HomeMy WebLinkAbout2011-0957.Grievor.17-08-04 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396
Commission de règlement des griefs
des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396
GSB#2011-0957; 2011-3211; 2011-3212; 2012-3211; 2012-3212; 2012-3213; 2012-3214; 2012-3215; 2012-3216; 2012-3217; 2012-3218 Union#2011-0368-0071; 2011-0368-0226; 2011-0368-0227; 2012-0368-0173; 2012-0368-0174; 2012-0368-0175; 2012-0368-0176; 2012-0368-0177; 2012-0368-0178; 2012-0368-0179; 2012-0368-0180
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Mary Lou Tims Arbitrator
FOR THE UNION John Brewin Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER George Parris Treasury Board Secretariat
Legal Services Branch Counsel
HEARING CONFERENCE CALLS SUBMISSIONS:
November 5, 2013; May 1, June 11, June 12, December 1, 2014; February 20, September 22, September 29, November 30, December 4; 2015; February 29, March 9, March 10, September 23, November 3, 2016; January 12, February 2, 2017 June 9, 2014; September 28, 2015; June 27, 2017 February 9, March 3, March 24, June 26, 2017
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DECISION
[1] The grievor is a Corrections Officer, employed by the Ministry of Community
Safety and Correctional Services since 1986. Since March 2003, he has worked at
Central East Correctional Centre (“CECC”), and prior to that, he worked at Millbrook
Correctional Centre. He filed fifteen grievances that were referred to arbitration.
[2] In post-hearing submissions, the Union requested that the grievor’s name be
anonymized in this decision. That request was not opposed, and the grievor will
therefore be referred to herein as “H.” The parties also agreed at the commencement of
the hearing that a former co-worker of the grievor would be identified in this decision as
“M.” In addition, I will anonymize the names of certain other individuals referenced in
these proceedings where it is appropriate to do so.
THE INTERIM DECISION – THE 2009 AND 2010 GRIEVANCES
[3] Prior to the commencement of these proceedings, the Union delivered detailed
particulars to the Employer. The Employer raised a preliminary objection at that time
that the particulars relating to four of the grievances (Grievance #2009-1268 dated July
7, 2009 and Grievance #’s 2010-1518, 1519 and 1520 each dated July 16, 2010,
referred to herein as the “2009 and 2010 grievances”) disclosed no prima facie violation
of the parties’ collective agreement. After considering the submissions of Counsel, the
Employer’s motion was upheld, and by decision dated June 25, 2014 (“the interim
decision”), the 2009 and 2010 grievances were dismissed.
[4] While the interim decision stands and speaks for itself, given the evidence and
argument that followed in these proceedings, it is appropriate to note what was in issue
and what was decided at that time.
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[5] The Union’s particulars pertaining to the July 2009 grievance assert that a
colleague advised the grievor that he (i.e. the colleague) got “into trouble” with M on
February 23, 2009 because he interacted with the grievor. Union Counsel stated that
the grievor “experienced” this as “continued sexual harassment” by M and that this
formed the basis of a WDHP (Workplace Discrimination and Harassment Prevention)
complaint that he filed against M. The Union indicated that the July 2009 grievance
addresses the Employer’s alleged failure to deal with such complaint.
[6] The three July 2010 grievances allege that the Employer “failed their (sic) duty of
care,” “facilitated, condoned and promoted sexual harassment against the grievor,” was
“intentionally blind and dismissive to ongoing/repeated harassment,” “engaged in
subversive reprisal damaging the grievor,” acted with “depraved rights under colour of
sovereign authority,” (sic) poisoned the grievor’s work environment, and ignored its
obligations and responsibilities under its policies. The Union’s particulars assert that on
June 1, 2010, M “reacted towards the Grievor’s presence in the general area of her
office during the performance of his duties in a way that continued her negative
behaviour towards him,” and that such behaviour “included elements of sexual
harassment.”
[7] The Union’s position was that the alleged February 2009 and June 2010
incidents included “elements of sexual harassment” to which the Employer was obliged
to respond.
[8] After considering the submissions of both Counsel, I accepted the Employer’s
position that even when the Union’s particulars regarding the alleged February 2009
and June 2010 incidents were viewed in their entirety and accepted as true, they did not
demonstrate prima facie sexual harassment.
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[9] The Union argued as well, however, that the alleged 2009 and 2010 incidents
should not be viewed in isolation, but in the historical context in which they arose.
Specifically, the Union suggested that those alleged incidents should be considered in
light of a November 2006 grievance filed by the grievor (“the 2006 grievance), the facts
giving rise to that grievance and the Board’s decision therein (“the 2008 decision”)
(OPSEU (H) and Ontario (Ministry of Community Safety and Correctional Services),
GSB # 2006-2323, July 16, 2008 (Briggs)). In the Union’s submission, the alleged
events, at least when considered in that context, demonstrate “continued sexual
harassment and a failure of the Employer to respond as required.”
[10] The Union referred to its particulars which assert certain factual background:
A series of grievances are before the Board. Most are related to a long history in which the Grievor was subjected to persistent assaults on his personal reputation by a number of co-workers and others including some individual members of the management group. The Ministry willfully or negligently failed to deal with the harassment and defamation to which he
was subjected and wrongfully denied him access to information which would have permitted the Grievor to take the various steps he had available to him to protect himself. The story at the heart of the grievances began in 1998. A co-worker at
Millbrook . . . repeatedly made false statements about the Grievor alleging among other things that he was stalking a female Correctional Officer…. The allegations were not true. They hurt and defamed the Grievor. For a number of years the Grievor was unable to get proof of who made
the statements. . . . While at Millbrook the Grievor came to be on friendly terms with M. . . .
[S]he turned on him and with other employees . . . began circulating . . . statements that brought the Grievor’s reputation into disrepute. When he tried to obtain information about these . . . statements, he was thwarted by management.
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[11] Counsel stipulated that a 2005 investigation of a WDHP complaint filed by M
against the grievor (IIU-944-07-05) was “an aspect” of the grievor’s 2006 grievance
before the Board in 2008.
[12] While the 2005 investigation report was not before me at the time that the
Employer’s motion was argued, it was later entered in evidence with the agreement of
Counsel that it is not before me as proof of the facts set out therein. The investigator
recorded in the 2005 report that in or around 2003 “rumours circulated that H had
‘stalked’ a female co-worker before he met M,” and that the grievor came to understand
that M later “told others that she thought he was engaging in similar behaviour with her.”
The investigator also stated that the grievor and M advised that they had not been in
contact with each other since July 12, 2005, and that the grievor agreed as of the time
of the 2005 investigation “to a move to Pod 1. . . to maintain separation between them.”
[13] The investigator’s conclusions as set out in the 2005 report included the
following:
Both parties were asked about their preferences for resolution. They agreed . . . it would be best if they avoid interactions in the future. M and
H do not want to work in close proximity to each other. . . . There seemed to be little reason to move forward with a comprehensive investigation at this point in time, given . . . their preferred resolution and the aforementioned separation in work assignments. To do so would involve collecting evidence about alleged incidents going back several years. . . . .
H’s work assignment to Pod 1 should continue. He was agreeable to this action being taken.
[14] The grievor later gave evidence in these proceedings that what he gleaned from
the 2005 investigation report was that the investigator concluded that he “had done
nothing wrong,” and that M had sexually harassed him.
[15] Further, although the 2005 report described the grievor and M’s preferred
resolution at the time and referenced the grievor’s alleged agreement to move from one
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pod to another in the workplace, the grievor in his later testimony denied that he so
agreed. He expressed the view that such redeployment put him in a “bad light” and
“painted” him as “guilty.” The grievor was clear through his later testimony that he
contested that there was in fact any resolution of issues in 2005. He commented as
follows in 2011 WDHP submissions later entered in evidence:
H’s Employer has failed to take steps to address the harassment and false statements and allegations that H has been subjected to for a number of years. Investigation IIU-944-07-05 failed to address the harassment and false allegations H has been subjected to over the years. Many matters have been left unanswered. . . . The Employer has failed its duty of care
in the handling of the IIU-944-07-05 investigation. The Employer failed its duty of care following the investigation. [16] The grievor also described his frustration about what he characterized as his
inability to confront his “accusers” through the 2005 investigation. He testified that he
had, as of 2005, been “chasing false statements for seven years” and had not been able
to “come up with witnesses” until M filed her 2005 complaint. He believed that M “tried
to hang” him with rumours at that time but had to “give up” her “source” in doing so. He
noted that the 2005 investigation report referenced workplace rumours that he had
“stalked” female officers, and he testified that “this is what I really want to get into.” His
evidence was that he identified at that time the individual who he believed to be the
“source” of “original defamatory false statements” in 1998. He stated that he retained
legal counsel who sought documentation from the Employer following the 2005
investigation, as he had “every intention of putting the Ministry’s Officers before the
Courts.” He believed that this was his right, but that the Employer “blocked” his efforts
to do so. He emphatically expressed the view throughout these proceedings that “there
has never been an agreement, resolution or determination in these matters” and that “all
issues remain open.”
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[17] In responding to the Employer’s motion, the Union referred to its particulars
pertaining to the 2009 grievance, noting May 2009 correspondence from the grievor in
which he referenced the 2005 investigation:
My position regarding my complaint is that M’s behaviour was retaliation and/or retribution for her IIU944-07-05 complaint . . . . There has been no direct contact between M and I since 2005, yet she still
demonstrates an uncontrolled anger. Therefore, M’s behaviour has to be derived from our last events together, . . . her unfounded criminal allegations, her failed WDHP complaint. . . .
[18] Counsel both commented on the Board’s 2008 decision. As noted, that decision
pertained to the grievor’s 2006 grievance alleging that the Employer “failed their (sic)
duty of care” after a co-worker who Counsel advised was M “attempted to institute a
WDHP complaint” against him. The Union acknowledged that the 2005 investigation
was “an aspect” of what was before the Board at that time. In responding to the
Employer’s motion, the Union alleged that the grievor sought documentation from the
Employer following the 2005 investigation to identify who had allegedly made false
statements and that the Employer had resisted his efforts. The Union stated that this
was “one of the challenges disposed of by the Board” in 2008. The Board noted in 2008
that its decision disposed “in full” of the matter before it and that it was issued without
reasons and on a without prejudice and without precedent basis in accordance with the
parties’ agreement to participate at that time in an expedited med-arb process.
[19] The grievor, however, described through later testimony and through 2011 WDHP
submissions later entered in evidence, dissatisfaction with what he referred to as the
“forced med-arb” before the Board in 2008. He commented as follows in 2011 WDHP
submissions:
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The grievance did not resolve the workplace issue or provide corrective action to the defamation, false statement, libel and slander that exists in the workplace concerning H. Unfortunately, the risk from false statement continues because the statements have not been corrected.
. . . The grievance is constantly referred to by the employer, no determination was made and the matter was denied a GSB hearing. I had the right to be cleared of the false statements in 2005. The investigator identifies a
bargaining mechanism between the employer and OPSEU, it was my character and reputation that was destroyed by members of the Ontario Public Service OPSEU members and OPSEU controlled the grievance. . . .
Med-Arbs - . . . I had a right for a full determination and I was denied that right within the design of the grievance process.
[20] The Employer disputed that the alleged 2009 and 2010 incidents giving rise to
the 2009 and 2010 grievances were properly viewed in the context of the Board’s 2008
without prejudice decision and the alleged facts giving rise to the grievance decided by
the Board at that time. Its position is reflected in the following excerpt from the 2014
interim decision:
In the Employer’s submission, the Union now asks me to “peer behind” the Board’s 2008 decision insofar as it suggests that such decision should have “informed” the Employer’s response to the grievor’s reports giving rise to the 2009 and 2010 grievances before me. Counsel argued that to permit the Union to refer to and rely upon a “without prejudice and
precedent” decision that fully determined the matter then before the Board to “bolster” later grievances effectively invites the relitigation of matters already decided by the Board and disregards the parties’ agreement that such decision would be of a without prejudice nature. To accept the Union’s position here would, in the Employer’s view, do labour relations
harm, and discourage participation in the expedited mediation-arbitration process described in the 2008 award. In effect, Counsel argued, the Union asks me to determine the issues raised by the grievances before me, by revisiting matters addressed and determined through the Board’s earlier decision. He suggested that “what permeates these grievances is
the grievor’s inability to accept that the matters before (Vice-Chair) Briggs have been disposed of.” The Employer suggested that if the Union sought a decision relating to the grievor’s 2006 grievance that would be with
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prejudice and of precedential effect, it ought not to have agreed to participate in the process described . . . in the Board’s 2008 decision. (para 30) [21] I upheld the Employer’s preliminary motion, concluding in part that it was “not
open to the Union to “bolster” the grievances before me through reliance on the Board’s
2008 decision or the “history leading up to the decision.” (para 52)
[22] While the 2009 and 2010 grievances were dismissed, there continued to be
issues between the parties throughout these proceedings with respect to the historical
context that was raised by the Union in responding to the Employer’s preliminary
motion. In addressing the later grievances that remain before me for determination, the
Union’s position, in part, was that the Employer failed in its obligations when presented
with the grievor’s 2011 WDHP complaint which it suggested raised issues of workplace
harassment and defamation current as of that time. The Employer, however, disputed
that there was anything “current” raised by the grievor in 2011, and argued that he
sought to revisit the issues already decided by the Board in 2008. What the grievor in
fact complained of in 2011 and whether or not he sought at that time to revisit the same
historical issues raised by the Union in the context of the 2009 and 2010 grievances,
remained in dispute throughout these proceedings.
THE WDHP POLICY
[23] The Employer’s WDHP Policy was entered in evidence, and the Employer took
no issue with the Union’s suggestion that it was in effect at the time relevant to the
grievances before me. The policy states that it “is a requirement under section 32.0.1”
of the Occupational Health and Safety Act.
[24] Whether or not the WDHP Policy defines Employer obligations in issue here was,
however, a matter in dispute. In opening statements, the Union initially suggested that
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the policy is “for all practical purposes part of the collective agreement.” The Employer
disputed that this was so. The Union accepted at that time that the policy is “clearly not
part of the collective agreement,” but asserted that it is nonetheless “an obligation for
the Employer.”
[25] As the policy is referenced in a number of the grievances, excerpts from it are
reproduced here:
POLICY STATEMENT
The Ontario Public Service (OPS) is committed to fostering and sustaining an
inclusive, diverse, equitable and accessible workplace that is respectful and free from discrimination and harassment. . . . PURPOSE
The purpose of this policy is to: -establish a framework for the prevention of workplace discrimination and harassment and effective response to issues of workplace discrimination and harassment
. . . APPLICATION AND SCOPE
. . . Definition of Discrimination This policy covers workplace discrimination as prohibited under the Code.
. . . The prohibited grounds of workplace discrimination include. . . sex . . . , and disability. The policy prohibits discrimination on the basis of these grounds and
any combination of these grounds. Definition of Harassment This policy covers workplace harassment as defined and prohibited under the
Code and the OHSA.
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For purposes of this policy, harassment is defined as engaging in a course of vexatious comment of conduct against an employee or other worker in the workplace that is known or ought reasonably to be known to be unwelcome and includes personal harassment and harassment based on the prohibited grounds of . . . sex . . . or disability.
PRINCIPLES . . .
All allegations of discrimination and harassment are treated seriously and handled on a confidential basis in accordance with this policy and applicable law with an aim to preserve the dignity, self-respect and rights of all parties. Responses to discrimination and harassment
- are provided in a timely manner . . .
Policy enforcement adheres to the principles of procedural fairness . . . . . . . POLICY VIOLATIONS
Engaging in workplace discrimination or harassment . . . is a violation of this policy. Policy violations also include, but are not limited to, engagement in the following discriminatory and harassing behaviours and practices:
-discrimination or harassment in any aspect of employment. . . . - workplace discrimination or harassment of an individual . . . . . .
- sexual harassment . . . . . .
- failure to offer effective or appropriate accommodation short of undue hardship in keeping with . . . applicable legislation - creating, contributing to, or condoning a poisoned work environment . . .
- failure of management, in keeping with its authority, to respond appropriately to information about discrimination, harassment or a poisoned work environment
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. . . MANDATORY REQUIREMENTS . . .
Confidentiality and Privacy During investigation and resolution of alleged policy violations, all information must remain strictly confidential, subject to the rules below, except when sharing
information required by collective agreement provisions or by law. . . . . . . Respondents and complainants must have access to sufficient information about
the allegations and responses of other parties and witnesses to allow effective participation in the process. Personal information must only be collected, used or disclosed when the collection, use of disclosure is necessary to administer this policy. . . .
There must be no reference to a complaint under this policy in an employee’s human resource file unless disciplinary action was taken against the employee. . . .
Before a final report resulting from an external investigation is submitted to the deputy minister. . . for review, a copy of a draft investigation report must be provided to the parties (complainant and respondent) so they can comment on the accuracy and completeness of the facts.
Final reports resulting from an external investigation must be provided to the complainant and respondent upon completion. Parties must not share the draft or final report . . . with anyone . . . . Timeframes Each timeframe outlined under this policy is considered to be the maximum time allowed for each activity. All parties involved in the resolution of discrimination or harassment issues or complaints,. . . are expected to make every effort to act as
quickly as possible and to demonstrate full and complete cooperation in the resolution of issues or complaints. . . .
Every effort must be made to comply with the timeframes outlined in this policy. Timeframes . . . may be exceeded in extenuating circumstances (e.g. if warranted by the complexity of the case) without voiding the process. . . .
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. . . Management Response Managers must act immediately upon becoming aware of potential policy
violations, whether or not a complaint has been filed . . . . . . . Investigation . . . An investigation must be assigned to an . . . investigator within 15 working days of management’s decision that a complaint will be investigated.
. . . External Investigation
An external investigation must be completed and a final report submitted, within 90 working days of assigning a complaint to an external investigator, unless there are extenuating circumstances. The responsible manager . . . must submit the final report to the deputy minister or the deputy minister’s delegate.
The deputy minister or the deputy minister’s delegate must decide on appropriate remedies and notify the parties of the outcome of the external investigation within 30 working days of receiving the final report. . . .
RESPONSIBILITIES . . . Managers are responsible for: . . . -monitoring and maintaining awareness of potential discrimination or harassment
issues in the workplace and taking proactive steps to prevent or address these issues -managing the process for resolving allegations of discrimination, harassment or other policy violations as soon as becoming aware of them . . .
- taking appropriate action to resolve complaints within the timeframes outlined under this policy
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-. . . maintaining the strict confidentiality of information related to the complaint or allegation. . . Deputy Ministers . . . are responsible for:
. . . -receiving, reviewing and acting on reports arising from external investigations . . .
Deputy Ministers’ Delegates . . . are responsible for: . . .
-receiving and reviewing reports arising from external investigations . . . THE 2011 AND 2012 GRIEVANCES [26] Eleven grievances filed in 2011 and 2012 remain to be determined. The Union
took the position in opening statements that the grievances allege the breach of the
Ontario Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”), the Occupational
Health and Safety Act, 2009, c. 23, s. 3 (“the OHSA”), the Employer’s WDHP Policy,
and articles 2, 3, 9, and 22.10 of the collective agreement. Later in the proceedings,
the Union also relied upon article 44.10.
[27] The contractual provisions cited by the Union are set out in part as follows:
ARTICLE 2 – MANAGEMENT RIGHTS
2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce . . .shall be vested exclusively in
the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject.
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(OHRC).
ARTICLE 9 - HEALTH AND SAFETY 9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment….
ARTICLE 22 – GRIEVANCE PROCEDURE . . .
22.10 SEXUAL HARASSMENT 22.10.1 All employees covered by this Agreement have a right to freedom from harassment in the workplace because of sex by his or her Employer or agent of the Employer or by another employee. Harassment means engaging in a course
of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
ARTICLE 44 – SHORT TERM SICKNESS PLAN
. . .
44.10 After five (5) days’ absence caused by sickness, no leave with pay shall be allowed unless a certificate of a legally qualified medical practitioner is forwarded
to the employee’s manager, certifying that the employee is unable to attend to his or her official duties. Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave, the employee’s manager may require an employee to submit a medical certificate for a period of absence of less than five (5) days.
[28] The Union also relied upon the following provisions of the OHSA:
s. 32.0.1(1) Policies, violence and harassment - An employer shall,
. . . (b) prepare a policy with respect to workplace harassment; and
(c) review the policies as often as is necessary, but at least annually.
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s. 32.0.6(1) Program, harassment - An employer shall develop and maintain a program to implement the policy with respect to workplace harassment required under clause 32.0.1(1)(b). (2) Contents - Without limiting the generality of subsection (1), the program
shall, (a) Include measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor;
(b) set out how the employer will investigate and deal with incidents and complaints of workplace harassment; and (c) include any prescribed elements.
Grievance #’s 2011-3211 and 3212 dated December 28, 2011 (“the December 2011
Grievances”)
[29] Union Counsel described these two grievances as “stand alone” grievances.
Grievance # 2011-3211 alleges in part the violation of article 3 of the collective
agreement and states as follows:
The Employer acted with malice, highhandedness and coercion in suspending the grievor without pay for requesting the employer fulfill the obligation of providing a duty assignment that reflects the requirements of the EHIF (Employee Health Information Form) relating to health/disability.
[30] The Union stated in opening submissions that this grievance alleges that the
Employer discriminated against the grievor contrary to the collective agreement and the
Code after it refused to provide him with appropriate and available duties within his
known medical restrictions. Counsel commented that there was a “difference in
opinion” in this regard between the grievor and the Employer, and when he was “afraid”
to assume a task that he believed would jeopardize his health, he was suspended.
This, in the Union’s submission, was “an act of discrimination contrary to the Collective
Agreement and an act of continuing harassment of the Grievor by the Employer . . . .”
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[31] Grievance #2011-3212 alleges in part a breach of article 44 of the collective
agreement and states:
The Employer acted in an unreasonable, highhanded and coercive
manner in requesting the grievor obtain a sick note from a doctor for Nov. 14-15, 2011 a month after the fact – on December 12, 2011 or the grievor would be taken off payroll. The employer request is unreasonable, denies the employee the ability to fulfill the request, and jeopardizes the credibility of doctor.
[32] In opening statements, the Union stated that Grievance # 2011-3212 alleges that
the Employer acted unreasonably in requesting on December 12, 2011 that the grievor
produce a medical note pertaining to absences on November 14 and 15, 2011. In the
Union’s submission, this was a form of harassment and discrimination against the
grievor, and was contrary to the collective agreement.
[33] The Employer responded to Grievance #2011-3211, denying that the grievor was
suspended, and arguing that he was sent home after he refused a duty assignment that
did not breach any accommodation requirement. It also denied Grievance # 2011-3212,
asserting that it acted reasonably and in accordance with the collective agreement in
requesting a medical note for November 14 and 15, 2011.
Grievance #2011-0957 dated June 7, 2011 (“the June 2011 Grievance”)
[34] This grievance alleges in part the violation of the collective agreement, including
articles 2, 3, and 22.10.1, and states as follows:
The employer has violated the word and intent of the workplace WDHP Directive by not completing the Resolution Mechanism in the timeframe set out in the directive.
The breach in timeframe of the WDHP directive is a wanton act of malice and/or neglect and is a conscious decision by the employer. The resulting affect of the employers failing their duty of care is negatively
impacting the grievor’s emotional, physical, psychological and financial well being and places the grievor in harms way. (sic)
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Resolution:
Commence the full investigation in a timely manner (immediately).
Removal from the ASMPP program during the time of the outstanding
investigation, with all days accrued removed . . . . Work assignment/scheduling that will meet the respondent’s needs and protects the respondent’s interests. . . .
For the 105 day breach of the WDHP Directive timeframe, a lump sum payment of $25,000CDN plus $500.00 CDN per day and for every day thereafter, the 105 days, till the final report is provided to the respondent. [35] In opening statements, the Union alleged that M filed a WDHP complaint in
October 2010, but that the grievor was not so advised until January 2011. It referred to
its particulars which state in part as follows:
The Ministry’s WDHP Policy . . . sets out timelines for a prompt disposition of any complaint. . in the interests of all concerned included (sic) the person against whom the allegations were made. These timelines were breached by the Employer to the cost and disadvantage of the Grievor. He experienced the Employer (sic) dilatory execution of its responsibilities
as wilful and/or grossly negligent and as harassment, causing him intense distress and ill-health. [36] The Employer disputed that the grievor’s rights were violated and took the
position that alleged non-adherence with the WDHP policy or the grievor’s belief that the
investigation was not conducted properly do not form the basis of a grievance.
Grievance #’s 2012-3211, 3212, 3213, 3214, 3215, 3216, 3217, and 3218 dated October 31, 2012 (the “October 2012 Grievances”) [37] I quote in part as follows from each of these grievances:
Grievance #2012-3211: The Employer has promoted and sustained a
poisoned work environment and workplace bullying. The Employer is fully aware of the existence of false statements damaging the character and reputation of the grievor, creating an atmosphere of fear, hatred, loathing and ridicule. The false statements need not be believed to poison the work environment or cause damage.
Grievance #2012-3212: The Employer has knowingly and with malice participated in the destruction of the grievor’s character and reputation.
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Two deputy superintendents have been identified as having made use of or conveying false statement. Grievance #2012-3213: The Employer intentionally violated the collective agreement and policies that govern the Employer by corrupting due
process, stalling time lines, blocking disclosure for the purpose of obscuring wrongdoing. Grievance #2012-3214: The Employer conducted a flawed investigation and the Employer exceeded the scope of the investigation. The grievor
was not appropriately informed of the nature of complaint. Grievor was not provided the opportunity to rebut or defend himself against the assertions of the complainant or witnesses. The investigator classified issues raised by the grievor as stale dated, while permitting the complainant to present assertions from the same time frame. Further, the
investigators (sic) scope include matters the Employer stated were closed. Grievance #2012-3215: The Employer has created a biased relationship that the investigator is dependent upon. The relationship between the Employer and the Investigators company (sic) raises serious questions
about their ability to conduct impartial and unbiased investigations. This is based on statements made by the investigator and the finding in her two reports. Distinction without differentiation. (sic) Grievance #2012-3216: The Employers (sic) responsibility for the
investigator is such that the investigation or lack thereof has been so maligned and corrupted, grossly violating the rights of the grievor making the decision of the investigator invalid. I dispute the findings of the investigator and the Employer also disputes the finding of the investigator.
Grievance #2012-3217: The Employer is and continues to be negligent in the creation and retention of an egregious and defamatory report attacking the character and reputation of the grievor. The report is based on highly suspect and malicious personal attacks that are subjective and not supported by facts.
Grievance #2012-3218: The Employer has violated the rights of the grievor by failing to adhere to the WDHP Policy by not notifying the grievor of any discipline or action that might/could be taken as a result of the decision of the investigator.
