Ahmed v. Canada Packers Inc.

1994-03-07

Ontario Board of Inquiry

ONTARIO HUMAN RIGHTS CODE R.S.O. 1990, c. H.19

Complainant

and

Commission

and

Respondent

and

Respondent

DECISION _____________________________________

Professor Vern Krishna, Q.C.

Naomi Overend, Daniel J. McKeown

Counsel for the Commission Counsel for the Respondent

1By letter dated March 2, 1993, I was appointed to form a Board of Inquiry pursuant to the Human Rights Code [R.S.O. 1990, c. H. 19] (the "Code") in the matter of Awadh Ahmed (the "complainant"), complaint dated September 22, 1989.

2The complainant alleges discrimination in employment on the basis of race, ancestry, place of origin and harassment by Canada Packers Inc. (the "corporate respondent") and Mr. Dan Cloutier (the "individual respondent").

3The complainant, Mr. Ahmed, was employed as a meat cutter by the corporate respondent, Canada Packers, Inc., from December 1988 to March 10, 1989, a period of approximately two and one-half months. As a result of certain incidents (described hereunder) which occurred on March 9, 1989, the complainant's employment was terminated and the complaint which is the subject of this inquiry was filed with the Ontario Human Rights Commission ("OHRC") on September 22, 1989.

II. SUMMARY OF COMPLAINT

4The complainant alleged in his complaint (Exhibit 1, tab 1) that he was performing his duties as a meat cutter on March 9, 1989, at the corporate respondent's premises when he greeted a fellow worker with an allegedly South African salute and said: "Nelson Mandela." The comment was apparently made in jest to one of the complainant's co-workers.

5A federal meat inspector, Mr. Evan Stancombe, who was in the vicinity of the area where the complainant was working, witnessed the salute and accompanying comment and is alleged to have said: "Fuck you and your Black power." This incident (which I shall refer to as the "first incident") was brought to the attention of the corporate respondent's foreman, Mr. Harry Myrie, and the incident was later recorded in a statement (Exhibit, tab 7) signed by the complainant and Mr. Myrie.

6The complainant also alleges that on the afternoon of March 9, 1989, Mr. Stancombe approached him with a piece of fat in his hand and made as if he was going to throw it at him. Mr. Stancombe threw the piece of fat in the garbage can, and looking at the complainant, is alleged to have said: "Fuck you Blacks!" This incident (which I shall refer to as the "second incident") led to an exchange of heated language between the parties and was also reported to the corporate respondent.

7Mr. Dan Cloutier, the individual respondent, and other supervisory employees of the corporate respondent, investigated the two incidents and prepared a report thereon. Following the investigation, the corporate respondent terminated the complainant's employment on March 10, 1989, and he was escorted from his employer's premises.

8The complainant, originally from Kenya, complains that his right to equal treatment with respect to employment without discrimination because of race, colour, ancestry, and place of origin was infringed by the two respondents, contrary to the provisions of the Code. The OHRC alleges that the corporate respondent condoned a racially poisoned environment and wrongfully terminated the complainant's employment instead of dealing with the problem caused by the federal meat inspector's remarks and actions. Thus, the OHRC alleges that race was implicitly a factor in the decision to terminate the complainant's employment.

III. BACKGROUND OF COMPLAINANT

9The complainant was born in Kenya on November 20, 1954, and raised in Mobasa. He had very limited formal education in his childhood and started working in his father's butchering business when he was approximately 5 or 6 years of age. His father had a slaughterhouse and the complainant helped him with various jobs in the butchering business.

10Later on, the complainant also worked in a tour business which his father acquired.

11Kenya was a colony of Britain until 1963. As such, there were British soldiers in Kenya until at least 1963, after which time they were phased out of the armed forces. Thus, the complainant was exposed to British colonial forces at an early age. He witnessed various racial incidents during the course of his childhood and youth and some of these incidents involving the British colonial forces were not at all pleasant. As a result of his exposure to unpleasant racial incidents with the British colonial forces, he was cautious about his relationships with white persons, both in Kenya and later when he emigrated to Canada.

12He met his wife, Sandra, a Canadian citizen, on her visit to Kenya. Following his marriage to Sandra, she applied for the complainant's entry into Canada as a landed immigrant. The complainant landed in Canada some time around June 1987. His facility in the English language was limited at that time and remains so to this day.

