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HomeMy WebLinkAboutVan Woudenberg 22-05-02 IN THE MATTER OF AN ARBITRATION PURSUANT TO A COLLECTIVE BARGAINING ACT, 2008 B E T W E E N ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the “Union” or “OPSEU”) AND SHERIDAN COLLEGE (the “College”) Re: GRIEVANCE OF DR. vAN WOUDENBERG BEFORE ARBITRATOR: Jules B. Bloch APPEARANCES: OPSEU: Christopher Bryden, Counsel; Alex Zamfir, Grievance Officer; Dr. Maximillaan van Woudenberg, Grievor Sheridan College: Dan Michaluk, Counsel; Stephanie Samboo; Associate Dean, faculty of Humanities and Social Sciences. This matter was heard on September 10, 2019, October 2, 2019, January 16, 2020, March 3, 2020, April 1,14, 27, 2020, May 7, 2020, November 2, 2020, December 7, 22, 2020, January 14, 18, 2021, February 26, 2021, April 13, 2021, June 8, 2021, October 5,19, 2021. 2 Introduction 1. I was properly appointed by the parties to hear and decide several grievances associated with the employment of Dr. Maximiliaan van Woudenberg, a full-time professor in the Department of Humanities and Social Science at Sheridan College. 2. One grievance deals with Dr. van Woudenberg’s termination; the others concern issues relating to alleged harassment and human rights violations he has raised against the College. Dr. van Woudenberg has also filed a companion Human Rights Code, R.S.O. 1990 c. H. 19. (“HRC”) complaint at the Human Rights Tribunal of Ontario (“HRTO”), which is based on the same or similar facts that are the subject of the harassment grievances that are before me. 3. On September 2, 2020, I dismissed the harassment grievances, because Dr. van Woudenberg refused to provide particulars to the College regarding the circumstance of the alleged harassment. What remains and what this decision addresses whether the College has just cause to terminate the Grievor on February 28, 2017. 4. The College’s case in this matter is longitudinal and based on Dr. van Woudenberg’s alleged inappropriate interaction with colleagues and supervisory staff of the College from 2013 onward. In the alternative, the College asserts that, since 2016, Dr. van Woudenberg’s has communicated with Associate Dean Samboo in an adversarial, purposeful, and vexatious manner, which justifies discharge. Further, Dr. van Woudenberg refused to particularize three harassment grievances he filed on July 4, 2016. In his closing argument counsel for the College set out the substance of the College’s case in the following manner: • the psychological abuse of colleagues, including by alleging they have committed wrongdoing with reckless disregard for their wellbeing; • an oppositional employee who is not able to respect his Employer’s authority and who abused the grievance and other important workplaces processes in an attempt to gain power over his Employer; • the trap that faces a supervisor who can’t be seen to react to passive-aggression lest she undermine her authority; and • an employee proven to be unredeemable who destroyed his own employment relationship. OPSEU’s submissions for allowing the grievance 5. OPSEU asserts that this is a case about an Employer, and an Associate Dean, that could not tolerate Dr. van Woudenberg’s attempts to vindicate and enforce his rights under the Collective Agreement and the HRC. 6. The College, in OPSEU’s view, is attempting to have ancient incidents, which were historically tolerated by the College, form the basis of a termination. 3 7. Further, the College is attempting to put a different “spin” on findings and decisions reached by the Leighton panel, (Sheridan College v. OPSEU (van Woudenberg) unreported decision (March 12, 2019) or to make arguments that ought to have been made before that Panel, but which were not raised. 8. The Union posits that Associate Dean Samboo and the College have abused their managerial authority by terminating Dr. van Woudenberg without sufficient cause, because he exercised his rights under the Collective Agreement and the HRC. 9. OPSEU submits that the College has failed to apply the principles of progressive discipline. If discipline is warranted, a position OPSEU rejects, then a lesser penalty should apply instead of termination. 10. After carefully considering the evidence and submissions, and for reasons elaborated upon below, I am dismissing the grievance and upholding the termination. The reasons for termination 11. The Union filed a discharge grievance on the behalf of Dr. van Woudenberg on March 4, 2017. The College’s reasons for terminating Dr. van Woudenberg’s employment are found in a letter penned by Stephanie Samboo (“Samboo”), the Associate Dean, dated February 28, 2017, which state as follows: Since October 2013 you have engaged in a course of conduct directed at management which has been harassing, insolent and insubordinate. Managers past and present have attempted to address this challenging behavior on a good faith basis without discipline. However, your conduct and communication, especially with your manager, has not improved. In fact, your communication with me in December 2016 and January 2017 has been particularly vexatious. You sent these communications