'The employer was quite confident that it didn't need evidence to demonstrate that there was no discrimination'
The Ontario Grievance Settlement Board has dismissed a worker’s grievance that she was denied the opportunity to fill temporary job vacancies because of her race.
It’s a welcome decision for employers who may be faced with such allegations when awarding job opportunities, says Lorenzo Lisi, leader of the Workplace Law Group at Aird and Berlis in Toronto.
“[The decision] emphasizes the fact that a mere allegation does not suggest, number one, that there's an automatic connection between a prohibited ground of discrimination and a job opportunity,” says Lisi. “And number two, that triggers the fact we're going to look carefully at this to determine whether or not that standard [of proof of discrimination] has been met.”
Long-time employee
The worker, who was a racialized woman, was a personnel clerk for the Ontario Ministry of the Solicitor General at the Toronto South Detention Centre (TSDC). She started working for the ministry in 1989.
In 2014, the worker competed for an assistant business administrator position, which involved supervising financial transactions. She was unsuccessful and was told that she “did very badly.”
A year later, another racialized woman was successful in competing for a similar position. The worker didn’t apply this time, as she felt that “I know what is going to happen.” She was growing frustrated at not being given developmental opportunities.
In May 2015, the ministry offered another employee – a non-racialized male referred to as MK – an opportunity to work as a temporary regional finance clerk, which was one level above the worker. MK was already working as a finance clerk at the TSDC.
None of the racialized staff at the TSDC were asked if they were interested in the finance clerk job. All of them, including the worker, had more seniority than MK, but the worker in particular did not have the experience or knowledge of the systems.
In December 2018, MK was given another opportunity to work as a business administrator without competition. It was a position that the worker had asked several times to fill, and each time she had been told that the position would be posted for competition.
MK left the position in May 2019 and the worker asked again for the opportunity, but she was again told that the job would be posted for competition.
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Worker told jobs would be posted
A short time later, another racialized woman who was an assistant business administrator was given an acting opportunity as a business administrator. The worker asked to fill that colleague’s vacant position as a developmental assignment and she was told it would be posted. However, it was not.
The ministry also appointed a non-racialized employee to be an acting personnel clerk. The employee was a friend and family member of TSDC management and the worker was asked to train them. Four months later, there was a competition for the position and this employee was offered the job.
MK returned to the TSDC in June and was reinstated as an assistant business administrator. He left in March 2020 and the worker requested to be assigned to the acting position, but she was told it would be posted for competition. This time, the position was posted and the worker applied for it, but she withdrew for personal reasons. The two successful candidates were both racialized women.
In the meantime, a non-racialized person was hired on a temporary basis without a competition. The worker believed that she was a family member of someone in management.
The worker filed a grievance alleging that the ministry systematically discriminated against her on the basis of race by filling temporary vacancies without competition and keeping her from career development opportunities. The union accepted that the ministry was not required by the collective agreement to post or hold competitions, but it alleged that the hiring decisions were discriminatory.
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Employer confident
Without providing its own evidence, the ministry filed a non-suit motion that the evidence of the worker and the union wasn’t sufficient for the grievance to succeed. It argued that there wasn’t enough evidence to show that race was a factor in its staffing decisions and the grievance should be dismissed.
It’s interesting that the employer filed a non-suit motion while reserving the right to submit evidence if the motion didn’t work, says Lisi.
“What it really shows is that the employer was quite confident that it didn't need evidence in order to demonstrate that there was no discrimination with respect to the awarding of any of the positions,” he says. “When you see a non-suit motion, it means that they don't think [the other party] has anything.”
The board referred to the legal test for discrimination, which required a ground protected by the Ontario Human Rights Code, adverse treatment, and proof that the protected ground was a factor in the adverse treatment.
There was no doubt that the first two parts to the test were met, as the worker was a racialized person and the decisions to not place her in temporary acting positions created an adverse impact, the board said.
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Focus on non-racialized colleague
The board noted that a chunk of the worker’s argument had to do with MK receiving multiple opportunities. However, the evidence showed that the worker didn’t have relevant experience for the finance clerk position and she had done poorly in a recent competition for a similar position, while MK built up experience with each subsequent position. A comparison of his professional experience with the worker’s provided sufficient business reasons to place MK in the temporary positions that the worker sought, said the board.
“I think the basis of her complaint was really MK more than anything else, along with the fact that she was told that it would be posted,” says Lisi. “The employer’s arguments were, ‘Just because one individual who's not racialized received opportunities that a racialized woman did not get, that's not sufficient to establish that she was denied on the basis of race.’”
“There was evidence of a racialized woman who was one of two business assistants and was given an acting opportunity as a business administrator - that wasn't posted, and a racialized person got the job, and then when it became vacant, they didn't post it again, but the incumbent had been a racialized woman,” adds Lisi.
The board found that there was no race-based pattern discernible in the distribution of acting assignments – mulitple racialized women were appointed and won competitions for positions. In 2020, two racialized women were successful in a competition for another business administrator position.
The board noted that the worker was repeatedly told that the positions she sought would be posted, only to have them given to MK or not be posted, so it was understandable that the worker was frustrated. While this could be poor communication by the employer, there was no evidence to support a conclusion that race was a factor, the board said.
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No requirement to post positions
“If they had the ability under the collective agreement not to post it, they shouldn't have said anything,” says Lisi. “That's my one criticism of the way they handled it - particularly given that this MK had experience that [the worker] didn't have and they knew that in a head-to-head competition, just from a qualifications perspective, he would have been the preferable candidate.”
The board dismissed the grievance on the basis that there was no proof, on a balance of probabilities, that race was a factor in the denial of temporary acting positions to the worker.
It’s important for employers to have clear and concise guidelines for awarding internal positions to help defend against potential complaints, says Lisi.
“When jobs are either temporary assignments or are posted or awarded, most collective agreements have very specific rules around whether they need to be posted,” he says. “But employers should also be very aware that those decisions don't have any kind of hidden or implicit bias.”
Lisi adds that this is a good example of why transparency is helpful.
“It's not so much whether there was an actual bias or discriminatory intent, it's whether there's a perception of the process and whether it's fair or unfair,” says Lisi. “So the thing that stands out here is that transparency can help both sides.”
See OPSEU and Ontario (Ministry of the Solicitor General) (Walji), Re, 2023 CarswellOnt 5363.
