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HomeMy WebLinkAbout1996-2568SIMON98_09_18 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE C.OMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (41tJ) 32tJ-13~ GSB # 2568/96 OPSEU 9ID275, 97D276 . IN THE MATTER OF AN ARBITRA nON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc Service Employees Umon (Anthony SImon) Grievor - and - The Crown In Right of Ontano (Mimstry of the SohcItor General and CorrectIOnal ServIces) Employer BEFORE N Dissanayake Vice-Chair FOR THE AlIck Ryder, Q C GRIEVOR Counsel Ryder Wnght BlaIr & Doyle Bamsters & SohcItors FOR THE Laura Wilhams EMPLOYER Staff RelatIOns Officer Mimstry of the SohcItor General and CorrectIOnal ServIces HEARING February 2, 1998 June 24, 1998 June 29, 1998 2 DECISION The Board is seized with two grievances dated October 26, 1996 filed by Mr Anthony Simon, a Correctional Officer at the Toronto Don Jail The grievances allege that the employer had contravened article . 3 1 of the collective agreement and the employers's WDHP policy by permitting racist graffiti within the jail premises The parties did not treat the two grievances separately Instead, the focus was on the issue whether there had been a breach of article 3 1 The grievor is of African descent He has been active in trade union affairs as well as anti-racism issues He has held a number of offices in the local union executive including the office of Vice- President While he had worked for the Ministry of Correctional Services previously, from April 1987 he has been working at the Toronto Don Jail as a Correctional Officer 2 Based on the evidence adduced, the Board finds the following facts which are material to the determination of these grievances On or about October 7, 1996 the grievor was at work when he observed "KKK" scratched into the wall at two locations, namely by the side of the female elevator at the basement level opposite the Admission and Discharge area, and by the side of the same elevator on the 5th floor close to the Health Care unit The evidence indicates that while inmates had access to these areas, they were under supervision while in these locations On that basis, the Board is satisfied that the "KKK" signs were placed by a member of staff, or if it was placed by an inmate 3 it would have been done with the knowledge of a member of staff There is no dispute that the "KKK" sign stands for the "Klu Klux Klan", a racist organization which espouses hatred and violence against blacks, among other minority groups . The grievor testified that he immediately reported his observation to Mr Alex Sills, General Duty Manager, and that on the instructions of Mr sills he wrote an Occurrence Report addressed to the Superintendent and also took some Polaroid photographs of the "KKK" signs Mr sills was not called to testify Nevertheless, the Board is convinced that the grievor is confusing a later interaction he had with Mr Sills with the October 7th incident His testimony in this regard is inconsistent with the documentation he prepared at the time and none of the management witnesses had seen an Occurrence Report by the grievor relating to this incident The Board finds that on the day the signs were observed the grievor did not speak to any member of management Nor did he submit an Occurrence Report On the other hand, the uncontradicted evidence is that the next day, which was his day off, the grievor called Mr Steve Renzini, Deputy Superintendent Operations at the jail He advised Mr Renzini that he had observed "KKK" signs scratched on to the wall at the jail and reminded him that the employer had a legal obligation to take action He testified that he suggested to Mr Renzini that an immediate way to show that the employer was attempting to address this illegality would be to issue a strong memorandum to all staff stating that the activity was illegal and that it will not be tolerated He told Mr Renzini that 4 such a memorandum will be effective because it would show that the Ministry was reacting seriously and immediately, and would send a clear message that the activity would not be tolerated According to the grievor, Mr Renzini agreed that the actions of whoever placed those signs were unacceptable and that if the perpetrator was caught he should . be fired He told the grievor that he had a lot on his plate at the time because he had just started his job, but told the grievor to leave the matter with him and that he would act on it and get back to him The grievor ended the conversation stating that he had called because he wanted to ensure that the situation would be addressed by the employer However, as of the 17ili of October 1996, the grievor observed that the "KKK" signs still remained at the two locations Other co-workers also talked to the grievor about seeing the signs And the grievor had heard nothing from Mr Renzini or any other member of management Therefore, that day the grievor approached the Acting Superintendent, Ms Connie Mahaffy, as she came into work They stood in the lobby and talked for about 5 minutes The grievor told her that it was intolerable that "KKK" signs can be placed on the walls of the elevator and other places within the institution with apparent impunity He advised her that he had already raised the matter with Deputy Superintendent Renzini but no action had been taken He told her that merely painting