[38] In opening statements, the Union asserted that the Employer was accountable
for the quality of an investigation undertaken into a WDHP complaint filed by M alleging
that the grievor discriminated against her, and into the grievor’s 2011 WDHP complaint
then characterized by the Union as one alleging that management and M discriminated
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against and harassed him. It stated that the WDHP Policy provides a dispute resolution
mechanism and that the October 2012 grievances allege that the process required by
the policy was breached. The Union referred to its particulars which assert a number of
“inadequacies” in the investigation process, and it suggested that the Employer “failed
to fix the process and did not deal in any way with the conclusions.”
[39] The Union’s particulars regarding the October 2012 grievances state in part as
follows:
These grievances arose from the way in which the Employer responded to
workplace harassment and discrimination complaints by the Grievor and later by M including how it conducted its investigation into the complaints, how it dealt with the investigation report or reports and their conclusions. When the investigator interviewed the Grievor on October 2, 2011 she had
not at the time interviewed M or any of the other witnesses. This was the only interview that took place with the Grievor. She asked no oral questions of the Grievor. Instead she gave him a list of . . . questions that did not cover anything close to the full extent of the issues and asked him to answer the questions in writing. The Grievor did provide the written
answers, as requested. He was given no opportunity to respond to any of the allegations made about him in the subsequent interviews with M or the other witnesses, nor was he afforded the opportunity to comment on any relevant information that subsequently came to the attention of the investigator before she filed her report.
The investigator sent a draft copy of her report to the Grievor and invited him to comment within a specified period. He filed his responses within the time frame but discovered later that the investigator’s report was filed before she received his response and before the timeline allotted to the
Grievor for responding had passed. .. . . M’s complaint was initiated in October, 2010. The Employer had been aware of the Grievor’s concerns for many years. Nonetheless, the investigation only began in October, 2011. The long and unnecessary
delay prejudiced the effectiveness of the investigation and was unfair to the Grievor. The investigator had a totally dependent business relationship with the Employer that resulted in bias or the appearance of bias.
The report included information that the investigator should have known was unreliable, to the effect that the Grievor and M had an inappropriate
- 20 -
relationship, thus publishing to the Employer the very defamation of the Grievor’s character that formed the basis of the complaints. Up to the date of the grievance and beyond, the Employer has failed to take any effective action to protect the Grievor from harassment and
verbal bullying against him by co-workers and managers. This conduct has been pervasive and continuing throughout the institution. The Employer continued to deny the Grievor access to documents he needed to take steps himself to deal with the situation.
As noted in the investigator’s report two deputy superintendents transmitted defamatory statements about the Grievor. Instead of rejecting the investigation report’s finding that Ms. Maccarone
and M did not harass or discriminated (sic) against the Grievor, the Employer accepted the recommendations. This was in itself a breach of the Collective Agreement on the part of the Employer against the Grievor in that it was discriminatory, in breach of Article 9 and its duty to protect the Grievor.
In the letter from Steven F. Small, Assistant Deputy Minister, to the Grievor, incorrectly dated October 17, 2012, the Grievor was advised that the Superintendent of the Institution would contact the Grievor about next steps. The Superintendent did not receive a copy of the letter and took no
steps to contact the grievor. As a result of actions and inaction of the Employer the Grievor has suffered significant health issues. This has frequently caused him to be absent from work and to take sick leave. This in turn resulted in the
Grievor being improperly placed in the ASMPP. [40] The Employer addressed the October 2012 grievances in its opening
submissions. It reiterated that alleged noncompliance with the WDHP Policy does not
form the basis for a grievance under the collective agreement. It denied that it has a
duty to ensure that a WDHP investigation is conducted “to the grievor’s satisfaction,” or
that “nobody ever says anything about anyone in the workplace.” Counsel suggested
that “the problem” here is that “the grievor perceives anything that takes place as rooted
in the pre-2008 period” and that he is unable to accept that those were matters
disposed of in full by the Board’s 2008 without prejudice decision. The Employer further
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disputed in any event that the grievor suffered any ill effects to his health as a result of
alleged Employer action or inaction.
OTHER POINTS TO BE NOTED
[41] Beyond the positions noted thus far, there were no further objections regarding
the Board’s jurisdiction or the arbitrability of the 2011 and 2012 grievances.
[42] The Union alleged in opening statements that the June 2011 and October 2012
grievances pertain to the Employer’s alleged failure to appropriately investigate and
respond to M’s complaint against the grievor, and the grievor’s 2011 complaint then
characterized as one alleging that management and M discriminated against and
harassed him. I raised with Counsel at the commencement of these proceedings
whether notice to M was required. Union Counsel advised at that time that the Union
would take no position in these proceedings that would put M’s interests at stake, and
that I would be asked to adjudicate only upon the Employer’s alleged failure to respond
as required to allegations of workplace harassment. On that basis, notice to M was not
required. There is no dispute that M was a federal employee and has not returned to
CECC since June 2010.
THE UNION’S CHARACTERIZATION OF THE CENTRAL ISSUE
[43] While the grievances before me raise a number of issues, it is useful to note at
this time the Union’s comments in final argument as to what it views as their
“gravamen.” Counsel stated in closing submissions that the critical issue before me is
the Employer’s alleged failure to appropriately investigate and respond to the complaint
“presented” by the grievor during a 2011 WDHP investigation. The Union’s position was
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that the grievor’s complaint at that time was one of “continued and ongoing” issues of
workplace defamation experienced following the Board’s 2008 decision and the 2009
and 2010 grievances decided in June 2014.
[44] The Union stated in final argument that although there is “an aspect of sexual
harassment” raised by the grievances, that is not “the main thrust” of this case. It took
the position at that time that both the investigator investigating the grievor’s WDHP
complaint in late 2011 and then the Employer misunderstood that his complaint was “all
about” alleged sexual harassment and discrimination due to disability. The Union
asserted that the Employer never “figured it out,” and thus failed to meet its obligation to
deal with the grievor’s “primary complaint” of “current and ongoing” workplace
defamation. Union Counsel noted in final submissions that the other grievances “may
or may not stand,” and that my focus should be on Grievance #2012-3211 dated
October 31, 2012 which he stated is “at the root of the issue.”
[45] The Employer disputed that the grievor’s 2011 WDHP complaint alleged
workplace defamation current at the time. Its position throughout these proceedings
was that such complaint reflected the grievor’s determination to revisit the historical
events already decided by the Board in 2008 – the very matters upon which the Union
unsuccessfully sought to rely in support of the 2009 and 2010 grievances that were
dismissed in 2014.
[46] Therefore, while the Employer contested the Union’s allegation that it failed to
investigate and respond appropriately to the grievor’s 2011 WDHP complaint, what that
complaint was in fact all about was a key underlying issue in dispute.
- 23 - THE EVIDENCE
[47] The grievor was the only witness to testify in these proceedings. His testimony
was lengthy, spanning a number of days. While I have considered the evidence in its
entirety, I make no attempt to recite it in full. That said, I agree with Union Counsel that
this is a “fact heavy” case, and I thus consider it appropriate to set out in detail the
evidence before me.
[48] The grievor testified that workplace accommodation with which he had been
provided for some time was “arbitrarily” rescinded in January 2011. He received an e-
mail from the Employer dated January 19, 2011 advising that his “workplace
accommodation of No Nights” had “expired” as of “Dec. 31, 2011.” (sic)
[49] The Employer notified the grievor by January 20, 2011 e-mail that Ms. Tara
Jackson wished to meet with him on January 24 “regarding WDHP allegations” by M.
The grievor testified that he was aware that there had been “an issue” in June 2010
when, in his words, M “had a fit” and complained to the Employer when he was
assigned to perform work in the same area of the institution as her office was located.
[50] The grievor responded to the Employer by e-mail dated January 22, 2011,
referencing the 2005 investigation that formed part of his 2006 grievance decided by the
Board in 2008:
Please be advised that I will be available for this meeting. . . . My counsel has been identified to the Ministry as my representative for issues involving M and her attacks against my character and reputation by means of Defamation, False Statement, Libel and Slander and subsequently her ongoing obsessive
harassment of me as determined by the external investigator for IIU-944-07-05 and her attempts to control my workplace. . . . [51] For the sake of clarity, I note that references in this decision to the grievor’s
Counsel relate to lawyers that he personally retained as distinct from Counsel for the
Union in these matters.
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[52] The grievor received an e-mail dated January 24, 2011 from Ms. Jackson stating
that she would not meet with him as planned “based on the concerns and issues
outlined” in his message.
[53] The grievor followed up with a February 27, 2011 e-mail to Ms. Jackson and
again referenced the 2005 investigation, stating in part as follows:
I have returned to work after a 5-week hiatus (post-traumatic stress, vacation, and regular time off). I am surprised to find no further communication concerning our meeting and/or the rescheduling of this meeting.
I believe by now you should be up to speed on all documents including IIU-944-07-05 and are now ready to proceed with this matter. Although reticent, I am eager to move forward on M’s . . . WDHP. . . unfounded and defamatory complaint.
[54] The grievor was cross-examined about his reference therein to “post-traumatic
stress,” and medical records produced by the Union in these proceedings were put to
him for comment. These include Whitby Medical Centre records for the period July 2006
to February 2012, Lakeridge Health records dated July 31 and August 1, 2011, and
Employee Assistance Program (“EAP”) records dated August 4, 2011. Counsel agreed
that these records were to be admitted in evidence without requiring the Union to call as
witnesses the health care professionals who authored them, but only for purposes of
establishing the dates upon which the grievor sought medical attention and the stated
purpose for which such attention was sought. The grievor agreed in cross-examination
that these records reflect the “sum total” of medical assistance he sought in 2010 and
2011.
[55] The grievor acknowledged that the medical records before me reflect that he
sought medical attention for what appear to be unrelated matters in October 2010 and
again in April 2011, but that he otherwise sought no medical attention between October
- 25 -
2010 and July 2011. He explained that his reference to “post-traumatic stress” in
February 2011 was simply his “own statement.”
[56] Ms. Jackson advised the grievor by e-mail dated March 1, 2011 that she was no
longer “handling this file” and that she had re-directed his inquiry.
[57] The grievor testified that Ms. Katherine Maccarone, Deputy Superintendent of
Administration, CECC, “took over” addressing his accommodation issues as of March
2011. He recalled that he met with Ms. Maccarone and with Ms. Lois Jopling, Staff
Services Manager, CECC, in March and April 2011 regarding his attendance. He
identified an undated e-mail sent to Ms. Jopling in which he alleged the Employer’s
failure to meet its obligations since 2005. He stated therein as follows:
As per our EA meeting on March 09, 2011: Ms. Maccarone stated that she required no more than two weeks to determine the direction that the employer would be taking on the issues discussed. The issues discussed are an employer obligation and responsibility under numerous policies, regulations and statutes that govern the employer, this has a direct affect
(sic) (damages) on my workplace which therefore has a causal effect on my attendance. As of this point in time Ms. Maccarone has not communicated any decision…, and the employer has a history of ignoring, stalling and ‘failing its duty of care’ (negligence) in this matter.
Mr. Polya was assigned to handle this matter on behalf of the Ministry in July, 2005 and… has failed his obligations on this matter for seven years…. (sic) [58] The grievor testified that he was advised by Ms. Maccarone on four or five
occasions that “as far as the Ministry was concerned,” there was no outstanding
investigation against him. He recalled that he then asked if there were any outstanding
complaints against him, and that Ms. Maccarone responded as follows by e-mail dated
April 19, 2011:
I have enquired today about complaints filed. As you know you have an
outstanding complaint filed. In addition I have been told today . . . that a complaint has been filed against as well. (sic) These have been assigned to and external investigator. (sic)
- 26 -
[59] The grievor requested disclosure of “all information, notes and statements,” and
Ms. Maccarone responded as follows:
A complaint has been filed against you. This is being conducted by an external
investigator – I have not (sic) disclosure to provide. I imagine you will be contacted by them. You will have to inquire at that time about disclosure. [60] The grievor testified that on or around April 28, 2011, Mr. Kevin Bell, Deputy
Regional Director, “popped in” to CECC and told him that he was under investigation.
Although the grievor had not filed a complaint, Mr. Bell mentioned as well at that time
that the Employer had initiated a complaint on the grievor’s behalf. The grievor knew
nothing about such complaint, and Mr. Bell had no information in this regard.
[61] In May 25, 2011 correspondence to the grievor, Ms. Marilyn Tomkinson,
Regional Director, Institutional Services, Eastern Region, MCSCS, stated in part as
follows:
Please be advised that you have been identified as a respondent in a
Management Initiated Workplace Discrimination and Harassment Prevention (WDHP) Policy complaint filed on October 29, 2010. In consultation with the Organizational Effectiveness Division, this complaint will be assigned to an external investigator for an investigation.
Once the investigator has been selected through the procurement process, he or she will contact you to arrange a meeting with you. . . . [62] The grievor testified that he filed the June 2011 grievance because of “time lines
dragging on” and “all the damage it causes having this pending investigation coming at
you.” His evidence in these proceedings was that it was “the sheer length of time” that
he “had to endure this” that was in issue.
[63] The grievor was questioned regarding his health between January and June
2011. He testified in chief that his sick time “shot through the roof” after receiving the
Employer’s January 2011 e-mail advising of the WDHP complaint against him. He
suggested that “anxiety becomes stress which becomes depression,” and that he was
- 27 -
“bogged down in this” and frustrated, with no ability to defend his character or
reputation.
[64] The grievor testified that prior to January 2011, he was not in the attendance
management program “at all” and that his sick time was “fine.” He described past
attendance issues in 2011 submissions to the WDHP investigator:
In 2005, . . . I sought medical help. . . . Over the next two years, my attendance suffered and high levels of sick time were incurred. . . . In mid-2008, during an attendance meeting with Deputy Superintendent Dwight Goden, I argued the poisoned work environment and the psychological toll it had that affected my attendance. Although Mr. Goden
would not address the details of my concerns, he did provide an accommodation based on the premise that my attendance would improve. The accommodation eliminated some of the duty assignments that relate to the false statements and allowed me to mitigate the risk caused by the false statements. . . .
In 2009, after the actions of M . . . my mental health became a concern for me and my attendance suffered again. . . . In January 2011, the same day Tara Jackson requested a meeting
concerning M, the accommodation . . . was arbitrarily rescinded by the Employer. I objected to this emphatically. . . . My attendance suffered due to the stress, anxiety and depression. There were numerous employee accommodation meetings and ASMPP
meetings as I progressed through levels and addressed my workplace concerns. [65] The grievor testified that his emotional health was “initially very severe” between
January and June 2011. He expressed the view that this was due to “extraordinary”
difficulty allegedly experienced dealing with the Union and the Employer, and also due
to his anger because the Employer allegedly “blocked” him from “dealing with”
workplace issues following the 2005 investigation. He suggested that “it goes well
beyond this specific thing” though. The grievor recalled that his emotional health “was
not a problem” in 2009 and 2010, but that such “cycle existed in 2011 and 2012.” He
stated that when the Employer initiated an investigation against him in 2011, it put him
- 28 -
“over the top.” He testified that during the January to June 2011 period, he suffered
from “high emotional anxiety” on all days that he booked off sick. He recalled that he
was emotional and disengaged, did not enjoy life, and “let everything slide.” He testified
that “stress and anxiety comes and goes.” His evidence was that medication was not
needed in 2009, but that he had to “cycle on and off” it in 2010. His evidence was that
the “worst part” was in late January and the summer of 2011.
[66] The grievor testified that he generally saw Dr. Daniel Nagel when he visited the
Whitby Medical Clinic. As previously noted, the grievor acknowledged that entries in Dr.
Nagel’s records for late 2010 and early 2011 reflect October 2010 and April 2011 visits
for matters not relevant to these proceedings, with no further visit to the doctor recorded
until September 14, 2011. The grievor explained that when he went through “very bad
spells,” he went on medication, and that when “things levelled off,” he came off
medications and maintained his own health. He suggested that he “dealt with it” in 2009
and 2010 up to January 2011 when the Employer told him he was under investigation.
[67] The grievor testified that his wife “made” him visit Lakeridge Health and that he
did so once in 2011, before then seeking assistance on one occasion through the EAP.
He also described a 2012 visit to Lakeridge, along with the circumstances which he
suggested prompted such visit. The grievor was clear, however, and the medical
records in evidence reflect that he attended at Lakeridge only once, or as the records
demonstrate, twice on two consecutive days, and that he sought assistance through the
EAP on one occasion after his Lakeridge visit. His confusion in describing health
conditions that required hospital visits in both 2012 and 2011 was addressed in cross-
examination, and he acknowledged at that time that there was no reason to doubt the
accuracy of the 2011 dates recorded in Lakeridge records.
- 29 -
[68] Lakeridge records reflect that the grievor reported in July 2011 stress due to
employment disputes, anxiety, low mood, emotional lability, poor sleep, no energy and
variable appetite. The grievor testified that he saw a psychologist and a psychiatrist at
the hospital, and was prescribed no medication.
[69] The grievor recalled that he mentioned at Lakeridge that he had access to
services through the EAP, and that he was encouraged to pursue such assistance. He
did so, and met once with an individual who he variously described as a psychometrist,
a psychoanalyst or a counsellor. EAP records dated August 4, 2011 reflect that the
grievor reported at that time that he was “facing workplace harassment issues” and that
he described “symptoms of depression, anxiety and stress.” The grievor understood
that he was suffering from “severe depression” and recalled that he was advised to
follow up with his family physician.
[70] He did so several weeks later, and a September 14, 2011 entry in Dr. Nagel’s
record reflects that the grievor saw him that day. Whitby Medical records reflect that the
grievor reported at that time that he had been seen at a “crisis centre” which the grievor
understood to refer to his visit to Lakeridge. While Dr. Nagel referenced in his note
“supportive psychotherapy,” the grievor testified that he was not referred for treatment at
the time. Dr. Nagel noted on September 14, 2011 that the stated purpose of the
grievor’s visit was “to speak with md re anxiety and depression.”
[71] The grievor gave evidence regarding workplace accommodation which was in
issue in 2011. While he testified that Ms. Maccarone “jerked” a “no nights”
accommodation with which he had previously been provided as of January 2011, he
agreed in cross-examination that it “could be” that he was not scheduled to work nights
until July 2011. The grievor’s evidence was that when he “started arguing” with Ms.
- 30 -
Maccarone, she suggested that he approach the issue of accommodation from a
medical perspective and obtain a doctor’s note, but that he wanted to “do it the proper
way,” through a “formal EHIF.”
[72] The grievor recalled that there were “a couple of meetings” in the Spring 2011.
Just prior to his July 31, 2011 visit to Lakeridge, he sent an e-mail dated July 28, 2011
to Ms. Maccarone, stating in part as follows:
this (sic) is a follow up to your absolutely disturbing and dismissive phone call relating to a workplace issue that you are fully aware of involving substantive and unjustifiable risk to me. I have gone from suspension with
pay pending interview, to suspension without pay with no examination of the facts. I have agreed to work but that the work assignment must address the risks posed by the defamation false statement libel and slander of those under your responsibility and your failure and the failure of your predecessors to correct the work environment. (sic)
your approach was of an exceptionally inappropriate form, (sic) Your denial of my repeated requests to conduct the conversation with union representation and to your willful blindness of the facts that have caused this situation. (sic) You have behaved in an absolutely calleous manner
both within the workplace issue and the deep psychological impact that the issue has caused to me. (sic) Your actions and behaviours in handling this matter have been malicious and malfeasant at best. Willful Blindness. (sic) And your attempts to side-step the issues through a
medical stress offer is quite apparent. . . . (sic)
[73] The grievor understood that by July 2011, Ms. Maccarone “got permission to
accept a doctor’s note for no nights,” but he testified that “no nights was not the issue.”
He was of the view that a doctor’s note would “circumvent the need for proper
documentation” and that he thus reiterated to Ms. Maccarone that he “wanted a formal
EHIF.”
[74] While the grievor was steadfast in his testimony that Ms. Maccarone resisted his
request that an EHIF be completed and while he similarly suggested in a November
2011 submission to the WDHP investigator that an EHIF was ultimately only created “at
my request,” he recalled otherwise in December 2011 WDHP submissions:
- 31 -
Maccarone suggested an EHIF and after explaining it to me she stated I could be involved in trying to focus the questions on my issues. The idea was Maccarone’s and she made it to my union rep. . . . The rep offered to be present to help construct the document, due to insight.
[75] The grievor was clear through his testimony and through his July 28, 2011
communication to Ms. Maccarone that the workplace accommodation he sought at the
time was due to “false statement” and the alleged failure of the Employer to “correct the
work environment.” In cross-examination, he was asked about his reference to “false
statement” in his July 28 e-mail. He agreed that other than the 2011 investigation itself,
the events to which he referred predated M’s June 2010 departure from the workplace.
He explained that alleged defamation “relates to the workplace itself [and] the ability to
catch a rumour,” and that “all of the stresses that caused this still exist” so that “it
catches up to you.” The grievor testified that “once they exist, they exist” and that it
“has to be aired fully.”
[76] Also in evidence before me is an August 2, 2011 letter from Ms. Maccarone to
the grievor requesting that he attend at a meeting to respond to allegations that he
abused sick credits in July 2011, failed to provide a medical certificate for July 2011
night shift absences, and was insubordinate in refusing to assume such work
assignments. A medical note from Lakeridge Health dated August 1, 2011 was entered
in evidence and states that the grievor was unfit to work from July 18 and would
continue to be unfit for work until August 5, 2011. The grievor testified that his July 28
e-mail to Ms. Maccarone set out above related to the issues addressed in her August 2
correspondence. He acknowledged as well that his July 2011 absences addressed in
Ms. Maccarone’s August 2 letter were changed from leave without pay to paid sick days
once he provided the Employer with the August 1 Lakeridge note.
- 32 -
[77] By e-mail dated September 25, 2011, the grievor asked the Employer to advise
of the status of the outstanding investigation:
As you are now aware I have retained Toronto law firm . . . as my
representatives for the ongoing matter of the WDHP investigation that remains outstanding and long overdue.... I have repeatedly demonstrated my willingness to resolve this matter . . . . I would like to encourage you . . . to advise of the status of the investigation . . . .
[78] Ms. Tomkinson responded to the grievor the following day advising that she
understood that the investigator was “in the process of setting up interviews.”
[79] The grievor, together with his lawyers, met with the investigator only once, and
this took place on October 6, 2011 for approximately one half hour. He testified that he
was asked no questions at the time, and that the investigator advised that she had not
yet interviewed anyone and “did not know what this was about.” The grievor expressed
concerns that he did not know where “the complaint was coming from.” He was
provided with no copy of a complaint or of an Occurrence Report filed by M in June
2010, and could not recall if his lawyers requested such documents. The grievor
testified that the investigator provided his legal counsel with a list of questions at that
time. His lawyers noted that they had not had the opportunity to review the questions,
and the investigator invited them to take them away after the meeting was concluded.
The grievor also gave evidence that the investigator described her background as a
former provincial government employee, and advised that as an external investigator,
she derived substantial business from the Ministry which employed the grievor. The
grievor recalled asking the investigator about the complaint which Mr. Bell advised had
been filed on his behalf. He was told by the investigator that the “Ministry does that and
the employee then steers it.”
- 33 -
[80] The parties agreed that an EHIF completed by Dr. Nagel and dated October 7,
2011 should be entered in evidence. It states in part as follows:
3. Is there in fact a bona fide medical condition that would necessitate a complete exemption from working nights?. . . Due to anxiety relating to workplace issues, he should avoid activities where he has to track other workers. 4. . . . (W)ould an assignment to a more sedentary post while on a night shift address this employee’s issues?. . . No, since he may still be tracking other workers.
5. H has disclosed that working night shifts cause (sic) him to be anxious and cause overwhelming stress. Can you explain? Anxiety caused by tracking other workers.
6. Is this requirement permanent or temporary? . . . Unknown. May depend on legal proceedings. [81] The grievor acknowledged in cross-examination that observation of co-workers is
part of a Corrections Officer’s duties, and that Officers must always be aware of their
surroundings for their safety and for that of others. He described that night shift was
minimally staffed and that two officers were assigned to each unit at that time. He
testified that his “issue” was not “technically” related to night shift, but to the need to
monitor co-workers. He attributed his need for accommodation to “the environment
created by the Employer through the false statements.” He was of the view that what
was regarded as “patrol” for other Officers had been characterized as “stalking” in his
case by M in 2010 and by another employee in the 1990’s, and that the issue was thus
how his actions may be interpreted by others because of alleged defamation. He
explained that a duty assignment that required tracking and monitoring causes stress
which, he suggested, “obviously leads to depression.” He expressed the view that
- 34 -
assignment to “female units” was also “an issue” because his “character and reputation
had been destroyed.” The grievor testified as well that it was not working with another
Officer to which he “objected,” but to working in isolation with another Officer.
[82] In describing what he viewed as the basis for his accommodation request, the
grievor explained that “false statements play into what causes anxiety and depression,”
and that they “play out” both “in my head and reality.” He testified that the Employer
had to “correct everything that had gone wrong” because of alleged defamation, and
that it was necessary to “mitigate risk by controlling” his duty assignment. He explained
that “there is nothing fresh about this” and that the Employer had put him “through this
for so many years.” He referred to the “aggregate of statements” in 2005 and 2010 from
M and her witnesses, and suggested that the Employer failed to “correct” this. He
believed that as a result, people looked at him “through tinted glasses.”
[83] The grievor responded to the questions the WDHP investigator presented to his
Counsel at their October 6, 2011 meeting. He believed that his undated response
entitled “WDHP Complaint of M Re: H – Responses of H to Written Questions of
Investigator . . .” was submitted to the investigator on October 14, 2011. He attested to
the accuracy of the content of his response. The focus of the questions and answers
was on pre-2005 interactions between the grievor and M, and the 2005 investigation
that followed. The grievor noted that he had spent six years “trying to protect” his
character from “false statements” which he suggested were “instigated” in 1998 when
a co-worker allegedly described that he had “stalked” a female colleague. The grievor
also referred in some detail to the alleged 2009 and 2010 incidents giving rise to the
2009 and 2010 grievances decided by the 2014 interim decision. Excerpts from the
document are set out as follows:
- 35 -
Question 3: How would you describe your relationship with her (M)?
At one time we were friends. . . .M’s behaviour . . .became increasingly vindictive and malicious. Within the workplace, she has defamed me and spread false statements and false allegations about me. . . . M’s behaviour has irreparably
damaged by (sic) reputation and is at the centre of my poisoned work environment. . . .
Question 5: . . . M acknowledges that you were friends . . . However, . . . your
behaviour towards her was interpreted as stalking. . . . For instance, you
observe who goes in and out of her office and that on one occasion . . . you entered her office and ripped off a little dolphin you had given her from . . . the
bulleting (sic) board. Also, that around the summer of 2003 or 2004 you called
her . . . and asked her what she was doing for lunch. She told you that she was
not having lunch. However, subsequently, another friend called her and invited
her to lunch and she agreed and went to Tim Horton’s. As they were leaving with “take out” they noticed that your were (sic) parked next to her friend’s car and
that you asked her why she told you earlier that day that she was not having
lunch and that you followed them down to the river where they decided to eat and
sat about 30 feet away and watched them eat. How do you respond?
