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HomeMy WebLinkAboutP-2009-1510.Cardoza.11-12-15 DecisionPublic Service Grievance Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission des griefs de la fonction publique Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 P-2009-1510 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Nelson Cardoza Complainant - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Kathleen G. O’Neil Vice-Chair FOR THE COMPLAINANT Gavin Leeb Counsel FOR THE EMPLOYER Carol Ann Witt and Michelle Dobranowski Ministry of Government Services Labour Practice Group Counsel HEARING May 18, October 19, December 14, 2010, February 9, March 7 & 28, April 11, 2011. CONFERENCE CALL April 18, 2011. - 2 - Decision [1] This decision deals with the complaint of Operational Manager (OM) Nelson Cardoza, which arose in the context of a disputed change of his assignment following a grievance from a Correctional Officer (CO) about his behaviour toward her. He claims that the employer treated him unfairly in its handling of the matter, unjustifiably preferring her interests to his. The employer denies any breach of the complainant’s contract of employment, alleging instead that it was Mr. Cardoza who breached it by unilaterally removing himself from the workplace. Overview [2] This dispute has its roots in issues between Mr. Cardoza and Ms. Angela MacDonald, one of the CO’s who often reported to him at Toronto West Detention Centre, where they both work. The working relationship was marked by significant mutual dissatisfaction, intensifying in the years 2007 and 2008. By the end of 2008, he had spoken and written about her conduct to his superiors on a number of occasions, and she had grieved twice and filed two complaints under the Workplace Discrimination and Harassment Prevention Policy (WDHP) about her perception that he was harassing her and poisoning her work environment. An interim settlement of the first grievance, before Mr. Cardoza knew it existed, led to his reassignment, so that he would not be supervising her, a situation which later became indefinite by virtue of a second settlement, arising from an allegation of breach of the first. These settlements, made without providing him with information about the allegations against him, became a major catalyst of the events of which he complains to this Board. By the time this grievance was filed in the summer of 2009, Mr. Cardoza had concluded that it was his work environment that had been poisoned, by what he considered the unfounded complaints against him by the CO, and management’s arbitrary preference for Ms. MacDonald’s and the union’s interests over his. [3] The evidence before me demonstrates that Mr. Cardoza is a long-service, well-respected Operational Manager, who has served the Ministry in many ways beyond the normal expectations of his job. He has many accomplishments to his credit, often putting the needs of the institution above his own, serving on high profile provincial committees, and working very significant amounts of overtime to fill gaps in the schedule. - 3 - [4] Mr. Cardoza considers the support of senior management to be essential to effective functioning as an OM, and other evidence echoed this view. He believes that his authority was initially undermined by the failure of his superiors to act in response to his reports that CO MacDonald was insubordinate in circumstances that could have endangered him and others. When, rather than holding her to account, senior management reassigned him instead, leaving the impression with others who reported to him that he was guilty of some misconduct, the situation became intolerable to him, with significant effects on his health and morale. He attempted to resolve the situation, but many factors conspired to prevent a satisfactory solution in a timely manner. In the end, he was off work for over a year, albeit with pay, and claims that management is responsible for his losses and damages, including to his reputation, health and income. [5] Before engaging in a more detailed account and analysis of the largely undisputed facts involved in this matter, it is important to be clear about what is not before me, and what this decision will not be determining. Firstly, the grievances of the Correctional Officer, a bargaining unit employee, are something over which this Board has no jurisdiction, and which have in any event been settled. Nor did either party attempt to litigate those grievances, although some of the events which apparently lead to the grievances are relevant in a different way in this matter. Thus, it is not for me to decide if the CO was insubordinate, or ought to have had to account for herself in an adjudication by senior management of the infractions reported by Mr. Cardoza. Similarly, her WDHP complaints are not before me, and were resolved by way of a fact-finding process, which most importantly, found no basis for the CO’s suggestion that Mr. Cardoza had discriminated against her on the basis of her gender. Indeed, no finding of wrongdoing was made as a result of her grievances or complaints about him. [6] As well, it is relevant to how this matter unfolded that the complaint filed with this Board by Mr. Cardoza mentions that he is a racialized person and has suffered incidents of discrimination during his work at the Ministry. Nonetheless, this case was explicitly argued without any suggestion that the breaches of his terms and conditions of employment alleged - 4 - in the complaint now before me were as a result of his race, ethnicity, or any other ground protected by the Ontario Human Rights Code. [7] In general, the issue to be decided is whether the employer has breached Mr. Cardoza’s contract of employment during the very unfortunate sequence of events preceding his return to work in May 2010. As part of that determination, it is necessary to identify the relevant terms and conditions of Mr. Cardoza’s employment, decide whether the employer has breached any of those terms and whether Mr. Cardoza is entitled to any remedy. [8] Relevant provisions of statutes, regulations and policy are appended to this decision for ease of reference, together with collected citations for the case law referenced below. I. Relevant terms and conditions of Mr. Cardoza’s employment [9] Mr. Cardoza’s terms and conditions of employment, like those of all Operational Managers, are set by an individual contract of employment, as they are excluded from collective bargaining. This means that terms of the contract may be set and varied by mutual consent of the employee and the employer. Nonetheless, most of those terms are not individually negotiated, as they come from statutory and policy provisions that are generally applicable at least to all those in the same classification, and often to all provincial government employees. In argument, Mr. Cardoza’s counsel urged a finding that two generally applicable employer obligations were key to this case: a duty to provide a functional, or unpoisoned, workplace and a duty not to ignore an employee’s interests, or treat him arbitrarily, which I characterize as a duty of fairness. These will be discussed in turn, followed by a review of a number of other terms and conditions of employment, most of which are relatively uncontroversial to state, but more controversial in application, where the heart of the dispute lies. Arguments made concerning the availability of remedies regarding items such as overtime and pay for performance will be dealt with in the section of this decision concerning requested remedies. - 5 - a. Duty to provide a functional/non-poisoned work environment [10] First of all, as a matter of general common-law or as an implied term of a contract flowing from the Occupational Health and Safety Act, Mr. Cardoza’s counsel argues that the employer must provide a workplace that is functional, in which employees can work. Counsel characterizes this as a positive duty to provide a workplace that is not poisoned. Further, he submits the employer has a duty, when concerns are raised, to investigate, and to take action to remediate or mitigate the problem so employees can work, or to make arrangements so employees can work elsewhere. He notes that section 25 (2) (h) of The Occupational Health and Safety Act, which articulates the obligation to take every reasonable precaution to protect employees, applies to the Crown. [11] In support of this argument, complainant’s counsel refers to the employer’s Workplace Discrimination and Harassment Prevention (WDHP) Policy, applicable at the time of the events here in question, which acknowledges the employer’s duty to prevent a poisoned workplace in respect of grounds protected under the Ontario Human Rights Code, such as race and gender. However, the complainant’s position is that the duty is broader than just preventing poisoning of the work environment based on human rights grounds. In this respect he refers to Shah v. Xerox [1989] O.J. No. 4349, 49 C.C.E. L. (2d) 30 (Ontario Court of Justice), approved on appeal - 49 C.C.E. L. (2d) 166 (Ontario Court of Appeal). The Court ordered damages for constructive dismissal on the basis that the employer had treated an employee in such a manner that his continued employment was intolerable, in the absence of any Code-protected ground. Rather, the situation had become too difficult because of communication issues worsened by the impatient and authoritarian approach of the responsible manager. Counsel invites a finding that from an effect-based analysis, an intolerable workplace has no less harmful effect on an employee because the source may not be one protected by the Human Rights Code. In sum, counsel urges a finding that there is an implied term of the employment contract that the employer will not allow intolerable working conditions to exist. [12] More specifically, counsel argues that there is a dignity interest arising from the importance of work to every individual which the employer is obliged to protect. Counsel refers to the - 6 - statement of the then Chief Justice of the Supreme Court of Canada in Reference Re Public Service Employee Relations act (Alta.), [1987] 1 S.C.R. 313, at p. 368, to the effect that work is one of the most fundamental aspects in a person’s life, and an essential component of his or her sense of identity, self-worth and emotional well-being. Counsel referred to case law dealing with the dignity interests arising from The Human Rights Code such as Charlton v. Ontario (Ministry of Community Safety and Correctional Services) P-2006-0291 (Carter) 2007CanLII 24192 (ON P.S.G.B.) and Ontario v. McKinnon [2003] O.J. 893, (Ontario Divisional Court). Relying on the Supreme Court of Canada’s decision in Fidler v. Sun Life Assurance Co. of Canada, [2006] SCC 30 CanLII, [2006] 2 SCR 3, the Board made clear in Charlton that damages for mental distress arising from the breach of contract terms that create the expectation of an intangible psychological benefit would be available in appropriate cases. Counsel for the complainant argues that Mr. Cardoza’s contract promises such a psychological benefit, in the sense of a dignitary interest in the ability to go to work. He notes the decision of the Divisional Court in the McKinnon case, cited above, which found that there was irreparable harm to Mr. McKinnon in being kept out of the workplace, that a paid leave was not sufficient to address the situation in that case of a racially poisoned workplace. [13] The duty to provide a work place where an employee can work was described as equivalent to the duty to provide a work place that is free of harassment, not intolerable or poisoned. Defining a poisoned work environment in the circumstances is not a straightforward matter. The only definition of poisoned work environment in evidence is the one in the WDHP policy dated March 25, 1998, revised in 2007, applicable at the time of this complaint, which focuses on grounds protected by the Human Rights Code. It reads as follows: Poisoned Work Environment An infringement of every person’s right to equal treatment with respect to employment which refers to comments, behaviour or work environment that ridicules, belittles or degrades people or groups identified by one or more prohibited grounds of this policy. A poisoned work environment could result from a serious and single event, remark or action and need not be directed at a particular individual. - 7 - Although a non-grounds based definition of a poisoned work was not specifically articulated, I note that the applicable WDHP policy provided as follows, 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. Implicit in the argument was the idea that the definition of poisoned work environment was applicable by analogy to any unhealthy situation in the work place. And non-grounds based harassment has been the subject of successful grievances. See for instance, Toronto Transit Commission and A.T.U. (Stina) (2004), 132 L.A.C. (4th) 225 (Shime). The employer’s response to this argument was not a rejection of the notion that there is an obligation to prevent or remediate a poisoned work environment. Rather, the employer’s argument centred more on the idea that the grievor was largely responsible for the situation in which he found himself. Nonetheless, the fact that there is no established definition of a non-grounds based poisoned work environment in evidence, makes it difficult to state with any certainty the extent of the lack of health in the workplace which would warrant the designation. Certainly, the facts here are not at the level of the sustained course of abusive personal harassment endured by the grievor in the TTC case cited just above. [14] It is similarly difficult to define a right to go to work, or a separate, non-grounds-based dignitary interest, although the dignity of every person is a fundamental value in our democratic society. An employee’s right to go to work is conditional on so many things, such as availability of work, fitness to work, and safety of the workplace, to name but a few, that I find the concept overbroad for the purposes of articulating the applicable terms and conditions of employment here. As to the request for a declaration of an enforceable, free- standing dignitary interest, to the extent it aims at putting personal harassment on the same level as harassment based on grounds recognized as deriving from basic human rights, caution is required. This is so despite the fact that harm to dignity is one of the intangibles addressed in damage awards flowing from breaches of some terms of an employment contract, whether or not protected human rights grounds are present. In those cases, it is not a - 8 - free standing right, but an aspect of damages flowing from, and grounded in, an identifiable obligation of the party who breached the contract. In any event, I find other analytical structures, as discussed below, better suited to the resolution of this dispute, and I leave this submission for a case where it would be necessary to the outcome. Another reason to refrain from making further findings on this submission is that there have been changes both in legislation and employer policy regarding personal harassment since the time of the events giving rise to this dispute. These were not the subject of argument, as they were not in place at the applicable time, but may provide a firmer basis on which to analyze problematic workplace environments that are not asserted to engage human rights issues. In any event, as will be discussed below, Ms. MacDonald’s complaints contained allegations based on grounds protected by the Human Rights Code, and the WDHP policy which she invoked gave Mr. Cardoza certain rights as a respondent. b. Duty of Fairness [15] The second general area of the argument on behalf of Mr. Cardoza was to the effect that it was a term of his employment that he was entitled to be treated fairly. Counsel referred to jurisprudence of this Board such as Shilman v. Ontario (Ministry of Community and Social Services) P/0008/88 (Brent, Hoddle) 1989 CanLII 167 (ON P.S.G.B.), and cases cited therein such as Kanga v. Ontario (Ministry of Health), 1986 CanLII 95 (ON PSGB), where it is was held that it is a term and condition of excluded employees that they will be treated in a fair and equitable manner. This is essentially a promise of fairness in process, and its substantive content may vary from case to case. [16] Mr. Cardoza’s complaint is rooted in the allegation that his interests were not given consideration in an even-handed way. This engages the issue of the procedural rights of managers accused of wrongdoing by their subordinates, a subject this Board has dealt with in DaSilva and Ontario (Ministry of Health), 1997 Can LII 10281 (ON PSGB) (Leighton). In that case an Operational Manager in the Ministry of Health was the focus of grievances by a bargaining unit member alleging sexual harassment as well as more general harassment. The complaints were investigated, found to be unsubstantiated and later withdrawn. Like Mr. - 9 - Cardoza, Mr. DaSilva had not been disciplined, but claimed that other aspects of the employer’s handling of the matter caused him significant damage. [17] In the DaSilva decision, reference was made to Masters v. Ontario, (1994), 115 D.L.R. (4th) 319, 18 O.R. (3d) 551 (Divisional Court), where the court held that a duty of fairness is owed to the person accused, or respondent, in a sexual harassment investigation. That