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Higginson 16-08-09
IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 245 (the "Union") M Ufflom SHERIDAN INSTITUTE OF TECHNOLOGY AND ADVANCED LEARNING (the "Employer") AND IN THE MATTER OF THE GRIEVANCES OF JUDY HIGGINSON OPSEU #2012-0245-0001 & #2014-0245-0001 (SUPPORT) SOLE ARBITRATOR APPEARANCES For the Union For the Employer Robert D. Howe Richard Blair, Counsel Jay Jackson. Judy Higginson Dan Michaluk, Counsel Lori Elliott. Ryan Piper Davina Chan Jeffrey Patterson A hearing in the above matter was held in Oakville, Ontario, on April 22 and August 22, 2014; January 15, February 12, 13, 26, and 27, March 26 and 27, July 14 and 15, August 25, September 8, and November 16, 2015; and January 7 and 8, and February 8, 2016. A W A R D This award pertains to two grievances of Judy Higginson (the "Grievor"). The first grievance, which was filed on June 4, 2012, alleges that the Employer (also referred to in this award as the "College") unjustly disciplined her by imposing a three-day suspension without pay. The second grievance was filed on February 4, 2014, and alleges that the College terminated her employment without just cause. During the seventeen days devoted to the hearing of this matter, eight persons were called as witnesses. In addition to their testimony, 69 exhibits were entered as evidence during the course of the proceedings. In making the findings and reaching the conclusions set forth is this award, I have duly considered all of that oral and documentary evidence, the submissions of counsel, and the usual factors germane to assessing evidentiary credibility and reliability, including the firmness and clarity of the witnesses' respective memories, their ability to resist the influence of self-interest when giving their version of events, the internal and external consistency of their evidence, and their demeanour while testifying. I have also assessed what is most probable in the circumstances of the case, and considered the inferences which may reasonably be drawn from the totality of the evidence. The College's Co-operative Education Department 11 (the "co-op department") is responsible for forty-two co-operative education programs. Staff in that department prepare students for employment by providing courses and working with students on an individual basis. They also develop relationships with employers to obtain employment opportunities for co-op students. The length of co-op employment varies from program to program. In order to participate in the co-op program, students must be eligible to work in Canada, as they are generally paid wages for the work performed during their co-op employment. International students need to obtain a co-op student permit in order to be eligible for such employment. Tax paying companies can derive a monetary advantage from employing co-op students enrolled in a formal co-op education program in which a co-op work term is mandatory for graduation, as there is a provincial co-op tax credit of up to three thousand dollars per work term for each such student employed. The College's co-op staff work with employers to determine the program which best fits their needs. In the period prior to the Grievor's discharge, a total of twenty-three support staff employees worked in the co-op department in various full-time and part-time positions, including employer -student liaisons, co-op student advisors, job developers, and "hybrid" co-op student advisors/job developers, who performed both of those roles. After taking courses at York University and Humber College, the Grievor worked in sales and marketing for over a 2 decade before being hired by the College in 1993 in a contract position as a co-op job developer for a number of engineering programs. She subsequently secured a hybrid position and became a full-time employee of the College with a 1996 seniority date. The following summary of the role of that position is contained in its Position Description Form (1'PDF") : Position Title: Co-operative Education Advisor (Hybrid) The position reports directly to the Director, Career Education. The incumbent's role is twofold. The first is to promote, develop, coordinate and implement the co-op/internship programs for specified academic programs. In this role, the incumbent is responsible for conducting labour market research and identifying target markets through which to promote student capabilities that effectively attract new employers to provide meaningful work term experiences. In addition, the incumbent is responsible for implementing and managing strategies which ensure academic learning is transferred to the workplace, and vice versa, through on-site visits and support to both student and employer regarding performance and learning issues. The second is to facilitate the success of co-op, using teaching methodologies, to develop and deliver career planning and job search courses and assistance to students, both individually and in groups, as they prepare to enter the workforce. The incumbent works as part of the Co-Op/Internship team to support and advise Program Coordinators of pre/post work term experience. The College has four campuses: the Davis campus in Brampton, the Hazel McCallion campus in Mississauga, the Trafalgar campus in Oakville, and the Skills Training Centre, which is also located in Oakville. Co-op student advisors, job developers, and hybrids work out of offices at the Davis campus, the Hazel McCallion campus, and the Trafalgar campus. The Grievor worked out of the co-op office at the 3 Davis campus and was responsible for a number of co-op programs in the College's Faculty of Applied Science and Technology. In 2009, a new position was created and given responsibility for some of those programs (mechanical engineering design and drafting, quality assurance, manufacturing management, and business process management), leaving the Grievor with responsibility for the remainder of the engineering related programs in the "mechanical cluster" (including the mechanical engineering technician and electrical engineering technician programs). The new position was filled by Cory Latimer. The Grievor and Mr. Latimer worked collaboratively and developed a good working relationship. The Grievor and Mr. Latimer "shared some employers" because some of the co-op jobs offered by employers were cross -posted, making students in more than one program eligible to apply for them. The Grievor's relationship with some of her other co-workers was less satisfactory. Her failure to deal with them in a respectful manner was an ongoing problem that was drawn to her attention by various members of management a number of times over the years. For example, in November of 2009, Brenda Jessop, who was at that time the Manager of Co-operative Education Services, sent the Grievor a memo which read, in part, as follows: Subject: Non -Disciplinary Statement of Expectations This memo is a follow-up to our meeting on October 28, 09, at which we discussed how you can contribute to a respectful, professional and efficient workplace. M Sheridan is committed to providing a working and learning environment that is supportive of academic achievement and the dignity, self-esteem and fair treatment of everyone taking part in its activities. The College seeks to create a climate of mutual respect that reinforces opportunity and allows for each person to contribute fully to the development and well-being of the community. Professional communication between employees is vital to creating this climate where business is being conducted in close proximity with staff and students. As a valued long-term employee of Cooperative Education you have a unique influence over the Davis climate and can make a large contribution towards making it a supportive and positive workplace. You have the required knowledge to assist other employees and students in developing their skills. It is very important that your efforts to guide, advise and problem solve are respectful, positive and constructive. This includes including [sic] cooperative and positive interaction, such as modulating the tone and volume level of your conversations. The Grievor and Mr. Latimer also received an email in March of 2011, from Derrick Fairman, who was their manager at that time, drawing their attention to the portion of the College's Telephone and Computer Information Access Policy which indicated, among other things, that email accounts were not to be used to "harass, threaten or annoy others", to send abusive or harassing messages, or to send unwanted emails to another after being requested not to do so. In her emailed response, she wrote: Thanks ... but I don't see how Cory and I are in breach of policy/code. Unless of course Sheridan deems any emailed questions relating to work policies/procedures as "annoying" or "unwanted". If so, we all regularly receive "annoying", "unwanted" emails. Please clarify if/how I, or Cory, violated item 6 on page 3. W That response generated the following emailed reply from Mr. Fairman: You are absolutely not in violation of this policy in any way shape or form. I have merely sent you this policy to prove that such a thing exists. Neither you nor Cory are in violation of this and you have this in writing. However, I want you to understand how this can be used against you after several "annoying" emails. Do you understand where I'm coming from on this? Again, let me be clear, you have the right to ask questions as it pertains to the execution of your duties, you just have to be careful/mindful of how you do it. Much of the alleged misconduct for which the Grievor was suspended and ultimately terminated pertains to Kuljinder Lall, who was the seventh and final witness called by the College in these proceedings. During the spring of 2011, Mr. Lall was filling a position in the co-op department on a contract basis during a staff member's maternity leave. In May of 2011, the Grievor was given a one -day suspension for aggressive behaviour on April 7, 2011, towards Mr. Lall; for speaking loudly and unprofessionally to Mr. Lall in an open area of the workplace; and for allegedly speaking in an insubordinate manner to Lori Elliott, who was the first witness called to testify by the College in the instant case. Ms. Elliott was the College's Career Education Director from August of 2010 until May of 2014, when she became an Associate Dean in the College's School of Business. Mr. Latimer was present throughout the incident that gave rise to the Grievor's one -day suspension. Although he was not disciplined for the incident, he was subsequently 6 transferred to another campus to fill a hybrid position which had become vacant due to a retirement. The decision to make that transfer was made by Mr. Fairman, in consultation with Ms. Elliott, to whom Mr. Fairman reported. Although Mr.. Latimer was initially opposed to the transfer, when Ms. Elliott ultimately offered to transfer him back to his former position prior to the Grievor's termination, he declined her offer. Mr. Lail was the successful applicant for the vacancy created by Mr. Latimer's transfer, and became a full-time employee of the College in November of 2013 as a result of obtaining that position. Although he had previous experience as a co-op job developer, he had not previously worked as a co-op student advisor. Consequently, Jenny Peach, who had been a co-op student advisor since January of 2010, was assigned to train and mentor him. Ms. Peach was the third witness called by the Employer in these proceedings The Grievor was extremely dissatisfied with Mr.. Latimer being replaced by Mr. Lail, and made a number of requests to Mr. Fairman and Ms. Elliott to have Mr. Latimer returned to that position. In December of 2011, she sent the following email to Mr. Fairman, who at that time was the Manager of the College's Co-operative Education Program: This is to remind you of my previously expressed concerns about having to work closely with Kuljinder Lail. For obvious reasons, Kuljinder and I do not have the same working relationship as that of Cory Latimer/myself. 7 I remain hurt and upset that Kuljinder misrepresented what did - and did not - transpire on April 7, 2011. On that day Cory and I worked diligently to facilitate the placement of Kuljinder's student(s). our efforts were rewarded with an undeserved: a) one day suspension to me b) transfer of Cory Latimer to another campus. /Further to my previous verbal request of Friday, November 11, 2011:/ I remain very uncomfortable and threatened by Kuljinder's transfer to my program cluster. People who work closely together must be able to communicate openly and honestly about day-to-day business matters. They should demonstrate integrity and trust ... they should "have each other's backs".. To -date, the only consideration Kuljinder has shown for my back is to stick a knife in it. The above aside ... In 2009, Management returned Cory Latimer to work with the Mechanical program cluster because Cory possessed the requisite Mechanical curriculum knowledge and related employer network experience critical to the successfully [sic] placement of our students in today's mechanical/manufacturing job market. The person I cover for, and who covers for me, should possess similar procedural skill sets and program/employer acumen. He or she should execute database transactions and enter notes in a similar method to me and our (eventual) Co-op Assistant. Thus far, Kuljinder has not shown any inclination or desire to do this. When I voiced my request that you reconsider moving Kuljinder into my Mechanical program cluster, you said you would give my concerns serious consideration, and get back to me. In the interim, you assured me that I would not have to 1.1 work closely with Kuljinder, and that I would not be responsible for his training. I understood you to say that Kuljinder would work only with his students, and I only with mine. If you have: a) declined my request to have Kuljinder work in a different program cluster b) decided that Kuljinder and I must now work together as a "team" ... then I request that Lynn Rutherford mediate a session between Kuljinder and myself. Sheridan would want Kuljinder to be fair and truthful when dealing with me, and maintain integrity in his work. Would you be able to have Lynn set up a meeting with Kuljinder and me, or should I contact her directly? In his response to that email, Mr. Fairman wrote as follows: I must advise you that your comments in your December 13th email are inappropriate. As I expressed before, your portfolio, although related, is completely different from Kuljinder's portfolio. However, while there is no requirement for you to work closely together with Kuljinder, it is my expectation that you will carry yourself in a professional manner and as I explicitly made clear to you at our last Co-op meeting on December 9th, 2011, you will treat your colleagues, students and management with respect. While you are entitled to your opinion about events that transpired on April 7, 2011, management has made a determination as to the most probable version of events and acted accordingly. The proper channel to dispute the employer's finding and what led to them is the grievance process of which you are aware. I am confused by your statement, "I remain very uncomfortable and threatened by Kuljinder's transfer to my program cluster". Kuljinder was not transferred into your program cluster rather he applied for and was the successful candidate for a vacancy. Furthermore, you have not made management aware of any threatening behaviour by Kuljinder. Kuljinder's participation in the College's investigation of the events on April 7, 2011 is not threatening in any way. Moreover, I E expect there will be no retaliation for Kuljinder's participation in the College's investigation. I am especially alarmed at your statement, "To -date, the only consideration Kuljinder has shown for my back is to stick a knife in it." This is an inappropriate and violent characterization of Kuljinder's behaviour. I expect you will refrain from incorrectly characterizing Kuljinder's behaviour like this going forward. Moreover, I expect that you will monitor the language you use in the workplace and avoid using violent rhetoric. I have reviewed the function of the Office of Equity and Human Rights Services (OEHRS) including speaking with Lynn Rutherford and it is not an appropriate resource for this situation. The OEHRS can provide alternate dispute resolution assistance in certain circumstances. However, it is not intended to intervene where one employee is displeased with the perceived involvement of another employee in a grievance matter. As stated above, the method for you to dispute the facts of the case is the grievance process. If there are operational matters which need to be resolved, I would be happy to sit down with you and Kuljinder as mentioned in my previous email. As far as Kuljinder's ability to handle the Mechanical program cluster and his system of executing database transactions, Kuljinder went through a formal hiring process and brings a strong background to the program.. Additionally, I approve of Kuljinder's method of using the jobs.sheridan database as it is consistent with the system used by many of the other advisors/job developers within the Co-op Department. I will not be moving Kuljinder from his current portfolio and it is my expectation that you will professionally address any students that may come in to see Kuljinder as you would with any other advisor or job developer. If you need to take a message for Kuljinder from a student that drops in to see him when he is not in, then do so. If you want to give a student. Kuljinder's business card when he is not in, you may also do so. But I expect that as with any other colleague, you will call or email Kuljinder and let him know. If you need clarity about anything I have said in this letter please see me. In support of her contention that Mr. Lall either needed to be transferred or given additional training, the Grievor also sent or copied emails to Ms. Elliott regarding 10 what she alleged to be errors made by Mr. Lall, and regarding his failure to respond to some of the emails that she sent to him. Ms. Higginson's one -day suspension was grieved and referred to arbitration. In her majority award dated March 13, 2014 (in Re Sheridan College and OPSHU, Local 245 (Higginson), 2012 CarswellOnt 4498), Arbitrator Cummings wrote, in part, as follows in dismissing that grievance: 5. We conclude that the employer was justified in disciplining Ms. Higginson. Ms. Higginson received a non -disciplinary letter of expectation on November 6, 2009. Among other comments, Ms. Higginson was advised that "Professional communication between employees is vital to creating this climate where business is being conducted in close proximity with staff and students". Ms. Higginson was counselled to guide, advise and problem solve with colleagues in a way that was "respectful, positive and constructive" which includes "...modulating the tone and volume level of your conversations". We are satisfied that Sheridan had told the grievor that she was expected to speak respectfully to colleagues and needed to change her tone and volume. Because that expectation was communicated so clearly, we see no reason to reduce the one day suspension which was given, less than two years later, for the same sort of conduct Ms. Higginson had been counselled about. 23. The conduct that Ms. Higginson engaged in is worthy of discipline for two reasons. She spoke to Mr. Lall in a loud and insistent manner and overall treated him without respect. She criticized him for not coming to the employer interview, blamed him for "phony job" postings, led him to the copier and scanned the document, as if he would not know how to do it. She continued to berate him for not agreeing with her view about "phony jobs" posting for some time and in a very loud voice. Ms. Higginson began to talk to Mr. Lall in private, but then continued in the more public space of the supply room where students and other staff would overhear. She spoke so loudly and with such agitation, that two managers were attracted to the room. This conduct towards Mr_ Lall occurred over a number of minutes and both upset and embarrassed him. 11 Moreover, it was the very sort of behaviour that Ms. Higginson had been counselled not to repeat in the letter of expectation. 