minicounsel

GSB#2012-1931

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Egesi)

Association

and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

James McDonald Sack Goldblatt Mitchell LLP Barristers and Solicitors Counsel

FOR THE EMPLOYER

Peter Dailleboust Ministry of Government Services Legal Services Branch Counsel

HEARING

March 21, July 31, August 1 & 22, 2013

Decision

1By letter dated June 13, 2012, following a period of some nine months on suspension with pay, Karen Egesi (sometimes referred to herein as the “complainant”) was discharged from her employment. She had been a staff auditor in the Ontario Internal Audit Division (“OIAD”) of the Ministry of Finance. Her formal title was that of “Risk and Assurance Consultant”.

2In their opening statements, both parties acknowledged that the complainant was a capable auditor and that there were no issues with respect to the quality of her work performance. Her discharge is not directly related to the performance of her duties, per se.

3However, while the essential facts of the case are, in large measure, not in dispute, issues regarding the proper characterization of the complainant’s conduct, intention and motivation invite a more nuanced assessment.

4The complainant commenced her employment in the OPS in March 1999. She is of African descent and, perhaps early in her tenure, came to the conclusion that serious issues of racism permeate the OPS. That view appears to have continued even after her termination and at the hearing before me. It is beyond the scope of this decision to determine whether and to what extent her beliefs are well-founded. No one challenged the sincerity of those beliefs and there can be little doubt that issues and instances of racism continue to persist within the OPS, as they do in the larger community beyond. Again, however, it is beyond the scope of this decision to determine the extent of the problem or the success or failure that may have attended any efforts to curtail it. I also note that the instant case was treated by all as one in which the only issue was one of just cause for discharge. There were no specific allegations of prohibited discrimination related to the complainant’s termination. It was, however, her conduct in pursuing what she saw as her efforts to address and remediate issues of racism that led to the employer’s disciplinary response. And, as will be seen (by way, perhaps, of an initiation to the levels of nuance the case necessitates) it was not the fact that the complainant undertook her mission which gave rise to her termination. Rather, it was the manner in which she pursued her goal which precipitated the ultimate response.

5If there is a “smoking gun” in this case, there is no doubt that it is an email sent by the complainant on September 15, 2011. I will set out this email and very briefly summarize some of the events that followed. I will then proceed to outline the background and events which led up to the email and will then review the subsequent events in some more detail. Most of the evidence in this entire recitation is drawn or reproduced from a lengthy documentary trail, emails to and from the complainant. This correspondence provides a rich source of information and context. Indeed, it also provides a largely objective record of what was communicated by and to Ms. Egesi. The viva voce evidence of the principal email correspondents – Ms. Egesi and Mr. McCay – added nuance to this record and I will review the relevant contributions that testimony provided to the evidentiary mix later in this decision.

The paper trail

6The subject line of the email read as follows:

Government of Ontario Botches Case and Fails to File Defence for Regulatory Negligence in Practising and Promoting Racism – Found in Default in Landmark Civil Suit Claiming $3,000,000,000 … Scuttles To File Motions

7On its face, the email was addressed to the government lawyer who had carriage, on behalf of the Crown, of the civil proceedings the complainant had commenced in the Superior Court of Justice. The text of the email was as follows:

You have threatened me with legal costs, but tonight, depending on whether I hear from you or not, by 4:30 p.m. today, I will be driving traffic to my website with appropriate Google ads based upon key words designed to attract Government of Ontario traffic. I will also be driving traffic to my website through advertisements in local and national newspapers. Visitors to my website will be able to contribute to my legal costs and read the statement of claim and other filing [sic], etc.

Visitors to my website will also be able to contribute to help those affected by the Bashar al-Assad regime in Syria.

You mention that you would prefer to deal with my lawyer; my lawyer will handle the settlement negotiations. If I hear from you with a request to settle, I will then treat all communication as confidential and my lawyer will negotiate on my behalf. This is a unique opportunity for the Government of Ontario to settle this long outstanding case and get on with its business.

As a concerned citizen, I am going to copy appropriate persons within the Government of Ontario who, as a concerned citizen, I feel should be informed of this case.

I will also be considering my option of filing a motion to obtain judgement due to the opportunity created by the Government of Ontario’s default.

8Ms. Egesi’s declared intention to “copy appropriate persons within the Government of Ontario … as a concerned citizen” was, in fact, operationalized with the very sending of the email. Whether this was done, as asserted “as a concerned citizen” is a question to which we shall return. Although, on its face, the email was directed only to government counsel, the communication was also simultaneously forwarded, by way of blind copies, to a number of other individuals: Warren McCay, the Director of the Education Audit Service Team in the Ministry (Mr. McCay was the sole employer witness in the proceedings before me) and to other more senior government officials: the Secretary of Cabinet, the Associate Deputy Minister for Human Resources, the Deputy Minister for the Attorney General, the Deputy Minister of Government Services and the Deputy Minister of Finance.

9Whatever this communication may or may not have contributed to the litigation efforts, it brought a swift response on the employment front. On the very same day the email was sent, Mr. McCay suspended the complainant, effective the following day. The suspension was:

…pending an internal investigation into allegations of inappropriate conduct including but not limited to, using inappropriate channels and inappropriately copying additional recipients to communicate issues relating to diversity, discrimination and or harassment despite being directed not to do so.

10Ms. Egesi, by a further email that same day, immediately protested and asserted her innocence of any wrongdoing. I will return to the text of that correspondence later. For the interim, I simply note that from that day until she testified before me, almost two years later, that email constitutes the sum total of any response or commentary the complainant ever offered to the employer with respect to the events in question. Despite multiple opportunities and numerous invitations from the employer to review the matter (with Association representation, if desired), the complainant consistently and steadfastly declined to engage in any dialogue with the employer about the matter.

11The suspension that was imposed on September 15, 2011 was with pay. And although it was initially imposed for a period of only 20 days, it was subsequently extended (more than once) and, ultimately, continued as a suspension with pay for some nine months until Ms. Egesi was discharged from her employment on June 13, 2012. The text of the letter of termination, issued by Mr. McCay, read as follows:

On September 16, 2011 you were suspended from duty with pay pending an investigation into allegations involving, but not limited to, the inappropriate use of I&IT resources. You were directed to attend scheduled [sic] on January 17, 2012 and February 14, 2012 to discuss the findings of the investigation and to provide you with the opportunity to respond to any allegations of wrongdoing. You advised me via email on both occasions that you would not be attending the meeting.

On March 5, 2012, you were provided with an opportunity to respond in writing to the findings from the investigation. To assist you in this endeavour, a summary of the findings was sent to you requesting your response by end of business day on Monday March 12, 2012. You provided no response. As such, I had to proceed based on the information available to me.

In a letter to you dated March 16, 2012, you were advised that I had accepted the findings of the investigation and had concluded that the allegations were substantiated. Specifically, I have concluded that you:

Used government I&IT resources to send a scanned copy of the Statement of Claim related to your personal litigation issues to your email account on September 15, 2011;
Logged into your Hotmail account using your government computer on five occasions on September 15, 2011. You edited and sent emails, including sending an email to several senior government officials pertaining to your personal litigation issues;
Stored 9 documents on your government computer related to your personal litigation issues. These documents included your Notice of Claim, Statement of Claim to the defendants, and Requisition to Note in Default;
Accessed various documents related to your personal litigation issues on your government computer on sixteen occasions between August 15, 2011 and September 15, 2011.
Conducted Google searches using government I&IT resources on September 15, 2011 that were not related to government business.

As such, you have used government I&IT resources for personal use without management approval. Furthermore, you have used these I&IT resources for personal gain. This conduct is in violation of the OPS Acceptable Use of Information and Information Technology (I&IT) Resources Policy.

As indicated in the March 16, 2012 letter, I provided you with an opportunity to provide any additional information or mitigating factors you wished me to consider in writing before I decided on what, if any, disciplinary action would be taken. Your written response was required by end of business day on March 23, 2012. I also asked you to contact me immediately if you preferred a face-to-face meeting so I could make the necessary arrangements. You did not contact me nor did you provide a written response. Therefore, I have made my decision based on the information currently available.

On February 11, 2010, you were suspended without pay for 10 business days for conduct related to the inappropriate use of I&IT resources including the inappropriate channels used to communicate your allegations of racism. Since this time, you have continued to fail to follow management’s direction and in my view have become ungovernable. Subsequent to this suspension you directly enquired with me about your ability to file a civil claim against the Ontario Government. In my response I was clear about restrictions in respect of Government’s I&IT resources:

All OPS employees are regularly reminded about the appropriate use of government IT resources. A pop-up message titled “Notice of Restrictions on the Use of Ontario Government I&IT Resources” appears regularly upon log-in that prompts employees to acknowledge that they have read this notice, are aware of the terms and conditions and have been provided with access to the governing policies before they can log in. This message and the associated policies clearly indicate that Government of Ontario IT Resources are to be used exclusively for government business, unless otherwise approved by your manager. This includes computers, laptops, e-mail, internet, intranet, extranet, personal digital assistants etc. In addition, under the I&IT Operating Procedure for Use of I&IT Resources, unacceptable use of I&IT resources includes sending e-mail messages which discredit the government or other OPS staff or include the use of unprofessional content.

