Human Rights and Equity Office

Human Rights and Equity Office
Human Rights and Equity Office

Meeting 28: COVID-19 and Human Rights

This meeting focused on the impact of the COVID-19 pandemic on Human Rights.

Ontario Human Rights Commission Policy statement on the COVID-19 pandemic and COVID-19 and Ontario’s Human Rights Code: Questions and Answers

Guest Speakers

Stephanie Simpson, Associate Vice Principal (Human Rights, Equity and Inclusion), and Melissa Seal, Queen's University University Legal Counsel.

 

Cases

Davis v. Sandringham Care Centre and another

J.D. v. Sandringham Care Centre and another

Summary

Ms. Jessica Davis (J.D.) is a Registered Care Aide (“RCA”). She was employed by Sandringham, a psychogeriatric care facility for over a year as an RCA with no complaints about her work performance. Due to childhood trauma, Jessica Davis (J.D.) has Post-Traumatic Stress Disorder (“PTSD”), and she spent many years in therapy to address her PTSD and to develop coping mechanisms if a situation triggered a re-occurrence. She had shared her diagnosis with Quinn Wolf (Q.W.), also an RCA.

On September 27 and 28, 2012, J.D. took two sick days due to a flare-up of her PTSD symptoms, returning to work on September 30. On September 27, J.D. had a phone conversation with Q.W. about her recent leave. According to Q.W., J.D. told her during this conversation that she "had a monster inside her" and "didn't know how long she could keep it inside her from killing herself." Although acknowledging that she spoke to her co-worker that day, J.D. denied making any remarks of this nature.

Later, Q.W. expressed her concern about J.D. to Debra Kean, the facility executive director, and advised her to “check-in” with J.D to make sure everything was okay. Q.W. denied providing the director, who was not aware of J.D.'s condition, with any details about J.D.'s mental health.

On October 02, J.D. returned to work as resumed her duties as usual, but she was called to a meeting by Ms. Kean ostensibly to give her a pen and card in recognition of her one year of service. However, J.D. claimed that the director then began to repeatedly question her about her recent sick days and ask her how she was "really doing" throughout a two-hour meeting. J.D. began to feel overwhelmingly pressured and disclosed that she had PTSD, that it had caused her to hurt herself in the past, including biting herself or pulling out her hair, but that she did not come to work if she was experiencing symptoms, and was fine after taking time off work. J.D. further claimed that the director strongly urged her to see the staff psychiatrist despite J.D.'s insistence that she had her own doctors and treatment, and that the director repeatedly asked her if she had any other diagnoses, to which she did not respond, and if she had engaged in violent behaviours, to which J.D. responded in the negative.

Feeling extremely upset and humiliated, J.D. accepted the director's offer to take the rest of the day off and texted her husband to come to pick her up. When her husband did not immediately respond, the director continued to insist that someone should take her to the hospital to be assessed. J.D. claimed that she felt that she had no choice but to agree. At the hospital, J.D. was examined by a doctor who determined that her situation was not acute, that she had adequate resources available to her and coping mechanisms in place, and sent her home. After leaving the hospital, J.D. left a voicemail with the director stating that she was very troubled about their meeting and that she was not ready to return to work, to which the director did not respond.

According to the director, however, she had decided to meet with J.D. after receiving anonymous notes regarding concerns about J.D.'s work performance and Q.W.'s suggestion to "check in" with her. The director claimed that J.D.'s body language and withdrawn presence at the meeting indicated that something was wrong and that J.D. told her that "she was okay considering that she came to work compromised." The director claimed that, when she questioned J.D. about being "compromised," J.D. told her that she had "a murderer inside of me," had considered cutting her throat, and had a dissociative personality disorder. She denied that J.D. mentioned anything about having PTSD. The director claimed that she suggested that J.D. go to the hospital as she was concerned that J.D. posed a safety risk to herself or others, and denied forcing J.D. to go to the hospital. Ms. Kean then advised Sandringham's office manager to take J.D. off the call list because she was on medical leave. Neither the director nor Q.W. contacted J.D. after she returned from the hospital to follow up.