24. While we conclude that Ms. Higginson was not insubordinate to Ms. Elliott, Ms. Higginson's behaviour in the supply room was inconsistent with the model that Ms. Higginson and her colleagues should be demonstrating to students. Ms. Higginson works in the career center. As Ms. Elliott testified, staff in the Career Centre should not be leaving the impression that it is acceptable to yell at your work colleagues. In our view, the setting and fair expectation that Ms. Higginson model appropriate employment behaviour were aggravating factors. Having concluded that Ms. Higginson engaged in misconduct, we see no basis to reduce the employer imposed discipline of a one day suspension. During her testimony in these proceedings, the Grievor said, "I really don't think I was guilty of what they said [in that award]". She also indicated that she still remains "hurt and upset" because she continues to be of the view that Mr. Lall misrepresented what occurred on April 7, 2011. She further indicated that she thinks that Mr. Lall, who was a contract employee, "did what he had to do to get a full-time job". The three-day suspension which the aforementioned first grievance seeks to have rescinded was imposed by the following letter dated May 28, 2012, from Ms. Elliott to the Grievor: This letter is a summary of our recent meetings in which we discussed your behaviour in the workplace. Also in attendance at these meetings were Jay Jackson, OPSEU Local 245 and Ryan Piper, Human Resources Business Partner. On March 30, 2012 you acknowledge having a brief conversation with Kuljinder Lall in a portable where the department was located at the time. when questioned on April 27, 2012 you stated that your recollection of the conversation is that you were 12 talking to another employee when he approached you. You state that you don't recall what was said but that his presence distracted you from the conversation you were having. Mr. Lall states that he approached you and said hello to which you responded by saying, "OK, get out." On April 2, 2012 the department moved from the portable into the B building at the Davis Campus. When questioned on April 27th, you stated that you did not receive the workstation that you believed was originally assigned to you. In fact, [Mr.] Lall was assigned to it. You acknowledge asking Mr. Lall whether he had asked me to move his workspace to the location you believed had been assigned to you thus resulting in you being moved elsewhere. You state that Mr. Lall denied having asked me to reassign workspaces and that you believed him. However, you also acknowledge that upon hearing that Mr. Lall had concerns regarding the amount of light/heat coming through the window adjacent to his new workstation, you stated, "maybe it's karma". In addition to what you acknowledge to have said on April 2, 2012, Mr. Lall says that he heard you tell several employees that he had stolen your office. He further states that this behaviour continued into the following day until another employee corroborated his assertion that he did not approach me to have the workstations reassigned. Your conduct on March 30th and April 2nd constitutes bullying in the form of belittling behaviour and the spreading of malicious rumours which resulted in a harmful work environment. Furthermore, you acknowledge communicating with Mr. Lall on April 16, 2012 regarding a disagreement with a posting of a cooperative education employment opportunity and the resulting student applications and interview scheduling. You further acknowledge speaking to Mr. Lall in his workstation while you remained in your workstation. Therefore, there was a baffle in-between you. When Mr. Lall did not respond to your first attempts to engage him, you state you began speaking louder rather than go to his workstation because you were referencing something on your computer monitor. You acknowledge that you should not have spoken loudly over the baffle however you deny that anything else in your communication was inappropriate. Nonetheless, your voice had an emotional tone and reached a volume level which disturbed those around you. Moreover, your behaviour was another example of bullying in the form of berating a co-worker. As you know, the College issued a one day suspension on May 2, 2011 for your treatment of employees 13 including Mr. Lall. Furthermore, you received an email on December 21, 2011 from Derek Fairman, your manager at the time, in which you were reminded to carry yourself in a professional manner, especially in regards to your behaviour towards Mr. Lall. Regrettably, the College's action have not resulted in an improvement in your conduct. On May 8, 2012 the College advised you that it is prepared to issue you a three-day unpaid disciplinary suspension for your behavior. As an alternative to a three-day suspension, the College proposed to issue only a one -day unpaid disciplinary suspension if you were to also agree to participate in the Workplace Referral Program administered by Shepell/FGI, the College's Employee Assistance Plan provider. Unfortunately, you have declined to participate in the Workplace Referral Program. Therefore, the College has no choice [but] to issue a three-day unpaid disciplinary suspension. You will serve the suspension May 29-31, 2012 inclusive. You are to report for your shift on June 1, 2012, as normal. It is hoped that this action will impress upon you the seriousness of your ongoing behaviour. Any future misconduct may result in discipline up to and including termination. Please contact me at extension 5655 if you have any questions. The Grievor understood that the College wanted her to get counselling, and she was amenable to receiving it because she thought that it would assist her in dealing with stress. Since she mistakenly thought that she was the one who had to make the counselling arrangements, she made a number of calls to the College's Employee Assistance Program provider with a view to making arrangements for counselling with a person who had been recommended to her by one of the College's in-house student counsellors. Through receiving a chain of email correspondence between Mr. Jackson and the College's Human Resources Department, the Grievor became aware that the College had not agreed that the counselling arrangements she 14 was attempting to make would satisfy the conditions that it had specified. However, prior to receiving the above -quoted three-day suspension letter, she thought that matter was still up for discussion. Since her primary motivation for seeking counselling was not to have the three-day suspension reduced to a one -day suspension but rather to obtain assistance in dealing with her stress, after receiving the three-day suspension she proceeded to obtain counselling from a counsellor close to her residence, rather than further seeking to obtain a reduced suspension by availing herself of the specific counselling program in which the College wanted her to participate. The advice that she received from her counsellor included putting things in writing and getting as many witnesses as possible. There is no evidence that she received any advice from her counsellor about how to deal with her colleagues respectfully, or how to control her emotions when communicating with them. when co-op staff became aware that they would be moving from the portables in which they had been temporarily working on the Davis campus into the Davis Welcome Centre (the "Centre"), some of them approached Ms. Elliott and asked to be moved as far away as possible from the Grievor. One of the persons who made that request was Lorena Crowdis, who was the fourth witness called by the Employer in these proceedings. Ms. Crowdis commenced full-time employment with the College in 1986 and has been one of its co-op student advisors since the mid 1990's. She made that request because she had been 15 located close to the Griever's cubicle in the office space that was occupied by the co-op staff prior to moving into the portables to allow renovations to be made. During that time she heard conversations between the Griever and students that made her uncomfortable, because the Grievor was raising her voice and saying things such as "Have I taught you nothing?" and "Listen to me, you're not listening!" Conversations which she heard between the Griever and other staff members also caused her discomfort. Since Ms. Elliott knew that everyone would have an opinion about where they should be situated in the Centre, and also knew that she would be unable to accommodate all of their requests, she elected not to consult with staff about where they would be placed in the Centre. When she was approached by staff members making such requests, she advised them that this was not a discussion that she would have with them. The co-op department's new location in the Davis Welcome Centre included a number of cubicles (also referred to in the evidence and in this award as "offices"), as well as a workroom that served as a combined photocopier room and kitchen. Although the lay -out included a few private offices, it consisted primarily of offices separated by six-foot baffles rather than walls. Ms. Elliott left it to the project manager, David Sooley, to do the initial assignment of offices. It was intended that this initial assignment would remain confidential. However, after staff were given numbered labels on Wednesday March 28, 2012, to affix to the boxes that 76 were to be packed in preparation for the move, some of the staff, including co-op student advisor Renee St -Denis and student -employer liaison Sylvia Lee, saw the proposed seating plan and were able to determine where people were going to be located. Mr. Lall, who worked in a different portable than the Grievor, was given label "B-4311. On the basis of that seating plan, Ms. St. Denis advised him that he was getting a corner office without a window. Ms. Lee advised the Grievor that she was getting "a window seat", which was a reference to a corner office which had a window. However, the Grievor expressed the view that this would never happen and that Ms. Elliott would switch her to another office. When the Mr. Lall came over to the portable in which the Grievor was working, he jokingly asked her if she would trade him the office with the window if it was given to her, to which the Grievor replied by that she would never get the office with the window, and that when Ms. Elliott saw the floor plan she would not keep her there but would instead "give it to one of her favourites like Jenny [Peach]". When Mr. Lall continued to joke with her about it, the Grievor adopted a more serious tone and told him that if she did get the window seat, she did not want to switch with him. After doing a walk-through of the new office space, Ms. Elliott made some changes to the initial assignment. Staff members who had raised concerns about working in close proximity to the Grievor were placed as far away from her as possible. Offices closer to the Griever's were assigned to 17 people who were on and off campus in the course of their work. After working at the Mississauga campus on Thursday March 29 and on Friday morning March 30th, Mr. Lall returned to the Davis campus just before noon and found that his labels had been changed to "B-41", which meant that he would now be getting the office with the window that had previously been assigned to the Grievor. When Ms. Elliott arrived in that portable a few minutes later, he asked her about the change and was told that the label had been changed because some of the employees were moved. He then went to the other portable and said hello to the Grievor, who was talking to Ms. Lee. It was his evidence that when he received no response, he said hello again, at which point the Grievor looked at him and said, "What do you want?" He replied "I'm just saying hello", to which she retorted "Okay, get out". As indicated in Ms. Elliott's above -quoted letter dated May 28, 2012 and confirmed by Ms. Elliott's testimony in these proceedings, on April 27, 2012 the Grievor stated that she did not recall what was said when Mr. Tall interrupted her conversation with Ms. Lee. However, during examination -in - chief on July 14, 2015, she purported to recall that Mr. Lall said "I just wanted to let you know that I didn't request a change of seats". She testified that she believed him, and that she told him that. It was also her evidence that Mr. Lail then said "I thought you'd think I asked but I didn't", to which she replied "I believe you". She further testified that Mr. Tall then stood there laughing, at which point she or.] said, "Okay please go now. We're in the middle of a conversation". During cross --examination on September 8, 2015, the Grievor acknowledged that she was unable to recall her exact words, but testified: "I don't think I said [get out]. I think I said would you please leave because we're in the middle of something." However, the Grievor acknowledged that she was stressed at the time because she had number of things to discuss with Ms. Lee, who was a contract employee that had already submitted her resignation and was soon to be leaving the College. She also acknowledged that Mr. Lall's interruption was "a little frustrating". When she was asked if she spoke to Mr. Lall out of frustration, she replied. "A little bit - not huge". Having regard to all of the circumstances, I am satisfied that Mr. Lall's recollection of what the Grievor said is more .reliable than that of the Grievor, whose testimony appears to be more a reflection of what it would have been in her best interests to have said than a genuine recollection of what she actually said. During the course of her testimony about incidents involving Mr. Lail, the Grievor also tended to display a rather selective memory, with vivid recollections of what she perceived to be errors or other shortcomings of Mr. Lall, but less or no recollection of events or utterances which might tend to cast her in an unfavourable light. Her testimony about what occurred on March 30th is inconsistent not only with what Mr. Lall testified, but also with her inability to recall what was said 19 when she was asked about it on April 27, 2012, during the investigation that led to her three-month suspension. It is also inconsistent with what occurred during the following week, as described below. I also accept Mr. Lall's evidence that the way in which Ms. Higginson spoke to him that day in the presence of Ms. Lee was very embarrassing to him. It was Mr. Lall's evidence that when he arrived at his new office on the following Monday, the Grievor was not on the premises. When he saw her in the hall later that morning, he said hello to her but she just walked past him and did not respond. He then went to her new office, which was located next to his office and separated from it by a baffle. While he was standing in the hall beside her office, the Grievor asked him, "Why did you go to Lori and ask her to give you the office with the window that I was supposed to get?" Although he told her that he had not done so, it was his evidence that she stated that she did not believe him and reiterated that he had taken the office that she was supposed to get. When other staff members came to see Mr. Lall's new office, she also told them that it was supposed to be hers and that he had taken it. This happened three or four times that day. When he was asked (during examination in chief) how he felt about this, he gave the following response; "T was very upset because I was being accused of something I had not done. It was very upsetting." The Grievor suggested that any reference she made to Mr. Lail having gotten the office that was initially supposed to be hers reflected her belief that it was Ms. Elliott, and 20 not Mr. Lall, who was responsible for her not getting it. In cross-examination, she acknowledged that she found it "mildly irritating" that Mr. Lall got that office, but added that she did not expect to get that office and "got over it the second it happened". Although the Grievor conceded that she "may have said it was [hers] at one time", she also testified that she had "a precise recollection that [she] did not blame him for getting [it] " . Having regard to all of the circumstances, including the disdain that the Grievor felt for Mr. Lall as a result of his having in her view misrepresented what had occurred during the incident for which she had received the aforementioned one -day suspension, I accept Mr. Lall's testimony about the "window office" incidents, as well as his testimony regarding most other matters on which their evidence differed, because I found him to be a more reliable witness than the Grievor. Since there was no blind on the window, Mr. Lall's new office became excessively hot when the sun was shining in. The Grievor offered to bring Mr. Lall some drapes to cover the window. However, when Mr. Sooley checked the office later that day and confirmed that it was too hot, the Grievor said, "Maybe it's karma", or "It's karma". That comment upset the Grievor because he is a practising Sikh for whom karma has religious significance. He testified that the concept of karma is in the Sikh bible, that "if you do a good deed that's a good karma", and that "if someone says to you 'it's karma' they're saying to you that you are getting punished for what 21 you did". Although he took that comment as a religious slur, he did not tell anyone that this was how he viewed it. In explaining why he took that approach, he gave the following evidence (during cross-examination): "I'm not the kind of person who wants to get people into trouble and to file a complaint, so I just took it in." The Grievor acknowledged that when she heard Mr. Lall was complaining about the excessive heat in his office, she said, "Maybe it's karma" or "It's karma". She testified that she was laughing when she said it and that what was going through her head at the time was "be careful what you ask for". However, she testified that she did not know what Mr. Lall's religion was, that the reason she used that expression was that it was something she had heard used, and that to her it was just an expression which had no religious significance. While I accept her testimony that she did not intend that comment to be a religious slur, her use of that term provides a further indication that she was of the view that Mr. Lall had stolen the office that was supposed to be hers. I also accept Mr. Lall's evidence that on the following day, cc -operative education advisor Fran Burke came to see his new office and commented that it was a nice office with a window. This prompted the Grievor to reiterate that he had taken the office that she was supposed to have by going to Ms. Elliott and requesting it. When Ms. Burke said "I don't think so", the Grievor asked her what she meant. Ms. Burke then stated that she had heard through the grapevine that some 22 staff members were moved to different offices and that Ms. Elliott did not want to put the Grievor in the office with the window because it offered no privacy and had too much noise as there was a gap between the walls and the window. After hearing that, the Grievor stopped making comments accusing Mr. Lall of having taken the office away from her. The April 16, 2012 incident referred to in the three-day suspension letter arose in the context of a co-op job posted by the Grievor for one of the engineering related programs for which she was responsible. Since one of the students in Mr. Lall's business process management program had engineering skills, Mr. Lall manually added him to that posting, after discussing the situation with the Grievor. He did not cross -post the job because only one of the students in that program had the necessary qualifications. The interview for that job was scheduled to take place at 5:00 p.m. on Monday April 16. However, the student sent Mr. Lall an email on Sunday April 15th advising that he would be unable to attend the interview because he was writing a final exam and also had an interview scheduled with another employer that day. After reading that email on Monday morning, Mr. Lall sent an email to Marlene O'Brien, the student -employer liaison for business co-op programs, asking her to reschedule the interview. Mr. Lall then had to leave his office for about an hour while blinds were being installed in it. When Mr. Lall returned, the Grievor was working on the computer terminal in her office preparing a resume packet 23 to email to an employer regarding a co-op job that had been posted for one of the engineering programs for which she was responsible. She had originally intended to email that packet to the employer during the previous week, but while assembling it she had noticed that the first name and the surname on the resume submitted by one of Mr. Lall's international students appeared to be inverted. She had then sent Mr. Lall an email about it, requesting clarification and correction. In his emailed response, Mr. Lall had provided the requested clarification. The Griever then sent him an email thanking him for the information and advising him that he should tell the student to change his name and signature on his resumes and cover letters. However, while reassembling the resume packet on April 16th, she noticed to her frustration that the inverted names on that student's resume had not yet been corrected. When she called out to him over the baffle about this, Mr. Lall indicated that the resume had been changed, to which she replied, "No, it still has the error". She then said that she could not wait any longer and that she would fix it herself. She proceeded to do so and then emailed the packet to the employer. When the Griever went into the database to make a note about what she had done, she noticed that a resume packet had already been sent to the employer by Ms. O'Brien. This surprised her because Ms. O'Brien would not normally be involved with an engineering job posting. She was also surprised and upset that Mr. Lall had not mentioned it while 24 they were talking about the name inversion still being in place on the resume. She testified that her predominant emotion at that point was that she was frustrated because they were not communicating and were not working well together. She was concerned about how it would look to the employer to be receiving two packets of resumes for the same job, with the first packet presumably including the resume with the inverted names of one of the applicants. She was also frustrated about having spent time needlessly duplicating Ms. O'Brien's effort. Nevertheless, she testified that she was not angry, and that this was a civil conversation that was just held over the baffle because she was in a rush. She also testified that she was "just doing [her] job and someone else's that day", and that although she was "maybe too loud" and "shouldn't have talked over the baffle", she was "just talking to him about the file and some of the data entries". However, I find Mr. Lall's description of what occurred to be more credible and more consonant with what is most probable in the circumstances of this case. His evidence is also more consistent with the testimony of other witnesses, including Bonnie Cole and Cathryn Glover (as indicated below). Accordingly, I find that as stated by Mr. Lall in his testimony regarding that incident, the Griever yelled at him over the baffle, loudly asking "Why is Marlene touching my jobs?". Although Mr. Lall attempted to explain the situation, the Grievor continued to vent her anger and frustration by loudly reiterating that she did not want Marlene to touch any of her jobs, that Mr. Lall 25 could have posted a job of his own, and that she did not want him to touch her jobs. In explaining why he did not leave his desk and go to her cubicle, Mr. Lall testified: "Obviously she was angry. I didn't want to create any situation so I stayed away from her." He also attempted to defuse the situation by ceasing to talk to her, but the Griever continued to shout at him until finally going quiet several minutes after the incident commenced. The Grievor testified that she raised her voice because she thought that Mr. Lall had not heard her. While that may explain a further escalation of her volume level after Mr. Lall stopped responding to her, it does not justify her initially speaking loudly to him over the barrier instead of going to his office to speak privately with him, nor does it provide any justification for the manner in which she angrily berated him. Mr. Lall was very upset and embarrassed by that incident which was heard by other staff members. He felt that if the Grievor had a question or issue, she should have come into his office to speak with him rather than remaining seated in her office and shouting at him over the baffle. When Mr. Lall spoke to Ms. O'Brien after that incident, she told him that she had not rescheduled the interview. During subsequent discussions with the student about other issues, Mr. Lall learned that the student was no longer interested in having that interview rescheduled. Mr. Lall's "home office" was his cubicle in the 26 Centre at the Davis campus. However, the duties of his position, including some of his teaching responsibilities, also required him to work at the Hazel McCallion campus in Mississauga. Prior to the April 16th incident, Mr. Lail had generally only been working there one