HRTO: Allegations of “Newfie” remarks not enough to prove adverse impact

In Cribb v. Haakon Industries, the Human Rights Tribunal of Ontario (HRTO) dismissed an application by an employee who alleged that his former employer discriminated against him by making various comments about “Newfies.”

Details of the incident

The employee (who is from Newfoundland) alleged a colleague made racist comments towards him (not detailed in the decision) during a team meeting regarding expected shift changes. He said he could not work on a shift with the colleague as a result, and that he needed to stay on the same shift as his carpool buddy.

His manager and the manager of HR met with him to discuss his concerns about working with the colleague. He alleges that during this meeting, the HR manager made discriminatory comments about “Newfies.”

Shortly afterward, the manager met with both individuals to address the racist comments. The individual apologized and the employer understood the issue was resolved.

Shift changes were announced, and while the employee was not working with the alleged racist, he was also not on the same shift as his carpool buddy. He was displeased and swore at his manager. Based on this and other issues (which were not specified in the decision), the employer terminated him. The employee alleged that the HR manager made comments about “Newfies” during the termination meeting as well.

HRTO Ruling: No discrimination     

The employee filed a complaint with the HRTO alleging that the HR manager discriminated against him because of various comments she made about “Newfies.” He did not allege that the discrimination was the reason for his dismissal, and did not raise anything about the allegedly racist colleague.

The employee alleged that the HR manager said, “[N]ewfies do not have any rights with Human Rights. Everyone makes fun of Newfies and tells Newfie jokes,” and, “there’s 10 categories that come under the Human Rights and Newfies are not one of them.” He said the term “Newfie” alone is not racist and can be used between friends or during banter, but that saying “fucking Newfie” would be offensive.

At the hearing the HR manager disagreed and said she simply told him that she was not sure calling someone a “Newfie” was a racist comment. She also said she was not sure that being from Newfoundland was a human rights issue, but that using the term “Newfie” in a derogatory way was not acceptable in the workplace. She said she took the allegations regarding racism seriously and told the employee that while she wasn’t sure the allegations could fall within the HRTO’s mandate, he could check.

The HRTO accepted the HR manager’s version of the events, finding her credible and reliable and thinking it improbable that an HR professional would make the alleged statements, especially when the employee was complaining about racism by another colleague.

The HRTO added that even if it were to assume that being from Newfoundland was a protected human rights ground, the employee still had to prove that:

• the HR manager’s comments had an adverse impact on the employee, and
• the protected ground was a factor in that impact.

But the employee did not provide any evidence to demonstrate he was disadvantaged or adversely impacted. Again, the employee didn’t allege his termination was related to the comments about Newfies, and even specifically told the HRTO that the termination was “another court case” separate from his HRTO application, so the termination couldn’t be an adverse impact.  

Employer takeaways

This case demonstrates the importance of language, and how those of different cultural, ethnic or other backgrounds may interpret certain terms as discriminatory. To avoid human rights complaint, employers should tread carefully when addressing discrimination if they are unsure whether the conduct or incident would fit under the protected grounds. Although the HRTO didn’t explicitly decide whether being from Newfoundland falls under the protected grounds, it very well could be part of a person’s “place of origin.”

Employers should also ensure harassment and discrimination policies are clearly communicated to employees, so they understand what behaviour meets the threshold of discrimination under the Human Rights Code. Had this occurred here, perhaps the employee may not have started a complaint and could have addressed his concerns in another way.