BOARD OF INQUIRY (Human Rights Code)
IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended;
AND IN THE MATTER OF the Complaint by George Forde dated March 6, 1998 alleging discrimination and harassment in employment because of race, colour, creed and reprisal.
BETWEEN:
Ontario Human Rights Commission
- and -
George Forde
Complainant
- and -
Artisan Screen Print Ltd., Peter Balzer,
Mark Voyame and Edwin Lemieux
Respondents
DECISION
Adjudicator : David J. Mullan
Board File No : BI-0362-00
Decision No : 02-010
Board of Inquiry (Human Rights Code)
505 University Avenue
5th Floor, Toronto ON M5G 2P3
Phone (416) 314-0004 Fax: (416) 314-8743 Toll free 1-800-668-3946
TTY: (416) 314-2379 / 1-800-424-116
A P P E A R A N C E S
George Forde ) On his own behalf
Artisan Screen Print Ltd. )
Peter Balzer ) Ronald P. Bohm, Counsel
Mark Voyame )
Edwin Lemieux )
NATURE OF COMPLAINT
This complaint involved allegations of direct discrimination and harassment on the basis of race, colour, and creed contrary to sections 5(1), (2) and 9 of the Human Rights Code, R.S.O. 1990, c.H.19 (as amended) ("Code"). As well, the complainant, George Forde asserted a violation of his entitlement to enforce his rights under the Code without reprisal or fear of reprisal as provided for in section 8 of the Code. He made these allegations in the context of his employment and ultimate dismissal by the respondent, Artisan Screen Print Ltd.. He also named as respondents the company's President, Peter Balzer, its General Manager, Edwin Lemieux, and another supervisor, Mark Voyame.
HISTORY OF PROCEEDINGS
George Forde filed a complaint with the Ontario Human Rights Commission ("Commission") on March 6, 1998 and, on the completion of its investigation and other responsibilities under the Code, the Commission referred the subject matter of that complaint to the Board of Inquiry ("Board") on October 2, 2000. Following mediation by the Board, the Commission indicated that it no longer wished to have carriage of the complaint. In a preliminary ruling, I directed that, as a condition of my granting its application to withdraw from active participation, the Commission file a statement of facts as provided by Rule 35 of the Rules of Practice. I also directed that, within twenty-five days of the filing of the Commission's statement of facts, the complainant file a statement detailing the issues in dispute, the remedies he was seeking, and any supplementary facts.
The Commission filed a statement of facts as directed and, thereafter, took no further active role in the proceedings. (For the balance of the proceedings, Mr. Forde represented himself.) Mr. Forde then filed a supplementary statement outlining the facts and the issues from his perspective. Subsequently, at a further pre-hearing, he stated that he was seeking $400,000 in damages, an apology from the respondents, and some form of publicity for any finding that I might make against the respondents.
The hearing took place on February 4, 5, 6, and 27, 2002. At the outset, Mr. Forde stated that he would not be relying on any of the documentation provided to him by way of disclosure but would be confining his case to his own testimony and that of witnesses on a list that he provided to the respondents and the panel shortly before the commencement of the hearing.
The last day of the hearing (February 27, 2002) was set aside for closing submissions by both sides. In commencing his closing submissions, Mr. Forde attempted to file with the panel a document that made reference to the details of the mediation that another member of the Board had earlier conducted in this matter. In response to an objection by counsel for the respondents, I ruled that I could not receive this document without the removal of all references to the content of the mediation discussions. At that juncture, Mr. Forde withdrew from the hearing saying that he no longer wished to participate. I warned him of the consequences of taking this course of action and, in particular, that I would proceed to hear the respondents' submissions in his absence. Mr. Forde left nonetheless. Thereafter, I proceeded to hear the respondents' closing argument.
BACKGROUND FACTS
George Forde was born in Guyana in 1972 and came to Canada in 1988. In May of 1991, shortly after leaving school, he commenced work with the respondent, a screen-printing company producing advertising material and providing associated services. This was Mr. Forde's first full-time work and he had had no prior training. However, he learned on the job and, over the next few years, developed a wide range of skills relevant to the respondent's operations. As a consequence, over the course of his employment with the company, he worked on various tasks on the shop floor. After some years with the company (probably in 1995), Mr. Forde, who is black, became an adherent of the Rastafarian faith and, as part of that, grew his hair in dreadlocks and allowed his beard to grow.
