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HomeMy WebLinkAbout2017-2237.Freisinger.21-05-03 Decision Crown 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# 2017-2237; 2018-1132; 2018-2584 UNION# 2017-0164-0037; 2018-0164-0020; 2018-0164-0041 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Freisinger) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Dale Hewat Arbitrator FOR THE UNION Iliad Nazhad Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Cristina Tomaino Crawford Chondon & Partners LLP Counsel HEARING May 28, October 5, 7, 27, 28 2020; January 19, 25, February 4, March 9, March 22, 2021. - 2 - Decision [1] This case involves the grievance of a three-day suspension, ten-day suspension, and a termination for just cause of Mr. Robert Freisinger (the “Grievor”), a 17-year employee working as a warehouseman in the LCBO distribution centre in London, Ontario. Both suspensions and the Grievor’s termination on September 4, 2018 involved conduct contrary to the LCBO’s Workplace Harassment and Prevention Policy (“WHPP”). The Employer maintains that it is undisputed that the Grievor engaged in the misconduct for which he was disciplined and that there are not mitigating circumstances in this case that would justify the overturning of discipline and substitution of a lesser penalty. Other than one allegation of misconduct involved in the culminating incidents leading to the Grievor’s termination, the Union does not dispute that the Grievor engaged in conduct contrary to the WHPP. However, the Union argues that there are sufficient mitigating circumstances, including the existence of underlying mental health issues that should be considered and it has asked me to reinstate the Grievor to his former position. [2] Having considered all of the evidence and the thoughtful submissions made by both Counsel, I have decided to dismiss the grievances and uphold the Employer’s decision to terminate the Grievor’s employment. I appreciate all of the thorough testimony of the witnesses and respect the Grievor’s frankness about his life’s circumstances in his testimony. However, after careful consideration of the evidence, the mitigating circumstances advanced by the Union do not persuade me to dismiss the suspension grievances or to substitute a lesser penalty, or to reverse the termination by reinstating the Grievor. Below are my reasons for this decision. [3] Much of the facts in this case pertaining to the discipline and dismissal imposed are not in dispute. Where there is a difference in recollections of facts, that will be pointed out and, where necessary, I will make a finding of facts based on the usual arbitral considerations in assessing credibility and weighing of the evidence as listed in Ontario Public Service Union v North Simcoe Hospital (Jeannotte Grievance) [2004] OLAA No 489 at paragraph 16: - the demeanour of the witnesses when giving their evidence. - the firmness of their recollections. - the clarity, consistency, and overall plausibility of the testimony when compared to the testimony of others and tested by cross-examination. - the ability of the witnesses to resist the tug of self-interest or self-justification ----- when framing their answers. - the consistency or otherwise with whatever documentary material is available to corroborate what must have occurred; and, - what seems most probable in all the circumstances. The Facts [4] Three-Day Suspension - 3 - On June 28, 2017, the Grievor was issued a three-day suspension following an altercation on May 18, 2017 with a co-worker, Cathy Allison, regarding sorting of skids. The letter of suspension confirmed that the Grievor admitted to having an interaction with Ms. Allison, where he approached her on the loading dock and yelled at her saying she was not sorting the skids correctly and started aggressively pushing skids around while calling her lazy. It was also confirmed that Ms. Allison reacted to the Grievor by raising her voice and commenting sarcastically on the Grievor’s attendance pattern. During the allegation meeting that was held on May 25, 2017 the Grievor did not apologize for his behaviour but stated that the interaction may not have happened if management had dealt with the issue of assignment of work for skid sorting. In deciding upon issuing a three-day suspension, the Employer concluded that the Grievor’s conduct towards Ms. Allison was disrespectful, inappropriate and/or offensive and in contravention of the WHPP. Additionally, the Employer relied upon conduct of a similar nature engaged by the Grievor towards another co-worker, for which he received a three-day disciplinary suspension on December 24, 2015, which was not grieved. The Grievor was spoken to again on June 24, 2017 by his supervisor, Chris Lukings, about how the Grievor upset Ms. Allison that morning during work and how she asked to not work with the Grievor anymore. Mr. Lukings summarized the incidents in an email, dated June 24, 2017 which noted that the Grievor reacted aggressively when Mr. Lukings asked that he stay away from Ms. Allison commenting how “I’m the one getting screwed here”. [5] Lisa Taylor, Operations Manager for the LCBO London Warehouse, testified about her involvement in the investigation of the May 18, 2017 incident and why the decision was made to issue a three-day suspension. Ms. Taylor recounted the investigation meeting when she met with Cathy Allison on May 24, 2017. The Union President, Kevin Arthur was in attendance to support Ms. Allison. Referring to her notes taken at that meeting, Ms. Taylor recalled that Ms. Allison was upset by the Grievor’s actions, comments and aggressive behaviour and told Ms. Taylor that his behaviour needed to stop. Ms. Taylor, together with another Operations Manager, Joe Hollyman and the Grievor’s direct supervisor Jim MacPhearson met with the Grievor and his Union representative Dan Rath in an allegation meeting on May 25, 2017. When confronted with Ms. Allison’s allegations, the Grievor agreed that there had been an altercation which included yelling back and forth between him and Ms. Allison. The Grievor also stated that he was angry about Ms. Allison making more work for everyone and admitted to calling her lazy. When questioned about how the Grievor came across during the May 25, 2017 meeting, Ms. Taylor stated that the Grievor wanted Ms. Allison to be dealt with as she was making more work for him. Reference was also made to a voicemail that the Grievor left for Ms. Taylor in which he expressed that he wanted to speak with Ms. Taylor about Ms. Allison and expressed that someone should discipline Ms. Allison because she was making more work for everyone. Although Ms. Taylor did not respond to this voicemail, she reviewed how the Grievor expressed the concerns mentioned in the voicemail during the May 25, 2017 investigation meeting. One other witness was interviewed following the meetings with Ms. Allison and the Grievor and her information confirmed the facts of the interaction. Ultimately, both Ms. Allison and the Grievor were disciplined for their behaviour in the May 18, 2017 incident. On June 28, 2017 - 4 - Ms. Taylor issued the three-day suspension letter to the Grievor indicating the rationale for the decision as outlined in the preceding paragraph. When asked during cross-examination about whether the Grievor was truthful about his conduct, Ms. Taylor agreed that he was truthful but did not agree that the Grievor was accountable or remorseful for his actions. [6] During his testimony, the Grievor acknowledged that he did not express regret or apologize for his behavior towards Ms. Allison in the May 25, 2017 allegation meeting. He mentioned that, at the time, he was hurt because Mr. Arthur was representing Ms. Allison. He also testified that he recalled being frustrated about how skids were sorted and that he had raised workload issues with management previously looking for help but that his issues were not addressed. On May 18, 2017, the day of the incident, he recalled working while observing Ms. Allison sitting in an office with her feet up on the desk and that seeing her sitting this way while he was busy working made him angry resulting in him yelling at her and calling her lazy. He also noted that he felt she was attacking him because she made negative comments about his attendance pattern. While the Grievor could not recall if he raised mental health issues in the May 25, 2017 meeting, he was adamant that it was an issue that he raised in every disciplinary situation, despite there being no reference to mental health issues in Ms. Taylor’s notes of that meeting. The Grievor testified, in examination in chief, that he now regrets his actions and the comments he made noting, that since his termination, he has had a lot of time to reflect on his past behaviour and stated that “ this is not who I am” and that he would handle things differently. In his cross-examination, when asked about the June 24, 2017 interaction with Ms. Allison, he stated that his actions were not so much about her but were about his frustration with the process for how work was organized. The Grievor remarked that he seeks the truth and that he will raise an issue since, from his perspective, no one does anything until someone gets upset. Prior Discipline [7] In reaching the decisions to issue the 2 suspensions and termination in this case, the Employer also relied on prior discipline imposed on the Grievor that was on his record that had not been the subject of a grievance. Michelle Farrugia, an LCBO Human Resources Advisor testified about a one-day suspension handed down on April 6, 2016. The suspension resulted from an incident that occurred on March 18, 2016 in which the Grievor left work angry because he had not been assigned a forklift job that day. According to the allegations, which were not disputed by the Grievor, he told his Supervisor Dave Groke that he was not happy about their discussion regarding the assignment of accommodated personnel who held positions lower in seniority than the Grievor and commented that he needed to ask Ms. Taylor “why people on accommodation get the best jobs?”