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HomeMy WebLinkAbout1991-2552.Hoffman.93-11-25 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTAFIIO 180 DUNDAS STREET WEST, SUI'FE 2~O0, TORONT0, ONTARIO, MSG 1Z8 TELEPHONEIT~LLeRHONE· (416)326-1388 150, RUE DUNDAS OUEST, BUREAU 2100, TORONf'O (ONTARIO), MI5G fZ8 FAC$1[',41LE,'T~L~COPlE. {4 r6) 326-~.396 2552/91 ,IN THE M~TTER OP ~N ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAININ~ ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Hoffman) Grlevor - and - The'Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: O. Gray Vice-Chairperson T. Browe~-Bugden Member J. Campbell Member ~OR THE L, Yearw0od UNION Grievance officer Ontario Public Service Employees Union FOR THE J. Benedict EMPLOYER Manager, Staff Relations & Compensation Ministry of'Correctional Services HEARING July 9, 1992 October 14, 1992 January 21, 1993 AWARD The griever, Robert 'Hoffman, is a corrections officer at the Elgin-Middlesex Detention Centre ("the EMDC"). He grieves that he was unjustly disciplined in November 1991, .when the Superintendent of the EMDC suspended him without pay for 80 hours -- the equivalent of 10 eight hour days --~ for "harassment" of.other correctirns officers. The Employer's PoliCy On '1-Iarussment' At the time of the grievor's alleged misconduct, the employer's policy on personal harassment read,' in part, as followS:' PERSONAL HARASSMENT General ~ It is the policy of the Government of Ontario that every employee in the Ontario Public Service can expect to be afforded a work environment free of personal harassment, Authority Reference: The Ontario Human Rights Code, 1981 provides under the Sections shown that: 4.(2) Every person ~who is an employee has a fight to freedom from harassment in the workplace by the employer or agent o£ the employer or by another employee becauSe of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, 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 or agent of the employer or by another employee. (3) Every person has a right to be free from, (a) a sexual sohcitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or, (b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a pe.rson in a position to confer, grant or deny a benefit or advancement to the person. De£mitions: "t~mp]oyee" "Employee" in the context of this policy refers to management, other excluded, bargaining unit, contract and temporary staff. "Harassment" The Ontario Hflman Rights Code definition of harassment and its interpretation in A Guide to the Human Rights Code shall apply: Ontario Human Rights Code. 1981. definition: "Harassment means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcomef Interpretation from A Guide to the Human Rights Code, 1981: "Harassment is a course of ~omment or conduct consistin, g of words or actions that disparage or cause humiliation to a person in relation to one of the prohibited grounds." This policy had been in force for some time, and was well publicized. There is no suggestion that the griever was unaware of it. The Facts On August 7, 1991, the griever was having his meal in the staff lounge at the EMDC. Corrections officer At Willis and at least 8 other corrections officers were with him. During the meal, Mr. Hoffman expressed certain vi?ws about Employment Equity and the employer's approach to it. Mr. Willis' testimony before us was that Mr. Hoffman referred to the recent hiring of three persons described by Mr. Willis as "Natives -- Indians", 'and said that education standards had been lowered to accommodate the hiring of those three individuals, and that, to use Mr. Willis' words, "he kinda thought that white males were being discriminated against -- more or less reverse discrimination." Mr. Willis testified that he disagreed with Mr. Hoffman's' opinions. When the discussion started to get heated, Mr. Willis decided to leave the lounge. He said the entire conversation lasted 5 to 10 minutes before he left. During his examination-in-chief of Mr. Willis, the employer's representative sought several times to'have the grievor expand on his description of the opinions expressed by Mr. Hoffman on this occasion, but Mr. Willis added nothing to what we have already set out in the previous paragraph. He repeated that his views had differed from those of Mr. Hoffman, He testified that "I felt if he felt that way about visible minorities, what did he think about me.