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HomeMy WebLinkAboutP-2010-0702.Lee et al.11-07-21 DecisionPublic Service Commission des Grievance Board griefs de la fonction publique Bureau 600 Suite 600 180, rue Dundas Ouest 180 Dundas St. West Toronto (Ontario) M5G 1Z8 Toronto, Ontario M5G 1Z8 7pO   Tel. (416) 326-1388 7pOpF   Fax (416) 326-1396 P-2010-0702, P-2010-1055 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Complainants Mike Lee et al and Jim Allen - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE.DWKOHHQ*2¶1HLOVice-Chair FOR THE COMPLAINANTSMike Lee, Jim Allen and Al White FOR THE EMPLOYERJennifer Richards Ministry of Government Services Labour Practice Group Counsel HEARING May 26, 2011. - 2 - Decision [1] This decision deals with preliminary objections raised by the employer in regards to the complaints of a group of Operational Managers at Elgin Middlesex Detention Centre (EMDC). The complaints relate to a blog said to be associated with Correctional Officers who are represented by the Ontario Public Service Employees Union (OPSEU), Local 108. The allegations are in essence that the employer has failed to provide a workplace free from harassment and discrimination by failing to take sufficient action in regards to the blog, which is said to have contained offensive and defamatory material directed at managers, in breach of several Ministry policies and the Occupational Health and Safety Act as well as to have created a poisoned work environment. [2] The employer takes the position that the complaints, as grievances are now called under should be dismissed without Regulation 378/07 of the Public Service of Ontario Act, further hearing, as they are untimely and do not make out a prima facie casefor a breach of the terms and conditions of the DSSOLFDQWV¶HPSOR\PHQWE\WKHHPSOR\HU Factual/procedural background [3] An individual complaint filed by Operational Manager James Allen and a group complaint filed by several other Operational Managers were listed for hearing together as they deal with the same subject matter and are very similar in wording and remedial request, in accordance with s. 13(1) of Regulation 378/07. [4] For the purpose of preliminary motions such as those raised by the employer, the facts asserted in the complaints are assumed true and provable. Findings concerning any disputed facts would only be made on evidence at a hearing on the merits of the matter. Many of the facts relevant to this case are in fact not in dispute and a number of documents were entered into evidence on consent. What follows is an overview of the IDFWVQHFHVVDU\WRGHDOZLWKWKHHPSOR\HU¶VSUHOLPLQDU\REMHFWLRQV [5] Leading up to the signing of the most recent collective agreement between the employer and OPSEU, Correctional Officers, who are supervised by the Operational Managers, engaged in various forms of organized efforts to make their collective strength felt and to support their position in collective bargaining. In May, 2009, a group of Operational - 3 - Managers wrote to the Superintendent describing some of that conduct as including harassment of the Operational Managers and senior management in the form of graffiti DQGYHUEDODEXVH7KHOHWWHUIXUWKHULQGLFDWHVWKDWZKDWLVUHIHUUHGWRDV³WKHFRQVWDQW XQLRQLVVXHV´GLGQRWHQGZLWKWKHVLJQLQJRIWKHFROOHFWLYHDJUHHPHQWDQGFRQWLQXHGWR affect the working relationship between the managers and the staff, but does not mention the blog here in issue. [6] At some point, individuals thought to be associated with OPSEU Local 108, the local encompassing the Correctional Officers at EMDC, created a blog available to the public on the internet. The exact date when this occurred is not in evidence, but by August 28, 2009 it had come to the attention of at least one of the Operational Managers who wrote an occurrence report detailing remarks contained in the blog that were critical of Operational Managers and management in general. When no response was received from senior management, follow-up letters were sent to the Superintendent on October 2 and November 20, 2009. These letters acknowledged that the Superintendent had said that the blog had been shut down, but stated that this did not address the complaints in terms of the offensive material that had been available to the public on the website for a considerable period of time. In the November letter, it is noted that the blog is back up and running. [7] In February and March 2010 a group of Operational Managers contacted the Deputy Superintendent by e-mail further quoting from the blog, pointing out remarks that the Operational Managers considered to be