Despite this clarification, you engaged in the above noted conduct on September 15, 2011. As an employee of the Ontario Public Service and as a Risk and Assurance Consultant with the Ministry of Finance, your behaviour, conduct and integrity in the workplace must be beyond reproach.

In reviewing the matter, I have considered all of the relevant information and evidence available to me, as well as your years of service, your employment history, and the nature of the work required for your position. I have also noted that you failed to cooperate throughout the investigation, ignoring numerous requests for information and declining to meet with the Employer at their direction on multiple occasions.

Therefore, having carefully reviewed all of the information surrounding your actions, I have concluded that your conduct is inconsistent with the duties and trust required for a Risk and Assurance Consultant with the Ministry of Finance. I consider your conduct a serious and fundamental breach of trust, and I find that the employment relationship has been irreparably damaged. Accordingly, by the authority delegated to me under Section 44 of the Public Service of Ontario Act, 2006, I hereby dismiss you for cause in accordance with Section 34 of the Act, effective immediately. Should you disagree with my decision, you may file a dispute as per the provisions of Article 15 of the AMAPCEO Collective Agreement.

12As indicated earlier, the essential facts of this case are largely undisputed. The Association agrees that the complainant did in fact engage in the specific conduct enumerated in the bulleted portions of the termination letter. Notwithstanding that concession, the Association argues that no discipline is warranted for that conduct or, alternatively, even if some discipline was warranted, discharge was an inappropriate and excessive penalty in all of the circumstances.

13The complainant had been previously disciplined for conduct which might well be characterized as similar. On February 11, 2010 she received a 10-day suspension without pay. The text of the letter imposing that suspension read (in part) as follows:

…you have used inappropriate channels in communicating issues relating to diversity, discrimination, and/or harassment. In addition, you have inappropriately copied additional recipients on emails despite being directed not to do so.

In a letter of counsel dated March 24, 2009, you were given clear instructions to follow the appropriate channels in communicating to senior OIAD leadership any issues you may have relating to diversity, discrimination and/or harassment. In blatant disregard of the expectations laid out in the letter of counsel, you sent 5 emails on July 23, 2009 containing content related to what you describe as OPS racist hiring practices, with 3 of those emails blind carbon copied to …. [the] ADM, Ministry of Education, Training, Colleges and Universities, .. [the] Secretary of Cabinet, [the] DM, Ministry of Government Services and members of the Education Audit Service Team.

14That suspension was the subject of a dispute which was dismissed by this Board (differently constituted) in a decision dated February 8, 2011 (GSB File No. 2007-0011). More than once, the complainant failed to attend at the hearing in that matter.

15The employer relied upon the disciplinary record in determining to terminate the complainant’s employment. Strictly speaking, the disciplinary record in this case appears to be limited to the 10-day suspension just referred to. A review of the Board’s decision in that matter indicates that, in addition to the conduct which gave rise to that discipline, the theme of the complainant’s failure to cooperate in the processes surrounding her employment issues is not a new one. The letter of counsel referenced in that suspension is, presumptively, non-disciplinary. However, while it was not filed in evidence before me, it does appear to relate to conduct not entirely dissimilar to that which gave rise to both the prior suspension and the ultimate termination.

16Indeed, while the complainant’s disciplinary record is comprised of the prior suspension, both parties, with few, if any, objections from the other, called evidence regarding the long history of the complainant’s workplace dissatisfactions. While I recognize that, certainly for the purposes of assessing the quantum of appropriate discipline, if any, the “record” consists of a 10-day suspension, I am satisfied, as the parties were, that some appreciation and even a cursory review of this history provides a useful context for understanding the background of events which culminated in the termination. I will therefore, in a succinct manner, provide a skeletal overview of events dating back several years which culminated in the event giving rise to the 10-day suspension.

17The complainant was transferred to Mr. McCay’s branch in or about the spring of 2005. However, as a result of a prolonged absence due to health-related issues, she did not commence actively working under Mr. McCay (who was, in any event, not her direct supervisor) until May of 2006. From Mr. McCay’s perspective, there were no significant difficulties involving Ms. Egesi until, what he described as a “sea change” which began in or about January 2009. However, despite that perception, there clearly were ongoing issues which stemmed from or originated in events which pre-dated the complainant’s arrival in (or return to, as the case may be) Mr. McCay’s branch. It appears that there had been a Workplace Discrimination and Harassment (WDHP) complaint initiated by Ms. Egesi which resulted in a report sometime in 2005. It also appears that the report did not fully resolve the matter. But in April of 2007 a Memorandum of Settlement (“MOS”) was entered into. Again, this document was not (and need not for our purposes be) placed before me. It appears, however, that it resolved the WDHP complaint as well as some other disputes.

18In the spring of 2008, the complainant began to articulate her discomfort with the MOS to Mr. McCay, expressing the desire that it be withdrawn or rescinded. It further appears that this discomfort led to various exchanges between the parties, involving the employer, the complainant and her bargaining agent. Whatever the complainant’s view may be, the MOS is now little more than an historical feature of her employment history.

19It was in the following year, 2009, that Mr. McCay described the start of the sea change. A series of events compelled the complainant to convey her beliefs regarding the prevalence of racism in the OPS. She began to express the view that not only should the MOS be rescinded but she wished to commence a civil action to address racism in the OPS.

20As we have already seen (as referred to in the 10-day suspension letter cited above), on March 24, 2009 the complainant received a letter of counsel in which the employer provided her with “instructions to follow the appropriate channels in communicating to senior OIAD leadership any issues … relating to diversity, discrimination and/or harassment”.

21The next significant event for our current purposes occurred on July 23, 2009. It was this event which gave rise to the 10-day suspension. The suspension, however, was not imposed until February of 2010. And as we have already seen, that discipline was imposed because (notwithstanding her prior counselling) the complainant forwarded, by way of blind copies, emails detailing what she described as OPS racist hiring practices to very senior government officials.

22One of those emails was filed in these proceedings. It is a lengthy epistle. Its concluding paragraphs, presaging events to come, provide the flavour of the complainant’s orientation and objectives:

As you are aware, I am currently on sick leave and I see no point in returning and prefer to discuss a settlement from outside the organisation.

…because immediate action is needed to remove me from the OPS environment…I have blind copied others who should be in a position to bring this situation to an end…

23Upon her return to work from the resulting suspension, there commenced something of a “cat and mouse” email exchange in which the complainant persistently lobbed missives mostly, though by no means exclusively, in the direction of Mr. McCay. In these, she purported to seek clarification regarding what she might or might not be permitted to do in the advancement of her personal mission. The communications are simply too numerous and frequent to review in their entirety. The following will provide their flavour.

24In an email following shortly upon her return to work from the suspension, the complainant maligns the conduct of both the employer and her bargaining agent and adverts (in an implicitly menacing manner) to the public nature of proceedings before the Ontario Labour Relations Board (where she apparently filed subsequent complaints against her bargaining agent, complaints which were ultimately dismissed). That email is followed by another but a few minutes later, addressed to Mr. McCay and copied to both an AMAPCEO official and the Assistant Deputy Minister. It reads:

My understanding is that I am able to share this email [presumably referring to the prior one] with my colleagues within the Government of Ontario, please advise me if there are any legal reasons that would prohibit doing so, for I intend to work within the legal framework in prosecuting my claim.

25I pause to reflect on the character of this interrogatory, for it is emblematic and instructive in relation to the complainant’s typical approach throughout. Viewed on its own, the email may be seen as relatively innocent and innocuous. It does, however, come on the heels of a letter of counsel and a 10-day suspension for inappropriate communications and is, notwithstanding, copied to the ADM. In that respect at least, the complainant’s apparent need to broadcast and publicise her mission remained unchecked. Further, when this email is considered in the context of what perhaps already was but certainly would become (with some interruptions) a relentless stream of correspondence asking, re-asking and revising a similar line of questions with unceasing effort, it is no wonder that, at some point in the exchange, Mr. McCay ceased responding. And viewed from this perspective the goal of much of the correspondence must be seen as something other than its professed object. Rather than innocent inquiries or information gathering, the intention of the correspondence was more likely consistent with its effect – to persistently remind a frequently broad range of recipients of the complainant’s presence and her mission.

26And if this email provides the flavour of the complainant’s approach, so too does the response demonstrate that of the employer. Mr. McCay wrote:

Karen, you are not authorised to share this e-mail with anyone else. In fact, you are not authorised to proceed to the ADM without prior discussion with me, nor was it appropriate. If in your view there is a need to discuss an issue then I expect you to use reasonable judgement and take the appropriate steps to arrange to see me. You have not come to me with this concern relative to any possible misunderstandings, need for further communication, related assumptions or to express your concerns. You have made no effort to arrange time with me personally or through my assistant. Your letter of counsel of March last year referenced by me in prior correspondence speaks to this process of escalation for example. It is also not an appropriate use of communications process to distribute e-mails for example outside an appropriate process of escalation, and that does not include colleagues within the Government of Ontario, as per your note. If you do so you will be insubordinate relative to my direction.

27This response discloses, as did Mr. McCay’s evidence generally, the frustration inherent in dealing with an employee who raises “large issues” but declines to participate in any efforts at their resolution while being prepared to escalate matters well beyond the parameters of her immediate work environment.

