Human Rights and Equity Office

Human Rights and Equity Office
Human Rights and Equity Office

Meeting 20: Gender Identity and Gender Expression in Recent Case Law Discrimination in the Workplace

This meeting focused on cases related to gender identity and gender expression as well as cases on discrimination in the workplace. Jean Pfleiderer, Human Rights Advisor and Erin Clow, Equity Advisor were our guest speakers at this meeting.

Gender Identity and Gender Expression Cases

Vanderputten v. Seydaco Packaging Corp. and Gerry Sanvido

Facts

Vanderputten v Seydaco Packaging Corp. [2012] OHRTD no 1946

The complaint, Maria Vanderputten was dismissed from Seydaco Packaging following an incident with a co-worker (Gerry Sanvido).

The applicant, a transgender woman, was not a model employee.  Before coming out at work as a trans woman, she had a discipline history for insubordination and angry outbursts for which she was eventually dismissed in 2006.  Rehired in 2007, she was subsequently suspended for an incident of workplace violence (swearing, throwing wood). 

In 2008, she entered into the gender identity clinic at the Centre for Addiction and Mental health and was put on hormone treatment in preparation for genital reconstruction surgery.  She began dressing in “feminine” clothing (skirts, bras) and wearing makeup at work.  The president of the company told her that she would be treated as a male employee until such time as she presented legal or medical documentation attesting to her gender status.  When she asked him to write the Centre for Addiction and Mental health a letter attesting that she was working in a “female gender role”, he did write the letter but refused to attest that she was working in a female gender role, as he was a male “Tony Vander Putin was employed as a male gender and will continue to be employed as a male gender until we are provided with sufficient medical and Ontario Labour standards information to change his status to a female gender”.

When the Director of Operations heard from other female employees that Maria had told them that he would eventually be using the women’s washroom, he forbid her access to the facilities until such time as she could prove that he was a female by providing medical or legal documentation.  One day, while working in a warehouse (located at a different location from the plant where she usually worked) Maria used the women’s washroom because the plumbing of the men’s washroom was broken.   The Director of Operations received a complaint (from an employee of another business who rented space in the warehouse) and told Maria not to use the washroom. She was not disciplined but was not allowed to work at that warehouse anymore.

Like all the employees, Maria had to change from her own clothing into the company uniform upon arrival at work.   The men teased her because of the clothes she wore and her increasing breast size (from the hormones). Management denied her request to switch shifts so that she could change when the other men were not there, and told her to get to work early to change before anyone else arrived. This was impossible due to the Public Transit schedule.

Maria complained several times about alleged harassment in the workplace, including demeaning comments and questions about her gender, sexual orientation, physical violence (pushing, shoving, having things thrown at her), being isolated, being picked on, being stared at, being mocked publically on the company’s bulletin board (news clipping of a transvestite with the applicant’s name written across it).  The company dealt with some of these complaints.  Some employees were told to cease the teasing or face discipline.  An employee who physically injured the applicant was fired.  A meeting was held in which all employees were asked to read and sign a copy of the Code of Business and Conduct Ethnics which included an anti-discrimination clause

The respondent’s defense was that the applicant was the cause of all the incidents she characterized as harassment.  A number of complaints were investigated by the president or the director who spoke to the alleged harassers and came to the conclusion that they had all been provoked by the applicant. The president testified that the applicant provoked her fellow employees her by “displaying” her new clothing, exposing her bra to a female employee, asking men to comment on her bra and her growing breasts, by calling some of them homophobic names, or giving them written confirmation of her sexual identity.   It got to the point that when Maria came forward with a complaint about an employee hitting her in the fact with a “gay lea” card the director said “You probably started it”.

Maria received a letter of reprimand with a threat of termination for asking some of the women employees to share their gender-related experiences relating to their breasts and their menstrual cycles.

