Singh v. Domglas Ltd.
1980-12-29
Ontario Board of Inquiry
CHRR Doc. 81-013
Mr. Avtar Singh Complainant
v.
Domglas Limited Respondent
Hearing Dates: May 28, 29, 30, September 18, October 30, 31, November 6 and December 8, 1980
Date of Decision: December 29, 1980
Place: Toronto, Ontario
Before: Robert W. Kerr, Ontario Board of Inquiry
Appearances by: S.L. Goldenberg, Esq., Counsel for the Ontario Human Rights Commission and Mr. Avtar Singh D.K. Gray, Esq., Counsel for Domglas Limited
RES JUDICATA AND ESTOPPEL — prior arbitration proceeding — BOARDS OF ARBITRATION — prior arbitration decision and its effect on human rights complaint — LIABILITY — mitigation of effects of discrimination — employer/corporate liability for employee — RACE, COLOUR AND PLACE OF ORIGIN — racial slurs and harassment by co-worker — employment terminated
Summary: The board of inquiry can proceed under the Ontario Human Rights Code despite prior consideration of the case by an arbitration board. Without the consent of both parties, the board is not empowered to take a view of the premises.
Evidence does not support the Complainant's allegation that race was a factor in his dismissal from employment (s. 4(1)(b)). While the Complainant did suffer racial abuse by his fellow employees the Respondent in this instance is not legally responsible for the abuse.
DECISION
1The complaint in this case was filed by Mr. Avtar Singh on February 23, 1978, following his dismissal from employment by Domglas Ltd. on February 2, 1978. This Board of Inquiry was appointed by the Honorable Robert Elgie, Minister of Labour, on July 6, 1979 to hear the complaint. The Board sought and received the cooperation of the parties and their counsel in setting the hearing for a mutually convenient time, but regrettably a series of circumstances combined with this cooperative approach to produce an extremely protracted timespan between the date of the Board's appointment, the commencement of the hearing on May 28, 1980, and the final conclusion of the hearing on December 8, 1980. The hearing was held in Toronto over 8 days, May 28, 29, 30, September 18, October 30, 31, November 6 and December 8.
2Mr. Singh is of East Indian origin. His complaint alleged violations of sections 4(1)(b) and 4(1)(g) of the Ontario Human Rights Code, R.S.O. 1970, c. 318, as amended, on the grounds of race, creed, nationality, ancestry or place of origin. While the nature of his complaint of dismissal contrary to section 4(1)(b) of the Code was apparent on the complaint form, the exact nature of his complaint as to discriminatory terms and conditions of employment only became clear during the complainant's testimony before the Board. Specifically Mr. Singh was complaining that he had been subjected to racial slurs in the workplace and that management personnel had turned a deaf ear to his requests that it take steps to eliminate this condition.
3Before I deal with the merits of this case, there are two issues of a preliminary nature which I want to deal with because they were extensively argued before me. While I have already given an oral ruling on one of these matters to the parties during the hearing, the matter is sufficiently important that I think my decision should be recorded here. On the other matter, I reserved my decision until the end of the case.
The Effect of a Prior Arbitration
4The first preliminary issue was raised at the beginning of the hearing as an objection to my jurisdiction on the basis that the matter was res judicata. The complainant's employment with the respondent at the time of his dismissal was covered by a collective agreement with the United Glass and Ceramic Workers of North America, Local 260, (Fourth Collective Agreement, December 31, 1977 to December 30, 1979). This Agreement contained a fairly standard clause, relating to just cause for discharge (Clause 4.01) and a fairly standard anti-discrimination clause (Clause 5.01). A grievance against the complainant's dismissal was filed under the Agreement on February 3, 1978. It was taken to arbitration with a hearing on October 13, 1978 before Messrs. Kevin M. Burkett (Chairman), W.J. McNaughton (Company Nominee) and Ralph Currie (Union Nominee). In those proceedings, the respondent claimed there was just cause for the complainant's dismissal in that he had deliberately struck and injured another employee in a work-related incident. In an award dated December 18, 1978, the arbitration board unanimously concluded that there had been just cause for discipline, but by a majority reduced the penalty to an eight-week suspension in exercise of their power under section 37(8) of the Labour Relations Act, R.S.O. 1970, c. 232, as amended.
