'The employer has the right to performance management, but it has to meet its obligation to do so honestly'
The Alberta Human Rights Tribunal has dismissed discrimination complaints by two workers, ruling that the evidence didn’t establish a link between their protected characteristics and any alleged adverse treatment.
“Fundamentally, the complainant in these cases has the obligation to demonstrate with objective evidence that what happened at work was a function of discrimination as opposed to something else,” says Joseph Oppenheim, a labour and employment lawyer at Carbert Waite in Calgary. “The employer always has the right to performance management, but it has to meet its obligation to do so honestly, in good faith, and not to misuse its power.”
The workers, AS and FJ, are cousins who are originally from Jamaica and identify as Black. AS was hired as a maintenance co-ordinator in September 2012 by Brazeau Seniors Foundation, a not-for-profit organization providing low-income housing for individuals, families, and seniors in various locations in Alberta. FJ was a project manager for Brazeau starting in December 2014.
According to AS, Brazeau’s board chair and chief administrative officer (CAO), conspired to harass him until he quit or they manufactured a reason to terminate his employment, after they learned of a dispute with his landlord and assumed that he was violent and dangerous because he was Black.
Adverse impacts
The adverse impacts alleged by AS included:
- A flawed investigation and wrongful discipline in January 2015, after he exchanged insults with a visitor who backed into his car. A co-worker accused him of being abusive to the visitor, to which the worker responded rudely. The CAO investigated and found the worker was abusive to the visitor and the co-worker, directing him to take 16 hours of anger management classes.
- Five disciplinary letters in 2015 related to the operations manager wanting to know his whereabouts during the workday. AS claimed the organization was trying to create a false impression of him. The operations manager said that the CAO wrote the letters.
- A failure to investigate his allegation that he was mistreated by a visitor in September 2015. The visitor had parked in a no-parking area and, when AS asked him to move, the visitor swore at him and challenged him to a fight. The operations manager spoke to the visitor but later gave AS a letter directing him to “conduct yourself in a manner that de-escalates a situation.”
- GPS installed in his company vehicle. The trackers were installed in all maintenance department vehicles, but the worker said it was to harass and spy on him.
- Improper use of his 2015 performance evaluations – in which he received “competent” and “developmental” ratings - to build a case for termination.
- Downsizing his office and providing a desk and chair that were too small for him. Brazeau reassigned the maintenance employees to a different office and they all could choose a desk and chair. The CAO said that when she learned the desk and chair were too small for AS, she had the furniture changed.
- Abolishing his position on Oct. 27, 2015. The organization said that the number of coaching letters it gave AS over several months, combined with a significant overlap with the operations manager’s responsibilities, led to the decision to abolish AS’s position.
- Hiring a white man with a criminal record to a position that he could have performed. AS was entitled to “bump” into that position and he initially said he would, but Brazeau offered a monetary settlement in lieu of him taking the position and AS accepted. At that point, it hired the new employee, whose criminal record was in the past.
FJ also alleged that he suffered adverse impacts at work. He discovered that he was paid less than some Brazeau employees, many of whom were white, when the operations manager informed him that more than $100,000 had been budgeted for FJ’s project manager position, much more than what he was paid.
He was highly skilled and educated with a university degree, so he believed that it was due to his race or place of origin. He pointed to studies and reports that visible minorities were disadvantaged in the Canadian labour market because of racial discrimination.
The operations manager, however, couldn’t recall when his conversations about the budget occurred and there was no budget document showing a $100,000 salary for the project manager. According to the CAO, salaries were set in the collective agreement for unionized employees and a wage scale for non-union employees. In fact, FJ’s job duties were closer to that of a property manager and his salary was above the industry standard for that role, said Brazeau.
FJ also claimed that the CAO gave him job advertisements for other jobs but didn’t do the same for white employees, limited access to her office, and that Brazeau removed his supervisory duties in early 2015 because AS was his cousin.
AS and FJ both filed human rights complaints alleging that Brazeau discriminated against them on the basis of race, colour, ancestry, place of origin, and family status.
Credibility of witnesses
The tribunal addressed the credibility of AS, FJ, and the witnesses for both parties. AS, it found, was “impacted by his combined role as advocate, complainant, and witness,” often speaking in conclusions and opinions rather than sticking to what happened. FJ was similar, often repeating what AS or the operations manager told him, and the operations manager was evasive and provided contradictory and vague versions of events, said the tribunal.
The tribunal had fewer issues with Brazeau’s witnesses, as they were straightforward and tried to answer exact questions. The CAO even admitted doing certain things that weren’t in her favour, such as forwarding an email comparing AS to a psychopath. As a result, where there were contradictions, the tribunal preferred Brazeau’s evidence.
“When lawyers are prepping witnesses before a hearing like this, we try to hammer home that idea that they must be careful to limit their testimony only to those things that they know are true based on what they have themselves experienced with their own five senses,” says Oppenheim. “As soon as a witness starts veering outside of that, it's a big red flag and the tribunal is going to seriously scrutinize their testimony - it demonstrates a propensity to confuse real evidence with conclusions they have formed through whatever lens they’re viewing things.”
The tribunal found that it was reasonable for Brazeau to investigate the incident with AS and the visitor. AS believed he didn’t do anything wrong, but there was no evidence his protected characteristics were factors in the decision to send the worker to anger management classes, said the tribunal.
Non-discriminatory reasons
The tribunal found the same for the other alleged instances of adverse treatment alleged by AS, as Brazeau was able to show non-discriminatory reasons unrelated to the worker’s protected characteristics.
The tribunal rejected FJ’s claims of unequal pay and discriminatory treatment, noting that FJ’s salary was set in accordance with Brazeau’s wage scale and that any pay differences were due to job classifications. Testimony from senior leadership was more credible than that provided by FJ and his supporting witnesses, including the operations manager, the tribunal said, adding that changes in FJ’s job responsibilities, such as his removal from oversight of maintenance staff, were operational decisions unrelated to his protected characteristics.
“[AS] testified as to all of the reasons why he thought witnesses were coached and why it was a conspiracy, and the tribunal found it was all speculation and conclusions – he wasn’t sticking to what he actually observed,” says Oppenheim. “Meanwhile, [Brazeau] conducted what appeared to be a reasonably fair investigation, gave evidence properly, and didn’t risk being found to have embellished its evidence.”
The tribunal dismissed all of the complaints, concluding that neither AS nor FJ had proven, on a balance of probabilities, that they were subjected to discrimination. While acknowledging broader issues of systemic discrimination in Canadian workplaces, the tribunal determined that the evidence in this case didn’t support the claims related to Brazeau’s workplace.
Awareness of systemic racism
It can be a tricky and sensitive situation when employees have been subjected to systemic racism but there’s a real performance issue in the workplace, according to Oppenheim.
“The employer has to be clear-minded about managing the business on the one hand, but be sensitive and appreciate that there are these other issues going on in the background,” he says. “It doesn't mean you have to give special privileges or treat somebody differently when it comes to performance management, but it doesn't hurt to be aware of these things as you are managing the organization.”
Accordingly, it's good practice to contemporaneously document everything around performance issues and investigations, so whenever there’s a perception of discrimination, it can be addressed with evidence, adds Oppenheim.
“It doesn't need to be the Watergate hearings or using an expensive external workplace investigator, but managers ought to be trained in how to conduct workplace investigations fairly and effectively, and they should be well-documented.”
See Stephen and Julien v. Brazeau Seniors Foundation, 2025 AHRC 10.
