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HomeMy WebLinkAbout2017-1142.Derjugin et al.23-06-02 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#2017-1142; 2017-1144; 2017-1188; 2017-1189; 2017-1191; 2017-1193; 2017-1194; 2017-1391; 2017-1393; 2017-1533; 2017-1534; 2017-1535; 2017-1536; 2017-1537; 2017-1538; 2017-1634 UNION#2017-0234-0112; 2017-0234-0114; 2017-0234-0115; 2017-0234-0116; 2017-0234-0118; 2017-0234-0120; 2017-0234-0121; 2017-0234-0129; 2017-0234-0131; 2017-0234-0143; 2017-0234-0144; 2017-0234-0145; 2017-0234-0146; 2017-0234-0147; 2017-0234-0148; 2017-0234-0134 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Derjugin et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Kenneth Petryshen Arbitrator FOR THE UNION Max Halparin Ursel Phillips Fellows Hopkinson LLP Counsel FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING March 13, 2018, August 19, 2019, February 5, September 18, October 23, November 2, 25, 30, December 7, 16, 2020, January 13, February 3, March 17, March 26, October 27, November 18, December 15 and 21, 2021 -2 - Decision [1] This case is about whether the Employer failed in its obligation to manage a difficult employee in the Offender Transfer Operations unit (hereinafter referred to as “the Bailiff Department”). I have sixteen grievances before me. Ten of the grievances were filed between June 28 and June 30, 2017 on behalf of seven Provincial Bailiffs (“PB’s”) and three Regional Transfer Coordinators (“RTCs”). The three RTCs are Dominic Bozzelli, Vince Murphy and John Olivierre. The seven PBs are Scott Willey, Mark Derjugin, Wendy Bartlett, Gregory Bryant, Carlos Reis, Jeffrey Hintz and S. Scaduto. Six of the grievors filed another grievance dated August 23, 2017, in which they essentially complained about the Employer’s inaction with regard to their June 2017 grievance. [2] In supporting the individual grievances, the Union took two central positions on the way in which the Employer managed or failed to manage PB John Pacheco. It alleges that the Employer should not have reinstated Mr. Pacheco to the Bailiff Department in June of 2017. It was the Employer’s decision to return Mr. Pacheco to the Bailiff Department which led to the ten grievances that were filed between June 28 and June 30, 2017. The other allegation is that the Employer failed to adequately address the harassing and discriminatory conduct of Mr. Pacheco against each grievor which contributed to a poisoned work environment. With respect to these allegations, the Union argued that the Employer breached articles 2 - the management rights provision, 3.3 - the no workplace harassment provision and 9 - the health and safety provision, of the Collective Agreement, the Workplace Discrimination and Harassment Prevention Policy (the “WDHP Policy”), the Ontario Health and Safety Act (“OHSA”) as well as article 3.1, the discrimination provision in the Collective Agreement and the Ontario Human Rights Code (“OHRC”) in relation to Ms. Bartlett. The Union seeks a declaration for the Collective Agreement breaches and damages for the grievors for the Employer’s breach of their health and safety rights. The Employer took the position that it did not breach the Collective Agreement, the WDHP policy or the statutes as alleged by the grievors and the Union and it requested that the grievances be dismissed. The -3 - parties agreed to first deal with the question of whether the allegations made by the grievors have merit. [3] The first day of hearing was on March 18, 2018. The Union did not provide particulars until January 27, 2020, and it commenced calling evidence in December of 2020. As a result, the witnesses faced the challenge of testifying about events that had occurred at least over 3½ years earlier. The Union called each of the ten grievors to testify. The Employer called the following four witnesses: Mr. Tom Dykstra, Manager of the Bailiff Department, Mr. Adam Watson, Regional Transfer Manager (“RTM”) and later the Provincial Transfer Manager (“PTM”), Mr. Chris Lacroix, Deputy Regional Director, and Mr. Suneel Bahal, a lawyer employed by the Treasury Board Secretariat. Except for Mr. Bahal, the evidence-in-chief of each witness was set out in a will-say statement. [4] I note that Mr. Pacheco requested intervenor status as a third party in this proceeding. I dismissed this request for reasons set out in a decision dated November 24, 2020. At the conclusion of the Union’s evidence, the Employer made a non-suit motion. I dismissed this motion in a decision dated April 23, 2021. Before turning to a summary of the testimony from each grievor about their interactions with Mr. Pacheco and the testimony from some of the Employer witnesses, I will set out the factual context for the grievances that came from the testimony of all of the witnesses. [5] Since approximately 2001, the Bailiff Department was centered at the Maplehurst Correctional Centre (“Maplehurst”). For the relevant period, there were about 20 employees that held home positions as PBs or RTCs, most of them located at Maplehurst. Bailiff trained Correctional Officers (“COs”) were used to fill in if additional staff was required. The main task for a PB is the movement of offenders in Ministry vehicles between correctional institutions in Ontario. Typically, each trip moving offenders is made by a team of two PBs. The RTC’s are involved in organizing the trips and in scheduling overtime, with manager approval. The RTCs also make trips transferring offenders which are usually on overtime. The PBs and the RTCs reported to an RTM and the RTMs reported to the Manager of the Bailiff Department. Mr. Dykstra became the -4 - Manager of the Bailiff Department on January 19, 2015, replacing Mr. A. Quinn. At the same time, Mr. Watson became an RTM with responsibility for the Central and West Region. Ms. Pam Fernandes subsequently joined the local management team. Mr. Dykstra, Mr. Watson and Ms. Fernandes remained a part of local management until the Employer closed the Bailiff Department in September of 2019. [6] The PB position was a sought after job in the Ministry. PBs and RTCs were paid more than COs and they were provided with considerable overtime opportunities. These positions had a fair degree of independence and responsibility. Given their responsibilities for the care, custody and control of offenders, it was important for PBs and RTCs to trust each other while performing their duties. [7] Mr. Pacheco joined the Bailiff Department in September of 2009 pursuant to a decision of the GSB. He had been a CO at the Don Jail where he had filed grievances and was involved in what can be referred to as the Tardiel et al. proceeding. In a decision dated June 23rd, 2009, a Vice-Chair made directions in relation to Mr. Pacheco’s grievances, two of which are set out below: … [2] As a permanent accommodation, the Grievor is to be transferred from his current position to that of a provincial bailiff (“the bailiff position”). [3] The bailiff position will become the Grievor’s home position upon him commencing his duties in that position. … [8] By at least 2013, it was evident to both management and the PBs that there were some persistent workplace issues that had to be addressed. The Employer retained CanMediate International (“CMI”) to assist in identifying and addressing a number of conflict and working relationship issues. The Employer hoped that the involvement of CMI would lead to the creation of a healthy environment where PBs and RTCs engaged with each other on a professional basis. After an information session on March 26, 2013, Ms. M. Gauci, a Conflict Resolution Specialist, conducted interviews with staff to identify issues and concerns and to propose courses of action for resolution. Ms. Gauci produced -5 - a preliminary report dated April 5, 2013. On January 24, 2014, Ms. Gauci held a workplace intervention meeting where 11 PBs and RTCs met to address the concerns of the group. After Mr. Dykstra again retained the services of CMI, Ms. Gauci conducted further interviews with PBs and RTCs between May 27 and June 16, 2015, to obtain updated feedback on the situation in the Bailiff Department. This resulted in an updated interview summary report dated July 2, 2015. Ms. Gauci held a final meeting with the PBs, RTCs and local management on July 24, 2015, to discuss continuing workplace issues. [9] It is unnecessary to review all of the aspects of Ms. Gauci’s reports and the meetings she conducted . In her first report, Ms. Gauci indicated that there were two main conflicts involving three individuals and that the workplace was fractured by camps or cliques. Although she did not mention names, one of the individuals she was referring to was Mr. Pacheco. She noted that some individuals were hyper-vigilant around two individuals out of a concern that they would be implicated in conflict or be accused of harassment and that several PBs often made decisions not to bid on overtime to avoid working with some individuals. The majority of PBs told Ms. Gauci that they were unable to identify solutions other than the transfer of one or more individuals out of the Bailiff Department. In her final report, Ms. Gauci indicated that, “There is a need for individuals to be held accountable for their actions and behaviour. Management needs to continue maintaining workplace behavioural standards and using appropriate management tools in addressing non-productive and disrespectful behaviour.” Ms. Gauci recommended several options that were available to individuals and the group to resolve conflicts, such as conflict coaching, voluntary individual mediations and team building. The Union submitted that management did not follow through sufficiently with the recommendations made by Ms. Gauci to remedy the toxic work environment. The Employer disagreed with this submission. Mr. Dykstra and Mr. Watson indicated in their testimony that they were moved into the Bailiff Department in early 2015 to use their significant managerial experience to provide greater oversight to the department. They both recognized that the main message from Ms. Gauci was that employees had to be held accountable for their inappropriate behaviour. -6 - Mr. Watson indicated that he continually engaged in conflict coaching, team building and some of the other options identified by Ms. Gauci to reduce conflict in the workplace. His constant message to PBs and RTCs is that they were required to deal with each other on a respectful and professional basis. [10] The Employer disciplined Mr. Pacheco four times between February 6, 2015, and March 2, 2026, for inappropriate conduct. On February 6, 2015, he was issued a 10-day suspension for violating the WDHP Policy on March 14 and March 19, 2014, and for violating the Statement of Ethical Principles on March 19 and March 20, 2014. The conduct that gave rise to this suspension included the harassing and bullying of PB Powis. The imposition of a 10-day suspension for Mr. Pacheco’s first offence as a PB was an indication that the Employer considered the conduct to be very serious. I understand that Mr. Powis and Mr. Pacheco had been suspended with pay for a considerable time pending the investigation of the incidents that gave rise to the 10-day suspension. On May 25, 2015, Mr. Dykstra issued Mr. Pacheco a 15-day suspension for leaving the workplace without authorization and for being insubordinate towards Mr. Watson. Following some subsequent issues that had been raised by staff about Mr. Pacheco’s conduct, Mr. Dykstra asked Mr. Watson to investigate and report back to him. A Level 1 Investigation was also conducted in relation to these issues by Inspector M. Mizzi. This process ultimately led to Mr. Dykstra issuing Mr. Pacheco a 20-day suspension in early December of 2015 for conduct that included an unauthorized overtime claim and the removal of a vehicle logbook from the Bailiff’s Office and the copying of the logbook. On January 21, 2016, Mr. Dykstra became aware of another incident between Mr. Pacheco and Mr. Powis in which Mr. Pacheco had alleged that Mr. Powis had engaged in workplace harassment. Both employees were suspended pending an investigation. Following an investigation, Mr. Dykstra terminated Mr. Pacheco’s employment on March 2, 2016, essentially because he was the antagonist in the incident with Mr. Powis, untruthful in his Occurrence Report (“OR”) and in his investigation interview, aggressive and hostile to the investigator and insolent and insubordinate to his manager. -7 - [11] Mr. Pacheco grieved the three suspensions and his discharge. He also filed other grievances, some of which alleged that he had been harassed by the Employer. The parties agreed to proceed to a hearing on the discipline grievances before me, while the other grievances were held in abeyance. Following efforts to resolve the grievances, the Employer began calling its evidence on the discipline grievances on November 18, 2016. Mr. Bozzelli, Mr. Murphy and Mr. Willey were summonsed by the Employer and testified at the Pacheco arbitration proceeding. They each claim that they were told by Employer counsel and Mr. Dykstra that Mr. Pacheco would not be returning to the Bailiff Department. Mr. Bahal and Mr. Dykstra dispute that they had made such statements to these witnesses. Mr. Dykstra indicated that he did not recall the specific comments that he made to the three employees many years earlier about Mr. Pacheco’s return to the workplace. He did not believe that he made the comments attributed to him because he is not a lawyer and was unable to evaluate the risk of Mr. Pacheco being reinstated. He indicated that he likely only said that he hoped Mr. Pacheco would not return to the Bailiff Department. Mr. Bahal testified that the three employee witnesses were reluctant to testify against a co-worker. He indicated that he explained to them that the Employer’s case against Mr. Pacheco could be in peril if they did not testify. He indicated that he explained to them the possible