slanderous of management at all levels and stating that the Ministry was condoning the blog by inaction. On February 22, 2010 the Operational Managers met with Steven Small, Assistant Deputy Minister, who said that the blog had gone "underground", apparently meaning that it was now password- protected. According to the Operational Managers, he also promised a restoration team for the institution, which has not yet been provided. Mr. Small apparently also met with senior management and representatives of the union, a meeting to which the Operational Managers were not privy. The Operational Managers allege that the letter was ignored and that the blog continued with negative content accessible at least to a large proportion of the employees working in the institution and likely beyond, continuing to poison their work environment. - 4 - [8] On February 24, 2010, the then acting Superintendent wrote to Mr. Allen saying that the institution had no control over the content of the union blog and stating that the material that Mr. Allen had provided him did not appear to warrant any further investigation, but indicating that if any of the blog content did violate policy he would review it and take action if necessary. [9] On February 26, 2010 Mr. Steven Small, Assistant Deputy Minister, wrote to the executive members of the union local, as well DVWKH%ORJ:ULWHUV´H[SUHVVLQJKLVJUDYH concerns about the highly inappropriate features and comments recently posted on the blog, as well as acknowledging that OPSEU itself had requested that any comments or posts that might be perceived as attacks on individuals be removed. In the view of the group of Operational Managers, nothing changed after that, and these grievances IROORZHG0U$OOHQ¶VRQ0DUFKDQGWKHJURXSRI2SHUDWLRQDO0DQDJHUV¶RQ March 5, 2010. Excerpts - Regulation [10] Relevant statutory provisions are as follows: From Regulation 378/07 under The Public Service Of Ontario Act - 4. (1) Subject to subsection (2), a public servant who is aggrieved about a working condition or about a term of his or her employment may file a complaint about the working condition or the term of employment with the Public Service Grievance Board, « Filing a Complaint Notice of proposal to file a complaint 8. (1) A person who proposes to file a complaint shall give notice of the proposal to the following person or entity: 1. A complainant who, at the material time, worked in a ministry shall give the notice to his or her deputy minister. « (4) The notice must be given within the following period: « 3. For a complaint about a working condition or a term of employment, within 14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint. O. Reg. 378/07, s. 8 (4). - 5 - - from Regulation 977, under the Public Service Act,now superseded 54. The Board or a Classification Rating committee may, of its own motion, (a) abridge the procedure set out in this Part and hear the grievance at any time under section 48: or (b) extend the time limits specified in this Part, RO 1980, Reg, 881, s. 61. Submissions and Conclusions >@7KHHPSOR\HU¶VPRWLRQKDVWZRSDUWVZKLFKZLOOEHGHDOWZLWKLQWXUQ)LUVWO\LWLVWKH employer's position that the grievances are untimely and should be dismissed. In the HPSOR\HU¶VVXEPLVVLRQWKH2SHUDWLRQDO0anagers were clearly aware of the union blog by the fall of 2009 and did not grieve until 2010, in breach of the14 day time lines set out in Regulation 378/07 under The Public Service Of Ontario Act. [12] Further, counsel for the employer argues that the timelines in section 8 (1) of Regulation 378/07 are mandatory timelines that are not able to be extended by the Board. Counsel refers to Section 54 of the former regulation 977, no longer in effect, which provided the Board with jurisdiction to extend time limits. Counsel argues that when the new regulation 378/07 was implemented, it contained no similar provision, and thus any jurisdiction the Board had to extend time limits is no longer applicable. >@,QVXSSRUWRIWKHHPSOR\HU¶VDUJXPHQWVRQWLPHOLQHVVFRXQVHOUHOLHVRQWKHIROORZLQJ case law: Daniel Beauchamp 2010 Can LII 6691 and 11287, (ON L.R.B.), Service Employees International Union, Local 204 v. Leisureworld Nursing Homes Ltd., [1997] O.J. No. 1469, 99 O.A.C. (Divisional Court), affirmed by the Court of Appeal with brief reasons reported at [1997] O.J. No. 4815, 75 A.C.W.S. (3d) 854 (Ont. C. A.) and Kris Persad v. TTC et. al., 2009 HRTO 325 (Can LII). In the Daniel Beauchamp decisions, the Ontario Labour Relations Board (OLRB) found that in dealing with its jurisdiction over ,there was no language allowing appeals under theOccupational Health and