For a considerable time, he worked on the night shift. However, in October 1995, he made a complaint of racial discrimination and harassment against his employer to the Commission. As part of the settlement of that complaint, the company (acting through Edwin Lemieux) transferred Mr. Forde, with his consent, to the day shift. He remained on the day shift until the company, again acting through the respondent, Edwin Lemieux, dismissed him on January 22, 1998 providing no more by way of severance than required under the Employment Standards Act. Subsequently, the company, once again acting through Edwin Lemieux, offered Mr. Forde a larger sum in lieu of notice. However, Mr. Forde ultimately rejected that offer and filed a further complaint with the Commission in March of that year.
In that complaint, as carried forward to this panel, Mr. Forde alleged that, during the course of his employment with the respondent company, he had been the victim of numerous incidents of racial and religious discrimination and harassment. He named the three personal respondents as among those who had engaged in that conduct. More generally, he asserted that Artisan Screen Print Ltd. was a workplace that was poisoned against black employees. He also alleged that, in the wake of his original complaint to the Commission, the corporate respondent, acting through Edwin Lemieux and Mark Voyame, had both threatened to take and had taken reprisals against him for making that complaint. Those reprisals came in the form of a threat that he would no longer be assigned overtime, a threat that he alleges these two respondents carried out. In addition, he claimed that the company's decision to dismiss him and the manner of carrying out that dismissal was similarly discriminatory.
FINDING
On the evidence presented, I accept that George Forde was the victim of racial harassment on the part of both supervisorial personnel and fellow workers prior to his transfer from the night shift to the day shift in late 1995. However, to the extent that that transfer was in itself the resolution of his earlier complaint to the Commission, it cannot form the basis of any finding of discrimination and harassment in the context of this current complaint.
As for the complaints relating to events subsequent to his transfer to the day shift in late 1995 (including his dismissal in January 1998), I find that the complainant has not made them out on the evidence. Mr. Forde's testimony was sufficient to show a prima facie case in the sense that, if believed, it would have established at least some incidents of direct discrimination: Ontario (Human Rights Commission) v. Simpsons Sears Ltd., [1990] 2 S.C.R. 536 at p.558 (McIntyre J.). However, there was little or no corroborative evidence for the various allegations that Mr. Forde made but rather, in the instance of the personal respondents, vigorous and at times convincing denial of the events and practices to which Mr. Forde had testified. In relation to some of these matters, I have preferred the testimony of the personal respondents to that of the complainant. As for the balance, in the absence of any real basis for accepting the testimony of George Forde over that of the personal respondents, I have found that the complainant has not established his case on a balance of probabilities. For the more specific reasons that follow, I am therefore dismissing the complaint.
RELEVANT STATUTORY PROVISIONS
In making his complaint, George Forde relied upon the following provisions of the Code:
- (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offence, marital status, same-sex partnership, family status or handicap.
(2) Every person who is an employee has the 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, sex, sexual orientation, age, record of offence, marital status, same-sex partnership, family status or handicap.
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of a person under this Act, without reprisal or fear of reprisal for so doing.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part. [Emphasis added]
SPECIFIC ALLEGATIONS
For the purposes of analysis, it is helpful to segment the various complaints into four separate categories: 1. Those arising out of the period prior to the end of 1995 when Mr. Forde worked on the night shift; 2. Those involving the alleged threats of and actual reprisals arising out of Mr. Forde's 1995 complaint to the Commission; 3. Those pertaining to the period between his transfer to the day shift and his dismissal in early 1998; and, 4. Those concerned with his dismissal and the manner of that dismissal on January 22, 1998. Within the third category, I will also deal separately with (a) alleged incidents of discrimination and harassment directed against Mr. Forde personally and specifically, and (b) the more general assertions that management and, in some instances, fellow employees to the knowledge of management engaged in conduct and practices which discriminated against and harassed black employees (including George Forde) and, in effect, led to a situation where management was either creating or condoning a poisoned workplace.
