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Queen's University
 

Aldeen Morgan and Herman Miller Canada Inc and Corrado Fermo 2013 HRTO 650

Facts

This case involves a disgruntled employee at Herman Miller Canada Inc, a company that designed and installed furniture. He was hired in July 2007, put on probation in 2008 and fired on March 2010.

Probationary Incident

Morgan was put on probation in 2008 for disclosing confidential information to an installation company contracted by the employer.  He maintains that the transgression was minor and the discipline disproportionately serious and discriminatory on the basis of race.  Following the probationary incident, Morgan’s manager excluded the applicant from confidential discussions. The applicant felt ignored by his manager. He perceived this as discriminatory conduct.

Email Incident

In the winter of 2008, the applicant saw an email that referred to the installation team as so unprofessional that they appeared to be recruited from the “corner of Queen and Sherbourne” (para 44). The applicant believed that this was a racist comment, because, for him, the corner of Queen and Sherbourne was heavily populated by impoverished black persons. He complained to his manager about the racist connotation of the email. The manager told him that there were no racial overtones to the email and then delegated the issue.  The applicant alleges that the email and the handling of the email are racist.

The Potluck Incident

In February of 2010, the employer held a pot-luck lunch for the employees. When the applicant arrived, a manager (Ms. Robertson) shouted across the room, asking him where he had been and that someone had been looking for him.  The applicant, who had already handled the issue, felt humiliated. He complained to his supervisor (Ms Ingham) and the next day Ms Robertson apologized for yelling. The two had a conversation about the applicant’s unhappiness at work; Ms. Robertson disagrees with the applicant who contends that he raised issues of discrimination at this time.  The applicant raised the same issues with the Director of Sales (Beth Johnson), who emailed Mr. Ferno with a summary of the applicant’s concerns, including his allegations of discrimination on the basis of race.   Mr. Ferno then notified Ms. Robertson of the human rights issues at play and forwarded the email to her.   Ms Robertson forwarded the email to colleagues in the states asking for advice.  None was received.

The termination

A month after this incident, the applicant was terminated.  None of the persons to whom he had complained (Ms Robertson, Ms. Ingham, Ms Johnson) got back to him about his complaints. Nor had Mr. Ferno contacted the applicant to discuss his claims of discrimination in the workplace.  His termination letter claimed just cause, and listed the following reasons:  the 2008 breach of confidence, gossip about imminent closure of dealerships, as well as disclosure of being unhappy at work and with management. (para 53).

Legal Principa

Issues

1)     Was the probationary incident discriminatory?

2)     Was the email incident discriminatory?

3)     Was the shouting incident discriminatory?

4)     Was the employee fired for just cause?

5)     Was the employer discriminated against or harassed on the basis of race at work?

6)     Was the employee fired for complaining about harassment and discrimination?

7)     Did the employer investigate the complaints?  

8)     Should the employee be awarded damages?  

Legal Elements and Principles (paras 86-87)

“In the decision of Noble v York University, 2010 HRTO 979, the Tribunal describes the legal elements of establishing a claim of reprisal under the Code at paragraph 3 and 4:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

  1. An action taken against, or threat made to, the complainant
  2. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
  3. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right

In addition, the following principles are relevant;

  1. There is no strict requirement that the complainant has filed a complaint or application under the Code, and
  2. There is no requirement that the Tribunal fin the respondent did in fact violate the complainant’s substantive right to be free from discrimination.
  3. Further, the Tribunal has found that an applicant need not prove that discrimination has occurred to benefit from the protection of s 8 of the Code. However, the applicant must have a genuinely held belief that the respondents were infringing this Code rights.

 

 

Issues

1)     Did the applicant claim or enforce a right under the Code?

2)     Did the employer discriminate against the applicant prior to the termination?

3)     Was the applicant terminated for just cause?

Decisions

1)     Yes

2)     No

3)     No

Reasons

1)     “Based on the evidence that I heard. I find that the applicant genuinely believed that he was subjected to differential treatment because of his colour, which included being targeted to perform a number of tasks and that he was being ignored by Mr. Ferno.” (para 91). While the respondents contended that no manager with supervisory responsibilities for the applicant heard any race-related complaint from the applicant’s lips, the Tribunal determined that any member of management who is informed of a human rights issue triggers the employer’s duty to investigate.  The employer failed to uphold this duty.  The most important piece of evidence was Beth Johnson’s email, which explicitly outlined the applicant’s complaint of discrimination on the basis of race and demonstrates that its author and recipients (Beth Johnson, Mr. Ferno and Ms. Robertson ) were aware of the allegations.    

2)     The applicant alleged that the employer engaged in three acts of discrimination: the disciplinary incident, the email incident and the inaction of the employer following the shouting incident.  The tribunal found that the discipline was not disproportionately severe and discriminatory on the basis of race; that in fact the applicant had failed to recognize the seriousness of the breach of confidentiality.  (para 32). It also determined that the email was a summary of a client’s views, not a representation of the employer’s views. Furthermore, the applicant failed to present any evidence supporting his claim that the email referred to impoverished black people. Finally, the tribunal ruled that the employer failed to do anything upon becoming aware of the applicant’s complaint. The Tribunal called this inaction an “organizational failure” (para 97)

3)     The Tribunal determined that the applicant was not terminated for just cause. It found…

  1. That the applicant did not start rumours he was accused of spreading in the termination letter.  The key evidence was the fact that the employer did not bring this issue to the attention of the applicant, ask him for his side of the story, or ask him to desist.  Para 105. It ruled that the managers failed to keep detailed notes about their conversations with the applicant, despite direction from Mr Ferro. (para 106). 
  2. “[…] the respondents terminated the applicant’s employment because he raised issues of harassment and discrimination and because he had threatened to “sue” the company in this regard. With respect to Mr. Ferno’s liability, I find that since he testified that he made the decision to terminate the applicant’s employment, that he also committed an act of reprisal.
  3. That the applicant’s” unhappiness at work  “was a direct result of the fact that he perceived that he was being treated in a discriminatory manner because of his colour” para 108
  4. That the remaining reasons for termination were “pre-textual””A significant period of time had passed since the confidentiality incident and in my view the issue was largely “state dated” by the time of the applicant’s termination. Further, the applicant was not even disciplined by Ms. Ingham at the time of the comments in relation to her but he was “cautioned” (108).

Remedies

Herman Miller Inc

1)     $55,799.70 in lost wages

2)     $15,000 for injury to dignity, feelings and self-respect

3)     Pre-judgement Interest

4)     Post-judgement interest

5)     “within 120 days from the date of this Decision, Herman Miller Canada Inc. shall confirm to the applicant in writing that it has retained a human rights expert of its choosing who has

  1. Assisted with the review and revision of its human rights policies, and that a copy of the revised human rights policy has been distributed to all its employees; and
  2. Trained all of its Ontario employees holding the rank of manager or higher, and any human resources employees with respect to the revised human rights policy, the Code and how to adequately respond to allegations of harassment and discrimination.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000