. Following his discussion with Ms. Taylor, the Grievor approached Mr. Groke stating that he was leaving work and when Mr. Groke asked why he was leaving the Grievor indicated that he was angry. During the pre-disciplinary meeting on March 22, 2016, the Grievor indicated that he needed to leave work when he is angry or frustrated, as needed, rather than risk - 5 - jeopardizing his job. The one-day suspension letter issued on April 6, 2016, found that the Grievor’s actions in leaving work were consistent with non-compliant behaviour warranting disciplinary action. The letter also reminded the Grievor that he needed to navigate through frustrating situations without choosing to leave a shift and that management had addressed other similar behaviour by suggesting “cooling- off” strategies to assist the Grievor to cope with anger or frustration. The Employer also reminded the Grievor of the availability of the Employee Family Assistance Program (“EFAP”) and encouraged him to engage in opportunities to assist in taking the necessary steps to correct his behaviour. When asked, during testimony, about this suspension and his comment “why people on accommodation get the best jobs”, the Grievor testified that at the time it seemed unfair to him but that now he knows that decisions regarding job assignment for accommodated employees are not his business. He also spoke about how the strategies for short periods “cooling off” did not work for him as he had been advised from counsellors that he needed to “remove himself from the equation”. Yet from the Grievor’s perspective, he commented that the Employer was more focused on getting product out the door, rather than in assisting him. [8] Reference was also made to a three-day suspension issued on December 24, 2015 where it was found that the Grievor displayed abusive behaviour towards co-workers and abandoned a shift when he was unhappy with how work was assigned. In this letter of suspension, it was found that the Grievor left work without permission, refused to identity himself to an LCBO security guard and then on December 21, 2015, had a dispute with a co-worker because he believed that co-worker was not performing the job correctly. According to the Employer’s findings, the Grievor approached the co-worker, in the presence of another employee, stating “ I’m gonna say this in front of Carter, if you ever give me the let’s go attitude again, I’m gonna knock you the fuck out”. Ten-day Suspension [9] On March 14, 2018, the Grievor received a ten-day disciplinary suspension stemming from an altercation he had with the Local Union President, Kevin Arthur. The Grievor was advised by Ms. Taylor on February 8, 2018 that there would be an investigation meeting with respect to an alleged violation of the LCBO’s Human Rights/Workplace Harassment Prevention (“HRHP”) policy in which it was alleged that he acted inappropriately and disrespectfully towards an accommodated worker in front of several other employees. According to the allegations, on February 6, 2018 the Grievor approached Mr. Arthur on the workplace floor and started yelling at him about “getting off accommodation”. When Mr. Arthur heard this comment, he said “excuse me”, whereafter, the Grievor stated “You are fucking everyone over” gave him two thumbs up and said, “best President ever”. Later that day, in the employee lunchroom, the Grievor, again motioned thumbs up in close proximity to Mr. Arthur and continued to make comments that everyone is talking about Mr. Arthur and stated, “you’re screwing over your fellow brothers and sisters”. The situation then turned into a heated exchange between the two of them in which Mr. - 6 - Arthur responded aggressively, swore, and clearly told the Grievor not to look at him or talk to him. [10] Ms. Furrugia testified that she met with Mr. Arthur the following day and recalled how he was anxious about the situation and hesitant to make a complaint as he did not have faith in a resolution and worried that more discipline for the Grievor would worsen things. He also expressed concern that he believed that other warehouse employees questioned him being an accommodated worker. Notwithstanding Mr. Arthur’s hesitation, the investigation and allegation meetings continued. On February 13, 2018, Ms. Taylor along with Mr. MacPhearson met with the Grievor and his Union Representative, Walter Hohman to review the allegations. Ms. Taylor recalled that the Grievor wanted some answers about Mr. Arthur’s accommodation. During that meeting, the Grievor did not deny the allegations. Mr. Hohman mostly spoke on the Grievor’s behalf during the meeting. Mr. Hohman spoke about how the Grievor had approached him in the past to discuss how workplace accommodations were handled and had tried to get assistance from the Employer and the Union to facilitate a meeting between him and Mr. Arthur in order to have a conversation to resolve issues. When asked by Mr. MacPhearson why the Grievor wanted to meet with Mr. Arthur, the Grievor explained that he wondered how it was possible to play in a outside men’s competitive hockey league and come to work and be on accommodation. The Grievor reiterated that he did not understand how that circumstance works, stated that no one wants to address the issue and that other employees feel the same way. According to Ms. Taylor’s notes from the meeting Mr. MacPhearson reviewed how the Employer deals with accommodation requests including working with the WSIB for work related injuries and accommodations. Mr. MacPhearson described how accommodation needs are assessed based on the medical advice and documentation provided by an employee’s health professional, including describing how an employee might be requested to attend an independent medical exam and emphasized how an employee’s medical information and corresponding accommodations are confidential. Mr. MacPhearson also told the Grievor and Mr. Hohman, that the Employer continues to take steps to raise awareness about accommodation requirements including mentioning that work was underway to do a small presentation on the topic. However, while acknowledging the Grievor’s frustrations about accommodation, Mr. MacPhearson told the Grievor that his frustrations did not excuse the behaviour that occurred on February 6, 2018. At the end of this meeting, the Grievor did not say he would do anything differently except maybe not use the thumbs up signal again. During cross-examination, the Grievor stated that Mr. MacPhearson only told him that information about an accommodated worker was not his business but did not agree that Mr. MacPhearson outlined and reviewed the Employer’s role in the accommodation process. [11] Ms. Taylor also testified, that during the February 13, 2018 meeting, the Grievor mentioned concerns about how his friendship with Mr. Arthur had deteriorated over the past couple of years, commenting how Mr. Arthur had been his friend who knew all about the Grievor’s personal issues but was perturbed at how things between them had changed including Mr. Arthur not wanting to speak with him. The Grievor also stated that Mr. Arthur had threatened him previously related to a co-worker and - 7 - friend of Mr. Arthur’s who had been renting a room in the Grievor’s house but whom the Grievor had to evict. Based on Ms. Taylor’s notes from her meeting on February 15, 2018 with Mr. Arthur, he told her that he believed that the Grievor has held a grudge against him ever since May 2017 when Mr. Arthur assisted Ms. Allison with her complaint against the Grievor and that the Grievor had sent him text messages in June 2017, following the three-day suspension sarcastically “thanking” Mr. Arthur for the suspension stating “ You can rejoice with Cathy, thanks for the 3 day suspension- don’t talk to me, don’t look at me” and stating “you fucked over the wrong guy”. After receiving