GSB# 2019-0468

UNION# 2019-0378-0015

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Williams)

Union

• and –

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Richard Brown

Arbitrator

FOR THE UNION

Lauren Pearce Paliare Roland Rosenberg Rothstein LLP Counsel

FOR THE EMPLOYER

Adrienne Couto Liquor Control Board of Ontario Counsel

HEARING

September 22, 2020 (by Videoconference)

Decision

1Everton Williams is a long-service employee at the LCBO warehouse in Durham. Mr. Williams, who is black, filed a complaint about racially charged words spoken by Jason Horner, a white co-worker, in the presence of the grievor and two other white co-employees while the four of them were spending a night out together. After conducting an investigation, the employer concluded the offending comment was not work-related. Nonetheless, management issued a letter of counsel to Mr. Horner, warning him that off-duty conduct of a discriminatory nature has the potential to adversely affect the workplace and his relationships with fellow employees and urging him to be mindful of this in future. Viewing the employer’s response to his complaint as inadequate, Mr. Williams filed the instant grievance, contending the employer had failed to comply with its own discrimination policy and had violated both the collective agreement and the Human Rights Code.

2The union’s argument is twofold: (1) the incident in question was sufficiently work-related to engage the employer’s obligation under the Code to respond to racial discrimination; (2) and management’s response fell short of fulfilling its statutory duty. The employer contends this incident did not impair the grievor’s right to equal treatment with respect to employment. This argument is based entirely upon the circumstances in which the offending comment was made. The employer concedes the same comment, if made in the workplace would contravene the statutory right to equal treatment in employment. In the alternative, the employer submits, even if the Code does apply to the facts at hand, the way management responded was sufficient.

I

3The Durham facility is approximately 500,000 square feet in size and has a workforce of about 250 employees. The grievor operates a forklift in the warehouse. Mr. Horner is employed as a clerk in the office. When the incident giving rise to the grievance occurred, the grievor worked from 8:00 a.m. to 4:00 p.m., whereas Mr. Horner worked from 4:00 pm to midnight. Their only contact on the job occurred on occasions they passed one another as one was arriving the other leaving. The grievor described Mr. Horner as an acquaintance with whom he played poker once a year but with whom he had no other contact outside of work.

4The incident giving rise to the grievance occurred during a night out that began late on Saturday, January 26, 2019 and extended into the early morning hours of Sunday, January 27. At a poker tournament in Bowmanville, the grievor was joined by Terry Shriver and Trevor Shriver, two fellow employees who are brothers and whom the grievor described as friends. Mr. Horner also attended the tournament. At the end of the tournament, the grievor and Shriver brothers adjourned to a bar where they again met Mr. Horner. The four of them left the bar together in the grievor’s car with him at the wheel. Jason Horner was inebriated as perhaps were some of the others. Seated behind the grievor, Mr. Horner was loudly conversing with Terry Shriver who was in the front passenger seat. While describing an encounter he had on an earlier occasion with some black men, Mr. Horner made a racially charged comment. When challenged by Terry Shriver, Mr. Horner explained his comment was not meant to apply to the grievor. A few minutes later, Mr. Horner repeated the same offensive comment. The grievor told Mr. Horner to get out of the car and he did.

5On Friday, February 8, the grievor spoke to his operations manager about filing a complaint against Mr. Horner. The manager asked the grievor to put his complaint in writing. On Monday February 11, the he submitted a written complaint:

I Everton Williams on January 26, 2019 went to a poker tournament not LCBO related with work colleagues Terry Shriver, Trevor Shriver and Jason Horner.

On our way home I was driving Terry Schriver, Trevor Shriver, and Jason Horner to their homes. While I was driving, Horner was angry and having a verbal confrontation with Terry about something in the past and roughly about ten minutes into the conversation Horner said “Fucking Nigger”. Terry told Horner “What the fuck man”, as in why would you say that word. Then Horner turned to me and said” “Not You Everton”. A few minutes later Horner repeated the same word “Fucking Nigger” again. I now told Horner that he has to get out of my vehicle and proceeded to a safe area and let him out of the vehicle and continued to take Trevor and Terry to [their] homes.

My reasons for filing the complaint later was so that I could get proper advice as the incident was not on work premises.

6The employer promptly investigated the grievor’s complaint. The investigation was conducted by a panel of three: Beverly Jordan from human resources; Charles Edison, warehouse director; and Rob Belussi, acting operations manager.

7By letter dated February 12, Mr. Horner was told a complaint had been made against him for using “racially inappropriate language”, an investigation would be conducted and disciplinary action could be taken.

8When he met with the investigators on February 14, Mr. Horner described himself as “wasted” on the night in question. He recounted arguing with Terry Schriver about an event from a year ago involving a few black men. He reported describing these men as “niggas”, rather than “niggers”, saying he understood the former term to mean “homies” or “friends”. He also reported having black friends and family members. Mr. Horner said he had missed two days of work due to stress caused by the complaint and expressed concerned it might stand in the way of him being promoted. Jeremy Trainor attended this meeting as Mr. Horner’s union representative. At the beginning of the meeting and again at the end, Mr. Trainor said Mr. Horner would be filing a complaint against the grievor for reporting off-duty conduct to management.

