HomeMy WebLinkAbout1990-1990-Chan.96-06-12 : · , ONTARIO EMPLOYES DE LA COURONNE
. , CROWN £MPL OY£E$ DE L'ONTAR/O
GRIEVANCE COMMISSION DE
SETTLEMENT Ri GLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST. SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONEITI~'L~PNONE : (416) 326-1388
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GSB
OPSEU # 90D999, 91A151
ZN THE I~TTER OF AN ~B'rTRATTON
Under
THE CROWN EMPLOYEEB COLLECTIVE BARG~%ININQ
Before
THE GRIE¥~NCE SETTLEHENT BOARD
BETWEEN
.' OPSEU (than)
Grievor
The Crown in Right of Ontario
(Ministry of Education)
Employer
BEFORE: N. Dissanayake Vice-Chairperson
. P. Klym Member
~ D. Daugharty Member
FOR THE R. Anand-
GRiEVOR Counsel
Scott & Aylen
Barristers & Solicitors
FOR THE R. Dunsmore, P. Murray,. C. Peters
EMPLOYER Counsel
Hicks, Morley, Hamilton, Stewart, Storie
Barristers '& Solicitors
HE]%RING May 16, 1991
October 16, 2~, 1991
November 19, 26, 1991
December 2, ~1, 1991
May 14, 25, 26, 1992
November 4, 18, 1992
January 14, 15, 1993
April 19, 1993
June 1, 9, 10, 1993
~ October 4, 29, 1993
, November 23, 1993
2
DECISION
The Board is seized with two grievances flied by Mr. Char[es Chart, an employee of the
Ministry of Education at its Administrative Services Dept. The grievances ai~ege contravention of
articles A.1 and 18.1 respectively of the collective agreement. Those articles provide as follows:
A. 1 There shall be no discrimination practised by reason of race,
ancestry, place of origin, colour, ethnic origin, citizenship, creed,
sex, sexua[ orientation, age, marital status, famity status, or
handicap as defined in section 9(1) of the Ontario Human Rights
Code (OHRC).
18. t The Employer shall continue to make reasonable provisions for the
safety and health of its employees during the hours of their
employment. It is agreed that both the Employer and the Union
shall co-operate to the fullest extent possfb!e in the prevention of
accidents and in the reasonable promotion of safety and health of
all its employees.
The article A. 1 statement of grievance reads:
I grieve that my rights as provided for in the Collective Agreement specifically, but
not exclusively Article A, have been breached, These violations arise as a result of
the employer's failure to act on my complaints of racial harassment in the
workplace, resulting in physical assaults and injuries to my person and the
continuation of undue mental stress.
The article 18.1 statement of grievance .reads:
I grieve that my rights as provided for in the Collective Agreement, specifically, but
not exctusively Article 18.1, has been violated. These violations arise as a result of
the employer's failure to ensure my health and safety In the workplace after
numerous complaints of harassment, resulting in three physical assauIts on my
person and ongoing racial harassment.
At the outset it was decided that the proceeding would 'be bifurcated and that in]tia[fy the
Board would determine the issue of liability only.
The gr[evor, Mr. Charles Chan immigrated to Canada from Macao in 1968. While he was
a student in the summer of ~,985, he worked at the Ministry of Education's Distribution Centre at 26
3
Breadalbane St. in Toronto. In September, 1985 he decided not to return to his studies and
remained in the MInistry's Distribution Centre as a "Go Tamp" employee.
in December, 1985 the grtevor transferred to the Mall and Storage Unit located in the
second basement of the Mowatt Block in Queen's Park, 900 Bay St., known as "the mail room".
Commencing April 1, t986 he assumed duties as a driver on an acting basis. Following a
competition, on July 13, 1987 the grievor was appointed to the classified service as a driver in the
matt room.
The grievances before the I~oard, relate to alleged acts of racial harassment, threats and
actua~ physical assaults the grlevor was subjected to commencing early In f987. The union
essentially claims that the employer permitted a poisoned work environment to continue unabated,
an environment where Nco-Nazi ideology was propagated and anti-semitic comments and
degradation of vartous raciat groups was rampant. The union takes the position that the employer
had no mechanisms in place to detect and root out this hostile and polsonecl environment and that
~ts failure resulted ~n the gdevor being exposed to continuing harassment and violence, resulting ~n
stress, degradation and physical injury. The union submits fuKhermore, that the employer failed to
act in accordance with its obligations under articles A.1 and 18.1 once it was made specifically
aware of the situation faced by the gdevor and that as a result the perpetrators became bolder, and
the harassment was continued.
In a nut-shell, the employer takes the position that the gr[evor and the union unreasonably
delayed taking the steps available to them if the alleged conduct occurred. The employer concedes
that the grievor was at the receiving end of some inappropriate conduct by certain individuals.
However, its position is that once the conduct was brought to the employer's attention, it acted in
a speedy and efficient manner to remedy the situation. It is submitted that in all of the
4
circumstances, the employer acted in good faith and in a very reasonable manner, in accordance
with its obligations under both article A. 1 and article 18. t.
The Timeliness Objection_
The employer claimed that while the grlevor and the unlon now rely on various alleged acts
of harassment and violence going back to t987, no grievance was filed until October 23, 1990. It
is submitted that, while the grievances are continuing grievances, for the grievances to be timely
under the mandatory provisions of article 27, the union must be able to establish a violation of the
collective agreement within 20 days prior to the date of filing. It is the employer's position that no
violation occurred within the 20 day time period. Accordingly, it is submitted that the grievances
are inarbltrable.
The union made a number of legal arguments to counter the tlmettness objection. However,
the Board needs to focus only on the 'waiver' argument relied upon by the union, it has now
clearly been established by the Grievance Settlement Board that where the employer takes a fresh
step in the grievance procedure without reserving the right to make a timeliness objection, the
,employer irrevocably waives the right to rely on the timeliness provisions. In Re Funo./Anand,
1798/99 (Stewart), the Board reviewed the Grievance Settlement Board jurisprudence and stated
at pp. 11-12 as follows;
The principfe that these cases establish is that an objection based on non-
compliance with time limits is waived when there has been a failure to raise the
objection in a timely manner and the taking of a fresh step prior to raising the
objection, In the circumstances of this case, where the grievance was discussed
at two meetings on its merits, the grievance was denied in wrltlng on its merits
following the stage one meeting and the timeliness objection was not raised until
the written reply subsequent to the stage two meeting, it is clear that a timely
objection to the failure to comply with the time limits of the Collective Agreement
was not made and that a fresh step was taken prior to the timeliness ot~jection
being raised. The fact that the objection was made prior to the hearing or the eve
of the hearing does not affect the operation of the waiver. Once a timeliness
objection has been waived it cannot be renewed by notice. For these reasons, it
is our conclusion that the Employer's objection to the a~bltrability of Mr. Anand's
grievance must fail.
5
The Board also noted at p. 10 that "it is not necessary for detrimental reliance to be
established in order for the doctrine of wa~ter to appl~ff.
The evidence could not be any clearer than in the case at hand, not only that a waiver of
time l~mits occurred, but that the waiver was intentional on the part of the employer. The
uncontradlcted evidence is that during the grievance procedure the union relied on events going
as far back as 1985. The evidence is equally clear that the timeliness issue was not raised by the
employer at any of the grievance meetings. The written replies to the grievance (Exhibits 3, 4 and
8) do not mention time limits at alt. Ms. Peters characterized the statement in the stage 2 response
that "the causes of the alleged harassment no longer exist", as a reliance by the employer on time
limits. However, with respect, that is an attempt to give that statement a meaning, which it does
not have on any reasonable reading. Ms. Kathy Mareskt, Human Resources Consultant, who was
directly Involved throughout the grievance procedure testified that the statement in question was an
assertion by the empioyer that the employer had removed the sources of harassment from the
workplace. That clearly is a response addressing the merits of the grievance.
The'Board's finding that the emptoyer intentionally waived the time-limits in the collective
agreement is supported by the following evidence elicited at the end of Mareski's examination-in-
chief:
Q. Did the union offer any explanation for the delay in grieving?
A. No.
Q. Did you raise timeliness as a technical objection?
A. No.
Q. Why not?
We were more concerned abo~t the issues of harassment raised
than the issue of a technicality about timeliness and wanted to see
if there was any new evidence presented or would come out of the
grievance procedure.
6
There can be no doubt from the foregoing that because of the employer's concern about
the allegations contained in the grievances, it was prepared to deal with them regardless of any
issue of timeliness. From a labour relations point of view, the employer is to be commended for
that appreach. However, having made that decision during the grievance precedure, it is no longer
open for the employer to revert back to its strict rights under the timeliness provisions,
For the foregoing reasons, the Board finds that, if the grievances were not filed in a timety
fashion as the employer claims, the employer has waived Its right to rely on time-limits.
L~gal Significance o_f delay
Before turning to the merits of the case the Board must deal with a further submission made
by the employer based on its allegation that the grievor and the union delayed taking action. Ms.
Peters relied on Re..Bla. ck, 1795/89 (Stewart), where the Board refused to hear the merits of a
grievance chaflenging two suspensions Imposed 14 months and 26 months prior to the date of fiting.
The Board at pp.3-4 hetd:
After a careful consideration of the circumstances it is our view that Mr.
Costen is correct in his submission that there has been undue delay in the filing of
the grievance as it relates to whether there was just cause for the imposition of the
suspensfons of June 18, 1987 and July 8, 1988. While, as noted in Keelina. ~upra,
the time limits contained in the Collective Agreement do not apply to matters such
as discipline, which the grievor has a statutory right tO challenge, this does not
mear~ that s~Jch matters must not be challenged within a reasonable period of time,
To allow such matters to be challenged so long after the facts giving rtse to the
grievance have taken place is contrary to a fundamental premise of the system of
grievance arbitration which is designed to provide the prompt definition of disputes
as well as their prompt resolution. While, as Mr. Lukasiewtcs pointed out, the
Employer did not establish any significant prejudice such as the unavailability of a
witness, the absence of this kind of prejudice does not mean that a grievor is
entitled to leave a disciplinary matter unchallenged for an extended period of time
and, providing no explanation for the delay, be a~lowed to proceed to challenge the
discipline. _
7
in our view, the case at hand is distinguishable from Re Black and it is not appropriate for
the Board here to decline to hear the merits. Firstly, the causes of act[on §lying rise to the
grievance tn .Re Black were two specific acts by the employer imposing disciplinary suspensions on
the griever. As soon as each discipline was Imposed the griever had a cause of action to grieve.
In contrast, here the employer has conceded that these are continuing grievances. Moreover, the
employer admitted that violations of article A. 1 and 18.1 arising out of harassment in a poisoned
work environment necessarily involves a course of conduct. The first time an employee is called
a racist name in the workplace, he cannot be reasonably expected to grieve against the employer
alleging violations of article A.1 or article 18.1. Unlike in Re Black. there is no single act giving rise
to a cause of action; Besides, in Re Black, the Board found that the griever provided no explanation
whatsoever for not fll[ng his grievances earlier. In contrast, here the griever did explain that when
'he encountered difficulties he brought those to the attention of his supervisor in the mail room or
to other members of management and trusted them to take action. That in our view is a
reasonable, and perhaps even a necesary course to be followed by an employee, before filing
formal grievances.
Furthermore, the power of this Board to decline to hear grievances which are timely is a
discretionary one. As the Board in Re Black noted, the Board must consider the individual
circumstances of each case carefully In'exercising that discretionary power. At pp. 4-5 the Board
observes:
In considering such a matter the individual circumstances of each case must be
considered carefully. In this case, where the discipline complained of consists of
relatively brief suspensions, where there has been a period of fourteen months in
one instance and twenty-six months in the other between the time of discipline and
the filing of the grievance and where the griever has provided no explanation for
the delay in filing a grievance with respect to these matters, it is our view that it
would be unfair and inappropriate to consider the merits of these suspensions.
8
in the case at hand, the matters complained of are not minor. On the contrary, the
allegations are extremely serious. Combining that ~act with the fact that in this case there is no
precise moment at which the grievance could be said to have crystallized, the Board is of the view
that this is not an appropriate case for the Board to decline to hear the merits of the grievances.
This, however, Is not to say that any delay on the part of the griever and/or the union in
taking action is of no significance, in order to find a violation on the part of the employer either of
article A. 1 or article 18.1, the union must establish that the employer was aware, or at ~east that it
should reasonably have been aware, of the offensive conduct complained about. If the employer
had no reason to believe that the griever had faced, any harassment, it could not be In violation of
the collective agreement. The extent of the employer's knowtedge of course, is a question of fact
the Board has to determine, in that regard, whether the gdevor raised his concerns and how
expeditiously he did it, will be a relevant consideration in determining whether the action taken by
the employer tn response was reasonable. Furthermore, any delay on the part of the griever may
be a releyant consideration In relation to the remedy, if Iiabitity Is found,
A.]teged Union inaction
The employer also tooJ< the position that under the co~tect~ve agreement the preservation
of a work environment which Was safe and devoid of discrimination is a joint obligation imposed on
the employer and the union. Counsel submitted that while the union was now relying on alleged
incidents of harassment of the griever going back to 1987, prior to the filing of these grievances it
did not raise any complaints with .the employer, offered no suggestions and did not express any
concerns that the employer's responses to the griever's complaints were inadequate. Therefore
counsel submits that in the circumstances the employer was entitled to assume that if the union was
not prepared to get involved with the allegations made by the griever, the situation could not be
serious, and that the union was satisfied with the steps taken by the employer, tf the union was
9
satisfied, counsel submits, it should be no great surprise that the employer would also feet that the
steps taken were adequate and reasonable. It is argued that the Board ought not find that the
e~ptc~'er failed to respond reasonably, when the union itself indicated to the employer by its
inaction, that it had no concerns about how the employer was responding to the complaints raised
by the grievor.
While the Board finds this argument to be attractive in theory, it cannot be sustained in the
face of the evidence. This argument is based on a premise that the union was aware of the
incidents going back to 1987 and yet showed a disinterest. However, that is not the eviclence. The
evidence is that for whatever reasons, the gdevor did not get the union involved in his problems until
after the announcement by the employer in January 1990, of the results of its Investigation. The
evidence also is that, the empfoyer did not contact or seek Input from the union, in responding to
the various allegations raised by the grlevor..
A further difficulty with the employer's argument is that none of the emptoyer witnesses
testified that they were influenced by the union's inaction, into believing that the action it was taking
in response to the various complaints raised by the grievor was adequate and reasonable, in the
absence of such evidence, the argument that the employer was entitled to rely on the union's
inaction as indicative that its responses were adequate and reasonable is a mere hypothesis not
borne out by the evidence.
The Evidence
Since April 1986, the grievor was employed as a driver in the mall room. From that time
until January 199[), except for a period o~ six months, Mr. Steve Nodil]o, a member of management,
was the supervisor in charge of the basement floor, including the mail room.
10
Mr. Tony Alexis transferred to the mail room as a "Go-Temp" in December ~986 from his
previous position In the Ministry's Distribution Centre. In September 1987 he secured a permanent
position as a mail clerk in the mail room. in that position, he too was under the direct supervision
of Mr. Nodi[Io.
Mr. Alex Hetnz, was already employed as a driver in the mail room under Nodillo's
supervision when the grisvor arr~ved there in 1986.
