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Canadian Judicial Opinions Regarding the Sikh Religious Identity

Sidhu v. Fraser Pulp Chips Ltd.

IN THE MATTER OF the Human Rights Act S.B.C. 1984, c. 22
(as amended)
AND IN THE MATTER OF the hearing of the complaint

Between
Jagit S. Sidhu, complainant, and
Fraser Pulp Chips Ltd., respondent

[1985] B.C.C.H.R.D. No. 6

British Columbia Council of Human Rights
Victoria, British Columbia
D.J. Wilson

Decision: March 14, 1985.
(61 paras.)

Appearances:
Erwin Golke, representing the complainant.
George D. Scott, representing the respondent.

REASONS FOR DECISION

1 This hearing was regularly constituted pursuant to section 14 of the Human Rights Act to hear and determine a complaint filed by Jagjit S. Sidhu, Complainant, against Fraser Pulp Chips Ltd., Respondent.

2 The hearing convened in Burnaby, British Columbia, January 22, 1985. The original signed Complaint Form, the Notice of Hearing, the Particulars of Allegation and the Notice of Designation of the member conducting the hearing, Douglas J. Wilson, were filed as exhibits 1 through 4.

3 Mr. Jagjit S. Sidhu's Complaint Form read in part:

I allege that I was discriminated against in respect of employment (refused re-employment after recovering from compensatible injury) because of my race, place of origin and religion without reasonable cause, contrary to the Human Rights Code of B.C.

4 Mr. Sidhu testified that he is 34 years old and that he came to Canada in 1976. His Canadian work experience began in Quesnel, where he had a variety of jobs in the lumber industry including working on the greenchain, operating a sorter and feeder and a planer and, as a millwright, repairing saws and machines in his area. He said he also supervised 8 workers. His training at the time included 30 weeks training as a welder, 10 weeks each year for 3 years.

5 Mr. Sidhu began employment with Fraser Pulp Chips Ltd. in 1979, working on the greenchain. He described the greenchain as a circular operation bringing various sizes and lengths of lumber on an almost continuous basis to be sorted and graded. He said he would grade and then pile the lumber on buggies according to size and, when the buggies were full, either he or the forklift operator moved the buggies away from the greenchain area. He said it was a noisy area and he blew a whistle for help when required and the foreman, the spareman or the forklift driver would respond.

6 Mr. Sidhu said that there was a day and an evening shift in the 1979/80/81 period of time and that, on his shift, ten of seventeen workers were Indo Canadian, but none of them were practising Sikhs.

7 In January, 1980, Mr. Sidhu and a Mr. Gill, who also worked at Fraser Pulp Chips, became practising Sikhs and began wearing the appropriate Sikh dress to work. This included turbans, beards and other religious symbols such as kirpans, which are small daggers, sashes to suspend the Kirpans, hair combs, and bracelets.

8 Mr. Sidhu's co workers laughed and directed jokes at him and his co-worker, calling them "funny heads" and asking why they didn't shave their beards and cut their hair. Mr. Sidhu said this behaviour continued for approximately one week then eased up. The foreman, Ed Shanahan, asked about the changes in Mr. Sidhu's appearance and his religious symbols then expressed concern about the dagger. Mr. Sidhu said the foreman didn't like the beard or the turban and that he, Mr. Sidhu, offered to tie up the beard in a net and strap the kirpan sash tightly to his body, wear the bracelet under his glove and do anything else if the foreman was concerned about safety. However, he said the foreman was not concerned about safety, but about the dagger causing a fight or being used in a fight. Mr. Sidhu said he then offered to wear the dagger in his turban.

9 Mr. Sidhu said that he was rated as a good worker in 1979, offered an "under the table raise", called a "good worker, a muscle man" by the foreman and never received complaints about his work when he was clean shaven. He said that the attitude of the foreman and the mill owner changed dramatically after he became a practising Sikh and cited several incidents.

10 He said the foreman would not send help when Mr. Sidhu asked for it and the spareman was given instructions not to help although he had always helped move heavy lumber prior to that time. Mr. Sidhu said the sparemen used to "drop around from time to time". Mr. Sidhu said he used to be able to call for help on his own initiative but, after April when he blew the whistle for help, the foreman would come and would be very angry because he blew the whistle and said that only he, the foreman, could decide if help was needed.

11 Mr. Sidhu said that on many occasions the foreman made the following statements: "go home if you can't do the work alone"; 'You call for nothing, you B.S. me"; "If you ever atop the chain without permission then go home."

