A demonstrated lack of leadership skills rather than either retribution for the previous human rights complaint he successfully pursued against his employer or discrimination based on his Muslim religion were responsible for a teacher’s repeated failures to be promoted.
Eminently qualified on paper, the grievor — a devout and observant Muslim — emigrated to Canada in the 1960s bringing with him a Bachelor’s degree in science and Masters’ degrees in chemistry. He obtained a Ph.D in chemistry from York University in 1971 and a teaching degree from Dalhousie University in 1976. He also acquired another specialty teaching certification from the University of Toronto in 1987. Hired by a large school board, the grievor began his teaching career in 1989.
Also in 1989, the grievor filed a human rights complaint against his employer claiming that he had been subjected to discrimination based on his place of origin and ethnicity. Following successful litigation in provincial courts, the employer’s application for leave to appeal to the Supreme Court of Canada was ultimately denied and in 2003 the employer was directed to pay damages.
Meanwhile, in 2001, after being unsuccessful in 15 attempts to land a supervisory job at different high schools within the board, the grievor filed another grievance alleging that his inability to secure a promotion was due to the fact that he was again being discriminated against and/or that his treatment amounted to retribution for his pursuit of the earlier complaint.
Superior academic qualifications
While the union acknowledged that the successful candidates who competed against the grievor were qualified, it was also true that the grievor had superior academic qualifications and seniority.
However, seniority was not a factor in this case because the competitions for supervisory jobs are not governed by the collective agreement. As well, while academic and teaching qualifications are important, the most important factors considered in competitions for supervisory jobs are leadership ability — identified as the ability to work with and lead a team of individuals — and a good recommendation from one’s supervising principal. The grievor did not score well on either of these fronts.
The grievor was the outside candidate in all the competitions and testimony from all but one of those who interviewed him indicated that he performed poorly in the interview process and every time refused the offer of “feedback” on his performance.
Persistent lateness
In addition, the grievor was not held in high regard by his principal, who had issues with the quality of his lesson plans and the grievor’s alleged persistent lateness, apparently associated with his return to class after prayer. The principal took the view that the grievor’s insufficient participation in the life of the school along with his complete lack of interest in committee work indicated a lack of aptitude for the responsibilities of leadership. The principal also alleged that the grievor had difficulty working with a younger female colleague who was in a supervisory role.
For its part, the union charged that the references provided by the principal were informed by his knowledge of the grievor’s earlier human rights complaints and constituted an act of reprisal. The union also took the position that if the employer was aware of the grievor’s consistently poor performance in interviews, it should have done more to provide him with mentoring opportunities in order to improve his performance.
The arbitrator dismissed the grievance saying that the reprisal argument did not hold up. The mere fact that the principal was aware of the earlier litigation was not enough to lead to a conclusion that his assessment of the grievor was tainted by a desire for reprisal. The key question, said the arbitrator, was whether or not the structure of the competition process adversely affected the grievor because of his age, ethnicity or faith. The arbitrator said that it did not.
A good reference was a key element and to be successful, a candidate needed his or her principal’s endorsement with respect to teaching skills and leadership abilities. A “simple test,” the arbitrator said, that must equally apply to any teacher regardless of religion, ethnicity or race.
While there may be some potential for corruption of this test in the event that the principal’s assessment of a particular candidate is tainted by discrimination or that the selection process betrays cultural biases that render the process defective, that was not the case here, the arbitrator said.
Legitimate performance issues
“We do not accept the suggestion that the performance issues that [the principal] had with the grievor are tied to or bound up with the grievor’s Muslim identity. If the grievor did have repeated episodes of lateness that were tied to breaks for prayer, if the grievor did in fact fail to respond to warnings from [the principal], these are legitimate performance issues and not in our view, evidence of discrimination.”
The grievor, said the arbitrator, had a perception of himself as the most qualified candidate who could not have done better in the interviews and needed no help to improve his performance. “In this respect it is clear that the grievor had a perception of himself that would appear to have been at odds with just about all who interviewed him …”
“[T]he … principal had legitimate and well founded concerns about the grievor’s performance as a teacher, his lack of demonstrated leadership skills or aptitude, and his failure to integrate into the life of the school community that justified on an objective basis, the negative references …”
