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HomeMy WebLinkAbout2017-0109 et al.Ceresato.18-07-10 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# 2014-0109; 2014-2211 UNION# 2014-0162-0004; 2014-0162-0021 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Ceresato) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Natalie Dehaney-Stewart Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Adrienne Couto Liquor Control Board of Ontario Counsel HEARINGS January 28, 29; February 11; March 3, 4, 10; July 20, 26; September 13; October 5, 6, 12; November 25, 2016; February 1, 2, 22, 23; March 6, 7, 28; May 10, 15, 31; June 21; July 20, 2017 -2- DECISION [1] I have two grievances before me filed on behalf of Ms. Brenda Ceresato. The events giving rise to these grievances arose during her employment as a casual Customer Service Representative (“CSR”) at LCBO Store #278 at the Town of Tecumseh (“Tecumseh”) which is located east of Windsor. In a grievance dated January 17, 2014, Ms. Ceresato claims that she was being harassed and bullied by her manager, Mr. Sylvain Pitre. The remedy she requested in her grievance is that Mr. Pitre be removed from any interaction with unionized employees. By letter dated June 11, 2014, Mr. Brian Parker, District Manager, terminated Ms. Ceresato’s employment for her conduct on April 29 and May 1, 2014, which included uttering threats of violence against Mr. Pitre. In a grievance dated June 12, 2014, Ms. Ceresato claims that she was unjustly terminated by the Employer. As disclosed by the events that gave rise to these grievances, the primary focus of this proceeding was on the nature of the working relationship between Ms. Ceresato and Mr. Pitre. [2] The Union called evidence of numerous incidents to support the claim that Mr. Pitre engaged in harassing and bullying conduct against Ms. Ceresato. It takes the position that the harassing and bullying conduct is relevant when assessing the conduct by Ms. Ceresato which the Employer relied on to terminate her employment. The Union concedes that the threats of violence made by Ms. Ceresato against Mr. Petri and other aspects of her behaviour on April 29 and May 1, 2014, constitute serious and unacceptable conduct and constitute cause for discipline. However, having regard to the circumstances of her misconduct and certain mitigating factors, including the harassment and bullying by Mr. Pitre, the Union takes the position that the termination of Ms. Ceresato’s employment was not warranted. During its opening statement, the Union suggested that an appropriate remedy for the discharge grievance could be the reinstatement of Ms. Ceresato to her former employment without compensation. During final argument, the Union submitted that Ms. Ceresato should be reinstated to employment with a suspension that could range from two weeks to as high as ten months, with some compensation in recognition of the length of her absence from the workplace, and if appropriate, with other conditions that are just and reasonable. The -3- Union submitted in the alternative that I should award Ms. Ceresato damages in lieu of reinstatement if I concluded that reinstatement was not a viable option in the circumstances. [3] The positions taken by the Employer on the relevant issues are straightforward. It argued that the evidence does not support the conclusion that Mr. Pitre harassed or bullied Ms. Ceresato. It also argued that the Employer had just cause to terminate Ms. Ceresato’s employment and that there were no mitigating circumstances that would warrant the substitution of a lesser penalty with the result that her discharge grievance should be dismissed. [4] The hearing of these grievances required 25 hearing days, with 5 of the days devoted to final argument. The oral and documentary evidence was extensive for each grievance. The Employer called the following 10 witnesses: Mr. Parker; Mr. Pitre; Ms. Michelle Bruce, Ms. Eilish Fockens and Ms. Linda Deneau, Managers; Mr. Scott Cameron, Assistant Manager; Ms. Terri Fecteau, Ms. Melissa Leary, Ms. Alana Bialek and Ms. Carolee Brown, employees. The Union called the following 4 witnesses: Ms. Ceresato, Mr. Guy Jeremschuk, Local Union President at the relevant time; Ms. Carly Bell and Ms. LeeAnne Munn, employees. Given that the events giving rise to the grievances primarily involved Ms. Ceresato and Mr. Pitre, their testimony alone required 10 hearing days. In determining the facts, I carefully reviewed all of the evidence and I considered the submissions of counsel on how the conflicts in the evidence should be resolved. I resolved such conflicts by utilizing the usual tests, which included an assessment of what was most probable in the circumstances, having regard to the totality of the reliable evidence. [5] I will begin by setting out the facts that provide the context for assessing the harassment and bullying allegations made by Ms. Ceresato against Mr. Pitre. To a certain extent, this factual context is also relevant when reviewing the events which led to the termination of Ms. Ceresato’s employment. I will then address the circumstances relied on by the Union to support the claim that Mr. Pitre harassed and bullied Ms. Ceresato. And finally, I will review the facts that are particularly relevant to the -4- termination of Ms. Ceresato’s employment and then address the issues of whether the Employer had cause to terminate her employment and whether there is a sound basis for mitigating the penalty of discharge. Given the extensive evidence, I have made an effort to be as concise as possible in setting out the relevant facts and in addressing the issues before me. [6] Ms. Ceresato started working for the Employer as a casual CSR at Store #34 at Windsor. Her seniority date is September 16, 2004. After working for more than 7 years at Store #34, she was transferred to Store #278 at Tecumseh by Mr. Parker in February 2011. Neither Mr. Parker nor Ms. Ceresato could recall the reason for this transfer. When her employment was terminated in June 2014, Ms. Ceresato had been employed by the LCBO for almost ten years, had a discipline free record and was 54 years of age. [7] The CSR position description describes the purpose of the position as follows: “To provide prompt and courteous customer service, merchandising and inventory management of product, store security and also social responsibility regarding the sale of the product. To assist in the business and facilities management of the store and inventory management and handling of product.” Besides the general aspect of serving customers, the specific job functions of a CSR include performing cashier duties, the execution of merchandising displays, ordering product, unloading, storing and rotating stock, and contributing to the day-to-day maintenance and cleanliness of the store such as the regular cleaning of washrooms. [8] Ms. Shyshak was the Manager of Store #34 when Ms. Cerasato worked there and it appears that she and Ms. Ceresato had a good relationship. Even so, Ms. Ceresato did have some issues during her tenure at Store #34. One issue was with punctuality as she was often late reporting for her assigned shift. Ms. Ceresato conceded that she often lost track of time. As well, there were instances when Ms. Ceresato did not communicate or interact appropriately with customers and co-workers. At times she was abrupt and impatient with customers. Ms. Ceresato attributed her impatience with customers while on cash to anxiety. She sometimes got upset when a -5- co-worker on cash buzzed for help and when a shift leader assigned certain tasks to an employee with less seniority. In her 2008 and 2010 Performance Appraisals (“PAs”), Ms. Shyshak noted that Ms. Ceresato had to improve the manner in which she communicated with co-workers. Ms. Ceresato performed best when she worked on her own, but recognized that she had to improve her interaction with co-workers and become a better team player. Ms. Cerasato’s performance summary rating on these two PAs was a 3 – Solid Performance, which is in the middle of the range. While at Store #34, Ms. Ceresato regularly worked 20 hours per week. [9] Ms. S. Wilson was Ms. Ceresato’s Manager for about three months once Ms. Ceresato had transferred to Store #278 in 2011. During this brief period, Ms. Wilson had occasion to call Ms. Ceresato into the office to speak to her about her attitude. Ms. Wilson advised Ms. Ceresato to come to her if she encountered a problem at work rather than taking out her frustrations by yelling at a co-worker. Mr. J. Dunlop filled in when Ms. Wilson was no longer the Manager at Store #278. It was noted in the PA that he completed in August 2011 that continuing objectives for Ms. Ceresato included a more positive interaction with co-workers, more patience with customers while on cash and giving herself more time to get to work for her scheduled start time. [10] Mr. Pitre was hired by the Employer in late June 2011. After a period of training, he commenced his duties as manager of Store #278 by early August 2011. Given the timing of Ms. Ceresato’s discharge, the manager-employee relationship between Mr. Pitre and Ms. Ceresato existed for less than three years. [11] Ms. Ceresato developed an interest in and started to study wine. She started a two year Master Taster program at Niagara College in January 2012, and received a Certificate of Achievement in August 2013. Mr. Pitre agreed to her request to change her casual availability so she could take the necessary Monday evening courses to complete the program. He also supported her six Tuition Assistance Applications under the LCBO’ Continuing Education Financial Assistance Program. The LCBO reimbursed her for the cost of the program. Ms. Ceresato’s objective was to become a Product Consultant (“PC”) with the LCBO. As provided in the PC position description, a PC -6- provides “LCBO clientele and staff with an advanced level of comprehensive product knowledge in the full range of beverage alcohol products listed by the LCBO…” There is a PC position in four of the Windsor stores that have a vintages section, including at Store #278. Given her goal to be a PC, there is some advantage to be in a store with a vintages section since she could easily attend tastings and have easy access to her store’s PC. Ms. Ceresato’s previous store, Store #34, does not have vintages section or a PC position. Ms. Ceresato had applied a few times for PC positions, but needed more work and was therefore unsuccessful. Mr. Pitre and Mr. Parker encouraged and assisted her in her efforts to gain product knowledge and to secure a PC position. She was scheduled to attend a Product Knowledge Testing at Toronto on May 5, 2014, for vacant PC positions. This opportunity was cancelled once she was suspended pending an investigation. [12] Beginning in at least 2012, Mr. Pitre had to address a number of issues with Ms. Ceresato. Many of these issues involved her attendance and communication with co- workers. The issues that were addressed by the Employer are referenced in letters that were sent to Ms. Ceresato by Mr. Pitre or by Mr. Parker after a meeting with Ms. Ceresato and a Union representative. On March 17, May 8 and on July 14, 2012, Ms. Ceresato displayed her angry temper in the workplace. On March 17, 2012, Ms. Ceresato angrily walked out of the office when Mr. Pitre asked her to remove food from the office and to refrain from eating in there. Mr. Pitre was applying a rule about food in the office that applied to everyone. Ms. Ceresato remained in an emotional state after leaving the office and some of her co-workers advised Mr. Pitre that her conduct scared them. On May 8, 2012, Ms. Ceresato came into the office at the start of her shift, checked the shift schedule and became upset and started swearing because she was not happy with the shifts she had been assigned. She threw the schedule on the desk and she threw a tray on a desk causing most of the change to fly from the tray. After picking up the money, she left the office yelling in the presence of customers and co- workers and returned to the office five minutes later to count her tray. She calmed down and started work after a co-worker took her outside to talk to her. On July 14, 2012, Mr. Pitre asked Ms. Ceresato to advise him if she would report for work on Sunday because she had indicated that she was not sure about working that day -7- because she was not feeling well. A short time later Ms. Ceresato directed some angry comments to a co-worker in the stockroom and shoved a cart against other carts. The co-worker told Mr. Pitre that she felt threatened by Ms. Ceresato’s conduct. Mr. Pitre met with Ms. Ceresato and the co-worker in his office wherein he tried to calm Ms. Ceresato down and told her that her conduct was not acceptable. As a result of these incidents, Ms. Ceresato received a non-disciplinary coaching letter in which she was advised that co-workers felt concerned about working with her and that her behaviour was not acceptable in the workplace. [13] Mr. Pitre issued non-disciplinary letters to Ms. Ceresato dated May 28, 2012, and July 27, 2012, relating to her frequent late arrival for her scheduled shift. At a meeting at the District Office on May 28, 2012, Mr. Pitre and Mr. Parker addressed this issue and explained why it was important for her to be on time for her shift for operational reasons. Specifically, in his May 28th letter, Mr. Pitre wrote, “When you (or another employee) are late for work, it can upset the efficiency of the stores operations and put daily tasks behind schedule. Further, repeated lateness can affect the morale of the staff.” Ms. Ceresato indicated that she had elder care issues with her mother who lived in Leamington. Ms. Ceresato was advised at the meeting that she had the option of adjusting her availability Monday through Thursday. Further incidents of lateness prompted Mr. Pitre to issue the non-disciplinary letter of counsel dated July 27, 2012. These issues and others were reflected in the PA Mr. Pitre completed on March 22, 2013. Improvement was noted in the areas of Communication/Relationships, Productivity, and Punctuality/Attendance. [14] At a meeting on July 27, 2012, Mr. Parker and Mr. Pitre met with Ms. Cerasato to address the issues of lateness and her displays of anger in the workplace. As reflected in a letter to her from Mr. Parker dated July 30, 2012, Ms. Ceresato requested and was granted two weeks off “to seek assistance and to facilitate change” with regards to the anger issue. She was advised that more time off could be approved with supporting documentation. In the letter, Mr. Parker noted as follows: “I remind you that both of these issues were handled by way of Letters of Counsel which is non-disciplinary. They are in fact formal letters of coaching which address the need for improvement.” Just -8- prior to the meeting of July 27, 2012, Mr. Parker had made the decision to transfer Ms. Ceresato from Store #278 back to Store #34, effective July 30, 2012. This decision was communicated to her in a letter dated July 26, 2012. For various reasons, including the presence of vintages products at Store #278, Ms. Ceresato and her Union representative asked Mr. Parker not to follow through with the transfer. Mr. Parker decided to cancel the transfer after he considered the matter further. [15] Ms. Ceresato recognized that she did have issues with anger management. She attributed this to her family situation where yelling and screaming in the household was not uncommon, particularly by her father. Mr. Parker understood that Ms. Ceresato would use the two weeks off she had requested to sort out some of her personal issues. She was off work from July 30, 2012, until August 13, 2012. A doctor’s note indicated that she was under “a physician’s care” during these two weeks. However, Ms. Ceresato did not seek assistance for her anger management problem or for any other issues during her two weeks off work. She indicated that she believed she could handle these issues on her own. Her thinking in this regard proved to be wishful thinking. [16] After returning in mid-August from her two weeks off, Ms. Ceresato was off work again from August 21 until September 22, 2012, for surgery necessitated by a fracture to her right hand when she fell off a horse. When she returned to the store, she was on modified work until October 20, 2012, because she was unable to unload or carry boxes. It was not long after she returned to work that her inappropriate conduct with customers and anger issues resurfaced. On October 19, 2012, Mr. Pitre received a call from a customer complaining about the poor customer service she had received from Ms. Ceresato. Mr. Pitre had noticed on the previous day that Ms. Ceresato was behaving inappropriately with a number of customers. On October 20, 2012, Mr. Pitre and Mr. Cameron met with Ms. Ceresato to discuss her less than professional behavior on cash. As he often did with Ms. Ceresato, Mr. Pitre started the discussion by asking her how she was doing and whether was she having any issues recently. When she asked why he was asking, Mr. Pitre and in turn Mr. Cameron described her recent inappropriate interactions with customers on cash and they emphasized the importance of customer service. Ms. Ceresato became upset and stormed out of the office. She -9- later returned and apologized for getting upset. It appears that this was a common scenario for Ms. Ceresato. She would become angry or emotionally upset about something and then later apologize for her behaviour. On October 31, 2012, Mr. Pitre received another call from a customer who was upset about the service she had received from Ms. Ceresato. [17] On December 1, 2012, when Mr. Cameron was in charge in Mr. Pitre’s absence, he asked Ms. Ceresato to go on cash for 15 minutes. She complained loudly in front of customers about this request while shouting that a less senior person should cover the till. As she moaned and complained about the assignment, Ms. Ceresato loudly and forcefully boxed up a customer’s purchase, almost shattering the bottles, much to the shock of the customer and a co-worker. Mr. Cameron asked Ms. Ceresato to come to the office to discuss what was going on. Ms. Ceresato yelled at him about seniority and complained that she was always made to stay on cash. Mr. Cameron sent a text to Mr. Pitre explaining the situation and asked him about the proper procedure for sending Ms. Ceresato home. After hearing more of the details during a phone call, Mr. Pitre directed Mr. Cameron to send Ms. Ceresato home. When Mr. Pitre returned to the store, Mr. Cameron was talking to Ms. Ceresato in the office. Ms. Ceresato continued to downplay the incident and told Mr. Pitre that “you just don’t like me Sylvain”. Mr. Pitre advised her that he would investigate the matter, directed her to go home and walked her out of the store as she still was visibly upset. Mr. Pitre requested written statements from witnesses to the incident and he made notes of what had occurred on December 1, 2012, and about some of the previous events that took place in October 2012 relating to Ms. Ceresato’s interaction with customers. [18] Mr. Pitre attended a meeting on December 4, 2012, for the purpose of discussing Ms. Ceresato’s recent behaviour so that her conduct would change in a positive way going forward. The acting District Manager, Ms. Ceresato and Mr. Jeremschuck were also in attendance. It turned out that the meeting did not address Ms. Ceresato’s inappropriate behaviour, but rather focused on her assertion that her anxiety was causing her a problem while on cash when she gets a line up. Mr. Jeremschuck advised her to see a doctor so that her condition could be accommodated. -10- She indicated that she would see her doctor and the meeting ended in short order. This was the first time that Ms. Ceresato disclosed to the Employer that she had an anxiety disorder. On December 7, 2012, Ms. Ceresato provided Mr. Pitre with a note from her doctor indicating that she should only work two hours per day on cash due to medical reasons. From that point on the Employer accommodated her accordingly. [19] During the period of her accommodation, Ms. Ceresato was often scheduled on the casual shift that started at 11:00 a.m. and ended at 7:30 p.m., rather than the earliest casual shift that started at 10:00 a.m. and ended at 6:30 p.m. She preferred the shift that ended at 6:30 p.m. because it allowed her to spend more time with her mother in the evening. Her mother lived in a nursing home at Leamington, about a one hour drive from Tecumseh. When a schedule for a particular week had her working straight 11:00 – 7:30 p.m. shifts, Ms. Ceresato complained to Mr. Pitre about the situation on May 3, 2013. Mr. Pitre explained at some length that this was the best shift for her given her cash restriction and the operational needs of the store. Ms. Ceresato became upset and claimed that Mr. Pitre was discriminating against her because of her anxiety issue. As she became increasingly upset, she blamed the way he scheduled her for her anxiety issues. When Ms. Ceresato mentioned involving the Union, Mr. Pitre encouraged her to do so. She became further upset and started yelling when she believed that Mr. Pitre was suggesting that she change the doctor’s note that supported her accommodation. Mr. Pitre told her that he did not make such a request as she told him to not yell at her and walked out of the office. [20] In order to have the opportunity to be scheduled on the earliest casual shift, Ms. Ceresato obtained a doctor’s note dated June 24, 2013, advising that she “may now return to regular duties”. Ms. Ceresato indicated that her doctor asked her if she could handle cash without the restriction and that she told him that she would have to. Her accommodation with a two hour restriction on cash ended on June 24, 2013. The Employer did not make any inquiries of Ms. Ceresato as to whether her anxiety issue had been resolved to the point that she could resume normal hours on cash. -11- [21] In the general chronology of events, this brings us to 2014. As noted previously, Ms. Ceresato filed her grievance alleging harassment and bullying on January 17, 2014. Mr. Parker conducted the stage 2 meeting on January 24, 2014, at his office with Ms. Ceresato and Mr. Jeremschuk present. Ms. Ceresato raised a number of issues at the meeting in support of her claim. It appeared to Mr. Parker that her main concerns were about the way she was being scheduled by Mr. Pitre. Mr. Parker considered her allegations and investigated them by visiting Store #278 and talking to employees. He ultimately determined that there was no evidence to support Ms. Ceresato’s contention that Mr. Pitre harassed and bullied her and he conveyed this to the Union in a 2nd stage decision dated February 13, 2014. Finding this decision unsatisfactory, the Union requested that a date be set for a stage 3 meeting. The stage 3 meeting to deal with Ms. Ceresato’s grievance was scheduled for May 5, 2014, but did not take place given that the events that led to her suspension and ultimate discharge had occurred just prior to May 5, 2014. [22] In January 2014, Mr. Pitre received a customer complaint concerning Ms. Ceresato’s professionalism. In early February 2014, over a period of three days, three employees expressed concerns to Mr. Pitre about Ms. Ceresato’s increased rude demeanor and poor work ethic. On February 2, 2014, Mr. Pitre noticed that a cashier was buzzing for help, but not getting a response. When he went to see if anyone was available to assist on cash, he noticed Ms. Ceresato in the vintage section. She was drinking coffee and appeared to be shopping. When he asked her if she could be a little more supportive on cash, Ms. Ceresato raised her voice and stated that she had been on cash all morning. Mr. Pitre knew that this was not the case. Ms. Ceresato became upset and defensive and wanted to argue about the issue on the floor. Mr. Pitre felt that further discussion with her was futile. By then, other employees had gone up to assist on cash. [23] In response to Ms. Ceresato’s continuing complaints about being treated unfairly because she spent a disproportionate amount of time on cash, Mr. Pitre did an analysis and prepared a document which illustrated the number of transactions per hour by casual cashiers for periods 9, 11 and 12, which went up to February 20, 2014. Out of -12- the seven casual cashiers, Ms. Ceresato had the lowest overall number of transactions per hour. When Mr. Pitre conveyed this information to Ms. Ceresato, she was not impressed and suggested that the numbers were made up. Mr. Pitre felt that the time he spent doing the analysis was for nothing. [24] On March 25, 2014, Ms. Anne Larsh advised Mr. Pitre that she could not work alone with Ms. Ceresato anymore. On March 26, 2014, Mr. Pitre, with Mr. Cameron present, had a discussion with Ms. Ceresato about an incident that occurred on March 22, 2014, when Ms. Larsh was Shift Leader. On that Saturday evening, Ms. Ceresato went to the back to change about 5 to 10 minutes before the completion of her 9:00 p.m. shift without consulting Ms. Larsh. Mr. Pitre advised her that employees were required to work their full shift and that she should have communicated with the Shift Leader. Rather than admit that she should have communicated with Ms. Larsh before changing into street clothes, Ms. Ceresato indicated that the incident was exaggerated by Ms. Larsh. [25] A further interaction between Mr. Pitre and Ms. Ceresato occurred on April 25, 2014, which was in the week before the incidents that led to Ms. Ceresato’s termination. In an email to Mr. Parker on that day, Mr. Pitre referred to some recent events and then to what had occurred on April 25. The matters described in this email were confirmed by the evidence. With respect to recent events, he noted that she had been showing up at work late, tired and unprepared to work. On the previous Monday he indicated that he observed that “her contribution to tasks and staying focused on Customers” was below par and he assumed that her lack of sleep made her more “edgy” lately. He noted that Ms. Ceresato “made it repeatedly clear that she “doesn’t care”, in those exact words, and her behaviour supports her poor attitude.” His description in the email of what happened on April 25 is as follows: Today, I wanted to see how accurate her colleagues were in their concerns and see how well Brenda actually performed by observing from a distance. What I saw was that from 10am-12pm, Brenda put away a total of 3 blue two level carts. (Others would take 20 minutes with similar challenges this morning). She did indeed help a few customers in terms of showing them product but we were really not busy during that time frame. Brenda was not needed on cash for more than a few transactions, as her time on cash was slotted later on the Daily Operation Plan. Out of the few customers she helped cash out, a lady customer actually came back to pay for a product she had not charged her -13- for-this is not quite like Brenda, as far as I know from reports and audits. I had also deliberately relieved Brenda from a customer, in the back warehouse, who was collecting empty boxes and suggested that she could go back to working on carts, as it was Friday and we needed to fill the shelves before we got busy. I basically wanted to see how she was today focusing on carts, without distractions or excuses, compared to what I’ve seen in the past. My goal was to later explain my observations to help and build a plan to help her improve when Scott came in. To do this, I was likely far more visible today than usual and this may have made everyone uncomfortable. At one point, I noticed that she seemed to be struggling at the service desk computer so I simply asked her if she was helping someone to see if I could assist in any way and also to evaluate if she was still on task. (I have seen Brenda shopping while working in recent weeks and today she seemed distracted by the new releases that came out). She confirmed that she was helping a customer so I made no issue of it. She asked me why I was asking and I mentioned again that we need to focus on carts. Later in the morning, I received a phone call from a Licensee who wanted to place an order. I was quite busy so I went for a quick walk to the floor and found Brenda talking to LeeAnne in the vintage area. They were looking at the computer without any customers around, that I was aware of. I simply asked Brenda if she could take “line 1” and explained briefly that Twiggs wanted to place an order. I did not think this was too much to ask, nor was my tone inappropriate but I noticed she responded, although with a positive answer, but with an upset look on her face. LeeAnne was right there when I asked her the direct question. When Guy called in and asked me rudely to talk to Brenda, I knew something was up. Brenda was talking to him, she was crying for a bit and then just left the store. Brian, I am truly at a loss here. I didn’t even have a talk with her yet! If me being on the floor and encouraging employees to stay on task is out of line, this is unacceptable. Sometimes I wonder if we have any ground to stand on anymore. [26] Ms. Ceresato became upset on April 25 because she felt that Mr. Pitre was following her around all day. Her shift started at 10:00 a.m. and was scheduled to end at 6:30 p.m. After Ms. Ceresato explained the situation to Mr. Jeremschuk during a telephone call, while upset and crying, he advised her to leave the store. Ms Ceresato testified that Mr. Jeremschuk told her that she should expect to get transferred to another store if she left. She left the store at about 1:30 p.m. without advising Mr. Pitre. She testified that she did tell Mr. Cameron that she was leaving. [27] The incidents described above that occurred at Store #278 should be considered in the context of some of Ms. Ceresato’s personal issues since they undoubtedly had some impact on her employment. Her difficulty in controlling her anger has been mentioned previously as well as her failure to make any effort to address this issue -14- when she was given two weeks off work in the summer of 2012. The other personal issues include the health of her mother, her debt situation and her mental health. [28] Ms. Ceresato lived with her mother and was her caregiver at a time when her mother had congestive heart failure. In September 2011, her mother had a stroke which left her left side paralyzed. Soon thereafter her mother was placed in a nursing home at Leamington, about a one hour drive from Tecumseh. Ms. Ceresato was close to her mother and had a hard time emotionally when dealing with her mother’s health concerns. Some of the times she cried at work related to her mother’s circumstances. The Employer was sympathetic with this personal issue and told her about the Employee Assistance Program (“EAP”). Mr. Pitre granted Ms. Ceresato time off on most occasions when she requested time off to spend more time with her mother. In the rare instance when he denied her request, he provided her with a reasonable explanation. I gather that Mr. Pitre had more tolerance for her punctuality issues in recognition of this personal issue. Ms. Ceresato did not request an accommodation to assist her in dealing with her mother’s health issues. Unfortunately, Ms. Ceresato’s mother passed away during the course of this proceeding. [29] By at least mid-summer 2011, a personal relationship ended that had the effect of increasing her debt load to about $90,000.00 as a result of her having the sole responsibility for truck and credit card payments and other expenses. In July 2011, she increased her casual availability from 30 hours to 40 hours in order to help reduce her debt load. She also availed herself of the EAP for the purpose of meeting with a financial advisor and she began reducing unnecessary spending. Ms. Ceresato owned three horses and she entered riding competitions. To reduce her boarding fees of $1,100.00 per month, she sold a horse in 2013 and another in 2014. She was unable to sell the third horse. Beginning in January 2014, Ms. Ceresato started working on a second job in order to address her debt situation. She started working for Post Meridiem Plastics as a machine operator on January 6, 2014, and was laid off on February 28, 2014, for lack of work. She then started working through Kelly Services, an employment agency, on March 3, 2014, until no later than May 5, 2014. In both jobs she worked a full week of night shifts and then typically worked her usual hours with the -15- LCBO. She indicated that her last day of work for Kelly Services may have been April 30, 2014, when she decided that she could no longer work a second job on night shifts. Co-workers knew that she was working at a second job and eventually someone told Mr. Pitre about her other job. Ms. Ceresato indicated that having a second job did have an impact on her and on her work at the LCBO. She was often tired, moody and edgy while at work. She stopped taking her medication because she found that it made her sleepy. Instead of her medication she chewed gum and took walks. Working in excess of 80 hours per week did result in a decline in her work performance in her day job. In at least the last two weeks before she ended the job at Kelly Services, Ms. Ceresato worked half days at the LCBO in order to reduce the impacts of working excessive hours. She asked Mr. Pitre to work half days and he granted her request. Her debt load continued to remain at a high level during her time at Store #278. [30] In preparation for this hearing, Union counsel contacted Ms. Ceresato’s doctor and requested that he respond to certain questions. In a letter to Union counsel dated July 25, 2016, Dr. Echlin responded in part as follows: “She was in a state of considerable stress and depression, which has been long term and on going. To my knowledge she has not seen a specialist psychologist and if you would like I can make an appointment with her in my office and go through that period of time with her. At any rate she has been very stressed and depressed about her life situation. She has always been a straight forward and honest person to my knowledge.” Union counsel also filed a list of medications prescribed by Dr. Echlin going back to 2010. The medications are for anxiety and depression. Ms. Ceresato indicated that the anxiety started when she was twenty years old and that her depression was exacerbated by her mother’s health issues. Ms. Ceresato did not discuss her depression with anyone at work. When asked if her depression impacted her work, she responded by saying “Oh, I’m sure it did”, without being specific. She suggested that her depression combined with her mother’s health issues may have contributed to her emotional state at work, including the occasions she was crying at work. Mr. Pitre did become aware that Ms. Ceresato’s mental health issues extended beyond anxiety. This came about when he found her medication in the lunchroom after she had failed to return it to her locker. He returned the medication to her locker without telling Ms. Ceresato that he had done so. Apart from her request to spend a limited time on cash -16- due to anxiety, Ms. Ceresato did not ask the Employer to accommodate her because of a mental health issue. [31] Mr. Pitre testified at some length about what it was like managing Ms. Ceresato and Ms. Ceresato in turn testified about what it was like to be managed by Mr. Pitre. Mr. Pitre had high expectations for his staff and he attempted to ensure that all employees met those expectations by performing their jobs well. Although Ms. Ceresato had strengths in certain areas, there were days when “she was not on her game”. On those occasions he would attempt to support and coach her by explaining expectations, but often found that she was defensive, did not take constructive feedback and would often not take responsibility for her conduct. As a result, Mr. Pitre’s efforts to change her attitude and behaviour proved to be unsuccessful. It got to the point where Ms. Ceresato would tell him that she did not care when he was trying to coach her. Recognizing that she was emotionally fragile at times, he would first discuss neutral subjects before he raised a concern about her conduct. He assessed her work and treated her the same way he assessed and treated the other employees at Store #278. For example, he assigned her Shift Leader duties, which was entirely within his discretion, because he was confident that she could perform this role. However, given her issues, he found that it was necessary to spend more time managing Ms. Ceresato than any other employee. The period of time when Ms. Ceresato had a second job proved to be particularly difficult. She was often tired with the result that her mood swings, unexpected reactions and negativity increased and her performance declined. He often had to follow up with her to ensure that assigned tasks were performed in a timely way and that she stayed on task. Although co-workers had issues with working with Ms. Ceresato in the past, he heard complaints from some co-workers during this time to the effect that they were afraid to work with her. He consulted others and read books to learn how he could get through to and deal more effectively with Ms. Ceresato. Mr. Pitre was disappointed that he was not successful in getting Ms. Ceresato to take personal