despite hearing me testify in a recent arbitration hearing that I found your manner of communication to be harassing. The College provided you an opportunity on February 7, 2017, to explain your recent behavior but the rationale you provided was dismissive and only deepened my concerns. Your explanations for making some complaints were flawed and reveal your actions as immature and abusive. As you know, you have two significant disciplinary suspensions on record. In levying these sanctions, the College was trying to impress upon you the importance of your obligations as an employee and that disagreeing with management is insufficient justification for poor behavior. It is unfortunate that these sanctions have not had the desired impact. The College has reviewed your employment history in conjunction with your recent behaviour and concluded the employment relationship has dissolved to the point of being untenable and that it is unlikely that it can be restored. Consequently, your employment is being terminated. 4 Dr. van Woudenberg’s prior disciplinary record 12. At the time of termination, Dr. van Woudenberg had two 5-day suspensions on his record but they were both grieved. On March 12, 2019, the majority of the Leighton Panel, Sheridan College v. OPSEU (van Woudenberg) unreported decision, issued a final decision. The Leighton Panel allowed one grievance, completely removing a 5-day suspension given May 4, 2015, for failing to communicate with the College between August 6 and August 8, 2014 and reduced the May 15, 2015, grievance, failure to attend at a discipline meeting, to a 3-day suspension. Therefore, for the purposes of this award the only disciplinary record is the 3-day suspension. 13. This is no evidence before me of any other discipline, or non-disciplinary caution, for any form of harassment alleged to have been inflicted, by Dr. van Woudenberg, on any member of the supervisory staff or his colleagues. The Longitudinal Allegations 14. In this next section of the decision, I will review the longitudinal aspect of the evidence in this case. I note that Associate Dean Samboo was the Grievor’s only supervisor to testify in this case. 15. The College asserts that Dr. van Woudenberg, since his hiring, has engaged in oppositional behavior which undermined his supervisors’ authority and thorough his interactions and the use of the grievance procedures and other workplace processes he has harassed various supervisors including Associate Dean Samboo. 16. I have no evidence of any allegation raised by the College concerning the Grievor’s inappropriate use of College workplace processes including the grievance procedure until the evidence tendered by Associate Dean Samboo before the Leighton Panel and the Grievor’s failure to provide particulars of three grievances filed on July 4, 2016. This allegation and other longitudinal allegations are raised in the February 28, 2017, termination letter. 17. There is no doubt that Dr. van Woudenberg had conflicts with L. Easton over workload management; Sheikh Azaad the individual responsible for the College’s disability management procedures; Paul Seeley, a subordinate of Ms. Azaad; Ryan Piper and Stephanie Samboo over several issues including his decision to not attend a meeting, which netted him a three-day suspension. 18. Dr. van Woudenberg has filed complaints against Mary Preece, the current President of the College; Jeff Zabudsky, the past president of the College; Hasan Malik (former Dean); and Cathi Berge, the former VP of Human Resources. 19. The College asserts that Dr. van Woudenberg, throughout his tenure, has been difficult and oppositional and has filed, and continued to file, until his termination, harassment allegations which have no merit, for the sole purpose of disrupting labour relations at the College. 5 20. The conflict with Lee Easton is an example of Dr. van Woudenberg’s behaviour. The College asserts that the Grievor raised a 2013 SWF complaint in a disrespectful manner including filing harassment grievances aimed at the interactions between the Grievor and Lee Easton. I note the College did not caution the Grievor for his alleged disrespectful conduct or for his filing of harassment grievances which were later dismissed. 21. The College relies on testimony adduced before the Leighton panel about the Grievor’s daily e- mails sent to Associate Dean Samboo in March of 2015 which left her feeling harassed. 22. Prior to the matters before me, Dr. van Woudenberg was not cautioned or disciplined for how he interacted with supervisors or other staff. 23. Further, the College never argued, before the Leighton Panel, that the filing of the harassment grievances by Dr. van Woudenberg against various members of the college community were harassing in nature or that those grievances were “frivolous”, “vexatious”, “insolent” or “abusive”. 24. It should be noted that Dr. van Woudenberg has filed many grievances since December 10, 2013, alleging violations of his human rights and harassment, against a plethora of College supervisory staff, prior to the matters I am seized with. Those grievances have all been dismissed. 