HomeMy WebLinkAboutOliver 16-12-161--awwAlum
Ontario Public Service Employees Union, Local 161
Community Living Tillsonburg
Union
Employer
The grievance of Kelly Oliver dated May 7, 2012
M. V. Natters, Sole Arbitrator
M. Fahrny, Counsel
T. Moore, Advisor
K. Oliver, Grievor
T. Price, Counsel
M. Stefan, Manager, Human Resources
C. Hudson, Director, Adult Services
HEARINGS: June 18, June 27, September 23, October 1,
November 26, 2013; March 27, April 2, April 7,
May 1, May 5, May 12, May 27, June 2, August 26,
September 11, November 4, November 5, December 10,
December 19, 2014; February 4, March 11, April 16,
April 22, May 13, May 29, June 4, June 5, September 28,
November 4, November 11, November 26, December 4,
2015; and March 9, May 25, May 26, 2016
in London, Ontario.
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[ 1 ] This proceeding arises from the grievance of lis. Kelly Oliver dated May 7,
2012. The grievance, in substance, asserts that the grievor was dismissed without
just cause from her employment as a Support Worker with Community Living
Tillsonburg.
[2] The letter of termination dated May 7, 2012 sets out the following three (3)
grounds for the dismissal: the continued harassment of co-worker, Ms. Jan
Stevens, notwithstanding the resolution of a criminal charge of harassment and
contrary to the Employer's request to cease such behavior; the abuse of sick time;
and the bullying and intimidation of other co-workers. The relevant passages of
the letter read°
...........................................................................
Despite the resolution of your criminal charge for harassment,
we are satisfied that you have been pressing and persistent in
harassing Jan Stevens. You have not complied with
Management's requests to stop the behavior.
On January 24, 2012, you left a Doctor's note indicating that
you were totally disabled and unable to work. Your actions
show no medical basis for you being off work. The medical
note indicated you were not waiting for a referral for any tests
or to a Specialist. We believe you have abused your sick time
privilege with our agency and Service Canada. Since being off
work you have been reported in attendance at many social,
union and sport functions. Most recently you put in a request to
attend a Union convention on April 20, 21 and 22, 2012.
You were seen at a Special Olympics event by co-workers. it was
reported that you shared that you had been charged by the police.
You made demeaning comments regarding Jan, and a Manager of
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Community Living. You also threatened to find out who had been
reporting you.
Co-workers have reported that they have not come forward for fear of
repercussions from you. They have expressed that you are a bully and
intimidate co-workers to make sure things are done your way. They
have voiced concern for your reaction towards them on a return to
work.
Based on all of the concerns listed above we are unable to continue
your employment with our agency. We do not condone your actions
which have resulted in our having such a breach of trust that we feel it
cannot be repaired.
97
[3] In closing argument, counsel for the Employer advised that he was not relying on
bullying and intimidation of co-workers as a ground to support the dismissal. Very little
evidence was led with respect to this allegation during the course of the hearing in this
matter. As a consequence, this Award focuses on the allegations of harassment and abuse
of sick time.
[4] The hearing in this matter was lengthy. A total of ten (10) witnesses presented
evidence on behalf of the parties over the course of thirty-three (33) hearing dates. The
evidence, both oral and documentary, was substantial. Additionally, counsel for the
parties required two (2) full days to complete closing argument. It is unnecessary to refer
to all of the evidence and argument in this Award. It has all, however, been considered at
length.
[5] The following individuals gave evidence on behalf of the Employer:
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Jan Stevens - Ms. Stevens commenced work for the Employer in February,
2009 as a permanent casual employee. In that capacity, she was
assigned and called -in to replace other Support Workers who
were absent for reasons such as vacations and illness. Ms.
Stevens served as a replacement at all of the residential Homes
operated by the Employer and worked the day shift, afternoon
shift and night shift, as required. In August, 2009, Ms. Stevens
replaced a full-time employee at the Allan Street Home who
went off work on a one (1) year maternity leave. She worked
full-time hours at this Home for the duration of a one (1) year
contract. The grievor was also employed at Allan Street over
this period. At the end of the aforementioned contract, Ms.
Stevens returned to casual status and again worked at a number
of Homes, as required. Ms. Stevens is married and has a son,
Tanner, and a daughter, Anastasia. She and her family reside in
Tillsonburg;
Dawn Matthews - Ms. Matthews has. been employed by Community Living
Tillsonburg since 1989. She has been a Manager since 2008.
Ms. Matthews currently manages staff at the Lisgar and Queer
Street Homes. She previously managed the grievor at the Allan
Street Home. Ms. Matthews has not directly managed Ms.
Stevens in the past;
Janet Ashkanase - Ms. Ashkanase has been employed by Community Living
Tillsonburg for approximately twenty (20) years. For the past
fifteen (15) years, she has provided supports to people working
at ARC Industries. Ms. Ashkanase worked with the grievor for
approximately three (3) years at the commencement of her
employment. She has never worked with Ms. Stevens. Ms.
Ashkanase was summonsed as a witness by the Employer;
Dana Lester - At the time material to this proceeding, Ms. Lester was a
Constable with the Oxford Detachment of the CPP in
Tillsonburg. In that role, she was primarily responsible for the
investigation of the complaint made to the Police by Ms.
Stevens. Ms. Lester was the Police representative who
communicated with, and who received communications Erom,
Ms. Stevens, IVIS. Oliver and Ms. Hudson;
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Crystal Fehrnnan - Ms. Fehrman has been employed by Community Living
Tillsonburg since 2006. She currently works as a Support
Worker at the John Street Home. Ms. Fehrman has previously
worked with the grievor at the Glendale Street Home. She has
worked with Ms. Stevens occasionally in the past. Ms.
Fehrman is a friend of Ms. Stevens. Ms. Fehrman was also
summonsed as a witness by the Employer; and
Cathy Hudson - Ms. Hudson has been employed by Community Living
Tillsonburg for thirty-one (3 1) years. For the past twenty-three
(23) years, she has served as the Director of Adult Services. In
this position, she is responsible, inter alia, for the Human
Resources Department managed by Ms. Marni Stefan. Ms.
Hudson was actively involved in the events preceding the
grievor's dismissal. While Ms. Hudson initially hired the
grievor, she was never responsible for her direct supervision.
[6] The following individuals gave evidence on behalf of the Union:
Kelly Oliver - Ms. Oliver commenced employment with Community Living
Tillsonburg in early 1992 as a full-time Support Worker 1. She
became a Support Worker 2 in January, 1993. In the latter
position, her responsibilities included charting, banking,
financial matters and medical appointments in respect of the
supported persons under her care. Ms. Oliver has worked at
several of the Homes operated by the Employer. She started at
the Allan Street Home in November 1997 and worked the day
shift while there. Ms. Oliver first met Ms. Stevens in March,
2009. They both worked together at the Allan Street Home in
the one (1) year period commencing August, 2009 during
which Ms. Stevens filled in for the employee off on maternity
leave. Ms. Oliver has a diploma from St. Clair College as a
Developmental Service Worker. She graduated from the
Chatham Campus in 1991. Ms. Oliver also served as a Union
Steward for a period of approximately ten (10) years. She was
unsure if she held such a position at the time material to this
case. Ms. Oliver, who is single, was forty-five (45) years of
age when she presented evidence in this case. She resides in
Tillsonburg;
2
Tamm Moore - Ms. Moore commenced employment with Community Living
Tillsonburg in 1992. For the past four (4) years, she has
worked as a Support Worker at the Potters Road Home. Ms.
Moore has been a Union Steward for approximately ten (10)
years and served as Vice -President of the Local between 2005
and 2012. Ms. Moore started working with the grievor in
February, 1992 at the 26t' Concession Home. They became
friends shortly thereafter. Ms. Moore and the grievor have
remained friends over the intervening years. They talk daily
and socialize frequently. The grievor is actively involved with
Ms. Moore's family and helps her with her two (2) children,
Jordan and Rebecca. Ms. Moore and the grievor have also
vacationed together. Ms. Moore knows, and has socialized
with, Ms. Stevens;
Rain Loftus - Mr. Loftus has been an QPSEU Staff Representative for seven
(7) years. He does not normally represent employees in Local
161. He was asked to represent the grievor in this instance, as
Mr. Tom Watson, the Staff Representative charged with
servicing Local 161, was already representing Ms. Stevens; and
Ms. Mary diver - Ms. Oliver is the mother of the grievor.
[7] Community Living Tillsonburg provides supports to individuals with
developmental and intellectual disabilities. It operates a number of Homes at
which supported persons reside. During the course of the hearing, reference was
made to several of these Homes including Allan Street, Potters Road, Glendale
Street, John Street, Lisgar Street, Queen Street and 26b Concession. The
Employer also has offices on Brock Street and at the Livingston Centre. In
addition to the residential program, staff of the Employer provide supports to
persons living independently in the community (Supportive Independent Living)
and to individuals working at ARC Industries.
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[S] Before turning to a more detailed review of the evidence, it will be helpful to
briefly set out the factual and chronological context of the events material to this
case. The following is a summary of the relevant facts:
i) As mentioned previously, the grievor and Ms. Stevens worked
together at Allan Street for a one (1) year period commencing in
early August, 2009. Ms. Stevens' contract at the aforementioned
Home finished at or about the end of July, 2010. Thereafter, these
two (2) employees only worked together if Ms. Stevens was
assigned or called -in, as a casual employee, to work at a Home
staffed by the grievor on a full -tune basis;
ii) Following the end of Ms. Stevens' contract at Allan Street, a
number of events occurred which led her to file a complaint with
the Employer that she was being harassed by the grievor. Ms.
Hudson first met with Ms. Stevens about the complaint on October
M. 2011. Subsequent meetings were held on October 27,
November 11, December 13 and December 19, 2011 with respect
to same. Ms. Stevens also contacted Ms. Hudson by telephone on
numerous occasions complaining about the griever's behavior,
conduct and actions;
iii) Ms. Hudson initially contacted the grievor by telephone on
October 21, 2011 to advise her of Ms. Stevens' complaint. She
subsequently met with the grievor on October 24, 2011, following
which two (2) letters of the same date were given to the grievor.
The first briefly detailed Ms. Stevens' claim of harassment and
advised the grievor she was no longer to have any scheduled
contact with Ms. Stevens at work. It further imposed a
requirement that the grievor attend mandatory counselling. The
second letter was headed "LETTER OF CONCERN'. It instructed
the grievor not to go to any of the Employer's Homes unless she
was on working hours. More specifically, she was told not to visit
staff working at the Uomes during her non -working hours. Ms.
Hudson subsequently met with the grievor about the harassment
complaint on December 6 and December 20, 2011. A further
meeting was held on January 17, 2012 at which the grievor was
represented by Mr. Loftus;
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iv) The Employer issued a workplace Safety Plan pertaining to Ms.
Stevens on November 14, 2011. A further Safety Plan was issued
on February 22, 2012;
v) Ms. Stevens first contacted Constable Lester by telephone about
her complaint on October 19, 2011. She met with Constable
Lester that same day. Further meetings occurred on October 20,
November 12, December 30, 2011 and January 10, 2012.
Additionally, Ms. Stevens communicated further concerns to
Constable Lester by telephone on October 19, November 7 and
November 29, 2011;
vi) Constable Lester met with the grievor about Ms. Stevens'
complaints on October 20 and October 27, 2011. She also
communicated with her by telephone on November 22, 2011;
vii) Throughout this period, Constable Lester and Ms. Hudson spoke
by telephone about the complaint, related developments and
workplace safety;
viii) The grievor was charged on January 22, 2012 with Criminal
Harassment contrary to section 264(2)(c)(i) of the Criminal Code
of Canada. She was released on the following terms: she abstain
from communicating directly or indirectly with Ms. Stevens, her
husband and children, and Ms. Rebecca Roden; she abstain from
going to any residence or known place of employment of Ms.
Stevens; and she surrender her firearms possession -acquisition
licence. Ms. Roden, mentioned above, is an employee of
Community Living Tillsonburg and was a former friend of the
grievor. Constable Lester advised that Ms. Roden provided her
with a statement on January 11, 2012. The Employer issued a
workplace Safety Plan with respect to this employee on February
2, 2012;
ix) Subsequent to the charge, the grievor retained Mr. Michael M.
Lerner, a lawyer in London, Ontario to represent her;
x) The grievor went off work sick effective January 24, 2012. She
never returned to work prior to her ultimate termination. Medical
notes from her family physician, Dr. R.J. Wahby, dated January
M
24, February 7, March S, April 2 and May 1, 2012 were provided
to the Employer in support of the absence. A further Physician's
Statement completed by Dr. Wahby on May 13, 2012, in aid of an
application for LTD benefits, was filed as an exhibit in this
proceeding. The grievor received sick leave under the collective
agreement for a period of time. She subsequently got E1 sick
benefits through Service Canada;
xi) The grievor attended at the Ontario Court of Justice in Woodstock,
Ontario on April 17, 2012. At that time, as a consequence of prior
discussions between Mr. Lerner and the Crown Attorney, the
grievor entered into a Recognizance To Keep The Peace (Peace
Bond) for a period of twelve (12) months under the provisions of
section 810 of the Crim nal Code of Canada. The conditions set
out therein read:
-"KEEP THE PEACE AND BE OF GOOD BEHAVIOR
ESPECIALLY TOWARDS JAN STEVENS
NO CONTACT, COMMUNICATION OR ASSOCIATION
WITH JAN STEVENS, TERRY STEVENS, TANNER
STEVENS AND ANASTASIA STEVENS EXCEPT AS
ALLOWED BY YOUR PLACE OF WORK
NO (sic.) TO BE WITHIN TWO BLOCKS OF ANY
RESIDENCE OF JAN STEVENS WHICH AT THIS TIME
IS..... ,.., TILLSONBURG."
(address omitted)
xii) The grievor was dismissed by the Employer at a meeting held on
May 7, 2012. The grievor, Ms. Moore, Mr. Loftus, Ms. Hudson
and Ms. Stefan were in attendance at the meeting. The instant
grievance was prepared and filed shortly after the meeting.
[9] The grievor and Ms. Stevens became co-workers on a full-time basis in early
.august, 2009 when the latter connnenced work at the Allan Street Home under the one
(1) year contract previously mentioned. It is apparent from the evidence that they worked
well together and that they each respected the other's work ethic. Ms. Stevens described
WE
the grievor as a hard worker and a person who set a high standard for her work. She
observed that the grievor was a "giver" with respect to the persons she supported.. The
grievor testified that when she and Ms. Stevens were together they "worked like
clockwork". She described Ms. Stevens as an excellent worker who got along well with
both the staff team and the persons being supported. In her view, Ms. Stevens was a
"team player" who was driven to perforin as best she could. This, in part, led the grievor
to refer to Ms. Stevens as "Super Jan". Indeed, the grievor made a cape for her with
those words inscribed on the back. Ms. Stevens agreed that the grievor did this as a joke.
She noted that, on several occasions, the grievor told her she was a great worker and an
amazing person and that she looked up to her and put her on a pedestal.
[ 101 It is common ground that the working relationship described above transitioned
into a close personal friendship within a matter of a few months. This transition is clearly
established on the following evidence:
i) The grievor and Ms. Stevens started to engage in a lot of texting
throughout the course of the entire day;
ii) A routine developed on Thursdays, when they were working together,
where the grievor would stay on beyond the end of her shift to read
newspaper flyers and watch television with Ms. Stevens for an hour or
two (2);
iii) The grievor and Ms. Stevens discussed and shared issues of an extremely
personal nature. Their discussions focused on matters that had not been
disclosed to other co-workers or to their closest friends;
iv) The grievor and Ms. Stevens started to have coffee together outside of
working hours. The grievor stated that this occurred most often at her
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house. Ms. Stevens estimated that this type of social get-together took
place about once a month. On other occasions, the grievor would bring a
coffee for Ms. Stevens if they were going to be working together at the
Allan Street Dome or might, on her own initiative, drop off a coffee at
Ms. Stevens' home. On the latter occasions, the grievor would visit with
her friend outside of the home on either the driveway or front porch. A
dispute exists as to whether the grievor ever entered into Ms. Stevens'
home beyond the entry way. It is unnecessary to resolve this conflict in
the evidence;
v) On November 27, 2009, the grievor became emotionally distraught at the
cemetery where her grandmother was being buried. Her father is also
buried there. The grievor subsequently emailed Ms. Stevens to tell her
what had occurred. Ms. Stevens' email response reads:
"Kelly,
I'm sorry about not texting you last night. I ended up in bed before the
kids.' I know it is hard. If at any point you want to return to the cemetery
to visit your father just say the word and I will go with you for support.
What time are you leaving today? I thought maybe I could make a detour
with coffee in hand on my way to St. Thomas. Sounds like you could use
a real hug not one over the phone. My phone is charging for a bit, but
will text you later to see if you are up for it. I will keep my thoughts of
you very close today.
Jan;"
vi) At Christmas 2009, the grievor gave Ms. Stevens a gift for her and her
family. While Ms. Stevens did not reciprocate with a gift, she did give
the grievor a Christmas card. She wrote the following note on the card:
"I am very fortunate to have a person like you in my life. You are
special? Looking forward to many memorable moments for years to
come."
Ms. Stevens signed the card with the words, "Your friend Jan";
vii) The grievor while off work attended a Special Olympics basketball
tournament in St. Thomas with Ms. Stevens in or around January, 2010.
Ms. Stevens was supporting a player in the tournament that day. As it
was the first time Ms. Stevens had supported this person at such an event,
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the grievor volunteered to go with her. Both travelled to the tournament
in the grievor's car;
viii) In January or February of 2010, the grievor started to attend at the arena
in Tillsonburg to watch Ms. Stevens' son play hockey. She also travelled
to his away games on occasion; and
ix) The grievor gave Ms. Stevens a card and a fridge magnet for her birthday
on April 3, 2010. The following month, Ms. Stevens gave the grievor a
card, a bookmarker and a gift certificate for a pedicure for her birthday
on May 1, 2010. Ms. Stevens again signed the card with the words,
"Your friend ran."
[11] The grievor agreed that she and Ms. Stevens had their "ups and downs" during this
period of their friendship. In her words, there were "good times and not so good times".
One of the latter times occurred in March, 2010 after the grievor had won two (2) tickets
to a Buffalo Sabres hockey game at a Tillsonburg Minor Hockey raffle. The game was
scheduled to be played on Wednesday, March 10, 2010 in Buffalo. The grievor invited
Ms. Stevens to go with her to the game. At this point, their respective recollections
diverge.
[12] The grievor testified that Ms. Stevens said she would accompany her to the hockey
game. The grievor stated that, as they were both scheduled to work on March 10th, she
took a vacation day and Ms. Stevens switched shifts with a co-worker in order to free up
the day. It was her evidence that she asked Ms. Stevens on Sunday, March 7 h if she was
still planning to attend the game and that she received an affirmative response. The
grievor recalled that she received a text from Ms. Stevens during the morning of March
10th which advised that Ms. Stevens was going to Ingersoll to visit her cousin and that the
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message made no mention of the game. She subsequently assumed that IVIS. Stevens was
not going to go to the hockey game when she heard nothing further from her by noon on
that day. The grievor did not then contact IVIS. Stevens. Father, she left on her own early
in the afternoon for Buffalo. The grievor testified she was so upset by this sequence of
events that she turned around at Fort Erie and returned home without seeing the game.
[13] Ms. Stevens testified that she did not give the grievor an answer "one way or the
other" as to whether she would attend the hockey game. Her recall was that she did not
commit herself to go. In cross-examination, she said she may have told the grievor "it
was passible I could go". Ms. Stevens added that she did not want to go to the game but
found it hard to say no. She did not remember making a change to her work schedule so
as to allow her to go to the game. IVIS. Stevens agreed that she informed the grievor on
the morning of March 1 O`h that she would not be attending the game.
[ 14] It was the grievor's evidence that she received a text from Ms. Stevens first thing
on the morning of March 11, 2010 asking whether she would be interested in having a
coffee with her. Ms. Stevens subsequently brought a coffee to the grievor's house. The
grievor stated that during the ensuing discussion she told Ms. Stevens that she was upset
at having been "stood up" for the hockey game. She recalled that Ms. Stevens then
became upset and explained that she could not bring herself to tell the grievor she could
not afford to go to the game. At that juncture, the grievor infortned her the ticket was
free and that Ms. Stevens was not expected to pay for it. The grievor asserted that she
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accepted Ms. Stevens' explanation. She observed that Ms. Stevens was still upset when
she was about to leave and testified that she then hugged Ms. Stevens and said everything
would be okay.
[15] The above referenced incident was revisited a few weeks later when the grievor
and Ms. Stevens were taking some supported individuals to Woodstock in a van. At one
point, when they stopped at a park, the grievor started a conversation about what had
occurred on March 10, 2010. The conversation continued on their return to the van. The
grievor recalled that Ms. Stevens became upset and said she did not want to talk about it
further. She advised that Ms. Stevens later apologized for becoming upset. It was the
grievor's evidence that, ultimately, they both agreed that at some point they would do
something together to make up for what had occurred on March 10"'
[16] Towards the end of leis. Stevens' contract, she and the grievor had several
conversations about how their relationship would change once Ms. Stevens was no longer
working full-time hours at the Allan Street Home, It is apparent that they both realized
they would not see as much of each other after. they ceased working together on a daily
basis. On the evidence, I am satisfied Ms. Stevens was prepared to continue the
friendship on the understanding that she and the grievor would spend less time together
than before. I also accept that the possibility of change to the friendship caused the
grievor some real concern. She acknowledged that the transition would be difficult for
her, as she and Ms. Stevens had become very close. The grievor told Ms. Stevens about a
15
similar situation she had experienced previously with a co-worker who became a good
friend. In that instance, it tools the grievor about a year to get over it after that person's
contract ended. There is no doubt that the grievor is the type of person who considers
friends to be a very important part of her life. The issue as to the nature of her friendship
with Ms. Stevens going forward was clearly not resolved as of the end of the latter's
contract at the beginning of August 2010.
[17] In the period from about August 1, 2010 to August 20, 2011, the grievor and IVIS.
Stevens communicated extensively by email, facebook messaging and texting. A
substantial volume of these communications were addressed by both counsel during the
presentation of their respective cases. It is unnecessary to reference each and every
communication relied on. The exchanges are important, however, as they evidence the
change in the nature of the grievor's friendship with Ms. Stevens following the end of the
Allan Street contract.
[18] The following ernails and facebook communications are relevant to the resolution
of this matter. They are referenced herein in chronological order.
[ 19] On September 3, 2010, the grievor sent a lengthy email to IVIS. Stevens. The
grievor, apparently, had a difficult time with a traumatic experience related to the
recurrence of feelings from a past episode. In the email, she accused Ms. Stevens of
ignoring her cry for help. She also expressed a sense of Jealousy that his. Stevens had
done a number ofthings with other friends and co-workers. The grievor resented the fact
that Ms. Stevens had chosen not to do things with her despite being invited to do so on
several occasions. On a fair reading, the email has both an emotional and angry tone.
The grievor acknowledged in her evidence that she was upset when she wrote it. From
her perspective, Ms. Stevens exhibited a pattern of avoidance, in the sense she would not
respond to invitations extended to her.
[20] 1 note that the above email is dated approximately one (1) month after the end of
the Allan Street contract. It clearly demonstrates that the grievor was reacting negatively
to the change occurring in her relationship with Ms. Stevens. The grievor testified,
however, that at this point she wanted to continue the friendship "as the good outweighed
the bad". It did not occur to her that Ms. Stevens may have been trying to withdraw from
the friendship and was sending a message to that effect. The grievor advised that she was
satisfied with the state of their friendship as of September, 2010.
[21] 4n March 18, 2011, the grievor sent a facebook message to Ms. Stevens inviting
her to a play in Toronto. Ms. Stevens told the grievor that she would have to pass on the
invitation, as her daughter had a birthday party and it was her husband's last day off
before returning to work. Ms. Stevens, in effect, declined the invitation as she wanted to
spend the day with her family. She testified that she was trying to be polite and civil to
the grievor, as they still had to work together on occasion.
[22] On March 24, 2011, the grievor sent a facebook message to Ms. Stevens inviting
her to a dinner at The Keg Restaurant in Enid -April, as both of their birthdays were
17
approaching. Ms. Stevens stated that she did not respond to the invite, as she was
attempting to distance herself from the grievor. She agreed that the grievor was upset by
her failure to respond. The grievor testified that Ms. Stevens never gave her a reason for
not going to dinner.
[23] On April 3, 2011, the grievor sent a facebook message to Ms. Stevens wherein she
alluded to a simple birthday dinner invitation causing tension in their friendship. The
message also contained the following continent:
" ..................It really is not easy anymore not being needed
or wanted. Mostly glad the end is closer than the beginning.
Things seem to be getting more complicated and T keep
screwing up. Just wish it would all stop ...........................
The grievor denied that this convnent was a veiled threat of suicide and that she was
trying to manipulate Ms. Stevens into responding to her. On April 3, 2011, which was
Ms. Stevens' birthday, the grievor dropped off a gift for her on.her front porch. The gift
was a passport folder and keychain which she had purchased from a Coach outlet in
Florida.
[24] On April S, 2011, the grievor sent a facebook message to Ms. Stevens saying she
was glad they had an opportunity to chat. The chat occurred at the Tillson Street Home
earlier that day. On that occasion the grievor, who was not working, brought a coffee for
Ms. Stevens while the latter was on her shift. The grievor did not inform Ms. Stevens in
advance that she was coming. She stayed at the Home talking with Ms. Stevens for
18
approximately forty-five (45) minutes. The grievor denied that she forced herself on FIs.
Stevens in terms of this visit.
[25] On April 12, 2011, the grievor sent a facebook message to Ms. Stevens asking her
if she wanted to have a coffee with her on the morning of April 13'h. Ms. Stevens
responded that she could not because of her work schedule and a tournament her daughter
was involved in.
[26] The grievor emailed Ms. Stevenson April 14, 2011 in which she referenced the
prior invitation to have dinner at The Keg. The email reads, in part.
"Nave you ever been to the point in your life where you are
completely physically and emotionally drained. Well that's
where I'm at right now. I no longer have the strength within
me to care anymore. The last several weeks have been horrible
experience. One that I would not wish upon anyone. All
because I asked a friend out to dinner. A year ago there was an
unfortunate situation where my friend was not able to take part
in a road trip. After that situation I recall my friend agreeing to
go out for dinner sometime in the future. I promised myself
that I would not pressure my friend about this. As time passes
there have been some ups and downs regarding ideas of things
that we could do that would be fun for my friend and her
family. All of which were ignored causing some tension.
Leaving me feeling horrible once again. After some discussion
I once again felt there was hope in my future to do something
with my friend other than coffee. So a year goes by I finally
make the decision to follow through on a previous
conversation. I send my friend an email with the suggestion of
going out to dinner. Just to be ignored once again. I start
thinking once again. WHY? Then I start to blame myself to
the point where I come forth and apologize for my behavior and
beg for forgiveness. But really why should I. And why should
I be so hard on myself. I simply asked a friend to go out to
dinner. And yet I continue to try and make things right.
19
5�
............................................................................
The grievor also complained in the email that Ms. Stevens was ignoring and not
supporting her at a time when another friend's sister had passed away. In cross-
examination, the grievor disagreed that IVIS. Stevens was trying to distance herself from
her as she was no longer interested in maintaining the friendship.
[27] On April 21, 2011, Ms. Stevens emailed the grievor asking her whether she was
able to get together for a chat and coffee on April 29th. That date was later cancelled and
the two subsequently got together at the grievor's home on May 3, 2011. During their
discussion, it is clear that Ms. Stevens expressed some concern about the extent to which
the grievor attended at her childrens' hockey games. In effect, Ms. Stevens told the
grievor that she attended more of the games than her husband did and that she wished, at
times, it was only the family who attended. At this juncture, Ms. Stevens did not ask the
grievor to refrain from attending games for the upcoming 2011-2012 season. She
described the tension she felt in the following terms: "We were no longer working
together and Kelly kept trying to insert herself into my life outside of work, as well as at
work". Ms. Stevens testified that in her interactions with the grievor, she was trying to be
polite and to not hurt her feelings. She was nevertheless frustrated at the time, as she
perceived that nothing she said was actually being heard by the grievor. It was the
grievor's evidence that she found Ms. Stevens remarks to be hurtful and that she was
upset by them. The grievor testified that, as of May 3, 2011, she thought they were still
20
friends, albeit there was some tension existing between them. She did not believe that
Ms. Stevens was then backing away from the friendship.
[28] The grievor forwarded an email to Ms. Stevens following the above discussion.
The grievor advised Ms. Stevens therein that she was very hurt by what Ms. Stevens had
said about her watching the hockey games. After saying a number of complimentary
things about Ms. Stevens, the grievor stated that she wished the friendship could return to
what it was before. This latter point is captured by the following excerpt from the email:
"I do think that the friendship we have is pretty unique and it
truly is something that I would like to be the way it was fan and
stress free. I believe if we could work the amount of hours we
did together and never have a hard time doing so. We should
be able to make a friendship work. I know that I'm the one
who has created the tensions we have had. I truly ant sorry. I
have said this before but I really want my friend back. The one
that thought I was special and important."
[29] The grievor sent a number of facebook messages to Ms. Stevens in the period May
16 to May 25, 2011. It seems on the evidence that Ms. Stevens did not respond to many
of these messages. This led the grievor to forward the following facebook message to
Ms. Stevens on May 26th:
"Jan, I'm really not sure why you are not responding to any of
my msgs. You know I do not like it and frankly it snakes me
feel sick with worry. I want to know you really are OK...."
Ms. Stevens responded to the grievor on the following day. She informed the grievor that
she was "overwhelmed" herself and was simply concentrating "on getting through the
21
day". In her words, she did not have anything to give and just needed "to work it
through".
[301 The next facebook message of import is one sent by Ms. Stevens to the grievor on
June 21, 2011. It reads:
"Hey. Just wanted to let you know I will still email. Just
preoccupied with my back at the moment. Also not sure if you
have texted, but my phone has been doinked since Friday and I
haven't been to Rogers to get it looked at. won't receive or
send texts, didn't want you to think I was a total bitch and
ignoring you."
The grievor testified that following the May 3rd discussion, Ms. Stevens said that she
would express herself more fully in an email. As of June 21 ", Ms. Stevens had not done
so. At that time, the grievor was frustrated by the lack of any response. She interpreted
the above facebook message as meaning that Ms. Stevens still intended to communicate
with her by email concerning the state of their friendship. Ms. Stevens testified that she
was simply referring to her ability to email in general and that she was not promising a
specific email response. It was her evidence that, as of June 21, 2011, the relationship
with the grievor was "not completely done". Ms. Stevens observed that she still had to
work with the grievor and did not want to be on her bad side anymore than she had to be.
[3 1] On July 7 and July 9, 2011, the grievor asked Ms. Stevens through facebook if she
wanted to have a coffee. Ms. Stevens did not respond to either request. lifter a third
inquiry from the grievor, she did respond that everything was fine and that she had been
working all week. Ms. Stevens testified that she responded on this latter occasion
22
because she and the grievor had to continue to work together from time to time. I note
that Ms. Stevens was also not routinely responding in this period to tuts received from
the grievor. Between July 12 and July 16, 2011, the grievor sent ten (10) texts to Ms.
Stevens. Ms. Stevens replied only once.
[32] On July 17, 2011, the grievor sent two (2) facebook messages to Ms. Stevens. In
the first message, the grievor told Ms. Stevens that she was experiencing tension as a
consequence of the latter not forwarding the email promised after the May P discussion.
The grievor felt that Ms. Stevens was "controlling" their friendship by not sending the
email. The grievor further believed that Ms. Stevens was being "mentally abusive"
towards her, as she knew she was upsetting her by not responding. The grievor described
herself in this message as "a Fup all the way round". She added that she hated herself for
the way she was and wished she didn't exist.
[33] The second facebook message sent by the grievor on July 17th reads:
"Make sure you let everyone know that I'm not who they think
I am. I'm just a stupid fucked up, leo good for nothing horrible
person. And not worth knowing. No sense hiding it anymore.
People need to know there's more bad than good in me. I hate
what I've done. I hate who I am. I hate living this way. I want
it all gone."
[34] Mr. Stevens responded to the above messages in the early morning of July 18,
2011 in the following fashion:
"Enough already. Do you not realize how much of a put down
that is to me? And yes you are right—I've often told you not to
apologize for how you feel, but I would hope you understand
23
the effect of some of the things you say. I'm tired of the put
downs both of me and yourself. You are well aware that I had a
close co --worker end her life and everytime you make comments
along these lines my stomach goes in knots. You have accused
me of playing games, being heartless, controlling, abusive and
now the type of person who would enjoy spreading the word..
Of course you always follow it up with the fact that you respect
me. That does NOT make it all better and erase the hurtful
words. I have tried to hold back because I did not want to hurt
you. I'm hoping you will eventually see that. You have said I
want to hold onto the tension, When I get pushed too far I push
away. I'm not holding onto it..It is just there. I have never
wanted to be on a pedestal or be held responsible for someone's
happiness and have made that abundantly clear. I will not
continue this way."
Ms. Stevens stated that the grievor knew she was close to a former co-worker who killed
herself. It was her evidence that she feared the grievor would do the same thing when she
made the type of comments found in the July 17 th messages. Ms. Stevens added that she
had no fear at this time of physical harm from the grievor. The grievor denied that she
was trying to conjure up memories of Ms. Stevens' co-worker. She maintained that she
still did not think her friendship was over at this juncture. The grievor did acknowledge,
however, that Ms. Stevens may have been "partly" pulling away from the friendship.
[35] On August 5, 2011, the grievor sent a facebook message to Ms. Stevens in which
she complained about the adverse effects of medication she had been taking in the prior
three (3) month period. She told Ms. Stevens therein that she was not using this as an
excuse for what had happened in their relationship. The message concludes as follows
" .................Honestly if I could eliminate the last few
months from my life I would. I know at this point I have not
24
proven anything. But I really would like a fresh start with you
my friend. I miss you and luv you lots Kel."
[36] It is apparent on all of the evidence that the grievor and Ms. Stevens texted each
other on a substantial number of occasions over the course of their friendship. A series of
nine (9) text messages from the grievor to Ms. Stevens were filed as exhibit # 17 in this
proceeding. Ms. Stevens believed the messages were in chronological order. The grievor
stated that she did not know if the texts were in sequence. Ms. Stevens was of the
opinion that the text messages were sent in the Spring of 2011, whereas the grievor
claimed that one (1 ) of the later messages was sent in July, 2011. This series of text
messages does not disclose Ms. Stevens' side of the several communications.
[37] The relevant text messages from exhibit #17 read:
"Text # 1
Hey Jan Don't worry this will be the last correspondence you
will have from nye. You see I'm not completely stupid.
Persistent Yes. I get what your saying and I see the signs. So
the trophy goes to you. YOU WIN. You can call it one of the
finer moments in your life. A real success story. Don't worry
about the things you have shared. I won't be around to tell.
Also don't worry about work I won't be there either. If I knew
how difficult life was going to be I would have gotten out
earlier. And I wouldn't have wasted my time making the
efforts I have. Since they don't count for anything anyway.
From the one who never matter (sic.).
Text #2
Here I thought things in my life were starting to look better.
Had one thing to eheck off my lista Getting any friend back. I
have tried every way I can think of. Nothing seems to work. I
can't mentally and physically take anymore. I've done enough
time for nay crime. I guess that's not good enough. I would
25
have done anything to make it right. Always know that you
were loved. And all that went wrong was my fault. Carrying
has just got the best of me.
Text #3
Hurt like hell not to talk to you last nt. Sure seems you don't
care at all. Having a hard time thinking of a way to grove on.
So I will try and hang in a little bit longer to finish what I need
to do and then I will be gone for good.
...........................................................................
Text #5
And times like this. I wish I didn't exist. The emotional stress
affects me deeply. And truly I don't think my existence matters
anyway. This is something that has always been in my mind.
And very strong at times. This part of my msg didn't go
through last nt.
Text #9
You have always misread my messages when I said I won't be
around. This time I'm not rum-iing. I'm done. I'm going. It's
not like my existence matters anyway. "you're all better off
without me. Remember you were loved. At least you will be
around to explain why I had to go.
[3 S] The grievor maintained that she was not speaking of suicide or self harm in the
above-cited text messages. The grievor denied that she knew Ms. Stevens would
perceive the communications as such a threat. It was her evidence that she was
attempting to convey an intent to leave her job with Community Living Tillsonburg and
to move out of the community, The grievor additionally denied that FIs.. Stevens sent
Ms. Foden to her house to check on her well-being, as claimed by lis. Stevens. She
asserted that Ms. Roden never attended at her house for this purpose.