Safety Act for the extension of the timelines. In the result, despite sympathetic facts, which included a one day delay caused by solicitor inadvertence, the appeal was dismissed as untimely. In doing so, the OLRB also found that its broad power to control its own procedure did not give it jurisdiction to amend the timelines set by statute. [14] In the Divisional Court's decision in Leisureworld, affirmed on appeal, cited above, the Court found it to be unambiguous that when words relating to the power to extend time - 6 - limits in provisions of collective agreements related to arbitration procedures were dropped from the Labour Relations Act,arbitrators lost jurisdiction to grant relief from time limits for referral to arbitration, as opposed to steps within the grievance procedure leading to the referral to arbitration. Counsel argues that the amendment to the regulation resulting in the absence of the provisions providing for the extension of time OLPLWVLQ5HJXODWLRQ - 7 - when they first heard about the blog, which I am asked to infer was around the same time that Mr. Allen became aware of it in the summer of 2009. [19] As to the issue of whether the matter is a continuing grievance, counsel says that despite the fact that the grievance refers to the idea that the employer was continuing to fail to take appropriate action, there are no particulars to show a continuing breach. [20] The second part of the employer's motion relates to the submission that the union blog FDQQRWDPRXQWWRDEUHDFKRIWKHWHUPVDQGFRQGLWLRQVRIWKH2SHUDWLRQDO0DQDJHU¶V employment. Stressing that it was not an employer blog and that the employer did not in any way control its content or comments, nor promote or agree with anything there, counsel argues that the employer never failed to provide a workplace free of harassment, nor did the employer create a poisoned work environment. The blog was created and broadcast by the union and is therefore the responsibility of the union. Essentially the employer's position is that any recourse should be against OPSEU, who is not a party to this matter, rather than the employer. [21] Moreover, the employer made it clear that it did not agree with the contents and wrote letters to that effect and did take steps to deal with the negative effects of the union blog. For instance, the Assistant Deputy Minister wrote to the union executive and the contributors to the blog and the Superintendent of the institution had conversations with the local executive and co-chairs of the provincial Management and Employee Relations Committee [MERC]. In any event, counsel submits that it is not the role of this board to go back in time and determine how the employer could have or should have dealt with the bargaining agent. >@&RXQVHOUHOLHVRQSDUDJUDSKRIWKH%RDUG¶VGHFLVLRQLQAllen et. al. v. Ontario (Ministry Of Community Safety And Correctional Services), 2009 CanLII 43639 (ON PSGB), 98 C.L.A.S. 181 for its formulation of what is required to make out a prima facie case, i.e. a viable case with three elements: an existing term or condition of employment, a breach of that term or condition of employment and a connection between the alleged breach and some remedy within the board's jurisdiction. [23] Counsel submits that the Operational Managers have not demonstrated any provision that was violated by the employer. Although the comments on the blog were - 8 - inappropriate, they are not contraventions of the Public Service Of Ontario Act or any RWKHUWHUPDQGFRQGLWLRQRIWKHHPSOR\HHRIWKH2SHUDWLRQDO0DQDJHUV¶HPSOR\PHQWLQ WKHHPSOR\HU¶VYLHZ6KHQRWHVWKDWDWWKHWLPHRIWKHFRPSODLQWWKH:RUNSODFH Discrimination and Harassment Prevention policy (WDHP) did not contain a provision for complaints that did not refer to grounds such as race, gender or disability. Further, although the employer acknowledges the concerns and submits that they responded appropriately in the circumstances, counsel submits that it is unclear what remedy could be given. Noting that the blog has been password-protected since approximately March 2010, counsel says that only OPSEU members should be accessing the site and that it is no longer fully accessible to the public. The employer asserts that the complainants have not identified anything that the employer could have done that they failed to do. [24] Counsel for the employer asserts that it is not a proper basis for complaint to say that the VLWXDWLRQZDVKXUWIXOVWUHVVIXORULQDSSURSULDWH7KH%RDUG¶VMXULVGLFWLRQLVURRWHGLQ violations of terms and conditions of employment. The broad statement that comments does not amount to a prima on the blog violate the