GSB#2008-3753

UNION#2008-0502-0019

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Louis)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair and Holmes LLP Barristers and Solicitors Counsel

FOR THE EMPLOYER

Susan Munn Ministry of Government Services Legal Services Branch Counsel

HEARING

August 18, October 27, 2011, May 3 & 14, 2012, March 7 & 14, 28, 2013

Decision

The Proceedings

1This grievance alleges that the grievor was harassed and subjected to racial discrimination at the hands of her coworkers. She says that she reported the situation to her Manager, her Director and to Human Resources personnel, but no action was taken. The Union says that there were violations of Articles 2, 3 and 9 of the Collective Agreement.

2The Employer says that the grievor was an employee who had differences with colleagues, and management tried to support her in resolving those differences. The Employer says that it acted appropriately in taking the actions that it took to resolve the interpersonal differences between the grievor and other employees.

The Evidence

3The grievor testified on her own behalf. She said that she began her employment with the Ontario Public Service in 2003 as a contract employee. She applied for and was awarded a permanent position in 2005 with the Ministry of Transportation as a production coordinator in the Corporate Correspondence Unit. Her Manager was Mr. John Cooper.

4She was initially trained to scan correspondence into the Correspondence Tracking Information System (CTIS) programme. She testified that the employee who had trained her told her that she had messed up the system by scanning in correspondence upside down. She said that she became paranoid of making an error. She also testified that for the first 8 to 10 weeks all she did was scan in correspondence. Other employees, at her level, were performing other, more sophisticated duties. Accordingly, she sent an email to Mr. Cooper asking for an opportunity to review with him what duties were encompassed in the position.

5When she met with Mr. Cooper she told him that she wanted to become more involved. He had a coworker, Zenaida Salvador, meet with her for training purposes. She was shown how to prepare a report for the Minister's office. Mr. Cooper also asked the grievor at that time if she had any fresh ideas to contribute to the running of the department. She suggested a weekly team meeting, which was implemented. She also raised a concern with him that signature books and files for edits which came from the Minister's office were being hidden from her and that another coworker, Nina McMillan, told her that limiting her to scanning and entering of correspondence was an initiation, in the nature of a hazing.

6The grievor testified that she never expected an initiation. She had expected to be trained in the duties of her position. Nina McMillan had been assigned by Mr. Cooper to train the grievor. The grievor saw Ms. Salvador training a temporary contract worker in detail on all office functions. She testified that she realized that she was on her own, being initiated; no one was showing her the duties of her position. The grievor approached the contract employee, named Sarah, and asked Sarah to show her what she had learned. Sarah went through in detail the duties that she had been taught and the grievor copied her notes. Seemingly, a further meeting had been scheduled with Nina to show the grievor what duties were expected of her, but she suggested to Ms. McMillan that the meeting be canceled because she had already been shown by Sarah what the duties of the position were. The grievor testified that Ms. McMillan had been very aggressive towards her. She also said that, after that meeting, if she asked either Ms. Salvador or Ms. McMillan for help they would either give her wrong information or tell her that they did not know the answer to her question.

7The grievor testified that she was anxious to cancel that meeting with Nina at which she was to be shown the duties her position because Nina had shown her so much aggression at their first encounter. She also said that she would sit alone at her desk for lunch because she did not know anyone. The grievor testified that on December 13, 2005, upon returning from lunch, Ms. McMillan came up to the grievor, touched the grievor on her forehead and said, "We do not want you here." When the grievor objected, Ms. McMillan did it again. The grievor went to Andrew Tausz; on that date he was acting manager for Mr. Cooper. The grievor testified that she was frantic. She told Mr. Tausz that Ms. McMillan had attacked her. His reply was that, “ She's like that with everyone.” The grievor left and returned to her workstation. She said that after that incident whenever she passed Ms. McMillan in the hallway on the way to the printer she would have to squeeze past her or give her room to pass. She also testified that everything she printed disappeared. The next morning, Mr. Cooper told her that if she thought that the incident was racially motivated she should let him know. Her reply was that she was brought up to stay out of trouble and pray about it. She said that every morning she was afraid to come to work. A couple of days later she came to work in tears and Mr. Cooper told her to go home and see her doctor. Mr. Cooper also told the grievor that Ms. McMillan was on a secondment ending December 28, after which she would be gone.

8The grievor contacted Angela Coke, a person she had met at an event put on by the support group BOPS (Black OPS' ers). She arranged to meet Ms. Coke. She also contacted an HR Advisor, who said she should document the event. Accordingly, she sent Mr. Cooper an email, dated December 15, 2005, which reads as follows:

It is with much pain that I had to put pen to paper, but I feel as an employee of the OPS you need to know how traumatized I am. The incident that occurred on Tuesday, December 13, 2005 at approximately 1:30 PM and 1:34 PM with Nina McMillan is as follows:

1. On December 13, Nina McMillan attacked and assaulted me two times at my desk at my workstation;

I did not realize how this incident has seriously impacted me. I am having sleepless nights, waking up in the middle of the night with cold sweats, I am crying and trembling, and did not want to come to work. The past two nights, Tuesday and Wednesday was horrible for me. I have had nightmares and waking up many times during the course of the night. I find myself being afraid to walk the lonely corridor, which leads to our office because I'm afraid that Nina may attack me again. Instead I use the corridor inside the office where George Ratte and the administrative assistance sit, because I feel somewhat safe. I'm also afraid to sit at my workstation when it is only Nina and myself in the area. I am constantly looking over my back in fear, because I do not know if she will attack me again. I do not think that any employee should go through this. Why do I have to go through these mental and emotional tremors?

John I thought to myself, should I continue to remain in silence and suffer and that time would heal – and it would be all right – or be courageous and let you know how I feel. I chose to do the latter.

As a visible minority, I have to work twice as harder to achieve things in life and I am very traumatized.

Please let me know how I can feel safe in my work environment and I will not be victimized Nina McMillan. I am suffering emotionally although I know she will be leaving at the end of December, I am afraid.

9On the record before me, there does not appear to have been an immediate email response from Mr. Cooper to this email from the grievor.

10In a meeting within a few days of this incident, Mr. Cooper came to the grievor to talk to her about it. She testified that she was crying uncontrollably. He told the grievor to speak with a counselor at the Employee Assistance Programme (EAP) and then to go home and see her doctor. The grievor ultimately began seeing a counsellor through the EAP. She also attended the East End Community Health Center and obtained the following note, dated December 17, 2005 from a Nurse Practitioner:

Avril was seen in our clinic today detailing the circumstances of her job related stress. She feels unsafe at work because of the presence of another worker whom she feels has shown some aggression toward her and she feels she cannot be at work until this person leaves.

Avril's account of her emotional and physical problems this week are consistent with a stress related syndrome. We hope that you are able to work with her through employee assistance to resolve these issues and to assure her safety or offer her a short term stress leave option until the identified person has left the work environment.

The grievor testified that she returned to work and provided that letter to Mr. Cooper. Mr. Cooper told her that it was not a note that would permit him to authorize leave. Accordingly, she returned to the clinic and obtained a note, dated December 21, 2005, from Dr. Jeffrey K. Mills, which reads as follows:

Avril is a regular patient of our Health Center, followed by Barbara Hood, Nurse-practitioner. She was re-assessed on Saturday, December 17, 2005 for a recent workplace stress related issue.

I am seeing this lady in follow-up today. Her workplace problem, in particular with one colleague, as been getting worse over the past two months, especially in the past two weeks.

Avril would benefit from a short leave---it is reasonable for her to be OFF WORK from Monday, December 19, 2005 through Friday, December 23, 2005. As I understand, she would have statutory holidays on Monday and Tuesday next week, she should be able to RETURN TO WORK on Wednesday, December 28, 2005.

I hope this information is helpful.

11This second letter was sufficient to permit the grievor to remain off work until December 28, 2005.