day a week, but after that incident he asked Ms. Elliott if he could work there two -days a week. Although the Davis campus was a more convenient location for him, as it was only ten-minute commute from his home in Brampton while the Mississauga campus was a fifty -minute commute, Mr. Lall nevertheless made that request because of concerns he had about working in close proximity to the Grievor. Those concerns included her propensity to speak loudly and to use inappropriate language, such as loudly referring to students as being "dumb" and "stupid". When Mr. Lail was speaking with employers on the phone, he found it to be embarrassing and unprofessional to have that kind of noise in the background. He also testified that the events of April 16th were part of the considerations that prompted him to make that request, because "it was really tough to work in that environment" After Ms. Elliott agreed that he could work two days a week at the Mississauga campus instead of just one, Mr. Lail began to make most of his telephone calls to employers from that location, rather than from his Davis campus cubicle, at which he generally used email as his method of communication. When he met with students at the Centre, he generally booked one of the two rooms that were available for that purpose, 27 rather than meeting with them in his cubicle, because he was not comfortable using his cubicle to meet with students due to the aforementioned inappropriate language used by the Grievor, and due to his concern that she would not be a good role model for the students. Those rooms also offered greater privacy for discussions with students because they had floor to ceiling walls, rather than just baffles. In commenting on the difference between working at the Mississauga campus and the Davis campus, the Grievor stated, "It's a long commute, especially in the evening stuck in the traffic, but at least I was able to get my job done." Since Mr. Lail still had programs with students based at the Davis campus after he began working two days a week at the Mississauga campus, he provided them with information regarding how to contact him, including his email address and information regarding the three days of the week that he would be at the Davis Campus. His extension number on the College telephone system also followed him from campus to campus, so students would be able to reach him if they called him. Mr. Lall testified that the Grievor never told him that the time he was spending at the Hazel McCallion Campus was causing her problems. It was also his evidence that he lent assistance to her students on many occasions, providing as an example an email that he sent to her in November of 2012, advising her that he had spoken to three of her students to ask them to check an email that had been sent to them by an employer, and to complete the request contained in that email. He further testified that lending assistance to the Grievor's students was part of his job, and that it did not cause him any distress. After the April 16th incident, Mr. Lall continued to say hello to the Grievor every day that he encountered her, but stopped doing so a couple of weeks later because he was receiving no response from her to any of his greetings. What he did continue to receive from her were emails critical of the manner in which he was doing his job, some examples of which were introduced into evidence in these proceedings. It is unnecessary to detail those emails in this award. It suffices to note that Mr. Lall provided a credible rationale for doing a number of the things that formed the basis of her criticism. Many of them simply reflected the different approaches that they took to performing various aspects of their jobs. Although the Grievor responded to some of the Grievor's emails, he chose not to respond to others because it had been his experience that providing such responses would simply lead to additional critical emails from the Grievor. In testifying about why he adopted that approach, he stated (during cross-examination) "If you email Judy at all, she comes back with a huge list of other things and there's no end to it". Another approach which he adopted was described as follows in his testimony (in chief): The emails I received from her were mostly criticising something and they would be quite lengthy. When I responded, 1'd say this is the last email from my side because otherwise she'd go on and on, so I'd say this is the last response and wouldn't respond further after that_ 29 Mr. Lail also testified that he sometimes provided information to the Grievor by giving that information to employer -student liaison Ruth McClelland, because he knew that she had frequent conversations with the Grievor. The Grievor also communicated to Ms. Elliott criticisms about the manner in which Mr. Lail was performing his work. For example, in an email dated April 19, 2012 regarding "Mechanical Cluster Team Concerns", after setting out her version of the April 15th incident, and complaining about spending an hour of her time dealing with one of Mr. Lall's design and drafting students, the Grievor wrote: I wouldn't bother you with the above two isolated incidents, except that they are a backdrop to a bigger problem. I previously made you and Derrick aware of my extreme concern when you transferred Cory Latimer to Oakville, away from the Mechanical cluster. Not just because Cory and I worked well together, but because it takes years of experience, training, and a special approach to successfully place Mechanical cluster Engineering Co-ops. This is true at other schools - not just Sheridan. It was the reason Cory was reassigned to the Mechanical cluster, after an extensive work needs analysis a few years ago. One of the primary, most important responsibilities of a Hybrid Co-op Advisor is to place students. Kuljinder has been working with the Mechanical cluster programs for 5 months now. Over the past two work terms, Kuljinder's postings have generated only two work term placements for his students ... if you include the Design & Drafting student I helped this afternoon. This is why I'm writing you. I previously reminded you that we've been working our program cluster without a Co-op Assistant for the better part of a year. I can't continue to shoulder the workload I have been, especially when my teammate seems so reluctant to act as a team. I appreciate we all have our different approaches to 30 work, but while Kuljinder's might have been successful for his Business programs, it is not effective for Engineering. For the sake of our students and employers ... and my diminishing health ... I would ask again that you transfer Kuljinder back to the programs he was originally more successful with, and return Cory Latimer to the Mechanical cluster, where his expertise is sorely needed and missed. Thank you for your time and consideration. Although Ms. Elliott received repeated requests from the Grievor to transfer Mr. Latimer back into his former position, she declined to do so because she did not share the Grievor's negative assessment of Mr. Lall's skills, and because was of the view that the Grievor could work independently from Mr. Lall. She testified that the Grievor's concern about the way in which Mr. Lall made entries in the database was "a minor administrative issue". when asked about the Grievor's productivity, she testified that the Grievor typically had under 110 students to manage, which was a considerably lower number of students than anyone else had to manage. After Mr. Lall brought the office assignment incidents and the April 16, 2012 incident to Ms. Elliott's attention, those incidents were investigated by Ms. Elliott and Mr. Piper prior to the imposition of the three-day suspension. One of the employees with whom they spoke about the April 16th incident was Bonnie Cole, who was the fifth witness called by the Employer. Ms. Cole commenced full-time employment with the College in 1988 and has been an employer - student liaison since 1996. Her cubicle is located across the 31 hall from the Grievor's cubicle. Ms. Elliott called her into a meeting with Mr. Piper in the Human Resources office on April 19, 2012. When they asked her about the April 16th incident, she told them that the Grievor and Mr. Lall were in a discussion and that although she is normally able to block noise out, on that day it was excessive and she was not able to concentrate. She also testified that she did not do anything about it because when it reached the point at which she was about to go the Grievor and "tell her to keep it down", the Grievor had quietened down. However, she did speak to Mr. Lall to ask him if he was okay. Moreover, at the end of the day, she told the Grievor that she had been going to come to her because she was quite loud. The Grievor then apologised to Ms. Cole and told her, "You should have. Next time come to me and tell me." Ms. Cole also conveyed that information to Ms. Elliott and Mr. Piper when she met with them. Ms. Elliott and Mr. Piper also met with Cathryn Glover during the course of their investigation of the April 16, 2012 incident. Ms. Glover was the sixth witness called by the Employer in these proceedings. At the time of that incident, she was a co-op student advisor who worked at the Centre one or two days a week. She subsequently became a hybrid co-op student advisor/job developer before retiring in November of 2013. On April 16, 2012, Ms. Glover was working in a cubicle adjacent to the Grievor's cubicle. That adjacent cubicle (which was subsequently assigned to Ms. McClelland) 32 was assigned to Sylvia Lee at that time, but Ms. Lee was not present when the incident occurred. Ms. Glover was working in Ms. Lee's cubicle because the "hotelling area" that she normally used when she was at the Centre was being used by someone else who was also entitled to use it. While working in that adjacent cubicle, Ms. Glover heard the Grievor speaking extremely loudly and angrily about a cross -posting. In describing her reaction to what she heard, Ms. Glover gave the following testimony: Q. What was running through your mind? A. I remember clearly that I was trying to imagine who she could be speaking to. Is it an employer, a student, or a colleague, none of which would be appropriate. I just couldn't even imagine talking that way. I was extremely happy that I did not have a student or an employer or someone else sitting with me. Q. How did you feel? A. Horrified! Q. Why? A. Because we're civilised and we don't hear things like that in a workplace. Q. Lori Elliott contacted you to provide information about this. How did you feel about that? A. I felt relief because I hadn't said anything and I just felt that something should be said but I hadn't said anything. Q. Why not? A. Because Judy is very quick with her words and I didn't feel like being attacked. The Grievor was called to meet with Ms. Elliott and Mr. Piper on April 27, 2012, to discuss the incidents referred to in the above -quoted three-day suspension letter 33 dated May 28, 2012. During that discussion, she made no apologies for her conduct and took no accountability for it. This left Ms. Elliott feeling quite frustrated. She indicated that it had gotten to the point that when Mr. Lail or others would come to her with concerns about the Grievor, her "stomach would knot up", because there was such a sense of futility that despite giving the Grievor repeated feedback that her conduct was inappropriate and hurtful to her colleagues, it would always come up again. She also testified that she was frustrated that the Grievor was not taking accountability, could not moderate her conduct for very long, and had declined the College's offer of counselling. Ms. Elliott was also very troubled by the Grievor's ongoing disparagement of Mr. Lall. In this regard, Ms. Elliott testified that even in the meeting held to investigate the incidents that led to her three-day suspension, the Grievor suggested that she would be better if she had a better co-worker. One of the things mentioned to the Grievor in that meeting was that Ms. Elliott and Mr. Piper had spoken with Ms. Cole. After the meeting, she told Ms. Cole, "I'll never trust you again". When Ms. Cole asked her why, the Grievor accused her of being the one who had made the complaint to management. Ms. Cole told her that she did not make the complaint and also said: "Why would I do that after I'd gone to you personally to tell you how I felt the day when it took place?" She also stated that when the Grievor had previously asked her if she 34 had spoken to management about the noise, she told her that she had not done so because when she was summoned to meet with Ms. Elliott and Mr. Piper to tell them what had occurred, they told her not to talk to Ms. Higginson about it. Their conversation ended with the Grievor walking away and Ms. Cole feeling upset, because she felt that she had had a good relationship with the Grievor and it disturbed her that the Grievor thought that she would do that to her. In her testimony, the Grievor adamantly denied having ever thought that Ms. Cole was the one who made that complaint. When she was asked if she had said to Ms. Cole, "I'll never trust you again", she responded "not that exactly", but also stated "I can see why she might think that". She went on to say that although she was not upset that Ms. Cole had spoken to management about the incident, she was upset that Ms. Cole had lied to her about it, because she had worked with Ms. Cole for seventeen years and they had always been very straight with each other. when it was suggested to her in cross-examination that she had placed Ms. Cole in an awkward position by asking her if she had spoken to management about the noise given that Ms. Cole had been told by management not to discuss the matter with anyone, the Grievor disagreed, asserting that all Ms. Cole had to say was that it was not possible for her to talk about it, and further asserting that Ms. Cole did not have to tell her a lie. It was also her evidence that this is what she had told Ms. Cole when she encountered her in the hall. 35 Since I am of the view that Ms. Cole's testimony about that encounter is more consonant with what is most probable in the circumstances of this case than the testimony given by the Grievor, and since I am satisfied that Ms. Cole's evidence about it is more reliable than that given by the Grievor, I accept Ms. Cole's testimony as a more accurate description of what actually occurred. Since Ms. Cole was upset that her name had come up in that meeting, she raised that matter with Ms. Elliott, who told her that Mr. Piper had mentioned her name. Ms. Elliott apologised for that having occurred and told Ms. Cole, "I don't know why Judy would think that of you because you are probably her closest ally". Ms. Elliott also offered to talk to the Grievor, but Ms. Cole told her that this would probably be a waste of time because that had already been done. When Ms. Cole subsequently advised the Grievor that Ms. Elliott had told her that it had been Mr. Piper who had mentioned her name in the meeting, the Grievor said that it had been Ms. Elliott who had mentioned her name, and that Ms. Elliott was "a liar". Ms. Cole testified that this second conversation "probably occurred at least a month after the initial day because for about a month after that Judy never spoke to me". At the conclusion of her examination -in -chief, Ms. Cole testified that she would feel "anxious - anxiety" if the Grievor were to be reinstated. At the suggestion of her counsellor, in August of 2012 the Grievor contacted the Dean of Student Services, Maria 36 Lucido Bezely (the "Dean"), who is Ms. Elliott's supervisor, to discuss concerns about her relationship with Ms. Elliott. She gave the Dean a written summary of those concerns during their discussions on August 1st, and spoke with her again on August 31st. Since the Grievor had hoped to have an opportunity to further discuss those concerns with the Dean, she was disappointed when she received a memo from the Dean on September 6, 2012, advising her that because a number of the matters she had raised were the subject of grievances, it would be appropriate for further conversations on those issues to be part of the grievance process. That three-page memo also included the following passage regarding the Griever's criticism of the decision to replace Mr. Latimer with Mr. Lall: It is unfortunate that you disagree with Lori's staffing decisions, however, the assigning of duties and responsibilities is exclusively the right of management. Declining to adjust operations so you can work more closely with your preferred co-worker cannot reasonably be deemed to be contribution to a poisoned work environment. In reviewing some of the historical matters that led to your concerns, I note that you have previously brought your concerns regarding Kuljinder's performance to the attention of two members of management. In both cases you were advised that Kuljinder's performance was satisfactory and your criticism was unwarranted. It is the exclusive responsibility of management to evaluate employee performance. Any future unwarranted criticism of Kuljinder could be subject to discipline up to and including termination as per article 4.6.2 of the Collective Agreement. The Griever also displayed her disrespect for Ms. Elliott and Mr. Lall in an email that she sent to Ms. McClelland on January 29, 2013, regarding a meeting that was 37 to have been attended that day by the four of them, but which was postponed because Ms. McClelland was absent due to illness. In commenting on that postponement, the Grievor wrote: "We're saving 'our cluster meeting' for your return. Mostly so that I will have an impartial witness." The Grievor's disrespectful attitude towards Ms. Elliott is also clearly evidenced by the following email that she sent to the Dean on January 13, 2014, after being requested by Ms. Elliott to attend a meeting with her, Mr. Piper, and a Union representative on the following morning to discuss some concerns about workplace conduct: Hello Maria: I would infer that Lori once again intends to reprimand me for some exaggerated transgression or another. As previously requested, I would ask that you witness/ sanction any reprimand by Lori Elliott, as her treatment of me to date has been unfair, discriminatory and harassing in nature. It is particularly stressful during a time that we are short a Co-op Advisor for the other Mechanical cluster programs. The Grievor's negative opinion of Ms. Elliott was also confirmed by the evidence of Ruth McClelland, who was the second witness called by the Employer. It was Ms. McClelland's uncontradicted evidence that the Griever did not like Ms. Elliott and spoke negatively about her many times, stating that she was incompetent and that they should file a grievance against her as she had heard that if Ms. Elliott had one more grievance filed against her she would be fired. Ms. McClelland commenced employment with the College as a peer mentor, while enrolled in the College's paralegal program. After completing that program, she was employed by 38 the College as an employer -student liaison on a contract basis commencing in September of 2012, and as a full-time employee in that position commencing in January of 2013. In performing the duties of that position, she provided support to both the Grievor and Mr. Lall, as well as a number of other co-op advisors. Although the Grievor unconvincingly denied having done so, I accept Ms. McClelland's evidence that soon after she started working in that position, the Grievor told her that it was Mr. Lall's fault that Mr. Latimer was transferred. The Grievor subsequently repeated that assertion several times during the course of working with Ms. McClelland, and also frequently asserted that Mr. Lall was incompetent in his work. She also indicated that Mr. Lall had complained about her in the past, and that she did not think that the allegations that he made against her were true. She further stated that Mr. Lall was treating her disrespectfully, :ignoring her, and not responding to her emails. The Grievor had a steadfast view of how things needed to be done in order for the work to be performed properly, and was critical of any deviations from her approach. Ms. McClelland's testimony regarding that aspect of the Grievor's approach included the following observations: "She did things differently from every other co-op advisor. She liked things to be done in a particular way and would tend to micro - manage." One of the incidents about which Ms. McClelland testified took place on July 24, 2013, when a student (who Kim] will be referred to as "R" in this award, to protect his privacy) came to the Centre. R was enrolled in the College's mechanical engineering design and drafting co-op program, which was one of the programs for which Mr. Lail was responsible. Since Mr. Lall was not at the Centre that day, when R came to the reception area the receptionist phoned the Grievor in her cubicle and asked her to speak with him. Ms. McClelland overheard that phone conversation from her adjacent cubicle. The Griever then asked Ms. McClelland to come out with her to speak with R. There is conflicting evidence regarding what was discussed when R came to the Centre that day. It was Ms. McClelland's recollection that he was seeking advice about whether he should accept a full-time job that had been offered to him and leave the College with a diploma for completion of a two-year program, or turn down that job and continue in the three-year program as a co-op student. The Grievor, on the other hand, identified the matter discussed with R that day as being his concern that a co-op employment interview arranged by the College had not gone well because the interviewers had arrived half an hour late. The Grievor attributed their lateness to Ms. McClelland having forgotten to provide them with directions and parking instructions. Since that is the matter referred to by the Grievor in an email that she sent on July 25, 2013, in response to an email from Ms. McClelland complaining about how the Grievor had treated her on the previous day, I am satisfied that it was at least one of the 40 matters discussed, although it may be that the matter referred to by Ms. McClelland was also discussed. While speaking with R in the reception area that day, the Grievor told him that Mr. Lall should be the one talking to him "but as usual he's not here". This critical remark prompted Ms. McClelland to say "Well, it shows on his schedule that he's working at the Hazel McCallion Campus", to which the Grievor responded in a derogatory and sneering manner, "Well we know who wrote the schedule don't well. Although the Grievor did not remember that part of the conversation, she testified that there was anything inaccurate about the latter statement. Those comments made Ms. McClelland feel very