HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Muharrem Kerceli
Applicant
-and-
Massiv Automated Systems
Respondent
DECISION
Adjudicator: Laurie Letheren
Indexed as: Kerceli v. Massiv Automated Systems
APPEARANCES
Muharrem Kerceli, Applicant
Linda Dargavel, Paralegal
Massiv Automated Systems, Respondent
Eric T. Gresham, Counsel
1On May 20, 2015, Muharrem Kerceli (“the applicant”) filed this Application against Massiv Automated Systems (“the respondent”). In this Application, the applicant alleges that he experienced discrimination and harassment in employment on the basis of race and sexual orientation, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”).
2The respondent designs and builds automated assembly lines for vehicles. The applicant was an employee of the respondent. From 2000 to 2005, the applicant had been placed for work at the respondent by an employment agency. He was later hired by the respondent as a contract employee in July 2014. The allegations made in this Application refer to incidents that occurred during the period of time from July 2014 to April 2015 when he worked for the respondent as a saw operator in its fabrication department.
3In the Application, the applicant alleges that one of the respondent’s saw operators would not allow him to touch company property and called him “crazy”. He further alleged that another employee called him names like he was gay and said his face looked like a girl. He alleged that he spoke to management about both these employees. He alleged that these behaviours continued until he was terminated from his employment. Through his witness statement and his testimony during the hearing, the applicant described in more detail the things that were said to him by these employees which he alleged infringed his rights to be free from harassment and discrimination in the workplace. He also described the steps he took to complain about what he alleged was discriminatory treatment.
SUMMARY OF THE evidence
4The Application was heard on March 4, 2016, and May 26 and 27, 2016. The Tribunal heard evidence from the applicant and his witness who worked at the respondent during the relevant period of time. There was also evidence from a number of the respondent’s witnesses who worked in the same area of the plant as the applicant and from others who worked in supervisory and management roles at the respondent.
5The following is a summary of the evidence heard.
Muharrem Kerceli
6The applicant gave evidence that he had been placed to work at the respondent plant through a temporary employment agency from 2000 to 2005. In July 2014, he was hired into a contract position at the same plant after he had received a message on his Facebook page from Joe McGarry (“McGarry”) inviting him to call if he wanted a job. McGarry was the applicant’s supervisor at all relevant times to this Application.
7The applicant stated that when he commenced work in July 2014, he did not receive any orientation. In cross-examination, he acknowledged that he received the employee Handbook that contained the Harassment and Discrimination Policy. He stated that he was told to take the Handbook home. No one asked him to confirm he had read it and no one explained this Handbook or safety rules to him. He stated that he was not shown through the plant, which he assumed was because he had worked there before.
8When the applicant first started, he worked the night shift which began at 3:30 p.m. He was switched to day shifts in August 2014 when a saw operator on the shift, Johnson Ediae (“Ediae”), was on vacation. When Ediae returned from vacation, the applicant remained on the day shift to be the second saw operator for that shift. The hourly pay rate for the day shift was $14 and $15 for the night shift.
9The applicant testified that he worked at the bench beside Ediae. Shortly after Ediae returned from vacation, the applicant alleges that Ediae would not let the applicant touch the equipment needed to do the job. The tools were placed in a locker and Ediae locked it and kept the keys. He told the applicant to go get his tools from the tool room, which forced the applicant to walk to a different area in the plant. He stated that Ediae would yell at him not to touch the equipment. He stated that Ediae would move, or not show him, the paperwork that outlined their cutting directions.
10The applicant stated that he went to McGarry to ask what he should do about this and McGarry did speak to Ediae about sharing the tools. Ediae gave the applicant the tools when McGarry was there but when McGarry was no longer in the area, Ediae would refuse to share the tools.
11The applicant stated that Ediae would repeatedly call him “crazy” or said, “you people are crazy.”
12The applicant was asked if he had questioned Ediae about what he meant when he said, “you people are crazy.” He stated that he had not asked him because Ediae had not spoken to him for over two months. He testified that he reported Ediae’s behaviour to McGarry again in September 2014. He stated that he also spoke about it in Gyanendranauth Narain’s (“Narain”) office with Ediae, McGarry and Narain in November 2014. Narain is the general manager of the plant. He described the meeting as a verbal discussion of no more than 10 minutes and he did not see anyone take any notes. He and Ediae were each given an opportunity to tell their story. The applicant stated that he explained to Narain that Ediae does not want to share tools with him, talk to him or help him and says “you people are crazy.” He stated that he told Narain that he did not feel like coming to work because of this. He stated that Narain said that he would handle the situation. The applicant stated that Narain told him that because the applicant’s employment was temporary and Ediae is full time, Narain did not know what he could do from that point.
13The respondent showed the applicant handwritten notes that McGarry claims he wrote after the meeting in Narain’s office. They are dated Sept 24, 2014, but the applicant remained certain that the meeting took place sometime in November 2014. The note makes reference to the applicant calling Ediae, “Ebola”. The applicant admitted he had called Ediae “Ebola” once after Ediae called him a “Muslim terrorist.” He agreed that this was an offensive thing to say. He agreed that he was aware Ediae was from Africa, and stated, "just like he knows I am from Kosovo.” He claimed that he had worked there for five years so everyone in the plant knows he is from Kosovo. The applicant testified that there was no discussion about Ebola or Kosovo when they were in Narain’s office. They discussed how he and Ediae should stop making noise in the plant and they talked about working together.
14He testified that after this meeting, working alongside Ediae was better for about 10 days and then Ediae continued the same behaviour again. He testified that Kosovo is 100% Muslim and that Ediae would make comments about him being Muslim as he went back and forth between the saws and when they had arguments. He also continued to call him crazy.
15When asked why he thought Ediae behaved in this way, he responded that he thought Ediae did not like the colour of the applicant’s skin. He had observed Ediae working with someone who was Nigerian and all seemed to be good between them.
16The applicant testified about working with another employee, Vic Sandhu (“Sandhu”), who was a welder who worked about 5 metres away from his saw bench. He testified that every day as they punched in to work, Sandhu would say things to him such as “hey sexy guy, how are you?”, “hey gay guy, how are you?” He stated that this started mid-August, 2014. At other times, Sandhu would say to him, “hey how are your balls? Did you shave them today?” He stated that Sandhu would say these things in the presence of Garcia, Bill and Ron, other workers at the plant, and that he often said these comments as they gathered for meetings before each shift. The applicant testified that Sandhu would look him straight in the eye as he said these things. He was not directing it at others.
17The applicant testified that he confronted Sandhu about this saying to him, “you can say it as a joke to others but to me it is no longer funny. One day, two days you want to make a joke, but every day?” He testified that Sandhu responded, “I say what I want. You do not control me.”
18The applicant gave evidence that Sandhu said similar things to Garcia.
19When asked why he thought Sandhu treated him this way, the applicant stated that he thought Sandhu believed that because the applicant was just a temporary employee there was nothing he could do to Sandhu. Because of this Sandhu would say whatever comes to his mouth.
20The applicant gave evidence that during a morning meeting, he heard Mark Deryck (“Deryck”), a worker in the plant, tell Sandhu to stop saying these things as it was not nice.
21He testified that after he asked Sandhu to stop, he still continued, so he told McGarry about what Sandhu had been saying to him. McGarry told him that he would talk to Sandhu. The applicant stated that he was not sure if McGarry did talk to Sandhu but for two days after, there were no comments by Sandhu. After two or three days Sandhu started again talking about “sexy” and asking him “do you shave your legs?”
22The applicant testified that he went to McGarry again in September 2014. He told McGarry that he thought he should talk to human resources. McGarry told him that he would take control and that the applicant did not need to go to human resources. He told him again that he will talk to Sandhu. The applicant never went to the respondent’s human resources department about his experiences at work.
