HomeMy WebLinkAbout2018-2112.Chung.22-03-31 Decision
Crown Employees Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB#2018-2112; 2019-1024; 2019-1025; 2019-2086; 2019-2531; 2020-2684
UNION#2018-0533-0005; 2018-0533-0010; 2019-0533-0007;
2019-0533-0013; 2020-0533-0001; 2021-0533-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Chung) Union
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The Crown in Right of Ontario
(Ministry of Government and Consumer Services) Employer
BEFORE Janice Johnston Arbitrator
FOR THE UNION Farnaz Talebpour
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Jonathan Rabinovitch
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING February 4, 10, 14 and 17, 2022
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Decision
[1] There are six grievances at issue in this case. They deal with the following issues
and read as follows:
I. Grievance dated June 21, 2018: “I grieve that the employer has
violated my rights with regards to but not restricted to Articles 2, 6, 9
& 8.1.1 of the OPSEU collective agreement.” Settlement desired:
“Advancement to an SO7 level position.”
II. Grievance dated December 5, 2018: “I grieve that my rights have
been violated through articles 2, 3, and 21, as well as any other
article, policy or legislation made known in the course of this
grievance.” Settlement desired: “Full redress, including the removal
of the letter of reprimand on file.”
III. Grievance dated April 30, 2019: “I grieve that my rights have been
violated through articles 2, 3, and 9, as well as any other article,
policy or legislation made known in the course of this grievance.”
Settlement desired: “1. Return to work and have equal rights as other
staff members in the same unit and approve the accommodation
requests by the doctor’s “return-to-work” medical questionnaire
requested on Apr 9th. 2. Ensure development work is performed in a
healthy working environment during the period of outstanding
ongoing grievances. 3. Have access authorizations to all related
servers, development, libraries, sources supported within the unit.”
IV. Grievance dated October 23, 2019: “I grieve that the employer has
violated my rights with regards to but not restricted to articles: Article
2 – Management rights Article 3 – No Discrimination – Employment
Equity. Negative comment and option about griever mentioned by
griever’s manager within the context of a grievance hearing dated
September 11, 2019, at approximately 10:10am.” Settlement desired:
“Retraction of comment and opinion plus any other applicable
remedies.”
V. Grievance dated January 9, 2020: “I grieve that the employer has
violated my right with regards to but not restricted to articles: Article
2- Management rights Article 21 – Discipline and Dismissal. Lai
Ping’s rights were violated when she was issued a Letter of
Reprimand on January 9, 2020.” Settlement desired: “Retraction of
Letter of Reprimand, issues to Lai Ping on January 9, 2020 and any
other applicable settlement.”
VI. Grievance dated February 19, 2021: “I grieve that my rights have
been violated through articles 2,3, and 21 as well as any other any
other article, policy or legislation made known in the course of this
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grievance. Article 2: No proper workup to dismissal. No appropriately
documented trail or advisory to employee. Article 3: Discrimination
against the employee. Article 21.1 No just cause for dismissal.”
Settlement desired: “Full Redress including a restoration to
employment.”
[2] The Grievor, Ms. Lai Ping Chung, has also filed an application with the Human
Rights Tribunal of Ontario (File No. 2019-37873-I). The application asserts
violations of the Human Rights Code that significantly overlap with the above-
noted grievances. As such, the HRTO deferred the application pending completion
of this GSB proceeding.
[3] I heard from three witnesses in this case. Mr. Abraham Esedafe, the Manager of
Citizens Services Transformation (“CST”) in the Ministry of Government and
Consumer Services (“MGCS”) and Mr. Munish Sabharwal, Manager, Business
Solutions, Digital Technology and Innovations Branch, Enterprise Digital Service
Integration Division, GSIC. The Grievor testified on behalf of the union.
[4] This case has a long history. The first day of hearing was April 1, 2019. The
parties attempted to mediate on that day but were unsuccessful. Several other
dates were set over the years and attempts were made to resolve the grievances
but all proved unsuccessful. Ultimately, the parties concluded that arbitration was
necessary. In an attempt to expedite the process, it was agreed that the evidence
in chief of the three witnesses would primarily be via will-say with minimal verbal
testimony and that cross-examination would be conducted in the normal course.
As was noted at the outset, the hearing proceeded via Zoom video conference on
February 4, 10, 14 and 17, 2022.
[5] The Grievor became employed as a Senior Systems Analyst with MGCS in 1998.
In 2001 as a result of a reorganization, the Grievor’s title was changed to
Application Analyst/Developer and she held this position until her termination. Mr.
Sabharwal was Ms. Chung’s manager from March 2016 until December 2019
when Mr. Esedafe became her manager. Mr. Esedafe was her manager up to her
date of termination.
[6] I was provided with a copy of the Grievor’s job description which as noted was
Application Analyst/Developer. Under the heading Purpose of Position, it states
that the position is to, “provide application development, support and maintenance
services for a range of the GSC Cluster supported applications.” This means that
programming or software coding is an essential and critical part of the job held by
the Grievor. The job description also stated that anyone employed in her position
should be proficient with Oracle, Java, Microsoft SharePoint, AS400, DB2, .NET
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and Dynamics. Ms. Chung asserted that when she joined the team managed by
Mr. Sabharwal, she was told that she would not be assigned any tasks which
involved coding. Mr. Sabharwal denied this and pointed out on numerous
occasions that coding was the main duty of the position held by the Grievor.
[7] The Grievor was terminated on February 11, 2021. She was provided with the
following letter of termination:
Feb 11, 2021
E-mail & courier physical copy to employee home address
Lai Ping Chung
Dear Lai Ping,
RE: Termination of Employment
A meeting was held on Feb 11, 2021 at 1:30 PM with yourself, your
Bargaining Unit Representative Kim Bailey, Manager, Abraham
Esedafe, and myself. This letter is to confirm that as discussed at the
meeting, your employment is terminated effective immediately as we
have determined that you are incapable of fulfilling the basic duties of
your position.
In reviewing the matter and to make this decision, I have considered all
of the relevant information available to me, including your job
performance, the performance feedback and counseling that has been
provided to you (orally and in writing), your years of service, your
employment history, and the impact of your unsatisfactory job
performance in the workplace.
As you are aware, your manager has met with you on numerous
occasions to discuss the level of job performance required of an
Application Analyst/Developer and to provide you with directions and
instructions to help you meet the expected standard of performance. In
addition to these meetings, you have also received emails from your
manager where you were provided with feedback and guidance
concerning expectations and your performance. Your manager has
expressed his concern that you are not meeting the job requirements. I
have concluded that, despite these measures, you remain unable to
meet the performance standards required of an Application
Analyst/Developer to the extent that you are incapable of performing the
basic requirements of the position.
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I have concluded that despite the assistance and opportunities for
improvement that you have been provided, your performance remains
unsatisfactory. Accordingly, by the authority delegated to me under
Section 44 of the Public Service of Ontario Act, I hereby dismiss you for
cause in accordance with section 34 of the Act, effective Feb 11, 2021.
You have the right to grieve your dismissal.
Please return any MGCS assets in your possession immediately. The
personal contents of your workstation will be collected and sent to you
at your home address.
Sincerely,
Bhawnesh Sharma,
A/Head, Business Solutions & Operations Branch
Government Services Integration Cluster
Ministry of Government & Consumer Services
222 Jarvis Street, 5th Floor
Toronto, ON M5B 2B8
[8] As is made clear in the letter, the Grievor was terminated as the Employer felt that
she was incapable of performing the basic duties of her position. Although the
letter references that the Grievor was terminated for cause, in final argument
counsel for the Employer characterized her termination as a non-culpable
termination. The Grievor disputes that she is incapable of performing the basic
duties of her position and attributes her termination to racial and age
discrimination. She asserts that harassment by her managers created a poisoned
work environment and made it impossible for her to do her job.
[9] The Grievor’s will-say and supplemental will-say constitute a very lengthy
document. It chronicles events commencing in December 2015 up until her
discharge on February 11, 2021. Ms. Chung’s complaints during the early part of
this time period involve allegations of unfair treatment, differential treatment and
unfairly negative treatment by her manager, Mr. Sabharwal. I am not going to
address each and every allegation raised by Ms. Chung in her will-say, as it is
extremely detailed, but I will provide sufficient examples to illustrate the type of
incidents that the Grievor views as evidence of harassment and discrimination by
her managers. In support of her allegations, Ms. Chung refers to, amongst other
things, many email exchanges she had with Mr. Sabharwal at various times. I have
carefully reviewed these emails and what becomes clear is that what the Grievor
considers harassment is simply the efforts of Mr. Sabharwal to manage the
Grievor.
[10] One of the examples raised by Ms. Chung, which she asserts to be evidence of
discriminatory treatment, relates to the decision of Mr. Sabharwal to not allow her
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to participate in the telework program in the summer of 2016. This program
permitted employees to work from home three days per week. She provides as
support of her allegation an email chain in which she questions the decision. Her
tone in the emails is quite aggressive. She says things such as, “I totally disagree
with you,” and, “I do not agree with your explanation which is irrelevant with
respect to my eligibility as per the program guide.” It is very clear that Ms. Chung
wanted to work from home and this theme comes up again later in her
employment.
[11] Ms. Chung also asserts as evidence of her discriminatory treatment at the hands
of Mr. Sabharwal, an incident that occurred around the end of March 2017. At a
Business Solution Branch meeting, she asserts that when giving credit for a
project and asking staff to stand and receive recognition, that Mr. Sabharwal
deliberately left out her name and did not invite her to stand up in front of the
audience for recognition, as a contributor to the project. She takes the position that
she was excluded discriminatorily and this exclusion constituted a reprisal due to
an incident which happened with a client earlier in the month.
[12] Mr. Sabharwal admitted that he inadvertently did not call out the Grievor’s name at
the meeting and ask that she stand. He indicated that she was seated where he
could not see her and that as he had been called upon by his director without any
advance notice to recognize people, he simply missed her. He apologized to her
afterwards and in fact nominated her to receive an award with the rest of the team.
Ms. Chung does not reference in her will-say that she received an apology, nor
does she mention that Mr. Sabharwal nominated her for the award.
[13] Another example of the discriminatory treatment alleged by Ms. Chung was the
fact that after she notified Mr. Sabharwal of her intention to take vacation from
April 18, 2017 to April 21, 2017, Mr. Sabharwal informed the team about a 5-day
Microservices hands on training at Global Knowledge offices which was scheduled
to take place between April 19, 2017 and April 25, 2017. She asserted that as a
result, she had to change her vacation plan in order to attend the training. She
questioned whether Mr. Sabharwal purposely scheduled the training to subtly
exclude her from the training or to cause her inconvenience and the need to adjust
her vacation plan.
[14] Mr. Sabharwal denied this allegation and stated that it was not true and incorrect.
The training proposal came from an outside vendor and the dates selected were
based on the availability of the instructor. The timing was outside of his control and
it was not his decision.
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[15] Ms. Chung suggests in her will-say that the fact that an individual named Mr. Rajul
Bhatnagar was hired by Mr. Sabharwal as a project manager in November 2017
appeared to be a case of discrimination based on age/race. She suggests that she
had been communicating to Mr. Sabharwal and another manager, her interest and
desire to move to the project management position since she joined Mr.
