GSB#2011-0951, 2011-0955, 2011-0956, 2011-0958, 2011-0979, 2011-0980, 2011-0983, 2011-1051, 2011-1088, 2011-2932

UNION#2011-0368-0065, 2011-0368-0069, 2011-0368-0070, 2011-0368-0072, 2011-0368-0081, 2011-0368-0082, 2011-0368-0085, 2011-0368-0090, 2011-0368-0093, 2011-0368-0204

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Marsh et al)

Union

• and -

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

Employer

BEFORE

Barry Stephens

Vice-Chair

FOR THE UNION

Adrienne Lei Dewart Gleason LLP Counsel

FOR THE EMPLOYER

Jennifer Richards Ministry of Government Services Legal Services Branch Counsel

HEARING

September 4, 26 and October 31, 2013

Decision

1This case involves an allegation that the employer violated the collective agreement and Occupational Health and Safety Act (OHSA) by imposing discipline without just cause and by engaging in workplace harassment. The grievances all relate to a meeting with staff on June 1, 2011, during which it is alleged that the employer threatened to report employees to their regulatory body, the College of Nurses of Ontario (CNO), and engaged in other activities that breached the rights of the grievors.

2The grievors are all members of the health care department at the Central East Correctional Centre (CECC). The grievors allege that the supervisor in the department, Ruth Dixon, created a “poison atmosphere” in the workplace that culminated in the disputed meeting that took place on June 1, 2011. The grievors allege that at the meeting they were advised they had been under investigation, although they had received no prior notice of any investigation. They also grieve that as a result of the “investigation” they were advised they would be unfairly assigned to “segregated” break times, a system not applied to Correctional Officers (CO’s), and threatened that the employer might report them to the CNO for unprofessional behaviour.

Evidence

3Michelle Murphy is a Registered Practical Nurse (RPN) at CECC. She has been a union steward for approximately 4-5 years. She described in general terms the roll of the nursing staff in the institution, stating that the inmate population presented with diverse illnesses, injuries and mental health issues.

4Murphy described Dixon’s management style as “less collaborative, more directive”, asserting that Dixon did not welcome input from staff and, as a result, created a very stressful work environment. She stated that, as a result of the atmosphere created by Dixon, she felt “very uncomfortable” whenever she came on to the unit, as it seemed there was always something wrong. She stated Dixon did not provide any positive feedback but was quick to point out any minor error. Murphy stated she found the workplace so difficult she had a habit of staying in the office as much as possible until her shift was over.

5Murphy attended the meeting on June 1, 2011. She testified that Dixon was present for management throughout the meeting but that Kathy Maccarone, the Deputy Superintendent of Administration, joined the meeting part way through. She recalled that the meeting started collaboratively enough, with some discussion of different issues. She stated that the meeting atmosphere changed very quickly when Maccarone joined the meeting. She testified that that Maccarone sat down with her arms and legs crossed in a pose Murphy described as “very authoritative.” Maccarone announced that there would be planned break times starting as of June 6, and that this change was being introduced as a result of an “investigative process.”

6Murphy testified that she was surprised, since it was her understanding that an employee under investigation has a right to be informed about the investigation. Another employee asked why the medical staff was being singled out with respect to breaks, given that CO’s at CECC were not subject to assigned breaks. She confirmed that there was a discussion about whether the nursing staff would be required to respond to emergencies while on breaks. Murphy stated that she and the other nursing staff “…did not understand where all this was coming from”, especially given there had been an investigation no one knew about. She said she felt personally threatened, and that the employer was threatening her license based on unsubstantiated allegations. She testified the grievance was filed because the employees felt “threatened and bullied” both with respect to the investigation and about being reported to the CNO.

7Murphy also testified that, as far as she remembered, Maccarone did much of the talking during the heated exchange that took place, and that Dixon did not say very much.

8When asked to describe the impact of the meeting on her, Murphy said that, while she had previously felt uncomfortable coming into work, after the meeting she was fearful and she testified that she would pull into the parking lot and sit in her car before work feeling like she would “throw up or soil myself” just thinking about going into work and that “everything I did was being scrutinized.” She testified it made her consider getting a job elsewhere even though she loves her job. However, it was revealed under cross-examination that Murphy had continued to accept significant amounts of overtime in the months after the meeting (25 hours in June, 39 hours in July and 56 hours in August), while her levels of sick leave remained constant.

9Murphy also agreed that the employer had raised concerns about employees over-staying their one hour unpaid meal breaks, and she agreed there were nurses who were extending their lunch breaks. She also confirmed that employees are paid during the other breaks. Murphy stated that employees are not permitted to leave the building during the non-lunch breaks, and that are expected to respond in case of an emergency. She also conceded that it would be a breach of professional ethics for a nurse to fail to respond to such an emergency.

10Jay Marsh is also a full time RPN. He started at CECC approximately ten years ago. He testified that Dixon’s managerial style was to “create division” and that “everyone got into trouble for someone else’s mistakes.” He felt like he could not approach her with any issues. Problems were addressed, he said, as a group rather than on an individual basis. Staff morale went down under Dixon’s leadership and continued to deteriorate as time went by.