-- a black. What if three blacks had been hired?" Mr. Willis testified that he was upset afterwards. He thought he should sit down and discuss the matter with Mr. Hoffman: When he arrived at work the next day, though, he discovered that Mr. Hoffman was not scheduled to work that day~ Mr. Willis was not scheduled to be at work again for' 10 days, so he spoke to Lorne Smythe. Mr. Smythe is a fellow corrections officer and shop' steward. Mr. Willis asked Mr. Smythe to speak to Mr. Hoffman on his behalf to express his concern about what he had said the preVious day. Mr. Smythe agreed to do so. Mr. Willis apparently thought Mr. Smythe's intervention would prompfi Mr. Hoffman to come and speak to him.. It is Mr. Smythe's testimony, however, that he understood Mr. Willi~ would be approaching Mr. Hoffman when he returned to work after his scheduled days off. That is what Mr. SmYthe told Mr. Hoffman when he approached him on Mr. Willis' behalf. In the result, there was a period during which. Mr. Willis expected Mr. Hoffman to apprbach him, Mr. Hoffman expected Mr. Willis to approach him, and neither approached the other. Mr. Willis was upset by .the grievor's failure to.approach him, particularly since he and Mr. Hoffman were both former members .of the Canadian Armed Forces. Mr. Willis did not speak to Mr. Stay, the again until early October. He then asked Mr. Smythe if he had spoken to Mr. Hoffm~n. Mr. Smythe said he had. Mr. Willis asked what Mri Hoffman had said. ACcording to Mr. Willis, Mr. Smythe replied "Nothing. What could he say?" This prompted Mr. Willis to approach another union steward, Cindy Haynes. She told him that she had had what he described as a "run- in" with Mr. Hoffman. Mr. Willis says he also learned that corrections officers Shelly Logan and Susan Bragg were concerned about Mr. Hoffman's conduct as well. Mr. Willis decided to lodge a complaint with the Superintendent of the EMDC, because he thought someone should speak to Mr. Hoffman. As a result of a conversa- tion with a union official' about his intention, Mr. Willis told a Lieutenant that he would be seeking a meeting with the SuPerintendent. The Lieutenant then spoke to Deputy Superintendent Paul Downing. Mr. Downing was led to understand that Mr. Willis felt he had been the victim of racial slurs. The following day, October 9, 1991, Mr. Downing met with Mr. Willis and two shop stewards, corrections officers Cindy Haynes and Jas Sahota, concerning Mr. Willis' complaint. According to a report Mr.. Downing later prepared, Mr. Willis alleged that the grievor had made "terrible and insulting" comments about "Employment Equity and racial minorities." Mr. Downing identified for Mr. Willis the options he had with respect to pursuing the matter. Mr. Willis requested that the matter be investigated internally. Mr. Willis says that on October 9, 1991, Mr. Downing asked him if he wished to file a written report, and he replied "not at this time.'~ He says he did prepare a written report that night, however, and had it with him when he next met with Mr. Downing the following day. The report reads as follows: Sir: At approximately 16:30 hrs 07 Aug, 1991, I C/O 2 Willis was in the staff lounge having my regular evening meal break. The following.correctional officer [sic] were present C/O 2 Donna Smith, Gord Jardine, Jeff Hales and Bob Hoffman. Mr. Hoffman began to discuss his views on the provincial government hiring policies in relation to employment equity as well as visible minorities being hired at EMI)C. · It was in his opinion that employment· equity programs within the province were discriminating against white males in particular the hiring of visible minorities. Mr. Hoffman stated that the reqent [sic] hiring of the native indians, the standard of education etc was lowered in order to accomidate [sic] £hemJ ~ I stated to him that I disagreed with his negative beliefs and poor attitude in [sic] the [illegible] policies. I than [sic] left the staff lounge being very upset with Mr. Hoffman and his negative beliefs. I later approached the officers who where [sic] present, and asked them what they though Is/c] of Mr. Hoffman's Ii]legible] views on the employment equity programs and hiring of visible minorit, ies also about white males being discriminated against in the workplace. They all disagreed with Mr. Hoffman's views. The following day 08 Aug. 1991 I approached a union steward C/O 2 Don [sie] Stay, he and asked him to speak to g@. Hoffman on my behalf informing him that · ' his vies and opinions stated in the staff lounge during the evening meal break of, 07 Aug. 91 was [sic] questionable and on [sic] called for. Mr. Willis testified that Mr. Downing .never did ask him for a written report. Mr.' Willis gave his written report to the employer a few days before the ~hearing in this matter began. On October 10, 199 I, Mr. Downing interviewed Mr. Willis with respect to the particulars of his complaint. During this interview, Mr. Wiiiis made some allegations about what had occUrred on.August 7, 199 I. He acknowledged that the grievor had not directed any racial slurs o~ inappropriate comments at him, but said that he was insatted by Mr. Hoffman's attitude toward hiring practices and visible minorities. According to Mr. Downing's notes of the interview, Mr. Willis attributed a number of comments to Mr. Hoffman, comments to which he made no reference in his testimony before us and which do not appear in the written report which'Mr. Willis says he had prepared and referred to at the tim~. During this first interview, Mr. Willis was asked whether he was aware of any "similar incident" involving other