PSGB# 2020-0136
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE OF ONTARIO ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Lawrence
Complainant
- and –
The Crown in Right of Ontario (Ministry of the Solicitor General)
Employer
BEFORE
Allen Ponak
Vice Chair
FOR THE COMPLAINANT
Omar Lawrence
FOR THE EMPLOYER
Jordanna Lewis Treasury Board Secretariat Legal Services Branch Counsel
SUBMISSIONS
April 30, May 17 and May 30, 2021
Decision
ISSUE AND BACKGROUND
1Mr. Omar Lawrence (the “Complainant”) is a sergeant at the Toronto South Detention Centre. On June 17, 2020, he filed a complaint with the Public Service Grievance Board (“PSGB” or “Board”) alleging unfair and inequitable hiring practices following the appointment of an acting Institutional Training Manager (“ITM”). He alleged that “the position … is a specialty sergeants’ position, where many racialized sergeants have expressed interest…. in order to advance their career, and for developmental opportunities” (Form 1, page 1). Mr. Lawrence requested full redress, the implementation of fair and equitable hiring and developmental opportunities, and damages for pain and suffering as well as punitive damages. Several other sergeants filed very similar complaints at approximately the same time, also in reference to the acting Institutional Training Manager appointment, but these complaints were eventually withdrawn (no details were provided about the terms, if any, under which these other complaints were withdrawn).
2After the matter was referred to the Board, Ms. Jordanna Lewis, counsel for the Employer, requested particulars of the complaint. She also served notice that the Employer would likely raise a preliminary objection that the Board lacked jurisdiction to address the merits of the complaint, citing several possible grounds.
3A conference call was convened on November 6, 2020 attended by myself, Mr. Lawrence, and Ms. Lewis (and two of the complainants who eventually withdrew their complaints). On November 9, 2020, Ms. Lewis made a written request to Mr. Lawrence for the following information:
Which term and condition of your employment contract, employer policy, or legislation do you claim the Ministry breached? If you are claiming the employer breached a specific policy or legislation, what sections of that policy or legislation do you claim the Ministry breached?
What material facts will you be relying on to establish that race was a motivating factor in the Ministry not selecting you for the Institutional Training Manager position?
What material facts will you be relying on to substantiate the allegation that “unfair and inequitable practices” related to specialty posts generally have been taking place for “many years” at Toronto South Detention Centre (“TSDC”)?
What material facts will you be relying on to substantiate the allegation, that you experienced discrimination in relation to the April 15, 2020 Expression of Interest (EOI)?
Identify any and all other facts you intend to rely upon for your complaint.
4Mr. Lawrence responded to the request for particulars on February 5, 2021. Ms. Lewis then formally raised two preliminary objections: 1) no prima facie case; and 2) untimeliness. It was agreed that these objections could be addressed through written submissions which have now been received. It should be noted that the Employer’s submission focused on the first ground, the absence of a prima facie case, and reserved the right to raise other objections should the first ground be rejected.
THE COMPLAINT OF MR. LAWRENCE
5To appreciate the submissions with respect to the Employer’s preliminary objections, it is necessary to summarize the main elements of Mr. Lawrence’s complaint. There are several aspects to the complaint. First, the trigger for the complaint was the April 29, 2020 memo from Deputy Superintendent of Operations, Mr. Scean Charles, appointing Sergeant MM1 to the role of acting Institutional Training Manager. The memo noted that “Sergeant MM has formerly served as a member of the Institutional Search Team and is currently a member of the institutional Crisis Negotiator Team”. In his complaint, Mr. Lawrence stated that the “position was directly assigned to a selected sergeant” (Form 1, page 1), which he considered unfair and unethical. He alleged that the hiring process deprived other sergeants, especially racialized ones, himself included, of developmental opportunities.
