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HomeMy WebLinkAbout2010-1815.Williams.15-01-14 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2010-1815 UNION#2010-0530-0108 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Williams) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Christopher Albertyn Vice-Chair FOR THE UNION David Wright Ryder Wright Blair & Holmes LLP Counsel Jim Paul Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Suneel Bahal Treasury Board Secretariat Legal Services Branch Counsel Cathy Phan Treasury Board Secretariat Legal Services Branch Counsel HEARING April 2, 2013, September 2 and November 5, 2014 - 2 - Decision [1] This is an arbitration under Article 22.16 of the parties’ collective agreement. Evidence was filed by willsay statements. [2] The Grievor, Simone Williams, is a correctional officer, formerly at the Toronto Jail, now at the Toronto South Detention Centre (TSDC). [3] The Grievor has also filed a complaint with the Human Rights Tribunal of Ontario on the issues raised in her grievance. This decision addresses all of the human rights issues raised by the Grievor in her HRTO complaint. [4] The Grievor describes herself as a multi-generation Black Canadian. She has been employed with the Ministry of Community Safety and Correctional Services (“the Ministry”) since May 19, 1987. [5] The Grievor claims she was the subject of discrimination and harassment on various occasions from July 2010 onwards at her workplace, the Toronto Jail until it closed and since then at the TSDC. She says that she complained of the incidents to management, but the Employer failed to investigate the incidents or to respond appropriately or at all to her situation, resulting in harm to her that warrants significant relief. The Grievor seeks substantial systemic remedies and individual relief, including damages of $100,000. [6] The Union maintains that the Employer has not taken the Grievor’s concerns seriously, - 3 - that in recent years, over the period of the incidents the Grievor describes, the Employer has retreated from its statutory and contractual duties to ensure a safe workplace, free from harassment and racial discrimination. The Union says the Employer’s inaction, its failure to ameliorate the hardship experienced by the Grievor, perpetuated a poisoned work environment for her. The Union submits that a failure to investigate properly is itself a violation of the Grievor’s human rights. [7] By way of background, it should be noted that the Grievor has acted bravely on issues of racism in the Toronto Jail. In July 2008, she came forward to speak publicly of her experiences of the poisoned work environment that prevailed then. She did so in a process established to enable different factions within the workplace to hear of the hardships that individuals had experienced as a result of the divisions within the workplace. The Grievor’s coming forward boosted the process of reconciliation at the Toronto Jail and helped the process of developing systemic remedies to improve the safety and mutual respect among employees that the Union and the Employer were eager to foster. Her historical role in improving workplace relationships should be acknowledged and remembered. [8] Coming forward as she did made the Grievor vulnerable to potential threats by anyone who espouses a race discriminatory ideology. She was named in two anonymous hate letters received at the Toronto Jail. This resulted in the Grievor having a lengthy period away from the workplace to recover from the effects of the threats contained in the two letters. She returned to the workplace in an accommodated position in December 2009. The Grievor is understandably sensitive to racist attitudes and behaviour and is rightly offended by them. - 4 - [9] The incidents described below must be seen in this context. [10] The Grievor claims that the impact of the various incidents has been to make her fearful of working nights and being out in the dark by herself, inhibiting her from working overtime to the extent she would like. The thought of being assaulted by “an unknown miscreant” is ever in the back of her mind. [11] I will describe each of the incidents the Grievor complains of, with the parties’ submissions for each, and my conclusions for each incident. [12] The parties also made submissions particularly on the issue of an employer’s obligation to investigate complaints, and they referred to various cases. The Union refers to the following: Ibrahim v. Hilton Toronto, [2013] OHRTD No. 664; United Parcel Service Canada Ltd. v. Teamsters, Local Union 938 (Levy Grievance), [2011] CLAD No. 303 (Goodfellow); Cyr v. Treasury Board (Department of Human Resources and Skills Development), [2011] CPSCLRB NO. 34; Ontario Public Service Employees Union (Tardiel) v. Ontario (Community Safety and Correctional Services), 2010 CanLII 81917 (ON GSB); and Ontario Public Service Employees Union (Ranger) v Ontario (Community Safety and Correctional Services), 2013 CanLII 50479 (ON GSB). The Ministry refers to: B.L. v. Marineland of Canada