The applicant was dismissed following an incident in which she came to complain about one of her most persistent alleged harassers (Mr. Sanvido, named as a personal respondent in this case). She told the president that Mr. Sanvido had just called her a faggot for no reason.  The president interviewed Mr. Sanvido who claimed that Maria had been throwing skids around in an aggressive way so he told her not to be an asshole. It was Maria who, in anger, called him a “faggot”.   Maria denied throwing skids around, but admitted that at that time she should have been doing a different task; shrink wrapping. She had, instead, been cleaning up the skids that someone else had left lying around.   She said that she was working in a poisoned environment and that she couldn’t work under these conditions.  As a result, Maria was dismissed for insubordination (not doing the right task at the right time) and workplace aggression.  Mr. Sanvido was not disciplined.

Issue

  1. Was the applicant harassed because of her sex and gender identity?
  2. Did decision to terminate the applicant amount to discrimination?

Decision

  1. Yes
  2. Yes

Reasons

  1. "For the reasons that follow, I find that prior to the date of the applicant’s dismissal, the applicant was subject to a poisoned work environment, through harassing comments about her gender identity and being required to use the men’s change room. Seydaco contributed to this poisoned environment through its insistence that the applicant be treated as a man in all respects until she completed surgery, including requiring that she change with men, and its failure to investigate and respond reasonably to the applicant’s allegations that she was being harassed because of her sex and gender identity “. (62)
     
  2. The tribunal used two human rights principles to make this determination 1) “Where termination occurs within a poisoned work environment a proper consideration of whether the termination was discriminatory requires that it e examined in the context of the poisoned work environment’ [Smith v Mardana 2005] and 2) Where employees are confrontational or aggressive as a result of a discriminatory working environment, discipline for that aggression is a violation of the Code  (several precedents see para 81) It concluded:  “Given all the events the overall attitude taken toward the applicant and her transition, it is ore probably than not that the applicant’s complaints of discrimination, the conflicts that arose because other experience her transition as novel and there her sex play a part in the decision to terminate her employment.
Dawson v. Vancouver Police Board (No. 2) 2015

Summary

Dawson v. Vancouver Police Board (No. 2) 2015 BCHRT 54 (CanLII)

Angela Dawson is a transgender women. Ms. Dawson’s legal name is Jeffrey Allan Dawson. In this case Ms. Dawson alleges that the treatment she received from the Vancouver Police Board (VPB) amounted to discrimination based on sex. In this case Ms. Dawson allegations are based on six separate incidents with the VPB. In this case the adjudicator ruled on each incident separately. All allegations except for those arising on March 29-30 and June 18th are dismissed. On March 29-30 and June 18th the adjudicator in this trial ruled that Ms. Dawson was discriminated against based on sex because she was not provided necessary medical treatment related to her gender-reassignment surgery. In particular, Ms. Dawson sates that although she informed officers and nurses within the jail that she needed to preform particular medical procedures (dilation) frequently (four times per day) she was denied the ability to perform this procedure while in custody. The VPB did not consider how they could accommodate Ms. Dawson and whether or not accommodating Ms. Dawson would amount to undue hardship. On June 18th Ms. Dawson was arrested for breach of the peace. On this particular incident VPB referred to Ms. Dawson using male pronouns and her given name “Jeffrey”. In addition, Ms. Dawson was again restricted from preforming a dilation procedure related to her gender-reassignment surgery. On this incident and the one on March 29-30 it was decided that Ms. Dawson had been discriminated against on the basis of her sex by the VPB. 

Question(s) to be Determined

Did the VPB discriminate against Ms. Dawson on the basis of her sex?

Findings

  1. Did the VPB discriminate against Ms. Dawson on the basis of her sex?
    YES*

*In this case Ms. Dawson made allegations regarding six separate incidents.  In this case all allegations except the following were dismissed except for:

  • The Complaint concerning the medical treatment she received while incarcerated March 29-30 and June 18 is upheld.
     
  • When the VPB referred to Ms. Dawson as male, it discriminated against her, particularly with respect to the incident on June 18, 2010. 

