HomeMy WebLinkAboutHipsz 22-12-13IN THE MATTER OF A GRIEVANCE under the Labour Relations Act, 1995 and
pursuant to a collective agreement
BETWEEN:
SHERIDAN COLLEGE
(the “Employer”)
-AND-
OPSEU/SEFPO, LOCAL 245
(the “Union”)
Tom Hipsz Termination Grievance
BEFORE: Gail Misra, Arbitrator
Appearing for the Employer:
Tim Liznick, Counsel
Quinn Brown, Counsel
Rose Sharifi, General Counsel, Sheridan College
Wanda Shreve, Senior Legal Counsel
Jason Connolly, Director, Employee Relations
Natalia Raguz, H.R. Business Partner
Appearing for the Union:
Allison Vanek, Grievance Officer
Nancy Heath, President, Local 245
Ruth McLelland, First Vice President, Local 245
Tom Hipsz, Grievor
Mireille Coulourides, Support Person to the Grievor
Hearings held by videoconference on March 15, September 23, October 21 and November 22,
2022
Decision issued: December 13, 2022
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DECISION
I. I have been appointed pursuant to the collective agreement between the parties to hear a
grievance filed by the Union on April 25, 2021 on behalf of its member, Tom Hipsz. The
grievance asserts that Mr. Hipsz was wrongfully terminated from employment by Sheridan
College (the “College” or the “Employer”) without just cause, and in contravention of the
Ontario Human Rights Code and the collective agreement. The remedy sought is
reinstatement, and all lost wages and benefits.
2. In the course of the hearing the College called Natalia Raguz, Human Resources Business
Partner as a witness, and the Union called Mr. Hipsz as its witness.
3. In reaching a decision in this case I have considered the oral evidence, the document and
video exhibits, the submissions of the parties, and the case law tendered. For reasons that will
be outlined later, I uphold the termination and dismiss this grievance.
THE FACTS
4. The grievor began working at the College on August 5, 2008 as a Recreation/Fitness
Coordinator in Student Affairs-Athletics. It appears that at various points he was also a
sessional instructor. On October 7, 2013 he became a full time Student-Athlete Advisor in
Student Affairs-Athletics, reporting to Jim Flack, the Director of Athletics and Recreation. His
responsibilities included advising varsity athletes and assisting them with any issues outside
their sport. He was a resource for coaches for recruitment, and assisted by speaking to student
athletes and their parents. He was also involved from the time after an athlete’s recruitment
up to their graduation, and sometimes after graduation as well. Mr. Hipsz assisted student
athletes in liaising with the recruitment office and their faculty, and educating them on the
College’s policies, procedures, and appeals. Within Library services, he helped design a course
and taught it with the library staff to help athletes to succeed academically.
5. It was clear through his evidence that the grievor loved his work and had been dedicated to
helping students find their way and to succeed at the College. The grievor has a bi-racial
daughter to whom he referred many times in his evidence, who he is protective of, and it was
apparent he loves very much.
6. Ms. Raguz has been working full time with the College in Human Resources since 2007. For
the last five years she had been in her current position of Human Resources Business Partner.
One of her areas of assignment is the Athletics department, to which she provides human
resources and labour relations consulting. She reports to Deborah Metrakos, Director,
Employment Relations & Talent Acquisition. In the course of her work, Ms. Raguz has been
involved in two instances relating to Mr. Hipsz’ employment in the Athletics department.
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7. On September 17, 2020 the grievor received an Expectations Memo from his manager, Mr.
Flack. Such memoranda are not disciplinary in nature but are a method of providing an
employee with important information about the Employer’s concern regarding a particular
issue. In this instance, the goal of the memo was to ensure that Mr. Hipsz understood the
guiding principles of the College’s Code for Professionalism and Civility, and the College’s
expectations of him regarding workplace behaviour and communications, both within and
outside of the College. The relevant portion of the Memo stated as follows:
In your employment and position as Student-Athlete Advisor, you are a trusted representative
of Sheridan and Sheridan Athletics. As a Sheridan employee you act as the public face of the
College and your conduct – both inside and outside of Sheridan – can impact the reputation and
success of the College and Sheridan Athletics and influence the workplace and learning
environment.
Your conduct both within and outside the College, including social media activity, must be
consistent with expectations of Sheridan community members, as reflected in the Code for
Professionalism and Civility. It is important to exercise good judgement and ensure that
Sheridan’s interests are not negatively impacted by your behaviour.
8. There is no dispute about what led to the September 2020 Expectations Memo. In and
around July 23, 2020 the Employer saw a Tweet asking if Tom Hipsz was an employee of
Sheridan College, as the sender noted that Mr. Hipsz was posting crude pictures of United
States Representative, Alexandria Ocasio-Cortez (commonly known as “AOC”), and was calling
her a “dumb ho”. The person noted that “the tweets may reflect quite negatively on your
university and your athletics program”. The person had included some of the grievor’s
retweets and comment threads.
9. The College identified a sample of the grievor’s tweets and retweets that had included the
following:
- Ann Coulter, an American conservative media pundit, making fun of Dr. Anthony Fauci
in respect of his COVID-19 predictions;
- Laura Ingraham, an American conservative television host, regarding how
Hydroxychloroquine could save 100,000 lives if used for COVID-19;
- Canadiancraftylady, regarding new masks she had designed that said “F--- You
Trudeau”; the grievor had indicated that he found them “Beautiful” and that he needed
one;
- Christine Geniole, retweeting from QANON, about climate activists, to which the grievor
had posted an image of a person using a powerful blow torch;
- In response to a tweet from Federal Minister Catherine McKenna supporting Ms.
Ocasio-Cortez, the grievor tweeted in part “funny how one dimwit chooses another”
with a picture of Ms. Ocasio-Cortez in shorts or underwear with her legs splayed;
- Negative comments and photos of Melinda Gates and Michelle Obama;
- In response to a tweet by Jake Tapper, a CNN journalist, which read “When you call a
woman with whom you disagree “a f-----g bitch”, as GOP Rep@TedYoho did with @AOC,
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it’s not “passion” talking.. It’s misogyny, it’s bigotry. Truly disgusting”, the grievor
tweeted the same photo outlined earlier, and tweeted “Is dumb Ho better?”
10. In the course of investigating the complaint, the College had found that the grievor was a
prolific Twitter contributor, who identified himself as an educator who worked at a college,
thus not specifically identifying Sheridan College as his employer. However, he had also
mentioned the Sheridan bus routes and Brampton in other posts, so it appeared to Sheridan
that the person who had sent the complaining tweet to the College had been able to identify
where the grievor worked.
11. Ms. Raguz had been involved with this issue as she had responsibility to support the
Student Affairs area in human resource-related matters, and she had assisted Mr. Flack with
the social media expectations letter given to Mr. Hipsz on September 17, 2020. However, she
had not met him at that time.
12. The grievor testified that after receiving the Expectations Memo, he had deleted his Twitter
account. In cross examination he agreed that as a result of that Memo he was aware that the
College valued its public reputation and image. However, he did not see it as part of a course of
progressive discipline because the Expectations Memo was not considered disciplinary in
nature. He agreed in cross examination that he understood that Sheridan had a reputational
concern about being associated with the views he had demonstrated in his social media
postings, but he nonetheless reiterated that the Expectations Memo had not been disciplinary
in nature.
13. On August 7, 2020 all employees of the College were sent an email by Dr. Jane Ngobia, Vice
President, Inclusive Communities, and Ryan Piper, Vice President, Human Resources, advising
that Sheridan would be requiring them to participate in new equity, diversity and inclusion
(“EDI”) training. The new training was because the College wanted to acknowledge and address
systemic racism in their community, and its impacts on students and employees who self-
identify as Black, Indigenous and People of Colour. Advancing EDI was noted as a key pillar of
the College’s 2024 Strategic Plan. The program was to be offered as an online learning course,
in three modules; was to be launched on August 24, 2020; and was to be completed within 30
days. If employees had questions, they were advised to review the Frequently Asked Questions
posted on Sheridan’s Central site, or to speak to their manager.
14. The three modules were “Human Rights 101”, “Unconscious Bias”, and “Anti-Oppression &
Anti-Racism”. Each module comprised of a slide deck with a voice over, as well as a transcript.
15. There is no dispute that the grievor completed the three modules. Mr. Hipsz recalled that
around October 2, 2020 he sent a text message to his manager, Mr. Flack, raising his concerns
about the EDI training. According to the grievor, while he was taking the training modules, he
felt that some of the content was not accurate or that it was not aligned with the Ontario
Human Rights Code. In particular he objected to a chart that in his view suggested that if one
was White and Catholic, one was privileged. He testified that he had been to school for one
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year in Kentucky and that he had seen real poverty there for all races. Ultimately, Mr. Hipsz
testified that the slides that he had found most objectionable were the ones he later sent to
Rebel News (“RN”) in February 2021.
16. Those slides contained content such as the following from the “Anti-Oppression & Anti-
Racism” training module:
- A slide titled “More effects of White Supremacy”, which had a link to a video called
“what dark skinned people will never tell you”.
- A slide titled “Why Whiteness?” with text that says “White privilege is a result of
colonialism and White supremacy”, and goes on to explain what White supremacy
means.
- A slide titled “Practicing Anti-Oppression”, with some suggestions for how a person may
do that, such as “Believe those who share experiences of oppression”, “Invest in
learning more about their experience and changing the systems of oppression that have
contributed to their oppression”, etc.
- A slide titled “Where do I have Privilege or Marginality?” which had a chart that listed
various types of oppression, like sexism, racism, heterosexism, classism, etc. and then
indicated who were in the “Dominant/Privileged Group”, the “Oppressed/Marginalized
Groups” and the “Social Identity Category” for each type of oppression. For the
category of “Racism”, “White People” were listed as the “Dominant/Privileged Group”,
“Non-White, Black, Asian, South Asian, Indigenous People” were listed as the
“Oppressed/Marginalized Groups”, and the “Social Identity Category” was “Race”.
17. In cross examination the grievor was shown a screen shot of his October 2, 2020 text sent
to Mr. Flack about this EDI training chart. Along with the screen shot of the “Where do I have
Privilege or Marginality”, was the grievor’s message caption “Rural Kentucky prime example”.
As that was the extent of the message, and it was not apparent that there had been a response
from Mr. Flack, it was put to Mr. Hipsz that he had made no request for action. The grievor
conceded that he had not asked Mr. Flack to do anything, but to his mind, he was letting his
manager know that he had concerns about the training. In Mr. Hipsz’ view, it was not up to him
to tell Mr. Flack what to do. The grievor stated that he had not in fact expected Mr. Flack to be
able to do anything about the EDI training.
18. Nonetheless, according to Mr. Hipsz, in response to the text, Mr. Flack had told the grievor
that if he wanted to know how Sheridan viewed EDI, he should look at who was in the
leadership team, where 29 of the 33 positions were held by women. The grievor testified that
Mr. Flack did not suggest any avenues within the College to direct his concerns. In any event,
the grievor testified that he would not have considered going above Mr. Flack’s head as in the
past his experience of doing so had led him to be chastised.
19. One example the grievor gave was from the beginning of the pandemic. Mr. Hipsz had read
somewhere that in Italy they were using 3D printers to make personal protective equipment
(“PPE”). His recollection was that he had written to the Student Affairs team to suggest that
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Sheridan use its 3D printer equipment to do the same thing. In his words, he “was taken to the
woodshed for that”. He also recalled that three months later Sheridan did in fact use its 3D
printers to create PPE, and a number of people were publicly recognized for the work, but he
got no credit for the idea.