The grlevor testified at length about the problems he encountered with Nodillo, Alexis and
Heinz. No(ii[iD, Alexis and Heinz were not called by the employer to contradict the grievor's
evidence.
The grievor testified that soon after Alexis came to the.mail room the problems started.
Alexis, Ioined by Nodillo and Heinz, used offensive names to refer to racial groups such as Chinese,
Polish, East Indians, North American Indians, Africans, Vietnamese and Japanese, and religious
groups such as Muslims, Buddhists, and particularly the Jewish. They insulted and joked about
these groups constantly at work, as well as after work at social gatherings. The grievor testified that
in ~ 987 Nodi~lo stated that he liked to hire Chinese employees, because they did not fuss too much
unlike blacks who "stir up shit for every little thing." He said that he would never hire a black,
because "blacks are lazy and turn everything into a racial issue". He said that Chinese employees
are very loyal like "Odd-iob~ tn the James Bond movie "Goldf[nge~". Nodillo called the grievor names
such as "Chink", "Rickshaw", "Slant Eastwood", and "gook". "Stupid gook", was a term Nodillo
constantly used to refer to all orientals.
The grievor testified that Alexis would spend a lot of time in Nodillo's office during working
hours making jokes about Chinese peopte, ensuring that the discussion is loud enough to be heard
by everyone. For example, Alexis would refer to someone as a 'Chinaman". Nodillo would say "he
is not Chinese, he is Korean" and Alexis Would laug.h and say "they are all the same". Nexis referred
to supervisor Henry Ko, another Chinese, as a "Gooker', "rice picker" and "dog eater',
The griever further testified that Alexis has called him various insulting names, such as
"Yellow Puke', "Rice(shaw", "Chink" and "Gook~. Alexis also ridiculed the fact that the griever walked
wlth a slight limp as a result of hip surgery, by calling him a "fucking cripple" and imitating his timp~
According to the griever, these insults occurred regularly from early in 1987, particularly
when he refused Alexis' requests for favours such as to buy him things or drive him on private
errands in the ministry vehicle. This continued until early 1989. From early 1989 the racial slurs and
name-calling occurred only when Nc,;lillo, A~exis and Heinz were together as a g~oup, particularly
when they returned from lunch. The griever testified that after Nod[lie was removed from the mail
room following an investigation by the employer into his complaints, Alexis and Heinz resorted to
different tactics. Whenever either of them met the griever alone at work, they yelled out racial slurs
at the griever. Alexis also resorted to physical acts such as blocking the griever's path, and walking
behind him and blowing at his hair. On many occasions Alexis threw bundles of paper at the
griever's feet, spat water at his desk and sometimes physically lifted the griever off the floor.
Once the griever was talking to employee John Sobie in the lunch room, when Alexis
walked up and turned his rear encl towards the griever and ~'farted". Then he ran to Noditlo and'
reid him what he had just done and they both laughed. Alexis threatened to spike the griever's
coffee and the griever suspected that Alexis had in fact put things in his coffee.
The griever testified that almost on a weekly basis, Alexis threatened the griever with
statements like '1'11 beat the shit out of you". Before Alexis got his permanent job, he threatened the
12
grievor and other employees, saying things like, 'If I don't get a permanent ~ob because of you guys
I will get a machine gun and shoot all of you" and "l am going to twist your heads off and shit down
your necks.' The grievor testified that Alexis mentioned many times that he owned guns. Once in
mid.~987, Nexis followed the grievor, mimicking his limp, and stated "one of these days I am going
to bring a gun down to the basement and shoot you". On another occasion, the grtevor was
talking to employees Joe White and Douglas Clare when Alexis drove a tow motor towards him and
yelled "if you don't get out of my way fast enough ! will pin you to the wall'. Once Alexis was
talking to employea Sterling Singh in the sorting area. The grievor was present near-by. Alexis
looked at the grievor, and while making the motion as if breaking something over his lifted knee said
"1 like to pick him up and break him in halt=.
I. The grlevor testified that he constantly complained to Nodillo about the harassment by
Alexis. Nodit)o did nothing. Often Nodillo would mockingly laugh, when Nexis made raclaJ slurs
towards hlm in Nod~lo's presence. Besides, Nod[ilo himself made Insulting remarks about the
.... grievor's disability, in 1986, when directing the grievor to give a ride to a temporary employee who
was legally blind, Nodillo made a comment '~he cripple is leading the blind". He testified that in
'i'i~;? 1987, Alexis mocked and mimicked the physical disability of employee Mary Byrne. Once referring
to her, Nodiilo stated: 'These fucking cripples, why don't we croak them ail". The grievor testified
that on numerous occasions, when Nexis made slurs in Nodillo's presence, he complained to
Nodillo and expressed his displeasure. According ~o him, Nodi~o either ignored him or laughingly
quipped something like "Tony, cut that out".
The grfevor testified that after work, Noditlo went drinking from time to time with a number
of mail room employees including Alexis and Heinz. The group was known as the "Jet-Set'. The
grievor participated in this group late 1985 to earty 1988, atthough from February 1987 the group's
socializing decreased significantly. During these ddnking sessions of the Jet-Set, NodiIlo would
13
make Jokes and derogatory comments about various rac~a~ groups, women and the disabled. ~
particular, Nodillo "preached" his anti-Jewish opinions. The grievor further testified that s~arting in
1986 Nodillo spoke to mall room employees during work hours aboUt his political views. He called
Americans "wimps' because they altowed the Congress and the US economy to be controlied by
Jews. He said he liked the system of segregation of blacks and whites in SoUth Africa. ~-He caIled
the English "limeys' and "wimps" and predicted that one day the Germans would gain control of the
whole world.
According to the grievor, Nodillo had an intense hatred of Jews. During..drinking sessions
many times he stated that if he ever discovers that he has a terminal illness he would tie himself to
an atomic bomb, go to Israet or New York, and say "3'here you are you fucking Jews. ! am softy
I don't have another life to give to kill six more millions of you,~ He said that the Jews are
controlling the US media and using blacks as muscle power. On another occasion he said that he
had not liked Bruce Springsteen until he found out that he was not Jewish.
The grievor testified that Nodillo made no secret of his intense anti-sem~tJc views, whether
at work or after work. He referred to the Auschwitz death camp as the "toaster oven", the "Bar-B-Q"
and the "smoke stack". He often stated, at work as web as outside, that "Hitler was the greatest
man that ever lived". In 1987 Nod[Ilo hsd pictures of HAler in uniform in his office. Most of the time
he kept these out of sight under the blotter. However, he had one picture of Hitler" in plain view,
taped to the wall above the photo-copier. In his office, Nodillo Wou~d puli out a bottle from his desk,
pour a drink and make a toast saying "To the clay Hitler died". If anyone disagreed with his views,
he would say "then you can forget about applying for jobs in the mail room".
The grievor testified that Aiexis also made similar anti-semitic comments at work. He
referred to Jews as "Christ killers# and stated that Jews are stingy. Nodtllo once totd the grievor that
14
in December 1986 Alexis had told him over the phone that his father was in the army and had killed
a lot of Jews and that he decided to hire Alexis even without having ever seen him. In 1986 the
grievor observed Nodillo sell an anti-semitic book "The International Jew~, to employee Tony Rego
in the workplace.
According to the grievor, besides Germans, Noditlo talked of some other "superior races".
He praised Hungarians because they helped Germans in the w~r, and Croatians because they
helped In the extermination of Jews during wodd war II. Once he heard Nodil/o say that Germans
were genetically superior to any other race and that Croatians were really ethnic Germans.' He said
that all other races were like "cockroaches~ because they were mixed breeds. Nodillo, however,
stated that the Japanese, were also 'OK" because they collaborated w~th the Germans during world
war Ii.
in addition to the verbal harassment, the gflevor testified that Tony Nexis assaulted him
physically on three speCific occasions. On February t987, prior to starting work, the grievor was
engaged fna casual conver~tion with three employees, Joe White, Perry Mack and Pat Briggs in
the lunch room. Alexis was lying down nearby. When the grievor was speaking Nexis told him
"shut up you stupid gooks, I am trying to sleep". The grievor told Alexis that he had the freedom
to talk in the lunch room. Alexis, a big man, 6' 4" tail and about 200 pounds, got up, came over to
the grievor and pushed the chair the grievor was seated in. The grievor's chest hit the edge of the
table hard and his coffee was knocked over. The grievor immediately went over to the front desk
and informed the Queen's Park security officer that he was assaulted by Alexis. When Nodillo
arrived shortly thereafter, the grievor reported the assault to him. Nodtllo called the grievor a "shit
disturber" and walked away. The following day Queen's Park security sent over special constable
Mathew O'i~den of the Ontario Government Protective Service.
15
O'Brien testified that he met Nodii~o and asked for an opportunity to speak to the grievor
and Nexis. O'8rlen testified that the grievor appeared to be nervous and upset. The grievor
informed him that Atexis had been harassing him at work for some time and gave examplesPNext
O'Brien Interviewed Alexis, who told him that the grievor was "over-reacting", While O'Brien could
not recall details of what Alexis stated, he testified that he came to the conclusion that he was
dealing with 'a bully who had little regard for visible minorities". He testified that Alexis exhibited
a "1 couldn't care less' attftude and appeared to be saying that "a person working in Toronto should
be used to this kind of treatment". He then catted the two men together and informed Alexis that
if the grievor laid criminal charges, he could end up in jail, but advised that that was not a desirable
result. He asked if he was prepared to apologize to the grievor and assure that the type of conduct
will not be repeated. He asked the grtevor if he would accept that'apology. Both agreed and shook
hands.
While this appeared to resolve the problem for the time-being, O'Brien testified that he was
still qu~te concerned because he doubted the sincerity of Alexis' apotogy and promise. He met
Nodillo and informed him of his concern that this was not an Isolated incident and that Nexis should
be monitored. Nodillo was advised to Inform his Superior, Mr. Andy Glendenning, of the possibility
of a further incident which indicated raciaJ overtones. According to O'Brien, Nodillo did not seem
to take what he said too seriously. He had a '1 couldn't care less type of a smile" on his face, when
O'Brien was expressing his concerns. He left on the understanding that the problem was resolved
for the time being but that Noditlo would inform higher management of the possibility of further
incidents and the need for monitoring Alexis.
The grievor was unhappy with the manner in which Nodillo reacted to his complaint. He
testified that he did not consider the probtem with Alexis as msotved at all and thai he told Nodil~o
that. He shook hands unwillingly, only because Nodillo insisted that he do so. He met with Mr.
16
James Doris, Assistant Deputy Minister in the company of feltow employee and friend, Mr. Shawn
Tivy. He informed Mr. Doris of the assault and Nod[llo's "1 don't care" attitude when he reported it.
Tivy related to Doris the racial name caJJing and harassment by Alexis that went on at the mail room,
and told him that Nodillo had full knowledge of Alexis' conduct, but did nothing about it. The
grievor, as well as Tivy told Doris about the name calling and Nodillo's anti-semitic and pro-nazi
"preaching" at work.
The grievor testified that over a period of 3-4 years, on at least 100 occasions Alexis had
dropped bundles of paper on his feet. in the summer of 1987 in the lunch room, in the presence
of several employees, Nexis threatened to burn down the grievor's parent's house. Although he
-.~ dld not know h(3w serious Alexis was, the gflevor reported the incident to NodiIto. He did nothing
,/
abo~t it.
The grtevor testified that since nothing had come out of his complaint to Mr. Doris either,
in May 1989 he met Mr. Andy Giendenning, Director of the Administrative Services Branch. Nodillo
reported to GIendenning, through his Immediate supervisor, Mr. Waldo Redekop, the Manager of
Pumhaslng, Supply and Distribution. He complained {o Glendennlng about Alexls' racial name
calling, his threats and his mimicking of the physical disabilities' of the grievor and Mary Byme.
Glendenning asked when this happened and the grievor informed that it had gone on constantly for
quite some time. Glendenning told the grievor that his allegations were very seri(3us, that if an
investigation is started, Alexis may retaliate and that the employer would not be able to protect the _
grievor from Alexis outside work. Giendenning then asked whether the grievor still wanted him to
pursue his complaint. The gr[evor said he did. Gtendenning advised that he would investigate the
allegations and get back to the gr[evor. The grievor testified that he never heard back from
Glendenr~ing or anyone e~se.
17
The griever testified that when he first came to the mail room as a "Go-Temp", he soon
realized that Nodilb3 tavoured his friends. Nodillo made it clear that if anyone wanted to work tn the
malf room, he had to go out drinking with him and do him favours. The griever testified that in
order to be in Nodillo's good books he started going out for drinks with the Jet-Set. He bought
Nodillo gifts [l'ke fake Rolex watches, bo~'/es of ~iquor, CDs and tapes and head-phones, when he
returned from trips to the US. Usually on Saturdays, the grlevor wo{JId buy drinks and food for
Nodillo when they went out after work. He testified that at a retirement party for Mr. George Laforte
(Redekop's predecessor) held at a restaurant, Nodillo asked the griever if he was interested in a
permanent job in the mail room. When the griever said that he was, Nodillo said, '~whether you get
one depends on how many fucking beers you can put on this table".
The griever testified that in 1986 he applied for 2 permanent positions unsuccessfully, one
as a driver and the other as a mail clerk. Beth positions were under Nodii]o. Prior to the interviews
for the driver's position, the griever observed 3 other employees, Allan Wong, Atex Heinz and Tony
Rego with the questions to be asked at the interview, together with hand written answers written in
by Nodii[o himself.
The grlevor testified that he felt frustrated and helpless because despite his compJaints, he
was not getting any help from his superiors and the harassment was continuing. Nodillo not only
failed to investigate and take action, but was actually participating in the harassing activity. He
complained to G~endenning, but had not heard back since. He went to the Asst. Deputy Minister
Doris, but nothing came out of that e~ther. He hated coming to work, which he described as "a helJ-
hole". He became paranoid and suspicious and tended to avoid people. He wss irritable and had
nightmares about what was happening at work, He was edgy at home and got mad easily at family
members.
18
The grievor testified that in his frustration about the apparent lack of action by the members
of management he had approached, as a last resort, he decided to approach the Deputy Minister,
Mr. Bernard Shapiro, whom he met in October 1989, The gdevor made Shapiro aware of all of his
problems - about Nodillo and his Nazi and anti-semitic propaganda and the racial harassment. He
complained about Tony Alexis' behaviour - his racial name ca[ting, mimicking of his physical
disability and physical threats and violence. He also informed that after he had made the
appointment to see Mr. Shaptro, during the morning on the day of the meeting, Alexis had
confronted the gdevor near the elevator in the 2nd basement, and punched the wall, shouting "l'It
beat the shit out of you". Shapiro promised that someone would be in touch in about a week.
On November 10, 1989, an Employment Equity Officer, Ms. Carol Smith met with the grlevor
and the grievor related to her the complaints he had about what was going on in the workplace.
Further meetings occurred between the grievor and Smith on November 15 and November 17, 1989.
Smith's notes from the three meetings were filed tn evidence, but she did not testify.
During the 3rd meeting Smith informed that she would be passing on the information she
had ~btained from the gdevor to her superiors and that a special investigator would be taking over.
Shortly thereafter the grievor was informed that he was being transferred to COMSOC pending the
completion of the investigation. He was given an appointment to meet Ms. Lynn Thompson, a
lawyer in the law firm of Hicks, Morley, Hamilton, Stewart, Storie who had been appointed as
investigator.