[39] Ms. Stevens testified that she saved the above text messages, and did not delete
there, to remind herself why she wanted to Deep a distance from the grievor and also why
she should not re-engage with her.
[40] An incident of some significance occurred on or about August 20, 2011 at the
Potters Road Home. Ms. Stevens stated that she started her shift at that location at either
11:00 p.m. or 11:30 p.m. that day and was scheduled to work until 8:30 a.m. or 9:00 a.m.
the following morning. It was the grievor's evidence that Ms. Stevens started work at
about 9:00 p.m. Ms. Stevens was scheduled to work alone on this shift. The grievor was
not working at the time of the incident.
[41] Ms. Stevens testified that the grievor texted her a few times and said that she
wanted to -come and talk to her at the Potters Road Dome. IIs. Stevens advised that she
agreed to converse with the grievor, as she believed the grievor would show up at the
Home even if told not to come. It was her belief that the grievor was upset, as she was
not communicating with the grievor as frequently as before. Oils. Stevens felt that the
conversation would give her an opportunity to make it clear to the grievor that she
wanted her to leave her and her family alone. Ms. Stevens recalled that the grievor
arrived at the Potters Load Home at some point between 2:00 a.m. and 3:00 a.m.
[42] The grievor testified that she sent a text message to Ms. Stevens at 7:46 p.m.
advising that she would drop off a coffee for Ms. Stevens at the Potters road Dome. She
recalled that Ms. Stevens did not respond to the text and that she, therefore, assumed it
27
was okay to share a coffee with her at the Home. The grievor advised that, in the pasty
Ms. Stevens had responded if she did not want a coffee brought to her work location. It
was the grievor's evidence that she arrived at the Potters Road Home at 11:19 p.m, and
that she informed Ms. Stevens of her arrival by way of another text. The grievor
indicated that she was able to provide precise times with respect to both her first text
message and her arrival, as she had subsequently forwarded the text messages to her
email address.
[43] Ms. Stevens stated that she did not know how the grievor knew she was working at
the Potters Road Hone on August 20, 2011. She insisted that she did not communicate
that fact to the grievor. The grievor, in contrast, maintained that Ms. Stevens did tell her
she would be working at the Dome on the evening in question.
[44] It is agreed that Ms. Stevens and the grievor stood on the porch right outside of the
front door to the Home and had a conversation there for between thirty (3 0) and forty
(40) minutes. On a couple of occasions, Ms. Stevens went inside to check on the
individuals being supported. The grievor remained outside throughout the exchange.
[45] Ms. Stevens recalled that the grievor was upset and asked her to clarify several
matters, including the following: were they still friends; why had IVIS. Stevens cut off
contact with her; and why did Ms. Stevens have an issue with her leaving gifts for Ms.
Stevens' children. It was Ms. Stevens' evidence that she told the grievor they were no
longer friends and that she had "pushed way too hard" and had been unwilling to accept
28
Ms. Stevens' request to "back oft". Ms. Stevens expressed the further opinion that the
grievor was using her children to get to her. She also informed the grievor that she had
not given her children the gift certificates for the cinema which the grievor had
previously left for them. Ms. Stevens asserted that, in effect, she asked the grievor to
cease contact with her and her family. She stated that she also expressed the hope that
she and the grievor could still work effectively together, if scheduled to work at the same
Home. Lastly, FIs. Stevens claimed that she suggested the grievor seek counselling if she
had "issues". Ms. Stevens described her comments as "pretty harsh". In her words, she
was "straight to the point". It was her impression that the grievor did not like or
appreciate the message being conveyed.
[46] IIs. Stevens testified that the grievor was not calm during the discussion. Father,
she was upset and was in tears for part of the exchange. Ms. Stevens acknowledged that
she raised her voice during the course of their conversation.
[471 The grievor recalled that the exchange started off as "normal chit-chat". It was her
recollection that, when she was ready to leave, she asked Ms. Stevens if they could talk at
some point about the status of their friendship. The grievor stated that Ms. Stevens
responded by saying, "I don't know what good it will do". She noted that FIs. Stevens,
however, then proceeded to speak directly about their relationship. It was the grievor's
evidence that the ensuing discussion touched on the following matters: Ms. Stevens'
concern about gifts the grievor was leaving for her children and her perception that the
29
children were being used; Ms. Stevens' failure to respond to the grievor's invitation to
have dinner at The Keg and the upset this occasioned to the grievor; and the May 3, 201 I
conversation in which Ms. Stevens told the grievor that she wished it was east her family
who attended at the hockey games. The grievor farther testified that, at one point, IVIS.
Stevens said that she was "overwhelmed" and that it was the grievor who was causing her
to feel that way. The grievor noted that Ms. Stevens refused to provide any detail as to
what she may have said or done to cause IVIS. Stevens to experience such feeling. The
grievor clearly considered the comment to be a negative one. The grievor claimed that,
during the course of the exchange, IVIS. Stevens did not say any of the following: she did
not want the grievor to attend any of her childrens' hockey games in the upcoming
season; she did not want the grievor to visit her at work anymore; she would no longer
meet the grievor for a coffee; and she no longer wanted the grievor to give gifts to either
her or her family.
[48] The grievor testified that her conversation with Ms. Stevens was "calm and quiet"
and was "not heated at all". She stated that neither she nor Ms. Stevens raised their
voices, or cried, during their exchange. The grievor acknowledged that Ms. Stevens was
angry at the end of the discussion and, for that reason, did not want to converse farther.
The grievor insisted that she did not know what caused Ms. Stevens to be angry.
[49] hos. Stevens stated that when the grievor left the Potters Road Home following the
above exchange, there was no doubt in her mind that the friendship was "done". The
30
grievor stated that, towards the end of the discussion, she asked Ms. Stevens where their
relationship was headed going forward. It was her evidence that Ms. Stevens said she
was unsure. The grievor testified that she did not sense the friendship was over as of
August 20, 2011. In her words, she thought it was "in limbo", albeit one in a state of
turmoil. The grievor maintained that the friendship would have been over that evening, if
Ms. Stevens had simply communicated that intent in a clear and direct fashion.
[5 01 1 note for the record that Ms. Stevens did not report the above incident to the
Employer until her meeting with Ms. Hudson in late October, 2011.
[51] The grievor sent an email to Ms. Stevenson August 26, 2011, shortly after their
exchange at the Potters Road Home. In the email, the grievor seemed to recognize that
her friendship with Ms. Stevens was deteriorating. She asked for forgiveness and for a
further opportunity to finish the conversation which had begun at the Potters Road Hone.
Ms. Stevens did riot respond to this email. As a consequence, the grievor sent her the
following facebook message on August 31, 20110
"........Haven't heard back from you since I emailed you last
week requesting that we meet and continue our discussion, or at
least talk so we can understand each other. We can get through
this and you know that this friendship means a lot to me. I
would not keep trying if it didn't ............ This is not
something we need to do tomorrow but if we can compromise
on a time I would appreciate it ....................................
59
The grievor sent a second facebook message to Ms. Stevens on September 5, 2011
wherein she repeated her request that they finish their conversation. A further message
3i
from. the grievor on September 8, 2011 begged Ms. Stevens to talk abort the state of their
relationship.
[521 Ms. Stevens responded to the grievor by way of a facebook message dated
September 9, 2011. The message reads:
"You are absolutely right, this has become ridiculous. Mere is
what I want to say. When I saw that on facebook yesterday I
once again thought "enough already". When we last spoke I
told you how I felt. I asked that you not push and told you I
was overwhelmed. You responded by leaving me something in
the mailbox at Lisgar while I was working and sending
messages. It goes against everything I have been trying to tell
you. I am not saying you are totally to blame or that this is all
on you, but I am done. I have asked you to back off. Please
respect that. I do not want visits at work. I do not want you to
buy anything else for me or my family. I do riot want to have to
feel responsible for anyone else's wellbeing except my own. I
have tried to talk about this along the way, but nothing I say, I
feel is actually being heard. I understand by responding this
way that you will more than likely by angry. I would hope that
we can remain professional at work ................ . ................"
[53] The above facebook message references something being dropped off for Ms.
Stevens at the Lisgar Street Home. It is apparent from the evidence that the grievor left
Ms. Stevens some chocolates at that location subsequent to their discussion at the Potters
Road Home. The message also mentions a facebook posting which Ms. Stevens first saw
on September 8, 2011. This posting by the grievor, which was directed at Ms. Stevens,
was quickly deleted by the grievor. Ms. Stevens testified that she hoped she and the
grievor could have a professional relationship at work. In her words, however, "the
personal relationship was done" as of September 9, 2011.
32
[54] The grievor denied that Ms. Stevens told her to "back off' during their prior
exchange at the Potters Road Dome. She further expressed the belief that when -Ms.
Stevens said she was "done" in the facebook message, she meant that she was done with.
the Potters Road discussion and did not want to pursue it further. The grievor did not
interpret the words as meaning the friendship was over. Indeed, she seemed to think they
simply continued to go through a rough patch in their relationship.
[55] The grievor responded to Ms. Stevens' facebook message of September 9, 2011 by
an email dated September 12, 2011. The email reads in part:
6L
As for our conversation. You seem to think you made yourself
clear. Yet never in black and white, or plain english for that
matter.
I am a good listener and deeper than you realize. Its not that
you were never heard. You wrote in an email that you push
away when you get pushed. Well when someone comes to you
and asks to talk sometime and you opened yourself up to
conversation. It doesn't give the right to go back on previous
emails saying I told you to back off cause you never did that
night. If you had of I would not have stood there and talked.
You would have told me to leave. That night you also
mentioned that you were overwhelmed and me being the person
that I am asked you what was so overwhelming. You turned
around and said I was. Take a step back and put yourself in
someone else's shoes. Flow would you like to be on the
receiving end of a statement like that with no explanation. Of
course I wanted to know what I had done wrong to deserve
such a label. So I desperately ask for answers to get nothing.
Giving me no opportunity to make changes .........................
And then I find my acts of kindness also being targeted. I am
who I am and I give to whom I want to give too (sic.). That's
just me. I have never changed in that respect. I do it because I
want to. Not to win someone over. Yes I dropped off some
33
chocolate and sent a message not messages as I have in the past.
And in this particular case I didn't msg you to come outside
because I did not want you to think I was there to talk.
And now I sit back shaking my head. You see where I come
I
rom First Goals, Graduations etc. are a big deal. And yet I'm
accused of using innocent children as a pawn.
You have no idea what all of this is doing to me. What I wanted
in a friendship really was simple. I have also asked that you not
do this. It didn't need to be made so twisted and
complicated. . ......................
[56] The grievor seemed to accept, in retrospect, that if she had "backed off' after
September 9, 2011, then this entire proceeding could likely have been avoided. She
explained, however, that she did not see this at the time.
[57] The grievor sent Ms. Stevens two (2) further emails on September 17 and
September 21, 2011. Both emails are emotional in terms of tone and content, and express
the pain felt by the grievor as a consequence of the turbulence in the relationship. In the
latter email, as in certain other of her communications, the grievor acknowledged that she
had obsessive tendencies in her dealings with friends. IIs. Stevens did not respond to the
emails of September 12, September 17 and September 21, 2011. It was her evidence that
she felt uncomfortable when she received them. She fonned the impression therefrom
that the grievor was not going to stop communicating with her. FIs. Stevens advised that
in the early to mid September period, she was not afraid that the grievor would cause her
any physical harm.
34
[581 On September 30, 2011, the grievor dropped off a coffee for Ms. Stevens while the
latter was working alone on a night shift at the John Street Home. It is clear on the
evidence that the grievor entered the Home unannounced through an open door and left
the coffee on a kitchen counter. Ms. Stevens and the grievor did not have any contact
while the grievor was in the Home. Rather, they both spotted the other as the grievor was
pulling out of the driveway. Ms. Stevens, while not entirely sure, thought that the coffee
was left between 4:00 a.m. and 5:00 a.m. The grievor recalled that she dropped it off
between 6:15 a.m. and 6:45 a.m. Ms. Stevens testified that she was in a state of
"disbelief' that the grievor would do this after she had made it perfectly clear she did not
want any further contact with her. She added that the incident also made her nervous, as
the grievor without her knowledge had entered her workplace. The grievor stated that
she dropped the coffee off as a "nice gesture". She observed that she was only inside the
Home for less than a minute. Ms. Stevens did not report this incident to the Employer at
the time.
[59] Monday, October 17, 2011 was the first game of the season for the Midget Teams
in Tillsonburg minor Hockey. On that occasion, Ms. Stevens' son, Tanner, was called up
from his regular division to play for Midget Team # 1. His game was scheduled to start at
5:15 p.m. Ms. Moore's son, Jordan, was scheduled to play for N fidget Team #2 at 9:15
p.m. It was the grievor's evidence that she arranged to meet Ms. Moore at about 8:30
p.m. at the arena. At that time, the grievor did not know that Ms. Stevens' son had been
35
called up to play the earlier game. It is clear from the evidence that the grievor
approached Ms. Stevens' husband before the start of the second game and asked him if he
would be interested in reading a book on a hockey subject that she had recently finished.
Mr. Stevens, who was involved with hockey, responded in the affirmative. At that
juncture, the grievor told hire she would either drop it off at his home or give it to Ms.
Stevens at her work location. Ms. Stevens, who observed the conversation from a
distance, estimated that it lasted about five (5) minutes. The grievor described the
exchange as brief and stated that it was a minute or two in length. After the conversation,
the grievor returned to chat with Ms. Moore. The grievor maintained that she offered to
loan, but not gift, the book to Mr. Stevens. In her mind, that offer did not contravene Ms.
Stevens' directive of September 9, 2011 not to give anything to members of her family.
The grievor and Ms. Stevens did not speak to one another at the arena on October 17th. It
is likely that Ms. Stevens learned of the substance of the grievor's conversation with her
husband shortly after it occurred.
[601 When Nis. Stevens returned home from the above-mentioned hockey game, she
found a facebook message from the grievor on her computer. The message reads in part:
" ......................I'rn sorry my obsessive ways drove you
away. I told you I would have a hard time when we stopped
working together. But with your support it was OK. As time
went on I just kept feeling like I was losing everything. You
have no idea what that is like for someone like me. It is so
painful. I tried to hold you close to my heart but all I ever
caused you was grief. I never meant to. Believe me when I say
36
I have learned the biggest lesson in life from all that has
happened.
You will continue to hear the I love you's and ini.ss you's
because you and your family have a special place in my
heart................................................................... s�
[61] 1n her evidence, Ms. Stevens agreed that the grievor's obsessive gays was part of
what drove her away. She added that the grievor was also not listening to the parameters
she tried to establish for the friendship. The above facebook message led lis. Stevens to
delete the grievor as a facebook friend on October 17, 2011. That act led to the following
email from the grievor on October 19, 2011.
"Well imagine my surprise being DELETED from fb. I will
refrain from saying what is on any mind because for the first
time
�e ever you have made me not just hurt/devastated but
i
1 GR 1,T.'I
Ms. Stevens stated that she was scared when she read the above entail. In response to a
question why she felt that way, Ms. Stevens replied: "Because I no longer knew what she
was capable of'.
[62] The grievor testified that the deletion of her from facebook amounted to a
"closure" of her friendship with Ms. Stevens, as the latter did not want any contact with
her. She claimed that it represented a "cowardly" way to end a friendship and was angry
at Ms. Stevens for ending the relationship without first providing answers to the questions
she had asked over the course of several months relating to same.
[63] Ids. Stevens went to the Brock Street Office of Community Living Tillsonburg on
October 18, 2011. She testified that she elected to do so because the grievor had
37
continued contact with her and her family, despite being clearly told to refrain from such
contact. Ms. Stevens observed that the grievor's discussion with her husband at the
hockey game on October 17, 2011 was "a turning point", as it reinforced her feeling that
her personal efforts to stop such contact were not resonating with the grievor and were to
no avail.
[64] Ms. Stevens first saw Ms. Matthews on October 18'h. She then asked to see a copy
of the Employer's Harassment Policy. Ms. Stevens told Ms. Matthews that she had been
dealing with issues relating to the grievor on her own for a period of time, but no longer
felt equipped to do so. Ms. Stevens recalled that she was visibly upset when speaking
with Ms. Matthews and that Ms. Matthews suggested she spear to Ms. Hudson right
away. They both then proceeded to Ms. Hudson's office in the lower level of the
building.
[65] Mr. Hudson estimated that her initial meeting with Ms. Stevens lasted between
thirty (3 0) minutes and one (1) hour. It was Ms. Hudson's evidence that Ms. Stevens
advised her of the following matters during the course of their discussion:
i) Ms. Stevens' working relationship with the grievor during her one (1)
year contract at the Allan Street Horne;
ii) That after the end of the contract, the grievor wanted to spend more time
with FIs. Stevens and her family than Ms. Stevens was prepared to
devote to the friendship. Ms. Stevens told Ms. Hudson that she did not
want to engage in a friendship with a person who wanted to participate as
part of her family;
38
iii) That the grievor left gifts for her and her children. Ms. Stevens
expressed real concern that this was intensifying at a time she was trying
to end the relationship;
iv) That, on occasion, the grievor while off duty would text her asking
whether she wanted a coffee or something else dropped off at her work
location. Ms. Stevens informed Ms. Hudson that there were times this
occurred even when Ms. Stevens had replied to the text indicating she did
not want anything brought to the Home at which she was working;
v) The incident of August 20, 2011 at the Potters Road Home. Ms. Stevens
told Ms. Hudson that she did not want to speak to the grievor that
evening as the latter was upset. She further advised that she was not
prepared to have an argument with the grievor at the time, as she did not
want the supported individuals to be disturbed. Ms. Stevens also
expressed concern for the security of her job, as it was her understanding
that staff are not encouraged to have visitors while they are at work. Ms.
Stevens did, however, describe what occurred that night as a "heated
argument";
vi) Ms. Stevens informed Ms. Hudson that the grievor had sent her emails
and text messages which expressed anger at the fact Ms. Stevens no
longer wanted to be her friend; and
vii) That the grievor was threatening to take her own life if Ms. Stevens did
not respond to her. Ms. Hudson was told that, after one (1) such threat by
way of a text message, Ms. Stevens sent a friend over to the grievor's
house to check on her. Ms. Stevens advised Ms. Hudson that this
initiative made the grievor very angry.
[66] Ms. Hudson testified that Ms. Stevens was distraught during the meeting, and was
crying and shaking. She recalled that Ms. Stevens said that the situation caused her to be
afraid for her family. It was Ms. Hudson's evidence that Ms. Stevens told her that she
was being harassed by the grievor and wanted the Employer to take steps to ensure they
did not have to come into contact with each other while at work. In response, Ms.
39
Hudson told Ms. Stevens that she would look into the work-related issues. In this regard,
she asked Ms. Stevens to provide the dates on which the grievor attended at her
workplace while off duty. She also requested that Ms. Stevens show the Employer the
electronic communications which caused her concern. Lastly, Ms. Hudson suggested to
Ms. Stevens that she should contact the Police if she was worried about being harassed
outside of work.
[67] On October 19, 2011, Ms. Stevens contacted Ms. Hudson to advise that she had
reported the issue to the Police. That same day, Constable Lester informed Ms. Hudson
that she would be speaking to the grievor about the matter.
[68] Ms. Hudson was unable to talk to the grievor on October 20, 2011 about Ms.
Stevens' complaint, as the grievor left work early. The grievor called in sick on Friday,
October 21, 2011. Ms. Hudson contacted her at home that day by telephone and
informed her of Ms. Stevens' complaint. At that point, Ms. Hudson was aware that
Constable Lester had already spoken to the grievor. Ms. Hudson informed the grievor
that, given the circumstances, Ms. Stevens did not want to have contact with her at work.
She also expressed concern that the grievor had been attending at Ms. Stevens' work
locations when she was off duty. Ms. Hudson advised the grievor that the Employer
would develop a plan to keep her and Ms. Stevens apart. Ms. Hudson also told the
grievor that she believed that "everything would work out", if she stayed away from Ms.
Stevens. It was her recollection that the grievor did not offer much of a response to what
L401
she was told. Ms. Hudson stated that this telephone conversation was brief and lasted
only a minute or two (2). As the grievor was scheduled to be off work for the weekend,
Ms. Hudson arranged to meet with her on Monday, October 24, 2011.
[69] The grievor testified that the above telephone call occurred in the early afternoon
on October 21, 2011. It was her evidence that IVIS. Hudson did not then provide much
detail about the specifics of the harassment complaint. The grievor recalled that during
the exchange, Ms. Hudson informed her that she would be receiving a letter of concern
about being on work property while not working. The grievor voiced some objection to
this. In her words, "it was not uncommon to be on work property, bringing people
coffee, visiting, when we were not working". The grievor recalled that Ms. Hudson
asked her if she was okay and whether she needed to speak to the EAP service provider.
The grievor declined the opportunity notwithstanding the fact she was, admittedly, upset
and crying. She confirmed that a meeting was arranged with Ms. Hudson for the
following Monday. The grievor testified that Ms. Hudson did not inform her that she
could bring a Union Representative to that meeting. On her account, this telephone call
lasted for between five (5) and ten (10) minutes.
[70] Ms. Hudson met with the grievor at the Livingston Centre on October 24, 2011.
Ms. Stefan, the Manager of Human Resources, was also present. Ms. Hudson testified
that when the grievor arrived at the meeting, she was asked whether she wanted the
assistance of a Union Steward. It was Ms. Hudson's evidence that the grievor replied
41
that she did. not. Ms. Hudson then informed the grievor that the meeting could be stopped
if she changed her mind. She advised that the grievor never subsequently asked for the
presence of a Union Steward. The grievor testified that she was never told she could
bring a Steward to the meeting. In her mind, the issue was simply a matter between two
(2) coworkers. She did not, at the time, think there was a compelling need for Union
representation.
[71] At the meeting the grievor was given two (2) letters dated. October 24, 2011, both
signed by Ms. Hudson. The first letter reads:
6L
...........................................................................
This letter documents our phone conversation of Friday
October 21, 2011. At that time you were informed that there
had been a harassment complaint filed against you by Jan
Stevens. This complaint was filed on Tuesday October 18,
2011. Jan claimed that she had asked you to stop and was to
the point of being fearful both at home and at work.
At work she claims that you continued to contact her both in
person at the homes of the people she is working for and by cell
phone messages. She claims that although she has asked you
many times to stop contact with her, you continue to do so.
This information was confirmed by Oxford OPP officer Dana
Lester on Wednesday October 19, 2011.
You will no longer have any scheduled contact with Jan at
work. If while supporting a person within our community, you
find yourself at the same location as Jan, you are to avoid
contact and leave as soon as your business is complete.
You will be required to attend mandatory counselling with
Family Services London. We will have no knowledge of what
you discuss at your appointments, but will have confirmation of
your attendance at your appointments. You will schedule these
OR
appointments at your convenience on your time. We should
have confirmation that you have attended by November 14,
201 1.
Should you not attend mandatory counselling, disciplinary
action, including termination of employment will occur.
Should you have any unwelcome or unwarranted contact with
Jan Stevens while at work, termination of employment will
occur.
The second letter, headed 'Letter of Concern', reads:
�t
...........................................................................
This letter documents our discussion by phone Friday October
21, 2011. At that time Y informed you that at no time are you to
go to the home of any person who we support, for the purpose
of visiting with the staff, who are there to support them. This
includes for the purpose of dropping off personal items, food or
drink.
You will only go to someone's hoarse when on paid time for
business or work purposes.
Should you not follow this instruction, disciplinary action, up to
and including termination of employment will occur.
17
[721 Ms. Hudson testified that she explained the content of, and the rationale for, the
above letters to the grievor. She did not recall the grievor asking any questions about
them. Indeed., Ms. Hudson stated that the grievor did not say much at the meeting. She
attributed this to the fact that what was being communicated to her was not new, given
their prior conversation on October 21, 2011 and the grievor's earlier discussion with
43
Constable Lester. Ms. Hudson stated that as of October 24"', she viewed the grievor's
behavior as harassment `bat work". She advised that the Employer's response, in the form
of the letters reproduced above, represented an attempt to comply with the requirements
of Bill 165. Ms. Hudson indicated that her overall objective was for the grievor to
recognize that Ms. Stevens did not want a friendship and that she just had to stay away
from her at work. At the time, she believed that the grievor would comply with the
directive and that would ultimately end the matter. Ms. Hudson added that the provisions
around non -contact were also for the grievor's protection.
[73] Ms. Hudson observed that the instant situation was the Employer's first case of a
harassment complaint between co-workers. As a consequence, she elected to obtain the
advice of Family Services London, the Employer's EAP service provider. Ms. Hudson
advised that it was their advice to require the mandatory counselling referenced in the
first letter set out above. In her view, the counselling represented an attempt to correct
the grievor's behavior and to snake it clear that she needed to cease contact with Ms.
Stevens.
[741 Ms. Hudson acknowledged that she did not ask the grievor to provide anything in
writing with respect to her version of the relevant events. Additionally, she did not
provide her with copies of the emails or text messages that Ms. Stevens complained
about. Ms. Hudson explained that Nis. Stevens did not want her to do so, as she feared
44
there might be some retaliation against her. Lastly, Ms. Hudson informed the grievor that
there was a need to maintain confidentiality with respect to this matter.
[75] The grievor stated that, at the meeting, Ms. Hudson told her that she could no
longer work with Ms. Stevens given the latter's harassment complaint. She did not ask
any questions about the particulars of the alleged harassment, but understood from the
discussion that it stemmed from her contacts with Ms. Stevens and the gifts she left for
her and her family. The grievor maintained she told Ms. Hudson that she had not
harassed her co-worker. In support of this assertion, she showed Ms. Hudson a short
series of text messages to illustrate that in July, 2011 she had respected Ms. Stevens'
communication that she did not want a coffee dropped off for her at work.
[76] The grievor expressed the belief that there was nothing she could have said at the
meeting that would have changed things. She sensed that Ms. Hudson and Ms. Stefan
believed that she was at fault. With respect to IVIS. Hudson., the grievor said: "Cathy is
Cathy... she is not one to change her mind." The grievor maintained that Ms. Hudson did
not ask her to respond to the content of the first letter cited above. Nor was she told that
such an opportunity would be provided at a later point in time. The grievor also observed
that she was not provided with any of the following: a written complaint from Ms.
Stevens pertaining to the harassment; the dates on which Ms. Stevens claimed to be
fearful at home or at work; documents which supported the complaint; and examples of
unwanted contact either at work or through some form of electronic communication. The
45
grievor further noted that no mention was made at the meeting of the Employer's
Harassment Policy.
[77] The grievor testified that she did voice objection to the prohibition documented in
the Letter Of Concern. It was her experience that visits to Homes by off duty staff had
always taken place and that members of management, including Ms. Hudson and Ms.
Matthews, were aware of same.
[78] The grievor confirmed that Ms. Hudson told her that the issue with Ms. Stevens
should be Dept confidential. The grievor informed Ms. Hudson that she had already
discussed the situation with Ms. Moore and one (1) other coworker who was also a
friend. It was the grievor's evidence that Ms. Hudson told her that if either of these
individuals caused any trouble for Ms. Stevens, then the grievor would be reprimanded.
[79] The grievor recalled that the meeting on October 24th lasted for approximately
thirty (30) minutes. She stated that she was upset during the meeting. Subsequent to the
meeting, the grievor attended a mandatory counselling session on November 3, 2011, It
was her evidence that she dad not find the counselling to be useful, in large part, because
the counsellor assigned did not listen to her. She was only required to attend the one (1)
session.
[80] Ms. Stevens had a second meeting with Ms. Hudson on October 27, 2011. At that
time, it was agreed that the Employer would no longer schedule Ms. Stevens to work
with the grievor at the same location. Ms. Hudson provided Ms. Stevens with a letter of
46
the same date which detailed how the scheduling would be done going forward. The
letter reads in part:
G4
On Tuesday October 18, 2011, you filed a complaint with me in
which you claimed that you had asked Kelly to stop contacting
you both at home and at work. Her behavior toward you caused
you to be concerned for your safety as well as your family.
You claimed that she continued to contact you both in person at
the homes of the people you were working for and by cell
phone messages. This information was confirmed by Oxford
OPP Officer Dana Lester on Wednesday October 19, 2011.
In order to ensure that you have no contact at work, you will no
longer book any shifts to support people who live at 11
Glendale or 4 and 6 John St. at monthly booking meetings.
You will be moved to support other people for the shifts that
were booked at the last booking meeting. Managers have been
instructed that they can call you in for shifts to support people
at these homes if there is no opportunity of contact with Kelly.
If while supporting a person within our community, you find
yourself at the same location as Kelly, you are to avoid contact
and leave as soon as your business is complete.
You have been offered the opportunity to seek counselling with
Family Services London. This.is a service offered to all of our
employees. It is a confidential service and there is no report
given to the employer of what you discuss at your
appointments.
Kelly is aware of the conditions of her employment concerning
further contact with you at work. Should you have any
unwelcome or unwarranted contact with Kelly Oliver while at
work, you will report it to myself or Marni Stefan, HR
Manager.
57
47
Ms. Stevens advised that after the issuance of this letter, she did not work as many shifts.
She explained that people with less seniority got the shifts at the Glendale and John Street
IIBY =
[8 11 As noted, the above letter states that the grievor's behavior caused Ms. Stevens to
be concerned for her safety, as well as that of her family. Ms. Stevens was asked when
her feeling of being uncomfortable changed to fear. She replied that when the grievor
approached her husband at the arena on the evening of October 17, 2011, she realized
that she wasn't getting through to her with the message to refrain from contact with her
and her family. Ms. Stevens added that, at that point, she could not predict what the
grievor was going to do. She referenced the fact that the grievor was then very angry, as
reflected by the content of her email of October 19, 2011. Ms. Stevens also advised that
she did take advantage of the offer to use the counselling services of Family Services
London.
[82] Ms. Hudson testified that, as of October 27, 2011, she suspected that the
scheduling protocol agreed to on that date would be the solution to Ms. Stevens'
complaint. She clearly expected both employees to stay away from each other. In her
words, it unfortunately "did not play out that way"
[83] Ms. Hudson stated that she subsequently learned from IVIS. Stefan that Ms. Stevens
had complained that the grievor was following her around., driving by her house and
attending at the arena to watch her son play hockey. Ms. Hudson met with Ms. Stevens
49
at the Livingston Centre on November 11, 2011 to discuss these new developments. On
the evidence, it seems that Constable Lester had previously advised the Employer that
what the grievor was doing outside of work was causing Ms. Stevens to feel threatened at
work and that Ms. Stevens' safety had to be ensured. Ms. Hudson recalled that Constable
Lester also said that the police were pursuing possible criminal charges. Following the
meeting of November 11, 2011, the Employer issued Safety Plan #2 on November 14,
2011. (I assume that the letter of October 27, 2011 was treated as the first such plan).
Safety Plan 92 reads in part:
66
Concerns: Kelly has been talked to by the police as
well as the employer but she continues to
harass you by driving by your home and go
to places that you are attending.
Workplace
Actions: 1) In order to minimize contact with Kelly
at work, no shifts will be offered or taken by
you, to support people who live at 11
Glendale and 4 & & John St. that conflict
with Kelly's schedule. Managers may call
and offer you shifts to support at these
locations as long as they do not conflict with
Kelly's schedule.
2) If you find that while out in the
community supporting people you are at the
same location as Kelly you are to avoid
contact and leave as soon as your business is
complete.
3) the employer will not contact Kelly until
she returns from vacation on November 21,
2011.
49
4) Managers will be updated to respond
immediately to any call that you mare
requesting assistance. If the concern is that
Kelly is harassing you or coming to where
you are working, you will contact police
directly and then inform the manager that
you have done so.
Should you have any unwelcomed or unwarranted contact with Felly while at work you
will continue to report this to either myself or Marni Stefan, Manager Human Resources.
We are in agreement with this safety plan and agree to update this plan as required.
79
[84] It will be helpful at this stage to describe the chronology of Constable Lester's
investigation from the outset until late November, 2011. The material components of her
investigation may be summarized as follows:
i) Constable Lester initially received a telephone call from Ms. Stevens on
October 19, 2011. At that time, Ms. Stevens provided her with
infon-nation about the situation she was confronting. On the basis of
what she heard, Constable Lester classified the complaint as one of
possible harassment, Information was gathered during this telephone
conversation through a series of questions and answers. Constable Lester
determined that fiTther action was necessary based on the information
received from Ms. Stevens. More specifically, she concluded there was a
need to investigate in order to find out whether harassment was, or was
not, occurring. Constable Lester could tell that Ms. Stevens was upset
while they were speaking. Ms. Stevens was asked to attend at the
Detachment for a personal meeting with Constable Lester;
ii) Ms. Stevens attended at the Detachment that same day. At that time, Ms.
Stevens provided a video statement of approximately thirty (30) minutes
in length. A lot more detail was provided. Constable Lester observed
that Ms. Stevens was upset, frustrated and fearful when she gave her
statement. Constable Lester did not doubt the legitimacy of what she was
told or the authenticity of Ms. Stevens' emotions. She testified that it
would have been premature to lay a criminal charge at this point;
50
iii) Constable Lester spoke to Ms. Hudson later on October 19th about
general safety planning, and how to ensure things were manageable when
both Ms. Stevens and the grievor were in the workplace. Ms. Hudson
then advised her of the Employer's plans for scheduling the two (2)
employees and of its intent to require the grievor to participate in
mandatory counselling;
iv) Constable Lester stated that as of October 191, Ms. Stevens was
uncertain if she wanted the grievor to be spoken to by the Police. She
advised that she had the discretion to not speak to the grievor, as the
complaint did not emanate from a domestic situation. Constable Lester
received a second call from Ms. Stevens on October 19t" about new
developments, namely the grievor's angry email of that same day and
two (2) related text messages. MS. Stevens was asked to meet with
Constable Lester at the Detachment on the following day;
v) Constable Lester spoke to Ms. Stevens at the Detachment on October 20,
2011; At that time, she received a copy of the grievor's email of October
19th. A decision was then made that Constable Lester would contact the
grievor and speak to her. Constable Lester subsequently contacted the
grievor and requested her attendance at the Detachment. The grievor
arrived there shortly after the telephone request;
vi) Constable Lester indicated that the purpose of the meeting was to advise
the grievor that further contact with Ms. Stevens was not welcomed. It
was her experience that a warning from the Police often serves to stop
unwanted contact. Constable Lester apprised the grievor of the
allegations and of Ills. Stevens' desire for no farther contact. She
described the grievor at the meeting as emotional and very upset.
Constable Lester recalled that the grievor told her that all she really
wanted was an explanation of why the friendship had dissolved.
Constable Lester did not doubt the sincerity of the emotions displayed by
the grievor. It was Constable Lester's opinion that, at this juncture, there
was no reasonable and probable cause to lay a criminal charge. She did,
however, explain to the grievor what criminal harassment was and
cautioned her that such a charge could be laid in the event of future
contact with Ms. Stevens. Constable Lester subsequently spoke to Ms.
Stevens by telephone to advise that a warning had been given to the
grievor about future contact;
51
vii) On October 27, 2011, the grievor contacted Constable Lester and asked
to meet with her, as she had certain questions she wanted answered. The
grievor subsequently attended at the Detachment that day accompanied
by Ms. Moore. The grievor, in substance, wanted to know whether she
could go to the arena in Tillsonburg to watch hockey games. The grievor
was advised by Constable Lester that she could do so, but that a problem
would arise if she only went there to watch Ms. Stevens' children play.
Put another way, it would be problematic if a pattern emerged of the
grievor being present at the arena to only watch Ms. Stevens' children
play hockey. The grievor informed Constable Lester at this meeting that
she had other friends, apart from Ms. Moore, whose children played
hockey at the Tillsonburg area;
viii) Constable Lester A, -as contacted by Ms. Stevens on November 7, 2011.
At that time, Ms. Stevens advised her that the grievor had purchased a
new vehicle, a red General Motors SUET, and that she had observed it
being driven by her home. Ms. Stevens gave Constable Lester a partial
plate'number and a description of the vehicle. After making an inquiry
with the Ministry of Transportation, Constable Lester determined that the
grievor was the registered owner. Thereafter, Constable Lester patrolled
the area around Ms. Stevens' residence in search of the vehicle. The
search proved futile, but she did ultimately locate the vehicle at the
Tillsonburg arena. Constable Lester consulted with her Supervisor about
this new information. She was concerned that the grievor would drive by
Ms. Stevens' home, after having been spoken to about future contact.
Despite her concern, Constable Lester was not sure that a criminal charge
was the best way to resolve the issue;
ix) Ms. Stevens again spoke to Constable Lester at the Detachment on
November 12, 2011. Ms. Stevens then provided information of drive-bys
of her house by the grievor, or a person she thought was the grievor.