duty was found to consist primarily of a requirement that the person accused of harassment be aware of all the material allegations against him and be provided with an adequate opportunity to be heard prior to the making of the decision which significantly impacted his reputation and career. This board in the DaSilva matter adopted a similar approach in regards to the terms and conditions of employment of excluded employees, holding that the employer holds a fundamental duty to treat those accused of a serious breach of the Human Rights Code with fairness, whether the complaint is pursued under the WDHP or by way of grievance. [18] Although the allegations made against Mr. Cardoza were not of sexual harassment in the sense of those in the Masters or DaSilva matters, they did involve harassment on the basis of gender. This difference in the allegations is not a sufficient basis to find that Mr. Cardoza was not owed a similar duty of fairness, as Ms. MacDonald’s accusations were of a very serious nature and had significant potential for damaging his reputation and career. I note that, as it turned out, once investigated, it was found that the facts in the DaSilva matter did not actually concern sexual harassment in any event, but were rooted in a disagreement over vacation leave and other allegations inherently less damaging to reputation than accusations of sexual harassment. [19] The employer did not reject the idea that it was required to treat Mr. Cardoza fairly. Its response to the allegations in this respect was more to the effect that there were other obligations and rights involved which would mean that there was no breach of such a duty. Specifically, the employer submits that it was within its rights not to discipline Ms. MacDonald for the infractions alleged by Mr. Cardoza and not to report back to him about them. Further, it is the employer’s position that it was entitled to provide information about her accusations to Mr. Cardoza within the mediation and fact-finding processes it chose, rather than before, and that the re-assignment, being to an equivalent position in terms of - 10 - remuneration and overtime opportunities, should be seen to be something within management’s rights. [20] Moreover, employer counsel emphasizes that the employer was required to deal with Ms. MacDonald’s extensive use of the formal processes available to her. The complainant does not dispute this, but maintains that a similar duty is owed him to deal with the issues he raised at various points in the unfolding of this matter. [21] In any event, it is undisputed that, in respect of Ms. MacDonald’s complaints, the WDHP policy applied to Mr. Cardoza as well. The WDHP policy applicable at the time of the events here in question contains a provision that both respondents and complainants must have access to enough information about the allegations and response of other parties and witnesses to enable them to make a defence or a rebuttal. As well, parties, which include a respondent such as Mr. Cardoza, are to be notified of discipline or other appropriate action within 30 working days of receiving an investigator’s final report. One of the principles set out in the WDHP policy provides that all aspects of the process are to be fair, responsive, timely and to aim to preserve the dignity, self-respect and rights of all parties. Another provides that the employer is committed to using alternative dispute resolution (ADR) processes and resolution of discrimination and harassment, as soon as possible, and in a way that least disrupts ongoing working relationships. [22] Concerning its handling of Ms. MacDonald’s complaints, the employer urges the Board to find that the employer has a right to settle grievances without giving third party notice to accused employees. Employer counsel urged the Board not to disturb the long-standing practice that grievances could be resolved without third-party notice to persons such as Mr. Cardoza. I do not find it necessary or appropriate to make findings on any question of practice concerning third party notice, for a number of reasons. Third party notice refers to official notice of proceedings and some right to participate, something determined on a case by case basis, if the issue is raised. Ms. MacDonald’s grievance was before a different tribunal, the Ontario Crown Employees Grievance Settlement Board, which controls its own procedure. Moreover, the evidence did not deal with what the practice in this regard has been. More importantly for our purposes, regardless of what an individual manager’s rights - 11 - may or may not be found to be in any given case within the grievance or arbitration process between the union and the employer, it is not determinative of what this Board finds Mr. Cardoza’s rights to be under his own employment contract. In any event, the remedies the complainant seeks are individual in nature, rather than at the level of the employer’s practice in respect of formal third party notice. [23] It is nonetheless worth noting in passing that there is some precedent for giving notice of proceedings to managers in the position of having a grievance “against” them in the sense of asking for specific negative consequences to the manager, particularly where the interests of the employer and the manager may diverge. See, in the context of arbitration under a collective agreement, the text Canadian Labour Arbitration, by Brown and Beatty, section 3:1210, “Entitlement to Participate”, and Tenaquip Ltd. and Teamsters Canada, Loc. 419, (2002), 112 L.A.C. (4th) 60 (E . Newman) and Re C.U.P.E. and O.P.E.I.U. (1982), 4 L.A.C. (3d) 385 (Swinton). In the context of a case involving accusations made by other employees excluded from collective bargaining who had grieved to this Board, see Mously and Ministry of Community Safety and Correctional Services, P-2010-0433, decision dated December 15, 2010 (O’Neil). [24] Counsel for Mr. Cardoza submits that it is an implied term of contract in the Ontario Public Service that the employer will respond to complaints, in a reasonable, timely way, something recognized in Canada Post Corporation v. Canadian Union of Postal Workers, (1983) 11 L.A.C. (3d) 13 (Norman). At the most basic level, it is submitted that the employer must respond to communications, and not withhold important information, especially where it is repeatedly requested. Reference is made to the decision of this Board in Shilman, cited above, where a breach of the employer’s obligation to treat that grievor in a fair and equitable manner was found based on withholding information from the grievor about the status of the job which it was offering to her, thereby causing her to act to her detriment in accepting it. There is no evidence of what response times were expected in general for responding to communications, so it is not possible to be specific about any period of time in which the employer might be required to reply to communications. Nonetheless, it is not disputed that the employer is required to act in a reasonable, non-arbitrary manner; the allegations about lack of timely response will be addressed in that framework below. - 12 - [25] In terms of requirements to respond, employer counsel notes that once this grievance had been filed, section 9 (5) of Regulation 378/07 contemplates circumstances where the Deputy Minister does not respond and in those circumstances, the grievance merely goes forward to the PSGB. There is consequently no obligation to participate in the resolution process before it gets to the Board, in the employer's submission. Counsel for the complainant did not specifically dispute this point, but argues that the general lack of response to the grievor’s concerns and specific failure to respond to his initiatives to resolve the situation shows unfair treatment. c. Other terms and conditions of employment [26] The parties agree about the existence of other terms and conditions of employment, but disagree about their importance or application to various aspects of this matter. For instance, there is no dispute that Mr. Cardoza’s superiors had the authority to decide against discipline of a CO, despite his recommendation, or that the employer has the right to transfer an OM to an equivalent position, but the parties disagree on whether the manner in which the relevant decisions were made or implemented was fair in this case. There is no dispute that an equivalent position in the period involved would have included access to significant overtime opportunities. [27] As well, employer counsel acknowledged the obligation not to dismiss an employee, directly or constructively, without cause, as a basis to her arguments that there was no breach of these obligations. [28] Further, employer counsel asserted that there was an obligation on Mr. Cardoza as part of his contract of employment not to unreasonably or unilaterally withdraw his services so as to deprive the employer of the benefit of the employment contract. In these circumstances the employer argued that it was not required to continue salary and benefits and would have been entitled to treat the employment as abandoned. Instead, very generously, in its view, the employer continued to pay salary, but argues that this does not constitute an admission of any obligation to have done so. Accordingly, the Board is urged to find that this does not detract from the employer's position that the complainant’s terms and conditions of employment - 13 - were not breached. I agree that the payment of salary during a period where Mr. Cardoza was not reporting to work, except for a few meetings, does not resolve the issue of whether his contract of employment was breached. Rather, it signals a change in his terms and conditions of employment for that period of time. [29] By contrast, complainant’s counsel emphasizes Mr. Cardoza had the right not to return to work which was unsafe. Although counsel implicitly acknowledged that Mr. Cardoza would have had the obligation to follow legal direction to work at another institution, or to return to work which was not unsafe, he argued that no such obligation arose in this case as the employer did not order him to return to work, but continued to authorize a paid leave. [30] The question then is whether the terms and conditions of employment discussed above have been breached by the employer. II. Did the employer breach Mr. Cardoza’s terms and conditions of employment? a) Further facts [31] As noted above, I have found that the employer owed Mr. Cardoza a duty of fairness in handling Ms. MacDonald’s allegations against him, whether in the form of WDHP complaints or grievances. The question arising from the case law is whether the process adopted by the employer was fair to the accused in the circumstances. To understand the answer to that question below, it is necessary to provide more detail about the factual circumstances. [32] The problems which had developed by 2008 appear to have gathered force after a March 10, 2008 incident in which Mr. Cardoza found CO MacDonald to be insubordinate when she was assigned to Central Control, and he was working at the General Duty desk. There is no dispute that in that situation, Mr. Cardoza was in charge, and she would have been required to follow his lawful orders. He says she was responsible for a serious breach of security when she failed to comply with his instructions to open a door which prevented him from - 14 - securing an inmate while waiting for assigned staff to attend the unit. Very shortly after, he wrote her and his superiors about his serious concern about her actions. [33] For her part, CO MacDonald, according to the written accounts before me, as she did not testify, found his communication to her to be rude and unprofessional, and did not consider it a direct order. Her report explained what she asserted was a very short delay in opening the door for Mr. Cardoza, by saying that other staff were on the way. In the occurrence report she submitted to Superintendent Paul Greer in response to Mr. Cardoza’s request, she characterized Mr. Cardoza’s behaviour towards her as vindictive and provocative and his management style as continuing to poison her work environment. There were other incidents between the two both before and after, which need not be detailed here, but this one is perhaps most illustrative of the two points of view underlying the dynamic between OM Cardoza and CO MacDonald. [34] Mr. Greer testified that senior management reviewed the two reports and decided that Ms. MacDonald would not be required to attend an allegation meeting, a pre-condition to discipline, as the reports from the CO and OM Cardoza were at opposite extremes. Nonetheless, he did not think Mr. Cardoza’s complaints about CO MacDonald’s behaviour were frivolous. [35] It was not argued, and I do not find, that it was a term or condition of Mr. Cardoza's employment that Ms. MacDonald should have been disciplined or called to account in a formal way on his recommendation alone. However, it is relevant to consider his efforts to bring her to account as part of evaluating the employer's argument that Mr. Cardoza was the author of his own misfortune and that his failure to engage in early informal resolution of the situation with CO MacDonald was unreasonable. According to Mr. Cardoza, no one at any time told him that his reports of insubordination were not considered worthy of disciplinary action. He continued to press senior management to address the situation, which should have involved, in his view, adjudicating his complaints, so a proper decision could be made about disciplining CO MacDonald. - 15 - [36] By contrast, Superintendent Greer testified that he had let Mr. Cardoza know they were not going to take action against CO MacDonald. However, he was unable to say what he or someone else, such as the deputy superintendents who were involved at various points, might have said in this regard. Nor could he recall when, or on what occasion, except that he thought the earliest he might have told Mr. Cardoza would be January 2009, i.e. approximately nine months after the March occurrence reports were submitted. There is no written record, e-mail or note of any such conversation, despite a significant number of e- mail exchanges in evidence. Mr. Greer testified about this matter almost three years after the March 2008 event, and approaching two years after his retirement in the spring of 2009, and thus his inability to recall these details is unsurprising, due to the passage of time and his focus on other things, leading up to and since his departure from the Ministry. [37] As well, it is clear from all the evidence that the events were of more vivid personal importance to Mr. Cardoza than they were to Mr. Greer, who was vague in his memory of many of the conversations and details of what happened, during a period of time when many other things were going on, above and beyond the normal demands of the busy life of a superintendent in a correctional facility. By early 2009, he had in fact delegated the issues concerning Mr. Cardoza to Deputy Superintendent Tony Roth, because of other matters requiring his attention, such as the dozens of work refusals arising from the tense labour relations situation in the months immediately preceding that year’s strike deadline, and his retirement from a lengthy career. It is likely that Mr. Greer believed that it was obvious they were not taking action against the CO, many months after the March event, especially after he communicated the interim settlement of her grievance and Mr. Cardoza’s pending re- assignment in November, 2008. It also appears likely that Mr. Greer did not grasp the depth of Mr. Cardoza’s conviction that she was seriously out of line, and his proportionate incredulity that senior management would let the reported infractions go unaddressed. [38] In all the circumstances, I accept Mr. Cardoza’s evidence that it was never made explicit to him that no action was to be taken against Ms. MacDonald, and that up to the hearing of this matter, he did not know what had been done about his reports of what he considered her repeated insubordination. I agree with his counsel’s submission that it does not make sense, in the context of all the events in evidence, that an experienced OM would have continued to - 16 - press senior management for action against a CO if he had already been told a decision had been made not to even do an internal adjudication of the allegations, much less discipline her. This is supported by the fact that when Mr. Cardoza sent an e-mail on January 4, 2009 to Mr. Greer, complaining that he had received no response on any of the issues created by CO MacDonald, Mr. Greer did not respond in any way to clear up what would have been a serious misapprehension on Mr. Cardoza’s part if the sequence he recalls were accurate. [39] In coming to the above conclusion, I have considered employer counsel’s argument that Mr. Greer’s evidence should be preferred as, especially since his retirement, he had less interest in the outcome of this matter than Mr. Cardoza, who has claimed substantial damages. Although I accept that Mr. Greer has less investment in the outcome since he is no longer employed in the Ministry, I have concluded, based on the considerations above, that it is more in accord with the preponderance of probabilities flowing from the undisputed portion of the facts that Mr. Cardoza had not been specifically advised