these texts, Mr. Arthur removed the Grievor from his phone contact list and advised Ms. Taylor that “that is why I don’t talk to him”. Mr. Arthur also mentioned that in July 2017, he had heard from co-workers that the Grievor was telling people about the fact that Mr. Arthur was on accommodation and was “screwing everyone over”. Following the meeting with Mr. Arthur, the Employer held another meeting with the Grievor on March 5, 2018 to review new information that was raised in the February 15, 2018 meeting with Mr. Arthur. During this meeting, the Grievor admitted that he had spoken with a co-worker about Mr. Arthur’s accommodation and stated that “my opinion is my opinion” and that he had asked to speak with Mr. Arthur, to no avail. The Grievor also stated that he is not going to change who is. The Grievor also talked about how he felt threatened by Mr. Arthur in the lunchroom on February 6, 2018 by the way Mr. Arthur engaged with him recalling being sworn at and how Mr. Arthur puffed his chest, moved towards the Grievor in an aggressive manner and had to be physically restrained. [12] In his testimony about the Feb 6, 2018 incidents and the allegation meetings, the Grievor admitted, that due to his level of frustration, he sent the prior text messages to Mr. Arthur and agreed that he engaged in the conduct against Mr. Arthur on February 6. 2018. The Grievor testified that he was hurt about the fact that his friendship with Mr. Arthur had deteriorated and stated numerous times that he did not understand why Mr. Arthur would not speak with him. When asked in examination- in-chief about why he wanted to meet with Mr. Arthur, the Grievor initially provided two reasons; 1) That given Mr. Arthur was Union President, he wanted to know how he could play hockey and come to work on accommodation, and 2) For personal reasons, he wanted to know why Mr. Arthur was ignoring him as the Grievor felt betrayed and hurt as he thought he could trust Mr. Arthur. When asked to clarify if these were two separate issues, the Grievor stated his need to speak with Mr. Arthur was not so much about accommodation but about their friendship and the hurt it was causing the Grievor and to try to understand why Mr. Arthur had ended the friendship. The Grievor also noted that his need to speak with Mr. Arthur about accommodation was nothing personal but instead was a Union inquiry and was frustrated that Mr. Arthur would ignore a request to discuss Union issues. In cross- examination about the February 13, 2018 meeting, the Grievor could not remember asking about how accommodation was handled but did recollect his comments about playing hockey while being on a work accommodation and his comments that no one wanted to speak about the accommodation issue. While agreeing that, during the meeting, he may not have given full details about his concerns with Mr. Arthur, the Grievor expressed that trying to understand what happened with the friendship was his motivation for wanting to speak with Mr. Arthur. - 8 - [13] Testimony about the allegation meetings was also given by Mr. Hohman, the Grievor’s Union representative. In his Union capacity, Mr. Hohman also held the role of Equity Steward and he testified that he was very knowledgeable about human rights issues, accommodation issues and respectful workplace policies. In this capacity, Mr. Hohman explained that bargaining unit members, including the Grievor, would seek his assistance for various human rights and respectful workplace issues. He shared that there was tension in the workplace generally regarding accommodated workers being assigned work outside of their seniority level. Separate from the allegation meetings, Mr. Hohman testified that he had previously discussed accommodation assignment issues with the Grievor about how he was not entitled to private information about another employee’s workplace accommodation and how due to accommodation needs, job assignments may trump seniority rights. He also testified about how the Grievor had asked him to speak on the Grievor’s behalf, with Mr. Arthur prior to the February 6th incidents to get insight about the Employer’s approach to the accommodation process. With respect to the February 13, 2018 meeting, Mr. Hohman had a general recollection about Mr. MacPhearson reviewing the accommodation process with the Grievor. He also agreed that the Grievor was frustrated about not having an answer from Mr. Arthur, the Union President, about playing hockey while on accommodated work and was frustrated about Mr. Arthur not engaging in their friendship. Mr. Hohman also agreed that he did not raise the possibility of the Grievor’s conduct being related to mental health, but he also qualified that he did not think that the Grievor made a link between mental health and his behaviour. [14] Upon reflection, the Grievor testified that he realizes now that his comments and actions towards Mr. Arthur would not be welcome and that he could not have made Mr. Arthur speak to him. The Grievor shared that he is not the person who he was and that he does not like the person he was back then, describing himself as a work in progress. He recounted that in 2018, he was angry and hurt and that was why he behaved the way he did at the time. He also explained that in his questions about accommodation, he was lobbying about an important issue involving the assignment of work to accommodated employees but also stated that he used the accommodation topic as a way to encourage Mr. Arthur to speak with him about their loss of friendship. [15] In the March 14, 2018 ten-day suspension letter, the Employer confirmed that the Grievor engaged in serious misconduct in violation of the HRHP policy. The Grievor was advised that notwithstanding his frustration and lack of understanding or agreement with the accommodation process, that he engaged in conduct that was known or ought reasonably to be known to be unwelcome and that such conduct discriminated against an accommodated co-worker. Specifically, the letter of suspension summarized the Grievor’s explanations for the conduct to include his frustration over Mr. Arthur playing in a competitive hockey league but has accommodations while at work. Reference was made to the fact that the Grievor had indicated that his argument with Mr. Arthur had been going on for several months and that there had been times when Mr. Arthur had threatened him and said statements such as “cut it out or else”. In addition, it was noted that the Grievor had - 9 - attempted to get answers from the Union about how accommodations are handled including seeking the Union’s help to facilitate a meeting with Mr. Arthur to resolve the accommodation issue. It was also noted that the Grievor had shared that he feels that “this is all coming back at you because you are expressing your opinion and that people don’t like to hear the truth and I am not going to change who I am.” [16] The suspension letter explained that in reaching the decision to issue a ten-day suspension, one of the factors the Employer considered was that this was not the first time that the Grievor had engaged in conduct of this nature for which disciplined had been imposed, referencing two other suspensions dated December 24, 2015 and June 28, 2017, for inappropriate and offensive comments directed towards co- workers. The letter further stated that it was the Employer’s position that, given the circumstances, the conduct on February 6, 2018 was viewed as serious misconduct constituting cause for immediate termination of the Grievor’s employment. However, on a gratuitous and without prejudice basis, the Employer decided to give the Grievor one last opportunity to demonstrate that he was capable of meeting the duties and expectations of his employment, including pursuant to the HRHP policy. The Grievor was warned that “any further misconduct, including conduct of a similar nature, will result in further and more serious disciplinary action, up to and most likely the termination of your employment.” As in previous disciplinary letters issued to the Grievor, he was again reminded of the availability of EFAP to assist employees experiencing various challenges, including personal and health issues. Termination of Employment [17] On August 23, 2018 the Employer sent a letter to the Grievor with respect to alleged violations of the HRHP policy. The letter stated that on the following dates, the Grievor engaged in bullying and/intimidating conduct and made inappropriate comments or gestures towards Mr. Arthur, an accommodated co-worker: - In and around May 14, 2018 you drove by Kevin Arthur several times doing an exaggerated stretch as though your shoulder was injured. - On June 18, 2018, you laughed at Kevin Arthur as he walked into the cafeteria. - On June 19, 2018, you spit on the hood of Kevin Arthur’s car. - On August 21, 2018, you made an exaggerated gesture with your shoulder while yelling “my shoulder, my shoulder” at Kevin Arthur as he drove out of the parking