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Home My WebLink AboutWilliams 23-12-11In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations Act Between: Ontario Shores Centre for Mental Health Sciences (the “Hospital”) -and- Ontario Public Service Employees Union on behalf of its Local 331 (the “Union”) Grievance of Xiomara Williams – OPSEU File #2020-0331-0026 (ER #2020-07) Arbitrator: Randi H. Abramsky Appearances: For the Hospital: Amanda Cohen Counsel Gordon Shantz Labour Relations Lead Cathy Duivesteyn Administrative Director, Forensic Program Brittany Bates Articling Student Camille Thomas Director, Human Resources Bob Blewitt Human Resources Consultant Brittany Bates Student Meagan Ali Labour Relations Lead Laura Mizzi Manager of Human Resources, Occupational Health, Wellness and Safety Kimberly Dias Student-at-Law Heather Sulaiman Former Clinical Manager Tanya Pardy Labour Relations Lead Sydney Borisko Human Resources Coordinator For the Union: Jorge Hurtado Counsel Jonathan Leung President of the Local Xiomara Williams Grievor A hearing in this matter was held via video conferencing on January 5, 2022, July 22, 2022, January 4, 2023, April 27, 2023, September 11 and November 24, 2023 2 AWARD 1. This grievance concerns whether the Hospital engaged in “discrimination, bullying and harassment” against the Grievor due to her request for accommodation for childcare arising from the Pandemic. She also alleges discrimination based on family and marital status, a failure to accommodate and breaches of privacy. The Hospital denies any wrongdoing. Facts 2. March of 2020 was a chaotic time, particularly in the health care sector. Like other hospitals, Ontario Shores Centre for Mental Health Sciences (“Ontario Shores"), which is a forensic mental health facility, was significantly impacted. If a staff member experienced cold symptoms, they were required to stay home and isolate for fourteen days. Staffing was challenging. The goal was to ensure adequate staffing to ensure patient and staff safety. 3. The Grievor, an RPN, worked in the Forensic Assessment Unit. At the time, the Grievor had worked at Ontario Shores for about eight years, and there were no reported issues with her work or performance. 4. Her Clinical Manager, Cathy Duivesteyn, testified that her only issue was the frequency with which the Grievor wanted to change her shifts. Employees work a two-week rotation, of three 12-hour shifts: two weeks on days, followed by two weeks on nights, plus every other weekend. Clinical Manager Duiveestyn did not have an issue with the Grievor changing her shifts through exchanges. 5. The Grievor’s husband worked at Ontario Shores from 2012 to 2019 as a Registered Nurse. He then worked at the local LHIN. He also worked on a casual basis at St. Mike’s Hospital, since 2008. At the relevant time, the Grievor had two small children, ages 1 and 2. The Request for Accommodation 6. On March 20, 2020, the Grievor sent the following email to Clinical Manager Duivesteyn: Good morning Cathy 3 I would like to request accommodations to my schedule to facilitate childcare. My spouse is also a nurse and a frontline worker and is unable to take to take [sic] time off due to his obligations to provide patient care in an acute care hospital setting. Please consider the circumstances that I am in and I am willing and ready to work. I am available all night and weekend shifts. I am not able to work Monday to Friday day shifts. My next schedule[d] day shifts are Thursday March 25, March 31 and April 1. Ms. Duivesteyn responded later that morning: Hi Xiomara, Please look at switching your shifts with your colleagues or into any shortages we may have and I will approve. For example, can you switch with one of your colleagues from days to nights? Or if there is a weekend shortage you could pick up that shift instead. Please connect with Janet if there is a shift switch request so that I can help support. Thank you. 7. Ms. Duivesteyn became ill on March 25, 2020 and was required to stay home from work. Another Clinical Manager, Heather Sulaiman, was assigned to cover the FAU unit as well as her own regular unit while Ms. Duivesteyn was off work. Ms. Duivesteyn, however, was in contact by email. The Accommodation 8. For the next eleven days, from March 20 to April 1, the Hospital, through management and scheduling employees, worked with the Grievor to switch out her day shifts. The Hospital accepted the Grievor’s claim that her husband worked as a frontline worker in an acute care hospital so she needed to be home Monday to Friday during the day. The Hospital did not remove her from the regular scheduled rotation, but worked with her to facilitate working nights and weekends. 