Dhillon v. F. W. Woolworth Co.
Place: Toronto, Ontario
Before: Ontario Board of Inquiry, Peter A. Cumming
Appearances by:
T.R. Lederer, Counsel for the Ontario Human Rights Commission
Charles Roach, Counsel for Sucha Singh Dhillon
R.M. Parry, Counsel for the F.W. Woolworth Co. Ltd
CHRR Doc. 82-031
Sucha Singh Dhillon Complainant
v.
F.W. Woolworth Company Limited Respondent
RACE, COLOUR AND PLACE OF ORIGIN — racial slurs and harassment by co-worker — employment terminated — employer's obligation to provide workplace free from harassment — REMEDIES — employee relations program — EMPLOYMENT — obligation to provide discrimination-free workplace
Summary: The Board of Inquiry dismissed Mr. Dhillon's complaint that his termination of employment was due to discrimination on the basis of race but upheld his complaint that he was discriminated against in terms or conditions of employment on the same grounds.
The Board of Inquiry finds that the atmosphere of a workplace is a term or condition of employment, that there is a duty for an employer to take reasonable steps to eradicate racial harassment in the workplace, and if he does not, the employer is liable under the Code.
In this case, the Board finds that Mr. Dhillon and other East Indian employees were subject to regular and significant verbal harassment and that the employer knew of this harassment and did not take reasonable steps to end it.
The Board awards Sucha Singh Dhillon $1,000 in damages, requires the employer to establish a Management-Employee Race Relations Committee, and remains seized of jurisdiction for six months in order to deal with any further matters arising from its order.
1The Complainant, Mr. Sucha Singh Dhillon, is of East Indian ancestry. He resides in Toronto and was employed as an unskilled warehouseman in the Respondent, F.W. Woolworth Co. Limited's warehouse distribution centre at 2277 Sheppard Ave. West, in Toronto from September, 1976 to May 5, 1978 when he was dismissed from his employment. At first, he had been a packer within the warehouse, but later worked in the order department, filling "orders" of the Respondent by going throughout the warehouse and gathering together the various items of merchandise required. He claims that the treatment he received while employed, and the termination of his employment, constituted discrimination because of race, colour, nationality, ancestry and place of origin, contrary to paragraphs 4(1)(b) and (g) of the Ontario Human Rights Code, Revised Statutes of Ontario, 1970, c. 318, as amended (hereafter referred to simply as the Code), 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, ... colour, ... nationality, ancestry or place of origin of such person or employee.
2There are about 20 to 25 employees of East Indian ancestry in the warehouse, out of a total of some 200 employees (Evidence, Vol. I, pp. 39; Vol. II, p. 180; Vol. III, p. 66).
3I shall review the evidence at some length, using extensive quotations from the transcript, for the purpose of setting forth the situation in the Respondent's warehouse. There were several factual issues, which I have isolated as being: (1) the holidays issue, (2) the discriminatory treatment issue with respect to order filling, (3) the racial slurs and insults on the washroom walls issue, (4) the issue of Sonny Pabla's demotion, (5) the dismissal from employment issue with respect to the Complainant, and (6) the issue of racial slurs and racial name-calling, or verbal racial harassment, with respect to both the Complainant and with respect to the Respondent's warehouse generally.
The Evidence
4Mr. Dhillon testified that some white employees, specifically, within the "order filling" department of the warehouse, often called him racially insulting names, such as "Paki" (Evidence, Vol. I, pp. 22, 23, 52). He stated that he complained repeatedly to the supervisor, and foreman of the department, but the situation did not improve (Evidence, Vol. I, pp. 25, 26, 60, 61). Moreover, his Complaint (Exhibit No. 2) specifies that he was transferred to the order filling section to work in November, 1977, to work with the very persons about whom he had been complaining.
5Mr. Dhillon also described an incident in which one of the "trucks" (a dolly-type machine) used to transport merchandise within the warehouse was, in Mr. Dhillon's opinion, deliberately pushed into him, and although he complained to the personnel manager, "nothing was done" (Evidence, Vol. I, pp. 27—33).
6He also complained of the graffiti directed against East Indians in the warehouse washroom (Evidence, Vol. I, pp. 38, 39).
7As well, he complained that white workers were given "light orders" to fill, as compared to East Indian workers, and that his complaints to his foreman in this regard were not heeded (Evidence, Vol. I, pp. 45—49). It seems that at a point in time after Mr. Dhillon's departure that a new system for order-filling was introduced, to remove any problem of some workers getting lighter orders to fill than other workers (Evidence, Vol. I, p. 125).
8On May 5, 1978, Mr. Dhillon was questioned by his foreman about his productivity in filling orders on the previous day, and Mr. Dhillon says he provided a satisfactory explanation. He was summarily fired shortly thereafter on that day by the personnel manager, and handed a letter of termination (Exhibit No. 7) (Evidence, Vol. I, pp. 33—37).
9After much effort, Mr. Dhillon did find other employment, albeit at a lower rate of pay.
10Bsagwant Singh Pabla, of East Indian ancestry, and employed by the Respondent for some ten years, is another order filler in the warehouse of the Respondent. He testified that there were "racial name-callings, like ... Pakis stink, dirty, Pakis suck, and general verbal harassment," at the warehouse (Evidence, Vol. I, pp. 86, 88, 89). He was promoted as a foreman for about a year and a half (about 1972—1974), but subsequently demoted (Evidence, Vol. I, pp. 92, 102). He testified that during his ten years at the warehouse, no other East Indian had been promoted to the position of supervisor or foreman (Evidence, Vol. I, p. 97), and that some 20 employees, junior to him in seniority, have been promoted since 1970 (Evidence, Vol. I, p. 107; Exhibit No. 9). Mr. Singh also stated that he was moved at one point from the Sheppard Avenue West warehouse to the Scarborough warehouse for about a year (Evidence, Vol. I, pp. 100, 101).
11The evidence was clear that there is a great deal of swearing in the warehouse (Evidence, Vol. I, p. 148).
12Autur Singh Jahunia, 37, of East Indian ancestry, a warehouseman since 1971 with the Respondent, testified. He said that he was called "all kinds of names" at work, such as "Paki, Paki the dog, and Paki stink ... Pakis eat shit" by some white employees, even on occasion by a foreman (Evidence, Vol. I, 171). He stated further that when he discussed the name calling problem with the personnel supervisor, nothing was done and he was told:
A. Well, he gave me — he told me that, you know, "It happens to everybody. When we came to this country, we were called names, too, this and that," and I just have to get along (Evidence, Vol. I, p. 173).
Mr. Jahunia worked with Mr. Dhillon, and testified:
Q. And did you ever see him experience the kind of trouble that you say that you have had?
A. Yes, I did, yes, I did, and I saw it myself, too, because the people that were harassing him, they were shouting all the time. Sometimes they would call, "Cocki", sometimes "Paki". When you are facing them, they will say, "Cocki", but when you turn your face, they will say, "Paki", and then they swear all kinds of things. (Evidence, Vol. I, p. 175)
Q. "Cocki", I see. That is an expression I am not familiar with. What is the meaning of that?
A. I don't know, and I heard this from Mr. Harold Froude — he is present here — and he was the one who used to shout that all the time. And there is another person, Chris Petre, Mr. John Petre's son, and he used to call me "Paki" all the time; and whenever I turned my back, he would shout "Paki". And then recently, three more people involved with Chris Petre, who harass me very much, and they call names, and all, too (Evidence, Vol. I, p. 182).
Mr. Chain Singh Bola, 33, of East Indian ancestry, has also been employed as a warehouseman with the Respondent for some four and one-half years. He also testified that there was racial name-calling directed against him (Evidence, Vol. I, pp. 207—218), and that he complained to his supervisor, but nothing was done about the problem (Evidence, Vol. II, p. 6). However, there was also evidence that he had been rude and insulting to a white employee (Exhibit No. 21).
13Malkit Singh Pabla, 42, testified. He also is of East Indian ancestry and has worked seven years as a warehouseman with the Respondent. He testified as to his problems with a white co-worker.
A. Most of the time, he calls me "Paki", and the words are always in his mouth. And I discuss with him so many time that, "You're a twenty-one year old, and I'm a forty-two year old, and I don't like these words. You keep asking me all the time — why do you keep asking me this silly kind of question: 'Is your girlfriend dead?' Why do you keep asking me these kinds of questions?" He said, "What else do you want me to discuss with you? You want me to talk to you about politics, about the sports?"
I said, "If I am not able to talk with you about sports or politics, leave me alone. Don't talk with me. I don't like to talk with you."
Q. Now, how often would you have this kind of conversation?
A. After every five minutes, because it is a small place, about 150, 200 feet long, and ten guys work over there, and I have to see him; and they see me too, after every five minutes, ten minutes. Whenever I pass through beside him, he always says something to me.
And I complain about this.
Q. And you also mentioned that you have physical problems. What are you talking about?
A. He wants to boxing with me, he wants to fool around with me.
Q. This is always the same person?
A. There were other guys too, but now it is changed. Now they are not bugging me too much.
Q. Now, you are saying he wants to box with you. Did he — have you ever actually been struck by anybody?
A. Pardon me?
Q. Have you ever been hit by anybody?
A. Yes. He always fool around with me.
Q. Now, listen to my question, because it is a very important question. Have you ever been hit by anybody?
A. No.
Q. So when you say he wants to box with you, you mean he is sort of playing?
A. He made me — he held me from here; so many times he hold me from here, from the neck, from my shirt.
Q. Anything else?
A. One time, he messed my hairs three or more times. I went to Mr. Rosano's office. (Evidence, Vol. II, pp. 24, 25)
14Mr. Pabla testified further that he went to see Mr. Petre, the personnel manager:
A. ... And then I talk to him that, "Mr. Petre, I don't know if you know that we people are really having a hard time over here, because everybody picks on us. They call us names, and we are really having a hard time." He said, "Oh yeah, it happened with us, too. When I came to this country, people used to call me 'Limey', so take it easy." His answer was this.
Q. Have you ever complained or ever had any other discussions with people representing management?
A. Yes, last year I went to Mr. Rosano's office, and I complained about Mr. Richard Reed, and Peter McNeil.
Q. And what did you tell Mr. Rosano at that time?
A. Same thing; that these people call me names, they assault me, they mess up my hairs. And he said,
"Okay." And I told him the whole story, that I'm a responsible person; I don't want to make trouble with anybody. And he said, "Okay, I'm going to look after it, but you don't get fight with anybody."
Q. Has anything changed?
A. Mr. Del Vecchio, he told — Mr. Del Vecchio, he came up and he told the guys that your name has came up. That is all, and I stopped talking with them for three weeks, and they did not say anything to me; and after three weeks, they start the same thing again.
Q. Are you still having these problems today?
A. Yes, sir .(Evidence, Vol. II, pp. 27, 28, 29)
15Mr. Pabla testified that Mr. Dhillon had mentioned the name-calling to Mr. Pabla several times (Evidence, Vol. II, p. 29). Mr. Pabla also said that there were "probably about 12 guys" in the warehouse who were troublemakers for the East Indians (Evidence, Vol. II, p. 43).
16Devinder Singh Bassi, 32, also works as an order filler in the Respondent's warehouse. He testified as to an incident he had with a white employee.
A. ... He started shouting on me, and calling me names, and he threatened me, but because it was only one or two months I was full-time, I am on probation, and I didn't say nothing to him. I reported this to my foreman, Mr. Ken Wasyluk, and eventually I reported to Mr. George Medland. And after that, when I was working on the upper ramp, you know, of this order desk, where George Medland and Ken Wasyluk, the foreman, used to take care of that order desk, and he asked me to, you know, stay away from that guy.
I said "Okay. I didn't say nothing to him and this has happened with me." And after that, Mr. Peter Albis came and he just elbowed me, like that, and it hit me on my neck and just lower jaw, over here, and I just cried. And I told Mr. George Medland that it has happened me, "He actually hit me." And he said, "Okay, you do your job." And I don't know what he did; he didn't tell me whether he took an action on him, or he told him to stop it; and like that. (Evidence, Vol. II, pp. 72, 73)
Q. Now, you told us that in that incident in which Peter Albis had an argument with you that he called you names. What were the names that he called you?
A. Like, "Paki, oh you! Hey, where are you from?", like that. (Evidence, Vol. II, p. 75)
17He also testified as to a meeting of six or seven East Indians with a supervisor, about two months before the hearing, complaining of name calling and verbal harassment, and that he did not think any action on the part of management resulted from the meeting (Evidence, Vol. II, pp. 74, 75). He said the East Indians were told to ignore and avoid verbal harassment and to not retaliate (Evidence, Vol. II, p. 86).
18Gurdev Singh Saini, 49, worked in the Respondent's warehouse intermittently from August, 1977 to November, 1979 (Evidence, Vol. II, p. 94). He testified he held a temporary position over that time, and that he left when he was not given a full-time position even though some 30 others (both white and East Indian) were so hired over the period (Evidence, Vol. II, pp. 96, 97).
19Surgit Singh Bhela has worked in the Respondent's warehouse for some six years (Evidence, Vol. II, p. 106). He testified he received verbal racial insults from white employees (Evidence, Vol. II, pp. 108, 109, 111—113).
The witness: He was taking care of the stocking racks. He asked me, he said, "You fuck off, you Paki. I'm not your servant," like that. So I went to my supervisor, Joe Lamourea, and he told me that he would talk to that guy, but he never (Evidence, Vol. II, p. 111).
20Mr. Bhela testified that he complained on several occasions to management, and at least with respect to one offending employee the abuse ceased (Evidence, Vol. II, pp. 104—111, 113, 114, 120—125).
21He testified as to the recent meeting with a supervisor and several fellow East Indian employees about verbal harassment.
