GSB# 2001-1829, 2002-2390

UNION# 2002-0211-0005, 2002-0211-0044

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Barillari)

Union

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

Nimal V. Dissanayake

Vice-Chair

FOR THE UNION

Nelson Roland Barrister and Solicitor

FOR THE EMPLOYER

Ferina Murji Counsel Ministry of Government Services

HEARING

March 13, November 6 & 7, 2003; March 16, 17, 23, April 22, May 4, 13, July 9, 2004; June, 1, 2, 20, July 14, 15, 20, September 30, November 18, December 12 & 19, 2005; July 12, 13 & 18, 2006.

Decision

The Board is seized with two grievances filed by Ms. Rosie Barillari (“the grievor”). The first dated February 7, 2002 states:

I feel that I have been harassed and discriminated against by my employer under article 3:1 of the Collective Agreement. I was told that I could not give out Christmas gifts with scripture reading attached. The employer around the same time handed out manuals containing a religious quote and other philosophical and political quotes. I feel I was unnecessarily harassed as a result of a fellow employee’s complaint to the manager about my gift without: (1) discussing it with me personally, (2) not knowing if the complainant(s) was from another religion known within the office or one that did not practice the Christmas holiday in any form.

The settlement desired is set out as follows:

(1) I want to be able to continue to give out similar gifts in the future to parties that find them acceptable without fear of reprisal.

(2) I want the right to be excluded from any future workshops or training that includes a philosophy or creed that is offensive to me and emotionally disturbing to me.

(3) I want the poisoned work place atmosphere to be corrected.

The second grievance is dated December 13, 2002 and reads:

I have been denied my rights under Article 2 and 3 of the Collective Agreement and any other applicable article by my manager’s refusal to remove any and all letters of counsel, caution and any other material that is negative&/or derogatory in nature on any file held by the Ministry of Community, Family and Children’s Services. This has been a constant barrage that has affected my health and attendance.

The settlement desired is set out as follows:

That the above material be removed immediately and that there be no further reprisals, reprimands or harassment. That I be allowed to perform my duties without the above impediments. That I no longer be directed to supervise my peers or police their actions as part of performance management.

The evidence and submissions on the merits of the two grievances were received over 22 hearing days. The grievor’s religious beliefs formed a central theme throughout the proceeding. The grievor became a permanent full-time employee of the crown effective December 1, 1980. She has held the same position with the Ministry of Community and Social Services since, although her title changed several times. At the time of the grievances, her title was Income Support Specialist (ISS). She worked at the St. Catharines local office, which was one of several local offices under the jurisdiction of the Regional Office located in Hamilton. It suffices to note that the role of the office was to provide support and various benefits to individuals and families under the Ontario Disability Support Program. In that position, she reported to Income Support Manager (ISM), Ms. Rebecca DesRoches. Below the level of Income Support Specialist (ISS) were a group of Client Service Representatives (CSR). The CSR’s essentially gathered the necessary information on a file and escalated the file to an ISS. The CSR’s reported to a different ISM, Mr. Gary Norris.

The grievor testified that she was born in Canada to immigrant Italian parents. She grew up in a multicultural neighbourhood in Niagara Falls, attended a private Catholic girls school and practiced Roman Catholicism. Following high school she went on to obtain a BA (Psychology) from Brock University. In 1975, she became a “Born again Christian” and in January 1994 started attending a non-denominational church. She testified that the non-denominational church emphasizes “outreach” with the goal of making every person a disciple of Christ, which she stated was the mandate given by Christ himself. She testified that she subscribed to that mandate and that her pastor was an “evangelist”. Initially the Ministry had local offices at Niagara Falls, St. Catharines and Welland. In November 1999, these three offices were amalgamated and in July 2000 were relocated in one large office in St. Catharines.

The grievances before the Board stem from the grievor’s action on December 11, 2001 of distributing pens to her co-workers as Christmas gifts. That day, the office had a “Christmas luncheon”. The grievor had purchased approximately 40-45 pens as well as gift tags with Christmas designs and colours. On one side of the tag were the printed words “To” and “From”. The reverse side was blank. On the reverse side of each tag, she wrote in her own hand, a quotation of scripture from the old and new testaments of the bible, which she had randomly picked. A sample of these tags was filed as an exhibit. On the reverse side, the following was written:

I will instruct you and teach you in the way that you shall go. I will guide you with my eyes.

Psalm 32:8

The grievor testified that she prepared the tags with different scriptures and attached a tag to each pen. She testified that she carried the pens to work on December 11, 2001 in a bag, went around the office handing one to each of her co-workers she could find. If a co-worker was not at the workstation, she left a pen on the desk. She testified that she did that out of goodwill. Although not certain, she thought that she distributed the pens mostly during lunch break. She stated that she did not force anyone to accept her gift, that if someone did not like her “gesture”, they could have given the gift back or “stated something”. She testified that she was aware that three of the colleagues she gave these gifts to were from “different religious”. She recalled specifically telling them that if the gift offended them, they could give it back to her. Of the three, one (a Muslim) gave the pen to someone else. The second, (a Jehovah’s witness) returned the pen to the grievor. The third (a Buddhist) simply put the pen away in a drawer. The grievor testified that the three co-workers expressed to her that they were not offended by her gift “but because of their religious beliefs, they wanted to take this line of action”.

The grievor testified that the first indication of a problem was when Ms. DesRoches advised her during the luncheon that someone had made a complaint that she had found the gift offensive. The grievor asked Ms DesRoches why they did not personally approach her rather than complain to management. Ms. DesRoches replied that may be they did not feel comfortable approaching the grievor. The grievor testified that she was not given the opportunity to meet with whoever complained and no facilitator or mediator was provided to clear the situation. She stated that she had no desire to end up causing bad feelings, and did no want someone misconstruing her gesture. She testified that Ms. DesRoches advised her that in future she could hand out pens or pencils as gifts, but not with scriptures attached.

The first grievance dated February 7, 2002 relates to that verbal direction. The grievor testified that she grieved because the direction she received was inconsistent with her observations of what other employees were allowed. She stated that her colleagues were allowed to give out Christmas cards with scripture, to display religious symbols and paraphernalia on their person and at their workstations, and to exchange gifts of a religious nature. She named three co-workers who had in the past given her Christmas cards which had the word “god” or had religious symbols. She stated that in the past, every year at Christmas she had given out gifts with religious tags attached. Some retained the tags and read the scripture on it “as a source of comfort, wisdom and encouragement, while another co-worker displayed the tag at her workstation.”

The grievor testified that a co-worker regularly wore a 1½ inch Christian cross on a chain around her neck. Another wore an angel pin to work. She also had observed a co-worker who had a screen-saver with scripture or quotations. Others had screen-savers with serine scenery such as mountains or meadows. She considered the employer’s tolerance of that conduct to be inconsistent with the direction she received that she should not hand out pens with scripture attached as gifts.

The grievor testified that she was moved to a workstation which had been previously occupied by another employee prior to her retirement. Once she moved, the grievor found a 2002 calendar and a 2001-2002 day planner which had been left behind by the previous occupant. The page for February 2002 from the calendar, and the front cover page of the planner were filed as exhibits. Above the dates, the calendar depicts a painting of a teacup with a floral design, along with the signature of the artist. Above the painting appear the words “The fruit of the spirit is love, joy, peace, patience, kindness, goodness, faithfulness, gentleness and self-control. Against such things there is no law - Galatians 5:22”. On the back of the front cover page of the personal planner appear the words “Each day is a day that god has given us, and each moment of that day is in his hands” – Roy Lessin - .

The grievor named another employee, who she testified had a government pass key band around her neck, and another who wore a wristband. The bands contained the letters “WWJD”, which the grievor believed stood for “what would Jesus do”. She referred to a gift another employee had given her after she had received the direction from Ms. DesRoches about handing out pens. The gift came with an accompanying tag with the statement “I will bless the Lord at all times. His praise shall continually be in my mouth – Psalm 34:1”. The grievor was concerned that by accepting the gift, she may be accused of violating Ms. DesRoches’ direction. Therefore, she inquired from Ms. DesRoches whether she could accept the gift. Ms. DesRoches advised her that if she wished she could accept it and could also display the gift at her workstation provided the tag with scripture was hidden from view.

The union also claimed that the employer had itself engaged in religious activity which was contrary to the direction given to the grievor. Filed as an exhibit was a Ministry issued manual titled “ODSP Competency Reference”. It was developed by the South-West Region as a reference and training tool on applying skill and knowledge. On the back of each of 42 pages various quotations were printed. For example – “You can’t build a reputation on what you are going to do – Henry Ford”; “You cannot shake hands with a clenched fist _ Indira Gandhi”; “Remember that you can miss a lot of good things in life by having the wrong attitude – H. Jackson Brown Jr.”. the grievor cited one of the 42 quotations that appeared in the manual as demonstrating that Ms. DesRoches’ direction to her was “two-sided”. That quotation reads: “Knowledge is the most precious treasure of all things because it can never be given away nor stolen nor consumed – Sanskrit proverb”. The grievor’s objection was not about the quotation but its source. She testified that based on her research of dictionaries, Sanskrit is only used in relation to the Hindu religion. Thus she argued that anything that comes out of the Sanskrit language is related to the Hindu religion.

