Miekle v. Mississauga Seating Systems  OHRTD no. 148 (Interim Decision)
Can a complaint of workplace violence come within the ambit of the Human Rights Code?
Section 8 of the Code prohibits reprisals against people who attempt to enforce their human rights under the Code. Workplace violence is a health and safety (and possibly criminal) matter; therefore, a complaint of workplace violence cannot come within the ambit of section 8 unless the complaint is also a human rights complaint.
The applicant ( Maysadis Verina Meikle) filed a complaint with the Tribunal making a series of allegations. In her application, she alleges that she suffered reprisal, contrary to section 8 of the human rights code, when she complained about an incident of workplace violence.
In her application, she made the following allegations:
- In July 2008, she was the victim of a physical assault at work. When management failed to investigate her complaint in an appropriate manner, she reported the incident to the police
- In March 2009, her managers reassigned her from a modified position (which was assigned to her as accommodation for documented disability) to duties that exacerbated her disability. The plant manager harassed her when she reported this unfair treatment to head office.
- In March 2009, she met with the general manager to complain that since reporting the assault to the police, she had been treated differently at work. The general manager engaged in a fact-finding process with her managers, who all denied the allegation of differential treatment.
- In April 2009, she was returned to her modified position a month later only to experience another form of unfair treatment when her right to a double break was taken from her but not from her white coworkers.
- In May 2009, she was harassed by managers (a superintendent and a supervisor) for not wearing the proper safety footwear
In her application, she includes two documents:
- A preliminary report of her union’s human rights investigation (dated Sept 2009) into her complaint indicates that “further investigation of her allegations was warranted”. The report listed the following allegations, made by the applicant in August 2009:
- She felt that management did not treat her allegations of assault seriously because she is black and the alleged perpetrator is white
- A few months prior to the alleged assault two persons of colour had an argument in the cafeteria and were subsequently fired
- An employee of colour was sent home for not having his safety shoes , but a few days earlier a white employee was sent to the cafeteria until he was provided with a mangers safety shoes; and
- The applicant alleged that race-related preference was applied when her modified job assignment was given to another employee and when her pre-assigned break time was modified to accommodate another employee.
- The applicant stated that the plant manager tried to intimidate her after she spoke to a head office representative about perceived unfair treatment
- The applicant alleged that a superintendent, MS tried to “set her up for discipline for not wearing safety shoes
At the summary hearings, the Tribunal chair asked her how the employer’s response to the alleged workplace assault was linked to a prohibited ground of discrimination. She responded that she could not point to any link “at this time” except to point to the findings of the human rights investigation conducted by the union.
Legal test and principles
In Noble v York University (2010), the tribunal set forth three elements which, together, establish a successful reprisal application:
1) An action taken against, or threat made to, the complainant
2) The alleged action or threat is related to the complainant having claimed, or attempted to enforce, a right under the Code; and
3) An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right
Furthermore, the Tribunal stated that the following principles were relevant
1) There is no strict requirement that the complainant has filed a complaint or application under the Code; and
2) There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.
1) Did the applicant establish a nexus between her race and the employer’s investigation of her claim of workplace violence?
2) Did the applicant establish a nexus between race and the employer’s reassignment of her modified duties?
3) Does evidence of differential treatment of other black employees establish a nexus between the applicant’s race and the employer’s harassment of the applicant?
4) Has the applicant established a nexus between disability and the employer’s reassignment of her modified duties?
5) Has the applicant established a nexus between her workplace violence complaint and her human rights complaint?
- In her application and in the summary hearing, the applicant failed to establish a link between her race and the employer’s investigation of her claim of workplace violence. The allegations set forth in her human rights report do not assist her argument for the following reasons. In paragraph 17 of the decision, the chair provides the following rationale."Heath and safety matters, such as the investigation of workplace violence, are not prohibited grounds of discrimination with respect to employment or any other social area under the Code. The applicant stated that the respondent did not deal with her assault complaint properly, but pointed to no evidence that she had or which was reasonably available to her that would link the investigation to prohibited grounds of discrimination. The applicant pointed to the investigation conducted by the intervenor, but in my view the allegations set out in the report do not assist her. The assertion that management did not treat her complaint seriously because she is black and the alleged perpetrator white is a bald allegation. The applicant described no evidence of differential treatment, e.g., of management dealing with a health and safety complaint from a non-racialized person in a more proactive and thorough manner. The allegations regarding the dismissal of racialized employees and differential treatment regarding safety shoes have no apparent connection to the investigation of the assault complaint. These allegations relate to entirely different subject matter and there is no indication that the managerial personnel involved were also those that dealt with her complaint such that it might be possible to establish a pattern of race based differential treatment. The allegation that her modified duty position was assigned to another employee because of racial preference is also a bald assertion. Accordingly, the applicant pointed to no evidence that would bring the manner in which the respondent dealt with the assault allegations within the Tribunal's jurisdiction. Therefore, these allegations have no reasonable prospect of success and are dismissed. In these circumstances, I need not determine whether they are untimely. (17).
- The tribunal chair pointed out that, once again, the preliminary human rights report did nothing more than reproduce the applicant’s “bald assertion” of this nexus. Moreover, the application gave a contradictory explanation for the employer’s differential treatment in this regard; ie. it was reprisal for reporting the alleged assault to the police.The applicant also alleged that the reassignment of her modified duties, leaving her with no work and changing her break time amounted to discrimination because of race, but she did not provide any particulars in the Application regarding why she thinks her race was a factor. At the summary hearing, the applicant pointed to the report prepared by the intervenor, which records the applicant's belief that her modified duties and break time were re-assigned because of racial preference. Again, this statement is a bald assertion. The fact that her duties or break time were assigned to employees of a different race or colour is not sufficient, in itself, to infer that race or colour was a factor in the decision. Moreover, the Application indicates the applicant believed this differential treatment, particularly by superintendent M.S., was the result of her reporting the alleged assault to the police.
- The Tribunal chair determined that while there was some evidence of differential treatment of other black employees with regard to safety shoes, there was no evidence of differential treatment of the applicant in regards to safety shoes; the applicant did not establish that the same managers treated black and white employees differently. Nor did she establish any relationship between managers who sent black employees home for wearing inappropriate footwear and those who allegedly harassed her for wearing inappropriate footwear.
- The Chair established that in this case, the applicant had presented evidence that, if established, could amount to a breach of the duty of accommodate.
- In paragraph 21, the Tribunal Chair stated that while a complaint of workplace violence could come within the ambit of Section 8 of the Code if it was also a human rights case, this was not the case in the application at hand:
“The Application contains no assertion that the applicant attempted to enforce a right under the Code. In the Application, the applicant asserts that she experienced retaliation because she complained about a workplace assault. Section 8 of the Code prohibits reprisals against people who attempt to enforce their human rights under the Code. Workplace violence is a health and safety (and possibly criminal) matter; therefore, a complaint of workplace violence cannot come within the ambit of section 8 unless the complaint is also a human rights complaint, which is not the case in this Application. The applicant complained of human rights violations to the respondent and intervenor in the summer of 2009, which is after the alleged incidents of reprisal occurred. Consequently, there is no evidence that could link the alleged incidents to any prior claim or attempt to enforce the applicant's human rights. Therefore, there is no reasonable prospect that the applicant will be able to prove that she was subject to a reprisal under the Code.