Worker considered vulgar and racial texts to be friendly banter, but co-worker complained to management
This edition of You Make the Call involves an employee who was fired after sending racist texts to a co-worker.
The employee was an equipment operator for Evraz North America, a manufacturer of pipes and related products in Calgary, hired in June 2012. The employee worked at one of two facilities in Calgary — sometimes with a co-worker with whom he was roommates for a period of time.
There were some issues between the two, so the co-worker decided to move out in February 2014. The day the co-worker moved out, he worked a night shift when the employee wasn’t working, so they didn’t see each other. Early in the shift, the employee sent a text to the co-worker and they exchanged a few texts. The co-worker asked the employee for $20 that the employee owed him. The employee later responded with a vulgar comment and a racist slur. Later, the employee sent another text to the co-worker saying “Hahah you’re a toothless broke ass n-----.”
The co-worker didn’t like the language used in the texts and showed them to a supervisor. The supervisor brought it to the attention of the general manager in mid-March, who felt the texts violated the company’s anti-harassment policy. The policy forbade discrimination based on many things including race. All employees had been shown the policy in safety meetings and the employee had signed a sheet stating he had attended a meeting in which the policy had been reviewed.
The general manager discussed the texts with the employee, who said the texts contained slang he sometimes used with his co-worker. The employee explained they had been roommates and socialized together, and he thought the co-worker would be comfortable with the words in the texts.
At an investigation meeting, the employee acknowledged the texts were “rude” but were supposed to be a joke and it was nothing more than "shop talk" between them. He claimed he used the racial slur frequently to describe the co-worker — who was black and the employee was white — and didn’t think the co-worker would be offended. He also said he was drunk when he sent the texts and the $20 was money he had lent the co-worker to buy marijuana.
The employee apologized to the general manager when he realized it looked bad, but didn’t apologize to the co-worker because he thought it would be better to “let things be, rather than escalate the issue.” His union representative also told him he probably shouldn’t contact the co-worker. The co-worker later stated that it would be “ridiculous” to have to work with the employee again.
Evraz management determined the employee’s texts were “deplorable,” amounted to discrimination under human rights legislation, and constituted just cause for dismissal.
You Make the Call
Was there just cause for dismissal?
Should lesser discipline have been given?
If you said the employee deserved lesser discipline, you’re right. The arbitrator agreed the language of the texts was “deplorable” and were part of an exchange initiated by the employee. The arbitrator found the two were more than simply co-workers, however, because they were roommates for a time. Though the co-worker said they weren’t close, the employee claimed they were buddies and hung out together. The social aspect of their relationship should be factored into analysis of the texts, said the arbitrator.
The arbitrator found the language used in the text was meant to be in the context of banter between friends that was not to be viewed by others. Though there may have been some tension due to the $20 debt, there was no indication there was serious conflict between the employee and the co-worker, said the arbitrator.
“I accept the (employee’s) testimony that he considered the offensive words to be good-natured slang between friends,” said the arbitrator. “This is ignorance, not malice.”
However, the arbitrator also found that despite the comments not being racially motivated, they were inappropriate when viewed objectively, could be expected to create offence and constituted racial harassment — which warranted discipline.
Though the employee didn’t apologize to the co-worker, he had reasons for not doing so on the advice of a union representative. In the investigation meeting, the employee acknowledged the texts were rude and disrespectful and apologized to the company. Even though the co-worker said he couldn’t work with the employee again, Evraz had other staffing options in which the two didn’t have to work together — such as two different facilities and multiple shifts.
Evraz was ordered to reinstate the employee with a lengthy suspension instead. The time since the employee’s dismissal — 12 months — was to serve as the suspension, so no compensation for the dismissal was awarded.
For more information see:• Evraz North America and USW, Local 6034 (Langan), Re, 2015 CarswellAlta 1332 (Alta. Arb.).