20. In cross examination the grievor was shown the email exchange about this issue. On March
16, 2020, in the very early days of the COVID-19 pandemic, the Dean of Students had sent an
email to all the staff in Student Affairs, indicating that the leadership team was working on how
to deal with the COVID-19 situation; was looking into how staff could work from home; that
everyone’s health and safety was of the utmost importance; they were considering how best to
support their students remotely; and that she would be in touch soon with updates.
21. The grievor responded with a “Reply All” message in which he wrote the following:
Have we offered our 3D printing equipment for making medical devices?
Replied all because of urgency
Can someone that will actually be listened to inquire?
Thank you, stay safe everyone.
22. Ms. Lucido Bezely, the Dean of Students, responded to the grievor alone by asking him to
“Please take this offline”; indicated she was not sure what he wanted them to do; asked him to
speak to Jim [Flack]; and that she would speak to Jim after she was done the meeting she was
in. The grievor responded with an email in which he explained that 3D printers were being
used to save lives; he was not trying to cause panic amongst staff, but he thought Sheridan
could creatively help the crisis. He went on to apologize if his message had caused undue
stress, as that had not been his intention.
23. The grievor’s second example was that at some point in the past it had come to his
attention that students were lining up and sleeping on the floor at the College from 4 a.m. on in
order to change courses. He had advised the Vice President Academic about it and was
admonished for doing so. He could not recall who had admonished him, but he thought it had
either been the Dean of Students, or Mr. Flack, at the behest of the Dean of Students.
24. Another EDI training initiative that the grievor found objectionable was one held in
February 2021 in Student Affairs. In that instance the staff were put into either a White caucus
or a People of Colour caucus for their discussions. While Mr. Hipsz went to the White caucus,
he testified that he didn’t like thinking that way. He recalled being told that a book by Ibram X.
Kendi would be used during the training, so he had got it. In his view, Mr. Kendi encourages
racism and active discrimination. Mr. Hipsz did not raise his concerns with the trainer or his
manager.
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25. The grievor did not raise his concerns about the EDI training with the Union either. He
testified that in his 13 years at Sheridan, he had very little contact with the Union, other than
paying union dues, assisting during a strike, and with respect to the Expectations Memo he had
received in September 2020. As well, in his view, generally unions would be in favour of this
type of training, so he didn’t think to go to speak to the Union.
26. Mr. Hipsz did not address his concerns about the EDI training with the Centre for Equality
and Inclusion at the College, as that was the office responsible for the training in the first place,
so it would, in his words, be like “asking the fox to guard the henhouse”.
27. Rather, he decided to contact Rebel News, a Canadian right-wing political and social
commentary media website. In order to contact RN, the grievor completed a contact form
online. He was not able to keep a copy of that form, so working from memory, Mr. Hipsz
thought he had written to see if they thought, as he did, that some of the College’s EDI training
was contrary to the Human Rights Code (the “Code”). He did not mention any names in the
initial communication. As some point after he had completed and submitted the form, he was
contacted by Andrew Chapados, a reporter at RN. Mr. Hipsz could not recall if he was called or
contacted by email the first time.
28. Based on the email correspondence between the grievor and Mr. Chapados, it is apparent
that on February 22, 2021 Mr. Chapados sent the grievor an email asking him to send over the
slides, and that if it was clear that the “directive/teachings are from the college and that they
are discriminating towards anyone that could be a story. The name of the institution, class, and
any other pertinent information would be helpful”. The grievor responded by email that day,
attaching five images, and advising that it was “HR training for every full-time employee of
Sheridan College”; he noted that perhaps it was for part time employees too, but he was not
sure; and most particularly, the grievor wrote as follows:
I would appreciate talking with someone before publishing, if it gets to that point. I would like
to be referred to as former faculty which is 100% accurate. I still work full-time as support staff
but have mouths to feed.
29. After this email exchange the grievor recalls that he and Mr. Chapados had a telephone
conversation in which Mr. Chapados apparently agreed that the EDI training was not aligned
with the Code. He asked the grievor when the training had seemed to start, and Mr. Hipsz told
him it coincided with the creation of a Director of Equity and Inclusion position. According to
Mr. Hipsz he did not know “the good doctor’s name” at that time, and had never mentioned Dr.
Ngobia’s name to RN by either email or on the phone call.
30. In or about late February 2021 the RN video about Sheridan’s EDI training program came to
the College’s attention. It was titled, “Why Whiteness? Leaked college diversity training claims
white people “dominant” over other races” and had been posted on February 25, 2021 by RN
reporter Andrew Chapados. The article stated that “a former staff member at Sheridan College
in Mississauga, Ontario has provided documents from the college’s “diversity training’, which is
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mandatory for all full-time employees at the institution”. The YouTube video and reportage
included slides from the EDI training, quoted extensively from the training materials, and took
issue with the concept of “white supremacy” as it was discussed in the training program.
31. The reporter stated that “the former staff member alleges that these programs came into
place after Dr. Jane Ngobia, VP of Inclusive Communities and former diversity officer, joined the
faculty”. Mr. Chapados then went on to note that Dr. Ngobia had been at the University of
Guelph previously, and included a video from 2015, all apparently intended to cast her in a
negative light.
32. From the screen shot of the YouTube video of Mr. Chapados reporting on this story, it is
clear that by 3:23 p.m. on March 25, 2021 the video had been viewed 13, 517 times since being
posted on February 25, 2021. As well, there were 357 comments posted by that date, most not
supportive of the Sheridan EDI materials, and some commenting negatively about the College
itself.
33. The Employer identified the grievor as having something to do with the RN reportage as it
had seen his name on a tab on a screen shot of the EDI training materials used in the story. The
tab said “Mail – Tom Hipsz”. Rebecca Sprague, Director Human Resources Services, was made
aware of the RN video and the connection to Mr. Hipsz by around February 26, 2021.
34. On or about March 3, 2021, Deborah Metrakos, Director Employment Relations & Talent
Acquisition, asked Ms. Raguz to look into the matter to find out if the grievor had shared the
EDI training material with anyone, and if so, with whom, as well as finding out anything related
to the training issue.
35. That same day Ms. Metrakos also advised Ms. Raguz that as the grievor’s job involved
advising students, the senior Human Resources and Student Affairs managers were not
comfortable having the grievor advising students with the mindset or mentality he was
displaying. Ms. Metrakos and Ms. Raguz discussed whether the grievor could be laid off if he
was not being utilized at the time in Athletics, as the College was still operating remotely and
there was limited Athletic programming running. They ultimately agreed that may be seen as
retribution, and instead Ms. Raguz was to advise the grievor of the College’s concern about his
potential involvement.
36. In a conversation with Mr. Flack that day, Ms. Raguz learned that he had already had a
discussion with Ms. Sprague about the video. As a result, he had called the grievor on February
26, 2021 to ask if he had shared the EDI training materials with anyone. Mr. Hipsz had
indicated he had shared it with a friend. Mr. Flack had asked the grievor if he was alright, and
when the grievor told him that he was alright, had told him that this was now a management
issue. Mr. Flack advised Ms. Raguz that the grievor was very bright but lacked judgement and
reminded her about the previous social media incident.
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37. The grievor recalls that Mr. Flack had called him and told him there was a video, and that
management would want to talk to him about it. He asked the grievor if he had seen the video,
but the grievor had not done so at that point. It was after that call that the grievor went to the
Rebel News site online and saw the story.
38. Mr. Flack contacted the grievor by email on March 4, 2021 and told Mr. Hipsz that he
would have to attend a videoconference meeting on March 5th with Mr. Flack and Ms. Raguz.
He further advised that the Union had been contacted, and that the Local President, Nancy
Heath, was available to attend if the grievor wanted her there. While in cross-examination Ms.
Raguz conceded that the grievor was not told at that time what the meeting would be about,
she knew that Mr. Flack had already told the grievor on February 26th that the College was
aware of the RN video, and that management would be handling it, so the grievor would have
surmised what the meeting was going to be about. In fact, the grievor testified that was exactly
what he had assumed based on his earlier phone call with Mr. Flack.
39. At the meeting on March 5, 2021, present were the grievor, Ms. Heath for the Union, and
Ms. Raguz and Mr. Flack for the Employer. Mr. Flack told the grievor that the purpose of the
meeting was to advise Mr. Hipsz that there were concerns that had come to the attention of
the College, and that the grievor was being placed on a non-disciplinary leave with pay effective
immediately pending review of the matter. He was told that the leave with pay would be till
March 18th and may be extended if required.
40. Ms. Raguz advised Mr. Hipsz that he would be expected to be available to attend meetings
during the administrative leave, and that he was not to perform any duties relating to his
position, including not attending the campus or communicating with employees and students
regarding work-related matters. He was told to treat the matter as confidential, and only
communicate about the matter with the Union representative or as requested by the College.
Following the meeting, Ms. Raguz confirmed the leave in a letter sent to the grievor on March
5, 2021 by email.
41. The Union cross examined Ms. Raguz about whether Mr. Hipsz was told at the March 5th
meeting why he was being put on an administrative leave, and whether he was told what
employer policies he was alleged to have violated. Ms. Raguz testified that the grievor was told
concerns had come to the attention of the College, and they would be reviewing the matter.
He was not told of any policies that he was alleged to have violated. I am satisfied that there
was nothing improper in what the College did at that juncture: the grievor knew what the issue
being investigated was, as he had already been told by his manager, Mr. Flack. Furthermore, as
it was very early in the investigation, there would be no reason to allege breaches of any
particular policies at that time.
42. On March 15, 2021 the College held a fact-finding meeting with the grievor. Present were
Ms. Raguz and Mr. Flack for the Employer and Mr. Hipsz, accompanied by Ms. Heath for the
Union. There was no dispute about the accuracy of Ms. Raguz’ notes of that meeting. The
grievor was told that the purpose of the meeting was to collect information related to the
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College’s concerns; to determine if there had been any policy or procedural violations; and to
give the grievor an opportunity to provide any additional information that should be
considered.
43. At the meeting the grievor confirmed that he had viewed the RN YouTube video in question
on February 26, 2021, after he had been called by Mr. Flack to advise him that the College had
become aware of it, and that he had not seen it before then. Mr. Hipsz confirmed that he had
shared with Rebel News the training materials that were in the screen shots used in the video.
He thought he had sent them to RN about two weeks prior to the news item; he had done so
using his personal email; and, that he had told RN that he took offence to the material and
found it contrary to the Human Rights Code.
44. Mr. Hipsz indicated that there had been some diversity training at Coca Cola in the U.S.
about “how to be less white”; that when it was leaked to the public there had been a backlash,
and as a result Coca Cola had pulled the training. That was what he was hoping would happen
at Sheridan as he found the EDI training offensive and wanted the College to stop using it. His
intention was that the College would be embarrassed once the training became public, as he
believed Coca Cola had been in the U.S. He stated that he didn’t have avenues within the
College to raise his concerns.
45. When asked if he would share the emails he had exchanged with RN, the grievor had
indicated he would discuss that with the Union. However, he advised the Employer that his
contact with RN had not been extensive and that he had not had any control over what they did
with what he sent in. Mr. Hipsz indicated further that RN had “dragged in stuff from Guelph”
but that was not anything that he had said. He did however admit at the meeting that he had
been aware some time ago about the University of Guelph video that implicated Dr. Ngobia,
and that it was likely soon after her hiring at the College that the video “got ramped up”. He
noted that after the creation of the office that Dr. Ngobia directs, this type of EDI training
seemed to come about. However, Mr. Hipsz indicated that his intention had not been to lead
an attack on her, and he had not provided RN with a link to anything about Dr. Ngobia.
