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HomeMy WebLinkAbout2017-3672.Mohamed.21-11-05 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2017-3672 UNION# 2018-0526-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Mohamed) Union - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Esther Song Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Regina Wong Treasury Board Secretariat Counsel HEARING DATES October 11, December 16 and 20, 2019, November 24, 2020, February 5 and 12, 2021. -2- DECISION [1] In his grievance dated February 5, 2018, Mr. Abdul Mohamed alleges that the Employer breached article 3 of the Collective Agreement, the no discrimination and employment equity provision. As noted on the grievance, Mr. Mohamed’s desired settlement for his stressful situation is to be paid out in a package deal and an amount in damages. The Union’s position in this proceeding is that Mr. Mohamed had been bullied, harassed and discriminated against on the basis of race by his manager. To compensate him for what is alleged to be serious harm, Mr. Mohamed is requesting that the Employer pay him full pay and benefits until his retirement at 65 years of age. He also seeks $5 million in damages for the Employer’s breach of the Collective Agreement and the Ontario Human Rights Code (“OHRC”). Counsel for the Union indicated that if I determine $5 million in damages to be excessive, the Union requested that I award Mr. Mohamed $40,000.00 as damages. The Employer takes the position that there is no evidence to support the allegations made by Mr. Mohamed and the Union and that I should dismiss the grievance. Employer counsel submitted that the Board has no jurisdiction to make a monetary award to Mr. Mohamed for events that are compensable under the Workplace Safety and Insurance Act. In the alternative, counsel submitted that if I found that there had been a breach of the Collective Agreement and the OHRC, that an award of no more than $500.00 in damages would be justified. [2] At the outset of this proceeding, the Union indicated that it would be relying on six events in support of its allegations. The first event occurred in 2009 and the second event occurred in 2012. Mr. Mohamed’s manager at the time of these two events was Mr. M. Fernandes. The Employer took the position that the Union should not be permitted to rely on these events since they were very dated and unrelated to the subsequent events that involved a different manager. In a decision dated September 17, 2019, I allowed the Employer’s motion and determined that the Union would not be permitted to call evidence about the 2009 and 2012 events. The Union was then left with the four remaining events to establish its allegations. These events occurred -3- between July of 2017 and January of 2018, when Mr. Mohamed’s manager was Ms. D. Charalambous. In chronological order, the events can be described as the uniform event, the phone call event, the key event and the lunch event. [3] Three witnesses were called to testify about the relevant events. The Union called Mr. Mohamed as its sole witness. Mr. Mohamed has been employed by the Ministry since 1991 and has been a part-time Court Services Officer (“CSO”) since 1999. As an FXT employee, Mr. Mohamed’s pay is based on a minimum 1500 hours per year and 60 hours bi-weekly. Although his status is part-time, Mr. Mohamed indicated that he basically works full time hours during a 5-day work week. Mr. Mohamed is a racialized man and at the time of final argument he was 57 years of age. The Employer called Ms. Charalambous to testify, as well as Ms. D. Dykstra. Ms. Charalambous assumed her position as Supervisor of Court Operations, Civil Court, on May 15, 2017. Her role included the supervision of CSOs. Ms. Charalambous left the Supervisor position on April 23, 2018. Ms. Dykstra was called to give evidence about the lunch event. She holds the position of Supervisor of Court Operation in the Enforcement and Finances, Writs & Assessment office. The central witnesses in this proceeding of course were Mr. Mohamed and Ms. Charalambous. In determining the facts, I have taken the time to carefully review the oral and documentary evidence, as well as the submissions that were made in relation to that evidence. [4] I find it unnecessary to set out a detailed description of the final submissions of counsel. Union counsel submitted that Mr. Mohamed was a reliable and credible witness and that I should favour his version of the events where there were conflicts in the evidence. Counsel used various terms to describe Ms. Charalambous’s conduct in relation to the events at issue. In addition to describing her conduct as bullying, harassing and discriminatory, counsel also used terms such as intimidating, inappropriate, humiliating and abusive in the exercise of her managerial authority. Counsel argued that Mr. Mohamed was treated differently because of race and noted that Ms. Charalambous was well aware that Mr. Mohamed would find her inappropriate conduct unwelcome. Counsel submitted that this type of conduct caused Mr. Mohamed mental distress, negatively affected his confidence and made -4- him fearful of his manager to the extent that he thought he could lose his job. In support of her submissions, counsel relied on the following decisions: Toronto Transit Commission v. A.T.U, 2004 CarswellOnt 5165 (ON ARB) (Shime); Children’s Hospital of Eastern Ontario v. OPSEU, 2015 CanLII 58045 (ON ARB) (Parmar); and, Lane v. ADGA Group Consultants Inc., 2008 CarswellOnt 4677 (Div. Ct). [5] Employer counsel submitted that I should prefer the testimony of Ms. Charalambous where there were any significant conflicts between her testimony and the testimony of Mr. Mohamed. She submitted that Mr. Mohamed’s testimony was not credible on some matters, inconsistent at times and generally unreliable. Counsel also submitted that Ms. Charalambous acted in good faith during the relevant events and that she acted reasonably when exercising her managerial responsibilities. Counsel argued that the Union did not make out a prima facie case for the claim that Mr. Mohamed was treated in a discriminatory way because of his race. She also submitted that the Union had not met its onus to establish on the basis of objective evidence that Mr. Mohamed had been bullied and harassed by Ms. Charalambous. Counsel requested, given the nature of all of the evidence that I make a clear finding and statement that Ms. Charalambous did not bully, harass or discriminate against Mr. Mohamed. Employer counsel relied on the following decisions: Ontario (Ministry of Finance) v. OPSEU (Fortin), 2017 CarswellOnt 21771 (ON GSB) (Luborsky); Ontario (Workplace Safety and