GSB#2006-0659, 2006-0929
UNION#2006-0546-0022, 2006-0546-0030
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Gauntlett)
Union
- and -
The Crown in Right of Ontario (Ministry of Finance)
Employer
BEFORE
Owen V. Gray
Vice-Chair
FOR THE UNION
Jennifer Fehr, Grievance Officer Ontario Public Service Employees Union (after June 2008)
Kirsten Agrell, Grievance Officer Ontario Public Service Employees Union (May and June 2008)
Gavin Leeb (before May 2008) Counsel
FOR THE EMPLOYER
Michelle Dobranowski Counsel Ministry of Government Services
HEARING CONFERENCE CALL
March 5, June 4, September 4, September 24 and October 22, 2007, May 28 and June 4, 2008, January 16 and 29, February 23 and 27, May 29, June 3 and August 25, 2009. May 6, 2008.
DECISION
1In his grievance of March 17, 2006, the grievor alleged that
I have been unjustly denied access to the position of RTO Administrative Support Clerk under competition: 2675, 6276 and 6240. This act is a violation of sections 6.3 and 3.1 of the collective agreement.
“2675” was a typographical error. The competitions to which the grievance relates are 6275 – a competition for one permanent Administrative Support Clerk position in Mississauga, 6276 – a competition for one temporary 12 month Administrative Support Clerk position in Mississauga, and 6240 – a competition for three permanent Administrative Support Clerk positions in North York.
2In his grievance of April 27, 2006, the grievor alleged that
Michelle Jeanes & Mariola Pachura-Allum unjustly discriminated against me when they refused to re-new my contract. This act is a violation of sections 3.1 of the collective agreement.
The contract referred to was the second of two consecutive 6 month contracts under which the grievor was employed on a temporary basis as an unclassified Administrative Support Clerk in the Mississauga Regional Tax Office (“Mississauga RTO”).
3The parties agreed that these two grievances would be heard together. They also agreed that I should first hear evidence and argument about the two Mississauga competitions and the non-renewal of the grievor’s contract, deferring until afterwards any issues unique to the North York competition.
4The collective agreement provisions allegedly breached, Articles 3.1 and 6.3, provide as follows :
3.1 There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 10(1) of the Ontario Human Rights Code (OHRC).
6.3 In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, seniority shall be the deciding factor.
5In a decision released July 14, 2008, I ruled that the claim that the employer had breached Article 6.3 was not one that could be pursued on the grievor’s behalf, since Article 6.3 is not one of the provisions of the collective agreement that applied to the employment of unclassified employees under the collective agreement in force at the relevant time.
6Having now heard both parties’ evidence and argument about whether there was a breach of Article 3.1 in the conduct or outcome of the competitions for positions in the Mississauga RTO or the non-renewal of the grievor’s unclassified contract, for reasons that follow I am not persuaded that there was such a breach.
The Factual Context
7Some facts were agreed or not disputed.
8The grievor, Rayon Gauntlett, is black. The grievor’s mother, Jennifer Myles, has worked as a tax auditor in the Ministry’s Regional Tax Office in Mississauga (“the Mississauga RTO”) since 2000. She was a shop steward when she testified, and had been the union co-chair of the local ERC for 2005-6. Before, while and after her son worked there, Ms. Myles believed that members of management at the Mississauga RTO, including Michelle Jeanes and Mariola Pachura-Allum, discriminated against blacks.1 In January 2005 she asked a white manager to give her son’s resume to the then Manager of Regional Office Operations, Ms. Mariola Pachura-Allum, without saying how he got it, in the hope that he would be considered for employment without regard to his race or colour.
9The grievor’s resume, along with many others, found its way to Michelle Jeanes when she took over Ms. Pachura-Allum’s functions on an acting basis in February 2005. In late May 2005 she needed to hire someone on a temporary basis because one of her permanent clerks had been given a six month secondment elsewhere. She hired the grievor over the telephone on the basis of his resume and a telephone conversation. She had no information about the grievor’s colour or race when she hired him.
10The grievor’s initial hiring was for a period of up to six months commencing May 24, 2005. In late November 2005, the grievor’s unclassified employment was renewed for a further term of up to six months, after the secondment of the absent clerk was extended by six months.
11The grievor had a number of duties during his employment at the Mississauga RTO. He described them this way in the resume that accompanied his application for the competitions:
Collect, sort, and distribute incoming and outgoing mail in a timely manner
Maintain the Ministry's vehicle usage log and ensure up to date.
Log transactions, prepare outgoing mail/courier and ensure accuracy
Respond to audit staff's' inquiries and follow up in a timely manner
Processed invoices and prepare spreadsheet in Lotus and on Excel.
Maintain database of auditor's activities and management schedules.
Monitor stationery supplies and reconcile supplier's account accurately.
He also described his duties in a letter of reference that he prepared and Ms. Jeanes signed in March 2006:
To Whom It May concern:
This letter confirms that Rayon Gauntlett has been employed at Ministry Of Finance since May 24, 2005 on a contract. His position is an Administrative Support Representative to the Mississauga Regional Tax Office, and duties are as followed:
Provides courteous and professional assistance to management, employees and Clients
Collected organized and distributed incoming and outgoing mail with required date stamped
Verified incoming faxes and distributed to auditors, managers and all other staff
Updated employee information and changes in the computer
Monitored, maintained and organized program vehicle fleet and distribute as needed
Prepare & analyzed fleet vehicle expenses
During his time here Rayon has proven to be reliable, hard working, dedicated, accountable and trustworthy. I would not hesitate to recommend him for any position, which he may amply for.
(Numbering, spelling, punctuation and grammar are all as in the original)
12Competitions for one permanent and one temporary 12 month Administrative Support Clerk position in the Mississauga RTO were posted in November 2005. The grievor applied for those positions as did several others, including other unclassified Administrative Support Clerks then employed in the Mississauga office. The competitions were conducted by Ms. Jeanes and Sarah Robson, a senior manager who then worked in the Mississauga RTO on a secondment to special projects in the Client Account and Service Branch. The competitions were completed in early 2006. The grievor was not one of the successful candidates.
