Reid v. Russelsteel Ltd.
1981-05-19
Ontario Board of Inquiry
CHRR Doc. 81-040
Mrs. Pearlina Reid Complainant
v.
Russelsteel Ltd. Respondent
Hearing Dates: November 25–27, 1980
Date of Decision: May 19, 1981
Place: Toronto, Ontario
Before: Ontario Board of Inquiry, Peter A. Cumming
Appearances by: Ms. Janet Minor, Counsel for the Ontario Human Rights Commission and Mrs. Pearlina Reid B. Earle, Counsel for Russelsteel Limited
RACE, COLOUR AND PLACE OF ORIGIN — employment terminated
Summary: Mrs. Reid, a Jamaican-born black woman, was dismissed from her job as a keypunch operator after twenty months at Russelsteel. She alleged discrimination in her dismissal on the basis of her race and colour. Evidence did not support the charge. Although certain facts surrounding Mrs. Reid's dismissal were described as leaving "much to be desired," these did not involve racial discrimination.
DECISION
1This Board of Inquiry hearing involved two days of evidence, which included some twenty exhibits.
2The Complainant, Mrs. Pearlina Reid, of Downsview, Ontario, is a Canadian citizen, formerly of Jamaica, who is black. She has been trained as a "key-punch operator," is well-experienced and well-qualified in this regard, and described by the employer Respondent as "an average keypunch operator" (Evidence, p. 106).
3In January, 1977, in response to an advertisement, she applied for a position of key-punch operator with the Respondent, Russelsteel Limited, was interviewed and hired by the Respondent, Jim Traecey (the manager of "information systems" for Russelsteel Limited) and commenced work January 24, 1977 at the company's Concord, Ontario office. She remained so employed until October 13, 1978, at which time her employment was terminated.
4The company employs six to nine key-punch operators at its Concord office. A key-punch operator takes hand-written sales orders received from some eight branches of Russelsteel Limited across Canada. The operators punch and verify information being processed, for computer purposes (Evidence, p. 87, 88). It is clear that it is a boring task, described by Mr. Traecey as a "monotonous, mundane type of work," which perhaps explains why there was a very high turnover of operators at the Concord office of Russelsteel Limited. Mr. Traecey said that operators "lose their interest after a period of time" (Evidence, pp. 87, 140, 141).
5After she was fired, notwithstanding diligent efforts, Mrs. Reid was unable to obtain another job as a key-punch operator for some time, and it was apparent from her demeanor in giving evidence that she suffered a great deal of anguish in this regard. She tried very hard to get another job, was successful in getting some part-time work, and received some unemployment insurance benefits, but was unable to get another full-time job as a key-punch operator until November 19, 1979.
6The Complaint was filed October 18, 1978 on the basis of alleged violations of paragraph 4(1)(b) and/or (g) of the Ontario Human Rights Code, R.S.O. 1970, c. 318 as am., which read:
4(1) No person shall
(b) dismiss or refuse to employ or to continue to employ any person;
(g) discriminate against any employee with regard to any term or condition of employment,
because of race, creed, colour ... ancestry, or place of origin of such person or employee.
7It was apparent from the evidence given that there was no evidence suggesting a breach of s. 4(1)(g) of the Code, and conceded readily by Commission's Counsel in argument that the issue turned simply upon whether there was a breach of s. 4(1)(b) of the Code.
8In passing, one might query the distinction in s. 4(1)(b) between "dismiss" and "refuse ... to continue to employ." It may be that the latter phrase embraces the situation of a layoff or suspension, or a refusal to extend a limited initial term of employment, where there is not a formal dismissal. In any event, it is clear that the case at hand involved a dismissal. The issue is – was Mrs. Reid dismissed from her employment because of a prohibited ground, contrary to s. 4(1)(b) of the Code? Moreover, the jurisprudence is clear that the Complainant is successful in establishing a violation of the Code if one of the reasons for dismissal was a prohibited ground. The prohibited basis for dismissal must be a proximate cause but may be present with other proximate causes.1
9Mrs. Reid's dismissal came as a surprise to her, without warning, after twenty-one months of employment. She said Mr. Traecey had complained to her twice about taking coffee breaks that were too long and about talking too much while she was working (Evidence, pp. 10, 11), but not otherwise about her work. Mr. Traecey's evidence was really to the same effect (Evidence, p. 154).
