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HomeMy WebLinkAbout2013-3791.Plouffe.21-11-22 Decision Crown 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#2013-3791; 2014-3127; 2015-3003 UNION#2014-0234-0021; 2014-0234-0452; 2015-0234-0195 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Plouffe) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Dan Harris Arbitrator FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Felix Lau Treasury Board Secretariat Labour Practice Group Counsel HEARING DATES December 8, 2016; May 16, 2017; January 11, 16, February 1, 7, May 22, 29, October 2, 9, 23, 24, November 7, 8, 2018; March 5, 6, May 21, 29, June 25, 27, July 16, 2019; January 15 and 16, 2020 - 2- Decision The Proceedings [1] This decision deals with three grievances filed by the Ontario Public Service Employees Union, hereafter the Union, on behalf of Robert Plouffe, hereafter the grievor. The grievor was employed as a Corrections Officer at the Maplehurst Correctional Complex, Ministry of Community Safety and Correctional Services, hereafter the Employer. Broadly speaking, the grievances allege that the grievor was not protected by the Employer from workplace harassment, including bullying, by other employees, nor, it is alleged, did the Employer make reasonable provisions for his health and safety. Thus, the grievances allege contravention of articles 2, 3, 9 and any other Acts, articles and or legislation. The grievances are dated January 27, 2014, September 26, 2014, and February 26, 2015. [2] Prior to the commencement of the hearing on the merits, the Union, on February 7, 2018, withdrew, without prejudice, all allegations with respect to article 3 and any allegations relating to the Ontario Human Rights Code, as the grievor had filed a complaint with the Ontario Human Rights Tribunal relating to any such allegations. Accordingly, the Union proceeded with its claims of violations of the Occupational Health and Safety Act, the health and safety provisions of the collective agreement, Bill 168, and any other workplace violence provisions. Also, prior to the commencement of the hearing on the merits, the Union brought motions, and Orders were made, for the disclosure and production of documents, which it says were not complied with. The General Factual Background [3] It is helpful to turn to some of the documents filed as exhibits in order to sketch out the parameters of the claims raised in the grievances. Before looking closely at the incidents at issue it is useful to review a decision of the Workplace Safety and Insurance Board, hereafter WSIB, dated August 7, 2015, which granted entitlement to the grievor for a traumatic mental stress (TMS) injury. The germane portions of that decision are as follows: A claim was established with the Workplace Safety and Insurance Board (WSIB) for a traumatic mental stress (TMS) injury. You are attributing your psychological condition to a physical assault that occurred on May 07, 2010, verbal threats that occurred on January 17, - 3- 2014, and ongoing harassment and bulling (sic) from January 17, 2014 until you stopped working on January 29, 2015. … You were assessed by a psychologist on May 07, 2015 and the psychologist confirmed you have suffered a psychological reaction to the physical and verbal assault and ongoing harassment. There is no evidence in the psychological report of any pre-existing psychological issues. The psychologist has confirmed you are unable to return to work due to your psychological condition. Your employer has confirmed you have been off work since February 02, 2015 and they have paid you since February 02, 2015. … Decision: I have carefully considered all of the information currently available on file. I accept the incidents of May 07, 2010 and January 17, 2014 meets (sic) the criteria for sudden and unexpected traumatic events. Therefore, I am approving this case for health care benefits for a Traumatic Mental Stress injury. As there is medical to support you are unable to return to work, I have allowed full loss of earnings benefits from February 02, 2015. [4] The first grievance, which alleges contravention of articles 2, 3.3, and 9.1, dated January 27, 2014, arises from the verbal threats, which were said to have taken place on January 17, 2014. The WSIB found that they had taken place. The original, precipitating incident in May, 2010 involved the grievor and another Corrections Officer (CO), Heather Murchison. The WSIB found that CO H. Murchison had kicked the grievor in the knee-cap and struck him on the head with rolled up papers. That physical assault was said to have been retaliation by CO H. Murchison for her belief that the grievor had not relayed a telephone message from the scheduling officer offering her an overtime shift. The January 2014 incident involved verbal threats of violence by CO David Murchison, the spouse of CO H. Murchison, against the grievor for the grievor’s alleged further actions against CO H. Murchison. The grievor’s allegations, which led to the first grievance, are set out in his Occurrence Report dated January 17, 2014. That Occurrence Report reads as follows: Sir, On Friday January 17/2014 at M.H.C.C. Unit #9, I was assigned Module Officer T7 0700-1900 shift. Around 0900 CO (H Murchison) was at the Unit #9 module door trying to get access inside the module. I - 4- reluctantly opened the module door because of a previous negative encounter with CO (H. Murchison). I opened the door to the module and CO (H. Murchison) entered the module, I turned my head so I could avoid any further confrontation with CO (H. Murchison). As I was sitting there she pushed a piece of paper in front if my face and said, “These are the cells I need opened for video court” in a sarcastic voice. I said to CO (H. Murchison) to “please put it in the slide box or call out the cell numbers over the radio” as done in the past. CO (H. Murchison) replied “You are not a very nice person”. I replied “Your not a very nice person for assaulting me on Unit #9 a year ago”. CO (H. Murchison) replied “You shouldn’t have messed with my overtime”. I then asked CO (H. Murchison) to “please get out of the module” which CO (H. Murchison) ignored, I then repeated myself several times & raising my voice each time I asked CO (H. Murchison) to leave because CO (H. Murchison) was still arguing with me and looking for confrontation with me. Finally CO (H. Murchison) left the module to collect inmates for court. CO (H. Murchison) started calling the cell numbers she needed opened over the radio as per normal procedure. Therefore, I concluded the only reason CO (H. Murchison) wanted access to the Unit #9 module was to harass me. Around 1200 as per my normal routine I went to the staff gym to work out on my lunch. As I was working out CO (H. Murchison) who I have never seen in the gym before, came in & got on a treadmill & proceeded to watch me everywhere I went in the gym, as if she was stalking me. This made me feel uncomfortable & left the gym. Around 1330 CO (H. Murchison) needed a fresh battery for her radio. I grabbed a fresh battery & gave it to her with the slide box in the module, because CO (H. Murchison) was again trying to gain access to the Unit #9 module again. I followed this procedure, because by this time it was evident to me that CO (H. Murchison) was looking for more confrontation with me. After 0900 there was no communication with CO (H. Murchison) and myself. Around 1430 I saw CO (D. Murchison) come into Unit #9. I am not sure if CO (D. Murchison) went into Unit #9 programs first to see his wife CO (H. Murchison) before he came knocking on the Unit #9 module door looking for me. I saw CO (D. Murchison) standing at the Unit #9 module door. I opened the door for CO (D. Murchison) as I would for any Correctional Officer wanting access to the module. CO (D. Murchison) opened the module door & starting screaming at me saying “To step out of the module & settle this in the Unit #9 yard” several times. I said “no”. He stepped forward and said “I can do this here”. I asked CO (D. Murchison) “Do what here.” CO (Murchison said “I’ll punch your face in the module then, and to stop picking on his wife”. I said “No” several times to his physical threats & to step out of the module into the Unit #9 yard to fight. I then asked CO (D. Murchison) if “he was serious”. CO (D. Murchison) said “that he will settle this with me now or later”. I saw CO (Grover) & CO (Strickland) come over to the module to intervene & defuse this volatile situation by telling CO (D. Murchison) “This is not the time or place for this behaviour” and “Not in front of onlooking inmates”. CO (Grover) & CO (Strickland) got CO (D. Murchison) away from myself & - 5- the module. When CO (D. Murchison) finally left the Unit #9 floor he threatened me again shouting “he is going to settle this”. I feel my health & safety was threatened & cannot be tolerated at a government facility. I was assaulted prior to this event over a year ago by CO (H. Murchison). I believe CO (H. Murchison) is directly responsible for her husband CO (D. Murchison) to leave his assigned workplace & to come on to Unit #9 & threaten violence against me. I believe CO (D. Murchison) is capable of assaulting me while at my place of work at any given time, as CO (D. Murchison) stated. This entire incident was without a “doubt” preventable, as soon as I was aware that CO (H. Murchison) was coming on my unit to work, I advised Deputy (Janet Gauthier) & Deputy (Chuck Marchegiano) that CO (H. Murchison) had assaulted me a year ago & I did not feel comfortable working with CO (H. Murchison). Both Deputies assured me that CO (H. Murchison) would not be on the Unit to work. As it turned out, my request was ignored and my health & safety was put at risk. [5] The May 2010 incident referenced in the WSIB decision, supra, is the event that precipitated the interactions set out in the Occurrence Report above. That May 2010 incident was detailed by the grievor in a further Occurrence Report dated January 28, 2014, which reads as follows: Sir, On Friday May 07, 2010 at M.H.C.C. approx. 0900 in Unit #9 I was sitting at the Unit #9 desk with CO (Strickland). I saw CO (H. Murchison) come onto Unit #9 floor & question CO (Strickland) about “messing with her overtime”. CO (Strickland) stated that “he has no idea what she is talking about”. CO (H. Murchison) then looked at me & accused me of “messing with her overtime”. I had no idea what she was talking about & I told her it was not me. CO (H. Murchison) said “It was you” and then soccer kicked my leg as I was sitting in a chair. (H. Murchison) tried to kick me a second time & missed. After she gave up kicking me CO (H. Murchison) rolled up a binder & tried hitting me several times when I was sitting in the chair still “Yelling at me to not mess with her overtime”. I told CO (H. Murchison) several time [sic] “Stop assaulting me”. After CO (H. Murchison) was finished assaulting me, she went back to work like nothing happened. I had nothing to do with CO (H. Murchison) overtime. The assault on me was witnessed by CO (C. Grover) CO (R. Wakenhut) CO (Strickland). [6] Accordingly, the grievor and the Union say that the Murchisons had an animus to him that the Employer was said to have been informed of and from which it did not protect the grievor. By way of remedy the Union sought a declaration, general damages, punitive damages and an order that the grievor be made whole including his losses of pension, benefits and wages. - 6- [7] The second grievance, is dated September 26, 2014, and reads as follows: I grieve the Employer is in violation of the collective agreement, articles 2, 3 & other legislation or acts. Management has shown gross negligence towards my health & safety; Management failed to provide me with a harrassment [sic] free work place, by letting (H. Murchison) work in Unit #8. Settlement Desired: Full redress Any and all entitlements under the collective agreement As described below, the grievor believed that Management had agreed to keep him separated from the Murchisons; he testified that Management failed to do so. Accordingly, he filed the second grievance. As set out above, the Union withdrew the allegations of a breach of article three, in deference to the grievor’s application to the Human Rights Tribunal of Ontario. [8] The third grievance, dated February 26, 2015, reads as follows: I grieve that the employer is in violation of Articles 2, 3, 31A-11-1 (Health and Safety) of the Collective Agreement, the Employers Workplace Violence Prevention Policy, Bill 168 and any other Act, Legislation, or Policy that encompasses workplace violence and harassment in the workplace. Settlement Desired: Full redress Any and all entitlements under the collective agreement A safe, hassle and bully free environment By the time the grievor filed the third grievance had had left the workplace, never to return. As set out above, he was awarded WSIB benefits. He testified that after he went off work he started to read up on the law that he felt applied to his circumstances, such as the collective agreement, the Workplace Violence Prevention Policy, and Bill 168. He concluded that Management had not done their due diligence in dealing with his concerns. As a result, he filed the third grievance. [9] The Employer’s position at the outset was that it takes Health and Safety issues seriously but should not be held liable for the inappropriate behaviour of employees towards each other of which it had no knowledge, and, in particular in these matters, of which there was no indication of any issue between the years 2010 and 2014. The Employer raised the question of the applicability of this - 7- Board’s decision in OPSEU (Monk) v. Ontario (MCSS and MCYS) (2010 GSB# 1995-1694) April 10, 2010 (Gray). The Employer said that in its submission the Board’s jurisdiction is limited to the granting of a declaration. [10] The parties agreed to bifurcate the issue of damages and proceeded on the basis of whether a declaration should issue. The Evidence [11] The Union called the grievor as its first witness. He started working as an unclassified CO in May 2000. He became a classified employee in or about 2006 or 2007. [12] The grievor testified about the incident in 2010 involving Heather Murchison. He said that the Scheduling Manager had called the Unit to ask if Ms. Murchison could work a weekend overtime shift. Whomever took the message failed to give it to Ms. Murchison. As a result, she missed the overtime opportunity and went to the bottom of the overtime availability list. She found out on the Monday that she had missed the shift and was angry as a result. She came into the Unit and first blamed CO Strickland for not telling her about the overtime call. He denied it, at which point, the grievor testified that she turned on him. She was said to have kicked him in the kneecap, tried to kick him again, but missed, then hit him on the head with a binder. The grievor said that Sergeant Lacoursiere was present during the assault. Because of that the grievor did not file an Occurrence Report (OR) about the incident at the time; other COs were also present. He said that Lacoursiere belittled him for being beaten by a woman, which also deterred him from formally reporting the incident. It was the grievor’s belief that Sergeant Lacoursiere would have reported the assault himself because he was the manager of the Unit at that time and had seen the assault. The grievor said that he and Heather Murchison neither talked to nor acknowledged each other after the incident, nor did they work together. [13] The grievor testified that, as set out in his first grievance, he reported his concerns about working with Heather Murchison to Deputy Superintendent Janet Gautier (DS Gautier) due to having been assaulted by Ms. Murchison. He testified that he did so when he heard that Ms. Murchison was to be posted to his Unit, Unit 9. The grievor testified that his contact with DS Gautier occurred two to three weeks prior to January 2014. Ms. Gautier was said to have assured him that Heather Murchison would not be posted to Unit 9. - 8- [14] Nonetheless, in the new year Ms. Murchison was posted to and arrived in Unit 9. The grievor testified that he then went to speak to DS Gautier about why Ms. Murchison had been posted to Unit 9. Because Gautier was on vacation, the grievor said that he spoke to the Deputy Superintendent of Employee Relations, Chuck Marchegiano (DS Marchegiano). The grievor testified that he spoke to DS Marchegiano in the first two to three days of January 2014 and that he told DS Marchegiano about the 2010 assault and about DS Gautier’s assurance given two to three weeks earlier that Heather Murchison would not be posted to Unit 9. The grievor also testified that DS Marchegiano told him that Heather Murchison would be out of Unit 9 within two days. When she was still there a week later the grievor testified that he again went to DS Marchegiano and received the same response that Ms. Murchison would be moved from Unit 9 within two days. [15] On January 17, 2014 the incidents described in his Occurrence Report of that date took place. In his evidence the grievor adopted the facts laid out in his Occurrence Report as true and reviewed them. He testified that at the time the Local Union President, Rick Wakenhut, relieved him so that he could go to report the incidents to DS Gautier and DS Marchegiano. He testified that both of the Deputy Superintendents apologized for the situation and again reassured him that Ms. Murchison would be removed from Unit 9. He testified that they did remove her, but it had taken the events of January 17, 2014 to get them to act. They asked him to complete the Occurrence Report above detailing what had happened that day. After filing the OR dated January 17, 2014 he was then asked to, and he did, file the OR dated January 28, 2014 dealing with the previous incident in 2010 when Ms. Murchison had kicked him and hit him on the head. He testified that in referring to the previous incident he mistakenly wrote down in his OR that it had occurred “a year ago” but it had happened earlier, in 2010. He testified that he was never asked to file an addendum to the OR, nor was its veracity ever questioned. He testified that he had told them that Sergeant Lacoursiere was present at the first assault but that he did not include Lacoursiere in his OR as having seen the incident because Sergeant Lacoursiere was a member of management and the grievor assumed that Sergeant Lacoursiere had himself reported the assault at the time that it took place. [16] The grievor testified that following the incidents of January 17, 2014 both of the Murchisons continuously tried to intimidate him in the jail. He testified that he had several meetings with DS Marchegiano and Superintendent Mark Parisotto, to no effect. At one point he was told by DS Marchegiano that Heather Murchison was to be assigned to Unit 8. The grievor’s concern was that his unit, Unit 9, shared a lunchroom with Unit 8 and both units would respond to an emergency Code Blue from the other unit. The grievor testified, in essence, that - 9- DS Marchegiano dismissed his concerns, telling him to “grow up”. Consequently, he filed a Workplace Discrimination and Harassment Prevention Policy Complaint Form (WDHP) on July 14, 2014. On the form he set out that he feared for his safety with Heather Murchison being on Unit 8. In his evidence here, he said that that his fear was that he would be assaulted again by her. It was also his evidence that when he gave the completed form to DS Marchegiano his concerns were again treated with distain. DS Marchegiano told the grievor that Heather Murchison was going to be posted to Unit 8 whether he liked it or not. Consequently, the grievor filed another WDHP complaint the following day. That complaint expanded his safety concerns to include what he described as David Murchison’s attempts to provoke him into a fight. The Complaint Form sets out in part the following at page 3: I also fear for my safety when in the company of (David Murchison) when I see him in common areas of the jail. I also witnessed (David Murchison) smiling, winking & blowing kisses at me. I believe (David Murchison) is trying to provoke me into a fight, but I fear for my safety around him. I have addressed this issue to management on (2) occasions and appears to me management doesn’t care & wants this to be swept under the rug. [17] On the Complaint Form the grievor named “Maple Hurst Management” as the individual against whom the complaint was made. It was his evidence here that he was referring to Superintendent Mark Parisotto. He also testified that Supt. Parisotto would not meet with him, and that Supt. Parisotto, through his secretary, insisted that he deal with DS Marchegiano regarding this matter. [18] The grievor also made a complaint to the Ministry of Labour which resulted in a visit to Maplehurst by James Watson, Occupational Health and Safety Inspector, Provincial Offenses Officer, on July 25, 2014. His report indicates that he met with “Mr. Tom Dykstra – Deputy Superintendent Admin, Mr. Chuck Marciano [sic] – Superintendent (Acting), Mr. Mike Laderoute – JHSC Cert Worker Member”. The inspector’s comments are brief and read as follows: Inspector’s comments: - Met with the above named workplace parties in Mr. Dykstra’s office - The workplace parties were aware of the complaint details - The workplace parties all agreed that a workplace violence program is in place, and that the procedure is being followed. [19] The grievor spoke to the inspector at the time who was said to have told the grievor that once he had been told that there was a workplace violence program in place, which was being followed, there was nothing further he could do. The grievor also testified that he spoke to Mr. Dykstra and told him, in essence, that it - 10- was false to say that there was a functioning workplace violence program. The grievor testified that Mr. Dykstra shrugged his shoulders and walked away. [20] The grievor testified that he complained to DS Marchegiano again when David Murchison was assigned duties that included distributing laundry to Unit 8. Marchegiano was said to have again dismissed the grievor’s concerns. [21] During the time that the grievor was pursuing his WDHP Complaints and his complaint to the Ministry of Labour, he was unaware that a Local Investigation Report (LIP) looking into the January 17, 2014 incident had been completed by Sgt. A. Cicak on February 11, 2014. Further, the grievor testified that he had no knowledge of whether or not the LIP had been provided to the Ministry of Labour Inspector. [22] The grievor said that he sent an email on August 13, 2014 to Marchegiano enquiring as to the status of the WDHP complaints, but he got no reply. [23] The grievor testified that he filed another OR on August 14, 2014, complaining about Heather Murchison’s presence on Unit 9. It should be noted that OR’s are addressed to the Superintendent. They would go to Mr. Parisotto, but it is possible that other staff may respond to the OR, as set out in the evidence below. The grievor received no response to his August 14, 2014 OR. [24] On September 8, 2014 the grievor again sent an email to Marchegiano, copying his Union representative, Frank Digiulio asking if it was standard procedure to wait for two months to receive a response to a WDHP complaint. He said that this time he received quick action in the form of an email response that same day from Cory Harris, WDHP Advisor, Centre for Employee Health, Safety and Wellness, Ontario Shared Services, Ministry of Government and Consumer Services. Mr. Harris was seeking to set up a telephone conversation with the grievor that week to “discuss in more detail the allegations you have made so I can complete my assessment as to whether your allegations potentially violate the WDHP policy or not”. Harris’s email also set out that he would communicate his assessment to Marchegiano who would in turn communicate it to the grievor. The grievor testified that such a process was “not good” since it was Marchegiano who had not done anything to help him and had been the one poisoning his workplace by inserting Heather and Dave Murchison into it. The grievor also testified that in his subsequent telephone conversations with Harris he concluded that Marchegiano had not sent all of the relevant documents to Harris. Consequently, on September 11, 2014 he sent what he believed to be - 11- missing from Harris’s file, being his ORs of January 17, 2014 and August 14, 2014. [25] On September 10, 2014 the grievor said that he submitted another OR. He had received a phone call from Heather Murchison regarding scheduling him for an available overtime shift. The grievor testified that, notwithstanding Marchegiano’s assurances that Heather Murchison was not to contact the grievor, she had been assigned to the Scheduling Office. In performing this role, she would inevitably be required to speak to the grievor. The grievor responded by speaking with DS Frankovich and, although she appeared to be sympathetic, the grievor testified that she “showed him the door”. As a result of this however, he testified that Heather Murchison’s duties were adjusted and she was taken off scheduling full-time CO’s; she was tasked with only scheduling unclassified officers. [26] The grievor also testified that the assurances he received from management that Heather Murchison would be kept away from him were all verbal. The grievor submitted another OR on September 10, 2014. He testified that he had gone to the Unit 8 break lounge to write an OR but was turned back, quite publicly, by Sergeant McCabe, the Unit 8 Sergeant and in the presence of OM16 Wilson and other COs. The grievor said that he was told that he could not go into the Unit 8 break lounge, which was shared with his Unit, because Heather Murchison worked on Unit 8. The grievor testified that he got no response from Marchegiano regarding this event. Further, he still had no knowledge of the existence of the LIR of February 11, 2014 written by Cicak. [27] The grievor testified about another OR, dated September 17, 2014, which documented Heather Murchison breaking the “No Contact Ban” again. He testified that he gave the OR to Marchegiano and then went home. He said in his evidence that Marchegiano did not disagree that there was a “No Contact Ban”. He said that Marchegiano looked frustrated and said again that he would talk to Heather Murchison. [28] The grievor testified about a meeting held on September 18 in Parisotto’s office. The grievor brought his Union Rep, Ryan Graham. Mr. Dykstra and Mr. Parisotto were present. The grievor said that he had demanded the meeting. He testified that he explained the whole story from 2010 on. He said that Parisotto offered nothing. He felt that Parisotto sloughed him off. [29] The grievor testified that he received an email dated October 6, 2014, from Parisotto that purported to document the discussions at the meeting. The email - 12- sets out that Corry Harris had found that all of the grievor’s allegations were out of the scope of the WDHP and that the grievor could meet with the Halton Regional Police Service to discuss the 2010 assault. The grievor testified that this email was the first time he had heard that Harris had decided his complaints were out of scope and the first time it had been suggested to him that he could go to the police. The grievor said that he did not contact the police because he believed that management would take the appropriate steps necessary to separate Heather Murchison from him by either transferring her to a different institution, to the other side of Maplehurst or to a different shift. Also, he said that the jail culture would label him a rat if he went to the police. He testified that Parisotto was calling his bluff with that suggested course of action. [30] The grievor testified that he did contact the police sometime in November 2014 after receiving a letter from Supt. Parisotto dated October 30, 2014, in which Parisotto stated that the complaint file had been closed and no further action would be taken because the grievor had not contacted the police. The grievor said that he concluded that Parisotto and Marchegiano saw no problem with Heather Murchison’s behaviour, and his last resort was to go to the police. He said that he provided the police with names of witnesses for the investigation that the police launched. He said that he was told by the investigating officer in or about December that the investigation would not be pursued further. [31] The grievor’s evidence was that he made a Freedom of Information request in order to see the police investigation file. He testified that he learned that the police investigator concluded that David Murchison had harassed him, but the police officer exercised his discretion not to lay any charges. The grievor also concluded from that disclosure that the officer relied on the information from Marchegiano, which was identical to that which Marchegiano had given to the WSIB and which reads as follows: The worker states that this has been ongoing since January 17, 2014. The deputy superintendent states the incident of January 17, 2014 was addressed and the worker has provided no substantiated evidence of any further verbal assaults. This is why the employer has concerns about this claim. [32] The grievor said that the statements in the police and WSIB materials that there were no further verbal assaults after January 17, 2014 was false because it ignored the WDHP complaints, the Ministry of Labour complaint and his numerous meetings with Marchegiano and the ORs he had filed. He also testified that at that time he still did not know of the existence of the LIR of - 13- February 11. 