Ms. Thomson interviewed the grievor on three separate occasions, on December 4, and 20,
1989 and January 2, 1990. Mr. Ross Dunsmore, another lawyer With the Hicks law firm (and
counsel for the employer in this headng) was present for a part of the December 20th Interview.
At that meeting Dunsmore suggested to the grievor that as a result of the investigation no one
~9
would be disciplined or discharged and that everyone would go back to thelr own jobs. The grievor
disagreed that this was an appropriate result.
During the course of the investigation, Alexis was suspended with pay. At the end of
January 1990 the grlevor was asked to attend a meeting with management. He attended with a
union steward. Mr. Glendennlng and Mr. Bob Benanati, the'Director of Human Resources attended
on behalf of employer. The evidence Indicates that Glendenning informed the grievor that as a
result of a thorough investigation carried out by Ms. Thomson the employer had concluded that the
allegations made by the grievor were unsubstantiated and further that the allegations made by the
grievor with regard to Nodillo were malicious. He was informed that Nodil[o would be removed from
the mail room and that he and Alexis would be returning to the mail room. Glender~ning stated that
while the investigation revealed racial attitudes by Alexis, it had not been established that Alexis had
made the grievor a particular target. Giendenning suggested that since Nodilio was popular with
many mall room employees, the allegations the grievor had made against Nodillo may not be
appreciated by those employees and that the grievor should consider transferring out of the mail
room for his own safety. He was offered a Clerk 2 position there.
The grievor testified that a day later he informed Glendenning that he would not accept the
transfer offered. He testified that the Clerk 2 position had a lower rate of pay than the driver
position he had at the maiJ room and that he fe~t that as the victim of harassment, he should not be
the one to be penalized with a demotion.
Early in February 1990, both Alexis and the grievor resumed their positions in the mail room.
Nodillo was moved to a managerial position on the 7th floor of the Mowat Block, which constituted
a demotion of one level for him. Redekop assumed Noditlo's supervisory duties in the mail room
on an interim basis.
20
The grlevor was not provided a copy of the report prepared by investigator Thomson. Nor
was he told that a report existed. He was not informed as to what findings, i~ any, were made
against Nodi[Io, Nexis or Heinz as a result of his allegations. However he understood from
Glendennlng that it had been concluded that his allegations against Nodillo were not only
unfounded, but aisc malicious.
Accordlng to the gdevor, after Nodiilo was removed and he and Alexis were returned to the
mail room, Alexis and Heinz intensified their harassing conduct towards him, The racial name-
ca/ting and the mImicking of his ~imp became routine, despite attempts by the grlevor to avoid the
two.
· .The gdevor testified that on March 30, 1990, he was returning to the mail room from a run,
when he encountered Heinz. Heinz told the gdevor, "When I get out of here I am going to get you".
The grievor ignored him. Shortly, the two met again at the sub-basement exit to the parking lot.
Heinz was carrying a box of paper. As they passed, Heinz mumbled something and dropped the
~box, weighing about 20 klgms, on the grievor's foot and gave the grievor a couple of jabs on the
· left side of his face. The gdevor immediately reported the incident to Redekop. Redekop stated
that Heinz had submitted his resignation, that it was his last day of work and that therefore there
was nothing the employer could do, but that if he so wished, the grJevor, could report the assault
to the police and file criminal charges. The grievor went to Queen's Park Security, who also advised
that he could go to the City Hall and file charges if he wanted to. When Glendenning became
aware of the grievor's allegation, he instructed Redekop to get Heinz off the road and give him the
rest of the day off. Heinz returned from his run around 11.30. Redekop informed him that he had
instructions to give him the rest of the day off and he was escorted ou~. The uncontradicted
evidence is that nothing was said to Heinz about the grievor's allegation about being assaulted, and
that the employer took no further action about the alleged assault. The grievor testified that shortly
21
after, he took Mr. Paul Orlicky, a member of management at the Human Resources Dept., to the
scene of the assault and showed him two papers which had dropped on the floor when Heinz
dropped the box on his foot and that Orlicky picked up the papers and put them in his pocket.
The grievor proceeded to lay cdminal charges against Heinz. On several subsequent
occasions, a police officer from Division 52, a Mr. Goodfeltow, informed the grievor that he had been
unable to serve the summons on Heinz and suggested that Heinz may be avoiding service. He
Informed the gdevor on the final occasion that if the charge was to be pursued, a warrant would
have to be obtained for the arrest of Heinz, and asked If the grievor wished to do that, Since
several months had passed by then, the gdevor decided not to pursue the charges.
The grievor also testified about an assault by Nexis on June 21, 1990. He stated that
around 2:45 p.m. he was waiting for the elevator on the 2nd basement, when Alexis came there,
looked around as if to see if there was anyone else around, and stated "Steve Heinz and I are going
to get the Vietnamese gangs after you." After a short pause he said "You think I am joking eh". The
grlevor testified that he ignored Alexis and looked the other way. Alexis came right up to him and
stood nose to nose, looked around and hit the left side of the grlevor's face. The blow landed hard
on his Jeff ear and the s~e of his head. Then Alexis left the area.
The grievor testified that as a resuit of the blow he was in pain and had "ringing" in his ear.
He immediately called the Police and reported the incident to Queens park Security also. Then he
went looking for Mr. GtendennJng. Mr Peter Buck was acting for Glendenning that day. The grievor
related the assault to Mr. Buck. Buck called Redekop, who came down and spoke to the Police
who had arrived by then, The grievor made a statement to the Police Officer. The officer
recommended that the grlevor proceed to City Hall and lay a pdvate information. The grievor told
Redekop and Buck that he was leaving work to go to see a doctor and to lay criminal charges on
22
a private information at City Hall. He proceeded to Women's College Hospital Emergency Dept,,
where he spoke to a Dr, Dunn, Dr. Dunn told the grievor that she had made a record that the
g[~evo~ had v~s'~ted the hospital and reported an assau~ at work and instructed him tO*seehis family
physician. His family physician, Dr. Young examined the grievor and said that some fluid had
formed in his ear and prescribed an antibiotic and some ear drops and also referred him for an x-
ray of the ear.
On the afternoon of June 21 Glendenning, Redekop and Mareski met with the grievor. They,
Informed the grlevor that Alexis had denied having any contact with the grievor and that since there
was no conclusive evidence to substantiate the grlevor's aJlegation of an assault no action wou~d
be taken. However, the grievor was advised that Nexis would be transferred to the Distribution
Centre. Alexis was moved to the Distribution Centre two weeks later.
However.- according to the grievor that did not soive the problem completely because the
Distribution Centre was on his run. He testified that on two occasions he encountered Alexis when
he went to the Centre to make detiveries. Alexis challenged him to go downstairs and threatened
to hit him. The grievor reported these threats to Mr. Doug Cockbume. who by then had been
appointed as the permanent replacement for Nodiilo, as supervisor of the mail room. Cockburne
advised the grievor a few days ]a~er that the Distribution Centre had been removed from his run in
order to avoid contact with Alexis.
On September 20, 1990 the criminal trial took place with regard to the alleged assault of
the grievor by Alexis on June 21. The transcript of the trial was filed in evidence, Alexis in his
testimony at trial stated that the Director and the Manager at his workplace had heard the grievor's
evidence relating to this alleged assault and had not taken any disciplinary action "due to past
precedent of the grievor fabricating and blowing things out of proportion". He further testified that
23
as a result of the grievor's complaints, the employer had launche~ an Investigation. He stated that
the investigation did not find the allegations of racist acts or any of the grievor's other accusations
to be valid. He told the court 'I was found clear'. He denied ever havir~g seen the grievor on June
21st Iet alone assaulting him, and took the position that the grievor had fabricated the whole story.
The judge found Alexis guilty of assault and sentenced him to 5 days in jail and a fine of $1,000.00.
The judge explicitly stated in his judgement that he found Alexis' credibility to be "dreadful"and that
he had blatantly lied to'the court.
Mr, Shawn Tivy was employed in the Mail Room as a mail clerk from 1979 to 1982 before
transferring to the Distribution Centre, where he worl<ed till 1987. His evidence indicates that
Nodillo's pro-nazi and anti-semitic behaviour even pre-dated the arrival of the grievor and Alexis tn
the mail room. Tivy testified that during the time he worked in the mail room Nodillo was known
as "Groupen Furer', the title of a high ranking officer in Hitler's army. He testified that during '
conversations at work, frequently Nodillo would discuss the virtues of Adoif Hitter and Nazi
Germany. T[vy testified that Nod[fro "worshipped Nazi Germany and on a davy basis gave his
opinion that Hitler had the right idea in exterminating Russians and Jews and attempting to conquer
the world." if Nodillo wished to admonish someone, he would say "You should be sent to
Auschwitz", referring to the Nazi concentration camp. Tivy testified that these discussions occurred
between Nodillo and emptoyees under his supervision.
Tivy further testified that Nodiilo had derogatory nlclmames for many racial groups, inctuding
"Polacks", "Niggers", "Pakis" and "Gookers". Nodil[o doodled swastika symbols on paper constantly
and had Nazi paraphenalia in his office including a SS hat and a collection of shoulder patches from
Nazi uniforms.
Tivy testified that during his period in the mail room, NodilJo regularly went out drinking with
a group of employees known as the Jet Set. Frequently they would go out for lunch anti return late
24
and sometimes not return to work at ail. He testified that he attended some of these at the start but
stopped because he was upset with Noditlo's holding court and preaching, his most common topics
being Nazism and current world events. '--- -
Tivy testified that one day Nod]llo had gone out for lunch with about 10 out of the 15
employees in the mail room and not returned. Nodillo's supervisor (Redekop's predecessor) Mr.
George Laforte happened to come down to the mail room, Tivy informed Laforte that Nodi[Io's
group had gone for lunch and not returned and that it happens often. He told Laforte that the Jet
Set members did little work, but spent their time listening to Nodillo's speeches on Nazism. He
informed Laforte about Nodillo's pro-Nazi and racist conduct. According to TiW, Laforte merely
listened and nodded his head and left, He did not hear anything back from Laforte, but the
following day it became ctear to him that Nodilio knew "Word for word" what he had told Laforte.
Nodil[o warned Th/y, stating "Next time you spout off, you should be carefui who you spout .off to".
Tivy testified that it became dear to him that he was not going to be in the good books of Nodillo
and the Jet Set, and decided that he should get out of the mail room. He applied and obtained a
transfer to the Distribution Centre.
Tivy testified that he had no trust in Laforte because Laforte and Noditlo were great friends.
Therefore in 1984 or 1985, after he had transferred to the D'~stribution Centre, he approached Mr.
Redekop, (who had replaced Laforte) and basically gave him the same information he had provided
to Laforte about Nodillo's pro-Nazi and racist conduct in the mail room. Redel<op listened, but TNy
never heard back from him either.
In 1987 just prior to his leaving the OPS, an employee in the mail room Mr. Collin Vernon
sought Mr. Tivy's assistance with regard to a complaint he had about not getting a job he had
applied for. Vernon felt that Nodillo had discriminated against him because he was a black. Tivy
25
met with Mr. James Doris (Asst. Deputy Minister) on Vernon's behalf. During this meeting Tiw told
Doris that Nodillo was a racist and related the racist conduct he had observed during his 8 years
with the Ministry. According to Tlvy, Doris listened to his story and advised him that he should take
ap the matter wlth Mr. Glendenning. Subsequently he met with Glendenning and spent
approximately one hour, relating once again everything he knew about Nodillo's racist and pro-nazi
conduct. According to Tivy, Gtendenning's only response was to say that the job Vernon was
complaining about had been properly awarded. He said nothing about TIw's recitation of racism
and pro-nazi conduct on the part of Nodillo.
Douglas Clare, worked as a driver in the mail room from May 1987 to April 1990, He
testified that starting in the fall of 1988, Nexis constantly terrorized him at work. He swore, made
crude remarks, threatened him with physical harm and several times exposed his private parts to
Clare. Alexis would put his fist near Clare's face and say things like "t'11 slit your throat" and "['it beat
the shit out of you". In the lunch room, Alexis would come from behind and cough or spit into
Clare's food. Clare testified that over a pedod of 1-1/2 years he comptained constantly, on average
2 or 3 times a week, to Nodl]lo about Alexis' harassment. Nodillo's normal response was to laugh
and say "Just go back to work'. 90 percent of the time when he went to Nodi~o's office ~o complain
Alexis would be there. Once when he went in, Nexis started to hit Clare on his genitals with a stick
anti both Nodiilo and Nexis had a good laugh,
Clare testified that he was scared to report to work because of Alexis' conduct. He Was
constantly in fear of his life and even contemplated suicide. He had to seek medtcat help. Since
his complaints to NodJ]to were not acted upon, on 3 or 4 occasions he took his concerns to Mr,
Vince Goodatf of the Human Resources Dept., during late ~989 to early ~990, but nothing happened.
26
Clare testified that Nazi ideology was prevalent fn the mail room during his tenure there.
Whenever Nexis entered Nodillo's office or the lunch room, if Nodillo was present, Alexis would
stamp his foot and raise i~is h~-in a Nazi salute, exclaiming "Hiel Hitler". Nodil[o would snicker.
Clare testified that Alexis' pro-Nazi attitudes were well known to everyone inciuding Nodillo, because
in the lunch room Alexis openly sang the praises of Hitler and Nazi Germany. He talked of "White
Supremacy" and stated that the allied forces should all have been killed and Hitler should have won
the war. He said that Nazism should be the world order. He testified that he had observed Alexis
mimicking the physical disablJities of Mary Byme and the grievor and heard racial slurs like "yellow
chink" and "yellow puke" being used by Alexis.
The evidence indicates that after the gflevor made his complaint'to Glendenning in May of
· 1989, Glendenntng verbally requested Redekop to investigate the grlevor's complaint. Redekop
testified that he could only recall that Glendenntng told him that Alexis had called the grievor names
and used vulgar language. He did not recall Glendenning telling him that the grievor had alleged
that Alexis' conduct had racial overtones or that the grievor felt physically threatened. When union
counsel asked Redekop directly whether he was informed by Glendennlng that Alexis had used
phrases llke "Chink" and "fucking gooker" and that he mimicked the grievor's limp, the answer was
in the negative. Redekop testified that he did not take any notes during his investigation and did
not meet with the grievor to find out the specifics of his complaint because he saw his role as
merely to find out from Alexis if he admitted or denied calling the grievor names. Other than getting
Alexis' version, he did not see it as his role to investigate anything by talking to any other
employees, who may be able to corroborate the grievor's allegations, He merely asked Alexis if he
had "called names" at the grievor and Nexis responded that "nothing had happened and that the
grievor had fabricated everything". However Redekop testified that Alexis nevertheless apologized.
He reported back to Glendenning, e{so verbally.
27
Redekop testified that in addition .to the foregoing complaint from the grievor, he had
received complaints from several other employees about generat harassment at work from Alexis.