lot. - Other than the allegation about spitting on the hood of Mr. Arthur’s car, the Grievor admitted to the remaining above-noted allegations. [18] The impetus for the August 23, 2018 letter and subsequent investigation arose because Mr. Arthur had sent an email to Mr. MacPhearson on August 21, 2018 requesting that he needed to meet as soon as possible to address continuing escalating harassment by the Grievor. Mr. Arthur also shared that he was considering seeking legal advice about obtaining a restraining order, and possibly contacting the police as he felt his safety was in jeopardy. The next day Mr. Arthur met with Ms. Farrugia to share his complaint, repeating the concerns he had raised in his email to Mr. MacPhearson. - 10 - [19] On August 23, 2018 an allegation meeting was held with the Grievor, Mr. Hohman, Mr. MacPhearson and the Grievor’s immediate supervisor, Dave Groke. The meeting notes taken by Mr. Groke showed that when asked why the Grievor engaged in the alleged behaviour, Mr. Hohman explained that the Grievor had previously expressed frustration with the process and the lack of engagement from both the Union and the Employer. The notes also revealed that the Grievor added to Mr. Hohman’s point by reiterating his frustration that no one wants to address the issue of accommodation, again questioning the fact of playing hockey versus being accommodated at work. Mr. Groke thanked the Grievor for being honest and in response the Grievor stated that honesty means nothing since he ended up getting a ten-day suspension in March 2018 after he expressed his views. Mr. MacPhearson also took notes at the meeting and his recording of the conversation confirms Mr. Groke’s recollection including notes, for example, that showed that the Grievor was frustrated about the issue involving injured workers and the lack of engagement around accommodation and a quote about Grievor questioning how someone can play hockey at a competitive level and be accommodated. Mr. MacPherson’s notes also described that the while the Grievor confessed that his behaviour was not “okay”, the Grievor then remarked “but what else was I supposed to do?” The Grievor then continued to remark that being honest counts for nothing at the LCBO. The notes described Mr. Groke’s appreciation of the Grievor’s honesty but also showed that the Grievor was reminded that people are expected to change their behaviour. The notes also recorded that Mr. Hohman made a general comment about wanting to have a safe environment to avoid things escalating and that the Grievor mentioned that he has enough mental issues himself and that he will work on “that”. [20] Ms. Grove testified that the termination decision was made considering the seriousness of the conduct in light of the Grievor’s record of past discipline involving similar behaviour when weighed against any mitigating factors. Of critical importance was the final warning laid out in the ten-day Suspension letter handed out only five months before in March 2018 and the fact that the Grievor, again, did not express remorse for his admitted conduct. While agreeing on cross-examination that the Grievor was fairly frustrated during the August 23, 2018 meeting, Ms. Grove noted that it was mostly Mr. Hohman who spoke on his behalf. Ms. Grove stated that the Employer would have reviewed any current medical information, which was medical documentation from 2013. She acknowledged that the Employer did not ask for any further medical information from the Grievor during the August 23, 2018 but also noted that the Union did not offer any new medical information on the Grievor’s behalf, which was confirmed by Mr. Hohman in his testimony. Mr. Hohman testified that the August 23, 2018 allegation meeting was more of a fact-finding meeting and that he had hoped for some engagement from management but admitted that he did not provide any additional medical information or other mitigating facts for the Employer to consider before making its decision. During the hearing Mr. Groke also testified about the possibility of reinstating the Grievor. Mr. Groke, who had been the Grievor’s direct supervisor for many years, stated that he did not believe, that without help, the Grievor’s behaviour would improve. From his perspective, he believed that while the Grievor might have felt remorseful for the way he behaved in an outburst of - 11 - anger, Mr. Groke commented that the Grievor was not sorry about his views or about the person who was the target of an outburst. Mr. Groke also remarked that having the Grievor return to work would have a negative impact on the workplace because of his prior behaviour and that there would need to be follow-up with people who had been intimidated by the Grievor. In cross-examination, Mr. Groke, did state that if the Grievor returned to work and behaved appropriately, that he believed that Mr. Arthur could come to terms with the Grievor’s return. The Grievor’s Understanding of the Employer’s Accommodation Process [21] In reviewing the evidence it is also relevant to examine the testimony regarding the Grievor’s understanding and opinion of the Employer’s accommodation process and assignment of duties to accommodated employees. The Grievor admitted that he requested and was provided with workplace accommodation, in 2016 related to a shoulder injury and in 2013 and 2011 related to time-off for substance abuse and depression. In requesting accommodations, the Grievor filled out the necessary forms which included a page entitled “Information and Notice to Employees and Healthcare Providers Regarding Accommodation” that sets out the LCBO’s commitment to a consistent approach to the early and safe return to the workplace following and illness, injury or disability and outlines how reasonable accommodation is determined based on an individual functional capabilities, the availability of suitable, productive work and an assessment of an employee’s circumstances. He also spoke highly of the support he received from a former Supervisor, Vic Arujo, who assisted him in arranging time-off for substance abuse treatment. It was also clear that the Grievor, like all employees, attended annual training sessions related to human rights and harassment prevention, with the most recent sessions occurring on June 7, 2018 related to Workplace Violence Prevention course and a refresher course on Workplace Discrimination and Harassment Prevention. However, the Grievor could not recall receiving specific training on workplace accommodation nor could Ms. Farrugia recall 100% of what was covered in the June 7, 2018 refresher training session. What was consistent in the facts, is that the Grievor expressed his frustration with how accommodated workers were assigned jobs, noting that he did not understand the process and that it appeared to him that accommodated workers were treated more favourably in receiving premium jobs, like forklift driving, ahead of more senior employees. Evidence regarding the Grievor’s Mental Health [22] The Grievor was very open in his testimony about his personal mental health. He shared that he attributes most of his mental health and life’s challenges to being involved in a serious car accident that occurred in 1991 in which he suffered injuries including head trauma, but more tragically his friend suffered paralysis, for which the Grievor takes responsibility. The Grievor shared that following the accident, he has experienced depression, anxiety, lack of concentration and that he easily becomes angry and frustrated. In 2011, the Grievor took a leave of absence to deal with a - 12 - substance abuse addiction and also had a relapse in 2013 requiring a medical leave of absence. The Grievor returned to work without restrictions after both of these absences. Between 2013 and the Grievor’s termination of employment, the Employer did not receive medical documentation regarding the Grievor’s mental health, but did receive numerous doctors’ notes, as required under the Collective Agreement following an absence noting the Grievor’s absences were due to medical reasons. [23] The Grievor claimed that everyone knew he had mental health issues and that he raised this as a factor related to his behaviour in the allegation and disciplinary meetings. He also stated that he shared his mental health issues with the Employer, in 2011, when he met with Mr. Arujo to get assistance with a leave of absence for substance abuse treatment. The Grievor stated that he suffers from anger management issues and from Post Traumatic Stress Disorder (“PTSD”) and Mr. Hohman also testified, that from his personal experience and knowledge, the Grievor displayed symptoms consistent with PTSD. In support of his testimony, the Grievor shared a letter dated May 13, 2020 from Ms. Barak, a social worker, who he sought counselling from between April 2018 to December 2018. Ms. Barak was not called as a witness. In her letter Ms. Barak notes that the Grievor presented with many of the symptomatic criteria