5After hearing lengthy argument, I concluded that in these circumstances res judicata was an evidentiary issue, rather than a jurisdictional one. While normally this is an issue which it is expedient to deal with on a preliminary motion, I concluded that I should not do so in this case for several reasons. First, since there did not appear to be a prior ruling on the effect of a prior arbitration award on proceedings before a human rights tribunal in Ontario or Canada, the issue was one of first impression and should, therefore, only be ruled upon after full consideration, and in light of the entire case. Secondly, since the arbitration award did not on its face deal with the issue of discrimination, I would not be in a position to discharge the obligation in section 14c(a) of the Code to decide whether there was a contravention of the Act unless I heard further evidence. Thirdly, since the complainant was ready to proceed with his evidence, and the matter had already been long delayed, it would be more convenient to proceed with the taking of evidence, rather than adjourn pending a decision on the preliminary motion. While the third consideration ceased to operate at the conclusion of the first three days of the hearing, I decided that, particularly in light of the first consideration, I should continue to reserve my decision until the end of the case.
6Mr. Gray contended that the arbitration award should be regarded as a final and complete resolution of the matter in the strict sense of res judicata. Mr. Goldenberg, on the other hand, contended that res judicata did not apply because the fights were different since the Code, and not the Agreement, was involved. In addition the parties, other than the respondent, were different since the Commission and the complainant were the other parties before me, while the union was the other party before the arbitration board. Mr. Goldenberg suggested that I should adopt the approach of the United States Supreme Court in Alexander v. Gardner-Denver Company, 415 U.S. 36 (1974). In that case it was held that, because of the important statutory mandate of the courts in dealing with employment discrimination, prior arbitration awards should be treated only as some evidence in human rights proceedings before the courts. They should in no way limit the obligation of the courts to conduct a trial de novo on the merits of the case.
7My conclusion is that proper treatment of the arbitration award in cases such as the one before me falls between these two extremes. Under section 37(9) of the Labour Relations Act, an arbitration award is binding upon the employer and the employees affected. Unless, therefore, the award is set aside by the courts, the employee cannot make a claim against the employer which is contrary to the award.
8While the Commission is another party not bound by the award in this fashion, the Commission's status in the matter derives from the complaint under section 13(1) of the Code.
9If the party filing the complaint has no basis for the complaint because of an arbitration award, then I do not see how the presence of the Commission as a party can add anything to the matter. The Commission has, of course, the option of initiating a complaint under section 13(3) of the Code, and it should do so if it does not wish to be bound by the rights between particular complainants and respondents.
10Even if I am wrong in holding that the Commission is bound in this way by the origin of the complaint, the courts of Ontario have recognized a broader principle that one party who identifies its interest with that of another, as the Commission does by proceeding on the complaint of the complainant, is bound by an estoppel as to issues already adjudicated between that other person and parties opposed in interest: Nigro v. Agnew-Surpass Shoe Stores et al. (1977), 1977 CanLII 3406 (ON HCJ), 18 O.R. (2d) 215 (H.C.), affd., (1977), 1976 CanLII 692 (ON CA), 18 O.R. 714 (C.A.). Whether the Commission is bound by the award for the purposes of a complaint under the Code, or merely estopped, the effect is the same.
11This, however, does not dispose of the matter for the rights created by the Code may still be separate from those decided by the award. The rights dealt with by an arbitration award arise under a collective agreement. The rights before a human rights tribunal, on the other hand, are created by statute.
12I think it is appropriate to take certain policy considerations into mind in deciding whether these rights should in law be treated as distinct. To decide that they are separate on a purely legalistic basis would create a potential problem. Since rights under an agreement and under the Code are adjudicated by separate systems, that is, by arbitration under the agreement and by a board of inquiry under the Code, it would be conceivable that two conflicting results might be produced in a single situation. It is undoubtedly more conducive to respect of our overall legal system if such a situation is avoided.
13In the United States, where very limited weight is given to arbitral decisions in human rights cases, labour arbitration is a wholly voluntary matter. In Ontario, however, parties to a collective agreement are compelled by law to establish an arbitration procedure. (In most other provinces, the parties are virtually compelled to an arbitration procedure since they must adopt it in the absence of a satisfactory alternative.) This clearly places our arbitration boards in a position deserving greater respect than such boards in the United States.