Insurance Board) v. CUPE, Local 1750 (Carito), 2014 CanLII 30248 (ON GSB) (R. Brown); Ontario (Ministry of Labour) v. OPSEU (Waraich), 2009 CanLII 15421 (ON GSB) (Watters); OPSEU (Asztemborski et al.) and Ontario (Treasury Board Secretariat), (2007) GSB File No. 2014-4402 (Briggs); Ontario (Ministry of Transportation) v. OPSEU (Brydges et al.), 2014 CanLII 74778 (ON GSB) (Dissanayake); Shaw v. Phipps, 2012 ONCA 155; Ontario (Ministry of Community Safety and Correctional Services) v. OPSEU (Bonneveld), 2013 CarswellOnt 18171 (ON GSB) (Briggs); Arnout v. LUSO Community Services, 2020 HRTO 383; Farnya v. Chorny, 1951 CarswellBC 133 (BCCA); Calgary (City) v. CUPE, Local 38 (Jina), 2014 CarswellAlta 583 (ALB ARB) (J. Casey); North Simcoe Hospital Alliance v. OPSEU (Jeannotte), 2004 CarswellOnt 10598 (ON ARB) (MacDowell); and, OPSEU -5- (Foley et al.) and Ontario (Ministry of Community Safety and Correctional Services), (2018) GSB File No. 2015-3339 et al. (Williamson). [6] There is no dispute about the legal principles that apply in this case. I adopt the principles and tests that are referred to in the following decisions. With respect to an allegation of discriminatory treatment, Arbitrator Dissanayake in Ontario (Ministry of Transportation) v. OPSEU (Brydges et al), supra, set out an excerpt in Moore v. British Columbia (Education), (2012) 351 D.L.R. (4th) 451 (S.C.C.) in which Abella J. described the requirements to be met to establish prima facie discrimination as follows: As the Tribunal properly recognized, to demonstrate prima facie discrimination, applicants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur. [7] In Ontario (Ministry of Finance) v. OPSEU (Fortin), Arbitrator Luborsky had before him allegations of bullying and harassment made by an employee against certain managers. In this decision, he provides a thoughtful analysis of the considerations and tests that are relevant when addressing a workplace harassment complaint. The following features of the decision are worth noting, beginning with his consideration of what the words bullying and harassment mean. 161 Article 3.3 of the collective agreement provides that the parties: “are committed to a workplace free from workplace harassment, including bullying, by other employees, supervisors, managers, and any other person working or providing services to the Employer in the workplace, clients or the public, in accordance with the law.” The term “workplace harassment” is defined in that article as “a course of vexatious comment or conduct against an employee in the workplace that is known or ought reasonably known to be unwelcome”, which is substantially the same as the statutory definitions of employment or workplace harassment in sections 10(1) of the Code and 1(1) of the OHSA. 162 The word “vexatious” is defined in The New Shorter Oxford Dictionary -6- (Claredon Press, Oxford: 1993) as “causing or tending to cause annoyance, frustration, or worry” and in law it denotes, “an action or the bringer of an action that is brought without sufficient grounds for winning, purely to cause annoyance to the defendant”. Applied in the context of labour relations, “vexatious comment or conduct against an employee in the workplace” by a supervisor or person in authority as that phrase appears in article 3.3 of the parties’ collective agreement, refers to words or actions without sufficient grounds or bona fides purposes other than to cause annoyance, frustration and/or worry to an employee, constituting a form of bad faith. This must be distinguished from the words or actions of a supervisor, which the supervisor reasonably knows is unwelcome by the employee, but is nevertheless part of the legitimate exercise of the supervisor’s right to manage the enterprise in the good faith application of the power expressly conferred under article 2 of the collective agreement (and any residual prerogatives), “to manage the business and direct the workforce”, which is not “vexatious” in itself. 163 The word “bullying” describes a spectrum of conduct related to the improper use of power that one person has over another, “to coerce or intimidate weaker persons” (per The New Shorter Oxford Dictionary, supra). In the Board’s opinion, “bullying” is a form of an “abuse of power” in the workplace, which includes conduct by a person in a relative position of authority against an employee that a reasonable person would find hostile or offensive causing or having the potential to cause physical or psychological harm or adverse employment consequences to the employee, such as: (a) repeated infliction of verbal invective or maltreatment in the form of derogatory remarks, foul language and/or insults; (b) verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating, including yelling and physical displays of aggression and/or any form of violence; (c) deliberate sabotage or undermining of an employee’s work performance; (d) whether as part of a pattern of repeated misconduct or even where it occurs on a single occasion that is especially severe. … 165 The foregoing concepts and the appropriate evidentiary tests for determining whether harassment or bullying has occurred in the workplace have been considered by arbitrators and adjudicators in a variety of employment contexts. For example, in Toronto Transit Commission v. A.T.U., Arbitrator Shime defines “abusive conduct” and “harassment” as follows at paras. 248-9: 248 Abusive conduct includes physical or mental maltreatment and the improper use of power. It also includes a departure from reasonable conduct. -7- 249 Harassment includes words, gestures and actions which tend to annoy, harm, abuse, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands, or other unpleasantness. A single act, which has a harmful effect, may also constitute harassment. [8] Arbitrator Luborsky then proceeded to provide further examples of the tests that arbitrators have adopted when evaluating allegations of harassment and abusive conduct. I will set out excerpts from some of the decisions he referred to. In Nunavut v. P.S.A.C., 2006 CarswellNat 4671 (CAN ARB) (Knopf), the arbitrator wrote as follows: 33 An allegation of harassment is a serious matter. It cannot be taken lightly, and the onus of proof lies with the Union. A finding of harassment can only be made if there is objective evidence to support its claim. The fact that [the grievor] honestly felt that she was being harassed, and the fact that she suffered greatly, is not enough to make this claim succeed. Nor can it succeed if the evidence showed that the harassment came solely from the community. The grievance is against the Employer. This grievance can only succeed if the objective evidence