Excerpt from the OH&S Canada magazine (Nov. 2015)

An independent human-rights Board of inquiry has determined that a woman who was accused of being a repeat shoplifter by staff of food retailers Sobeys in Tantallon, Nova Scotia was a victim of discrimination.

On May 26, 2009, Andrella David was stopped at a grocery-store check out by a Sobeys employee, who accused her of being a “known shoplifter in the store,” according to a statement by the Nova Scotia Human Rights Commission (NSHRC) issued on October 9, 2015. David was told that the store’s surveillance footage had captured previous instances of her shoplifting, that she was being watched and that if it happened again, they would press charges. There is no indication that David had attempted to shoplift.

David demanded to see the videotape in an attempt to prove that she was not the same person who had been caught shoplifting in the surveillance footage. She was taken to an office with surveillance equipment as staff tried to locate the videotape, which was believed to have captured David committing theft before May, 2009. David eventually left the store and later try to rectify the situation with Sobeys senior management, which excepted the allegations made by its employee over David’s word. She filed a complaint with the NSHRC, alleging that Sobeys had discriminated against her when it had falsely accused her of stealing from the store.

Board chair Marion Hill’s written decision concludes that David was discriminated against on the basis of her race and/or colour and perceived source of income, both of which are protected under the “Nova Scotia Human Rights Act.” “During the course of the evidence provided in this proceeding, it was clear that race played a role related to the Complainant’s (David) adverse treatment,” Hill writes. “Ms. Barnhill, the Sobey’s employee, gave evidence that, all things being equal, had the Complainant been white, she would never have been approached.”

Hill found that “racial profiling” had been a factor in the treatment of David. The decision describes how the Sobeys staff member relied heavily on poor-quality video in her identification of David. “The most distinguishing feature that could be positively identified from the pictures and the video evidence was the fact that the alleged shoplifter was a black woman with dark hair,” Hill writes.

While Hill except the argument that shoplifting, which results in serious financial loss, is a concern for Sobeys, “the respondent’s continuous identification of the complainant as a known shoplifter is unjustified.” Hill has reserved decision on remedy; those arguments were expected to be heard on October 27-28, 2015.

My opinion

Discrimination cannot be accepted at any place of employment and public facility. There has to be legislation to cover this and Ontario had their own in place in 2010.

Section 32.0.1 to 32.0.9, inclusive, as part of the Ontario Occupational Health and Safety Act, (OHSA) states,

Policies, violence and harassment

32.0.1 (1) An employer shall,

(a)  prepare a policy with respect to workplace violence;

(b)  prepare a policy with respect to workplace harassment; and

(c)  review the policies as often as is necessary, but at least annually.  2009, c. 23, s. 3.

Written form, posting

(2) The policies shall be in written form and shall be posted at a conspicuous place in the workplace.  2009, c. 23, s. 3.

Exception

(3) Subsection (2) does not apply if the number of workers regularly employed at the workplace is five or fewer, unless an inspector orders otherwise.  2009, c. 23, s. 3; 2011, c. 1, Sched. 7, s. 2 (3).

Section Amendments with date in force (d/m/y)

Program, violence

32.0.2 (1) An employer shall develop and maintain a program to implement the policy with respect to workplace violence required under clause 32.0.1 (1) (a).  2009, c. 23, s. 3.

Contents

(2) Without limiting the generality of subsection (1), the program shall,

(a)  include measures and procedures to control the risks identified in the assessment required under subsection 32.0.3 (1) as likely to expose a worker to physical injury;

(b)  include measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur;

(c)  include measures and procedures for workers to report incidents of workplace violence to the employer or supervisor;

(d)  set out how the employer will investigate and deal with incidents or complaints of workplace violence; and

(e)  include any prescribed elements.  2009, c. 23, s. 3.

Section Amendments with date in force (d/m/y)

Assessment of risks of violence

32.0.3 (1) An employer shall assess the risks of workplace violence that may arise from the nature of the workplace, the type of work or the conditions of work.  2009, c. 23, s. 3.

Considerations

(2) The assessment shall take into account,

(a)  circumstances that would be common to similar workplaces;

(b)  circumstances specific to the workplace; and

(c)  any other prescribed elements.  2009, c. 23, s. 3.

