Obdeyn v. Walbar Machine Products of Canada Ltd.
1982-01-21
Ontario Board of Inquiry
ONTARIO
CHRR Doc. 82-027
Rheinhold Obdeyn Complainant
v.
Walbar Machine Products of Canada Limited Respondent
Place: London, Ontario
Before: Ontario Board of Inquiry, M.R. Gorsky
Appearances by: John A.M. Judge, Counsel for Rheinhold Obdeyn and the Ontario Human Rights Commission R.W. Cosman, Counsel for Walbar Machine Products of Canada Limited
RETALIATION — employment terminated after assisting in filing of human rights complaint
Summary: The Board of Inquiry rules that the Ontario Human Rights Code was breached when Rheinhold Obdeyn was discriminated against by fellow employees because he had assisted a co-worker to pursue a human rights complaint and a management representative knew of the discrimination and did not assist Obdeyn.
The Board dismisses other allegations that Obdeyn was discriminated against in terms or conditions of employment because of his creed and discharged on discriminatory grounds.
The violation of the Code which is upheld falls under Section 6 which prohibits any retaliation against a person who files a complaint or who assists in the filing or investigation of a complaint.
The Board awards Rheinhold Obdeyn 200 dollars in damages for emotional suffering.
DECISION AND ORDER
1The Complainant was born in Surabaya, Indonesia (then the Dutch East Indies). Upon the outbreak of hostilities between Holland and Germany, during the Second World War, the Complainant was interned by the Dutch authorities who treated him as a German national because of his father's status. At the time he was approximately eleven years old. There is no doubt that this unhappy experience left a permanent imprint on the Complainant's psyche. That this is the case becomes clear from an examination of the evidence of the Complainant's physician, Dr. Vujnovic. As an apparent result of his experiences, the Complainant has been subject to ongoing emotional and physical complaints which have frequently interfered with his normal functioning. These complaints have sometimes made the Complainant less able to cope with many of life's difficulties.
2After the Second World War, the Complainant left Indonesia for Holland where he went to school and obtained a high school diploma. After serving in the Dutch Marines, as a dental technician, he remained in Holland until 1954, when he emigrated to Australia with his first wife. In 1962, the Complainant returned to Holland, for a brief period of time, following which he left for Canada, also for a brief period. In 1963, he returned to Australia, where he remained until 1967. In 1967, he returned to Canada and remained there until 1972. It was during the last mentioned sojourn, in Canada, that he was divorced from his first wife. In 1972, the Complainant once again left Canada, returning for a brief period to Australia. He then left for Bulgaria where he met his present wife. After obtaining an exit visa for his new wife, he left Bulgaria for Holland where he and his present wife remained for two years. In 1976 the Complainant and his present wife came to Canada where they remained to the time of this hearing.
3In 1976, the Complainant worked for Canada Linen Supply for approximately five months. On February 7, 1977, the Complainant commenced his employment with the Respondent.
4Each of the allegations will be reviewed. However, before doing so I wish to make an observation with respect to the matter of credibility of the witnesses who gave evidence: (All references to page numbers refer to the transcript except where otherwise indicated).
5Aarne Kartna was, during the investigation stage of the complaint, an officer employed by the Commission assigned to the Obdeyn Complaint. As part of his duties, Kartna conducted a number of interviews with representatives or employees of Walbar.
6A good deal was made, by counsel for Walbar, of the fact that Kartna often did not prepare his notes following the interviews, immediately upon completion of such interviews. Some of his reports were not reduced to writing until five days after an interview (428). Kartna was subjected to searching cross-examination by able counsel. During the course of his giving evidence Kartna appeared to me to be an honest, forthright and intelligent person. His evidence was given in a manner which disclosed a desire to present a picture of what he had heard and observed during his investigation, untainted by any personal interest. By his demeanor and candor, Kartna demonstrated that his evidence was not self-serving. In this hearing I found Kartna proved to be a refreshing witness, as many of the other witnesses, including the Complainant, in giving their evidence, impressed me as being, in varying degrees, less than frank and open.
7While it would have been advisable for Kartna to have reviewed his notes with the several persons he interviewed, I am satisfied, having observed the way each of those witnesses responded to questions concerning the interviews referred to by Kartna, that where the evidence of Kartna and the witnesses interviewed differ, I prefer the evidence of Kartna. Kartna was an experienced investigator, skilled in his work and aware of what evidence was significant. He appeared to approach his task in a proper, disinterested fashion and without a preconceived view of the validity of Complainant's allegations. I am satisfied that where he had any doubts as to the accuracy of his recollections, he testified accordingly.
8I would add that Kartna is no longer employed by the Commission and has no professional ongoing interest in the determination of the Complaint.
9The Complainant, Rheinhold Obdeyn, put forth two grounds for relief:
(i) that he was discriminated against during the course of his employment as to terms and conditions of his employment either directly through management or indirectly through his fellow employees and then discharged for having participated in the enforcement of rights under the Code and that he is entitled to protection under s. 5 of the Code. [now s. 6]
(ii) that he was discriminated against during the course of his employment as to terms and conditions of his employment either directly through management or indirectly through his fellow employees and then discharged on the basis of his political beliefs, more specifically that he was a communist. He claims to be entitled to protection under s. 4(b) and (g) of the Code which protects against discrimination on the basis of creed.
10One of the more difficult aspects of this case was developing a framework capable of directing the myriad of evidence presented into the relevant issues. The evidence can best be dealt with by dividing it, firstly, into four major categories: social ostracization, monetary discrimination, general harassment and finally, just cause.
11The first major category, social ostracization, can be broken down further into the following issues:
(i) exclusion from the hockey pool.
(ii) unjust restriction of walking and talking while at work.
(iii) being called a communist.
(iv) being blamed for a change in overtime policy.