over the signs was only a band-aid solution to a serious and explosive issue He suggested that as a start all General Duty Managers should be instructed to read a memorandum during muster, in which she condemned the illegal activity and made it clear that such 5 activity will not be tolerated Ms Mahaffy responded to the effect that people already knew that it was illegal to put up racist signs in the workplace and that another memorandum from her would not make any difference . The evidence indicates that on October 17~, soon after the grievor spoke to Ms Mahaffy, Ms Mahaffy attended her regular morning meeting with the managers During the course of the meeting she mentioned to the group that the grievor had made an allegation that "KKK" signs can be placed in the jail with impunity and inquired if anyone had recently observed any "KKK" signs No one indicated having seen such signs After the meeting ended, Mr Renzini told her that the grievor had previously raised the allegation with him and that he had completely forgotten about it and had failed to follow up She told Mr Renzini to the effect that he cannot forget about concerns such as racial or sexual harassment, that they were serious issues The grievor testified that he was very concerned about Ms Mahaffy's response On October 21, 1996 he wrote the following letter to Ms Mahaffy This letter constitutes a verification of our discussion which took place on Thursday October 17, 1996 in front of the control room During our discussion I emphasized that it was intolerable that "KKK" signs can be placed on the walls of the elevator and other places in the institution with apparent impunity I also suggested a simple method of initial attendance to this illegal and vile expression of race hatred simply painting over the signs when observed is applying a band-aid solution to a serious and explosive issue 6 My suggestion was that all GDM's, on all "line ups", be made to state that this sort of behaviour is not acceptable and will not be tolerated in our institution What this would do is signal to all the seriousness of our management to quickly and effectively eradicate this type of behaviour and method of expression Additionally it would send a sound, unmistakably pre-emptive message to those who know of the perpetrator to come forward with this knowledge while-signalling to the perpetrator that it is time to refrain from his/her activities Your statement that another memo addressing this type of behaviour would not be effective was well taken but indicated that my suggestion was misunderstood; I did not suggest another memo but that all GDM's express their strict adherence to the principles laid down by the ministry in its human rights policy statement To do less would indicate apoplectic insouciance bordering on tacit acceptance I must state that this sort of expression raises, among other sentiments, fear and discomfort while creating a poisoned workplace for those of us who espouse the correctness of the stated ministry policy Having spoken to the deputy superintendent, Mr S Renzini, one week earlier (Thursday, October 10, 1996) about this problem and finding no movement toward addressing it I decided to discuss it with you As an anti-racist educator and a person of African descent working at the Toronto Jail I must carry out my responsibility to bring this to your attention with a view to a speedy resolution On October 23, 1996 Ms Mahaffy replied to the grievor's letter as follows I am in receipt of your October 21, 1996 letter in which you state "KKK signs can be placed on the walls of the elevator and other places in the institution with apparent impunity" Notwithstanding the absence of such evidence at this time, I am advising Mr D Turner, Deputy Superintendent Programmes and Anti-Racism Coordinator, Toronto Jail by copy of this letter, to investigate your allegation 7 As indicated to you in our recent discussion, timely and decisive action will continue to be taken in response to any racist behaviour that occurs at the Toronto Jail On October 26, 1996 the grievor responded by filing his grievances and writing tne following letter to Ms Mahaffy I have today received and am responding to your memo dated October 23, 1996 because it displayed a clear misunderstanding of the issues which I brought to your attention on October 17, 1996 The statement which you quoted in your letter alludes that the focal point of my discussion was that these signs "are being placed on walls in the institution with impunity"; it was not my focus during our discussion What I pointed out was that having voiced my concern about the KKK signs on the walls to your deputy superintendent, Mr Renzini, and provided him with an initial course of remedial action which was reasonable by any standard, he failed to act on my concern There is a policy statement on the walls of this institution which obliges you and any other member of this institution to uphold the principles of human rights as laid out in Ontario and International laws, statutes and treaties Managers, by reason of their position and authority, have an added responsibility I am simply requesting that you uphold these principles by following the directives and guidelines which are in place to enforce them Mr Renzini along with several correctional officers has confirmed seeing the signs Additionally several reports have been submitted