1. The Events Leading to the 1995 Complaint
George Forde, in testimony that was corroborated by Nidus Greenland, another black former employee of the company, provided convincing evidence of incidents of verbal harassment on the basis of race principally perpetrated by the then foreman of the night shift and a fellow employee, not named as respondents in these proceedings. The culminating incident occurred in October 1995 and took the form of racist remarks directed at George Forde by the night foreman and at least one other white worker. The reference point for these slurs was the O.J. Simpson trial that was ongoing at that time.
Mr. Forde complained about this conduct to Edwin Lemieux, who at that point had overall responsibility for personnel issues arising on the night shift. Thereafter, a meeting took place at which George Forde alleges that he was mocked by Edwin Lemieux, whom he also alleges had been crudely dismissive of earlier complaints of harassment that Mr. Forde had brought to his attention. Nidus Greenland, who was present both at the meeting and some of the earlier incidents, provided corroboration of that testimony. In his own testimony, Edwin Lemieux denied being dismissive of Mr. Forde's complaints but rather stated that he told the assembled employees that he wanted to hear no more of this kind of complaint and that this type of conduct had no place on the shop floor. Given the ambiguity in part of this statement – that he wanted to hear no more of this kind of complaint – it is easy to see how George Forde and Nidus Greenland might have viewed Mr. Lemieux as unconcerned with the complaints and wanting to avoid responsibility for dealing with such matters. Indeed, there is support for George Forde's dissatisfaction with the outcome of the meeting in his then making a formal complaint to the Human Rights Commission.
In any event, I find it unnecessary to resolve all of the issues surrounding George Forde's time on the night shift and the culminating incident and subsequent meeting. Given that the Commission, apparently to George Forde's satisfaction, settled these particular complaints, there is no basis for revisiting them in the context of the current proceedings, save as general background (particularly to the allegations of reprisal and threats of reprisal), as a potential source of similar fact evidence, and possibly as providing some support for other evidence of management's responsibility for creating a poisoned workplace environment. However, Mr. Forde can no longer use these incidents as a basis for any claim against the respondents for relief under the Code.
2. Reprisal and Threats of Reprisal
Mr. Forde alleges that, in the wake of his complaint to the Commission and the settlement of that complaint by his transfer to the day shift, Mark Voyame and Edwin Lemieux told him that they would no longer assign him overtime because he had gone to the Commission. Both Mark Voyame and Edwin Lemieux denied having made these threats and, in the absence of any corroborative testimony, there is no basis for preferring Mr. Forde's account to theirs. The respondents also provided documentation detailing Mr. Forde's record of overtime during the relevant period, documentation that Mr. Forde did not question. That documentation clearly establishes that there were in fact no reprisals of the kind alleged (Exhibit A, Tab 5 and Appendix A to Respondents' Closing Argument). Moreover, the fact that Mr. Forde continued to work overtime at all relevant points also lends credence to the testimony of both Mr. Voyame and Mr. Lemieux that they never threatened to deprive Mr. Forde of overtime.
3. Ongoing Discrimination and Harassment After Transfer
(a) Specific Incidents Involving George Forde
Mark Voyame
As evidence of ongoing racial and religious harassment and discrimination in the workplace, Mr. Forde relied on an incident in late 1995 or early 1996 in which Mark Voyame called him "an idiot". In fact, Mr. Voyame admitted that the incident took place, denied that it had anything to do with Mr.Forde's race, colour, or creed, but rather attributed it to his own bad temper, which he has difficulty keeping in check. He also testified that, of his own accord, he had apologized to Mr. Forde shortly thereafter and that they had shaken hands. Edwin Lemieux, who was in the vicinity at the time, confirmed this version of the events. George Forde recollected the matter somewhat differently stating that Mr. Voyame only apologized after he (Forde) had taken the matter to Mr. Lemieux and that he and Mr. Voyame had never shaken hands.
Without context (and neither Mr. Forde nor Mr. Voyame really provided any), it is impossible to make any finding that this insult was either in whole or in part racially or religiously motivated. Indeed, given the clear testimony of both Mr. Lemieux and Mr. Voyame as to the course of events, it is far more likely that the incident was the product of normal tensions on the floor of the workplace and that the person responsible attempted in good faith to repair the damage as soon as he had cooled down and come to his senses.
