Employee made harassment complaint, but employer was already questioning employee’s ability to do job properly
An Ontario employee who made a workplace harassment complaint was not a victim of a reprisal and instead was fired because she wasn’t doing her job well, the Ontario Labour Relations Board has ruled.
Alicia Allen was the housing manager of Eamon Park Housing Co-Operative, a housing corporation in Concord, Ont., that rents housing units to its members. Eamon Park is run by an elected board of directors and usually has three employees — the administrative assistant, the maintenance co-ordinator, and the housing manager. Allen was hired to be the housing manager on July 25, 2016, with a three-month probationary period.
A short time into Allen’s stint, the administrative assistant found she often had to repeat herself when discussing things with Allen and found she didn’t seem to understand the accounting software used at Eamon Park. She also noticed Allen didn’t interact with members of the co-op who came into the office — something she considered odd.
At the end of August 2016, Allen was still having problems understanding the procedures and a deterioration of the work relationship with the assistant began to show.
About one month later, Allen decided to change the practice of when deposits were taken to the bank from Mondays to a different day. The assistant said it could be a problem because members would expect the money to come out of their accounts on Mondays. The discussion became heated and led to Allen slamming a door.
Allen complained to the staff liaison for the board of directors, who convened a meeting. According to the staff liaison, Allen made fun of the administrative assistant and acted unprofessionally during the meeting, which prevented anything from getting accomplished. The assistant complained about Allen’s interaction with members and inability to understand the accounting software, both at the meeting and in emails to the board of directors.
Mistakes in financial records
It was also discovered at the meeting that the financial report couldn’t be approved because there were outstanding questions Allen couldn’t answer, as well as issues with the monthly reconciliation of cheques. Over the course of six meetings from August to October, Allen continued to have difficulty answering financial questions.
Allen complained to the board about the way she was treated by Eamon Park’s external bookkeeper. Though she had little interaction with him, Allen said he ignored and “barked” at her.
The board of directors met on Oct. 19 to address Allen’s complaints about the bookkeeper. Allen provided a document outlining her concerns about the bookkeeper and the administrative assistant, though she referred to the assistant as “missy,” which offended the assistant.
The board decided the bookkeeper wouldn’t be allowed back to the office and the accounting firm would have to send a different bookkeeper. It also identified further issues with the financial reports, but Allen blamed these on the bookkeeper. One of the board members investigated and discovered Allen had missed a cheque and had created an input in the spreadsheet for bank errors.
The board member felt Allen had tried to cover up her error and was creating an additional expense to balance the books. A review of earlier financial reports found more errors. Her concerns increased with each board meeting in which Allen couldn’t answer financial questions.
The board decided on Oct. 6 to extend Allen’s probationary period so it could properly evaluate her performance.
The next day, Allen was informed of the decision to extend her probationary period. Allen objected, arguing her employment contract didn’t allow for such an extension. One week later, Allen made a complaint to the Ontario Ministry of Labour that resulted in the ministry issuing orders to Eamon Park to conduct a workplace violence risk assessment, investigate Allen’s incident with the bookkeeper, and develop workplace violence and harassment policies.
The board of directors scheduled a performance evaluation for Allen on Oct. 28, which largely featured questions about financial procedures. However, Allen refused to answer any questions until the staff liaison completed a questionnaire she had prepared — a questionnaire with a confrontational tone and questions such as: “Again, without prejudice to the use of the term probation period, are you aware that under labour law/case law, abuse of this provision is frowned upon and is considered an act of dishonesty so severe that the courts have punished employers by award of significant punitive damages against them with awards to even employees found to be still on probation?”
The performance evaluation did not proceed and the board of directors decided to terminate Allen’s employment since she was unwilling to undergo the review, along with concerns over her ability to supervise staff and handle Eamon Park’s finances.
Allen filed a complaint alleging she was terminated as a reprisal for her workplace harassment complaint.
The labour relations board agreed that Allen’s complaint was an attempt to enforce her rights under the Ontario Occupational Health and Safety Act and she believed she was being harassed. However, it was clear that there were many concerns over Allen’s job performance, said the board.
The board found Allen had conflicts with both the administrative assistant and the bookkeeper, had difficulty understanding the accounting software, and made errors in the co-op’s financial reports. While Allen argued she hadn’t been told about any concerns with her performance, the board disagreed, pointing to the board of directors’ questioning at each meeting and the failure to pass at least one financial report. In addition, Allen was told her probationary period was being extended, which a reasonable person should understand meant Eamon Park had concerns about her performance.
The labour relations board also found that when Allen filed her complaint with the ministry, the board of directors already had reason to examine her performance more carefully. When Allen refused to participate in her performance evaluation without her own questionnaire being completed, it was an “act of defiance” that “tipped the balance in favour of ending the employment relationship,” the labour relations board said.
The board determined Allen wasn’t performing at the expected level and her refusal to participate in the evaluation was “the final act needed to convince the employer that the employment relationship was not tenable.” There was no evidence Allen’s dismissal was a reprisal in any way related to her complaint, the board said in dismissing her claim.
See Allen v. Eamon Park Housing Co-Operative Inc., 2017 Carswell 16000 (Ont. Lab. Rel. Bd.).