that senior management had decided not to pursue his allegations against CO MacDonald. This is the only factual matter on which Mr. Cardoza’s evidence does not accord with that of the management witnesses, and it is the kind of detail that I find it very likely he had more reason to remember than anyone else. In any event, and even if I had found Mr. Greer’s recollection to be the more accurate, and Mr. Cardoza had been advised for the first time around January, 2009 of senior management’s decision not to discipline Ms. MacDonald, the first settlement adverse to Mr. Cardoza’s interests, as well as the events which lead to the second, had already occurred. Thus, he would already have lost any additional ability to respond to the actual situation which earlier clarity from senior management might have afforded him. [40] In March 2008, Deputy Superintendent Singleton attempted to arrange a mediation session between Mr. Cardoza and Ms. MacDonald. He declined, as he thought it was not appropriate before the insubordination issue was addressed. Senior management was trying to deal with the issue between Mr. Cardoza and Ms. MacDonald by defusing it with informal procedures, which Mr. Cardoza found so inappropriate in a situation that he considered to involve serious insubordination that I am convinced that he did not see the offers of mediation as addressing the problem at all. As I have found just above, he had not been informed of senior management’s decision not to proceed to adjudication of the reported infractions, so he was - 17 - operating without a realistic information base, which might well have put the offers of mediation in another light. [41] On May 17, 2008, CO MacDonald filed a grievance alleging discipline and harassment, in relation to Mr. Cardoza’s interactions with her, but he was not advised of this until after its interim settlement in November. A few days later, on May 20, 2008 Ms. MacDonald also filed a complaint under the WDHP policy, citing the March 10 door incident, as well as a few others from 2008, asserting shat she had been targeted by Mr. Cardoza in an effort to poison her work environment for the past two years. Although the particulars are not all before me, there was at least a significant overlap in the subject matter of the CO’s WDHP complaint and the grievance. [42] Mr. Cardoza was not informed of the complaint, which was dealt with by the deputy superintendent by writing to Ms. Mac Donald on June 11, 2008, indicating that it did not appear to be based on any of the prohibited grounds listed in the WDHP policy. Management did not pursue this complaint further. It is of note that, although the WDHP policy states that during “the resolution of possible violations” a respondent is entitled to enough information to prepare a rebuttal, it was not argued that management was required to formally advise Mr. Cardoza of this first complaint, as no action was taken on it. Nonetheless, many of the same issues were still outstanding because of the grievance. [43] On November 7 and 12, 2008, two incidents occurred in which once again Mr. Cardoza felt CO MacDonald was acting in an insubordinate manner, and she thought he was being unprofessional and treating her unfairly. The details of these are not important here, but the day after the second of these, November 13, 2008, was the day CO MacDonald’s first grievance came on for a mediation/arbitration session at the institution. Superintendent Greer agreed to an interim settlement, which, in most relevant part for our purposes, provided that Mr. Cardoza was not to supervise her, and was to engage in mediation with her. [44] Mr. Greer testified that going into the November 13, 2008 meeting at which the first MacDonald grievance was settled, it was his view that there was no merit to the CO’s grievance. By the end of the day, he had come to believe that the presiding Vice-Chair - 18 - would make an order over which he had no control if he did not sign the settlement proposed. He decided to act on advice from Human Resources staff that it was better to settle, as an interim measure, after securing a provision which he thought would enable both Mr. Cardoza and the Correctional Officer to work overtime. He said he did not have time to check the information with Mr. Cardoza because it was late in the day on the last day of that mediation/arbitration session. [45] Mr. Greer informed Mr. Cardoza of this settlement and resulting change of assignment on November 18, 2008. This was the first that Mr. Cardoza had heard about the grievance or any allegations against him, despite several conversations with his superiors about Ms. MacDonald’s behaviour. However, he said he suspected CO MacDonald had written reports about him each time he had reported her infractions to his superiors. [46] The news of the reassignment shocked and upset Mr. Cardoza, who felt he had done nothing wrong. He spoke and wrote to Mr. Greer about the settlement, trying to find an alternative to the proposed change of assignment to regular floor duty. Mr. Greer acknowledged in his evidence that Mr. Cardoza had told him the settlement had a very big impact on him, and had proposed alternatives to him. Although it is conceded that the employer has the right to change assignments, and that the transfer from the general desk to floor duty did not entail a reduction in pay, Mr. Cardoza's uncontradicted evidence was that the general duty assignment that he had had was a preferred assignment, and one with more scope and authority than the one to which he was transferred. [47] Further, and more important for our purposes, it quickly became known in the institution, through the usual informal communications networks active among staff, that the reassignment followed upon CO MacDonald's grievance, and that he was not allowed to supervise her. Others took this as a sign that Mr. Cardoza had done something wrong. He testified, again without contradiction, that he was taunted about the change by certain members of the staff who reported to him, who suggested that he had been "screwed", and that this is what he got for being a "company man". On another occasion, when arriving at work, he was greeted by derogatory suggestions that Ms. MacDonald’s work location was out of bounds for him. - 19 - [48] Mr. Cardoza testified that Mr. Greer told him frankly that he should not have signed the settlement, and no suggestion was made in Mr. Greer’s evidence that this was inaccurate. To similar effect, Ms. MacDonald’s chronology, presented to the superintendent’s office at the same time as her second WDHP complaint, indicates that Mr. Greer had told her on November 14, 2008, the day after the interim settlement, that it was unworkable and impossible to implement without infringing the rights of one or the other of them. Two days later, November 16, Mr. Cardoza was assigned as her direct supervisor for two hours. The evidence is not clear whether this was a result of an overtime assignment, as other evidence indicated that their regular schedules did not overlap until January. Mr. Greer’s evidence was that it might have been an inadvertent scheduling on a regular day shift, while complainant’s counsel characterized it as an overtime shift, which should not have been considered a breach of the settlement. [49] On November 21, 2008, about a week after the interim settlement of the grievance that dealt with many of the same facts, Ms. MacDonald filed a second WDHP complaint alleging that many of the incidents complained of in her earlier WDHP complaint, as well as more recent incidents of conflict with Mr. Cardoza, constituted harassment on the basis of her gender. Mr. Cardoza testified, without contradiction, that he was not made aware of the second WDHP complaint until 2011, well into the hearing of this matter. [50] There was a further incident on December 4, 2008, in which Ms. MacDonald thought Mr. Cardoza was flaunting his authority by intruding on her working space and bypassing normal procedure for returning keys and radios. She grieved a second time on December 12, 2008, including an allegation of breach of the interim settlement because of the November 16 assignment during which she was supervised by him. [51] Deputy Superintendent Tony Roth asked Mr. Cardoza for a report concerning the December 4 incident which he delivered as requested by confidential envelope in the institution’s overnight mail. For some unknown reason, it did not reach Mr. Roth, who requested it a second time, by e-mail. In replying for the second time, Mr. Cardoza attached a memo dated December 13 to the superintendent, which stated that he expected to be kept updated as to the progress of the matter in a timely manner and provided with any and all reports. He - 20 - concluded saying, "This is ongoing harassment and has effectively poisoned the work environment." He explained in his evidence that, by this time, he felt harassed by both the CO and the administration. In his view, in the incident in question, he had simply gone into the office where Ms. MacDonald was stationed to get something he needed. As he saw it, by requiring a report about such an event and then not following up or giving him any information about the progress of previous incidents, management was engaged in harassment and consequently creating a poisoned work environment. He received no response to his December 13 e-mail. [52] In the interim, the administration had received advice from the Ministry’s Workplace Effectiveness Branch to the effect that assigning CO MacDonald’s second WDHP complaint to an investigator was premature and that a fact-finding exercise to determine if there was a sufficient link between the alleged conduct and any of the protected grounds was the better route. Mediation was once again suggested as well. [53] Mr. Cardoza wrote the superintendent an e-mail again on January 4, 2009, expressing his frustration at the lack of response to any of the issues created by CO MacDonald and setting out in bold letters that he had not been given an "iota of information" about any of the details for which he had been held responsible and repeated a request for disclosure of information. He indicated that he was facing an undercurrent of being undermined "on every occasion that arises" by several employees. He referenced conversations with the superintendent and deputies in which he had reported and discussed incidents in which they agreed these matters were not of his doing. He wrote as well that the situation, and especially the proposed reassignment, had negatively impacted his mental and physical health and all his social interactions, both at and away from work. [54] The superintendent responded with a one line e-mail dated January 9, 2009 indicating he was not able to release any of the requested materials. Mr. Cardoza explained that this reply was given when he was in the superintendent's office to receive the confirmation of his transfer out of the general duty officer position to work out of the sixth and seventh floor duty office, until further notice. In the presence of representatives from Human Resources, Mr. Cardoza said that he spoke of his numerous requests for material relating to the complaints or - 21 - grievances, to which the superintendent replied, "You can't have it". Mr. Cardoza asked him to at least put it in writing, which Mr. Greer did on the spot. Mr. Greer testified he was not permitted to give out occurrence reports without an official process, such as a legal requirement flowing from a subpoena or hearing. There was no indication that, at this or any other time, he had considered the procedural and information requirements under the WDHP policy flowing from CO MacDonald’s complaints. [55] A few days later, on January 13, 2009, a further settlement of Ms. MacDonald’s grievances was concluded, without further information to, or consultation with, Mr. Cardoza, continuing the separation between Mr. Cardoza and Ms. MacDonald. Mr. Greer offered no explanation for why he did not seek further information from Mr. Cardoza in the period between the two settlements, given that one of the reasons he said he had wanted the first settlement to be an interim one was that he needed more information about the issues raised about Mr. Cardoza. Mr. Greer acknowledged he had been made aware of the impact of the reassignment on Mr. Cardoza by the time of the second settlement. [56] The second settlement mandated a session with a mediator specializing in workplace restoration, to be held no later than 45 days from the signing of the memorandum of settlement, and pending the conclusion of what was referred to as the “current review”, which presumably refers to the fact-finding being done as part of the WDHP process. Given that there was no time line on the latter, it amounted to an indefinite continuation of Mr. Cardoza’s reassignment. [57] An important part of the context in early 2009 was the approaching strike deadline in the employer's negotiations with the Ontario Public Service Employees Union (OPSEU). The general labour relations atmosphere was described as confrontational and tense by several witnesses. Various actions were taken by OPSEU staff to support their bargaining demands and demonstrate their collective strength. This included a day when 90 CO’s refused to come into work, the procedural fallout from which Mr. Greer was handling personally. Mr. Greer testified that any lack of responsiveness from CO’s to Mr. Cardoza in the period in question was at least in part due to labour tension, as the CO’s were generally less responsive to instructions in the period leading up to the strike deadline. The new contract was - 22 - stipulated to have been ratified on February 26, 2009. Nonetheless, it appeared to be common ground that things did not immediately return to normal as not all the CO’s were content with the new contract. [58] Arrangements were made with the Regional Office for third parties to be appointed for the two concurrent processes still outstanding in early 2009 in regards to issues raised by CO MacDonald, i.e., the mediation mandated by the second grievance settlement, and the fact- finding flowing from the second WDHP complaint. Ms. Heather Swartz was engaged to conduct the mediation flowing from the grievance settlement. She met separately with Mr. Cardoza and Ms. MacDonald on February 19, 2009. At this point he still did not have any information about the allegations made by Ms. MacDonald or what exactly was being mediated. Mr. Cardoza attended at the direction of the Deputy Superintendent, who told him it had been ordered by a Vice-Chair of the Grievance Settlement Board. Mr. Cardoza testified that Ms. Swartz had formed the impression that there was a personality conflict, and was unaware of the supervisory issues that he had raised, so he gave her copies of the occurrence reports he had filed with senior management. He and Ms. Swartz discussed the matter and agreed that a joint session should await the outcome of the fact-finding process. She reported back to the administration that she would be unable to schedule a joint session until after the concurrent processes (fact-finding and occurrence report processes). There is no evidence that Ms. Swartz was informed that there was no occurrence report process outstanding because the administration had decided not to act on Mr. Cardoza’s occurrence reports. [59] The second process outstanding in early 2009 was the fact finding under the WDHP policy, for which Ms. Gail Desabrais, Deputy Superintendent at Toronto East Detention Centre, had been designated. Mr. Cardoza's understanding of the fact-finding process was that Mr. Greer wanted the CO’s allegations reviewed to see if they fell under the WDHP, while Mr. Cardoza wanted them investigated for their veracity. It appears that Mr. Cardoza thought that Mr. Greer’s desire for a fact-finding arose from the allegations in the grievance, as he was not aware until much later that there was also an outstanding WDHP process. In any event, Mr. Cardoza met with Ms. Desabrais on February 13 and since he had still not been informed of what allegations Ms. MacDonald had made, she sent him a "gist list" on February 23, the - 23 - first notification he had had of the allegations against him, some of which had been made over eight months earlier in May 2008. Some of the events apparently dated back to 2005. Mr. Cardoza was later interviewed at length by Ms. Desabrais on March 26, 2009. [60] After his initial meetings with Ms. Swartz and Ms. Desabrais, Mr. Cardoza asked for a meeting with Mr. Greer. This meeting was held on February 23, 2009 and they discussed what would happen next. Mr. Greer indicated he considered that the Minutes of Settlement had been complied with, as the fact-finding process was not part of the Minutes of Settlement, so that all he needed to do was consult with the Regional Office, and Mr. Cardoza would be able to go back to his position as General Duty Manager. Other alternatives were discussed, including his being given a non-operational assignment until things returned to normal, or at least when Ms. MacDonald was on duty. Mr. Greer testified that the idea of non-operational duties had been discussed with the Region who, for budgetary reasons, did not agree. At some point, Mr. Greer asked Mr. Cardoza if he wanted to work at another institution, Maplehurst Correctional Centre, but Mr. Cardoza did not express interest. There was no evidence that such an