Occupational Health and Safety Act facie case, in counsel's submission. Counsel for the employer states that the Board has no jurisdiction to award anything against OPSEU, such as an apology or dismantling of the blog. As to the remedies claimed of reclassification and compensating time, the employer reserved its rights to argue further on those issues if necessary. [25] For their part, the Operational Managers argue that both the WDHP policy and the Occupational Health and Safety Act have been violated. They refer to the March 25, 1998 version of the WDHP policy which refers to problems of harassment that are not based on grounds that can be found in the Human Rights Code as well as the 2001 JXLGHZLWKZKLFKWKH\ZHUHIXUQLVKHGWRWKHHIIHFWWKDWLWLVPDQDJHPHQW¶VUROHWRHQVXUH a healthy workplace. They submit that the anonymity of many of the comments on the blog makes the situation more dangerous, because it is not known who is making the remarks which are in breach of policy and statute, and when one is or is not working with the authors of the offensive material. >@7KH2SHUDWLRQDO0DQDJHUVDUJXHIURPWKHVWDWHPHQWLQ0U6PDOO¶VPHPRWRWKHORFDO union and the bloggers that "further breaches" would not be tolerated that the employer has already acknowledged that the blog does violate the policies in question, and contributes to a work environment which is poisoned. They take the position that it does - 9 - not matter that the bargaining unit is the source; it remains a breach of the Operational 0DQDJHUV WHUPVDQGFRQGLWLRQVRIHPSOR\PHQW,WLVWKH2SHUDWLRQDO0DQDJHUV¶SRVLWLRQ that by doing nothing, the Ministry is condoning the remarks on the blog. It is noted that the previous Superintendent and the union had agreed that there would be zero tolerance for such breaches of policy, and that all necessary steps up to and including dismissal would be taken. > - 10 - The fact that the blog was still up, still allegedly generating material which poisoned their work environment, at the time the complainants filed their complaint, is sufficient to make these grievances timely. [30] In these circumstances, it is not necessary to deal with the employer's argument that the Board has no jurisdiction to extend time limits, because I do not find that the time limits were breached. If the complaints are ultimately successful, the employer may make submissions about how far back in time any remedy that would be granted can extend. However this does not determine whether the complaints are timely. [31] Employer counsel made several remarks about particulars, referring to the details of the complaint, suggesting that there were insufficient particulars of a continuing situation. It is true that the complaint is not particularized in detail. Nonetheless, the basic proposition that the blog, which is the central focus of the complaints, was still operating, and that the Ministry was condoning it by inaction, is clearly stated. Further, there is no suggestion that the employer requested further particulars and that they were not forthcoming. In the circumstances, any lack of particularity is something that can be dealt with by a request from the employer and direction from the Board if necessary, but it is not enough to change the fact that the complaint relates to an allegedly continuing situation. Should the complaint be dismissed for failing to set out a prima facie case? [32] As for the portion of the motion relating to whether a prima facie case has been described by the Operational Managers, it is convenient to discuss the matter by looking at what terms and conditions of employment the complainants identify, what breach they allege, and what remedies they request. If the combination of those three elements makes up a viable complaint, the matter should not be dismissed at this stage. On a preliminary motion such as this, the issue is not whether the complainants will surely succeed, but whether they have an arguable case. The difficulty of the issues raised or the strength of the employer's proposed defense are not the criteria. Rather, the v. Carey Canada Inc., [1990] 2 standard set by the Supreme Court of Canada in Hunt S.C.R. 959, for dismissing a matter on a preliminary motion such as this is whether it is plain and obvious that the complaint cannot succeed or raises no reasonable or - 11 - arguable case for a remedy. The novelty of a complaint or the difficulty of the issues involved was held not to be sufficient reason to dismiss on a preliminary basis. [33] The sources of terms and conditions of employment identified by the Operational Managers include the WDHP policy and an accompanying