As further support for her claim that the employer singled her out because of her religious beliefs, the grievor filed a card she had received at home by mail in December 2001, from M.P.P. and then Minister of Community, Family & Children’s Services, Mr. Tony Clement. It was signed by each member of the Clement family and contained the words “From our home to yours, our best wishes for peace and joy”.

The grievor was asked by her counsel to explain the second remedy she was seeking i.e. “I want to be excluded from any workshops or training that includes a philosophy or creed that is offensive to me and emotionally disturbing to me.” The grievor testified that she was directed by her manager to attend a workshop called “Colour me”, conducted by local trainers from the ministry. It involved pegging each employee to a particular colour and treating that employee based on the colour assigned to her. She made inquiry from Brock University and was advised that those training methods had not been scientifically tested but was based on a philosophy developed in the 1950’s by two women. She found that objectionable. She said “I don’t want to be involved in anything not scientifically proven. I felt that people were being profiled”.

The grievor was asked to explain her reference in the grievance to “poisoned workplace atmosphere”. She stated that in the period between the December 11, 2001 incident and the filing of her grievance on February 7, 2002, the work environment was “horrible”. She stated “you worry that someone may be offended. You cannot do anything. You can no longer exchange ideas with colleagues about other religions, cultures, customs or family backgrounds”. She referred the Board to the minutes of the St. Catharines Local Office Employee Relations Committee meeting held on December 12, 2001. The Committee is a joint committee consisting of employer and union representatives. The grievor pointed to item 3 of the minutes as part of the poisoned work environment she was speaking of. It reads

2. Workplace “environment”.

A number of staff have expressed to Managers a level of discomfort around certain topics of discussion in the workplace in general and the office common room in particular. There is some feeling that certain conversational themes, and related symbols, are becoming more predominant and may not be appropriate in a workplace setting. Sensitivities have become heightened in the office and all staff are asked to be mutually tolerant and respectful of their colleagues as we attempt to manage this issue. Staff are reminded that the workplace is a non-religious setting and the need for awareness of that fact when interviewing clients deskside in the office, which will be a routine part of business practice shortly.

Action: Managers will consult with the Regional Office on this issue and will also seek advice from Regional HR staff. Employees are aware of WDHP (Workplace Discrimination Harassment policy) requirements. A suggestion that a Regional statement [reminder] to all offices on this issue would be helpful, with local office follow up, would be the proper course of action.

The grievor understood that after the minutes came out, “now we were not allowed discuss anything of a religious nature even in the common room where we go for lunch.”

The grievor also referred to a memorandum dated June 20, 2002 from Mr. Terry McCarthy, Regional Director for Hamilton/Niagara, addressed to all staff. It related to “World Youth Day 2002” and reads:

Ontario will be hosting World Youth Day from July 18-28, 2002. World Youth Day is the biggest international event ever staged in Canada, and hundreds of thousands of young people from around the world are expected to visit Ontario to commemorate this special occasion.

The ministry recognizes that, for many reasons, there may be a higher-than-normal volume of requests for vacation/use of accumulated credit and requests for unpaid leaves during the month of July.

While we would like to accommodate staff requests as much as possible, we may not be able to approve all requests for the month of July should they compromise government operations. For this reason you are encouraged to submit your requests to your manager as soon as possible.

World Youth Day 2002 is expected to bring significant economic benefits and an opportunity to showcase our province to the world. At the same time, it is important to keep our offices open and running during this time. I would like to thank you in advance for your cooperation and extra effort.

For more information on World Youth Day, visit the Ontario World Youth Day home page at www.wydontario.com or the event organizers’ official website at www.wyd2002.org.

Also filed was a pamphlet the grievor received with a pay cheque. She believed that every employee of the Province received a copy of this pamphlet. It contained the logo of the Province of Ontario at the top and a Christian logo which included a cross at the bottom. The pamphlet reads:

ONTARIO WELCOMES THE WORLD

JULY 18-28, 2002

This summer, Ontario will host the largest international conference ever held in Canada, when hundreds of thousands of delegates from 150 countries join Pope John Paul II for World Youth Day 2002.

This event will showcase Ontario to the world. Up to 35,000 volunteers are needed to host delegates and help stage events.

To find out more about the many opportunities resulting from this historic event, visit the Province of Ontario’s World Youth Day web site at www.wydontario.com.

The grievor testified that “this shows how the employer has treated me differently by saying I cannot hand out scripture. The employer has shown favouritism and has invited staff to a religious event, whereas I was advised to refrain from giving out scripture.”

On the same subject, the union also filed a page that appeared in the Ministry’s web site. It is dated June 27, 2002 and reads:

June 27, 2002

Ontario prepares to welcome the world

World Youth Day – July 18-28-2002

The world is coming to Ontario in July, and staff at the Ministry of Municipal Affairs and Housing’s Provincial World Youth Day Secretariat are getting ready.

They are preparing for World Youth Day activities on two fronts – supporting the overall government commitment to provide countless thousands of guests with a safe and memorable visit, and helping to recruit Ontarians to act as volunteers and hosts.

“World Youth Day is the biggest international event ever to be staged in Canada”, says Minister of Municipal Affairs and Housing Chris Hodgson, the minister responsible for World Youth Day. “It gives us an opportunity to showcase Ontario to the world. But it also challenges us to work smoothly as a team to make sure that World Youth Day 2002 goes well. We are asking everyone across government to pitch in.”

Scores of activities are being staged in Ontario communities. They are part of an extensive program developed since Pope John Paul II confirmed Toronto as host city two years ago. “Days in the Dioceses” will be held across the province July 18 to 20. The main program focuses on Toronto from July 22 to 28, including a papal Mass at Downsview Park on Sunday, July 28.

The biggest international event ever staged in Canada, hundreds of thousands of people are expected to attend World Youth Day. That number could increase for the Papal Mass. While it is a major event in the calendar of the Catholic Church, members of all faiths are welcome to attend World Youth Day events.

“This will highlight Ontario as a perfect venue for major world gatherings”, Minister Hodgson said. “But it will require a lot of work on our part. I am asking everyone’s support in planning, organizing and delivering on Ontario’s commitment to make WYD a resounding success.”

“Our goal is to maximize the long-term economic benefits that flow from a safe and memorable event. A study by the City of Toronto, based on attendance of 500,000 people, suggests the economic spin-off for Ontario could exceed $ 300 million. We have made a commitment to the success of the event within the bounds of our jurisdiction and resources.”

Visit the web for more information:

Official World Youth Day 2002 (Catholic Church) www.wyd2002.org

Province of Ontario www.wydontario.com

City of Toronto www.city.toronto.on.ca/wyd2002

Finally, the union filed as evidence of the employer’s inconsistency, a pamphlet she found sometime in November 2002 in her mail slot at work. It was an invitation to attend sessions held every Thursday evening at the Christ Anglican Church in St. Catharines by “the Anger Management Self-Help Support Group”. She testified that she had no idea who placed the pamphlet in her mail slot.

The grievor testified that in January 2002 she went to Ms. DesRoches’ office and told her “that people had died in world wars one and two so we can have freedoms here in Canada. I said it’s an affront to the memory of those people when I am persecuted and denied my freedom of expression”. She testified that she brought to the attention of Ms. DesRoches that a co-worker who was a Muslim had brought some “baked goodies” for her the day after Ramadan day and asked why Ms. DesRoches was allowing that. The grievor could not recall whether Ms. DesRoches responded.

Under cross-examination, the grievor agreed that prior to December 2001, employees had freely exchanged Christmas gifts as well as Christmas cards. She agreed that she had never been previously told by management that she could not do that. Employer counsel referred the grievor to her evidence about her observing at the workplace Christmas cards with scripture on it, jewellery such as crosses and angel pins, the tag and bracelet with “WWJD”, and the religious screen-savers. She was referred to her evidence about the Christmas luncheons that had been held in the past. She was asked whether she found any of that to be offensive. She replied “not at all”. She also stated that she had not made any complaint about any of that.

The second grievance dated December 13, 2002 relates to two letters given to the grievor. The first dated August 23, 2002 was signed by Ms. DesRoches and reads:

Letter of Counsel

Further to our conversation on Tuesday, August 20, 2002 this letter is to advise you to refrain from any religious based conversations/invitations within this workplace.

Your continued co-operation in this matter is greatly appreciated.

The second letter dated October 16, 2002, and also signed by Ms. DesRoches reads:

Re: Letter of Counsel

This is a letter of counsel resulting from discussions with you and your union representative regarding an incident that occurred on October 23^rd, 2002, when a client request was referred to you by a fellow employee. The client indicated that they wished to remove two dependents from their benefit entitlement; however, because the client could neither read nor write they wished to report the changes over the phone, instead of writing them on a Change Card. When you were informed of this by your colleague you indicated that you have to report suspicious cases to management and that because of the age, gender and surname of the dependents and client that there was a need for suspicion because terrorism may be involved. You have said that you raised your concerns in the aftermath of the events of September 11, 2001. You then put the case on hold pending written documentation from the client.