23In cross-examination, he disagreed when it was put to him that he was the one who had been talking about shaving his genitals.
24In January 2015, the applicant was told by McGarry that he was being moved back to the night shift. There is some overlap between the end of night and beginning of morning shifts. When he was starting a night shift, he would have to walk through the area where Sandhu was working to get to his bench. He stated that as he walked through, Sandhu would say, “Here comes the sexy guy”. He stated that after a while he would leave his saw when he saw Sandhu coming.
25The applicant testified that Sandhu’s comments continued until the day he was terminated in April 2015. He often made them when he came to the applicant’s cutting bench.
26Hearing these things from Sandhu was very annoying to him. He stated it was like bullying in school and he felt that there was not much he could do. He felt very disappointed that management did not do anything about it.
27The applicant testified that on April 6, 2015, he was called into an office by McGarry. He was told that the company made a decision and that they were letting him go. He asked McGarry the reasons and had he done something wrong. He stated that McGarry told him, “No they just made a decision.” The applicant asked McGarry, “how come Sandhu got to stay?” He testified that McGarry told him Sandhu is special. He testified that he asked McGarry what he meant by special and McGarry said he could not say anymore. McGarry then asked the applicant to leave the building.
28The applicant testified that, prior to termination, he was not provided with any written documentation about performance issues. No one had discussed any problems with his work or with his disruption of other workers. He stated that there was no problem and no inaccuracies with his work. He described how he would make the cuts and then put the cut pieces on the skid. Everyone had access to the skid.
29After he was a terminated, the applicant called the respondent’s employee Hotline. He said he spoke to “Rob” and told him about what had happened while he had been at work. Rob told him that he would investigate and call him back. He stated that Rob called him back three or four days later. He stated that Rob told him that they only deal with full-time people and as he was not full-time, they could not help him.
Ryan Garcia
30Ryan Garcia (“Garcia”) worked in the respondent’s welding department from July 2014 until June 2015. He worked the morning shift with Sandhu, Bill McKnight (“McKnight”) and Deryck and Ediae. He worked with the applicant until the applicant was returned to the night shift.
31Garcia testified that during the time he worked for the respondent, he worked very closely with Sandhu and that Sandhu was like his mentor and taught him many things about the work.
32He stated that he heard Sandhu repeatedly make fun of the applicant by calling him things such as, “gay, do you shave your balls?; your hair looks like pubic hair; if you shave it, it would look like my balls; maybe better for you put your underwear on your head; terrorist.” He stated that he heard Sandhu say to the applicant that he looks dumb and too handsome to work here and “a bunch of things that are so offensive.” He said that this started after he had been there a month or two and this became a daily routine. During the time that the applicant worked the same shift, Sandhu would say these things frequently at morning, lunch and before he goes home
33He stated that he heard Sandhu say these things numerous times when he was at the work station with Sandhu. When asked in cross-examination why he thought Sandhu would say these things to the applicant in front of him, he responded, “It would make Sandhu happier if someone would hear his comments against [the applicant]. This would somehow make it more gratifying for Sandhu.”
34He stated that he wanted McGarry to be aware of what was happening. Sometime in January or April 2015 he talked to McGarry about it. He told McGarry that Sandhu would say to the applicant, “hey gay, shave hair, your hair looks like pubic hair, and you are just a temp here, this is my area.”
35Garcia was asked whether he would be surprised to learn that the Application did not detail all the comments that Garcia says he heard Sandhu make and the applicant, in his testimony, had not said anything about Sandhu saying to him, “Did you shave your hair?” or “Put your underwear on face.” Garcia responded that he was not surprised “because you get numb because you hear it every day because there were lot of words being said all the time.”
36Garcia stated that he became aware about a meeting with McGarry, Sandhu and the applicant because he had asked Sandhu one day where he had gone. Sandhu told him it was about “stupid stuff.” Sandhu told him he had met with the plant manager and they talked to him about the things he said to the applicant. He explained that because Sandhu was his mentor and taught and trained him, they got comfortable and Sandhu would tell him a lot of stuff.
37Garcia testified that Sandhu also made similar comments to him. When he spoke to McGarry about the things Sandhu was saying to him, McGarry told him that he and Sandhu should go speak to the human resources department. When he spoke to Sandhu, he asked if they could put this behind them and hugged him. He thought Sandhu would be better after that but he was not.
38Garcia testified that he quit because of these things that Sandhu said. He stated, “It drains you to hear these things every day.” In cross-examination, he stated, he saw what Sandhu did to the applicant and it affected his decision to quit. At first he thought that it could just be because of the personalities of Sandhu and the applicant, but then he saw that it is Sandhu’s way of living. He witnessed how Sandhu bullied and harassed the applicant and him, and he came to the conclusion that he did not want to stay to witness this.
39A text message sent from Garcia to McGarry on September 8, 2015 was introduced into evidence. In this message, Garcia stated “I tried applying at massiv die form and luckily they want me to work with them… I prefer workin (sic) with you and love what I do there but cant (sic) work with Sandhu with what happened before.”
40When he was asked what he meant by “with what happened before”, he stated that he meant a lot of things that Sandhu did when he was working for the respondent and the last was shoving paper in his face. He testified in cross-examination that he had reported the paper in the face incident to McGarry.
41In cross-examination, respondent’s counsel suggested the he did not like Sandhu. In response to this, Garcia said, “No actually I love Sandhu. I love what he taught me there. I told him to stop what he was doing to us.” It was suggested by respondent’s counsel that saying he loved Sandhu is inconsistent with what he had said earlier that it drained him to hear the things Sandhu said. Garcia responded “He is a human being and he pushed me to leave, I had to hear these comments all day, what I am going to do stay? I want Sandhu to have a chance to change. I don’t want to say Sandhu not a good person and I did not do that.”
42He testified that he would hear Ediae and the applicant arguing and that sometimes he would peek at them and make sure they were not physically fighting.
Deidre Clarke
43Deidre Clarke (“Clarke”) has been the respondent’s Human Resources Manager for 12 years. She described her responsibilities as encompassing all employee human resource issues including recruitment, addressing performance issues, employee training and benefits administration.
44She testified that the respondent has 250 employees globally and 225 in Ontario. She described the employees as very diverse with over 40 different countries represented. She stated that she knew this because, as a result of this Application, she did a diversity study and asked employees about their ethnic background.
45She referred to the respondent’s Harassment and Discrimination Policy and stated that if an employee feels they are being harassed, they should ask the harasser to stop and then report to their manager, supervisor, any member of the open door process, or to her.
46She described the open door process as a group of employees that an employee can go to for help in resolving issues that they are experiencing at work. From there the issue can go to the Magna Employee Hotline which is an external group of investigators who can take their own steps and can overturn steps taken by the open door team.
47She testified that the applicant never made a complaint under the Harassment and Discrimination Policy, never used the open door policy and never went to the fairness committee.
48She stated that she knew that the applicant had contacted the Hotline after he was terminated because she had been contacted by Rob Eastwood (“Eastwood”). Eastwood had advised her that the applicant had complained to him about discrimination on the basis of sexual orientation and issues with respect to workplace problems between the applicant and Ediae around not sharing work, and not being given a locker.
49Clarke testified that it was her understanding that the complaint to the Hotline was fully investigated, and on April 30, 2015, she was told the Hotline would support Massiv. It was her understanding that Eastwood was to advise the applicant of the Hotline decision.
50Clarke gave evidence about the orientation that new employees are to receive. She did not conduct the applicant’s orientation. It was conducted by the human rights coordinator.
51During cross-examination, Clarke agreed that although the applicant had become a full-time employee following the expiration of his contract, he had not been advised of this, had not been enrolled in the employee benefits plan or the stock options.
