Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2017 Cases and Trends No reprisal in firing of probationary employee Employee made harassment complaint, but employer was already questioning employee's ability to do job properly BY JEFFREY R. SMITH AN ONTARIO EMPLOYEE who made a workplace harassment complaint was not a victim of a reprisal and instead was fired because she wasn't doing her job well, the Ontario Labour Relations Board has ruled. Alicia Allen was the housing manager of Eamon Park Housing Co-Operative, a hous- ing corporation in Concord, Ont., that rents housing units to its members. Eamon Park is run by an elected board of directors and usu- ally has three employees — the administra- tive assistant, the maintenance co-ordinator, and the housing manager. Allen was hired to be the housing manager on July 25, 2016, with a three-month probationary period. A short time into Allen's stint, the admin- istrative assistant found she often had to re- peat herself when discussing things with Al- len and found she didn't seem to understand the accounting software used at Eamon Park. She also noticed Allen didn't interact with members of the co-op who came into the office — something she considered odd. At the end of August 2016, Allen was still having problems understanding the proce- dures and a deterioration of the work rela- tionship with the assistant began to show. About one month later, Allen decided to change the practice of when deposits were taken to the bank from Mondays to a dif- ferent day. e assistant said it could be a problem because members would expect the money to come out of their accounts on Mondays. e discussion became heated and led to Allen slamming a door. Allen complained to the staff liaison for the board of directors, who convened a meeting. According to the staff liaison, Al- len made fun of the administrative assistant and acted unprofessionally during the meet- ing, which prevented anything from getting accomplished. e assistant complained about Allen's interaction with members and inability to understand the accounting soft- ware, both at the meeting and in emails to the board of directors. Mistakes in financial records It was also discovered at the meeting that the financial report couldn't be approved because there were outstanding questions Allen couldn't answer, as well as issues with the monthly reconciliation of cheques. Over the course of six meetings from August to October, Allen continued to have difficulty answering financial questions. Allen complained to the board about the way she was treated by Eamon Park's exter- nal bookkeeper. ough she had little inter- action with him, Allen said he ignored and "barked" at her. e board of directors met on Oct. 19 to address Allen's complaints about the book- keeper. Allen provided a document outlin- ing her concerns about the bookkeeper and the administrative assistant, though she re- ferred to the assistant as "missy," which of- fended the assistant. e board decided the bookkeeper wouldn't be allowed back to the office and the accounting firm would have to send a dif- ferent bookkeeper. It also identified further issues with the financial reports, but Allen blamed these on the bookkeeper. One of the board members investigated and discovered Allen had missed a cheque and had created an input in the spreadsheet for bank errors. e board member felt Allen had tried to cover up her error and was creating an ad- ditional expense to balance the books. A re- view of earlier financial reports found more errors. Her concerns increased with each board meeting in which Allen couldn't an- swer financial questions. e board decided on Oct. 6 to extend Allen's probationary period so it could prop- erly evaluate her performance. e next day, Allen was informed of the decision to extend her probationary period. Allen objected, arguing her employment contract didn't allow for such an extension. One week later, Allen made a complaint to the Ontario Ministry of Labour that resulted in the ministry issuing orders to Eamon Park to conduct a workplace violence risk assess- ment, investigate Allen's incident with the bookkeeper, and develop workplace vio- lence and harassment policies. e board of directors scheduled a per- formance evaluation for Allen on Oct. 28, which largely featured questions about fi- nancial procedures. However, Allen refused to answer any questions until the staff liaison completed a questionnaire she had prepared — a questionnaire with a confrontational tone and questions such as: "Again, without prejudice to the use of the term probation period, are you aware that under labour law/ case law, abuse of this provision is frowned upon and is considered an act of dishon- esty so severe that the courts have punished employers by award of significant punitive damages against them with awards to even employees found to be still on probation?" e performance evaluation did not pro- ceed and the board of directors decided to terminate Allen's employment since she was unwilling to undergo the review, along with concerns over her ability to supervise staff and handle Eamon Park's finances. Allen filed a complaint alleging she was terminated as a reprisal for her workplace harassment complaint. e labour relations board agreed that Allen's complaint was an attempt to enforce her rights under the Ontario Occupational Health and Safety Act and she believed she was being harassed. However, it was clear that there were many concerns over Allen's job performance, said the board. e board found Allen had conflicts with both the administrative assistant and the bookkeeper, had difficulty understanding the accounting software, and made errors in the co-op's financial reports. While Al- len argued she hadn't been told about any concerns with her performance, the board disagreed, pointing to the board of directors' questioning at each meeting and the failure to pass at least one financial report. In addi- tion, Allen was told her probationary period was being extended, which a reasonable per- son should understand meant Eamon Park had concerns about her performance. e labour relations board also found that when Allen filed her complaint with the ministry, the board of directors already had reason to examine her performance more carefully. When Allen refused to participate in her performance evaluation without her own questionnaire being completed, it was an "act of defiance" that "tipped the balance in favour of ending the employment rela- tionship," the labour relations board said. e board determined Allen wasn't per- forming at the expected level and her refusal to participate in the evaluation was "the fi- nal act needed to convince the employer that the employment relationship was not tenable." ere was no evidence Allen's dis- missal was a reprisal in any way related to her complaint, the board said in dismissing her claim. See Allen v. Eamon Park Housing Co-Opera ve Inc., 2017 Carswell 16000 (Ont. Lab. Rel. Bd.).

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