13The grievor’s unclassified employment was not renewed again in May 2006, at the end of his second consecutive six month contract. The reasons Ms. Jeanes gave the grievor for not renewing his contract included something to the effect that collective agreement would not allow it. Roughly 5 weeks later the employment of Irma R., another unclassified Administrative Support Clerk who had by then completed two consecutive 6 month contracts, was renewed for a further 3 month term.
The Issues
14The thrust of the union’s case was that before the grievor was hired the treatment of blacks in relation to employment opportunities in the Mississauga RTO was disadvantageous in comparison with the treatment of non-blacks, that management hired the grievor without knowing that he was black, that its treatment of the grievor after he was hired – in his employment itself, in the Mississauga job competitions and in the decision whether to renew his contract – was different and disadvantageous in comparison with the treatment that non-blacks received in similar circumstances, and that those differences were based at least in part on the grievor’s colour and racial origin.
15The union bore the onus of proving that discrimination on the basis of race or colour played a part in the outcome of the competitions or the non-renewal of the grievor’s unclassified employment. Certain of my observations in Damani, GSB# 1995-1581, bear repeating here:
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 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. …
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.
16Before the evidentiary hearing began, the union was directed to provide particulars of the allegation of fact on which it relied, including particulars of any alleged acts or omissions on which it relied demonstrate that particular members of management had engaged in discrimination contrary to Article 3.1 of the collective agreement. The particulars that the union delivered contained many allegations. The union led no evidence whatsoever with respect to a number of those allegations. Of the allegations about which it did lead some evidence, or asked questions of the employer’s witnesses, only some were actually referred to by the union’s representative in her closing argument. In response to my question about that, the union’s representative stated that the union had considered the particulars and the testimony, and that the allegations to which union counsel had expressly referred in closing argument were the only ones on which the union still relied at that point. Briefly summarized, the allegations pursued in closing argument were the following:
Prior to the grievor’s hiring in 2005, Ms. Jeanes had refused to accept resumes from two black women: Sarah B. and Anoma W.
Ms. Jeanes was enthusiastic and positive in the telephone conversation in which she hired the grievor, when she did not know he was black, but cool and unwelcoming when she met him for the first time on his first day of work.
During the telephone conversation in which she hired him, Ms. Jeanes said the grievor would be providing support to “Collections” and that he would be trained to provide such support. After he reported to work, Ms. Jeanes assigned the grievor to mail room and other duties. Five weeks or so after she hired the grievor, Ms. Jeanes hired Irma R., who was not black, on an unclassified 6 month contract and assigned her to provide support to the Collections section.
The grievor sought but was not given assistance with his mail room duties during customarily busy periods at the end of the month, when most tax remittances by cheque arrive. In this respect he was treated differently from those who had previously performed the mailroom function, who were regularly given assistance during those busy periods.
The grievor was not trained to perform reception duties on a back-up basis. In this respect he was treated differently from other administrative support clerks.
Ms. Jeanes discouraged the grievor from applying for the jobs that were posted in November 2005.
During the grievor’s employment the Director, Mr. Fox, gave the grievor “dirty looks” and did not speak to him, making him feel uncomfortable.
The first question in the oral interview for the Mississauga job competitions concerned the grievor’s prior work experience. The interviewers both recorded that his answer did not describe his work experience with the Ministry. He got fewer marks that he would have if he had described that work experience. The union says that he did describe that work experience, but if he did not then the interviewers should have prompted him to speak about it.
The second question asked in the oral interview concerned computer programs that the grievor had used. The interviewers recorded that he had named computer programs that he had used, but had not described how he had used them in his work. He got fewer marks that he might have if he had described how he had used the computer programs in his work. The union says that the grievor did describe his use of the computer programs.
The third question in the interview asked how the candidate would handle a situation in which a co-worker’s failure to perform his or her own work increased the candidate’s own workload. The grievor’s answer was given 3 marks out of 5. Another candidate’s answer, which the union says was essentially identical to the grievor’s, was given 4 marks out of 5.
The fourth question in the interview asked the candidate to identify common Ontario Public Service standards for telephone, correspondence and walk-in service. The interviewers marked him on the basis that he had missed a point about telephone service. The union’s position is that the grievor did cover that point in his answer.
Ms. Jeanes did not renew the grievor’s contract in May 2006 even though there were two unfilled vacancies for Administrative Support Clerks at the time. She told him she could not extend his employment beyond 12 months because of the union or the collective agreement, which was false. Ms. Jeanes later renewed the employment of Irma R., an unclassified Administrative Support Clerk who had by then been employed for 12 months, for a further 3 month term. During that extended term Irma R. performed mail room and other duties that the grievor could have performed.
Evidence and Findings
17The union called two witnesses: the grievor and his mother, Ms. Myles. In their testimony they expressed a number of beliefs about the motivations and conduct of various members of management. Mere statements of belief about disputed facts, no matter how fervently held or expressed, are not themselves evidence of the truth of the statements. Establishing that the facts are as a witness believes them to be depends on proving those facts on a balance of probabilities by cogent, reliable evidence. The union’s witnesses sometimes sought to justify their beliefs by reference to what they said they had been told by other people, people whom the union did not call as witnesses. With exceptions not applicable here, a witness’s testimony that someone else said something about a material fact in dispute is not a proper basis for a finding that what that other person purportedly said is true.
18The employer called four members of management as witnesses: Ms. Jeanes, Ms. Mariola-Pachura, Ms. Robson and Mr. Fox. It also called two employees in the bargaining unit: Michael S. and Colin F. Both of them worked at the Mississauga RTO before, during and after the grievor’s employment there. Both had performed the mail functions as unclassified Administrative Support Clerks, had gone on to perform other functions and had later become classified Administrative Support Clerks.
19In what follows I summarize the evidence and explain my conclusions with respect first to the allegations of discrimination against black’s prior to the grievor’s hiring, then the issues with respect to the way he was treated in his employment apart from the non-renewal, then the job competitions and finally the non-renewal. In making my findings in each of these areas, particularly in assessing which of conflicting accounts was more credible, I considered all of the testimony I had heard, the manner in which it was given, and the inherent probability in the circumstances of what each witness alleged.
