Frank Barfi-Kwabena v. Knoll North America Corporation, 2009 HRTO 619

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Frank Barfi-Kwabena Applicant

-and-

Knoll North America Corporation, Ellen Blahitka and Bruno Ratzki Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: David A. Wright Date: May 12, 2009 Citation: 2009 HRTO 619 Indexed as: Barfi-Kwabena v. Knoll North America Corporation

APPEARANCES

Frank Barfi-Kwabena, Applicant U-Shenk Koroma, Marcia Channer and Cecil Norman, Representatives

Knoll North America Corporation, Ellen Blahitka and Bruno Ratzki, Respondents Gary Graham and Robert Dunford, Counsel

INTRODUCTION

1This is an Application filed under s. 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant made a Complaint to the Ontario Human Rights Commission on April 25, 2005 alleging discrimination in employment on the basis of race, ancestry, place of origin, colour, ethnic origin and reprisal. On August 13, 2008, he exercised his right to abandon the complaint and make an Application to the Tribunal with respect to its subject-matter.

2Following a mediation at which the matter did not resolve, the Case Resolution Conference (CRC) was held on March 12, 2009 and was conducted in accordance with the expectation, expressed in the Code and the Tribunal's Rules, that section 53(3) applications proceed in an informal and highly expeditious manner.

3Frank Barfi-Kwabena identifies as black and is from Ghana. From 1987 to 2004, he worked for the respondent Knoll North America Corporation ("Knoll" or the "employer") and its predecessor in its Woodbridge factory manufacturing office furnishings. At the time his employment ended, he worked as a machine operator.

4There are three central aspects to this Application. First, the applicant alleges that the plant manager called him racist names on various occasions and that the employer failed to respond to his complaints about this. The second relates to the applicant's resignation in 2004 following a dispute with the employer over workplace safety (the "mack wrapper incidents"). He alleges that the employer's response to his safety complaints, its three-day suspension of him after a dispute with his supervisor, and its requirement that he attend the Employee Assistance Program before returning to work were discriminatory. The third is the alleged failure of the employer to investigate allegations of discrimination raised by the applicant in the course of meetings about the mack wrapper incidents.

RACIST NAME-CALLING

5Bruno Ratzki became the Panel Plant Manager in or about 2000. Mr. Barfi-Kwabena alleges that, from the time he started, Mr. Ratzki called him racist names and encouraged others to do so. The applicant testified that Mr. Ratzki said "Africans are lucky to be in Canada", called him a "nigger" and said that he was a "black African who didn't appreciate being in Canada". He said that Mr. Ratzki also "let other people come and say discriminatory words in my face" including "gorilla" and "go back to Africa and get back to where you came from". He testified that such incidents took place two or three times.

6The applicant testified that he spoke to Knoll's Manager of Human Resouces, Ellen Blahitka, about the harassment more than three times. The final time, he said, was during a meeting where Allen Goffenberg, Vice-President of Site Operations, was present, shortly before the end of his employment. He also said that he told managers Somphat Pathammavong and Joanna Sinopoli-Cirelli about the problem, but neither did anything.

7The applicant wished to introduce "similar fact evidence" from two other witnesses about other alleged actions by Mr. Ratzki. I questioned the proposed witnesses, and found that they did not in fact allege similar incidents. I therefore found that their evidence was not admissible, in accordance with the principles in Sinclair v. London (City), 2008 HRTO 48 at paras. 24 – 26.

8Mr. Ratzki, Mr. Pathammavong, and Ms. Blahitka testified at the hearing. Mr. Ratzki denied the allegations and all three denied that Mr. Barfi-Kwabena had made complaints about racial slurs. Mr. Ratzki stated that he would never use the word "nigger".

9Having heard the evidence, I find that Mr. Barfi-Kwabena's allegations, both about the harassment and about telling others about it, are untrue. His evidence at the hearing about the nature of the harassment was significantly different from the allegations in the complaint and in the Statement of Facts filed with the Tribunal. He was unable, during his testimony, to situate, even in general terms, the time and place of the alleged name-calling. The evidence of Mr. Ratzki and Mr. Pathammavong, in contrast, was consistent and credible.

10I accept Mr. Ratzki's evidence about the hurt that these allegations have caused him. In Canada's multicultural society, where human rights are a central value, allegations of racism, particularly those as strong as in this case, are treated seriously and it was undoubtedly a stressful experience to be a respondent to this Complaint. I therefore find it appropriate to express the Tribunal's unequivocal rejection of the allegations and confidence that Mr. Ratzki did not make the comments alleged and that the applicant did not make complaints about him to others.

