GSB# 2004-1101

UNION# 2004-0520-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Dhanju)

Union

• and -

The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing)

Employer

BEFORE

Nimal V. Dissanayake

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Janice Campbell Counsel Ministry of Government Services

HEARING

October 18, November 8, December 8, 2005; April 10, May 1 & 15, August 31, November 28, 2006.

Decision

This decision pertains to a grievance dated April 2, 2004 filed by Dr. Iqbal Singh Dhanju (“grievor”). The grievance reads: “On January 21, 2004, I filed my grievance to our branch manager (Jim Stark) under the violation of Article 3 of our collective agreement. I am the ideal candidate for the knowledge transfer of the RANDI project. An agreement was reached and I was assured that I will be involved in the process of knowledge transfer. Right now knowledge transfer is happening from one outside person to another outside person”.

The statement of remedy requested is: “To fully utilize my skills and to save money, knowledge transfer of RANDI should be done to me”.

While the instant grievance refers to a prior grievance filed on January 21, 2004, the only grievance before me for determination is that dated April 2, 2004, as set out above. Although the union led substantial post-grievance evidence, part way through the parties jointly agreed that the Board should ignore all post grievance evidence.

The grievance centers around the allegation by the union that despite repeated requests by the grievor, and repeated promises by the employer, the grievor was denied a developmental opportunity, which would have potentially advanced his career progression significantly. The union conceded right at the outset of the hearing that it had no “explicit evidence or overt statements” indicating an attitude of racism. However, the union undertook to establish that the grievor was subjected to differential treatment, and further that there were no rational or operational explanations for the employer’s decisions, that the only conclusion the Board can infer from the evidence is that such actions were tainted, at least in part, by discrimination on the basis of the grievor’s, “colour, ethnic origin, race, ancestry and/or place of origin”. On that basis the union takes the position that the employer contravened article 3.1 of the collective agreement, as well as S. 5(1) of the Human Rights Code of Ontario.

At the outset, it must be noted that this case is not about systemic discrimination. The union adduced some evidence about the racial make-up (visible minorities versus others) of the workplace. Counsel argued that the Human Rights Code obliged the employer to be proactive in assisting and encouraging minorities to obtain the training and professional development that would enable them to advance in their careers. Through cross-examination of management witnesses, it was established that no specific steps were taken to assist visible minorities advance. Rather, the evidence was that management policy was to encourage and assist all employees equally to obtain training and professional development, without regard to colour or ethnicity. I did not understand union counsel to be submitting that the grievor had been a victim of systemic discrimination. However, if I am mistaken in that regard, such a position is simply not substantiated by the evidence.

I adopt the definition of “Systemic or Institutional Discrimination” set out by the Ontario Human Rights Commission in its “Policy and Guidelines on Racism and Racial Discrimination” (June 9, 2005) at p. 30, which states:

Systemic or institutional discrimination consists of patterns of behaviour, policies or practices that are part of the social or administrative structures of an organization, and which create or perpetuate a position of relative disadvantage for racialized persons. These appear neutral on the surface but, nevertheless, have an exclusionary impact on racialized persons.

There is not an iota of evidence of a pattern of behaviour, policies or practices generally at this workplace, which create or perpetuate any disadvantage to visible minorities. Instead, what the Board has before it is a grievance by an individual that the treatment he received at the hands of the employer was discriminatory on the basis of the grounds specified (hereinafter referred to as “race”).

The grievor possesses a PhD degree (1979) from India in Entomology, the study of insects. More relevant to his current work, in 1985 he obtained a Msc degree in computer sciences from North Dakota State University in the U.S.A.. He commenced his employment with the Ministry (now the Ministry of Municipal Affairs & Housing) in 1989, at its Central Registry. In 1992 he transferred to his current branch, the Software Development Systems Solutions Branch, and was working on the Ministry’s three social housing systems, in the position of Programmer/Analyst. Initially his position was Classified as Systems Officer 3 (“SO”), but in 2004 became reclassified as SO4 as part of a general reclassification of all SO3 positions.

The grievor was part of a four employee team that maintained the social housing systems, using an application called Clipper. Some 15 other branch employees worked on other systems using Oracle, a bigger and more complex data base system than Clipper. It is common ground that the grievor did his work using Clipper very well and received recognition for that. Especially after the other three team members left the branch, the grievor became the primary resource person with regard to Clipper and the social housing system.

Sometime in 1997 the Branch instituted a new application called “The Rural and Native Data Interface” (RANDI) to pay out housing subsidies to native persons. A consultant, Mr. Dimitri Chatrow, was hired on contract to maintain the RANDI system, because it was felt that the Branch lacked internal capability to do so. Mr. Chatrow’s contract was with the business user, not the branch. The grievor, and a person from the user area, Mr. Terry Pearce, were requested to assist with RANDI. The grievor, however, continued to have his social housing work as his primary responsibility. RANDI had two aspects in its application, the front-end which displays information on screen, and the back-end, where data is stored. The front end used the tool, Microsoft Access (“Access”), which was regarded as the newest and the best tool since 2000. The grievor’s involvement in RANDI was limited to the back-end, which used Oracle.

The consultant developed RANDI. There is undisputed evidence that the grievor expressed a keen interest in learning and working with Access right from the outset, both to SO6 Ms. Josephine Bemrose and to the Manager Mr. Jim Stark. His goal was to take over responsibility for the maintenance and enhancement of RANDI once the consultant leaves at the end of his contract. As a stepping stone, he sought assurances from the managers that arrangements would be made for the consultant to implement knowledge transfer on RANDI to himself. I find on the evidence that Mr. Stark as well as Ms. Bemrose, recognized that the grievor may have the potential to take over RANDI at some point, and they promised to assist the grievor with the required knowledge transfer to enable him to do so. This brings us to the crux of the grievance, that the managers having promised that knowledge transfer and created expectations, had not fulfilled that promise as of April 2, 2004 when the grievor filed his grievance.

The grievor testified that once he became involved in the back-end of RANDI he soon realized that the consultant was taking too much time and that it was a waste of the taxpayer’s money. He was also of the opinion that it was unprofessional to run a parallel IT system in the user area which was not accountable to the director of the branch. The grievor testified that he expressed these critical views to the user, Ms. Bemrose and to Mr. Stark.

The grievor testified that because of his criticism, the consultant created obstacles against his obtaining the RANDI knowledge transfer. The grievor’s expectation was that the knowledge transfer would be done by the consultant sitting down with him for a week, and going over the many programs and calculations the consultant had written into the front-end of RANDI “line by line”. This did not happen. On the contrary, the consultant provided the grievor a code which was password protected. Without the password the grievor could not access the system, which in turn prevented him from working with the front-end. The grievor believed that this was done deliberately by the consultant. According to the grievor, he brought this to the attention of his managers, and expressed his opinion that this was a result of having a parallel IT running with no accountability to the Branch management. The grievor testified that he did not at any time get the password to the code despite his protestations. The evidence indicates that shortly thereafter the RANDI system was brought in-house. It was the grievor’s opinion that this happened as a direct result of his criticism that it was improper to run parallel systems and that the system can be managed more economically and efficiently if the Branch took over responsibility for RANDI.