28Undeterred by the employer’s response, the complainant wrote back the following day:

The following is the content which I consider to be personal and which I should be able to share within the OPS, for the time being, until this issue gets into the public domain via the court system after which I will be able to share it as widely as I want as I am convinced it is true:

On my return to work on February 8, and prior to you suspending me for 10 business days as a result of my communicating my profound horror and disgust arising from the obvious practice of racism across the Government of Ontario and AMAPCEO turning a blind eye.

The issues being raised at the Ontario Labour Relations Board of AMAPCEO’s record or lack thereof in pursuing the obvious existence of systemic racism across the Government of Ontario, despite the admittance by the Government of Ontario that this in fact exists. Of course the rulings of the Ontario Labour Relations Board are published to the public via their database.

Of course AMAPCEO became complacent over the years and did not even attempt logical reasoning in turning away grievances relating to systemic racism. The type of arguments which they used was that a claim of racism was based upon visual observation, which is not adequate.

I would appreciate any prohibition from communicating the above to be based upon in reference to policy. Also, the text is based upon verifiable facts, plus my reaction to those facts, such as the Government of Ontario's admittance of its practice of racism.

If there is a policy against the communicating these facts please indicate which facts offends the policy and why this should be so if the facts are true.

29The second, third and fourth paragraphs, while not identical to, are essentially a re-working of the e-mail I have referred to above (as the “prior e-mail") in respect of which the complainant’ s initial inquiry about her understanding of her ability to share her e-mail had been asked and answered. However, when the complainant received no further response, she wrote again (changing the “re line" in her e-mail to: “oath of secrecy issues") on May 11, 2010:

I am respectfully reminding you that you had promised [apart from this assertion, there was no evidence of any such promise before me], nearly two months ago, to obtain an opinion from labour relations on the content below [a reference to the previous email, reproduced above] and advise me as to whether there were such policies which would prevent me from communicating the information below, which I whole heartedly believe to be true, within the OPS.

Also, I am now aware that you have been provided with notice by the Ontario Labour Relations Board that applications have been filed relating to the long-established racist practices by the Government of Ontario and AMAPCEO’s continued condoning and enabling.

I am committed to prosecuting my claims within legal parameters and request that you confirm whether the filing of the applications with the Ontario Labour Relations Board frees me from the Oath of Secrecy in relation to matters contained in documents filed with the Board. I understand that the Oath of Secrecy does not apply in relation to legal processes which have been initiated.

I would greatly appreciate if you would get back to me at your earliest convenience, as I wish to proceed with my To–Do List. A response to the matter discussed below would also be highly appreciated.

30And on the following day, adding a further new dimension to the dialogue, she wrote again:

I am planning on developing appropriate social interaction websites (blogs, Twitter, etc.) in an attempt to obtain further corroboration of my claims against the Government of Ontario for its racist practices. I believe that others would also have made similar observations, but might have felt intimidated and not sought justice. This could possibly develop into a class action issue. I am currently developing appropriate meta data to attract a broad audience.

I am again respectfully requesting that you provide me with appropriate, timely, direction as to whether this course of action could infringe on any of the provisions of my contract of employment.

31The complainant had been copying her emails to an AMAPCEO representative and this last email prompted an exchange between her and that representative. It is unnecessary for me to review those in detail. It is sufficient to note that the AMAPCEO representative, on May 12, 2010, cautioned the complainant as follows:

I would strongly urge you not develop any websites, blogs or other forms of public communications to continue to pursue your claims or to publicly state your beliefs about the Government of Ontario. The employer's letter of counsel of March, 2009 has set out a process that is expected for you to follow. Warren McCay's e-mail below clearly states that if you disregard his previous directions (i.e. the letter of counsel and his response to you below), it will be seen as insubordination. As a result, it is quite likely that you would be facing further discipline which would be more serious than the ten day suspension.

32About two weeks later, the complainant wrote again, setting out the “Oath of Secrecy” and inquiring about the impact of its “exception”. The oath prohibits the disclosure of information gained by reason of being a civil servant, except where such disclosure is “legally authorized or required”. The complainant appears to have been of the view that her pending proceedings at the Ontario Labour Relations Board freed her from the constraints of the oath, permitting her to disclose confidential information not only in relation to and within the confines of the OLRB proceedings, but to the world at large. Mr. McCay promised a response. It came on May 31, 2010:

Karen, in response to your email correspondence regarding the subject, please find enclosed in this message the position of the employer relative to your requests, the emails you wish to send, and distribute broadly at your sole discretion, as well as communication through websites and similar vehicles. I am referencing questions raised in your emails of March 17, May 11 and May 25, and further clarification you had requested relative to my prior response and developments in the interim with respect to your claim submitted to the OLRB.

All OPS employees are regularly reminded about the appropriate use of government IT resources. A pop–up message titled “Notice of Restrictions on the Use of Ontario Government I&IT Resources" appears regularly upon log-in that prompts employees to acknowledge they have read this notice, are aware of the terms and conditions and have been provided with access to the governing policies before they can log in. This message and the associated policies clearly indicate that Government of Ontario IT Resources are to be used exclusively for government business, unless otherwise approved by your manager. This includes computers, laptops, email, internet, intranet, extranet, personal digital assistants etc. In addition, under the I & IT Operating Procedure is for the Use of I&IT Resources, unacceptable use of I&IT resources includes sending email messages which discredit the government or other OPS staff or include the use of unprofessional conduct.

Furthermore, case law shows that attacking, insulting or criticizing management, operations or other employees online, or associating the employer with negative or offensive views may be a basis for discipline up to and including dismissal. You are not authorised to share the aforementioned email with others in the OPS. You are also not authorised to create a social networking site to obtain further corroboration of your claims against the Government of Ontario. You have a duty of fidelity to your Employer to follow proper channels of reporting when you have a complaint against the organisation and are required to follow it as outlined in your collective agreement. Any breach of that duty may attract discipline from the Employer up to and including dismissal. Furthermore I must remind you that as long as you are an OPS employee, you have an obligation not to divulge confidential information.

You are not precluded from raising allegations of racism and harassment at the OLRB or GSB.

33In a further exchange which culminated on June 30, 2010, the complainant indicated her intention to commence a civil action against the Crown and asked for further clarification that she was not precluded from so doing. Mr. McCay, in response, referred to and reiterated his May 31 response and added that, with respect to other legal avenues, he was not in a position to provide legal advice and counselled the complainant to seek it from her bargaining agent or from independent counsel. Ms. Egesi responded, in a curious interpretive turn, thanking Mr. McCay for confirming that she was not prevented from pursuing the various legal avenues open to her. A confirmation which, continuing in her curious interpretive abilities, she subsequently appears to have transformed into what she described as an “undertaking” from Mr. McCay.

34The subject matter of the above exchanges was then deferred for about a year. The complainant was off work for some or all of this period.

35On July 7, 2011, Ms. Egesi forwarded, in rapid succession, two emails to Mr. McCay, both with the subject heading: “Right to Openly Litigate Wrongs Perpetrated by the Government of Ontario by its Racist Practices”. In the first she writes (in part):

…I am revisiting an email discussion which we had approx. 1 year ago.

This subject relates to my need to openly accuse the Government of Ontario relating to the subject of its racist practices and to freely discuss my case to gather evidence and otherwise vigourously litigate my case. I have provided the Attorney General of Ontario with the required notice of civil litigation.

Accordingly, I request that you confirm to me that in accordance with the Oath of Secrecy provisions, the Oath of Secrecy will not apply in relation to this litigation. Further, as I wish to abide by all requirements, I would be especially grateful if you advise me on the actual point at which the Oath of Secrecy will not apply to the pending court proceedings.

36The companion email relates more directly to the complainant’s desire to publicise (and perhaps solicit participation) through her “media plan”:

I should have mentioned that time is of the utmost essence in relation to this subject as I have to put final touches on an appropriate media plan which should commence prior to the serving of legal documents. You will agree that the process is moving towards the declared objective. At this time, it is important to my case that those who support human rights and justice for all, irrespective of race, be contacted and given the opportunity to show support on this critical social issue. Hitherto I have been championing this cause alone, in spite of ongoing denials, etc, by the Government of Ontario. I feel that when corroboration and support is obtained, the Government of Ontario will not be able to continue with its denials in the face of insurmountable evidence.

As the clarification was requested before, but was stifled, I will have to present it by way of grievance if I am not provided with an undertaking of a definitive response from HR by Monday, clearly addressing the provision of the Oath of Secrecy in relation to cases which are in litigation.

37The reference to previous clarification having been “stifled” can generously be described as cryptic. The promised grievance was never filed, despite the lack of any specific response to the email.

38On August 17, 2011, Ms. Egesi filed a Statement of Claim in the Superior Court of Justice. The named defendants were: the Crown in Right of Ontario, Jane Doe, John Doe 1, John Doe 2 and John Doe 3. Neither party before me referred to this document in any great detail. Neither will I. Suffice it to say that it comprises 117 paragraphs laced with invective, polemics, conclusions (legal or otherwise), and perceptions. It is, however, severely lacking in the particularity which might be expected to attend such a document. And it concludes that the remedy required in the case would be a payment by the “evil, racist organisation”, the Crown, to the complainant of an amount in excess of three billion dollars. The claim was ultimately dismissed about a year later. It never went to trial. However, it was the complainant’s manner of attempting to prosecute the claim that resulted in the instant proceedings.