Ms. Frances Sommerville made two complaints in 1989 about Alexis' vulgar and abusive language
towards her and towards other employees. Ms. Mary Byrne complained around the same time that
Alexis and another employee, a Mr. Biggs, threatened her by bumping into her desk intentionally
with their mail carts. Redekop testified that in each case his investigation consisted of confronting
Alexis in the presence of Nodilto. In each case Alexis denied the allegations but at the same time
told Redekop that he regretted if he had caused any problems and promised that it would not
happen again. Redekop testified that since it was one employee's word against the other, he could
not determine what the truth was. As he put it "since there were no witnesses there was no proof
one way or the other". Nevertheless, he testified that in each case he gave Alexis a "verbal
warning'. He testified that he had learned in a human resources course that except in a very
serious case like "pul'([ng a knife', there must be 4 or 5 oral warnings in a short period of IIme for
similar conduct, before an employer may impose the next step in progressive discipline,
Subsequently, Clare made a further complaint to Redekop about Alexis harassing him in the
lunch room. Redekop asked Noditlo to Investigate. Nodillo reported back that Alexis had not
denied the allegation and had apologized. In consultation with Glendenning, a written reprimand
dated December 1, 1989 was issued to A/axis. Nexis protested, claiming that all of the
complainants were lying about him. He filed a grievance and took it to arbitration but the discipline
was upheld by the Grievance Settlement Board.
Mr. Andy Glendenning, the Director of the Administrative Services Branch testified that when
the grievor made his complaint to him in May 1989, he Instructed Redekop to investigate the
complaint. He testified that Redekop reported back that Alexis acknowledged the allegations and
made a commitment to not repeat the conduct. As a result, Glendenning considered the matter
28 i
closed. Glendenning admitted that he failed to get back to the grievor to report on what the
outcome of the Investigation was, although he had made a commitment to do so.
Glendenning testified that Alexis had been given 4 verbal reprimands in 1989 for harassing
Ms. Sommervilie (twice), Ms. Byrne and the grievor. When Alexis committed a similar offence again
by harassing Douglas Clare in November 1989, he was given a written reprimand. He testified that
this was In accordance with the principle of progressive discipline.
Glendenning testified in chief that no one raised any concerns about Nodi]lo and that the
grievor brought to his attention complaints about Nod[lio Only-long after" the Hicks investigation had
started. Thus, until that time he was not aware of any misconduct by Nodillo involving anti-semitic
or racial attitudes.
Glendenning testified that following the Issuance of the Investigation Report he discussed
the appropriate employer response with Asst. Deputy Minister, D.A. Palozzi and Benanati, Director
of Human Resources. He met with the gdevor, who had a union steward with him. He testified that
he informed the grtevor that as a result of the investigation into his complaint his allegations were
found to be unsubstantiated. The grievor was advised that he would return to his position in the
mail room, but suggested that the grievor consider tansferring to a different location. He denied that
he told the grievor that his allegations against Nodillo were "malicious". According to him, what he
stated was that the ~Jdevor should have 'made sure that his allegations were well founded, 'He
testified that he informed the gdevor that "the report indicated that there was no specific harassment
of" of the grievor, that the "harassment was more wide-spread" and that the grievor's racism
allegations were "unsubstantiated",
29
He testified that the grievor was in fact oflered a transfer to the Independent Learning
Centre, after negotiating for such an arrangement with the management there. He testified that it
was a Clerk 2 supply position, which had a pay rate Which was "a few cents an hour less". The
grievor declined this offer.
Glendenning testified that following the issuance of the Investigation Report he also met with
Alexis. He was informed "that the allegations against him were found to be unsubstantiated", and
that he woutd be returning to his position in the mai~ room. He testified ~ha! he also generally
counsel[ed Alexis "about his behav[our towards colleagues".
A slmilar meeting was held with Nodi[fo. He was advised that as a result of the investigation
"he was found to lack good management control over hts employees". The following letter dated
January 25, 199~ was Issued to Nodlllo:
Thts is to confirm our discussions arising out of recent investigations
concerning harassment allegations between other employees under your Immediate
supervision. It was determined that you have been grossly derelict in carrying out
your Job respons.[bilitles. Specifically the findings are as follows:
1. On numerous occasions, you failed to exert the necessary
management control, guidance and leadership in the workplace by
knowingly permitting the buItying of employees by a peer,
2. You have betrayed the confidence and integrity of your position
and have violated the ministry's interests in providing job interview
questions tO an employee in advance,
In view of the above, it has been decided to dem.ote you from your position
of Supervisor, Mail and Messenger Services, classified at the AGA 13 level to the
· position of Purchasing/Expeditor, for a period of up to one year, effective Monday,
January 29, 1990. While in this role your classification will be at the AGA 12 level
and your salary will be red-circled. You will be provided opportunities for
supervisory development with a view to returning to your former classification level
of AGA 13, but not to the position of supervisor, Mail and Stores Services.
Glendenning testified that finding number I was set out in the letter because the report
indicated that Nodi[lo was not a strong manager, He fraternized with staff after work and he tried
30
to be a peace-maker between employees and did not admonish inappropriate behaviour. Finding
No. 2 was a result of the evidence that came out during the investigation that Nodillo had provided
to the grlevor the answers to the job Interview questions, in advance of the interview,
Glendenning also had a meeting with the mail room staff as a group. He testified that the
staff was informed that Nodillo "will not be returning to the mail room" and that Redekop wouJd be
taking over as superVisor on an interim basis. He testified that he also told the staff "lets put tt~is
incident behind us and get on with our lives - that we must get along with each other if we expect
a happy workplace."
Glendenning test/f/ed that shortly after this, in early March 1990, Clam filed a written
complaint alleging harassment by Alexis. He confronted Alexis. According to him Alexis was
"contrite as usual" and promised to behave in the future. In accordance with progressive discipline
Alexis was suspended 10 days without pay. Alexis grieved. This grievance was one of severat
grievances settled at the time Alexis' employment with the Ministry was terminated in September
1990.
Glendenning testified that on. March 30, 1990 it was reported to him that the grievor had
atleged that Heinz had assaulted him, He testified that since Heinz had already submitted his
resignation and that was his last day of work, "there was no point in disciplining him, so we simply
escorted Heinz out",
Glendenning testified that around this time the grievor again requested that he be
transferred out of the mail room. He again made significant effort and obtained approval to transfer
the.grtevor to the independent Learning Centre - the same position the grievor had deciine before.
When this position was offered to the grievor he (Jec[ined once more.
31
Glendenning testified that upon his return from vacation he found out that the grievor had
alleged that he was assaulted by Alexis on June 21, 1990, outside the second basement elevators.
When Gtendenning met with Alexis, he denied ever seeing the grlevor that day, let alone assaulting
him. When asked what conclusions he reached, Glendenning testified, "We had no evidence, no
witnesses, as to what took place. Obviousfy something occurred, but we didn't know what."
Glendenning testified that in deciding to take no action he considered the fact that there were no
witnesses to the alleged assault and the fact that the grievor had told him that he would be laying
crimina! charges. Then he said "Also, we already had several grievances from Alexis. We didn't
want to be seen as going on a vendetta against him."
.... Subsequently, the employer transferred Alexis to the Distribution Centre. Glendenntng
· agreed under cross-examination that the transfer was not a disciplinary response arising out of the
alleged assault on June 21, 1990.
The grievoi' laid a private information charging Alexfs with assault. Following a trial, Alexis
was convicted. The crown requested Gtendenning to testify at the sentencing hearing as to the
racist attitude of Alexis. Glendenning agreed to testify, but not on that specific issue, because as
far as he was concerned the racism allegations against Alexis had been found to be
unsubstantiated. Following Alexis' criminal conviction, the employer concluded that the assault in
question was established and. Alexis' employment was terminated effective September 20, 1990.
A grievance filed by Alexis was settled.
Under cross-examination Glendenning conceded that while the first time the grievor directly
complained to him about Alexis was in May of 1989, Rectekop had made him aware of the grievor's
complaint in February 1987 that Alexis had assaulted him in the lunch room. However, he testified
that he was not told by Redekop that the alleged assault had any racial overtones. Nodillo did not
32
report anything at all to him. While Nodillo wrote an incident report about this incident, Glendenntng
testified that he did not see this until preparations.were undertaken for this Grievance Settlement
Board hearing.
The issues
The union has conceded that since article A. 1 Came into effect only on June 15, 1990, the
Board's jurisdiction under that article is limited to the period from June 15, 1990 to October 23,
199{3, the date the grievance was filed. Nevertheless, over the objection of the employer the Board
received evidence as to events pre-dating June 15, 1990, for a number of reasons. Flrstly, the past
history of racial attitudes and conduct is relevant to understand the particular events which are
within the board"s jurisdiction in the proper context. Under section 20(8) of the Crown Employees
Co[lectlve Bargaining. Act the Board has a wide latitude to 'hear and consider any evidence which
it considers relevant. (.Re Mirosoltn, 2054/90 (Verity). In Re TaYlor-Baptist, 163/87 (Kennedy) in
rejecting an argument by the employer that evidence of harassment ought to be restricted to events
that had taken ptace within 20 days prior to the filing of thegrievance, the Board reasoned at pp.4*5
as follows:
Once the grievance is properly before us within the procedures laid down Jn the
collective agreement, the appropriate scope of evidence is governed by the normal
principles dealing with the admissibility of evidence and its relevance to the issues
to be arbitrated, in the context of labour relations, matters cannot and ought not
to be determined in a vacuum, and past events are customarily covered in the
evidence in order to place a particular incident that is the subject mater of a
grievance into [ts proper context in the light of the on-going employment
relationship. It is immaterial that those past events can no longer form the basis.
of a grievance due to the time limit provisions of the collective agreement, if we
were to accept Mr. Benedicts objection that evidence be limited to events occurring
no earlier than 20 days prior to the grievance, we woutd in substance exclude the
greater proportion of evidence that is heard in numerous cases by this board on
a day-to-day basis.
Just as in that case the fact that the time limits prevented the union from grieving those past
events did not preclude the Board from hearing evidence which it considerecl relevant, here the fact
33
that the union coutd not grieve events pre-dating June t5, 1990 under article A does not prevent
the Board from hearing that evidence.
Besides the neet1 to understand the context within which the alleged discrimination occurred
subsequent to June 15, 1990, in our view, the past history pre-dating June 15, 1990 is directly
relevant in assessing the adequacy of the employer's response to the gflevor's complaints about
dis(~rimination as well a~ unsafe work conditions which are core issues in this case. What racist
attitudes existed in the past and the extent of the employer's know~edge about that, are cleady
relevant in determining whether the employer's response was reasonable and in compliance with
its obligation under Article A. 1, as well as under article ~8.1.
In dealing with these grievances, it is also relevant to note that at the relevant time the
following policy relating to "personal Harassment' was effect:
PERSONAL HARASSMENt[
General Policy:
it is the policy of the Government of Ontario that every employee in the Ontarto
Public Service can expect to be afforded a work environment free of persona!
harassment.
Author{tv Reference:
The Ontario Human Rights Code, 1981 provides under the Sections shown that:
4.(2) Every person who is an employee has a right to freedom from harassment in the
workplace by the employer or agent of the employer or by another employee
because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed,
age, record of offenses, marital status, family status or handicap.
6.(2) Every person who is an employee has a right to freedom from harassment in the
workplace because of sex by his or her employer o~-agent of the employer or by
another employee.
(3) Every person has a right to be free from
la) a sexual solicitation or advance made by a person in a position to
confer, grant or deny a benefit or advancement to the person
34
where the person making the solicitation or advance knows or
ought reasonably to know that it is unwelcome; or,
(b) a reprtsat or a threat of reprisal for the rejection of a sexual
solicitation or advance where the r~prisal is me_de or threatened by
a person in a position to confer, grant or deny a benefit or
advancement to the person.
7. Every person has a right to claim and enforce his or her rights under this Act, to
institute and participate in proceedings under this act and to refuse to infringe a
right of another person under this Act, without reprisal or threat of repHsa~ for so
doing.
8. No person shall infringe or do, directly or Indirectly, anything that infringes a right
under this part.
D~finittons:
"Employee"
"Employee in the context of this policy refers to management, other excluded,
bargaining unit, contract and temporary staff.
"Harassment"
The Ontario Human Rights Code definition of harassment and its interpretation in
A Guide. to the HumAn Rights Code shall apply:
Ontario Human Right% Cod~, 1981, definition:
"Harassment means engaging Jn a course of vexatious comment
or conduct that is known or ought reasonab[y to be known to be
unwelcome."
.~,.~ Ir)terpretatJon from A Guide to the Human .Riohts Code~ 1981:
.. "Harassment is a cot~rse of comment or cond[zct consisting of
- . words or actions that disparage or cause humiliation to a person
in relation to one of the prohibited grounds."
Applicability:
This policy applies to all ministries and to agencies, .boards and commissions
subject to Management Board policies.
Res. ponsibilitv/Accountabitit~,. Deputy Ministers: Deputy ministers are responsible for:
a) ensuring that aJJ employees are informed of this policy;
b) developing and implementing a process whereby all employee
complaints of personal harassment are responded to immediately
and, if found warranted, remedied without delay;
c) including in the process the following minimum requirements:
all complaints are to be fulfy and properly investigated;
. responsibility for conducting investigations shall be delegated to
an appropriate executive who may in turn appoint one or more
officers to carry out investigations.
Resr3onsib~l~ty/Accountabi~ity. Man~gers:
Managers are responsible, upon becoming aware that harassment is occurring, for
dealing with it even though no forn~t complaint is ~o~lhcoming.
The Human Rights Code provides that a person who has the authority to prevent
or discourage harassment may be held responsible for failing to do so,
Responsibilities, tnvestiqating Officer:
The officer responsible for conducting an investigation is responsible for:
interviewing both the complainant and the alleged offender as
soon as possible;
interviewing any witnesses;
. documenting the situation accurately and completely;
notifying the parties concerned of any decisions arrived at as a
result of the investigation;
treating all material as confidential and not divulging such material
to unauthorized persons.
Responsibilities. Employee:
The employee:
shall make the disapproval and/or unease known to the offender
Immediately in a clear manner;
where circumstances make this difficult, ought to seek assistance
from personnel services, immediate supervisor or afffirmative action
manager;
may file a written complaint in accordance with the ministry's
procedures;
ought to keep a record of dates, times, the nature of the
behaviour, and witnesses, if any.
Remedial Action:
If an investigation confirms that an offence has occurred and remedial actfon is
warranted:
action shall be taken without delay;
sanctions imposed on the offender must be applied with an
understanding of the seriousness of the misconduct and follow the
general principles-of corrective discipline;
under no circumstances shall this remedial action, in a
substantiated case of harassment, penalize the complainant.
Counselling:
Counselling shall be made available to assist those involved int he compiaim.
36
Eml~oyee's Riaht of Redress:
This policy does not infringe upon an employee's right of redress through the
procedures establishe_d by the Human RigHts legislation.
With regard to article 18.1, the Board has now clearly establishe~ that the employer's
obligation is to take steps to eliminate "unnecessary" or "avoidable' risk. In Re. WattsLKlncj, 1367/90
(Kapian) at pp. 26-27 for instance, the Board stated as follows with regards to the employer's
obligation under article 18.1 to correctional officers:
...To be sure, risk is part of the job. However, unnecessary risk is not.
The employer has an obligation to take reasonable precautions for the safety and
health of its employees. Like other panels of this Board, we are of the view that
"reasonable" does not mean "every'. And we are a~so of the view that what is
reasonable will depend greatly on the facts of each case, and must Involve a
balancing of interests of the employees and the employer. In the Instant case, the
fact that no employee has been attacked or injured while conductlng a patrol is
ne/thor here nor there in the same way that the concerns raised in the Sto.~k'well
case (1764787, Wilson) had not taken place. It is obvious that the potential for
injury exists.
