The New Brunswick Labour and Employment Board has dismissed a complaint of sexual orientation discrimination filed by a worker against his former employer, Easy-Kleen Pressure Systems Ltd., and a co-worker.
The decision concluded that the complainant, S.T., failed to prove that either respondent violated the Human Rights Act.
S.T., a gay man and advocate for LGBTQ+ rights, began working at Easy-Kleen’s Sussex, N.B., facility on August 30, 2021. Hired as a production line worker assembling electric motors for pressure washers, he was subject to a six-month probationary period. The complaint alleged that the co-worker subjected S.T. to discriminatory comments and harassment based on his sexual orientation, ultimately leading to his termination on October 14, 2021.
The Board’s Chairperson, David A. Mombourquette, presided over the hearing held on January 30 and 31, and March 15, 2024. S.T. represented himself, while Easy-Kleen was represented by the company’s Production Manager. The co-worker represented himself.
In his testimony, S.T. cited several incidents involving the co-worker. He claimed that he made a remark implying S.T. should know every ABBA song—a reference he interpreted as an allusion to his sexual orientation. Another incident involved the co-worker allegedly saying “listen here boy” during a workplace disagreement, which S.T. contended was a derogatory term aimed at gay men.
The co-worker denied that his actions were motivated by S.T.’s sexual orientation. He stated that his comments were either general questions posed to a group or related to work performance issues. Regarding the ABBA song, he testified that he simply asked the group if anyone knew the name of the song playing and was unaware of any connection between ABBA and the LGBTQ+ community. He acknowledged saying “listen here boy” but denied any discriminatory intent, stating he was unaware the term could be considered a slur against gay men.
The production manager testified that S.T.’s termination was solely based on performance issues and his inability to accept constructive feedback, not his sexual orientation or plans to participate in a media interview about LGBTQ+ issues. She noted that Easy-Kleen employs other members of the LGBTQ+ community and has a zero-tolerance policy for harassment. She cited an instance where another employee was terminated for making inappropriate comments toward a gay co-worker.
The Board found inconsistencies in S.T.’s testimony, particularly concerning the alleged incidents with his co-worker. Video evidence from October 1, 2021, contradicted S.T.’s claims that he had moved his tools, slammed a wrench on the table, or spat at him during their confrontation.
“Mr. Tingley’s lack of credibility and the reliability of his testimony were significantly diminished,” the decision stated. “He either exaggerated or fabricated some of his allegations to cast Mr. Mason in the most negative light possible.”
The Board also noted that S.T. did not report any concerns about discrimination to Easy-Kleen’s management before his termination. “At no point prior to the October 14 termination meeting did Mr. Tingley make any statement to (the production manager) or anyone else in management about any adverse treatment at work that he believed was related to his sexual orientation,” the decision read.
On the issue of termination, the Board accepted the production manager’s testimony that the decision was made due to S.T.’s continued performance issues and was unrelated to his sexual orientation or upcoming media interview. The Board acknowledged that employers can terminate probationary employees without notice or reasons, provided there is no discriminatory intent.
“Given Mr. Tingley’s continued deficiencies and refusal to accept the internal co-worker feedback process, it is understandable why (the production manager) decided to terminate his employment prior to the completion of the probation period,” the Board concluded.
The Board emphasized that while S.T.’s advocacy for LGBTQ+ rights is commendable, the evidence did not support his claims of discrimination. “He has failed to establish that either (his co-worker) or Easy-Kleen subjected him to adverse employment consequences because of his support for the LGBTQ+ community or because of his sexual orientation,” the decision stated.
For more information, see Tingley v Easy-Kleen Pressure Systems Ltd., 2024 CanLII 100982 (NB LEB).