responsibility for behaviour. [32] Ms. Ceresato became concerned about her working relationship with Mr. Pitre about two years before she filed her harassment and bullying grievance. She formed -17- the view that he did not treat her fairly and that he treated her differently from other employees. It was apparent that she developed a dislike for Mr. Pitre as a manager. During her testimony about the alleged incidents of harassment and bullying by Mr. Pitre, Ms. Ceresato indicated that her primary concern was with the manner in which he discussed issues with her. She described the impact of their interactions on her in varying ways as follows: he was condescending and hurtful; he said things to make her feel slow and dumb; he made her feel stupid; he embarrassed and humiliated her; and, he made her feel incompetent. It appears that it got to the point that she found it stressful when Mr. Pitre was in the store, even when he was not interacting with her. She rarely, if ever, complained to Mr. Pitre about those aspects of his conduct that concerned her. Instead, she often complained about him to the Union. When asked why she did not file a grievance earlier, she indicated that it was only when she advised the Union that she was considering a complaint to the Labour Relations Board that the Union supported her desire to file a grievance. [33] Beginning in 2013, Ms. Ceresato started making brief notations about incidents involving Mr. Pitre that she found troubling. It was with reference to these notations that she testified about her recollection of the incidents of harassment and bullying by Mr. Pitre. At this juncture I will simply highlight the subject matter of these incidents. Ms. Ceresato claims that Mr. Pitre engaged in harassment and bullying in connection with the following matters: he scheduled her unfairly, particularly when she was being accommodated with a two hour cash restriction; he was unfairly critical of her work performance; he questioned her about the number of bathroom breaks she took; he followed her around excessively, particularly on April 25, 2014; he made comments to her about the smell of her lunch; he blamed her for things that were not her fault; he assigned her undesirable tasks more frequently, while not assigning her to do cycle counts; he sent her texts when he was aware that she preferred telephone calls; he asked her for a doctor’s note to justify an absence, but did not ask for such a note from another employee; he ignored her when her deposits on cash were over the limit; he criticized her for not reporting for work when she decided to stay at a funeral; and his handling of the situation when a customer gave her a bottle of wine for assisting him with a large return. -18- I note that some of her notations were not dated and it appears that some of them had the date of when she made the notation, but not the date of the incident, which made it difficult for the Employer to defend against certain allegations that occurred many years ago. [34] In making her submissions on the harassment and bullying allegations, Union counsel did not refer to each incident relied on by Ms. Ceresato in detail. She noted that some of the incidents may seem minor and indicated that the Union was not claiming that each incident alone amounted to harassment, but that a review of the incidents in their totality demonstrated that Mr. Pitre harassed and bullied Ms. Ceresato. After briefly referring to a few of the incidents, counsel argued that it was important to examine their cumulative effect on Ms. Ceresato. She emphasized that the impact of Mr. Pitre’s conduct made Ms. Ceresato feel stupid, humiliated, slow and dumb, etc., and that it wasn’t so much about what he discussed with her but how he discussed issues. Counsel argued that Mr. Pitre did cross the line when all of the incidents are viewed together, even though each incident may have been subtle and at the lower end of the harassment and bullying scale. Counsel requested that I find in favour of Ms. Ceresato on her harassment grievance. [35] Employer counsel submitted that the objective facts did not support a finding that Mr. Pitre harassed and bullied Ms. Ceresato, irrespective of the subjective views held by Ms. Ceresato. She submitted that Ms. Ceresato did not like Mr. Pitre and because of her personal issues misinterpreted his intentions when he engaged in coaching and counseling her. She noted that Ms. Ceresato conducted herself in such a way that it was Mr. Pitre’s job as her manager to interact with her often for the purpose of correcting her behaviour. Counsel also noted that even though there were a number of instances when Mr. Pitre could have disciplined Ms. Ceresato, he tried to change her behavour by being supportive. Counsel emphasized that Mr. Pitre had high expectations for his employees and may have held them more accountable than other managers, with the result that he might not have been the most popular manager, but that his managerial approach with Ms. Ceresato did not amount to harassment and bullying. She submitted that he assessed and treated all of his employees the same -19- way. Employer counsel also argued that there was an absence of evidence to support the allegation that the way he communicated with Ms. Ceresato constituted harassment and bullying. Counsel submitted that questions of whether Mr. Pitre could have handled some of the incidents better or made some mistakes are not relevant since the only issue before me is whether he engaged in harassment and bullying against Ms. Ceresato. She argued that Mr. Pitre did not cross the line with Ms. Ceresato and that the objective evidence demonstrates that he took reasonable and appropriate actions in the circumstances of the incidents relied on by Ms. Ceresato. The Employer requested that Ms. Ceresato’s harassment and bullying grievance be dismissed. [36] The Employer has a Human Rights/Workplace Harassment Prevention policy. All employees have been trained in this policy. The policy adopts the definition of “workplace harassment” contained in the Occupational Health and Safety Act (“OHSA”) and provides that a person who engages in conduct amounting to workplace harassment could be subject to disciplinary action, up to and including termination of employment. [37] I was referred to a number of decisions by counsel that address harassment, bullying and related issues. Employer counsel relied on the following decisions in support of her submissions: Re Cara Operations Ltd. and Teamsters Chemical, Energy and Allied Workers Union, Local 647 (Palmieri) (2005), 141 L.A.C. (4th) 266 (Luborsky); Re Nunavut and Public Service Alliance of Canada (Kellett) (2006), 151 L.A.C. (4th) 35 (Knopf); Fanshawe College of Applied Arts and Technology v. Ontario Public Service Employees Union (Read), [2016] O.L.L.A. No. 167 (Bendel); Ontario Public Service Employees Union (Fortin) v. Ontario (Ministry of Finance), [2017] O.G.S.B.A. No. 18 (Luborsky); Re S v. M, G, Z (1995), 49 L. A. C. (4th) 193 (Laing); United Food and Commercial Workers Union of British Columbia, Local 1518 v. 55369 BC Ltd. (c.o.b. Shoppers Drug Mart No. 242), [2007] B.C.C.A.A.A. No. 130 (Larson); and, Ontario Liquor Boards Employees’ Union v. Ontario (Liquor Control Board) (Pizzolato), [2000] O.G.S.B.A. No. 105 (Gray). Union counsel relied on Children’s Hospital of Eastern Ontario v. Ontario Public Service Employees Union (Labrecque), [2015] O.L.A.A. No. 342 (Parmar). -20- [38] The legal framework for assessing allegations of harassment and bullying in the workplace begins with the relevant definition in the OHSA, combined with the principles set out in the above decisions. Workplace harassment is defined in OHSA in part as follows: “workplace harassment” means, (a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. [39] The key principles arising from the above decisions can be summarized as follows. An allegation of harassment and bullying is a serious matter for both the accuser and the person accused of engaging in such misconduct. The onus in a case such as this is on the Union to prove the harassment and bullying on the balance of probabilities. The test for determining whether harassment or bullying has been made out is an objective one; the subjective perceptions of the accuser are not sufficient by themselves to establish the allegations. To be successful with his or her complaint, the objective evidence must show that the conduct of the accused is a departure from reasonable conduct in the circumstances. In assessing the objective evidence, the adjudicator should not assess too narrowly the question of whether there has been a departure from reasonable conduct, given the wide range of personalities and individual sensitivities. In the context of an allegation by an employee against a manager, it is necessary to distinguish between the legitimate exercise of management functions that may be unwelcome to the employee as opposed to vexatious comment or abusive conduct against a worker. [40] Some of the decisions which developed these principles and involve an allegation of harassment by an employee against a supervisor are worth noting. In Re Cara Operations Ltd. and Teamsters Chemical, Energy and Allied Workers Union, Local 647, supra, after referring to the definition of harassment developed by Arbitrator Shime in a TTC decision, Arbitrator Luborsky comments as follows: 20 I accordingly adopt the foregoing as authority for the proposition that I must objectively assess the evidence to determine whether workplace harassment has occurred. Consequently, even if the Grievor believed she was a victim of such harassment, and suffered real medical consequences as a result, her perceptions and their result are not enough, in themselves, to support a finding of harassment. -21- … 24 …one must be careful not to construct to narrow a definition of “departure from reasonable conduct” lest every perceived slight or subjective inference of abuse might result in paralyzing consequences to the workplace. There is a wide range of personalities that we experience in our interaction with others; not all of which may be pleasing to our individual sensitivities, but which we must live with nevertheless, within legal bounds, developing a certain “thickness of skin” to the challenge another’s disagreeable mannerisms might present. Whether dealing with a family member, backyard neighbour, co-worker or supervisor, the question of whether the other person’s behaviour amounts to a “departure from reasonable conduct” is an objective inquiry that given the expected variability in human capabilities and personalities, must be afforded a relatively wide margin of interpretation. Not every supervisor is a “good” one, but not all “bad” supervisors are abusive, without suggesting that Sharma fell within one or the other category. [41] In Fanshawe College of Applied Arts and Technology v. Ontario Public Service Employees Union (Read), supra, the grievor claimed that she had been harassed and bullied by her supervisor, characterizing the supervisor’s conduct as “negative which took the form of belittling her, criticizing her and speaking malicious rumors about her” which made her feel “insignificant” and “undervalued”. In the course of addressing the issues, the arbitrator commented as follows: 88 In my view, a prerequisite for a finding of harassment is that the conduct about which the complaint is made be “a departure from reasonable conduct”… An employee who complains about behaviour that is within the realm of reasonable conduct will be unable to satisfy an arbitrator that there has been harassment, regardless of the effect that behaviour might have had on the employee. … 97 …a finding of harassment requires a departure from reasonable conduct. It cannot be based on a grievor’s perceptions and interpretations. 98 Looking at the evidence as a whole, I am unable to conclude that Ms. Pierce’s conduct about which the grievor has complained, viewed either as individual incidents or as a pattern, was such a departure from reasonable conduct as to support a finding of harassment. [42] In Ontario Public Service Employees Union (Fortin) v. Ontario (Ministry of Finance), supra, another case in which a grievor alleged harassment and bulling by her immediate supervisor, the arbitrator explores the meaning of the terms “vexatious” and “bullying” in a labour relations context as follows: 162 The word “vexatious” is defined in The New Shorter Oxford English Dictionary (Clarendon Press, Oxford: 1993) as “causing or tending to cause annoyance, frustration, or worry” and in law it denotes, “an action or the bringer of an action that is brought without sufficient grounds for winning, purely to cause annoyance to the defendant”. Applied in the context of labour relations, “vexatious comment or conduct against an -22- employee in the workplace” by a supervisor or person in authority as that phrase appears in article 3.3 of the parties’ collective agreement, refers to words or actions without sufficient grounds or bona fide purposes other than to cause annoyance, frustration and/or worry to an employee, constituting a form of bad faith. This must be distinguished from the words or actions of a supervisor, which the supervisor reasonably knows is unwelcome by the employee, but is nevertheless part of the legitimate exercise of the supervisor’s right to manage the enterprise in the good faith application of the power expressly conferred under article 2 of the collective agreement (and any residual prerogatives), “to manage the business and direct the workforce”, which is not “vexatious” in itself. 163 The word, “bullying” describes a spectrum of conduct related to the improper use of power that one person has over another, “to coerce or intimidate weaker persons” (per The New Shorter Oxford English Dictionary, supra). In the Board’s opinion, “bullying” is a form of an “abuse of power” in the workplace, which includes conduct by a person in a relative position of authority against an employee that a reasonable person would find hostile or offensive causing or having the potential to cause physical or psychological harm or adverse employment consequences to the employee, such as: (a) repeated infliction of verbal invective or maltreatment in the form of derogatory remarks, foul language and/or insults; (b) verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating, including yelling and physical displays of aggression and/or any form of violence; (c) deliberate sabotage or undermining of an employee’s work performance; (d) whether as part of a pattern of repeated misconduct or even where it occurs on a single occasion that is especially severe. [43] In United Food and Commercial Workers Union of British Columbia, Local 1518 v. 55369 BC Ltd. (c.o.b. Shoppers Drug Mart No. 242),supra, an employee complained that she had been harassed by a manager. In dealing with this alleged misconduct, the Arbitrator Larson commented as follows: 30 …While “normal management rights” is not defined, what one can say is that it does not excuse harassment. What it does is recognize that giving directions, evaluating performance and even disciplining employees should not be considered harassment in the normal course of events provided that these normal management activities are not carried out in an abusive, demeaning or hostile manner and have a legitimate work place purpose… … 32 Even severe criticism of an employee by a supervisor who is genuinely attempting to deal with a perceived performance problem is not harassment… Nor is it necessarily harassment where an employee is demonstrated to have been improperly disciplined by a supervisor or other supervisory action is shown to be unjustified. Supervisors have a right to be wrong provided that they act in good faith and not for an improper purpose. Poor judgment or wrong action is not discriminatory per se. It only becomes harassment when done in a seriously hostile or intimidating manner or in bad faith. [44] Although not a case of an employee being allegedly harassed by a supervisor, the Union relies on Children’s Hospital of Eastern Ontario v. Ontario Public Service Employees Union (Labrecque), supra, to illustrate that harassment can be quite subtle. -23- The grievor, a social worker, was discharged for harassing conduct against interlink nurses and other social workers. The employer claimed that the grievor harassed these individuals by engaging in a pattern of passive-aggressive behaviours that resulted in a poisoned work environment. Arbitrator Parmar comments on the nature of the harassment in that case as follows: 109 The conduct the Grievor engaged in in this case is not the usual sort of yelling or name calling that is commonly recognized as personal harassment. However, the subtle nature of the conduct does not militate against a finding of harassment. Whether the comments or conduct are overt, or whether it is passive non-verbal behaviour, a finding of harassment is only dependent on whether the conduct is vexatious and was known or ought to have been known to be unwelcome. 