Nonetheless, he continued to maintain that the training was contrary to the Code, and that he
felt that it was discriminatory. That was his response to many questions during the meeting:
that the College was publicly funded and that in his reading of the EDI training, it was contrary
to the Code.
46. Dr. Ngobia had been hired in January 2019 as the Vice President, Inclusive Communities,
and Ryan Piper had become Vice President of Human Resources around August 2018. As noted
earlier, they were the two signatories to the email to all College staff advising them of the
imminent EDI training.
47. At the meeting, the grievor also indicated that he had taken offence to the EDI training held
in Student Affairs in February 2021. Mr. Hipsz stated that staff were told there was to be some
EDI training done over the course of four meetings; they had been told in advance that it would
be led by a facilitator, and that reference would be made to a book by Ibram X. Kendi. In the
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grievor’s view, Mr. Kendi’s views are themselves racist. According to the grievor, Mr. Kendi was
promoting discrimination in order to level the playing field. Ibram X. Kendi is an African
American writer and professor who writes about race and discriminatory policies in the U.S.A.
48. The grievor stated that he was very upset by the division of staff into White and Person of
Colour caucuses as part of the EDI training, and that had been the point at which he
determined to go to Rebel News.
49. At the March 15, 2021 meeting, when asked why the grievor felt he could not raise his
issues regarding the training within the College Mr. Hipsz had indicated that he had no
confidence in using official channels within Sheridan based on his past experience. It is worth
noting at this juncture that the grievor told the Employer at that meeting about three incidents
which he took as the reasons why he could not complain at the College. As these were matters
that he came back to repeatedly in the course of his evidence in chief and in cross examination
at this arbitration, they are outlined next.
50. The first was the March 2020 matter outlined earlier, which had occurred near the
beginning of the COVID-19 pandemic when Mr. Hipsz had sent an email suggesting that the
College consider using its 3D printers to make PPE, as was being done in Italy. He claimed that
he was “officially taken to the woodshed” about this by Ms. Lucido Bezely, the Dean of
Students.
51. The second example that he used was that Mr. Hipsz had raised his concern about the EDI
training initially in October 2020 with his manager Mr. Flack, and at that time had himself told
Mr. Flack that he knew that there was nothing that his manager could do about it.
52. The third example used related to a staff member in Athletics, who the grievor stated had
at some unspecified time in the past kept referring to “white privilege” in meetings. The
grievor had complained to Mr. Flack that he didn’t like that, so Mr. Flack had spoken to the staff
member and the use of the term stopped. While this appears to be an example of the grievor
raising an issue and it being addressed and stopped internally, the grievor kept referring to it as
one of the examples of how nothing could be done internally.
53. Ultimately, at the March 15, 2021 meeting the grievor stated: “Did I take the best route?
No, but I felt voiceless and marginalized”. He reiterated that he had stuck his neck out when he
saw students of colour treated badly and had been chastised for that too. He mentioned that
he had a bi-racial child who had special needs.
54. The Union cross examined Ms. Raguz about whether at the March 15th meeting there had
been any mention to the grievor about the College’s Discrimination and Harassment Policy. Ms.
Raguz indicated there had not been any mention of that policy, as the purpose of the meeting
had been fact-finding, and to see if any policy or procedure had been breached.
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55. Following that meeting Ms. Raguz shared the information from the fact gathering meeting
with Ms. Metrakos, whose view at that juncture was that the grievor’s actions had led to the
public disparaging of Sheridan College and Dr. Ngobia. Ms. Raguz also shared the facts
gathered to that point at a meeting with both Mr. Piper and Ms. Metrakos. At that meeting Mr.
Piper stated that Dr. Ngobia’s anxiety was heightened. The question was asked whether the
grievor had shared his concerns about the EDI training with the Union. As became apparent
during the course of this arbitration, the grievor had not shared his concerns with the Union as
he had not thought of the Union at the time, and in any case, did not feel they would have
supported him in his views about the EDI training.
56. On March 18, 2021 the Employer extended the grievor’s paid leave of absence to March 26,
2021. As time went on, there were further extensions of the leave to March 31, April 7, April
16, and April 21, 2021. It is worth noting that at meetings and in these letters, Sheridan
consistently indicated to the grievor that it was aware that such processes could be very
stressful, and it wanted to ensure that he knew that he was entitled to make use of the
College’s Employee and Family Assistance Program.
57. During the period following the March 15th meeting, Ms. Raguz asked the grievor
repeatedly to provide his email correspondence with RN. On March 18, 2021 Mr. Hipsz had
indicated that although the Union was encouraging him to disclose his emails, he was
consulting with others about whether to do so. On March 22, 2021 the grievor declined to
share the correspondence as he felt it was a violation of his privacy. On March 23, 2021 Ms.
Raguz asked that all emails relating to the investigation and RN be preserved in case the issue
moved to litigation. On March 26, 2021 the grievor indicated he had consulted with attorneys
and his brother, who had over two decades of experience in law enforcement, and was
declining to provide the correspondence between himself and RN, as the request was
inconsistent with basic privacy rights. According to the grievor, he had been refusing to provide
the email exchange as he felt that it was private information and that he was not obliged to
provide it to the Employer.
58. On March 30, 2021 Ms. Raguz interviewed Dr. Ngobia. While Dr. Ngobia indicated she was
aware of the video, she had not reviewed it. Based on what she had heard from others about
what the RN video showed, she understood that it was a challenge to Sheridan College’s
approach to EDI, and that the person who had raised it did not agree with the equity work
being done at the College. When asked about the impact of the RN video on Dr. Ngobia, she
had responded that she was worried for her children, and was concerned for her own and her
son’s safety. She was also worried about the psychological impact on her children and their
wellbeing. Based on what the grievor had raised, she wondered if others at the College shared
his views and would escalate their behaviour since the video had not been successful in
stopping the EDI training. She indicated that she felt that she had been unfairly targeted as no
decision about training was made by her alone, but rather by the leadership team, and that EDI
had been one of the elements of the College’s Strategic Plan.
13
59. On March 31, 2021 Mr. Hipsz provided Ms. Raguz with the email communication he had
had with Rebel News, stating he was doing so under duress. He reiterated that he felt it was an
invasion of his privacy but was doing so under threat of potential termination and litigation.
The email correspondence has been outlined earlier.
60. On March 31, 2021 the Employer had another investigation meeting with the grievor. In
attendance were Ms. Raguz and Mr. Flack for the College, Ms. Heath for the Union, and the
grievor. Mr. Hipsz was asked who he had been referring to when he had indicated in his March
26, 2021 email to Ms. Raguz that “I feel it is important to outline that I am not the only party
who may be negatively impacted by this matter”. The College wanted to know if there were
any witnesses or parties who should be considered and interviewed as part of the investigation.
The grievor clarified that there were not: rather, that he was alluding to the Human Rights
Tribunal of Ontario (“HRTO”), which was a public forum he was contemplating going to. He
suggested that if Sheridan had not enjoyed the issue regarding the EDI training going to RN, if
he went to the HRTO, it would more public.
61. The grievor was asked why, since the August 7, 2020 email to all Sheridan staff about the
EDI training had been sent by both Dr. Ngobia and Mr. Piper, he had not viewed Mr. Piper as
part of the training initiative. The grievor stated that Mr. Piper had been at Sheridan before the
grievor himself had started, so he believed that Mr. Piper had been with the College for
between 13 and 15 years. As this type of training had only ramped up in the last couple of
years, in Mr. Hipsz’ view it was fair to see these initiatives as coming from the person who was
leading – implying that they had only started after Dr. Ngobia’s hiring. However, the grievor
reiterated that he had never met “the good doctor”, and that it was the initiatives to which he
was taking offence, he had nothing against her.
62. When asked if there were any mitigating factors the grievor wanted considered, he advised
that his parents had grown up in World War II in Poland, and his mother was evacuated and
forced to leave her family. He stated that his father grew up in Warsaw and had seen it
flattened. His parents had left Poland to get away from all that when Poland became a
communist country after the war. As such, for him, to be labelled as an imperialist or colonialist
was extremely offensive. He indicated that as their son, it was important to understand their
history.
63. The Union cross examined Ms. Raguz about whether violation of the Discrimination and
Harassment Policy was discussed at the March 31st meeting, and the witness stated it was not
as no policy violations were discussed at the meeting. The grievor confirmed in his testimony
that at no point prior to the termination meeting did the Employer tell him that he was being
investigated for a potential policy breach.
64. On April 1, 2021 Ms. Raguz prepared a draft summary of her investigation findings and
shared it with her supervisor, Ms. Metrakos. The draft summary was never finalized as it was
ultimately deemed unnecessary once the final decision had been made to terminate the
14
grievor’s employment. Instead, the information regarding the investigation findings was
provided in the grievor’s letter of termination.
65. On April 13, 2021, Ms. Raguz emailed Mr. Flack, and his supervisor, Ms. Lucido Bezely,
summarizing pertinent information from the draft summary of the investigation. She indicated
that given the findings, the recommended action would be discipline up to and including
dismissal. She sought their advice about what they wanted to do.
66. At a meeting on April 14, 2021 between Ms. Metrakos, Ms. Lucido Bezely, Mr. Flack and
Ms. Raguz, they discussed the outcome of the investigation. It was noted that the grievor had
sought to disparage the College’s EDI training; his intention by making it public was to get the
College to remove the training; he knew what he was doing was wrong and had therefore asked
RN to characterize him as former faculty as he still had to put food on the table; so he knew
that his actions could lead to losing his job; while he had the right to disagree with the College,
he should not have taken his fight to a public forum; it was not possible to take corrective
action in this case as the grievor was taking a political stand; and he had associated the
initiation of the training with Dr. Ngobia’s hiring despite both Mr. Piper and Dr. Ngobia having
rolled it out. As such, management was of the view that it was not a far stretch to view the
grievor as having targeted Dr. Ngobia. Finally, the management team noted that the grievor
had shown no contrition. Based on all the findings, they determined that there was just cause
for termination. According to Ms. Raguz, the most senior person at the meeting, and the
person who could make the final decision about termination was the Dean of Students, Ms.
Lucido Bezely.
67. Ms. Raguz was cross examined about whether, at the April 14th meeting, there had been
any discussion about the grievor’s previous Letter of Expectation. Ms. Raguz testified that she
did not recall them discussing that so she could not say it had been part of the consideration of
the issues. I note there was nothing in Ms. Raguz’ notes of that meeting that suggests it was a
consideration, and in general there was little or no quibble with Ms. Raguz’ notes of meetings
where the Union and/or grievor had been present.
68. Once the decision had been made by her superiors, Ms. Raguz assisted in the drafting of
the termination letter, and prepared the script for the termination meeting. As well, along with
Mr. Flack, she attended the termination meeting.
69. On April 20, 2021 the termination meeting was held with the grievor. In attendance were
Mr. Flack and Ms. Raguz for the Employer, Ms. Heath for the Union, and the grievor. Mr. Flack
outlined that the investigation had been completed; that the grievor had shared the
“Foundations of Equitable Practices” training material with Rebel News with the intention of
creating public backlash against the training and Sheridan; that the grievor had acknowledged
that he hoped that would force the College to take the training down; that the grievor knew
that Inclusion and Equity had been identified as an “Empowering Enabler” of Sheridan’s
Strategic Plan; and that he had deliberately and covertly sought to undermine the College’s
strategic direction in ways that amounted to sabotage and gross misconduct.
