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In early July 2021, a Coca Cola employee (the “Applicant” and “Employer” respectively) was dismissed for wearing a bandana with the Confederate flag and the words “The South Will Rise Again” printed on it. When confronted, the Applicant removed the bandana without objection; he also denied that his decision to wear it had any racist intent. This all came shortly after another disturbing incident at a nearby facility: the discovery of a noose near where a person of color usually worked.
In Bottling Coca Cola Canada Inc. v. Teamsters, Local 213 (Davis grievance),
 BCCAAA # 32 (Noonan) – a carefully reasoned decision that recognized the racist overtones of the Confederate Flag, the offensive nature of the noose suspension, and that “small factual changes may have made this case very different”, Referee Randy Noonan substituted a five-day suspension for discharge.
The applicant wore the bandana with the Confederate flag instead of a new face mask provided to him by the employer (after the implementation of a mandatory mask policy to combat COVID-19). Another worker approached the Grievor’s supervisor and told him that the Grievor was wearing the bandana instead of the face mask. The supervisor asked the Grievor to remove the bandana and he did so without objection.
At a subsequent meeting regarding the incident, the Applicant confirmed that he was familiar with the Confederate flag. He also admitted that some people saw the flag as a symbol of hatred and segregation, but denied seeing the Confederate flag as such a symbol. He also claimed to have carried the flag at work on several occasions.
The incident was discussed among senior management of the employer, and a decision was made to terminate the Grievor’s employment. At the time of his dismissal, the Grievor was working as a forklift driver and had just over two years of service and a record without discipline.
In the letter of termination, the employer relied on the Applicant’s conduct with regard to the wearing of the Confederate flag.
The Employer also relied on the Grievor’s dismissive attitude towards a disturbing incident which had occurred a few weeks earlier at a facility adjacent to the Employer. An unidentified individual had fashioned a noose and hung it on a supervisor’s platform near where a person of color usually worked. Despite the fact that the Grievor was working at the facility at the time of the incident, the employer was unable to identify him as the person responsible for the noose suspension.
Arbitrator Noonan concluded that the employer could not rely on the Grievor’s dismissive attitude or other comments regarding the incident involving the noose. The decision before him was whether discipline was justified for carrying the Confederate flag and, if so, what level of discipline was appropriate.
The arbitrator concluded that some form of discipline was warranted, but that dismissal was an overreaction. He said that “today’s workers must be sensitive to issues of diversity and inclusion and must be careful not to act in a way that marginalizes, offends, hurts, denigrates or otherwise discriminates against others”. However, he also found that the Grievor did not intend to cause harm.
The arbitrator ultimately concluded that a suspension was appropriate to “clearly illustrate to the Grievor and others in the workplace the importance of cultural and anti-racist sensitivity”.
Take away food
Many employers continue to work hard to combat racism and promote diversity and inclusion in the workplace.
In this case, faced with a pair of disturbing incidents, which followed other racist incidents in previous years, the employer took decisive action and fired an employee for carrying a flag – or displaying a symbol. – who is considered by many to be racist. The employer was unsuccessful in the arbitration.
The decision in Bottling Coca Cola Canada Inc. indicates that even when an adjudicator recognizes the seriousness of racism in the workplace, labor protections apply and employers must still meet the high threshold required when it comes to investigating workplace misconduct and to terminate employment for just and reasonable cause. The following excerpt from Arbitrator Noonan’s decision provides a useful summary of the tension and balance to be found:
… The employer acted in pursuit of a noble cause – the elimination of racism and harassment in the workplace. This goal, however, does not detract from [the] the requirement that any discipline imposed must be fair and reasonable in all the circumstances. A measured approach is always appropriate and necessary.
Originally published by LexisNexis Labor Notes Newsletter.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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