Reasoning

In this case it was stated that: “I find that the way that Ms. Dawson received medical treatment in the jail amounted to discrimination. Her claim that she needed to undergo post-surgical treatment was not taken seriously. No real effort was made to accommodate her needs and no evaluation was done by anyone at the jail as to whether such accommodation would amount to undue hardship” (para 157).

In relation to the use of male pronouns when referring to Ms. Dawson it was stated that the VPB lacked a clear and consistent approach when working with transgender perpetrators, witnesses or victims. “Overall, the interactions between Ms. Dawson and members of the VPB show that there is significant inconsistency in approach of how officers deal with and identify Ms. Dawson. In many cases, members of the VPB have referred to Ms. Dawson with both male and female pronouns; often in the same document. They will call her Angela or Jeffrey” (para 243).

“I conclude that VPB has no policy with respect to the way to identify trans people, with whom it deals, either as victim, witness, or perpetrator. There has been no description of the circumstances under which officers should use the name and gender preferred by the trans person. There was no evidence of the VPB weighing the circumstances and identifying to its officers when using other than the legal name would be a reasonable accommodation, short of undue hardship” (para 244).

Remedies

In this case it was ordered that:

  • The VPB cease the contraventions and refrain from committing the same or a similar contravention.
     
  • The VPB pay Ms. Dawson the sum of $15,000 as damages for injury to dignity, feelings and self-respect.
     
  • The VPB has engaged in systemic discrimination of trans people concerning their identification. Within one year, policies are to be adopted by VPB that allow identification of trans people without discrimination. Officers are to be trained in implementation of these policies.
Browne v. Sudbury Integrated Nickel Operations, a Glencore Company (Smelter Division), 2016

Summary

Browne v. Sudbury Integrated Nickel Operations, a Glencore Company (Smelter Division), 2016 ON HRTO 62

During the time in question, Christopher Browne worked for Sudbury Integrated Nickel Operations as a Converter Aisle Crane Operator in the company’s smelter complex. Mr. Browne had worked for the company for 19 years. All employees who worked in the smelting plant are required to be fitted for and carry an approved respirator mask. For certain activities the respirator mask is required to be worn (health and safety reasons).  For employees required to wear the respirator mask the company has a “clean shaven policy”. In the spring of 2014 a memo was sent out to employees indicating that as of April 1, 2014 the “clean shaven policy would be strictly enforced and failure to comply with the policy would result in discipline. On March 25, 2014 the applicant met with management and expressed his concerns and questions regarding the policy. The applicant did not believe that the “clean shaven policy” constituted a reasonable and bona fide occupational requirement. The applicant felt that ensuring the proper fit of respiratory masks could take place with a beard provided there was a “fit test”. At the March 25, 2014 meeting the applicant was asked by the respondent whether or not he would comply with the policy. The responded stated he would likely not comply. In the end, the applicant did shave off his mustache and goatee for his shift on April 2, 2014. Despite complying with the policy and not being disciplined, the applicant alleges that the threat of discipline amounts to reprisal and therefore a violation of the Code. In this case it was concluded that the growing of facial hair, other than perhaps for reasons related to a religious observance, is not protected under the Code in relation to either the protect ground of sex or gender expression. In addition, it was decided that the applicant’s allegation of reprisal did not have a reasonable prospect of success. 

Question to be Determined

  1. Did the applicant, Christopher Browne, experience discrimination and reprisal with respect to employment because of gender expression?

Findings

  1. Did the applicant, Christopher Browne, experience discrimination and reprisal with respect to employment because of gender expression?
    NO

Reasoning

Relying heavily on previous case law, it was decided that the company’s “clean shaven policy” did not amount to discrimination because of sex and/or gender expression. Relying heavily on previous case law (Brooks v. Canada Safeway Ltd. 1989) it was stated that,

"the growing of facial hair cannot be elevated to a right protected under human   rights legislation, absent any connection to the growing of facial hair as a matter of religious observance or perhaps to some protected ground other than sex. In my view this ruling by the Supreme Court of Canada is binding upon me and is determinative of the issue that the respondent’s “clean shaven policy” cannot be regarded as amounting to discrimination because of sex (para 32)."