The events of September 11, 2001 were difficult for many of our employees, and have created lingering anxiety. That being said, the Ministry provides services to a diverse population of clients and, therefore, finds your behaviour objectionable.

As clarification, management has the following expectations: you will carry out all duties and tasks of your job to the best of your ability; you will treat all clients with dignity and respect and in accordance with the Ontario Human Rights Code; you will comply with the Ministry’s Standards of Conduct. Also, please be aware that it is not a Ministry requirement to ask clients, who are unable to do so, to put their requests in writing. If you have any questions about these expectation’s please discuss them with your immediate supervisor.

This letter is intended to make you aware of the employer’s standards and requirements and is not disciplinary in any way. This letter will not be placed on your personnel file.

The union claims that these letters constitute discipline and that on that basis the Board has jurisdiction to hold the employer to a standard of just cause. In any event, the union claims that the letters contravene the prohibition against discrimination on the basis of creed in article 3 and also constitutes and unreasonable and malicious exercise of management rights contrary to Article 2.

The grievor explained during her examination in chief what she meant by the word “barrage” in her grievance. She stated that following the issuance of the first letter of counsel dated August 23, 2002, “it seemed like I was being hauled in to the manager’s office for any slight problem or situation arising in the workplace.” She stated that she was called in for meetings every time a workload or work issue arose between herself and CSR’s and ISC’s. She stated that Ms. DesRoches had directed her that if she came across blatantly deficient work which had been escalated to her by a CSR, she was to bring that to Ms. DesRoches’ attention, so that Ms. DesRoaches could bring that to the attention of the CSR’s Manager. She complied with that direction. She testified that this created an atmosphere of “us vs. them”, i.e. ISS’s vs. CSR’s. The result was, the CSR’s started complaining to management about the grievor, because they were aware that the grievor had brought their deficient work to the attention of management. Every time a CSR made a complaint about her, the grievor was “hauled in” to the manager’s office. The grievor testified that such meetings occurred frequently during the period between the two letters of counsel. When the Vice-Chair asked the grievor what would happen at these meetings in the manager’s office, she replied, “To discuss any of the complaints that would come from the CSRs about something I did that was a problem. The CSR’s were complaining and I’d get pulled in.”

The grievor gave the following example. The grievor discovered that a CSR had escalated to her incomplete work in that the CSR had failed to prepare a letter to the client advising of the addition of a $ 42 monthly entitlement. In an e-mail issued the previous day the CSR manager had established a procedure which required that the CSR should prepare such letters. Therefore, the grievor put the file back on the CSR’s desk with a “sticky note” stating that it was the CSR’s responsibility to prepare the letter before escalating the file to the grievor. The grievor assumed that the CSR had complained to Ms. DesRoches because, Ms. DesRoches sent the file back to the grievor with a note that the grievor should prepare the letter in question. The grievor went in to see Ms. DesRoches and showed a copy of an e-mail from the CSR Manager and advised her that in compliance with the procedure in the e-mail it was the CSR’s responsibility to prepare the letter. According to the grievor, Ms. DesRoches admitted her error and stated that she was not aware of the e-mail. Ms. DesRoches then sent the file back to the CSR with a copy of the e-mail and directed the CSR to do the letter. When asked what her complaint was with regard to this incident, the grievor stated that Ms. DesRoches accepted the CSR’s complaint that she was a problem, when she had in fact complied with procedure.

The grievor provided a further example of a “barrage”. She and a CSR disagreed on how a certain file was to be handled. The grievor pointed out to the CSR what the proper way was, that the CSR had not done the work properly. The CSR responded by stating “This is the way I am going to do it. If you have a problem you can speak to my manager.” The grievor told the CSR that she will not go to management to complain about a colleague, and told the CSR that her attitude was contributing to a poisoned work environment. The CSR replied that she did not care. The grievor testified that as a result of this incident a meeting was held. The attendees included the CSR Manager, Ms. DesRoches, the local union president, a union steward, the CSR in question and the grievor. The CSR Manager Mr. Gary Norris, told those present that the purpose of the meeting was “to find out details of the incident, why it took place, how to resolve the situation and how to prevent such future occurrences.” The grievor testified that there had been a past history of a poor working relationship between herself and the particular CSR. The grievor had made up her mind to make a fresh start following the move. However, the meeting did not help in that regard because it ended up as a re-hashing of the past difficulties between the grievor and the CSR. The grievor testified that at the end of the meeting, the CSR stated that she would work with the grievor, and the grievor herself reiterated that she was also prepared to work professionally with the CSR and to treat past problems as non-existent. When the Vice-Chair asked what her complaint was against the employer she replied, “I didn’t like the idea that the past was brought up at the meeting. They were supposed to be already resolved.”

The grievor testified that she felt as if everything she did was “not according to business practices and protocol”. She said, “managers would entertain CSR’s to come to them with complaints, instead of asking them to work things out with myself”. She stated that rather than attempting to resolve the situation, managers were creating a poisoned work environment by entertaining these complaints “instead of seeing if I was innocent. It seemed always managers assume I was guilty. So you feel no matter what you do or say, you are being picked on.”

The grievor proceeded to give detailed testimony about disagreements she had with various co-workers, mostly CSRs. I will not set out that evidence. It suffices to note that the grievor testified that all of the complaints made against her by her colleagues, and the management’s willingness to entertain such complaints, made her feel belittled and incompetent.

The grievor, however testified that the employer launched a Workplace Cultural Review in September 2002, which had been endorsed by the Employee Relations Committee. The documentation indicates the purpose of the review to be to “provide an objective assessment of the workplace culture, with a view to ensuring a positive and respectful workplace, while improving the overall efficiency of the office”. The grievor testified that she wanted to be a part of the solution to the problem of colleagues not getting along and informed Ms. DesRoches of her desire to be included in the review. As a result she was one of the individuals selected to be interviewed by the consultant who carried out the review. She stated that the Regional Director attended a staff meeting and issued “a synopsis report” from the consultant, but she believed that the full report was not issued to the staff at the St. Catharines local office. She had heard that the full report concluded that the management was the problem. However, the report issued to the staff inferred that staff was to blame. The grievor testified that the review exercise did not make the work environment any better. She felt that the report gave the managers more fuel to put the blame on staff.

The grievor testified about the incident which is the subject of the letter of counsel dated October 16, 2002, which was referred to by the parties as “the racial profiling” allegation. She stated that a CSR had escalated a file to her with a note attached. In the note, the CSR stated that she had received a telephone call from a client whose family was in receipt of benefits. The client informed the CSR that two adult sons had gone away from home and that the parents had no idea of the two sons’ whereabouts. The client requested that the two sons be removed from the family unit’s budget. The grievor approached the CSR and asked whether the client had sent in a completed changes form or some other written document requesting the change. The grievor testified that her usual practice was to get any request for change in writing. When the CSR stated that nothing in writing was received, she asked the CSR whether it would be possible to get something in writing. The CSR replied that the client could not read or write. The grievor testified that she tried in many different ways to explain to the CSR why it was prudent to get a request for change in writing. She stated that it was a very calm and amicable conversation between herself and the CSR. Therefore she was surprised when she was accused of racial profiling. Union counsel asked the grievor whether she mentioned “September 11^th” during her conversation with the CSR. The grievor replied “I don’t think so. I cannot recall”. Counsel asked, “Did you mention anything about the client’s ethnicity, place of origin, religion etc?” The reply was “I don’t think so. I do not recall that I did”.

The grievor went on that she went in to see Ms. DesRoches to discuss the situation. She testified, “I asked her, if there are two missing dependent adults and if we see reason for suspicion or see something odd are we not supposed to report? Shouldn’t we get something in writing? She said see if you can call the client and get something”.

Union counsel asked the grievor “Did you mention September 11^th, or the dependents’ ethnicity or race etc?”. This time the grievor replied, “Yes. Because we had received an e-mail after September 11^th that if we see anything unusual, to report it.” She confirmed that she had mentioned that at the meeting with Ms. DesRoches. The grievor testified that she subsequently called the client and obtained a written notation. Subsequently, Ms. DesRoches met with the grievor and advised her that the CSR had complained to her manager, Mr. Gary Norris, and Mr. Norris had reported the complaint to Ms. DesRoches. Ms. DesRoches told the grievor that she had engaged in racial profiling which was contrary to Ministry Standards of Conduct and the Human Rights Code. The letter of counsel followed.

The grievor testified that the accusation by management that she had engaged in racial profiling was abusive and malicious. It was a “horrible blow” to her. She explained that she had close and cordial relations with her niece’s fiancé who was of Muslim Arabic descent. She stated that management decided to use her as an example to make the statement that they will not tolerate racial profiling, and that they did that with no grounds and without understanding the implications.