The evidence is that with the system becoming in-house, the management realized that there was a need to develop capability to run RANDI within the Branch. Therefore, a decision was made to hire someone with access knowledge and experience on a temporary basis. Sometime in late 2003 a 5 month unclassified position of “MS Access Support Analyst”, classified as SO4 was posted. The posting sets out the duties of the position as:

to provide support of applications based on MS Access. You will: provide project leadership, systems analysis, system design, development and maintenance; transfer your knowledge of MS Access to a number of IT support staff; resolve technical problems.

The qualifications required included “Experience and knowledge of MS Access complex application design”. The evidence is that there were over 630 applicants for this open posting. All but 65 were screened out based on the application itself. Out of the 65 only 8 were selected for interviews. Two of those declined and following interviews of the remaining 6, Ms. Natalya Myhaylovska, was awarded the position. At the time of the competition she had been employed at the Ministry of Health.

The grievor was among the applicants for this temporary position, but was not selected for an interview. He had been screened out during the resume review phase on the basis that he lacked “5 years of Access application development (since 1998)”, which the selection panel considered to be a mandatory qualification for the position. The grievor testified that from what Ms. Bemrose and Mr. Stark told him and based on “normal practice”, he understood that this person was hired primarily to help him with the RANDI knowledge transfer, because management had recognized that the promised knowledge transfer from the consultant had not happened. The evidence confirms that management indicated to the grievor that Ms. Myhaylovska would assist in the RANDI knowledge transfer to the grievor. The grievor received further comfort in this regard when Ms. Myhaylovska’s workstation was located in close proximity to the grievor’s. The grievor expected the knowledge transfer to begin immediately.

The grievor testified that what in fact transpired convinced him that Mr. Stark had misled him. Ms. Myhaylovska did work with him for 2 or 3 days. The grievor stated, however, that he was dismayed to see that the consultant Mr. Chatrow was in fact doing RANDI knowledge transfer to Ms. Myhaylovska. When the grievor approached Mr. Stark, he was told by Mr. Stark that he intended to extend Ms. Myhaylovska’s contract from 5 months to one year. These developments caused the grievor to be alarmed that Mr. Stark was grooming Ms. Myhaylovska to take over RANDI at the end of the consultant’s contract. The grievor consulted the trade union and filed a stage one complaint. At a meeting held with the Branch Manager, it was agreed that Ms. Myhaylovska’s contract will remain at 5 months, and that both she and the consultant will work with the knowledge transfer to the grievor. The grievor was very pleased and he withdrew his complaint.

The grievor testified, that shortly after the employer moved Ms. Myhaylovska’s work station out of the grievor’s area to another location. The stated reason was that Ms. Myhaylovska was claustrophobic. It was apparent that he did not believe that since he explained that her work area was not a closed room but open concept. The grievor testified that subsequently no knowledge transfer from Ms. Myhaylovska took place. There was a series of e-mails between the grievor and the managers, with the grievor inquiring what was being done with regard to the promised knowledge transfer and Mr. Stark reaffirming his commitment to provide that knowledge transfer to the grievor, but stating that he needed more time to come up with a plan.

The grievor testified that on February 18, 2004 at a meeting attended by himself, Ms. Bemrose and Mr. Stark an agreement was reached on a plan of action for RANDI knowledge transfer. In this regard, the employer had filed a “8 point plan” which it represented as reflecting the agreed upon plan of action.

It reads:

Points of agreement and action:

1. Iqbal will provide a list of the courses he has taken on Access and VB; additional courses may be identified.

2. Iqbal has made a request to be included in the business requirement and business rules discussions concerning Randi. Jim will consider this request and provide an answer by the end of March 8th (after Natalya returns from vacation).

3. TSBS is undertaking negotiations with SHB to find an alternative arrangement for supporting the Non-Profit systems. In the meantime, Iqbal remains the resource for this support, and these support requirements remain his top priority.

4. Iqbal also has the task of modifying the schema for Randi, as specified.

5. When the current Non-Profit support requirements, and Randi schema tasks are complete, Jim, Josephine and Iqbal will establish a schedule for completing the Access/VB exercises described below.

6. In preparation for Iqbal supporting any Access/VB application, he will undertake a series of up to five development exercises. Some of these exercises will have practical application, others will be merely exercises:

A. The application defined by Julie; there may be additional requirements defined in the area of business rules.

B. A change-log tracking data base. Iqbal will work with Josephine to define the requirements.

C. Up to three additional exercises, as yet to be defined.

D. Iqbal will attempt these exercises on his own, and request help only when it is required.

7. When Iqbal has successfully completed these exercises, and his skill level with Access/VB is seen to be adequate, he will be:

A. assigned – solely, or as part of a team – small Access/VB projects as they are requested by clients;

B. integrated into the Randi knowledge transfer process with the intent of him being able to participate, as part of a team, in the support of the Randi application.

8. At this time there is no impediment foreseen which would prevent the realization of the items in point seven, above, before the expiration of Natalya’s temporary assignment. However, it does require Iqbal’s diligent efforts on completing the exercises described above, and any additional training identified, which he has committed to do on several occasions, including again at this meeting.

The grievor testified that the foregoing accurately reflected the agreed upon plan of action, except for item 6. He conceded that he had agreed to the two exercises set out in 6(A) and 6(B), but denied that he had agreed to do up to three additional exercises as set out in 6(C). The grievor testified that he completed only the exercise set out as 6(A) for Julie. However, once he had completed it, Julie added more applications to the exercise. He did not receive the exercise for Josephine at 6(B). Instead the grievor was assigned three additional exercises, which he described as “having nothing to do with the real work we do”. The grievor testified that in his view, by assigning those additional exercises, Mr. Stark was moving away from his promise to facilitate knowledge transfer and “making it a developmental issue”. He viewed it as an attempt by Mr. Stark “to prove that I needed to learn something”.

On February 13, 2004, the grievor met with Mr. Stark and Ms. Bemrose and protested the assignment of the additional exercises. However, the managers refused to change the 8 point plan. Despite several more discussions with Mr. Stark between February and April, it became apparent to the grievor that the knowledge transfer was not going to happen, and he filed his grievance on April 2, 2004. When union counsel asked why he decided to grieve, the grievor replied, “Because I felt the agreements will not be honoured. Mr. Stark was making it a developmental issue. As if I needed to learn. He wanted to prove his point”. He testified that “new people got the new technology, while I am still here”. When asked “In your mind why did they not make alternate arrangements relating to Clipper?”, the grievor replied, “Because they wanted to discriminate against me and wanted to give the opportunity to someone else”.

