Alberta employer justified in firing man who scrawled ‘I am not Muslim’ on mask to protest mandate

An Alberta man who responded to a mask mandate by scrawling “I am not a Muslim” in marker across his mask and wearing it around his workplace has had his termination upheld by an arbitrator.

The worker was a shipper at Federated Co-operatives Limited (FCL), and the temporary chief shop steward at the company’s building solutions distribution centre in Calgary. He was hired in August 2000.

On July 7, 2020, there was a positive COVID-19 case at one of the company’s distribution centres in Edmonton, resulting in a number of workers having to go into isolation. In response, the company instituted a mandatory mask mandate for all of its warehouse employees, effective immediately.

The next day, Kirstin Johnson – the senior supervisor at the worker’s distribution centre – met with the warehouse supervisors to inform them of the policy change and supplied them with masks to be given to employees.

Johnson then asked to meet with the worker, in his role at shop steward, to give the union a heads-up about the policy change. Eiren Good, the worker’s director supervisor, also attended the meeting.

Johnson let the worker know about the positive test and the decision to implement a mask mandate for all of its warehouse employees for health and safety reasons.

Objection to mask mandate

The worker objected to the change in policy. In essence, he opposed the mask mandate, the arbitrator said. The worker said masks were a sensitive issue for a lot of people and some of them may not feel comfortable wearing one.

In his view, the company already had implemented sufficient safety protocols for COVID-19.

“During this meeting, (the worker) also chose to communicate his views on the ideology of masks, saying that masks were an ‘Asian thing’ and opined that the wearing of masks was not a common practice in North America,” the arbitrator said. “He said that mask mandate infringed upon his rights. In further response to the mask mandate, (the worker) stated, ‘I am not a Muslim’ and added that he was ‘shocked’ to see people wearing masks in Western civilizations.”

Both Johnson and Good tried to steer the conversation back to the health and safety rationale, the arbitrator said. They reiterated that the mandate had nothing to do with personal or political views, or race, religion, country of origin, ideology or Western values. The mandate was in effect, and any employee who refused who face suspension pending an investigation.

Writing on the mask

The worker went back to work. Back at the shipping desk, he took the blue mask he had just been given and wrote “I AM NOT A MUSLIM” in uppercase letters with a marker on the mask and put it on. He wore it and was seen by multiple co-workers, and at least one of them warned him about the writing on it.

His supervisor, Good, saw it and cautioned him that the words on the mask were unacceptable and would not be tolerated. Despite that, he kept the mask on until it broke at some point during his lunch break. At that point, he got a clean mask and put it on and wore it without incident for the rest of the day.

Good reported the encounter to Johnson. Johnson reached out to HR, and concluded his act was a breach of the company’s discrimination and harassment policy. He was summoned to a meeting to discuss the incident.

In that meeting, he was asked how others might feel about his Asian comment or upon seeing the words on his mask. According to the employer, the worker replied that “how other people may or may not feel” is not in his control.

Evans was suspended pending the outcome of an investigation. He was given a copy of the discrimination and harassment policy and told not to come back to work until he was called.

Later that evening, after reading the policy a couple of times, he said he realized that what he had done was “harmful, hurtful, insensitive (and) derogatory to other people.”

“At the time, I didn’t fully appreciate the health concerns of the company,” he said. “I had never worn a mask, had never covered my face before… for me, Muslims cover their faces and I had never covered my face… I felt like my life experience to that point was being attacked.”

The investigation meeting

The worker was summoned back to FCL on July 17 for an investigation meeting.

At that meeting, he expressed regret and said it was a moment of “poor judgment and immaturity” and acknowledged it could have been interpreted as hurtful to others.

He wanted a chance to fix the mistake, correct his actions and grow from the experience to become a respected leader once again. In short, he wanted others to see he is not the person this one incident made him out to be.

The company decided to terminate his employment and called him back in for meeting on Aug. 6, 2020

The ruling

The arbitrator said the worker’s defense, that he had written “I AM MUSLIM” as a statement of fact, was not plausible.

“I find that his blatant disregard for the warnings he received that day evidenced his refusal to conduct himself as required in the workplace. I find that Mr. Evans actively defied known workplace rules without regard for his coworkers; and he did so while in a leadership role both as a 20-year employee and as temporary chief shop steward; all of which are aggravating factors,” the arbitrator said.

The arbitrator was not persuaded that his discriminatory acts of misconduct would not be repeated.

“The intentionality of his conduct on July 8, 2020, and his repeated declarations about Muslims, Asians and his belief that the mask mandate represented, in part, an attack on his life experience belie his later testimony that he has since developed a new appreciation of the nature and degree of his misconduct,” the arbitrator said.

The penalty of discharge was not excessive, unreasonable or unwarranted in the circumstances, the arbitrator ruled.

For more information see Federated Co-operatives Limited v Miscellaneous Employees, Teamsters Local Union No. 987 of Alberta, 2022 CanLII 78226 (AB GAA)