2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
Employee’s Belief of Discrimination ≠ Actual Discrimination
In a recent decision of the Ontario Court of Appeal, General Motors of Canada Limited v. Johnson, 2013 ONCA 502, it was confirmed that an employee’s honest belief that they are being discriminated against is not, in and of itself, a sufficient basis on which to find workplace harassment and discrimination.
Johnson, a manager at GM, alleged that he was subjected to racism which was condoned by GM and resulted in a poisoned work environment. Specifically, Johnson alleged that he was discriminated against when another employee refused to attend a training session led by Johnson. Johnson reported the alleged racism to GM, who conducted an investigation into the matter. During the investigation, the employee revealed that he had refused to attend the training session because of his dislike of Johnson which stemmed from a workplace incident that had occurred years earlier. The investigator concluded that there was no evidence of racially-motivated conduct.
Nevertheless, the employee was demoted from his position as supervisor. A few weeks later, Johnson reported to GM that he observed the employee performing supervisory duties, contrary to his demotion. The employee was suspended for 5 days. The employee grieved the suspension and was successful in having it removed.
Following the grievance arbitration, Johnson made another complaint that the employee was racist toward him. GM investigated and concluded there was no evidence of racism. Johnson was dissatisfied with the outcome of the investigation. Shortly thereafter he commenced a two-year medical leave of absence. When he was medically cleared to return to work, GM offered him a choice of two positions that had similar responsibilities to his previous role as manager. Johnson refused both positions because of the possibility that he might come into contact with the employee. GM concluded that, by refusing the two positions, Johnson had resigned. Johnson sued, alleging constructive dismissal.
The trial judge held that the employee’s refusal to attend the training session was motivated by racism. The trial judge also concluded that GM:
- failed to take Johnson’s complaints seriously;
- failed to enforce the employee’s demotion; and
- was instrumental in the employee’s suspension being removed.
The trial judge held that all of the above resulted in a poisoned work environment and, consequently, Johnson’s constructive dismissal.
Court of Appeal:
The Court overturned the trial judge’s decision. It concluded that there was no basis in evidence on which to conclude that the employee’s refusal to attend the training session was motivated by racism. The Court of Appeal also concluded that the evidence did not support a finding of constructive dismissal as the allegation stemmed from a single event – the failure of the employee to attend the training session. The alleged offending conduct did not constitute a poisoned work environment because it was not persistent and repeated nor was it sufficient, in and of itself, to taint the workplace.
What This Means for Employers
An allegation of discrimination and/or harassment is very serious and ought to be treated as such. An allegation of discrimination and/or harassment can have long-standing repercussions for both the complainant and the alleged perpetrator. Allegations of discrimination and/or harassment should therefore be properly and thoroughly investigated. The investigation requires careful scrutiny of and balanced attention to all evidence relating to the allegation. An employee’s subjective belief of workplace discrimination and/or harassment is not a sufficient basis on which to conclude there has been any wrong-doing. A finding of discrimination and/or harassment needs to be supported by objective evidence of misconduct.