12 Mr. Sidhu described instances where 4" by 8" lumber was too heavy, a switch was broken, the buggies were full or stuck and a forklift was needed to move them but the foreman would only say "go home if you can't do your job".

13 Mr. Sidhu went on to describe 6" by 6" timber falling off the chain, timber too wet and heavy for one person to lift, arriving for his shift and finding two or three full buggies waiting to be moved, and being asked to lift and carry four chains up a slope.

14 Mr. Sidhu also said he was denied a day off on his birthday by the foreman and that none of these incidents ever happened at Fraser Pulp Chip Ltd. prior to 1980 when he was clean shaven, without a turban and wearing no religious symbols.

15 Mr. Sidhu described signs chalked on the greenchain wall by a co worker referring to him as "a goat sucker" and other names and said that when he complained about the signs to the foreman he was told to keep quiet. He said he then complained to Lyle Brown, the mill owner, who said he would fire anyone making signs. Mr. Sidhu said his co workers hated his religion and life style but that he had to keep quiet because he needed the job. He said he complained to Lyle Brown about the foreman discriminating against him because of his religion but in cross examination, Mr. Sidhu became unclear as to whether he complained about the foreman discriminating against him on a religious basis or complaining about the foreman "pushing him too hard". Mr. Sidhu said that Lyle Brown did nothing to help him.

16 Mr. Sidhu injured his small finger on his right hand on July 16, 1981, while piling lumber. He was given medical treatment and therapy and was in receipt of Workers' Compensation Board wage loss benefits for 7 1/2 months. He said that Mr. Brown called him two or three times in the fall of 1981 and asked him to come back to work, but because he was receiving treatment for his finger injury, he refused. Mr. Sidbu said that he told Mr. Brown he would come back to work if he could be the welder or the forklift driver or the cut off saw operator, but Mr. Brown only offered work on the chip saw or green chain using one hand.

17 Mr. Sidhu said he received a Disability Certificate, (Exhibit #5), on February 12, 1982 from Dr. Bawa Randhawa which stated that he could return to work with no restrictions, but, when he brought this to Mr. Brown, he was refused employment as Mr. Brown said he could see no improvement in his finger. Mr. Sidhu said Mr. Brown called him "a baby Hindu". Mr. Sidhu noted that other workers had returned to work after on the job injuries and they had got jobs such as cut off saw operator which he had asked for.

18 Mr. Golke led Mr. Sidhu through a great deal of evidence in regard to his wage loss over the period July 16, 1981 to October 19, 1982, when Mr. Sidhu's U.I.C. benefit stopped. Mr. Sidhu told of receiving 3/4 of his salary from Workers' Compensation Board wage loss benefits from July 16 to February 12, 1982, then unemployment insurance benefits of $275.00 every two weeks. Mr. Sidhu testified that he earned wages at a laundry in addition to Workers' Compensation Board subsidy in November and December of 1981 and that he worked as a pruner in the Okanagan Valley for sixteen weeks in the fall of 1982 and also drove a tractor in Abbotsford at $7.00 per hour.

19 Mr. Sidhu was cross examined by Mr. Scott who asked him to demonstrate the dexterity in his small finger. Mr. Sidhu could not straighten his small finger easily but could grip the edge of the table. Mr. Sidhu agreed with Mr. Scott that he received $6,600.00 settlement from Workers' Compensation Board on November 17, 1982, (Exhibit #8). The settlement was for a 1.5 percent of total disability. Mr. Sidhu also admitted a previous disability in the same finger and said the finger had been operated on in Quesnel and had improved as a result.

20 Mr. Sidhu was asked if he ever went home when the foreman said "go home if you can't do the job", and he said no he had "worked harder because he needed the job". Mr. Sidhu said that he was presently working as a cut off saw worker and millwright and was also lifting blocks.

* * * * *

21 Mr. Scott began the Respondent's case by stating there was no religious or racial discrimination and the issue was not the injured finger.

22 Several witnesses were called who had long experience in the lumber industry, Patrick McKerlick, Charles Gerow, and Thomas D. Jones all owned mills in the Fraser Valley. All three looked at the Complainant's finger and said that they would not hire Mr. Sidhu for safety reasons. Another witness, Donald McKinney, a millwright at Fraser Pulp Chips Ltd. for the past twenty years said that he would not hire Mr. Sidhu for the same reason. Three of the four witnesses had lost a finger or part of a finger as a result of accidents in mills and they claimed that an injured finger would be more subject to injury because a great deal of dexterity was required to work safely on the greenchain.