6In his statement of particulars, Mr. Lawrence elaborated that “the employer violates the terms of employment by appointing a fix term acting sergeant to a coveted position. Sergeant MM (note in original, Mr., Lawrence simply referred to “XXXX”) was handpicked …. and there was no expression of interest posted for this position” (Lawrence statement of particulars, February 5, 2021). Similarly, in a May 2020 letter from Mr. Lawrence to the Deputy Minister that accompanied Form 1, Mr. Lawrence, alleged that “there was no practice of an expression of interest or internal job posting for transparency purposes” (Lawrence letter to D. Richardson, Deputy Minister, May 18, 2020).
7In alleging that the appointment to the ITM position was unfair, Mr. Lawrence drew particular attention to the testing process, suggesting it favoured some candidates over others. In his letter to D. Richardson, the Complainant wrote:
I find the testing process to be discriminatory on the pretext that the above process is skewed; the main mitigating factor is on the basis that position is a learning and development position, whereby employee is encouraged to participate in performance readiness assessments. The idea here is to set attainable goals with the prospect to enter plan career goals into talent management system; for future consideration for learning and developmental opportunities; I believe that is the learning objective.
In retrospect. this new alternative process is futile because it erodes a system that is tried and true for fairness and equitability, when consideration is sought for learning opportunities.
Given the measures taken it is probable that this is a strategic measure installed in consideration of the demographic of the applicants; its also plausible that this deliberation is factual based on the outcome did not solve the notion that the employer action injudiciousness; causes a bias, in respect to the selection process. These premises are difficult to prove, but one could beg to question whether the maneuver was willfully orchestrated by the Administration authority to circumvent the traditional approach by giving short term acting assignment.
The test is not standard, and the question is why now? Why is it, when an increase number of racialized managers began to express interest in the position, a testing standard is implemented.
Mr. Lawrence also raised testing in his particulars as follows (page 2):
I find the testing process to be discriminatory on the pretext that the above process is skewed; the main mitigating factor is on the basis that [the] position is a learning and development position whereby employee is encouraged to participate in performance readiness assessments. The idea here is to set attainable goals with the prospect to enter plan career goals into talent management system; for future consideration for learning and development opportunities; that is the learning objective.
The performance management and performance readiness appraisal are profoundly destructive for morale.
8A second aspect of Mr. Lawrence’s complaint is that the appointment of a non-racialized applicant to acting ITM constituted discrimination on the basis of race because it deprived racialized applicants of crucial career advancement opportunities. Mr. Lawrence indicated that “it is probable that this was not the intention, but it has garnered a negative impact which has discriminatory impact” (Lawrence letter to D. Richardson, May 18, 2020). I note that in the particulars provided by Mr. Lawrence there is no further elaboration regarding the alleged discriminatory behaviour, other than suggesting that the Employer had violated the Ontario Human Rights Code and specifically referring to the testing process.
9The third element of Mr. Lawrence’s complaint is that hiring process defects are not restricted to the ITM hiring. He cited several past hiring processes that he alleged were unfair or unethically conducted. These past examples were provided in Form 1 and his May 18, 2020 letter to D. Richardson and set out below:
Filling multiple positions within the Security department, which is considered as a speciality post.
The Executive Assistant to the Superintendent assumed the role of a Sergeant, where the individual had complete access to confidential information such as previous competition questions and candidates resumes, cover letters and applications.
Directly assigning a sergeant within the Records department, where there is no such post or vacancy.
Despite conducting the sergeant post picks, the senior administration team continues to deliberately reassign the sergeant positions i.e., individual who is assigned a post to a specific unit/floor is appointed into a speciality post and repositioning and creating in-house positions.
10In his submissions with respect to particulars, Mr. Lawrence cited the same list of alleged past violations of hiring processes, but provided no further details.