Inc., [2005] OHRTD No. 30; Colliard v Toronto (City), [2013] OHRTD No. 1592; Ontario Public Service Employees Union (Tardiel) v. Ontario (Community Safety and Correctional Services), GSB decision of April 14, 2009; Ontario Public Service Employees Union (Tardiel) v. Ontario (Community Safety and Correctional Services), GSB decision of July 15, 2009; Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services), 2010 CanLII 72679 (ON - 5 - GSB); Ontario Public Service Employees Union (Louis) v. Ontario (Transportation), 2014 CanLII 40177 (ON GSB); Koroll v. Automodular Corp., [2011] OHRTD No. 800; Ontario Public Service Employees Union (Hyland) v Ontario (Community Safety and Correctional Services), 2014 CanLII 8297 (ON GSB); Tulul v. King Travel Can Ltd., [2011] OHRTD No. 430; Ontario Public Service Employees Union (Groves) v Ontario (Community Safety and Correctional Services), 2014 CanLII 70079 (ON GSB); and Ontario Public Service Employees Union (Tardiel) v. Ontario (Community Safety and Correctional Services), 2010 CanLII 81913 (ON GSB). I have considered all of these cases in the context of their particular facts and the facts in this grievance. The Mr. Ball incident [13] On Tuesday, July 27, 2010 the Grievor was in the A&D (Admitting & Discharge) Operational Manager’s office warming up her coffee. A fellow correctional officer, Mr. Ball, entered the area. He glanced at the Grievor and said, “Montague”. Mr. Montague is a racialized male correctional officer, then a fellow employee of Mr. Ball and the Grievor at the Toronto Jail. The Grievor replied, “Pardon me?” Mr. Ball realized his error in wrongly identifying the Grievor, and said he had made a mistake. The Grievor took up the issue with him, and Mr. Ball said he had not recognized the Grievor without his glasses. The Grievor grew agitated by his explanation. Mr. Ball left, saying, “Whatever, have a nice day”. [14] The Grievor sees this incident as having racist undertones, what she describes as a “micro-assault”. She concluded from the fact that she had worked with Mr. Ball for several years that his error was not innocent, but that it was the result of a racist view, in her words, that “all blacks look alike”, devoid of gender or other physical attributes. - 6 - [15] The Grievor did not take immediate steps to address this incident of alleged racism. She wrote an occurrence report of it on August 16, 2010, some three weeks after it happened. The Operations Manager responded by email to her report on the same day, asking if the Grievor wished to pursue the matter. The Grievor replied that the occurrence report was for information purposes only and that she did not want to take her complaint any further. She declined the offer to complete a WDHP (Workplace Discrimination and Harassment Policy) complaint. The Operations Manager offered the Grievor EAP (Employee Assistance Program), which the Grievor declined. [16] Notwithstanding the Grievor’s decision not to pursue the matter, soon afterwards, the Superintendent informed the Grievor that, because the incident described in the Grievor’s occurrence report was race-based, an independent investigator was being appointed. [17] The independent investigator met with the Grievor and interviewed her. He also met with Mr. Ball. Mr. Ball explained that he had made a mistake and that he had apologized to the Grievor. He said he had no intention to be disrespectful towards her. [18] The investigator’s report was issued on October 23, 2010. It concludes that because “the common visible characteristic between” the Grievor and Mr. Montague “is that both are black. This makes race a factor in this matter and thus brings it within the scope of the WDHP.” The investigator recorded that Mr. Ball admitted the incident and apologized, then said, “While the respondent may not have intended to offend the complainant, intent is not a requirement to making a finding of a violation of the Human Rights Code or the WDHP”. The investigator then concluded that, “based on a balance of probabilities, the incident in this matter breached the - 7 - WDHP”. [19] What is perhaps most surprising about the investigation is that its conclusions were accepted as a valid outcome by the Employer. In my view, the conclusions drawn from investigator’s conjecture were speculative and unsupported by the facts of what occurred. Generalizations were made in the report on race relations in society generally, of patterns of racism, that were then applied as proven facts with respect to the individual incident. While, no doubt, mistaking one individual for another might be the consequence of an underlying racism, to conclude that to have been the case in the specific circumstances of the incident between the Grievor and Mr. Ball, recalled by both long after it occurred, in the absence of any suggestion of an intention to cause harm, embarrassment or humiliation, was highly speculative. Bearing in mind that uttering another person’s name is not in itself an insult, even if it were true that Mr. Ball had associated in his mind the last names of the Grievor and Mr. Montague