12The Complainant alleges that not only did the Company discriminate against him directly but it also permitted his fellow employees to discriminate against him, which action, it was submitted, also placed the Company in breach of the Code. The second category, monetary discrimination, will also be broken down into sub-issues.
(i) restrictions on overtime.
(ii) lower pay increases and bonus.
13At this point it would be useful to note that the excerpts from the transcript referred to, are not direct quotes but rather a paraphrasing of the relevant testimony with an accompanying page number intended to be an index for reference to the direct testimony.
14Before examining, in detail, the alleged acts of discrimination, it is necessary to draw some causal connection between them and the Complainant's grounds for a remedy. Mere discrimination is not enough. It must be linked to some kind of discrimination prohibited under the Code.
15There is no dispute that Obdeyn assisted a former employee of Walbar (Latchman) in the case of a complaint, made by Latchman, under the Code. He advised Latchman on the telephone and accompanied him to the Commission's offices and there assisted in obtaining information for Latchman. Because of this and his supposed questioning of other employees he might reasonably be expected to be called as a witness in that proceeding.
16Did the management of Walbar or the other employees know of Obdeyn's involvement? Looking at the testimony of the employees where Obdeyn worked in the bench area: Arthurs denied that he ever heard of Latchman or knew that Obdeyn was helping anyone under the Code (583). Otis, who worked on the bench part time, never heard of the incident (594) nor did he question Obdeyn about it (598). The same applies to Yousef (788) and Jain (845). The only bench area worker to admit hearing the rumor was Evans. He denied, in chief, ever hearing the name Latchman (806) but later admitted, in cross-examination, that he had heard someone had filed a complaint under the Code, but he didn't know who had done so.
17Obdeyn testified that he talked to many workers about Latchman (47) but could not recall if he informed them he was going to the Commission. Obdeyn could not remember telling anyone, the next day at work, of his involvement, but says he was confronted on the issue by Biss (60).
18Bibic says (632) he didn't know of Obdeyn's involvement until Obdeyn, himself, told him. But in cross-examination, Bibic could not deny that he had heard rumors of Obdeyn's involvement, before their meeting.
19Kartna testified that he conducted a personal interview with Bibic on July 13, 1979, in Bibic's office in Plant 2 (452). At that time, Bibic told Kartna that he had heard rumors that Obdeyn had assisted or was going to assist Latchman with his complaint. Bibic further stated that Obdeyn had complained to him that a number of Obdeyn's fellow employees were refusing to speak to him because Obdeyn had assisted Latchman with a complaint under the Code. Bibic is said to have told Obdeyn that he (Bibic) had no control over who employees spoke to (454).
20Biss knew Obdeyn was involved with the Latchman complaint because Obdeyn approached him for help, as he felt Latchman had been unjustly discharged (890). Biss denied that he told anyone of the incident and says he didn't discover that Obdeyn actually helped Latchman until the meeting with Bibic (891). He also denied that he confronted Obdeyn the day after he (Obdeyn) came back from the Commission (894). He later admitted, in cross-examination, that he did approach Obdeyn that day and ask him where he had been the previous day but only for attendance record purposes. He could not recall the answer Obdeyn gave him (938).
21Kartna also interviewed Biss in Plant 2 on July 13, 1979. At that time, Biss acknowledged that he was aware of Obdeyn's assistance to Latchman in connection with the filing of the latter's complaint and of the fact that a number of Walbar employees had negative feelings toward Obdeyn because of the latter's alleged complaint to the Employment Standards Branch with respect to Walbar's overtime policy (459).
22Kartna also testified with respect to a further interview he had with Biss on November 16, 1979 (459). At that time Biss is said to have referred to Obdeyn's advising another employee, whom Biss identified as a Jamaican or a "Paki", to go to Manpower or to the Ontario Human Rights Commission. Bibic regarded this latter conduct as a further example of Obdeyn "trying to make a name for himself" (461).
23Another employee, Milinkovic, admitted hearing rumors to the effect that Obdeyn had assisted in a Code investigation (986). He could not recall the name Latchman associated with the rumor (1005). As well, Wodar knew that there had been a complaint filed concerning Latchman but he denied telling anyone else about it or that he knew anything of Obdeyn's involvement in the matter (538).
24Welner admitted that he discussed the Latchman affair with Obdeyn (1976) but denied they ever talked further about the matter and denied that he ever told anyone of his conversation with Obdeyn. He contended that he did not hear any rumors in the plant of Obdeyn's involvement in a Code investigation (1112).
25Kartna testified as to an interview he conducted by telephone (466) with Welner on July 13, 1979. Welner acknowledged to Kartna his having heard rumors that Obdeyn had assisted Latchman in the filing of a complaint, and that he had advised Obdeyn to refrain from advising anyone that he had done so as this might cause problems for him with fellow employees or with management personnel (465). There was, however, no evidence linking management with Welner's warning and I find that Welner was engaged in a misguided act with which management was not associated.
26On the whole of the evidence I feel representatives of management, especially Bibic, had to suspect Obdeyn of being involved in the Latchman matter. It is clear that representatives of management were aware that the complaint had been made against Walbar, by Latchman, under the Code. As well, an employee reporting to management (Milinkovic) had heard rumors and Biss had direct knowledge of Obdeyn's interest in the case. White, Biss, Welner and Wodar contend they never told anyone else that they knew of Obdeyn's involvement in the Latchman matter, however, it seems doubtful that such information would not find its way to all the managers, especially in such a rumor infested environment as seems to have existed at Walbar.
27As for the employees, it seems strange that Evans and Milinkovic could hear rumors and no one else could. The rumor had to exist somewhere for the others to have heard it.
General Social Ostracization
28As above mentioned, this category will be broken down into four separate sub-issues, all of which allegedly combined to result in harassment of Obdeyn.
