Koech v. Cargill, 2010 HRTO 331

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Davies Koech

Applicant

-and-

Cargill Limited, Doug Hayes, Lorri Allard and Tracy Barker

Respondents

AND B E T W E E N:

Davies Koech

Applicant

-and-

United Food & Commercial Workers Canada, Locals 175 and 633, Richard Wauhkonen and John Christopher Watson

Respondents

case Resolution conference decision

Adjudicator: David Muir

Date: February 12, 2010

Citation: 2010 HRTO 331

Indexed as: Koech v. Cargill

1These Applications were filed October 14, 2008 under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). A Case Resolution Conference was held on July 20, 2009 and January 25, 2010.

2For ease of reference, the respondents in file T-0420-08 will be referred to as the “employer respondents” and the respondents in file T-0421-08 will be referred to as the “union respondents.”

Background

3The applicant self-identifies as a Black man. The applicant believes that his employment was terminated because of his race and colour and that the union respondents’ failure to take his grievance forward to arbitrations was also because of his race and colour.

4The employer respondents assert that they had cause to dismiss the applicant for a serious violation of workplace rules. The union respondents assert that their decision to not take the applicant’s grievance to arbitration was based on the weakness of the grievance. The applicant asserts that he was not the person involved in the incident. The applicant’s central allegation is that the evidence relied upon by the employer and the union to justify their decision is so weak that the only reasonable conclusion to come to is that he was terminated because of his race and colour.

Preliminary Requests for Early Dismissal

5The employer and union respondents have each brought motions to dismiss these Applications on a preliminary basis. Each state that these applications are an abuse of process or alternatively the subject matter of each has been dealt with in another proceeding. In addition, the respondents each state that the complaints disclose no prima facie case of discrimination.

6The Case Resolution Conference (hearing) commenced in Toronto on July 20, 2009 to deal with the preliminary motions of the respondents. After some discussion, I indicated to the respondents that I would not dispose of their “prima facie” motion without hearing the evidence of the applicant. After hearing from the applicant, I advised the respondents that I wanted to hear from the two eye-witnesses to the alleged events upon which the employer relied to terminate. As I indicated to the parties the question was not whether or not the applicant had in fact committed the act relied upon by the employer to terminate but rather whether or not the decision making process of the employer and the union was tainted by racial bias. As it was the evidence of the two eye-witnesses that formed the basis of the decision to terminate the applicant as well as being central to his criticism of that decision, the evidence of these individuals was central to the issues in dispute.

7At the conclusion of this evidence, the question arose whether further evidence was required of the respondents. I asked the applicant if there were any questions he would want to ask of any of the potential respondents witnesses at the case resolution conference. He indicated that if the matter proceeded further he had a number of potential witnesses he would like to question including at least one who was not present because he had understood that not all witnesses were required as the issue for determination at this stage were the motions to dismiss. On that basis I indicated to the respondents that no further evidence was required of them and I would proceed to hear submissions on their various motions.

8In a Case Assessment Direction, dated July 31, 2009, I advised the parties as follows:

The Requests for early dismissal based on the doctrine of abuse of process and that that substance of the Applications have been dealt with in another proceeding (s.45.1) are dismissed with reasons to follow, if required.

The request that the Application be dismissed because it discloses no prima facie case remains outstanding. Although the hearing proceeded in the hopes that the parties could deal with the motions in one day, after considering the submissions of the parties on the prima facie issue, I have determined that a fair, just and expeditious resolution of this dispute requires that the applicant be allowed to call further evidence to support his theory of the case. I accept that he did not summons any other witnesses because he understood, correctly, that the hearing would deal with the respondents’ motions. Although the respondents were prepared to call further evidence if directed to, not all of the possible witnesses were present and in light of the hour it would not have been practical to hear from further witnesses that day in any case.

9Accordingly, the hearing reconvened for the purpose of further evidence. In the end I heard from the applicant, the two eye-witnesses to the alleged event, Mr. Hayes and Mr. Barr-Klouman from the employer; Mr. Wauhkonen, Mr. Watson and Mr. Daudlin from the union. In addition, the individual the applicant alleges was the person seen on the morning in question was summonsed to the hearing by him.

10The complaints underlying these Applications are identical. As indicated above, the applicant believes that he was terminated because of his race and colour - either he was framed because of a desire on the part of respondents to rid this work place of Black workers or he was simply mis-identified and because of his race and colour the evidence of the white witnesses was preferred over his denial.

