Correctional Officer Anthony Simon wins grievance in respect to the Racist "KKK" Signs at the Toronto [Don] Jail

by S. Pieters, B.A.

(published in Your Ideas, Newsletter of OPSEU Region 5 Human Rights Committee, Volume 6, Issue 3, November 1998, pages 1 - 2)


Correctional Officer Anthony Simon filed a grievance with OPSEU in respect to the persistent racist activities that are tolerated by management at the Toronto [Don] Jail.

In his complaint Mr. Simon noted an instance in October 1996, where he "filed an objection to the physical conditions at the Toronto Jail which included 'KKK' graffiti on the walls of the institution." In response to his complaint Mr. Simon noted that management "did not address this violation" of his human rights and his right to work in a safe and healthy work environment.

Further on December 24, 1996, "KKK" graffiti was scrawled on the walls of the Toronto Jail and reported to management by Micky Badal and Nigel Mackey, Correctional Officers at the Jail. Mr. Mackey noted, "I wish to state that in my 13 years as a correctional officer I have not seen anything more pathetic than this"

On April 23, 1997, "KKK" graffiti resurfaced on the walls of the Jail. On this occasion Mr. Simon fell ill because of the negative effect of the racist environment on his health and safety.

A hearing into this matter was held in June 1998 and the Grievance Settlement Board released its decision on September 18, 1998 upholding Mr. Simon's grievance.

Vice-chair Nimal Dissanayake for the Board wrote that:

In the Board's view the displaying of signs or graffiti with racist implications or threats is a form of racial harassment of the individuals belonging to the racial group in question. The grievor, as a person of African descent, can therefore legitimately claim, as he does, that he was racially harassed by the existence of the "kkk" signs.

In the present case, the grievor brought to the attention of the Deputy Superintendent, Mr. Renzini, the presence of racist graffiti within the workplace. Mr. [Steve] Renzini promised to take action and get back to the grievor. However, Mr. Renzini did not act on it because he "forget". After approximately 10 days the grievor had heard nothing. No action had been taken. The racist signs remained on the wall. Therefore, he spoke to the Superintendent, Ms. [Connie] Mahaffy on October 17, 1996. While the discussion occurred in an informal way in the lobby of the institution, Ms. Mahaffy must have known that the grievor was raising a very serious issue. While the grievor could and perhaps should have acted more formally and stated his exact concern more clearly, in my view, that did not relieve the employer from its responsibility to investigate the situation. To say the least, the employer had the greater responsibiltiy to eliminate discrimination in the workplace the grievor did. The employer had a responsibility to take the initiative to seek out the necessary information once the concern was raised by the grievor.

...Ms. Mahaffy testified that no one in the management group indicated having seen any current racist signs. Based solely on that, she concluded that there was no evidence at the time to to support the grievor's allegations. She did so without asking the grievor for more information....

Another indication of the employer's lack of action is the evidence that the racist signs remained at the two locations at least until the grievor went on Christmas holidays, a period of over two months.... In the circumstances, the Board must accept the grievor's direct testimony that he personnaly onserved that the signs were still there when he went on holidays before Christmas. In other words, two racist signs remained for all to see for a period of two months....

...When the matter was raised, Ms. Mahaffy was quick to jump to the conclusion that the grievor's allegations were not supported by evidence. She did so without undertaking even a minimum inquiry. She failed to do the obvious - ask the person raising the concern for more information. Ask the grievor what he was taking about. It almost gives the impression that, rather than enlisting the grievors's assistance to fight a common enemy, she immediately took a defensive and adversarial stance.

[Ms. Mahaffy attitude and behavior in this case is consistent with the strong anti-black attitude that is prevalent in Toronto.

In the decision of the Ontario Court of Appeal in R. v. Parks,(1993), 15 O.R. (3d) 324, Doherty J.A. for a unanimous court observed that:

Racism, and in particular anti-black racism, is a part of our community’s psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism.
In R. v. Williams, the Supreme Court of Canada noted the ”insidious nature of racial prejudice” ....”buried deep in the human psyche” and that “racial prejudice and its effects are as invasive as they are corrosive.” (paras. 21-22).]

Mr. Renzini, another senior member of management, obviously did not treat the grievor's expression of concern with any degree of seriousness because he "forgot" to act on it. Mr. Mahaffy did not treat Mr. Renzini's omission with much seriousness either....

In the Board's view, the inadequacy of the employer's response is demonstrated by the shocking absence of documentation...The emphasis the Board places on documentation is not a mere technicality or formality. Firstly, proper documentation is an indication that the matter was treated seriously. Secondly, and more importantly, documentation serves a very necessary purpose. Superintendents and other members of management are likely to change from time to time at the jail. Unless incidents of racism (and other kinds of discrimination) and remedial action instituted are documented, a new manager would not be able to understand the real nature of the problem. For example, in the absence of documentation of past incidents of racism, a new manager may treat the act of racism as an isolated incident and not treat it very seriously. Similarly, unless remedial action implemented is documented, a future manager will be at a distinct disadvantage in deciding what action may or may not be effective.

On the basis of all of the evidence, the Board finds that the employer failed to comply with article 3.1 in that it failed to take reasonable action when the grievor raised the issue in October 1996. The Board declares that article 3.1 qwas thereby contravened.

In remedy for these violations of the complainant's rights under the Ontario Human Rights Code and the Collective Agreement the Board made the following orders:

1. That the Grievor be compensated for all loss of earnings during his period of absence between April 24, 1997 and December 24, 1997, together with interest.
2. That the Grievor be paid $1 000.00 by way of damages for the mental and emotional suffering he had to endure as a result of the employer's breach.



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