On October 8 and 15, J.D. left messages with the director that she was ready to return to work, unaware that she had been placed on medical leave. On October 18, the director met with J.D. and advised her that she was required to provide a "fitness report" from a doctor who had been treating her on a long-term basis stating she was mentally fit to work at Sandringham. Although J.D. questioned the request, she nevertheless agreed and provided a note from her psychiatrist dated November 6, 2012. Although she was ultimately cleared to return to work on November 13, J.D. claimed that she did not feel welcomed and that it was clear that the director did not want her back. She did not return to work at Sandringham.

J.D. alleges that, based on either Ms. Kean’s knowledge or perception of mental disability, she was subjected to an intrusive interview, where she felt compelled to reveal private information about her past, and was thereafter subject to differential treatment based on Ms. Kean’s stereotypical views about J.D.’s mental health.

J.D. filed a complaint alleging that Sandringham Care Centre and Debra Kean discriminated against her in her employment, based on her mental disability or perception of her mental disability, contrary to s. 13 of the Human Rights Code.
 

Questions to be Determined and Findings

Was Mrs. Davis’ mental disability or the Respondents’ perception that she had a mental disability a factor in that adverse treatment? (YES)
 

Reasoning

Credibility was central to the case, in light of the markedly different accounts of the events, the British Columbia Tribunal found J.D. to be a credible witness, and the testimony of Q.W. and the director to be less so, characterizing the director's testimony, in particular, to be "vague," "self-serving," and, at times, "simply not believable." Specifically, The Tribunal did not accept that J.D. had told Q.W. that she had a "monster inside of her," finding it more probable that J.D. said she was stressed and said something about her emotional/psychological state that caused Q.W. concern. The Tribunal also did not accept that Q.W. did not inform the director of J.D.'s mental health issues when she asked the director to "check in" on J.D.

The Tribunal also found that J.D. had not called the director to thank her for her help, that the director had put J.D. on medical leave without her knowledge, that there was no medical evidence supporting this decision, and that the director did not welcome J.D. back to work readily.

The evidence establishes that Ms. Kean perceived J.D to have the mental disability of dissociative personality disorder, and her treatment of J.D. was guided by this misconception. This was incorrect and the evidence respecting J.D. having borderline personality disorder was insufficient.

J.D. had established a prima facie case of discrimination because she had a mental disability, namely PTSD and that she experienced adverse treatment in the form of humiliation being forced to call Q.W. and go to the hospital against her will, being placed on medical leave without her knowledge and losing work as a result, and ultimately losing her job. Finally, the Tribunal held that J.D.'s mental disability, and specifically the director's perception of J.D.'s disability, "was not only a factor but integral to" the adverse treatment:

Because of her stereotypical views about dissociative personality disorder, Ms. Kean determined that Mrs. Davis required immediate treatment and sent her to emergency in the middle of her shift and wearing her scrubs. Ms. Kean directed Mrs. Davis to call Ms. Wolf, even though Mrs. Davis had told her she had contacted her husband and needed to wait for him to call her back. Ms. Wolf immediately came to Sandringham to pick-up Mrs. Davis to take her to emergency. She checked-in with Ms. Kean and drove Mrs. Davis to emergency. She begged Mrs. Davis not to leave the hospital. (p. 305)

Also, the Respondents did not show any evidence of other attempts to approach the situation in a non-intrusive manner.

The Tribunal concluded that the intrusive questioning itself was both discriminatory conduct and an unreasonable approach to ensuring the reasonable safety of Sandringham residents and staff since there were not any performance issues. Therefore, the employer failed in establishing a bona fide occupational requirement and that J.D.'s complaint was justified.
 

Remedy

British Columbia Human Rights Tribunal Member Marlene Tyshynski allowed the complaint, ruling that the director's actions were discriminatory, and awarded J.D. $35,000 in general damages for injury to dignity, plus $784.89 in compensation for lost wages, and $1,539.98 for costs J.D. and her husband incurred to attend the hearing.
 

Nwagbo v. Li

Nwagbo v. Li

Summary

The respondent was the owner of Top Choice Tax Accounting Inc., a full-service accounting firm that had five employees. In October 2015, the respondent reached a two-year agreement with a U.S. based company, New Client Inc. (“NCI”), to participate in their Client Acquisition Program. Pete Borrelli, NCI Senior Account Executive, was responsible for providing advice to Top Choice on activities such as client recruitment, training, human resources and other operational matters.