by officers in this institution expressing concern about this very issue This is proof positive that these signs have been placed on the walls of this institution; hence it is not an allegation' Placing KKK signs on the walls of the institution is a racist act Reports have been submitted by officers in the institution and these signs continue to appear This provides prima facie evidence that timely and decisive action has not been taken This then is tacit approval of such acts and behaviour 8 It takes about fifteen seconds for anyone of your managers to address this matter on a line up/parade by stating "Ladies and gentlemen recently "KKK" signs have been placed on the walls in this institution, this practice is illegal and will not be tolerated in this institution" As an anti-racist educator, I will be happy to assist in any and all investigation(s) by providing my expertise with a view to eradicating this type of behaviour Mr Turner did not testify The grievor testified that sometime after he grieved Mr Turner met with him In response to questions posed by Mr Turner, the grievor told him that he had first seen "KKK" signs at the Don Jail in 1987, that they resurface from time to time However, he emphasized that his letter to Ms Mahaffy was prompted by management's failure to take action when he had brought to management's attention the fact that currently such signs were present He took Mr Turner to the location at the basement elevator and showed him the "KKK" sign there He wanted to show Mr Turner the sign on the 5th floor also, but Mr Turner stated that it was unnecessary The grievor testified that when he went on Christmas holidays in the third week of December 1996, the two "KKK" signs he had first observed in October 1996 still remained However, when he returned to work on or about December 28, 1996, the signs had been painted over He also observed the following memorandum addressed to all employees from Mr Kevin Cowie (who by then had replaced Ms Mahaffy as superintendent) posted on the bulletin board near the employee lunch room 9 SUBJECT RACIST GRAFFITI On three recent occasions racist graffiti has been scratched into the walls in the vicinity of the elevators This conduct is extremely offensive and will not be tolerated by the management or staff of the Toronto Jail . In addition to being extremely offensive, such actions are also a violation of the Ontario Human Rights Code and The Workplace Discrimination and Harassment Prevention Directive Any individual who has been proven to have committed such offensive action will face disciplinary action up to and including dismissal It is the responsibility of all employees to ensure this workplace remains free of all forms of racial intolerance, harassment, prejudice or discrimination TO BE READ AT MUSTER FOR 10 DAYS EFFECTIVE DECEMBER 27, 1996 AT 1900 HOURS THROUGH JANUARY 6, 1997 AT 1900 HOURS The grievor testified that he believed that whereas the foregoing memorandum was to be read at muster for 10 days, it was read only 4 or 5 times However, it was apparent that he had no personal knowledge as to how many times it was read What he was able to testify was that on or about January 4, 1997 he attended a muster at which the memorandum was not read He pointed out to the General Duty Manager, Mr Jeffers that he had failed to read out the memorandum as he was supposed to Mr Jeffers explained that it was a genuine "slip up" , that he had forgotten Later during that shift, Mr Jeffers informed the grievor that he had rectified his error by calling each officer at his/her post 10 and reminding of the contents of the memorandum This evidence of the grievor was uncontradicted Evidence was adduced about a further incident where 2 or 3 weeks after the grievances were filed, the grievor observed another "KKK" . sign, written with a black marker It was erased immediately by Acting General Duty Manager Mr David Mitchell Then in late December 1996 or early January 1997 another "KKK" sign appeared The union concedes that when this came to the attention of Superintendent Cowie, he responded appropriately Then on April 23, 1997, while on his shift, the grievor observed a "KKK sign once again on the wall near the female elevator on the 5th floor, the same place as in October 1996 The grievor testified that upon seeing this he felt sick and light-headed He informed the General Duty Manager, Mr Sills, that he did not feel well and was sent to the Health Care unit A nurse checked his blood pressure and stated that he should see a doctor immediately He booked off and went to st Michael's Hospital There he was told that his blood pressure was very high He was asked to see his own doctor Next day he was seen by his family physician Dr McNeilly, who prescribed medication to lower his blood pressure, ordered him to remain off work, and referred him to a specialist, Dr G Cooper, at the Humber River Hospital From April 23, 1997, the grievor remained off work until December 24, 1997 His application for workers compensation benefits was opposed by the Ministry and was disallowed by the Board However, he received STD benefits under the collective agreement for the period of absence 11 The essence of the two grievances is that the employer had breached article 3 of the collective agreement by failing to take reasonable steps to respond to the racial threats and slurs implicit in the "KKK" signs, when the problem came to its attention in October 1996 The . union submits that the grievor, as a person of African origin, felt personally insulted, humiliated and threatened by the existence of the "KKK" signs in the workplace He became personally involved in the issue and attempted to enlist the employer's assistance in discouraging such behaviour Due to lack of a forceful and swift response by the employer, the grievor was made to endure similar racist signs subsequently He fell ill as a result and suffered financial losses The union urged the Board to award the grievor compensation for his actual losses, as well as general damages for the pain and humiliation he had to endure as a result of the employer's breach The employer's position essentially was that in all of the circumstances, it met the obligation under article 3 1 Article 3 1 reads There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap, as defined in section 10(1) of the ontario Human Rights Code There was no dispute that the placing of "KKK" signs in the workplace constitutes racial harassment which is a form of discrimination prohibited by article 3 1 The only issue between the parties was about the nature and extent of the employer's obligation in - 12 that regard, and whether the employer met that obligation in the particular circumstances In the Board's view the displaying of signs or graffiti with racist implications or threats is a form of racial harassment of the . individuals belonging to the racial group in question The grievor, as a person of African descent, can therefore legitimately claim, as he does, that he was racially harassed by the existence of the "KKK" signs However, that does not necessarily mean that the employer had thereby contravened article 3 1 The Board has held that the employer is always liable for the discriminatory conduct of members of management [Re Howe et al, 3155/92 (Dissanayake) at p 57] While here the Board has concluded on a balance of probabilities that the "KKK" signs in question were placed by a member of staff, there is no evidence indicating that the perpetrator was a member of management In Re - McKinnon, 905 A/92 (Gray) , the Board addressed the nature of the employer's obligation under article 3 1 (then article A 1) in those circumstances One of the issues before us is whether the language of Article A makes the employer "strictly" or vicariously liable for the conduct of the individual who entered the entry in question in the OMS training region We are not persuaded that the Supreme Court's decision in Robichaud supports the union's position on this issue The Court was concerned there with an employer's liability for the conduct of a supervisory employee toward an employee over whom he exercised supervisory authority, under a statute which had remedial and other provisions which suggested that an employer's vicarious responsibility thereunder must be broader than its responsibility for the criminal or tortious conduct of supervisors While we accept that the person who made the entry in question here was most likely' an employee There is no evidence that that person was a supervisor 13 There are no remedial or other provisions in the collective agreement which suggest that the employer undertook broader vicarious responsibility for employee conduct under Article A than it bore under other provisions of the agreement We are not persuaded that a single discriminatory act by one employee toward another which the employer has neither authorized nor encouraged nor enabled by the conferral of supervisory authority amounts to a breach by the employer of Article A That does not mean that Article A imposes no responsibility on the employer with respect to discriminatory treatment of one of its employees by another Even though Article A does not address the matter as directly as the Code does, the employer does not dispute and in any event we are satisfied, for the reasons set out in si~~ and Dhillon, that the employer's obligation under Article A not to discriminate against employees includes an obligation to take reasonable steps to ensure that employees are free from discriminatory treatment by others in the workplace The employer argued, however, that Article A does not address reprisal conduct - that is, treatment of an employee in an adverse, unwelcome manner because he or she is pursuing or has pursued a grievance under Article A or a complaint under the Code It seems to us that the rights conferred on employees by Article A would be largely illusory if the employer were free to subject, or to stand idly by while other employees subject, a grievor or complainant to reprisal conduct The employer's obligation to take reasonable steps to ensure that employees are free from discriminatory treatment surely includes an obligation to take reasonable steps to ensure that employees are free from reprisal when they properly assert their right to be free from discriminatory treatment Obviously, the employer's obligation in that regard is not conditional on the affected employee's persuading either the employer or the appropriate tribunal that his or her complaint or grievance is or was meritorious (Emphasis added) In Re Chan, 1990/90 (Dissanayake) the Board, dealing with a case of racial harassment, also held that article A 1 (now 3 1) did not impose strict liability for discriminatory acts of its employees