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Raising allegations of discrimination in the workplace: Is it what you say, or how you say it?

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In October 2021, my colleague Dana Campbell-Stevens wrote a blog in which she addressed how the law views an individual’s gut feeling about being a victim of discrimination. A recent case from the Saskatchewan Court of Appeal, Thomas v. Saskatchewan Indian Gaming Authority Inc.,1 raises issues respecting the potential implications of an individual voicing such a gut feeling.

The Saskatchewan Indian Gaming Authority Inc. is a non-profit organization that describes itself as “a First Nation organization employing First Nation people,” and whose mandate is to “create employment for First Nation people,” amongst other things. An employee, an Indigenous man, had applied for a promotion. When he was told by his supervisor, a white man, that another candidate, a woman, had received the promotion, he became very upset. He raised his voice, pointed his finger at his supervisor, and called the reasons given for the choice of candidates “bullshit.” He stated something to the effect that he would have had a better chance at getting the promotion if he had “cut his own balls off.” He called his supervisor a racist, saying he did not support the advancement of Indigenous men. Another supervisor who was present at the meeting said he thought the employee “might take a swing” at the supervisor, and that though he had dealt with many angry employees, he had never seen anything like this before.

The supervisor filed a complaint under the employer’s Anti-Harassment & Workplace Violence Policy. An investigation was conducted, during which the employee was put on an administrative leave. Despite being directed not to communicate with any other staff during the investigation, the employee nonetheless disclosed to three other employees that he had been placed on a leave for saying “how he really felt.”

The employee’s employment was terminated for cause, based on the findings in the investigation that he had engaged in unprofessional, antagonizing, and threatening behaviour, and based on his having breached confidentiality during the investigation process.

The employee brought a wrongful dismissal action. The trial decision upheld the for-cause termination of employment, finding that the employee was “attacking” and “belittling” his supervisor, and that his words amounted to insubordination because, given the nature and mandate of the organization, not being racist was of fundamental significance to the supervisor, and to the organization itself. The trial decision found this conduct was insubordinate to not only his supervisor, but the organization as a whole, and constituted just cause for dismissal.2

The employee appealed. One of the several grounds he raised 3 was that the court had erred in finding that raising allegations of discrimination – calling his supervisor a racist and that he did not support the advancement of Indigenous men – amounted to misconduct which justified dismissal for cause.

The appeal was dismissed. On the question of whether alleging discrimination could amount to misconduct, the Court of Appeal held that it was not the subject matter (i.e. the allegation of discrimination), but the manner (“attacking” and “belittling” the supervisor), which was objectionable. 4 The Court of Appeal agreed with the applicant that his conduct was better characterized as “insolence,” rather than “insubordination”; however, in relying on case law which held that making statements which questioned the integrity of a supervisor or employer could also justify dismissal,5 ruled that his actions towards the supervisor were nonetheless sufficiently offensive to justify dismissal for cause. The Court ruled that the issue was not the employee’s motivation for his actions, but rather his conduct towards his supervisor.

The Court further rejected the employee’s suggestion that allowing the trial decision to stand would mean employees could not raise concerns of discrimination without fear of giving cause for dismissal.

Questions raised

This decision raises a number of questions respecting, on the one hand, an employee’s ability to raise allegations of discrimination, and on the other hand, an employer’s ability to address incidents of insolence.

On the facts of this case, even had no allegation of racism been made, the employee’s conduct may well have been sufficiently objectionable to justify discipline, even up to dismissal for cause. The objectionable conduct was, however, not just the swearing, pointing finger, raised voice, or impression that he may become violent, but also his “belittling” his supervisor by calling him a racist.

It raises the question of how the protections against retaliation or reprisal for raising claims of discrimination, often found in human rights legislation,6 should apply where the claims of discrimination are made confrontationally or aggressively. By saying that it was the manner in which the issue was raised, the suggestion would appear to be that, had the employee professionally and calmly stated his belief that the decision not to promote him was discriminatory, there would have been no issue.

No matter how politely raised, however, an employer may still consider an allegation that they have engaged in discriminatory conduct to be an attack on their integrity. The question this decision raises is where the line between defending one’s integrity, and being able to raise allegations of discrimination, should be drawn.

This article has been selected for publication in the March 2022 edition of the Employment and Labour Law Reporter:

Bruce Best, “Raising allegations of discrimination in the workplace: Is it what you say, or how you say it?”, Case Comment on Thomas v Saskatchewan Indian Gaming Authority Inc, (2022) 31 ELLR 94

1 2021 SKCA 164

2 The trial decision is unreported, though portions are quoted at paragraph 15 of the Saskatchewan Court of Appeal’s decision.

3 The employee also appealed the finding of insubordination, the findings related to breaching the workplace policies, the finding that a single act of misconduct justified dismissal, and the finding that he had breached confidentiality.

4 Appeal decision, paragraphs 31-32.

5 Appeal decision, paragraphs 37-38.

6 See, for example, The Saskatchewan Human Rights Code, 2018, SS 2018, c S-24.2, s. 53.

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