The respondent hired the applicant on January 25, 2016, in the position of Client Service Representative (“CSR”). The CSR was responsible for conducting recruitment or marketing activities with prospective clients. The applicant began his employment with Top Choice on January 25, 2016. He signed a contract of employment on that same day outlining his roles and responsibilities, which included to make presentations to potential clients each week and attempt to secure a minimum of two new clients per week.

The applicant testified that during his recruitment interview and his first few meetings with the respondent, he told her he did not like conducting telephone cold calls, but that he was fine with attending in-person pre-set appointments and conducting in-person cold calls. The respondent’s testified that the applicant did not mention this during his interview.

The respondent trained the applicant by sharing with him her experience of what she knew of the Client Acquisition Program since Mr. Borrelli was not available to meet in person. The applicant testified that he never received a performance review. However, he spoke with the respondent regularly, often daily, and submitted weekly reports to the respondent.

The respondent testified that the applicant’s performance was very weak from the beginning. According to the respondent, the applicant would spend two to three hours a week at pre-scheduled meetings, but in his spare time would not engage in prospecting activities.

On March 4, 2016, the respondent asked for advice by email from Mr. Borelli about the applicant’s performance:

Dear Pete [Mr. Borrelli],

Thank you for sharing your thoughts. I had conversation with Steve [the applicant] about his duties to prospect. He said he hates cold calls. For the those reasons:

1. For phone cold call: he can not be on the phone for long as his ears hurt. He told me that the first a couple of days of video wearing headsets still ringing buzz sounds in his head till now.

2. (This is what I assumed) for in-person cold call, he is a big and tall African man. That may be a issue to many people for the stereotype.

So far, Steve has not making 2-3 appointments per week he should be getting on his own. […] (p. 22)

Mr. Borrelli replied with a couple of suggestions, and on March 5, 2016, the respondent forwarded the string of emails to the applicant.

The applicant testified that the March 4, 2016 email impacted him psychologically. He continued to attend work but said he lost sleep over the email, although he did not seek medical attention nor did he mention anything to anyone in the workplace.

The applicant was not performing to expected standards, which resulted in significant financial hardship for the respondent’s business. The applicant was not meeting the sales quota of recruiting two new clients per week and was bringing in less income than his remuneration. On April 17 the respondent terminated the applicant’s employment while he was still on probation.

On April 21, 2016, the applicant sent the following email to the respondent:

In an email you sent to Peter Borrelli on March 4, 2016, you wrote, amongst other things as follows: “(That is what I assumed:) for in person cold call, he is a big and tall African man. That may be an issue to many people for the stereotype.” The big and tall African man you were referring to is myself.

I have a couple of questions for you.

1. What is the stereotype you were referring to?

2. What issue or issues would people have with me being a big and tall African man? Are you suggesting that I am scary or that “people” would not deal with me simply because I am a “big and tall African man”?

This statement alone and on it’s own is racially discriminatory Beyond that, it is defamatory because you published it to Peter Borrelli - a third party.

Based on the foregoing, I am putting you on notice that unless I receive a cheque from for in the sum of $20,000.00 in redress for your unwarranted racial profiling and defamation, I will not only file a petition against you with the Human Rights Commission of Ontario, but will also file a claim for further damages against you in court.

The respondent testified that she perceived the April 21, 2016 email as blackmail and did not respond.
 

Questions to be Determined and Findings

1. Was the Applicant discriminated against on the basis of race during his employment at Top Choice? (YES)
 

Reasoning

1. It is indisputable that the respondent looked for advice from Mr. Borrelli because she was not happy with the applicant’s performance, and that the respondent she assumed the applicant did not engage in in-person cold calling.

The applicant never told the respondent that he did not like making in-person cold calls. The respondent explained that she assumed he did not make them because he had been “racially profiled” in the past and felt uncomfortable engaging in such activities. I find that the respondent’s perception of the applicant’s work performance, as described in the March 4, 2016 email, is based in part on stereotypical assumptions about the applicant because of his race. (p. 44)

The respondent presented evidence to indicate that the applicant’s performance was consistently weak before and after the March 4, 2016 email, and explained that she knew that Mr. Borrelli had never met the applicant and she was trying to explain to him why she thought the applicant was not doing in-person cold calls.