More specifically, she provided details of a vehicle, matching the
description of the grievor's vehicle, in her neighbourhood on November
7 (at 6:22 a.m.), November 9 (at 9:37 p.m.) and on November 10, 2011.
Ms. Stevens informed Constable Lester on this occasion that she had
safety concerns, as her husband worked at nights. She further told
Constable Lester that she felt uncomfortable being home alone at night
given the grievor's behavior. Constable Lester noted that Ms. Stevens
was emotional and was shaking during this meeting. In her view, Ms.
Stevens appeared to be "stressed out". As before, Constable Lester did
MAN
not have any doubts about the authenticity of Ms. Stevens' display of
emotions;
x) Constable Lester spoke with the grievor by telephone on the evening of
November 22, 2011 with respect to what she was told by Ms. Stevens on
November 12, 2011 concerning the drive-bys. It was Constable Lester's
evidence that the grievor admitted to one (1) of the drive-bys. The
grievor told her that she was just driving around and that she had a friend
who lived in the area. Constable Lester recalled that the grievor said that
she had not seen her friend on that occasion. She then explained to the
grievor that anything farther would likely lead to criminal charges being
laid, and that drive-bys are considered, in this context, to be criminal in
nature. Constable Lester believed that the grievor understood the
potential of a criminal charge being laid against her. She noted that the
grievor became upset as the discussion progressed. Throughout this
period, Constable Lester had on-going discussions with the Employer
about how to Deep Ms. Stevens safe while at work; and
xi) Constable Lester again spoke with Ms. Stevens by telephone on
November 29, 2011. On that occasion, Ms. Stevens reported that the
grievor was attending hockey games at the arena at times when she and
her family were there. It is apparent from the evidence that Ms. Stevens
made this type of report to Constable Lester on numerous occasions prior
to charges being laid. In cross-examination, Constable Lester advised
that the reporting was excessive and unnecessary in some instances, as
she did not think that the grievor was doing anything wrong. In her view,
Ms. Stevens seemed to report to her everytime the grievor was at the
arena, whether or not such attendance would constitute harassment.
[85] On November 30, 2011, Ms. Stevens complained to Ms. Hudson about certain
messages she observed on facebook posted by the grievor and other staff members. Ms.
Stevens was concerned because the material on facebook seemed to allude to what was
going on at work between she and the grievor. Ms. Hudson then proceeded to look at the
facebook pages of both the grievor and Ms. Moore. She noted that they contained
ON
comments from other staff. Ms. Hudson had a similar discussion with Ms. Stevens on
December 5, 2011, as the latter had found additional comments on facebook.
[86] While it is not entirely clear, it appears from the evidence that Ms. Stevens was
particularly concerned about two (2) facebook postings. The first was posted by Ms.
Moore on or about November 13, 2011. The second was posted by the grievor on or
about November 26, 2011.
[87] Ms. Moore's posting included a graphic of "The Seven Dwarves of Menopause".
The last dwarf depicted was described as "Psycho". The grievor made the following two
(2) comments on Ms. Moore's facebook page about the posting:
"Hnunnim Now who fits the last one? Bet you know iuy
choice".
"Doesn't matter how many times you post this. My choice
of Psycho is still the same. Guess thats what happens when
you get burned."
[88] The grievor agreed that, while she did not identify Ms. Stevens by name, she was
referring to her in the above comments. In cross-examination, she agreed that, in effect,
she told Ms. Moore on facebook that Ms. Stevens was a psycho and that she was making
fan of her. The grievor denied that this was part of a campaign to vilify Ms. Stevens.
[89] Ms. Moore testified that, at the time, she was relatively new to facebook and did
not understand that once posted, it was out there in public for all to see. Ms. Moore
acknowledged that her posting was directed at Ms. Stevens and that she admitted to this
in a subsequent meeting with Ms. Hudson and Ms. Stefan. 1t was Ms. Moore's evidence
54
that she was advised that if anything more was posted against FIs. Stevens, then both she
and the grievor would be reprimanded.
[90] The relevant comments from the grievor's facebook page read:
"Sabina Van den .Bergh Can't help wondering what you are
up to L®L
15 hours ago
Kelly Oliver Ya well not much. As you know every time I turn
around, I'm being squealed on about something. Damn I wish
some days I was as perfect as the rest.
14 hours ago
Sabina Van den Bergh You mean it happened again?? A
complaint??
14 hours ago
Taney Moore No Sabina she is just not perfect like the rest.
Everyone has to (sic.) much freakin time on there (sic.) hands.
Karma is a bicth (sic.) and what goes around comes around
somehow sometime. These are nay own words BTW
12 hours ago
Sabina Van den Bergh Yes 1 believe in Karma too Tammy.
And you are right, some ppl have too Hauch time on their hands
and they use that time to hurt others. Sad really. It's those ppl
that end up old and alone with no one around in their later years
because of their stupid actions in life.
about an hour ago"
[91] The grievor advised that Ms. Vanden Bergh was a friend and a former co-worker
at Community Living Tillsonburg. It was her evidence that her comment in the above
excerpt was about something at work unrelated to Ms. Stevens. She could not recall,
though, precisely what it was about. The grievor thought, however, that Ms. Van den
55
Bergh's comments were a reference to Ms. Stevens and her complaint. The grievor
claimed that her friend misunderstood what she was saying in her initial posting. She
also assumed that Ms. Moore was referring to Ms. Stevens in her comment. The grievor
agreed that if Ms. Stevens read these messages, she could possibly think some of then
were about her. Ms. Moore testified that her comment was not about Ms. Stevens.
Rather, it was just a general comment she elected to make because of a number of issues
she was confronting in the workplace at that time. Ms. Moore stated that she never spoke
to the grievor about what the grievor meant by her comment.
[92] Ms. Hudson and Ms. Stefan met with the grievor on December 6, 2011 about the
postings on facebookl- Ms. Hudson testified that she asked the grievor if she wanted a
Union Steward present. It was her recollection the grievor responded by asking, "do I
need one?" IIs. Hudson stated that she then advised the grievor that the meeting could
stop if she wanted the assistance of a Steward. It was her evidence that the meeting
started and that the grievor never asked for Union representation during the course of
same. Ms. Hudson did not consider this meeting to be disciplinary in nature. The grievor
disputed Ms. Hudson's evidence. She maintained that she was never given the
opportunity to have a Union Steward present after she got to the meeting
[93] Ms. Hudson, at this meeting, reiterated the need for the grievor to maintain
confidentiality about what was occurring in the workplace between her and Ms. Stevens.
She had initially spoken of the need for confidentiality during her first meeting with the
56
grievor on October 24-12011. Ms. Hudson discussed what she had seen on facebook and
suggested that the grievor consider increasing her security settings. It was the gist of Ms.
Hudson's concern that the issue between the two (2) co-workers was being broadly
discussed by others on social media. Ms. Hudson formed the impression that the grievor
was more frustrated at this meeting and that she did not view the material on facebook as
"a big deal". She noted the grievor denied that this material was work related.
[94] The grievor testified that she found the meeting of December 6f to be frustrating,
in part because she had previously discussed the facebook issue with Constable Lester on
November 22, 2011. The grievor noted that she was not shown any particular facebook
postings at the meeting. She recalled telling Ms. Hudson that the message on her
facebook page did not relate to Ms. Stevens. The grievor was uncertain if she discussed
her responses to Ms. Moore's posting. It is apparent that the grievor did accept Ms.
Hudson's advice about her security settings. Following the meeting, she went home,
changed her settings, and blocked Ms. Stevens from accessing her on facebook.
[95] Ms. Hudson also spoke to the grievor about her attendances at the Tillsonburg
arena during their meeting of December 6h. More specifically, she offered suggestions
as to how she could avoid Ms. Stevens when they were both there. Ms. Hudson informed
the grievor that what she was doing outside of work was impacting the workplace. Ms.
Hudson testified that, at this point, she was concerned about a potential criminalcharge
being laid. In her judgment, the grievor by her actions was not aiding her own cause.
57
[96] The grievor testified Ms. Hudson told her that she should not be at the arena, as
Ms. Stevens did not want her to watch her childrens' hockey games. The grievor advised
Ms. Hudson that her view was contary to the earlier instruction received from Constable
Lester on October 27, 2011. In the grievor's words, she felt that Ms. Hudson was trying
to control her "outside life". The grievor acknowledged that Ms. Hudson did not have
the authority to say she could not attend at the arena.
[97] At this juncture, I note that a lot of evidence was presented by the parties about the
grievor's attendance at the Tillsonburg arena at times when Ms. Stevens and her family
were also there. It is unnecessary to review all of this evidence, as the Employer does not
rely on it to support the discipline imposed in this case. In any event, the evidence does
not support a conclusion that the grievor was only at the arena to watch Ms. Stevens'
children play hockey. Rather, it is consistent with the grievor's assertion that she
attended at the arena to watch the children of other friends, such as Ms. Moore and Ms.
Rita Tesselaar, play hockey. Additionally, I am satisfied, on the evidence, that the
grievor generally acted in conformity with the direction given to her by Constable Lester
on October 27, 2011.
[98] Ms. Stevens testified that she had a substantial number of unwanted contacts with
the grievor in the period November to December, 2011. It appears from the evidence that
most of these contacts were reported to both Constable Lester and IIs. Hudson. The
evidence with respect to same is set out below.
58
[99] Ms. Stevens stated that the grievor frequently drove by her home. She noted that
the grievor then lived in another part of Tillsonburg, some distance from her subdivision.
Ms. Stevens recalled that the initial drive-by occurred shortly after the grievor acquired
her new vehicle in early November, 2011. On Ms. Stevens' evidence, Nis. Roden had
previously advised her that the grievor had recently changed vehicles. While it is not
entirely clear, it is likely that this drive-by occurred on or about November 7, 2011.
Constable Lester also received a report from Ms. Stevens of f n-ther alleged drive-bys on
November 8th and November l Ota'.
[ 100] The grievor acknowledged that she drove past Ms. Stevens' home on one (1)
occasion during the first week of November, 2011, shortly after her acquisition of the
new vehicle. She maintained that this was the sole occasion she drove in Ms. Stevens'
subdivision in the period material to this case. The grievor stated that the drive-by
occurred between 6:00 p.m. and 9:00 p.m. and that she did not then actually see Ms.
Stevens. The grievor explained that she elected to drive by Ms. Stevens' residence, as
she was curious about how she was doing. She further advised that she also had other
friends who lived in the same subdivision. The grievor agreed it might appear suspicious
to an objective observer that she drove by Ms. Stevens' hoarse shortly after the purchase
of her new vehicle.
[101] Ms. Stevens reported that she saw the grievor in her vehicle at the four (4) way
stop at Lisgar and Concession Streets on November 1, November 15, November 29 and
59
December 13, 2011. On those occasions, Ms. Stevens was on her way to or from work at
the Tillson Street Home. The aforementioned dome is two (2) blocks away from the four
(4) way stop. Ms. Stevens doubted that these sightings were simply a matter of
coincidence. While she acknowledged that Tillsonburg is a small town and that
residents, as a consequence, could "bump into" people they know, it is unusual in her
experience for this to happen a couple of times a week outside of work.
[102] The grievor's response to this allegation may be summarized as follows:
i) It is possible that she was at the four (4) way stop on November 1" on her way
to KFC or Pioneer Station. Bank records submitted confirmed that she made
purchases that day at both of these businesses;
ii) The grievor travelled to St. Thomas on November 15t' to visit with a friend and
the friend's granddaughter. She advised that she left for St. Thomas in the
morning and that she did not recall the time of her return to Tillsonburg. Bank
records were filed to establish that the grievor made certain purchases while in
St. Thomas. It was the grievor's evidence that ,she would not have gone
through the four (4) way stop to get to St. Thomas. She acknowledged the
possibility that she was at that location later in the day on November 15I' after
her return to Tillsonburg. The grievor did not recall seeing Ms. Stevens at the
four (4) way stop that day,
iii) The grievor further acknowledged that she could have gone through the four (4)
way stop on November 29'�' on her way to the Tillsonburg Mall. Bank records
also disclosed that she purchased gas that day at an ®LCO Station. That gas
station is about one (1) block away from the four (4) way stop;
iv) Mss. Stevens reported to Constable Lester that she observed the grievor driving
west on Brock Street on December 13th and then turn north onto Broadway.
The grievor agreed that she could have taken that route on December 13th for
purposes of getting to the Tillsonburg Mall and other retail outlets close to the
Mall. She observed that she likely proceeded through the four (4) way stop on
her drive downtown;
K41
v) The grievor noted that she would normally go through the four (4) way stop in
question if travelling from the Glendale or John Street Domes to a number of
places, including the Community Living Tillsonburg Office, the Tillsonburg
Mall and the Baxter Centre. I was left with the impression that the latter Centre
offers courses and programs for the individuals being supported; and
vi) It was purely a coincidence that Ms. Stevens was working on all of the days the
grievor drove through the four (4) way stop in question.
[103] Ms. Stevens reported to Constable Lester that the grievor twice drove by the
Potters Road Dome on December 9, 2011 while she was working there. The grievor
denied this allegation. It was her evidence that she was away from Tillsonburg from 5:00
a.m. in the morning until the late evening. More specifically, she stated that she was in
Aylmer and St. Thomas with a friend, and that she also travelled to London to shop. A
receipt from a retail store in London, showing a debit transaction at 11:39 a.m. on
December 9th, and pictures of the friend's grandson, with the date inscribed thereon,
were filed in support of the grievor's assertion that she was out of town on this day. The
grievor agreed that the exhibits filed did not establish she was away from Tillsonburg for
the entire day.
[104] Ms. Stevens testified that while working at the Potters Road Home on or about
December 15, 2011, she observed the grievor drive by "at least ten times" over a period
of approximately three (3) hours. She believed that the drive-bys occurred on a weekday
morning while she was working alone on a day shift. Ms. Stevens advised that she
observed a burgundy Terrain SIV repeatedly pass the Dome in both directions. She
advised that the majority of the sightings were from the front window of the Potters Road
N
Hone. Ms. Stevens further advised that Potters Load can also be seen from a side
window in the front room. It was her evidence that she was able to specifically identify
the grievor as the driver of the vehicle on one (1) of the drive-bys, and that she identified
the grievor's licence plate number about seven (7) or eight (S) times. Ms. Stevens stated
that with respect to the latter identification, she saw the back licence plate for the
majority of the drive-bys. I was advised that the speed limit on Potters Road is fifty (50)
kilometres per hour.
[105] On the day in issue, Ms. Stevens was supporting six (6) individuals. She agreed
that the Potters road Home can be a "busy place", given all of the needs of the residents.
Ms. Stevens acknowledged that she was not sitting in the front room for the entire three
(3) hour period. Rather, she was in and out of the room that morning. In her words, she
was "more keen" on noticing the drive-bys after the first few sightings, She testified that
she was nervous and, therefore, more focused than usual about what was going by the
Home.
[106] At some point during her shift, Ms. Stevens called her Manager and asked her to
come to the Potters road Dome. It was her evidence that the Manager attended this work
location on December 15, 2011. She further recalled that it was the only time this
Manager came to see her at work in the period from October, 2011 to January, 2012. Ms.
Stevens was, nevertheless, unsure as to whether December 15'x` was the actual date of
62
these multiple drive-bys. On all of the evidence, I am satisfied that the incident likely
occurred on that day.
[10 7] Ms. Stevens thought that she reported ten (10) drive-bys to Constable Lester. In
cross-examination, she conceded it was possible that she only reported three (3) drive-bys
on December 15"'. Constable Lester testified that Ms. Stevens reported seeing only three
(3) drive-bys by the grievor that day. She did not recall Ms. Stevens ever reporting that
she saw ten (10) drive-bys on December 15th. Ms. Hudson similarly testified that Ms.
Stevens never reported ten (10) drive-bys to her. It was her information that Ms. Stevens
reported a lesser number of drive-bys to her Manager.
[1081 The grievor, in response, maintained that she did not drive past Potters Road on
December 15, 2011. She advised that she went shopping and got a haircut that morning,
both of which tool{ her to the east end of Tillsonburg. The grievor testified that she then
worked between 1:00 p.m. and 9:00 p.m., following which she returned home.
[109] Ms. Moore worked at the Potters Load Dome in the period between Ms. Stevens'
complaint and the grievor's termination. She recalled that she worked with Ms. Stevens
two (2) to three (3) times over that time frame.
[110] Following the grievor's termination, Ms. Moore took a series of photographs from
inside the Potters Road Home. In examination in -chief, Ms. Moore testified as follows:
to watch people drive by the Dome, a person would have to be out on the exterior front
deck; Potters Road is busy in terms of the volume of traffic and, given the speed of
63
passing vehicles, a person watching from inside the Home would only see the colour, but
not the make, of every vehicle passing by; a person inside the Home would not see the
frill vehicle if looking out the front window because the line of vision would be partly
blocked by the exterior deck and bushes; and it is very unlikely that a person working
inside the Hone would observe numerous drive-bys, given the time they need to spend
with the individuals being supported.
[I 11] In cross-examination, and on being shown a series of photographs taken by the
Employer, Ms. Moore agreed that Ms. Stevens could possibly have seen the grievor drive
by twice, but not ten (10) times, on any given day. She further agreed that if Ms. Stevens
stood close to the front window, with the blinds and sheers open, then she could observe
vehicles passing by. Ms. Moore added, however, that the blinds are never fully open, so
as to ensure the residents are able to watch television without any interfering glare. Ms.
Moore also acknowledged that a person can see Potters Load from both the side window
in the front living area and from a window in the kitchen. Lastly, Ms. Moore claimed
that there were four (4) red SUVs, similar to the grievor's vehicle, in Tillsonburg at the
relevant time. She advised that one was owned by the husband of a co-worker of her
husband. Ms. Moore stated that this person lived close to the Potters Road Home and
worked near Lisgar Street. She suggested that this vehicle could potentially have been at
either location on the occasions Ms. Stevens believed she saw the grievor's vehicle.
64
[112] Ms. Moore stated that following Ms. Stevens' complaint, the schedule for the
Potters Road Home no longer referenced Ms. Stevens and the shifts she would be
working. It was the thrust of her evidence that she would, consequently, not know when
Ms. Stevens would be working at the Home. Ms. Moore also testified as follows: she
never told the grievor that Ms. Stevens was at work after learning of same on her arrival;
she never asked her co-workers where Ms. Stevens was working; the grievor never asked
her if she knew where Ms. Stevens was working; and the grievor never asked her if she
was working with Ms. Stevens. Simply put, she denied providing any information to the
grievor about Ms. Stevens' schedule of work at the potters road Home.
[113] Ms. Stevens reported to Constable fester that she saw the grievor in her vehicle at
a three (3) way stop at Bridge and Lisgar Streets at about 3:00 p.m. on December 26,
2011, right after the end of her shift at the Tillson Street Home. Ms. Stevens also
reported that she saw a vehicle in Goderich that day which matched the description of the
grievor's SUV. Constable Lester testified that Ms. Stevens told her that at this point in
time she was starting to become paranoid. Constable Lester stated that she hadno reason
to think the grievor was actually in Goderich on that day.
[114] The grievor acknowledged that she passed Ms. Stevens at the above-mentioned
intersection on December 26h. She explained that she was on her way to Staples to
purchase a Blackberry Playbook. The electronic device was purchased at about 3:25 p.m.
The grievor then returned home. She later went back to Staples after 5:00 p.m. to pick up
W
the playbook, which had been set up for her use by Staples' staff. The grievor stated that
once home, she played with the device for the entire night. She denied that she was in
Goderich on December 26 .
[115] Ms. Stevens reported that while working at the Queen Street Home on December
281 2011, she observed the grievor drive by twice on Lisgar Street. The aforementioned
home is on the corner of Queen and Elgin Streets. The grievor advised that staff working
in the Home can see Lisgar Street through a side door. She also acknowledged that a
person driving on Lisgar can see the parked vehicles of staff working at the Queen Street
Home. The grievor agreed that she very likely did travel along Lisgar Street given where
she made a number of purchases that day, as reflected by her bank records. She fiarther
noted that she worked between 7:30 a.m. and 3:30 p.m. at the Glendale Street Home on
December 28th. The grievor speculated that she may have taken residents out for a ride or
gone to the Community Living Tillsonburg Office, both of which could have taken her by
the Queen Street Horne. She claimed that if she drove by that location, it was just
coincidence that Ms. Stevens was working at the time.
[116] Ms. Stevens testified that there were frequent occasions when she drove to the Tim
Hortons near her home in the early morning, between 6:00 a.m. and 6:30 a.m., when she
saw the grievor parked in her vehicle. In her mind, the grevor's vehicle was parked in a
position from which she could see her turn into Tiny Hortons. Ms. Stevens noted that the
grievor knew she went to that location in the morning. It was her impression that the
RM
grievor was watching her. She considered it significant that the grievor never stayed in
the parking lot after she exited the area. Indeed, Ms. Stevens maintained that there were
times when the grievor followed her back to her subdivision or to her work location.
[117] It was the grievor's evidence that she did not go to the Tire Hortons, located close
to Ms. Stevens' residence, between 6:00 a.m.. and 6:30 a.m. She testified that if she
stopped there, it would be closer to 9:00 a.m. The grievor denied the allegation that she
followed Ms. Stevens out of the Tian Hortons once the latter left in her vehicle. She
acknowledged that she was aware Ms. Stevens regularly went to this particular Tim
[118] I was not provided with specific dates on which the conduct complained of may
have occurred. I was left with the impression that any incidents of visual contact, if they
occurred, happened subsequent to the grievor's purchase of her new vehicle in
November, 2011.
[ 1191 In her evidence, Ms. Stevens referenced an incident which occurred while she was
working in the Supported Independent Living Program. Vhile working in this Program,
she supported a person who did his banking at the TI) Canada Trust location in the
Tillsonburg Mall. Ms. Stevens testified that on one (1) occasion, they did the necessary
banking at that branch and then went to Tiro Hortons for a coffee. mer that, she and the
supported person went to Walmart to shop. Ms. Stevens testified that the grievor was
present at all three (3) of the locations visited. Thereafter, she reported the incident to her
67
Manager. She indicated that her report about same was prepared in late April, 2012. It
was the grievor's evidence that she did not see Ms. Stevens, nor did she go to the Mall,
on the day in issue. The grievor stated that she might possibly have gone to the Metro
Store, across the street from the Mall.
[120] It is unclear fiom the evidence as to precisely when the above-described incident
occurred. As mentioned, Ms. Stevens' report about it was prepared, filed or
communicated in late April, 2012. 1 was initially left with some uncertainty as to
whether this incident occurred around that time or whether it occurred earlier and was
simply reported at a later date.
[121] As mentioned earlier, Ms. Fehnnan was summonsed to provide evidence on behalf
of the Employer. Ms. Fehrman and the grievor worked together at the Glendale Street
Horne between late July 2011 and late January, 2012.
[122] It was the gist of Ms. Fehrman's evidence that she felt uncomfortable working with
the grievor, as the latter spoke repeatedly about her relationship with Ms. Stevens. Ms.
Fehrman referenced conversations she had with the grievor, while at work, about the
following: the grievor bringing coffee for Ms. Stevens while the latter was working; gifts
that the grievor bought for Ms. Stevens, a newspaper article featuring Ms. Stevens'
fundraising efforts for victims of tornado which struck Goderich in August, 2011; and
an invitation by the grievor to Ms. Stevens to go to a play with her. Ms. Fehrman
testified that the grievor's comments about Ms. Stevens were "completely random" and
a iA
"out of nowhere literally". In her words, "it was the conversation topic that always came
up»
[123] Ms. Fehrman recalled that on one (1) occasion in the late Fall of 2011, the grievor
reported for work at the Glendale Street Hone and appeared to be "off and very down".
This led her to ask the grievor if everything was okay. It was Ms. Fehrman's evidence
that the grievor then told her she had a friend who no longer wanted to remain friends
with her, and that she did not understand why that was happening. Ms. Fehrman stated
that, to the best of her recollection, the grievor did not then identify Ms. Stevens as the
friend she was speaking of. In the notes Ms. Fehrnnan subsequently prepared, she wrote
that the grievor said she would not stop until she found out why her friend was doing this
to her. Ms. Fehrman advised that her responses to the grievor were always brief and that
she "never fed into the conversations". She reiterated that the conversations made her
feel uncomfortable and that she did not want to be a part of them. Ms. Fehrman
described them as "awkward" and "obsessive".
[124] Ms. Fehrman testified that she did not tell the grievor that she was a friend of Ms.
Stevens. She further stated that she did not inform Ms. Stevens about what the grievor
was saying about her at work. Ms. Fehrman indicated that she and Ms. Stevens had an
understanding that they would not discuss the status .of the latter's friendship with the
grievor. She was aware, however, from gossip and from others that things were
happening in the relationship. IVIS. Fehrman said that she put "two and two together" and
thought that the relationship had changed for the worse. Ms. Fehrman's discomfort with
the situation led her to speak with her Manager on three (3) or four (4) occasions.
[125] Prior to February, 2012, Ms. Fehrman lived on Morning Glory Drive in
Tillsonburg, about two (2) blocks away from Ms. Stevens' home. She advised that her
street was the last one in the subdivision and that, at the time, there were only three (3)
houses on it. Ms. Fehrrnan testified that she had seen the grievor in the vicinity of her
home on multiple occasions. In her words, "it was up to five, I believe". Ms. Fehrman
provided the following examples:
i) She and the grievor were working together on overlapping shifts. Just
prior'to the end of her shift at 5:00 p.m., the grievor stepped out to get a
coffee. The grievor had not returned by the time Ms. Fehrman was
finished her shift. Ms. Fehrman testified that as she turned into her
subdivision, she observed the grievor driving out. It was her evidence
that she saw the grievor and that she was driving a red SW at the time.
Ms. Fehrman was unsure if the grievor had seen her. She noted that a
couple of days later, the grievor asked her if she lived on Morning Glory
Drive. From a review of Ms. Fehrman's notes, her observation was
likely made in late November, 2011;
H) On another occasion during the last week of November, 2011, Ms.
Fehrman was similarly turning into her subdivison after completing her
shift. Again, she observed the grievor driving out of the subdivision.
Ms. Fehrman maintained that this occurred at a time the grievor was
supposed to be at work.
Ms. Fehrman subsequently provided a statement to Constable Lester on January 29,
2012.
[126] The grievor testified that she did show Ms. Fehrman the newspaper article
referenced above around the end of September, 2011, and asked whether her co-worker
70
had seen it. It was her recollection that Ms. Fehrman did not say much of anything about
the article. The grievor stated she mentioned to Ms. Fehrman that Ms. Stevens 'looked
"pretty" in the photograph attached to the article. It was her evidence that the subject of
the article was never again discussed with Ms. Fehrman.
[127] The grievor advised that she bought gifts for Ms. Stevens while she was in Florida
in November, 2010. She testified that she gave them. to Ms. Stevens in April, 2011 for
her birthday. The grievor denied that she spoke to Ms. Fehrman in July or August, 2011
about hoping Ms. Stevens would like the gifts. She, stressed that, at that point, the gifts
had already been given to Ms. Stevens.
[128] The grievor acknowledged that she did have a conversation with Ms. Fehrman
about a friend who wanted to end their relationship. She maintained that she did not then
identify IVIS. Stevens as the person she was referring to. The grievor denied telling Ms.
Fehrman that she would not stop until she found out why her friend was doing this to her.
The grievor did acknowledge that Ms. Stevens' name could have come up in her
conversations with Ms. Fehrrnan while they were working together. In her words,
however, they did not discuss "her business" with Ms. Stevens.
[129] The grievor further denied that she drove in Ms. Fehrman's subdivision around the
end of November, 2011. She noted that, by then, she had been spoken to by Constable
Lester and directed not to be there. The grievor also disputed Ms. Fehrman's statement
that she asked if Ms. Fehrman lived on Morning dory Drive. She stated that she already
71
knew where Ms. Fehrman resided and that she probably learned that directly from Ms.
Stevens. The grievor asserted that Ms. Fehrrnan was mistaken with respect to her
evidence about having seen her in the subdivision. She also suggested that Ms. Fehrman
may have fabricated this evidence, as she was a friend of Ms. Stevens. The grievor
advised that she was aware of their friendship. She agreed, however, that she did not
know why Ms. Stevens would cause another person to perjure themsel£
[ 13 0] On December 14, 2011, the grievor contacted the Potters Road Home by telephone
in search of ccrtain information. Ms. Stevens, who was working at the Horne, answered
the call. The grievor claimed that she had no idea, prior to initiating the contact, that Ms.
Stevens was working there that day. On December 19, 2011, the grievor asked Tanya,
another employee at the John Street Home, to contact the Potters road Home and arrange
for a resident there to be brought to John Street for lunch with another supported person
on the following day. It appears from the evidence that Tonya spoke to Ms. Stevens and
arranged for her to take the individual to the John Street Home on December 20, 2011.
The grievor testified that she asked Tonya to make the initial call, as she knew that Ms.
Stevens was working at the Potters Road Home that day. It was her evidence that she did
not know that Ms. Stevens would be working there on December 20t'.
[13 1] Ms. Hudson net with Ms. Stevens about these contacts on December 19, 2011.
She asked a Manager to look into the latter contact to determine if it had been
"orchestrated" by the grievor. Ms. Hudson followed up with a meeting with the grievor
72
on December 20, 2011. It is unnecessary to review these two (2) contacts in any greater
detail, as Ms. Hudson advised that they did not factor into the decision to terminate the
grievor's employment. She accepted the grievor's explanation that she did not know Ms.
Stevens was working at the Potters Road Home on the relevant days. What is significant,
however, is that at the December 20th meeting, Ms. Hudson decided that if the grievor
needed to contact, or make arrangements with, staff at another Home, it would be done
through a Manager and not by the grievor directly. It was her hope and expectation that
this protocol would eliminate the chance of inadvertent contact between the grievor and
Ms. Stevens. Ms. Hudson informed the grievor that this would be the required process
going forward. I note that Ms. Matthews, ultimately, took the supported person to the
John Street Dome for lunch on December 20"h.
[132] The grievor testified that the directive given to her at the meeting of December 20,
2011 was overly restrictive. She believed that it prevented her from doing her job, as she
had to rely on others. The grievor was also concerned that no time limit was placed on
the directive as to how she was to communicate with staff at other Homes. In her view,
the protocol was unnecessary, as the direct contact she had with Ms. Stevens on
December 14, 2011 was professional. The grievor's concerns led directly to the meeting
of January 17, 2012.
[133] The meeting of January 17, 2012 was scheduled at the request of the grievor. Ms.
Hudson and Ms. Stefan attended for the Employer. The grievor, Mr. Loftus and Ms..
73
Nancy John, the Local Union President, were there on the Union's behalf. The grievor
was represented by Mr. Loftus at the meeting, as the regular ®PSEU Staff Representative
for Local 16 1, Mr. Tom Watson, was advising Ms. Stevens. This was Mr. Loftus' first
meeting with the grievor.
[134] At the meeting, Mr. Loftus expressed concern about the extent of the restrictions
which had been imposed on the grievor and that there was no time limit established for
their expiration. My sense of the evidence is that he was addressing both the directive of
December 20, 2011 and the prior Safety Plan. With respect 10 the latter, Mr. Loftus was
concerned that a breach could easily occur given that the grievor went out into the
community on a regular basis as part of her job. He noted, in this regard, that Tillsonburg
is a relatively small community and that, as a consequence, contact between the grievor
and IVIS. Stevens could be anticipated. Can the evidence, Ms. Hudson clarified for Mr.
Loftus why the restrictions had been put in place. Both the grievor and Mr. Loftus
testified that Ms. Hudson was uncertain how long the restrictions would remain in effect,
Ms. Hudson did inform Mr. Loftus that the grievor had to cease her offending behavior
and, if she did so, the restrictions were likely to be lifted sooner rather than later.
[135] It is apparent that at the meeting of January 17tH, Mr. Loftus proposed a form of
mediation through the Union's Equity Unit. He advised that staff from the Unit can be
resorted to for purposes of addressing conflicts between members of the Union. He
further advised that members have to agree on the process, as the Union cannot compel
74
them to participate. Mr. Loftus explained that, for this reason, there is a need for
Employer "buy -in", as the Employer does have the authority to compel participation. It
was his recollection that while the Employer expressed some interest in the proposal, it
made no commitment at the time. The grievor testified that she was willing to participate
in the suggested process and said so at the meeting. She made the following related
comment: "I was willing to do whatever it took to have the situation rectified". Ms.
Hudson, in her evidence, confirmed the grievor indicated that she would agree to the
involvement of the Equity Unit.
[ 136] Ms. Hudson testified she told Mr. Loftus that she would ask Ms. Stevens if she was
interested in the process suggested by the Union. She subsequently did approach her
about the issue. Ms. Hudson recalled that Ms. Stevens wanted to look into the possibility
of using the Equity Unit to resolve the matter. It was her evidence that she heard nothing
further from. Mr. Loftus with respect to his proposal. Mr. Loftus testified that he did
speak to Mr. Watson about resorting to the Equity Unit. He was unaware if Mr. Watson
communicated with Ms. Stevens about this option. Mr. Loftus noted, however, that Ms.
Stevens said `very quickly" that she was not interested in the suggested approach. His
evidence seems to suggest that this was communicated to hien by the Employer.
[137] Ms. Stevens testified that she did, in fact, speak to Mr. Watson about the potential
to use the Equity Unit to resolve the problem. She stated that he suggested she speak to
the Unit. A conference call was subsequently held amongst Ms. Stevens, Mr. Watson
75
and a representative of the Equity Unit. The evidence is very unclear as to why this
process was not pursued. I note Ms. Stevens' comment in cross-examination that the
Employer did not recommend the Union become involved in the dispute between two (2)
members. In the final analysis, I am left uncertain as to who actually made the decision
not to resort to the services of the Equity Unit.
[ 13 S] Constable Lester took a second video statement from Ms. Stevens on January 10,
2012. She did so in order to capture incidents which had occurred following the first
statement. Constable Lester also obtained a written statement from Ms. Roden on
January 11, 2012. It was Constable Lester's impression that at this time Ms. Stevens
exhibited a willingness to participate in a judicial process. She, herself, thought that the
situation was then headed towards the laying of a criminal charge.
[139] Ms. Stevens testified that prior to October 17, 2011, the grievor caused her
"emotional harm". She referenced "many sleepless nights" and that she had to worry
about her children and seek counselling. Ms. Stevens was crying when she gave this
evidence during her examination in -chief. When asked why she was tearful, she replied:
"Because I've been holding it in for a long time. All I ever wanted was for her to just
leave ane alone". Ms. Stevens reiterated that she became more fearful after October 17t`.
She added that by December, 2011 she was "very cautious and concerned", and was
looking over her shoulder. Ms. Stevens acknowledged that the grievor never caused her
76
physical harm in the period from the onset of the friendship to the date of her evidence in
this case.
[140] As mentioned, a charge of Criminal Harassment was laid against the grievor on
January 22, 2012. The conditions for her release that day have been previously set out.
Constable Lester indicated that it was her call to not require a bail hearing. In her
judgment, there were no "imminent safety concerns" to prevent the grievor's release.
Constable Lester advised that it is an automatic condition of release for a person to
surrender their firearms possession -acquisition licence. I note from the evidence that
while the grievor had such a licence, she did not actually possess a firearm. She advised
that hunting had been one (1) of her interests since 1999.
[ 141 ] As stated, one of the other conditions of release was that the grievor not
communicate directly or indirectly with Ms. Roden. The grievor testified that she was
shocked to see this condition as Ms. Roden was a close friend and the issue involved Tills.
Stevens, not Ms. Roden. The Employer subsequently issued a Safety Plan for Ms. Roden
dated February 2, 2012. The "Issue" was defined therein as follows:
"Beccy has given a statement to the Ontario Provincial Police
with respect to an ongoing harassment issue. As a result of the
investigation and subsequent charge, a protection order has now
been issued for Beccy. The employer is providing a plan to
ensure that Beccy's protection order is followed and that she
feels safe within her workplace."
77
It is unnecessary to reproduce this Safety Plan in its entirety. On its face, it sets out
provisions to ensure that IVIS. Foden and the grievor did not work together at the same
location and to minimize any contact between thein when out in the community.
[1.42] The grievor provided a total of six (6) medical notes to the Employer between
January 24h and May 13�, 2012. All were completed by Dr. R.J. Wahby, her personal
physician. The evidence with respect to these notes is set out below.
[143] The grievor saw Dr. Wahby on January 24, 2012. Dr. Wahby provided her with a
medical note which read as follows:
"Please be advised that my patient Felly Oliver is off work
January 24, 2012 until further notice. She will be reassessed in
two weeks.
If you have any questions please do not hesitate to call."