4 9. A few issues arose during this time. The Grievor initially was unable to find someone to switch with her but subsequently did so. On March 25, 2020, Carol Espie, Forensic Program Secretary wrote to Ms. Duivesteyn and Ms. Sulaiman to clarify the situation. She wrote: Hello. I received a message from Xiomara Williams telling me to remove tomorrow March 26 at 7012 [day] shift on FAU, as per Cathy D, and to look for needs on the unit for the weekend instead? I was hoping to get confirmation this is what I am to do with the shift being on FAU and they have great needs right now. Ms. Duivesteyn wrote back: No that was not exactly my direction. I had asked her to switch or find someone to work for her as she is having child care issues. I told her she could switch into a need and she would need to work with Secretary and CSSO [Central Scheduling] to do this. This was my direction last week. Ms. Espie responded: Thank you Cathy for responding. I will call her and ask her to find someone to work for her. Roxanne let me know if you know of any shifts she may pick up and I can let her know if you like. 10. The Grievor was given a night shift on March 27, 2020 but she called in sick for it. She was advised to contact Occupational Health as they needed to know her symptoms. At the time, the FAU was on an outbreak situation. 11. On March 30, 2020 the Grievor advised Ms. Sulaiman that she had been “cleared by occ health.” Ms. Sulaiman was confused about the shift the Grievor was coming in for, asking “I understood you called in for tonight or today?” The Grievor responded: I am not working today. I am not able to work day shifts during the week due to childcare. Shaina is able to do my shifts tomorrow Tuesday and Wednesday. She does not have any shifts that I can exchange with as she is part time. I 5 am willing to take both shifts as vacation or make them up on another shift that we are short. Ms. Sulaiman responded the following morning, on March 31, 2020: Hi Please ensure you are keeping Leanne Beaudry [Secretary] in the loop as well as CSSO. If you are not able to make up your shifts, then you will need to use vacation time. Thanks. 12. The Grievor acknowledged in her examination-in-chief that she had “received accommodation from Cathy” until April 1, 2020. On cross-examination, she acknowledged that she had not been required to work days and had no missed hours. 13. She had been scheduled for day shifts on March 31 and April 1, 2020 but it was agreed she could work nights on those dates. She worked the night shift on March 31, 2020 from 7:00 p.m. to 7:00 a.m. The Questioning 14. At some point on March 31 or April 1, 2020 Ms. Sulaiman learned that the Grievor’s husband did not work full-time at an acute care hospital but was working for the LHIN, from home. She could not recall at the hearing (more than three years later) how she had learned that. She may have, but could not recall, if she checked the College of Nurses’ website. She believed it was “common knowledge” among staff since Ontario Shores is a small hospital and the Grievor’s husband had recently worked for Ontario Shores. 15. Ms. Sulaiman contacted Human Resources to inquire about what she should do about this discrepancy in the information about the Grievor’s husband’s work situation. She was advised to ask the Grievor directly. 6 16. Ms. Sulaiman did so, and what was said during this call is highly disputed. It is also this phone call that forms the basis of the Grievor’s claim of harassment, bullying and discrimination. 17. According to the Grievor, on April 1, 2020, she came home from work, and took care of the children. She was napping when Ms. Sulaiman called her cell phone around 2:00 p.m. She testified that Ms. Sulaiman “fired questions to me” and gave her “no opportunity to answer or explain.” She said that Ms. Sulaiman told her that she found out where her husband works, that he works from home, for the LHIN, Monday to Friday. and was not a frontline worker and should help with the children. Ms. Sulaiman told her that she had spoken to HR, and stated that the Hospital does not have to accommodate her and there would be no further accommodation. She said that Ms. Sulaiman stated that her husband has the same right to accommodation for childcare that she did and he needed to access those rights. 18. The Grievor testified that she agreed that her husband works for the LHIN, but also at St. Mike’s, and that he was a front-line worker there, working in Emergency as well as Respiratory. In her view, she did not think Ms. Sulaiman heard her, as she kept speaking over her. She said she tried to explain that he was working remotely but in the community and was a frontline worker. She stated that Ms. Sulaiman told her to talk to her husband, figure out their childcare situation and let Cathy know since she was on night shifts for the next two weeks. 