Discrimination claims part of worker's tendency to blame others
An Ontario worker was dismissed during her probationary period because she wasn’t working out, not because of her ethnicity or marital status.
The Eastern Ontario Regional Laboratory Association (EORLA) provided surgical pathology services to the eastern region of Ontario. Under EORLA’s collective agreement, new hires must complete a probationary period of 675 hours.
EORLA hired the worker as a pathology assistant (PA) — processing specimens taken during surgeries to be diagnosed — in November 2016. She started her probationary period on Nov. 7.
Early into her probation, the employee who was training the worker told the regional manager that the worker was sometimes late and not respectful of break times. As the worker moved into more complex work, she progressed slowly and had difficulty retaining information.
In February 2017, the regional manager met with the worker. The worker was agitated and blamed her lateness on transit and other people. The worker also said her trainer told her that her hair was smelly, and she should use the back door for entering and leaving. The regional manager told her she was expected to be on time, and he would look into her complaint.
The regional manager talked to the worker’s trainer, who explained that the worker had been advised of EORLA’s scent-free policy and another employee who had an allergy had complained about the scent of her hair. In addition, all PAs were supposed to use the back door of the lab. The regional manager found this had been explained to the worker privately and no one had used the term “smelly.”
In February 2017, the worker complained to the manager about her common-law partner and his parents — her partner was another PA and the son of an EORLA pathologist, a relationship she had revealed at her interview and been told wasn’t an issue. The worker wanted to show the manager texts to show the pressure she was under, but the manager declined to look at them as he felt it was inappropriate. He referred the worker to the employee assistance program.
The regional manager received reports from two other PAs in May stating that the worker wasn’t following directions and trying to work on specimens that were too complex for her. She also displayed aggressive behaviour and was deceptive about her experience, both towards other PAs and in a meeting with the manager.
A June 8 report detailed “a continuing pattern of slow production, lack of retention of knowledge, inability to follow instructions and continued late arrivals.” The worker was dismissed on June 21 for failing “to meet the expectations of your role.”
The worker grieved her dismissal, claiming discrimination on the basis of her ethnicity — saying the smelly hair remark was related to her being of Indian descent — and marital status because of her relationship with her partner and her attempt to call domestic abuse to the attention of the manager.
The arbitrator noted that the worker had a tendency to blame other people for her failings, taking no personal responsibility. Her inability to follow instructions, her chronic lateness, blaming her problems on others, and acting aggressively demonstrated an inability to adapt to the position. EORLA’s decision that she wasn’t the right fit for the job was reasonable and credible, said the arbitrator.
The worker’s claims of discrimination based on ethnicity didn’t hold up, as there was a legitimate reason for her trainer to discuss the smell of her hair and ask her to use the lab’s back door. As for the worker’s marital status, the manager knew about it before she was hired.
The worker didn’t raise the issue of domestic abuse to the manager and he wasn’t obligated to look at her texts, said the arbitrator in dismissing the grievance.
Reference: Eastern Ontario Regional Laboratory Assn. and OPSEU, Local 475. Judith Allen — arbitrator. Kecla Podetz, Tara Hristov for employer. Matthew Hrycyna for employee. Feb. 25, 2020. 2020 CarswellOnt 3764