. . .
As regards M’s claim that I observed who goes in or out of her office, as a g-wing Officer, it was my responsibility to get inmates for her and send them to her office. If someone dropped in on her I would be aware of it because they would have to squeeze by me at the . . . desk. Other than in the performance of my duties, I had no interest in who attended M’s office.
M’s claim regarding the dolphin is untrue. M and I intended to have a discussion before she left that day concerning our interaction (around September 2004). . . . I asked and received the dolphin back. I had previously given her the dolphin earlier that year (on or near March 2004)
M’s description of events in relation to the Tim Horton’s (sic) is inaccurate. At the time, which was the beginning of April 2004, I was living in Peterborough . . . . In August 2005, during the previous investigation of this matter, IIU-944-07-05, I had a discussion with Officer SB. . . . Officer SB also told me that M claimed
that I was stalking her after I had left them at the park. . . . Question 7: M acknowledged . . . that in 2005 . . . she agreed to the resolution
proposed . . . . She said that . . . for 2 years she never saw, spoke or heard
from you until when she received a letter from your lawyers in 2007 accusing her
of acting inappropriately towards you. . . . How do you respond?
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I was interviewed for IIU-944-07-05. At no time have did (sic) I agree to any resolution.. . . My counsel immediately advised the investigator and the Ministry of our intent to fully defend my character and reputation against defamation and false statements, including M’s identification of Officer GB and his false
statements concerning TM. Beginning as far back as 1998, rumours and false statements, instigated by GB described me as having stalked TM. . . . I never agreed to my employer moving my work location to POD 1 . . . as this action caused damage to my reputation by making me appear at fault. . . . The letter from my legal counsel was sent after I exhausted numerous avenues of pursuing
the matter and was left waiting for a long grievance process. M has a history of making defamatory, false allegations against me and it was prudent to exercise my legal rights and issue a form of “cease and desist” letter from counsel.. . . Question 8: It is my understanding that again in 2009 you filed a sexual
harassment case against her and she responded that she was shocked because
she had no contact with you . . . since responding to your lawyer’s letter in 2007.
How do you respond?
In 2009 I filed a WDHP complaint against M. The incident prompting me to do so
is described as follows: M was at the visit desk in an upstairs corridor talking with Officer SB. . . . When I was at the pass door, I waved to SB and he responded by saying “Hi.” At lunch, I again went past SB . . . . He told me that I had gotten him in trouble. .
. . After a couple of weeks SB . . . stated that she (M) still hasn’t talked to him . . . It was at this point that I decided to file a formal WDHP complaint due to her emotional extortion of my coworker and her retribution against them, also for her retaliation against a WDHP respondent. The argument is that based on the finding of the investigator in IIU-944-07-05 . . . this is sexual harassment.
Because we have not had any contact her behaviour towards SB must be based on M (sic) previous interaction with me in 2005 and would be an extension of the finding of IIU944-07-05 . . . . Question 9: My understanding is that M left the workplace in June 2010 because
she saw you pacing up and down in front of her office . . . . She apparently saw
this as your way of intimidating . . . her particularly since you should not be there
based on the 2005 resolution that was agreed upon . . . . How do you respond?
. . . M’s office is at the end of . . g-wing corridor. I was assigned to finish
Doctors Parade at 14:00 hours on this day. . . I moved inmates to and from their units.. . . At no time did I go near M’s office. . . . M’s stated fear for her safety as a result of my actions is without basis. . . . In my view, she falsely claims that she is afraid of me in order to manipulate circumstances. . . .
Question 10: Do you believe M is justified in believing that you have been
stalking her . . . ?
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M is wholly unjustified in believing and alleging that I have ever stalked, bullied or harassed her. The statements M has made . . . were made by M, knowing them to be false, with the intention and effect of causing damage to my reputation. Question 11: Is there anything you would like to add?
. . . I have spent the last six years trying to protect my character and reputation from defamation, false statements, libel and slander. I have fought for closing the doors that the Ministry opened, corrective action for the poisoned work environment, mitigation of the substantive and unjustifiable risk to me, and a
resolution to the reputational damage caused to me. My employer is fully aware that this matter has been ongoing . . . . M is accountable for her statements, but my employer is accountable for this situation and the false statements of GB as identified by M, and myself.
[84] The grievor testified that although he had not filed a complaint, he fulfilled his
“obligation to participate” in the WDHP process by making submissions. His complaint
was ultimately set out in three different written submissions delivered to the WDHP
investigator in late 2011, and again, he attested to the accuracy of his statements
therein. First, the grievor identified an undated document entitled “WDHP Complaint of
H - File #2011-OT-1634 Summary of Complaint” which he believed was delivered to the
investigator on October 14, 2011. The grievor addressed in some detail interactions
with M up to 2005, her 2005 WDHP complaint and the investigation that followed. He
noted that his 2006 grievance decided by the Board in 2008 was “with respect to the
conduct of the investigation of the 2005 Complaint. . . .” He reiterated his dissatisfaction
with the consensual med-arb process in which the parties participated in 2008, and with
the Employer’s alleged failure to address his concerns “in a meaningful way.” He
commented on the alleged incidents giving rise to the 2009 and 2010 grievances. In
setting out excerpts from the grievor’s submission, I have substituted “HH” and “S” for
two nicknames referenced therein, given that such nicknames are suggestive of the
grievor’s surname, and given the Union’s request that the grievor’s identity be
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anonymized herein. I note that one of the nicknames closely resembles the word
“stalker.” Excerpts from the grievor’s submission are set out accordingly as follows:
M’s False Statements Regarding H Between 2005 and 2010, H managed to avoid contact with M. However, other staff advised H that M was making false statements about him in the workplace. . . . At this time graffiti appeared in washrooms with the word “S” and a character that has depicted H in workplace graffiti since 1993. Reports were filed with the
Employer and manager photographed the graffiti. . . . . . . Harassment – False Statements As a result of M’s 2005 Complaint, the Employer became officially aware that H’s character and reputation was being damaged not only by M, but by other employees as well. The Employer learned from M that rumours and false statements and allegations were rampant in the workplace causing significant
damage to H’s reputation. . . . M identified . . . to the investigator of IIU-944-07-05 that GB was responsible for some of the false statements. GB’s first false statements in relation to H date back to 1998. Harassment – Graffiti H’s Employer has long been aware that H has been the target of harassment. The Employer has been willfully blind and permitted the harassment to continue unabated. Graffiti was commonplace at Millbrook Correctional Centre and targeted a number of officers. In the case of H, the character known as “HH”
have been reproduced over the years. (sic) Depictions of [HH]… started to appear about 1993. In September 1998 [HH] . . . appeared with the word ‘S’on them, and although H removed and also asked to have graffiti removed, the Employer ‘gave up’ trying to end the graffiti. It was not until the 2005 Complaint that the story behind the “HH” and the “S” graffiti were identified by M and her
identification of GB and his defamatory false statement that H was/had been ‘stalking’ officer TM. Employer’s Failure to Take Action
H’s Employer has failed to take steps to address the harassment and false statements and allegations that H has been subjected to for a number of years. Investigation IIU-944-07-05 failed to address the harassment and false allegations H has been subjected to over the years. Many matters have been left unanswered. . . . The Employer failed its duty of care in the handling of the IIU-
944-07-05 investigation. The Employer failed its duty of care following the investigation.
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The Employer failed to formally clear H of wrongdoing and also denied H the ability to defend his character and reputation against statements made by Ministry employees. . . .
The Employer harmed H’s reputation within the workplace and contributed to the rumours about him by reassigning his work location as a result of M’s complaint. The Employer has failed to take corrective action in the workplace for the
damage done by M’s false statements and the ‘rumour mill.’ The Employer failed to address the GB issue and by extension the false statements concerning TM.. . . .
The Employer failed to mitigate the substantive and unjustifiable risk caused to H by the false statements and harassing behaviour. The Employer permitted M to remain in the workplace . . . .
The Employer claims resolution to IIU-944-07-05. H is aware that the Employer has created files about him that they will not allow him to access. H has continually objected to the Employer’s position and H was not a party to any resolution. . . . H believes it is highly objectionable that the Government of Ontario keeps secret files on its citizens accusing them of crimes and denying
them ability to address and defend themselves to such egregious allegations, aside from other concepts of being able to face your accuser and being able to challenge the accuracy and truthfulness of witnesses. The Employer was highhanded and dismissive towards a 2006 complaint filed
against the Employer by H and his concerns. . . . The Employer violated its own privacy requirements and intentionally/negligently endangered H’s safety . . . . M’s claim . . . is an agreed fact during IIU-944-07-05. H believes that possession of this information is a large contributing factor to
M’s unacceptable and destructive behaviour. The Employer’s actions and statements were unacceptable and highly suspect when the Employer requested to meet in January 2011 concerning a complaint by M, and when the use of legal counsel by H was brought to their attention the
Employer cancelled the meeting and then denied the existence of any outstanding investigation. The Employer violated their own WDHP policy when they failed to complete a full external investigation within the 105 days from M’s latest complaint of October 29, 2010.
The Employer has permitted and encouraged M’s harassment of H by creating false perceptions and wrongful expectations. Although M does not currently work
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at H’s work site at the moment he is not aware of anything that prevents her return. [85] The grievor testified that the investigator requested a list of management
personnel aware of the issues he raised, and he responded by providing her with an
undated document, entitled “WDHP Complaint of H – File #2011-OT-1634 – Information
Provided to the Investigator.” The grievor confirmed therein that M is “one of the
Respondents to his complaint.” He provided a list of “management personnel” with
whom he “dealt . . . during the time period of his complaint” and noted a “timeframe of
communications” spanning from 2005 to 2011. He described in cross-examination roles
he attributed to each of the 23 named individuals, including involvement in setting up
the 2011 investigation, attendance at meetings, knowledge of the “2005 incident,”
inclusion in e-mail chains and involvement in the Attendance Support and Management
Pilot Program (“ASMPP”). The grievor confirmed in cross-examination that Ms.
Maccarone’s name was included on the list only in relation to accommodation and sick
time issues. He further stated as follows in responding to the investigator:
Due to its lengthy history, numerous management personnel have had
involvement with this matter. H has attempted over many years to have the Employer address his concerns fully due to the seriousness of the damage caused to his reputation and the harassment he has endured in the workplace. The staffing turn over in upper management positions has unfortunately contributed to the historic failure of the Employer to address
H’s concerns. . . . The last three individuals named above [Kathy Maccarone, TR, and CH]
became involved in this matter when it proceeded as a poisoned work environment/ASMPP/Accommodation issue. [86] By e-mail dated November 8, 2011, the investigator sought clarification from the
grievor’s Counsel as follows:
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I noticed in the Complainant’s complaint against the Respondent Employer that he referred the ASMPP Program/Accommodation. (sic) Is he alleging discrimination on the basis of disability. If so, I need all the particulars.
[87] Apparently in response to that request, the grievor submitted to the investigator a
document dated November 14, 2011 entitled “WDHP Complaint of H – File # 2011-OT-
1634 – Information Provided to Investigator . . . As Requested by email dated
November 7, 2011.” The grievor understood that the investigator sought clarification
regarding the “failure to accommodate complaint” because “initially the complaint is
about the poisoned work environment.” He testified that this document “ultimately winds
up being my complaint against the Employer.” I quote from it as follows:
The following summarizes the failure of my Employer . . . to discharge its duty to accommodate pursuant to the ASMPP. The issue of discrimination based on disability, as it relates to the Employer’s failure to discharge its duty to accommodate, is an extension of the issues under investigation.
ASMPP issues in this matter relate to the poisoned workplace and history and events and experiences I have endured . . . as detailed in the prior information I have submitted in this investigation. . . . The Employer’s duty to accommodate is currently an issue between the
Employer and myself. The Employer is currently in possession of an EHIF employee health information file that is necessary to reinstate the accommodation that was rescinded by Ms. Maccarone. Unfortunately, the Employer cancelled our meeting on November 3, 2011. That meeting was intended to address, in part, the psychological affect (sic) of the damages caused
by the defamation, false statements and malicious complaints by members of the OPS and M as well as the actions and behaviours of the Employer, as set out fully in my complaint. . . .
M is responsible for her false and malicious allegation, however, the Employer’s action of moving my work location falsely characterized the outcome of the investigation. . . . The Employer’s failure to: disclose findings . . . and provide disclosure at every stage including . . . the grievance process, all contributed to
the stress, anxiety and depression I have experienced.
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In 2005, . . . I sought medical help. . . . Over the next two years, my attendance suffered and high levels of sick time were incurred. However, the Employer failed to make a serious attempt at addressing the attendance issue, the poisoned work environment and generally failed in discharging their duty of care.
In mid-2008, during an attendance meeting . . . , I argued the poisoned work environment and the psychological toll it had that affected my attendance. . . . . . . . Mr. Goden . . . did provide an accommodation . . . . This accommodation . . . allowed me the ability to remain in the workplace. . . .
. . . In January 2011, . . . the accommodation Mr. Goden provided was . . . rescinded by the Employer. . . .
My attendance suffered due to stress, anxiety and depression. There were numerous employee accommodation meetings and ASMPP meetings . . . . Ms. Maccarone was dismissive of my concerns, or the hardship rescission of the accommodation would cause me. Ms. Maccarone claimed an abuse of sick time .
. . The issue was pacified when the absences were converted to sick time. . . .
At my request, an EHIF was created. . . . Unfortunately, the EHIF was generic in
nature and focused on an employee working nights and/or with inmates. . . . Night shifts as a time frame are not an issue, however, the institution is minimally manned and the duty assignments that remain pose a substantive and unjustifiable risk. The risk is caused either by the actions required for the
performance of duty, the ability for malfeasance by staff to discredit me, and proximity to individuals that have a role in the destruction of my character and reputation. . . . As I have previously stated, I am awaiting a response from the Employer on the
ASMPP issue and their duty to accommodate. The issue of discrimination based on disability, as it relates to the Employer’s failure to discharge its duty to accommodate, is an extension of the issues under investigation. [88] The grievor was cross-examined about his WDHP submissions. He
acknowledged that his initial WDHP submission made no reference to the EHIF, but
testified that his complaint was nonetheless “purely” about the EHIF and about the
Employer’s alleged failure to act in accordance with it. He explained that “the false
statement issue supports the EHIF.” He was asked for clarification as to what the “EHIF
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issue” encompassed, and specifically, whether it related to Ms. Maccarone’s August 2,
2011 correspondence regarding alleged abuse of sick credits in July 2011. He initially
stated that “it could apply to November,” but then clarified that it related “to July or to
other times I dealt with the issue.” When asked what those “other times” might have
been, he responded that the July 2011 interaction with Ms. Maccarone was “the main
one” and he offered no other particulars. While the grievor confirmed in his submissions
to the investigator that M was a respondent to his complaint, he testified that it was the
investigator who was “steering” his complaint “towards” M and Ms. Maccarone. He
explained that his complaint alleged failure of the Employer to follow his EHIF and the
WDHP in the context of a poisonous work environment.
[89] The grievor gave evidence regarding November and December 2011 events
which culminated in the December 2011 grievances. In a November 21, 2011 e-mail
from the grievor to his lawyers entered in evidence and in December 2011 submissions
to the WDHP investigator, he stated that he submitted the October 7, 2011 EHIF to the
Employer on or about November 3, 2011. He recalled that he was scheduled to work
days or afternoons, or was on “built in time off” following October 7 up until November
14.
[90] The grievor was scheduled to work nights on November 14 and 15. He testified
that he called in sick due to “mental health concerns” and to “being out of sorts.” He
acknowledged, however, that he advised Ms. Maccarone by December 13 e-mail that
he “spent Nov. 14th working on” WDHP submissions “with legal counsel.” In that same
e-mail, he noted that “the majority of the investigation has been dealt with in non-
working hours . . . , yet the Ministry has not offered to compensate me for my time.”
When cross-examined regarding his health on November 14, he was able to recall that
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he was in fact ill at the time, and suggested that he likely did nothing more than sign the
WDHP submissions “with the counsel” of his lawyers. The grievor testified that he was
not asked for a medical note when he called in sick November 14 and 15.
[91] The grievor gave evidence that after being ill November 14 and 15, he realized
that his period of sickness was going to be more protracted than had been anticipated.
Initially in examination in chief, he recalled that he then visited Dr. Nagel and obtained a
note covering absences from November 16. He testified that he called in sick on
November 16 and was asked for a note by Ms. Marcie Patterson. While the grievor
could not specifically remember which days between November 16 and 19 were sick
days and which days were scheduled off work, he initially recalled that at least some of
the days between November 16 and 19 were sick days attributable to the same medical
condition from which he had suffered on November 14 and 15, that he provided a
medical note for those days, and that the Employer accepted that note and paid him. In
cross-examination, although less certain that his post-November 16 medical condition
was “the same” as that from which he suffered on November 14 and 15, his evidence
was nonetheless that he returned to work on November 20 and provided a medical
note at that time for sick days from November 16. He testified that the Employer
accepted that note and that he was paid for those sick days. His evidence was that he
was not asked for a medical note pertaining to November 14 and 15 until December 12.
[92] At another point in his evidence in chief, the grievor described that after having
been ill on November 14 and 15, November 16 and 17 were scheduled days off, and
that he returned to work on the November 18 night shift.
[93] The grievor’s evidence was that there was not as of November 18 “agreed upon
accommodation” and that the EHIF was only “approved” in 2013. He stated that the
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accommodation issue “came to a head” on November 18, 2011. Upon his return to
work that night, he was assigned to 6 Pod. The grievor gave evidence that he
understood that “the bar is so low to qualify for accommodation,” and that he believed
his work assignment to “violate” the EHIF. He testified that assignment to 6 Pod would
have caused “extraordinary anxiety” and left him “susceptible to false allegations.” He
further testified that he advised the Duty Manager that he had an EHIF setting out
required accommodation. He recalled that he was then assigned to the “upstairs desk”
and subsequently to the Radio Room, and he testified that he viewed either of these
assignments as meeting what he understood to be his restrictions. He further described
what took place in November 21, 2011 correspondence to his lawyers, stating as
follows at that time:
I wanted to advise you that on Friday November 18th I was suspended without pay from work after requesting an alternate duty assignment based on the EHIF health related issue that was submitted on November
03. . . . Originally the night manager, Mr. Storey, reassigned me to the radio room which is acceptable to the EHIF. When Mr. Storey was finally able to reach a deputy superintendent, Mr. Storey advised that they directed him to order me to my assigned post or suspend me without pay for insubordination if I didn’t go. I requested an alternate duty assignment
in accordance with the EHIF, I was escorted out of the institution. . . . (sic) [94] The grievor gave evidence that Mr. Storey advised him on November 18 that it
was Ms. Maccarone who directed him to send the grievor home if he refused to assume
his assigned post. His evidence was that he worked from 19:00 – 21:00 that night
before being sent home, and that he was later paid only for those two hours. He
characterized the events of November 18 as a “standoff” between Ms. Maccarone and
himself, and suggested that what happened that evening reflected her need to “control”
him and “to win.”
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[95] The grievor testified that “after the fact,” the Employer no longer described what
took place on November 18 as a suspension, but rather, referred to is as “no work, no
pay.”
[96] The grievor’s evidence was that he was absent from work from November 19 to
December 8, 2011 due to a combination of sick days and scheduled days off. He
testified that he was off work due to “issues in the workplace” and specifically due to
stress and anxiety that were “through the roof” because of his alleged suspension on
Friday, November 18. His evidence was that he went to the doctor on November 19
and “discussed anxiety.” The grievor testified that he did not ask the doctor that day for
a medical note pertaining to his November 14 and 15 absence from work, and had not
been made aware by the Employer that a note would be required for those dates. In his
Monday, November 21, 2011 e-mail to his lawyer referenced above, the grievor stated
that he “was sick on Sat. & Sun. with a doctor’s note” and that he would be “going back
to the doctor that completed the EHIF,” and anticipated “being sick for the last three of
my night shifts wed-fri. to minimize anxiety, stress and depression related issues.” (sic)
[97] The grievor testified that he returned to work on December 9, and provided the
Employer with a note for sick days from November 18. He recalled receiving an e-mail
from Ms. Maccarone, to which he referred as follows in December 2011 WDHP
submissions:
On December 12, 2011, I received a letter from Maccarone that I would not be paid for November 14, 15, 19, 20, 21, 23, 24, 25. The 19-25
exceed the five days and require a doctors note and two have been provided. November 14-15 were followed by my attendance for Nights on the 18th and therefore not apart (sic) of the time-frame requirement. Maccarone is requesting a doctor’s note, before H is paid, a month after the fact. This request is unacceptable. Maccarone has repeatedly stated
her right to request on reason of suspecting abuse. This contradicts the empathy she claimed to the investigator.
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[98] The grievor responded to Ms. Maccarone by e-mail dated December 13, 2011.
He urged the Employer to “get at the root cause of the issues” and further stated as
follows:
Please be advised that I am in receipt of your memo dated December 09, 2011. Also be advised that I have Doctor’s notes for the November 19-20 and November 23-25 that I obtained at the time of booking sick.
However, November 14-15 is not covered by a doctor’s note and is not part of the 5 day requirement, as I did come to work on the 18th of November. I believe it inappropriate to request a doctor’s note a month after the fact, and require a doctor to retroactively provide a note. I have no intention of requesting one from a doctor for those two days for the reasons mentioned. Additionally, November
12-13 was booked as vacation, however I spent those two days working on a document for the external investigator as she initiated a request for information concerning discrimination by the employer based on disability. I also spent November 14th working on the document with legal counsel. All this focus on the issues created tremendous stress and anxiety and depression. The majority of
the investigation has been dealt with in non-working hours, and through legal counsel, yet the ministry has not offered to compensate me for my time. As stated, I came to work on the 18th of November and requested that the employer provide a duty assignment in accordance with the EHIF. . . . Although
the Om-16 (sic) determined a work location that meets the requirements, he was overridden by a senior administrator, whom I believe to be Ms. Maccarone. The Om-16 (sic) subsequently was directed to order me to my original post and then suspend me without pay for insubordination if I did not comply.
I believe this action to be retaliation for exercising my rights under the Ontario Human Rights Code, and requesting the employer fulfill its obligations under the duty to accommodate that permits me to remain in the workplace without humiliation or risk of danger. I am already dealing with an external investigation dealing with the unfounded, irresponsible, spiteful and vindictive actions of a
former female co-worker and her unwarranted obsessions. I find your high handed approach and your stated perspective “if I get you to work Nights, then I win” unnerving, and you receive personal gratification by strong arming and humiliating this employee, this is exceptionally disconcerting. . . . (sic)
[99] The grievor testified that he found Ms. Maccarone’s request “offensive.” He
expressed the view that she could not “just throw out abuse,” but needed “to say why
she suspected it.” He alleged that Ms. Maccarone was “bullying” him to “meet her own
needs.” He believed that her request that he seek a medical note a month after the fact
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called into question his integrity and that of his doctor, although he acknowledged in
cross-examination that he had previously produced an “after the fact” medical note
dated August 1, 2011 from Lakeridge Health.
[100] The grievor testified that Ms. Maccarone did not respond to his December 13 e-
mail and that sick pay for November 14 and 15 was “missing” from his pay cheque.
[101] By e-mail to Ms. Tomkinson also dated December 13, 2011, the grievor stated
as follows:
Could you please provide an update on the status of the investigation that I am a
part of. My legal counsel and I have not heard anything further on the matter since about November 11th 2011. . . .
I am also copying to you an email to Ms. Maccarone concerning a suspension and ASMPP issue, as well as a Human Rights matter that is apart of my outstanding investigations. (sic) Commencing with Ms. Tara Jackson’s email in mid January 2011 to November 25th I have repeatedly attempted to address the matters that are at the root cause of my sick-time. . . . My entire sick time for
2011 is based on this outstanding issue. Ms. Maccarone has been in charge for this entire process and has demonstrated a rigidity that is not conducive to any resolution of a complex matter that has considerable liabilities. I would request your involvement in this matter. Although the employer would
have difficulty in arguing innocent absenteeism due to the workplace history; and my willingness to encourage the employer in holding the individuals responsible for that workplace history. (sic) It is well within the powers of the individuals having a fiduciary obligation to cause considerable turmoil in my employment and affect my ability to earn an income.
Although the psychological impact of the whole matter is significant, I am currently impacted the most in regards to my attendance by duty assignments that require the direct observation, and tracking/monitoring of my coworkers as this lends itself to the poisoned work environment, workplace history and the
false statements of staff.
[102] The grievor testified that he received through his lawyers copies of two draft
investigation reports, one relating to his WDHP complaint and one relating to the WDHP
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complaint filed on behalf of M. A December 12, 2011 e-mail from the investigator’s
office to the grievor’s Counsel was entered in evidence in this regard.
[103] The grievor testified that the following day, the investigator’s office electronically
“recalled” both reports, and indicated that a “revised version” would be issued the
following day.
[104] A December 14, 2011 e-mail to the grievor’s lawyer from the investigator was
entered in evidence, referencing attached “WDHP Investigation Reports” dated
December 14, 2011, and advising that “the new date for your submission/comment” was
December 20, 2011.
[105] Despite the reference in that e-mail to “reports,” the grievor’s evidence was that
he only received one draft report from his lawyers at that time, that being the one
relating to his complaint. That draft was in evidence before me. There was no evidence
as to whether the grievor made any inquiries of his lawyer regarding the second draft
report. The forty-nine page draft report that the grievor received the second time bears a
“submission date” of December 14, 2011 and identifies the parties to the complaint as
“H v. Katherine Maccarone and Management of the Central East Correctional Centre.”
The investigator noted therein that the “investigation was initiated to determine whether
or not the Deputy Superintendent of Administration dealt effectively with issues of
alleged ‘ongoing personal harassment’” against the grievor. She described the “central
issues” before her as follows:
1. Do the facts and evidence indicate that H was subjected to discrimination, harassment and a poisoned work (sic) over a sustained period of time (2002-2010) by a Federal Government employee . . . on the prohibited ground of sex or gender . . . ?
2. Do the facts and evidence indicate that H was subjected to discrimination on the prohibited ground of disability. . . ?
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3. Do the facts and evidence indicate that H’s Employer failed to discharge its duty to accommodate . . . ? 4. Do the facts and evidence indicate that the Central East Correctional Centre management failed to take adequate measures to address the discrimination,
harassment and poisoned environment alleged by . . . H . . . ? [106] The investigator stated therein that the investigation was “carried out in . . . an
independent, . . . balanced, fair, impartial” manner. She reported that twelve individuals
were interviewed, and that she relied upon the evidence of the grievor, the respondent
“and witnesses to inform her report.” The report purports to set out evidence given by
the grievor and appears in that regard to reflect his submissions previously delivered to
the investigator. The draft report also sets out evidence attributed to Ms. Maccarone, M
and other “third party witnesses.”
