Ontario worker's belief of discrimination not fact

Immigration officer for international opportunity based on workplace conduct, not sex or union membership

Ontario worker's belief of discrimination not fact

An Ontario-based immigration officer was not discriminated against when her application for work abroad was declined, the Federal Public Sector Labour Relations and Employment Board has ruled.

Paola Grosso was an immigration officer in Windsor, Ont., starting with the Canada Customs and Revenue Agency in 1989 and then with the Canada Border Services Agency (CBSA) when it was formed.

In 2007 and 2008, Grosso was the union local’s chief steward, so she had several meetings with management. The chief of the Windsor Tunnel, where Grosso was stationed, didn’t like her aggressive manner and sometimes didn’t get along with her during these meetings.

In January 2008, Grosso applied to the Foreign Assignment Process (FAP), the annual creation of a list of employees for selection to conduct immigration work in Canadian consulates and embassies abroad. She felt that she was “more than qualified” based on her experience and job performance.

However, she was informed that her FAP application was not being recommended because “she was not a team player and because she had demonstrated an inability to adapt to change.” The chief told her she wasn’t a suitable candidate, to which she replied he wasn’t qualified to make the judgment because he hadn’t worked with her. Grosso felt that she was being punished for being a strong female employee and her involvement with union activities.

She learned of a database in which supervisors made entries about employee performances, so she checked it and found entries about a couple of incidents in which she had made inappropriate comments or jokes. The chief had relied on these entries as proof that she didn’t demonstrate the abilities and personal requirements for the FAP. Although Grosso had good performance reviews, the chief considered them “cookie cutter” and didn’t consider them in his decision.

Grosso filed a grievance alleging that she was discriminated against on the grounds of sex and union membership.

The board noted that Grosso was a woman and an active member of the union, which were both personal characteristics protected by the collective agreement. She also suffered an adverse employment-related event when she wasn’t considered for the FAP. These were the first two requirements of the discrimination test.

However, the board found that there was no evidence that the worker’s protected characteristics were factors in the adverse impact. Although Grosso felt that the rejection of her application was punishment for her union activities and a male applicant was favoured over her, “belief is not proof,” the board said.

The board also found that the supervisor reports in the database were honest reports by the authors and related to the criteria for the assessment of the FAP application.

“The decision [the chief] reached was a reasonable one based on the information before him and it does not suggest that sex or membership or activity in the [union] was a factor in the adverse impact,” said the board in dismissing the grievance.

See Grosso v. Canada Border Services Agency, 2021 FPSLREB 125.

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