Canadian Employment Law Today

CELT July 24 2013:celt 467.qxd 13-07-09 2:45 PM Page 9 CANADIAN EMPLOYMENT LAW TODAY Employee raised human rights issues, employer did nothing ...continued from page 3 email sent by a manager that said the installation crews were negative, unprofessional, had no dress code, lacked responsibility and "looked like they were picked up at the corner of Sherbourne and Queen." Morgan felt the email had racial undertones because the installation team were all black men and he believed the area referred to had many homeless black men. He showed the email to the owner of the installation company, who was upset and said he would raise the issue with the president of the company. On Feb. 27, 2010, Morgan returned to the office from working at a project site and found his co-workers having a potluck lunch. He was feeling tired due to an extra workload resulting from an account manager on vacation. The HR manager yelled at Morgan from across the room, asking him where he'd been and someone was looking for him. Morgan felt embarrassed and humiliated. The HR manager later met with him to apologize and Morgan told her he believed he was being unfairly assigned menial tasks because he was black. He also mentioned several concerns about the president and his management style. On March 30, 2010, Morgan was called into a meeting where he was told he was being terminated for spreading misinfor- ASK AN EXPERT ...continued from page 2 management. CELT For more information see: ■Mackenzie v. Jace Holdings Ltd., 2012 CarswellBC 3320 (B.C. Human Rights Trib.). ■ Canada Safeway and UFCW, Local 401 (1992), 26 LAC (4th) 409 (B.C. Arb.). Tim Mitchell is a partner with Norton Rose in Calgary. He can be reached at (403) 233-0050 or Tim.Mitchell@nortonrose.com. mation amongst his co-workers about Herman Miller's financial situation and that the company was considering selling its dealerships. His termination letter also said it was clear he was "profoundly unhappy" at the company and he had expressed "your lack of confidence in Herman Miller's work team leaders and executives." The letter also mentioned Morgan's continued dispute of his 2008 discipline for disclosing confidential information. Morgan was surprised at the reason for termination, as he had not been approached by anyone regarding conversations he had had about the ongoing financial feasibility of the company. He was also aware that many employees were discussing the rumours. Morgan filed a complaint accusing Herman Miller of discrimination based on his race and alleging he was dismissed as a reprisal for complaining about his mistreatment. Not all complaints valid, but there was discrimination Firstly, the Ontario Human Rights Tribunal found there was no evidence Morgan was asked to do extra work because of his race. His job was new and evolving and other male employees were asked to do heavy lifting as well. Morgan was considered an asset and the duties he was assigned were "an effort to maximize his contributions to the company" and not related to his race, said the tribunal. In addition, the irregular hours were described in the job advertisement when Morgan applied. The tribunal also found that although Morgan viewed the breach of confidentiality a minor incident, the company considered it serious and the discipline — a six-month probation — was proportionate and not related to Morgan's race. Additionally, the email was not racially motivated as Herman Miller was able to show it was simply repeating the comments of a client and the area referred to was not necessarily predominantly black — Morgan just perceived it to be so. However, despite these incidents not being racially motivated, the tribunal found Morgan was subjected to unfair treatment when Herman Miller failed to investigate his allegations of discrimination and harassment, which came out of a genuine belief that Morgan was being subjected to differential treatment because he was black. The tribunal also found Morgan's dismissal was a reprisal for making the allegations. "It was clear (Morgan) was raising human rights issues," said the tribunal. "There was not even a follow-up with (Morgan) to clarify the nature of his complaints. Instead there was a complete inaction from the employer." The tribunal noted Herman Miller argued Morgan had been on a list of employees being considered for termination for financial reasons before his complaint, but not all of the employees were fired. The decision to terminate Morgan was made shortly after his complaint for suspect reasons — spreading rumours that Morgan didn't start and other employees had participated in and being "profoundly unhappy," an acknowledgment of his allegations. The tribunal also noted the breach of confidentiality was several months earlier and not a factor. Herman Miller was ordered to pay Morgan 14 months' wages — $55,799.70 — for wrongful dismissal and $15,000 for injury to dignity, feelings and selfrespect, for a total award of $70,799.70. the former president of Workplace Resource, who was no longer with the company, was ordered to complete an online learning module provided by the Ontario Human Rights Commission. CELT For more information see: ■Morgan v. Herman Miller Canada Inc., 2013 HRTO 650 (Ont. Human Rights Trib.). MORE CASES To view more cases from Canadian Employment Law Today's archives, go to www.employmentlawtoday.com and click on "Advanced Search," where you can search for articles by keywords or department. Published by Canadian HR Reporter, a Thomson Reuters business 2013 9

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