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HomeMy WebLinkAbout2015-0618.Grievor.20-09-22 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# 2015-0618; 2016-0497 UNION# 2015-0234-0074; 2016-0234-0112 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Daniel A. Harris Arbitrator FOR THE UNION Ian McKellar Dewart Gleason LLP Counsel FOR THE EMPLOYER Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel HEARING Sept. 27, 2016; March 30, 2016 (by teleconference); July 18, Sept. 26, 27, Oct. 18, 2017; Oct. 10, Nov. 16, 27, 28, Dec. 19, 2018 and Jan. 4, 2019 -2- DECISION [1] These proceedings encompass two grievances. In the first grievance the Union (OPSEU) alleges that the Grievor was subjected to harassment and subsequent bullying by a co-trainer and his supporters as a result of an incident, which had racial and sexual aspects, that occurred at a staff training session, held in 2014, and that grievance also raised an issue of unjust discipline contrary to article 21.1. That latter aspect of that grievance was settled before the hearing. This first grievance is dated April 21, 2015. The second grievance alleges that the Employer failed to follow agreed-upon protocols. As part of this second grievance the Grievor alleges that she had been told that she would not be scheduled to work with the co-trainer. The Union grieves that this agreement was not honoured and that as a result the Employer failed to take adequate steps to provide the Grievor with a workplace free of discrimination and harassment. Further, the Operational Manager who was said to have inappropriately assigned her, OM Cayton, was also said to have berated the Grievor thereby violating her right to be treated with dignity and respect and causing her humiliation. This second grievance is dated May 10, 2016. The Positions of the Parties [2] The Union’s position on the first grievance was that the Grievor and a fellow employee co-taught a defensive tactics training course. The Grievor objected to certain actions of the co-trainer (hereafter “CT”) and ultimately reported her concerns to management, setting off a barrage of negative Occurrence Reports (hereafter ORs) directed at her from a faction of employees who were generally -3- supportive of the CT. The Union also took the position at the outset of the hearing that specific incidents were directed at the Grievor by that faction. The Union’s central allegation is that the Employer took no, or inadequate, steps to quell this uprising against the Grievor, by her co-workers, thereby failing to provide her with a safe workplace free from discrimination, harassment and bullying. The Union also took the position that the Employer’s investigation of the incident, which found that the Grievor was complicit in the incident, demonstrated that management was dysfunctional and lacked adequate oversight. These actions were said to be contrary to the collective agreement, the Ontario Occupational Health and Safety Act and the Ontario Human Rights Code. [3] With respect to the second grievance, the Union took the position that the behaviour of OM Cayton in assigning the Grievor to a unit contrary to her agreement with senior members of management, as part of dealing with the fallout from the circumstances leading to the first grievance, and berating her in front of her co-workers, contributed to making the workplace unsafe for the Grievor. [4] The Employer took the position at the outset that the incident at the Defensive Tactics Training course led to an escalation of differences in the workplace between the Grievor and the faction of employees loyal to the CT. The Employer’s position was that it behaved reasonably and properly in dealing with these differences, particularly bearing in mind that the grievor was also found to have engaged in misconduct. Its position was that management took steps to -4- separate the grievor from CT, encouraged reconciliation of them and took all reasonable and appropriate action in the circumstances. [5] At the outset of the hearing the parties joined issue as well regarding the Employer’s liability for any alleged pain and suffering of the Grievor. The Union said that the Employer’s actions caused it, while the Employer’s position was that if the Grievor did experience pain and suffering, it was at the hands of her co- workers, for which it was not responsible. The Facts and The Submissions of the Parties [6] The hearing of the two grievances proceeded by way of the submission of written “will-say” statements, representing the evidence-in-chief of the parties’ witnesses. It was open to the parties to supplement the written will-says of the witnesses with brief viva-voce evidence. The parties were permitted the right to cross- examine the witnesses opposite, and evidence was permitted in re-direct examination. [7] The Union called the Grievor to supplement her will-say. Given the procedural approach adopted at the hearing, it is neither practical nor helpful to attempt to summarize these lengthy documents. I have carefully considered them as well as the distillation of them in the submissions made by the parties, the viva voce evidence and the authorities relied upon. -5- [8] In its review of the evidence the Union submitted that the Grievor has been a Corrections Officer since 2009. She is an African-Canadian woman who co- taught a refresher course in Defensive Tactics, (hereafter DT Course), on June 3, 2014 which dealt with responding to events of physical engagement. [9] At the course, her male Co-Trainer (hereafter CT) brought a sexually and racially explicit adult toy to the training session, which he had received as a gag birthday present. He showed it to a co-worker, who was a friend of his, who was also in attendance at the DT Course. The Grievor took offense to this action and, after consulting Jamie Lee, the Provincial Coordinator of the Defensive Tactics Programmes, she was advised to report this incident up the chain of command. She had initially contacted Mr. Lee to inquire if she could transfer to teaching at the Ontario Correctional Services College in order to avoid working alongside CT. The Grievor did report the incident, which resulted in a Workplace Discrimination and Harassment Complaint (hereafter WDHC) being initiated by the institution. She explained in her evidence here that the episode involving the sex toy was not the first racist or sexist event involving this CT. Her complaint to her Superintendent included other statements that had been made during the training course. In fact, the evidence discloses that the environment in which the training took place involved multiple incidents where comments involving sexual innuendo were exchanged between the trainers and the participants. The Union contends that these were examples of a negative culture in the institution and that the Employer failed to combat or address this culture. -6- [10] The CT was the lead instructor in these training sessions and the Grievor was amongst the most junior