122 …On the spectrum of harassment, the Grievor’s conduct only appears to fall at the lower end if each incident is considered on its own. However, the significance and impact of the Grievor’s misconduct was magnified by its insidious and sustained nature. The cumulative impact of her behaviour was so significant that it created a situation where people began to doubt their own abilities and worth, and were uncomfortable expressing their own views for fear of her reaction or some sort of reprisal behaviour from her. They described it as “walking on eggshells” or being “in an abusive relationship”… [45] I now turn to a review of the incidents relied on by Ms. Ceresato in support of her allegations of workplace harassment and bullying by Mr. Pitre. I noted previously that Ms. Ceresato stated in her testimony that her problem with Mr. Pitre had more to do with the way he spoke to her as opposed to what he was talking to her about. I believe it is interesting that she made this statement after she had been thoroughly cross- examined on most of the incidents. As a result of the detailed focus of each incident during cross-examination, it appeared as if Ms. Ceresato began to appreciate that the incidents by themselves may not have supported a claim of harassment and bullying. Because she essentially raised the issue of how Mr. Pitre spoke to her close to the end of her cross-examination about the incidents, there was often no specific evidence of the way in which he communicated with her for many of the incidents she relied upon to support her position. In any event, I considered each situation that Ms. Ceresato relied upon to support her allegations of harassment and bullying against Mr. Pitre in line with the principles set out in the decisions referred to above. The essence of the inquiry is on whether or not Mr. Pitre’s actions amounted to a departure from reasonable conduct by a manager in the circumstances. -24- [46] On a day when Ms. Ceresato was scheduled to start her shift at 12:45 p.m., Mr. Pitre called her at about 8:30 a.m. to ask if she could come in earlier. He did this because Ms. M. Zina had called in to advise that she was unable to work her earlier shift. Ms. Ceresato told Mr. Pitre that she was not feeling well herself and was going to call in to advise that she was not able to report for work. Mr. Pitre said fine and then hung up. He later called her back and asked her to provide a doctor’s note for her absence. She complied with his request. Ms. Ceresato understood that Ms. Zina was not asked to provide a medical note to support her absence. Her complaint is that she was requested to provide a doctor’s note when Ms. Zina was not asked for such a note. Mr. Ceresato believed that Mr. Pitre was picking on her. The note Ms. Ceresato made of this incident was undated and she could not recall when the incident happened. Mr. Pitre could not recall the incident. Ms. Ceresato assumed that Ms. Zina was absent due to illness but there was no evidence about why she was absent or whether she was required to produce a doctor’s note if her absence was due to illness. In the absence of relevant facts it is not possible to make an assessment about the reasonableness of Mr. Pitre’s request of Ms. Ceresato to provide a doctor’s note. It was also not established that the circumstances of Ms. Zina’s absence were similar to those of Ms. Ceresato’s absence such that one can conclude that there was differential treatment that was unwarranted. There was no suggestion that the way Mr. Pitre asked for the doctor’s note was inappropriate. He rarely asked Ms. Ceresato to provide a doctor’s note. The Union has not established that Mr. Pitre’s request for a doctor’s note on this occasion constituted conduct that was unreasonable or amounted to workplace harassment. [47] After assisting a customer with a large return, the customer left a bottle of wine for Ms. Ceresato that cost about $20.00. Ms. Ceresato did not date her notation of this incident, but it is likely the incident occurred during the Christmas period in 2012. When she told Mr. Pitre that a customer had left her a bottle of wine, he thought that her keeping the gift was questionable. The LCBO has a Conflict of Interest policy that prohibits an employee from accepting gifts, except if the gift is of nominal value. He asked Ms. Ceresato to leave the bottle of wine in the office until he checked out whether it was appropriate for her to accept it. Since he had not encountered this situation before, Mr. Pitre looked at the policy and consulted with Mr. Dunlop. He came to the -25- conclusion that accepting the bottle of wine would amount to a conflict of interest. He determined that accepting a coffee or other item of limited value did not violate the policy, but accepting a bottle of wine was entirely different. Mr. Pitre advised Ms. Ceresato that she could not accept the bottle of wine and explained why this was the case. Mr. Pitre had the bottle of wine returned and deposited the money in a staff fund. Mr. Parker also testified that it would have been contrary to the Conflict of Interest policy for an employee to accept a bottle of wine from a customer and he confirmed that each store had a staff fund. Ms. Bell testified that it was clear to her that Mr. Pitre was trying to upset Ms. Ceresato by the way he handled the incident. In my view the facts do not support Ms. Bell’s perspective. Ms. Ceresato’s concern about this incident was not so much that she was not entitled to keep the gift, but that Mr. Pitre had spent so much time in an effort to ensure that she could not keep the gift and that she doubted that there was a staff fund. She reported the incident to Mr. Parker. Mr. Pitre did not simply tell Ms. Ceresato that she could not keep the bottle of wine. He consulted the policy and sought the advice of Mr. Dunlop because he was uncertain about whether it was appropriate to accept such a gift. I am satisfied that Mr. Pitre was acting in good faith when he spent the time and ultimately came to the conclusion that accepting a bottle of wine from a customer would contravene the Conflict of Interest policy. I also find that the way he handled the incident was not a departure from reasonable conduct. I have no doubt that Mr. Pitre’s conclusion about the appropriateness of accepting the gift and how he dealt with the situation would have been the same if an employee other than Ms. Ceresato had been the recipient of such a gift. [48] During the first week of July 2013, Store #278 was audited by Mr. Dunlop. On July 5, 2013, Mr. Dunlop discovered an opened bottle of wine in the fridge and an opened bottle of rum in the freezer. Both bottles had been left open from old tastings and policy dictated that they should have been dumped. This rule violation negatively impacted Store #278’s audit score. Ms. Ceresato testified that when she and Mr. Cameron were in the warehouse, Mr. Pitre came out of the kitchen with the opened bottles and asked her: “Did you fucking know about this shit?” She indicated that she knew nothing about it and Mr. Pitre left to dump the bottles in the slop room. Although he agreed that he was upset and frustrated at the time, Mr. Pitre denied that he swore -26- when he spoke to Ms. Ceresato and Mr. Cameron. Mr. Cameron confirmed that Mr. Pitre doesn’t swear at the store and did not do so on that occasion. Ms. Ceresato also indicated that Mr. Pitre does not normally swear and she agreed during cross- examination that Mr. Pitre was not blaming her for the presence of the opened bottles in the fridge. Mr. Pitre accepted her response and he did not subsequently pursue the matter even though Ms. Ceresato was the Shift Leader on the previous day and may have had some responsibility for the presence of the opened bottles in the fridge. Even if Mr. Pitre did swear on this occasion, he was not swearing in an effort to be abusive towards Ms. Ceresato. I am satisfied that Mr. Pitre’s lone comment generated out of frustration was not so severe as to amount to vexatious or bullying conduct in the circumstances. [49] On September 29, 2013, Ms. Ceresato attended a friend’s funeral. She had volunteered and was scheduled to work on that Sunday. There are usually three employees scheduled to work the 12:00 to 5:00 p.m. Sunday shift. Mr. Pitre does not work on Sundays. At the urging of her friend’s family Ms. Ceresato elected to stay at the funeral. She therefore gave very little notice when she called the store to advise that she would not be reporting for work that day. This left the Shift Leader with the difficult job of trying to find a replacement at the last minute for the shift. It turned out that an employee from another store came to Store #278 to replace Ms. Ceresato. Ms. Ceresato received “words and looks” from co-workers for not showing up for her scheduled Sunday shift when she returned to work on the Monday. The Shift Leader complained to Mr. Pitre about the matter and this led Mr. Pitre to call Ms. Ceresato into his office to discuss the incident. Mr. Pitre essentially advised her that she let down the team when she gave notice at the last minute of her decision not to report for work. There was no suggestion that he conveyed this message in an inappropriate manner. Rather than discipline Ms. Ceresato, Mr. Pitre simply elected to counsel her. In these circumstances, Mr. Pitre addressed the issue in a reasonable manner after receiving a complaint from a Shift Leader. [50] Ms. Ceresato claims that she was treated differently with respect the funeral incident when compared to how Ms. Leary was treated when Ms. Leary called in sick for -27- her shift on Monday, December 23, 2013. The staff Christmas party was held on Sunday, December 22. Ms. Ceresato believed that Ms. Leary left the store shorthanded on the busiest day of the year because of a hang-over and that this matter was not addressed by Mr. Pitre. I agree with Employer counsel’s contention that the two incidents were not similar. Ms. Ceresato chose not to work her Sunday shift when she elected to stay at the funeral and the primary concern was her failure to give sufficient notice thereby causing some difficulty for the Shift Leader to replace her. Ms. Leary missed her shift because she was not well and there was no issue about sufficient notice. Nor did Ms. Leary’s absence cause the store to be shorthanded. With nineteen staff scheduled to work on the Monday during Christmas week, the store was still adequately staffed and no one complained about her absence. Another distinguishing feature is that Ms. Leary took responsibility for missing the shift and apologized to Mr. Pitre. Ms. Leary had other issues relating to attendance for which she had been counseled privately by Mr. Pitre. Ms. Ceresato is simply incorrect in her allegation that she was treated differently when compared to Ms. Leary. Mr. Pitre dealt with the two different situations reasonably in the circumstances. [51] In a notation dated November 21, 2013, Ms. Ceresato indicated that Mr. Pitre criticized her for taking too long in the office with the result that she was late getting on cash, but that he did not say anything to Ms. Leary when she reported fifteen minutes late for work. The problem with Ms. Ceresato’s notation is that she was not scheduled to work on November 21. This again is a situation where the Employer could not determine when the incident occurred and it was therefore unable to fully defend the allegation. I note however that Ms. Ceresato does not dispute that she was late getting on cash and she acknowledged that this would have an impact on the operation of the store. She did not suggest that the way in which Mr. Pitre spoke to her about the matter was inappropriate. Ms. Ceresato could not know if Ms. Leary was late getting on cash, or why she was late or if she called in advance with a valid reason for being late. There is no basis on the available evidence to conclude that Mr. Pitre acted unreasonably in the circumstances of this event or to conclude that he treated Ms. Leary differently from the way he treated Ms. Ceresato. -28- [52] When Ms. Ceresato was on a shift which started at 6:00 a.m. during the Christmas period in 2013, Mr. Pitre asked her at one point to “face up”. Facing up essentially consists of moving the bottles on the shelves to the front with the labels facing the customer. On the following day he commented that she was facing up with too much detail and taking too long. Ms. Ceresato felt that this comment was unwarranted since she was facing up in a manner that was consistent with her training. Mr. Pitre indicated that the bottles looked perfect but explained that he wanted more volume as opposed to how the bottles looked during this busy period. Here again there was no suggestion that the way he made his comment was inappropriate. Mr. Pitre appreciated that Ms. Ceresato was not happy when he made this comment about her work. However, I agree with Employer counsel’s submission that Mr. Pitre’s job as Manager is to decide how the work should be done and to set priorities, particularly when the store is busy. There is no indication that Mr. Pitre was acting in bad faith or had some ulterior motive when he made the comment about her work. He was simply telling her what he had expected in that particular situation. I find that his comment to Ms. Ceresato in this instance was not a departure from reasonable conduct. [53] Ms. Ceresato made an undated notation about a day when she claims that Mr. Pitre allowed her go over $1,460.00 on cash without making a deposit. Ms. Ceresato testified that she felt that Mr. Pitre was ignoring her. This is in contrast to most of her complaints about Mr. Pitre paying her too much attention. Mr. Pitre could not recall such an incident. The LCBO has a policy entitled General Cashiering Guidelines. It provides that, “The total cash held by a cashier must not exceed $1,000.00 under regular circumstances, or $2,000.00 at peak periods.” Ms. Ceresato was unaware of the $2,000.00 limit and she could not recall if the incident occurred during a peak period. Mr. Pitre and Mr. Cameron testified that the decision of when to make a deposit is within the control of the cashier. When the register indicates that the amount of cash in the till is approaching $1,000.00, the cashier can call someone over and make a deposit without a direction to do so. Mr. Pitre’s expectation is that a cashier can make a deposit when the cashier decides that it is time to do so. There is no evidence indicating that Mr. Pitre was aware that Ms. Ceresato was over the $1,000.00 limit in -29- this instance and, even though Ms. Ceresato believed that Mr. Pitre was ignoring her, there is certainly no evidence that proves that he was deliberately ignoring her. [54] Sometime in late 2013, Mr. Pitre felt that it was necessary to address the extent and duration of Ms. Ceresato’s bathroom breaks during working time. It was common for Ms. Ceresato to drink from a large container of water during her shift and she did spend more time on washroom breaks than other employees. Mr. Pitre was aware that she used her cell phone while in the bathroom during working hours contrary to the rules. Mr. Pitre realized that this was a sensitive issue and that Ms. Ceresato would not welcome the discussion, but he felt it was his responsibility to raise the subject. He called Ms. Ceresato into the office for a private discussion about this issue. He approached the matter indirectly with her to discover if there was a reason that could be addressed for the excessive amount of time she spent in the bathroom. He did eventually ask her why she used the bathroom so much and whether it was because of the amount of water she drank or if there was another reason. Ms. Ceresato was not forthcoming on the issue and essentially indicated that the matter was none of his business. Mr. Pitre did not discuss the matter further with her. He did not prevent her from taking bathroom breaks and he did not discipline her for them or issue her a letter of counsel. Although Ms. Ceresato did not dispute that she spent an excessive amount of working time in the bathroom, she believed that this was a subject that Mr. Pitre had no right to ask her about. In her testimony in re-direct, Ms. Ceresato disclosed for the first time that her excessive bathroom breaks were partly due to a colitis condition. She at no time disclosed a need to be accommodated for this condition. Although she found his inquiry unwelcome, it was reasonable for Mr. Pitre to ask her about why she took excessive bathroom breaks that kept her away from her work. Ms. Ceresato did not complain about the way Mr. Pitre asked her about her bathroom breaks. I find that Mr. Pitre’s conduct in raising this sensitive subject of excessive bathroom breaks was not vexatious. [55] Ms. Ceresato testified that there were a few instances when Mr. Pitre entered the lunchroom and commented on the smell of the food that she was eating. Her notation about this subject is undated. Ms. Ceresato indicated that if she had fish for dinner the -30- evening before, she would have fish for her lunch. She did not dispute that the fish had a strong smell. Mr. Pitre ate his lunch in the lunchroom and recalled one instance when he suggested that Ms. Ceresato turn on the fan in consideration of others because of the smell of her food. He agreed that he may have told her that her food was healthy, but it stinks. Ms. Fecteau also complained about the smell of Ms. Ceresato’s food on occasion. Ms. Ceresato was reluctant to use the fan because it was noisy. Mr. Pitre never attempted to control the kind food that Ms. Ceresato brought into the lunchroom. He simply asked her to use the fan if she was eating food that had a strong smell. Ms. Ceresato commented during her testimony that this incident led her to believe that Mr. Pitre not only disliked her, but also disliked the food she ate. In my view, Mr. Pitre had the right to address an issue that affected those individuals who use the relatively small lunchroom. I am satisfied that Mr. Pitre’s conduct relating to this issue was not a departure from reasonable conduct. [56] Ms. Ceresato complained that Mr. Pitre blamed her for things that went wrong in the store when she had nothing to do with them. She indicated that co-workers would joke that it did not matter if they made a mistake because she would be blamed anyway. She never complained to anyone in management that co-workers were joking in this way. In support of her allegation that Mr. Pitre often blamed her when she was not responsible, Ms. Ceresato referred to three incidents without reference to when they occurred. After coffee was spilled on the attendance register in the office, Mr. Pitre asked Ms. Ceresato if she had been in the office and spilled coffee. She replied that she was not at work on the day in question. On another occasion, when he apparently believed that Ms. Ceresato had used the zamboni, Mr. Pitre told her that the operator was supposed to empty the machine. Ms. Ceresato responded that she had not used the zamboni. In another instance, Mr. Pitre asked her if she had been doing a load and did not clean up the broken bottles. Ms. Ceresato indicated that she was unaware of any broken bottles. Mr. Pitre could not recall the last two events. It appears that in each instance Mr. Pitre believed that Ms. Ceresato could provide him with information about the incident or, in the case of the zamboni, he mistakenly believed that she had used the machine. Once Ms. Ceresato gave her response to each of his questions, Mr. Pitre did not pursue the matters further. She was not disciplined or counseled for any of -31- these matters and there is no indication that the way he spoke to her about these matters was inappropriate. It appears from Ms. Ceresato’ s testimony that Mr. Pitre was simply acting reasonably within the scope of his managerial responsibilities when he asked her about these matters. It is difficult to conclude from these three examples that Mr. Pitre had a propensity to blame Ms. Ceresato for things that went wrong in the store. [57] Ms. Ceresato complained that Mr. Pitre often communicated with her by texting. She was particularly troubled by the timing of a text that she received from him at 11:00 p.m. She had no issue with the content of the communication which was always work related, but she preferred to