Sabharwal’s unit. She claims that she was disappointed that she was not made
aware of the new position within the unit by Mr. Sabharwal who she asserts clearly
had the intent to block her career advancement.
[16] Mr. Sabharwal denied these allegations and pointed out that the individual in
question had been hired through an open competition. Ms. Chung did not apply for
the job. He asserted that he had no intention or desire to block the Grievor’s career
advancement or the ambitions of anyone else in his unit.
[17] Ms. Chung asserts, as an example of age discrimination, that in May 2018 Mr.
Sabharwal criticized her for the fact that she was not able to set up a working
development environment on her PC (personal computer) in two week’s time. The
fact that he expected, based on his experience, that a senior developer/
programmer like Ms. Chung should be able to accomplish this task within one
week was cited as an example of discrimination. She felt that he did not give her
any support and did not accept her explanations for the barriers, such as
insufficient space and slowness on her PC, that she encountered while performing
the task. She felt that his remark was demeaning and appeared to be a case of
age discrimination.
[18] Mr. Sabharwal testified that this situation proved that the Grievor was incapable of
performing her job. She cited space/storage issues as the reason she was not able
to set up a working development environment on her PC. Any other developer or
person at her level who encountered a space issue should be able to resolve it in a
few hours. All she needed to do was to delete unwanted files or do a backup. The
fact that she was unable to perform such a simple task illustrated and reinforced
the position of the Employer that she was not capable of performing her job.
[19] As the space issue had not been resolved, in June 2018 Mr. Sabharwal went to
the Grievor’s cubicle in what she asserts as an impolite/rude/disrespectful manner.
She suggests that he suddenly approached her cubicle and checked the disk
space usages on her PC without notifying her in advance. She felt that Mr.
Sabharwal did not believe the space issue that she had reported and was
attempting to find fault with and to discipline her on the spot for being dishonest, if
he could prove that he was right. After seeing the space issue himself, she
suggests that Mr. Sabharwal just walked away without saying anything. The
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Grievor felt harassed by Mr. Sabharwal’s invasion of her personal space and
privacy.
[20] Mr. Sabharwal completely denied the way Ms. Chung characterized this
encounter. He denied being rude, impolite or disrespectful. He remembered going
to her cubicle and asking her to show him what the storage issue was so that he
could perhaps assist her in resolving it. He indicated that he checked the
storage/file space issue and told her she simply needed to delete files/folders that
she no longer needed to do her job. He denied walking away without saying
anything. This incident and the conversation in May were the events that led to the
filing of the first grievance on June 21, 2018. It appears that the space issue was
eventually resolved by the purchase of a memory stick and the storage of some of
Ms. Chung’s files on it.
[21] On November 20, 2018, the Grievor received a letter of reprimand for what Mr.
Sabharwal alleges was unprofessional/disrespectful conduct and for her failure to
follow management direction. As examples of the conduct that gave rise to the
reprimand Mr. Sabharwal described that:
i. On Oct 3, 2018 I went to Ms. Chung’s desk to discuss a task that I
had assigned to her. I had not received regular updates regarding
the task. During that conversation, Lai Ping began to raise her
voice in an aggressive and disrespectful way towards me in the
presence of other colleagues.
ii. Ms. Chung repeatedly declined my meeting requests without
providing any reason. On August 03, 2018 at 3:58 PM Lai Ping
declined a meeting request without providing any reason. At 5:32
PM on that same day she stated to me by email that she had not
received any meeting invite.
iii. I suspended Ms. Chung’s telework privileges from July 23, 2018 to
Aug 20, 2018 as she was not able to complete a certain task
despite having had two months to complete it. That task is usually
completed by other employees with similar skills and experience in
less than one month. Also, providing support to Ms. Chung while
she was working remotely was proving to be onerous. She was
informed by email dated July 17, 2018 that her telework would be
suspended. She was also informed in person on Jul 24, 2018 and
an email reminder was also sent on the same day.
iv. Despite knowing that her telework privileges were suspended, on
Jul 26, 2018 Lai Ping unilaterally and without authorization worked
from home. On October 19th, 2018, Lai Ping also worked from
home without seeking her manager’s prior approval, despite
knowing that such pre-approval is required.
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[22] Ms. Chung has a different view of these events. She suggests that when she
attended a meeting with someone from HR and Mr. Sabharwal, he accused her of
behaving inappropriately at work and failing to follow direction. She denied all
these allegations. With respect to the November 20, 2018 letter of reprimand, the
Grievor responded in her will-say as follows:
a. I felt I was a victim of workplace harassment, the harasser being
my immediate supervisor. Mr. Sabharwal always liked to find fault
with me due to his prejudice.
b. Under Mr. Sabharwal’s supervision, I felt I was treated as a
prisoner in the office. Ms. Manjeet Bhoombla, the branch admin
person, who sat next to my desk acted as a spy on behalf of Mr.
Sabharwal, as she could easily monitor my work activities and
hear my conversations, and gave signal to Mr. Sabharwal who just
sat behind my desk in close proximity, separated by the space
which occupied another desk plus little room that separated the
seats at the two desks.
c. Mr. Sabharwal had bad motive as he tried to justify his disciplinary
action against me based on a number of isolated events. His
action was inappropriate and did not have proper grounds. I felt I
was unfairly treated which caused a significant impact to my
ongoing health issues and led to my stroke and short term leave.
[23] When she received the letter of reprimand, Ms. Chung also asserted that the
employer had bad intentions and was trying to build a case to eventually terminate
her employment or to discourage her from continuing with her employment by
building a toxic workplace environment. She believed they took retaliatory action
against her because of the ongoing grievances.
[24] On November 12, 2018 her doctor, Dr. Sabanathan, wrote to Mr. Sabharwal
outlining that he had advised her to take a leave of absence from work for three (3)
months due to stress relating to her work environment. Ms. Chung went on a
medical leave on December 3, 2018 and filed the second grievance before me
dated December 8, 2018.
[25] I would now like to address the allegations raised by Ms. Chung that the Employer
failed to accommodate her based on disability. While Ms. Chung was on her
medical leave, she alleges that she was periodically disturbed and harassed by
management via emails and phone calls. She suggests that Mr. Sabharwal did not
show any care and compassion about her health and that all he really cared about
was just to get her to complete the health forms. She suggested that this put a lot
of stress and pressure on her because Mr. Sabharwal was repeatedly chasing
after her.
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[26] Much of the communication between Mr. Sabharwal and Ms. Chung at this time
was via email. I have reviewed all of the emails and it is clear from them that Mr.
Sabharwal was not harassing the Grievor but merely doing his job and trying to get
the necessary documentation for her sick leave from the Grievor. The tone of Mr.
Sabharwal’s emails is polite and compassionate. It is very clear from the emails
that Ms. Chung wrote in response that she did not understand the accommodation
process.
[27] In April 2019, Ms. Chung told Mr. Sabharwal that she was ready to return to work.
Mr. Sabharwal indicated that as she had been off for a significant period of time,
she needed to provide the employer with medical information. When Ms. Chung
sought to return to work in April 2019 the employer wrote to her doctor, Dr.
Sabanathan on April 8, 2019 requesting information regarding her current
medically-based restrictions and limitations to enable them to provide the best
workplace accommodation possible. The requested information was in the form of
a series of questions for the doctor. I will set out the relevant ones and the
answers provided:
PLEASE ANSWER THE FOLLOWING QUESTIONS IN AS MUCH DETAILS AS
POSSIBLE. Please note that we are not requesting diagnostic information.
1. Dr. Sabanathan, in the medical questionnaire you completed on March 9, 2019, you
indicated Ms. Chung was unable to return to work. Is Ms. Chung currently able to return to
her duties as an Application Analyst/Developer? - but NOT coding work.
Yes No ______ Date of Return ___________
2. If the answer to Question 1 is yes, is Ms. Chung able to return on a gradual return to work
schedule at this time? Please provide your recommended schedule.
The patient & I agree she can work but we would like her
to work from home x1 month of regular hours.
3. Please describe the medical restrictions and/or limitations that are impacting Ms. Chung's
ability to attend work and/or perform her regular job duties as an application analyst.
Miss Chung feels threatened at work and has an ongoing grievance issue she
feels insecure doing coding work.
4. Please confirm whether the medical restrictions and/or limitations listed above are
temporary or permanent in nature. If temporary, please indicate the expected duration.
Temporary - 1 month
5. What is the current status of Ms. Chung’s medical condition(s)?
Stable Improving ______ Deteriorating ___________
Page 3 of 6
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[28] On April 9, 2019 Ms. Chung returned this completed medical questionnaire to her
Employer. After finally providing the medical documentation, which the Employer
had not had an opportunity to review, Ms. Chung asserts in an email sent to Mr.
Sabharwal dated April 9, 2019 that, “As requested by my doctor for my
accommodation, I shall work at home starting tomorrow.”
[29] On April 15, 2019 Mr. Sabharwal rejected her request to return to work in
accordance with her doctor’s recommended accommodation. On April 15, 2019,
Mr. Sabharwal responded by email as follows:
Hi Lai Ping,
We have reviewed and assessed the doctor's response to the Medical
Questionnaire. Based on the information provided there are significant
medical restrictions that cannot be accommodated at this time by
allowing you to work from home for the next month and not be assigned
coding work or perform your regular duties as per your job description,
as this is not operationally feasible.
At this stage, you are advised to continue to be on a leave of absence
due to sickness for another month as your physician has indicated that
psychological/cognitive restrictions are temporary and are expected to
last one month. We will follow up with another Medical Questionnaire by
the end of April, to be completed and returned to the employer and the
Disability Accommodation Specialist.
To confirm, you are not authorized to work from home until you receive
confirmation from the employer in consultation with the Disability
Accommodation Specialist once a review of the Medical Questionnaire
has been completed.
Regards,
Munish
[30] Ms. Chung alleges that Mr. Sabharwal failed in his duty to accommodate her. She
points to the fact that prior to her sick leave absence, Mr. Sabharwal approved all
other permanent staff on his team to work at home for two days per week in
accordance with the telework program. As she was not offered any similar work
accommodation, Ms. Chung asserts that this is a case of disability discrimination.
On April 30, 2019 Ms. Chung filed the third grievance before me.
[31] It appears that Ms. Chung returned to work in late April or early May 2019. On July
17, 2018 Mr. Sabharwal met with the Grievor in the presence of a union steward
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and Mr. Esedafe. Mr. Sabharwal sent Ms. Chung an email summarizing the
conversation. It reads as follows:
Hi Lai Ping,
I would like to summarize the discussion of our meeting on July 17,
2019, in attendance was you, your union representative, Stephen Rode,
Abraham Esedafe Manager and myself. We discussed your recent work
performance on ONBIS, challenges and expectations of the duties you
are assigned, and clarified the scope of your position and role. We also
discussed a recent workplace incident involving misconduct.
Work Performance
• You provided an update on the tasks you have been working
on during the month of June and July 2019. You indicated
that you were testing ONBIS SO Account integration, and
mentioned that she had limited knowledge of the application.
When asked if you had developed a test plan and test cases
to guide the plan, you indicated that you had not.