13The complainant and his wife lived in Hamilton. He sought work as a general labourer and for some time worked on a mushroom farm. He attempted to improve himself by taking various part-time educational programs and generally attempted to make a new life in Canada. Ultimately, in response to an advertisement placed by the corporate respondent in a newspaper, the complainant sought, and was granted, employment with Canada Packers Inc. at their Burlington plant as a general labourer on their "kill floor."

IV. THE WORK ENVIRONMENT

14The working environment on the kill floor of a meat plant can best be described as bloody. The corporate respondent employed a multi-racial labour force, most of whom appear to have operated as general labourers on the kill floor.

15The complainant gave extensive testimony as to the nature of operations on the kill floor and the location of each segment of the assembly line operation. Generally speaking, the operations on the kill floor involved killing cows, draining their blood, cutting off their feet, and cutting out the various parts of the cow in an assembly line operation. Similar operations were performed in the afternoon shift when they killed pigs. The blood and guts (and whatever else) from the carcasses would fall down onto the kill floor.

16The evidence as to the number of people employed on the kill floor was somewhat uncertain. It appears, however, that there were at least fifty to sixty people employed at any particular time. Given the nature of the operations on the kill floor, various employees, including the complainant, were required to handle sharp knives, which they used to cut off various body parts from the cow as it went around on the assembly line.

17The complainant worked with a knife which he testified he had to keep very sharp at all times. The knife had to sharp enough to severe body parts in a methodical and timely manner as the hanging cow went around on the assembly line. The complainant performed his tasks well because he had been trained as a young boy to use the knife in his father's slaughterhouse in Kenya.

18The complainant's work performance was reviewed after his first month of employment as part of his general probationary review. His employees confirmed in the review (Exhibit 2, tab M) that he had a satisfactory work record and a "very good" relationship with his foreman and fellow employees. The complainant was reviewed again on February 20, 1989, after he had been at his employment for two months. Again, he received a satisfactory review on all counts and a recommendation was made that he should be retained as a permanent employee upon the completion of his probationary period of three months.

19The Burlington Plant had a collective agreement (Exhibit 10) for the period September 4, 1987, to April 30, 1989. Article 3.7 of the collective agreement reads as follows:

"The Company and Union agree not to discriminate against any employee because of race, colour, creed or sex."

20As a probationary employee, the complainant was hired at a wage rate equal to 80 percent of the Group One rate of $12.05 per hour. This was the rate applicable to "General Labour," which was a broad category that applied to all persons who were not otherwise listed in the more specialised groupings. It was the starting point for new employees.

21The corporate respondent also had an "employment equity policy" (Exhibit 12). Mr. Cloutier, the manager of Human Resources, would give employees a copy of the policy and explain to them that it addressed women, visible minorities, native persons and the handicapped. Employees were also asked to fill in an employee census form. The Burlington beef plant recruited visible minorities as part of their hiring policy and took advantage of any "opportunity to hire somebody into any position in the plant who would be in any of those four designated groups ..." (Vol. 4, p. 47). Employees had the option of self-identifying themselves if they wished to do so. The program of self-identification was entirely voluntary. The evidence as to the number of "visible minorities" as a percentage of the total plant population was somewhat vague. It appears, however, that approximately 60 employees self-identified themselves as being "visible minorities" out of a total plant population of approximately 184 employees. These numbers may have been slightly different as of the date of the two incidents that form the subject of this particular complaint. They are, however, reasonably approximate and indicate that the plant employed a multiracial community, at least at the general labourer level.

22The complainant testified (Vol. 1, p. 84) that he had a good working relationship with his foreman and his fellow employees. There was no particular atmosphere of racial tension on the kill floor prior to the two incidents that formed the subject matter of this complaint. Similarly, the complainant's relationship with the federal meat inspector was one of distant respect between an employee and a person in a position of authority.

23The meat inspectors were employees of the federal government (Agriculture Canada) and their presence at the corporate respondent's premises was required by law. The plant was a federally regulated plant and the meat inspectors were there to inspect the hygiene of the facility and animals. The meat inspectors were subject to the supervision of the vet in charge.

24The complainant did not have regular or extensive dealings with Mr. Stancombe. The complainant testified that he called Mr. Stancombe "Sir" but that Mr. Stancombe preferred to be called "General Max." He also testified that his understanding of "General Max" was that he was "... a bad guy in South Africa" who used to be head of the police and, apparently, the cause of the death of Steve Biko (Vol. 1, p. 96). According to the complainant, this "General Max" character had a reputation in South Africa as a "dangerous guy." He responded to Mr. Stancombe's request by laughing it off and smiling at him. The corporate and individual respondents were not in any way aware of, or involved in, these conversations.