11Marsh acknowledged that there were employees who took too long on lunch breaks, but he asserted that those people should have been spoken to individually.

12With respect to the meeting of June 1, Marsh testified that the nursing staff felt upset because they were being held to a different standard than that imposed on CO’s. Unlike Murphy, Marsh remembered that Dixon at least introduced the topic of the structured breaks, although his memory did not appear to be clear. He also testified he remembered Dixon referring to the CNO at least once. He testified that he filed the grievance because did not like the fact that he and his co-workers were under investigation.

13Denise Clark is an RPN who started at CECC in approximately July 2004. She testified that lunch breaks typically had been a time for the nursing staff to get together to discuss issues related to what was going on at the institution that day. She also testified that Dixon’s managerial style was “definitely not an open door policy”, and that the atmosphere in the workplace was tense and stressful as a result.

14Clark attended the meeting on June 1. She stated that when Maccarone arrived there was a discussion about how to organize the meal breaks in the future. She stated that the employees were upset about the proposed change to the lunch breaks and some asked why they were being treated differently. Clark testified that the employer representatives at the meeting responded by stating that the employees were all subject to the professional responsibilities of nursing, and are held to a higher standard that included the possibility of being reported to the CNO. She said she felt “harassed and intimidated”, “threatened” and that she “feared for her job” as a result by the statements since she was aware of her professional responsibilities and did not “need someone reminding me of them.”

15Debbie Johnston is a full-time RN at CECC. She testified that Dixon’s managerial style was “nothing like I had seen before”, and was characterized by an attitude of “her way or the highway.” As a result, there was “tension in the air” at the workplace, and people felt “harassed and bullied.”

16Johnston said that the lunch periods were an opportunity for the staff to engage in “learning sessions”, especially with the new nurses. When Maccarone raised the possibility that the nursing staff would be subjected to “mandatory” scheduled breaks, some of the employees asked why they were being subjected to different treatment in comparison to the CO’s. The employer responded that the nursing staff was being held to a higher professionalism in a way that implied that if the employee did not do things the way the employer wanted they would be reported to the CNO. She testified that she felt “demeaned, bullied and harassed.” She also stated that Maccarone did most of the talking, that Dixon did not say much and appeared to be “taking a back seat” during the discussion.

17Johnston stated that, as a result of the employer’s actions at the June 1 meeting, she could not go into work because she was physically ill, and she had to go on stress leave. During cross-examination it was also revealed that during the meeting Johnston became quite upset, stood up and in a loud voice, proclaimed that she had to leave. She suggested she abruptly left because she did not want people to see her cry or vomit. She also agreed that the employees were talking over each other and over the voices of Dixon and Maccarone, so that the meeting became quite disorganized.

18Ruth Dixon is the former Health Care Manager at CECC. She described the June 1 meeting as a mandatory staff meeting. There was a formal agenda, and the agenda was distributed to staff in advance of the meeting. Dixon testified that she had a good relationship with the majority of employees but that there were “ten to fifteen percent” who did not appreciate her leadership style. She described how she had originally planned for the Deputy Superintendent to attend the meeting. The Deputy was routinely invited to staff meetings and Dixon testified that for this particular meeting she thought it would be useful to have the support of a senior administrative official at CECC due to the contentious nature of the issues surrounding the night shifts and breaks. However, the Deputy was called away for a family emergency shortly before the meeting, and Maccarone attended in her place.

19Dixon stated that she considered the June 1 meeting very important because there had been a complaint from a nurse that some nurses were sleeping during night shifts and watching movies on the employer’s computers. There were also issues around extended or irregular breaks that had sparked complaints, including circumstances in which some nurses where having difficulty getting relief to take breaks, where there were difficulties maintaining appropriate coverage and other concerns. Dixon testified that, after discussing these problems with the administration of CECC, she agreed that the best way to handle the problems was not to impose discipline but to hold a meeting in order to clearly set expectations for the staff as a means of putting a stop to the inappropriate practices. She said Maccarone’s role was to demonstrate administration support for the new direction with respect to night shifts and breaks.

20Dixon stated that at the outset of the June 1 meeting she advised the employees that Maccarone would be attending but would be late. Then she proceeded to discuss other issues with the staff. When Maccarone arrived there was a discussion about the behaviour on the night shifts. Dixon stated she advised the nurses that it was not acceptable to sleep, except during unpaid breaks, and that the lights on the unit must remain on at all times. She also explained to them that it was not acceptable to take a mattress into a side room in order to sleep while on duty. In addition, she reminded them that it was not permissible to watch movies on the employer’s computers during work hours, or to bring in electronic devices for the same purpose. She testified that while providing this information she was sitting down and spoke with a quiet calm voice. No employees were disciplined, nor were there any plans to impose discipline, rather the employer intended to address the night shift issues by raising awareness of expectations among the employees.

