Williams v. Export Plastics Co.
1981-08-24
Ontario Board of Inquiry
ONTARIO
CHRR Doc. 82-074
Florette Williams Complainant
v.
Export Plastics Company Limited Respondent
Date: August 24, 1981
Place: Toronto, Ontario
Before: Ontario Board of Inqury, Jane Banfield Haynes
Appearances by: Janet Minor, Counsel for Florette Williams and the Ontario Human Rights Commission
RACE, COLOUR AND PLACE OF ORIGIN — employment terminated
Summary: The Board of Inquiry finds that Florette Williams was discriminated against because of her race when she was forced to accept either a demotion or termination of her employment after she returned from an absence from work to undergo surgery.
The Board accepts evidence that the person who made the decision with respect to Florette Williams' position on her return to work was prejudiced against black people and, in the absence of any other reasonable explanation for the treatment Williams received, the Board concludes that race discrimination was a factor in her constructive dismissal.
The Board awards Williams $3,300 in compensation for lost wages and humiliation suffered.
1The date of the hearing of this complaint was originally set for 7 July 1981 in Toronto and notice of hearing and a copy of the complaint were sent to the parties by myself in my capacity as Chairman of the Board of Inquiry appointed to hear and decide the complaint. At the request of the official receiver of Export Plastics Company Limited the date of hearing was postponed, with the agreement of the complainant and her counsel. On 10 July 1981 the respondent company's solicitors, McCarthy & McCarthy of Toronto, informed me and the complainant's counsel by letter that they would not appear on behalf of the company and that the company would not be represented before the Board of Inquiry. Notice of hearing for 21 July 1981 was then sent to both parties but appearances were made only by the complainant and her counsel, Miss Janet Minor.
2Florette Williams' complaint alleges that in April 1979 she was discriminated against in terms of employment practices by the respondent company on the basis of race, colour, nationality, ancestry and place of origin, in contravention of Section 4(1)(b) and (g) of the Ontario Human Rights Code, Revised Statutes of Ontario 1970, Chapter 318 as amended. The particulars of the alleged discrimination were given in the formal complaint and in the complainant's testimony at the hearing. Florette Williams, now forty years old, is a black woman from Jamaica who came to Canada in 1974 and worked as a machine operator for two years before being laid off. She joined Export Plastics Company Limited in metropolitan Toronto in 1976 and after two years of full-time work as a machine operator she was promoted to assembly line supervisor, with an increase in hourly pay. Export Plastics manufactured plastic hangers, pots, flower pots and asbestos pipes and Ms. Williams, as assembly line supervisor, was responsible for the quality control of products produced by ten women working on the assembly line.
3Early in 1979 Ms. Williams informed the company's general manager, Mr. Tom Wall, and his subordinate, the plant superintendent, Mr. Alan Dowe, that she would be off work for six to eight weeks for a surgical operation. According to her testimony, both men "said it was okay for them." During this absence she was not paid. About six weeks later Ms. Williams phoned the manager and said she would be back to work four days later. According to her testimony the manager "told me that my job had been changed but anyway I could come back and talk to the plant superintendent." On arriving at the plant on 23 April 1979 Ms. Williams spoke to the plant superintendent who informed her that a white woman employee had assumed her assembly line supervisor position and that Ms. Williams could take a machine operator position at a cut in hourly pay and "that if I didn't like it then I could quit." The company later sent Ms. Williams a separation slip dated 23 April 1979 which indicated she quit work on that date. Ms. Williams stated in testimony that it was her clear understanding that if she did not wish to take a demotion with a cut in pay there was no job at Export Plastics for her. The plant superintendent did not give a reason for the decision not to reinstate Ms. Williams in her previous position of assembly line supervisor. The same day she telephoned the general manager and told him of these events but he did not offer any reason why the job had been changed and according to her testimony he commented that "black people think they can walk off the job and come back as they like." Two days later, Ms. Williams phoned the company president, Mr. Bruce Gorrie, about the matter but he said he knew nothing about it and would find out what had taken place, but in the event he did not get in touch with Ms. Williams. Having received no call from the president, she lodged a complaint with the Human Rights Commission. Ms. Williams then looked for other jobs and after a period of four months, during which she received unemployment benefits, she was hired by another company.
4Testimony was given at the hearing by the investigating officer of the Ontario Human Rights Commission who spoke to Company officers and employees about two months after the incident which is the subject of the complaint. In the absence of testimony by, or the appearance of, the respondent at a hearing, the sworn testimony of a Commission officer takes on greater importance and must be given careful attention by a Board of Inquiry. I am satisfied that the Commission officer in this instance took pains to solicit and record information accurately and without bias.