receive phone calls rather than texts, even though she would communicate on occasion with Mr. Pitre by sending him a text message. Ms. Ceresato did not tell Mr. Pitre that she did not want him to send her text messages. However, she did advise Mr. Parker that she did not want Mr. Pitre to communicate with her in this way. Mr. Parker did suggest to Mr. Pitre that he use the old school method of using the phone, however he did not instruct Mr. Pitre to never send text messages to employees. I accept that Ms. Ceresato found text messages from Mr. Pitre unwelcome. But as a Manager Mr. Pitre has the right to decide on how he will communicate with employees. In my view, Mr. Pitre’s decision to communicate with employees, including Ms. Ceresato, by sending text messages was not vexatious or a departure from reasonable conduct. [58] Ms. Ceresato claims generally that Mr. Pitre scheduled her shifts unfairly, but that this was particularly the case when she was being accommodated with the two hour cash restriction. As noted previously, the earliest casual shift starts at 10:00 a.m., the next earliest shift starts at 11:00 a.m. and then there are two other casual shifts that are scheduled to start after 11:00 a.m. Ms. Ceresato believed that she was not being scheduled to her fair share of shifts that started at 10:00 a.m. She wanted to get her hours in as early as possible so she could spend more time in the evening with her mother. The Union did not take the position that Ms. Ceresato was being scheduled in a way that was contrary to the Collective Agreement. The evidence indicates that apart from the period of time when she was being accommodated with a cash restriction, Ms. -32- Ceresato received her fair share of 10:00 a.m. shifts. During the period from December 7, 2012, to June 24, 2013, when her daily time on cash was limited to no more than two hours, Mr. Pitre often scheduled her to start at 11:00 a.m. This is one of the few occasions when Ms. Ceresato complained to Pitre about a matter that she felt was unfair. She discussed her schedule with Mr. Pitre in his office on May 3, 2013. Although I touched on this meeting when I referred to an instance when Ms. Ceresato became upset and lost her temper (see paragraph 19), it is necessary to now reiterate what occurred on that occasion. Mr. Pitre referenced this meeting in an email to Mr. Parker dated May 4, 2013. At their meeting on May 3, Mr. Pitre reiterated what he had told her before about scheduling, namely that since there were more cashiers on the 11:00 a.m. shift, this was the best shift for her from the perspective of her cash restriction and the operational needs of the store. Ms. Ceresato became increasingly upset as the discussion progressed. Mr. Pitre reminded her that she could change her availability. Although Ms. Ceresato believes otherwise, I find that Mr. Pitre did not ask her to provide the Employer with a doctor’s note in order to change her accommodation and that her emotional state was such at the time that she simply did not understand what he was telling her. In order to be heard above her yelling, Mr. Pitre raised his voice as well. He testified that he regretted having done so. Contrary to Ms. Ceresato’s subjective view of the matter, the objective circumstances illustrate that Mr. Pitre scheduled employees, including Ms. Ceresato, in a fair and reasonable manner. Mr. Parker reviewed Mr. Pitre’s scheduling practices and concluded that he was better at scheduling than his other store managers. I am satisfied that even during the period when Ms. Ceresato had a two hour cash restriction, Mr. Pitre scheduled her shifts on the basis of a sound rationale and that his conduct with regard to her scheduling was not a departure from reasonable conduct. Scheduling is a complex matter and it is difficult to fully satisfy every employee’s interest in securing a more desirable shift. It is also my view that Mr. Pitre raised his voice during the meeting on May 3 only so that he could be heard over Ms. Ceresato’s yelling and that this conduct does not amount to vexatious or bullying behaviour in these circumstances. -33- [59] Ms. Ceresato alleged that Mr. Pitre did not let her perform cycle counts. Even going back to her time with previous managers, it appears that Ms. Ceresato had difficulty in mastering the inventory control tool of cycle counts, particularly that part of the process that involved the use of a computer. It was up to her to take the initiative to learn to do cycle counts and to learn the relevant computer skills. When Mr. Pitre gave her an opportunity to do cycle counts, Ms. Ceresato made mistakes, resulting in a mess that took a long time to fix. When a further opportunity presented itself to do cycle counts, Mr. Pitre told her that he needed someone who knew what they were doing and then selected another employee to do the job. Ms. Ceresato indicated that this made her feel stupid. Ms. Ceresato did not claim that she could perform cycle counts competently and the evidence indicates that she had not mastered that task. As a manager, Mr. Pitre’s role is to assign tasks to employees who are capable of performing them competently. Although his decision not to assign her cycle counts made her feel stupid, Ms. Ceresato simply did not have the ability to perform cycle counts competently. There was no suggestion that the way in which Mr. Pitre spoke to Ms. Ceresato about this issue was inappropriate. I find that Mr. Pitre’s conduct in not assigning cycle counts to Ms. Ceresato was not a departure from reasonable conduct in the circumstances. [60] Ms. Ceresato also asserted that Mr. Pitre assigned her undesirable duties, such as the cleaning of washrooms, more often than he assigned these duties to other employees. She never complained to anyone at the time about the assignment of these duties. Mr. Cameron testified that Ms. Ceresato was not assigned the undesirable duties more often than other employees and Mr. Pitre indicated that he made an effort to spread these types of duties around to all employees. I note that while she was on the accommodation that restricted her hours on cash, Ms. Ceresato would likely have been assigned more non-cash related duties than other employees. As well, during the month that she was on modified work due to the injury to her right hand, Ms. Ceresato may have been assigned to the less desirable jobs more often simply because she was unable to perform the usual lifting jobs required of her CSR position. Other than her assertion that she was assigned undesirable jobs more often than her co-workers, there was simply no specific evidence to support Ms. Ceresato’s perception that she was -34- assigned such work more often. Without supporting evidence, I am not prepared to find that Mr. Pitre departed from reasonable conduct when he assigned undesirable duties. [61] In early 2014, well after her accommodation of a two hour cash restriction had ended, Ms. Ceresato continued to claim that she was assigned cash duties more often than other employees. As noted previously at paragraph 23, Mr. Pitre prepared an analysis in response to her complaints that showed that Ms. Ceresato had the lowest overall number of cash transactions per hour among casual cashiers during a representative period. There was simply no evidence to suggest that Mr. Pitre treated her differently than other casual employees with respect to her time on cash. Indeed, it is likely that he treated her more favourably with respect to this duty. Union counsel argued that the Employer had a duty to enquire and failed to do so when Ms. Ceresato presented the doctor’s note in June 2013 advising that she can return to normal duties, thereby ending her cash restriction. I disagree with this submission. Mr. Pitre often did ask Ms. Ceresato as to how she was doing. However, I find that there was no obligation on the Employer in the circumstances to question Ms. Ceresato or her doctor as to whether there was a justifiable basis for ending her accommodation at that time. As Employer counsel suggested, it is likely that an attempt by the Employer to question the June 2013 doctor’s note would have been met with an allegation by Ms. Ceresato that this was just another example of harassment by Mr. Pitre. [62] The final matter to address is Ms. Ceresato’s claims that Mr. Pitre monitored her excessively. One aspect of this claim is her assertion that he watched her on the store’s video surveillance security system. Other employees also believed that Mr. Pitre used this system to monitor them. Mr. Pitre spent a lot of his time in his office and he had moved the surveillance monitor to his desk and placed it beside his computer monitor. On one occasion Mr. Pitre observed Mr. Cameron on the security monitor and as a joke he advised him to get back to work. As a test, Ms. Ceresato and Ms. Munn went into the back a few times on one day only to have Mr. Pitre show up each time after a few minutes. They assumed that he made an appearance at the back because he lost sight of them on the security monitor. These incidents fuelled speculation that Mr. Pitre used the security system to monitor employees. Mr. Pitre was well aware that -35- the employees thought that he watched them on the security monitor. After he became aware of the speculation, Mr. Parker counseled Mr. Pitre not to use the security system for monitoring employees and encouraged him to get out of the office and onto the sales floor more often. Mr. Pitre denied that he used the security system as a tool for monitoring Ms. Ceresato or for monitoring other employees. He indicated that he used the security system for watching suspicious customers and for other security related reasons. If he paged an employee and the employee did not respond, he might check the security monitor to try to locate the employee. He indicated that he might notice what an employee was doing when he used the security system for its intended purpose, but that this was incidental and that he did not have time or the intention to use the security system to keep an eye on employees. I am not prepared to conclude on the evidence that it was Mr. Pitre’s general practice to use the security system to monitor employees. I find that the extent to which he did observe the activities of employees on the security system when he was checking for security issues does not constitute conduct that was vexatious. There is certainly no indication that he was singling out Ms. Ceresato as far as his use of the security monitor was concerned. [63] The other aspect of Ms. Ceresato’s excessive monitoring claim is that Mr. Pitre was often following her around. There is no dispute that Mr. Pitre would keep an eye on all employees in the store. Taking Mr. Parker’s advice to get out of his office more frequently in order to build a relationship with his employees, Mr. Pitre would often ask an employee how he or she was doing and then discover what the employee was doing. He often checked to see how and when the tasks he assigned were being completed. Part of his job as manager was to monitor the performance of employees to ensure that the work was done well and in a timely way and to be in a position to complete the yearly PAs. There is no dispute that Mr. Pitre was involved in monitoring Ms. Ceresato to a significant degree. He indicated that he ended up watching her more than other employees for the reason that she had more issues than other employees and required more follow up. The consistency of her work performance and motivation were not always up to the standards of the store. This was especially the case after January 2014 when Ms. Ceresato worked nights at another job. For the most part, Ms. Ceresato could not recall when Mr. Pitre was following her around too frequently. In the absence -36- of knowing the specific times when she claimed that Mr. Pitre was following her around too often, it is not possible to determine whether a close monitoring of her on those occasions was warranted or not in the circumstances. However, given the number of issues Ms. Ceresato had, I find it more probable than not that generally Mr. Pitre had a reasonable basis for concluding that she required more monitoring than other employees. [64] Ms. Ceresato did identify April 25, 2014, as a day when Mr. Pitre was following her around all day. I referred to the events of this day earlier in this decision at paragraphs 25 and 26. The notation Ms. Ceresato made for that day referenced that Mr. Pitre asked what she was doing at times and indicated that he wanted her back on carts. She noted that Mr. Pitre “rode me all day to the point of tears” and that she left the store due to his harassment before the completion of her shift after being told to do so by the Union President. I set out in paragraph 25 an excerpt from Mr. Pitre’s email to Mr. Parker dated April 25, 2014, wherein he sets out his account of what occurred on that day. In essence, Mr. Pitre wanted to determine if the comments from co-workers about her poor demeanor and performance were accurate. He asked her to focus on putting away stock from carts and he proceeded to keep an eye on her to assess whether she would keep on task. He noticed that she took a very long time to deal with three carts. When he observed her doing other things, he did ask her what she was doing and reminded her to focus on carts. He did not berate her for taking too long on carts and he did not berate her for doing other duties. He simply asked her what she was doing on occasion and reminded her to focus on the task that she had been assigned. At one point he asked her to take an order when she was talking to Ms. Munn. Ms. Munn thought that Mr. Pitre was rude to interrupt them, but she agreed that taking an order from a Licensee was more important than any mentoring that she was doing with Ms. Ceresato. Mr. Pitre recognized that Ms. Ceresato did not welcome his monitoring of her work generally and that she did not welcome the fact that he was monitoring her closely on April 25, 2014. However, he believed in the circumstances that it was his obligation to observe Ms. Ceresato more closely at times, including on April 25, 2014. I am satisfied that Mr. Pitre was not harassing or bullying Ms. Ceresato when he engaged in the legitimate managerial exercise of closely monitoring her work. -37- Although I appreciate that Ms. Ceresato did not welcome what she perceived as excessive monitoring, I find that Mr. Pitre was acting in good faith and that his monitoring of Ms. Ceresato did not depart from reasonable conduct in the circumstances. [65] As I noted previously, the allegations of harassment and bullying in the workplace are serious matters. In this case the allegations are not only serious for Ms. Ceresato, but for Mr. Pitre as well. I have no doubt that the serious allegations affected other employees in what is a relatively small workplace. I accept that Ms. Ceresato strongly believes that she was harassed and bullied by Mr. Pitre with the result that she was made to feel stupid and incompetent, etc. I agree with the Union’s submission that what might appear to be minor or subtle instances of harassment by a manager could have a significant cumulative effect on an employee. However, as my previous findings have disclosed, the conduct of Mr. Pitre relied by Ms. Ceresato when viewed individually or from a cumulative perspective did not amount to harassment or bullying based on an objective assessment of the evidence. I have determined that Mr. Pitre acted with a legitimate work purpose and reasonably in the circumstances, without being vexatious or abusive, when he carried out his managerial responsibilities with respect to Ms. Ceresato. It is these considerations which lead me to find that the allegations of harassment and bullying made by Ms. Ceresato against Mr. Pitre have not been established. Accordingly, Ms. Ceresato’s grievance dated June 17, 2014, is hereby dismissed. [66] I now turn to the circumstances relevant to the termination of Ms. Ceresato’s employment. As previously indicated, Ms. Ceresato became upset with Mr. Pitre on April 25, 2014, and left the store before the completion of her shift without telling Mr. Pitre that she was leaving. Mr. Parker first heard about this incident from the Local Union President. Mr. Jeremschuk told him that he had received a call from Ms. Ceresato in which she had told him that she was very upset with Mr. Pitre. Mr. Jeremschuk also advised Mr. Parker that he told Ms. Ceresato to leave the workplace if she was that upset. Mr. Parker then called Mr. Pitre who confirmed that Ms. Ceresato had left the store, but Mr. Pitre at that time did not know why she had left. Ms. -38- Ceresato called in sick and did not work her shift on April 26, 2014. It was the events of April 25, 2014, that led Mr. Parker to decide that it was time to transfer Ms. Ceresato to another store. [67] The authority to transfer an employee lies with a District Manager, not with a store Manager. Mr. Parker explained that transfers are not uncommon and are made for operational reasons. Mr. Parker concluded that he had no alternative but to transfer Ms. Ceresato to another store after she left the store on April 25, 2014, before completing her shift. He made this decision on his own without input from Mr. Pitre. He decided to transfer Ms. Ceresato to Store #34 because this was quickest and easiest way to facilitate a transfer. There was an employee at Store #34 who had requested a return to Store #278 and a quick switch could be managed easily. Mr. Parker believed that a transfer to Store #34, an “A” store, was a good fit for Ms. Ceresato since her hours would be the same, she likely would get more day shifts and she was familiar with the store. Following the usual procedure, Mr. Parker had the standard transfer letter prepared and sent off to Mr. Pitre to deliver to Ms. Ceresato on April 29, 2014. Mr. Pitre was informed of the transfer just prior to receiving the transfer letter signed by Mr. Parker and he was somewhat caught off guard by this development. During a discussion on April 29, 2014, about another matter, Mr. Parker gave Mr. Jeremschuk a heads up that he may be getting a call from Ms. Ceresato because was about to find out that she was being transferred. Aware that transfers were not uncommon and of Ms. Ceresato’s situation at Store #278, Mr. Jeremschuk, according to Mr. Parker, did not express a concern about the transfer. Mr. Jeremschuk could not recall this conversation. [68] Ms. Ceresato was scheduled to work from 10 a.m. until 6:30 p.m. on April 29, 2014. At the start of her shift Ms. Ceresato was somewhat tired, but her mood was good. During the early part of her shift she told other employees that she had heard