25. The brief history I have recounted above does not do justice to the level and type of difficult interactions between the Grievor and other members of the College, as evidenced by the College’s book of documents. Although, the College had many instances in which to caution the Grievor for his alleged inappropriate behavior, it did not. Rather, the College disciplined the Grievor for his refusal to attend a discipline meeting which was to be held on April 28, 2015, and for failing to communicate with the College between August 6 and September 8, 2014. 26. The case before me is about the termination of an employee. The Employer wishes to reach back in time to adduce evidence of the Grievor’s previous alleged inappropriate behaviour to justify the Colleges’ decision to terminate his employment. 27. I find the College, prior to the filing by Dr. van Woudenberg of the July 4, 2016 grievances, tolerated the way the Dr. van Woudenberg interacted with members of Management. Further, I find that the time for the College to have raised issues about the inappropriateness of any of the grievances that the Union filed, on behalf of Dr. van Woudenberg, which the parties argued before the Leighton panel, was before the Leighton panel and not before me. 28. Dr. Van Woudenberg, since his hire date, has been, according to the College, treating several staff and supervisors in an oppositional, difficult, and unreasonable manner, yet the College never investigated his conduct. Considering the longitudinal nature of the 6 Colleges allegations I am surprised by their failure to investigate the various issues relating to the Grievor’s conduct. 29. I accept the Union’s assertion and find that any evidence that could have formed part of the discipline before the Leighton panel and was not put forth at that time, cannot form part of the reasons for termination before me. (See: Aerocide Dispensers Ltd. (1965), 15 L.A.C 416 (Laskin); Rubber Technology Group (2012), 216 L.A.C (4th) 411 (Stewart); Essar Steel Algoma Inc. (2008), 177 L.A.C (4th ) 183 (Stout)). The Relationship between Associate Dean Samboo and Dr. van Woudenberg prior to December 2016. 30. The College asserts that Associate Dean Samboo was harassed by the Grievor during his return-to-work process. From February 2015 to the Grievor’s acceptance, as a sign of good faith, of a Tutor’s position in the Learning Centre in April 2015. 31. Associate Dean Samboo in her testimony reviews a group of e mails that had already been proffered before the Leighton panel. The College relies on this testimony and asks me to conclude that Dr. van Woudenberg has harassed Associate Dean Samboo. 32. Associate Dean Samboo was particularly upset by the timing of Dr. van Woudenberg’s e- mails. She would open her computer each morning and waiting for her was another missive from the Grievor. In short, the group of e mails are complaints about the way the College was handling the Grievor’s return to work. 33. Associate Dean Samboo never complained to the Grievor that she felt harassed by his conduct towards her. I note that most of the e mails from the Grievor to Associate Dean Samboo were also cc’d to others in the College. The College never spoke with the Grievor about his interactions with Associate Dean Samboo. 34. I agree with the College that the Grievor was excessive in both the type of requests and responses and the timing of his requests and responses to Associate Dean Samboo. He often cc’d the President of the College which generated further stress on Associate Dean Samboo. 35. His interactions were affecting Dean Samboo’s health, (in 2016 she saw a naturopath), yet even though Associate Dean Samboo spoke with Associate Dean, Haas Malik and Vice President, Ryan Piper about her feelings of harassment at the hand of Dr. van Woudenberg, no one issued a caution to the Grievor about how he was dealing with the Associate Dean. This situation cried out for the College’s direct intervention about the way the Grievor was interacting with his Associate Dean. Prior to terminating the Grievor, he had never been cautioned, by the College, about his behaviour towards his colleagues and supervisors and his alleged harassing behaviour towards Associate Dean Samboo. 7 36. For her part, Associate Dean Samboo thought it would be taken as sign of weakness by the other professors in her department if she were to complain about the Grievor’s approach in interacting with her. Insight into Dr. van Woudenberg’s meritless allegations. 37. Prior to filing the July 4, 2016 harassment grievances, which I dismissed on September 2, 2020, Dr. van Woudenberg had filed a succession of harassment grievances against the College and some of the College’s supervisory staff. All of those grievances have been found to be without merit. While Dr. van Woudenberg’s filing of harassment grievances against the College and certain supervisors was disruptive and oppositional, the College never investigated, cautioned, or disciplined Dr. van Woudenberg for those actions. However, the arbitral findings in those cases are helpful to understanding the Grievor’s intentions. 