An Alberta labour arbitrator recently upheld the termination of a 20-year employee after he expressed anti-Asian and Islamophobic views in response to his employer's COVID-19 mandatory mask policy.
Aaron Evans (the "Grievor") was a shipper employed by Federated Co-operatives Limited (the "Employer") at one of its distribution centres. He also acted as the Temporary Chief Shop Steward for his union, Teamsters Local Union No. 987 (the "Union").
On July 8, 2020, the Employer implemented a mandatory mask policy, requiring all those working within its distribution centres to wear masks at all times while indoors, subject to human rights-related exemptions. The Union didn't challenge the reasonableness of implementing the mask policy itself, but rather the Employer's decision to terminate the Grievor for just cause due to his response to the mask policy.
Since the Grievor was the Temporary Chief Shop Steward, he was advised of the Employer's decision to implement the mask policy in a private meeting (the "Heads-up Meeting") shortly before the mask policy was announced to the entire distribution centre. In that meeting he stated that he believed masks were "an Asian thing," that he was shocked to see people in western civilizations wearing masks and that the mask policy infringed upon his rights. The Employer's leaders in the meeting told him the mask policy had nothing to do with an individual's personal characteristics or ideologies, and reinforced the health and safety rationale for the mask policy.
Later that day, after the mask policy went into effect, the Grievor took a black marker and wrote "I AM NOT A MUSLIM" on the front of his mask in capital letters, and proceeded to wear the mask around the distribution centre for approximately one hour and forty-five minutes. During this time two other employees told the Grievor that the mask was inappropriate, but the Grievor continued to wear it. Shortly thereafter, the Grievor's conduct was reported to management.
During the Employer's subsequent investigation, the Grievor justified the words on his mask stating it was simply "a statement of fact." When asked about his conduct that day, the Grievor stated that he believed masks were a "political and philosophical tool used to subvert the masses" and that his personal liberty and freedoms were infringed by the mask policy. He stated that those who "hold dear western values" are opposed to such requirements and that there was a larger societal pressure to "change our culture." Following a thorough investigation, the Employer subsequently terminated the Grievor's employment for cause.
The Arbitration Decision
The Union grieved the termination, seeking reinstatement of the Grievor with back pay. The Employer argued that termination was appropriate in the circumstances, especially in light of the Employer's commitment and legal obligation to provide a harassment and discrimination-free workplace, and due to the general increase in discriminatory incidents toward visible minority groups since the start of the COVID-19 pandemic in society at large.
The Arbitrator agreed with the Employer and dismissed the grievance.
The Arbitrator noted that when the Grievor initially raised his objections to the mask policy at the Heads-up Meeting, the Grievor was quickly admonished for his objections based on racial, religious and/or ethnic considerations. During the Heads-up Meeting the Employer attempted to re-focus the Grievor from his discriminatory considerations, back to the health and safety considerations.
The Arbitrator stated that the Grievor's "decision to declare that I AM NOT A MUSLIM on the mask and wear it throughout the warehouse for one hour and forty-five minutes was a deliberate, intentional, defiant and offensive act of misconduct." The Arbitrator agreed with the Employer that the social context within which this misconduct took place was important, noting that "the surrounding circumstances include the fact of an unprecedented global pandemic and the rising acts of discrimination, harassment and violence against identified visible minorities, including those of Asian descent and those of the Muslim faith."
The Arbitrator found it was relevant that the Employer had a diverse workforce, had fostered a safe and inclusive workplace through its initiatives and training, and had a discrimination and harassment-prevention policy in effect over the Grievor's entire 20-year career
The Arbitrator concluded that the Grievor expressed his sincerely held points of view which were entirely at odds with the Employer's discrimination and harassment policies and the Employer's commitment to fostering workplace diversity and inclusion. Therefore, the reinstatement of the Grievor was not appropriate in the circumstances, and the grievance was dismissed.
Key Takeaways for Employers
This decision serves as a good reminder to employers of the importance of having effective and well-implemented programs and policies to prohibit workplace harassment and discrimination, and foster a sense of diversity and inclusion. In this case, the employer had a long standing commitment and made ongoing efforts to create, update and implement its policies and reminded leaders and employees of the policies on a regular basis.
In addition to informing employees and supervisors of policies and programs, employers should also train all workers on how to recognize discrimination and harassment in the workplace and how to appropriately intervene in a timely manner when they witness such conduct. In this decision, the fact that the Employer's leaders, as well as the Grievor's fellow employees, were able to quickly recognize the Grievor's inappropriate conduct and alerted him to the fact that it was inappropriate, was a factor that worked in favour of having this grievance dismissed.
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