52Clarke testified that she had prepared the termination letter. She stated that the applicant was dismissed due to performance-related issues and for no other reason. The decision to terminate had nothing to do with the applicant’s race, sexual orientation, or sex. Massiv did not discriminate on any grounds in making the decision. She and McGarry had discussed the ongoing errors in cuts made by the applicant and his refusal to take responsibility. She stated that McGarry had complaints from others about the applicant coming to workstations and interfering with their work. She stated that they received a number of complaints about the applicant over time. It was up to McGarry to make the decision about termination and that she and McGarry had met with the general manager on April 3, 2015 to discuss the decision.
53When she was asked why the letter of termination stated “current business conditions”, she stated that the applicant had asked that they not put laid off for performance so that he could collect Employment Insurance. She stated that they complied with the request, for compassionate reasons. She stated that this was also explained to Eastwood. She stated that they knew the applicant was not going to be a long-term employee but they did help by putting this reason in the letter and also gave him some help on ideas of other places to try employment.
54Clarke agreed that the applicant’s status had not been properly updated to full-time at the time he was terminated which is why the termination letter states he was a temporary employee.
55During cross-examination, Clarke agreed that the respondent has a progressive discipline process. However, she admitted that in the applicant’s case there were no written warnings. She stated that he had received counselling from McGarry, which is how Massiv tries to start to get employees’ performance back up, but the applicant was not performing and it was decided he was no longer needed at the organization.
56When she was asked in cross-examination why they allowed him to become full-time if there were performance issues, Clarke respond that Massiv always wanted to get him back to productivity as he had been a previous employee. They did transfer him back to afternoons in January 2015 but his performance was still an issue.
57When asked if Massiv had taken any steps with disciplining others in the fabrication department, she responded that McGarry decided to terminate the applicant as it was the best way to approach the situation.
Joseph McGarry
58McGarry testified that he had worked at Massiv for 20 years. He works as a supervisor. There are 142 employees who report to him, including 9 assistant supervisors. He works the day shift. He was the applicant’s supervisor at all material times.
59He explained that if an employee had a complaint he should go to his/her immediate supervisor or other supervisor or manager, right up to the general manager by following the open door policy at Massiv.
60He described the area where the applicant had worked, stating that there were two saw tables side by side at beginning of the fabrication shop and the fitters were in middle of the shop. Each fitter table had a welding screen. The distance between the applicant’s saw table and Sandhu’s fitter/welder table would be about 36 feet.
61He described the cutting process. Once a steel piece is cut, the saw operator is to handwrite on each piece and then highlight the completed cut on the cut list. He stated that the applicant used an orange highlighter.
62He stated that the applicant had come to him to get a key to get tools from another part of the plant away from the cutting benches when tools were locked away by Ediae. He stated that the applicant also complained that cut lists were being locked away. He stated that he investigated and found no evidence of this.
63He stated that he was not aware of the applicant’s race. The fact that the applicant was from Kosovo had never been discussed at work. He was not aware of the applicant’s sexual orientation. He denied that the applicant had ever complained about being called crazy; being told that the company property belonged to Ediae; or being called a terrorist.
64He stated that on September 22, 2014, Ediae came to him and told him that the applicant had been calling him “Ebola” and would not stop. He stated that he spoke to the applicant and he denied that he called Ediae “Ebola”. He thought that the applicant might have denied it because he was scared. When Ediae told him the applicant was continuing, he went to Narain, the plant manager, to see if he could help diffuse the situation.
65He testified that at this meeting which was held on September 24, 2014, they discussed the name calling “Ebola” and also the accusations by the applicant that the was denied access to the tools he needed when they were locked up by Ediae. He stated that he and Narain talked to both the applicant and Ediae. Narain explained that Ediae was senior and it was his responsibility to lock tools away. He stated that they had been able to diffuse the situation. The meeting ended with the applicant and Ediae shaking hands and they said they would get along. In cross-examination, he admitted that even though he felt the Ebola incident was serious enough to bring in the general manager, he had not issued any written warnings. He wrote the notes dated September 24, 2014 after the meeting.
66He testified that after this meeting the applicant did not raise any more complaints about Ediae.
67He testified that he had not heard anyone say anything to the applicant that was: sexual; about his race; about his hair; about his religion; where he is from; or about his sex orientation.
68He denied that the applicant had told him that Sandhu was bothering him by saying “hey there sexy guy”; calling him gay or by saying “hey gay guy”, “hey did you shave balls today?”, “shave legs today?”, “face looked like a girl’s”, or “did you have orgasm?”. He testified that he had not heard Sandhu say these things.
69In cross-examination, he admitted that he is a busy person at work and not always in the area where the applicant worked, so it is possible he had not been in the area to bear witness if these things had been said.
70He testified that the applicant never approached him to complain of harassment. When he was asked about telling the applicant that he would handle it and that the applicant should not go to human resources, McGarry stated that would not say he should not go to human resources.
71When McGarry was presented with an undated and unsigned type-written statement, he identified it as a note he made when he received the Application. He stated that he wanted to help refresh his memory and that he gave this note to the human resources manager.
72When he was asked what he meant by “shaves himself” in the typed note, he stated that this was brought to him by the welders. He testified that around January or February, 2015 all the fitters came to him to say that during the morning meeting, the applicant had made comments that he shaved his genitals.
73McGarry testified that he decided that maybe the applicant would be better on afternoon shift so he was moved him in January 2015. He testified that while on the afternoon shift, the applicant’s performance deteriorated.
74He testified after the applicant was moved to afternoons, those working on the day shift said that the applicant would interfere, stop them from working, and talk to them so they could not do their job.
75McGarry testified that Bill McKnight and Ron Moreira also brought complaints about the applicant’s inaccurate cutting; that details were not marked properly; pieces were not kept together on skids; and that the applicant did not want to cooperate with them.
76He stated that he spoke to the applicant about these concerns numerous times in February and March 2015 and told him he had to improve his accuracy. He stated that the applicant would not take ownership of his mistakes. He stated that he was satisfied that it was the applicant who was making the mistakes because he was familiar with the applicant’s handwriting and colour code. In cross-examination, he stated that it was highly unlikely that others could be interfering with the applicant’s work because there are short shift changes and lots of others in area who would have seen.
77He stated that he was really disappointed by the applicant because he had worked well in the past.
78McGarry admitted that he had not documented anything about the applicant’s performance. He stated that he is very busy. He felt he had done enough shop floor counselling with the applicant and he decided that he would have to let him go. He stated that he informed Clarke on April 3, 2015 of the applicant’s further mix-ups and the need to put a stop to it. He stated that Clarke advised him that they could end the applicant’s contract and give him one week’s pay in lieu of notice. In cross-examination, he stated that he had skipped the regular progressive discipline steps due to the seriousness and continued problems. He decided that termination was the best course to take.
79He stated that he had seen the termination letter before it was given to the applicant and that the applicant had been terminated for poor performance. He testified that the applicant had not asked him to put in the sentence “due to current business conditions” in the letter. He did not think the applicant asked anyone else to include this sentence.
80McGarry testified that on April 6, 2015, he had advised the applicant he was being terminated due to poor performance effective immediately. He testified that he had been quite clear with the applicant.
81He stated that he did not recall the applicant asking him why Sandhu got to stay. He denied saying that was because Sandhu was special.
82He testified that he walked the applicant out of the employees’ entrance and that as he left the applicant said, “I will get Sandhu” who he understood to mean, Vic Sandhu the welder/fitter.
83He knew Garcia from his work at Massiv. He stated that he understood that Garcia left Massiv because he got a full-time job elsewhere.
84McGarry was shown the text message sent to him by Garcia on September 8, 2015, and testified that Garcia had sent him texts throughout the summer. When he was asked what Garcia had meant when he said “I cant (sic) work with Sandhu with what happened before”, he stated that he had no idea what Garcia was talking about.
