Race played a role in firing: court

Human rights tribunal said firing of black worker who was called ‘Kunta’ was not racially motivated, but Ontario court begs to differ

A black worker who was subjected to racial slurs and fired was awarded more than $25,000 in lost wages by the Ontario Superior Court of Justice.

The court overturned an earlier decision by the Ontario Human Rights Tribunal that said race was not a factor in the worker’s dismissal. It said the tribunal was clearly wrong in coming to that conclusion.

Mark Smith started working for Mr. Lube in August 1992 in a junior position. In August 1993 he was promoted to supervisor, a position he held until his termination in December 1995.

Smith’s relationship with his supervisor, Rob Neal, was tainted by Neal’s racist attitudes, the court said.

Neal once called Smith “Kunta”, a slave name meaning an African man who was kidnapped and brought to the United States as a slave, as depicted in the movie Roots. Interestingly, Smith was threatened with dismissal for the way he reacted to being called “Kunta.”

On another occasion a white employee challenged Smith’s authority by saying that, “200 years ago, we would have told him what to do.” The white employee was either dismissed or fired from that Mr. Lube location, but was hired at another location three weeks later.

The court said the circumstances surrounding Smith’s termination were “clearly suspect.”

Smith allegedly refused to assist a junior employee in servicing a customer. But he was given no opportunity to tell his side of the story to management.

On Aug. 4, 1995, Smith was told he was being laid off due to a lack of work. A few weeks later, a white employee was transferred from another location to replace Smith. On Nov. 6, 1995, Smith received a termination letter citing his performance from June 20, 1995, to Aug. 4, 1995, as grounds for the termination.

The fact the employer changed its reasons for letting Smith go, the quick replacement of his position and the delay in providing a termination letter were all factors that warranted close scrutiny, the court said.

In its decision, the human rights tribunal said the fact the employer hired Smith, were impressed by him, promoted him and accommodated his school schedule were all factors that pointed to race not being a reason for the dismissal.

But the court pointed out the folly of the tribunal’s thinking — that intention to discriminate isn’t necessary to prove discrimination. Motivation or knowledge of the discrimination is not an issue, only the effect of the discrimination on the worker matters.

The fact Smith was working in a racially poisoned work environment meant that his dismissal must be scrutinized carefully. With this in mind, the court said it had no doubt race played a role in his termination.

It awarded Smith compensation for lost income in the amount of $25,131.35.

The court also ordered the employer to institute a workplace anti-harassment policy. The human rights tribunal heard testimony from Dr. Ralph Agard, a recognized expert, who said that while punitive damages weren’t necessary, the employer needed professional guidance to institute a formal complaint process with emphasis on the education of management.

Presumably because the tribunal did not think this was a serious case of racism, it ignored Dr. Agard’s recommendations. But the court didn’t.

It ordered the employer to implement the parts of his recommendations relating to the implementation of a workplace anti-harassment policy, staff training, implementation of an internal complaint process and education of management, all subject to the supervision of the Ontario Human Rights Commission.

For more information see:

Smith v. Mardana Ltd., 2005 CarswellOnt 401, 38 C.C.E.L. (3d) 135 (Ont. S.C.J.)

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