Results

(3) An employer shall,

(a)  advise the committee or a health and safety representative, if any, of the results of the assessment, and provide a copy if the assessment is in writing; and

(b)  if there is no committee or health and safety representative, advise the workers of the results of the assessment and, if the assessment is in writing, provide copies on request or advise the workers how to obtain copies.  2009, c. 23, s. 3.

Reassessment

(4) An employer shall reassess the risks of workplace violence as often as is necessary to ensure that the related policy under clause 32.0.1 (1) (a) and the related program under subsection 32.0.2 (1) continue to protect workers from workplace violence.  2009, c. 23, s. 3.

Same

(5) Subsection (3) also applies with respect to the results of the reassessment.  2009, c. 23, s. 3.

Section Amendments with date in force (d/m/y)

Domestic violence

32.0.4 If an employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.  2009, c. 23, s. 3.

Section Amendments with date in force (d/m/y)

Duties re violence

32.0.5 (1) For greater certainty, the employer duties set out in section 25, the supervisor duties set out in section 27, and the worker duties set out in section 28 apply, as appropriate, with respect to workplace violence.  2009, c. 23, s. 3.

Information

(2) An employer shall provide a worker with,

(a)  information and instruction that is appropriate for the worker on the contents of the policy and program with respect to workplace violence; and

(b)  any other prescribed information or instruction.  2009, c. 23, s. 3.

Provision of information

(3) An employer’s duty to provide information to a worker under clause 25 (2) (a) and a supervisor’s duty to advise a worker under clause 27 (2) (a) include the duty to provide information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour if,

(a)  the worker can be expected to encounter that person in the course of his or her work; and

(b)  the risk of workplace violence is likely to expose the worker to physical injury.  2009, c. 23, s. 3.

Limit on disclosure

(4) No employer or supervisor shall disclose more personal information in the circumstances described in subsection (3) than is reasonably necessary to protect the worker from physical injury.  2009, c. 23, s. 3.

Section Amendments with date in force (d/m/y)

Program, harassment

32.0.6 (1) An employer shall, in consultation with the committee or a health and safety representative, if any, develop and maintain a written program to implement the policy with respect to workplace harassment required under clause 32.0.1 (1) (b). 2016, c. 2, Sched. 4, s. 2 (1).

Contents

(2) Without limiting the generality of subsection (1), the program shall,

(a)  include measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor;

(b)  include measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;

(c)  set out how incidents or complaints of workplace harassment will be investigated and dealt with;

(d)  set out how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law;

(e)  set out how a worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, will be informed of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation; and

(f)  include any prescribed elements. 2009, c. 23, s. 3; 2016, c. 2, Sched. 4, s. 2 (2).

Section Amendments with date in force (d/m/y)

Duties re harassment

32.0.7 (1) To protect a worker from workplace harassment, an employer shall ensure that,  

(a)  an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;

(b)  the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, are informed in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation;

(c)  the program developed under section 32.0.6 is reviewed as often as necessary, but at least annually, to ensure that it adequately implements the policy with respect to workplace harassment required under clause 32.0.1 (1) (b); and

(d)  such other duties as may be prescribed are carried out. 2016, c. 2, Sched. 4, s. 3.

Results of investigation not a report

(2) The results of an investigation under clause (1) (a), and any report created in the course of or for the purposes of the investigation, are not a report respecting occupational health and safety for the purposes of subsection 25 (2).  2016, c. 2, Sched. 4, s. 3.

Section Amendments with date in force (d/m/y)

Information and instruction, harassment

32.0.8 An employer shall provide a worker with,

(a)  information and instruction that is appropriate for the worker on the contents of the policy and program with respect to workplace harassment; and

(b)  any other prescribed information. 

I would be concerned, for any African Canadians who may be subjected to discrimination, at the same workplace.

I realize that this was a customer issue. Sobeys headquarters, however, should have been more involved with this attack on a customer and attempted to complete some sort of sensitivity training to all employees and initiate a new corporate directive on this sort of behaviour going forward.

HRS Group Inc. has a great team that can help you with all your health and safety needs including ‘Discrimination’. Contact Deborah toll free at 1-877-907-7744 or locally at 705-749-1259 We can also be reached at info@hrsgroup.com

Ensure your workplace is a safe place.

Remember – In Ontario, “ALL Accidents are Preventable”

‘Work’ and ‘Play’ safe.

Daniel L. Beal 

CHSEP – Advanced Level
CEO & Senior Trainer
HRS Group Inc.