supports a finding that there has been abusive conduct as a result of improper use of power or a departure from reasonable norm… [9] In Fanshawe College of Applied Arts and Technology v. OPSEU (Read), 2016 CarswellOnt 6614 (ON ARB) (Bendel), the arbitrator commented as follows: In my view, a prerequisite for a finding of harassment is that the conduct about which the complaint is made be “a departure from reasonable conduct”. This was the conclusion of arbitrator Luborsky in Re Cara Operations, supra, drawing on language used by arbitrator Shime in Re Toronto Transit Commission, supra. An employee that complains about behaviour that is within the realm of reasonable conduct will be unable to satisfy an arbitrator that there has been harassment, regardless of the effect that behaviour might have had on the employee. I should add that it seems obvious to me that a decision on the reasonableness of the impugned conduct has to take account of the particular work situation… [10] The following background facts will serve to provide some context for the four events relied on by the Union. The relevant Civil Court Support Staff office is located at 393 University Avenue in downtown Toronto. Ms. Charalambous worked out of this office, as did the Supervisor for Court Registrars, Mr. Sheldon Weekes. Ms. -8- Charalambous’s manager at the time was Mr. Michael Delario. There are approximately 30-40 CSOs that would have reported to Ms. Charalambous. The CSO job description describes the purpose of the CSO position as follows: “To act as a Court Services Officer by providing support to presiding judiciary; maintaining court decorum; and directing stakeholders, clients, jurors and members of the public. To provide support to the overall supervision of the court.” The various duties listed in the job description include ensuring courtroom and jury room readiness, unlocking the courtroom prior to court starting and locking the courtroom at the end of each session, assisting the judiciary as required for court, assisting with jury panel and all jury related duties, completing administrative duties that contribute to the progress of cases in the court system from beginning to conclusion, etc. A CSO could be scheduled to work at any of the civil courtrooms located at 330, 361 and 393 University Avenue and at Osgoode Hall. I will hereinafter refer to the court building by the number in the address, without referring to the street name. It would not be uncommon for CSOs to be moving between these locations. Mr. Mohamed was often scheduled to work at the Commercial Court located at 330. Given that a CSO’s duties are performed within a courtroom environment, the workday of a CSO is dictated by when the court is sitting and the needs of the judge. A CSO has a lot of independence with not much direct supervision by a manager. Given his service and experience in the CSO position and the nature of his work, Ms. Charalambous might not see Mr. Mohamed for many weeks, even though she would typically go to all court buildings to see how see how the courts were operating. [11] Ms. Charalambous made arrangements for what can be described as social events for employees. She did this for team building and to build morale. Some employees participated in these events while others chose not to. Mr. Mohamed made it clear to Ms. Charalambous that he had no interest in participating in such events. Ms. Charalambous also had what she characterized as an open door policy. CSOs would come into her office to discuss work issues and it was not uncommon for them to also discuss personal issues with her. Ms. Charalambous testified that Mr. Mohamed came to her office a few days before the phone call event and initiated a personal discussion with her about his family issues. Without detailing all of this -9- conversation, Mr. Mohamed told her that he lived in Regent Park and that he was concerned for his sons. He became upset during this discussion and was crying at times. [12] The Employer provides each of the CSOs with a uniform. The uniform consists of a blue blazer, grey dress pants, a white buttoned dress shirt and a clip on tie. The process for getting a replacement uniform changed in about July of 2017. An employee under the former process would obtain a letter from the manager and go to Moore’s Clothing (“Moore’s”) to get the uniform. Any required measurements would be taken by an employee at Moore’s and the necessary alterations made. Moore’s would then invoice the Employer. The Employer decided to obtain uniforms from Wallace Workwear instead of Moore’s to save costs and because the new vendor offered a female version. Under the new process, a Request of Uniform form is completed with the necessary measurements and sent to the new vendor. The vendor provided sizing sets to the Employer and provided the necessary training to the Supervisors to assist employees in selecting a uniform that would fit properly. The sizing sets were located on a rack in a former jury room located about 20 to 30 feet from the Civil Court Support Staff office. The room had a large window, a table and chair, and there was an accessible washroom nearby. The employee would be notified when the replacement uniform sent by the new vendor arrived at the office. The new process for obtaining a replacement uniform was communicated to employees at a staff meeting on July 5, 2017, and the minutes of the meeting were sent to each employee by email on July 10, 2017. The minutes of the meeting advised staff to see Ms. Charalambous for further information. The expectation is that employees are to read the minutes of meetings so that they are aware of what is expected of them. [13] The Employer also advised employees at the staff meeting on July 5, 2017, that a new KEYper Management system was being introduced. The new system was a new tool to better manage and maintain keys in circulation. Management discovered that staff at 330 was gaining entry to rooms to eat their lunch and for other inappropriate reasons. Management was aware that about five individuals had a -10- master key which gave them access to all rooms. As part of its desire to better control access to rooms at 330, management was trying to get the master keys back. During a team huddle on November 16, 2017, Ms. Charalambous raised the issue of keys for 330. The minutes of the team huddle provide as follows: “Keys for 330 - Staff were requested to check their keys and identify which key they currently had. The staff key for 330 is AA1. Should you have another key for 330, please return it to Dora immediately.” These minutes were also sent to all staff by email. Mr. Mohamed was one of the CSOs who had a master key. [14] CSOs