15
70. Mr. Flack had also noted the College’s concern that the grievor had intentionally identified
a link between the implementation of the training and Dr. Ngobia, which resulted in Dr. Ngobia
being publicly and unjustly targeted and disparaged. While the College acknowledged that the
grievor had a right to have values contrary to those of his Employer, Mr. Hipsz had numerous
other dispute resolution processes which he could have accessed to challenge the training, but
had not done so. The Employer had concluded that Mr. Hipsz, through his actions, had violated
the Code for Professionalism and Civility, and the Harassment and Discrimination Policy. His
misconduct had in fact resulted in the public disparagement of the College and a senior leader
and had irreparably harmed the College’s trust in him. Mr. Flack stated that Mr. Hipsz was
therefore being terminated from employment. He then left the meeting and Ms. Raguz
finished up by telling the grievor that he had access to the Employee and Family Assistance
Program till the end of the month, that he needed to return any Sheridan property he had at
home, and that he should advise the College of any personal items he had at his office so that
they could be sent back to him. She also undertook to ensure that his pay stub was sent to him.
71. In her testimony, Ms. Raguz outlined the reasons for termination that Mr. Flack had
mentioned at the termination meeting, but added that the Employer had considered that just a
year prior, in 2020 the grievor had been counselled about the importance of ensuring that his
conduct did not negatively affect the College’s interest. Yet, Mr. Hipsz had intentionally sought
to cause the College reputational harm by going to Rebel News about the EDI training. She
maintained that if the grievor had an issue with the training he could have gone to his Union, he
could have filed a grievance, or gone to the HRTO if he felt his human rights had been violated.
She noted that the grievor had been fully aware of the seriousness of his actions, and had
known that they may lead to termination, but had gone ahead. She stated that Mr. Hipsz had
irreparably harmed the employer-employee trust relationship, and that termination was
therefore the appropriate course of action.
72. The Union cross examined Ms. Raguz about the Discrimination and Harassment Policy and
the procedures outlined therein regarding how complaints were to be handled and resolved.
The Policy outlined a conflict resolution process, a personal resolution process, facilitated
resolution and a formal resolution process. The Union asked if any of these resolution
processes had been engaged in this instance, and Ms. Raguz stated that in this instance there
was no complaint made pursuant to the Policy, so there was no reason to do so. To her
knowledge, Dr. Ngobia had not filed a complaint. As well, to her knowledge the Centre for
Equity and Inclusion was not involved in any step of the process that led to Mr. Hipsz’
termination. Ms. Raguz acknowledged that the first time the grievor would have been made
aware that he had violated the Harassment and Discrimination Policy was when he received the
termination letter.
73. The grievor testified that the termination was devastating to him. He had known that it
was possible that his action could lead to dismissal, but he thought that if the College followed
“the rules”, there would be “progressive discipline”. However, he was also of the view that the
College did not always follow “the rules” in its dealings with students.
16
74. The Union asked Mr. Hipsz if he had been given the opportunity to apologize to Dr. Ngobia,
and he said he had not; nor had he been offered an opportunity to take additional EDI training,
or training regarding confidentiality.
75. In cross examination it was put to the grievor that nothing had prevented him from
apologizing about what he had done at any time. Mr. Hipsz indicated he did not know who he
could have apologized to, or how, as he had been told not to contact anyone at Sheridan during
the investigation. When it was put to him that he had three meetings with Mr. Flack and Ms.
Raguz during the investigation and had never apologized and never said he had not wanted this
to happen to Dr. Ngobia, the grievor indicated that he had tried to do that by telling them that
he had not sent anyone after her, and that he had never even met her. Mr. Hipsz conceded
that he could have apologized for how the RN piece may have damaged Sheridan College, and
he had not done so. However, he continued to maintain that all he had wanted was
“transparency” regarding the training.
76. The grievor testified that when he was put on a paid leave pending the investigation, and
since then, he has felt lost as he had taken his job seriously and helped a lot of young adults. It
has affected his sleep. The grievor testified that the termination had caused him other
difficulties as well as he had to have hip replacement surgery in early August 2021 (which had
been scheduled before his termination, and which Mr. Flack had known about), and could have
benefited from health benefits for physiotherapy, but had none as a result of his dismissal. The
loss of benefits has affected both him and his daughter. He stated that he has experienced
anxiety, which has caused a flare up in a skin condition, and it has been difficult for him both
financially and emotionally.
77. While the grievor has a Master’s degree in Education, he testified that he has looked for
and done some manual labour and construction work since his dismissal. He is concerned
about the type of reference he would get from Sheridan if he looked for a job in education
similar to the one he had.
78. The grievor stated that he had done a lot of good work with students for many years and
had never ever judged anyone based on the colour of their skin. He indicated he believed in Dr.
Martin Luther King’s writings, not those of Ibram X. Kendi.
79. In cross examination the grievor was asked whether he disagreed with the concept of
“White privilege”. In the grievor’s view, it exists in some cases, such as the Mayor of Toronto,
John Tory, or the Prime Minister of Canada, Justin Trudeau, because they grew up with a lot of
privilege, unlike Mr. Hipsz’ parents, who did not.
80. The grievor believes that the EDI program at Sheridan is possibly contrary to the Code, is
“dangerous”, and should be changed so that it does not attack someone for their race. In cross
examination, when asked why, given this view, he had not gone to the HRTO with his concern
about the EDI training, Mr. Hipsz stated that he feared a backlash if he did that. He indicated he
17
was not aware that the Code contained a prohibition against reprisals for filing complaints.
However, he felt that while theoretically there are protections for whistleblowers, in practice
they don’t work. He testified that he also chose not to make a complaint to the HRTO as a well-
known constitutional lawyer to whom he spoke about this, had told him that while there was a
lot to what he was saying, it could cost approximately $20,000 to mount a challenge to the EDI
training program. Mr. Hipsz conceded that he knew that there was a Human Rights Legal
Support Centre for complainants seeking free help, as he had used that service in the past in
relation to an issue regarding his bi-racial child and how he believed she and he had been
treated in their apartment building.
81. Mr. Hipsz was cross examined about whether he knew that he could have gone to the
Union to represent him in his interaction with the Employer. While the grievor knew he could
do that, he also knew that the Union as an organization supports EDI efforts, and thought that it
would not agree with his view that White privilege training violated the Code. In any event, he
testified that he had not thought of contacting the Union as an avenue to address his issues
with the EDI training.
82. In cross examination it was put to Mr. Hipsz that Janet Morrison, the President of Sheridan
College, had made it known that she would be happy to hear from the College community
members when they had concerns. Mr. Hipsz indicated that he had tried that once, in relation
to the issue of students in sleeping bags camping out on the floor of the College at 4 a.m. in
order to change courses. He testified that had led to the Dean of Students or Mr. Flack
reprimanding him.
83. The grievor was asked in cross examination why he did not go to the Ombudsman’s Office
about his concern, but Mr. Hipsz was not aware of this potential avenue of complaint.
84. There was considerable focus in the evidence on the grievor’s role in the Rebel News piece,
his motivation, and what he knew could be the outcome of his action. According to Mr. Hipsz,
his only contribution to RN was the slides, and the information on the one phone call with the
RN reporter, so anything else that went into the RN video was as a result of what Mr. Chapados
must have found himself using Google. The grievor testified that he had no input into the
headline of the story, and was not consulted or aware of the content of the story before it was
posted, and as noted earlier, he had not become aware that it had been posted until he was
contacted by Mr. Flack.
85. The grievor conceded in cross examination that he had not wanted to be identified in any
way with the RN piece as he knew that the College would not like it and would react negatively
to the story. However, he was insistent that he wanted transparency about the College’s EDI
training at the time, and now regrets that decision, and how it affected Dr. Ngobia. When
asked if he knew that what he had done was wrong, and so wrong that it would likely lead to
his being fired if he was found out, the grievor disagreed. He testified that he knew that there
was a possibility that he would be fired, but he did not think it was wrong to bring transparency
to the EDI training as the College is a publicly funded institution, and should be “an open book”.
18
Ultimately, he stated that he did not think that what he had done was wrong, but stated that he
had used the wrong avenue.
86. Mr. Hipsz conceded that he knew that it was wrong to publicly shame or embarrass his
employer, but at the time he had considered “transparency” as outweighing a “brief blowback”.
87. In cross examination the grievor was asked if he regularly followed Rebel News. Mr. Hipsz
indicated that he used to follow it more, but no longer does. As a result, he had been aware of
RN’s style of reporting and editorial view. When asked if he had expected they would share the
grievor’s view of the College’s EDI training, the grievor responded that he believed they would
lean towards the view that it was not “in line with the Human Rights Code”. Once he had seen
the RN piece, he had not been surprised by the tone and tenor of it as it was what he would
have expected. He had not been surprised with how RN had presented the information, nor
that RN was critical of the training because he had expected that. However, Mr. Hipsz testified
that he had not expected the attack on Dr. Ngobia.
88. With respect to the attack on Dr. Ngobia, the grievor conceded that he had told RN when
the training had been initiated, and that it seemed to have been after the College had
appointed a Vice President of EDI. However, he testified that he was surprised by “how they
went after Jane”.
89. Mr. Hipsz was asked if he had complained to anyone at RN after the piece had aired about
this issue. He indicated that he had contacted the reporter after Mr. Hipsz had been identified
by the College as the person who had likely leaked the EDI training slides to RN. He had done
so to tell Mr. Chapados that Sheridan was doing an investigation, and that any type of
identifiers were supposed to have been removed. He recalled that RN indicated that it could
help him with a lawyer, but the grievor was vague about any other discussion with the news
outlet. He conceded he had not complained about any of the content of the RN piece, nor its
tone or tenor, but only about how it had affected him.
90. The grievor was cross examined about the extent of his knowledge about other news
outlets in the Greater Toronto Area. He indicated he was well aware of the Toronto Star, the
Globe & Mail, the National Post, and the Toronto Sun. When he was asked if he agreed that the
mainstream media did balanced reporting, the grievor’s response was that those media outlets
get a lot of subsidies, so that they “go more to the side where the subsidies come from”, and
“don’t bite the hand that feeds them”. When asked whether he was aware that the
mainstream media generally sought comment from both sides on an issue, Mr. Hipsz agreed,
but was of the view that RN also did that but was usually rebuffed. There is no evidence in this
case that Rebel News had contacted anyone at Sheridan College about the EDI training before it
posted its news video about it.
91. In any event, it was the grievor’s testimony that he did not care about balance in this
instance as he felt that Sheridan is a publicly funded institution, and he wanted transparency on
this issue so that everyone could have a conversation. In his view, the College should have
19
posted the EDI training modules so that the public could see them. However, when cross
examined further about his personal interest in not being identified, and his own lack of
transparency in that regard, the grievor indicated he had his job, he had to feed his child, and
he knew how Sheridan had acted before, so he had been very worried about his job and family.
THE ARGUMENTS AND FINDINGS
92. It is unnecessary to outline the parties’ final submissions, which were lengthy and included
reviews of their respective caselaw. Rather, the arguments will be addressed in the context of
the facts and caselaw in the findings outlined below.
93. The College relied on the following jurisprudence in support of its arguments: Sheridan
College and O.P.S.E.U. (2010), 201 L.A.C. (4th) 243 (Bendel); Camuson College v. C.U.P.E., Local
2081, 1999 CarswellBC 4507 (Germaine); Wasaya Airways LP v. A.L.P.A. (Wyndels)(2010), 195
L.A.C. (4th)1 (Marcotte); Serco Facilities Management Inc. and P.S.A.C.(Baggs)(2000), 91 L.A.C.
(4th)289 (Oakley); and Interior Roads Ltd. v. B.C.G.E.U. (Glen)(2003), 123 L.A.C. (4th)171
(Jackson).