85He denied that Garcia had approached him to claim that Sandhu had been harassing him and the applicant. He denied that Garcia had told him that Sandhu had said comments to the applicant about being gay; “your hair looks like pubic hair”; “should put underwear on face”.
86He denied telling Garcia that he should go to human resources. He claimed that if Garcia had said anything to him he would have investigated.
Gyanendranauph Narain
87Gyanendranauph Narain has worked at Massiv for 22 years and has been the plant manager for the last 12 years. He did recall a meeting on September 24, 2014 with Ediae, the applicant, and McGarry. At this meeting, they discussed the applicant’s complaint that the tools and cut lists were hidden and that Ediae and the applicant were not working well together. Ediae told them that the applicant had called him “Ebola”. He testified that Sandhu’s name did not come up at this meeting.
88He stated that after this meeting the only thing he heard from McGarry about these two employees was the issue of poor performance by applicant. He stated that he relies on McGarry to take care of employee performance and relations.
89He testified that his office is about 250 feet from the fabrication area and ordinarily he walks through the plant twice a day.
Johnson Ediae
90Ediae testified that he is the senior saw operator in the fabrication department. The applicant was his co-worker as a saw operator.
91He described the saw process as cutting steel, putting cut pieces in a basket and moving them to the welding department. They would mark the cut pieces with a marker to identify every piece they cut. He stated the he has a yellow marker and the applicant used pink.
92He stated that before he went on vacation in August 2014, he and the applicant got along and when he came back it started to change, but he does not know what happened.
93He testified that he asked the applicant about the job and the applicant said, “do not talk to me you Ebola.” He testified that he asked the applicant not to call him Ebola. He told him he did not have the virus but the applicant would not stop so he had to go to his boss, McGarry, who said he would talk to the applicant.
94He stated that because of being called Ebola, he was isolated for three weeks. He stated that people were running away from him at that time.
95He testified that at the meeting in Narain’s office, the applicant complained that he did not have a locker. He told Narain that the applicant called him Ebola. He stated that the purpose of the meeting was to get him and the applicant to not make any trouble and to make peace between them. He thought that after the meeting, the applicant stopped calling him Ebola.
96He denies that he kept tools from the applicant. He claims that he gave the applicant the locker but the applicant said he did not want it. He believed this was a way for the applicant to make trouble for him. He testified that he never stopped the applicant from having access to anything. He denied telling the applicant not to touch tools. He denies calling the applicant crazy.
97When asked if he had called the applicant a terrorist he answered, “I do not know his religion.”
98When he was asked if he had ever heard Sandhu harassing the applicant, he answered that he works in a different department. He stated that he never heard Sandhu say anything sexual to the applicant, say anything about his religion or sexual orientation.
99He stated that he did not know anything about Sandhu saying to the applicant ‘you look like a girl”, “Hey gay guy?; “Shave your legs” or “sexy”.
100He testified that he did not know Garcia.
101When asked what it is like to work at Massiv, he stated that it is a good place, everyone is working together. They all move together as friends and family and can talk about everything. They can say anything to one another. He said they laugh a lot and that he has to laugh because it is hard job. He testified that harassment cannot be permitted and to laugh about race is against the rules at Massiv.
Vic Sandhu
102Sandhu testified that he has worked at Massiv for about 4.5 years as a welder in the fabrication department. He reports to McGarry and works the day shift. He worked with the applicant when the applicant was a saw cutter on the day shift.
103He testified that he gets along with everyone but towards the end of when the applicant worked at Massiv, he did not talk to the applicant at all. He stated that he found the applicant to be a troublemaker and he distances himself from troublemakers.
104He stated that just prior to the daily pre-shift meeting everyone from the fabrication area huddles together. They talk about different things such as what they did last night, sports events, kids, family or cars.
105During cross-examination, he said that he likes to joke around at work and everyone is like family. They like to keep a positive attitude and get the job done.
106He claimed that he is the best welder on the job and he just stays focused and does his work. He testified that everyone in the fabrication area takes breaks and lunch at the same time but that he only sits with and talks to Deryck during these breaks. He reaffirmed this in redirect examination.
107He testified that he was not aware of the applicant’s race or sexual orientation.
108He denied having ever called the applicant, “gay”; “look like, or face like a girl”; “your hair looks like pubic hair”; “did you have orgasm?”; “did you shave your legs?”; or “a terrorist”, or making any comments about his sexual orientation or his appearance. He denied making comments about the applicant being Muslim or saying that the welding department was his department and he could do what he wanted. He denied ever harassing the applicant.
109He denied that he knew the applicant was from Kosovo or that he had made a comment about it being a Muslim country. He testified that he never made any harassing comments and if he had, the supervisors would have known. He testified that it was the applicant who said things like, “I shaved my balls with a razor.”
110He claimed that he and the applicant did not have anything to talk about because what he did is separate from the applicant. Later, he stated that when the applicant first started, they would talk about day to day stuff.
111He stated that Garcia worked with him as a welder apprentice. He testified that he did not talk to Garcia about anything other than work. He helped Garcia and taught him how to do the work. He said he took him under his wing and let him use his tools every day. Later in his testimony he stated that he treated Garcia like a little brother and even helped him when his car broke down.
112He was shown the text messages between Garcia and McGarry and was asked what Garcia was talking about when said “cant (sic) work with Sandhu with what happened before”. Sandhu answered that he had no idea what Garcia was talking about.
113When he was asked why the applicant and Garcia would say that he harassed them and said these things, he said Garcia was a liar. He called the applicant a pathological liar who does not like him, and he does not know why the applicant does not like him. In cross-examination he again stated that Garcia and the applicant were liars.
Mark Deryck
114Mark Deryck has worked at Massiv as a welder in the fabrication department for about three years. He works the day shift.
115He testified that he never had an issue with the applicant. He stated that sometimes the applicant would clean up early when material needed to be cut and that he would sometimes find it hard to get material cut. In cross-examination, he testified he would not call the applicant a troublemaker.
116He stated that he was aware the applicant was from Kosovo. He knew this because everyone in the fabrication department had lunch together and they had talked about where the applicant was from and then generally what the country was about. He stated that everyone in the department gathered each day for the pre-shift meetings where they would learn about the work that needed to be done that day. He stated that he had not heard anyone saying anything harassing to the applicant before or during these meetings.
117He testified that he remembered one day when everyone from the fabrication department was together and they we were ready to meet McGarry. He recalled that someone had asked how he got his bald head so smooth and what razor he used. He recalled responding that by saying that his bald head was just like it would be if you shave your balls or something to that effect. He described this discussion as “shop talk” and said he was often the easy target for jokes because of his bald head.
118When he was asked what he meant by shop talk, he stated that it would be the latest jokes. He said they were joking all the time joke with others.
119He stated that he had not heard anything being said about the applicant’s race, religion, sexual orientation or being called a terrorist.
120He testified that he had not heard Sandhu say to the applicant, “Hey gay guy”; “Shave your balls today?”; or anything about having an orgasm or calling the applicant tall and sexy.
121He stated that he did not recall ever telling Sandhu to stop saying such things to the applicant.
122In cross-examination, he stated that the welder’s workstations have welding screens so in order to hear anything being said between the applicant and Sandhu, he would have to get up and move away from his welding desk.
123He stated that the welding stations are about 12-16 feet apart. He described the noise level as quite high and that some of the guys wear ear plugs but he does not.
124He testified that he was not aware of the respondent’s Harassment and Discrimination Policy.
William McKnight
125William McKnight has worked as a welder in the fabrication department at Massiv for a little over two years.
126He testified that he worked with the applicant and he got along well with him. He stated that in the in last few months that he worked with the applicant, the applicant would sometimes refuse to do work or say someone else had done a cut wrong. He described an incident when he had cut his hand which he said was because the applicant had not cleaned a piece of steel. He said the applicant had laughed at him when he showed him the cut.