opportunity had been specifically identified as available, or that Mr. Cardoza was ever given any details of such a possible assignment, or that Mr. Greer gave him to understand he ought to go there, much less that he had been directed to. [61] Mr. Cardoza reported feeling hopeful after the February meeting that the matter was coming to a positive resolution at his own institution. He received the e-mail from Ms. Desabrais with the summary of the allegations the next day, but did not access them until later, as Mr. Cardoza and Mr. Greer had discussed leaving it until after the latter had a chance to consult with the Regional Office. When Mr. Cardoza did access the list of allegations a couple of days later, he experienced an episode of dizziness and palpitations which required him to be taken to the hospital. He was sent home from hospital the same day, but missed four shifts of work as a result. A Workers’ Safety and Insurance Board (WSIB) health professional report filled on March 2, 2009 by his doctor lists the injury as an anxiety attack. It was stipulated that a WSIB Employer's Report of Injury/Disease (Form 7) was filed by the employer. Nonetheless, Mr. Cardoza never received any communication or benefits from the WSIB. - 24 - Nor is there any argument that any of Mr. Cardoza's claims are within the jurisdiction of the WSIB. [62] While he was off for this first period, Mr. Cardoza e-mailed Deputy Superintendent Verrinder on March 4, 2009, summarizing his view of the situation at that point. Specifically, he said he had complied with everything that he was required to do, even though the requirements emanated from what he viewed as illegal proceedings and the mishandling of the administration, which continued to cause negative emotional and physical consequences. He noted that at a meeting on February 23, 2009, the Superintendent had committed to either a resolution of the issues with CO MacDonald or a re-assignment to non-operational duties on her scheduled shifts, and that he was to have received a response by Friday February 27, which had not occurred. Instead of a response from senior management that he had been looking for, Mr. Cardoza wrote that he had found the allegations list from Ms. Desabrais, and ended up in the hospital. The Deputy Superintendent responded by inquiring on March 4 how long Mr. Cardoza's doctor had scheduled him off. Mr. Cardoza did not reply as he returned to work the following weekend. [63] After that, Mr. Cardoza worked until March 12. As he had heard nothing about his return to the general duty assignment, he went to see Mr. Greer to inquire. Mr. Cardoza's uncontradicted evidence is that Mr. Greer simply looked at him without replying. Mr. Cardoza had told Mr. Greer in the meeting of February 23 that if the situation continued he would not be able to work in the institution and Mr. Greer had given him the impression he was consulting the Regional Office. Since he was now getting no response, Mr. Cardoza told Mr. Greer that he would go to the Regional Office himself. He told him he could not return to the institution as it was, but would be glad to come back when the situation was fixed. [64] The situation, as Mr. Cardoza was experiencing it, was that he was getting deliberate disrespect from certain staff and had to repeat instructions numerous times, which were often met with crass remarks. He felt his authority was totally undermined; in an emergency his safety and those of others would depend on their not being insubordinate. He felt powerless to change the situation without the support of the senior administration, and was experiencing repeated anxiety attacks. Remarks both supporting him and deriding him constantly - 25 - reminded him that he had been required to bear the lion’s share of the responsibility for the situation with CO MacDonald, when he felt he had done nothing wrong. He testified that he had explicitly reported all these things verbally to Mr. Greer on February 23 and March 12. He had not filed any incident reports concerning the behaviour of the people reporting to him, which Mr. Greer testified he told Mr. Cardoza he required in order to take any action on his complaints. Mr. Cardoza said that he could not say anything to the remarks because it was part of the dynamics at the time, and that if he had filed a report every time he received personal insults or was ridiculed he would have been writing volumes. [65] After leaving Mr. Greer on March 12, Mr. Cardoza went to the Regional Office to speak to Mike Conry, Regional Director, whom he had known for years, having earlier reported to him when Mr. Conry served as superintendent at Metro West. Mr. Conry was not in, so Mr. Cardoza spoke to the Deputy Regional Director who assured him the Regional Office was aware of the situation. Mr. Cardoza went home, as he felt he would be risking his health to return to work at the institution. [66] The next Mr. Cardoza heard was almost three weeks later when the superintendent wrote regarding his having missed a shift on March 17. Mr. Cardoza responded on April 8, 2009 with a memo to Superintendent Greer stressing his view that he had been undermined to the detriment of his health and ability to work in the institution. Mr. Cardoza’s memo states that since November 17, 2008 he had been offering alternatives that would have enabled the administration to meet its obligations under the minutes of settlement, and complains that the superintendent had not acknowledged or implemented any of the suggestions he had made nor offered any others, despite having acknowledged he was wrong to have entered into the settlement. He wrote that it went against his work ethic to be off on leave but that he was forced into it with no other choice. He asked to be kept fully apprised and to be involved in activities, training meetings and be provided with information about any changes in policy or anything relevant to his job that he would have had in the absence of the situation he found himself in. He closed with a statement that over the past 22 years he had demonstrated loyalty in spite of the repeated inequities that he had endured, stressing that he was open to consider any constructive restorative suggestion that would include at a minimum his status prior to November 13, 2008. He received no response. - 26 - [67] Mr. Greer’s explanation about the initial delay in inquiring about Mr. Cardoza’s status was that it was a very busy time. He said that between March 17 and the time that he left the Ministry in early May to retire, he was not aware of any particular steps taken to get Mr. Cardoza back to work. He said he would normally have sent a letter asking for medical evidence in April, but he was directed not to by the Regional Office. As to Mr. Cardoza’s request to be involved in such things as training, Mr. Greer testified he was not clear if Mr. Cardoza was well enough to come in, so until he received clarification, he would not direct anyone to do the things Mr. Cardoza was requesting. [68] Because of his personal values, Mr. Cardoza was very uncomfortable staying at home and being paid. During his absence, he received calls both from well-wishers and others deriding him for being a freeloader, but was not contacted in regards to his request for updates and to be included in training, nor about the annual pay for performance process. [69] Having been unable to resolve the situation himself, Mr. Cardoza retained counsel who wrote Mr. Conry on May 5, stressing Mr. Cardoza's desire to avoid formal legal proceedings, and inviting discussions toward a mutually acceptable solution, in default of which legal proceedings would be commenced. Having received no response, counsel wrote again on June 17, 2009, referencing his earlier letter as well as the continuing ill effects of the handling of the situation with CO MacDonald by the Ministry and Mr. Cardoza’s subsequent inability to return to the workplace. He further noted that the Ministry’s failure to take any steps to resolve the matter or even answer his correspondence was troubling and disrespectful to Mr. Cardoza. He asked for a reply by June 23, in default of which legal proceedings would follow. There was no reply. Mr. Conry testified that once legal proceedings were mentioned, the matter would have been referred to Ministry counsel. [70] On July 17, 2009, counsel wrote Deputy Minister Hope seeking resolution and copying his correspondence to Mr. Conry. Again there was no reply. On August 5, this grievance was filed with the Board. [71] Despite the lack of response to the correspondence, Mr. Cardoza had spoken with both Mr. Conry and the acting Assistant Deputy Minister, Margaret Welch, at and around the time of a - 27 - conference organized for the membership of the Council for Unity of Racialized Employees (CURE), which took place in late June. Mr. Cardoza testified that Ms. Welch asked him if he was willing to take up an assignment working on the standing orders at a correctional facility in London, an offer which he thought was unrelated to the situation with CO MacDonald. He mentioned the idea to Mr. Conry, who was also at the conference, and was told to go ahead. When Mr. Conry asked about medical documentation in this context, Mr. Cardoza informed him he was not on sick leave and referred him to Mr. Greer as to his status. On June 22, Mr. Conry e-mailed Mr. Cardoza about the proposed assignment in London, asking him to confirm he was considering it and also to confirm whether he could provide a medical certificate to confirm fitness. Mr. Cardoza first replied saying he was copying his counsel and wishing to confirm that the assignment did not address the issues arising out of the Memorandum of Settlement of Ms. MacDonald's grievances. [72] On June 30, 2009 Mr. Cardoza further replied to Mr. Conry saying he had spoken to an Operational Manager in London who had indicated the current task had been completed and that any further work on it would be in September. Mr. Cardoza signed off "awaiting further instructions", but heard nothing further. The parties stipulated that the possibility of this assignment was again discussed in settlement discussions in the fall of 2009 but the idea did not bear fruit. [73] On July 22, 2009 Ms. Desabrais filed her fact-finding report with Mr. Gary Calverley, then Deputy Regional Director for Central Region. It dealt with incidents raised by the respondent over the time span from 2005 to 2008. Although her report found the complaints and responses to be equally credible, she stated that none of Ms. MacDonald’s allegations were substantiated as violations of the WDHP policy and that a full investigation was not required in order to make a determination concerning them. She concluded her summary saying that the situation had gone on for a variety of reasons without appropriate intervention for too long. Although acknowledging it was a challenge, she suggested continued efforts to mediate, failing which, relocation of one of the two, as the status quo was not viable. Mr. Cardoza was not informed when the report came out, nor were further attempts made at arranging mediation. - 28 - [74] In the meantime, in May 2009, Mr. Anthony Valaitis had taken up the Superintendent’s post vacated by Mr. Greer’s retirement. Mr. Valaitis said that when Ms. Desabrais’ report came out, he likely was informed that that there were no violations of the WDHP. He did not recall being told that she had recommended mediation, or alternatively the relocation of one or the other of Mr. Cardoza or Ms. MacDonald. [75] During a brief overlap of three days with Mr. Greer, Mr. Valaitis had been given the impression that Mr. Cardoza was on sick leave and had likely reviewed correspondence from counsel which refers to negative health effects on Mr. Cardoza flowing from the ongoing situation. It was not until the second stage meeting of this grievance on September 4, 2009 that it became clear that he was not. After the September 4 meeting, there were unsuccessful settlement discussions. Mr. Valaitis testified that the Regional Office was primarily dealing with the matter until December 2009 when he took carriage of it. [76] The matter came on for mediation at the PSGB in January 2010. Following on conversations on that day, Mr. Cardoza contacted Superintendent Valaitis on January 31, 2010 to arrange to report for duty on February 2. Instead, Mr. Valaitis asked him to meet with him on February 3, as he needed to arrange things so that there would be no impediment to Mr. Cardoza’s working at the institution. He indicated alternative assignments could be possible, but with no specifics. He subsequently had discussions with the union and Ms. MacDonald, which resulted in the removal of any impediments to Mr. Cardoza’s return to his previous position or working with Ms. MacDonald. He reported this to Mr. Cardoza in a meeting on March 25, 2010, and later gave notice to him that his paid leave would end on May 7, 2010. [77] Mr. Cardoza returned to work to his previous General Duty position on May 10, 2011. There appeared to have been no problem with working with Ms. MacDonald up to the hearing of this matter. b. Considerations and conclusions on Breach [78] To return to the question: do the above facts disclose a breach of Mr. Cardoza’s terms and conditions of employment? - 29 - i. Duty of Fairness [79] Addressing first the duty of fairness, a process fair to Mr. Cardoza would have included at least making him aware of the material allegations against him and an adequate opportunity to rebut them prior to a decision adversely affecting him, both in respect of the grievance and the WDHP processes. It is my conclusion that the duty of fairness was breached as early as March 2008 when the employer asked Mr. Cardoza to mediate without informing him what was to be mediated, and then later that spring when the invitation to mediate was repeated without informing him that Ms. MacDonald had filed a grievance and a WDHP complaint, or what the allegations against him were. In the information void in which he was working, he should not be faulted for turning down the opportunity to mediate until the infractions he had brought to senior management’s attention were dealt with. The attempts at informal mediation were in line with the employer’s commitment to using alternate dispute resolution procedures, but adequate information is still essential to both a successful process and fairness to all the participants. Here, there is no evidence that Mr. Cardoza was given adequate information on which to make an informed decision about these early attempts at mediation. He was operating from the view that he had reported a serious breach of security, which was not something to be mediated without first clarifying the merits of the situation. He was essentially left in the dark as to the actual situation for many months during which Ms. MacDonald wrote reports, grieved, filed two WDHP complaints, and had the opportunity to collect evidence to strengthen her case. [80] Mr. Cardoza’s uncontradicted evidence was that during several discussions with his superiors about the issues that he had brought to their attention about Ms. MacDonald, he was never given any idea that they thought he was not handling the situation correctly, or that there were formal allegations against him. The first Mr. Cardoza knew of the idea that he ought not to be supervising her, or the existence of formal allegations against him, was after the interim settlement of the first grievance. [81] In regards to the CO’s grievance, the evidence does not persuade me that any process was adopted which considered Mr. Cardoza’s interest in an adequate way. Going into the first mediation/arbitration meeting, the superintendent had occurrence reports from Ms. - 30 - MacDonald and Mr. Cardoza, and would have been aware of the previous WDHP complaint, but there had been no opportunity for the OM to rebut what she alleged. Although the superintendent felt there was no justification for the grievance, as he did not feel corrective action had been taken against the CO, this turned out not to be an adequate information base, as Mr. Greer acknowledged in his evidence. When Mr. Greer was given to understand by the staff relations person representing the Ministry that day that the presiding Vice-Chair would be making an order if he did not sign the settlement, he did consider Mr. Cardoza’s interest to the extent of asking for amendments to the proposed wording, to make it possible for them both to work overtime. He said the settlement was called interim because he did not have enough information, and wanted more information about issues that had been brought up about Mr. Cardoza. He inquired after the fact about what the information was that had changed the view of the Human Resources representative. However, he did not then speak to Mr. Cardoza about those matters, despite having a meeting with him to let him know about the settlement, and several discussions in which Mr. Cardoza attempted to find a solution other than his reassignment and repeatedly asked for information. Nor did he tell him about the new WDHP complaint that had come in shortly after the settlement. Mr. Greer was clear that he did not have enough information to respond to the information presented to him in the first mediation/arbitration session. Whatever may be said of the time pressures of the first session, there was ample opportunity to discuss the substance of the matter with