11On September 7, 2007 at around 2:00 p,m., the applicant was suspended from work by Shawn Barr-Klouman, his immediate supervisor, for being seen urinating in the parking lot before work that morning. On September 10, Mr. Hayes interviewed two female employees, Tracy Barker and Lorri Allard, who had reported seeing an individual subsequently identified as the applicant in the parking lot that morning and, on the strength of their evidence, terminated the applicant’s employment the same day. A grievance form, dated September 10is in the material filed by the applicant.

12The applicant states that on the morning of September 7, a fellow employee, Fazel Sheerzai, came into the work area and said that he had been seen by “a lady peeing in the parking lot”. The applicant agrees that he did not provide this information to Mr. Barr-Klouman when he was suspended later that day, nor in a detailed letter to Mr. Doug Hayes that he states he drafted on September 7 and sent on September 10.

13The applicant claimed that he wanted to be certain of what had been said to him and wished to speak to Mr. Sheerzai first. Alternatively, he states that he was shocked by the allegation against him and did not at first connect it with what he heard from his work colleague on the morning in question. The applicant testified that he did mention it Mr. Barr-Klouman on September 12 and claims to have asked Mr. Barr-Klouman to speak to Mr. Sheerzai about it. The applicant testified that Mr. Barr-Klouman told him to pass the information on to the union. Mr. Barr-Klouman does not recall saying this although he does recall at least one conversation with the applicant about this issue.

14In any case, it was not until September 19, at a third stage grievance meeting, that the applicant told the union and the employer directly what he claims Mr. Sheerzai said to him on September 7. After this revelation, there was some discussion between the union and employer of how to resolve the issue. The applicant believes that it was agreed that a picture “line-up” including a picture of Mr. Sheerzai would be used in an attempt to resolve the question of who it was who was seen that morning. The applicant tape recorded the entire meeting and provided what appears to be a more or less accurate transcript of the various discussions related to this issue. The transcript of the meeting does not support the applicant’s view that there was an agreement to use a photo “line-up”. What was clearly agreed is that the employer and union would speak with the eye-witnesses again and Mr. Sheerzai would be spoken to.

15Subsequent to the September 19 meeting, the respondents conducted a further investigation, jointly interviewing the two eye-witnesses. Mr. Watson, Plant Chair of the respondent union spoke to Mr. Sheerzai about what the applicant claimed Mr. Sheerzai had said to him.

16The Third Step meeting reconvened on September 26. In a caucus meeting with the union respondents that day, the applicant was told by the union respondents that the union had participated in a joint interview of the two eye-witnesses and that their evidence appeared to be very credible. It was also indicated to the applicant that Mr. Sheerzai was denying any involvement. The substance of the discussion with the union respondents concerned the options facing the applicant.

17The union respondents outlined the difficulties they foresaw and attempted to explain to the applicant that the evidence against him was likely to be accepted by an arbitrator and given the seriousness of the allegation a grievance was very unlikely to be successful. The thrust of the union’s approach with him was to advise that his best option was to admit the allegation and attempt to secure a “clean record” termination from the employer. The possibility of him getting his job back was also raised but that could only happen if he admitted guilt and asked for forgiveness.

18The applicant would not admit to the allegation and asked the union to proceed with the termination grievance. The respondent union decided not to proceed with the grievance and the applicant appealed that decision. The decision not to process the grievance to arbitration was upheld by the union’s Grievance Appeal Committee which recommended to the President of the Local Union that the grievance not proceed. The President accepted that recommendation and the grievance was withdrawn.

19The applicant filed an application under section 74 of the Labour Relations Act alleging that the union respondents had breached their duty of fair representation (“DFR”). The applicant alleges that he was advised by the labour relations officer assigned to mediate the DFR that he should withdraw his application and go to the Ontario Human Rights Commission. The applicant accepted that advice, withdrew his DFR and went to the Human Rights Commission on the same day, ultimately launching the complaints underlying these two Applications.

20A tape recording of a conversation between the applicant and Mr. Sheerzai was played on the first day of hearing. The conversation was said to have taken place on September 26 after the final Stage 3 meeting. It is inconclusive but one possible interpretation of its content is that Mr. Sheerzai acknowledges being the person that was seen urinating in the parking lot that morning.

21It is not insignificant that this tape recording was not provided to the respondent union or the employer until well after these events and only as part of the productions for this hearing. Had this information been provided to the workplace parties at the time decisions were being made, things might have turned out differently for the applicant. Mr. Sheerzai testified at the hearing. The recording was not played again. He denied the conversation and after reading the transcription of what can be heard on the recording, denied that any such conversation ever took place. He also denied that he told the applicant that he had been seen urinating in the parking lot. Mr. Sheerzai was not particularly credible.