14On the other hand, under the Code in Ontario, the parties to a hearing before a board of inquiry are entitled to an appeal from the decision of the board to the courts. While the decision of an arbitration board may be taken to the courts as well, the courts can only review the decision on a more limited basis than is involved in an appeal. If a board of inquiry were to be bound by the decision of an arbitration board because the rights involved are treated as the same, then either the right of the parties to appeal the decision would be effectively nullified since the arbitration award is not appealable or the arbitration award would effectively be made appealable through the board of inquiry's decision contrary to the normal immunity of such an award from appeal. If the rights are treated as different, this dilemma does not arise.
15Another consideration is the general policy of avoiding excessive legal proceedings which underlies the rules of res judicata and issue estoppel. It has been established that discrimination can vitiate a claim of cause for dismissal: MacDonald v. 283076 Ontario Inc. (1979), 1979 CanLII 1947 (ON CA), 26 O.R. (2d) 1 (C.A.). Since a board of inquiry has no jurisdiction to enforce rights other than those arising from unlawful discrimination, it would appear that an arbitration board is in a better position to dispose of an entire dispute than is a board of inquiry. This argues in favour of giving the widest possible weight to an arbitral award in order to encourage the full litigation of such issues before arbitrators, and to avoid the less complete adjudication of a board of inquiry.
16In my view the appropriate resolution to these conflicting considerations lies in the American approach, not in the case of human rights matters, but in the case of other labour relations matters. The human rights precedent in the United States is not appropriate under Ontario law because the human rights tribunals (the courts) enjoy a higher status and arbitration a lower status respectively than boards of inquiry and arbitration under Ontario law. Relatively speaking, however, in the United States System the comparative positions of the National Labour Relations Board and arbitration are very similar to the comparitive positions of boards of inquiry under the Code and arbitration. Both the National Labour Relations Board and boards of inquiry are tribunals established by the state with obligations to enforce legal rights in a specialized area subject to regular access to the courts to review their decisions. Arbitration in both systems is a legally favoured (albeit entirely voluntary in the American System), privately established tribunal which is relatively immune from review by the courts. While the addition of section 37a to the Labour Relations Act has increased the role of the state in the establishment of arbitration boards in Ontario, in my view this merely increases the respect which other state-established tribunals owe to arbitral decisions and makes the approach set out below even more appropriate.
17The approach of the National Labour Relations Board when a case before it has already been subject to arbitration was established in Spielberg Manufacturing Company, 112 N.L.R.B. 1080 (1955), and received perhaps its most thorough exposition in Collyer Insulated Wire. 192 N.L.R.B. 837 (1971). It was endorsed by the Supreme Court in Carey v. Westinghouse Electric Corporation, 375 U.S. 261, at 270–71 (1964). Under this approach, the Board may, in its discretion, defer to an arbitral award if it is satisfied that the arbitration procedure was fair and regular, all parties are bound, and the decision is not clearly repugnant to the purposes and policies of the statute. In relation to the last factor, one concern is whether or not the award has actually dealt with the principal issues raised by the statute. If it does, the Board is inclined to defer: National Radio Co., 205 N.L.R.B. 1179 (1973).
18Such an approach accommodates public interest in enforcement of the statute with appropriate respect for the private relationship of the parties through the exercise of the tribunal's discretion. If statutory rights have been ignored, the tribunal is free to intervene. On the other hand, the tribunal can avoid unnecessary relitigation of issues by reviewing on a preliminary motion whether it will defer to the arbitral award. While this does not prevent the complainant-grievant from commencing multiple proceedings, there is a substantial disadvantage in doing so. One only has a real chance at two hearings by splitting one's case, that is, taking proceedings under the Code with respect to the discrimination issue and under the collective agreement with respect to other issues. To split one's case in this manner is to weaken it and increase the risk of losing in both forums.
19While the control of the union over proceedings under the collective agreement may undermine the ability of the grievant to obtain a hearing of the discrimination issues through arbitration, the individual's opportunity to get a full hearing in that process is protected by the duty of fair representation under section 60 of the Labour Relations Act and the ultimate right of individuals directly affected by an arbitration award to appear on their own behalf: Hoogendoom v. Greening Metal Products & Screening Equipment Co., (1968) 1967 CanLII 20 (SCC), S.C.R. 30. These are better protections than absolute refusal by boards of inquiry to respect arbitration awards. Indeed under the approach suggested the board of inquiry would not respect the award if it concluded that the grievant did not have a fair hearing. It may be noted that this also accords with the rule of res judicata which does not apply in a case where the party presently claiming contrary rights was represented by another party in the previous proceedings and such representation was not fair: Sopinka and Lederman, The Law of Evidence in Civil Cases (1974), at 375.
