Labour Protections Apply Even in Cases of Blatant Racism
September 27, 2021
September 27, 2021
Previously printed in the LexisNexis Labour Notes Newsletter.
In early July 2021, an employee of Coca Cola (the “Grievor” and “Employer” respectively) was discharged from employment for wearing a bandana with the Confederate flag and the words “The South Will Rise Again” printed on it. When confronted, the Grievor removed the bandana without objection; he also denied that his decision to wear it had any racist intent. All of this came shortly after another troubling incident at a nearby facility: the discovery of a noose near where a person of colour usually worked.
In Coca Cola Canada Bottling Inc. v. Teamsters, Local Union 213 (Davis Grievance),  B.C.C.A.A.A. No. 32 (Noonan) – a carefully reasoned decision which acknowledged the racist overtones of the Confederate flag, the offensiveness of the hanging of the noose, and that “small factual changes may have made this a very different case”, Arbitrator Randy Noonan substituted a five-day suspension for the discharge.
The Grievor wore the bandana with the Confederate flag instead of a new face mask which had been provided to him by the Employer (after the implementation of a mandatory mask policy to combat COVID-19). Another worker approached the Grievor’s supervisor and advised that the Grievor was wearing the bandana instead of the face mask. The supervisor asked the Grievor to remove the bandana and he did so without objection.
In a subsequent meeting about the incident, the Grievor confirmed that he was familiar with the Confederate flag. He also acknowledged that some people see the flag as a symbol of hate and segregation, but denied that he saw the Confederate flag as such a symbol. He also claimed to have worn the flag at work on several previous occasions.
The incident was discussed among senior management staff at the Employer, and the decision was made to terminate the Grievor’s employment. At the time of his discharge, the Grievor was employed as a forklift operator and had just over two years of service and a discipline-free record.
In the termination letter, the Employer relied on the Grievor’s conduct with respect to wearing the Confederate flag.
The Employer also relied on the Grievor’s dismissive attitude towards a disturbing incident which had occurred a few weeks prior at a nearby facility of the Employer. An unidentified individual had fashioned a noose and hung it on a supervisor’s platform near where a person of colour ordinarily worked. Notwithstanding the fact that the Grievor was working at the facility at the time of the incident, the Employer was not able to identify him as the individual responsible for the hanging of the noose.
Arbitrator Noonan held that the Employer could not rely on the Grievor’s dismissive attitude or other comments in respect of the incident involving the noose. The decision before him was whether discipline was warranted for the wearing of the Confederate flag and, if so, what level of discipline was appropriate.
The arbitrator found that some form of discipline was warranted but dismissal was an excessive response. He held that “workers today must be sensitive to issues of diversity and inclusion and must take care not to act in ways that marginalize, offend, hurt, denigrate or otherwise discriminate against others”. However, he also held that the Grievor did not intend to cause harm.
The arbitrator ultimately held that a suspension was appropriate to “clearly illustrate to the Grievor and others in the workplace the importance of cultural and anti-racist sensitivity”.
Many employers continue to work hard to combat racism and promote diversity and inclusion in the workplace.
In this case, when faced with a troubling pair of incidents, which followed other racist incidents in previous years, the Employer took decisive action and discharged an employee for wearing a flag – or displaying a symbol – which is viewed by many as racist. The Employer did not prevail at arbitration.
The decision in Coca Cola Bottling Canada Inc. indicates that even where an arbitrator recognizes the seriousness of racism in the workplace, labour protections apply and employers must still meet the high threshold required when it comes to investigating workplace misconduct and terminating employment for just and reasonable cause. The following excerpt from Arbitrator Noonan’s decision provides a useful summary of the tension and balance to be struck:
… The Employer acted in pursuit of a noble cause –the elimination of racism and harassment in the workplace. That goal, however, does not detract from [the] requirement that any discipline imposed must be just and reasonable in all the circumstances. A measured approach is always appropriate and required.
Andrew Nicholl is an associate at the Vancouver-based employment and labour law boutique of Roper Greyell LLP, where he advises employers in all areas of labour and employment law, including workplace human rights and privacy law, and provides strategic advice regarding the management of legal issues in both unionized and non-unionized environments.
For more information about Andrew and the work he does at Roper Greyell and to obtain his contact information, please visit www.ropergreyell.com.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.