Expectations:
• Lai Ping to create Test Plan and Test cases to facilitate her
testing of ONBIS. By writing the test cases, you will be able
to better understand how the system works, as well as
ensure better testing. • Lai Ping to provide list of areas where
she needs help to fully understand ServiceOntario Account
application/system. We (Munish and Lai Ping) will work
together and create a plan going forward. I will arrange for
resources to help you with these activities.
• Lai Ping to make personal effort to learn ONBIS by walking
through the system in the test environment. As your Manager
and your Union Rep, Stephen Rode, encouraged you to build
positive relationship with her colleagues as this will help
create an environment for them to share knowledge with you
and answer any questions you have.
• You also indicated that you needed admin rights to Dev, UAT
and production servers/databases. I advised you again that
this was beyond the scope of your position requirements,
and as such, does not require you to have such access. You
were also advised that the entire process of deployment is
automated, therefore, admin access is not required.
Workplace Conduct
Regarding the incident that took place in our team meeting on July 11,
2019, you admitted that your behaviour was inappropriate during this
meeting when you made negative and inappropriate comments about
your colleagues in a public space. During the meeting, your union
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representative and manager explained to you how engaging in this type
of behaviour is negatively impacting your relationship with your
colleagues and creating a negative workspace. You agreed, and
understood the advice that was provided for your best interest, and
agreed to refrain from engaging in the same behaviour in the future. It
is my sincere hope that you will take the advice provided to you during
this meeting so that you improve your relationship with your peers and
your performance in the workplace. As your manager, I am available to
discuss any challenges you are experiencing with the work assigned to
you as well as any issues you have with your colleagues.
If you have any questions, or concerns, please feel free to contact me.
Thanks and Regards,
Munish
[32] Ms. Chung responded to the email. She denied admitting that her behaviour was
inappropriate and her response, in part, was as follows:
I do not agree with your last comment concerning my behaviour. The
group meeting is a public forum where each team member has the
opportunity to exchange ideas and views openly on a particular issue.
Each individual has his/her own unique personality. I happen to be one
who likes to express my opinion and speak out for the best interest of
the group such as to save resources within the OPS.
[33] Ms. Chung testified that in her view she was further harassed, bullied and
discriminated against in the meeting.
[34] Mr. Esedafe testified that Ms. Chung struggled for multiple years with job
performance prior to her termination. Since 2012, she worked on three of the six
teams in her Branch. She reported to four different managers. Despite working on
different teams and for different managers, she consistently underperformed and
demonstrated that she could not do the work assigned to her. She was
demonstrably unable to perform the core duties of her job, notably coding. After
Ms. Chung returned to the workplace, the Employer tried to accommodate her and
she was generally assigned work that did not require coding. Her assignments
entailed setting up RFCs and CRQs, which are documents required to secure
approval for software to be changed and installed. This type of work involves the
lower skilled non-coding components of a developer’s job. Mr. Esedafe suggested
that her previous managers (including Mr. Sabharwal) created work for her to do
which otherwise would not have been done because it was not necessary.
[35] Mr. Esedafe stressed that coding is the most critical and core part of Ms. Chung’s
job description. Her inability to perform coding work caused significant workload
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increases for her colleagues. In fact, some the team had to rely on one or more
fee-for-service consultants paid about $750 per day to assist with the extra
workload in her unit. By the fall of 2019, Mr. Esedafe testified that it became
increasingly untenable for the Grievor to not do any coding, given her position.
When her manager, Munish Sabharwal, encouraged her to resume coding, she
simply refused, citing the medical note which had been provided in April.
[36] In October 2019 the Employer asked Ms. Chung for additional medical information.
The following letter was provided by Dr. Showraki. The relevant portions read as
follows:
I saw the above-named patient in consultation again on November 11,
2019 upon your referral. As you know the patient is a 65 years old
married Chinese woman, in IT for Ontario provincial public services,
living with her family in Richmond Hill.
The patient who was seen and assessed in firs [sic] in January 2016,
then twice in June and August of 2018, diagnosed with an adjustment
disorder due to work stress and over-demand, and suggested to stay on
her already started anti-depressant, Cipralex by you, has referred back.
She reported that she has not been taking her cipralex and Quetiapine
that was lastly suggested despite still struggling with anxiety,
depression and more work stress. She has not yet been granted
accommodation per medical recommendation and her job has been
given to the younger employees, per her report.
The patient also admitted to be anhedonic, lacking motivation and
energy. She sleeps with difficulty and she has sleep disturbances,
waking up a few times at night so not feeling restful in the morning. She
has lost her appetite, eating and some weight. She has developed mild
difficulties with her concentration and memory. She revealed feeling of
hopelessness, but no suicidal thoughts, intentions or plans.
...
In summery this patient with an adjustment disorder from work stress
and overload is suggested to start her anti-depressant, Cipralex 10 mg
AM again and Quetiapine 25 mg/hs for her insomnia. I have prescribed
her one month supply of the above until she refers back to you for refill
in a month. I also again recommend to her work not to overload her with
difficult work project, specially code works and let her work with less
stress for another few more years until her retirement as she is devoted
to her work and still she needs to work financially.
Thank you for referring this interesting, but unfortunate woman for
consultation.
Sincerely,
- 15 -
M. Showraki, M.D., FRCPC
[37] This letter was provided to Swey Vishwanath the HR Advisor that Mr. Sabharwal
had been working with and obtaining advice from. Mr. Vishwanath in turn
forwarded it on November 28, 2019 to Bruce Dust, the Disability Accommodation
Specialist (the “DAS”) dealing with Ms. Chung’s case. He responded to Mr.
Esedafe by email indicating, “I have had a chance to review this specialist note.
Because the specialist (psychiatrist) noted that Lai Ping was (mid November) non-
compliant with their prescription medication, my advice is that there is nothing to
add with respect to the accommodation plan. Where the physician speaks about
letting her work “with less stress,” this is an entirely subjective assessment and
outside the scope of health professionals. Are you finding it difficult to
accommodate the ‘no coding work’ aspect within her Application Analyst/
Developer position? Would a quick call (approx. 30 minutes) be helpful?”
[38] Mr. Esedafe testified that throughout this time, Ms. Chung performed almost no
coding or software development, which constitute the core duties of her job. When
she was assigned such work, her performance was unsatisfactory resulting in
either missed project deliverables or other staff or consultants completing the
work. This came at a significant cost, both financially and to team morale. Prior to
Mr. Esedafe taking over as Ms. Chung’s manager, Ms. Chung and Mr. Sabharwal
met with Mr. Esedafe in attendance to go through her performance development
plan.
[39] Mr. Esedafe suggested that throughout this meeting, Ms. Chung challenged every
line item that Mr. Sabharwal raised regarding her performance plan or her actual
performance. Mr. Sabharwal asked Ms. Chung to send him the soft copy of the
performance plan and she refused. Mr. Sabharwal therefore typed the
performance rating in an email to her, on which he was copied. In the email, Mr.
Sabharwal stated that, “I have not received the soft copy of your PDLP after
multiple requests” and then provided his feedback which followed up on an in-
person meeting from the day prior. His feedback included:
• “Results achieved are not indicative of any tangible outcome.”
• “Task completion took longer than expected. The task was
completed in almost 3 months whereas medium level skilled
developer is expected to have a functional development environment
in 3-4 weeks.”
• “Overall Performance: Below Expectations”
• “Lai Ping need to improve her technical skills. Lai Ping should take
initiative and help herself by self-learning. Training can be arranged
for specific areas as needed.”
- 16 -
• “Lai Ping should follow management direction and ask for clarification
when needed as related to assigned tasks and duties.”
[40] Mr. Esedafe pointed out that Ms. Chung then replied to the email by inserting her
response in red font. Ultimately, this performance review was never concluded as
she refused to cooperate.
[41] Mr. Esedafe testified that Ms. Chung had a consistent approach when dealing with
performance reviews (both formal and informal). He suggested that for example
she:
a. Includes work that she did not perform and accomplishments that
she did not earn in the PDLP document;
b. Argues aggressively with her manager during the reviews, especially
when the manager seeks clarification of her work/accomplishments;
c. Does not usually concur when her Union representative advises her
to be respectful and cooperative. In the performance review meeting
in October 2019 (which I attended), Lai Ping did not agree with her
Union representative, who appealed to her to be more respectful.
Throughout this meeting she challenged every line item in the review
that her Manager discussed with her regarding her plan or her actual
performance. At the end she did not send the completed review
document to the manager;
d. Stalemates the performance process to make it incomplete, for
example, refusing to sign-off performance plans and performance
reviews;
e. She usually then follows up with grievances and emails to Assistant
Deputy Ministers, Deputy Ministers, Secretary of Cabinet and
sometimes the Premier. The contents of the letters/emails are usually
unrelated to the performance meeting but rather target her
colleagues and the Manager;
f. Follows up with unsubstantiated allegations of discrimination.
[42] Ms. Chung’s version of the meeting is very different. She alleges that Mr.
Sabharwal quickly reviewed her PDLP document but did not recognize and recall
some of the tasks that she had accomplished. She felt that his body language
reflected his surprise, distrust and denial of her contributions and he did not show
any empathy with her as someone going through a difficult period with ongoing
mental health issues. She suggests that the review was short as Mr. Sabharwal
wanted to hastily finish with her before his departure from the unit. Ms. Chung
suggests that there was little discussion during the meeting and that in the end,
Mr. Sabharwal did not sign the document. The next day, Mr. Sabharwal gave her a
poor rating for her performance.
- 17 -
[43] Ms. Chung felt that the feedback provided by Mr. Sabharwal was subjective and
one-sided as he did not give her any recognition or credit at all. She also noted
that there was no indication that Mr. Sabharwal would consider and provide a plan
to adjust her work performance expectations in line with her accommodation
request. Ms. Chung felt that she was unfairly treated because of Mr. Sabharwal’s
prejudice, stereotype and discrimination towards her, as he seemed to be quite
determined to build up the grounds and set the stage for her job dismissal with just
cause.
[44] In her will-say, Ms. Chung describes her communication style as follows:
My style of communication may be considered as always assertive
because I spoke up for myself. During the reviews, I stood up for my
beliefs, values and needs. I needed to defend my performance, as I
was repeatedly under attack by Mr. Sabharwal who tried to
lower/reduce and discredited my efforts and achievements. I would
speak out if I had concerns instead of staying passive. Due to my
mental health issue, it might be possible that I could not control my
emotion if I were aggressively attacked by others. This would give Mr.
Sabharwal the excuse to claim that I do not show respect to others from
my psychological and mental reaction. I always respect others, but if it
is the person’s intention to demean or harass me, I would not bend
down but would fight back.
[45] It was around this time that Ms. Chung filed the fourth grievance before me. On
December 13, 2019, the Grievor was issued a written reprimand. It reads as
follows:
December 13, 2019
Lai Ping Chung
Dear Lai Ping,
RE: Letter of Reprimand
This letter is a follow-up to the meeting held on Monday November 19,
2019, and your follow up emails dated November 19, 2019, where I met
with you, your Union Representatives Kim Bailey and Steven Rode, and
Swey Vishwanath, Human Resources Advisor, to discuss your
inappropriate behaviour and failure to follow direction. Specifically, the
meeting was to discuss the following allegations:
- 18 -
1. You refused to follow my directions as it related to the work
assigned to you;
2. You failed to follow my directions as it related to the unit's
telework guidelines during week of Oct 14th - Oct 18th ,
2019;
3. You failed to follow my direction to maintain a professional,
positive and respectful behaviour towards others in the
workplace;
i. On October 23, 2019, you questioned the
branch admin in the presence of the
employee who you were seeking information
about multiple machines stored at their desk.