staff. Mr. Willis said he understood that correctiorm officers Cindy Haynes, Susan Bragg and Shelly Logan had experienced inappropriate comments by Mr. Hoffman. .. On Friday, October 11, 1991, Mr. Downing spoke by telephone ~to Mr. Hoffman, who was about to leave town for the weekend. He told the grievor that he wished to meet with him to discuss "a serious allegation has been made concerning his conduct and behaviour in the workplace." The earliest they could meet was the following Tuesday,' October 15, 1991. Mr. Hoffman asked what the allegation was. Mr. Downing refused to discuss it on the telephone. On the following Monday, October 14, 1991, Mr. Hoffman spoke to Doug Evetts, the local union President, about his pending meeting with Mr. Downing. Mr. Evetts told Mr. Hoffman that he understood there had been complaints about his behaviour by officers Willis and Haynes. Mr. Hoffman then sought out officers Willis and Haynes, and apologized to them both. Mr. Evetts accompanied Mr. Hoffman to his meeting with Mr. Downing on October 15, I991. They told Mr. Downing that Mr. Hoffman had apologized to Mr. Willis and Ms. Haynes. They said Mr. Hoffman had not been aware of the impact of what he had regarded as normal every day lunch discussion. Mr. Downing said he would consult with Ms. Haynes and Mr. Willis to see if they had any further comment . on their allegations or his apology. He added that even if'they both accePted the grievor's apology, he Would still have to determine whether disciplinary or corrective action was necessary to ensure that the Workplace is free from harassment and discrimination. Mr. Downing met with Ms. Haynes later that day. She told him that she thought Mr. Hoffman's apology had been sincere, that she felt Mr. Hoffman realized the effect of the comments about which she had complained, and would probably not demonstrate such behaviour again. Mr. Downing met with Mr. Willis on October 17, I99I. Mr. WiIIis told Mr. Downing that he thought the grievor's apology to him was sincere, but added that the grievor had known how he felt two months earlier and had not attempted to resolve the issue then. According to Mr. Downing's notes of this second interview, Mr. Willis then alleged that there were others who were afraid to come forward because they feared reprisal by Mr. Hoffman. He mentioned Susan Bragg and Shelly Logan in that connection. Mr. Downing noted that Mr. Willis said "! feel at this point it doesn't matter what I feel, there's a policy in place so let the chips fall. This man has done some pretty bad things to people." Mr. Downing decided tospeak to officers Bragg and Logan. During Mr. Downing's interview of her on October 18, 1991, corrections officer Susan Bragg stated that during the two years she had worked with the grievor, he had made a number of derogatory comments to heror in her presence about the ability of women to work in the corrections system. She said she found these comments increasingly disturbing and personal, and wanted them stopped. The following day she prepared and provided the folloWing written statement: In reference tO our meeting on Oct. 18, 1991, .I have included a list of remarks made by Officer Hoffman which have offended me. 1) 'White males are alway_~ more qualified that anyone else. 2) Women can't make it on their own. They need assistance, i.e. ff a woman is promoted, it is because a position was created for her to fill a quota and not because she is qualified or deserves it. 3) Female officers should only work with female inmates. 4) ' Women would not be around if there was a serious disturbance in the institution, i.e. riot. 5) Women lower the standards in the workplace. 6) Officer Hoffman-stated that ff he was an employer, he would not want to be forced to hire certain people. He believes that he should be able to hire the people he wants. · 7) I was told that I would have to "take my lumps." Ms. Bragg testified· before Us that she and the grievor had had a number of conversations about employment equity during the'two years she had worked with him. She said he had made comments like 'those listed in her report during earlier discussions, but she had not felt offended by them before two particular discussions during which she perceived the comments as a personal attack. The first of those two discussions occurred some time prior to August 1991, in the foyer. She and the grievor were discussing employment equity. The discussion came to an end when Officer Bragg had to go to work..As she left, the grievor made the remark to her about having to take her lumps. The second occasion was in August 1991, when the grievor made most of the listed remarks during a lunch break discussion in the staff lounge. Officer Bragg was the only female officer present at the time, and was sitting at the same table as the grievor. There were other male officers present from whom the griev0r seemed to be seeking support for his views. On both of these occasions she felt she was being put on the defensive, made to defend the fact that she was working there. During Mr. Downing's interview of her on October 21, 1991, corrections officer Shelly Logan advised Mr. Downing of an incident in which the grievor made her Uncomfortable by questioning her about sexual harassment. She also mentioned a conversation she had overheard between the grievor and another officer. After the interview, she filed this report: I was south hall officer when CO 2 Bob Hoffman approached me stating he'd heard rumours about details of my previous employment. 