127He spoke about the morning pre-shift meetings and stated that before the meeting started they would stand around and talk about whatever came to mind. He said he recalled one meeting when a comment was made about shaving balls. He thought it was the applicant who asked Deryck what razor he used to shave his head and that applicant had said he shaved his balls. He stated in direct examination and repeated in cross-examination that he was pretty sure he, Deryck and Sandhu told McGarry what they were all laughing about to let McGarry in on the joke. He described the shave you balls comment as a joke and it was not offensive.
128He testified that he never heard Sandhu say anything to the applicant before or during the morning meeting that was harassing. He had not heard him call the applicant “gay”, “have an orgasm?”, “sexy”, “terrorist”, “shave hair or hair looks like pubic hair” or anything about the applicant’s race or sexual orientation.
129McKnight testified that about 6-8 months before the date he was testifying, he had seen the applicant in a store and had asked him why he was bringing this Application. The applicant told him that for Ron [Moreira] it was personal and for McGarry it was spite. He said that he cursed at the applicant because he felt that the applicant was lying. In cross-examination, he admitted that he did not really know what the allegations were and later in redirect he said he thought the allegations were about sexual harassment and harassment.
130He testified that he would take lunch with all his co-workers and that included Deryck and Sandhu.
131He testified that he was not familiar with the respondent’s Harassment and Discrimination policy. He did not read it.
132He described the welding benches as big steel tables. The welders are blocked in by the three walls on a bench. Welding screens are pulled across the front when welding. The benches are about 5 feet apart. He stated that it is about 30 feet to the cutting tables from where he works. He would get pieces to weld off the skid. He might approach cutters for pieces about 4-5 times a shift.
Ronald Moreira
133Ronald Moreira (“Moreira”) has worked at Massiv for just over 14 years and has worked as an assistant supervisor for about 4 years. He works days and he reports to McGarry.
134He testified that he did not have many dealings with the applicant. At times he would be directed by McGarry to give the applicant a cut list. He stated that the applicant would say the Moreira was not his boss and would appear very reluctant to do the job. He stated that the applicant made it difficult for him. He said this happened 4-6 times.
135He denied having ever head Sandhu make statements to the applicant about his race, appearance, sexual orientation or religion.
136He did not attend the morning meetings or take breaks or lunch with those who worked in the fabrication area. His office is at the other end of the plant from the cutting and welding benches.
ANALYSIS
Scope of Application
137The respondent submits that the only allegations that the Tribunal can consider are those stated in the Application and in the applicant’s witness statements. It argued that the only allegations about Ediae’s behaviour that I could consider were the allegations made with respect to Ediae telling the applicant he could not touch tools and calling him crazy. They argued that since the Application only stated that Sandhu had said, “Gay” and “face like a girls”, these were the only allegations with respect to Sandhu’s behaviour that I could consider. It was submitted that I could not consider anything beyond these narrow allegations as the applicant had only expanded the scope and made new allegations during the course of his testimony and Garcia’s testimony.
138Although I did prevent the applicant from providing testimony on what I considered to be new allegations, I do not narrow the allegations to match the exact wording used in the Application and his witness statement. In section 8 of the Application it is stated, “Sandhu started calling me names like I was a gay person”. In his witness statement, the applicant stated that he would testify that Sandhu would make offensive and inappropriate comments about whether he shaved his genitals and other inappropriate statements about his sexual relations. When respondent’s counsel suggested the there was nothing in the Application about Sandhu saying, “hey gay guy” or about shaving balls even though the applicant said this would happen every day, the applicant responded that it was in the Application and pointed to where it was written, “calling me names like I was a gay person". The applicant further testified that he had told the person who helped him fill in the Application about being asked if he had shaved his balls and suggested that maybe person who typed up the form did not want to put it in.
139I do not agree with the respondent’s submissions. I find that the testimony of the applicant and Garcia fit within the scope of allegations that Ediae had told the applicant that he could not touch tools and had called him crazy. Further I find that their testimony about Sandhu’s behaviour fits with the allegation that Sandhu had called the applicant “names like [he] was a gay person” and “inappropriate comments about shaving and his sexual relations.”
140In addition, the respondent had the opportunity to cross-examine the applicant and Garcia. Counsel also had more than two months from when the applicant and Garcia gave their testimony to prepare the respondent’s own witnesses. The respondent did fully question the witnesses to allow them to respond to the allegations and the earlier testimony, so it was not prejudiced by allowing the scope of the Application to be broader than allegations stated in the Application
Applicant’s Evidentiary Burden
141The success of this Application rests on whether the applicant has proven, on a balance of probabilities that comments, as alleged, were made by both Ediae and Sandhu. It must then be determined that those comments amount to a breach of the Code.
142There is very little agreement on the facts. Certain of the respondent’s witnesses deny that the comments that the applicant alleges were made to him were made, while others say they did not hear such comments being made. There is some consistency in the evidence of the parties about the interactions between the applicant and Ediae and the fact that McGarry was aware of the interactions. The applicant and his witness say they reported to McGarry about the comments that Sandhu had made to the applicant. McGarry denies that he was told about this.
143There is very little documentary evidence of the relevant events. As a result, my finding in this Application depends largely on my assessment of the reliability and credibility of the applicant and various witnesses.
Credibility Considerations
144As was stated in Shah v. George Brown College, 2009 HRTO 920 (“Shaw”), at para. 12:
An assessment of credibility is not an exercise whereby the adjudicator simply listens to the oral testimony of witnesses, observes their demeanour while testifying, and decides who appears to be telling the truth. Assessing credibility involves the consideration of a variety of factors.
145In assessing credibility of the witnesses, I have applied the well-established and often cited principles stated in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at pages 356-357:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
146I further considered any corroborative evidence of the witnesses; the extent to which witnesses may have an interest in the outcome of the case, or have a self-interest in testifying for one of the parties; the state of the witness, such as candour or evasiveness and attitude towards the parties; and the failure to call a witness who has material and direct knowledge of the disputed facts. (Shaw at para. 14 and Briggs v. Durham Regional Police Services, 2015 HRTO 1712 at para. 150.)
Were the comments made to the Applicant?
147Although they may not have provided details of the exact dates and times of when these events occurred, the applicant and Garcia presented their evidence in a straightforward and candid manner. I found them to be credible and I accept, on a balance of probabilities, that what they have described as Ediae’s and Sandhu’s behaviours and comments towards them.
148It is evident from the testimony of the applicant and Ediae that their relationship was not supportive or cordial. Garcia testified that he often heard them arguing. The note that McGarry prepared when he received the Application mentions the tension between these two. McGarry’s handwritten notes about the September 24, 2014 meeting mention that the applicant complained about Ediae hiding cut lists and locking up tools and the difficulty the two were having in working together.
149I find that, on the preponderance of the evidence, the applicant’s testimony about the disputes between him and Ediae about tools and cut lists, and about the fact that Ediae called him crazy, is credible.
150The applicant’s evidence about Ediae remained unchanged through cross-examination. The fact that the applicant complained that Ediae was locking up tools and hiding cut lists was confirmed in McGarry’s testimony and in his notes about the meeting in Narain’s office in September 2014.
151I do not find Ediae to be credible when he denies that he kept tools from the applicant and that he never stopped the applicant from having access to anything. His evidence is inconsistent with the contemporaneous notes made by McGarry. The notes state that the hiding of tools was discussed. In addition, Ediae was not candid in his testimony. In direct examination, he often laughed before answering questions and at one point he looked at the applicant and said, “You are a funny man you make up these things.”