(i) The Hockey Pool
29This social event was run by Biss, except when he was away, at which time Evans took over. It is not disputed that Obdeyn was a participant in the pool and that he ceased to be a participant in the fall of 1978. The questions that arise are: How are regular participants treated when they were absent? Was Obdeyn a "regular" and, if so, was he unfairly excluded?
30Obdeyn clearly thought of himself as a regular (69) and testified that he participated in the pool for eight months (139). Arthurs remembered that Obdeyn participated frequently (586) but he could not say he was a regular. Evans believed Obdeyn was a regular (824), while Biss states he was not (938).
31Obdeyn testified that when a regular participant was absent, his ticket was held until he returned to work. This happened to him on two occasions (139). Biss states that the rule of the pool was that when an employee was away another one took his place until that employee, in turn, was absent (899). Arthurs also remembered the rule in that way (586). Evans believed Obdeyn left the pool because he was losing money (818). Bibic maintained that he never knew Obdeyn had been excluded from the hockey pool (708).
32There is some question as to whether Obdeyn was exluded from the pool before or after the Latchman affair. This is a critical point but neither Biss nor Obdeyn are certain on that point, though they both agree it happened around November of 1978.
33On a review of the entire evidence on the point, it appears that Obdeyn was a regular participant during 1978 and that he did cease participating around November of 1978. It does appear that the pool had a rule whereby absent members were replaced but it seems that it was not a hard and fast rule, and it was, occasionally, ignored. This is what one would expect to find in any casually organized social event in a factory or office. I have some difficulty in treating the right to participate in an informal hockey pool as a term or condition of employment. Even if it is treated as such, the evidence fails to disclose that Obdeyn was, in fact, excluded from participation in the pool, after the commencement of the Latchman affair. If the alleged exclusion occurred after the Latchman affair, it is just as likely that Obdeyn's absence as a participant was unrelated to his association with Latchman's complaint. The evidence pointed to a number of other more likely bases for his non-participation than a discriminatory intention referable to the Complainant's involvement with Latchman. It appears more likely that the innocent explanations reflect the truth of the matter.
(ii) Unfair Restrictions Imposed on the Complainant — Walking and Talking While at Work
34It was a major contention of the Complainant that there was a general conspiracy to isolate him in the work place. This can be looked at in two parts: firstly that his fellow employees refused to deal with him after he assisted Latchman, either on their own accord or under a threat from management, and secondly, that management was enforcing a no talking rule that it didn't insist on in the case of other employees.
35As to the first part: Obdeyn claimed that before the Latchman incident, talking in the work place had been a common place thing. Then, suddenly, Welner (63) and Salem (135) both stopped talking to him and there was a general cooling off by 90% of the employees in the polishing department. He noted that the exception to this change in treatment were Navarro, Mrs. Song and Arthurs. He also contended Welner told him he was ordered not to talk with him any more (62) and that he overheard Biss threaten Welner if he continued to talk with Obdeyn (63). Subsequently, most of the social isolation came from employees outside of his work area.
36Both Navarro and Arthurs say they never treated Obdeyn any differently while they worked at Walbar. Otis denied that he stopped talking to Obdeyn or that he had been told by management not to talk to Obdeyn (594). Yousef (791) (801) and Jain (845) said essentially the same thing.
37The people who admitted a change in attitude towards the Complainant were Evans and Milinkovic (987). Evans' change in attitude loses some of its significance when the two men's history is examined. Previously, Obdeyn had accused Evans of stealing and Evans had subsequently given Obdeyn a verbal warning for talking. This incident appears to be on a personal level and unrelated to any other circumstance. On the other hand, there is no explanation for the change in attitude of Milinkovic towards Obdeyn other than Obdeyn's involvement in the Latchman affair or the fact that Obdeyn was believed, by Milinkovic, to be a communist. Milinkovic had a negative view of persons he perceived as challenging his conception of established order and, notwithstanding his protestations to the contrary, it is likely that he strongly disapproved of what he would consider to be an act against the Company: being Obdeyn's involvement in the Latchman matter.
38Welner denied that his attitude towards Obdeyn changed (1079), when in Obdeyn's presence (1079). He acknowledged that he was warned by Bibic to stop talking and was again cautioned by Biss, while he was talking to Obdeyn (1081). He was never specifically ordered to stop talking to Obdeyn. He also denied that he told Obdeyn that he (Welner) would lose his job if he talked to Obdeyn. Bibic (632), Wodar (533) and Biss (894) all deny telling anyone to stop talking to Obdeyn.
39Secondly, did management try to enforce a general rule against unnecessary conversation in order to prevent others from talking to Obdeyn, thus avoiding directly telling people not to talk to Obdeyn? As noted above, Obdeyn testified that people regularly talked with inspectors and workers prior to November of 1978 (31). Also, Wodar admitted there was no written Company rule preventing talking (544).
40From testimony of the employees, it does seem that talking during working hours was tolerated but subject to certain limitations. Navarro admitted that on occasion he was told to stop talking (113). Obdeyn, himself, admitted to being warned by Evans about talking on the job, prior to the Latchman affair. Otis admitted there was a general policy against talking, but also testified that an employee could say a few words to a fellow employee on a subject unrelated to work (395). Yousef admitted that he had been warned by a lead hand, from time to time, about too much talking on the job (802), as did Jain (868). Welner was also aware of the Company policy against unnecessary talking (1080).
41It appears that there was a general policy limiting conversations between employees, presumably on the basis that it broke the written rule which forbade distracting others from work. Did the Company use the rule inconsistently in order to ostracize Obdeyn? Biss did warn Welner, as he talked to Obdeyn, but there is evidence that both Obdeyn and Welner engaged in more casual conversations than the average worker. It is a reasonable assumption that Obdeyn misinterpreted the application of the policy to himself and I cannot find that management had endeavored to isolate Obdeyn because of the latter having assisted Latchman.