Your tone and behavior was aggressive and
unprofessional.
ii. On July 17, 2019, you were counseled in a
meeting with me regarding similar
misconduct/inappropriate behaviour during a
team meeting (July 11, 2019), when you
made comments questioning management's
authority regarding the same employee in
question;
iii. You have previously received a letter of
reprimand dated November 20, 2018 that
counselled you on your
disrespectful/unprofessional conduct and
failing to follow management's direction.
In response to failing to follow my directions as it related to the work
assigned to you, you explained that there are ongoing medical concerns
that are preventing you from completing the assigned coding tasks and
shared with HR and myself medical information that speaks to your
inability to complete the tasks involving coding. As such, I have
reviewed this information and will continue to work with you and provide
you with an accommodation as necessary and in accordance with the
Disability Accommodation Policy. It is my expectation that you continue
to work in a cooperative manner with me regarding any requests for
clarification on medical information, accommodation and comply with
directions provided to you regarding your work assignments.
In regard to your failing to follow my directions as it related to the unit's
telework guidelines during the week of October 14 - October 18, 2019,
you explained that your request to switch your telework day was due to
a scheduled medical appointment to complete a medical questionnaire
that the Employer had requested of you. At the time you made your
request, I agreed to you switching your telework day and had asked you
to advise me an alternate day during the week that you would be able to
attend the office instead. You responded to me in an email stating that
- 19 -
you did not believe you should compensate for switching the telework
day. As you are aware, all employees in the unit are allowed two (2)
telework days during the week. You indicated that you had worked on
November 7, 2019 which was your regular telework day to make up for
the time but failed to communicate or notify me that you were in the
office that day. I explained that this was unacceptable as you cannot
decide for yourself when you should or should not work from the office
as you are required to make these arrangements with me in advance
and with my approval as your manager.
In regard to your behaviour towards your colleagues in the workplace,
you explained that you were simply asking the branch admin a question
about why there were several pieces of equipment stored at specific
employee's desk, the same employee that you have previously raised
questions regarding their qualifications to be employed with the OPS,
inquiring about confidential details about their employment, including
questioning management authority to hire this same individual. You
have been previously counselled to cease and desist your behaviour
targeting this specific employee. You are reminded that you were
provided with a letter of reprimand dated November 20, 2018 regarding
inappropriate behaviour and misconduct in the workplace.
I have reviewed the information and materials you shared with me in
response to the above-noted allegations at the November 19, 2019
meeting and have determined that as an employee of the Ministry of
Government and Consumer Services, your conduct as it relates to
allegation two and three were inappropriate and cannot be tolerated.
Having given full consideration of the facts, your employment history, all
other circumstances and mitigating factors, I have concluded that your
actions are just cause for discipline. It is my decision to issue you this
formal letter of reprimand.
As an Application Analyst/Developer and a long-term employee in the
OPS, we rely on you to be a positive brand ambassador and role model
within the Delivery Citizen Services Transformation Unit, Digital
Technology & Innovation Branch, Enterprise Digital Service Integration
Division, Ministry of Government and Consumer Services. This requires
that you demonstrate consistent professional and respectful conduct in
the following areas:
• Acceptance and completion of assignments, as directed by
your manager.
• Courteous, respectful treatment of colleagues and
management.
• Clear communication and cooperation with your colleagues
and management.
• Report to work on a regular basis at your office location.
- 20 -
• Should you require planned time off or work from home, prior
approval or at least 24 hour prior notification is to be provided
to me, as your manager.
In future, it is my expectation that you will be respectful in the workplace
and demonstrate immediate improvement in your professional conduct
by interacting in a positive manner with colleagues. It is also my
expectation that you will follow direction and ask for clarification, when
needed and in order to complete tasks as assigned. It is also my
expectation that you will follow the unit's telework guidelines and any
changes to your schedules should be discussed in advance with your
manager, and be carried out upon receiving explicit written approval.
Please be advised that any further misconduct may result in further
disciplinary action up to and including dismissal. A copy of this letter will
be placed on your corporate personnel file.
Please also be advised that you have the right to grieve this decision in
accordance with the terms and conditions of your Collective Agreement.
Sincerely,
Munish Sabharwal
Manager, Digital Technology and Innovation Branch
Enterprise Digital Service Integration Division
cc: Corporate File
[46] On January 9, 2020 the Grievor filed the fifth grievance which is before me with
regard to this letter of reprimand.
[47] In December 2019, Mr. Sabharwal left the unit and moved to the Ministry of the
Solicitor General. As noted, Mr. Esedafe took over as manager.
[48] After meeting with the DAS with regard to Dr. Showraki’s letter dated November
11, 2019 Mr. Esedafe wrote the following email on February 13, 2020 summarizing
the outcome of the meeting:
NOTES AND PROPOSAL
1.Coding is an essential part of Ms. Chung’s Application
Analyst/Developer position. Currently, all OPSEU positions in Ms
Chung’s department are vacant and work continues to pile up and
priorities are being deferred due to a lack of resources.
2.DAS confirmed that OPS staff are required to perform the work they
are employed to as per the job description defined for the position within
department that the staff works.
- 21 -
3.DAS confirmed that OPS is not obliged to provide medical
accommodation to staff to exempt them from performing essential
duties, e.g. coding in the case of Ms Chung
4.A review of Ms. Chung’s note (psychiatric specialist) by DAS revealed
that the psychiatrist noted that Ms Chung was (mid November) non-
compliant with her prescription medication, so the DAS advised that:
5.There is nothing to add with respect to the accommodation plan.
Where the physician speaks about letting Ms. Chung work “with less
stress”, this is an entirely subjective assessment and outside the scope
of health professionals. [Also, there is stress inherent in work, otherwise
it would be a hobby.]
6.Ms. Chung needs to comply with her treatment plan by working
closely with her doctor (psychiatric specialist)
...
Previous Temporary Medical Accommodation Strategy
OPS has provided temporary medical accommodation to Ms. Chung in
most of 2019 by exempting her from coding duties, but this is not
sustainable in 2020 due to a backlog of coding work. Prior to the
medical report of November 11, 2019 by her psychiatrist, Ms. Chung
has benefitted from:
• OPS work accommodation – Temporary medical
accommodation was granted to Ms. Chung and a
performance plan created. Nonetheless, the performance
review between the manager and Ms. Chung based on the
accommodated work was stalemated as Ms. Chung
vigorously contested the review of her performance by her
manager.
• Sick leave taken by Ms. Chung as per her STSP
Proposed Final Medical Accommodation Strategy
OPS is committed to treating staff compassionately, so it will extend Ms.
Chung three additional months of temporary medical accommodation
from March 1, 2020 to May 30, 2020 so that Ms. Chung can:
1. Work with her medical specialist to ensure compliance with
her medical treatment plan while doing one or both of the
following:
2. Refresh her coding skills to gain more coding proficiency
during this period by attending coding technical training in
coding programs sponsored by OPS in an Ontario public
college
3. Take sick leave to enable her medical specialists to monitor
her treatment compliance through more frequent medical
monitoring by her medical professionals.
4. Based on the medical recommendations after May 30, 2020,
OPS will evaluate the next steps for Ms. Chung.
- 22 -
[49] It appears that before the Medical Accommodation Strategy could be implemented
COVID-19 intervened. On March 13, 2020 Mr. Steven Davidson, Secretary of the
Cabinet, sent out a memo to all staff concerning COVID-19 with the
recommendation that staff were to work remotely beginning March 16, 2020
through April 3, 2020 where operationally feasible. Ms. Chung therefore
commenced working from home in March 2020 and did so until her termination on
February 11, 2021. She worked from home after March 2020 and never came
back to the office. Mr. Esedafe testified that he stopped assigning her work
because it just wasn't worth the effort given that all efforts at performance
management had no impact. Eventually the growing workload of the team, her lack
of output and performance and the impact that this had on team morale and her
managers made continued employment untenable. Ms. Chung was terminated on
February 11, 2021. The sixth grievance before me pertains to the termination of
Ms. Chung.
[50] Up to and including the arbitration of this matter, Ms. Chung forcefully denies any
inappropriate conduct in the workplace on her part. For example, when Mr.
Sabharwal asserts that she, “raised her voice in an aggressive and disrespectful
way towards me in the presence of others” Ms. Chung portrays her conduct as,
“Mr. Sabharwal micromanaged and harassed me. I did not recall there were other
colleagues present. I work for OPS for about 28 years, I am always respectful in
the work environment, and I am not afraid to stand up and speak out. At the time, I
had ongoing mental health issues, and was under a lot of stress at work. I might
have spoken loud but I do not agree that my tone was aggressive.”
[51] When the Employer asserts that Ms. Chung failed to perform work in a timely
fashion her response is:
I do not agree with the comments related to the longer task completion.
For instance, if the person did not have any exposure to the particular
set up beforehand, you would still need to rely on and follow the
procedures in the related document provided to you. This has nothing to
do with skill and experience. If the documentation provided were
inaccurate and/or incomplete, then you might get stuck somewhere
along the line and have no idea how to overcome this roadblock. This
was what I had experienced. If I had received the correct instructions
and everything went smoothly, I would expect that this might just be a
few hours or a day’s job, depending on the space requirements and the
actual installation run. I felt that Mr. Sabharwal had bad motive to make
up a normal task completion time of about a month to mislead others
that this type of work still requires fair amount of effort so he could not
afford to direct an expert person to provide timely assistance as this
- 23 -
person had other tasks occupying their time. I was also faced with the
environmental issue with my laptop not having disk space and
performance slowness issues. These roadblocks needed to be
addressed immediately in order to perform the actual development. Mr.
Sabharwal had no intention to help me setup my computer and wanted
to make me fail rather than helping me overcome these barriers in a
timely manner.
[52] Ms. Chung continually refers to the space issue on her computer as one of the
main excuses for not completing tasks.
[53] There is one final issue I must address. Ms. Chung in her will-say asserts:
Through the years with OPS, I have observed the formation of a South
Asian network which has diffused its people across the ministries of the
Ontario government to expand and strengthen its power and influence
in the workplace. Because of their ethnicity and cultural background, the
South Asians work in unity and help one another within their own races.
Once a South Asian manager gets a foothold in the company, he or she
often makes an effort deliberately to provide help and support to a
“fellow” in the areas of hiring, promotion and work arrangement. Of
course, this might involve more than one members of the network that
pull the strings behind the scenes as inconspicuously as possible in
order to achieve its goals. This has led to a growing trend in our office
environment which negatively creates potential bias and systemic
barriers in recruitment, hiring and promotion. The encouragement of
such practice would debase the OPS policy of equity which stresses on
fairness in making sure everyone has what they need to succeed and
removing barriers that disadvantage some groups over others. I have
observed and believed that Mr. Sabharwal belongs to this South Asian
network which would back him up against me.
[54] Both Mr. Sabharwal and Mr. Esedafe strongly disagreed with this assertion. In Mr.