from individuals at the Union that Mr. Pitre would be transferred soon and that she would not be transferred. There was a managers meeting being held that morning and it was not uncommon for rumors about transfers to circulate when a managers meeting took place. At about 4:30 p.m., Mr. Pitre called Ms. Ceresato to his office to give her the -39- transfer letter and to discuss the transfer with her. Unsure of how she would react to the news of the transfer, Mr. Pitre asked Mr. Cameron to attend the meeting. Mr. Pitre gave her the transfer letter which indicated that she was being transferred to Store #34 effective May 12, 2014. Ms. Ceresato immediately reacted emotionally to the news of her transfer. She became angry and started yelling at Mr. Pitre that the transfer was his fault, as she waved the letter in front of his face. Ms. Ceresato then stormed out of the office with the result that Mr. Pitre did not have the opportunity to have a fulsome discussion with her about the transfer. The meeting lasted less than a minute. Mr. Pitre asked Mr. Cameron to check on Ms. Ceresato. [69] Mr. Cameron followed Ms. Ceresato into the warehouse area. Ms. Brown and Ms. Bialek were unloading cases off skids onto carts, and Ms. Fecteau was also in the area. Ms. Ceresato continued to be angry and upset; she was yelling and swearing loudly, with arms flaying. Her anger was directed at Mr. Pitre as she yelled often that he was a “fucking asshole”. Given that the area had turned into a highly stressful setting, Ms. Bialek left the warehouse. As Ms. Ceresato walked between aisles toward the kitchen, she struck boxes of product forcefully with her hand leaving indentations on the top boxes. She entered the kitchen with the transfer letter in her hand while Ms. Fecteau was in there on a break. While in the kitchen Ms. Ceresato stated, among other things, that she “wasn’t fucking going”, that she “wasn’t going to a fucking Polish beer store” and that she “hated him” as she referred to Mr. Pitre. Ms. Ceresato threw the transfer letter into her locker and closed the locker door. As she exited the kitchen, Ms. Ceresato told Ms. Fecteau that she was not mad at her and Ms. Fecteau replied that she knew that. Ms. Fecteau described her reaction about the situation as one of shock and being shaken up, although she did not fear for her own safety. After leaving the kitchen Ms. Ceresato continued pacing in the warehouse while still in an angry and agitated state. More than once she stated that “if I had a gun right now I would shoot him”. After hearing these statements and after she believes she asked Ms. Ceresato to calm down, Ms. Brown left the warehouse. As she started to calm down somewhat at the urging of Mr. Cameron, Ms. Ceresato also stated that “I want to slit his throat right now”. Although he did not hear the gun statements, Mr. Cameron clearly heard her make the statement about slitting Mr. Pitre’s throat. Mr. Cameron spent at least twenty -40- minutes in the warehouse trying to calm Ms. Ceresato down. She finally did calm down and returned to perform her usual duties. Mr. Cameron had not heard such statements from an employee before and was uncertain about what he should do. He and Ms. Brown did not inform Mr. Pitre about the threatening statements made by Ms. Ceresato. Mr. Cameron indicated that he did not want to scare Mr. Pitre and it appeared that he was just thankful that Ms. Ceresato had calmed down eventually. [70] There was nothing of any relevance that occurred at Store #278 on April 30, 2014. On that day Mr. Pitre was scheduled off that day and Ms. Ceresato worked from noon until 8:30 p.m. [71] Ms. Ceresato was scheduled to work from noon to 8:30 p.m. on May 1, 2014. At about 3:30 p.m., she was on the phone in the warehouse speaking to Mr. Jeremschuk about getting the transfer to Store #34 reversed. Mr. Cameron and Ms. Brown were also in the warehouse at the time. Ms. Ceresato’s conversation with Mr. Jeremschuk did not go as she had hoped. It ended with him telling her “to get her ass over there (Store #34); you have to go”. This was enough to cause Ms. Ceresato to go on an angry tirade similar to the one she had in the warehouse on April 30. Although she had no significant interaction with Mr. Pitre on May 1, she directed her anger at him again by yelling and swearing with a loud and angry voice. Referring to Mr. Pitre, Ms. Ceresato loudly stated that, “If I had a gun I would use it on him”. Then she added that, “Maybe I should just use it on myself”. When Ms. Brown asked what good that would do, Ms. Ceresato stated in a matter of fact way that, “I do not give a shit, it would be worth it.” At this point Ms. Ceresato was quite upset and crying. Mr. Cameron described Ms. Ceresato’s threat and statements as scary, the likes of which he had not heard before in the workplace. He took her words seriously and he felt scared for Mr. Pitre, for Ms. Ceresato and for the staff. The fact that this was second time that Ms. Ceresato made threats of violence against Mr. Pitre, that she mentioned a gun and now indicated that she might hurt herself caused Mr. Cameron to appreciate the seriousness of the situation. He left the warehouse and went to Mr. Pitre’s office to tell him about the threats that Ms. Ceresato had made against him on April 29 and on that day. In hindsight, Mr. Cameron recognized that he should have reported the threats that were -41- made on April 29 as soon as they were made. Ms. Brown indicated that she would have reported the threatening statements made by Ms. Ceresato on that day if Mr. Cameron had not done so. [72] The evidence about the significant events that occurred on April 29 and May 1 in the warehouse essentially came from Ms. Ceresato, Ms. Brown and Mr. Cameron. To the extent that the testimony of Ms. Brown and Mr. Cameron differed from the testimony of Ms. Ceresato, particularly about the threats made by Ms. Ceresato, I preferred the testimony of Ms. Brown and Mr. Cameron as reflected in my findings of fact as described in the preceding few paragraphs. Before I continue with the chronology of events, I will to refer to the portion of Ms. Ceresato’s testimony in which she gave her version of what occurred on April 29 and May 1. [73] Ms. Ceresato indicated that she became upset when she learned that she was about to be transferred to Store #34. She raised her voice and told Mr. Pitre that it was all his fault, but she did not admit to shaking the letter in his face. She stated that she shook the letter towards Mr. Pitre from a distance of about two to four feet. She indicated that it was not the transfer itself that bothered her, but rather it was the store she was being transferred to that troubled her. She believed that she would lose hours at Store #34 and, more importantly, she felt that the absence of a vintages section at Store #34 meant that it would be more difficult for her to get a PC position because of fewer opportunities for tastings and no access to a PC. She attempted to contact Mr. Parker and Mr. Jeremschuk without success. She agreed that she was angry, loud, agitated and swearing in the warehouse. She again referred to growing up in a family where it was common for anger and screaming to be displayed. She stated that she did slap some cases on April 29 as she walked toward the kitchen, but that she did not cause any damage to the cases. She indicated she did speak to Mr. Jeremschuk on May 1 and that he essentially told her that she was not a PC yet and “to suck it up”. She became upset again because she felt that her goal of becoming a PC was coming to an end. She first described what occurred in the warehouse without referring to her threats against Mr. Pitre. When she was specifically asked about her threatening comments, she indicated that the specific words she used and the way she expressed -42- them were different from what Mr. Cameron and Ms. Brown had described. She denied saying, “I want to slit his throat right now” on April 29. She indicated instead that she said, “I want to punch him in the throat” and ended these words with a laugh. This version of what she said was not put to Mr. Cameron during his testimony. Ms. Ceresato stated that the punching in the throat comment comes from the television comedy show called the Big Bang Theory and that she ended the words with a laugh because her comment was an attempt to be humorous. With respect to her gun comments, she indicated that she said, “If I had a gun, I would take him out back and shoot him like in the old west”. As will become evident, this version of what she said is different from the version she gave on a different occasion. Ms. Ceresato did not recall saying that she would use the gun on herself. She characterized the threatening statements as “verbal vomit”, “blowing off steam” and “venting” out of frustration. She indicated that she was not thinking at the time, that the comments were not intended to be threats and that she did not intend to cause harm to Mr. Pitre, but that she now recognizes that her comments were inappropriate. Ms. Ceresato testified that she regrets making the threatening statements. [74] As noted previously, Mr. Cameron went to the office on May 1 and told Mr. Pitre about Ms. Ceresato’s behaviour on April 29 and May 1, including the threats she had made. He told him about the slitting of the throat threat made on April 29 and the gun threat that she had made on that day. Mr. Cameron described Mr. Pitre’s reaction as one of shock and worry and indicated that Mr. Pitre was scared and started pacing in his office. He stated that Mr. Pitre is usually very calm and that he had never seen him act like this before. Initial efforts to contact Mr. Parker were unsuccessful but it was not long before he returned their call and Mr. Cameron filled him in on what had occurred. The basic features of what occurred next can be summarized as follows. Mr. Cameron walked Mr. Pitre to his car and Mr. Pitre left the store for home. Mr. Cameron then called the police. Two officers arrived and interviewed some witnesses while Ms. Ceresato was on her lunch break away from the store. Ms. Bruce, Manager at Store #367, came to the store at Mr. Parker’s request to be the acting District Manager. Ms. Fockens, Manager at Store #490, also appeared at the store to see if she could help out. One of the police officers phoned Mr. Pitre at his home and asked him if he would -43- like charges laid against Ms. Ceresato for uttering threats. Mr. Pitre stated that he wanted charges laid since he felt that Ms. Ceresato would follow through with the threats. The police arrested Ms. Ceresato outside of the store when she returned from her lunch break. As the police were about to leave with Ms. Ceresato, Ms. Bruce told her that she was being relieved from duty and that she would soon receive a letter advising her of next steps. At Ms. Bruce’s request, Mr. Cameron called all the store employees to tell them what had occurred and to offer the EAP. Ms. Ceresato was charged with two counts of uttering threats – cause death or bodily harm and then released on a promise to appear. [75] Mr. Jeremschuk arrived at Store #278 after the police had left with Ms. Ceresato. While in the office with the two managers and Mr. Cameron he asked the managers, “What the fuck is going on here?” During the conversation, Mr. Jeremschuk claims that Mr. Cameron said, “I got her, I finally fucking got her.” He testified further that Mr. Cameron realized what he said and left. Mr. Jeremschuk did not respond to Mr. Cameron after he made the statement. Mr. Cameron denied that he made the statement attributed to him by Mr. Jeremschuk. Ms. Bruce and Ms. Fockens testified that they did not recall Mr. Cameron making such a statement, that they would have recalled the statement if it had been made and that they would have reported the statement to Mr. Parker. In his testimony, Mr. Jeremschuk was often vague, could not recall many of the events he was asked about in chief and he did not take any notes. It appears that he did not tell anyone about the statement until after this proceeding commenced. I agree with Employer counsel’s submission that Mr. Cameron’s conduct was not consistent with someone who was out to get Ms. Ceresato. In the context of knowing that she would soon be transferred, Mr. Cameron did not report the threat she had made on April 29 and he made considerable efforts to calm Ms. Ceresato down on both April 29 and May 1. As I noted previously, I found Mr. Cameron to be a credible witness. In considering the evidence on this point, I am satisfied that the Union has not established that Mr. Cameron made the statement attributed to him by Mr. Jeremschuk. [76] Mr. Parker advised Ms. Ceresato by letter dated May 2, 2014, that she was -44- suspended with pay pending an investigation of her conduct. He indicated that he would be conducting the investigation and asked her to provide him with a written statement explaining her conduct by no later than May 9, 2014. As part of his investigation Mr. Parker interviewed a number of employees and he asked them to provide written statements. No pre-disciplinary meeting was held because the Employer had been advised by the Union that Ms. Ceresato would not attend such a meeting. Ms. Ceresato had been advised by her criminal lawyer not to attend any meeting with the Employer and not to provide the Employer with a written statement due to the outstanding charges against her. Mr. Parker had no alternative but to act on the information available to him and he ultimately decided to terminate Ms. Ceresato’s employment. In the termination letter dated June 11, 2014, Mr. Parker wrote in part as follows: … Having regard to all of the above and all the information available to me, I have concluded that you did engage in the conduct noted above on April 29, 2014 and May 1, 2014. This conduct includes but is not necessarily limited to the following: - When your manager gave you a copy of a letter notifying you of your transfer to another store, you reacted in an angry and unacceptable fashion, inter alia waving the letter angrily in your manager’s face, raising your voice at him, and telling him that you blamed him for the transfer (or words to that effect); - On the day that you received your transfer letter, you told a co-worker that you would like to “slit” your manager’s throat (or words to that effect); - On at least two (2) occasions you told a co-worker that you would “use a gun” on your manager (or words to that effect); - In and around the time you made these statements, you engaged in conduct such a slamming a locker door, punching product cases, yelling and cursing. Your conduct alarmed other employees, it is very serious and I have concluded that discipline is warranted in the circumstances. In determining the appropriate level of discipline, I have considered the following. First, you have a history of angry outbursts in the workplace and poor interactions with others and you have been counseled with respect to same. For example, in July 2012, you were counseled by the store manager for displays of anger in the workplace on a couple of occasions. In addition, in your performance appraisals in 2008, 2010 and 2013 it has been identified that an improvement is required in communications and relationships. It was recommended that you manage your emotions in the customer area and with your co-workers. Second, as an employer the LCBO is required by the Occupational Health and Safety Act to take every precaution reasonable in the circumstances for the protection of a worker, including protection from workplace violence. The LCBO concludes that your conduct constitutes workplace violence. Furthermore and /or in the alternative, your -45- conduct is contrary to LCBO Policy 0408-01 - Discrimination and Harassment Prevention, and LCBO Policy 0106-08 - Workplace Violence Prevention, both of which you have been trained on. Your conduct also constitutes extreme insolence and insubordination, and is completely unacceptable. Your conduct has irreparably breached the LCBO’s trust in you and irreparably damaged the employment relationship. Accordingly, and having regard to all of the above, please be advised that you are discharged from your employment with the LCBO for just cause, effective immediately. … [77] Soon after she was suspended pending an investigation, Ms. Ceresato took advantage of the EAP by contacting Homewood Health (“Homewood”) for anger management counseling. She testified that she wanted to “nip in the bud” the family traits of yelling and screaming because she “did not want to be like that person”. A letter from Homewood dated September 2, 2014, confirms that she attended six one- hour sessions with a counselor between May 5, 2014 and August 26, 2014. Ms. Ceresato believes that she had two further sessions with the counselor in September of 2014. Ms. Ceresato testified that she found the counseling sessions to be very helpful. She indicated that she learned to recognize the triggers that caused her to become angry and she was provided with tools and exercises to control her emotions and anger. [78] Further to Mr. Parker’s request for her to prepare a written statement setting out her version of the relevant events, Ms. Ceresato did prepare a letter addressed “To whom it may concern” with respect to her “alleged behaviour on April 30th and May 1st.” The first date in the letter should have been April 29. She characterized the letter in part as an apology. She did not give the letter to anyone at the LCBO, even after the conclusion of the criminal proceeding. The Employer only became aware of the letter during this proceeding. What Ms. Ceresato sets out in the letter is somewhat similar to her testimony about what occurred on April 29 and May 1. She claims that her transfer was brought on “by the on-going bullying and harassment by Sylvain Pitre”. She refers to the events of April 29 and May 1 without acknowledging the specific threats she made against Mr. Pitre. She does not indicate that she recognized that the words she used could have scared individuals at the workplace. In the last sentence of the letter she wrote, “I truly regret everything that was said…” -46- [79] The criminal charges were dealt with in the Ontario Court of Justice on October 15, 2014. During the proceeding, Ms. Ceresato’s counsel advised the Court that she admitted to saying, “If I had a gun I’d shoot him” when referring to Mr. Pitre. The additional words, “like in the old west” were not included in the admission. The two charges of uttering threats to cause death or bodily harm were withdrawn upon Ms. Ceresato agreeing to a peace bond for a period of 12 months. The key conditions of the peace bond were that she abstain from