Q. Now, what were the points that you raised at that meeting? What were the points?
A. The word was that we are not getting merchandise from these guy, and when we ask merchandise, they bug us, they get mad, and they say, "Fuck off, you Paki," like that, you know.
And Don Negus just told us that we should not answer back, just take those words, and leave them alone, and if we have problems, just to report, complain again to him.
Q. Yes. Now, do you know if Mr. Negus spoke to any of those men that you complained about? Did he go and speak to them and tell them that they should stop that kind of behaviour?
A. Nothing, in my knowledge.
Q. You do not know that?
A. No (Evidence, Vol. II, p. 116).
However, during the investigation of Mr. Dhillon's complaint by the Respondent, leading up to this hearing, Mr. Bhela recollected only a few of the incidents referred to in his testimony (Evidence, Vol. II, pp. 129—131).
22Mohan Gidda, another warehouseman for some nine years with the Respondent, testified as well as to the verbal harassment received by the East Indian warehousemen (Evidence, Vol. II, pp. 143—147), and the fear they had of physical abuse from at least one white employee (Evidence, Vol. II, pp. 133—139). As well he confirmed that at least some of the white employees ceased the verbal abuse, as a result of the complaints of the East Indians to management and that management must have spoken with these offending employees (Evidence, Vol. II, pp. 151—154).
23Jarnail Rana has worked with the Respondent as a warehouseman since 1976. He testified that his foreman, Tony Albis, continuously refused to select him for overtime, but the problem was rectified when Mr. Rana complained to management and Mr. Albis was no longer given the task of selecting employees for overtime work (Evidence, Vol. II, pp. 163—165).
24However, Mr. Rana was also a participant at the meeting with management to discuss Mr. Bhela's complaint that a white worker had pushed a "truck" into him. He testified.
Q. And what did Mr. Rosano say?
A. Mr. Rosano said he has those habits, and, "Do you think he could change overnight?" (Evidence, Vol. II, p. 166).
25Mr. Rana also testified as to verbal harassment.
Q. Now, I understand that you were involved in an incident in which there was name-calling involving a man by the name of Narcisso. Is that correct?
A. Yes.
Q. Did you make a complaint about that?
A. Yes, I made a complaint about that.
Q. Okay, what was the incident?
A. I was picking orders in his department, and I wanted to have the number and he said, "There is another Paki came to this company." And I actually requested him not to say that. "l am a good man if you are good with me." But he continued saying that. And then I went to George Medland.
Q. And did Mr. Medland do anything?
A. I don't know.
Q. Was there any change that you observed?
A. After about five or six days. He was talking to some other people, and saying him, that he made complaint against me.
Then again, I approached him. I said, "I am not a bad man. If you do bad, I'll be bad, but otherwise, I am very good man. Be friendly with me," I told him (Evidence, Vol. II, p. 166).
...
Q. Okay, and were you — did you ever see Mr. Dhillon insulted or taunted because of his racial background when he was working at Woolworth's?
A. Well, once Mr. Dhillon and myself, both, were insulted by Bill English. We both were speaking in our own language, and he started imitating us, and said, "You stupid Pakis, why don't you speak in English? You are in Canada" (Evidence, Vol. II, p. 172).
26Mr. Indirjit S. Pabla has been a warehouseman with the Respondent since 1974 (Evidence, Vol. II, p. 194), and testified that he experienced some name-calling as well (Evidence, Vol. II, pp. 207, 208).
27Kuldip Singh Samra, a vice-president with the Shromani Sikh Society, a religious organization, testified as a character witness on behalf of the Complainant, Sucha Singh Dhillon, speaking very highly of the Complainant (Evidence, Vol. II, pp. 218—220), who received two certificates of merit in 1976 and 1977 from the organization.
28The Respondent also had several witnesses testify on its behalf. Tony Albis, a plant foreman with the Respondent since 1974, testified (Evidence, Vol. III, p. 14), denying that he had used verbal racial name-calling in respect of Mr. Bhela or other East Indians (Evidence, Vol. III, p. 18, 20, 48), and rationalized Mr. Rana's complaint about the overtime allocations (Evidence, Vol. III, pp. 20—20); but admitted that management had spoken to him about the problem, through Mr. Negus (Evidence, Vol. III, pp. 45—47). He said that management had never discussed with him any complaints alleging he was guilty of name-calling (Evidence, Vol. III, pp. 23, 24). He did admit that he heard the word "Paki" used a few times at the warehouse (Evidence, Vol. III, p. 24), and that he sometimes received complaints from East Indian workers about their treatment by white workers (Evidence, Vol. IlI, pp. 26, 30, 31).
29Mr. Albis testified as to his views on name-calling.
Q. It is not possible for somebody to insult you?
A. No, they never insult me when they call me "Wop". You know, I like — maybe some Italian, they don't like to be called "Wop", but to me, it doesn't bother me at all.
Q. So nobody can insult you in any way?
A. No. If, in a joking way, in a funny way, but you know, If, like I talk, person, you know, they start calling me "son of a bitch", or stuff like that, that's a different story altogether.
Q. You do not mind the racial ones?
A. But sometimes like a guy come to me, "Hey, Tony, you son of a bitch." Well, just, I get it, you know; like it doesn't bother me; but if an East Indian were calling me a "son of a bitch" or a "fuckin' Wop", no way.
Q. Well, what is the difference then? You treat them different to how you treat other people?
A. No, no, because they don't like me to call them a "Paki", and I don't like them to call me a "Wop", so it have to be a two-way street, not one-way.
Q. I see. But anyway, you do not think that this name-calling is serious at all? You do not think it is serious?
A. No.
Q. You do not think anybody should be upset by that?
A. Not really, no, because every nationality, they got it, you know; they call "Limey", you know, they calling me "Wop"; that is just a nature on this earth.
Q. You think it cannot be changed; it is just like human nature; something like that?
A. I don't know if it can be changed or not, but me, my opinion, that is just the nature. (Evidence, Vol. III, pp. 37, 38).
30Mr. Albis confirmed the testimony of Surjit Behla and Mohan Gidda that they complained about their alleged problems with Tony Oldale (Evidence, Vol. III, p. 50).
31Joseph Lamourea is stock supervisor with the Respondent, and has been employed with the Respondent for some 30 years (Evidence, Vol. III, p. 69). He testified as to the problem of racial name-calling.
THE CHAIRMAN: l wonder if I could just ask you a couple of more questions.
You said that you find racial name-calling to be reprehensible. In terms of the warehouse there, you have been there a long time with a lot of people; they are working hard; very busy, certainly, from time to time; and there are people of different racial backgrounds coming together. Would you say that — I am not clear from your evidence on this point, the name-calling, whether you would say there is a problem there, or you would say there is no problem, really, or whether you are saying there is a problem there, but it is a very difficult problem to handle, and "When I learn about the situation, I try to get the two people together."
Is it the first situation, there is really no problem, or do you say there is a problem, "But we are just handling it as well as we can?"
THE WITNESS: Well, I would just have to say they are isolated problems to start with, and they mostly arise out of anger, really, when they do occur. (Evidence, Vol. III, pp. 78, 79)
...
THE WITNESS: I wouldn't call it a big problem by any means. There is no pattern to it. It just seems to break out.
THE CHAIRMAN: I take it from what you are saying that people are working together and they get angry with each other, and name-calling results from that?
THE WITNESS: I think that takes care of most of it from what I have seen. That is only my own observation. (Evidence, Vol. III, p. 80)
...
THE CHAIRMAN: I take it that your experience with the company suggests that the way it is being handled is to try to bring the two people together?
THE WITNESS: That is the first step.
THE CHAIRMAN: What would the next step be?
THE WITNESS: The next step would be, if neither one of them gave an inch, then you take it a little bit higher. That is my own personal way of doing it.
THE CHAIRMAN: To senior management?
THE WITNESS: That's right.
THE CHAIRMAN: Have you ever had a case where you have sent it up to senior management on a name-calling matter?
THE WITNESS: No, I haven't, really.
THE CHAIRMAN: Well, I take it that is because you have not had —
THE WITNESS: We have been able to settle it.
THE CHAIRMAN: I suppose you are saying you are not — you do not get repeated accusations about the same person, at least to the extent that you would consider sending it up to senior management?
THE WITNESS: No, no. (Evidence. Vol. III, pp. 80—81)
32Ronald Baker testified, denying, he ever called Mr. Dhillon a racially insulting name or otherwise harassed him (Evidence, Vol. III, p. 85, 88, 89), and said he was never reprimanded by management in this regard (Evidence, Vol. III, p. 86). Moreover, he claimed the incident in which Mr. Dhillon was hit by a truck was an accident (Evidence, Vol. III, pp. 90, 91), and that about forty-five minutes after the accident, Mr. Dhillon threatened him physically (Evidence, Vol. III, pp. 93, 94). He said he was then worried about sometime getting into a fight with Mr. Dhillon, and knew the warehouse rule that both would be fired, (Evidence, Vol. III, pp. 95—96), and therefore, made a written report about the threat.
33With respect to name-calling, Mr. Baker testified:
Q. And we have heard evidence from the witness just prior to you and Mr. Albis as well, quite apart from anybody else, has indicated that the word "Paki" is used from time to time around the warehouse.
Have you heard that word around the warehouse?
A. Yes.
Q. Would you say you hear it quite often?
A. As often as other words, yes.
Q. Then I presume we can agree that when it is used it is directed at somebody of East Indian extraction.
A. Yes.
Q. Now, in the course of the time that you have been at F.W. Woolworth's, can I assume that you have worked with a lot of Italians along with Mr. Albis?
A. Yes.
Q. And I assume that, from time to time, along with your swearing and along with all of your colleagues, that you would from time to time use the word "wop."
A. Oh, yes.
Q. Then, could I also take from that that you would from time to time that you would also use the word "Paki"?
A. Yes.
Q. And when you did that, you would direct it to an East Indian?
A. Yes.
Q. And could it then be agreed that "Paki" is not, frankly, a complimentary term?
A. In my opinion —
Q. I'm not asking you for an opinion. I'm asking you if you would agree that it is not a particularly complimentary term?
A. To them, no.
Q. Then you are aware of the fact, and you have been aware of the fact, that it is not something they regard as a compliment?
A. Yes.
Q. But you've called them "Pakis" from time to time, regardless of that fact.
A. I have, but the only ones that I have ever called — I do not associate that often with them. There are certain ones that I do associate with, and ifs usually only them that I will say "Paki" to, because I know who I'm talking to, and I'm using it as a joking manner.
Q. Okay. You've used it?
A. Yes.
Q. And it is not a compliment. It is not accepted by them as a compliment, generally speaking?
A. Generally speaking. (Evidence, Vol. III, p. 97)
34John Petre had worked at the Respondent's warehouse for fourteen and one-half years, and was personnel manager from about 1973 to the end of 1978 (Evidence, Vol. IV, pp. 6, 7).
35As to the problem of racial name-calling, Mr. Petre's evidence really corroborated that of Mr. Dhillon when Mr. Dhillon said he had complained to management about the problem.
A. Mr. Duffy mentioned to me that there had been a little trouble between Mr. Dhillon and some of the workers.
Q. What type of trouble?
A. General trouble, arguing, things like that.
Q. Did Mr. Duffy indicate to you that any of those problems were racially related?
A. At the time, no, he didn't, no. (Evidence, Vol. IV, p. 9)
...
Q. Now, Mr. Dhillon has testified that he made specific complaints to Mr. Duffy regarding Mr. Froude, Mr. Petre, Ross somebody, Mr. Price, Mr. Baker.
Now, did Mr. Duffy bring those allegations to your attention?
A. He told me that he had mentioned names, but he didn't give me the names. He didn't want to press, you know, to fire.
Q. Did you enquire?
A. I enquired around, yes. Yes, I did.
Q. Now, you indicated just a moment ago that Mr. Duffy mentioned that there had been arguments and you related that to the general problems with Mr. Dhillon. Were those the same problems that Mr. Dhillon may have been referring to when he was mentioning Froude, Petre, et cetera?
A. I assumed so, yes.
Q. Do you recall the exact nature of Mr. Dhillon's allegations? Did Mr. Duffy explain to you precisely what he had said?
A. I can't recall.
Q. Did he mention name calling?
A. He may have done.
Q. Did you, at any time, confront Mr. Froude or Mr. Petre or Mr. Baker about those allegations?
A. Yes, I did.
Q. What exactly did you say, or how was that done?
A. I spoke to them each separately.
Q. Separately?
A. Yes. And I told them that if they had been doing such a thing — if they were doing such a thing, to lay off.
Q. So you cautioned them?
A. I cautioned them, yes.
Q. Did you ask for an explanation from them?
A. Yes, I did.
Q. Did you get an explanation from them?
A. I think one of them said, "It was as much his fault as ours," something like that. (Evidence, Vol. IV, pp. 9—11)
...
Q. What was their response to you?
A. They sort of kept everything, sort of low profile. They didn't want to get things blown out of proportion. If I remember rightly, they just went, "Oh, you know it wasn't anything, just ..." (Evidence, Vol. IV, p. 12)
Q. And you spoke to each one of the individuals that Mr. Dhillon had complained about?
A. Yes, I did.
THE CHAIRMAN: I think he said he spoke to all four.
MR. PERRY: Four, yes, Froude, Petre, Price and Baker.
THE WITNESS: Hm mmm. (Evidence, Vol. IV, p. 13)
Q. Had you been made aware of any complaints of general racial problems in the warehouse whether they were directed to you or not?
A. I think I knew there was a little name calling going on but nothing —
Q. Am I correct, then, after that statement, that isolated incidents had been brought to your attention, either directly or indirectly?
A. They were never brought to my attention. Everyone tried to keep things low and even if you went to investigate anybody or anything, just, you know.