10Mrs. Reid readily admitted on cross-examination that she had never complained to Russelsteel management about any discrimination by employees (Evidence, pp. 26, 27, 28, 103, 114). She said Mr. Traecey never made any comments about her colour or racial origin either when hiring her or during the twenty-one months she was an employee (Evidence, p. 25).
11Mr. Traecey was the person with the authority on behalf of Russelsteel Limited to hire Mrs. Reid. Both he and Mrs. Reid got along well with each other, as was apparent from the evidence of both (Evidence, pp. 96). She said he was "always friendly and nice" (Evidence, p. 42).
12It was Mr. Traecey who purchased a card of congratulations signed by her fellow employees, and placed a small Canadian flag on her key punch machine, the day that Mrs. Reid obtained her Canadian citizenship (Evidence, p. 96). Ms. Adriana De Cicco (supervisor to Mrs. Reid at the time of Mrs. Reid's hiring) testified that Mr. Traecey had never indicated any dislike for blacks (Evidence, p. 64). Ms. De Cicco, called as a witness by the Commission, testified that while the keypunch operators formed cliques, so far as she knew, there was no discrimination evidenced in respect of Mrs. Reid at the Concord office (Evidence, pp. 63, 64, 66).
13Mr. Traecey had allowed Mrs. Reid a leave of absence to attend her grandfather's funeral in Jamaica (Evidence, pp. 31, 32, 95, 96).
14Mr. Traecey was critical of Mrs. Reid's performance as an employee for several reasons, in particular, that she talked too much on the job. He testified that she also complained about her salary increase (Evidence, p. 103) and had a punctuality and attendance problem (Evidence, pp. 108, 192, 193). Although the significance of her being late was disputed, the "Time Sheets" (Exhibit No. 13) established that she was late on several occasions but her position was not significantly different from other employees in this regard. He felt she could not be rehabilitated, and guessed that "she was fed up with the day-to-day routine" (Evidence, p. 193).
15Mrs. Reid had taken a test, along with the other keypunch operators, June 15, 1978. Her performance was satisfactory but below (see Exhibits No. 10 and 11) the other keypunch operators except for one other (who was also fired shortly after Mrs. Raid). Although the test was not devised and administered to assess the employees, but rather to determine the over-all volume generated from each of the company's branches, and productivity of this part of the company's operations (Evidence, pp. 30, 31, 54, 111), it did bear out the suspicion of Mr. Traecey that Mrs. Reid and another employee were less productive than the other key-punch operators. However, Mr. Traecey did not at any time criticize her results on the test, or warn her that she would have to improve, and in fact left her with the impression in a discussion a week after the test (Evidence, p. 103) that she was a valued employee and there was nothing wrong. There was no dissatisfaction or criticism expressed to Mrs. Reid (Evidence, pp. 107, 147–149, 153; 154, 155, 201). Mr. Traecey said he treated her this way because at that time the "turnover ... was ... beyond belief" (Evidence, pp. 106, 110, 111, 152, 156) and he wanted to retain her as an employee for the time being (Evidence, pp. 107, 171, 172), admitting this was for "very selfish reasons" (Evidence, p. 106). The test undoubtedly did adversely affect Mrs. Reid's employment, and it was perhaps invidious when it was administered expressly on the basis of not being an evaluation of her performance (Evidence, pp. 136–138), and she was also later left with the impression that the Company was pleased with her work (Evidence, pp. 106, 107, 152–155, 158). Then when she was dismissed, she really was not given any specific reasons other than that she needed "a change of job" (Evidence, pp. 12, 13).