Under cross-examination, it was put to the grievor that during her inquiry from Ms. DesRoches she highlighted the fact that the two sons had foreign last names. She stated that she did not recall doing that, but agreed that she could have done so. She also agreed that she asked about the need for contacting the authorities in those circumstances, and referred to an e-mail that directed that any suspicious or unusual activity be reported. The grievor denied under cross-examination that she mentioned anything about “terrorism” to the CSR. However, she recalled that when Ms. DesRoches subsequently met with her and a union representative, Ms. DesRoches stated that the CSR had reported to her manager that the grievor had used the word “terrorism”. She did not, however, recall Ms. DesRoches say that the CSR had reported that the grievor had to be suspicious because of the two dependents gender and last names, “because terrorism may be involved”, and that “Canadians are not aware of terrorism”. She denied making any such statements to the CSR. When asked what her response was when Ms. DesRoches put the CSR’s allegations to her, the grievor replied that she could not recall and added that the union representative was there specifically to take notes about what was stated by whom.

The letter of counsel dated August 23, 2002 also includes a direction to the grievor to refrain from any religious based invitations. Evidence was tendered with regard to the circumstances that led to that direction. The grievor testified in chief that Mr. Peter Daniels was a motivational speaker from Australia. He was a multi-millionaire, who normally charged in excess of $ 200.000.00 to speak, but spoke free of charge when speaking at a church. If anyone brought along a certain number of people to his speech, Mr. Daniels presented everyone in that group with a gold or silver coin. She testified that Mr. Daniels was scheduled to speak at her church in August 2002. She said that she felt it would be a good idea to invite people at work who may want to attend. She asked several people at work to attend, and told them that if they wished they could “check him out” at his web site before deciding. She testified that she popped into the office of the CSR Manager, Mr. Gary Norris. He was working at his computer. She said, “I advised him of the speaker and told him that he can check him out at the web-site if he wished. I said it’s a once-in-a-lifetime chance because Mr. Daniels had made it a point to not speak in the same area more than once. Mr. Norris asked me where it was taking place and I said it is at my church and that it is free, so there was no cost to him.” The grievor testified that if Ms. DesRoches had not been off on vacation, she would have left a message for her also.

The grievor testified that when she received the letter of counsel alleging that she was “inviting people to religious events”, she referred to management a pamphlet about the speaker which she had in her possession, which she said shows clearly that it was not a religious event. The pamphlet, depicts a photograph of Mr. Daniels and sets out the time and location of his speech. It is titled “Peter J. Daniels – From Despair … to Destiny”. The text describes Mr. Daniels’ background and how everyone had predicted a bleak future for him. Then the text reads:

But Peter J. Daniels proved them all wrong; for the last 30 years he has continued to confound the skeptics. He has succeeded in real estate and as an author. He has become one of the most sought after public speakers in the world today.

Peter Daniels believes that followers of Jesus Christ are destined for greatness. Though commonly speaking for fees of $ 200,000 in the corporate world, he now speaks at no charge to bless local churches.

The grievor testified that when she received the letter of counsel she felt that she was singled out. She named one co-worker who had told her about a speaker at her church, and named two others with whom she had discussions about churches.

She also filed a group of documents as evidence of “religious activity” that was tolerated, and even promoted, at the workplace. This exhibit consisted of the following:

• An e-mail dated October 11, 2002 from the Hamilton head office addressed to all subscribers requesting them to launch the “Christmas Dinner & Dance”.

• A similar e-mail dated October 16, 2002 requesting the launching of “the United Way Halloween Bake Sale.”

• An e-mail dated October 16, 2002 from Hamilton Head Office to all subscribers setting out “Christmas Dinner & Dance Invitation” as the subject and stating “Please launch the attached for best viewing results”.

• An e-mail dated October 28, 2002 with the subject as “Bake Sale – United Way”, and stating “Launch the attached for best viewing. Don’t forget Wed. October 30^th.”

• An e-mail dated November 14, 2002 with the subject “Festive Season Potluck Lunch” and stating “Please launch the attached for best viewing/printing”.

• An e-mail dated December 9, 2002 from Ms. DesRoches with the subject “Christmas Luncheon”.

• An e-mail dated December 12, 2002 from the Regional Director with the subject, “X’mas Cheer”.

• A leaflet advertising a musical presentation to be held at the grievor’s church, titled “All on A Christmas day”. The grievor testified that this was handed to one of her co-workers outside the office in a public area by some unidentified person.

• A leaflet announcing the office Christmas Luncheon on December 18, 2002 at $ 10 each. The grievor testified that she did not attend, fearing that her attendance will be in contravention of the direction she had received.

• An e-mail dated December 18, 2002 from the Communications and Marketing Branch stating: “Happy holiday to all staff of the Ministry of Community, Family and Children’s Services. It is our pleasure to extend to you and your families our warmest wishes for the holiday season. We hope that this special time brings you joy and happiness.”

• A Christmas card given to her in 2002 by a colleague. It had the words “A Christmas prayer”. The grievor testified that it was very nice of that colleague to make that gesture because it was a personal statement that she recognized the grievor’s religious beliefs.

• A Christmas card given by another colleague in 2002. It had a picture of 3 men riding on camels. The words “Joy to the World” was printed at the top. The grievor testified that the card was religious because the picture depicted the story of the three wise men’s visit to the new-born Jesus Christ and the words were directly from a Christmas song.

The grievor testified that in view of the direction in the letter of counsel dated August 23, 2002 “to refrain from any religious based conversations/invitations within the workplace”, she took steps to ensure that she complied. She advised co-workers not to have religious discussions if she was within hearing distance. She deliberately did not attend the office Christmas luncheon on December 18, 2002, because she concluded that it was a “religious invitation” and her attendance would result in a non-compliance with the letter of counsel.

The grievor stated that she was caught between wanting to be receptive to co-workers and not breaching the letter of counsel. She related instances where she was placed in difficult circumstances. She referred to the Muslim colleague who brought in baked goods the day after Ramadan and stated that she felt uncomfortable because her presence could have potentially breached the prohibition in the letter of counsel. She testified that she decided to eat her lunch alone at the workstation or outdoors, because of the fear that if she ate in the lunchroom, co-workers may have religious discussions and her presence would contravene the letter. She also decided not to participate in any event sponsored by the Office Social Committee, again because of fear of breaching the letter. She testified that while walking through the office she overheard two CSRs discuss religion at their workstations located right outside the offices of 3 managers. The same day there was a staff meeting of the case management team. Before the meeting had started, Ms. DesRoches, another ISS and herself were waiting for the others. She heard the ISS relating to Ms. DesRoches events about her children “which involved religious situations”. She felt very uncomfortable because of the prohibition in the letter. Later that day she met with Ms. DesRoches and the union President and sought advice on how to deal with situations when others have religious discussions in her presence. She asked whether she would be in breach of the letter and whether she was to “get up and leave”. The grievor testified that she could not recall what the response was from Ms. DesRoches or the union president, and that she had no notes on that.

The grievor testified about a further “religious discussion” she was exposed to near her work station on October 28, 2002. When asked what the religious discussion was, the grievor stated that a co-worker was relating to those present that although she was a Catholic her son was doing a school project about the Jewish religion. She stated that it was good for her son to learn about another religion and that she was doing a lot of running around to help her son complete the project. The grievor testified that she considered that to be a religious conversation and therefore felt concerned being present.

The grievor testified that she had similar concerns about the office events around Halloween in October 2002. She stated that Halloween was the holy day of the Wicca religion and for Satanists. Halloween according to her was “100 percent against Christianity and any other religion”. She further testified that at a staff meeting on October 28, 2002 Halloween events were mentioned. She approached the union and complained that she was “involuntarily put in a position to be involved in a religious conversation.” She stated that she had no notes and could not recall what response she received.

The union called another ISS, Ms. Hollis Olexi-MacPherson, to testify about her knowledge of the employer permitting religion at the workplace between December 2001 and December 2002. She testified that in general conversation employees in the office discussed religion freely. By way of example she said, “One will ask about another’s vacation plans and the response may be “I will be attending midnight mass.” We talk about food preparation and discuss ethnic recipes. Most of this takes place in the lunch room”. Ms. Olexi-MacPherson testified that the office social committee organized monthly luncheons. On months that include special days such as St. Patrick’s Day, Valentines Day, Easter, Halloween, Thanksgiving and Christmas, the event will have a theme related to that special day. She stated that there was no restriction on celebrating religious days. At Christmas for example, people were allowed to decorate their workstations, some using lights and small Christmas trees. She testified that in some years a competition was held to select the best decorated workstation, and Ms. DesRoches judged the winner. She also testified that she had never been directed by managers to refrain from religious conversations. She stated that she has had a 1½ inch tin Christian cross on her computer base. She had not been told to remove the cross. Under cross-examination, she stated that she did not know if managers had seen the cross, that no one had commented about it.

Mr. Gary Norris, the ISM in charge of CSRs testified that at monthly management meetings their was discussion relating to complaints by co-workers about the grievor’s inflexibility and lack of cooperation. He stated that the majority of the complaints came from CSR’s. There was a reluctance on their part to approach the grievor on work related issues and the managers were concerned that this would adversely impact upon service delivery.