The Alleged Prior Discrimination Against Blacks
20Ms. Myles testified that in late February 2004 Sarah B., a black woman who was spending time in the office as an Ontario Works volunteer,2 told her that she had asked Ms. Jeanes if there were any job openings and Ms. Jeanes had told her there were none. Ms. Myles believed that there were job openings at that time. She testified that she then went to Ms. Jeanes and asked the same question3 and got the same answer, which she considered to be false.
21The apparent basis for Ms. Myer’s belief that there were job openings at that time was that she had been told by another employee that that employee was scheduled to be interviewed a few days later. The employer acknowledges that some individuals were hired in March 2004, but not that the positions they then filled were still open for application in late February. The union has provided no evidence that any position in the Mississauga office was open for application in late February 2004 when Ms. Myles alleges that Ms. Jeanes said there were no job openings. In short, there is no evidence that what Ms. Jeanes is alleged to have said to Ms. Myles was untrue.
22Ms. Myles also testified that she believed it was Ms. Jeanes’ habit, when someone asked her about job openings, to suggest that they bring in a resume even if there were not then any openings, and that Ms. Jeanes had not made that suggestion either to her, or to Sarah, when they asked her whether there were job openings in February 2004. She concluded from this that Ms. Jeanes was not giving black people opportunities that she gave others.
23In or about March 2004, Ms. Myles met with Ken Fox and Charles Meehan, who occupied positions above Ms. Jeanes and Ms. Pachura-Allum in the management hierarchy. She told them that Ms. Jeanes and Ms. Pachura-Allum were “refusing to accept applications from black people.” She testified that Messrs. Fox and Meehan told her that something Ms. Jeanes had said (Ms. Myles was not sure what) was not what she had meant. She said that they also told her that Ms. Jeanes would be spoken to because “not accepting resumes” was wrong. Ms. Myles did not say that they had agreed or admitted that Ms. Jeanes had in fact refused to accept a resume.
24Ms. Myles was not a witness to the alleged conversation between Sarah and Ms. Jeanes. She had no direct knowledge of what may have been said in any such conversation. Sarah B. was not called as a witness.
25Anoma W. was another black woman who spent time in the office as an Ontario Works volunteer. Ms. Myles testified that Ms. W. told her she was fluent in French. Ms. Myles stated that at one point there was a vacancy for a bilingual receptionist for which Ms. W. was “hoping to be interviewed,” and that Ms. W. told her she had asked Ms. Jeanes if she could apply and Ms. Jeanes had said “they had nothing.”
26Ms. Myles had no personal knowledge of any conversation or other dealing between Anoma W. and Ms. Jeanes concerning employment opportunities. Anoma W. was not called as a witness.
27Ms. Jeanes’ testified that she received resumes from Ontario Works volunteers when they started, and at the end of their volunteer terms she would always suggest that they update their resume and leave a copy. She believed Anoma W. had done that. She could not recall whether Sarah B. had. She had not refused to accept any resume from anyone.
28Ms. Jeanes said both Sarah B. and Anoma W. had asked her about permanent positions. She testified that there had been none for which there was any pending competition that was open to non-employees. She noted that competitions for permanent jobs are generally closed – this is, only existing employees can apply – and that since volunteers were not employees they would not be eligible to compete for permanent positions in those circumstances. As for the suggestion that Anoma W. was fluent in French, Ms. Jeanes noted that Anoma W.’s resume had said only that she had a basic knowledge of French, which was not sufficient for a bilingual receptionist position in any event. Ms. Jeanes said she had told Anoma W. that she was not eligible to apply for permanent jobs because she was not an employee. She noted that Anoma W. had left her volunteer assignment before it was scheduled to end, because she had found a job outside the Ministry.
29Ms. Jeanes candidly observed that most Ontario Works volunteers were not qualified for the sort of contract work that became available in Operations from time to time. She said that this had been true of both Sarah B. and Anoma W. She had not or would not have considered them for contract positions because she had found their work unsatisfactory. She stated that of all the Ontario Works Volunteers who had worked in the office (several did each year), she had only hired one on a contract basis. The woman she had hired had been manager of a computer office in Russia, had had good skills and had proven herself capable. Ms. Jeanes was aware of one other Ontario Works volunteer who had been hired to work on a contract basis, but said that individual had not been hired by her. There was no challenge to Ms. Jeanes’ evidence about the qualifications of the one volunteer she ever hired, nor to her evidence about the unsatisfactory performance of the two volunteers on which Ms. Myles’ complaint focused.
30In any event, there was no reliable evidence to support the union’s allegations that Sarah B. and Anoma W. had been denied opportunities to submit a resume, either by Ms. Jeanes or anyone else. It was neither put to Ms. Jeanes nor argued that when Ms. Myles had asked her about whether there were job opportunities Ms. Jeanes ought to have invited Ms. Myles to submit a resume.
31The union utterly failed to establish an objective basis for Ms. Myles’ fervent belief that Ms. Jeanes and other members of management at the Mississauga RTO had engaged in discrimination against blacks before her son was hired.
The Grievor’s Hiring and Employment
32In support of the grievor’s claim of discrimination in the competitions and the non-renewal of his employment contract, the union particularized and the grievor testified about a number of events and aspects of his hiring and employment apart from the competitions and non-renewal themselves. Before dealing with the matters on which he and the union relied in closing argument, it is necessary to say something about the allegations that they abandoned at that stage.
33The issues abandoned in closing argument involved events and behaviour that in his testimony the grievor had stated or implied he thought demonstrated that management had been engaged in discrimination against him. These included the fact that the renewal of his first contract was only confirmed in the last few days of its term, and the fact that when he signed the renewal contract he received a 16 week notice of termination for purposes of the Employment Standards Act. Such notices are a standard incident of renewal contracts. That a hoped-for renewal is not fully approved and confirmed until the last minute is not uncommon.