42As for the allegation respecting general social ostracization: it appears that Obdeyn:
Experienced difficulty getting along with his fellow employees for some time prior to the Latchman affair, as he had arguments with them (889);
Would not talk to some people before the incident (838); and
Admitted that most of the isolation referred to by him was from employees outside of his own bench area, most of which employees he did not know and could not identify.
43I am satisfied, however, that Bibic, a representative of management in such matters, was aware of the rumors that Obdeyn had assisted Latchman with respect to Latchman's complaint under the Code. He also had received complaints from Obdeyn that some employees were ostracizing him because of his having assisted Latchman in his dealings with the Commission. Bibic chose to ignore Obdeyn's complaint and merely told him that he had no control over who employees spoke to. Even if it is concluded that management cannot compel employees to cease ostracizing a fellow employee where the reason for ostracizing him is based on a prohibited ground of discrimination (a matter which I do not have to decide), Bibic's cavalier dismissal of Obdeyn's complaint is more consistent with his being content with leaving Obdeyn in the situation he believed himself to be in. Bibic's lack of candor while giving evidence satisfies me that he was displeased with Obdeyn for assisting Latchman. There were other reasons why Bibic was not well disposed to Obdeyn, but I would say that Obdeyn having rendered assistance to Latchman was a not insignificant factor affecting Bibic's attitude towards Obdeyn. Bibic's attempt to disguise his knowledge of Obdeyn's having assisted Latchman makes such a conclusion more likely. In the circumstances, an employer, in order to live up to its obligations under the Code, would be expected to treat employees in the same way in similar circumstances. Bibic struck me as being an intelligent man and I am satisfied that he knew what he was doing when he refused to assist Obdeyn. The fact that his intervention may not have altered the attitude of the employees in question cannot affect the actions of Bibic, who I find refused to assist Obdeyn because Obdeyn had assisted Latchman. In fact, it does not matter whether Obdeyn's perceptions were accurate. I am satisfied that if another employee had complained to Bibic that he was being mistreated by fellow employees, in other circumstances, Bibic would have attempted to resolve the matter as part of his managerial responsibility to maintain reasonable harmony on the floor. If the employee's perception were inaccurate, that would have been determined following investigation.
44I believe that a significant part of the reason for Bibic's reluctance to become involved was Obdeyn's perceived act of disloyalty to the Company in assisting Latchman. As I have mentioned, Bibic's evasive answers given at the hearing and his admissions made to Kartna, caused me to conclude that he was endeavoring to disguise his real attitude to Obdeyn having assisted Latchman. In so finding I accept Bibic's evidence that Obdeyn was not specific as to those employees who were refusing to talk to him. Nevertheless, I am satisfied that Bibic did not doubt the accuracy of Obdeyn's complaint and he was already aware of the rumors current in the plant.
45I agree with the conclusion (albeit obiter dicta) of the chairman in his Final Report in the case of Simms and Ford Motor Company of Canada (Ontario Board of Inquiry, (1970) (Krever) at p. 18):
In my opinion the word "discriminate" in the context of the Code means to treat differently or, in the particular context of section 4(1) to make an employee's working conditions different (usually, in the sense of less favourable) from those under which all other employees are employed.
46In this case I find that Bibic treated Obdeyn differently in some significant measure, because of Obdeyn's having assisted Latchman. It is of no consequence that the section being dealt with in the Simms case was s. 4(1) of the Code and the section here being considered is s. 6(e).
47As indicated above, in arriving at this conclusion, it is unnecessary for me to rule as to the existence of an obligation on the employer, under s. 6(e) of the Code, to intervene to remove the cause of the discriminatory working condition, in the sense of its being obliged to make employees cease ostracizing Obdeyn because of the assistance he rendered to Latchman. It is sufficient, for this decision, to find that Bibic, as the representative of management, treated Obdeyn differently from other employees. I find that Obdeyn's working conditions were made different, in the sense of their being less favourable from those under which the other employees were employed.
48At p. 15 of the Simms case it is stated:
... an employer who, knowing that he may not, without violating the Code, refuse to employ a qualified applicant for employment because of his colour or race, employs a person and then stands by idly in the knowledge that his supervisory personnel, or, indeed, any employees, are making him uncomfortable in the plant by using insulting terms with reference to his colour or race, violates the Code. In those circumstances, it may be said that the employer is discriminating against that person with regard to a condition of employment because of his race or colour.
49Here, Bibic stood idly by in the knowledge that employees might be making Obdeyn uncomfortable in the plant by overt actions based upon his having participated or because he might participate in a proceeding under the Code. It is sufficient that Bibic refused to intervene on Obdeyn's behalf and at least investigate Obdeyn's grievance, when a substantial basis for Bibic's conduct was Obdeyn's involvement in the Latchman matter. Bibic had no basis for then discounting the accuracy of Obdeyn's statements. In acting as he did, Bibic treated Obdeyn differently from other employees; some basis for the difference in treatment being Obdeyn's participation or anticipated participation in a proceeding under the Code.
(iii) Allegations that the Complainant was a Communist
50This category is two pronged, as the Complainant not only alleges he was discriminated against because he was, allegedly, a communist but also that his being called a communist was, in the special world of Walbar, a manifestation of that discrimination.
51There is undoubtedly an environment within the plant at Walbar that gives the term "communist" a particular meaning somewhat different from its generally accepted meaning. At Walbar, the Serbo-Croatian, Partisan-Chetnik and related cultural relationships give the term a special meaning. When Obdeyn attempted, at Walbar, to delve into Yugoslavian politics he was warned by a janitor of Italian ancestry to refrain from becoming involved, for his own good (42). It seems that Obdeyn could not remain outside the Serbo-Croatian conflict as it manifested itself at Walbar, as his Bulgarian experience made him (in the eyes of some employees) a suspected communist from the moment it was discovered that he had spent some time in that country and had some knowledge of the Bulgarian language.