The grievor also testified about instances of “discrimination” against him by Ms. Bemrose. He stated that like Mr. Stark, she also “created obstacles” for him. Once she assigned the job of sending data to some 47 managers in Ontario to an outside consultant, when he had offered to do it internally. When the grievor questioned Ms. Bemrose why she had paid $ 5,000 to a consultant when he could have done it, her only response was that the work had already been done by the consultant. On another occasion, Ms. Bemrose submitted a business case to extend the contract of an outside contractor, Julia Berchtadd. The director did not approve the extension. The grievor saw this as another case of discrimination and an attempt by Ms. Bemrose to by-pass him by unnecessarily paying a consultant.

Union counsel asked the grievor “You are alleging discrimination on the basis of race – why?”. The grievor replied: “The simple reason is, if I was in the private sector and I tell them that at the same salary I’ll do more work, they’ll jump at it. Here, not even an attempt was made. I offered that I can do it, why get George? Same with Julia. So no doubt in my mind, because I was not asking for more money or a promotion. Also someone less qualified than me was brought in from outside, groomed and given a full-time job. Mr. Stark said one year earlier that he’ll do it and he did it. He institutionalized his power and discriminated against me”.

In cross-examination about the 8 point plan, the grievor agreed that he had made some errors in modifying the schema in RANDI, point 4 of the plan. However, he explained that RANDI was his lowest priority at the time and that he did that work just before going on vacation and had told management that he had not had time to test his work. He took the position that the users should have therefore tested it before implementation. In any event, the grievor strongly argued that the errors he had made were not significant errors and that the errors did not prevent RANDI from running.

Employer counsel pointed out that at point 8, the grievor was required to make “diligent efforts” on completing the exercises, and asked if he did that. The grievor denied that he had agreed to the 8 point plan and stated that it was imposed upon him on a “take it or leave it” basis. The grievor added that the employer came up with the 8-point plan “just to prove that I needed to learn” and that it had “nothing to do with the knowledge transfer”. He testified that the employer wanted him to do 5 exercises, but he was willing to do only 2, and that the employer should have sat down with him and resolved that dispute. Instead, 5 exercises were imposed on him. When counsel suggested that the exercises, like the other tasks in the 8-point plan, were designed to establish the grievor’s proficiency in Access to be able to receive RANDI knowledge transfer, the grievor disagreed and commented, “This was done to give the illusion that I needed to learn, which I never needed”. He stated that he knew Access. When counsel asked whether the employer was not entitled to satisfy itself of his proficiency in Access, the grievor replied that the exercises were just hypothetical and that he should have been assigned some “real work”. He testified that between 1998 and 1999 he had done 5 courses in Access and that Mr. Stark would have known about that because Mr. Stark had paid over $ 3,000 for some of those courses. He agreed, however, that by 2004 the Access technology would have changed from what he had learned in the courses. He agreed that since 2000 he had not used Access at work, but blamed the employer for not assigning him work in Access. He stated that in private industry it was standard that when someone completes a course he is assigned related work.

The grievor asserted that he should have been directly given the RANDI knowledge transfer based on his seniority and skill. He referred to the fact that he had a MSC in computer science. He agreed, however, that his masters studies did not include Access because Access did not exist at the time. Employer counsel put to the grievor that he did not get the knowledge transfer because the employer did not have the confidence that he had the necessary Access knowledge and experience to be able to successfully receive knowledge transfer, and asked whether he was aware that the client had expressed serious concerns with his work on the RANDI back-end project and his continued involvement in it. The grievor replied that he knew that there had been some “childish comments”, and added that “if you talk to computer guys they’ll tell you it doesn’t mean anything”. When asked if he agreed that there were problems with his work, he replied, “if at all they were minor”.

Under cross-examination, the grievor agreed that he was assigned a lead role in the conversion of the social housing system from Clipper to Oracle. He agreed that it constituted a knowledge transfer of a new technology and that Mr. Stark trusted him to do that work. He agreed that Mr. Stark arranged to have him trained in Oracle and paid for the training, and gave him the opportunity to work on the RANDI back-end using Oracle.

Employer counsel referred to the grievor’s testimony to the effect that there were no visible minorities above the rank of SO4. She pointed out that there were only the three managers above the rank of SO4. She asked what the significance was, of the fact that those 3 managers were whites. The grievor replied, “On a fairness principle any workforce should signify the make-up of the population”.

The grievor was cross-examined about his criticism of the hiring of Ms. Myhaylovska to fill the temporary SO4 position. It was pointed out that the grievor had stated that he was the most qualified of the 630 plus applicants for the posting. The grievor was asked if, at the time he applied, he had practical experience in Access that the posting required. His reply was “No. But I had done courses in Access”. When counsel said “But you had no practical experience?”, the grievor replied, “now I say I did, because the courses included some practical applications and when I did the back-end of RANDI using Oracle, the ODBC part of it was in Access.” When counsel suggested that he did not have the practical experience in Access required in the posting the grievor replied that “this ad was made to suit someone.” When counsel suggested that the posting was for a MS Access Support Analyst with practical experience in Access the grievor replied “That’s not what they needed”. When counsel suggested that it was the employer’s decision what position to post, the grievor replied “Yes. Then they have to decide how to spend tax dollars”.

Employer counsel suggested to the grievor that the exercises in the 8 point plan were not an attempt by the managers to play games with him as he suggested, but intended to assist him in the preparation for knowledge transfer on RANDI. The grievor replied: “I don’t agree. Knowledge transfer is the consultant before leaving sitting down with the programmer and going through line by line, so the programmer can ask questions”. Counsel suggested that the consultant sitting down for one week and going over line by line was not the only way to effect knowledge transfer and that it can involve the programmer independently studying manuals and codes. The grievor agreed that it could be one of the ways but added that what was more important was the interaction with the consultant, which should be weighted about 80 percent.

During cross-examination the grievor testified that Ms. Bemrose had told him that since the consultant was a hindrance to the knowledge transfer, Ms. Myhaylovska had been hired to assist the grievor with that, and that was the reason she was asked to sit in his office. At first the grievor clearly testified that he was told that immediately upon the hiring of the temporary SO4, the knowledge transfer would happen. However, when later counsel stated that there was no such promise, that knowledge transfer could only happen after the social housing branch made alternate arrangements for someone else to do the social housing work, the grievor replied: “Yes. They said they’ll do their best to make alternate arrangements. Then they found that alternate arrangements were too expensive. So they sacrificed me”. The grievor agreed that the client could not find anyone capable of doing the social housing work and did not want to spend large amounts to make alternate arrangements. When asked how that amounts to racial discrimination, the grievor replied “The effect is discrimination. In social housing there wasn’t a single complaint against me. I was sacrificed because it was good for the client for me to stay in Clipper. But who cares what’s good for me”.