39A series of communications between Ms. Egesi and government counsel ensued. Although it was not put before me, it appears that, on September 8, 2011, government counsel wrote to the complainant cataloguing its detailed objections to the propriety of the suit and objecting to the Court’s jurisdiction. It also appears that government counsel requested the complainant refrain from noting the Crown in default. The complainant responded to that communication on September 14, 2011 as follows (in part):

…You have no defence and did not file one. Accordingly, I have requested for the Government of Ontario to be noted in default…

…The Government of Ontario cannot win this case because it will be decided in the court of public opinion…

…The Government of Ontario should seek to settle this case without delay as it stands to become overwhelmed, very shortly, when the details of this case becomes [sic] public and it is used by various interests for their own purposes.

However, if the Government of Ontario does not settle this case, without delay, it will shortly lose the ability to control the process. It is undoubtedly in the best interests of the Government of Ontario to settle this case and accordingly I have my lawyer at hand to negotiate a settlement which should take no more than 2 days.

40Further emails, which are unnecessary to review, were exchanged on September 14 and 15, 2011.

41The foregoing is the documentary trail which leads to the “smoking gun” – the email Ms. Egesi forwarded on September 15, 2011. I have already, many pages ago, set out this correspondence in full. For ease of reference and before continuing to outline events which followed it and culminated in Ms. Egesi’s termination some nine months later, I set it out again (first the subject line followed by the full text):

You have threatened me with legal costs, but tonight, depending on whether I hear from you or not, by 4:30 p.m. today, I will be driving traffic to my website with appropriate Google ads based upon key words designed to attract Government of Ontario traffic. I will also be driving traffic to my website through advertisements in local and national newspaper. Visitors to my website will be able to contribute to my legal costs and read the statement of claim and other filing [sic], etc.

Visitors to my website will also be able to contribute to help those affected by the Bashar al-Assad regime in Syria.

As a concerned citizen, I am going to copy appropriate persons within the Government of Ontario who, as a concerned citizen, I feel should be informed of this case.

I will also be considering my option of filing a motion to obtain judgement due to the opportunity created by the Government of Ontario’s default.

42As noted earlier, the email was forwarded not only to its stated recipient (government counsel on the civil action), but also surreptitiously, by way of blind copies, to Mr. McCay and to five high ranking government officials.

43And, as also previously noted, Mr. McCay’s response was swift. On the same day, the complainant was suspended with pay:

44The suspension letter also referred to the complainant’s announced intention to drive traffic to her website (no evidence that any such website was ever created was put before me) using Google ads to attract Government of Ontario traffic and newspaper ads for the same purpose – to allow website visitors to contribute to her legal costs and to read the statement of claim and other filings. After referring to that stated intention, Mr. McCay (in the suspension letter) directed as follows:

I am specifically instructing you to refrain from this or any other related action. Disregarding this direction may have employment consequences for you.

45To Ms. Egesi’s credit, she complied with this direction. To the extent that there ever were any plans to create a website or to publicise her mission and solicit support and/or participation in any remotely public fashion, there is no evidence that any such steps were ever taken.

46Mr. McCay’s letter also included the following:

Please be advised that during the suspension period you are required to be available during normal business hours should management require meetings with you.

47As we shall see, this was a requirement Ms. Egesi apparently felt free to ignore.

48The complainant’s response to the suspension was as swift as its imposition had been. Within two hours of receiving the notice of suspension, she responded:

Please note that this suspension is inappropriate. My communications today relating to Court File No. CV-11-433056 were external to the OPS, outside of your jurisdiction, and related to a plaintiff in a case communicating with the defendant and their lawyer. Also, you have already advised me by email that is up to me, and you would not offer any advice, if I were to prosecute my claims against the Government of Ontario and enforce my legal rights and it is with this undertaking that I filed my claim.

You cannot now attempt to tie my hands and prevent me from prosecuting my claims by suspending me for communicating with the defendants and their lawyers in the case that is now being litigated. This is attempting to interfere with the conduct of my case in order to influence the outcome of my case.

Also, you cannot attempt to prevent me from using legal means to generate a fund for my legal costs.

You have seriously and inappropriately mis-characterised this matter as one of using inappropriate channels to communicate diversity issues within the OPS, which is a matter for your jurisdiction.

Also, the defendant’s lawyer was the one who initiated contact with me and attempted to convince me of the strength of the defendant’s case and for me to give up my case. I then communicated back that I strongly felt that they should settle and that was the nature of communication.

This is a matter relating to the law of civil procedure, which is now before the court, and I will prosecute my case under that law, including obtaining donations for possible legal costs, by legal means. The action which you have warned me to stay clear of is critical to the advancement of my case. You have also previously given an undertaking that I am free to litigate this case.

49The promised internal investigation was completed some four months after the initial imposition of the suspension and a final report, dated January 9, 2012, was prepared. The veracity of the report’s conclusions is not disputed. Essentially, they indicate, among other things, that Ms. Egesi used her government IT access to scan and email a copy of her Statement of Claim; to access her personal hotmail account and send the email I have referred to as the smoking gun to six different government officials by way of “bcc”; to store, access and share documents related to her litigation; and to conduct Google searches unrelated to her work.

50With the completion of the report, matters moved to a new phase. By letter dated January 10, 2012, Mr. McCay issued what would be the first in a series of invitations to the complainant to attend a meeting or otherwise have some input into any disciplinary decisions the employer was contemplating. Ms. Egesi rebuffed all efforts and until she testified before me some two years after the events which gave rise to her termination, provided no further relevant information to the employer apart from that contained in her email response to the initial suspension letter.

51I have used the word “invitation” to describe the letters which followed. That should not be taken literally. In the first of the letters, Mr. McCay advised the complainant that her attendance at the scheduled meeting was mandatory. She was further cautioned that her failure to attend would lead to a decision based on the information available to the employer without any input from her.

52Ms. Egesi responded to the first invitation as follows:

As I have told you before, I am innocent of any wrong doing and as such AMAPCEO will have to deal with whatever is being concocted.

53Mr. McCay responded by email, again emphasizing that Ms. Egesi’s presence at the scheduled meeting was mandatory. On the date of the scheduled meeting, some 3-1/2 hours after it was scheduled to commence, the complainant forwarded an email to Mr. McCay, which read in its entirety; “Unfortunately, I was unable to attend today as I became very ill.” No explanation was ever provided for the lack of advance notice of her non-attendance.

54A second invitation issued for a meeting to be held on February 14, 2012. Again, Ms. Egesi was told her attendance was mandatory and that failure to attend could result in a decision based on the information available to the employer. In addition, the complainant was instructed that if she was unable to attend due to a medical reason, she was to so advise at least three hours prior to the scheduled start time of the meeting. Less than an hour prior to the scheduled start time of the meeting, Ms. Egesi forwarded the following email:

I am unable to attend this meeting today. As [sic] was getting ready, I became overwhelmed with the anxiety of the knowledge that the Government of Ontario practices racism within the work environment and denies it. This has considerably confused my reality and makes me extremely afraid for safety in the Government of Ontario work environment as I do not knwo [sic] if there are limits to the racist practices of the GoverN [sic] of Ontario.

55As the prospect of a face to face meeting receded, Mr. McCay shifted gears, provided the complainant with a summary of the findings of the investigation report and provided her with a week to file a written response. None arrived.

56On March 16, 2012, Mr. McCay again wrote to the complainant advising her that, in view of her failure to respond, he was accepting the findings of the investigation and had concluded that the allegations were substantiated. He then provided the complainant with a further opportunity to make written submissions – this time to enumerate any additional information or mitigating factors she wished the employer to consider in determining whether and, if so, what discipline should result. No submissions were received.

57Some ten weeks after the deadline for the written submissions had passed, on June 7, 2012, Mr. McCay once again wrote to Ms. Egesi. This time he advised her that he was ready to render his decision regarding discipline and advising her that she (with AMAPCEO representation, if desired) was required to attend a meeting scheduled for June 13, 2012.

58The following day Ms. Egesi emailed Mr. McCay as follows:

Please note that I am not able to function within the Government of Ontario due to cognitive dissonance resulting from the Government of Ontario’s practice of racism whilst denying it. If the Government of Ontario has not and does not practice racism, in particular, at any time during my period of employment then obviously this does not relate to you. If the opposite is true, which I believe it to be, the only next steps is a settlement.

59On June 12, 2013, the day before the scheduled meeting, Mr. McCay, by email, asked the complainant to advise, that day, whether or not she was intending to attend the scheduled meeting. He received no reply that day. However, on the following day, approximately two minutes prior to the scheduled start time of the meeting, she sent the following message:

Unfortunately, I was not able to attend today. I became ill at the thought of entering the toxic racist environment which is the Government of Ontario. As you are aware, the practice of racism by the Government of Ontario, whilst denying it has confused my reality over the years as a result of the cognitive dissonance..