16However, this Inquiry must be distinguished from the situation of a grievance by a dismissed employee in a labour relations case, where an employer may have the onus to show just cause for termination and the arbitrator has the power to give relief if the dismissal is seen as being too harsh. Although the termination of Mrs. Reid's employment might well not stand up to scrutiny in a grievance procedure before a labour arbitration board, and the manner in which Mr. Traecey terminated her employment left much to be desired, the only issue before this Board of Inquiry is whether the termination was on a basis of a prohibited ground under the Ontario Human Rights Code.2
17On the evidence, I find that Mr. Traecey did not discriminate against Mrs. Reid, and in fact, treated all the keypunch operators in the same manner irrespective of their race, colour, ancestry, or place of origin.
18Mr. Traecey testified that another key-punch operator, who is Caucasian, and was allegedly non-productive and talked too much on the job, was fired shortly after Mrs. Reid, although she was formally dealt with as a "lay-off" because she had been absent for some time previously due to illness (Evidence, pp. 118–121, 161). Mr. Traecey had fired three key-punch operators during the two months Mrs. Reid was employed with Russelsteel (Evidence, pp. 33, 34, 117, 135, 136, Exhibit No. 16). Of the nine key-punch operators in February 1978, only one was still an employee, being Shirley MclImurray, the supervisor, by November 10, 1978 (Evidence, p. 111; Exhibit No. 14).
19The only plausible basis for Mrs. Reid proving her Complaint rested upon her establishing that Shirley McIlmurray (Mrs. Reid's supervisor for the last twenty months or so) disliked blacks and had influenced Mrs. Reid's being fired. Mrs. Reid's Complaint (Exhibit No. 2) included the allegation:
One of the women in the section has said she dislikes blacks. I used to sit nearby her, but Mr. Traecey moved me out and put me sitting by myself. When a machine became vacant, again I went and sat there but the same woman went to Mr. Traecey and again I was moved out.
20Mrs. Reid testified that this reference to "One of the women ..." was in respect of Mrs. MclImurray (Evidence, p. 49).
21Mrs. Reid testified that Shirley MclImurray had told her that neither Mrs. MclImurray nor Mrs. McIlmurray's father liked blacks (Evidence, pp. 11, 19).
22However, Mrs. Reid herself admitted that she had never complained about anyone discriminating while she was employed, although she testified she had told management that Mrs. MclImurray, was difficult to get along with; but there was really no suggestion this had anything to do with Mrs. Reid being black.
23It is clear that Mrs. MclImurray did not regard Mrs. Reid's work performance as satisfactory (Evidence, pp. 210, 237). However, she denied any prejudice towards blacks or that she had expressed any statements of prejudice with respect to blacks (Evidence, pp. 209–210, 234, 236). She admitted in cross-examination that her father held discriminatory views toward blacks, but disavowed any association on her own part with such views (Evidence, pp. 209–210, 234, 236).
24Considering all the evidence, it would seem that Mrs. MclImurray made the discriminatory views of her father known to Mrs. Reid, perhaps through thoughtlessness or carelessness (Evidence, p. 237), rather than with malicious intent, but this in itself should certainly not have happened. Mrs. Reid's own testimony was somewhat uncertain as to whether Mrs. MclImurray expressed a personal viewpoint to Mrs. Reid, or whether she simply stated that her father held this view toward blacks (Evidence, pp. 27, 49), and Ms. De Cicco, who had worked with Mrs. MclImurray for some time did not know what Mrs. MclImurray's personal views were towards blacks, but only "that once she mentioned something about her father having a bad experience with blacks" (Evidence, pp. 62, 63). Considering all the evidence, I do not think it has been established that Mrs. MclImurray herself discriminated against blacks, and specifically, against Mrs. Reid.