21Dixon testified that, once she had articulated these expectations, the employees reacted negatively. She stated that one employee stood up and stated it is was unfair that nurses could not sleep at night, since CO’s slept in their chairs at their stations and nothing was done about that. Dixon said there was a lot of whispering and chatter going on among the employee group. Maccarone responded to the CO issue by stating that the nurses were subject to the CNO, while CO’s had no such “higher authority”, and that every nurse was accountable for maintaining professional standards. Dixon stated that no nurses had been reported to the CNO with respect to the concerns about the behaviour of staff on night shifts.

22The topic then turned to the organization of meal breaks. Dixon explained that the issue of breaks had been addressed in a memo in February 2010 to the nurses, in which the employer had set out expectations with respect to breaks. There had been complaints from fellow nurses about the fact that some nurses were taking extended breaks, which was increasing the workload for others, and reducing coverage. Dixon testified that both she and the Team Lead nurses had observed this problem. She described the memo as the “initiation of expectations” on the issue. At the June 1 meeting she advised employees of the employer’s decision to move to a system of assigned breaks, which Dixon described as standard practice in the health care field. The employer advised the employees that meals would be scheduled at three specified times, and there would be 45 minutes for lunch and 15 minutes for dinner.

23Dixon testified that this announcement also generated much whispering and chatter. She testified that Johnston stood up and “in a very aggressive and hostile” manner, stated that the employer was “punishing” the nurses, and that Johnston then went to the door where she made “disruptive noises.” In spite of the apparent discontent on the part of some at the meeting, there was discussion of the issue. Dixon stated that a nurse suggested the meal breaks should both be scheduled as two half-hour periods, and she accepted this suggestion.

24The negative reaction was evident. One nurse brought up the subject of responding to emergencies during a break. Dixon says she expressed her view that nurses are not required to respond to an emergency during an unpaid break, but that they would have to consider their ethical professional standards. In addition, she said she stated that a nurse who responded to an emergency during a break would be entitled to be paid, and also to be able to resume his or her break.

25Dixon also confirmed that Maccarone responded to employee questions about the break issue by stating that the employer had conducted an “investigation.” Dixon stated there had not been a formal investigation but that management had looked into complaints from nurses and others and concluded that a majority of nurses were not following proper procedures during night shift or with respect to breaks. She stated that it was because the problems were so pervasive that the employer decided it would not be right to impose discipline, but that it would be more effective and appropriate to first speak to all employees to establish clear expectations.

26Dixon testified that there had been more discussion about the breaks than about the problems on night shifts. After the break discussion was complete, the meeting moved on to other agenda items.

27Dixon testified that she left CECC in March 2012 because there was a small group of employees who were “targeting and belittling me, demeaning my management”. She said she felt she was being “bullied and harassed” and for her own well-being she accepted an assignment in another workplace.

28In cross-examination, Dixon stated that some of the nurses were speaking in loud voices when objecting to the employer’s planned changes, and that she felt she was being “challenged.” The parties also agreed to stipulate the fact that there was an ongoing poor working relationship between Dixon and some employees in the department, and that this relationship had led to the filing of WDHP complaints, and that this environment was relevant to the decision making with respect to the June 1 meeting, and afterwards.

29Kathy Maccarone is the Deputy Administrator at CECC. She testified that she attended the June 1 meeting as the representative of the administration at CECC in order to demonstrate to the nursing staff that management was backing the changes to the night shift and breaks that were being introduced by Dixon. One nurse had complained about other nurses sleeping in the first aid room for up to seven hours during overnight shifts, and the same nurse had identified many other issues related to nights. She stated that the senior administrative team was made aware of these issues, and took them seriously. She testified that she knew of the problems between Dixon and her staff. However, she thought it was important to react to the problems in the department by giving a “shot across the bow” to employees, an initial warning, so that employees would know that the employer was aware of the inappropriate practices and to remind employees of the employer’s expectations. She had not prepared any notes for the meeting, as she did not anticipate she would be called upon to speak, in that her presence would be sufficient to send the message that management was unified on the issues.

30Maccarone testified that when one nurse reacted by stating that nurses were being treated unfairly when compared to CO’s, she thought that it was not an appropriate response, since the problem of CO’s sleeping on the job would be dealt with “in another forum” and had nothing to do with nurses. In her view, she thought it was not acceptable for a nurse to defend sleeping on the job on night shift. In addition, she was not prepared to become involved in a discussion that would denigrate CO’s. That was why she responded by stating that nurses report to the CNO, and that they have a regulated license. She stated she hoped that the appeal to higher professional responsibility would be persuasive with the nurses.

31Maccarone testified that the employer’s proposed changes the breaks was a “bigger issue” to the employees than night shifts. When Dixon announced the employer’s intention to change to a system of scheduled breaks, there was “great discord” and the nurses began to speak over each other. She stated that Johnston stood up and said she “had had enough” and that nurses were being punished, at which point she “stomped out” into the hallway. She testified that she was “taken aback” when one nurse raised the issue of responding to emergencies during breaks. She perceived this as a threat that nurses would not respond in an emergency in reprisal for the employer’s decision to change the break structure.