12When the grievor returned to work she learned that a good-bye lunch had been held for Nina McMillan while she was off on stress leave. She testified that she felt like being told to stay home was punishment. Meanwhile, they were “rejoicing”, so what Ms. McMillan had done to the grievor was acceptable, and that what had happened was that the abuser was treated to a party and she, the victim, was punished by being told to go home.

13The grievor encountered Nina McMillan on the Bay Street bus on January 5, 2006. This incident was documented in an email dated January 5, 2006 from the grievor to Mr. Cooper. It reads as follows:

Good morning John,

I just wanted to inform you that this morning at approximately 8:50, I was on a Bay Street bus and Nina McMillan came up to me and said "you Bitch" and went to pass me and sat two seats from where I was standing. I immediately, walk across the other side of the bus closer to the back door to speak to a friend, and closer to the door so when the bus gets to Bay/Wellesley I would be one of the first persons to get out so to avoid a confrontation with her.

This is just to let you know for future reference.

Thanks

14This email was part of the chain that included the email of December 15, 2005, set out above, to which Mr. Cooper had not replied. His reply to the chain on January 5, 2006 was as follows:

Hi Avril – – thanks for passing this along. I will keep a record of this as well. John

15As set out above, following the email of December 15, 2005, Mr. Cooper had suggested that the grievor contact the Employee Assistance Program, which she did. She started seeing an EAP Counselor and would send an email to Mr. Cooper when she needed time off for sessions with the Counsellor.

16The grievor testified that she needed help with her situation so she wrote to the Director of the Branch, Kimberly Bates. This letter is significant and Ms. Bates denies ever having received it. It reads as follows:

The purpose of this letter is to inform you that Nina McMillan on December 13, 2005, harassed me in the office. On January 5, 2006 Nina McMillan verbally abused me without provocation on my way to work on the TTC bus. Please find attached a copy of the report of the incident, which was emailed to my Manager, John Cooper.

The incident occurred on Tuesday, December 13, 2005 between 1:30 and 1:34 PM. Miss Nina McMillan attacked and assaulted me two times at my workstation. This incident has seriously impacted me. I've been having sleepless nights, waking up in the middle of the night with cold sweats, crying and trembling, and have had difficulty coming to the workplace.

I have had nightmares, waking up many times during the course of the night. I find myself being afraid to walk alone to the office because I'm afraid that Nina may attack me again. I'm constantly looking over my shoulder in fear, because I do not know if she will attack me again. I do not think that it is right for any employee to go through this. I have been very traumatized, and have had to take time away from work to try to heal. I've seen a counselor/therapist to help me deal with the situation.

Following the incident, immediately I reported it to my Manager, Mr. Cooper.

On January 5, 2006, Ms. Nina McMillan verbally abused me without any provocation on the public transit, TTC Bus at Bay Street station while on my way to work. I informed my manager through an email copy a copy of which is attached, (see email dated December 15, 2005 and January 5, 2006).

Following these incidents I spoke to staff Sgt. David Service on December 19, 2005 and staff Sgt. Barry Rutledge of the Ontario Provincial Police, Queens Park division on January 5, 2005 who advised me that these incidents are a Workplace Harassment Issue, and that I should report them to both my Manager, and Director for remediation.

I thought to myself, should I continue to remain in silence and suffer, or be courageous and let you know what I've been going through. I decided to make a formal complaint to you regarding these incidents of harassment towards me as a visible minority within the OPS.

I look forward to your assistance and hope that this matter can be resolved as soon as possible.

17It was her evidence that she handed the above letter to Kimberly Bates in her office on January 12, 2006. The grievor also testified that she had contacted the Ontario Provincial Police to report the incidents on December 19, 2005 and January 5, 2005. She testified that she was asked by the OPP for the name and phone number of her manager. The OPP came to speak with Mr. Cooper, but she did not hear anything back from Mr. Cooper regarding the outcome of that meeting. On that basis, she again contacted the OPP officer who had been to see Mr. Cooper. He told her that her office would be moving to the first floor from the third floor, which would improve the situation. She testified that the move did indeed remove the conflict in the workplace.

18The grievor testified about other incidents that she said had taken place in the workplace. In that context, she testified that her coworkers would bring the daily newspapers to work and comment on specific stories. She said that the summer of 2005 had become known as the "Year of the gun". On one occasion Ms. McMillan said that she would never allow her daughter to marry a black man unless he was a doctor since black men were violent. On another occasion Francine Zerafa noted that the province of Alberta was recruiting workers and had brought St. Lucian truck drivers into the Province to work. Her comment was, "They are importing slaves.” The grievor also testified that in June 2006, in the new office, she was a member of the winning treasure hunt team. Francine said, "What's the grand prize, a trip home to Trinidad?" The grievor replied that she could pay her own way for a trip to Trinidad. Another coworker, Denise Dugan told the grievor that she hurt Francine's feelings. In response to these events, the grievor sent an email to Mr. Cooper on June 29, 2006. That email specifically complained about the trip to Trinidad statement. There is nothing on the record before me that Mr. Cooper had been specifically told about the other comments.

19The grievor and Mr. Cooper spoke about the incident the next day. He was satisfied that Francine had not meant anything untoward by the statement because Francine had told him that she had black and Guyanese friends. Mr. Cooper denies that account. The following day the grievor spoke to another workplace colleague about the incident. She was crying and that person called Mr. Cooper. Again Mr. Cooper told her to go home for the rest the day and she interpreted that again as punishing the victim.

20Around the same time, in July 2006, Mr. Cooper told the grievor of a four-month opportunity in Kimberly Bates’s office as an administrative assistant. Mr. Cooper described that as a professional development opportunity. The grievor asked for a week to consider the option; she testified that she was given one day. She testified that it was work she had previously done and was classified as an OAG 8. Accordingly, she did not consider it as a professional development opportunity because she was working as an OAG 10. She told Mr. Cooper that she did not want the position. However, Mr. Cooper said that Ms. Bates had said that she had to take the position, so she did. She said that when she started, the incumbent had already vacated the position. Ms. Bates denied that. She said that she felt like she was just fumbling through. Accordingly, on October 16, 2006, she advised Mr. Cooper by email that she did not want to continue or extend the assignment. He said he would talk to Ms. Bates. In the meantime she called a Union person who said to resend the email that she wanted to return to work to her original position. She also testified that she had applied for an opening in the director's office but was not successful. She was told that her grammar was not up to the standard required. She felt badly about this and sent the email to Mr. Cooper telling him that she did not wish to stay in the office. She was also concerned that, because of a work assignment she had been given to cover for another employee, she missed doctors’ appointments and was told by Ms. Bates that she could not have time off to attend them. When she again needed time off she asked for it formally in an email dated October 17, 2006. She asked for time off on the afternoon of October 25 and on October 26 and 27th. Ms. Bates replied that she would refer the request to Mr. Cooper because he would be the one responsible for her transfer under the WIN system by the end of the month. The grievor saw this as another indication of the contingent nature of her position in the Director's office, in that she really did not know to whom she reported.

21The grievor returned to her home position on November 1, 2006. When she returned, Francine was gone and Mary Mazone had taken her seat. The grievor's desk was empty, but she asked if she could sit at the back of the room in order not to be a target of her coworkers. In the month of December she attended the funeral of a coworker’s mother. She came in to work about 1 p.m. She testified that Mary said to her, "We don't want you here." She reported that incident to John Cooper and he arranged for the grievor to meet with a human resources representative. The human resources representative told the grievor that she knew Mary Mazone to be a very condescending person. She also thought that the solution to the problem was for the grievor to look for a new job. The grievor also told this person of the previous incidents that she had been subjected to. Around the same time the grievor attended a sensitivity training workshop given by Maureen Lee-Grant of the WDHP. The grievor saw a lot of what was happening to her in the presentation made by Ms. Lee-Grant. Accordingly, she made an appointment to see Ms. Lee-Grant on November 26, 2006. On that day they met for about three hours and the grievor listed all the incidents she had been subjected to. Ms. Lee-Grant took notes and was concerned about how the grievor was coping with the situation. Ms. Lee-Grant suggested that the grievor call the EAP. The grievor was told by Ms. Lee-Grant that she would speak to her manager, Martha Smith, and get back to the grievor. The grievor never heard back from Ms. Lee-Grant. She called her again and was again told that Ms. Lee-Grant would call her back, but she never did. The grievor did follow up with EAP and started seeing a counselor again. However, the counselor suggested that she see her doctor. The grievor did go to see her doctor in early December, who prescribed antidepressants for anxiety.