22The respondents, pursuant to an Order of the Tribunal, produced records of six employees terminated for urinating in or around the workplace in 2006 and 2007. The respondents state that three of the six individuals were white Caucasian males. All were terminated. With respect to two employees, the union negotiated clean record terminations. Others were returned to employment on “last chance agreements”. One case went to arbitration and because of number of extenuating circumstances including long service with the company, an early and remorseful admission, the arbitrator put the employee back to work with a lengthy suspension.

Analysis

23The applicant’s belief is that the employer wanted to get rid of him because of his race and colour and when it learned of the allegations that a man was seen urinating in the parking lot influenced the two eye-witnesses to name him rather than Mr. Sheerazi, a Brown man, because they wanted to rid the workplace of Black men. There is no evidence to support the applicant’s allegations.

24This is an unfortunate case. The applicant passionately and fervently believes that he has been wronged. He appears to believe that he was not the person seen that morning and attempted to prove that fact. The applicant states that both Mr. Barr-Klouman and Mr. Watson told him that they believed him. Despite his denial at the hearing, Mr. Barr-Klouman may have done so. Mr. Watson did not deny making such a statement at the time.

25In the end what happened on September 7, 2007 remains unclear and it is entirely possible that it was not the applicant that was seen that day. As noted earlier however whether or not the applicant committed the workplace offence is not the issue I am required to decide. Indeed for our purposes a resolution of that issue would not be determinative of the outcome of these Applications. Rather, I must determine whether the eye-witnesses’ identifying him as the culprit and/or the decision making process of the employer and the union was tainted in any way by considerations of the applicant’s race and colour.

26The applicant has no direct evidence to support his allegations. This is not surprising. Accordingly, I directed that the employer respondents call the two eye-witnesses who identified the applicant to explore the applicant’s theory that Ms. Allard and Ms. Barker’s evidence was sufficiently unbelievable that either their observations were tainted by race or that they had been influenced by the respondents to change their evidence in an effort to target him for reasons of his race and colour.

27The two eye-witnesses were entirely credible. Their evidence was they were talking while walking through the parking lot, turned a corner around the barn and came upon on a man standing in the parking lot facing them. Ms. Barker saw him first and stated that as she continued to walk she saw a tall Black man wearing green overalls facing her but beside a car, urinating. She whispered to Ms. Allard words to the effect that there is a man peeing.

28Ms. Allard testified that they were walking quickly around a corner, when she heard Ms. Barker whisper to her,” Oh my god there is a man peeing over there” or words to that effect. Ms Allard testified that she did not immediately catch what was being said and leaned toward Ms. Barker, and then saw a man with his hands below his waist adjusting his clothing. Ms Allard testified that she could clearly see the man’s face although she did not make eye contact as she quickly averted her gaze.

29Both women said they could clearly see the person because of the floodlight on the wall behind them shining in the direction of the man. Neither knew his name, but Ms. Allard had seen him before at the workplace. Both testified at the hearing that they were certain that the man they saw that day was the applicant. Whether mistaken or not, both witnesses were entirely believable. The applicant’s attacks on their evidence even if accepted would only marginally impact on their believability.

30The applicant had a number of issues with the evidence of the two eye-witnesses:

a. He states that it is insane that someone would go to the parking lot and “and pee within 5 feet of two ladies” and takes great issue with the witnesses ability to measure distance. Neither claimed to be able measure distances accurately and various characterizations of the distance can be found in the materials - from 5 feet to between 5 and 10 feet. The statements provided by the women at the time are silent on the distance they were from the man. At the hearing, both indicated that they were about the same distances from the individual as they were sitting from me or the applicant who was sitting right beside me. A tape measure was available at the hearing and established that that this distance was between 10 and 12 feet.

b. The applicant also alleges that the distance of five feet was picked by the respondents to guarantee the success of their scheme to terminate him and points to the various ways the distance has been characterized in the notes taken from time to time. I heard the witnesses’ evidence and find nothing suspicious in the uncertainty about precisely how far away the man was when the eye-witnesses first saw him

c. The alleged event occurred at about 6:00 a.m. on a September morning and therefore it was dark. The applicant questions how the witnesses could identify him in the darkness. Both women claimed that there was a light behind them on a wall that shone over the parking lot and into the face of the individual who was facing them when they came upon him. There is no evidence to contradict this. I note that this was an issue raised by the respondents in their interviews of the two women.