guide entitled Workplace 'LVFULPLQDWLRQDQG+DUDVVPHQW3UHYHQWLRQLQWKH236±D0DQDJHU¶V*XLGH, a 2001 SXEOLFDWLRQRIWKHHPSOR\HU¶V0DQDJHPHQWBoard Secretariat. It notes that managers are accountable and have the authority to ensure that the workplace is free from discrimination and harassment no matter what the source or who is involved, as well as working in a proactive way to create a positive healthy working environment. Although the guide acknowledges that the WDHP operating policy mirrors the legal framework of The Human Rights Code, it also contains a section dealing with violations which fall outside that framework. This section gives an example of employees who continually make negative public comments about the effectiveness of the work unit and says that a manager in that situation has a responsibility for effectively resolving these issues and restoring the workplace to health. This is somewhat analogous to what this complaint represents - middle managers alleging that senior management is responsible to restore the workplace to health after the publication of the blog which they say poisoned their work environment. [34] The following quote from the guide for managers tends to support the Operational 0DQDJHUV¶VXEPLVVLRQWKDWWKH\KDGUHDVRQWREHOLHYHZHOOEHIRUHWKHPRVWUHFHQW amendments to the WDHP which apparently make this explicit, that it is management's responsibility to deal with harassment whether or not it is based on grounds which appear in The Human Rights Code. The following instructions to managers appear at page 15: Determine whether the WDHP Operating Policy or another policy framework covers the issue. Generally, this means assessing whether behaviour exhibited by employees is covered by the definitions of discrimination and harassment and whether it is related to DSURKLELWHGJURXQG7KHNH\TXHVWLRQWRDVNLV³'RHVWKHEHKDYLRXUWDNHDZD\IURPD SRVLWLYHDQGUHVSHFWIXOZRUNHQYLURQPHQW´"$SURKLELWHGJURXQGGRHVQRWQHHGWREH the only reason for the issue or conflict, but it must play some part for a resolution to occur within the framework of the WDHP Operating Policy. However, you must act to resolve the issue even if it is not related to the policy. In these cases, other OPS policies and procedures may provide guidance (e.g. Staff Relations Policy). Contact your WDHP specialist for more information. (pg. 15) - 12 - And further on in the guide: The organization has the right to insist that all employees treat each other with dignity and respect. (pg. 29) [35] It is notable as well that the version of the WDHP policy dated March 25, 1998, most recently revised in 2007, which predates these complaints, says in a footnote at page 12: Management must not condone any kind of discrimination and harassment and must also take appropriate and timely action even if the discrimination or harassment falls outside of the application and scope of this policy. Processes used to address complaints under the WDHP policy may also be used to resolve disputes falling outside of the scope of this policy, for example, personal harassment. [36] The complainants also rely on the Occupational Health and Safety Act, although they were not specific about which portions they were relying on. I note that Bill 168 which added provisions in respect of personal harassment had not come into force at the time RIWKHFRPSODLQWV0HQWLRQZDVDOVRPDGHRIWKHHPSOR\HU¶V6WDWHPHQWRI(WKLFDO Principles, but specific provisions of that policy were not referenced. [37] The employer did not argue that the above policies did not constitute part of the terms and conditions of employment of the complainants. In my view, the complainants have an arguable case that the policy standards they are to uphold as managers also apply to them, and form part of their terms and conditions of employment. This is quite apart from the any relevant sections of the Occupational Health and Safety Act, or any other provisions which may form a term or condition of their employment, on which it is not necessary to comment for the purposes of this preliminary motion. >@7XUQLQJWRZKDWEUHDFKLVDOOHJHGWKHFRPSODLQDQW¶VFDVHLVEDVHGRQLQDFWLRQ,Q essence, the Operational Managers are arguing that their right to a healthy workplace and freedom from personal harassment was infringed when senior management failed to effectively address the negative daily work situation created by some of the blog content. Although I agree with employer counsel that this would be a stronger element of the FRPSODLQDQW¶VFDVHLIWKH\KDGVSHFLILHGZKDWLWLVWKDWXSSHUPDQDJHPHQWFRXOGKDYH done which it failed to do, I do not agree that the complaints have not made out an arguable