associated with PTSD but clarified that she is not a psychiatrist and that it is beyond her scope of practice to make a diagnosis. In addition to Ms. Barak’s letter, the Grievor shared a letter from his family physician Dr. Kimberly Thompson, dated June 3, 2020, which confirms that the Grievor “has not been seen for mental health since being a patient here and that he does have a history of Depression listed on his cumulative profile”. Dr. Thompson did not testify at the hearing. The Grievor also produced a letter from the John Howard Society, dated January 18, 2021 confirming that the Grievor was seeking counselling to address anger management. In his testimony, the Grievor stated that he had attended two sessions of counselling with the John Howard Society and that he planned to continue with counselling. Employer’s Submissions [24] The Employer submits that there is no question that the Grievor engaged in the misconduct for which he was disciplined and eventually dismissed. The Employer also asserts that there is no dispute between the parties that the Grievor’s conduct was contrary to the LCBO’s WHPP and HRPP. The Employer submits that the Union has failed to establish the existence of mitigating factors sufficient to overturn the discipline and substitute a lesser penalty, and therefore asks that the grievances be dismissed. The Employer argues that the Grievor’s testimony was not credible, and that the testimony of the Employer witnesses be preferred. In that regard, the Employer notes that the Grievor’s memory of events was incomplete and imprecise and was inconsistent when compared to other witnesses and their documented evidence. Furthermore, the Employer questions the Grievor’s account that he used the issue of accommodation to facilitate conversation between him and Mr. Arthur - 13 - and also questions the Grievor’s theory regarding the breakdown of friendship between the two. [25] In terms of training and review of the accommodation process, the Employer submits that the evidence of Ms. Taylor, Ms. Farrugia and Ms. Grove shows that not only did the Grievor receive employee training on the WHPP and HRPP, but he also received coaching about the accommodation process and the fact that other employees’ medical restrictions are confidential. The Employer points to further consistent evidence of coaching about the accommodation process from Mr. Groke who recalled speaking with the Grievor on numerous occasions in response to the Grievor’s frustration about job assignments given to accommodated employees without consideration of seniority. The Employer asserts that in comparison to Mr. Groke’s specific recollection about their discussions, the Grievor adamantly denied that any discussions or coaching occurred and repeatedly remarked that nobody discussed the issue concerning workplace accommodation. The Employer also highlights Mr. Hohman’s testimony which corroborated the evidence about Mr. MacPhearson reviewing the accommodation process during the allegation meeting leading up to the ten-day suspension and his testimony about how Mr. Hohman had discussed the accommodation process and medical confidentiality with the Grievor. [26] The Employer also states that the Grievor’s mental health cannot be taken as a mitigating factor because the Union has not established a nexus between his purported condition and the misconduct. Reference is made to the decision in Canada Safeway ltd. And RWDSU (MacNeill) (Re). [1999] SLAA No 1, in which the arbitrator summarizes the weighing of medical evidence in a case involving reinstatement: Looking at the evidence, the Employer emphasizes that there was no medical evidence: [66] Extrapolating from the past jurisprudence the elements that must be established before an arbitrator may consider reinstatement in a case where there has been a serious wrongdoing, such as a theft, which is attributed to illness, would appear to include the following: (1) It must be established that there was an illness, or condition, or situation being experienced by the grievor. Sometimes this is a true illness while other times it might be circumstances in a person's life that cause considerable psychological strain and can be as debilitating as a fully recognizable illness. To establish the existence of an illness or a condition, the grievor himself or herself gives testimony and it is usually accompanied by expert evidence of doctors or psychologists/counsellors. The latter evidence is sometimes presented through witnesses, other times through medical reports. In addition, often the grievor's evidence is supported by the testimony of co- workers or family members who can attest to a change in behaviour. (2) Once an illness or condition has been established, then a linkage or nexus must be drawn between the illness or condition and the aberrant conduct. The mere existence of psychological stress does not automatically lead to improper behaviour such as theft. Again, most commonly this is established by expert evidence. This is not a scientific test and often an arbitration board must, as the finder of fact, draw certain inferences which lead it in one direction or another. (3) If a linkage between aberrant conduct and the illness or condition is established, an arbitration board must still be persuaded that there was a sufficient displacement of responsibility from the grievor to render the grievor's conduct less culpable. Again, - 14 - using the brain tumor example, it may be concluded that the employee was acting as an automaton and was not responsible whatever for his or her conduct. On the other hand, even if a gambling or alcohol addiction is established, and it is established that but for the condition the aberrant conduct, such as theft, would not have occurred, it still may be concluded that the grievor possesses sufficient responsibility for his or her actions so that a substitution of penalty is not appropriate. This is precisely what occurred in the SaskTel case where it was accepted that the grievor had a pathological or compulsive gambling addiction and that it contributed to his acts of theft, but it was concluded that he was still responsible because he had been fully aware of his problem and he was fully aware of the avenues open to him to have his problem dealt with. In other words, the mere existence of an addiction does not in itself explain or justify serious aberrant conduct. There are many people with alcohol, narcotic, and gambling addictions but a very small number of those people steal money. (4) Assuming the three elements set out above have been established, the arbitration board must be satisfied that the grievor has been rehabilitated. This involves an acceptance by the arbitration board that the grievor's fundamental problems are under control. Of course, there can never be absolute certainty on this count nor should absolute certainty be required. However, there must be a sufficient degree of confidence that the employee can return to the workplace as a fruitful employee and that the underlying problems that led to the improper behaviour in the first place have been resolved so that the risk of that behaviour, or similar behaviour, occurring in the future is minimized. Again, in addition to the evidence of the grievor, it is usual that expert evidence would be submitted to establish that rehabilitation has occurred. [Emphasis added]. In the instant case, the Employer emphasizes that there was no medical documentation introduced showing that the Grievor had a diagnosis of lasting neurological memory issues, anger management, impulsivity or PTSD. In addition, the Employer points to the fact that the evidence shows the Management was not advised by the Grievor or his Union representatives of a mental health condition during the various discipline and attendance management meetings post 2013, nor was there any request for accommodation regarding mental health. While the Employer may have suggested EFAP assistance to the Grievor in attendance and disciplinary meetings, the Employer states that the Grievor never mentioned that his behaviour was linked to mental health concerns. The Employer notes that the only reference to mental health was the comment made by the Grievor in the August 23, 2018 allegation meeting, that he has enough mental issues himself but that no additional information was provided by the Grievor or Mr. Hohman. [27] In addition to the usual factors in assessing disciplinary penalties noted in Wm. Scott & Co (Re) [1976] BCLRBD No 98, the Employer argues that the Grievor’s bullying and harassment behaviour should be viewed as unacceptable conduct which undermines the employment relationship and the Employer’s duty under the Occupational Health and Safety Act to provide a safe workplace for all employees as noted in Tenneco Canada (Cambridge Facility) v United Steelworkers, Local 2894 (Teixeira Grievance) [2013] OLAA No 356. The Employer also relies on decisions in which terminations were upheld where an employee engaged in