It was further stated that “wearing a beard or other facial hair is a matter of style or grooming, and is not a matter of sufficient social significance to warrant protection under human rights legislation, once again absent any connection to a matter of religious observance or perhaps a different protected ground other than sex” (para 33).

In particular, this case examined whether or not the addition of gender expression to the Code (2012) would change the outcome of this case. In relation to gender expression being added to the code it was stated that,

"The issue for me to consider is whether the ground of “gender expression” added as a result of Toby’s Act should be interpreted to protect the right of cisgendered men to wear beards. In my view, it should not….in my view, interpreting “gender expression” broadly to extend protection to the right of men to grow beards would do violence to the important and fundamental purposes sought to be achieved by human rights legislation. There is nothing to indicate that bearded men suffer any particular social, economic, political or historical disadvantage in Canadian or Ontario society, absent any connection between the wearing of a beard and matters of religious observance or perhaps some link to a protected ground in the Code other than sex or gender expression (para 37 & 39)."

The final matter discussed in this case was whether or not the applicant’s allegation of reprisal had a reasonable prospect of success. In this matter, it was decided that the applicant’s allegation of reprisal did not have a reasonable prospect of success. In supporting this finding it was stated that,

"the right protected under s. 8 of the Code relevant to this proceeding is the applicant’s right “to claim and enforce his….rights under this Act….without reprisal or threat of reprisal for so doing.” In order to establish a violation of this          provision, the applicant needs to prove not just that he was in jeopardy of experiencing a negative or adverse consequence, such as a potential discipline, but that the threat of discipline was made because he claimed his rights under the Code (para 45)."

It was further stated that “even on the applicant’s own evidence, the prospect of potential discipline was not raised by the respondent because the applicant claimed his Code rights, but rather was raised in the event that the applicant failed to comply with the “clean shaven policy” which I have found not to be in violation of the Code (para 47).

Discrimination in the Workplace Cases

Arnold v. Stream Global Services, 2010

Summary

Arnold v. Stream Global Services, 2010 ON HRTO 424 (CanLII)

In this case, the applicant, Jane Arnold, worked as a Technical Support Professional (TSP) at Stream Global Services. In her role, Jane would answer inbound telephone calls on behalf of Stream clients concerning computers, printers and other technological devices. English-speaking TSPs answer inbound telephone calls on the English queue and Bilingual TSPs answer inbound calls primarily on the French queue. From 2000-2006 English-speaking and Bilingual TSPs earned the same starting wage ($10.50 per hour). In addition to this starting wage, bilingual TSPs earned a 10% language premium. In 2006 English-speaking TSPs were informed they would not be receiving a wage increase due to economic reasons (starting wage remained at $10.50 per hour). At the same time, English-speaking TSPs were also informed that the company was experiencing some difficulty in finding Bilingual TSPs and therefore the starting wage for Bilingual TSPs would be increasing from $10.50 per hour to $15.00-$18.00 per hour (10% language premium was removed). This increase in starting wage was developed as an incentive to attract more Bilingual employees. The applicant alleges that she performs the same work as the employees in the French queue and therefore feels that she is being treated differently because of language. The applicant further states that her language proficiency is tied to her place of origin and ancestry and therefore the differential pay rates are discriminatory. In this case it was determined that employees in the French queue were paid more because fluency in French was a skill set required for the work they perform. They were not paid more because they have an ethnic origin or ancestry linked to a French speaking place. The application was dismissed. 

Question to be Determined

  1. Does the wage differential provided to Bilingual Technical Support Professionals amount to discrimination on a prohibited ground in the Code?

