HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Yvonne Sharras
Applicant
-and-
Rouge Valley Health System and Sheri Bredewold
Respondents
- and -
Canadian Union of Public Employees, Local 4365
Intervenor
CASE RESOLUTION CONFERENCE DECISION
Adjudicator: David A. Wright
Indexed as: Sharras v. Rouge Valley Health System
APPEARANCES
Yvonne Sharras, Applicant ) Glen Morrison, ) Representative
Rouge Valley Health System and ) Shane Smith, Counsel Sheri Bredewold, Respondents )
Canadian Union of Public Employees, Local 4365 ) Prassanna Balasundaram, ) Counsel
INTRODUCTION
[1] The applicant’s position as a lab support assistant at Rouge Valley Health System (the “employer”), in a bargaining unit represented by the Canadian Union of Public Employees, Local 4365 (the “union”), was eliminated as part of a restructuring in 2007. She attempted to bump into and apply for various other positions, but did not obtain them. She alleges that this was discriminatory on the basis of race. She identifies as Black. The applicant chose not to bump into other positions for which she did have the qualifications.
[2] While the applicant originally made allegations in her Complaint about comments by her supervisor, Sheri Bredewold, the applicant did not give particulars of these in her materials or rely upon them at the Case Resolution Conference (CRC).
[3] The Application was originally filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, but was subsequently transferred to the transition stream and processed under s. 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) following a hearing on the issue of jurisdiction: see 2008 HRTO 454 (the “December decision”). The union, originally named as a respondent, was granted intervenor status.
CASE RESOLUTION CONFERENCE PROCESS
[4] The CRC was held on May 8, 2009 and was conducted in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in an informal and highly expeditious manner.
[5] The respondent was directed, in the December decision, to deliver to the applicant and file with the Tribunal an affidavit or signed statement setting out the process by which the March 2007 restructuring took place and the reason or reasons why the applicant did not obtain a position following the restructuring. The respondent provided a comprehensive statement sworn by Melanie Wright, who was Human Resources Consultant at the time, was actively involved in the redeployment process on behalf of the hospital, and was a member of the Redeployment Committee consisting of representatives of the employer and the union. Ms. Wright indicated in her statement, and the applicant did not dispute, that she had personal knowledge of the steps and decisions taken around the applicant’s attempts to secure another position with Rouge Valley.
[6] The applicant’s representative was permitted to cross-examine Ms. Wright. After the cross-examination, and after confirming that the applicant did not wish to rely upon any evidence other than the documents in the file and the evidence of her witnesses, I directed that the applicant’s representative make full oral argument on the merits of the case, setting out within his submissions the evidence that the applicant’s witnesses would give. He was also permitted to rely upon any documentary evidence filed by the parties. The applicant was thereby given the chance to put forward her best possible case, so that I could determine whether it was necessary to hear further evidence.
[7] After hearing submissions from the applicant’s representative, I determined that I did not need to hear any further evidence nor submissions from counsel for the respondent or intervenor, as the applicant’s best case did not contain sufficient evidence that could lead to a finding of discrimination on the basis of race. I made a brief oral ruling dismissing the Application, and indicated that full reasons would follow. These are those reasons.
THE ALLEGED DISCRIMINATION AND THE EMPLOYER’S EXPLANATION
[8] As part of the restructuring, Ms. Sharras applied for various Lab Tech III positions, which were in a different bargaining unit represented by the Ontario Public Services Employees Union (“OPSEU”). These positions required OSMT (Ontario Society of Medical Technologists) certification, which Ms. Sharras does not possess. Accordingly, she did not obtain these positions.
[9] Two OPSEU members were placed in Lab Tech III positions without having the OSMT and were given a time frame to obtain their certification. The applicant argues that this is circumstantial evidence of discrimination. I do not agree. It is acceptable for a union and employer to give special consideration to individuals already in the bargaining unit, as OPSEU did, and the mere fact that OPSEU members were treated differently is not evidence of discrimination, particularly since both OPSEU members were also Black.
[10] The applicant attempted to bump into various clerical positions. She alleges that the fact that employees who were junior to her obtained such positions and she did not is strong circumstantial evidence of discrimination on the basis of race. The Redeployment Committee and the employer made various exceptions to collective agreement rules in order to place them in these positions.
