The grievor argued that she had been discriminated against because she was black and was a single mother. The arbitrator found that there had simply been many failures to communicate effectively with her supervisor.
A clerical worker said that her supervisor had harassed and discriminated against her over an eight-year period because of her race and family status.
The union grieved, alleging that the employer had failed to maintain a workplace free of harassment and discrimination.
S.C. was hired on contract to work as a clerk typist for a large municipality. In 1998 she became a full-time employee working as a receptionist in the Planning Department.
In 2002, S.C. was one of two receptionists working the service counter on the main floor.
S.C. complained to her new manager that the other receptionist (who had seniority) was not pulling her weight. S.C. said that it was falling to her to process the payment receipts because the other receptionist could not keep up.
S.C. said that the increased workload was creating stress. S.C. took two weeks sick leave.
When S.C. returned to work she discovered that she had been transferred to work upstairs in the building department call centre.
S.C. objected to the reassignment. However, she was informed that there were no other options for dealing with her complaints.
S.C. did not willingly accept the reassignment, which she viewed as punitive and discriminatory, though she did not grieve it.
Bitterness over reassignment
Nevertheless, apparent bitterness over the reassignment tainted the relationship between S.C. and her manager. After that, she assessed all his actions for potential evidence of racial animus (S.C. was described as black, born in Jamaica and a single mother).
In 2008 and in 2010, the union filed three grievances based on some 20 allegations of harassment or discrimination over an eight-year period.
The onus was first on S.C. to establish that she had been discriminated against on the basis of a prohibited ground identified in the Ontario Human Rights Code. In the event that a prima facie case of discrimination was made out, the onus would then shift to the employer to explain its conduct.
The test to establish discrimination, abuse or harassment in the workplace is an objective standard.
The Arbitrator pointed to the elements of workplace abuse and harassment as identified by Arbitrator Shime in Toronto Transit Commission v. Amalgamated Transit Union (2004):
“Abusive conduct includes physical or mental maltreatment and the improper use of power. It also includes a departure from reasonable conduct. Harassment includes words, gestures and actions which tend to annoy, harm, abuse, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands, or other unpleasantness. A single act, which has a harmful effect, may also constitute harassment.”
Failures of communication
S.C. relied on extensive notes to detail the incidents that formed the basis of her complaints. However, the Arbitrator observed that the notes were not contemporaneous but were in fact prepared later — in some cases years after the fact — in support of a workers’ compensation claim.
Moreover, there were inconsistencies between S.C.’s written allegations and her testimony as well as inconsistencies within the testimony itself, the Arbitrator said.
“[S.C.] has become highly invested in the circumstances surrounding her relationship with [her supervisor]. She was insistent and indignant about matters that, at worst, reflect failures of communication of the kind that occur regularly in busy workplaces. I found the grievor to be highly prone to exaggeration, and significantly lacking in insight regarding her role in, responsibility for, and reactions to events.”
S.C. alleged that her dietary restrictions had been intentionally overlooked with respect to staff pizza lunches. She charged that she had been excluded from emails and staff meetings. S.C. alleged that she was not properly awarded alternate pay rates when she filled in for other workers.
At one point, S.C. experienced some difficulties balancing her afterschool childcare needs with the requirement for building department staff to provide service until 4:30 p.m. S.C. felt the manager was not doing enough to accommodate her needs. She called him a “racist.”
The Arbitrator rejected all the allegations.
“I find that there is no evidence of a pattern of conduct from which it could reasonably be concluded that the employer, and specifically [the manager], discriminated against the grievor on the basis of any prohibited ground. At its worst, the evidence shows that there were various failures of communication for which the grievor bore some responsibility…”
Failure to understand work rules
S.C. failed to apprehend how work rules affected her circumstances. She came to harbour resentments based on misunderstandings — both of hers and her employer’s — workplace rights and obligations, the Arbitrator said.
S.C. did not understand the employer’s authority to reassign work within a classification and how the seniority rights of other workers and the duty to accommodate affected those decisions.
The Arbitrator also said that the allegations made out in S.C.’s third grievance failed to meet the standard of harassment set out in the Human Rights Code.
S.C. had overheard a conversation between colleagues where a story was told that employed a negative stereotype and some Jamaican patois. However, one of the participants in the conversation was also of Jamaican heritage.
The re-telling of the story in question may have been “unfortunate,” the Arbitrator said, but it did not amount to harassment.
There was no intent to offend S.C. and apologies were extended to her after it became clear that she had been offended.
The grievances were dismissed.
