Canadian Employment Law Today

CELT Sept 4 2013:celt 467.qxd 13-09-13 10:59 AM Page 7 CANADIAN EMPLOYMENT LAW TODAY $160,000 discrimination award overturned No evidence to support finding that GM didn't sufficiently investigate employee's complaint of racism: Ontario Court of Appeal | BY JEFFREY R. SMITH | THE ONTARIO Court of Appeal has overturned a lower court's finding that an Ontario worker was subjected to racial discrimination at his work. Yohann Johnson began working in the Oshawa, Ont., body shop of General Motors of Canada (GM), as a production supervisor in HUMAN September 1997. For most of his tenure at GM, Johnson – who was black – had no problems. In early 2005, Johnson took over responsibility for training group leaders on a new system of policies and guidelines relating to the company's global manufacturing system (GMS). Many unionized employees didn't like the training and sometimes skipped their scheduled sessions. On June 28, 2005, Johnson was scheduled to train a group leader named Alex Markov, but Markov failed to show up for the session. Markov's supervisor later told Johnson that Markov refused to take the training with him because of an incident several years earlier when Johnson had laughed at a remark by another employee about the death of Markov's brother, who had been murdered. Markov later agreed to train with another GM employee, who was also a person of colour. The next day, Johnson trained another group leader who told him that he had learned that if he didn't want to train on the GMS, all he had to do was claim he was "prejudiced like the last guy whose brother was killed by a black man." Johnson was shocked by the statement and asked another employee about it. The employee told Johnson he had heard from others that Markov's brother had been killed by a black man, though he didn't reveal any specific source. Employee suspected racism Johnson assumed Markov had refused to undergo training with him because he was black, so he complained to the plant area manager about racism. He repeated his complaint to other members of management. GM undertook three separate investigations into the matter, and all three concluded there was no evidence of racism in Markov's actions. After the first investiRIGHTS gation, the employee who had made the statement about getting out of training was asked to apologize and Johnson accepted the apology. Markov was ordered to take the GMS training with Johnson but reached an agreement to avoid it by resigning as a group leader. Johnson accepted this as a resolution of his complaint. About a month later, in July 2005, Johnson saw Markov working as a group leader. He assumed Markov had been restored to the position and complained. After a meeting and a disciplinary hearing, Markov was suspended for five days for failing to take GMS training with Johnson. Johnson accepted this as a resolution of the matter. However, Markov appealed and his suspension was rescinded. It turned out he had been filling in for an absent group leader and had not been returned to the position full-time. This didn't violate the complaint resolution, he argued. Johnson complained to the plant's personnel director and asked for another investigation. After interviewing several employees including Johnson, the personnel director reached the same conclusion as the earlier investigation: no evidence of racism by Markov. Still unhappy, Johnson went to the assistant plant manager, who offered on his own to investigate the matter for a third time with GM's labour relations and human rights representative. Markov was interviewed and he added to his earlier account by saying after Johnson had laughed at the co-worker's insensitive remark about his brother years earlier, the two had tracked him down again the same day and repeated the remark. The investigation determined that Markov had perceived the remark as a threat and he was still upset by it. Markov's perception of that incident, regardless of whether it actually happened, led to his refusal, not racism, the investigation concluded. Employee went on medical leave Johnson continued to feel upset about the results of the investigations and, after a co-worker allegedly told him Markov had threatened to harm him, began to feel the body shop was a poisoned work environment. He went on medical leave, claiming disability arising from discrimination due to racism in the workplace. After two years, Johnson was declared fit to return to work, but Johnson said he was unable to work in any plant environment where he could meet up with Markov or the other employee involved in the original incident. GM said there were no training positions available and offered him a supervisory position in two other GM facilities nearby, but Johnson refused, saying he was disabled from working in any GM plant. No medical information was supplied to support his claim. He never returned to work with GM. Johnson then sued GM for breach of the employment contract and discrimination. The trial judge found GM was liable for constructive dismissal, due to the fact Markov's reason for skipping his training was "solely racially-based" and his account of the earlier incident regarding comments about his brother was an attempt to justify his behaviour. The trial judge also found GM and some of its employees created a poisoned Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 11 7

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