25The corporate respondent shut down and closed its plant in Burlington in May 1990.

V. THE FIRST INCIDENT

26The complainant's testimony in respect of the two incidents which are the subject of this hearing was at times quite vague and at other times remarkably lucid. I attribute part of his vagueness to difficulties he may have had with the English language and the tension associated with examination and cross-examination. On the other hand, however, even allowing for language problems, there were aspects of his personal life and events associated with the incidents about which he was remarkably vague.

27The first incident occurred on the morning of March 9, 1989, while the complainant was working at the tongue trimming station. He testified that one of his co-workers (a person name "Joe," though he was uncertain about this) passed by and he smiled at him. The co-worker stopped to talk with Mr. Stancombe, the federal meat inspector, and they both looked at the complainant and laughed. The complainant laughed in return. When Joe passed by again on his way back, the complainant made a South African type of salute and said "Amanda, Nelson Mandela" (Vol. 1, p. 106). The complainant also testified that when Mr. Stancombe saw him perform the salute he responded with the phrase "Fuck you and your Black race" or words to that effect. Although there was some confusion as to the exact words used, I am satisfied that Mr. Stancombe said approximately what the complainant alleged he said, namely, "Fuck you with your Black race" or words with a similar meaning. This was clearly an obscene and racially offensive comment and, quite understandably, upset the complainant.

28The complainant reported the incident to his general foreman, Mr. Harry Myrie, who took down the details of the incident in his office. The foreman took down the details as reported to him the complainant. The complainant signed the report of the incident (Exhibit 1, tab 7). The reported confirmed the nature of the racial slur, albeit in a slightly modified form: "Fuck you with you Black ..."

29The complainant was justifiably upset with the incident. Unfortunately, the complainant went on to issue threats and intimated that he might use his fists and knives to attack others. His statement of March 9, 1989, which he signed in the presence of his foreman states: "... I don't fight with the mouth I fight wit(sic) fist ..."

30After taking the statement, the foreman advised the complainant to go back to his work and to report anything that might happen directly to the foreman (Vol. 1, p. 116). There was some uncertainty in the testimony as to the exact nature of the language used by the complainant in his threatening comments. I have already referred to the complainant's signed statement. In addition, the Human Rights Commission introduced a document (Exhibit 1, tab 11), a signed statement by Dr. Beth Stephens of Agriculture Canada. The document (March 10, 1989) purports to be the report of the incident from the viewpoint of Mr. Stancombe, the meat inspector. The report identifies Mr. Stancombe's statement to the complainant: "Fuck your Black power" and also describes the reaction it elicited. The report alleges that the complainant said: "I will cut you up!"

31The incident was also reported to Mr. Dan Cloutier, a human resources official with the corporate respondent. Mr. Cloutier prepared a list of events which occurred in considering the options available to the corporate respondent in dealing with the complainant. This report (Exhibit 1, tab 12) also identifies the complainant's threatening comments to the inspect: "I don't fight with the mouth, I fight with fist." This report goes further, however, and reports a further statement which the complainant made: "I had to put the knives behind my back or I would have used them." This latter statement was made to Mr. Cloutier and to Harry Myrie, both of whom testified to that effect. I accept their testimony on this aspect of the incident.

VI. THE SECOND INCIDENT

32The second incident occurred on the afternoon of the same day at approximately 3 p.m. Details of the incident were reported to Mr. Dan Cloutier, the individual respondent, at approximately 3:15 p.m. on March 9, 1989. The record of the report was signed by both parties, Mr. Cloutier and the complainant.

33The complainant was trimming tongues at the head wash station when he happened to turn around and see Mr. Stancombe come around from behind the eviscerating table. Mr. Stancombe bent down to pick up a piece of fat or meat which he threw into a can located behind the complainant. Once again, there was an exchange of words between the complainant and Mr. Stancombe, the federal meat inspector. Apparently, the complainant asked Mr. Stancombe: "What are you doing?" to which Mr. Stancombe replied "Fuck-off." Mr. Stancombe then went to the kill floor office (located on one side of the kill floor) and the complainant followed him. Inside the office there was a small altercation. Mr. Stancombe apparently tried to use the telephone and had it to his ear when the complainant depressed the switch hook and cut him off. Mr. Stancombe left the office, the complainant followed him and was quite angry at this point. They met another supervisor (Steven Ghaney) who attempted to intercede in the dispute.