Mr. Cardoza between the first and the second settlements. [82] Mr. Greer said he had absolutely no concerns about Mr. Cardoza working in the institution while the fact-finding of the second WDHP complaint went on. Despite this, and despite having sought no further information from Mr. Cardoza about the allegations, he agreed to the second settlement on January 13, 2009, which concerned an alleged breach of the interim Minutes of Settlement. Counsel for the employer argued that the second grievance gave rise to a reasonable basis for Mr. Greer to conclude that the two could not be together in the workplace, but I do not find that the evidence supports this. Mr. Greer’s own evidence was not to this effect. Rather, he thought perhaps there had been an inadvertent scheduling error, and that the two had been scheduled on the same regular shift, and provided no other rationale for the fact that the employer conceded a breach or that information from Mr. Cardoza was not sought before his change of assignment was made indefinite. - 31 - [83] Although it is clear that the employer is entitled to settle grievances without the approval of employees negatively affected, for the above reasons, I find that the process adopted breached the duty of fairness to Mr. Cardoza. [84] As for the WDHP process, the policy itself contemplates that there will be information about allegations and opportunity to rebut statements made available to the respondent. It is true that Mr. Cardoza was eventually included in that process. However, by that time, months after the most recent events, which lead to Ms. MacDonald’s WDHP complaint, the grievance settlements had foreclosed any opportunity he might have had to rebut what Ms. MacDonald was saying at a time when it could have made a difference to the facts of which he complains. This is quite apart from the fact that, without timely notice of the allegations, he might well have been at a disadvantage defending himself, in the sense of gathering evidence about any disputed events, as memories fade, documents may not be preserved, and notes to later refresh one’s own memory may not be taken when one does not know something is in dispute. Indeed, Ms. Desabrais’ report mentions a number of incidents complained of by Ms. MacDonald that Mr. Cardoza could not recall at the time of his interview as part of the WDHP fact-finding in late February 2009. [85] See, in this respect, the decision of this Board in Di Gaetano and Ministry of Municipal Affairs and Housing October 26, 2000 PSGB P/0061/95, P/0015/96 (Walter) in which it was held that the employer breached the WDHP Directive in failing to act quickly and to provide specific information about what the grievor’s accuser was saying about him, impairing his ability to defend himself fully. It was also found that the employer improperly failed to not remain neutral in favouring the employee making the allegations against Mr. Di Gaetano in its handling of the matter. The Di Gaetano decision cites with approval Re Seneca College of Applied Arts and Technology and Ontario Public Service Employees Union (1996), 57 L.A.C. (4th) 343 (M.B. Keller) about the importance of procedural protections, including expeditious, detailed information about the allegations, for the person against whom allegations of harassment are made. I note that there is no issue here of the complainant’s wishing to keep the matter confidential influencing the employer’s actions as there was in the Di Gaetano case. - 32 - [86] Employer counsel submitted that the employer was within its rights not to disclose Ms. MacDonald's allegations outside the fact-finding or mediation process. Although that may be so, if done in a timely way, it is not an answer to the fact that in this case, this was not done in a way which protected Mr. Cardoza’s rights to a fair process or gave him enough information to make informed decisions, for instance about mediation or the necessity to gather information to defend himself. As to what is a timely fashion, some assistance is provided by the WDHP policy itself. Although there is no time line specified in the WDHP procedure for advising the respondent of the allegations against him, the policy articulates an expectation that an attempt will be made to resolve the whole complaint within thirty days. From this it is fair to infer that the information should normally be provided to the person against whom the allegations are made within days or weeks instead of months. I do appreciate that it is possible that, in not informing Mr. Cardoza of the allegations at an early stage, employer representatives may have been trying to minimize disruption to the workplace. In this respect, the facts of this case may serve as a cautionary tale, as they demonstrate that the disruption was merely deferred and made more difficult to manage as a result. [87] As noted by Mr. Cardoza’s counsel, why Mr. Cardoza had to be reassigned still has not been explained. Counsel queries whether it is just easier to impose burdens on managers because the Correctional Officer was represented by a union. By contrast, employer counsel noted that a beneficial effect of the reassignment was that it protected Mr. Cardoza from further allegations. As to the settlement of the grievance, employer counsel notes the context of the mediation/arbitration system used to deal with a high volume of grievances. Counsel stressed that there were no lawyers available, and that the superintendent felt that there would be an order if he did not sign the proposed settlement, highlighting the effort made in adding a provision that they could both work overtime which would lessen the impact on Mr. Cardoza. [88] Although there were limits on what could be said in evidence concerning the confidential parts of the mediation/arbitration process, this did not prevent an explanation of the rationale for the necessity of the separation, or its continuation in the second settlement, surely an opportunity to correct a situation that had already been deemed unworkable by Mr. Greer. - 33 - And although in theory the agreement to keep Mr. Cardoza from supervising Ms. MacDonald may have been thought to prevent further allegations, in practice that was not the case. A week after the interim settlement, Ms. MacDonald filed the second WDHP complaint, and shortly thereafter, as a result of the also unexplained assignment of the two together, a grievance alleging breach of the settlement. [89] In respect of the alleged breach of the first settlement, it appears from what evidence there is, that either the terms of the first settlement were not communicated in a manner which prevented Mr. Cardoza from being scheduled to supervise Ms. MacDonald, or the employer conceded a violation on an overtime shift which the first settlement was supposed to have allowed. In neither case does it appear that Mr. Cardoza’s interests were sufficiently considered, despite Mr. Cardoza’s communication of the impact on him in the interim and his repeated requests for information. [90] Counsel for Mr. Cardoza characterizes the above as callous and contemptuous treatment of a loyal manager with 22 years service. He underlines that, having received no response from his own efforts, the grievor retained counsel who made further attempts to get a response from the employer, which were also ignored. Mr. Cardoza’s counsel emphasized that, as recorded in Ms. Desabrais’ report, this sequence of events was extremely upsetting and stressful to the complainant. Counsel submits it sent the message that Mr. Cardoza was completely insignificant. Despite the fact that in the middle of July, Ms. Desabrais, a senior manager, reported to the Ministry that the situation had festered for too long and that the status quo was not viable, the unworkable status quo was allowed to continue for many more months. There is no evidence of what consideration the report received, although we know that the superintendent did not receive a copy until much later. [91] Employer counsel submitted that having earlier tried, without success, to implement both options mentioned in the recommendations of the Desabrais report, the employer should not be faulted for not implementing them. I accept that idea, and add that Mr. Valaitis was just settling in as superintendent at the time. As well, settlement discussions were ongoing by the time of the grievance procedure in September, so that attempts were being made to resolve the matter. For the period of time after the Desabrais report, I find the question is essentially a matter of remedy, dealt with below. - 34 - [92] To summarize so far, as found in this Board’s decisions in Di Gaetano and DaSilva, cited above, the employer owed Mr. Cardoza a duty of fairness concerning the allegations made against him by Ms. MacDonald, regardless of the process adopted. I find that in handling both the grievance and the WDHP complaint, the employer breached that duty, principally by failing to give Mr. Cardoza timely information about the allegations against him and an opportunity to rebut them before making commitments which compromised his interests. [93] In the period between the settlements and Ms. Desabrais’ report, the issues as to breach concern Mr. Cardoza’s efforts to resolve the situation and his departure from the workplace. These will be dealt with in reference to the themes addressed by counsel in argument: whether there was a further breach of the duty of fairness, or the duty not to treat employees in an arbitrary manner; health and safety issues; constructive lay/off or discipline and the employer’s allegation of breach by Mr. Cardoza. ii. Did the employer act arbitrarily? [94] An employer may be found to have acted arbitrarily where the action taken is unreasonable or unsupported by a valid business purpose. The complainant argues that management’s failure to act to resolve the situation it had created was arbitrary, unreasonable and basically unexplained. Management counsel argues that it was not a term or condition of employment that the employer had to respond to e-mails and letters, or consult Mr. Cardoza before taking action. [95] Having considered the matter at some length, I note that the various representatives of the employer, each in their own way, made some attempt to resolve the situation, but for a variety of reasons either did not follow through or take decisive action until 2010. As well, Mr. Cardoza had made various references in his communications to ill effects on his health, and may well have appeared unwell to management in the period before he went off, so the fact that some may have assumed he was unable to return for medical reasons is not particularly surprising. Considering this matter has been complicated by the fact that a great deal of what transpired in regards to Ms. MacDonald’s allegations against Mr. Cardoza was - 35 - not before me, partly because a number of the decisions which negatively impacted Mr. Cardoza were made as part of confidential settlement discussions with the union and CO MacDonald. Notwithstanding all this, one element is quite straightforward. A number of important communications, first from Mr. Cardoza, and then from his lawyer, went totally unanswered. Failure to answer any one of them might have been of little consequence, but cumulatively, the approach became quite unreasonable. No sufficient explanation was given for this, such that I am unable to come to any conclusion other than that Mr. Cardoza was treated in an arbitrary manner concerning his attempts to resolve the matter and return to work. This followed on refusal of any information about the allegations against him, despite the provisions of the WDHP process, until the “gist list” in late February. The idea that the actual occurrence reports were not able to be released without some formal proceeding was given as a reason for this by Mr. Greer in his evidence, but this cannot be a sufficient answer to the respondent’s right to know the allegations against him in a timely manner, at least where the employer is seriously entertaining them as they were in this case. [96] Further, although it is true that there are provisions in Regulation 378/07, to have grievances proceed even if the Deputy Minister has not responded to a grievance, this is no answer to the general duty not to act arbitrarily towards employees. Despite some difference in context, this case is quite similar to Shilman, cited above, in that the lack of appropriate information or direction from the employer at crucial times lead Mr. Cardoza to act to his detriment, as he made decisions which were not based on a realistic information base. Employer counsel sought to distinguish this case on the basis that there were serious questions raised about the employer's good faith in Shilman whereas there is no evidence of bad faith here. Although I agree that bad faith has not been demonstrated here, the insufficiently justified inattention to Mr. Cardoza’s plight remains quite similar to that in Shilman in which there was little or no attention to the manager’s interests until commitments were made to the union which negatively impacted on the grievor’s career. [97] It is clear that there were a number of distracting factors which partially explain how this case unfolded it as it did, rather than being handled in a more direct way with Mr. Cardoza. These include the fact that there were a number of proceedings coming from Ms. MacDonald as well as the occurrence reports from Mr. Cardoza which were not resolved before a period - 36 - of contract negotiations marked by many work refusals and other union actions. This was followed by the transition of superintendents, which helped create uncertainty about whether it was the institution or the Regional Office which was handling the matter. Although the fact that these elements all came together in one case may be unusual, each of the strands is not unpredictable, and warrants attention as to how to prevent things going on so long “for a variety of reasons without appropriate intervention” as Ms. Desabrais put it in her report. [98] In particular, attention is warranted on the question of how to manage the situation more effectively where grievances and WDHP complaints about the same facts proceed simultaneously in separate processes, including reflection on what the effect of a settlement in one process ought to be on the continuation of the other. There are complexities of course. For instance, the union is necessarily involved in the grievance procedure, whereas it may not be involved in the WDHP process, and thus the parties may be different. And there are two different prescribed procedures involved in a grievance under the collective agreement and a complaint under the WDHP. The facts may overlap, but not be identical, leaving some matters outstanding even if one process is settled. Nonetheless, more attention to co- ordinating the two processes might have helped avoid what happened here, in that the overlapping of the two processes appears to have served to impede a timely resolution of either, as well as to divert attention from the effect on Mr. Cardoza and his rights. In a case of unproven allegations, where it is found necessary to relocate one or the other of the participants, thought might also be given to how to mitigate the perception that the person moved has been found to be at fault. iii. Health and Safety Issues [99] Turning to the health and safety issues raised, employer counsel argued that there is no basis to find a breach of the Occupational Health And Safety Act. Accepting that Mr. Cardoza had a panic attack upon receipt of the summary of Ms. MacDonald’s unproven allegations, counsel notes that there is no further evidence of a medical condition or actual lack of safety at work. Complainant’s counsel did not argue a direct breach of the Occupational Health and Safety Act, and did not base the case on a medical condition after the initial episode of absence. Instead, it was argued that the employer's lack of resolution of the workplace issues - 37 - made it impossible for Mr. Cardoza to continue at work after March 12, 2009. Counsel for Mr. Cardoza submits that after that date he would have been putting his health and safety at risk, something he argues was not challenged in the employer's evidence. [100] Given my other conclusions, and the way the facts unfolded, I am not of the view that it is necessary to make findings about the application of the Occupational Health and Safety Act. The issues were never brought to a head in a manner which directly engages that statute, as they might have been if, for instance, the employer had directed Mr. Cardoza to return to his regular duties after he left the workplace. Then, if he felt it was unsafe to do so, he could have invoked the appropriate provisions of the Act or taken other action. iv. Breach by Mr. Cardoza? [101] As noted above, employer counsel argued that Mr. Cardoza fundamentally breached his employment contract by unreasonably withdrawing his service. In this respect, counsel refers to the decision in Robson v. Thorne, Ernst and Whinney, [1999] O.J. No. 4638 (CA), 93 A.C.W.S. (3d)642, a civil suit for breach of contract in the financial services industry, where the court found the test for fundamental breach to be whether the other party had been substantially deprived of the whole benefit of the contract. The employer invites a finding that Mr. Cardoza, by his actions, deprived the employer