Esedafe’s will-say he states:
I understand that the Lai Ping considers herself to be a victim of Anti-
Asian discrimination. I consider this allegation to be completely without
merit. Firstly, the Application Development staff in most of the teams
that she has worked for in the past decade is comprised of staff who are
approximately 75% East Asian (e.g. Chinese, Vietnamese, Korean).
As far as I know, none of her East Asian colleagues have complained of
any anti-Asian discrimination. In fact, most of them have had upward
progressive careers within and outside her Branch. I have never seen
any behaviour that can in any way be construed as discriminatory
towards Lai Ping. From what I have seen and based on conversations
- 24 -
I’ve had with her previous managers, none of the performance
management has been in any way motivated by any prohibited ground
of the Human Rights Code, including ethnic origin and disability.
All of her managers, including myself, have received and continue to
receive training in workplace discrimination, harassment, and
maintaining respectful workplaces.
[55] In his oral testimony, Mr. Esedafe stressed that the Ontario Public Service (OPS)
culture does not tolerate discrimination or harassment. It is very inclusive and
those who receive promotions do so based on merit. Mr. Esedafe disagreed
completely with the Grievor’s suggestion that he had discriminated against her
based on her age. He stated that the older folks are “our crown jewels” and are
treasured and respected for their wealth of experience and knowledge.
[56] Mr. Sabharwal testified that he has never discriminated against any employee or
team members. He suggested that he is inclusive, open minded and always strives
to create a safe environment for his team members. His team consisted of people
from various ethnicities and backgrounds. He recruited people from all
backgrounds and had a great deal of diversity on his team. The Grievor is East
Asian and approximately fifty percent of the staff are also East Asian. No one has
ever complained of discrimination and in fact most have had successful careers
and promotions because of their excellent performance.
[57] Mr. Sabharwal described Ms. Chung’s allegations as totally false, baseless and
incorrect. As a manager he strives to follow principles of equality and equal
opportunity for everyone. He adheres to the OPS policies and culture of
inclusiveness. He stated emphatically that he treats people based on merit
regardless of age or ethnicity.
[58] Mr. Esedafe stated in his will-say that in his view the employment relationship has
reached a point of complete breakdown and stated with absolute certainty that it is
beyond repair. The Grievor’s long and demonstrated history of underperformance
has had a genuine impact on the Branch. She occupied an important role which
was meant to do important technical work. That fact that she could not do the work
had a negative impact on her colleagues and her successive managers. Ms.
Chung has been unable to contribute any added value to the workplace. She
cannot do the basic parts of her job. In addition, she is unable to get along with her
managers or her colleagues. He suggested that were Ms. Chung to return to the
workplace, it would result in a steep decline in morale and productivity among the
unit. He asserted that he was highly confident that it would result in multiple
current staff leaving the unit. If Ms. Chung returned to work, it would seriously
harm the business unit and the Ministry.
- 25 -
[59] In his oral testimony, Mr. Esedafe stressed that the work of the unit is very team
based and that trust amongst the team is crucial. He felt that he could not depend
on the Grievor to perform her work. When she failed to do her job, it resulted in
timelines not being met and others on the team having to do her work. He
characterized attempting to manage the Grievor as “exhausting and draining.” She
continually refused to do coding work and claimed that it was too stressful. She
would never admit that she could not perform coding work so was never willing to
attempt to learn how to do it. In one case she felt that she knew more than the
team lead she was working with and the individual left as he felt she was bullying
him. She was very uncooperative, disrespectful and would not listen to any advice.
Were the Grievor to be reinstated to the unit, Mr. Esedafe felt that other staff would
also leave. Given the shortage of Application Analyst/Developers it would be easy
for them to find work alternative work within the OPS.
[60] Mr. Sabharwal also testified that in his view the employment relationship with Ms.
Chung had completely broken down and he too stated with absolute certainty that
it was beyond repair. Despite attempting to work with her and help her to perform
her work the Grievor was incapable of adjusting her behaviour in the workplace.
She was rude, disruptive, disrespectful to co-workers and managers and
constantly made inappropriate comments in team meetings and in the one-on-one
meetings he had with her. Her coworkers continually complained about her
behaviour and the negative and poisonous work environment she created. They
did not trust her and felt that her refusal to do her job meant that the team was
continually short one member. Mr. Sabharwal testified that Ms. Chung refused to
accept any criticism or change her behaviour. She was insubordinate,
uncooperative, confrontational, aggressive and often even refused to meet with
management.
[61] The Grievor both in her will-say and evidence indicated that she was respectful of
her coworkers and worked well with them. She testified that she had a good
relationship with her coworkers. She claimed to be unaware of any problems or
issues and maintained that she was not aware of any complaints from coworkers.
She testified that she was “very surprised” to hear about this. She did not recall
ever discussing these issues in her one on one meetings with Mr. Sabharwal. She
also testified that she had forty years of experience and picked up knowledge very
fast. She suggested that she was not offered training as Mr. Sabharwal did not
want her to have a high profile and develop knowledge as he did not want her to
get ahead of other team members and do a successful job. Ms. Chung asserted
that Mr. Sabharwal did not mentor her but that she did not want to bring it up as he
would then do negative things to her and tell people not to help her. She felt that
- 26 -
Mr. Sabharwal did not have the same level of technical knowledge that she did
and did not know or follow OPS policies.
Employer Submissions
[62] Counsel for the Employer started his submissions with a summary of the evidence
given in this case. I am not going to repeat most of it as I have already referenced
much of it. However, counsel did ask that I draw certain conclusions from the
evidence. He suggested that the inability and refusal of Ms. Chung to perform
software coding, an essential and critical part of her job was not related to any
medical condition. The medical documentation provided appears to simply state
that she should not perform coding work. This restriction is not related to any
medical condition other than that she found it stressful. The inability and refusal to
code was clearly coming from the Grievor.
[63] Employer counsel suggested that Mr. Esedafe, when addressing the Grievor’s
allegations of discrimination, spoke as a visible minority, spoke from the heart and
spoke as someone who understands discrimination – whether systemic or targeted
to an individual. He made it clear that the folks who were promoted in Mr.
Sabharwal’s team were Chinese. Counsel pointed out that it didn’t matter who the
Grievor reported to, it was always the same allegations and alleged treatment.
When she claims a poisoned relationship with all her managers, it is important to
note that she is the common element.
[64] When referencing the testimony of Mr. Sabharwal, counsel asked that I find him to
be an even keeled, soft spoken, very genuine person who was always ready to
help and ready to mentor. He was willing to help staff and let staff grow and he
promoted staff that were competent. Mr. Sabharwal was a very patient leader who
was committed to helping the Grievor succeed. Mr. Sabharwal was a diligent and
attentive manager, who did his best in the face of very challenging circumstances.
The same can be said for the Grievor’s prior manager, Anthony Zoutman, and her
subsequent manager, Mr. Esedafe. Mr. Sabharwal was extensively cross-
examined and he had complete answers for every question and thoroughly
disagreed with the Grievor’s explanations and excuses. Counsel suggested that
Ms. Chung’s excuses do not hold any water and her allegations are without any
merit whatsoever. As a matter of credibility, he suggested that I should prefer the
evidence given by Mr. Sabharwal and Mr. Esedafe over that given by the Grievor.
[65] Employer counsel suggested that based on the evidence given by the Grievor, it is
clear that she has no insight into her own behaviour in the workplace nor on her
performance. She views her behaviour through rose-tinted glasses whereby
everything was fine and everyone got along. That is simply not true and counsel
- 27 -
urged me to prefer and accept the testimony of Mr. Sabharwal and Mr. Esedafe.
With the Grievor, everything is someone else’s fault, her managers are
incompetent and her colleagues don’t know what they are doing. In her will-say
she alleges that various emails sent to her by Mr. Sabharwal constitute
harassment. The opposite is true. Mr. Sabharwal’s emails are calm and
professional and respectful. Counsel referenced a number of specific emails and
asked that I review these emails. When I do so, he suggested that I will find that
not only do these emails not constitute harassment by any measure, they actually
cast Mr. Sabharwal in a good light as a manager doing his best to provide
guidance and manage the office effectively.
[66] In Ms. Chung’s will-say and in her oral evidence, she raised allegations about an
alleged South Asian network and suggested that she thinks Mr. Sabharwal is racist
and that he “takes care of his people” more than others. Counsel pointed out that
in cross, he asked the Grievor whether, after hearing Mr. Sabharwal’s and Mr.
Esedafe’s testimony denying discrimination, her feelings had changed in any way.
She said no and reiterated that she feels that her South Asian managers don’t
respect her. Counsel stressed that I should not put someone back who firmly
believes – despite the lack of any evidence – that the South Asians in her
workplace are racist. It will poison the workplace to put her back. Ms. Chung has
not changed her behaviour and she is incapable of changing her behaviour. Her
evidence makes it clear that she still feels victimized and still feels that South
Asians are untrustworthy and out to get her.
[67] Turning to the jurisprudence, counsel referred first to Ontario Public Service
Employees Union (Mohamed) v Ontario (Attorney General), 2021 CanLII 127098
(ON GSB) and Ontario Public Service Employees Union (Solomon Smith et al) v
Ontario (Children, Community and Social Services), 2019 CanLII 126475 (ON
GSB) both of which speak to the definition of harassment in the workplace. I will
come back to these decisions later as I agree they provide a helpful analysis. By
the standard articulated in these cases counsel argued that the conduct
complained of by the Grievor does not constitute harassment.
[68] In counsel for the Employer’s opinion, the test for a non-culpable termination has
been satisfied. Therefore, the termination grievance should be dismissed. In the
alternative, counsel asked that should I uphold the termination grievance, I should
conclude that the only appropriate remedy in this case is damages in lieu. This is
not a case where the Grievor should be reinstated to her position. He pointed out
that it was management’s evidence that the employment relationship is beyond
repair.
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[69] Counsel suggested that I heard extensive evidence from Mr. Sabharwal and Mr.
Esedafe about the fact that the employment relationship is beyond repair and their
evidence was credible, consistent and persuasive. The Grievor refused to accept
the decisions of management. She was disruptive, insubordinate, confrontational,
not trusted by her managers to do her job, unable to get along with colleagues,
managers, or clients. And importantly she is incapable of adjusting her behaviour
to permit the continuation of the employment relationship as nothing is ever her
fault. In counsel’s view, her reinstatement would cause significant problems in the
workplace.
[70] In support of this position counsel referred to: Alberta Union of Provincial
Employees v. Lethbridge Community College, 2004 SCC 28 (CanLII), [2004] 1
SCR 727; Ontario Liquor Boards Employees' Union (Massa) v. Ontario (Liquor
Control Board of Ontario), 2000 CanLII 20493 (ON GSB); Ontario Public Service
Employees Union (Massa)v. Ontario (Liquor Control Board of Ontario), 2000
CanLII 20494 (ON GSB); Labour Community Services of Metropolitan Toronto Inc.
v United Steelworkers, Local 7536, 2020 CanLII 88997 (ON LA); Canadian Union
of Public Employees Local 1487 v The Scarborough Hospital (Meyer grievance)
2013 CanLII 16383 (ON LA); and Custom Control Panels Inc. v The
Communications, Energy and Paperworkers Union of Canada (C.E.P.), LOCAL
546 2013 CanLII 41906 (ON LA).