d. The applicant asks how Ms. Barker could identify him when she did not know his name. Ms. Barker testified that she and Ms. Allard were able to describe the man they saw to a Mr. Hickey, who may have provided a name for them. Ms Barker was also able to identity him as someone who worked in the applicant’s work area because of the clothes he was wearing. There is no dispute between the parties that it was either the applicant or Mr. Sheerazi who was seen that day. Ms. Barker knew Mr. Sheerazi well, interacting with him at work on an almost daily basis. She was certain at the time and at the hearing that it was not Mr. Sheerazi who she saw that morning. At the end of the day, whether they knew his name or not, they both identified the applicant.

e. Ms. Allard did not see the man urinating but when Ms Barker whispered to her that there was a man peeing, looked over and saw an individual adjusting his pants. She did not know the applicant’s name but recognized him because she had spoken with him not long before when she approached him to ask if he was alright as he was sitting all alone. At the hearing she was shown a picture of Mr. Sheerzai and remained quite certain that it was the applicant that she saw that morning.

f. The applicant relied upon the fact that in their statements both women refer to the man pulling up a “zipper” rather than snaps which are standard on the overall work clothes that employees are required to wear. At the hearing both women agreed that they had no recollection of specifically seeing a zipper but both said what they recall was the man adjusting his pants as one would normally expect after urination. This discrepancy alone is insufficient to call into question the good faith of the two eye-witnesses or the accuracy of their observations.

g. The applicant relies on other minor differences in what he describes as the various statements of Ms. Allard and Ms. Barker. As I pointed out at the hearing, there were only two statements taken from Ms. Barker and Ms. Allard. They were taken on September 10th, 2007. The other “statements” are in fact notes taken by the various individuals that interviewed the witnesses at various times. In any event, the differences in what is said to have been said are very minor and while some give rise to questions that needed to be asked at the hearing, in the end none of them call into question the credibility of either witness.

31I find that the evidence of Ms. Allard and Ms. Barker was convincing and would reasonably have been thought to be persuasive by the respondents. On the basis of it, the employer respondents would have no reason to question their identification of the applicant. For the union respondents, it would also have reasonably caused them to believe that an arbitrator would likely accept their evidence and dismiss the grievance. Moreover, the evidence of the two women evinced no indication that their perceptions that morning were tainted in any way by questions of race.

32What of the allegation that Mr. Sheerazi is the real culprit here and that the respondents discounted the possibility that it was not the applicant because he is Black and Mr. Sheerazi is Brown? The respondent union interviewed Mr. Sheerazi and he denied the allegation. The applicant testified that the first time he confronted Mr. Sheerazi on his way in to the first Stage 3 meeting on September 19, Mr. Sheerzai pretended not to know what he was talking about. This evidence was offered in explanation for why the applicant finally disclosed his defence to the charge at the Stage 3 meeting. The union witness who was with the applicant when this interaction is said to have occurred, although clearly sympathetic to the applicant’s plight at the time, could not confirm the substance of this event.

33The tape recording of a the subsequent verbal altercation between Mr. Sheerzai and the applicant that was tendered in evidence, while capable of an interpretation helpful to the applicant, makes plain that Mr. Sheerazi would not likely admit that he was the man seen in the parking lot and at the hearing he did deny any involvement in such an incident. Short of a confession by Mr. Sheerazi that was ignored by the respondents, I find that my resolving the mystery surrounding Mr. Sheerazi’s role in these events would add nothing to the applicant’s case. To be clear, even if Mr. Sheerazi had confessed before me at the hearing, the question would still remain whether or not the decisions made at the time by the employer and union respondents were tainted by considerations of the applicant’s race and colour.

34The applicant also relied upon the fact that the union respondents attempted to persuade him to admit to the allegation as evidence of racism on their part. This allegation is unfounded. The transcript provided by the applicant makes plain that the union respondents were attempting to do the best they could for him in what they reasonably perceived to be a bad situation. It is not a violation of the Code to counsel a grievor to admit to something that they might not have done when it is reasonably perceived to be the only way to salvage something for the grievor.

35In conclusion, despite the applicant’s fervent views, there is simply no evidence to support the conclusion that he has been subject to discriminatory treatment at the hands of any of the respondents, union or employer. Despite the questions surrounding what happened that morning and the dubious evidence of Mr. Sheerzai, there is no evidence to support a prima facie case of discrimination as against either the employer or the union respondents.

36For all of these reasons the Applications are dismissed.