The grievor provided this note to the Employer. It was her evidence that the Employer
did not ask for any greater detail. Ms. Hudson agreed that the Employer accepted this
first medical note. Dr. Wahby did not prescribe any medication for the grievor on this
first visit.
[144] The grievor testified that, following the criminal charge, she was in a state of shock
and was very upset and anxious. She added that she then had difficulty sleeping and had
a reduced appetite. It was her evidence that she spent a lot of time at home alone in the
two (2) week period after the laying of the charge. The grievor indicated that, in effect,
she had closed herself off from her friends. She advised that she had never been in
M
trouble with the law before and was scared, as she did not know what was going to
happen.
[ 145] On February 2, 2012, Ms. Stefan forwarded a letter to the attention of the "Treating
Physician". The letter reads, in part:
"Community Living Tillsonburg provides employees who have
suffered from illness or injury with an opportunity to return to
work as early as possible by providing modified and or
alternate duties.
We are willing to accommodate restrictions you feel are
necessary to assist in Kelly's recovery, rehabilitation or any
treatment program she may be involved in.
Prior to a return to work we require the attached form to be
completed by yourself to ensure that Kelly is returning in a safe
and healthy planner as to not put herself or the people she
supports at risk.
17
.................................................. I..................
[1461 Dr. Wahby completed the form referenced above on February !, 2012 and returned
same to the Employer. Dr. Wahby advised therein that the grievor was not able to return
to work at that time; the estimated duration of time off was six (6) weeks; there was no
specialist or further testing pending; and the date of his next appointment with the grievor
was March S, 2012. Ms. Hudson testified that the Employer did not ask for any further
information on receipt of this medical note. More specifically, the Employer did not ask
for an independent medical assessment. It was the grievor's evidence that she felt the
same as she did on January 24'1, the date of the initial medical note.
79
[147] Dr. Wahby's next medical note is dated March 5, 2012. He, again, submitted his
report using the Employer's form. He advised that the grievor was not able to return to
work at that time; the estimated duration of time off was one (1) month; there was no
specialist or further testing pending; and the date of his next appointment with the grievor
was April 1, 2012. This appointment- was later changed to April 2, 2012 given that April
1St was a Sunday. The grievor testified that, at this time, she continued to experience
anxiety, sleepless nights and decreased appetite. She agreed that there were no physical
limitations and that she was not prescribed any medications. Ms. Hudson testified that
the Employer did not ask the grievor or Dr. Wahby to provide any additional information,
and that no request was made for an independent medical examination.
[ 148] Dr. Wahby provided a further medical note on April 2, 2011 The note simply
stated that the grievor could return to work on May 5, 2012. The grievor stated that she
continued to experience significant stress and anxiety in this period, as her Court
appearance was scheduled for April 17, 2012. It is clear that by April 2, 2012, the
grievor was aware that the issue would be resolved by way of a Peace Bond. In cross-
examination, the grievor was asked why she would experience stress and anxiety if she
knew about how the criminal charge would be resolved. In response, she stated that she
felt anxious because she thought Ms. Stevens might deliberately try to put her in breach
of any imposed conditions. The grievor added that her feelings of anxiety were
M
augmented by embarrassment about the situation and fear about the possibility of
returning to work and having to deal with co-workers.
[149] IVIS. Hudson testified that she was not directly involved with the grievor's situation
in early April, 2012, as she was in the Acting CEO position. She advised, however, that
discussions were taking place, at the management level, as to whether the grievor would
be returning to work.
[150] Dr. Wahby provided a further medical note dated May 1, 2012 to the Employer.
He advised therein that the grievor was not fit to return to work and that she would be
reassessed in two (2) weeks. The grievor explained that her anxiety was getting stronger,
she was nervous about returning to work, and was worried that Ms. Stevens might start to
make allegations again. The grievor stated that the latter could result in her going to jail,
if there was any breach of the terms of the Peace Bond. She testified that at or around
this time,, Dr. Wahby prescribed Cipralex for anxiety and depression. It was Ms.
Hudson's evidence that the decision to terminate the grievor's employment had already
been made as of May 1 s`.
[151] The grievor advised that she received EI sick benefits through Service
Canada commencing in mid-March, 2012. She observed that Service Canada
never questioned her entitlement to this benefit. For the sake of completeness, I
note that Dr. Wahby completed a medical form dated May 13, 2012 in aid of the
grievor's application to Manulife Financial for LTD benefits. This application and
81
a fin they appeal were both denied. On the form, Dr. Wahby identified his
diagnosis as severe anxiety and the subjective symptoms as including anxiety and
insomnia. He further recorded that the grievor's symptoms were "getting more
severe" and that her personal problems were mounting. Dr. Wahby also noted that
she might get a psychiatry consult.
[152] Ms. Moore and Ms. Mary Oliver, the grievor's mother, both testified as to the
changes they observed in the grievor after the laying of the criminal charge. Their
evidence may be summarized as follows:
i) Ms. Moore stated that she did not go to the grievor's home for
three (3) to four (4) days after the charges were laid, as the grievor
did not want any visitors. Over that period, Ms. Moore
communicated with the grievor by telephone. When she did visit
the grievor, Ms. Moore formed the impression that the grievor was
not herself More specifically, she observed the following: the
grievor's appearance was not normal and she was wearing baggy
clothes and tracks pants; the house was not neat and tidy; and there
were dishes and laundry all over the place. Ms. Moore described
the grievor's attire and the condition inside the home as "totally
out of character". She also noted that the grievor looked extremely
tired and that her face was red and swollen. The latter led Ms.
Moore to conclude that the grievor had been crying. Ms. Moore
indicated that she saw the grievor in her home on two (2) to three
(3) occasions in the two (2) week period after the charge was laid.
It was her assessment that nothing changed over that period. She
maintained that the grievor continued to be very upset as far along
as April and May, 2012; and
ii) Ms. Oliver stated that she personally saw her daughter within a
week of the charge being laid. She described her then as being
very upset and devastated. Ms. Oliver testified that the grievor
complained of an inability to sleep, weight loss, nightmares and
migraine headaches. She Af uther noted that the grievor dial not
82
want to go anywhere, as she was afraid of running into coworkers.
In her experience, this was a significant change in her daughter's
behavior, as formerly she was out of the house all of the time
socializing with friends, attending sporting events or going on
holidays. Ms. Oliver recalled that things did not change until June
or July, 2012 when the grievor then started to go out a bit more.
[153] Returning to the month of February 2012, the next important development was the
issuance of Safety Plan #3 dated February 22, 2012. The Plan reads:
"Employee Name: Jan Stevens
Issue: Jan has been harassed by a coworker,
Kelly Oliver. This has resulted in
Kelly being charged with criminal
harassment by the Ontario Provincial
Police. The employer is providing an
updated plan to capture the conditions
of Kelly's release.
Date: Ongoing since the Spring of 2011
Reported October 18, 2011
Charged with condition of release
dated January 22, 2012.
Concerns: Kelly has been charged with Criminal
Harassment and has been off work
since. There remains a concern for -
Jan's safety.
Workplace Actions: 1) Currently Kelly is off work. She
will be given notice that she is not to
come on to any of the properties
owned by Community Living
Tillsonburg while she is off work.
Prior to any return to work, there vAll
be a meeting with the employer.
83
2) If Jan has any contact with Kelly at
a work location, she is to call 911
immediately. Should Jan and Kelly
meet at any location, it is Kelly's
obligation to leave immediately or Jan
will call the Police.
3) Should Jan discover that while out
with people, she is being followed by
Kelly, Jan is to drive directly to the
police station.
4) While working, Jan is to keep
doors locked and outside lights on
after dark. Jan will have access to a
staff carrying a cell phone. She will
call before she leaves her shift and
upon her return home. All staff who
use the cell phone will be advised of
this protocol.
5) When entering the building at 51
Brock Street at night, Jan will use the
front door. She will be able to park
out front. The street is well lit. A
sensor light will turn on as Jan
approaches the building. Upon
entering the building, the light switch
is located directly inside the door. Jan
will turn on the light before entering
the building. Jan can do a visual
check of the upstairs prior to going to
the downstairs office, If Jan does not
enter the code to the building, an
alarm goes off and Police are
dispatched.
Should you have any unwelcorned or unwarranted contact with
Felly while at work, you will continue to report this to either
Cathy Hudson or Marni Stefan.
84
....................................................................
�9
[154] In cross-examination, Ms. Hudson acknowledged the Employer had
determined by February 22, 2012 that the grievor had harassed Ms. Stevens. When
confronted with the fact that no discipline had been imposed to that date, Ms.
Hudson replied, "perhaps we gave her too many chances".
[155] Ms. Hudson subsequently sent a letter to the grievor dated February 24,
20125. the material part of which reads:
L4
As a result of your conditions for release you will not attend
any location owned or operated by Community Living
Tillsonburg at any time for any reason. If you do attend, the
police will be called and you may be charged with trespassing.
As you are currently on a medical leave you have no reason to
attend any location. To update your medical infonnation larch
5, 2012, you may send your updated medical information in
with a union steward.
If the medical information is a return to work then I will call
you and set up a time and location to meet and discuss next
steps.
[156] The grievor testified that following the receipt of the above letter, she has not gone
onto any property owned or operated by Community Living Tillsonburg, subject to one
(1) exception. In the latter instance, the grievor was apparently given permission to be on
the Employer's property for reasons related to this case.
F, y
[157] The next incident of significance occurred at a Special Olympics Basketball
Tournament held on February 25, 2012 at Glendale Nigh School in Tillsonburg. Ids.
Stevens, Ms. Matthews, Ms. Ashkanase and the grievor all presented evidence about
what transpired that day. Their respective accounts of the events are set out below.
[158] Ms. Stevens testified that she was asked to support a person for the first half of the
Special Olympics Basketball Tournament on Saturday, February 25th. She advised that
she had previously supported this person, but that she had not originally been scheduled
for this Saturday shift. lis. Stevens stated that she voiced concern to the Employer about
the possibility of the grievor attending at the tournament. She was aware that the grievor
had been involved. with Special Olympics as a volunteer and that she had supported
individuals at its events. FIs. Stevens indicated that she was told the Employer would
arrange to have a Manager on site while she was working at the tournament.
[ 159] Ms. Stevens stated that after the first game, she went outside to the parking lot to
have a cigarette. It was her evidence that while there, the grievor drove by on Glendale
Street. Ms. Stevens claimed that the grievor saw her standing outside and that she
observed the brake lights on the grievor's vehicle come on almost immediately thereafter.
Ms. Stevens then returned to the gym for the start of the next game. It was her
responsibility to run up and down the basketball court with the supported person. Ms.
Stevens observed the grievor enter the gyms and proceed to a spectators' area on the stage.
She also saw the grievor interact with Ms. Ashkanase, a co-worker. IVIS. Stevens
acknowledged that the grievor never attempted to communicate with either her, or the
person being supported, while she was in the gym. She estimated that the grievor was on
the stage for approximately ten (10) minutes. It was her recollection that the grievor did
not stay very long at the tournament. Ms. Stevens advised that she reported her
observations to Ms. Matthews, who was the Manager on site, and that she also
telephoned Constable Lester while the grievor was still in the gyre. The Police did not
attend at the tournament, as they were responding to an emergency situation.
[ 160] Ms. Matthews advised that she asked Ms. Stevens to support the individual at the
Special Olympics Basketball Tournament. That individual had recently moved to a new
Hone and staff there had never supported hire over the course of a full day tournament,
whereas Ms. Stevens had previously worked with this person. Ms. Matthews noted that
the two (2) full-time staff at the individual's Home were needed there that day, and that
there was a shortage of casual staff to backfill for them.. As a consequence, she elected to
ask Ms. Stevens to take the assignment. Ms. Stevens agreed to the request. Ms.
Matthews noted, however, that Ms. Stevens became anxious about the tournament, a few
days in advance of same, as she feared the grievor might attend given her prior
involvement with Special Olympics. Ms. Matthews assured Ms. Stevens that she would
"pop over as moral support".
[161] Ms. Matthews testified that she arrived at the tournament after Ms. Stevens and the
supported person got there. After the conclusion of the first game, she observed Ms.
97
Stevens leave the gyre. It was her evidence that Ms. Stevens returned within a matter of
minutes and that she was upset and concerned, as a consequence of having seen the
grievor's vehicle drive by the parking lot. Ms. Matthews recalled that she offered some
reassurance to Ms. Stevens and told her that, hopefully, the grievor would not come into
the building.
[ 162] On their return to the gym for the second game, Ms. Stevens went directly to the
team. bench. IVIS. Matthews proceeded to the front left side of the stage to watch the
game. At one port, IVIS. Ashkanase carne over and spoke with Ms. Matthews for a few
minutes. Subsequent to this short exchange, Ms. Matthews observed that Ms. Stevens
was attempting to get her attention. She formed the impression that Ms. Stevens was
trying to indicate there was some problem up on the stage. She noted that Ms. Stevens
was nodding and pointing in that direction with her cell phone. It was Ms. Matthews'
assessment that IVIS. Stevens then seemed agitated and afraid. At that juncture, Ms.
Matthews loafed around but did not see anything unusual. She then proceeded down to
the gyne floor and sat with Ms. Stevens on the team bench. Ms. Matthews testified that
Ms. Stevens then told her she had seen the grievor on the stage talking to Ms. Ashkanase,
behind and to the right of where Ms. Matthews had been sitting. lifter learning of this,
Ms. Matthews walked through the school and then went out into the parking lot. It was
her evidence that she did not see the grievor inside or outside of the school. On her
return, Ms. Stevens advised her that she had contacted Constable Fester about the
88
situation and that she would be coning to the school. As mentioned above, this did not
occur, as the Police had to attend to another natter elsewhere.
[163] While on a subsequent break, Ms, Matthews, Ms. Stevens and the supported
individual decided to go to a nearby Tim Hortons for a coffee. While driving there in
Ms. Stevens' car, Ms. Stevens told Ms. Matthews that she saw the grievor's vehicle a few
cars back. It was MIs. Matthews' evidence that she turned around but did not see the
grievor. She advised that she was aware the grievor drove a red burgundy vehicle, but
did not know the make or model. hos. Matthews recalled that, as they pulled into the Tire
Hortons Drive -T ru, Ms. Stevens commented that the grievor's vehicle was no longer
behind them. As the group was leaving Tin? Hortons, Ms. Stevens advised that she saw
the grievor's vehicle in a Burger Ding parking lot. Apparently, that lot is shared between
Burger Ding and Tim Hortons. At the time, Ms. Matthews observed a red burgundy SUV
in the parking lot. She did not see the grievor.
[164] Following the return to Glendale High School, Ms. Matthews noticed that Ms.
Stevens was "visibly upset" and anxious. As a consequence, she arranged for other staff
to relieve Ms. Stevens for the balance of the shift. Ms. Matthews testified that she did not
see the grievor at all that day. She further stated that, as of February 25', she had no
knowledge that the grievor should not have been at the tournament. Ms. Matthews later
learned that the grievor was not permitted to be in close proximity to Ms. Stevens. Ms.
89
Matthews advised IVIS. Hudson by email of February 25"' about what had occurred that
[165] Ms. Ashkanase advised that she was at the Special Olympics Basketball
Tournament to support two (2) individuals through VON Special Services. She was not
there representing Community Living Tillsonburg on that particular day. It was her
evidence that the grievor came and sat beside her on the stage. it is clear that IVIS.
Ashkanase and the grievor were friends, albeit they had not spoken to each other for a
considerable period of time. Early on during their exchange, Ms. Ashkanase asked the
grievor if she was working that day, in response to which the grievor replied, "No,
haven't ,you heard?' Ms. Ashkanase then asked the grievor what she was talking about.
It was her evidence that the grievor proceeded to inform her she was not working and that
there was a charge pending against her. IVIS. Ashkanase, who was unaware of these
developments, asked the grievor for greater clarification about her situation. IVIS.
Ashkanase stated that the grievor then replied, "because of that bitch with....". At that
specific point in time, Ms. Stevens was moving down the basketball court with the
supported person. 'while Ms. Ashkanase knew this individual, she did not then know, or
recognize, lis. Stevens. It was her further evidence that the grievor also said, "Let me
know if that bitch goes for the phone" and pointed over towards Ms. Matthews. IVIS.
Ashkanase stated that she reiterated to the grievor that she did not know what she was
speaking about. Ms. Ashkanase recalled that she then changed the subject and that the
ME
conversation shifted to social and recreational activities which she and the grievor
formerly engaged in together. While she described the conversation as "low key", she
advised that it made her somewhat uncomfortable. Ms. Ashkanase believed that her
exchange with the grievor lasted for about ten (10) minutes at most.
[166] Ms. Ashkanase subsequently met the grievor again that morning at Burger Ding.
She recalled she told the grievor that she and the individuals she was supporting were
going there for breakfast and that she left it open as to whether the grievor wanted to join
them. Ms. Ashkanase sensed the grievor then realized that she had no idea of what had
transpired between her and Ms. Stevens. Ms. Ashkanase advised that she and the grievor
did not go into a lot of detail during this second conversation. She remembered that the
grievor mentioned the name of Constable Lester and that the latter had required her to
surrender her firearms licence. More importantly, Ms. Ashkanase testified that the
grievor told her there were a number of people who knew about the problems between
her and Ms. Stevens, and that she would find out who they were. She noted that the
grievor did not elaborate on this assertion. While it is somewhat uncertain from Ms.
Ashkanase's evidence, I accept that this was a reference to those individuals who may
have given statements to Constable Lester during her investigation. Ms. Ashkanese
stated that after having a "light chat", the grievor left. She maintained that she had no
further contact with the grievor after pebruaty 25, 2012 vis a vis subject matters of
relevance to this proceeding.
91
[167] Ms. Ashkanase testified that she started to feel uneasy, after returning home, about
what the grievor had said concerning Ms. Stevens and Ms. Matthews. In her words, she
thought, "there is something not right here". As a consequence, she spoke to her
Manager on the following Monday and apprised him as to what had occurred at the
basketball tournament. Ms. Ashkanase met with her Manager a second time about a
week later. She subsequently signed a document confirming the details of her
communication with. the Manager. Ms. Ashkanase understood that he would be
submitting a report to the Employer concerning her involvement with the grievor on
February 25f
[168] Ms. Hudson testified that she learned about what had occurred at the basketball
tournament on the following Monday, February 27, 2012. It was her evidence that she
was concerned about two (2) matters. First, she was alarmed about what the grievor was
alleged to have said to Ms. Ashkanase. She perceived it as "heightening the threat".
Second, Ms. Hudson believed that the grievor should not have been out in the community
socializing at a time she was off work on sick leave.
[169] The grievor testified that she arrived at the Special Olympics Basketball
Tournament at around. 10:00 a.m. on February 25"'. She stated that she did not see MIs.
Stevens when she drove into the parking lot of Glendale Nigh School. The grievor
denied that she drove by the school and then activated her brakes on seeing Ms. Stevens.
She maintained that she intended to attend the tournament from the outset. The grievor
92
explained that she had served as a volunteer for Special Olympics for six (6) years and
had always attended the basketball tournament held annually in Tillsonburg.
[1 i0] The grievor entered the gym by way of the stage area. She observed that Ms.
Ashkanase and Ms. Matthews were on the stage. The grievor then approached the former
and started a conversation with her. During their exchange, the grievor informed Ms.
Ashkanase that she was off work at that time. She recalled that Ms. Ashkanase then
asked as to why that was the case. It was the grievor's evidence that, at that very
moment, she observed lis. Stevens sitting on the team bench. She admitted to answering
Ms. Ashkanase's question with the following continent: "because of those bitches". The
grievor explained that she was referring to both Ms. Stevens and Ms. Matthews. She
admitted in cross-examination that she was then angry at both of them. The grievor
advised that she previously had a run-in with Ms. Matthews at a staff meeting and that
they did not agree with respect to the transfer of a specific resident to another Home. The
grievor testified that as she made the above-mentioned comment, she observed Ms.
Stevens pull out her cell phone and start to make a call. She indicated this made her
uncomfortable and she, therefore, elected to leave the gym. The grievor claimed that she
felt Ms. Stevens was in the process of contacting the Police and was concerned that she
may have been in breach of the terms upon which she was released. on January 22, 2012.
The grievor stated that she left the gym just as the game was about to start. On her
account, she was there for only five (5) to ten (10) minutes in total. She denied telling
93
Ms. Ashkanase while there to alert her "if that bitch", meaning Ms. Matthews, went to
her cell phone.
[171] It was the grievor's evidence that she did not expect to see Ms. Stevens working at
the basketball tournament. She emplasized that the person being supported that day had
his own staff supports in the Horne where he lived. The grievor also noted that casual
staff, such as Ms. Stevens, did not routinely work out of that Home. In cross-
examination, the grievor stated she felt Ms. Stevens may have intentionally tried to entrap
her by taking the shift on February 25'11. The grievor insisted that Ms. Stevens would
have known that she was likely to attend the tournament, as she had done in prior years.
[172] The grievor agreed that she later met up with FIs. Ashkanase at Burger King. She
noted that they sat separate and apart from the individuals Ms. Ashkanase was supporting
that day. The grievor there advised Ms. Ashkanase that she was off work as a result of a
criminal charge. She felt that she could share this information with her friend. In the
grievor's words, "the charges were mine". The grievor further advised Ms. Ashkanase as
to some of the history behind the police involvement and the subsequent charge.
Additionally, she told her that a few people had given statements to the Police. The
grievor acknowledged that she then stated she would frnd out who these individuals were.
She stressed that this comment was not intended as a threat, as characterized in the
Employer's letter of termination. It was her evidence that by then she had contacted a
lawyer and knew that she would learn who had given statements through the disclosure
94
process. The grievor acknowledged that she did not expressly use the word "disclosure"
when speaking to Ms. Ashkanase, as at that point she was not aware of the terminology.
She insisted that, instead, she simply said, "I'll find out who they are". The grievor
estimated that she remained at Burger King for approximately fifteen (15) minutes.
[173] The grievor advised that the Tim Hortons location mentioned above is directly to
the north of the Burger King outlet and that both establishments share a common parking
lot. She advised that she purchased a coffee at Tim Horton before going to the
tournament. She did not recall using the give-Thru on that occasion. The grievor
asserted that she did not go into Tim Hortons again that day.
[174] The grievor testified that as of February 25, 2012, she did not think she was
mentally ready to return to work as, at that point, she was still not properly eating or
sleeping.
[175] On March 25, 2012, the grievor submitted a request for Union related time off for
purposes of attending the Union's Convention in Toronto. The Convention was
scheduled for the period Friday, April 20 to Sunday, April 22, 2012. The griever
requested a two (2) day leave of absence. She testified that she made the request in order
to be proactive in the event Dr. Wahby returned her to work following her scheduled
appointment with him on April 2, 2012. As noted earlier, Dr. Wahby provided a medical
note at that appointment indicating that the grievor could return to work on May 5, 2012.
The grievor's request was denied by Ids. Hudson on April 5, 2012. The denial was
.42
premised on the fact the grievor was off on a sick leave. Ms. Hudson testified that she
found it surprising that the grievor would be able to attend the Convention while she was
off sick.
[ 1761 The grievor testified that she decided to attend the Convention. While the
evidence is not entirely clear, it seems as if she travelled to Toronto on the evening
of Thursday, April 19, 2012. This was shortly after the issuance of the Peace Bond
on April 17'h. The grievor stated that Ms. Moore encouraged her to go, as she did
not want her to be alone. On her account, she spent a lot of time in the hotel room
while at the Convention. The grievor advised that she would drop in and out of
meetings, rather than spending the entire day on the Convention floor or at related
meetings. Ms. Moore confirmed that she convinced the grievor to go to the
Convention. It was her evidence that she wanted the grievor to be with people in
the event she wanted to talk about her situation. Ms. Moore also indicated that, in
contrast to other Conventions she had attended at with the grievor, the grievor
spent a lot of time in the hotel room. It was her recollection that at prior
Conventions, the grievor spent the entire day involved in Union activities. Nis.
Moore, IVIS. John and the grievor shared the same hotel room on this occasion.
[177] On April 11, 2012, IVIS. Hudson sent the following email to Ms. Stefano
"This is documentation of an incident that occurred on Tuesday
April 10, 2012 at approx. 7:30 p.m. I was at a Tillsonburg
Minor Hockey AGM which was held at the Community Centre.
Tammy Moore, who is a director gave a report on the local
I',
league tournament held in March 2012. At the end of the report
she said that she wanted to thank all of the volunteers who
assisted her. She noted Kelly diver specifically as a person
who helped her for the whole tournament. There was a
secretary, who documented the meeting ............................"
Ms. Hudson, in her evidence, recalled that Ms. Moore thanked the grievor for
volunteering her time for all three (3) days of the tournament. She stated that the
grievor was not at the meeting at which Ms. Moore made the comment. Ms.
Hudson agreed that she did not speak to the grievor or Ms. Moore about the extent
of the former's involvement in the tournament.
[ 1 7 8] The grievor acknowledged that she helped Ms. Moore with the Tournament,
which was held over a three (3) day period. She testified, however, that she was
not there for the entire time. The grievor stated that, when at the arena, she copied
down scores at the end of each period, watched the odd game, and bought food for
Ms. Moore and her son who was refereeing. Ms. Moore similarly testified that the
grievor was not in attendance for the entire tournament. it was her evidence that
the grievor did a lot of the work from home, such as the preparation of game
sheets. She advised that when the grievor was at the arena, she would move
between ice pads to record the scores and what periods the teams were in. Ms.
Moore considered that the grievor served as an "extra body at the table" when she
had to deal with referees and the time clock.
97
[179] It was the thrust of his. Hudson's concern that the grievor was able to
engage in the above activities at the tournament during a period in which she was
off work on sick leave.
[180] The relevant provision of the Criminal Code of Canada relating to Peace
Bonds is section 810. It reads, in part:
810.(1) An information may be laid before a justice by or
on behalf of awy person who fears on reasonable
grounds that another person will cause personal
injury to him or her to his or her spouse or
common-law partner or child or will damage his or
her property.
(3) The justice or the summary conviction court before
which the parties appear may, if satisfied by the
evidence adduced that the person on whose behalf
the information was laid has reasonable grounds
for his or her fears,
(a) order that the defendant enter into a recognizance,
with or without sureties, to keep the peace and be
of good behavior for any period that does not
exceed twelve months, and comply with such other
reasonable conditions prescribed in the
recognizance, including the conditions set out in
subsections (3.1) and (3.2), as the court considers
desirable for securing the good conduct of the
defendant; .......................................
[18 1 ] The grievor testified that she and her lawyer, Mr. Verner, started to consider
the possibility of a Peace Bond, as a resolution to the criminal charge, in March,
2012. On her evidence, they also considered the option of proceeding to trial, and
98
the risks flowing therefrom, namely a conviction and possible jail sentence.
Following their discussions, the grievor decided that it would be preferable to
proceed by way of a Peace Bond for the following reasons: it would result in a
resolution of the situation; it would avoid the risk of a jail sentence; and it would
reduce the amount of legal fees payable. The grievor advised that her mother,
ultimately, paid Mr. Lerner's bill on her behalf.
[152] In cross-examination, the grievor maintained that she did not know, and had
not been advised, that she had to acknowledge she gave Ms. Stevens reasonable
grounds to fear personal injury as a condition for entering into a Peace Bond. To
be clear, the grievor asserted that she did not know this as of April 17, 2012, the
date she entered into the Peace .Bond. In this regard, counsel for the Employer
confronted the grievor with a transcript of the proceedings of the Ontario Court of
Justice on that day. The material part reads:
"CLERK OF THE COURT: Information number 12-344. This
is the private information of Nancy Vanostaeyen of the Ontario
Provincial Police, occupation special constable. The informant
says that she has reasonable grounds to fear and does fear that
Kelly Lee Oliver, date of birth 1" of May `69 of ..............
Tillsonburg, Ontario, hereafter called the defendant, will cause
personal injury to or will damage the property of Jan Stevens,
on account of an incident that took place between the 1 st of
October 2011 and the 22'd day of January 2012. Do you wish
to show cause why you should not enter into this recognizance?
TEE COURT: You have to say something. Yes, or no?
FELLY OLDER. No. 99
(address omitted)
Notwithstanding the above, the grievor reiterated that she was not aware, as of
April 17, 2012, of what she had to acknowledge as a condition for the issuance of a
Peace Pond. It was her evidence that she only learned of this after the fact.
[183] The grievor maintained that she never gave lis. Stevens reasonable grounds
for fear of personal injury or damage to her property. On this point, she stated: "I
was never any threat to Jan" and `bI did not cause her fear". The grievor accepted,
however, that IIs. Stevens subjectively, and in her own mind, may have felt she
had grounds to fear her. The grievor testified that she never questioned the
conditions set out in the Peace Pond. She explained that she accepted them, as she
wanted to resolve the situation with Ms. Stevens and did not want to go to jail.
[184] Ms. Stevens testified that following the issuance of the Peace Bond, she
occasionally reported potential breaches of the conditions contained therein to
Constable Lester. Constable Lester, in her evidence, stated that no information
was provided subsequent to April 17, 2012 that caused her to believe the teres of
the Peace Bond had been breached. No further charge was laid against the grievor.
[185] Ms. Hudson advised that after the issuance of the Peace Bond, the Employer
started to discuss the status of the grievor's employment with Community Living
Tillsonburg going forward. She recalled that these discussions took place in the
period April 17 to May 1, 2012. Ultimately, a decision was made to terminate the
[till]
grievor's employment. Ms. Hudson spoke of the following matters which
informed this decision:
i) the Employer felt that it could not keep Ms. Stevens safe at work if
the grievor continued to be employed. It believed that the grievor
had, in fact, harassed Ms. Stevens. In Ms. Hudson's words, the
grievor had been given many opportunities to stop;
ii) the situation between the grievor and Ms. Stevens had created a
poisoned work environment. Ms. Hudson advised that there were
two (2) camps within the workplace, one that supported Ms.
Stevens, and another allied with the grievor;
iii) some staff were concerned about the possibility of reprisals if the
grievor returned to work. Other staff reported to lis. Stefan that
the grievor was a bully who intimidated her co-workers. Ms.
Hudson agreed that the grievor was never confronted about the
latter allegation or given an opportunity to respond to same;
iv) subsequent to April 17, 2012, Ms. Stevens continued to report that
the grievor drove by her work locations and was in attendance at
the arena. Ms. Hudson claimed that it seemed as if the grievor was
"almost taunting" the Employer; and
v) there was no medical reason for the grievor to have been off work.
Ms. Hudson ,stressed that there were a substantial number of times
where the grievor was observed out and about in the 'Tillsonburg
community.
All of the above provide context for the content of the letter of termination dated May
7, 2012.
[1561 On all accounts, the termination meeting held on May 7, 2012 was relatively short
in length. In substance, the content of the letter of teimination was reviewed and the
grievor was then informed that she was being terminated by the Employer for just cause.
101
1 note the grievor's evidence that she was not spoken to by the Employer about
allegations of continued harassment of Ms. Stevens in the period April 17 to May 7,
2012. Additionally, the grievor testified that she was only provided seven (7) sessions by
the EAP service provider and. not six (6) months of assistance as offered in the letter of
termination. This matter was not the subject of a complaint to the Union at the time and
is not relevant to the decision required in this case. It, accordingly, will not be addressed
further.
[ 187] Following her termination, the grievor applied for EI benefits. Her application was
denied based on the fact she had been terminated for harassment of another employee.
The grievor elected to appeal that decision to a Board of Referees. She attended an
appeal hearing in July, 2012. No representative of the Employer attended. The Board of
Referees by decision dated July 26, 2012 unanimously allowed the grievor's appeal. A
reading of the decision discloses that the board of Referees found there was no evidence
of harassment, abuse of sick time vis a vis the Employer or Service Canada, or being a
bully in public. In short, that body determined that the grievor "did not commit the
alleged offence of misconduct". The Employer did not appeal this decision.
[ 1 S8] The grievor described the impact she experienced as a consequence of the
termination. Her evidence may be summarized as follows:
i) she suffered financially, accumulated debts and was forced to sell her
SUV. Additionally, she was no longer able to travel and take vacations
as she did previously;
11IN
ii) she could no longer look after a friend's foster children when that friend
went on vacation. The grievor testified Constable Lester told her that the
fact a Peace Bond had been issued against her would be disclosed by a
Vulnerable Sector Police Record Check. She agreed in cross-
examination that she had not sought such a check to determine if what
she was told by Constable Lester was accurate. The grievor also did not
take any steps to confirm with the Childrens' Aid Society that she was no
longer an appropriate caregiver;
411) she could no longer volunteer for Special Olympics as she was unable to
obtain a police clearance due to the criminal charge. In cross-
examination, the grievor agreed that she did not attempt to determine
whether the initial charge and subsequent Peace Bond would render her
ineligible to volunteer. It also became apparent that, for several reasons,
the grievor stopped volunteering for Special Olympics in the Fall of
2011;
iv) the experience with Ms. Stevens has affected her relationships with the
individuals she now works with. The grievor advised that she is now
very cautious of making new friendships and that she currently does not
socialize with co-workers outside of work.; and
v) certain members of management of Community Living Tillsonburg no
longer speak to her.
[1 89] The grievor was asked whether, in retrospect, she took any responsibility for what
occurred with Ms. Stevens. She responded that she thought she could have given Ms.
Stevens "more space" in the friendship. The grievor added that both she and Ms. Stevens
could have done things differently to resolve the situation before it got to the point it did.
[ 1901 The grievor continued to attend Union meetings following her termination. It was
her evidence that while she and Ms. Stevens might interact at the meetings, they did not
`bconverse on the side lines". The grievor stated that there were no problems between
herself and Ms. Stevens when they both attended Union functions. Ms. Moore testified
103
that she has seen the grievor interact with Ms. Stevens at Union meetings. She observed
that, in that type of group setting, both could engage in a one on one conversation about
the issue being discussed. It was the thrust of Ms. Moore's evidence that she had never
seen any conflict between the grievor and Ms. Stevens, Ms. Roden or other employees at
any Union meeting. On a related point, Ms. Moore advised that she and the grievor went
to two (2) funerals, following the grievor's termination, of individuals the grievor had
previously supported. In her view, the grievor's interaction with other staff there, and
vice versa, was polite. She noted that on one (1) occasion, Ms. Hudson asked that she
and the grievor sit with her and other team members rather than sit at a separate table.
[191] Evidence was presented in this proceeding about two (2) matters which occurred
post termination. The first involved a complaint filed by Ms. Moore on May 23, 2012
which accused Ms. Stevens of breach of confidentiality and harassment. The second
related to an incident which occurred in June, 2012 involving an employee by the name
of Linda Gome.
[ 1921 Ms. Moore testified that she was contacted by a number of co-workers who
advised her that Ms. Stevens was providing employees with her version of the situation
involving the grievor. In her complaint to Ms. Hudson, Ms. Moore asserted that this
represented a breach of confidentiality contrary to the Employer's policy. She further
stated therein that what was being communicated by Ms. Stevens had created a poisoned
work environment forherself and one (1) other employee. Ms. Moore alleged that they
104
were being treated differently, and in a negative way, by both co-workers and Managers.
In her words, their behavior made her feel "unwelcomed".
[193] Ms. Moore's complaint led to a meeting with Ms. Hudson and four (4) other staff
on June 19, 2012. Ms. Moore testified that the other staff present refused to speak up and
tell Ms. Hudson about what Ms. Stevens had been comaxnunicating. She recalled that Ms.
Hudson emphasized the need for confidentiality and to eliminate the gossip. A second
meeting relating to this issue was held on June 20, 2012. Present at that meeting were
Ms. Hudson, Mr. Marty Graf, the CEO of Community Living T'illsonburg, Ms. Moore
and Ms. Gonne. The latter, apparently, was not at the earlier meeting, as she had a full-
time day job elsewhere.
[ 1941 Ms. Hudson responded to Ms. Moore's complaint by letter of June 28, 2012. The
letter reads, in part.
LG
On June 19 and June 20, you were involved as we met with the
staff you reported having conversations with Jan or who had
participated in the chain of sharing that information. wring
those discussions it was apparent that the staff who had spoke
with Jan did not expect that you would have reported what they
had told you.
We have asked that all staff involved in your report stop
gossiping. Jan S does have the right to ensure her safety in the
workplace. The peace bond regarding Kelly is factual and if
she is fearful that Kelly will come to her workplace she has the
right to tell a co-worker that she can not come near her.
This letter will also serve as documentation that discussions
took place and that you have been warned to refrain from
105
calling staff by phone, texting and personally asking questions
that entice gossip and breach of confidentiality.
You will also stop encouraging staff who call you, to participate
in gossip, by asking questions instead of redirecting them to
stop or complain to the right person.
Any concerns regarding gossiping at work or breach of
confidentiality are to be reported to the person's manager.