because they are both racialized officers (and there was no conclusive evidence of this), and so some element of racism motivated his utterance, his immediate unreserved apology for his error did much to ameliorate his blameworthiness. [20] Despite the unsupported assumptions and conclusions in the report, the Employer accepted it as a valid determination of a violation under the WDHP. [21] In either event, whether the Employer accepted the investigator’s report as valid or not, it had an obligation, having initiated the report, to advise the Grievor of its outcome. It failed to do that. The Grievor made several approaches to the Ministry from October 2010 onwards, asking of the outcome of the investigation and of what the Ministry intended to do about the matter, but the Grievor did not get a definitive reply until she received a letter from the Deputy Minister of - 8 - the Ministry on February 2, 2012, nearly 15 months after the completion of the report. (Why the issue was escalated to such a level within the Ministry is not explained.) Nonetheless, the Deputy Minister explained that the investigator had substantiated the Grievor’s allegation of being subjected to discrimination on the basis of race and colour. The Deputy Minister concurred in that conclusion. He said he would ask Mr. Ball’s Superintendent to meet with him, so that “appropriate corrective action” could be taken. Also because “potential systemic issues” were raised concerning the Toronto Jail in the investigator’s report, the Deputy Minister said he would delegate the Superintendent of the Toronto Jail with the authority “to take appropriate action, in consultation with the Conflict Resolution and Human Rights Unit, to address these issues”. That was the extent of the Ministry’s response to the Grievor’s inquiries and to her original report. The Ministry says that Mr. Ball was subject to unspecified corrective action. [22] The Grievor was not told of the action taken against Mr. Ball, or of any action to address systemic issues at the Toronto Jail. She was never asked whether she needed any assistance or support or any remedy following the investigation report. [23] Although the Grievor does not claim to have asked to have Mr. Ball removed from her work area, she complains that she had to work for over a year near to him after she made her complaint against him. She and the Union submit this showed a lack of sensitivity to her feelings and her situation by the Employer. She felt she was obliged to work in a poisoned work environment during the lengthy period of continuing to work in his presence. She says she feels exhausted and disheartened by the Employer’s lack of response to her concerns. [24] Mr. Ball eventually moved to Maplehurst jail. Whether this was on account of the - 9 - incident is not clear. [25] The Union and the Grievor claim that the Ministry’s lack of response to the Grievor’s inquiries discourages employees from filing legitimate complaints, and undermines the process of dispute resolution, particularly in the important arena of workplace harassment and discrimination. The Employer’s inaction has the effect of weakening employee confidence in the established institutions of workplace justice. [26] The Union refers to the Employer’s WDHP policy. Its purpose is described as to “establish a framework for the prevention of workplace discrimination and harassment and effective response to” such issues. The Policy directs that responses by the Employer to discrimination and harassment “are provided in a timely manner”. Timeframes in the policy are the maximum time allowed for each step. For internal investigations the Employer should decide on appropriate remedies within 15 days of the completion of the investigation, and for external investigations, within 30 days. These time limits were hugely exceeded in this case, with management’s response occurring about 15 months after completion of the investigation. [27] This incident has the following features. The Grievor did not intend to pursue a complaint. She first did nothing about it for nearly three weeks. Then she wrote a report of it. Once she had completed her report she made clear she did not want the matter pursued as a complaint. Although the Employer did not need to escalate the matter, it took it further because the Grievor had mentioned she thought it had racist overtones. This appears to have revived the Grievor’s interest in the matter. The Grievor never asked that she not work near Mr. Ball pending the outcome of the report. A report was produced following the investigation; a flawed report in - 10 - my view, which I think the Employer ought to have rejected, but a report nonetheless. The Employer accepted the outcome of the investigation, but then entirely failed to deal properly with the Grievor. It left her in limbo for nearly 15 months as she was making repeated requests for a response. [28] The Employer ought to have dealt with what had become a complaint as expeditiously as possible, as it is required to do under the WDHP. It failed to meet its own standards by