[71] In conclusion, Employer counsel asked that I dismiss all of the grievances before
me and find that the test for a non-culpable termination has been satisfied. In the
alternative, counsel requested that I conclude that damages in lieu of
reinstatement is the appropriate remedy in this case. He then asked what should
the damages look like? The cases often speak to the Grievor taking, in effect, an
early retirement and compensation is assessed on that basis. Arbitrators often
award compensation on the basis of one month’s wages for every year of
seniority, together with a 15% payment for loss of fringe benefits. Were I to do that
in this case, I would arrive at a number that is very significant.
[72] In this case, the Grievor has stated her intention to retire and she currently
qualifies based on her age and years of service for an unreduced pension. This
distinguishes the situation before me from those where damages are assessed
based on an “early retirement” or the fact that the employee will be receiving a
“reduced pension.” Neither are true in our case. Counsel suggested that an
appropriate damages award would be to order the Employer to pay her twelve
months salary at her base rate, plus an award of damages up to fifty thousand
dollars.
Union Submissions
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[73] Counsel for the Union also provided me with a summary of the evidence given by
the Grievor in this in this case, which in counsel’s view, supports a finding that all
of her grievances should be upheld. Again, I am not going to repeat most of it as I
have already referenced much of it earlier in this award.
[74] Counsel suggested that the Employer’s decision to terminate the Grievor was
tainted by reprisal in relation to the Grievor’s prior grievances and Human Rights
Tribunal of Ontario (“HRTO”) Application. On this basis alone, the termination
should be set aside in its entirety and the Grievor should be paid general
compensatory damages for the Employer’s violations of her rights. This case is
about an Employer, that could not, and chose not to tolerate the fact that the
Grievor sought to vindicate and enforce her rights under the Collective Agreement
and the Human Rights Code.
[75] The Employer has attempted to paint the actions of Mr. Esedafe, when he became
the Grievor’s interim manager, as fair. This is inaccurate and unfair. It is clear that
the Employer was fed up with the Grievor and unable to accept any challenges to
their managerial authority, including the Grievor’s efforts to vindicate and exercise
her rights.
[76] This is a termination case. The Employer and management had obligations to the
Grievor in relation to disciplinary procedures it had to follow, including giving the
Grievor sufficient warning that her performance was not acceptable and the
consequences that may flow, as well as the benefits of progressive discipline.
Instead, Mr. Esedafe and the Employer abused their managerial authority and
terminated the Grievor without just and sufficient cause and because she had
exercised her rights under the Collective Agreement and the Human Rights Code.
[77] Union counsel asserted that the Employer has also not satisfied the test for non-
culpable termination in this case. She referred to Maritime Telegraph & Telephone
Co., Ltd. and International Brotherhood of Electrical Workers, Local 1030 (Cotter
decision) (1984) 16 L.A.C. (3d) 318 (“the Maritime Telegraph Case”) at paragraph
47, which outlines the elements which the Employer must satisfy before it may
legitimately terminate an employee for non-culpable inability to perform the job.
These elements are:
1. Has the employer identified in objective terms the nature of the work
to be performed and the standard expected?;
2. Has the employer established that the grievor was made aware of the
standard?;
3. Has the employer established that the grievor’s work performance
was below that standard?;
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4. Did the employer provide supervisory direction to the employee to
assist him to achieve the standard?;
5. Did the employer take reasonable steps to move the employee into
other work within the bargaining unit that was or might have been
within his qualifications and competence?;
6. Did the employer bring home to the grievor the fact that the
performance was unsatisfactory and that dismissal might result from
a continued failure or inability to meet the standard?;
7. Did the employer afford the grievor a proper opportunity to challenge
its assessment of his work by grievance?;
8. Does the evidence support the inference of a continuing inability on
the part of the employee to meet the standard?
[78] This approach was endorsed by the Grievance Settlement Board and adopted by
Vice-Chair Mikus in Ontario Public Service Employees Union (Ng) v Ontario
(Government Services), 2012 CanLII 6214 (ON GSB) at paragraph 94. Counsel
argued that the Employer has failed to establish the 5th, 6th and 8th elements of
this test and as result, the Grievor was inappropriately terminated from her
position.
[79] Regarding the 5th element, the Union submits that the Employer did not take
reasonable steps to move the employee into other work. Mr. Sabharwal testified
that he suggested QA work to the Grievor which she rejected. In her testimony, the
Grievor explained that she was not aware of Mr. Sabharwal’s reasoning and based
on her experience on the team, she felt that this was Mr. Sabharwal’s way of
pushing her out of his team so he did not have to deal with her again. It is the
Grievor’s position that Mr. Sabharwal never properly explained why he wanted her
to take the position or why she was not meeting the requirements of the team.
[80] Regarding the 6th element, it is the Grievor’s position that the Employer and her
manager failed to bring home the fact that her performance was unsatisfactory and
that dismissal might result from it. The Grievor testified that she was unaware of
any complaints from her co-workers and that the senior leads were happy with the
proofs she was providing of her coding work.
[81] With respect to the 8th element, Counsel referred to the comment by the
Adjudicator in Maritime Telegraph Case at paragraph 56 where it was noted that:
“… cases involving non-culpable termination require arbitrators to assess the
prospect of rehabilitation of the terminated employee. In particular this requires an
assessment of whether there is a reasonable possibility that the employee can, in
the foreseeable future, achieve a satisfactory performance level.”
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[82] Union counsel suggested that the Employer’s evidence does not support the
inference of a continuing inability of the Grievor to meet the required standard. As
she testified to, the Grievor would be willing to try coding again if accommodation
could be implemented for her. The Grievor’s will-say also provided evidence of the
technological and access issues that she experienced in her role that prevented
her from completing the required tasks. If the Employer provides the Grievor with
the proper support as she requested, it is her position that she would be able to
meet the standards of the role.
[83] Counsel for the Union argued that the Employer has failed to establish that the
employment relationship is not viable. She suggested that should I find that there
was not just case for termination, the usual remedy of reinstatement should follow.
In her view, only in “exceptional circumstances” should damages in lieu of
reinstatement be ordered: A.U.P.E. v. Lethbridge Community College, 2004 SCC
28, at paras. 50-57. Damages in lieu of reinstatement, “is not and ought not to be a
proxy for progressive discipline. It does not and should not provide an opportunity
for an employer to, effectively, sever the employment relationship and to deny an
essential collective bargaining remedy in circumstances where the application of
progressive discipline may have been less than complete.” See PEGO v. Ontario
(Shannon) (2005), 143 L.A.C. (4th) 193 (Herlich), at paragraph 122 (“the PEGO
Case”) .
[84] It is the Grievor’s position through her evidence that while she had a history of
disagreeing with Mr. Sabharwal and asserting her rights, she also ultimately
complied with management’s directions and did her work to the best of her ability.
In cross-examination of the Grievor, the Employer tried to point to the Grievor’s
prejudice to those of South Asian race in support of its arguments that the
employment relationship is not viable. Those arguments are without merit. The
Grievor in her oral testimony clearly stated that her issues were with Mr.
Sabharwal and his treatment of her. She testified that she likes her co-workers,
believes she can work well with them and would not have a problem reporting to
anyone of South Asian race going forward.
[85] In any case where a terminated employee is ordered reinstated through an
arbitrator’s order, it may of course be “uncomfortable” for the manager, the team
and that employee to work together after the employee is reinstated.
Notwithstanding this, the overwhelming arbitral consensus is that reinstatement is
the usual remedy where an arbitrator determines there was not sufficient cause to
warrant termination. Arbitrators have held that, “any mere concern about possible
friction in the workplace should not be sufficient to warrant denying reinstatement,”
(see the PEGO Case at paragraph 117), and that reinstatement should follow
notwithstanding the fact that arbitration proceedings may have, “generated a
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certain amount of friction” in the relationship (See in this regard Tenant Hotline
(1983), 10 L.A.C. (3d) 130 (MacDowell), at paragraph 32).
[86] In conclusion, Union counsel asserted that the Grievor must not be deprived of the
same protections as any other employee in terms of having the right to adequate
disciplinary warnings, as well as the benefit of progressive discipline and the
opportunity to modify or correct alleged problematic behaviour.
[87] The Grievor has filed grievances in which she asserts harassment, bullying and
discrimination on the basis of her race and age. These grievances and the
arbitration process have had a very real impact on the Grievor emotionally,
mentally and financially. The cumulative impacts of management’s actions in
relation to the Grievor as outlined by her oral evidence and in the Grievor’s will-
says have had a tremendous negative impact on the Grievor. The employer’s
actions have poisoned the Grievor’s work environment and as a result, her work
record has been tarnished, her achievements belittled and she has been treated
like a burden by her team and managers. Since joining Mr. Sabharwal’s team in
2016, the Grievor has felt under attack by her manager. The Grievor takes great
pride in her work and is very serious when it comes to work. She strives to do her
best work but the lack of support and the bullying, harassment and discrimination
she experienced as a result of her race and age at the hands of the Employer
created a poisonous work environment for the Grievor and made it very difficult for
her to do her role properly. Mr. Sabharwal’s treatment of the Grievor worsened her
ongoing health issues, causing her to go on medical leave. In support of her
argument that the Grievor was harassed and discriminated against, Union counsel
relied upon the following cases: Toronto Transit Commission v. Amalgamated
Transit Union (Stina Grievance), [2004] O.L.A.A. No. 5O65, 132 L.A.C. (4th) 225
(Ont. Arb) (Shime); Children’s Hospital of Eastern Ontario v. Ontario Public
Service Employees Union (Labrecque), [2015] O.L.A.A. No. 342 (Parmar); Seguin
v. Great Blue Heron Charity Casino, 2009 HRTO 940 (CanLII) [reported 69
C.H.R.R. D/325]; and Arunachalam v. Best Buy Canada 2010 HRTO 1880
(CanLII).
[88] The Union in this case seeks the following remedies:
• Allow the grievances
• A declaration that the Employer has breached Articles 2, 3, 8.1.1, 9 and
21 of the Collective Agreement as well as other relevant articles;
• A declaration that the Employer has violated the Ontario Human Rights
Code;
• A declaration that the Employer wrongfully terminated the Grievor in
February 2021;
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• An order for the Grievor to be reinstated immediately;
• An order that the Grievor be made whole and given full redress, which
includes: compensation for all lost wages; compensation for all lost
benefits and the restoration of lost pension benefits & seniority; that the
Grievor be granted authorizations to all related servers, development,
libraries, sources supported within the unit; that the Grievor be
advanced to a S07 position; and an order of damages in respect of the
harassment and discrimination the grievor has suffered. This last order
would include: general damages in excess of $15,000 to compensate
for the injury to her dignity, feelings and self-respect associated with the
experience of discrimination; special damages for the salary differences
between her current position level (SO4) and deserved position level
(SO7) which amounts to $289,034; and such other relief as seems just
to this Board.
Employer Reply
[89] Employer counsel objected to any assertion that management had engaged in any
type of reprisal against the Grievor for the filing of grievances or Human Rights
complaints. There is absolutely no evidence to support such a finding and it is
purely subjective speculation. The Union asserted that the Employer did not give
the Grievor sufficient warning that her performance was not acceptable and the
consequences that may flow and engage in progressive discipline. Although this is
not a progressive discipline case, the Employer did in fact issue two written
reprimands to the Grievor. Therefore, it is not factually correct to assert that the
Grievor had no discipline on file. Counsel also clarified and stressed that when he
suggested an award of damages as a potential remedy, the damages were being
paid in lieu of reinstatement and were not “human rights” damages. The Employer
does not agree that it has in any way violated the Human Rights Code.