and at p 45 described the employer's obligation as follows 14 The Board agrees with the employer to the extent that under either article A 1 or article 18 1 there are no absolute guarantees on the part of the employer There is no strict liability on the employer, in that merely because an employee racially harassed or put another employee at a health or safety risk, the employer is to thereby exposed to liability The employer's liability depends on its knowledge of the offensive conduct and its response to it However, in considering the employer's knowledge the test is not purely subjective If the employer lacked knowledge because it showed a lack of interest or did not have a reasonable system for detecting and monitoring of offensive conduct, that does not exonerate it To hold otherwise would be to make the obligation imposed on the employer by the collective agreement provisions meaningless The employer would be able to circumvent that obligation by merely closing its eyes and ears The parties could not have intended that (Emphasis added) In Re Howe et al (supra) , the Board was dealing with an allegation that the grievor had been sexually harassed contrary to the provisions of article 27 That article specifically prohibits harassment based on gender The collective agreement contains no comparable separate provision prohibiting harassment based on race, colour etc Nevertheless there is no doubt, and this was not disputed, that harassment based on race, colour or any other ground specified in article 3 1 is prohibited by that article Therefore, some of the general principles set out by the Board and the courts with regard to sexual harassment are equally applicable to cases of racial harassment under article 3 1 In Re Howe et al (supra) at p 58, the Board stated The purpose of article 27 is remedial The goal is to provide women, a work environment free from hostility and ridicule based on gender Where the employer manages the workplace in a manner that encourages or permits behaviour that leads to such an environment, it is contrary to the sprit and intent of article 27 Such an environment, where comments and conduct that tend to ridicule or disparage a 15 protected group, even if not directed at specific individuals is often referred to as "a poisoned work environment" The definition of the term "Poisoned Work Environment" in the employer's own WDHP Guideline includes the following Harassment may also result from comments or conduct that tend to ridicule or disparage a protected group even if not directed at a specific employee This type of harassment, because of its harmful effects, is often referred to as a poisoned work environment and is prohibited under the directive A single remark or action could be in violation of the directive if it is serious enough to poison the environment for the person subjected to it Harassment can be practised by co-workers, by supervisors towards their employees or by employees towards supervisors For example racial minority, female, gay or lesbian managers may be subjected to harassment by those who report to them In Robichaud v The Queen, (1988) , 40 D L R ( 4th) 577 (S C C ) , La Forest J was considering the liability of an employer under the Canadian Human Rights Act for sexual harassment committed by its employees At p 582 La Forest J noted that human rights legislation, is not aimed at determining fault or punishing conduct It is remedial Its aim is to identify and eliminate discrimination If this is to be done, then the remedies must be effective, consistent with the "almost constitutional" nature of the rights protected At p 584, he continued his reasoning 16 Indeed, if the Act is concerned with the effects of discrimination rather than its causes (or motivations) , it must be admitted that only an employer can remedy undesirable effects; only an employer can provide the most important remedy - a healthy work environment with those principles in mind, I turn to the evidence before me . As the Board held in Re Chan (supra) , the obligation under article 3 1 is not one limited to reacting to complaints There is an on-going obligation on the employer to be vigilant It must have in place effective mechanisms to monitor and detect discriminatory conduct, and to investigate and remedy incidents of discrimination In the present case, the grievor brought to the attention of the Deputy Superintendent Operations, Mr Renzini, the presence of racist graffiti within the workplace Mr Renzini promised to take action and to get back to the grievor However, Mr Renzini did not act on it because he "forgot" After approximately 10 days the grievor had heard nothing No action had been taken The racist signs remained on the wall Therefore, he spoke to the Superintendent, Ms Mahaffy on October 17, 1996 While the discussion occurred in an informal way in the lobby of the institution, Ms Mahaffy must have known that the grievor was raising a very serious issue While the grievor could and perhaps should have acted more formally and stated his exact concern more clearly, in my view, that did not in any way relieve the employer from its responsibility to investigate the situation To say the least, the employer had a greater responsibility to eliminate discrimination in the workplace than the grievor did The employer had a responsibility to take the initiative to seek out the necessary information