a large margin. The Grievor suffered frustration and inconvenience as a result. When a complaint has been upheld, and action is to be taken to implement a remedy, the Employer ought to have consulted with the Grievor to consider any particular relief she required. [29] To determine the appropriate remedy, I note that there was no failure to investigate by the Employer, unlike in the cases cited by the Union. The deficiency was the Employer’s failure to respond promptly or in a timely manner to the Grievor’s wish to obtain an outcome to her complaint. As a result of the long delay the Grievor suffered some injury to her dignity and to her feelings of self-respect. She explains a deteriorating interest and enthusiasm for her work as a result. There was, however, no additional public humiliation for her as a result of the delay, as there was in Ibrahim v. Hilton Toronto, above, at para. 186, where $5,000 was awarded for delay of two months in investigating a complaint. Here the delay, not of an investigation, but of advising of its outcome, was 15 months. Human rights damages are remedial in nature, not punitive: Koroll v. Automodular Corp., above, at para.122; Tulul v. King Travel Can Ltd., above, at para. 104: “the focus is on the experience” of the complainant, “and not on the party responsible for infringing his or her rights”. - 11 - [30] In all the circumstances, I find the Grievor is entitled to $3,500 in general damages on account of the Employer’s procedural faults in handling her issues regarding Mr. Ball. Safe departure Protocol [31] Pursuant to an earlier decision between these parties on April 14, 2009 to address the situation of individuals, like the Grievor, who had been named in hate mail received at the Toronto Jail, on November 9, 2010 the Grievor gave written notice to her supervisor of her intention to leave the workplace because she felt unsafe. She explained her feeling unsafe was the consequence of short staffing in her area of work, Video Court. [32] The Employer convened a meeting with the Grievor on November 26, 2010 to discuss her reasons for feeling unsafe. The Employer did not accept that short staffing was sufficient cause to invoke the safe departure Protocol of the April 14, 2009 decision. The Employer unilaterally determined that the Grievor could not continue to exercise her rights under the Protocol. On December 22, 2010, some six weeks after the commencement of the Grievor’s Protocol leave, the Employer required her to return to work, or else she faced the prospect of being treated as absent without leave. [33] The Union submits that this occurrence is part of a pattern of discrimination and harassment by the Employer and that, pursuant to the April 14, 2009 decision, her entitlement to leave work when she felt threatened was violated. The Union argues that the Employer cannot unilaterally determine when the Protocol applies; any dispute as to its application should be raised through counsel with the Board. - 12 - [34] The relevant portion of the Protocol reads: 5) I therefore direct the following with respect to any person who is entitled to leave work when they feel threatened under a Return to Work Protocol. In this circumstance, the employee will notify their manager that they are leaving the workplace. The notification will be in writing and, if an incident has triggered the threat, the employee will provide details of the incident so that the Employer may respond appropriately. The employee will also advise their manager when they anticipate they will return to work. If they are not able to give an accurate estimate they should indicate this, and the Employer will be entitled to assume, for the purposes of scheduling only, that they will be off indefinitely until they inform the Employer that they are able to return. [35] The Grievor complied with her obligations under this provision. Her email to the Superintendent of November 9, 2010 explains that she felt unsafe as a result of the Employer’s inability to staff the video court. She advised she would return to work when the required staffing level had been restored. [36] The Protocol is silent on how the safe departure leave ends. The parties intend that both the Employer and the employee exercise their rights reasonably and bona fide. This means that their expectation is that the employee will return to work and resume their regular duties as soon as possible, once the employee feels sufficiently safe to return to work. What is the procedure, though, if the Employer thinks that circumstances have changed sufficiently so that the employee can safely return to work? [37] The Protocol is a form of accommodation for employees who have experienced a particular severe emotional shock in the workplace. Some incident or event will have triggered the affected employee’s bona fide exercise of their right to leave work under the Protocol. To end the period of their leave, it must be reasonable to conclude that the employee can safely return to work. For this to happen sufficient time must have elapsed from the start of the leave to - 