Ignoring this warning and continuing to participate in this
behavior will result in disciplinary action that could include
termination of your employment.
74
[195] Ms. Hudson testified she did not think that Ms. Moore had a valid harassment
complaint against Ms. Stevens. Father, it was her opinion that Ms. Moore's discussions
with other employees were creating opportunities for further gossip about the situation
involving the grievor and Ms. Stevens. It is apparent from the above leiter, and her
evidence in this case, that Ms. Hudson believed Ms. Moore, herself, had breached the
requirement for confidentiality. From her perspective, it seemed that Ms. Moore was
trying to get Ms. Stevens in trouble.
[1.96] Ms. Hudson testified that the second incident involving Ms. Lorne was reported to
her by Ms. Stevens. Ms. Stevens advised Ms. Hudson that Ms. Come told her that the
grievor had asked her if she knew when and where Ms. Stevens was working. According
to Ms. Stevens, Mils. Come, who was working with her at the time, informed the grievor
that she would be working at the John Street Lorne on the night of June 18, 20 12. Ms.
Hudson stated that Ms. Stevens, at her request, was subsequently transferred to another
10&
work location. It was her evidence that this was done because Ids. Stevens felt
threatened.
[197] Ms. Hudson confronted Ms. Gome with the above allegation at their meeting on
June 20, 2012. From that meeting, she understood that Ms. Gome had told the grievor
where Ms. Stevens was working. Ms. Hudson's evidence on this point was as follows:
Ms. Gome did not deny communicating the information to the grievor; Ms. Gone told
her she had not meant to put Ms. Stevens at risk and did not realize she may have done
so; and Ms. Gore started to make excuses about why she thought she had not put Ms.
Stevens in jeopardy. Ms. Hudson, ultimately, concluded that Ms Gome had breached
confidentiality and had put Ms. Stevens at risk. She testified that Ms. Gome
subsequently was given a letter concerning this perceived misconduct, but she could not
recall the actual level of discipline imposed.
[198] The grievor testified that, at some point in mid -Tune, 2012, she and Ms. Gone
were acting as scrutineers with respect to a strike vote being taken by the Union. She
stated that she had a discussion with Ms. Gome outside of the building in which the vote
was being conducted. It was her evidence that, during this discussion, Ms. Gome
infonned her that Ms. Stevens had some shifts coming up at the John Street Home. The
grievor maintained that she responded by saying, "Good for her", and that she did not ask
for any details about the shifts. The grievor described her exchange .with Ms. Gone as a
107
'Cone -off ', in the sense it was the only time this casual employee had told her where Ms.
Stevens was working.
[199] Ms. Moore testified that after the meeting on June 20, 2012, Ms. dome made the
following comment to her: "Wow, I think I might have made a mistake. I can't recall if
Felly asked me or if I told her where Jan was working". It was Ms. Moore's evidence
that she subsequently told the grievor about this comment. She indicated the grievor then
informed her that she did not ask Ms. Gome where Ms. Stevens was working and that she
added, "why would I, I don't care".
[200] 1 note that Ms. Gome was not called as a witness by either party.
[201] The grievor advised that she started to look for work in July, 2012. Her work
record may be summarized as follows:
i)The grievor started work for On Time Manpower, a temporary
employment agency, in September, 2012. She started to get regular shifts
in October. Most of these shifts were at TFT Global, a containu.:nent
company. The grievor indicated that she performed work for this
company at various job sites and that the work involved inspecting
product in a factory context. While with TFT Global, the grievor worked
approximately thirty --five (3 5) hours a week at a rate of $11.00 per hour.
She left this employment in April, 2013; and
ii}In April, 2013, the grievor commenced employment with Walmart in
Tillsonburg. She started as a full-time overnight stocker and worked
between 11:00 p.m. and 7:00 a.m. each day at an hourly rate of $11.40.
She additionally received an overnight premium of $5.00 for each shift.
Thereafter, she received several adjustments to her wage rate. In April,
2014, the grievor became a Support Manager. This change resulted in a
wage increase of $0.50 per hour. She received a further $0.30 merit
increase as of July, 2014. At the time of her evidence, the grievor was
being paid $15.20 per hour. She advised that she was earning $22.40 per
hour at the time of her termination.
[202] During the course of her evidence, IIs. Stevens advised that she went off work sick
for a period of approximately two (2) months following the grievor's termination. She
testified that this absence was pursuant to her physician's direction and that it was
directly related to her issues with the grievor. No medical reports were filed with respect
to this time away from work.
[203] During the course of this proceeding extensive reference was made to a number of
policies and procedures enacted by the Employer and in effect at Community Living
Tillsonburg. The relevant ones are addressed below.
[204] The Employer's Pules of Conduct read, in part:
"POLICY
All employees of Community Living Tillsonburg are
ambassadors of the agency, whether at work or off duty.
Therefore, we ask employees to conduct themselves in a
manner that exemplifies the quality of work and worker at
Community Living Tillsonburg.
Employees must not engage in any improper activity or
behavior at work that might create or constitute a hazard to
them or to any other person .....................................
The following listing of offenses is provided for your
in -formation and guidance. It is not necessarily complete. The
following conduct is unacceptable and failure to comply will
result in discipline which may include suspension with or
without pay, or dismissal:
109
4) Failure to follow Manager's instructions or to do the work
assigned.
S) Disclosure of confidential information pertaining to any
service participant, staff and/or Association business
S) Unacceptable levels of absenteeism or lateness
10) Sexual and/or personal harassment of others cc
[205] FIs. Hudson testified that the grievor breached all of the above rules. Briefly
stated, her evidence was as follows: the grievor breached Rule 44 by ignoring the
Employer's direction to stay away from, and not contact, ails. Stevens; the grievor
breached Rule 45 by disclosing to others, including Ms. Fehrman and FIs. Ashkanase,
confidential information pertaining to her relationship and issues with Ms. Stevens; the
grievor breached Rule 48 by using sick time when she was not legitimately ill; and the
grievor breached Rule #10 by personally harassing Ms. Stevens.
[206] The Employer's Progressive Discipline Policy reads, in parte
"9.1 PROGRESSIVE DISCIPLINE ACTION
It is the policy of Community Living Tillsonburg that discipline
should be progressive and corrective, not punitive. In addition,
a consistent, fair and reasonable level of disciplinary action will
be applied when work performed is less than satisfactory,
behaviour is unacceptable or violations to agency rules and
regulations occur. The management of Community Living
Tillsonburg withholds the right to discipline any employee who
violates any policy, procedure, rule or regulation contained in
110
this manual or any other agency policy, procedure, rule or
regulation, written or otherwise, that the agency may deem
necessary.
9.2 M'LEMENTATION
The following are the steps followed in the disciplinary
procedure of Community Living Tillsonburg
Stage i Verbal Warning (with a written record of such)
Stage 2 Written Warning (to be placed in the employee's
file)
Stage 3 Suspension (with a written record of such)
Stage 4 Termination
It is to be noted that the seriousness, nature, and/or frequency of
the conduct resulting in disciplinary action will determine the
starting point in the above noted process. Certain acts of
misconduct may lead to immediate dismissal without reference
to prior warnings.
Without limiting, the following cases may result in immediate
suspension and/or termination:
Violating any of the policies, procedures, rules or
regulations
® Insubordination
.................................................................
Disclosure of confidential information pertaining
to any service participant, staff, and/or Agency
business;
® Unacceptable levels of absenteeism or lateness;
Sexual and/or personal harassment of others;
97
[207] The Employer's Policy and Procedure relating to Confidentiality provides as
follows:
ill
"POLICY
The Agency recognizes its responsibility to ensure that
information about business and personnel matters if (sic.) in the
strictness of confidence.
Agency employees and volunteers will maintain strict
confidentiality regarding all information pertinent to business
and personnel matters. Information will only be disclosed
when required by federal and provincial statutes, or with written
permission from the individual, or other person vested with
authority.
Confidential information includes information regarding
personal matters of persons being supported, staff persons and
volunteers of the Agency in general.
A breach of confidentiality could initiate disciplinary action.".
[208] The grievor's discussions with Ms. Fehrman and Ms. Ashkanase have been
reviewed above. I note that Ms. Stevens acknowledged that she also discussed the
situation involving the grievor with several coworkers, including Ms. Gome, IVIS.
Maggie Klassen, Ms. Linda Berry, Ms. Roden and Ms. Fehrman. It is apparent that the
discussions with Ms. Gome and IVIS. Kl.assen may have been initiated because of a
perceived concern for her safety at work.
[209] The Employer's Policy with respect to Visitors reads, in part:
112
"3.5 VISITORS — DEFINITION
A visitor is any person who is admitted to the premises who is
not directly providing a service for which Community Living
Tillsonburg pays them. This shall include but is not limited to
sales representatives, consultants, properly sanctioned guided
tours, customers or their representatives, and the general public.
It also includes off-duty employees, their families and/or
friends.
3.6 VISITORS
Visitors are not permitted on Community Living Tillsonburg's
premises without expressed authority of the area supervisor.
n
[2 10] Ms. Hudson noted that the grievor, while off duty, went to Ms. Stevens' work
locations. It was her evidence that employees require the authority of a Supervisor to
return to the workplace when off duty. She did not agree that it was common practice for
employees to visit each other at their Domes on non -work time or to drop off coffee. Ms
Hudson observed that the grievor was asked not to engage in such conduct, once it came
to her attention. In this regard, she referenced her letter to the grievor dated October 24,
2011, which has been previously cited.
[211] The grievor testified Managers were aware, as far back as 2002, that off-duty
employees were regularly socializing with colleagues who were at work. Indeed, she
asserted that Managers would have personally observed such a practice on numerous
occasions, The grievor was unaware of any Employer policy that prohibited this form of
contact between employees. When shown the above policy, which provides that a visitor
113
includes off-duty employees, she questioned when it was written. She further noted that
several of the requirements imposed on visitors were inapplicable to the Home setting.
By way of example, the grievor stated that there are no Visitor Log Hooks for sign -in
purposes at the Homes. She acknowledged that she did not have permission of a
Supervisor on those occasions she visited lolls. Stevens at work.
[212] Ms. Moore testified to like effect and maintained that it is common practice for off-
duty staff to visit colleagues who are working. On her reading, the above Policy does not
apply to the residential Homes. Rather, it is applicable to Arc Industries and, previously,
to the Community Activity Program.. These are industrial work programs owned and
operated by Community Living Tillsonburg. Ms. Moore noted the following aspects of
the Policy that are inconsistent with the actual day to day operation of the Homes: there
is no office, reception area, or Visitor's Log Book in the Homes; visitors do not wear
Personal Protective Equipment and do not operate equipment; visitors to the Horne are
not required to sign -out when leaving; the Homes do not have lunch rooms; escorts are
not required to accompany visitors around the Home; and there is no Area Supervisor or
Manager in the Homes.' Ms. Moore testified that the Policy relating to Visitors has not
been addressed at Team Meetings. Additionally, she observed that the subject of visits
by off-duty employees has never been raised at the Health and Safety Committee. Ms.
Moore further noted that the aforementioned Committee, which includes an Employer
representative, reviews all policies on an annual basis.
114
[2131 The Policy relating to Harassment In The Workplace, which was in effect at the
time Ms. Stevens initiated her complaint in October, 2011, reads, in part:
""It is the policy of Community Living Tillsonburg that every
employee has the right to be free from discrimination and
harassment in the workplace. Harassment is defined in the
Human Rights Code as "a course of vexatious comment or
conduct that is known, or ought reasonably to be known, to be
unwelcome." Discrimination and harassment based on the
following are prohibited under the Ontario Human Rights Code,
and will not be tolerated by Community Living Tillsonburg.
Age Alcoholism Ancestry Citizenship
Colour Creed Drug Abuse Family Status
Language Marital Status Medical Condition
Pardoned Offence Physical/Mental Disability
Place of Origin Place of Residence Political Belief
Pregnancy Race Record of Offences Religious Beliefs
Sex Sexual Orientation Social Condition
Social Origin
Community Living Tillsonburg views discrimination and
harassment as unacceptable and any employee found in
violation of this policy will be subject to discipline up to and
including dismissal. Any supervisor and/or manager who is
aware of discrimination and harassment taking place by one or
more of his/her employees, and does not take action to stop it,
is also subject to disciplinary action up to and including
dismissal.
We seek cooperation from all our employees to maintain a work
environment free of discrimination and harassment.
Community Living Tillsonburg has an internal complaint
mechanism for any employee or business associate who feels
that they have been the recipient of harassment in the
115
workplace. It is the responsibility of Community Living
Tillsonburg, and all members of management, to ensure that
complaint investigations are prompt, thorough and complete,
while at the same time, maintaining confidentiality.
Use of the internal complaint procedure will ensure that the
company has an opportunity to deal with allegations of
harassment, rather than having complaints automatically
proceed to an outside agency or commission for investigation.
Community Living Tillsonburg and all members of
management will ensure that every effort occurs to fully protect
employees or business associates, be they the alleged harasser,
the employee, any witnesses or other persons involved, from
any form of retaliation.
An employee or business associate who feels that he/she is
being subjected to any form of harassment should first try to
male this clear to the harasser. Where doing so would be either
inappropriate or embarrassing, or where the harassment
subsequently persists, the employee may access the internal
complaint procedure below:
r'� 'r�w��t�z�
If the complaint is not resolved through the informal complaint
procedure or if the complaint alleges harassment of a serious
nature, the employee may wish to pursue the complaint using
the formal complaint stage.
The employee contacts his/her manager; the manager is
required to contact the Director to proceed with a formal
investigation. A business associate should advise their direct
contact at Community Living Tillsonburg.
The employee is responsible to provide, in writing, the event(s)
including date, time, location, and possible witness names for
the investigation. To assist the employee; his/her manager is
available for advice including guidance in documenting the
complaint in writing.
116
The Manager and Director will conduct the investigation. They will,
at all times, thoroughly and objectively review the facts, and give
consideration to the merits of the case; the law and other factors
pertinent to the issue.
A. confidential written report of the investigation will also be given to
the employee and the alleged harasser. In most cases, the
investigation and report will be complete three weeks after receipt of
the employee's written complaint. If the investigation is not complete
within three weeks, the employee is advised of the reasons for the
delay and a new estimated completion date.
In the event that a satisfactory resolution of the complaint has been
reached, the complaint procedure will be terminated. To determine
the complaint, the complainant indicates, in writing, that he/she is
satisfied. If necessary, any aspect of the complaint may be presented
to the company's senior management for review."
[214] I note for the record that the above policy was revised on May 4, 2012, just days
before the grievor's termination. IIs. Hudson advised that the Employer did not shift to
the revised Workplace Harassment and Violence Prevention Policy, as its investigation
was complete by the time it became effective. The definition of Harassment in the
revised policy is as follows:
`Harassment: is a deliberate, unsolicited or unwelcome
invitation either through verbal or physical behaviour that
demeans, embarrasses, humiliates, annoys, alarms or verbally
abuses a person and that is known or would be expected to be
known as unwelcome. Harassment includes: words, gestures,
jokes, remarks, insults, ridicule, belittling or demeaning
statements, innuendo or taunting about a person's body, attire,
age, marital status, ethnic or national origin, religion, gender or
sexual orientation. Harassment extends to incidents occurring
at or away from the workplace, during or outside normal
working hours."
117
[21.5] MIs. Hudson advised that Ms. Stevens' complaint was the first complaint of
harassment between staff that the Employer was called upon to address. She
acknowledged that the Employer did not follow all of the Complaint Procedure in place
at the time. More specifically, the Employer did not get a written report from MIs.
Stevens setting out the particulars of the alleged harassment and the names of any
possible witnesses to same; and it did not provide a confidential written report of the
investigation to either MIs. Stevens or the grievor. MIs. Hudson also agreed that the
grievor was not provided with anything in writing documenting the details of the
harassment complained of. Lastly, she volunteered that she and MIs. Stefan led the
investigation, and that MIs. Matthews was not actively involved in same after October 18,
2011.
[21 G] Notwithstanding the above, MIs. Hudson believed that the Employer engaged in a
thorough and objective review of the facts and considered the merits of the case, the law
and other pertinent factors, as required by the Policy. She further stated that she had no
doubt the grievor was aware of the nature of the complaint. It was her evidence that she
confronted the grievor with all of the material allegations of harassment. With respect to
this point, MIs. Hudson testified that she communicated to the grievor whatever she
learned about the dates, times and locations of the alleged harassment, In this regard, she
made the following comment: "She seemed to be aware of what I was tallying about'.
118
[217] In cross-examination, Ms. Stevens testified as follows: the Employer did not tell
her there would be an investigation following her complaint; she never received a
document from the Employer setting out the grievor's response to the complaint; she was
never told by the Employer why the investigation was delayed; she never received a
written report of the investigation; and she was never asked to sign anything to confirm
there had been a satisfactory resolution of the complaint.
[218] it is the position of the Employer that the grievor was properly terminated for
misconduct which occurred away from, and at, work. With respect to the former
category of misconduct, the Employer relies on Millhaven Fibres Ltd. v. Oil, Chemical
and Atomic Workers International Union, Local 9-670 (Mattis Grievance), [1967]
®.L.A.A. No. 4 (Anderson). This authority provides guidance as to when an Employer
may discharge an employee for conduct away from the workplace. The material passage
of the decision reads:
"In other words, if the discharge is to be sustained on the basis
of a justifiable reason arising out of conduct away from the
place of work, there is an onus on the Company to show that:
1. the conduct of the grievor harms the Company's reputation
or product
2. the grievor's behavior renders the employee unable to
perform his duties satisfactorily
3. the grievor's behavior leads to refusal, reluctance or inability
of the other employees to work with him
119
4. the grievor has been guilty of a serious breach of the
Criminal Code and thus rendering his conduct injurious to
the general reputation of the Company and its employees
5. places difficulty in the way of the Company properly
carrying out its function of efficiently managing its works
and efficiently directing its working forces"
(paragraph #20)
[219] The above-cited test was accepted in Toronto (City) v. Toronto Professional Fire
Fighters' Association,- Local 3888 (Bowman Grievance), [2014] ®.L.A.A. No. 507
(Newman). The Arbitrator there noted that an Employer is not required to satisfy all of
the five (5) branches of the Millhaven Fibres test and that, depending on the seriousness
and impact of the misconduct, any one (1) of the listed consequences may warrant
discharge. In this regard, she referenced the following excerpt from the award in Ottawa -
Carleton District School Board and O.S.S.T.F., District 25, (Cobb) (2006), 154 L.A.C.
(4"') 3 87 (Goodfellow):
"This does not mean, however, that the School Board, unlike
other employers, is entitled to be the `custodian of the grievor's
personal character or conduct'. See e.g. Re Port Moody (City)
and C.U.P.E. Local 825 (1997), 63 L.A.C. (0) 203 (Laing).
Employees of school boards, like other employees, do not
surrender their personal autonomy when they commence the
employment relationship. In order for the employee's off-duty
conduct to provide grounds for discipline or discharge, it roust
have a real and material connection to the workplace, in the
manner described above. And, where the interests asserted by
the employer, as it is here, is in its public reputation and its
ability to be able to successfully carry out its works, the
concern must be both substantial and warranted. The test, so
far as possible, is an objective one: what would a reasonable
120
and fair --minded member of the public (in this case, the school
community) think if apprised of all of the relevant facts. Would
the continued employment of the grievor, in all of the
circumstances, so damage the reputation of the employer so as
to render that employment impossible or untenable?"
Counsel for the Employer argued that in this instance, and for purposes of applying the
objective test as described above, the public would consist of the families of supported
individuals who entrust the care of their loved ones to Community Living Tillsonburg
and the government which funds the services.
[220] The Arbitrator in Toronto_(Qity) et al. also enlarged the scope of the fourth branch
of the Millhaven Fibres test to include a serious breach of the Ontario Hunan Rights
Code or of an Employer policy relating to harassment and/or discrimination. The
following paragraphs of her award speak to this refinement:
"But it is obvious that cultural awareness and sensitivity has
grown over that time, along with the diversification of our
communities and our workplaces. I am confident that in 2014,
a serious breach of the Employer's Human Rights and Anti -
Harassment and Discrimination policy, or a serious breach of
the Human Rights Code, would, to that same reasonable and
fair minded member of the public, seem just as damaging to the
Employer's general reputation as would a serious violation of
the Criminal Code. In Canada in 2014, that reasonable person,
in my view, would consider human rights violations to be very
serious misconduct, injurious to the Employer's reputations
The fourth branch of the Millhaven test, I suggest, might be
revised in light of that diversification. It might now read, `Has
the grievor been guilty of a serious breach of the Criminal Code
or of a Human Rights Policy or Code, thus rendering his or her
conduct injurious, to the reputation of the Company and its
employees?"
121
(paragraphs #28, 29)
[221] 1t is the position of the Employer that the grievor improperly harassed Ms. Stevens.
Counsel for the Employer referenced the following definition of harassment, as
articulated in Toronto Transit Commission v. Amalgamated Transit Union (Stipa
Grievance), [2004] O.L.A.A. No. 565 (Shime):
"Harassment includes words, gestures and actions which tend to
annoy, harm, abuse, torment, pester, persecute, bother and
embarrass another person, as well as subjecting someone to
vexatious attacks, questions, demands or other unpleasantness.
A single act, which has a harmful effect, may also constitute
harassment."
(paragraph #249)
[222] Counsel for the Employer assessed the grievor's conduct, and more specifically her
alleged harassment of Ms. Stevens, over two (2) distinct periods of time, the first being
from April, 2011 to the filing of Ms. Stevens' complaint in October, 2011, and the second
being from the date of the aforementioned complaint to the grievor's subsequent
termination.
[223] On counsel's analysis, the grievor in the initial period stubbornly refused to
acknowledge or recognize that Ms. Stevens did not want to have as close a friendship as
they previously had when working together at the Allan Street Home. He noted that,
over this period, the grievor had a substantial number of contacts with Ms. Stevens either
in person or by email, facebook messaging, or text messaging. On counsel's view of the
evidence, these contacts were not welcomed by Ms. Stevens and, when taken together,
122
constituted harassment. He described the grievor within this period as persistent and
obsessive. It was the substance of his submission that she was not getting the clear
message being communicated by Ms. Stevens. Counsel observed that many of the
grievor's contacts were motivated by the following considerations: Ms. Stevens' failure
to respond to her invitation in late March, 2011 that they subsequently have dinner
together at The Keg Restaurant; the grievor's unwillingness to accept the message
conveyed by Ms. Stevens during their face to face conversation on May 3, 2011, namely
that Ms. Stevens was attempting to distance herself from the friendship; and the grievor's
insistence that she was promised, and was entitled to, an explanatory email from Ms.
Stevens relating to the status of their relationship and why it had changed for the worse.
Counsel observed that the grievor believed she had a right to receive answers from Ms.
Stevens with respect to these matters.
[224] Counsel for the Employer acknowledged that the bulk of this dispute concerns
conduct which occurred away from work. He did, however, reference two (2) examples
of harassment which took place at work during the initial period, the first being the
Potters Load incident of August 20, 2011 and the second being the grievor's visit to the
John Street Dome on September 30, 2011. With respect to the former incident, counsel
emphasized that the grievor showed up at the Dome uninvited and that she and Ms.
Stevens had a discussion outside for in excess of an hour. He noted the existence of a
conflict in the evidence as to the nature and intensity of the exchange. I was asked to
123
prefer the account of events provided by lis. Stevens. With respect to the latter incident,
counsel observed that the grievor again showed up uninvited while off duty, and that she
actually entered the Home and left a coffee for Ibis. Stevens. Counsel considered it
material that the grievor elected to make this latter visit in the face of Ms. Stevens'
facebook message of September 9, 2011, which has been reproduced above. On his
reading of the message, it should have been abundantly clear to the grievor that Ms.
Stevens did not want any further visits at work and that she was "done" with the
friendship.
[225] Counsel for the Employer referenced the series of text messages sent by the grievor
to Ms. Stevens during the summer of 2011. It was his submission that the messages
constituted harassment, as they served to "torment" Ms. Stevens. Counsel stressed that
the grievor was then aware that a former co-worker and friend of Ms. Stevens had
committed suicide. He argued that, in all of the circumstances, the grievor knew that Ms.
Stevens would construe the messages as a threat that she would act in a similar fashion.
Counsel further suggested that the messages were intended to manipulate Ms. Stevens
into responding to the grievor's requests for an explanation as to why the friendship had
deteriorated. He added that, while Ms. Stevens may have been rude to not respond to the
grievor's questions, she had no legal or moral obligation to tell the grievor why she no
longer wished to be her friend.
124
[2.26] As noted, Ms. Stevens deffiended the grievor on facebook on October 17, 2011.
This action led to the grievor's angry email response of October 19, 2011. Counsel
argued that, contrary to her assertion, the grievor did not then accept that the friendship
was over and move on. Instead, she elected to change her tactics and to engage in, what
counsel described as, a form of "guerrilla warfare". Counsel observed that it was the
events which occurred after October, 2011 that, ultimately, led to the issuance of a Peace
a s'
[227] Counsel for the Employer addressed a number of the incidents which occurred in
the period following the filing of Ms. Stevens' complaint. His argument may be
summarized as follows -
i) Counsel referenced the evidence relating to the grievor's vehicle being in
close proximity to Ms. Stevens' vehicle or to her workplace. He noted
that the grievor acknowledged she was likely in the vicinity of where Ms.
Stevens was with respect to several of the occurrences described by Ms.
Stevens. Counsel agreed that Tillsonburg is a small town and, for that
reason, it is possible for individuals to see or run across people they know
while out in the community. He observed, however, that Tillsonburg is
"not miniscule". In counsel's words, there were simply too many
sightings of the grievor for them all to be a matter of coincidence. He
speculated that the grievor's obsessive tendencies led her to be out and
about in areas where she knew IVIS. Stevens was working or might drive
through. Simply put, I was asked to find that the drive-bys and passes
were more than just a coincidence. On this point, counsel noted the
grievor's admission to the effect she drove by Ms. Stevens' residence on
one (1) occasion in November, 2011. From his perspective, this provides
credence to his submission that some of the other driving incidents were
not coincidental. Counsel also referred to the evidence of Ms. Fehrman
about seeing the grievor driving in her subdivision. He acknowledged
that it conflicted with the grievor's evidence and that Ms. Fehrman is a
125
friend of Ms. Stevens. In substance, he maintained that her evidence
should still be accorded some weight;
ii) Counsel argued that the photographs taken from inside the Potters Road
Home make it clear that a person looking out the front window could see
and identify a vehicle driving by. He agreed, however, that Ms. Stevens
likely "got it wrong" when she said she observed ten (10) drive-bys on
the day in question. It was his submission that the evidence discloses that
the grievor did drive by the Potters Road Home, but that the number of
times she did so is unclear. Counsel acknowledged that there are gaps in
the evidence of both Ms. Stevens and the grievor. In his words, "we both
fall short". He advised that he was not hanging his hat on the Potters
Road drive-bys. Counsel noted, however, that much of this case turns on
credibility. He maintained, in this regard, that the evidence of Ms.
Stevens is more credible and, accordingly, should be preferred;
iii) Counsel acknowledged that a conflict exists in the evidence as to why the
grievor attended the Special Olympics Basketball Tournament on
February 25, 2012. On his view of the evidence, the grievor intentionally
attended the event in order to "bother" Ms. Stevens. He described the
grievor's accusation that she was deliberately "set up" by the Employer
and Ms. Stevens to effect a breach of the terms of her release as
"ridiculous". Ultimately, I was asked to prefer Ms. Stevens' evidence
over that presented by the grievor. Counsel reiterated that the grievor
went to the event "to make her presence known";
iv) Counsel referred to the Seven Dwarves posting as another example of the
"guerrilla" tactics resorted to by the grievor. He noted the following: the
grievor and Ms. Moore are close friends; Ms. Moore admitted that the
posting was directed at Ms. Stevens and could be viewed by her; and the
grievor agreed that her comments thereon were about Ms. Stevens. It
was his submission that the grievor's involvement with the posting
amounted to a further instance of harassment; and
v) Counsel also spoke of the day when Ms. Stevens observed the grievor at
three (3) places she was at, namely the TD Canada Trust branch in the
Tillsonburg Mall, Tien Hortons and Waimart. He suggested that the
grievor's presence at these locations reflected "a degree of deliberate
behavior", rather than it simply representing another coincidence.
126
[228] Counsel for the Employer argued that the grievor harassed Ms. Stevens before and after
October, 2011, and that such harassment occurred both away from and at work. He
maintained that the grievor breached the Employer's policy relating to `Harassment In The
Workplace'. More specifically, on his analysis, the grievor should, or ought reasonably, have
known that her behavior amounted to a course of vexatious comment or conduct that was
unwelcomed. Counsel asserted it is significant that Ms. Stevens complained to the Employer
that she was being harassed by the grievor. It was his fijrther submission that her subjective
impression of harassment was supported by the objective evidence relating to what had
occurred during the course of the relationship. Counsel referred to the award in Kinark Child
and Family Services SYL APPS Youth Centre v. O.P.S.E.U.9 Local 213 (Patterson Grievance),
[2012] ®.L.A.A. No. 532 (Marcotte). In that instance, the Arbitrator observed that harassment
involves both objective evidence and subjective impressions. He described the approach to be
applied in the fallowing terms:
"In other words, while an individual's subjective impressions of
another's behavior or actions lead hint or her to conclude
harassment has occurred, that conclusion must be established
on the objective evidence concerning the alleged harasser's
conduct. Similarly, in Re British Columbia, supra, arbitrator
Liang states, at p. 244: "Harassment, like beauty, is a
subjective notion. However, harassment must also be viewed
objectively." I concur with the above approach. Thus, in order
to establish that harassment has occurred, the objective
evidence must establish, on a prima facie basis, that Mr. Sutch
engaged in conduct which tended to "annoy, torment, pester,
persecute, bother and embarrass [the grievor] as well as
subjecting [him] to vexatious attacks, questions, demands or
other unpleasantness", Re Toronto Transit, supra, p.241.
127
(paragraph #41)
99
[229] Counsel for the Employer emphasized that the grievor denied that she knew what
she had to acknowledge as a condition for entering a Peace Bond. On his reading of the
Court Transcript, the grievor admitted that she caused Ms. Stevens to be fearful. He
submitted that the grievor should not be permitted to retreat from the acknowledgement
she made before the Judge on April 17, 2012. Counsel argued that such
acknowledgement constitutes evidence of harassment and that it should be given
considerable weight. Deference was made to the award in Toronto District School Board
v. Canadian Union of Public Employees, Local 4400 (Van mord Grievance), [2009]
O.L.A.A. No. 10 (Luborsky). In that instance, as here, the grievor entered into a Peace
Bond and the original charges were withdrawn. The Arbitrator, there, described the
entering into a Peace Bond as "a tacit recognition of wrongdoing by the Grievor"
(paragraph #72).
[230] Counsel returned to the tests set out in the Millhaven Fibres award for assessing
the seriousness of employee conduct away from the workplace. The material portions of
his argument may be summarized as follows:
i) Ms. Fehrman's evidence reflected the reluctance of another
employee to work with the grievor;
ii) Ms. Matthews was compelled to attend the Special Olympics
Basketball Tournament in February, 2012 given Ms. Stevens'
concern that the grievor would show up at the tournament.
128
Counsel submitted that the need for the Employer to send a
Manager to the Nigh School site evidenced that the grievor's
conduct placed difficulty in the way of the Employer properly
carrying out its function of efficiently managing its works and
efficiently directing its working forces. A similar argument was
advanced concerning the need for the Employer to develop and
implement the series of Safety Plans referenced earlier. Counsel
argued that these plans made it more difficult to schedule
employees, as it had to ensure that the grievor and Ms. Stevens did
not come into contact with one another at the various work
locations. He also noted that the Safety Plans resulted in Ms.
Stevens working fewer hours;
iii) Counsel referenced the fact that Ms. Stevens had to take time cuff
work following the grievor's termination because of the stress
occasioned by the harassment. He argued that this similarly
interfered with the Employer's ability to manage its activities, as it
was then unable, as a consequence of the absence, to schedule one
(1) of its part-time employees;
iv) 'There was a "spill-over" effect from the grievor's misconduct, as
evidenced by the need for the Employer to conduct two (2)
meetings with staff in June, 2012 relating to Ms. Moore's
complaint against Ms. Stevens; and
v) The reputation of the Employer was harmed as a result of the
grievor's misconduct, her contravention of the `Harassment In The
Workplace' policy, and the resulting criminal proceedings.
[231] Counsel for the Employer submitted that harassment is a serious form of
misconduct regardless of whether it occurs at the workplace or at times when employees
are off duty. He emphasized that personal harassment is an offence which may result in
immediate suspension or termination under the provisions of the Employer's Progressive
Discipline Policy. Counsel noted that, in this instance, the grievor did not make a candid
and genuine admission of wrongdoing and does not appear to understand the significance
129
and impact of her actions. In his view, the grievor has not assumed any responsibility for
what occurred. here. From his perspective, she continued to blame others right up until
the end of this proceeding.
[232] Counsel for the Employer conceded that the Employer did not follow the strict
language of the Complaint Procedure relating to alleged harassment. In his submission,
this failure should not end the inquiry, as the threshold issue in this case is whether the
Employer had just cause to terminate the grievor's employment. Counsel argued that
acceptance of the Union's position, to the effect that the process errors should nullify the
discharge, would amount to a "victory of form over substance". He further observed that
it would have me disregard all of the evidence presented in this very lengthy proceeding.
Simply stated, counsel submitted that a finding the Employer conducted a flawed
investigation does not serve to end the analysis, Counsel also observed that this was the
first occasion where the Employer was required to deal with this type of harassment
complaint. Ultimately, it was his submission that grounds exist for substantial discipline
notwithstanding the presence of some flaws during the investigative process.
[233] On counsel's tape of the evidence, the grievor asserted that her arrest and charge
led her to be so devastated that she was unable to attend at work. In his view, the
assertion does not "equate" with the treatment she received from the Police post -arrest,
On this point, counsel noted the following: the grievor was not held in custody; she spent
only forty-five (45) minutes in a meeting room at the Detachment; she was not
130
handcuffed; she was treated with respect and given access to an Ontario Legal Aid Plan
lawyer, and she was, ultimately, released on a promise to appear. Counsel further
observed that there was no press coverage of the arrest in the local newspaper. In short,
he suggested that the events should not have driven the grievor into a state of shock, as
claimed.
[234] Counsel for the Employer reviewed all of the medical notes provided by ]fir.
Wahby on the grievor's behalf. On his reading, the notes do not provide much
information as to the grievor's real condition between the date she went off work in
January and her termination in May, 2012. More specifically, he noted that the medical
documentation received prior to the grievor's termination did not refer to anxiety,
sleepless nights or lack of appetite. Indeed, counsel suggested that any stress experienced
by the grievor should have been much reduced by late March, 2012, as by then she was
aware that the criminal charge would be resolved by way of a Peace Bond. Counsel
submitted that, given the paucity of information in the medical notes, Lir. Wahby should
have either been asked to provide a more detailed report or have been called as a witness
by the Union to support the validity of the grievor's absence. Counsel noted the
following comment expressed in Providence_ Care -Mental Health Services v. O.P.S.E.U.,
Local 431 ellen Grievance), [2012] 0.L.A.A. No. 263 (Stephens):
131
"A medical opinion is not arrays sufficiently detailed or
logically consistent to be persuasive, and the employer has the
right to critique such opinions, as do arbitrators."
(paragraph 433)
Lastly, I was asked to draw an adverse inference from Dr. Wahby's failure to testify and
to conclude that the grievor did not attend at work for reasons other than medical
grounds. Such an adverse inference was drawn in Children's Aid Society of Toronto and
C.U.P.F.9 Local 231 Azevedo Grievance), [2014] O.L.A.A. No. 374 (Raymond).
[235] Counsel for the Employer referenced the following: the grievor's attendance and
"combative" demeanour at the Special Olympics Basketball Tournament on February 25,
2012; and the grievor's participation as a volunteer in March, 2012 at a Tillsonburg
Minor Hockey League Tournament. From his perspective, these involvements are
inconsistent with what one would reasonably expect of a person off work on sick leave.
Counsel argued that this is particularly so given the grievor's claim that her arrest and
charge caused her to be debilitated, embarrassed, anxious and. housebound. He suggested
that if the grievor considered that carrying on everyday functions of life was permissible,
then she should have notified the Employer, or provided a medical note, to that effect.
Counsel observed that there was no medical evidence presented here to establish that
carrying on day to day activities was good for the grievor's medical condition.