Q. No, I don't know. I'm looking for an explanation.
A. Let me say this, there was a lot of exaggeration, but if it got exaggerated out of proportion, then it came to my knowledge. Then there was something going to happen. They didn't want it to be brought to that level, you know, just keep — you know, it's nothing. You don't understand, forget it. No problem, no problem. (Evidence, Vol. IV, pp. 48, 49)
36Moreover, his testimony really corroborated Malkit Singh Pabla's testimony about complaining to Mr. Petre.
Q. No, no. Mr. Malkit Pabla had indicated to you that there was some racial problems in the warehouse and that is my understanding. I'm not talking about Mr. Dhillon's termination. What he said apart from that, and after Mr. Dhillon's termination, he had specifically complained to you about problems his people were having in the warehouse.
Do you recall that conversation you had with him?
A. I recall the one conversation.
Q. All right. Did you take any action as a result of him complaining to you about those problems in the warehouse?
A. I can't be sure. I don't think there were any names mentioned. I don't think there was anything specific answered. (Evidence, Vol. IV, p. 49)
...
THE CHAIRMAN: Well I might have this evidence down incorrectly, but my recollection is, that his testimony was, he responded to you from the earlier inquiry about the union on the day that Dhillon left saying there was no union but we were having a lot of problems. His testimony was to the effect, that you had said "it was the same with us".
THE WITNESS: I remember saying that, yes,
THE CHAIRMAN: Well, "we came to this country and we take abuse too".
THE WITNESS: Yes. (Evidence, Vol.IV, pp. 51, 52)
37Mr. Petre "gathered" that Mr. Dhillon was "an aggressive person" (Evidence, Vol. IV, pp. 7, 68, 74), and said he was told by Mr. Baker at the time of the truck-hitting incident (Evidence, Vol. IV, pp. 14, 15), and was subsequently told by another white employee, Wayne English, that Mr. Dhillon had threatened to use a knife, (Evidence, Vol. IV, pp. 16, 17). Mr. Petre said Bill Day, a foreman, advised him that Mr. Dhillon had verbally abused Mr. Day by swearing (Evidence, Vol. IV, pp. 20, 21), and that Mr. Rosano had learned of the incident and instructed Mr. Petre to terminate Mr. Dhillon's employment (Evidence, Vol. IV, pp. 22, 23), which Mr. Petre immediately did notwithstanding Mr. Dhillon's entreaties for reconsideration.
A. He told me after he had read the letter, he told me to discipline him, not to let him go. He went down on his hands and knees and tried to kiss my feet.
Q. He went down on his hands and knees?
A. Around my desk and he wanted to kiss my feet, he was pleading, he was begging. He was begging for his job.
Q. So, how did you respond to that, sir?
A. I told him to get up and maybe he should see Mr. Rosano. (Evidence, Vol. IV, p. 24)
38Mr. Petre claimed that two white employees had been summarily fired previous to that time, for insubordination to a foreman in similar circumstances (Evidence, Vol. IV, pp. 26—29).
39There were some obvious problems generally between the East Indian employees and the white employees, and in particular, a reasonable inference was that Mr. Dhillon's problems (whatever their precise nature) in part possibly stemmed from the racial tension in the warehouse. Yet management was ineffective or indifferent to really dealing with both the general problem and also the particular problem of Mr. Dhillon.
THE CHAIRMAN: Well, I guess what I'm wondering then, Mr. Petre is this: It's almost like there was two solitudes here in terms of people working in the warehouse to some extent; that is, there were some problems there. There seemed to have been some problems, and at least with respect to Dhillon, you knew this, you had heard from Duffy when he said he was having some problems with people. He had been there for a year and some eight months, coming into May of '78. He certainly had been a productive employee or at least satisfactory.
THE WITNESS: Average.
THE CHAIRMAN: You found him to develop, when he came back in '77 after being layed off, you used the phrase "explosive person"?
THE WITNESS: Maybe "explosive" was wrong, "aggressive" maybe.
THE CHAIRMAN: In any event, you say that you detected some personality or emotional problems?
THE WITNESS: Yes.
THE CHAIRMAN: Well, I guess what I'm wondering about is this, why would you not talk to Malkit Singh Pabla about that, I mean surely a reasonable inference would be, even accepting all of those things for a moment, surely a reasonable inference might have been that it was related to these problem or problems, whoever was right or whoever was wrong, between the different racial groups.
THE WITNESS: Yes. I talk to so many people on a job like that and I would talk to Malkit, maybe four times a week, now I can't say at what specific time we talked about what things, but we did talk about Dhillon, we talked about most of the East Indians, Mike is and was by me, considered to be the Godfather for use of a better word.
THE CHAIRMAN: Well you certainly, I think you would you [sic] agree with me that you would get the impression from all of their evidence accumulatively for a long time there was a fear about talking about problems and it was better to just go on and do your work and keep quiet. Did you get that impression?
THE WITNESS: I got the impression that everybody was that way, especially towards me.
THE CHAIRMAN: Well, maybe it was everybody but — I guess what I am wondering, I'm just wondering — out touch here — and seeing how you are on the stand here, I sort of wonder if some forcefulness hadn't come from management, say yourself at some point say, "Why don't we all get together and talk about this." maybe in a general sense, and then in a particular sense with respect to Mr. Dhillon, particularly, when you had decided to act upon Dhillon.
THE WITNESS: Hm mmm.
THE CHAIRMAN: In March or May of 1978, now why didn't you do that?
THE WITNESS: I really don't know, I can't tell you.
THE CHAIRMAN: I mean you had something like Malkit Singh Pabla was an obvious link, you trusted him?
THE WITNESS: Hm mmm.
THE CHAIRMAN: He certainly seemed to perform in every sense like a regular employee?
THE WITNESS: He did, a valuable employee, yes.
THE CHAIRMAN: Obviously, there are people of good will who were, I'm sure many, who were white employees?
THE WITNESS: Yes.
THE CHAIRMAN: I guess what I'm just wondering and I'll ask, why all of these things happened, in particular with respect to Mr. Dhillon, without a greater attempt at communication within the warehouse in terms of possible problems where there were true problems, perceived problems, or to what degree?
THE WITNESS: I don't think it was up to me to hold a sign up or anything like that, maybe I should have.
THE CHAIRMAN: I'm not sure what to suggest. I mean, it strikes me as strange offhand that an employee of some eighteen months standing, and accepting for the moment these incidents that you are referring to, he would be terminated like that, when there was at least the possibility of problems that might have caused the personality development when there was at least the possibility that wouldn't have been looked into further. In fairness to him for no other reason.
THE WITNESS: Well things are looked into, you know, but a lot of people, once it comes to light, they don't want to be involved, they just back off and "keep me out of it", they don't want to — and there's a lot of them like that.
THE CHAIRMAN: Well you did have Malkit Singh Pabla?
THE WITNESS: Yes, and Malkit, he used to talk to me about different things, but very little on racial problems, very little. He never mentioned to me about Richard Reed.
THE CHAIRMAN: But didn't it occur to you to go to him and say, "What's with this fellow Dhillon, I'm hearing these things?"
THE WITNESS: I think I did that before he was fired. I think I talked to Mike about it, but at what speed or when, I can't say, but I'm pretty sure that maybe he could tell you. I'm pretty sure we did talk about it. (Evidence, Vol. IV, pp. 67—71)
...
Q. You indicated Mr. Autar Gahuni saying you didn't recall him complain to you about him being called a "Paki" so you didn't remember it. Does that mean it could have happened and you just don't recall?
A. I don't recall. (Evidence, Vol. IV, p. 117)
...
Q. Now, you've got the incident with Mr. English, now we are going to have an incident with Mr. Day, which we haven't spoken about yet. We've got your discussions with Malkit Singh Pabla. Did it ever occur to you, sir, that this might be more than just a few isolated incidents, and there might be a rather substantial problem here?
A. Yes, it did occur to me, yes.
Q. You said before it wasn't up to you to run a seminar. Did it ever occur to you that it might be wise to do something about this problem, apart from responding to individual incidents? In fact, did it ever occur to you that it might be part of your responsibility as the Personnel Manager, or the company's responsibility as the employer of all these people to do a little bit more in that sense than to react in that individual kind of way?
A. I did. I thought it was the company's responsibility and not mine.
Q. It was the company's responsibility, but not yours, is that what you just said?
A. Yes.
Q. But you were the Personnel Manager, weren't you?
A. Yes.
Q. Well, I can't honestly tell you that I know exactly what Personnel Managers do, but is it not part of their responsibility as Personnel Manager to see that the working conditions of the employees are appropriate?
A. Yes.
Q. Would not this kind of treatment suggest that the working environment of East Indian employees was, in fact, inappropriate, wouldn't it?
A. Yes. (Evidence, Vol. IV, pp. 86, 87)
...
THE CHAIRMAN: No, Mr. Lederer is not talking about simply reporting the problem of Mr. Dhillon to Mr. Rosano, but rather saying there was a more general problem about the relationship between the East Indian employees, generally, and some of the white employees.
THE WITNESS: Yes.
THE CHAIRMAN: And that that problem was the responsibility of the company and yourself, and did you, and if you didn't, why didn't you report that general problem to Mr. Rosano?
THE WITNESS: I think I did report it to Mr. Rosano.
BY MR. LEDERER:
Q. In a general way, or only when you heard?
A. I mentioned these things happened.
Q. As each and every one occurred?
A. If it was a serious matter, some incidents like this.
Q. Well, let me ask you the question in a slightly different way. Mr. Petre, did you ever go to Mr. Rosano or say to him it was his responsibility, "Look Mr. Rosano, I think we've got a problem here. I've found there is a problem between the East Indians on the one hand and the white Canadians on the other, and the interaction of those two groups." Did you ever say something like that to him, or the intent to communicate that there was a general problem?
A. I possibly tried but not in so many words, not the words you used.
Q. I'm not suggesting for a moment that you used the words that I used, but what I want to know, is, would it ever occur to anybody in the company that there was a problem that ought to be dealt with in more than a just a reaction to individual circumstances;?
A. Hm mmm.
THE CHAIRMAN: I'm not sure what you're saying, Mr. Petre. Are you saying that you recognize the general problem?
THE WITNESS: I recognize some of it, yes, but I think a lot of them are greatly accepted. That's my opinion.
THE CHAIRMAN: Let me put it this way Did you see a problem that wasn't being resolved?
THE WITNESS: No, I didn't. (Evidence, Vol. IV, pp. 88—90)
...
Q. Whereas, Mr. Pabla, to be fair, said that there were two, and that he had approached you after Mr. Dhillon was fired.
A. No, I approached him after Mr. Dhillon —
Q. I'm sorry, so are you saying that Mr. Pabla did not approach you with a number of other workers to discuss this matter?
A. Not with the other workers, no he never did —
Q. You say that was the first warning that you had. Now, can we agree when you think about it and based on my questions today, that really, there was at least some other evidence for you to go on, something that might have warned you about these problems before that? The complaints of Mr. Duffy, the incident with Mr. English, the incident with Mr. Day, the incident with Mr. Baker, all these things that — on reflection, do you agree there really was a lot of evidence around that might have indicated to you prior to this meeting with Malkit Singh Pabla, there was some kind of problem going on?
A. On recollection, maybe. (Evidence, Vol. IV, pp. 130—131)
40Moreover, Mr. Dhillon's termination was done without either any thorough investigation or without following the Respondent's own written rules for employees.
BY MR. LEDERER:
Q. ... You went to Mr. Rosano —
A. Hm mmm.
Q. — with nothing more to go on than what Mr. Day had told you with respect to the incident of May 5, 1978? Is that right?
A. Hm mmm, plus the other incidents that happened.
Q. And you had no version or no explanation from Mr. Dhillon at that time, and you had no version, and no explanation from what might be called the "independent witness" Mr. Patermo at that time, either, is that correct?
A. That's correct.
Q. I'm curious about one thing you said with respect to Mr. Palermo, that he didn't want to get involved and you said that with respect to —
A. Hm mmm.
Q. I think you may have said it with respect to Mr. English, I'm not sure, but it was with respect to somebody else, and I'm curious about that, you were the Personnel Manager.
A. Hm mmm.
Q. You were in a supervisory position?
A. Yes.
Q. In a management position?
A. Yes.
Q. In a leadership position? Correct?
A. I wouldn't say that.
Q. Well, given the supervisory responsibilities you had, then if you didn't decide to fire people, at least you would discuss that with Mr. Rosano. Are you telling me people could actually refuse to give you information with respect to what went on in the warehouse?
A. Yes.
Q. And that you couldn't find some way to learn the complete story of these incidents from them?
A. Yes, that's right.
Q. Would you understand if I'm a bit surprised at that?
A. Yes, I understand, I was a bit surprised myself too.
Q. Mr. Palermo indicated to you that he had heard some abusive language, I think, but he didn't know who it was from or anything like that.
A. Hm mmm. (Evidence, Vol. IV, pp. 96, 97)
...
Q. Yes, but you agree with me that in the case of the May 5th incident, Dhillon never got a chance to give his side of the story?
A. He wouldn't give — oh, on the May 5th, when he was let go, do you mean?
Q. Yes.
A. No, he wasn't really, no.
Q. Well, that cannot be fair, is it? If a man — if you do not hear both sides, that cannot be fair?
A. No. You've got to hear both sides, I agree.
Q. So you agree with me that he was unfairly dealt with?
A. Well, it wasn't my decision. Let me put it that way.
Q. I did not ask you whose decision it was. You say that you think you should hear both sides of the story?
A. Yes. (Evidence, Vol. IV, pp. 152, 153)
...
Q. Well, witness after witness that was called said that they had no feedback on the complaints at all.
A. A lot of times you never got any further with your investigation. There wasn't always time — and a lot of things.
Q. But you would agree with me that if someone made a complaint, and you were going to investigate it, it is only fair to tell the parties complaining how the matter was resolved?