94. The Union relied on the following jurisprudence in support of its arguments: William Scott
& Co. [1977] 1 Can. L.R.B.R. 1 (Weiler, Ch); USWA Local 3257 v Steel Equipment Co., 1964
CarswellOnt 498, [1964] 14 L.A.C. 356 (Reville); Ocean Paving Ltd. v IUOE Local 721, 1997
CarswellNS 595, 48 C.L.A.S. 129, 64 L.A.C. (4th) 82; Trillium Health Partners and CUPE, Local
5180, Re, 2021 CarswellOnt 37, 323 L.A.C. (4th) 315 (Jesin); Air Canada v. C.A.W., Local 2213,
1994 CarswellNat 1654, 35 C.L.A.S. 580, 41 L.A.C. (4th) 171 (MacDowell); British Columbia
(Ministry of Public Safety & Solicitor General) v. B.C.G.E.U., 2009 CarswellBC 3635, 186 L.A.C.
(4th) 143 (1) (Steeves); British Columbia (Ministry of Public Safety & Solicitor General) v.
B.C.G.E.U., 2009 CarswellBC 3636, 186 L.A.C. (4th) 168 (2) (Steeves); Haydon v. Canada
(Treasury Board), 2004 CarswellNat 1590, 2004 FC 749 (Federal Court); Canada (Treasury Board
– Health Canada) v. Chopra, 2001 CarswellNat 3853, 96 L.A.C. (4th) 367 (Galipeau); United Food
and Commercial Workers Canada – Local 1006a v Nitta Gelatin Canada, Inc., 2020 CanLII 80318
(ON LA) (Rogers); and, Re Tenant Hotline and Peters and Gittens, 1983 CarswellOnt 2389 10
L.A.C. (3d) 130 (MacDowell).
95. The facts are not really in dispute, so the only questions for me to address are whether the
Employer has established that it had just cause to discipline the grievor for his actions; if so,
whether discharge was an excessive response in all the circumstances of the case, and if I find
that it was an excessive response, what alternative discipline should be substituted, having
considered any mitigating factors which may militate in favour of a lesser penalty (Re Wm. Scott
& Company Ltd., cited below, at p. 5).
***
96. Based on the evidence, and for the reasons that follow, I am satisfied that the Employer has
established just cause for discipline in this case.
20
97. The Union does not dispute that the College has just cause for some discipline, but it
maintains that the grievor should have been given a three-day suspension, and directed to
undergo a different, directed, one-on-one training to better explain to him how the Human
Rights Code operates to protect the most marginalized. In the Union’s view, that would have
created a more inclusive workplace.
98. Notwithstanding the Union’s concession that the Employer had just cause for discipline,
since it is arguing for a light disciplinary penalty, I will review the reasons why I have found that
just cause has been established, as that will inform my findings on the second question.
99. I start with the concept of an employee’s duty of fidelity to their employer, which was a
cornerstone of the Employer’s argument in this case. The College argued that the grievor owed
his employer a duty of fidelity, as without trust and fidelity it is difficult to envision a productive
ongoing employment relationship. In light of Mr. Hipsz’ action, the College asserted that it
cannot repose any trust in him nor believe that he will exhibit fidelity in the future since he
intentionally sought to publicly embarrass his employer in order to have it change how it
trained its staff on EDI.
100. The Union maintains that the grievor sincerely believed that the EDI training was a
violation of the Human Rights Code. It further maintains that the training materials were not
confidential or proprietary in nature as they were similar to what other organizations are using
or that can be freely obtained from the HRTO website. The Union states that Mr. Hipsz deeply
felt that the training was creating divisions in his workplace by dividing staff into White and
People of Colour caucuses. He also found offensive the concept of “White privilege” because of
his family’s history in World War II Poland and what he had seen in rural Kentucky where there
were poor people of all races. The Union notes that Mr. Hipsz did not disbelieve the concept of
such privilege entirely, but he believed that “White privilege” only applied to those who had
been born to wealth, like the Mayor of Toronto or the Prime Minister of Canada. According to
the Union, since his attempt to have the issue of the training addressed by Mr. Flack had been
unsuccessful, the grievor had nowhere else to go.
101. According to the Union, the Employer’s Code for Professionalism and Civility envisages
that people may disagree with the College’s views, and it maintains that he has the right to
criticize this Employer because it is a public institution. It further maintains that despite the
grievor’s action, the College did not in fact change its training program, so his actions had no
impact on the Employer.
102. The arbitrator in Serco Facilities Management Inc., cited above, addressed whether an
employee who has not had to sign an oath of allegiance owes their employer a duty of fidelity
and loyalty. At pp. 299 to 300 Arbitrator Oakley wrote as follows:
The Union has questioned whether the Grievor owes any duty of loyalty and fidelity to the
Employer in the absence of having signed a document such as an oath of allegiance. There is
21
both arbitral and judicial precedent that an employee has a duty of loyalty and fidelity to the
Employer, that such a duty is an implied term of every employment contract, and that the duty
applies to those employees whose employment is subject to a collective agreement. The duty of
loyalty and fidelity is described in CRC-Evans Canada Ltd. v. Pettifer (1997), 26 C.C.E.L. (2d) 294
(Alta. Q.B.) at page 303, as follows:
It has long been accepted that there is a fundamental term implied in every
contract of employment. The employee is expected to serve his employer
honestly and faithfully during the term of his employment. This duty of fidelity
permeates the entire relationship between employer and employee. It is a
flexible concept that is paramount to the basic relationship. There is an implied
obligation placed upon the employee to act in the best interests of his employer
at all times. The employee shall not follow a course of action that harms or
places at risk the interests of the employer.
Arbitrators have discussed an employee’s duty of loyalty and fidelity in relation to an
employee’s public criticism of the Employer. The issue of public criticism is discussed in Re
Simon Fraser University and A.U.C.E., Loc. 2 (1985), 18 L.A.C. (3d) 361 (Bird) at page 368,
as follows:
Experience shows that, except in the most unusual circumstances, such as in
the case of academics, public criticism of the employer almost inevitably leads
to a deterioration of working relationships with bad consequences for the
employer, the employee, or both. Only when some higher purpose is served
such as to expose crime or serious negligence, to serve the cause of higher
learning, to fairly debate important matters of general public concern related to
the employer or those in authority over him, as examples, can the employer be
publicly criticized about the employer’s conduct without breaching the duty of
loyalty. Even then the criticism must be fair in that a deliberate omission and
negligent misstatement of significant facts will be treated as a breach of the
duty of loyalty and so will a failure to exhaust all reasonable opportunities to
resolve the issue internally before making matters public. The employer’s
legitimate goals must be accorded respect by employees who are required to
work towards accomplishing those goals.
The Arbitrator notes that the comments made by the grievor were not made to the public, but
were made to one person who was the representative of the employer’s customer. A comment
made to a customer is a public comment in the sense that it is made to a person who is outside
the Employer. The arbitral authorities state that an employee is required to exhaust all internal
avenues before criticizing an employer publicly. This principle applies to comments made to
the employer’s customer. Whether the comment is made to one person or broadcast on the
public media is a matter that may be properly taken into consideration when assessing the harm
to the employer and the seriousness of the breach of the duty of loyalty. However, a critical
comment about the Employer to a customer is still conduct by an employee that undermines
the employment relationship and is conduct for which disciplinary sanction is usually
appropriate.
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103. In Camuson College, cited above, the arbitrator stated as follows regarding considerations
when it is alleged that an employee has breached the duty of fidelity and loyalty to their
employer:
88. Arbitrator Weiler provided the following direction with regard to the determination of
whether there has been a breach of the duty:
... each case must be decided on its own facts, taking into account among other factors,
the content of the criticism, how confidential or sensitive was the information, the
manner in which the criticism was made public, whether the statements were true or
false, the extent to which the employer's reputation was damaged or jeopardized, the
impact of the criticism on the employer's ability to conduct its business, the interest of
the public in having the information made public and so forth. (p. 161)
... the arbitrator must balance the various interests at stake. For example, an arbitrator
may consider the extent to which an employee's public criticism of his superiors affects
the employer's ability to maintain the credibility, confidence or disciplinary authority of
the employees' immediate supervisors and the extent to which the criticism creates
disharmony among coworkers. In all cases the interest of the employer in maintaining
an efficient operation must be weighed against the interest of the employees or the
general public in promoting free debate on issues of public concern. (p. 162)
89. One additional consideration is particularly important. In some circumstances an employee
is under a broader civic obligation to make public statements which are plainly against the
employer's interests. The duty of fidelity does not compel an employee to keep quiet in the face
of what Arbitrator Weiler described as "wrongdoing" in the workplace. But employees
are not free to act on mere suspicions. Before making public allegations of misconduct, the
employee is under an obligation to investigate and verify the concerns as far as possible. The
employee is also obliged to take every reasonable opportunity to correct the concerns within
the organization before taking them public. In the words of Arbitrator Weiler:
... it is recognized that public criticism is not the first step that should be taken in order
to bring wrongdoing within the enterprise to the attention of those who can correct it.
In other words, while an employee in some circumstances may be forced to "go public",
e.g., concerning an unsafe chemical or machine which his company produces, before
doing so, he should attempt to get all the facts and give his employer an opportunity to
explain or correct the problem. Most employers have a variety of mechanisms, formal
or informal, under which an employee may lodge a complaint about the manner in
which the enterprise should be operated. Only if there is no satisfaction results from
these channels, then and only then, may an employee "go public". What is clear is that
an employee will be in breach of the duty of fidelity owed to his employer if he makes
false public statements which the employee either know them to be false or is reckless
as to the truth of the statements. When an employee fails to use the available resources
to determine the accuracy of critical comments about one's employer, or when the
employee refuses to use other means to bring his criticisms or the employer to the
attention of those in a position to rectify the problem, he is in my view in breach of the
obligation of loyalty which he owes his employer. (Emphasis added, p. 162)
23
104. In the British Columbia (Ministry of Public Safety and Solicitor General) decision, cited
above, Arbitrator Steeves, quoting from another decision, outlined the factors to be considered
in determining whether a public service employee had breached their duty of loyalty to the
employer as follows at para. 40:
40. I also note another decision (involving what seems to be the same plaintiff named Haydon)
in which the Federal Court discussed the approach to be taken when considering an employee's
duty of loyalty,
... the following factors are relevant in determining whether or not a public service
employee who makes a public criticism breaches his or her duty of loyalty towards the
employer: the working level of the employee within the Government hierarchy; the
nature and content of the expression; the visibility of the expression; the sensitivity of
the issue discussed; the truth of the statement made; the steps taken by the employee
to determine the facts before speaking; the efforts made by the employee to raise his or
her concerns with the employer; the extent to which the employer's reputation was
damaged; the impact on the employer's ability to conduct business.
(Haydon v. Canada (Treasury Board)), 2004 FC 749; upheld on appeal, 2005 FCA 249,
paragraph 49; cited in Labadie v. Deputy Head (Correctional Service of Canada), 2008
PSLRB 85, at paragraph 190; emphasis added).
105. Based on the jurisprudence, there is no doubt that Mr. Hipsz owed Sheridan College a
duty of fidelity and loyalty as a fundamental element of his employment relationship. It is also
clear on the evidence that he was not exposing to the media that the College had committed a
crime or that there had been some serious negligence or wrongdoing.
106. The grievor in this case was an Athletics advisor to students at the College. He knew that
the College, based in the Greater Toronto Area, and specifically in Brampton, served an
ethnically and racially diverse population of staff and students. He knew that it had made EDI a
part of its current strategic plan, and that it wanted to try to address issues of racism, inequity
and inclusion in its institution. One of the ways it wanted to do so was through the provision of
sensitivity training for its staff so that they may understand the concepts of conscious and
unconscious bias, how one’s level of privilege may affect one’s place in the social order, and
how one may try to recognize and address biases and prejudices in order to have a more
inclusive workplace and student environment.
