Un-Masking Discrimination: Employer Justified in Termination of 20-Year Employee for Discriminatory Comments Expressed in Objection to COVID-19 Mask Policy

An Alberta arbitrator recently upheld an employer’s disciplinary termination of a long-term employee in Alberta Federated Co-operatives Limited v. Miscellaneous Employees, Teamsters Local Union No. 987 of Alberta, 2022 CanLII 78226 (AB GAA).

The grievor, Aaron Evans, was an employee of Federated Co-operatives Limited (FCL) with 20 years of service. Evans worked in the shipping department at the company’s building solutions distribution center in Calgary.

In response to the COVID-19 pandemic, FCL introduced a number of health and safety measures, including a mandatory mask policy. As part of his role as temporary Chief Shop Steward, Evans attended a meeting with his superiors and was informed of the new policy, effectively immediately. At the meeting, Evans objected to the policy and expressed various ideological and ethnocentric views. In particular, he suggested that “masks were ‘an Asian thing’, that the wearing of masks was not a common practice in North America and that the mask mandate infringed upon his rights”. Following his supervisors attempts to redirect the conversion, Evans also stated, “’I am not a Muslim’ and added that he was ‘shocked’ to see people wearing masks in western civilizations”.

Following the meeting, Evans wrote, “I AM NOT A MUSLIM” in marker on his mask and wore it throughout the warehouse and employee lunchroom. During that time, Evans was seen and confronted by various co-workers and supervisors who alerted him to the fact that the mask was inappropriate. In the face of these comments - Evans did not remove the mask.

Evans’ conduct was reported and he was swiftly pulled in for interview, suspended and later terminated. Evans grieved his termination and sought reinstatement.

The Arbitrator held that Evans’ behavior was “a deliberate, intentional, defiant and offensive act of misconduct”. Evans expressed views that were discriminatory on the basis of protected characteristics under human rights laws and in violation of the employer’s Discrimination and Harassment Policy (D&H Policy), giving FCL reasonable and just cause to impose discipline. In the circumstances, termination was not excessive.

In arriving at this conclusion, the Arbitrator made the following notable findings:

• Mandatory mask policy was lawful. The Arbitrator stated that FCL had every right to implement a mask policy to protect its workforce against COVID-19 – this was undisputed.

• More than poor judgement. Evans’ behaviour could not be categorized as a moment of poor judgement or a one-off incident. The Arbitrator found that Evans expressed “a sincerely held point of view; one which was entirely at odds with the Employer’s D&H Policy, its Code of Conduct and its D&I program.”

• Adequate warnings. FCL adequately explained the health and safety rationale for the adoption of the mask policy to Evans and refuted his initial comments and objections. Even still, Evans was not dissuaded from expressing additional discriminatory views after he was redirected and corrected. Further, Evans continued to wear the mask even after having been cautioned and confronted by colleagues and superiors.

• Consideration of contextual factors. The Arbitrator considered the social context; the rise in hate crimes and acts of discrimination, harassment and violence against visible minorities, including those of Asian descent and those of the Muslim faith recorded during the COVID-19 pandemic. The Arbitrator also considered the importance of modern views of acceptable workplace conduct and the diversity of the employer’s workforce.

• Workplace policies and culture. Evans’ behaviour violated FCL’s policies, programs, initiatives and core values. FCL had worked to build a workplace culture that was free of discrimination and harassment. FCL had established and updated various workplace policies and initiatives reflecting their statutory obligations and values, including a Code of Conduct, a D&H Policy and a program which focused on diversity and inclusion as a company priority and subjected those in breach to corrective or disciplinary actions, up to and including termination. Evans had prior training and refreshers on these workplace policies. The D&H Policy in particular, had been in place throughout the entirety of Evans’s 20-year career.

TAKEAWAYS

As seen in this decision, well-implemented and established policies can later serve as the basis for justifiable disciplinary action. In Ontario, all employers are required to develop and maintain workplace violence and harassment policies and programs. Such policies should, among other things, include procedures for controlling, reporting and investigating incidents in the workplace.

Here, the employer’s proven and long-standing commitment to fostering an inclusive workplace, and the speed with which FCL addressed the unwanted behavior, were important factors supporting the employer’s decision to resort to termination for the discriminatory conduct.

While termination is often justified when employers identify a pattern of discriminatory conduct over a long period of time, such a pattern was not necessary here where a series of incidents over the course of the same day demonstrated that the employee deliberately chose not to heed warnings.

Racist and discriminatory comments often justify termination in labour arbitrations. However, employers must nonetheless consider the particular circumstances of each case and award discipline that is proportional to the conduct.

For more information, please contact:

Naomi Lewis   +1-416-863-2563

or any member of our Employment & Labour group.