32Meanwhile, a number of nurses were questioning her as to why the employer was making these changes. Everyone was “talking at the same time” and the meeting became somewhat confused. The employer’s announcement was not well received and, in general, the discussion was not helpful. She said there were “some questions, some accusations and some statements”, most of which were directed at her, not at Dixon. She advised the nurses that there had been “an investigation” and, as a result, the employer had decided to take measures to address the abuse of breaks, and that failing to do so would be negligent. She characterized the word “investigation” as a poor choice, since there had not been a formal investigation, but there had been some complaints and the employer had looked into the facts. She stated that the reaction and demeanour of some of the nurses at the meeting could have been construed as insubordinate.

Union Submissions

33The union characterized this case as one involving the employer’s right to reasonably discipline employees. That power arises under management rights and is fettered by the requirement of just cause. The union alleged that, in this case, the employer disciplined the employees without just cause, and that this was demonstrated by what was said at the meeting, both in the manner in which the employer made its comments and in the intent behind the employer’s statements.

34It was clear from the evidence, the union submitted, that the employer perceived the grievors and other employees as presenting a challenge to employer authority. However, none of the allegations were substantiated with respect to the behaviour of the employees. Rather, it was clear that the employer raised the threat of reporting employees to the CNO in order to force employees to “fall into line” with management authority or they would be reported to a higher authority. There was clearly no basis upon which the employer would have been justified in reporting the employees to the CNO. The topics discussed at the meeting were labour relations matters covered by the collective agreement, and were not issues within the purview of the CNO.

35The union submitted that the threat was serious. When an employer reports a nurse to the CNO it can have serious consequences, leading to the revocation or the suspending of the nurse’s license and the loss of employment. The union argued that the employer should be “held accountable” for the threats made at the meeting. The employer was aware the changes it proposed to introduce would be contentious, and that is why Maccarone was called upon to support Dixon. The workplace was already tense and morale was on a downward spiral. The employees all testified as to Dixon’s “my way or the highway” management style.

36The union submitted that the employer’s intention and demeanour, as well as the content of the message delivered to employees must all be considered in the context of the poor workplace atmosphere. Maccarone entered the meeting abruptly, assumed a prominent position and the atmosphere changed quickly. It was an intimidating situation for the employees. The meeting became heated and confrontational. In particular, the union was highly critical of the employer’s statement that the employees were subject to the CNO and could be reported to that body, a statement the union alleged carried the implication that employees could face professional penalties for resisting changes to break times. In addition, the union criticized the employer for using the word “investigation”, which Maccarone admitted was a poor choice of words.

37There was a conflict of evidence over precisely what was said. The union submitted that the conflict should be resolved in favour of the grievors, since all of the employees who testified confirmed that the employer asserted that they could be “reported” to the CNO, not merely that they were responsible to that body. Moreover, the union objected to the employer’s version of how the issue of responding to emergencies was raised. The union submitted the topic came up a question, not a statement or threat. The union asserted there was no reason why the employer should have felt called upon to intimidate the employees with respect to their professional responsibilities, since they were all aware of those responsibilities and there was nothing to indicate otherwise.

38The union was critical of Dixon’s evidence and her written report about the June 1 meeting, and argued that her account was focused on the behaviour and reaction of the employees. This was evident in the fact that her written report contained some 13 references to the reaction and attitude of the employees.

39The union argued that the bottom line was that Dixon admitted to feeling “challenged” by the employees, and in response to that challenge the employees were threatened that they would be reported to the CNO. There was no other reason to make such threats other than to get the message across that if the employees did not comply with management direction they would be reported to the regulatory authority governing their licenses. No employee in the room had committed any professional misconduct, so the employer’s behaviour can be explained in no other way.

40The union argued that the employer is not free to repeatedly threaten to report employees to the CNO simply because those employees were questioning the terms and conditions of employment. Nor is the employer entitled to use such a threat when it feels challenged or overwhelmed at a labour relations meeting. This was not a passing or innocent reference, but a reference repeated several times and calculated to strike fear into the hearts of employees, to silence them, to force compliance and to cut off debate. The employer has a right to control the workplace, but there was no indication at the meeting that the employees would not comply with the employer’s direction.

41The union submitted that the employer’s actions were intended to intimidate and threaten the employees. The threat was real and serious. As a consequence, all of the employees felt harassed, intimidated and bullied by the comments. They expressed fear for their jobs, and emotional difficulty being in the workplace. The employer was well aware that its comments would be unwelcome and the sole purpose had been to force compliance from employees who were considered to be disgruntled and difficult to manage. This was contrary to the collective agreement, as well as to the Bill 168 provisions that now form part of OHSA.

Employer Submissions

42The employer argued that all of the grievances were frivolous and vexatious, and that, even if all of the union’s evidence was true, there had no breach of the collective agreement or OHSA.