In our view, it is not unreasonable in a case where the union has demonstrated
some degree of risk to the safety and health of employees to require the employer
to explain, if not justify, the necessity and reasonableness of that employer-imposed
risk ....
In Re OPSEU (Union Grievance) 69/84 (Samuels) at pp. 6-8, the Board stated:
Article 18.1 speaks of reasonable provisions for the safety and health of the
employees. And this is echoed In section 14(2)(g) of the Occupational Health and
S.afety Act, which imposes a duty on an employer to "take every precaution
reasonable in the circumstances for the protection of a worker...There is no
obligation to guarantee an employee's safety against every possible risk, no matter
how remote the possibility that it will occur. The collective agreement and the
legislation contemplate "reasonable" precaution...It is necessary to balance the
safety of the employees against the need for care and custody of the inmates and
the purposes of the institution. Proper planning can reduce the potential or
likelihood of incidents, but it Is not possible to eliminate all conceivable risks.
Therefore, the issue for the Board to decide is whether ~he employer contravened article
18.1 with regard to the grievor by exposing him to unnecessary or avoidable risk.
37
It iS the union's position that at least from 1987 the employer has flagrantly violated its own
policy and the Ontario Human Riqhts Code_ and that the violations continued beyond June 15, 1990,
resulting in contravention of article A. l o Furthermore, it is submitted that the emPloYer permitted
a potsoned work environment to develop and to continue which exposed the grievor to undue risk
and in fact sublected btm to verbal harassment and physical assaults, thereby resulting in a
contravention of article 18.1. Citing Re Glengarry Industries (1989) 3 L.A.C. (4th) 326 (Hinnegan)
and Re Wentworth County Board of Education (1984) 14 LA.C. (3d) 310 (Devlln), counsel submits
that the employer's obligations under arttcle 18.1 must be seen in light of the obligations of the
employer under the Human Righ. ts Code, which was in effect throughout the period in question.
As noted earlier, none of the three persons, who face allegations of harassing the gdevor,
Nodillo, Alexis, and Heinz were called to testify. Therefore the grtevor's direct testimony stands
uncontradicted. While that by itself is not necessarily a reason to accept all of the gr[evor's
testimony, in the circumstances of this case we accept the gist of tt on a balance of probabtllties.
There was nothing about the grievor's testimony that causes us to doubt his credibility. On the
contrary, he has been consistent in the core aspects of his allegations as presented to the employer
and during his testimony before this Board. Furthermore, his testimony is consistent with other
evidence, the documentation as to statements made by other employees and the direct testimony
of other witnesses, tn many instances the grievor named individuals who were present at the time
of the alleged harassment. None of these individuals were calted to contradict the grievor. The
Board a~so notes that in the final submissions, employer counsel did not take the position that any
of the allegations made by the grievor against the individuals were not to be believed. Rather, the
thrust of its defence was that the employer ac~ed reasonabJy and effectively when the allegations
came to its attention.
Employer counsel stressed that in assessing the reasonableness of the employer's conduct
the Board should take into account (1) the '3naction" by the grievor and (2) the inaction of the union
and the t~arrlers created by the union which he claims hindered the employer.
Turning first to the conduct of the grievor, while the evidence is that the alleged harassment
of the grievor started in1987 and continued thereafter, he did not grieve until October of 1990. The
effect of that delay on the timeliness of the grievances is no longer in issue in view of the Board's
finding that in any event the employer had waived its rights under the timeliness provisions of the
collective agreement. However, the evidence is cJear and uncontradicted that while the grievor did
not formally grieve, at least from early 1987 the grievor complained to his supervisor and a member
of management, Steve NodiIIo, about Tony Alexis' racial name-calling, his threatening and his
mlmJcking of the gdevor's physi~l dlsabiJity. Besides, the employer's obligations under either article
A. 1 or article 18.1 do not only arise as a result of employee complaints. The employer has an
obligation to be ever vigilant to ensure that the conditions proscribed by those provisions do not
exist in the workplace, if it knows or ought reasonably to have known of the existence of such
conditions, the employer has the obifgation under the coflect[ve agreement to take steps to correct
the situation. In this regard, the evidence ls beyond dispute that a good part of the misconduct
attrJ/3uted to Alexis, occurred in the presence of Nodillo. Nodillo as a member of management, had
a du~y.to act regardless of any formal complaint from the grlevor, because conduct such as racial
name-calling, mimicking of a person's physical disability and threats of physical harm are so
obviously reprehensible and has no place in any workplace. The collective agreement requires the
employer to take action to put an end to such conduct, regardless of whether any employee had
formally complained.
The employer a~so relied on the fact that the grievor was himself a participant in the "Jet
Set" socializing. While the evidence is that the gr[evor did in fact participate from ~ate 1985, it is
39
clear that he disassociated himself from the "Jet Set" in 1987, soon after he was assaulted by Alexis
in February 1987. The grievor explained during his testimony that he participated tn the early per[od
when he was not yet a permanent employee, because Nodl[Io had made it clear to him that if he
expected to obtain a permanent job in the mail room, he had to be part of Nodillo's group of friends
and go out drinking with the group. This is a credible explanation which was also corroborated by
Shawn Ttvy, who testified that Nodilto had made it no secret that on1¥ employees who went oat
drinking with him would make it in the Mail Room. Tiwj testified that he also went out drinking with
the 'Jet Set" a few times but was disgusted and bored by NodiI~o's "holding court" on Hitler's virtues
and current world events. He testified that when he realized that NodiIIo did not like him, he
obtained a transfer from the Mail Room,
The point, in any event, Is that the grlevor did bring to the managements' attention the
probtems he encountered in a reasonably expeditious manner, i~estdes his constant complaints to
Nodillo about Alexis' name-calling, threats and the mimicking of his walk, in February 1987, he
complained to Nod[ilo that Alexis had assaulted him in the lunch room, and Queen's Park Security
was Involved. Both Redekop and Glendennlng became aware of this complaint. When the grievor
saw no action on the part on NodiIIo, Redekop or Glendennlng, he comptalned to the Asst. Deputy
Minister Mr. Jim Doris. He informed Doris about the assault, and the lack of a response from
management. Tivy who accompanied the grlevor, informed Doris about the racial name-calling
which went on in the mait room and at, oat Nodiilo's participation in that activity, and his preaching
of anti-Semitism in the workplace.
in May 1989 the grievor made a further complaint to Glendenning, about Alexis' racial name-
calling, about bls mimicking of the grievor's physical disability and about threats of physical harm.
He informed that this situation had gone on for "quite some time".
40
Finally, in October of 1989, the grievor went further up in the management hierarchy and
made a complaint to the Deputy Minister, Mr. Bernard Shapiro. He told Shapiro of all of the
complaints he had about Alexis, Nodillo and others.
Therefore, the evidence ls clear that on numerous occasions the cjrievor did bring to the
attention of the employer, the intolerable situation he faced at work. The issue is whether the
employer responded to those complaints in a manner consistent with its obligation under the
collective agreement.
The employer's contention that the reasonableness of its response to the (3rtevor's
complaints must be assessed in light of the conduct of the union has been addressed earlier in this
award, it remains to consider whether there is merit tn the employer's asssertion that the union
erected barriers, which hindered the employer's ablitty ~o properly respond to the concerns raised
by the gfievor, 'i'his refers to the fact that the union represented Nexis, when he filed grievances
against the employer.
Counsel points out that obligations under both article A. 1 and article 18.~ are joint
obligations. While not requesting findings that the union had contravened either provision, counsel
submits that when determining whether the employer Contravened the collective agreement, the
Board must consider the union's conduct as a significant factor.
The employer relied on Re OPEIU, local 267 v. Do_tatar Inc. and the Ontario Human Rights
Commission. Unreported, March 1992, (ant. Div. Ct.) where at pp. 13, the Court stated:
The rights of a complainant cannot be ~ost in the struggle to assess
competing interests of the Company and the Union.
Discrimination in the work place is everybody's business. There can be no
hierarchy of responsibility. There are no primary and secondary obligations to
avoid discdm{nation and adverse effect discrimination; Companies, unions and
persons are all in a primary and equal position in a single line of defence against
all types of discrimination. To conclude otherwise would fail to afford to the Human
RtQhts Code the broad purposive intent that is mandated. Any interpretation short
of this would, tn my view, be inconsistent with the philosophy and policy
enunciated by the Supreme Court of Canada in O'Mallev v. Simp~on-Sears.
The discrimination barrier created In the collective agreement slammed the
door on continued employment in the fact of a Seventh Day Adventist. The Union
aided the Company in the creation and erection of that barrier, it owed an equal
duty with the Company to dismantle that roadblock.
The Board does not see how that judgement assists the employer in this case. in Domtar,
the complainant, a Seventh Day Adventist was required to work every sixth Saturday. She
requested that she be permitted to work every sixth Sunday instead, because working on Saturdays
was contrary to her religious beliefs. The company was willing to accommodate her PrOvided the
union consented. The union would not agree unless the company undertook to pay the
complainant overtime rates for Sunday work as required by the collective agreement. The company
was not prepared to do that and the complainant's employment was terminated. The complainant
filed a complaint under the Human Rights Code naming the company and the union as respondents.
The Board of Inquiry found that there was adverse effect dlscrim[nat[on and held the company and
the union both jointly and severally liable because they each could have, but failed to,
accommodate the complainant. The DivlsionaJ Court upheld that decision.
In that case the circumstances were very different from ours. As the court stated at p. 12:
The complainant and the Company were satisfied with straight time
Sunday. All the Union had to do is say we will not grieve and there would have
been no problem.
Thus the union was found to be a direct participant in
the decision maklng process which resulted .in the adverse effect discrimination against the
complaint. In contrast, in the case before us the union did not come into the picture until after the
Investigation Report was issued in January 1990. There is no evidence to indicate that the union
42
was aware of the complaints made by the grlevor or of the employer responses. The undisputed
evidence is that neither the grievor nor the employer sought to involve the union.
It is no doubt preferable that employees bring any concerns that they might have to the
attention of the union as early as possible. However, it is understandable that particular employees
may not do so for various reasons. For instance, a particular employee may not go to the union
initially because he is not a 'believer" in trade unions. However, that by itself does not in any way
affect the employer's obligations under the collective agreement. Besides, if the employer was
aware that the obligatlons under the collective agreement provisions were joint, it remains
unexplained why the 'employer did not in any manner inform the Union of the complaints it had
received and seek input from the un~on on how to deal' w~h them. ~n Robt{:haud v. The Queen,
(1987) 40 D. LR, (4th) 577 (S.CC.) at p. 584 Le Dain J. observed with regard to the Canadian Human
Riahts Act as follows:
Indeed, if the Act is concerned with the effects of discrimination rather than
its causes (or motivations), it must be admitted that only an emptoyer can remedy
undesirable effects; only an employer can provide the most important remedy - a
healthy work environment. The legislative emphasis on prevention and elimination
of undesirable conditions, rather than on fault, moral responsibility and punishment,
argues for making the Act's carefully crafted remedies effective.
Similarly, in our view it is the employer who has control over the workplace and its
employees. It has an obligation,, quite independent from any obligations the union may have, to
ensure that conditions do not exist in £he work place which are inconsistent with the collective
agreement.
Some observation is also warranted about the employer's argument that the union threw
road blocks which hindered compliance with the collective agreement by representing Alexis with
regard to his grievances, The Board dismisses this argument as without merit. This employer
cannot seriously suggest that in managing its operations, it governs itself by the fear that the union
43
may represent a grlevor. If it did, it is highly inappropriate. The OPSEU constitution which was flied
with the Board has been interpreted by the union as entitling a grievor to unton representation in
every case. Therefore, the fact that the union represents an employee with regard to a grievance,
does not mean that the union necessarily condones the conduct of the employee. The union on
the contrary may be accommodating the employee's right to his "day in court". Even criminals
including mass murderers and rapists are afforded their day in court. Governments atlocate
precious tax dottars by way of legal aid in order to afford the accused the best possible defence in
court. It is rediculous to suggest that by providing legal aid funding for a defence counsel the
government condones the conduct of the accused or that the government is not concerned about
the gravity of the criminal conduct.
Simifarly, in the present case it defies logic for the employer to suggest that it was satisfied
with the existing conditions because it assumed that the union was satisfied. The employer (through
members of management) had been informed that racial name-calling, Neo-Nazi propaganda,
physical threats and other obvious forms of harassment were prevalent in the Mail Room. Surely
the employer does not suggest that because the union was silent, it genuinely believed that this
." state of affairs was acceptable.
Besides, as already pointed out, none of the employer witnesses testified that the union's
[ack of action in any way influenced their decisions. Therefore, the employer's argument is based
on a mere hypothesis and not supported by the facts. Indeed, under cross-examination Mr.'
Benanati, to his credit, testified that the employer would not let its actions be influenced by the fear
of grievances. _
For those reasons the employer's claim that its actions were somehow hindered or
influenced by the conduct of the cjrievor or the union is not valid. It is borne out by the evidence
44
that at various times the grievor brought serious concerns to the management's attention. In other
situations members of management were personally aware of unacceptable behaviour. The issue
Is whether the employer adequately responded, once the information came to [ts attention.
As noted, at this hearing the employer did not dispute, and the Board in any event finds on
the basis of the evidence, that the conduct attributed by the grievor to Nodifto, Alexis, and Heinz
is established. Them Is also no doubt that a work environment where racial slurs, racial name-
calling, Neo-Nazi and anti-semattc propaganda and mimicking of physic, a[ disabilities was practised
is contrary to the Human Rights Code of Ontario, which is in effect Incorporated into the collective
agreement through article A.1. it is trite to say that under the code and article A. 1, the employer
has an obligation to its employees to take reasonabte efforts to create and maintain a discrimination-
- free work environment. The employer witnesses did not dispute that. The defence of the employer
in essence is that when the existence of the objectionable environment c~me to its attention it acted
reasonably and efficiently to correct the situation. Counsel argued that under article A.1 there are
no absolute guarantees. The fact that an incident of racial discrimination by one employee towards
another occurs by conduct such as racial-name calling does not necessarily result in liability for the
employer. According to the employer, liability must be determined on the basis of the action the
employer took when the offending circumstances came to its attention.
In simJiar vein, there can be little doubt that a work environment, where an employee is
constantly harassed, subjected to threats of physical harm and actually physically assaulted is
inconsistent with article 18.1. That risk is not by any standards a "necessary" or "unavoidable" risk
for an employee holding the position of a driver in the Ontario Public Service. That much was not
disputed bythe employer. However, the employer's argument is that its obligation under article 18.1
is not to guarantee'a risk free workplace, but only to take "reasonable precautions", it is contended
45
that by responding to the grievor's complaints as it dfd, the employer fully complied with that
standard.
The Board agrees with the employer to the extent that under either article A. 1 or article 18.1
there are no absolute guarantees on the part of the employer. There is no strict liabili~j on the
employer, in that merely because an employee racially harassed or put another employee at a
health or safety risk, the employer is not thereby exposed to liability. The employer's liability
depends on its know[edge of the offensive conduct and its response to it. However, in considering
the employer's knowledge the test is not purely subjective. If the employer lacked knowledge
because it showed a lack of interest or did not have a reasonable system for detecting and
monitoring of offensive conduct, that does not exonerate it. To hold otherwise woufd be to make
the obligation imposed on the employer by the collective agreement provisions meaningless. The
employer would be abte to circumvent that obligation by merely closing its eyes and ears. The
parttes could not have intended that,
In Re C.U.P.E and O.P.E.I.U (1982) 4. LA.C. (3d) 385 (Swinton) at pp. 404-405, the Board
stated as follows:
In cases where one employee alleges harassment by a fellow employee,
the employer is not liable unless it knows or ought reasonably to know of the
harassment. An employer is vicariously liable, even in the absence of such
knowledge, only for the acts of its supervisors: See Dhillon, supra; Bell, supra.