The Government of Ontario is unable to deny that it has practiced racism whilst lying and denying the fact over numerous years. It is also a known fact that this conduct would cause cognitive dissonance and mental illness to employees who have been subjected to this inhuman treatment for a number of years.

These are the issues for the next steps.

60By letter dated the following day, June 13, 2012, the complainant was discharged from her employment. I have already set out the termination letter in full at the outset of this decision. It will be useful to reproduce some of its key portions. In the letter, Mr. McCay concluded that the complainant:

Used government I&IT resources to send a scanned copy of the Statement of Claim related to your personal litigation issues to your email account on September 15, 2011;
Logged into your Hotmail account using your government computer on five occasions on September 15, 2011. You edited and sent emails, including sending an email to several senior government officials pertaining to your personal litigation issues;
Stored 9 documents on your government computer related to your personal litigation issues. These documents included your Notice of Claim, Statement of Claim to the defendants, and Requisition to Note in Default;
Accessed various documents related to your personal litigation issues on your government computer on sixteen occasions between August 15, 2011 and September 15, 2011.
Conducted Google searches using government I&IT resources on September 15, 2011 that were not related to government business.

61While I was not provided with full details or any decision of the Court, it was common ground that in August 2012, not long after her termination from her employment, Ms. Egesi’s civil action was dismissed by the Court on a preliminary basis without ever proceeding to trial.

The viva voce evidence

62I turn now to review, briefly, the viva voce evidence proffered by Mr. McCay and Ms. Egesi. The historical trail of the documentary evidence we have canvassed provides a fairly complete evidentiary picture. Some added nuance comes from the viva voce evidence.

63Mr. McCay’s testimony traversed much of the history already reviewed and, ultimately, did not add significantly to that recitation. A few points, however, merit some attention. First, and not at all surprisingly, Mr. McCay testified that he felt “exposed” as a result of the complainant’s September 15, 2011 email. Although he received a copy as a “blind cc”, that, of course, did not disclose who all of the other various recipients may have been. He discovered that only on an “ad hoc basis” as various inquiries made their way (apparently quite quickly) to him through the channels from other recipients. There is no question that Mr. McCay was placed in a position of unnecessary vulnerability as a result, perhaps not so much of the email itself, but as a result of the manner in which Ms. Egesi chose to transmit it. We shall shortly review some of the aspects of the civil action Ms. Egesi had commenced, certainly to the extent that she pointed to these as providing a context or explanation for her conduct. At the outset, however, it is clear that, even apart from any question as to whether her conduct was culpable, there was nothing civil about the manner of the action she took in transmitting the email.

64Mr. McCay also gave voice to the continuing frustration and exasperation he encountered in his attempts to address some of the complainant’s concerns. For example, early in the narrative just recounted, some efforts were made to engage the services of a person qualified to assess the concerns articulated by Ms. Egesi. Three different meetings were arranged to commence that process. But, foreshadowing events to come, Ms. Egesi simply failed to attend these meetings and failed to advise of her intended non-attendance. The effort was curtailed when Ms. Egesi promised to invoke “harassment charges” if it continued.

65From the date of Ms. Egesi’s suspension to her ultimate discharge, all communication between the two protagonists was restricted to written exchanges. And in the flurry of correspondence which followed the completion of the investigation and led up to the termination, Mr. McCay agreed with AMAPCEO counsel that Ms. Egesi had never been explicitly cautioned that her failure to attend meetings or otherwise participate in the disciplinary process might be the subject of discipline or otherwise taken into account in determining the resulting discipline.

66Mr. McCay also expressed some bewilderment at Ms. Egesi’s conclusion that he had given her “permission”, something she later described as an “undertaking”, to commence and prosecute her civil action. This bewilderment is entirely understandable given the clarity of his written response of June 30, 2010 (referred to earlier) in which he specifically indicated, in response to a query regarding a civil action, that he was not in a position to provide advice and counselled Ms. Egesi to seek it from her bargaining agent or from independent counsel.

67Ms. Egesi’s evidence provided greater opportunities for analytic reflection. It is less than clear, however, that it added more than it detracted from the strength of her case. I will highlight some of the significant themes of her testimony.

68First, in an effort to explain why she had used government IT resources to advance her own personal endeavours, Ms. Egesi frequently referred to what she described as the “cultural blurring” between the use of personal and government resources for personal and government purposes. She explained, for example, that employees “continually” use their personal hotmail accounts at work and that most people have their hotmail accounts open all the time at work. She also asserted that, in her own case, there was no clear dividing line – she might use her own home equipment for work purposes and her government equipment for personal purposes. Her work related correspondence might well be sent from or received at her hotmail account. The borders were not clear.

69As will be seen, I am not without sympathy with part of the theme echoed in the complainant’s approach. However, her portrayal of the facts, which were largely unsupported by any evidence apart from her assertions (particularly in relation to the extent that her personal hotmail account was used to send or receive work related communication), can generously be described as hyperbolic. Isolated incidents may have been translated into her view of the norm.

70I frequently found it difficult to assess the complainant’s true intentions through her viva voce evidence. She was generally self-possessed and seemingly rational in her presentation. It was, however, often difficult to square that seeming rationality with the content of her words. There is little doubt that Ms. Egesi charged (or at least presented as having charged) herself with the burden of single-handedly taking on and eradicating racism in the OPS (all that would be required to effect that result, at least according to her lawsuit, would be a payment to her of over three billion dollars). But while one may all too easily mock the presumptuousness of her exercise, I am persuaded that it was not entirely devoid of some sincerity. The epic proportion of the task, however, might lead one to wonder whether it was Don Quixote or Narcissus that the complainant was channelling – she displayed elements of both.

71For example, I have already adverted to the theme of Ms. Egesi’s failure to cooperate in any meaningful way in various contexts. When asked why she had declined (early on in our narrative) to join and work with an internal diversity committee, she explained that no one was willing to take on the issues that concerned her, i.e. the existence of racism in the OPS and unashamedly pronounced that she “was the only one willing to take it on”. The dramatic breadth of such an assertion is surely worthy of a major literary character or the stuff of myth.

72The complainant offered a number of other explanations for her conduct. In an effort to minimize the importance of prior events (the letter of counsel and the 10-day suspension) relating to failure to use the proper channels of communication, Ms. Egesi, in an argument later taken up by her counsel, attempted to distinguish the characteristics and context of the prior events from those that gave rise to the discharge. And the difference, in her view, resides in the existence of the lawsuit. The prior events were, as she put it, “internal” to the OPS, while the September 15, 2011 email related to the lawsuit, a matter “external” to the OPS and therefore outside Mr. McCay’s “jurisdiction”. I will return to the efficacy and persuasiveness of this distinction later. For the moment, it is sufficient to observe that the complainant’s ability to posit such a strict distinction between internal and external communications is perhaps difficult to reconcile with her description of the “cultural blurring” which is said to attend personal use of IT resources.

73In her evidence, Ms. Egesi also offered, for the first time, an explanation for why (apart from any invidious motives) she chose to forward blind copies of her September 15, 2011 email to the six individuals she chose (Mr. McCay and the five other more senior government officials). On its face, the email was addressed to government counsel and clearly pertained to the lawsuit. The lawsuit, however, named additional defendants beyond the Crown in Right of Ontario. It included one Jane Doe and three John Does. The complainant explained that the individuals to whom she forwarded blind copies of her email were all persons she intended to add as defendants in the action. They were the Does. And understood in that context, the communication was merely one she was having with parties to the lawsuit. It was a communication pertaining to the suit and thus fell on the “external” side of the internal/external divide the complainant posited. I will return to this later.

74Ms. Egesi also addressed the issue of, as the employer put it in the termination letter, her failure to “cooperate throughout the investigation, ignoring numerous requests for information and declining to meet with the Employer at their direction on multiple occasions”. The employer relied on that “failure” in determining to terminate her employment. The complainant explained, however, that the various invitations/directions referred to, while some may have included a “direction” to attend, were all presented as offering her the choice of attending or running the risk that the employer would make its determination in the absence of any further input from her. And Ms. Egesi expressed the view that she had responded, in writing, on the day she was initially suspended and that she had nothing further to add and, at least by implication, was content to have the employer act on the basis of the information it had at hand.

75Finally, Ms. Egesi was asked a number of questions, by both counsel, regarding her ability, if reinstated, to return to work. The record is replete with statements by the complainant which might call into question her desire, if not her capacity, to return to productive employment within the OPS. For example, during the course of correspondence related to attending investigation meetings, Ms. Egesi wrote (on February 14, 2012):

I am unable to attend this meeting today. As [I] was getting ready, I became overwhelmed with the anxiety of the knowledge that the Government of Ontario practices racism within the work environment and denies it. This has considerably confused my reality and makes me extremely afraid for safety in the Government of Ontario work environment…

and on June 8, 2012:

Please note that I am not able to function within the Government of Ontario due to cognitive dissonance resulting from the Government of Ontario’s practice of racism whilst denying it.

and on June 13, 2012:

To comparable effect are paragraphs 78-80 of Ms. Egesi’s Statement of Claim (filed in August 2011):

The plaintiff also suffers fear of imminent harm based upon the fact that the Government of Ontario has demonstrated that it is capable of committing bold, unjust acts which it itself has deemed illegal, without remorse or consequence. The plaintiff feels that the Government of Ontario intends to cause her further harm. These feelings are exacerbated by the knowledge that the Government of Ontario shoots and kills “ghetto youths" whom it excludes from economic opportunities.

