Canadian-Guyanese loses discrimination petition

A Canadian-Guyanese man’s petition to the Ontario Human Rights Tribunal, alleging discrimination against him in employment on the basis of race, colour, ethnic origin and age, was recently dismissed.

Roystan Mangal, who has been living in Canada for the past 30 years, filed the action against the Molson Toronto Brewery on June 8, 2009. He said he was denied opportunities to be trained for and take on work in areas of the plant other than the one in which he worked, while white temporary employees were offered training. He also stated that he was harassed by a white temporary employee and that his supervisors did not investigate or make an attempt to verify his claim of harassment. He stated too that the company had made no attempt to clean a smell of urine from a dark, poorly ventilated area close to where he worked. Mangal also alleged that he was not re-hired in February 2009, after a layoff, while other white temporary employees were rehired.

The brewery denied any discrimination in training, layoff, and rehiring decisions, and asserted that it had made appropriate attempts to clean the work area and investigate the spillage of urine. It also said that it had conducted an appropriate investigation into the applicant’s allegations of harassment, and that it had taken appropriate follow-up action. His action, adjudicated by Judith Keene, was dismissed on March 24.

In his petition, Mangal identified himself “brown and a visible minority” and as “a Canadian citizen (30 years) of East Indian origin, from Guyana.” He worked with the brewery from March 6, 2006 to October 27, 2006, and from February 19, 2007 to November 21, 2008.

According to the ruling, despite a total period of employment of close to 30 months, the applicant was classified throughout his employment as a “temporary” employee. While the company’s current collective agreement includes a clause that limits the amount of time in which an employee can be classified as “temporary” to six months, this was not in place during Mangal’s employment. During his tenure, the company could employ temporary employees beyond six months without reclassification or termination of employment. Under that arrangement, Mangal was initially employed for eight months, and later employed for close to 22 months.

Mangal’s “temporary” classification meant that because he was not a “permanent” employee, he could not accrue seniority. With this restriction in place, the tribunal found that the company gave undisputed evidence that assignments of work in the plant were heavily affected by seniority. The company‘s evidence, which was not disputed by Mangal, was that permanent employees were allowed to select work assignments according to seniority. The remainder of the work, which was affected by seasonal fluctuations, was assigned to temporary employees. This generally limited the work that was available to temporary employees.

It was pointed out that Mangal did not claim that persons whose personal characteristics were similar to his were disproportionately represented in the company’s pool of temporary workers. In fact, in his evidence he characterised most of the temporary workers, including those on the line where he worked, as white. He also did not claim that persons whose personal characteristics were similar to his were disproportionately represented in the group of workers affected by a layoff.

Meanwhile, in relation to Mangal being denied training, the adjudicator found that the company’s system for training temporary employees in areas other than line load at the relevant time was based on the skills of the line load employee, whether the supervisor had confidence in the employee (reliability, punctuality etc), and whether the employee had asked for a training opportunity. She said given the lack of written criteria for training opportunities and written performance assessments reviewed with each employee, it was possible in the company’s system that conscious or unconscious racism on the part of a supervisor could limit opportunities for training. However, there was insufficient evidence to conclude that this occurred.

The tribunal also found that reliance on a request by the employee for training as a criterion for granting training could effectively exclude employees whose cultural background militates against putting oneself forward for attention.  However, Mangal did not assert that his reticence was related to his ethnic origin or to any other ground cited. He offered no explanation linked to a ground of discrimination for having failed to ask for a training opportunity. “In the light of the above evidence, I cannot conclude that his race, colour, ethnic origin or age was a reason for the applicant’s failure to receive additional training during this period,” the adjudicator said.

In relation to his allegations of harassment by a white co-worker, it was found that Mangal asserted that the other employee was not disciplined and implied that this was because of his colour. However, the adjudicator said she found that neither Mangal nor the co-worker was disciplined, although both suffered adverse consequences related to the company’s conclusion that both were exhibiting inappropriate behaviour.

The tribunal also found that there is no evidence that Mangal’s race, colour, ethnic origin or age was a factor in the decision to include him in the layoff and the failure to rehire him in February of 2009.

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