harassing behaviour whether it was harassment based on a prohibited ground of discrimination or harassment based on verbal injury that is not Code based: ( ITT Cannon Canada, - 15 - Division of ITT Industries of Canada and C.A.W Local 1090, Re [1990] OLAA No 131 and Teck Metals Ltd. (Trail Operations) v United Steelworkers, Local 480 (Oliver Grievance), [2015] BCCAAA No 27 and Re Canada Post Corp. and C.U.P.W. (Gibson) (1987), 27 L.A.C. (3d) 27). [28] Finally the Employer urges me to consider that the progressive discipline in this case proved wholly ineffective. In that regard, the Employer asserts that the Grievor was given multiple opportunities to reform but showed no improvement. In light of the Grievor’s long record of discipline, lack of remorse and evidence from Mr. Groke pointing to how the Grievor’s conduct had a toxic effect on other employees, the Employer argues that a viable employment relationship cannot be re-established. In support of this argument the Employer referred to the following excerpt from Brown & Beatty, Canadian Labour Arbitration at 7-302: “Where the problems underlying the grievor’s misconduct are ongoing, and the risk of recidivism appears high, or the grievor’s activities have poisoned the work environment for others, arbitrators will be less likely to interfere with the employer’s decision to modify its choice of penalty.” Union’s Submissions [29] The Union asks that I consider the Grievor’s 17 years of service and how he has been negatively financially impacted after losing his job at the LCBO. The Union advises that at 51 years of age and with limited skills, the Grievor has slim job prospects. The Union submits that the Grievor testified truthfully, from the heart and that his evidence was consistent. In addition, the Union distinguishes the Grievor’s conduct from the arbitral cases referred to by the Employer where behaviour has been found to be vexatious, violent, or discriminatory. In the instant case, the Union submits that Grievor’s words or gestures are not sufficient in themselves to support upholding the suspensions and his termination from employment. The Union also argues that the Grievor was not questioning Mr. Arthur’s individual accommodation circumstances, but rather was questioning the process of work assignment for accommodated employees, just as he expressed frustration with overall work ethic of other employees. In addition, the Union relies on the Grievor’s testimony that he now unequivocally understands that information about an accommodated employee is not his business. [30] The Union attributes the Grievor’s conduct towards Mr. Arthur to the deterioration of their friendship and the resulting hurt to the Grievor. In this regard, the Union highlights the Grievor’s evidence that he really wanted to talk with Mr. Arthur and did not understand why Mr. Arthur would not engage with him, despite their long friendship. While the disintegrated friendship does not excuse the Grievor’s conduct, the Union submits that the situation explains the Grievor’s state of mind at the time and supports the Grievor’s view that his conduct was not about Mr. Arthur’s accommodation but about the loss of their friendship. - 16 - [31] With respect to candour and remorse, the Union ask that I consider the fact that the Grievor at the investigation and disciplinary stages and at the hearing admitted to almost all of the alleged conduct. Even at the August 23, 2018 investigation meeting, the Union notes, that the Grievor acknowledged that his behaviour was not okay and said he “would work on it” in relation to his issues with anger, despite his comment “ what else am I supposed to do?”. Additionally, the Union states that in his testimony, the Grievor expressed complete remorse for his conduct and is embarrassed about his behaviour, repeatedly stating not only that he would change his behaviour, but also, that he is not the person who he once was admitting that Ms. Allison and Mr. Arthur did not deserve to be treated in the way he acted towards them. Further, the Union notes that the January 2021 letter from the John Howard Society confirming the Grievor’s attendance for anger management counselling provides evidence that the Grievor is committed to change and has insight into correcting his former behaviour. [32] Even if I were to find that the suspensions and termination were justified, the Union urges that I find the Grievor’s behaviour to be non-culpable or alternatively that I consider the evidence about the Grievor’s mental health status and his issues with anger and impulsivity to be mitigating factors. From the Union’s perspective, it submits that it should have been patently obvious to the Employer that the Grievor displayed anger issues stemming from frustration. The Union notes that the Grievor was candid about how he has suffered from depression and anxiety since the car accident in 1991, stating these conditions do not disappear and how he continues to deal with issues every day. Looking at the Employer’s witnesses’ testimony, the Union states that Mr. Groke knew that the Grievor displayed impulsive behaviour and Ms. Farrugia said that she knew that the Grievor could be unstable at times. Moreover, the Union argues that the Employer had a duty to inquire about a disability once the Grievor mentioned that he had mental health issues documented in the investigation notes taken during the allegation meeting on August 23, 2018, and that the failure to make inquiries violates an Employer’s duty to accommodate disability under the Ontario Human Rights Code, R.S.O. 1990 (the “Code”). The Union relies on the case Lafrenière v. Via Rail Canada Inc., 2019 CHRT 16 (CanLII) in support of its position. [33] The Union asks me to give weight to medical documentation from 2011 which confirms a diagnosis of major depressive disorder and substance abuse and the medical note from the Grievor’s family doctor in 2020 noting a history of depression. Further, while the letter from Ms. Barak is not a medical diagnosis, the Union submits that her observations and explanation of the Grievor’s behaviours should be considered as proof that the Grievor deals with mental health challenges. In addition, the Union suggests that there were “flags” about the Grievor’s mental health and impulsivity from suggestions by various managers that the Grievor take a cool down period when he became angry about an issue and suggestions in attendance meetings and in the various suspension letters that he consider seeking assistance from the EFAP. In support of applying these mitigating circumstances, the Union refers to two arbitration cases where grievors were given an opportunity to seek anger management training, balancing the notion of deterrence instead of a - 17 - corrective approach: Kingston (City) v Canadian Union of Public Employees, Local 109, 2011 CanLII 50313, (Newman) and IBEW Local 636 v Niagara Peninsula Energy Inc,2012, 217 L.A.C. (4th) 307 (Arbitrator Dissanayake). Decision [34] The following factors for reviewing a termination of employment are outlined the Wm Scott & Co, supra as follows: (i) How serious is the immediate offence of the employee which precipitated the discharge? (ii) Was the employee's conduct premeditated, or repetitive; or instead, was it a momentary and emotional aberration? (iii) Does the employee have a record of long service with the employer in which he proved an able worker and enjoyed a relatively free disciplinary history? (iv) Has the employer attempted earlier and more moderate forms of corrective discipline of this employee which did not prove successful in solving the problem? (v) Is the discharge of this individual employee in accord with the consistent policies of the employer or does it appear to single out this person for arbitrary and harsh treatment. [35] Leading up to his termination of employment, the Grievor was disciplined four times, between 2015 to 2018 for repetitive conduct that was of similar nature including uttering disrespectful, inappropriate, and offensive comments to co-workers in violation of the Employer’s Respectful Workplace Policies. The Union does not dispute that the Grievor engaged in all of the conduct forming the basis of each suspension and that he did not express remorse for his actions or offer an apology at the relevant time of each disciplinary matter. Similarly, there is no dispute that the Grievor admitted to all but one of the allegations that led to his discharge and that while he recognized that his behaviour was not appropriate, he did not express remorse in the investigation meeting of August 23, 2018. In light of such admissions, it is necessary to determine if any of the discipline and ultimate termination should be substituted with a lesser penalty or reversed when viewed in the context of possible mitigating circumstances. [36] Reviewing all of the evidence, I do not find that the Union has established that the Grievor’s conduct leading to the discipline in this case should be viewed as