THE MACK WRAPPER INCIDENTS AND SUBSEQUENT INVESTIGATION

11On September 23, 2004, a piece of trim flew out of the "mack wrapper" machine that Mr. Barfi-Kwabena was operating, in an incident Mr. Ratzki subsequently described as a "near miss". Mr. Ratzki then organized a meeting to discuss the incident, held on September 29, 2009, which included the applicant. The minutes of the meeting indicate that the group discussed various possible causes. The "action plan" was that the current stock of trim would be used by October 1 and a new batch that would fit better would then be used. Operators were to tape the trim before it went through the stretch wrapper to prevent it falling off.

12On October 22, 2009, there was apparently another problem with the Mack Wrapper machine. According to Mr. Pathammavong, Mr. Barfi-Kwabena walked up to him with a piece of trim, snapped it, and threw it into the box beside Mr. Pathammavong. He described the applicant as angry and frustrated. Various other employees gave a similar version of events to management when they were interviewed about the incident. Mr. Barfi-Kwabena denies breaking the trim or being angry, stating that it was already broken when he went to Mr. Pathammavong.

13As a result of his safety concerns, the applicant contacted the Ministry of Labour, which investigated under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, as amended, and determined that there was no need to issue an order.

14The employer gave the applicant a three-day suspension as a result of the incident, and required that he seek counselling through the employer's Employee Assistance Plan (EAP) provider at no charge and commit that there would be "no further acts of inappropriate behaviour". Mr. Barfi-Kwabena asked the respondent to provide him a written assurance of his safety, which the company declined to provide. The applicant decided not to attend the EAP. Accordingly, the company terminated his employment.

15The applicant suggests that in some way, the employer's response to his safety concerns was insufficient and discriminatory on the basis of race. I disagree. While the employer did not share Mr. Barfi-Kwabena's view of what the solution should be, it is apparent that it took his concerns seriously through holding a meeting and developing a solution. The Ministry of Labour accepted that the machine was not a risk. There is no evidence or reason to believe that the applicant's race played any part in Knoll's actions. Similarly, there is no evidence to suggest that the decision to suspend him or require counselling was related to his race, as opposed to the reports the employer received during its investigation about his behaviour, together with his previous disciplinary record, which indicated significant cause for concern.

THE ALLEGED FAILURE TO INVESTIGATE

16It is undisputed the applicant made two statements about race in the course of the employer's investigation of the October 22, 2004 incident. The notes of his interview with Khesh Pershad record that the applicant said, "I will not run a defective product. Knoll does not care if the life of a Black Man is lost". Ms. Blahitka testified that during a meeting on October 26, the applicant said that he was a black man in the workplace, that his safety was not guaranteed and that he wanted his safety to be guaranteed. She says she replied that the employer did not tolerate discrimination in the workplace and if he had those concerns, the company would deal with them when he returned to work.

17The Tribunal has held that there is duty under the Code to take reasonable steps to investigate allegations of discrimination: Laskowska v. Marineland, 2005 HRTO 30 at paras. 51 – 53; Selinger v. McFarland, 2008 HRTO 49 at para.19; Nelson v. Lakehead University, 2008 HRTO 41 at paras. 92 – 93.

18I must admit to some concern about the employer's failure to ask Mr. Barfi-Kwabena further questions to ascertain what he meant by these statements. However, viewed in context, I find that these statements did not trigger a duty on the employer to carry out any further investigations. The statements that Knoll did not care about the safety of a black man and would not guarantee the safety of a black man in the workplace must be seen in the context of the dispute between the applicant and Knoll about the safety of the mack wrapper machine. The reasonable interpretation of these assertions, given the events that had taken place, were that Knoll had responded to his safety concerns as it had because of his race. There had been extensive steps taken to deal with those concerns, including a meeting, action plan, and an investigation by the Ministry of Labour. The machine appeared to be safe. There were no further steps that were reasonably necessary to deal with the applicant's allegations when his safety concerns had been addressed. The analysis of the need to investigate allegations about risks to the "safety of a black man" would be completely different if they did not come in the context of a dispute about the safety of workplace equipment.

19I therefore find that there was no violation of the Code through the employer's failure to conduct further investigation as a result of Mr. Barfi-Kwabena's statements.

ORDER

20The Application is dismissed.