellOnt 10496 (Ont. C.A.).

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