uncomfortable, as she did not think they were appropriate things to be saying in front of a student. Consequently she told the Grievor "I think I'll just leave you and [R] and go back to my office", to which the Grievor said "No, I want you to stay here." Ms. McClelland felt very uncomfortable and somewhat angry about this, but did not argue with the Grievor because she did not think that was something which should be done in front of the student. However, after several minutes during which nothing that she attempted to contribute to the discussion was acknowledged by the Grievor as being valid, Ms. McClelland texted Ms. Cole to request that she come out and tell her that there she had a phone call for her, in order to give her an excuse to leave. After Ms. Cole complied with that request, Ms. McClelland went to Ms. Cole's cubicle and remained there for about half an hour because she thought 41 that the Grievor would be angry and did not want to have a confrontation with her. However, that strategy did not succeed as the Grievor confronted Ms_ McClelland later that afternoon, complaining that she was left to make excuses to R and telling her never to do that again. This made Ms. McClelland feel angry and resentful that the Grievor had put her in that situation in the first place. On the following day Ms. McClelland sent the Grievor a strongly worded email complaining about the way the Grievor had treated her on the previous day, noting that the Grievor was so poisoned against Mr. Lall that she could not even stand to hear his name, and suggesting that the Grievor might relieve a great deal of stress and extra work by directing Mr. Lall's students to contact Mr. Lall instead of trying to resolve their problems and issues herself. Ms. McClelland also wrote, in part, as follows in that email: First of all, DON'T ever pull that shit you did yesterday with [R] . I am not Kuljinder boss [sic] and I am not in a position nor do I have the authority/right/ business to tell [him] what he has to do, question him on where he is working and what he is doing. In contrast to your opinion, I do not have the "power" to make/tell him what to do or when to do it. It is not a personal attack or betrayal or insult to you if I am nice to him. I am not going to treat or act differently with him than anyone else. I personally do not have a problem with him. T will continue to support you as best I can without 42 getting involved in the whole Kuljinder situation. The Grievor's emailed response, which was sent about forty-five minutes later, included assertions that Ms. McClelland had treated her "in a most rude and uncooperative fashion" on the previous day, the suggestion that she "could have - at the very least - not have not walked away from [them]", and indicating that Ms. McClelland's personal criticism of her was "not welcome, and not founded on a sound working knowledge of / experience in our business processes and placement objectives". Ms. McClelland met with Ms. Elliott on Friday July 26th regarding that incident and arranged to meet with her again on the following Monday. On Sunday evening July 28th, she sent Ms. Elliott a copy of the email that she had sent to the Grievor on July 25th, along with a copy of the Grievor's emailed reply. When she met with Ms. Elliott on Monday July 29th, Ms. Elliott advised her that Human Resources had indicated that Ms. McClelland's use of the word "shit" in that email was inappropriate and might give rise to a complaint by the Grievor. Ms. Elliott suggested that it would be a good idea for Ms. McClelland to send the Grievor an apology. Since she did not want to lose her job, Ms. McClelland complied with that request on July 30th by sending the Grievor the following email: I just wanted to tell you how sorry I am about the email that I sent you. I was very angry and hurt when I wrote it to you. 43 I know that you asked me to be honest with you and I don't think that I honoured that request in a way that was helpful or courteous. I really regret the tone of my email and T don't want it to affect our relationship. I really have no justification for sending that to you except that I was feeling very upset and frustrated when I wrote it and I wished that T could take it back right after I sent it to you. All I can say is how sorry I am that I wrote that email to you and I hope that we can move forward and continue to work well together. You know that I like and respect you Judy, and the last thing I ever wanted to do was insult or offend or hurt you and I hope that our relationship is not damaged beyond repair as a result of my email to you. When Ms. McClelland was asked (during examination - in -chief) if Ms. Higginson had ever spoken negative words to her about Mr. Lall before the July 24th incident, she gave the following answer: Yes. There were several instances. They ranged from comments on his work, his lack of work, his not being present at the campus when she felt he should be. That he wasn't qualified to be in that position. That as a result of him not being there she was having to devote a lot of her time to advising his students. That was in general and there were specific things said. She would come into my cubicle and show me things on the computer that she was saying that he had put in there that were incorrect. She questioned several times if he was actually at the other campus that was on the schedule. She said on a couple of occasions that she thought that he had removed or changed notes that she had put in our system_ She commented several times that he hadn't posted a position correctly. In her testimony in these proceedings, the Grievor did not deny having made most of those statements, but she attempted to defend making them on the basis that the manner in which Mr. Lall performed his job adversely affected her ability to perform the duties of her position. She testified 44 that the volume of her work went up significantly, and that there was also the "intellectual morality issue" of her feeling responsibility to correct things that she knew to be incorrect. She further testified that Mr. Lall rarely provided help to any of her students and that she "felt a bit used, a bit taken advantage of" because she was "sharing more of the responsibility than was fair". The Grievor testified that she did not remember telling Ms. McClelland that Mr. Lall was not qualified for his position, but indicated that she thought that he required training specific to the program and to his specific job. She also testified that she did not remember questioning whether he was actually at the other campus. It was her evidence that she showed Ms. McClelland erroneous entries that Mr. Lall and other people had made in the database in order to show her how things should be done in order to avoid errors, and so that Ms. McClelland would know what was correct. She offered a similar justification for telling Ms. McClelland about system notes that she believed to have been removed or changed by Mr. Lall. She further testified that "when you use a shared data base, it's very important to follow data entry standards so that everyone using it knows where to find information", and so that the information comes out correctly on the resulting reports and forms. Ms. McClelland also gave evidence about a second incident involving R. She testified that sometime in August of 2013, the Griever uninvitedly joined a conversation between 45 R and herself in her cubicle, and repeatedly asked R to disclose the name of the company from which he had obtained a full-time job, despite R advising her that the paperwork had not yet been completed and that he would tell her after the contract was actually signed. It was also Ms. McClelland's evidence that during this conversation the Grievor told R that if he did not give her the name of the company, she was not going to help him again. When he continued to decline to give her the name of the company, the Grievor told him that she did not want to see or talk to him again, and then left. Ms. McClelland thought that this was "totally inappropriate", and that there "was no reason or basis for Judy to know whom he had taken a position from". She also testified that "the way Judy was asking him and talking to him wasn't professional". R had previously talked to the Grievor a number of times about financial problems that he was experiencing, and about whether he should leave the College after only completing a two-year program in order to obtain full-time employment, or whether he should remain at the College as a student in the three-year co-op program. During those conversations, she had advised him to remain in the co-op program. She had also told him that if he accepted a four-month co-op job and then quit before completing it, he would be withdrawn from the co-op program and given an automatic failing grade of "unsatisfactory" on his transcript. R subsequently accepted a tour -month co-op placement. On the day of the second incident, when the Grievor HA N. overheard R teiling Ms. McClelland that he had reneged on that co-op placement because he had found a permanent job, she went to Ms. McClelland's cubicle to ask him the name of the employer. She wanted that information because she suspected that it might be an employer which was new to the co-op program and which had recently agreed to provide a co-op job in order to be able to economically pre-screen applicants for longer term employment by getting a tax credit for the first four months that the person was employed. Although it was possible for an employer to do that if they selected a student who was completing the third year of the three-year co-op program on a work term, R was not in that situation as he had only completed two years of the program. Consequently, if that new employer hired R for full-time employment, the employer would not be eligible for the tax credit. When it was put to the Grievor (in cross-examination) that the reason R did not want to tell her the name of the employer was that he did not want her to interfere, she initially stated that she did not know his motivation but that she assumed that he did not want her to know because he was going through with what she had cautioned him against. When counsel for the Employer asked her again if she understood that R did not want her to know the name of the employer because he did not want her to interfere with the job, she replied, "That could be, but I'm responsible for the job because it's a College posting". She also expressed the view that she had a moral and legal responsibility to give accurate 47 information to her contact at that new employer, and to let him know that the tax credit he was counting on would not be available if R was the person hired to fill that position. She testified that she wanted to be able to update the College's records if the position that had been offered by the new employer would no longer be available to be applied for by other co-op students. She gave the following testimony about why she told R that if he did not give her the name of the employer, she would no longer help him: I can only help people who are truthful with me. You need to be straight with me to give you the best possible advice. I need to be straight with you. You can't take an employer by surprise if the employer is expecting a tax credit that they're not going to get. I wanted disclosure. That's all I was asking for. Later that month, the Grievor's contact at the new employer sent her an email advising that R had accepted a full-time position and asking her to let him know if he could "pursue having the first few months count as a Co-op". She responded by advising him that it was her understanding that R was "no longer in Co-op and as such, his wages would not qualify for the Cooperative Education Tax Credit". She also indicated that she was sorry that R did not tell him this. The Grievor also subsequently received an email from her contact at the company from which R had accepted the co-op placement, complaining (among other things) about R accepting full-time employment with another company after accepting that co-op placement, and blaming not only R but also the College for allowing the student to break that contract and still graduate with a diploma. .A When she was asked (during cross-examination) whether in hindsight she felt that questioning R about the name of the Company was in any way improper, she responded: "Not at all. That's my job. My role is to build partnerships and relationships in co-op. I was right to advise him as I did. I was right to be concerned." Ms. McClelland got along with Mr. Lall very well and had a pleasant working relationship with him. She never had any problems or issues with him, nor did she ever hear him say anything negative about the Griever. However, the courteous manner in which she spoke to Mr. Lall did not sit well with the Grievor. Although the Grievor professed having no recollection of it, I accept Ms. McClelland's credible evidence that after overhearing her sympathetically asking Mr. Lall about a health problem that his mother was experiencing, the Grievor came into her cubicle and asked her why she would talk to him like that and why she would ask him about his mother. From the way in which she spoke and the look on her face, Ms. McClelland knew that the Grievor was upset with her, and concluded that the Grievor did not want her to be polite to Mr. Lall, or to treat him in a caring or cordial manner. This made Ms. McClelland feel very uncomfortable and led to her trying not to sound too friendly or nice when she spoke with Mr. Lall in any conversation that might be overheard by the Grievor. She resented being spoken to in that way by the Grievor, and was so upset and hurt by it that it adversely affected how she felt about coming to work. Although the Grievor denied it, I also accept Ms. McClelland's evidence that the Grievor spoke with her several times suggesting that Ms. McClelland could file a grievance against Mr. Lall for not being on campus, not being there for his students, and not doing his job, leaving other people to have to do it for him. She also suggested that Ms. McClelland could request an increase in compensation through a change of payband, and that she could file a grievance if that request was not granted. Ms. McClelland acknowledged that, on occasion, she would agree when the Grievor said "Let's file a grievance", because it was the only way to stop the conversation, but also testified that she had "no intention to or reason to file a grievance". When the Grievor gave Ms. McClelland a ride to pick up her car from a mechanic in June of 2013, the Grievor told Ms. McClelland "I get the feeling that you're not willing to file a grievance anymore". When Ms. McClelland said that she was not sure that she wanted to do anything like that, the Grievor told her: "You're either with me or against me. If you're not with me, I'm not going to cover for you anymore and I will file grievances against you." Although the Grievor firmly denied ever having told Ms. McClelland that she should file a grievance against Mr. Lall, in the circumstances of this case I find the testimony of Ms. McClelland to be more credible on that matter than the Grievor's denial. When the Grievor was asked if she had any recollection of telling Ms. McClelland that she would not all cover for her anymore, she did not directly deny it but rather gave the following implicitly affirmative answer: "I couldn't keep covering people's jobs and my own. Physically I couldn't keep it up." Ms. McClelland was extremely upset by that threat, which made her feel intimidated and pressured. She went home and cried, and did not sleep very well that night. Since she remained very upset, she subsequently told Ms. Elliott about it. Although Ms. Elliott told her that this was a form of bullying, Ms. McClelland told her that she wanted to keep it "off the record" and did not want to kale a formal complaint because she was still on probation. In explaining why she took that approach, she testified: I was the new kid on the block. I didn't want to make any trouble or gain the reputation of being a trouble -maker in any way. I thought I could still deal with Judy in my own way by accommodating her as much as possible, by keeping pleasant, by not arguing with her, and by just doing my job as best I could. Ms. McClelland also told Ms. Elliott about a number of her other troublesome interactions with the Grievor on an "off the record" basis so that she would know what was going on, but remained unwilling to file a formal complaint. On Tuesday August 20, 2013, the Grievor sent the following email to Ms. McClelland at 11:02 p.m.: Way... to... freaking— go. I knew it, You blew away [a named student's] Placement Confirm, when you nuked [that of another named student]. (I know you meant well, but you should trust me, when it comes to database stuff.) Anyway, I recreated everything I could. 51 And it is now 11 pm. So I am going freaking -home. And I will probably not be in Wednesday before 11-freaking-a.m. In Case anyone wants to freaking dock me. When that email was put to her in cross-examination, the Grievor testified that she and Ms. McClelland talked about that email the next day and were laughing about it. In re-examination, she testified that she sent it in the context of a relationship with Ms. McClelland that she thought at the time was friendly and collegial. However, she acknowledged that it could be viewed otherwise by a third party, if taken out of context. She stated that given the opportunity, she would not use that phrasing again because it is too informal, but also indicated she did not look at it that way when it was sent, and suggested that it was merely a venting about having to fix a problem that had occurred a number of times. She also stated that it was "a very good example that if people don't understand how to use the database .... if they delete one record that can accidentally delete another one". She concluded her testimony about that email by stating, "Would I use different language now? Yes, it was way too informal. It was late at night. My point was that there was a problem doing what she did and that I had fixed it for her." The Grievor frequently came into Ms. McClelland's cubicle and showed her what the Grievor considered to be incorrect computer entries made by Mr. Lall. She also asked Ms. McClelland to take screen shots of some of those entries and to print them out. Ms. McClelland expressed agreement with 52 Union counsel when he put to her in cross-examination that making accurate entries in the database was important. However, she also testified that she did not know if the entries that the Grievor showed her were right or wrong. The Grievor was so distrustful of Mr. Lall that on one occasion she offered to pay for the gas if Ms. McClelland would go to the Hazel McCallion Campus to see if Mr. Lall was actually working there as indicated in his calendar. Although Ms. McClelland declined to do so, requests of that type made her feel resentful for being put in that position, angry, and quite stressed. It was her evidence that she generally spent a total of between half an hour and an hour and a half per day in conversation with the Grievor about Mr. Lall. This sometimes resulted in Ms. McClelland having to work through her lunch or to stay after the normal end of her workday in order to complete her work. She never asked the Grievor to leave because she did not want to have a confrontation with her. It was her evidence that if she disagreed with the Grievor or indicated that she did not want to do something that she had requested, the Grievor "would not respond positively and it would often turn into a debate and go back and forth", adding that since she "just did not want to have to deal with that every time", she would "either be noncommittal or agree with her because it was the easiest way to end the conversation and not have any confrontations". Although the Grievor had no recollection if it, I accept Ms. McClelland's evidence that she overheard a 53 telephone conversation in which the Griever told one of the co-op employers that Mr. Lall "is not here but he usually isn't", and that she had to take over his students for him. When she was asked how she felt about that telephone conversation, Ms. McClelland stated, "I didn't think it was appropriate or professional to be discussing another co-worker with an employer. 1 didn't think it reflected very well on us as a school." She also overheard a telephone conversation in which the Griever, in attempting to get a student to listen to what she was saying, told the student repeatedly to "shut up". After that conversation, the Grievor came into Ms. McClelland's cubicle and acknowledged that she should have told the student to be quiet rather than telling him to shut up. Ms. McClelland was also troubled by the fact that when the Grievor came into her cubicle to discuss Mr. Lall, she would close the door. This caused co-workers to comment that "this did not look very good". It also troubled Ms. Crowdis, for whose programs Ms. McClelland was also the employer -student liaison, because when Ms. Crowdis went to Ms. McClelland's cubicle to talk to her or ask her questions about work-related matters, she often found Ms. McClelland engaged in closed -door discussions with the Grievor. This adversely impacted her work as it made it difficult for Ms. Crowdis to get necessary information from Ms. McClelland; she would either have to come back again later, send her an email, telephone her, or knock on the door and apologize for interrupting their conversation. 