employees in the class. The CT had a large group of allies in the class and in the institution as a whole. Regrettably there was a culture of silence in the institution in the face of inappropriate behaviour. Accordingly, the Grievor was initially reluctant to report these incidents. [11] The Union also submitted that these incidents caused the Grievor to be reluctant to teach with this CT. As set out above, she reached out to the Provincial Co- ordinator of Defensive Tactics seeking a transfer. He informed her that it was her responsibility to report the incident to her institutional chain of command. As set out above, she did report the incident to the Superintendent of her institution, setting in motion the WDHP investigation of the events at the DT Course. She testified that she did not reveal to any of her coworkers the existence of the WDHP investigation. Nonetheless, the WDHP complaint was not kept confidential. She said in her will-say that soon all her colleagues knew about it; it became known as “AB’s WDHP Complaint”. [12] Once it became known that the Grievor had met with the Investigator as part of the reporting process, the flurry of ORs began to be filed by allies of the CT. These ORs alleged that the Grievor had engaged in bullying, harassment and other inappropriate behaviours. For example, a close ally of the CT, (hereafter “the ally”), who was present at the Defensive Tactics training course, filed an OR that said that the Grievor had told her that the Grievor had engaged in salacious -7- conduct with her husband in order to obtain a new car; the Grievor denies saying this. [13] The numerous OR filings took on a life of their own reporting inappropriate comments and conduct of the Grievor at the DT Course and at other times. The Union says that such meritless ORs continued to be filed until the end of the WDHP investigation. The investigation began in or about June 2014 and lasted until in or about December 2014. [14] The ally filed a Bill 168 complaint against the Grievor, alleging that she had been threatened by the Grievor. These allegations were found by an Employer enquiry to be unsubstantiated; the Grievor was not found to have threatened the ally. Prior to this finding, the Employer decided to separate the Grievor and the ally. [15] ORs continued to be filed, many of which were found by the Employer to be without merit, and disposed of by the Employer without follow-up, so the Grievor did not always know that these ORs had even been filed, only to be disregarded. [16] By January 2015 the WDHP investigation of the incidents at the June 3, 2014 DT Course had wrapped up. This investigation found that the Grievor was complicit and had contributed to the poisoned work environment at the DT Course. She was disciplined for her behaviour. -8- [17] The Union submitted that throughout 2015 the mistreatment by the CT’s allies continued, with additional filing of ORs and with no response from the Employer. It submitted that it was not until 2016 that the Employer began to take some steps to ameliorate the situation and a successful mediation took place in March 2016 between the Grievor and the CT. [18] The Union said that in April 2016 the events leading to the second grievance took place. At that time the Grievor and the CT were meant to be working in separate areas. There were complaints that the Grievor had entered the CT’s work area. On April 26, 2016, the Grievor was actually assigned to the CT’s work area. When she brought this matter up with the supervisor who had made this assignment, Operational Manager Cayton, the Grievor says that he berated her. And, when she returned to Cayton a second time in order to try to gain clarification regarding the details of the assignment, she says that she was berated further. This episode resulted in the second grievance herein. The Grievor spoke to Deputy Superintendent Cicak about the incident and D.S. Cicak told the Grievor she would speak to OM Cayton, which she did. [19] The Union submitted that although this incident involved just one episode, it was in reality a continuation of the pattern, which had continued through 2015. The Employer was either not taking effective action or was confused about what was the appropriate course of action to take. The Employer had agreed to keep the two employees apart yet the schedulers were not clear about this and OM Cayton subsequently took it out on the Grievor. The Union submitted further that -9- the Grievor had been subjected to this disregard over a two-year time frame, and that this was taking its toll on her work and personal life. She felt unsafe. The Union submitted that her children noticed the impact on her as she became more withdrawn. She was prescribed medication. The medication prescribed was not disclosed in the evidence. The Union submitted that she was consistent in her cross-examination with the will-say statements she filed in these proceedings. It said that the totality of her evidence was credible. [20] The Union submitted that the Grievor had been willing to go to mediation with the CT and that the CT stated that he had not been opposed to participating in a mediation process in the past and would have been willing to have participated in such a process earlier if he had been asked to do so. The Union said that the Employer had been responsible for the delay in bringing the parties together and seeking resolution through mediation. [21] The Union said that the evidence given by Jennifer Alphonso, the Acting Superintendent at the time, should be given little weight because it was primarily hearsay and relied on the notes of Superintendent Anna Gulbinski who did not testify at these proceedings. Further, the Union said that Ms. Alphonso put undue weight on the popularity of the CT’s ally group. The Union submitted that this anti-grievor group was well equipped to utilize the bureaucratic bullying in which it engaged, by way of filing meritless ORs. Ms. Alphonso did not investigate the large number of ORs systemically but simply dismissed, as frivolous, each individual OR as they arose. She did not determine that the -10- whole scope of the situation was something that needed to be addressed. She did not explore nor investigate the pattern of behaviours that the totality of the OR filings represented. She just ignored them. And while ignoring this situation she left the Grievor in the dark as to what was going on and thereby left the Grievor at the mercy of the CT’s allies. [22] The Union submitted that the Employer did not follow up to communicate to the Operational Manager, or to employees responsible for scheduling, the administrative decision agreed upon with the Grievor to separate her from the CT and his ally. It was this failure that led to the situation between the Grievor and OM Cayton, which generated the second grievance herein. [23] The Union submitted that Deputy Superintendent Alphonso turned a blind eye to the racialized aspect of the sex toy situation at the DT Course