19. On her second day as a witness, on examination-in-chief, the Grievor testified that Ms. Sulaiman told her she had “investigated my family”, that she had “lied”, and that it was her “husband’s responsibility to care for the kids, since she was a frontline worker, and he was not.” She “couldn’t recall what else” had been said since it’s “been a few years”; she “didn’t remember all” that was said. 20. Ms. Sulaiman, who no longer works for Ontario Shores, testified that her tone was inquiring – that the Grievor had requested night shifts due to childcare issues because her husband worked as an acute care nurse, but he wasn’t; he was working from home – and was this true? The Grievor responded that it was true, that he worked from home for the LHIN, but it was 7 difficult for him to work and take care of the children. She responded that there was a parent at home, and it was a strain to accommodate on nights only. She advised that her husband’s employer also had a duty to accommodate. The Grievor was starting two weeks on nights, so they could plan how to share the responsibility, and discuss their tentative plan with Cathy when she returned to work. She testified on examination-in-chief that she gave the Grievor an opportunity to respond and explain. 21. Shortly after the call, Ms. Sulaiman wrote an email to the Grievor summarizing their telephone conversation, with a cc to Ms. Duivesteyn. It reads: Re: Childcare Hi. I wanted to confirm our telephone conversation a short while ago. You had reported that you can only work night shift due to childcare issue as your husband is a nurse Monday to Friday. My impression was that he went to work at a hospital from the information you provided. Today I called to clarify as I had information that your husband was not a frontline nurse and was in fact working from home for the LHIN. On our call, you indicated that yes, this was the situation. You expressed that although he was working from home, he could not look after the children as he could not concentrate. I expressed my concern that as there was a parent at home, the effects on the front line workers would/are strained making accommodation for night shift only. Today is an example of that where your unit is +1 (for night shift) and you are requesting vacation through the PCF. I have not approved that vacation as there may be needs and holes on other units throughout the hospital. As you are on night shift as per your regular schedule for the next 2 weeks, I have asked you to please consider, with your husband, how the both of you can make accommodations as he is entitled to the same considerations for childcare that you are and keeping in mind, you are a frontline worker and he is not. Once you have a tentative plan in place, please reach out to Cathy to let her know how you wish to move forward. Thank you for your time today, if you have any questions or concerns, please let me know. 8 Thank you. Heather 22. A few hours later, the Grievor responded by email to Ms. Sulaiman, as well as the Director of Labour Relations, the Director of Forensics and the Union. It reads: Hi Heather, … In your email as per our conversation you have indicated that you have investigated my family. This is a breach of my privacy and my family’s. At no point during our conversation over the phone, did I divulge who my husband was, or where he works. Due to the COVID- 19 as you have established my husband is now working from home Monday to Friday that being said he is working not looking after 2 toddlers, ages 1 and 2. Your email indicates, “I have asked you to please consider, with your husband, how the both of you can make accommodations as he is entitled to the same consideration for childcare that you are and keeping in mind, you are a front line worker and he is not,” [emphasis in original] As per the above you are assuming that we are irresponsible parents who have not discussed and sorted out our childcare needs and therefore need your guidance in how to operate our household. You have now gone and assumed that I have an irresponsible husband, who is immoral, unethical and willing to partake in criminal activities. My husband and I have worked out our childcare responsibility for months without any interference from both places of employment. You have also established that he is not a front-line worker; he is an active front-line worker. That being said, I stand by the accommodations of flexibility agreed upon by my manager Cathy Duivesteyn on March 20, 2020 at 11:42. The nature and timing of this email and conversation has given me unbearable stress. This conversation has left me feeling threatened and vulnerable. You mentioned in our conversation that you have taken up this matter with human resources who advised you that you do not need to accommodate me. Now I must choose been caring for my children and working. As per my understanding, this is considered harassment, bullying, intimidation and discrimination and does not align with Ontario Shores code of conduct. Ontario Shores prides itself on its core values of “respect, safety and community”. I do not feel that your conversation and email reflect any 9 of the aspects of the core values. This interaction has caused me a great deal of undue stress. While I have informed the union of this situation, my family will also seek legal counsel to find out why an employer would be investigating me and my family. 