Former Employee Awarded $24,000 for Discrimination in the Workplace

Written on behalf of Peter McSherry

The Human Rights Tribunal of Ontario (HRTO) recently awarded $24,200 to a former employee who was subjected to anti-Semitic slurs in the workplace and dismissed in a discriminatory fashion.

The Background

The employee in question (the applicant) alleged that he was subjected to anti-Semitic slurs, and that his Jewish ancestry and creed were factors in his termination. He additionally claimed that he was subject to reprisal when he sought to claim and enforce his rights under the Code.

The applicant, a college student, was hired as a part-time delivery driver for Stackhouse Pizza and Sub Co. (Stackhouse) in September 2014, reporting to the supervisor and head driver (R.B.). R.B reported to the personal respondent, who was the sole shareholder and director of Stackhouse. The applicant and R.B. had a difficult working relationship.

The personal respondent first began working at Stackhouse in April 2014. He took over the business from the owners in November 2014, incorporating it, and operating as sole shareholder and director.

The rather convoluted incidents leading to the applicant’s human rights complaint occurred in January 2015.

The Applicant’s Version of the January Incidents

On January 10, 2015, there was a conflict over a mop bucket, which the applicant had neglected to empty after he mopped the floor during this shift the previous evening.

The applicant claims that he was confronted by R.B. who angrily shouted at him several times, telling him to empty the mop bucket.  The confrontation escalated with R.B. continuing to yell at the applicant, culminating in R.B. stating “I will knock you the fuck out”. The applicant responded by telling R.B. that if he did so, the applicant would call the police. R.B. replied saying “you would call the cops, you fucking Jew”.

The applicant went outside to have a cigarette to calm his nerves. R.B. followed him outside and continued to yell at the applicant, telling him he was fired and that his services would no longer be needed. R.B. then went into the applicant’s car without the applicant’s permission to get Stackhouse’s debit machine.

The applicant went back into the store to speak with the personal respondent and told him that R.B. had just verbally abused him, physically threatened him, racially slandered him, broken into the applicant’s car, and fired him. He asked the personal respondent whether he was going to do anything about what had just transpired. The personal respondent responded by saying that R.B. was the head of the delivery drivers and the applicant was “just a part-time driver”. The applicant left the store.

The next day, the personal respondent called the applicant to inform him that he had “smoothed things over” with R.B. and that the applicant should come back to work, assuring the applicant that there would be no further issues.

When the applicant arrived at the store, the atmosphere was tense and R.B. did not speak to him. Once the personal respondent left the store, R.B. began to berate him about things that needed to be done in the store.  The applicant told him that he had had enough abuse and that R.B. owed him an apology, at which point R.B. exploded, telling the applicant that, as his boss, he would speak to him as he saw fit and that the applicant did not know how to keep his “Jew mouth” shut. He then told the applicant that the applicant was fired.

Once the applicant began to cash out so that he could leave, R.B. stepped into his personal space and spat on the applicant’s cheek, telling him “there’s your apology” and asking him “what are you going to do?”.  The applicant responded by telling R.B. that he was going to call the police as R.B. had just assaulted him. R.B. walked over to where the applicant was attempting to use the store phone, disconnected the call, ripped the phone out of the applicant’s hand, and yelled at him to “get the fuck out of the store”, pushing him out the back door.

The police came to the applicant’s home that evening and he asked them to press charges against R.B., but no charges were ultimately laid.

The applicant has never since returned to the store. His only other contact with the personal respondent was several days later when the personal respondent called him to tell him that if he filed a claim with the HRTO, the personal respondent would call OSAP and inform them that the applicant had been working while receiving student loans. The applicant asked the personal respondent to never call him again.

The Personal Respondent’s Version of the January Incidents

The personal respondent argued that he had investigated the confrontation that had occurred on January 10, 2015 after the applicant told him that he had gotten into a “little argument” with R.B. The personal respondent inquired with other staff about what had happened, asked them if anything racial had been said (the staff said no), and then specifically asked them whether the words “fucking Jew” had been used (again the other staff said no).