outcomes of the case, but since he could never be certain about the arbitrator’s decision, he did not tell them that Mr. Pacheco would not return to the Bailiff Department. [12] After many days of hearing, I directed that the scheduled dates of June 22 and 23, 2017, be used for mediation. The efforts of the parties to settle all of Mr. Pacheco’s grievances at the mediation session were not successful. The Employer advised the Union at the mediation that it had decided to return Mr. Pacheco to the Bailiff Department. In a letter dated June 26, 2017, Mr. Dykstra advised Mr. Pacheco that his discharge was rescinded and that he was required to report as a PB to RTM Fernandes on July 17, 2017. As noted previously, it was this decision that led the grievors to file the first set of grievances. Simply learning that Mr. Pacheco would be returning to the Bailiff Department was a traumatic experience for many of the grievors. Many of them went off on sick -8 - leave for many weeks and applied for WSIB benefits, claiming traumatic mental stress. Their claims for WSIB benefits were denied. [13] The decision to return Mr. Pacheco to the Bailiff Department was made by the Director of Institutional Operations, Mr. D. Pitfield, after consulting Mr. Bahal. The grievors were not the only ones unhappy with this Employer decision. To put it mildly, Mr. Dykstra and Mr. Watson were not pleased with the decision either. During his testimony, Mr. Bahal, a lawyer with considerable experience in handing corrections cases before the GSB, explained why the Employer elected to return Mr. Pacheco to his former position. He indicated that a number of factors were considered, including the number of hearing days that had been held thus far, the prospect of many more hearing days, the cost of the proceeding and the potential amount of the compensation owing to Mr. Pacheco if the Union succeeded completely. Mr. Bahal also indicated that he was less confident about the outcome of the proceeding as the case went on and advised Mr. Pitfield accordingly. In face of the prospect that the Board might reinstate Mr. Pacheco to his home position in the Bailiff Department and the continuing insistence of the Union that Mr. Pacheco be returned to his home position, the Employer decided that Mr. Pacheco would be put back to work as a PB if the mediation was unsuccessful and leave the issue of compensation, if any, to be resolved later. Mr. Bahal indicated that after considering all of the circumstances, the Employer believed that it had little option but to return Mr. Pacheco to his home position. As one might expect, the Employer planned to keep a close eye on Mr. Pacheco when he returned to the workplace and to address any inappropriate conduct on his part that was brought to management’s attention. [14] The Union requested that I order terms and conditions to be applied to Mr. Pacheco’s return to the workplace. I was asked to order the following terms: A. That the Employer place the Grievor on a leave of absence with pay until the grievances presently before the Board are resolved or as the Board otherwise orders, without prejudice to any claim the Grievor may make in these proceedings for compensation including compensation for lost overtime pay -9 - B. In the Alternative, a. Before the Grievor returns to work, the Employer via correspondence remind all staff in the Bailiffs’ department of their responsibility to interact with each other professionally and with respect and to maintain a work environment free from discrimination and harassment; b. With respect to the Grievor, the Employer direct all management and supervisory staff, including Regional Transportation Coordinators, to model the requirements in (a) and to enforce those requirements with the staff; c. Any discussion between management and supervisory staff including RTCs and the Grievor other than about the Grievor’s work assignments or with the Grievor’s consent will include a member of the Local Union executive chosen by the Grievor in his sole discretion (currently identified as the local Chief Steward Chris Lowry). d. Until the grievances presently before the Board are resolved or the Board otherwise orders, if the Grievor files a grievance, that grievance will be referred directly to the Board and all other steps provided for in the CA will be waived, and the Grievor will be placed on leave of absence with pay, without prejudice to any claim the Grievor may make by way of remedy; e. No subject or incident that took place before the Grievor’s return to work of which the Employer was aware or reasonably ought to have been aware involving the Grievor may become in whole or in part the subject of an inquiry, investigation and/or discipline, except by leave of the Board. The Union’s request was based on the theory that Mr. Pacheco needed protection from harassment by his co-workers and management when he returned to the workplace. For reasons set out in a decision dated July 17, 2017, I dismissed the Union’s request for such orders. [15] The evidence about when Mr. Pacheco returned to work in the Bailiff Department was not very precise. There is some indication that he did return in 2017 for a brief time and then was absent from the workplace. He certainly was at work in May of 2018. I understand that Mr. Pacheco returned to work for only about 20 days before he was suspended with pay pending an investigation and then went on sick leave. While at work he was not assigned any trips and spent his time performing maintenance tasks and reading materials to reacquaint -10 - himself with PB work after his long absence. After spending six months on short term sickness, he was approved for long term income protection. As early as June 21, 2018, the Employer took steps to find Mr. Pacheco a temporary assignment outside of Institutional Services due to his limitations and restrictions. By the spring of 2019, Mr. Pacheco was placed on heath reassignment as he was permanently restricted from returning to his home position or to anywhere else in Institutional Services. Mr. Pacheco never did return to work as a PB before the Bailiff Department closed. From at least early 2015 until its closure in 2019, Mr. Pacheco did not spend a lot of working time in the Bailiff Department given his suspensions pending investigations, his disciplinary suspensions and the termination of his employment on March 2, 2016. When the grievors filed their first set of grievances in June of 2017, Mr. Pacheco had not been at work for at least 16 months. After the first set of grievances were filed and after he returned to work, Mr. Pacheco only spent about 20 days working as a PB, most likely in or about May of 2018. His active employment had ended well before the Bailiff Department was closed effective September of 2019. [16] After the Employer returned him to his PB position, the hearing of Mr. Pacheco’s discipline grievances continued for a number of years until the end of December 2019. By this time, more than 80 hearing days were required to complete the Employer’s evidence and to address many motions on production, evidentiary motions and a non-suit motion made by the Union. Until this stage of the proceeding, it is fair to say that the Union had been vigorously supporting Mr. Pacheco’s efforts to return to the Bailiff Department and to be compensated for his losses. This changed in 2020. A detailed review of what had occurred to change the situation for the Union is unnecessary for the purposes of this case. Suffice it to say that Mr. Pacheco became upset when a number of his hearing dates were adjourned due to the pandemic and he had made threats against Mr. Bahal and others in emails sent to Union counsel. I note that as of January 2020, new counsel from the same law firm took over the handling of Mr. Pacheco’s grievances for the Union. Complying with his obligations, Union counsel advised Mr. Bahal and the police of the threats. The Employer -11 - terminated Mr. Pacheco’s employment on July 16, 2020, and Mr. Pacheco grieved the discharge. The Union reviewed this grievance and his other grievances in light of the threatening and violent content of Mr. Pacheco’s emails. On September 16, 2020, the Union settled all of Mr. Pacheco’s grievances with the Employer, including the discharge grievance. Mr. Pacheco made an unfair representation complaint against OPSEU. In a decision of the Ontario Labour Relations board dated December 18, 2020, Mr. Pacheco’s application was dismissed. [17] I will now turn to briefly summarize the testimony from each of the grievors. Each grievor testified about Employer’s decision to return Mr. Pacheco to the Bailiff Department and how the prospect of his return affected him or her. In summarizing their testimony, I will focus primarily on the evidence called to support the claim of each grievor that the Employer had failed to adequately address the harassing or discriminatory conduct of Mr. Pacheco that was directed at each of them which contributed to a poisoned work environment. Mr. Bozzelli was the first witness called by the Union. In summarizing their evidence, I will follow the order in which each grievor was called to testify by the Union. [18] Mr. Bozzelli was a senior employee of the Ministry, starting his employment as a CO in 1986. He became a PB in 1996 at the Hamilton-Wentworth Detention Centre and an RTC in 2006 after the Bailiff Department had been established at Maplehurst. He referred to the contents of Ms. Gauci’s report dated April 5, 2013, his attendance at mediation meetings in January 2014 and July of 2015, and Ms. Gauci’s report dated July 2, 2015. Mr. Bozzelli indicated, based on the reports from Ms. Gauci, that the Employer was aware of the atmosphere of intimidation that Mr. Pacheco had created in the Bailiff Department. He also indicated that he was unaware of any systemic responses attempted by the Employer after receiving Ms. Gauci’s reports. He conceded however that the Employer had restructured and provided more oversight to address issues when Mr. Dykstra, Mr. Watson and Ms. Fernandes were brought in as managers. -12 - [19] Mr. Bozzelli had worked with Mr. Pacheco about 15 times between 2013 and 2015. On a trip on February 24, 2015, Mr. Pacheco told him that the managers at the time were incompetent, that he was going to “go after” them and that he was going to “whack them”. Mr. Bozzelli did not interpret these words as physical threats against the managers. He believed that Mr. Pacheco was only expressing an intention to make the working environment difficult for the managers. Mr. Pacheco became agitated when Mr. Bozzelli told him that the managers were not as stupid as he thought, so he changed the subject. Mr. Bozzelli felt threatened by Mr. Pacheco’s demeanor and body language. Mr. Bozzelli could not recall if he told anyone in management about the conversation. [20] On a trip on March 13, 2015, Mr. Pacheco was quiet initially, then took out his personal phone and placed it on the dashboard, pushed a button and it seemed to Mr. Bozzelli that it was recording. Later in the drive, Mr. Pacheco asked him if he knew what had taken place involving him at the Don Jail. He then told Mr. Bozzelli that he had outsmarted and intimated the police, investigators and senior management. There is no indication that Mr. Bozzelli told anyone in management about this conversation. [21] Mr. Bozzelli was present for the events that led to Mr. Pacheco’s 15-day suspension. On April 28, 2015, while he and Mr. Willey were outside his RTC office, Mr. Pacheco approached them and said that his trip was cancelled and that he was going home. He also tapped his fingers on his chest and said “I run the show here.” The trip was completed by other PBs. Mr. Bozzelli was directed by Mr. Watson to write an OR after he told him about the incident. Mr. Bozzelli refused because he did not want to report on a union member and he believed that there would be repercussions from Mr. Pacheco. Mr. Dykstra called him on the following day and directed him to write the OR. Mr. Bozzelli discussed the matter with the Union and was advised that he could not refuse the order. Mr. Bozzelli then wrote and submitted the OR. A few days later Mr. Bozzelli told Mr. Pacheco that he had written an OR on the April 28, 2015 incident, having been directed to do so by a manager and based on the advice -13 - from the Union. Mr. Pacheco told him that he had just ruined his credibility, that he would tell everyone that he was a rat and that he would get him. Mr. Bozzelli did not take this as a physical threat by Mr. Pacheco. He believed that Mr. Pacheco intended by his comment to create an unhealthy environment for him at work. Mr. Bozzelli indicated during cross-examination that he did not tell the Employer about this conversation at the time. He later indicated he more than likely told Mr. Watson about the conversation when Mr. Pacheco called him a rat. He also stated that he would not volunteer to set out the conversation in an OR. Mr. Bozzelli could not recall working on trips with Mr. Pacheco subsequent to April 28, 2015. He never encountered him after Mr. Pacheco was reinstated and returned to the Bailiff Department. [22] Although he indicated that he had discussed Mr. Pacheco’s behaviour with management numerous times and claimed that management did not address his concerns, Mr. Bozzelli did not provide any other specific examples of Mr. Pacheco’s conduct that he brought to management’s attention. Mr. Bozzelli agreed that Mr. Pacheco did not threaten him with bodily harm, but stated that he did harm to his working environment. [23] After Mr. Pacheco’s discharge, the Employer began receiving anonymous letters sent to different agencies and others in government alleging that Mr. Bozzelli was guilty of time fraud and overtime manipulation. As a result, Mr. Bozzelli was required to participate in interviews where he was asked about the allegations. Mr. Bozzelli believed that Mr. Pacheco made the allegations, although he