54 The number of times that Ms. Crowdis encountered this difficulty increased from a couple of times per week in the Spring of 2013 to more numerous times per week in the Fall of that year. Ms. Crowdis told Ms. McClelland that this made her uncomfortable. She also told her that when she was in closed -door meetings with the Grievor, it gave the impression that they were planning, and that it was not a normal conversation. Ms. Crowdis was of the view that "it looked odd given the lay -out of the office", and it made her wonder what they were talking about. She also told Ms. McClelland that other people could have the same question. Those comments ultimately prompted Ms. McClelland to approach Ms. Elliott in January of 2014 and to speak with her for about an hour about the difficulties that she was having with the Grievor. The Grievor's explanation of why she sometimes closed the door of Ms. McClelland's cubicle when she was talking to her was that she did it so as not to disturb other people. However, it is clear from Ms. McClelland's evidence that those closed -door discussions were often replete with the Grievor's criticisms of Mr. Lall, and references to her desire to have him transferred to another job. The Grievor also voiced complaints about Mr. Lail to Ms. Crowdis "a few times - more than four [times] but less than ten". She told Ms. Crowdis that Mr. Lall was not posting enough jobs, that his students were coming to see her more often than they came to see him, and that she was also having 55 to deal with his employers. Ms. Crowdis initially empathised with those concerns. However, when the Grievor continued to voice them in subsequent conversations, Ms. Crowdis began to experience frustration because those conversations continued to occur despite Ms. Crowdis having advised the Grievor to stop dealing with Mr. Lall's students and employers, and to pass them on to him. The Grievor also received similar advice from others, including Ms. McClelland and Ms. Cole. The Grievor testified that she tried to stop doing work that related to Mr. Lall's students, but that she did not know how to separate the mechanical cluster group so as to break away her own students, because the programs are so intertwined, homogeneous, and inter --connected. Ms. Cole testified that on average the Grievor would talk to her about Mr. Lall at least once every couple of weeks, complaining that he was not a team player, was not conversing with her, and was not cross -posting jobs. The Grievor also told Ms. Cole that she did not like Mr. Lall and did not like working with him. Ms. Cole responded by saying: "Let him do his job. Why do you have to be involved in what jobs he posts? other teams don't cross -post them." However, she acknowledged in cross-examination that cross -posting might be desirable where the job could be suitable for students in more than one program, because it gives students more opportunities, gives the employer a broader choice of students, and creates more likelihood of a good match. She also acknowledged that it would be a problem W -I if such jobs were not being cross -posted, and that it might merit discussion with a co-worker. In an email dated January 21, 2013, Ms. Elliott advised the Grievor that "bolding sections of your emails is akin to raising your voice for emphasis and you need to be more sensitive to the impact of this practice". However, Ms. Higginson disregarded that advice and continued to do so by, for example, beginning an email to Mr. Lall on November 20, 2013 with the following bolded sentence: "Please do not amend, or reopen my postings without my prior consultation or permission." That email, which was part of a pattern of disrespectfully critical emails that the Grievor sent to Mr. Lall, was of concern to him because he sometimes needed to do so in order to protect the interests of his students who were applying for those jobs. During staff meetings, the Grievor often rudely and disrespectfully interrupted other speakers, talked over them, raised her voice, and went off on acerbic rants. She also referred to students as being "dumb". The Grievor was aware of the etiquette required at those meetings, because she was in attendance at a co-op meeting held on April 10, 2013, at which the following was decided (as recorded in the minutes of that meeting): Meeting Etiquette - decided by the group * One speaker at a time * Put your hand up to speak * Do stay on topic/pay attention to time limit 57 * Listen, don't talk while someone else is talking (no muttering) * Be respectful * Be on time * Prepare - read agenda and action items * Remain focused, no laptops, no texting. * May interrupt a speaker by raising a hand only: Requesting information or clarification Parliamentary inquiry Breach of the rules "point of order" * When speaker finishes others may raise hands Members who have not spoken will be given precedence * Decisions & future actions should be proposed and voted on where appropriate if indicated. When it was drawn to the Grievor's attention that she was rudely talking over someone else at one of those meetings, she apologised and ceased doing it at that meeting. However, her rude behaviour resumed at subsequent meetings. The offensive way in which she spoke at such meetings led to other employees not wanting to attend them. An example referred to in the testimony of more than one witness was a curriculum meeting held in the Fall of 2013, at which a group of ten or twelve staff members were discussing new pedagogical ideas. While a relatively new co-op student advisor named Jean Simpson was attempting to offer a number of ideas and suggestions, the Grievor responded negatively to what she was saying, vocalized that they would not work, and rudely talked over her while Ms. Simpson was attempting to speak. This HE caused frustration for some if not all of the others in attendance at the meeting. Ms. Peach described her reaction to it as follows: Frustration! It was a very frustrating meeting. Nothing was accomplished - a waste of time. People were agitated. Ms. Crowdis also felt very uncomfortable with the manner in which the Grievor was speaking to Ms. Simpson at that meeting. After it had continued for approximately ten minutes, Ms. Crowdis shut her binder and said, "That's it. I've had enough. I'm out of here", and walked out of the meeting. In describing how she felt at that moment, she tearfully testified that she felt "frustrated and upset", and that "it was the tone of the conversation that [she] didn't want to listen to". She further testified that if the Griever was reinstated she would feel "anxious". The Grievor's evidence about that staff meeting included the following testimony (during examination -in - chief), which is clearly indicative of her failure to comprehend the effect which her ovezbearing and disrespectful manner had upon co-workers: Q. Lorena Crowdis left a meeting? A. I remember that evidence. Q. Do you remember what you were discussing at the time she left? A. (pause) I really had forgotten about what it was, but I think it had to do with student advisor teaching and how to present course material. Q. Do you remember her leaving the meeting? A. I remember her leaving a few meetings early, a few 59 times yes, but usually it was because she had a class. Q. On any particular occasion do you know why she left. �L• Q. Did anyone call to your attention or criticise you for acting in a manner that caused her to leave a staff meeting. A. No. Q. Did you have a perception that your behaviour in staff meetings was disrespectful or disruptive? A. No. Ira. cross-examination, the Grievor testified that she did not remember having any discourse or disagreement with Ms. Simpson at that meeting. She further testified that she had no recollection of what was happening at the time that Ms. Crowdis walked out of the meeting, or before that occurred. She also confirmed that she did not know that Ms. Crowdis's abrupt departure from the meeting had anything to do with her, and stated, "It came as a big surprise to me." She further testified that no one ever said anything about it to her, and that the first time she heard about it was in this arbitration_ Ms. Peach testified that the meeting which Ms. Crowdis left was not the only meeting at which the Grievor acted disrespectfully toward co-workers and Ms. Elliott. She stated that the Grievor would talk very loudly over others to make her point, and further stated that if Ms. Elliott attempted to refocus a meeting which had gotten off track, the Grievor would say, "Let me speak, I'm talking" and just keep .1 going. It was also her evidence that the Grievor asserted at staff meetings that staff were creating "bogus jobs" and "phony stats", and questioned where they were getting their statistics and how they were doing their jobs. She further testified that in discussions about international students, the Grievor's regular comments were that her students "were idiots who can't form a sentence so how do I get them to write a cover letter" Although the Grievor did not remember specifics about it, she acknowledged (in cross-examination) that she very likely raised at staff meetings the importance of accurate data, as she felt very strongly that since the College was a public institution, there was a duty to have its statistics, including statistics about co-op job placements, based on accurate data_ She was also felt strongly that data should be input into the database in a consistent manner. She believed that the manner in which she did it was the correct way, because she had been on the committee that originally formulated it, and because no one had ever told her anything to the contrary. The Grievor testified that she did not remember calling her students "dumb", but she acknowledged that she might possibly have commented on her students having done something that was "dumb" or "stupid", such as a student indicating on his resume that he had an interest in reading books about sniper rifles, a student smoking a joint of marijuana during a break on a co-op placement at a military 61 base, or a student applying for a technical job who plagiarized a covering letter which included the assertion that he was "not just another guy in a grey suit". On July 25, 2012, on the advice of her counsellor, the Grievor concluded an email criticising a number of aspects of Mr. Lall's job performance with the following request: "If you will not transfer Cory Latimer (who contributed equally to the workload) back to the Mechanical cluster programs, then I respectfully ask that you transfer me out, so that I can assume a more reasonable program workload". However, in the Fall of 2013, she withdrew an application she had submitted for a posted co-op position in the accounting/finance portfolio because even though she knew that obtaining it would eliminate the problems that she had been encountering while working alongside Mr. Lall in the mechanical cluster, and also knew that Ms. Elliott was strongly supportive of her application, she did not think it was a good time for her to leave her existing position. In December of 2013, Mr. Lall applied for the position of job developer in the finance/accounting/banking and wealth management portfolio, and was the successful candidate. His testimony about why he applied for that position included the following: There were too many issues [with the Grievor].... It came to the point where I'd had enough of it so I had to look for something else. There were consistent issues. I couldn't post a job. I was getting these emails whenever I did and was being challenged all of the time. So I thought to myself, "I need to move on". This position came in and I applied for it. 62 Mr. Lall also testified that if the Grievor's behaviour could have been removed from the equation, he would not have applied for that new job and would have remained in the same job, because he got along well with the faculty in those co-op programs, and because his background of working with internationally trained engineers made it the best cluster of programs for him. His working situation improved after he obtained that new position, because he was no longer receiving emails from the Grievor and no longer had to deal with her. When he was asked at the close of his testimony in chief how would feel if the Grievor was reinstated, his response was "I would be scared." Ms. Elliott encouraged two very competent contract employees to apply for the position vacated by Mr. Lall. Although they were both seeking full-time employment with the College, they each declined to apply for the position because neither of them wanted to work with the Grievor. In explaining that this was not a reflection on the College, one of them told Ms. Elliott that he could not handle working with the Grievor because it would be too stressful. This did not surprise Ms. Elliott because the Grievor had a well-known history of being oppositional and aggressive in meetings, and being very controlling in how the people she worked with did their work, as she liked to have things done her way whether other people needed them done that way or not. After Mr. Lall obtained the aforementioned job developer position, it came to the Grievor's attention in 63 December of 2013 that Ms. Elliott was planning to put his replacement in a cubicle on the other side of the hall, rather than in the cubicle adjacent to hers, where Mr. Lall worked. When the Grievor became aware of this, she was very disturbed because she felt that it was extremely important to have the person she worked with close to her for purposes of co-ordination, communication, and training. Consequently, she approached Ms. Elliott in the hall and followed her into the workroom where, speaking very loudly and making arm gestures, she aggressively told her in an agitated state that she needed that workstation for the hybrid advisor in the engineering portfolio. In describing the manner in which the Grievor spoke to her on that occasion, Ms. Elliott also described it as disrespectful and as a "'take no prisoners' verbal assault". Since there were several offices within earshot of the workroom, Ms. Elliott advised the Grievor that this was not an appropriate forum, and suggested that they move into the private office that the managers share. When they arrived there, Ms. Elliott took a seat and gestured for the Grievor to do likewise but the Grievor declined to do so and remained standing while adamantly insisting that the workstation be assigned to the hybrid, and stating that she "would go as far up the food chain as was necessary to ensure that that would happen". At the conclusion of her tirade, the Grievor walked out of the office without Ms. Elliott having said anything to her. 64 Ms. Elliott felt a sense of frustration after that incident, because she was of the view that despite management's efforts to change the Grievor's behaviour, including the one -day and three-day suspensions, nothing was changing and the Grievor was continuing to conduct herself in the same way. She further testified: I felt that she was never going to take accountability. It was going to be the same pattern over and over again. We'd been clear to her that space assignments are managerial prerogatives. She continually expressed that she should have control over it, and she expressed it in inappropriate, volatile, public ways. There are lots of conversations not documented. When people said they wanted to talk about Judy my stomach would knot up because I don't know how to change her behaviour and I owed it to the employees to provide them with an environment where they can work and be free from harassment and abuse. In her testimony regarding that incident, the Grievor sought to justify the manner in which she had spoken to Ms. Elliott that day on the basis of the importance of the issue to her. She acknowledged that she had been adamant because she was so convinced that this was important. She testified that during a conversation she had with the President of the College four or five years earlier, he indicated that if an employee had an important concern and could not get it resolved by their manager, if they felt strongly enough it would be appropriate to go to the next level manager about it and, if appropriate, right up to him. Thus, she felt that she had a right to go up the managerial hiearachy to challenge a decision made by Ms. Elliott if she felt that the decision would adversely affect the co-op program and her ability to do her job. She testified that she thought that it was her 65 responsibility to communicate to management concerns or suggestions that would be beneficial to the success of the College, and that would minimise problems. She further testified that the reason she indicated that she would go up the line was that she wanted Ms. Elliott to take that into consideration, and wanted her to understand how important the issue was to her, but that she never meant it to be a threat or form of intimidation. She did not have the opportunity to take the issue higher because of her discharge, but indicated she would ultimately have accepted the decision of the President or the Board of Governors. Ms. Elliott was of the view that the Grievor had been insubordinate with respect to that workstation assignment through the manner in which she loudly raised the issue in the workroom within the hearing of other staff, and through her threat to go over Ms. Elliott's head regarding that matter, which Ms. Elliott considered to be a matter of the Grievor's personal preference rather than a legitimate work-related concern. The Grievor was terminated on February 4, 2014, for reasons summarised in the following portion of a letter which Ms. Elliott sent to her on that date: This letter is a summary of our meeting today in which it was communicated that your employment with the College is ending. Also in attendance was Jay Jackson, OPSEU Local 245 and Ryan Piper, Human Resources Portfolio Manager. On January 14, 2014 the College met with you to discuss co-worker allegations that you are continuing to behave inappropriately in the workplace. The witnesses allege that you have continued to engage in bullying IP behaviour. Moreover, it was alleged that this behaviour was directed towards Kuljinder Lall and, the College notes, you have been disciplined twice previously for your conduct towards this employee. It was also alleged that you openly refer to students in a derogatory and disrespectful manner. Furthermore, your conduct was such that it was having a negative impact on others in the workplace beyond Mr. Lall. On January 14th, you denied all the allegations but did confirm that you are very displeased with Mr. Lall's performance. The College asked you to whom else it should speak regarding the allegations and your behaviour and you suggested Ruth McClelland. You were instructed to keep the content of the meeting confidential from other employees including those who may be involved. The College interviewed Ms. McClelland and she corroborated the allegations made by other co-workers regarding your behaviour towards Mr. Lall and made further allegations in that regard. She also indicated that you have bullied her_ As well, Ms. McClelland stated that you spoke to her after our meeting on January 14th and told Ms. McClelland that HR would be contacting her and that you gave her directions on how to respond to questions_ The College met with you on January 30, 2014 and you continued to deny the allegations put to you on January 14th, and you also denied Ms. McClelland's allegations despite the College having engaged her on the matter at your suggestion. You also provided no reasonable explanation for why numerous colleagues would be dishonest when describing your behaviour to the College. Based on the foregoing, the College has no choice but to conclude that you have continued to engage in bullying behaviour contrary to the Collective Agreement. You have done so despite management communicating clearly and on multiple occasions not to do so. You have also demonstrated, through your responses to management inquiries, that you have no remorse for your behaviour even when presented with the impact your behaviour has on individuals and the workplace in general Furthermore, on January 30th, the College also asked you to explain your continued challenging of management's right to assign workstations. You deny challenging management's right in front of co-workers, despite witness statements to the contrary, but you acknowledge having told me that you will file a 67 complaint to my superiors if I do not assign a workstation in the manner you would like. You further explained that you believe that you can repeatedly challenge a management decision if, in your opinion, it disadvantages students or if, in your opinion, it interferes with your ability to service students. Your actions and attitude towards management are wilfully and flagrantly insubordinate. The College has reviewed your behaviour and your response to management's attempts to correct your behaviour. The College has also reviewed the impact your behaviour has on the workplace. The College has also reviewed its obligation under the Collective Agreement and the Ontario Occupational Health and Safety Act to ensure that employees are free from bullying/psychological harassment. Consequently, the College has determined that it has no choice but to terminate you for cause effective immediately. [The concluding paragraphs of the letter pertain to final pay arrangements, pension and life insurance benefits, and the return of Sheridan property to the Human Resources Department.] After leaving the January 14, 2014 meeting referred to in that letter, the Grievor went to Ms. McClelland's cubicle and told her that Mr. Lall, Ms. Simpson, and Ms. Peach had filed a poisoned workplace environment complaint against her, and that she had told management that Ms. McClelland was someone they could talk to about the concerns that had been raised by them. She also told Ms. McClelland, "You don't have to lie. Just say 'yes' or 'no'." Ms. McClelland took this to mean that she should not volunteer any information. She was surprised by this, and also felt resentful and angry that the Grievor was putting her in that position. Ms. McClelland subsequently told the Grievor that she had met with management but had been instructed not to talk about it. When the Grievor said "You look stressed", Ms. McClelland said "I am". At that point the Grievor slammed her hand down on the desk and said, "I knew it. You threw me under the bus". When Ms. McClelland replied, "I didn't Judy. They already had all of the information", the Grievor said, "They tricked you into telling them things. That's it. I can't talk to you anymore. Please leave". The Grievor then went home, after advising Ms. Elliott that she felt sick. Ms. McClelland completed her examination in chief by stating that she felt "relieved" when she heard that the Grievor had been discharged, and that she would be "horrified" if the Grievor was reinstated. However, in cross-examination she acknowledged that about a month after she returned from vacation and found that the Grievor had been discharged, she sent the Grievor a card reading "Take each day one step at a time and time will take care of the rest", in which she wrote the following personal message below the card's printed internal message reading "Hope Today Is a Very Good Day for You": Judy, I am sorry for what has happened. I was completely taken by surprise when I came back from vacation to find you weren't here. I hope that things work out for you_ Thinking of you and wishing you. the VERY best. Ruth Ms. McClelland testified that she sent that card because she felt badly and never wished to harm the Grievor. Following her discharge, the Grievor also received a card from Ms. Crowdis, in which she wrote: Judy, So sorry things couldn't have turned out differently. 