[107] The draft investigation report reflects in part the following comment:
The Respondent Maccarone was asked about a Grievance Settlement in which the Employer and the Complainant’s Union entered. In reply, she said she
believed the 2008 Settlement “resolved all the issues he raised in 2005 to date.” The Respondent further added that, “However, he seems unable to move on from the allegations made against him in 2005. It is still very fresh for him.” [108] The grievor was referred in cross-examination to submissions he subsequently
made in response to the draft investigation reports, where he addressed as follows the
comments attributed to Ms. Maccarone:
The grievance did not resolve the workplace issue or provide corrective action to the defamation, false statement, libel and slander that exists in the workplace concerning H. Unfortunately the risk from false statement continues because the statements have not been corrected.
He further stated in cross-examination that his reference to “false statement” related to
“2005, M, 2010 and M’s witnesses,” and that the “problem with not correcting it” is that it
“taints” his reputation.
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[109] The grievor was asked in cross-examination whether or not he asserted that
members of management defamed him. He stated that he “opposed” a notation in the
2005 investigation report that police had “indicated to Mr. B (Security Officer) that they
would be providing a verbal caution” to the grievor, but testified that it was otherwise
“mostly non-management witnesses who made criminal allegations.” In final argument,
Union Counsel stated that the Union “never suggested that the Employer defamed the
grievor,” but rather that it asserts that the Employer failed to “deal with the defamation
by co-workers and others.”
[110] The grievor was also referred in cross-examination to the following excerpt from
the draft investigation report purporting to record the comments of a Deputy
Superintendent:
With respect to Respondent H’s allegation of poisoned work environment, the witness (Deputy Superintendent of Special Projects) acknowledged that there was graffiti in the washroom depicting him (H) with the name “stalker” written
next to it. The witness contended that pictures of the graffiti were taken by the Operational Manager and removed. The witness concluded, “Unfortunately, there is not much we can do; we can’t put cameras in the washroom.”
The grievor testified in cross-examination that he could not remember when this took
place, that the “word” but not the picture was removed, and that he reported it. Pictures
were taken and a report was filed.
[111] Other excerpts from the report pertaining to the grievor’s complaint to which
Counsel expressly referred in these proceedings are set out as follows:
Witness #3: When asked if she were aware whether or not . . . H allegedly had a history of harassing women in the workplace, she said: “Not specifically, there are always rumours at the jail.” Witness #4: The Witness said H has a history of stalking because it has been
said by those who previously worked at Millbrook that he stalked another female officer. . . .
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Witness #6: The witness said he has heard that . . . H stalked another female officer when they both worked at Millbrook . . . . The witness also acknowledged that in the workplace . . . H is nicknamed “S and HH” and there is graffiti in the washroom about him.
Witness #7: The witness stated that everybody talks about each other and there were rumours that H previously stalked another female, but she does not know who. Witness #9: With respect to graffiti, H submitted a report to Superintendent . . .
on May 25, 2006 in which he identified graffiti in the workplace that allegedly depicted himself. The officer indicated that he had brought this to the attention of Deputy Superintendent… on several occasions, and stated that the nature of the graffiti was similar to that which was prevalent for years at Millbrook . . . . Supt. . . . toured the area with this writer where the graffiti was identified. We discovered
a hand drawn picture of what appeared to be a person’s face & head in the Staff Servery washroom. We also found unidentifiable pen marks on the stainless steel paper towel dispenser. These marks were removed on May 31, 2006. In addition, in the outdoor patio located in the Servery, there were hand drawn images of male body parts inscribed on a picnic table. The table was removed
and replaced with a resin type product. Management was subsequently reminded by Supt. . . . on May 31, 2006 and the undersigned on June 1, 2006, of their obligations to observe and remove graffiti in the workplace. The union president was also advised. H was provided with a letter from Mr. . . . outlining the actions that were taken.
[112] In that same draft, the following exchange with Witness # 9 is recorded as
follows:
H alleged that as a result of his poisoned work environment from the events – such as M’s false and malicious allegations which occurred under the observation and sometimes with the participation of the Employer – contribute to the stress, anxiety and depression and overall mental deterioration for which he is receiving treatment. He states that he has not been provided with
accommodation for his disability. Can you respond to this? Workplace accommodations are managed through the Staff Services Department. Employees who have medical restrictions or disabilities that require an accommodation are required to provide the Employer with medical certificates
to support the need for an accommodation. H had been requested to provide documentation, and has yet to do so. There is no information on file to support that H has a disability.
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[113] The investigator noted in the draft investigation report that “the issues and
concerns that H appears to be complaining about are stale dated, not ongoing and have
been resolved through the settlement he attained at the GSB in July 2008.”
[114] Conclusions set out in the draft report regarding the grievor’s complaint included
the following:
Discrimination, Harassment and Poisoned Environment
. . .
Since the resolution of . . . H’s issues and concerns on July 16, 2008, and
although he (H) alleged ongoing personal harassment (2005-2010), the Investigator was unable to find . . . any nexus between the issues and concerns dating back to the period 2005 and 2010 or M’s contribution to . . . H’s current alleged issues and concerns in the workplace. In fact, the issues and concerns that . . . H appears to be complaining about are stale dated, not ongoing, and
have been resolved through . . . the GSB in July 2008. Therefore, based on the totality of the facts and evidence. . . ., there is no evidence to support that M engaged in discrimination and harassment against H or poisoned his work environment on the ground of sex or gender . . . . . . .
Discrimination on the Ground of Disability . . . The Accommodation Process and Breach of Duty to Accommodate . . . Therefore, the issues of whether or not . . . H has a disability and limitations for
which accommodation is required and whether he cannot perform the night shift duties as a CO remain outstanding. Management’s Response to Discrimination, Harassment and Poisoned Environment
. . . Therefore the evidence indicates that the management of the CECC appeared to have employed the best measures to address the issues and concerns between
. . . H and M between 2005 to present . . . . As such, the Investigator is unable to conclude that management . . . failed to adequately address the issues and
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concerns of workplace discrimination, harassment and poisoned work environment based on sex and gender. Conclusion
. . . Specifically, this independent investigation process was concerned about issues of discrimination, harassment, poisoned work environment, and failure to accommodate….
. . . (I)t is the investigator’s conclusion there is clear objectively substantiated
evidence that: 1. Respondent Maccarone and management . . did not engage in discriminatory conduct or harassed . . . H on the . . . ground of sex or gender over a sustained period of time (2008 to present) or that the Federal Government
employee engaged in discriminatory conduct against him for the aforementioned period which can be defined as harassment or poisoned environment. . . . . (sic) 2. The issues complained about by . . . H . . . regarding sex or gender
discrimination and harassment are stale dated and were resolved via a grievance settlement at the Grievance Settlement Board in July 2008. Since that time, there is no evidence to indicate that the Federal Government employee continued to engage in discrimination and harassment against him.
3. The . . . Management . . . took adequate measures over a sustained period of time to deal with the issues and concerns between . . . H and the Federal Government employee . . . . 4. There is insufficient evidence to indicate that . . . H’s Employer subjected him
to workplace discrimination on the . . . ground of disability by failing to discharge its duty to accommodate . . . . In fact, . . . H has not, to date, provided the Employer with the requisite medical information to substantiate that he has an ongoing disability and limitations for which workplace accommodation . . . is required.
While in this case, the Investigator does not negate the narratives of . . . H, there is insufficient facts and evidence upon which to substantiate his belief of discrimination, ongoing personal harassment, poisoned work environment or a breach of the Employer’s duty to accommodate . . . .
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[115] The grievor testified that he responded in writing to both draft reports, “attacking
them line by line.” His sixteen page submission was admitted in evidence and he
attested to the truth of its content. The grievor took issue therein with what he
characterized as the denial of the opportunity to challenge witness statements. He
raised process concerns pertaining to the investigation, including issues relating to time
lines. He challenged the reliability of witness accounts as reflected in the draft. In doing
so, he addressed matters dating back to the 1990’s, noting that his reputation had been
“impeccable” prior to the “false statements” in 1998. He commented on matters relating
to the 2005 investigation and its outcome, and on the 2009 and 2010 alleged incidents
giving rise to the 2009 and 2010 grievances decided by the 2014 interim decision. He
denied that he is or was a stalker.
[116] The grievor noted in his response to the draft investigation reports that what he
viewed as the Employer’s failure to adequately resolve matters in 2005 “precipitated the
current complaints.” He suggested that “best measures would have been to complete
the investigation in 2005 and provide disclosure identifying all personnel that
participated in the false statement” against him. He stated that he had “the right to be
cleared of the false statements in 2005.” He asserted that “the risk for false statement
continues because the statements have not been corrected” and that “the false
statements must be set straight” as they are “well established” at CECC and affect how
his actions are “perceived.” The grievor suggested that “the damage caused by
defamation . . . continues with an ongoing effect in the workplace.” He stated that “any
person who has been subjected to the false statement poses an enhanced risk” and
that he wanted the Employer to “follow natural laws of justice and hold their employees
who made false statements accountable.” He expressed the view that the 2008
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decision of the Board “did not resolve the workplace issue or provide corrective action to
the defamation, false statement, libel and slander that exists in the workplace.” He
stated that the Employer “constantly” refers to his 2006 grievance, but that “no
determination was made and the matter was denied a GSB hearing.” He further
commented:
no (sic) one has ever been accountable for the establishment and conveyance of defamation, false statement, libel and slander, without which the complaints would not have resulted. The matter remains outstanding. [117] The grievor also addressed in his response to the draft reports the investigator’s
conclusion that there was “insufficient evidence” to substantiate his belief of “ongoing
personal harassment, poisoned work environment.” He suggested that a number of
witnesses “identified and participated in the use of defamation.” He noted that GB was
identified during the 2005 investigation as having made false statements in the 1990’s,
and that false statements were “deeply entrenched in the workplace.” He suggested
that the investigator noted “false statement” in the workplace, and that witnesses used
“the terminology of stalker/stalking.” He noted in particular that the investigator
recorded a reference to “S and HH” nicknames and suggested that a witness thereby
“identified the use of defamation and false statement” poisoning his work environment.
He commented that statements made by M and “her witnesses may not meet the
requirements of the WDHP,” but that “the new witness statements are fresh.” The
grievor commented as follows:
There has to be a Manner (sic) of addressing the issue of false statement by ministry personnel against other personnel with false statement the grievance process does not correct the issue and the matter remains outstanding and now even more participants in the use of defamation and false statement have been substantiated.
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[118] The grievor further commented in his response to the draft reports on the
Employer’s alleged failure to fulfill its duty to accommodate him. He noted that an EHIF
submitted at the beginning of November 2011 had not yet been discussed. He stated
that the accommodation to which he claimed entitlement was “based on stress, anxiety,
depression around the risk, defamation, false statement, libel and slander pose,” as “the
scope of false statement . . . affect(s) how my actions are perceived by my fellow
staff.”
[119] The grievor also critiqued the draft investigation reports while giving evidence in
these proceedings. He testified that he was upset that he was allegedly described as a
stalker in 1998, that the Employer allegedly accused him of stalking in 2005, and that
“false statements” have not been corrected. He believed that the investigator in 2011
relied upon attacks on his character without providing him with the opportunity to
challenge statements. He criticized that witnesses in 2011 stated that they had heard
rumours that he had stalked or that he was a stalker, and that the investigator
referenced such statements in the report without ascertaining if such statements were
true. He questioned the reliability of witness accounts, noting by way of example that
he believed one of the witnesses who purported to comment on an incident taking place
on day shift to be someone who worked permanent nights. He noted that the facility
was monitored and that cameras could have been used to verify facts. He suggested
that witnesses contradicted themselves, commenting for example that he was a “bully,”
but also a “nice guy.” He stated that the investigator referenced the 2005 “settlement”
but did not permit him to challenge it.
[120] The grievor was cross-examined as to his understanding of the timeframe of the
events described in the investigation reports. He agreed that other than the
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accommodation issues pertaining to Ms. Maccarone, and other than the statements set
out in the report, he understood that the events described therein pre-dated M’s 2010
departure from the workplace, and in some instances, related to pre-2005 events.
[121] The grievor testified that his response to both draft reports was submitted to the
investigator before the deadline imposed for doing so. By December 20, 2011 e-mail, a
representative of the investigator’s office acknowledged receipt of comments from the
grievor’s legal counsel and advised that “we will now review the documents.”
[122] The grievor understood that his lawyers received the final report with respect to
M’s complaint on January 11, 2012. He did not ask his lawyers if they received the final
report with respect to his complaint and he only received it during these proceedings.
Both final reports were entered in evidence and bear a “submission date” of December
19, 2011. The report pertaining to M’s complaint that the grievor received through his
legal counsel in January 2012 accompanied a letter dated December 21, 2011 from the
investigator referencing “Draft WDHP Investigation Report” but stating that a “final
report” was enclosed.
[123] The grievor’s review of the final report regarding M’s complaint led him to
conclude that it was unchanged from the draft upon which he had commented. He
testified as well that he reviewed the final report with respect to his complaint received
during the course of these proceedings and noted no changes therein from the draft
report.
[124] The grievor believed that the investigation reports were finalized and issued to
the Employer before his December 20 comments were received and considered by the
investigator. He so concluded given the December 19 submission dates noted on the
reports, the fact that his December 20 submissions are not referenced in the final report,
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and because what he suggested were “glaring errors” in the drafts remained
uncorrected. He acknowledged in cross-examination that he had no information as to
when the final reports were provided to the Employer and had “no idea of what
happened behind the scenes.”
[125] While the grievor testified that he expected that M was likely provided with a copy
of the final report, he acknowledged that he did not know who in fact received copies of
the reports.
[126] The investigator concluded in the final reports that the grievor “engaged in
discrimination and harassment against M on the ground of sex or gender…” and that
the grievor’s complaint was not substantiated.
[127] The grievor criticized that the investigator relied upon pre-2005 events in the
reports, but treated his pre-2005 evidence as “stale dated.” He emphasized that
although the investigator referenced the 2005 investigation and alleged resolution
flowing from that, he denied that there was such resolution and criticized that he was
not permitted to challenge the 2005 process and its conclusions. He suggested that but
for the Employer “blocking” him at the time, he would have “wrapped it up tight.”
[128] He testified that the investigator failed to decide what he believed to be a
“straightforward” issue regarding his EHIF and request for accommodation.
[129] The grievor did not disagree with Employer Counsel who suggested in cross-
examination that the investigator made no finding that he was a stalker. He believed,
however, that a reasonable person reading the reports would conclude that he was a
stalker, and that the investigator failed to determine that this was not true. He
suggested that the investigator repeated rumours in the report regarding allegations of
stalking in the 1990’s and then with respect to M, and that he ended up “chasing
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ghosts.” He was of the view that others were allowed to attack him, but that he was not
permitted to defend himself.
[130] The grievor testified that the investigation reports themselves “become the
allegations,” and were defamatory documents, suggesting that the investigator repeated
false statements that he was a stalker and that he and M had an affair. He denied that
he is/was a stalker and that he and M were at any time anything more than friends, and
that the investigator defamed him. He suggested that she “negligently” failed to
determine that the statements recorded in the reports were true, although it was “easy
to see that witnesses were just repeating rumours they have heard.” He viewed the
report as the “continuation of the Employer spreading false statements.” In his opinion,
the Employer was “responsible for anything that came out of anyone’s mouth,” and the
reports constitute libel and slander for which the Employer bears responsibility.
[131] Having received the investigation report regarding M’s complaint in January
2012, the grievor described that he waited for the “axe to fall” and to learn what action
the Employer would take. He testified that this caused “extraordinary stress.” He
recalled that Mr. Bell advised him in May or June 2012 that “they were trying to expedite
the conclusion to the matter.”
[132] The grievor was asked about his health between January and October 2012. He
described that he experienced at the time a “heavy feeling” and difficulty focussing, and
that he did not enjoy life. He indicated that “mental health was mild some days,” and
other days “wipes you out.” He attributed this to delay which he suggested continued
even as of the time of these proceedings, and stated that this affected his attendance.
He recalled that his wife was concerned about him at the time, and that this resulted in a
2012 visit to Lakeridge Health. He testified that he was at that time “cycling on and off”
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medication. He gave evidence that he received no treatment “suggestions” at
Lakeridge in 2012 as he was already seeing a doctor for depression that was “ramping
up.” The grievor gave evidence as well that after his 2012 visit to Lakeridge, he “moved
through stress and severe depression in the EAP Program.” In cross-examination,
however, the grievor accepted the accuracy of the 2011 date noted in Lakeridge
records. The only medical record before me relating to 2012 is a notation in the Whitby
Medical Centre record reflecting that the grievor was seen on February 12 for “Rx
repeat.”
[133] The grievor testified that he attended a meeting with the Employer on October
19, 2012 regarding the grievances filed shortly thereafter on October 31, 2012.
[134] On October 30, 2012, he received a letter dated October 17, 2012 from Mr.
Stephen Small, Assistant Deputy Minister, Institutional Services. The grievor suggested
when testifying that the letter may have been backdated.
[135] Mr. Small’s letter appears to be copied to Mr. Polya, Superintendent, CECC, and
to Ms. B. Rodriguez, Advisor, WDHP Section, and it states as follows:
I have received the Investigator’s report, which is the result of a third-party Workplace Discrimination and Harassment Prevention (WDHP) Policy Investigation initiated to address your allegations against Ms. Kathy Maccarone, M and the management initiated complaint filed against you.
The investigator concludes that, on a balance of probabilities, the allegations that Ms. Maccarone and M discriminated against and harassed you on the prohibited grounds of sex or disability, are unsubstantiated. I accept the investigator’s findings regarding these allegations.
The investigator also concludes that the allegation filed against you that you discriminated against, harassed and poisoned the work environment of M are substantiated. I do not accept the investigator’s findings regarding these allegations. The report does not provide sufficient evidence and this conclusion was made without proper examination and weighing of evidence and analysis.
Further, the investigator did not address the allegations of reprisal you raised against Ms. Kathy Maccarone in your submissions to the final investigation report.
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Based on the outcome of the investigation, you will be contacted by the Superintendent of the Central East Correctional Centre to discuss next steps. . . .
[136] The grievor criticized Mr. Small’s response. He testified that Mr. Small cleared
Ms. Maccarone of discrimination and harassment, but that this was not his complaint.
He asserted that his complaint was with respect to the Employer’s failure to follow the
EHIF, and that Mr. Small failed to make a decision on allegations regarding the EHIF
and reprisal. He testified as well that Mr. Small decided that one report was “balanced”
and that one was not, “depending whether he likes the answers.” He stated that it was
not open to the Employer to “just say” that the investigation was flawed, but that it was
required to “deal with it.”
[137] The grievor testified that he filed the eight grievances dated October 31, 2012
because matters “were dragging on too long” and were “trying” his “patience.”
[138] The grievor gave post-grievance evidence that he spoke to Mr. Polya in March
2013 regarding attendance. He recalled that Mr. Polya informed him at that time that he
had no knowledge of Mr. Small’s October 2012 letter, and that he had never seen the
letter or the investigation reports.
[139] The grievor was asked in cross-examination about his dissatisfaction with an
investigation which was followed by the Employer’s determination that allegations
against him were not substantiated. He suggested that the investigation was “flawed”
and “corrupt” and that Mr. Small could have ordered a new investigation or could have
released information to him so that he could “fight it out.” He testified that the
investigator wrongly decided that performance of his duties constituted discrimination
and that she also identified false statement in 2011. He stated that the Employer then
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did “nothing about it.” He suggested that the Employer has been accusing him of
criminal behaviour since 1998, and that it either needs to prove the allegations against
him true, or let him “deal with it.”
[140] In examination in chief, Union Counsel sought, without objection, the grievor’s
agreement that the “gravamen” of his complaint was that no corrective action was
taken to “fix the reports,” that he wanted to challenge the rumours, and that “there are
current examples still affecting your workplace.” The grievor responded that “until there
is a decision,” and until he has the opportunity to face his “accusers,” to have his “day in
Court” and to hold his “accusers” accountable, “it is always there.” He suggested that
the final reports here, along with the 2005 report, are “formal notification” to the
Employer that he is “under attack through defamation, libel and slander.” He testified
that he was “prepared to deal with this” in 2005 when two people were involved, but that
in 2010 more people were involved. The Employer, he suggested, “failed to prove the
false statements true,” leaving them as a “destructive force to my character.”
[141] Union Counsel invited the grievor to comment on what he hopes to achieve
through these proceedings. The grievor explained that he had everything he “needed to
go up against false statement” in 2005, but that the Employer “blocked” him. He
testified that he seeks a decision that the statements made against him are false. He
stated that if the final reports are “left to exist,” they will “obtain full legitimacy” as people
were permitted to make “defamatory statements” with nothing ultimately “corrected.”
He also suggested that the Employer “keeps secrets files accusing” him of “criminal
activity,” and that he had not been afforded the opportunity to defend himself. He
claimed that the Employer “messed this up” and that the “mess has to be cleared up.”
SUMMARY OF THE PARTIES’ SUBMISSIONS
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[142] The Union prefaced its final submissions noting that “the story that is behind
almost all of this goes back” to the workplace relationship between the grievor and M.
Counsel suggested that there are “two sets” of factual issues before me. One of these
pertains to the events that took place while the grievor and M worked together that the
grievor perceived to be sexual harassment by M. The other, and by far the more
important in the Union’s view, relates to alleged defamation of the grievor not only by M
but by others who called him a stalker. The “key question” that arises out of both sets of
factual issues is, in the Union’s submission, how did the Employer respond.
[143] Counsel suggested that although it is never a “good idea” to refer to someone as a
stalker in the workplace, such label is particularly damaging in the Corrections
workplace environment where trust among colleagues is of paramount importance. He
noted that the Employer called no evidence challenging the grievor’s assertion that he is
not a stalker but had been so characterized in the workplace. Counsel asked that I
draw a negative inference from the Employer’s failure to do so, and find that the grievor
was not a stalker, that he was called a stalker, that this damaged his reputation, and
that he was defamed.
[144] The Union agreed, however, that the issue raised by the grievances before me is
the “Employer’s conduct or lack of conduct.” In its submission, the Employer either
thought it was dealing only with issues of sexual harassment, or it focused primarily on
such issues, and failed to address or gave “short shrift” to “continuing issues” of
workplace defamation “presented” by the grievor. The Union acknowledged that the
Board’s 2008 decision closed “a chapter,” although it suggested that such history
remains important background. It argued in chief, however, that the “gravamen” of the
grievances before me is the Employer’s alleged failure to appropriately respond to that
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which it submits was “presented” by the grievor – “continued issues of defamation”
which followed the Board’s 2008 decision.
[145] The Union argued that the grievor has a right to a harassment-free workplace
and that the Employer’s alleged failure to respond appropriately to his experience of
“current” workplace defamation at the time violated his rights. The Union relied upon
article 9 of the collective agreement.
[146] The Union referred as well to article 3.3 of the parties’ later 2012-2014 collective
agreement reflecting their shared commitment to “a workplace free from workplace
harassment.” Counsel suggested that although that language is not found in the
collective agreement under which the present grievances arose, the “concept” was
already “recognized.”
[147] The Union also relied upon the OHSA, and suggested that as a “work related
statute,” its provisions are incorporated in the collective agreement. The Union’s
position in final argument was that the WDHP Policy mandated by the statute is
incorporated into the collective agreement and is a “foundational” document which
requires the Employer to take all reasonable steps to prevent and respond to workplace
harassment including “defamatory gossip.”
[148] The Union argued as well that a right to freedom from tortious conduct is an
“implied part of the collective agreement.”
[149] Counsel addressed the June 2011 grievance. He noted the evidence that M filed
a WDHP complaint in October 2010, and that the grievor was first advised of this in
January 2011. By June 2011, the Employer had taken no steps to proceed with the
investigation. The Union reiterated the position articulated in opening statements that
such delay was in breach of the WDHP, and asserted that it thus breached the
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collective agreement, including “arguably” articles 3 and 9. In final argument, the Union
further suggested that between October 2010 and June 2011, the Employer failed to
“deal with the atmosphere hanging over the grievor” although the grievor was “beating
the drums for the defamation issue” and that the June 2011 grievance “picks up the
story” from the time of the Board’s 2008 decision.
[150] The Union addressed the December 2011 grievances. It suggested that the
evidence established that the grievor was on vacation November 12 and 13, 2011, sick
on November 14 and 15, and not scheduled to work November 16 and 17. He returned
to work on November 18, thus having been absent due to illness for less than five days.
Counsel argued that it was “awkward” for the grievor to work in a role requiring
monitoring of co-workers because he “feared that they may not have a good view of
him,” and that the Employer’s alleged failure to deal with the grievor’s experience of
defamation posed danger to his health. The Union noted that the grievor had been
accommodated by the Employer up to January 2011 with “no night shifts,” and argued
that this was in recognition of health problems that the Employer “had every reason to
expect were the product of a campaign against him.” The Union suggested that the
evidence established that this accommodation was reinstated in 2013. Counsel argued
that as of November 18, 2011, there had been no objection by the Employer to
accommodating the grievor’s restrictions, and yet it refused to do so that night despite
the availability of suitable work when the grievor reiterated that which he believed was
required. The Union asserted that there was no evidence before me that the Employer
in any way “evaluated” the grievor’s claim for accommodation, requested medical
clarification, or claimed undue hardship before refusing to provide the requested and
available accommodation. In these circumstances, the Union asked me to find that the
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Employer breached its duty to accommodate the grievor’s restrictions which it argued
flow from the Employer’s alleged failure to deal with workplace defamation.
[151] The Union argued as well that the Employer’s request in December 2011 that the
grievor provide medical notes for November 14 and 15 was in violation of article 44.10
of the collective agreement. In Counsel’s submission, there was no evidence before me
that the Employer alleged abuse of sick leave at the relevant time, nor that there was
any reasonable basis for doing so. The Union argued that in the circumstances, the
Employer was not entitled to require the submission of a medical note and that it
breached the collective agreement in doing so.
[152] The Union suggested that the October 2012 grievances “pick up the story” from
the June 2011 grievance. Counsel argued that the WDHP Policy required the Employer
to take reasonable and timely steps to address “poisonous” and defamatory statements
in the workplace. In the Union’s submission, however, the investigation process here
was so “fundamentally flawed” that rather than solving problems, it became part of the
problem. The Union acknowledged that the investigation itself “may” in a “limited way”
have been completed and the report submitted within ninety days in accordance with
the WDHP Policy, but suggested that “time limits” set out in the policy and allegedly
incorporated into the collective agreement were not otherwise observed.