agreed that there was no evidence to support his belief. Mr. Bozzelli did not dispute that the Employer had an obligation to investigate these types of allegations. All of the allegations were determined to be unfounded. Mr. Bozzelli asserted that the Employer did not support him in dealing with Mr. Pacheco’s campaign of harassment. He recognized however that the Employer had to remain independent when investing allegation of this sort. There was no indication that Mr. Bozzelli had requested any specific support from the Employer. -14 - [24] Mr. Bozzelli was reluctant to testify in the Pacheco discipline proceeding. He stated that his conversations with Mr. Bahal and Mr. Dykstra were a long time ago, but his recollection was that they both told him that it was highly unlikely that Mr. Pacheco would come back to the Bailiff Department. At another point during his cross-examination, Mr. Bozzelli stated that, on the basis of what Mr. Bahal and Mr. Dykstra had told him, he expected that Mr. Pacheco would not come back to work as a PB. During his testimony in the Pacheco discipline proceeding, Union counsel had put to him that he manipulated overtime and offered it inequitably to members of the Bailiff Department. As one might expect, these allegations bothered Mr. Bozzelli. [25] Mr. Bozzelli was shocked when he was told that Mr. Pacheco would be returning to the Bailiff Department. He indicated that management had not provided him with any assurances about how Mr. Pacheco would be prevented from retaliating against the PBs who testified against him. During cross- examination, Mr. Bozzelli appeared to agree that, if reinstated, Mr. Pacheco had a right to be returned to his home position, but he maintained that the Employer had not taken any steps to change the working environment in the face of Mr. Pacheco’s return. Mr. Bozzelli was stressed and anxious about the prospect of working with Mr. Pacheco and he went off work due to mental stress. His health situation was substantiated by his doctor and a counselor. His WSIB claim for traumatic mental stress was denied and he eventually returned to work on November 1, 2017. [26] Prior to the closure of the Bailiff Department in September of 2019, each PB was given the option to retire or to transfer to another institution. Rather than risk choosing the same institution that Mr. Pacheco might select, Mr. Bozzelli decided to retire and did so effective November 1, 2019. [27] Mr. Willey became a CO in January of 1993, an acting PB in 2001 and a full- time PB in April of 2006. Mr. Pacheco was Mr. Willey’s assigned partner from 2009-2012. They then had a positive working relationship. Mr. Willey indicated that Mr. Pacheco often expressed distain for management. Mr. Pacheco indicated that he would “fuck management over” and told Mr. Willey that their -15 - supervisors were incompetent, unqualified and did not deserve their positions. Mr. Pacheco stated that he wanted to be the next Michael McKinnon, meaning that he wanted to stay at home and get paid until retirement. Mr. Willey did not report these comments to management. His positive experience with Mr. Pacheco deteriorated over time. Workdays were made stressful when Mr. Pacheco would routinely argue and disagree with him. Over the years, Mr. Willey had many conversations with co-workers and managers where he described the difficulties in working with Mr. Pacheco. Mr. Willey at no time formally complained about the angry and bitter attitude exhibited by Mr. Pacheco. [28] By early 2013, the Bailiff Department went to a rotating schedule where each PB had three main partners. Mr. Pacheco was unhappy with the Employer’s decision to close the Lindsay bailiff location and dismiss the PBs who had worked out of that location. From February to November 2014, Mr. Willey was redeployed with three other PBs to the Eastern Region. Mr. Pacheco referred to these PBs as scabs and said that they were “whoring themselves to management.” Mr. Willey indicated that by this time Mr. Pacheco had become involved in the ongoing workplace conflict involving other PBs. Mr. Pacheco told Mr. Willey that he would bring the Bailiff Department to its knees if he had to. Mr. Dykstra, Mr. Watson and Ms. Fernandes told Mr. Willey on several occasions that they were aware of Mr. Pacheco’s negative and disruptive behaviour. Prior to his discharge, Mr. Pacheco told Mr. Willey that he would seek revenge against the Employer for its disciplinary action against him. Since Mr. Pacheco was a strong union supporter, Mr. Willey understood that he was indicating an intention to harm management and not the other PBs. There is no indication that Mr. Willey told management about Mr. Pacheco’s comment. [29] Mr. Willey also testified about the work restoration and mediation process conducted by Ms. Gauci. Consistent with Mr. Bozzelli’s opinion, Mr. Willey indicated that he was not aware of any systemic responses from management following the recommendations made by Ms. Gauci in her reports. -16 - [30] After served with a summons, Mr. Willey told Mr. Watson and Mr. Dykstra that he did not want to testify against a co-worker. He indicated that Mr. Bahal told him on more than one instance that Mr. Pacheco would not be getting his job back. In the last instance, Mr. Bahal’s comment was made in February of 2017 in response to “chatter” at Maplehurst, in the A & D area and at Maplehurst generally, that Mr. Pacheco would win his grievances and return to the Bailiff Department. Mr. Willey also stated that Mr. Dykstra told him, with Mr. Bozzelli and Mr. Murphy present, that Mr. Pacheco would not return to the Bailiff Department if his employment was reinstated. Mr. Willey did not consider Mr. Bahal’s and Mr. Dykstra’s comments as guarantees, but he and the other employee witnesses put faith in what they were told. Mr. Willey did testify in the Pacheco discipline proceeding about two incidents involving Mr. Pacheco. He found the experience stressful in part because he was treated by Union counsel as if he was on trial for an infraction. [31] In July of 2017, Mr. Dykstra advised Mr. Willey and other PBs that Mr. Pacheco would be returning to work. Mr. Dykstra and later Mr. Watson expressed their unhappiness with this turn of events. Mr. Dykstra told the PBs that they needed to make efforts to get along and to report to management any issues they might have with any future encounters with Mr. Pacheco. Although he appreciated the just cause standard and the Union’s insistence that Mr. Pacheco be returned as a PB, Mr. Willey filed his grievance because he believed that Mr. Pacheco should have been returned to work somewhere else. Mr. Willey felt that it would be very difficult to work with Mr. Pacheco after he had testified against him. [32] Because of symptoms of stress and anxiety, Mr. Willey took sick leave. For valid reasons, Mr. Willey declined an invitation to attend a voluntary mediation while he was off work. His application for WSIB benefits for mental stress was denied. Mr. Willey believed that Mr. Pacheco did return to the workplace in 2017, but had soon left the workplace for unknown reasons. After confirming that Mr. Pacheco was away from the workplace indefinitely, Mr. Willey returned to work in early October of 2017 after securing medical clearance to do so. -17 - [33] Mr. Willey indicated that Mr. Pacheco returned to work in the Bailiff Department sometime in May 2018. He was basically reviewing Standing Orders and performing maintenance work. Mr. Watson encouraged Mr. Willey and other PBs to provide him with any information that he could use against Mr. Pacheco if he engaged in misconduct. On many occasions, Mr. Watson also recommended that Mr. Willey not associate with certain members of the Bailiff Department who might leak information to Mr. Pacheco. Mr. Willey did take issue with Mr. Pacheco’s conduct on May 31, 2018. On that day, Mr. Pacheco first sat beside Mr. Willey in the lunchroom, then followed him to the Bailiff Room. Mr. Willey then went to the washroom and stayed there for some time since he felt that Mr. Pacheco was trying to intimidate him. He left the washroom to return to the Bailiff Room only to discover that Mr. Pacheco was in there. He then went to a storage room which Mr. Pacheco entered moments later. Mr. Pacheco looked inside a locker and left shortly thereafter. At the completion of his shift, Mr. Willey left Maplehurst, stopped at a gas station and while pumping gas he observed Mr. Pacheco drive into the gas station and proceed to a Tim Hortons, staring at him as he drove by. Mr. Pacheco was two hours from the completion of his shift and there were other Tim Hortons’ locations closer to Maplehurst. On the next day, Mr. Willey reported the incident to his managers and submitted a detailed OR. Mr. Willey understood that Mr. Pacheco soon thereafter went off on stress leave. An investigator contacted Mr. Willey and an interview was scheduled for July 3, 2018. The investigator cancelled the interview and Mr. Willey never heard from him again. Mr. Willy indicated that he was not advised about the status of the investigation. There is no indication that he requested information about the status of the investigation from the Employer. [34] The closing of the Bailiff Department was difficult for Mr. Willey. He viewed his transfer back to a CO position as a significant demotion. Although he recognized that the Employer has a right to manage its operations and that the decision to close the Bailiff Department was made long after it was clear that Mr. Pacheco would not be returning to the workplace, Mr. Willey believes that the decision to close the Bailiff Department was based in part on the failure of -18 - local management to adequately address the poisoned work environment created by Mr. Pacheco. [35] Mr. Derjugin became a CO on October of 1990 and was a PB from December of 2012 until the Bailiff Department closed. He attended the mediation sessions with Ms. Gauci. He also stated that the Employer did not apply a systemic response to address the problems in the Bailiff Department. After he heard about the incident between Mr. Pacheco and Mr. Powis that led to Mr. Pacheco’s termination, he became more aware of the potential for conflict with Mr. Pacheco. [36] Mr. Derjugin worked with Mr. Pacheco for a shift in early 2016 after Mr. Pacheco had returned from a suspension. Mr. Pacheco ignored him for the entire shift, was silent when Mr. Derjugin attempted to converse with him and took time performing his tasks to aggregate him. In an encounter outside the locker room, Mr. Pacheco followed him and stated that Mr. Derjugin was going to suck up to a manager. Although his preference was not to work with Mr. Pacheco, Mr. Derjugin estimated that he did about one week of trips with him every six months. In the presence of other PBs in the morning, Mr. Pacheco often made derogatory comments about managers and anyone who spoke with managers. For example, he called PBs sheep, called Mr. Watson a moron and accused RTCs of manipulating overtime assignments. From others, Mr. Derjugin understood that Mr. Pacheco was aggressive in questioning PBs about their work day in order to get them in trouble. Although he did not aggressively question him, Mr. Derjugin indicated that Mr. Pacheco made him feel like he was a criminal under constant surveillance. In stating that Mr. Pacheco poisoned his work environment, Mr. Derjugin meant that the workplace was not ideal given the conduct of Mr. Pacheco. There is no indication that Mr. Derjugin related any of these matters or his concerns about Mr. Pacheco to management prior to Mr. Pacheco’s discharge in March of 2016. Subsequent to Mr. Pacheco’s discharge and his return to the Bailiff Department, Mr. Derjugin never encountered Mr. Pacheco in the workplace or anywhere else again. -19 - [37] Mr. Derjugin was shocked when he was informed by RTCs that the Employer was returning Mr. Pacheco to work as a PB. Mr. Watson told him that Mr. Pacheco’s return was a formality and that he would not remain in the workplace for long. He started experiencing symptoms related to anxiety and stress at the prospect of Mr. Pacheco’s return. Mr. Derjugin indicated that he had no direct conflict with and had not been physically threatened by Mr. Pacheco. During this time he expressed his concerns to managers about Mr. Pacheco. They told him they would see what they could do and the result was that he was never assigned to take a trip again with Mr. Pacheco. Mr. Derjugin was off on sick leave from July 17 to October 2, 2017. He reached out to his managers when it seemed in December of 2017 that he might have to work with Mr. Pacheco. His managers assured him that the necessary steps would be taken if Mr. Pacheco returned to work. Mr. Pacheco did not return to work in that time frame. Mr. Derjugin indicated that his return to Maplehurst as a CO when the Bailiff Department closed was a significant demotion for him. [38] Mr. Bryant became a CO in December of 2008 and a full-time PB in 2015. He completed RTC training in 2016 which permitted him to perform RTC duties on an as needed basis. He did not have a close working relationship with Mr. Pacheco and only saw him around the Bailiff Department a handful of times. He never went on a trip with Mr. Pacheco. In 2016, he and another PB became Health and Safety Representatives for the Bailiff Department after a vote among their peers. Since such representatives were typically nominated by the Local President, Mr. Pacheco took issue with their appointments. [39] Mr. Pacheco contacted Mr. Bryant a few times about health and safety matters. On November 30, 2016, when he was absent from work due his discharge, Mr. Pacheco sent an email from his personal account to Mr. Bryant asking about health and safety matters and indicating that he would be contacting the Ministry of Labour (“MOL”). At the end of the email Mr. Pacheco apologized for using Mr. Bryant’s work email to discuss union matters. Mr. Bryant believed