are entitled to a 30-minute unpaid lunch period. There is no set time for taking a lunch break and a CSO has considerable discretion in that regard. The timing of a lunch break will be determined by how long the court sits and the needs of the judge. To a certain degree, management does monitor lunch breaks to ensure that court staff receive a lunch break and for payroll purposes. An employee will record their hours, including when a lunch break is taken on the Court Time Reporting System (“CTRS”). [15] As I noted previously, I have carefully reviewed the oral and documentary evidence relating to the four events in issue. There were many conflicts in the testimony given by Mr. Mohamed and the testimony of Ms. Charalambous. In resolving these conflicts, I have applied the usual tests including making an assessment of what is most probable having regard to all of the reliable evidence. As will become evident, in most instances where there was a conflict of significance, I preferred the testimony of Ms. Charlambous. I found Mr. Mohamed’s testimony at times to be inconsistent, to be unreliable on certain matters and not to be credible in some instances. I found Ms. Charalambous’ testimony to be reliable. Her description of the relevant events was the most probable version of what had occurred having regard to the totality of all of the evidence. [16] I now turn to setting out my conclusions as to what had occurred during the four events which form the basis of the Union’s allegations. Even though there was a fair amount of evidence on each of the events, each event took place over a relatively brief period of time and therefore can be described concisely. After describing what -11- occurred at each event, I will refer to the central features of Mr. Mohamed’s version of the event, his perspective of the event and why I did not prefer his version. I will deal with the events in chronological order, starting with the uniform event. [17] On July 10, 2017, five days after the new process for obtaining a replacement uniform was announced, Mr. Mohamed approached Ms. Charalambous when she was in her office and told her that he wanted a uniform. Since the new process had just been initiated, Ms. Charalambous explained the new process, including the new Request of Uniform form and the availability of the sizing sets in a nearby room. When Mr. Mohamed commented that the Employer no longer used Moore’s to supply uniforms, Ms. Charalambous confirmed that they were using a new vendor. Ms. Charalambous assisted Mr. Mohamed with the new uniform process. They entered the former jury room where the sizing sets were kept on a rack. The main door into the room was always open while they were inside. Mr. Mohamed selected the size of uniform and went into the washroom to try it on to make sure it fit. When he came out of the washroom, it was clear the length of the pants needed alteration. Ms. Charalambous asked if he knew the length of his outseam and he said he did not. She offered to assist him in getting the necessary measurement and he agreed. She gave Mr. Mohamed the tape measure and told him to hold it at the top of his hip on his side while she looked at the number between his ankle and the bottom of his foot. This is the way she had been trained by the vendor to measure the outseam. Ms. Charalmbous did not touch Mr. Mohamed in any way when they were in the room and she did not place the measuring tape around his waist or on the inside of his legs to measure the inseam. At the end of the process, Ms. Charalambous filled out the Request of Uniform form for Mr. Mohamed. The numbers she placed on the form relating to the pants came from the uniform set Mr. Mohamed had selected and the outseam measurement. The only thing Mr. Mohamed did with respect to the form was to sign it once it had been filled in by Ms. Charalambous. The assistance Ms. Charalambous provided to Mr. Mohamed was no different from the way in which she would assist others employees who needed help. At no time did Mr. Mohamed indicate that he was uncomfortable with what she was doing, nor did he object to the -12- way she was assisting him. Mr. Mohamed never advised Ms. Charalambous that the pants he had received from the vendor did not fit properly. [18] The essential features of Mr. Mohamed testimony about the uniform event are as follows. He did not recall receiving the information the Employer had sent out about a new process for getting a uniform. Ms. Charalambous called him and told him that he needed to get a uniform. He then went to the Civil Court Support Staff office and Ms. Charalambous told him that she would take his measurements. He resisted and told her how he had obtained a uniform at Moore’s in the past. She told him that this is how it is being done now. He gave her his measurements before they went to the former jury room. She gave him pants and just told him to put them on. He did not expect this to happen. Once he had changed, she measured him as she sat in a chair and he stood in front of her. She measured his waist first and then she measured the length of the pants from the outside of his leg. She then told him to open his legs. He resisted and told her that measuring the waist and the outside of the leg was enough and that this was improper and told her not to do this. Ms. Charalambous said that this was the way to do it and he was to just do what she wanted. She then placed the tape measure on the inside of his legs and measured from the crotch down. She had the tape measure at all times. After she took the measurements he went to the washroom and changed back into his uniform. He did sign the form, but did not believe the numbers on the form were there at the time he signed it because they are incorrect. He stated that when he received the uniform pants they did not fit and he informed Ms. Charalambous about this. [19] Mr. Mohamed was asked during examination-in-chief about how he felt when asked to change so that the pants could be measured. He indicated that he felt terrible and intimidated and he started crying on the witness stand, which necessitated a break in the hearing. When the hearing resumed Mr. Mohamed continued by saying that he was really embarrassed and felt a lot of fear. He noted that as a Muslim it was shocking that he would be asked to take off his clothes and that this affected his dignity. After she measured between his legs, he felt like he did not have anything inside himself and felt like a useless person. He stated in general that he felt the -13- experience was improper, intimidating and harassing. Mr. Mohamed agreed that he did not complain to anyone about what had occurred during the uniform event before