43The employer characterized the grievors as a group of disgruntled employees who became upset at any attempts to manage the workplace. They disliked Dixon’s style, and provided considerable evidence about the atmosphere in the workplace under her tenure. They even went so far as to demand as one of the remedies in this case that an order be issued that Dixon be prohibited from returning to CECC. No remedy was sought with respect to Maccarone. However, each of the union witnesses also testified that Maccarone was the individual in management who made most of the comments about the “investigation” and the CNO that they found so objectionable. From this perspective, the employer argued, there was a “clear disconnect” between the evidence adduced and the remedies sought. This demonstrated that the grievances were a bad faith attempt to target Dixon as part of a wider campaign to have her removed.

44The employer argued there were differences between the testimony of the union witnesses over whether Maccarone was introduced, who did most of the talking, and how long the meeting lasted. The employer stated that Johnston testified that the information presented at the meeting caused her considerable grief, yet she could not recall who made the most offensive comments. Moreover, during the meeting she got up and walked out, without asking permission, and yet claimed that her conduct was strictly professional throughout.

45While all of the grievors testified that they had been harassed, there was no objective evidence of such harassment. Indeed, the employer asserted, even if all of the statements testified to by the union witnesses were accepted as true, there would still be no evidence of harassment, and no reasonable or objective observer could reach any other conclusion. It was important to note that none of the witnesses testified that they had been yelled at, or spoken to in an aggressive manner; rather they simply did not like the information they were hearing. The employer characterized the evidence of the impact of the meeting on employees as “dramatic” and “highly exaggerated.” For example, Murphy claimed that she filed a grievance because she felt harassed and bullied, and that she felt like vomiting before entering the workplace. Yet, even though she alleged she hated to come to work, she worked significant overtime hours in the months following the meeting, and there was no indication of an increase in her sick leave. Johnston, meanwhile, alleged that she had been off on stress leave, but there was no evidence provided that her medical leave was in any way connected with this case, so no weight can be given to that claim.

46The employer argued that it was not logical for employees to claim to feel threatened about the discussion with respect to the CNO. In context, the only issues being discussed were sleeping on the job and taking improper breaks. Why would any reasonable employee be fearful of being reported to the CNO with respect to such matters?

47With respect to remedy, the union sought an order barring Dixon from acting as unit manager, and preserving the current manager in her role. The employer submitted this was a remedy that was outside of the power of a vice-chair to impose.

48The employer submitted that the nurses were not ambushed or tricked into attending a meeting without notice. Rather, they had been given the agenda in advance, and they were offered the opportunity to add their own agenda items. Although there was much concern expressed by the grievors about the fact that Maccarone attended the meeting, it is not an employee prerogative to stipulate who can attend meetings called by management, and the issue is irrelevant. There was no obligation to advise the employees in advance of Maccarone’s attendance at the meeting but, even in context, it was something planned at the last moment due to the unavailability of another manager, and there was no conspiracy or intent to intimidate. Moreover, the poor relationship between Dixon and at least some of the employees explains why it was sensible for a senior administrator to attend.

49As for the content of the information provided at the meeting, employer counsel stated that it “seems ridiculous” that professional nurses had to be reminded that it is not appropriate to sleep on the job, but that this became necessary as a result of the information that had come to the employer’s attention with respect to employee abuses on night shifts. Dixon provided the employer’s perspective in a calm and professional manner. While it was reasonable to assume that the discussion would cause the nurses some embarrassment, it was nonetheless surprising that one nurse stood up and said it was not fair because CO’s were sleeping on the job. It was at this point that Maccarone spoke up and made her point that nurses have a professional responsibility to a higher body, while CO’s do not. There was no threat or even a suggestion that any employee was going to be reported to the CNO as a result of the discussion regarding night shifts.

50The discussion regarding breaks, which was more contentious, was a follow-up to the employer’s previous attempt in February 2010 to remind employees of the need to conform to expectations. Unfortunately the February 2010 memo did not solve the problem, and the behaviour continued. The employer decided to avoid discipline and to hold a face-to-face meeting in order to clarify expectations. The idea was to make a fresh start rather than to look into individual misconduct and impose discipline. It was clear, however, that the employees did not respond positively to the information they were provided. Rather than considering the information and offering reasoned disagreement, some of the nurses reacted by suggesting they would not respond to emergencies. It was appropriate for the employer to respond to such a suggestion and, in doing so, to remind the employees of their professional ethics.

51The employer pointed out that there was some constructive discussion about the breaks, and that Dixon readily agreed to suggestions, including the suggestion that the meal breaks be set at a half hour each, instead of the initial employer suggestion of 45 minutes for lunch and 15 for dinner. Employer counsel noted this evidence indicates the positive attitude with which the employer had approached the meeting, and belies the union suggestion that employees were harassed and intimidated.

52With respect to the use of the word “investigation”, Maccarone admitted she used the word. She testified, however, that the employer would have been irresponsible to ignore the information it had been provided. In this context, the meeting was a standard meeting to set out expectations where bad practices had crept into the workplace, and was a better alternative to discipline in all of the circumstances, particularly given that it appeared that a majority of the nurses were not following proper procedures. Had the employer disciplined first, the union would certainly have argued, in such circumstances, that the practice was open and notorious and had been, in effect, condoned by the employer. Management clearly made the right decision in calling an expectations meeting, rather than imposing discipline, even if employees did not react appropriately.