20Since this approach recognizes that the rights being enforced in arbitration are legally separate from those under the statute, the dilemma created by the different relationship between the courts on the one hand and the arbitrator or the board of inquiry on the other is avoided. It is only the statutory rights, not the rights under the collective agreement, that are subject to ordinary appeal to the courts. While the possibility of practically conflicting results does occur, the object of deferral to the arbitral ruling is to limit such conflicts to cases where the arbitration award is unacceptable in light of the statutory rights involved.
21On the face of the arbitration award in this case, there was no consideration of the question of discrimination which is the only issue under the Code. In such a case, it is not appropriate for a board of inquiry to give deference to the arbitration award with respect to the statutory issues.
The Power of a Board of Inquiry to Take a View
22Mr. Goldenberg requested an order for the Board of Inquiry to take a view of the premises where the incident giving rise to the complainant's dismissal took place. The purpose of the view was to ascertain whether the conclusions drawn by management personnel concerning these events were reasonable. If these conclusions were not reasonable, this would support an inference of the alternative explanation that the management personnel acted discriminatorily. Mr. Gray objected that the Board had no authority to take a view since the express authority to inspect premises which boards of inquiry enjoyed by reference to section 30 of the Labour Relations Act had been taken away upon the enactment of the Statutory Powers Procedure Act, 1971, S.O. 1971, c. 47. Another matter in dispute, in the event a view was taken, was whether the view was evidence itself, or was simply an aid to the understanding of other evidence according to the rule in Chambers v. Murphy, (1953) 1953 CanLII 365 (ON CA), 2 D.L.R. 705 (Ont. C.A.).
23As I ruled verbally, I do not think the elimination from the Code of the former reference to section 30 of the Labour Relations Act resolves the issue. The power to inspect premises related to an investigatory role which tribunals like boards of inquiry under the Code were once conceived as having. Board under the Code have evolved into a fully adjudicatory role and the enactment of the Statutory Powers Procedure Act was the final step in this evolution. I cannot believe that the final repeal of investigatory powers was intended as any implied restriction on the adjudicatory powers of a board.
24That leaves, however, the question of whether a board has any power under either the Code or the Statutory Powers Procedure Act to take a view. The only relevant provisions are in sections 12(1) and 15(1) of the latter Act. These deal with the powers of a board to compel the production of evidence and to receive evidence. The power of a board to compel the production of evidence must be read in conjunction with Form 1 which was appended to the Act at its passage. It is clear that this provision contemplates, in the case of physical evidence, only such objects as witnesses can bring with them to a hearing. In the light of this provision, and in the absence of any other power to compel production of evidence, I concluded that I had no power to compel the taking of a view.
25The term used in section 15(1) to describe physical evidence that may be received is the same as the term used in section 12(1) to describe physical evidence that may be compiled, that is, "thing". This gives rise to an implication that the scope of both provisions is the same. However, "thing" is a very general term. Giving a remedial construction to the statute, I cannot believe that it was intended to deny to tribunals the power to take a view where such is desired jointly by the parties. On the other hand, in light of the fact that views are commonly conducted upon mutual consent, and in light of the practical complications involved in taking a view without such consent, I find nothing anomalous in the conclusion that a view can be taken with consent, but not otherwise. Moreover, I think a board might properly draw inferences from the refusal of a party to consent to a view if this was necessary to offset the inability of the other party to obtain production of evidence because of such refusal. This would seem to fall within the range of the general principle that a party bears the burden of proof with respect to evidence within its control.
26With respect to the evidentiary effect of a view, if taken, it is my view that under the express terms of section 15(1) of the Statutory Powers Procedure Act, it is evidence.
27Even if I had the power to compel a view, I would think it is discretionary, at least where other evidence is available as it was here. In this case, while I would have taken a view with consent of the parties, I would not have exercised any discretion to order a view without a consent. In light of the other evidence available, I think it unlikely that a view would have added much in the way of clarification. Any value was outweighed by the inconvenience that would have been involved in taking a view over objection.
28No submissions were made to me as to any adverse inferences to be drawn from the refusal of the respondent to consent to a view. In light of the assistance provided by respondent who supplied photographs and a blueprint of the site, I find no basis for drawing any such inferences.