he filed his grievance. [20] The new process for obtaining a replacement uniform simply required an employee to fill in the Request of Uniform form containing their measurements. If Mr. Mohamed had provided Ms. Charalambous with his measurements at the outset, as he claims, it would have been unnecessary for her to spend any time assisting him in selecting a uniform that would fit properly. I find it improbable that he gave her his measurements at the outset. I also find it unlikely that Mr. Mohamed resisted Ms. Charalambous’s attempt to assist him. I accept her testimony that she would have stopped assisting him immediately if Mr. Mohamed had raised an objection at any time. It is simply not believable that she would have forced her assistance on him when there was no obligation on her part to assist him at all. I also found it improbable that Ms. Charalambous measured his waist and his inseam in the manner described by Mr. Mohamed. It would have been unnecessary to measure his waist since this measurement would be determined by the sizing set he selected. Mr. Mohamed clearly viewed the alleged measuring of his inseam as the most troubling aspect of the event. One would have thought that this improper action by Ms. Charalambous would have been specifically referenced in the Union’s particulars, yet the particulars do not mention that she asked him to open his legs and that she measured his inseam. The Request for Uniform form filled in by Ms. Charalambous does have an outseam measurement, but does not have an inseam measurement. I find it unlikely that Ms. Charalambous would have taken an inseam measurement and then neglected to note the measurement on the form. I also find it difficult to accept that Mr. Mohamed would not have complained to someone about this event given the impact he claims the event had on him. Mr. Mohamed’s description of the way Ms. Charalambous took his measurements is simply not credible. [21] The phone call event began on Saturday, September 16, 2017. As Ms. Charalambous was driving to work on that Saturday, she heard on the radio a news report about a shooting at Regent Park in which one person died and another was -14- hospitalized. Given their discussion about his personal family issues a few days earlier and the troubling news report, Ms. Charalambous was concerned about the well-being of Mr. Mohamed and his family. She contacted a group leader and asked her if she had Mr. Mohamed’s number and at 1:30 p.m. she was provided with his phone number in a text message. At 1:33 p.m., she called Mr. Mohamed’s number with her personal cell phone. No one answered and she left a voice mail message to the effect that she was calling because she had heard some terrible news and to see if he was OK. This was the only phone call she made to Mr. Mohamed that weekend. Indeed, this was the only call that she ever made to Mr. Mohamed’s home number. Mr. Mohamed returned her call the next day, Sunday, September 17, 2017. She answered and a brief conversation took place in which Mr. Mohamed essentially conveyed that he and his family were fine. She then asked to confirm whether everything was OK and he said yes. One of them said thank you and the call ended. Mr. Mohamed did not give any indication to Ms. Charalambous that he did not welcome her call and Ms. Charalambous was left with the impression that Mr. Mohamed appreciated her call. [22] The significant aspects of Mr. Mohamed’s testimony about the phone call event are as follows. He saw the work related message on the Saturday and thought it might have to do with a court emergency. The message from Ms. Charalambous simply indicated that she wanted him to contact her. So he called her back right away on the Saturday and spoke to her. She told him that she had heard about a shooting in his neighbourhood and asked him if everything was fine and he said that it was. He then told her that he did not want to get this kind of call on the weekend. She said that he was her boss and she could call him anytime she wanted. He told her not to call him about non-work matters on the weekend and she said “OK”. He said he noticed that there was another message from Ms. Charalambous on Sunday. He was uncertain about whether he had listened to the message, but he did not return the call, because he was “pissed off”. Mr. Mohamed was not sure whether he talked to Ms. Charalambous about personal family matters a few days before the phone event. He did not talk to anyone about the phone message he had received on the -15- Sunday or about the weekend discussion with Ms. Charalambous when he returned to work. [23] Mr. Mohamed indicated that he was not expecting such a phone call and he felt uncomfortable about it. He was troubled about the second call, wondered why the boss was calling again and did not sleep well on the Sunday night. He stated that he felt unnecessary pressure because of the call. He also indicated that Ms. Charalambous was intimidating him, misusing her authority and harassing him by calling him at home on the weekend. [24] There were some features of the testimony of Ms. Charalambous that were confirmed by her personal telephone bill. There is no doubt that Ms. Charalambous used her personal cell phone to call Mr. Mohamed and left him a message on the Saturday, that she did not receive a return phone call from Mr. Mohamed until the next day and that Ms. Charalambous did not call Mr. Mohamed on the Sunday and leave another message. I find it unlikely that Mr. Mohamed complained to Ms. Charalambous about the fact that she had called him at home on a Saturday for a reason unrelated to work. I also find it unlikely that Ms. Charalambous told him that she could call him at any time because she was his boss. It appears to me that Mr. Mohamed was embellishing his version of this event. [25] The key event took place not long after a team huddle on November 16, 2017, when employees were asked to return any keys they had for 330 other than the AA1 key. Ms. Charalambous and Mr. Weekes were walking to 330 when Ms. Charalambous happened to notice Mr. Mohamed outside the building talking on the phone. Ms. Charalambous waived to Mr. Mohamed as they approached him, he said “hi” and stopped talking on the phone. She asked him if he had any keys for 330 other than the AA1 key. Mr. Mohamed reached out and gave her his keys so she could check them. She noticed when she looked at them that he had a master key for 330 and did not have the AA1 key. Ms. Charalambous took the master key, replaced it with the AA1 key and returned the keys to Mr. Mohamed. After Mr. Mohamed thanked them, Ms. Charalambous and Mr. Weekes went on their way. Mr. Mohamed did not -16- object to the