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Kerceli v. Massiv Automated Systems, 2016 HRTO 1324 (CanLII)

Summary:

In this case Muharrem Kerceli (the applicant) worked for Massiv Automated Systems (the respondent) as a contract employee from July 2014 to April 2015. Prior to this contract position, the applicant had worked for the respondent from 2000 to 2005. The allegations brought forward in this case stem from the applicant’s employment during the time period of July 2014 to April 2015. During this time period Mr. Kerceli worked for the respondent as a saw operator in their fabrication department. The applicant’s allegations are in relation to the comments/actions made by Johnson Ediae and Vic Sandhu (both employees at Massiv Automated Systems). In this case Mr. Kerceli alleges that Mr. Ediae would hide tools from him and call him “crazy” or say “you people are crazy”. In relation to these comments, the applicant and Mr. Ediae had a meeting with their supervisor Mr. McGarry. In the instance of Mr. Sandhu, the applicant alleges that he would say sexually inappropriate things to him in the workplace. He would say things like “hey sexy guy, how are you?” and “hey gay guy, how are you?” Comments like these from Mr. Sandhu continued until April 2015 when the applicant was let go. In this case, Mr. Garcia, a co-worker of Mr. Kerceli, Mr. Ediae and Mr. Sandhu, corroborated the facts of Mr. Kerceli’s testimony regarding Mr. Sandhu and stated that he had heard Mr. Ediae and the applicant arguing at work. During the hearing there was disagreement around what events had actually occurred. In the case the trial judge had to examine the reliability and credibility of witnesses. Mr. Kerceli and Mr. Garcia were determined to be reliable and credible witnesses and therefore it was found that the applicant was subject to sexual harassment in the workplace and a poisoned work environment. 

Question to be Determined:

            1. Do the applicant’s experiences amount to a breach of the Code in relation to race?

            2. Do the applicant’s experiences amount to a breach of the Code in relation to sexual     harassment?

            3. Was the applicant subject to a poisoned work environment?

            4. Was the applicant subject to reprisal?

Findings:

            1. Do the applicant’s experiences amount to a breach of the Code in relation to race?

            NO

            2. Do the applicant’s experiences amount to a breach of the Code in relation to sexual     harassment?

            YES

            3. Was the applicant subject to a poisoned work environment?

            YES

            4. Was the applicant subject to reprisal?

            NO

Reasoning:

1. Do the applicant’s experiences amount to a breach of the Code in relation to race?

In this case it was stated that,

As indicated above, I have accepted that Ediae did prevent the applicant from accessing tools and cut lists and made the work difficult for the applicant. However, I do not find that the evidence demonstrates that these actions were connected to the applicant’s           race. The only allegation that the applicant made that could be found to be connected to his race is the allegation that Ediae called him a Muslim terrorist. As indicated earlier, I have found that there was not sufficient evidence to accept that Ediae had said this (para 179).

2. Do the applicant’s experiences amount to a breach of the Code in relation to sexual harassment?

Yes, the comments made by Mr. Sandhu were sexual in nature and vexatious.

The comments made by Sandhu were a use of his power as an employee in a more  favourable employment position than the applicant. The comments were meant to    ridicule and embarrass the applicant. I find that such comments did undermine the      applicant’s dignity. Sandhu’s conduct was a form of bullying that clearly falls within the Tribunal’s and Courts’ understanding of sexual harassment (para 189).

It is also clear that the comments were vexatious. The applicant stated that Sandhu’s behaviour was very annoying and he described it as schoolyard bullying. The comments were known, or ought to have been known, as unwelcome. I find that the applicant did         tell Sandhu that although the comments may have been considered to be a joke by Sandhu and others, they were not accepted as a joke by the applicant and were unwelcome. I accept that the applicant asked him to stop making these comments. I also find that the applicant and Garcia complained to McGarry and therefore management of the respondent knew that the comments were unwelcome (para 190).

3. Was the applicant subject to a poisoned work environment?

Yes, the applicant was subject to a poisoned work environment. In this case the “vexatious, unwelcomed comments pervade[d] the atmosphere and psychology of the workplace” (para 192). In particular attention was directed towards management’s response to the allegations. 

The respondent’s management was responsible for ensuring that when employees are told that harassment is not tolerated in the workplace that staff are aware of what is meant by discriminatory and harassing behaviour. Management did not fulfill this responsibility. Management also failed to take the applicant’s concerns seriously or to properly investigate these concerns. This allowed Sandhu to continue to make the vexatious comments (para 196).

4. Was the applicant subject to reprisal?

In this case the applicant submitted that he was fired because he complained about the comments and behaviour of Mr. Ediae and Mr. Sandhu.

I find that the timing of the last complaint the applicant made about Ediae or Sandhu is too remote from the timing of his termination for a finding that a reason for terminating       him was his complaining or attempting to assert his Code rights. I do not find that he    experienced reprisal. The respondent has established that the reason for the termination was his poor performance (para 203).

Remedy:

The Tribunal orders that:

  • Within 30 days of this decision, the respondent shall pay the applicant $25,000 as monetary compensation for injury to dignity, feelings and self-respect.
  • Within six months of this Order, the respondent is required to provide a human rights training program to the all employees, management and supervisors of its fabrication department. This program shall also include training on its own Harassment and Discrimination policy and internal complaint procedures.