22The grievor also described an incident, which took place on August 27, 2007. The grievor testified that on that day the receptionist had sent a member of the public to their office. The grievor’s office is a secure facility. The grievor answered the doorbell and the man at the door asked if Irina was there, as he had a meeting with her. The grievor checked the boardroom schedules and determined that no meetings had been booked. The grievor's office is not a public office. By the time the grievor returned to her desk, the person had become irate. The grievor described him as going "ballistic". The grievor went to the back door and called the OPP Officer, who dealt with the situation. Subsequently, the grievor and the receptionist got into an argument over the fact that this irate member of the public had been directed to their office. The grievor admits that she may have yelled at the receptionist to get away from her desk saying that she was sick and tired and had "had it". Mr. Cooper was not present that day. Andrew Tausz was standing in for him. His evidence relating to this incident is dealt with below.

23The grievor testified that she met with Mr. Cooper when he returned. She gave him her account of the incident, and he said that he had spoken to the receptionist who said that the grievor had sworn at her. Mr. Cooper told the grievor that there was zero tolerance for swearing. The grievor said that she reminded him of all of the previous incidents to which she had been subjected. She testified that he told her he had forgotten. She said that she was crying and felt that she was being punished. When she returned to her office she was shaking, afraid and had a strange feeling. She sent Mr. Cooper an email that she was not feeling well and was going home. His reply was, "Hi Avril. Yes, please take the time you need. Take care. John".

24The next day, Thursday, September 6, 2007 the grievor sent Mr. Cooper an email advising him that she would remain off sick that day. She also included the following:

After thinking about my conversation with you yesterday, I have come to the conclusion that Andrew has chosen to protect Liz and try to make me appear to be the instigator. I do not know for what reason, but the only thing I can say is that on the day of the incident, Wednesday, August 28, Andrew never came to speak to me or even took time to ask me what was the problem, instead he call (sic) Liz to his desk speaking to her, so I can only say he was being biased hence the reason for him telling you that I was swearing. If he has taking time (sic) to find out what was wrong he would have realized that Liz was harassing and trying to intimidate me.

The very fact that she made the statement "who does Avril think she is, I am going after her" in a vexatious manner was that she had a motive and was not trying to apologize to me as you may have suggested in our conversation yesterday, because by asking her to transfer calls to Tina Bucci when in doubt, which was work related and I do not see any reason for an apology.

As I told you yesterday, I respect everyone's space in the office. I also respect everyone's race, creed, religion or otherwise and I strongly believe that they should respect me too. It appears that I am a target and It (sic) is unfair to me that every time this occurs, I have to be the one to stay away from work and use my sick time. All I am doing is the Government of Ontario's work which I was employed to do.

25Shortly after receiving that email Mr. Cooper replied that he had set up a meeting for the two of them with the human resources rep, Heather Lynch, for the following Wednesday, September 12. The grievor sent Mr. Cooper a medical certificate dated September 10, 2007 excusing her from work for medical reasons with an estimated return to work date of September 20, 2007. A further medical note dated September 18, 2007 extended her medical leave to September 27, 2007.

26One day, while the grievor was off on sick leave, she was discovered by an acquaintance in a dazed state facing the Broadview subway station. That person took her to a mutual friend who took her to the emergency department of the Toronto East General Hospital. She went back to her family doctor who gave her more prescription drugs and sent her to Toronto East General Hospital to see Dr. Barsoum. She was diagnosed with major depressive disorder. Dr. Barsoum provided a medical note dated December 14, 2007, which reads as follows:

Ms. Louis is not sufficiently recovered to return to work the first week of January as originally planned. She will not be able to return to work for the next eight weeks, due to illness.

27The grievor testified that her condition got worse. She was hospitalized twice under Dr. Barsoum's care. In a medical note dated March 4, 2008 Dr. Barsoum set out that he expected the grievor to be ready to return to work in three month’s time. She saw Dr. Barsoum weekly. The grievor began receiving Long Term Income Protection (LTIP) benefits in March or April 2008.

28The grievor testified that also in March, which I take to be March 2008, she sent a detailed letter to the Secretary of the Cabinet, Shelley Jamieson. That letter is dated March 10, 2007, which appears to be a typographical error. The letter sets out in detail all of the incidents that the grievor testified she was subjected to. It also included a brief summary of the grievor's efforts to obtain management’s assistance in dealing with these matters. That paragraph reads as follows:

All these and many more incidents too numerous to mention were reported to my Manager, John Cooper. On January 12, 2006, I wrote to my director Kimberly Bates, and had a short meeting with her relating to my concerns and safety at MTO. I never received a response. On November 26, 2006 I had a three (3) hour meeting with Maureen Lee Grant of MTO's Workplace Harassment and Discrimination Unit regarding my concerns and safety at MTO, but to no avail.

29The grievor received reply correspondence, dated April 1, 2008, from the Secretary of the Cabinet. It noted that the grievor’s letter had been received March 25, 2008. Ms. Jamieson assured the grievor that the “Ontario Public Service takes your concerns very seriously.” And that the Director of Human Resources with the Ministry of Transportation, Alan Hogan, would respond to her directly. Mr. Hogan's reply correspondence of May 7, 2008 reads as follows:

Dear Ms. Louis:

Thank you for your letter dated March 10, 2008 to Ms. Shelly Jamieson, Secretary of the Cabinet. Ms. Jamieson has asked me to respond directly to you and I am pleased to do so.

The ministry takes allegations of this nature very seriously and violations of the WDHP Policy will not be tolerated. As such, I have reviewed the matter based on the information provided and conclude that management has taken appropriate steps to address the concerns you brought forward.

I understand that you are currently out of the workplace on LTIP. I wish to let you know that, as a ministry employee, your health and safety is of the utmost importance and upon your return to the workplace, the ministry will continue to provide support.

In the meantime I wish you a speedy recovery and look forward to your return to the workplace.

Regards,

Alan Hogan

Director, Human Resources Branch

30The grievor remained off work and receiving LTIP benefits. On October 1, 2008 Dr. Barsoum completed an "Ontario Public Service REQUEST FOR EMPLOYEE HEALTH INFORMATION". The gist of that report is that the grievor's limitations on returning to work were that she “requires transfer to another location for medical reasons.” He also indicated that it was anticipated that the grievor would have further absences. Specifically, she "remains off on LTD until transfer can be arranged." It seems that there was some investigation through the OPS Health and Wellness Department with a view to ascertaining the grievor's qualifications. Dr. Barsoum sent a letter dated October 15, 2009 to the OPS Center for Employee Health, Safety and Wellness setting out his rationale for the grievor's need to be transferred in the following terms:

Ms. Louis has been under my care for major depressive disorder since November 2007. A major depressive episode was triggered by discord with co-workers, which could not be reconciled in spite of her best efforts, and which escalated to the point that a grievance has been filed by her union on her behalf, based on allegations of racial discrimination and harassment. This experience caused her work environment to become extremely stressful and traumatic for her, to the point that she developed depressive symptoms, which led to her being off on disability. She is now recovered sufficiently to return to work, but based on my discussions with her and my knowledge of her situation, I am recommending that she be transferred to a new work assignment. Otherwise, if she were to return to the same work environment, where she was traumatized, it would be very likely that she would have a relapse of her illness and end up back on disability.