Decision
[90] I found Mr. Sabharwal and Mr. Esedafe to be credible witnesses who did their best
to manage, work with and assist Ms. Chung. Ms. Chung on the other hand made
accusations and assertions about her treatment in the workplace which are not
credible. She saw attempts by Mr. Sabharwal and Mr. Esedafe to supervise or
manage her as harassment. When she was treated differently than other staff, she
considered it to be discrimination. She was completely incapable of accepting any
responsibility for her lack of performance and always blamed others. Accordingly, I
prefer the evidence given by Mr. Sabharwal and Mr. Esedafe over that given by
the Grievor.
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[91] I agree with counsel for the Employer when he notes that, based on the evidence
given by the Grievor, it is clear that she has no insight into her own behaviour in
the workplace, nor on her performance. She testified that everything was fine and
everyone got along. It seems that she believes that when things go wrong it is
never her fault but is always someone else’s fault because her managers are
incompetent and her colleagues don’t know what they are doing. I do not accept
that as true and I prefer and accept the testimony of Mr. Sabharwal and Mr.
Esedafe.
[92] I have carefully reviewed the medical documentation provided in this case. I have
concluded that the inability and refusal of Ms. Chung to perform software coding,
an essential and critical part of her job, was not related to any medical condition.
The medical documentation provided by her family doctor in April 2019 states that
she is capable of returning to her duties and then simply states, “but not coding
work.” This restriction is not related to any medical condition. No rationale is
provided for this key restriction. The doctor goes on to state that “we” would like
her to work from home for one month and the reason given is that she feels
threatened at work and has an ongoing grievance issue. The doctor notes that she
“feels insecure” doing coding work. It is clear from this note that the Grievor told
her doctor she did not want to do coding work and wanted to work from home and
he was merely endorsing what he had been told. The inability and refusal to code
was clearly coming from the Grievor and her inability to code is not tied to any
specific disability.
[93] In the specialist’s letter written in October 2019, he too notes, “I also again
recommend to her work not to overload her with difficult work project, specially
code works and let her work with less stress for another few more years until her
retirement as she is devoted to her work and still she needs to work financially.”
Although the doctor does not say that the Grievor cannot perform any coding work,
he recommends that she not be overloaded “with difficult work project, specially
code works.” I am satisfied that not only did the Employer not overload Ms. Chung
with work, they barely assigned her any work particularly at the time this letter was
written by Dr. Showraki. She told the specialist that she was overworked and he
accepted this. However, I am satisfied that it is not true. He finds that she suffered
from anxiety and depression and prescribes medication to help her with this. She
did not take it. No explanation was provided by her for this failure to follow her
doctor’s recommended treatment.
[94] I do not doubt that Ms. Chung found her work to be very difficult and challenging.
Instead of admitting that that was the case and that she was lacking the necessary
skills to perform her job and asking for help, she blamed everyone else around
her, including her managers. It was their fault she couldn’t do her job. She claims
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to need accommodation based on a disability, but I do not accept that the medical
documentation provided establishes this. Ms. Chung either lacked the skills to do
the coding work or simply did not want to do it.
[95] The Grievor claims harassment, bullying and discrimination in the workplace on
the basis of age, race and disability. In the Mohammed Case Arbitrator Petryshen
sets out a review and analysis of some of the jurisprudence which addresses the
test for a finding of discrimination or harassment. Beginning at paragraph 6 he
states:
[6] There is no dispute about the legal principles that apply in this case.
I adopt the principles and tests that are referred to in the following
decisions. With respect to an allegation of discriminatory treatment,
Arbitrator Dissanayake in Ontario (Ministry of Transportation) v. OPSEU
(Brydges et al), supra, set out an excerpt in Moore v. British Columbia
(Education), (2012) 351 D.L.R. (4th) 451 (S.C.C.) in which Abella J.
described the requirements to be met to establish prima facie
discrimination as follows:
As the Tribunal properly recognized, to demonstrate prima
facie discrimination, applicants are required to show that they
have a characteristic protected from discrimination under the
Code; that they experienced an adverse impact with respect
to the service; and that the protected characteristic was a
factor in the adverse impact. Once a prima facie case has
been established, the burden shifts to the respondent to
justify the conduct or practice, within the framework of the
exemptions available under human rights statutes. If it
cannot be justified, discrimination will be found to occur.
[7] In Ontario (Ministry of Finance) v. OPSEU (Fortin), Arbitrator
Luborsky had before him allegations of bullying and harassment made
by an employee against certain managers. In this decision, he provides
a thoughtful analysis of the considerations and tests that are relevant
when addressing a workplace harassment complaint. The following
features of the decision are worth noting, beginning with his
consideration of what the words bullying and harassment mean.
161. Article 3.3 of the collective agreement provides that the
parties: “are committed to a workplace free from workplace
harassment, including bullying, by other employees,
supervisors, managers, and any other person working or
providing services to the Employer in the workplace, clients
or the public, in accordance with the law.” The term
“workplace harassment” is defined in that article as “a course
of vexatious comment or conduct against an employee in the
workplace that is known or ought reasonably known to be
unwelcome”, which is substantially the same as the statutory
definitions of employment or workplace harassment in
- 36 -
sections 10(1) of the Code and 1(1) of the OHSA.
162. The word “vexatious” is defined in The New Shorter
Oxford Dictionary (Claredon Press, Oxford: 1993) as
“causing or tending to cause annoyance, frustration, or
worry” and in law it denotes, “an action or the bringer of an
action that is brought without sufficient grounds for winning,
purely to cause annoyance to the defendant”. Applied in the
context of labour relations, “vexatious comment or conduct
against an employee in the workplace” by a supervisor or
person in authority as that phrase appears in article 3.3 of
the parties’ collective agreement, refers to words or actions
without sufficient grounds or bona fides purposes other than
to cause annoyance, frustration and/or worry to an
employee, constituting a form of bad faith. This must be
distinguished from the words or actions of a supervisor,
which the supervisor reasonably knows is unwelcome by the
employee, but is nevertheless part of the legitimate exercise
of the supervisor’s right to manage the enterprise in the good
faith application of the power expressly conferred under
article 2 of the collective agreement (and any residual
prerogatives), “to manage the business and direct the
workforce”, which is not “vexatious” in itself.
163 The word “bullying” describes a spectrum of conduct
related to the improper use of power that one person has
over another, “to coerce or intimidate weaker persons” (per
The New Shorter Oxford Dictionary, supra). In the Board’s
opinion, “bullying” is a form of an “abuse of power” in the
workplace, which includes conduct by a person in a relative
position of authority against an employee that a reasonable
person would find hostile or offensive causing or having the
potential to cause physical or psychological harm or adverse
employment consequences to the employee, such as: (a)
repeated infliction of verbal invective or maltreatment in the
form of derogatory remarks, foul language and/or insults; (b)
verbal or physical conduct that a reasonable person would
find threatening, intimidating or humiliating, including yelling
and physical displays of aggression and/or any form of
violence; (c) deliberate sabotage or undermining of an
employee’s work performance; (d) whether as part of a
pattern of repeated misconduct or even where it occurs on a
single occasion that is especially severe.
…
165 The foregoing concepts and the appropriate evidentiary
tests for determining whether harassment or bullying has
occurred in the workplace have been considered by
arbitrators and adjudicators in a variety of employment
contexts. For example, in Toronto Transit Commission v.
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A.T.U., Arbitrator Shime defines “abusive conduct” and
“harassment” as follows at paras. 248-9:
248 Abusive conduct includes physical or mental
maltreatment and the improper use of power. It
also includes a departure from reasonable
conduct.
249 Harassment includes words, gestures and
actions which tend to annoy, harm, abuse,
torment, pester, persecute, bother and embarrass
another person, as well as subjecting someone to
vexatious attacks, questions, demands, or other
unpleasantness. A single act, which has a harmful
effect, may also constitute harassment.
[8] Arbitrator Luborsky then proceeded to provide further examples of
the tests that arbitrators have adopted when evaluating allegations of
harassment and abusive conduct. I will set out excerpts from some of
the decisions he referred to. In Nunavut v. P.S.A.C., 2006 CarswellNat
4671 (CAN ARB) (Knopf), the arbitrator wrote as follows:
33 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 its 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. Nor can it succeed if the evidence showed that the
harassment came solely from the community. 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 improper use of power or a
departure from reasonable norm…
[9] In Fanshawe College of Applied Arts and Technology v. OPSEU
(Read), 2016 CarswellOnt 6614 (ON ARB) (Bendel), the arbitrator
commented as follows:
In my view, a prerequisite for a finding of harassment is that
the conduct about which the complaint is made be “a
departure from reasonable conduct”. This was the conclusion
of arbitrator Luborsky in Re Cara Operations, supra, drawing
on language used by arbitrator Shime in Re Toronto Transit
Commission, supra. An employee that complains about
behaviour that is within the realm of reasonable conduct will
be unable to satisfy an arbitrator that there has been
harassment, regardless of the effect that behaviour might
have had on the employee.
I should add that it seems obvious to me that a decision on
the reasonableness of the impugned conduct has to take
account of the particular work situation…
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[96] I would start by agreeing with the observation that an allegation of harassment is a
serious matter. The onus of proof lies with the Union and a finding of harassment
can only be made if there is objective evidence to support its claim. In the case
before me, I am satisfied that all of the conduct the Grievor claims to have been
harassment or discrimination was simply her managers trying to manage her
performance. As was noted by Arbitrator Luborsky, “the words or actions of a
supervisor, which the supervisor reasonably knows is unwelcome by the
employee, but is nevertheless part of the legitimate exercise of the supervisor’s
right to manage the enterprise” does not constitute harassment. All of the conduct
by her managers complained of by the Grievor, was simply the efforts and
reasonable conduct of management attempting to direct her in the performance of
her duties. There is simply no objective evidence of harassment or discrimination
on the basis of age, race or disability in this case.
[97] In the Solomon Smith Case Arbitrator Anderson commented as follows:
14.Whether Code based or not, harassment or bullying is concerned with
conduct, comment or other action. The question is not whether a
complainant believed she was the subject of bullying or harassment.
The question is whether a reasonable person, informed of all relevant
facts, would conclude the impugned behaviour would constitute
harassment or bullying if the perpetrator knew or ought reasonably to
have known that it was unwelcome: Grievor at para. 48; Cara
Operations Ltd. at para. 17 - 20; and Kinark Child & Family Services,
Syl Apps Youth Centre v. Ontario Public Service Employees Union,
Local 213, 2012 CanLII 97669 (On LA) (Marcotte) pp. 15-17. See also
Gauntlett at paras. 18 - 20, holding that statements of belief by the
grievor and others as to the motivations of members of management
were to be given no weight on a non-suit motion.
...