52After the Latchman affair became an issue, the accusations and rumors apparently grew that Obdeyn was a communist. Obdeyn testified that Biss called him a communist roughly three to four times a week, usually when Biss was talking to someone else within earshot (66). Biss also called him an NDP supporter and then he called the NDP party a bunch of communists. Twice, after the Latchman affair, Biss is alleged to have directly called Obdeyn a communist (87). Another instance was the Borg incident. Obdeyn claims a fellow worker, Borg, grabbed his hand and held it in the air proclaiming "this is the communist who took away our overtime" (78). When he questioned Borg, he was told that a foreman, Hall, had informed Borg that Obdeyn was a communist. Obdeyn also accused Milinkovic of directly calling him a communist (80). When asked who specifically called him a communist, Obdeyn replied Biss, Otis, Milinkovic, Borg and others whom he could not remember.
53Of the bench area workers who testified, none admitted that they had heard anyone call Obdeyn a communist to his face, nor had they themselves called him one. As for the rumor that the Complainant was a communist, Navarro admitted he had heard Otis call Obdeyn a communist (116). Also, Jain heard the rumor and admitted he might have referred to Obdeyn as "the communist" (862). He also testified he didn't know what a communist was (863). I place little credence in this disclaimer. Yousef had heard of the Borg incident but no mention was made of Obdeyn being called a communist during the incident. Biss became tangled up in his testimony on this point when he was asked how he associated Obdeyn's trouble at Heathrow airport with his being a communist (903). Bliss further undermined his credibility when he denied that he had any feelings about communism (907), then denied he knew what a communist was (963). He also denied that he called Obdeyn a communist (953). I am satisfied that Biss did refer to Obdeyn as a communist and is less than frank in admitting his having done so and in having feelings of ill will against Obdeyn because of his alleged political beliefs.
54Milinkovic admitted his dislike of communists (988) and that he associates unions with communism (1004). He could not recall if he heard a rumor about Obdeyn being a communist (1000) and neither can Welner (1085). Neither witness convinced me of his sincerity and from their demeanor and manner of responding to questions I am satisfied that they were aware of the rumor that Obdeyn was a communist. This is especially the case for Milinkovic, who appeared to me to be a person who had a violent dislike of anyone he perceived to be a communist. I have little confidence in his evidence that he had neutral feelings towards Obdeyn. I believe that to Milinkovic, Obdeyn was a communist and Milinkovic made it clear that he was not neutral in this area.
55As for management personnel: Dunn testified he had never heard Obdeyn referred to as a communist but he also admitted that he was on the floor infrequently (291). Hall denied that he told Borg that Obdeyn was a communist (575). He did admit Obdeyn confronted him once and went into a rage, but he cannot recall why (577). Obdeyn, testified that he confronted Hall after Borg informed him it was he who stated Obdeyn was a communist.
56Bibic admitted a dislike for communists (711) but denied that he heard rumors about Obdeyn being one (754).
57The particular ethnic and political backgrounds of some employees at Walbar disposed them to have a violent hatred of communists. To some of them, to vote NDP, be a proponent of unions, cause problems for management, come from the wrong country, was evidence, at the very least, of communist sympathies. In fact, it was acknowledged that there was no cogent evidence to establish that Obdeyn was a communist and I would find that he was not a communist. It was, however, enough, for some employees, that Obdeyn was allegedly involved with a complaint under the Code on behalf of Latchman, had lived in Bulgaria and allegedly been involved with the Employment Standards Branch, to characterize him as communist. Such circumstances were, to them, evidence of communist beliefs. It appears that the Serbian, Croatian animosities which exist in Yugoslavia have, in some measure, been transported to the shop floor at Walbar. At Walbar, in some quarters, if you desire to discredit an employee you label him as a communist. I am suspect of the testimony Biss gave on this point. He was caught up on a number of occasions, and although counsel could not pin him down, it does appear that there were rumors circulating about Obdeyn being a communist but little was proven in evidence beyond that. The fact that Obdeyn was not a communist is not really relevant if management thought he was and discriminated against him on that basis and if communism represents a "creed" under s. 4 of the Code. Even if communism falls within the definition of creed under s. 4 of the Code, I am unable to find any action which ties management to the various acts of discriminatory conduct directed against Obdeyn, because he was allegedly a communist. I believe he was subjected to a certain amount of verbal abuse from some non-managerial employees because of his alleged political beliefs. I can, however, find no evidence that such manifestations of discrimination were actively or tacitly fostered by representatives of management, although it appears that some of them were apparently aware of the rumors respecting Obdeyn's alleged political beliefs.
(iv) Change in Overtime Policy
58Obdeyn said that he was first made aware that he was being blamed for the change in overtime policy at Walbar, when Borg grabbed his hand and publicly accused him of being responsible (79). He cannot recall if this occurred before or after the Latchman affair (88). When asked who blamed him for the change, which gave the workers less flexibility in working overtime, Obdeyn replied: Evans, Otis, Jain, Arthurs, and almost the whole plant. He also said Navarro quizzed him on his involvement in the change (137).
59As for the bench workers, Navarro claimed he was not aware of any harassment of Obdeyn due to the change in overtime. Arthurs and Otis both testified that they did not blame Obdeyn for the change, but Otis testified that he knew Obdeyn had gone to the Ministry of Labour for some reason (600). He also had heard of the Borg incident, when Obdeyn was first accused (602). Yousef also heard of the Borg incident but did not hear rumors to the effect that Obdeyn was responsible for the change. Evans, on the other hand, did hear rumors that Obdeyn had instigated the change (818) and so did Jain (849), Dunn (280) and Milinkovic (897) (847). Jain also testified that Navarro was there when the rumor was discussed.