23 Mr. Edward Shanahan, the foreman at Fraser Pulp Chips Ltd., testified that he did not treat Mr. Sidhu any differently than other workers under him and said he told all workers "to go home if they couldn't do the job" in order to get them to work harder.

24 Mr. Shanahan, who had 30 years experience in the lumber industry, said he never made Mr. Sidhu carry four chains up a slope, that there would be no reason to ask anyone to do this and it would take an exceptional person to be able to carry four chains which weight approximately 15 kilograms each. Mr. Shanahan said that he filled out the Workers' Compensation Board injury form and noted the previous injury to Mr. Sidhu's small finger.

25 Mr. Shanahan said he did help Mr. Sidhu or send the forklift driver to help when needed but the mill rule was that only he as the foreman could call for help. Mr. Shanahan said he did not discuss religious symbols with the complainant, but had talked to "another person" about Sikhism, but really didn't know anything about either the religion or the symbols.

26 Laurel Glanfield, the accountant at Fraser Pulp Chips Ltd. produced employee lists showing the attrition of workers since 1981 (Exhibits #10 and 11) and a summary of full and part time workers on the day and evening shifts (Exhibit #12) 1981 to 1984. She gave testimony that while no one was hired full time since February 12, 1982 there had been a few part time hirings since then and several of the remaining employees had less seniority than Mr. Sidhu.

27 Lyle Brown, the owner of Fraser Pulp Chips Ltd., gave evidence that he had worked in mills for 33 years and had been a mill owner for the past 20 years. He said that more than half his employees in that time were Indo Canadians. Mr. Brown said Mr. Sidhu received no different treatment before or after he became a Sikh and that he has no concerns regarding anyone's race or religion.

28 Mr. Brown said that he would have liked to rehire the complainant but would not fire anyone else to make a job opening. He said it was his policy to rehire injured workers, if possible, but felt the injured finger was a safety problem to Mr. Sidhu as well as co workers if he were to return to the greenchain.

29 Mr. Brown said he called Mr. Sidhu back to work in the fall on at least two occasions and explained that, if he could get Mr. Sidhu to work, even if he worked onehanded, it would have cut his Workers' Compensation Board costs. Mr. Brown said that when the complainant finally said he was ready for work in February of 1982, the only possibility of a job was on the greenchain, and this position was filled by Mr. Gill.

30 Mr. Brown denied calling Mr. Sidhu "baby Hindu" and said every one of his workers have a nickname of some kind and Mr. Sidhu had become known as "baby finger". Mr. Brown said after the "horseplay" and the chalk signs on the greenchain wall he got tough with everyone and threatened to fire anybody chalking up signs about the complainant or Ed Shanahan, the foreman, who was also a target of derogatory signs.

* * * * *

31 Mr. Golke called Mr. Bant Brar, a part owner of a Mission shake mill who is now Mr. Sidhu's employer, as a rebuttal witness. Mr. Brar said Mr. Sidhu works well and is not a safety hazard. In cross examination Mr. Brar said that Mr. Sidhu worked mainly on the cross cut saw and didn't lift blocks too often.

32 In closing, Mr. Golke said discrimination was seldom admitted and before Mr. Sidhu became a religious person he was rated a good worker, whereas after he became a practising Sikh the attitude of his fellow workers, the foreman, and management became markedly changed. Incidents began to happen to Mr. Sidhu that 'had not happened before. Mr. Golke said this change of attitude was as a result of religious discrimination and names such as "baby Hindu", "funny head", "goat sucker", and remarks about Mr. Sidhu's religious symbols, beard 'and turban became common at the Fraser Pulp Chips Ltd. mill.

33 Mr. Golke compared Mr. Sidhu's testimony with that of the foreman, Ed Shanahan, noting the differences. Mr. Golke pointed out that Ed Shanahan first testified that he did not talk about religious symbols with Mr. Sidhu but later said he did talk to "another person about the symbols".

34 Mr. Golke said the foreman's attitude changed towards Mr. Sidhu after he began wearing a turban and beard and the issue to consider was the credibility of Mr. Sidhu and Mr. Shanahan.