that Mr. Pacheco was attempting to obtain his personal information and was trying to intimidate him. After forwarding Mr. Pacheco’s email to Mr. Watson, -20 - Mr. Watson advised him not to respond or discuss anything with Mr. Pacheco. In January of 2017, the MOL came to the Bailiff Department to address an anonymous complaint. The Field Visit Report found no violations and no order was issued. Another anonymous compliant was made to the MOL with similar allegations near the end of 2017 with the same result in those Field Visit Reports. Mr. Bryant felt that the complaints were a direct attack on him and an attempt to undermine the trust of the PBs in their Health and Safety Representatives which in turn contributed to a toxic work environment. [40] After the Employer advised the PBs that Mr. Pacheco was returning to work in the Bailiff Department, Mr. Bryant was one of the PBs that did not go off on sick leave. He and other RTCs felt obliged to sign up for and perform a considerable about of overtime during the summer of 2017 due a shortage of staff. On more than one occasion, Mr. Watson told him that there were rumours that the Bailiff Department could be shut down so he and others volunteered to do as much work as possible to keep the unit together. During this period of time Mr. Bryant’s health suffered considerably. He indicated that he suffered stress and hardship at work and at home due the Employer’s inability to resolve the poisoned work environment. During informal discussions, Mr. Watson and Ms. Fernandes told him that they were trying to move forward with mediation to resolve issues. Mr. Bryant felt that the situation was too far gone for mediation. He felt stress at the prospect of having to work as an RTC with Mr. Pacheco. When Mr. Pacheco did return to work, Mr. Bryant had to deal with him every day and did so on a professional basis. Mr. Pacheco returned to work for about a month, essentially performing vehicle maintenance. Mr. Pacheco did not direct any threats at Mr. Bryant. Mr. Pacheco asked him once to refresh him on office duties. After advising her that he did not feel comfortable training Mr. Pacheco, Ms. Fernandes reassured him that he was not required to train him. [41] On March 5, 2018, Mr. Pacheco asked Mr. Bryant for his personal email address because he did not want to use the Employer’s email or cell phone to communicate about health and safety matters and union business. Mr. Bryant simply advised Mr. Pacheco by email that he wanted health and safety matters -21 - to be sent to his work email. Since he felt harassed and targeted by Mr. Pacheco, Mr. Bryant set out his concerns in an OR to Ms. Fernandes. Mr. Bryant indicated that Ms. Fernandes did not respond to his OR. On May 24, 2018, while in the computer room used by PBs, Mr. Pacheco at one point approached him from behind and made vibrating noises from his mouth. This made Mr. Bryant uncomfortable and he left the room. He submitted an OR to Mr. Dykstra the next day, but did not get a reply from him. However, an investigator contacted him, told him that a WDHP investigation had been initiated and that she did not think that there were grounds for a complaint. On February 20, 2019, Mr. Pacheco again raised a concern with Mr. Bryant about using the Employer’s email for union business. Mr. Bryant indicated that spoke to management about this and no action was taken to the best of his knowledge. [42] For about a month before the Bailiff Department closed, Mr. Bryant indicated that Ms. J. Cece, Deputy Regional Director, attended at the office almost every day. She indicated that she was to present options to the corporate office for how the Bailiff Department could operate and she asked the RTCs and PBs for their opinions on a number of questions. She told them that she was going to fight to keep the PBs together. She later told them that the corporate office was not interested in any of her suggestions. Mr. Bryant considered his return to Maplehurst as a CO to be a significant demotion. [43] Mr. Reis became a CO in November of 1991 and a member of the Bailiff Department in October of 2015. It appears that Mr. Reis did not interact with Mr. Pacheco until after the Employer returned Mr. Pacheco to the Bailiff Department. He was not assigned any trips with Mr. Pacheco because he was not one of his partners. When Mr. Reis saw him in the Bailiff Department, Mr. Pacheco would stop and stare at him as he walked by. Mr. Reis indicated that the managers warned the PBs to ignore Mr. Pacheco upon his return to work. Mr. Watson told the PBs to watch themselves and be careful when Mr. Pacheco came back to work because he will try to cause trouble or he will try to record them on his phone. -22 - [44] In the Fall of 2017, Mr. Pacheco followed Mr. Reis from the computer room, through the locker room to the washroom and then to the change room as Mr. Reis changed. During the ten minute interaction Mr. Pacheco was silent and just stared at him. Mr. Reis ignored him. Mr. Reis believed that Mr. Pacheco wanted to engage him in a confrontation. He reported the incident to Mr. Watson immediately and was asked if Mr. Pacheco had said anything threatening. When he told him that he did not, Mr. Watson told him to go on his trip and to tell him if Mr. Pacheco tried anything else. Since nothing else occurred that day, it appears that Mr. Reis did not raise the matter again with Mr. Watson. Mr. Reis did not write an OR on the incident, nor did Mr. Watson ask him to write one. [45] Mr. Reis indicated that Mr. Pacheco often tried to gather “dirt” on PBs by asking about their workday. After one trip in the fall of 2016, Mr. Pacheco asked him if he had shown his partner all the restaurants along the route to discover whether they had made unnecessary stops. Mr. Reis indicated that when he was not on the road, lunch conversations with managers disclosed that they were aware of the problems created by Mr. Pacheco. While short staffed during the summer of 2017, Mr. Reis was worried that he might be scheduled to work with Mr. Pacheco, but this never happened. Mr. Reis backfilled as an RTC on six occasions when some full-time RTCs were on sick leave. He found this stressful because he did not have a lot of experience doing this work. Mr. Reis’ insomnia issues and anxiety increased when Mr. Pacheco returned to the Bailiff Department because he was always wondering what Mr. Pacheco would do next. [46] Mr. Reis indicated that Ms. Cece did spend a lot of time in the Bailiff Department before it closed and that she never discussed the Employer’s plans for the unit with him. He also indicated that he had a good working relationship with his managers. Mr. Reis became a CO at Maplehurst when the Bailiff Department closed. He also described this development as a significant demotion for his career. -23 - [47] Mr. Murphy became a CO in November of 1977. He became a PB in 1981 and an RTC in 2004. Once he became an RTC, Mr. Murphy seldom had contact with Mr. Pacheco on the road. Mr. Murphy retired on May 31, 2019. [48] Mr. Pacheco often complained that Mr. Murphy was not providing him as many overtime opportunities as others. Mr. Murphy believed that there was no basis for these complaints. On one occasion, after being unable to reach Mr. Pacheco on his work cell phone, Mr. Murphy called his home and was advised by his wife that he was not there. On the following day Mr. Pacheco accused Mr. Murphy of harassing his wife and formally complained about this to Mr. Watson. Mr. Pacheco made formal complaints to upper management and Mr. Murphy believes that he also complained to the MOL about the distribution overtime by Mr. Murphy. No wrongdoing was found in the investigations that resulted from these complaints. [49] Mr. Murphy also attended the workplace mediations that were conducted by Ms. Gauci. At the July 2015 meeting with management present, Mr. Murphy spoke to a matter with a raised voice and Mr. Watson appeared to caution him by calling his name. Mr. Pacheco prepared an OR indicating that Mr. Murphy was disrespectful to Mr. Watson. Mr. Murphy apologized to Mr. Watson even though both were of the view that he had not been disrespectful and that this was an example of how Mr. Pacheco tried to create conflict in the Bailiff Department. Mr. Murphy also indicated that he was unaware of any systemic responses from the Employer after Ms. Gauci released her reports. [50] Mr. Murphy indicated that Mr. Pacheco would often sneak behind a PB and “blow a raspberry” to startle them. There is no indication from Mr. Murphy that anyone complained to management about this behaviour prior to Mr. Pacheco’s discharge. Following Mr. Pacheco’s reinstatement and return to the workplace, PBs did report this conduct to management. After management called him into the office to address the issue, Mr. Murphy indicated that Mr. Pacheco complained to management that he was the one that was being picked on. Mr. Murphy indicated that he had a very good relationship with his managers and he spoke to them often about his concerns. -24 - [51] Mr. Murphy testified about certain incidents involving Mr. Pacheco in which Mr. Murphy either made a complaint to management or filed an OR. After describing one incident involving Mr. Powis, Mr. Murphy indicated that management did nothing to resolve the matter. He also completed an OR about an incident on May 25, 2015, in which he indicated that Mr. Pacheco was snooping for information. In relation to this incident Mr. Murphy also indicated that management made no efforts to investigate the allegations and took no steps to remedy the situation. However, both of these incidents and one other matter were thoroughly investigated by the Employer and led to significant discipline against Mr. Pacheco. These were also the matters which Mr. Murphy testified about in the Pacheco discipline proceeding and yet he could not recall that he had testified about them. [52] Mr. Murphy was served with a summons to testify in the Pacheco discipline proceedings. He clearly did not want to testify against Mr. Pacheco because he feared there would be repercussions for testifying against a co-worker. Although he could not recall exactly how he said it, Mr. Murphy stated that Mr. Bahal told him that Mr. Pacheco would not be reinstated and, if he was, it would not be to the Bailiff Department. He also indicated that Mr. Dykstra told him the same thing. During his testimony at the Pacheco discipline proceeding, Union counsel had suggested to him that he had been mistreating Mr. Pacheco when it came to the distribution of overtime. [53] Mr. Murphy was upset and distraught when he was told by management that Mr. Pacheco was being returned to the Bailiff Department. He was concerned Mr. Pacheco would act in a way that negatively impacted his pension by causing him to do something that would lead to his own dismissal. As a result of stress, Mr. Murphy was on sick leave from August to December of 2017. There is no indication that he had any negative encounters with Mr. Pacheco after Mr. Pacheco’s was reinstated and returned to the Bailiff Department. [54] Ms. Bartlett became a CO in August of 1985. She became a PB in October of 2004 and continued in that position until the closure of the Bailiff Department in September of 2019. Before the change to switching partners, her assigned -25 - partner was Mr. Powis. Ms. Bartlett maintains that Mr. Pacheco bullied her and discriminated against her on the basis of her sex and gender. Many of the incidents she referred to in this regard took place before 2015, when Mr. Quinn was the Manager of the Bailiff Department. Ms. Bartlett indicated that Mr. Pacheco made a point of ignoring her. He would not respond when she greeted him in the common room at the start of the day and on other occasions. When they worked together, he did not respond when she asked him direct questions. She feared for her safety because of his driving on the few instances they did trips together. She spoke to Mr. Quinn and an RTC about her concerns and trips were changed so that she would not have to work with Mr. Pacheco. Mr. Pacheco purposely bumped into her three or four times when they were walking in the Bailiff Department. Mr. Pacheco would undress in front of her in the Bailiff’s locker room, despite her obvious discomfort. Mr. Powis reported the locker room matter to the Employer and steps were taken that did not please Ms. Bartlett since it separated her from other PBs. Ms. Bartlett grieved what can be described as the locker room issue and she indicated that nothing really happened with her grievance. Given that these events had occurred a long time ago, it is not surprising that Ms. Bartlett had some difficulty recalling what happened with her grievance. At the start of the next hearing day, I was advised that the parties had agreed that I not consider the evidence of Ms. Bartlett on the locker room issue. What Ms. Bartlett had forgotten is that she had filed seven grievances that were settled by a Memorandum of Settlement dated June 14, 2013. One of the grievances related to the locker room issue. The settlement filed with me does not refer to Mr. Pacheco specifically. One of the terms of the settlement is that Ms. Bartlett will not be partnered with Mr. P. Hamel, another PB. [55] Ms. Bartlett asserted that she experienced mental distress because of Mr. Pacheco’s bullying. She took medication to assist with her anxiety and sleeping problems. She went off on sick leave for fours months due to Mr. Pacheco’s behaviour. Upon her return she had candid conversations with Mr. Quinn in which she indicated that she was not comfortable working with Mr. Pacheco. She indicated that she would call in sick if she had to work with him. Mr. Quinn -26 - assured her that she would no longer have to work with Mr. Pacheco. Still in 2014, before Mr. Dykstra became Manager, Ms. Bartlett accepted the offer of an acting RTC position at Lindsay. Her encounters with Mr. Pacheco while she was at Lindsay