2014 and, he believed, nor did the police as part of their investigation. [33] The grievor testified that he filed an OR on January 30, 2015 regarding an incident on January 29, 2015 when Dave Murchison came onto Unit 9 and intimidated him by smiling at him and then glaring at him. He asked OM16 Essery to keep Murchison out of his unit, Unit 9, which he did. January 29, 2015 was the last day that the grievor worked. He testified that he just couldn’t take it anymore. He came into the jail on January 30, 2015 just to write and submit the OR of that date. [34] In his evidence at the hearing the grievor reviewed the LIR dated February 11. 2014. As set out above, that report was prepared by Sergeant A. Cicak, the Security Manager at Maplehurst. The grievor testified that Ms. Cicak spoke to him a few days after the incident of January 17, 2014 involving Dave Murchison. She told him that it would take a few days to write the report and that everything she needed was available through witnesses or video. He testified that he was never told that the report had been finished nor was he given a copy of the report until he received it from Union Counsel in these matters, who had obtained it as part of the production of documents in these proceedings. [35] The grievor was taken through the report and gave his views on its accuracy. The report is dealt with below, so there is no need to go through his evidence in detail here. Suffice it to say at this juncture that the report fully canvassed the circumstances of the incidents of January 17, 2014. The grievor was found to have committed what were said to be common transgressions, such as leaving the control room door ajar and yelling at Dave Murchison. Dave Murchison was found to have, among other things, yelled at the grievor, threatened harm to him, shook his finger toward the grievor and said to the grievor to “step out of the module and settle this in the yard”. [36] The grievor testified that after reading the LIR he felt cheated. He questioned to himself who were these people, meaning members of management, who didn’t give the report to the Ministry of Labour inspector, nor to Corey Harris nor to the police. He testified that in his view they hid the LIR from everyone he had looked to for help. [37] The grievor also testified about an allegation meeting on July 22, 2014 at which a Local Investigation Report regarding his actions on September 9, 2013 was discussed. The letter he received that scheduled the meeting explicitly referred to two Local Investigation Reports that were identified by their Investigation file - 14- numbers. The grievor testified that he never received a similar letter relating to the investigation of the January 17, 2014 incidents. [38] The grievor was also asked about a letter dated October 14, 2015 from the Office of the Integrity Commissioner, Legislative Assembly of Ontario. He testified that he made a complaint to that Office in March 2015. He said that he met with representatives of that Office and explained to them all that had happened to him. He said that the Office appointed Stephen Rhodes, Deputy Minister for Community Safety and Correctional Services to investigate allegations that Heather Murchison had assaulted three different COs on different occasions. The grievor testified that the letter of October 14, 2015 ended the investigation. The grievor said that Stephen Rhodes “said the right things to make it go away.” [39] The grievor was also taken through the Workplace Violence Prevention Policy and testified as to what he considered to be breaches of the Policy by management at Maplehurst as pertaining to actions or omissions relating to him. Specifically, he testified as to what he considered to be management retaliating against him for his having raised his concerns about the Murchisons. He testified that the reopening of the old allegations set out in the letter of June 27, 2014 and the subsequent meeting on July 22, 2014 was a retaliation, as was management’s failure to respond appropriately to his information to them. He testified that OM McCabe’s direction that he not use the break room shared by Units 8 and 9 was a retaliation. He also testified that management failed to respond immediately to the workplace violence directed at him by the Murchisons. [40] In his evidence the grievor identified reports of his medical practitioners and agreed with their opinions. [41] The grievor testified that he filed his third grievance, dated February 26, 2015, because, after he went off work on January 29, 2015, he had had an opportunity to consider legislation that he felt was applicable to management’s treatment of him. He wanted an opportunity to show where management had failed to do their due diligence in investigating his circumstances. He testified that having been provided with the LIR long after the fact, it is applicable to his third grievance as well. [42] The grievor testified that his goal in bringing the three grievances was to make things right regarding the damage done to him by members of management who had destroyed his life. He recounted the various pecuniary losses he’d suffered - 15- because of their actions as well as the loss of his ability and opportunity to work as a CO. [43] In his cross-examination the grievor confirmed that he was still receiving benefits from the WSIB. He reviewed the assault incident of May 7, 2010, including his having been kicked and hit on the head by Heather Murchison. He repeated that he did not file an OR at the time because his manager had witnessed the events, and he repeated that his manager had belittled him by calling him a little girl. He testified that he did not feel that he had to report it because he expected his manager to report it as part of the manager’s due diligence. He said that a manager is required by Bill 168 to report such an incident. The grievor testified that at the time he was embarrassed to report that he had been assaulted by a fifty-year-old woman, and would be labelled by his co-workers as a rat if he did report it. He also testified that he did not file a formal OR because he had brought it to the attention of Chuck Marchegiano. The grievor added that Chuck Marchegiano “does what he does so well”. The grievor was asked if he was being sarcastic, to which he answered, “No, I’m being honest.” The grievor testified that Mr. Marchegiano told him that Ms. Murchison was angry about missing an overtime shift, and that was why she had lashed out. The grievor repeated that Ms. Murchison first blamed CO Strickland and then turned on him. He said that there were others present, being CO Strickland, CO Gower, CO Wakenhut and Sergeant Lacoursiere. Although the grievor agreed in his cross- examination that with the advantage of 20/20 hindsight he ought to have created a paper trail by filing an OR, at the time he did not think it necessary to do so because he believed the matter would be dealt with by Sergeant Lacoursiere and subsequently by DS Marchegiano, who told the grievor that he would deal with it. The grievor said that his interest was in obtaining safe space. He testified that he did not report Sergeant Lacoursiere’s comments because he did not want to poison his work environment. [44] The grievor testified that it was in management’s lap to do their due diligence and provide him with a safe working environment. In the grievor’s view being embarrassed, humiliated and not wanting to be labelled a rat were legitimate reasons not to have filed an OR at the time. [45] The grievor also testified that he had done his due diligence at the time. He said that if he had he filed an OR it would have gone nowhere. When he was asked, many years later, to file an OR regarding the 2010 incident, he did so. In that OR, dated January 28, 2014, he did not include Sergeant Lacoursiere as being present at the 2010 incident. He only included the names of his co-workers. - 16- [46] The grievor testified in his cross-examination that he was satisfied with Mr. Marchegiano’s assurance that Ms. Murchison was being moved out of the grievor’s Unit to the Admitting and Discharge area to function as the Video Court Officer because she was being moved away from him, even though there would be a risk of incidental contact with her. [47] The grievor was also cross-examined about the incidents of January 17, 2014, the first involving Heather Murchison and the later incidents involving David Murchison. He testified that he wrote his OR describing that day’s events because he was told to do so. As he said in his direct examination, he made an error in the OR, saying that the assault by Ms. Murchison had taken place a year before he wrote the OR. He said that the mistake was as a result of being under duress. That timing error was corrected in his OR of January 28, 2014 which detailed the circumstances of the 2010 assault. [48] He testified that after the January 17, 2014 incidents he was constantly and daily harassed or bullied by one or the other of the Murchisons. He allowed as how they may have missed a day. [49] The grievor agreed in his cross-examination that his next OR was filed on August 14, 2014. He testified that although he did not file formal OR’s in that intervening period, he had meetings with DS Marchegiano, Superintendent Parisotto and DS Dykstra to report and complain that Mr. Murchison continued to intimidate him, blow kisses at him and wink at him. He met with management throughout the year, accompanied by his union representative. He testified that nonetheless CO David Murchison was permitted to continue delivering laundry to the units, thereby getting on the grievor’s unit every day. The grievor said that he filed the August 14, 2014 OR because he was told that Heather Murchison was to be posted to Unit 8, the unit that shared facilities with his unit, Unit 9, such as the lunchroom, hallways and washrooms. The grievor testified that he filed that OR because his verbal reports were not being taken seriously. He said that this was also the reason he complained to the Ministry of Labour and filed WDHP Complaints. The substance of the August 14, 2014 OR was said to be but one example of Heather Murchison contriving reasons to come onto Unit 9 in order to harass him with intimidating scowls and clenched fists. When pressed in cross- examination he agreed that the OR did not refer to clenched fists. He said that her whole appearance was calculated to be threatening towards him, and he feared for his safety. He believed that she was looking for a fight. [50] It was the grievor’s evidence that he had been promised by management that Ms. Murchison would not contact him. He said that whenever she did contact - 17- him it would be in a confrontational manner. He gave as an example that when he responded to a telephone message to return a call to arrange an overtime shift, Ms. Murchison answered the phone and spoke to him in a smirking, demeaning manner in her tone of voice. He reported that interchange with DS Frankovich and went home sick. He said that management having posted her to a position in which she inevitably would be in contact with him was inappropriate. He said that he had been skipped for overtime by Ms. Murchison, and when he reported that to DS Marchegiano, Marchegiano had him paid for the missed overtime without the grievor having to file a grievance. The grievor said that he had had to chase after DS Marchegiano to get paid. The grievor also confirmed in his cross-examination that after he reported Ms. Murchison to DS Francovich, Ms. Murchison was moved to scheduling overtime only for casuals. [51] The grievor was asked about his OR dated September 10, 2014 in which he described OM16 McCabe telling him he could not use the shared lunchroom because Heather Murchison worked in Unit 8. Although the OR did not say OM16 McCabe yelled at him, in his cross-examination he said that she did so, and she yelled so loudly that everyone could hear her screaming at him to stay out of the lunch room. He said that he was being polite in the OR account. He testified that she said, “You can’t fucking go in there, you have a fucking problem with Heather Murchison so you can’t fucking go in there, what’s the fucking problem with you.” The grievor testified that OM16 McCabe centred him out and poisoned his work environment. He said that he went into the Unit 11 lunch room, against Standing Orders, to write his report. He also testified that to the best of his recollection he never went into the shared Unit 8 lunchroom again. He would eat at his desk and not keep his lunch in the refrigerator supplied for that purpose in the lunchroom shared between Unit 8 and Unit 9. [52] Regarding Ms. Murchison bringing a coffee to the nurse, the grievor said that as soon as Ms. Murchison came onto Unit 9 to do so he left because he was afraid that she was looking for a confrontation. In his OR dated September 17, 2014, the Subject/Nature of Report reads “NO CONTACT BAN BROKEN AGAIN”. That OR includes the following: It appears to me CO (Heather Murchison) was looking for confrontation with myself by entering Unit 9 Programs for no good reason and has broken the “No Contact Ban” again! I feel (Chuck Marchegiano) has failed me once again for not providing me with a harassment free work enviroment (sic), or has lied to me again about speaking to CO (Heather Murchison) about leaving me alone & to stop entering my unit while I’m working. - 18- [53] The grievor testified that it did not matter how Ms. Murchison came to be bringing coffee to the nurse on Unit 9 because Murchison had assaulted him and she was not allowed on his unit; he needed a safe place. He said that he expected to be treated the same way as anyone else who had been assaulted. He recounted that to his knowledge a CO who had assaulted a female CO had been put on a straight night shift and in another such case the aggressor had been transferred to a different institution. The grievor testified that he wanted similar protection; that is, a safe working environment. [54] The grievor was also cross-examined regarding his OR dated January 30, 2015, which details events that occurred on January 29, 2015. He agreed that it was submitted some four months after his previous OR of September 17, 2014, but said that he had made verbal reports in the time period between the two ORs. He agreed that the OR of January 30, 2015 was concerning Dave Murchison coming onto Unit 9. The grievor testified that DS Marchegiano had told him previously that both Murchisons were to be kept away from him. The grievor provided more detail in his evidence than in the OR. He testified that Dave Murchison had stood, “looming” over him, smiling and glaring at him in an intimidating fashion. [55] The grievor testified that after this incident he went off work. He said that David Murchison coming onto the unit was intimidating, bullying and stalking. The grievor became quite animated at this point in giving his evidence. The grievor said that it made him want to “puke” when Murchison came on Unit 9. It was his belief that management allowed David Murchison to engage in this behaviour. He believed that the Murchisons’ behaviour was only explicable because they must have a relationship with Superintendent Parisotto or someone else. He said, “I’d like to know who they are related to.” and, “They are covering up for the Murchisons; they must be related to them.” The grievor also said that the treatment of the Murchisons differed from others. He said that Heather Murchison had committed assaults against other co-workers. [56] The grievor testified in his cross-examination that the revival by management in June, 2014, of his minor participation in a use of force on an inmate was a reprisal for his having sought their protection from the Murchisons. He was accused then of not having written an OR relating to the subject incident that had occurred on September 9, 2013, yet he had been asked for and submitted an addendum to his OR; he said that that disclosure brought the July 22, 2014 Allegation Meeting to a conclusion and he never heard about the matter again. He testified that the allegations were made just to pressure him at the time he was lodging his complaints and reports about the Murchisons to management. - 19- He testified that Superintendent Parisotto had spearheaded this retribution. He testified that he was never provided with the reports detailed in the Allegation Meeting letter of June 27, 2014, signed by the Deputy Superintendent of Operations, T. Dykstra. He testified that management was making the allegation that he did not write an accurate Occurrence Report about the use of force as retribution for his having complained to the Ministry of Labour, filing a WDHP Complaint, and as a result of his complaints to Marchegiano over the course of the previous year. He testified that these events were all going on at the same time. [57] The grievor was cross-examined on the contents of a Psychological Assessment Report of August 29, 2016, completed by the Psychological Trauma Program at the Centre for Addiction and Mental Health, (hereafter CAMH report #1) in which it was reported that he told the examining physician that he wanted to physically harm a number of people associated with the workplace incident. Under cross- examination he was asked if he still felt that way at the time he was giving his evidence. When he answered in the negative, he was asked why he felt different at the time he was giving his evidence. His testimony on that point was that he had lost his house and his ability to care and provide for his mother, which was the reason he had bought the house. He said he was on medication and had suffered mental trauma. He testified that back then he had felt extreme anger because he would not have been in that situation if DS Marchegiano and Superintendent Parisotto had done their jobs. He testified that he had gone to school to be a corrections officer and that his only skill is to be a jail guard. He said he was, at the time he gave his evidence, taking medication and receiving psychiatric help, so there was light at the end of the tunnel. He said that Marchegiano and Parisotto were the wrongdoers and that he would not lower himself to their level. He said that at the lowest point in his life he had no hope for the future but that even then, at the time he gave his evidence, he still feared for his future. He was cross-examined about statements in the report that say he told the examining physician he had been followed. He said in his testimony that that had happened while he was co-operating in making his WSIB claim. He said that he had been followed and approached by a member of Maplehurst’s management, who was part of the Security Department. [58] The grievor was also cross-examined on the contents of the LIP completed by Sgt. Cicak. He agreed that the report found that he had committed technical violations of Policy relating to leaving the control module doors unlocked and ajar and to using an electronic device while in the control module. He disagreed that he violated Ministry Policy by yelling at CO D. Murchison while on duty. He - 20- testified that if defending himself from Murchison is a crime then he violated the Policy. Accordingly, the grievor agreed to the first two violations alleged but disagreed with the third. He testified that he was never asked to go to an allegation meeting regarding these findings, nor was he disciplined. [59] In his re-direct examination, he was asked to explain what he had meant in cross-examination that DS Marchegiano did what he does so well. The grievor testified that DS Marchegiano made things disappear and go away, regardless of what and how a situation had occurred. The grievor said that Marchegiano was doing his best to make the grievor’s situations go away. The grievor said that everything Marchegiano did contradicted what he had told the grievor. The grievor also said that all of the ORs, Marchegiano’s notes and Marchegiano himself have disappeared. That is, they went away. [60] He was also asked where his conversation with Marchegiano had taken place when they first spoke of the assault. The grievor testified that Marchegiano routinely smoked a cigarette in the parking lot each morning when anyone could talk to him on the way into work. He said that it was there that he spoke to Marchegiano; no one else was present. The grievor testified that thereafter he always had a union representative present for conversations with or reports to Marchegiano. [61] The grievor also testified in re-direct that Ms. Murchison was not kept away from him. He did not recall which member of management instructed him to file the OR dated January 17, 2014. He said that in addition to making oral reports to management between January 28 and August 14 of 2014 he filed the WDHP complaint of July 15, 2014 in which he reiterated what he had said to Marchegiano about David Murchison smiling, winking and blowing kisses in order to provoke a fight. The WDHP complaint was given to Marchegiano. He said that Murchison had done so a few times per week, for two years, on Unit 9 in front of inmates. The grievor testified that he believed that the Union representative who accompanied him was Mr. Wakenhut. The grievor also testified that the other COs that he believed had been assaulted by Heather Murchison were CO Paul Ewing, while on hospital escort duty and CO David Bowman while on a unit. He also testified that there were at least a dozen who had been threatened by Heather Murchison and would not work with her. He said there were numerous complaints but the ORs that they filed are all missing. He said that the female CO he referred to as having been assaulted was CO Wiggins. As he understood it, CO “R” brushed her feet off a desk. She complained, and he was suspended for months and then put on straight nights. The grievor also testified in his re-direct examination that Mr. Warren Guhbin was - 21- present when David Murchison came in and loomed over the grievor. At the time when the grievor gave his evidence, he believed that Mr. Guhbin was a manager. As to being followed and approached two times outside of the workplace, it was by Lieutenant Darren Jones who was part of the institution’s security team. The grievor said that Jones asked him what was happening with him. The grievor found that to be odd because Jones should have known the grievor’s status because he was attached to security. [62] The Union called the following witnesses in addition to the grievor: Rick Wakenhut, Marc Strickland, Chris Grover, Paul Ewing, Mike Brophy, Doug Bowerman, Bill Yole, Ian Holman, Frank Digiulio and Tiffany Wiggins. [63] Mr. Wakenhut was a retired CO at the time he gave his evidence. His last ten years were spent at Maplehurst and for two of those years he was the president of the Local Union (in 2013 and 2014). He had also served as a steward. He worked with the grievor in Unit 9 for four to five years. He knew the grievor, Heather Murchison and David Murchison. He testified that he was present at the beginning of the incident in 2010 between the grievor and Heather Murchison along with Chris Grover, Mark Strickland and Lieutenant Lacoursiere. Wakenhut testified that Heather Murchison came onto the Unit, which was odd because she didn’t belong there. She began arguing with Marc Strickland about a four-hour overtime shift. The argument became quite heated. Mr. Strickland told Ms. Murchison that he did not know what she was talking about and to stop talking to him. Mr. Wakenhut testified that Ms. Murchison then turned her attention to the grievor. Their argument got quite heated. She called the grievor a jerk and kicked his chair. Mr. Wakenhut retreated to the module so as not to be a party to two bargaining unit members arguing. He said that as he left, he turned when he heard the grievor say, “stop hitting me”, seeing Ms. Murchison hitting the grievor with a rolled-up bundle of paper. At no time did he see the grievor touch Ms. Murchison. Mr. Wakenhut also testified that he saw Lieutenant Lacoursiere standing outside the module asking to be let in. Lacoursiere was said to be the manager; he did not ask Mr. Wakenhut to write an OR. [64] CO Wakenhut said that he had spoken to DS Marchegiano numerous times about issues with staff. He recalled speaking to him about Heather Murchison putting in her annual post-pick for Unit 8 Video Officer, which would require her to go onto Unit 9 to retrieve inmates for video court appearances. Although he was concerned about further confrontations between Heather Murchison and the grievor, he told DS Marchegiano she had the seniority to be given the position. DS Marchegiano said that she would be told to just do her job and to stay away - 22- from the grievor. Wakenhut did not prepare an OR regarding this; it was just one of numerous informal conversations he had had with Marchegiano. [65] Mr. Wakenhut was also asked about the LIR. He testified that he did not know it had been undertaken, had not been interviewed in connection with it, nor did he receive a copy of it. He did not know that the report had made findings of misconduct against David Murchison. When asked about the grievor’s WDHP complaint dated July 15, 2014, Mr. Wakenhut testified that he spoke to DS Marchegiano telling him that there was provocation of the grievor by David Murchison. Marchegiano was said to have told Mr. Wakenhut that Heather and Dave Murchison would be spoken to. However, he did not know if that had taken place because the Union had been told that they were not entitled to know such outcomes. Mr. Wakenhut testified that he had been told about the incident in the gym between the grievor and Heather Murchison. He said that the pettiness did not make sense and that the situation that had started over a four-hour overtime dispute just grew. [66] Mr. Wakenhut was asked about the findings made in the LIR against the grievor such as leaving the module door ajar, which he said had not been enforced at that time. As to the incident involving the grievor’s participation in controlling an inmate, which was the subject of the Allegation Meeting on July 22, 2014, Wakenhut described his own participation in the matter as being central. However, he said that he was not asked to take part in any interviews or a similar Allegation Meeting. [67] Mr. Wakenhut testified that he had been involved in a situation with Heather Murchison when she failed to control a group of inmates under her supervision, which required him to take over. She later told him that she didn’t appreciate his intervention to which he replied that he did not care what she thought; she should just take charge of the inmates under her supervision. He also testified that he recalled incidents between Heather Murchison and other COs, Paul Ewing and Dave Bowerman. It was