34Mr. Cloutier said, and I accept his testimony, that the complainant was very angry and "mad" when he made his statement. There were allegations of some shoving between the parties but there was considerable ambiguity about what occurred. I am satisfied on the basis of the testimony that there was a heated altercation between the complainant and Mr. Stancombe and that there were threats made. Where the testimony of the complainant and employees of the corporate respondent conflict as to the nature of the behaviour, I prefer the testimony of the respondents as supplemented by the signed statement.

VII. INVESTIGATIONS BY EMPLOYER

35Both incidents were reported to the corporate respondent and investigated by various of its employees. Statements were taken and signed from the foreman in respect of both incidents (Exhibit 1, tabs 8, 9 and 10). In addition, there was a report filed by Dr. Beth Stephens (Exhibit 1, tab 11) of Agriculture Canada. The entire incident was evaluated by the individual respondent in a written document (Exhibit 1, tab 12) in which he considers the various pros and cons of the incidents.

36It was the employer's practice to have the supervisor take notes of any investigation that resulted from an incident at the plant, to have the employee review the notes and then have him or her sign the record of the notes. Employees were not required to sign the record of notes, but could do so if they so chose.

37I accept the testimony of Mr. Dan Cloutier that he was concerned with the aggressive nature of the complainant's behaviour and comments. I am satisfied on the evidence that the complainant was visibly upset as a result of the incidents and that he made statements that were of an aggressive and threatening nature to the federal meat inspector. I am also satisfied that the respondents were legitimately concerned that the complainant, who was in the possession of sharp knives, was acting in a manner that was not conducive to a harmonious workplace environment.

38The corporate respondent received Agriculture Canada's statement on the two incidents on March 10, 1989.

VIII. MEDICAL EVIDENCE

39The OHRC put forward Dr. Granville de Costa as an expert medical witness. I accepted Dr. de Costa, a professor of psychiatry, affiliated with the University of Toronto as an expert witness on the psychological impact of racism, name calling and related areas. (Vol. 3, p. 89 and 96). Professor and Dr. de Costa was qualified as an expert witness in psychiatric medicine, with a special interest in race-related issues.

40Dr. de Costa testified at extensive length as to the psychological reaction to racial slurs and the feelings that the victim of such slurs might be expected to undergo. Based upon an interview of approximately three hours with the complainant, Dr. de Costa filed a report (Exhibit 15) in which he explained in medical terms the stress and post-traumatic reaction that the complainant felt as a result of his job loss. Dr. de Costa stated:

Mr. Ahmed's immediate psychological responses to the trauma of being fired was a mixture of emotions. They included anger, desire to undo the trauma, revengeful feelings, humiliation, despair, loneliness, blaming of others. Revengeful feelings for example, included thinking about the power and use of voodoo on the person who had offended him and by so doing destroy that person's life.

Dr. de Costa's testimony was substantially of an abstract nature given that his relationship with the complainant was very brief and was not of a doctor-patient relationship.

IX. FINDINGS AND ANALYSIS

41The corporate respondent had a fairly stringent policy in respect of its probationary employees. Probationary employees who did not comply with the company's rules, regulations and expectations were liable to be discharged much more easily than full-time permanent employees (Vol. 4, p. 42 and 76). This was the respondent's general labour practice and was not in any way related to the race or identity of its personnel.

42Disciplinary infractions included non-attendance at work without call in, showing up late for work, "horseplay," smoking in a restricted area, etc. The corporate respondent had previously dismissed probationary employees "... for something as insignificant as smoking in a restricted area ..." In the case of permanent (non-probationary) employees, the corporate respondent was required to proceed according to the terms of the collective agreement.

43It was important to the operations of the corporate respondent's [sic] that the assembly line continue uninterrupted. If the assembly line was halted for any reason, the employees simply stood around and waited and could not work. The assembly line processed approximately 800 cattle per day and each minutes that the line was shut down represented a loss of money to the business. The financial impact of assembly line shutdowns was an important consideration to the employer.

44The complainant's threats to fight caused the individual respondent considerable concern (Vol. 4, p. 89) as did the inappropriate comments by the meat inspector. The corporate respondent did not, however, have any direct jurisdiction over the federal meat inspectors. Their only recourse was to report any incidents or concerns to the senior person (the Veterinarian) in charge of the inspectors.

45Mr. Cloutier asked Agriculture Canada for a statement on the incidents. When the statement was not forthcoming he had to chase Agriculture Canada down and insist that they prepare some sort of a statement so that the corporate respondent could conclude its investigation.