53The employer submitted that the statements about the CNO to which the employees objected were prompted by the statements and questions raised by the statement that appeared to defend sleeping on the job and the suggestion that nurses might refuse to respond to emergencies while on breaks. The employer’s comments did not “come out of nowhere”, and must be understood within the context of the behaviour of the employees at the meeting. From the employer’s perspective, reminders about the professional obligations of nurses appeared to be necessary and appropriate given the interjections of the employees expressing resistance to reasonable changes in workplace practices. The employer argued that there was nothing in the employer’s responses at the meeting that amounted to discipline, harassment or intimidation, and that the grievances should be dismissed.

Conclusions

54The parties agreed that I would first decide the issue of whether the employer’s comments at the June 1 meeting constituted a breach of the collective agreement or OHSA, and that I would retain jurisdiction to deal with any issues of remedy arising from this decision.

55The union argued that the employer breached the collective agreement by imposing unjust discipline, and violated the provisions of OHSA by harassing and intimidating the grievors. These allegations arise with respect to the comments made by employer representatives at the meeting on June 1, 2011. The impugned comments dealt with two topics, night shifts and breaks. The question before me is whether the comments support a conclusion that the employer committed a breach by imposing unjust discipline, or engaged in harassment and intimidation, or engaged in any other breach of the employees’ rights under the collective agreement and OHSA. I will consider these questions in light of the evidence with respect to the discussion of each topic at the meeting.

Warning re Night Shifts

56I cannot agree with the union submission that the employer imposed discipline on, or improperly harassed or intimidated any of the employees during the discussion of the night shift problems.

57The night shift portion of the meeting addressed the inappropriate behaviour of employees, and the essence of the employer’s presentation was that employees should not be sleeping or watching movies during night shift. This was a simple message, and one would think that all employees, professional or non-professional, would know not to engage in such activity without having to be reminded. All employees should be aware that such behaviour is inappropriate and that anyone caught engaging in them would be subject to discipline.

58Given the straightforward and unquestionable soundness of the employer’s comments on the subject at the meeting, what followed was somewhat surprising. Both Maccarone and Dixon described how a number of the employees began whispering and talking among themselves, evincing some discontent with what they were being told. Then one nurse spoke up and cited the “unfairness” of being told they could not sleep on the job because CO’s were also sleeping on night shifts. The fact that this comment was the reaction articulated first by the nurses indicates to me the difficulties being faced by the employer in addressing the issue under discussion. Dereliction of duty, either through sleeping on the job or engaging in non-work activities, is a serious workplace offence, an offence for which severe penalties may be imposed and sustained in any workplace. Even if the nurses were aware that CO’s were sleeping on the job, it是有 does not alter the fact that it is wrong, and it is difficult to imagine that any nurse would have thought otherwise. In essence, the suggestion was being made that since other employees were committing a workplace offence, nurses should be permitted to do the same. This is not a logical argument, nor is it ethical.

59It is difficult to understand why any objection was raised to the employer’s statements about the night shift, since Dixon and Maccarone were merely reminding the employees of their fundamental obligations, and doing so in a manner that did not carry a threat against any individual employee. The employer had opted to clarify expectations (although, as noted above, no employee should have needed such clarification) rather than to impose discipline. No employees were singled out, no one was called upon to defend his or her behaviour, and there was no discipline imposed. It was, as Maccarone described it, a “shot across the bow”, a fair warning. In my view, the employees should have accepted that they were being called on some poor behaviour, and should have counted themselves fortunate no one was being disciplined.

60When faced with the fact that some of the nurses appeared to be exhibiting resistance to the idea that they were not to sleep or watch movies while on duty, Maccarone opted to appeal to and remind them of their professional ethical obligations. She could have done far worse, and it is difficult to see how she could have done better. The nurses could not have seriously expected that the employer could remain silent in the face of such an obviously untenable appeal to “fairness.” The fact that some of the employees took her response negatively says more about them than it does about their managers.

61I heard considerable evidence from the grievors about the poor working relationship between Dixon and the nurses. I am not seized with that general issue, as I understand that is before another Vice-Chair, and I am not in a position to assess the validity of the employees’ concerns about Dixon’s management style with respect to other incidents. However, it appears to me that the troubled relationship experienced by some employees may have been relevant, in that it may have led them to react unreasonably to what I would characterize as an appropriate and even-handed management response to dereliction of duty. I note that it was Maccarone, not Dixon, who made the reference to the CNO that the grievors found most troubling, so the connection to Dixon’s management style is, at best, of secondary significance. Taking the union’s case at its highest, even if Maccarone made a specific reference to the reporting relationship between nurses and the CNO, it takes a leap of imagination to decode such a reference as a threat. It is a statement of fact, and one that was prompted by the inappropriate reaction of some employees to the employer’s comments. No manager can be faulted for reminding employees of the obvious, that they should not sleep or watch movies while they are being paid to work. Given that the employees verbalized opposition to being so reminded, it was not an overreaction for Maccarone to emphasize her message by putting the discussion in the context of the professional obligation of nurses to uphold standards of ethical practice. I do not agree, as was asserted by the union, that the CNO would not be involved or interested in issues touching on the collective agreement and working conditions. I am certain the College would be concerned if the care or health of a patient were to be compromised by the failure of a sleeping or distracted nurse to perform his or her duty.