Mr. Norris testified that employees had also brought to the attention of managers a feeling of discomfort about the prevalence of religious discussions in the workplace, particularly in the lunchroom. The managers were also concerned about presence of religious items at workstations because by then a new practice of interviewing clients at the employees’ desk had started. As a result, the management team decided to involve the union in dealing with this concern, by referring it to the Local Employee Relations Committee (LERC) of which Mr. Norris was the Management co-chair. The union co-chair Judy Debries agreed that a plan to deal with the concern should be reached through LERC. The issue was discussed at LERC at which point the committee was unsure about how to proceed. The committee sought input from local human resources, who in turn sought advice from corporate human resources. The advice received was that steps must be taken “to ensure that the workplace is a neutral setting”. Mr. Norris testified that the union LERC co-chair fully shared the management’s concern and was equally struggling trying to find a solution.

The evidence is that LERC minutes set out earlier in this decision were posted at the workplace and also electronically sent to all employees at the St. Catharines and Hamilton offices. Mr. Norris stated that the LERC members did not intend an absolute prohibition of religion in the workplace.

The evidence is that following the LERC process, managers were more vigilant about religious neutrality in the workplace. Besides that, the only follow up was a very general memorandum dated February 27, 2002 issued to all staff in Hamilton/Niagara Region reminding of the employer’s commitment to the Workplace Discrimination and Harassment prevention Policy.

Mr. Norris testified about the “religious invitation” incident. He stated that he was working in his office when the grievor walked in unannounced, and told him that she was offering him an invitation to a function at her church. She told him that a well-known speaker was speaking and that if she took 20 or more people to the event she would get a reward. He thought that she may have mentioned that he was a motivational speaker. He indicated he was not interested. He testified that the grievor stated that he should attend “because it will be good for you”. Mr. Norris stated that he politely declined. Then the grievor showed him a document with some words and a picture. He did not look at it but stated “No thank you very much”, and she left. Mr. Norris testified that when the grievor said, “it will be good for you” he understood her to be saying that he needed help. He felt very uncomfortable and mildly offended because the invitation was out of place and because of how the invitation was delivered. He felt he was trapped as she sat to his left with her elbows on the desk. He testified: “It was an aggressive invitation. Just because of the physical space. She was right there in my face”.

Mr. Norris testified that in this period the grievor’s direct manager, Ms. DesRoches was on vacation. Therefore, he convened a meeting a couple of days after the incident. Present were Mr. Norris, another manager Mr. Mark Granger, the grievor and her union representative Mr. Jim Wellington. At the meeting, Mr. Norris told the grievor that the invitation she had made to him at the workplace was inappropriate, that it made him uncomfortable and that he felt he was being recruited. He asked her whether she had invited others as well. She replied that she had. Mr. Norris told her that it was fine to invite anyone provided it is not done at the workplace. He told her that he will be putting a note in her file about the meeting. Mr. Norris testified that at the meeting he explained to the grievor that the direction was “that there was a need to ensure that the workplace is neutral. That she had to be sensitive to others’ thoughts about religion and to refrain from aggressively pursuing religious based invitations at work”. He felt that she understood the intention of the direction since she nor the union representative indicated otherwise. Mr. Norris testified that at that point the union representative Mr. Wellington asked whether “this was discipline’ and that he replied that it was not. Mr. Norris again described the invitation as “It was the aggressive manner in terms of physical space. Her words had a certain fervor. She said it will be good for me. She felt very strongly. It was the overall aggression and passion. It was not a passive invitation. It was very much in my face.” Mr. Norris testified that by directing her, his intention was to educate and inform the grievor and to ensure that she did not repeat it. It was not meant to be disciplinary. Mr. Norris testified that the note to file was intended to document the meeting. It reads:

Note to File:

Meeting in my office this date with Rosie [including local OPSEU Rep Jim Wellington at Rosie’s request] to discuss my concern around Rosie’s invitation to myself, [and other staff] to a recent event associated directly with Rosie’s church.

I advised Rosie that I was not comfortable with the “invitation” personally, and as a manager, my responsibility was to ensure that religious based conversations/invitations do not enter the workplace. I cautioned Rosie as to extending similar invitations to co-workers at the workplace or generating similar discussion [a caution which Rosie had received previously]. Rosie indicated that she had indeed asked other co-workers to the same event.

I advised Rosie I would place this note on her file.

Mr. Norris testified that he informed Ms. DesRoches about the invitation and the meeting, upon her return from vacation. He discussed with her, as well as with the management team, whether any further steps needed to be taken, in addition to his note to file. He also obtained input from human resources. The consensus was that the grievor’s manager should issue a letter of counsel. According to Mr. Norris the possibility of disciplinary action was discussed and ruled out. Instead, the consensus was that a letter of counsel with a goal to educate and inform the grievor would be issued. Mr. Norris testified that the Program Manager, Ms. June Livingstone was also consulted and she also agreed that a letter of counsel would be the appropriate action.

Mr. Norris also testified about a meeting he and Ms. DesRoches had with the grievor about the “racial profiling” incident. Both managers expressed at the meeting that labeling someone as suspicious based on their surname, gender and age was inappropriate. Mr. Norris testified that he may have first used the phrase “racial profiling” to describe the grievor’s conduct. According to Mr. Norris, the grievor’s response was one of defiance. She was taken aback that her actions were being questioned. More than anything, the grievor was upset that the CSR had complained to management rather than dealing with her directly. She questioned why management was getting involved. She expressed that she felt that her actions were appropriate because she had reasons to be suspicious. She did not dispute the information as to what she had told the CSR, but appeared not to get the message that concluding that someone was suspicious and that terrorism may be involved, based on that person’s surname, age and gender was not appropriate. Her main focus was about why the CSR went to management and the general concern about her relationship with CSRs. She expressed that the CSRs were attempting to undermine her.

Mr. Norris testified that the management team discussed about an appropriate response to the grievor’s conduct. The program manager and Human Resources Dept. were also consulted. They discussed various options including a suspension without pay and requiring the grievor to take courses on workplace sensitivity. However, the ultimate decision was to issue a letter of counsel which was not and would not be seen as discipline with the intention of informing and educating the grievor.

The Board heard the testimony of the CSR involved in the alleged “racial profiling” incident, Ms. Brenda Cirilli. She testified that she had a call from a client who informed that her two adult sons had left the home and requested that they be removed from the benefits unit. The client told her that she was calling because she could not write English. Ms. Cirilli took the information down and escalated it to the grievor, who as an ISS had the authority to do the change. Ms. Cirilli agreed that normal practice was to obtain a written request for changes. However it was not uncommon that clients would say they could not write English. The office protocol in such cases was to ask whether the client could get a friend to write out the information. However, that protocol did not apply in cases such as this one, where the information conveyed resulted in the reduction of the client’s benefit amount. In such cases receiving the information by telephone call was acceptable and in her experience ISS’s had acted on such information without insisting on a written request. Ms. Cirilli testified that later on the shift the grievor approached her at her work station and asked her whether she had received anything in writing from the client and Ms. Cirilli replied that she had not. Then the grievor asked whether Ms. Cirilli knew where the two dependent adult sons had gone. Ms. Cirilli indicated that the parents did not know, and asked the grievor why she wanted to know. Ms. Cirilli testified that in response, the grievor pointed to the last name of the client, which Ms. Cirilli described as “East Indian or of that nature”, and made reference to “9/11”, and the possibility that terrorism may be involved and commented that Canadians were not aware of terrorism. Ms. Cirilli understood from what the grievor said, that she was suggesting that the two sons may be involved in terrorism and that the authorities should be informed. Ms. Cirilli testified that she was flabbergasted and left speechless because the grievor was suggesting that someone ought to be treated differently because of their background, heritage and nationality. Ms. Cirilli was of the opinion that the office had no right to know where anyone removed from a benefit unit had gone. Ms. Cirilli testified that shortly after, Mr. Norris happened to walk by her workstation. She mentioned to him what had happened. Ms. Cirilli testified that Mr. Norris appeared to take the incident quite seriously. Ms. Cirilli told Mr. Norris not to pursue the matter because if he did, the grievor would make her life miserable and that she would not be able to work with the grievor.

The grievance dated December 13, 2002

This grievance raises three issues relating to the letters dated August 23, 2002 and October 16, 2002 respectively. First, whether either letter was disciplinary. The second issue is whether the letter dated August 23, 2002 constituted discrimination on the basis of the grievor’s religious beliefs in contravention of the collective agreement and the Human Rights Code. The only issue with regard to the second letter relating to the racial profiling allegation is whether or not it is disciplinary and if so whether there was just cause for it. I shall deal with the latter issue, together with the grievance dated February 7, 2002 because it is directly related to the issues raised in that grievance.

The third issue raised is whether the employer had engaged in a course of conduct, described by the union and the grievor as a constant barrage, which amounted to an improper exercise of management rights in violation of the collective agreement.