Mr. Wakenhut’s evidence that staff would refuse to do escort duty with Heather Murchison because of her unsafe work practices. He said there were other incidents involving her and other staff; he testified that it was a problem. He said that he had met with DS Marchegiano several times because of increasing problems with Heather Murchison. He could not recall whether such meetings were before or after David Murchison’s threat against the grievor. He reiterated that there were numerous such meetings with DS Marchegiano. One area of concern was her desire to be posted to scheduling. He testified that no one wanted her there, including DS Marchegiano. However, - 23- Mr. Wakenhut told DS Marchegiano that he had no choice but to post her there because of her seniority. [68] Mr. Wakenhut testified that he couldn’t recall all the meetings he had regarding the grievor and Ms. Murchison because there were many informal conversations with Mr. Marchegiano and even with DS Janet Gautier. He said that Heather Murchison caused trouble wherever she went. He testified that he once suggested to Mr. Marchegiano that Heather Murchison be sent to the Vanier Centre for Women as a cooling down period. Mr. Marchegiano was said to have declined because it would just be a bigger problem because she would grieve. [69] In his cross-examination Mr. Wakenhut testified that CO Badger told him of David Murchison’s confrontation with the grievor a few days after it occurred. He was not being asked to take any action. He testified that he might write an OR on his own initiative to pass on information such as a shiv being found on a Unit or depending on the severity of a situation. He said that he was a subject officer in the matter that the grievor was required to answer to when it was revived in June 2014. He testified that he didn’t recall being re-interviewed at that time. He also said that he did not receive a copy of the LIR in this matter because the Union was never sent copies of such reports. Regarding the gym incident between the grievor and Heather Murchison, he believed that he told the grievor that they had to inform Mr. Marchegiano since it was a new incident. He confirmed that Ms. Murchison was posted to Video Officer because of her high seniority. He said that he had had very little to do with David Murchison directly. In his cross- examination Mr. Wakenhut said that he would meet informally with DS Marchegiano at least four to five times per week, usually in the parking lot before the shift began. He described his relationships with DS Marchegiano and DS Gautier as good ones. His meetings were generally informal conversations intended to head off problems. He confirmed his evidence in chief that DS Marchegiano told him that he would speak to David Murchison regarding the allegations set out in the grievor’s WDHP Complaint of July 15, 2014. He didn’t follow up with Marchegiano to see if he had done as he said he would. He testified that he met less with DS Gautier and only met with Superintendent Parisotto over fairly serious issues, maybe ten to fifteen times during his tenure as Local President. There was no re-direct examination. [70] Marc Strickland testified for the Union pursuant to a summons. At the time he gave his evidence he was a CO at Maplehurst posted in admitting and discharge for the previous year. Prior to that he was posted to Unit 9 for approximately five and one-half years and in Unit 8 for approximately one-half year. He was acquainted with the grievor solely as a co-worker. He testified that he was - 24- working on the Unit when Heather Murchison entered claiming that she had missed a four-hour overtime shift. She began by yelling at him. When he told her that he did not remember receiving a call about the shift, she turned on the grievor, who said the same. Strickland testified that Heather Murchison kicked the grievor’s chair and then hit him on the head with her rolled up video remand dockets. He testified that he did not complete an OR because, “it wasn’t something we did.” He was not asked to file an OR. He recalled that he, CO Grover and the grievor were present. [71] He also testified that Heather Murchison was not directive enough in dealing with inmates. He gave as an example an instance when Heather Murchison allowed two inmates off the range when he had only called one. They immediately began to fight, and Strickland had to take down the second inmate, who had only come out to fight the first inmate. CO Strickland also testified about a second incident between Heather Murchison and the grievor. He said that it was a year or more later, “it seemed like a long time after.” He said that she approached the module and the grievor let her in. The grievor was said to have told her to fuck off a number of times after he realized that she was again bringing up the missed overtime issue. Strickland also testified that later that day Dave Murchison showed up and told the grievor he wanted to go out to the yard to talk, but Strickland took Dave Murchison’s demeanour to mean that it was to fight. Strickland and Grover stood up and said it was not the time or place, but Murchison said they should relieve the grievor to let him go; they said no. Dave Murchison blamed them for picking on his wife, Heather, then he left. They were asked to prepare ORs, which they did. In his evidence he identified his OR and adopted its contents as accurate and true. His OR reads as follows: Sir, On Friday Jan 17th, 2013 about 1430 hours at the Maplehurst Correctional Complex I was working on unit 9 as the floor officer on a T8(0745-2015). About 1430 hours CO2 Murchison came onto the unit and went directly to the module door and demanded that CO2 Plouffe who was in the module, open the door. CO2 Plouffe did and CO2 Murchison immediately began to yell to CO2 Plouffe and demand that CO2 Plouffe come into the unit yard to talk. CO2 Plouffe declined. CO2 Murchison then asked CO2 Grover and I to relieve CO2 Plouffe from his module duties so he could go out into the yard with him. We both declined. It was apparent to me that CO2 Murchison wanted to fight CO2 Plouffe. CO2 Plouffe continued to refuse CO2 Murchison’s demands. CO2 Murchison then left the module door and began to yell at CO2 Grover and I, saying that we had to stop picking on his wife. I attempted to have a discussion with CO2 Murchison that in my opinion his wife is a hazard on the unit floor and has had many issues with staff regarding how she performs on the unit. He - 25- continued to yell at me with the inmates in the day areas watching. He ignored anything CO2 Grover or I had to say and simply left the unit. About 1530 I was asked by OM16 Sawyer for a report regarding the incident. Respectfully Submitted [72] CO Strickland was not interviewed with respect to his OR and was unaware that there had been an investigation into the incident. His OR above was included as part of the LIR filed as an exhibit. [73] In his cross-examination CO Strickland agreed that in completing an OR it was a requirement to be accurate and complete. He said that if he had been asked for an addendum, he would have provided one. [74] In his redirect examination he said that his evidence in chief had been a truthful interpretation of his OR. [75] CO Chris Grover also testified for the Union. He had eighteen years’ experience as a CO, all at Maplehurst. Like CO Strickland, he had never held any Union position. He had been posted on Unit 9 for the previous thirteen years. He said that he generally worked with COs Plouffe, Strickland and Wakenhut and Sgt. Lacoursiere. He knew the grievor and David Murchison solely as co-workers. He confirmed the details of Heather Murchison coming onto the Unit in 2010, first blaming Strickland for “messing with her overtime”, then turning on the grievor, kicking either him or his chair and hitting him on the head with rolled up papers. He testified that while that was going on Sgt. Lacoursiere walked into the module. He said that Lacoursiere was in a position to witness what took place. Grover did not complete an OR regarding the incident because he was not asked to. [76] Grover also testified that he recalled an incident between the grievor and Heather Murchison in 2014 in the Unit 9 module. She insisted that she be let into the module, even though the Video Remand Officer was meant to just ask by radio for the release of the inmates that were required for the video remand process. He said that she and the grievor “had words”; he did not remember what was said, then she left. Later, David Murchison came into the unit. His evidence was consistent with his OR of that date, being January 17, 2014. He adopted his OR as accurate and truthful. It reads as follows: Sir, On Friday, January 17, 2014 I was assigned as a log officer for Unit 9 during the T7 shift at the Maplehurst Correctional Complex. At 1530 hrs. I was informed by my OM16 Sawyer to write a report of what I witnessed earlier in the afternoon. - 26- At 1430 hrs., I was sitting at the log desk in the Unit 9 rotunda when I saw C.O.2 Dave Murchison approach the Unit 9 module. He demanded C.O. 2 Plouffe open up the module door. He was yelling loudly at Plouffe and appeared to be very angry. Plouffe opened up the module door and I heard C.O.2 Murchison ask Plouffe to go to the yard several times. Murchison even asked me to relieve him. Plouffe said no several times. Then I heard Murchison say let’s do it in the module. At this point I got up from my desk to try to calm Murchison down. I said not to do anything on company property. He eventually left the module. All of this had to do with his wife C.O.2 Heather Murchison who has had many disagreements with many different staff members in the past. He said that Plouffe should leave her alone. C.O.2 Strickland and I both informed Murchison that his wife has been an ongoing issue with many staff members on unit 9 in the past. We informed him that this continues to be the issue. He didn’t seem to acknowledge anything we told him and left the unit and appeared to be in distress. Respectfully submitted, C.O.2 Grover [77] Like Strickland, Grover was not aware of any further investigation into the incident, and was not interviewed, other than being asked at the time to complete the OR. His OR above was also included as part of the LIR filed in this matter. [78] Grover testified that when he told David Murchison that “this is not the place”, Murchison asked Grover if he wanted some of this too. Grover testified that he took that to be Murchison threatening him too. Grover also explained a reference in the LIR, at page 3, to “[Heather Murchison …..], leaving the module door on the locking pin”, which he said was a common practice. Other aspects of the LIR were put to CO Grover. In that context, he said that David Murchison initiated the yelling match, threatened harm to the grievor, aggressively shook his finger at the grievor, and told the grievor “to step out of the module and settle this in the yard”. Grover took that to mean that David Murchison was physically threatening the grievor and trying to fight him in the yard. He disagreed with David Murchison’s statement to Sgt. Cicak, in the course of her investigation, which resulted in the LIR, that Murchison just wanted to talk privately to the grievor in the yard. Grover said that he personally had not had incidents involving Heather Murchison, and, although he was in the gym when Heather Murchison was said to have harassed the grievor, he did not see anything other than that the fan seemed to have been moved to a different position. [79] In his cross-examination Grover said that he was 6’3” and 260 lbs to David Murchison’s height of approximately 5’10”. He said that he wasn’t worried that - 27- David Murchison would physically harm him but that Murchison could assault him. [80] There was no re-direct examination. [81] The Union also called Paul Ewing. He was a retired CO appearing under Summons. He too had never held a Union position and knew the grievor solely as a co-worker. He testified about an incident he had had involving Heather Murchison while they were on escort duty at the Milton District Hospital. He filed an OR which reads as follows: Sir, On Friday October 25, 2013, I was assigned duty to the Milton Hospital, Room 223 with my escort partner for that day, CO H. Murchison. We were supervising [IM V]. There was a second team consisting of CO S Bailie and B Yule, who were watching another inmate in the same room. Because of a lack of space in the room, CO Bailie and myself were situated in the hall, sitting on either side of the doorway, while the other two CO’s were inside. I was sitting behind one of the crank style hospital tables that I had placed the Log Book on, along with my watch so I could put a time to the entries. At 09:33 Dr. Wong entered the room to notify [IM V] that he was being discharged. Shortly after Dr. Wong left, CO Murchison walked past me, stating that she was going to find his nurse because he needed his medication. I made a spontaneous remark saying “OK you go Girl”, never thinking it would cause the reaction it did from CO Murchison. She turned back and approached me in the hall while I was sitting. She said “Ewing you Jerk”, then kicked the bottom of the table. She started arguing with me about rules. She reached across the table and grabbed the right side of my vest by the shoulder strap, with her left hand. I told her to let go at least twice but she wouldn’t do it. I had to take her hand with my right hand and peel it off my vest. I stood up and tried to get away from her but she followed me a short distance up the hall. I turned again to try to get by and she stuck her leg out, either to kick me or hinder my progress, I’m not sure. I wanted to leave the hospital as soon as possible after this so I went to the phone by the physiotherapist’s desk, just across from my chair and called for a ride. As [IM V] had been discharged, I returned to my chair but CO Murchison was not finished with me. She stood in the doorway to Room 223 and continued to argue with me. I told her she should just go back in the room and stop harassing me. She kept calling me an idiot and claimed I was timing her washroom breaks - 28- and putting in reports about it. When I denied her allegations, she got even more irate and started calling me a liar. CO Murchison finally stopped arguing with me and returned to the room. The whole episode lasted about 10 to 15 minutes. We had to wait for the discharge papers for roughly two hours as the nurse was occupied elsewhere and during that time there were no further outbursts from CO Murchison. Once back at the institution I was still so aggravated from her treatment of me I went to the infirmary and had my blood pressure checked by Nurse Katz. She told me that it was high enough that I should have it checked out. I informed Sgt. Harris that I was going home to have it checked by my doctor and I signed out. I respectfully request that you do not assign her to me as a partner in the future as I am concerned the stress will affect my health. [82] On returning to the institution from the hospital Ewing was asked to go out with Heather Murchison again. He refused and went to the health unit, then home. He submitted his OR the next day on his return to work. He said that he did not know of the outcome, but he had heard that Heather Murchison received a five- day suspension. He had been an Escort Officer for approximately seven years, but he posted to the health unit when the job picks came up at the end of the year, because of this incident. [83] There was no cross-examination. [84] CO Mike Brophy testified for the Union. He began working at Maplehurst on December 1, 1986. He appeared pursuant to a summons, had never held a Union position and knew the grievor solely as a co-worker. At the time he gave his evidence he was working in the Crib, a laundry area; he had previously worked in other positions including in Video Remand Department, Staff Training and in Admitting and Discharge. He said that he had never had any incident with the grievor but had with Heather Murchison. [85] He testified that in or about March 2014 he, along with CO Berg, worked in the Video Remand Department. Their task was to generate the paperwork to make up the day’s Court dockets. CO Berg was backfilling the position when they were told that Heather Murchison would be replacing Berg. Brophy testified that he wasn’t comfortable with the prospect of partnering with Heather Murchison because of his knowledge of her over the years. Accordingly, he went to the administration and spoke to two Deputy Superintendents, DS Gautier and DS Marchegiano. He told them that he had no issue with training her but would not - 29- work with her. He understood that he would train her for one week and then move to Staff Training. On the day when Heather Murchison started in the Video Remand Department she arrived late, after he and CO Berg had already completed the docket preparations. In the course of her training that day she became sarcastic with Berg over the fact that she was replacing him and he would have to return to his regular position. Brophy testified that she kept going on and on; he said that Berg was becoming uncomfortable and upset as a result. Brophy testified that when he told Heather Murchison that he would be leaving after she was trained her demeanour changed. He said that she became belligerent and argumentative towards him. She would come close to him when speaking to him, clenching her fists and trembling while asking him why he was leaving. He told her that he “knew of her” and did not feel comfortable working with her given the inmates they would have to deal with. He testified that he remained calm, but she got more “excited and ramped up”. She left after twenty minutes and returned at approximately 2:00 pm. He said that that was their busiest time. She then did not return for the rest of the week. [86] Brophy testified that he then learned that she had filed a WDHP complaint against them. In the result, the allegations were held to be unfounded. About two months later Brophy was asked to, and did, return to the Video Remand Department because Heather Murchison had left to become the Video Remand Officer for Unit 8. [87] Brophy testified that the Video Remand Department (VRD) needs to stay in contact with the Video Remand Officers on the units to keep them apprised of any changes to the court dockets. To that end, the paperwork for the VRO’s was left in the VRD office. He testified that Heather Murchison prevailed upon management to have the paperwork left instead on a credenza in the hall and subsequent to that to deliver the dockets to the main office. He testified that as a result the VRD did not know if the VRO’s had not picked up the dockets until the Courts called to ask about a “no-show”. He said that if they called Unit 8 looking for Heather Murchison she would not answer so they would have to page her. If she was there, but not answering, they would have to speak to the Head Shift Officer or the In Charge Officer to pass a message along to her. [88] When the WDHP complaint was held to be unfounded, Brophy was offered mediation with her, but he testified that he was told that she had declined. He reported his subsequent difficulties with her to management but did not know if she had been spoken to by management. It was Mr. Dykstra who had said that she would be spoken to. - 30- [89] Mr. Brophy also testified about the process that a VRO would use to get the inmates who were needed for Video Remand Court. He said that if the inmate was in the day room, he would radio the module to tell the staff there that he needed to remove them. If they were in their cells, he would radio the module to have them released from their cells. [90] Brophy had also worked in the module. He said that many times he had left the module door “on the pin”; that is, not properly secured but resting on the pin of the lock. He said that to do so was contrary to the policy which required the door to be secured, but it was very commonplace to leave it on the pin. [91] There were no questions for CO Brophy by way of cross-examination. [92] CO Bowerman also testified for the Union. He had been at Maplehurst since approximately 2007. He had never held a Union position. At the time he gave his evidence he was running the Community Work Programme, which involved taking inmates out to do community jobs such as cutting church lawns and the like. He replaced CO Brophy in the Video Remand Department when Brophy left and was there for approximately two and one-half years. He worked with Heather Murchison for three months in that position. He reviewed and testified about two ORs he had filed regarding interactions with Heather Murchison. The first, dated May 2, 2014, involved the removal of an inmate to attend video remand court. Bowerman had dealt with that inmate the day prior. The inmate had been difficult and needed to be dealt with carefully due to his apparent mental health challenges. His interactions with Ms. Murchison are set out in the OR as follows: …. I proceeded to L wing and I was standing opposite Cell #10 occupied by [inmate M] with Officer Holland with Officers Arsenault and Black in the wing when Officer Murchison marched into the wing and confronted me. She began by stating that we don’t have to take this inmate to video if he was going to be a problem. I stated that I dealt with him yesterday and I would deal with him today. She then questioned me regarding CO Simms having in her possession special flex cuffs and what was she doing with them. I told her she needed to discuss that with CO Simms as I had no knowledge of what she was making reference to. Her tone was frantic. I struggled to make sense of her references to the inmate in question and to the restraints that she kept saying CO Simm had in her possession. She pressed the issue and said we needed to discuss this matter around the back of the unit. I told her I was not going anywhere with her and that I was attending to the task at hand. She then became more animated and started questioning me about Patty relieving me at 10:30. An argument began and she suddenly slapped me on the left shoulder with the back of her hand to reiterate some point she was trying - 31- to make. I told her that she had no right to touch me and that she needed to get away from me! I stepped back and repeatedly told her to get away from her [sic?], however, she continued to badger me about how she didn’t get along with Patty Simm and that I was not allowed to go! I told her that this situation was ridiculous and that I was leaving the area and that she could take the inmate to video and I left the area directly. [93] Bowerman testified that after he left the area, he went straight to the Administration Office and informed DS Gautier of the events. Gautier was said to have sent senior staff to find Heather Murchison; she was escorted into the Admin Area. Bowerman testified that he went to the Staff Training Area and used the computers there to complete his OR, which he then submitted to either DS Gautier or DS Marchegiano. He also testified that he went to retrieve the OR from the computer in preparation to give his evidence, but it was not on the hard drive. He had sent a copy to CO Brophy at the time and obtained a copy back from him for his evidence here, which he identified and adopted as truthful and accurate at this hearing. The Union said at the hearing that the OR had not been disclosed by the Employer as part of its obligation to produce documents. That submission was not subsequently disputed by the Employer. [94] Bowerman testified that he later spoke to Marchegiano about the incident. Marchegiano told Bowerman that they had reviewed the video available and concluded that Murchison had hit him in a manner consistent with getting his attention. Heather Murchison was said to have been suspended with pay pending the investigation of this incident. She returned to work to the position of Video Remand Officer in Unit 8. Bowerman’s role at that time was in the Video Remand Department, which, as Brophy testified, required interaction with the VROs such as Heather Murchison. Bowerman described their relationship in that regard as a “circus”. For example, he testified that when he would telephone her she would slam the phone down in his ear. He said that he spoke to Marchegiano about that and other issues he had with her up until she retired, approximately one year prior to him giving evidence at the hearing. He was told by Marchegiano that she would be spoken to, but Bowerman did not know if that had happened. [95] The second OR Bowerman testified about was dated April 15, 2014, and it catalogued numerous issues that he had with Heather Murchison while they worked together in the VRD. That OR had been disclosed by the Employer as part of the production of documents in this matter. However, it was incomplete; it appears to be missing its third page on which he testified were the details of the events of April 15, 2014. That OR bears a stamp on its first page showing it was received by “Security Investigations” on July, 10, 2014 and was signed and - 32- stamped on page 2 as received by Janet Gautier, Deputy Superintendent Administration. Bowerman’s evidence was that Heather Murchison was incapable of doing her job to the extent that she was creating safety issues for the staff. It was interfering with the operations of the Courts and he felt duty- bound to inform management of the situation. Finally, in his direct examination he described the process by which the VRO had inmates released for video remand appearances. For Unit 8, 9 or 10 that involved asking a floor officer to radio the module to open the wing door or to open specific cells. [96] In his cross-examination CO Bowerman said that he was obliged to file the OR dated May 2, 2014 detailing that CO Murchison had struck him; he was not asked to file the second OR dated April 15, 2014. [97] With respect to the May 2, 2014 incident, he said Murchison struck him with a backhanded slap. He said that he did not seek medical attention, nor did he take time off as a result. He confirmed his evidence given in his direct examination that he reported it to DS Marchegiano, who said that he would speak to CO Murchison, but Bowerman did not follow-up with Marchegiano to ask if that had happened. He also gave more detailed evidence of the procedure for retrieving inmates for video remand court. He said that if the inmates required were not in their cells they would be in the “wedge” so he would get the Unit Officer to open the “wedge” exterior unit door. If they were all in their cells, he would proceed to the cell door of the inmate and the Unit Staff at the door would radio the module to open the cell door. He said that the person with the radio was your life-line and since there were two occupants in the cell, he would tell the module the name of the inmate he wanted so as not to put the wrong inmate in front of the judge. [98] The Union also called CO Bill Yole to give evidence. He had been a CO at Maplehurst for 28 years. He had held various Union positions over 25 of those years including Steward, Chief Steward and Co-Chair of the Joint Health and Safety Committee. At the time of the hearing he was a Steward. He was never directly involved with the instant grievances. He said that he knew the grievor, CO Bowerman and CO Ewing. He testified that he was present with CO Ewing when there was an incident involving Heather Murchison, which Ewing testified about (supra). That day there were two inmates requiring escorts. They were both in the same hospital room. Accordingly, there were two COs in the hospital room in control of the inmates, one for each inmate, and two COs outside the room in the hallway to take care of paperwork such as logging the comings and goings of the Health Care and Professional hospital staff. CO Yole was in control of the inmate in the room and his partner CO Steve Bailey was in the hallway. - 33- CO Murchison was also in the room, furthest from the door; anyone coming into the room would have to walk by CO Yole. [99] CO Yole testified that Murchison was continually going out into the hallway and having words with Ewing, accusing Ewing of keeping tabs on her