The grievor agreed that upon his return from vacation in 2003 he was told that some changes had been done to correct the tables he had done on the RANDI back-end. However, he described the changes as only cosmetic. He said that it was not a “big deal” because even at Microsoft, with 1000’s of computer experts working, mistakes do happen, and that if he had been told he would have easily made the correction upon his return. He refused to accept that he had made any “error”. He pointed out that there had been a missing column that had to be corrected. He stated that a missing column is “not within the definition of an error”. He said an error is “when the system dies”. He denied that he had been advised prior to this hearing that the missing column resulted in any delay or cost to the user, or that he had been removed from the RANDI project at the request of the user who expressed that it lacked confidence in the grievor’s competence to do that work.

The grievor was asked whether he agreed that operational requirements of social housing affected his moving to do Access work. He replied: “Of course. They couldn’t replace me in social housing. That should be in my favour, not against me. If I am so useful I should be rewarded, not penalized.”

The grievor was asked in cross-examination what his definition of discrimination on the basis of race was, when he makes that allegation. The grievor replied, “something on the basis of race or colour without solid proof”. Upon further questioning he said, “It’s a psychological way of looking at someone. You have a myth about someone. Some untrue information. For example, that all Chinese are bad drivers with no data. Then if you act on it, it becomes discrimination”. When asked how that definition applied to him he said “I offer to help with RANDI to save money and I am told the client didn’t want me. I wasn’t called for an interview when the culture is to do that. I wasn’t given work in the new technology. That’s discrimination. When I can do it, why not give it to me”. Counsel suggested that not all applicants automatically get interviews merely because they work in the office. The grievor’s reply was, “They should be interviewed. Then if an applicant is not good, he will fail”. When counsel suggested that it was not the practice to interview applicants who do not have the posted qualifications, the grievor responded that he was qualified. When asked if he felt he was more qualified than the 630 plus other applicants, his response was, “There couldn’t have been many with Access”.

Employer counsel suggested that the managers had to work in conjunction with the user in making alternate arrangements for someone to do social housing duties, before the grievor could be moved to do Access. The grievor agreed, but added “But the effect on me is the same. They should worry about my career”. He stated that it was the employer’s responsibility to train him to be a SO6 because “that’s their practice and that is so in all software shops”.

Based on his resume, the grievor agreed that his five Access courses were done in 1998-1999 and that each course was one week long. He also agreed that after the grievance was filed, later in 2004 he had done the “Introduction to Ms Access” course, at the employer’s expense. When asked why he insists that he should have got the temporary position, he stated that he was the only one in the branch to show an interest, that during his tenure with the Ministry he had “produced”, and that since he was a “local” applicant he should have had an advantage. When counsel suggested that the collective agreement did not give him a right to the position on that basis, he stated that “it was common practice to get temporary assignments and on that basis get ready for the next job”. When told that as per the collective agreement, temporary assignments are made on the basis of merit he reiterated that he was more qualified than all others who had applied. When asked if it was possible that some of the 630 plus applicants had more experience in Access than he did, given that Access was in use in other ministries, the grievor asserted that no one had a MSC as he did. When asked if he should have got the job because he had done a MSC in 1984 when Access did not even exist, he said he did not.

Ms. Bemrose, who was the Acting Project Manager at the time, was involved in the job posting, which was ultimately won by Ms. Myhaylovska. She testified that the posting was made in preparation for the Branch taking over of the RANDI Application in house. The successful candidate had a dual role to play. First, to support the application, and second, to train all staff on the application because the Branch did not have the required skills. She pointed out that the grievor was screened out because he lacked one of the two mandatory qualifications, namely “5 years Access application development (since 1998)”. Everyone who met the two mandatory qualifications received an interview. She stated that the particular requirement was made mandatory because the employer needed someone with proven experience in a variety of Access applications and that someone with 5 years after 1998 would be up to date. She testified that from her knowledge and a review of his resume, the grievor had very limited practical experience in Access. She pointed out that even his involvement in the RANDI back-end was done in Oracle and not Access. With regard to his MSC in 1984, she opined that it would help with regard to documentation skills, but it did not give him any proven experience in the application and development at all, particularly because MS Access did not even exist at the time. She reiterated that the grievor did not have to know anything about Access to work on the RANDI back-end because it was in Oracle and that tools other than Access could have been used even to get at the data. She testified that prior to his grieving, the grievor had never indicated that he had any concern about the manner in which the temporary posting was filled or about the fact that he was not interviewed, let alone allege that he was discriminated because of his race.

Ms. Bemrose testified that shortly after Ms. Myhaylovska was hired for the temporary position, the grievor complained to her that Ms. Myhaylovska was constantly meeting with the consultant without involving him, and that she told the grievor that Ms. Myhaylovska should be allowed to get herself up to speed herself before she could start working on knowledge transfer to him. She testified that the consultant’s contract was ending in March 2004, and that it was important that the RANDI modules be implemented before then. The focus at the time was on that, as well as getting Ms. Myhaylovska to fully understand the business and how it was written, before the consultant left.

Ms. Bemrose testified that the 8 point plan was developed for the grievor “to improve his Access development skills, because it was felt that he did not have enough skills to do it on his own”. She agreed that such detailed plans are not developed for all employees. Ms. Bemrose testified that she was present at a meeting when Mr. Stark made a statement about extending Ms. Myhaylovska’s 5 month contract and ultimately making it permanent without a posting. However, she also testified that a few days later Mr. Stark corrected himself and informed that he had been told that he could not declare the position as permanent without a posting. Therefore the permanent position was posted.

Ms. Bemrose testified that the tables the grievor made on the RANDI back-end had errors. The tables did not match the specifications provided. As a result the consultant and other staff had to make corrections to the tables. This delayed the coding process, which had a May 31st 2002 deadline. Staff had to work extra hours to do the corrections on time. Ms. Bemrose also testified that in February 2003 the grievor was assigned the task of creating code definitions and amending tables in a tax module going into the RANDI system. After he had submitted his completed work, the consulted did testing and discovered the grievor had missed columns in the tables, and it was defined as characters when it should have been defined as numerics. She agreed that the corrections took the consultant only a couple of hours, but testified that the user had subsequently complained to Mr. Stark that the quality of the grievor’s work “not good enough” and that it had lost confidence in the grievor. As a result the grievor was informed that he was taken off the RANDI project.

Ms. Bemrose stated that from time to time the branch used consultants on contract when it needed special skills which were not available internally, or when the branch had time deadlines to meet. It was not uncommon for internal staff to oppose the use of consultants because they wanted to be involved in developmental projects and learn new skills. However, they usually got used to working with consultants. She also stated that sometimes, if management decided that it was beneficial to the branch, consultants were used to transfer knowledge in new skills to staff. She testified that generally all staff in the branch are encouraged to undertake training and development. However, it was not possible to provide training and development to an employee when he wants it. She said, “If we feel they can use new skills in their work we try to do it. But we have to go by our priorities. If there is a demand for the skills and lots of interest by staff, we arrange for in-house training”. She testified that over 40 percent of the staff in the branch were visible minorities. Of the 8 staff reporting to her (including the grievor) 4 were Asian.