13 - expect the employee reasonably to have recovered from the stress that triggered their leave, or the factors that precipitated the leave must have been removed. In either of these circumstances, the employee can reasonably be required to return to normal duties. [38] In such circumstances the Employer should hold an accommodation meeting with the employee concerned and with the Union to determine the reasons for the employee’s continued absence. If the Employer is not persuaded by the employee’s requirement for additional leave, the Employer has remedies available to it, such as requiring medical proof of any continued need for the absence. The Employer may, if not persuaded of the need for the leave to continue, require the employee to return to work. If the Union and the employee concerned disagree with the Employer’s determination and are of the opinion that the employee needs additional leave, the Union and the employee have remedies to seek prompt relief from the Board, seized of any dispute concerning the implementation of the Protocol. [39] The Grievor’s complaint concerns the unilateral action by the Employer on December 22, 2010, rather than that her Protocol leave was unreasonably attenuated. In the circumstances of what occurred, I find the following defect in the Employer’s procedure. The Employer may disagree with the reason for the trigger that induced the individual employee to leave the workplace under the Protocol, but that is not a basis for refusing the leave, nor for ending it. The Employer may end the leave only if it considers the entitlement is being abused or it is reasonable to conclude that the employee can safely return to work, as described above. In that event, as mentioned, the Employer should first meet with the Union and the employee concerned to understand whether a further period of leave is needed, whether some other accommodation is appropriate, or whether there is reason to require the employee’s attendance back at work. - 14 - [40] Given that the procedure for ending a Protocol leave has not previously being adjudicated, I consider that the above clarification is sufficient to determine this issue under the grievance. No further relief is required. The swastika graffiti [41] The Grievor and a fellow officer went to the 5th floor of the Toronto Jail on March 8, 2011 for a private conversation. While there they noticed the faint depiction of a swastika on a wall. This put the Grievor in mind of an experience she had at the jail many years earlier when “KKK” graffiti had been scrawled on a wall. She was troubled by the memory of that experience. The Grievor and the fellow officer both reported the matter. No response has been received by the Grievor concerning her report. [42] The Employer arranged for the graffiti to be photographed before it was painted over. It was painted over, the Grievor claims, within 20 minutes of her report, and before any police investigation. All staff working on the floor were required to submit occurrence reports. Some considerable time later, 18 months, on September 21, 2012 the Employer and the Union issued to Toronto Jail staff a joint memorandum condemning graffiti, among other unsuitable conduct. The Union correctly points out this joint message to staff was not a response to the graffiti on March 8, 2011. The Union criticizes management for failing to confer with the Grievor to check that seeing and identifying the graffiti did not have an adverse emotional impact on her, in the context of the hate mail continuing to be directed against the racialized officers in the institution. [43] The Employer responded promptly once the graffiti was brought to its attention, in March - 15 - 2011, as described. The Employer took the further step of affixing a camera in the area where the Grievor identified the graffiti. As it had done previously, the Employer ought to have informed staff that graffiti, particularly hate graffiti, has no place in the institution. [44] There is nothing to suggest the graffiti was directed at the Grievor personally. The Employer had no particular liability towards her as a result of her discovering the graffiti. Consequently, I am not persuaded that the Employer needed to explore with the Grievor the impact she felt from being the one to identify the graffiti. Had she needed any support or assistance she could have raised it with the Employer. [45] I therefore find no violation of the Employer’s obligations under the WDHP or the Human Rights Code with respect to this incident. The Mr. Adams incident [46] On April 29, 2011 the Grievor was leaving the institution when her shift ended. Mr. Adams, a correctional officer, was responsible for the entrance and egress to the institution. With him was another officer. They were booking in inmate visits and professional visitors. As the Grievor reached the inner door of the exit, she was forced to wait what she felt was an inordinate amount of time for someone to open the door. The Grievor thinks Mr. Adams delayed her deliberately. He denies that. The Employer says the Grievor was