Discrimination on any of the grounds protected by human rights legislation is serious. The law in this area has developed so significantly over the last 20 years that it may be argued that if you’re not taking human rights seriously in your organization in 2013, you’re an anomaly. Most employers recognize the negative consequences that flow from an allegation of discrimination. The Ontario Court of Appeal recognized this in its recent decision General Motors of Canada Limited and Yohann Johnson 2013 ONCA 502 (CanLII) where, in the first few paragraphs Justice Cronk said:
An allegation of discriminatory treatment in the workplace due to racism is a serious claim that implicates the reputational and employment interests of the claimant, as well as those of the alleged perpetrators. It can also affect the dignity, self-worth and health of both the alleged victim and those accused of racist conduct. An allegation of this type can reverberate for many years after the incident or incidents in question, with potentially long-term consequences for all concerned.
No less serious are judicial findings of racially-motivated conduct in the workplace and a poisoned work environment due to racism. Judicial consideration of an allegation of constructive dismissal based on alleged racism in the workplace requires careful scrutiny of and balanced attention to all the evidence relating to the allegation in order to determine whether it is more likely than not that the alleged racism occurred.
Paras 4 – 5
The court set aside the trial judgment and dismissed an action against General Motors (“GM”) saying that the former employee who brought the claim against GM had suffered from stress and mental anguish out of perception. The court said that notwithstanding that perception, the evidence did not support the trial judge’s findings of racism and a work environment poisoned by racism. If you want to learn more, read on.
What happened at GM’s workplace?
Mr. Johnson (“Johnson”), a black man, was a GM employee for approximately 8 years at GM’s Oshawa assembly plant. The last six months of his employment was spent on medical leave, allegedly linked to a disability arising from discriminatory treatment in the workplace based on racism.
Johnson trained group leaders on a new system of policies and guidelines for its manufacturing system. Training was mandatory. One group leader (“Markov”) refused training. Johnson was told by another group leader (“Hayes”) that if an employee didn’t want to attend training all that was necessary was to claim the employee was “prejudiced like the last guy [Markov] whose brother was killed by a black man”. Mr. Johnson did not make any other inquiries about Hayes’ statement, but claimed he was shocked by it and brought it to GM’s attention.
- GM investigated and found no evidence of racially-motivated conduct. It did find that Hayes owed Johnson an apology; Hayes apologized and Johnson accepted. GM also ordered Markov to attend the training. Instead, Markov resigned as group leader and took a job as utility replacement representative, a position that did not require the training Johnson provided.
- Some weeks later, Johnson saw Markov performing group leader functions. He assumed that Markov’s position had been restored notwithstanding the resolution reached earlier and reported Markov’s actions. Markov was suspended for five days, but successfully grieved that suspension.
- Johnson, unhappy that Markov’s discipline was set aside, asked that his original complaint be re-investigated. It was and GM again concluded there was no evidence of racially motivated conduct.
- Johnson continued to be dissatisfied and pushed for another investigation. A third investigation also concluded there was no evidence of racially motivated conduct.
- Notwithstanding three investigations finding no racially motivated conduct constituting harassment, Johnson went on an approved medical leave, under the care of a psychiatrist, claiming disability arising from discriminatory treatment due to racism in the workplace.
Two years later, GM’s physician concluded Johnson was ready to return to work. Johnson advised GM he was unable to work in any plant environment where he might come into contact with Markov and that he could only return to work at GM’s Acceptance Corporation (“GMAC”), its training centre, or head office. GM told Johnson that GMAC was no longer owned by GM and that there were no other positions available at that time. Johnson was offered a supervisory role, similar to his previous position, in buildings one kilometre away from where he previously worked. GM also offered to adjust Johnson’s shifts and, possibly, his supervision. Johnson declined, claiming he was disabled from working in any GM plant.
Because Johnson did not provide current medical information to support his claim, GM wrote him to advise that since he was not providing that information, GM was concluding that he had resigned from his employment.
What did the trial judge say? GM had a poisoned work environment and Johnson was constructively dismissed
The trial judge awarded approximately $159,999.92 ($95,000 for wrongful dismissal damages, special damages of $40,000 and Wallace damages) deducting $15,000 for failure to mitigate saying:
- Markov’s excuse for not attending training was “solely racially based” and his version was “a cover up of his discriminatory behaviour”;
- GM’s conduct, and that of some of its employees, created a poisoned work environment;
- GM failed to conduct a serious or comprehensive investigation into Johnson’s racism complaint; and
- Johnson was constructively dismissed.
The Court of Appeal said GM met the “high hurdle for appellate reversal”
The Court of Appeal (“the Court”) concluded that GM met the “high hurdle for appellate reversal of the trial judge’s impugned finding of racism” and based on the Court’s review of the evidentiary record, the finding was unreasonable and unsupported. The Court said:
I therefore conclude, on this evidentiary record, that it was unreasonable for the trial judge to hold that Markov’s absence from his GMS training was ‘solely racially based’. With respect, there was simply no evidence to support this finding. Given the centrality of this flawed finding to the trial judge’s ruling on liability, this error is sufficient to decide the appeal.
When will a poisoned work environment amount to constructive dismissal?
The Court reminded readers that the plaintiff has the onus of establishing a claim of a poisoned workplace and that the test is an objective one saying:
…subjective feelings or even genuinely-held beliefs are insufficient to discharge this onus. There must be evidence that, to the objective reasonable bystander, would support the conclusion that a poisoned workplace environment has been created.
The Court said that, in constructive dismissal claims, a poisoned workplace is created when there is an egregious stand-alone incident, or persistent or repeated serious behaviour that creates a hostile or intolerable work environment. The Court said:
…As a matter of law, the offending conduct must be persistent and repeated unless the incident in question is sufficient, standing alone, to taint the entire workplace. That is not this case. …
…Johnson’s racism complaint arose from a single employee’s failure to attend a single training session. Such conduct falls short of the type of egregious behaviour manifested in those cases involving poisoned work environments. Johnson did not establish a systemic or institutional racist behaviour…a single incident of this kind, with a single employee, over the course of an eight-year working relationship cannot objectively ground a finding of a work environment poisoned by racism.
The return to work letter – bullying or reasonable?
The Court said the letter was reasonable. The trial judge had characterized GM’s return to work letter to Johnson as an attempt to “bully” Johnson into returning to “the environment in which his difficulties first arose”. This aspect of the trial judge’s decision did not sit well with the Court of Appeal who noted that Johnson had been offered work essentially the same as his previous work at two alternate manufacturing positions located outside the shop where he had experienced his difficulties with Markov and that Johnson did not have the right to dictate where he would work or the employment role he would assume on his return to work.
In a nutshell, the court said that the evidence did not support a conclusion that GM repudiated its employment contract with Johnson or that GM acted unreasonably in treating Johnson’s decision not to work as a voluntary resignation from his employment with GM.
What does this mean for employers?
An employer cannot have absolute control over personalities and feelings at the workplace. This does not mean that it should ignore the social realities of its workplace. Take steps to eliminate workplace harassment of any kind in your workplace by having an appropriate policy and train your employees on that policy. Monitor the workplace to make sure that inappropriate behaviour is caught and dealt with early. When a complaint is brought to your attention, take it seriously and investigate accordingly. Lastly, employers have the right to manage an employee who is absent from the workplace. This may include termination where the employee is not providing sufficient information to support a claim of workplace harassment and the employer has taken reasonable steps to return the employee to work.