once the concern was raised by the ~ 17 grievor It was not reasonable for Ms Mahaffy to assume that the grievor was talking only of a historical event, merely because he did not specifically state that he had seen the "KKK" signs recently It must be remembered that a week earlier, the grievor had given all of the information relating to the "KKK" signs to the Deputy Superintendent Mr . Renzini Therefore, he was entitled to reasonably expect that Mr Renzini would have relayed that information to the Superintendent That was not done because Mr Renzini simply forgot about it Had he acted diligently, it is likely that Ms Mahaffy would have clearly understood the true nature of the grievor's concern In any event, the evidence is that the grievor complained to Ms Mahaffy that he had raised the issue with Mr Renzini and no action had been taken Surely, when an employee is seeking current action, at least a question must arise whether the problem is a current one The point is that Ms Mahaffy did not bother to ask the grievor when or where he had seen the offensive signs Nor did she ask him to make a formal report with all of the details Curiously, while Ms Mahaffy did not ask the grievor whether the "KKK" signs he was talking about were currently existent, she made that very inquiry from the management group when she met the group right after her discussion with the grievor That strongly suggests that the discussion she had with the grievor did raise in her mind the possibility of current racist signs Ms Mahaffy testified that no one in the management group indicated having seen any current racist signs Based solely on that, she concluded that there was no evidence at the time to support the grievor's allegation She did so without ever asking the grievor for more information 18 The employer made much of the fact that despite her conclusion that there was no evidence to support the grievor's allegation, Ms Mahaffy proceeded to appoint Mr Turner to investigate Certainly, investigating the allegation was a positive step However, while appointing Mr Turner to investigate, she conveys that she had already . concluded that there was an absence of evidence at the time to support the grievor's allegation This is strange because usually the purpose of an investigation is to find out whether there was evidence to support an allegation There is no indication that the "investigation" by Mr Turner had any purpose or result I find it unbelievable that the only document the employer could produce with regard to this investigation into a serious allegation of racism was the undated hand-written notes of Mr Turner taken during his interview of the grievor In his letter of October 26, 1996, the grievor refers to several reports submitted by other officers relating to racist signs and about other officers confirming that they had seen such signs There is no indication that any of this information was pursued as part of the investigation In fact, there is no indication that Mr Turner spoke to anyone other than the grievor There was no investigation file, and no report was ever issued at the conclusion of the investigation There were no findings and no recommendations It was obvious during Ms Mahaffy's testimony that she had no idea as to what was done during the investigation nor what the result was She admitted that the only document she had ever seen relating to the investigation was Mr Turner's notes of the interview with the grievor Since Mr Turner did not testify, the only thing the Board knows is that Mr Turner interviewed the grievor ",....-- 19 Another indication of the employer's lack of action is the evidence that the racist signs remained at the two locations at least until the grievor went on Christmas holidays, a period of over two months While the employer suggested that the signs were painted over as soon as they were pointed out by the grievor to Mr Turner, there was no employer witness who had personal knowledge of when they were painted over They could only testify about what was expected Nor was there any documentation such as a work-order from the Maintenance Dept which had the responsibility for removing the offensive signs In the circumstances, the Board must accept the grievor's direct testimony that he personally observed that the signs were still there when he went on holidays shortly before Christmas In other words, the two racist signs remained for all to see for a period of over two months The Board does not doubt for a minute that Ms Mahaffy personally abhors racism in the workplace However, personal good faith and motivation is not sufficient for compliance with article 3 1 As the S C C held in Robichaud, (supra) human rights legislation is concerned not with motivations but the effects of discrimination As the court pointed out, that being so "only an employer can remedy undesirable effects; only an employer can provide the most important remedy - a healthy work environment " If the employer is to fulfill its obligation it must back up its good intentions with actions which are objectively reasonable It is not enough to hope for a discrimination free work environment, but do nothing to achieve it In the present case the Board concludes that the employer failed to act reasonably to respond to the concerns raised by the grievor in October 1996 The root of the 20 problem, it appears to the Board, was that Ms Mahaffy