delayed approximately a minute by Mr. Adams attending to a professional visitor. In frustration at the delay, the Grievor asked Mr. Adams if he was unable to multi-task. Mr. Adams alleges the Grievor then said to Mr. Adams that he was wasting her time. He says he said to the Grievor that these things happened, and buzzed her through. As the Grievor was walking out the Grievor said to the person leaving - 16 - behind her, “This man has made racist remarks in the past”. Mr. Adams recalls her saying, “it wouldn’t be so bad if it weren't for the racial comments”. The Grievor claims Mr. Adams responded angrily, asking the Grievor if she was accusing him of racism, and referring to “racial bullshit”. She replied she was not talking to him. [47] The Grievor was later told by another employee that Mr. Adams had complained of this incident. As a consequence she filed an occurrence report. [48] The Employer did not investigate the exchange between Mr. Adams and the Grievor. [49] The Grievor complains that the Employer did not investigate the incident between her and Mr. Adams. She regards the delay in Mr. Adams releasing her from the institution as being a deliberate, racist act, and she submits the Employer ought to have investigated it. She treats the Employer’s failure to investigate the matter as a further incident of discrimination or harassment. [50] It is possible that had the Grievor’s version of events been investigated promptly, she may have been vindicated; an early investigation might have shown that the delay was not in the normal course of the officer’s duties, but was directed deliberately at the Grievor. We cannot know because the issue was not investigated. The question is whether it ought to have been investigated. [51] I find the Employer was obliged to investigate the matter. A report of an incident had been made. The Grievor mentioned racist overtones, despite her initiating the discussion of racism. The Employer should have investigated whether there was any deliberate delay of the - 17 - Grievor’s egress from the institution, and whether she or Mr. Adams, or both, had acted inappropriately. I therefore uphold the grievance with respect to this incident. [52] I find that this declaration is sufficient relief for this incident. This is because: the Grievor filed no WDHP complaint which would have ensured an investigation; her occurrence report was a defensive act, to respond to a potential complaint from Mr. Adams; and there is no suggestion that the Grievor suffered any personal harm or disadvantage as a result of the incident. Vandalism of an employee locker [53] The Grievor mentions that an employee, Mr. Linkert’s, locker was vandalized. She does so to show the context in which the incidents that directly affected her occurred. On January 4, 2013, someone unknown opened Mr. Linkert’s locker and emptied the contents of numerous cans of dog food into the bottom of the locker. The Employer claims the locker was not locked; the Grievor says Mr. Linkert advised her it had been locked. The Employer investigated the incident by taking photographs and requesting occurrence reports from those who had found the locker vandalized. The Employer was not able to determine who was responsible for the act of vandalism. [54] The Grievor raises the incident because it compounded her sense of insecurity in the institution, and what she regards as the Employer’s lack of concern for employee safety, including her own. [55] This incident had no direct impact on the Grievor. - 18 - [56] The Employer did not violate the WDHP or the Human Rights Code with respect to this incident. As the Employer argues, it responded appropriately by taking photographs and requiring the officers affected to file occurrence reports. Despite these reports, the Employer was unable to determine who was behind the incident. The locker area does not have video surveillance, in recognition of the employees’ privacy. There was therefore no video record of who was at the locker. The Employer’s response was reasonable in the circumstances, save that it might have issued a memorandum to staff reiterating that such conduct is unacceptable. Verbal exchange with Security Manager [57] When the Toronto Jail closed, the Grievor’s work was relocated to the Toronto South Detention Centre (TSDC). On February 27, 2014 the Grievor had a verbal exchange with the Security Manager, Mr. Richard. She was delivering meal carts and Mr. Richard, who thought the Grievor was struggling with the carts, inquired why inmates were not delivering them, as was the usual procedure. The Grievor replied that “the system” had failed, referring to the fact that the locked slider doors were not operating properly and the officers thought it was not safe to have inmates moving through the institution in these circumstances. According to Mr. Richard, he replied that the system had been repaired and was now working well. Mr. Richard says the Grievor then replied, “What if it fails again?” Mr. Richard replied, sarcastically, “What if you win the lottery and don’t have to work anymore?” [58] The