62As a result, I fail to see how the existence of a poor relationship between the employees and Dixon (even if it is assumed that Dixon was solely responsible for that poor relationship) would in any way explain or justify the reaction of the employees to the employer’s attempt to manage inappropriate workplace behaviour. In my view, nothing in the employer’s approach to the issue of the night shifts or the delivery of its warning at the meeting, including the reference to the CNO and the professionals status of nurses, can be used to support a conclusion of unjust discipline, harassment, intimidation or any other breach of the collective agreement or OHSA.

Changes to the Break Routine

63The second part of the meeting to which the grievors objected was the employer’s discussion around meal breaks, and the changes to break routine that the employer announced. The parties appeared to agree that this was the more contentious of the two issues. The grievors focused on the fact that the employer representatives at the meeting made further references to the CNO, and also used the word “investigation” when discussing the reasons for the change in break procedures. After reviewing the evidence, I have concluded there is no basis upon which I should conclude that the discussion regarding breaks breached the grievors’ rights.

64While the grievors argued that the context of the break discussion, and the entire meeting, was Dixon’s poor management style, the connection is tenuous. It appears that Maccarone was most prominent in the discussion of the break issue. She was the one who made almost all of the references to the CNO, and she was the one who used the word “investigation.” In other words, most of what the employees found to be offensive in the meeting can be attributed to Maccarone’s “management style”, not Dixon’s.

65It seems to me that the real context for the break discussion was the employer’s legitimate concerns about employee abuse of breaks, a concern not dissimilar to the problems on the night shift. The employer learned that employees were overstaying meal breaks and that this practice was very widespread. In fact, the practice was so pervasive that the employer concluded that the majority of employees were implicated, and that the abuses had caused workload problems for other nurses as well as led to complaints from others in the institution about poor service.

66Once again, the employer did not overreact to this information and did not move to discipline any employee. Rather, given the widespread nature of the problem, the employer quite properly determined that it should make changes to the break practices and also ensure that all employees were made aware of the fact that the abuse of breaks continued to be a serious problem. In this regard, I note that the employer had already taken the step, on February 23, 2010, of issuing a memo to all employees in order to remind them of their rights and of the employer’s expectations with respect to breaks, and that memo contained an explicit warning of possible discipline. However, this memo had apparently not been sufficient to rectify the problem.

67On one level one can appreciate that, even in a workplace without a strained relationship between management and employees, the employer’s decision to introduce a formal break structure would not have been well received. Nurses were being told that they were moving from a system where they had been trusted to act responsibly with respect to breaks without the need for close supervision, to a system where they were not to be permitted much freedom.

68It would not be true, however, to suggest that the employer’s decision to impose this new system was arbitrary or even surprising. The February 2010 memo was sufficient warning to employees that the employer was aware of the abuse of breaks and, quite reasonably, wanted employees to moderate their behaviour. However, the bad practices did not change. It is not too harsh to say that the employees themselves created the circumstances for the changes by failing to recognize at an earlier point that a system of flexible breaks can only be sustained by employees who demonstrate sufficient self-regulation. In this case, it appears the abuse of break time had grown to the point where it had become the norm. The fact that other nurses, as well as third parties, were complaining about coverage in the workplace is an indication that employees were not up to the challenge of scheduling and monitoring their own breaks.

69Thus, any discussion that was provoked by the announced changes to breaks should have been tempered by this realization that the employees, in essence, left the employer with few options. The grievors do not appear to have given much weight to this aspect of the problem, and in my view their reaction was unreasonable and misdirected. Rather than considering that the employer had a right to take action to stop abuse of breaks, some of the employees saw themselves as the victims of employer abuse.

70I have already dealt with the grievors’ objections to the employer’s references to the CNO in the context of the night shift discussion above, and the same conclusions apply with respect to the break discussion. Once again, one employee appears to have created the opening for another reminder of professional responsibility, this time by raising the question about whether employees would respond to emergencies during breaks.

71I am not persuaded that the “question” about responding to emergencies was an innocent matter framed as an honest inquiry. There is no logical connection between the scheduling of breaks and the ethical issue of whether employees should respond to emergencies during unpaid breaks. So, it was either a complete non-sequitur or it was, as the employer witnesses testified, intended as a clumsy threat of retribution in response to the employer’s decision to change the practice regarding breaks. I am inclined to view it as the latter, given the evidence about the dismay, disorder and consternation that appears to have been provoked among the employees by the employer’s comments. I accept the evidence of the employer witnesses that the issue was raised as an irresponsible threat. This illogical and unwarranted response was perhaps fueled by the prevailing tension in the workplace, which created circumstances in which some employees were too quick to find fault with the employer as a result of their opposition to Dixon. Whatever the reason for it, I would not characterize this exchange as a moment of which these nurses can or should be very proud.