An employer who receives a complaint about harassment by other employees and
does nothing to investigate can be held responsible for'the harassment because
of its inaction: see Continental Can. Co, v. State of Minnesota, supra, where the
Minnesota Supreme Court stated that while "the Act does not impose a duty on the
emptoyer to maintain a pristine working environment", the employer should take
appropriate action when it knows or should know of co-employees' harassment (at
p. 1814). Similarly, in Heelan v. Johns-Manville Corp. (1978) 451 F. Supp. 1382
(Dist. Ct. Col.) the court stated that an employer should investigate complaints and
"correct" violations of the law (at p. 1390). This does not necessarily require a
finding of truth - so tong as recurrence of illegal conduct, if any, is effectivety
prevented.
46
Pre-lnvesticlation
The Board' must examine the evidence as tp what the employer's actual knowledge was,
as well as what the employer ought reasonably have known, about the offensive conduct on the part
of the various individuals, Then the Board will examine what action if any was taken by the
employer towards meeting its obligation under the collective agreement,
The easiest part of the decision the Board is called upon to make is that relating to the
conduct involving Noditlo. As early as 1987, Alexis threatened the grievor with physicat harm.
Alexis and Heinz called the grie. vor racial names. That evidence is reviewed earlier in this award.
The uncontradicted evldence is that the grievor constantly complained to Nodillo and that Nodillo
'; did absolutely nothfng to Indicate to either Alexis or Heinz the seriousness of their misconduct. On
the contrary, the evidence is that NodiIIo did not take the grievor's complaints seriously, This Is
indicated 'by the evidence that Noditlo snickered and Iaughed when the grievor made the complaints
in front of Nexls. The Board can come to no other conclusion but that Nodilio's conduct is
Indicative of condonation of the harassment and that that would have encouraged the offenders to
continue their misbehavlour,
The evidence also indicates that Nodii[o himself actively participated in racist conduct. He
preached anti-semitism and made derogatory comments about many racial groups. He made
insulting comments about the grievor's physical disability and called the grtevor racist names like
"Chink". That evidence is also reviewed in more detaJJ earlier Jn this award.
As pointed out in Re C.U.P.E. and O.P.E.I.U. (supra) "an employer is vicariously liable even
in the absence of such knowledge, (only) for the acts of its supervisors". Nodillo, as a member of
the management is part of the corporate employer.. He clearly was aware of the harassment the
grlevor was suffering at the hands of at least Nexis. He did absolutely nothing to put an end to the
47
situation. Besides, he himself participated in racial harassment of the grlevor. Whether his superiors
were aware of that or not, the employer is liable for. NodiJlo's conduct.
With regard to the assault of the grievor in 1987, the evidence of Nodillo's inaction is glaring.
The evidence is uncontradicted that Constable O'Brlen concluded that Alexis' aggression towards
the grievor had racial overtones, that the assault was not an isolated incident and that further
incidents may be anticipated. He communicated this Information to Nodillo and advised him to
inform higher management of the situation. The evidence is that NodJJlo did exactly the opposite.
His report to the higher management was intended to give the impression that the incident was
nothing more than an isolated altercation between two employees. He completely ignored the racial
aspects of the incident and did not convey to his superiors that O'Brien suggested that the situation
be monitored.
Did the employer make a reasonable and fair investigation of this complaint? NodiJJo did
nothing to ensure that Alexis' conduct would not be repeated. Despite the serious concerns raised
by O'Brien about racist attitudes on the part of Alexis, that was completely ignored by Nod[Ilo.
When Nodil[o failed to act, the grievor reported to Asst. Deputy Minister Mr. James Doris, not only
about that assault and Nodi[lo's failure to act, but also about the on-going environment in the mail
room. The evidence [s uncontmdicted that the grievor and Shawn Tivy gave Mr. Doris a very
graphic account of the state of the mail room, about the harassment, racial name-calling and about
Nodillo's anti-semitic and pro-Nazi propaganda at work. Neither the grtevor nor Tiw heard from
Doris as to what, [f anything, he had done with .regard to the allegations raised. Since Doris did not
testify, the Board is left with the unavoidable inference that Doris took no action'whatsoever as a
result of the grievor's complaint. In fact Glendenning testified that Doris did not at any time inform
him that the grievor or Tivy'had made a complaint.
48
The Board now turns to the complaint the grievor made directly to Mr. Glendenntng in May
1989, which is described above. The grievor brought to the attention of Glendenning the constant
harassment he had to endure, including the threats, the racial name-calling and the mimicking of
his physical disability, Glendenntng's own report prepared in November 1989, (Exhtb[t 10 - tab 16B)
clearly acknowledges that the racist nature of Nexis' behavicur was communicated by the grlevor.
The grievor also informed that Alexis' harassment was causing him considerable distress. The
evldence Indicates that faced with an employee who had come to him tn distress as a resutt of racial
harassment and physical abuse by a co-worker, Glendenning admonished the grievor for coming
directly to him rather than go through the proper "chain of command". He also warned the grievor
that if the employer investigated his allegations against Alexis, Nexis may retaliate against the
grievor. He pointed out that the employer would not be able to protect the grievor from Alexis
outslde of work, In our view, ·whether or not so intended, Glendenning's attitude would have the
result of discouraging the grJevor from pursuing his rights under the collective agreement. Under
the law of Ontario and the collective agreement, the employer has a positive duty to take reasonable
steps to ensure a safe and discrimination-free workplace. To say the least, Glendenning's attitude
was not in keeping with that duty and insensitive to the serious situation faced by the grievor. To
raise the possibility of violence by Alexis in retaliation for having made the compliant, without also
reassuring the grievor that the employer would make every effort to prevent that, indicates or at
toast conveys to the grievor the impression, that the employer was not concerned about his plight.
it can only have the effect of discouraging the grievor from pursuing his complaint.
However, the evidence indicates that the grtevor did pursue his complaint. What was the
employer's response? Glendenning testified that he instructed Redekop verbally to investigate the
grievor's allegations. He understood that Redekop did the investigation, that Alexis had admitted
the a~leged conduct and promised that it wou~d not happen again. Glendenning testified that Alexis
49
had responded "in a way which gave us the impression that the problem was solved and that no
further action was necessary."
There are many serious flaws wlth this position. Despite the serious nature of the
allegations, neither Glendenning nor Redekop documented anything. Not the grievor's complaint
to Glendenning nor Alexis' response when questioned. Moreover, the communications between
Glendenning and Redekop were done verbally [n casuat conversation. Therefore not surprisingly,'
no proper investigation ever took place. While G[endenning testified that he instructed Redekop to'
Investigate the grtevor's allegations he could not recall during testimony what he conveyed to
Redekop as being the "allegations". Redekop on the other hand testified that Glendenning only told
him that "there had been some name-caJiing and use of vulgar language" by Atex[s. There was no
reference at all to any racist conduct. He did not understand that he was to carry out an
Investigation, "but only to get Alexis' side of the story". Therefore he did not even speak to the
grlevor,
While Glendenning testified that he decided no further action was necessary because Alexis
had ';~cknow[edcJed that his conduct was inappropriate", when asked in cross-examination what
wrongdoing Alexis had acknowledged, Glendenning was unable to specify. Furthermore, Redekop's
testimony ctearly indicates that he did not carry out any investigation at all as to whether the
grievor's allegations were well-founded. Redekop did not interview the grievor nor did he seek any
witnesses or other c~rroboratfng evidence. White the gdevor had made numero(~s serious
allegations, Redekop understood the complaint to be a far less serious ohe of "name-calling". He
testified that he was not informed by GIendenning even that the name-calling was of a racist nature.
Moreover, the evidence establishes that contrary to Glenc~enning's belief, Alexis in fact
acknowledged no wrong_-doing whatsoever. Redekop acknowledged during his testimony that what
50
occurred was accurately set out by him in his report dated December 6, 1989 (Exhibit 10 - Tab D
at p.3) which Is as follows:
When we questioned Mr. Alexis, he stated that the incident had been misinterpreted
by Mr. Chun and that what we were saying is not what had taken ptace at all and
that Mr. Chan was only trying to get him into trouble. Mr. Alexis was sorry if he
had caused anyone any embarrassment and would see to it that this sort of thing
did not happen again.
This makes it clear that Alexis, while regretting any embarrassment caused, in fact denied
any wrong-doing.
Even if it was true, as Glendenning had believed, that Nexis had acknowledged att of the
allegations made by the grtevor and had promised verbally not to repeat the conduct, the Board has
serious concerns about the empIoyer's apparent light treatment of the situation. Glendenning was
fully aware that the allegations were serious, including threats of physical harm and racial
harassment. He was also aware that on at least three previous occasions, when confronted with
allegations of harassment of co-workem, Alexis had appeared contrite and had promised not to
repeat the conduct. Glendenning knew that Alexis was not sincere on those occasions because
he continued his harassment. He admitted that it had became a pattern for Alexis to express regret
and make promises of good behaviour, whenever confronted by the employer. Given that
knowledge, Glendenning failed to give any satisfactory explanation as to why on this occasion a
similar acknowled'gement and verbal promise, (even if it had been offered) was acceptable as a
resolution to the problem.
From all of the circumstances, the Board can reach no other conclusion but that the
employer treated the complaint extremely tightly, not commensurate with the serious nature of the
allegations. The employer's apparent lack of an interest could only have given A[exis the Impression
that the employer did not consider his conduct to be that serious.
,51
There were also Several ffaws with the employer's process. Despl~e an explicit undertaking
by Glendenning to the grlevor, Glendenntng did not at any time report to the grievor as to what,
if anything, had been done with regard to his complaint. It is therefore understandable when the
grlevor testified that the employer's apparent lack of interest added to his distress. The evider~ce
establishes clearly that the grlevor raised a number of serious concerns relating to Alexis. it is
equally clear that despite Glendenning's admission that the grievor was in a state of distress when
he came to complain, the complaint was not investigated in any meaningful way. All Redekop did
was get Alexis' response to an allegation as to whether he engaged in "name-calling". The most
serious concerns, namely racial'harassment and threats of physical harm were not addressed in
anyway. Besides, contrary to Glendenning's evidence, Alexis denied any wrong-doing. Thus when
there was no action tal<en, it would have given ~JexJs the perception that the employer had
accepted his charge that the grievor %vas out to get him".
The Investigation Report
The most puzziing aspect of the investigation carded out by Ms. Lynn Thomson of the law
firm of Hicks, Modey, Hamilton, Stewart, Storle is its purpose. In his opening address union counsel
took the position that the Hicks law firm had an on-going relationship with the Ministry as its legal
advisors to protect the Ministry's interests in labour relations matters and that by retaining that firm
to do this investigation, there would at least be a perception that the tnvestigation would lack
Impartiality. Counsel suggested that that may account for some of the flaws in the investigation.
Mr. Ross Dunsmore, employer counsel in this proceeding, was partially involved in the Investigation
at least to the extent that he participated in interviewing the grievor along with Ms. Thomson on one
occasion. In his opening address he responded to union counsel's opening comments by
definitively stating that the Hicks investigation "was not an impartial investigation. It was done in
order to be able to advise the Ministry~.
52
However, dur. ing his testimony Mr, Glendenning stated that the Hicks investigation was a
neutral investigation. Union counsel put to him that M.r. Dunsmore had stated in opening that it was
not and asked '~Nhat do you say now?." Mr. Gtendenning replied "1 still understand it was an
impartial inquiry'. To say the least, It is dear that there was no common understanding between
the employer and the investigator as to whether the purpose of the investigation was to objectively
ascertain the facts, or to advise the employer as to how its interests may be protected from any
consequences that may ar[se out of the grievor's allegations, in the circumstances, it is not clear
to the Board even at this point as to what the true nature of the investigation was.
· ' In any event, following the grievor's complaint to the Deputy minister, the employer
appointed Ms. Carol Smith to meet with the grievor to obtain details of his complaint. Smith's notes
filed In evidence records that the allegations raised by the grievor included the foltowing:
- that Alexis frequently called him "sJantly eyed Eastwood' and "slimy wimp" and that NodiiJo
calls him "Rickshaw'.
- that Nodillo told the grievor and other staff that he would "never hire a black person
because they are lazy" but that "Chinese are OK because as long as you give them rice, the
gookers will do anything."
- The grlevor named three other visible minorities who were and are being harassed and
stated that two of them will not say anything because they are scared and witi retire soon, but the
third would say something if approached.
- That Alexis imitates the Chinese accent of Henry Ko, a supervisor and says that Ko "talks
funny".
- That Aiexis mimics the grievor's limp as well as Mary Byrne's disability.
- That in spring 1989 Alexis said to Nodillo in front of other employees "these gookers from
Vietnam - lets croak them all" and that usually Nodillo either laughs or makes a similar comment.
53
- That Nodillo and Alexis believe in the superiority of three races Croatian, Hungarian and
German.
- The grievor informed that he was concerned about making a formal complaint and that
he feared for his own safety and that of his family.
The grlevor testified that he briefed Ms. Smith about "everything that went on in the mail-
Fairly rapidty, Ms. Thoms~ was appointed as investigator. In January 1990 the Mlnistry
received Ms. Thomson's report and recommendations.
The report Itsts the following as "allegations which remain and which must be addressed"
and goes on to make findings on each allegation.
A) Alexis makes comments which are not acceptable insofar as they
relate to other employees' handicaps, ethnic odgin, lifestyle
choices and other grounds considered discriminatory by Human
Rights legislation. This creates a harassing environment which
Chart, among others, has suffered from. Alexis also seeks to
intimidate some of the employees with his size, specifically, Alexis
has threatened to fnjure Chart,
B) Nodillo makes similar comments.
C) Nodillo treats Chan in a manner which is different from that in
which he treats other employees.
i) Alexis is permitted to pick on him
ii) Chart receives discipline from NodJ]lo while other-employees do
not.
D) Nodillo manipulates his staff composition by providing answers to
interview questions before the interview is held.
With regard to allegation A, the report observes that it was "the most straight-forward". It
is observed that "Alexis was identified by almost all the employees in the unit, including Nodillo
54
himself, as a troublemaker who makes comments about the employees, which are insulting and
discriminatory and frequently vulgar." tt is stated that` "It fs possible that Alexis may have threatened
Chart in the elevator at some point after Chan had complained to Nodillo and Redekop and Alexis
had been reprimanded. In this matter Chan was credible.'
The report concludes that Alexis did not target any one group, but "would appear to find
fauit with all individuals who are not similar to him in appearance and thinking", and that several
employees Identified Alexis "as one of the people who regularly spoke on this issue, that he would
make anti-semitic comments in the context of discussions concerning World War I1". It is observed
thatthe majority of employees stated that Alexis' absence from the workplace (due to a suspension
with pay dt~rlng the investigation), "had provided the ftrst relaxation they had experienced since he
arrived".
The report notes that Alexis denied that he made "any comments about race, handicap,
sexual preference or any other discriminatory comments", and suggested that the employees were
picking on him due to jealousy "because of his appearance, and more important[y, because of hfs
sexual conquests, particularly in light of the fact that the other employees were not even dating".