Findings

  1. Does the wage differential provided to Bilingual Technical Support Professionals amount to discrimination on a prohibited ground in the Code?
    NO

Reasoning

  1. In this case it was determined that the wage differential provided to Bilingual TSPs did not amount to discrimination on a prohibited ground in the Code. It was stated,

"In some circumstances, where language is inextricably linked with one’s place of origin, the Code may prohibit some forms of discrimination linked to one’s language, such as speaking less grammatically or speaking with an accent: Segula, supra. Similarly, mocking a person who speaks another language has been found to amount to a breach of the Code: Espinoza v. Coldmatic Refrigeration of Canada Inc. (1995), 29 C.H.R.R. D/35 aff’d [1998] O.J. No. 4019 (Ont. Div. Ct.) (para 20)."

It was however determined that in this case these circumstances were not applicable. In this case the wage premium was an incentive used to attract more Bilingual TSPs. The Code does not prohibit wage premiums based on skill sets including language proficiencies. It was further stated that,

"This is not a situation where the employees in the French queue are paid more because they have an ethnic origin linked to a French speaking place. They are paid more because they can speak French fluently and that skill set is required for the work they do. Regardless of their ethnic origin, place of origin, or ancestry, they are paid the premium wage because they are fluent in French."

The applicant’s lack of fluency in French is not sufficiently linked to her place of origin, ethnic origin or ancestry to amount to a breach of the Code. The applicant and other Canadians from English speaking households are capable of becoming fluent in French and attracting the wage premium associated with this work (para 22 & 23). 

Amir and Nazar v. Webber Academy Foundation, 2015

Summary

Amir and Nazar v. Webber Academy Foundation, 2015 AHRC 8 (CanLII) 
Webber Academy Foundation v. Alberta (Human Rights Commission), 2016 ABQB 442 

In this case Mr. Amir and Mr. Nazar were students at the Webber Academy. By its own description, Webber Academy is a “non-denominational, co-educational, university preparatory, accredited private school.” Mr. Amir and Mr. Nazar began attending Webber Academy in December of 2011. Both students are Muslim and require space at school in order to pray during the day. For the first two weeks of classes the students were allowed to pray openly on campus. After this initial few weeks a series of correspondence/events occurred between Dr. Webber (acting on behalf of Webber Academy), the parents of Mr. Amir and Mr. Nazar and Mr. Amir and Mr. Nazar:

  • December 17, 2011 – Dr. Webber telephones parents to inform them the students are not allowed to pray on school campus.
  • January 17 & 30, 2012 – Letter from parents to Dr. Webber asserting students need to pray on campus and the duty to accommodate.
  • February 6, 2012 – Letter from Dr. Webber to parents advising that the students will not be allowed to pray on campus and will not be re-enrolled for the following school year. 
  • February 10, 2012 – Mr. Siddique is conducting prayer in the library at Webber Academy when he is approached and forced to stop praying.
  • February 24, 2012 – Parents and students were praying outside on Webber Academy campus and they are stopped by Dr. Webber. 

In this case, Webber Academy stated that in order to remain “non-denominational” it would not allow Mr. Amir and Mr. Nazar to pray inside the buildings of Webber Academy. As a compromise, Mr. Amir and Mr. Nazar were permitted to pray outside of Academy buildings (on campus property). It was found that Mr. Amir and Mr. Nazar were discriminated against based on religious belief. It was further decided that the “non-denominational” structure of Webber Academy did not justify the discriminatory standard imposed on Mr. Amir and Mr. Nazar. 

Question to be Determined

  1. Has prima facie discrimination on the basis of religious beliefs been established?
     
  2. If prima facie discrimination is established, has the respondent shown that the discriminatory standard has a bona fide and reasonable justification?

Findings

  1. Has prima facie discrimination on the basis of religious beliefs been established
    YES
     
  2. If prima facie discrimination is established, has the respondent shown that the discriminatory standard has a bona fide and reasonable justification?
    NO

Reasoning

  1. In this case it was decided that a prima facie case of discrimination on the basis of religious beliefs was established. It was stated that the Students were denied services in the form of both a refused re-enrollment and a denial to exercise their religious prayer on campus. That these denials were based on the Students’ desires to exercise their religious beliefs clearly connects the protected ground of religion to the adverse impact of refusal and denial of enrollment" (para 79).