107. It is clear from the grievor’s evidence that from the Fall of 2020 on, after the EDI online
training was first rolled out to the staff, the grievor was upset about the material. However,
while he texted his manager Mr. Flack the screen shot of the “Where do I have Privilege or
Marginality”, all that the grievor’s message caption said was “Rural Kentucky prime example”.
Despite the grievor’s assertion that he should not have to tell Mr. Flack what to do, it is unclear
based on the evidence why Mr. Flack would have taken from that message that Mr. Hipsz
wanted or expected him to do anything about the EDI training. The grievor conceded in his
24
evidence that he had not in fact asked Mr. Flack to do anything at the time, and he never
complained about the EDI training to his manager, the Union, or anyone else within the College
at any other point before he went to Rebel News months later.
108. Not only did the grievor fail to exhaust any and all reasonable avenues to resolve his
displeasure with the EDI training internally before going to the media, he also did not seek free
advice or support from the Human Rights Legal Support Centre regarding his view of the EDI
training being a breach of the Code, nor complain to the HRTO about the alleged violation of
the Code.
109. The fact that the grievor took his expression of dissatisfaction with the EDI training to RN
in February 2021 is noteworthy in that relatively recently prior to him doing so, on September
17, 2020, he had received the social media Expectations Memo regarding his prolific use of
Twitter to express himself in ways that the College viewed as detrimental to its public image.
While non-disciplinary in nature, that Memo had brought to the grievor’s attention two things.
The first was that the grievor’s conduct both inside and outside the College could negatively
impact the Employer’s reputation, and that as such he needed to exercise good judgment and
ensure that the College’s interests were not negatively impacted by his conduct. The second
was that the grievor needed to understand the guiding principles of the College’s Code for
Professionalism and Civility regarding workplace behaviour and communications, both within
and outside of the College.
110. Sheridan’s Code for Professionalism and Civility has been in place since October 2018. In
the “Purpose” section it states in part that “this document provides the overarching principles
to meet the expectations of Professionalism and Civility (as defined below) at Sheridan and
enhance our reputation” (Section 1). Thus, the College’s reputation was one of the main
aspects of the policy. “Civility” is defined “as a range of behaviours including courtesy, dignity,
acting in good faith and respect” (Section 3). For the purposes of this case, the relevant parts of
the definition of “Professionalism” include that they are applicable to how a person conducts
themselves both in the workplace and offsite; and, elements of professionalism include “civility
in one’s conduct and communications”, “ethical conduct and integrity”, “respect for Sheridan’s
interests and policies”, and “being truthful” (Section 3).
111. There can be no doubt that the College had also made clear in this policy what its goals
were: At Section 4, it stated that “we as a community believe that Sheridan can only achieve its
vision and goals through an environment that embraces diversity, equity, equality, inclusion and
respect” (emphasis added). In order to emphasize the point, at Section 4.1, titled
“Demonstrating Professionalism and Civility” it states as follows in the first section:
(a) Diversity, Equity, Equality, Inclusion and Respect
Embracing diversity, equity, equality, and inclusion requires the highest level of
respect and understanding when interacting with others. Sheridan has policies and
procedures that support the safety, dignity and human rights of our community
members. However, Sheridan will distinguish itself as a truly inclusive learning
25
community through an awareness of the cultural assumptions, norms, and habits we
each bring, and an appreciation that others may have different cultural assumptions,
norms, and habits and we should strive to not treat others with judgement or bias.
A culture of respect is demonstrated in day-to-day interaction which is courteous and
Professional. A respectful environment is not necessarily one without challenging
interactions or one without conflict. As citizens of a respectful environment we pride
ourselves on our ability to constructively challenge each other while behaving with
Civility, in a considerate and Professional way.
112. Thus, as is clear from the policy itself, Sheridan did not expect that everyone in its large
community of employees, students, contractors, consultants, volunteers and others would
necessarily agree with the College’s values regarding EDI, but it did expect that such issues
would be raised in a constructive, considerate and professional manner.
113. Nonetheless, in February 2021, after an in-person EDI training exercise that deeply
offended Mr. Hipsz, he knowingly and surreptitiously contacted a right-wing media outlet to
make public some of the College’s EDI training materials and his own dissatisfaction with that
training. His stated intention was that by making the training materials public it would cause
such a furor that the College would stop using the training. Mr. Hipsz believed that, as had
happened in the United States when Coca Cola withdrew its diversity training materials after
they had been leaked to the conservative media, and made public to the extent that there was
a severe backlash from some against the Coca Cola training program, so too would Sheridan
College face a backlash and withdraw the EDI training.
114. The grievor did not go to the training facilitator, Mr. Flack, or anyone within the College,
to raise his concern about the efficacy of the White caucus/People of Colour caucus exercise to
have it addressed in a constructive and professional manner. I cannot accept as an excuse that
the grievor did not feel he could go to anyone in the College with his concerns because he had
previously been “taken to the woodshed”, as he put it, when he had gone above Mr. Flack’s
head. He also believed that nothing would be done about his concern.
115. As already noted, in early October 2020 the grievor had not in fact complained to Mr.
Flack about the EDI training and had not asked him to do anything about it, so that could not
count as an example of nothing being done about his concerns. Quite the opposite, in the
grievor’s own testimony he had given an example from the past of Mr. Hipsz raising a concern
with Mr. Flack about a colleague referring to “White privilege” during athletic staff meetings,
Mr. Flack had spoken to the individual, and the behaviour had stopped. So, it would appear
that Mr. Flack was responsive when the grievor asked him to do something about a situation
that specifically involved the concept of “White privilege”.
116. The 3D printer and PPE example was not indicative of the grievor being reprimanded for
going over Mr. Flack’s head: it was simply the Dean of Students responding to the grievor’s
26
somewhat-sarcastic message sent to everyone in the department; she asked him not to include
the full department on his message; and, to give his idea to Mr. Flack as she was in a meeting.
117. The grievor’s last example regarding students sleeping in the hallway had few details, no
timeline, and the grievor was not even sure who had spoken to him about whatever he had
raised. As such, it is impossible to ascertain whether it was an example of the grievor being
“reprimanded”.
118. The grievor testified that he does not believe in the concept of “White privilege” as it was
being described in the EDI training, so it is apparent that he felt he could do whatever he
wanted to publicly attack the College and its EDI training program. Prior to contacting Rebel
News Mr. Hipsz had been a follower of RN and was familiar with its style of reporting and its
editorial view. He had expected RN to share his view of the EDI training. Once he had seen Mr.
Chapados’ report about the College’s EDI training, he was not surprised by the tone and tenor
of the video. It is therefore apparent that he showed reckless disregard for his employer’s
reputation when he went to RN with his story as he knew that the reporting would be of an
incendiary nature.
119. It was not only the College that was affected as an institution by Mr. Hipsz’ leak of the EDI
training materials to Rebel Media: Dr. Ngobia, the Vice President, Inclusive Communities and a
Black woman, was also affected. The Union maintains that the grievor was not seeking to
harass Dr. Ngobia, either intentionally or otherwise, and that he has indicated that he was sorry
for how the RN video had impacted her.
120. While the grievor claimed that he was not expecting the attack on Dr. Ngobia, his
assertion is difficult to accept given that he knew the type of reportage that RN engaged in. Mr.
Hipsz had pointed Mr. Chapados in Dr. Ngobia’s direction when he told the reporter that the
College had started its EDI training of staff after the hiring of a Director of Equity and Inclusion.
The grievor admitted that he had been aware of the University of Guelph video about Dr.
Ngobia well before he had contacted RN, as it appears he had viewed it after her hiring. Thus,
while Mr. Hipsz may not have given RN Dr. Ngobia’s name, he had identified her by her
position; he had intimated that the EDI training was all her doing (and had never mentioned
Ryan Piper, the Director of Human Resources, who had also signed the email announcing the
EDI training); and it should therefore have been no surprise that the RN reporter would have
easily found her name and then the Guelph video. As the Employer put it in argument, Mr.
Hipsz picked his champion, primed it for the attack on Dr. Ngobia, and was indifferent about
what RN did to Dr. Ngobia in its reporting.
121. It is instructive that despite the grievor’s testimony about how he felt that RN had gone
too far regarding Dr. Ngobia, and that he was sorry about that, he never raised his concern with
RN after he had seen the video, nor indeed at any time thereafter, even when he contacted the
reporter about the video having caused the College to identify that he was the leak.
122. While the Employer had stated in its termination letter that the grievor’s targeting of Dr.
27
Ngobia, and its impact on her, was a violation of the Discrimination and Harassment Policy, the
Union argued that the Employer had conducted a flawed investigation in that regard. It had
never told the grievor during the investigation that he was alleged to have breached that Policy,
and the College had not followed the steps required in the Policy to investigate the matter. It
had also not given the grievor the benefit of the myriad of resolution mechanisms outlined in
the Policy.
123. The Employer maintained that it had considered the purpose of the Policy, and based on
its investigation, had determined that through his actions, Mr. Hipsz had only implicated Dr.
Ngobia as the person responsible for the EDI training, thus causing her to bear the brunt of the
RN video.
124. The purpose of the College’s Discrimination and Harassment Policy is as follows:
1. PURPOSE
1.1 The Sheridan College Institute of Technology and Advanced Learning (“Sheridan”) is
committed to providing a working and learning environment that is free from discrimination
and harassment, and that is supportive of academic achievement and the dignity, self-esteem
and fair treatment of everyone taking part in Sheridan’s activities. Sheridan seeks
to foster a climate of mutual respect that reinforces opportunity and allows for each person
to contribute fully to the development and well-being of the community. Sheridan will not
tolerate any form of discrimination or harassment as defined by this Policy, the Ontario
Human Rights Code (Code) and the Ontario Occupational Health and Safety Act (OHSA).
The Centre for Equity and Inclusion (CEI) is responsible for administering this Policy (see
4.2 for a full description of CEI’s role).
1.2 While this Policy provides a resolution-oriented process for resolving concerns and,
where necessary, investigating complaints, its primary purpose is to prevent
discrimination and harassment from taking place at Sheridan.
125. It is undisputed that Dr. Ngobia did not raise a concern nor file a complaint about the
grievor’s conduct as regards the Rebel News video. There was therefore no “investigation”
under the Harassment and Discrimination Policy, and thus no engagement of any of the
processes envisaged by that Policy. The College had told the grievor and the Union that the
purpose of the investigation meetings had been fact-finding, and to see if a policy or procedure
had been breached. I am satisfied that the reason the Employer did not advise the grievor
during the three investigation meetings that it was considering his behaviour to be a possible
breach of this particular policy was because at that juncture it was not certain of what policies
may have been breached, and was simply investigating the leak, the RN video, and Mr. Hipsz’
role in it. I find there was nothing improper in the Employer’s actions in this regard.
126. In my view the circumstances in this case did not fully engage the Harassment and
Discrimination Policy. However, I have found that by his action in identifying Dr. Ngobia to RN,
and indicating that it was after she had started at the College that the EDI training had been
implemented, the grievor did target her as the culprit responsible for the training which he
28
found so offensive. It is also clear that the grievor knew who she was as he had already seen
the University of Guelph video about her soon after she was hired.
127. The Employer argued that while it did not know just how widespread the reading of the
RN article may ultimately have been, it had a high possibility of reputational harm to the
College. Relying on the jurisprudence, it argued that it is not required to prove actual
reputational harm.