[11] The employer has a computer testing program, developed by an external provider that is given to candidates for clerical positions who are not already employed in such positions. The applicant’s scores on this test, together with those of other employees who obtained positions were as follows:
| Area | Applicant’s Score (1st Attempt) | Applicant’s Score (2nd Attempt) | Employee A (Senior to applicant) | Employee B (Junior to applicant) | Employee C (Junior to applicant) |
|---|---|---|---|---|---|
| Typing | 21 WPM | 21 WPM | 31 WPM | 40 WPM | 40 WPM |
| Medical Spelling | 45% | 0% | 83% | 88% | 85% |
| Medical Terminology | 10% | 0% | 45% | 40% | 35% |
| Word | 21% | 21% | 88% | 35% | 75% |
| Excel | 8% | 13% | 63% | 4% | 67% |
| Transcription of doctors’ Orders | 0% | 0% | 60% | 80% |
[12] Ms. Sharras relies in particular on the fact that two employees (B and C) were junior to her and eventually obtained positions when clerical vacancies were posted. Another employee, junior to the applicant, was already working in a clerical position and the new position involved part of the duties of her previous position. She therefore did not require testing.
[13] Employees B and C, who had less seniority than the applicant, had scores on the testing that were not strong enough to permit them to bump clerical employees already in positions. When clerical vacancies arose, with the consent of the relevant manager and the union, they were placed into these positions. Ms. Wright’s evidence, which was unchallenged, was that the manager made the decision to permit these individuals to be placed in these positions based upon a review of the test scores. Ms. Sharras’s test scores were significantly lower than those of the other employees who were given positions and it was believed they were not sufficient to allow her to do clerical jobs. Ms. Wright explained that the reasons employees B and C obtained positions and Ms. Sharras did not was that they had significantly better scores on the testing. Their superior results are apparent from a review of the numbers themselves.
[14] The applicant argues that the testing was unrelated to the duties of the clerical positions in question, poorly designed, and so was a pretext for racial discrimination. Even assuming that the test was unrelated to the duties of the clerical positions (which seems highly doubtful given the testing of skills like typing speed and knowledge of medical vocabulary) the fact is that the testing has been used by the employer to test candidates for clerical positions for years and was not only applied in this process. I fail to see how, even if the testing is completely unrelated to the job, this could demonstrate racial discrimination against Ms. Sharras when the same testing was applied to all applicants who were not already working in clerical positions and the applicant did not propose to call any evidence that this testing acted as a barrier to racialized persons in particular.
[15] Similarly, the applicant submitted that Ms. Sharras was well qualified for the jobs into which she attempted to bump. Assuming this to be true, there is no evidence that any other employee with poor test scores was placed in a clerical position on the basis of general qualifications, or that race was a factor in the decision not to do so for Ms. Sharras.
[16] The applicant relied upon the argument that the collective agreement was allegedly not followed, presumably in the posting process for the vacancies. It is acceptable, particularly where employees have been laid off, for unions and management to agree to waive collective agreement provisions to assist the placement of existing employees, and, taken alone, this does not suggest that Ms. Sharras was differentially treated on the basis of race.
[17] Assuming all the evidence that would be given by the applicant’s witnesses to be true, there is little or no circumstantial evidence that suggests that race, as opposed to Ms. Sharras’s poor test scores and lack of qualifications, was a factor in her not obtaining a clerical or lab position after the layoff. The other employees to whom she makes comparisons had significantly higher test scores or clerical experience and there is no evidence or reason to believe that the use of test scores were a pretext for racial discrimination. Accordingly, having been permitted to put forward her best case, the applicant has not proven on a balance of probabilities that race was a factor in her failure to obtain one of her desired positions. Rather, I find that she did not obtain the Lab Tech III position because she did not have the OSMT certification and was not an OPSEU member, and, she did not obtain the clerical positions because her test scores were too low.
ORDER
[18] The Application is dismissed.
Dated at Toronto, this 12th day of May, 2009.
“Signed by”
David A. Wright
Vice-chair