were minimal, if any. About a year after she had moved, the Lindsay Bailiff location was shut down and she returned to Maplehurst in 2015 where Mr. Dykstra and Mr. Watson were now her managers. She still was not required to take trips with Mr. Pacheco. [56] Ms. Bartlett attended the mediation sessions with Ms. Gauci. Mr. Bozzelli is likely correct in his belief that when Ms. Gauci made reference in her first report to “two main conflicts involving three individuals”, she was referring to Mr. Pacheco, Ms. Bartlett and Mr. Powis. Ms. Bartlett also held the view that the Employer did not make any changes to the workplace dynamic following the mediations. [57] When she was advised in June of 2017 that Mr. Pacheco would be returning to the Bailiff Department after his discharge in March of 2016, Ms. Bartlett’s anxiety and sleeping problems resurfaced. Ms. Bartlett was off on sick leave from July 17 until October 25, 2017. She applied for WSIB benefits for mental stress. Her claim was denied, as was her appeal. Ms. Bartlett did not work with Mr. Pacheco on a trip or otherwise after he had been reinstated to the Bailiff Department. [58] Mr. Hintz became a CO in February of 2001. He backfilled in the Bailiff Department from 2011 to 2015 and he became a full-time PB during the Fall of 2015. He worked sporadically with Mr. Pacheco when backfilling. Mr. Pacheco was never his partner after he became a full-time PB. Mr. Hintz believed that Mr. Pacheco often surveilled him with the intent of accusing him of time fraud. He referred to two incidents in this regard. On January 19, 2016, when he encountered Mr. Pacheco in the locker room, Mr. Pacheco asked him a number of questions regarding his start time that left him believing that he was being interrogated. On the following day, after returning from a trip with his partner and while in the Bailiff Office, Mr. Pacheco commented that they had made really good time since they had completed their trip already. When another PB -27 - came into the area, Mr. Pacheco commented that another trip had been completed early. Mr. Hintz left to go to the locker room where he proceeded to book a hotel room for an out of town trip. Mr. Pacheco entered the locker room and simply wandered around. Mr. Hintz believed that Mr. Pacheco only came into the locker room to make him uncomfortable. Upon telling Mr. Watson about these interactions with Mr. Pacheco, he was asked to set them out in an OR, which he did on January 21, 2016. Mr. Hintz indicated that the Employer did not speak to him about the matters described in his OR. [59] Mr. Hintz did not take sick leave when the Employer announced that Mr. Pacheco would be returning to the Bailiff Department. He worked 17 days filling in as an RTC when other RTCs were absent. Given his inexperience in this position, he found the work stressful. He worked a considerable amount of overtime which had an impact on his family life. He agreed to perform the RTC work and to work the overtime in order to ensure that the Bailiff Department would continue to operate. [60] Mr. Olivierre became a CO in September of 1997 at the Don Jail. Mr. Pacheco also worked at the Don Jail at the time and they were friends. He did a few secondments with the Bailiff Department between 1999 and 2006 and became a full-time PB in 2007. After acting as an RTC, he became a full-time RTC in 2015. Mr. Olivierre and other PBs understood that Mr. Pacheco did not compete for a PB position, but was placed in the Bailiff Department through a grievance process. Mr. Olivierre did not dispute Employer counsel’s assertion that the Employer’s hands were tied on the question of what position Mr. Pacheco should be reinstated to given that the GSB had ordered the Employer to accommodate Mr. Pacheco permanently in a PB position. [61] Mr. Olivierre indicated that Mr. Pacheco had always demonstrated anti- management attitudes. He also indicated that, at some point, Mr. Pacheco turned his anger on his co-workers and started to cause conflict in the Bailiff Department. In the summer of 2014 and again in the fall of 2014, Mr. Pacheco made unfounded complaints to management that Mr. Olivierre had improperly manipulated overtime hours. Mr. Pacheco had also accused Mr. Olivierre of -28 - fraud on several occasions relating to meal money and meal breaks. Management conducted several audits and determined that there had not been any wrongdoing. Mr. Olivierre asserted that the Employer did nothing to address these unfounded complaints and allegations. Mr. Pacheco often asked him and other PBs specific questions about the workday of specific PBs and Mr. Olivierre suspected that did this because he was fishing for information to get PBs in trouble. Mr. Olivierre indicated that he was not keen to complain about a union member and that making a complaint against a union member would result in a short career in the Corrections. When asked in cross-examination if complaints about Mr. Pacheco had been made to the Union, Mr. Olivierre stated that the Union basically had indicated that it could not do anything. [62] Mr. Olivierre attended the mediation sessions with Ms. Gauci. Consistent with the views of other PBs and RTCs, he believed that the Employer did not make any changes to the workplace to address the outstanding issues. He was not told why the Employer brought on additional managers. He indicated that there was always tension and discomfort when Mr. Pacheco was in the Bailiff Department. [63] Although he had suspicions that Mr. Pacheco had made recordings of conversations in the workplace, this was confirmed by the Employer around the same time it had announced that Mr. Pacheco would be returning to the Bailiff Department. Mr. Olivierre’s mental health was affected by the prospect of Mr. Pacheco’s return. He went off on sick leave from the end of June until the end of October of 2017. His application for WSIB benefits was denied and his appeal of the decision was denied. Mr. Olivierre had no further contact with Mr. Pacheco at the workplace after the Employer announced that he would be reinstated. Subsequent to the Employer announcing that the Bailiff Department would be closed, Mr. Olivierre indicated that Ms. Cece spent time at the Bailiff office in an effort to keep the operation running. She indicated that Mr. Pitfield was not fond of the Bailiff Department and that senior management did not accept her suggestions for saving the Bailiff Department. Once the Bailiff Department closed, Mr. Olivierre returned to an institution to work as a CO. -29 - [64] Mr. Scaduto became a CO in June of 2008 and became a PB in the Bailiff Department in October of 2016 at a time when Mr. Pacheco was not in the workplace due to the termination of his employment. He learned from RTOs Bozzelli, Murphy and Olivierre that Mr. Pacheco was the source of interpersonal conflict in the workplace and that he had secretly recorded other PBs. He indicated that Mr. Watson told him that he did not believe that Mr. Pacheco would return to the Bailiff Department. [65] Mr. Scaduto indicated that, with the return of Mr. Pacheco and the effect of this announcement on employees, the Bailiff Department became severely understaffed in the summer of 2017. Following a memo from Mr. Dykstra indicating that audio recordings of staff was prohibited, Mr. Scaduto was advised by other PBs that Mr. Pacheco was the only one who had recorded other PBs. This knowledge contributed to Mr. Scaduto’s anxiety about Mr. Pacheco’s reinstatement. He kept his distance from Mr. Pacheco when he returned in order to avoid conflict. On his return to the workplace, Mr. Pacheco did not go on trips and instead he spent time on the computer in the Bailiff Room. [66] Although he never worked with Pacheco directly, his negative impact on the workplace caused Mr. Scaduto anxiety and stress. Mr. Scaduto also worked as an acting RTC for four months when the regular RTCs were on sick leave. He voluntarily worked extra hours on overtime to avoid the possible shut down of the Bailiff Department. Ms. Fernandes was aware of the work situation and had asked him to do his best and to make it work. Working so many hours at a position that he was not properly trained for caused him stress and hardship at work and at home. At a meeting of PBs and RTCs in the summer of 2019, the staff was advised by management that the Bailiff Department was being shut down. Mr. Scaduto also felt that his return to work as a CO at Maplehurst was a demotion. [67] Mr. Dykstra and Mr. Watson both testified about how the Employer handled complaints from employees. Union counsel covered this subject quite extensively during his cross-examination of these witnesses. Mr. Dykstra and -30 - Mr. Watson indicated that they were familiar with the WDHP Policy and the responsibilities of managers under that Policy. A review of their testimony as a whole reveals that they would pursue formal and verbal complaints that were brought to their attention. How they would pursue a complaint depended on the nature of the complaint and its seriousness. Mr. Watson indicated that he would often ask an employee to set out the complaint in an OR. Mr. Dykstra and Mr. Watson were quite emphatic in stating that they acted on any formal complaint about harassment and discrimination that an employee made against Mr. Pacheco. They were asked by Union counsel about a number of the incidents that the grievors testified about as summarized in the preceding paragraphs. It was often the case that they could not recall or they had a vague recollection of some incidents and how they responded to them, given the passage of time. I will comment further on their testimony in this regard when I address the merits of the grievances. [68] Counsel made extensive submissions on the issues in this proceeding. I find it unnecessary to review their submissions or the decisions I was referred to in detail. I will make reference to some of the submissions during the course of setting out my reasons. In support of the Union’s submissions on the merits, Union counsel referred me to the following decisions: Re Toronto Transit Commission and ATU (Stina) (2004), 132 L.A.C. (4th) 225 (Shime); OPSEU (Fortin) v. Ontario (Ministry of Finance), 2017 CarswellOnt 21771 (ON GSB Luborsky); OPSEU (Plouffe) v. Ontario (Solicitor General), 2021 CanLII 127097 (ON GSB Harris); OPSEU (Ranger) v. Ontario (Ministry of Community Safety & Correctional Services), 2010 CarswellOnt 4779 (Leighton); Re Toronto Community Housing Corp. and OPSEU (2015), 253 L.A.C. (4th) 135 (Nairn); OPSEU (Groves) v. Ontario (Ministry of Community Safety and Correctional Services), 2014 CanLII 70079 (ON GSB Mikus); OPSEU (Pacheco) v. Ontario (Ministry of Community Safety and Correctional Services), 2017 CanLII 52721 (ON GSB Petryshen); OPSEU (Press) v. Ontario (Ministry of Health and Long- Term Care), 2007 CanLII 46151 (ON GSB Mikus); Laskowska v. Marineland of Canada Inc., 2005 HRTO 30; Nelson v. Lakehead University, 2008 HRTO 41; Re Algoma Steel Corp and U.S.W.A. (1968), 19 L.A.C. 236 (Weiler); OPSEU, -31 - Local 148 (Elley) v. Chatam-Kent Children’s Services, 2019 CarswellOnt 13611 (Johnston); SEIU Local 1 (Bisram) v. North York General Hospital, 2014 CarswellOnt 16154 (Surdykowski); Re Metro Ontario Inc. and UFCW, Locals 175 and 633 (2017), 278 L.A.C. (4th) 267 (Slotnick); and, AMAPCEO (Grievor) v. Ontario (Ministry of the Attorney General), 2021 CanLII 58440 (ON GSB McLean). Counsel also referred me to Brown & Beatty, Canadian Labour Arbitration, 5th Edition, section 4.39 Management Rights. [69] In addition to OPSEU (Pacheco) v. Ontario (Ministry of Community Safety and Correctional Services), supra, Employer counsel relied on the following decisions: OPSEU (Tardiel et al.) and Ministry of Community Safety and Correctional Services (2009), GSB Nos. 2005-1443 et al. (Albertyn); John Pacheco v. OPSEU, [2020] PLRB No. 1414-20-U; OPSEU (Grievor) and Ministry of Government and Consumer Services (2021), GSB No. 2020-1882 (Gee); Bazger and Ministry of Community Safety and Correctional Services (2018), PSGB No. P-2014-2859 (O’Neil); OPSEU (Dobroff et al.) and Ministry of the Environment (2008), GSB Nos. 2003-0905 et al. (Dissanayake); and, OPSEU (Grifferty) and Ministry of Government Services (2012), GSB No. 2010- 2240 (Devins). [70] In addition to certain provisions of the WDHP Policy, counsel made reference to the following relevant contractual and statutory provisions: Collective Agreement Article 2 – Management Rights 2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workplace, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject. -32 - Article 3 – No Discrimination/Employment Equity 3.1 There shall be no discrimination practiced by means of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability, as defined in section 10(1) of the Ontario Human Rights Code (OHRC). … 3.3 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. Workplace harassment is engaging in a course of vexatious comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome. … Article 9 – Health and Safety and Video Display Terminals 9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. Occupational Health and Safety Act Definitions 1. (1) In this Act, … “workplace harassment” means (a) Engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. Duties of employers … 25 (2) Without limiting the strict duty imposed by subsection (1), an employer shall, -33 - (h) take every precaution reasonable in the circumstances for the protection of a worker; Ontario Human Rights Code Employment 5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. Harassment in employment 5. (2) Every person who is an employee has a right to freedom from harassment in the workplace by an employee or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. Definitions re: Parts I and II … “harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome; [71] I will first address the Union’s contention that the Employer breached the management rights clause