Grievor felt that Mr. Richard used a flippant, racist tone, suggesting she was lazy and stupid. She saw his comments as a subtle form of racism. The Grievor sent an email describing the exchange, entitled “poisoned work environment”. The Grievor concluded the email with a request that she have no further contact with Mr. Richard, failing which, she would pursue the - 19 - matter. [59] The Deputy Superintendent of the TSDC, David Hanafin, asked a WDHP Advisor, Bo Jiang, to review the Grievor’s email to advise whether the incident amounted to a breach of the WDHP. [60] Mr. Jiang considered the Grievor’s email and advised the Employer that the incident did not amount to harassment. Mr. Jiang spoke to the Grievor. Although the Grievor said she thought the incident had racist undertones, she confirmed the email was for information purposes only and she did not intend to file a WDHP complaint. [61] The Union submits that the Employer should have met with the Grievor to ascertain her experience of the incident with Mr. Richard, and to understand why she regarded it as an expression of racism by Mr. Richard. The Union submits the failure to interview her is an example of the Employer’s lack of concern for the Grievor. [62] The words used by Mr. Richard do not have any racial overtones. He responded to the Grievor flippantly, but that, in itself, does not suggest that he intended to demean her. In the circumstances, Mr. Jiang’s assessment that the WDHP was not engaged was reasonable. After reaching this conclusion he spoke with the Grievor. He asked her whether she intended to pursue a WDHP complaint and she made clear that she did not want to do so. So, at the time Mr. Jiang spoke to the Grievor, there had been no overt racism in the interaction between the Grievor and Mr. Richard, and the Grievor indicated she did not want to pursue a WDHP complaint. In those circumstances, the Employer had no further obligation to investigate the matter. - 20 - [63] I therefore find there was no violation of the collective agreement, the WDHP or of the Human Rights Code by the Employer with respect to this incident. Interaction with Sergeant Copeland [64] The Grievor claims that on March 3, 2014 Sergeant Copeland gave instructions to her (and a fellow officer) belligerently, with raised voice and gestures, so demeaning her in front of her peers. Sergeant Copeland, who says he has hearing loss and tinnitus, admits he likely spoke loudly because of the surrounding noise and conversations. Sergeant Copeland understood he had assigned the Grievor and the other officer to wait in the general duty office, while they had waited in the lounge. He required them to submit reports why they had not reported to the general duty office. The Grievor concluded from the exchange with Sergeant Copeland that he used a racist tone when he attacked her. [65] The Grievor wrote an occurrence report, as did Sergeant Copeland. Sergeant Copeland explains why he reprimanded the Grievor and why he required her and her fellow officer to write an explanation for their repeated failure to follow his instructions. The Grievor had been on training from 07h00 to 15h00. She, and the others with her, had failed to report to Sergeant Copeland who was the General Duty Manager that day. He paged her and the others who had attended the training and, when they responded, directed them to the General Duties Office. He needed them to fill programs that required additional officers. They needed to be in uniform. When the Grievor and a fellow officer entered the General Duties Office, Sergeant Copeland inquired if they had their uniforms with them. The Grievor did not respond to the inquiry but instead asked Sergeant Copeland why he was calling her at 17h30. He responded that her training had ended at 15h00 and he asked why she had not reported to the General Duty Office. - 21 - The Grievor replied that he had not looked for them, so she and her fellow officer had been in the lounge and waited for him to call them. He directed them to get their uniforms, get changed and report back to his office. The Grievor asked why he was asking her to get changed at 17h30 when her shift ended at 19h00. He responded that she had to get changed, report back to him and that the Grievor and her fellow officer were both required to submit occurrence reports as to why they had not reported to the General Duty Office at the completion of their training. The Grievor again began to question Sergeant Copeland’s direction. He responded, pointing to the door, “get out, get dressed and report back to me”. The Grievor again started to question Sergeant Copeland. He cut her off and “in a clearer tone” instructed her and her colleague to “get out, get dressed, and report back to me, now”. The Grievor and her fellow officer left Sergeant Copeland’s office. When the Grievor and her fellow officer returned in uniform, Sergeant Copeland directed them to write their occurrence reports. [66] The Employer took no action after these reports. The Union submits this too shows a lack of concern for the Grievor by the