The Issue of Discrimination
29Before I deal with the main substance of the complaint of Mr. Singh, it seems convenient to deal with a body of evidence that was tendered to show that the respondent has engaged in recent years in discriminatory hiring practices. Mr. Goldenberg submitted that a showing of such practices could give rise to an inference that discrimination was also the most likely explanation of the treatment of the complainant.
30Considering the difficulty inherent in providing discrimination, I concluded that evidence of this nature was relevant and admissible. However, since it is not directly relevant to the actual facts of the complaint, it must be treated with a great deal of caution. While the general burden of proof is a complaint under the Code is on the balance of probabilities, I think a board must be persuaded on more than the balance of probabilities that one form of discrimination occurred before it can conclude that on the balance of probabilities another rather different form of discrimination occurred. In light of this, I refused to admit several items of evidence tendered by Mr. Goldenberg, because they were the least reliable form of hearsay, that is, anecdotes which the witnesses testifying had little or no interest in validating for their own purposes. Because of the virtual lack of any way of testing the credibility of such evidence, I could not have given it any weight such as would assist in supporting a finding of discriminatory hiring practices sufficient to draw the further inference that the respondent was discriminatory toward existing employees. In view of the highly prejudicial nature of this evidence, therefore, I declined to admit it.
31The evidence which I did allow with respect to hiring practices consisted of an analysis of the respondent's seniority list to show the ratio of East Indians among those employees originally hired in each calendar year, and some personal experiences of applicants of East Indian origin. The problem with all of this evidence was that it was highly inconclusive. There was no real standard against which to assess whether the treatment of East Indians was discriminatory. Even if the numbers on the current seniority list are representative of original hires, which is not necessarily the case, it is impossible to determine if the number hired is prima facie discriminatory or entirely reasonable unless one knows the ratio of applicants, or of potential applicants in the work force, or of some other relevant control group. The experiences of individual applicants are of little assistance unless either the parallel experiences of other applicants are shown in the same manner or the individual cases are themselves further investigated to test whether there may be other explanations.
32If the complaint before me had been one involving discriminatory hiring practices, I am doubtful that a finding of discrimination could have been supported by the evidence before me on this issue. It was certainly insufficient to support an inference that the respondent probably engaged in other forms of discrimination.
33With respect to the complainant's own case, the evidence is rather more difficult to assess. In assessing it, I propose to deal in turn with each of the two branches of the complaint.
34With respect to the complainant's dismissal, he was the third employee dismissed within a short period of time for an alleged physical assault upon another employee in a work related incident. However, his was the first case of such a dismissal of an employee with a relatively clean previous record. Prior to these three dismissals, the respondent had merely suspended employees in such cases. The two prior dismissals arose out of a single incident and it appeared that management personnel had engaged in a great deal of soul-searching prior to those dismissals. In the case of the complainant, however, the decision to dismiss was made rather quickly.
35A great deal of the evidence adduced by the Commission was directed to raising doubts as to whether the alleged assault could actually have occurred. From this evidence, the Board was asked to conclude that the action of management personnel in the matter could not have been based on any reasonable belief that the assault had occurred, and that inferentially the real reason was the complainant's ethnic background. The complainant seems firmly to believe that he did not commit the alleged assault, and some of the evidence did indeed raise doubts as to whether the assault did in fact occur. For example, the blow allegedly struck by the complainant was said to have involved a striking of another employee on the leg by a metal pipe which one might expect to have been somewhat oily, even at the dry end. Medical evidence indicated that the injury which the other employee clearly suffered would have been almost crippling. However, in an examination of the other employee's pants shortly after the blow was allegedly struck, a supervisor did not observe any mark, and the other employee was observed for approximately an hour after the incident without any sign of being crippled.
36From the evidence of the complainant and the psychiatric evidence of Dr. Bulter, it appeared that it might be helpful to the complainant if a decision were reached which either vindicated the complainant's own belief that he never committed the alleged assault or else persuaded him that he had committed it. Regretfully, this Board cannot provide such a decision. It may be that the other employee was injured in some other way and the complainant was indeed wronged. It may be, on the other hand, that the complainant suffered a temporary blackout and believes that he never struck the other employee because he was not conscious of doing so.