Additionally, instead of supporting and assisting the applicant so he could improve his performance, the respondent shared her stereotypical views with Mr. Borelli and also forwarded the offensive email to the applicant. “The incident is further aggravated by the views having been made in writing in an email exchange that other employees had access to.” (p. 46)

The judge found probably that the respondent did not have the intent to discriminate against the applicant, but rather tried to find an explanation to his poor performance. However, the intent is not required to establish discrimination; rather the focus is on the impact or effect of the conduct. The Tribunal then stated:

The inference I draw from this, as well as all of the surrounding circumstances, is that the respondent’s perception of the applicant’s work performance was, in part, tainted by his race…The respondent inappropriately believed that the applicant could not perform the essential elements of his position because of his race and ultimately affected his performance. Since he was terminated because of his poor performance, I find that race was a factor in his termination. (p. 47)
 

Remedy

The Ontario Human Rights Commission determined that the respondent shall pay $2,500.00 to the applicant in monetary compensation for injury to his dignity, feelings and self-respect.

TP v. Ontario (Community Safety and Correctional Services)

TP v. Ontario (Community Safety and Correctional Services)

Summary

The Applicant has been employed by the Ontario Provincial Police (the “OPP”) since 1989 in various roles. Just before his departure from the workplace, he worked as a network administrator in the Investigation and Enforcement Bureau of the AGCO, where he was responsible for network and computer systems used by the Bureau.

At the time he was in charge of a big project and was expecting an audit as well. When was working on the refresh of equipment, he had been experiencing the return of medical problems he had occasionally dealt with in the past: problems with digestion, frequent panic attacks and sleeplessness. He says he translated every pain in his chest area as a heart attack and said the pain was intense enough to lose his breath.

On December 22, 2010, when he was close to completing the project, the applicant met with his supervisors. He was already in a bad state that morning as he had not slept the night before and had come into the office early. One of the supervisors testified that the applicant was reassured during that meeting that the audit was not related to his job performance. The applicant says that he, feeling overwhelmed, broke down during that meeting.

On December 30, 2010, he provided a doctor’s note indicating that he needed to be off work for a month. The respondents testified that the medical note did not provide any information relating to the applicant’s limitations or restrictions. Consequently, they requested more information. On January 12, the Applicant’s doctor provided another note stating that the applicant continued to be off work for four weeks.

The doctor also filled out a form sent by the Respondent where she describes the nature of the Applicant’s medical leave. In response to a question about the applicant’s limitations and restrictions and his prognosis for return to work to his position, she answered that he was “limited by decreased concentration, should improve with treatment”, and that no accommodation was available but that the situation could improve if the Applicant’s commute time were shorter.

Following submission of the materials from his doctor, the Applicant had a conversation with Ted Clark, OPP Sargeant, which caused him great upset since Clark told him that he had discussed the applicant’s situation with Fred Bertucca and Laura Young, and that ‘they could not see anything wrong with him.” Additionally, Clark inquired more about the nature and reason behind his medical leave and said that the Applicant’s doctor did not know how to fill out forms.

The Applicant said Ted Clark told him that he could extend his time off to January 31, 2011, but after that would have to cut his pay off. The impact of this conversation on him was devastating. He was extremely concerned about losing his income and had a panic attack while on the phone.

After the troubling phone call, he immediately phoned Laura Young, Human Resources Advisor, who reassures him that his income was not in jeopardy and asked that he get his doctor to fill out the form in a more detailed fashion. She testified that it was the practice of the organization to send out requests for additional information about limitations and restrictions if a person was absent for more than just a few days, so she did not disagree with Ted Clark’s decision to send the forms out for the applicant’s doctor to fill out.

The applicant continued to provide notes and forms from his doctor. In total, Dr. McComb provided six handwritten notes between December 29, 2010, and March 30, 2011. Also, she provided three completed forms between January 12, 2011, and June 12, 2011, at the request of the respondents.

The Applicant said that Clark did not believe he was off work due to an illness and that he heard from friends and colleagues that Ted Clark was making cryptic and disparaging remarks about him when people asked where he was and when he would be returning.