34Another matter raised, pursued and then abandoned at the very end of the hearings concerned a delay in the grievor’s pay that occurred after his first six month contract was renewed. In his particulars and testimony the grievor alleged that Ms. Jeanes did not take the steps necessary to ensure that he was paid, and lied to him about whether she had done so. This was denied in the employer’s particulars, with which the employer produced to the union copies of email correspondence. It would have been apparent from that correspondence that, unless the correspondence was fabricated, Ms. Jeanes clearly had made repeated efforts to overcome obstacles to the grievor’s being paid promptly, and had done so before the grievor claimed to have complained to a more senior manager. The union never suggested that the correspondence was fabricated. Despite that correspondence, the grievor testified that he believed Ms. Jeanes had intentionally tried to prevent him from being paid.
35That the grievor still saw himself as singled out and victimized in respect of those matters when he testified in late 2007, despite his having had the opportunity to reflect on the employer’s particulars and obtain advice, speaks to the perspective from which he experienced, recalled and recounted the events of his employment generally. It is not surprising that the issues to which I have referred, and others, were not pursued in argument. The withdrawal does not neutralize the impact his testimony about them on the credibility of his testimony about other matters in respect of which he claimed to have similar perceptions. It was apparent that the grievor was inclined to see only the possibility of targeted disadvantage and discrimination in events for which far more plausible and benign explanations were apparent.
36During the period in issue the Mississauga RTO was organized into four sections, which were referred to in evidence as Audit, Collections, Services (or RST Services) and Operations. Operations supported the other three sections and managed the office premises. About 10 Administrative Support Clerks were employed in the Operations Section in the Mississauga office when the grievor worked there. They all reported to Ms. Jeanes, the Acting Manager of Regional Office Operations. When the competitions were being conducted about half of those Administrative Support Clerks were unclassified employees on contracts.
37The grievor was hired by Ms. Jeanes in a telephone conversation on a Friday in late May 2005. The grievor said that Ms. Jeanes seemed enthusiastic about hiring him during that conversation and that after five to eight minutes she offered him a job. He testified that she said he could start the following Monday as administrative support for the Collections department. He acknowledged, however, that there was no discussion of the duties he would perform, other than that they were general administrative duties like getting supplies and doing drafts of letters. He said Ms. Jeanes told him that after he started he would be trained in how to support Collections effectively, but also testified that was no discussion of any specific training he would receive.
38Ms. Jeanes testified that the grievor was one of five people to whom she had decided to speak that day about a temporary position that had arisen as a result of the temporary secondment elsewhere of one of her administrative support clerks. She did not have a detailed recollection of the conversation. It is evident that her testimony about it was based in part on an assumption that she had said what she customarily says when interviewing candidates for temporary contracts as clerks. She testified that she would have described the office and the four sections into which it was divided. She would also have told the grievor that as an Administrative Support Clerk he would be in the Operations section and would be working for her providing support to the other three sections as required. She would have described generally the duties that the operations section performs in providing administrative support to the three other sections. She denied having said the grievor would be providing support (exclusively or primarily) to the Collections section. She said she would not have told him what his particular duties would be because it was not her practice to describe or offer a specific assignment when hiring a temporary employee.
39The union argues that I should prefer the grievor’s version of the hiring conversation where it varies from what Ms. Jeanes believes she had said, because he claimed to remember details of the conversation and she did not.
40The hiring of temporary support clerks was evidently a regular and ordinarily unremarkable event for Ms. Jeanes. There was no particular reason for Ms. Jeanes to have made or retained a note of anything about the conversation when it occurred, other than its outcome (the grievor’s acceptance). On his own evidence the grievor made no complaint and expressed no concern or surprise when he was later given a work assignment different from the one he alleges Ms. Jeanes offered in the hiring conversation. The grievor’s failure to complain at the time is not necessarily fatal to the credibility of his account of the conversation, but has the consequence that there was no reason for Ms. Jeanes to have preserved her own recollection of the conversation while it was still fresh in her mind. She would only have had notice of the claim that she had promised a particular assignment when the union eventually particularized the basis for its allegations of discrimination. It is not at all surprising, therefore, that in answering questions about the conversation she relied as she did on her usual practices in hiring temporary clerks.
41There is nothing improbable about Ms. Jeanes’ having had a practice of describing the job generically, rather than offering particular duties, when hiring temporary clerks. There was no evidence that Ms. Jeanes had done anything inconsistent with such a practice when hiring any other temporary Administrative Support Clerk – no evidence, for example, that Irma R. was promised particular duties during her hiring conversation. The evidence before me provided no reason why Ms. Jeanes would have departed from the practice she described and offered the grievor a job defined more narrowly than would have been necessary. I have concluded that she did not.
42The grievor began work May 24, 2005. He was to meet with Ms. Jeanes for orientation. The grievor recalled that two others were also present for orientation. He gathered they were summer students who had worked there before. He said all three met with Ms. Jeanes, Ms. Pachura-Allum and a third individual. The grievor testified that Ms. Jeanes was “more surprised” and “didn’t know who I was.” He also testified that she said “oh, you’re Rayon” when they met. He said that it “wasn’t exactly a warm greeting,” that she did not seem as enthusiastic as she had sounded in their telephone conversation, and that “from her face and mood” (neither of which he described further) he concluded that Ms. Jeanes “might have had a problem” with his being black. He said Ms. Pachura-Allum’s reaction was similar, but more “subtle.” In cross-examination he said Ms. Pachura-Allum’s tone in speaking to him in this meeting was different from her tone in speaking to the returning summer students.
43Both Ms. Jeanes and Ms. Pachura-Allum testified that they had no recollection of being unwelcoming in their interaction with the grievor on his first day of work.
44Again, the grievor had made no complaint about the initial greeting at the time, so there would have been no reason for Ms. Jeanes or Ms. Pachura-Allum to preserve their recollections of an event that, from their perspective, was in no way noteworthy. That Ms. Jeanes’ demeanour may been more reserved in person and in the presence of others than it had been over the telephone, one-on-one, does not seem so unusual as to require explanation or suggest a discriminatory motivation. The same may be said of any differences there may have been between Ms. Pachura-Allum’s interaction with someone new to the workplace and someone who was returning to it.
45The grievor testified that after a few weeks, having performed other duties in the meantime, Ms. Jeanes told him he would be taking over the mail room functions from another unclassified clerk, Colin F., who then trained him in those duties. The grievor did not complain about this assignment at the time. He did not say to Ms. Jeanes then that he thought he had been hired to work for the Collections section, nor is there any evidence that he ever said that to any member of management before the decisions about which he has grieved.