and its prominence in the subsequent events. The sex toy was a black dildo, and per the CT, was named “Leon”. D.S. Alphonso was said to have resisted connecting the dots of all of the subsequent ORs, instead treating each one as a discrete event, thereby failing to recognize the systemic, racialized aspect of the bifurcation of the workforce as a result of the incident at the DT Course. [24] The Union submitted that D.S. Alphonso only recognized a pattern in the winter of 2016, one and a half years after the DT Course. The Union submitted that it was no answer for her to say she had not attended to this issue because she was busy. The Union said that the Employer was obliged to deal with such -11- systemic problems and could not obviate those systemic problems because her workload was seen as too heavy. [25] As to the second grievance, the Union says that D.S. Alphonso had no specific recollections beyond reconstruction from the documents. It was submitted that D.S. Cicak’s evidence of being new to the job was also weak. The Union also noted that there was no “will say” statement from OM Cayton and no justification for the Employer’s position that the absence of such evidence should not be held against the Employer. [26] The Union submitted that the test as to the amount of supervision required by the Employer is objective, and on an objective analysis this Employer had failed the Grievor. [27] The Union also submitted that it is appropriate to look at a variety of factors, including the cultural components alive in the institution when assessing the reasonableness of the Employer’s response. It said that it is all well and good to look to the Employer’s policies but it is the implementation of those policies that is at issue here. Primarily, it is the Employer’s duty to investigate when issues of harassment and workplace safety are brought to its attention, and it is crucial that this be done. [28] The Union also submitted that it is not the Union’s responsibility to point the way to addressing and solving the systemic challenges existing in the working -12- environment. That is the responsibility of the Employer and, at this point, it is possible to be “forensic” when considering and evaluating the Employer’s choices as it oversaw and managed the workplace. [29] The Union submitted that there should have been earlier attempts to provide mediation and that the Employer should have invested more thought and care in a comprehensive investigation with respect to the employees who were targeting the Grievor. These interventions could have extended to the point of reassigning those employees who were abusing the OR process by filing meritless reports. [30] The Union submitted that the Employer did respond to the situation at the time by suggesting that the Grievor should have sought a transfer. It submitted further that such victim blaming is wrong and that it was the Employer’s duty to identify appropriate solutions and implement them. [31] The Union said that the Employer had adequate evidence in its possession for it to conclude that the Grievor was facing a serious problem and therefore the Employer was obliged to connect the dots to identify the severity and to investigate and address the problem. It claims that the Employer’s failure to do so was a significant breach of the collective agreement. [32] The Union submitted that there was no serious investigation into these matters. The Employer was duty-bound to take action, authentically explore the root of the complaint and follow up, notwithstanding what the outcome of that investigation -13- might be. The Union said that had the Employer done so, that investigation would have taken it towards a clearer understanding of the problem and thus to a better path forward in order to address this significant problem with its roots in the culture of the workplace. [33] The Union seeks the following remedies: a. A declaration of breaches of article 3 and article 9 of the Collective Agreement; b. An order that the Employer respect its statutory obligations to protect and safeguard the workplace; c. A declaration that the grievor suffered pain and suffering from racially motivated harassment [34] The Union relied on the following authorities: Ontario (Ministry of Labour) v Hamilton (City), 2002 CanLII 16893 (ON CA); Ontario (Ministry of Labour) v Cementation Canada Inc. et al., 2008 ONCJ 135; Brown and Beatty Canadian Labour Arbitration, 3:4310 Hearsay; Brown & Beatty Canadian Labour Arbitration, 3:5110 Assessing Credibility; Charlton v Ontario (Ministry of Community Safety & Correctional Services), 2007 CarswellOnt 4099; Occupational Health and Safety Act, R.S.O. 1990, c.O.1; Ontario (Ministry of Transportation) and OPSEU (Louis), 2014, CarswellOnt 7676; OPSEU v Ontario (Ministry of Community Safety & Correctional Services), 2010 CarswellOnt 4779; R. v. 1333521 Ontario Ltd., [2006] O.J. No. 5790; Blouin Drywall Contractors -14- Ltd. And United Brotherhood of Carpenters and Joiners of America, Local 2486, (1975), 8. O.R. (2d) 103 (Ont. C of A); Toronto District School Board and CUPE, Local 4400 (unreported, May 9, 2011, Chauvin); Ontario Human Rights Code, R.S.O. 1990, c. H.19, s.1; District of Parry Sound Social Services Administration Board and OOPSEU, Local 324, [2003] 2 S.C.R. 157 (S.C.C.). [35] As set out above, the Employer submits that it acted reasonably in responding to the tensions that escalated in the workplace following the DT Course. [36] With respect to the first grievance, it submitted that the Union has not met its onus under the Collective Agreement to establish that there was a poisoned work environment due to race or any other violation of the Ontario Human Rights Code, (hereafter OHRC). Without such a violation there can be no claim for damages, and any remedy must be found at the Workplace Safety and Insurance board, (hereafter WSIB). [37] In the alternative, the Employer submitted that any violation of article 3 could only attract, by way of remedy, a declaration and nominal damages. [38] With respect to the second grievance, the Employer submitted that it should be dismissed because there was no connection between OM Cayton’s actions and the events leading to the first grievance. It said that it was merely a minor dispute between two employees, which was addressed immediately, without any further problems arising. -15- [39] Returning to the evidence relating to the first grievance, the Employer submitted that the Grievor’s evidence and the Union’s reliance on the alleged comments by the CT to the Grievor in the period leading up to the DT course should be given no weight because they were never reported to management, nor to Mr. Lee, the Provincial Co-ordinator of the Defensive Tactics programs, nor to the WDHP investigator. The Employer submitted that it was not until this litigation that these allegations of prior untoward behaviours by the CT were made. [40] The Employer also submitted that the evidence is that management did not