In the current social and workplace climate, governments and employers are making practical efforts to develop policies to counteract systemic racial discrimination.
Human Rights Codes in all Canadian provinces and territories have prohibited discrimination on the basis of race, creed, colour, religion, nationality or place of origin for many years. However, obtaining a meaningful remedy can be a lengthy process, and often a complaint happens when an employer either cannot or will not directly deal with the issue in the workplace. More recently occupational health and safety legislation mandates policy, training and investigation to attempt to create and promote respectful workplace environments.
The Arbitrator's Decision in
An
... it is also appropriate to take administrative notice of the growing but regrettably all-too-slow acknowledgement of the continuing existence of racism of various forms or degrees in the workplace, including the recognition of "microaggression" defined in the Merriam-
... in the prevailing environment, given the progress towards the societal goal of eliminating all forms of harassment in the workplace, consistent (with) but not limited by the recent amendments of the OHSA, it is in my opinion now appropriate to regard any use of demeaning racial or ethnic slurs by one employee to another as very serious misconduct falling within the category of workplace offences that prima facie justifies terminating the employment relationship...
This decision places racial slurs in the same light for disciplinary purposes as offences such as theft, sexual assault, assault on a supervisor, sabotage and serious conflicts of interest. In practical application, termination is the presumed appropriate disciplinary response for employees who engage in racially-based harassment, absent compelling mitigating circumstances. Mitigating factors that might be relevant are also quite narrow, and focus on the employee taking responsibility for and ownership of their conduct, delivering a timely and sincere apology, and co-operating in the investigation.
Key Takeaways for Employers Addressing Racism in the Workplace
As with all discipline, a prompt and thorough investigation is critical, since most employees will deny at least the most egregious of the alleged conduct, and often, there are no independent witnesses. It is not sufficient for employers to take no further action on the basis of a "he said she said" scenario. If possible, it is necessary for employers to reach a conclusion on the balance of probabilities as to whose account is true, which can often include analysis of collateral information as to which version is more likely to have occurred in the circumstances that existed.
As with most modern workplaces,
While
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Ms
30th Floor
MB R3C 4G1
Tel: 204957 0050
Fax: 204957 0840
E-mail: marketingservices@mltaikins.com
URL: www.mltaikins.com
© Mondaq Ltd, 2021 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com, source