11To round out the factual background of the complaint, the Employer provided several documents that showed that: 1) an Expression of Interest notice was posted on April 15, 2020 for an Acting Sergeant Position (COM) Professional Development Opportunity (Lawrence letter to D. Richardson, May 18, 2020); 2) Mr. Lawrence was one of 28 applicants for the position (email from Singh to Cicak, May 1, 2020); 3) Mr. Lawrence was notified that he would be interviewed for the position and be given a written test (email from Singh to Lawrence, May 1, 2020; and 4) Mr. Lawrence voluntarily withdrew his application prior to the interview or taking the written test (email from Lawrence to Singh, May 11, 2020). In the email withdrawing from the competition, Mr. Lawrence wrote the following:
Thank you for forwarding the invitation to participate in the testing for a Professional Development Position as Acting Staff Sergeant. I do desire to have a full learning opportunities in the role as part of my learning and developmental plan. Regrettably, I will be withdrawing from the process. Please consider this submission as confirmation that I wish to withdraw my expression of interest submitted on April 29, 2020.
It should be noted that no documentation was provided with respect to the appointment of the ITM other than the notice of appointment itself.
PRELIMINARY OBJECTION OF EMPLOYER
12The Employer argued that management has the right to organize and direct the workplace, including determining postings and assignments, and that absent bad faith, discrimination, or capriciousness the Board could not interfere with management’s decisions. Specifically, the Employer raised two grounds for its objection: 1) the particulars do not disclose a prima facie case of discrimination; and 2) the particulars do not disclose a term or condition of employment that prima facie was allegedly breached. The Employer submitted that in the absence of a prima facie breach of an employment term or prima facie discrimination, the Board lacked jurisdiction to consider the merits of the complaint.
Discrimination Claim
13The Employer accepted for purposes of the current submissions that the complainant is “covered by the enumerated ground of race” (Employer brief, paragraph 20) but denied that there was any evidence that Mr. Lawrence suffered adverse treatment or that, if there was any adverse treatment, it was due to his race. It noted that the complainant had the burden of proof to demonstrate a prima facie case of discrimination: Peel Law Assn. v. Pieters (2013) ONCA 396.
14In terms of adverse treatment, the Employer submitted that senior management has discretion to make managerial appointments and simply because the complainant was not appointed does not amount, without something more, to adverse treatment. Simply claiming adverse treatment, did not, in and of itself, meet the threshold of establishing an evidentiary basis for a claim. The Employer noted that Mr. Lawrence had voluntarily withdrawn an expression of interest for a staff sergeant position after being invited to be interviewed and tested in May 2020 because of his unhappiness with the testing methods. It argued that “an unwavering belief that the Employer is being unfair is not sufficient to establish adverse treatment” (Employer brief, paragraph 35). The Employer cited three cases in support of these principles: Ontario Public Service Employees Union v. Ontario (Environment) 2008 CanLii 19779 (ON GSB); Ilika v. Ontario (Community Safety and Correctional Services) 2014 CanLii 76834 (ON PSGB); and Johnstone et al. v. Ontario (Community Safety and Correctional Services) 2019 CanLii 65197 (ON PSGB).
15Turning to whether race had any impact on the alleged adverse treatment, the Employer submitted that the complainant “has offered nothing more than his personal belief that he and other racialized staff are being passed over”, noting that “honest and genuine belief is not prima facie evidence of discrimination” (Employer brief, paragraphs 36 & 37). It was the Employer’s position that Mr. Lawrence had not offered any facts to back his claim that race was a factor in the appointment of the ITM or that he was treated differently because of his race. The Employer cited Laird v. Ontario (Community Safety and Correctional Services) 2009 CanLii 43638 (ON PSGB) for the proposition that failure to receive a promotion was not, in itself, evidence of discrimination.
16In addition to suggesting that Mr. Lawrence had not provided any evidence to support the allegation of discrimination, the Employer also highlighted certain facts based on the ITM process documentation which, it was argued, disproved that there was any discrimination. These facts included: a number of racialized employees had previously served in the ITM role; the current ITM posting was offered to several racialized employees who declined for various personal and work related reasons before the non-racialized incumbent was chosen; and, the complainant’s own initial Expression of Interest (EOI) for staff sergeant and subsequent voluntary withdrawal of his EOI prior to the testing process. Finally, the Employer referred to the other postings that the Complainant had cited in his submissions, arguing that any allegations of wrongdoing were untimely and that they lacked any details that would make them relevant to the current ITM process.