35 Mr. Golke said the finger could not have been a problem, there had been little change in the finger before or after the injury. He asked why Mr. Brown called the complainant in the fall of 1981 and offered him jobs on the greenchain if the injured finger posed a safety problem. Mr. Golke said the injured finger was not a concern in September or October of 1981 and Fraser Pulp Chips Ltd. had taken other employees back after long periods of time off on Workers' Compensation. Mr. Golke said that the Fraser Pulp Chips Ltd. should have made a job for the complainant because there were ten employees now working with Fraser Pulp Chips Ltd. who had less seniority than the complainant and he cited Exhibits 10, 11 and 12.

* * * * *

36 Mr. Golke said that it was difficult to point to concrete issues in matters of discrimination but the complainant's injured finger was not an issue. He said that Mr. Brown took no notice of his client's complaints of religious discrimination and he asked for an award to the complainant of lost wages and expenses.

37 Mr. Scott began his submission saying he would not defend against religious discrimination because Mr. Sidhu had not proved his case. He said the issue was that because of a declining lumber market Fraser Pulp Chips Ltd. had reduced their workforce by more than one third and there was no job for Mr. Sidhu in February of 1984. Therefore, there was no discrimination of any kind.

38 He said Mr. Sidhu had not been harshly treated, that he had received an individual assessment of his injured finger and that his treatment at Fraser Pulp Chips Ltd. was not based on a class characteristic. Mr. Scott said that Fraser Pulp Chips Ltd. hires a majority of employees with similar class characteristics as Mr. Sidhu and that Mr. Gill was also a practising Sikh and that he now had Mr. Sidhu's old job.

39 Mr. Scott said that seniority was not an issue, the respondent was not required to fire someone to make room for Mr. Sidhu. In order to accommodate him, Fraser Pulp Chips Ltd. would have had to fire the welder or the cut off saw operator, as Mr. Brown's conclusions were that these jobs were the only safe jobs for Mr. Sidhu. Mr. Scott said Fraser Pulp Chips Ltd. was not required to rehire injured workers but has a policy of rehiring whenever possible.

40 Mr. Scott contended that Mr. Sidhu related everything to his new religion and that the foreman never sent him home. Mr. Scott said Mr. Sidhu complained to Lyle Brown regarding Nr. Shanahan's "pushing him" but Mr. Shanahan's testimony was that he pushed everyone and told all workers to "go home" in order to get them to work harder.

41 Mr. Scott pointed out that Mr. Brown stopped the chalk sign writing of derogatory comments about Mr. Sidhu and Mr. Shanahan. Mr. Scott contended that Mr. Sidhu was truthful, his symbols and new mode of dress which he wore to work did invite fellow worker's comments but contended there was no evidence of religious discrimination. Ten of the seventeen workers on his shift when Mr. Sidhu worked at Fraser Pulp Chips Ltd. were Indo Canadian and at present, ten of seventeen workers still employed at the Fraser Pulp Chips Ltd. are Indo Canadians.

42 Mr. Scott questioned Dr. Bawa Randhawa's expertise regarding disabilities and the kind of work that was done in the saw mill, particularly the greenchain. Mr. Scott pointed out that even Mr. Sidhu didn't say he could work on the greenchain.

43 Mr. Scott said that poor manual dexterity is the primary cause of injury on greenchain jobs and said that the Workers' Compensation payout of a 1.5 percent of total disability, $6,600.00, was evidence of a significant disability in Mr. Sidhu's finger.

44 However, he said the thrust of his defence was that there was no job at the time. In regard to the question of a genuine disability, Mr. Scott quoted Cook v. Noble, Preysionzuiuk and Tranquille Hospital, Ministry of Human Resources and said that the respondent had not acted unreasonably by relying on medical evidence. In this case the Respondent relied on the Workers' Compensation Board in regard to Mr. Sidhu's finger disability.

45 In closing, Mr. Scott said that, if the chairman should find against Fraser Pulp Chips Ltd., then there should be no past wages found for Mr. Sidhu because there was no proof of lost wages established.

46 Mr. Golke said that damages flow; they were not a penalty but compensation and the different ways of calculating wage loss was not an issue but his client should receive compensation.

* * * * *

47 The relevant section of the Human Rights Code is Section 8 which reads:

8. (1) Every person has the right of equality of opportunity based on bona fide qualifications in respect of his occupation or employment ... and, without limiting the generality of the foregoing,

(a) no employer shall refuse to employ, or to continue to employ, or to advance or promote that person, or discriminate against that person in respect of employment or a condition of employment; and

(b) no employment agency shall refuse to refer him for employment,

Unless reasonable cause exists for the refusal or discrimination.