60While Jain (848), Otis (597) and Welner (1082) testified that employees did not mind the overtime change, it is clear that some employees were distressed when the flexibility in overtime hours was withdrawn. Biss admitted that he was aware of the rumor and that he confronted Obdeyn the day after he got back from Manpower in October of 1978. He says he did not connect the event with the change in overtime. Welner testified that he did not hear the rumor, but admitted that Obdeyn told him he (Obdeyn) was being blamed for the change. However, Biss told Kartna, during the July 13, 1979 interview that it was common knowledge in the plant that Obdeyn was responsible for the change in overtime.
61For management, Hall (500) and Bibic (694) admit that not all workers were happy with the change.
62I am satisfied that someone associated with the change would clearly be unpopular at Walbar.
63Obdeyn testified that he told Bibic that he (Obdeyn) was being blamed for the overtime change, at a second meeting. In response, Bibic denied they ever had a second meeting, and did not acknowledge that Obdeyn informed him of having been accused (704).
64Kartna also discussed with Bibic at the July 13, 1979 meeting, the rumor respecting Obdeyn's involvement with matters leading up to the overtime directive. Bibic is said to have acknowledged that he was aware of the rumor that the change in overtime policy had been instigated by Obdeyn (455).
65On June 2, 1980, Kartna conducted a telephone interview with Bibic (433). At that time Bibic was said to have acknowledged that Obdeyn had complained to him, in November of 1978, that he was being blamed by his fellow workers because they believed he had been the person responsible for the change in overtime policy (43). Bibic told Kartna that he advised Obdeyn that if he were to cooperate with his fellow employees and be nicer to them they would treat him better (436). Bibic did not, however, take any steps to discuss Obdeyn's complaint with any of Obdeyn's fellow employees (436–7).
66I am satisfied that it was widely accepted within the plant that the change in overtime policy was not a beneficial one and that Obdeyn had initiated it. This rumor was acknowledged by most of the workers and management. There is no proof that management started the rumor to harass Obdeyn but it seems clear they did nothing to put an end to it.
67On the evidence I am satisfied that Bibic knew or had means of discovering that Obdeyn had nothing to do with the change in overtime policy. Yet, when informed of Obdeyn's alleged difficulties with employees who had blamed him for the change, Bibic was content to permit the misinformation to remain uncorrected. I would find that such action is consistent with Bibic's hostility towards Obdeyn, in a significant degree being related to Obdeyn's involvement in the Latchman matter.
Monetary Discrimination
1. Overtime
68The Complainant believes there was unlimited overtime available and that prior to November 1978, it had been allocated by Biss walking around the plant floor and asking employees at large if they wished to work overtime (37). Obdeyn admitted that he didn't want to work much overtime but stated there were employees in his section who worked more than he did. In fact, Obdeyn's physical condition had prevented him from working much overtime (39).
69After the posting of the notice of change in overtime policy, Obdeyn concluded that he was being by-passed for overtime work by Biss (86). He approached Biss on the subject and was told he was not needed to work overtime. After being passed over again, he once more approached Biss and was told that an employee who only performed the deburring operation (as did Obdeyn) was not asked to work overtime (88). Finally, Obdeyn took matters into his own hands and came in to work on a Saturday, after being refused the overtime work on the previous day. At the plant, he found a man with less seniority, Samm, at work (213). Obdeyn was unable to recall if this incident had occurred before or after the Latchman incident. On another occasion he was not asked to work overtime but remained at work and was paid for the overtime work he performed.
70Bibic testified that no order was ever given to exclude Obdeyn from working overtime. Criteria for selecting workers was established, however. These were production requirements, skill and regularity of working overtime (715). As well, Biss was told to cut back overtime for troublemakers (717). Bibic then tried to define the term "troublemaker" and failed to give a very satisfactory answer. He did say that being blamed for the change in overtime policy did not constitute one a troublemaker (719) (762). To Biss' knowledge, Obdeyn was never refused overtime (764).
71Biss testified that he did not refuse Obdeyn overtime because of the meeting they had with Bibic (896). He then gave his criteria for selecting workers and it was basically the same as Bibic's. Referring to the Samm incident, Biss testified that he wanted Samm to work because Samm had unfinished work to complete. Navarro testified that overtime was available every day after the change in policy, but then indicated that he was not sure that this recollection was accurate (117).
72An examination of the records shows that Obdeyn was not a regular worker on overtime during his employment at Walbar. He was also not a very skilled worker. Another point which goes against Obdeyn's allegation, is that he did work on two Saturdays during the period during which he said he was being discriminated against. On the other hand, it does appear work was abundant and he missed some opportunities. As well, the Samm incident was not entirely satisfactorily explained. All the work performed on Saturday represented unfinished work left over from the previous Monday to Friday. The work was not so sophisticated that Obdeyn could not have done the deburring performed by Samm. However, I would find that Obdeyn's undistinguished work record and equally poor skills tip the balance of probabilities in favour of the Company position.
2. Lower Pay Increase and Bonus
73Obdeyn stated that from the end of his probationary period he experienced difficulty in obtaining what he perceived to be a fair wage or what he felt had been promised to him by representatives of Walbar. He admitted that Bibic told him, after three months of employment, that his work was not up to standard (169). This occurred well before the emergence of the problems which are the subject of his Complaint.
74He stated further that he was discriminated with respect to the payment of the Christmas bonus, as he received the lowest one of all the employees having two years seniority. He also received the lowest January raise for that group (90).
75Both Dunn and Wodar indicate that Bibic determined the amount of the bonuses. Wodar listed a number of criteria used in this determination: initiative, seniority, co-operation and absenteeism (527). The increases appear to be merit increases based, in part, on seniority. It was also determined that the lead hands were also consulted by Bibic to assist him in arriving at the amount to be paid to an employee.
76Bibic claimed that he gave between 10 ¢–40 ¢ raises and Obdeyn received 15 ¢ (611). He denied that he relied on the experimental evaluation sheets but later admitted he did look at them (648). He admitted that Obdeyn was an average worker in his field and got above average production (729) but felt his versatility was very limited. Obdeyn admittedly could not work on the SWECO machine and could only do simple bench operations.