A. Yes. (Evidence, Vol. IV, p. 154)
41Mr. Petre stated that two white employees had been fired for insubordination, in the same peremptory fashion as Mr. Dhillon (Evidence, Vol. IV, pp. 104, 105). However, the formal procedures had been utilized for some white employees who were fired (Evidence, Vol. IV, pp. 159—160). Moreover, management argues in its interpretation of its written rules of procedure for discharge that it has reserved the right of discretion to discharge immediately for a serious offence and that swearing at a foreman would constitute a serious offence (Evidence, Vol. IV, p. 168).
42Mr. Avin Malik, an East Indian order filler in the respondent's warehouse for four and one-half years, testified. He said that on three occasions, he had received what he considered to be racially discriminatory insults from white employees, that he had complained to management each time, and that the offenders had been dealt with as he did not have further difficulties with them. However, he also suggested that names like "Paki" were often used in a joking way "among ... friends" (Evidence, Vol. IV, pp. 9—16, 27—31, 45). He was of the view that racial name calling is not a general problem in the warehouse (Evidence, Vol. IV, p. 21), and that to the extent there is some name calling, that East Indians "have to give and take a little" (Evidence, Vol. VI, p. 31) and that,
A. ... In a multi-cultural society you have to live with that. You can't have it every way you want it.
Q. So, you believe that all these East Indians should just accept it?
A. Well, they have a different way of thinking than mine. They can't accept it, that's all. That's all I am trying to say. They don't like it, they complain. (Evidence, Vol. VI, p. 36)
...
THE CHAIRMAN: Well, so that we are clear on that, because it was somewhat confusing. Have any of the other East Indian employees at Woolworth, said to you that there is not a problem?
THE WITNESS: They have told me that they have had problems, once in a while. But I don't consider it as a real big problem. That's what I am trying to say. (Evidence, Vol. VI, p. 38)
...
Q. You think they aren't giving and taking?
A. If they call you a Paki, well, okay, what the hell. You are not a Paki, a Paki is a Pakistan person. You are Indians, you are not Paki at all. What the hell, if they call you, they call you, let them do it. He is dirtying his own mouth, not your mouth. That's what I believe. And in those instances that I have been beaten, but I still have that same view, and I will keep it.
Q. You believe that by complaining, they might be making things worse?
A. I don't know about that. They know themselves. I've never really formed an opinion on that. But they have spoiled their relations between other guys in the warehouse.
Q. Well, how do you know that?
A. Before this hearing started, they used to have several friends in the warehouse; white guys, Italian guys, now ask them if anybody speaks to them. Yeah, you still are. (Evidence, Vol. VI, pp. 41, 42)
...
Q. But still you express an opinion that because of these hearings, and because of the complaint, things that have — those who have complained have lost friends and so forth?
A. Okay, you tell me something, you have several friends in the warehouse, all right, you are working in some place, you have some friends. One day you are talking to them, playing with them, they come and play hockey with you, and volleyball whatever the case, the next day, you go out in the Courtroom, and you go and tell them, "Look this guy called me a Paki", and is he going to be your friend? (Evidence, Vol. VI, p. 44)
43Donald Del Vecchio has been personnel manager at the Respondent's warehouse for eighteen months, replacing Mr. Petre (Evidence, Vol. VI, pp. 45, 46). He testified as to his knowledge of the racial name-calling problem.
Q. All right. I would like to refer to another situation. Mr. Gahunia, I believe, has stated that he had been called names by a foreman but that he was afraid to complain. I think Mr. Gahunia indicated that he recently complained to Mr. Rosano. Mr. Rosano promised to take some direct action. And I think the record will show that Mr. Gahunia has stated that you went to him and asked him to identify those employees he had complained of.
Do you recall that situation?
A. Yes, I do.
Q. Would you explain to the Chairman precisely what action you did take as a result of that?
A. At the time what happened, Mr. Rosano said that Avtar had complained about name calling or incidents that were related to racial slurs, what have you, and he said to his recollection there were four individuals involved, he gave me three of the names, and he said, you know, words to the effect "Let's check this out", and I did by going right to Avin Malik — Avtar Gahunia, and I said "Mr. Rosano has brought this matter to my attention. I understand there were four people, he has given me three names, can you fill in the blank", and he said well it was so-and-so, so-and-so, and so-and-so, and he said now, it happens that all that is dying down, and I said, "Oh, well what do you want us to do about it?" He said, "Well, right now it has died down but if it picks up I will let you know." I said, "Okay, that's fine." That was basically the way it was left.
Q. Well, do I understand you correctly, then that Mr. Gahunia said or inferred "leave it alone"?
A. To that extent, yes, because of the fact that things had died down.
Q. Was that the end of the matter?
A. Well, other than the fact that I made notes to myself in what I call my "Documentation file", to the effect that that discussion had taken place.
Q. When you spoke to Mr. Gahunia, did he indicate that the nature of his complaint was merely a problem that he had with these four other employees. Or did he suggest that he was complaining on behalf of himself and others?
A. No, I had the impression it was just involving himself and those four individuals, a personal complaint if you will. (Evidence, Vol. VI, pp. 49—50)
...
Q. Now, I think the last day of hearing, or the day before that, Mr. Malkit Singh Pabla testified that he was having problems with two or three employees in the Gold Room, and that he complained to Mr. Rosano.
Did Mr. Rosano instruct you to speak to those employees who allegedly were bothering Mr. Pabla?
A. Yes, he did.
Q. And did you do so?
A. Yes, I did.
Q. Would you identify those employees by name for the Chairman and would you please indicate the type of action you took?
A. The two fellows were Peter MacNeill and Richard Reeds, R-E-E-D-S.
THE CHAIRMAN: This is in connection with Malkit Singh Pabla?
THE WITNESS: Yes. It was about a hair tussling incident, I think I refer to that. Basically what happened there, I went and I talked to both fellows and it is my practice to sort of not necessarily name names whenever I am talking to an individual about another. And I mentioned to them that it had been brought to my attention, their names had been brought up, that they had been involved in some jostling, some hair tussling, that type of thing. And both fellows acknowledged that yes, that type of thing did happen, and they even questioned perhaps "Come on, how serious was that?" and I said "Well, serious enough that somebody would mention it to me and we would like that kind of thing to stop." And both of them agreed with me at the time, that it would. (Evidence, Vol. VI, pp. 53—55)
...
Q. I don't particularly want to identify these people but it is my understanding that at one time, three people complained to Mr. Rosano as a group about problems in the warehouse. And I think the evidence that Mr. Rosano set out was that he referred it to you for investigation. Putting It that way, it's not fair to you, but do you recall that incident?
A. Yes. The incident took place because of — I guess that you would have to say that there was talk, it had been brought to the attention of Don Negus, the oldest supervisor, and Mr. Rosano, that there were some problems in the warehouse as concerning the East Indian employees. So, Mr. Rosano asked, shall we say a delegation came forward with some of these complaints or remarks. And the incident specifically that you are referring to seems to come up in the discussion with the three employees. When I checked out the story —
Q. Well, first of all, who are the three employees?
A. There was Jarnail Rana, Moh Gidda or Mohan Gidda, and it may have been Inderjit Pabla, or Sonny Pabla, Sonny Pabla.
Q. Okay.
A. And there were a few incidents that were brought up. The line of questioning was, "Well, what type of a thing has occurred?" And there was one incident that was brought up where stock was missing in the area, and when — I believe the fellow involved in that occasion was Mohan Gidda. When he questioned the employee about the stock missing, the fellow said, oh, you know, "f" this and that and he had a few things to say to Mr. Gidda. But at the time that I recall from my notes, there wasn't — that particular thing wasn't really a racial incident, that that fellow has reacted that way to whites, you know, if you can call them that. He reacted to a lot of people in that manner.
Q. Well, did Mr. Gidda indicate that it was racial?
A. I guess when it came out at the meeting, from the point of view of "Well here's an instance" but when we talked to him more about it, I guess it had happened before and he knows the kind of guy that this other fellow is. I don't think that — was that you could say that that was racially initiated.
Q. Well, did Mr. Gidda indicate to you at that meeting that someone in fact had called him a racially insulting name, or was it simply profanity?
A. On that occasion I believe it was profanity.
Q. Did Mr. Rana or Mr. Pabla characterize their problem in a different way?
A. No, they just sort of felt that it was happening to them only, if you understand what I mean by that. I think what they were saying was, "These are some of the problems that we as East Indians run into, somebody swearing at us like this when you can't find stock." Or, in another case that was brought up when somebody turned a corner and the fork lift operator had his fork up as he was turning the corner to get some merchandise and the fellow tried to squeeze between the rack and the truck. This guy, "What the hell are you doing. I'm trying to drive in there, I could have decapitated you. You have got to be careful." That type of thing, and there may have been some profanity partly involved in that.
Q. Where did you hold this meeting?
A. In Mr. Rosano's office.
Q. Was Mr. Rosano present?
A. Yes, he was.
Q. Now, between Mr. Rana, Mr. Gidda, and Mr. Pabla, during that meeting did any one of them report to you any specific situations where they alleged they were called a racially insulting name?
A. I would have to say no.
Q. Well am I correct then, that they were basically attempting to characterize some problems in the warehouse?
A. Yes. There was a concern, if I can expound on that. I think there was — there seemed to be a concern on their part that their safety, if you will, that their well being was involved because of, as I say, things to do with fork lifts and trucks bumping into them and that type of thing.
As I recollect, my notes are headed up to that with respect to — we talked about safety, or the conversation swayed that way. It wasn't a specific name calling incident that was brought up.
THE CHAIRMAN: But Mr. Del Vecchio, apart from the name calling and apart from who was making the correct and who was making incorrect inferences about all the situations. The fact that you had three East Indian employees, the way the problem had been described to you, did you understand that the problem has racial overtones; that is, that it is a problem because these people were East Indians and that was a factor in the problem, or was it just pure chance, to your understanding, that they happened to be of one racial group?
THE WITNESS: Okay, if I understand that, let me go back to how it all came about. The supervisor brought it to our attention that some East Indian employees, or actually all of the East Indian employees that were in his section, as I recall, had come up and were saying, "You know, there is problems here." They wanted something done about it. So, he went to Mr. Rosano and let him know that and it was explained that "Okay, we can't deal with maybe all of the people in the room, because of the work that had to be done out there so, certainly, we would welcome a delegation if you want to put a label on it."
So, indeed, it was to discuss problems that the East Indian employees felt they were having in the warehouse about problems in general, not specific name calling incidents, that sort of thing.
THE CHAIRMAN: Well, you said that they expressed concern about their well being, safety. I guess that what I am asking is, from your understanding, did you understand them to be concerned about their well being and safety in the context that it being East Indians?
THE WITNESS: Oh, they made comments to that effect, yes, that these incidents happened because they were East Indian. (Evidence, Vol. VI, pp. 58—62)
44Mr. Del Vecchio's notes of the meeting confirm that the East Indians had concerns about the manner in which they were being treated by white employees (Evidence, Vol. VI, pp. 66—69; Exhibit No. 22).
Q. It is important to indicate to the Chairman how you did follow up on that.
A. Well, I had a conversation with Tony Oldale. I told him, again, not — well, in one particular incident I had to name names because, even though I didn't mention the name, he knew the incident that involved a fellow, Surjit Bhela where Tony had apparently bumped a truck in the aisle and Mr. Bhela scraped his, as I remember, the back of his ankle. And Mr. Bhela's story and Mr. Oldale's story as to how the ankle got scraped differs somewhat.
So, basically what I had to do at that time was say to Tony, you know, "Your name has come up in these instances and it would be a good idea if you watch your consortment out there with everybody because, as I said, you know, other people had mentioned your language and stuff like this." and, "Oh, I know but I am an old Navy man and you know, we talk like that." And I said, "Well, as long as you understand what I am trying to tell you today and hopefully go out there and change accordingly." That's how it ended. (Evidence, Vol. VI, pp. 70—71)
...
THE CHAIRMAN: Well, all right, now I'm just trying to get it clear. There is obviously an allegation that Tony Oldale was using verbal abuse. Were they also, in terms of the concern about — or fear about their well being, was that concern directed at him, or him and others, or others, or what?
THE WITNESS: I would have to say it would be him and others, but what they referred to were specific instances that involved him. (Evidence, Vol. VI. pp. 74—75)
...
Q. Now, would you be prepared to agree with me that in fact, over your short period of time with Woolworths, there have been a number of incidents. a number of situations which would point to racial misunderstandings in the warehouse at Woolworth's?
A. Among the numerous complaints that are raised, yes, there have been some.
Q. And would you agree with me, at the hearing, that some of these things that you've mentioned today are examples of those kinds of incidents?
A. Yes.
Q. Well, I presume that you would agree with me, for example, that Mr. Avtar Gahunia came to see you, regardless of what the final words of the matter may have been. So far as you indicated earlier that when he comes and says to you somebody called me a Paki, three or four people, I understood Mr. Rosano's evidence that it was three, you said four. That that kind of name calling, that kind of use of that kind of word is not something which is to be promoted at the warehouse by foremen?
A. All right. First of all, that is not to be promoted or tolerated, no. Just to clarity that, he did not come to me, I went to him. He had gone to Mr. Rosano.
Q. What I am saying is, no, it did happen.
A. That's basically why we went to him, why Mr. Rosano came to me to go to him because we don't tolerate it.
Q. It did happen. Is that correct?
A. I have to assume it happened.
Q. Our assumption is that the word happened, that the use of the word occurred?
A. That's our assumption.
Q. And you would agree that that's an indication of the racial taunting, and as you said yourself, unacceptable?
A. Correct. (Evidence, Vol. IV, pp. 107—109)
...