9Terry Schriver and Trevor Schriver each provided a written statement as requested by the investigators. Both of them confirmed Mr. Horner had used the “N-word” while in the grievor’s vehicle. Trevor Schriver also confirmed Mr. Horner had been inebriated at the time. Trevor Schriver’s statement ends with the following passage: “Just one of the “too much to drink” nights that most people might have had that we brush under the carpet and forget about or so I thought.”

10On February 19, the grievor and his union representative, Damian Campbell met the investigators who posed a number of questions. Asked whether Mr. Horner used the word “nigger” or “nigga”, the grievor confirmed the words said were “fucking nigger”, adding he found both words to be offensive. He stated the incident in question was the first time he had heard such a comment from Mr. Horner, either inside or outside the workplace. Asked about his experience at work in the aftermath of the incident, the grievor replied the investigators should be asking whether he felt offended. The grievor added there had been no further incidents with Mr. Horner nor any discriminatory treatment by others in the workplace. Asked if he wanted to talk to Mr. Horner to clear the air, the grievor declined, saying he felt stressed. Asked what he would like to see happen as a result of the investigation, the grievor said it was for the employer to decide what to do.

11Mr. Horner filed a complaint against the grievor dated February 26, stating his complaint had nothing to do with the workplace and had created a poisonous work environment.

12By letter dated March 4, the employer informed Mr. Horner management had concluded the incident in question was not work-related, stating no further action would be taken. Nonetheless, the LCBO reminded Mr. Horner of its commitment to maintaining a work environment free of discrimination. Mr. Horner was reminded that off-duty conduct of a discriminatory nature would be considered work-related if it created a poisoned or hostile work environment. He was counselled to be mindful of the impact his off-duty conduct could have on the workplace and his relations with co-workers.

13Also by letter dated March 4, the grievor was informed the employer would be taking no further action because it had concluded the incident in question was not work-related. In this letter, management reiterated its commitment to maintaining a work environment free of discrimination and reported that Mr. Horner had been counselled to be mindful his off-duty conduct did not create a discriminatory work environment.

14The employer decided not to take any action based on Mr. Horner’s complaint because the grievor’s complaint had not been made vexatiously or in bad faith.

II

15Part I of the Code confers a right to equal treatment with respect to employment, and certain other specified walks of life, without discrimination because of race.

16Section 5 of the Code relates to employment:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race …

17Other sections in Part I create a right to equal treatment, without discrimination because of race, with respect to certain other defined spheres of life: the provision of services, goods and facilities (section 1); the provision of accommodation (sections 2 and 4); entering into contracts (section 3) and membership in vocational associations (section 6).

18It is important to note what the Code does not do. It does not create a universal right to equal treatment in all walks of life. The legislature in its wisdom decided not to attempt the herculean task of regulating all human interaction. There is no right to equal treatment in dealings between individuals outside the spheres regulated by the Code.

19Also found in Part I is section 9 stating:

No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

This prohibition against “indirectly” infringing the right to equal treatment requires an employer take action when it becomes aware of conduct by one employee towards another, which constitutes “discrimination with respect to employment.”

20The parties agree the Code requires an employer to take reasonable steps to address racial discrimination with respect to employment. In this regard, employer counsel cited Laskowska v Marineland of Canada Inc., 2005 HRTO 30; Communications, Energy and Paperworkers Union of Canada and Motor Coils Manufacturing Ltd., [2015] O.L.A.A. 263 (Manwaring); Toronto Community Housing Corp. (Security Group) v. Ontario Public Service Employees Union (Gordon Grievance) (2015), 253 L.A.C. (4th) 135 (Nairn); In the latter case, Arbitrator Nairn wrote:

The standard is one of reasonableness, not perfection, nor what may seem reasonable in hindsight. As noted in Marineland, supra, at paragraph 60, there may be several options, all reasonable, available to the employer to comply. Broadly speaking, in assessing reasonableness one looks to the employer's awareness of the issues, how it handles a complaint, and the nature of any resolution. The employer is not strictly liable for any harassment that occurs in the workplace. Having knowledge of harassment in the workplace, an employer is liable for a failure to respond appropriately. Reasonableness will invariably depend on an assessment of all of the circumstances. (paragraph 298)

III

21The employer does not contest Mr. William’s account of the exact words spoken twice by Mr. Horner. There can be no doubt these comments were racially discriminatory. The threshold issue is whether the circumstances in which the offending words were spoken support the employer’s conclusion that the incident in question was not work-related. Reframed using the language of the Human Rights Code, the question becomes: is this incident properly characterized as not being discrimination “with respect to employment” within the meaning of section 5(1) of the Code?

22The employer contends this question should be answered by reference to the arbitral jurisprudence relating to the type of off-duty conduct warranting a disciplinary response by management. In this regard, I was referred to the following passage from Brown and Beatty, Canadian Labour Arbitration, 5^th ed.