46The complainant was told by his supervisor that if he had any problems with the meat inspector that he should advise Harry Myrie or Steve Ghaney (supervisors). The complainant did not follow his instructions and followed Mr. Stancombe into the supervisor's office. In that office, he prevented Mr. Stancombe from using the telephone. The complainant's conduct was aggressive.

47Mr. Cloutier testified (and I fully accept his testimony on this point) that the complainant told him and Mr. Harry Myrie that "It's a good thing that the knives were behind my back or I would have used them" (Vol. 4, p. 110). These repeated threats concerning fighting and the use of knives caused Mr. Cloutier considerable concern. The complainant was upset, his speech was slurred and he made threatening comments.

48Mr. Harry Myrie also testified that the complainant was very angry and still wanted to fight with Mr. Stancombe (Vol. 6, p. 63). He also testified that the complainant told him that he "... Followed Evan [Mr. Stancombe] everywhere because he was made enough to hit him" (Vol. 6, p. 66).

49Based upon the testimony of the witnesses, I am satisfied as to the following facts:

The complainant did make a South African type "black power" salute accompanied by some words in support of Nelson Mandela.
The federal meat inspector, Mr. Evan Stancombe, made an offensive and inappropriate response to the complainant's salute. The meat inspector's words were inappropriate, offensive and constituted a racial slur against the complainant.
The complainant was offended by the meat inspector's offensive racial slur and became visibly angry as a result of the comments made to him.
The complainant made threatening comments in which he intimated to his foreman that he would fight with his fists and might use his knives against the meat inspector.
The complainant did not follow his general foreman's instructions to report any further incidents directly to the latter. Instead, he got into a further altercation with the federal meat inspector and, as a result thereof, he made further threats.
The complainant created an atmosphere in which the respondent became apprehensive as to his threats and the violence that might have resulted therefrom on the "kill floor" of the plant.
Mr. Dan Cloutier investigated the two incidents to the best of his ability and took or received statements from the parties concerned including the complainant and Agriculture Canada.
The corporate respondent terminated the complainant's employment as a direct consequence of the latter's aggressive behaviour and threats, including his reluctance to follow instructions, leaving his place of work on the assembly line without permission, and his statements that he might resolve the matter with recourse to his fists and knives.
The corporate respondent followed its normal labour practice of not disciplining probationary employees but dismissing them for infractions of its corporate policy.
The corporate respondent and Mr. Dan Cloutier did not in any way adopt or approve of the federal meat inspector's inappropriate and offensive racial comments.
The federal meat inspector was an employee of the federal government and was on the plant premises exercising his rights under the law.
The corporate respondent and Mr. Dan Cloutier had no direct supervisory authority over the meat inspector, who was under the supervision of Agriculture Canada.

50The incidents were reported to the appropriate authorities in Agriculture Canada and a report was obtained from them. Not having adopted the meat inspector's comments or in any other way condoned his actions, the corporate respondent and Mr. Dan Cloutier cannot be held responsible for the inspector's comments.

51The corporate respondent had a moral responsibility and the legal obligation to maintain a safe working environment, to take seriously any threats of violence that might occur on their premises and to respond appropriately to such threats. It would be unreasonable to expect the corporate respondent to stand idly and not to react to threats of physical violence when other employees might be endangered. The corporate respondent did what it could do in the circumstances: investigate the incident, take written reports, and notify Agriculture Canada as to the involvement of one of its employees. Faced with the threat of physical violence from a probationary employee, they took the precaution of removing the employee from the premises and terminating this employment. In doing so, the corporate respondent and Mr. Dan Cloutier were not motivated by the complainant's race, colour, ancestry or ethnic origin but were responding directly and consequential to the complainant's threats of violence in the workplace environment and his insubordination in not following reasonable instructions.

52To the extent that there were racist comments in the relationship between the federal meat inspector and the complainant, I am satisfied on the evidence that the respondents did not in any way contribute to or adopt the inappropriate comments made by the employee of Agriculture Canada.

X. DECISION

53The complainant's complaint dated September 22, 1989, alleging discrimination in employment on the basis of race, colour, ancestry and ethnic origin by Canada Packers Inc. and Mr. Dan Cloutier is dismissed.

" Vern Krishna " Signed: _______________________

" March 7, 1994 " Date: _________________________

Ahmed v. Canada Packers Inc., 1994 CanLII 18393

Case Summary