Company’s ‘unconscious bias’ in firing of Black worker from transit project cited in $160,000 arbitration award

An interior shot of Toronto's subway system. Photo: Bart Anestin/Unsplash

A Black construction worker, fired without cause from Toronto’s Eglinton Crosstown LRT transit project, has been awarded more than $160,000 by an arbitrator — including $20,000 in human rights damages.

The arbitrator said the worker, AW, lost his job as a result of discrimination.

“Indisputably, that is a very serious consequence, and a harsh blow to (AW’s) dignity even though I have found that the company’s conduct was the result of unconscious/ implicit bias,” it said.

In February 2022, the Ontario Labour Relations Board ruled the discharge of AW — a skilled labourer — was not justified and violated both the applicable collective agreement and the Human Rights Code.

While the board did not initially provide specific remedial orders, opting instead to allow the parties to resolve the issue, subsequent attempts at reaching an agreement failed.

AW, a Black man with extensive experience in the construction industry, was employed by CTS (ASDE) Inc. from August 2017 to August 2019 under the terms and conditions outlined in the collective agreement between Local 183 of LIUNA, the labour union representing AW, and the Heavy Construction Association of Toronto.

During his tenure, AW worked on the Eglinton Crosstown LRT Project, contributing to various tasks such as flagging, shoveling, concrete chipping, and site cleanup. He also performed welding work intermittently.

The dispute centers around his employment at Forest Hill (Bathurst) Station, where he was overseen by project managers, superintendents, and foremen. The board’s prior decision highlighted a conflict that occurred on August 15, 2019 when AW was assigned to assist with moving a crane. Following an altercation with a fellow worker, AW was subsequently sent home and terminated by CTS 12 days later.

Anti-black bias, racial discrimination

The arbitration board, in its previous ruling, dismissed the layoff grievances but found the termination lacked just cause. Moreover, the board identified evidence suggesting AW had been subject to anti-Black bias and racial discrimination. They concluded his dismissal was tainted by discrimination based on race and color.

During the remedy hearing, which followed the initial decision, the board heard from DG, the Employer’s manager of labour relations, and AW himself. The remaining disputed issues include whether AW would likely have been laid off or transferred to another station, the extent of his mitigation efforts, and the quantum of general damages resulting from the breach of his human rights.

AW made it clear that he did not seek reinstatement with the company, and therefore, the union did not pursue that remedy.

Compensatory damages

AW obtained intermittent employment in the construction industry following the termination by CTS.

The union estimated his compensatory damages at more than $308,000, while CTS countered that no more than $75,791.50 was appropriate.

The union argued AW would likely have remained employed until he obtained his current job, whereas the company contends that his employment opportunities would have been limited and ceased by April 2021.

The arbitrator said it was reasonable to conclude AW’s employment would not have continued until he joined his new employer and therefore the union’s estimate of compensatory damages was oversttated.

Based on the evidence and the nature of the construction industry, it is reasonable to determine a reasonable period of notice of termination in all the circumstances. Considering AW’s intermittent employment and the winding down of the project over which the union has jurisdiction, a notice period of two years is appropriate, the arbitrator said.

It also ruled CTS did not prove that AW had failed to mitigate his damages. It awarded $243,381.03 in damages — clawing back the $100,685.04 AW earned in his new job — meaning a balance of $142,695.99 was owed.

Human rights damages

The union sought $35,000 in damages, including:

  • $10,000.00 for the breach of the right to be free from discrimination, injury to dignity, self-respect, self-esteem and confidence;
  • $10,000.00 for mental stress, humiliation and hurt feelings;
  • $15,000.00 for three separate occasions ($5,000.00 per occasion) of the Company’s failure to investigate allegations of discrimination.

The arbitrator pointed out that AW lost his job due to discrimination, affecting his dignity and self-esteem. He experienced emotional difficulties, stress, sleeplessness, and sought medical help for sleeping problems.

Being an older worker, in his 60s, made him vulnerable in his job search, but he found sporadic employment, it said.

The company said an award of no more than $5,000 was appropriate. It argued this was not a case of intentional or overt discrimination, and there was no medical evidence submitted about his emotional pain that would warrant higher damages.

The arbitrator awarded $20,000 in general damages, bringing the total with compensatory damages to $162,695.99.

For more information see Labourers’ International Union of North America, Local 183 v CTS (ASDE) Inc., 2023 CanLII 51075 (ON LRB)

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