of substantially the whole benefit of his employment contract without sufficient reason. In those circumstances, the employer no longer had any responsibilities to him but nonetheless offered alternate work, first in the same institution and then in two other facilities and even continued his pay. [102] This submission would have considerably more strength if the employer had not responded to the situation as it did. Although Mr. Cardoza may have unilaterally left work, albeit having let his superintendent know what he was doing in advance, he could not unilaterally continue his pay. It was clear from all the management witnesses that when they became aware that Mr. Cardoza was off with pay, without medical documentation, none of them sought to decisively end the leave until 2010, although it was clearly in their power to do so. The reason for this appears to be that the managers involved did not think the situation rejected by Mr. Cardoza was viable either. Mr. Greer acknowledged this within days of the - 38 - settlement, to both Ms. MacDonald and Mr. Cardoza, well before Mr. Cardoza started experiencing disrespect from his subordinates, and did not try to stop Mr. Cardoza from leaving when he told him he could not continue in March 2009. Mr. Valaitis, who inherited, and resolved, the situation, made it clear that having to keep Mr. Cardoza and Ms. MacDonald separated was not workable within the institution, and found a way to have that impediment removed before approving Mr. Cardoza’s return to work. In these circumstances, I find that Mr. Cardoza’s absence was condoned by management, so that it is not appropriate to find that Mr. Cardoza unilaterally breached his contract of employment. I note as well that, if the employer had really thought Mr. Cardoza was in fundamental breach, it had all the necessary tools to end the breach, or eliminate any loss in value of his service by, for instance, directing him to work at an equivalent position. In all the circumstances, I find it more accurate to characterize the situation after his departure in March 2009 as one where the terms of his individual contract of employment were modified by treating him as on paid leave until the situation could be resolved. However, it is clear from Mr. Cardoza’s actions and evidence that he did not accept that as a sufficient solution; he did not agree to the offered modification. He continued to seek an early return to work with more normal terms and conditions of employment, eventually filing this grievance to test his view that he was entitled to more than what was offered. v. Was Mr. Cardoza constructively laid off or disciplined? [103] Counsel for Mr. Cardoza argues that the sequence of events which resulted in Mr. Cardoza’s protracted absence can be seen as a constructive layoff without cause. He submits that, having allowed an intolerable situation to go on, the employer first condoned the absence with pay, and then in early 2010, would not allow Mr. Cardoza to come back until the situation settled so he could work with CO MacDonald. Counsel analogizes this to the situation in Shah v. Xerox, cited above, where the employer’s actions had made the situation sufficiently intolerable that a constructive discharge was found. [104] By contrast, employer counsel rejects the suggestion that the employer breached the employment contract by constructively laying off or disciplining Mr. Cardoza. Shah v. Xerox is distinguished, in the employer’s view, because the court found an intention to no longer be - 39 - bound by the contract. Here, counsel argues that that by paying Mr. Cardoza while he was absent, the employer clearly showed its intention to honour the employment contract. Counsel underlines that it is within the employer's right to change Mr. Cardoza’s assignment from general duty to one of the floors and that the opportunities for overtime were equivalent in both posts. When he stopped accepting that work and went off, counsel argues there was no lay-off, or breach by the employer. [105] Alternatively, complainant’s counsel argues that the facts should be seen as amounting to constructive discipline because of the loss of pay, in both pay for performance, and loss of access to overtime opportunities. The Board is invited to find that he was effectively disciplined, in that he bore the full negative brunt of the employer’s settlement with the union and handling of the issues with Ms. MacDonald. His assignment was changed, his mobility in the institution was restricted; he felt punished, experienced humiliation and eventually lost considerable income as a result of his inability to work under the prevailing conditions. [106] All of the effects enumerated by complainant’s counsel are ones that are often associated with being disciplined. And if the matter is considered as disciplinary, it was certainly without just cause, as no attempt was made to defend the action on that basis, as that is not how the reassignment and subsequent events were seen by the employer. There was no suggestion that Mr. Cardoza had done anything worthy of discipline. Nonetheless, the case law is clear that an action may be properly found to be disciplinary even though it is not initiated or seen by the employer in that light. This was the result in the Grievance Settlement Board’s Gareh decision, cited above, relied on by the complainant, as well as in Toronto East General & Orthopaedic Hospital Inc. and A.A.H.P.O., (1989), 8 L.A.C. (4th) 391 (Springate). The latter case dealt with an administrative reassignment of a laboratory employee to ensure training in a specific procedure. Although accepting that the initial reassignment was not disciplinary, the Board of Arbitration in that case found that when it went on longer than would be a reasonable non-disciplinary response, it should properly be considered disciplinary. In the result, the grievor was compensated for his losses while on the administrative re-assignment. Although this is a viable alternative basis on which to view this matter, it is in the end unnecessary given the other conclusions I have reached. In any - 40 - event, I find it preferable to deal with the case on the basis of the employer’s actual behaviour, rather than a notional treatment of it as disciplinary or a constructive lay-off. III. Remedy [107] Having found a breach of the duty of fairness, and of the expectation that one not be treated in an arbitrary fashion, I turn to the question of remedy. Remedies are intended to put the aggrieved party in the same position, to the extent that that is possible, as if the breach had not occurred. Actual financial losses caused by the breach, as well as damages, in certain circumstances, will be payable, if they are reasonably foreseeable, subject to the duty of the person suffering the loss to act reasonably to avoid incurring greater losses, known as the duty to mitigate. It was not argued that the types of damages claimed were not reasonably foreseeable. [108] Essentially arguing that the employer’s actions did not cause Mr. Cardoza’s losses, employer counsel submits he took himself out of the workplace, and he should have returned to work earlier, thus avoiding his losses. In a related argument, employer counsel refers to the fundamental concept in contract law that the employment contract is an exchange of value. It is the employer’s position that Mr. Cardoza did not provide value in the terms of services for the period of his absence, except for attending some meetings. He received salary and benefits, more than adequate compensation for the limited service he provided, and anything further would be over-compensation, in the employer’s view. Further, any diminished authority experienced by Mr. Cardoza was at least in part a function of the general strained climate of labour relations in the period. [109] Counsel for the complainant rejects this approach, focussing on the idea that where there is a breach there should be a full remedy. He likens Mr. Cardoza’s situation to that of the grievors in the case of GETSCO Technical Services Inc. v. International Brotherhood Of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers And Helpers, Lodge 359, 2004 CanLII 65416(B.C. L.R.B.) where those who removed themselves from the workplace in order to avoid injury from exposure to a toxic substance were compensated for their losses. Employer counsel distinguishes this case on the basis that the unhealthy situation in that - 41 - workplace was scientifically proven, while the only link to health and safety during his absence is Mr. Cardoza’s own evidence. [110] The position to which Mr. Cardoza ought to be returned is one where the dispute resolution process was fair to him, and one where he would have been advised of the allegations in a timely way, with an opportunity to rebut them close to the time they were made. Moreover, it would have included a timely response to his efforts to return to work, as well as to the communications of his counsel. Having considered this matter at some length, I find that the employer’s failure to adopt a process that accomplished those goals was likely responsible for his losses. In saying this, it is important to note that even if the breach had not occurred, and Mr. Cardoza had been given the requisite opportunities and information, he could have ended up with an administrative reassignment. An administrative reassignment during the course of dispute resolution processes is sometimes necessary, and is not in and of itself a breach of contract, if done in a manner that respects the rights of the person transferred. As well, even if Mr. Cardoza had been given better information earlier, both about the administration’s decision not to adjudicate his reports of insubordination, and about Ms. MacDonald’s allegations, it is possible that he would have declined to participate in mediation or that he would have participated and the issues with Ms. MacDonald would not have been resolved. Ms. MacDonald might still have grieved and/or filed a WDHP complaint. [111] Nonetheless, the available inferences from the evidence persuade me that it is more probable than not that, if Mr. Cardoza had known both that the administration had no intention of adjudicating the infractions he had reported, and that there were allegations of harassment outstanding against him, in a reasonable time after those allegations were formalized, things would have unfolded in a manner which might well have avoided the situation that developed in the spring of 2009 and lead to his leaving work and his subsequent losses. Since both the grievance and the WDHP complaint filed in May 2008 related to similar allegations, the employer’s decision not to proceed on the first WDHP complaint does not alter the basic situation that there were, unbeknownst to him, formal allegations outstanding against him, from May to November 2008. Mr. Cardoza’s uncontradicted evidence was that he was a strong supporter of sitting down with an employee after allegations had been dealt with to - 42 - restore the workplace situation. If he had known that his allegations against Ms. MacDonald had already been dealt with by the administration, by deciding not to proceed to adjudication, even if he did not agree with that result, it is likely he would have viewed an opportunity to resolve the situation by informal means as the available practical remedy, rather than something that needed to wait. The evidence did not disclose exactly when the decision was made not to proceed to adjudication on Mr. Cardoza’s report of insubordination during the March 2008 “door” incident and to use informal processes instead. However, it appeared to have been made shortly after the incident reports were filed about it, which would mean in March or April 2008, several weeks before the grievance and first WDHP complaint were filed, and several months before the interim settlement of the grievance. A realistic information base earlier on would have gone a long way to advancing the resolution of the issues between Mr. Cardoza and Ms. MacDonald so that they were not still outstanding when the labour tensions in early 2009 exacerbated the workplace environment at the time of Mr. Cardoza’s reassignment. [112] Moreover, even if the matter had not been resolved in the spring, if he had been given the opportunity to rebut Ms. MacDonald’s allegations in a reasonable time after they were first made, and vice versa, the management team at the mediation arbitration session in November might have been in a much better position to respond to the information that was presented in that context without being caught unaware by the information presented, putting Mr. Greer in the unenviable position in which he found himself. I note here that the existence of occurrence reports filed without knowledge of the other’s party’s version of events is not properly considered equivalent to an opportunity to rebut the other party’s allegations or information. [113] Further, operating independently of the breach of duty of fairness to Mr. Cardoza in the spring and fall of 2008, there is the arbitrary conduct throughout the first several months of 2009, which mostly ignored the situation, with the exception of the efforts to place Mr. Cardoza in London. Although this held the promise of solving the situation, the fact that the effort was let lapse by the employer in June contributed to his losses, as did the failure to advise him of the findings in Ms. Desabrais’ report in July or to take action of any kind after its release, even if the recommendations were not considered viable at the time. - 43 - [114] As noted above, Mr. Cardoza did not file incident reports about the treatment he was receiving from his subordinates, although he agreed Mr. Greer had told him he needed them to take action against the individuals involved. I have carefully considered what role Mr. Cardoza’s failure to file those incident reports had in the manner in which the facts unfolded. It is possible that doing so might have resulted in his situation being better addressed in early 2009. Nonetheless, it is very difficult to separate Mr. Cardoza’s lack of confidence in the efficacy of doing so from the low morale he was suffering as a result of the employer’s handling of the matter. Further, management’s overall approach to his concerns during those months, set against the larger labour relations context, does not give the Board the requisite confidence that it would have made any difference. As well, it was clearly in Mr. Greer’s power to have directed him to file them, as he did on other occasions in evidence. Moreover, there is no clear evidence about when Mr. Greer told him he would need the incident reports, so it is very difficult to make a finding that the timing would have been such that there was any reasonable prospect of their making a positive difference. In any event, filing incident reports would not have addressed the sense of betrayal Mr. Cardoza felt at having his reputation compromised without being afforded a chance to address the allegations, heightened by the health crisis he experienced upon the receipt of the “gist list” of allegations at a point when they had been outstanding against him in one form or another for almost nine months. These events might well have lead to his being off work in any event. In the context that the overall situation was created by the employer’s actions, I am persuaded that his failure to file the incident reports did not likely have a meaningful impact on the causal connection between the breaches I have found and the losses experienced. [115] The principal remaining questions then are: what were Mr. Cardoza’s losses; and did he fail to reasonably mitigate them? These will be considered as necessary for each of the claimed categories. As agreed by counsel, there are three different periods with significantly different characteristics as to loss: a) March 2009 to a few weeks after the Desabrais report, which I will set at September 4, 2009, the date of the internal grievance hearing in Mr. Cardoza’s grievance; b) September 2009 to February 2010, a few weeks after mediation of Mr. Cardoza’s grievance at the PSGB; c) February 2010 when Mr. Cardoza approached the - 44 - employer again to return to work without conditions, until May 2010 when Mr. Cardoza returned to work. [116] The complainant asks to be made whole, meaning he claims that every loss should be fully compensated. This involves a number of disputed components which will be addressed in turn. a) Overtime Opportunities [117] Mr. Cardoza worked substantial amounts of overtime prior to March 2009. This fact was so well known, and so useful to the institution that sometimes had trouble covering shifts, that it was something that immediately came to the superintendent’s mind when contemplating the effects of separating Mr. Cardoza and Ms. MacDonald at the time of the first settlement in November 2008. Once Mr. Cardoza left work, he did not have access to such opportunities, and he earned much less than before, despite the maintenance of his salary and benefits. [118] Employer counsel objects to the overtime request on the basis that Mr. Cardoza did not provide value in the terms of services for the period of his absence, except for attending meetings, so that the salary and benefits received is more than adequate compensation for the limited service he provided. In the employer’s view, it would not be commensurate to award overtime when