[153] The Union noted that the grievor was only “interviewed” once, and suggested
that this was a meaningless exercise as he was neither advised of the allegations
against him nor offered an opportunity to respond at that time. Counsel referred as well
to the evidence that the investigator advised that she relied on the Employer for
substantial business as an external investigator. Counsel acknowledged that this is not
“the biggest point” and “may be part of the reality,” but suggested that the Employer
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thereby failed to comply with the “principles” of the WDHP Policy and the collective
agreement.
[154] The Union criticized a process which it asserted did not allow the grievor to
appropriately respond to allegations against him, and did not take into account
comments he was permitted to make. The opportunity to comment came only at the
end of the investigation when the grievor was provided initially with two draft reports
which were recalled, with only one draft re-issued. Counsel acknowledged privacy
considerations, but noted that the grievor was not advised who the witnesses were
quoted in the report, hindering his ability to comment on the weight to be given to their
evidence.
[155] The Union emphasized that the investigator was “exposed” to M’s witnesses
during the investigation process, but never interviewed the grievor. In the Union’s
submission, this is particularly problematic where it suggested that the only inference
properly drawn from the evidence is that the investigator did not then consider even the
grievor’s written response to the draft reports before reaching her conclusions and
forwarding final reports to the Employer. Counsel acknowledged the grievor’s
understanding that his lawyer received one of the final reports only in January 2012. He
asked me to note, however, the submission dates on the final reports, the absence of
any reference therein to the grievor’s response to the drafts, the fact that the final
reports were identical to the drafts, and the fact that “corrections” identified by the
grievor in his submissions were not incorporated into the final reports. In the Union’s
submission, in the absence of evidence to the contrary by the Employer, I should infer
that the grievor’s comments were not considered by the investigator before issuing her
final reports.
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[156] The Union argued that what is most critical here, however, is the Employer’s
alleged failure to investigate and appropriately respond to what it characterized as the
grievor’s complaint of “continuing to this day experience in the workplace as a victim of
defamation.” Counsel suggested that the investigator in her report confused the issues
of alleged harassment by M, the “disability issue,” and the issue of fundamental
importance – that being an allegation of harassment relating to stalking.
[157] The Union was clear that it does not allege that management defamed the
grievor. Counsel stated that the Union asks me to find, however, that the Employer
failed to respond as required when co-workers did so.
[158] The Union acknowledged that the investigator referenced the “stalking” and
“poisoned work environment issues,” but suggested that she did not “get” the latter
issue “quite right.” More fundamentally, however, the Union’s position was that the
investigator either failed to inquire into these matters, or if she did so, “dealt with it
badly,” so that there was no serious investigation of the grievor’s “primary” complaint –
that he was a victim of current workplace defamation.
[159] Counsel also reviewed witness accounts recorded by the investigator, and
suggested that these included defamatory statements about the grievor. He argued that
defamatory statements were then published in a report provided to the Employer,
without any investigation as to the truth of the allegedly defamatory statements.
[160] In the Union’s submission, however, the “headline of this award” should be found
in the investigator’s record of the following comments attributed to a Deputy
Superintendent:
With respect to Respondent H’s allegation of poisoned work environment,
the witness acknowledged that there was graffiti in the washroom depicting him (H) with the name “stalker” written next to it. The witness contended that pictures of the graffiti were taken by the Operational Manager and
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removed. The witness concluded, “Unfortunately, there is not much we can do: we can’t put cameras in the washroom.” The Union suggested that such comment underscores the Employer’s casual attitude
toward issues of workplace harassment and defamation.
[161] Counsel referred to excerpts from the investigator’s final report regarding the
grievor’s complaint, including comments such as the following attributed by the
investigator to witnesses:
The witness said he has heard that . . . H stalked another female officer when they both worked at Millbrook. . . .
[162] In the Union’s submission, in addition to what it characterized as the grievor’s
presentation of his experience as a victim of current workplace defamation, the final
investigation reports put the Employer on notice that he was, as of the time of the
investigation, continuing to experience “persistent” and “ongoing” workplace defamation.
Union Counsel noted that statements recorded by the investigator were current as of
the time, and were then published in a report delivered to the Employer in 2012. It was
clear, in the Union’s submission, that it was not historical issues of “what was said in
2003 and 2005” that were recorded in the investigation report, but what was being said
in 2011 and 2012. In these circumstances, the Union argued, the Employer was
obliged to act and failed to do so.
[163] The Union criticized Mr. Small’s October 2012 response to the grievor. It argued
that because the investigator allegedly failed to appreciate the issue of continued and
current workplace defamation raised by the grievor, this then resulted in confusion on
Mr. Small’s part too. Counsel suggested that Mr. Small “misread” the report and
thought he was dealing with sexual harassment allegations. In the Union’s submission,
Mr. Small failed to appreciate what was “primarily” in issue – that being the grievor’s
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complaint of “continuing” and “persistent” workplace defamation and the Employer’s
alleged failure to respond to it.
[164] The Union criticized as well that Mr. Small failed to outline any analysis or
assessment of witness accounts. Counsel noted that he did not determine that the
grievor did not engage in the misconduct alleged, but merely found that the
investigator’s report was not “persuasive.” The Union also suggested that there is
“some reason” in the circumstances to suggest that Mr. Small’s October 2012 letter was
back dated, and that this “undermines the Employer’s bona fides.”
[165] Counsel referred in particular to the account of Witness # 6 recorded in the report
pertaining to the grievor’s complaint, in which the witness is noted to have stated that
the grievor was currently in the workplace nicknamed “S” and “HH” and was currently
the target of washroom graffiti. The Union criticized that there was no inquiry or
investigation as to whether that was true.
[166] The Union argued that although Mr. Small recognized that the reports produced
by the investigator were flawed, the Employer did nothing to address this. Counsel
noted the grievor’s evidence that there was no follow up communication with him, and
that despite Mr. Small’s reference to “next steps,” there were none. Mr. Polya in fact
advised him in March 2013 that he knew nothing about Mr. Small’s October 2012 letter.
[167] The Union asked me to find that the Employer failed to respond appropriately to
the grievor’s experience as a victim of current workplace defamation and in fact
displayed what Counsel described as an “institutional mindset that fails to take
harassment complaints seriously.” Counsel referred to what he characterized as the
grievor’s evidence of “his experience in the workplace as a victim of defamation” that
“continues to this day.” The Union argued that the grievor is entitled to a harassment-
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free environment, including freedom from defamation of his character in the workplace,
and that the Employer treated workplace defamation as nothing more than “casual
gossip” warranting no response. Counsel urged me to conclude that the grievor was
defamed, that the Employer had an obligation to seriously investigate and respond to
this, and failed to do so.
[168] Counsel urged me in all of the circumstances to award general damages,
punitive damages, and damages for pain and suffering. The Union also reserved its
right to seek special damages, and Counsel both agreed that I would retain jurisdiction
to address and determine any such claim that the Union may seek to advance.
[169] The Union referred to a number of authorities which it suggested set out the
factors to be considered and the analysis to be undertaken in determining remedy. It
emphasized the importance of considering the impact on the grievor of the Employer’s
alleged failure to fulfill its obligations, and asked me to conclude that this “aggravated
the grievor’s health.” Counsel suggested that the Employer’s alleged failure to address
the grievor’s reports of “ongoing taunting and humiliation” caused him significant injury.
While the Union accepted that it was not open to the grievor to give evidence “going
beyond” an account of his symptoms, it urged me to accept his testimony that his
mental health was damaged by virtue of the Employer’s alleged failure to act. Counsel
argued that it is more than “plausible” that someone “repeatedly called a stalker” would
suffer pain, humiliation and loss of dignity.
[170] While the Union accepted that the grievor cannot offer diagnostic opinions, it
suggested that his evidence regarding causal effect of alleged Employer breaches “was
what it was,” and should be considered. Counsel asserted that the Employer did not
challenge the grievor’s evidence in cross-examination, and that his account must
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therefore be accepted. The Union acknowledged that the grievor sought little in the way
of medical attention during the relevant timeframe, and that it called no medical
evidence. It suggested that both Board jurisprudence and “policy” are clear that it was
not necessary to do so in the present circumstances. It relied in particular upon the
Board’s decision in OPSEU (Pereira et al.) and Ontario (Ministry of Community Safety
and Correctional Services), GSB # 2013-0016 et al., May 13, 2016 (Harris).
[171] The Union impressed upon me the need to order damages that will, to the extent
that a monetary award can do so, make the grievor whole and compensate him for the
ongoing humiliation, loss of dignity and self-respect, and hurt feelings which it asserts
he has suffered. Counsel suggested that the evidence before me establishes the
Employer’s failure to deal with “ongoing” defamation, as opposed to a “one off” situation
and that this must be reflected in the damages awarded.
[172] The Union asked me to order damages at a level that “gets someone’s attention
in government.” Counsel impressed upon me the importance of “denouncing the
breach” or what he characterized as past negligence on the Employer’s part, of
vindicating the grievor’s rights given the Employer’s “egregious breach” of its
responsibilities, and of deterring the Employer from future negligence.
[173] In addition to the decision in Pereira , supra, referenced above, the Union relied
upon the following authorities: Tort Law, (4th ed.), 2008, Lewis Klar, c. 19, page
reference not included; Canadian Labour Arbitration, Brown & Beatty, section 3:5120;
Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; OPSEU (Louis) and
Ontario (Ministry of Transportation), GSB # 2008-3753, June 3, 2014 (Harris); OPSEU
(Ranger) and Ontario (Ministry of Community Safety and Correctional Services), GSB #
2002-2375 et al., July 24, 2013 (Leighton); OPSEU (Hyland) and Ontario (Ministry of
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Community Safety and Correctional Services), GSB # 2009-2699 et al., January 15,
2014 (Petryshen); ADGA Group Consultants Inc. v. Lane et al. (2008), 91 O.R. (3d) 649
(Div. Ct.); Arunachalam v. Best Buy Canada, 2010 HRTO 1880; Payette v. Alarm Guard
Security Service, 2011 HRTO 109; Sears v. Honda of Canada Mfg., 2014 HRTO 45;
Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440; and Greater
Toronto Airports Authority v. P.S.A.C., Loc. 0004 (2010), 191 L.A.C. (4th) 277 (Shime).
[174] The Employer in response acknowledged and echoed the Union’s observation
that “all of this goes back to” the grievor’s initial workplace relationship with M, and in its
submission, to alleged issues from the 1990’s involving another co-worker. The
Employer stated that the Union bears the onus of establishing that the Employer failed
to appropriately investigate and/or respond to allegations of a poisoned work
environment and defamation raised at or around the time that the 2011 and 2012
grievances were filed, and it argued that the Union “did not come close” to meeting its
onus.
[175] Employer Counsel urged me to consider carefully the issues raised by the 2011
and 2012 grievances before me, and to note the “temporal aspect” of the allegations
giving rise to those grievances. Further, Counsel impressed upon me the importance of
recognizing what issues were “attached” to the 2006 grievance decided in 2008 on a
without prejudice basis in accordance with the parties’ agreement, and to the 2009 and
2010 grievances decided by the 2014 interim decision. He suggested that what
permeates the grievor’s position throughout these proceedings is an inability to accept
that the matters before the Board in 2008 have been determined.
[176] The Employer took issue with the Union’s request in final argument that I find that
the grievor was defamed in the workplace. Counsel was clear that neither he nor the
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Employer suggest that the grievor was or is a stalker. He argued, however, that there
was no evidence that would permit me to conclude that the grievor was the victim of
workplace defamation at times relevant to the grievances before me. In the Employer’s
further submission, whether or not the grievor was defamed is not an issue arising from
the grievances. The Employer noted that the Union was clear throughout these
proceedings that it challenged the adequacy of the Employer’s response in all of the
circumstances, and sought a determination that the Employer failed to comply with its
obligations. Counsel pointed out that notice to M was expressly addressed at the
beginning of this hearing, and that the Union was clear at that time that it would seek no
determination adverse to M’s interests. In the Employer’s submission, whether or not
co-workers defamed the grievor is not an issue raised by the grievances and is not a
question that I can determine.
[177] The Employer disputed the Union’s assertion that it failed to appropriately
investigate or respond to allegations that the grievor was or is a victim of current
workplace defamation. While Counsel noted that Mr. Small accepted in October 2012
that the investigation process was in some respects flawed, the Employer contested
that certain “flaws” alleged by the Union were proven. The Employer suggested in
particular that although the grievor questioned whether his December 2011 submissions
were considered by the investigator before issuing the final investigation reports, there
was no evidence before me supporting his speculation in this regard. The Employer
noted as well that although the grievor later alleged bias on the part of the investigator,
there was no evidence that he or his legal counsel saw fit to raise that concern in a
timely manner.
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[178] Ultimately, however, in the Employer’s submission, the question before me is not
whether the grievor approved of the investigation process, or even for that matter,
whether it was or was not well conducted. The Employer emphasized that the issue to
be decided here is whether the grievor’s contractual rights were violated. It is therefore
of critical importance, in the Employer’s submission, to recognize that whether or not
there were flaws in the investigation process, the Employer did not accept the
investigator’s conclusion that he had discriminated against and/or harassed M, and took
no action against him which engaged his contractual rights.
[179] The Employer acknowledged delays in the investigation process, and admitted
that “it could have been better.” It reiterated, however, the position advanced in opening
statements that the WDHP Policy does not form part of the collective agreement. In its
submission, absent “a hook” in the collective agreement, nonadherence with the policy,
even if proven, does not in and of itself amount to a contractual breach. The Employer
argued that the jurisprudence it relies upon amply supports its position, and that the
Union produced no authority to the contrary.
[180] The Employer acknowledged that how it responded to the circumstances before
it, and specifically to the investigation reports, is a “major issue” raised by the
grievances. Despite the Union’s assertion that the grievor gave evidence of a
“continuing experience” of defamation “up to this day,” the Employer argued that there
was in fact no such evidence before me and indeed nothing in even the Union’s
particulars suggesting that the grievor experienced workplace defamation or a poisoned
work environment as of the time that the 2011 or 2012 grievances, or even the 2009
and 2010 grievances dismissed by the interim decision, were filed.
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[181] The Employer emphasized as well that there is no allegation before me that
management engaged in propagating defamatory rumours about the grievor.
[182] The Employer did not suggest that “there were never workplace disputes”
between the grievor and M. It accepted that there was a “series of unfortunate events”
culminating in the Board’s 2008 decision.
[183] Counsel acknowledged that individuals interviewed by the WDHP investigator in
late 2011 communicated recollections and beliefs regarding these historical events, and
that such statements were recorded in a report produced by the investigator and
provided to the Employer. The Employer denied that the investigation reports
constituted defamation of the grievor. Statements communicated to the investigator and
reflected in reports provided to the Employer were, in Counsel’s submission, protected
by qualified privilege.
[184] The Employer argued as well that the fact that witnesses held beliefs regarding
the past and communicated their recollections regarding historical events to the
investigator did not in these circumstances give rise to “new workplace events that the
Employer was duty bound to investigate.” Although the grievor disputed the truth of
statements reported to and recorded by the investigator, this did not give rise to
Employer liability for distribution “within reason” of the final investigation reports.
Further, in the Employer’s submission, the fact that the grievor remains to this day
dissatisfied with the 2005 investigation and the 2008 med-arb process to which the
parties agreed, does not permit him under the guise of 2011 and 2012 grievances to
revisit issues of the past that have already been dealt with.
[185] Counsel argued that there was nothing in the 2012 investigation reports that
would “tell the Employer that there are new issues not already dealt with.” He asked me
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to note in particular the investigator’s comments included in the draft report pertaining to
the grievor’s complaint:
Since the resolution of . . . H’s issues and concerns on July 16, 2008, and
although he (H) alleged ongoing personal harassment (2005-2010), the Investigator was unable to find . . . any nexus between the issues and concerns dating back to . . . 2005 and 2010 or M’s contribution to M’s current alleged issues and concerns. In fact, the issues and concerns that . . . H appears to be complaining about are stale dated, not ongoing and
have been resolved . . . at the GSB in July 2008. It is most notable in the Employer’s submission, that although the grievor went to some
trouble to “pick apart” the draft reports provided to him for comment, he did not take
issue with the investigator’s conclusion that the matters raised were “stale dated.”
Rather, the Employer suggested, the grievor merely sought to “set the record straight”
with respect to the pre-2005 events. The Employer argued that the grievor’s
unequivocal evidence communicated to the investigator and given in these proceedings
was that the “events raised are old.”
[186] The Employer was clear that it “does not say that there were not rumours, or that
disputes between the grievor and M may have overflowed into the workplace,” and that
“various folks had their various beliefs” regarding those alleged past events. In the
Employer’s submission, however, these were matters dealt with in 2008 and the fact
that “folks still possess their views” regarding those past already resolved events did not
give rise to renewed obligations on the Employer to revisit matters already addressed
and resolved. The Employer argued that the fact that “folks held their beliefs about
2005 events does not trigger an obligation on the Employer to ensure that those are not
reported to an investigator” in 2011. In the Employer’s submission, there was no
evidence that “people were saying things about the grievor” at the time of the
investigation, and, as far as the Employer was aware and as far as the evidence
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established, there was “no active exchange of information in the workplace,” “no
evidence of people gossiping about it,” and no evidence of a poisoned work
environment at the time in question.
[187] The Employer referenced a statement attributed to a Deputy Superintendent
found in the investigator’s reports regarding washroom graffiti depicting the grievor as a
“stalker.” The Employer noted that this was not an issue that the grievor saw fit to
address through days of examination in chief, that he was in fact unable to recall when
this even took place, and confirmed that it was reported to the Employer and addressed.
[188] The Employer commented as well on the grievor’s view that accommodation was
required because of his fears of how others may view him. Counsel noted the grievor’s
acknowledgement that such belief was at least in part “in his head” and based on past
alleged events involving M prior to 2010 and another co-worker in the 1990’s. In the
Employer’s submission, while the grievor clearly believes that alleged past events gave
rise to his alleged need for accommodation, there was no evidence adduced of current
events not already addressed by the Employer.
[189] Counsel stated that he appreciated the grievor’s concern that “once a statement
is made it is out there,” but suggested that such past events already dealt with do not
become the source of renewed liability for the Employer in the absence of evidence of
new events. Rather, in the Employer’s submission, the Employer and Mr. Small in
particular properly understood that allegations of workplace defamation had already
been dealt with given the absence of evidence of anything contemporaneous.
[190] In the Employer’s submission, it is clear from the October 2012 grievances and
from the grievor’s evidence that the “principal concern” underlying the grievances was
that 2005 events had not been resolved to his satisfaction despite the Board’s 2008
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decision disposing of the grievor’s 2006 grievance on the basis of the parties’ agreed
protocol. The Employer acknowledged that “tucked in with that” is an allegation of a
poisoned “atmosphere” which the Union addressed through the grievor’s “historic
beliefs” and his views regarding the adequacy of the 2011 investigation. It emphasized,
however, that there was no evidence of any current issues not already resolved.
[191] While the Employer denied the grievances on their merits, Counsel also
addressed the Union’s remedial claims. The Employer emphasized, and noted the
Union’s acknowledgement, that there was little evidence that the grievor sought medical
attention during the relevant timeframe. In Counsel’s submission, Board jurisprudence
is clear that the Union must establish serious illness in support of a claim that article 9 of
the collective agreement has been breached. The Employer argued as well that the
Board requires that the Union demonstrate through medical evidence a link between
symptoms and Employer conduct in support of a claim for damages. It relied in this
regard upon the Board’s decision in OPSEU (Press) and Ontario (Ministry of Health and
Long-Term Care), GSB # 2003-1461 et al., October 9, 2007 (Mikus) and disputed the
Union’s assertion that the decision in Pereira, supra, suggests otherwise. In the
Employer’s submission, the evidence before me did not substantiate the Union’s claim
that the grievor suffered significant harm. While Counsel did not allege dishonesty on
the grievor’s part, he suggested that his evidence was unreliable. He noted in particular
the grievor’s tendency toward self-diagnosis, and his confusion as to when he attended
at Lakeridge and what prompted him to do so. The Employer relied as well on the
Board’s decision in OPSEU (Groves) and Ontario (Ministry of Community and
Correctional Services), GSB # 2008-3971 et al., October 14, 2014 (Mikus). Counsel
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characterized that as a “far more serious case of ongoing harassment,” where the
Board ordered $1500 in damages.
[192] Counsel acknowledged that the grievor wants to “vindicate” himself as the
Employer has not, in the grievor’s words, “proven that he is a stalker.” In its submission,
however, the Union has not established a breach of the collective agreement, and it is
not open to the grievor to accomplish through these proceedings that which he seeks to
accomplish.
[193] The Employer addressed as well the December 2011 grievances before me,
which it asserts “plug into” the grievor’s perceptions regarding pre-2010 alleged issues
relating to M, and to some extent to alleged issues dating back to the 1990’s. The
Employer stated that it had no objection to the Board ordering that the grievor be paid
for November 14 and 15, 2011 sick days and for the full shift for November 18, 2011 to
the extent that this has not already been done. While Counsel was clear that the
Employer admits no wrongdoing, he recognized that it perhaps “invites” such an order
where it has not called evidence. Counsel noted that the grievor was clear that his
accommodation issue was resolved as of 2013. In these circumstances, he suggested
that it is open to me to order payment, but decline to otherwise comment on the
December 2011 grievances.
[194] To the extent that I consider it appropriate nonetheless to address and determine
the merits of the December 2011 grievances as requested by the Union, Counsel asked
me to find that the parties had their own different perspectives on what was suitable
work for the grievor based on the EHIF that he submitted. The Employer noted the
grievor’s acknowledgement that it is a Corrections Officer’s responsibility to observe
others, and that his difficulties doing so were somewhat “in his head” and based on his
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perceptions regarding past events involving TM in the 1990’s and later M. The
Employer suggested as well that the grievor’s understanding of restrictions was not
reflected in the EHIF. The only evidence before me as to what followed is that the
parties ultimately “worked it out.” While the Employer did not oppose the grievor being
paid for November 18, it took the position that it was within its managerial authority to
interpret the restrictions provided by the grievor.
[195] Employer Counsel spoke to Grievance # 2011-3212 as well. Counsel suggested
that the request for a sick note for November 14 and 15 “fell within” article 44.10 of the
collective agreement. The Employer took the position that the grievor’s return to work
on November 18 did not re-set the clock for the counting of five days absence given
that he asserted that his medical condition precluded him from performing the work
assigned that day. The Employer noted that the concern initially articulated by the
Union and the grievor was merely that it was “unreasonable” for it to require a note.
Counsel referred as well to the evidence that the grievor worked with his Counsel on
November 14, and that he had no difficulty in August 2011 in providing “after the fact” a
medical note in support of a claim of sickness at that time.
[196] In addition to the decisions in Press, supra, and Groves, supra, referenced
above, the Employer relied upon the following authorities in these proceedings: OPSEU
(Samsone) and Ontario (Ministry of Community Safety and Correctional Services), GSB
# 2008-2885 et al., October 14, 2008 (Harris); OPSEU (Sager et al.) and Ontario
(Ministry of Transportation), GSB # 2000-0377 et al., October 6, 2004 (Mikus); OPSEU
(Lesieur et al.) and Ontario (Ministry of the Environment), GSB # 2002-1756, December
14, 2005 (Briggs); OPSEU (Belanger et al.) and Ontario (Ministry of Community and
Correctional Services), GSB # 1999-1782 et al., March 10, 2006 (Harris); OPSEU
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(Moss) and Ontario (Ministry of Community and Correctional Services), GSB # 2011-
0560, June 10, 2014 (Briggs); OPSEU (Halfyard) and Ontario (Ministry of Community
and Correctional Services), GSB # 2001-1778 et al., April 21, 2010 (Gray); OPSEU
(Brydges et al.) and Ontario (Ministry of Community and Correctional Services), GSB #
2011-0560 et al., November 14, 2014 (Dissanayake); OPSEU (Stevenson) and Ontario
(Ministry of Community and Correctional Services), GSB # 2014-4813 et al., September
14, 2015 (Harris); and OPSEU (Hernden/Larkin) and Ontario (Ministry of Community
Safety and Correctional Services), GSB # 2011-2370 et al., June 10, 2014
(Dissanayake).
[197] The Union replied to the Employer’s submission that there was nothing alerting it
as of the time of the 2011 investigation to allegations of current defamatory workplace
conduct. Counsel argued that the incidents about which the grievor complained and
which led to the 2011 investigation post-dated both the Board’s 2008 decision and the
2009 and 2010 grievances decided by the 2014 interim decision. Those earlier
incidents, however, in the Union’s submission, “produced poison in the workplace that
continued,” in that others continued to see the grievor in a negative light. Counsel
argued that this was “the problem that the grievor presented” in 2011.
[198] As already noted, the Union in reply argument directed my focus to Grievance #
2012-3211. Counsel suggested that other grievances “may or may not stand,” but that
this grievance is at the “root of the issue” before me.
[199] Counsel urged me to refer to witness accounts included in the investigation
reports reflecting “rumours” that the grievor “previously stalked” a female Officer. The
Union took the position that such rumours in the workplace are defamatory and are
prohibited by law and by the collective agreement. It alleged that legislation, the
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collective agreement and the WDHP policy impose on the Employer a duty not only to
develop a policy required by statute, but also to proactively take the reasonable steps
required to ensure that the workplace is free of harassment.
[200] The Union clarified that it does not ask me to find named employees guilty of
defamation, but seeks a finding that the investigation report itself is evidence that co-
workers defamed the grievor as of the time of the reports.
[201] While the Union acknowledged that statements made to the investigator by
witnesses and by the investigator to the Employer may be protected by qualified
privilege, Counsel suggested that by January 2012 the Employer knew through the
investigation reports that defamatory statements were at that time being made about the
grievor in the workplace. In the Union’s submission, those statements were not
protected by qualified privilege and gave rise to the Employer’s duty to act. Counsel
argued that Mr. Small did not “absorb the importance” of the statements made by
witnesses to the investigator and that he had an obligation to do so. While the Union
acknowledged that the Employer cannot constrain views held by employees, it argued
that the Employer should have ensured that defamatory views were not expressed in
the workplace.
[202] The Union noted that the grievor’s complaint of “reprisal” by Ms. Maccarone was
not addressed in Mr. Small’s October 2012 correspondence. It took the position,
however, that I need not “focus” on this. In Counsel’s submission, what is before this
Board “is not about reprisal” but about the Employer’s alleged failure to deal with
defamation.
[203] The Union asked that I order the Employer to undertake “corrective action” in
consultation with the Union.
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[204] In final submissions, Union Counsel requested the opportunity to file post-hearing
submissions. The Employer had no objection to him doing so. In post-hearing
submissions dated February 9, 2017, Union. Counsel stated that sections 32.01.1 (1)
and 32.0.6 (1) and (2) are the provisions of the OHSA relevant to this case. He argued
as follows:
In summary, the Union submission is that these provisions in Bill 168 by reference bring the WDHP policy re harassment into the Collective Agreement as part of the OHSA, a statute that has been deemed by inference part of the Collective Agreement. In the alternative the WDHP policy assists the Board in determining what is “reasonable” under Article 9
of the Collective Agreement or in the exercise of the employer’s obligations in administering its rights as per Article 2.
