A labour arbitrator has found that a White employee's use of anti-Black racial slurs gave the employer just cause to terminate employment, and none of the employee's long service or clean discipline record should interfere with the employer's decision to terminate.
In the case of Levi Strauss & Co. v Workers United Counsel Canadathe Grievor had an altercation with a Black co-worker, during which he repeatedly used anti-Black slurs and other profanities. When the Black co-worker was terminated within his probationary period, the Grievor reveled in it, and took credit for “getting rid of” the employee, further using racist slurs among his other co-workers.
The employer took decisive action in firing the Grievor on a just cause basis, relying on its workplace violence and harassment policy, which among other things, prohibited “Racial/Ethnic Harassment” which included “derogatory racial or ethnic slurs”. Further, the policy forbade all conduct that would contribute to “a poisoned work environment” and “workplace bullying”. The collective agreement in place between the employer and union contemplated use of progressive discipline, save only for instances of “serious violations”.
For its part, the Union denied that the Grievor engaged in the alleged conduct, but also argued alternatively that termination of employment was an unreasonably harsh punishment. The Union relied on the facts that the Grievor has 23 years of service and a clean disciplinary record within the collective agreement's 12-month “sunset clause”. In essence, it argued that the conduct was not serious enough to warrant dismissal. It argued for the Grievor's reinstatement with back pay, and alternatively progressive discipline.
The Arbitrator had none of it. He reviewed that in the past, verbal altercations between employees, including the use of racist insults, may have been put down as “shop talk” with minimal disciplinary response. But in the present day, the law on racist language in the workplace has evolved:
In my view, given the evolution of thinking on the matter discussed below, racially demeaning language and racial slurs can never be excused as mere “shoptalk” or as having a lesser import when not directed at anyone in particular. Rather, if such words are capable of being overheard in the workplace, at a minimum they contribute to a poisoned work environment, which if not appropriately redressed leads to the impression that minority racial groups are somehow less entitled to equality.
The Arbitrator found that:
- The Grievor's conduct constituted Workplace Harassment within the meaning of the Occupational Health and Safety Act;
- The Grievor' behaviour was contrary to the employer's Violence and Harassment in the Workplace policy; and
- The Grievor's actions violated section 5(2) of the Ontario Human Rights Code which mandates, among other things: “…freedom from harassment … by the employer or agent of the employer or by another employee because of race …”.
Upon review of contemporary case law the Arbitrator noted that there may be mitigating circumstances in a case where an employee uses racist language, such as in the context of a “momentary flare-up” for which the employee has made a “timely apology” and shown “genuine remorse” demonstrating that they recognize the seriousness of their conduct and are unlikely to reoffend, but the prima facie appropriate response is termination for just cause. Importantly, the Arbitrator decided that long seniority cannot outweigh the prima facie appropriateness of terminating employment in response to deliberate racist taunts.
In this particular case, the Arbitrator held that the Grievor denied all wrongdoing and even claimed to have been provoked by his Black co-worker – which was not at all supported by the evidence. The Arbitrator did not have confidence that the Grievor recognized his wrongdoing and was unlikely to reoffend. His return to work would therefor compromise the rights of the other employees who deserve to work in an environment that is free from the risk of harassment on the basis of race. Further, the Grievor's conduct clearly constituted a “serious violation” for which the employer was not required to apply progressive discipline.
This is of course a welcome decision for employers who are responsible to ensure that they maintain a workplace free from violence and harassment. It also shows the importance of taking prudent proactive steps, such as ensuring that your workplace as a current workplace violence and harassment policy that specifically contemplates and prohibits racist conduct. The professionals at CCPartners have extensive experience advising employers on keeping proper workplace policies regarding violence and harassment, and representing employers in all disciplinary manners.
Originally published by Crawford Chondon & Partners, October 2020
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