72Given that an employee had raised the issue of not responding to emergencies, it is not a surprise that the employer felt the need to remind the nurses of their professional obligations at this juncture. Given the evidence, it seems that the reference to the CNO, and again its appears to have been Maccarone doing most of the talking, was an appropriate answer to an inappropriate “question” that carried the implication that employees might not respond to emergencies while on unpaid breaks. It is my conclusion from the evidence that nothing in the reference to the CNO in the context of the break discussion can be used to found a conclusion that the employer subjected the employees to unjust discipline, harassment, intimidation or any other breach of the collective agreement or OHSA.

73My conclusions are similar with respect to the employer’s use of the word “investigation.” Apparently the employees reacted badly to this specific word, as they understood it to mean a formal investigation, which they took to be especially threatening. They also asserted that they were entitled to notice when they are subjected to a formal investigation. Maccarone was prepared to concede that she could have used a better word. Be that as it may, Maccarone attempted to explain at the meeting that the origins of the employer’s response to the break issue sprung from complaints received from at least one nurse and by other affected groups in the workplace. The result of the employer’s investigation, or review, of those complaints revealed that the abuse of meal breaks was widespread. It was clear that none of the employees was under formal investigation in the sense that anyone was facing discipline. It seems somewhat disingenuous for the grievors to seize upon the word “investigation” and assert they have been victimized by the mere use of the word when the meaning was evident from the circumstances, circumstances moreover that had been created by the failure of a large number of nurses to properly govern themselves with respect to breaks.

74I agree with the union assertion that the employer perceived the grievors’ reaction on both issues to be a challenge to management authority. As should be evident in the comments above, I have reached the same conclusion. However, I do not agree that there was anything inappropriate in the employer’s reaction. On the contrary, given the poor response of at least some employees to the issues under discussion, the employer’s reaction was remarkably restrained. I tend to agree with Maccarone’s assessment that some of the employee behaviour bordered on insubordination. Even granting that there was a strained environment in the workplace, there was no reason for the employees to express unreasonable defiance to legitimate attempts to manage improper behaviour. Moreover, it was the employees who were responsible for the behaviour under discussion, and it appears a large number of them were at fault. One would have thought that, by this time, they would have reconsidered their behaviour and, rather than continuing to blame others, they would see themselves as, in large part, the authors of their own misfortune with respect to the warnings they received and the changes to which they objected at the June 1 meeting.

75The union asserted that the employer’s references to the CNO were wholly unnecessary, and that the grievors were fully aware of, and did not need to be reminded of their professional responsibilities. Given the comments made in response to both issues, this was apparently not the case. If they had been aware, or if that awareness had been in their minds during the meeting, it is unlikely that they would have reacted by defending the right to sleep while on duty or raising the issue of not responding to emergencies because they did not find favour the employer’s position with respect to breaks. To my mind, the employer’s reminder of the professional obligations was justified and apt.

76The union submitted that the employer’s written reports on the meeting were intended to place the employees in a bad light and to bring the focus on the employees’ behaviour. In reaching the conclusions I have reached above, I did not find it necessary to rely significantly on the written reports. Witnesses from both sides who were present for the meeting provided ample viva voce evidence as to what happened. Having said that, the behaviour of the employees during the meeting was, in my view, deserving of criticism and the employer’s reports reflect that reality.

77The union asserted that the grievors felt threatened, intimidated and harassed by the employer’s behaviour at the meeting. Those reactions do not strike me as authentic or reasonable in all of the circumstances. The employer was engaged in an attempt to manage improper workplace behaviour. The employee reaction was irrational and cannot be explained on the basis of the employer’s approach to the meeting. Even if these employees have legitimate grievances against Dixon or other managers, the issues raised at the June 1 meeting were legitimate workplace concerns, as both topics involved employee wrongdoing that, by any objective standard, the employer had every right and duty to correct. It is also significant that the aspects of the employer’s behaviour that the grievors complained about were not initiated by the employer, but were triggered by the inappropriate responses of some of the employees at the meeting. I do not find any fault in the employer’s statements or for the manner in which the meeting was conducted. On the other hand, it appears to me that the over-arching dispute between the employees and Dixon may well have clouded the better judgment of some of employees involved in this meeting.

78None of the above is intended to suggest that these employees should be expected to remain silent in meetings. Reasoned responses are appropriate, including principled disagreement. However, the reactions described above were neither appropriate nor principled.

Decision

79As a result of all of the above, and after giving careful consideration to the evidence and the submissions of the parties, I have concluded that the allegations that the employer breached the rights of employees during the meeting on June 1, 2011 are without merit and are hereby dismissed. It is my understanding that this conclusion entails the dismissal of all of the grievances before me but I retain jurisdiction in the event there are any other outstanding issues that require disposition.