The Government of Ontario has coached the plaintiff during the 12 years which she has being [sic] employed by the Government of Ontario that she was an inferior human being to other staff members belonging to one of the included races and that she should accept her racial inferiority in order to avoid reprisals and remain in the employment of the Government of Ontario.

The plaintiff is now questioning her humanity due to the powerful negative stereotyping which the Government of Ontario has subjected her to over the period of employment within the racist, toxic environment of the Government of Ontario.

76Essentially, the question both counsel put to Ms. Egesi was, in view of the foregoing, how could she possibly envision a return to active employment within the OPS. The complainant was not without a response.

77Ms. Egesi, in an oft-repeated refrain, which remained steadfast even in the face of probing cross-examination, explained the dynamic in a fashion I would synthesize as follows. She toiled under the oppressive burden of the evil racist practices of the government employer for many years. She was the only person (at least within the OPS) who was willing to assume the mantle of challenging and changing these practices. The vehicle she ultimately sought was a civil action to vindicate her claim. And although that action was ultimately dismissed, it achieved at least one important result. Returning, in a fashion, to the internal/external dichotomy earlier posited, the filing of the lawsuit effected a highly desirable transformation. Matters were altered from a situation confined to the internal parameters of the OPS, into something that had an independent public existence. The lawsuit rendered the issue a matter of public record, and the pleadings and the action, though they were both dismissed, have now assumed a life of their own – they may well even outlive the complainant. And just as this process has rendered what was internal to the OPS external to the world at large, a similar psychological achievement attends Ms. Egesi more directly. Until accomplishing the objective just described via the lawsuit, Ms. Egesi was consumed with the burden of her mission. She has now done all that she can and has consequently managed to “externalize” (a much repeated word) all of that inner anxiety. Her mission is complete and she can now return to productive work in the OPS.

Positions of the parties

78The employer advances a series of positions. First, it asks that the complaint be dismissed as discharge was warranted in the circumstances. In the alternative and if this Board finds discharge was not the appropriate penalty in the case, the employer asks that the complainant not be reinstated but be granted damages in lieu of any reinstatement. And, in the final alternative, the employer urges, should this Board determine that the complainant be reinstated that any such order should exclude any compensation.

79The employer begins by pointing to the 10-day suspension and, in particular, the second and third paragraphs thereof (as some portions of this have not been earlier reproduced, I do so now):

… In blatant disregard of the expectations laid out in the letter of counsel, you sent 5 emails on July 23, 2009 containing content related to what you describe as OPS racist hiring practices, with 3 of those emails blind carbon copied to David Fulford, ADM, Ministry of Education Training, Colleges and Universities, Shelley Jamieson, Secretary of the Cabinet, Ron McKerlie, DM, Ministry of Government Services and members of the Education Audit Service Team

During the period September 29, 2009 to February 5, 2010, you were absent from work on sick leave. You returned to work on February 8, 2010. Upon your return to work, you were invited to a meeting scheduled for February 10, 2010 to hear the results of the investigation and to provide you with an opportunity to offer any additional information or mitigating factors you wanted management to consider. You chose not to attend that meeting and were insubordinate when I attempted to speak with you by telephone. You refused to answer phone until asked to do so by a fellow employee. When you did answer the phone, you refused to speak or even acknowledge that you were listening.

80The conduct which gives rise to the termination is not new, it is perfectly consistent with prior conduct and signals an employee who, despite clear direction, does not follow instructions and refuses to even respond.

81The employer, on May 31, 2010 gave Ms. Egesi a clear direction regarding the use of government I&IT resources (and it was re-iterated on June 30, 2010). There is no dispute that she used government IT resources for personal purposes as found in the IT investigation and outlined in the bulleted portions of the termination letter. Any claim by the complainant that any “clarity” of direction was restricted to what she described as the “oath of secrecy” issue is pure obfuscation. She was given a clear direction not to use government resources for personal purposes.

82Simply because she initiated a legal proceeding against the Crown, Ms. Egesi is not released from that direction. Among other things, she went into her hotmail account using her government computer and blind copied five senior members of the government (some of whom are the very same people she had blind copied previously, leading to the prior 10-day suspension) on an email related to her lawsuit. Her explanation that she did so because she was intending to add those persons as defendants is nothing more than a late excuse, manufactured of whole cloth.

83Even if the requests/directions for her to attend investigation and/or disciplinary meetings did not explicitly set out the disciplinary consequences, if any, of her failure to attend, those communications clearly identified her attendance as mandatory. Ms. Egesi continued to demonstrate (a pattern which has historical roots) that she was simply contemptuous of any management initiative – she simply did not care.

84Having regard to all of the foregoing, the employer submits that discharge is the appropriate response. Alternatively, it submits that Mr. McCay’s conclusion that the complainant is “ungovernable” is demonstrated by the facts of the case. Mr. McCay cannot legitimately have any confidence that Ms. Egesi will “get the message” that her prior conduct was unacceptable and must, in order to preserve the employment relationship, be significantly improved. Accordingly, even if discharge was too harsh a response, the complainant should be awarded damages (the Board to remain seized) in lieu of any reinstatement.

85The Association’s approach is, not surprisingly, very different.

86The grievor received a 10-day suspension in February 2010. The focus of that discipline was on the complainant’s inappropriate channelling of her communication. It did not focus on any breaches of I&IT policy. For over a year and a half following that suspension, the complainant did nothing to warrant the imposition of any discipline.

87The termination of her employment was, according to the employer, based on the breach of the I&IT policy, the improper “channelling” of the September 15, 2011 email to high level government officials, and on Ms. Egesi’s failure to cooperate in the investigation into her misconduct. The Association reviewed these in turn.

88There is no dispute that Ms. Egesi did the things enumerated in the employer’s letter of termination. But even if that constitutes a breach of the I&IT policy, it is marginal, at worst. She used her government computer to access her personal hotmail account to edit and send a limited number of personal emails, to scan and/or store some personal documents, and to conduct, on one day, a number of internet searches not related to her work. The evidence did not establish how much time these tasks (together or singly) occupied. It must have been minimal. There was no suggestion that any of this activity interfered with Ms. Egesi’s work in any fashion.

89There was no prior discipline for any breach of the I&IT policy and Ms. Egesi truly believed, given her view of the “cultural blurring” associated with use of personal and employer IT resources, that she was entitled to do what she did.

90Further, a review of this Board’s cases dealing with breaches of the I&IT policy demonstrate that it is conduct much more extreme than that of the complainant’s which results in sanctions as severe as the one imposed here. Typically, these are cases where employees use government resources to do such things as access pornography or promote their own personal business interests, not cases where an employee uses their government computer to send a personal email.

91In all of these circumstances, if any discipline is at all warranted for a breach of the I&IT policy, it must be marginal.

92As far as the “improper channelling” is concerned, it may be true that, at least in some respects, Ms. Egesi’s conduct here resembles the conduct which resulted in her prior suspension. But there is also a fundamental difference, at least in Ms. Egesi’s perception. The prior conduct related to Ms. Egesi’s personal work related concerns, to her efforts, such as they may have been, to address her concerns internally within the parameters of the OPS. In the latter incident, the communication, in her view, transpired in a context much broader than the simple employment relationship. She viewed it as a broader external matter, not one of internal employment concerns. And, in addition, however misguided or inappropriate her view may have been, she also saw the copying of the email in question as a manner of notifying/adding defendants to the lawsuit who had hitherto been identified only as Jane or John Doe. She had no nefarious motive and conducted herself in an open manner, otherwise she would not have copied Mr. McCay on the email.

93Indeed, argues the Association, the issue is not merely to whom she forwarded the emails, but rather that she used government resources to do so. Had she merely sent the same emails privately, without use of any government resources, there would have been no culpable employment related conduct.

94In reply, the employer disputed this submission. While it acknowledged that the parameters of the legal issues might be different, it asserted that discipline would still have been warranted had the same email been sent from Ms. Egesi’s personal computer outside the workplace.

95In any event, with respect to the breach of I&IT policy and the improper channelling, the Association contended that any employment misconduct must be seen to be at the low end of any scale of such culpable misconduct.

96The Association also submits that it was not appropriate for the employer to consider Ms. Egesi’s failure to cooperate in determining to discharge her from her employment. In that context, the contents of the letters in which Ms. Egesi was directed to attend meetings or make submissions (neither of which she ever did) were reviewed. Association counsel points out that, while the word mandatory may appear in some of the invitations, Ms. Egesi was never specifically advised that her failure to attend or otherwise participate might, in and of itself, give rise to discipline. The choice she was consistently offered was to attend and participate OR run the risk that the employer would proceed on the basis of the information already at its disposal with no further opportunity for input from the complainant. She chose (wisely or not) to forego the opportunity of further input, she felt her response to the initial suspension on the day it was imposed was sufficient. But in the absence of any clear indication from the employer at the time that her failure to attend a meeting or otherwise participate in the process might give rise to discipline, it would be unfair to permit the employer to rely on that conduct to support the decision to discharge.

