An arbitrator has dismissed a grievance filed by a former City of Toronto employee who was terminated for absenteeism in July 2019 after she started working a second job and began missing shifts. The arbitrator also rejected her claims of racial and sexual harassment.
A.H., a part-time heavy-duty cleaner, alleged that her dismissal was unjust and that she had been discriminated against during her employment.
In a decision rendered by arbitrator Kim Bernhardt, the City’s termination of A.H.’s employment was upheld on the grounds that she had been absent from her scheduled shifts without authorization. The arbitrator concluded that A.H., who was simultaneously working at another job, failed to provide sufficient reasons for her absences and missed multiple shifts due to a conflict with her new full-time position at Toronto Western Hospital (TWH).
Background
A.H. began working for the City in 2016, primarily assigned to the St. Lawrence Market as a part-time cleaner. She also worked as a casual housekeeper at TWH. In December 2018, she was offered a part-time role at the hospital, which necessitated changes to her City schedule. The City accommodated her initial requests for modified hours, but as her responsibilities at TWH increased, scheduling conflicts arose.
The City argued that A.H. had missed several shifts in July 2019 without approval and had failed to call in her absences. According to evidence presented by the City, she did not show up for eight scheduled shifts after July 9, 2019, citing her new full-time position at TWH as the reason for her unavailability. In her termination letter, dated July 19, 2019, the City informed her that her conduct was “incompatible with [her] continued employment” and terminated her employment for unauthorized absences.
Scheduling conflicts
A.H. argued that she had provided a satisfactory reason for her absences, attributing the scheduling conflict with her hospital job. However, arbitrator Bernhardt ruled that A.H.’s failure to report for her scheduled shifts violated the terms of her employment.
“The failure to report to work for eight days without a satisfactory reason warranted discipline,” Bernhardt stated in the ruling. “Not showing up for your scheduled shift in order to work elsewhere is not a valid enough reason.”
Harassment and discrimination complaint
A.H. also filed a complaint with the Human Rights Tribunal of Ontario (HRTO) in 2020, alleging that she had been harassed and discriminated against based on her race and sex during her time working for the City.
A.H., who self-identified as an “African-American, black, Caribbean, Jamaican lady,” claimed that her supervisor had treated her harshly, followed her into the women’s washroom, and knocked on the door while she was inside. She further alleged that she was treated differently from her colleagues and given fewer shifts because of her race.
The City denied these allegations, and the arbitrator found insufficient evidence to support the claims. The arbitrator noted that while A.H. had described incidents of inappropriate behaviour, including the supervisor entering the women’s washroom, the details provided were vague and lacked corroboration. Furthermore, A.H. had not raised these allegations with the City in a timely manner.
“There is no evidence to link the Grievor’s view of being mistreated due to her characteristics,” Bernhardt wrote. “The evidence did not show that the Grievor was short-changed on her shifts nor was the lack of other Black employees working with the Grievor a discriminatory act in and of itself.”
Inconsistencies in testimony
The arbitrator also noted inconsistencies in A.H.’s testimony, particularly regarding her absences. A.H. claimed she had been calling the wrong number to report her absences in July 2019 but later admitted during cross-examination that she had abstained from work to avoid encountering the supervisor. This inconsistency, among others, undermined the credibility of her claims, the arbitrator found.
“The Grievor’s claim that she had tried to call in the absence line but was calling the wrong number is not credible,” the decision stated, adding that A.H. had successfully reported absences due to illness in the past.
Despite her claims of harassment and discrimination, the arbitrator ruled that A.H. had not demonstrated a prima facie case of discrimination under the Ontario Human Rights Code. Bernhardt noted that while some incidents described by A.H. might have been considered rude or uncivil, they did not rise to the level of harassment or discrimination based on race or gender.
A.H.’s grievance and her human rights claims were both dismissed. In addition to rejecting her allegations of harassment, the arbitrator upheld the City’s decision to terminate her employment, concluding that A.H.’s actions, particularly her absences without approval, justified the City’s disciplinary measures.
For more information, see Toronto (City) v Canadian Union of Public Employees, Local Union No. 79, 2024 CanLII 81426 (ON LA).