38. An example of the Grievor’s approach to using the grievance procedure to push to decision grievances that have no merit can be found at paragraph 102 to 104 in the case Sheridan College v OPSEU (van Woudenberg), March 12, 2019, (unreported). A majority of the Leighton panel said the following: Dr. van Woudenberg testified in cross examination that before filing the grievance he did not ask Dean Samboo if the claim had been approved. Nor did he ask when the Dean approved it. And he did not seek her help to track the expense claim. He did not ask anyone in Finance about the claim either. It is hard to conclude that he was concerned about getting the reimbursement. The allegation of reprisal is serious. The Union submits that the College was deliberately acting to thwart the Grievor’s rights because he grieved that various senior administrators and employees of the College (sic) had harassed and discriminated against him. Dean Samboo was not named in the grievance dated February 20, 2015, but she was the only senior administrator involved with approving the May expense claim. The evidence is clear that Dean Samboo processed the May claim and forwarded it to Finance in a timely manner. She approved it within a few days on June 1, and her assistant forwarded it to Finance on June 2. The Dean had no knowledge that the Grievor had not received the cheque until she met with him and the Union, at a stage two (sic) meeting for the June 29 grievance, on October 1. At this point she testified that she directed someone to look for the cheque and shortly after it was discovered that it had been misdirected to a student assignment box with the Grievor's name on it. There is nothing in the evidence to support the Union’s allegation that Dean Samboo created a work climate that was hostile to the Grievor. The Union said that she should have looked for the missing cheque earlier, but she did not learn that it was missing until October 1, at the grievance 8 meeting. She did nothing that can be interpreted as reprisal. And there was no evidence that anyone else named in the Grievor's February 20, 2015, grievance had anything to do with payment for this claim. While we agree with Union counsel that small acts of aggression may amount to harassment, there is no evidence here to support an act of aggression against the Grievor by anyone in the College. 39. A review of the above noted paragraphs from Sheridan College v OPSEU (van Woudenberg), March 12, 2019, (unreported) reveals that the factual nexus to making a finding of reprisal was missing. The evidence demonstrates that the College has an administrative process to processing a cheque which was properly followed. The Dean only found out about the errant cheque on October 1, 2015, at a step two grievance meeting, almost eight months after the grievance was filed. Had the Grievor simply told the College administration that he had not received the cheque, prior to filing the June 29th grievance, he would have received his money. The problem for Dr. van Woudenberg is that having received the money, he would no longer have facts upon which to base his reprisal grievance. The issue was never about the misplaced cheque, it was about being oppositional and creating turmoil. The remaining grounds for Termination 40. I now turn to incidents that make up the bulk of the College’s reasons for terminating the Grievor that do not include the incidents that should have been placed before Arbitrator Leighton or could have been cause for discipline. 41. The College proffered four witnesses. Associate Dean Samboo, Labour Relations Officer Gurleen Lamsar, Dr. Burgess and Dr. Green. 42. The Union proffered no witnesses. 43. The evidence of Dr. Burgess and Dr. Green relates to Dr. van Woudenberg’s return to work and his mental state around staying in his position at the College and its effect on his personal life. This evidence, when reviewed, in context does not lead me to a conclusion that as of the start of the hearing before me, Dr. van Woudenberg wanted to leave his position at the College or that Dr. van Woudenberg was hampering his return to work. 44. It is the evidence proffered by Associate Dean Samboo which supports the decision to terminate Dr. van Woudenberg. Dr. van Woudenberg did not testify in these proceedings; consequently, I accept without reservation the evidence of Associate Dean Samboo. The evidence is comprised of the examination in chief, the cross examination and the reply examination. Dr. van Woudenberg and his dealings with Associate Dean Samboo and the College from December 2016 until his termination. 9 45. The College, in support of their allegation that between December 2016 and his termination on February 28, 2017, Dr. Woudenberg’s conduct was harassing, relies on three sets of interactions between the Grievor and the Associate Dean. 46. Dr. van Woudenberg raised with Associate Dean Samboo the issue of pay differential. The issue relates to salaries that were disclosed by the “Sunshine List.” Dr. van Woudenberg took issue that there were professors at Sheridan College who were making above the rate stipulated in the collective agreement. Eventually it became clear that the professors’ Dr. van Woudenberg was complaining about were performing administrative and supervisor duties which were outside the purview of the collective agreement. 