46Ms. Jeanes testified that the mail function was generally assigned to a new hire, because in that position they learn a lot about the functioning of the office, and get to put faces to names. She acknowledged that the function is not one for which she would expect to get volunteers if she sought them from among experienced clerks who already had other assignments.
47The mail handling functions were not the only functions to which the grievor was assigned. He was assigned other duties that are customarily bundled with the actual mail handling duties, such as the opening of various parts of the office in the morning. Once he became familiar with the mail and related duties he was also assigned further duties, like handling booking of boardrooms and “program vehicles” duties, which involved the booking of program vehicles, keeping track of their maintenance and processing expense claims related to the use of vehicles.
48Irma R. was hired about five weeks after the grievor was hired. The grievor said he thought she had been hired to do the Collections job that Ms. Jeanes had told him about in the hiring conversation on the telephone. The grievor’s personal knowledge of Irma R.’s duties was limited to seeing her pick up mail that had been put in a folder for Collections and seeing her at a desk in the collections area when he had occasion to go there. He acknowledged that he also delivered mail to the Collections section. He said he had looked into what she was doing by speaking to someone, but was vague about who that was.
49Ms. Jeanes testified that there were two classified Administrative Support Clerks assigned to assist with Collections, and that anyone doing the work that those permanent clerks did would have to receive extensive training. She stated that Irma R. had not done that sort of work or received that training. She said that Irma R. helped distribute mail to collectors, did filing and logged mail that had been returned undelivered in a spreadsheet. This account is not inconsistent with the cover letter with which Irma R. submitted her application for the competitions in November.
50It is in the nature of these positions that newly hired temporary clerks will not all have the same duties. Although the duties that the grievor was assigned were not particularly desirable for clerks already familiar with the people and functions of the office, it is not apparent that Irma R.’s duties were materially more desirable or advantageous for a newly hired temporary clerk. I am not persuaded that differences between the grievor’s duties and those of Irma R. reflect discrimination against the grievor on the basis of his race or colour. Nor do I accept the union’s argument that his assignment to mail handling duties continued when his first 6 month contract was renewed warrants an inference that the grievor was a victim of discrimination.
51It is common ground that the grievor was not asked to perform reception backup and was not trained to do so. He acknowledged that he never asked for the opportunity to perform reception backup. The receptionist function is assigned to a particular clerk on a full-time basis. Other clerks provide backup during the receptionist’s breaks and as otherwise needed. It was Ms. Jeanes’ evidence, however, that the clerk assigned to perform the mail duties does not provide backup for the receptionist function (and therefore would not be trained to do so) because the times of day when reception backup was required generally overlapped the times when certain mail and related duties had to be performed. There was no evidence to the contrary.
52There is quite a lot of incoming mail to handle near the end of the month, just before the deadline for tax remittances. On those days the incoming mail often cannot be processed in a timely way by just one clerk. The grievor said that when he first arrived he had been assigned to help Colin F. with the mail, but after he took over the function he had received no help at all. When asked if he had ever asked for help, he said he had “mentioned it” to Ms. Jeanes on one occasion, but on that one occasion had not been helped. In cross-examination he acknowledged that he had been helped by certain named clerks on a few occasions, but maintained that he had not received help on other occasions. As for the one occasion when he claims to have asked Ms. Jeanes for help, he did not claim to have followed up on his alleged request by telling Ms. Jeanes that no help had arrived.
53Ms. Jeanes testified that for each administrative function that is assigned to a particular clerk there is another clerk who is assigned as backup, to perform that function when the assigned clerk is unable to do so. One of the duties of the backup for the mail function was also to help the mail clerk with incoming mail on busy days. In addition, the other clerks understood that they were to help with the mail when needed. Ms. Jeanes testified that the grievor had a backup (whom she named), that she had seen the backup assisting the grievor, and that she had also seen various other clerks helping the grievor with the mail more than once.
54Ms. Jeanes acknowledged in cross-examination that when she had seen clerks helping the grievor she had not remained watching to see how long those clerks had assisted, and had not made written notes of the occasions when other clerks had helped the grievor. I do not accept the union’s argument that these answers made her testimony somehow less reliable or pertinent to the issue raised by the grievor. Frankly, I would have doubted her testimony if she had claimed to have watched at length or made notes of events that, on her evidence, were unremarkable at the time. She did not recall the grievor’s ever asking her to provide him with assistance. Indeed, she said, she had asked more than once if he needed help and he had always said either that he did not need help or that he already had help. I accept her evidence on these points. If the grievor received less assistance than previous mail clerks had, I am satisfied that that was not the result of anything Ms. Jeanes or any other manager did or failed to do.
55When the grievor was employed in the Mississauga RTO, Ken Fox was the Director, Western Region and had his office in the Mississauga RTO. The grievor testified that he had no direct dealings with Mr. Fox. He said Mr. Fox never spoke to him, but Mr. Fox would “glare” when he saw him, which made him feel uncomfortable. Mr. Fox testified that he remembered speaking to or with the grievor on at least one occasion, which he described. He testified that he had not looked at the grievor any differently than he had at anyone else. Indeed, there is no evidence that the grievor or anyone else had studied how Mr. Fox looked at people and observed that his facial expression when looking at the grievor had been different from his facial expression when looking at others in similar circumstances. There is no evidence that the grievor brought the alleged staring and his reaction to it to anyone’s attention at any time before the decisions about which his grievances complain. I am not persuaded that Mr. Fox behaved in any way that suggests that he or anyone else was engaged in discriminating against the grievor on the basis of his colour or race.
56Ms. Jeanes testified that the secondment of the classified clerk whose absence had led to her hiring the grievor on contract was extended for another 6 months, and that that led to the grievor’s contract being extended for 6 months. She also testified that she was able to renew his contract at that time because by then she knew that the competitions in issue were going to be conducted during his renewal term.