[205] The Employer responded by written submissions dated March 3, 2017, stating in
part as follows:
Importantly, the Employer duties under section 25 of the OHSA do not apply with respect to the policy requirement of sections 32.01(1)(b) and 32.0.6. This is
made clear by the seminal OLRB decision in Investia Financial Services (3990-10-OH). . . . Both the Act and the OLRB are clear that the limited extent of the obligation regarding workplace harassment is that an employer only have a policy for dealing with complaints . . . . See . . . paragraphs 17 and 18 where the Board clearly outlines the limitations of the sections referenced by the Union and
therefore the limitations to a tribunal’s jurisdiction in applying those sections. It is also worth noting that the provisions are not written in any way to provide anything to a respondent to a potential harassment complaint – it is limited to setting out how workers can make complaints and that the policy will set out how employers will investigate and deal with complaints. The union here is seeking to
make more of these provisions than was intended by the legislature and determined by the OLRB. The provisions do not purport to accomplish anything close to what the Union has suggested, and has no impact in changing the already established caselaw. Furthermore, and as stated previously, the GSB has been quite clear that an alleged breach or procedural failure under the
WDHP policy cannot be the source of a grievance under any provision of the collective agreement. The union has simply not pointed to any jurisprudence supporting its position whereas all the jurisprudence suggests otherwise. . . . It is also worth noting that the amendments made in 2016, although still not
activating any of the employer duties under s. 25 of the OHSA also provides additional procedural requirements for harassment policies that did not previously exist . . . .
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[206] Union Counsel advised on March 24, 2017 that no reply submissions would be
filed.
[207] Counsel were subsequently asked for submissions regarding the
appropriateness of anonymizing the grievor’s name in this decision and their positions
have been noted herein. They were also offered at that time the opportunity to
comment on three additional points. First, the Union alleged in these proceedings that
article 22.10 was breached, but made no submissions in final argument in support of
that position. Counsel were offered the opportunity to comment on article 22.10.3.2.
[208] Further, the Union relied in final argument upon the arbitration decision in
Greater Toronto Airports Authority, supra. The Divisional Court’s decision allowing in
part an application for judicial review ([2011] O.J. No. 358 (QL)) was not put before me
in final argument and Counsel were both given the opportunity to comment on it.
[209] Further, the Employer in post-hearing submissions relied upon the “seminal”
decision of the OLRB in Investia, supra. It came to my attention in circumstances
unrelated to this case that the OLRB declined in part to follow Investia, in its later
decision in Ljoboja v. Aim Group Inc. 2013 CanLII 76529. Counsel were offered the
opportunity to comment on the later decision therefore.
[210] The Union filed written supplementary submissions and a teleconference was
convened on June 27, 2017 at which time I heard from both Counsel. The Union
commented at that time on the grievor’s WDHP complaint and article 22.10.3.2 of the
collective agreement. Counsel argued at that time that the grievor’s WDHP complaint
and the investigation of his complaint in part dealt with allegations of sexual
harassment, and that the said contractual provision “applies” in such circumstances.
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Counsel suggested that that article provides for a mandatory time limit of ninety days for
completing the WDHP complaint procedure, and that this includes reporting the result to
the grievor as the complainant. The Union argued that this “did not happen,” and that
the Employer thereby breached the collective agreement. It argued as well that article
22.10.3.2 “reinforces the timelines established by the WDHP policy and should be
deemed to define the outer limit for the Employer to deal reasonably with a complaint.”
In Counsel’s further submission, “there is no basis for arguing that other complaints
beyond sexual harassment should be dealt with less expeditiously, including complaints
of persistent and continuing defamation in the workplace.”
[211] In response, the Employer suggested that I heard no evidence or submissions in
these proceedings which brought into play the language of article 22.10.3.2 which
provides that an employee has the right to be free from “a sexual solicitation or advance
made by a person in a position to confer, grant or deny a benefit” and from “a reprisal . .
. where the reprisal is made. . . by a person in a position to confer, grant, or deny a
benefit…..” The Employer’s position was that article 22.10.3 2 “does not create a
separate actionable right,” but reflects the parties’ acknowledgement of the
appropriateness of putting the grievance process on hold in appropriate circumstances
where conduct referenced in article 22.10.2 is brought to the Employer’s attention. The
Employer further argued that in any event, the grievor’s WDHP complaint in issue here
was only raised during the course of an Employer initiated investigation, in
circumstances where there was no obligation for the Employer to engage in such
investigation. Once the grievor brought forward his allegations in late 2011, the final
investigation reports were issued promptly.
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[212] The Union argued in reply that by the time the grievor filed his June 2011
grievance, his allegation of sexual harassment was clear. Counsel urged me to find that
what he characterized as a mandatory ninety day time limit for the conduct of the
WDHP complaint was breached both in a delayed start to the investigation and in a
delayed response by the Employer once investigation reports were issued.
[213] The Union commented as well on the OLRB’s decision in Aim Group, supra, and
stated as follows:
In Aim Group Inc., the OLRB concludes that the OHSA imposes on employers an
express obligation to create and maintain an anti-harassment policy. Flowing from that there is the Board says, an obligation to take the necessary steps to actively carry out the policy. . . .
In the present case, the issue is the delay in dealing with the investigator’s report and how the Employer intends to deal with the report’s recommendations. Did the Employer act in accordance with the time limit provisions of the policy established pursuant to the Act or otherwise in a reasonable time. The Union submits that the Board’s reasoning in Aim leads to the conclusion that the Act
also requires the Employer to deal with complaints in a timely way. To do otherwise would undermine the very policy the Act expressly requires. Breach of the policy is therefore a breach of the Grievor’s Collective Agreement rights which are deemed to include the rights provided for in the OHSA.. . .
Unreasonable delay in dealing with complaints is implicitly contrary to the Act; the WDHP policy and Article 22.10.3.2 effectively defines unreasonable delay. [214] In response, the Employer argued that although the OLRB’s decision in Aim
Group Inc., “deviated” from that in Investia on the question of its jurisdiction where a
worker alleges reprisal for filing a complaint under a harassment policy required by the
OHSA, it did not “read into” the legislation additional substantive rights for workers or
obligations for employers.
[215] The Union in reply urged me to find that the OLRB in Aim was clear that what
flows from the OHSA requirement that an employer establish and maintain a
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harassment policy, is that an employer must “take reasonable steps to carry it out.” In
the Union’s submission, where there is undue delay in addressing a complaint of
harassment under the statutorily required policy, the OHSA that mandates such policy is
in itself undermined. The Union argued that it is “implied” that the Employer is to
respond to a harassment complaint in a timely manner, and it asked me to find that
what is reasonably timely is set out in the Employer’s WDHP Policy. In Counsel’s
submission a breach of the policy renders the policy ineffective and thereby in turn
constitutes a breach of the legislation that mandates it, and of the collective agreement
which he states “incorporates” the relevant statutory requirements.
[216] Finally, both parties commented on the Divisional Court’s decision in Greater
Toronto Airports Authority, supra. The Union stated that it does not seek punitive
damages in these proceedings, but suggested that the Court in GTAA concluded that
deterrence can be considered in determining the quantum of damages for mental
distress. In Counsel’s submission, damages for mental distress should be awarded
here in response to the Employer’s nonadherence to time limits, and the quantum
awarded ought to reflect the need for deterrence.
[217] The Employer argued in response that the Divisional Court in GTAA did not state
that it is appropriate to “bump up” compensatory damages as a form of deterrence, but
that rather, the deterrent effect inherent in an award of damages should be recognized
and acknowledged.
THE DECISION
Grievance #’s 2011-3211 and 3212 dated December 28, 2011
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[218] Grievance # 2011-3211 alleges that the Employer failed to fulfill its duty to
accommodate the grievor when it sent him home two hours into his scheduled shift on
November 18, 2011. The evidence established that Mr. Storey initially advised the
grievor that evening that he was to be suspended for insubordination if he did not
perform the work assigned. The grievor testified, however, that the Employer
subsequently characterized what took place that evening as “no work, no pay.” There
was no evidence before me that the Employer ultimately treated the November 18
incident as one of insubordination warranting discipline, or that discipline was in fact
imposed. I am not satisfied that the Employer’s decision to send the grievor home early
on November 18, 2011 was a disciplinary sanction.
[219] In final argument, the Employer advised that although it admits no wrongdoing, it
did not oppose an order that the grievor be paid for any unpaid hours for which he was
scheduled to work on November 18, 2011. While Counsel suggested that I need not
further comment in the present circumstances, I consider it nonetheless appropriate to
decide the merits of the grievance as requested by the Union.
[220] The issue to be decided is a narrow one. To be clear, I need not and do not
address the Employer’s January 2011 rescission of a “no nights” accommodation
previously afforded the grievor. Nor do I address the Union’s suggestion that the
Employer’s past accommodation of the grievor reflected its awareness of health
problems that the Employer “had every reason to expect were the product of a
campaign against him.” Whether the grievor at any time suffered or suffers from a
disability within the meaning of the Code, whether or not he had/has workplace
restrictions based on disability, and whether the Employer could have accommodated
any such restrictions without undue hardship at any time other than November 18, 2011
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are not issues before me. Further, insofar as the grievance alleges “malice,
highhandedness and coercion,” and attributes improper motives to Ms. Maccarone, I
merely note that there was no evidence before me supporting such claims. The grievor
suggested as well in December 13, 2011 correspondence to Ms. Maccarone that the
Employer’s decision to send him home on November 18 constituted retaliation for the
exercise of his rights under the Code. There was no evidence before me substantiating
that allegation which was not in any event pursued by the Union in these proceedings.
[221] There was little evidence before me as to what transpired between January and
November 2011 with respect to the grievor’s request for accommodation. His “no
nights” accommodation was revoked in January 2011. He acknowledged that he may
not have been scheduled for nights until July 2011. An issue apparently arose between
the Employer and the grievor when he was absent from scheduled night shifts in July
2011, but he ultimately received sick pay for the nights in question upon production of a
medical note covering the relevant dates.
[222] Dr. Nagel completed an EHIF dated October 7, 2011 and recommended therein
that the grievor “avoid activities where he has to track other workers.” That EHIF was
submitted to the Employer on or about November 3, 2011. The grievor’s next
scheduled night shifts were on November 14 and 15, 2011, and he was absent due to
illness both nights. He reported for his scheduled night shift on November 18, 2011 and
believed that his initial assignment exceeded his restrictions. He communicated to the
Employer that he had an EHIF setting out what he viewed as required accommodation,
and he requested an alternate assignment. He was at first given assignments which he
accepted were within his restrictions, but was then told that he would be sent home if he
did not assume his initial assignment. He was then sent home.
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[223] The grievor expressed the view in these proceedings that accommodation was
required given the Employer’s alleged failure to “correct” false statement, and he
acknowledged that such belief was in part “in his head.” He accepted that observation
of co-workers forms part of the duties of Correctional Officers. I recognize as well that
he expressed views about his restrictions not reflected in the EHIF submitted to the
Employer. Clearly, the grievor had a role to play in the accommodation process, and my
decision herein does not negate his responsibility to provide the Employer with
appropriate information regarding any restrictions based on disability for which he seeks
accommodation.
[224] The Employer also had obligations, however, where accommodation based on
Code enumerated grounds was sought. The Divisional Court commented on these in
ADGA Group, supra, stating as follows:
Employers have procedural and substantive duties to accommodate employees
with disabilities up to the point of undue hardship. . . . (para 104) . . . The procedural duty to accommodate involves obtaining all relevant information
about the employee’s disability, at least where it is readily available. It could include information about the employee’s current medical condition, prognosis for recovery, ability to perform job duties and capabilities for alternate work. The term undue hardship requires respondents in human rights cases to seriously consider how complainants could be accommodated. A failure to give any
thought or consideration to the issue of accommodation . . . constitutes a failure to satisfy the “procedural” duty to accommodate. . . . (para 107) [225] While the Employer argued that both parties had their own perspectives
regarding the EHIF and that it had the authority to interpret the restrictions provided to it,
I heard no evidence as to what the Employer understood the EHIF to contemplate or
what position it took with respect to the grievor’s request for accommodation as
reflected by the EHIF. There was no evidence before me that the Employer had by
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November 18, 2011 considered, evaluated, or in any way turned its mind to the grievor’s
request for accommodation based on the EHIF. Nor was there evidence of any
discussion between the Employer and the grievor regarding the EHIF, or of any request
by the Employer for further information or clarification. The grievor’s evidence was that
there was in fact work available on that shift that he accepted met his restrictions as he
viewed them. There was no evidence that the Employer would have experienced
undue hardship had it assigned the grievor accordingly for that shift.
[226] The issue before me here is whether the Employer gave the required “thought or
consideration to the issue of accommodation,” and specifically, whether it considered
and evaluated the grievor’s request for an alternate assignment on November 18,
2011, before sending him home. In all of the circumstances, and given the absence of
evidence that the grievor’s requested accommodation and EHIF submitted in support of
that request had in any way been considered and/or evaluated by the Employer as of
November 18, 2011, I am of the view that the Employer did not consider the request as
it was required to do. I therefore find that it breached its duty to accommodate him by
sending him home two hours into his shift, and thus violated the collective agreement.
Grievance # 2011-3211 is therefore allowed.
[227] The grievor’s evidence in these proceedings was that he was paid only for the
two hours that he was at work on his scheduled November 18, 2011 shift. The
Employer suggested in final argument that this may have since been rectified. Counsel
both agreed that my jurisdiction is to be retained in the event that the parties cannot
agree whether or not the grievor has by now been paid for the full scheduled November
18, 2011 shift. I find that the grievor was entitled to be paid for all hours scheduled for
November 18, 2011, and to the extent that he has not already been paid for the full shift,
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I order that the Employer compensate him accordingly. My jurisdiction is retained as
agreed by Counsel.
[228] While I acknowledge, as noted by the Employer, that the Union’s position with
respect to Grievance # 2011-3212 evolved over the course of these proceedings, the
grievance filed in December 2011 alleges in part a breach of article 44 of the collective
agreement. The evidence established that the grievor called in sick on November 14
and 15, 2011 due to what he described as “mental health concerns” and “being out of
sorts.” While he outlined during his evidence in chief two somewhat different versions
of the relevant factual chronology, Counsel both made submissions on the basis of his
evidence that he was on scheduled days off on November 16 and 17, and then returned
to work on November 18. This was followed by absence due to illness and scheduled
days off before he returned to work on December 9, 2011. He provided the Employer
with a medical note covering sick days from November 18, but was also asked for a sick
note for November 14 and 15 by December 9, 2011 memo from Ms. Maccarone.
[229] Article 44.10 of the collective agreement provides that “after five days’ absence
caused by sickness, no leave with pay shall be allowed unless a certificate of a legally
qualified medical practitioner” is provided to the Employer, but that “where it is
suspected that there may be an abuse of sick leave,” a certificate may be required for
absences of less than five days. The parties disagreed in final argument whether the
grievor’s return to work for two hours on November 18 “re-set the clock” for the
calculation of “five days’ absence.” While I make no general comment as to what does
or does not “re-set the clock” for such purpose, I am satisfied in the specific
circumstances before me that the “clock” was in fact “re-set” when the grievor returned
to work on November 18 able to perform available work and where his accommodation
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issues had yet to be resolved in the circumstances described herein. His November 14
and 15 absences were not properly considered part of “five days’ absence caused by
sickness.”
[230] The collective agreement contemplates that a medical note may nonetheless be
required for absences of less than five days where “it is suspected that there may be an
abuse of sick leave.” The Board considered the relevant contractual language in
Hernden/Larkin, supra, and stated as follows:
The effect of this provision . . . is that under article 44.10 as a general rule
employees are entitled to paid sick leave for absences of less than five days without the need for a medical certificate. However, the parties have negotiated an exception to this general rule. That is, a medical certificate may be required at the employer’s discretion when abuse is suspected. In the Board’s view, the onus is on the employer to satisfy the Board that the
exception applies in the particular circumstances of each case. (para 41) . . . The question then is whether the employer has met its onus. In order to
do so, it must demonstrate to the Board that it held a suspicion of abuse on the part of each grievor, not only honestly, but reasonably…. . . .
The union disagreed that there were reasonable grounds to suspect abuse by either grievor even on the basis of the analysis provided at the hearing. However, counsel submitted that even if that was the case, it is not sufficient for the employer to provide an analysis of a grievor’s record to show at the hearing that a pattern reasonably leading to a suspicion of
abuse in fact exists. The employer must establish that such an analysis was undertaken at the time the decision maker exercised the discretion to require a medical note. The Board agrees. (para 52) [231] The evidence established that the grievor received a December 9, 2011 e-mail
from Ms. Maccarone requesting a sick note for a number of days including November
14 and 15, 2011.
[232] The grievor’s evidence was that Ms. Maccarone “threw out abuse” at some
undefined point. The evidence also established that the grievor responded to Ms.
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Maccarone’s December 9 request for a sick note by e-mail dated December 13,
advised at that time that he had been working “with legal Counsel” on November 14,
and complained that he had not been paid by the Employer for time spent working on
WDHP submissions.
[233] The issue for determination is not whether the evidence before me here
establishes a reasonable basis for suspicion of abuse of sick leave. Rather, the
question for determination is whether the Employer met its onus to demonstrate that at
the time that the contentious note was requested it reasonably held a suspicion of
abuse, and that the “analysis” relied upon in these proceedings was undertaken at the
time that it exercised its discretion.
[234] In the absence of evidence from the Employer in these proceedings, I conclude
that it did not meet its required onus under article 44.10. Grievance # 2011-3212 is
therefore upheld. While I note the grievor’s suggestion in December 13, 2011
correspondence that Ms. Maccarone received “personal gratification by strong arming
and humiliating” him in the demand for medical notes, that was not proven and is not
the basis upon which the grievance is upheld.
[235] The grievor’s evidence was that he did not receive sick pay for November 14 and
15, 2011. While the Employer noted in final argument that it had no objection to an
order that the grievor be paid such sick pay, Counsel suggested that this may have
already been rectified since the filing of the grievance. Counsel once again both agreed
that my jurisdiction is to be retained in the event that the parties cannot agree whether
or not the grievor has in fact already been paid for the two days in question. I thus order
the Employer to compensate the grievor with the sick pay to which he was contractually
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entitled for November 14 and 15, 2011 to the extent that it has not already done so, and
my jurisdiction is retained as agreed by Counsel.
Grievance #2011-0957 (June 7, 2011) and Grievance #’s 2012-3211 – 2012-3218
(October 31, 2012)
[236] In final argument, the Union emphasized that the Employer’s alleged failure to
appropriately investigate and respond to “continued issues of defamation presented by
the grievor” is the “gravamen” of these grievances. While Grievance # 2012-3212
alleges defamatory conduct on the part of management, the Union clarified in final
argument that there is no allegation advanced at this time that members of
management defamed the grievor. That position was consistent with the grievor’s
evidence before me. In the Union’s submission, the grievances before me address the
Employer’s alleged failure to respond as required to the defamatory conduct of co-
workers. Grievance # 2012-3212 is therefore dismissed.
[237] A number of grievances allege a flawed investigation process. The Employer’s
WDHP Policy was in evidence before me and sets out in detail a framework for the
“prevention of workplace discrimination and harassment and effective response” to such
issues. Underlying “principles” noted therein include a commitment to “procedural
fairness,” and recognition of the importance of “timely” responses to discrimination and
harassment. Timeframes are outlined for various steps in an investigation process. I
note that the policy contemplates that an external investigation is to be “completed and
a final report submitted, within 90 working days of assigning a complaint to an external
investigator,” and that the final report is then to be submitted to the deputy minister or
deputy minister’s delegate. While the Union characterized the WDHP Policy as a
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“foundational” document, the parties disagreed whether alleged nonadherence with its
terms can “ground” the grievances before me.
[238] The Board’s jurisprudence relied upon by the Employer in these proceedings is
clear that alleged nonadherence with an Employer policy does not, in and of itself, form
the basis for a grievance absent a demonstrated breach of contractual or relevant
statutory obligations. While it is open to the Union to seek to demonstrate that a breach
of policy also amounts to a violation of contractual or statutory obligations, the latter
must be established to substantiate a grievance under the collective agreement. The
Board addressed this as follows in its decision in Press, supra, where the Union argued
that the Employer’s alleged breach of its Investigation of Allegations of Patient Abuse
Operational Policy constituted a breach of article 9 of the collective agreement:
It is clear from a review of the cases . . . that the first step in dealing with the allegations of a breach of article 9.1. . . . is to determine whether the
Employer’s decision to suspend the grievor during the preliminary investigation can be characterized as a breach of its obligations to take reasonable precautions for the health and safety of the grievor. . . . . . .
It is this stage of the process that the grievor believes should have been handled differently and that, had it been done properly, he would have been exonerated immediately. He considers the Employer’s breach of the policy to be a breach of its obligations under the collective agreement. It
is a unilateral rule, promulgated by the Employer without consultation with the Union. A failure to follow the policy cannot be a violation of the collective agreement in and of itself any more than Employer policies are unilaterally enforceable against bargaining unit members absent a breach of the collective agreement. . . . The question for this Board is to
determine whether, in the circumstances of this case, the Employer’s deviation from its own policy resulted in an unacceptable risk to the grievor’s health and safety. (pp. 47-48) [239] The Union noted, and I acknowledge, the Board’s determination in Ranger,
supra, that the Employer breached the WDHP. The Board’s remedial orders there,
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however, must be viewed in light of its finding of contractual and statutory breaches. I
do not regard the decision in Ranger as deviating from the Board’s jurisprudence which
clearly supports the position advanced by the Employer.
[240] Although I accept the Employer’s submission that the Union must demonstrate
the violation of contractual or statutory obligations in order to sustain a grievance, the
Union’s position at least in final argument and post-hearing submissions was that
sections 32.0.1(1), 32.0.6(1) and (2) of the OHSA “bring the WDHP Policy re
harassment” and particularly those provisions pertaining to the timeframe for the various
steps of an investigation process “into the collective agreement.”
[241] Those provisions of the OHSA state in part that an employer shall “prepare a
policy with respect to workplace harassment” and “develop and maintain a program to
implement the policy” in accordance with section 32.0.6 (2). The OLRB commented as
follows on such statutory obligations in Investia, supra:
Therefore, it appears the OHSA only requires an employer to put a workplace harassment policy and program in place and to provide a worker with information and instruction as appropriate. The OHSA does not provide any further requirements and, in particular, does not provide
that the duties under ss. 25, 27, and 28 apply with respect to workplace harassment. Further, the OHSA provides no specific rights to a worker with respect to workplace harassment. (para 13) . . .
In the case of an employee who complains that he has been harassed, there is no provision in the OHSA that says an employer has an obligation to keep the workplace harassment free. The only obligation set out in the Act is that an employer have a policy for dealing with harassment
complaints . . . . (para 15) . . . What it appears the Board does not have the authority to do is to
adjudicate upon the practical application of a policy that otherwise complies with the Act. If an individual complains under an employer’s workplace harassment policy and doesn’t like the way the employer
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handled the investigation (i.e. it didn’t interview anyone) and then that person complains to the employer about its poor investigation and is fired, the Board appears not to have the authority under section 50 to deal with that situation. The discharge is not a reprisal as defined under section 50, because the Act does not dictate how an employer will actually investigate
a harassment complaint. . . . . (para 17) [242] In a 2013 decision in Aim Group Inc., supra, the OLRB revisited its 2011 decision
in Investia. Counsel both commented in post-hearing submissions on that later decision.
While the OLRB in Aim accepted “nearly all of the reasoning in Investia,” (para 61) it
declined in part to follow its earlier decision and stated as follows:
In . . . Investia, supra, the Board reasons that because the Act does not obligate employers to provide a harassment free workplace the Board has no jurisdiction or ability to inquire into an allegation that a worker was terminated because he or she made a harassment complaint to their employer. With the greatest respect, I accept the applicant’s argument
that this analysis is flawed because it fails to consider the distinction between, on the one hand, complaining that the employer has failed to provide a harassment free workplace and insisting on that substantive outcome and, on the other hand, complaining that the employer has failed to comply with its obligation to provide a policy through which workers may
make complaints about workplace harassment. While employers are not obligated to provide the former, employers are obligated to provide the latter. Accepting, as I do, that the Act requires employers to have an internal
process for addressing instances and complaints of workplace harassment, it would entirely undermine that process if an employer is free to terminate a worker because he or she brought forward a complaint of workplace harassment in compliance with that process. An interpretation of the Act that find employers are obligated to create and maintain a policy
by which workers may bring forward complaints of harassment but are nevertheless free to terminate, or otherwise penalize or retaliate against, any worker for having actually made a complaint under that policy is, in my view, untenable. To interpret the Act in this manner would be to strip the employer’s obligation to have a program to implement their workplace
harassment policy through which workers may make a complaint of any meaning. . . . Surely the Legislature did not envision that, in requiring employers to describe how they will “deal with” complaints of workplace harassment . . . , employers would be free to terminate the complainant merely because he or she had the temerity to complain about a course of
unwelcome and vexatious comment or conduct? (paras 48-49)
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[243] I have considered the Union’s argument that what flows from the decision in Aim
is that non-adherence with the WDHP Policy, and particularly the alleged failure to deal
with complaints in a timely way as contemplated by the policy, undermines it, and
therefore the legislation which mandates the policy. While the OLRB in Aim declined to
“follow Investia, supra, to the extent that it stands for the proposition that the Act does
not prohibit employers from penalizing or retaliating against workers for making a
complaint about workplace harassment under the employer’s mandatory policy,” (para
59) it did not vary the determination in Investia that “the only obligation set out in the Act
is that an employer have a policy for dealing with harassment complaints.” (Investia,
supra, para 15)
[244] The OLRB stated as follows in Aim:
Reading these provisions as a whole, the obligation on employers with respect to workplace harassment is entirely procedural. There is an obligation on an employer to develop and implement an internal process for reporting,
investigating and dealing with workplace harassment issues. . . . Moreover, employers are provided with significant leeway in determining the process that they will adopt by which workers may make complaints and those complaints will be investigated and dealt with . . . . (para 38)
. . . I therefore agree with the reasoning in Investia, supra, that if an employer refuses to create a workplace harassment policy and a worker complains and demands the employer create such a policy, . . . the Act prohibits the employer from
penalizing or retaliating against that worker for making that complaint. In such a circumstance, the employer would not have complied with its obligation to create a policy to deal with workplace harassment and the worker would have been seeking the enforcement of the Act by requiring the employer to develop such a policy. (para 44)
I also agree if the worker complains that the policy is not posted, that the policy does not contain measures and procedures for complaining, that the policy does not set out how the employer will investigate and deal with complaints of workplace harassment or that he or she was not given sufficient information on
the policy, subsection 50(1) would likewise prohibit the employer from reprising against the worker. These are all clear obligations Part III.0.1 places on the employer. . . . (para 45)
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I likewise agree an application complaining about the method by which an employer investigated a complaint or the determination an employer made with respect to the outcome of a complaint is unlikely to be successful. This is because the Act places no obligations on employers with respect to substantive outcomes, nor does it prescribe any explicit method by which complaints will be
investigated or determined other than requiring employers to “set out how” a complaint will be investigated and dealt with. (para 46) [245] While the OLRB determined in Aim that it would “entirely undermine” the
statutory requirement for an internal process to address complaints of workplace
harassment were it to find that an employer is free to terminate or otherwise retaliate
against any worker who complains under the statutorily mandated policy, I am unable
to accept the Union’s argument that what follows from such conclusion is that alleged
nonadherence with the process set out in that policy, and particularly nonadherence
with time limits set out in the policy, in the same way undermines the statutory
obligation. The OLRB was clear in both Investia and Aim that what the statute requires
is the development of the required policy and the development and maintenance of a
program to implement that policy. Its decision in Aim recognizes that those
requirements are undermined if an employee can be terminated for availing himself of a
complaint process set out in the required policy. The OLRB was clear, however, in
both Investia and Aim, that the OHSA does not prescribe a specific process for the
investigation of harassment complaints. It stated in Aim that the legislation does not in
fact “prescribe any explicit method by which complaints will be investigated or
determined other than requiring employers to ‘set out how’ a complaint will be
investigated and dealt with.” (para 46) I would add that it does not mandate specific
timeframes for the investigation and determination of complaints. It cannot, in my view,
therefore be said that alleged nonadherence with time limits under the WDHP policy
undermines the legislative requirements to develop and maintain a policy and a
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program to implement the policy in the manner addressed by the OLRB in Aim. I do not
accept that the OLRB’s decision in Aim compels the conclusion that alleged
nonadherence with the procedural provisions of the WDHP policy, including the time
limits set out therein, undermines the legislation mandating that policy, and amounts to
a breach of statutory and contractual obligations.