152There is insufficient evidence to support a finding that, on a balance of probabilities, Ediae had called the applicant “a Muslim terrorist”. The applicant had not mentioned this in his Application form or in his witness statement. As well, he only mentioned that he had been called this when he admitted, in cross-examination, that he did call Ediae “Ebola”. There was no other evidence to corroborate the applicant’s evidence that that Ediae had said this to him. I do not find that the applicant has demonstrated, on a balance of probabilities, that Ediae had called the applicant a Muslim terrorist.
153I also find the testimony of the applicant and Garcia about the comments Sandhu made to be credible.
154The applicant’s testimony about the comments made by Sandhu and the frequency of these comments was corroborated by Garcia’s testimony. Neither wavered from their direct testimony about Sandhu when they were cross-examined. Their testimony was also supported to some degree by the text message that Garcia sent to McGarry.
155The respondent challenged Garcia’s credibility by questioning how he could say he loved Sandhu after what he claimed he had heard Sandhu say. In my opinion, Garcia’s response to this question bolstered his credibility. Garcia responded that he loved Sandhu for what he taught him when he worked with him but after hearing these things all day, even after he asked Sandhu to stop, he had decided he could not stay. He had been pushed to leave the respondent’s workplace.
156In addition, I do not find it probable that the applicant would threaten to “get Vic” or would go so far as contacting employee Hotline to complain about the comments made about his sexual orientation if this had not in fact happened. Clarke testified that she had been told by Eastwood from the Hotline that the applicant had called to complain about discrimination on the basis of sexual orientation as well as the lack of cooperation by Ediae.
157I do not find Sandhu to be a reliable or credible witness. He was often confrontational while providing his testimony. In direct examination, he answered almost all questions about the applicant’s allegations and evidence with “no, that is a lie” or “no, he is a liar.” In direct examination and cross-examination, he called Garcia a liar and called the applicant a “pathological liar who does not like him.”
158In direct examination, cross-examination and redirect, Sandhu insisted that although everyone in the fabrication department takes breaks and lunch at the same time, he only sits and speaks to Deryck during these breaks. This is inconsistent with the evidence of Deryck and McKnight, who said that everyone in the department sat together at lunch. I find that given the small size of the group who work in the fabrication department, the number of years they have worked together, and the description of themselves as family, it is much more credible that they all eat together.
159Sandhu also denied that he knew the applicant was from Kosovo. Again, I do not find this to be credible given how long he had worked with the applicant as part of this small fabrication group. I find it is more probable that he would know where the applicant was from. Deryck testified that when the group had lunch together they had discussed where the applicant was from and generally what the country was about. In addition, it is obvious from the applicant’s accent and his fluency in English that English or French are not his first language. I find that it is not credible that Sandhu did not know the applicant was from Kosovo.
160I also find that his explanation about the applicant being a troublemaker weighs against a finding that Sandhu was reliable and credible. He testified that towards the end of working with the applicant, he did not talk to the applicant at all. He explained that he thought of the applicant as a troublemaker because that applicant had a problem with everyone he talked to and the applicant always had a problem doing the work he was assigned. He agreed that this was not documented anywhere by the respondent and when he was asked if he had personally witnessed this, he answered that no he had not.
Was McGarry Aware that Sandhu made these Comments to the Applicant?
161I do not find McGarry to be credible when he claimed that the applicant and Garcia had never complained about the comments that Sandhu was making to the applicant. The applicant was clear in his testimony that he had spoken to McGarry and the McGarry had told him he would speak to Sandhu. Although he did not witness McGarry speaking to Sandhu, he did recall that Sandhu had stopped making the comments for two or three days, which would suggest that McGarry had spoken to Sandhu.
162Garcia gave clear evidence that he had spoken to McGarry about the things Sandhu had been saying. He thought it was in January 2015. He was quite clear on where he was standing when he spoke to McGarry and how he had decided to speak to McGarry as he say him approaching on the shop floor. In direct and cross-examination, he testified that he remembers telling McGarry that Sandhu had been saying that the applicant is gay. He testified that he knows that McGarry spoke to Sandhu because one day when Sandhu was not at his bench and when Sandhu returned he asked him where he had gone. He stated that because Sandhu was his mentor and they worked so closely together, Sandhu was comfortable with him and would tell him things. He testified that on that day, Sandhu told him he had had a meeting about “stupid stuff” with the manager about the words he tells the applicant.
163Again I accept the evidence of the applicant and Garcia about reporting Sandhu’s comments as credible.
164The respondent submits that its witnesses should be found to be more credible in part based on the consistency of their evidence about the respondent not tolerating any harassment about sexual orientation or race. However, I do not find that the witnesses’ claim that the respondent does not tolerate harassment supports their credibility with respect to the evidence about whether the events alleged did occur.
165What emerges from the evidence is that those who worked in the respondent’s fabrication department are “like family”. It is also obvious that there is little formality, documentation or concern with policies that are in place at the respondent workplace.
166While it appears that the respondent has a Harassment and Discrimination Policy, the evidence demonstrates that employees in the fabrication department were not aware of this policy or had not read it. As a result, those who work in the fabrication department may not have a full understanding of what constitutes “harassment”. The witnesses’ evidence demonstrates that it is very likely that comments such as those made by Sandhu would be thought of a “just jokes”. It would appear that those who work in the fabrication department participate in the “shop talk”.
167Ediae and Deryck testified that those in the fabrication department can be open and say anything to one another. They like joking with and teasing one another. Ediae said he has a hard job; he has to laugh. Deryck described the comment about shaving balls as “just shop talk”. When asked what he thought the difference was between teasing and harassment he replied, “I know when things are offensive and I know what I can tolerate”. McKnight testified about letting McGarry in on the “shave your balls” joke.
168Deryck and McKnight both testified that they were not aware of the respondent’s Harassment and Discrimination Policy. There was much questioning of the applicant about the new employee orientation he received. The respondent attempted to challenge his credibility when he said he had not received orientation and their documents demonstrated he had. Clarke testified that the Harassment and Discrimination Policy is outlined in the Employee Handbook, which the applicant received. However, the documentary evidence demonstrates that she did not conduct the applicant’s new employee orientation. The person who had conducted the orientation was not called to give evidence about the extent of the orientation the applicant had received. The New Employee checklist indicates that the employee handbook was handed to the applicant on July 17, 2014. Beside the item, “Orientation” below which is the bullet, “…to discuss Employee Handbook in detail” is “NA” rather than a check mark.
169The Harassment and Discrimination Policy may exist, but the evidence demonstrates that employees in the fabrication department may not know about its existence and/or understand it.
170One might question whether it was possible for McGarry to have received these complaints since none of them were documented. However, what is clear from the evidence of McGarry and Clarke is that many of the processes that one might expect management or human resources to have documented were not documented by the respondent’s employees. McGarry admitted that he had not documented the errors he alleged the applicant had made even though he had considered them serious enough to warrant a termination of employment. He had not followed the steps outlined for the respondent’s progressive disciplinary process.
171Despite the fact that the New Employee checklist included “discuss benefits and Employee Handbook in detail”, this was marked “Not applicable” for the applicant. The respondent provided no documentation about the applicant’s Hotline complaint and investigation.
172Although the applicant had become a full-time employee, he had not been advised of this and had not been enrolled in the benefits that other full-time employees enjoy. He had been treated as a contract employee for calculation of the required termination notice and his termination letter described him as a temporary contract employee.
173The respondent’s witnesses who work in the fabrication department testified that they had not heard Sandhu say these things to the Applicant. I accept that it is possible that Deryck, McKnight and Ediae did not hear what Sandhu said to the applicant if they were at their work stations. The welders are blocked in by the three walls on a bench and welding screens are pulled across the front when they are welding. The welding stations are about 12-16 feet apart and the noise level is quite high. Both the applicant and Garcia stated that the comments were often made by Sandhu when Sandhu approached the applicant’s cutting bench or when the applicant approached Sandhu’s bench.