77At page 731 of the transcript, there is a comparison made between Obdeyn and five other employees with comparable seniority. He did get a relatively low bonus, but his wage was not far from the average. There seems little doubt that Obdeyn was among the least skilled, if not the least skilled worker. The only person he could identify as being less capable than himself on the bench was Walker, yet Walker could also operate the SWECO machine in her spare time, thus making her a more valuable employee.
78As for the poor attitude rating Biss gave Obdeyn, it appears to be linked more to the two men's heated argument regarding the Samm overtime incident than to the Latchman affair. Biss also testified to that effect (954).
79Obdeyn's position was not assisted by the evidence which disclosed his rather limited level of skill. The Company had a set of criteria and it seems to have applied them consistently, both before and after the Latchman incident. Obdeyn was limited in versatility and in skill level. No reason was put forth by the Complainant that would justify his allegations with respect to monetary discrimination.
General Harassment
80The Complainant made numerous allegations of discrimination and harassment.
81Firstly, Obdeyn claimed he was threatened physically. He refers to his meeting in the parking lot with Welner, where he was told "stay clear from everybody and watch out, watch out for your things, car, for yourself" (62). While Obdeyn admits this was not a direct threat, he felt threatened by it, nonetheless (231).
82In response, Welner first denied the incident (1090), and then he admitted it, but stated that he had been misinterpreted (1091). He denied that he mentioned Obdeyn would be harmed or that others had been fired for speaking up (1088). He felt that he gave Obdeyn his own personal theory, that one should not get involved in other people's business (1094). Upon further questioning as to what would happen to a person who kept getting involved, Welner replied he would get in trouble (1095). He could not, or would not, elaborate on the type of trouble. Welner was a most evasive and unpersuasive witness.
83Clearly, Welner tried to deflect Obdeyn from his apparent course of action. However, it appears that he was trying to give Obdeyn some personal advice rather than threaten him as an agent of Walbar. There was no tendered evidence that could lead to the conclusion that Welner was acting on the orders of Walbar's management.
84Obdeyn also claimed that he was being harassed for work mistakes he never made. He testified that Biss would frequently blame him for a mistake on a part which he (Obdeyn) had not worked on (70). When Obdeyn pointed out that the defective part was not his, Biss apologized.
85Biss admitted that he had wrongly attributed a mistake to Obdeyn, but only on one occasion (913). He did testify, however, that he had to talk to Obdeyn on a number of occasions concerning mistakes committed by him. Apart from the occasion when Biss was in error in attributing a mistake to Obdeyn, there were one or two other occasions when Obdeyn complained that mistakes attributed to him were not his (978). Biss testified that he was not mistaken on those occasions, because he checked the clock numbers on the parts.
86Clearly Biss had been mistaken on one occasion. Did he accuse Obdeyn in order to harass an already isolated worker? It does not appear to me that there was sufficient evidence to attach to Biss a discriminatory motive in finding fault with Obdeyn's work on the occasions referred to.
Just Cause For Discharge
87A number of questions come to mind when Obdeyn's discharge is analyzed. Did the Company apply their notification requirement consistently? Was notice of Obdeyn's absence given to Walbar by Mrs. Obdeyn? Was it given by Navarro? Was it received?
88Obdeyn claimed that his attendance record was pointed out to him before by Biss, but only in a joking manner. He contended that he had never been warned by a representative of management about his absenteeism until November 1978, and that he had never been previously disciplined. Subsequently, he admitted to having received verbal warnings from Biss for absenteeism, both before and after the Latchman affair (131). It appears that Obdeyn had a history of being late and absent and knew the consequences of a prolonged absence without notice being given to the Company.
89Did the Company apply the rule with respect to notification differently in the case of Obdeyn? Did it act in a precipitous manner in firing him? Obdeyn knew of the Company rule but stated that it has been waived in the past. He specifically referred to Biss bending the rule for Otis (245) and as well for Jovanka. Obdeyn believed the decision as to whether to apply the rule was strictly based on whether the person involved had created trouble for the Company.
90Wodar, for the Company, stated that the Company policy was to wait two weeks before acting, in the case of a person who had not notified the Company (548). Bibic admitted that the Company bent the rule but denied that such action depended on who the employee involved was (747). He also testified that the rule could be extended for up to three weeks, although usually by only a few days (780).
91While it appears that Walbar had been inconsistent in its application of the rule, Obdeyn's absence is beyond the period of extension that might have been expected to be granted. If there [was] no notification by or on behalf of Obdeyn, it can hardly be said that the Company's waiting 16 days raises a presumption of discrimination. Furthermore, Obdeyn had a generally poor attendance record and was an employee with an undistinguished and, in some respects, mediocre work record.
92The real issue here is whether the Company received notification of Obdeyn's reason for being absent. Did the Company receive notification from either Navarro or Mrs. Obdeyn? There was an alleged phone call from Mrs. Obdeyn to the Company, giving notification of Obdeyn's absence due to illness. Mrs. Obdeyn can barely speak English. Obdeyn knew this but stated that he wanted her to notify the Company because he felt it was necessary for her to get used to using the telephone (93). Mrs. Obdeyn testified that she reached Walbar about 10:00 a.m. and a woman answered who said: "Walbar, can I help you". Mrs. Obdeyn says she replied "my husband is sick" at which point the person on the other end said "O.K. bye". She thought she had been understood (254). She also felt her husband was too sick to phone (255). This is a most unlikely occurrence. How would the employee at Walbar know who was calling? Also, it is improbable that the employee would have responded, as alleged.