turn a blind eye to the situation but acted quickly and diligently when informed of the DT Course situation. As an example, it said that on Friday, June 27, 2014 at 4:56 pm the Grievor followed Mr. Lee’s direction to report it to Supt. Gulbinski. Ms. Gulbinski replied at 9:14 pm that she was on vacation so would have Ms. Alphonso follow up. Ms. Alphonso was copied on that email, as was Mr. Lee and a Mavis Montgomery. At 12:37 pm on Monday June 30, 2014, Ms. Alphonso sent the email chain to a Bo Jiang to “assess for any WDHP violations and advising that the institution was “also conducting an investigation into the matter.” Mr. Lee had already responded, at 9:39 am on June 30, 2014, outlining the contents of his telephone conversation with the Grievor at 8:30 am on Friday, June 27, 2014. The Employer noted that this was a comprehensive response within one business day. -16- [41] The Employer also submitted that the Grievor agreed in her cross-examination that management could not investigate issues that were not reported to it, such as the Grievor’s allegations against the CT that pre-dated the DT Course. [42] The Employer also submitted that the allegation that the ORs submitted in support of the CT amounted to bureaucratic bullying, which had a detrimental effect on her, causing her stress, could not be so. It said that the Grievor was unaware at the time of the ORs being filed against her and only became aware of them in the course of this litigation. [43] The Employer also submitted that the Union’s assertion that the Grievor had met often with management regarding the issues raised in this litigation is also without merit. It said that the only evidence of meetings were of those conducted as part of the WDHP investigation, at which management would not have attended, given the independent mandate of the WDHP process. The Employer said that it would be unfair to conclude that the Grievor was constantly telling management of being harassed when there was a hiatus in the filing of ORs from May 26, 2015 (that by the CT) to October 14, 2015 (that by the CT). It said that the height of OR filings was in the fall of 2014 and early in 2015. [44] The Employer also submitted that the Grievor’s evidence was to the effect that separating her from the CT and the CT’s ally exacerbated the situation. The Employer submitted that the standard in assessing the Employer’s responses is -17- one of reasonableness and, manifestly, it was a reasonable response to separate them in order to minimize the conflict. [45] The Employer submitted that it was the Grievor’s evidence that she was reluctant to put pen to paper to file any complaints because of the circumstances of the DT Course incident. Generally, she only filed an OR if asked to or if it impacted the job at hand, an example of which was that dated February 4, 2015. The Employer pointed out that in the text of that OR the Grievor reported, at page 2, that the ally “also informed me that I was also a “fucking liar”… not sure what she was referring to as I decided not to give this situation any more credence, so I joyfully left the area laughing to myself about the absurdity of the moment and went on to continue my duties”, and at page three, “Needless to say we [the Grievor and another CO] both continued with our duties and completed the day without incident.” (emphasis added) [46] The Employer said that this was the first time that the Grievor pro-actively submitted an OR, some 9 months after the DT Course. Further, the tone of the OR, referred to above, did not support the allegation that there was a poisoned work environment due to race. [47] The Employer submitted further that nothing in any of the ORs suggests that the Grievor’s health and safety were threatened. Rather, they deal with allegations that the grievor was a threat to the health and safety of the authors of the ORs. Further, management concluded in many cases that there was no merit to those allegations and took no action on them, and conceded that they did not advise the Grievor that they had been filed. -18- [48] The Employer also submitted that the Grievor walked back her allegation that the ally was sharing confidences with management. In her cross-examination, the Grievor confirmed that she was not saying that they were in cahoots with each other. The Employer said that there was no evidence that Ms. Alphonso was a friend with the CT or the ally. [49] The Employer also submitted that the Grievor’s medical evidence of having suffered from stress due to her treatment in the workplace was scant, amounting as it did to only three doctor’s ‘script’ notes dated January 16, January 31 and February 14, 2017 provided after she went off work “on stress leave in January, 2017”. The Employer said that the notes do not disclose the cause of “anxiety and depression”, and, although the notes indicate that she would be referred to a psychiatrist, there is no further medical documentation. [50] As to the circumstances raised in the second grievance, the Employer said that the fact is that thereafter she did not have to work with the CT again. It submitted that Deputy Superintendent, Operations, Angela Cicak, was new to that position on the day of the incident between OM Cayton and the Grievor that resulted in the second grievance. It said that by all appearances OM Cayton did not know that the Grievor’s scheduling restrictions involved avoiding contact with the CT. The Employer submitted that it was one unfortunate incident that D.S. Cicak dealt with by talking to OM Cayton. -19- [51] The Employer made general submissions with respect to Deputy Superintendent Alphonso’s evidence. It agreed that Superintendent Gulbinski did not testify, so that the Board should weigh those events that D.S. Alphonso had knowledge of directly. It said that D.S. Alphonso and Supt. Gulbinski kept each other apprised of situations in the institution because D.S. Alphonso would often act for Supt. Gulbinski in her absence. [52] In her evidence, D.S. Alphonso first said that the investigation into the DT Course incident impeded turning to mediation efforts. She subsequently agreed, in cross-examination, that mediation could have occurred earlier. [53] The Employer submitted that being busy is no answer, but it should be noted that there was a hiatus in the filing of ORs while the investigation was ongoing. It submitted that there was no evidence as to what the CT wanted with respect to mediation. Further, it said that it is not a violation of the Collective Agreement, nor a violation of the Code not to conduct a mediation. [54] D.S. Alphonso said that she did not see the name “Leon” as having a racial connotation. Also, the investigator did not find a racial connection in these circumstances. The Employer said that the grievances are predicated on racial discrimination, which simply is not present. It said that if it is found that there was harassment, it did not stem from race, but from interpersonal conflict amongst co- workers arising