exchange of keys at the time, nor did he indicate that taking the master key would hamper him in the performance of his duties. [26] A few days after the key exchange, Ms. Charalambous and Mr. Weekes were in his office when Mr. Mohamed entered, yelling and screaming, and complaining that he could not do his job without the master key. He was shaking, his eyes were turning red and he stated, among other things, that taking the key away from him was like taking my gun away. Since what he was saying did not make a lot of sense to her, Ms. Charlambous tried to calm him down so that she could address his concerns. Ms. Charalambous was not cross-examined on this incident. [27] Mr. Mohamed’s description of the key event is as follows. He did not recall seeing the information the Employer had sent out about keys. On the day in question he had been in courtroom 8-4 on a mediation. While on a break he was outside on University Avenue having a smoke when the two supervisors approached him and Ms. Charalambous asked if she could see his keys. He handed her the keys and she looked at them and picked out one key. He asked her what she was doing because he needed the key for the mediation and asked her to wait until the end of the day. She took the key without giving him a reason. She told him that she was the supervisor and had a right to take the key. She spoke in a loud voice and her expression was not right. He denied that she gave him a replacement key at the same time. He returned to work after his break and told the judge what had happened and that he was leaving. He called the office for someone to replace him and did not work the rest of the day. When the hearing resumed on a subsequent day, he stated during cross-examination that he did resume his duties after the break even though Ms. Charalambous had taken his key. He denied that he had attended at Mr. Weekes’ office a few days later to complain about the loss of his master key for 330. [28] Mr. Mohamed explained in some detail about how he felt about the key event. He indicated that he previously had 100% trust in the people he worked with and they trusted him. He wondered if he had made a mistake and that was the reason why -17- the key was taken, but he was satisfied that he had not made a mistake. Once the master key was taken away from him he had lost trust and faith in everyone. For him, removing this important tool of his work on the street was intimidating and harassing. He was not aware of this happening to others and wondered why it was happening to him. He stated that the event impacted his dignity and felt that he was now an outsider. He indicated that the fact that he could not do his work affected him emotionally and physically to the point where “anger came out of his skin”. [29] Mr. Mohamed initially stated that he had secured a replacement and left work after his break because he was unable to perform his duties without the master key. When he was cross- examined on a subsequent hearing day, he acknowledged that he did remain at work and continued to perform his duties. I found that his initial testimony on the point was intended to embellish his position on the significance of Ms. Charalabous taking away his master key. I also found it unlikely that he did not receive a replacement key, that he raised any objection at the time about the taking of the key and that Ms. Charalambous told him that she had a right to take the key. It is evident that Mr. Mohamed later became upset about the loss of the master key. Although he denied it, I find that he did complain to Mr. Weekes about the loss of the master key in the manner described by Ms. Charalambous. [30] The lunch event took place over two days, on January of 29 and 30, 2018. On January 29, Ms. Charalambous went to 330 as part of her supervisory role between noon and 1:00 p.m. She went into courtroom 8-4 and found Mr. Mohamed and Ragu, the person who was shadowing Mr. Mohamed, sitting down. She asked Mr. Mohamed if they were finished and he indicated that they were waiting for materials from the judge. She then inquired if he knew how long this would take and Mr. Mohamed indicated that the endorsement would be ready by 2:00 p.m. Ms. Charalambous then told them that they should take a lunch and come back when the judge needed them. Mr. Mohamed told her that he was not taking a lunch. Ms. Charalambous told them that they should take a lunch and then left. Ms. Charalambous told them to take a break because they were not doing anything at the time and they had time to take a 30-minute lunch break. Mr. Mohamed did not take a -18- break for lunch on that day. Ms. Charalambous made a note of the incident as soon as she got back to her office and did not return to courtroom 8-4 on that day. [31] On January 30, 2018, at about 2:30 p.m., Ms. Charalambous went to 330 to assist Ms. Dykstra in getting her security ID card. She later went to the courtroom floors to see if the courts were still running. As she went to unlock courtroom 8-4, Mr. Mohamed came to the door and opened it for her. On this day he was working by himself. When she asked him how he was, he did not answer. When she asked him if he was able to take a lunch, he did not answer the question and said that he did not have to answer her. He told her that he did not respect her because she demanded that he take lunch on the previous day. He told her that she should not be at 330 and that she should go back to her office. Mr. Mohamed became very upset by this time and told her that this was not a day care and that she did not have to tell him what to do. After using the washroom, Ms. Dykstra was looking for Ms. Charalambous and heard voices coming from courtroom 8-4. She entered the courtroom while the discussion between Ms. Charalambous and Mr. Mohamed was taking place. When Ms. Charalambous tried to explain to Mr. Mohamed her role as manager, he told her that he had been an employee for many years and that there were policies in the OPS that prevented her from doing these things. When she suggested that they should discuss these matters with Mike, her manager, Mr. Mohamed stated that he did want not to discuss anything with them because he did not trust them. He then indicated that Ms. Charalambous had assaulted him on the street when she took his master key and had bullied him when she told him to take lunch on the previous day. Mr. Mohamed then stated that there was a divide between them and other things that made little sense to Ms. Charalambous. On leaving courtroom 8-4 with Ms. Dykstra, Ms. Charalambous told Mr. Mohamed that they would continue the conversation with her manager, and he responded by stating that he was not speaking to