(2) For the purposes of subsection (1),

(a) the race, religion, colour, age, marital status, ancestry, place of origin or political belief of any person or

class of persons shall not constitute reasonable cause;

48 1. I find that the Complainant did not establish proof of religious discrimination.

49 Mr. Sidhu said Mr. Shanahan, the foreman, discriminated against him after he became a Sikh but Mr. Sidhu's evidence relates more to work issues. The foreman gave evidence that he "pushed everyone" by telling them to "go home" in order to get them to work harder. Mr. Sidhu was asked by Mr. Scott if he ever went home and he replied, "no, I worked harder. I needed the job". There was also evidence of a declining lumber market and resultant worker attrition at Fraser Pulp Chips during this period which gives credence to Mr. Shanahan's evidence of pushing everyone .

50 Mr. Sidhu complained of discriminatory signs and name calling with the result that Mr. Brown talked to everyone and that there were no more signs and name calling ceased.

51 2. Mr. Sidhu's evidence does not support his complaint of discrimination because of his race or place of origin. The fact that Mr. Brown has always had a majority of his workers who are of a similar race as Mr. Sidhu, favours the Respondent's statement that he has never been concerned about the race of his employees.

52 Mr. Sidhu said Mr. Brown called him a "baby Hindu". Mr. Brown said he referred to Mr. Sidhu as "baby finger". Mr. Sidhu's command of the English language is such that he required an interpreter for the hearing and therefore, it is probable that he misunderstood Mr. Brown's remark. In these circumstances I accept Mr. Brown's explanation.

53 Both parties said the injured finger was "not an issue" and then introduced considerable evidence and argument about this "non issue".

54 The Complainant was asked on at least two occasions to go back to work, even one handed, in the fall of 1981 but he refused because of his finger injury.Then in February of 1982 Mr. Sidhu said he could work and Mr. Brown assessed his finger and said he saw no improvement and that Fraser Pulp Chips Ltd. had no jobs that would not make Mr. Sidhu easy prey to further injury.

55 Mr. Scott called four witnesses in addition to Mr. Brown and Mr. Shanahan who said Mr. Sidhu's finger would make him unsafe to himself and others if he returned to the greenchain. Mr. Scott said they were "experts" because of their long experience in the lumber industry. I find their evidence to be "impressionistic" as described by Professor Dunlop (Ontario Human Rights Commission and Bruce Dunlop and Harold E. Hall and Vincent Gray vs. The Borough of Etobicoke). In this case scientific evidence from a qualified medical vocational expert would be needed to conclude that Mr. Sidhu's finger injury would present a safety problem on the greenchain.

56 Mr. Golke said the finger was not an issue and asked why would Mr. Brown want Mr. Sidhu to work in the fall of 1981 if the finger was a safety hazard? Mr. Golke said there had been little change in the finger before or after the injury. But Mr. Golke's argument is two edged because if the finger was not an issue, then why didn't Mr. Sidhu go to work in the fall?

57 7. Mr. Sidhu alleged he was refused reemployment, after a compensatible injury, but did not establish that there was a job vacancy on February 12, 1982. The employment records introduced by Fraser Pulp Chips Ltd. show that no fulltime hiring has taken place since February 12, 1982. There was no obligation on the part of the Respondent to consider Mr. Sidhu's seniority and Mr. Brown discharged any other obligation to rehire Mr. Sidhu when he on at least two occasions offered Mr Sidhu employment on a one handed basis in the fall of 1981.

SUMMARY:

58 I have included a lengthy review of Mr. Sidhu's evidence, but for the reasons listed above, I did not find proof of the alleged discrimination in regard to his race, place of origin and religion.

59 I do find that the Respondent did not adequately assess Mr. Sidhu's ability to perform his former job. However, in the circumstances of this case the assessment was irrelevant in that i agree with the Complainant and Respondent who both said that the injured finger was not the issue.

60 Mr. Sidhu has failed to establish a prima facie case that there was a refusal to rehire. On the contrary he was offered employment twice in the fall and then when he sought employment in February there is proof that no vacant positions existed or have existed since that time. Consequently, there could not have been a refusal.

61 Therefore, I find this complaint is not justified and pursuant to section 14(1)(d)(i) of the Human Rights Act, I hereby dismiss the complaint.

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