174However, I do not find it credible that those who worked in the fabrication department never heard Sandhu say the things that the applicant and Garcia describe. Given the close, family-like relationship of those who work in the fabrication department, the length of time they have worked together and the fact that they all still work together, it is most probable that these witnesses did not admit to hearing the things the applicant alleges, out of loyalty to each other and in order to protect Sandhu. Sandhu described himself as the best at what is done by the welders. He is a permanent employee and he was chosen to mentor Garcia. I accept the applicant’s position that Sandhu is a valued employee and management chose to take no disciplinary action when these complaints about him were being made.
175At times when these witnesses were providing their evidence, there were indications that the witnesses may have colluded on how they would present their evidence. The Application listed McGarry as a contact person for the respondent and the Tribunal sent the Application to him at the respondent plant’s address. At one point in his testimony, Sandhu stated that he had not known the applicant was from Kosovo until he saw it in the Application. He later stated that he learned about the applicant’s background and he saw the text message between McGarry and Garcia at the last hearing. When it was pointed out to him that he was not at the last hearing day he looked surprised and said he did not know where he had seen the text message and the applicant’s background had just come up in general conversation. Later in redirect examination, he agreed that he had been shown the text message by respondent’s counsel previously.
176Another indication that the witnesses may have colluded came from the testimony of McKnight, who was not included as one of the respondent’s intended witnesses until after the applicant had provided his testimony. He testified that he had seen the applicant in a store about 6-8 months prior to the time he was giving his testimony and that he had asked him why he was making this Application. He stated that he had learned about the Application from Garcia when they had worked together. He was not certain what the allegations were but he understood them to be about sexual harassment and harassment.
Finding
177Based on the totality of the evidence, I have concluded that Ediae and Sandhu acted and made the comments that the applicant and Garcia describe. Specifically, I find that Ediae barred the applicant from accessing the tools he needed, hid the cut lists and called him crazy. I find that Sandhu repeatedly said to the applicant, “hey sexy guy, how are you?”, “hey gay guy, how are you?”, “hey how are your balls? Did you shave them today?”, “your hair looks like pubic hair; if you shave it, it would look like my balls; maybe better for you put your underwear on your head”. I have also concluded that the applicant and Garcia had complained to McGarry about what Sandhu had been saying and that McGarry did not take the necessary action to address these concerns. He considered it to be shop talk and jokes, just like the others on the floor thought of it, and did not take any further steps to address this with Sandhu.
Do the Applicant’s Experiences Amount to a Breach of the Code?
Race
178The applicant indicated race and sexual orientation as the grounds claimed on the Application.
179As indicated above, I have accepted that Ediae did prevent the applicant from accessing tools and cut lists and made the work difficult for the applicant. However, I do not find that the evidence demonstrates that these actions were connected to the applicant’s race. The only allegation that the applicant made that could be found to be connected to his race is the allegation that Ediae called him a Muslim terrorist. As indicated earlier, I have found that there was not sufficient evidence to accept that Ediae had said this. As such, the allegations with respect to Ediae are dismissed.
Sexual Orientation
180Section 5(1) of the Code provides every person with the right to equal treatment without discrimination based on sexual orientation. Section 5(2) protects every person who is an employee from harassment in the workplace by the employer or agent of the employer or by another employee because of sexual orientation.
181The Code defines harassment as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”
182The applicant identifies as a “straight, white, male.” As a result, there may be some question of whether the applicant can bring this Application on the ground of sexual orientation or perceived sexual orientation.
183This issue was addressed by the Court of Appeal for British Columbia [“BCCA”] in School District No. 44 (North Vancouver) v. Jubran, 2005 BCCA 201 (“Jubran”). In Jubran, the Court stated at para 42,
It is common ground that a person who is perceived to have the characteristics of a person who falls within one of the enumerated grounds in s. 8 may be the object of discrimination although he does not actually have those characteristics.
184The majority of the Court in Jubran found that when determining discrimination, it is not necessary that the applicant actually have the characteristics of a person within a protected ground. What is relevant is the impact of the harassment and the fact that the harasser created an environment that denied the applicant of his dignity and right to equal participation in the workplace. The BCCA followed the Supreme Court of Canada’s reasoning in Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 (“O’Malley”) to emphasize the intent or motive do not play any role in the determination of violations of human rights legislation. (Jubran, above at para. 48)
Sexual Harassment
185Although, the facts and allegations of this Application could support a finding of harassment on the basis of sexual orientation, it is more appropriate for me to consider whether Sandhu’s conduct constitutes sexual harassment. Section 7(2) of the Code provides every employee with the right to be free from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by another employee.
186The comments made by Sandhu are clearly sexual in nature. The comments included references to the applicant’s sexual activity, appearance of his sexual anatomy, his sexual appearance and comparisons of other body parts to his sexual anatomy.
187The Supreme Court of Canada in Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 (“Janzen”), determined that sexual harassment is not confined to harassment of women by men. In the workplace, “Sexual harassment is any sexually-oriented practice that endangers an individual's continued employment, negatively affects his/her work performance, or undermines his/her sense of personal dignity.”(Jansen, above at pages 1280 and 1284)
188As was stated by this Tribunal in Smith v. Menzies Chrysler, 2009 HRTO 1936 (“Smith”) at para. 148, “sexual harassment law provides protection from the imposition of sexually inappropriate overtones and undercurrents in the workplace.”
189The comments made by Sandhu were a use of his power as an employee in a more favourable employment position than the applicant. The comments were meant to ridicule and embarrass the applicant. I find that such comments did undermine the applicant’s dignity. Sandhu’s conduct was a form of bullying that clearly falls within the Tribunal’s and Courts’ understanding of sexual harassment.
190It is also clear that the comments were vexatious. The applicant stated that Sandhu’s behaviour was very annoying and he described it as schoolyard bullying. The comments were known, or out to have been known, as unwelcome. I find that the applicant did tell Sandhu that although the comments may have been considered to be a joke by Sandhu and others, they were not accepted as a joke by the applicant and were unwelcome. I accept that the applicant asked him to stop making these comments. I also find that the applicant and Garcia complained to McGarry and therefore management of the respondent knew that the comments were unwelcome.
Poisoned Workplace
191Although I have found that, on a balance of probabilities, the applicant experienced sexual harassment while he was a respondent’s employee, I have made a further alternative finding that the harassment created a poisoned work environment for the applicant, which is also a breach of his Code rights.
192A workplace may become “poisoned” where the vexatious, unwelcomed comments pervade the atmosphere and psychology of the workplace. Where the harassment becomes a part of a person’s workplace it is accepted to have become a term or condition of employment. As stated in Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd. Inq.) at para. 76:
It is now beyond question that the atmosphere in which an employee must work is a condition of his or her employment, and should that atmosphere be oppressive or "poisoned" for a minority group, that circumstance might amount to discrimination on a prohibited basis. Management personnel who know, or ought to know, of that condition but permit it to continue thereby discriminate against the affected employees even if they are not themselves actively engaged in the production of that atmosphere. Where such discrimination is based upon a prohibited ground it is caught by the Code.
193Sexual harassment that contaminates the work environment becomes a discriminatory term or condition of employment contrary to both section 5(1) and 7(2) of the Code: see Smith, above, and Cugliari v. Telefficiency Corporation, 2006 HRTO 7.
194The evidence demonstrated that Sandhu’s comments and behaviour persisted throughout the applicant’s employment. I find that these comments and behaviour constitute sexual harassment and created a poisoned work environment for the applicant.