The Company Video
Some time after Mr. Forde had grown his hair and beard in the Rastafarian style, Mr. Forde alleged that the President of the company, the respondent, Peter Balzer had told him that he (Forde) would not appear in a promotional video being made by the company because he looked "nasty". Mr. Balzer denied making any such statement.
At the hearing, counsel for the respondent showed the panel a promotional video in which George Forde appears and is apparently engaged in work on the shop floor. Mr. Forde accepted that it was indeed he but stated that the company made many videos and that this was not the relevant one. Peter Balzer testified that this was the only video the company had ever made. On that point, I prefer the testimony of Peter Balzer to that of George Forde and, more generally, find that there was insufficient evidence of Mr. Balzer ever making the alleged statement.
Other Alleged Conduct by Peter Balzer
According to his own testimony and that of both Edwin Lemieux and Mark Voyame, Peter Balzer was a "hands-on" President to the extent of being frequently present on the shop floor generally carrying a broom and sweeping as he went along while also taking note of how work was progressing. George Forde also testified as to this pattern of behaviour on the part of Mr. Balzer and added that Mr. Balzer used this as an opportunity to "shadow" him in the sense that he would turn around and there would be Mr. Balzer staring at him often in a threatening manner. There was no corroboration of this particular version of the way in which Mr. Balzer conducted himself on the shop floor and Mr. Balzer denied it explicitly. Whatever interpretation one might place on such conduct, I find that there was insufficient evidence that it even occurred.
Mr. Forde also alleges that Mr. Balzer made fun of his skin colour on an occasion when there was a power outage on the shop floor by pretending not to see him in the dim light and yelling out "George, where are you?" when Mr. Forde was right in front of him. Once again, Mr. Balzer denied that such an incident ever took place and I am not prepared to find that it did in the absence of any testimony corroborating Mr. Forde's testimony.
(b) The Possibly Poisoned Workplace
In addition to testifying that he had been the victim of specific acts of discrimination and harassment, Mr. Forde also alleged that the workplace was more generally a poisoned one for black workers. In this context, he asserted both that management in the persons of Edwin Lemieux and Mark Voyame were directly implicated in the creation of this environment and also that management in the form of Edwin Lemieux and Peter Balzer were responsible for its perpetuation in that they refused to do anything about his complaints: Ghosh v. Domglas Inc. (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 at D/227, paras. 76-77 (Ont. Bd. Inq. - Hubbard); McKinnon v. Ontario (Minister of Correctional Services) [1998] O.H.R.B.I.D. No. 10 (Q.L.) (Hubbard).
General Patterns of Verbal Abuse
In this context, Mr. Forde alleged that both management and other employees singled out black workers for abusive and racist comments. Thus, he testified as to the use of foul and abusive language directed at him by both Mr. Voyame and Mr. Lemieux, as well as to Mr. Lemieux telling him to have his hair cut. George Forde's brother, Dennis Forde, another former employee of the company, testified in similar vein in relation to an incident which occurred in late 1987 when he was operating a machine while sitting down because of a back injury. He stated that Edwin Lemieux yelled at him in foul and abusive language because of the way in which he was working. George Forde, who was working with his brother at that time, confirmed Dennis Forde's testimony. The specific Voyame incident aside, both Mr. Voyame and Mr. Lemieux denied the allegations that they were abusive in the workplace to the employees in general let alone black employees or George Forde specifically.
It is difficult to imagine that there was not the occasional use of crude or foul language in this workplace by both managers and employees. In any event, even if the testimony of both George and Dennis Forde is believed, I find that it did not go as far as establishing that, on the day shift after 1995, this language and abuse was directed at black workers exclusively or that it was in whole or in part based on their race, colour, or creed. Indeed, it is of significance that Owen Swain, another black former employee of the respondent called as a witness by George Forde, testified in quite different terms about the treatment he received from the company on the shop floor and at the time of his layoff. While he was upset that the company did not recall him when its business picked up, he spoke of generally good and genial relations with management at Artisan Screen Print and Edwin Lemieux in particular. He did not feel discriminated against in the workplace.