communicating or associating with Mr. Pitre and that she not have a weapon in her possession. [80] Ms. Ceresato took some more wine courses after her discharge. Her efforts to obtain employment in the wine and service industry were unsuccessful. She eventually started her own business at a horse boarding facility where she feeds and waters horses. The owner of the facility left the country and she rents the operation. She lives rent free and makes about $500.00 per month. She continues to send out her resume in the hope of securing a better paying position. [81] Finally, I note that there was some evidence about how some of the employees at Store #278 were affected by the threats of violence made by Ms. Ceresato. For example, Mr. Cameron was clearly scared, anxious and worried for Mr. Pitre’s safety. He believed that Ms. Ceresato might very well harm Mr. Pitre and herself. He indicated that he would not feel comfortable working with Ms. Ceresato again. As one might expect, the threats of violence had their greatest impact on Mr. Pitre. [82] When he heard on May 1 about the threats of violence made by Ms. Ceresato and the context in which they were made, Mr. Pitre became quite anxious and was shaking uncontrollably. He understood from Mr. Cameron’s description of the incidents that Ms. Ceresato had threatened to kill him by using either a knife or a gun while she was in a very angry state of mind. He realized that Mr. Cameron was alarmed by the threats and believed that Ms. Ceresato might cause him physical harm. Mr. Pitre’s reaction was informed by Ms. Ceresato’s history of mood swings and angry outbursts. He was still scared and upset when he was called at home by the police. He advised the police that he wanted Ms. Ceresato charged because he continued to believe that -47- she could carry through on her threats. He was still struggling on the evening of May 1 when he told his family about the threats. On his way to work on the following day he still struggling emotionally and he stopped twice because he was crying. He spoke to the Homewood counselor who was at the store. Because he continued to feel anxious, was unable to sleep and had difficulty concentrating, he consulted his doctor and then received further counseling. He saw a counselor once a week for a month to get his thoughts together and to get advice on how to sleep better and how to best deal with the stressful impact of the situation on his wife and three sons. Ms. Ceresato’s threats of violence against him were still in his mind when she entered into the peace bond. Every time he saw a Ford truck he would take a second look to be sure that it was not Ms. Ceresato. Prior to the Court proceeding he advised the Crown that he was fearful for his life and believed that Ms. Ceresato could still follow through on her threats. When he first testified in this proceeding, Mr. Pitre indicated that the threats still affected him and that reliving the experience through his testimony was difficult. He stated that Mr. Ceresato’s threats of violence set him back emotionally and professionally. In around July 2014, Mr. Pitre was transferred to Store #539. Mr. Parker advised Mr. Pitre that the transfer was a way for him to get a fresh start. Mr. Pitre did not have any input into the decision to terminate Ms. Ceresato’s employment. [83] The Occupational Health and Safety Act (“OHSA”) defines workplace violence as follows: “workplace violence” means, (a) the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker, (b) an attempt to exercise physical force against a worker, in a workplace that could cause physical injury to the worker, (c) a statement or behaviour that is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in the workplace, that could cause physical injury to the worker. [84] The Employer has a Workplace Intimidation & Violence Prevention policy. It has a zero tolerance approach towards intimidation and violence which means that “any form of intimidation, aggression, threats or acts of violence that occur in the workplace -48- will not be tolerated.” “Workplace Violence” under the policy adopts the definition set out in the OHSA and provides that employees who engage in workplace violence or breach the policy in any way may be subject to disciplinary action, up to and including dismissal. Ms. Ceresato received training on this policy prior to and subsequent to Bill 168 coming into effect. [85] Given the extensive nature of the submissions on the discharge issue, I will refer to some of those submissions in my reasons as opposed to setting them out in full. In support of her submissions on the discharge issues, Employer counsel relied on the following decisions: Re MacDonalds Consolidated Ltd. and Retail Wholesale Union, Local 580 (Zerr) (1990), 14 L.A.C. (4th) 379 (McKee); Re Saint John Shipbuilding Ltd. and Marine and Shipbuilding Workers, Loc. 3 (1992), 26 L.A.C. (4th) 361 (D. MacLean); Re Shoppers Drug Mart Store No. 222 and Sidhu (2008), 173 L.A.C. (4th) 307 (Larson); Western Star Trucks Inc. v. International Assn. of Machinists and Aerospace Workers, Lodge 2710 (Walker), [1998] B.C.C.A.A.A. No. 395 (Blasina); Re Livington Distribution and Industrial, Wood and Allied Workers of Canada, Local 700 (Manilall) (2001), 94 L.A.C. (4th) 129 (Stewart); Re McCain Foods Canada and United Foods and Commercial Workers International Union, Local 114P3 (Ellis) (2002), 107 L.A.C. (4th) 193 (Simmons); Re Canadian National Railway Co. and C.A.W. (Gareau) (2004), 133 L.A.C. (4th) 190 (M. Picher); Re Kingston (City) and Canadian Union of Public Employees, Local 109 (Hudson) (2011), 210 L.A.C. (4th) 205 (Newman); Re Canadian National Railway Co. and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 100 (Day) (2013), 235 L.A.C. (4th) 407 (Monteith); Toronto Transit Commission v. Amalgamated Transit Union, Local 113 (Davis), [2017] O.L.A.A. No. 59 (Slotnick); Re New Flyer Industries Ltd. and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW- Canada), Local 3003 (Salvador) (2010), 203 L.A.C. (4th) 129 (Peltz); Canada Post Corporation and Canadian Union of Postal Workers (Zachar), [1998] C.L.A.D. No. 811 (Shime); Ontario Liquor Boards Employees’ Union v. Ontario (Liquor Control Board) (Devlin), [2004] O.G.S.B.A. No. 89 (Watters); Re Bosal Canada Inc. and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW- Canada), Local 1837 (Curry) (2004), 129 L.A.C. 446 (Hinnegan); Ontario Public Service -49- Employees Union v. Ontario (Liquor Control Board) (Carmichael), [2010] O.G.S.B.A. No 264 (Johnston); Ontario Public Service Employees Union v. Ontario (Liquor Control Board) (Anagnostopoulos), [2017] O.G.S.B.A. No 28 (Watters); St. Michael’s Hospital v. Brewery, General and Professional Worker’s Union (Rodrigo), [2003] O.L.A.A. No. 527 (Carrier); and, Ontario Liquor Boards Employees’ Union v. Ontario (Liquor Control Board) (Massa), [2000] O.G.S.B.A. No 84 (Abramsky). [86] Union counsel referred me to the following decisions during her submissions: Ontario Public Service Employees Union (MacLeod) v. Liquor Control Board of Ontario, 2008 CanLII 70533 (ON GSB) (Watters); Ochem, division of Hudson Bay Mining and Smelting Co. Ltd. v. Communications, Energy, and Paperworkers Union of Canada, Local 591G (Harvey), [2010] O.L.A.A. No. 466 (Monteith); Re Winnipeg and Canadian Union of Public Employees, Local 500 (Parker) (2014), 250 L.A.C. (4th) 1 (Wood); Manitoba Housing Authority v. Manitoba Government and General Employees’ Union (Slipetz), [2011] M.G.A.D. No 6 (Michael Green); International Brotherhood of Electrical Workers (Harty) v. Abco Supply and Service Ltd., [2009] M.G.A.D. No. 27 (Graham); Re OSF Inc. and United Steelworkers of America, Local 5338 (Keefe) (2000), 89 L.A.C. (4th) 52 (Kirkwood); Re Dominion Glass Co. and United Glass & Ceramic Workers, Local 203 (1975), 11 L.A.C. (2d) 84 (Linden); Re Galco Food Products Ltd. and Amalgamated Meat Cutters & Butchers Workmen of North America, Local P-1105 (Mano) (1974), 7 L.A.C. (2d) 350 (Beatty); Re United Food and Commercial Workers Canada Union, Local No. 401 (Lummiss) and Canada Safeway Ltd. (2015), 257 L.A.C. (4th) 79 (Moreau); Re Ajax Pickering Transit Authority and Canadian Union of Public Employees, Local 129-01 (Garcia) (2003), 123 L.A.C. (4th) 51 (Craven); and, Re Kingston (City) and Canadian Union of Public Employees, Local 109, supra. [87] Many of these decisions deal with the issue of threats made in the workplace. Some of the decisions are from other jurisdictions and some are older Ontario decisions that predate the Bill 168 amendments to the OHSA. The key principles arising from the recent Ontario decisions can be summarized as follows. Statements threatening violence in the workplace, particularly when directed at management, are extremely serious and constitute cause for discipline. An employer has a statutory duty to take -50- reasonable steps for the protection of a worker, including a manager. Since it is the threat of violence itself that constitutes the serious misconduct, it is not particularly relevant when assessing the nature and seriousness of the threat to determine whether any particular harm is suffered, whether there was no immediate ability to cause physical harm or whether there was an intent to threaten violence or intent to cause harm. Death threats in the workplace are most egregious and would normally justify the termination of employment, subject to very compelling mitigating circumstances. It is worth reviewing some of the decisions that refer to these principles. [88] In Re Kingston (City) and Canadian Union of Public Employees, Local 109, supra, the grievor was found to have made a death threat to a co-worker, the Union President. After setting out the provisions of the OHSA, as amended by Bill 168, Arbitrator Newman comments on the impact of the Bill 168 amendments and on some decisions as follows: 223 The Bill 168 amendments to the Occupational Health and Safety Act have changed the law of the workplace in a significant way. They are largely based on the grim conclusions of coroners’ inquests into workplace deaths in Ontario, such as the death of nurse Lori Dupont at the Hotel Dieu Hospital in Windsor. The theory is that workplace violence is usually foreshadowed. It is, in many cases predictable. The amendments reflect the view that violence can be prevented if employers, supervisors and workers, seriously heed signs of danger, communicate clearly, and act with clarity when risk is identified. 224 Heightened vigilance in respect of violence requires that an employer be proactive in the identification of potential workplace violence. The employer must identify the risks that arise in its workplace by performing a risk assessment, and must inform the joint health and safety committee of the results of its assessment. It must develop a policy and program that addresses the risks of workplace violence. It must perform the necessary training and implement that program. 225 The Bill 168 amendments to the Occupational Health and Safety Act go further. They bring the issue of workplace violence within the sphere of occupational health and safety, and include the issue of workplace violence within the scope of mandatory employer obligations enumerated under the Act. Of particular relevance in this case, by section 32.0.5 (1), the pre-existing employer duties, supervisor duties and worker duties set out in sections 25, 27 and 28 respectively, are made applicable to workplace violence. 226 …I interpret the legislation to mean that an employer must protect a worker from a hazardous person in the workplace. The failure to comply with these requirements will attract penalties under the Act, and subject the employer to the enforcement mechanisms administered by the Ministry of Labour. … -51- 228 The Bill 168 amendments to the Occupational Health and Safety Act are intended for a very real and critical purpose. Based on the hindsight provided by inquests into the deaths of the victims of workplace violence in this province, the amendments are intended to require the workplace parties to heighten their awareness, to sharpen their antennae, and to refuse to ignore the warnings of violence that puts employees in peril. The amendments, if effectively implemented, have real potential to protect the emotional health of workers who are the victims of violence. They also have real potential to save human life. They are, most obviously, to be taken seriously. … 231 …the Bill 168 amendments have clarified the way in which the workplace parties, adjudicators, arbitrators and judges, must think about incidents involving the inappropriate use of language in the workplace… language that is made in direct reference to end a person’s life or that suggests impending danger, falls into a category of its own. This point will distinguish a case that arises after the introduction of Bill 168 from some of those upon which the Union relies, such as the Abco Supply case, in which the misconduct was considered to be merely an unfortunate choice of language. 232 The Bill 168 amendments tell us that “a statement or behaviour that is reasonable for a worker to interpret as a threat to exercise physical force, in a workplace, that could physical injury to a worker” is workplace violence. Such language is, by definition, workplace violence. 233 The amendments bring a high degree of clarity to the way in which we must think about such workplace language. Where an alleged threat is reported, the incident falls into a new category. The parties must address the allegation as one of violent misconduct. It must be addressed as a very serious allegation. 234 The workplace violence is the utterance of the words. There need not be evidence of an immediate ability to do physical harm. There need not be evidence of intent to do harm. No employee is required, as the receiver of the words, to live or work in fear of attack. No employee is required to look over their shoulder because they fear that which might follow. … 248 But the Amendments, in my view, should be interpreted to provide instruction on the weight to be given to one of these factors [one of the Dominion Glass factors] - the serious of the incident. There is no question that threats in the workplace have usually been considered very serious misconduct. The Siemens VDO Automotive award is, perhaps, a rare example of a contrary approach. As both parties acknowledge, the arbitral jurisprudence has reflected a reasonably consistent trend to take allegations of violence very seriously, as epitomized by the Simmons award in McCain Foods, and the Picher award in CN Railway. 249 But the threats are now categorized, by definition, as falling within the category of workplace violence. The shift in emphasis is likely to cause an arbitrator who is weighing the seriousness of the incident against other factors, to give that factor greater weight. 250 Incidents of threatening at work have been addressed with increasing seriousness. It is becoming rare for an arbitrator to be persuaded to consider such incidents less than serious, when it is suggested for example, that the offending employee was “just blowing off steam”, “not really serious”, “just trying to get a reaction”, or “didn’t really mean to threaten”. As Arbitrator Simmons suggested, such language is not tolerated in -52- environments where safety is a concern, such as airports. It ought not to be tolerated in the workplace. With greater and greater frequency, the trend has been to consider such misconduct at the grave end of the scale. The Bill 168 amendments, in my view, should, and will, reinforce that trend, and raise the bar on the factor of seriousness of the offence. … 252 …It is my view that a separate and distinct question must now focus that analysis [when assessing the reasonability and proportionality of the discipline]. That question is this: “to what extent is it likely that this employee, if returned to the workplace, can be relied upon to conduct himself or herself in a way that is safe for others?” Put another way, “to what extent is it predictable that the misconduct demonstrated here will be repeated?” 253 That element of inquiry is required, in light of the amendments, because the employment relationship will be incapable of reparation, if the offending employee is likely to render the employer incapable of fulfilling its obligation to provide a safe workplace under the Occupational Health and Safety Act. This is an additional consideration in the arbitral process of considering the relevant question in the equation. [89] In Re Canadian National Railway Co. and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 100 (Day), supra, an employee made an indirect threat against a supervisor. The following comments of Arbitrator Montieth are worth noting: 34. In this case, the seriousness of the offence is of paramount importance. The grievor made threats to kill or do physical harm towards Saleem and Company Officers with a gun out of some frustration or displeasure about how Saleem and other supervisors were managing the operations and him at the Belleville Yard. I start with a comment about progressive discipline. The absence of progressive discipline is not determinative in all cases and there are certainly many instances where arbitrators have not interfered with discharges involving serious misconduct, including violence or threats of violence in the workplace, by long service employees with good records… 35. The societal concern about violence or threats of violence in the workplace and the public’s expectation that employers will provide safe workplaces has been heightened in recent years by a number of well publicized violent incidents. This expectation has recently become public policy at the federal level with the enactment of Part XX of the Canada Occupational Health and Safety Regulations. The Regulations set out the legal duty of federal employers to develop policies and programs for the protection of their employees against workplace violence, threats of violence, harassment and intimidation and to control the risks of such conduct. It is very important, therefore, to take into account in the process of weighing all the relevant factors, the policy goals of the legislation and the heightened awareness and expectation in society today that employers will take the appropriate steps to protect all their employees from violence or threats of violence and other improper behaviour in the workplace and to promote a safe working environment. This is not to say that the legislation mandates a zero tolerance policy. The Company’s policy recognizes that incidents of violence in the workplace will be subject to discipline up to and including dismissal. The legislation does not restrict -53- the discretion of an arbitrator to substitute a lesser penalty, where warranted. As indicated above, arbitrators have always treated workplace violence as serious misconduct. However, given the heightened public concern and the duties placed on employers by legislation, it is becoming increasingly clear that the tolerance of arbitrators in regards to violence or threats of violence is low and mitigation of the penalty of discharge will not be warranted absent compelling evidence, such as medical evidence, that supports a conclusion that the employee has rehabilitative potential and will not be a danger to the safety of others, if returned to work. Arbitrator Monteith found that there was “no compelling evidence before him that explains or diminishes the seriousness of the grievor’s statements and continued as follows: 36. …I also reject the argument that the grievor posed no real threat because of his explanations in his interview and to the CN police to the effect that his statements were just a figure of speech or his normal way of talking: that he speaks out of turn without thinking and does not really mean what he says. These kind of after the fact self-serving or convenient explanations are not lawful excuses for uttering threats of violence in the workplace. CROA 3451, above, dealt with a similar situation where the grievor admitted making a statement threatening violence with a gun but put forth the explanation that it was “just a poor choice of words. Just a joke”. Arbitrator Picher rejected the grievor’s excuse and dismissed the grievance. I agree with the reasoning of arbitrator Picher at page 3 of the decision, below: When, as in the case at hand, an employer is faced with an employee who threatens to kill other employees, and utters those words on more than one occasion, causing obvious disturbance to persons in the workplace, it must take the threat seriously and deal with it without delay. No employer has the luxury to wait out events to see whether the threatening words are coupled with an actual serious intent. Nor are employees or supervisors who suffer such threats to be left to worry and await the test of whether the employee demonstrates that he or she had a serious intent. There is, very simply, no room for such threats in any workplace. It is no defense on the part of the individual who makes them to say, after the fact, that the threats uttered were not seriously intended, absent compelling medical or psychiatric evidence in mitigation. 