47. Associate Dean Samboo was upset about the e mail exchange which she felt was harassing. One of the reasons for her view, is that she believed he knew or out to have known that the allegations about disparate pay treatment involved Professors who were, at the time in question, part of the administration and therefore not covered by the collective agreement. 48. The Grievor raised a reprisal allegation about being called at home after hours by a member of the College Staff. The Grievor believes that these after hour phone calls are in retaliation for events that happen at the arbitration hearing before the Leighton panel. 49. Associate Dean Samboo had been attempting to get particulars of the allegation since January 9, 2017. The Grievor finally revealed the particulars of the after-hour phone calls at the February 7, 2017, meeting. It turns out that the phone calls were from a member of the Sheridan College research department, who was attempting to obtain Dr. van Woudenberg’s input for a grant proposal. Dr. van Woudenberg knew all along that the phone calls were in aid of his grant proposal; nevertheless, he advanced the claim as an allegation, for the sole reason of creating a disturbance and being disruptive. Because of the meritless allegation, the Associate Dean had to spend her valuable time responding to it. 50. The third allegation relates to interactions with students. Associate Dean Samboo received complaints about Dr. van Woudenberg’s classroom management. Three students complained that the Grievor had lost control of the classroom and one student complained that because of Dr. van Woudenberg’s inattention, she was being harassed by another student in that class. Further, he was not using the approved Sheridan College software (SLATE) to upload class assignments and course expectations. Therefore, the students could not easily access their assignments or communicate with their Professor. 51. Associate Dean Samboo met with the Grievor on December 15, 2017. She did not raise the substance of the students’ complaints, but rather attempted to get Dr. van Woudenberg to post the material using the approved platform. She asked another professor to help Dr. van Woudenberg with the technology. 10 52. Instead of being appreciative of Associate Dean Samboo’s help, Dr. van Woudenberg acted in a derisive manner to her suggestions about using the approved software system and the technological help. His behavior was insolent and disrespectful. 53. I do not have any explanation, from Dr. van Woudenberg, about the allegations he raised with Associate Dean Samboo about the phone calls at home; the disparate pay; and the interaction about class management. I am left with no understanding, from the Grievor’s perspective, about why he decided to proceed in an obnoxious, insolent, and purposeful manner in his dealings with the Associate Dean Samboo and the College. The July 4, 2016 grievances and Article 4. 54. The three grievances filed on July 4, 2016, allege various forms of harassment against most of the supervisory staff who have, at one time or another, interacted with the Grievor. In each of the grievances, the Grievor alleges repeated unprofessional and arbitrary conduct by various members of the College’s supervisory staff, resulting in a hostile and toxic work environment that undermines work, professional development, and the performance of assigned duties. 55. The parties met to discuss the three grievances on September 7, 2016. The Grievor refused to provide any particulars about the ongoing harassment campaign that he alleges the College had undertaken against him. 56. In its September 21, 2016 grievance response, the College advised the Grievor that his failure to particularize his harassment allegations showed disingenuous intent. Further the College took the position that the Grievor’s harassment allegations were “frivolous” as contemplated by Article 4.02 of the collective agreement, which stipulates that filing a frivolous Article 4 complaint is grounds for discipline. 57. On consent of the Parties, on September 10, 2019, I directed the Union and the Grievor to provide the College with, on or before October 1, 2019, particulars for the three July 4, 2016, grievances filed by the Union on behalf of the Grievor. 