5This complaint raises two issues: was the complainant dismissed, refused continued employment, or discriminated against with respect to terms of employment? and if so, was this for reasons connected with the alleged bases of discrimination? The evidence on the first issue is, in my opinion, clear. Ms. Williams was explicitly told that if she did not take the job offered to her on her return to work, that is, as a machine operator (which constituted a demotion in terms of pay and responsibility from assembly line supervisor) then she could quit or be dismissed. Ms. Williams' testimony is supported by the Commission officer's account of his interview with Mr. Dowe, plant superintendent. Mr. Dowe said he was instructed by his superior, the general manager, Mr. Wall, to replace the complainant with someone else. Mr. Wall, during an interview, stated that had Ms. Williams not accepted the demotion she would be dismissed. I accept the submission of the complainant's counsel that Ms. Williams was put in a position of accepting a demotion or quitting, and that this effectively constituted a firing because she would not accept a lesser position than she had. No reason was given to her why she should be demoted; she was not aware of complaints about her work and had received a promotion and increase in pay while employed by the company. The Commission officer's interviews with her fellow workers also indicated clearly that she was a good worker. Further, when Ms. Williams informed Mr. Dowe and Mr. Wall that she would be absent for some weeks for an operation, neither of them raised any question about her competence or her resumption of the position she then held. I therefore find that the complainant was, in effect, dismissed by the respondent company, and that no valid reasons were given for this action by the company's officers.
6The second issue is whether this dismissal was the result of discrimination or discriminatory practices by the company, its agents and officers, as prohibited by the Ontario Human Rights Code. Here the evidence is not as clear. The company had, at the time of the complaint, about fifty employees exclusive of the managerial staff, and over half of them were black or non-white and some held supervisory or quasi-supervisory positions. Ms. Williams stated that the only comment made to her was by Mr. Wall who stated that "black people think they can walk off the job and come back as they like." The testimony of the Commission officer indicates that a number of non-white employees felt or believed that Mr. Wall was generally prejudiced against black persons, and that Mr. Dowe was not, but none of the employees interviewed could give specific instances of actions or statements indicative of this alleged prejudice. Some employees observed that black employees were laid off before white employees during slack periods or that non-whites might be more quickly blamed than whites for accidents or mishaps in the plant. Mr. Dowe, when interviewed, stated that it was Mr. Wall's decision to demote Ms. Williams, and that Mr. Wall is "definitely prejudiced against blacks," this phrase being an accurate rendition of the words used. Mr. Wall, during the interview with the Commission officer, offered no explanation or reason for the decision in respect of Ms. Williams and said he had found no fault with her work, and denied that he had made any comment to Ms. Williams about her colour. Mr. Gorrie, company president, was interviewed but was unable to add anything as far as the complainant's performance was concerned or to comment on the attitude of the company's officers.
7I have carefully read the testimony of the Human Rights Commission officer which as I indicated earlier must be given weight, especially when the respondent is not represented at the hearing. I conclude that the company and Its agents and officers did discriminate against Ms. Williams by dismissing her because of her race and colour. I reach this conclusion for two reasons. First, no evidence was produced to indicate any other reason or ground for dismissal, and thus by inference race was a factor in the company's action and decision. Ms. Williams was hired by the company after two years of experience in a similar job and she performed satisfactorily for three years, during which time she received a promotion to a supervisory position. Given the evidence of high employee turnover in the company it is difficult to understand why a long-time employee whose work was competent would be dismissed were it not for some reasons unconnected with job performance. Second, there is evidence from the testimony of some employees that a company officer was prejudiced against non-whites. That evidence Is not conclusive, and the officer, Mr. Wall, denied it, but it casts a shadow over this specific allegation of discrimination sufficient to raise race or colour as either a determining or a significant factor in the dismissal. I believe that it was a significant factor in this instance, in the absence of any other reason being advanced.
8The Board finds therefore that Export Plastic Company Limited did dismiss Florette Williams and discriminate against her in regard to terms of employment because of her race and colour contrary to Section 4(1)(b) and (g) of the Code.
9Several remedies were requested. First, the Board was asked to award compensation to Ms. Williams both for the loss of income suffered as a result of the discriminatory action and for the general injury to her feelings. In respect of the former, there is evidence that Ms. Williams looked for, but was unable to obtain, employment during a four-month period after April 1979 and consequently suffered a loss of income. In respect of the letter, I believe Ms. Williams was quite properly aroused and suffered considerable frustration in her attempts to discover the reason for her dismissal. On the basis of the evidence presented I fix the income loss at $3000 and would order that total compensation of $3300 be paid to Ms. Williams. Ms. Williams received unemployment benefits during the four months she was unemployed and I understand she will be obligated to refund such benefits if she receives the compensation awarded by the Board of Inquiry in respect of loss of income.
10The second remedy requested was an order that the respondent be required to comply with the Human Rights Code: The company is no longer operative and is, I understand, in the hands of an official receiver. I believe that under the circumstances little could or would be achieved by such an order.
11In the result, I order the respondent to pay the complainant the sum of $3300 but decline to order any further remedy.