93The Company denied receiving the call, or any call, and contended that it endeavored to reach Obdeyn at home by telephone (626). The main witness for the Company on this point was Ms. Stanley, the receptionist-secretary. At page 1019 she described the message taking system for the plant. There would seem to be a number of flaws in the system. She contended that she, alone, recorded every call in a book (1920). Yet, for the month of January only three sick calls are recorded and, as well, it appears that there is more than one person's handwriting in the book. However, I am unable to find that Obdeyn notified the Company through his wife, as he alleged.
94Obdeyn also claimed that he notified the Company through his fellow worker, Navarro. Navarro admitted receiving a telephone call from Obdeyn asking him to give notice of Obdeyn's absence through illness (110). He cannot, however, recall telling Obdeyn he (Obdeyn) was going to be fired (117) as Obdeyn had testified (95). At the plant, Navarro said he walked up to Biss and told him Obdeyn was sick (117). He admitted that he got no response from Biss. Biss denied that Navarro talked to him about Obdeyn (909). He did admit it may have been possible that Navarro gave notice, as he testified, but because of the noise Biss didn't hear the message (922). Again the issue is one of credibility. How could Navarro volunteer to help Obdeyn, take the time to walk over to Biss, then walk away without being reasonably certain that his communication had been received, knowing the likely consequences for Obdeyn? On balance, I would find that if Navarro told Biss of the reason for Obdeyn's absence, then Biss never received the message. Biss was preoccupied at the time, the work place was noisy and Navarro did little to insure that the message had been received.
95In all of the circumstances I cannot find evidence of a discriminatory motive in discharging Obdeyn. If the Company had a flexible policy when it came to enforcing the notification rule, there would seem to be little basis for giving special consideration to Obdeyn. He was an employee who had a poor attendance record and possessed only limited skills. Moreover, he demonstrated scant prospects for improvement. Failing receipt of a notice I cannot see how the Company can be faulted for acting as it did. It may have had a desire to be rid of Obdeyn for reasons prohibited by the Code (involvement in the Latchman matter and the filing of his own Complaint). However, in view of all the evidence, I am satisfied that Walbar would have discharged Obdeyn even if he had no involvement with Latchman and irrespective of his alleged political beliefs and quite apart from the filing of his own complaint. Unfortunately, Obdeyn was in a position not unlike the stuttering candidate for a position as a radio announcer, who attributed the failure to award him the job to racial prejudice. The animus might have been there, but the result was inevitable. Here, Walbar had ample reason to conclude that Obdeyn would not return to work. His attitude at work, his limited skills and his absenteeism record furnish little basis for giving him further consideration. It appears to me that whatever the intervening events, Obdeyn had little interest in retaining employment with Walbar.
96Nevertheless, I have found that Bibic, on two occasions, as a representative of management, discriminated against Obdeyn as to terms and conditions of employment for having participated in the enforcement of rights (the Latchman matter) under the Code or because he might participate in any other way in a proceeding under the Code. On the evidence, I am satisfied that a significant motivation for Bibic's refusal to assist Obdeyn on those occasions was Obdeyn's involvement in the Latchman matter.
97For the reasons set out above, I cannot find sufficient cogent evidence to establish any of the other breaches of the Code alleged in the Complaint, as amended, and I would dismiss the complaint as it relates to those breaches.
98A decision in this case was rendered more difficult because of the welter of issues and the evidence forthcoming on those issues. With the best efforts of able counsel, the evidence emerged in an often confusing manner and, as I have indicated, the evasive manner of many of the witnesses did not make my task any easier. From the evidence, I have concluded that Obdeyn suffered from poor emotional and physical health. Dr. Vujnovic, in giving evidence on behalf of Obdeyn, made this fact clear. Quite apart from the special facts of this case, Obdeyn's interpersonal relations were not good. He has had a checkered employment history with little evidence of a capacity for remaining on a job for very long. From the evidence I would find that Obdeyn was likely to follow a similar pattern at Walbar, quite apart from the breaches of the Code committed by Bibic, for which Walbar is responsible. Those physical and emotional problems which Obdeyn suffered from would, I conclude, even in the absence of the breaches of the Code, which I have found, have led to his leaving, or being discharged from his employment at Walbar, around the time he was, in fact, discharged.
99He did not care for the work, showed no interest in improving his range of skills, experienced difficulty in maintaining reasonable attendance and in coming to work on time and in attending to his work when in attendance at work. Although the breaches of the Code directed at him no doubt aggravated an already existing emotional and physical condition, it did not, as it might have in the case of another person, significantly alter his situation. It is more likely that the greater part of the physical and emotional upset experienced by Obdeyn was not the result of the illegal discrimination directed at him. I find that the effect of the breaches of the Code are limited to some marginal increase in Obdeyn's emotional and physical problems. For the above reasons the remedy cannot include an order of reinstatement, as the evidence disclosed that the breaches of the Code found by me did not result in, or contribute to, the loss of Obdeyn's employment with Walbar.
100There was evidence which indicated that a number of Walbar employees are engaged in keeping alive ancient animosities, in part based upon race, nationality and ancestry and they are prone to scapegoat certain employees who they perceive to represent their enemies. I need not go into what if any protection can be afforded under the Code against employees occupying non-managerial positions, who do not represent Walbar. Mr. Judge indicated that the Commission was not seeking an order against any of such employees. Milinkovic and Welner appear to fall into the category described and have a poor appreciation of the rights of a person to resort to the protection of the Code and to assist others in resorting to the procedures available under the Code. I would therefore order that the Respondent, Walbar post standard Human Rights Codes or brochures in prominent places within its plant.
101The Respondent is also ordered to send a letter of apology to the Complainant for the failure to abide by the Code in its treatment of the Complainant. It is well established that companies are responsible for acts of members of management who engage in forms of prohibited discriminatory activity. See, Bell and Korczak v. Flaming Steer Steak House Tavern Inc. (1980) 1 Can. H.R.R. D/155.
102It is further ordered that the Respondent pay to the Complainant the sum of $200.00 for the emotional suffering caused him by the failure of the Respondent to adhere to the Code.