Ed Canning: Offensive mask ends 20-year career

Harley had worked at a large warehouse in the shipping department for 20 years. He was in a union, and by the summer of 2020, he was acting chief steward for the union. His responsibilities as chief steward included attending meetings with management when policy changes were taking place. When the pandemic first began, the employer instituted mandatory temperature checks upon entry to the building, enhanced sanitization stations, social distancing and staggered breaks.

In early July, however, a number of employees came down with COVID and had to self-isolate. Up until then, masks had been voluntary, but management decided to make them mandatory. When Harley learned of this as chief steward in a management meeting, he objected. He said wearing masks was a sensitive issue and a number of union members would not feel comfortable. He felt that a mandatory mask policy was unnecessary. Harley said he thought masks were an Asian thing" and further stated I am not a Muslim."

Notwithstanding Harley's response that morning, the policy was put in place and he was told he had to wear a mask or be suspended pending investigation.

Before he put it on, Harley found a big marker and wrote on his mask I am not a Muslim."

A co-worker was shocked when he saw it and cautioned Harley to be careful. When Harley's supervisor saw the mask, he told him the words on the mask were unacceptable and would not be tolerated. This went on for a couple of hours before one of the loops broke. When Harley got a new mask, he did not add any words. Harley was soon pulled into the office and questioned about his behaviour. He said the words were just a statement of fact. He also shared his belief that masks are a political and philosophical tool used to subvert the masses. It infringed on his personal liberty and freedoms. It was an attempt to roll back western values and culture.

Fifty per cent of the workforce were visible minorities. Management asked Harley how he thought others might feel upon seeing his mask, and he said that was not in his control. Harley was suspended pending investigation.

After being off for a week, Harley was called in for a second meeting and claimed to have seen the error of his ways. He realized, he said, that what he had written on his mask could be perceived as discriminatory and noninclusive. He said it was a moment of poor judgment and immaturity that could have been hurtful to others. The meeting ended and soon thereafter Harley was terminated. He grieved his termination. The union's position was that Harley's bad behaviour did not constitute just cause for termination after 20 years of loyal service, although it may have warranted some lesser disciplinary action.

The problem for Harley was that he could not deny being fully aware of the employer's policies on diversity and human rights. The arbitrator decided that Harley's choice in wearing that mask for two hours in the workplace was a deliberate, intentional, defiant and offensive act of misconduct, which justified the termination of his employment. The arbitrator did not buy Harley's claim that he was full of remorse and had seen the light. It was clear that the arbitrator was more concerned about the message that would be sent if Harley was able to maintain his employment after such offensive conduct.

Putting aside for a moment Harley's clear bigotry, employers in every province have an obligation to protect the health of all of their workers. In some instances, that includes hard hats or safety boots. Those are not seen by anyone as a political statement or some sort of oppression. Hard hats and safety boots will not avoid all injuries. Neither will masks in a pandemic. But they are all just safety equipment. Employers have every right to set reasonable rules about what safety equipment is mandatory.

Of course, Harley's primary offence was blatant discrimination that he somehow felt was justified because he was being oppressed by a piece of safety gear. Harley's attitude and those five words ended a 20-year career.

Ed Canning practises employment and human rights law with Ross & McBride LLP, in Hamilton, representing both employers and employees. Email him at ecanning@rossmcbride.com.For more employment law information: hamiltonemploymentlaw.com.