23. On cross-examination, the Grievor acknowledged that Ms. Sulaiman asked her to consider, with her husband, how they could each be accommodated to make childcare work, as both had the right to accommodation. She acknowledged that Ms. Sulaiman never said that her husband was irresponsible – that was her “interpretation of the conversation.” She agreed that Ms. Sulaiman never said he was immoral, unethical or engaged in criminal activity. That was her “interpretation”. She agreed that neither Ms. Sulaiman’s email, or her own response, stated that the Hospital would not accommodate her. 24. Ms. Sulaiman explained, at the hearing, that while she also could not remember the precise conversation, she was certain she did not say that there would be no accommodation. She may have said that accommodation is not automatic, simply by saying one cannot work days, and that there is a process to determine if alternatives are possible. Instead, she advised the Grievor to speak to her husband about how they could work it out, then discuss it with Ms. Duivesteyn. Since she was filling in while Ms. Duivesteyn was away from work, she had “no long game in this” situation. 25. In addition to his work for the LHIN, the Grievor’s husband was a casual frontline worker at St. Mike’s. No evidence was presented concerning the number of shifts he worked during this time, or when they occurred. Nor was any such information conveyed to management. His full-time job, Monday to Friday, was at the LHIN. The Grievor acknowledged, on cross- examination, that she did not tell Ms. Duivesteyn about the LHIN work when she requested accommodation, and that she did not provide “full information” She acknowledged that working for the LHIN, her husband was not providing patient care in an acute care setting. It was her view, however, that he was still a frontline worker for the LHIN as he did client assessments. She acknowledged that as an RPN at Ontario Shores, she was a frontline worker. 10 26. The Grievor also acknowledged that her husband, as a former employee, was known to staff, and that she spoke to co-workers about her husband. She did not dispute that some employees knew that her husband worked for the LHIN, or that the hours of work for the LHIN were public. 27. The Grievor did not follow up with HR, or with Ms. Duivesteyn, concerning accommodation. Instead, she went off work on the basis that she was “medically unfit to work.” Consequently, there were no shifts that the Grievor worked that had not been accommodated. 28. Subsequently, the Grievor voluntarily left Ontario Shores. She did, however, file the instant grievance and a privacy complaint with Ontario Shores. That was dismissed since her husband was not referred to by name and no private information was contained in the email. Her husband filed a complaint with the Privacy Commissioner, and that complaint was closed. 29. Ms. Sulaiman denied “investigating” the Grievor’s husband. In an email exchange with Ms. Duivesteyn, however, Ms. Sulaiman advised that the Grievor had mentioned, during their call, “he may get pulled to work at St. Mikes if things get bad” and suggested someone contact Ifat – a former manager at Ontario Shores who now worked for St. Mikes. Ms. Duivesteyn did so via text on her private phone, not her work phone, and learned that the Grievor’s husband did not work for Ifat, but was a casual RN there. At the time that she was asked to produce any relevant emails and texts, she had deleted them as was her practice of regularly deleting texts. 30. It is undisputed that as a Registered Nurse, the Grievor’s husband’s employment history is accessible online and is public information through the College of Nurses. 11 Reasons for Decision 1. There was no harassment, discrimination or bullying. 31. The Grievor asserts that the April 1, 2020 telephone call constitutes “harassment, bullying and discrimination”. Having considered carefully all the testimony, documents, case law and arguments of the parties, I am not persuaded that is so. 32. In Re Toronto Transit Commission and ATU (Stina), 2004 CanLII 55086 (Shime), at p. 82-83, Arbitrator Shime defined “abuse and harassment” as follows: Abusive conduct includes physical or mental maltreatment and the improper use of power. It also includes a departure from reasonable conduct. Harassment includes words, gestures and actions which tend to annoy, harm, abuse, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands or other unpleasantness. A single act, which has a harmful effect, may also constitute harassment. 