Worker didn't provide any examples or details of racial discriminatory comments to employer
The Saskatchewan Court of Queen’s Bench has dismissed a worker’s claim of discriminatory comments from his supervisor due to an absence of any evidence.
The worker was a heavy equipment operator for Banff Constructors Ltd., a construction company based in Saskatoon. Hired in August 2018, the worker had 25 years of experience as a heavy equipment operator before joining Banff.
The worker was Indigenous and grew up on a First Nation reserve north of Saskatoon. He was hired to be part of a large construction project in and around Regina, which had started in 2015 and was nearing its end in 2018.
The worker’s job involved loading trucks with material from fields in the construction area using an excavator. He started out working with a crew of about 12 other heavy equipment operators, but his field supervisor soon moved him to a remote area, where he continued to load materials into trucks. The supervisor came by daily to check on how he was doing.
The remote area where he was working was adjacent to a reserve but wasn’t on it. However, the worker mistakenly believed it was on the reserve, so he approached his supervisor to get documentation to claim a tax exemption as an Indigenous person working on reserve land. According to the worker, the supervisor started yelling and swearing at him with racial comments such as “you f---ing Indian” and “Indians always wanting to get something for nothing.”
The relationship between the worker and his supervisor continued to deteriorate. On one occasion, the supervisor was showing the worker a new job location in his truck and made comments about “Indians not showing up for work the day after payday” and hinting that he was surprised that the worker had shown up that day.
The worker also claimed that the supervisor pointed out a mattress in a field with garbage and asked the worker if he needed a nap and “Is that where you Aboriginals sleep?” This comment was particularly hurtful to the worker, but he didn’t say or do anything at the time as he was still on probation and didn’t want to risk losing his job.
The worker had issues with how his supervisor wanted the work to be done, as well as safety concerns which he didn’t feel were being addressed. He emailed Banff’s labour advisor for the area and forwarded emails he had sent to the supervisor about his concerns, as well as his assertion that the supervisor was harassing him. He also referred to a conversation with the supervisor that “was recorded with supervisor yelling at me,” but he never provided it.
No examples of comments provided
The labour advisor asked the worker to send more details and examples of discriminatory comments by the supervisor, but the worker didn’t provide any. He felt that it was too personal to send in a text or phone call and wanted to have a personal meeting with the labour advisor during which he would reveal the specifics of the racial comments.
On Oct. 23, the worker was only filling the excavator’s bucket half-full because it was windy. The supervisor, who was responsible for the project’s schedule and budget, yelled at the worker on the two-way radio – where other employees could hear –to fill the bucket or go home. The worker decided to go home, although he wasn’t sure if he had been fired.
According to the worker, the supervisor had come over after the radio call and said, “You f---ing Indians; you think you guys are know-it-alls!” The supervisor said that he had returned to the office to cool down because he knew he had been too sharp on the radio and did not make the racial comment.
The worker emailed the labour advisor with an attached text outlining unsafe working conditions and what he called unprofessional and humiliating conduct of the supervisor over the radio.
Three days later, on Oct. 26, the labour advisor informed the worker that he was laid off due to a shortage of work.
Human rights complaint
The worker filed a human rights complaint against Banff, alleging that race and/or ancestry was a factor in his treatment by the supervisor, Banff failed to protect him from discriminatory comments made by his supervisor, and Banff failed to take any steps to address the issues he raised or to sustain a safe working environment.
The court referred to the three-part test to demonstrating discrimination – there is a protected ground under the Saskatchewan Human Rights Code, there was an adverse impact, and the protected characteristic was a factor in the adverse impact. In addition, the adverse impact had to be “regarding employment” for Banff to be liable.
The court noted that there was no doubt that the worker was an Indigenous person, which met the first part of the discrimination test. To meet the second part, the worker had to establish that there was an adverse impact regarding employment, said the court.
The court found that both the worker and the supervisor were experienced and well-versed in their profession, and they had strong personalities that contributed to the deterioration of their working relationship. They were both credible in their accounts of events, as was the labour advisor, said the court.
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Employer requested examples of comments
However, the worker’s failure to provide any details in his complaints of discriminatory comments by the supervisor hurt his cause, the court said. The labour advisor asked him to do so in multiple phone calls, but the worker didn’t.
“Despite being specifically asked for such detail at no time did [the worker] ever provide [the labour advisor] or anyone with Banff the particulars or specifics of any racial discriminatory statements made to him by [the supervisor] or anyone employed by Banff,” said the court.
The court found that, although the supervisor “had a quick temper and was rough around the edges,” there was no evidence that contradicted his denial of making any racial comments. The supervisor had 41 years in the construction industry without any complaints against him, so the court accepted his testimony that he had not made any racial comments.
The court determined that the worker and the supervisor had “a very troubled, toxic relationship,” but the evidence did not establish that there were any racial discriminatory comments. As a result, there was no adverse impact related to the worker’s employment, said the court in dismissing the complaint.