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HomeMy WebLinkAbout2015-2904.Palmer.18-02-20 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2015-2904 UNION#2016-5112-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Palmer) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Brian Sheehan Arbitrator FOR THE UNION Dan Sidsworth Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER James Cheng Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor HEARING December 13, 2017 -2- Decision [1] The Employer and the Union, at the Toronto South Detention Centre, agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation-Arbitration process, wherein each party provides the Arbitrator with their submissions setting out the facts and the authorities they would respectively rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, and it is without prejudice or precedent. Relevant Factual Background [2] Natalie Palmer (the “grievor”) is employed at the Toronto South Detention Centre as a Correctional Officer 2. [3] The grievance concerns a claim by the grievor that the Employer failed to undertake reasonable precautions to provide for her health and safety; and that, she was subject to harassment and bullying by a Supervisor. [4] On Friday December 11, 2015, the grievor was assigned to work a T19 shift on the A4D unit. [5] At the start of her shift, the grievor raised a concern that she did not feel safe because, in her view, there was not a sufficient staffing complement assigned to the A4D unit. The grievor claims that Sergeant Mohamed informed her that nothing could be done as the entire facility was “short-staffed” that evening. [6] At approximately 8:30 PM, an inmate returning to Unit A4D from a court appearance, became noncompliant with respect to repeated requests of the grievor and her coworker, Correctional Officer McGregor, that he immediately go to his cell. The inmate became agitated; yelling and directing profanity at the grievor. Upon the grievor endeavouring to guide the inmate into his cell, the inmate declared that if the grievor did not take her “fucking hand off of him, he was going to knock her out”. In response to that threat, the grievor called a “Code Blue” on her radio. Ultimately, the grievor and Correctional Officer McGregor were able to secure the inmate in his cell. -3- [7] No one responded to the Code Blue issued by the grievor, as apparently the message was not clearly understood. [8] The grievor telephoned Staff Sergeant Jennifer Beisel. In her Occurrence Report, the grievor stated she was “upset” and “yelling at” Staff Sergeant Beisel trying to explain what had just happened. The grievor requested that she be allowed to be relieved from her shift. Staff Sergeant Beisel suggested that because of being short staffed, she could not be relieved. She advised the grievor, however, that she would have Sergeant Carl Walcott call her. [9] Shortly thereafter, Sergeant Walcott telephoned the grievor. The grievor, in her Occurrence Report, noted that during that phone call her adrenaline was still running high as she attempted to outline to Sergeant Walcott what had transpired. She recounted that all she heard in response was Sergeant Walcott shouting at her; and that, Sergeant Walcott eventually hung up the phone on her. Sergeant Walcott’s recounting of the phone call in his Occurrence Report states that he could not make out what the grievor was saying as she was yelling into the phone; and after unsuccessfully attempting to have her lower her voice, he ended the call. [10] Sergeant Mohamed then appeared on Unit A4D. The grievor advised him that she needed relief as she did not feel safe. Sergeant Mohamed gave permission for the grievor to leave the Unit. The grievor proceeded to Unit A4B, in part, in an effort to calm herself down. [11] Shortly thereafter, Sergeant Walcott entered Unit A4B. Upon seeing Sergeant Walcott, the grievor claimed that she advised him she was very upset and did not want to speak to anyone. The grievor further asserted that when she attempted to leave the unit, Sergeant Walcott, who was already in the sally port, obstructed her from leaving. She asserted that Sergeant Walcott’s actions in blocking her caused her to become more upset and that she yelled for him to move; but that, Sergeant Walcott responded that she was not going anywhere yet. After eventually leaving the sally port, the grievor claimed that Sergeant Walcott continued to follow her down the hallway-- yelling at her. Eventually, the grievor proceeded to an elevator and left the floor. -4- [12] The Occurrence Report filed by Correctional Officer S. Christian indicated that when the grievor and Sergeant Walcott were in the sally port, she heard the grievor advise Sergeant Walcott that she was upset and didn’t want to speak to him due to the fact that he had, according to the grievor, hung up on her. Correctional Officer Christian’s Occurrence Report continued on to state the following: As she tried to leave the sally port Sgt. Walcott obstructed the way for C/O Palmer to leave the sally port. This action made C/O Palmer very upset. It appeared that Sgt. Walcott was blocking C/O Palmer from physically leaving the Sally port of A4B Unit. I saw C/O Palmer walking down the hall and Sgt. Walcott beside her but couldn’t hear what Sgt. Walcott was saying because I didn’t follow them but C/O Palmer was yelling stop harassing me repeatedly. [13] Correctional Officer 2, K. Goswell, who was assigned to the A4 A/B sub-control module, noted the following in his Occurrence Report regarding the incident in question: Shortly after I could hear Correctional Officer Palmer and SGT Walcott yelling at each other in what sounded like an argument but could not understand what was being said. As the yelling continued I heard Correctional Officer Palmer yell” Get out of my way” as SGT Walcott was standing in front of the sally port door to the unit. There was a pause and then SGT Walcott moved into the