58. On October 2, 2019, the next hearing date, I was asked by the College to dismiss the July 4, 2016, grievances as the Union and the Grievor failed to produce the particulars. It was clear to me that the Grievor was not prepared to work with the Union so that particulars could be provided allowing for the smooth operation of the hearing. In my order of October 2, 2019, I said the following at paragraph 6: Having heard the submissions of the parties, I am extending the time lines for particulars and document production until October 31, 2019. Because the Grievor stated on the record that he is prepared to disclose the particulars necessary to proceed with the grievances dated July 4, 2016, referred to as the harassment grievances; and because the Grievor has stated on the record that he will comply with the totality of my 11 September 10, 2019 consent order I am directing that the particulars shall be gathered in the following way: I. Counsel for OPSEU shall, on or before October 9, 2019, provide to the Grievor a list of questions necessary to develop the requested particulars. II. The Grievor shall on or before October 18, 2019 provide answers to the questions proffered by OPSEU’s Counsel. III. The Grievor shall produce to the Union (a) all records that relate to any search or other efforts made by the Grievor to secure alternative employment and (b) all records that show any monies the Grievor has earned subsequent to his discharge, including but not limited to the Grievor’s tax filings for the 2017 and 2018 tax years. IV. On or before October 31, 2019 Counsel for the Union will file his particulars and all financial documents and records noted in the paragraphs above. 59. My direction above is unusual in that I directed the Union and the Grievor to work together to provide particulars for the hearing. Even though the Grievor assured me that he would provide particulars and abide by my direction, prior to the next hearing date, the particulars were never filed. I dismissed the grievances on September 2, 2020. At paragraph 10 through 12 I said the following: The harassment grievances On the first day of hearing these motions, the Grievor was still not willing to particularize the harassment grievances. I believe that the Grievor has a separate agenda from the Union on this point. In light of the Grievor’s refusal to provide particulars, I believe that the Grievor wants these grievances dismissed so that he can continue his human rights complaint at the Human Rights Tribunal without Union involvement. I find that the Grievor is unwilling to produce any particulars to the College which would allow the College to, first, understand the basis of the grievances, and second, to allow the College the ability to mount a defence. In light of the Grievor’s refusal to particularize his grievances and his failure to cooperate with his Union, the harassment grievances are dismissed. In dismissing these grievances, I make no comment on the matters that have been adjourned by the HRTO. 12 60. The failure to provide pleadings in respect of his allegations of harassment and poisoned workplace, is particularly problematic. This collective agreement has a unique provision as it relates to bullying and psychological harassment. The Employer relied on Article 4.02 A 4 and 4.02 A8 which is reproduced below: Article 4.02 A 4 The College shall make reasonable provisions to ensure that employees are free from bullying/psychological harassment as defined within this article. The College and the Local Union shall cooperate to the fullest extent possible to ensure the work environment is free from bullying/psychological harassment. Article 4.02 A 8 Bullying/psychological harassment will be treated as a disciplinary offence that could lead to dismissal. Frivolous allegations of bullying/psychological harassment will be treated as a disciplinary offence that could lead to dismissal. 61. Dr. van Woudenberg’s decision not to provide particulars to support his allegations of harassment and poisoned workplace is the type of situation article 4.02 A 8 was designed to address. Dr. van Woudenberg was asked to provide particulars by the College on at least two occasions and he refused. Subsequently I directed him to provide particulars which were not forthcoming. Then I directed him to answer a list of questions, which Union Counsel would provide, as an aid to developing the particulars that would form part of this hearing. The Grievor refused to answer the questions provided by Counsel. I dismissed the July 4, 2016, grievances on September 2, 2020. 62. Although the College requested that I dismiss the July 4, 2016, grievances based on an Article 4 analysis, I declined to do so as I did not have any evidence regarding the Grievor’s reasons for declining to provide the particulars. I expected that when the Grievor testified and explained his reasons for not providing particulars, I would be in a better position to decide the Article 4 issue. 63. Dr. van Woudenberg never testified. I do not have any direct evidence about his reasons for refusing to provide particulars for the July 4, 2016 grievances. The Grievor’s conduct at the hearing. 64. Between my Order to produce particulars dated October 2, 2019, and my decision dated September 2, 2020, dismissing the July 4, 2016, grievances, there were 8 hearing dates scheduled. The dates of January 28, 2020, February 13, 2020, and February 19, 2020 were adjourned so that the Grievor could retain Counsel to advance his third-party standing motion. 13 65. The next group of hearing dates dealt with the allegation that the Grievor digitally recorded the proceedings against my specific direction not to, and the Grievor’s request for individual standing which, having adjourned three scheduled arbitration dates, he withdrew. 