[236] Counsel for the Employer further submitted that the grievor's actions while off
work were inconsistent with the purpose of a medical leave of absence. In Kenroc Tools
CgM. and U. S.W.A., [ 1990] C.L.A.A. No. 172 (Picher), the Arbitrator stated that such a
132
leave "is intended for the purpose of allowing the employee an opportunity to convalesce
under a doctor's care. Exceptional circumstances apart, convalescence normally takes
place in a hospital or at home" (paragraph #9). Similarly, the Arbitrator in Aurora
(Town) v. International Assn. of Firefighters, Local 2870(Patterson „Grievance), [2002]
O.L.A.A. No. 936 (Albertyn) observed as follows:
"A period of sick leave is meant to be a period of
convalescence; a time for recuperation. Rest is expected of the
patient, to ensure a speedy recovery..............................51
(paragraph 453)
In substance, it was counsel's submission that the grievor was capable of working
following the laying of the charge in late January, 2012, and that she improperly abused
sick leave by failing to return to work thereafter. He described this as a fundamental
breach of trust and maintained that it could support dismissal standing alone.
[237] Counsel for the Employer argued that the grievor's harassment of Ms. Stevens and
her abuse of sick time could both independently justify the decision to terminate her
employment with Community Living Tillsonburg. In the alternative, he asserted that
when considered collectively, the two (2) grounds clearly constitute a sufficient
foundation for the grievor's discharge.
[23 8] Counsel for the Employer further argued that if discharge was not appropriate in
the circumstances of this case, then damages should be awarded in lieu of reinstatement.
He referenced the following factors in support of this submission:
133
i) From October 24, 2011 till the conclusion of this proceeding, the
grievor did not see her actions as harassment;
ii) The grievor's behavior got worse after the filing of Ms. Stevens'
complaint;
iii) The grievor deliberately breached the Employer's clear policy
prohibiting staff who are off duty from visiting employees who are
at work;
iv) The grievor does not respect Ms. Hudson, or other members of
management, as evidenced by her comments about the meeting
concerning the 7 Dwarves posting and her statement about Ms.
Matthews at the Special Olympics Basketball Tournament;
_ v) The grievor's negative description of Ms. Fehnnan and her
suggestion she may have perjured herself in order to advantage her
friend, Ms. Stevens;
vi) In cross-examination, the grievor agreed she becomes agitated
when challenged. Counsel described her as a "pugilistic" witness
who would "not concede an inch" or admit to any responsibility
for what occurred in this case;
vii) The grievor was not prepared to admit that, as a condition for
entering into the Peace Bond, she had to acknowledge having
caused Ms. Stevens to be fearful;
viii) The grievor, despite denying being part of a campaign to vilify IVIS.
Stevens, accused her of being psychotic and agreed that she was
poking fun at her through the comments relating to the Seven
Dwarves posting;
ix) The grievor's assertion that Ms. Stevens took the shift on February
25, 2012 in order to set her up for a breach of the terms of her
release;
x) The grievor's belief that Ms. Stevens was at least partially
motivated to destroy her by going to both the Employer and the
Police with a complaint; and
134
xi) The grievor was not entirely forthright concerning her ability post
Peace Bond to volunteer for Special Olympics or to loop after her
friend's foster children. Counsel suggested that the grievor
attempted to depict herself as a victim with respect to these
activities.
In summary, counsel submitted that the facts do not suggest "a good reunion" and that
there are "not a lot of positive things to support a reinstatement".
[239] Counsel for the Employer referenced the following three (3) awards with respect to
the payment of damages in lieu of reinstatement: Toronto District School, Board ((Van
Word Grievance}, previously cited; Ottawa Health Care y. Canadian Union
of Public E=Ioyees, Local 942 (Charles Grievance), [2013] O.L.A.A. No. 52
(Albertyn); and Children's Hospital of Eastern Ontario v. O.P._S.E.U. (Labrecque
Grievance), [2015] O.L.AA.A. No. 342 (Parmar).
[240] In Toronto District School Board (Van Word Grievance), the Arbitrator described
an award of monetary damages in lieu of reinstatement as an "extraordinary remedy".
The remedy was not given in that instance. The Arbitrator there determined that there
was insufficient evidence to support a finding that the employment relationship had been
rendered so acrimonious by the parties' conduct at arbitration that reinstatement was not
practically feasible or in the interests of harmonious labour relations.
[241] The remedy of damages in lieu of reinstatement was similarly denied in loyal
Ottawa Health Care Grun. The Arbitrator there made the following observation about
this remedy:
135
" If just cause is not established, the usual remedy is for the
employee to be reinstated. Compensation in lieu of
reinstatement is an extraordinary remedy, one "to be invoked in
only the most exceptional cases, where the employment
relationship has been so damaged that it is untenable to
reinstate the employee": Bell Technical Solutions v. CEP
(Facebook Postings Grievance), [20121 OLAA„No. 481
(Chauvin). In DeHavilland Inc. v. CA -Canada, Local 112,
[1999] ®LAA No. 767 (Rayner), the issue was whether an
employee ought to be reinstated or compensated. Arbitrator
Rayner described some of the relevant factors as: the refusal of
co-workers to work with the grievor; lack of trust between the
grievor and the employer; the inability or refusal of the grievor
to accept responsibility for any wrongdoing; the demeanour and
attitude of the grievor at the hearing; animosity by the grievor
towards management or co-workers; the risk of a "poisoned”
atmosphere in the workplace."
(paragraph #83)
He noted that few of the above factors were applicable to the case before him.
[242] In Children's Hospital of Eastern Ontario, the grievor was terminated by the
employer hospital for engaging in harassing conduct of her co-workers. The cumulative
effect of the grievor's sustained pattern of behavior was the creation of a poisoned work
environment where staff either avoided her completely or felt they could not express their
views on patient care and workplace processes. The Arbitrator found that the hospital
had just cause for discipline but that the sanction of discharge was excessive. The
following factors, inter alia, informed the latter finding: the grievor was a fourteen (14)
year employee; she had a clear disciplinary record, and had received positive
performance appraisals. The Arbitrator, nevertheless, determined that reinstatement was
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not an appropriate remedy in all of the circumstances and opted for the "extraordinary
remedy" of damages in lieu of reinstatement. Simply stated, the Arbitrator concluded on
the evidence that there was no reasonable expectation that a viable employment
relationship between the grievor and the hospital could be re-established. This
conclusion was premised on a number of factors including: the evidence did not suggest
that, if reinstated, the grievor would be able to work closely with other staff and develop
the sort of collegial and collaborative relationships necessary to ensure the effective
delivery of patient care; the grievor did not accept responsibility for the situation she
created in the workplace but, instead, viewed it as being the product of a failure of
management; and an earlier attempt to place the grievor temporarily in a different unit
pending an external investigation was never finalized because of her refusal to sign off on
the plan. The Arbitrator, ultimately, found that damages in lieu of reinstatement was the
appropriate remedy and directed the parties to engage in discussions in respect of
quantum.
[243] Counsel for the Employer asked that I adopt the same approach as taken in
Children's Hospital of Eastern Ontario. As in that case, he argued that there is no
reasonable expectation that a viable employment relationship can be re-established
between the grievor and Community Living Tillsonburg. As a further, and final,
alternative, counsel asked that any reinstatement awarded be without compensation.
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[244] Apart from the authorities cited above, the Employer also relies on the following
awards: Rheem Canada Ltd. v. United Steel Pa er and Forestry, Dubber Manufacturing,
Energy, Allied Industrial and Service Workers International Union Loftman Grievance
[2012] O.L.A.A. No. 346 (Newman); Aramark Canada Ltd. v. United Food and
Commercial Workers Canada Locals 175 and 633 (D.F. Grievance), [2013] O.L.A.A.
No. 171 (Davie); and Toronto District School Board v. Ontario Secondary School
Teachers' Federation; Professional Student Services Personnel Unit, District 12
Noursalien Grievance) [2010] O.L.A.A. No. 493 (Albertyn).
[245] Counsel for the Union, at the outset, noted that the Employer in closing argument
advised that it was no longer relying on bullying and intimidation of coworkers as a
ground to support the grievor's dismissal. She asked, as a consequence, that I
specifically state in this Award that there is no basis for discipline on this ground. As
mentioned earlier, the withdrawal of the aforementioned ground means that the just cause
analysis must focus on the remaining allegations of harassment and abuse of sick time. It
is the position of the Union that, on the evidence, just cause has not been proven with
respect to either of these grounds.
[246] Counsel for the Union made extensive reference to the evidence relating to the
allegation of harassment. In so doing, she focused on the following four (4) periods of
time: August, 2009 to the filing of FIs. Stevens' complaint in October, 2011; the post -
complaint period to the issuance of the Peace Bond in April, 2012; the period between the
438
issuance of the Peace Bond and the grievor's subsequent dismissal, and the period post
dismissal. Counsel argued that when assessing what occurred over the entire timefiame,
it is necessary to assess the respective credibility of the grievor and Ms. Stevens, and to
consider the context for many of the events and exchanges between them.
[247] Counsel for the Union observed that the griever and. Ms. Stevens developed a close
friendship after they started working together at the Allan Street Home in August, 2009.
She described the friendship as genuine, intimate and intense. Counsel noted that they
shared a host of extremely personal issues with each other and that they each
communicated "incessantly" with the other by way of text messages at all hours of the
day. She argued that the relationship was mutual and not as one-sided, as suggested by
Ms. Stevens. In this regard, counsel referenced, inter alia, their Thursday night routine at
the Allan Street Home and the content of the cards given to the grievor by Ms. Stevens at
Christmas of 2009 and at the time of the former's birthday in May, 2010.
[248] In terms of context, counsel referenced two (2) other matters, namely, how the
grievor viewed her friendships and, what she described as, Ms. Stevens' "pattern of
avoidance". With respect to the former, she observed that the grievor treated her friends
as if they were members of her family. Counsel alluded to the evidence of the grievor
house-sitting for fiiends, taking care of their faster children and transporting other
children to their hockey games. With respect to the latter, counsel mentioned Ms.
Stevens' last minute decision not to accompany the grievor to the Buffalo Sabres hockey
139
game and her refusal to respond to the latter's invitation for dinner at The Keg
Restaurant. From counsel's perspective, there was an "up and down" and "on and off'
element to the relationship. She asserted that, in the circumstances, the grievor became
accustomed to Ms. Stevens initially avoiding commitments and then subsequently
reconnecting with her in the friendship. Counsel noted that the grievor was not inclined
to end the relationship because of this form of inconsistent behavior on the part of Ms.
Stevens. In her view, the grievor cared too much for Ms. Stevens to do so.
[249] Simply stated, it was counsel's submission that the matters mentioned in the
preceding two (2) paragraphs collectively constitute the "lens through which to assess the
grievor's behavior".
[250] Counsel for the Union observed that a material issue in this case is whether the
grievor ought reasonably to have known Ms. Stevens did not want further contact with
her. It was her submission that the following communications and events suggest that the
grievor should not reasonably have come to such a conclusion:
i) On April 21, 2011, Ms. Stevens emailed the grievor and invited her
to have a chat and a coffee on Friday, April 29P. They also had a
facebook exchange on April 26t" and 27tb. Counsel emphasized
that Ms. Stevens was still chatting with the grievor despite her
assertion that she was trying to pull away from her. She also noted
Ms. Stevens agreed in cross-examination that the friendship was
still in place at this point in time;
ii) On May 3, 2011, the grievor and Ms. Stevens had a coffee
together. Counsel observed that this was one (1) of the few in-
person interactions between the two (2) in this period. She noted
that Ms. Stevens agreed that, during their exchange, she did not tell
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the grievor she would like her to "back off'. Additionally, Ms.
Stevens acknowledged that she did not inform the grievor that she
did not want her to attend her childrens' hockey games. Counsel
further referenced the fact that Ms. Stevens agreed in cross-
examination that she and the grievor were still friends at that
juncture. She emphasized that they continued to text each other in
the period from May 3 to June 7, 2011;
iii) Counsel noted the grievor's evidence that she expected to receive
an email from Ms. Stevens, following their conversation on May
3rd, which would clarify the nature and status of the friendship. As
previously mentioned, Ms. Stevens did forward a facebook
message to the grievor on June 21, 2011 wherein she stated. "Just
wanted to let you know I will still email" and "didn't want you to
think I was a total bitch and ignoring you". On counsel's reading,
the facebook message is evidence of an intent, on the part of Ms.
Stevens, to reach out to the grievor. She asked that I reject Ms.
Stevens' claim that the message had nothing to do with the May 3"
exchange and was focused more generally on her ability to email.
Counsel questioned why Ms. Stevens would word the message as
she did, if she was trying to distance herself from the grievor. It
was her submission that Ms. Stevens' evidence about the intent of
the facebook message was not credible and that the more
reasonable explanation was that offered by the grievor. Counsel
maintained that, as of June 21, 2011, the grievor should not have
known that contact with Ms. Stevens was unwelcomed;
iv) Counsel observed that Ms. Stevens sent facebook messages to the
grievor on June 26, June 27 and July 12, 2011, and that they had
coffee together on July 3, 2011;
v) Counsel noted that the accounts of the grievor and Ms. Stevens as
to the nature and content of their conversation at the Potters Road
Home on August 20, 2011 diverged considerably. I was asked to
prefer the grievor's version of events over that presented by Ms.
Stevens. Counsel submitted that the grievor's narrative was
consistent from start to finish, while Ms. Stevens' evidence varied
between examination in -chief and cross-examination. Counsel
emphasized that the report Ms. Stevens subsequently gave to Ms.
Hudson about the incident was material, as it led directly to the
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issuance of the Letter of Concern to the grievor on October 24,
2011. She also argued, in effect, that Ms. Stevens' `skewed"
version of the events shaped how the Employer managed the
allegations of harassment going forward. It was counsel's
submission that Ms. Stevens' report to Ms. Hudson was distorted
on two (2) fronts: firstly Ms. Stevens failed to fully disclose the
extent of the friendship and, secondly, she inaccurately portrayed
what occurred outside the Home on the evening in question.
Counsel suggested that Ms. Stevens provided an incomplete and
inaccurate description of the events in order to protect her interests
with the Employer and, more specifically, her continued
employment. She argued that on the basis of the grievor's
evidence, the grievor had no reason to think Ms. Stevens did not
want any further contact with her. In counsel's words, the incident
at the Potters Road Home was not the "line in the sand", as
described by Ms. Stevens. Counsel referenced the subsequent
facebook chat between Ms. Stevens and the grievor on September
2720t 1 in support of this position. In her view, the chat was
indicative of the sort of "on -again off -again" communication
engaged in by these individuals;
vi) Counsel noted that Ms. Stevens' facebook message to the grievor
of September 9, 2011 references some chocolates the grievor left
for her at the Lisgar Street Home at some point after August 20,
2011. She argued that this act, on the part of the grievor, cannot be
viewed as an instance of harassment, as Ms. Stevens to that point
had not directed the grievor to stop dropping things off for her at
work. Counsel questioned how the grievor was then to know that
such gifts were unwelcomed. She emphasized that the first time
Ms. Stevens informed the grievor not to buy anything for her or
her family, or to not visit her at work, was by way of the facebook
message of September 9th. Counsel acknowledged that the grievor
subsequently left a coffee for Ms. Stevens at the John Street Home
on September 30, 2011. On her view of the evidence, the coffee
was not dropped off in the middle of the night, as claimed by Ms.
Stevens. Counsel observed that, at the time, there was sufficient
daylight outside the Home to allow Ms. Stevens to see the grievor
pulling her vehicle out of the driveway. It was her submission that
the grievor did nothing to cause Ms. Stevens to be fearful on
September 3 0'. I was asked to conclude that this was not an act of
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harassment, as the grievor had a history of dropping off coffee for
Ms. Stevens at the latter's workplace. Counsel maintained that the
grievor would then have no reason to know the coffee was
unwelcomed. She reiterated that the relationship had exhibited a
pattern of going up and down; and
vii) Counsel agreed that the grievor continued to communicate
electronically with Ms. Stevens following the above-mentioned
facebook message. She referenced Ms. Stevens'
acknowledgement that she had not, to that point, told the grievor
not to write to her, and that she assumed the grievor understood
that such communication was unwanted. On counsel's analysis,
this was not a reasonable assumption. She referred to the grievor's
email to Ms. Stevens of September 12, 2011. From her
perspective, the email addressed the difference between what the
grievor heard Ms. Stevens say on August 20, 2011 at the Potters
Load Home and what Ms. Stevens asserted in her facebook
message of September 9, 2011. Counsel emphasized that the two
(2) versions of what was said on August 20th do not align. Simply
stated, I was asked to find that Ms. Stevens did not clearly tell the
grievor, by way of either the Potters Load exchange or the
facebook message of September 9th, that she wanted no further
contact with her. Counsel argued that while the grievor may have
been foolish and stubborn by continuing to write Ms. Stevens post
September 9th, such conduct does not constitute harassment, in
large measure because of the lack of clarity, on the part of Ms.
Stevens, and the "mixed messages" she communicated to the
grievor over the entire course of their friendship.
[25 l] Counsel for the Union argued that the conflict between the grievor and Ms.
Stevens did not spill over into the workplace prior to the filing of the latter's
complaint. She stated that they both acted professionally when working together
and that there is no evidence that supported persons were in any way jeopardized.
Counsel noted that the grievor and Ms. Stevens worked together at the Glendale
Street Home on September 17, 2011. She observed that, while the experience was
143
difficult for the grievor, they were able to complete the shift without any issues
arising.
[252] Counsel for the Union submitted that no weight should be accorded to the
text messages forwarded to Ms. Stevens by the grievor. She emphasized that the
messages are undated and that their sequence and chronology is uncertain.
Counsel further noted that Ms. Stevens' texts around the same period were not
provided. She argued that, as a consequence, it is not possible to reconstruct the
entirety of the exchanges and to discern their context. Counsel asserted that the
Employer's allegation of emotional abuse on the part of the grievor is a very
serious matter. She cautioned against making such a finding on the basis of fust a
few text messages. On counsel's reading, the messages simply reflect that the
grievor was then going through a difficult period in her life.
[253] The grievor was clearly angry at Ms. Stevens for deleting her as a facebook
friend on October 17, 2011. Counsel suggested that this feeling of anger was
premised on two (2) considerations. First, Ms. Stevens did not personally tell the
grievor in advance that she was going to take this step. Second, Ms. Stevens did
not provide a reason as to why she was ending the friendship. Counsel argued that
the grievor then believed that Ms. Stevens would reply to her subsequent email of
October 19, 2011, and that the back and forth type of exchange would continue as
before. She submitted, in this regard, that the grievor had a reasonable expectation,
144
based on the history of their friendship, that she and Ms. Stevens would be able to
overcome the problems existing in the relationship.
[254] Counsel for the Union submitted that the grievor "only crossed the line
since" in the period between the filing of Ms. Stevens' complaint and the issuance
of the Peace Bond, this being the admitted drive-by of Ms. Stevens' home in early
November,- 2011. As mentioned, this drive-by was disclosed to Constable Lester
shortly thereafter.
[255] Counsel for the Union asserted that the grievor was genuinely upset by her
initial conversation with Constable Lester on October 20, 2011. She noted that the
grievor subsequently met with Constable Lester a second time on October 27, 2011
in order to clarify what she could and could not do pertaining to her attendances at
the arena. Counsel argued that this sought after clarification evidenced the fact the
grievor was being very cautious at the time. Indeed, she described her as being "a
rule based individual". On this point, counsel recalled that on the initial hearing
date in this matter, the grievor inquired as to whether she could attend the Services
Canada office. Her concern about doing so, without permission, was that the
aforementioned office shares space with Community Living Tillsonburg. Counsel
argued that in addition to being, cautious and concerned, the grievor would not
likely be inclined to follow Ms. Stevens around in a small town, such as
Tillsonburg, given that such behavior would be visible and easily detected.
145
[256] As mentioned previously, Ms. Stevens complained to Constable Lester about
seeing the grievor's vehicle in her neighbourhood on multiple occasions. Counsel
for the Union submitted that the grievor, in her evidence, provided a forthright
explanation and acknowledged that she might possibly have driven by or past Ms.
Stevens on some of the alleged dates. Counsel suggested that many of these
instances were simply coincidental or were possibly the product of excessive
reporting on the part of Ms. Stevens. With respect to the former, counsel noted
that Tillsonburg is a small town.
[257] Counsel maintained that there are inconsistencies in the evidence of Ms.
Stevens with respect to the following:
i) Ms. Stevens testified that she observed the grievor drive by the
Potters Road Home ten (10) times while she was working a day
shift on or about December 15, 2011. Counsel noted that Ms.
Stevens did not mention this specific number of drive-bys in her
communications with either Constable Lester or Ms. Hudson. She
further referenced Ms. Moore's evidence that Potters Road is a
busy Home and that, given the demands placed on staff by the
residents, an employee would. have little time available to look out
of the front window;
ii) Ms. Stevens testified that she believed the grievor was following
her when she used the drive-thra at a Tim Hortons in her
neighbourhood. Counsel noted that Constable Lester had no
information pertaining to this particular allegation. She suggested
that this is significant in view of Ms. Stevens' assertion that she
reported every material interaction to Constable Lester; and
iii) Ms. Stevens reported to Constable Lester that she saw the grievor
in Goderich on Boxing Day, 2011. Counsel referred to Constable
Lester's evidence that she had no reason to believe that was
146
actually the case. She described IVIS. Stevens' report as a "wild
accusation" and submitted that it tainted, and calls into question,
the balance of her claims.
[2581 Counsel suggested that I should question the accuracy of Ms. Fehrman's
evidence with respect to seeing the grievor driving in her subdivision in late
November, 2011. She argued it was unlikely, in the circumstances, that the grievor
would conduct herself in this fashion given the earlier warning she received from
Constable Lester. Counsel described Ms. Fehrman's testimony as contradictory
and inconsistent. In this regard, she noted that the gift of a Coach passport cover
and the invitation to a play had already occurred by the time Ms. Fehrman started
to work with the grievor in July, 2011. In her submission, there was then no reason
for the grievor to broach these subjects in discussions with IVIS. Fehrman. Counsel
also observed that Ms. Fehrman, on the basis of her exchanges with the grievor,
believed the latter to be "obsessive". She stated that this word was part of Ms.
Stevens' vocabulary from the outset of this proceeding. In substance, I was asked
to find that Ms. Fehrnian, contrary to her assertion, had in fact spoken to Ms.
Stevens about her relationship with the grievor. Counsel argued that this witness
carne into this case already knowing about the dynamics of this relationship and
that her evidence was tailored to match up with this prior understanding. She
reiterated that, as a consequence, Ms. Fehrman's evidence should be given little
weight.
147
[2591 Counsel for the Union stressed that "The Seven Dwarves of Menopause"
was posted on facebook by Ms. Moore, not by the grievor. She considered it
significant, however, that the grievor took responsibility for her comments about
the posting. Counsel submitted that the Employer should have disciplined the
grievor at the time for her comments, if it felt that was an appropriate way to
respond. She insisted that it was wrong for the Employer to insert it into the mix
much later in an effort to establish "a course of harassment leading to dismissal".
Counsel also acknowledged that the grievor referred to her meeting with Ms.
Hudson on December 6, 2011 as "ridiculous". She noted, though, that the grievor
went home after the meeting and changed her security settings, as suggested by the
Employer.
[260] From the perspective of the Union, the Employer maintains that the
grievor's attendance at the Special Olympics Basketball Tournament on February
25, 2012 was part of her "pattern of harassment" of Ms. Stevens. Counsel
submitted that such attendance was not a breach of the terms of the Promise To
Appear dated January 22, 2012, as Glendale High School was not a "known place
of employment" for Ms. Stevens. She argued, rather, that it was a public place and
that, at least initially, the grievor did not know that Ms. Stevens was there. On
counsel's analysis of the situation, the grievor was not required to immediately
leave the building as soon as she saw Ms. Stevens, as it was reasonable for her to
148
think that Glendale .Nigh School was not a place of employment for Ms. Stevens.
Counsel observed that the grievor elected to leave once she saw Ms. Stevens start
to use her cellphone. That act made her feel uncomfortable as she had experience
with Ms. Stevens calling the Police when they were both at the arena.. She stressed
that the grievor was only in the gym for about ten (10) minutes and that Constable
Lester testified that there were no breaches of the terms of the Promise to Appear.
[261] Counsel submitted as follows with respect to other aspects of the grievor's
attendance at the Special Olympics Basketball Tournament.
i) The grievor could be disciplined, short of discharge, for her
derogatory and inappropriate comments about Ms. Stevens and
Ms. Matthews;
ii) The grievor was entitled to inform Ms. Ashkanase of -he fact she
had been charged criminally. Counsel insisted that it was her
information to share. She argued that the grievor should not be
subject to discipline for sharing it with an old friend; and
iii) The grievor did not threaten to find out who had been reporting
her. Counsel noted, in this regard, that the grievor had by then
spoken to her lawyer and had learned about the disclosure which
would subsequently occur.
[262] On counsel's reading, the letter of termination stated that the grievor
continued to harass Ms. Stevens even after the issuance of the Peace Bond on April
17, 2012. She noted that the sole allegation of harassment after that date relates to
Ms. Stevens' assertion that the grievor was at three (3) locations she visited while
out in the community with a supported person. While, as mentioned earlier, I was
149
left with some uncertainty as to when this incident occurred, counsel stated that
Ms. Stevens appeared to agree that it took place on April 24, 2012. That would
accord with the date around which Ms. Stevens filed her report. In any event,
counsel submitted that this was not another instance of coincidental contact, as the
grievor denied that the incident occurred. She maintained that it would make no
sense for the grievor to follow Ms. Stevens around the community one (1) week
after agreeing to the terms of the Peace Bond. Counsel referenced Constable
Lester's evidence that she had no record of any.post-Peace Bond allegations and
that the Police would have definitely intervened if there had been any
contravention of same.
[2631 Counsel referenced Ms. Moore's complaint against Ms. Stevens dated May
23, 2012. She observed that the Employer seemed to suggest that the complaint
was a further example of guerrilla warfare against Ms. Stevens and that it was done
on the grievor's behalf. It was her submission that the Employer failed to establish
any nexus between Ms. Moore's complaint and the grievor.
[264] The second post -dismissal allegation concerns the allegation that the grievor
in June, 2012 asked Ms. Ciome where Ms. Stevens was working. Counsel noted
the following with respect to this allegation: the grievor denied asking the
question; it was the grievor's evidence that Ms. Doane told her where Ms. Stevens
was working and that she replied, "good for her"; there were no witnesses to the
150
exchange; Ms. Moore's statement, albeit hearsay, that Ms. Come told her she may
have made a mistake in what she said to Ms. Hudson; and Ms. Hudson simply
testified that Ms. Gome did not deny the grievor had asked her about Ms. Stevens'
work locations. Counsel submitted that an adverse inference should be drawn
against the Employer's version of events given its failure to call Ms. Gome to give
direct evidence. She argued that the grievor's evidence on the point was
uncontradicted and should, accordingly, be accepted.
[265] Counsel for the Union noted that the Harassment In The Workplace Policy,
in effect at the time of Ms. Stevens' complaint, was not in compliance with the
Occupational Health and Safety Act. She referenced the following matters
pertaining to the Policy; it had been last revised in 2003; no risk assessment had
been completed; no training had been provided to employees; and a more
comprehensive Policy was implemented in May, 2012 following the intervention
of the Ministry of Labour in Larch of that year.
[266] It is the position of the Union that the Employer conducted a flawed and
deficient investigation in this instance in two (2) respects. First, it did not comply
with the requirements of the Harassment In The Workplace Policy then in place.
Second, and apart from the aforementioned Policy, the process used by the
Employer did not meet the necessary threshold for due process and fairness
required in a dispute of this nature.
151
[267] Counsel for the Union cited the following flaws and deficiencies in the
Employer's investigation:
i) Neither the grievor or Ms. Stevens were given a copy of the Policy
in place at the time of the complaint. At a minimum, they were not
directed to the Policy;
ii) Ms. Stevens was not directed to provide anything in writing.
Counsel observed that the letters to the grievor and to Ms. Stevens,
dated October 24 and October 27, 2011 respectively, were created
prior to the receipt of any documentation;
iii) Ms. Stevens and the grievor were never told that the Employer
would investigate the complaint and what the interim measures
would be. On counsel's analysis, the letters of October 24 and
October 27, 2011 were not interim measures but, instead, were the
"end result";
iv) The Employer did not tale control of the process and failed to
ensure that the grievor was aware of what to expect going forward.
By way of example, counsel referenced Ms. Hudson's initial phone
call to the grievor on October 21, 2011. In her view, the brief
discussion they had on that date did not focus on the details of the
alleged harassment. Rather, it focused on the grievor being on the
Employer's property, such as the Potters Road Home, when off
duty. Counsel asserted that the phone call was problematic, as it
formed the basis for Ms. Hudson's letter to the grievor of October
24, 2011;
v) Counselling was made mandatory for the grievor, but not for Ms.
Stevens. Counsel submitted that this inconsistency in treatment
reflects the fact that by October 24, 2011, the Employer had made
up its mind that the grievor had harassed Ms. Stevens without
anything in writing from Ms. Stevens and without offering the
grievor any meaningffzl opportunity to respond to the allegations;
vi) There was no written report of the investigation. Counsel
suggested that this reflects the fact there was no conclusion to the
investigation in a temporal sense. She expressed the opinion that it
152
was concluded, in effect, as of October 24, 2011. Counsel recalled
that Ms. Hudson had multiple answers when asked about when the
investigation was finished, including January 22, 2012 (the date of
the Promise To Appear), April 17, 2012 (the date of the Peace
Bond) and May 7, 2012 (the date of termination). Counsel
referenced Safety Plan #3 dated February 22, 2012. That
document states that Ms. Stevens was harassed by the grievor and
that the harassment had been ongoing since the Spring of 2011.
From counsel's perspective, there was no evidence to illustrate
what the Employer did in the period from October 18, 2011 to
February 22, 2012 to enable it to properly conclude the grievor had
harassed Ms. Stevens. She noted that Ms. Hudson's meetings with
the grievor in December, 2011 and January, 2012 were non -
disciplinary. Counsel also questioned how Ms. Hudson could
conclude the harassment was intensifying in late 2011;
vii) No witnesses were interviewed by the Employer; and
viii) The Employer did not follow up on Mi. Loftus' suggestion that the
parties resort to the Union's Equity Unit for something akin to
third party mediation. Counsel expressed the view that the
Employer assumed Ms. Stevens would not participate in such a
process. She described this as a lost opportunity.
[268] It was counsel's submission that the grievor should have been asked directly about
what had occurred in her relationship with Ms. Stevens. in her judgment, the grievor was
never accorded a full and fair opportunity to respond to Ms. Stevens' allegations.
Counsel argued that the Employer was obligated to do more than it did before terminating
an employee with twenty (20) years seniority. She asserted that the Employer's missteps
should not be ignored simply because the grievor has had the benefit of a full arbitration.
Counsel stated that such an approach would be fundamentally unfair and would negate
the requirement for due process.
153
[269] The Union relies on the following authorities in support of the above submissions:
Thames Valle District School Board and Elementqa Teachers' Federation of Ontario,
[20 101 ®.L.A.A. No. 469 (Starkman); Near North District School Board and Ontario
Secondga School Teachers' Federation District 4 LReinders. Grievance), [2009] O.L.A.A.
No. 367 (Ferman); Fehr and Canadian „Pacific Railway Co., [2000] C.L.A.D. No. 47
(Schwartz); and Savage and Transport Ease and Management Services, [2001] C.L.A.D.
No. 463 (Feltz).
[270] In Thames Valle District School Board, a male teacher was dismissed for alleged
harassment and intimidation of a female educational assistant. The two (2) employees
had previously been involved in a romantic relationship which had ended. As here, the
educational assistant reported her concerns to the police. That led to the grievor being
charged with criminal harassment. The dismissal was set aside at arbitration and the
grievor was ordered reinstated with compensation and without loss of seniority. The
pertinent excerpts from the award read:
"61 In this proceeding I am determining whether the
Employer has demonstrated, by clear and cogent
evidence, that it had just cause to discharge the grievor.
There is no doubt that harassment, and in particular
sexual harassment, is extremely serious and justifiably
attracts serious consequences, and it is because of the
seriousness of the consequences, that the history and
circumstances must be carefully examined to determine
whether harassment tools place, and if so the nature and
extent of the harassment .....................................
62 In this case the task of establishing the facts is made
154
difficult because the incidents took place over a period of
years, and because the grievor and the complainant
worked closely together over those years and had a
history of friendship, and for periods of time a romantic
and sexual relationship, which was interwoven with the
allegations of improper conduct by the grievor.
76 In addition, the grievor called the complainant on at least
two occasions outside of work and visited her on one
occasion at her classroom, after being asked not to have
contact with her and these contacts were unfortunate and
inappropriate, but in my view, given all the
circumstances, do not amount to harassment. I
appreciate that, from the perspective of the complainant,
the behavior of the grievor towards her amounted to a
pattern of abuse and harassment. I also appreciate that,
from the perspective of the grievor, he may have believed
the complainant was sending him mixed messages, or at
the very least he wanted to believe that to be the case
because he continued to have affection for her, even if
such affections were not reciprocal.
77 It is not possible for me to be the judge of the feelings or
motivations of the grievor or the complainant, as this is
rarely possible, and particularly difficult in the context of
two married persons with children who worked in close
proximity in a public school and had a friendship/sexual
relationship over a number of months/years. Given the
nature of the work, there are many opportunities for the
complainant and the grievor to interact in a school day or
school year, and from these many interactions I was
presented with only a few instances, where it can be said
that the grievor behaved inappropriately. That is not to
excuse such inappropriate behavior which undoubtedly
made the complainant uncomfortable and was perhaps at
times hurtful, but only to say that the evidence, when
taken in context and in its totality, does not satisfy me
that the grievor was harassing the grievor. (N.B. should
read complainant) If the complainant believed that
155
conduct amounting to harassment was occurring in 2006,
2007 and into the beginning months of 2008, there was
nothing preventing her from bringing the platter more
directly to the attention of the grievor at an earlier date
than March, 2008.
78 Every case of harassment is ultimately determined on its
particular facts, and on the facts of this case I have
determined that the evidence has not demonstrated with
sufficient cogency that the grievor harassed the
complainant and I have therefore concluded that just
cause for discharge has not been established.
99
..................................................................
[271] In Near North District School Board, the grievor was discharged following
allegations against him of sexual abuse and harassment of a female student. Additional
allegations of improper conduct were made by other female students after the initial
allegation. In that instance, the Union argued that the investigation conducted by the
Employer was flawed in numerous respects. The relevant passages of the award on this
point read.
"115 This leaves the assertion of the Union that any penalty
ought to be reduced because of the faulty Board
investigation process and the unfair treatment of the
grievor in that respect. There were a number of problems
with the manner in which the Board investigated, such as
the failure to provide the grievor or ®SSTF with full
details of the allegations against the grievor, including a
copy of A's statement setting out her complaints about
the grievor, not putting sufficient detail in the summary
of allegations to enable the grievor to confidently identify
the circumstances of some of the particular allegations
against him, the Board's failure initially to interview
Bradley though it had been given her name to interview
and had agreed it would interview her, the Board's
156
reliance upon facts that were not accurate, such as its
belief that a barrier blocked Bradley from seeing between
the two sections of the classroom, and the inaccuracy of
some of the Board's note taking, problematic when the
Board relied upon the notes in making its
recommendation to discharge the grievor. The process
adopted did have the effect of preventing the grievor
from understanding all the details of the charges against
him at an early stage. It is possible that some of the
grievor's responses would have been different or that a
more accurate picture of the facts would have ultimately
been revealed to the Board had the investigation avoided
such deficiencies.
116 The Board argues that any flaws have been corrected by
and rendered irrelevant by the arbitration process.
However, if flaws in the investigation process likely led
the Trustees to reach a different decision than they
otherwise would have, or otherwise caused the grievor
some material harm, then a fair and complete hearing
during the arbitration process would not render such
process deficiencies irrelevant. A modified penalty
might be appropriate to properly remedy any harm
suffered by a grievor that was due to any unfairness in
the investigation process.
The Arbitrator there determined that the Employer would not have reached a different
decision but for the flaws in the investigative process. In the end result, the flaws did not
influence the ultimate decision, as the Arbitrator elected to reinstate the grievor, and to
replace the discharge with a suspension with partial compensation, on other grounds.
[272] In Fehr and. Canadian Pacific,Railway Co., the complainant was dismissed for
engaging in a course of sexual harassment and abuse of authority. As in the above award,
157
the adjudicator was confronted with an allegation that the investigation was flawed and.
unfair. The material passages of the award read:
"89 There is no evidence at all that Mr. Fehr was notified by
the company, prior to his interview, of what the focus of the
investigation was and what he would be interviewed about. Mr.
