Employer had credible, non-discriminatory reasons for decisions
An Ontario public service worker’s complaint of discrimination in a job competition and transfer following a temporary placement has been dismissed by the Ontario Public Service Grievance Board.
It’s not a surprising result, as employees have a significant onus to prove that an employer’s decision that negatively affects them was made for discriminatory reasons, says Christopher Achkar, an employment lawyer and principal at Achkar Law in Toronto and Ottawa.
“Human rights cases, to begin with, are hard to prove if the employer proves another legitimate reason for why they did what they did - as much as they tell applicants that all they have to prove is that discrimination was a factor,” says Achkar. “Without that connection [between a protected ground and the employer’s decision], then these cases tend to get thrown out quite easily.”
Temporary assignment for correctional officer
The worker was a correctional officer holding a staff sergeant position at the Toronto East Detention Centre (TEDC) since 2015. In 2017, there was a job competition for three permanent staff sergeant positions at the Toronto South Detention Centre (TSDC), to which the worker applied.
The job posting referred to specialized knowledge and leadership skills, but it didn’t mention that previous staff sergeant experience was required. However, the Ontario Ministry of the Solicitor General, the employer, had a stated recruitment process that involved “hiring the candidate whose qualifications best meet the requirements of the job.”
The mere allegation of discrimination does not suggest an automatic connection between a prohibited ground of discrimination and a job opportunity, according to a lawyer.
The worker was interviewed but he wasn’t successful. However, he was offered and accepted a 12-month temporary assignment as a staff sergeant at the TSDC beginning in September 2017.
When the temporary assignment neared its end, the worker submitted an expression of interest for a six-month temporary assignment as a deputy superintendent of operations at TSDC, asking if his scores from the 2017 job competition could be used to fit him into a full-time staff sergeant position there.
Management agreed to a temporary assignment agreement for the deputy superintendent position for six months.
However, according to the worker, management did not support him in dealing with a corrections officer who wouldn’t follow his direction. He also claimed that a senior manager improperly accused him of wrongdoing and senior management made baseless comments about his posture during meetings.
The worker claimed that he wrote reports about the incidents and told his superior in a meeting, although he was unable to say when. His superior denied the worker told him about any problematic behaviour from colleagues or subordinates.
An employer that was aware of a worker’s injuries had a duty to inquire whether they affected her performance, the Alberta Human Rights Tribunal ruled.
Claims of discrimination
In May 2019, the temporary assignment ended and the worker was told that he would be returned to his “home” position at TEDC. Around the same time, one of the panel members for the 2017 job competition told him that he had received the highest score at 89 per cent. The three successful candidates had scored between 52 and 72 per cent. Two of the successful candidates were racialized while one was white.
According to the worker, the threshold in a job competition is usually 70 per cent, which two of the three successful candidates failed to reach. However, the evidence indicated that the threshold often changed and was not disclosed to candidates.
A couple of months later, the worker filed a complaint with the Ontario Public Service Grievance Board, alleging that he was removed from the temporary assignment – he claimed that several colleagues in acting positions who were not South Asian like him were not directed to return to their home positions - and denied the full-time staff sergeant position for discriminatory and bad-faith reasons. He also alleged that he experienced discriminatory and improper treatment when the employer failed to support him, undermined him, hindered his ability as a manager, and ignored him when he came forward about his treatment by co-workers.
The ministry countered with reports from several staff that the worker sometimes had difficulties dealing with co-workers and some female subordinates complained about how he spoke to and treated them. According to the witnesses, the worker’s first reaction was usually to reprimand or seek discipline to deal with real or perceived insubordinate behaviour, even though he was counselled to try a different approach.
The worker’s superior during the six-month assignment said he was aware that the worker had “soft skills” issues with subordinates and they tried to coach him on being less abrasive. He said the comment about the worker’s posture in meetings came after a deputy regional director commented about the worker’s lack of professionalism during formal meetings.
The ministry also said that TEDC was experiencing operational staffing pressures with several vacancies, so it needed the worker to return there.
The BC Human Rights Tribunal awarded nearly $1 million to a former corrections officer who was subjected to a pattern of racial discrimination at work.
Legitimate job requirement
The board found that it was not improper for the ministry to select candidates for the staff sergeant position with test scores of less than 70 per cent, since the evidence indicated that the threshold wasn’t always the same and could depend on various factors. It was also not the only factor, as the evidence was that experience was a legitimate requirement and the official recruitment process stipulated hiring candidates with the best qualifications for the job.
In addition, the three successful candidates had staff sergeant experience while the worker did not. However, the worker was offered and accepted a temporary assignment that would help give him some of that required experience, said the board, noting that it was the employer’s right to determine the requirements for a position as long as it was reasonable.
The board found that the employer had “a credible, non-discriminatory explanation for its hiring decision” for the permanent staff sergeant positions and there was no discriminatory reason that was a factor.
The employer didn’t specify in the job posting what it would take to be a successful candidate, so while it let them get away with varying the requirements as they would like, the lack of transparency could have spelled trouble, according to Achkar.
“That does open things up for interpretation - had they explained [to the worker] that the reasons for his failure is they focused on experience, which is what they did more than scores of the tests, then it would be thought less as a discriminatory decision,” he says. “So maybe less disclosure upfront, which they already did, but explaining a bit more about the results and how they got to the results, as long the results are absent of any discriminatory reasons.”
A Saskatchewan court dismissed a worker’s racial discrimination complaint due to an absence of any examples.
Personality conflicts not harassment
As for the worker’s allegation that the ministry didn’t respond to his complaints, the board noted that the worker did not invoke the Workplace Discrimination and Harassment Policy at any time and personality conflicts did not mean there was harassment or bullying. In addition, harassment consists of repeated and persistent comments or behaviour that can cause harm and the perpetrator ought to have known it could cause harm, the board said.
The board found that it was appropriate for management to counsel the worker on his approach to subordinates, as the evidence indicated that he had troubled relationships with many them. The worker didn’t like the responses he received from management, but that did not mean he was harassed, the board said.
The board also found that the ministry had a credible, non-discriminatory explanation for returning the worker to his home position, which was free of any bad faith, arbitrariness, or other discriminatory motives. It noted that the worker was not removed from the temporary assignment, but rather it came to a natural end. With the staff shortage at TEDC, it made sense to move him back, the board said.
The board dismissed the worker’s complaint, finding no evidence of unfairness, bad faith, or discrimination from the ministry.
The defense an employer could have against a complaint like this is to be able to show that its actions and decisions were not discriminatory, and the way to do that is through extensive documentation, says Achkar.
“Document the reasons for why you're making the decisions that you are making and show that nothing is purely arbitrary or discriminatory,” he says. “The more transparent employers are with employees about the decisions they reached, potentially the less questions they would have.”
“Communication with employees is also extremely important to avoid these types of cases,” adds Achkar. “Because for better or for worse, for the employer the best scenario would be to avoid legal action altogether.”
See Paul and Ontario (Ministry of the Solicitor General), Re, 2023 CarswellOnt 9406.