movements; that is, putting a clock on her. She was pointing and raising her voice at Ewing. CO Yole submitted an OR dated October 28, 2013 relating to the events that evening, which reads in part as follows: Due to the size of Milton District Hospital Room #223, the Primary Escort Officer resides directly outside the hospital room, in the hallway, within sight line and close proximity to the Secondary Escort Officer. The Secondary Escort Officer maintains direct supervision of the secured inmate. Approximately 1015 hours CO2 H. Murchison entered into a discussion of which the subject matter I did not know, with CO2 P. Ewing at the entrance to room #223. CO2 H. Murchison was standing at the entrance while talking in an argumentative tone with CO2 P. Ewing whom was seated with a small table and log book separating them. I was seated within room #223 approximately five feet away. As the discussion progressed in length (10 minutes) and volume, CO2 P. Ewing tried numerous times to calmly persuade CO2 H. Murchison to return to room #223 and leave him alone. CO2 H. Murchison ignored these attempts to difuse [sic] the situation. I then notified my partner CO2 Bailey that I had to use the washroom and exited room #223. At this time I observed CO2 H. Murchison leaning over the table separating her and CO2 O. Ewing while arguing/stressing a point. I moved to approximately ten feet away, and observed for a moment and then continued to the washroom in an adjacent hallway. As I moved to the washroom I heard a commotion and the sound of Velcro being pulled apart. I quickly looked in the direction of room #223 and observed CO2 P. Ewing making a phone call on the hospital phone, I continued to the washroom. Upon returning from the washroom, CO2 H. Murchison had returned to (within) room #223 and had quieted down considerably. Further comment that continued by CO2 H. Murchison (at a lower tone), was ignored by CO2 P. Ewing. Both officers returned to there [sic] duties, with no further occurrence. [100] CO Yole also recounted an incident between CO Bowerman and CO H. Murchison on January 18, 2017. Yole said that Bowerman and Heather Murchison had “issues” with each other and Yole tried to minimize their - 34- interactions. The issues that day were summarized by Yole in an OC dated that day which reads as follows: On Wednesday January 18, 2017 I was on duty at Maplehurst Correctional Complex as Crib Officer from 0645 to 1515 hours. Approximately 0850 hours I was in the Crib Office, while in care, custody and control of five inmate workers from Unit 7, when I heard my name being called out from someone at the Crib Main Entrance. I exited the Crib Office and met CO Bowerman approximately 15 feet inside the Crib work area. CO Bowerman had a discussion with me regarding two pages of emails that had been forwarded to him concerning a request from CO Murchison to return a number of ‘new thermal long-johns”. He pointed out that the email was sent to Ms. E. James and other administrative staff, identifying that he (CO Bowerman) may have information concerning the purchasing of the thermal underwear. During this time, CO Murchison chose to secure herself in the Crib Office by locking the door. CO Bowerman continued to discuss the emails and the reason for his implication in the purchases. At no time did CO Bowerman have any interaction with CO Murchison. As the discussion continued, I was paged to contact OM Harris at EXT 7343, and within 30 seconds CO Bowerman was paged to do the same, contact OM Harris at EXT 7343. CO Bowerman and I inspected the “new thermal underwear packages” and then CO Bowerman exited the Crib Work Area. I then made a phone call to OM Harris who summoned me to come to her office. I then informed CO Murchison that I had to go to the General Duties Manager’s Office (GD Office). I saw CO Bowerman in the Industrial Corridor and accompanied him to the GD Office, meeting with OM Harris. CO Bowerman gave a (summery) report to OM Harris and showed her the two pages of emails in question. CO Bowerman stated that he wanted to have a meeting with the Deputy to put an end to these types of issues between himself and CO Murchison. I then accompanied CO Bowerman to the front Administration Office and met with Deputy C. Marchegiano and Deputy F. Dhami of whom requested this report. Respectfully Submitted. [101] Yole testified that when he and Bowerman went to see DS Marchegiano, Bowerman gave Marchegiano a full description of what had transpired. Yole testified that Marchegiano then said words to the effect of “Let’s take our gloves off and put everything on the table. How do you deal with a thirty-plus year employee that has been coddled and protected? What would you like me to do?” To which Yole replied that if discipline is warranted, discipline is needed. Yole - 35- told Marchegiano that he would submit a report, which resulted in the OR set out above. Yole testified that Deputy F. Dhami was a witness at the meeting. [102] Yole was asked why he had not included details in his OR as to what had been said at the meeting. Yole testified that he distinctly recalled what had been said by Marchegiano, but that the OR is to speak to what took place, the discussion of what to do about it does not go into the report. That is, a discussion with two Deputies of what they would do about it was not his job. He said that he’s been in the Board Room and Deputies’ Offices. He said that discussions are had but never put pen to paper. He said that he was not the type to write things down in order to throw someone under the bus. He testified that Marchegiano should have had a secretary, and Deputy Dhami was that. [103] At the close of Yole’s direct examination the Union submitted that the documents tendered by CO Yole were provided by him to Union counsel that day. That is, they were not provided by the Employer as part of its production of documents. [104] In CO Yole’s cross-examination he was asked if he had filed complaints against CO Murchison. He said that he had not and did not know if she had filed any against him. Yole said that he worked with Heather Murchison for five months. She was the senior officer in the laundry room. Yole said that he did the decision-making, while she dealt mostly with repairs of torn clothing. He said that he prepared a spread sheet laying out tasks for the Units; she had used slips of paper. He was cross-examined about the discussions with DS Marchegiano, CO Bowerman and Deputy Dhami. He said that it was like Marchegiano was at a loss to know what to do. He said that Murchison was a thirty-plus year individual and “she had been taken care of; if they had treated her correctly we wouldn’t be there.” He said that when she had locked him out of the crib office, on the pretext of being in danger, it was surprising. Then she called the Shift In-Charge Manager. He said that the emails sent to Ms. E. James and other admin staff, implicating Bowerman in the disappearance of the thermal underwear, was an accusation that Bowerman knew what had happened to them. [105] He was asked if he had had other suggestions for Marchegiano, other than disciplining her. His answer was that it was not his place, it was for management to decide. Yole was asked in cross-examination if Marchegiano’s statement, “Let’s take the gloves off” was the same as speaking off the record. Yole replied that it was something like that, or let’s not beat around the bush. He said that Marchegiano was at a loss for words. [106] There was no re-direct examination. - 36- [107] CO Ian Holman also testified for the Union pursuant to a summons. He had worked at Maplehurst since 2007 having previously worked at Guelph with a break in service in between the two locations. He had not held any Union positions and only knew the grievor as a co-worker. He knew Heather Murchison and had an incident with her that resulted in him filing an OR dated March 27, 2014. That OR reads as follows: Sir, On Thursday, 27 March 2014, about 1420 hours, at Maplehurst Correctional Complex, I was performing assigned duties as the Video Remand Float Officer. This job entails assisting any units who have a large number of courts, escorting inmates to and from video courts/legal aid interviews, and whatever other assignments that are encountered with video remand during the shift. About 0855 hours today, I had just escorted an infirmary inmate down to the A and D video for a 0900 hr video court appearance when the A&D15 video suite court camera on [sic]. As CO2 H. Murchison was still typing up this day's video court dockets, I took the inmate who had a Milton video court appearance into the video suite and completed his video appearance. As this court was finished, Scarborough video court came on in the A&D video suite. I then took the appropriate inmate from the holding cell and completed his video appearance as well. I then escorted the infirmary inmate back to his unit. Approximately 1415 hrs I was again assisting in the A&D video area. At this time I notice that the Kitchener court docket had listed the wrong video suite in which the court would call into. I then tried to explain to CO Murchison, who’s responsibility is to do the daily court dockets, that there were other courts for this date that also had the wrong video suite numbers. This is an important part of the docket procedure, as the courts know where to call as well as it avoids courts overlapping in each other in the same video suite. She told me that I was wrong, and that she put the right video suites for the courts. Having done the court docket job over the past 5 years, I again tried to explain which suite was which. After finally showing her the numbers over top of each video suite, she finally admitted that she had the suites mixed up. Then the Brampton video court called in to do their video appearances. Although this is the A&D video officer’s responsibility to be in the suite for these appearances, CO Murchison made no effort to do this. I then went and completed the Brampton video courts. About 1420 hrs the video machine came on for another court. I immediately noticed that this was Hamilton court, and they were early for their assigned court time. CO Murchison then stood in front of the video screen to address the court. I whispered to her that this was Hamilton court, as it was obvious she did not know that. CO Murchison made several “oh” and “ah” comments before asking which court this was. It was very unprofessional as there was a full courtroom and the Justice of the - 37- Peace who were viewing this. I then told the Justice of the Peace (JP) that we were expecting them at their normal 1530 hr time slot, and that no one from the court house had called to say they would be calling in early. I then asked the JP that if he could give us 5 minutes that I would get the required inmate and contact the other units, so those officers could do the same. The JP thanked me for doing this. I then asked CO Murchison to call the Unit 10 video officer to relay this message, and told her that I would go to unit 1 segregation to get the inmate that we required. When I arrived in segregation, I was told that the needed inmate was moved to Unit 9. I then called the Unit 9 video officer CO Tilley and explained the situation. CO Tilley assured me that he would get the inmate and take care of the Hamilton video court. I then returned to the A&D video area. As I entered the video office, I attempted to call the Hamilton court to let them know that the inmate had moved to a different unit and for them to call that unit. CO Murchison confronted me and told me that ‘this was her area”, and that I was “only a casual and I was the float officer”. I tried to explain that I was doing this to aid her because she did not know how to handle the situation with the court in a professional looking way. She again angrily stated “this is my area”. I did not let her finish what she was saying, as I’m aware she tends to get confrontational, and I did not want to engage in that type of conversation. I told her that I would be leaving the area and going to another unit to assist. Although I am “only a casual”, I have been doing all aspects of the video court jobs for 5 years. I have always gotten along with everyone who does this job, and have in fact trained many fulltime officers who come into this area to work. I was only trying to assist her, as it was obvious she did not know how to handle this situation. It is important to keep professionalism with the courts and the Justice of the Peace’s as it reflects poorly on this institution otherwise. (sic) [108] CO Holman testified that the OR was accurate, truthful and he adopted it as part of his evidence. He testified that CO Bowerman had told him that Murchison was writing him up. It was for that reason he wrote the OR and submitted it to DS Marchegiano, who read it, put in on his desk and told Holman that he had nothing to worry about. Holman also testified that he tried to get a copy of his OR for these proceedings and was told by Sgt. Essery that “it wasn’t in the files”. Essery told him it had been “pulled” and none of the Sgts in that administrative area had been there for more than one year so they had no recollection of it having been pulled. He testified that he received the copy filed as an exhibit in these proceedings from counsel for the Union. [109] Holman testified that Murchison commonly became angry to the point where he would remove himself from the situation. Holman also described the process for retrieving an inmate who was needed for video remand court. He said that the Unit is not unlocked until 9:30 am. If the inmate is required before then he would - 38- get the CO at the wing to call the module to open the cell. If the inmates were out of their cells, he would get their attention or radio the control module to, for example, open Wing A. [110] Under cross-examination, he said that to retrieve an inmate he would sometimes just stand at the door, the Unit CO would open the door, he would then call the inmate’s name and he would come forward. He testified that one could not go in by themselves so they would need a second CO to perform the task. [111] In his re-direct examination Holman clarified that the process which he had explained in cross-examination was used when the inmates were in the day area. If the inmate was in lockdown Holman would radio the control module, have them unlock the cell and yell the name of the inmate who would then come to the wing door where he was. [112] CO Frank Digiulio testified for the Union pursuant to a summons. He was in his fifteenth year at Maplehurst, having previously worked out of province. He was seconded to work for the Union in grievance administration for a time. He only knew the grievor as a work colleague. [113] Digiulio testified that he knew David and Heather Murchison and could recall two meetings with the grievor and DS Marchegiano where the subject matter was David and/or Heather Murchison. The first was January 20, 2014 and the second was May 7, 2014. He kept notes of the meetings, which were entered as exhibits. He testified that on January 20, 2014 he met with the grievor and DS Marchegiano in DS Gautier’s office. At the meeting, Marchegiano wanted to know what steps the grievor wanted to take given that mediation was not possible. Digiulio said that they were told that management was going to look into the incident between the grievor and David Murchison. The grievor was not going to attend work and Marchegiano would cover the grievor’s shifts until Management spoke to David Murchison. Digiulio was never advised of the outcome of any investigation of the situation between the grievor, David Murchison and Heather Murchison, nor was he ever given a copy of the LIR. [114] The second meeting, on May 7, 2014, was also attended by the grievor, Digiulio and Marchegiano. Digiulio testified that it was a very short meeting and the notes he had were not legible. He had no independent recollection of that meeting. [115] Under cross-examination he testified that Mr. Wakenhut was president of the Local and Warren Dubbin was the vice-president of the Local Union in 2014. - 39- [116] In re-direct examination he testified that at the time of the hearing Mr. Dubbin was a member of Management and had been for approximately six months. [117] CO Tiffany Wiggins testified for the Union pursuant to a summons. She said that she only knew the grievor as a co-worker. Wiggins gave evidence regarding an incident involving a co-worker, CO “R”. She said that on October 23, 2013 she was sent to a Unit after muster to assist in inmate searches. She was tying the lace on one of her boots, supporting the sole of her boot on the side of a desk. CO “R” took exception to that, he was sitting on the opposite side of the desk; he gestured to her foot and said, “You fucking idiot. This is not your home. You are a fucking idiot.” She told him to shut up and said if she wanted his opinion she would ask for it and continued to tie her laces. He came around the desk, threw her foot off of the desk causing the chair to swivel with Wiggins in it. She testified that the two of them got into a screaming match with CO “R” continuing to swear at her. Wiggins went back to her Unit and complained to her sergeant. She testified that to her recollection her Unit Sergeant was Rusty Thompson; she prepared an OR and gave it to him. She understood as a result that CO “R” received a twenty-day suspension and was transferred to a steady night shift on the criminal convictions side of the institution, the part of the institution that housed convicted and sentenced inmates. She never worked with him again. The effect of his transfer was that there could be no further contact between them. She did not receive a copy of any investigation report and had never been told by Management that she would not be working with him again. She also testified that after she was summonsed to testify she unsuccessfully tried to obtain a copy of her OR. She was told by Sgt Essery that the OR could not be found in the institution’s records. [118] Under cross-examination she said that she was never told by Management the outcome of the investigation, was never told “officially” what the discipline was nor why CO “R” was transferred to the criminal convictions side of the institution. [119] There was no re-direct examination. [120] Counsel for the Union then renewed its request for disclosure from the Employer of any arguably relevant materials relating to this incident. It had previously made this request, which had been denied on the basis that there was not a sufficient nexus with the facts in issue in the instant matters. Counsel for the Ministry strongly objected to the renewed request on the basis that Wiggins had no personal knowledge of the reasons for CO “R”’s transfer nor his purported discipline. It was submitted that Wiggins had nothing to do with Heather - 40- Murchison. It was also submitted that such an order would prolong the hearing and add nothing to the outcome. In reply, it was submitted that the cross- examination was itself indicative of the relevance of this issue to the facts in issue in the instant matters. It was said that there had been a differential treatment of the grievor as established by Wiggin’s evidence. It was submitted that it was a direct comparator and the materials sought were arguably relevant. [121] I ruled that there was now a nexus between the Wiggins events and the facts in issue in the instant matter. Any materials relating to the Wiggins’ incident were arguable relevant and were to be produced. [122] Prior to the Union closing its case, it advised that it was contemplating calling two other witnesses. On the resumption of the hearing, it advised that it had elected not to call those witnesses. It also advised that, further to my order set out above, it had received the documents relating to CO Wiggins’ WDHP complaint. [123] At this juncture the Union sought a ruling that the documents were not admissible. It relied on the late delivery of the documents and a submission that the documents produced contradicted some of its witnesses. [124] As to the first point, the Union submitted that numerous days were spent at the beginning of the hearing dealing with the Employer’s obligation to produce documents, which resulted in decisions of November 22, 2017 and January 16, 2018. [125] As to the second point, that some of the documents contradict Union witnesses, the Union submitted that none of the references to the Union witnesses to be found in the Wiggins material were put to those witnesses. Accordingly, the Union says that to that extent there is unfairness to the witnesses because they might have been able to explain any discrepancies on the basis of the Rule in Brown and Dunn. That is, the witnesses were passed by. (See Brown v. Dunn (1983), 6 R. 67 (H.L.) at pp 70-1, referred to pages 146-147 in Advocacy, Views from the Bench, Robert F. Reid and Richard E. Holland of the Supreme Court of Ontario, (1984), Canada Law Book Inc., Aurora, Ontario). [126] The Union submitted that it was an unusual motion made in unusual circumstances. It noted that multiple disclosure orders had been made in favour of the Union; it had closed its case; further, some of the emails in the documents were from Heather Murchison, in respect of whom there was no undertaking from the Ministry that she would be called, and the documents indicate that David Murchison may have made complaints against some of the Union witnesses, - 41- who had not been given an opportunity to answer. The Union said that there was nothing else that it could have done to get disclosure, and despite the Ministry’s failure to produce all arguably relevant documents, the Union had proceeded with its case only after having put the Ministry on notice that it would oppose any subsequent attempt by the Ministry to rely on any such documents. [127] The Ministry submitted that it spent little time in cross-examination because it dealt only with the discrete events that had been led in-chief. It said that it did not intend to contradict any Union witness. It submitted that the difference was that these documents dealt with complaints arising from Ms. Murchison against others. [128] I had an opportunity to review the documents, which manifestly included counter complaints by Mr. and Ms. Murchison against some of the witnesses, none of which counter-complaints had been put to Union witnesses. [129] I ruled orally that I would not entertain the documents. This motion was brought by the Union on March 15, 2019 on the fifteenth day of hearing, over a year after my two orders that the Ministry produce all arguably relevant documents. On the two subsequent hearing days following the January 16, 2018 order, being February 1 and 7, 2018, disclosure was still outstanding. The Union and I were left with the Ministry’s simple assurance that it would “work diligently to comply”. [130] Any counter-complaints made by David or Heather Murchison against the Union witnesses would inevitably call into question the witnesses’ relationships with them. The Ministry was obliged to question Union witnesses in their cross- examination about any such matters upon which the Ministry would seek to lead evidence and was bound by my Orders to produce all arguably relevant documents. [131] In all of the circumstances here, the Union witnesses had not been faced with questions that they should have been asked by the Ministry, thereby they were not given the opportunity to provide evidence in their defence. Further, in my view too much time had gone by between the orders compelling production and the Ministry’s belated compliance. The rule in Brown v. Dunn, supra, exists to prevent such unfairness to the witnesses, and it was also clear that the probative value of such evidence was outweighed by the prejudicial effect of the inevitable lengthening of the proceedings. - 42- [132] The Employer called the following witnesses: Tom Dykstra, Angela Cicak, Mark Parisotto and Janet Gautier. Noteworthy by their absence from the proceedings were DS Chuck Marchegiano and DS F. Dhami. [133] Tom Dykstra testified for the Employer. He was Deputy Superintendent of Operations and subsequently became Deputy Superintendent of Administration, after Janet Gautier left the position. As DS Operations he oversaw the operation of the facility. As DS of Administration, his duties included overseeing security, scheduling, conducting and assigning investigations and reviewing Local Investigation Reports (LIR) for signing off. [134] Dykstra explained the annual “post-picks” whereby COs would select their preferred posts, which were then assigned by seniority. Each unit in the institution has its own video remand post; there was also one in Admitting and Discharge. He testified that management has the right to over-rule the employee’s pick, but it is rarely exercised. [135] Dykstra also testified about the allegation meeting held in July, 2014, involving the grievor. The incident at issue had taken place in September 2013. Dykstra testified that the delay was the result of a backlog of reports and investigations because they have to be signed off before going to the Regional Office. He said that employees would receive a copy of their report but not of the LIR. He did not recall any of the details of the allegation meeting; nonetheless he testified that he did not order the meeting in order to harass the grievor. [136] Dykstra also testified about the incident between Bowerman and Heather Murchison on May 2, 2014 when Murchison slapped Bowerman on the shoulder. Dykstra said that Murchison was suspended with pay for 2-3 months while the matter was investigated; management then decided that the allegation was unfounded. He did not believe that she was disciplined. As to her return to work, Dykstra said the details were discussed between him, Superintendent Parisotto and DS Marchegiano. It was decided that she would return to the scheduling assistant position, not to the Video Remand position because she had been off for a long time and there had been ill feelings. He said that it was an attempt to defuse the situation and reduce tension. Further, she would not have to be in “the back end of the jail” thus avoiding her getting into situations with Bowerman, the grievor and other staff. [137] As to the Ministry of Labour’s investigation and report, Mr. Dykstra said he met in his office with the inspector and Chuck Marchegiano. They were given an overview of the situation by the inspector and were asked if the institution had a - 43- workplace violence policy. They did not speak privately with the inspector, and they received no further follow-up from the inspector. [138] Mr. Dykstra reviewed an OR filed by the grievor relating to an incident between him and Heather Murchison after she was moved to her home position of Video Remand Officer after a number of months in scheduling. He said that the decision to return her to her home position was taken after Dykstra had had numerous conversations with Heather and David Murchison in which they said Heather had been badly treated. Dykstra testified that he told them that he disagreed with them. Ms. Murchison spoke to Superintendent Parisotto and was eventually returned to the Video Remand position. [139] Dykstra also testified about the incident between the grievor and OM16 McCabe wherein McCabe prevented the grievor from using the Unit 8 shared lunchroom to write a report. Those details are set out in exhibit 3, tab 15, which is the grievor’s OR regarding that incident. Dykstra placed the event as being at the time Heather Murchison returned to the Video Remand position. He said that at that time he spoke to Heather Murchison about her return. He testified that he told her that she and the grievor did not have to be friends, but they had to work together and be professional. He testified that in addition to the lunch room shared by units 8 and 9, they might encounter each other at staff training, ICET training and block training. [140] Under cross-examination, Dykstra reviewed the history of the incumbents of the various Deputy-Superintendents’ positions while he was there; including that the Security Manager reported to the Deputy Superintendent Administration. He testified that the