Under cross—examination, Ms. Bemrose agreed that at the time Ms. Myhaylovska was hired it was expected that during her 5 month contract the knowledge transfer would happen and that the grievor would be one of the staff that would receive that knowledge transfer. She also stated that she viewed the grievor as one of the staff capable of becoming a support staff for the MS Access application, but added that she had concerns about the grievor’s level of proficiency in Access to receive the knowledge transfer. She based this on a report by the consultant that when he started knowledge transfer, the questions the grievor posed to him about MS Access disclosed a lack of knowledge on the grievor’s part, and that the knowledge transfer was not going well. The consultant felt that he was teaching the grievor basic Access principles, when the grievor was expected to already have that knowledge and the knowledge transfer was to be the RANDI application and not on Access. The consultant felt that the grievor should improve his Access skills before the RANDI knowledge transfer could happen.

Ms. Bemrose agreed that as a supervisor between May 2002 and April 2004, she had not taken any specific initiatives to encourage visible minorities to apply for promotions. However, she stated that all staff, without regard to ethnicity, were always encouraged to do so. She said “we treat them all equally”. She stated that she was not aware of any complaint by a visible minority that he/she had been denied a chance at promotion because of ethnicity. Ms. Bemrose agreed that she had never previously seen a detailed developmental plan as the 8 point plant given to the grievor. Anything she had seen before was more generic. She also agreed that the exercises given to the grievor were “unique”.

Ms. Bemrose disagreed that the grievor was denied the password, and insisted that after he raised the issue, he was given access to the code. She reiterated that the employer had set up a schedule for knowledge transfer to the grievor starting in November 2002 whereunder the grievor was to meet with the consultant three afternoons a week, but that the questions the grievor asked during these meetings had demonstrated that the grievor needed more training in Access before he could successfully receive knowledge transfer on RANDI. As a result, the RANDI knowledge transfer was stopped in December and the grievor was asked to get more training in Access.

Ms. Bemrose had no actual recollection of telling the grievor, upon his return from vacation, that there were errors in his work, that had to be corrected. However, she said that she was confident that she would have informed him of the errors. She agreed with union counsel that the error the grievor had made was not unusual. She agreed that it would be “an error” to enter data without first verifying whether the table worked properly. She also agreed that the problems arose because the consultant entered data without verifying, since no one had told him that the tables had not been verified by the grievor. She agreed that the errors had nothing to do with the grievor’s proficiency in Oracle or Access, and that if the normal verification had been done, the error would have been discovered and corrected before sending out the table to the consultant. If that had happened there would have been no issue.

Mr. Jim Stark was the Manager of Systems Development & Maintenance at the relevant time. He corroborated Ms. Bemrose’s testimony as to why the decision was made to post the temporary MS Access support position. He also agreed that the grievor was good at his job of maintaining the social housing systems using Clipper. He added that since the other employees who knew Clipper had left, the grievor was the sole resource person for Clipper, and since Clipper technology was to replaced, it was not considered appropriate to train new employees on it. Mr. Stark testified in chief that upon the grievor’s return to work from the OPSEU strike in 2002, he decided not to tell him that there were errors in the work he did on the RANDI back-end using Oracle, because he realized that as a result of the strike “there were strong passions on both sides” and he did not want to inflame those passions.

Mr. Stark agreed that he instructed the consultant to give the grievor the code, so the grievor could work in the RANDI application. The consultant gave the code, but neglected to remove the password protection. He stated that it was common to password protect codes such as this, to prevent unauthorized changes being made to the code. Within one day of the grievor raising the issue, a code without password protection was provided to him.

Mr. Stark agreed that the knowledge transfer on Access to the grievor could not begin immediately upon the hiring of Ms. Myhaylovska because she herself first had to receive the knowledge transfer from the consultant. He testified that in January 2004 when this was explained to the grievor, he appeared to accept the explanation and withdrew his complaint. He testified that the 8 point plan was developed in recognition of the complexity of the RANDI application and the grievor’s lack of proficiency in it. In the circumstances, he felt that a good starting point would be to do some practical exercises, in addition to doing courses in Access. He stated that despite the 8 point plan, the social housing work using the Clipper application remained the grievor’s top priority, since he was the only resource the branch had on that.

In chief, Mr. Stark testified that after the grievor did the work on the back-end of RANDI, there were errors discovered. He stated that the grievor had indicated that he had tested the tables. However, the errors were not discovered till later. The client was extremely upset because the errors caused a delay in the provision of funds to the service providers. He testified that “the client expressed a severe lack of confidence in the resources applied to this change and believed that it needed different resources”. Mr. Stark testified that he was not in a position to argue with the client. Therefore, he felt it necessary to remove the grievor from any involvement in the RANDI project.

According to Mr. Stark, the grievor did not take responsibility for his errors. Instead, he took the position that the client should have tested the work before implementation. Mr. Stark agreed that it would have been better if the client had also tested, but insisted that it was the programmer’s responsibility to ensure that the client finds no errors in the work received. When asked whether he felt that the client’s expression of lack of confidence in the grievor was legitimate, Mr. Stark replied that he did, but added “Even if I had agreed with the grievor, I was not in a position to argue with the client. First, you don’t ever argue with a client. Second, the grievor had not shown up to that point that he could satisfactorily support RANDI. We wanted to support any MS Access application. But he was not there yet.”

Under cross-examination Mr. Stark agreed that based on his past performance, “there was some reasonable prospect that the grievor may successfully get up to speed on MS Access” and that the grievor had shown a keen interest in getting to the point where he gets responsibility for the support and maintenance of MS Access. No other staff had shown an interest to that extent. Mr. Stark agreed that before the strike he had undertaken to have the consultant do the knowledge transfer, and that he reiterated this undertaking after the strike. He also admitted that following the strike and in the summer of 2003 before the posting of the temporary position, the grievor had made several requests to him that the knowledge transfer be started. He stated that each time his response was that he would keep trying. He testified that the knowledge transfer in fact commenced when the grievor was provided the code for the RANDI front end. He said that he kept after the user and was able to arrange for the consultant to have several sessions with the grievor for knowledge transfer. However, the timing was not ideal because there was a tremendous demand for the consultant’s time for maintenance and development work.

Mr. Stark testified that he was informed by the user and Ms. Bemrose, that once the grievor raised the issue, he was given the code for the RANDI front end without a password protection. When confronted with the grievor’s assertion that he never received the code, Mr. Stark stated that he understood that the code was placed in a network directory to which the grievor had security access. While he did not inform the grievor of such placement, he understood from Ms. Bemrose and the user that he was made aware.

When union counsel suggested that to get up to speed on knowledge transfer, the grievor needed substantially more practical experience than what he was provided, Mr. Stark replied that the feed back he received from the consultant and Ms. Myhaylovska was to the effect that the grievor lacked sufficient understanding of the basics of the MS Access application and visual programming language at that point to benefit from the knowledge transfer of the RANDI application. The user was questioning the appropriateness of continuing to use the consultant’s time for that purpose. According to Mr. Stark, he encouraged the user to continue the knowledge transfer to the grievor and convinced the user to authorize at least one more session with the consultant. However, the feedback he received from the user following that additional session was that there was no point in continuing with the knowledge transfer. Mr. Stark agreed that since the user was not an expert in MS Access, the user would have been relying entirely on the information coming from the consultant. He accepted the user’s conclusion that the knowledge transfer to the grievor should stop, because if he did not, the user would have gone to the private sector, and that was not to the benefit of anyone in the branch.