[246] Further, I cannot accept the Union’s argument that the provisions of the policy
are incorporated into the collective agreement and define in and of themselves what
constitutes “reasonable provisions” for health and safety as contemplated by article 9 of
the collective agreement or what constitutes an “unreasonable” exercise of
management rights. While it is open to the Union to seek to demonstrate that alleged
non-adherence with the policy also amounts to a breach of contractual or statutory
obligations as was argued in Press, supra, it is such alleged contractual or statutory
breach that must be proven.
[247] I note as well in addressing the Union’s argument that the WDHP Policy forms
part of the collective agreement in defining the “reasonable” exercise of management
rights, that the Board’s jurisprudence is clear that it “has no free standing jurisdiction to
review the exercise of management rights for reasonableness” but may “intervene only
where the employer’s exercise of management rights results in the denial or
abridgement of a right employees have, explicitly or implicitly under the collective
agreement or a statutory provision.” (Brydges et al, supra, para 45)
[248] While I do not therefore accept that the WDHP Policy is “incorporated” into the
parties’ collective agreement, I have considered the grievor’s evidence as to what he
viewed as inadequacies in the investigation and decision making process undertaken in
2011 and 2012. The Employer noted in final argument that Mr. Small acknowledged
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through his October 2012 correspondence to the grievor that the investigation process
was at least in certain respects flawed. I have considered whether alleged procedural
flaws were established and proven to amount to breaches of the Employer’s contractual
and/or statutory obligations.
[249] The grievor alleged through Grievance # 2012-3214 that he was not made aware
of the nature of the complaint against him nor afforded an opportunity to respond to it
before the investigator formed her conclusions and forwarded her final reports to the
Employer. He and his Counsel were invited to meet with the investigator only once, in
October 2011. The grievor’s unchallenged evidence established that he was not
advised of the substance of M’s complaint at the October 2011 meeting with the
investigator. Rather, it was only upon receipt of the draft investigation reports in
December 2011 that he learned of the allegations against him and had an opportunity to
respond.
[250] The release of the draft reports was in and of itself a matter of some confusion.
Two drafts were initially delivered to the grievor’s Counsel, but electronically recalled.
Despite the reference to “reports” in a December 14, 2011 e-mail from the investigator
to the grievor’s lawyers, the grievor received a re-issued draft only with respect to his
complaint. There was no evidence that he made any inquiries of his lawyers in this
regard regarding the draft relating to M’s complaint. While the grievor received only the
one re-issued draft, he responded to both drafts, as he had received both before the
electronic recall. The grievor was afforded limited time to respond to two lengthy draft
reports, but nonetheless delivered his submissions to the investigator prior to the
deadline imposed for doing so. The investigator’s office acknowledged timely receipt of
the grievor’s submissions.
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[251] The grievor, of course, could not comment on what in fact then took place
“behind the scenes” and the Employer chose to call no evidence in this regard. It was
the grievor’s understanding that his lawyers received at least the final report pertaining
to M’s complaint on January 11, 2012. He received the final report pertaining to his
complaint only during these proceedings. I heard no evidence of any inquiries or follow-
up on his part when he received only the report pertaining to M’s complaint from his
lawyers. The grievor’s evidence that both final reports are virtually identical to the
corresponding drafts was unchallenged. The grievor noted that the final reports do not
appear to make express reference to receipt of or to the content of his final
submissions, and that both final reports are dated December 19, 2011, the day before
his submissions were due and delivered. Further, the grievor was of the view that he
had “corrected” what he characterized as “glaring errors” in the draft reports. The fact
that no such “corrections” were apparently incorporated in the final reports also led him
to question whether his response was considered.
[252] I have considered the concerns described by the grievor, and am mindful in
doing so that the Employer chose to call no evidence in response. Having viewed the
evidence in its totality, however, I find that the Union has not established that the
investigator failed to consider the grievor’s submissions before issuing the final reports.
[253] While the December 19 “submission date” on the final reports is noteworthy, the
grievor understood that his lawyers received a final report only on January 11, 2012.
The report received at that time was accompanied by correspondence dated December
21, 2011, which confusingly referenced a “draft” report, while purporting to enclose a
“final” report. Although receipt of the grievor’s December 20, 2011 submissions does
not appear to be expressly noted in the final investigation reports, there is little therein in
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the way of express confirmation of receipt of earlier submissions either, although the
narrative set out in those earlier submissions is at least in part reflected in the reports. In
all of these circumstances, I am not satisfied that the Union has demonstrated that the
grievor “was not appropriately informed of the nature of the complaint” or that he was
“not provided the opportunity to rebut or defend himself against the assertions of the
complainant or witnesses.”
[254] Bias, or reasonable apprehension of bias on the part of the investigator, was also
alleged by the grievor. As noted by the Employer, given the grievor’s views in this
regard, one can only be perplexed by the absence of evidence that either he or his
lawyers saw fit to raise such concern at any time prior to the filing of the October 2012
grievances, despite the fact that the grievor relied in part on comments that the
investigator made a year earlier at their one face to face meeting.
[255] Most fundamentally, however, I agree with the Employer that the ultimate
question for determination here remains not whether the Employer failed to abide by the
process set out in the WDHP Policy, but whether the grievor’s contractual and/or
statutory rights were breached in all of the circumstances. Here, the Employer’s
determination was that communicated to the grievor through Mr. Small’s October 2012
letter to the grievor. Had the Employer accepted the investigator’s conclusion that the
grievor engaged in misconduct with respect to M, and had it chosen to discipline the
grievor on that basis, the grievor would have had the contractual right to grieve and
challenge the basis for discipline. The adequacy or alleged inadequacy of the
investigation would not in and of itself be determinative of such grievance. Similarly,
where the Union takes issues with how the Employer dealt in any respect with the
grievor’s WDHP complaint, the question ultimately is whether or not his contractual or
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statutory rights were breached. I have considered the grievor’s evidence as it related to
alleged procedural flaws and particularly those alleged through Grievance #’s 2012-
3214, 3215 and 3216, together with the Union’s submission that the process was flawed
and that the Employer failed to “fix” it. I am not satisfied that contractual or statutory
breaches have been proven. Accordingly, Grievance #’s 2012-3214, 3215, and 3216
are denied.
[256] I have also considered Grievance #’s 2011-0957 and 2012-3213 which both at
least in part address alleged delay in the investigation process. Grievance # 2011-
0957, filed in June 2011, alleges that the Employer failed to comply with the timeframes
set out in the WDHP Policy. The Union was clear in both its particulars and opening
statements, and the grievor confirmed when giving evidence, that this grievance asserts
a failure to investigate M’s WDHP complaint within the timeframes set out in the policy.
Grievance # 2012-3213, filed in October 2012, alleges in part a violation of the collective
agreement and policies through “stalling time lines.”
[257] I have already addressed and rejected the position advanced by the Union that
the timeframes set out in the WDHP Policy are incorporated into and form part of the
parties’ collective agreement, and that nonadherence with such time limits therefore in
and of itself constitutes a contractual breach.
[258] While the Union chose not to comment in final argument on its allegation of a
breach of article 22.10 of the collective agreement raised at the outset of these
proceedings, in post-hearing submissions Counsel addressed article 22.10.3.2 which
states as follows:
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ARTICLE 22 – GRIEVANCE PROCEDURE . . . 22.10 SEXUAL HARASSMENT
. . . 22.10.3.2 Where, at any time either before the making of a complaint or the filing of a grievance under Article 22, the Employer establishes an investigation of the
complaint…, pursuant to any staff relations policy or other procedure of the Employer, the time limits for the processing of the complaint or the grievance under Article 22 shall be suspended until the employee is given notice in writing of the results of the investigation, which shall be completed within ninety (90) days or less, which time limits may be extended by mutual consent.
[259] In post-hearing submissions, the Union argued that the grievor’s WDHP
complaint at least encompassed allegations of sexual harassment, and that article
22.10.3.2 had application to the investigation of that complaint. It took the position that
the provision was breached.
[260] It is important in considering the parties’ submissions to note the Union’s earlier
acknowledgement in final argument that the investigation itself “may” in a “limited way”
have been completed and the report submitted within ninety days. While the Union then
suggested in post-hearing submissions that the grievor was not “given notice in writing
of the results of the investigation which shall be completed within ninety days or less,” I
am not satisfied that this was proven to be the case on the facts before me. The
grievor’s complaint was only articulated through his WDHP submissions delivered to the
investigator in late 2011, not as Union Counsel suggested in post-hearing submissions,
through his June 2011 grievance which in fact asserted a breach of WDHP timeframes
in the investigation of M’s complaint. The grievor testified that he understood that his
lawyer received at least the final report pertaining to M’s complaint in January 2012.
The report pertaining to the grievor’s complaint bore the same “submission date.” As
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noted, the Union accepted in these proceedings that this “may” have amounted to the
completion of an investigation and submission of a final report within ninety days. I do
not accept its submission otherwise in post-hearing argument, and nor am I satisfied
that the reference in article 22.10.3.2 to giving “notice in writing of the results of the
investigation, which shall be completed within ninety days” contemplates something
more than that, as was suggested in post-hearing argument.
[261] It also bears noting that the said provision, found within article 22 entitled
“Grievance Procedure,” speaks to the suspension of time limits for the “processing” of a
complaint or grievance under article 22, where an investigation is undertaken “before
the making of a complaint or the filing of a grievance under Article 22.” These were not
the circumstances in issue here. While I need not and do not address the parties’
disagreement as to whether or not article 22.10.3.2 establishes a mandatory ninety day
time limit for the investigation of a sexual harassment complaint in other circumstances,
the Union did not establish that the facts here fell within the scope of that provision or
that article 22.10.3.2. was breached.
[262] I conclude, therefore, that the Union has not demonstrated that delays in the
investigation process breached the parties’ collective agreement. Grievance # 2011-
0957 alleges a “breach in timeframe of the WDHP directive,” and the grievor confirmed
in these proceedings that this grievance challenged the delay in commencing the
WDHP investigation into M’s complaint. Having rejected the Union’s argument that the
provisions of the WDHP Policy form part of the parties’ collective agreement, that
grievance is dismissed. Grievance # 2012-3213 alleges the “stalling” of “time lines,” as
well as the “corruption of due process” and the “blocking” of “disclosure for the purpose
of obscuring wrongdoing.” While I have considered the Union’s post-hearing
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submissions regarding delay associated with the grievor’s complaint, it has not
demonstrated that the Employer breached the collective agreement in that respect, nor
that it “corrupted due process” or “blocked disclosure for purposes of obscuring
wrongdoing” and thereby breached the collective agreement. Grievance #’s 2011-0957
and 2012-3213 are thus both denied.
[263] Although the Union did not establish that alleged procedural flaws and delays in
the investigation process breached the collective agreement, considerable attention was
devoted in these proceedings to its submission that delays in the process compromised
the grievor’s health and caused him “significant harm.” Even if I had accepted that
delays amounted to breaches of the Employer’s contractual or statutory obligations, the
evidence before me did not substantiate the Union’s claim of “significant harm.”
[264] A number of points can be noted in this regard. First, despite the grievor’s
obvious comfort with self-diagnosis, including of significant mental health conditions
such as “severe depression” and PTSD, his diagnostic opinions do not constitute
evidence substantiating claims of serious illness. There was no medical evidence before
me supporting claims of illness.
[265] No health professional gave evidence in these proceedings. Medical records
were entered in evidence for limited purposes only, establishing the dates that the
grievor sought medical care, and the stated purpose of recorded visits to health
professionals. There was no dispute that the records before me reflect the “sum total”
of medical care sought in 2010 and 2011, and it is fair to say, as acknowledged by the
Union, that “little” medical attention was in fact sought during that period. There were
no medical records in evidence post-dating February 2012.
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[266] While I do not rely upon the grievor’s self-diagnoses, it is notable that medical
records reflect no medical attention for matters relevant to these proceedings at certain
points when he believed his health to be seriously compromised. Despite his
“statement” that he suffered from PTSD in or around February 2011, medical records do
not reflect that he sought medical attention for matters relevant to these proceedings at
or around that time. Similarly, he explained that he received no “treatment suggestions”
when he attended at Lakeridge in 2012 because he was already receiving medical care
for depression that was at the time “ramping up.” He recalled that he then “moved
through severe depression” with the assistance of an EAP healthcare provider. It of
course became clear in cross-examination that he was mistaken in recalling 2012 visits
to Lakeridge and to a healthcare professional through the EAP. It is also notable that
there are no medical records before me establishing that the grievor received medical
care in 2012 for matters relevant to these proceedings despite his recollection of
seriously compromised health at the time.
[267] The Union urged me to rely upon the grievor’s evidence not only with respect to
symptoms experienced, but also with respect to causation, where there was no medical
evidence before me that the grievor suffered harm as a result of any alleged breach of
Employer obligations. Counsel relied upon the Board’s decision in Pereira, supra, in
support of his assertion that there was no need to adduce medical evidence in the
present circumstances to establish nexus between alleged employer actions and a
claim of illness or impact on health. As pointed out by the Employer, however, the
Board in Pereira had before it a “no prima facie case” motion, and it considered in part
at that time the Employer’s position that the Union’s particulars did not “establish that a
reasonable probability of serious illness, or actual illness, could/did result from the
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increased workload” where breach of the Employer’s health and safety obligations was
alleged. The Board stated in part as follows:
I agree with the decision in Ferrill where the Board rejected the employer’s
submission that medical or scientific proof was required for the union to prove its case. It said . . . in part as follows: . . . the union must persuasively demonstrate that the schedule and working conditions will more likely than not result in the possibility of
unnecessary risk to the health and safety of its members. This evidence need not be given by “experts,” but what evidence is brought forward must be compelling . . . . (para 17) [268] I do not accept that the decision in Pereira, supra, supports the proposition
urged upon me by the Union, and note in this regard the Board’s determination in Press,
supra:
Where an individual grievor is claiming harm,. . . he must establish direct causation, supported by medical evidence, between the employee’s symptoms and employer’s practices. (p. 44)
[269] I note in any event, that although the Board in Pereira, supra, concluded in the
circumstances before it that “evidence need not be given by ‘experts,’” it was clear that
“what evidence is brought forward” must at the very least be “compelling.” The grievor’s
evidence on the issue of causation cannot be characterized as “compelling” here.
[270] While I have considered the grievor’s description of an emotional and anxious
state, I am of course mindful that his evidence as to the circumstances which he
believed caused such symptoms was undeniably confused. The grievor described
during his evidence in chief that his mental health in 2012 was “mild some days” and
other days “wipes you out.” He attributed this at least in part to delay, which he
suggested continued into these proceedings. He testified that this prompted him to
seek medical attention at Lakeridge in 2012, and subsequently through the EAP. He
also, of course, described 2011 symptoms which he attributed in part to
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contemporaneous workplace events, recalling that these were the circumstances that
prompted a visit to Lakeridge. He was clear that it was learning in January 2011 that a
complaint had been filed against him that put him “over the top.” The grievor
acknowledged, however, that he only attended at Lakeridge and sought assistance
through the EAP once – and the medical records before me demonstrate that this took
place in 2011. I do not minimize the difficulty inherent in recalling circumstances from
years earlier. The reliability of the grievor’s recollections as to symptoms and views as
to what caused such symptoms must at the very least, however, be assessed mindful of
his obviously mistaken evidence as to what prompted 2012 visits to Lakeridge and to
the EAP healthcare provider. The unchallenged records before me establish that such
visits did not in fact take place.
[271] Furthermore, while the Union urged me to rely upon the grievor’s views as to
what caused the symptoms he described, he was less than clear in asserting that
alleged symptoms were caused by delays in the investigation process. I note once
again in this regard the grievor’s evidence that it was learning in January 2011 that a
complaint had been filed against him that “put” him “over the top” at that time. He
described as well that the rescission of his “no nights” accommodation as of January
2011 caused anxiety. He also linked an emotional state to alleged difficulty dealing with
both the Employer and the Union, and to anger that the Employer had allegedly since
2005 “blocked” his attempts to hold his “accusers” accountable.
[272] In all of these circumstances, even if the Union had established that alleged flaws
or delays in the investigation of complaints breached the collective agreement, it did not
demonstrate that this resulted in significant harm to the grievor.
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[273] Grievance # 2012-3217 alleged as well negligence on the Employer’s part “in the
creation of an egregious and defamatory report attacking the character and reputation
of the grievor.” I note that although the investigator did not state in her final reports that
the grievor was/is a stalker, she recorded witness accounts that they had heard, that it
had been said, or that rumours had been heard that he had stalked.
[274] The grievor vehemently denied that he is or ever was a stalker, and he
expressed the view that he has been the victim of defamation. He was asked in
examination in chief what it is that he wants this Board to order, and he was clear that
he seeks a decision that he has been defamed and that statements which he found
offensive are untrue. He suggested that only two people were “involved” in 2005, but
that more were “involved” in 2010. While the Union argued in final submissions in chief
that it is open to me to find that the grievor was defamed and that I should do so,
Counsel clarified in reply submissions that the Union did not seek a finding that any
named individual defamed the grievor. It would not, of course, have been open to it to
do so where it took the position at the commencement of the hearing that the
grievances allege a failure on the Employer’s part to appropriately investigate and
respond to M’s complaint against the grievor and to the grievor’s complaint then
characterized as one that management and M discriminated against and harassed him,
and where it indicated at the outset of the proceedings that it would seek only a
determination that the Employer failed to fulfill its obligations. The Union confirmed in
final argument that it is “the Employer’s conduct or lack of conduct” that is in issue here
and that it seeks a finding that the Employer failed to respond as required to “continued
issues of defamation presented by the grievor.” The grievor was clear, however, that
what he seeks, and what he has in fact sought for many years, is the opportunity to
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unequivocally “clear his name” with a finding that he is not and was not a stalker. The
Employer confirmed on the record that it does not suggest that the grievor is or was a
stalker. The investigator did not state that he was a stalker. I acknowledge the
grievor’s denial that he is or was a stalker. The Employer took the position, however,
that it is not open to me in the context of the grievances, to determine whether or not the
grievor was defamed, noting in particular that given the characterization of the
grievances at the outset, no individual was provided with notice of these proceedings. I
agree with the Employer that this is not an issue raised by the grievances before me,
and I make no determination as to whether the grievor was or was not defamed by any
individual.
[275] The Union argued, however, and Grievance # 2012-3217 alleges that the
investigation reports themselves are defamatory documents. The Employer responded
that the defence of qualified privilege applies on the facts before me and operates as a
defence to any claim of defamation. The Union acknowledged in reply argument that
this may be so.
[276] The Supreme Court of Canada addressed as follows the defence of qualified
privilege in Hill v. Church of Scientology of Toronto, supra:
Qualified privilege attaches to the occasion upon which the communication is
made, and not to the communication itself. As Lord Atkinson explained in Adam v. Ward, [1917] A.C. 309 (H.L.), at p. 334: . . . a privileged occasion is . . . an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make
it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential. . . .
The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were
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spoken with malice. Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff. However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice. . . .
Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes . . . “any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interest which the occasion created….
Qualified privilege may also be defeated when the limits of the duty or interest have been exceeded. (paras 143 – 146) [277] The investigation reports in evidence purport to set out witness accounts
provided to an investigator appointed to inquire into two complaints filed under the
Employer’s WDHP Policy. These include reports attributed to witnesses that they had
“heard” that the grievor had stalked, that it had “been said” that he stalked, and that
there were “rumours” that he had stalked. The investigator outlined her conclusions in
the reports, which appear to have been forwarded to Mr. Small. At least the report with
respect to M’s complaint was also forwarded to the grievor’s legal representatives.
There is no evidence before me of any broader distribution of the reports. Mr. Small’s
October 2012 letter to the grievor was purportedly copied to Mr. Polya, although the
grievor recalled that Mr. Polya advised in or around March 2013 that he had not seen
such letter or the reports. Mr. Small’s letter similarly appears to be copied to a Ms.
Rodriguez, identified as Advisor, WDHP Section.
[278] I accept that even if the investigation reports are presumed to be defamatory, a
matter that I do not decide or in any way suggest, the defence of qualified privilege
applies. Where witnesses offered their accounts or described their beliefs associated
with alleged past events to an investigator appointed to inquire into WDHP complaints,
and where the investigator charged with the task of investigating the complaints before
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her received those statements and issued reports reflecting such evidence, these were
privileged occasions. There was no evidence establishing that the reports or indeed Mr.
Small’s letter following the reports were distributed any more broadly than reasonably
necessary, or that persons with anything but a legitimate interest in receiving those
documents in fact received them.
[279] In Samsone, supra, the Board stated that “to overcome the defence of qualified
privilege, the union . . . bears the onus of proving malice.” (para 9) There was no
evidence before me that established malice. In all of these circumstances, I find that
even if the investigation reports are presumed to be prima facie defamatory, with no
such finding made, the Employer has established that the defence of qualified privilege
applied to the occasions in question. The Union did not demonstrate malice. Grievance
# 2012-3217 is therefore denied.
[280] In final argument, the Union directed my focus to Grievance # 2012-3211. In
Counsel’s submission, that grievance squarely addresses what he described as the
critical issue before me – that being the Employer’s alleged failure to appropriately
investigate and respond to the grievor’s “continued to this day experience in the
workplace as a victim of defamation.” The Union did not argue that the grievor was
entitled to “relitigate” historical matters already decided by the Board in 2008. While
Counsel suggested that the Board’s 2008 decision is “important background,” he
acknowledged that it “closed a chapter.” In the Union’s submission, however, what the
grievor raised and sought to address in 2011was not “history,” but “current” workplace
experience. Counsel argued in reply submissions that the grievor “presented” to the
Employer at that time “continued issues” of workplace defamation post-dating not only
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the Board’s 2008 decision, but also the 2009 and 2010 grievances dismissed by the
June 2014 interim decision.
[281] The Employer disputed that it was “current” issues of workplace defamation
raised by the grievor at the time of the 2011 WDHP investigation. In its submission, the
evidence was clear that the grievor sought at that time to revisit alleged past issues
already addressed and decided by the Board in 2008. While the Employer
acknowledged the grievor’s dissatisfaction with the outcome of those earlier
proceedings, Counsel argued that in the absence of evidence of current workplace
issues of harassment or defamation, such dissatisfaction did not transform the already
resolved issues of the past into new and unresolved matters triggering current Employer
obligations. The focus of the Employer’s final argument was that the Union did not meet
its onus of demonstrating that allegations of a poisoned work environment or
defamation current as of the 2011 investigation were raised at the relevant time. In the
Employer’s submission, there was no indication by the grievor at the time of the
investigation or even during these proceedings, that the matters raised were anything
but the same historical issues already determined by the Board in 2008. Indeed, in the
Employer’s submission, not only was there no evidence that the grievor complained of
workplace defamation or a poisoned work environment as of the time of the 2011
WDHP investigation, there was no suggestion of such issues current even as of the
time that the 2009 and 2010 grievances were filed either.
[282] The Union noted throughout these proceedings that “the story at the heart of the
grievances” began in 1998, when the grievor believes he was defamed with allegations
that he was a stalker. The grievor gave evidence that he had been “chasing false
statements” for seven years as of the time of the 2005 investigation. In his view,
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however, M had to “give up her source” at that time, allowing him to then identify who he
believed to be the perpetrator of false statements as far back as 1998. He gave
evidence in these proceedings of his frustration and anger that the 2005 investigation, in
his view, resolved nothing and that the Employer then allegedly “blocked” his attempts
to “confront his accusers” and put them “before the Courts.” A consistent theme
permeating the grievor’s communications with the Employer, submissions to the
investigator and evidence in these proceedings was his belief that there was no
resolution of workplace issues during the 2005 investigation, or subsequently, through
the Board’s 2008 decision, and that because of this, those earlier issues remain “open”
and in need of resolution in a manner he views appropriate. While the Board noted in
its 2008 decision that it fully “disposed of” the 2006 grievance before it, and although the
2005 investigation with which the grievor was dissatisfied was at least “an aspect” of the
2006 grievance decided by the Board, the grievor did not and does accept that the 2005
issues before the Board were in fact determined. Rather, he was dissatisfied with what
he characterized as a “forced med-arb,” and was clear that because alleged “false
statement” was not in his view “corrected” then, and because he was denied then what
he believed to be his right to “confront” his accusers, the matters before the Board in
2008 remain “outstanding.”
[283] These proceedings commenced with consideration and determination of the
Employer’s preliminary motion regarding 2009 and 2010 grievances filed by the grievor.
While the Union argued at that time that particulars relating to an alleged 2009 incident
and an alleged 2010 incident in and of themselves demonstrated prima facie sexual
harassment, it also took the position that those incidents were properly considered
contextually. The context which the Union suggested was relevant was not one of
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present circumstances surrounding the alleged 2009 and 2010 incidents, but was of a
historical nature, encompassing the Board’s 2008 without prejudice decision, the 2006
grievance including issues pertaining to the 2005 investigation decided by the Board,
and the “facts” giving rise to that already decided grievance. The Union was not
permitted to “bolster” the 2009 and 2010 incidents relied upon in support of the 2009
and 2010 grievances by revisiting the historical matters already determined by the
Board in 2008.