More generally, the three witnesses called by George Forde were unable to provide any evidence collaborating the allegations that, during the time George Forde worked on the day shift from late 1995 onwards, each of the three personal respondents verbally abused and harassed him. Nidus Greenland was laid off in January 1996 and was still working on the night shift at that time. Dennis Forde testified that he knew of nothing between his brother, George and Peter Balzer, and did not provide any evidence of incidents involving George Forde and either of the other two personal respondents. In the case of Owen Swain, he recollected a heated discussion between George Forde and Peter Balzer but was too far away to know what it involved. Aside from that, he did not testify as to any problems between George Forde and either Edwin Lemieux or Mark Voyame.
At the hearing, Gary Harper, another black employee of the company also testified as to what he saw as racially harmonious working conditions at Artisan Screen Print. This evidence was compelling in its detail. However, given that Mr. Harper had not been hired until November 1998, it did not provide any real assistance in assessing Mr. Forde's complaints as to conditions on the shop floor in the period between late 1995 and his dismissal in early 1998.
Rates of Pay, Access to Overtime, Layoff and Recall after Layoff
In many ways, the most serious allegations made by Mr. Forde, and supported in varying ways by his brother, Dennis, Nidus Greenland, and Owen Swain, were those concerning the company's treatment of black employees with respect to rates of pay, the assignment of overtime, layoff, and recall after layoff. Of these matters, George Forde was involved personally in only the first two, rates of pay and assignment of overtime.
Mr. Forde testified that the company often hired white workers with no experience at a starting hourly rate identical to that which he and other black workers with considerable experience were then earning. He also testified that he and other black workers were expected to train the new white employees who soon thereafter outstripped black workers in terms of their wages. More generally, he asserted that black workers received lower wage adjustments than white workers.
Neither George Forde nor his other witnesses were able to provide any supporting detail on this point. It was simply asserted as the truth. Indeed, the only relevant documentary evidence before me was the history of George Forde's own wage progression. It was regular and upward, starting at $8.50 an hour in 1991 and progressing to $12.50 by 1998. (Exhibit A, Tab 1). According to the company, the increases were in excess of those in general industrial wage levels over the relevant period. In the absence of any concrete evidence other than the witnesses' straight assertions, there is simply no basis for a finding that black workers in general and George Forde in particular were subject to wage discrimination of the kind alleged.
The same is true of the allegations with respect to the assignment of overtime. Indeed, statistics produced by the company (Exhibit A, Tab 7) indicated that black workers worked as much if not more overtime than white workers. George Forde did not deny that. However, he asserted that white workers were generally offered overtime first but that, because they were less interested in overtime than black workers, the black workers ended up by doing more. Mark Voyame and Edwin Lemieux each denied this allegation. They both testified that the assignment of overtime proceeded on the basis that it was first offered to those working on the machines for which overtime was required and, thereafter, if those offers were not taken up, to all on the shop floor qualified to operate the relevant machine. Once again, in the absence of more concrete evidence, it is impossible for me to find that Mr. Forde has made out the allegations of racial or religious discrimination in the allocation of overtime.
Though this did not affect Mr. Forde directly, George Forde, Nidus Greenland, and Owen Swain all testified that black workers were the more likely targets when the company needed to lay off workers and that less experienced white workers were kept on. Owen Swain also testified that he felt that the company could have recalled him after his own layoff once business conditions had again improved, but professed no definite knowledge of why he was not. Here too, there was an absence of concrete evidence in support of these general assertions and, therefore, I am not willing to accept them as similar fact evidence in support of George Forde's claim. The same also holds for the unsubstantiated speculation by both Nidus Greenland and Dennis Forde that the company was instrumental in them losing other printing jobs for which they had been hired or not obtaining jobs for which they had applied and were qualified.
In this context, Mr. Forde also alleged that, at various times, he had taken complaints about the company's treatment of black workers to each of the three personal respondents. Each denied that he had ever received any such complaint from Mr. Forde. Here yet again, in the absence of corroboration, I had no basis for preferring Mr. Forde's version of these events to that of the three personal respondents.