and article 9 of the Collective Agreement and section 25 (2) (h) of the OHSA when it decided to return Mr. Pacheco to his home position in the Bailiff Department in June of 2017. The Union argued that this decision was an unreasonable exercise of the Employer’s right to manage in the circumstances. Union counsel noted that the Union was not suggesting that the Employer’s decision to return Mr. Pacheco to the Bailiff Department was malicious, egregious or made in bad faith. The Union also argued that in making this decision the Employer failed in its duty to take every precaution reasonable in the circumstances for the protection of the grievors. Although Employer counsel argued that it was not appropriate to assess management’s right to return Mr. Pacheco to the Bailiff Department on the basis of reasonableness, I am prepared in this instance to assume that reasonableness is the standard to apply in this instance when considering the related questions -34 - of the exercise of a management right and whether the Employer contravened article 9 of the Collective Agreement and section 25 (2) (h) of the OHSA. [72] Employer counsel also made the following three submissions. He argued that the Employer had no choice but to return Mr. Pacheco to the Bailiff Department given the GSB’s decision directing that his home position was to be that of a PB. He also argued that the decisions made by the Employer in relation to the Pacheco discipline proceeding were protected by litigation privilege. He also appeared to go so far as to suggest that the Union’s position on Mr. Pacheco’s return to the Bailiff Department should be rejected because of the Union’s unyielding stance that Mr. Pacheco had to be returned to the Bailiff Department in the Pacheco discipline proceeding. Having regard to my view about whether the Employer’s conduct satisfied the reasonableness test, I determined that it was unnecessary to address these submissions. [73] The evidence demonstrates that the Employer’s decision to reinstate and return Mr. Pacheco to the Bailiff Department in June of 2017 was based on a number of factors. In essence, given the evidence presented in the Pacheco discipline proceeding as of June of 2017, the Employer became less convinced that it would ultimately be successful in preventing Mr. Pacheco’s reinstatement to employment and it was concerned that the length of the proceeding might result in the payment of a number of years of compensation to Mr. Pacheco. Simply put, the Employer made its decision to reinstate Mr. Pacheco in June of 2017 based on its view of the labour relations reality at the time. Whether the Employer was correct in its view of that reality is not for me to decide. Given its consideration of the relevant factors, there is no basis for concluding that the Employer’s decision to reinstate Mr. Pacheco to employment was unreasonable in the circumstances. The main objection of the grievors and the Union however, was not that the Employer had decided to reinstate Mr. Pacheco, but that it had decided to return him to the Bailiff Department. [74] It is also difficult in the circumstances to conclude that it was unreasonable for the Employer to return Mr. Pacheco to the Bailiff Department. After all, as directed by the GSB, Mr. Pacheco occupied a PB position as his home position -35 - as a permanent accommodation. And the Union had insisted throughout the Pacheco discipline proceeding that Mr. Pacheco had to be reinstated to his position in the Bailiff Department. Although the Employer intended to argue that if the GSB ordered Mr. Pacheco to be reinstated, that he be placed in a position in an institution and not in the Bailiff Department, there was no guarantee that this argument would have been successful. Therefore, in my view, even if the Employer had the option not to return Mr. Pacheco to the Bailiff Department, its decision to return him to his home position was not an unreasonable exercise of its right to manage having regard to all of the circumstances. [75] I am also satisfied that the Union has failed to establish that the Employer’s decision to return Mr. Pacheco to the Bailiff Department contravened article 9 of the Collective Agreement and section 25 (2) (h) of the OHSA. In interpreting these provisions, often in a corrections context, the GSB has held that an assessment of the degree of risk is important when determining what is reasonable. An employer is obliged to take reasonable precautions, but it is not required to protect against every possible risk. Although the Employer in the instant case would have been aware that many of the employees did not want to have Mr. Pacheco in the Bailiff Department, there was no objective basis for it to foresee that the mere announcement of his return would affect the mental health of the grievors in the way that it did. There was no reason for management to believe that the reasonable exercise of its right to manage Mr. Pacheco by returning him to his home position would create such a strong reaction from the grievors. The Employer’s decision was not only to return Mr. Pacheco to the Bailiff Department, but at the same time to carefully monitor him in the workplace and to address any inappropriate conduct on his part that was brought to management’s attention. In balancing the interests of the Employer and the health and safety interests of the grievors, I am not prepared to conclude in these circumstances that the Employer had failed to take reasonable provisions for the health and safety of the grievors when it returned Mr. Pacheco to his home position in the Bailiff Department. -36 - [76] Union counsel made extensive submissions on remedy assuming that the Union would be successful in its claim that the Employer’s decision to return Mr. Pacheco to the Bailiff Department contravened the Collective Agreement and the OSHA. Since the Union has not succeeded with this claim, it is unnecessary to address the remedial issue. [77] Before turning to the next matter, I will comment briefly on the dispute over what the employee witnesses who were summonsed to testify at the Pacheco discipline proceedings were told about his return to the workplace. I appreciate that this matter is not particularly relevant to the issues in dispute, but it did appear to be of some importance to the witnesses who testified in this proceeding. [78] Mr. Bozzelli, Mr. Willey and Mr. Murphy were concerned about testifying for the Employer, undoubtedly in part because of the perception that such conduct contravened the code of silence that persists in corrections. And it is true the Employer appreciated that their evidence was necessary to establish a basis for some of the discipline issued to Mr. Pacheco. I have no doubt that Mr. Bozzelli, Mr. Willey and Mr. Murphy honestly believed that they had received some indication from Mr. Dykstra and Mr. Bahal that Mr. Pacheco would not return to the Bailiff Department. However, after considering the evidence on this point, I find it improbable that these witnesses were misled as alleged. Mr. Dykstra and Mr. Bahal, in particular, have considerable experience in dealing with discipline matters at the GSB. Given the stage of the Pacheco discipline proceedings when the statements attributed to them were made and their knowledge that no outcome could be certain, it is very unlikely that they would suggest to the employee witnesses that Mr. Pacheco would not return to the workplace. Consistent with Mr. Dykstra’s and Mr. Bahal’s testimony on this point, and Mr. Willey’s comment that he did not interpret their statements as a guarantee, I find it more likely than not that they did not make statements to Mr. Bozzelli, Mr. Willey and Mr. Murphy to the effect that Mr. Pacheco would not be returning to the Bailiff Department. -37 - [79] I will now address the Union’s claim that the Employer had failed to adequately address the harassing and bullying conduct of Mr. Pacheco against each of the grievors and his discriminatory conduct against Ms. Bartlett. The Union took the position that the Employer was informed or otherwise became aware of such inappropriate conduct by Mr. Pacheco, but did not respond at all in some instances or did not take appropriate steps to address his conduct. It argued that the Employer did not investigate some complaints and inadequately investigated others. It also argued that the Employer did not take the necessary steps under its own WDHP Policy to address the conduct of Mr. Pacheco. The Union acknowledged that the Employer did take some steps to address the harassing conduct of Mr. Pacheco, as evidenced by the discipline that it issued to him. In essence, however, it argued that the Employer did not do enough in the circumstances to address his harassing conduct against each grievor, and the discriminatory conduct against Ms. Bartlett, thereby contributing to a poisoned work environment, which in the Union’s view was a factor in the Employer’s decision to close the Bailiff Department. With respect to this claim, the Employer again takes the position that it responded appropriately when it was made aware of any misconduct by Mr. Pacheco and that it did not contravene any of its Collective Agreement or statutory obligations in relation to this Union claim. [80] The Employer has an obligation to provide its employees with a healthy and safe workplace that is free from discrimination and workplace harassment. As the relevant decisions referred to me indicate, the onus is on the Union to establish that the Employer had failed to take appropriate steps to address the complaints from each grievor about the harassing and discriminating conduct of Mr. Pacheco. It is quite clear that the Employer is not strictly liable for any inappropriate conduct by Mr. Pacheco and that the appropriate standard for assessing how the Employer responded to any complaints is the standard of reasonableness. As noted in Re Toronto Community Housing Corp. and OPSEU, supra, at paragraph 298, “The standard is one of reasonableness, not perfection, nor what may seem reasonable in hindsight... Reasonableness will invariably depend on an assessment of all of the circumstances.” -38 - [81] The testimony of the grievors described many features that were quite similar in nature. I will comment first on some of these similar matters before addressing the merits of each grievance. [82] Many of the incidents concerning Mr. Pacheco occurred well before the grievors filed their 2017 grievances. Perhaps with the exception of Ms. Bartlett, the grievors did not challenge the way the Employer had dealt with or had not dealt with their concerns about Mr. Pacheco until the Employer announced in June of 2007 that Mr. Pacheco would be returned to the Bailiff Department. And when they filed their grievances in 2017 alleging that the Employer had not provided them with a workplace free from discrimination and harassment, Mr. Pacheco had not been an active employee for at least 15 months. The Employer would not have been aware of the details of their grievances until the Union filed its particulars in January of 2020, more than two years after the grievances had been filed. The Employer did not raise a timeliness objection to the claims made by the grievors. However, in my view, these features of this case are important to keep in mind when assessing the testimony of the grievors and the ability of the Employer witnesses to respond to the matters referred to in the testimony of the grievors. As noted previously, the passage of time would make it difficult for the grievors and for the Employer witnesses to recall events clearly or to recall events at all. I did get the sense in this case that the grievors only raised in 2017 the issue of how the Employer handled complaints of Mr. Pacheco’s alleged discrimination and workplace harassment because they were very upset about the Employer’s decision to return Mr. Pacheco to the Bailiff Department. If the Employer had not returned to the Bailiff Department, it appears very unlikely that the grievors would have taken issue with how the Employer had addressed their concerns about Mr. Pacheco. [83] Consistent with the code of silence, many of the grievors were reluctant to complain to management about the conduct of Mr. Pacheco. Many testified about their problematic interactions with Mr. Pacheco, but did not tell management about them. It goes without saying that the Employer cannot be at fault for not addressing improper conduct between employees if the Employer -39 - is not made aware of the conduct. Many grievors indicated that management had told them that it was aware of the difficulties created by Mr. Pacheco and expected that this was a sufficient basis for criticism of management’s inaction. There is no doubt that management was aware that Mr. Pacheco and others had interpersonal difficulties with some PBs and RTCs. This after all was why it retained the assistance of CMI and Ms. Gauci to conduct the mediation sessions. However, it is not sufficient for a grievor to rely on comments by management that they were aware of the problems created by Mr. Pacheco without being more specific about what precise conduct management was aware of, particularly when the Employer has indicated that it responded appropriately when complaints about Mr. Pacheco were brought to its attention. I agree with Employer counsel’s submission that each grievor in this proceeding was obliged to provide direct information about discriminatory or harassing behaviour by Mr. Pacheco directed at him or her, along with the indication that management was informed about such behaviour. [84] Many of the grievors described conduct by Mr. Pacheco that would be difficult to characterize objectively as harassing or discriminatory in nature. For example, a number of grievors testified that Mr. Pacheco often asked about the details of trips made by PBs and the number of stops they had made. Some grievors indicated that Mr. Pacheco would remain silent at times during trips. Given