31By the time of the hearing, the grievor had returned to work in a different area. The grievor testified that this entire situation has had a profound effect upon her. She was not initially able to share her plight with her family because of the stigma mental illness has within her culture. She doesn't feel to be a valuable part of society. She cries easily, is anxious, still has trouble sleeping and is fearful of the stigma attached to mental illness. This fear prevents her from engaging in the volunteer activities that she was part of in the past, and she is terrified that she will make errors at work.

32The grievor's cross-examination consisted of Employer counsel going through the various allegations made by the grievor in chief and putting to her that Mr. Cooper, Mr. Tausz and Ms. Bates would deny the allegations as they pertained to each of them. The grievor was not dissuaded from strongly maintaining the veracity of her allegations.

33In her redirect examination the grievor identified two printed pages of her electronic calendar. The first, dated December 19, 2005 documented that she spoke to Staff Sgt. Service of the OPP. The second, dated January 12, 2006 identifies a meeting with Kimberly (Bates) and a meeting with Angela Coke. The grievor also identified an email dated November 14, 2006 that she sent to Maureen Lee-Grant attaching seven documents that she had requested at her meeting with the grievor. One document was the letter to Kathy Bates dated January 12, 2006.

34The Union also called Doctor Amir Barsoum to testify. His evidence was consistent with his opinion set out in his letter dated October 15, 2009, reproduced above. He also testified that the grievor was neither delusional nor psychotic at the time. Dr. Barsoum testified that he paid some attention to the cause of the grievor's depression and satisfied himself that the workplace issues were important. It was his view that the workplace issues were the trigger for an underlying condition. He presumed from the context and his treatment that the grievor had to have an underlying vulnerability or predisposition. It seemed highly likely to him that it was the workplace conflict that was the trigger because the conflict was at the forefront of the grievor's concerns.

35John Cooper testified on behalf of the Employer. He was the Senior Manager of the Correspondence and Editorial Services Unit of the Communications Branch of the Ministry of Transportation. He said that the grievor became a Production Coordinator as a result of a competition in 2005. The role of the production coordinator is to receive written or email communications directed to the Minister, enter them into an electronic tracking system and monitor them to ensure they are answered, following which they would be deleted from the system. He testified that the grievor would have received formal training in the Correspondence Tracking Information System. There was no formal training in exercising the duties of the position. Rather, Mr. Cooper relied on the other production coordinators to orient and train new staff. He would expect that a new staff person would be brought up to speed within several weeks. He said it is expected that production coordinators would share their knowledge in an informal way, walking new staff through the steps in order to get them trained on the system. He testified that the grievor never raised issues with him relating to not having been taken through the steps required to complete her job. He emphasized that her job did not include editing correspondence. Her job focused on the tracking of the correspondence received to ensure that it received a response. He said that there was a great deal of logging of correspondence that formed the basis of her job duties. She had many opportunities to work at her basic job functions.

36Mr. Cooper had no recollection of the grievor having complained to him about being upbraided for having left a document face down on the scanner. He said he became aware of that allegation during the grievance process. He testified that had he been made aware of that situation he would have talked to the employee who purportedly upbraided the grievor and sought a positive outcome from it. He said he would have talked to both parties and stressed with the grievor's coworker that it was not her job to criticize her colleagues in the workplace or implement corrective measures.

37Mr. Cooper had no recollection of the grievor having had any difficulties with Zenaida Salvador. He said that he did know that the grievor had issues with Ms. McMillan. He denied that the grievor told him that documents were being hidden from her and again said that he first learned of this allegation in the grievance process. He testified that it would not have made sense that correspondence would be hidden from the grievor because the job of the production coordinators is to get the correspondence into the system, through the system, process the correspondence and ensure it received a reply. Again, he said that had he been told of this incident he would have talked to both of them and reminded them of their responsibilities and he would have taken whatever steps necessary to ensure it wouldn't happen again. He also denied ever being told by the grievor that Nina McMillan told her that she was going through an initiation. Again, he said he first learned of this allegation in the grievance process and would have talked to both of them, asked them why they were doing so and remind them of their duties. He added that he would have contacted human resources since it might merit a reprimand. He said it definitely would have been addressed. He confirmed that both Ms. Salvador and Ms. McMillan were members of the OPSEU bargaining unit. He testified that Ms. Salvador still works in his unit, but he did not know where Ms. McMillan was working. He was certain that she was not working with the Ministry of Transportation. Neither was called to testify. He reiterated a number of times that whenever an employee raises an issue with him he would meet with that employee, document the concern, talk to the other employee and contact Human Resources so that the concerns are on the record. Mr. Cooper said that the grievor did not tell him the Ms. Salvador and Ms. McMillan had made aggressive hand movements towards her nor that Ms. McMillan acted aggressively when the grievor told Ms. McMillan she did not require any further training from her. Again, he said he first learned of that in the grievance process and would have followed the protocol laid out above. Mr. Cooper denied that the grievor ever told him that Ms. McMillan touched her on the forehead and said, "We don't want you here." Again he said he first heard this allegation as part of the grievance process and would have followed the protocol laid out above. He said that kind of physical threat and assault would be treated accordingly. He said it would have resulted in a meeting with himself, a Human Resources Representative and Ms. McMillan. It would have been documented and action would have been taken based on the recommendations from Human Resources. Mr. Cooper said that he had never been told by the grievor that she felt she was being discriminated against or harassed on the basis of race. Again he said he first learned of that allegation as part of the grievance process. Had he been told at the time, he would have contacted Human Resources in order to get assistance in resolving such a situation. He said the grievor never told him that Ms. McMillan said, within earshot of the grievor, that she would never let her daughter marry a black man. Again, he said he first learned of that allegation in the grievance process and would have followed the protocol set out above. He did agree that he was aware that Ms. McMillan and the grievor were not getting along. That is, that they did not like each other. He agreed that he discussed that situation with the grievor. He said he talked to both parties and concluded that it was a personality conflict. Again, he denied that the grievor ever gave him any specifics of her interactions with Ms. McMillan, that Ms. McMillan was generally physically aggressive to her or verbally aggressive. He said he had those discussions with the grievor in late 2005. He recalled discussing this situation with Human Resources, because he wanted Human Resources to be aware of it. He did not remember to whom he spoke. No emails or other documentation of these discussions were produced.

38Mr. Cooper recalled the email chain referred to by the grievor, dated January 5, 2006, in which his ultimate reply was that he would keep a record of the two incidents set out. Those incidents related to the assault on the grievor by Nina McMillan and the confrontation on the Bay Street bus between the grievor and Nina McMillan. He said that he spoke to the grievor about the incident and spoke to Ms. McMillan, who denied any attack. He also testified that he followed up with his Human Resources representative. He said the grievor did not give him any specifics of the attack despite his request for specifics. Other than Mr. Cooper's email response of January 5, 2006 there was no documentation of this incident put before me. There was nothing to or from Human Resources. Mr. Cooper testified that his response included physically separating Ms. McMillan's workstation and that of the grievor. He then changed his evidence to say that he could not recall whether the separation of the workstations occurred before or after this email. He said that he separated them because he knew there were some issues and this email brought it to a head. There is no evidence from Mr. Cooper that he did anything like follow the protocol that he so carefully laid out in his earlier evidence. Mr. Cooper was also unsure whether the grievor left the workplace at this time or whether she returned to work at all after this email. He testified that, "at some point she talked about going to the doctor." Mr. Cooper denied telling the grievor to get a doctor’s note that would keep her out of the workplace until Nina McMillan's secondment ended.

39Mr. Cooper's testimony regarding the incident between the grievor and Ms. McMillan on the Bay Street bus was that he spoke to the grievor, probably the same day, and told her that as it was an off site incident she should contact the police and file a report if she felt threatened. He knew that Ms. McMillan had returned to her home position, which he believed to be with the Ministry of Energy at or near 900 Bay Street. He could not recall ever speaking with an OPP Officer. He said that the alleged incident went back seven or eight years. He had no recollection of whether or not he had any records of speaking with the OPP about the grievor.