[284] In closing submissions, Union Counsel characterized the June 2011 grievance as
one “picking up” the “defamation issues” from where the Board’s 2008 decision left off.
What that grievance in fact challenges, however, both on its face and as explained by
the grievor in these proceedings, was the Employer’s delay in proceeding with the
investigation of M’s October 2010 WDHP complaint against the grievor.
[285] The Employer initiated a WDHP complaint on the grievor’s behalf. In October
2011, the grievor was invited to meet with the WDHP investigator, who conveyed that it
would be for him to “steer” his complaint. The grievor subsequently did so through a
series of written submissions delivered to the investigator. The Union argued that the
investigator, and then the Employer, “missed the point,” however, and thought that the
grievor’s complaint related only to matters of discrimination on the basis of sex and
disability, and to sexual harassment. Counsel criticized that the investigator and the
Employer failed to appreciate and deal with the grievor’s primary complaint that he
continued as of that time to be the victim of current workplace defamation. The Union
suggested in final argument that the grievor in fact raised at that time “his ongoing
experience” of being “taunted and humiliated.”
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[286] Although the grievor testified that his complaint was at all times “purely” about his
EHIF, there was no mention of the EHIF or of accommodation issues in the Summary of
Complaint document initially submitted on October 14, 2011. Rather, the grievor
asserted in detail therein that he had been the “target of harassment” in the workplace
as far back as 1993. The undeniable focus of the grievor’s submission was his
dissatisfaction with and frustration about the manner in which such alleged past issues
had been addressed. He expressed the view therein that the 2005 investigation, which
was “an aspect” of the 2006 grievance decided by the Board in 2008, had “failed to
address the harassment and false allegations” to which he had allegedly been subject
“over the years,” and that “many matters” were thus left “unanswered.” He alleged that
the Employer had failed to “clear” him of wrongdoing and had denied him the
opportunity to defend his character and reputation, allowing “false perceptions” and
“wrongful expectations” to linger.
[287] While the grievor’s initial submission delivered to the WDHP investigator did not
address the EHIF issue which he testified was the very basis of his complaint,
clarification was provided through two further submissions. The grievor asserted at that
time that the Employer had failed to accommodate him as required, and noted that
“ASMPP issues . . . relate to the poisoned workplace and history and events and
experiences” as described in his earlier submission addressing matters of the past. He
alleged the “historic failure of the Employer” to address his concerns “over many years
due to the seriousness of the damage caused to his reputation and the harassment.”
While he referenced a “poisoned” work environment, he described no current workplace
experience. Rather, he asserted that the alleged past “destruction” of his character that
had not been resolved in the manner he considered appropriate left him currently “at
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risk.” He expressed the view that “the risk” resulted from “the ability for malfeasance by
staff to discredit me, and proximity to individuals that have a role in the destruction of
my character and reputation.”
[288] The grievor reiterated that same position in his December 2011 response to the
draft investigation reports. He was again clear at that time that it was what he viewed
as the Employer’s failure to adequately resolve matters in 2005 that “precipitated the
current complaints.” He suggested that “best measures” would have been to “complete
the investigation in 2005 and provide disclosure identifying all personnel that
participated in false statement.” He stated that he had “the right to be cleared of the
false statements” and that the “risk for false statement” continued because the
“statements have not been corrected.” He expressed the view that “the damage caused
by defamation . . . continues with an ongoing effect in the workplace,” suggesting that
“false statements must be set straight” as they affected how his actions were
“perceived.” He expressed the view that the Board’s 2008 without prejudice decision
did not resolve anything, as “no one has ever been accountable for . . . the false
statement,” and that the issues therefore “remain outstanding.”
[289] While the Union asserted that the critical issue here is the Employer’s alleged
failure to investigate and respond to the grievor’s 2011 complaint of current workplace
defamation, the evidence unequivocally reflects that what the grievor in fact presented
at the time was a steadfast belief that past issues already determined by the Board in
2008 remained open for him to pursue because that resolution, in his view, was not
adequate. Certainly the grievor was clear in alleging that the Employer was, as of late
2011, in breach of its duty to accommodate. He attributed such alleged need for
accommodation, not to an experience of current harassment or defamation raised or
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described at that time and not to an experience of ongoing taunting and humiliation as
alleged by the Union, but to the Employer’s alleged failure to resolve past issues,
decided by the Board in 2008, in the manner which he believed to be appropriate.
[290] The Union suggested as well in reply argument that such past historical issues
“produced poison in the workplace that continued” and that this was “presented” to the
investigator in 2011. The grievor acknowledged that what he characterized as false
statements “play out” in part in his “head.” While he suggested that they also “play out”
in “reality,” there was no evidence of such current alleged “reality.” Rather, the grievor
asserted the belief that the “false statement” of the past remained an “open issue” in
need of correction. Although Union Counsel commented that the grievor “feared” in
2011 that “co-workers may not have a good view of him,” such “fear” was associated
not with a current reality described at any time, but with the grievor’s steadfast view that
the Board’s 2008 decision did not determine the matters before it in the manner he
believed appropriate.
[291] I agree with the Employer that the fact that the grievor believed and complained
in 2011 that the issues of the past had not been adequately resolved either through the
2005 investigation, or through the Board’s 2008 decision, did not transform those past
matters “disposed of in full” into new or current events triggering new and current
Employer obligations.
[292] Further, while the grievor complained that alleged “false statement” of the past
“plays out” in both his “head” and reality, and while the Union argued that past historic
issues “produced poison . . . that continued,” in the absence of evidence of current
workplace issues, the grievor’s continued dissatisfaction with the 2008 resolution did not
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re-cast those already addressed and already resolved issues of the past into new
events demanding an Employer response.
[293] I have, however, considered not only the complaint presented by the grievor in
2011, but also his evidence in these proceedings as to what he sought to address at
that time. It bears noting here that the grievor expressed the view both through his
testimony and in written communications over a number of years, that he has been
denied the right to be heard in the past. While I need not comment on that belief, I note
that in these proceedings he has clearly been heard. Union Counsel ensured that the
grievor had every opportunity through extensive examination in chief to offer a full
account of his experience. Particularly notable, was Union Counsel’s unopposed
invitation to the grievor in examination in chief to agree that he “continued currently to
experience workplace defamation.”
[294] Even with every opportunity and indeed invitation to describe an experience of
workplace defamation current as of the 2011 WDHP investigation, no such evidence
was forthcoming. The grievor did not describe that he was the victim of “current and
ongoing” workplace defamation as argued by the Union, but rather, reiterated that
articulated in his 2011 WDHP submissions, that he sought to revisit and address what
he believed to be unresolved issues of the past.
[295] The grievor agreed in cross-examination, that he understood the investigation
reports to largely describe events that pre-dated M’s departure from the workplace, and
in some instances, matters preceding 2005. He criticized that the investigator treated
his pre-2005 evidence as “stale dated,” and that he was not permitted to “challenge” the
2005 investigation and its conclusions.
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[296] Noteworthy was the grievor’s evidence in cross-examination pertaining to his July
28, 2011 correspondence to Ms. Maccarone. He was clear at that time that he sought
accommodation to “address the risks posed by . . . false statement.” He confirmed in
cross-examination that other than the 2011 investigation in and of itself, the “false
statement” to which he referred in July 2011 pre-dated M’s departure from the
workplace in June 2010. He explained that he was dealing with “the ability to catch a
rumour,” suggesting that “once they exist, they exist.” He asserted that “it” therefore
“has to be aired fully.”
[297] In addressing his need for accommodation, the grievor further testified that his
“issue” was not “technically” related to night shift, but rather, to the need to monitor co-
workers. He asserted that what was regarded as “patrol” for others had been
characterized as “stalking” by M in 2010, by the Employer in the context of the 2005
investigation, and by another employee in the 1990’s. He described that “the issue”
was thus how his actions “might be interpreted” by others, not because of current issues
described, but because of alleged past defamation which had “destroyed” his
reputation. As noted, he stated that “false statements play out” in both his “head and
reality.” He emphasized that there was “nothing fresh about this,” but that the Employer
had put him through this for “so many years” and failed to “correct it.” As a result, he
believed that co-workers might view him through “tinted glasses.” When asked about
his current experience in the workplace, he explained that “until there is a decision,” and
until he has the opportunity to face his “accusers’” and hold them accountable, “it is
always there.” As noted in December 13, 2011 correspondence to Ms. Maccarone, he
was of the view that the Employer had to “get at the root cause of the issues.” Similarly,
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he urged the Employer through correspondence of the same date to Ms. Tomkinson to
hold “individuals responsible” for “the workplace history.”
[298] It is in the context of such evidence, and indeed the grievor’s evidence in its
entirety, that I consider the Union’s assertion that the WDHP investigator
misapprehended the nature of the complaint before her, and focused almost exclusively
on issues of alleged discrimination on grounds of sex and disability, and sexual
harassment, rather than appreciating that what the grievor presented was his
experience of current workplace defamation. I consider first the grievor’s criticism that
the investigator failed to decide what he suggested was the “straightforward EHIF issue”
insofar as she concluded that “the issues of whether or not H has a disability and
limitations for which accommodation is required and whether he cannot perform the
night shift duties as a CO remain outstanding.” The evidence in these proceedings of
course established that the October 7, 2011 EHIF was only submitted to the Employer
in early November. In this context, the investigator’s determination that the matter
remained “outstanding” did not amount to a failure to address the question put to her.
[299] Further, while the grievor commented that the investigator failed to determine his
allegation of reprisal against Ms. Maccarone, the Union was clear in final argument that
this is not in issue before me.
[300] Most fundamentally, however, I have considered the Union’s argument that the
investigator failed to appropriately investigate and determine issues of current
workplace defamation allegedly raised by the grievor. The evidence did not establish
that this was the grievor’s complaint at the time. The investigator acknowledged the
grievor’s “belief of . . . ongoing personal harassment (and) poisoned work
environment,” but noted as do I, that the issues raised were not in fact “ongoing” and
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had been addressed and resolved in 2008. While the Union vigorously argued
otherwise, the grievor’s evidence did not substantiate the claim advanced on his behalf.
Further, insofar as the Union suggested in reply argument that past and already dealt
with events “produced poison that continued,” the grievor complained of no current
workplace experience, but rather sought to re-visit issues already decided on the basis
of fears that the issues already addressed by the Board in 2008 may affect how he
continued to be perceived in the workplace. While he acknowledged that this was
somewhat in his “head,” and while he was clear in his desire to address the already
resolved matters of the past in a manner that he believed appropriate, he did not
complain in 2011 of anything current.
[301] The grievor was emphatic both in his testimony and in written communications
with the WDHP investigator and the Employer that he had “the right to be cleared of
false statements” in 2005, but that these were not, in his view, “corrected” and no one
held “accountable.” He was clear that his 2006 grievance before the Board in 2008 was
“with respect” to the 2005 investigation. He believed that he had “a right for a full
determination” and that he “was denied that right” in the “forced” med-arb in which the
parties agreed to participate. Most importantly, he has been unwavering in his view that
“the matter remains outstanding.”
[302] While the grievor’s sincerity is not doubted, he has failed to appreciate and
respect the fundamentally important labour relations reality that the Board’s 2008
determination of his 2006 grievance through a process agreed to by the parties was in
fact a final determination of the matters before it then. The finality of that decision was
not contingent upon his approval of the ultimate outcome and must be respected.
Although the grievor believes that past matters raised were inadequately addressed, his
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opinion in that regard does not negate that the Board fully disposed of his 2006
grievance, which included issues pertaining to the 2005 investigation, through its 2008
decision. Further, while the grievor remains dissatisfied with how alleged “false
statements” from the past have been addressed, his dissatisfaction does not recast past
and already decided matters into a new and current workplace experience, in the
absence of evidence of current events giving rise to Employer obligations. The grievor
was clear that the Employer’s failure to resolve matters in a way he considered
appropriate in 2005 “precipitated the current complaints.” He did not present to the
Employer in 2011 or to the Board in these proceedings a complaint of current workplace
harassment. Nor did he do so through his 2009 and 2010 grievances dismissed by
interim decision. The grievor has failed to accept that past matters decided by the
Board in 2008 are just that – decided. His dissatisfaction with that process or with the
outcome of the process does not permit him to revisit or to require that the Employer
revisit such matters already “fully disposed” of by the Board.
[303] The Union and the grievor criticized Mr. Small’s October 2012 response to the
grievor. Insofar as the grievor questioned whether Mr. Small’s October 17 letter
received only later in the month had been “back dated” and insofar as Union Counsel
suggested that this might reflect bad faith on the Employer’s part, there was no
evidence before me to support such speculation.
[304] Mr. Small advised the grievor of the Employer’s disposition of M’s complaint and
of his complaint of discrimination on grounds of sex and disability, and harassment.
While he did not address a claim of current workplace defamation, no such claim was
advanced by the grievor at the time.
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[305] Insofar as Grievance #2012-3211 alleges that the Employer violated its
obligations in failing to investigate and respond to the grievor’s 2011 complaint of
ongoing and current workplace defamation, the evidence is unequivocally clear that this
was not the complaint presented by the grievor. While the Union forcefully argued that
the investigator and the Employer failed to appreciate the issues the grievor raised, and
thus failed to investigate and respond to them in an appropriate fashion, the evidence
adduced by the grievor did not support the argument advanced on his behalf. The
Union also argued that past events, already resolved, “produced poison in the
workplace that continued,” and that this was raised during the 2011 WDHP
investigation. While the grievor was clear and steadfast in his belief that he continues to
“chase ghosts” with respect to the events of the past that he believes to have been
unsatisfactorily addressed, and while he asserted that the “damage caused” by alleged
past defamation “continues with an ongoing effect” in the workplace, and that the “scope
of” such alleged “false statement” affects how his actions are perceived, there was no
evidence before me of current workplace issues. I accept the Employer’s submission
that the Union has not demonstrated that the grievor advanced anything more through
his 2011 complaint than a desire to revisit past history already dealt with by the Board’s
2008 decision. Given the grievor’s evidence, the Union has not established that the
Employer failed to investigate and respond in the manner required to his complaint of
workplace defamation or a poisoned work environment current as of 2011. Insofar as
Grievance 2012-3211 alleges otherwise, it is denied.
[306] Grievance # 2012-3218 alleges that the Employer violated the grievor’s rights “by
failing to adhere to the WDHP Policy by not notifying the grievor of any discipline or
action that might/could be taken as a result of the decision of the investigator.” Through
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its particulars, the Union criticized that there were no “next steps” taken after Mr. Small
corresponded with the grievor in October 2012. I have already reviewed and rejected
the Union’s submission that the WDHP Policy forms part of the collective agreement. I
recognize, however, that Mr. Small advised the grievor in October 2012 that he would
be contacted by Mr. Polya “to discuss next steps.” That had not happened by October
31, 2012 when the grievance was filed, and post-grievance evidence established that it
did not subsequently happen. Indeed, the grievor’s evidence established that Mr. Polya
advised him in March 2013 that he had not seen Mr. Small’s October 2012
correspondence. While I accept that the follow-up that the grievor was promised did not
materialize, I heard no evidence or argument that would permit the conclusion that the
collective agreement was breached in that respect or by any failure to “adhere to the
WDHP Policy by not notifying the grievor of any discipline or action that might/could be
taken.” Grievance # 2012-3218 is therefore denied.
[307] The Union argued as well in final submissions, however, that quite apart from the
complaint presented by the grievor in the course of the WDHP investigation, the
investigation reports themselves put the Employer on notice that the grievor was as of
that time the victim of current workplace defamation. The Employer disputed that there
was anything in the reports that could properly be viewed as alerting it to current
workplace issues, and emphasized that the Union bore the onus of establishing
otherwise. I have carefully considered the reports and the submissions of Counsel.
[308] As noted by Union Counsel, the investigator attributed to certain witnesses
comments that “it has been said” that the grievor stalked, that one had “heard that. . . H
stalked,” and that there “were rumours” that H had stalked. Such comments were
included in the investigation reports. The grievor found this offensive and disconcerting
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given his denial that he has ever been a stalker. The Union argued that such comments
put the Employer on notice that the grievor was continuing as of the time of the
investigation to experience “persistent” and “ongoing” workplace defamation, and that
the Employer was obliged in that context to act and yet failed to do so. While the Union
accepted that statements made by witnesses to the WDHP investigator and by the
investigator in her reports might be protected through qualified privilege, Counsel
argued that the reports put the Employer on notice that defamatory statements were, at
the time, made in the workplace, and that these were not subject to qualified privilege.
The Union acknowledged as well the Employer’s suggestion that it cannot constrain the
views held by employees and communicated to the investigator. The important
distinction however, the Union suggested, was that it was for the Employer to ensure
that defamatory views were not expressed in the workplace. Whether or not the
comments recorded in the investigation report in fact reflected that the grievor was
subject at that time to what Union Counsel referred to as “defamatory gossip” in the
workplace was in dispute. I have considered the reports, and having done so, I do not
accept that the comments referenced therein suggest or demonstrate that the grievor
was at the time in question subject to such alleged “defamatory gossip.” As
acknowledged by the Employer, it may be that “folks” still “held their beliefs about 2005
events” and communicated those to the investigator when asked. The fact that beliefs
regarding past events were reported to the investigator in the context of the WDHP
investigation, did not give rise to new workplace events triggering Employer obligations.
Further, and more to the Union’s point, the recorded comments attributed to witnesses
suggesting that it has at some point “been said” that the grievor stalked, that one had
“heard” that he stalked, or that there “were rumours” that he stalked, do not demonstrate
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that defamatory statements were currently “paddled around” the workplace as
suggested by the Union. I agree with the Employer that such comments did not put the
Employer on notice that “people were saying things about the grievor” in the workplace
at that time. I am therefore not satisfied that the Union has established a factual basis
in such recorded comments upon which the Employer was obliged to act.
[309] I note, however, and view differently the following comment attributed by the
investigator to Witness #6:
(I)n the workplace, . . . H is nicknamed “S” and “HH” and there is graffiti in
the washroom about him. [310] As emphasized by the Employer, I heard no evidence from the grievor that he
was the victim of harassing nicknames or graffiti as of the time of the 2011 WDHP
investigation. When cross-examined about a reference in the report to graffiti, he was in
fact unable to recall what the relevant timeframe was. While he commented on graffiti
in WDHP submissions in late 2011, he noted therein that graffiti had “started to appear
at Millbrook in 1993” and that it was only in 2005 that “the story” behind it was
“identified.” The Employer suggested that the grievor accepted that when graffiti was
brought to its attention, it took action to deal with it. I also note that the grievor was
clear in cross-examination that other than the accommodation issues, and other than
the reports themselves, he understood that the events described in the reports pre-
dated M’s 2010 departure from the workplace. Despite the Union’s vigorous argument
in these proceedings that the grievor himself complained of current workplace
defamation in the Fall of 2011, the evidence proved otherwise. Indeed, as noted by
Employer Counsel, although the grievor clearly sought to subject the draft investigation
reports to critical scrutiny, he did not take issue with the investigator’s conclusion that he
sought to rely on “stale dated” events.
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[311] While all of that is acknowledged, there is no mistaking that the investigator
recorded in the report provided to the Employer that a witness indicated that the grievor
was at that time the subject of workplace nicknames suggestive of being a stalker, and
of washroom graffiti. The grievor, afforded only days to respond to the draft
investigation reports, noted this at least in part, commenting in his reply to the drafts that
the investigator had recorded references to “S and HH nicknames.” There was,
however, no evidence before me that the Employer made any inquiry as to whether or
not the report attributed to Witness # 6 was in fact an accurate and truthful account of
what was currently taking place in the workplace.
[312] While the Employer argued that the Union failed to meet its onus of establishing
that there was “anything current” brought to its attention through the investigation
reports, I accept the Union’s submission that at least this statement attributed to
Witness #6 demanded the Employer’s attention and inquiry to determine if the recorded
remarks were in fact true at the time. In the absence of evidence of any inquiry by the
Employer upon receipt of such report, it is my conclusion that the Employer failed in this
respect in its obligation to respond appropriately to an allegation of workplace
harassment, which required it in these circumstances to at least ask questions. I am
satisfied that the Employer thereby breached article 9 of the collective agreement.
Grievance # 2012-3211 is in that respect alone therefore upheld.
[313] Given that determination, I consider the Union’s remedial requests. In doing so, I
accept and affirm the Union’s submission of the importance of attentiveness and
responsiveness on the Employer’s part where alerted to matters such as that reported
by Witness #6. The fact that it was not the grievor who raised such issues with the
Employer in no way relieved the Employer of its obligation to inquire into a recorded
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report of harassing workplace nicknames and washroom graffiti, however that report
was received.
[314] I have considered the jurisprudence relied upon by the parties in determining
what, if any, remedial measures ought to be ordered here. In OPSEU (Union Grievance
re Tardiel et al.) and Ontario (Ministry of Community Safety and Correctional Services),
GSB # 2005-1443, cited in Ranger, supra, the Board awarded damages to a grievor
who suffered from racial discrimination over a number of years and who was a recipient
of vicious hate mail threatening his death. It stated as follows:
Human dignity is of fundamental value in a democratic society. Harassment and discrimination significantly impair an individual’s dignity . . . . He deserves the impact of the harm to his dignity be recognized in the damages awarded to him, albeit for the Employer’s failure to take all reasonably necessary steps to prevent
that harm. (see Ranger, para 38) [315] In Hyland, supra, the Board awarded general damages and damages for mental
anguish for the failure to accommodate, having found that the grievor experienced
“humiliation, hurt feelings, a loss of dignity and victimization.” (para 48)
[316] In ADGA Group, supra, the Divisional Court stated as follows:
Among the factors that Tribunals should consider when awarding general damages are humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment. (para 154)
[317] The Union urged me to also consider the Board’s analysis in Ranger, supra. The
Board there declined to order punitive damages where it found that the Employer’s
conduct was “not malicious or outrageous.” (para 17)
[318] While the determination of appropriate remedy is one necessarily tied to the
circumstances of a given case, I find of assistance the Board’s decision in Groves,
supra. The grievance there alleged in part discrimination and harassment on grounds
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of disability. The evidence established that the grievor reported a November 2008
incident to the Employer. Subsequently, he advised the Employer that he had found a
Special Olympics poster with his name on it in the workplace, and felt humiliated by this.
He also alerted the Employer to the fact that he was called “retard” and “idiot” when
walking down hallways. The Board concluded that although the Employer investigated
the November 2008 incident, it failed to broaden its investigation to encompass the later
issues raised by the grievor. In those circumstances, the Board found that the
Employer failed to “meet its obligation to investigate in a complete and thorough manner
the real complaints of the grievor.” (para 97) It accepted the grievor’s evidence that he
felt “humiliated by being called a ‘retard’ and an ‘idiot,’” and that his “enjoyment at work
and his security at work were lessened not only by the derogatory comments but also
by the indifference of his Employer.” (para 100) On the basis of those findings, the
Board awarded the grievor $1500 damages for loss of dignity and mental distress.
[319] The facts before me parallel in some respects those before the Board in Groves,
supra. Here, the Employer initiated a WDHP complaint on the grievor’s behalf. The
grievor “steered” that complaint through his 2011 submissions, and the Employer
undertook an investigation. For the reasons already addressed, I accept the Employer’s
argument that the complaint presented by the grievor was largely of a historical nature,
reflecting his determination to revisit the resolved issues of the past. That historical
focus was clearly reflected in the forty-nine page investigation report issued to the
Employer. The Union has established, however, that the Employer failed to pay heed to
one comment in that report which was on its face suggestive of a current, and not
historical, workplace issue. The grievor pointed this out in his response to the draft
reports. The Employer, however, failed to respond to the account attributed to Witness
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# 6 in the same way that it failed in Groves, supra, to inquire into matters raised by the
grievor subsequent to the filing of his initial complaint.
[320] There are, however, clear distinctions between the facts here and those before
the Board in Groves, supra. Unlike the evidence before the Board in Groves, there was
no evidence before me that the grievor was in fact the victim of vexatious nicknames
and washroom graffiti and that he suffered harm from such experience as of the time of
his 2011 WDHP complaint. Nor did I hear evidence that he suffered from the
Employer’s failure to be attentive to the comment attributed to Witness # 6 as was the
case in Groves, where the Board was satisfied that the Employer’s “indifference”
caused harm.
[321] The Union asked me to conclude that there was an “egregious” breach of
responsibilities here where the Employer allegedly failed to address the grievor’s reports
of “ongoing taunting and humiliation.” It argued as well that the grievor suffered pain,
humiliation and loss of dignity given an experience of being “repeatedly called a stalker.”
While the Employer’s inattentiveness and failure to inquire into the one recorded
comment in the investigation report is not to be taken lightly, the evidence did not
demonstrate the “egregious breach” and “significant harm” alleged by the Union. Nor
was its breach in failing to inquire into the truth of a witness account included in the
investigation report one properly characterized as “malicious or outrageous.”
[322] I accept, however, that the Employer had an obligation to be attentive and
responsive to a recorded witness comment suggestive of current workplace graffiti and
vexatious nicknames targeting the grievor. I accept that it failed to fulfill such obligation
and thereby breached the collective agreement. I am satisfied that in all of the
circumstances, an order of general damages in the sum of $1000 (one thousand
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dollars) is appropriate. I order that the Employer pay such damages to the grievor. I am
not convinced in the circumstances, however, that an order for damages for pain and
suffering or punitive damages is warranted, or that this is an appropriate case in which
to order that the Employer undertake “corrective action” as was requested.
CONCLUSIONS
[323] For all of the above reasons and to the extent set out herein, Grievance #’s 2011-
3211 and 2011-3212 are upheld. I order the Employer to compensate the grievor for all
scheduled hours of work for November 18, 2011 for which he has not been paid, and for
sick pay in the amount to which he was contractually entitled for November 14 and 15,
2011 if not already paid.
[324] For all of the above reasons, Grievance # 2012-3211 is upheld in part to the
extent set out herein. I order the Employer to pay to the grievor the sum of $1000 in
general damages. For all of the above reasons, Grievance # 2012-3211 is in all other
respects denied.
[325] For all of the above reasons, all other grievances are denied.
[326] My jurisdiction is retained to assist the parties with the implementation of this
decision. As requested by Counsel, it is retained as well with respect to Grievance #’s
2011-3211 and 3212 as addressed herein. As also agreed by Counsel, it is retained to
address and determine any claim for special damages that the Union may advance in
relation to grievances upheld herein.
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[327] I thank both Counsel for their assistance throughout these proceedings.
Dated at Toronto, Ontario this 4th day of August 2017.
Mary Lou Tims, Arbitrator