Deputy Superintendents met daily with the Superintendent to keep apprised of anything important enough that they should know about. He also testified that Local Investigation Reports (LIR) were completed by the Security Manager. The LIRs would then go to the Deputy Superintendent Operations for review and then to the Superintendent. It was the Deputy Superintendent Administration that would assign the Investigator, and, depending on the importance, would assign it to the Security Manager. The Security Manager would not initiate a LIR. [141] In his cross-examination, Dykstra continued to have little recollection of the circumstances surrounding his letter of June 27, 2014 to the grievor dealing with the alleged use of force on September 9, 2013. Dykstra could not dispute the grievor’s account that he received the letter in his mail slot the week before the meeting, although Dykstra said that in the normal course he would have a manager hand deliver such a letter and have the staff member sign for it. He - 44- didn’t recall who attended the meeting nor any subsequent discussion with the grievor. He did vaguely recall the grievor being told in the meeting that he had not submitted an OR about the incident, and the grievor saying that he had done so and had submitted an addendum to the OR. He could not challenge the grievor’s account, could not recall that his letter came on the heels of the grievor filing two WDHP Complaints and disagreed that it was reasonable for the grievor to have seen the letter as a reprisal. [142] As to the LIR prepared by Sergeant Cicak, Dykstra testified that he thought he had become aware of it but was uncertain as to when or by whom. He couldn’t dispute that neither the grievor nor the Union had ever been made aware of it. Dykstra also had no recollection of reading the grievor’s email of August 13, 2014 asking when his WDHP reports of July 14, 2014 would be addressed with him. When Dykstra was asked if Superintendent Parisotto was present when he met with Heather Murchison, he said that he did not think so, but when it was put to him that he had testified in chief, the previous day, that Parisotto and Marchegiano were present, he changed his answer to be that Parisotto was indeed present. He testified that if he had made notes at the meeting, he had given them to Marchegiano, but he did not recall whether he had made notes. [143] Dykstra testified in his cross-examination that neither DS Marchegiano nor DS Gautier told him that there would be no contact between the grievor and Heather Murchison, and that he was never advised of a no-contact ban. [144] As to his evidence-in-chief that Heather Murchison was in scheduling for a number of months upon her return to work from a paid suspension, under cross- examination he agreed that that might not be correct. [145] He also had no recollection of taking any steps regarding the grievor’s OR of August 14, 2014 detailing that Heather Murchison had “glared” at the grievor. He did not agree that the grievor had not been provided with a safe workplace vis-à- vis Heather Murchison’s actions. With respect to the Ministry of Labour’s enquiries, he testified that, in essence, he simply believed that the institution was following its workplace violence policies, because they were complying with their obligations under the Act. He also did not know if he knew of Cicak’s LIR at the time of the Ministry of Labour’s enquiries. Dykstra agreed in his cross- examination that as of the grievor’s OR of September 10, 2014, Dykstra knew that the grievor believed that there was a contact ban between the grievor and Heather Murchison, yet he did nothing to investigate, nor did he recall asking Marchegiano, Parisotto or Gautier about such a ban. Under cross-examination he vaguely recalled being advised of the grievor’s report that OM16 McCabe - 45- prevented the grievor from using the shared lunch room and of speaking to OM16 McCabe, but had no recollection of telling her what, if any, action to take. [146] Dykstra also “vaguely” recalled reviewing the grievor’s OR of September 17, 2014, in which the Subject line reads, “No Contact ban broken again” and which recounted yet another incident between the grievor and Heather Murchison. Again Dykstra said that he did not ask Parisotto, Marchegiano or Gautier if there was such a ban and did not recall speaking to the grievor about whether there was a “no contact ban”. He testified that he did not speak to Marchegiano about the grievor’s allegation, set out in that OR, that “I feel (Chuck Marcheganio (sic)) has failed me once again for not providing me with a harassment free work environment, or has lied to me again about speaking to CO (Heather Murchison) about leaving me alone and to stop entering my unit while I’m working”. Dykstra said that at the time he was the DS Administration and that “in the pecking order” he was senior to Marchegiano. Dykstra confirmed his previous evidence that such an OR would go first to the DS Operations and then to Parisotto, so he would have assumed that Parisotto would have dealt with it, yet Dykstra had no knowledge of what if anything Parisotto had done with these serious allegations. [147] Dykstra agreed that in chief he had testified that Heather Murchison could be transferred to another institution, but “that was not on the plate”. He said in cross-examination that he had never discussed that with anyone and was unaware that CO Wakenhut, as Local Union President, had suggested that to Superintendent Parisotto. He agreed that he had no evidence to the contrary. Dykstra said in cross-examination that he was never aware of the incident, involving CO Wiggins, which resulted in a CO being suspended and put on steady midnights for pushing CO Wiggin‘s feet off a desk. He was not aware of the initial suspension with pay nor its subsequent extensions. He said he had never seen the documents regarding the case notwithstanding that some were initialled by Superintendent Parisotto at the time that he, Dykstra, was DS Operations. [148] Dykstra testified that he vaguely remembered CO Brophy’s complaint that Heather Murchison was incapable of fulfilling her responsibilities with respect to organizing and distributing court dockets. Dykstra testified that he spoke to CO Heather Murchison about the need to follow the routine and not change the process. He never got back to CO Brophy. [149] In his redirect examination, Dykstra said that he did not recall doing any additional interviews regarding the Use of Force issue that was revisited at the allegation meeting in July 2014 against the grievor. He said that any decision on - 46- that issue was owned by Parisotto. He testified that he knew of the grievor’s WDHP complaints but did not recall seeing them himself nor when he learned of them nor whether he learned of them before or after the meeting with the Ministry of Labour. He testified that employees are not normally advised of an investigation that leads to an LIR and may or may not be told of the outcomes, depending on the case. Regarding the grievor’s allegation in his OR of August 14, 2014 that he was again not provided with a safe workplace, because Heather Murchison had glared at him, Dykstra said that he takes all allegations seriously but in that instance, Heather Murchison was just doing her job. Dykstra dismissed any concern that he did not enquire about a “No Contact Ban” raised in the subject line of the grievor’s OR of September 17, 2014, on the basis that in his view there had not been any contact. [150] As to any concern of differential treatment in the case of CO Wiggins having her feet pushed off the desk, Dykstra said that physical contact is more serious than words being exchanged. [151] Sergeant Angela Cicak testified on behalf of the Employer. She authored the Local Investigation Report (LIR) dated February 11, 2014. On its face the Report sets out that it is with respect to an incident dated January 17, 2014 , which deals with the events which took place in the Unit 9 module, firstly involving the grievor and Heather Murchison and later that day, involving the grievor and David Murchison. Ms. Cicak held the post of Sergeant at Maplehurst from 2013 to 2015. She was initially the head shift officer and then moved to the Security Office. At the time that she authored the report she was the Security Manager at Maplehurst. She was assigned the task of investigating and preparing the LIR by a Deputy Superintendent, Administration. She was uncertain as to whether it was DS Marchegiano or DS Gautier who made the assignment. In her evidence she reviewed the steps she took to prepare the report, which included interviewing witnesses and asking for and receiving, or simply receiving, the staff ORs of the participants and witnesses relating to the events of that date. In her direct examination she noted that Sergeant Sawyer, the Sergeant on duty at the time of the incident, did not complete an “Employee/Other Incident Report”, which ought to have included details of the incident and any policies not followed. [152] In her examination in-chief Sergeant Cicak reviewed video footage of the events, which she said was consistent with the ORs she had received. She also went over her findings, as set out in the report. She noted that she had catalogued in her report the documents that formed part of the evidence. She testified that she would have taken the completed report, and the evidence relied upon, to the DS Administration, being either Marchegiano or Gautier. She also testified in chief - 47- that it would be contrary to Ministry policy for her to have given a copy of the report to the participants. [153] In her cross-examination Sergeant Cicak testified that the allegation that David Murchison had threatened the grievor was a serious allegation. She testified that her investigation was thorough and she made findings in the report based upon the evidence she acquired. It was her recollection that both DS Marchegiano and DS Gautier were present in Gautier’s office when she was assigned to complete the investigation and write the report. She said that she gathered the ORs, video, relevant policies and interviewed some of the staff. She said that all of the evidence that she had gathered was handed in to the DSs when she submitted her report. She testified that she did not make many notes of the interviews; she was certain that her notes of CO Grover’s interview were made at the time of the interview. She also testified that her interviews of the witnesses, including the grievor, were consistent with the ORs filed by them. She kept specific notes of her interview with David Murchison because she wanted to obtain a more “fulsome” picture than what was in his report. [154] Sergeant Cicak also testified that she did not receive any supplementary instructions from the DSs, she did not advise the grievor or the Union of the outcome of her report, and she had no knowledge of whether anyone had done so. [155] Cicak also testified in her cross-examination that Sergeant Sawyer did not file an Incident Report (IR) although he was asked to because he could be seen in the video engaged with the grievor. He was the Unit Manager at the time. His participation in the incident and his position as Unit Manager would have, in her view, required Sawyer to file both an OR and IR respectively; all that she had from Sawyer at the time she completed her report was a brief OR in which he stated that the grievor told him that David Murchison had threatened him and that there were witnesses to the threat. [156] Cicak also testified that the LIR consists of different parts which, on their face, require an ascending management requirement to sign off on the report; she had no knowledge of whether the ascending tiers of management ever complied with those requirements. [157] Sergeant Cicak was unaware that the grievor had filed WDHP complaints after she had completed her report, nor was she ever advised of the investigation and report by the investigator from the Ministry of Labour. - 48- [158] Cicak testified that the primary issue in her investigation and report was whether David Murchison had threatened the grievor while in the Unit 9 Control Module. To that end she made a number of findings and related, secondary findings, as set out in her report. She agreed in her cross-examination that on the main issue she found as a fact that David Murchison had threatened the grievor. She also found that David Murchison had violated the Workplace Violence Prevention Policy and the Occupational Health and Safety Act in his behaviours towards the grievor. [159] She agreed that a threat of physical harm could amount to criminal activity and the responsibility to report such would be that of management but that it would not have been her responsibility. [160] She said that subsequent to handing in the report neither Gautier, Marchegiano, Dykstra nor Parisotto approached her to discuss its contents. She testified that it was her superior officers that were obliged to follow-up her findings, which she believed were serious and substantiated, and for them to determine whether any action should be taken in light of her findings. She had no knowledge whether they had done so. [161] In her re-direct examination she testified that she did not see any postures of the grievor, as displayed in the video, which were consistent with him fearing attack. Rather, the grievor adopted a “Gumby” stance facing David Murchison with his hands in his pockets, which would be perceived as leaving himself exposed. [162] Mark Parisotto testified on behalf of the Employer. At the time of the hearing, he was the Acting Director (Institutions) of the Eastern Region. He had been the Superintendent of Maplehurst from December 2011 to December 2017. Prior to that he was the Deputy Superintendent (Administration) from approximately April/May 2011 to December 2011. [163] He explained his general duties as Superintendent. He testified that his human resources duties were delegated to the Deputy Superintendent (Administration) and, unique to Maplehurst, to the Deputy Superintendent of Staff Relations, to each of whom he would provide direction as needed. While he was Superintendent there were approximately 650 – 700 staff positions of which approximately 400 were Corrections Officers composed of both regular full-time and fixed term employees. There was an inmate population of approximately 1000 to 1100 at any given time. - 49- [164] Superintendent Parisotto testified that he became aware of the January 17, 2014 incident involving the grievor and David Murchison around the time, or just after, it took place. He became aware of the 2010 incident between the grievor and Heather Murchison in or around December 2013 as a result of a conversation that the grievor had with one of the DSs. He said that that conversation had been with either DS Marchegiano or DS Gautier. [165] Superintendent Parisotto identified OM16 Sawyer’s OR dated January 24, 2014 relating to the incidents between the grievor and the Murchisons on Friday, January 17, 2014. He said that he knew he had seen that OR because it bore his stamp and initials. [166] He described the process by which incidents in the jail are documented and reported to him. He said that whenever an incident occurs, an incident package is generated which includes ORs from both staff and management. They are collated by the Incident Manager and placed in a file folder in the Shift Supervisor’s office. Any OR from a given day goes into that file folder and is reviewed the following day by the DS Operations. He said that occasionally staff or managers may be asked to provide an OR or an addendum to an OR. They too go into the overnight folder, are reviewed the next day and are put into the appropriate incident folder. Parisotto testified that occasionally an OR may come to him in a sealed envelope that has been put into the overnight folder or slipped under his door. Accordingly, he said that he would receive ORs either directly or from the DS who reviewed the ORs in the overnight folder. [167] Parisotto also identified Sergeant Cicak’s LIR dated February 11, 2014. He said that he might have read it, but acknowledged that it was not signed by him. He did recall being briefed on its contents by either DS Janet Gautier or DS Chuck Marchegiano. He testified that on any given occasion it could be one or the other, or both of them that would apprise him of an incident. That is to say, he had no specific memory of any of the instant events. [168] Parisotto also testified that not all LIRs are completed by the Risk Management Team, which accords with the Ministry’s Policy regarding “Preliminary Reviews and General Local Investigations”. That policy, relied upon by Parisotto in giving his evidence, had not been previously produced to the Union, notwithstanding my production orders in these matters. Further, it is important to note that that policy document, which informed Parisotto’s evidence and was marked as exhibit 17 in these matters, was not necessarily the same document as that in effect at the time, if the policy even existed at the time. Rather, it was a copy of a policy on the Ministry’s website as at June 25, 2019, the day that Parisotto testified in - 50- these proceedings. It should also be noted, as a housekeeping matter, that the document ought to have been marked as exhibit 18, as the video images introduced by Sgt. Cicak had already been marked as exhibit 17, with an undertaking to provide copies for the record. Copies of those videos were provided after the conclusion of the parties’ final submissions. [169] Parisotto testified regarding the aspects of the policy document pertaining to the responsibilities of the various levels of management to sign-off on the contents of a LIR. He testified in chief that applying the policy to the circumstances here meant that there was the possibility of criminal charges being laid against David Murchison. He said that because management did not know if charges would be laid, a “General LIR” (hereafter GLIR) was not required at that point. He was taken to Part C of the LIR, marked as Tab 29 of Volume 2 of Exhibit 3 in these proceedings, which says on its face “Part C – To Be Completed by the Superintendent”. He was asked whether it was always so that the Superintendent had to complete that section. He answered that a Deputy Superintendent could be the one to complete it. There was no evidence led of any specific Delegation of Authority in that regard. He was also asked why Part C was not completed in this instance. He said that he did not know why it was not completed due to the absence of a completed copy of the LIR. I took that to mean that he did not know why it was not completed because it had not been completed. Parisotto testified that completion of the GLIR would await comments from the Workplace Violence Prevention Advisor and the WDHP Advisor which in the normal course takes time. He said that those results were available by October 2014. In both cases the complaints were said to be out of scope because the grievor had not gone to the police. Parisotto testified that with those results in hand along with the information that there would be no criminal charges, management could have started to complete the GLIR. He said that the file would have been put aside awaiting that information being received. [170] Parisotto was also asked if he recalled any discussions as to what steps management should take with respect to Heather Murchison. He testified that they would review where the parties were working in order to determine what steps would be required. [171] The Union objected to the evidence being led from Parisotto on the basis that it was neither relevant nor related to the facts in issue in these matters; that is, it was entirely general in its scope. I agreed with the Union’s objection and was constrained to admonish Superintendent Parisotto that such evidence could be given no weight unless it shed light on what he had actually done to deal with the - 51- grievor’s serious allegations and with the findings of the LIR related to the actions taken against the grievor by the Murchisons. [172] Parisotto then testified that there were conversations regarding the more recent allegations and regarding the 2010 alleged incident. He testified that steps were taken to ensure the Halton Police Service Liaison Officers at Maplehurst were provided with the available information. He also testified that direction was given as to where the parties could be assigned to work in order to keep them separate. Parisotto then reiterated that the instant circumstances were but one among approximately 250 incidents per year that would be reported to him by either, or both, of Gautier and Marchegiano. [173] Parisotto did say that his understanding was that David Murchison was not assigned to work with the grievor. After reviewing Murchison’s previous disciplinary record, his seniority, involvement in any similar incidents, interviewing other employees and considering any mitigating circumstances, Murchison was “verbally counselled”. That is, he received no discipline at all. [174] Parisotto testified that the reason the employee who assaulted a female CO, by knocking her feet off of a desk, was transferred to a different position on steady nights was because he was a fixed term employee and, accordingly, not assigned to a particular unit as were the Murchisons, who were full-time employees that had bid for their work assignments pursuant to the post-pick provisions of the collective agreement. Further, he said that their contact with the grievor would be incidental at best. He said that Heather Murchison’s incident with CO Ewing resulted in her suspension pending investigation and a disciplinary suspension of five days. As to the incident between Heather Murchison and CO Bowerman, Parisotto testified that she was suspended with pay for several weeks pending investigation. The matter was investigated, including a review of videotapes. He recounted in detail the steps taken in the investigation including a very detailed recollection of what he saw on the video- tape recordings. He concluded that she had not slapped Bowerman as alleged, and she was returned to work. He said that her return to work was discussed with either or both of Gautier and Marchegiano, which saw her returned as the scheduling clerk. It was intended that she would hold that position until the final disposition of the matter of her interactions with CO Bowerman. His evidence of the reasons that position was chosen was that she would have limited interaction with the grievor. [175] As to Parisotto’s involvement with the grievor’s WDHP complaints, he said that Marchegiano handled such things; Parisotto's only involvement was generally to - 52- be briefed by Marchegiano on steps taken rather than what next steps should be taken. [176] Parisotto recalled that the grievor met with him on September 18, 2014 about his WDHP complaints, He said that he would meet with any employee and in this case advised the grievor that the complaints had been referred to Corey Harris along with the grievor’s supporting materials, that the complaints had been found to be out of scope, and that the grievor was to contact the Halton Regional Police Service to pursue his concerns. Parisotto also identified his letter to the grievor of October 30, 2014, which he said had been sent “to formalize the process”. He testified that the letter included an invitation to the grievor to participate in mediation with Heather Murchison because even though the grievor’s complaints were found to be out of scope, Management still wanted to restore the workplace and mediation is an option towards achieving that end. It was his understanding that the grievor had not accepted that offer. [177] Finally, in direct examination, Parisotto was asked about ORs in which the grievor protested Heather Murchison’s actions in coming into his unit, interacting with him as the scheduling clerk or his having been denied use of the lunch room. Parisotto said that he did not see any violations of required standards on the face of those ORs and did not recall the OR regarding the lunch room . He also testified that he was not involved in the visit by the Ministry of Labour Inspector. [178] In his cross-examination Parisotto acknowledged that OM16 Sawyer, the Unit Manager, ought to have filed an incident report at the time regarding the incident between David Murchison and the grievor. He only learned after the fact that Sawyer filed his OR approximately three weeks later after being directed to do so by Cicak. He agreed that he did not know why the OR was filed three weeks after the incident and an incident report was not filed. [179] Parisotto also testified that he became aware of the 2010 incident in December 2013 and directed either Gautier or Marchegiano to direct the grievor to file an OR. He did not know that the grievor was not told to do so until after mid- January. He also testified that he gave a direction that the 2010 incident be investigated, but he had no direct knowledge whether that was done. [180] In his cross-examination Parisotto said that he had no direct knowledge that the LIR was not completed because of a policy. He also did not know who undertook the preliminary review required by the Ministry’s GLIR Policy. He agreed that the matter was not referred to Correctional Services Oversight and Investigation - 53- (CSOI) and, he agreed, that meant that Part C, meant to be completed by him, was not exempt from completion. He also agreed that he became aware of the policy document as part of his preparation for this hearing. He said that he refreshed his memory by reading the policy. [181] It was put to Parisotto that neither the grievor nor the Union were advised of the results of the LIR and that completion of a risk assessment form is required, but was not done, with respect to Heather Murchison’s and David Murchison’s separate assaults on the grievor. He agreed that the definition of violence in the Workplace Violence Policy is broad enough to include hitting, kicking, finger shaking, fist shaking, and gesturing a threat to fight and that such behaviour should be investigated. [182] Parisotto also agreed that his email to the grievor of October 6, 2014 confirming his meeting with the grievor of September 18, 2014 only referred to the grievor’s WDHP complaints yet his letter of October 30, 2014 dealt with both the WDHP complaints and his Workplace Violence Policy complaint. Further, he agreed that the letter only referenced Heather Murchison regarding the Workplace Violence Policy Complaint; that is, there was no reference to the grievor’s WVP complaint against Dave Murchison. He also said that he consulted with Cory Harris about WDHP complaints but could not recall to whom he spoke about WVP complaints, falling back on his familiar response, “I would have been briefed”. He was not aware of any investigation or interviewing of witnesses regarding the WVP complaints and did not know the basis upon which the complaints were rejected. He also agreed that neither Dykstra nor Marchegiano told him that they had advised the Ministry of Labour Inspector of the LIR findings that Dave Murchison had violated the WVP Policy. Parisotto agreed that he had no direct knowledge of the basis of the decision of Cory Harris that the WDHP complaints were out of scope, nor of the documents that had been sent to Cory Harris to use in reaching that determination. He himself had not contacted Halton Police and had no direct knowledge of any exchange between Halton Police and either Gautier or Marchegiano. [183] Parisotto agreed in his cross-examination that the document in evidence filed as Exhibit 3, Tab 29 was an LIR, which, if the Policy had been adhered to, would have come after a Preliminary Assessment. He did not recall whether he had received a copy of the LIR but “probably was briefed”. He said that he likely never saw it because it did not bear his stamp. He did not recall being told, when he was briefed, that the LIR included the findings that David Murchison had violated the WVP. - 54- [184] When it was put to Parisotto that the fixed-term employee who was moved to the night shift after assaulting a female officer had been moved from a steady