'He said he wanted to know ff they were true so that he wouldn't spread any false rumours. He also relayed to me that he and some other officers were uncomfortable working with me due to the rumours thefd heard about my last job. He asked me what sexual harassment is and expressed concern that I might report him for telling a joke. He was very sarcastic. I told Bob that ffhe wanted to know about sexual harassment, he should read the policy. I also said that ff he was concerned for himself, then he probably had reason to be concerned. I believe Bob was making a statement with this confrontation. I believe he was telling me that he and other officers did not'believe ~exual harassment was real, and that someone who has been harassed probably just misunderstood another's intentions. ' ,, .This conversation made me very angry and frustrated 'me as well. I was sexually harassed and discriminated against daily for 14 months and I don't appreciate anyone making light [portion of report missing] The other incident you asked me to report involved a conversation I overheard while I walked through the foyer. Mike Close was telling Bob Hoffman that he (Mike) did not get the full time job on the competition because a white male can't get a job today. He felt that ffhe were black or female, he would get a full time position. Bob was agreeing with Mike's opinions, saying things hke "I know." We do not understand there to be any suggestion that the alleged conversation between the grievor and officer Close formed any part of the employer's basis for disciplining the grievor. Accordingiy, we will make no reference to the brief testimony that officer Log.an and the grievor gave about it. Officer Logan testified that she had left previous employment with another employer because of sexual harassment. She had described that harassment in an article which appeared in the November 1990 issue of a labour magazine called "Our Times." She did not speak of it with fellow employees when she first began working at EMDC. She began doing so some time later, and employe.es became aware of it when someone brought a copy of her article to work. Officer Logan's testimony before us about the grievots questioning her about sexual harassment confirmed the contents of~her report to Mr. Downing. She added that the incident took place in August 1991. That would have been about 5 months after she started working at the EMDC. She was not sure whether this was before or after other employees learned of her article. She said that the grievor's tone during the incident was sarcastic, and it was apparent to her that his purpose .was to make a statement to her rather than receive information from, her. ~ Neither of the female witnesses suggested that she had feared reprisal, by the grievor for making any report against him. Returning to the course of the investigation, on October 24, 199 I, Mr. Downing asked Mr. 'Hoffman to meet with him on October 28th to discuss further allegations. Mr. Evetts accompanied Mr. Hoffman to that meeting. Mr. Downing told them that the meeting was not a disciplinary, meeting, but was to advise the grievor of the complaints by officers ]~ragg and Logan. After Mr. Downing told him the substance of the allegations, Mr. Hoffman said he did not want to comment on the allegations, adding that there were "always two sides to a story." Mr. Downing did not ask the grievor for a report on the incidents in question. Mr. Downing prepared a report to the Superintendent of the EMDC on his meetings with the complainants and the' grievor, He attached written statements which officers Haynes, Logan and Bragg had provided. Some time later, the grievor was summoned to a meeting on November 1, 1991 with the Superintendent. The grievor attended with Mr. Evetts. At the conclusion of the meeting, the Superintendent orally imposed a' 10 day suspension. He later wrote the grievor this letter: Dear Mr. Hoffman: Re: Allegations of Harassment As you are aware, a h.earing was held in my office at 09:00 hours on Friday, 1 November, 1991, to look into the allegation that "While you were employed as a correctional officer at the Elgin-M~.ddlesex Detention Centre, you.engaged in a course of vexatious comments and/or conduct that you knew or ought reasonably to have known were unwelcome." Present during the hearing were yourself, your representative, Mr. Doug Evetts, Mr. Paul Downing, Senior Assistant Superintendent (Corrections) and myself. After hearing the evidence and providing yourself and Mr. Evetts an opportunity