from the events of the DT Course. -20- [55] The Employer submitted that it was not obliged to obtain the Grievor’s response to ORs that were negative to her, when they were not acted upon. Further, the ORs were said to fall into distinct temporal periods and did not amount to a continuous course of conduct. [56] The Employer relied on the following authorities: OPSEU (Brydges) v Ministry of Transportation, [2014] O.G.S.B. No. 147 (Dissanayake); OPSEU (Ceresato) v. Ontario (Liquor Control Board), [2018] O.G.S.B.A. No. 97 (Petryshen); Cara Operations (c.o.b. Toronto Flight Kitchen) v. Teamsters Chemical, Energy and Allied Workers Union, Local 647 (Palmieri Grievance), (2005) 141 L.A.C. (4th) 266 (Luborsky); Fanshawe College of Applied Arts and Technology v Ontario Public Service Employees Union, 2016 CANLII 23226 (ON LA) (Bendel); OPSEU (Asztemborski et al) v. Treasury Board Secretariat, 2017 CanLII 92686 (ON GSB) (Briggs); Marc-Ali v. Graham, 2013 HRTO 266 (Reaume); OPSEU (Gareh) v. Ministry of the Attorney General, [2002] O.G.S.B.A No. 54 (Brown); T.R.W. Linkage & Suspension Division v. Thompson Products Employees Assn. (Coons Grievance), (2005) 144 L.A.C. (4th) 215 (Hinnegan); Lee et al v. Ministry of Community Safety and Correctional Services, [2013] O.P.S.G.B.A. No. 1 (O’Neil); OPSEU (Groves) v. Ministry of Community Safety and Correctional Services, [2014] O.G.S.B.A. No. 126 (Mikus); Workplace Safety and Insurance Act, 1997, S.O. 1997, C. 16, Schedule A, section 13; OPSEU (Monk et al) v. Ministry of Community Safety and Correctional Services, [2010] O.G.S.B.A. No. 98 (Gray); OPSEU (Rosati) v. Ministry of Community Safety and Correctional Services, [2018] O.G.S.B.A. No. 7 (Anderson); OPSEU (Wilson) v. Ministry of -21- Natural Resources and Forestry, [2017] O.G.S.B.A. No. 121 (Dissanayake); OPSEU (Foley) v. Ministry of Community Safety and Correctional Services, [2017] O.G.S.B.A. No.144 (Williamson). Analysis and Decision [57] I find that the precipitating incidents in the first grievance arose at the DT Course on June 3, 2014. The Grievor reported the incident to her Superintendent on June 27, 2014 by way of an email. The email made three allegations against the CT: that he had produced a black dildo by the name of “Leon” to the group, that he changed into shorts and a t-shirt because his “balls were sticking to his leg”, and that a participant was injured as part of a demonstration of a defensive technique. [58] The germane allegation was that the CT had produced a racialized sex toy to the group. The email sets out that the Grievor found the CT’s behaviour to be “extremely racist and sexist in nature.” [59] I find that the CT made an unreserved apology for his behaviour at the DT Course in an OR to Superintendent Gulbinski dated June 30, 2014. The relevant portion of the OR reads as follows: … In hindsight I realize that showing or talking about the gift was a mistake because of the environment I was in as well as my position as Instructor. The Intent was not to offend anyone and I feel horrible and sincerely regret that this may have upset someone …. The date stamp on the OR is not legible. -22- [60] That OR is dated June 30, 2014, being the same day as D.S. Alphonso’s email to Bo Jiang asking that the Grievor’s report be assessed “for any WDHP violations”. It also followed an email from Mr. Lee that day, at 9:48, copied to Supt. Gulbinski and D.S. Alphonso, documenting the earlier telephone conversation between Mr. Lee and the Grievor and an earlier telephone conversation with the CT that detailed the allegations against CT, and Mr. Lee, at that time, put CT on “Inactive Instructor Status.” [61] In spite of CT’s acceptance of responsibility and expression of remorse, along with his expressed willingness on July 31, 2014 to go to mediation, the WDHP process, which had been initiated by the Institution’s management, was allowed to wind its way forward. The WDHP investigation was reassigned to Janet Gearing, advice of which was sent to Superintendent Gulbinski by email dated July 21, 2014. That email asked Superintendent Gulbinski to “provide the necessary supportive assistance to Ms. Gearing to the fact finding process.” [62] By letter dated July 28, 2014, D.S. Alphonso wrote to the Grievor “to advise that a Workplace Discrimination and Harassment Prevention (WDHP) Policy internal investigation has been initiated in response to your allegation(s) … that (CT) has subjected you to discrimination based on colour and sex, resulting in a poisoned work environment.” It was the first two allegations in her email that formed the “Statement of Allegations”. That letter invited the Grievor “to give some consideration to witnesses and documents which you feel will support your position regarding these allegations.” -23- [63] Three days later, on July 31, 2014, at 3:58 pm, Ms. Gearing sent the following email to Superintendent Gulbinski and Deputy Superintendent Alphonso: Good Afternoon, I have met with both the complainant and respondent. The respondent has requested that a number of people be interviewed as witnesses. Of course, this will delay the process. The respondent has accepted responsibility for his behaviour and is willing to mediate. I will discuss this with Bo Jiang and see what he recommends. The OPSEU representative (Jim Richards) was concerned regarding the suspension and I told him that I would let you know that the interviews went well. He seemed to feel that the respondent may be back to work since he has completed his interview. The complainant recommended that the respondent be advised that his behaviour was unacceptable… (emphasis added) [64] So, at this point, Ms. Gulbinski, and, presumably Ms. Alphonso, knew that the CT had unreservedly apologized as set out in his OR of June 30, 2014 and that he was remorseful and prepared to engage in alternative dispute resolution, namely mediation, as set out in Ms. Gearing’s email of July 31, 2014. Also, the position of the complainant/grievor was that the respondent (CT) be advised that his behaviour was unacceptable. I find as a fact that this latter recommendation of the complainant had already occurred. It is more likely than not that this is so since it is the only inference that can be drawn from those two documents. [65] Accordingly, the potential resolution of the germane aspects of the Grievor’s concerns was staring management of the institution and the WDHP Investigation in the face by July 31, 2014, one month after the Grievor’s report of the incident. -24- [66] Almost one month later, Bo Jiang and Janet Gearing are questioning the Grievor’s motivations in filing “this complaint”. As set out above, it was the Institution’s management, specifically D.S. Alphonso, who initiated the WDHP process. [67] Rather than providing any comment to Ms. Gearing having suggested that she would discuss the possibility of engaging in mediation with him, on August 21, 2014 Bo Jiang sent the following email to Janet Gearing and Superintendent Gulbinski, copied