assignment in Unit 11 rather than from a less stable, more itinerant situation, he had no evidence to the contrary. [185] In his re-direct examination Parisotto testified that it is standard practice not to disclose to employees the actions taken against other employees, so it was not unusual not to tell the grievor of any action taken against David Murchison. He said that that was why the circumstances of David Murchison’s WVP breaches were not included in his letter to the grievor of October 30, 2014. As to the Risk Assessment document not being completed in these circumstances, he said that the document is more in the nature of a general assessment of the workplace as a whole rather than of an individual assessment of incidents such as those involved here. Finally, he said that the WVP requires an employee to report violations immediately. [186] Deputy Superintendent Janet Gautier also testified on behalf of the Employer. She began her employment at Maplehurst in or about 2006 or 2007 as the Chief Social Worker for Maplehurst and the Vanier Centre for Women. She progressed to become the Deputy of Programming, then Acting Deputy Superintendent Administration at Maplehurst. She then moved to the Ontario Correctional Institute (OCI). She retired in 2016 having worked in Correctional Services for twenty-seven years. She holds a Bachelor of Arts degree as well as a Masters of Social Work degree. [187] Gautier testified that she became the Deputy Superintendent – Administration in approximately 2012. She was responsible for discipline and the security of the institution while the Deputy Superintendent of Staff Relations, Chuck Marchegiano, was responsible for dealing with grievances filed by the unionized employees. She testified that she did a lot of the paperwork, consulted with Human Resources and liaised with Marchegiano, who would meet weekly with union representatives on disciplinary matters, annual post-picks and any complaints. Gautier said she also dealt with staff complaints. She said that she had an open-door policy, so much so that staff might come straight to her, until she learned to direct them to work through the chain of command. She described herself as a “rescuer”. She testified that she did what she could for the staff in what she described as a “conflicted, chaotic workplace”. She said that you might forget that there were inmates in the institution given that there were so many staff problems. She said that it was very busy and that there were constant problems. She gave as an example that a social worker had her child die and got push-back for missing time from work. She also said that among the - 55- staff there were verbal confrontations, physical fist-fights, police involvement, conflict between divorced spouses on staff and split couples on staff. She gave as a further example two male staff members who worked together for fifteen years, despised each other and told on each other. She said that she had to leave Maplehurst because it was “too much”. She said that OCI was calmer but still suffered from staff conflict comparable to Maplehurst, although she also said that her blood pressure, which was elevated at Maplehurst, came down when she went to OCI. [188] Gautier testified that she first encountered Heather Murchison when Gautier started as a Social Worker. She did not know Murchison personally; she knew her only as an employee. Gautier testified that Heather Murchison felt strongly that she was victimized. [189] Gautier testified that Murchison would come to her with complaints and, for a time, they worked across from each other. Gautier would see her crying and open a dialogue with her. She said, by way of example, that Murchison had issues with doing hospital escorts and would bring those issues to Gautier, whose responsibilities included healthcare. Her evidence on this point, that Murchison had issues with doing hospital escorts, is consistent with the evidence led by the Union. Gautier said that while on hospital escort duty Murchison would leave her post to go outside for a walk, on the strength of a doctor’s note that she should go for a twenty minute walk every three hours. Gautier told Murchison that in that case she would have to accommodate Murchison out of performing escort duty but Murchison would repeatedly say that “she didn’t understand, she didn’t understand.” Gautier testified that she did not, from her experience, believe that Murchison was a danger to anyone. However, she did describe Murchison as quirky, incredibly stubborn, illogical, and naïve. Gautier said that other staff would complain about Murchison’s behaviours. Murchison felt that she was picked on because of her gender; Gautier did not believe that to be so and discussed that with Murchison. By way of example, Gautier testified that when Murchison was returned to work as the scheduling clerk there were complaints from other staff. She said that the staff was right, that Murchison was bad at the scheduling job and that it was nothing to do with gender. However, the next year she got the job due to her seniority in the post-pick process. [190] Gautier confirmed that Murchison received a five-day suspension for the incident with CO Ewing. It was Gautier that escorted Murchison off the premises for the incident with CO Bowerman. As to the incident itself, she testified that Murchison only pulled on his vest. She described Murchison’s actions as “inappropriate” but not dangerous. - 56- [191] Gautier recalled that the grievor came to her in December 2013 and reported the 2010 incident between him and Murchison. She said that the 2010 incident was only one incident but no one had made a report. She said that in 2013 a number of staff were putting in reports, about the grievor and Murchison, and that it used to be very difficult to file a report complaining about a co-worker. Although she recalled that the grievor reported the 2010 incident in December 2013, she could not recall any details. Gautier testified that she and Marchegiano discussed the matter and formed the opinion that there was not much they could do after so much time had passed. [192] Gautier testified that the concerns the grievor expressed in December 2013, regarding the 2010 incident were not ignored, but they became a bigger issue when Murchison picked the post in Video Remand (VR). She said that she took seriously the conflict between the grievor and Heather Murchison but did not think that there was any danger between them. She testified that the grievor was very concerned that Murchison was going to be coming onto his unit, Unit 9, as part of her VR position. She said she had no authority to over-ride Murchison’s post-pick. She thought that the VR position would not aggravate their conflict because although she would have to go onto the unit to retrieve inmates for VR, she would not be working in the unit full-time as part of the unit’s staff. Also, since the grievor often worked in the Control Module, there would be even less contact between them. She was happy that things would get quieter and calm down. [193] As to the altercation that did erupt on January 17, 2014, Gautier said that both Heather Murchison and the grievor wrote ORs, saying the other person was responsible. Gautier testified that she believed that Heather Murchison spoke to her husband, David Murchison, after the morning incident between her and the grievor. Further, Gautier testified that David Murchison told Gautier that he was Heather’s husband, and he had to defend her and he wanted the picking on her to stop. Gautier testified that many of the other staff were upset at Heather Murchison and that when she spoke to David Murchison the next day he was very upset, and he cried. Her view was that it was hard on David Murchison because he was well-accepted by his peer group, but his wife was not. She testified that she could not recount exactly what he said, but it was to the effect that, “She’s [i.e., Heather Murchison] gonna kill somebody some day.” Her take from the video of the grievor’s and David Murchison’s encounter was that the grievor stood with his hands on his hips; David Murchison was yelling, and then he went away. Gautier said that she verbally counselled David Murchison. There was no discipline put on his record. There had been no assault. She - 57- testified that she did not think that David Murchison was a danger to the grievor. It had been a verbal altercation; no blows were exchanged, but David Murchison had no reason to be in the Control Module. She said that verbal flare-ups were common in the institution. She said that she felt David Murchison had said his piece and was remorseful to the extent that he was sorry for getting into trouble but not sorry that he had yelled at the grievor. She testified that the situation was turned over to security to complete an investigation. [194] Gautier testified that she did not recall getting a copy of the LIR. She testified that the LIR was to go up the chain of command by way of the Superintendent signing off on it; then it goes to Region, as per Parts B, C, D, and E of the LIR. Gautier testified that she would have been the person to have assigned Cicak to complete the report because Gautier’s responsibilities included security. Once completed, the report would go to the Superintendent to sign off on. [195] She said that she had talked to Marchegiano hundreds of times about various matters. She testified that she had no control over where Heather Murchison would work and that Murchison refused to go anywhere but her post-pick. She and Marchegiano talked about this situation. She said that Heather Murchison was frustrating, and that they did not want these problems. Gautier saw the conflict with the grievor and that other staff did not want to work with Heather Murchison. As set out above, staff complained about her when she worked in scheduling. When she worked in VR the COs would complain to Gautier or to Marchegiano that she was making mistakes. Gautier testified that CO Bowerman complained to her that Murchison was leaving names off of the list or otherwise not doing the VR job correctly. Murchison would say she was and claimed that other staff were picking on her. [196] Gautier was asked further in her examination-in-chief about her discussions with the grievor in 2013 about the 2010 incident. She testified that with the situation between the grievor and Heather Murchison the workplace strictures against complaining against co-workers started to change. She said that in 2010 it was a different situation. She testified about a very troubling situation that involved her when she started in Corrections in the 1980’s. She testified that a staff person said to her that he wanted to take her outside and everyone could take a turn with her. She testified here that she reported it and her life was miserable for over a year. She testified that when someone comes forward the system works, but if reported years later it does not. She said that her hands were tied until Heather Murchison went to VR. She testified that Heather Murchison never let the 2010 issue go because she believed that she was the victim. - 58- [197] She was also asked in chief about the transfer to the night shift of the part-time CO who slapped the female CO’s feet off of a desk. She said that the part-time CO prided himself as being “old school” and that even in an allegation meeting he would disparage women. Gautier said that he already had a five-day suspension on his record. She did not recall the change to his shift as part of the response. She also testified that there was discussion of terminating his fixed- term contract but that that was overturned by Region and/or Human Resources in favour of a twenty-day suspension. [198] In her cross-examination, Gautier said that the grievor came to her in December 2013 to report the 2010 incident with Heather Murchison. She did not refer him to Marchegiano, but dealt with the immediate concern herself. She agreed that the grievor was trying to be pro-active in preventing Heather Murchison from coming to work on Unit 9. When Gautier was told that the grievor recalled in his evidence that she had hugged him at the end of their discussion, she agreed that she may have stretched the boundary, which would not have been uncharacteristic. She said that she would have reassured him, but would not have promised that Murchison would not come to his unit, because some things were beyond her control, such as post-picks. She agreed that she believed at the time that Murchison going to VR would not present the same old problems, but now she understood that although the VR Officer wouldn’t be working continuously on the floor of Unit 9. COs, including the grievor, would nonetheless have to work closely with the VR Officer. [199] Gautier said that any follow-up in 2013 to the 2010 incident would have been referred to Marchegiano as the Deputy Superintendent of Staff Relations, because it was a labour relations issue. Although she was on vacation in early 2014 when the grievor said he followed up with Marchegiano, Gautier knew that Marchegiano was working on it. She said they both dealt with the January 17, 2014 incident. She said that it was Marchegiano who dealt with Heather Murchison, having a number of meetings with her about it; Gautier testified that she was not present for those meetings. [200] Gautier testified that she was never told by Marchegiano that Heather Murchison was not to be assigned to the grievor’s area. [201] As to details of the January 17, 2014 incident, Gautier testified that she and Marchegiano met with the grievor afterwards. Her recollections of the events thereafter were vague. She could not recall if the grievor had told her that Heather Murchison had been to the Control Module before David Murchison or if she knew that from reports she had read. She also did not recall the grievor - 59- telling her that Heather Murchison came to the Module looking for confrontation and provoking him. She was not saying that Murchison did not do so, just that she had no recollection of the grievor saying so. She agreed that such behaviour would be consistent with Heather Murchison’s behaviour because Heather Murchison had no insight into how provoking she could be. She said that Heather Murchison could not be reasoned with and had no ability to accept criticism. [202] Gautier also testified about CO Bowerman’s complaint against Heather Murchison. She said that he was a very tough officer and that he wanted something to happen to Heather Murchison, who had flown under the radar for twenty-five years. She discounted Bowerman’s complaint as not being serious. [203] Gautier said that after she left for OCI in 2014 she would have had no knowledge of any events at Maplehurst, such as the grievor’s WDHP complaints, or the Ministry of Labour investigation. Tom Dykstra had taken over her position of Deputy Superintendent of Administration, and he did not contact her regarding the Ministry of Labour investigation. [204] As to Cicak’s LIR, Gautier testified that she saw it for the first time when giving her evidence in chief in this matter. Accordingly, she had no evidence to offer as to whether Marchegiano did or did not follow up on the LIR. She agreed that an LIR goes through a number of steps and that the report sets out the different people that are to be involved in receiving and signing off on the report. She agreed that there were no signatures on the LIR verifying its disposition, but agreed those aspects of the report ought to have been filled out. That is, it was her view that at least the Superintendent was responsible to sign it, but the copy entered into evidence was not signed. [205] Gautier testified that it would be up to Marchegiano and the Union to agree on whether the post-pick process would not be followed and that this was out of her line of responsibility. [206] Gautier testified that she had no knowledge of any complaints by female COs against Heather Murchison, because such complaints would go to Marchegiano. [207] Gautier testified that she did not receive the package of ORs that were submitted with the LIR, but she had received, read and stamped some of them as they were filed. She had no recollection of seeing Sgt. Sawyer’s OR which was submitted late to Cicak. She was directed in her cross-examination to the OR filed by the grievor on January 28, 2014 relating to the 2010 incident. She - 60- agreed that it was not included in the package of ORs submitted with the LIR. She testified that she did not recall seeing it since it went to Marchegiano, and he had not told her of its existence. She had no knowledge of whether any action had been taken on it. Although she could not recall a specific conversation with Marchegiano about her conversation with the grievor in December 2013 regarding the 2010 incident, she testified that she is almost certain that she would have done so because that was her method of operation. [208] In Gautier’s re-direct examination, she testified that an LIR was not always the format in which an investigation would be presented. She said that the LIR format was a new process. She said that investigations were usually into use of force involving an inmate, and she could not be sure that staff conflicts were always investigated. The Submissions of the Parties [209] The Union submitted that its evidence in these matters is uncontradicted, reliable and truthful. It said that the Employer did not call Chuck Marchegiano, either of the Murchisons nor Lt. Lacoursiere. [210] The Union submitted that the evidence established that the grievor had taken proactive steps to have a safe and healthy workplace by attempting to keep the Murchisons away from him. It said that the grievor’s evidence should be accepted on the point that DS Gautier and DS Marchegiano had both assured him that there would be no contact with the Murchisons. The grievor’s evidence was that Marchegiano had given such an assurance. It also submitted that Gautier, in the very least, did not fully understand the nature of the duties of the Video Remand Officer and how Heather Murchison’s duties in that role would impact the grievor. That is, Gautier was not aware of the degree to which Murchison’s duties would bring her into contact with the grievor. The Union submitted that those promises were broken. [211] The Union submitted that the grievor notified management in an OR in January 2014 that Heather Murchison had assaulted him in 2010, and the grievor’s account was corroborated by COs Grover, Strickland and Wakenhut. It was submitted that the aggressive behaviours of the Murchisons toward the grievor in January 2014 were further incidents that put the Employer on notice of the grievor’s concerns that his workplace was unsafe. [212] The Union submitted that Sgt. Cisak’s investigation of the January 2014 incidents was kept hidden from the grievor and the Union, much like the Employer’s failure - 61- in these proceedings to comply with this Board’s Orders for production of documents. Cicak testified that her report, along with the supporting documents, was given to either Gautier or Marchegiano. Gautier testified that she didn’t see the report until these proceedings. The Union submitted that the evidence supports a finding that Marchegiano received the report and there is no compelling evidence that he did not give it to Parisotto. The Union submitted that despite the LIR’s specific findings that David Murchison threatened to harm the grievor, Parisotto took no action to protect the grievor. The Union said that Parisotto told the grievor that he could talk to the Halton Regional Police Service, yet it was the Employer’s obligation to do so. [213] The Union also referred to Parts B, C and D of the LIR and submitted that those parts of the LIR were required to be completed, but they were not. The Union submitted that, in essence, Maplehurst management buried the report without making any effort to deal with its serious conclusions. The Union also submitted that Parisotto gave misleading evidence, suggesting that it might not have been necessary to have done the report. It said that there was no evidence that the policy that was put into evidence, and relied upon by Parisotto, was in effect at the material time. Rather, it was said, the evidence established that Parisotto just went on-line to the internet and found this policy as part of his preparation to give his evidence that day. The Union submitted that in his cross-examination it became clear that Parisotto’s attempt to mislead the Board was unsuccessful because the policy didn’t stand for the propositions that he said that it did. The Union submitted that Parisotto’s evidence was so untrustworthy that it should be given no credence. The Union said that the evidence of Cicak and Gautier was clear, Parts B, C. and D of the report had to be completed by ascending levels of management, starting with Parisotto himself, and they were not. [214] The Union said that Parisotto knew of the grievor’s concerns as early as December 2013. Further, the Union submitted that rather than address those concerns, management retaliated against the grievor by reaching back to an allegation of use of force against an inmate from September 9, 2013. The grievor was wrongly accused of failing to file an OR about that incident. No one else was again called to account, not even CO Wakenhut, who said that he himself had been a central participant in the incident. The Union submitted that the allegation meeting in July 2014 against the grievor relating to this use of force incident was management targeting the grievor for his having sought management’s protection from the Murchisons. [215] The Union said that management, represented ultimately by Superintendent Parisotto, shirked its obligations to provide the grievor with a safe workplace. It - 62- did not do the “Workplace Violence Risk Assessment” required of it. It did not follow its obligations under the “Workplace Violence Prevention Policy” (WVPP). They broke their promises to keep the Murchisons away from the grievor. [216] The Union submitted that the WVPP is broad in scope, especially its definition of “Workplace Violence”. The Union submitted that these were violations of Bill 168 and The Occupational Health and Safety Act. Parisotto ignored these violations of the WVPP. [217] The Union submitted that the Employer knew that Heather Murchison had a history of inappropriate touching of and dealing with other employees, and Gautier confirmed that knowledge in her evidence. [218] The Union submitted that the grievor continued to reach out for management to provide him with a safe workplace until he finally left work in January 2015. Nothing that he did had had any effect. It said that management misled the Ministry of Labour inspector. Dykstra took no steps to investigate the grievor’s concerns. The Union said that it was the grievor’s persistence that resulted in his WDHP complaints going forward to Cory Harris, only to have them found to be out of scope. Management was aware of the grievor’s complaints, but it did nothing. The grievor was also the victim of a public berating by OM McCabe; the grievor was targeted and victimized because of his complaints of not being provided with a safe workplace. [219] The Union also submitted that the Employer misled the WSIB in reporting that the grievor’s issues of January 17, 2014 had been dealt with and that there had been no further reports of subsequent verbal assaults. The WSIB was said to have been required to substantiate the grievor’s claims itself. The Union said that the evidence of its witnesses was clear and uncontradicted that the grievor continued to be subjected to further assaultive behaviour after January 2014 up to when he left the workplace in January 2015. [220] The Union relied upon the following authorities: Toronto Transit Commission v. Amalgamated Transit Union (Stina) (2004) 132 L.A.C. (4th) 225 (Shime); Clarendon Foundation v. O.P.S.E.U. (Vernon Mitchell) 2000 Carswell Ont 1906; Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Groves), Re (2014), 120 C.L.A.S. 266 (Ontario Grievance Settlement Board) [Mikus]; OPSEU and Ontario (Ministry of Community Safety and Correctional Services), Re 2017 Carswell Ont 19506, Ontario Grievance Settlement Board (Carrier); Ontario (Ministry of Transportation) and OPSEU (Louis) Re, (2014), 243 L.A.C. (4th) 334 (Ontario Grievance Settlement Board [Harris]); Goodyear - 63- Canada Inc. v. U.S.W.A., Local 189, 2002 Carswell Ont 4148, 107 L.A.C. (4th) 289, (Goodfellow); Toronto Transit Commission and ATU, Local 113 (Merolle), Re, 2013 Carswell Ont 18432 (Shime); Vale Canada Ltd. And USWA, Local 6500 (Breault), Re, (2012) 228 L.A.C. (4th) 187 (Johnston); Kingston (City) v. C.U.P.E., Local 109 (Hudson) (2011), 210 L.A.C. (4th) 205 (Newman); Canadian Union of Skilled Workers v. Hydro One Inc. 2014 CanLII 44660 (ON LRB). [221] The Employer made oral submissions and also filed a written brief. It submitted that it did not breach the collective agreement but, rather, it took reasonable steps in dealing with the grievor’s concerns while balancing them with the seniority rights of Heather Murchison. It said that Sgt. Cicak’s LIR report did not make any findings against Ms. Murchison and that the allegations made against her, viewed objectively, could not be considered harassment. The Employer also submitted that the evidence of Union witnesses which was intended to “paint” her as a “violent employee”, did not involve the grievor and dealt mostly with her competence as an employee, not with alleged violence. The Employer submitted that it reacted reasonably to the concerns brought forward by the grievor and others. The Employer noted that the grievances here do not pursue claims under the Ontario Human Rights Code. Also, the parties agreed to bifurcate any remedial issues and proceed first with the merits of the grievor’s claims. [222] The Employer’s submissions included a thorough canvassing of its view of the viva voce evidence, including a consideration of Sgt. Cicak’s testimony as it related to some of the surveillance videos from January 17, 2015. [223] The Employer submitted that the grievor’s failure in 2010 to promptly bring forward to management his concerns limited its ability to take formal action. It said that the collective agreement as well as the WDHP require adherence to established timelines. It submitted that there were no incidents between the grievor and the Murchisons between the unreported kicking incident in 2010 and the incidents in January 2014. Further, there was an absence of occurrence reports in that period. [224] The Employer also submitted that DS Gautier’s assessment that there was conflict, not danger, between the grievor and Heather Murchison was reasonable, as was the decision to permit Heather Murchison to exercise her seniority in making her post picks rather than deny such on the basis of a stale- dated, three-year old incident, with no further incidents in the intervening period. [225] The Employer submitted that the video evidence of the January 17, 2014 exchange between the grievor and Heather Murchison, along with the Union’s - 64- evidence given by CO Strickland supports a finding that it was the grievor that was the aggressor. It was submitted further that none of Ms. Murchison’s behaviour can be seen to be a breach of the WVP Policy. [226] As to the video evidence of the exchange between the grievor and Mr. Murchison on January 17, 2014, the Employer submitted that it could not have reasonably been foreseen by the Employer. It said that there were no previous run-ins between them and it was out of character for Mr. Murchison. Further, it lasted less than 90 seconds and the grievor’s body language did not suggest that he feared for his safety. [227] The Employer also submitted that the evidence of both Sgt. Cicak and DS Gautier was to the effect that Mr. Murchison was remorseful, had not done anything similar before, and it was only verbal in scope. [228] The Employer also submitted that the grievor’s contention that he was harassed by Ms. Murchison was not borne out by the evidence. It said that there were only three ORs from the grievor in the twelve months between January 17, 2014 and January 2015 when he ceased working, none of which support