An Alberta arbitrator recently upheld an employer's
disciplinary termination of a long-term employee in Alberta
Federated Co-operatives Limited v. Miscellaneous Employees,
Teamsters Local Union No. 987 of Alberta, 2022 CanLII 78226 (AB GAA).
The grievor, Aaron Evans, was an employee of Federated
Co-operatives Limited (FCL) with 20 years of service. Evans worked
in the shipping department at the company's building solutions
distribution center in Calgary.
In response to the COVID-19 pandemic, FCL introduced a number of
health and safety measures, including a mandatory mask policy. As
part of his role as temporary Chief Shop Steward, Evans attended a
meeting with his superiors and was informed of the new policy,
effectively immediately. At the meeting, Evans objected to the
policy and expressed various ideological and ethnocentric views. In
particular, he suggested that "masks were 'an Asian
thing', that the wearing of masks was not a common practice in
North America and that the mask mandate infringed upon his
rights". Following his supervisors attempts to redirect the
conversion, Evans also stated, "'I am not a Muslim'
and added that he was 'shocked' to see people wearing masks
in western civilizations".
Following the meeting, Evans wrote, "I AM NOT A MUSLIM"
in marker on his mask and wore it throughout the warehouse and
employee lunchroom. During that time, Evans was seen and confronted
by various co-workers and supervisors who alerted him to the fact
that the mask was inappropriate. In the face of these comments -
Evans did not remove the mask.
Evans' conduct was reported and he was swiftly pulled in for
interview, suspended and later terminated. Evans grieved his
termination and sought reinstatement.
The Arbitrator held that Evans' behavior was "a
deliberate, intentional, defiant and offensive act of
misconduct". Evans expressed views that were discriminatory on
the basis of protected characteristics under human rights laws and
in violation of the employer's Discrimination and Harassment
Policy (D&H Policy), giving FCL reasonable and just cause to
impose discipline. In the circumstances, termination was not
excessive.
In arriving at this conclusion, the Arbitrator made the following
notable findings:
- Mandatory mask policy was lawful. The Arbitrator stated that FCL had every right to implement a mask policy to protect its workforce against COVID-19 – this was undisputed.
- More than poor judgement. Evans' behaviour could not be categorized as a moment of poor judgement or a one-off incident. The Arbitrator found that Evans expressed "a sincerely held point of view; one which was entirely at odds with the Employer's D&H Policy, its Code of Conduct and its D&I program."
- Adequate warnings. FCL adequately explained the health and safety rationale for the adoption of the mask policy to Evans and refuted his initial comments and objections. Even still, Evans was not dissuaded from expressing additional discriminatory views after he was redirected and corrected. Further, Evans continued to wear the mask even after having been cautioned and confronted by colleagues and superiors.
- Consideration of contextual factors. The Arbitrator considered the social context; the rise in hate crimes and acts of discrimination, harassment and violence against visible minorities, including those of Asian descent and those of the Muslim faith recorded during the COVID-19 pandemic. The Arbitrator also considered the importance of modern views of acceptable workplace conduct and the diversity of the employer's workforce.
- Workplace policies and culture. Evans' behaviour violated FCL's policies, programs, initiatives and core values. FCL had worked to build a workplace culture that was free of discrimination and harassment. FCL had established and updated various workplace policies and initiatives reflecting their statutory obligations and values, including a Code of Conduct, a D&H Policy and a program which focused on diversity and inclusion as a company priority and subjected those in breach to corrective or disciplinary actions, up to and including termination. Evans had prior training and refreshers on these workplace policies. The D&H Policy in particular, had been in place throughout the entirety of Evans's 20-year career.
TAKEAWAYS
As seen in this decision, well-implemented and established
policies can later serve as the basis for justifiable disciplinary
action. In Ontario, all employers are required to develop and
maintain workplace violence and harassment policies and programs.
Such policies should, among other things, include procedures for
controlling, reporting and investigating incidents in the
workplace.
Here, the employer's proven and long-standing commitment to
fostering an inclusive workplace, and the speed with which FCL
addressed the unwanted behavior, were important factors supporting
the employer's decision to resort to termination for the
discriminatory conduct.
While termination is often justified when employers identify a
pattern of discriminatory conduct over a long period of time, such
a pattern was not necessary here where a series of incidents over
the course of the same day demonstrated that the employee
deliberately chose not to heed warnings.
Racist and discriminatory comments often justify termination in
labour arbitrations. However, employers must nonetheless consider
the particular circumstances of each case and award discipline that
is proportional to the conduct.
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