The applicant filed a WDHP complaint in which he alleged that he had experienced harassment. The WDHP complaint was found not to be substantiated in May 2011. The applicant was upset by the results and took issue with the fact that the investigator did not interview key witnesses.

Later on, the Applicant was not reporting to Clark anymore, and his physician had suggested the possibility of him working from a location closer to home. This proposal was denied since, to provide IT assistance to people in the Bureau, the applicant would need to be in the main office location where most employees from the field would come for assistance. By August 10, 2011, his doctor pronounced him unable to return to work at that time and requested psychiatric consultation and follow-up.

The situation with his employer has reached and remained at an impasse, and the applicant also has litigation pending against the insurer that stopped paying his LTIP benefits.
 

Questions to be Determined and Findings

1. Did the Applicant experience harassment when he first went off work? (YES)

2. Did the Applicant experience reprisal? (NO)

3. Did the Respondent meet its duty to accommodate? (YES)
 

Reasoning

1. The Tribunal admitted that employers can request additional information from an employee if necessary. However, Clark’s actions amounted to harassment.

An unnecessary number of letters were sent immediately upon the commencement of the applicant’s leave, with unreasonable deadlines set for compliance not in accordance with the employer’s own policies, including one which threatened to interrupt the applicant’s income source, despite clear documentation that showed he was clearly off work for medical reasons and under a doctor’s care, as well as advice to the contrary from Laura Young. (p. 63)

Clark’s conduct was clearly so concerning to Laura Young, the human resources adviser, that she took the step of consulting with others in the Bureau to ensure that they were made aware of the situation.

The Tribunal also found that the employer bears some responsibility as a result of its failure to take meaningful action despite knowing the situation. Therefore, the respondent employer effectively condoned the conduct that amounted to harassment.

2. The Tribunal was unable to conclude that the actions of the respondent employer or any of the personal respondents amount to reprisal because of lack of credible evidence.

3. Although the Applicant’s doctor suggested that reducing commuting time would improve his health status, the psychiatrist with whom the applicant consulted in October 2011, Dr. Rodway-Norman, opined that he should be able to recover and that when he did, he should return to “an alternative placement.” This report appears to suggest that the issue concerning him was not an inability to travel to the workplace but the damaging effect of the particular work environment on the applicant’s health.

The Judge further stated:

Although the applicant argued that he could do many of the tasks that are essential to his job remotely given the nature of the enterprise, I am satisfied that proximity to the servers and being available for day-to-day interactions in person with the users of the IT system were critical, and it would not have been possible for the applicant to perform those essential tasks relating to his job while working from a location other than the Bureau’s main office. I am satisfied on the evidence that his stated inability to drive or travel safely would have made it impossible for him to conduct the tasks central to the job. (p. 103)

Accordingly, the Tribunal found that the applicant had not established that the respondents discriminated against him on the basis of disability by failing to accommodate him in 2011 when he still contemplated a return to work but requested the ability to do so remotely.
 

Remedy

Tribunal awarded $25,000 in damages for injury to dignity against the OPP, and $2,500 against Clark personally, also ordering Clark to complete an online human rights training module.

Misetich v. Value Village Stores Inc.

Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (CanLII)

Summary

The applicant, Tonka Misetich, alleged discrimination with respect to employment because of family status. In this case, the proposed change to Tonka’s work schedule at Value Village, to accommodate her physical restrictions, prohibited her from taking care of her eldercare responsibilities.

The applicant commenced employment with the respondent in April 2006 at its Niagara Falls store working as a part-time sales clerk working at the front of the store in retail. During this time, the applicant worked days, evenings and on-call. Around June 2010, the applicant moved to a production position in the back of the store and started working straight days, Monday to Friday.

In January 2013, the applicant developed a repetitive strain injury in her left hand and arm. In order to accommodate this disability, Value Village offered temporary, modified duties that would fit her physical restrictions. She would go back to the retail floor and her schedules would also change to rotating shifts. 

The applicant declined the respondent’s offer of modified duties on January 16, 2013. She returned the January 10, 2013 letter to the store manager with a hand-written note which stated the hours would place a hardship on the applicant because she prepared evening meals for her mother. Misetich also sent letters stating that she was only available to work regular hours Monday-Friday.