40Mr. Cooper denied ever being told by the grievor that Francine had made a reference to Alberta importing "slaves". He testified that had he been told of such a situation he would've invoked his protocol described above. He said that, as for the allegation that Francine had referred to the scavenger hunt prize as a "trip to Trinidad", he spoke to Francine and satisfied himself that the reference was to the prizes being modest rather than it being a racist comment. He conveyed that conclusion to the grievor but did not say that part of his reasoning was that Francine had Guyanese friends, because that would have nothing to do with whether or not the comment was racist and would be a very patronizing thing to say. He did document this incident and his response in an email to Human Resources dated June 30, 2006. He did not meet with both Francine and the grievor together because he did not think it would be fruitful given how upset the grievor was. He did tell the grievor to take the rest the day off and provided a taxi chit to ensure that she got home safely.

41Mr. Cooper said that the grievor's secondment to the Director's Office was suggested by the Director following a discussion he had with the Director in late June. He said that his recollection was that the grievor was very positive about the opportunity. He emphatically denied that she was given only one day to think about it and he did not pressure her at all to take the opportunity. He also testified that it was her right to return to her old position at any time and there was nothing remarkable, to his recollection, in her return. Nor, was there anything out of the ordinary in him approving the absences requested by the grievor on October 25, 26 and 27 because the Workplace Information Network (WIN System) would have to be updated to reflect the absences, likely in November. He would then be her supervisor, as she would've returned to her home position, and it would fall to him to post the absences in the system.

42Following the grievor's return to her home position Mr. Cooper began to document the grievor's situation with Human Resources (HR). One email to Jayne Wright is undated. Another, dated November 15, 2006 suggests that Mr. Cooper would like to meet with Ms. Wright and suggested that she touch base with Maureen Lee-Grant or Marcia Smith at the Equal Opportunity Program "as they have also received calls from Avril." Ms. Wright's reply email, the same day, proposed a meeting date and advised Mr. Cooper that, "Maureen did give me a call to give me a heads up but I don't really know what all this is about, so hopefully, we will see you next week." When asked whether or not he met with Ms. Wright, Mr. Cooper testified that they "likely did". He said that he "would imagine we probably did meet on that date." No notes or documentation were produced of any such meeting. Mr. Cooper communicated further with Ms. Wright on November 16, 2006 advising that he had met with the grievor who was upset and crying. The grievor had advised him that she was seeing a counselor and a doctor, who had diagnosed her with depression and had prescribed medication. The email also included the following:

Avril said she is a ’target’ of bullying in the office but wouldn't say anything more specific about it. I told her that she needs to document this in writing, anything that happens, and pass along to me. I also mentioned that I would be meeting with HR next week. I emphasize that we need to work together to take action and find a resolution to this issue, that we (me as her manager, and HR) are here to provide support to her.

43Mr. Cooper also advised Ms. Wright that because the grievor was upset he told her to go home and not to return to work if she was still feeling badly the next day.

44Mr. Cooper testified that the grievor did not give him any details with respect to having been bullied, although he said that he did ask for specifics. He said that he was not told by the grievor that she had been told upon her return from the secondment by a coworker that they did not want her there. He testified that had she done so he would have followed the protocol he described above. Mr. Cooper did testify that he believed that a meeting had taken place in late 2006 between him, the grievor and Jayne Wright. He recalled the discussion as being a general consideration of the grievor's concerns about how she felt in the workplace. The grievor was told that if there were any health issues they should be identified and documented by her physician. No documentation of this meeting was produced. Mr. Cooper said that following the grievor's return from her secondment she made no specific allegations against coworkers. Mr. Cooper said that he spoke with Maureen Lee-Grant and Marcia Smith who were there to provide support to the grievor, but he did not recall any specifics of his discussions with them and did not produce any documents or documentation relating to his discussions. He was not particularly aware of any discussions the grievor had had with them.

45Mr. Cooper said that from the beginning of 2007 until August 2007 there were no issues raised by anyone about the grievor, nor did the grievor raise any issues with him regarding her coworkers.

46Mr. Cooper said that while he was on vacation in August 2007 Andrew Tausz replaced him on an acting basis. Upon his return from vacation Mr. Tausz told Mr. Cooper that Liz Winiok had come down from reception and was talking to the grievor at her workstation. The grievor became upset and was loud enough for him and others to hear, so he came over to resolve the situation. He told Mr. Cooper that the matter was resolved by the two employees going their separate ways. Mr. Cooper then spoke with the grievor in order to understand her side of the story. He testified that he did not recall receiving a lot of detail, just that Liz was intimidating the grievor. The grievor was upset and continued to be upset. Mr. Cooper raised with the grievor his concerns for her emotional health. Mr. Cooper did not have any recollection of telling the grievor that they had zero tolerance for swearing in the workplace. He did document his meeting with the grievor by sending an email to the new HR Consultant, Heather Lynch, dated September 5, 2007. In that email he again noted that the grievor had told him that she feels that she is a "target". Later that day, the grievor pointed out to Mr. Cooper the definition of "harassment" set out in the collective agreement. He documented that by sending another email to Ms. Lynch. The next day he sent a further email to Ms. Lynch noting that he had received a phone call from the grievor during which "She was crying on the phone, yelling at times, and essentially reiterated the same information that I relayed earlier." He also reported that he had told the grievor that he, the grievor and Ms. Lynch should meet the following week. Mr. Cooper testified that he could not recall whether or not a discussion took place with HR. He was also not absolutely sure whether or not the grievor had returned to work after the date of this email. It was common ground that the grievor did not return to work after September 6, 2007

47On February 21, 2008 Mr. Cooper wrote an email to Michelle Rose, the new HR Consultant documenting that the grievor had telephoned him "screaming and crying and complaining about our receptionist, Ian McKay." Seemingly, she had been trying to reach a staff member and was upset when Mr. McKay did not connect her directly but rather gave her the number for that staff member’s direct line. Mr. Cooper advised EAP of the situation in order to do his "due diligence".

48In cross-examination Mr. Cooper said that the grievor was given an opportunity to do other tasks such as the monthly reports. He knew that because he had asked other staff members whether or not she had been given such an opportunity. He agreed that it was possible that Ms. McMillan and Ms. Salvador had been involved with training the grievor. He agreed that he was aware of interpersonal problems between the grievor and Ms. McMillan and worked to resolve the problems by physically separating their workstations. Again, he was unsure whether or not the physical separation had taken place before or after the alleged assault. With respect to the alleged assault he said he would have advised HR. He said that he did talk to Ms. McMillan who absolutely denied the assault. He agreed that there was no more full investigation besides him speaking to Ms. McMillan. There is no documentation confirming that HR was advised or involved.

49Mr. Cooper was also asked about four books that he had authored dealing with African Canadian History. He said that he agreed that he had a strong knowledge of racism, both systemic and overt. He agreed that the comments made regarding the prizes in the scavenger hunt being a trip to Trinidad could be interpreted as a racist comment. However, he said that Francine was very upset to know the comment had been interpreted as a racist comment and was adamant that it was a joke, and she had no intention of causing the grievor any harm.

50Mr. Cooper also testified that the grievor's email of January 5, 2006 in which she forwarded her previous email of December 15, 2005, dealing with the alleged assault and her report of the incident on the Bay Street bus was the only record that he kept of those incidents. He also testified that he would have provided a copy of that to HR. However, he agreed that there was no documentation in the record of any email to any HR consultant forwarding that information. He also agreed that the use by the grievor of the phrase "As a visible minority, I have to work twice as hard to achieve things in life and I'm very traumatized." could have indicated that the grievor took the situation as a racist incident. He said that could have been her interpretation and from his own research and writings the phrase, “work twice as hard” is a comment that is made often by members of the African-Canadian community. He said that he understood the grievor's feelings but there was no corroboration or witnesses and Ms. McMillan denied that it had happened.