appeared to be of the view that if racism was present at the jail, there was nothing the employer could do about it Thus during her testimony she admitted that when the grievor suggested that a memorandum be read at muster, she responded that another memorandum from her will not make any . difference She testified that she responded that way because she knew that all employees were already aware that Human Rights Legislation, the collective agreement and the WDHP policy prohibited the placing of "KKK" signs in the workplace Ms Mahaffy was not obliged to implement every suggestion the grievor made However, if she felt that his suggestions would not be effective, she should have taken some alternate steps There is no evidence that a memorandum, by Ms Mahaffy or any previous superintendent, speaking out against racist signs had ever been previously issued or read at muster But even if it had been previously tried without success, the employer must seek out other means to combat racism, even though there is no guarantee of success An employer cannot throw up its hands and say "there is nothing we can do", which is to say to minority groups that they must learn to live with racism That simply is not acceptable That is not consistent with the obligation under article 3 1 Ms Mahaffy repeatedly acknowledged during her testimony that the appearance of "KKK" signs in the workplace is a very serious problem which cannot be and would not be tolerated The Board does not doubt that that was her sincere belief But the problem is that the manner ~ 21 in which the employer representatives responded is not consistent with that When the matter was raised, Ms Mahaffy was very quick to jump to the conclusion that the grievor's allegations were not supported by evidence She did so without undertaking even a minimal inquiry She failed to do the obvious - ask the person raising the concern for more . information Ask the grievor what he was talking about It almost gives the impression that, rather than enlisting the grievor's assistance to fight a common enemy, she immediately took a defensive and adversarial stance Mr Renzini, another senior member of management, obviously did not treat the grievor's expression of concern with any degree of seriousness because he "forgot' to act on it Ms Mahaffy did not treat Mr Renzini's omission with much seriousness either Her only response was to informally tell him that he "cannot forget issues like racism or sexual harassment" To the extent that the employer took any action, it was done in a haphazard and half-hearted manner An investigation was ordered but there is no documentation as to what that investigation consisted of or what the outcome was No one, including the Superintendent who ordered the investigation, appears to have any idea about that Similarly, albeit belatedly, a direction was given that a memorandum be read at muster for 10 days denouncing racism and setting out the consequences of such misconduct Yet no one appeared to know if and how many times the memorandum was read out at muster There is no record of that and no one followed it up to ensure implementation The uncontradicted and direct evidence we do have is that on one occasion the General Duty Manager forgot to read the memorandum as he was supposed to It is very 22 likely that that omission would have gone unnoticed, had the grievor not been vigilant In the Board's view, the inadequacy of the employer's response is demonstrated by the shocking absence of documentation, particularly with . regard to the "investigation" There is no evidence that Mr Turner was given any written terms of reference with regard to the scope of the investigation There is no investigation file, no findings, report or recommendations Similarly, there is no documentation or follow up as to the carrying out of the muster readings The emphasis the Board places on documentation is not a mere technicality or formality Firstly, proper documentation is an indication that the matter was treated seriously Secondly, and more importantly, documentation serves a very necessary practical purpose Superintendents and other members of management are likely to change from time to time at the jail Unless incidents of racism (and other kinds of discrimination) and remedial action instituted are documented, a new manager would not be able to understand the real nature of the problem For example, in the absence of documentation of past incidents of racism, a new manager may treat an act of racism as an isolated incident and not treat it very seriously Similarly, unless remedial action implemented is documented, a future manager will be at a distinct disadvantage in deciding what action mayor may not be effective The Board is not of the opinion that Ms Mahaffy or any other member of management intended to condone or encourage the placing of racist signs However, as the Supreme Court of Canada stated in 23 Robichaud (supra) the issue is not one of intention or motivation It is one of effect or consequences When the employer fails to act quickly and forcefully to incidents of racism, the consequence is that the perpetrators perceive that the employer condones such conduct or at least that such conduct is not taken very seriously Such a perception . is likely to provide encouragement to the perpetrators to continue the offensive activity On the basis of all of the evidence, the