to reply to the allegations, I offered you the opportunity to hear from the complainants directly and you declined. Upon careful consideration of the testimony, I advised you that I was satisfied there was truth and substance to the complaints by Mr. Willis, Ms. S. Bragg and Ms. S. Logan. For reasons stated to you, I advised that I gave you the benefit of the doubt concerning the complaint of Ms. C. Haynes. In determining a suitable penalty, I took into consideration the fact that you had apologized orally and in writing to both Mr. Willis and Ms. Haynes. Also, that you have an excellent record of employment as a correctional officer and that, in my opinion, you were contrite and genuinely sorry for your actions in these incidents. With these factors in mind, I advised you that the penalty to be imposed would be your removal from duty, without pay, for a period of ten (10) days commencing November 2, I991. After you had left my office; I realized that you are on a twelve (I2) hour schedule. As it was not'my intention to penalize you 120 hours, I contacted your representa- tive, Mr. t~vetts, to advise him that I had intended that you be removed from duty for a totaI of eighty (80) hours and I now correct the record in that regard. Please be advised that your return to duty is scheduled for November 15, 1991, at 19:00 hours. The Superintendent testified that he disciplined the grievor because he found that the comments the grievor made to officers Willis, Bragg and Logan violated the Ministry's policy about personal harassment. With respect to the penalty imposed, the Superintendent noted that he had weighed in the grievor's favour his "excellent" record during seven years' employment .' with the Ministry as a corrections officer. He weighed against him.the fact that he was intelligent, "worldly", had taken a Human Rights course offered by the Ministry, and ought to have known better. He added that the allegations involved two females and one black officer "over a long period of time." During cross-examination, the union's representative drew the Superintendent's attention to the report of Cindy Haynes which had been before him when he disciplined the grievor. The report referred to two incidents. One was the incident on which the Superintendent gave the grievor "the benefit of the doubt." The other involved a conversation in the smoke yard between the Superintendent's female secretary and a female file clerk. They were discussing Human Rights training. Officer Haynes reported hearing the Superintendent's secretary say that "The only thing I learned was how to be a nicer bigot", to which the file clerk responded "Yea, instead of saying fucking niggers, now you say just rdggers.' Ms. Haynes' report stated that she wanted this to be made "a matter of record" but was not making it par~ of her complaint because she had received an apology from the file clerk'. The union's representative asked the Superintendent why the conduct Of his secretary and the file' clerk had not been made the subject of disciplinary action. The Super/ntendent said he had asked his secretary whether the report was accurate. When she acknowledged that it was, he "suggested that she apologize." He said he did not pursue the matter because Ms. Haynes had received an apology from the file clerk and did not want to pursue the matter. The union's representative then asked the Supe~rintendent whether he was satisfied with the grievor's apologies to Ms. Haynes and Mr. Willis. The Superintend- ent replied that this was irrelevant because he understood that the grievor's inappropriate behaviour had continued after the apologies were delivered and, he added, this was the reason Mr. Willis had wanted the matter pursued. He continued to insist that inappropriate behaviour by the grievor had continued after the apologies even after it was pointed out to him that the apoiogies had been delivered on October 14, 1991. Nothing in the evidence'before us supports the Superintendent's belief that the grievor had engaged in any inappropriate behaviour after he apologized to officers Willis and Haynes, nor did anything in any of the reports the Superintendent had before him at the time. · The grievor testified that he does not remember the nature of the discussion about which Officer Willis complained. He thinks it would have been "not unlike several other conversations in the lunch room." He remembers that officer Smythe approached him afterwards and told him that Mr. Willis had "taken exception" to something he had said, and would approach him on it. Officer Willis did not approach him. When he learned that officer Willis had made a complaint, he spoke to him and apologized, both orally and, the following day, in writing. He testified that it was not. his style to intentionally embarrass or belittle anyone, and that if he offended anyone, he would apologize. This was his written apology to Officer Willis: Dear Mr. Willis It is with sincere regret and disappointment, to be informed by Mr. Evetts, that a