61'N- Take care of yourself. Lorena As indicated above, co-op student advisor Jenny Peach was the third witness called by the Employer in these proceedings. During 2013 she usually worked at the Davis campus co-op office one day a week, but was also there for two days during some weeks. The cubicle assigned to her was located across the hall from the Grievor's cubicle. While working there, she was frequently disturbed by negative comments that the Grievor made to Ms. McClelland about how Mr. Lall did his job. She was also disturbed by negative comments the Grievor made about students, such as calling them "stupid" and "idiots", and by negative comments that the Grievor made about employers. She attempted to block out those distractions by wearing headphones, but that was not totally effective and they continued to negatively affect her productivity. Since she did not want students to hear the Grievor's negative comments, she would either arrange to meet with them in her cubicle prior to the Grievor's usual arrival time of 11:00 a.m., or arrange to meet with them in a meeting room or in the lounge area. Ms. Peach had previously worked with Mr. Lall when he was covering the maternity leave of a job developer for the co-op programs that Ms. Peach supported. She testified that he was good to work with, that she could rely upon him, and that she had no issues or concerns with him. Since she was troubled by the Grievor's attitude and conduct towards him, 70 she attempted to help him with his relationship with the Grievor. Since the Grievor tended to be the most vocal about her issues and concerns on the days when Mr. Lall was not at the Centre, Ms. Peach would send him a "heads up", such as the following message that she texted to him on June 17, 2013: I heard Judy over there whispering away to ruth, she is obviously talking about you. She asked ruth if you were hear on friday. [sic] She said she is going to deal with it when she is back from her info session. Prepare for another attack of some sort. She texted that message to Mr. Lail after she heard the Grievor shout at Ms. McClelland over the baffle "What's going on? Come over here", to which Ms. McClelland replied, "I'm working on something, you come over and see me". She also heard the Grievor raise an issue about vacation coverage and ask Ms. McClelland in an agitated manner whether Mr. Lail had been in on the previous Friday. After the Grievor went into Ms. McClelland's cubicle, Ms. Peach no longer heard what they were talking about because they were whispering. It was also her evidence that she sent Mr. Lail messages like that on several other occasions. It was Mr. Lall's practice to give Christmas presents to his colleagues every year. In mid-December of 2013, he gave cologne to Ms. Elliott, Ms. McClelland, Ms. Peach, Ms. Simpson, and Ms. Higginson. He also gave chocolates to them and all of the other staff in the co-op office. Since the Grievor was not in her cubicle when he distributed those gifts, he left hers on the desk in her cubicle. After finding 71 them her desk and being advised by Ms. McClelland that they came from Mr. Lall, the Grievor stated that she did not want them. When Ms. McClelland asked her if she was sure, the Grievor responded "Would you take anything from him after what he's done to me?" While working in her cubicle on Monday December 16, 2013, Ms. Peach also heard the Grievor talking about the chocolates that Mr. Lall had given to her. Her evidence regarding what the Grievor said was: "He gave me stupid chocolates. I don't like them, I don't like him, I despise him." She also testified that the Grievor said "I hate him". Although all that the Grievor professed to recall about that incident was that she had asked Ms. McClelland if she wanted the chocolates, I accept the credible testimony of Ms. McClelland and Ms. Peach about the other things that the Grievor said. Ms. Peach also testified that on December 16th the Grievor was loudly complaining about the manner in which Mr. Lall had labelled a job posting, and loudly asserting that Mr. Lall was "making up phony statistics". Although the Grievor had no recollection of that incident, she did acknowledge that she might have characterised what she perceived to be skewed, inaccurate, or misleading statistics as "phony statistics". Ms. Peach was also disturbed that day by the sound generated by the Grievor doing what Ms. Peach characterised as "furious typing" and "angry typing" on the computer. When the Grievor was asked about that during her testimony, she said 72 that she did not really know what Ms. Peach was talking about. She further testified that no one ever approached her to suggest that she should type in a different manner. The Grievor's conduct that day made Ms. Peach feel "uncomfortable, sad, upset, frustrated, unable to do [her] job, and unable to focus". She left work early that day because she was not being productive, and because she felt that she was "sitting in a toxic environment" and thought that she needed to leave. After reflecting on what had occurred that day and concluding that she did not want to go back into that toxic environment, Ms. Peach sent the following email to Ms. Elliott on the following morning: Is it okay with you if I use Jean's/Marvin's old space at Davis on Monday's until someone else is hired. I am finding it very difficult to work across from Judy and Ruth. The amount of non -work related chatter and unpleasant discussion regarding Kuljinder and how he does his job is both toxic and unproductive. Clearly they have plenty of time on their hands to waste looking at notes and looking for ways to build a case against my coworkers. I find it challenging to focus when they both get going. She also advised Ms. Elliott that she had left work early and told her why. In describing what prompted her to raise those matters with Ms. Elliott, Ms. Peach referred back to the meeting which Ms. Crowdis had left in disgust over the way in which Ms. Simpson was being treated by the Grievor. After that meeting, Ms. Peach approached Ms. Crowdis to tell her that she was proud of her and wished that she had followed her. She subsequently gave a lot of thought to what had occurred, concluding that she had been a bystander to the 73 Grievor's bullying for too long and that she would take action the next time it occurred. The examination -in -chief of Ms. Peach concluded with the following evidence: Q. You came forward in late 2013. Why didn't you come forward earlier? A. I just didn't feel courageous. I knew that the minute I stood up there would be a ripple effect. I wasn't ready to take that on. The minute I stood up I knew I would be putting myself in harm's way. The minute I stood up I knew I'd get resistance from Judy. Q. In harm's way from whom? A. Judy. Q. How would you feel if Ms_ Higginson was reinstated? Pick one word. A_ Worried. Ms. Elliott remained the College's Career Education Director until May 5, 201d, when she was promoted to the aforementioned Associate Dean position. During the three month period that she remained in her old position after the Grievor's discharge, she noticed a significant improvement in the workplace atmosphere, which she described as being lighter and more jovial. She testified that the environment was more lively, and that there was more laughter and a greater sense of optimism. Although Ms. Elliott felt a lot less stressed after the Grievor's employment was terminated, she also felt quite sad about having to come to that decision, as she had hoped that the Grievor would "see the light" and change her behaviour. she also gave the following testimony: I certainly didn't view working at Davis with the same 74 trepidation. I knew I wouldn't have to experience one-sided tirades in the workroom. I wouldn't have to hear employees or see them come into my office, close the door and say "I need to talk to you about Judy". I knew those type of conversations had gone away, the ones that made my stomach knot up and left me with a sense of futility and hopelessness. Ms. Elliott was then asked (during examination -in -chief) "When you say you were sad, does that suggest that you doubt your decision now?", to which she responded: I don't doubt it at all. I'm just sad that it was the only decision that we could come to. I'm sad [the Griever] did not take accountability for her actions or commit to changing her communication style and conduct. I believe it was the right choice and the only one that could be made but that doesn't mean it was an easy choice or the one I had hoped for. When she was asked how she would feel if the Grievor was reinstated, Ms. Elliott stated: I would be crushed. Not for me, I don't work there anymore, but I would be crushed for her co-workers. I know what her impact was on her co-workers and they know what's going on here [in these arbitration proceedings]. One approached me in the hallway the other day and said, "Please tell us she's not coming back". After her departure, one of them requested a risk assessment because they were afraid she would come back and react violently. I don't think I understood the full effect of her conduct on their psyche. They were in fear. It was gut -wrenching to me. The Grievor testified that she would like to be reinstated because she derived immense satisfaction from being able to help students help themselves to succeed. She also enjoyed interacting with employers. She expressed the view that she was good at her job, and that she has more to contribute at the College. She testified that if reinstated, she would conduct herself differently by trying to be more successful in communicating with people. She stated that 75 there must be something that she can do to better communicate the importance of the issues that were of concern to her, suggesting that there might be a course that she could take to improve the way she presents material. She indicated that she would separate her private life from her work life a little more, noting that it had been hurtful for her to hear in these proceedings things she did not previously know from people she thought were friends who had been honest with her. She also indicated that although she believes that humour is a good stress -reliever in the workplace, she would be a little more business -like, and would not joke with her co-workers as much. She also stated, "I just don't know how to make people be honest with me. I hope they are, but I don't know". She further indicated that she planned to get her hearing checked, because she might be louder than she thinks she is. In commenting on what witnesses had said about her during the course of the hearing, she stated: I think if these people really think this way, maybe 1 need a public speaking course or counselling. I was not cognizant unless people tell me. I don't know what to make of a lot of it, to tell the truth. During the course of argument, reference was made to the following provisions of the 2011-2014 Support Staff Collective Agreement (the "Agreement")" 3 MANAGEMENT FUNCTIONS 3.1 Union Acknowledgements The Union acknowledges that it is the exclusive function of the Colleges to: maintain order, discipline and efficiency; - suspend or otherwise discipline employees, 76 subject to the right to lodge a grievance as provided for in this Agreement. The Colleges agree that these functions will be exercised in a manner consistent with the provisions of this Agreement. 4 UNI©N MANAGEMENT INTERESTS 4.6 Harassment 4.6.2 Bullying/Psychological Harassment The College shall make reasonable provisions to ensure that employees have the right to be free from bullying/ psychological harassment as defined within this article. The College and the Local Union shall cooperate to the fullest extent possible to ensure the workplace is free from bullying/psychological harassment. Bullying/psychological harassment refers to any vexatious behaviour that is known, or ought reasonably to be known, to be unwelcome and that: - takes the form of repeated conduct which could reasonably be regarded as intending to intimidate, offend, degrade or humiliate, and/or - affects an employee's dignity, or psychological or physical integrity, and/or - results in a harmful work environment. Examples of bullying/psychological harassment include, but are not limited to, the following: - berating/belittling an individual; - repeated unwarranted criticism; - undermining or deliberately impeding a person's work; - spreading malicious rumours or gossip that is not true; - physical gestures intended to intimidate, offend, degrade or humiliate an individual. Reasonable action by a College, a manager and/or a supervisor in the course of managing the workplace is not bullying/psychological harassment.... The parties recognize that bullying/psychological harassment is unacceptable in the workplace, and to 77 that end acknowledge the following objectives: - a complaint of this nature shall be promptly investigated and, where warranted, appropriate action taken; - allegations found to be true, will be treated as a disciplinary offence that could lead to dismissal. During argument, reference was also made to the following provisions of the Occupational Health and Safety Act, RSO 1990, c. 0.1 ("OHSA") : Part III.0.1 VIOLENCE AND HARASSMENT Policies, violence and harassment 32.0.1 (1) An employer shall, (b) prepare a policy with respect to workplace harassment; .... 32.0.5 (1) An employer shall develop and maintain a program to implement the policy with respect to workplace harassment required under clause 32.0.1 (1) (b) . The College's Workplace Harassment Policy (which became effective on April 9, 2013) requires the Employer to provide a workplace free from all forms of harassment, and requires management staff to ensure that harassment is not tolerated, ignored or condoned. It also includes the following description of "harassing behaviours": Harassment results from a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. This type of harassment does not violate any of the prohibited grounds outlined in the Ontario Human Rights Code_ Harassment can make a person feel uncomfortable, embarrassed, offended or intimidated. Types of behaviour that may constitute harassment include, but are not limited to: M * Ongoing condescending comments * Repeated offensive gestures or comments * Practical jokes which result in insult or embarrassment * False accusations * Abuse of authority which negatively disrupts or prevents the performance of workplace duties * Intimidation or coercion * Bullying * Actions which create a "poisoned environment" which is hostile, intimidating or offensive An isolated insult or adverse comments does not constitute harassment. Normal exercise of supervisory responsibilities including appropriate performance management, training, work assignment and discipline does not constitute harassment. Submissions In addition to the submissions which are summarised below, counsel also made extensive submissions regarding the evidence adduced in these proceedings. Those submissions have all been duly considered in deciding this matter, and in making the findings set forth above. Summary of Employer Counsel's Submissions This is a discipline case about the suspension and discharge of the Grievor for aggressive, abusive, disrespectful, and poisonous behaviour. The Grievor was given a three-day suspension in May of 2412 for culpable behaviour that occurred in and around April of that year. The suspension letter warned the Grievor that further conduct of a similar nature could lead to termination. In essence, the termination was for not stopping her aggressive, abusive, disrespectful, and poisonous behaviour, as directed. All of the incidents that occurred in the twenty-one month period between her suspension and her discharge establish that she 79 did not listen to what management was telling her, accept that she had a problem, and reform her manner of dealing with others at the workplace. A bullying case is a mosaic, in which incidents must be considered in their totality, rather than being considered in isolation. However, any one of those incidents is cause for discipline and, based on the culminating incident theory, any one of them is cause for discharge. The Grievor felt a strong need for Mr. Lall and others to do things "her way" and was very resentful when others did not always do so. She took her resentment out on Mr. Lall, Ms. McClelland, and others. Employees are all entitled to a workplace that is free of abuse. An employee who is upset with another employee is not entitled to bully, harass, or demean that employee. The Grievor's insolent and disrespectful conduct towards Ms. Elliott constituted insubordination. Alternatively, it constituted culpable abuse. The College recognized that the Grievor's behaviour was a problem that had serious workplace consequences. It sought to solve that problem by doing its best to cause a change in her behaviour, and to support the people affected by her behaviour. This was a complex problem, managed reasonably by the College in accordance with its management rights. Although she was warned and offered assistance, the Grievor was not open to being helped. She had a deep contempt for management and no respect for its solution. She wanted it her we way, and bears the consequences of that choice. The penalty analysis is driven strongly by the long record of the College's disciplinary and non -disciplinary efforts to reform the Grievor's behaviour. Those efforts sadly failed, because the Grievor could not bring herself to accept responsibility for the problems she created in the workplace, and could not stop blaming others for her circumstances. At the time of her discharge, the Griever's employment relationship with the College was irreparably damaged. The authorities relied upon by Employer counsel in support of his submissions include R. v. Dexter, 2013 ONCA 744; Re Toronto Transit Commission and A.T.U., Local 223 (Parkinson), 2015 CarswellOnt 14985 (Shime); Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) ; R. V. Find, [20011 1 S.C.R. 863; Re North York General Hospital and C.U.G.E. (1973), 5 L.A.C. (2d) 45 (Shime); Re Air Canada and Canadian Air Line Employees' Association (1981), 4 L.A.C. (3d) 68 (Shime); Re Island Farms Dairies Cooperative Assn. and Teamsters. Local 464 (1989), 4 L.A.C. (4th) 436 (Maclntyre); Re Brewers' Warehousing Co. Ltd. and United Brewers' Warehousing Workers' Provincial Board (1982), 6 L.A.C. (3d) 104 (Egan); Re Alberta (Department of Recreation & Parks) and A.U.P.E. (1989), 5 L.A.C. (4th) 420 (Beattie); Re ITT Cannon Canada and C.A.W., Loc. 1090 (1990), 15 L.A.C. (4th) 369 (H.D. Brown); Re Toronto Transit Commission and ATU, Local. 113 (Merolle) (2013) , 240 L.A.C. (4th) 436 (Shime) ; University Health Network v. O.P.S.E.U., 2008 CarswellOnt 683 (Albertyn); Sharma v. The Regional Municipality of Waterloo Police Services Board, 2015 HRTO 1678; Re Evraz North America and USW, Local 5034 (Langan) (2015), 257 L.A.C. (4th) 369 (Tettensor); Brown and Beatty, Canadian Labour Arbitration, paras. 7:3660, 7:4427, and 7:4428; British Columbia Railway v. C. U.T.E. , Local 5, 1982 CarswellBC 2655 (Hope); Re Ford Motor Company of Canada and U.A.W. (1951), 3 L.A.C. 891 (Cross); Re Parmalat Canada Inc. and C.A.W. L. 462 (Leach) (2005) , 141 L.A.C. (4th) 377 (Jamieson) ; Re Inventronics Ltd. and U.S. W. , Local 9175 (Jensen) (2010), 192 L.A.C. (4th) 360 (Wood); Re Winpak Ltd. and C.E.P., Local 830 (Cook) (2010) , 194 L.A.C. (4th) 154 (Robinson); Re Canada Safeway Limited and UFCW, Local 1518 (McMann), 2004 CarswellBC 3855 (Foley); Re Windsor (City) and LUPE, Local 543 W Esperence) (2013), 233 L.A.C. (4th) 28 (Goodfellow); Re Victoria General Hospital and HEU (Poole), 2003 CarswellBC 3999 (Sanderson); Re Sheridan College and OPSEU, Local 245 (Higginson), supra; Re EPCOR Utilities Inc. and IBEW, Local 1007 (Dacko) (2013) 234 L.A.C. (4thO 265 (Smith) ; Saskatoon (City) v. C.U.P.E., Local 47, 2012 CarswellOnt 3306 (Hood); Re Durham {Regional Municipality) and C.U.P.E., Local 132 (2011) , 213 L.A.C. (4th) 205 (Bendel)7 Re Continuous Colour Coat and U.S.W.A (1975), 9 L.A.C. (2d) 326 (Abbott); Re Sunnybrook Health Sciences Centre and ONA (Worthington), 2009 CarswellOnt 10070 (Goodfellow); and Re Ontario Hydro and C.U.P.E., Local 1000, 1988 CarswellOnt 3814 (Brent). 