51Mr. Cooper had no explanation for why one of his emails to Jayne Wright was undated, and he had no knowledge of when the email might actually have been sent.

52He was also shown a copy of a Business Performance Plan for the grievor, which was sent to her September 17, 2007. In his evidence in chief he had not had any recollection of sending the grievor such a plan and thought that it was unlikely he would do so if she were off sick. His explanation for sending the plan was that at that point the grievor was expected to return to work on September 20, 2007. It was sent to her MTO email address in anticipation of her return to work.

53In his redirect examination he agreed that no response other than moving the desks was undertaken. It seemed to him to provide a solution to the issue of two people who did not get along well together. He said that they would not be close enough to snipe back and forth. He didn't like to use the word bickering. It would permit the work to get done in the office and find some kind of reasonable resolution to the situation. He also said that the lack of any email to HR forwarding his record of the two incidents brought to his attention by the grievor may just been an oversight in producing documentation. He added that it had been discussed with his director and there was a follow-up letter that the grievor sent to his Director in January.

54Andrew Tausz also testified. He was the acting manager when the grievor and Liz Winiok had their altercation. He said that he dealt with the member of the public who gained access to the office. He was able to engage him in conversation and escort him out. He said that he informed the OPP that it was not necessary for them to intervene because the person was going to leave the building. He said the grievor was not involved at that time. Later, the receptionist came to talk to him and became engaged in a loud conversation with the grievor. He heard the conversation from his office and went to investigate. He told the grievor that it was not part of her job to instruct the receptionist on how to perform her duties. He said that it was not a pleasant situation. The grievor was agitated, while the receptionist did not say very much. He later discussed the situation with the receptionist who was upset at the way she had been spoken to. He also said, contrary to the grievor's evidence, that he had a brief discussion with the grievor telling her it was not her matter with which to be involved. He said he also spoke to the staff to reassure them that everything was under control and he briefed Mr. Cooper upon his return from vacation.

55In cross examination he agreed that he did not know who had let the person into the office, but he would not be surprised if it had been the grievor. He said that he was not aware that the member of the public had been loud and agitated. He was also asked whether he recalled an incident in which the grievor had told him that Ms. McMillan had touched her on her forehead. He said he did not recall that and that he would not have told the grievor “not to worry because Nina does that to everyone.” He said he would not say something like that. He elaborated in his redirect examination that it is not acceptable behavior. Had such a thing happened, Mr. Cooper would have dealt with it.

56Kimberly Bates also testified. She was the Director of Communications for the MTO. She has held a number of senior positions in the Ontario Public Service. She said that the grievor occasionally stood in for the third floor receptionist. She recalled an incident when the grievor told her, in the corridor, that she had been called a "bitch" on the bus. She had gone to the OPP, which declined to get involved because it was not their jurisdiction. Ms. Bates asked the grievor if she was afraid. The grievor told her she was fine. Ms. Bates did ask Mr. Cooper to walk her out that evening, which he did. She said she had no further discussions with the grievor about this incident. She also testified that the grievor told her that she did not know the person, she did not identify the person as a coworker nor did she say that she had had previous interactions with the person. She said the grievor gave her no documents at that time.

57Ms. Bates was asked if she recognized the letter dated January 12, 2006 addressed to her from the grievor. She said it was brought to her attention by Mr. Cooper as part of the grievance package. She said the grievor never gave her this letter. She said that because of her commitment to a harassment free workplace, any time she receives information about harassment she would act on it immediately. She also testified that all correspondence goes to her executive assistant and to HR. She also testified that she would have met with Mr. Cooper right away in order to discuss such allegations. She said a thorough search of both electronic and paper files in her office did not turn up a copy of this letter.

58She said the grievor was offered the secondment in her office because Mr. Cooper had told her that the grievor wanted wider exposure. She said that it is a key position in her office. She described the duties of the position. She said the grievor was trained for a week by the person leaving the position and that the previous incumbent had prepared a binder setting out the details of the position. She said that the grievor was not responsible for maintaining the event calendar; that was a duty of the coordinator. She confirmed that the grievor had applied for the position when it was posted come but she was not successful.

59She did not learn that the allegations involve a coworker until it was brought up as part of her grievance. She testified that she had had one other discussion with Mr. Cooper approximately one week after the grievor told her about the incident. She called Mr. Cooper and asked him how things were going for the grievor. He confirmed that he had walked her out on the evening in question and that everything seemed fine. She said that it was several months after the grievor told her about the incident that Mr. Cooper told her that it had involved a coworker. She said that that when she learned it was a fellow employee she told Mr. Cooper to call HR in order to ensure that the situation was being handled in a fair and balanced manner.

60She agreed with Mr. Cooper's analysis that the reason he approved the grievor's absences in late October was because it would fall to him to reconcile the WIN system in November, by which time the grievor would have returned to her home position. As for staff absences in general, she testified that she simply wanted to be kept informed of when people would be absent for doctors’ appointments and the like. She had no recollection of ever denying the grievor permission to go to the doctor.

61Ms. Bates was asked if she was aware of the incident that took place on August 27, 2007. Her answer was that she had learned about it on the morning she testified before me.

62Ms. Bates was briefly cross-examined. She said that she knew of the grievor’s desire to progress from Mr. Cooper, not directly from the grievor. She also said that she was not sure whether the secondment position was an OAG 9 or OAG 10.

The Submissions of the Parties

63The Union submitted that the Employer breached articles 2, 3 and 9 of the collective agreement in failing to provide the grievor with a safe and healthy working environment free from discrimination. The grievor made several complaints to her Manager, to her Director and to Maureen Lee-Grant of the WDHP. It said that the collective agreement requires that reasonable steps be taken to ensure a safe and healthy work environment, which the Employer failed to take. It urged that the evidence of the grievor be preferred to that of the Employer witnesses in that her evidence was clear and cogent while that of the Employer was vague. It said that the Employer’s witnesses substituted what they thought they would do for what they did do. It is not that they were dishonest or misleading in giving their evidence; they simply had faded memories.

64The Union said that Mr. Cooper's response to the alleged assault was wholly inadequate. Despite his evidence that he would approach problems by sitting down with the workers, documenting the problem and seeking advice from HR, he did no such things in the case of the assault. There is no evidence that he called HR. There was no real investigation. He simply accepted Ms. McMillan's bare denial without any further investigation, which is unacceptable and a failure to provide a healthy and safe work environment free from discrimination. The Union noted that Mr. Cooper testified that he followed up with the Director and responded to the grievor's letter to the Director. Ms. Bates did not recall receiving that letter; however, that is the only letter in evidence. Again, Ms. Bates testified as to what she would have done had she received such a letter, which is indicative of a faded memory. The Union also pointed to the incident relating to the scavenger hunt as clearly indicating that the grievor considered it to be racially motivated and conveyed that to Mr. Cooper by email.

65With respect to the secondment, the Union urged that I accept the grievor's view that she was essentially coerced into taking the position. The Union submitted that Mr. Cooper testified that the grievor did not raise any issues of conflict after her return to her own position, yet Mr. Cooper's email of November 16, 2006 to Jayne Wright was his report that the grievor told him she was a target of bullying in the office. Once again, rather than properly investigate such an allegation, Mr. Cooper simply told the grievor to document any incidents and pass such documentation along to him. Again, no action was taken to deal with her concerns. The Union submitted that neither Jayne Wright nor Maureen Lee-Grant testified and submitted that an adverse inference should be drawn because of that failure to testify.

66The Union submitted that there were a series of events that were brought to the attention of management, and none of them were acted upon. By August 2007 the grievor was on prescription medications for depression, which the Union said was caused or contributed to by the Employer. In that latter regard it relied upon the evidence of Dr. Barsoum.