Mr. Stark admitted that besides indicating to the grievor that the consultant’s time was required elsewhere, he did not inform the grievor that the user had concerns about the grievor’s lack of capacity to receive knowledge transfer and had requested that the process stop. Mr. Stark did not tell the grievor that he needed more training before he could do the knowledge transfer, because previously the grievor had repeatedly asserted that he already had all the necessary training, and he saw no point in getting into an argument with the grievor. He agreed that the grievor may not have been aware that the consultant had concluded that he lacked the capacity to do the knowledge transfer, and that the grievor did not have an opportunity to challenge the consultant’s assessment. However, Mr. Stark asserted that he had every reason to respect the consultant’s assessment and had no reason to question his conclusion.

Mr. Stark agreed that the intention was that the person appointed to the temporary position would provide RANDI knowledge transfer to the grievor and others, during her 5 month contract, and that the grievor was led to believe that would take place. Mr. Stark testified that his information about the errors the grievor made on the RANDI back end came from the consultant, and from Mr. Larry Zehnle who was assigned to correct the errors. Mr. Zehnle was the Senior Designer, who Mr. Stark described as “the best designer in the IT industry”. Therefore, he had no reason to question the information provided by the two people. He agreed that since he did not discuss the matter with the grievor, the grievor did not get an opportunity to challenge that information.

Under cross-examination, Mr. Stark admitted that the grievor did not specifically tell him, nor did he specifically ask, whether he had tested the work he did on the RANDI tables. The grievor did, however, indicate that he had completed his work and was therefore able to go on vacation. It was Ms. Bemrose who told him that the grievor had told her that he had done the testing. Mr. Stark agreed that it was possible that there had been an error in communication between the grievor, Ms. Bemrose and the consultant, but that he did not look into that possibility. He explained that there was no point in investigating, because once the user makes a complaint he had no choice but to accept the complaint. If he argued, the user would go back to the private sector. That would not benefit the grievor or the branch. Thus the grievor was informed that he would no longer be involved in RANDI and that attempts will be made to find alternate means to develop his capability in MS Access, outside the RANDI application.

Under re-examination, Mr. Stark testified that after initially complaining that the code he received was password protected, the grievor made no subsequent complaint. Thus he assumed that the consultant had provided him with the code without password protection, as he was instructed to do. He testified that he decided to resort to practical exercises after the grievor was taken off RANDI, because at the time nothing on MS Access was available.

Union counsel noted that the grievor was a Sikh, a person of colour and was born in India. Through his previous performance, he had demonstrated that he had some potential to receive knowledge transfer on RANDI. Ms. Bemrose and Mr. Stark had agreed with that proposition. No one showed a level of interest as the grievor did, in receiving the knowledge transfer. The grievor repeatedly requested that he be given the opportunity to learn the RANDI technology. He had taken several courses related to Access. The employer was aware of that because, the employer had paid for most of the courses. Counsel argued that obtaining the RANDI knowledge transfer would have greatly enhanced the grievor’s opportunities for career advancement. While the employer repeatedly promised to facilitate the knowledge transfer, it did not happen between January 2002 when the grievor first sought it, and April 2, 2004 when the grievor filed the instant grievance.

Union counsel also pointed to the employer’s admission that the 8 point plant designed for the grievor was unique, that a similar plan had not been designed for any other employee as a method of knowledge development. He argued that the invariable method used for knowledge transfer was shadowing and mentoring with a consultant. On that basis, he argued that the grievor was subjected to “differential treatment”. Thus, the union argued that the issue for the Board is whether in light of all of the evidence, one reason for the differential treatment was his race. Relying on Smith V. Ontario Human Rights Commission, 2005 CanLII 2811 (ON SCDC), [2005] O.J. No.377 (Ont. SCJ) and Ontario Human Rights Commission v. Simpson Sears Ltd. 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 (s.c.c.), counsel argued that courts have recognized that it is rare to find direct evidence of racial discrimination, and that an intention to discriminate is not essential to establish a violation of the Human Rights Code. A violation may result, “if the effect of employer action or policy is discriminatory on one or more of the prohibited grounds”. He provided the example that “if a policy is enforced which required that to be a firefighter you must be able to run a mile within so many minutes, it may constitute discrimination on the basis of sex”. Thus, counsel argued, if the totality of the employer’s treatment of the grievor had the effect of discriminating against him on the basis of race, it is a violation of the Code and the collective agreement. Counsel submitted that given the grievor’s past good performance, his show of keen interest, and the employer’s repeated promises, the employer has an onus to offer a non-discriminatory explanation for the grievor not receiving the knowledge transfer.

Union counsel frankly admitted that there is no evidence before the Board of conscious or intentional racism. However, he was of the view that the employer had failed to offer any reasonable explanation for the grievor not receiving the knowledge transfer. The probable explanation in the circumstances, he argued, was that “a Negative attitude based on the grievor’s race and colour was lurking in the subconscious of the decision-maker”. Counsel urged the Board to infer that to be the probable explanation in the absence of any other reasonable explanation by the employer.

Counsel proceeded to argue, that in any event, the Human Rights Code requires employers to pro-actively take steps to encourage the career advancement of racial minorities. He referred me to the Ontario Human Rights Commission’s, “”Policy Guidelines on Racism and Racial Discrimination”. He submitted that there was no evidence that this employer had taken any proactive steps for that purpose. He pointed to the evidence that there was no visible-minority in this branch who was above the rank of SO4.

Counsel submitted that the evidence established the following:

• The employer accepted and relied upon misinformation that the work the grievor did on the RANDI back-end was so flawed that it had to be rebuilt. That caused the employer to be prejudiced against the grievor by having a negative attitude that he was incompetent.

• The employer made repeated promises to the grievor, but disappointed him each time.

• The assessment that the grievor lacked the capacity to successfully obtain the RANDI knowledge transfer came from the consultant and Mr. Larry Zehnle. The evidence shows that both those individuals had an axe to grind against the grievor, Yet the employer accepted their negative assessment of the grievor without verifying its accuracy.

• The employer did not provide the grievor with any opportunity to challenge that negative assessment.

• Even if the grievor had made the alleged errors on the two occasions, neither had anything to do with the grievor’s proficiency in relation to MS Access. Yet the employer relied on those errors as a basis for denying him the RANDI knowledge transfer.

• The employer was not frank with the grievor. Rather than informing him of the alleged errors, the employer led him to believe that the knowledge transfer would continue.