97Finally, the Association urges me to reject any request from the employer that I make an award of damages in lieu of reinstatement. The evidence simply does not support the conclusion that the employment relationship has been irreparably damaged. Mr. McCay’s conclusion that Ms. Egesi is “ungovernable” is not borne out by the evidence. First, there is no issue relating to Ms. Egesi’s performance or ability to do her job. And the complainant explained her ability to return to the job despite past dissatisfactions and statements – she has successfully “externalized” the burden she had been carrying, from her point of view, “it’s done”.

98The alternative remedy of damages in lieu of reinstatement is and should be reserved for the clearest of extreme and relatively rare cases where there is an inescapable conclusion that the employment relationship cannot be rehabilitated. This is not that case. Thus, the Association submits that the grievor ought to be reinstated with full compensation or, alternatively, with a modified and significantly reduced penalty.

Decision

99I have concluded as follows. Ms. Egesi’s conduct warranted discipline. Discharge was too harsh a response in the circumstances. This is not an appropriate case for the award of damages in lieu of reinstatement. However, the complainant deserves little in the way of either sympathy or relief. While ultimately, I am prepared to reinstate her into her employment, that is the limit of what I feel is appropriate in the circumstances. The reasons for these conclusions follow.

100The complainant’s misconduct falls under three broad headings: breach of the I&IT policy; “improper channelling”; and failure to cooperate. I will deal with these in turn.

101Whether or not it constitutes a full answer to the employer’s case regarding breach of the I&IT policy, I have significant sympathy with the submissions of the Association on this point. To be clear, that is not because I accept the complainant’s evidence about “cultural blurring” between work and personal use of work and personal IT resources. The evidence did not establish any such blurring, certainly not to the extent suggested by Ms, Egesi. I am, however, sympathetic with the Association’s submission that even if there was a breach of the policy, it was marginal or minor, at worst. There is a significant gap, as Association counsel pointed out, between the strict wording of the policy and the empirical reality of its enforcement, certainly to the extent that is reflected in the experience of this Board.

102The I&IT policy is an 18 page document. Employees are required to traverse a series of warnings and/or agreements each and every time they log in to government computers. This clearly suggests the employer takes this matter seriously. Notwithstanding this impressive extent of words and permissions, employer counsel was more than helpfully able to articulate the thrust of the policy expressively and succinctly: the employer warns its employees, “don’t use our stuff to do your stuff”.

103The problem, of course, is that a literal application and enforcement of this policy has the potential to grind the wheels of government to a halt or at least limit government activity to little more than enforcement of the policy. The policy clearly, simply and without any enumerated exception, prohibits use of government resources for personal use, without a manager’s approval. Thus, if an employee, without specific managerial authorization, sends an email home (perhaps in lieu of using the phone) to advise of a late return or to ask if s/he should pick up some milk on the way home, that would appear to be, strictly speaking, in violation of the I&IT policy. I am reasonably confident, however, that such conduct, despite the apparent technical policy breach, is unlikely to result in disciplinary sanctions and therefore similarly unlikely to ever be the subject of adjudication at this Board.

104The cases which have been litigated at this Board, as the Association pointed out, tend to involve much more serious misconduct than using government resources for largely benign, if personal, purposes which have little or no impact on work performance or other employer interests. The most notorious cases involve such matters as accessing or distributing pornography or using government resources to promote or run a private business enterprise.

105For the purposes of the instant case, it is not necessary for me to articulate precise borders between various types of potential breaches of the I&IT policy. I note that there was never any suggestion that Ms. Egesi’s breach fell into the more extreme terrain. There was no suggestion that her having launched her lawsuit placed her in any type of “conflict” position analogous to that of an employee who might be trading on and using government resources to advance personal business interests. Indeed, the employer’s position throughout is that she was not being disciplined for filing the lawsuit. From that perspective, I am satisfied that the complainant’s conduct was much more akin to the benign rather than the extreme side of any continuum. Were it not for the fact that her use of government resources included “improper channelling”, a matter I will next consider, I may have concluded that little, if any, discipline was warranted in respect of the policy breach.

106While I am not overly perturbed by the complainant’s breach of the I&IT policy, standing alone, I find her conduct in the next two areas more troubling.

107Ms. Egesi was previously counselled and disciplined for “improper channelling” of communication. Indeed and notwithstanding that, it appears that there is significant overlap in the very individuals whom she had been previously been advised against contacting and those who received blind copies of her September 15, 2011 email.

108The complainant asserts that the most recent communication is to be distinguished from the others because it pertained to her lawsuit. She relies on the internal/external dichotomy described earlier – claiming that the previous communications were “internal” while that related to the lawsuit was “external”. In my view, this is a distinction of little significance in the instant case. While, as previously described, the lawsuit is short on particularity, it does refer to some of her own personal experiences at work and seeks relief personal to her (three billion dollars worth) as a result, at least in part, of her interactions with her “evil racist” employer. To say that the lawsuit is a matter external to, entirely apart from her work experience is unconvincing, at best. (In this regard, I note again that the decision of the Court dismissing the suit was not before me. However, based on a passing comment by employer counsel, it may well be that a “Weber” issue formed part of the basis for its dismissal. A judicial conclusion, even in part, that the concerns of the suit were, in essence, collective bargaining matters more suited to the grievance and arbitration procedures, would be entirely consistent with my conclusion that the lawsuit, for our purposes cannot be viewed exclusively as an “external” matter.) The complainant was an employee in the OPS. She is not entitled, in matters pertaining or relating to employment in the OPS, to unilaterally determine whether she is wearing her “internal employee” or “external citizen” hat. In other words, I am not persuaded that, despite her contrary assertion, the blind copies of the September 15, 2011 email were ones she sent – certainly not exclusively – as a private citizen.

109Neither am I impressed by the late offered explanation that all she was doing, by copying the individuals she did, was providing notice to persons she intended to add as defendants to the lawsuit. First, if this was truly a sincere explanation, surely it would have been proffered much earlier on. Indeed, Ms. Egesi’s persistent assertion in her testimony before me, that she declined to cooperate in the subsequent investigation because she had said all she needed or wanted to in her immediate response to the initial suspension with pay on September 15, 2011, is simply impossible to reconcile with this revisionist explanation. And apart from sending blind copies of an email trumpeting what she viewed as her procedural triumph in having the Crown noted in default, the complainant never had and never did take any steps whatsoever to add further defendants to the lawsuit or to otherwise identify the Does.

110In my view, Ms. Egesi was giddy with having inflicted what she perceived as a possibly fatal procedural blow to the Crown defendant’s case and was unable to resist the temptation to turn the knife that had delivered that blow. This was mischief making at its finest. And the decision to send the copies surreptitiously only exacerbated the mischief, particularly for Mr. McCay who, although a recipient, would not have known who his fellow recipients were.

111One might ironically credit the complainant for the restraint she demonstrated in not copying the premier. However, the persons she did choose to copy on the email were persons of extremely high rank. Few, if any, employee complaints merit or require communication at such high levels. And Ms. Egesi had already been counselled and disciplined about similar previous conduct. She knew or ought to have known that her conduct in sending the blind copies of her mail was inappropriate. This was culpable misconduct warranting discipline.

112While I also find the complainant’s failure to cooperate during the investigation troubling, I am not persuaded, in the circumstances, that it was or ought to have been an independent basis for the discipline imposed.

113During the investigation, Ms. Egesi was on a suspension with pay. At the commencement of that suspension, she was specifically advised that she was required to be available during normal business hours should the employer require meetings with her. Twice she was told that her attendance at a meeting was mandatory. Twice she failed to attend.

114In my view, perhaps the most troubling part of that failure to attend was in the late notification of her non-attendance. In one case, she advised of her non-attendance after the fact, in the other, less than an hour prior to the scheduled start time (although she had been directed to advise of any non-attendance at least three hours prior to the meeting). For someone who was purporting to rid the OPS of racism, the complainant’s utter lack of civility, the contempt she displayed in failing to offer even a basic courtesy of advising of her absence, even when pressed to do so, might call into question her credentials to effect her chosen project. But however true this observation may be, it is less than clear to me that her lack of civility, in and of itself, warrants discipline.

115She also failed to make the written submissions she was given the opportunity to make. But although the various invitations were all couched in mandatory terms, they also spelled out at least one consequence of any failure to attend or make submissions: the employer would simply make its determination on the basis of the information it had without further input from Ms. Egesi. None of the invitations warned of any possible discipline as a result of a failure to attend or participate. Furthermore, in the two instances where the grievor failed to attend scheduled meetings, she proffered reasons, although belatedly or at the last possible moment, for her non-attendance. And while parts of those reasons might be seen to raise as many questions as they answered, the employer did not challenge their bona fides, neither at the time they were offered nor when Ms. Egesi testified. In those circumstances, I do not see how Ms. Egesi’s failure to cooperate can properly constitute an independent basis for discipline.