The report however, goes on to conclude that "this explanation, and the manner in which it was
presented, lacked credibility".
The report further concludes that "the seriousness of his offensive b'ehaviour and the
possible employment consequences of continuing that behaviour were never stressed sufficiently
for Alexis to appreciate that his job was in jeopardy".
With regard to allegation B, the report observes that the grievor "backed-off" from the racism
allegations against Nodillo. It is stated that "perhaps most significant is Chan's backing off from the
55
racist issue and his present insistence that Nodillo treats him differently because he has ceased to
buy him drinks". Then the report finds as follows:
Chart is however, credible when he states that he perceives Nodil[o to be
a fac[st. Nodiifo's participation in some of the comments in the mail room and his
acquiescence with respect to others has created, for Chan, a perception that
Nodillo shares in these views. This is not an unreasonable perception. Even if
Nodiilo has not uttered a single racist comment, and has not acted in an objectively
racist manner in his employment decisions, his lack of control of Alexis and other
employees, perhaps even Chan on occasion, has led Chart to perceive him to be
a racist.
With respect to anti-semitic comments, the majority of employees attributed
such comments to Nodillo in varying degrees of virulence.
In conclusion, the report states with regard to allegation B as follows:
It is likely that Nodilto knew the extent of the comments being made and
their nature, both as a result of comments he made dudng the Interviews and also
as a result of their physieal work environment which is not sound proofed. It is
probable that he par~icipated in some of the comments. The clear impression the
employees received was that he, at very least, condoned them.
Allegations A and B are the most relevant for purposes of this proceeding. The union made
it known at the outset that the differential treatment complaint the grievor had made will not be relied
i!~ on in these grievances. Allegation D regarding Nodillo providing answers to iob fnterview questions
in advance came to ~tght during the investigation, and is not one re~ied on by the union in support
of the grievances.
With regard to anti-semitic or pro-Nazi comments, the repc)rt at p. 8 finds:
_it would aooear that anti-semitic or pro-Nazi comments were and are made in the
workplace. The comments would appear to pre-date the arrival of Alexis inasmuch
as several tong service employees attribute such comment,~ to Nod[Ilo prior to this
time. The soume of the earlier comments was identified by the Complainant and
others, as well as by Nodilio, as a now retired employee who apparently also ·
prepared and distributed his own literature dealing with such issues. The
perception which many employees clearly have is that Nodtllo has aligned himself
with these sentiments; what has been definitely established is that he does nothinc~
to prevent the cqmments from being made and that this has contributed to this
pemeption.
(Emphasis added)
56
In Section V, the investigation Report made the following recommendations:
Section. V ....
RECOMMENDATIONS
1, The Ministry must identEy its "independent" complaint procedure for dealing
with alleged violations of human rights policy.
2. The Ministry must educate its employees in the unit concerning both the
Ministry policy and the law on harassing conduct and comment and its Impropriety
in the workplace. Specific examples should be discussed and an avenue for
external complaint should be identified. The degree of penalties possible for
misconduct should also be reviewed.
If possible, the union representing these empioyees should, in its own
capacity, be Invited to participate.
3. Similar po[icy communication should be given to ail Ministry employees.
4. a) Mr. Alexis has been recently disciplined for his conduct. He only
received a written warning. Mr. Nodiilo was apparently aware of previous
misconduct but chose either to Ignore the conduct or onJy to reprimand Mr. Nexis
orally.
b) Mr. Nexis should also be personally counselled in a non-disciplinary
manner that his conduct has been inappropriate and if continued wilt generate
more and more serious discipline up to and including discharge. It is obvious that
Mr. Alexis must curb his tongue and be more sensitive to others perceptions and
feelings in the workplace. He is' not entitled to impose his iil will upo~ other
employees.
c) Mr. Nexis should also be counsefted that if he has complaints about
treatmen~ he should pursue the Mlnistry's complaint mechanism and not self-help.
d) Mr. Nexis should be returned to his previous position.
5. a) Mr. Chun should be reprimanded for making malicious complaints of a
serious human rights nature since many of his allegations are unfounded. It is
improper for an employee to act in this fashion.
b) Mr, Chun should be counselled to complain promptly Jf there are further
problems fo[lowing the Mlnistry's complaint procedure,
c) After discussion with the Union and consideration of the collective
agreement and appropriate policies, Mr, Chan's penm~rmnt position should be
declared vacant and he should be obliged to compete for it without the benefit of
special treatment.
57
d) Mr. Ch, an should be reinstated to his former location subject ~o 5 c} and
he should be instructed to make a responsible effort to "get along" with ail
employees including Mr. Alexis.
5. Mr. Alexis and Mr. Chan should be required to meet in the presence of a
Ministry representath/e and be specifically counselled respecting human rights
matters, the duty to complain in the proper fashion and their responsibility to "get
along" in the workplace.
6. a) Mr. Nodillo should be demoted for disciplinary reasons to a junior
management position in another area. This demotion should be for two items: 1)
failure to act in a fashion which conveys to employees the repugnance which the
Ministry has for conduct contrary to the principles of the Human Rights Code and;
2) for violation of the Ministry's interests in providing to an employee test questions
in advance. This suspension should be of a fixed term of between six months and
one year, at the end of which time senior managements shall assess Mr. Nodillo's
pedormance in order to determine if he has improved sufficiently to be returned to
the level of management previously held.
b) Mr. Nodillo should also be counselled respecting his duties as a
manager in the human rights area and generally with respect to the use of
progressive discipline tn the.workplace and the need for ama. nager to be able to
set himsetf apart from employees as required.
7. Senior management responsible for this area should be required to be
more invoived in assessing performance and esprit de corps so they are in a better
position to be aware of activities.
Following the issuance of the investigation report, on January 22, 1990, the employer met
individually with Alexis and the grievor. Each was informed that tbs investigation had resulted in a
conclusion that the grievor's allegations were unsubstantiated, and that both Alexis and the grievor
would be returned to their former positions in the mail-room. The grlevor while advised of this
result, was not provided a copy of the report nor informed of the existence of a formal report. The
grievor received nothing in writing from the empfoyer as to what the findings of the investigation
'were or the employer's intended plan of action, if any.
When the employer (Mr. Glendenning and Mr. Benanati) met With the grievor, they had a
written plan of action prepared, listing the matters to be dealt with at the meeting. Based on this
document and the other evidence before us, including the finding in the report itself that the
58
grievor's allegations against Nodillo were "malicious", we find that the grievor was admonished
for having made malicious allegations against Nodil[o, While the gdevor was informed that Nodillo
had been "removed to another posi~ior~", he understood.that his allegations against Nodlllo were not
only found to be unsubstantiated, but that the employer had concluded that the allegations were
malicious.
Post-Investigation Report
Following the report the grievor as well as Alexis were returned to their mail-room jobs. The
employer however, offered the grievor an opportunity to transfer out of the mall-room to the
Independent Learning Centre. The grievor declined that offer, it is clear that the transfer offered
would have been a demotion for the grievor to the extent that the Clerk Supply job offered had a
pay rate a few cents an hour less than what his mail room position paid. Mr. Glendenning testified
that at a later meeting the grlevor expressed his concerns as to why he as the victim of harassment
should be the one to be demoted and not Nexis.
Nodillo was removed from the mail-room in the basement and placed in another
management position (which was a levef lower) on the 7th floor. Mr. Redekop took over Nodillo's
supervisory duties in the mail-room on an interim basis. It was dur[.ng this perlod that the assault
of the grievor by Heinz occurred on March 30. It is common ground that Redekop became aware
of the assault almost immediately.
While Glendenning testified that he instructed Redekop to investigate the alleged assault,
Redekop's evidence was that Glendenning merely instructed him to take Heinz off the road and give
him the rest of the day off. Redekop did not In any way raise the alleged assault with Heinz.
59
WithTegard to the alleged assault of the grievor by Alexis on June 21 st, the evidence is that
since Alexis was on vacation at the time the employe, r made no attempt to contact Alexis until his
return 4 days later. When Alexis denied the alleged assault, the employer considered the a([egation
unfounded, because .it was the grievor'~s word against Alexis' and there were no witnesses to
corroborate the alleged assault. However, the employer decided to transfer Alexis to the Distribution
Centre.
Subsequent tO this the grievor aJJeged that the Distribution Centre was on his run, and that
he was threatened by Nexis on two occasions. Following that complaint, the Distribution Centre
was taken off the grievor's run.
THE DECISION
The Health and Safety grievance
There can be no doubt that for an employee employed as a driver in the Ontario Public
Service, it is an undue and unnecessary risk to be subjected to harassment, threats and physical
assaults. The issue is whether, as required by article 18.1, the employer "continued to make
reasonable provisions for the safety and health" of the grievor during the hours of his employment.
The Board is satisfied based on the evidence that the employer contravened article 18.1 as
a result of Noditlo's own participation in racist conduct and his fail[ire to take any action with regard
to the grlevor's complaints. As noted, Nodillo is a member of management. His knowledge is
tantamount to knowledge possessed by the empJoyer. There can be little doubt that hls
participation in verbal abuse'of various racial groups including the Chinese, woutd have encouraged
his sub-ordinates to do likewise. It would have contributed to a great extent in creating an
environment tn the workplace where racial harassment was seen as an acceptable norm. The
60
employer is vicariously liable for the verbal racial harassment the grievor suffered at the hands of
Nodlllo. This Is so regardless of whether Nodflto's superiors were in fact aware of his offensive
conduct.~· Se~, Re C.U.P.E..and O.P.E.I.U. LOCAL 491, (1982) 4 L.A.C. (3d) 385 (~jp.~.).
The Board also finds that the employer also failed to follow its own policy relating to
harassment, The policy (reproduced above) makes managers responsible "upon becoming aware
· that harassment is occurring, for dealing with it even though no formal complaint is forthcoming".
Clearly, Nodillo at least was aware that the grievor, among others, was being harassed by Alexis.
He not only failed to deal with it, but condoned and participated In that activity,
The policy makes Deputy Ministers "responsible for developing and implementing a process
· whereby all employee comptaints of personal harassment are responded to immediately and if found
warranted, remedied without delay". The process is required to meet the following minimum
requirements that (1) "all complaints are to be fully and properly Investigated' and (2) that
'responsibility for conducting investigations shall be delegated to an appropriate executive who may
in turn appoint one or more officers to carry out investigations".
There is no evidence that in this Ministry there· was any one executive who had been
delegated the responsibility for investigations, f! was apparent throughout this heating that different
members of management were dealing with complaints raised by the grievor, one unaware of what
.allegations had been raised with the other members of management. There simply was no process
or system for dealing with harassment complaints. Thus, not surprisingly, every time a complaint
was received it was seen as an isolated altercation between [wo employees rather than an ongoing
pattern of harassment. The 'Board is satisfied that as a result, the grievor was seen as an over-
sensitive complainer who was blowing OL~ of proportion, norma~ altercations among employees.
That explains the rather casual treatment management gave to his complaints.
The problems were further exacerbated as a result of the rather casual and Informal manner
in which complaints were dealt with. investigations were initiated only through casual conversation.
As reviewed earlier, as a result no investigation took ptace at all. Regarding the complaint to
Gtendennlng made by the griever in May 1989, Glendennlng thought he had appointed Redekop
to Investigate all of the allegations raised, fi.hat was news to Redekop. He thought he was only to
ascertain from -Alexis if he admitted to "name-calling". Glendenning made no record of what
allegations the griever raised and what Redekop was directed to investigate. Redekop did not even
interview the complainant. He made no notes relating to his investigation. He reported back to
Glendenning verbaJiy. He knew that Alexis had not admitted to any of the wrong-doing, and felt that
that Was what he reported to Glendenning. However, Giendenning somehow understood that Alexis
had admitted the allegations. Glenclenntng was not able to tell the Board during testimony as to
what specific conduct he understood Alexis to have admitted.
The employer's own policy requires, Inter alia, that "all complaints are to be fulfy and
properly investigated". There is no evidence that the complaints made to Mr. Doris by the Grievor,
were ever investigated. Redekop's actions with regard to the complaint made to G[endenning can
hardly be described as an investigation. The employer's own harassment policy requires that the
ir~vestigating officer interview both the complainant and the alleged offender, This was not complied
with. It requires the investigator to interview any witnesses. Redekop made no attempt to find out
if there were any witnesses to any of the alleged misconduct. The policy requires the "documenting
of the situation accurately and comptetely". There was absolutely nothing in writing with regard to
the complaints made to either Glendenning or Doris. Also the policy requires that the parties
concerned be notified of any decisions arrived at as a Jesuit of the investigation. Glendenning did
not notify the grievor at ail. Nor did Doris ever get back to the gdevor.
62
The Board has no hesitation concluding based on the evidence that the employer failed to
deal with the compialnts raised by the grievor to a~y acceptable standard. Employer counsel
emphasized the fact that Alexis had been investigated and given four verba~ warnings and a written
warning. However, the Board cannot place any weight on the so-caJ~ed "verbal warnings" at
Discipline is a penalty imposed In response to a finding that an employee had engaged in some
culpable or blameworthy conduct. The purpose of discipline is corrective. Therefore, the employee
must be made aware what he has been found guilty of, so that he would know not to repeat that.
The employer's own evidence is that in the instances of the so-cal~ed_verbai warnings, Alexis did
not admit to the alleged wrong-doing. The employer considered the allegations to be
unsubstantiated because in each case there were no witnesses. The Board cennot comprehend
how the employer can claim that It imposed discipline on Alexis, when at the same time it states that
it did not make any finding that the Alexis had committed any o~ the alleged acts. The evidence is
that nothing was placed on Alexis' file either. In alt of the circumstances, while the employer may
have counselled Alexis generally about good behaviour towards co-workers, Alexis would have felt
that he was exonerated from all allegations, because the employer concluded that the allegations
were unsubstantiated.
The written reprimand issued to Alexis on December 1, 1989 was a result of a complaint
from Douglas Clare that Alexis had harassed him in the lunch room by making rude comments
about what Clare ate and how he ate. That had nothing to do with the complaints raised by the
grievor, the most.serious of which were the racial harassment and the threats of physical harm.
Even assuming that Glendenning was correct in his understanding that Alexis had admitted
to all of the allegations raised by the grievor, the Board fails to understand how he could accept a
mere promise by Alexis not to repeat the conduct as a satisfactory resolution to these serious
allegations when it is the employer's own testimony that in the past Alexis had exhibited a pattern
63
of being contrite when confronted. However, he did not change his conduct. Given that hlstory,
the employer knew or should have known that mere promises by Alexis could not be relied upon
as sincere. T_.hat [sa clear illustration of the employer's failure to accept the serious nature of the
allegations made, particularly racial harassment.
The Board is satisfied that the manner in which the employer treated the grievor's
complaints resulted in the continuation of Alexis' behaviour towards the grlevor. Had the employer
treated the complaints seriously and made proper ~nvestigations, the grievor wou~d not have had.
to face the continuing harassment at the hands of Nodillo and Alexis.