conversation/discussion that occurred during lunch, 07 Aug 91, offended you in such a manner, as to warrant formal charges. I cannot recall,- during my 30 years in the work_force, an allegation or accusation or incident that has affected me so personally: As a result of "hitting home", you may be assured that in the future, I shall' curtail any comment and refrain from any conversation that may be construed to be racist or sexist. Please bear in mind, the discussion in question was never meant to belittle anyone. In conclusion Al I would at this time offer and express my most honest and sincere apology.. Ias]/ for your understanding and forgiveness regarding this matter and I am prepared to make a sincere public apology. Please, allow me to rebuild the good working ~elationship, we have developed over the past six years. With respect to the complaints first raised with him at the meeting of Monday October 28, 1991, the grievor said he did not know the nature of the complaints before that meeting. He was not asked whether, having learned of their complaints on Monday, October 28, 199.1, he apologized to Officer Bragg or Officer Logan either before or after the disciplinary meeting held on Friday November 1st. There is no evidence that he did. He was not asked for an explanation of this, nor did he offer one. The grievor testified that he had does not remember the specifics Of the August 1991 lunch room conversation about which officer Bragg complained. He said that the lunchroom has always been a hub of activity in which there is an expression of views. Until this incident, he said, such conversations were "left in the lunchroom." He did not contradict any. aspect of officer Bragg's testimony. The grievor testified that he remembered the incident in which he approached officer Logan. He said it started in the lunch room. Officer Logan was not there. The subject of her previous employment and the article she had written came up in. conversation. He testified that several individuals said they felt uncomfortable because there are a lot of jokes and innuendos. After this, he spok~ to officer Logan in the hall. He claims to have said "I've got to ask you. I. feel uncomfortable. Where do you stand with respect to teZ~ing jokes and mak/ng comments?" He says he did not refer to her sexual harassment complaint or to sexual harassment during this encounter. Decision The grievor was disciplined for his conduct toward three fellow officers: Al Willis, Susan Bragg and Shelly Logan. The employer concluded that in each case he had engaged in "harassment" of the sort prohibited by the Human Rights Code, R.S.O. 1990, c. H. 19. On that basis, and in the belief that this conduct had gone on "over a long period of time" and had continued after the grievous apologies, the employer imposed an 80 hour suspension -- the equivalent (for a 40 hour per week worker) of a two week suspension. The Human Rights Code prohibits harassment "because of' race or sex. It defines "harassment" this way: "Harassment" means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. The words '"a course of' are an integral part of the definition, and require some degree of repetition: see Cuff v. Gypsy Restaurant (1987), 8 C.H.R.R. D/3972, '87 C.L.L.C. ~ 1%015 (Bayefsky). Mr. Willis apparently made more allegations to the employer than he made in bas testimony before us. As in any other discipline grievance, the employer bears the burden of proving the truth of the allegations which it says justified the action it took. We have been careful to set out everything~ the employer adduced from Mr. Willis in his testimony about the single occasion on which the grievor's words offended him. Based on that testimony, we are not satisfied that the grievor subjected Mr. Willis to '"harassment" because of race (or any other pro. hibited ground) as defined by the Human Rights Code. It was not suggested that there was any other basis on which the grievoFs conduct on August 7, 1991, as described in the testimony of Mr. Willis, could be the basis for discipline. The anti-harassment provisions of the Human Rights Code require, among other things, that a worker have regard to the sensibilities of others in bas or her workplace. One would hope and expect that those provisions permit genuine efforts to ascertain from a fellow worker what his or.,her sensibilities are, if that can be done without offending sensibilities of which the questioner already knows or 'ought to know. We are satisfied, however, that the grievor's August 1991 encounter with °fficer Logan was not an effort of this sort, We accept Ms..Logan's version of that encounter with the grievor where it conflicts with his. The grievor had reason to minimize his conduct. We find that he did. Given the lunch room discussion which he says preceded that encounter, it is hard to believe his claim that did not mention her sexual harassment complaint (either explicitly or by reference to her previous employment or her 'article) or use the term "sexual harassment" during that