Term or Condition of Employment
17The Employer argued that Mr. Lawrence never identified a term or condition of employment that had allegedly been violated by the Employer. Instead, “what these alleged breaches…. really amount to is a claim of general unfairness and the Board has made it clear that such claims are without merit and the Board has no jurisdiction to hear them” (Employer brief, paragraph 71). In the absence of an identifiable term or condition of employment that was allegedly breached, the Employer asked that the Board dismiss the complaint because of failure to establish a prima facie breach. The Employer cited MacDonald et al. v. Ontario (Community Safety and Correctional Services) P-2013-0273 (ON PSGB) and Allen v. Ontario (Community Safety and Correctional Services) P-2007-2921 (ON PSGB).
18Alternatively, and also because of the lack of an identifiable term or condition of employment that had allegedly been violated, it was argued that the complaint could be dismissed under PSGB Rule 11 which reads:
Where the Board considers that a complaint does not make out a case for the orders or remedies requested, even if all the facts stated in the complaint are assumed to be true, the Board may dismiss the complaint without a hearing or consultation. In its decision the Board will set out its reasons.
19In the Employer’s submission, even accepting the Complainant’s facts as he saw them, there was still no evidence that a term or condition of employment had been breached. Therefore, there was no case for the Employer to meet.
20In arguing that no term or condition of employment had been identified as allegedly violated, the Employer provided the following explanation for what had occurred in the ITM competition (Employer brief, paragraphs 51 – 56):
To the extent that the Applicant refers to the ITM position and the memorandum dated April 29, 2020, the Employer submits that a number of racialized sergeants were either serving in the ITM role prior to the April 29, 2020 memorandum, or were offered the role on an urgent and temporary basis and declined.
In or around March or April 2020, the ITM position needed to be filled on a temporary and urgent basis because the individual previously in the role, who is racialized, went on a leave.
A sergeant, who is racialized, was identified and served in the role for a very short period. The sergeant moved on to another role.
As a result, another sergeant, who is racialized, was identified and offered the position on an urgent and temporary basis, consistent with the operational needs of the institution. The sergeant declined the role.
As a result, another sergeant, who happens to not be racialized, was identified and offered the role on an urgent and temporary basis. This sergeant accepted the role.
On April 29, 2020, a memorandum was issued announcing the individual who would be acting in the role.
SUBMISSIONS OF MR. LAWRENCE
21In response, Mr. Lawrence argued that his material did in fact disclose a prima facie case of discrimination and a breach of a term or condition of employment. In his submission, all employment contracts automatically include a prohibition against “constructive discrimination” in the workplace under Canada’s human rights law. Any discrimination on the basis of race (or any of the enumerated grounds) violated both the law and a term or condition of employment.
22To illustrate the alleged breach of his legal and employment rights, Mr. Lawrence attached more than 20 pages of emails and letters from him to various managers between January 2018 and April 14, 2021. Also included were several of the replies he received. These emails show that Mr. Lawrence has expressed repeated interest in developmental and training opportunities, including job shadowing, to improve his chances of career advancement. Illustrative is Mr. Lawrence’s email of May 29, 2020 to Deputy Superintendent Scean Charles in which Mr. Lawrence wrote “Please be aware that I am expressing my desire for consideration for the opportunity to participate in on-the-job learning, career development, leadership development for the Staff Sergeant rank”. More recently, he emailed Deputy Superintendent Anisa Capener to “formally request that I am taken into consideration for day to day Acting Staff Sergeant position”, elaborating on his qualifications and more than 22 years of service (email of April 14, 2021).