Q. Did you see it as having racial overtones?
A. I saw it in the light that Mr. Malkit Pabla brought it up to me. In other words, he was saying that what they were doing was because he was an East Indian, but I also see it among Caucasians or other minorities, whatever. And at that time, when I see it, I will go up to them and I will tell them, "Don't do that, that's horseplay, and that's not tolerated here."
Q. You accepted, at least in part, Mr. Pabla's interpretation that this had racial overtones, that it happened in part because he was East Indian?
A. Yes, and I accepted the fact that he didn't want to cause trouble with them and I then played it the way he had more or less suggested to me, that he didn't want to, you know, upset everybody but could I please get the message to them. And I said, "Yes, I will." And I did.
...
Q. All right. There are three separate incidents, which you have agreed may have some racial overtones to them?
A. Yes, I don't like the word pattern, but I'm prepared to accept that. (Evidence, Vol. IV, pp. 111—112)
...
Q. It was clear to me that a lot of the problems they discussed were problems that concerned them as East Indians, but not problems related to safety.
A. That's very correct, sir. So, I may —
Q. So, in that context, can we agree that this meeting indicated to you or in retrospect, should have indicated to you that there were racial tensions on the floor of the warehouse?
A. Racial tensions among certain individuals, yes because — well, the fact of the matter is, sir, we have employees committee, and we have two East Indians out of five representatives from the work force on that committee, and we, at the employee's committee meetings, are there to discuss matters of safety. We are there to discuss conditions of work, wages, anything and everything that pertains to the overall benefit of the employees, all of the employees in our warehousing and distribution. And these things never came up at those meetings.
So, the point is, they have other occasions to bring up this kind of stuff.
Q. I appreciate all of that. Now, I would like you to answer the question.
The questions was — I think it only requires a yes or a no answer, having regard to the fact that the meeting was to discuss problems that these people perceived they were having as East Indians, and admitting now that an awful lot of these questions dealt with items other than safety. Do you agree, in retrospect, that that meeting should have indicated to you that there were serious racial tensions on the floor of the warehouse?
A. I must confess it's a difficult question to answer.
Q. Take all the time you want.
A. It indicated to me at least, that these employees had some concerns about it having racial overtones, yes.
Q. So, now ...
A. What I am getting at is the fact that we do have other channels to discuss such things and if it was a discussion to talk about discrimination solely, then there would have been more talk about discrimination than things about safety. But the fact that everything came up, it's a question as to how some of these things are perceived, just as you were trying to get me to agree with you on. I think you will agree with me on it.
Q. Well, what I am driving at is simply this; there are an awful lot of indications available to you demonstrated that there were racial tensions in the warehouse. And have you ever considered, or in fact have you ever responded in a general way to those complaining[?] Have you ever tried to attack the problem at the root, rather than simply on an individual basis?
A. I think, yes.
Q. All right, how[?]
A. By handling the complaints, as they come up, by taking one constant approach to these things as they come up. (Evidence, Vol. VI, pp. 118—120)
45Harold Froude, an order filler for the Respondent, also testified, denying that he had ever verbally harassed Mr. Dhillon or that he intended to hit him with the truck in respect to the truck incident complained of by Mr. Dhillon (Evidence, Vol. III, pp. 131—133). However, he did say the words "Paki" and "Wop" are often used in the warehouse, as well as general swearing (Evidence, Vol. III, pp. 137, 138). He also said that Mr. Dhillon often mistakenly complained to Mr. Froude that he was calling Mr. Dhillon "Paki", when in fact, according to Mr. Froude, only the term "cocki" was being used which Mr. Froude said is commonly used in Newfoundland to mean "friend" or "pal" (Evidence, Vol. III, pp. 140, 141). He also admitted that Mr. Dhillon might easily have "misunderstood" the truck pushing incident as deliberate given its circumstances (Evidence, Vol. III, pp. 142, 143).
46Mr. William Day, foreman to Mr. Dhillon testified that Mr. Dhillon was a generally cooperative employee but was twice cautioned by Mr. Day for not being polite in dealing with other employees (Evidence, Vol. III, pp. 152, 153).
47Mr. Day further testified that when he questioned Mr. Dhillon about his production May 5, Mr. Dhillon,
A. ... At that time he started yelling, swearing, and I turned around and told him, I said, "Listen, I don't swear at you so don't you swear at me. So let's sit down in the chair and we'll talk about it.
Q. And is that what happened?
A. That's what happened. I never swore back at him once.
Q. Well, when Mr. Dhillon arrived at your desk, did he immediately start to yell, or did he attempt to explain first?
A. He never tried to explain, because I was asking him why he only had 26 lines for the day, and then he started yelling and swearing. That's when he raised his voice.
Q. Now, when he started yelling at you and cursing at you, what precisely did he say?
A. Exactly? I'm trying to remember. It's very hard, but something about, "Why are you fucking discriminating on me? Why are you picking on me?"
Q. Did he use the word "fucking"?
A. Yes. (Evidence, Vol. III, p. 154)
...
Q. Was it a case that he blew up all at once? Was that what it would amount to?
A. I would say he blew up all at once. (Evidence, Vol. III, p. 158)
48It is to be noted that Mr. Dhillon inferred from the situation (whether correctly or incorrectly) that he was being discriminated against (Evidence, Vol. III, p. 169).
49Mr. Day said that Mr. Dhillon gave a satisfactory explanation as to his production, however, Mr. Day reported Mr. Dhillon's swearing at Mr. Day, to Mr. Petre, the personnel manager (Evidence, Vol. III, pp. 169, 170). He was surprised that this resulted in Mr. Dhillon being fired (Evidence, Vol. III, p. 169).
50Mr. Day agreed that the word "Paki" is "quite often" used, and in a derogatory manner, in respect of East Indians throughout the warehouse (Evidence, Vol. III, pp. 163, 164). although he personally never uses it and has not heard it used directly against an East Indian. However, he also stated,
Q. I see. So before you came to this room here, you never even thought about it? So all of these East Indians who came here and related all the difficulties they have, you were completely oblivious to any problems that they had?
A. No.
Q. You didn't know that they had any problems?
A. I wasn't oblivious, but nobody ever complained to me that they had a problem. Now, if they had of complained I would have done something about it. (Evidence, Vol. III, pp. 183, 184)
...
Q. Okay. Now, did any of the senior management ever speak to you about the problem of racial slurs and so forth?
A. No.
Q. And you have never seen any written communication of any kind with respect to that problem?
A. No, I have not (Evidence, Vol. III, p. 193).
51Mr. Don Rosano has been general manager of the Respondent's Sheppard Avenue warehouse distribution centre since January 1, 1977, and worked at that location for some fifteen years (Evidence, Vol. IV, p. 14). He testified as to Mr. Dhillon's termination of employment.
Q. Were the details of that incident brought to your attention by Mr. Petre?
A. Yes, they were.
Q. And could you explain what those details were?
A. The details were that there were some hollering, swearing toward his superior who was Mr. Bill Day. He refused to do what Mr. Day had indicated at that time and I felt again, here, that since Mr. Dhillon did not listen to Mr. Bill Day that his termination would definitely be in order. (Evidence, Vol. V, p. 16)
...
Q. Now did Mr. Petre bring the Dhillon incident to your attention, the insubordination with Mr. Day, the alleged insubordination? Did he come directly to your office to discuss that with you?
A. Yes, he did.
Q. Who would have made the final decision to terminate Mr. Dhillon?
A. I would.
Q. It may seem like duplication, but I would like to ask you, Mr. Rosano, what was that decision actually based on?
A. Insubordination towards a superior. (Evidence, Vol. V, p. 17)
...
Q. So I am correct that your decision was based on the information Mr. Petre had supplied you with?
A. That is right. I had not cause to question Mr. Petre's investigation. .
Q. All right. Now once your decision had been made to terminate Mr. Dhillon did you instruct Mr. Petre to terminate him?
A. Yes, I did.
Q. Do you recall specifically what those instructions were?
A. Just that he should be terminated on insubordination toward his superior. (Evidence, Vol. V, p. 19)
52Mr. Rosano stated that termination was simply on the basis of the incident with Bill Day, and not because of any earlier situations involving Mr. Dhillon which Mr. Rosano knew nothing about. (Evidence, Vol. V, p. 60)
53Mr. Rosano stated that he thought the termination should be immediate, rather than the progressive discipline procedure of the Employee Handbook followed, because it was not a normal situation.
Q. Why would you feel that this is not a normal situation?
A. Because of the action he had taken against a superior in the warehouse. If this was allowed to linger on or if this was allowed to be handled lightly, I felt that we would lose control. The supervisors and the foremen would, I think, would suffer from any lack of disciplinary action.
Q. Perhaps I could ask it in another way; does the procedure that we are speaking of apply to insubordination to a superior?
A. No, it would not. (Evidence, Vol. V, p. 20)
...
Q. Do you have any knowledge of any other employees complaining about Mr. Dhillon's conduct in the warehouse?
A. No, I am not.
...
54Mr. Rosano was cross-examined effectively by Mr. Lederer, Commission counsel, on the point of interpretation of the Handbook (Evidence, Vol. V, pp. 68—76). In my opinion, the factual situation with respect to Mr. Dhillon, swearing at a foreman, is insubordination to a foreman, which is contemplated within the progressive discipline procedure of the Employees Handbook, but is not so extraordinary that it is beyond this regime and a matter for preemptory dismissal.
55In cross-examination, Mr. Rosano admitted that in hindsight, the termination perhaps took place too quickly.
Q. And Mr. Petre told us he didn't discuss the matter with Mr. Dhillon so apparently you didn't have Mr. Dhillon's side of the argument, so I am asking you now, knowing what you do now, do you consider that the man was fired for sufficient grounds?
Mr. Petre has told us he didn't discuss it with Mr. Dhillon.
A. Well again, at that particular time, the report indicated that it was investigated, that this incident had taken place.
Q. Don't misunderstand me, Mr. Rosano, I am not suggesting you knew at the time, I can't suggest what you knew at the time, I am asking you though, knowing what you know now, having heard Mr. Petre give his evidence. having heard Mr. Petre tell us that he never discussed the matter with Mr. Dhillon, knowing as you must know, that the report which Mr. Petre gave you was based only on what Mr. Day told you, do you still believe, knowing what you know now, that you had enough information for you to fire Mr. Dhillon at the time at which he was fired?
A. Based on today's information, the information we have as of today, I think we probably would have carried on a little further.
Q. And investigate the matter?
A. Yes. Mm hmm.
Q. Can I assume that someone might have at least discussed the matter with Mr. Dhillon?
A. Yes.
Q. And can I assume, having heard what Mr. Day has said, that it might have been taken a little further with Mr. Day?
A. Yes.
Q. All right. And can I assume that unlike Mr. Petre you might insist on hearing the version of the independent witness?
A. Yes. (Evidence, Vol. V, pp. 62—66)
56Mr. Rosano testified that no notice was posted on the warehouse bulletin board dealing with racial name-calling (Evidence, Vol. V, pp. 28, 29).
57However, counsel for the Respondent referred to the question of notices being posted, and there was not disagreement with his statement on the point by other counsel,
MR. PERRY: ... One of my concerns is that it has come up in evidence already, that someone had indicated to Mr. Pabla there would be notices posted in the warehouse by the company condemning racial name-calling or at least establishing a policy in the warehouse. Now that is quite true that that was to be done, but that directive was to come from the head office. My concern is we, at no time, the company at no time felt that this investigation had been concluded and there is another letter which I propose to submit in evidence indicating the company agreed to post notices, agreed directly with the Commission to post such a notice, but we were never advised whether or not that was acceptable by the Commission.
It is not that the company is adverse or has refused to post notices or is adverse to that principle. The problem it that at no time did we receive instructions to do it. (Evidence, Vol. V. p. 37)
58Mr. Rosano testified that he had heard about some of the complaints of racial name-calling in the warehouse.
Q. Do you recall Mr. Jahunia complaining to you about racial name-calling by anyone?
A. Yes, he did. He did complain to me.
Q. And just to identity that — the circumstances who was the person who allegedly did this?
A. He had named three individuals.
Q. Who were those three?
A. Mr. Cyril Cook.
Q. Cook?
A. Cook, C-o-o-k. Mr. Chris Petre. I think Mr. Ed Robinson was another.
Q. What action did you take as a result of that complaint?
A. I had turned this over to Mr. Del Vecchio, my personnel manager.
Q. Did Mr. Del Vecchio report back to you?
A. Yes, he did.
Q. And what did Mr. Del Vecchio tell you?
A. That he had interviewed the three individuals that were accused of name-calling.
Q. Yes? What else did he tell you?
A. Well, he interviewed the three individuals and that I believe they indicated that they did not do any name-calling. I believe in this particular case here the name-calling was not directly to his face, it was a case of somebody hollering from a distance away, a little distance away. And apparently, these gentlemen were in that particular area. I assume that it was those individuals.
Q. Well am I correct then, that someone did yell something in the warehouse?
A. Yes.
Q. And what was yelled, do you know?
A. I think he indicated that they just hollered, "Paki".
Q. Is it your understanding then that someone in the warehouse yelled, "Paki", but it was denied by those three individuals?
A. Yes.
...
Q. Mr. Mohan Singh Pabla stated that he complained to you last year about a Mr. Reid and a Mr. McNeil, I believe. Do you recall that incident?
A. I recall that one, yes.
Q. And did you take any action at that time?
A. Yes, I did. I turned it over to the personnel manager.
Q. And who was that?
A. Mr. Del Vecchio.
Q. Did Mr. Del Vecchio report back to you?
A. Yes, he did.
Q. What was that report?
A. That he interviewed the two gentlemen involved and that they indicated that they did — I think the words was used "fooling around".