• Ms. Myhaylovska was to provide knowledge transfer to the grievor. For that purpose she was stationed in the same office as the grievor. However, as soon as she produced a medical note that she needed to work near a window, she was moved out. Counsel stated that while Ms. Myhaylovska’s needs were met “any thought of the grievor’s need for knowledge transfer became totally secondary”.

Based on all of the above, counsel submitted that it was a fair inference from the totality of the evidence that the failure by the employer to provide the grievor the knowledge transfer was, at least in part, on the basis of the grievor’s race.

Employer counsel argued at length in an attempt to show that the evidence established that the employer had justifiable reason to act the way it did in every situation relied upon by the union. She argued that racial discrimination is an extremely serious allegation, which must be supportable by some reliable evidence. She submitted that there was absolutely no evidence that any of the employer’s actions or inactions had anything whatsoever to do with the grievor’s race.

CONCLUSION

Employer counsel is correct in stating that there was no collective agreement right to training and developmental opportunities. However, it is trite to state that if an employer discriminates on the basis of a prohibited ground in the manner it exercises its discretion and management rights, it constitutes a contravention of the Code and the collective agreement. In examining the manner in which the employer exercised its discretionary powers in its treatment of the grievor, the focus has to be on racial discrimination. That is the only violation asserted in the grievance before the Board. Therefore, the issue is not whether the employer’s action or inaction was appropriate, fair or just. It does not matter that the union is able to convince me that the employer, with more effort and/or alternate approaches, could have given the grievor the knowledge transfer in question. The fact that I agree with the union on that count, cannot lead to a finding that the employer engaged in racial discrimination.

In Re Damani, 1581/95; 1703/98 (Gray) at para: 17-18, the Board observed:

17I accept as a general matter that racism “is out there”, as the grievor put it at one point. I agree with union counsel’s submission that racism is often is latent, in the sense that those whose conduct is influenced by racist attitudes may not openly acknowledge it. It is not necessary for the union to prove that discrimination on the basis of race was the sole or even a major reason for employer conduct detrimental to the grievor. If discrimination on the basis of race played any part in the employer’s treatment of the grievor, then it breached the collective agreement provision that prohibited such discrimination. The presence and effect of racist attitudes may be difficult to detect and prove. It does not follow, and the union does not suggest, that proof is therefore unnecessary, or that the mere allegation of racial discrimination shifts the burden of disproving the allegation to those accused of it. The same may be said about anti-union animus and discrimination on the basis of union activity.

18The grievor says she cannot understand why she has not advanced in the civil service unless it is because she is the victim of discrimination on the basis of her race or union activity or both. Her subjective belief that she is the victim of discrimination, however strong, is not proof that she is. This would be so even in the absence of evidence that she is inclined to exaggeration in labeling her experiences.

At para; 20-22 the Board stated:

20The failure of management to either do as Ms. Hill recommended or explain why it would not or did not do so is perplexing. So is management’s failure to either do as the Minister’s delegate directed or explain why it would not or did not. In all the circumstances, however, these things are not a sufficient basis for the inference the union asks me to draw. Certainly there is no other basis for such an inference.

21There is no suggestion, and no evidence, that the grievor was the only classified employee allegedly disadvantaged by the management practices about which she and the union were complaining in 1995 and afterwards. There is no evidence concerning the actual or apparent racial origins of other allegedly disadvantaged employees, or of those members of management responsible for the practices, or of those employees alleged to have benefited from them. In so far as the employer had work opportunities to assign that were not subject to posting and competition, the grievor asserts in a general way that she was denied opportunities afforded other employees and that the opportunities she got were not as advantageous as those that others got. Again, the evidence does not identify the actual or apparent racial origins of the decision-makers or of the other employees to who they allegedly gave preferential treatment. I do not suggest that evidence of the matters just referred to would have been necessary, or sufficient, for these grievances to succeed. These observations are simply meant to illustrate and underscore my conclusion that the evidence before me is not an adequate basis on which to sustain the claims made.

22Disappointing as it undoubtedly is for Ms. Damani, the fact that an employee with her years of satisfactory service did not get the sort of work opportunities she sought during the period in question is not so surprising as to warrant, without other objective evidence of it, an inference that discrimination played a part in the outcome. The evidence put before me does not support the grievances.

The employer offered explanations for each of the impugned instances of action and inaction. It was explained that Mr. Stark as well as Ms. Bemrose accepted the consultant’s assessment of the grievor’s lack of ability without question because he was an outside expert whose judgment was trusted, and that they had no reason to question the accuracy of his assessment. As to the union’s allegation that the consultant may have been prejudiced against the grievor because the grievor had been critical of the consultant’s work, I find, is nothing more than speculation. There is no evidence that the consultant was even made aware that during a discussion with Mr. Stark, the grievor had been critical of the consultant. Nor is there any evidence of conflict or hostility between the grievor and the consultant. The point, in any event is, that the employer, rightly or wrongly, trusted the assessment of the consultant.

The same is true with regard to the union’s allegation that Mr. Zehnle had an axe to grind with the grievor. The only evidence we have is that during the OPSEU strike in 2002 the grievor joined the strike, while Mr. Zehnle crossed the picket line and continued to work. In the absence at least of some evidence of conflict or even an argument between the two on the issue of the strike, it is an unreasonable stretch to assume that Mr. Zehnle would have lied about the grievor’s capacity to receive the knowledge transfer. In any event, the employer’s explanation that it relied upon Mr. Zehnle’s assessment without further investigation because it considered him as the best designer in the IT industry is not unbelievable.

On the one hand it seems unfair that the employer accepted information from the consultant and Mr. Zehnle about deficiencies on the part of the grievor and relied on that to discontinue the RANDI knowledge transfer, but did not inform the grievor of that. Instead he was led to believe that the sole reason for the discontinuation was that the consultant’s time was needed elsewhere. On the other hand, I can also understand the employer’s explanation that the grievor was not confronted with his errors and deficiencies because that would had led to an argument with the grievor. While on the stand the grievor stated very emphatically that he was capable of receiving the RANDI knowledge transfer, without any additional upgrading of his MS Access knowledge. He considered himself to be fully competent in MS Access. This was despite the uncontradicted evidenced that his only exposure to MS Access was by way of several basic one week course some years earlier, and very insignificant involvement in the RANDI application. The grievor even testified that the employer had no need to post for the position because he could have been assigned those duties. More dramatic was his unhesitating declaration during testimony that he was more qualified for the temporary MS Access Support position than all of the other 630 plus applicants. It was clear that he had no knowledge of the qualifications of the other applicants. He stated that he doubted that “there were too many applicants with Access”. His assertion that he was the most qualified applicant was based on the fact that he believed that no one else had a MSC in Computer Science as he did. The evidence, however, is uncontradicted that his MSC pre-dated the Access application and had little relevance to the MS Access Support position.