non- culpable due to mental health issues. Although the Grievor testified about his on- going mental health challenges and Mr. Hohman gave his opinions regarding possible PTSD, there was no medical evidence presented to support a nexus between a disability and the Grievor’s conduct. While medical documentation was provided in 2011 and 2013 to support the Grievor’s leave for major depressive disorder and substance abuse treatment and his relapse, the other medical evidence introduced included generic medical notes supporting various absences taken after 2013 by the Grievor. The note from June 3, 2020 by the Grievor’s family doctor only referred to the fact that the Grievor has a history of depression but had not been treated for mental health since being a patient in her practice. In addition, Ms. - 18 - Barak’s 2020 letter qualifies that her observation and assessment of the Grievor is not a medical diagnosis. In light of the fact that the Union did not call any medical professionals to testify about the Grievor’s mental health or to testify about a nexus between a medical diagnosis and the Grievor’s conduct, I cannot give much weight to the letters produced from either Dr. Thompson or Ms. Barak. The evidence produced in this case does not meet the test of medical evidence required to support a conclusion that the Grievor’s wrongdoing is attributable to illness as outlined Canada Safeway, supra. As noted in that case, there must be evidence of an illness or condition, usually supported by expert evidence of a doctor or psychologist/counsellors including evidence that establishes a linkage or nexus between the medical diagnosis and the conduct. Once a link is established, an arbitrator is required to examine evidence to determine if the medical condition link is sufficient to reduce or displace culpability. Although I am not questioning the Grievor’s testimony and the medical documentation provided that he suffers from depression and associated symptoms, there is no evidence before me to establish a link to his conduct or to render his conduct non-culpable. [36] I also find that the Employer did not have a duty to inquire about a disability pursuant to the Code prior to its decision to terminate the Grievor’s employment. While the Grievor stated that he mentioned his mental health in the investigation meetings related to the three- and ten-day suspensions, the evidence does not support his recollection. None of the Employer witnesses testified that there was mention of mental health during these meetings and the meeting notes and letter of suspensions do not have any reference to mental health concerns. Ms. Taylor, for example, had no indication from the Grievor’s investigation interviews that he was struggling with his mental health. Similarly, Ms. Farrugia, while agreeing that suggestions were made to the Grievor such as taking a cool down period when he was frustrated or angry and reminding him of the availability of EFAP, she too did not recall a discussion with him about struggles with mental health. Although Mr. Hohman testified that during a February 9, 2018 attendance management meeting, he referred to the Grievor struggling with PTSD and was in the process of finding a new doctor, in cross-examination he admitted that it was hard to distinguish whether the notes he made were based on the meeting discussions or his private caucus with the Grievor. He also clarified that his reference to the Grievor having PTSD was based on what the Grievor had told him and Mr. Hohman’s own assessment. Mr. Hohman also admitted that he assumed that the Employer was aware of the Grievor’s mental health issues because the Grievor told him that everyone knew of his issues but that he had never asked the Grievor if the Employer knew about his mental health challenges. While it may have seemed obvious to Mr. Hohman, based on his experience as an Equity Steward, that the Grievor displayed behaviour that could be linked to mental health struggles, I cannot conclude that the evidence overall showed that the Employer was aware of the Grievor’s mental health issues during the period of time covering the two suspensions and termination before me. [37] The circumstances in this case are distinguishable from the facts in Lafrenière v. Via Rail Canada Inc, supra, in which a discharge of employment was not upheld because it was concluded that the Employer had a duty to inquire about disability and - 19 - accommodation. In that case the evidence showed that the employee’s behaviour dramatically changed over the course of a short period after 11 years of an unblemished record. Furthermore, it was found that the Employer, though not having medical documentation or disclosure from the employee, was aware that the employee had prior mental health issues, that he had taken a recent medical leave and had a current memo from the employee’s supervisor that noted the employee may have mental health problems (at paragraph 142). In contrast, in this case, other than the Grievor stating that he has enough mental health issues in the August 23, 2018 meeting, his conduct that was reviewed in that meeting was not dramatically different than past behaviour for which he had been disciplined between 2015 and 2018. Although the Grievor had taken it upon himself to attend some counselling sessions with Ms. Barak starting in April 2018, he made no mention of this to management. Likewise, Mr. Hohman, who had experience dealing with bargaining unit members needing accommodation, including accommodation for disabilities associated with mental health, he testified that he did not bring any mental health considerations to the Employer’s attention during or following the August 23, 2018 investigation meeting, even though he knew how serious the consequences were for the Grievor. While Ms. Grove was aware of the Grievor’s past mental health status in 2011 and 2013, she testified that there was no new medical information brought to the Employer’s attention, even as late as the final investigation meeting on August 23, 2018 that would have raised a need to consider making an inquiry regarding disability and accommodation for the Grievor. As a result, I find that there were not sufficient circumstances to trigger a duty to make a Code inquiry. [38] I find that the Employer’s decision to impose the three-day suspension on June 28, 2017 was reasonable. Although the Grievor admitted to his conduct, at the time of his discipline, he was not remorseful and was defensive about his behaviour justifying his actions because of his frustration with Ms. Allison not pulling her weight at work. While the Grievor tried to defend his views as upholding good work ethic, his actions towards Ms. Allison were not warranted and would have reasonably been known to be unwelcome. This was also not the first time that the Grievor engaged in this type of unwelcome behaviour, as noted in the prior discipline he received in April 2016 and December 2015. Both of these earlier suspensions were within the three- year sunset period, were not grieved and clearly set out expectations and guidance for how the Grievor was expected to conduct himself at work. [39] I also find the Employer had reasonable grounds to impose the ten-day suspension on March 14, 2018. I do accept that the Grievor was frustrated about Mr. Arthur not wanting to engage with him. I also believe that the Grievor was upset that his friendship with Mr. Arthur had deteriorated. Nevertheless, his personal issues about Mr. Arthur do not excuse the behaviour that was patently discriminatory, namely that the Grievor made various comments in the presence of co-workers trying to shame Mr. Arthur, as the Union President, for being an accommodated employee. Comments made by the Grievor questioning Mr. Arthur playing hockey while on accommodation amplified the discriminatory behaviour because they questioned the validity of Mr. Arthur’s disability and pried into his private medical information. While the Grievor tried to explain in his testimony that he was using the accommodation - 20 - issue as a way to engage Mr. Arthur and that he had nothing against people who are accommodated at work, neither explanation takes away from the discriminatory conduct. Intent is not a factor in determining if behaviour is discriminatory, rather the determining factors relate to the impact on the individual who is the target of discriminatory conduct or comments. [40] What was clear from evidence was that the Grievor was frustrated with people on accommodation getting assigned jobs not in line with seniority and that the issue of job assignment and accommodation created tension in the workplace. Even Mr. Hohman testified about this being an issue that the Union continuously dealt with in conjunction with the Employer. However, even if the Grievor did not understand or agree with the accommodation process, his viewpoint and frustration could not have been seen as justification for his behaviour on February 6, 2018 towards