encounter. Officer Logan had no reason to fabricate or exaggerate her version of that conduct, and we accept it as accurate. The griever's references to others' negative attitudes toward working with' officer Logan and to the prospect of his spreading "rumours" about her '(false or otherwise) could serve no legitimate purpose in the circumstances. When combined with his sarcastic tone, and against the background of what he knew of her past, the effect those comments had on officer Logan was entirely foreseeable. The griever's verbal conduct toward officer Logan on the occasion in question was undoubtedly unpleasant, uncalled for and inappropriate. The conversation was brief, however, and there is no suggestion that the griever acted inappropriately toward officer Logan on any other occasion. There was not the repetition or persistence that the words "course. of' in the definition of "harassment" appear to require. We are not persuaded that the employer could impose a monetary penalty for "harassment" on the basis of that one event alone. We do think that it was open to the employer to warn the griever that if he engaged in'further or other vexatious conduct toward officer Logan he might be disciplined for "harassment," since such a warning would be entirely accurate. By contrast with his conduct toward officers Willis and Logan, the griever's conduct toward officer Bragg was dearly repeated and persistent. The conduct was vexatious in tendency and, ultimately, in its effect on officer Bragg. While the griever was not expressly warned that it was unwelcome, he ought tO have known it would be. It required no special expertise to anticipate that a female corrections officer who heard comments about the abilities of female corrections officers Would take the · comments as applying to her. The grievers comments were an unmitigated assault on the worth of female corrections officers, and were bound to be unwelcome or, with repetition, become unwelcome to individual female officers who heard them. The griever does seem intelligent, .as the Superintendent Said. It is significant that the griever has not denied knowing and understanding these foreseeable consequences of his conduct toward officer Bragg. That conduct did constitute harassment by reason of sex within the meaning of the Human Rights Code, and was therefore worthy of discipline on the grounds advanced by the employer. · The usual principles of corrective discipline apply here, as the employer's own policy indicates. At the time of his misconduct, the grievor was a good employee with nearly seven years' service unblemished by any previous disciplinary offence. Although the Superintendent quite mistakenly thought otherwise, none of the .misconduct alleged or proven against the grievor occurred after he made his apologies to officers Willis and Bragg in mid-October. If potential for reform of this grievor were the only consideration here, a warning that further offences would attract more serious discipline might have been a sufficient response to his misconduct toward officer Bragg. That would not adequately reflect the seriousness of that misconduct, however, nor would it be a sufficient deterrent to others. While any misconduct which amounts to harassment contrary to the Human Rights Code is serious misconduct, the grievor's misconduct was not so serious as to warrant the equivalent of a two week suspension for a first offence. In our view, the appropriate disciplinary response in all these circumstances was a warning with respect to the incident with officer Logan, as we have said, and a twelve hour suspension without pay with respect to the misconduct toward' officer Bragg. We direct.the employer to substitute that response for the 80 hour suspension and restore the grievor to the position, financial and otherwise, in which he would have been had that been its response in the first place. We remain seised with any issue the parties are unable to resolve concerning the implementation of this direction. Dated at Toronto this2 5 day of November, 1993. . ' Gray, ~i~e-C~ T. Browes-B ugde/?Member Partial Dissent (attached) J. CampbeLl, Ylember IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before '. THE GRIEVANCE SETrLEMENT BOARD Between opSEu (Hoffman) - and - The Crown in Right of Ontario (Ministry of Correctional Services) FILE NUMBER: 2552/91 PARTIAL DISSENT. I cannot concur with the majority with respect to the level of penalty to be imposed on. the grievor. The Board has concluded that his conduct towards Officer Logan was "uncalled for and inappropriate" and. respective of officer Bragg constituted harassment by reason of sex within the meaning of the Human Rights Code; Given these instances, I am of the opinion that the grievor engaged in a pattern of conduct which clearly is in violation of the Ministry's harassment policy. I do not believe that. a 12-hour suspension is an appropriate disciplinary response under the circumstances and Would have directed that a 36-hour suspension be imposed. mpbell,~lember