66. I adjourned November 2, 2020, which was the next scheduled hearing day after I issued my September 2, 2020, decision, which dismissed the July 4, 2016, harassment and human rights grievances, because the Grievor, who failed to advise the Union, did not attend. Dr. van Woudenberg never explained why he did not attend at the hearing. In my November 2, 2020, decision about the adjournment I said the following at paragraphs 6 though 8 inclusive: I reject the Union’s substantive submissions. The Union should have been prepared to deal with the procedural matters today and they were not. The Union had notice of the issues raised prior to today’s hearing. Further and, in any event, the Union has carriage of this grievance and is responsible to ensure that the Grievor attends at the hearing. The Grievor did not attend today’s hearing. He phoned me directly, which I find is an unacceptable practice, to tell me that he was not going to attend. He should have made his views known to Union Counsel and he did not. I direct the Grievor to attend at the next hearing date (December 7, 2020) via a video platform acceptable to his Union. Should the Grievor fail to attend the next day of hearing, this matter will be terminated, subject to the Grievor showing cause, acceptable to me, of the reasons for his failure to attend at the December 7, 2020 hearing. 67. The Grievor attended the December 7, 2020 hearing which continued without incident. At the subsequent hearing date of December 22, 2020, the Union requested that future Zoom hearing dates proceed in an open format. This request was granted, and the remaining hearing dates were open to the public and available to anyone who wanted to watch the proceedings. The hearing dates proceeded as scheduled without interruption. The closing arguments were scheduled for October 5, 2021, October 19, 2021, and October 20, 2021. 68. At the beginning of the Day on October 5, 2021, Dr. van Woudenberg was not in attendance. Once again, the Union had not been informed about his decision not to attend. At 11:30 ET the Grievor finally appeared and asked for an adjournment for the next scheduled days of hearing October 19 and October 20, 2021. I dismissed this request and issued an oral ruling which I have reduced to writing below: 14 The Union on behalf of the Grievor requested that the next hearing dates (October 19 and 20) be rescheduled. There were no reasons expressed for this request. I asked the Union to confer with the Grievor about his reasons for the request. When the parties returned, to the hearing room, the Union confirmed that the Grievor’s request was still a live one, however no reasons were offered for the request. These dates were set on November 4, 2020, and were known to the Grievor since that time. Absent any reasons for the request, I am denying the request and this matter will continue October 19 and October 20 via Zoom @ 11:00 a.m. EST. 69. Dr. van Woudenberg attended at the hearing on October 19, 2021 for closing argument. October 20, 2021 was cancelled as we had completed the closing arguments on October 19, 2021. 70. Throughout this hearing the Grievor has attempted to take liberties with the process. He has shown little respect for these proceedings. He has communicated directly with me even though he was directed not to. He was directed to raise issues through his Union as they have carriage of the case and instead he continued to contact me. He would not tell the Union about his nonattendance. He has shown contempt for Union Counsel who has worked diligently in attempting to save his job. Decision 71. Dr. van Woudenberg did not appear as a witness in this proceeding. I have no direct evidence before me about why he has acted the way he has in respect of his interactions with Associate Dean Samboo, other members of the supervisory staff, the Union and the hearing process. Simply put, the Employer raised a series of facts, which on their face raise issues which could lead to discipline, yet he has not rebutted these allegations 72. The facts raise issues regarding several conflicts: between a member of the Academic Bargaining Unit and the College, as well as between the member of the Academic Bargaining Unit and the Union. I find that Dr. van Woudenberg’s dealings with Counsel for the Union, the ongoing arbitration process and the College were disrespectful. Further I find that his dealings with Associate Dean Samboo have been vexatious, obnoxious, and insolent. His use of the grievance procedure is frivolous and vexatious. 