33. The same definition was used in Re Kinark Child and Family Services, Syl Apps Youth Centre and OPSEU, Local 1213, 2021 CarswellOnt 12691 (Marcotte) and Re Amodeo v. Craiglee Nursing Home Ltd., 2012 CarswellOnt 11897 (OLRB). 34. Whether harassment occurred is to be determined on an objective standard, as opposed to the subjective impressions of the alleged victim. Re Cara Operations Ltd. and Teamsters, Chemical, Energy and Allied Workers, Local 647, 2005 CarswellOnt 7614 (Luborsky) at paras 19-20. An individual’s belief is insufficient. As stated by Arbitrator Dissanayake in Re OPSEU (Deprophetis) and Ministry of Labour, 2010 CanLII 72683, at para 41: While … the grievor believes that [the supervisor] was motivated by malicious and nefarious reasons, his belief is not a sufficient basis for me to draw the inference that [the supervisor] harassed or discriminated against the grievor. His subjective belief, however strongly and 12 sincerely held, is not proof that he was targeted by [his supervisor] for harassment or discrimination. 35. In my view, the objective evidence fails to establish that the Grievor was harassed or discriminated against by Ms. Sulaiman during their telephone call or her email on April 1, 2020. 36. There was a legitimate reason for the call. The Grievor misrepresented her husband’s work situation when she requested accommodation on March 20, 2020. She requested accommodation to facilitate childcare because her spouse, “a nurse and frontline worker…is unable to take…time off due to his obligations to provide patient care in an acute care hospital setting.” This was, at the least, misleading. The Grievor made no mention of his full-time work for the LHIN, where he was working from home, Monday to Friday. His work as a casual RN at St. Mike’s was secondary, and not Monday to Friday. What she wrote in her email was that she needed to have days off, Monday to Friday, “due to his obligations to provide patient care in an acute care hospital setting.” This was untrue and misleading. 37. Ms. Sulaiman learned that the Grievor’s husband was not a full-time frontline worker at an acute care hospital. There is no evidence that she “investigated” the Grievor’s family to find this out. The Grievor acknowledged that her husband was known to staff at Ontario Shores as he had recently worked there, and that some staff members knew he now worked for the LHIN. She acknowledged that she talked about her husband at work. On the balance of probabilities, I find it more likely than not that Ms. Sulaiman learned this through staff rather than an “investigation” into the Grievor’s husband. The information was also publicly available on the CNO’s website. 38. The email exchange where Ms. Sulaiman asked Ms. Duivesteyn to contact Ifat at St. Mike’s came after Ms. Sulaiman’s call with the Grievor, and related to the Grievor’s assertion that her husband was a frontline worker due to his work at St. Mikes, and therefore could be called into work there. I do not find that this communication was an “investigation”. It was an inquiry based on the information relayed by the Grievor, and no further action was taken. 13 39. When Ms. Sulaiman inquired of HR what she should do based on the discrepancy in the information about the Grievor’s husband’s work, HR properly advised her to ask the Grievor directly. On the facts of this case, the Hospital legitimately questioned the Grievor about her husband’s employment situation on April 1, 2020. 40. It should be noted that there was one phone call about this to the Grievor. Not multiple calls or inquiries. 41. In terms of the substance of the call, I credit the version of the call presented by Ms. Sulaiman over the version presented by the Grievor. The Grievor ’s email, in response to Ms. Sulaiman’s email on April 1, contained a great deal of assumptions and umbrage – asserting that Ms. Sulaiman “assum[ed] that we are irresponsible parents who have not discussed and sorted out our childcare needs and therefore need your guidance in how to operate our household” and that she “assumed that I have an irresponsible husband, who is immoral, unethical and willing to partake in criminal activities.” On cross-examination, the Grievor admitted that Ms. Sulaiman did not say these things and that this was her “interpretation” of the call. 42. I find it more likely than not that the Grievor misunderstood what Ms. Sulaiman was telling her. Perhaps she was tired; she had just worked the night shift and had taken care of her children. She was napping at the time of the call. But I am unable to find that Ms. Sulaiman told her that she “lied”; she questioned whether her husband worked in an acute care hospital since she had learned he worked for the LHIN, and asked if it was true. The Grievor confirmed that it was. This was, on the whole, a legitimate inquiry; not an accusation. It was not harassment, bullying or discrimination. 