case in this respect. It is, again, in my view, a question of lack of particulars, - 13 - rather than the absence of a critical element of a viable case. In this respect, I note that LWLVQRWWKHHPSOR\HU¶VSRVLWLRQWKDWWKH\KDGQRREOLJDWLRQWRWDNHDFWLRQ,WLVPRUHWKDW they say they did take action. However, it is clear that the complainants were not privy to all the actions referred to, and more to the point here, it is their central allegation that ZKDWHYHUVHQLRUPDQDJHPHQW¶VDFWLRQVZHUHWhey did not protect them from what they consider the poisoned work environment caused by the content of the blog which they found to be undermining and defamatory. As well, the complainants argue that Mr. 6PDOO¶VPHPRWRWKHXQLRQDPRXQWVWRDQDGPLVVLRQWKDWWKHEORJFUHDWHGDSRLVRQHG ZRUNHQYLURQPHQWZKLFKKDGQRWEHHQUHPHGLHG7KHHPSOR\HU¶VYLHZWKDWWKHIDFWWKDW LWGLGWDNHDFWLRQPHDQVWKH\GLGQRWEUHDFKWKHFRPSODLQDQWV¶ULJKWVHYHQLIWKHLUDFWLRQV ZHUHQRWWRWDOO\HIIHFWLYHLQWKHFRPSODLQDQWV¶H\HVZLOOEHDQLPSRUWDQWHOHPHQWLQWKHLU response to the allegations, and may mean that the complaint is not ultimately successful, but it does not mean that the allegation of insufficient action is inadequate at this stage to make out an arguable case. Certainly, it does not meet the standard of ³SODLQDQGREYLRXV´WKDWWKHFRPSODLQWZLOOQRWVXFFHHG [39] As noted, counsel stressed that the blog was not an employer blog and that the employer therefore did not create or fail to provide a healthy workplace. Although the complainants do not allege that management participated in or controlled the blog, the central point of their case is their contention that management was responsible to react to restore the situation to a point where the Operational Managers were not subject to what they consider harassment and a poisoned or unsafe work environment. In my view, if, as the policy states, there is a managerial responsibility to ensure that the workplace is free from harassment no matter what the source or who is involved, it cannot be an answer to the viability of the case to say that it was bargaining unit HPSOR\HHVZKRPDNHXSWKHEXONRIWKHLQVWLWXWLRQ¶VZRUNIRUFHRUWKHXQLRQZKR represents them, who were generating the content that is alleged to be personal harassment. [40] As to possible remedy, if the complainants were to be successful in establishing that a breach of their terms and conditions of employment occurred, I agree that some of the remedies requested by the complainants raise difficulties. In general, it appears the complainants wanted the employer to have been more proactive to rein in the anonymous bloggers. However, neither the union nor any individuals thought to be responsible for the blog or its content are parties to these complaints, and the - 14 - complainants clarified at the hearing that they will not be asking the Board to make any RUGHUVDJDLQVWWKHXQLRQ7KLVLVDSDUWLDODQVZHUWRWKHHPSOR\HU¶VFRQFHUQVDERXWWKH %RDUG¶VMXULVGLFWLRQWRSURYLGHDQ\UHPHG\FRQFHUQLQJLWVDSSURDFKWRZDUGVWKHXQLRQRU the bloggers. In any event, the notion that some of the remedies requested would be LQDSSURSULDWHRUEH\RQGWKH%RDUG¶VUHDFKLVQRWGHWHUPLQDWLYHLIWKHUHDUHRWKHU remedies available to remedy any breach that might be found to have occurred. [41] The range of remedies requested in the complaints is not limited to requests that the employer take action against the union and the bloggers, including shutting the blog down. They also ask for an investigation, compensating time for health and wellness, upwards reclassification and an apology from the employer. If there were to be a decision in their favour, it would likely include declarations, which may be considered a remedy of sorts. [42] Having reviewed all the submissions before me, it is my view that there is an arguable FDVHWKDWWKHUHDUHUHPHGLHVZLWKLQWKH%RDUG¶VMXULVGLFWLRQWKDWFRXOGEHDZDUGHGWRWKH complainants, including declarations and compensation, if it were to be found that their terms and conditions of employment have been breached. Given the limited factual background currently before me, it is not appropriate to speculate at the moment as to the type of any other possible remedies, and the parties will have full opportunity to make their submissions about remedy if the matter proceeds. [43] To summarize, it is my view that the complainants have an arguable case, such that the %RDUGGRHVQRWDFFHSWWKHHPSOR\HU¶VPRWLRQWRGLVPLVVHLWKHURQWKHEDVLVRI timeliness, or for lack of a prima facie case. In ruling in this way, however, the Board wishes to underline that this is a ruling at a preliminary stage, on a complaint that raises many difficult issues, both factually and legally. Whether or not there