195The applicant admitted that he called Ediae “Ebola”. One may question whether this comment somewhat lessens the respondent’s responsibility to address the poisoned work environment. Tribunals must carefully consider allegations that the complainant also participated in the misconduct to determine whether the environment was a causal factor in the complainant’s alleged behaviour: see Smith v. Ontario (Human Rights Commission), 2005 CanLII 2811 (ON S.C.D.C.) and Naraine v. Ford Motor Company, [1996] O.H.R.B.I.D. No. 23; aff’d, 1999 CanLII 18727 (ON SCDC), 124 O.A.C. 39 (Ont. Div. Ct.); rev’d 2001 CanLII 21234; leave to appeal to S.C.C. refused, Docket 29073, Oct. 17, 2002. While the applicant may be culpable for his own use of inappropriate language, this does not excuse or nullify other’s discriminatory misconduct towards the applicant. Nor does it excuse the failure of the respondent to take steps to address the existence of a poisoned work environment. Regardless of whether anyone objects to, or everyone participates in, sexually charged behaviour, the employer has a duty to take steps to ensure the workplace is free from harassing comments or conduct; see Smith, above, and Naraine, above.
196The respondent’s management was responsible for ensuring that when employees are told that harassment is not tolerated in the workplace that staff are aware of what is meant by discriminatory and harassing behaviour. Management did not fulfill this responsibility. Management also failed to take the applicant’s concerns seriously or to properly investigate these concerns. This allowed Sandhu to continue to make the vexatious comments.
197The respondent breached its duty to provide the complainant with a workplace free of discrimination and harassment.
Reprisal
198The applicant did not allege reprisal in his Application. In closing remarks, the applicant submitted that it was unreasonable to accept that the applicant’s employment had been terminated for poor performance because the respondent had not documented the alleged incidents of poor performance; had not followed the progressive discipline process; and had indicated on the termination notice that he had been terminated “due to current business conditions.” The applicant submitted that he was fired because he had complained about the comments and behaviour of Sandhu and Ediae. If the applicant had proven, on a balance of probabilities, that this was the reason why he was fired, he would establish that he experienced discrimination on the ground of reprisal.
199The remarks amount to an effort to amend the Application after the evidence has concluded. This is inappropriate; however, I have considered the issue and I have concluded that the applicant did not experience reprisal.
200Section 8 of the Code states:
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 another person under this Act, without reprisal or threat of reprisal for so doing.
201Although the applicant may have been treated unfairly when McGarry decided to terminate him without going through the steps required by the respondent’s progressive discipline process and when he was still considered to be a temporary employee, I do not find that the applicant has provided sufficient evidence to establish that the firing was reprisal under the Code. (Noble v. York University, 2010 HRTO 878 at para. 31)
202The applicant testified that he went to McGarry to complain about Sandhu’s behaviour in August and September 2014. He complained about Ediae, which resulted in the meeting in Narain’s office in September 2014. The applicant’s employment was terminated in April 2015. McGarry’s testimony that he decided to terminate the applicant because of inaccuracies and the applicant’s refusal to take responsibility was consistent with Clarke’s and Narain’s testimony.
203I find that the timing of the last complaint the applicant made about Ediae or Sandhu is too remote from the timing of his termination for a finding that a reason for terminating he was his complaining or attempting to assert his Code rights. I do not find that he experienced reprisal. The respondent has established that the reason for the termination was his poor performance.
Remedy
204s. 45.2 provides the Tribunal with broad remedial powers. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code. (Ouwroulis v. New Locomotion, 2009 HRTO 335 at para. 4)
205I have found that the respondent breached the applicant’s right to employment that was free from discrimination and harassment contrary to sections 5(1) and 7(2) of the Code (poisoned work environment). Having made such a determination, I have found that it is appropriate to order the respondent to pay the applicant monetary compensation for injury to dignity, feelings and self-respect; and to take steps to promote compliance with the Code.
206Compensation for injury to dignity, feelings and self-respect includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization. As the Supreme Court stated in Janzen, above at page 1284:
When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it.
207The Divisional Court set out factors to consider when determining an appropriate amount of compensation which include: the applicant’s experiences of “humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the applicant; the vulnerability; and the seriousness and duration of the offensive treatment.” The Court emphasized that the amount should not be so low as to “trivialize the social importance of the Code by effectively creating a ‘licence fee’ to discriminate”. See ADGA Group Consultants Inc. v. Lane (2008), 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 (Div. Ct.) at para. 152-3.
208Recent Tribunal decisions that have considered sexual harassment and related issues in the context of employment have generally made awards for an applicant ranging from $12,000 to $150,000. See, for example, Chuvalo v. Toronto Police Services Board, 2010 HRTO 2037 ($12,000); Newton v. Toronto (City), 2010 HRTO 1023 ($15,000); S.S. v. Taylor, 2012 HRTO 1839 ($15,000); Chard v. Newton, 2007 HRTO 36 ($16,000); Payette v. Alarm Guard Security Service, 2011 HRTO 109 ($18,000); lu v. Markham Marble, 2012 HRTO 65 ($20,000); Hughes v. 1308581 Ontario, 2009 HRTO 341 ($25,000); Garofalo v. Cavalier Hair Stylists Shop Inc., 2013 HRTO 170 ($27,000); Sanford v. Koop, 2005 HRTO 53 ($35,000); Smith v. Menzies Chrysler, 2009 HRTO 1936 ($50,000 total); Manu v. Centum Fundamental Financial Inc., 2015 HRTO 725 ($17,000); J.D. v. The Ultimate Cut Unisex, 2014 HRTO 956 (three applicants - $40,000; $40,000, $25,000); and O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675) ($150,000).
209The Tribunal has generally made lower awards in Applications where there were few incidents, the incidents were of a less serious nature, and/or the incidents did not include physical touching. Applications that involve multiple incidents, incidents that were of a serious nature, where there was a serious physical assault or criminal conviction or there was a reprisal or a loss of employment related to the incidents have generally had higher damage awards.
210The harassment and discrimination that the applicant experienced was serious. The comments were degrading and humiliating and aggravated by the fact that it was repeated throughout the duration of his nine months of employment. This was further compounded by the fact that management did not address the situation when the applicant and Garcia complained. The applicant testified that the comments were very annoying. He described Sadhu’s behaviour as similar to having to endure the school bully. He was left with the feeling that there was nothing he could do to stop Sandhu’s behaviour. He was very disappointed with management.
211After considering the overall seriousness of the applicant’s experiences and the cases cited above, I find that $25,000 is an appropriate award of compensation for injury to dignity, feelings and self-respect. Pre-judgement interest, at the rate of 0.8%, pursuant to section 128 of the Courts of Justice Act (“CJA”), is payable on this amount from May 20, 2015, the date the Application was filed. Post-judgment interest, at a rate of 2%, pursuant to section 129 of the CJA, is payable after 30 days after the date of this decision.
Future Compliance
212Pursuant to s. 45.2 of the Code, the Tribunal has the power to make an order directing any party to an application to do anything that, in the opinion of the Tribunal, would promote compliance with the Code. Moreover, the Tribunal has the power to make such an order, regardless of whether the applicant has requested it (s.45.2(2)).
213As I have noted, it is clear that the employees in the respondent’s fabrication department do not know the Harassment and Discrimination Policy and that management may not fully understand their obligations under the Code. Training on rights and obligations under the Code would assist the respondent to ensure future compliance with the Code.
ORDER
214The Tribunal orders that:
Within 30 days of this decision, the respondent shall pay the applicant $25,000 as monetary compensation for injury to dignity, feelings and self-respect. Pre-judgement interest, at the rate of 0.8% pursuant to section 128 of the CJA, is payable on this amount from May 20, 2015, the date the Application was filed. Post-judgment interest, at a rate of 2% pursuant to section 129 of the CJA, is payable after 30 days after the date of this decision.
Within six months of this Order, the respondent is required to provide a human rights training program to the all employees, management and supervisors of its fabrication department. This program shall also include training on its own Harassment and Discrimination policy and internal complaint procedures.
Dated at Toronto, this 13th day of October, 2016.
“Signed by”
Laurie Letheren
Vice-chair