Particularly considering that the union formally stipulated that it was not taking issue with the employer’s decision to post the temporary position or its selection of Ms. Myhaylovska, it was very obvious to the Board that the grievor greatly exaggerated his qualifications and experience. Even in the face of overwhelming evidence to the contrary he insisted that he was fully competent in MS Access. He took a self contradictory stance by asserting on the one hand that he was the most qualified applicant for the MS Access support position, but arguing on the other hand that he was negatively impacted when the person who filled that position, Ms. Myhaylovska, did not transfer her knowledge to him upon her appointment.

The employer had its own explanation as to why it came up with the 8 point plan, when a detailed written developmental plan like that had not been designed for any one previously. The evidence is that even after the user had expressed a loss of confidence in the grievor, Mr. Stark convinced the user to allow a further session between the grievor and the consultant. The consultant had previously expressed to Mr. Stark his opinion that, based on the questions the grievor had asked him about basic MS Access issues, the grievor lacked a sufficient understanding of MS Access principles to benefit from a RANDI knowledge transfer. Following the final session, the consultant had advised the employer that there was no point in continuing with the knowledge transfer based again on the opinion that the grievor lacked the required knowledge of MS Access. Mr. Stark explained that while the grievor’s knowledge transfer on RANDI came to a halt at this time, the intention was to provide the grievor knowledge transfer on MS Access applications other than RANDI. However, no such MS Access work was available in the foreseeable future. According to Mr. Stark, he therefore decided that the grievor could obtain some practical experience in MS Access by doing practical exercises related to MS Access. Mr. Stark testified that the plan was developed for the grievor’s benefit, not to obstruct him. It was very clear that the grievor looked at things very differently. First of all, he saw no need on his part to learn anything. He saw no value in the exercises because they were hypothetical and not “real work”. He testified that the plan was designed by Mr. Stark to prove that he “needed to learn things”. Thus it is clear that the employer and the grievor were at odds about the grievor’s level of competency and experience in relation to Access.

Similarly, Mr. Stark explained that once the user expressed a lack of confidence in the grievor’s abilities, it did not matter whether he agreed with the user or not. His policy was that “you never argue with the user”. He explained the reason for following such a policy, that if he had disagreed with the user, the user would have simply stopped using the employer’s services and turned to the private sector. Such a result would not benefit either the grievor or the Branch. The grievor on the other hand belittled the user’s opinion that it lacked confidence in his ability as childish. He criticized the employer for being concerned about not opposing the user, but not caring about the impact of its decision on his career. He felt that the employer had an obligation to take a stand on behalf of its employee against the user’s unfair conclusion.

As Vice-Chair Gray observed in Re Damani (supra), even if I am not in agreement with the reasonableness or logic of some of the explanations offered by the employer, that is not a sufficient basis for the inference that the employer’s actions were based in whole or in part on the grievor’s race. Whether or not I agree with the reasoning on the basis of which the employer acted – for eg: its decision to accept the assessment of the consultant and/or Mr. Zehnle, its policy of never questioning the user, and its decision not to confront the grievor and not allowing him a chance to challenge their assessment – that reasoning is not so outrageous to be unbelievable. As long as I believe that the reasoning of the employer was non-discriminatory, i.e. not based on the grievor’s race, an inference of racial discrimination cannot arise. In order to make such an inference, I must at least be convinced that the explanations offered by the employer were complete fabrications. As long as I believe that the employer relied on some non-discriminatory reasoning, however flawed such reasoning may be, a finding of racial discrimination does not arise. In this regard, it is noteworthy that the union was very critical of the manner in which the employer made its decisions. For example, it was repeatedly stated that employer accepted the consultant’s word, without independently verifying its accuracy. The union, however, did not argue that the employer’s testimony that it chose to trust the consultant’s opinion without more, was a fabrication. In any event, I find that there is no basis for me to question the believability of the explanations offered by the employer. In the circumstances, even if I disagree with the appropriateness or fairness of the employer’s actions, at best it would establish poor judgment on the part of the employer. It does not lead to an inference of racial discrimination.

Union counsel’s analogy with the firefighter example in my view has no relevance or application to the facts before me. That example is an illustration of systemic discrimination, where a general rule which is neutral on its face has a discriminatory effect on a protected group. In this case, there was no allegation and certainly no evidence, that the employer imposed some general rule which had an adverse effect on any protected group such as persons of colour and/or persons of Asian ancestry or origin. To the contrary, the union’s allegation was that the grievor was singled out for differential treatment.

Union counsel referred me to the following passage in Lasani v. Ontario Human Rights Commission, (1993) C.H.R.R. Vol. 21 p. 415 at p. 421:

49In cases such as the one before me, where the Commission alleges systematic discrimination, the relationship between the allegedly unfair result and the prohibited ground must still be proven. Commonly, this is done by an admixture of evidence concerning the attitudes of supervisors, incidents which have occurred, etc. and analysis of the statistical pattern in the place of employment. This was the mode of analysis approved by the Supreme Court of Canada in C.N.R. v. Canada (Canadian Human Rights Commission), supra. It may be, however, that such a case may be proven by the mere implausibility that a pattern of exclusion could be generated by anything other than discrimination. That would be the case, for example, in a business enterprise which employed no women among its 5,000 staff, even if management were innocent of making any prejudiced comments and purported to hire entirely on the basis of merit, such a ration of non-representation, properly documented and shown to be statistically relevant, would go a long way toward proving the relationship to the prohibited ground.

On similar reasoning, union counsel urged me to conclude that the employer had engaged in racial discrimination by not taking steps for the career advancement of racial minorities within the particular workplace. Employer counsel objected to this argument, taking the position that this is an individual grievance in which the grievor was alleging that his individual rights were violated and that it would be improper for the Board to engage in an inquiry as to whether the employer generally practiced racial discrimination within the branch. I do not need to resolve that issue because, I find that there is no evidence at all that can form the basis for a finding of racial discrimination as the union claims, even if I were to consider it. The sole basis for the union’s position in this case is the evidence that no visible minority occupied a position above the rank of SO4. The evidence, however, is that there were only 3 positions in the branch which were above the rank of SO4. There is no evidence at all about when and in what circumstances these appointments were made. There is no evidence whether or not any racial minority with qualification even applied for any of the 3 positions. It is not possible to infer racial discrimination, merely from the fact that none of the three higher ranked positions were occupied by a racial minority.

It may well be the case that had the employer done things differently, the knowledge transfer to the grievor may have been facilitated. It is also likely that the grievor’s attitude of not accepting any criticism and not accepting that he needed any upgrading at all before he was able to receive the knowledge transfer, and his attitude of “it is my way or no way” contributed to an adverse relationship, when cooperation was required to overcome the obstacles that stood in the way. In any event, the evidence does not suggest an inference that the race, colour, creed or ethnic origin of the grievor had any part to play in the employer’s decision. It is easily understandable why the grievor, as an ambitious and hard-working employee, is deeply disappointed. However, he has not made out the basis for his grievance that he had been discriminated against contrary to the Human Rights Code or the Collective Agreement.

For all of the foregoing reasons, the grievance is hereby dismissed.