Q. So both men, both Mr. Reid and Mr. McNeil admitted that there was some racial name-calling, is that right?
A. No racial name-calling, no. It was — they said that they were fooling around and they did mess up Mr. Singh's hair and apparently Mr. Singh did not take too kindly to that. That was the complaint that he made to me.
Q. Did Mr. Del Vecchio indicate to you what instructions he had given those two men?
A. Not to do that again.
Q. All right. Now Mr. Surjit Singh Bhela has testified that he complained to you and to Mr. Del Vecchio that Mr. Oldale had intentionally struck him with his truck.
Do you recall that incident?
A. Yes, I do.
Q. And what action did you take, if any, in that situation?
A. Again this was turned over too to Mr. Del Vecchio to follow through.
Q. And did he report back to you?
A. Yes, he did.
Q. Could you explain what Mr. Del Vecchio told you?
A. That this particular incident did not take place. Mr. Oldale denied that.
Q. Did you get back to Mr. Bhela?
A. Yes, we did. Yes, we did.
Q. Did you speak with him yourself?
A. I believe I did, yes. It was after — it was after talking to Mr. Oldale.
Q. All right. Mr. Bhela claims that a Mr. Negus called a meeting of seven to eight East Indian employees in the warehouse to discuss the problem involving Oldale and Mr. Crombie. Are you aware of that meeting?
A. No, I am not, no.
Q. You are not aware of it?
A. No, I am not. (Evidence, Vol. V, pp. 39—43)
59However, Mr. Rosano said the subject of name-calling had never been raised at an Employees' Committee meeting attended by him (Evidence, Vol. V, p. 57), even though East Indian employees have been on the Committee (Evidence, Vol. V, p. 59); however, East Indian membership on the Committee seems to be a recent development (Exhibits No. 18, No. 19).
60Mr. Rosano distinguished between the situation involving harassment of Malkit Singh Pabla and the incident leading to the firing of Sucha Singh Dhillon.
Q. Okay. But you heard about the ruffling of the hair?
A. Yes.
Q. So you have got somebody again, physically abusing a fellow warehouseman, he is touching him, messing his hair up?
A. Okay.
Q. Okay. Now, and in this case you say that Mr. Del Vecchio interviewed the person. They admitted that they were fooling around, they admitted they were messing his hair, so they admitted to this physical treatment and they were told not to do it again, is that right?
A. Yes.
Q. Now, in Mr. Dhillon's case, okay, we have got somebody, who without any prior complaint, as we have been over it before had an argument with a foreman and swore at him and was fired.
Now, Mr. Rosano, can you honestly tell me that treating somebody — dealing with somebody physically is less serious than the kind of verbal argument that took place between Mr. Day and Mr. Dhillon?
A. The physical contact here was taken in the context of playful actions. He wasn't actually hit or hurt in any way, maybe feelings were hurt, yes, but physical hurt, no.
Q. Did Mr. Pabla think it was funny when he came to speak to you about it?
A. No, he didn't.
Q. All right. So who thought it was funny?
A. I believe the indication here, was that it was just — I think the words was used, "fooling around".
Q. All right. So you have got the aggressors who think it is pretty funny, okay; the person who was attacked, he takes it seriously.
A. Right.
Q. And you are prepared to accept that it was just fooling around and you let it go without a warning?
A. Mm hmm.
Q. Yet you deal with a man in Mr. Dhillon's position, where all they were talking about is a verbal argument and have him fired.
Now again, does that seem to you to be fair, to be an equitable treatment of two different situation?
A. Again here, I think it is a case of dealing with, in the case of Mr. Dhillon, I treated it as insubordination to a superior, where the other one was just a case of some kind of a playful action.
Q. Well, again, Mr. Pabla didn't think it was playful.
A. True.
Q. Would you not agree with me, that, for it to be true, that all participants would have to find it such?
A. I guess it would.
Q. And it would be pretty easy for what I determined aggressors to think it was funny since there was no direct harm to them, but it must have been pretty frightening for Mr. Pabla, do you not think? He was obviously frightened. He came to see you ...
A. He was disturbed about it. (Evidence, Vol. V, pp. 102—104)
61Moreover, Mr. Rosano knew at the time that Mr. Pabla regarded the harassment of him as racially motivated.
Q. So you took it in terms of to be discriminatory.
A. All right.
Q. And you took it that way when you were first advised of it by Mr. Pabla?
A. Right.
Q. All right. So you did have a notion that there was discrimination or discriminatory aspect to it when you received the complaint?
A. He indicated that so ...
Q. He told you that specifically, didn't he? Mr. Pabla?
A. He felt that it was in that light.
Q. All right. So you were made aware of that potential connection when Mr. Pabla came and complained to you?
A. Yes. (Evidence, Vol. V, pp. 109—110)
...
Q. I see. Now with respect to the complaints made against Tony Oldale. I understand that four persons came to see you with respect to this individual, is that right?
A. Who was the individual involved?
Q. Tony Oldale.
A. Okay. Tony Oldale. three people came to see me. (Evidence, Vol. V, p. 140)
...
Q. He didn't. Okay, now these individuals spoke to you and I think you said you referred their complaint to Mr. Del Vecchio, is that correct?
A. Yes.
Q. And he reported back to you and you took no further action because you thought that the complaints were not substantiated?
A. No, it was my recommendation on that to follow through with the investigation. We do not have a full report.
Q. Oh, this is the one you don't have a final report on after all the months. I see.
I see that you took quick action with respect to Sucha Singh Dhillon. The very same day you got the complaint you took action but you allowed this one to run into weeks before you took any action. Is there a reason for that?
A. I think the situations are different here.
Q. Well it involves employees, both of them involve employees, don't they?
A. Oh, everything involves employees.
Q. Is it different because in one case the man is East Indian and in the other case he wasn't?
A. Absolutely not.
Q. Well what is the difference?
A. One was involving insubordination toward a superior.
Q. Yes.
A. And the other one was an action that had been taken within the warehouse as to — this was one individual reportedly bumping into a truck.
Q. Well, they put it to you in the context of a racial assault, you don't think that is serious that you should take action immediately?
A. We did take immediate action. It is being investigated.
Q. But you took immediate decisive action in Mr. Dhillon's case?
A. I took immediate ...
Q. And there in Dhillon's case you only have one report.
A. We took immediate action with the other case as well.
Q. And in that case and in this case with Tony Oldale you had three — in your version and in mine, as I suggested to you, four persons who complained. Do you think that there is a disparity in treatment there where you have — where you took action based on one report, which you knew wasn't thoroughly investigated?
A. Well ...
Q. And there you have three or four complainants coming to you and you just continue an investigation.
A. In the case of Dhillon, what was established at that time, it was insubordination. In this particular case with Tony Oldale there was an indication that there wasn't any stock available. It was a case of one truck bumped another and that one hasn't been established yet.
Q. So then, what you are saying is that on a slight matter you do a great deal of investigation, in your opinion, but a serious matter you take decisive action right away. Is that what you are saying?
A. A great deal of investigation?
Q. Well I take it ...
A. Like I said ...
Q. Mr. Del Vecchio is investigating still, so he is doing a great deal of investigation?
A. I don't know what is being done. It has been turned over to him to look after it.
Q. Well why didn't you make a similar investigation in the case of Mr. Dhillon?
A. There was an investigation made by the personnel manager at that time and his report came back and indicated this actually happened. (Evidence, Vol. V, pp. 140—143)
62However, as of the time of the hearing Mr. Rosano was of the continuing view that there was not any real problem of racial discrimination within the warehouse.
Q. ... Now, what I am asking you is whether or not you don't perceive that there is a general problem in your warehouse involving the use of racial discriminatory acts and words?
A. No. I don't.
BY MR. LEDERER
Q. So in your view, since you don't see the problem, I presume that it doesn't require any particular action from you as manager, in your view?
A. I don't follow your line there.
Q. Well you don't see a problem, so you are not going to do anything is what I am saying.
A. I guess you could put it that way, yes. (Evidence, Vol. V, pp. 123—124)
...
Q. Very well. Now, I think, as I understand it you told Mr. Lederer that you don't think — I am just paraphrasing, I am not saying these are your words — but, you don't think the racial problems of the warehouse were widespread enough or acute enough to constitute a problem. You don't recognize it as such?
A. Not a serious problem, no.
Q. Not a serious problem or not a problem?
A. Not a problem.
Q. Not a problem. Well I want to know then, I want to know then if you feel that all the persons who have complained, who you have been hearing complaining, in your opinion if it is an imaginary problem rather a real one ...
A. I guess I could only react on the, if you want to call it, "complaint" that was directed to me. They are the only ones that I know of.
Q. Yes. And they were not enough for you to recognize this as being any problem then, or not serious enough, which is it? Is it they were not serious enough or that they ...?
A. I think it was a case of not serious enough.
Q. Not numerous enough? Not so many complaints?
A. That's right.
Q. Is that it?
A. Right. Depending on what action you want to take. The individual complains and we look into and investigate it. I don't know what you could do beyond that. (Evidence, Vol. V, pp. 137—138)
63In reply, Mr. Dhillon said he never threatened anyone with a toy broom (Evidence, Vol. VI, p. 161), and that he did not get angry with, or swear at Mr. Day (Evidence, Vol. VI, pp. 164, 165). He denied that Mr. Petre had warned about his threat of stabbing, as set forth in Mr. Petre's records (Exhibit No. 6) (Evidence, Vol. VI, pp. 173, 177).
64Mr. Sonny Pabla testified that after the commencement of the hearing, to the date of his reply evidence (two months later due to an adjournment) the washroom walls were cleaned up, and that racial name calling "never happen now" and there are no longer complaints by the East Indian employees with respect to name calling (Evidence, Vol. VI, pp. 177, 178). He testified that "Everybody is friendly to each other", and that this harmony has come "from the discussion of those problems" between the co-workers (Evidence, Vol. VI, p. 178, 180).
3. Findings of Fact with Respect to the Evidence
65I shall now summarize the issues arising from the evidence, and also make specific findings on the evidence, in so far as I have not done so already to this point in the decision.
(1) The holidays issue
66There was a suggestion of discrimination with respect to the East Indian employees on the basis that they could not easily obtain for holidays the longer periods (four to six weeks, through extending the normal, paid vacation of two weeks by an unpaid period) required to travel to India. Apparently, the Respondent was very flexible in this regard historically, but had changed its vacation policy in recent years. However, management gave evidence that it was necessary to sometimes constrain the length of holidays at certain periods of the year to meet the production needs of the Respondent (Evidence, Vol. V, pp. 47, 49, 53, 54, 55, 165; Vol. VI, p. 189; Exhibit No. 14). I accept this evidence, and find that on all the evidence, the Respondent's vacation policy was administered for proper business reasons, without discrimination toward East Indian employees, and indeed, with reasonable accommodation for its East Indian employees' needs (Evidence, Vol. II, pp. 167—170; 180—187; Exhibits No. 14, No. 17, No. 18).
(2) Discriminatory treatment issue with respect to order filling
67Another issue was whether workers who are East Indians were sometimes given more onerous orders to fill than white order filler warehouse employees. I think there may have been some isolated incidents historically to support this accusation, but it is clear that, to the extent a discriminatory practice may have existed or seemed to exist at one time, that management introduced a modification to the order filling system to make sure that fairness was done and seen to be done in respect of this problem (Evidence, Vol. II, pp. 159, 160).
(3) Racial slurs and insults on the washroom walls issue
68There was much evidence about the racial insults on the washroom walls. It is not disputed that there was a considerable amount, although it seems there was a great deal of graffiti generally on the washroom walls (Evidence, Vol. II, pp. 118, 119, 148, 149). The evidence was that the walls were regularly washed, painted in the "normal rotation" (Evidence, Vol. V, pp. 80, 81), and that management would dismiss any employee caught writing on the walls (Evidence, Vol. III, p. 41). This despicable practice of racial insults upon the washroom walls is difficult to control, but certainly not condoned by management. Moreover, I do not think there was sufficient evidence in the instant case to say that management did not take reasonable steps to control the problem. These are practical limitations upon the controls it might impose.
(4) The issue of Sonny Pabla's demotion
69There is the issue of Sonny Pabla's promotion to foreman and subsequent demotion. Only the vaguest of reasons were given for the demotion (that Mr. Pabla had some sleepless nights and/or he might not be able to control the men under him (Evidence, Vol. III, pp. 52, 53, 60, 72, 73; Vol. IV, p. 40)). His demotion appeared to be almost a whimsical decision, and involved no communication between his supervisor, who regarded him as performing very satisfactorily, and management (Evidence, Vol. III, pp. 51—63; Vol. V, pp. 96, 97). Sonny Pabla was the only East Indian worker ever promoted (Evidence, Vol. III, p. 71) and seemed to have been at least as productive as his two replacement successors in the position (Evidence, Vol. III, p. 74). His attendance at that time was satisfactory (Evidence, Vol. III, p. 74), although at a later point, starting in 1974, his record was certainly questionable from the standpoint of absenteeism and he was even absent without leave on an occasion, although he said this was due to a sudden illness in his family (Evidence, Vol. IV, pp. 99, 100; Exhibit No. 10). While the demotion of Mr. Pabla is not in itself in issue in this hearing it was asserted as being due to discrimination and therefore, a similar fact to consider in respect to Mr. Dhillon's complaint.