16.The objective test for harassment is reflected in the following comment
by Arbitrator Misra in Ontario Public Service Employees Union (Cross et
al.) v Ontario (Ministry of Community Safety and Correctional Services),
2015 CanLII 60421 (ON GSB), at para. 46:
The arbitrator in [UFCW Local 1518 v. 55369 BC Ltd., 2007 CarswellBC
3880 (D.L. Larson)] noted that harassment normally involves an
element of persistent conduct or a course of activities that involves
hostility, importuning, badgering, intimidation or bullying that causes a
person distress that is inimical to a safe and positive work environment
(para. 31). The exercise of normal management rights does not excuse
harassment, and giving directions, evaluating performance and
disciplining employees should not be considered harassment in the
normal course of events provided that such activities are not carried out
in a manner that is abusive, demeaning or hostile, and has a legitimate
workplace purpose (para. 33). Not every “employment bruise” should be
- 39 -
treated as harassment, and Arbitrator Larson noted that it would be
unfortunate if a harassment process was “used to vent feelings of minor
discontent or general unhappiness with life in the workplace, so as to
trivialize those cases where substantial workplace abuses have
occurred” (para. 34).
[98] I completely agree with the reasoning of Arbitrator Misra when she states: “...giving
directions, evaluating performance and disciplining employees should not be
considered harassment in the normal course of events provided that such activities
are not carried out in a manner that is abusive, demeaning or hostile, and has a
legitimate workplace purpose”. In my view, what occurred in the case before me
was the exercise of normal management rights and Mr. Sabharwal and Mr.
Esedafe were merely trying to direct the Grievor, assign her work, evaluate her
performance and correct inappropriate behaviour. They were never “abusive,
demeaning or hostile” in their interactions with the Grievor and their actions had a
legitimate workplace purpose.
[99] Counsel for the Employer noted that in her will-say, Ms. Chung alleges that various
emails sent to her by Mr. Sabharwal constitute harassment. Counsel referenced a
number of specific emails and asked that I review these emails. He asked that I
find that not only do these emails not constitute harassment by any measure, they
actually cast Mr. Sabharwal in a good light as a manager doing his best to provide
guidance and manage the office effectively. I have reviewed the emails referenced
and I agree that Mr. Sabharwal’s emails are calm, professional and respectful and
are in no way harassing. As the tone of them is professional and very similar to the
letters and emails set out earlier in this award, I have determined that it is not
necessary to set them all out and add to this already lengthy award.
[100] There is also no evidence, other than the subjective and highly speculative
evidence given by the Grievor, to support any finding whatsoever of a South Asian
network. The allegations raised by Ms. Chung are not supported by any objective
evidence and are frankly offensive. The Grievor is incapable of acknowledging any
deficiencies in her performance or behaviour in the workplace. The assertion that
there is some sort of network or conspiracy that is preventing her from getting
ahead and is instead supporting South Asians in hiring, promotion and decisions
pertaining to work arrangements, is without merit and is simply not borne out by
the evidence in this case.
[101] Accordingly, for all of the reasons stated, the first five grievances filed by the
Grievor, which are based on allegations of harassment, discrimination and that she
was inappropriately disciplined in a manner that was not for just cause, are hereby
dismissed.
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[102] Counsel for the Union suggested that the Employer’s decision to terminate the
Grievor was tainted by reprisal in relation to the Grievor’s prior grievances and
Human Rights Tribunal of Ontario (“HRTO”) Application. On this basis alone
counsel suggested that the termination should be set aside in its entirety. She
argued that this case is about an Employer that could not and chose not to tolerate
the fact that the Grievor sought to vindicate and enforce her rights under the
Collective Agreement and the Human Rights Code. With all due respect, I
disagree. There is no evidence before me to support a finding of reprisal.
[103] Counsel for the Employer suggested that the test for a non-culpable termination
has been satisfied and asked that I dismiss the termination grievance. In the
alternative, counsel asked that should I uphold the termination grievance, I should
conclude that the only appropriate remedy in this case is damages in lieu. Should I
conclude that damages in lieu of reinstatement is the appropriate remedy in this
case, counsel argued that I should not follow the normal pattern for the
assessment of the quantum for the damages owed. He pointed out that the cases
often speak to the Grievor taking, in effect, an early retirement and compensation
is assessed on that basis. Arbitrators often award compensation on the basis of
one month’s wages for every year of seniority, together with a 15% payment for
loss of fringe benefits. Were I to do that in this case I would arrive at a number that
is very significant.
[104] In this case, the Grievor currently qualifies based on her age and years of service
for an unreduced pension. This distinguishes the situation before me from those
where damages are assessed based on an “early retirement” or the fact that the
employee will be receiving a “reduced pension.” Neither are true in our case.
Counsel suggested that an appropriate damages award would be to order the
employer to pay her twelve months salary at her base rate, plus an award of
damages up to fifty thousand dollars.
[105] Counsel for the Union asserted that the Employer has not satisfied the test for
non-culpable termination in this case. She referred to Maritime Telegraph &
Telephone Co., Ltd. and International Brotherhood of Electrical Workers, Local
1030 (Cotter decision) (1984) 16 L.A.C. (3d) 318 (“the Maritime Telegraph Case”)
in support of this position. Although I have already set out the list of factors
considered in that case, for ease of reference, I will set them out again. Employer
counsel did not dispute that the Maritime Telegraph Case outlines the elements
which the Employer must satisfy before it may legitimately terminate an employee
for non-culpable inability to perform their job. These elements are:
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1. Has the employer identified in objective terms the nature of the work
to be performed and the standard expected?;
2. Has the employer established that the grievor was made aware of the
standard?;
3. Has the employer established that the grievor’s work performance
was below that standard?;
4. Did the employer provide supervisory direction to the employee to
assist him to achieve the standard?;
5. Did the employer take reasonable steps to move the employee into
other work within the bargaining unit that was or might have been
within his qualifications and competence?;
6. Did the employer bring home to the grievor the fact that the
performance was unsatisfactory and that dismissal might result from
a continued failure or inability to meet the standard?;
7. Did the employer afford the grievor a proper opportunity to challenge
its assessment of his work by grievance?;
8. Does the evidence support the inference of a continuing inability on
the part of the employee to meet the standard?
[106] As noted, this approach has been accepted by the Grievance Settlement Board
and was specifically adopted by Vice-Chair Mikus in Ontario Public Service
Employees Union (Ng) v Ontario (Government Services), 2012 CanLII 6214 (ON
GSB) at paragraph 94. Union counsel argued that the Employer has failed to
establish the 5th, 6th and 8th elements of this test and as result, the Grievor was
inappropriately terminated from her position.
[107] With respect, I do not agree that the Employer in this case failed to bring home to
the Grievor the fact that her performance was unsatisfactory and that dismissal
might result from a continued failure or inability to meet the standard (the 6th
element). I’m not certain that the Grievor ever believed that termination was a
possibility because she refused to admit or accept that there were any legitimate
issues with her performance and with her interactions with her fellow workers.
However, management tried over and over to correct deficiencies in her
performance and her behaviour. The written warning issued to the Grievor on
December 13, 2019 ends by stating that any further misconduct may result in
further disciplinary action up to and including dismissal. I am also satisfied that
the 8th element has been satisfied. The Grievor either will not or cannot perform
coding work at a level that is even close to the standard required and her attitude
on this issue has not changed. The evidence clearly supports the inference of a
continuing inability on the part of Ms. Chung to meet the standard required for her
position.
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[108] However, I do have a concern with regard to the efforts made by the Employer to
move the Grievor into other work within the bargaining unit that was or might have
been within her qualifications and competence as required by the 5th element.
There was some evidence that Mr. Sabharwal did try to assign Ms. Chung other
duties that were somewhat connected to her position. But there is no evidence
before me that establishes that management made any efforts, let alone
reasonable efforts, to find other work for her to perform and made it clear to her
that she faced dismissal if she did not accept a different position within the Ministry
or the OPS. The Employer did not take reasonable steps to move the employee
into other work within the bargaining unit that was or might have been within her
qualifications and competence. They never sat down with the Grievor and gave
her an ultimatum. It was never put to her that she was being reassigned to another
job and had to accept it. Given how intractable and difficult the Grievor is, I am not
sure how such a meeting would have gone, but nevertheless the Employer is
obligated to try. Accordingly, because of this failure, the Employer has not satisfied
the test for non-culpable termination as provided for in the Maritime Telegraph
Case in the case before me and the termination grievance is upheld, subject to
what I have concluded with regard to remedy.
[109] Counsel for the Union argued that the Employer has failed to establish that the
employment relationship is not viable. She suggested that should I find that there
was not just case for termination, the usual remedy of reinstatement should follow.
In her view, only in “exceptional circumstances” should damages in lieu of
reinstatement be ordered and that damages in lieu of reinstatement should not
provide an opportunity for an Employer to, effectively, sever the employment
relationship and to deny an essential collective bargaining remedy. I agree with
counsel that damages in lieu of reinstatement should only be ordered in
exceptional circumstances.
[110] Before determining that this exceptional approach is appropriate, I must be
satisfied on the evidence before me that the employment relationship is beyond
repair. I agree with counsel for the Employer that I heard extensive evidence from
Mr. Sabharwal and Mr. Esedafe about the fact that the employment relationship is
beyond repair and I agree that their evidence was credible, consistent and
persuasive. The Grievor refused to accept the decisions of management. She was
disruptive, insubordinate, confrontational, not trusted by her managers to do her
job, unable to get along with colleagues, managers, or clients. She is incapable of
or unwilling to perform a fundamental part of her job and is unwilling to admit this
fact. And of crucial importance, the evidence is clear that because she feels she is
the victim and has done nothing wrong, were I to reinstate her, her behaviour will
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not change. Nothing is ever her fault and she has indicated no willingness to
change.
[111] If I believed that the Grievor understood and accepted her performance
deficiencies and was willing to do everything suggested by the Employer to
improve her job performance I might have been willing to give her another chance.
But the fact that she does not do so and will not change, coupled with the
behaviour issues identified by the Employer and flatly denied by her, leads me to
conclude that this is the “exceptional circumstances” case in which damages in
lieu of reinstatement, as opposed to the usual remedy of reinstatement, should be
ordered. I do not come to this conclusion lightly but have carefully reviewed the
evidence and have concluded that it is the right answer in this case.
[112] In this case, the Grievor currently qualifies based on her age and years of service
for an unreduced pension. I agree with Employer counsel that this distinguishes
the situation before me from cases in which damages were assessed and ordered
based on the theory that the employee is in effect taking an “early retirement” or
the fact that the employee will be receiving a “reduced pension”. Neither are true in
this case. However, I must also take into consideration that the Grievor is a very
long service employee.
[113] Arbitrators often award compensation on the basis of one month’s wages for every
year of seniority, together with a 15% payment for loss of fringe benefits. Were I to
do that in this case would arrive at a number that is very significant and would
constitute a windfall to the Grievor. Counsel suggested that an appropriate
damages award would be to order the employer to pay her twelve months salary at
her base rate and up to $50,000 as damages. After careful consideration I have
determined that it is appropriate to award the Grievor 1.5 years of salary which
amounts to approximately $135,000 minus deductions and $45,000 as damages
for the loss of her bargaining unit position.
[114] Accordingly, the termination grievance is upheld in part. In the event that the
parties have any difficulties with regard to the interpretation or implementation of
this decision I shall remain seized.
Dated at Toronto, Ontario this 31st day of March 2022.
“Janice Johnston”
Janice Johnston, Arbitrator