a claim of harassment and there were no new incidents against Ms. Murchison in the grievor’s WDHP complaints. [229] The Employer submitted that the Union’s contention that the Employer ignored the grievor’s concerns or took no action is not borne out by the evidence. It pointed to Ms. Francovich’s reassignment of Heather Murchison to only scheduling overtime for the fixed-term staff. DS Gautier considered the grievor’s concerns when she allowed Heather Murchison to take the video remand position. She also counselled Mr. Murchison following the January 17, 2014 incident. The Employer also referred to Ms. Murchison’s suspension with pay following CO Bowerman’s allegations against her. Also, it said that management’s decision to temporarily transfer Ms. Murchison into Unit 8 rather than return her to her original position was a reasonable response to the situation. [230] The Employer also submitted that Mr. Parisotto testified that he did consider at least two of the grievor’s three ORs and determined that the facts alleged did not warrant further action. Accordingly, he simply added the information to the existing file. - 65- [231] The Employer also submitted that the allegations against Ms. Murchison were not breaches of the provisions of Bill 168 which define workplace violence. Neither her behaviour on January 17, 2014, nor that after, meet that definition. [232] As to the purported failure of the Employer to provide Sgt. Cicak’s LIR to the Union and/or the grievor, the Employer submitted that such reports are not distributed in that fashion. [233] The Employer submitted that it did cause the January 17, 2014 incident to be investigated and an LIR to be prepared. Further, it said that even though it did not take specific action in response to the LIR, it did counsel Mr. Murchison in accordance with the principles of progressive discipline. In addition, the grievor himself “was also a beneficiary when nothing further was done with the LIR”. [234] Finally, the Employer submitted that there is no merit to the Union’s allegation that the Employer misled the WSIB on its Form 7. It said that based on the documentation in its file there was no substantiated evidence of any verbal assaults by Ms. Murchison against the grievor after the January 17, 2014 incident. [235] The Employer relied upon the following authorities: OPSEU and Ontario (Ministry of Children, Community and Social Services) (Smith), Re 2019 Carswell Ont 20008 (Ontario Grievance Settlement Board) (Anderson); Canadian Union of Public Employees, Local 1750 and Ontario (Workplace Safety and Insurance Board) (Carito), 2014 CanLII 30248 (ON GSB) (Brown); Ontario and OPSEU, Re (Union) 2015 Carswell Ont 3886, 253 L.A.C. (4th) 22 (Briggs); Procor Ltd and International Brotherhood of Boilermakers, Local 128 (Smith), Re, 2015 Carswell Ont 2494 (Trachuk); Canada Post Corp. v. C.U.P.W. (Boznianin) (2011) 208 L.A.C. (4th) 305 (Ponak); Canada Safeway Ltd. V. U.F.C.W., Local 247 (Tripp), Re, [2005] B.C.C.A.A.A. No. 61 (McEwan); OPSEU and Ontario (Ministry of Health and Long-Term Care), (Press) 2007 CanLII 46151 (ON GSB); Ontario (Ministry of Community & Correctional Services) v. OPSEU (Tardiel et al.) (2010), 202 L.A.C. (4th) 241 (Albertyn). [236] In reply the Union submitted that management did have the authority to assign Heather Murchison so that she would not have contact with the grievor. It said that Mr. Dykstra had testified to that effect and both DS Gautier and DS Marchegiano had told the grievor that they would do so. The Union also submitted that its evidence of Heather Murchison’s behaviours with others was not just with respect to her competence, but it also spoke to her verbal and physical aggressiveness. The Union submitted that the grievor’s concerns about - 66- reporting the 2010 incident were borne out by Sgt. Lacoursiere’s comments to him at the time. The grievor testified to that and to telling DS Marchegiano at the time. The grievor expected both of them to perform their due diligence in dealing with the matter by filing the requisite reports. Neither of them was called to give evidence to contradict the grievor’s account. [237] The Union also submitted that the evidence establishes that the harassment of the grievor did continue after the January 2014 events. It said that there was a course of conduct by the Murchisons against him, starting in 2010, continuing in 2014 and after as evidenced by his ORs, his verbal reports to management and by the findings in the LIR. It said that the harassment must be looked at in its entire context. [238] As to the Employer’s submission that the grievor was the aggressor in 2014, the Union submitted that the grievor was on duty in the control module when the Murchisons came in turn to provoke him, harass him, and, in the case of David Murchison, to threaten him with violence. They were said to have acted in concert and engaged in behaviours contrary to Ministry Policy and Bill 168. Neither Murchison was called by the Employer to give evidence. [239] In reply the Union clarified its position with respect to the role of gender in these circumstances. It submitted that it was not relying on the concept of gender discrimination under the Ontario Human Rights Code, rather, the Employer’s actions with respect to Ms. Wiggins are to be contrasted with that afforded to the grievor as a measure of reasonableness. That is, it was unreasonable of the Employer to not accord the same remedial assistance to the grievor as it had given to Ms. Wiggins. The Union said that its concerns with respect to the Ministry of Labour inspection was that the Ministry was not given all of the details of the situation that were known to the Employer. Regarding the allegation meeting held with the grievor on July 22, 2014, the Union submitted that the grievor was a “bit player” in the use of force involved, yet he was the only participant that was re-investigated. [240] The Union said that the Employer seemed to be submitting that the video evidence somehow contradicts the grievor, yet the grievor’s evidence is uncontradicted, as is that of the two co-workers in the module at the time who testified that they had to intervene because they took David Murchison’s words as threats of violence. It said that the length of time it took David Murchison to make those threats, less than ninety seconds, is irrelevant because those threats were made, as also found by Sgt. Cicak in the LIR. The Union submitted that the only inference that can be drawn from David Murchison’s appearance in the - 67- Control Module is that Heather Murchison had gone to report her altercation to him and that he returned to the Module to retaliate. [241] The Union also submitted that even if the LIR itself was not shared, the Employer ought to have shared its findings with the Union and the grievor. [242] The Union submitted that the parties have very different views of Mr. Parisotto’s evidence. It said however that the Employer’s view of Parisotto’s oral evidence was that there was to be no contact between the grievor and the Murchisons. [243] The Union said that a careful review of Parisotto’s evidence will disclose that it took a lot to get him to agree that the page in the LIR requiring his signature did not exist. [244] The Union said that the grievor gave the only account of his discussions with Ms. Francovich, and there is no reason to disbelieve his uncontradicted evidence. [245] The Union submitted that through the entire process of investigating David Murchison, the grievor was kept in the dark. It said that Heather Murchison’s behaviour after January 2014 was verbally aggressive, took place in concert with the actions of David Murchison and amounted to an attempt at violence contrary to Bill 168. The grievor’s testimony that he reported his reasonable fears and concerns to DS Marchegiano are uncontradicted and ought to be accepted. The grievor went to DS Marchegiano in 2010 and in December 2013. He told Marchegiano that Heather Murchison was a danger to him; both Marchegiano and Gautier promised that she would not be put on his unit. The Union submitted that after she was put on his unit the grievor went back to Marchegiano to reiterate his fears. Marchegiano told him to give it time. However, time produced the events of January 2014 as concluded in Sgt. Cicak’s LIR, the results of which report were kept from the grievor and Union until disclosed in these proceedings. Analysis and Decision [246] In these matters the Union has filed three grievances on behalf of Robert Plouffe. The first grievance is dated January 27, 2014. The details of the incident at issue are set out on the grievance form reproduced above. For convenience I reproduce it again here: I grieve articles 2, 3.3 and 9.1 of the collective agreement and any other acts, articles and or legislation. Regarding the incident on January 17, 2014 where I was harassed on duty in my work area (module) from a coworker. I proactively addressed this issue with management on 2 - 68- separate occasions with 2 different Deputies Superintendents 2 weeks prior to this incident. Management failed to make reasonable provisions for my health and safety. [247] Included on the grievance form is the following as the “Settlement Desired”: Full redress Any and all entitlements under the collective agreement 15 days in lieu to be used at my convenience. [248] Appended to, and forming part of the grievance is the “Grievor Summary”, which reads as follows: I asked both Deputies to keep (H. Murchison) off Unit #9, because I was assaulted by her in the past. My requests were ignored & (H. Murchison) came to Unit #9 to work. (H. Murchison) got her husband (D. Murchison) to come to Unit #9 module to threaten my health & safety (to fight me). (H. Murchison) was the cause of these threats from her husband. Remedy sought (be specific): 15 anytime personal days [249] The grievor’s summary is a succinct recap of the incidents that took place in the Unit 9 module on January 17, 2014. The grievor filed a detailed Occurrence Report (OR) that day setting out what had taken place. That OR is set out above. Both the OR and the grievance refer to a “previous incident” that the grievor described as an “assault”. [250] The grievor was asked to, and he did, file an OR relating to the “previous incident”. That OR is reproduced above. It is dated January 28, 2014, the day following the filing of the first grievance. The incident referred to was said to have taken place on May 7, 2010 in Unit 9. The uncontroverted evidence is that such an incident did occur. The OR identifies the three Corrections Officers who witnessed it as being CO Grover, CO Wakenhut, and CO Strickland. All three COs testified before me. None were interviewed by the Employer after the grievor filed his OR with respect to his allegation that he had been assaulted in the workplace by Heather Murchison. [251] CO Grover’s evidence on this point is summarized above. In his evidence before me, Grover added to his OR that Sgt. Lacoursiere was also present for the assault and was in a position to witness what took place. In his cross- examination, Grover was passed by on his evidence related to this incident. He also testified that he did not file an OR because he was not asked to do so. - 69- [252] CO Wakenhut’s evidence on this point is summarized above. He too testified that Sgt. Lacoursiere was present at the incident and was the manager of Unit 9 at the time. Mr. Wakenhut testified that he did not write an OR because Sgt. Lacoursiere did not ask him to. [253] CO Strickland testified. His evidence on this point is summarized above. His evidence included that CO Heather Murchison kicked the grievor’s chair and hit him on the head with her rolled up video dockets. In his cross-examination, Strickland was passed by on his evidence related to this incident. Strickland was not asked to file an OR and did not file one on his own accord because that was “not something we did”. [254] The grievor testified at the hearing. His evidence on this point is found in his OR. His evidence in-chief was that he had been kicked and hit on the head by Heather Murchison. In his cross-examination he testified that he did not file an OR because Sgt. Lacoursiere had seen the incident. The grievor believed that Lacoursiere would submit an OR because he had witnessed it and he was the manager of the unit where the event took place, and it was his duty to file a report. The grievor also testified that another reason that he did not file an OR at the time was because Lacoursiere had belittled him for being beaten by a woman. The grievor also testified that he had reported the incident to Deputy Superintendent Marchegiano at the time. As set out above, the grievor gave brief evidence of that conversation. It was also the grievor’s evidence that he told Deputy Superintendent Gautier in December 2013 about the 2010 incident. He did so because he had learned that Heather Murchison was about to be posted to his unit, Unit 9. He was concerned about the possibility of a repeat of the 2010 incident. [255] DS Gautier confirmed in her evidence that the grievor had reported the 2010 incident to her in or about December 2013. The grievor testified that Gautier assured him that Heather Murchison would not be posted to Unit 9. Gautier’s evidence on this point is summarized above. In chief she recalled being told by the grievor of the 2010 incident but could not recall any details. She did recall speaking to DS Marchegiano about the 2010 incident; they concluded that there was not much that they could do about it after so much time had passed. In her cross-examination she agreed that the grievor was being pro-active in trying to prevent Heather Murchison from coming to work on Unit 9. Gautier also confirmed that in 2010 the prevailing ethic in the workplace continued to be not to report on the misdeeds of a co-worker; that is the so-called “Code of Silence” that has been referenced in GSB Decisions and is notoriously known to exist in correctional institutions. Gautier gave personal evidence of the operation of this - 70- so-called Code of Silence which had been inflicted upon her in the past, as the result of her having reported the truly appalling behaviour a co-worker exhibited towards her, the details of which are set out above. [256] Gautier also testified that she significantly underestimated the degree to which Heather Murchison would be required to work with the grievor as a Video Remand Officer, should she be posted to Unit 9. [257] In my view there can be no doubt that Heather Murchison physically assaulted the grievor on May 7, 2010. It was witnessed then and corroborated in evidence at the hearing by the grievor, Grover, Wakenhut and Strickland. It was also witnessed by Sgt. Lacoursiere, the Manager of the Unit, who was not called as a witness by the Employer. Given that the Union’s evidence on this point is a cogent, clear and consistent account of the incident, it is not critical to my finding that an assault took place to also draw a negative inference from Lacoursiere’s failure to testify, but I do draw that inference. His failure to appear was but one of the many unexplained gaps in the Employer’s evidence. [258] It is also beyond doubt that the Employer knew of this assault of the grievor by Heather Murchison prior to the events of January 17, 2014. I have found that Lacoursiere, the Manager in charge of Unit 9, witnessed the incident. There is no evidence that he did anything about the assault. Given his failure to testify it is more likely than not that he did nothing to report it. I accept the grievor’s evidence that he was belittled and made fun of by Lacoursiere for having been beaten by a woman. Further, Gautier’s evidence about the effect of a failure to follow the so-called Code of Silence was a stark and appalling example that endorses the grievor’s, and the other witnesses’, reluctance to report on another CO. That behaviour is consistent with Lacoursiere’s failure to report a physical assault by one CO upon another. Further, I accept the grievor’s evidence that he reported this incident to DS Marchegiano shortly after it occurred. For the grievor to have made only a verbal report to Marchegiano was also consistent with the Code of Silence and with the prevailing ethic of informally dealing with such matters, as was testified to by Wakenhut. [259] It is clear that the grievor reported his concerns to DS Gautier in December 2013 regarding Heather Murchison becoming the Video Remand Officer for Unit 9 and his concern that this might result in a repeat of the violence he experienced in May 2010. Both the grievor and Gautier testified that such a meeting took place. I prefer the grievor’s testimony to that of Gautier’s that she assured him that he and Heather Murchison would not be working together. On the evidence before me, Gautier did not have a clear recollection of the details of their conversation. - 71- Although she testified that she would have only assured the grievor that everything would turn out fine, her slim recollection of the event and her misunderstanding of the degree to which the grievor and Heather Murchison would have to work together gives weight to the grievor’s account. She believed that there would be only incidental contact. That is, it was an easy assurance to give because she believed that nothing negative could or would come of the posting. She also agreed in her cross-examination that she may have hugged the grievor at the end of their exchange, as the grievor had testified did occur. In my view, it is more likely than not that she did promise the grievor that he would not have to work with Heather Murchison. Like the hug, this was also a “stretching of boundaries”, which she agreed in evidence was a characteristic of hers. [260] The Employer submitted in final argument that there were no incidents involving the grievor and Heather Murchison between May 2010 and January 2014, which thereby limited its knowledge and therefor its ability to take formal action. For the reasons set out above, it was not surprising that neither the grievor nor his coworkers filed ORs in 2010. as Strickland testified, it was not something they did. Nor is it surprising the grievor did not file a grievance. He believed that Lacoursiere would have reported it, as he was required so to do. Further, there were no further problems between the grievor and Heather Murchison in the intervening time period. However, whatever else did or did not occur between May 2010 and January 2014, there is no doubt, on the evidence, and I find as a fact, that before the events of January 17, 2014, the Employer knew that the grievor had been previously assaulted by Heather Murchison and knew of his concerns with respect to working with her. To that end we have Gautier’s evidence that she and Marchegiano rejected taking any action on the assault in 2010. We also have Gautier’s evidence that she seriously misunderstood the degree to which the grievor and Heather Murchison would be required to work together. I also accept as fact the grievor’s evidence that, because Gautier was on vacation, he went to Marchegiano in the new year of 2014, after Heather Murchison arrived in Unit 9 and before the January 17, 2014 incident and told him again about the 2010 assault. We also have the fact of Gautier’s assurance that Heather Murchison would not be posted to Unit 9. The grievor’s evidence in that regard is uncontradicted, and I accept it as true, as is his evidence that he was told twice by Marchegiano that Heather Murchison would be removed from Unit 9 within days. I draw a negative inference from Marchegiano’s failure to testify in this regard. That is, had he come before the Board and told the truth, he would have corroborated the grievor’s account. - 72- [261] In the LIR Sgt Cicak made a number of findings of violations of Ministry Policy and Ontario Provincial Statutes by the grievor and/or CO David Murchison. Each of the findings is set out after citing the policy or statute involved. The LIR’s findings are as follows: … --Correctional Officer Plouffe is in violation of a Security and Controls Policy as he did leave the module unattended and the door ajar as seen on the DVR. As well as allowing access to the Module to Correctional Officer D. Murchison who was not assigned to unit 9. … --Correctional Officer Plouffe is in violation of the Technology policy and the memorandum issued by the Assistant Deputy Minister of Institutional Services, as he is seen to be using an electronic device (cell phone) on the DVR. … --Correctional Officer D. Murchison is in violation of the Institutional Memo issued by the Deputy Superintendent of Operations as he was on unit 9 an area he was not assigned duties to and he did not receive nor ask permission from Sergeant Sawyer to be in the area. … --Both Correctional Officer Plouffe and Correctional Officer D. Murchison are in violation of the Statement of Ethical Principles. Both Officers engaged in unprofessional behaviour by yelling at one another while on duty. … --Correctional Officer D. Murchison is in violation of the Staff Conduct Policy as he did threaten to harm Correctional Officer Plouffe by calling him on to engage in a physical altercation. … --Correctional Officer D. Murchison is in violation of the Workplace Violence Prevention Policy as he is seen on the DVR shaking his finger towards Correctional Officer Plouffe in an aggressive manner. … --Correctional Officer D. Murchison is in violation of the Occupational Health and Safety Act, Bill 168, as he did say to Correctional Officer Plouffe, in the presence of others, to ‘step out of the module and settle this in the yard’. [262] Upon my review of the Policies and Statutes considered by Sgt. Cicak, and the evidence before me, I agree with the findings above. [263] Sgt. Cicak went on to make the following observations regarding D. Murchison’s comments during his interview: [8] During the course of this writers interview (January 22nd 2014, 1350- 1358 hours) with Correctional Officer D. Murchison he did state to this writer that he “intention when speaking with Correctional Officer Plouffe - 73- was not to fight but to talk privately in the yard or outside. Correctional Officer D. Murchison felt that what he said was misinterpreted by Correctional Officer Plouffe. Correctional Officer D. Murchison did also state to this writer that he is “willing to apologise to Correctional Officer Plouffe and attend mediation”. Correctional Officer D. Murchison also stated several times that he was “remorseful”. [264] David Murchison’s expressed belief to Cicak that the grievor had misinterpreted his intentions is an unreasonable statement, given the ORs provided to Sgt. Cicak and entered here as part of the LIR; those ORs are set out above. The testimony before me adds irrefutable weight to my view that that belief is not reasonable. [265] Manifestly, those eyewitnesses to the altercation were of the view that David Murchison was challenging the grievor to a fight. Cicak found that David Murchison had violated both the Workplace Violence Prevention Policy and Bill 168. I find in all circumstances that it is more likely than not that David Murchison was not remorseful, because he did not accept responsibility for what he had actually done, choosing instead to maintain that he only wanted to talk to the grievor. That was a compelling conclusion which was ignored by the Employer. On this evidence the Employer’s failure to deal seriously with Murchison’s behaviour, as it relates to the January 17 incident, supports the grievor’s account that the Employer failed to protect him from the Murchisons' behaviour toward him after January 17. [266] Sgt Cicak’s evidence is that she completed her report and submitted it to one of either Gautier or Marchegiano. Gautier testified that she did not recall receiving a copy of the LIR, accordingly, it is more likely than not that Marchegiano received the report from Cicak, along with the documentary and video evidence that Cicak testified that she had submitted to one of the two of Gautier or Marchegiano. Sgt. Cicak confirmed in her evidence that the LIR was to be reviewed by the Superintendent, signed off by him and then by ascending tiers of management. [267] The Superintendent at the time was Mark Parisotto, who testified on behalf of the Employer. Parisotto’s sworn evidence was largely general in tone and lacked the specificity to be expected from one responsible for an institution such as Maplehurst. Parisotto did confirm that he knew of the grievor’s report of being previously assaulted by Heather Murchison in 2010. He testified that he learned of that in December 2013. He also learned of the incidents of January 17, 2014 around the time or just after they took place. Notwithstanding his admitted state of knowledge at the time, he testified that, essentially, he was unsure whether he - 74- had read Cicak’s report, although he did recall being briefed on its contents by either Gautier or Marchegiano; yet he could not say which of the two Deputy Superintendents of Administration had briefed him. It defies understanding why the Superintendent in charge of the institution, who knew that Heather Murchison was accused of assaulting the grievor, who had been briefed that on January 17, 2014 Heather Murchison had verbally assaulted the grievor in the control module and that her husband had challenged the grievor to fight him in either the yard or in the control module of Unit 9, took such little interest in the situation that he had virtually no recollection of its details. He sheltered his vague recollections by counting the significant events of January 17, 2014 as just one of the 250 incidents per year that would be reported to him by either, or both, of Gautier and Marchegiano. If nothing else, that underscores Gautier’s evidence before me that Maplehurst was a “conflicted chaotic workplace”. [268] Parisotto underpinned this evidence by saying that in the instant circumstances he could not say whether it was one or the other or both who had discussed these matters with him. That is, his recollection did not ever really rise to the specifics of this situation, notwithstanding Cicak's adverse findings in the LIR of the serious misconduct attributed to David Murchison. [269] Parisotto did recall that he gave directions as to where the grievor and the Murchisons, being the parties to the events of January 17, could be assigned to work in order to keep them separate. That testimony supported that of the grievor that there was a “no contact ban” in effect that would protect him from further harassment and threats from the Murchisons. Seemingly, on the totality of the evidence before me, those directions were given to one or both of Gautier and Marchegiano. [270] Notwithstanding his direction to separate the grievor and the Murchisons, in his evidence before me Parisotto said that he had dismissed the grievor’s subsequent concerns, as expressed in the grievor’s ORs, about the breaking of the no-contact ban by Heather Murchison as not being violations of required standards. I find that that was a facile answer which ignored or attempted to finesse the failure of his management team to follow his direction to keep the involved parties apart. It was one more general answer to an important specific question. The fact is that Parisotto put in place a specific standard for the institution's management to follow, which was that the grievor be protected from contact with the Murchisons. After the January 17 incidents and the Employer’s failure to even discipline David Murchison for threatening to fight the grievor in the control module or in the yard, the grievor’s complaints of continued harassment at the hands of the Murchisons went unheard. The Employer did - 75- nothing to help the grievor. His entreaties went unaided. Taken individually, each incident reported by the grievor in his ORs or verbally seem somewhat trivial. However, taken together, it is evident that the Murchisons went on a campaign of harassing the grievor. [271] Parisotto’s apparent inability to engage either at the time or at the hearing with the details of these events in the life and culture of Maplehurst significantly diminished his value as a witness in these proceedings. My conclusion in this regard