Arbitrators have always drawn a line between employees’ working and private lives. They often make the point that employers are not custodians of the characters or reputations of their employees. The basic rule is that an employer has no jurisdiction or authority over what employees do (including where they live), outside working hours, unless it can show that its legitimate business interests are affected in some way. As a result, in order for an employer to justify disciplining an employee for misconduct committed when he or she is not on duty, it must prove that the behaviour in question detrimentally affects its reputation, renders the employee unable to discharge his or her employment obligations properly, causes other employees to refuse to or be reluctant to work with that person, or inhibits the employer’s ability to efficiently manage and direct the production process. (7:3010)

23The union submits this line of authority is not well-suited to determining when the statutory right to equal treatment has been infringed. I agree. The cases reviewed in Brown and Beatty address the question of whether an employee’s off-duty conduct impinges on an employer’s private interests to a sufficient degree to allow management to impose discipline. The issue at hand is very different. Here the question is whether one employee’s off-duty conduct impinges on a co-worker’s right to equal treatment with respect to employment so as to oblige management to take corrective action. The factors relevant to answering the first question have little or no bearing on the answer to the second.

24The union urged me to adopt a broad and liberal interpretation of human rights legislation, following the lead of the Supreme Court of Canada in Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), 1996 CanLII 190 (SCC), [1996] 2 S.C.R. 3. In my view, adopting such an interpretive approach cannot avoid the requirement to distinguish between conduct falling within the spheres of human interaction regulated by the Human Rights Code and conduct not governed by the Code.

25The application of the statute requires a line to be drawn between discriminatory behavior with respect to employment and other types of discrimination. Not every incident of racially inappropriate off-duty conduct, involving a perpetrator and complainant with a common employer, infringes the statutory right to equal treatment with respect to employment. To benefit from the protection of the Code, a complainant must show more than the perpetrator has engaged in racial discrimination, because there is no universal statutory right to equal treatment without discrimination based on race. To invoke the Code, a complainant must show the impugned incident affected his or her employment.

26Consider two markedly difference scenarios. The first involves a complainant who hears indirectly about a generalized slur about his or her race, spoken outside the workplace, by someone who works for the same employer but has no on-the-job contact with the complainant. There is no Code violation in these circumstances, even though the complainant would have good cause to be offended, because his or her employment is not affected. Towards the other end of the spectrum, the right to equal treatment would be infringed if, while socializing off duty, an employee utters a racial insult to a co-worker with whom the perpetrator regularly has direct contact on the job. The offended co-worker would be adversely affected if required to interact regularly at work with a person whose discriminatory conduct has not been addressed by management. Management would be obliged to respond to the discriminatory conduct in the latter scenario but not in the former.

27Whether a racially inappropriate off-duty comment should be characterized as “with respect to employment” within the meaning of the Code depends upon a range of factors including:

• The nature of the offending comment including whether the remark was made to the complainant or about the complainant;

• The immediate circumstances of the offense including the offender’s degree of sobriety, whether other employees were present and, if so, whether those present indicated approval or disapproval of the offending comment;

• The extent of workplace contact between the complainant and offender

• The offender’s history of similar conduct; and

• The subsequent treatment of the complainant by the offender, any employees who heard the discriminatory comment and any additional employees who later became aware of it.

28The words spoken by Mr. Horner in the grievor’s car are abhorrent. Two co-workers heard these offensive remarks. On the other hand, both of these witnesses are friends of the grievor and one of them immediately expressed disapproval. Moreover, Mr. Horner was intoxicated, was conversing with Terry Schriver, rather than the grievor, and was not speaking about the grievor. At the relevant time, the two protagonists worked in separate parts of a large facility and on different shifts, crossing paths only occasionally as one was leaving and the other arriving. The employer was not aware of any history of Mr. Horner making similar comments. There were no subsequent incidents between the protagonists. Nor did the grievor experience any subsequent discriminatory treatment by other employees. At his interview when asked about the effect of the impugned comments on his experience at work, the grievor suggested what mattered was whether he felt “offended.” He said little or nothing about how his working life had been affected. When invited to meet Mr. Horner to clear the air, the grievor did mention feeling stress as his reason for declining. It is not clear whether this stress went beyond that arising from feeling offended by the comments themselves. The grievor said nothing more about the impact of these remarks on his life at work, either in his complaint or when interviewed.

29The management team investigating the grievor’s complaint, taking the above factors into account, concluded the incident was not work-related. In my view, their conclusion was correct. The discriminatory comments made by Mr. Horner, viewed in context, cannot be properly characterized as being “with respect to employment” within the meaning of the Code.

30During the hearing in this matter, Mr. Williams testified about waiting in the car park to avoid crossing paths with Mr. Horner and about feeling stress whenever he is at work. The employer cannot be faulted for not taking account of this evidence, because it was not provided by the grievor until after management had conducted a thorough investigation and reached a decision.

31The grievance is dismissed.