57Notice of the job competitions in issue was posted in November 2005. Ms. Jeanes testified that she brought the competition to the attention of each of the Administrative Support Clerks then working the Mississauga RTO, including the grievor. She had no present recollection of what she may have said to the grievor about it, other than that she would have said “go for it” or words to that effect. The grievor testified that she did not tell him about the posting, or at least he did not remember her doing so. He also testified that she told him that the duties of the posted job would be different from the duties he was then performing. He said that he found that statement discouraging. There is no suggestion that such a statement, if made, would not have been true. Whether or not Ms. Jeanes did tell the grievor that the duties of the posted job would be different from the duties that the grievor was then performing, I am not persuaded that Ms. Jeanes said anything to the grievor that was intended or calculated to discourage the grievor from applying for the Mississauga competitions.
The Job Competitions
58The job competitions in issue were the first Ms. Jeanes had been involved in conducting. The other member of the interview panel, Sarah Robson, had been involved in conducting several job competitions, including competitions for Administrative Support Clerk positions. Ms. Robson took the lead, and provided Ms. Jeanes with guidance as they went along. There was no evidence, and no suggestion in argument, that Ms. Pachura-Allum played any role in the conduct of the competitions or did anything that could have influenced the conduct or outcome of the competitions.
59Ms. Robson and Ms. Jeanes both described the process they followed in conducting the competition. On their evidence, the job competition was conducted in the usual way. The job posting solicited written applications. The written applications were screened to ensure that the applicants claimed to have the qualifications specified in the posting. Those who did, including the grievor, were given an oral interview and a written test.
60In the oral interview candidates were asked prepared questions about their current and prior work experience, computer experience, interpersonal skills, and knowledge of government service standards and about how they would prioritize a list of particular tasks of the sort that an Administrative Support Clerk may be called upon to perform. The panel members took turns asking the questions and both took notes of the answers given. They testified that if it seemed a candidate had not understood a question the question would be repeated, but except in those circumstances and to that extent the panel members would not prompt a candidate with respect to an apparently incomplete answer. Each panel member marked the candidate’s response to each question against a marking scheme that identified what sorts of things the competition panel should look for in the responses, both in the substance of the answer and, particularly with respect to the first and last of the five questions, concerning the candidate’s communication and presentation skills. Neither panel member asked the other what mark the other was giving an answer before assigning a mark to that answer herself.
61The written test involved the use of a computer to draft a letter, prepare simple Lotus 123 spreadsheets, and create, populate and format a table in WordPerfect according to certain specifications. Candidates were also asked to write out the steps they would take to accomplish a described task and to write out the security procedures they follow to ensure the security of their personal work areas. Ms. Robson and Ms. Jeanes marked the written test together. In that process Ms. Jeanes deferred to Ms. Robson’s greater experience.
62As I noted earlier, the union’s criticism of the conduct of the competitions focuses on the panel’s handling of answers the grievor gave to four of the five oral interview questions. There is no attack on the pertinence of the questions asked in either the oral interview or the written test, nor on the answer guide, the marking scheme applied or the weight that scheme gave to each of the questions, nor on the marks assigned to the grievor’s answers to the written test.
63In the cases of three of the four questions in issue, the grievor alleges that the panel members’ notes do not fully reflect the answers he gave. He testified that during his interview the panel members, and particularly Ms. Jeanes, had not seemed to be writing as much as he thought they should. Although the panel members’ notes were produced to the union before it delivered its particulars, the grievor approved particulars alleging that the notes were incomplete without having actually read the notes himself.
64Both competition panel members testified that their notes reflected the grievor’s answers. I accept that they captured enough of the grievor’s answers that the panel members could remember the pertinent details of the answers when they assigned marks to then a short while later.
65The first question in the oral interview asked “Describe for us your current and previous work experience, education or training and describe how it relates to the Admin Support Clerk position.” Ms. Robson noted that the grievor did not seem to understand the question and that the question was read to him again. Both interviewers noted that he said nothing about his current work experience at the Mississauga RTO. The grievor testified that he did. I find he did not.
66The union argued in the alternative that if he did not, the interviewers should have prompted him to describe his current work experience, since they both knew he had been working at the Mississauga RTO. There is no evidence that any other candidate in this competition was prompted in any way other than by repeating a question. The approach the panel members says they took, and which I find they did take, is both conventional and defensible in this context.
67It is important to bear in mind that the issue here is whether the treatment of the grievor in the job competitions involved discrimination on the basis of race, not whether the conduct of the competition was flawed in some manner that would amount to a breach of Article 6.3. The question whether the conduct of the competition was flawed is pertinent only to the extent that the flaws might, if proven, provide direct or circumstantial evidence of discriminatory treatment on the basis of race or colour.
68The outcome of the competition was based on the marks the candidates received. For each of the seven candidates the total scores assigned by Sarah Robson (“SR”) and Michelle Jeanes (“MJ”) for the oral interview, the jointly determined score for the written test and the “total”4 for comparison purposes were as follows:
| Candidate | Oral Interview (out of 55) SR | Oral Interview (out of 55) MJ | Written test (out of 45) | Total |
|---|---|---|---|---|
| Candidate A | 48 | 49 | 32.5 | 162 |
| Candidate E | 36 | 42 | 42 | 162 |
| Colin F. | 44 | 44 | 36 | 160 |
| Candidate S | 37 | 39 | 40.5 | 157 |
| Irma R. | 27 | 27 | 30 | 114 |
| Grievor | 26 | 27 | 24 | 101 |
| Candidate K | 27 | 24 | 24 | 99 |
The two positions available were offered to the candidates with the highest marks. The one permanent position was offered to and accepted by Candidate A. Candidate E had been converted into a vacant position in the Hamilton office and declined a position in the Mississauga office. Colin F. was awarded the 12 month temporary position. A few months later the competition was reopened to fill two more vacancies. Colin F. accepted one and Candidate S accepted the other.