Mr. Arthur. Furthermore, the Grievor had accessed accommodation in 2016 for a shoulder injury, so was familiar with how the accommodation process worked and must have known that an employee’s medical information is confidential. [41] Finally, I have also concluded that the Employer had cause to terminate the Grievor’s employment on September 4, 2018. Applying the factors for reviewing a termination of employment, as listed in Wm Scott & Co, supra, the Grievor’s conduct and tone toward Mr. Arthur on May 14, June 18 and August 21, 2018 essentially repeated the type of harassing behaviour that resulted in his March 14, 2018 ten-day suspension and final warning. On their own, each instance of behaviour, such as shrugging a shoulder in an exaggerated stretch, laughing at Mr. Arthur, or yelling “my shoulder, my shoulder” at Mr. Arthur, may not seem serious. However, the comments in totality are serious and must be viewed in the context of the Grievor’s prior discipline for making objectional comments to other employees and for his violation of the Employer’s human rights policies, only 5 months prior, by making disparaging public remarks to Mr. Arthur about a protected ground under the Code. The Grievor was clearly told in the March 14, 2018 ten-day suspension letter that his conduct on February 6, 2018 was unwelcome and it constituted discrimination of an accommodated co-worker. In addition, the language of the suspension is clear and straightforward, that despite citing grounds to terminate the Grievor for such serious misconduct in March 2018, the Employer decided to give him a last chance to change his behaviour and meet expectations. Despite this warning, the Grievor persisted in harassing Mr. Arthur, starting again in June 2018, to the point where Mr. Arthur reached out to management on August 21, 2018 expressing real concern about his safety due to the Grievor’s escalating behaviour. [42] I am further satisfied that the Employer also considered the Grievor’s l7 years of service and his age as a mitigating factor but weighed these factors in light of the Grievor’s most recent disciplinary record of having four suspensions within a three- year period related to similar conduct and even more serious conduct of engaging in harassing behaviour that was discriminatory in violation of its policies, and for which there is zero tolerance. In this regard, I am satisfied that the Employer had attempted prior, more moderate forms of corrective discipline, in accordance with its policies, which proved unsuccessful in stopping the Grievor’s behaviour. In terms of - 21 - providing coaching and training on human rights and accommodation, I prefer the evidence of the Employer’s witnesses that the Grievor, like all employees, as late as June 7, 2018 received annual training on human rights issues and the Employer’s respectful workplace policies. Although Ms. Farrugia could not recall the specific details of the June 7, 2018 refresher training, it is reasonable to assume that all employees would have been provided with an overview of respectful workplace behaviour including intolerance for harassing unwelcome behaviour whether it is a form of bullying in contravention of The Occupational Health and Safety Act or unwelcome comments in contravention of the Code. In addition, I am not convinced by the Grievor’s testimony that the accommodation process was not reviewed with him. Not only had Mr. MacPhearson reviewed the accommodation process and rules with the Grievor in the February 2018 investigation meeting, but Mr. Hohman also confirmed that the accommodation process was discussed in that meeting. Mr. Hohman also talked about how he had spoken with the Grievor about the accommodation process. Furthermore, while the Grievor denied that he and Mr. Groke had discussions regarding coaching and accommodation issues, I am not convinced that the Grievor’s recollection was accurate. Although Mr. Groke did not have specific notes about his numerous discussions with the Grievor, it seems reasonable to infer given other testimony about the Grievor being coached on cool down strategies, that they had various conversations regarding the Grievor’s behaviour, opinions, and frustrations with the accommodation process. As evidence of an example of a conversation between the two occurring I have also relied on the undisputed exchange between the Grievor, and Mr. Groke referred to in paragraph 7 of this decision in which the Grievor admitted that he was not happy about their discussion regarding the assignment of accommodated personnel. [43] The circumstance of this case is distinguishable from OPSEU (Hamilton) v. MCSCS, 2019, GSB# 2018-146 (Misra), submitted by the Union, in which a two-day suspension for behaving in an inappropriate and unacceptable manner towards a supervisor was reduced. In that case, the grievor admitting to swearing, but claimed it was not directed at his supervisor and did not show remorse for his actions. The Arbitrator reduced the suspension to one day because the grievor had no discipline on his record and she found that the grievor did not swear directly at the supervisor. These are very different circumstances than the instant case, where there is a long history of discipline and admission of comments and actions directed towards others. [44] Although I am respectful of the Grievor’s testimony that he now regrets and is remorseful for his previous conduct, I am not persuaded, in light of the totality of circumstances, that I should change the termination decision. His evidence about attending anger management sessions in 2021 with the John Howard Society shows a positive step but done too late in the circumstances. While the Union submitted cases where terminations were upheld in circumstances where an employee showed no remorse for conduct, such as OPSEU (Sandborn) v LCBO, 2020, GSB #2018- 1512 (Fisher) and Kingston (City) v Canadian Union of Public Employees, Local 109, 2011 CanLII 50313, (Newman), each case must be determined on its own facts. Having listened to the Grievor’s testimony, I am not convinced that he appreciates the impact of his comments and actions or that he would not repeat the same type of - 22 - behaviour again if reinstated. The fact that the Grievor was honest about engaging in almost all of the behaviour is not representative of either an apology or remorse. Although he admits now that he knows that it is none of his business about an individual’s accommodation and job assignment or that his behaviour towards Ms. Allison was unacceptable, he continued to deflect blame for his actions on his frustration with the “process’’, whether it was the issue of how accommodated employees were assigned work or the process of how workload is assigned. There were also comments sprinkled throughout his testimony that were troubling and showed signs of his continued frustrations with the Employer, like when the Grievor stated “they are more concerned with getting product out the door than assisting me”, or that “he seeks the truth and that no one does anything until someone gets upset”. My observations are also supported by Mr. Groke’s testimony that returning the Grievor to the workplace would have a negative impact and that his behaviour would not change without help. While Mr. Groke commented that, if the Grievor behaved appropriately Mr. Arthur could come to terms with the Grievor, his comment has to be viewed in the context of his qualification requiring appropriate conduct. [45] In addition, the Grievor’s apology and regret during the hearing have come too late given that he was given ample opportunity to change his behaviour, was given a last chance in March 2018 when he received a final warning in the ten-day suspension letter and had the chance to reflect on his behaviour when he attended the August 23, 2018 investigation meeting. I am also mindful about interfering with the Employer’s termination decision given the Grievor’s final warning and that the culminating incidents were of the exact nature involving discriminatory comments and actions against an accommodated worker. As stated at page 87 in Teck Metals Ltd., supra, “Where an employee has already been given a second or last chance, it would not be reasonable, in my view, for an arbitrator to give him another second or last chance in the face of further disciplinable conduct. I refer to my decision in MacMillan Bloedel Ltd. (Elk River Division), Award dated June 28, 1991, 24 CLAS433 and the comment that: "in my view, it would not be appropriate now to give the grievor a further second chance when he has already been given one and has not lived up to the conditions upon which it was imposed, conditions which he agreed were fair. Such a response now would be inconsistent with the whole concept of progressive and corrective discipline." [45] For all of the above-noted reasons, the grievances are dismissed. Dated at Toronto, Ontario this 3rd day of May, 2021. “Dale Hewat” ________________________ Dale Hewat, Arbitrator