    It was further noted that the school’s claim that in order to remain non-denominational it could not allow Mr. Amir and Mr. Nazar to pray at Webber was misguided and in fact discriminatory.

    The respondent argued its policy under the general motive of remaining "non-denominational" such that it appeared to be neutral on its face, similar to "everyone has to work on Saturday" however, its effect on these Muslim Students was adverse and discriminatory. After having met all of the eligibility and admission requirements of the respondent, the Students were thereafter denied meaningful access to Webber Academy (in all its facility and service offerings) based on their religious belief, a protected ground. Accordingly, a finding of prima facie discrimination is made out (para 81).
     

  2. In this case it was decided that the discriminatory standard was not bona fide or reasonably justified. Webber Academy’s standard of no overt prayer or religious activities on school property was not reasonably necessary to accomplish the identity of        being non-denominational. It was however stated that it did appear that Dr. Webber adopted the standard in good faith, feeling that it was necessary in order for Webber Academy to remain non-denominational.

 In coming to this conclusion particular attention was paid to the form and level of accommodation offered to Mr. Amir and Mr. Nazar. In particular, attention was paid to the different types of accommodation afforded to different religious practices.

The evidence also showed the respondent accommodated religious headcoverings and facial hair. The respondent asserted that because prayer constituted an "activity," this justified a different approach. We see no distinction between a turban as a religious    obligation or prayer as a religious obligation and we find no reasonable justification for treating these Students' religious prayer requests differently than a religious headcovering request. Webber Academy's express allowance of certain visual religious             observances undermines its position that overt praying could not be accommodated (para 115).

The respondent's refusal to undertake a balancing analysis to at least ascertain whether there would be any undue hardship involved, together with its refusal to allow the Students to continue praying on campus beyond their first two and a half weeks of         enrollment, further support our finding that the respondent’s actions were not reasonable and justifiable. The evidence overwhelmingly supports that accommodation of the prayer was possible and it would not have been an undue hardship to accommodate the Students’ requests to pray on campus (para 118).

Remedy

Award for damages for distress, injury and loss of dignity:

Mr. Amir $12,000

Mr. Siddique $14,000 (slightly higher to compensate for persistent fear)

Webber Academy Foundation v. Alberta (Human Rights Commission), 2016

In 2016 an appeal was filed by Webber Academy. This appeal was dismissed therefore reaffirming that the discriminatory practices perpetrated by Webber Academy were not reasonable or justifiable. It was further stated that Webber Academy did not demonstrate hardship, let alone undue hardship, motivating this policy.  

The Ottawa-Carleton Public Employees’ Union, Local 503 v. The City of Ottawa, 2016

Summary

The Ottawa-Carleton Public Employees’ Union, Local 503 v. The City of Ottawa, 2016 

In this case, the applicant, Mr. Abshir Elmi, was employed as a temporary full-time shelter support worker with seven years of experience. In March of 2013, Mr. Elmi’s employment was terminated for a “pattern of unwanted and offensive sexual comment involving five female co-workers” (p. 1). According to his female co-workers Mr. Elmi made sexualized comments about them, other female staff members and clients within the shelter. The central issue in this case is the credibility of Mr. Elmi and the five female co-workers. Mr. Elmi denies that any of the incidences involving unwanted and offensive sexual comments occurred. Mr. Elmi maintains that the five female co-workers conspired against him as retaliation for a grievance he filed and won regarding a full-time temporary position. Mr. Elmi maintains that these accusations were motivated by revenge and dissatisfaction. In this case, it was established that Mr. Elmi’s co-workers testimony was more credible than his own and that the fact that none of the incidents were documented through the formal sexual harassment policy and procedure was not a barrier to making this finding. 

Question to be Determined

  1. Does the evidence support a finding of sexual harassment by Mr. Elmi?
     
  2. Is the penalty of termination of employment just and reasonable in all the circumstances?

Findings

  1. Does the evidence support a finding of sexual harassment by Mr. Elmi?
    YES
     
  2. Is the penalty of termination of employment just and reasonable in all the circumstances?
    YES

Reasoning

  •  Does the evidence support a finding of sexual harassment by Mr. Elmi?