4. The Firing of George Forde
There was once again conflicting testimony as to the events surrounding the dismissal of George Forde on January 22, 1998. George Forde testified that Edwin Lemieux fired him in front of other workers when he arrived at work on the relevant morning. More specifically, George Forde alleges that Mr. Lemieux told him that he need not bother to clock in as he had been dismissed. In contrast, Edwin Lemieux testified that he met Mr. Forde at the punch-in clock and asked him to come to his office where he conveyed the news to Forde that the company was dismissing him. Neither version of events was the subject of corroborative evidence. Moreover, even if George Forde's version is accepted, it does not speak in any direct way to a discriminatory firing on the basis of race, colour, or creed. At best, it might lend some support to other more cogent evidence of an impermissible motivation for dismissal.
George Forde alleges that, in fact, this was the ultimate manifestation of the respondents' discriminatory and harassing treatment of him in the wake of his earlier 1995 complaint of discrimination to the Commission. In essence, according to Mr. Forde, the machine that he was currently operating was about to be decommissioned and sold off, and the respondents saw this as an ideal time to get rid of him. George Forde also testified that, given his experience and skills, it would have been relatively easy for the respondents to have assigned him to other work for which he was already trained or to have provided him with training on the replacement machine.
The company's account, which emerged from the testimony of both Edwin Lemieux and Peter Balzer, was quite different. With the decommissioning of the machine on which George Forde was then working came a situation in which the company had one more employee than it needed currently. It was therefore necessary to dispense with the services of one of the two employees working on that machine. The choice to be made was between George Forde and another of his brothers, Oswald Forde. Edwin Lemieux had the final decision and he chose to retain Oswald, and, as at the date of the hearing, Oswald Forde was still with the company.
Neither Peter Balzer nor Edwin Lemieux dealt directly with the assertion by George Forde that they could have either redeployed him (because of his experience and skill, though presumably at the expense of some other employee) or retained him for training on the new machine. However, Edwin Lemieux testified as also having other reasons for dispensing with George Forde's services. As far as he was concerned, George Forde had developed a hostile and uncooperative attitude that he was very reluctant to tolerate.
None of the three personal respondents expressed any concern with the quality of George Forde's work. Indeed, Edwin Lemieux stated that Mr. Forde's performance and reliability were not issues in the decision to dismiss him. Rather, he asserted that two incidents in the weeks immediately before Mr. Forde's dismissal had been critical. The first occurred at the 1997 company Christmas party at which George Forde refused to shake Peter Balzer's hand when he extended it in wishing Mr. Forde a happy Christmas. Mr. Forde explained this apparent snub of his boss on the basis that he did not believe in Christmas.
More significant was his conduct at an interview with Edwin Lemieux on January 2, 1998. The purpose of this interview was to inform Mr. Forde of a fifty cent increase in his hourly wage. Mr. Forde, by his own admission, did not take kindly to the amount of that increase and refused to listen to Mr. Lemieux when he offered to explain the increase in light of the current state of the company's business. Indeed, according to Mr. Lemieux, Mr. Forde became belligerent and questioned the level of his increase given Mr. Balzer's ownership of three motor vehicles. Mr. Forde denied that he had been belligerent or that he had made reference to Mr. Balzer's personal wealth. Whatever version is believed, what is clear is that the meeting ended on a sour note, and Edwin Lemieux testified that he was left offended by George Forde's attitude and refusal to listen to his explanation. He also testified that this particular incident was very much in his mind when he decided to select Mr. Forde as the person to let go because of the new machine. While he reported the events of the interview to Mr. Balzer, the decision to dismiss Mr. Forde was his and his alone. Mr. Balzer confirmed this.
Following the firing, Mr. Lemieux, of his own accord, reassessed the situation and, while not of a mind to reverse his decision, decided that the severance package of fourteen weeks wages he had offered at the time was insufficient. After further discussions with George Forde and seemingly with Mr. Forde's concurrence, he went to Peter Balzer for approval to pay Mr. Forde $13,000 severance pay in lieu of notice. Mr. Balzer approved this arrangement but it then fell apart when Mr. Forde demanded that the company also pay the tax on the package. In that context, Mr. Forde stated that, if the tax were not added to the settlement, he would again complain to the Commission. The company demurred and the negotiations went no further. Approximately one month later on March 6, 1998, George Forde filed his complaint with the Commission.