Whether the letters are disciplinary

Citing Re Toronto East General Hospital, 1989 CanLII 9391 (ON LA), 8 L.A.C. (4th) 391 (Springate) and Re Riverdale Hospital (2000) 93 L.A.C. (14^th) 195 (Surdykowski) union counsel argued that the fact that the employer labeled the letters as letters of counsel is not determinative of the issue. He emphasized that the impact of the letters on the grievor is what matters. He referred to the grievor’s testimony that she was deeply hurt by the chastisements contained in the letters. The letters, he pointed out, state that what the grievor did was objectionable. Moreover, they direct the grievor to comply. “What happens if she still did not comply?” he asked. Answering his own question he stated that the employer was going to “kick it up a notch” and discipline the grievor more severely. In these circumstances he urged me to find that the letters were not letters of counsel but disciplinary letters of reprimand. Their purpose, he said, was punishment and not guidance.

In Re Black 885/90 (Dissanayake), the issue before the Board was whether a memorandum issued to the grievor was disciplinary. A unanimous panel of the Board at p. 6-7 wrote:

In this case, the memorandum on its face is not disciplinary, in that it does not purport to punish the grievor for his conduct on March 21, 1990. The evidence about what occurred at the meeting clearly is that the employer expressed concerns about the grievor’s conduct on that day and explained to him that he should not engage in similar conduct in the future. The fact that the employer emphasized that any future incident of this nature will be considered insubordination and appropriate disciplinary action will be taken (a fact confirmed in the memorandum) by itself does not make the meeting or the memorandum disciplinary in nature. The memorandum was not placed it the grievor’s personnel file.

At p. 8 the Board observed:

While some employees, like the grievor, may not like verbal or written communication by supervisors about their conduct or performance, the employer does have the right to correct employees through guidance, counseling or even warning, without engaging in disciplinary action. The exercise of that right is to be encouraged rather than discouraged. On the other hand, the Board can understand the concern of an employee that a document may be used against him in future disciplinary situations despite verbal assurances to the contrary. This may well be possible if there is a turnover in management. The employer could probably have avoided this concern if it stated in the memorandum itself that it does not constitute discipline.

I have no doubt that the grievor was distressed that the employer saw fit to issue her the letters which were critical of her conduct. However, that cannot be and is not the test. Nor is the fact that the letters pointed out that the grievor’s conduct was inappropriate and directed her to conduct herself appropriately suggestive of discipline. The uncontradicted evidence is that in the presence of a union representative, the employer assured the grievor that the letters would not be disciplinary. Also uncontradicted is the fact that the letters were not at any time placed in the grievor’s personnel file. As far as the letter of counsel about racial profiling even the concern referred to by the Board in Re Black (supra) does not arise, because this employer did exactly what the Board suggested, i.e. stated in the document itself that it does not constitute discipline.

Certainly, if the grievor repeats the conduct which was the subject of the letters, the employer may take disciplinary action, as union counsel suggests. In that event the employer will be obligated to establish just cause in the event the discipline is grieved. However, that does not have any relevance to whether the letters are themselves disciplinary. The employer is entitled to initially attempt to correct an employees’ conduct in a non-disciplinary way. As the Board observed in Re Black, this is to be encouraged. If the non-disciplinary approach does not produce the corrective results, it is open to the employer to initiate a disciplinary response. The non-disciplinary directions, letters etc. will not form a step in the progressive discipline system, but may well serve to establish that the grievor was made aware of the employer’s expectations of the employee, should that be in issue.

With regard to the letter dated October 16, 2002, it is irrelevant whether the grievor or Ms. Cirilli was correct about the need for a written request in the particular circumstances. The issue is whether in dealing with the situation the grievor acted inappropriately. Ms. Cirilli clearly and unequivocally testified that the grievor pointed to the fact that the two dependents had foreign last names in referring to the possibility that terrorism may be involved. Ms. DesRoches testified to the same effect about her conversation with the grievor. In chief the grievor stated that she could not recall whether she referred to the dependents’ foreign last names in those conversations. Under cross-examination, the grievor again maintained that she could not recall whether she made reference to the last names. In light of that evidence, I find that the grievor did link the two individuals’ foreign last names to the possibility of terrorism. The grievor expressed that she was offended by the employer’s allegation that she had engaged in “racial profiling”. Whatever the grievor’s definition of ‘racial profiling” may be, I find that the employer was reasonable in concluding that it was inappropriate to consider in any manner the fact that a person had foreign last names in relation to any decision, and the employer was entitled to give directions to that effect. Even if I had found that the letter was a disciplinary letter of reprimand as the union claims, I would have held that there was just cause for such discipline.

However, I find that the two letters before me are clear examples of a non-disciplinary response by an employer. Therefore, the Board has no jurisdiction to embark on a just cause inquiry.

Improper exercise of management rights

The gist of the grievor’s allegation of “a barrage” is that she was constantly “hauled in” to the manager’s office as a result of complaints from the grievor’s co-workers against the grievor.

The evidence is that the bulk of these complaints came from the CSRs, who were managed by ISM Mr. Gary Norris. In his submissions union counsel put the total blame for the grievor’s difficulties on Mr. Norris. Counsel actually went further, and suggested that Mr. Norris was the mover behind the two letters of counsel. Counsel submitted that this fact was “obvious”. At another point he stated that this fact can be “inferred” from the evidence. Despite counsel’s suggestions, there is no evidence whatsoever to substantiate that. A number of CSRs testified at the hearing about the disputes they had with the grievor. During their cross-examinations, it was open to union counsel to question them about any role Mr. Norris may have played in their disputes with the grievor. He did not do so. Mr. Norris himself could have been cross-examined as to whether he did anything to incite conflicts between the CSRs who worked under him and the grievor. That did not happen either. The letters of counsel were signed by the grievor’s own supervisor, Ms. DesRoches. She also testified. If counsel was taking such a position, it was incumbent on him to pursue during the cross-examination of Ms. DesRoches and Mr. Norris, his point that although Ms. DesRoches signed the letters, Mr. Norris was somehow responsible for the action taken against the grievor. None of that happened. In those circumstances, there is no way the Board can make the implication union counsel suggests.

The Board did hear from several CSRs about the complaints they communicated to management about the grievor. It is not my mandate, nor my intention, to decide who was right in each of the situations. However, I generally observe based on the evidence, the following. In many cases the position taken by the grievor was “correct”. For example, she was “correct’ in refusing to sign a document for a CSR who approached her while she was on lunch break, even though that would have taken only a few seconds. She was also correct for example in emphatically letting CSRs know that their role was to collect the necessary information and pass it on to her, that it was her responsibility to make decisions based on that information, and that she was not obliged to discuss the issues with any CSR. Generally, it is also the case that in the event of a disagreement, the grievor’s decision would prevail over the CSR’s, subject of course to intervention by management. However, the evidence clearly indicates that by taking a very formal approach to her dealings with the CSRs, friction gradually developed between the CSRs and the grievor. The CSRs viewed the grievor to be inflexible, uncooperative and unfriendly. They felt that the grievor was wielding her authority to put down the CSRs. Two CSRs testified that the grievor went out of the way to put the CSRs “in their place”.

It is fair to conclude from the evidence that as a result, the CSRs in question took the opportunity to complain to management about anything they perceived to be improper conduct, or failure to follow protocol, on the part of the grievor. The evidence is that when complaints were received, management met with the grievor to discuss the complaints with her. This is what the grievor calls “a barrage” and “being hauled in”, and what the union submits is an improper exercise of management rights.

During the grievor’s testimony her real concern in this regard became evident. It was the grievor’s belief that management should have directed any CSR who came with a complaint to settle that directly with her. The grievor felt that managers should not have got involved. She felt that by meeting with her each time a complaint was received, the CSR’s were encouraged to file more complaints.

Counsel cited to me numerous legal authorities on the issue of management rights including Re Bousquet, 541/90 (Gorsky), where the issue is dealt with as to whether a mere bad faith exercise is sufficient to ground a violation or whether the grievor is obliged to establish that such exercise had compromised a collective agreement right. It is not necessary for me to deal with those legal authorities because on the basis of the evidence I have concluded that the employer did not act in bad faith in dealing with the situation it faced. The union has not suggested that any collective agreement right of the grievor had been denied or compromised as a result.

I have already noted my conclusion that the employer was not in any way guilty of inciting complaints by CSRs against the grievor. The evidence, however, is that the employer did receive such complaints regularly. It was evident from the testimony of the employer witnesses, that the managers were distraught that they had to regularly deal with these complaints. It was clear to me, that they would have preferred not to have received such complaints. Both Ms. DesRoches and Mr. Norris testified that they had to spend a significant amount of their work time to deal with these conflicts between the grievor and her co-workers. That took them away from other work priorities they had as managers, which in turn adversely affected the operation.

Nevertheless, the uncontradicted fact is that these complaints were received. When faced with constant complaints about one employee from her co-workers, the employer could have ignored the complaints and done nothing. Instead, the employer decided to deal with the complaints. The grievor suggests that the employer should have instructed the complainants to settle the issues directly with the grievor. The issue is not whether employer adopted the correct option or even the most reasonable option. The issue is whether the employer acted in good faith in tackling the situation it was faced with. I conclude that the employer’s conduct was not only undertaken in good faith, but also was reasonable in the circumstances.