to D.S. Alphonso Hi Anna, I spoke with Janet this morning. A witness provided information suggesting that the Complainant (AB) has been telling people that she filed her WDHP complaint to protect said witness, which according to this witness, is not true. Janet and I are both concerned about the confidentiality requirement under the Policy, and question the Complainant’s motive in filing this complaint. I clarified that Janet can make findings, based on evidence collected and a balance of probabilities, about inappropriate conducts by the Complainant, in this same investigation, and that management can address those conducts accordingly. Janet has kindly agreed to brief you about this new development. To address this issue, I suggest that Jennifer (or you, in her absence), as the Responsible Manager, issue a letter as a formal warning. I am attaching a template confidentiality reminder letter that can be adapted for your use. Please let me know if you wish to discuss further about this suggested approach. Hello Janet, As discussed, could you please brief Anna about this matter? Also, after further consideration, I suggest you arrange for a follow- up/rebuttal interview with AB to let her respond to those alleged inappropriate conducts. We can discuss more after you complete your last witness interviews. Thank you, -25- Bo Bo Jiang WDHP Advisor (emphasis added) [68] I find as a fact that as of August 21, 2014 the WDHP Advisor told the WDHP Investigator that she had the jurisdiction to make findings regarding allegations that the Grievor had breached the confidentiality required in a WDHP investigation and that Ms. Gearing should hear from the Grievor on that issue. Further, and nonetheless, Bo Jiang advised the institution’s management to “issue a letter as a formal warning”. That can only be taken as advice to discipline the Grievor for alleged conduct for which the Investigation had not yet made a finding. [69] Meanwhile the workforce was in turmoil. On July 5, 2014, the CT’s ally filed an OR disputing the severity of the Grievor’s account of the incident at the DT Course. [70] On August 12, 2014 the ally alleged that the Grievor had made threats against her and she made a Bill 168 Complaint which resulted in the Grievor being reassigned. That complaint triggered an OR from a different employee on the same subject. On August 13, 2014 the Grievor was required to respond to an allegation against her by the ally, said to have occurred on August 4, 2014. Another co-worker buttressed that complaint with an OR dated August 12, 2014. Another co-worker filed an OR dated August 20, 2014 regarding an allegation made against her by the ally that a co-worker posted threats against the ally on -26- social media. The author of that OR said in the OR that the posting on social media was a way to vent, “out of frustration over the way I have been treated at work during the previous weeks”; she also said that the comments were not directed at anyone personally. The Grievor filed an OR dated the same day responding to alleged threats by her against the ally. On August 21, 2014 the ally filed an OR making various allegations against the Grievor and said in closing “I am working in the reception/visits area next week and would like to know that I will be safe from [AB’s] harassment, intimidation and scare tactics.” Another OR from the ally complained of the Grievor’s actions on August 27, 2014. That OR, dated the same day, characterized those actions as scare tactics and bullying behaviour. An OR was filed dated August 15, 2014 by the CT’s fiancé which says it was filed in the wake of [the grievor’s] accusations against the CT. Another OR was filed by the same person on August 20, 2014 accusing the Grievor of aggressive behaviour towards the OR’s author, which she believed “has to do with the current investigation”. The same person followed up with an OR the next day saying she felt bullied and felt like the Grievor was trying to intimidate her, which made her feel “sick to my stomach”. The ORs then jump to October, 2014 when the ally complained in an OR dated October 22, 2014 that the Grievor “continues to intimidate me and poison my work environment.” On October 15, 2014, another co-worker was asked to file, and did file, an OR related to the allegations regarding the purported incidents of August 4, 2014. That OR had been requested by OM Christina Day, who reported to Superintendent Gulbinski on October 16, 2014 that no specific threat had been made. On November 16, 2014 the ally again alleged ongoing -27- vexatious comments and conduct, by the Grievor, also on November 6, 2014 and another dated the same day alleging the same on November 8, 2014. Other co- workers were asked by management to file ORs about interactions between the Grievor and the ally on these days, as was the Grievor. As set out in the Employer’s submissions, most of these ORs were deemed to be meritless, and the Grievor was not advised of their existence. [71] It was not until December 10, 2014 that the Bill 168 complaint filed by the ally on August 12, 2014 was dismissed by Superintendent Gulbinski as uncorroborated hearsay. As set out above, in the meantime the institution appears to have been in turmoil as a result of the incidents alleged to have taken place at the DT Course on June 3, 2014. [72] By Memorandum dated January 23, 2015 Superintendent Gulbinski advised the Grievor that she was “complicit” and contributed to the poisoned work environment at the June 3, 2014 DT Course and would have to attend an allegation meeting on February 6, 2015 regarding possible discipline. On March 16, 2015 the Grievor was given an 8-day suspension for not upholding the highest level of professionalism expected of “… an employee of the Ontario Public Service, a Correctional Officer and more importantly, a Defensive Tactics Instructor…” The letter and discipline resulted from the WDHP fact- finding/investigation report which concluded that, “There is no evidence that the dildo being black held racial connotations” but that CT had engaged in discrimination and a poisoned work environment based on sex. -28- [73] From January 23, 2015, the date of the allegation memorandum, until March 16, 2015, the date of the Grievor’s disciplinary suspension letter, twelve ORs were filed documenting purported interaction between the ally and the Grievor on November 4, 2015 and January 31, 2016. [74] Nothing seems to have been done by management to address the obvious turmoil in the workplace other than to discipline the Grievor on March 16, 2015 for events that she had been required by Mr. Lee to report, relating to the DT Course on June 3, 2014, almost nine months earlier. The CT was also disciplined. [75] On January 5, 2016, the Grievor filed a WDHP complaint, which went to Cory Harris on Thursday, January 7, 2016. In the documentation therein the Grievor stated in part: I have always been willing and eager to pursue mediation, which was recommended as part of the grievance