Arbitrator dismisses most grievances, but upholds one
A community patrol officer who worked for the Toronto Community Housing Corporation (TCHC) needed almost two years off work after she heard a supervisor promise to "get rid of her” to another colleague.
Janice Gordon began working with TCHC in 2005. By 2007, she worked as a special constable providing security for residents in community housing.
On June 21, 2010, Gordon, who is black, was driving in a patrol vehicle with fellow officer Derek Anderson, when supervisor William Henry addressed him via the car radio system.
Gordon testified she heard Henry say “don’t worry we will get rid of her.”
She became upset and emotional and immediately visited her doctor Frank Woo. He advised her to take time off work due to stress.
Henry was given a four-shift unpaid suspension for his behaviour. A letter given to him said as a supervisor he “ought to have known that your comments would cause harm to employees.”
During an arbitration hearing, Gordon claimed that she felt Henry was making a threat of harm or death toward her, but Henry said the statement was made because he believed she was a “problem” employee who should be transferred.
In spring 2011, Dr. Woo advised Gordon could return to the workplace, but she could not remain in her present unit due to her perceived persecution from other workers. As well, she should not work evenings and her return should be gradual, beginning with a three-day work week for the first five weeks back on the job.
TCHC began an effort to accommodate Gordon by offering her a job in another unit.
But on August 18, psychiatrist Dr. Cheryl Rowe in a letter said due to Gordon’s psychological state, “(she) is currently unable to work in any capacity.”
On Feb. 8, 2012, human resources representative Pat Milana began another process of offering Gordon a different job with TCHC.
Gordon eventually accepted — “under duress” due to her worsening financial condition — a position as a clerk, with a return to work on July 25. She wrote an email to TCHC promising to work five hours per day, three days a week as per her doctor’s accommodation orders.
She appeared at her new workplace on Wednesday and wrote an email just before 2 p.m. advising her boss that she would return for her next shift on Friday morning.
When she didn’t show up for work on Thursday, TCHC terminated her employment via email: “You left the workplace on July 25, prior to completing your scheduled shift, and you did not report to work on July 26, without authorization and/or without legitimate explanation for doing so.”
The union, Ontario Public Service Employees’ Union, Local 529, immediately grieved the firing.
Arbitrator Mary Ellen Cummings upheld the termination grievance but dismissed eight other grievances that were filed by Gordon alleging various levels of mistreatment by management over the previous few years.
“At no time did TCHC warn Gordon that a failure to work the full-time hours that the employer expected would result in discipline,” said Cummings. “When Gordon left work on the Wednesday after 5 hours, telling her manager she would return on Friday, the employer did not warn Gordon that if she failed to show up on Thursday she would be fired.”
To uphold the firing, said Cummings, “would be an unjustifiable rejection of the progressive discipline system, a cornerstone of Ontario’s labour relations regime.”
But the arbitrator found that Gordon’s overall behaviour was less than exemplary.
“Gordon obstinately refused a perfectly reasonable request to return equipment related to a position she had not held for 18 months. Moreover, Gordon filed a grievance complaining about the employer’s reasonable request, asserting discrimination on the basis of race, with no facts in support. This is but one example of how incredibly frustrating it has been for the employer to deal with Gordon. Even the simplest of workplace interchanges devolve into unsubstantiated and unjustified allegations of discrimination,” said Cummings.
Reference: Toronto Community Housing Corporation and Ontario Public Service Employees’ Union, Local 529. Mary Ellen Cummings — arbitrator. Donald Jarvis and Evan Daikov for the employer. Katherine Ferreira for the employee.