73. The case of Sheridan College v. Ontario Public Service Employees Union, Local 244 (Fergenbaum) (2020), unreported decision (Stephens) sets out an analysis of Article 4 which I adopt. Arbitrator Stephens at paragraphs 119 and 120 states the following: I cannot escape the conclusion that the Grievor’s actions, viewed as a whole, constituted a serious abuse of legal protections 15 intended to promote justice in the workplace. Obviously, this is not a finding one should make lightly, given that employees should not hold back from pursuing such complaints when there are reasonable grounds. However, in this instance I cannot accept that the Grievor had reasonable grounds to believe that he was the victim of harassment, bullying, sexual harassment or discrimination. Rather, the evidence in this case supports the conclusion that the Grievor deliberately misused the concepts of harassment and discrimination as part of a process of attempting to undermine Cameron and of attacking anyone else who he viewed as opposed to that goal. Harassment and discrimination are legal concepts that can trigger important legal protections intended to define and defend the human rights of those subjected to systemic and direct attacks on their dignity and entitlement to equal treatment. It is with good reason that Article 4.02A of the collective agreement and the Employer policy both stipulate that it is a serious offence for an employee to make bad faith allegations of harassment and discrimination or, as Ms. Murray put it, to “weaponize” the principles of human rights. It is difficult to overstate the seriousness of the Grievor’s attempts to misuse these important legal concepts in the service of his attacks on his colleagues. The Grievor’s abuse of the mechanisms intended to protect employees from real harm for the purpose of harming his manager and others, and his continued defence of those actions, undermine the union’s submissions that he would be capable of establishing and maintaining appropriate working relationships with managers and peers in the future. 74. Dr. van Woudenberg never particularized the harassment grievances he filed on July 4, 2016. The Employer, on at least two occasions, as well as the arbitrator by direction, specifically requested that he particularize the nature of the poison workplace and harassment allegations. For an almost four -year period he held these allegations, like a guillotine, over the heads of a large number of the College’s supervisory staff. At the same time, he continued to make other spurious allegations. 75. Dr. van Woudenberg weaponized the grievance process. His continued allegations of poison workplace, despite never detailing particulars, combined with his refusal, when asked to meet with the Employer, to attempt mediation, is further evidence that he was using the grievance procedure as a weapon and not for the purposes intended. I find that the Grievor did not want to resolve matters; rather, he wanted to create conflict undermining the parties labour relations. 76. Having reviewed the evidence concerning Dr. van Woudenberg’s interactions with Associate Dean Samboo since 2016 and his delinquent, frivolous and vexatious approach 16 to the July 4, 2016 grievances, I find that the Grievor has engaged in misconduct deserving of discipline. The Grievor demonstrated a total disregard for managerial authority, his Union and the arbitration process. I find that, since 2016, he raised spurious allegations of harassment. Further, I find that the Grievor, by failing to particularize the July 4, 2016 grievances, has breached Article 4.02 A 8 77. Having found that the Grievor’s actions are worthy of discipline, I must now review the mitigating factors which could lead me to exercising my discretion to substitute the penalty imposed by the College for a different level of discipline. 78. The Grievor did not testify. I have no idea why Dr. van Woudenberg conducted himself in the manner he did. I note that the Union, on Dr. van Woudenberg’s behalf, has filed many meritless harassment grievances against various members of the College’s supervisory staff. In my review of the historical relationship between the College and Dr. van Woudenberg I note that the parties are often in conflict. 79. In trying to understand Dr. van Woudenberg’s intention I reviewed his conduct at the hearing. Dr. van Woudenberg lacked respect for the hearing process and showed contempt for the very people who were trying to save his job. His approach to this hearing is similar to how he approached his interactions with the College. I find that Dr. van Woudenberg in his interactions with the College was an oppositional force who did not respect authority and was very difficult to reason with. 80. I have no evidence before me which would lead me to change the level of discipline imposed by the College in this case. Although the Grievor’s disciplinary record is a three-day suspension, and the next step on the disciplinary ladder is usually a five-day suspension, I have no evidence that would lead me to conclude that the Grievor, as a consequence of imposing a lessor form of discipline, would change his behavior. The grievor remains unrepentant. The grievor has shown contempt for his supervisors, his Union and the grievance and arbitration procedure. His actions show that he continues to be a difficult oppositional force within the College. I do not believe the grievor is capable of modifying his behavior. Absent an explanation from the grievor, I find that his actions are deserving of the discipline imposed by the College. 81. After considering all of the evidence, the submissions of the parties, and the jurisprudence, I conclude that there are insufficient grounds upon which to exercise my discretion to vary the penalty of termination; therefore, the grievance is dismissed. Dated in Toronto this 2nd Day of May, 2022. ------------------ Jules B. Bloch Arbitrator.