82 Summary of Union Counsel's Submissions The Griever's conduct does not match the characterisation that Employer counsel has given it. While on one or two occasions the Grievor was perhaps a little overly informal or perhaps a little immoderate, there is nothing approaching conduct that is insubordinate, aggressive, abusive, disrespectful, or poisonous. The College did not have just cause to suspend the Grievor for three days nor to discharge her after twenty years of employment during which she robustly engaged with co-op students and employers to assist their relationships, and successfully fulfilled the objectives of the co-op program. The Grievor had a passion for the integrity of that program, and wanted to ensure that the students, the College, and the co-op employers were best served. Her assertiveness about issues did not constitute insubordination. The applicable legal framework is simple: an employee cannot engage in conduct that significantly disrupts the output of the enterprise. There is a level at which certain kinds of conduct become problematic, but merely characterising behaviour as improper does not make it so. There has to be objective impropriety in the behaviour. While the workplace is not a debating society, it is also not a para -military organization. Employees are entitled to express their ideas, although the manner in which they do it is important. The Grievor's conduct in this case did not rise to the level of the objective requirement for improper behaviour deserving of discharge that the cases lay out. This is a case in which the Grievor's behaviour has been over -characterised, and in which the Employer did not want to and did not in fact address the underlying issue of the ineffective manner in which Ms. Higginson's colleague was performing his job. The Employer failed to do what needed to be done, and set implausible expectations for the Grievor to meet. Although the Employer's failure to address that issue would not provide an excuse for misconduct, it does explain why Ms. Higginson would get a little frustrated by the situation. It was not improper for her to ask her colleague why he did something in a particular way, and to attempt to indicate to him the way it should have been done. Although she was told to stop doing his work, sometimes that was impossible. It would also have been a disservice to the organization, as it would have led to the loss of co-op employers, resulting in less availability of co-op placements for students. It is entirely understandable why the Grievor did not want that to happen. The College has a Workplace Harassment Policy, as required OHSA. When Ms. McClelland advised Ms. Elliott in June of 2013 about the incident that occurred in June of 2013 when the Grievor gave Ms. McClelland a ride to pick up her car from a mechanic, Ms. Elliott should have contacted the College's Manager of Equity and Human Rights Services so that an investigation could have been conducted in a timely manner, rather than salting it away to be unfairly brought forward and used as a culminating incident in the termination of the Grievor's employment. Although that does not void the termination, it does provide another example of the Employer's failure to address problems in the workplace when they were drawn to the attention of management. The Dean also failed to adequately address the concerns which the Grievor raised with her in August of 2012. The Employer misconceived or ignored the problems raised by the Grievor, and then characterised her attempts to communicate with Mr. Lall about them as harassment. Whether the Grievor said "get out" or "please go now, we're in the middle of a conversation" on March 30, 2012, her statement was nothing more than terse. Telling other employees that Mr. Lall got the office that used to be hers or stole her office was not brilliant workplace discourse but is not really offensive. The "karma" comment was merely office banter in which the Grievor used a colloquial expression which means "what goes around, comes around". Now that the Grievor knows that it has religious significance to Mr. Lall, she would be more careful. When the Grievor spoke to Mr. Lall over the baffle on April 16, 2012, she was raising work-related matters that needed to be addressed. She is a forceful individual who was very interested in the integrity of the database. Frustrated workplace dialogue is not the same thing as berating. While the manner in which she expressed her frustration was not perfect workplace dialogue, the volume at which she spoke increased because of Mr. Fall's HI unresponsiveness. When Ms. Cole subsequently told her that she had been too loud, the Grievor apologised. Those incidents did not warrant any discipline. Alternatively, if some discipline was warranted, the three-day suspension imposed by the College was excessive. The Grievor did not resist the Employerle desire that she obtain counselling. Although her efforts to arrange it through the College's Employee Assistance Program provider prior to being suspended timed out, she ended up getting it elsewhere. Although the Employer alleges that the Grievor was disrespectful to students, there is no evidence of any student complaint having made against the Grievor during her twenty years of employment with the College. It is also important to consider the context in which the allegedly disrespectful statements were made. The Grievor had experience in dealing with R, with whom she had an established relationship. There was nothing wrong with her telling him that as usual Mr. Lall was not there, and stating "we know who wrote the schedule don't well. Those were objective facts which were not discourteous to Mr. Lall. It was entirely proper for the Grievor to ask R the name of the employer that was hiring him for full-time employment, as she had valid institutional reasons for seeking that information. The Grievor does not agree that she attempted to pressure Ms. McClelland to file a grievance. There is nothing wrong with discussing grievances with a co-worker, or telling :. a co-worker that a grievance could be filed. The Grievor was no doubt speaking passionately and talking with her hands when she approached Ms. Elliott in December of 2013 to protest Ms. Elliott's plan to put Mr. Lall's replacement in a cubicle on the other side of the hall, rather than in the cubicle adjacent to hers where Mr. Lall worked. However, there was no physical threat, no profanity, no name-calling, and no words that suggested some kind of insult. It was not improper for the Grievor to indicate that she felt so strongly about the matter that she would go to Ms. Elliott's superiors about it. No one else was present when the Grievor said that, and there is no evidence that anyone overheard it. What the Grievor said to Ms. Elliott that day was not insubordinate. Although it was Ms. Elliott's perception that the Grievor was challenging her managerial authority, all the Grievor was saying was that she disagreed with Ms. Elliott's plan and that she would take it up the chain of command if necessary. The Grievor's cautionary advice that Ms. McClelland should tell the truth but just say yes or no when answering management's questions does not sound in discipline, nor does her subsequent comment that Ms. McClelland "threw [her] under the bus". The comments that the Grievor made about Mr. Lall's Christmas present also fall into the category of things that are not worthy of discipline. Most of the incidents relied upon by the Employer in support of the Grievor's discharge were minor. Many of ME them were not acted upon at the time they first came to management's attention and consequently are not part of the Grievor's employment record. The Employer overreacted to some of the Grievor's conduct but ignored the conduct of other employees, such as the text that Ms. Peach sent to Mr. Lall on June 17, 2013, spreading poison about the Grievor by advising him that she was "whispering away to [Ms. McClelland]", and warning him to "Ip]repare for another attack of some sort", Ms. Elliott's conduct was also not up to standard. No one looks perfect in this case. The Grievor is passionate, challenging, and absolutely dedicated to the co-op program. The allegations of harassment and insubordination have not been made out to the degree that is necessary to sustain a discharge. That penalty is disproportionate in the circumstances of this case. The Grievor has twenty years of seniority and is in her late fifties. It is difficult for a person of that age with only some college education to obtain alternate employment. Since there was no just cause for discipline or discharge, the grievances should be allowed and the Grievor should be reinstated with full. compensation. The three-day suspension should also be set aside. If there was something that needed to be brought to the Grievor's attention, a letter of warning would have been the appropriate disciplinary response. The cases relied upon by the Employer illustrate the type of objective basis required to support the suspension or discharge of a long service employee. In the present case there is none of the serious misconduct which formed the basis of those cases. In addition to distinguishing cases cited by the Employer, Union counsel relied upon Re Sauder Industries Ltd. and I.W.A. - Canada, Loc. 1-217 (1998), 70 L.A.C. 516 (McKee); Re Southern Railway of British Columbia and I.C.T.U., Loc. 7 (1996) , 60 L.A.C. (4th) 11 (Moore) ; R. v. Vaccari 2008 QNCJ 351; Re Tenant Hotline and Peters and Gittens (1983), 10 L.A.C. (3d) 130 (MacDowell); and Re Municipal District of Northern Lights No. 22 and A.U.P.E., Loc. 118 (Van Cleemput) (2008), 169 L.A.C. (4th) 427 (Casey). Summary of Employer Counsel's Reply Submissions The Union's theory that the concerns of the College and the Grievor's co-workers are illegitimate is implausible. It reflects the Grievor's mistaken belief that the College's concern about her conduct and its management of that concern were nothing more than harassment. The College engaged in a genuine, long-term effort to reform the Grievor's aggressive, abusive, disrespectful, and poisonous behaviour. The Grievor ought to have known what was expected of her, but could not and did not reform. Union counsel's submissions confirm that Ms. Higginson has not acknowledged any wrongdoing. They attack an insubordination "straw man" instead of addressing a case about bullying, harassment, and abuse head on. The Grievor has a long and problematic record of bullying, harassment, and abuse. Her proven contempt for management was part of her motivation, along with her commitment to certain technical ideals. It explains why she would not listen to management and abide by its behavioural standard of treating others with respect. The Grievor puts work performance and technical issues over human considerations. The College takes the opposite view; people matter, not work performance. Contrary to Union counsel's submission about "characterization", the victim's perspective is the starting point. The concept of harassment and bullying under the Agreement and at law is one that addresses conduct that is "unwelcome". The Grievor ought to have known that her disrespectful behaviour was unwelcome to her co-workers and unwelcome to the College. The College's message to the Grievor was in essence extremely simple: be respectful of others. That message was legitimate, simple, and repeated over a lengthy period of time. The Grievor understood that message but could not bring herself to accept it. Ms. McClelland was vulnerable as a probationer. She was less educated, less knowledgeable, and lower paid than the Grievor, for whom she provided service. She placated the Grievor as a means of protecting herself and making her working days tolerable. However, she clearly felt the Griever's conduct to be unwelcome, as did Mr. Lall, Ms. Elliot, Ms. Peach, Ms. Crowdis, Ms. Cole, and Ms. Glover. Contrary to Union counsel's submission, the College does not view the Grievor as having been a successful employee. In addition to distinguishing the cases relied upon by Union counsel, Employer counsel cited the following cases in his reply submissions: Janzen v. Platy Enterprises Ltd., [19891 1 S.C.R. 1252 ; Canada (Human Rights Commission) v. Canada (Armed Forces), 1999 CarswellNat 833 (Fed. Ct. - Trial Division.); Re Crenda Aerospace Corp. and IAM, District Lodge 78 (Cox), 2000 CarswellOnt 9084 (Davie); and Bannister v. General Motors of Canada Ltd., 1998 CarswellOnt 3318 (Ont. C.A.) . Decision Arbitrator Foley's award in Re Canada Safeway Limited and UFCW, Local 1518 (McMann), supra, includes the following summary of the arbitral jurisprudence regarding the manner in which an employer is entitled to expect that employees will treat one another at the workplace, and the disciplinary action which may legitimately be taken against errant employees: 60 An employer is entitled to expect that employees at the workplace will treat each other in a respectful and co-operative manner, despite their personality differences or differences in the manner in which they Carry out their job duties. Furthermore, an employer may legitimately take disciplinary action, up to dismissal, against employees who are continually disruptive and treat their co-workers or their supervisors in a harassing, intimidating, offensive, disrespectful, demeaning or other inappropriate manner. As stated in ITT Cannon Canada v. C.A.W., Local 1090 (1990), 15 L.A.C. (4th) 369 (Ont. Arb.), Brown: While working in an industrial endeavour is not a tea-party and a certain amount of give and take among employees can be tolerated, the standard of behaviour which can be expected by any employer of an employee is performance of the duties and responsibilities for which the employee has been hired in a responsible manner 91 and to generally co-operate with other employees having regard to the employer's operational requirements. An individual's conduct which is inimical to that purpose and which causes constant disruption in personal relationships to the extent that production in the department or in the plant is negatively affected, is cause for disciplinary action of a corrective nature; if that procedure does not have the desired effect, then it follows that the employee has shown that he has no interest in continuing the employment relationship which then justifiably may be terminated. 61 Similarly, in Brewers, Warehousing Co. and United Brewers Warehousing Workers' Provincial Board (1982), 6 L.A.C. (3d) 104 (Ont. Arb_), arbitrator Egan stated that, while each employee has his own personality and need not fit any particular mould, the employee may not, however, as he may not in the community at large, allow his personal attitudes to interfere with or upset the normal operation of the workplace. An employer is entitled to expect a degree of team -work and co-operation between employees sufficient to carry out the efficient operation of the undertaking. In that area the personality and attitudes of the employee become a legitimate concern of the employees and of the employer. 62 The arbitral authorities are clear that there comes a time in the employment relationship when an employer, having ... taken appropriate measures to correct an employee's attitude at the workplace and his unsatisfactory relationships with management and his coworkers, is entitled to treat a specific incident of unsatisfactory behaviour as a culminating incident in the employee's work and discipline record and terminate the employee's employment. (Intercontinental Packers Ltd. v. U.F.C.W., Local 472 (1990), 16 L.A.C. (4th) 328 (B.C. Arb) , Chertkow; Pope & Talbot Ltd. v. TWA -Canada, Local I-423 106 L.A.C. (4th) 19 (B.C. Arb.), Chertkow; ITT Canon Ltd., supra; van Kam Freightways Ltd., Award No. A-330/88 Kelleher; United Parcel Service, Award No. A-58/98, Ready) 68 If an employee ... does not believe that a co-worker is performing his job functions to an acceptable standard, the employee should work with, and encourage the co-worker to improve his job performance. But he must do so in a supportive, 92 co-operative, respectful and non -intimidating manner. If the employee's efforts do not have the desired result and the co-worker's job performance does not improve, the employee cannot then take it upon himself to escalate the matter and attempt to brow -beat, harass, intimidate, ridicule or bully the co-worker to improve his job performance. In these circumstances, the employee must be content to refer the matter of the co-worker's job performance to management personnel and allow them to deal with the matter as they see fit. In Re ITT Cannon Canada and C.A.W., Loc. 1090, supra, Arbitrator Brown also noted (at page 381) that "[a]s stated in the Canada Post award [Re Canada Post and C. U.P.W. (Gibson) (1987), 27 L.A.C. (3d) 27 (Swan)], employees are not required to be subjected to verbal injury or that their working life be made miserable by an offensive attitude of another employee". Reference may also be usefully made to the following passage from the award in Re Toronto Transit Commission and ATU, Local 113 (Merolle), supra, in which Arbitrator Shime wrote, in part, as follows (at pp. 444-5): ... Work is a fundamental and important part of a person's life and is a place where a person spends a significant part of his/her life. In Reference re Public Service Employee Relations Act (Alberta) , [1987] 1 S.C.R. 313 (S.C.C.) at p. 368, Chief Justice Dickson made the following statement: Work is one of the most fundamental aspects in a person's life, providing the individual with a means of support and as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being. The importance of work and the time spent working is reflected in various statutory provisions which are intended to enhance and improve the work experience. The enactment of legislation such as Employment Standards Legislation and Health and Safety Legislation are intended to improve the work experience. Human Rights Legislation and the recent anti -violence 93 amendments to the Occupational Health and Safety Act regulate workplace conduct by prohibiting conduct such as discrimination, sexual harassment, workplace violence and harassment. In my view, the regulation of conduct is to promote civility in the workplace. Employees should not have to enter the workplace fearful that they will be harassed, sexually harassed, discriminated against or be subject to threats, abuse or violence. Also there is an emotional and psychological aspect to the workplace which must be considered. The House of Lords in England, in Malik v. Bank of Credit & Commerce International SA (1997), [1998] A.C. 20, [1997] 3 All E.R. 1 (U.K. H.L.), has commented on the duties of an employer as follows: Lord Steyn of Hadly recently noted the changes which have taken place in the employment relationship with far greater duties imposed on the employer [than] in the past, whether by statute or judicial decision to care for the physical, financial and even psychological welfare of the employee. (emphasis added) The duty to care for the psychological welfare of the employee is a manifestation of an employer's responsibility to maintain civility in the workplace. To that, I would add that it is also the responsibility of the union and the employees to maintain a civil workplace. As noted by Arbitrator Cummings in her majority award in Re Sheridan College and OPSEU, Local 245 (Higginson), supra,, the requirement that Ms. Higginson speak respectfully to colleagues and students, and the need for her to change her tone and volume, were clearly communicated to her in November of 2009, when Brenda Jessop, who was her manager at that time, sent her the aforementioned Non -Disciplinary Statement of Expectations, which included the following description of the College's expectations: Sheridan is committed to providing a working and learning environment that is supportive of academic achievement and the dignity, self-esteem and fair treatment of everyone taking part in its activities. The College seeks to create a climate of mutual respect that reinforces opportunity and allows for each person to contribute fully to the development and well-being of the community. Professional communication between employees is vital to creating this climate where business is being conducted in close proximity with staff and students. As a valued long-term employee of Cooperative Education you have a unique influence over the Davis climate and can make a large contribution towards making it a supportive and positive workplace. You have the required knowledge to assist other employees and students in developing their skills. It is very important that your efforts to guide, advise and problem solve are respectful, positive and constructive. This includes including [sic] cooperative and positive interaction, such as modulating the tone and volume level of your conversations. Unfortunately, that clear communication of the College's expectations did not have the desired effect of bringing about a positive change in the Grievor's unacceptable behaviour, as indicated by the following findings made in that award, which upheld the one -day suspension given to the Griever in May of 2011: [The Grievor] spoke to Mr. Lall in a loud and insistent manner and overall treated him without respect. She criticized him for not coming to the employer interview, blamed him for "phony job" postings, led him to the copier and scanned the document, as if he would not know how to do it. She continued to berate him for not agreeing with her view about "phony jobs" posting for some time and in a very loud voice. Ms. Higginson began to talk to Mr. Lall in private, but then continued in the more public space of the supply room where students and other staff would overhear. She spoke so loudly and with such agitation, that two managers were attracted to the room. This conduct towards Mr. Lall occurred over a number of minutes and both upset and embarrassed him. Moreover, it was the very sort of behaviour that Ms. Higginson had been counselled not to repeat in the letter of expectation. 6 24. While we conclude that Ms. Higginson was not insubordinate to Ms. Elliott, Ms. Higginson's behaviour in the supply room was inconsistent with the model that Ms. Higginson and her colleagues should be demonstrating to students. Ms. Higginson works in the career center. As Ms. Elliott testified, staff in the Career Centre should not be leaving the impression that it is acceptable to yell at your work colleagues. In our view, the setting and fair expectation that Ms. Higginson model appropriate employment behaviour were aggravating factors. Having concluded that Ms. Higginson engaged in misconduct, we see no basis to reduce the employer imposed discipline of a one day suspension. Despite receiving that suspension in May of 2011, the Grievor's disrespectful behaviour continued unabated after Mr. Lall was the successful applicant for the position vacated by Mr. Latimer's transfer. In the email that she sent in December of 2011 to Mr. Fairman, who was her manager at that time, Ms. Higginson indicated that she remained hurt and upset that Kuljinder Lall, in her view, "misrepresented what did - and did not - transpire on April 7, 201111_ In that email she also expressed the view that "to -date, the only consideration Kuljinder has shown for my back is to stick a knife in it." In his response to that email, Mr. Fairman advised her that her comments were inappropriate, and reminded her that it was his expectation that she would carry herself in a professional manner, and treat her colleagues, students, and management with respect. Despite receiving that further admonition to treat her colleagues, students, and management with respect, the Grievor continued to treat Mr_ Lall disrespectfully. on Friday March 30, 2012, she rudely told Mr. Lall to "get out" when he stopped by her office to say hello, thereby embarrassing him in front of Ms. Lee. During the following week she accused him of having taken the office that she was supposed to get, and stated that she did not believe him when he denied having done so. She repeated that false accusation to several of their colleagues, and also insensitively stated "Maybe it's karma", or "It's karma", when Mr. Lall's new office proved to be excessively hot with the sun was shining in through the window. On April 16, 2012, she angrily yelled at him over the baffle, loudly asking "Why is Marlene touching my jobs?". Although he attempted to explain the situation, the Grievor continued to vent her anger and frustration by loudly reiterating that she did not want Marlene to touch any of her jobs, that Mr. Lall could have posted a job of his own, and that she did not want him to touch her jobs. Mr. Lall was understandably very upset and embarrassed by that incident, which also upset other employees and disrupted their work. Ms. Cole found the noise generated by the Grievor's outburst to be so excessive that she was unable to concentrate. Ms. Glover was horrified by the inappropriate and uncivilised manner in which the Grievor was speaking, and was grateful that she did not have a student, an employer, or anyone else there with her to hear it. She also felt relieved with Ms. Elliott subsequently contacted her to obtain information about that incident, because she felt that something should have been said but had not done anything about it because she was aware that the Grievor was "very quick with her words", and she did not want to bear the brunt of one of the Grievor's AN verbal attacks. Although some of those incidents, such as the Grievor telling Mr. Lall to "get out", might not warrant a substantial disciplinary response if considered in isolation, taken together they demonstrate an ongoing pattern