128. The Union maintained that the College had no evidence to demonstrate actual harm as a
result of the grievor’s actions, as there is no evidence of declining enrollment, people quitting,
or inquiries from oversight bodies. It argues that the Employer cannot get “hysterical” about an
employee’s views and ignore the principles of progressive discipline and just cause, and must
instead balance collective agreement rights and the wellbeing of the employee with the
interests of the employer.
129. In Wasaya Airways, cited above, the arbitrator addressed the issue of harm to an
employer’s reputation as follows at pp. 32-33:
Relevant for our purposes, arbitrator Luborsky cited Re Millhaven
Fibres, supra, in regard to the five-fold test for purposes of assessing
whether or not the grievor’s misconduct warranted discipline,
including discharge. As to the matter of harm to a public school
board’s reputation, he states, at para. 65:
Actual or potential reputational damage to a public school board as a result of
an employee’s off-duty misconduct need not be proven through direct evidence
of negative press scrutiny and/or public controversy or similar substantiation...
it is ‘the extent to which conduct has the potential for significant detrimental
impact on the employer’s business reputation or ability to operate its business
effectively’ [Badder Bus Service Ltd. v. Reavely, [2000] C.L.A.D. No. 648
(Etherington)) (emphasis added [in original]) that is a key consideration, as
opposed to whether the conduct is inherently immoral or illegal. The task of
the arbitrator is to assess, considering all of the evidence and the nature of the
employment, what a “fair-minded and well-informed member of the public or
relevant constituency may think about [the off-duty conduct]” ... Re British
Columbia (Workers’ Compensation Board and E.C.E.U. (Campbell) (1997),
64 L.A.C. (4th) 401 (Glass) p. 414].”
130. The arbitrator went on to state as follows that an employer is not required to prove that it
has actually suffered reputational harm, at p. 41:
In that regard, I agree that, as stated in Re Toronto District School Board, supra, at para. 65:
Actual or potential reputational damage to [an employer] as a result of an
employee’s off-duty misconduct need not be proven through direct evidence of
negative press scrutiny and/or public controversy or similar substantiation...it
29
is “the extent to which conduct has the potential for significant detrimental
impact on the employer’s business reputation or ability to operate its business
effectively” ...that is a key consideration...
131. In this case, there was negative press scrutiny, as Rebel News posted a YouTube video
castigating the College for its EDI training materials and denigrating one of its senior executives.
As outlined earlier, within one month of its being put online, the RN video had been viewed
13,517 times, and had generated considerable negative commentary about the College and its
EDI training materials. Thus, in this case, there is evidence of actual damage to the College’s
reputation.
132. Furthermore, Mr. Hipsz testified that the purpose of his going to RN was so that his view
of Sheridan’s EDI training would be made public, and would result in a backlash against the
College, which would lead to the withdrawal of the training program. He had chosen Rebel
Media for the express purpose of anonymously broadcasting his dissatisfaction with his
employer’s EDI training so that the College would be embarrassed into stopping such training.
133. While the jurisprudence is clear that it is unnecessary for an employer to prove actual
damage to reputation, by his actions, the grievor had created a circumstance for potential harm
to the College’s reputation. I am satisfied on the evidence before me in this case that based on
the comments posted regarding the RN piece, there was reputational harm done to Sheridan
College, which had been Mr. Hipsz’ intention all along. Equally troubling is that in the process
of seeking to denigrate his employer’s reputation, the grievor had also pointed RN in the
direction of the College’s Vice President, Inclusive Communities, a Black woman. That had led
to RN dredging up an uncomplimentary video regarding Dr. Ngobia, a video that the grievor
admits he was familiar with prior to the RN posting.
134. In all the circumstances I find that the grievor deliberately and recklessly breached his
duty of fidelity and loyalty to Sheridan College, which caused the College reputational harm.
The purpose of Mr. Hipsz’ action of going to Rebel Media with his story about the College’s EDI
training was to sabotage the Employer’s training efforts with its staff. As well, by his actions
Mr. Hipsz violated the College’s Code for Professionalism and Civility in that he did not act in
good faith with respect to the College’s interests and policies; he was unethical in his conduct
by surreptitiously going to the media; and he did not act with integrity towards his employer
when he knew that the College had a strategic plan that included a focus on equity, diversity
and inclusion, but he failed to first raise his concerns internally. I have therefore found that the
Employer had just cause to discipline the grievor for his actions.
135. I will deal briefly with the Union’s submission that the College’s investigation into the RN
video was flawed. In this regard, the Union asserted that at the beginning of the investigation
Ms. Metrakos had wondered if the grievor could be laid off if he was not actively working in the
Athletics Department at that time since the College was still operating virtually. While it is
apparent that layoff was considered as an option at the time, instead the College put the
30
grievor on paid leaves of absence while it conducted its investigation. As such, I find nothing
untoward in its action.
136. Another Union concern about the investigation was that no final investigation report was
provided to the grievor, and that Ms. Raguz had only prepared a draft investigation report. I
accept Ms. Raguz’ evidence that the College did not deem it necessary to finalize the report as
it essentially indicated the outcome of the investigation in the termination letter provided to
the grievor and Union.
***
137. Having found that the Employer has established just cause for discipline in this case, the
next two questions to consider are whether discharge was an excessive response in all the
circumstances of the case, and whether there are any mitigating factors that should be
considered should a reduction of the discipline be warranted. In light of the manner in which
the arguments were made, I will address both questions below.
138. The Union maintains that the Employer should have followed a course of progressive
discipline, as the grievor had no discipline on his record. It argues that a three-day suspension
would have been more appropriate, along with a personalized training program for the grievor.
The Employer maintains that based on the outcome of the investigation, and considering the
College’s policies, termination was the appropriate level of discipline in this instance.
139. For the reasons that follow, I have found that the Employer’s decision to discharge the
grievor was warranted, and that there are insufficient mitigating factors that could lead to a
reduction in that level of discipline.
140. The factors an arbitrator should consider when determining whether an employer’s
decision to terminate an employee for just cause was reasonable was outlined in the Steel
Equipment Co. decision, cited above, at paras. 2 and 3, where Arbitrator Reville wrote as
follows:
2. Arbitration cases on this point are legion and almost invariably turn on their particular and
peculiar facts. It has been held, however, that where an arbitration board has the power to
mitigate the penalty imposed on a grievor, the board should take into consideration in arriving
at its decision the following factors:
1. The previous good record of the grievor — Re United Steelworkers of America, Local
5297, and Frontenac Floor & Wall Tile Ltd. (1957), 8 L.A.C. 105.
2. The long service of the grievor — Re U.A.W., Local 28, and C.C.M. Co. (1954), 5 L.A.C.
1883.
3. Whether or not the offence was an isolated incident in the employment history of
the grievor — Re Amalgamated Ass'n of Street, Electric Railway and Motor Coach
31
Employees of America and Sandwich, Windsor & Amherstburg Railway Co. (1951), 2
L.A.C. 684.
4. Provocation — Re United Brotherhood of Carpenters, Local 2537, and KVP Co. Ltd.
(1962), 12 L.A.C. 386.
5. Whether the offence was committed on the spur of the moment as a result of a
momentary aberration, due to strong emotional impulses, or whether the offence
was premeditated — Re U.A.W., Local 112, and DeHavilland Aircraft of Canada Ltd.,
being an award of Professor Bora Laskin dated March 13, 1959 (unreported).
6. Whether the penalty imposed has created a special economic hardship for the
grievor in the light of his particular circumstances — Re U.A.W., Local 127, and
Ontario Steel Products Ltd. (1962), 13 L.A.C. 197.
7. Evidence that the company rules of conduct, either unwritten or posted, have not
been uniformly enforced, thus constituting a form of discrimination — Re Retail,
Wholesale Department Store Union, Local 127, and Dominion Stores Ltd. (1961), 12
L.A.C. 164.
8. Circumstances negativing intent, e.g., likelihood that the grievor misunderstood the
nature or intent of an order given to him, and as a result disobeyed it — Re United
Electrical Workers, Local 524, and Canadian General Electric Co. (1957), 8 L.A.C. 132.
9. The seriousness of the offence in terms of company policy and company obligations
— Re Mine, Mill and Smelter Workers, Local 598, and Falconbridge Nickel Mines Ltd.
(1956), 7 L.A.C. 130.
10. Any other circumstances which the board should properly take into consideration,
e.g., (a) failure of the grievor to apologize and settle the matter after being given an
opportunity to do so — Re U.A.W., Local 456, and Mueller Ltd. (1958), 8 L.A.C. 144;
(b) where a grievor was discharged for improper driving of company equipment and
the company, for the first time, issued rules governing the conduct of drivers after
the discharge, this was held to be a mitigating circumstance — Re Int'l Brotherhood
of Teamsters and Riverside Construction Co. (1961), 12 L.A.C. 145; (c) failure of the
company to permit the grievor to explain or deny the alleged offence — Re Int'l
Brotherhood of Teamsters, Local 979, and Leamington Transport (Western) Ltd.
(1961), 12 L.A.C. 147.
3. The board does not wish it to be understood that the above catalogue of circumstances which
it believes the board should take into consideration in determining whether disciplinary action
taken by the company should be mitigated and varied, is either exhaustive or conclusive. Every
case must be determined on its own merits and every case is different, bringing to light in its
evidence differing considerations which a board of arbitration must consider.
141. Not all of the factors outlined above are relevant to the case before me, so only those
applicable will be reviewed. I have considered that in the grievor’s favour are that he was a
32
relatively long service employee having worked 12 or 13 years at the College, that he had no
disciplinary record, and that his leak to the media was the first time that this had occurred.
142. While Mr. Hipsz did not have a disciplinary record, he had received a non-disciplinary
Expectations Memo five months before he contacted Rebel Media. That Memo, as has been
outlined earlier, was about the grievor’s inappropriate use of Twitter, and had clearly put the
grievor on notice that the College values its reputation, and that it expects its employees to
follow the Code for Professionalism and Civility both inside and outside the workplace. As such,
the grievor had been warned about airing views that are not generally socially acceptable and
associating those views with his employment at Sheridan College.
143. The Union argued that since the grievor had shut down his Twitter account following that
Memo, he had demonstrated that he could learn from his mistakes. However, in that Memo
the grievor was advised to exercise good judgment in the future, but he clearly did not do so
five months later in the circumstances that led to his discharge. As well, his whole purpose in
going to Rebel Media in February 2021 was to shame the College and, through public
disapprobation, to cause it to withdraw its EDI training. In my view that does not suggest that
Mr. Hipsz had learned that, as an employee, he had a responsibility to maintain his employer’s
good reputation, and at the very least, not to besmirch it.
144. The Union also argued that the Employer should have applied progressive discipline in this
case because the issue was not a serious offence. I will first address the issue of the
seriousness of the grievor’s actions.
145. Despite the Union’s argument that the grievor’s offence had not been serious as the
training materials were not confidential, I have found that this was a serious offence as the
grievor breached his duty to the College to act with loyalty and fidelity. The issue is not simply
whether the EDI training materials were confidential: it is that the grievor wanted the College
to be publicly denigrated, and for there to be such a backlash that it would be shamed into
withdrawing its EDI training for staff. This, despite Mr. Hipsz’ knowledge that EDI generally was
a part of the College’s Strategic Plan, and that reference to it had been incorporated into the
Code for Professionalism and Civility.
146. Furthermore, the grievor pointed RN in the direction of Dr. Ngobia, a Black woman, and
must ultimately bear responsibility for how the RN video put her reputation in issue as well. His
action in that regard caused Dr. Ngobia to feel insecure about her own safety and that of her
family because of the particular media outlet with which the grievor had chosen to air his
dislike of the concept of “White privilege”.