anyone. Mr. Mohamed did note on his CTRS report that he took a 30-minute lunch on January 30, 2018. Ms. Dykstra could not recall what they were talking about but she described Mr. Mohamed as very argumentative and upset with Ms. Charalambous. Ms. Charalambous did make notes of the conversation when she returned to her office because Mr. Mohamed alleged that she had assaulted and bullied him. -19- [32] Mr. Mohamed’s testimony about the lunch event contained the following elements. Ms. Charalambous came into the courtroom when he and Raju were together and without asking any questions, she told them to go to lunch. He told her that he could not go to lunch because he was waiting for the judge to complete an endorsement and she said to go to lunch. She spoke in a loud voice as if she was talking to kids. His tone of voice was normal. She went to see the judge, but the judge said he was busy and she came back and left the courtroom. After a few minutes Ms. Charalambous returned to the courtroom while Raju was still present and she brought with her another female manager. They were both walking towards him with their phones out and he asked them if they were recording him. She told him that if he did not go to lunch she would take him to see Michael. She was speaking loudly again as she was pointing and gesturing with her hand and he had the impression that she was approaching him like a boxer. He said he would not go to see Michael because he did not have any representation. He could not recall what else she said before the managers left. When it was put to him in cross-examination about the way Ms. Charalambous had described the encounter that occurred on January 30, 2018, Mr. Mohamed denied that any of it happened and said that she was profiling him. Mr. Mohamed indicated that immediately after the lunch event his schedule was changed with no explanation. He maintained that he was banished from the Commercial Court for a couple of weeks. [33] Mr. Mohamed perceived the actions of Ms. Charalambous during the lunch incident to be intimidating, harassing and discriminatory. He was shocked and speechless that she would treat him in such an undignified manner. He believed that her comment that she would take him to see Michael constituted a threat. Although he did not complain about being banished from Commercial Court for two weeks, he viewed this as a punishment and further harassment. In commenting on how these events affected him, Mr. Mohamed stated their impact was both emotional and physical. He always worried about what Ms. Charalambous would do next and what she was up to. He indicated that the workplace harassment caused him considerable stress and contributed to his arthritis and psoriasis. Mr. Mohamed testified about his -20- treatment by a dermatologist for red spots and rashes on his skin that he claimed were caused by the stress he experienced at work. Clinical notes were entered as an exhibit. He described the pain and itchiness he felt at times as unbelievable because of the stress. [34] The notes of the event made by Ms. Charalambous at the time and the Employer’s scheduling records were helpful in resolving some of the facts in dispute. Although Mr. Mohamed indicated otherwise, the lunch event took place over two consecutive days, Raju was not present on the second day and his schedule had not changed immediately after the lunch event such that he was banished from Commercial Court for an entire two weeks. On January 30, 2018, I found it more likely that Mr. Mohamed spoke in a loud voice during the discussion while Ms. Charalambous spoke firmly, but did not lose control. Although Mr. Mohamed denied he said the things on the second day attributed to him by Ms. Charalambous, I preferred her testimony on these matters. Her testimony was consistent with the notes she had made and was corroborated to some extent by Ms. Dykstra. [35] I will first address whether the Employer discriminated against Mr. Mohamed because of his race. An allegation of this sort is obviously very serious. I set out in paragraph 6 of this decision what is required to establish a prima facie case of discrimination. Mr. Mohamed does have a characteristic that is protected from discrimination. What is missing in this case is any reliable evidence to establish the other two elements of the test. Even if one were to conclude that Mr. Mohamed had experienced some adverse impact, there is simply nothing in the evidence to prove that the Mr. Mohamed’s race was a factor in any adverse impact. The Union’s submissions, in effect, amounted to simply stating that there was discrimination on the basis of Mr. Mohamed’s race, without referring to any specific evidence to establish this allegation. I therefore find that the Union has not demonstrated on the evidence that the Employer discriminated against Mr. Mohamed because of his race. [36] The Union’s focus in this case was on the workplace harassment allegation which includes bullying and intimidation. I have examined each event on its own and also as a series of events that occurred prior to the filing of the grievance. As the -21- decisions I referred to earlier in this decision point out, an allegation of workplace harassment is a serious matter and the onus of proof is on the Union. Not only must the alleged harassing conduct be reasonably known to be unwelcome, it must be vexatious. In other words, the purpose of the conduct must contain elements of bad faith or be unreasonable in the circumstances. And most importantly, the mere belief by an employee that he or she has been harassed and the fact he or she experienced physical or mental harm, will not be sufficient to support a finding of harassment. A successful claim of harassment can only be established on the basis of objective evidence. An inquiry about whether certain conduct of a manager amounts to workplace harassment or bullying can be determined by answering the question of whether the alleged words or actions of the manager were outside the bounds of reasonable conduct within the work environment in which they occurred. [37] Mr. Mohamed described in some detail how he felt about each event and how the words and actions of Ms. Charalambous had an impact on his physical and mental health. Even if I were to accept his testimony on these matters, they alone cannot support the allegations of harassment and bullying that he made in this case. Although I appreciate that harassment can be based on subtle conduct, as argued by Union counsel, I am satisfied on the basis of the objective evidence for each event relied on by the Union that Mr. Mohamed was not the victim of workplace harassment and bullying by the Employer. [38] My conclusions