69Ms. Jeanes testified that she thought of Colin F. as being black. Colin F. testified that his father was from Jamaica and his mother was from Trinidad. Ms. Myles, however, considered Colin F. to be an “Indian guy from the Caribbean.” Speaking of an occasion when a senior member of management in the Mississauga RTO had said something that indicated that he thought Colin F. was black, Ms. Myles testified that she guessed “they” thought dark was the same as black regardless whether the person had straight or kinky hair. In closing argument, union counsel argued that because Ms. Myles did not consider Colin F. to be black he was not universally recognized in the workforce as black. It followed, she said, that the treatment of Colin F. was not a barrier to finding that the treatment of the grievor involved discrimination on the basis of his being black. In assessing the evidence I was open to the possibility that Ms. Myles might be a non-stereotypical white racist who did not think dark is the same as black and held prejudices against those of the grievor’s race and colour but not against those of Colin F.’s race or colour. I was not persuaded that she was such a person, however.
70The union alleged throughout that Ms. Jeanes was inclined to discriminate on the basis of race and colour, or at least the grievor’s particular race and colour, and did so to the grievor’s detriment in the conduct of the competition. Apart altogether from whether that allegation is true, it is important to note that the union did not make a similar allegations about Ms. Robson.
71On the basis of Ms. Robson’s testimony I was satisfied that her marking of candidates’ oral interviews was entirely unaffected by anything Ms. Jeanes might have said or done during their time together. It also seems clear from her testimony that the marks that were assigned to the written tests were the marks she proposed, which were not substantially influenced by anything Ms. Jeanes may have said or done.
72On the basis of Ms. Robson’s testimony I was satisfied that she took the same approach in interviewing and marking all of the candidates, regardless of race or colour or any other improper or irrelevant consideration. I was also satisfied that her notes reflected the gist of what she heard in each of the interviews, including the grievor’s. Her approach to marking was reasonable, as were the marks she assigned. With respect to question 4, for example, it was a matter of judgment whether the grievor’s answer to question 4 was the “same as” an answer for which another candidate got one mark more than he did. Ms. Robson’s conclusion that the other candidate’s answer warranted a higher mark was not unreasonable.
73In its closing argument the union did not challenge the grievor’s mark on the written test. That mark was substantially lower than the marks achieved on that test by the successful candidates. That difference was so large that even if the panel had given the grievor the maximum mark for each of the four oral interview questions referred to in the union’s closing argument, the grievor would still have had a lower total mark than the successful candidates did.
74Comparing the marks assigned by Ms. Jeanes and Ms. Robson, Ms. Jeanes’ were lower for one non-black candidate, the same for two candidates, and higher for four candidates, including the grievor. Ms. Jeanes treatment of the grievor in the competition was not substantially different from that of Ms. Robson, who was not alleged to have engaged in discrimination on the basis of colour or race.
75On the basis of the foregoing I was not persuaded that the denial to the grievor of the positions that were the subject of competitions 6275 and 6276 involved any breach of either Article 3.1 of the collective agreement or of the Ontario Human Rights Code. Nor, to be clear, was I persuaded that in the course of the competitions Ms. Jeanes had discriminated against the grievor on the basis of his race or colour.
The Non-renewal of the Grievor’s Employment
76The grievor testified that near the end of his second contract he asked Ms. Jeanes whether his contract would be renewed again. She replied that it would not be. He testified that she had said it was out of her hands, that the collective agreement would not allow the renewal and that the union would protest. She had also said that he was an excellent employee, that she liked his work and work ethic. He said she told him she could not give him a contract that would carry through “without interruption,” but could terminate him and then call him back after a couple of days off because that “would eliminate me from ever becoming permanent.” He stated that he went to “the union” and “they said they don’t have a problem with it.” He concluded that if the union did not have a problem with it, then Ms. Jeanes did not want him around. “There’s no other way of interpreting it,” he said. In the course of his testimony about this he stated that “everything” Ms. Jeanes had told him was “a lie.”
77The grievor acknowledged in cross-examination that Ms. Jeanes signed the letter of recommendation quoted earlier in paragraph [11]. He also acknowledged that she asked him for an updated resume when they had the conversation about the non-renewal of his contract.
78Ms. Jeanes testified that it had been her understanding that she could not renew an unclassified contract unless she knew that a competition for the position was going to be held or reopened during the renewal term. She said she thought the collective agreement said that for anything more than 6 months there had to be a competition. She stated that she had been able to do the initial six month extension of the grievor’s contract because when she did so management knew the competitions in issue here were going to be conducted during that time.
79Ms. Jeanes also testified that although there were two unfilled Administrative Support Clerk positions when the grievor’s contract ended, filling them was on hold because the office was undergoing reorganization. Some existing Administrative Support Clerk positions were going to be moved from Operations to Collections and Services. Some existing Administrative Support Clerk positions were going to remain under Ms. Jeanes’ direction providing support to the building and to Audit. She said that it was not decided until June, after the grievor’s contract had ended, whether the two vacant positions would remain in Operations or move to another section. The decision was that they would remain in Operations. Until that decision had been made, Ms. Jeanes did not know she would be able to fill the positions by reopening the competitions conducted earlier.
80Ms. Jeanes said that when the grievor asked her whether his contract would be renewed, she told him that they could not renew it, that they were not filling vacancies, that they were going through a transition and did not know their needs. She said she also told him that to give him a contract they would have to have a competition pending. She did not deny having said that she could not renew his contract because of something in the collective agreement. When cross-examined on her reasons for not extending the grievor’s contract further she said they were that the individual he was filling in for had come back, the temporary position that individual’s absence had created was no longer there, the work was not there and there was no competition pending. The decision not to renew the grievor’s contract was made by Ms. Jeanes. She testified in cross-examination that Ms. Pachura-Allum did not participate in or influence the decision. There was no evidence, and no suggestion in argument, to the contrary.
81Ms. Jeanes testified that after the grievor’s contract ended the duties he had been performing were distributed among the remaining Administrative Support clerks. The mail handling portion was assigned to Irma R., whose contract was to expire near the end of June.
82As I have noted, Ms. Jeanes testified that in June it was finally decided that the two unfilled Administrative Support Clerk positions would remain in Operations. Ms. Jeanes expected that she would fill those two positions by reopening the competition held earlier that year. Having regard to the candidates’ marks in that competition, Colin F. and Candidate S would be the next in line for positions. She expected that Colin would accept, and in due course he did. She though Candidate S would not accept a position, however, because she was then in another office acting in a higher capacity. In that event the candidate with the next highest mark – Irma R. – would be offered the second position. There was work for a temporary clerk pending the filling of the vacancies. For these reasons she said, Ms. Jeanes sought to renew Irma R.’s contract for a short period. She thought that was possible because there would, in effect, be a competition during that renewal term. Ken Fox approved the recommended renewal.