settlement but to date has not been executed or honoured. [76] Subsequently the CT filed ORs, dated May 26, 27, July 6, October 14, 2015 and January 10, 2016 and January 13, 2016 making further allegations against the Grievor, primarily regarding the Grievor being in his work area. He also sent an email to Supt. Gulbinski and D.S. Alphonso on January 6, 2016 documenting a conversation with D.S. Alphonso on January 4, 2016 about working with the Grievor and documenting that he had spoken with Mr. Cory Harris, the WDHP Advisor that he had contacted the previous November. He had also sent a covering email, copied to D. S. Alphonso, with his OR of the same date. -29- [77] On January 11, 2016 D.S. Alphonso sent the following email to Anne-Marie Fairweather, “Strategic Organizational Renewal/Programs and Operational Policy Branch, Organizational Change Liaison, Operational Support Division, Ministry of CSCS.” That email was to request the use of the Correctional Services Mediator Network. (See Alphonso will-say at paragraphs 217 and 218). The email of January 11, 2016 reads as follows: Good Morning Anne-Marie, Attached is copy of a fact finding for an incident, which occurred in June 2014. As a result, the two correctional officers were disciplined in April 2015. Both officers grieved their discipline. One was at the GSB in July 2015 and agreed to mediation with the other party (I’ve included a copy of the MOS which speaks to the mediation piece) … There has been ongoing issues among the officers as a result of the initial incident. Both parties have now agreed to mediation, as a result, I am requesting the use of the network to facilitate this process. I am sure you will have questions after reviewing the documents; please feel free to contact me anytime. Thank you. Regards, Jennifer (Emphasis added) [78] In my view, it is an understatement of the first order to say, “there has [sic] been ongoing issues among the officers as a result of the initial incident”. It would be more accurate to say that the workplace was in a state of turmoil as a result of the initial incident. [79] It is interesting to note that D.S. Alphonso observes that one of the officers was at the GSB in July 2015, six months earlier, expressing an interest in mediation, yet this is the first overture by the institution’s management to ask for assistance in obtaining mediation. Janet Gearing, the WDHP Fact Finder/Investigator, -30- advised Supt. Gulbinski and D.S. Alphonso in an email dated July 31, 2014, one year earlier, that the CT was willing to mediate. [80] On January 28, 2016, D.S. Alphonso reached out to Cory Harris, as had the CT before her, who had carriage of the Grievor’s recent WDHP complaint, “to discuss the ongoing issues raised by [the CT] and the Grievor”. In D.S. Alphonso’s will-say statement, at paragraph 216, she said: At this time management sought advice on how to deal with the ongoing situation in the workplace. Management was advised to keep the parties separate and to continue attempting to arrange a workplace mediation … between the parties in an attempt to resolve the disagreement. [81] As a result of the efforts at mediation Ms. Fairweather was able to advise, in an email to D.S. Alphonso dated March 31, 2016, that the mediation between [the CT] and [the grievor] had been successful, “They have agreed that going forward they will be able to work together respectfully and will discuss with each other any conflict that may arise. [82] At that mediation, the Grievor raised that “she has a somewhat troublesome working relationship” with [the CT’s] wife. In the result, Ms. Fairweather was able to report, in an email dated May 13, 2016, that “the mediation between [the CT’s wife] and [the grievor] was very successful. [83] In December 2016 Ms. Fairweather had a follow up with the CT and [the grievor] which “went well’. -31- [84] As set out above, mediation was first raised with the Institution on July 31, 2014 as an option to settle the differences arising from the DT Course of June 3, 2014. It took the better part of two years to actualize that request. I agree with the submission of the Union that the Institution’s management failed to “connect the dots” of the numerous ORs, which clearly arose out of the issues raised from the DT Course on June 3, 2014. Management at the institution turned a blind eye to the bifurcation and turmoil in the institution, which resulted from those issues. The central fact that fueled this turmoil was that the CT produced a black dildo named “Leon” at the DT Course. There can be no doubt as to the Fact Finder/Investigator’s conclusion that that incident was discrimination on the basis of sex. She found that it was discrimination on the basis of sex on the strength of one witness who “was offended by the presence of the dildo and was uncomfortable that the dildo was shown. A dildo is commonly recognized as a sexual item and, similar to pornography, it is inappropriate to have such an item in the workplace.” She said that there was “no evidence to support that the dildo being black held racial connotations”, that latter finding seems to be because none of the witnesses interviewed made that connection. I disagree with that finding. I am not bound by the findings of the Fact Finder/Investigator. I find that a white man producing a black dildo in the presence of a racialized woman at a training course in a Women’s Correctional Institution is discrimination on the basis of sex and race or colour. The colour of the dildo is a material fact, which evidences discrimination on the basis of race or colour as well as sex. -32- [85] The Union here asserts that there was a violation of article 3 of the Collective Agreement, and I so declare. The germane provisions of article 3 read as follows: 3.1. There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability, as defined in section 10(1) of the Ontario Human Rights Code (OHRC). … 3.3. The Parties are committed to a workplace free from workplace harassment, including bullying by other employees, supervisors, managers, any other person working or providing services to the Employer in the workplace, clients or the public, in accordance with the law. Workplace harassment is engaging in a course of vexations comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome. [86] There was discrimination, contrary to article 3.1, by reason of colour/race and sex in the behaviour of CT at the DT Course, which is what primarily grounds my declaration. I also find a violation of article 3.3 and I so declare. [87] It was the first duty of the Institution’s management to investigate what can only be described as a barrage of ORs over a close to two year period that alleged egregious behaviour by the Grievor. Many of those ORs were not raised with the Grievor; they were dismissed by the Institution’s management as groundless. Because of the lack of any meaningful investigation into these ORs, the Grievor was denied the right to know of and respond to them. Since