By Lewis Waring, Licensed Paralegal, Student-at-Law, Editor, First Reference Inc.
In Saskatchewan Polytechnic Faculty Assn. and Saskatchewan Polytechnic (Derow), 2020 CanLII 78471 (SK LA), Re (“Derow”), a unionized teacher’s dismissal related to racist comments against indigenous persons was set aside and he was reinstated to his position with conditions.
The teacher, in this case, had been working for Saskatchewan Polytechnic for 34 years and had been employed in the school’s carpentry program. Instead of dismissal, the arbitrator held that the employee would be suspended for six months and required to undertake appropriate education. Upon his return to work, the employee was required to undergo Indigenous Awareness Training. In order to correct the employee’s unjust dismissal, he was awarded an amount of compensation to make up for the lost wages and benefits since the date of his dismissal.
The teacher’s racist comments
The conduct which led to his dismissal involved his response to a co-worker’s email which had asked for donations for the school’s “Indigenous Student Holiday Hamper Appeal.” The teacher responded by email, stating, “Have we not given enough already. Be like the rest get jobs.” When his co-worker approached him about these racist comments, the teacher made more racist comments, including but not limited to statements that “[t]axpayers give enough,” “I work for what I have” and “[y]ou guys get free education.” The teacher also stated that indigenous persons should go back to their teepees after complaining that the Canadian government had built them houses. Overall, the teacher complained that indigenous persons unfairly obtained social support from the government.
The teacher’s apologies
However, during this conversation, the teacher apologized, saying that he was sorry if he had offended the co-worker. His co-worker had ignored the apology despite the fact that the apology was recognized to be genuine. In response, the employer launched a flawed investigation which failed to provide opportunities to apologize. Although the Union had approached the employer immediately to explain the context of the teacher’s racist comments, the employer had failed to consider this context.
After being dismissed, the teacher sent his co-workers’ apologies letters which were acknowledged to be sincere. In these letters, he acknowledged that “his eyes had been opened to his own ignorance and insensitivity” and that “he is questioning in his long-held beliefs.” The teacher stated that he wanted to “seek the truth” and “stop passing misinformation to next generations.” In these letters, the teacher also set out the steps he had taken and intended to take to address his problematic attitudes. Furthermore, on the first day of the hearing, the teacher approached his co-worker, shook his hand and apologized for what he had done.
Determining the appropriate disciplinary response required examining how similar cases had been treated. There were a number of cases in which dismissals of employees for racist statements had been overturned in favour of suspension and education. In one case, an eight-year employee had been dismissed in response to two instances of racial harassment. The first instance involved deeply offending a Japanese co-worker by implying that he was Chinese. The second instance involved someone saying on a company bus, “All coloured people to the back.” The employee’s otherwise clean work record suggested that dismissal was inappropriate and so suspension and education were substituted.
In another case, an eleven-year employee’s dismissal was upheld after he had used foul language and engaged in a rude conversation on one occasion. Unlike in Derow and the above case, the employee, in this case, had already received a written warning for unprofessional behaviour and had been suspended for making discriminatory comments about “African American” people. The key distinction, in this case, was that dismissal was in line with the principles of progressive discipline. That is, the employee, in this case, had already received a written warning and a suspension. This disciplinary history demonstrated a failure to correct his serious misconduct and thus signalled that the employment relationship was irreparable.
The appropriate disciplinary response
The teacher in Derow was found not to have permanently lost the trust of the employer despite the employer’s claims to the contrary. Key to this finding was the fact that the teacher had immediately admitted what he had said and had proactively sought to educate himself about Indigenous history. The teacher recognized that his discriminatory statements were in part the result of long-standing societal attitudes. As a result, the teacher’s dismissal was overturned and substituted for a more appropriate disciplinary response. Considering the teacher’s comments were his first offence, the principles of progressive discipline suggested that he ought to receive relatively light discipline such as a reprimand or a short suspension which might last only five days or so.
However, the teacher’s misconduct was recognized to be very serious. Racist behaviour against indigenous persons, especially in the context of a public institution, was recognized to be completely intolerable in modern society. As such, the serious nature of the teacher’s conduct created a need for a heavier response than would normally be merited for a first offence. However, a lengthy suspension without pay was, on the other hand, too severe. As a result, the proper disciplinary response was a lengthy suspension of six months with pay. This disciplinary response achieved key goals of discipline-specific to the teacher’s misconduct. The implementation of an unusually long suspension responded to the seriousness of the offence and sent a message to the teacher as well as others in the workplace that racist conduct would be treated harshly.
Racism against indigenous persons in Canadian workplaces
Derow is a crucial case for both unionized and nonunionized workplaces throughout Canada. Discrimination against indigenous persons in Canada is an issue that continues to develop and is particularly salient in the workplace, where all Canadians must attend to make a living and will commonly encounter others from different backgrounds. While the teacher’s racist behaviour, in this case, was recognized as being extremely serious, the path forward was also recognized to be through education instead of termination. This focus on education was recently embraced in the federal government’s Truth and Reconciliation Commission. The recognition of Canada’s history of egregious racism against indigenous persons has led to questions of how to reconcile with First Nations moving forward. Part of that effort is acknowledging the reality of racism in Canadian culture and responding to that culture through education. As such, the decision to suspend and educate the teacher in Derow makes sense and is part of an effort to reduce racism in Canada.
Employers should understand that racism in the workplace is a challenging and serious issue. Education is a valuable tool which employers should attempt to use whenever possible. However, it is also acknowledged that, in some cases, employees may be resistant and ultimately refuse to set racist beliefs aside and may even continue to engage in racist conduct in the workplace. In such cases, dismissal may be merited. Thus, when dealing with racist conduct in the workplace, employers are ultimately recommended to follow principles of progressive discipline but recognize that racist conduct is a very serious offence in the workplace that should be treated differently than some other more typical infractions. If an employee’s racist conduct is his or her first offence, it is important to conduct a proper investigation and explore whether the employee will respond to disciplinary action which would ideally consist of suspension alongside education. Employers are recommended to approach each scenario on a case-by-case basis and understand that reconciliation with indigenous persons is not merely a task for the federal government, but instead requires hard work by Canadian employers in pursuit of reconciliation.