37The effect of the arbitration award with respect to the alleged assault would have to be taken into account if this issue were relevant to the decision of this Board, but it is not. I am only concerned with whether, because he was East Indian, the complainant was treated differently than another employee would have been in the same circumstances, that is, differently than an employee who was accused, whether rightly or wrongly, by another employee of having committed a physical assault. If this accusation was in fact false, that was the other employee's doing, and not the doing of the respondent. If he did not commit the alleged assault, the complainant has no doubt suffered an injustice at the hands of the arbitration board which heard his grievance. The possibility that arbitrators can make mistakes is one of the weaknesses employees have to live with in the recognition that this system is better than one in which it does not matter whether an employee has been dismissed for good reason since the employer is entitled to dismiss for no reason at all. In any event, the human race has yet to create a system which ensures perfect justice.
38In so far as the complainant was dismissed for a first incident of assault with a relatively clean prior record and with a minimum of study of the policy implications by management personnel, his treatment was different from the closest comparisons available, that is, the cases of others who actually committed physical assaults. The respondent, however, explained this difference on the basis that it had just adopted a more stringent policy with respect to such cases in an effort to stop acts of violence in the plant. Under this policy, prior records were not relevant, so that it was only coincidental that those previously dismissed under the policy had poor records. The reasons for the extensive review of the first two cases of dismissal were that this was the first occasion on which the respondent had actually to decide whether the threat of dismissal should be implemented in practice, and that one of those dismissed was a management level employee, creating special problems as to the implications of dismissal upon morale. The respondent claimed that the union had been apprised of this policy and, Mr. Joseph, the President of the union testified to confirm this.
39There are two apparent deficiencies in the evidence concerning this policy tendered by the respondent. First, there was no documentary evidence of this policy. While no evidence was led as to whether it would be normal practice for the respondent to deal with such matters verbally, it did appear that there was a normal complement of bulletin boards in the plant. Indeed Mr. Joseph testified that the policy was posted on the bulletin board. This makes the lack of a written record appear somewhat strange. Secondly, although the respondent claimed that the first two dismissals were in implementation of this policy, company documentation in relation to these dismissals which was filed in evidence contained no mention of such policy. Again, if such a policy existed, it seems somewhat strange that it was not mentioned.
40I am compelled to the conclusion that the respondent had not, prior to the complainant's dismissal, formulated a firm policy of dismissal as the automatic penalty for any act of physical violence on the job. On the other hand, I am not inclined to altogether discredit the testimony of Mr. Joseph and Mr. Bergeron, the respondent's other witness, concerning such a policy. I conclude that such policy was indeed threatened by the respondent and discussed with the union, but that management personnel had still not firmly settled upon it. To the extent that Mr. Bergeron suggested otherwise, I think that this was an interpretation of events induced in the intervening period by the pressure of having to explain actions which occurred some three years ago.
41The fact that the respondent had no firm policy on dismissal when it dismissed the complainant goes directly only to the issue of cause for dismissal. That was a matter for the arbitration process. It is of concern to me only to the extent that it may justify an inference that the real reason for the dismissal of the complainant was not the alleged assault, but the fact that he was East Indian.
42It is a perfectly human trait to become more convinced of the rightness of one's actions with the passage of time, particularly where, as in this case, one is called upon to defend those actions on more than one occasion. Some slight exaggeration of the justification of one's actions in these circumstances does not mean that the justification lacks credibility once the exaggeration has been eliminated. I conclude that the principle reason for the respondent's action in dismissing the complainant was a developing policy of dismissal for actions of physical violence such as that alleged against the complainant.
43This may have been unfair to the complainant, but it was not a violation of the Code unless the complainant's East Indian origins were also a factor. I am persuaded that they were not for two reasons. First, two other employees of different origins had been dismissed in the most recent similar incident. Secondly, during the incident giving rise to the complainant's dismissal, the other employee provoked the complainant with racial slurs and I am satisfied that the company imposed some discipline as a result. While Mr. Goldenberg, raised questions as to the adequacy of such discipline and the promptness with which it was imposed, it appears that such discipline was unprecedented for the respondent. In light of this I think it was sufficiently prompt and any imposition of discipline was indicative of the good faith of the respondent.