It must be noted that the co-workers’ complaints against the grievor all related to work issues and processes. They were not personal issues. Therefore, it is in the employer’s interest to make sure that work issues and processes are being properly conducted. It is not reasonable to expect the employer to simply ignore such complaints because those issues are directly related to and can impact on service delivery. If the employer is to deal with the complaints, it is reasonable that the employer meet with the grievor to get her side of the story. If it did not, it is vulnerable to accusations that the grievor was not afforded an opportunity to respond to allegations made against her. Very importantly, there is no suggestion and no evidence that the grievor was mistreated at the meetings in question. Nor is there any evidence that the employer took any action against the grievor following the meetings. For example, no discipline was imposed. The alleged “barrage” is the mere fact that the employer met with the grievor. In fact the evidence indicates that in some instances the CSR’s allegation was found to be clearly unfounded and the grievor fully vindicated following her explanation. For example, in one instant it was concluded that the CSRs complaint about the protocol followed by the grievor was made because she was not aware of a recent directive issued by management. I have set out earlier in the award examples of meetings called by the employer which successfully resolved the situation. In one case, Ms. DesRoches admitted her mistake and the grievor’s position was upheld. In the other, the CSR and the grievor resolved amicably to work with each other professionally. This would not have happened, had the employer not intervened.

No doubt, the grievor would have preferred that the employer did not “get involved” and simply instructed the complainants to deal directly with the grievor. Except perhaps in the most collegial and peaceful of workplaces, it is not reasonable to expect that an employer will direct that employees settle their work related disputes among themselves. In the circumstances of the relationship that existed between the grievor and the co-workers who were complaining, such a course of conduct could potentially be disastrous. It certainly cannot be said that this employer was unreasonable in not following such a course. I have no basis to conclude that by meeting with the grievor about complaints made against her, the employer was contributing to a poisoned work environment. To the extent a poisoned environment existed, the employer is not to be blamed for it.

In summary, the evidence does not substantiate a bad faith, or even an unreasonable exercise of its management rights.

Discrimination on the basis of religious belief

The allegation in these grievances is that the employer contravened article 3.1 of the collective agreement by discriminating against the grievor on the basis of creed. That provision reads:

3.1 There shall be no discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 19(1) of the Ontario Human Rights Code (OHRC).

The violation is said to have occurred as a result of the verbal directions the grievor received following the December 11, 2001 pen incident, and the letter of counsel issued in August 23, 2002. The parties took extremely opposite views of the extent of the direction given to the grievor. The grievor and the union take the position that the grievor was placed under an absolute prohibition against handing out pens with religious scripture attached. The union points out that such a prohibition was placed only on the grievor and that the employer permitted other employees to engage in religious activity at work and in fact encouraged such activity by managements’ participated in those. The union goes even further to submit that the employer itself engaged in religious activity and invitations at the work place. Thus the union submits that the grievor was singled out for differential treatment.

The employer on the other hand takes the position that there was no absolute prohibition placed on the grievor. Instead the only direction was that the grievor should be careful about who she hands out the gifts to, because some may be offended by that. The employer also submits that the grievor was not treated any differently relating to religious activity in the workplace.

The grievor’s testimony in chief with regard to the verbal direction was that Ms. DesRoches told her that she could continue to give pens as gifts, but not with scripture attached. This evidence was not challenged during the cross-examination of the grievor. However, Ms. DesRoches testified that her direction was to the effect that “she had to be extremely careful who she hands these gifts to because some may be offended.” When employer counsel asked “Did you advise her she was not allowed to hand out the pens at all?”, Ms. DesRoches replied “No. I said be careful who you hand out these pens to.”

Evidence was tendered about the letter of counsel dated August 23, 2002, which directed the grievor “to refrain from any religious based conversations/invitations within this workplace.” The grievor testified that the direction was clear to her, that any religious conversations or invitations were not allowed. She therefore saw no need to seek clarification. Ms. DesRoches testified that she was of the opinion that by handing gifts with tags containing scripture, the grievor was engaging in a form of preaching and attempting to convert the recipients to her religion. She saw the grievors invitation to Mr. Norris as “her way of getting people to come to her church”. Mr. Norris similarly was of the view that by inviting him to hear the speaker, she was attempting to attract him to her church. She attempted to convince Mr. Norris to attend by asserting that he stood to gain by attending her church. Ms. DesRoches testified that with regard to religious invitations also, the direction she made in the letter of counsel was to the effect that she should be careful who she extended invitations to.

Under cross-examination Ms. DesRoches testified that upon receiving the complaint about the grievor handing out pens with scripture, she sought advice from the Human Resources Consultant, Mr. Kevin Smith. His advice, according to Ms. DesRoches, was that “the complaint had to be dealt with and that the handing out of the pens needed to be stopped” in view of the decision reached through the Local Employee Relations Committee. Ms. DesRoches stated under cross-examination that 99 percent of the time managers heed the advice of Human Resources Consultants. When asked why she merely directed the grievor “to be careful”, when the advice she received was that the handing out of the pens should be stopped, she replied that she did not see any harm in the grievor handing out such gifts to her friends. She said that she followed the advice “with a slight softening of the message”.

On the basis of the evidence I conclude that the direction conveyed to the grievor on December 11, 2001 and the direction reasonably understood by the grievor was to the effect that at the workplace she was no longer allowed to handout pens with scripture attached. That is more consistent with the totality of the evidence. Ms. DesRoches believed that the grievor was engaging in preaching and converting by handing out scripture. Preaching and converting would be directly contrary to the policy of neutrally jointly endorsed by the union and employer through the LERC process. Ms. DesRoches’ own testimony was that 99.9% of the time she followed the expert advice of the Human Resources Consultants. The evidence is clear that the Human Resources Consultant’s clear advice to Ms. DesRoches in this instant was that the grievor’s handing out of pens with attached scripture must be stopped. To direct the grievor that she could continue to hand out the pens provided she is careful who she hands them to, is not a “slight softening” but a significant deviation from that advice. I find that the direction verbally issued to the grievor on December 13^th 2001 was to the effect that she could no longer handout pens with scripture attached as gifts at the workplace.

The grievance relating to the verbal direction against handing out the pens was filed on February 2002. Subsequently on August 23, 2002, the letter of counsel was issued directing the grievor “to refrain from any religious based conversations/invitations”.

In chief, Ms. DesRoches was asked what she intended by the direction in the letter of counsel. She replied, “To refrain from handing out scripture, making religious based invitations. That in her conversations she should be careful, especially in the lunch room.” She testified that the direction was repeatedly explained to the grievor subsequently. During her testimony, Ms. DesRoches stated that on October 15, 2002 she realized for the first time that by focusing on the word “any” in the letter of counsel, the grievor was interpreting the direction in a manner not contemplated by her. The grievor had told Ms. DesRoches that she removed herself whenever other employees were discussion anything to do with religion, fearing that by remaining she would be in violation of the letter. Ms. DesRoches testified that she had not intended such a direction. Employer counsel asked Ms. DesRoches whether she explained to the grievor to that effect. Ms Desroches replied that she did not, that she needed “time out” to talk to some people about how the grievor was interpreting the letter.

As with the verbal direction about the pens, the evidence does not establish that the employer took any steps to amend or qualify the clear direction in the letter of counsel that the grievor was “to refrain”. While Ms. DesRoches may only have intended to direct that the grievor be careful, that is not what the letter set out. She did not clearly convey its real intention, if indeed that was the case, even after she became aware of the grievor’s broad interpretation of the written words.

Having said that, however, it must be immediately noted that I find on the evidence, that the interpretation placed on the letter by the grievor was not genuine or sincere either. I find that she adopted an unreasonable and even nonsensical definition of religion. I find further that the grievor was very displeased about the directions she had received. I am satisfied that the grievor used the letter to retaliate against the employer, particularly Ms. DesRoches.