23Several examples of management replies were included in the package of emails. On June 2, 2020, Mr. Lawrence was advised by Mr. Charles that his request to job shadow a Deputy of Security and Compliance had been approved and he was asked to contact the individual to work out the logistics. He also received several emails from Ms. Capener indicating that management was aware of his request for training opportunities. Typical is a response that his request would “be considered on operational needs of the institution; if an opportunity presents itself while operational needs of the institution is met, I will be happy to facilitate” (email from Ms. Capener, March 1, 2021).
EMPLOYER REPLY
24The Employer reiterated its position that Mr. Lawrence had failed to identify a term or condition of employment that had allegedly been breached and repeated its submission that the complaint should be dismissed pursuant to Rule 11. The Employer emphasized that management has broad discretion under the Public Service Act of Ontario to organize and operate its workplace, including the type of tests it will administer in job competitions, and just because an employee disagrees with an operational or hiring decision does not give rise to a complaint that can be arbitrated.
25With respect to allegations of discrimination, the Employer accepted that it had a legal obligation under the Ontario Human Rights Code not to discriminate but argued that the information provided by Mr. Lawrence established no basis whatsoever for his allegation that he had been denied opportunities because of his race. It characterized his case as based on “subjective opinion that he was entitled to particular postings or assignments and …. [was] unfairly denied” (Employer brief, paragraph 12). The Employer elaborated as follows (Employer reply brief, paragraph 19):
The bar for a prima facie case of discrimination is not so low that the Complainant can merely plead that he feels he was treated unfairly and that he is racialized, and then the onus switches to the employer to provide an answer as to why he was not assigned a particular posting.
26With respect to the emails provided by the Complainant, the Employer pointed out that a number of them occurred well after or well before his complaint and therefore should not be considered. Even if considered, however, they did not establish a prima facie case for discrimination or the violation of a term of employment. If anything, they showed that Mr. Lawrence was afforded training and shadowing opportunities based on operational needs.
DECISION
27I start by recognizing that it is obvious from Mr. Lawrence’s submissions that he has demonstrated a commendable interest in career advancement and that he has been very frustrated by what he sees as a lack of progress. But his frustration cannot, in itself, be the basis for an arbitrable complaint. Having reviewed the submissions, it is my determination that Mr. Lawrence has failed to establish a prima facie case to support his allegations of discrimination and general unfairness in the hiring process and therefore the Board lacks the jurisdiction to address those concerns. However, specifically with regard to the hiring process for the Institutional Training Manager position, I have concluded that he has raised an arbitrable issue with respect to the recruitment and selection procedure over which the Board has jurisdiction.
28Turning first to the claim of discrimination, there is no evidence to support an allegation that Mr. Lawrence was denied the ITM job or any other position as a result of his race. It is not sufficient to base a discrimination claim on the fact that a non-racialized employee was chosen over a racialized employee for a particular job opportunity. While I accept that discrimination can often be subtle rather than overt, something more beyond the appointment of a non-racialized applicant is needed to provide an evidentiary foundation to support a claim of discrimination. Apart from Mr. Lawrence’s own opinion, no such evidence was provided.
29Furthermore, there is evidence that points in the opposite direction – i.e. that the Employer has not discriminated against racialized employees. Documents showed that Mr. Lawrence was offered the opportunity to job shadow, as he had requested (email from Charles to Lawrence, June 2, 2020), and also showed that in a staff sergeant competition for which he had applied and had been granted an interview, he voluntarily withdrew (email correspondence between Singh and Lawrence, May 2020). Finally, the Employer made an unrefuted submission that the ITM position had first been offered to two racialized candidates, both of whom declined, before it was offered to MM, a non-racialized employee. Taken together these facts contradict the allegation of discrimination advanced by Mr. Lawrence.
30Accordingly, I dismiss Mr. Lawrence’s claim that he has suffered discrimination in the hiring process. He has failed to establish a prima facie case in support of this allegation.
