An Ontario Power Generation (OPG) worker who told a colleague to “play the Indian card” and questioned why there isn’t a white history month has been awarded her job back after being fired.
The arbitrator cited the woman’s 18-year record as an employee, and her remorse and apology, in substituting the termination with a one-day unpaid suspension. It also ordered her to undergo Indigenous-focused sensitivity training.
Background
KR, 63, was employed at the Western Waste Management facility in Kincardine, Ont., as a procedure writer. At the time of the events that led to her dismissal, she had been with OPG for 18 years.
During the week of Jan. 10, 2022, she was in the cafeteria talking to a colleague, JH. JH was a temporary employee and KR was acting as her supervisor as she had temporarily “stepped up” into that role.
During the conversation, JH told KR that she was a citizen of the Métis Nation of Ontario and her spouse was First Nations. According to JH, KR responded by telling her she should “play the Indian card” in order to obtain a permanent position at OPG.
KR did not dispute saying something along those lines to JH.
The union said she made the statement to inform, not offend, albeit in a clumsy and inappropriate way. OPG has equity, diversion and inclusion initiatives — such as its Indigenous Opportunities Network — to attract and hire more racialized and Indigenous employees.
JH responded to the comment by saying she was happy with her temporary position and did not want a full-time job.
The DGR issue
During the same cafeteria conversation, KR made a comment about a deep geologic repository (DGR) that had been proposed to store nuclear waste at the Bruce nuclear site. It was not going ahead because the local Indigenous community had voted against it.
KR was apparently under the mistaken impression that the DGR had not gone ahead because the Métis Nation had voted against it. (In fact, it was only contingent upon the agreement of Saugeen Ojibway Nation, which overwhelmingly rejected it in 2020.)
KR told JH the DGR should “never have been allowed to be decided by a binding vote” and that OPG had “spent a lot of money courting the Métis Nation for the DGR project.”
JH felt like she was in an awkward position because KR was directing her work during the time of the conversation as supervisor. JH, who also didn’t know it wasn’t the Métis Nation that had voted down the project, essentially agreed with KR about the vote and made a comment about there being a lot of internal politics in the Métis Councils. Later that night at home, JH was upset because she felt she had “thrown her nation under the bus.”
JH did not say anything to KR about being offended or upset by the Jan. 10, 2022, conversations.
White history month comments
The next month, KR made another comment on two separate occasions that upset JH. The two were in the cafeteria when a TV program came on about Black History Month and KR said: “Why don’t we get a white history month?”
JH left the cafeteria without saying anything. KR posed the same question a couple of days later in front of more people in the cafeteria, then turned and looked at JH and said “I’m not prejudiced.” Another employee responded “We know you’re not.”
JH was upset about KR’s comments and began to work remotely as much as possible to avoid contact with her.
In March 2022 JH raised her concerns to a member of management, who suggested she file an internal human rights complaint. She filed that on March 9.
Apology letter
A disciplinary hearing was held on May 2, and KR was fired on May 18. Two days after, she gave a written apology to OPG that she asked to be sent to JH.
“I would like to apologize for offending you and making you feel uncomfortable in some conversations we have had in the past – that was never my intention, and I am deeply sorry that you felt the way you did following them. I should have been more sensitive and used different words when discussing certain topics. I should have never said what I did. I have had some time to reflect and realize the errors on my end and I am working to correct them for future situations. I hope you can someday forgive me,” it read.
The ruling
The arbitrator noted there is a difference between treating people in a negative manner on the basis of race, which was not alleged in this case, and not supporting measures that single out a particular group for recognition or special treatment based on race.
“Whereas the former is contrary to human rights legislation, the latter is not a form of prohibited speech that engages the employer’s disciplinary power,” it said.
It did say the question about white history month was “provocative and careless.” But it warranted a non-disciplinary letter of expectation, “explaining that her comment had been upsetting to a co-worker and counselling her on the importance of being sensitive so that everyone feels welcome at the workplace.”
It did not rise to the level of disciplinable misconduct, it ruled.
OPG argued the suggestion that JH “play the Indian card” was sufficiently serious to warrant discharge.
But the arbitrator did not agree.
“It is clear to me is that the Employer’s response to the grievor’s conduct was out of proportion to what occurred. In my view, there is no basis upon which I could reasonably conclude that the grievor deserved to have her employment terminated by the Employer after 18 years of discipline-free service because of the comments she made to and/or in the presence of the Indigenous complainant,” it said.
While OPG said the apology letter should be given little weight because it was written post-termination, the arbitrator noted KR said at an early stage she felt bad she had upset JH and would have apologized to her.
The fact KR was acting in a supervisory role at the time was important, and needed to be taken into account. But, given all the circumstances, it ruled a one-day unpaid suspension was the appropriate penalty and OPG was ordered to reinstate her to her former position with no loss of seniority or compensation.
“A suspension of some duration, as opposed to a reprimand of some sort, for example, is appropriate to reinforce the fact that discriminatory comments of any kind cannot be tolerated in the workplace,” it said.
It also required KR to ” participate in whatever Indigenous-focused sensitivity and awareness training the Employer determines, in its discretion, to be appropriate.”
For more information, see Ontario Power Generation v Power Workers’ Union, 2023 CanLII 30400 (ON LA)
