Increasingly, employers have strengthened their policies regarding workplace violence, discrimination and harassment. Those policies do not just affect issues between an individual in a supervisory position and an employee, but also employee to employee relations. As diversity and inclusion are becoming more and more important at the workplace, employers are also taking stances against the use of racial or ethnic insults, as in the next case. This case demonstrates that the use of racial slurs could justify the termination of one’s employment.
Employee’s Behaviour Captured on Camera
In the case at hand, a verbal altercation occurred between the former employee, the grievor, and another employee. The grievor was apparently angry that the other employee had stopped the conveyor lines. The grievor was white, and was alleged to have uttered racial slurs toward his co-worker, who was a Black man, during the altercation. The majority of the altercation between the grievor and the employee was recorded by surveillance cameras.
The employer was a clothing manufacturer, who has a distribution centre in Ontario. The workers at the distribution centre are unionized. The employer’s customer service centre manager confirmed that the company recognizes the racial and ethnic diversity of its workers. The employer also provides instruction on its expectations around the general topic of “respect and sensitivity” by all employees in their interactions with each other. These policies included a prohibition regarding harassment and violence in the workplace.
Specifically, the company has prohibited sexual and racial discrimination, bullying and offensive language, such as racial insults. The company had emphasized these instructions and prohibitions with three-hour training courses provided to employees. The workers also received an annual refresher on these policies. There was also the promulgation of a written policy entitled, ‘Violence and Harassment in the Workplace”. The employer’s policies aligned with provincial human rights and occupational health and safety legislation concerning workplace violence/harassment.
As a result of this incident, the grievor was terminated. In a termination letter issued to the grievor, the employer concluded that the grievor had violated its policy on “Violence and Harassment in the Workplace”. The employee and his union brought a grievance against the employer for wrongful dismissal.
Witnesses Corroborate Employee’s Account
During the hearing, there was testimony from the employee, the grievor and several employee witnesses. These witnesses had heard or seen portions of the altercation between the employee and the grievor. The employer also submitted the digital surveillance video that recorded the relevant events.
Termination was a Reasonable Disciplinary Response
The arbitrator in this decision found that the grievor had directed racial slurs towards his coworker. Accordingly, the arbitrator concluded that the grievor’s termination was within the range of reasonable disciplinary responses in the circumstances of this case. The arbitrator also found that the employee’s claims of having been subjected to racial slurs by the grievor must be favoured over the grievor’s denials.
One witness testified that, after the employee had shut down the conveyer belt, the grievor repeatedly uttered a curse word. Another witness testified that the grievor was “in a rage” as he proceeded to either pull the cord or push the green buttons required to restart the conveyor belts. This testimony was in harmony with the undisputed facts described by other witnesses and the surveillance record. The grievor’s demonstrable “rage” was also clear from the surveillance recording that showed him aggressively moving into the employee’s personal space.
The arbitrator found that, even if the grievor had a legitimate complaint, it did not entitle him to verbally berate the employee. The grievor’s conduct in doing so was seen as an effort to exert his personal dominance over a worker through intimidation. This satisfied the definition of “workplace bullying” under the employer’s Violence and Harassment in the Workplace policy that expressly prohibited such behaviour at the workplace.
The arbitrator further found that there was progress towards the societal goal of eliminating all forms of harassment in the workplace. This was consistent, but not limited, by the recent amendments of the Ontario Health and Safety Act.
The arbitrator concluded that it was now appropriate to regard any use of demeaning racial or ethnic slurs by one employee to another as very serious misconduct. This type of conduct fell within the category of workplace offences that justified terminating the employment relationship, amongst the appropriate disciplinary measures as part of the “corrective action”, that the workplace was obliged to consider in response to workplace harassment, because of the hurtful nature of such conduct that undermines the smooth running of a diversified workforce.
The take-away from this case is that many workplaces are strengthening their anti-harassment and anti-bullying policies. Accordingly, the workplace is evolving to a place where violence and harassment are not tolerated.
For advice on employer liability and other employment or labour law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.
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