31I now turn the question of whether Mr. Lawrence’s complaint identifies a potential breach of a term or condition of employment over which the Board has jurisdiction. The Complainant advanced a number of allegations about the general unfairness of the hiring process in the past and seemed especially aggrieved about what he viewed as unfair and unnecessary testing procedures. I agree with the Employer that these allegations are vague and, in all likelihood, untimely. Furthermore, it is generally accepted that employers, absent some express limitation, have wide discretion to assess applicants for positions using various processes, including testing. I see nothing in Mr. Lawrence’s statements and documents that reach the level of establishing a prima facie basis for a violation of a term or condition of employment based on the Employer’s general approach to the hiring process or its use of testing as part of its selection practices.
32Accordingly, I dismiss that part of the complaint that addresses testing procedures and the following allegations raised by Mr. Lawrence in Form 1, his particulars, and his letter to Deputy Minister Richardson: 1) filling multiple positions within the Security department, which is considered as a speciality post; 2) the Executive Assistant to the Superintendent assumed the role of a Sergeant, where the individual had complete access to confidential information such as previous competition questions and candidates resumes, cover letters and applications; 3) directly assigning a sergeant within the Records department, where there is no such post or vacancy; 4) despite conducting the sergeant post picks, the senior administration team continues to deliberately reassign the sergeant positions i.e., individual who is assigned a post to a specific unit/floor is appointed into a speciality post and repositioning and creating in-house positions.
33I come to a different conclusion with respect to the acting Institutional Training Manager appointment. Mr. Lawrence alleges that the appointment process was tainted because the position was awarded without soliciting an expression of interest (EOI) or providing an internal job posting. For the purposes of this preliminary ruling only, I assume the facts as alleged by Mr. Lawrence to be true (see Ilika), i.e. no EOI and no internal posting. I recognize that Mr. Lawrence did not identify a specific rule or term of employment that would have allegedly been violated by the lack of a posting or EOI. However, the Employer’s own Employment Policy (version last revised April 1, 2017) contains multiple sections on recruitment and selection and the rules that govern selections. There are several sections on the circumstances under which procedures may be waived. It has been accepted by the PSGB in previous decisions that the words “condition or work or term of employment” should be read expansively (see, Maiwand, PSGB 2020-1746) an approach with which I concur. As well, employees cannot be expected to be experts on the nuances of employment policies and ought not to be penalized for being unable to identify a specific term in a multipage policy document.
34In its submissions, the Employer suggested that the ITM position needed to be filled on an “temporary and urgent basis”, justifying the process used to appoint MM. The justification offered may well be an adequate explanation for the process used and well within the discretion of the Employer, but it is exactly the type of assertion that must be based on evidence and be open to challenge. I am satisfied that Mr. Lawrence has raised an issue over which the Board has jurisdiction – i.e. an alleged deviation from normal selection processes as set out in the Employer’s own policies. Therefore, I reject the Employer’s preliminary objection to my jurisdiction to adjudicate the merits of the process for the selection an acting Institutional Training Manager announced on April 29, 2020.
AWARD
35I have reached the following conclusions:
Mr. Lawrence has failed to establish a prima facie case that he was discriminated against on the basis of race. His discrimination complaint is dismissed.
Mr. Lawrence has failed to establish a prima facie case that the Employer’s recruitment and selection process is generally flawed and this aspect of his complaint is dismissed.
Mr. Lawrence has failed to establish a prima facie basis for challenging testing procedures that may be used in the hiring process. This aspect of his complaint is dismissed.
Mr. Lawrence has raised an arbitrable issue with respect to the appointment on April 29, 2020 of MM as an acting Institutional Training Manager. The issue is whether, assuming that there was no Expression of Interest or internal posting, the lack of an EOI and/or internal posting breached the selection and recruitment procedures set out in the Employer’s own policies.
In light of this ruling, Board officials will contact the parties to arrange a hearing on the merits of the appointment of an acting Institutional Training Manager.
Dated at Toronto, Ontario this 23rd day of June, 2021.