he has already received greater value than what he provided in exchange, already an uneven bargain. In the alternative, if the Board finds any liability for overtime, employer counsel argues it should be limited to the period after Mr. Cardoza approached the employer to come back. [119] Complainant’s counsel disagrees that this is the appropriate framework, noting that whenever a monetary remedy is given for breach of contractual provisions relating to overtime, it is compensation for time not worked. [120] I do not accept the employer’s position that, after a breach of contract, the issue is whether the party who breached the contract got the full value of its original bargain. After a breach, the focus is on what the aggrieved party lost as a result of the breach, i.e. the difference - 45 - between what he would have received if the contract had been kept and what he actually received. I have found above that the breaches by the employer caused the bulk of Mr. Cardoza’s losses. But for those breaches, he would likely have earned significant amounts through the access to overtime opportunities which was a regular condition of his employment, of which he availed himself liberally. The loss of that opportunity is compensable. Given my findings concerning the condonation of Mr. Cardoza’s absence, and his attempts to return to the workplace, it is not my view that the compensable loss was limited to the period in 2010 after the grievor contacted the employer, as argued by the employer. I remit the question of the appropriate measure of the amount lost to the parties to attempt to resolve, which will necessarily vary in the different periods mentioned above. b) Pay-For-Performance [121] As for the claim for pay-for-performance, employer counsel maintains that there are two reasons why it should not be awarded. First of all, the relevant policy provides that it can only be awarded for actual performance. Since Mr. Cardoza was not actively working within the 2009/2010 performance cycle, he is not eligible within the terms of the policy itself. Furthermore, counsel relies on the fact that Regulation 378/07 expressly limits the Board's authority in regards to pay-for-performance. [122] Counsel for the complainant agrees that the Board does not have jurisdiction to review the assessment of performance when it is actually assessed but argues that this is no answer to the grievor’s entitlement to a full remedy. Counsel refers to the Board’s decision in Charlton which found that an award that does not provide for complete compensation for loss falls short of the Board’s remedial mandate, and notes that it included the opportunity to prove a loss related to an unfavourable sale of her house. [123] Regulation 378/07 under the Public Service of Ontario Act, s. 4 (2) provides that a number of topics cannot be the subject of a complaint about a working condition or a term of employment. These include the evaluation of a public servant’s performance, the method of evaluating that performance and the compensation provided or denied as a result of the evaluation of his or her performance. It is my view that the purpose of this provision is to - 46 - prevent the Board from performing the function of an appeal from the employer’s decisions about the quality of a person’s performance, how to evaluate it, and how to remunerate it. I am not persuaded that it is a shield from a remedy which addresses the loss of pay for performance caused by a breach of other terms and conditions of employment. The subject of Mr. Cardoza’s grievance is the employer’s treatment of him, which I have found breached terms of his employment unrelated to pay for performance, but lead to the loss of the opportunity to be assessed for and receive pay for performance, among other things. It is not my view that these circumstances fall within the regulation’s exclusion as to the subject of a complaint. I note that when the legislature wished to remove things from the remedial power of the Board, it has done so explicitly, such as in section 24 of The Public Service of Ontario Act as well as in section 14 of Regulation 378/07, referring to limitations on the Board’s power of reinstatement. [124] In the result, the grievor should receive an amount equivalent to what he would have received as pay for performance as if he had been at work from March 12, 2009 to May 10, 2010. c) Damages [125] Over and above the direct income losses dealt with above, Mr. Cardoza also claims aggravated damages because of what counsel characterizes as the employer’s calculated indifference as to his interests, including his dignitary interest in the ability to go to work. In Fidler, cited above, the Supreme Court of Canada took the opportunity to clarify two different usages of the term “aggravated damages” in the context of damages for mental distress arising from breach of contract. The first type, which the court characterized as true aggravated damages, arise out of aggravating circumstances, which form the basis for a separate cause of action rather than from contractual principles related to what was in the reasonable contemplation of the parties at the time the contract was formed. The Court mentioned defamation or fraud as examples of such separate causes of action. The second meaning, not seen as aggravated damages by the Court, refers to damages which arise out of the contractual breach itself, rather than some separate cause of action. The finding in Fidler was that where an object of a contract was to secure a particular psychological benefit, a breach may lead to damages for resulting mental distress. The claim here straddles the two - 47 - meanings, based on alternate arguments of breach of either a term intended to confer a psychological benefit and/or aggravating circumstances. [126] Mr. Cardoza’s counsel relied on Fidler, as applied by this Board in Charlton, arguing that it is the right to go to work which is the psychological benefit provided by Mr. Cardoza’s contract. Further, counsel submits that what is aggravating in the facts of this case is the employer’s failure to respond to the situation, and to answer either Mr. Cardoza’s or his counsel’s attempts to resolve the matter without the need of litigation. Even in 2010, when he tried to come back, the employer did not let him return. [127] By contrast, employer counsel relies on Honda Canada Inc. v. Keays, [2008] 2 S.C.R. 362, urging a finding that since Mr. Cardoza was not constructively laid off, there would be no aggravated damages for conduct on dismissal as discussed in that case. Counsel notes that in any event, there is no evidence of bad faith, the ground for aggravated damages in many instances. Most fundamentally, the employer’s position is that the pay afforded to Mr. Cardoza during his absence was sufficient compensation on all counts. Employer counsel distinguishes the award of damages in Charlton relied on by Mr. Cardoza’s counsel, on the basis that there was no threat of harm and no allegation of discrimination on a ground protected by the Human Rights Code, as in that case. [128] In Fidler, cited above, the Court made clear that damages for intangible losses such as mental distress arising from a breach of contract may be recovered where they are established to be within the reasonable contemplation of the parties at the time the contract was made, and did not depend on egregious conduct by the party who had breached the contract or a separate actionable wrong. The Court put this in the context that the basic principles of contract damages do not cease to operate merely because what is promised is an intangible, like mental security or state of mind. Nonetheless, the Court made a distinction between normal commercial contracts, where the likelihood of a breach of contract causing mental distress is not ordinarily within the reasonable contemplation of the parties, and others where an object of the contract is to secure a particular psychological benefit. - 48 - [129] This Board’s jurisdiction to award damages in appropriate cases is clear and has been exercised in appropriate cases, most recently in Charlton, cited above. In that case, this Board found that the contractual guarantee of freedom from racial harassment in the workplace created an expectation of a psychological benefit as it was intended to protect the employee’s dignitary interest. Since its breach caused substantial disruption to the grievor’s life and peace of mind, damages at the same level as those in Fidler were awarded. [130] Fidler has also been applied in arbitral decisions dealing with disability issues, with damage awards which varied according to the circumstances. See for instance, Hamilton Health Sciences and O.N.A. (Bell), (2008) 169 L.A.C. (4th) 293 (Devlin) and Greater Toronto Airports Authority (2010), 191 L.A.C. (4th) 277 (Shime), quashed in part by the Divisional Court: (2011) 202 L.A.C. (4th) 205; 329 D.L.R. (4th) 256. The jurisdiction of a Board of Arbitration to award damages for mental distress was not disputed by the Divisional Court’s decision in GTAA. However, the Court took a cautious approach to the subject, and found that the arbitrator's reasons had been rooted in the idea that a main purpose of the collective agreement was to provide the psychological benefit of gainful employment, rather than in the provisions related to disability or sick leave benefits. In this context, the Court rejected the idea that mental distress damages on termination or breach of the collective agreement would have been in the reasonable contemplation of parties to a collective agreement entered into prior to Fidler, noting that employment contracts had been found not to be “peace of mind” contracts. The Court stated that if that had been the only basis for the arbitrator’s award, it would have been found to be unreasonable. Nonetheless, the Court found that the arbitrator’s award of damages for mental distress was reasonable based on a finding of bad faith in the manner of dismissal, but reduced the amount on the basis of insufficient evidence to justify including compensation for exacerbation of the grievor’s knee injury. [131] The terms of Mr. Cardoza’s employment contract relating to fair process and non-arbitrary treatment are the ones which I have found to have been breached. The question then becomes whether one of their objects is an intangible psychological benefit such as peace of mind. - 49 - [132] Although I am aware of no cases that have dealt with that question specifically, there are arbitration decisions which have granted damages for breach of provisions requiring notice of allegations where other remedies did not fully compensate for their non-observance: Alberta (Health Services) and H.S.A.A. (Munro) (2009), 187 L.A.C. (4th) 129 Re Edmonton (City) and C.U.P.E., Local 3197 (Sagstuen), (2007), 167 L.A.C. (4th) 394. These decisions did not mention Fidler, which does not appear to have been argued. The Edmonton decision grounded the damages in the loss of the opportunity to try to convince the employer not to discharge the grievor where the collective agreement’s provisions relating to notice of allegation had been ignored. The arbitrator found that those rights should be protected, as important substantive rights designed to ensure procedural fairness in the investigative process for the employee and as well as providing the union the information needed to properly advise and represent employees being investigated. Secondly, the uncertainty of not knowing the precise nature of the City's concerns during the investigation and even after termination caused the Grievor a considerable amount of additional stress and anxiety. By contrast, the Alberta Health Services decision framed a similar result as damages flowing from the decision of the Supreme Court of Canada in Honda, cited above. In that decision, the Court determined that although the normal distress and hurt feelings resulting from dismissal are not compensable, damages resulting from the manner of dismissal would be available where the employer engages in conduct during the course of dismissal that is 'unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive' . Where the grievor was discharged without compliance with the procedural provisions of the collective agreement, causing her stress which exacerbated her physical condition, and left her feeling vulnerable, compensatory damages were awarded for loss of dignity and for suffering caused by the unduly insensitive conduct of the employer. [133] In considering whether contractual provisions providing for procedural fairness ought to be considered to have peace of mind as an object, it is relevant to take into account that they address the basic fairness which is fundamental to our legal system. Further, as noted in cases such as DiGaetano and Masters, cited above, the accusation of being a harasser itself can be damaging to reputation, and stressful, whether eventually substantiated or not. In such circumstances, the knowledge that one’s conditions of employment provide for fair process would likely provide a modicum of peace of mind at the necessarily difficult time of - 50 - being the subject of an investigation or fact finding. I am satisfied that this is one of the objects of contractual terms concerning procedural fairness, and part of what the WDHP policy had in mind when it articulated that all aspects of the process are to be fair, responsive, timely and to aim to preserve the dignity, self-respect and rights of all parties. Thus, I find that an object of the procedural fairness terms of Mr. Cardoza’s employment contract was a psychological benefit of peace of mind in this respect. Under the principles enunciated in Fidler, then, it is necessary to assess the value of the loss of that peace of mind in the facts of this case. I find that this analytical framework addresses the facts of this case better than the concept of aggravated method of breach, considered in cases such as Honda, cited above. [134] As the cases cited above indicate, the valuation must depend on the unique facts of the case. Considerations have included the basic principle that damages are intended to be compensatory and not punitive, as well as the amount and duration of the disruption to peace of mind and the stress caused thereby, whether the breach was deliberate, whether the subsequent process remedied the breach at all, and whether other remedies have adequately compensated the grievor. [135] The relevant circumstances of this case include that the delays in apprising Mr. Cardoza of the allegations against him went on for many months, and the arbitrary delays in responding to his overtures to return to work stretched the period of uncertainty and disruption to his career and peace of mind to well over a year. Nonetheless, the circumstances here were not extreme as in some of the cases cited above, and were partly due to the general labour relations situation, a factor operating independently of the breaches I have found here. Mr. Cardoza was eventually included in the fact-finding process; he was not fired, or left without income during his absence. The fact that he was out of the workplace removed him from the immediate stress from that environment, although it generated other kinds of stress. Although there was no medical evidence after the initial episode in early 2009, Mr. Cardoza’s evidence was convincing that the entire period was genuinely and seriously stressful, well beyond what may be considered the normal level of stress to be expected from the often difficult work in correctional institutions or ordinary discontent associated with disagreement with the decisions of one’s superiors. - 51 - [136] In light of the case law set out above, I have considered all the circumstances, including the declarations and compensation ordered for Mr. Cardoza’s financial losses elsewhere in this decision, which are significant, but do not address the loss of peace of mind involved in the breach of the fair process provisions discussed above. I have come to the conclusion that it is appropriate to award the amount of $5,000 as damages in this respect. d) Mitigation [137] In terms of the issue of mitigation, counsel for the employer refers to Red Deer College v. Michaels, [1976] 2 S.C.R. 32 to support the proposition that the employer should not be held responsible for avoidable losses. Counsel submits that there were three opportunities to work turned down by Mr. Cardoza, which should lead to a finding that he failed to mitigate his losses. These were the reassignment at Toronto West, the work at Maplehurst, and the work in London. Further, counsel for the employer argued that Mr. Cardoza squandered early opportunities for resolution of the matter in refusing to mediate with the CO until the allegations he had made against her were dealt with. As well, it is argued that Mr. Cardoza was unreasonable in his failure to accept the situation as management presented it as a means to abide by the Minutes of Settlement, as were his suggestions about how to meet their terms without a change of post. I am invited to take into account the value of foregone opportunities in any assessment of compensation owed. [138] Complainant’s counsel agrees there is a duty to mitigate, but concentrates on the fact that the onus to prove a failure to do so is on the employer. It is submitted that Mr. Cardoza reasonably mitigated his losses, and that there is no evidence sufficient to find