Hallam did not send him any such notice. No notice appears on
the record anywhere. Mr. Hallam's notes of the interview begin
with a statement that Mr. Weber had filed a complaint alleging
that he subjected Mr. Weber to humiliating and degrading
behavior by verbally abusing him and sexually harassing him.
Then, apparently, Mr. Hallam made some reference to the need
for confidentiality and the nature of the harassment policy.
90 One can understand that a company might wish to
confidentially investigate an event, without informing the
subject of the complaint, to determine whether there is any
substance to the dispute before upsetting the subject. The
company might also Nish to proceed discretely at the initial
stages in order to avoid any possibility of collusion between the
subject of the investigation and potential witnesses. But at
some stage in the investigation the witness should be given fair
notice of the allegations, a reasonable opportunity to compose
himself, to consult his memory, to review any relevant records
and to obtain the advice of legal counsel. I note that
complainants in sexual harassment cases, under the company
policy, are expressly told by the policy that they may bring an
adviser with them.
145 As already mentioned, Mr. Fehr was not given, in all the
circumstances, a fair opportunity to know the case against him
and to respond to it. The company viewed this matter as
coming under its discrimination and harassment policy that
"casual and unfair handling of a complaint or investigation will
not be accepted. Both the complainant and alleged offender,
will be treated with sensitivity, fairness and objectivity at all
times". The manner in which Mr. Fehr was suddenly
confronted with four-year old allegations against him was not,
in any respectful view, fair or sensitive. -
1.46 Discipline cannot be set aside merely because it does not
conform to the letter of a company's own internal policies.
Discipline can be set aside, or at least mitigated, in light of
serious procedural unfairness. In some cases, in my view,
procedural unfairness may be so shocking that it warrants
complete reinstatement without penalty, even though the
dismissal would be warranted if it had been handled properly."
Notwithstanding the above comments, the Adjudicator determined that any procedural
injustice which may have occurred did not alter the disposition of the case. He found
that, quite apart from delay and the procedural defects, the penalty of dismissal was
excessive. A five (5)' month suspension without pay was substituted for the original
disciplinary sanction.
[273] The Adjudicator in Savage and Transport Ease and Management Services found it
unnecessary to make any finding on the question of fair process. He noted, however, that
the effect of such a finding is uncertain, as "the validity of a termination may or may not
be affected by procedural unfairness..." (paragraph 965).
[274] Counsel for the Union maintained that the grievor was forthright about the reasons
why she elected to enter into a Peace Bond. She noted that the grievor wanted to avoid
the risk of a conviction and was interested in finally resolving the matter and moving on
with her life. Counsel further noted that the extent of legal fees was also a consideration.
She referenced the following awards on this issue: Alberta Union of Provincial
Employees and Government of Alberta (Khan Grievance) (2004), 131 L.A.C. (4t) 118
159
(Elliott); and Plasti-Fab, a Division of PFB Coma, and United Steelworkers CtLardy
Grievance), [2010] B.C.C.A.A.A. leo. 202 (Sullivan).
[275] In Government of Alberta the grievor's employment as a Corrections Officer was
terminated following a conviction for sexual assault. The conviction was subsequently
overturned on an appeal and a new trial was ordered. On the trial date, counsel agreed to
resolve the matter by way of a Peace Bond. A reading of the award indicates that the
grievor agreed to the Peace Bond as he wanted the matter to end. The Arbitrator
observed that "without the criminal code conviction it became incumbent on the
Employer to provide clear and cogent evidence of the incident relied on for termination"
(paragraph #42). The grievor there was reinstated to his former employment subject to a
four (4) month suspension. On counsel's reading, the Arbitrator did not place any weight
on the fact the grievor entered into a Peace Bond and also denied the allegations which
had led to the criminal charge. Put another way, she argued that the fact the instant
grievor agreed to a Peace Bond is not dispositive.
[276] In lie Plasti-Fab, the grievor was discharged for threatening a co-worker. The
discharge was subsequently rescinded and the grievor was placed on layoff pending the
disposition of a criminal charge which had been laid against hien. When the matter later
came before the Provincial Court, it was resolved by way of a Peace Bond. The
transcript of the proceedings indicates that the grievor's lawyer advised the Court of the
argument between his client and the co-worker and then stated that ito
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"deteriorated and at one point the accused said "If I lose my
job, I'm going to shoot you", meaning Thompson, "In the face
and elsewhere, and I'm going to come back and shoot everyone
else and then I'm going to kill myself'. And Mh Thompson
said, "You don't have a gun". And the accused responded with,
"How do you know I don't have a gun?"
This statement subsequently became an issue at the grievor's arbitration hearing. The
Arbitrator commented as follows with respect to what was communicated to the Court:
"21 In regards to the admissions made during the section 810
recognizance hearing, the grievor explained his lawyer did not
tell him "word for word" what the allegation against him was
that was going to be agreed to. The grievor added he believed
his lawyer was merely going to agree there was a threat made
and that he (the grievor) was sorry. The grievor testified he was
"surprised" when he heard the account agreed to by his lawyer,
but did not say anything because, in any event, he could not
afford to fight the charges and risk receiving a criminal record,
which the agreed upon recognizance order did not leave him
with."
46 Unlike Toronto v. C.U.P.E., where the court heard
evidence from both the complainant and the respondent/grievor,
and the arbitrator heard only from the respondent/grievor and
not the complainant, the court in the peace bond proceeding in
the present case did not receive viva voce or documentary
evidence, but at arbitration both the complainant (Mr.
Thompson) and the respondent/grievor, and others, testified and
were subjected to cross-examination. In these circumstances I
accept it is open for the Union to argue, and for a board of
arbitration to find on all of the evidence, a different set of
circumstances than that which fonned the basis of the
recognizance order. An explanation by a respondent/grievor to
the effect that he did not dispute facts in a peace bond
proceeding because he could not afford the legal costs and did
not want to risk getting a criminal record, cannot be completely.
dismissed out of hand without due consideration."
161
Counsel for the Union submitted that the logic expressed in the latter paragraph is
directly applicable to the circumstances of this case.
[277] Counsel for the Union referenced all of the medical notes provided by the grievor
to the Employer after she went off work. It was her submission that the grievor kept the
Employer up to date with respect to her medical condition and ability to return to work.
She emphasized that between the date the grievor left work to the date of her termination,
the grievor was not asked for any further medical information to support her absence.
Counsel argued that the Employer could have made such a request pursuant to article
16.44 a) of the collective agreement. She further suggested that the Employer could have
asked the grievor to undergo an independent medical examination, if it doubted the
legitimacy of her absence. Instead, the Employer accepted the medical notes provided by
the grievor without question.
[278] Counsel for the Union stated that the grievor experienced anxiety, lack of sleep
and loss of appetite over the period material to this dispute. She asserted that Dr.
Wahby's Attending Physicians Statement dated May 13, 2012, which was prepared post-
termination for Manulife Financial in aid of a LTD application, provided additional
support with respect to the grievor's condition. Counsel noted that Dr. Wahby reported
the following therein: the primary diagnosis was severe anxiety; the grievor's current
CAF score was fifty percent (50%) or less; she had been prescribed cipralex as a
medication; and a psychiatry consult might be arranged. I note that Dr. Wahby listed his
162
patient's subjective symptoms as anxiety, insomnia, anorexia, and low self esteem. He
further reported that the grievor's symptoms were getting more severe. l was also asked
to consider and give weight to the non-medical evidence of the grievor, the grievor's
mother and Ms. Moore as to how the grievor's health was impacted following the
criminal charge.
[279] Counsel for the Union observed that the Employer did not object to the
introduction of Dr. ahby's medical notes and his later report or give notice that it would
so object if he did not attend personally to give evidence. She submitted that such notice
should have been provided here so that the Union could have turned.its mind to calling
Dr, Wahby as a witness. Counsel suggested, in the alternative, that the Employer could
have called Dr. Wahby to testify. From her perspective, the Employer in the
circumstances was not in a position to say the Union's evidence was insufficient in the
I
absence of Dr. ahby's attendance. Counsel argued that it would be wrong to draw an
adverse inference against the Union, given that it was not advised of the Employer's
concern at an earlier point in the proceedings.
[280] Counsel for the Union asserted that the Employer had no firm basis to conclude
that the grievor abused sick time privilege with Community Living Tillsonburg and
Service Canada. On her analysis, its conclusion was premised on "non-medical
suspicion" and circumstantial evidence. She referred to the grievor's attendance at the
Special Olympics Basketball Tournament in February, 2012 and her assistance with the
163
Tillsonburg Minor hockey Tournament the following month. Counsel reiterated that if
the Employer had concerns about these instances of the grievor being out in the
community, it should have asked for further medical information or, at a minimum, some
explanation from her. It was counsel's submission that, as the Employer elected not to do
so, it cannot now rely on doubt and suspicion to establish an abuse of sick leave. For the
record., I note that the Employer does not rely on the grievor's request for time to attend
the Union Convention in support of its position on this issue.
[281] Counsel for the Union submitted that a prima facie case had been made with
respect to the grievor's illness and inability to work. She emphasized that the Employer,
apart from its suspicions, did not present any contrary medical evidence in relation to the
grievor's state of health. Counsel argued that.the evidence roust be clear if sick leave
abuse if claimed given that such misconduct constitutes fraud. She asked me to find that
the Employer failed to discharge its onus on this aspect of the case. In the alternative,
counsel maintained that, if there was an abuse of sick leave, then the Employer's failure
to obtain further medical information should be treated as a mitigating factor.
[282] The Union relies on Providence Care -Mental Health Services, previously cited,
and Telecommunications Workers Union and Telus Co Muni Grievance), [2006]
C.L.A.D. No. 57 (McFetridge) in support of the above arguments,
[283] Counsel argued that the following paragraphs from the Providence Care -Mental
Health Services award are directly applicable to the circumstances of this case:
164
6624 After assessing the grievor's testimony against the
available evidence, it is my conclusion that she was a credible
witness. The grievor did not try to tailor her evidence to meet a
specific theory of her innocence, as is often the case with
deceitful witnesses. She admitted facts, even when it might
have served her "story" better to deny or contradict them. For
example, she admitted without hesitation that the actions she
performed while she was off work were consistent with the
activities she performs at work. There were other examples
during her testimony when she gave similar answers that left an
impression of an individual testifying in an open and candid
manner, and I shall refer to some below. Moreover, the very
way in which the grievor conducted herself during her time off
does not indicate a sense of guilt or the actions of someone
attempting to engage in fraudulent abuse of sick leave. If the
grievor had not really been ill, as the employer asserts, and was
merely manipulating her doctor to secure unneeded time off,
one would not expect her to attend at the workplace to collect a
shoe allowance, or to go about a relatively small community
engaging in everyday activities. The fact that she did so
indicates a lack of a guilty mind or the type of manipulative
calculation one would expect if she had been involved in a
fraudulent scheme. It is also important, of course, that none of
the grievor's observed activities were inconsistent with her
medical condition or her treatment, a fact I will return to in
greater detail below.
26 The employer took the position that the medical evidence
did not support the grievor's absence. I do not agree. Taken as
a whole, the medical evidence supports the grievor's condition
as well as the circumstances of her absence. My conclusion is
that the employer's view of the grievor's leave of absence was
coloured and shaped by non-medical considerations, which led
to suspicions, which appear to have solidified as assumptions.
It was as a result of these non-medical considerations that the
employer failed to give due weight and objective consideration
to the medical evidence and that led ultimately to the grievor's
termination.
165
31 It may well be that the grievor was physically capable of
performing her duties. The question is whether she was, as the
employer concluded, capable of attending work, i.e. did she
have the mental or emotional capacity to continue to fulfill her
employment obligations during this period. This question is a .
medical question, and with all due respect to the grievor's
managers, only a medical professional would be in a position to
give a meaningful opinion on the subject. Mental illness or
emotional distress is not like a broken arm, and the outward
manifestations may be masked and unobservable.
47 I do not accept this assertion. The grievor was not
physically injured; she was suffering from psychological
disabilities, diagnosed by her doctor as depression and anxiety.
It is self-evident to any objective observer that an individual's
psychological capacity cannot always, or even often, be
assessed on the basis of outward appearance. More
importantly, a determination of psychological ability cannot
turn on the observations of non -experts, whether they be
supervisors or, through the agency of video surveillance,
arbitrators.
77
[284] In Telus Co urji Grievance , which involved a discharge for abuse of
sick leave, the onus of proof was outlined as follows:
"97 The onus of proof rests with the Company and the
standard of proof is the civil standard based on a balance of
probabilities. It was not disputed that due to the nature of the
allegations in this case, the Company must support its
allegations with clear, cogent and convincing evidence....."
Counsel for the Union also submitted that the following passage from the award applies
to the circumstances of this case;
RM
Where the dismissal of an employee who is on a medically
166
approved leave is under consideration, great care should be
taken to examine whether there is an explanation for the
apparent misconduct which is to be the grounds for dismissal.
This would be especially so where the employee is suffering
from a psychological illness and may not be fully rational and
responsible."
[285] Counsel submitted as follows with respect to the test set out in the 1Vlillhaven
Fibres Ltd. award:
i) There is no evidence that the Employer's reputation or product could
have been harmed or affected in this instance. Counsel observed that
none of the grievor's behavior was made public;
ii) The grievor remains able to perform her duties satisfactorily. Counsel
argued that the grievor could continue to perform her job in a
professional manner, as before. In this regard, she noted that the grievor
and IVIS. Stevens maintained a professional relationship when working
together;
iii) The: third branch of the test is inapplicable given that the Employer
withdrew its allegation that the grievor bullied and intimidated co-
workers. I note that counsel for the Employer, in reply, asserted that he
was still entitled to rely on Ms. Fehrman's feeling of discomfort when
she worked with the grievor, notwithstanding the aforementioned
withdrawal;
iv) There was no fording of guilt for a serious breach of the Criminal Code
and the allegation of harassment of Ms. Stevens was not proven; and
v) The Employer should not be permitted to blame the grievor for the
effects flowing from its management of the investigation. Counsel
submitted that if there had been a "real investigation", with a clear start
and finish, the period during which Ms. Stevens was restricted from
working in certain Homes could have been significantly reduced.
Similarly, counsel argued that Ms. Matthews would not have been
needed at the Special Olympics Basketball Tournament, if the Employer
had opted to not assign Ms. Stevens to that shift. Simply put, it is the gist
of the Union's position that reinstatement of the grievor would not impair
167
the ability of the Employer to efficiently manage its works and to
efficiently direct its working forces.
[286] It is the position of the Union that the grievor did not harass Ids. Stevens, as
alleged. Counsel, in the alternative, argued that if there was some cause for discipline,
the sanction of discharge was excessive. She noted that the grievor is a twenty (20) year
employee and that the only blemish on her work record is the Letter of Concern dated
October 24, 2011.
[287] Counsel for the Union argued that, in any event, the discipline imposed should be
voided because of the fundamental flaws in the investigative process. In her view, there
was no meaningful 'investigation. She asserted that the matter should have been better
handled given the extremely serious ramifications of a finding of on-going harassment of
a co-worker. Counsel stressed that this was particularly so given that Tillsonburg is a
relatively small community and that the grievor had developed a close relationship with
many other staff over the lengthy period of her employment. She reiterated that the
Employer had a "high duty of fairness" to the grievor, separate and apart from the
Harassment In The Workplace Policy. In the alternative, counsel submitted that the
flawed process adopted by the Employer should serve to mitigate the penalty, She stated
that these same mitigating factors should apply to the allegation relating to the abuse of
sick time. Counsel referenced the fact that the Employer did not ask for further medical
documentation from the grievor during the period she was away from work prior to the
termination.
168
[288] Counsel for the Union submitted that this is not the type of extraordinary case
where damages should be marded in lieu of reinstatement. She observed that four (4)
years have ,passed since the termination and that this has resulted in "a lot of time for
feelings to cool". She also referenced the following the grievor acknowledged in her
evidence that she could have given Ms. Stevens "more room" and that perhaps her former
friend wanted more time with her family; the grievor recognized that IIs. Stevens'
feelings may have been valid at the time; the grievor's evidence that her perspective on
the events has changed with the passage of time and that she is now able to see "a
different side of things"; and there have been respectful interactions between the grievor
and hits. Stevens at Union meetings. With respect to the latter point, counsel suggested
that after four (4) years, they both have "figured out how to co -exist in the same space".
Counsel stressed that this is material as, in her judgment, this entire case stems from the
relationship between these co-workers. For all of the above reasons, I was asked to allow
the grievance and to reinstate the grievor with full compensation.
[289] As mentioned, the working relationship between the grievor and Ms. Stevens
transitioned into a close personal friendship within a matter of months of the
commencement of the latter's contract at the Allan Street Home in August, 2009. 1
accept, on the evidence, that the friendship was mutual, genuine and intense. Clearly,
there were some ups and downs during this initial period of their relationship. The
incident relating to Ms. Stevens' failure to accompany the grievor to the Buffalo Sabres
169
hockey game in Larch, 2010 is reflective of this. I am satisfied, however, that the period
of the Allan Street contract is not all that significant to the ultimate resolution of this
case. Father, what occurred in that time frame simply sets the context for, and
foreshadows, what later occurred between these two (2) individuals.
[2901 There is no doubt that both the grievor and Ms. Stevens understood that the nature
of their relationship would change following the end of the Allan Street contract in
August, 2010. Their respective views and concerns about how the relationship would
continue going forward is documented in paragraph [16] of this Award. In the final
analysis, this dispute arises because of the fact that both the grievor and Ms. Stevens
gradually formed different opinions with respect to the nature and extent of their
friendship.
[2911 The grievor's email to Ms. Stevens dated September 3, 2010 suggests that the
relationship had already started to deteriorate very early on after the expiry of the Allan
Street contract. As stated, the grievor accused Ms. Stevens of ignoring her cry for help
and expressed a sense of jealousy over the fact Ms. Stevens was spending more time
socializing with other friends and co-workers than with her. The tone of this
communication was emotional, resentful and angry. On my reading, the grievor was
reacting negatively to the changes which had started to occur in the relationship.
[292] The grievor subsequently extended two (2) invitations to Ms. Stevens in March,
2011. The first dated March 18, 2011 invited Ms. Stevens to accompany the grievor to a
170
play in Toronto. The second dated March 24, 2011 invited Ms. Stevens to have dinner at
The Keg Restaurant in Haid -April to celebrate their respective birthdays. Ills. Stevens
declined the first request for reasons ostensibly related to her family. It was her evidence
that she was trying to be polite and civil to the grievor, as they still had to work together
on occasion. As previously noted, Ms. Stevens did not respond to the second invitation,
much to the grievor's chagrin. Ms. Stevens explained that her failure to respond was
motivated by a desire and intent to distance herself from the grievor. After due
consideration, I accept Ms. Stevens' evidence on this point. I am satisfied that as of
March, 2011, she wanted a less intense relationship and one that would not occupy as
much of her time and emotions.
[293] It is apparent that the grievor did not react well to Ms. Stevens' failure to respond
to the dinner invitation. This is evidenced by the content of her facebook message to Ms.
Stevens of April 3 and her subsequent email of April 14, 2011. The last communication,
which has been reproduced above, included the statement, "Just to be ignored once
again". The grievor testified that she did not think Ms. Stevens was trying to pull back
from the fiiendship at this juncture. In my judgment, she was not getting the message
Ms. Stevens was trying to send. I note IVIS. Stevens' evidence that, in her mind, the
relationship had changed, albeit she was still communicating with the grievor.
[294] The grievor's in person meeting with Ms. Stevens on May 3, 2011 is described in
paragraph [27] of this Award. When considered in conjunction with everything that had
til
occurred since the end of the Allan Street contract, I think it should have been clear to the
grievor that Ms. Stevens no longer wanted a friendship as intense as before, and that she
did not want the grievor to be as actively involved in her family life. I accept that Ms.
Stevens did not clearly express that she wanted the grievor to "back off ' during their
discussion on May 3ra. It was her evidence that she was trying to be polite and did not
want to hurt the grievor's feelings. From the grievor's perspective, she and Ms. Stevens
were still friends at this point, although she recognized the presence of some tension its
the relationship. I note that the grievor, in her email to Ms. Stevens following their May
3 discussion, acknowledged that there had been a change in the friendship. She stated
therein that she wished the friendship could return to what it was before. In her words,
she wanted her friend back.
[295] As noted, the grievor sent a number of facebook messages to Ms. Stevens in the
period May 16 to May 25, 2011. Ms. Stevens did not respond to many of these
messages. This led to the grievor's message of May 26h in which she stated that she was
unsure why Ms. Stevens was not responding and advised that she did not like it. Again, I
think it should have been clear to the grievor that Ms. Stevens did not want to continue
the friendship at its former level of intensity.
[296] Ms. Stevens' facebook message to the grievor of June 21, 2011 is set out at
paragraph [30] of this Award. Its wording suggests that Ms. Stevens' friendship with the
grievor continued to exist, if not at the same level as before. Ms. Stevens testified that as
172
of June 21', her relationship with the grievor was "not completely done". The content of
the message also indicates that she was still willing to communicate with the grievor. I
note, however, that Ms. Stevens did not respond to the grievor's facebook messages of
July 7 and July 9, 2011, both of which invited her for a coffee, and that she responded to
only one (1) of ten (10) text messages forwarded to her by the grievor in the period from
July 12 to July 16, 2011. Ms. Stevens did respond, in an angry fashion, on July 18, 2011
to the grievor's second facebook message sent on the prior day. After addressing the
grievor's negative personal comments, and what she perceived to be a threat of suicide,
Ms. Stevens wrote that, "I will not continue this way". The content of her response, in
my view, establishes that Ms. Stevens was then starting to contemplate a complete end to
the friendship. In her evidence, the grievor did acknowledge that Ms. Stevens may then
have been "partly pulling away" from the relationship. I am inclined to think that she
underestimated Ms. Stevens' intent at the time. In my judgment, it should have been
clear to the grievor that the friendship was, at a minimum, very close to being over. Her
facebook message to Ms. Stevens of August S, 2011, in which she asked for "a fresh
start" to the friendship, indicates an awareness that it had seriously deteriorated.
[297] During this period, Ms. Stevens did not make any complaints to the Employer
about what was happening in her relationship with the grievor. I consider it likely that
she viewed it, as of the beginning of August, 2011, as a personal, and not an employment,
matter. Apart from the perceived threat of self hann,.of which more is said below, I
173
conclude that none of the facebook messages, ernails or in-person exchanges referenced
above amounted to harassment by the grievor. Put another way, I do not think she would
have reasonably known that these communications were entirely unwelcomed.
[298] 1 have closely reviewed the grievor's facebook messages to Ms. Stevens of April 3
and July 17, 2011 and all of the text messages cited in paragraph [3 7] of this Award. I
reject the grievor's assertion that these communications were not sent as a threat of
suicide or self harm but were, instead, meant to convey that she was planning to move
away from Tillsonburg. A fair reading of the messages does not support such an
interpretation. I find, rather, that the grievor was threatening to take her own life and ar
inclined to accept the Employer's submission that she did so in order to manipulate Ms.
Stevens into more fully explaining what went wrong with their relationship. While Ms.
Stevens' side of the communications is not in evidence, I do not view that as material
given the clear intent expressed in the messages. I further reject the grievor's claim that
she did not know Ms. Stevens would perceive the messages in this fashion. On the
evidence, I consider it more likely than not that she was aware a close friend and co-
worker of Ms. Stevens had previously taken her own life and that she was deeply
troubled by the incident. In this context, Ms. Stevens' response to the grievor of July 18,
2011 is fully understandable. In all of the circumstances, I conclude that the grievor
should have known that her messages would be unwelcomed. I note Ms. Stevens'
evidence that the communications led her to ask Ms. Foden to attend at the grievor's
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residence to check up on her. Additionally, her concerns about the threat of suicide were
later communicated to Ms. Hudson during their initial meeting on October 18, 2011. To
be clear, Ms. Stevens did not complain to the Employer earlier about these messages.
They are, nevertheless, relevant as they reflect a pattern of persistent and obsessive
behavior on the part of the grievor.
[299] There are a significant number of conflicts in the evidence concerning the incident
at the Potters Road Nome on August 20, 2011 including the following: the start time of
Ms. Stevens' shift that day; how the grievor knew Ms. Stevens was working at that Dome
on the evening in question; whether Ms. Stevens responded to the grievor's initial text
message; the time at which the grievor arrived at the Potters Road Home; who initiated
the discussion about the friendship and at what stage did it commence; what was
communicated by the grievor and Ms. Stevens during their exchange; whether the
discussion was "calm and quiet" or was a "heated argument"; the demeanour of the
grievor and Ms. Stevens during the discussion; and the impression of each at the
conclusion of same. It is extremely difficult to reach firm conclusions on each and every
discrepancy in the accounts presented by these two (2) individuals. On balance, however,
I generally prefer the version of events advanced by Ms. Stevens. This disposition is
premised on the following:
i) I think it more likely than not that Ms. Stevens would know the start time
of her own shift;
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ii) If, as claimed by the grievor, Ms. Stevens did not respond to her initial
text message, why would she think she would act differently and respond
to the later second text?;
iii) During the period material to this case, the grievor attended at another of
Ms. Stevens' work locations in the early morning hours. On the
evidence, she dropped off a coffee for Ms. Stevens at the John Street
Lorne on September 30, 2011 at some point between 4:00 a.m. and 6:45
a.m.,
iv) I consider it more likely than not, given what had occurred in the prior
six ( 6) month period, that the grievor attended at the Potters Road Dome
seeking answers to her questions about the status of the relationship and
why it had deteriorated. In view of the circumstances, I think it likely
that the grievor initiated the discussion on these subjects;
v) I find it difficult to accept the grievor's evidence that the ensuing
discussion was "calm and quiet" and did not amount to a "heated
argument". It is hard to reconcile this evidence with her
acknowledgment that Ms. Stevens was angry at the end of the exchange.
The grievor was unable to answer why Ms. Stevens became angry if
there was no heated argument. I note that Ms. Stevens' account of what
transpired is consistent with what she later told Ms. Hudson on October
18, 2011; and
vi) While it is difficult to precisely determine what was communicated
during the exchange, I think it more likely than not that Ms. Stevens, in
substance, advised the grievor that the friendship was over. Such a
statement would have been consistent with the direction the relationship
had been going in the prior months. I doubt, in view of the context, that
Ms. Stevens would then tell the grievor she was unsure where it was
headed going forward. I am inclined to conclude that the grievor was
simply in denial when she claimed the friendship was just "in limbo". I
also find it difficult to accept her assertion that the friendship would have
been over that evening if Ms. Stevens had communicated that intent in a
clear and direct fashion. That result would have been inconsistent with
the way she had previously responded to any suggestion the relationship
was close to its end.
J76
[3 00] On Ibis. Stevens' account 'ofwhat occurred at the potters Load Home on August
20, 2011, she intended to, and did in fact, end the friendship. In contrast, the grievor
maintained that she was just attempting to determine the status of the friendship and to
understand why it had gone off the tracks. On the evidence, Ms. Stevens agreed, perhaps
somewhat reluctantly, to speak to the grievor that evening. On my analysis, the
discussion, though ill-timed, was consensual. Ultimately, I am unable to find that the
grievor harassed Ms. Stevens on August 20th. I do, however, conclude that what occurred
that evening served to set the parameters for what would be considered as appropriate and
reasonable behavior by the grievor going forward.
[301] As mentioned earlier, the griever emailed Ms. Stevens on August 26, 2011, shortly
after their exchange at the Potters Road Nome. The grievor appeared to recognize therein
that her friendship with Ms. Stevens was rapidly deteriorating, as she asked for
forgiveness and for a further opportunity to finish the conversation which had begun at
Potters Road. IVIS. Stevens did not respond to this email or to the g ievor's subsequent
facebook messages of August 31, September 5 and September 8, 2011. The latter
messages all, in effect, implored IVIS. Stevens to finish the earlier discussion. This failure
to respond is consistent with Ms. Stevens' evidence that the friendship was over as of the
August 20th exchange at the Potters Load Nome. I do note that the grievor and Ms.
Stevens had a brief chat on facebook on September 2, 2011 between 10.13 p.m. and
10:27 p.m. Their comments were short and did not relate to anything of substance. I do
177
not construe Ms. Stevens' contributions to the chat as reflecting an intent or interest in
continuing the relationship.
[3 02] On nay reading, Ms. Stevens' facebook message of September 9, 2011 clearly
evidences a decision on her part to end the friendship. She expressly communicated that
she was "done" and asked the grievor to respect her request to "back off'. Additionally,
IVIS. Stevens informed the grievor that she did not want any visits at work or gifts for
either her or her family. I accept IVIS. Stevens' evidence that the personal relationship
was over as of September 9th. What remained was their relationship at work. As stated
in the message, IVIS. Stevens told the grievor that she hoped that relationship would be
professional.
[303] I do not accept the grievor's evidence that she interpreted the above message to
mean lids. Stevens was just done with the Potters Load discussion and did not want to
pursue it further. I am satisfied that Ms. Stevens was talking about much more than this
earlier discussion. The grievor seemed blind to the fact that Ms. Stevens was actually
putting an end to the friendship, once and for all. Without doubt, the message of
September 9th reflected more than simply a rough patch in the relationship, as suggested
by the grievor. If the Potters Road exchange did not represent the "line in the sand", this
communication certainly did. Vhen viewed in conjunction with everything that had
occurred in the prior six (6) month period, it should have been abundantly clear to the.
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grievor that Ms. Stevens did not want any further contact with her, apart from instances
where they might interact at work.
[3 04] Notwithstanding the above, the grievor continued to contact Ms. Stevens. Her
emails to Ms. Stevens of September 12, September 17 and September 21, 2011 are
referenced in paragraphs [55] and [57] of this Award. As noted, Ms. Stevens did not
respond to these communications. I find that lis. Stevens, at that juncture, could
reasonably form the impression that the grievor was not going to stop her efforts to
communicate with her.
[3 05] The fact the grievor opted to drop a coffee off for Ms. Stevens, while the latter was
working an overnight shift at the John Street Hoene on September 30, 2011, clearly
demonstrates that the grievor did not get the message Ms. Stevens tried to deliver in her
facebook message of September 9th. To the contrary, for all intent and purposes, she
essentially ignored that message. It is readily understandable why this incident would
cause Ms. Stevens to feel nervous, as the grievor had entered her workplace unannounced
during the early hours of the morning. I am persuaded that the grievor should have
known that such a gesture on her part would not be welcomed by Ms. Stevens. The prior
history of dropping off a coffee for Ms. Stevens was clearly broken by the above-
mentioned facebook message. Given all of the circumstances, I conclude that this
incident can be viewed as an instance of personal harassment. It could also reasonably
lead hits. Stevens to believe that she might have to do something further to confront the
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grievor's continuing behavior. I note that in cross-examination, the grievor, ultimately,
acknowledged she supposed it was wrong to drop off the coffee at John Street.
[306] Ms. Stevens' observation of the exchange between the grievor and her husband at
the arena on October 17, 2011 could, in all of the circumstances, lead her to think that the
grievor was unwilling to leave her or her family alone. It could also reinforce the belief
that her personal efforts to stop such contact were not resonating with the grievor. This
was likely further reinforced by the receipt of the grievor's facebook message on her
return home from the arena. That message is reproduced, in part, in paragraph [60] of
this Award. The grievor therein admitted to `obsessive ways" and asserted that Ms.
Stevens would continue to hear from her. In view of the clear direction given to the
grievor on September 9t", I find that Ms. Stevens could reasonably think she was being
harassed by the grievor. I note her fearful comment that at that point she could no longer
predict what the grievor was going to do. This concern was compounded by the grievor's
angry response to being defiiended on facebook. I note Ms. Stevens' statement that this
reponse scared her as she no longer knew what the grievor was capable of
[3 07] Ms. Stevens initiated her complaint to the Employer on October 18, 2011. Ms.
Hudson subsequently had a short telephone conversation with the grievor on October 21"
and then met with her in person on October 24th. My findings with respect to this aspect
of the case are as follows:
i) I cannot find fault with Ms. Hudson's handling of the October 21 St
telephone call. The conversation on all accounts was very brief. It did,
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however, provide Ms. Hudson with the opportunity to apprise the grievor
of the gist of Ms. Stevens' complaint. At that point in time, the grievor
had already spoken with Constable Lester and had been informed of Ms.
Stevens' concerns. I doubt that the grievor was surprised by anything
said to her by Ms. Hudson on October 21". In substance, the telephone
call simply set the stage for an in-person meeting on the following
Monday;
ii) I think that Ms. Hudson was entitled to inform the grievor during the
telephone exchange that the Employer would develop a plan to keep the
two (2) employees apart while at work. Given the potential seriousness
of the allegation, it was prudent for the Employer to establish a protocol
even if it proved to just be an interim measure;
iii) As mentioned, at the meeting of October 24ffi, the grievor was not
provided with any written complaint from Ms. Stevens nor was she given
the particulars of Ms. Stevens' specific concerns. I conclude that the
specifics of Ms. Stevens' complaint should have been communicated to
the grievor more fully at this meeting. The provision of more detailed
information might have resulted in a more focused and complete
response from the grievor. On the evidence, it appears that she did not
ask any questions, or say much, at the meeting. I do, however, think it
more likely than not that the grievor knew what led Ms. Stevens to file a
complaint, given that their relationship had been deteriorating for a
considerable period of time;
iv) I find that the letter of October 24, 2011 was somewhat premature. At
that juncture, the grievor had not been given a full opportunity to respond
to the specific allegations made by Ms. Stevens. I accept that the
protocols set out in the letter, and the requirement for mandatory
counselling, suggests that the Employer by then had already determined
there was merit to Ms. Stevens' complaint. I note Ms. Hudson's
statement that, as of October 24'', she saw the grievor's behavior as
amounting to harassment at work. Notwithstanding the forgoing, I
recognize the validity of the Employer's belief that it had to act quickly if
another employee's safety was at risk;
v) i see no real issue with the Letter of Concern of October 24, 2011. In
many respects, it simply re -iterated the substance of the Employer's
policy relating to Visitors. Even if the policy, as written, did not accord
with day to day practice across the organization, the fetter clearly
established what the Employer's expectations were going forward. In
this regard, it proved successful as the grievor made no later visits to a
Home at which Ms. Stevens was working;
vi) I further accept that the grievor was afforded the opportunity to have a
Union Steward present at the October 2e meeting. On the evidence,
she chose not to take advantage of the offer either at the outset or during
the course of the meeting, and
vii) While there was an existing Harassment In The Workplace Policy in
effect, some consideration should be given to the fact that this was the
first time the Employer had to address a harassment complaint between
co-workers.
[308] Constable fester testified that Ms. Stevens was upset, frustrated and fearful when
she gave her video statement on October 19, 2011. Constable Lester did not then doubt
the legitimacy of what she was told or the authenticity of Ms. Stevens' emotions. Her
evidence provides some support as to the existence and extent offs. Stevens' concerns.
[309] The grievor subsequently met with Constable Lester on October 20, 2011. She
was then advised that further contact with Ms. Stevens was not welcomed and that a
charge of criminal harassment could result if that advice was not heeded. in retrospect, it
was the grievor's apparent failure to comply with this direction that led to the laying of a
criminal charge in January, 2012. 1 do note that the grievor stopped communicating
electronically with Ms. Stevens after the latter involved the Employer and the Police.
[3 10] The grievor acknowledged that her comments in relation to Ms. Moore's facebook
posting of November 13, 2011 about the `Seven Dwarves of Menopause' were directed at
Ms. Stevens. The initial posting and the grievor's subsequent comments were clearly ill-
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advised. The grievor, even though she did not mention Ms. Stevens by name, was in
effect calling her a psycho. I consider it very likely that Ms. Stevens, and other
employees able to access the posting, could reasonably conclude that she was the target
of the comments. Given all of the preceding events, I am satisfied that the grievor's
comments could be considered as a form of harassment through the vehicle of social
media. In any judgment, the Employer could have imposed discipline at the time.
[311] I also have some doubt about the grievor's assertion that her facebook posting of
November 26, 2011 was not directed at Ms. Stevens. She was unable to recall precisely
what the posting was about. She assumed, however, that both Ms. Van den Bergh and
Ms. Moore were speaking about Ms. Stevens in their comments. I find it interesting that
the grievor believed she was the only person not talking about Ms. Stevens. On my
assessment of the evidence, this posting simply represented a continuation of the
facebook discussion concerning the breakup of the grievor's friendship with Ms. Stevens.
[312] I accept that Ms. Hudson could legitimately be concerned by both postings, as it
appeared that the issue between these two (2) co-workers was being broadly discussed on
social media. Such a development had the real potential to adversely impact the
workplace environment. It is also of significance that Ms. Hudson had spoken of the
need for confidentiality during her first meeting with the grievor on October 24, 2011.