Board finds that the employer failed to comply with article 3 1 in that it failed to take reasonable action when the grievor raised the issue in October 1996 The Board declares that article 3 1 was thereby contravened The grievor testified about the mental anguish he had to endure due to the existence of the racist signs in the workplace and due to the apparent lack of interest on the part of his supervisors As an anti- racism activist, he felt personally affronted, humiliated and threatened He perceived the employer's lack of action to be tantamount to condonation or encouragement of the offensive conduct He testified in detail about the impact upon his health, when "KKK" signs re-appeared in April 1997 He testified that the jail's Health Care nurse as well as st Michael's Hospital diagnosed him to suffer from a very high level of blood pressure He provided the names of the family physician and the specialist who treated him He was off work and was paid STD benefits Therefore, presumably the employer and the insurer had accepted that he was ill The evidence is that the illness commenced on April 23, 1997, the day he observed that " KKK' signs had reappeared v-~ 24 Apart from the grievor's own evidence, an Assessment Report dated August 1, 1997 prepared by the Specialist Dr J Cooper was filed in evidence In that report Dr Cooper concludes that the grievor was under "considerable stress" Then he goes on to state The stress has become so great that there is a spill-over to his domestic situation and this is also causing him some difficulties Therefore, there is a combination of social, domestic stresses and the stresses he is experiencing vocationally, at this time have accumulated to the extent that he requires some time off in order to cope and deal with these conflicts Counsel for the employer in her final submissions, took the position that the grievor should not be awarded any compensation for loss of earnings or general damages because there was no evidence indicating a causal connection between his illness and the existence of the racist signs in the workplace Counsel submitted that no weight should be given to Dr Cooper's report because the doctor was not produced for cross-examination She submitted that in any event the report does not state that the grievor's stress was caused by the situation at the workplace In my view, the employer is not entitled, during final submissions, to take the position that the Board should disregard the medical report, when it allowed the report to be adduced into evidence without objection and without requesting that the doctor be produced for cross- examination If an objection had been made, the union would have had to decide whether to call the doctor If it did not undertake to do so, the Board would have been called upon to rule upon the matter It is 25 grossly prejudicial and unfair that the employer allowed the document to go in routinely only to argue after the fact that it be disregarded It is true that the report in question does not clearly state that the grievor's stress was caused by the "KKK" signs Indeed, it does not . even mention "KKK" signs or even racism at the workplace However, as the Board reads it, what the doctor states is that the stress which was caused by the workplace "spilled over" to the grievor's domestic and social life Even if the grievor had unrelated domestic and social stressors, there is no evidence that he required medical treatment until he experienced the events of April 23, 1997 When seen in light of the timing of the grievor's illness and the situation he faced at the workplace, the reasonable conclusion is that the workplace situation was the immediate cause or trigger for the grievor's illness That cause, according to the grievor, had more to do with the employer's failure to act on his concerns, than the existence of the racist signs itself Based on all of the evidence, the Board has no difficulty concluding that the employer's failure to act in compliance with article 3 1 was the immediate cause of the grievor's illness Quite apart from the medical report by Dr Cooper, there is no reason not to accept the grievor's own assertion that he suffered mentally and emotionally when the employer failed to act with regard to racist activity, which directly and personally affected him not only as a person of African descent but one who was very concerned and active with regard to anti-racism issues The Board does not require scientific expert evidence as a condition for making such a finding 26 Based upon the evidence, the Board finds that the grievor's collective agreement rights were violated and as a result he suffered pecuniary and emotional losses In the circumstances the Board has the authority, and indeed the duty, to provide redress as best as it can be . done Accordingly the Board orders (1) That the grievor be compensated for all loss of earnings during his period of absence between April 24, 1997 and December 24, 1997, together with interest (2 ) That the grievor be paid the sum of $ 1,000 00 by way of damages for the mental and emotional suffering he had to endure as a result of the employer's breach The Board remains seized in the event the parties have difficulty agreeing as to the proper implementation of the Board's orders Dated this 18th day of September, 1998 at Hamilton, ontario ~e7~ Nimal V Dissanayake Vice Chairperson