otherwise. Counsel argues that the opportunity at Maplehurst was never actually put to Mr. Cardoza with any details, and that there is no evidence as to whether it involved opportunities to work overtime or not. Mr. Cardoza repeatedly stated he was open to return to work, and inquired about the opportunity in London, reported the information he learned back to the employer, and heard nothing further. - 52 - [139] The evidence before me persuades me that Mr. Cardoza reasonably mitigated his damages. He remained working until his health crisis and beyond, attempting to find a solution at his home institution. The evidence does not provide a basis to find that he acted unreasonably in his response to Mr. Greer’s mention of the possibility of an assignment at Maplehurst. Firstly, there is no evidence that it was actually an offer of available work. In any event, it was reasonable to concentrate on a solution at his home institution, especially as Mr. Greer’s position in February and March was that he thought the Minutes of Settlement had been satisfied, and that he could soon go back to his general duty position. As to the opportunity in London, it was not unreasonable for Mr. Cardoza to inquire about the work before accepting it, or to e-mail Mr. Conry informing him that he had heard that the project was on hold and that he was “awaiting further instructions”. Short of pestering the Regional Office or the new superintendent at a time when the Ministry was not answering his or his counsel’s communications, it is difficult to know what he could reasonably have done, other than file a grievance as he did. I do not accept the employer’s submission that Mr. Cardoza was throwing up barriers to a return to work, especially in light of the overriding reality that the employer could have directed him to return to work at any time, or attempted to regularize the leave by asking for medical evidence. Counsel said he could have signalled he wanted to return to work at any time. The fact is that he did, on several occasions. The fact that he was proposing conditions is a permissible kind of negotiation in the circumstances. That the employer did not respond more directly is the abiding mystery of this case, and is an almost complete answer on the question of mitigation. e) Costs [140] Given that both Mr. Cardoza and his counsel tried to avoid litigation, counsel urges the Board to award costs as part of a make-whole remedy. Since the employer would not deal with them for months, it is argued that there was no other viable option, so that it is the employer who should bear the cost of the process. Although bad faith was not argued in the end, counsel says that in the absence of evidence to support any legitimate business interest in how the employer was acting, which was contrary to Mr. Cardoza's interests at almost every juncture, it is open to the board to fix additional compensation for legal costs. Counsel refers to the Board’s decision in Callaghan v. Ontario (Ministry of Agriculture & Food) - 53 - P/0009/89 (Willes), decision on the merits dated January 10, 1991, and its acceptance of the idea that if the grievor has a significant legal bill to pay out of compensation for other matters, he is not made whole. Counsel adds that the message will be that the employer always wins. [141] Costs are generally awarded to the successful party in Court actions, but have not generally been awarded by administrative tribunals or arbitrators in employment matters in Ontario, either on the basis of lack of jurisdiction, or as a matter of practice. A practice which does not award costs as a matter of course has the feature that unsuccessful grievors and applicants do not generally face the prospect of paying the legal costs of the successful party, something that makes administrative tribunals more accessible than the Courts. Although the decisions in Callaghan and Girling v. Ontario (Ministry of the Solicitor General and Correctional Services), 2002 CanLII 45638 (ON PSGB) P/0013/98 are examples of cases where the Board has awarded costs, more recent cases have not done so, including Charlton, where the Board reiterated that awards of cost would be reserved for the most egregious examples of employer misconduct. Employer counsel urges the Board to follow suit, referring also to the Board’s award in Younger v. Ontario (Ministry of the Environment), [2007] O.P.S.G.B.A. No. 8 (O’Neil) in this respect. [142] Although the complainant’s request is quite understandable in this case, as much could have been done by the employer in responding to his situation which would have made this litigation unnecessary, this is nonetheless not a case of egregious conduct. Despite the frustratingly inconsistent attention given this matter by the employer, there were also elements of regard and compassion for Mr. Cardoza at certain points, including most obviously the maintenance of his pay during the period he was off work. As well, certain aspects of the facts of this matter, such as the contributing behaviour of bargaining unit members to the overall tense situation at work in early 2009, were not in the employer’s direct control. In all these circumstances, the Board declines to award costs. *** - 54 - [143] To summarize, I find that the employer has breached its duty of fairness to Mr. Cardoza and treated him arbitrarily. He is entitled to be compensated for his financial losses and to damages of $5,000 as discussed above. [144] The issue of the calculation of the amounts owing resulting from the above decision is remitted to the parties. I remain seized to deal with this or any other issue relating to the implementation of the above decision, if the parties cannot agree. Dated at Toronto this 16th day of December, 2011 _____________________________ Kathleen G. O’Neil, Vice-Chair - 55 - Appendix “A” Excerpts – Statutes, Regulation and Policy Excerpts from The Public Service Of Ontario Act and from its Regulation 378/07 relevant to the above issues are as follows: - from The Public Service Of Ontario Act 24. (1) In making a decision on a grievance, the Public Service Grievance Board shall not provide for the employment of a public servant in a position that involves direct responsibility for or provides an opportunity for contact with a vulnerable person specified in a regulation made under clause 31 (1) (a) if the Board has found that the public servant, (a) has applied force to a vulnerable person, except the minimum force necessary for self-defence or the defence of another person or necessary to restrain the vulnerable person for his or her own protection; or (b) has sexually molested a vulnerable person. 2006, c. 35, Sched. A, s. 24 (1) (2) Where subsection (1) applies, the Public Service Grievance Board may provide for the employment of the public servant in another, substantially equivalent, position. 2006, c. 35, Sched. A, s. 24 (2). - and from Regulation 378/07 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, … (2) The following matters cannot be the subject of a complaint about a working condition or about a term of employment: 1. The term or duration of the public servant’s appointment to employment by the Crown. 2. The assignment of the public servant to a particular class of position. 3. A dismissal without cause under subsection 38 (1) of the Act or a matter relating to such a dismissal. 4. The evaluation of a public servant’s performance or the method of evaluating his or her performance. - 56 - 5. The compensation provided or denied to a public servant as a result of the evaluation of his or her performance. O. Reg. 378/07, s. 4 (2). … 9. (1) A complainant is not entitled to file a complaint with the Public Service Grievance Board until expiry of the period provided under this section for dispute resolution. O. Reg. 378/07, s. 9 (1). … (3) If the complainant was required to give a deputy minister notice of the proposal to make the complaint, and if the deputy minister or his or her delegate meets with the complainant within 30 days after the deputy minister receives the notice, the period provided for dispute resolution expires on the earlier of, (a) the day that is 30 days after the meeting; or (b) the day on which the deputy minister gives written notice to the complainant of his or her decision about the proposed complaint. O. Reg. 378/07, s. 9 (3). … (5) If the deputy minister or chair of the Public Service Commission, as the case may be, or his or her delegate does not meet with the complainant within 30 days after receiving the notice, the period provided for dispute resolution expires 30 days after the notice was given to the deputy minister or chair. O. Reg. 378/07, s. 9 (5). 10. (1) Within 14 days after the expiry of the period, if any, provided for dispute resolution under section 9, the complainant may file the complaint with the Public Service Grievance Board by delivering it to the chair of the Board. O. Reg. 378/07, s. 10 (1). … 14. The Board cannot make an interim order requiring the reinstatement of a person as a public servant. O. Reg. 378/07, s. 14. From the Occupational Health and Safety Act 2. (1) This Act binds the Crown and applies to an employee in the service of the Crown or an agency, board, commission or corporation that exercises any function assigned or delegated to it by the Crown. Crown - 57 - 2. (1) This Act binds the Crown and applies to an employee in the service of the Crown or an agency, board, commission or corporation that exercises any function assigned or delegated to it by the Crown. 25. (2) Without limiting the strict duty imposed by subsection (1), an employer shall, … (h) take every precaution reasonable in the circumstances for the protection of a worker; From the Workplace Discrimination and Harassment Prevention Operating Policy: APPLICATION AND SCOPE This policy applies to: • ministries and agencies that employ public servants • employees appointed under the Public Service Act… and covers: • the Code’s prohibited grounds of employment-related discrimination and harassment which are race, ancestry, place of origin, color, ethnic origin, citizenship, creed, sex (including pregnancy), sexual orientation, age, record of offences, marital status, family status, or disability …. • creating, contributing to or condoning a poisoned work environment … • failure of management, in keeping with its authority, to respond adequately to information about discrimination, harassment or poisoned work environment; such failure may be considered condoning of discrimination and/or harassment PRINCIPLES The OPS, as an employer, is committed to: • zero tolerance of discrimination and harassment • proactive, prevention-oriented and cost-effective practices • alternate dispute resolution processes, and resolution of discrimination and harassment, as soon as possible, and in a way that least disrupts ongoing working relationships. - 58 - •All aspects of workplace discrimination and harassment prevention processes will be fair, responsive, timely, confidential, professional~ impartial, consistently applied, and will aim to preserve the dignity, self-respect and rights of all parties. … MANDATORY REQUIREMENTS Prevention, communication and education … Appropriate management response Rules of confidentiality and privacy During the resolution of possible violations, all information must remain confidential, subject to the rules below, except where sharing information is otherwise required by a law, collective agreement, e.g. subpoena in relation to a Grievance Settlement Board arbitration, and/or with respect to a possible violation of the Criminal Code. • Complainants, respondents and witnesses must have access to statements they have made and personal information which they have provided. • Respondents and complainants must have access to enough information about the allegations and responses of other parties and witnesses to enable them to make a defence or a rebuttal. …. • There must be no reference to a complaint under this policy in an employee’s personnel file, unless disciplinary action was taken against the employee. • Before final reports are given to the deputy head, copies of a draft investigation report must be shared with the parties (complainant and respondent) so they can comment on the accuracy and completeness of facts; parties may not share the draft report with anyone other than the person who accompanied them to complaint-related meetings and/or their representative. Time frames While every effort must be made to comply with the following time frames, failure to do so does not void the process. • Unless the situation warrants management’s immediate referral for formal alternate dispute resolution or investigation, managers must attempt to resolve complaints themselves within 30 days of becoming aware of a WDHP-related issue (in consultation with others as necessary). - 59 - … • Parties and managers involved must be notified of the outcome of an investigation within 30 working days of the ministry receiving an investigator’s final report; and where the allegation has been upheld, the notification should indicate that discipline has been imposed and/or other appropriate action has been taken. … Managers and supervisors are responsible for: … • ensuring that all employees know their rights and responsibilities under this policy, including ways in which allegations of discrimination and harassment can be resolved • managing the process for resolving allegations of discrimination, harassment or other policy violations as soon as they become aware of them, whether or not a complaint has been written; consulting with WDHP specialists, where needed … • effectively managing workplaces in which there are possible policy violations … • restoring or improving workplace relationships when either policy violations or resolutions have disrupted these relationships … FOOTNOTES 1. 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. - 60 - Appendix “B” Case Law citations On behalf of the complainant: Canada Post Corporation v. Canadian Union of Postal Workers, (1983) 11 L.A.C. (3d) 13 (Norman); Charlton v. Ontario (Ministry of Community Safety and Correctional Services) P-2006- 0291 (Carter) 2007 CanLII 24192 (ON P.S.G.B.); Fidler v. Sun Life Assurance Co. of Canada, [2006] SCC 30 CanLII, [2006] 2 SCR 3. GETSCO Technical Services Inc. v. International Brotherhood Of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers And Helpers, Lodge 359, 2004 CanLII 65416 (BC L.R.B.); Callaghan v. Ontario (Ministry of Agriculture & Food) P/0009/89 -addendum on costs dated February 4, 1992,) 1992 CanLII 2748 (ON P.S.G.B) (Willes); Machtinger v. HOJ industries LTD, [1992] 1 S.C.R. 986; Ontario Public Service Employees Union v. Ontario (Ministry of and the Attorney General) Grievances of Gareh, GSB #1665/98 et. al., 2002 CanLII 45791(ON G.S.B.); Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services and Ministry of Children and Youth Services) Grievances of Monk et. al., GSB #1995-1694, 2010 CanLII 28621 (ON G.S.B.) (Gray); Ontario Public Service Employees Union v. Ontario (Ministry of Correctional Services)- Grievances of Sammy et. al., GSB #0224/01 et. al., decision dated October 9, 2001 (Harris); Ontario v. McKinnon [2003] O.J. 893, (Ontario Divisional Court); Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 368; Shah v. Xerox [1989] O.J. No. 4349, 49 C.C.E. L. (2d) 30 (Ontario Court of Justice), [2000] O.J. No. 849, 49 C.C.E. L. (2d) 166 (Ontario Court of Appeal); Shilman v. Ontario (Ministry of Community and Social Services) P/0008/88 (Brent, Hoddle) 1989 CanLII 167 (ON P.S.G.B.); - 61 - On behalf of the Employer: Callaghan v. Ontario (Ministry of Agriculture & Food) P/0009/89 (Willes) - decision on the merits dated January 10, 1991; Honda Canada Inc. v. Keays, [2008] 2 S.C.R. 362; Parrack v. Ontario (Ministry of Community Safety and Correctional Services) P-2007- 0852 (O’Neil) 2008CanLII 70546 (ON P.S.G.B.). Red Deer College v. Michaels, [1976] 2 S.C.R. 324; Ontario Regulation 378/07 to the Public Service of Ontario Act, 200; Robson v. Thorne, Ernst and Whinney, [1999] O.J. No. 4638 (CA), 93 A.C.W.S. (3d)642; Younger v. Ontario (Ministry of the Environment), [2007] O.P.S.G.B.A. No. 8 (O’Neil); Zifkin v. Axa Insurance (Canada), [1996], 20 C.C.E.L. (2d) 272 (Alta Ct. of Queen’s Bench) ; Other: Alberta (Health Services) and H.S.A.A. (Munro) (2009), 187 L.A.C. (4th) 129 C.U.P.E. and O.P.E.I.U. (1982), 4 L.A.C. (3d) 385 (Swinton); DaSilva and Ontario (Ministry of Health), 1997 Can LII 10281 (ON PSGB) (Leighton); Edmonton (City) and C.U.P.E., Local 3197 (Sagstuen), (2007), 167 L.A.C. (4th) 394; Girling v. Ontario (Ministry of the Solicitor General and Correctional Services), 2002 CanLII 45638 (ON PSGB) P/0013/98. Greater Toronto Airports Authority (2010), 191 L.A.C. (4th) 277 (Shime), quashed in part by the Divisional Court: (2011) 202 L.A.C. (4th) 205; 329 D.L.R. (4th) 256; Hamilton Health Sciences and O.N.A. (Bell), (2008) 169 L.A.C. (4th) 293 (Devlin); Masters v. Ontario, (1994), 115 D.L.R. (4th) 319, 18 O.R. (3d) 551 (Divisional Court). Mously and Ministry of Community Safety and Correctional Services, P-2010-0433, decision dated December 15, 2010 (O’Neil). Tenaquip Ltd. and Teamsters Canada, Loc. 419 (Vandervende) (2002), 112 L.A.C. (4th) 60 (E . Newman); - 62 - Toronto East General & Orthopaedic Hospital Inc. and A.A.H.P.O., (1989), 8 L.A.C. (4th) 391 (Springate); Toronto Transit Commission and A.T.U. (Stina) (2004), 132 L.A.C. (4th) 225 (Shime).