On June 28, 2013, the store manager sent the applicant a registered letter regarding her failure to provide medical evidence to support her ongoing absence from work, as well as her failure to provide medical evidence to support her request for accommodation as a result of her eldercare responsibilities. She was asked to submit a letter indicating that she was: a. the primary caregiver for her mother, b. the parent requiring elder care is unable to safely perform the duties, c. there is no one other than herself who is able to provide the care, and d. she has taken all reasonable steps to self-accommodate and/or resolve the conflict created.

The applicant responded in writing to this letter on July 4, 2013, stating that the request of information about her mother’s need was “insulting and offensive” (para. 13), and refused to share medical and confidential information. The respondent requested the applicant provide a physician’s statement to validate her continued absence from work. It was not until August 19, 2013, when Misetich’s family doctor confirmed that she was only able to work regular hours.

The claims manager did not accept the statement because she believed the doctor was the applicant’s doctor, not the mother’s doctor. The claims manager requested evidence, other than from the applicant, that there were no reasonable alternatives available to care for her mother beyond 5 p.m.

In the August 30, 2013 letter, the applicant was advised that her failure to cooperate with the respondent’s directives may be viewed as insubordination and could put her employment in jeopardy.

The applicant did not work her scheduled September shifts and on September 16, 2013, the store manager sent the applicant a third registered letter requesting medical documentation. On September 24, 2013, the applicant provided a handwritten note advising them that her doctor was on vacation until September 30, 2013, and that she was not abandoning her position. On October 1, 2013, the store manager terminated the applicant’s employment for job abandonment. The same day, the applicant attempted to provide a doctor’s note but it was dismissed by the store manager.
 

Question to be determined and Findings

Did the complainant establish a prima facie discrimination based on family status? (NO)
 

Reasoning

The Court used the case Federal Court of Appeal in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (“Johnstone”) as a test to assess the potential discrimination, even though the test of legal responsibility is difficult to apply in the context of eldercare.

The issue discussed in this case, started on January 10, 2013 when the respondent offered a change of position to accommodate the applicant’s disability request. Upon receiving the proposal, the applicant asserted the change in hours would create a hardship for her because she had eldercare responsibilities and prepared evening meals for her mother. Over the next ten months, the respondent requested medical proof from the applicant regarding her mother’s care.

The applicant provided little information to the respondent because she believed the respondent was not entitled to private information about her mother. The applicant was angry that this information was even requested. In January 2013, she told the respondent that she prepared evening meals for her mother. In February 2013, she told 2016 HRTO 1229 (CanLII) that she cared for her 86-year old parent. In July 2013, she advised the respondent that she would not share her mother’s confidential and private medical information. (para. 61)

Further, the applicant even advised her doctor to not to disclose medical or personal information to Value Village. Given the lack of details regarding Ms. Misetich’s eldercare needs, the Court considered that:

The applicant’s ability to provide evening meals for her mother was not adversely affected by the requirement to work days, evenings and weekends. The applicant could have worked these shifts and provided evening meals for her mother, when required, in the same way that she was able to provide a meal in the middle of the day. (para. 64)

For these reasons, the applicant failed at establishing a prima facie case of discrimination. And even though she provided more evidence during the hearing to support her case, she failed in doing so during the accommodation process with Value Village.

Had the applicant provided this information to the employer, the applicant may have been able to establish that the proposed change in hours constituted adverse treatment on the basis of her family status. Had she done so, the respondent may have been obligated to accommodate the applicant’s eldercare responsibilities up to the point of undue hardship. That accommodation may have been to permit the applicant to work days in production (if there were tasks the applicant could physically perform) or in retail. However, all of this is theoretical because the applicant did not communicate this information to the respondent. (para. 72)

 

Result

The Court determined that the termination of employment was not discriminatory in nature and the application was dismissed.

United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc

United Steelworkers of America, Local 9548 v. Tenaris Algoma Tubes Inc.

Summary

The company manufactures tubing for the oil and gas industry. The grievor started working for the company in 2010. At the time of his termination he was a crane operator. He started work at 3:00 p.m. on February 24, 2014 and was working with X. She was the stocker and her job involved signaling D while he operated the crane.

