Human Rights Office

Human Rights Office
Human Rights Office

Fredricks v. The BTS Network Inc. and Rose Burt, 2015 HRTO 1597 (CanLII) 

Summary:

In this case, the applicant, Farouk Fredricks worked for BTS Network Inc. from July 2013 till August 29, 2014 when his job was terminated. The applicant worked as a bus driver for BTS Network Inc. in Port Hope, ON.  The respondent, BTS Network Inc. alleges that Mr. Fredricks’ employment was terminated because he violated a non-competition Appendix in his employment contract. During the time of his employment, the applicant does not deny working for Coach Canada, a “rival” bus company on his weekends. The applicant alleges that his employer was aware of his employment with Coach Canada on the weekend. Contrary to the respondent’s position, the applicant alleges he was fired as a form of reprisal for a letter he had written to the company alleging racial discrimination in the workplace. It is important to note that the applicant was encouraged to document his concerns regarding racial discrimination by his supervisor, Rose Burt. In this case there were a number of issues that were decided. In considering whether the applicant’s complaint of racism played a part in the decision to fire Mr. Fredricks, the adjudicator considered the depth of investigation that BTS Network preformed when considering his complaint. In this case, the adjudicator concluded that Ms. Burt did not perform any real type of investigation (i.e. not speaking to the applicant at any point) and therefore disregarded his complaints. Ms. Burt, working on behalf of BTS Network ultimately decided that Mr. Fredricks’ complaints of racial discrimination was unfounded. In this case the adjudicator decided that contrary to the respondent’s position, that Mr. Fredricks was terminated for violating the non-competition appendix in his employment contract. It was asserted that Mr. Fredricks was ultimately terminated as a form of reprisal for writing a formal complaint against BTS alleging racial discrimination in the workplace. In this case, the adjudicator paid particular attention to the requirement of an employer to properly investigate a claim of discrimination in the workplace. There is no evidence that the employer did an investigation into the applicant’s concerns regarding racism in the workplace.

Questions to be Determined:

1. Was the applicant’s employment terminated as a form of reprisal, contrary to Section 8 of the Code?

Findings:

1. Was the applicant’s employment terminated as a form of reprisal, contrary to Section 8 of the Code?

YES

Reasoning:

In this case it was determined that the applicant’s employment with BTS Network Inc. was terminated as a form of reprisal for the concerns he raised in relation to racism in the workplace. This is contrary to the respondent’s position that the applicant’s           termination was a result of his violation of the non-competition appendix in his employment contract.

This leads to the conclusion that the respondents were looking to fire the applicant in late August, 2014 and used the applicant’s part-time employment with Coach Canada as an excuse…. If the applicant’s work for Coach Canada was not the reason for the termination of his employment, what was the reason? I agree with the applicant that the only plausible explanation is the fact that he had made a formal complaint of racism against another of his co-workers. That is, he claimed his rights to a workplace free from discrimination and harassment on the basis of race (para 61 and 62).

It was further stated that,

The respondents’ attitude to the fact that the applicant made an allegation of discrimination is made manifest by the way they reacted to his complaint. Having asked him to put his concerns in writing, they appear to be deeply offended by what they read. Other than to get the alleged perpetrator’s point of view, they did nothing to investigate what might be the applicant’s concerns. There is no evidence that they made any effort to speak to him and the other worker before concluding that his concerns had no merit (para 64).

It would appear that the respondents took the view that differential treatment, in the absence of any overt expressions of racism, cannot amount to racism and that it was, therefore, improper for the applicant to have even raised the spectre of racism.Ultimately, the respondents may have been correct that the applicant’s concerns were either groundless, or based on some other, non-Code related hostility, but given the short shrift they gave them, their outrage seems misplaced (para 65).

Remedy:

In this case the adjudicator remained seized to deal with the issue of remedy but no future cases exist with a description of the remedy.