Given the number of female co-workers that came forward with similar accounts of Mr. Elmi’s behaviour it was determined that there was enough evidence to support a finding of sexual harassment by Mr. Elmi.

However, this is not a case where a single female has testified against Mr. Elmi. Rather, five female support co-workers (fellow bargaining unit members) have come forward to testify under oath such that, to accept Mr. Elmi's evidence in preference to theirs, I would have to conclude that each of these fellow bargaining unit co-workers came forward independently to give false testimony or, consistent with Mr. Elmi's belief, that they conspired to come forward as a group to give false testimony in order to cause his         termination absent a credible reason for doing so (of which there is none here) and absent any evidence that they did in fact do so, it cannot be found that these five female bargaining unit co-workers conspired to perjure themselves for the purpose of causing Mr. Elmi's termination. Further, it is highly unlikely that five bargaining unit co-workers would each independently decide to commit perjury. It is against this backdrop that their evidence must be considered (p. 14-15).

Addressing the issue of why none of Mr. Elmi’s co-workers utilized the formal sexual harassment policy and procedure it was stated that,

I do not find it surprising that the alleged misconduct was not reported at the time. In the final analysis I have been persuaded by the consistent and unshaken central assertion of these witnesses; that is, that Mr. Elmi engaged in persistent and particularly       offensive sexual annoyance. When all the evidence is considered and weighed, I accept the central assertion of the five female bargaining unit co-workers who testified against Mr. Elmi. Accordingly, I reject Mr. Elmi's denials and hereby find that Mr. Elmi engaged       in persistent, pervasive, unwelcome and extremely offensive sexual annoyance in the workplace (p. 15).

  • Is the penalty of termination of employment just and reasonable in all the circumstances?

In this case it was determined that the penalty of termination of employment was just and reasonable given Mr. Elmi’s continued denial of the accusations. The prospect of a lengthy suspension and then return to work did not seem feasible in this context.

Mr. Elmi, consistent with his blanket denial, has never acknowledged his wrongdoing nor apologized to his female co-workers. Indeed, having accused these females of conspiracy to perjure themselves for the purpose of causing his termination, it is difficult to think that he could work cooperatively with them if reinstated. This is particularly problematic in a work setting where a single male often works with a single female without direct supervision. In these circumstances, the arbitrator cannot predict with an acceptable degree of certainty that, if returned to the workforce after a lengthy suspension, Mr. Elmi would restrain himself and work cooperatively with his female accusers (p. 16).

Kerceli v. Massiv Automated Systems, 2016

Summary

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

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).

  1. 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).

  1. 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).

  1. 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. 
Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2016

Summary

Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2016 Ontario

After numerous complaints from Toronto Transit Commission (TTC) employees regarding abusive tweets on the company’s twitter account (@TTChelps), the union filed a policy grievance asking to have the twitter account shut down. The TTC Twitter account @TTChelps was first opened in 2009. The intention behind the Twitter account was to provide TTC users with service updates and information. As part of the Twitter account, TTC employees would respond to customers’ tweets throughout the day. The protocol around responding to customer tweets was to be courteous, informative and empathetic when appropriate. After being alerted by TTC staff, as to the abusive behaviour occurring on the Twitter account, the union began monitoring the content of tweets being directed to @TTChelps. The union classified the problematic tweets into nine different categories:

  1. Derogatory Language
  2. Violence/Threats
  3. Pictures
  4. Badge Numbers
  5. Breaks
  6. Encouraging Negative Views/False Information
  7. Public Discipline
  8. Requests for More Information
  9. Customer Complaints

In relation to all of these categories, the union submitted that the responses to customers’ tweets were inappropriate and made it appear that the employer was siding with the customer prior to any sort of process. Below are some examples of customers’ tweets and the TTC’s response:

2 bus rides two completely different experiences. Driver 1 #dick Driver 2 #goodhuman #ttc @TTChelps #toronto

It generated the following response from @TTChelps:

You can call us at 416-393-3030 or go to ow.ly/AKsGz to report your experiences (para 26)

YOU NEED TO TEACH YOUR EMPLOYEES SOME MAN-NERS AND RESPECT! I SWEAR I'LL RAISE THE ASSAULT RATE MYSELF

It generated the following response from @TTChelps:

I understand your frustrated however TTC does not tolerate threats against our employees Please call if you have a complaint

Based on evidence of tweets within all of the categories above, the union claimed that the employer was failing to provide a workplace that was safe and free from harassment. As part of this claim the union asked for a number of remedies (see para 97) including the shutting down of the @TTChelps Twitter account. In this case, it was decided that the TTC failed to protect its employees from harassment on its company’s Twitter account (@TTChelps) but the arbitrator did not order for the account to be shut down. There were instead recommendations made surrounding the type of response/actions that should be taken as a result of an abusive or harassing tweet as well as the order that a social media guideline for responses be developed. 

Question to be Determined

  1. Did the employer (the Toronto Transit Commission) fail to protect its employees from harassment on its company’s Twitter account (@TTChelps) contrary to the Ontario Human Rights Code and the collective agreement?

Findings

  1. Did the employer (the Toronto Transit Commission) fail to protect its employees from harassment on it company’s Twitter account (@TTChelps) contrary to the Ontario Human Rights Code and the collective agreement?
    YES

Reasoning

In this case the arbitrator weighed the pros and cons of the TTC’s social media presence  on Twitter @TTChelps. Ultimately it was decided that the TTC’s presence on social media was important but that changes needed to be made in order to ensure that     employees were not subject to harassment in the workplace. Examples of the TTC’s failure to provide employees with an environment that is safe and free from harassment included the following:

It is clear from the totality of the evidence that the TTC has failed to take all reasonable and practical measures to protect bargaining unit employees from that type of harassment by members of the community, as required by the HRC, the Agreement, and the Workplace Harassment Policy. The evidence discloses many inadequate responses by @TTChelps to offensive tweets of that type, such as: (1) ignoring the offensive language and merely advising the tweeter "You can call us at 416-393-3030 or go to ow.ly/AKsGz to report your experiences"; (2) responding by stating "We understand your concerns however please refrain from personal attacks against employ-ees", but then going on to provide information on how to file a complaint; (3)responding "Can you please refrain from using vulgarity and elaborate on what happened?"; or (4) responding by merely stating that the TTC does not condone abusive, profane, derogatory or offensive comments (para 133).

Some of the recommendations for changes are included below:

To deter people from sending such tweets, @TTChelps should not only indicate that the TTC does not condone abusive, profane, derogatory or offensive comments, but should go on to request the tweeters to immediately delete the offensive tweets and to advise them that if they do not do so they will be blocked. If that response does not result in an offensive tweet being deleted forthwith, @TTChelps should proceed to block the tweeter. It may also be appropriate to seek the assistance of Twitter in having offensive tweets deleted. If Twitter is unwilling to provide such assistance, this may be a relevant factor for consideration in determining whether the TTC should continue to be permitted to use @TTChelps (para 133).

@TTChelps should not only indicate that the TTC does not condone the posting of photographs of TTC employees on Twitter but should go on to request the offending tweeters to immediately delete the posted photographs and to advise them that if they do not do so they will be blocked. If that response does not result in the photograph being deleted forthwith, @TTChelps should proceed to block the tweeter (para 136).

Developing templated responses mutually acceptable to the Employer and the Union might well be of assistance to the senior service representatives who respond to tweets received by @TTChelps, and beneficial in ensuring that the responses they provide are        not violative of the TTC's collective agreement or statutory obligations. It might also be beneficial for the parties to develop mutually acceptable guidelines regarding when information of that type should be provided, and when tweeters should simply be advised that if they wish to file a complaint they must contact the TTC by telephone or via the TTC website (para 146).