sally port. I do not recall the length of time of the pause. SGT Walcott then briefly paused again in the sally port exit to the corridor then moved into the hallway. I heard more yelling coming from the A4 corridor but could not understand anything that was said. [14] In the Occurrence Report filed by Sergeant Walcott on the day in question, he outlined briefly his interaction with Correctional Officer Palmer as follows: I went to A4B to speak to CO Palmer but she was still agitated and rude to me. As I arrived she picked up her belongings and was leaving the unit. I attempted to talk to her and she accused me of raising my hands at her. I attempted to talk to her again and she turned and screamed at me “WHY THE FUCK IS THIS GUY FOLLOWING ME.YOU ARE HARRASSING ME.” at this point I was dumbfounded.CO Palmer returned to A4B to pick up her radio while I continued down the corridor to the elevator. [15] Subsequently, Sergeant Walcott, in a written witness statement, provided more detail regarding his interaction with Correctional Officer Palmer on the day in question. He suggested that he had spoken to Correctional Officer Palmer in a professional and calm manner throughout, and he denied the allegation that he had, in some manner, -5- threatened or yelled at her. With specific reference to their interaction in the sally port, Sergeant Walcott provided the following: As we were conversing, CO Palmer and I left unit A4D through the sallyport. In the sallyport, I twice briefly turned around to face CO Palmer. The first time, CO Palmer was walking so closely behind me that she pushed/caused me to go further into the sallyport. It is unfortunate that CO Palmer believes I attempted to block her exit. Initially, when CO Palmer contacted the MOL about the incident, she accused me of assaulting her. I deny CO Palmer’s allegation that I assaulted her or that I attempted to block her attempt to leave. We were in the middle of a conversation and I was simply turning to face the person I was responding to. It was never my intention to hinder or delay her exit whatsoever. [16] The grievor subsequently applied for benefits under the Workplace Safety and Insurance Act, 1997, in relation to the stress and anxiety she experienced as a result of what she viewed as inappropriate actions on the part of the Employer on the day in question. On March 8, 2016, the Workplace Safety and Insurance Board (WSIB) issued a decision, denying the grievor’s claim for benefits pursuant to the WSIB’s Traumatic Mental Stress policy. [17] The grievor did not appeal the March 8, 2016 decision of the WSIB. Decision [18] There is little doubt that the events of December 11, 2015 had a profound adverse impact on the grievor; as the stress and anxiety she experienced as a result of those events, caused her to stay off work for a considerable period of time. Additionally, no issue is taken with the sincerity of the grievor’s perception that not only did the Employer fail to provide the appropriate support associated with a serious incident involving a non-compliant inmate who physically threatened her; but that, additionally, she was subjected to, in her view, harassment and bullying behaviour on the part of Sergeant Walcott. [19] The jurisprudence affirms, however, that the assessment of whether complained- of behaviour constitutes harassment or bullying should not be solely based upon the subjective perspective of the aggrieved employee but must also be dependent on an objective assessment of the evidence. This viewpoint was captured succinctly by -6- Arbitrator Paula Knopf in Nunavut and Public Service Alliance of Canada (2006) 151 L.A.C. (4th) 35 (Knopf) quoted with approval in Humber River Regional Hospital and Ontario Nurses’ Association (August 3, 2017) unreported (Goodfellow): An allegation of harassment is a serious matter. It cannot be taken lightly, and the onus of proof lies with the Union. A finding of harassment can only be made if there is objective evidence to support that claim. The fact that (the grievor) honestly felt that she was being harassed, and the fact that she suffered greatly, is not enough to make this claim succeed. ... The grievance is against the Employer. This grievance can only succeed if the objective evidence supports a finding that there has been abusive conduct as a result of the improper use of a power or departure from reasonable norm. (emphasis added) [20] Further to the above point, not every unsatisfactory exchange between a supervisor and an employee warrants being characterized as constituting harassment or bullying behaviour. As suggested by Arbitrator Goodfellow in Humber River Regional Hospital, supra, supervisors should not be held to a standard of perfection; and not every mistaken action, or failure to act, necessarily warrants to be characterized as harassment. Moreover, an allegation of harassment or bullying must be weighed in the context of the workplace dynamic pertaining to the power of a supervisor to manage and direct subordinate employees. [21] The potential tension that arises between a supervisor’s inherent right to direct the work of subordinate employees and behaviour that could be deemed as constituting harassment is captured in the Respectful Workplace Policy that is applicable with respect to the operations of the Employer. Specifically, at Section 6.9 of that Policy, “workplace harassment” is defined as “engaging in a course of vexatious comment or conduct against an employee… that is known or ought reasonably to be known as unwelcome…”. Section 6.10 however qualifies that stipulation by noting that a “reasonable action taken by a… Supervisor relating to the management and direction of work or the workplace is not workplace harassment”. [22] This is not to suggest that the behaviour of a supervisor that could be termed as abusive or harassing in nature should be excused. Rather, it is an acknowledgement that the interaction that takes place between a supervisor and