44Although the decision to dismiss the complainant was made with some speed, I do not find this to be evidence of discrimination. A reasonable investigation was conducted prior to the decision. The information obtained from this investigation was a sufficient basis on which management personnel could reasonably concluded that the alleged physical assault had taken place. Having so concluded, they were within their rights to take action and leave it to the grievance and arbitration procedure to finally determine whether that decision was correct. Management personnel did continue their investigation after the dismissal, but this would be the normal course of events in preparation for proceedings under the collective agreement. The worst that can be said of the respondent's officials is that they proceeded with a lack of sensitivity to the possible perception of the complainant that he was the victim of discrimination. Such sensitivity, however, would have involved special treatment of the complainant in consideration of his ethnic background. The Code does not require that such special treatment be accorded.
45In summary, I find no violation of section 4(1)(b) of the Code in relation to the dismissal.
46With respect to the racial abuse which the complainant claimed to have suffered from his fellow employees, I am satisfied that such abuse did in fact occur. The evidence of Mr. Joseph that shop talk frequently takes this form confirms the complainant's own testimony. The area of dispute is whether or not the respondent is legally responsible for this abuse.
47It was recognized in Simms and Ford Motor Company of Canada Limited, Board of Inquiry (H. Kreever), June 4, 1970, that racial abuse of one employee by another can constitute a discriminatory condition of employment. The employer has greater responsibility for such conduct when it is carried on by supervisory personnel, but may also be responsible where ordinary employees are involved as well. The extent of the employer's responsibility depends on whether the employer has knowledge that such conduct is making employees feel uncomfortable and whether the employer takes appropriate steps to halt such conduct when it becomes aware of it.
48To the principles established by the Simms case, I would add that racial abuse is inherently discriminatory because it singles out persons on the basis of their race or ethnic origin. Thus, it is no defence that such abuse is indiscriminately being carried out at the same time in relation to employees of many different backgrounds.
49The racial abuse to which the complainant was subjected appears to have involved ordinary employees, and not supervisory employees. The evidence is in considerable conflict as to whether the respondent was aware of this abuse. The complainant testified that he had complained concerning the conduct of some of his fellow employees on several occasions and had applied for a change of shift on the grounds of these complaints. The basis of his complaints, according to his testimony, was drunkeness, smoking of marijuana, and racial abuse. The respondent's witnesses confirmed that Mr. Singh had made complaints and asked for a shift change, but only in so far as those complaints involved drunkeness and smoking of marijuana. There were also other conflicts in the testimony, for example, as to whether the complainant was willing to disclose the names of the employees in question. Although these conflicts are not relevant to the issues before me, they are troublesome because they suggest that either one body of testimony or the other was not credible.
50In the final analysis, I have concluded that the complainant's concern over racial abuse resulted primarily from the incident which led to his dismissal. The intensity of this concern, in my opinion, coloured his recollection of earlier events. Concern over racial abuse may well have been on his mind at the time of his complaints over the conduct of other employees. However, I am satisfied that he did not bring home this concern to management personnel at that time.
51There is no evidence before me that the respondent's management personnel knew that racial abuse was a problem within the plant prior to the incident leading to the complainant's dismissal. They may have been aware that such abuse was part of shop talk within the plant, but I do not think this sort of knowledge is sufficient to make them legally responsible to a violation of section 4(1)(g) of the Code. While shop talk of this nature is indeed regrettable, in order for the employer to become responsible, there must be something to show that it has become more than personal interplay between the employees. Where management personnel are not directly involved, it must be brought home to the employer that the situation has become recognized as a condition of the employment situation, and not merely as a personal matter between employees.
52I conclude, therefore, that there was no violation of section 4(1)(g) prior to the complainant's dismissal. By disciplining the other employee who engaged in racial abuse of the complainant at the time of that incident, the respondent also acted appropriately to discharge its responsibility to eliminate racial abuse on becoming aware that it had become a condition of the employment situation.
53Although I find that no violation of the Code occurred, it is apparent that at least some of the respondent's employees have perceived these events as discrimination based on Mr. Singh's ethnic background. This Board has no way of knowing how widespread such perception may be. It could be in the respondent's own interest to institute some sort of human relations program, particularly since the respondent could hardly rely on lack of relevant knowledge should similar complaints of racial abuse arise in the foreseeable future. Perhaps these proceedings may have served a useful purpose if by clearing the respondent of the allegations against it, they make possible efforts at improving human relations with no implication that this is a confession of having acted wrongfully in the past.
54For the reasons set out above, the complaint is dismissed.