70However, in my view there was not enough evidence to suggest that Mr. Pabla was demoted because he was an East Indian. A critical fact to note is that the general manager who promoted Mr. Pabla was the one who subsequently demoted him. Rather, the decision to demote appears to have been done for vague, whimsical reasons, almost on what might be said to be a "gut feeling" basis by management (seen somewhat generally from the evidence in this Inquiry as typifying its relations with its employees), without any real evaluation of the worker's performance, and without any meaningful communication with either him or his immediate supervisor as to his job performance. Hence, the demotion was an unfair decision, at least in terms of a lack of fair and meaningful process, but on the evidence in this Inquiry, was not, I find, an act of discrimination upon a ground prohibited by the Code. As for a reason why there has not been a promotion of Mr. Pabla in the intervening years subsequent to Mr. Pabla's demotion, I do not find any evidence to suggest he is being discriminated against in this regard on a prohibitory ground (See in part Exhibits No. 19 and No. 20 and the evidence in respect thereof).
(5) The dismissal from employment issue with respect to the Complainant
71With respect to Mr. Dhillon's dismissal, on all the evidence I find that it was, in my opinion, clearly unfair to Mr. Dhillon and unjustifiable in the circumstances. Mr. Dhillon was not given a chance to explain what happened, he was, at least, an average worker who had been an employee for some time, and while he was insubordinate to his foreman in swearing at him (and I have no doubt in accepting Mr. Day's evidence on this point, and rejecting Mr. Dhillon's denial that he swore) the penalty of dismissal was far out of line with Mr. Dhillon's offence. Moreover, any real investigation by Mr. Rosano of the situation before peremptorily dismissing Mr. Dhillon, would have made him realize that Mr. Dhillon had met his quota for production and thus had a reasonable answer to Mr. Day's legitimate enquiry of him, and that the only problem was that Mr. Dhillon had shown volatile anger and swore at Mr. Day. Any enquiry and sensitivity toward the situation would have resulted in the realization that Mr. Dhillon, while clearly wrong in the manner of his response to Mr. Day, was very much uptight because of the general work environment due to his perception of racial harassment in the workplace, as evidenced by the undisputed evidence of Mr. Day himself that Mr. Dhillon felt that in the particular situation he was being discriminated against by Mr. Day. Mr. Day in fact, and I so find on the evidence, was certainly not discriminating against Mr. Dhillon. However, the general work environment of racial name-calling and related racial abuse, was at least one significant factor in Mr. Dhillon's psychological volatility. That is, the name-calling environment was a factor without which (a causa sine qua non) Mr. Dhillon would not have precipitated his own dismissal.
72However, Mr. Dhillon was the active cause (the causa causans) of his own dismissal, and unfairly as he was treated by Mr. Petre and Mr. Rosano, neither had the intent of dismissing him because he was an East Indian. Rather, Mr. Petre, unfortunately, had no expressed opinion of his own, but was simply a messenger to Mr. Rosano. Mr. Rosano is a strong and forceful general manager who wants to run a strictly disciplined warehouse with respect to the hierarchical structure. That is, he was using Mr. Dhillon as an example to the warehouse that he was not going to tolerate any insubordination with respect to a superior foreman or supervisor, and even though Mr. Dhillon was the first employee dismissed for swearing at a supervisor in some fifteen years (Evidence, Vol. V, pp. 154, 155). While Mr. Rosano acted too quickly, was unfair, and went against the company's own written guidelines as I interpret them, he acted, as I find, not because the hapless and unfortunate employee was an East Indian, but rather simply because Mr. Rosano wanted to show his employees he was simply not going to tolerate any form of insubordination of a foreman or supervisor. Moreover, Mr. Rosano honestly held the view that he was acting properly and within the company's written guidelines as he interpreted them. His preemptory, unfair decision in dealing with an employee was not unlike the general manner in which the employees (such as Mr. Pabla in the way in which the decision took place that he be demoted as foreman) were apparently dealt with by management, considering all the evidence in this Inquiry. The overall impression from the evidence was that this warehouse was managed with little regard for employee interests beyond that simply of the immediate maximization of production. The existence of a responsible union and a typical collective bargaining agreement would have ameliorated the terms of employment (promotion and dismissal, and grievance procedures and penalties) considerably.
73However, I think the evidence in this Inquiry typified the labour relations style of Respondent's management generally and the offended, dismissed employee could just as easily have been a white employee rather than Mr. Dhillon (or Mr. Pabla with respect to his demotion). Moreover, an employee such as Mr. Dhillon must control his anger in respect of his work environment, and his swearing (see Exhibit No. 5) and insubordination is not excused because of the hostility he receives within his work environment. Mr. Dhillon must hold himself ultimately accountable for his intemperate outbursts and bear the very unfortunate consequences that follow from his loss of control.
(6) The issue of racial slurs and racial name-calling, or verbal racial harassment, with respect to both the Complainant and with respect to the Respondent's warehouse generally
74With respect to the racial name-calling, I find, considering all the evidence, that it was widespread within the warehouse, and on a continuing basis. That is, we are not talking simply about occasional, isolated incidents. Undoubtedly, the ambience of a warehouse in Toronto, bringing together many men of very diverse backgrounds doing physical labour, is not going to be the equivalent of a Sunday School picnic. It will be common to have profanity or "rough talk" as one might call it, as an ordinary part of the conversation, and whatever one's views as to the niceties of such an environment, one cannot ignore reality.
75I am sure that the Respondent's warehouse was not exceptional in this regard, but rather is typical. However, the "rough talk" in the Respondent's warehouse contained racial epithets and insults, that is, verbal harassment of a racial nature and on a regular basis. Occasionally this verbal harassment was coupled with mild physical harassment (for example, the ruffling of hair incidents in respect of Malkit Singh Pabla). Whether the truck-pushing incident involving Mr. Dhillon was truly intentional or not, the actions of those who bumped him after the fact (laughing at him and not apologizing, or not seeming to be sincere in apologizing, for the accident) together with the general warehouse climate left Mr. Dhillon with the not unreasonable inference that he was being abused in that incident because he was an East Indian.
76The overall impression given by the evidence on the preponderance of evidence is that the warehouse was not just a "rough" place in which to work, with demanding physical labour for men at the lower end of society's income scale, coupled with swearing and rough language, but that the internal "pecking-order" within the warehouse placed the East Indian workers at the bottom of the informal, internal status for warehouseman. They were the butt of many of their co-workers aggressiveness and hostility, because of their race. I do not want to generalize — undoubtedly the majority of the white workers were friendly, or at least tolerant, toward the East Indians. However, there was a solid number, if an overall relatively small minority, of white workers who would insult the East Indian workers on a racial basis. No doubt, the word "wop" was heard as often as "Paki" within the warehouse (Evidence, Vol. III, p. 100). However, the fact of racial insults toward one group does not justify racial insults toward another. As well, the fact that other groups, as new Canadians, experienced racial prejudice historically with legal impunity to those who discriminated, and the receivers of the insults simply had to tough it out, does not excuse racial discrimination now prohibited by the Code in the contemporary work environment.
77In my view, there was no intent on the part of management, in particular, senior management (represented by Mr. Petre and Mr. Rosano) of the Respondent, to discriminate against the East Indian workers. Mr. Petre was responsible for hiring the workers who appeared as witnesses, and I accept the evidence of Mr. Petre and Mr. Rosano that they personally had no intent at all to discriminate with respect to either Mr. Dhillon, the Complainant, or East Indian workers generally within the warehouse. Nor did they actively condone verbal or other racial harassment by the white workers who engaged in same, and certainly they did not engage in it themselves.
78However, Mr. Petre and Mr. Rosano both knew, or should as reasonable men acting as management have known, that there was regular, and significant, verbal racial harassment of East Indians within the warehouse. They did know. However, while they certainly did not either approve of, or support the practice, they as management did not take reasonable steps to put an end, or at least minimize, the racial abuse. There was no real, effective, discipline with respect to the instances of offending white employees that came to their attention from time to time. The overall attitude was that verbal racial abuse was an inherent, if unsatisfactory, incident of the warehouse work environment. No attempt was made to set up effective lines of communication with the East Indians as a minority group within the warehouse, or to bring a real harmony to the groups feuding on racial lines, and to make the environment more palatable (and incidentally by doing so, more productive). The unofficial East Indian leader within the warehouse, Malkit Singh Pabla, is an honest, reasonable, conscientious worker. I found him to be the most impressive, in terms of the evidence he gave, of all the witnesses before the Inquiry. I accept his evidence unreservedly in that, unlike all the other witnesses, there was no aspect of self-serving rationalization. There was a general racial problem within the warehouse, Malkit Singh Pabla advised management there was and he could and should have been utilized to search for better understanding and cooperation. Instead, he personally was much abused by one white individual (and because he was seen as a defenceless East Indian) with no real discipline directed against the offending individual.
79Verbal racial harassment, through name-calling, in itself, is in my view prohibited conduct under the Code. The atmosphere of the workplace is a "term or condition of employment" just as much as more visible terms of conditions, such as hours of work or rate of pay. The words "term or condition of employment" are broad enough to include the emotional and psychological circumstances in the workplace. There is a duty on an employer to take reasonable steps to eradicate this form of discrimination, and if the employer does not, he is liable under the Code. I find on the evidence that the Respondent (its management knowing of the racial name-calling problem) did not take reasonable steps to eradicate such form of discrimination toward the East Indian employees.
80I might add that the evidence suggested a great deal of swearing, and even some retaliatory name-calling, by some East Indian employees. There cannot be any justifiable excuse for this. Two wrongs not only do not make a right, but also usually exacerbate the initial unfortunate situation. Racial harmony is a two-way street and requires the good sense and understanding of everyone concerned. All employees must cooperate. In a warehouse such as that of the Respondent, it also requires management to take reasonable steps by way of active intervention, to ensure that there is not racial discrimination toward any person or group.
4. The Law — Racial Name-Calling and Verbal Racial Harassment as Discrimination
81The Ontario Human Rights Code, Revised Statutes of Ontario, 1970, Chapter 318, as amended, provides:
4(1) No person shall,
(g) discriminate against any employee with regard to any term or condition of employment,
because of race ... of such person or employee.
82This clause expressly prohibits the imposition of more, or less, onerous duties of employment on employees according to their race. Likewise, it explicitly prohibits the differential distribution of the rewards of employment to employees according to their race. In my view, paragraph 4(1)(g) should also be interpreted as a prohibition against unwelcomed racist remarks made by employers or other employees, the words "term or condition of employment" being broad enough to include the emotional and psychological circumstances in the workplace. An employee may be found to have been discriminated against even though that discrimination did not take a visible form in the employee's hours of work, duties, advancement, or pay cheque.
83This question was touched upon in a recent Ontario case: Cherie Bell v. Ernest Ladas (Aug. 12, 1980) 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155. That case dealt with the issue of whether or not s. 4(1)(g) of the Code could be read as a prohibition against sexual harassment in the workplace. The Board of Inquiry (Mr. O.B. Shime, Q.C.) found that sexual harassment was indeed prohibited, discriminatory conduct in the workplace. In so finding, the Board stated:
The forms of prohibited conduct that, in my view are discriminatory run the gamut from overt gender based activity, such as coerced intercourse to unsolicited physical contact to persistent propositions to more subtle conduct such as gender based insults and taunting, which may reasonably be perceived to create a negative psychological and emotional work environment. There is no reason why the law, which reaches into the workplace so as to protect the work environment from physical or chemical pollution or extremes of temperature, ought not to protect employees as well from negative psychological and mental effects where adverse and gender directed conduct emanating from a management hierarchy may reasonably be construed to be a condition of employment.
84Thus, in deciding that the Code could be interpreted as providing a prohibition against sexual harassment, the Board also stated that that form of discrimination may be manifested merely in a verbal way; there needn't have been any tangible employment consequences for the sanctions of the Code to apply.
85By analogy, it can be argued that the same ought to be true where employees are subjected to racial slurs. If the Code prohibits "gender based insults and taunting", then it should equally prohibit verbal abuse based upon a person's race, even where the specific terms of employment are not observably affected.
86In Sylvia Fuller v. Candur Plastics Ltd. (Robert Kerr, May 26, 1981 1981 CanLII 4318 (ON HRT), 2 C.H.R.R. D/419) the issue arose in a fact situation not unlike that in this hearing. There, the complainant, a Black woman of Jamaican origin, was dismissed after slapping her shift foreman. The entire incident was the result of the following sequence of events: A co-worker of the complainant had apparently called the complainant a "monkey" and had slapped her on the face. The complainant went to the foreman to complain about the incident. She had some difficulty explaining the event to the foreman because of a language barrier, and so demonstrated it to him by slapping him on the face. The complainant was subsequently dismissed.
87The Board found that the decision to dismiss the complainant was based partly on the complainant's race, colour and place of origin and therefore, a breach of section 4(1)(b) of the Code had indeed occurred.
88With respect to the verbal remark made to the complainant, the Board stated that it was merely "an isolated offensive outburst" and therefore, in itself, was not a ground for a complaint under the Code. In making that ruling, the Board relied on the much earlier decision in the case of Simms v. Ford of Canada (Professor, now Mr. Justice Kreever, June 4, 1970).
89In the Simms case, a black employee in the respondent's plant was performing his duties in a less than satisfactory way. When approached by the shift foreman about his performance, the complainant initiated an argument in the course of which the foreman called the complainant "nigger". The complainant subsequently received a suspension.
90The Board found that the suspension was motivated by the complainant's insubordinate conduct, and not by any racial discrimination. The Board went on to consider whether a remark such as was made to the complainant could be grounds for a complaint in itself:
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. Thus, to permit, even passively, a black employee in a plant where the majority of employees are white to be humiliated repeatedly by insulting language relating to his colour by other employees, even, I would go so far as to say, by non-supervisory employees, would be to require the black employee to work under unfavourable conditions which do not apply to white employees. In such circumstances, the employer has an obligation, imposed by s. 4(1), to remove the cause of the discriminatory working conditions and police the prohibition against the humiliating conduct or language (p. 18).
91Thus, it is clear from the Simms case, that verbal abuse in itself can constitute a breach of the Code. The Board held though, that since the remark there was isolated, in the context of an argument and precipitated by the Complainant's insubordinate behaviour, no breach of s. 4(1) had occurred.