25It is also clear, in any event, from the evidence that. Mrs. MclImurray did not really directly participate in the decision to terminate Mrs. Reid's employment. Mr. Traecey testified that Mrs. MclImurray was called in to discuss the matter only after he and his assistant had already made, that decision (Evidence, pp. 172, 193, 194, 195, 198). Mrs. MclImurray was consulted at that point, and Mr. Traecey said she complained about Mrs. Reid's excessive talking and lack of productivity (Evidence, pp. 130, 131, 153).
26Mrs. Reid's Complaint (Exhibit No. 2) further alleged:
I later learned that Mr. Jim Traecey, who had interviewed and hired me had found me qualified but had hesitated to hire me because of my being black. I am the only black working in the Head Office and one of the very few in the whole organization.
27Neither of these allegations was well-founded. As for the latter allegation, Mrs. Reid had never been to another office of Russelsteel Limited and simply had no knowledge as to whether there were few, or any other, blacks in the Russelsteel organization, as she readily admitted on cross-examination (Evidence, pp. 23, 24). Mr. Traecey testified he himself had not interviewed more than one other black applicant while he has been at Russelsteel (Evidence, pp. 125, 126). Ms. De Cicco testified that a black person was employed by Russelsteel after Mrs. Reid (Evidence, p. 62). Mr. Traecey testified that there were three or four Russelsteel employees who were not Caucasian (Evidence, pp. 199, 200).
28As for the first allegation, Mrs. Reid herself testified that Mr. Traecey never raised the matter of her origin during the hiring process, and he did, of course, in fact hire her. During the twenty-one months she was an employee, he never once said anything about her colour. Adriana De Cicco testified that before Mrs. Reid started, Mr. Traecey simply asked Ms. De Cicco (after he had hired Mrs. Reid) if she thought Mrs. Reid would have any problems with the staff due to the fact she was black. Moreover, Ms. De Cicco testified that Mr. Traecey had never at any time indicated he didn't like black persons.
29On all of the evidence, I find that Mrs. Reid was not dismissed from her employment "because of race, colour, ancestry and/or place of origin" by the Respondents Russelsteel Limited and Jim Traecey. In fact, the evidence was clear that she had a fairly congenial relationship with both her co-workers and employer. Except for the manner in which her dismissal came about, Mr. Traecey was quite kind toward her. With respect to her dismissal, in fairness to Mrs. Reid, Mr. Traecey should have warned her in frank language about her shortcomings in performance as an employee, and given her a fair opportunity to improve and provide satisfactory service. I think Mr. Traecey was in error in this regard; however, I have no doubt that he was not motivated by any bias against Mrs. Reid because of her race, colour, ancestry or place of origin. He made the decision to fire her, and was of the view she would not improve and he had "given up" on her. Whether right or wrong in this judgment, he should have warned Mrs. Reid and given her the chance to improve while knowing the full consequences if she failed to do so. While unfairness in dealing with an employee is a factor to consider in determining whether there is discrimination, in my view considering all the evidence before me in this Inquiry, I find there was no discrimination toward Mrs. Reid in her dismissal from her employment with Russelsteel Limited.
30As it was, being fired came as a real surprise and shock to Mrs. Reid, and as a consequence undoubtedly she felt she was being treated unfairly and she then made a conclusion as to why she had been fired based upon vague feelings about her employer-employee relationship at Russelsteel Limited. Mrs. Reid incorrectly rationalized her dismissal by inferring that it could only have happened due to discrimination by her employer. I have no doubt, after considering all the evidence, in coming to the conclusion and making the finding that the Complainant was not dismissed by the Respondents from her employment because of her race, colour, ancestry and/or place of origin.
31For the reasons given, the Complaint is dismissed.
