A former truck driver for TST Overland Express (TST) has been awarded nearly $75,000 by the Canadian Human Rights Tribunal after it ruled the Iranian-born man faced harassment based on his race and termination related to a disability.
The driver, AA, was terminated from TST on Nov. 1, 2019, while on an authorized leave in Iran that was extended due to health issues.
He contended that his termination involved discrimination based on disability, race, and religion. Additionally, AA claimed he endured consistent harassment during his tenure at TST, including derogatory treatment from coworkers and management, offensive posters, and remarks demeaning his national origin, race, and religion.
The offensive posters were displayed on a bulletin board in front of the dispatcher’s office at the trucking terminal in Ottawa, an area with high visibility. AA said it started around 2009 or 2010, when news reports came out of the Middle East about terrorists beheading people.
Many at work referred to these people as AA’s “cousins.” A sampling of the posters that were put up included:
- A clipping from a newspaper with a photograph of a heavily overloaded truck in Kandahar, Afghanistan. At the top of the poster, someone wrote “(AA) Transport” using his first name.
- A poster with AA’s photo on the left and an unknown man with dark complexion on the right, wearing ammunition belts across his chest. Underneath the man was the caption “Breadman, the impenetrable.” At the top of the sheet, someone wrote: “Truck driver by day – Bread Man by night.” The photo used of him was his official company ID photo.
- Another poster featuring his ID photo had the caption: “Will dispose of your plutonium or uranium for free. Call 1-800-JIHAD ASK FOR (AA).
The Tribunal’s ruling
The Tribunal found substantial evidence of harassment based on national or ethnic origin, race, and religion.
Furthermore, the Tribunal substantiated AA’s claim regarding termination due to disability, although it did not find sufficient evidence for discrimination based on religion, national or ethnic origin, and race regarding the termination.
TST’s defenses, including arguments on the late filing of the complaint and the doctrine of laches, were rejected by the Tribunal. It was concluded that TST’s harassment policy was ineffective and inadequately communicated to employees, including AA.
Ineffective harassment policy
The Tribunal also dealt with the question of whether AA needed to notify TST about the harassment he was facing at work.
The Tribunal referred to the Franke decision and the Peters v. United Parcel Service Canada Ltd. case, highlighting that the obligation to report harassment to the employer applies when the employer has both a comprehensive and effective harassment policy and the appropriate redress mechanisms in place.
The Tribunal found that TST’s harassment policies, both from 2005 and 2013, were not effectively communicated or implemented. They were vague about to whom complaints should be made and lacked specific directions for reporting. Moreover, these policies were not effectively disseminated among employees, as evidenced by AA’s testimony that he was unaware of any such policies or training.
The Tribunal also noted that fairness dictates that if an employer does not have effective policies and mechanisms to address harassment, it is unreasonable to dismiss a harassment complaint on the basis that the complainant failed to report it.
In AA’s case, the Tribunal concluded that TST did not have an effective policy in place that would trigger the obligation for him to report the harassment he faced. Therefore, the Tribunal found that AA was not required to formally report and notify TST of the harassment.
In 2019, AA took a four-week vacation to Iran. During his stay, he developed severe swelling in his lower extremities, diagnosed as a circulatory system failure possibly linked to heart or kidney problems. He was advised not to fly until a heart issue was ruled out.
Due to his medical condition, AA requested an extension of his leave, initially citing flight restrictions due to sanctions as a reason. He later explained that he feared ridicule at work if he disclosed his true health issues.
TST denied his leave extension request and eventually terminated his employment for job abandonment when he failed to return to work or provide acceptable documentation for his absence. AA communicated his health issues and provided evidence of his condition, but TST did not accept this as valid documentation.
AA was later cleared to travel by a cardiologist and returned to Ottawa. He contacted the Union for support regarding his dismissal. The Union filed a grievance but later withdrew it. He then filed a human rights complaint with the Commission and a complaint with the Canadian Industrial Relations Board against the Union, alleging a breach of its duty of fair representation. His complaint to the CIRB was unsuccessful.
Throughout this period, AA’s communication with TST was limited, and he felt undervalued and unfairly treated. He expressed his frustration in emails to TST management, highlighting the unfair treatment and indicating his intent to file a human rights complaint.
“On its face, (AA’s) disability was a clear factor in his termination,” the Tribunal said. “TST said it terminated him because he was absent from work for three consecutive days after his vacation leave ended, without first securing a leave of absence. (AA) was prevented from returning to Canada to work on account of his disability and the first physician’s order that he not fly. His disability was thus a factor in the decision to terminate him for failing to present himself for work.”
AA argued that his termination was racially motivated. But the Tribunal found no evidence it was connected to the decision to fire him.
“I find that aside from (AA’s) failure to present himself at work for three consecutive days, TST’s decision to dismiss him was largely influenced by the managers’ perception that he tried to mislead them,” the Tribunal said.
“They no longer put any faith in him, despite the evidence of his disability that he presented afterwards. TST’s perception of him was unfortunate and ultimately unwarranted, but I am not convinced on a balance of probabilities that race, national or ethnic origin, or religion were factors in the perception.”
Remedies and compensation
The Tribunal ordered TST to pay AA a total of $44,731 in lost wages for the period from his termination date to March 7, 2021. Additionally, TST is required to calculate and compensate for pension contributions and the difference in vacation pay entitlements for the post-termination period.
For the pain and suffering experienced due to TST’s discriminatory practices, AA was awarded $17,000, along with $12,000 for willful or reckless discrimination.
Interest on all compensations will accrue from November 1, 2019.
For more information, see Abadi v. TST Overland Express, 2023 CHRT 30 (CanLII)