The issue was raised a second time at their later meeting of December 6, 2011.
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[313] A lot of evidence was presented in this proceeding with respect to the following
allegations: the griever driving by Ms. Stevens' home in early November, 2011; the
grievor driving in Ms. Fehrman's subdivision, in close proximity to Ms. Stevens' home,
in late November, 2011; the grievor driving through the four (4) way stop sign at Lisgar
and Concession Streets on November 1, November 15, November 29 and December 13,
2011; the grievor driving by the Potters Road Dome on December 9 and December 15,
2011; the grievor driving through the three (3) way stop at Bridge and Lisgar Streets on
December 265 2011; the grievor being in Goderich that same day; the grievor driving
along Lisgar Street, in close proximity to the Queen Street Lorne, on December 28, 2011;
and the grievor following Ms. Stevens out of a Tim Hortons in the latter's area. My
conclusions in relation to these allegations are as follows:
i) As mentioned, the griever admitted to one (1) drive-by of
Ms. Stevens' residence on or about November 7, 2011. 1
consider it significant that Ms. Stevens reported other drive-
bys to Constable Lester, including ones on November Sth
and November 10th. I think it unlikely that Ms. Stevens
would have reported these sightings to the Police if they did
not occur. I note that the date of these drive-bys preceded
the warning Constable Lester gave to the grievor on
November 22 d;
ii) Ms. Fehrman's evidence, if accepted, would serve to
corroborate Ms. Stevens' assertion that the grievor drove by
her home and in her subdivision in November, 2011. 1 have
been persuaded, however, that Ms. Fehrman's evidence may
not be reliable on this point. This witness adamantly
maintained that she and Ms. Stevens had an understanding
that they would not discuss the status of the latter's
friendship with the grievor. I ani inclined to think that,
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because of her close friendship with Ms. Stevens and the
frequency of their contact, Ms. Fehrman did in fact speak
with Ms. Stevens about the grievor. Such discussion would
likely explain how Ms. Fehrman would know about the
invitation to the play and the birthday gift of the Coach item,
both of which occurred before she started to work with the
grievor at the Glendale Street Home in late July, 2011. I
accept the suggestion of Union counsel that there would
have been no reason for the grievor to bring up these past
matters, particularly in the context described by Ms.
Fehrman. I find that Ms. Fehrman was aware of what had
occurred previously because she likely talked about same
during her social interactions with Ms. Stevens.
Acccordingly, I cannot confidently accord much weight to
Ms. Fehrman's evidence relating to the drive-bys.
Additionally, I view it as unlikely that the grievor would
drive in Ms. Fehrnnan's and Ms. Stevens' subdivision
shortly after receiving the warning from Constable Lester on
November 22"d;
The grievor acknowledged the following during the course
of her evidence: it was possible she proceeded through the
four (4) way stop at Lisgar and Concession Streets on
November 1, November 15 and November 29, 2011; she
likely was at that location on December 13, 2011; she
proceeded through the three (3) way stop at Bridge and
Lisgar Streets at about 3.00 p.m. on December 26, 2011; and
she very likely travelled on Lisgar Street, in close proximity
to the (ween Street Home, on December 28, 2011. These
drive-bys are very difficult to address and resolve given the
nature of the evidence. Were they simply a matter of chance
and coincidence or do they reflect an obsessive and
persistent disposition on the part of the grievor? ,after
considering the totality of the evidence, I find it suspicious
that all of the drive-bys occurred while Mils. Stevens was
working at a nearby location or at a time that they both just
happened to be out and about in the same part of the
community. dile I recognize that Tillsonburg is a
relatively small town, I remain unconvinced that these visual
contacts were all coincidences. NVMle the evidence is not
185
entirely clear, I think it likely that the allegations concerning
the above drive-bys factored into the decision of the Police
to lay the criminal charge in January, 2012;
iv) I am satisfied that a person looking out of the front window
of the Potters Road Home would be able to see and identify
a vehicle driving by. The photographs filed support this
conclusion. I also note that Ms. Moore ultimately seemed to
acknowledge this in her cross-examination.
Ms. Stevens reported to Constable Lester that she observed
the grievor drive by the Potters Road Home two (2) tunes on
December 9, 2011. In her evidence, Ms. Stevens asserted
that she saw at least ten (10) drive-bys on December 15,
2011. In my judgment, she was clearly mistaken about the
number of drive-bys that day. A staff member inside the
Home would likely have to stand close to the front window
for a considerable period of time in order to see ten (10)
drive-bys. On the evidence, it is unlikely an employee
would be able to devote that much time to such an effort
given the needs of the individuals being supported. I note
Constable Lester's evidence that Ms. Stevens reported that
there were only three (3) drive-bys on December 15th. Ms.
Stevens in cross-examination was prepared to acknowledge
that she may only have reported that number. The grievor,
in her evidence, denied that she engaged in any drive-bys on
the days in question. )While I am concerned about Ms.
Stevens' initial exaggeration about the number of drive-bys
on December 151,1 am satisfied that drive-bys did in fact
occur on both dates. As before, I do not think that Ms.
Stevens would report drive-bys to Constable Lester if they
did not occur. I note that with respect to the December 15th
drive-bys, Ms. Stevens testified that she was able to identify
the grievor as the driver on one (1) occasion. I also think it
material that she called her Manager to come to the Home
on that day. I doubt that she would have done that in the
absence of any drive-bys. Lastly, I conclude that Ms.
Moore's evidence on this aspect of the case reflected an
effort on her part to protect and support her friend. By way
of examples, I reference her initial reluctance to
186
acknowledge that a person inside the Home could see and
identify a vehicle passing by on Potters Road and her later
statements about the number of vehicles similar to the
grievor's SUV in Tillsonburg;
v) There is insufficient evidence to support a finding that the
grievor was in Goderich on December 26, 2011. I note
Constable Lester's statement that she had no reason to think
the grievor was actually in Goderich on that day; and
vi} There is similarly a lack of evidence to support that the
grievor had a practice of watching Ms. Stevens enter her
local Tim IJortons and then following her out as she
travelled back home or to work. The evidence with respect
to this accusation was vague and lacking in specifics. I
think that if this occurred to the extent complained of, Ms.
Stevens would have reported it to Constable Lester in a
timely fashion.
[314] As previously mentioned, at the meeting of January 17, 2012, Mr. Loftus
suggested that the Union's Equity Unit be resorted to in an effort to resolve the problems
between the grievor and Ms. Stevens. The grievor, to her credit, was prepared to
participate in such a process. It is unclear on the evidence as to why Mr. Loftus'
suggestion was not ultimately pursued. In retrospect, this was a lost opportunity, as this
is the type of case which cries out for third party mediation, or something akin to it. If
the process had been used, this dispute and the lengthy proceeding resulting therefrom
might possibly have been avoided. I note that on January 17th Ms. Hudson told Mr.
Loftus that, if the grievor stopped her behavior, the restrictions imposed on her were
likely to be lifted sooner than later. That communication is of some import, as it
187
evidences the fact that, as of that time, the Employer contemplated the grievor's
continued employment.
[315] Constable Lester, as noted, took a second video statement from Ms. Stevens on
January 10, 2012 to capture the incidents which had occurred following the first
statement in October, 2011. As stated above, it is likely that these later incidents were a
motivating factor for the laying of the charge of Criminal Harassment. A written
statement was also taken from lis. Foden on January 11, 2012. It is noteworthy that
despite all of the incidents occurring between October 24, 2011 and January 22, 2012, the
Employer did not impose any discipline on the grievor for the actions complained of
within that time period. It similarly elected not to act at the time of the issuance of Safety
Plan 93 on February 22, 2012. As mentioned, Ms. Hudson acknowledged that by then
the Employer had determined that the grievor had harassed Ms. Stevens.
[316] My conclusions relating to what occurred on February 25, 2012 at the Special
Olympics Basketball Tournament are as follows:
i) It is exceedingly difficult on the evidence to conclusively determine
whether the grievor only stopped at Glendale High School after she
observed Ms. Stevens in the parking lot or whether she intended all along
to go to the tournament consistent with her past practice The salient
question is whether the grievor should have known that the Nigh School
was a known place of employment for Ms. Stevens on that day for
purposes of the conditions outlined in the Promise To Appear. 1 am
satisfied that the grievor would not have known that at the time she
pulled into the parking lot. Once the grievor entered the gym, however,
and observed Ms. Stevens sitting on the team bench with the supported
person, she clearly should have known that Ms. Stevens was working that
morning. At that point, she should have immediately left the premises.
[ll
While the grievor did not do so, I note that she left within approximately
ten (10) minutes and that she made no effort to communicate directly or
indirectly with Ms. Stevens;
ii) The grievor acknowledged that, while she was speaking to Nis.
Ashkanase on the stage, she used the term "bitch" to describe both Nis.
Stevens and Ms. Matthews. I accept that the Employer might have been
entitled to impose discipline for this negative and disparaging comment
about a co-worker and a member of management;
iii) I do not think that the grievor followed Ms. Stevens, Ms. Matthews and
the supported person in her vehicle as they were driving to Tim Hortons
between games. On the evidence, it seems clear that the grievor was
proceeding to the nearby Burger Ding to meet Nis. Ashkanase; and
iv) It is difficult to determine whether the grievor "threatened" to find out the
names of those persons who filed reports with Constable Lester or
whether she said she would learn of their names through the subsequent
disclosure process. Ms. Ashkanase described her two (2) exchanges with
the grievor as "low key" and a "light -chat". I have to question these
characterizations in view of the fact she was sufficiently concerned about
what the grievor told her to speak to her Manager and to later file a report
concerning the incident. I doubt that Nis. Ashkanase would have taken
these steps if nothing out of the ordinary was said during the exchanges
in issue.
[317] As stated, the grievor agreed to enter a Peace Bond on April 17, 2012. It was the
grievor's evidence that, at the time, she did not know she had to acknowledge that she
gave Ms. Stevens reasonable grounds to fear her. She testified that her lawyer did not
explain to her that there was a requirement for this type of acknowledgment. I accept the
submission of counsel for the Employer that the conditions attached to entering a Peace
Bond must be given some effect. Clearly, the grievor had to admit to some wrongdoing.
Her denial that she was aware of this is somewhat problematic. I further accept,
189
however, that I must consider the grievor's evidence as to why she chose the option of a
Peace Bond rather than proceed to trial. In this regard, I found her statement that she
wanted to avoid the risks and legal costs associated with a trial to be fully understandable
given all of the circumstances. In my judgment, the reasoning expressed in Re Plasti-Fab
is applicable here. Simply stated, I do not think the grievor's agreement to enter a Peace
Bond is, by itself, dispositive of the question as to whether she in fact .harassed Ms.
Stevens to the point the latter became fearful.
[3 18] The evidence relating to the fear experienced by Ms. Stevens may be sumnnarized
as follows;
i) Ms. Stevens testified that as of mid-September, 2011, she was not afraid
that the grievor would cause her physical harm. It was her evidence that
prior to October 17, 2011, the grievor caused her "emotional harm";
ii) Ms. Stevens stated that she became more fearful after the incident at the
arena on October 17th and the receipt of the grievor's angry email of
October 19, 2011. In her words, she became scared as she no longer
knew or could predict what the grievor was going to do. It was at this
time that her feeling of being uncomfortable changed to fear;
iii) Ms. Hudson observed that at the meeting of October 18, 2011, Ms.
Stevens was distraught and was crying and shaping. Ms. Stevens there
advised Ms. Hudson that the situation with the grievor caused her to be
afraid for her family. I note that she subsequently sought the assistance
of Family Services London, as offered in the Employer's correspondence
of October 27, 2011; and
iv) Ms. Stevens advised that by December, 2011, she had become "very
cautious and concerned" and was looping over her shoulder.
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[3191 The grievor's evidence was that she never gave Ms. Stevens reasonable grounds to
fear for personal injury or damage to her property. She did accept, however, that Ms.
Stevens subjectively may have felt she had grounds to fear her. I note Constable Lester's
assessment that there were "no imminent safety concerns" sufficient to prevent the
grievor's release on January 22, 2012. In retrospect, and looking at the events from an
objective perspective, I am satisfied that Ms. Stevens was not at real risk of personal
harm or damage to her property. I do not wish to minimize, however, the emotional
strain caused by this interpersonal dispute. I have no doubt that the feelings she
experienced at the time were very real.
[320] Ms. Stevens testified that, after the Peace Bond was issued, she occasionally
reported potential breaches to Constable Lester. Constable Lester advised, during the
course of her evidence, that she was not provided with any information post April 17,
2012 which caused her to believe the terms of the Peace Bond had been violated. She
noted that no further charges were laid against the grievor. As indicated above, Ms.
Stevens testified about an incident, which occurred on or about April 24, 2012, where she
saw the grievor at three (3) distinct locations, namely the Canada Trust Branch at the
Tillsonburg Mall, Tim PIortons and Walmart, while she was out in the community with a
supported person. The grievor denied being present at any of these locations, but
acicrowledged the possibility that she may have gone to the Metro Store', across from the
Mall, that day. On the limited evidence available, it is impossible to reach a definitive
191
conclusion with respect to this allegation. I have some doubt, however, that the grievor
would follow Ms. Stevens around the community just days after entering the Peace Bond.
Such conduct would have exposed her to the very risks she had tried to avoid. in the
final analysis, I have not been persuaded that the grievor engaged in "a degree of
deliberate behavior", as suggested by counsel for the Employer.
[321] There is insufficient evidence to establish that Ms. Moore's complaint of May 23,
2012 against Ms. Stevens was filed at the behest of the grievor. I have no doubt,
however, that Ms. Moore was angry at Ms. Stevens and blamed her for the grievor's
termination. I suspect that this dynamic may have motivated, at least in part, the filing of
her complaint. While this complaint was post -termination, and cannot therefore serve as
a ground to support same, it does evidence the division which occurred in the workplace
around this matter. Ms. Hudson observed that there were "two camps" of employees, one
which supported the grievor and the other which allied itself with Ms. Stevens.
[322] The second post -termination incident addressed in the evidence is the situation
involving Ms. Gonne. In my judgment, Ms. Gome should have been called as a wiliness
to present first-hand evidence as to the content of her conversation with the grievor. Such
evidence would have been helpful given the discrepancies in the accounts of the grievor,
Ms. Moore and Ms. Hudson as to what occurred. In the absence of such evidence, I ani
left only with an excessive a_rnount of hearsay which cannot fairly be relied on. As a
consequence, this allegation has not been substantiated.
192
[323] The relevant policies of Community Living Tillsonburg have been set out at length
in this Award. I make the following observations with respect to same:
i) The Rules of Conduct expressly provide that employees are expected to
act appropriately whether at work or off duty. They further inform
employees that failure to follow a Manager's instructions; disclosure of
confidential information; unacceptable levels of absenteeism; and
personal harassment of others is unacceptable and subject to discipline;
ii) The Progressive Discipline Policy provides that the following acts of
misconduct may result in immediate termination: violation of policies
and procedures; insubordination; disclosure of confidential information;
unacceptable levels of absenteeism; and personal harassment of others;
iii) The Policy and Procedure relating to Confidentiality requires employees,
inter alfa, to maintain strict confidentiality regarding personnel matters.
Confidential information is defined therein to include personal matters of
staff. The Policy informs staff that any breach could initiate disciplinary
action;
iv) It is clear that the Policy relating to Visitors defines visitors as including
off-duty employees. On its face, it would not permit the type of off duty
visits the grievor had with Ms. Stevens prior to receiving the Employer's
Letter of Concern of October 24, 2011. I reject the interpretation placed
on the Policy by both the grievor and Ms. Moore;
v) I am satisfied that some aspects of the grievor's behavior towards Ms.
Stevens would be captured by the definition of harassment contained in
the Policy relating to Harassment In The Workplace in the sense it
amounted to "a course of vexatious comment or conduct that is known,
or ought reasonably to be known, to be unwelcome". The behavior
would also fall within the definition of harassment set out in the revised
policy of May 4, 2012, as reproduced at paragraph [214] of this Award.
The Policy in effect at the time material to this case clearly provides that
an employee who engages in harassment is subject to discipline up to and
including dismissal.; and
vi) It is apparent on the evidence that the investigation conducted in this
instance was not in conformity with the Complaint Procedure established
193
under the Harassment In The Workplace Policy. Both Ms. Hudson and
counsel for the Employer acknowledged that there were flaws in the
investigation process. I have previously commented on some of the
shortcomings at paragraph [307] of this Award.
[324] As stated in the authorities, harassment is an extremely serious offence which
justifiably attracts serious consequences, if proven. As observed by the Arbitrator in
Thames Valley District School Board, it is because of the seriousness of the
consequences that all of the history and circumstances surrounding the allegations must
be carefully examined to determine whether harassment occurred and, if so, the nature
and extent of the harassment. For the same reason, it is necessary to establish the
existence of harassment through clear, cogent and convincing evidence. It is also readily
apparent that cases involving harassment are fact specific in the sense they are ultimately
determined on the basis of their particular facts.
[325] After considering all of the evidence at length, I am satisfied that the grievor did, in
fact, harass Ms. Stevens. In my judgment, the harassment included the following: the
facebook and text messages the grievor forwarded to IIs. Stevens in early to mid 2011 in
which she threatened self harm; the grievor's continued efforts to communicate with Ms.
Stevens by email after the latter's very clear statement in her facebook message of
September 9, 2011 that she wanted no further contact with the grievor; the act and
circumstances surrounding the dropping off of a coffee for Ms. Stevens at the John Street
Home on September 30, 2011; the grievor's exchange with Mr. Stevens at the arena on
October 17, 2011; the grievor's facebook message to Ms. Stevens of the same date; the
194
grievor's email of October 19, 2011 In which she expressed anger at being defriended
from facebook; the drive-bys of Ms. Stevens' home in November, 2011; the grievor's
facebook comments and posting in that same month; the drive-bys of the Potters Road
Home in December, 2011; and the likelihood that, on some occasions in the November to
December, 2011 period, the grievor did intentionally drive by Ms. Stevens' work
locations or by Ms. Stevens when she was out in the cone nunity. It is important to note
that all of this occurred in the context of a relationship which had been deteriorating over
a considerable period of time. As mentioned above, I accept that the grievor engaged in a
course of vexatious comment or conduct that she knew, or ought reasonably have known,
to be unwelcome and in violation of the Policy relating to Harassment In The Workplace.
Her behavior was also inconsistent with the definition of harassment articulated in both
the revised policy of May 4, 2012 and the award in Re:_ Toronto Transit Commission
(Stipa Grievance).
[326] 1 note the following passage from the award in Aramark Canada Ltd.:
"51 I agree that one can't simply point to a Workplace
Violence or Sexual Harassment Policy and conclude that
conduct which violates either of those policies warrants
summary dismissal. Arbitrators must continue to look at
the context, and all of the surrounding circumstances,
including an assessment of the seriousness of the
violation of the policy, and consider all relevant
mitigating factors to ensure that the disciplinary response
to the violation is proportionate to the offense."
195
I accept that the above-described approach is applicable to the circumstances of the
instant case.
[327] l have not been persuaded the evidence establishes that the grievor continued to
harass Ms. Stevens after she went off work on sick leave in late January, 2012. 1 do not
consider the limited visual contact at the Special Olympics Basketball Tournament on
February 25, 2012 as constituting harassment. I note Ms. Hudson's evidence that post
April 17, 2012, the date of the Peace Bond, the grievor continued to drive by Ms.
Stevens' work locations and was in attendance at the arena. Apart from the alleged
contact of April 24, 2012, no evidence was presented of specific drive-bys or of other
forms of unwanted contact between the grievor and Ms. Stevens. I have previously
determined that the April 24th allegation has not been substantiated. Additionally, the
grievor was not expressly prohibited from going to the arena under the terms of the Peace
Bond. In any event, I consider it unlikely that she would have attended there after the
end of the 2011-2012 hockey season in late March or early April, 2012. I also consider it
material that the grievor was not spoken to by the Employer at the time about these
allegations of continued harassment. Simply stated, while harassment has been
established, it was not proven to be as extensive as claimed in the letter of termination.
[328] This is a case where the majority of the objectionable conduct occurred outside of
the workplace. My conclusions relating to the test set out in the Millhaven Fibres Ltd.
award for assessing this type of conduct are as follows;
196
i) There is little evidence that the grievor's conduct harmed, or could have
harmed, the Employer's reputation. The grievor previously had a good
reputation as a professional employee. I think that a reasonable and fair
minded member of the public, if apprised of all of the relevant facts,
would likely conclude that most of what occurred here was unrelated to
work and stemmed from the deterioration of a personal and intense
friendship between co-workers. I have real doubt as to whether such a
person would view the sanction of termination as the only disciplinary
option;
ii} I have not been persuaded that the grievor's behavior would render her
unfit to perform her duties at Community Living Tillsonburg. To the
contrary, I find that she would likely be able to perform the required
duties in an effective and professional manner, as before;
iii) Insufficient evidence was presented to establish that the grievor's
behavior would lead to the refusal, reluctance or inability of other
employees to work with her. I recognize that Ms. Pehrman felt
uncomfortable when she worked with the grievor from July, 2011 to
January, 2012. I was not told hove she would view having to work with
the grievor again should the latter be reinstated pursuant to this Award. I
further recognize that, given all of the circumstances, it might be prudent
for the Employer to continue the Safety Plan, in some form, for Ms.
Stevens for as long as it deems appropriate. The evidence appears to
suggest, however, that the grievor and Ms. Stevens have been able to deal
with each other in a reasonable and professional manner when together at
Union meetings. 1 am unable to reach any conclusions with respect to
Ms. Foden given that she did not testify in this case;
iv) There has been no finding of guilt for a serious breach of the Criminal
Code. That result was avoided by the grievor's agreement to enter a
Peace Bond. While I have determined that the grievor breached the
Employer's policy relating to harassment, such determination by itself
does not dictate she be dismissed. All of the surrounding circumstances
must be considered, as stated in Aramark Canada Ltd. In the final
analysis, I have not been persuaded that the grievor's conduct, most of
which was outside of work and occurred between former friends, would
be injurious to the general reputation of the Employer and its employees;
and
101
v) I have not been convinced that a penalty less than discharge would impair
the Employer's ability to efficiently manage its works and to direct its
working forces. I accept that the continuation of a Safety Plan for Ms.
Stevens could affect and impact the Employer's ability to schedule staff.
It is important to recognize, however, that the Employer was prepared to
accommodate and work with such a plan from late October, 2011 to the
point at which the grievor went off work on January 24, 2012.
[329] I do recogize that the grievor's behavior impacted the Employer and the workplace
in several respects, including the following:
i) It is apparent on the evidence that the grievor went to several of Ms.
Stevens' work locations while off duty. This includes visits to the
Tillson Street Home in April, 2011, the Potters Road Horne on August
20, 2011 and the John Street Lorne on September 30, 2011. As
mentioned, in my judgment these visits violated the Employer's Policy
relating to Visitors. They also clearly had the potential to adversely
impact the persons residing in the Homes;
ii) The grievor's behavior made it necessary for the Employer to implement
Safety Plans for both Ms. Stevens and Ms. Roden. As stated, these plans
would likely make it more difficult for the Employer to schedule
employees. Ms. Stevens' time away from work after the grievor's
termination would likely have compounded the problem;
iii.) Ms. Stevens' concern about staffing the Special Olympics Basketball
Tournament compelled the Employer to have a Manager attend to
monitor the situation. I accept that this was not an everyday occurrence.
The Manager's attendance would not have been necessary but for Ms.
Stevens' concerns arising from the prior harassment. A similar
conclusion can be reached with respect to the Manager's attendance at
the Potters Road Dome on December 15, 2011; and
iv) Lastly, the issues arising from the grievor's relationship with Ms. Stevens
spilled over into the workplace, as evidenced by the Employer's need to
conduct two (2) meetings in June 2012 to address Ms. Moore's complaint
and Ms. Gomes conversation with Ms. Stevens.
198
[330] At this ]uncture, I note that the Employer seemed to contemplate the grievor's
return to work in three (3) documents issued in February, 2012, these being Ms. Stefan's
letter to the Treating Physician dated February 2'd; Safety Plan. #3 dated February 22�d;
and Ms. Hudson's letter to the grievor dated February 24, 2012. I further note that the
Employer did not impose any discipline on the grievor until the termination on May 7,
2012. More specifically, it did not discipline the grievor at any of the following times:
after the initial investigation of Ms. Stevens' complaint; after the developments in the
November to December, 2011 period; at the time of the charge; or during the period the
grievor was off on sick leave. The question which arises is why the Employer delayed its
disciplinary response if it considered the grievor's conduct to be unacceptable and
inconsistent with the: continuation of the employment relationship. This was not
addressed in the evidence, other than through Ms. Hudson's suggestion that the Employer
may have been guilty of giving the grievor too many chances. While not specifically
stated by Ms. Hudson, I think it likely that the Employer may have been influenced by
two (2) considerations: first, a desire to wait for the outcome of the criminal charge; and,
second, a reluctance to terminate an employee off work on sick leave.
[33 1] I accept that Dr. Wahby's notes were lacking in detail and did not provide much
information to the Employer about the grievor's medical condition, other than she was
unfit to return to work. I agree with the comm-ent in Providence Care -Mental Health
Services that notes of this nature may be the subject of some criticism at arbitration.
199
Clearly, it would have been helpful to all concerned if more detailed medical reports had
been provided during the period the grievor was off work. I consider it material,
however, that the Employer accepted Dr. Wahby's notes without questioning them at the
time of their submission. It did not thea ask the grievor for further medical information
or to undergo an independent medical examination to better establish her unfitness for
work. Additionally, the Employer did not request any explanation from the grievor
following her attendance at the Special Olympics Basketball Tournament in February and
at the hockey tournament in March, 2012. I think that the Employer should have
explored all of the above options, if it doubted the legitimacy of the grievor's illness and
time away from work. In the circumstances, I am not prepared to draw an adverse
inference against the Union for not calling Dir. Wahby as a witness. I accept the Union's
submissions on this point.
[332] I conclude from the evidence that Dr. Wahby must have determined that the
grievor could not return to work to perform either her regular job or modified duties.
Otherwise, I think he would likely have responded to Ms. Stefan's letter of February 2,
2012 in a more direct fashion by identifying what tasks the grievor could and could not
do at work. I also consider it significant that the grievor's condition was likely more
emotional and psychological, rather than physical in nature. In this regard, the comments
expressed in Providence Care -Mental Health Services and in T'elus Corp. ( urii
Grievance) are likely applicable here. These awards reference the difficulties inherent
2.00
when assessing a person's capacity to work if the problems are mental health related. I
do recognize, though, that the Employer here did not know the reason why the grievor
was being kept off work.
[333] 1 do find that Dr. Wahby's post -termination medical report of May 13, 2012, which
was prepared for Manulife Financial, is relevant. The diagnosis set out therein is
consistent with the grievor's evidence as to her condition post charge and pre-
termination. The report gives more credence to Dr. Wahby's earlier decision to keep the
grievor off work from January 24`h to the time of her termination in May, 2012. It further
suggests that the grievor was not malingering in this period. Ultimately, I have not been
persuaded the Employer has established the grievor was engaged in an abuse of sick time.
[334] As mentioned previously, the Employer withdrew the allegation that the grievor
bullied and intimidated co-workers. I have now found, on the evidence, that it has not
proven the complaint relating to the abuse of sick time. It is apparent from a reading of
the letter of termination that both of the aforementioned grounds were relied on to
support the grievor's termination. As a consequence, the sole ground remaining to
support this disciplinary sanction is the grievor's harassment of IIs. Stevens. I have
determined above that such harassment did occur in fact. I am satisfied that, in all of the
circumstances, this misconduct would justify substantial discipline. The threshold issue
is whether, standing alone, it warrants the termination of the grievor's employment at
Community hiving Tillsonburg.
201
[335] 1 accept that a flawed investigatory process could result in the mitigation or
nullification of a disciplinary sanction depending on the degree of unfairness and harmful
effect resulting therefrom. My comments at paragraph [307] of this Award identify
certain shortcomings in the approach adopted by the Employer in this instance. It is
acknowledged that the Employer did not strictly follow the complaint procedure then in
place. 1, nevertheless, have not been satisfied that there was serious procedural
unfairness occasioned in this case. This conclusion is premised on the following.
i} As mentioned, I think that the grievor was likely aware of the general
nature of the allegations communicated to her by Ms. Hudson during
their telephone conversation on October 21 �t and their subsequent
meeting on October 24, 2011. The grievor had been a party to the
disintegrating relationship for a considerable period of time and had been
told of Ms. Stevens' concerns by Constable Lester on October 20, 2011;
I note Ms. Hudson's evidence that as matters progressed, she informed
the grievor of all of the allegations brought to her attention. I think that
from start to finish, the grievor had a reasonable opportunity to ask for
any needed clarification and to respond to Ms. Stevens' complaints. This
is particularly so given that events occurred over a lengthy period of
time. The initial complaint was made in mid-October 2011 and
termination was not resorted to until early May, 2012. To reiterate, there
was accordingly an ample opportunity for the grievor to contest the
allegations and to provide an alternate explanation;
iii) If the grievor felt that the complaint process was unfair, or that she was
not being provided with a fair opportunity to respond to the allegations,
she could have involved the Union and filed a grievance. No grievance
was filed in this case until after her termination;
iv} I have not been persuaded that a different result would have been
obtained but for the flaws in the complaint process. I consider it likely
that the Employer would still have scheduled in such a fashion as to
avoid the possibility of the grievor and Ms. Stevens working together at
202
the same location. I also note that discipline was not imposed at the time
of the initial investigation. It was unposed by the Employer some six (6)
months later. I am unable to find that the discipline ultimately imposed
was premised on, or resulted from, some flaw in the complaint process;
and
v) I consider it material that the grievor has had a. full opportunity to contest
Ms. Stevens' allegations during the course of this lengthy arbitration
proceeding. A considerable number of the allegations have been
substantiated.
[336] Before turning to the appropriate level of discipline and the remedy, if any, it is
necessary to reference the following aspects of the evidence:
i) The grievor, at the time of her termination, had approximately twenty
(20) years of seniority and a clear disciplinary record. She was
previously a good employee while at work with the individuals she
supported. Even Ms. Stevens attested to that fact;
ii) A considerable period of time has elapsed since the grievor's termination.
It appears that the interactions between the grievor and Ms. Stevens have
been respectful and professional when they have been together at Union
meetings;
iii) As mentioned, the grievor expressed some regret about what developed
with Ms. Stevens and stated that, looking back, she could perhaps
understand hove Ms. Stevens felt at the time. I do not think, however,
that the grievor ever fully agreed that she harassed Ms. Stevens. In many
respects, she expressed a limited and reluctant assumption of
responsibility. I note that in crass -examination, the grievor maintained
that she was victimized by both IVIS. Stevens and the Employer, and that
Ms. Stevens was also victimized by the Employer, but not by her. In this
regard, she suggested that the Employer, in conjunction with Ms.
Stevens, may have set her up by scheduling the latter to staff the Special
Olympics Basketball Tournament. The grievor also, at least initially,
maintained that the Employer had harassed her by having a Manager
accompany Ms. Roden to the grievor's home to return certain personal
belongings;
203
iv) I note that the grievor in her evidence expressed certain negative
comments about his. Stevens, Ms. Fehrrnan, Ms. Matthews and Ms.
Hudson and that there appeared to be two (2) camps of employees back
in 2012, just after the grievor's termination. Not a lot of evidence was
presented as to the potential negative effects which would flow from a
reinstatement of the grievor to her former position;
v) As stated above, I have not accepted the grievor's evidence with respect
to the following matters: her denial that the several communications to
Ids. Stevens were a threat of suicide; her continued denial that Ms.
Stevens was backing away from the friendship in the face of clear and
contrary evidence; her denial of any knowledge as to what she had to
acknowledge as a condition for entering into a Peace Pond; her
description as to the impact of termination on her ability to serve as a
Special Olympics volunteer and to look after her friend's foster children;
her explanation of the facebook message of September 9, 2011 from Ms.
Stevens; her explanation around the August 20, 2011 discussion at the
Potters Road Home; her explanation of the comments and posting on
social media in November, 2011; and her denial of the drive-bys on
Potters Road in December, 2011. Similarly, I have rejected FIs. Stevens'
claim that the grievor drove by the Potters Road Horne at least ten (10)
times on December 15, 2011; and
vi) It has been difficult to reach firm conclusions about the feelings, intent
and motivations of both the grievor and Ms. Stevens. At times, I formed
the impression that the grievor was evasive and self-serving in presenting
her evidence. She very likely was attempting to downplay her actions
and behavior to better her chances of having the termination set aside. It
is apparent that Ms. Stevens was caught up emotionally with respect to
what had happened to her. I sensed that she lost a certain degree of
perspective and became prone to exaggeration and over -reporting. This
case is also complicated by the fact that a large part of the
communications between these two (2) individuals occurred
electronically through email, facebook messages and text messages.
[337] I am satisfied, as stated, that the grievor's conduct towards Ms. Stevens justified a
substantial disciplinary response. Clearly, her harassment of IIs. Stevens, as described
above, had a profoundly negative effect on her former friend. Ultimately, however, I
204
have not been persuaded that the termination unposed can be sustained. As mentioned,
two (2) of the stated grounds have not been proven, as one (1) was withdrawn and the
other not established on the evidence. Additionally, while the misconduct complained of
impacted the workplace in certain respects, it primarily occurred outside of work and in
the context of a deteriorating friendship. In this regard, I reject the Employer's position
that the test set out in Millhaven Fibres Ltd., when applied to the facts of this case,
requires that the termination be upheld. In my judgment, after reviewing all of the
evidence and argument, termination was an excessive disciplinary response.
[33 S] Ordinarily, the above finding would automatically result in reinstatement. The
Employer has argued, however, that damages should be awarded in lieu of reinstatement.
In addressing this submission, I have considered the following questions: is the
extraordinary remedial request necessary in the interests of harmonious labour relations?;
has the employment relationship been so damaged that it would be untenable to reinstate
the grievor?; has the element of trust required for a sound employer-employee
relationship been completely lost given what has occurred in this case?; and is there a
reasonable expectation that a viable employment relationship can be reestablished?
After considering these questions at some length, I conclude that this is not a case where
damages in lieu of reinstatement should be awarded.
[339] I do have reservations and concerns arising from the evidence set out above in sub-
paragraphs iii), iv) and v) of paragraph [336]. Upon reflection, I think it likely that the
205
grievor, at the material time, was virtually blind to the consequences and effect of her
obsessive and persistent behavior towards Ms. Stevens, to the point that she did not view
it as harassment. If this was the case she was mistaken for, as stated, her contact and
communication with Ms. Stevens ultimately became unwelcomed and was captured by
the Harassment In The Workplace Policy. This lengthy proceeding and the content of
this Award should make it abundantly clear to the grievor that personal harassment of a
coworker, either inside or outside of the workplace, cannot be tolerated. I am further
troubled by the impact the grievor's reinstatement might have on both the organization as
a whole and on other staff in particular. As previously noted, staff became somewhat
divided in 2012 following the grievor's termination. There is insufficient evidence,
however, to accurately assess how the workplace might be impacted by a reinstatement
some four (4) plus years after the termination. Speculation about possible impact cannot
serve as the foundation for an award of damages in lieu. In the final analysis, I conclude
that the grievor should be reinstated and be given the opportunity to regain the
Employer's trust and to develop an effective employment relationship. I do not view the
relationship to be irreparable.
[340] Given all of the findings in this case, I think it would be wrong to simply reinstate
the grievor without any compensation. I conclude that her entitlement to same must be
reduced to reflect the seriousness of her conduct over a somewhat lengthy period of time
and the significant impact it had on Ms. Stevens: After due consideration, I think it
r.,
appropriate to limit the grievor's entitlement to a financial remedy to the two (2) year
period immediately prior to the date of this Award. Any amounts earned elsewhere
during this period are to be set off from such entitlement, in accordance with the duty to
mitigate. For the purposes of the grievor's disciplinary record, a suspension of six (6)
months is substituted for the termination.
[341.] It is my expectation that with the passage of time, and having experienced this
lengthy arbitration, the grievor now recognizes and understands that she cannot resume
the type of conduct which led to her discharge. I trust that she now appreciates that
boundaries and limits exist in terms of what is considered to be appropriate and permitted
interaction between co-workers. In the event there is any repetition of the type of
behavior which fonned the subject matter of this case, the grievor should be aware that
her continued employment will be in very serious jeopardy.
[342] I wish to note my appreciation for the professional, respectful and effective manner
both counsel displayed in presenting their respective cases.
[343] For all of the above reasons, the grievance is allowed in part. 1 remain seized to
deal with any issues arising from the implementation of this Award.
Dated at Amherstburg, Ontario this IbA• day of �u, 2016.
liva� r�i