67The Union relied upon the following authorities: Clarendon Foundation and OPSEU (Mitchell Grievance) (2000), 2000 CanLII 50184 (ON LA), 91 L.A.C. (4th) 105 (Sarra); OPSEU (Ranger) and Ontario (Ministry of Community Safety and Correctional Services) (Ranger Grievance), [2010] O.G.S.B.A. No. 18 (Leighton); OPSEU v. Ontario (Ministry of Transportation) (Sager Grievance) (2004), 2004 CanLII 94669 (ON GSB), 134 L.A.C. (4th) 218 (Mikus);

68The Employer said there were three legal questions to be resolved. First, was there racial discrimination or a threat to health and safety? It said there was neither racial discrimination nor a threat to health and safety from other employee conduct. Second, even if there was such conduct, there was no failure on the part of management to respond because they were either not notified or took appropriate steps to investigate and deal with the conduct based on the allegations made. Accordingly, there can be no liability. Third, even if reasonable steps were not taken by management, the failure to investigate was not significant, which would lead to no or nominal damages. With respect to health and safety concerns specifically, there is no evidence that management's failure to act caused the damage. It said that this case is about a personality conflict between the grievor and other employees. It said that the Employer’s witnesses should be preferred because they were more clear and more detailed than the grievor. Finally, the Employer's responses show that it approached the grievor’s circumstances in good faith at all times.

69On the first point, the Employer submitted that it is not enough that the grievor have a subjective belief that her experiences were racially motivated. Objective evidence of discrimination on the basis of race is not present here. Also, although a single occurrence of racist behavior may be sufficient, generally speaking, a persistent and frequent course of conduct is required to establish such harassment.

70The Employer submitted that the threshold for establishing a breach of the duty to provide a safe and healthy work environment requires a significant degree of risk and a real and serious possibility of harm before the Employer is required to taken steps. It said that there is no evidence that meets that threshold. Accordingly, the evidence engages neither article 3 nor article 9.

71The Employer reviewed the incidents upon which the grievor relied. It said the incident with the scanner was simply an example of the grievor having done something incorrectly. In any event it was neither racially motivated nor a health and safety matter. Rather, it was an interpersonal conflict. Likewise, the hiding of the files as an initiation was probably about training, and, in any event, has no link to racial discrimination or health and safety concerns. With respect to the alleged assault, the grievor's report to Mr. Cooper was entirely devoid of detail. The bare allegation of assault has nothing to do with racial discrimination. The Employer said Mr. Cooper's conclusion that the report was part of a personality conflict was a reasonable conclusion and required no further action. With respect to the incident on the Bay Street bus, it was out of the Employer's control, being in a public space and not in the workplace. Regarding the overheard comments regarding not marrying a black man and the importation of slaves, the Employer said there was no evidence Mr. Cooper was told. It urged me to conclude on that basis that the comments were not made because the grievor did complain about other incidents. In any event, the Employer submitted that the "slaves" comment did not relate to a prohibited ground of discrimination. It was a language issue. Neither was it harassment based on race nor a risk to health and safety. The comments were not made to the grievor and did not target her. Again, with respect to the secondment, there was no evidence that it was discriminatory, harassment or a threat to health and safety. Likewise, the complaint of having been "bullied" is not detailed enough to permit a finding of harassment or Employer discrimination against the grievor. It urged that I accept Mr. Cooper's evidence that the grievor would not provide him with more detail. Essentially, a bald allegation of bullying is not enough to found a breach of article 3 or article 9. The Employer submitted the same situation existed with the altercation with the receptionist. It was simply another interpersonal conflict with a different individual; there is no evidence of a link to race. There was also no threat to health and safety because there was no real risk, as required by the jurisprudence.

72The Employer submitted that all of the article 3 claims should be dismissed. They are disjointed, involved different people and are not serious or significant enough to be such a pattern of harassment as would trigger article 3. The Employer also submitted that all of the article 9 claims should be dismissed. It said the Union had not demonstrated the degree of risk required in order to engage article 9. Bald allegations of bullying and assault are insufficient. The grievor's reports lack sufficient detail to have required the Employer to act.

73The second branch of the Employer's argument was that if the actions complained of by the grievor do amount to potential breaches of article 3 and article 9, the grievor's lack of specificity in complaining to management means that the responses taken by management were reasonable in the context. The Employer can only be expected to act if it has specific knowledge of what is being complained of. Mr. Cooper's responses were appropriate given the context provided by the grievor. Her complaints to Mr. Cooper were vague and she did not raise particular details with him. It submitted that had Mr. Cooper been given the detail required he would not have tolerated the behavior complained of. Specifically, with respect to the alleged assault, it said that the evidence established that Mr. Cooper followed up as far as he could but could go no further without detail. This was the case with all of the incidents summarized above.

74Regarding the alleged letter from the grievor to Ms. Bates, the Employer submitted that whether or not she received the letter, there is no more detail in the letter than was provided to Mr. Cooper on December 13, and with respect to the incident on the bus, nothing in the letter indicated that further action was required. It was the same information to a different manager.

75As to the remedy, the Employer submitted that damages are only appropriate if there has been a failure on the part of the Employer to take reasonable steps. Also, the failure to take reasonable steps has to be linked to the harm. Accordingly, the evidence of Dr. Barsoum is only relevant if there is a finding that there has been a failure on the part of the Employer to take reasonable steps. The grievor may well have experienced stress and depression because of what happened, but the Employer took reasonable steps so is not liable for the result. Further, Dr. Barsoum's evidence, and treatment, focused not on what the Employer did or did not do. Rather, he concentrated on her illness and concluded that it was the conflicts with coworkers that were responsible for the illness. He did not link her illness to any alleged inaction on the part of the Employer. Also, Dr. Barsoum was essentially an advocate in the process. Accordingly, little weight should be given to his evidence.

76Finally, the Employer submitted that even if causation is established, damages are not appropriate because the Employer's failures were minimal. It took steps in good faith, so only nominal damages at best could be awarded.

77The Employer relied upon the following authorities: OPSEU (Gauntlett) and Ontario (Ministry of Finance) (16 December 2009, GSB 2006-0659 et al, Gray); OPSEU (Waraich) and Ontario (Ministry of Labour) (9 January 2009, GSB 2003-0187, Watters); Jean-Luc Morin and Canadian Human Rights Tribunal and Attorney General of Canada [2005] CHRT 41 (Hadjis); OPSEU (Press) and Ontario (Ministry of Health and Long-Term Care) (9 October 2007, GSB 2003-1461, Mikus); OPSEU (Tardiel et al) and Ontario Ministry of Community Safety and Correctional Services) (16 December 2010,GSB 2005-1443 et al, Albertyn); Janet Coates and Communications, Energy & Paperworkers’ Union, Local 324, George Smith and Shelley Kiewing 2009 HRTO 1631 (Mark Hart); OPSEU (Gareh) and Ontario (Ministry of the Attorney General); (16 September2002, GSB 1665/98 et al, Brown).

78In reply, the Union submitted that the comments complained of by the grievor were clearly racial, therefore engaging article 3. Further, the grievor alleged that she was assaulted, which clearly engages article 9. Even if these interactions were just the result of a personality conflict, article 9 is still engaged. These are serious allegations, which warranted a proper investigation.

79Mr. Cooper's emails make it clear that he understood that she was emotionally vulnerable and responded to that vulnerability by sending her home rather than taking the required action in the workplace. The very allegation of assault brings the situation squarely within article 9 and the racial comments, even if they were not targeted at her, poisoned the work environment. A member of a group protected by prohibited grounds of discrimination, hearing such comments, gets the message that the group is being disparaged, which causes harm.

80With respect to Dr. Barsoum being an advocate in the process, the Union said that he satisfied himself about the origins of the grievor's illness and remained objective. There is no indication that he was being manipulated by the grievor.

81With respect to causation, the Union said that the Employer is responsible for providing a safe and healthy work environment free from discrimination and harassment. It is the reasonableness of the Employer's actions that falls to be determined by the Board. Dr. Barsoum was of the opinion that the workplace made the grievor ill. It is inappropriate to differentiate between the actions of the coworkers and the reasonableness of the steps taken by the Employer as to which caused the harm.