The grievor claimed that X was not following procedures and that he would not continue working until someone spoke to her. George Vincintini, the Team Leader, spoke to X and old her that she needed to follow procedures and that if she was having a problem with D she could come and see him.

After the shift, sometime between 11:00 p.m. and 1:00 a.m., D went on Facebook and complained about his “stocker”. Some work colleagues who were Facebook friends responded. D did not identify X by name but referred to a distinctive physical characteristic and said that would tell them who she was. Another employee, P, then suggested performing a physically aggressive act with that characteristic. D agreed with the comment and added the further suggestion that a violent and humiliating sex act be inflicted upon X. He used a slang term for the act. P wrote “hahaha” and said that D was funny. The grievor then mentioned a cruel nickname associated with X’s personal characteristic.

Someone advised X about what had been said about her on D’s Facebook page and the next day she complained to Luke Krmpotich, the Industrial Relations Coordinator, and Jessica Amato, the Industrial Relations Analyst. Mr. Krmpotich and Ms. Amato went on Facebook and were able to see the grievor’s comments about X on his page even though they were not “friends”. Mr. Krmpotich said that anyone who went to D’s profile would, therefore, see the posts.

The grievor met with Mr. Krmpotich, Ms. Amato and Rod Barill when he came into work on February 25. Mr. Alexander and another union representative, Lucas Bordin, were also present. The grievor apologized and said that he was embarrassed and had deleted the posts. He also said that he would like to apologize to X. Mr. Krmpotich said that would not be a good idea at that time because she was very upset. The grievor said that he did not want to lose his job

and that it would never happen again.

The company conducted an investigation and then terminated the grievor’s employment on March 3, 2014. The union filed a grievance on March 3, 2014. A Step 3 meeting was held on March 17, and the grievor provided a letter of apology to the company. He also gave them one to pass on to X.

Mr. Krmpotich testified that they looked at the grievor’s record at Step 3 to see if

there was anything in there that would compel them to reinstate him. However, there was prior discipline on the grievor’s record and, given the seriousness of the offence, they decided not to reinstate him.
 

Questions to be Determined and Findings

Do the grievor’s comments on Facebook constitute a just cause for termination? (YES)

Reasoning

The relevant facts of this case are not in dispute, since both parties agreed that the grievor did post comments about X on Facebook, he did not used any privacy settings since Mr. Krmpotich and Ms. Amato could read them, and he did not delete his comments as soon as he made them but left them up for 10 hours.

The most serious aggravating factor in this case is the nature of the comments. They were vicious and humiliating. The company has characterized the posts as threatening. It would certainly be reasonable for a woman reading such an interchange between male co-workers to feel threatened. The grievor suggested that X should be sexually assaulted.  (p. 13)

Additionally, the Union claims that since  X had not been following procedures the night before and the company had not responded appropriately to his complaint, the grievor was concerned about his safety, which led him to acted  uncharacteristically and post the comments on his Facebook. To this, the Tribunal stated: “X did not provoke the grievor to say the things that he did about her. Making nasty comments on Facebook is not an acceptable response to frustration with a co-worker.” (p. 14)

The union also suggested that that fact that the grievor did not use X’s name is a mitigating factor. However, the grievor described X by referring to a personal characteristic and a nickname. Those references could only have been made to hurt her and make her identifiable to her co-workers.

The grievor’s offence was visible on his Facebook for many people to see for many hours. Therefore, admitting he had posted the comments was not the act of accountability.

In this case, the grievor knew that he was sharing his views about X with all of his Facebook friends, including his coworkers and apparently anyone else who went to his page. He knew co-workers had seen the first post because they responded to it but he continued anyway. Therefore, he had to expect that X would find out about them. In fact, the only reasonable conclusion to be drawn is that he must have intended for her to find out about them. This is not “off duty” conduct because it was directed at poisoning X’s work environment. (p. 15)

The company is responsible under the Human Rights Code, the OHSA and the collective agreement for maintaining a workplace free of harassment and, in these circumstances, reinstating the grievor would be contrary to that goal, even if he were assigned to a different shift from X. Therefore, the discharge was justified.
 

Result

The grievance is denied.