his role as a union supporter and his views on how the Bailiff Department was managed, many grievors indicated that Mr. Pacheco made allegations to the Employer and others about fraud, overtime distribution and health and safety matters. The allegations were investigated by the Employer or by the MOL and were found to have no merit. It is not surprising that the PBs and RTCs experiencing this behaviour would find it displeasing. On the matter of the complaints in particular, an employee has a right to make such complaints and unless they are entirely frivolous, the Employer or the MOL was obliged to investigate them. In dealing with an employee who was committed to making such complaints, the Employer had no other option but to ensure that the complaints were properly investigated. In my view, the evidence discloses that -40 - there was no sound basis in these circumstances for the Employer to sanction Mr. Pacheco for making the complaints. [85] Many of grievors participated in the CMI process with Ms. Gauci and expressed the view that the Employer did not make meaningful changes to address the conflicts in the workplace. As early as 2013, the Employer recognized that it was necessary to address the interpersonal conflicts that had developed in the Bailiff Department and it retained the services of CMI to help resolve the conflicts with the hope that the PBs and RTCs would at least treat each other with respect and on a professional basis while at work. The fact that the mediation process did not achieve this result to the satisfaction of the grievors is some indication that the resolution of conflicts of this type in a small workplace can be very challenging. The apparent consensus of many of the grievors was that the only way to resolve the problem was to remove one or two PBs from the workplace. As they were well aware, this was easier said than done in a collective agreement environment. Following Ms. Gauci’s first report, the Employer did bring in new managers to provide greater oversight and it is probably no coincidence that the Employer began to discipline Mr. Pacheco after Ms. Gauci’s first report had been released. Mr. Watson utilized many of the options recommended by Ms. Gauci when he addressed conflicts in the workplace. To the extent it is relevant, the criticism from the grievors about the Employer’s response to the recommendations made by Ms. Gauci is simply not justified. [86] A few of the grievors who were filling in for the RTCs who were on sick leave described the stress and the detrimental health impacts that they experienced as a result of working many hours of overtime at a position in which they lacked experience. They were not compelled by the Employer to work the extra hours, but they believed that they had to do their part to keep the Bailiff Department operating. Although their efforts in this regard are commendable, any harm they experienced for their voluntary efforts to work extra hours is too remote and does not entitle them to a remedy, even if the Employer’s actions had contributed to a poisoned work environment. -41 - [87] I will now address the evidence provided by each grievor to support their individual grievance, starting with Mr. Bozzelli. Mr. Bozzelli referred to only a few incidents with Mr. Pacheco, with their last direct encounter taking place in April of 2015. During a trip on February 14, 2015, Mr. Pacheco’s comments to Mr. Bozzelli were about managers. Although he indicated that he felt threatened by Mr. Pacheco’s demeanor and body language after Mr. Pacheco became agitated, the objective circumstances provided by Mr. Bozzelli about this incident do not establish that Mr. Pacheco threatened or harassed him. During a trip on March 13, 2015, it appeared to Mr. Bozzelli that Mr. Pacheco was using his cell phone to record their conversation. His suspicions about whether he was being recorded do not establish an incident of workplace harassment. The last specific encounter Mr. Bozzelli had with Mr. Pacheco was when he told him that he had been ordered to write an OR about the incident that had occurred on April 28, 2015. On this occasion, Mr. Pacheco told Mr. Bozzelli that he would tell everyone that he was a rat and that he would get him. Mr. Bozzelli did not interpret these comments as a physical threat. I am satisfied that Mr. Bozzelli did not advise management about these encounters with Mr. Pacheco soon after they had occurred. Mr. Bozzelli did tell Mr. Bahal years later about Mr. Pacheco’s comment that he would get him. Although he could not recall it, Mr. Bozzelli did testify about this incident at the Pacheco discipline proceeding. Once it became aware of the incident, the Employer relied on it as part of its case to establish that it had just cause to discipline Mr. Pacheco. Contrary to the Union’s suggestion, the Employer did not ignore the incident when it finally came to its attention. [88] Mr. Bozzelli also referred to the anonymous complaints made against him relating to time fraud and overtime manipulation. I addressed the matter of these types of complaints previously. Mr. Bozzelli’s issue with these complaints was that the Employer did not support him. However, apart from whether it would have been appropriate or reasonable for the Employer to support him in that situation, Mr. Bozzelli did not indicate what support the Employer could or should have provided him. And there is no indication that he had asked the Employer for any support. Although Mr. Bozzelli indicated that management did -42 - not address his concerns about Mr. Pacheco, he did not provide any other specific examples of Mr. Pacheco’s improper conduct that he brought to management’s attention. It is therefore not possible to determine from his testimony that any concerns he may have raised with management were about workplace harassment by Mr. Pacheco. Having regard to the entirety of his testimony, I find that there is no basis for concluding that the Employer had failed in its duty to provide Mr. Bozzelli with a workplace free from workplace harassment. [89] As his testimony discloses, Mr. Willey had an extensive working relationship with Mr. Pacheco. His previous positive working relationship changed to a stressful one when Mr. Pacheco routinely argued and disagreed with him. Mr. Willey noted that he often told co-workers and managers about the difficulties he had working with Mr. Pacheco without being more specific about those difficulties. Although Mr. Willey stated that managers told him that they were aware of Mr. Pacheco’s negative and disruptive behaviour, there was nothing in Mr. Willey’s testimony to indicate that Mr. Pacheco engaged in workplace harassment against him prior to the Employer’s decision to return Mr. Pacheco to the Bailiff Department. [90] As described previously, Mr. Willey took issue with Mr. Pacheco’s conduct on May 31, 2018. In essence, Mr. Pacheco appeared to be following him in the Bailiff Department and then turned up at a gas station where Mr. Willey had stopped for gas on the way home. Mr. Willey submitted an OR about the incident, after describing what had occurred to his managers. Once he became aware of Mr. Willey’s OR, Mr. Dykstra requested the Regional Office to initiate an investigation of the matter. Mr. Dykstra felt that an external investigation was required in this instance, rather than an internal investigation. Mr. Dykstra placed Mr. Pacheco on a paid suspension pending the investigation. Mr. Lacroix was assigned the investigation. In addition to gathering certain information, he scheduled an interview with Mr. Willey. After Mr. Lacroix became aware that Mr. Pacheco was on an indefinite sick leave and unable to meet with him, he elected to put the investigation into abeyance pending Mr. -43 - Pacheco’s return. The investigation was administratively closed when Mr. Pacheco lost his status as a public servant. The Union argued that the Employer should have handled the investigation of Mr. Willey’s complaint quite differently. I disagree. The Employer’s usual practice is to place an investigation in abeyance when the individual being investigated is off on sick leave. This is a practice that the Union is familiar with and agrees with. The Employer and the Union appear to recognize that subjecting an individual on sick leave to an investigation might have a negative impact on their recovery. There is also no point in conducting an investigation when it is certain that the individual under investigation will not be returning to the bargaining unit. I am satisfied that the Employer’s response to Mr. Willey’s complaint about Mr. Pacheco was reasonable in the circumstances. I am also satisfied that the Employer did not fail in its duty to provide Mr. Willey with a workplace free from harassment. [91] Many of the grievors, including Mr. Willey, suspected that the Employer’s failure to deal properly with Mr. Pacheco’s conduct and the resulting poisoned work environment was a factor in the Employer’s decision to close the Bailiff Department. There is no evidence to support this suspicion. The Bailiff Department was closed some time after the Employer had become aware that Mr. Pacheco would not be returning to the Bailiff Department for medical reasons. The testimony from some of the grievors about Ms. Cece’s efforts to keep the bailiff operation running as usual suggests that the Employer exercised its management right to close the Bailiff Department due to operational concerns. I note that no grievance had been filed to challenge the Employer’s decision to close the Bailiff Department. [92] Although Mr. Derjugin believed that he was under constant surveillance by Mr. Pacheco and that the situation in the workplace was not ideal because of Mr. Pacheco’s conduct, I am not convinced that Mr. Pacheco had engaged in workplace harassment against Mr. Derjugin. Mr. Derjugin described very few encounters with Mr. Pacheco. He referred to a trip in early 2016 when Mr. Pacheco gave him the silent treatment and took time performing his tasks. He -44 - also mentioned a time when Mr. Pacheco followed him and then suggested to Mr. Derjugin that he was going to suck up to a manager. It is unlikely that this conduct constituted workplace harassment, but even if it could be characterized as such, Mr. Derjugin did not inform management about these incidents. After the Employer’s decision to return Mr. Pacheco to the Bailiff Department, Mr. Derjugin expressed his concerns about Mr. Pacheco to his managers and indicated that he preferred not to work with him. The Employer appeared to take this into account since Mr. Derjugin was not assigned to work with Mr. Pacheco again. In my view, there is no basis for concluding that the Employer had failed in its obligation to provide Mr. Derjugin with a workplace free from harassment. [93] Mr. Bryant did not take any trips with Mr. Pacheco and seldom saw him at the Bailiff Department. He encountered Mr. Pacheco most often in his role as a Health and Safety Representative. From Mr. Pacheco’s first email about health and safety in November of 2016, Mr. Bryant believed that Mr. Pacheco was attempting to obtain his personal information and was trying to intimidate him. However, the objective evidence suggests that Mr. Pacheco simply had some health and safety concerns and that he preferred to deal with such matters and union business without using the Employer’s email. Two anonymous health and safety complaints were made in 2017, likely by Mr. Pacheco. Each complaint was investigated by the MOL and no violations were found. Although Mr. Bryant believed that the two complaints were a direct attack on him, there is no reason to believe that the complaints were directed at him personally and that they were based on anything other than concerns Mr. Pacheco had about health and safety issues. In March of 2018, Mr. Pacheco asked for Mr. Bryant’s personal email address because he again did not want to communicate about health and safety matters and union business using work email. Upon receiving this request, Mr. Bryant felt harassed and targeted and set out his concerns in an OR to Ms. Fernandes. However Mr. Bryant felt about Mr. Pacheco’s request, it is difficult to see how such a request constituted harassment against him. Given that this was an issue between two union members over how they should communicate about health and safety matters, it is not particularly -45 - surprising that Ms. Fernandes did not respond to Mr. Bryant’s OR. For similar reasons, it is not surprising that no action was taken when Mr. Bryant spoke to management in February of 2019 about Mr. Pacheco again raising a concern with him about using the Employer’s email when communicating about union matters. [94] Mr. Bryant was one of the RTCs that signed up for and performed a lot of voluntary overtime during the summer of 2017. He experienced a considerable amount of stress as a result of working excessive hours and he indicated that this extra work affected his health. Mr. Bryant acknowledged that Mr. Pacheco did not direct any threats at him when he did return to work in May of 2018. What Mr. Pacheco did do on May 24, 2018, was to approach Mr. Bryant from behind while they were in the computer room and make vibrating noises with his mouth. Mr. Bryant submitted an OR to Mr. Dykstra over this incident. It was not long after this incident that Mr. Pacheco had left the workplace, never to return. Mr. Bryant was subsequently advised by a WDHP investigator that she did not think there were grounds for a complaint. It is somewhat surprising that the incident described by Mr. Bryant was viewed by the Employer as a matter serious enough to warrant a WDHP investigation. This is some confirmation that local management was serious when it advised employees to watch out for Mr. Pacheco and to bring their concerns about him to management’s attention. Irrespective of how Mr. Bryant felt about his interactions with Mr. Pacheco, and even if Mr. Pacheco’s conduct could be described