as to what occurred during the uniform event serve to put the Union’s allegations in a different light. Although I determined that Mr. Mohamed did not object at the time to the assistance provided by Ms. Charalambous, I have no difficulty in accepting that Mr. Mohamed may have felt uncomfortable about his supervisor assisting him in any way during the process for obtaining a replacement uniform. And, as Union counsel emphasized, the new process would have allowed Ms. Charalambous to simply ask Mr. Mohamed to fill in the Request of Uniform form and send him off to use the sizing sets by himself. However, given that the process had just been introduced, Ms. Charalambous was prepared to assist any employee who needed assistance. Although Mr. Mohamed did not specifically ask for -22- assistance, it certainly appeared to Ms. Charalambous that he did need some assistance and for that reason alone she stepped in to help. She did not treat Mr. Mohamed differently from other employees who required assistance. Even if Mr. Mohamed found her assistance to be unwelcome, I have no doubt that her actions were not vexatious in the least. Her efforts to assist Mr. Mohamed were carried out in good faith. These efforts were within the bounds of reasonable conduct in this workplace and did not constitute an abuse of her managerial power. [39] Ms. Charalambous did phone Mr. Mohamed’s home on Saturday, September 16, 2017. Having heard about a serious shooting in the area where he lived and having had a personal discussion with him a few days before, Ms. Charalambous was concerned about the welfare of Mr. Mohamed and his family. There may be circumstances where a call from a manager to an employee’s home on a non- working day about a matter not related to an immediate work issue could amount to harassment. But there is no way that the circumstances of this event come anywhere close to constituting harassment or bullying. A good faith call from a supervisor to an employee during non-working time for the sole purpose of enquiring about his well-being does not constitute a breach of the Collective Agreement or the OHRC. In my view, it was not unreasonable for Ms. Charalambous to believe that her phone call would be welcome. And there is every indication that Mr. Mohamed did welcome the phone call on the weekend. In any event, her decision to phone Mr. Mohamed at home was not unreasonable in these circumstances. The phone call was not a vexatious act, nor was it an abuse of her managerial power. [40] The circumstances of the key event are quite straightforward. The Employer had made a decision in July of 2017 to better control access to courtrooms and other rooms. In November of 2017, as part of its plan to control access to rooms at 330, the Employer requested any employee in possession on a key other than the AA1 key for 330 to return it to Ms. Charalambous immediately. Mr. Mohamed did not immediately hand in the master key to Ms. Charalambous as requested. When Ms. Charalambous observed Mr. Mohamed on the street, she took the opportunity to approach him politely, checked his keys, took away his master key and replaced it -23- with an AA1 key. The encounter was very brief and for the sole purpose of complying with the key policy. Encountering an employee outside is not unusual since employees often move between courthouses. Mr. Mohamed was not the only CSO that was deprived of a master key. As his testimony indicated, Mr. Mohamed did not appreciate the loss of the master key and he read a lot of significance into this event. However, Ms. Charalambous’s actions here were not vexatious, nor were they beyond the bounds of reasonable management conduct in this work context. It was merely a good faith effort to achieve compliance with the key policy when she had the opportunity to do so. [41] On January 29, 2018, after observing Mr. Mohamed simply waiting for a judge to complete an endorsement and after concluding that there was time for him and Raju to take a lunch break, Ms. Charalambous told them to take a lunch break. That is all she did and she then left. She believed their interests and management’s interest would be served best if Mr. Mohamed and Raju took a lunch break before the endorsement was ready, rather than sitting around and doing nothing. Given what he told her on the following day, Mr. Mohamed felt that Ms. Charalambous should not be exercising any managerial authority over him with respect to the taking of his lunch break. At about 2:30 p.m. on January 30, 2018, Ms. Charalambous simply asked him if he had taken a lunch break. This was enough for Mr. Mohamed to become loud and specifically challenge Ms. Charalambous’s managerial authority to the point of being insubordinate. The suggestion that they discuss her role as a supervisor with her manager was not a threat, but an effort to convey to him the full scope of her role as a supervisor in a less confrontational manner. As his Supervisor, there is no doubt that Ms. Charalambous had the authority to ask Mr. Mohamed to take a lunch break and to enquire on the next day about whether he had taken a lunch break. Such inquiries were not beyond the bounds of reasonable conduct by a supervisor in this workplace. Although Mr. Mohamed did not welcome her enquiries, they were made in good faith, were not vexatious and did not amount to bullying. -24- [42] Further to Employer counsel’s request that I make a clear statement about Ms. Charalambous in relation to these allegations, I make the following comments. As noted previously, Ms. Charalambous left the position of Court Supervisor on April 23, 2018. This was not long after the lunch event and the filing of Mr. Mohamed’s grievance. She moved to a position where she did not have to supervise anyone. She testified that she left her supervisory position in part because of her experience with Mr. Mohamed. She indicated that she could not understand how anyone could make false allegations of such a serious nature against her. She also indicated that she began to question whether it was advisable to have a helpful and caring attitude towards staff. The circumstances of this case provides another example of how serious allegations can impact an employee making the allegations and the person against whom they are made. I have no difficulty in clearly stating that there was no evidence before me to support the conclusion that Ms. Charalambous harassed, bullied, or discriminated against Mr. Mohamed because of his race. [43] For the foregoing reasons, Mr. Mohamed’s grievance dated February 5, 2018, is hereby dismissed. Dated at Toronto, Ontario this 5th day of November 2021 “Ken Petryshen” _______________________ Ken Petryshen - Arbitrator