In the spring of 1987, the complainant, Gilles Fontaine, an HIV-positive man, was hired by the Canadian Pacific Railroad to work as a cook for a railroad crew of close to 20 men in a camp in Saskatchewan, Canada. At the time he was hired, Fontaine had been a cook for many years. He was under treatment for HIV and was totally asymptomatic. His treating physician informed him that there was no medical evidence that the infection could be spread in the course of his work.
Fontaine performed his cooking responsibilities well for a period of about one month. Subsequently, on the evening of 15 June 1987, Fontaine disclosed his HIV-positive status to a member of the crew. The news spread rapidly. The crew supervisor’s reaction to the disclosure contributed to a hostile working environment. The supervisor, Fowlie, told Fontaine that he was concerned that Fontaine could infect the crew, and refused to eat breakfast the morning following the disclosure. Fowlie thereby communicated to the rest of the crew that they could be at risk if they ate the meal that Fontaine had prepared for them. He also expressed concern for Fontaine’s safety, implying to Fontaine that the crew could have a violent reaction to the news that he was HIV-positive. These actions created such a hostile atmosphere that Fontaine quickly decided that he could no longer remain in the camp.
Decision and Reasoning
The Canadian Human Rights Tribunal found that there was no direct termination. However, the Tribunal concluded that Fowlie had created a hostile atmosphere that had compelled Fontaine to leave his employment. The Tribunal determined that, in the circumstances, Fontaine did not voluntarily quit but was constructively dismissed. The Tribunal noted that Fontaine’s co-workers had little awareness about HIV and modes of transmission. The Tribunal further observed that the employer’s “failure to have in place an express and clear policy about AIDS in the workplace has meant that employees such as Mr. Fowlie have been left to deal with these situations based on their own personal misconceptions”. The employer was instructed by the Tribunal “[to develop] and [disseminate] among its employees a written policy against discrimination of those with AIDS or the HIV infection to educate its personnel and prevent irrational fears that could otherwise arise in these circumstances.”