That is the only conclusion I can reach in the face of the evidence. The grievor had felt, and had explicitly verbalized that the employer’s direction amounted to an attack on Christianity. She had vowed to Ms. DesRoches that she “would not allow Christianity to be slammed” and that she would not let this matter drop. She had stated that she knew that by fighting this issue she stood to lose her job, but that she was prepared for that. She sought no clarification of the direction, but used the word “any” in the letter to place an extremely broad interpretation and embarked on a deliberate course of retaliation against the employer. She did that in two ways. Based on her interpretation of the direction she received, the grievor refused to participate in office activities on the grounds that her participation would result in her flouting the employer’s direction. Secondly, she constantly complained to the employer about what she claimed were instances of her co-workers engaging in “religious based conversations and invitations”. Some of those have been described previously in this decision. To illustrate, she avoided going to the lunchroom, she testified, because she was afraid that if other employees talked about religion within earshot, she would be contravening the letter of counsel by having overheard that conversation. If she heard two co-workers discussing something which was religious according to her own interpretation, she would tell them not to do so within her hearing range because she did not want to be in violation of the employer’s direction. She refused to attend office social events in which managers also participated, such as Christmas and Halloween lunches. She testified based on her research that Halloween was a religious event. She testified that Halloween was 100 percent against Christianity and therefore contrary to her religious beliefs. Here insincerity in this regard is obvious because the uncontradicted evidence is that for years the grievor had participated in office Halloween events willingly. Among her complaints of inconsistent treatment were the following: the employer allowed her co-workers to wear crosses on a chain around their necks, or angel pins on their lapels and one employee was allowed to have a screen saver depicting serene scenery with mountains and meadows. The grievor testified about objectionable “religious based conversations” that were tolerated in the workplace. Among the examples she cited were: a co-worker who arrived late for a meeting explained that her daughter was doing a school project on religions and that she had some running around to do to help the daughter make a Jewish cake; and on another occasion a co-worker told her that one of the clients had taken up scientology. In the grievor’s view the use of the words “religious” and “Jewish cake” in the one case, and the use of the word “scientology” in the other, made those “religious based conversations” of the type she was directed to refrain from.

I find that the grievor used the employer’s direction to her to get back at the employer. It appears that her strategy had the desired effect. It was evident that the employer, Ms. DesRoches specifically, was driven to the point of exasperation having to deal with a deluge of complaints from the grievor of alleged “contradictions”. In fact, Ms. DesRoches sought and received a transfer out of that particular office. While the grievor did raise petty issues as contradictions, some of the other examples put forward by the union, may be reasonably seen to be inconsistent with the prohibition placed on the grievor, even based on a more reasonable interpretation of that prohibition. If in fact the grievor had been simply cautioned to be careful about who she engages in religious based discussions and invitations the situation would have been very different. However, even though Ms. DesRoches may have subjectively intended to communicate such a direction, for reasons I have set out, I have concluded that that was not the direction issued. I do find that some of the activity that the employer tolerated in the workplace, and some in which the employer was a participant and even initiator, may well be inconsistent with the direction issued to the grievor. I will not, however, deal with such examples in any detail or make definitive findings, because a finding that the grievor was subjected to differential treatment does not determine the grievance. The grievances can succeed only if such differential treatment was on the basis of a protected ground, i.e. the grievor’s “religion”, which both parties agreed is part of the phrase “creed” contained in the collective agreement and the Human Rights Code.

On a careful review of the evidence, the submissions of counsel and the legal authorities cited, I have concluded that the union has failed to establish that the grievor was subjected to discrimination on the basis of her religious beliefs. As far as the grievance dated February 7, 2002, relates to the pen incident, my conclusion was that in response to the complaint from a co-worker, the employer directed the grievor that she was no longer permitted to hand out that type of religious gifts. Such a prohibition against handing out gifts of a religious nature at the workplace, in my view, does not constitute discrimination on basis of religion or creed.

In Re Hendrickson Spring (2005) 2005 CanLII 94140 (ON LA), 142 L.A.C. (4th) 159 (Haefling), the arbitrator discussed the extent to which religious freedoms and practices are protected under the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. In so doing, he discussed a significant decision of the Supreme Court of Canada as follows:

The recent case of Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 241 D.L.R. (4^th) 1, 2004 SCC 47 (Can LII0, a decision of the Supreme Court of Canada, contains a useful discussion of what may be considered as the boundaries that separate the religious and secular or civil spheres. In that case, the Court was confronted with a religious issue concerning a prohibition by a condominium corporation that forbade several unit owners of the Orthodox Jewish faith from setting up on their balconies a small, tent-like structure (“succah”), to be used as a temporary dwelling as part of a form of religious observance associated with what is called the Festival of Tabernacles. In reading the decision that the condominium corporation’s prohibition breached the appellants’ rights of religious freedom, Justice Iacobucci wrote for the majority of the Court (as outlined below) and in so doing endeavored to define and explain what is meant by “religion” and, thus, what it is that is protected by the principle of freedom of religion (at para. 39):

In order to define religious freedom, we must first ask ourselves what we mean by “religion”. While it is perhaps not possible to define religion precisely, some outer definition is useful since only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held are protected by the [Charter] guarantee of freedom of religion. Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.

While the decision of the majority in Amselem recognizes a distinction between religious and civil or secular matters, that approach was given even stronger voice by Justice Bastarache who wrote as follows in the minority judgment in the same case (at para. 135):

… this Court has interpreted freedom of religion as protecting both religious beliefs, which are considered to be highly personal and private in nature, and consequent religious practices. However, a religion is a system of beliefs and practices based on certain religious precepts. A nexus between personal beliefs and the religion’s precepts must therefore be established. … Religious precepts constitute a body of objectively identifiable data that permit a distinction to be made between genuine religious beliefs and personal choices or practices that are unrelated to freedom of conscience. Connecting freedom of religion to precepts provides a basis for establishing objectively where the fundamental right in issue has been violated. By identifying with a religion, an individual makes it known that he or she shares a number of precepts with other followers of the religion. The approach I have adopted here requires not only a personal belief or the adoption of a religious practice that is supported by a personal belief, but also a genuine connection between the belief and the person’s religion. In my view, the only way the trial judge can establish that a person has a sincere belief, or has sincerely adopted a religious practice that is genuinely connected with the religion he or she claims to follow, is by applying an objective test. It is one thing to assert that a practice is protected even though certain followers of the religion do not think that the practice is included among the religion’s precepts and quite another to assert that a practice must be protected when none of the followers think it is included among those precepts. If, pursuant to s. 3*, a practice must be connected with the religion, the connection must be objectively identifiable. *Charter of Human Rights and Freedoms, R.S.Q., c. C-12.

Lastly, to return to the judgment of the Court majority, the Supreme Court of Canada in the passage below from Amselem appears to confirm that the individual character of religious experience is what freedom of religion named in the Charter aims at protecting (at para. 47):

… this freedom encompasses objective as well as personal notions of religious belief, “obligation,” precept, “commandment,” custom or ritual. It is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection. An inquiry into the mandatory nature of an alleged religious practice is not only inappropriate, it is plagued with difficulties.

Applying the principles in the Amselem Case to the evidence before him, at p. 170 the arbitrator observed:

The motivation for those community service activities and practices in the grievor’s case no doubt originates from his own deeply held personal religious beliefs. However, as the Amselem case earlier referred to clearly serves to indicate, it is only actual religious exercises and practices that are part of religious observance and worship that are to be deemed to be protected.

The principles and reasoning of the Supreme Court of Canada apply in interpreting the instant collective agreement and the Human Rights Code of Ontario. The grievance of February 7, 2002 stems directly from the direction that the grievor was directed that she was not to hand out pens with scripture attached. The union’s position was that the denial of that right was a direct discrimination, i.e. a prohibition imposed only on the grievor. The union pointed to instances of tolerance of religious activity by others as evidence of differential treatment. However, the difficulty with the grievance is that the right the grievor was denied, the right to hand out religious based gifts at the work place, is not one protected by the prohibition against discrimination on the basis of religion. Union counsel submitted that the grievor had extremely deep religious convictions that she could not separate her religious beliefs from any aspect of her day to day life. That may well be so. Therefore, she may have been devastated by the employer’s direction. However, while the ability to hand out religious gifts may be considered extremely important by the grievor, there is no evidence whatsoever that such ability forms any part of her religion of a Born again Christian, or of any other religion. The right to hand out religious gifts to co-workers in the workplace is not rooted in any religious belief or practice. Therefore, I conclude that by denying that right, the employer did not discriminate against the grievor on the basis of religion or creed.

The same considerations apply with regard to the direction “to refrain from any religious based conversations/invitations” within the workplace in the letter of counsel. I will not embark on an analysis of which of the numerous situations fell within or outside the scope of a reasonable interpretation of the direction contained in the letter. That is not necessary in light of the finding I make that regardless of the true extent of the direction, the activity prohibited by the letter was not “protected”. See, the authorities Re Amselem and Re Henrickson Spring. The right to make religious gifts, make religious invitations or engage co-workers in religious conversations in the workplace is not part of the grievor’s religion. It is, based on the evidence, nothing more than a deeply held personal desire by the grievor that she should have those rights. However sincere and deeply held those desires may be, and regardless of the extent of upset caused by the denial of those rights, such denial does not constitute discrimination on the basis of creed or religion.

In summary, I conclude that the verbal direction on December 13, 2001 nor the directions contained in the letters of counsel resulted in discrimination on the basis of a prohibited ground. Therefore, no violation of article 3.1 of the collective agreement or of the Human Rights Code has been established. I further find that the employer’s exercise of its management rights were undertaken in good faith to deal with issues that arose at the workplace and no violation of the collective agreement is substantiated. Finally, I have concluded that the two letters were not disciplinary. Therefore, the Board has no jurisdiction to embark on an inquiry into just cause.

For all of the foregoing reasons, both grievances fail and are hereby dismissed.

Dated this 10^th day of October, 2006 at Toronto, Ontario.