43. The Union asserts, in closing argument, that the Grievor, through this call, was making a “second request for accommodation” based on her husband’s need to work from home during the day. I am unable to construe the telephone call in that manner. Nor is there anything in the Grievor’s email response that suggests that this was an amended request. On the balance of probabilities, I find that it was an explanation for having misled the Employer in her original accommodation request, not a second request for accommodation. 14 2. There was no violation of the duty to accommodate. 44. I am also unable to conclude that the Grievor’s right to accommodation was violated. The evidence does not support the Grievor’s claim that Ms. Sulaiman told her that she would not be accommodated. Much of the discussion centered on the fact that her husband’s employer also had a duty to accommodate him, and that together they should find a childcare solution that worked, and then discuss it with Ms. Duivesteyn. This was confirmed in Ms. Sulaiman’s email, and this was not unreasonable. There were only a limited number of day shifts per month that the Grievor was required to work. It is quite possible that the LHIN could have accommodated that situation, instead of putting all of the burden for accommodation on Ontario Shores. Further, the Grievor, in her email in response, did not assert that Ms. Sulaiman advised that she would no longer be accommodated. This may have been what the Grievor thought she heard, but I am unable to conclude that it was said. 45. The Grievor clearly had a right to request accommodation due to childcare on March 20, 2020, the start of the Pandemic. Daycares were closing, and the entire province was about to be shut down. She had two infants at home. The Grievor was clearly a member of a protected class based on family status – the status of being in a parent/child relationship. Further, as stated by Arbitrator Knopf in Re Carleton University and Carleton University Academic Staff Association, 2022 CanLII 70120, at p. 8, the pandemic created “an enormous challenge for anyone” trying to balance work and childcare needs. 46. The evidence does not establish, however, that she experienced an adverse impact. The Grievor acknowledged, and the evidence establishes, that she was accommodated from the date of her request, March 20, 2020 to April 1, 2020 when she became unable to work. There were no shifts that she was scheduled to work for which she was not accommodated. 47. Nor can I conclude that the Hospital’s request that she review her childcare needs with her husband during her two weeks on the night shift, to see if his employer could make some modifications on the days she was scheduled to work days, was improper. An employee requesting family status accommodation “is obligated to cooperate in the accommodation 15 process, including by providing the respondent with sufficient information related to the family-related needs and working with the Respondent in identifying possible solutions to her family/work conflict.” Re Espinoza and The Napanee Beaver Ltd., 2011 HRTO 68. The Grievor did not do this. 48. Instead, the Grievor misrepresented her husband’s work situation when she requested accommodation, then took great offence when she was questioned about it. This case is similar to the situation in Re Misetich and Value Village Stores Inc., 2015 HRTO 1129. In that case an employee refused the employer’s accommodation for a physical injury because it required evening and weekend work. She advised that she could not work those shifts as she needed to provide dinner for her elderly parent. She resisted all of the employer’s attempts to learn more about that situation, believing that the employer was not entitled to private information about her mother. The Adjudicator concluded at para 82: The applicant took an intransigent position regarding her human rights. When the respondent attempted to move the applicant to less physically demanding work in retail and schedule her on a variety of shifts, the applicant took the position that it could not do so because of her family status. The applicant believed that all she needed to do was to assert her family status and that would be the end of it. The applicant was wrong. The applicant was required to provide sufficient information to substantiate her eldercare responsibilities. She failed to do so. 49. In light of the limited number of shifts per month where the Grievor worked days, it is possible that some accommodation to her husband’s schedule may have enabled her to work some day shifts. Alternatively, some other arrangements may have been possible. 