NOTES
In the Bushnell case, an employee was dismissed for a number of reasons, only one of which was a prohibited ground under s. 110(3) of the Canada Labour Code, R.S.C. 1970, c. L-1, i.e. membership in a trade union. The Ontario Court of Appeal upheld the judgment of Hughes J. to the effect that "union membership must be a proximate cause of dismissal, but it may be present with other proximate causes" (p. 290). In other words, regardless of other justifiable motives for dismissal, when the prohibited ground of union membership was present, s. 110(3) of the Canada Labour Code applied. This decision has been cited with approval in other labour relations decisions, for example, Re Sheehan and Upper Lakes Shipping Ltd. 1977 CanLII 3060 (FCA), 81 D.L.R. (3d) 208; Pipher v. Atlantic Bus Lines Inc. [1980] O.L.R.B. Rep. 154.
By analogy, the Bushnell decision has been considered in some decisions of the Ontario Human Rights Commission. In the case of Heather Hawkes v. Brown's Ornamental Iron Works (Dec. 12, 1977), Prof. D.A., Soberman considered the situation where an employee was dismissed partly on grounds of age (a prohibited ground under the Ontario Human Rights Code), and partly on other grounds. Prof. Soberman followed Bushnell and decided that if "age were present in the mind" of the employer, then the dismissal of Mrs. Hawkes was contrary to the Code.
That reasoning has been adopted, citing Bushnell as authority, in several subsequent decisions of the Ontario Human Rights Commission. In Sheila Robertson v. Metropolitan Investigation Security Ltd. (Aug. 10, 1979), I cited with approval Prof. Soberman's discussion of the Bushnell decision in Hawkes v. Brown. Similarly, in Jamie Bone v. Hamilton Tiger-Cats (Aug. 16, 1979), Prof. John McCamus cited both Bushnell and Re Sheehan and Upper Lakes Shipping Ltd., supra, in deciding that where prohibited grounds are "motivating factors," then a violation of the Code has occurred, even though a number of other factors were also present.
In two more recent decisions, Prof. Soberman has cited Bushnell as the "leading decision" on the issue of Code violations in the presence of factors not covered by the Code: Skeete and Samuel v. Jolyn Jewellry Ltd. (June 23, 1980); Hetty Hendry v. L.C.B.O. (Aug. 5, 1980).
In summary, then, Bushnell holds that where one prohibited ground is present, even amongst other non-prohibited grounds, a violation has occurred. This has been approved in other labour relations decisions, and has been applied by analogy in decisions of Boards of Inquiry under the Ontario Human Rights Code.
According to s. 37(8) of the Labour Relations Act, R.S.O. 1970, c. 232:
Where an arbitrator or arbitration board determines that an employee has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject-matter of the arbitration, the arbitrator or arbitration board may substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and reasonable in all the circumstances.
On the other hand, s. 14c of the Ontario Human Rights Code, R.S.O. 1970, c. 318 provides:
The board, after hearing a complaint, (a) shall decide whether or not any party has contravened this Act; and (b) may order any party who has contravened this Act to do any act or thing that, in the opinion of the board, constitutes full compliance with such provision and to rectify any injury caused to any person or to make compensation therefore.
A Board of Inquiry has wider powers to grant remedies than an arbitrator. Such a board may order "any act or thing that ... constitutes full compliance ..." An arbitrator, though, may only "substitute such other penalty ... as ... seems just and reasonable."
However, the board may only make an order when the Code has actually been violated. An arbitrator under the Labour Relations Act may substitute a penalty even when an employee has been dismissed "for cause."
In other words, the Code provisions relating to remedies may only be invoked once it has been found that there is a breach thereof, for example, that dismissal from employment on the basis of a prohibited ground under the Code has occurred. Thus, the authority of a Board of Inquiry to provide a remedy is operative on a narrower basis than the authority of an arbitrator under the Labour Relations Act. An arbitrator may penalize an employer in appropriate circumstances, even if the employee is dismissed "for cause" although once a Board of Inquiry has the right to provide a remedy, a broader scope of remedy is available.