147. Finally, the grievor knew from the beginning that what he was doing was so seriously
wrong that he could be fired, and that was the reason he told RN that he only wanted to be
identified as a former instructor because he had “mouths to feed”. I am satisfied that the
grievor knew, even before he sent his first message to RN, that what he was doing was serious
misconduct which could lead to dismissal, but he went ahead anyway.
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148. I return now to the issue of progressive discipline. In the Ocean Paving Ltd. decision, cited
above, a grievor had not been recalled after layoff because of concerns about his poor
performance and horseplay at the workplace. While noting that the issue was not one of
assessing just cause for the failure to recall, the arbitrator wrote as follows regarding
progressive discipline:
80. How, if at all, are the requirements to warn and use progressive discipline relevant in the
case before me in this arbitration? I think the answer to the question becomes clear if one
examines the fundamental reasons for these requirements. The obligation to warn and the
concept of progressive discipline are supported by two basic principles, one relating to fairness
in the workplace and the other relating to the purposes of discipline in the workplace. The first
principle is that it will generally be unfair to impose discipline without warning. In other words,
the employee should, as a general rule, be given some indication that the conduct complained
of is wrong or that the job performance is unsatisfactory in order to have an opportunity to
correct the behaviour or the performance. The second principle relates more directly to the
severity of the penalty imposed. It will generally be unjust and unreasonable to move to a more
serious penalty before a less serious one has been used in an effort to correct the behaviour of
the employee.
149. There is no dispute that progressive discipline is the de facto appropriate course for most
employee misconduct in the workplace. However, as arbitrators often note, each case turns on
its own facts, and in instances of serious misconduct, and where the facts support it, there may
be no requirement for an employer to follow progressive discipline. Examples of serious
misconduct may include theft, assault, sexual harassment, sexual assault, patient/resident
abuse, racial harassment, unsafe work practices, serious breaches of some types of workplace
policies, or as in this case, a significant breach of an employee’s duty of loyalty and fidelity to
their employer by leaking information to the media for the express purpose of besmirching the
reputation of the employer.
150. In this case, the grievor had been put on notice, albeit through a non-disciplinary
Expectations Memo, of what his employer expected of him five months before the incident that
led to his termination. He nonetheless went ahead with the express intent of publicly
denigrating his employer in order to make the College withdraw its EDI training. For reasons
already outlined fully earlier, I have found that the grievor engaged in serious misconduct.
151. The Union argued that the Employer had wanted to get rid of the grievor as soon as it
found out about the Rebel News piece, even before it had conducted the investigation.
According to the Union, the College had no intention of following progressive discipline in this
instance. On the evidence before me it is clear that whatever Ms. Metrakos discussed
regarding laying off the grievor at the outset, the College determined that it would conduct a
full investigation: it put the grievor on a paid leave of absence for weeks while it conducted that
investigation; it held three investigative meetings with Mr. Hipsz; it tried to ascertain whether
there were any facts missing or witnesses it should speak to; and based on Ms. Raguz’ findings,
the senior management team then discussed possible disciplinary options. It was only
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following discussions about the outcome of the investigation that the College determined that
dismissal was appropriate.
152. Although the Union conceded that the grievor had acted in a premeditated manner, it
argued that the grievor had been provoked into taking action. In my view this was not a spur of
the moment action taken by the grievor upon provocation. Mr. Hipsz’ anger about the content
of the EDI training had been brewing since around October 2020 after he had completed the
on-line training modules, and was further fueled when he had to participate in the in-person
training module in February 2021. He had heard about the Coco Cola saga, and he decided on
what he would do. He did not go to anyone within the College, nor to the Union or the HRTO to
raise his concerns. He knowingly, with a full understanding of the type of media outlet that
Rebel Media is, chose it as the one to contact because he did not believe that any other
mainstream media would support his position.
153. The College argued that since the grievor has shown no remorse, has not apologized or
shown any contrition, there is no basis for an arbitrator to reinstate him to employment.
154. In the Wasaya Airways decision, cited above, a pilot had posted on his Facebook page
disparaging comments about Indigenous passengers. In that case, the owners of the airline
were Indigenous, and since it operated in northern Ontario, the majority of its customers were
Indigenous people. Having learned about the Facebook post, and that others had seen it and
made further negative comments bolstering those of the pilot, the employer had terminated
his employment. It is noteworthy that within one month of the posting, the pilot had removed
his post, and had written a long and serious letter of apology to the employer. In that case, in
light of the apology and because the employer had treated another employee who had also
made a negative comment about Indigenous people in the same Facebook post, the arbitrator
substituted a lengthy suspension for the termination, but did not reinstate the grievor.
155. While in this case Mr. Hipsz testified that he had no opportunity to apologize to anyone
prior to his termination, that is not borne out by the evidence. The Employer held three
meetings with Mr. Hipsz before the termination meeting, and at no time did the grievor say he
was sorry that he had sought to publicly embarrass the College and had caused Dr. Ngobia to be
attacked by RN. He could have apologized to Mr. Flack and Ms. Raguz or asked them to pass on
his apologies to Dr. Ngobia and/or to anyone in the College hierarchy, but he did not do so.
156. As the Employer noted in its submissions, the grievor also had the opportunity to show
regret for his actions when he testified at this arbitration, but he did not do that either. I
therefore have no evidence that the grievor is sorry for what he did, and consequently no
confidence that Mr. Hipsz has learned anything from this serious incident. I agree with the
College that the grievor’s stance before, and continuing at this arbitration, shows that his views
remain strong and there is little assurance that he would comport himself much differently in
the future were he to be reinstated to employment.
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157. Finally, the Union argued that the discharge has caused the grievor particular economic
hardship. The grievor had hip surgery in August 2021, which had been scheduled before the
termination of his employment, and which was apparently known to Mr. Flack. As a result of
being dismissed the grievor lost his extended health benefits, which caused an inability to get
physiotherapy following the surgery. As well, the grievor testified that he had difficulty finding
other work in the academic or athletic world. While he worked at construction and
warehousing jobs, it was difficult to support himself and his daughter. Although there was no
medical support for any of the grievor’s assertions, he maintained that the dismissal also
caused his sleep and mental health to be affected.
158. Unfortunately, there is nothing extraordinary about the effect of the termination on Mr.
Hipsz and his family. The consequences of losing one’s employment and benefits are generally
painful for anyone in the grievor’s situation, as the grievor himself knew they could be when he
embarked on his mission of contacting Rebel News.
159. The situation before me is similar in some respects to the fact situation addressed in the
Interior Roads decision, cited above. In that case, in upholding the employee’s discharge, the
arbitrator wrote as follows at p. 192:
The grievor engaged in serious misconduct when he left an
anonymous telephone message for the complainant that contained
disparaging and essentially untrue allegations about his Employer
and a fellow employee. This misconduct breached the duty of
loyalty and fidelity owed by Mr. Glen to his Employer. Mr. Glen’s
testimony at this hearing makes it all too clear that he does not
understand or refuses to accept that he did anything wrong when he
left the message he did. He is not remorseful nor has he acknowledged
the underhanded nature of his attack on his Employer and his
fellow employee. The decision to terminate the grievor was not
excessive in all the circumstances.
160. I have not found the Trillium Health Partners decision, cited above, of assistance as the
facts in that case were quite different as the employee had taken a health and safety concern
to the media early in the pandemic. In any event, it is noteworthy that the arbitrator upheld
the employer’s discipline of a five-day suspension.
161. Similarly, the Air Canada decision, cited above, was not helpful as the reason that the
arbitrator reduced a termination to a three-day suspension was based on the facts before him.
In that case a military passenger had been rude and aggressive with a customer service
representative (CSR); she had remained calm and acted professionally; but she later
complained to the passenger’s senior officer about his behaviour. Air Canada terminated her
employment for contacting the senior officer as the Department of National Defence was a big
client of the airline. However, the arbitrator found that based on the passenger’s manner when
he testified, he had very likely been rude to the CSR and had upset her. He also found that the
employer had not suffered any harm to its reputation or loss of income as a result of the CSR
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contacting the DND, which had not been concerned about her having reached out. As such, the
arbitrator found that the employer had over-reacted by terminating the grievor’s employment
and instead gave her a three-day suspension as he was of the view that she should have spoken
to her employer before contacting the superior DND officer. The facts before me need not be
repeated again. As I had noted earlier, each case must be decided on its own facts, and based
on the facts of the Air Canada decision, it is entirely distinguishable.
162. In the British Columbia (Ministry of Public Safety and Solicitor General) decision, cited
above, a grievor had leaked sensitive information to the media about health and safety
concerns in a provincial correctional facility, and once found out, he had apologized repeatedly
for his actions. It is noteworthy that initially the arbitrator reinstated the grievor and remitted
the issue of remedy back to the parties with the suggestion that a suspension and demotion
may be appropriate. However, when the parties were unable to agree on the penalty, in a
second decision issued by Arbitrator Steeves, cited above, while he found that discharge was
too severe a penalty, he did not reinstate the grievor to his employment as he found that there
had been a serious lack of honesty, and the trust relationship between the employer and
grievor had been irrevocably broken. In the case before me Mr. Hipsz has shown no remorse at
any point about what he did, and only to a limited extent did he say he was sorry about how RN
treated Dr. Ngobia. However, he took no responsibility for his role in pointing RN in her
direction.
163. In summary, based on the evidence, Mr. Hipsz did not try to ascertain from any reliable
source whether his view that the EDI training material or exercise was in fact a breach of the
Human Rights Code before he went to Rebel News with his story. He made no effort to try to
have his concerns addressed within the College, or through his Union. Mr. Hipsz does not
understand or refuses to accept that he did anything wrong by going to the media as he has
consistently maintained that he was seeking “transparency”, a term he never defined in the
context of this case, but which apparently for him meant shaming his employer into stopping its
EDI training efforts with its staff, just as Coca Cola had done in the United States. While he
claimed he wanted to start a conversation, that was apparently a conversation only with those
who shared his views about White privilege on Rebel News, but not within the Sheridan College
community.
164. I have found that the grievor engaged in serious misconduct and a breach of his duty of
fidelity and loyalty to his employer when he purposefully contacted Rebel News and provided it
with slides from the College’s EDI training, and pointed the news outlet in the direction of Dr.
Ngobia, knowing the type and tenor of reportage that would result. He knew from the outset
that his actions may lead to his dismissal, but he went ahead anyway. He showed reckless
disregard for the reputation of his employer, and whether knowingly or not, for Dr. Ngobia’s
reputation. He has irrevocably breached the trust relationship that is fundamental to the
employment relationship.
165. Neither before this hearing, nor in the course of his testimony did the grievor show any
remorse for his actions, and he continued to maintain that his pursuit of “transparency”
37
trumped any wrongdoing on his part. While Mr. Hipsz made a weak attempt to show remorse
about RN’s negative treatment of Dr. Ngobia, he had in fact never raised his apparent concern
in that regard with Rebel News, nor at any time during the investigation had he asked
management to pass on his apologies to Dr. Ngobia. Overall, he remained unrepentant, with
his only refrain being that he could have done things differently. On the evidence before me
there is nothing to suggest that the grievor would act much differently if faced with a similar
situation again. I therefore find that the College’s decision to terminate Mr. Hipsz’ employment
was not excessive in all the circumstances.
***
166. For all of the reasons outlined above, the discharge is upheld, and the grievance is hereby
dismissed.
Dated this 13th day of December, 2022.
“Gail Misra”
Gail Misra, Arbitrator