will be any success for the complainants at the end of the day is not the test at this stage. Rather, to repeat, the test is whether it is plain and obvious that the complaint cannot succeed. [44] The Board notes that the arguments thus far in this case were properly aimed at the issues raised by the motions, and did not extend to further issues that would need to be dealt with if the matter proceeds to a hearing on the merits. Nonetheless, the complexity of those issues, and the uncertain outcome might well serve as an incentive for the parties to revisit the possibility of resolving their issues themselves. In this regard, it is - 15 - appropriate to note that social media such as the blog here in question are presenting challenging problems to employers, and others, around the world. There are both legal and practical limits to controlling even the most egregious examples of harmful speech on the internet. In our context, it is worth noting that, although there were a few examples of the statements made on the blog before me, there was no evidence called or any suggestion that I had heard all of the content of which the Operational Managers complain. I have not reproduced the blog content of which I was made aware in this decision, although if the matter proceeds on the merits it may well be necessary to set it out in a decision, thus further publishing it, whether or not it has been removed from the web, and whether or not the complaints succeed. Suffice it to say for present purposes that there seemed to be consensus that some of the comments were at least disrespectful, and the characterizations of the content in argument included words such as inappropriate, demeaning, defamatory and offensive. Nonetheless, it is worth noting that there is a very broad spectrum of possible characterizations of speech by employees concerning their managers, and that not all negative commentary, even if it causes offense, amounts to harassment or a poisoned work environment. There is no doubt a line between acceptable union or individual advocacy and discontent with management and the right to express it, and what may amount to harassment, insubordination, threats or defamation, although in any given situation it may be difficult to pinpoint exactly when that line has been crossed. And where, when and how such expressions are made is relevant to how they are properly regarded for the purposes of a complaint such as this. Venting between employees over the real or perceived inadequacies of their managers has a different aspect when it is limited to personal conversations in off-duty or social situations, no matter how widespread, compared to when it is posted for all to see at any time on the internet. Nonetheless, if, when and how that translates into workplace harassment or a poisoned work environment worthy of remedy for their supervisors, and if so, what kind of remedy, are novel questions without a clearly defined answer at this stage. [45] As well, it is worth noting that managers at all levels have to exercise judgment as to how and when to respond to problematic situations in the workplace, particularly where they are not explicitly covered by the WDHP policy or other detailed policy directives. There will necessarily be differences of opinion as to the best approach. To the extent that this complaint represents a difference of opinion between various layers of the management team as to how to best deal with the challenges of their unionized - 16 - environment preceding and following collective bargaining, the complainants may well be testing the outer limits of what should be included in the notion of a poisoned work environment, a term which eludes precise definition at the best of times. In any event, the situation regarding the union blog is definitely not a simple one with a straightforward solution. There are issues involved which range from those raised by the Operational Managers and the effect of the blog content on the general health and morale of the workplace, to free speech and freedom of association, all complicated by the easy access to the Internet which blurs the boundaries between the workplace and private activity. The parties are encouraged to take this opportunity to consider their positions, and the advisability or otherwise of continuing on to litigation, as opposed to pursuing other alternatives, in light of this decision and whatever the current situation may be in the institution. [46] For the reasons set out above, the emSOR\HU¶VPRWLRQWRGLVPLVVLVUHMHFWHG st day of July 2011. Dated at Toronto this 21 .DWKOHHQ*2¶1HLO9LFH&KDLU