Worker opposed workplace mask mandate; expressions of regret too little, too late
An Alberta arbitrator has upheld the dismissal of a worker who contested a workplace mandate and then showed his displeasure by writing a discriminatory message on his mask at work.
Federated Co-operatives Limited (FCL) operates a warehouse facility in Calgary, divided into a food distribution centre and a home and building solutions (HBS) distribution centre. The FCL workforce consists of people from several different countries, cultural backgrounds, and religions, with more than half belonging to visible minorities.
The worker started working at the HBS distribution centre in 2000 in a variety of positions with satisfactory employee assessments. He became a temporary chief shop steward for the union in 2020.
FCL had a discrimination and harassment policy and a code of conduct, both of which were in place for the worker’s entire time with FCL. It also had a diversity policy that stipulated that every employee should feel comfortable coming to work and being themselves.
The company’s discipline policy stated that dismissal would only be used when “all other corrective actions have failed or are not applicable.”
Workplace mask mandate
On July 8, 2020, there was a positive COVID-19 test at FCL’s distribution centre in Edmonton, so the company decided to implement a mandatory mask policy at all of its warehouses. After FCL informed all supervisors, the supervisors spread the word to union representative.
The worker was informed of the mask mandate and the health and safety reasons for it, including the positive test in Edmonton. The worker expressed concerns and objections about the new policy, saying that he was against it. He said the masks were a sensitive issue for many people and employees who had previously declined to wear masks might not feel comfortable about it.
The worker also said that he believed the mask mandate wasn’t necessary, as other safety measures FCL had taken – such as temperature checks upon entry, enhanced sanitization stations, social distancing, and staggered breaks – were sufficient.
In addition, the worker made comments that masks were “an Asian thing” and weren’t common in North America. He said that the mask mandate infringed upon his rights and he was “not a Muslim.”
FCL management said the mandate was for health and safety purposes and had nothing to do with political views, race, religion, or country of origin. Employees were required to wear masks at work or face suspension pending investigation.
Employees were then informed of the mandate and masks were handed out to any employees who weren’t already wearing them. The worker returned to work, but he felt unheard and upset.
HR’s role continues to adapt years after the start of the pandemic.
Worker wrote on mask
The worker took a mask that had been handed out and wrote on it, in uppercase letters, “I AM NOT A MUSLIM.” He wore it for nearly two hours, including through his lunch break, during which time he encountered at least four people.
One co-worker who saw the mask was shocked and told the worker “You better be careful what you’re doing” because the words on it were inappropriate. Another who saw them didn’t say anything, but felt the words were discriminatory. He also overheard other employees talking about it.
The worker’s supervisor saw the mask and cautioned him that the words were unacceptable and wouldn’t be tolerated. However, the worker continued to wear the mask until one of its ear-loops broke. He obtained a new mask and wore it for the rest of the day without doing anything to it.
The worker was reported to management and he was called into a meeting and the worker knew what it was about because the mask was the only thing he had done to violate any policy.
At the meeting, the worker said he believed that masks were “a political and philosophical tool used to subvert the masses” and how other people felt about his mask was beyond his control. Management read FCL’s discrimination and harassment policy to him and informed him that he was suspended pending the investigation.
Different workplaces require different kinds of approaches to mask mandates, according to employment lawyers.
Didn’t appreciate health, discrimination concerns
Later that day, the worker reviewed the policy and realized that his actions were “harmful, hurtful, insensitive, and derogatory to other people. He was later asked what not being a Muslim had to do with wearing a mask, and he said that for him, Muslims covered their faces and at the time he didn’t fully appreciate FCL’s health concerns.
FCL conducted an investigation, including reviewing surveillance video and interviewing people with whom the worker had interacted. At a second meeting, the worker expressed regret for his conduct and called it “a moment of poor judgment and immaturity… that could have been interpreted [by] others as hurtful.” He acknowledged that he had had training on the respectful workplace policy but the threat of suspension to enforce the mask mandate removed his freedom of choice.
The worker went on vacation and, when he returned on Aug. 6, FCL terminated his employment for breaching company policies of which he had been aware and his “hurtful and deliberate conduct.” The worker was provided with a copy of the investigation report and a termination letter.
The union grieved the dismissal as excessive and lesser discipline was appropriate for an isolated incident by a worker with long record of good service. The worker acknowledged that the words he used could have been taken as discriminatory to other employees and not inclusive based on race and religion, and he wanted a chance to correct his actions.
The arbitrator noted that there was no question that discipline was warranted, as the worker deliberately violated FCL discrimination policy and code of conduct.
An employee’s personal preferences are not protected by human rights legislation, says an employment lawyer.
Misconduct contrary to diversity policies
The arbitrator found that the worker’s misconduct consisted of “a series of acts within a single workday” rather than a pattern of discriminatory acts, although it was in the face of multiple warnings from FCL and co-workers. The misconduct also was contrary to FCL’s measures to support diversity in the workplace and policies.
The arbitrator believed that the worker expressed a sincerely held point of view about masks, but he intentionally chose to express them on the basis of personal characteristics protected by the Alberta Human Rights Act and FCL policies without any consideration of the impact on others in the workplace – in fact, he stated at the time that he wasn’t in control of how others might feel about it. He also continued to express his objections to the mandate despite being warned that the consequences would lead to suspension pending investigation, said the arbitrator.
The Canadian Labour Congress made several recommendations for employers to address Islamophobia in the workplace in a 2019 report.
Worker knew what he was doing
The arbitrator found it was not credible that the worker only understood the discriminatory nature of his actions after reviewing the discrimination and harassment policy following his suspension, that and other policies had been in place for the entirety of his 20 years with FCL.
“I am persuaded that what he said and how he conducted himself expressed his discriminatory views in the workplace knowingly and without regard for FCL’s policies and values and without regard to the impact of his expressed views might have on his co-workers,” said the arbitrator.
The arbitrator also considered that: the worker didn’t remove his mask in response to warnings and cautions but only when it broke; he argued a scientifically established safety measure; he was aware the words on his mask violated the discrimination and harassment policy; and he knew the words on his mask went “well beyond” being a statement of fact within the context of the code of conduct and policies.
The arbitrator determined that the worker’s intentional misconduct, repeated declarations about Muslims, Asians, and his belief of what the mask mandate represented outweighed his history of service without prior discipline. Despite the worker’s later claims that he had gained insight into his misconduct, the arbitrator was not confident that the worker’s discriminatory acts of misconduct would not be repeated if he was reinstated.
The arbitrator concluded that discharge was not excessive or unwarranted upheld the worker’s dismissal. See Federated Co-operatives Limited v. Miscellaneous Employees, Teamsters Local Union No. 987 of Alberta, 2022 CanLII 78226.