of aggressive, abusive, disrespectful, and poisonous behaviour on the part of the Grievor towards Mr. Lall. Behaviour of that type is particularly unacceptable in the professional milieu in which it occurred. As indicated by Arbitrator Cummings, that setting and the College's fair expectation that the Grievor model appropriate employment behaviour are aggravating factors. Having regard to all of the circumstances including her previous one -day suspension for similar misconduct in respect of Mr. Lall, I am satisfied that the College had just cause to discipline the Grievor for that unacceptable behaviour. I am also satisfied that her three-day suspension was a reasonable disciplinary response to her ongoing misconduct, consistent with the principle of progressive discipline, which was described as follows by Arbitrator Davie in Re Orenda Aerospace Corp. and IAM, District Lodge 78 (Cox), supra: 42 A significant purpose of discipline is to ensure that employees comply with, or observe the established norms of behaviour in the workplace. Where an employee does not comply with, or observe the established norms of behaviour in the workplace, a corrective approach is first taken to the employee's misbehaviour. The foundation of that corrective approach is that the discipline imposed be progressive. One would have thought that receiving that second disciplinary suspension would have clearly brought home to ME the Grievor the necessity of changing the manner in which she conducted herself, so as to treat Mr. Lail, as well as students and her other colleagues, with respect. However, it unfortunately did not have that effect. Nor did the memo dated September 6, 2012, in which the Dean advised the Grievor: I note that you have previously brought your concerns regarding Kuljinder's performance to the attention of two members of management. In both cases you were advised that Kuljinder's performance was satisfactory and your criticism was unwarranted. It is the exclusive responsibility of management to evaluate employee performance. Any future unwarranted criticism of Kuljinder could be subject to discipline up to and including termination as per article 4.5.2 of the Collective Agreement. In his very able submissions, Union counsel contended that the College did not want to and did not in fact address the underlying issue of the ineffective manner in which the Grievor's colleague Kuljinder Lail was performing his job. However, as indicated in the Dean's memo and confirmed by the evidence adduced in these proceedings, that issue was addressed by two members of management, who both advised Ms. Higginson that Mr. Lall's performance was satisfactory and that her criticism was unwarranted. When the Grievor raised the issue in December of 2011 with Mr. Fairman, who at that time was the Manager of the College's Co-operative Education Program, Mr. Fairman provided the following response: As far as Kuljinder's ability to handle the Mechanical program cluster and his system of executing database transactions, Kuljinder went through a formal hiring process and brings a strong background to the program. Additionally, I approve of Kuljinder's method of using the jobs.sheridan database as it is consistent with the system used by many of the other advisors/job developers within the Co-op Department. I will not be moving Kuljinder from his current portfolio.... The Grievor also raised that issue with Ms. Elliott and repeatedly requested her to transfer Mr. Latimer back into the position held by Mr. Lail. However, Ms. Elliott declined to do so because she did not share the Grievor's negative assessment of Mr. Lail's skills, because she was of the view that the Grievor could work independently from Mr. Lail, and because she was of the view that the Grievor's concern about the way in which Mr. Lail made entries in the database was a minor administrative issue. Although the Grievor had been advised by management that her criticism of Mr. Lail's job performance was unwarranted, he continued to receive disrespectful criticism from her about the manner in which he was performing his job. As indicated above, Mr. Lail provided a credible rationale for doing a number of the things that she criticised. Moreover, even if it were to be assumed, without finding, that the manner in which Mr. Lail performed some aspects of his job was less than satisfactory, that would not justify the disrespectful manner in which the Grievor conveyed her criticism of his performance. In this regard, the above quoted observations that Arbitrator Foley made in paragraph 68 of his award in Re Canada Safeway Limited and UFCW, Local 1518 (McMann), supra, bear repeating: If an employee ... does not believe that a co-worker is performing his job functions to an acceptable standard, the employee should work with, and encourage the co-worker to improve his job performance. But he must 100 do so in a supportive, co-operative, respectful and non -intimidating manner. If the employee's efforts do not have the desired result and the co-worker's job performance does not improve, the employee cannot then take it upon himself to escalate the matter and attempt to brow -beat, harass, intimidate, ridicule or bully the co-worker to improve his job performance. In these circumstances, the employee must be content to refer the matter of the co-worker's job performance to management personnel and allow them to deal with the matter as they see fit. As indicated above, in the spring of 2012 Mr. Lall arranged to work at the Hazel McCallion campus two days a week instead of just one, despite the fact that this resulted in him having a fifty -minute commute instead of just a ten-minute one, because of the legitimate concerns he had about working in close proximity to the Grievor. Those concerns included her propensity to speak loudly and to use inappropriate language, such as loudly referring to students as being "dumb"' and "stupid". When Mr. Lall was speaking with employers on the phone, he understandably found it to be embarrassing and unprofessional to have that kind of noise in the background. He also testified that the aforementioned events of April 16, 2012, were part of the considerations that prompted him to make that inconvenient change, because "it was really tough to work in that environment". In commenting on the difference between working at the Mississauga campus and the Davis campus, the Grievor also stated, "It's a long commute, especially in the evening stuck in the traffic, but at least I was able to get my job done." On July 24, 2013, the Grievor spoke critically to student R about Mr. Lail. She told R that Mr. Lall should be 101 the one talking to him "but as usual he's not here". This critical remark prompted Ms. McClelland to say "Well, it shows on his schedule that he's working at the Hazel McCallion Campus", to which the Griever responded in a derogatory and sneering manner, "Well we know who wrote the schedule don't well. Those disrespectful comments made in the presence of a student caused Ms. McClelland to feel so uncomfortable that she attempted to leave (and ultimately succeeded in doing so by arranging through a text to have Ms. Cole come out to tell her that there was a phone call for her). Ms. Higginson also spoke critically about Mr. ball in the telephone conversation overheard by Ms. McClelland in which the Griever told one of the co-op employers that Mr. Lall "is not here but he usually isn't". The Grievor also frequently criticised Mr. Lall and his performance in conversations with Ms. McClelland. She repeatedly told her that it was Mr. mall's fault that Mr. Latimer had been transferred. She also frequently asserted that Mr. Lall was incompetent in the performance of his work, and that he was not qualified for his hybrid position. She also made disrespectful comments to Ms. McClelland about Mr. Lall not being present on campus when she felt he should be, and questioned several times if he was actually at the other campus as indicated on the schedule. She attempted to persuade Ms. McClelland to file a grievance against Mr. Lall. When Ms. McClelland told the Grievor in June of 2013 that she was not sure that she wanted to file such a grievance, the KIN Grievor told her: "You're either with me or against me. if you're not with me, I'm not going to cover for you anymore and I will file grievances against you." Ms. McClelland was extremely upset by that threat, which made her feel intimidated and pressured. She went home and cried, and did not sleep very well that night. She subsequently told Me. Elliott about it because she remained very upset. Although Ms. Elliott advised her that this was a form of bullying, Ms. McClelland told her that she wanted to keep it "off the record" and did not want to file a formal complaint because she was still on probation. Consequently, the matter was not further explored at that time. Although it remained a legitimate cause of concern for Ms. McClelland, she was unwilling to pursue it at that time because she was "the new kid on the block" who "didn't want to make any trouble or gain the reputation of being a trouble -maker in any way". As indicated above, the Grievor was so distrustful of Mr. Lail that on one occasion she offered to pay for the gas if Ms. McClelland would go to the Hazel McCallion Campus to see if Mr. Lall was actually working there as indicated in his calendar. Although Ms. McClelland declined to do so, requests of that type made her angry, stressed, and resentful for being put in that position. She generally spent a total of between half an hour and an hour and a half per day in conversation with the Grievor about Mr. Lail. This sometimes resulted in Ms. McClelland having to work through her lunch or to stay after the normal end of her workday in order to complete her 103 work. She never asked the Grievor to leave because she did not want to have a confrontation with her. If she disagreed with the Grievor or indicated that she did not want to do something requested by the Grievor, Ms. Higginson would not respond positively and it would often turn into a debate and go back and forth. Since she did not want to have to deal with that every time, she would either be noncommital or agree with Ms. Higginson because it was the easiest way to end the conversation and not have any confrontations with her. The manner in which the Grievor reacted to hearing Ms. McClelland sympathetically ask Mr. Lall about a health problem that his mother was experiencing made Ms. McClelland feel very uncomfortable, and led to her trying not to sound too friendly or nice when she spoke with Mr. Lail in any conversation that might be overheard by the Grievor. Ms. McClelland resented being spoken to in that way by the Grievor, and was so upset and hurt by it that it adversely affected how she felt about coming to work. She also understandably felt resentful and angry when the Grievor put her in the position of having to talk to management about the concerns that had been raised about Ms. Higginson by other employees, and when the Grievor instructed her to "[j]ust say 'yes' or 'no'" in response to management's questions about those concerns. Ms. McClelland was also troubled by the fact that when the Grievor came into her cubicle to discuss Mr. Lail, she would close the door. This also troubled Ms. Crowdis, because 104 when she went to Ms. McClelland's cubicle to talk to her or ask her questions about work-related matters, she often found Ms. McClelland engaged in closed -door discussions with the Grievor. This adversely impacted her work because it made it difficult for Ms. Crowdis to get necessary information from Ms. McClelland. Although Ms. Elliott advised the Grievor through an email dated January 21, 2013, that "bolding sections of your emails is akin to raising your voice for emphasis and you need to be more sensitive to the impact of this practice", Ms. Higginson disregarded that advice and continued to do so by, for example, beginning an email to Mr. Lall on November 20, 2013 with the following bolded sentence: "Please do not amend, or reopen my postings without my prior consultation or permission." That email, which was part of a pattern of disrespectfully critical emails that the Grievor sent to Mr. Lall, was of legitimate concern to him because he sometimes needed to do so in order to protect the interests of his students who were applying for those jobs. The above -quoted "Way... to... freaking... go" email that the Grievor sent to Ms. McClelland at 11:02 p.m. on August 20, 2013, provides another example of disrespectful communication with a co-worker, and clearly indicates how volatile Ms. Higginson could be when one of them did something that displeased her. By December of 2013, the Grievor's ongoing disrespectful conduct towards Mr. Lall had reached the point 105 where he had, in his words, "had enough of it". Consequently, he applied for and obtained a different position. If the Grievor's disrespectful behaviour could have been removed from the equation, he would not have applied for that new job and would have remained in the same job, because he got along well with the faculty in those co-op programs, and because his background of working with internationally trained engineers made it the best cluster of programs for him. His working situation improved after he obtained that new position, because he was no longer receiving criticism from the Grievor and no longer had to deal with her. Mr. Lall and Ms. McClelland were not the only members of the College community who were adversely affected by the Grievor's aggressive, abusive, disrespectful, and poisonous behaviour. Although she had been made aware of the etiquette required at staff meetings, Ms. Higginson nevertheless often rudely and disrespectfully interrupted other speakers, talked over them, raised her voice, and went off on acerbic rants. The offensive way in which she conducted herself at such meetings led to other employees not wanting to attend them. It also resulted in Ms. Crowdis feeling so frustrated and upset about the rude manner in which the Grievor talked over Ms. Simpson while she was attempting to offer ideas and suggestions at a curriculum meeting held in the Fall of 2013, that Ms. Crowdis walked out of the meeting after stating, "That's it. I've had enough. I'm out of here". The Grievor also spoke disrespectfully to and about 106 students, telling them to "shut up" and calling them "dumb", "stupid", and "idiots who can't form a sentence". In the aforementioned second incident involving R, the Grievor uninvitedly joined a conversation between R and Ms. McClelland sometime in August of 2013, and repeatedly asked R to disclose the name of the company from which he had obtained a full-time job, despite R advising her that the paperwork had not yet been completed and that he would tell her after the contract was actually signed. Although the Grievor had legitimate institutional reasons for asking R to provide the name of the company from which he was in the process of obtaining full-time employment, the threatening manner in which she attempted to elicit that information was inappropriate. The Grievor's disrespectful conduct resulted in co-workers not wanting to be located near to her cubicle. It also resulted in two qualified potential applicants for the position vacated by Mr. Lall declining to apply for it because neither of them wanted to work with her. Ms. Peach was also very disturbed by the Grievor's ongoing disparagement of Mr. Lall, and found what she heard on December 16, 2013, to be particularly disturbing. While working in her cubicle, she was disturbed to hear the Grievor say: "[Kuljinder] gave me stupid chocolates. I don't like them, I don't like him, I despise him." She also heard the Grievor loudly complaining that day about the manner in which Mr. Lall had labelled a job posting, and loudly asserting that Mr. Lall was "making up phony statistics". She was also 107 disturbed by the noise generated by the Grievor doing what she described as "furious typing" and "angry typing" on the computer. The Grievor's conduct made Ms. Peach feel uncomfortable, sad, upset, frustrated, unable to do her job, and unable to focus. She left work early that day because she was not being productive, and because she felt that she was sitting in a toxic environment and thought that she needed to leave. On the following day, Ms. Peach requested permission from Ms. Elliott to use a cubicle further away from the Grievor's cubicle, because she was finding it very difficult to work across the hall from the Grievor and Ms. McClelland in that "the amount of non -work related chatter and unpleasant discussion regarding Kuljinder and how he does his job [were] both toxic and unproductive". The grounds for discharge set forth in the Grievor's termination letter include "continuing to behave inappropriately in the workplace", "continuing to engage in bullying behaviour", and "openly referring to students in a derogatory and disrespectful manner". Those grounds have all been duly established by the evidence adduced in these proceedings_ The grounds for discharge also include being "wilfully and flagrantly insubordinate" in her "actions and attitude towards management". Although explicitly refusing to comply with a management directive is one form of insubordination, it is not the only misconduct which falls within the scope of that term. As noted in paragraph 7:3660 M of Brown and Beatty, Canadian Labour Arbitration, supra, "[c]onduct that is threatening, insolent or contemptuous of management may be found to be insubordinate, even if there is no explicit refusal to comply with a directive, where such behaviour involves a resistance to or defiance of the employer's authority". That paragraph also notes that "discharge may be appropriate where it can be said that the employee's conduct, viewed in its totality, is 'sufficiently contemptuous of authority to justify the conclusion that the ongoing employment relationship ... should be terminated'." See also British Columbia Railway v. C.U.T.E., Local 6, supra, at paragraphs 46-53. However, as noted by Arbitrator Moore in Re Southern Railway of British Columbia and I.C.T. U. , Loc. 7, supra, at page 19: ... to be an offence against "symbolic authority" there must be a reasonable and rational basis to conclude that the employer's authority has been challenged in a meaningful way. Moreover, the arbitral jurisprudence does not go so far as to require employees in a mindless and unquestioning manner to silently embrace all of the directions of management. It would be unrealistic to expect employees who have an objection to a proposed course of action not to state their point of view. It may also be counter-productive from the perspective of industrial relations policy and practice, as the supervisor once aware of the employee's view may see some wisdom in the comments and thereby avoid unnecessary conflict and at least would have notice of the employee's objection should the giving of the direction be grieved. The gravamen of any offence in this area is not the stating of the objection but the manner in which the objection is conveyed. Although it was not improper for the Grievor to advise Ms. Elliott of her objection to Ms. Elliott's plan to put Mr. Lall's replacement in a cubicle on the other side of 109 the hall rather than in the cubicle adjacent to hers where Mr. Lall worked, the unduly aggressive manner in which she voiced that objection was reflective of the disrespect that she felt for Ms. Elliott, whom she had previously characterised as being "a liar" and "incompetent", as having reprimanded her for exaggerated transgressions, and as having treated her in a manner that was unfair, discriminatory and harassing in nature. In the circumstances of this case, it is unnecessary to determine whether that constituted insubordination. It suffices for purposes of this award to conclude that it provides yet another example of the disrespectful manner in which the Grievor dealt with colleagues, students, and members of management. Viewed in its totality, the evidence adduced in this case clearly establishes that the Grievor repeatedly engaged in harassing behaviour prohibited by the College's Workplace Harassment Policy, including offensive comments, false accusations, bullying, and other disrespectful behaviour which created a "poisoned environment" for Mr. Lall, Ms. McClelland, and other persons employed by the College. She also openly referred to students in a derogatory and disrespectful manner. Her termination resulted in a significant improvement in the workplace atmosphere. Her former cc -workers who testified in these proceedings indicated that they would feel "anxious", "worried", "scared", and "horrified" if the Grievor was reinstated. Although as noted by Arbitrator MacDowell in Re Tenant Hot-line and Peters and Gittens, supra, at page 144, 110 "'office politics' are always present to a lesser or greater extent in all work groups", and "the personal opinions or prejudices of fellow workers" should not "amount to a veto" of the reinstatement of an employee who has been discharged without just cause, the feelings expressed by those witnesses are indicative of how adversely the Grievor's disrespectful conduct affected their workplace. As indicated by Arbitrator Foley in the above -quoted passage from his award in Re Canada Safeway Limited and UFCW, Local I5I8 (McMann), supra, "an employer may legitimately take disciplinary action, up to dismissal, against employees who are continually disruptive and treat their co-workers or their supervisors in a harassing, intimidating, offensive, disrespectful, demeaning or other inappropriate manner". In the instant case, the Grievor repeatedly engaged in such misconduct, to the detriment of her co-workers and the operation of the College's co-op department. She continued to engage in that misconduct despite being repeatedly advised that it was unacceptable to the College, and despite being given both a one -day and a three-day suspension for it. Although the Grievor's twenty years' seniority is a significant factor to be considered in determining the propriety of her termination, neither it nor the reduced prospects for other employment that may be engendered by her age, warrant the substitution of a lesser penalty for discharge, which was an appropriate disciplinary response to her ongoing misconduct. For the College to have continued to III employ her in the circumstances of this case would have been inconsistent with its obligation under the Agreement to "ensure the workplace is free from bullying/psychological harassment", as defined in Article 4.6.2. It would also have been inconsistent with its obligations under OHSA, and under .its Workplace Harassment Policy. For the foregoing reasons, the grievances are hereby dismissed. DATED at Burlington, Ontario, this 9th day of August, 2016. Robert D. Howe Sole Arbitrator 112