as workplace harassment, which I doubt, the Union did not establish that the Employer’s responses to his complaints were unreasonable in the circumstances. The Union also did not establish that the Employer had failed in its duty to provide Mr. Bryant with a workplace free from harassment. [95] Mr. Reis did not perform any trips with Mr. Pacheco. His interactions with Mr. Pacheco occurred after the Employer had returned Mr. Pacheco to the Bailiff Department. Mr. Pacheco would often stop and stare at Mr. Reis when he walked by. In the fall of 2017, Mr. Pacheco followed Mr. Reis for a while as he moved through sections of the Bailiff Department, just staring at him. He -46 - reported this incident to Mr. Watson. After being told that Mr. Pacheco did not say anything threatening, Mr. Watson told him to go on his trip and to tell him if Mr. Pacheco tried anything else. Since Mr. Pacheco did not try anything else, the event ended there. Even though Mr. Watson did not ask Mr. Reis to file an OR, Mr. Reis could have filed an OR if he wanted to pursue the matter further. Mr. Watson testified that he did recall this incident. He indicated that Mr. Pacheco’s conduct was strange and troubling, but not something that Mr. Pacheco could be progressively disciplined for. During cross-examination, Mr. Watson indicated that if Mr. Pacheco had made a move towards Mr. Reis, he would have viewed the matter differently. Mr. Watson concluded that the presence of Mr. Pacheco in the same areas of the Bailiff Department with Mr. Reis was not sufficient to establish a WDHP violation. The incident occurred after the grievances before me had been filed. Mr. Watson came to his conclusion at a time when he was encouraging employees to bring any inappropriate behaviour by Mr. Pacheco to management’s attention. There is no doubt that Mr. Watson expressed his honest assessment of the situation. In hindsight, it is possible to conclude that Mr. Watson should have viewed the incident differently. However, I am not prepared to conclude that the Employer’s response to this one complaint from Mr. Reis was unreasonable in the circumstances. The others matters referred to by Mr. Reis are similar to those matters that have been addressed from the testimony of other grievors. I am satisfied in the circumstances that the Employer did not fail in its duty to provide Mr. Reis with a workplace free from harassment. [96] As an RTC, Mr. Murphy was also a person Mr. Pacheco complained about to management and the MOL for the improper distribution of overtime. I have addressed these types of complaints previously. Mr. Pacheco also complained when Mr. Murphy phoned his home to offer him overtime and when Mr. Murphy raised his voice and was allegedly disrespectful to Mr. Watson during a mediation session in July of 2015. Mr. Murphy described how Mr. Pacheco often would “blow a raspberry” to startle an employee. Mr. Murphy did not indicate that Mr. Pacheco did this to him. The only time anyone complained to management about this was after Mr. Pacheco returned to the Bailiff -47 - Department. Mr. Murphy indicated that management did respond to these complaints by calling Mr. Pacheco into the office to the address the issue. [97] Mr. Murphy did file two ORs about Mr. Pacheco and claimed that management did nothing to resolve the matters. As noted previously, Mr. Murphy was mistaken about the Employer’s response. With respect to both of his ORs, management did investigate the matters and issued significant discipline to Mr. Pacheco for his conduct. Mr. Murphy did not have any negative encounters with Mr. Pacheco after he had been returned to the workplace by the Employer. There is nothing in Mr. Murphy’s testimony to support the conclusion that he experienced workplace harassment from Mr. Pacheco or that the Employer had failed in its duty to provide him with a workplace free from harassment. [98] There is little doubt from her testimony that Ms. Bartlett had considerable difficulties with Mr. Pacheco. In her case, the Union argued that she was not only the victim of workplace harassment, but that her treatment by Mr. Pacheco contravened article 3.1 of the Collective Agreement and the OHRC. Her problematic encounters with Mr. Pacheco appear to have taken place before 2015. She filed at least one grievance relating to Mr. Pacheco’s conduct which was settled in 2013. She requested that she not be assigned to work with Mr. Pacheco and Mr. Quinn assured her that she would no longer be required to work with him. From at least 2014, the Employer took steps to satisfy Ms. Bartlett’s request to have minimal contact with Mr. Pacheco. This included the offer of an RTC assignment at Lindsay. Ms. Bartlett did not have any further adverse encounters with Mr. Pacheco from at least sometime in 2014. [99] It is quite likely that some of Mr. Pacheco’s conduct towards Ms. Bartlett prior to 2015 constituted discrimination and workplace harassment. It is certainly unfortunate that she had these experiences which considerably impacted her health. The Employer’s approach in dealing with this situation was to accede to Ms. Bartlett’s request that she and Mr. Pacheco be kept apart as much as possible. In hindsight, it is possible to conclude that the Employer should have taken additional steps to hold Mr. Pacheco to account for some of his pre-2015 conduct against Ms. Bartlett. However, it is difficult and somewhat unfair to -48 - assess the Employer’s response to the matters raised by Ms. Bartlett when they had occurred at least 2½ years before Ms. Bartlett’s grievance was filed. In any event, the Employer’s efforts to ensure that Mr. Pacheco had minimal contact with Ms. Bartlett for many years appears to have been successful, as evidenced by the fact that Ms. Bartlett did not have any adverse encounters with Mr. Pacheco after 2015. A consideration of all of the circumstances compels the conclusion that, although not perfect, the Employer’s handling of Ms. Bartlett’s issues with Mr. Pacheco was not unreasonable and did not contravene its obligation to provide her with a workplace free from discrimination and workplace harassment. [100] Mr. Hintz described a couple of encounters that he had with Mr. Pacheco in January of 2016. He reported these incidents to Mr. Watson. At Mr. Watson’s request, Mr. Hintz set out the incidents in an OR. In his OR he described the incidents as “a few small interactions with Mr. Pacheco”. The first incident occurred on January 19, 2016. While in the bailiff locker room, Mr. Pacheco asked Mr. Hintz what time he was starting, what trip he was doing and who his partner was. Mr. Hintz answered the questions and left the locker room. Mr. Hintz felt that he was being interrogated by Mr. Pacheco. At the end of his city trip on the following day, Mr. Pacheco commented on how he had made good time on his trip while they were in the bailiff office. Mr. Hintz simply indicated that they had completed the trip in the usual time for a city trip. When another PB returned from a trip, Mr. Pacheco commented that there was another trip done early. Mr. Hintz then went to bailiff locker room to make arrangements for a trip to Ottawa. While Mr. Hintz was on the phone, Mr. Pacheco entered the locker room. Mr. Hintz completed making his arrangements and left the locker room. Mr. Hintz believed that Mr. Pacheco only came into the locker room to make him uncomfortable. [101] Mr. Hintz indicated that no one in management spoke to him about the incidents he described in his OR. Mr. Watson’s position was that any time he heard about an issue between employees, he would often ask for an OR and then address the issue. In this instance, Mr. Watson could not recall the events -49 - described by Mr. Hintz. He could not recall what actions he took, if any, to address them. This is not particularly surprising, given that Mr. Watson gave his evidence almost six years after the incidents had occurred and over two years after the Bailiff Department had closed. These are relevant considerations when assessing the allegation that the Employer did not investigate and appropriately address the matters raised Mr. Hintz. In any event, it does not appear to me that the incidents referred to by Mr. Hintz obliged the Employer to investigate them. As Mr. Hintz noted in his OR, these were small interactions with Mr. Pacheco. Looking at them objectively, the few questions Mr. Pacheco asked Mr. Hintz about his trip on January 19, 2016, and the comments he made on the following day about how quickly trips had been completed do not constitute workplace harassment. Although Mr. Hintz believed that Mr. Pacheco’s brief presence in the locker room was intended to make him feel uncomfortable, it would have been difficult to establish why Mr. Pacheco entered the locker room when he did. Even if Mr. Watson did not do anything to respond to Mr. Hintz’s OR, I cannot imagine that an investigation was necessary. I also note that there is no indication that Mr. Hintz went back to Mr. Watson to ask him about his OR and what the Employer was doing about the events described in his OR. If anything, this serves to highlight Mr. Hintz’s view that the incidents were minor nature. [102] Mr. Hintz worked a considerable amount of overtime as an RTC when other RTCs were absent during the summer of 2017. Although he found the work stressful, he felt he had a moral obligation to perform this voluntary work to ensure that the Bailiff Department remained viable. As noted previously, his efforts in this regard cannot be linked to any wrongdoing by the Employer. In my view, the Union has not established that the Employer failed in its duty to provide Mr. Hintz with a workplace free from harassment. [103] Mr. Olivierre made reference in his testimony to fraud and overtime manipulation complaints made by Mr. Pacheco against him. Mr. Olivierre also indicated that Mr. Pacheco often asked him about the workday of other PBs. I have addressed previously these types of concerns when commenting on the -50 - testimony of other PBs. Mr. Olivierre indicated that he was reluctant to complain about another union member. There is no indication from Mr. Olivierre’s testimony that Mr. Pacheco engaged in harassing conduct against him. I am therefore satisfied that the Employer did not fail in its duty to provide Mr. Olivierre with a workplace free from harassment. [104] Mr. Scaduto became a PB in October of 2016, after Mr. Pacheco’s employment had been terminated. Mr. Scaduto did not have any adverse encounters with Mr. Pacheco. He did not work with him on trips. His knowledge about Mr. Pacheco came from what he was told by RTCs. Mr. Scaduto was anxious and stressed because of the negative impact that Mr. Pacheco had on the workplace. The fact that he had worked a lot of overtime as an acting RTC caused him stress at work and at home. There is no basis from Mr. Scaduto’s testimony to conclude that the Employer had failed in its duty to provide him with a workplace free from workplace harassment. [105] It is important to take into account the significant discipline that the Employer issued to Mr. Pacheco when considering how it managed him and how it addressed complaints of serious misconduct that were made against him. The first suspension issued to Mr. Pacheco was for incidents with Mr. Powis that in part contravened the WDHP Policy. Mr. Pacheco then received a 15 and a 20- day suspension within a relatively short period of time. The Employer then terminated Mr. Pacheco’s employment because he again engaged in workplace harassment against Mr. Powis. Even though it decided to return Mr. Pacheco to the Bailiff Department, the Employer was committed to carefully monitor Mr. Pacheco and to address any serious misconduct on his part that was brought to its attention. [106] Some final comments are warranted before concluding this decision. Counsel for the Union made a vigorous effort to advance all the relevant arguments to support the claims made by the grievors. Although I was not convinced that a lot of Mr. Pacheco’s conduct against the grievors amounted to harassment or discrimination, I appreciate that Mr. Pacheco contributed to an unpleasant work environment for the grievors over a considerable period of time. For example, -51 - as Mr. Willey indicated, it would be stressful to work with someone who would often argue and disagree with you. I also appreciate that interpersonal conflicts in a relatively small workplace can be difficult to manage for an employer. This is particularly the case in a correctional setting where employees are generally very reluctant to report the wrongdoings of a co-worker. As noted previously, the standard for assessing the Employer’s response to complaints made by the grievors is reasonableness. It is easy with hindsight to suggest that the Employer could have done more in certain instances to address the conduct of Mr. Pacheco. However, the standard the Employer is required to meet is not perfection. In considering all of the circumstances in light of the allegations made by the grievors, I am satisfied that the Employer acted reasonably and complied with its Collective Agreement and statutory obligations to provide the PBs and the RTCs with a workplace free from workplace harassment and discrimination. And, as noted previously, I also find that the Employer did not contravene the Collective Agreement and the OHSA when it returned Mr. Pacheco to the Bailiff Department. [107] For the foregoing reasons, the ten grievances in the first set of grievances are dismissed. The second set of grievances concern the Employer’s failure to address the situation that was created by the Employer’s decision to return Mr. Pacheco to the Bailiff Department. These grievances essentially raise the same issues that I have addressed in these reasons. Accordingly, the six grievances in the second set of grievances are also hereby dismissed. Dated at Toronto, Ontario this 2nd day of June 2023. “Kenneth Petryshen” Kenneth Petryshen, Arbitrator