On the strength of the evidence, there is no doubt at all in my mind that the relationship between George Forde and his employer had deteriorated and, in the case of Edwin Lemieux, to a point where he was not unhappy to have an apparently objective, business-related reason for letting George Forde go – the obsolescence of the machine on which Mr. Forde was then working. It is, however, also clear to me that, had the relationship between Mr. Forde and Mr. Lemieux been better, a way could and would have been found to retain both Mr. Forde and his brother, Oswald. George Forde was a long-term employee with a great deal of expertise and a clear capacity for good and hard work. I am also somewhat skeptical as to whether the two incidents that figured so prominently in the testimony as the cause of Mr. Lemieux's problems with George Forde's attitude were the only factors in the breakdown in the employer/employee relationship even though Mr. Lemieux did testify in strong terms as the extent to which he was upset at Mr. Forde's conduct at the performance interview.
Nonetheless, even taking these doubts into account and recognizing that Mr. Forde is entitled to succeed even if a prohibited ground of discrimination was but one of the factors in the decision to dismiss him (e.g. Potocnik v. Thunder Bay (City), [1997] O.H.R.B.I.D. No. 2 (Q.L.) (Slotnick)), there is not a sufficiently sound evidential basis on which to find that Mr. Lemieux discriminated against Mr. Forde either in whole or in part on the basis of race, colour, or creed in dismissing him. While there may be various bases on which Mr. Lemieux's actions constituted a wrongful dismissal at common law, that in itself is not an adequate basis for a finding of unlawful discrimination: Skeete and Samuel v. Jolyn Jewellry Ltd. (1980), 1 C.H.R.R. 1491 at 1554 (Ont. Bd. Inq. – Ratushny). On the facts before this panel, Mr. Lemieux's actions are as, if not more consistent with a company decision to dispense with the services of a sullen and discontented employee whose current position had become surplus to needs.
Mr. Forde asserted ongoing difficulties with the company in the aftermath of his transfer to the day shift in late 1995. These difficulties, he alleged were linked not only to the alleged specific incidents about which he testified but also to the failure of the three personal respondents to take notice of his complaints about his level of pay and that of other black workers and about the company's allegedly discriminatory practices in the assignment of overtime. Yet, the three personal respondents vigorously and specifically denied all of these accusations. While Dennis Forde, Nidus Greenland, and, to a lesser extent, Owen Swain testified to sharing many of those opinions as to the way in which the respondents generally treated black workers in comparison to white workers, there was no concrete corroboration of those perceptions. Indeed, at least on the issue of overtime, there was evidence to the contrary. Also, none of three witnesses who appeared for the complainant could provide corroboration of any of George Forde's allegations of discriminatory and harassing conduct directed at him personally. Indeed, in contrast, the three personal respondents each testified to being completely unaware of any continuing problems that George Forde was experiencing on the basis of his race, colour, or creed in the wake of his redeployment in late 1995 and, more importantly, disavowed strongly having been personally involved in the creation of any such problems.
Clearly, there was a serious conflict as between the evidence of George Forde and that of the personal respondents about what was happening to and with George Forde and black employees generally in the workplace between late 1995 and the 1997 company Christmas party. Given that and the absence of any corroboration of Mr. Forde's version or perception of those events, I conclude that he has not provided any direct evidence that his dismissal in January 1998 was discriminatory on the basis of race, colour, or creed. Moreover, the totality of the evidence as established by reference to the standard of a balance of probabilities does not justify the drawing of an inference that the company, acting principally through Edwin Lemieux, dismissed George Forde either in whole or in part for reasons prohibited by the Code: Daniels v. Hamilton-Wentworth (Regional Municipality) Police Services Board, [1996] O.H.R.B.I.D. No. 39 (Q.L.) (Knopf) at para. 150.
DISPOSITION
The complaint is dismissed.
Dated at Toronto this 23rd day of May 2002
"David J. Mullan"
David J. Mullan, Member