management dismissed such ORs as having no merit, it is more likely than not that such vexatious comment and/or conduct against the Grievor in the workplace would -33- be known or reasonably ought to have been known by management not to be welcomed by the Grievor contrary to article 3.3 of the collective agreement. The Employer, as represented by the Institution’s management, was duty bound to investigate and take steps to resolve whatever workplace harassment that was occurring, including considering the ORs in their totality and ensuring that the Grievor was aware that they had been filed against her. Although D.S. Alphonso misrepresented to Bo Jiang, in her email of June 30, 2014, that the Institution was “also conducting an investigation into the matter”, there was no evidence that any such investigation actually took place. The Institution’s management was content to let the WDHP investigation proceed, and the situation fester, despite the willingness of CT to engage in mediation, after he had accepted responsibility almost two years earlier for his inappropriate behaviour at the DT Course. [88] The parties’ agreement in article 3.3 to take a stand against workplace harassment is, in my view, a substantive one, which includes the procedural requirement to investigate such allegations. Had the institutional management done so, it is more likely than not that the almost two year period of turmoil would have been avoided. It was the Employer’s choice not to manage the workplace that caused the strife, and that strife disproportionately impacted the Grievor. That was a breach of article 3.3. [89] The Union also pleads a breach of article 9, which reads in part as follows: -34- 9.1. The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. [90] For the reasons set out above regarding the violations of article 3 of the collective agreement, and on the strength of those reasons I also declare that article 9 was violated by the Employer. It is more likely than not that the Employer’s failure to investigate and pursue what in its submissions before me it characterized as ORs having no merit put the Grievor’s health and safety at risk. [91] Article 3.1 incorporates by reference the provisions of the Ontario Human Rights Code. Section 1 of the OHRC reads as follows: 1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 1; 1999, c. 6, s. 28(1); 2001, c.32, s. 27(1); 2005, c.5, s.32(1); 2012, c.7, s.1. [92] Accordingly, the Employer’s actions/failure to act were not only a breach of article 3 of the collective agreement, but were also a breach of the Code, and I so declare. [93] Collective agreements carry with them implicit terms and conditions (see Charlton, supra, and the well-known case of Toronto Transit Commission v. Amalgamated Transit Union (Stina Grievance) (2004), 132 L.A.C. (4th) 225 (Shime). -35- [94] The Occupational Health and Safety Act. R.S.O. 1990 c. 0.1 sets out the duties of an employer required to protect a worker from harassment. Section 32.0.7(1)(a) provides as follows: 32.0.7(1) To protect a worker from workplace harassment, an employer shall ensure that, (a) an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances; [95] As set out in my reasons above, and in the Employer’s submissions, the Employer knew that many of the ORs directed against the Grievor had no merit. However, rather than duly investigate the incidents fomented by her coworkers in the form of groundless ORs, it abdicated its duty under OHSA s. 32.0.7(1)(a). In MoT and OPSEU (Louis), supra, at paragraph 93, I found, sitting as a Vice-Chair of the Grievance Settlement Board, that the Employer there had failed in its duty to thoroughly investigate the circumstances evident in that case. I relied on paragraph 80 found in Ranger, supra, a case which was laid before me by the Union in the instant matter. That paragraph bears repeating here, and I rely upon it; it reads as follows: Counsel for the union argued that there is some authority that an employer is strictly liable for the discriminatory acts of its employees whether they are “employees’ or managers and cited Robichaud and Janzen, supra, and urged me to find the employer strictly liable here. Counsel for the employer submitted that the GSB has considered and decided this issue and I should follow those decisions. The issue was addressed by Vice-Chair Dissanayake in Simon, supra. The board quoted Chan, (1990/90) which held: There is no strict liability on the employer, in that merely because an employee racially harassed or put another employee at a health or safety risk, the employer is thereby exposed to liability. The employer’s liability depends on its knowledge of the offensive conduct and its response to it. However, in considering the employer’s knowledge the test is not purely subjective. If the employer lacked knowledge because -36- it showed a lack of interest or did not have a reasonable system for detecting and monitoring of offensive conduct, this does not exonerate it. To hold otherwise would be to make the obligation imposed on the employer by the collective agreement provisions meaningless. The employer would be able to circumvent that obligation by merely closing its eyes and ears. The parties could not have intended that. (Emphasis added by the Board in Simon) (P. 14) [96] As in Louis, supra, the Employer here failed in its statutory and implied duty to the Grievor to get to the bottom of the vendetta against the grievor, thereby exposing her to harassment and a poisoned work environment. [97] Both grievances are allowed. The circumstances created by OM Cayton arising from the second grievance were the direct result of the Employer failing to apprise its supervisory staff of the decision to keep the grievor and the CT apart. The incident between the Grievor and OM Cayton occurred on Tuesday April 26, 2016. [98] As set out above, the parties agreed that the process to be followed in these proceedings was that their witnesses would file will-say statements that would stand as the witness’s evidence in chief. The evidence of D.S. Alphonso, as quoted in my reasons above in paragraph 216 of her will-say, was that Corey Harris’s advice on January 28, 2016 to Ms. Alphonso was “to keep the parties separate.” By not ensuring that they were kept separate, Management chose not to follow that advice. The incident between the Grievor and OM Cayton was inextricably linked to the turmoil in the workplace that resulted from the circumstances of the DT Course and it contributed to its continuation. -37- The Decision [99] The two grievances are allowed. I remit the issue of the appropriate remedy to the parties. I remain seized to deal with the matter of remedy should the parties be unable to agree on the appropriate remedy. I also remain seized to deal with any and all other issues in connection with the implementation of this Decision. Dated at Toronto, Ontario this 22nd day of September, 2020. “Daniel A. Harris” ______________________ Daniel A. Harris, Arbitrator