is supported by his recollection and grasp of the granular details of the minor incident between CO Bowerman and CO Heather Murchison. It was Gautier’s evidence that the incident was very minor in scope. She said that Heather Murchison had only pulled on Bowerman’s vest. As set out above, Parisotto’s testimony detailed his review of the video-tapes of the Bowerman incident and of the investigation as a whole. His attention to this incident is in contrast to his vague attention to allegations substantiated in an LIR that David Murchison had violated the Workplace Violence Prevention Policy and the Occupational Health and Safety Act in his assaultive and violent behaviour towards the grievor on January 17, 2014. This differential treatment adds weight to CO Yole’s recounting of the conversation with Marchegiano in which Marchegiano asked what he should do with someone, (H. Murchison), who had been coddled and protected for thirty plus years. Neither Marchegiano nor Deputy Superintendent F. Dhouri were called as witnesses to dispute Yole’s evidence. I accept Yole’s account as true and find as a fact that the Murchison’s were permitted to engage in prolonged, bitter hostility toward the grievor despite the grievor’s continued complaints to management about their conduct and management’s failure to protect him from it. The behaviours to which the grievor was subjected are to be viewed in the context of Heather Murchison’s unfailing belief that the grievor was responsible for the lost four hours of overtime in 2010 and David Murchison’s relentless protection of his spouse’s honour. Gautier’s evidence also supports these conclusions. [272] I find that Parisotto failed to take the grievor’s concerns seriously in spite of his knowledge of the seriousness of the situation, which was evident from the grievor’s complaints in his ORs, WDHP Complaints, Complaints to the Ministry of Labour, the Office of the Integrity Commissioner of the Legislative Assembly of Ontario and his verbal reports to members of the Employer’s management team at Maplehurst throughout the 2014 and 2015 calendar years following the incidents of January 17, 2014. Further, I find that the LIR was, in essence, buried in that it did not receive the attention from the Superintendent that the Ministry, his employer, required. He said that he was briefed on its contents, but - 76- does not know if he read it. He had no explanation for why he had not signed off on it in Part C. He actually testified to the effect that he did not know why it was not signed, because it was not signed, yet it was his obligation to sign it. Nor could he account for why it had not gone up the management chain as required. Cicak and Gautier testified that completion of Parts B, C, D, and E was a requirement, yet the evidence before me supports a finding that this LIR, with its serious findings of a correctional officer attempting to goad another correctional officer to fight there in the module or out in the yard, went nowhere. Further, the failure to provide Cory Harris with all relevant documents, including the LIR, for his review of the two WDHP complaints was a breach of management's duties and responsibilities to the Ministry and to the grievor. The LIR is dated February 11, 2014. The WDHP complaints are both dated July 15, 2014. The Ministry of Labour Inspector was told on July 25, 2014 that "a workplace violence programme is in place, and is being followed." Dykstra and Marchegiano were both at that meeting. One or the other or both knew or ought to have known of the LIR's findings of the various serious breaches of that and the other policies set out in the LIR, but they did not disclose the LIR to him. [273] As for the grievor's complaint to the Integrity Commissioner, her letter to the grievor, dated October 14, 2015, sets out that the Integrity Commissioner accepted jurisdiction and appointed the Deputy Minister for Community Safety and Correctional Services to investigate, what the Integrity Commissioner styled in the first paragraph of her letter, the grievor's, "disclosure of wrongdoing to this Office." That is, the Deputy Minister for the grievor's Ministry was charged with the investigation of allegations of wrongdoing in his own Ministry. Of course, there is no record of what, if any, enquiries he made. For example, how far down the managerial chain did he descend to gather his "additional information"? One can surmise that it would be at least as far down as the grievor's Regional Director. As a matter of interest, the Regional Director was the final management level that never signed off on the LIR. All we know is that Mr. Rhodes subsequently provided unparticularized information to the Integrity Commissioner, asking that she reconsider whether she had jurisdiction. She did reconsider, and then she declined jurisdiction. The letter received by the grievor reads in part as follows: During the preliminary phase of the investigation, the Deputy Minister provided me with additional information about the allegations. In light of this new information, the Deputy Minister asked me to reconsider whether I had jurisdiction under section 117 of the PSOA to deal with your disclosure. For your information, section 117 states that I must refuse to deal with the disclosure if one of nine circumstances listed in the section exists. - 77- Decision The Office engaged in a thorough review of the information that was provided by the Deputy Minister. Having carefully considered this information, I have determined that I no longer have jurisdiction to deal with your disclosure because of section 117.9 of the PSOA, which states that: 117. Where the Integrity Commissioner receives a disclosure of wrongdoing under section 116, the Commissioner shall refuse to deal with the disclosure if one or more of the following circumstances apply: . . . (9) There is a valid reason, other than a circumstance described in paragraphs 1 to 8, for not proceeding with the disclosure. In regards to the allegations involving the assaults against Mr. Bowerman and Mr. Ewing, I am declining jurisdiction over these because they have already been dealt with by the Ministry and my involvement would result in duplication of work. In regards to the allegation that you were assaulted in 20I0, it appears that it forms part of a much broader, and complex, workplace relationship issue between you, Mrs. Murchison and others. I am declining jurisdiction over this allegation because I am of the view that the 2010 alleged assault should not be investigated in isolation from the remainder of this workplace relationship issue, which is being dealt with in various other forums. I will be closing my file on this matter. The information that you have provided to this Office will continue to be confidential after I do so. Thank you for making your disclosure with the Office. I know that it takes a lot of courage to come forward and appreciate you doing so. [274] As had often been the case, the grievor had no detailed knowledge of what information had been provided by Mr. Rhodes to the Integrity Commissioner that brought a halt to his complaints. In his evidence, the grievor testified, as set out above, that: "Stephen Rhodes said the right things to make it go away.” [275] Mr. Rhodes was not called by the Employer to testify about what he said to the Integrity Commissioner to cause her to decline jurisdiction. For the grievor this was just another example of senior, management employees in the Ministry of Community Safety and Correctional Services preventing his situation from being rectified. Without disclosing, in detail, what this "additional information" was, the Integrity Commissioner denied the grievor his basic right to know and respond, - 78- that is, the rule audi alteram partem, to what hurdles he faced to get satisfaction. These private discussions between the Deputy Minister and the Integrity Commissioner seem to me to be quite an extraordinary circumstance, that lacked transparency and once again thwarted the grievor's search for help. [276] The WSIB determined that the “incidents of May 07, 2010 and January 17, 2014 met the criteria for sudden and unexpected traumatic events “amounting to” a Traumatic Mental Stress injury. In my view the actions and omissions of management were the cause of the harassment that resulted in the January 17, 2014 incident and allowed the harassment of the grievor that followed to flourish. He finally went off work permanently on January 29, 2015 following a final encounter with David Murchison. [277] The Union put into evidence a number of medical reports relating to injuries to the grievor’s mental health as a result of his experiences with the Murchisons at work, as well as the failure of the Employer to prevent contact with them, notwithstanding its undertakings to do so. As set out above, questions of remedy have been bifurcated. Accordingly, it is sufficient to say that the medical reports concluded that the workplace accident, cited as being the ultimate incident with David Murchison on January 29, 2015, had caused him psychological damage. They review his history of difficulties in the jail, relying on his descriptions, which descriptions reflect his evidence before me. As was the case in Stina supra, “The malignant impact of abuse and harassment, coupled with the failure by members of supervision to consider and investigate [the grievor’s] complaints is borne out by the medical [evidence].” [278] The reactions from the Employer’s management team at Maplehurst to the grievor’s harassment by the Murchisons throughout 2014 included Parisotto’s disinterest throughout the year described above as well as Dykstra’s attempted reprisal in June 2014 in trying to breathe life into an old allegation of use of force in which the grievor was a minor participant. It also included OM16 McCabe’s verbal aggression against the grievor when he tried to use the Unit 8/9 lunchroom to write an OR. On the whole I accept the grievor’s evidence on all of these events because it accords with the preponderance of the probabilities. The Superintendent, as the senior manager at Maplehurst set the tone of disinterest in the grievor’s plight, which left the grievor to suffer the treatment he received from the Murchison’s and managers alike. [279] I turn now to my consideration of the jurisprudence relied upon by the parties. First, I agree with the authorities relied upon by the Employer which stand for the proposition that for behaviour to be found to be harassment, the subjective belief - 79- of the complainant is not the test, rather the behaviour must be such that a “reasonable person, informed by all relevant facts would conclude the impugned behaviour would constitute harassment or bullying if the perpetrator knew or ought to have known that it was unwelcome.” See: GSB: (Soloman Smith et al) (Anderson), supra; GSB: (Carito) (R. Brown), supra: GSB: (ANON) (Briggs), supra; Procor (Smith), (Trachuk), supra). I have also considered the authorities relied upon by the Employer dealing with non-disciplinary transfers (see Canada Post (Bosnianin), (Ponak), supra; Canada Safeway (Tripp), (McEwen), supra). In the instant matter there was no transfer effected to deal with the situation, nor is there evidence that a disciplinary or non-disciplinary transfer was seriously considered. Accordingly, these cases were not helpful in coming to my decision. I have also considered the authorities related to the reasonableness of the employer’s responses: In GSB: (Press), (Mikus), supra, the Vice-Chair was of the view that the employer’s suspension of that grievor was compliant with the employer’s obligation to make “reasonable provisions”. With respect to GSB: Tardiel, (Albertyn), the Employer in the instant matter submitted that the assessment of an employer's response under article 9 does not proceed on the basis that the employer is strictly liable for unsafe or unhealthy conditions. I agree that it is not a strict liability test. I also agree with Vice-Chair Albertyn: "The Employer is liable only to the extent of its knowledge and its failure to respond appropriately." (see paragraph 132). In the instant matter, as set out above, when I consider the employer’s responses as a whole, there were no comprehensive responses to the grievor's concerns. Indeed, there was little recognition that there was any problem; I find that he was essentially ignored. [280] In Stina, supra, Arbitrator Shime put forth the following definition of abuse and harassment at paragraphs 248 and 249: 248 Abusive conduct includes physical or mental maltreatment and the improper use of power. It also includes a departure from reasonable conduct. 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, many also constitute harassment. [281] The treatment of the grievor by the Murchisons meets the definitions of abuse and harassment proposed by Arbitrator Shime. Bill 168 added the following definitions to the Occupational Health and Safety Act: - 80- 1. Subsection 1(1) of the Occupational Health and Safety Act is amended by adding the following definitions: “workplace harassment” means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome; (harcèlement au travail”) “workplace violence” means: (a) the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker, (b) an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker, (c) a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker. (“violence au travail”) [282] The Stina decision predated Bill 168. On either formulation, the grievor was harassed on a consistent and constant basis by the Murchisons. With respect to David Murchison’s action on January 17, 2014, it is apparent that David Murchison violated sub-paragraphs (b) and (c) of the definition of “workplace violence” in Bill 168, supra. These conclusions were reached by Cicak in the LIR and are conclusions with which I agree, as set out above. [283] Manifestly, both Murchisons engaged in a course of “workplace harassment” against the grievor, as defined by Bill 168, supra. On the totality of the evidence relating to the events of January 17, 2014, I find that is more likely than not that Heather Murchison went into the module to confront and harass the grievor over her continued belief that the grievor had caused her to miss a four hour overtime shift in 2010. She left the module and reported the grievor’s behaviour toward her in the module to her spouse David Murchison, who went to the module to defend his wife, leading to his breaches of Bill 168 set out above. This was the conclusion reached by DS Gautier and is a conclusion that is most probable having regard to all of the reliable evidence. The Employer is obliged under Article 9 of the collective agreement “to make reasonable provisions for the safety and health of its employees during the hours of their employment.” Accordingly, it is not enough for the Union to demonstrate that the grievor was harassed. For there to be a breach of article 9, the question is whether the Employer made all reasonable provisions for the safety and health of the grievor. The Employer was required to exercise the required diligence in discharging its obligations under article 9. The obligation is to investigate allegations of - 81- breaches of article 9. In GSB (Louis), supra, that obligation was described as follows: 93. The employer was duty bound to thoroughly investigate the allegation of assault and the allegations that her treatment by her coworkers was racially motivated. As set out above, there was simply no serious investigation of those allegations notwithstanding the duty of the employer [sic] investigate such allegations. The Employer submitted that the grievor’s lack of specificity in complaining to management meant that the responses taken by management were reasonable in the context. That is, it had exercised its due diligence. In Ranger (supra) Vice Chair Leighton quoted with approval, at paragraph 80, the following excerpt from Chan, (1990/90): There is no strict liability on the employer, in that merely because an employee racially harassed or put another employee at a health or safety risk, the employer is thereby exposed to liability. The employer’s liability depends on its knowledge of the offensive conduct and its response to it. However, in considering the employer’s knowledge the test is not purely subjective. If the employer lacked knowledge because it showed a lack of interest or did not have a reasonable system for detecting and monitoring of offensive conduct, this does not exonerate it. To hold otherwise would be to make the obligation imposed on the employer by the collective agreement provisions meaningless. The employer would be able to circumvent that obligation by merely closing its eyes and ears. The parties could not have intended that. 94. For the reasons set out above, I find that the employer did not take reasonable steps to deal with the complaints advanced by the grievor. The employer did not show nearly the degree of diligence it ought to have in investigating the grievor’s complaints. The Employer is liable for those failures. [284] The analysis by this Board of the employers' responsibilities under article 9 is long established. In Chan (1990/90), cited with approval by Vice-Chair Leighton in Ranger, OPSEU v Ontario (Ministry of Community Safety & Correctional Services) (Ranger Grievance), [2010] O.G.S.B.A. No 18 (Ont Grievance S.B.) (Leighton), the Board formulated the test thusly: “The employer’s liability depends on its knowledge of the offensive conduct and its response to it”. In the instant matter, the Employer had Cicak complete an investigation, and she did, producing a thorough summary of the facts and her findings of culpability. However, the Employer did nothing with the LIR even though it was, in the very - 82- least, more likely than not submitted to DS Marchegiano who briefed Superintendent Parisotto. There was no institutional response to this damning report. Even accepting the Employer’s submission that it could not reasonably foresee David Murchison’s behaviour on January 17, 2014, had it paid any attention to the LIR's findings it was reasonably foreseeable that the grievor remained in harm’s way from both Heather and David Murchison. It was at this juncture that there was no serious investigation of the subsequent harassment to which the grievor was subjected by them. [285] However, the Employer, as represented by DS Gautier, was told by the grievor in December, 2013 that Heather Murchison presented a future danger because of having assaulted him in the past. That is a fact that negates any need for me to turn my mind to any issue of reasonable foreseeability. From Gautier's testimony it is clear that she and Marchegiano did not question the fact of the 2010 assault, upon which the grievor based his fear; they only felt that nothing could be done with such a stale report. [286] Vice-Chair Mikus considered the Employer’s obligations under article 9 to be continuous. In Groves, GSB 2008-3971 at paragraph 97 as follows: 97. I find the Employer did fail to ensure a workplace free from discrimination and harassment. It failed to meet its obligation to investigate in a complete and thorough manner the real complaints of the grievor. It was of the view that because it and CO Levy were unaware of the grievor’s disability, her remarks could not have been discriminatory. When the remarks continued after she/they were aware, it had a responsibility to investigate. Mr. Roth decided that he only had to act if the grievor could identify who was throwing these insults. That was not the grievor’s responsibility and, in any event, the fact they were unidentified at the time is not an excuse to ignore such a serious situation. Finally, Mr. Roth’s attitude that posting another memo about discrimination and harassment would be a waste of time is unacceptable. The battle against both of them is continuous and when one avenue fails, the Employer has a duty to look for another. Otherwise, it never ends. People ignore warnings because they have no follow-up consequences. [287] Arbitrator Shime had the opportunity to consider the Bill 168 amendments in ATU v TTC (Merolle), supra, a case involving the discharge of an employee with a history of workplace violence. The following quote from Arbitrator Shime is instructive in the instant matter and repays reading on many levels. It reads as follows in paragraphs 32 through 34: - 83- 32 . . . Work is a fundamental and important part of a person's life and is a place where a person spends a significant part of his/her life. In Reference re Public Service Employee Relations Act (Alberta), [1987] I S.C.R. 313 (S.C.C.) at p. 368, Chief Justice Dickson made the following statement, Work is one of the most fundamental aspects in a person's life, providing the individual with a means of support and as importantly a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being. The importance of work and the time spent working is reflected in various statutory provisions which are intended to enhance and improve the work experience. The enactment of legislation such as, Employment Standards Legislation and Health and Safety Legislation are intended to improve the work experience. Human Rights legislation and the recent anti-violence amendments to the Occupational Health and Safety Act regulate workplace conduct by prohibiting conduct such as discrimination, sexual harassment, workplace violence and harassment. In my view, the regulation of conduct is to promote civility in the workplace. Employees should not have to enter the workplace fearful that they will be harassed, sexually harassed, discriminated against or be subjected to threats, abuse or violence. 33 Also, there is an emotional and psychological aspect to the workplace which must be considered. The House of Lords in England, in Malik, v. Bank of Credit & Commerce international SA (1997), [1998] A.C. 20, [1997] 3 All E.R. 1 (U.K. H.L.), has commented on the duties of an employer as follows: "Lord Steyn of Hadly recently noted the changes which have taken place in the employment and employee relationship with far greater duties imposed on the employer in the past, whether by statute or judicial decision to care for the physical, financial and even psychological welfare of the employee." (emphasis added) The duty to care for the psychological welfare of the employee is a manifestation of an employer's responsibility to maintain civility in the workplace. To that, I would add that it is also the responsibility of the union and the employees to maintain a civil workplace. 34 It is in that context that the new statutory requirements of the Occupational Health and Safety Act, 2009, C. 23, S.3, part 111, 0.1 concerning workplace violence and workplace harassment, as - 84- well as the TTC's workplace violence policy must be considered. The policy prohibition which prohibits comments about causing harm to an employee, including gestures or expressions of harm is intended to promote civility in the workplace, by eliminating workplace violence and harassment. A work environment is not a place where one performs a set of tasks and no more, it is a place that now requires civility on behalf of all workplace participants which includes concern for everyones' physical and psychological welfare. [288] I note that in Arbitrator Shime's passage above the embedded quote from the House of Lords decision in Malik is a misconstruction of a quote from that decision, which in turn quotes Spring v. Guardian Assurance: [1994] UKHL 7 (07 July 1994). [289] The embedded quote should read as follows: Lord Slynn of Hadley recently noted "the changes which have taken place in the employment and employee relationship, with far greater duties imposed on the employer than in the past, whether by statute or judicial decision, to care for the physical, financial and even psychological welfare of the employee” (emphasis added) [290] From my reading of the medical reports that form part of the record in these matters, and the grievor's testimony, the grievor’s job as a correctional officer was indeed an “essential component of [his] sense of identity, self-worth and emotional well-being”, which is a component of the reasons of Dickson J. in the Reference case cited above by Arbitrator Shime. In his typically inciteful manner, Mr. Shime synthesized the conduct regulated by the then new Bill 168 as being “to promote civility in the workplace”. Mr. Shime went on to say that, “Employees should not have to enter the workplace fearful that they will be harassed, sexually harassed, discriminated against or be subjected to threats, abuse or violence.” The grievor in these matters, Rob Plouffe, testified that he went to work every day fearful that he would be harassed and quite possibly subjected to threats, abuse or violence. I find as a fact that he did go to work each day with those fears. [291] Mr. Plouffe also suffered physically, financially and psychologically. As I set out above, each individual complaint of his sounds somewhat trivial; that is certainly how Parisotto considered them, trivial. Yet cumulatively the harassment built up to be devastating. His final OR, complaining of how he had been treated is the last cry for help from a broken man. It reads as follows: - 85- Sir, on Thursday January 29/15 approx 1910 I was working Unit #9 floor. I was in Unit 9 Programs working. I heard the Programs door open & in came CO (Dave Murchison) with a visitor. I looked at CO (Dave Murchison) & he started to smile at me. Followed by an intimidating glare. I saw CO (Dave Murchison) leave 7 I immediately called the supervisor on shift OM16 (Essery) & explained to him about CO (Dave Murchison) coming into Unit #9 Module & threatening my safety & wanted to fight me, I asked OM16 (Essery) to please keep CO (Dave Murchison) off Unit #9 for remainder of my shift because I am afraid of CO (Dave Murchison) & fear for my safety. OM16 (Essery) complied with my request and then asked me what was being done about this situation, I explained to him that nothing had been done about my health & safety. I feel that Mr. (Parisotto) is still choosing to ignore (Workplace Violence Prevention Policy) (the Code of Conduct) (Zero Tolerance for Violence at The Workplace. Bill 168 - Anti-Bullying at the Workplace). I feel if these Policies & Procedures were followed by (Mr. Parisotto) I would not be afraid to go into work & not be in fear of being attacked physically and verbally by CO (Dave Murchison) & (Heather Murchison) again. [292] Mr. Shime cited the United Kingdom’s House of Lords in his excerpt above, which describes the duties of the Employer, and Mr. Shime extends those duties to the Union and the employees. He says, “The duty to care for the psychological welfare of the employee is a manifestation of an employer’s responsibility to maintain civility in the workplace." In the instant matter, not only did this Employer, particularly through the actions and inactions of Superintendent Parisotto, fail in this duty of care to maintain civility in the Maplehurst Correctional Complex, it tolerated, condoned and participated in the promotion of incivility against Mr. Plouffe. As Mr. Shime correctly concludes in the excerpt above, “A work environment is not a place where one performs a set of tasks and no more, it is a place that now requires civility on behalf of all workplace participants which includes concern for everyone’s physical and psychological welfare”. - 86- The Decision [293] The grievor is entitled to a declaration that the Employer failed to provide a workplace free from harassment of and threats of violence to him. That is to say, The Ministry of Community Safety and Correctional Services, through its management employees with responsibility for the Maplehurst Correctional Complex, dealt with the grievor, Rob Plouffe, in a contumacious and continuous abrogation of its duty of care to him and contrary to articles 2 and 9 of the collective agreement between the parties herein from and after December 2013, and I so declare. As agreed between the parties, and set out above, I remain seized of this matter with respect to any other remedies sought, howsoever characterized. Dated at Toronto, Ontario this 22nd day of November, 2021. “Dan Harris” ________________________ Dan Harris, Arbitrator