The Board now turns to the investigation conducted by Ms. Thomson. By the time this
Investigation started, there was a history of complaints of harassment against Nexis by the grievor
as well as a number of other employees. In addition, the grievor had made complaints to
Glendenning at)out Alexis. The gdevor and Tivy. had brought to the attention of the Asst. Deputy
Minister the acquiescence and tacit approval by Nodillo-of Alexis' harassing conduct. They also
informed the Asst. Deputy Minister about Nodillo's own participation in racist comments, including
his propagation of anti-semitic views. However, none of this was documented. Mr. GlendennJng
acknowledged that the'employer had no system or practice of recording any Incidents of
harassment and that knowtedcje was passed on only through word of mouth. To say the least, this
is a most unsatisfactory state of affairs. Besides, it Js contrary to the employer's own harassment
policy. Given the absence of documentation, the only two persons who would have had a fair
knowledge about the history of harassment in the mail room were Gtendenning and Redekop.
Therefore, it [s most surprising that the investigator did not obtain from either Glendenning or
Redekop any understanding of that history. Glendenning testified that he was not interviewed by
Ms. Thomson at all about the allegations or the history of the problems in the mai[ room. His only
discussion was with Mr. Ross Dunsmore, who was not the primary investigator. That was a brief
64
discussion of about half an hour and not about the substance of the grievor's complaints. Mr.
Redekop testified that at his only interview with Ms..Thomson, she only questioned him about the
organization structure of the Branch. He also Was not questioned about the history of the problems
involving Alexis or Nodillo.
During the investtgat[on, the grievor as well as Alexis were moved out of the mail-room. The
grievor was transferred to another location, while Alexis was suspended with pay. Glendennlng
testified that it was the employer's policy to remove the complainant as welt as the alleged harasser
from the workplace during the Investigation, in order to avoid the possibility that their presence may
hinder or influence the investigation. However, despite the fact that serious allegations had been
raised against Nodltio, he remained ~n the mail room during the course of the investigation. The
employer provided no satisfactory explanation for that. in our view, because Nod[llo was a member
of management with authority over the mail room employees, his presence had a much greater
likelihood of interfering with the investigation. Emproyees would be retuctant to speak cand~dty
about misconduct by their supervisor, when the supervisor is present in the workplace.
indeed, the manner in which the investigation interviews were conducted made the situation
worse. The evidence is that many of the emptoyee interviews were conducted in the room next to
Nodillo's office. Even the employer witnesses conceded that sinc~ only a thin particle board wall
separated the two offices, conversations going on in one could be overheard in the other. 'In fact
Douglas Clare testified that when he was being intel'viewed by Ms. Thomson he was scared because
he knew that Nodtllo was in his office next door.
Furthermore, Ms. Smith gave an assurance to the grievor at the time she started her fact-
finding that the Ministry would protect his right to privacy. She interviewed the grievor on three
separate dates and prepared written notes of the three interviews. During these interviews, the
65
grtevor provided to Ms. Smith names of potential witness who may be able to corroborate his
allegations. There is absolutely no doubt that Nodi[Io was provided access to these documents
· within days. Nodil[o wrote a memorandum responding to the allegations raised by the grievor. The
grlevor was not even made aware that Nodlllo had access to his statements and had provided
responses. Mr. Glendenning agreed that NodiIIo should not have had that access, but could not
explatn how and why he was given access to Ms, Smith's notes.
The employer took the position that once the investigation commenced, the grievor's focus
shifted from racial harassment to one of differential treatment and further that the grievor backed
off from the racism Issues. It appeared to the Board that this is the employer's explanation for the
absence in the report of. any findings on racial harassment. We do not accept that, It is clear that
the grtevor had n'~de allegations of racial harassment against Alexis and Nodillo, with Glendennlng,
Doris, and Shapiro, Subsequently he made the same allegations when Carol Smith interviewed him.
Her own notes document these. The {~r~evor den~ that he backed off from the racism issues at
any polnt. No one who was directly involved in the investigation testified. Therefore we only have
the hearsay evidence from employer witnesses that they understood from Ms. Thomson that the
grievor had backed off from the racism allegations. We have no evidence at all as to what the
grlevor did to indicate such a backing-off. If there was such evidence, the only person who would
have been able to testify directly to that was Ms. Thomson. She did not test]fy.
Against this we have the direct testimony of the grievor, who denied ever backing off the
racism allegations. Moreover, a review of the Investigation Report itself confirms that the racism
issues were never withdrawn. The report notes four "allegations which remain and which must be
addressed". (See su.s.p.p~ p. 53). Allegations A & B clearly encompass allegations that Alexis and
Nodillo make unacceptable comments based, inter alia, on ethnic origin. When the report itself sets
66
that out as an allegation which remains and which must be addressed, it ts difficult to understand
how the employer can suggest that the gflevor had backed-off tha{ allegation.
In any event, the employer's position completely misinterprets the true nature of its
obligations under the collective agreement. The employer's obtigations Under neither Article A. 1
nor Article 18.1 are conditional upon the filing of a. specific complaint by an employee. The
employer's obligation to tal~e reasonable steps to ensure a safe and discrimination free work-
environment [s an on-going one, which exists quite independent of specific employee complaints.
The employer, through several members of management, was aware of the allegations of racial
harassment by Alexis and Nodilto. The allegations were repeated to Ms. Smith. Even if the grievor
.._: had shifted the focus of his own complaint away from the racism issue, the employer had an
obligation to Investigate those serious allegations. Indeed, the emp. Ioyer's own harassment policy
specifically states that 'Managers are responsible, upon becoming aware that harassment is
occurring, for dealing with it even though no formal complaint is forthcoming" and recognizes that
'q'he Human Rights Code provides that a person who has authority to prevent or discourage
harassment may be held responsible for failing to do so."
What is even more puzzling is that, despite the employer's explanation that the focus of the
grievor's complaint changed, the investigation report tn fact goes on to make findings of racist
conduct on the part of both Alexis and Noditto. Mr. Glendenning conceded under cross-
examination that allegations A & B including the allegations 'of racist comments have been
substantiated by the findings in the' report. The Board has reviewed that evidence earlier in this
award. In the circumstances, the Board is at a loss to understand how the employer concluded and
informed Alexis and the grievor that the allegations were found to be unsubstantiated. Even more
troubling is the employer's assertion that the grievor's allegations of racism against Nodillo were
malicious. The only adverse Conclusions made against Nodillo concerned managerial deficiencies.
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The findings made against him about racist conduct were reft completely unaddressed. Therefore
not surprisingly, the discipline imposed (a temperary one tevel demotion in the management
hierarchy with red-circled pay) was relatively insignificant. Nothing was done to convey to Nodillo
that his racial harassment as wet1 as his failure to address racial harassment by employees under
him was an extremely Serious concern.
The Board further finds that the manner in which the employer communicated the results
of the investigation to the staff of the mall room trivialized the seriousness of the findings, The
Board is amazed that there was absolutefy no mention of racism, let alone a strong statement that
it had been determined that racism had been going on in the mai1 room and that it was not
tolerable. It appears that even in the face of clear evidence, the management simply was not willing
to accept th~ reality - that racism existed in their workplace. That Is the only explanation for the
management's light treatment of the situation. The employer informed the staff that the investigation
found the allegations to be unsubstantiated. That was not true. No mention was made of the raciai
harassment and specifically the racist name-calling, or of the anti-semitic behavlour which was found
to exist, instead, management informed the staff that they should put what has happened behind
them and try to get along, with no mention of racism or racist name calling whatsoever, instead
the staff was told that the use of nick-names would not be permissible. This deafly demonstrates
a failure or unwilllngness by the employer to recognize and meet head-on a seriol~s problem it knew
existed in the workplace.
The Board further finds that the manner in which the employer dealt with the Heinz assault
on the grievor on March 30, 1990 would have given the wrong message to other potentia[ bullies,
At the very least, Heinz should have been confronted about the assault and a disciplinary 'letter
placed on his file. That way,' had Heinz sought re-employment in the Ministry or requested a
reference, his misconduct would come to Jight. The message sent by the employer on the other
68
hand was that an employee who is on his last day o[ work can misbehave in any manner towards
co-workers with no fear of any adverse consequences.
The Board can draw no other conclusion about the June 2~, 1990 assault by Alexis on the
grlevor than that the emptoyer was wilfuily blind to the information it had. The grievor immediately
reported the assault to management. He was visibly in a state of distress at the ~ime. The employer
knew that the grievor left work to seek medical treatment, claiming a ringing in his ear. if the
employer had conducted a proper investigation, it would have received medical evidence that the
., grtevor was found to have a fluid in his ear and that the doctor had prescribed medication. Instead,
.. the employer relied solely on Alexis' denial as a basis for concluding that the grlevor's allegation of
an assault was unsubstantiated, Knowing as it did that Alexia had in the past harassed numerous
employees but had not acknowledged any wrong-doing, the denial should not have been a reason
for such a conclusion, without further investigation. When Glendenning was asked on what basis
the employer concIuded that the assault allegation was unsubstantiated, he said "We had no witness
and also we knew that Chart was going to me charges". We find both reasons to be groundless.
It has been a common feature in the evidence that this employer considers an allegation
'~'~'~ unsubstantiated unless there was a third party eye-witness, But that makes no sense. Offenders
are not in the habit usually of committing their offenses in front of eye-witnesses. The employer had
an obligation to carefully examine the circumstantial evidence in coming to a decision, This the
employer failed to do here. Also, whatever action the gfievor may or may not have taken through ·
the criminal justice system has no bearing on the employer's obligations under the collective
agreement. The fact that the grievor planned to file criminal charges did not relieve the emp[oyer
of its obligations.
Based on all of the evidence before it, the Board can come to no other conclusion but that
the employer failed to make reasonable provision for the grtevor's health and safety as required by
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article 18.1. One member of management, Nodillo, condoned and participated in the creation and
continuance of a work environment, where Neo-Nazi opinions of racial superiority, racist slurs and
name-ca]ting, harassment on the basis of physical disability, verbal and physical harassment and
assaults were common place. Nodilio ignored or treated as a joke complaints made. When
complaints were'made to higher authorities such as Glendenn[ng and Doris no investigation took
place with a view to addressing the problem. Perpetrators were treated so lightly that there was no
deterrent effect. Most strikingly, up to the time of the grievances, no one had been disciplined or
even verbally admonished for racist conduct, despite all of the complaints brought to the attention
of the employer. To the extent that any investigation took place, there was total confusion as to
who was investigating what. Even the basic requirements such as interviewing the complainant and
recording of findings were not complied with. For all intents and purposes, the employer's own
harassment policy was ignored.
The conditions that the grievor faced in the mail room from 1987 were contrary to the
employer's own policy and the Human Rights Code. A work environment where raciat slurs, threats
and asssaults are common-place is not a reasonable risk which an employee in the Ontario Public
Service should be expected to endure.
Based on the evidence we heard, we find that the situation in the mail room, particularly
when it comes to racism, was far more serious than characterized by the Hicks Investigation Report.
Nevertheless, the fact is that, the investigation report still made findings of racist conduct, physical
threats and bullying. Even based on those findings the employer could not have reasonably
concluded that the grievorls allegations were unsubstantiated. Since the employees did not have
access to the report itself, when they are simply advised that the allegations were found to be
unsubstantiated, in their mind Nod[llo and Nexis were exonerated of any wrong-doing. On the
contrary, it vilifies the grievor for having made unfounded allegations against a co-worker and a
70
supervisor. · The employer itself admonished the grievor and accused him of making malicious
allegations against Nodillo. That is absolutely unjustified in light of the Information provided by
numerous employees corroborating many of the allegations against Nodi[lo. The investigator herself
makes findings against Nodillo, which substantiates the allegations against Nod[ilo.
We conclude that the manner in which the employer conducted itself, intentionally or not,
encouraged Alexis and other like minded people like Heinz to intens~ their harassment of the
grievor subsequently. As a result, the grievor was exposed to more risk including the assaults by
Heinz and Alexis. By failing to take reasonable steps it had at its disposal to deter the perpetrators
and to make the work environment healthier and safer for employees including the grievor, the
employer contravened article 18.1. This hostile and unsafe work environment continued even after
the chief perpetrators Nod[ilo, Alexis and Heinz had left the mail room by July 1990. Even after that,
Alexis physically threatened the grievor on his visits to the Distribution Centre on duty. Thus, we
find that the contravention of Article 18.1 continued at least to that time.
The grieyance un.de[ Article A.!
The Board has already observed that the racist conduct on the part of Noditlo and Alexis
and the employer's failure to deal with that in an appropriate manner was contrary to the Human
Rights Cod~. Since Article A. 1 is in effect an incorporation of the prohibitions against discrimination
contained in the Code, had Article A. 1 been in effect throughout, there is no doubt that the
employer would have been in violation of the provision from at least 1987. However, it is common
ground that Articie A. 1 did not take effect until June 15, 1990. Therefore, in order to find a violation
of Article A. 1 the Board must find that a violation occurred subsequent to June 15, 1990. The most
serious incidents In that period were the assault of the grievor by Alexis on June 21, 1990 in the mail
room basement and the two occasions when Alexis threatened the grlevor with physical harm at
the Distribution Centre. There was no direct evidence that these incidents were racially motivated.
71
However, there was ampte evidence that historically Alexis had exhibited a pattern of verbal and
phystcal harassment, which in most cases Included reference to the grievor's ethnic origin and his
physical handicap. The employer had not in any manner conveyed to Alexis that such conduct was
not tolerable, indeed, no finding had ever been made by the employer that Alexis had at any time
engaged In such conduct. There ts no evidence, and there is no reason to believe in these
circumstances, that Alexis' pattern of conduct had changed tn any way. on the contrary, on
balance it is reasonable to conclude that the assault on June 21, 1990 and the two subsequent
threats were further manifestations of Alexis' racist attitude. This continuation of the grievor's
harassment could have been avoided if the employer had taken action when it became aware of
Alexis' racist attitude. By failing to do so, the poisoned work environment continued beyond June
t5, 1990 and resulted in violations of Article A. 1.
In summary, the Board concludes that the employer contravened Article 18.1. That
grievance therefore succeeds. The grievance filed under Article A. 1 is also upheld to the extent that
Article A. 1 was contravened subsequent to its coming into force.
The Board has already.observed that the environment in the mail room since 1987, the
racial name-calling and the propagation of racist views, would have been contrary to the Hu .m. an
Riclhts Code. The removal of Nodillo from the mail room in January 1991 and the transfer of Alexis
out of the mail room and the changing of the grievor's delivery route were positive steps. Combined
with the resignation of Heinz in March 1990, the grievor's personal circumstances at work should
be greatly improved as a result. However, the fact remains that up to the time of the filing of these
grievances, the employer had done little, if anything, to address the racist culture that had existed
in the mail room for years. The employer had not sent a clear and strong message to the
employees in the mail room that if they engage in racist conduct towards fellow-workers they would
be dealt with seriously. Therefore while the main protagonists in the racist conduct were no Ionizer
72
in the mail room, it is possible that the'culture that was established white they were there had not
been completely eradicated. The Board heard evidence that subsequent to the fillng of these
grievances, the employer had taken some positive steps to address the racism issue including
human rights training. The Board urges the employer to continue to take whatever action is
required to facll{tate a safe and discrimination free work environment. The Board also urges the
union to cooperate with the employer, should the employer ~eek input from the union in this regard.
The Board directs the parties to attempt to agree upon any remedial issues that arise out
of the Board's finding that the collective agreement was contravened, tn the event such agreement
is not reached, the Board remains seized with jurisdiction.
Dated this 12th day of June, t996 at Hamilton, Ontario
Vice-Chairperson ~7 -
Peter YJym ~
Member