83The collective agreement contains these provisions:
8.6.1 Where an employee is assigned temporarily to a position, Article 6 (Posting and Filling of Vacancies or New Positions) shall not apply except where:
(a) the term of a temporary assignment is greater than six (6) months’ duration, and
(b) the specific dates of the term are established at least two (2) months in advance of the commencement of the temporary assignment.
31A.15 CONVERSION OF UNCLASSIFIED POSITIONS TO CLASSIFIED POSITIONS
31 A.15.1.1 Where the same work has been performed by an employee in the Unclassified Service for a period of at least eighteen (18) consecutive months, except for situations where the unclassified employee is replacing a classified employee on a leave of absence authorized by the Employer or as provided for under the Central Collective Agreement, and where the ministry has determined that there is a continuing need for that work to be performed on a full-time basis, the ministry shall establish a position within the Classified Service to perform that work.
31 A.15.1.2 Where the ministry has determined that it will convert a position in accordance with Article 31A.15.1.1, the status of the incumbent in the position will be converted from unclassified to classified, provided that the incumbent has been in the position in question for at least eighteen (18) months.
84Article 8.6.1 says that a temporary assignment of greater than six months must be filled initially by competition. Although there have been cases in which the union argued that consecutive six month assignments have been used to fill assignments that the employer had known in advance would last more than six months, and should therefore have been filled initially through a competition, the article does not speak directly to the renewal of six month contracts or to the holding of competitions during the term of renewal contracts.
85If the employer employs an unclassified employee or employees to do the same work for 18 months it risks the consequences prescribed by Article 31A.15. Those consequences may well be less attractive to the employer than the alternative of filling a new or otherwise vacant classified position through a competition in accordance with Article 6.3 of the collective agreement. Article 31A.15 is an incentive to the employer to determine whether there is a continuing need for work being performed by an unclassified worker or succession of unclassified workers and, if so, make that need the subject of a new classified position that is filled by competition. There is nothing improper about the employer’s dealing with its ongoing needs by creating a classified position and filling it by competition before such a position is created and filled without a competition by operation of Article 31A.15.
86Mr. Fox was the director of the Western Region during the period in issue. His responsibilities included the Mississauga office, where he was located. His approval was needed for any new or renewal unclassified employment contract. He testified that his approval for a second contract was always conditional on the manager’s running a competition within the second six months. He said that this was primarily to avoid the collective agreement consequences of 18 months’ employment, and that he wanted to ensure that anyone who came into the organization did so by way of competition. He stated that third contracts had only been approved on a few occasions and only if there was a competition in progress and they were awaiting its results. While he was asked in cross-examination whether contracts had ever been renewed other than in the conditions he described (to which he answered that he did not believe so), there was no suggestion that he was being untruthful when he made anticipated competitions a prerequisite to renewals.
87Employer counsel made no attempt to persuade me that what Ms. Jeanes had said to the grievor about the collective agreement was an accurate interpretation of it. The focus of argument was properly on whether she honestly believed there was such a constraint on renewals, or whether it was a “lie” – that is, something Ms. Jeanes knew to be false – that had been used as a pretext to obscure real reasons, which the union would have me infer included the grievor’s colour and race.
88Some of the remarks that the grievor says Ms. Jeanes made when explaining why his contract could not be renewed without interruption indicate an awareness on her part of the possibility of his becoming permanent as a result of a further assignment without interruption, and a concern that that not be the result. In view of Mr. Fox’s testimony, which was not seriously challenged, I have no doubt that Ms. Jeanes thought she could not renew a contract a third time unless there was a pending competition from which she was awaiting results, and that she thought this had something to do with something in the collective agreement. It is unfortunate that she expressed this in terms that made it appear the union was the obstacle, although I note that the grievor did not return to Ms. Jeanes for clarification after he says he was told otherwise by the union.
89Although the collective agreement did not prohibit Ms. Jeanes from renewing the grievor’s contract a third time, its provisions were clearly part of the reason for Mr. Fox’s pending competition rule. I find Ms. Jeanes honestly thought that this pending competition rule precluded her from renewing a contract for a third time when she could not yet say that there would be vacancies to fill with candidates from the competition that had been run earlier. In all the circumstances I am not persuaded that what she said to the grievor about the collective agreement and the union demonstrates that she was surreptitiously engaged in discrimination on the basis of race or colour.
90The reasons Ms. Jeanes gave in her testimony for not renewing the grievor’s unclassified employment were rational, plausible and entirely adequate to explain such a decision in the circumstances. I am satisfied that they were the actual reasons for that decision, and that the grievor’s race and colour played no part in the decision. However much the grievor and his mother may believe that he was a victim of discrimination on improper grounds, the evidence did not persuade me of that on a balance of probabilities.
Disposition
91For the foregoing reasons, the grievance of April 27, 2006, GSB File# 2006-0929, is hereby dismissed. The grievance of March 17, 2006, GSB File# 2006-0659, is dismissed in so far as it alleges that there was a breach of Article 3.1 in the conduct or outcome of the two Mississauga competitions.
Dated at Toronto this 16th day of December 2009.
Footnotes
- It was not in dispute that she believed this. Whether it was true was very much in dispute.
- Ontario Works is a program pursuant to which social assistance recipients are provided with unpaid opportunities to work in order to enhance their job skills and work history and, hence, their prospects for other gainful employment. The unchallenged evidence of the management of the Mississauga RTO is that they had no control over the number or identities of the volunteers assigned to their office, and that these volunteers did not have employee status.
- I note there is no suggestion that Ms. Myles’ question should have been understood by Ms. Jeanes as an expression of Ms. Myles’ personal interest in moving from her auditor position to any position that Ms. Jeanes might have been in a position to speak about.
- In arriving at the total score for each candidate, each panel member added the score she had assigned the candidate for the oral interview to the jointly determined score for the candidate’s written test, and then those two results were added together.