an employee must be -7- seen against the backdrop that the supervisor has the inherent authority to direct a subordinate employee. Related to this point, and this case being one such instance, it is not necessarily an easy task, at times, to determine whether, in fact, a supervisor’s behavior constitutes an improper use of power; as in, a “departure from the reasonable norm”. [23] Turning to the interaction between the grievor and Sergeant Walcott on December 11, 2015, a review of the submitted evidence reveals that the grievor had experienced a rather significant confrontation with a non-compliant inmate where she did not, in her view, receive the appropriate support from those present in the workplace. Compounding the grievor’s frustration was the fact that she perceived that Sergeant Walcott had hung the phone up on her as she was trying to explain what had transpired. With Sergeant Walcott subsequently appearing on Unit A4B, the grievor, forcefully vented her frustration towards him. From the grievor’s own account of the events, she was agitated, and her adrenaline was running high. On this point, I generally accept Sergeant Walcott’s view that the grievor’s actions towards him could be characterized, at a minimum, as “rude”. [24] At the same time, it could be suggested that Sergeant Walcott’s response to the grievor’s frustration was not necessarily the best approach to adopt. Specifically, it could be suggested that Sergeant Walcott could have, and arguably should have, sought to de-escalate the situation, and simply allowed the grievor to leave the area as she had sought to do. Rather than following that approach, Sergeant Walcott sought to engage with the grievor; apparently seeking to extract from the grievor an explanation as to what had transpired and why, in his view, she was acting so unprofessionally. On this point, Sergeant Walcott’s declaration that he responded, at all times, to the grievor calmly is not fully accepted; as the submitted evidence, including the relevant video evidence, suggests that Sergeant Walcott, albeit not necessarily unexpectedly in the circumstances, verbally responded to the grievor, at a minimum, in a rather forceful and pointed manner. -8- [25] Reviewing the events that transpired in more detail, the evidence as a whole, including a careful review of the video recording of the incident, affirms that the grievor was seeking to quickly exit from the area. Sergeant Walcott, at the same time, was seeking to ensure that the grievor verbally heard him out. In this regard, upon entering the sally port, Sergeant Walcott turned around to address the grievor, which caused her to momentarily stop. Then as they proceeded into the sally port, the grievor endeavoured to move around Sergeant Walcott and at that point there was contact between the two, which caused the grievor to abruptly stop. The video evidence regarding that particular incident is far from definitive. One possible explanation for the contact is Sergeant Walcott’s claim that it was the fact that the grievor was walking so closely behind him that caused the contact. Another possible account would be that as the grievor was attempting to go around him, Sergeant Walcott slightly nudged the grievor, causing her to stop. With the grievor stopped, Sergeant Walcott, in a rather demonstrative manner, is seen addressing her. Further to this point, it is noted that the grievor claimed that Sergeant Walcott declared that she “wasn’t going anywhere yet”. [26] Even if it was accepted that the video evidence is non-conclusive in terms of suggesting that Sergeant Walcott purposely impeded the grievor, his subsequent interaction with the grievor was, in my view, inappropriate. In this regard, after the exchange in the sally port was concluded, and notwithstanding the fact that at that point the grievor was clearly upset, Sergeant Walcott continued in his attempts to verbally engage her. Specifically, as they were leaving the sally port, he turned around and again tried to address her. Then as he followed the grievor down the hallway, he continued to verbally pester her; which led to the grievor turning around and screaming (as recorded in Sergeant Walcott’s Occurrence Report) “why the fuck is this guy following me get away from me. You are harassing me”. [27] In my view, Sergeant Walcott ‘s conduct, and in particular his continued persistence in trying to verbally engage the grievor when she was clearly in an upset and an emotionally fragile state, suggests he had “crossed the line”; as his actions were inappropriate in the circumstances and “beyond the reasonable norm” expected of a supervisor. -9- [28] Arriving at the appropriate remedy in this matter is not necessarily an easy task. The inappropriate behaviour on the part of Sergeant Walcott must be seen, at a minimum, as potentially contributing to the stress and anxiety suffered by the grievor. At the same time, the actions of Sergeant Walcott related to an incident involving a very brief passage of time, consisting of a few minutes in its entirety; and must be seen in terms of a reaction to what he perceived as the unprofessional and inappropriate behaviour of the grievor. Furthermore, Sergeant Walcott’s behaviour, while inappropriate, was far removed from being egregious in nature; and there is no basis, whatsoever, to suggest an improper motive or hostility on his part towards the grievor. Weighing all these considerations, it is my determination that the grievor is entitled to the remedy of being “made whole” with respect to the first seven shifts that she was absent after December 11, 2015. Specifically, seven days should be placed back into the attendance account of the grievor, and she should be compensated for the differential of any lost pay for those days. [29] I remain seized with respect to any dispute regarding the implementation of this Award. Dated at Toronto, Ontario this 20th day of February, 2018. “Brian Sheehan” Brian Sheehan, Arbitrator