50. On the evidence, it appears that the Grievor strongly felt that she and her husband had already discussed and determined the best approach to the situation they faced – the Grievor would work nights and weekends and watch their children during the day while her husband worked from home, Monday to Friday. That was their preference. She viewed the Hospital’s assertion that other options should be considered as insulting. But as stated in Re OSSTF and TDSB, 2020 CanLII 673 (Nyman), at para 277: “Human rights law is concerned with ensuring the 16 needs, and not the preferences, of an employee are met.” Or, as stated in Re Espinoza, supra, at para 99: “An applicant is required to participate in the accommodation process. An applicant is not permitted to insist on a particular accommodation.” 3. There was no discrimination based on marital status. 51. “Marital status” is defined in the Ontario Human Rights Code as the “status of being married”. That is not the Grievor’s claim. Her claim, as presented in argument, is that Ms. Sulaiman discriminated against her based on a personal grudge that she had with the Grievor’s husband. On cross-examination, it was discovered that in late 2017, Ms. Sulaiman, as the department manager, accepted a late shift switch at the Grievor’s husband’s request, and then sent an email that if the employee he switched with called in sick he “has to eat ten crickets.” She meant it as a joke, and testified, without contradiction, that they often joked on the floor. He later complained about this email to HR, which did an investigation but determined that Ms. Sulaiman had not violated the Code of Conduct, even though the email was “inappropriate.” It was on this basis that the Union argued that Ms. Sulaiman’s email and conversation with the Grievor on April 1, 2020 should be viewed as marital status discrimination. 52. I am not persuaded, on the evidence, that Ms. Sulaiman’s April 1, 2020 conversation or email with the Grievor was based on her marital status as defined in the Code. Even if marital status could include the status of being married to a particular person, as opposed to the status of being married, the evidence falls short. The call was made because the Grievor misrepresented her husband’s work situation, and Ms. Sulaiman was properly advised by HR to ask the Grievor directly about it. 53. There was no testimony by the Grievor about any disharmony between Ms. Sulaiman and her husband. Nor did the Grievor’s husband testify. The evidence does not establish discrimination based on marital status. 17 4. There was no privacy violation. 54. Both the Grievor and her husband filed complaints asserting a violation of their privacy based on the Hospital’s “investigation” of the Grievor’s husband’s work situation. Those complaints were dismissed. As noted, I am not persuaded that there was an investigation. I find, on the balance of probabilities, that Ms. Sulaiman learned that the Grievor’s husband worked for the LHIN, Monday to Friday, from colleagues, and not through an improper investigation. The Grievor’s husband, as a former employee, was known to staff and the Grievor testified that she would talk about her husband with work colleagues. The information was also available on a public website through the CON. 55. In terms of the decision to follow up on the Grievor’s husband’s work situation at St. Mike’s with Ifat, that occurred after the April 1, 2020 call, and was based on the Grievor’s claim that he could be called in to work at St. Mike’s. This situation has some similarity with Re City of Toronto and CUPE, Local 79, 2019 CanLII 78856 (Sheehan). In that case, an employee worked for the City and at a nursing home. She had called in sick on several occasions when she later worked, on the same days, for the nursing home. The City investigated her work history with the nursing home and the union claimed a violation of the Grievor’s privacy. The arbitrator determined, at para 35, that the City had “a reasonable basis to investigate the Grievor’s work history” at the nursing home since the Grievor had not been forthcoming with respect to that information. The arbitrator concluded that any breach of privacy was de minimis and would not issue any sort of declaration or sanction. 56. Similarly, the call to Ifat was reasonable in the circumstances since the Grievor had not been forthcoming about her husband’s work situation. But even if the inquiry to Ifat about the Grievor’s husband was improper and a violation of his privacy, it was de minimis and does not warrant a declaration or sanction in all of the circumstances. It also did not violate her privacy rights. 18 Conclusions: 57. For all of the above reasons, the grievance is dismissed. Issued this 11 th day of December, 2023. Randi Abramsky _______________ Randi H. Abramsky