'Multifaceted approach with a lesser penalty and training' might have been more effective: lawyer
“While there are definitely circumstances in which dismissal is the right move, I just think it’s not always the correct answer [for racial harassment] – which is often to own it as an employer and use it as an opportunity to face this issue head-on.”
So says Sharaf Sultan, principal of Sultan Lawyers in Toronto, after an Ontario arbitrator ordered an employer to reinstate a worker who was fired for making discriminatory comments to a racialized colleague.
Sultan thinks sometimes employers need to do more to directly address racial discrimination in the workplace rather than just fire someone and sweep it under the rug.
“Look at alternatives to dismissal, because it may do nothing to the workplace,” he says. “It’s probably more effective to look for opportunities to invite important discussions, make people realize there are deeper reasons why these things are not appropriate, and use it as an opportunity for the workplace to be meaningfully rid of this.”
The 63-year-old worker was employed as a procedure writer for Ontario Power Generation (OPG) at its Western Waste Management facility near Tiverton, Ont. OPG first hired her in 2004.
In early January 2022, the worker was temporarily elevated into a frontline supervisor role and was supervising a new colleague.
Indigenous colleague
During the colleague’s first week, the worker had a conversation with her in the workplace cafeteria. The colleague shared that she was a citizen of the Métis Nation of Ontario and that her spouse was First Nations. According to the colleague, the worker said that she should “play the Indian card” to obtain a permanent position with OPG.
According to the worker, she had intended to inform the colleague that OPG had equity, diversity, and inclusion initiatives to hire more racialized and Indigenous employees, not to offend anyone.
Later in that same conversation, the worker discussed OPG’s Deep Geologic Repository (DGR), a proposed project to store nuclear waste that had been shelved because the local Indigenous community voted against it. She said that OPG had “spent a lot of money courting the Métis Nation” for the project.
Colleague upset by comments
This comment made the colleague feel awkward since she was getting work direction from the worker. The colleague tacitly agreed but after she went home, she was upset because she felt that the worker had “thrown her Nation under the bus.”
In early February, the worker was in the cafeteria again with the colleague when a TV announcement about Black history month came on. The worker said, “Why don’t we get a white history month?” and the colleague left without saying anything.
Two days later, the worker asked the same question around other employees. According to the colleague, this time the worker looked at her directly and said, “I’m not prejudiced.”
The colleague was upset over these comments and tried to work remotely as much as possible to avoid contact with the worker. She filed an internal human rights complaint on March 9 alleging harassment on the basis of ancestry.
The worker said that she had no idea that she had offended the colleague and she was “deeply offended” by the complaint. She said that she had thought that she was talking to a friend and she wished that the colleague had spoken to her directly instead of filing a complaint.
Workplace harassment is more than just incivility, says an employment lawyer.
Internal investigation
An internal investigator interviewed the worker and the colleague. The worker said her actual question had been “What about white lives matter?” and acknowledged making the “Indian card” comment. She said that she didn’t see anything wrong with her comments and the “white history/white lives” comment was meant to ask why one group was favoured over another.
The investigator concluded that the “Indian card” comment constituted harassment on the basis of race, ancestry and/or place of origin. However, comments about the Métis Nation and “white lives” were not harassment, although they contravened OPG’s code of business conduct.
OPG conducted a disciplinary review and the worker acknowledged that her “Indian card” comment was out of line and said that she wanted to apologize.
OPG terminated the worker’s employment on May 18 for human rights-based harassment from the “Indian card” comment and violating the code of business conduct by creating a poisoned work environment from the “white lives” comments. Two days later, the worker sent a written apology.
The union filed a grievance, arguing that OPG should have educated the worker, not terminated her.
The federal government signed an international treaty against workplace harassment and violence.
Objectively offensive
The arbitrator found that the worker’s suggestion that her colleague “play the Indian card” to get a permanent position was “insulting and offensive.” Even though the worker was genuinely trying to suggest that the colleague use OPG diversity initiatives, the comment was objectively offensive on the basis of race and ancestry – which the worker should have known through training on Indigenous relations and the code of business conduct, said the arbitrator in finding this comment was deserving of discipline.
The “Indian card” comment was more serious because it was indicative of a purposeful, pre-existing prejudice, says Sultan.
“According to the arbitrator, it was indicative of a blatant assumption of discrimination and intolerance, whereas the [DGR-related comment] was more an opinion based on legitimate concerns but not necessarily indicative of a prejudice,” he says.
The arbitrator agreed with the investigator that comment about the Métis Nation was not disparaging or inflammatory, as was about worker’s opinion about the vote for the DGR. Disagreeing or criticizing the decisions of a community that happened to be Indigenous was not the same as disparaging them on the basis of their Indigeneity, the arbitrator said in finding no cause for discipline.
As for the “white history month” comments, the arbitrator found that two comments a couple of days apart could not be construed as a course of comment or conduct that could create a poisoned work environment or workplace harassment as defined in the Ontario Occupational Health and Safety Act. There was also no evidence that the two comments were directed against the colleague, even though the worker looked at the colleague and said that she wasn’t prejudiced, said the arbitrator.
A Saskatchewan court dismissed a worker’s claim of racial discrimination due to an absence of any evidence.
‘White history’ comment not as serious: arbitrator
The arbitrator accepted that the worker was trying to convey her belief that no one should be treated differently based on race, but the comments about “white history month” were “provocative and careless.” They weren’t serious enough to warrant discipline, but a non-disciplinary letter of expectation would have been appropriate, said the arbitrator.
The arbitrator’s decision around the “white history month” comment was curious, says Sultan.
“Prejudice is often difficult to capture because most people don’t tend to be overt about it, so when you see something like this, it should be treated more seriously, in my opinion,” he says. “It does make one question how she treated her colleagues in the past.”
The arbitrator determined that discharge for the “Indian card” comment was out of proportion with the misconduct, particularly given the worker’s 18 years of service with no disciplinary record and the fact that she said that she felt badly and provided a written apology.
Social movements such as Black Lives Matter are putting employers under pressure to handle workplace human rights issues, according to an employment lawyer.
One-day suspension
OPG was ordered to reinstate the worker with a one-day suspension on her record, with the condition that she participate in Indigenous-focused sensitivity training.
“Perhaps dismissal was excessive, given 18 years of service and no discipline, but I think it was too narrowly interpreted and didn’t take into account the sensitivities of the issues at hand,” says Sultan. “It’s bad enough there was a lot of ignorance about Aboriginal issues, and then she was referencing Black history month – she clearly has issues with minorities in general.”
OPG took the matter seriously and was clearly unhappy about it, but by resorting to dismissal it may have inadvertently opened the door for the arbitrator to pull back all the way to a one-day suspension, says Sultan.
“What they could have done better, given the worker’s 18 years of service, was to have taken a more comprehensive approach and make it a teaching moment,” he says. “Sometimes employers may feel it’s better to dismiss and get rid of the problem because they are probably – and rightfully - concerned how it would reflect on them to continue to employ someone because of how they behaved.”
“It would have been harder to overturn if they’d taken multifaceted approach with a lesser penalty and training, make her go through a program and face her issues,” adds Sultan. “The approach of getting rid of the problem opened the door for the arbitrator to say it was too much and substitute something less effective.”
See Ontario Power Generation and Power Workers’ Union, 2023 CanLII 30400.