Employer. The Union suggests the Grievor was singled out for admonishing because she is a black woman. In her occurrence report the Grievor stated that she felt Sergeant Copeland’s behaviour contravened the Human Rights Code and the WDHP. [67] What is plain from the occurrence reports is that the Grievor wrote her report because she had been instructed to do so by Sergeant Copeland. His report is a response to hers, written an hour later. She filed no separate WDHP complaint. [68] The content of what Sergeant Copeland said to the Grievor was not, in itself, offensive and must be understood in the context of Sergeant Copeland’s frustration at the Grievor’s failure - 22 - to carry out the instructions he gave her. Also there is nothing in the content of the exchange between Sergeant Copeland and the Grievor, even as described by her, which amounts to a violation of the Human Rights Code or of the WDHP. Sergeant Copeland used a raised voice and gestured to the Grievor to leave his office to go and get changed. No doubt it would have been better had he spoken more moderately to the Grievor, but the exchange does not suggest that Sergeant Copeland’s conduct rose to the level of a violation of the WDHP. Having received the Grievor’s and Sergeant Copeland’s versions of what occurred, there was nothing further the Employer ought to have done with the incident. [69] In the circumstances, I find the Employer’s decision to take no further steps either against the Grievor or to investigate Sergeant Copeland’s conduct was not a violation of the collective agreement, the WDHP or the Human Rights Code. This is consistent also with the Grievor not having filed a WDHP complaint. Investigation into the hate letters [70] The Grievor claims that the continuing failure by the Ministry and by the Toronto Police Service to apprehend the anonymous hate letter writer has created an environment of fear and insecurity for her in her workplace. As a racialized officer who has twice been named in the letters, she feels vulnerable to the threats of harm that are contained in the letters. [71] The investigation of the hate mail is a matter under consideration separately between the Union and the Employer. Decisions have been issued regarding the investigation. The Grievor raises the issue as context within which to understand her reaction to the incidents that are described above that directly affected her. Racialized officers continue to be under threat of harm - 23 - from the hate letters while the police investigation remains unresolved. The Grievor is concerned by what appears to her as a lack of concern by the Employer for her welfare and that of other racialized officers. She points out that the Employer has not made any effort to inquire of her state of mind or security after receipt of the hate mail received on November 17, 2010, July 18, 2011, January 6, 2012 and September 18, 2013. [72] In my view, the general handling of the hate mail, the hate mail Protocol and issues surrounding the continued receipt of the hate letters are matters that are properly addressed by the Union and the Employer. The Employer’s compliance with the existing Protocol does not give cause for individual remedies by individuals, such as the Grievor, who are earlier recipients of the letters. I recognize that the Union and the Grievor have mentioned the hate mail to give context to her concerns, but this context does not give grounds for a separate cause of individual relief. Summary [73] For the reasons given, I have reached the following conclusions. [74] With respect to the Mr. Ball incident, I declare that the Employer breached the WDHP when it failed to advise the Grievor in a timely manner of the outcome of the investigation. For this the Grievor is entitled to general damages of $3,500. [75] With respect to the safe departure Protocol of April 14, 2009, I declare the Employer breached the Protocol when it required the Grievor to return to work without a prior accommodation meeting with her and the Union to determine the circumstances of her continued - 24 - Protocol leave. [76] With respect to the swastika graffiti incident, I find no violation by the Employer of its collective agreement or statutory obligations. [77] With respect to the Mr. Adams incident, I find the Employer violated its collective agreement obligations. [78] With respect to the vandalism of an employee’s locker, I find no violation by the Employer of its collective agreement or statutory obligations. [79] With respect to the Grievor’s verbal exchange with the Security Manager, I find no violation by the Employer of its collective agreement or statutory obligations. [80] With respect to the interaction with Sergeant Copeland, I find no violation by the Employer of its collective agreement or statutory obligations. [81] With respect to the hate mail, I find no violation by the Employer of its collective agreement or statutory obligations. [82] I remain seized of the implementation of this decision. Dated at Toronto, Ontario this 14th day of January 2015. Christopher Albertyn, Vice-Chair