The personal respondent agreed that he called the applicant the next morning to see whether he would be coming to work. By that time, he had already spoken to R.B. to tell him not to yell at other staff. He concurred that while he was in the store that day, the applicant and R.B. were not speaking to one another, however, the subsequent events of that evening happened after the personal respondent left.

The personal respondent became aware of those events after the applicant called him at home around 9pm. At the time, the applicant told the personal respondent that he could no longer handle R.B. and had enough stress in his life. The personal respondent then called the store to speak to the other staff and ask what happened. Again, staff denied that there had been any racial slurs used, or that R.B spat in the applicant’s face.

With respect to the “OSAP” phone call, the personal respondent stated that the applicant had called him, yelling, and hung up. The personal respondent then called the applicant back, and said that if the applicant filed a complaint, that he was going to let the government know that the applicant was working as an independent contractor. The personal respondent stated that he was not actually going to report the applicant, and was just going to let it go.

Hearsay Evidence

A large part of the evidence in this case came from the applicant and the personal respondent, with much of the personal respondent’s version of events coming from hearsay evidence from the other staff. While the HRTO has the power to admit hearsay evidence, Vice-Chair Hart was not prepared to rely upon such evidence and specifically informed the parties that he would need to hear directly from any staff that may have witnessed the incidents.

No such witnesses were called to testify. The personal respondent claimed that he had not been able to get a hold of R.B., did not have R.B.’s phone number, and could not locate him on social media. He also stated that he had either left messages for the other relevant staff, had not been able to get a hold of them at all, or they had asked not to participate in the hearing.

Vice Chair Hart acknowledged that parties in legal proceedings may sometimes have issues locating witnesses and ensuring that they would attend the hearing, he was ultimately:

…not satisfied as to the extent of the efforts made by the personal respondent to try to find these witnesses or have them appear to testify at the hearing. In any event, in my view, any inability on the part of the personal respondent to locate these witnesses does not alter the fact that the evidence he provided as to what he was told by them remains hearsay evidence, which is inherently unreliable, deprives the applicant of his ability to cross-examine these witnesses, and makes it impossible for this Tribunal to assess their credibility.

The Decision

Vice Chair Hart found the applicant to be a credible witness:

• His application had been filed shortly after the events in question;
• His evidence had been consistent throughout;
• He provided the evidence in a straightforward manner and did not attempt to exaggerate what happened;
• He was prepared to acknowledge information that may have worked against him, such as the fact that other staff should have been able to hear the anti-Semitic slurs yelled by R.B.

Importantly, crucial elements of the applicant’s story were corroborated by the personal respondent. In addition, there was no direct evidence (other than the hearsay evidence) to contradict his version of events.

As a result, Vice-Chair Hart therefore agreed with the applicant’s version of events, and found that he had experienced discrimination with respect to employment because of his Jewish ancestry and creed.

The slurs which R.B. used in reference to the applicant created a poisoned work environment. The making of these slurs on two occasions in repeated and serious wrongful behavior that was sufficient to create an intolerable environment for the applicant, particularly in combination with R.B’s angry demeanour, physical threats, and the spitting.

In addition, the applicant’s rights were violated when R.B. fired him:

On both occasions, the decision to fire the applicant was communicated by R.B. immediately following the making of the anti-Semitic slurs, such that I infer that the applicant’s Jewish ancestry and creed was a factor in the decision to fire him.

Damages

Vice-Chair Hart awarded the applicant:

• $2,200 for lost income;
• $22,000 for injury to dignity, feelings, and self-respect.

If you are an employee and have questions about your rights in the workplace, contact Guelph employment lawyer Peter McSherry by phone at 519-821-5465 or by e-mail to schedule a consultation today. I can protect your rights, advocate for your best interests with employers, and ensure your case is handled properly and efficiently for a fair settlement.