A concrete worker in British Columbia has been awarded $2,500 in human rights damages after being called a monkey and an ape by a colleague.
But the B.C. Human Rights Tribunal shot down the worker’s claim for additional damages, including constructive dismissal, citing the foreman’s serious and sensitive handling of the conflict, among other things.
Background
Raul Martinez Johnson worked at Whitewater Concrete in 2019 as an employee and a contractor. He describes himself as Mayan and Black.
He quit on Nov. 4, 2019, and filed a human rights complaint against the company and three of its employees — Miguel Pacheco and his sons, Nicolas Pacheco and Matias Pacheco.
Johnson alleged that :
- the Pachecos harassed him at work with racial slurs
- Whitewater did not address the racial slurs, which resulted in Miguel assaulting him on Nov. 4, 2019
- as a result of the ongoing and unaddressed harassment, he had to leave his employment — which he did so after the assault.
The Pachecos denied that the harassment, or the assault, took place. Whitewater said Johnson only raised the issue in September 2019, and it dealt with it at the time and believed it was resolved until the Nov. 4 incident.
Whitewater said it investigated the alleged assault and determined it did not take place, and that Johnson simply chose to quit his job.
The ruling: Slurs
The tribunal concluded that Nicolas called him a monkey and an ape at work on two occasions, and they were discriminatory racial slurs.
Nicholas admitted to using those terms — calling him “mono” (Spanish for monkey) and “simio” (Spanish for Ape) at work “a few times.” But he denied he was using them as racial slurs towards Johnson. Instead, he used these words to describe him as “careless.”
The tribunal, though, ruled that Johnson’s race, colour, ancestry and place or origin were “at least” factors in being called a monkey and ape by Nicholas.
The assault
The tribunal said the allegation of assault by Miguel was not corroborated by anyone else present. Evidence showed the two had a discussion and were talking loud about a work task.
But it ruled that Miguel didn’t assault Johnson.
“Based on all the evidence, I find that Miguel Pacheco intervened in an escalating and potentially unsafe dynamic between Mr. Martinez Johnson and Nicolas Pacheco,” it said.
“Miguel Pacheco’s intervention may have resulted in raising his hand defensively and / or to create a physical boundary, but I do not find he assaulted Mr. Martinez Johnson, or that Miguel Pacheco’s conduct on November 4, 2019, was connected to any discriminatory conduct. “
Allegations against the company
Johnson claimed constructive dismissal because of the ongoing and unaddressed harassment.
The tribunal, though, said the company only became aware of an issue between Johnson and the Pachecos after two incidents — September 2019 and Nov. 4, 2019.
It ruled that Whitewater had “adequately” investigated the incidents, and there was no constructive dismissal.
In September 2019, when Johnson complained about the name calling, management took steps. Nirbhai Sidhu, the general foreman at Whitewater, called a meeting between Johnson and Pachecos to talk about the problem.
The Pachecos denied name calling and said the issue was more about how to do a work task.
“We discussed the importance of teamwork and how everyone was a part of the team,” said Sidhu. “We also acknowledged that working long hours with each other was eventually going to get us on each other’s nerves. We shook hands with everyone and seemed to have resolve the situation.”
Sidhu took steps that showed he treated the allegations “seriously and sensitively,” including:
- checking in with Mr. Martinez Johnson after observing that he was visibly upset;
- acting promptly on Mr. Martinez Johnson’s allegations by calling a meeting;
- asking the Pachecos to respond to the allegations;
- facilitating a discussion where Mr. Martinez Johnson and the Pachecos could share their grievances, and trying to understand those grievances;
- after hearing from Mr. Martinez Johnson and the Pachecos, acknowledging that the long work hours together could contribute to stress and conflict;
- confirming that Mr. Martinez Johnson and the Pachecos were all part of the team, and that teamwork was important; and
- ending the meeting with an understanding that the conflict between Mr. Martinez Johnson and the Pachecos was resolved, signified by everyone shaking hands.
Following the Nov. 4, 2019, incident the company concluded that Johnson and the Pachecos were “unable to work together.” At that point, it was prepared to separate them at work — and the company took reasonable steps, the tribunal said.
The remedy
The tribunal noted that Nicholas Pacheco was not in a position of authority over Johnson in the workplace.
“They were both carpenters who reported to Mr. Sidhu. This is not a case of an employer exploiting a position of power or authority over a worker, which would typically warrant a higher injury to dignity amount,” it said.
“This is a case of slurs said twice over a relatively short period time, in the context of arguments between co-workers.”
But there was no doubt they had a “particular harmful impact” on Johnson, leading him to feel embarrassed, mocked and disrespected, it said.
It awarded $2,500 in damages, and said Whitewater and Nicholas were “jointly and severally liable” for that amount.
For more information, see Martinez Johnson v. Whitewater Concrete Ltd. and others (No. 2), 2022 BCHRT 129 (CanLII)