92Mr. O.B. Shime suggested in the Cherie Bell case that the Code could reach into the environment of the workplace to redress discriminatory behaviour. This is, in fact, how the courts in the United States have proceeded in interpreting the Civil Rights Act of 1964, as amended by the Equal Employment Opportunities Act of 1972 42 U.S.C. ss. 2000e et seq.
93Subsection 2(a) of the latter Act provides:
2(a) Employers. It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... race ...
94As in Canada, the matter of verbal abuse as discriminatory conduct has arisen in sexual harassment cases. The most recent reported case on the issue is Bundy v. Delbert Jackson 641 F.2d 934 (1981). There, the Court held that a complainant needn't show that any employment benefits were denied to her because of her unwillingness to comply with the sexual demands of an employer. Rather, it need only be shown that the working environment has been "poisoned" by unwelcomed sexual harassment. The Court was extending the principle laid down in previous cases that a complainant must show that lack of sexual compliance on her part resulted in some kind of adverse employment consequences: Munford v. James T. Barnes & Co. 441 F. supp. 459 (1977).
95In arriving at the result in the Bundy case, the Court in fact relied on cases where an employee had been subjected to ethnic or racial slurs in the workplace:
Racial slurs, though intentional and directed at individuals, may still be just verbal insults, yet they too may create Title VII liability (p. 945).
96A leading case on that issue is Rogers v. Equal Employment Opportunity Commission 454 F.2d 234 (1971), cert. denied, 406 U.S. 957 (1972). In that case, the complainant was a Hispanic woman employed in an optometrist's office. Her employer had engaged in a practice of segregating patients by national origin and treating Hispanic patients in a discriminatory way. The complainant alleged that the poor treatment of Hispanic patients created an offensive work environment for her, and that she was entitled to have her complaint redressed. The issue before the Court was whether the complainant herself had really been "aggrieved" such that the Equal Employment Opportunities Commission could even investigate the matter. The Court ruled that even though the complainant had not been subjected to discriminatory remarks herself, the remarks directed at Hispanic patients created an adverse work environment that the Act prohibited.
97Goldberg, C.J. stated:
Time was when employment discrimination tended to be viewed as a series of isolated and distinguishable events, manifesting itself, for example, in an employer's practices of hiring, firing, and promoting. But today employment discrimination is a far more complex and pervasive phenomenon, as the nuances and subtleties of discriminatory employment practices are no longer confined to bread and butter issues (454 F.2d at 238).
98Thus, not only could verbal abuse give rise to a complaint under the Equal Employment Opportunities Act, but the complainant needn't be the person at whom the remarks were directed. The Court in Rogers gave a very wide meaning of "terms, conditions or privileges of employment" in s. 2(a)(1) of the Act. That phrase was held to include the psychological and emotional aspect of the work environment:
T(he) phrase "terms, conditions or privileges of employment" ... is an expansive concept which sweeps within its protective ambit the practice of creating a work environment heavily charged with ethnic or racial discrimination ... one can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers ... (p. 238).
99Obviously, the Court in Rogers was dealing with a situation where racial slurs were extremely pervasive in the workplace. The case of Cariddi v. Kansas City Chiefs Football Club, Inc. 569, F.2d 87 (1977), dealt with a situation where merely isolated discriminatory remarks were made to an employee.
100Mr. Cariddi was employed as a supervisor of ticket takers at the respondent's football stadium. His supervisor apparently called him "dago" or "Mafia" on occasion, but not to the extent that a pattern of abuse existed. The complainant was eventually fired for cause. He then brought an action under Title VII of the Civil Rights Act claiming that the derogatory remarks had spoiled his work environment within the principle laid down in the Rogers case.
101The Court held that the remarks were made casually and not in a widespread manner. The degree of "pollution" of the workplace did not satisfy the quantum that had been present in the Rogers case. Also, the Court placed some weight on the surrounding circumstances. That is, that the complainant had been dismissed for cause and that the respondent hired many Italian-Americans and therefore wasn't really prejudiced against them. Strictly speaking though, those facts ought to have been irrelevant to the issue of whether or not the employer had acted in a discriminatory fashion during the course of Mr. Cariddi's employment.
102In Gray v. Greyhound Lines East 545 F.2d 169 (1976), a group of black employees alleged that the respondent's treatment of them was discriminatory. Prior to 1965, the respondent had refused to hire blacks as bus drivers. The complainants argued that the respondent's present seniority system perpetuated that previous policy by keeping blacks in junior positions. Further, they argued that even though the employer had begun to hire blacks, those that were hired were treated poorly. Black employees, it was alleged, were subjected to "arbitrary discipline", "discriminatory treatment" and "psychological isolation". In other words, the employees felt that their employment climate was interfered with because they were black, notwithstanding the respondent's present hiring practices.
103The Court held that the employees had a right, pursuant to the Equal Employment Opportunities Act, to a working environment free from racial intimidation. As such, they had standing to bring a class action against the employer on behalf of all of its black employees.
104That principle was extended even further in the case of Waters v. Heublein, Inc. 547 F.2d 466 (1977). There, it was held that a white employee had standing to bring an action against her employer on the grounds that the respondent verbally abused its black employees. The Court stated that the complainant had a statutory right to a work environment free of racial prejudice, even though she was not discriminated against herself.
105The right of all employees to have a workplace free of the emotional and psychological manifestations of racial prejudice has also been upheld in the United States by the Equal Employment Opportunities Commission. It is clear in its decisions that white employees, for example, have standing to initiate actions against employers for their verbal abuse of black employees: EEOC Decision No. 70-09, CCH EEOC Decisions P6026.
106Further, the EEOC has imposed a positive duty upon the employer to rid the workplace of racial slurs exchanged between its employees. Thus, where employers acquiesce in the discriminatory remarks made by white employees against fellow black workers, the Commission has found the employer to be liable: EEOC Decision No. 71-969, CCH EEOC Decision P6193. The employer has a duty to keep the work environment free of racial insults and must take reasonable steps to stop them. If an employer acquiesces in racist statements made by an employee, the employer will be liable to the aggrieved employee: EEOC Decision No. 72-0779, CCH EEOC Decisions P6321.
107In summary then, the United States' position with respect to verbal discrimination has been to recognize it as prohibited conduct under the Equal Employment Opportunities Act. The cases emphasize that the atmosphere of the workplace is a "term, condition or privilege of employment" just as much as is hours of work or rate of pay. There is a duty on employers to take reasonable steps to eradicate this form of discrimination and if they do not, they will be liable under the Act. That reasoning has been applied to sexual harassment cases where the working environment of women may be spoiled by the unwelcome sexual solicitations of employers.
108In Canada, the issue as to whether racial slurs constitute a breach of the Code has been discussed both in the context of race discrimination cases (Fuller; Simms), and a sexual harassment case (Cherie Bell). Thus, the situation in Canada is similar to that in the United States. However, the Canadian race discrimination cases have not had present the quantum of verbal abuse in the workplace that has been determined to be necessary before the prohibitions of Human Rights legislation may be invoked. The Fuller and Simms cases are similar in that respect to Cariddi in the United States. Thus, to date there appear to be no Canadian cases where bigoted remarks alone in the employment environment have been redressed by actions under Human Rights statutes.
109The abundance of cases in the United States has led to a certain sophistication in dealing with the more subtle areas of human rights law. In Canada, the relatively small volume of jurisprudence has dealt with the more critical "bread and butter" human rights issues. However, it is useful to consider the experience in the United States, prior to considering the interpretation of our Code. The redressing of an insidious form of discrimination certainly invites consideration of the United States' jurisprudence in this area.
110It can also be mentioned that in the amended Ontario Human Rights Code (Bill 7, Royal Assent December 11, 1981, not yet proclaimed in force), there is a specific provision dealing with "harassment" of employees in the workplace:
4(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record lot offences, marital status, family status of handicap.
"Harassment" is defined in s. 9(f).
9(f) "harassment" means engaging in a, course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;
111This provision is very explicit, and there can be no doubt that under this provision (once Bill 7 is proclaimed and has the force of law) employees have a right to a workplace free from "harassment", and that harassment includes verbal abuse based on prohibited grounds.
112As I have said, verbal racial harassment. through name-calling, in itself, is in my view prohibited conduct under the Code. The atmosphere of the workplace is a "term or condition of employment" just as much as more visible terms or conditions, such as hours of work or rate of pay. The words "term or condition of employment" are broad enough to include the emotional and psychological circumstances in the workplace. There is a duty on an employer to take reasonable steps to eradicate this form of discrimination, and if the employer does not, he is liable under the Code. I find on the evidence that the Respondent (its management knowing of the racial name-calling problem) did not take reasonable steps to eradicate such form of discrimination toward the East Indian employees, and specifically, toward the Complainant.
Remedy
113The matter of fashioning an effective remedy to deal with the problem of verbal racial harassment in the Respondent's warehouse, is not an easy one. In so far as the Complainant, Mr. Dhillon, is concerned, there was a breach of a. 4(1)(g) of the Code, in that he was discriminated against with regard to a "condition" of his employment, in that he suffered a continuing derogatory verbal harassment simply because of his race, colour, ancestry, or place of origin. He was treated in, a reprehensible fashion, as were the other East Indian workers, in terms of the everyday work environment they endured due to the racial name-calling. While Mr. Dhillon is not at all justified in the anger and profanity he expressed to Mr. Day, his temperament was at least in part due to the stress he suffered from the nature of his work environment which belittled his race, colour, ancestry and place of origin. Ultimately his hostility to this environment was the cause of his dismissal. He is entitled to general damages for his pain and suffering and injured feelings due to discrimination in the "condition" of his employment.
114The Inquiry and hearing in itself appeared to constitute a general catharsis with respect to the name-calling in the Respondent's warehouse (Evidence, Vol. VI, pp. 177, 178, 180).
115The Code provides:
14c. 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 therefor.
116The problem of racial name-calling and racial slurs in a warehouse such as that of the Respondent is mainly rectified through an educative process initiated by management. The situation before this Inquiry is probably not uncommon in factories or warehouses in urban southern Ontario with a similar racially mixed work force. The situation is novel in terms of being the subject of an Inquiry. I believe management of the Respondent will make a sincere effort, given my decision, to rectify the unfortunate situation in the warehouse and obliterate verbal racial harassment. It is in the best interests of responsible management and the labour force to work together to achieve this. Already, there is evidence that the simple fact of the hearing has improved matters greatly. Accordingly, I think it appropriate, given my discretion within the Code, to retain jurisdiction for a period of time following the decision, to give management, all the employees, together with the Ontario Human Rights Commission as both a catalyst and monitor, the opportunity of redressing the situation and removing verbal racial harassment in the Respondent's warehouse. If the Ontario Human Rights Commission is of the view at any point in time that the Respondent is not taking reasonable steps to comply, or on the other hand the Respondent is of the belief that the Ontario Human Rights Commission is being unreasonable in its requests of the Respondent, then the party in question, with notice to the other, may request of me a continuation of the Inquiry for the purpose of me making whatever order, after representations by both sides to me as a tribunal in the usual fashion, that I see fit to achieve compliance with this decision.
ORDER
The Respondent, F.W. Woolworth Company Limited, shall pay to the Complainant, Sucha Singh Dhillon, the sum of one thousand ($1,000.00) dollars as general damages.
The Respondent shall take all reasonable steps necessary to achieve the cessation and desisting forthwith of verbal racial harassment within the Respondent's warehouse at 2277 Sheppard Avenue, West, in Toronto.
The Respondent shall forthwith constitute an ad hoc Management-Employees Race Relations Committee (hereafter called "the Committee") for its warehouse, consisting of an equal number of three groups: a management group, an East Indian employees group, and a non-East Indian employees group, and the said Committee, together with an ex officio member of the Committee appointed by the Ontario Human Rights Commission from its staff (which member of the Committee is hereafter called the "Commission representative") shall meet together on company time at least once a month for the next four months, or more often if and when requested by the Commission representative, with the Committee's objectives being, first, to establish effective communications on the general issue of inter-race relations within the warehouse, and second, to suggest to the management of the Respondent such reasonable measures as seem appropriate and necessary from time to time to remove verbal racial harassment from within the Respondent's warehouse, and the Respondent shall implement such reasonable measures as are recommended by the Committee and are feasible from a practical standpoint from time to time.
In the event that, in the opinion of the Commission representative the Committee is not functioning in a manner and making such appropriate recommendations as meet the intent of this Order of removing verbal racial harassment within the Respondent's warehouse, and/or the Respondent is not implementing reasonable measures necessary to achieve the intent of this Order, being the removal of verbal racial harassment within the Respondent's warehouse, the Ontario Human Rights Commission may, upon giving written notice to the Respondent, request of this Board of Inquiry that it reconvene to hear such further representations as the Ontario Human Rights Commission considers necessary and the Board of Inquiry deems appropriate.
In the event that the Respondent is unwilling or, in its opinion, unable to implement the reasonable measures contemplated by this Order to meet the intent of this Order, being the removal of verbal racial harassment within the Respondent's warehouse, the Respondent may, upon giving written notice to the Ontario Human Rights Commission, request of this Board of Inquiry that it reconvene to hear such further representations as the Respondent considers necessary and the Board of Inquiry deems appropriate.
The Committee constituted by s. 3 of this Order shall function as set forth for not less than four months from the date of this decision, and this Board of Inquiry shall remain seized of jurisdiction for six months from the date of this decision to reconvene the Inquiry as contemplated in ss. 4 and/or 5 of this Order, and on such reconvened Inquiry, make any such further Order it sees fit, within its powers, in respect of the subject matter of this Inquiry, to implement this decision and, in particular, s. 2 of this Order.