116This was a difficult circumstance for the employer. In one sense, it is difficult to understand why it took from January 10, 2012 (when the investigation report was completed) to June 13, 2012 to effect the complainant’s termination. During that period, Ms. Egesi continued on her suspension with pay. But the employer took every opportunity, and then some, to afford her the ability to have input into her employment future. She rebuffed those efforts and, finally, off came the employer’s kid gloves. But while the employer (and I) cannot help but notice the complainant’s apparent lack of interest in participating in the process, I am nonetheless drawn to the conclusion that this aspect of the facts cannot be relied upon, in and of themselves, as an independent basis for discipline. The employer chose, for whatever reasons, not to “read the riot act” in bringing this aspect of the process to its conclusion. It may now feel that it is being punished for its good deeds, but it had far greater control than it chose to exercise over this part of the process. The complainant’s lack of cooperation, in this and other contexts, will, however, be revisited later in this award.

117In view of the foregoing, I shall shortly return to the question of what the just and reasonable penalty is in the circumstances. For the moment, it is sufficient to note that, if only because the proper application of progressive discipline so demands (and there may not be much more to commend the conclusion) discharge was too harsh a penalty.

118I turn first, however, to the employer’s submission that I award damages in lieu of reinstatement.

119This Board’s approach to the exceptional remedy of damages in lieu of reinstatement has been articulated many times. In Shannon and the Ministry of the Environment, GSB #2002-2915, I adverted to the Board’s approach as follows (at p. 32):

This Board has considered, confirmed and, on rare occasions, exercised its authority to deny reinstatement even where just cause for discharge has not been established. As the Board observed in Massa, GSB # 2033/97 et. al. (Abramsky) at page 69:

The case law is clear that this remedy is an exceptional arbitral response in a unionized workplace.” U.S.W.A., Local 112998 and Liquid Carbonic Inc. [(1996), 1994 CanLII 5271 (ON CTGD), 20 O.R. (3d) 468 (Ont. Div. Ct.)]. As I stated in Re Rockcliffe Nursing Home and Service Employees International Union, Local 204 [(1977), 1997 CanLII 22702 (ON LA), 62 L.A.C. (4th) 316 (Abramsky)] at p. 342-343:

It is an exceptional remedy since it is fundamentally contrary to the concept of just cause which exists under a collective agreement. In contrast to the common law under which an employee may be dismissed for any legal reason with proper notice (or damages in lieu thereof) an employee protected by a just cause provision in a collective agreement normally has a right to reinstatement if it is found that his or her discharge was without just cause.

Only “[w]here the conclusion is inescapable that the viability of the employment relationship has been destroyed, reinstatement is not deemed to be in the best interests of the parties or the grievor, and damages in lieu of reinstatement may be awarded.” (p. 343)

120The employer points primarily to two reasons to support its opposition to the complainant’s reinstatement. First, it notes that Ms. Egesi continues to be of the view that racism is a serious issue within the OPS and that, as a consequence, similar undesirable conduct is likely to reoccur. Second, having regard to the various statements Ms. Egesi has made in the past (these have been catalogued earlier in this award), one should not conclude that she will be able to productively return to work or that reinstatement will provide a lasting solution. The employer is extremely sceptical about the veracity of Ms. Egesi’s theory of “externalization”. It urges me to conclude, as did Mr. McCay, that Ms. Egesi is “ungovernable”.

121I am not persuaded that “the conclusion is inescapable that the viability of the employment relationship has been destroyed”. This is a high standard to meet. The evidence does not reach it.

122First, Ms. Egesi may well continue to view racism as an issue within the OPS. She is entitled to that view. Indeed, the employer did not suggest that such a view is inimical to continuing tenure in the OPS. The question is whether, as a result of that view or otherwise, there is an inescapable conclusion that the complainant will act in a fashion inconsistent with her employment obligations. At the outset of this case, counsel for both parties advised that there was and had been no work performance issues, per se – they agreed that Ms. Egesi was a competent auditor. Thus, it was essentially a matter of agreement between the parties that even during a period of time when she was “consumed” by her “mission”, there were no complaints about the quality of her work and neither was there any suggestion that her mission was an obstacle to the performance of her duties.

123As far as Ms. Egesi’s prior statements, these were offered in different contexts and are undoubtedly tinged by the hyperbole that attends her presentation. And while her explanation of “externalization” may similarly be conceived and designed to meet the perceived self-interest of the instant litigation, it is difficult for me to conclude, and certainly not inescapably, that this presentation is little more than a ruse. So while I may share some of the employer’s scepticism at the theory, that is not sufficient for me to abandon the established path of progressive discipline in favour of a termination of the employment relationship even where I have otherwise determined that the penalty of discharge is too harsh in the circumstances.

124There was no evidence from fellow employees or other managers that would support the conclusion that Ms. Egesi could not effectively be reintegrated into the workplace. Reinstatement is the presumptive remedy where discharge has, as here, been found to be an excessive response to culpable conduct. The denial of reinstatement in those circumstances is and should be rare and exceptional because it has the capacity to undermine the practice of progressive discipline. Progressive discipline is an essential feature of the social contract that is the collective bargaining system and ought not to be lightly cast aside.

125The employer may ultimately be proven correct. It may be that the complainant’s return to work will result in further difficulties. But that conclusion is not inescapable and, even if the employer is correct, the system of progressive discipline will mean that Ms. Egesi’s future tenure in the OPS may be brief. I am not persuaded that it is either necessary or desirable to truncate or abandon progressive discipline in this case. The employer’s request for an award of damages in lieu of reinstatement is denied.

126This brings me, finally, to a determination of what constitutes a just and reasonable penalty in all of the circumstances of this case.

127Among the factors which militate in favour of the complainant are the following. She was an employee with over 12 years of service at the time of her termination, acknowledged to be proficient at her job. There was some evidence before me that the termination has had a significant deleterious economic effect on the complainant. Although she was previously disciplined for comparable misconduct, there was an entirely discipline-free period in excess of 18 months from her prior suspension until the events that gave rise to the termination. At least with respect to her declared intentions to engage in a “media plan” to publicize and solicit support for her lawsuit, she never did so, bowing to and complying with the instructions of Mr. McCay (although I note – I have not detailed it as such – that in March 2012, during the post-investigation phase, Ms. Egesi once again raised the issue of communicating about her lawsuit via social networking, Mr. McCay’s response was similar to his previous ones and Ms. Egesi did refrain from engaging in any such conduct.)

128Perhaps the most significant consideration, in my view, relates to the severity of the misconduct, the penalty the employer chose to impose and how that fits, or not, into a scheme of progressive discipline.

129The complainant’s misconduct was serious and, at least in some respects, replicated earlier conduct which had been the subject of discipline. Having regard to the foregoing, however, the conduct was, while serious, less serious than the employer’s assessment. She had a prior 10-day suspension. In this Vice Chair’s experience, a 10 day suspension is not typically the penultimate disciplinary sanction in the application of progressive discipline (see for example Section 35 of the Public Service of Ontario Act, 2006, which authorizes the imposition of a suspension without pay for up to 20 days).

130On the other side of the ledger are many of the concerns articulated by the employer, principally those which question the likelihood that progressive discipline in this case will achieve the intended result. And while I have declined to sanction the severance of the employment relationship at this juncture, I share many of those concerns. The complainant has an impressive history of attitudinal issues which demonstrates little real concern on her part for her employment relationship or its remediation. She declined to participate in any internal efforts to deal with diversity concerns in the workplace – she failed to appear at those scheduled meetings. She failed to appear at the hearing at this Board concerning her prior discipline. She failed to attend meetings or provide any input during the investigation of her misconduct. She failed to attend at the initially scheduled mediation hearing in the instant case. And in virtually all of those instances, she failed to exhibit the common courtesy of providing advance notice of her non-attendance, displaying little concern for the time of all those who had assembled.

131And, in an undoubtedly related manner, before me, Ms. Egesi showed precious little in the way of acknowledgement of or remorse for her misconduct. The only exception was an acknowledgement, grudging though it was, that she had made some mistakes in her handling of the civil litigation (and the identification of the Does).

132In short, like the employer, I have real concerns about whether Ms. Egesi has a true appreciation for the seriousness of her conduct or a real and abiding commitment to the rehabilitation of her employment relationship.

133In that context, it is imperative that the seriousness of the situation and the potentially tenuous employment circumstance Ms. Egesi is now in, even with the reinstatement I am directing, is made abundantly clear in the penalty imposed. While she is being reinstated by this award, she returns to a precarious position, potentially perched on the precipice of termination should she engage in any remotely similar misconduct.

134In view of all of the above, I direct that, for the purposes of her disciplinary record, a 20-day suspension is to be substituted for the discharge in this case. Ms. Egesi is to be forthwith reinstated to her former position without loss of seniority or benefits. In all other respects, the reinstatement directed herein is to be without compensation.

135To the extent herein set out, the dispute is allowed. I will remain seized in the event the parties encounter any difficulty in the implementation of this award.

Dated at Toronto, Ontario this 12^th day of December 2013.

Association of Management, Administrative and Professional Crown Employees of Ontario (Egesi) v. The Crown in Right of Ontario (Ministry of Finance), 2013 CanLII 87767

Case Summary

IN THE MATTER OF AN ARBITRATION

BETWEEN

Association

Association of Management, Administrative and Professional Crown Employees of Ontario (Egesi) v. The Crown in Right of Ontario (Ministry of Finance), 2013 CanLII 87767

Case Summary

IN THE MATTER OF AN ARBITRATION

BETWEEN

Association