Employer proved business reasons for elimination of job, suspension
An Ontario employer was able to prove that it did not subject a worker to reprisals for filing a harassment complaint when it eliminated her position and rejected her application for another job, the Ontario Labour Relations Board has ruled.
The worker was employed with the Toronto Public Library (TPL) since 2003. In 2009, she obtained her Masters in Information Studies (Library and Information Science) and TPL made her a librarian. In 2015, she was assigned the role of Chinese cataloguer.
Also in 2015, TPL put together a proposal for the development of an archive of the history and culture of Chinese-Canadians in Toronto. The proposal included an implementation phase using a service specialist librarian followed by the possible creation of an archivist position – a discipline involving working with original materials that must be preserved and requiring completion of a university program in archival studies. Although the proposal didn’t state what would happen to the services specialist role, but the intent was to replace it with the archivist role if funding permitted.
In 2017, the worker was given the special services position within the library’s special collections department along with responsibility assisting with the development of the Chinese Canadian archive (CCA). Although she wasn’t qualified as an archivist, TPL sometimes referred to her as one in external communications. Her duties involved certain archival tasks, but she worked under the direction of her managers, who had archivist qualifications and experience.
Job performance issues
There were some issues with the worker’s job performance, leading to several performance management meetings from 2019 to 2022. The worker received a “letter of direction” in February 2020 and a letter of discipline along with a paid “day of consideration” in May 2021 for refusing to work with her manager to set goals for the CCA, refusing to communicate and complete assignments within her job description, and not following direction to send her emails to her direct manager.
In the Spring of 2021, TPL learned of a new federal grant that would help it develop the CCA and hire a qualified archivist. Management started working on a job description in June.
Meanwhile, the worker continued to have issues with her managers and submitted a complaint under TPL’s Disclosure of Wrongdoing and Reprisal Protection Policy on June 29 alleging financial wrongdoing and diversion of donor funds intended for the CCA. On Aug. 6, TPL advised that an investigation found no wrongdoing.
The worker also submitted a workplace harassment complaint against her direct manager on July 25 and TPL hired an external third-party investigator.
On Aug. 16, the worker was given another letter outlining performance issues and expectations. Four days later, the job description for the archivist position was approved, which included the requirements of a graduate degree in archival studies, at least three years’ experience in archival arrangement, and expert knowledge of current archival descriptive standards.
In September, the worker met with managers to discuss her performance issues and she argued about the validity of their concerns.
In November, the investigator reported that the worker’s allegations were “unsubstantiated and without merit” and any conflict was “of [the worker’s] doing” and related to her performance failures.
Position eliminated
On Dec. 13, TPL advised the worker that her position was being eliminated in favour of the special collection archivist role within the CCA and she was free to apply. The worker applied in January 2022, but was not given an interview because she didn’t have a graduate degree in archival studies.
TPL gave the worker three possible librarian positions she could have for six months, during which she could apply for other positions and her wage rate would be protected for 24 months. However, she was suspended for one day on Feb. 9 due to her continued performance deficiencies and her failure to meet the deliverables given to her.
In June 2022, TPL hired an external candidate for the archivist position who had a degree in archival studies and could speak Chinese. The candidate didn’t have three years of archival experience, but she had experience in records management, which was related to archival work.
On Nov. 18, TPL advised the worker that she was being permanently transferred to a librarian position in the cataloguing department that was one pay grade lower.
Alleged reprisal
The worker filed a complaint alleging that the elimination of her service specialist role, the rejection of her application for the archivist position, and her one-day suspension were all reprisals for the harassment complaint against her manager and violations of the Ontario Occupational Health and Safety Act (OHSA). In addition, she argued that all of these combined formed “a continuum of reprisal.”
The board noted that s. 50 of the OHSA prohibited dismissal, discipline, suspension, or any penalty upon a worker – or the threat of such – because the worker acted in compliance with the OHSA or its regulations.
The board found that TPL eliminated the service specialist position for proper business reasons, as the evidence showed that TPL proposed the CCA plan that would eventually replace it with the archivist position in 2015, and TPL started planning the job description once it learned that funding would be available in June 2021, before the worker’s complaints were filed. Although the final description was approved after the complaint, “the wheels were in motion well before that,” the board said.
The board noted that the reason that the worker wasn’t notified that her position was being eliminated until December 2021, four months after the archivist position was formalized, was because TPL was waiting for the outcome of the investigation into her harassment complaint.
“The filing of a harassment complaint does not insulate one from a planned organizational decision that was previously made for valid business reasons,” said the board.
Legitimate business reasons
The board also found that, although TPL took a flexible approach with the experience of the successful candidate for the archivist position, it could not waver on the educational qualifications. That was a legitimate reason for rejecting the worker’s application that was not related to her harassment complaint, the board said.
As for the one-day suspension, there were extensive records of the worker’s performance issues going back to 2019 and they were frequently discussed with the worker. There was no evidence that the suspension was for reasons other than the stated performance issues, said the board, adding that the suspension was not grieved at the time.
The board determined that the worker was not subjected to any reprisals for exercising her right to submit a harassment complaint. See Hai Ying (“Annie”) Fan v. Toronto Public Library, 2023 CanLII 73671.