37. …I can only conclude that the grievor does not appear to understand fully the seriousness of his statements and the impact they must have had on Saleem’s and other employee’s sense of well-being and safety in the workplace. Given the serious and egregious nature of the misconduct, the absence of any compelling evidence explaining the grievor’s conduct, the legal obligation of the Company to provide a safe workplace and the importance of deterrence to prevent any future incidents of this nature, I am not persuaded that the grievor’s long service and good record alone are sufficient to warrant any interference with the penalty of discharge. [90] And finally, the following observations of Arbitrator Larson in Re Shoppers Drug Mart Store No. 222 and Sidhu about the nature and impact of threats generally and against a supervisor in particular are also worth referencing: -54- 50 Threats are a particularly egregious form of misconduct because they carry the potential for substantial harm if carried out and there may be no way for the victim to know if the threat is a serious one. As despicable as it may be, bullying in the school grounds by children assumes proportionately greater potential for harm in the workplace amongst adults. Therefore, a mere threat, even one not intended to be carried out must be regarded as a disciplinable offence if it is reasonably sufficient to cause fear in the person to whom it is directed. The nature of the threat itself must be weighed in the balance, as are other elements such as whether the threat is repeated or persistent. A substantive threat of actual physical harm may constitute a tort of assault or may in some cases amount to criminal conduct. One must also bear in mind that employers have a statutory obligation to maintain a safe respectful work environment which includes protecting all employees from harm, even from each other. 51 A threat against a supervisor is normally regarded as particularly serious because in addition to the mental anguish it may cause, it carries elements of insolence and insubordination as was held in Re MacDonalds Consolidated Ltd. and Retail Wholesale Union, Local 580 (1990), 14 L.A.C. (4th) 379 (McKee); or it may constitute a challenge to the authority to manage and keep order in the workplace… 52 Even where the threat to a supervisor is not direct but only implicit, it will give rise to a duty in management to take appropriate action to protect the supervisor from harm… 53 It goes without saying that an actual death threat against a manager constitutes extremely serious misconduct warranting a commensurately serious disciplinary response, even if it a subsequently proven that the employee was a low risk for committing an act of physical violence. [91] There is no dispute that Ms. Ceresato engaged in serious misconduct in the workplace on April 29 and May 1, 2014. She immediately became upset on April 29 upon reading the transfer letter and in a loud voice she blamed Mr. Pitre for the transfer as she waved the letter in his face. On April 29 and May 1 she became very angry while in the warehouse. As she was blaming Mr. Pitre, she was loudly swearing and cursing while in a very angry state and she made threats of violence against Mr. Pitre. On April 29 she stated, “I want to slit his throat right now”. On both April 29 and May 1 she stated, “If I had a gun right now I would shoot him” and on May 1 she added to that statement by saying, “Maybe I should just use it on myself”. In using these words, Ms. Ceresato expressed an intention to exercise physical force against Mr. Pitre by slitting his throat or by shooting him so as to cause him physical injury. There is no doubt that the threats made by Ms. Ceresato against Mr. Pitre on April 29 and May 1 amount to workplace violence as defined in the OHSA. The Union did not suggest otherwise. The cases I referred to earlier suggest that threats of violence in the workplace are one of -55- the most serious kinds of employment offences that an employee can commit, particularly if the threats are against a member of management. The decisions also suggest that the termination of employment is justified for death threats in the absence of very compelling mitigating circumstances. [92] As noted previously, the Union conceded at the outset of this proceeding that the Employer had just cause to discipline Ms. Ceresato. Both counsel made submissions on the seriousness of Ms. Ceresato’s conduct and whether there were factors in this case that would warrant the substitution of a lesser penalty. Union counsel argued that there was a basis in this case to fashion a remedy that did not include the termination of Ms. Ceresato’s employment and that there were a number mitigating factors which should cause me to order the Employer to reinstate her to her former employment as a CSR. I agree with the Union’s submission that a finding that an employee engaged in workplace violence does not mean that the termination of employment is automatic. However, after considering the submissions and balancing the relevant factors in this case, it is my conclusion that the Employer has established that it had just cause to terminate Ms. Ceresato’s employment and that the substitution of a lesser penalty is not justified in the circumstances. [93] On the one hand the Union concedes that Ms. Ceresato engaged in serious misconduct and indicated that it did not intend to minimize that conduct. On the other hand, Union counsel argued that the seriousness of Ms. Ceresato’s comments must be considered in light of certain factors. These factors are as follows: Ms. Ceresato made the objectionable comments to co-workers and not directly to Mr. Pitre; she did not intend to cause harm to Mr. Pitre or to cause anyone to be fearful; and, she did not act upon the threats and no physical violence resulted. I agree with Employer counsel’s submission that the recent Ontario arbitration decisions and some of the earlier decisions find that these factors are not particularly relevant when assessing the seriousness of this kind of offence. The essential nature of an offence involving threats of violence is determined by the nature of the threatening words that are used and an assessment of their likely impact on employees in the workplace. Ms. Ceresato’s subsequent claim that she did not intend to make the death threats, that she did not -56- directly make them to Mr. Ceresato and that she did not follow through on her threats of violence does not alter the essence of her misconduct which is her threatening words of violence against Mr. Pitre. The factors the Union referred to do not lessen the seriousness of Ms. Ceresato’s threatening words so as to affect my view of the appropriateness of the penalty of discharge. [94] In addition to the seriousness of Ms. Ceresato’s conduct, a significant factor weighing against the mitigation of the penalty is her failure to admit to the precise threats that she made on April 29 and May 1, 2014. Rather than admitting that she said, “I want to slit his throat right now”, she instead testified that she said, “I want to punch him in the throat” and ended these words with a laugh. Rather than admitting that she simply said, “If I had a gun right now I would shoot him”, she testified that she said, “If I had a gun, I would take him out back and shoot him like in the old west”. She suggested that her statements were an attempt to be humorous and that the threats were not made seriously. As I noted previously, I did not find her testimony about the specific wording of her threats to be credible. It is difficult to accept on the evidence that the threatening words she used were attempts at humour given her angry state at the time. Reinstatement becomes less of a possibility when an employee does not honestly acknowledge their serious wrongdoing. Her failure to admit to the specific threats that she made against Mr. Pitre places in question whether she appreciates the serious nature of her misconduct and whether she can be trusted to refrain from engaging in similar misconduct in the future. [95] Before commenting on the applicability of the factors in the Dominion Glass decision, Union counsel submitted that there were four matters in particular that weighed in favour of mitigating the penalty of discharge. These matters are the harassing and bullying conduct of Mr. Pitre, the absence of progressive discipline and Ms. Ceresato’s mental health and her state of mind at the end of April and early May of 2014. [96] As I found earlier, the objective evidence did not establish that Mr. Pitre engaged in harassing and bullying conduct against Ms. Ceresato. Therefore, those allegations -57- against Mr. Pitre cannot be relied on by the Union to support the mitigation of the penalty. I agree with Employer counsel’s submission that the Employer and Mr. Pitre in particular did nothing to provoke Ms. Ceresato into making death threats against Mr. Pitre. I appreciate that Ms. Ceresato was upset about being transferred to Store #34 because she believed her goal of becoming a PC was in jeopardy. However, transfers are common with this Employer and she had been warned by Mr. Jeremschuk on April 25, 2014 that she could expect a transfer if she left the store before the end of her shift. It should not have been much of a surprise that Mr. Parker would transfer her to her former store where she got along fairly well with the manager. Although her angry state and the threats she made against Mr. Pitre were triggered by her transfer to Store #34, the notice of transfer to Store #34 cannot in any way justify Ms. Ceresato’s conduct on April 29 and May 1. [97] Union counsel argued that the failure to discipline Ms. Ceresato in the past for her displays of emotion and anger in the workplace sent the message that such conduct is tolerable and failed to advise her of the Employer’s expectations about such conduct. This submission might have some merit if Ms. Ceresato was discharged only for losing her temper in the workplace, although I note that the Employer had advised her that such conduct was not acceptable when it counseled her more than once in 2012. Ms. Ceresato was discharged because her conduct had escalated from losing her temper in the workplace to making threats of violence. Counsel also argued that Ms. Ceresato’s acts of misconduct were not so serious as to negate the Employer’s obligation to use a corrective disciplinary approach. I disagree with this last submission. Arbitrators have indicated that there can be conduct so serious that the usual principles of progressive discipline will not apply. The recent cases in Ontario have upheld discipline for workplace violence in circumstances where grievors had no discipline on their record. By making death threats against Mr. Pitre, Ms. Ceresato engaged in egregious conduct of the sort that did not compel a progressive disciplinary approach. A reasonable employee trained on Bill 168 would appreciate without a previous warning that making death threats against her manager is misconduct so serious that the termination of her employment would be the likely result. -58- [98] Union counsel also argued that the issue of mitigation must be considered in the context of Ms. Ceresato’s mental health and her state of mind at the relevant time. Counsel argued that the fact the Employer disregarded her mental health when it assessed her conduct on April 29 and May1 is a strong mitigating factor that warrants a lesser penalty. The Union took this position while at the same time indicating that it was not arguing that Ms. Ceresato’s mental health issues were the cause of her misconduct. I agree with the submission of Employer counsel that the only question of relevance is whether Ms. Ceresato’s mental health played a role in causing her misconduct and the fact that the Union is not arguing that it played such a role means that the Employer’s failure to consider her mental health when it decided to terminate her employment can have no relevance. I can appreciate why the Union did not claim that Ms. Ceresato’s mental health played a role in causing her misconduct. As some of the decisions I referred to earlier suggest, such a claim in the face of serious workplace violence would require very compelling medical evidence. No such evidence has been presented in this proceeding. Although her family doctor noted in his letter to Union counsel that Ms. Ceresato was stressed and depressed about her life situation, Dr. Echlin does not even attempt to make a link between her mental health and her misconduct. Indeed, he makes no reference to her misconduct at all. A similar response can be made to the submission about Ms. Ceresato’s state of mind at the time. Union counsel submitted that Ms. Ceresato’s tiredness, the financial pressure she was under, her decision not to take her medication and her mother’s health contributed to her fragile state of mind. While there is no dispute that Ms. Ceresato had a number of personal issues, there is no compelling evidence that makes a link between her state of mind and her threats of violence. The evidence that is before me suggests that the most likely explanation for Ms. Ceresato’s misconduct is that she simply lost her temper on two different days when it became apparent that she was going to be transferred to Store #34. As was often the case, she blamed Mr. Pitre for her predicament and while in an angry state she made threats of violence against him even though he had nothing to do with her transfer to Store #34. [99] In referring to some of the factors noted in Dominion Glass, Union counsel noted Ms. Ceresato’s discipline free record, her ten years of seniority, her poor economic -59- prospects, her attendance at Homewood for anger management counseling and what she characterized as Ms. Ceresato’s apology letter and her remorsefulness for her misconduct. It is to Ms. Ceresato’s credit that she immediately sought counseling for her anger management issues. The letter from Homewood simply discloses that Ms. Ceresato attended a number of sessions that focused on the issue of workplace conflict, without providing opinion on her progress in curbing her anger. I appreciate that Ms. Ceresato testified that she found the counseling sessions helpful. However, it is difficult to conclude on the basis of her evidence alone that she can now manage her longstanding anger issues successfully. As I noted previously, Ms. Ceresato did not apologize or express any remorse to the Employer for her misconduct prior to the commencement of this proceeding. The significance of the regret she has expressed for her misconduct is lessened by the fact she did not acknowledge the real threats of violence that she had made against Mr. Pitre and her failure to appreciate the impact of such conduct in the workplace. I agree that her 10 years of seniority, her discipline free record and her dim economic prospects are factors that weigh in favour of mitigating the penalty of discharge. However, the factors in this case that favour the mitigation of the discharge are far outweighed by the seriousness of her workplace violence and her failure to take full responsibility for the threats of violence that she made against her manager. [100] There were two significant considerations that motivated the Employer to terminate Ms. Ceresato’s employment. One consideration was its legal obligation to provide a safe workplace for its employees and to protect them from workplace violence. The other consideration was that it could no longer trust Ms. Ceresato. I can appreciate from the evidence in this proceeding why it was motivated by these legitimate considerations. I have no doubt that Ms. Ceresato’s threats of violence against her manager has resulted in irreparable damage to the employment relationship. [101] It is for the above reasons that I found that the Employer had just cause to terminate Ms. Ceresato’s employment and that the substitution of a lesser penalty or -60- any other remedial response was not warranted in the circumstances. Accordingly, Ms. Ceresato’s discharge grievance dated June 12, 2014, is hereby dismissed. Dated at Toronto, Ontario this 10th day of July, 2018. “Ken Petryshen” ______________________ Ken Petryshen, Arbitrator