Reasons For Decision

82This grievance raises serious allegations. The resolution of the grievance is complicated by the passage of time, the relevant events having occurred between September 2005 and August 2007. The grievor started working with the Ministry of Transportation in September 2005. She says that harassment at the hands of her coworkers began with her training and included racially motivated comments. On December 15, 2005 the grievor advised her Manager that she had been assaulted by one of her coworkers. In essence, the Manager did nothing. The Manager made no investigation of the allegation of assault other than to accept the coworker's denial. There was no documentation of his purported discussion with the coworker. There was no documentation that Human Resources had been advised and included in the discussions. The traumatic effect of the assault, and the fact of the assault, were reinforced by medical notes obtained by the grievor and provided to the Employer. The Nurse Practitioner’s note of December 17, 2005 and the physician’s note of December 21, 2005 both reinforce the nature of the grievor's report. Mr. Cooper denies telling the grievor to obtain the medical notes in order to permit her to stay off work until the offending coworker, Ms. McMillan, returned to her home position from her secondment in Mr. Cooper’s office. The grievor's evidence was to the contrary. She said that Mr. Cooper told her to obtain a note for that purpose. Generally speaking, Mr. Cooper's recollections were vague and were generally unsupported by any documentation. He often testified about what he would have done under given circumstances, rather than what he did do. I find that it is more likely than not that the grievor's recollection as to the motivation for seeing the physician is the correct one. As will be seen below, Mr. Cooper's general approach was to deflect and deny the existence of any problem. I do not believe that his motivations were malicious; he simply appears to have been unwilling or unable to confront such conflict.

83On January 5, 2006 the grievor provided a written report of the incident on the Bay Street bus in which Ms. McMillan called the grievor a “bitch”. Mr. Cooper knew that it involved the same coworker against whom the grievor had leveled the allegation of assault and whose bare denial he had accepted. Yet, he took the position that this was not a workplace incident because it happened on the bus. He took no action other than to reply by email to the grievor that he would keep "a record of this as well." That is, it would appear from his reply that he believed that both the allegation of assault and the incident on the Bay Street bus were properly dealt with by merely keeping a record of the event. He testified that the grievor sent a letter to Ms. Bates outlining her concerns. That would be the letter of January 12, 2006. Mr. Cooper also testified that he discussed the situation with Ms. Bates. However, there is no documentation of any such discussion or course of action agreed between the two of them. There is no record of the involvement of Human Resources. That letter specifically raises the grievor’s concern that the two incidents were harassment of her as a visible minority.

84Underlying the assault were racially motivated comments by the grievor's coworkers. It appears that a later comment was documented by the grievor in an email dated June 29, 2006. That would be the scavenger hunt comments. Again, in that case, Mr. Cooper accepted a bare denial without any serious investigation. He says he accepted the explanation that it was an innocent remark. Again, there is no documentation of that meeting with the coworker, Francine, nor is there any documentation that Human Resources was informed.

85In my view, had Mr. Cooper thoroughly investigated the assault allegation and the incident on the Bay Street bus, the racially motivated aspects of what was going on would have become evident. A proper investigation would have required the grievor to particularize her concerns and there would be documentation of Mr. Cooper's discussions not only with Ms. McMillan but also with the grievor. False allegations of assault would also be a very serious matter. It was not open to Mr. Cooper to let the matter drop. At some point, Mr. Cooper separated the desks of Ms. McMillan and the grievor. Whenever it occurred, it was an inadequate response to serious situation.

86The letter to Ms. Bates is an important document. Ms. Bates denies receiving the letter. The letter is dated January 12, 2006. The grievor's evidence is that she handed it to Ms. Bates. Ms. Bates's evidence is that she only became aware of the letter as part of the grievance process. The grievance appears to be dated February 13, 2008. It is difficult to conclude, on balance, whether or not the grievor gave the letter to Ms. Bates at that time. The evidence of the grievor is that she met with Ms. Bates that day. She supported that with printed extracts of her electronic calendar. It is likely that they met and that Ms. Bates received the letter without turning her mind to it. In any event, on the evidence, it is apparent that the letter was made known to the Employer generally.

87The evidence supporting my finding that the Employer received the letter is compelling. Mr. Cooper, in his redirect examination, said that the grievor had sent such a letter and the situation was discussed with Ms. Bates at the time. It is also evident from the record before me that the grievor met with Maureen Lee-Grant after having attended a sensitivity training session. That meeting took place in November 2006. I accept the grievor's evidence that she explained to Ms. Lee-Grant what she had been through and forwarded documentation to Ms. Lee-Grant by email dated November 14, 2006. That documentation included the letter to Ms. Bates. Ms. Lee-Grant told the grievor on two occasions that she would be in touch with her. I accept the grievor’s account that she never heard back from Ms. Lee-Grant. There is no evidence that anything came of the grievor’s complaints. Ms. Lee-Grant was not called as a witness to testify, and I draw a negative inference from her failure to testify. The letter was also referred to by the grievor in her letter of March 2008 to the Secretary of Cabinet, which also directly refers to the racial aspect of the incidents.

88Although the letter to Ms. Bates clearly reflects the grievor’s concerns it seems to never have been acted upon. Mr. Cooper knew of the letter. Ms. Lee-Grant knew of the letter. The Director of the Human Resources Branch responded to the March 2008 letter from the grievor on behalf of the Secretary of Cabinet. His reply, dated May 7, 2008 says that a review was conducted “based on the information provided”. Part of the information provided was reference to the letter to Ms. Bates. There was no evidence led of the HR Director’s purported review. There is no basis upon which to believe it was any less pro forma than previous management efforts. Again, there was no documentation of this review. Any proper investigation or review should have included questioning of Ms. Bates about the letter. I do not know if or when that happened or whether it was before or after the filing of the grievance. In any event, his inquiries were not part of the grievance process. It was Ms. Bates’s evidence that she first saw the letter as part of the grievance process, and it was Mr. Cooper who alerted her to it.

89By November 2006 Human Resources was aware that there were issues involving the grievor that required their attention. On November 16, 2006 Jayne Wright was advised by Mr. Cooper to contact Maureen Lee-Grant or Marsha Smith at the Equal Opportunity Program. His message to Ms. Wright was that he, "would really like to talk to you about this situation, either the two of us talking and perhaps with Avril as well at some point, so we can take positive action in addressing her workplace concerns." It is evident from Ms. Wright's reply that this is the first that she had heard about these concerns. Her reply includes the observation, "also, just to keep you up to date, Maureen did give me a call to give me a heads up but I don't really know what all this is about…" There is no indication that anything came of this. There is also no indication whether or not Ms. Wright was told by Ms. Lee-Grant about the letter to Ms. Bates.

90Particularly with regard to the allegation of assault, one would have expected that Mr. Cooper's purported protocol would have been followed. That is, meet with the employees involved, involve Human Resources, document the concerns, take steps to ensure that such incidents would not occur again and discipline where appropriate. There is simply no explanation in the evidence of the Employer as to why Mr. Cooper and a Human Resources representative did not meet with Ms. McMillan and the grievor and document the matter. Had he followed his protocol and given the grievor space to explain her plight, he would have heard of all of the allegations, including the fact that they were racially motivated. Instead he closed his eyes and ears.

91Mr. Cooper seems to have been willfully blind to the serious problems in his office. His management style seemed to be a lack of actual management.

92In my view, it is more likely than not that there was racial discrimination directed against the grievor by her coworkers. The grievor's evidence was not limited to a subjective belief that the motivations of her coworkers were racial in nature. She heard racist comments uttered in her presence that, I find, were in fact directed at her. There is no reason to disbelieve the grievor's accounts of these comments. Neither of the coworkers who were involved were called to give evidence to the contrary. I draw a negative inference from the failure call them. There is also direct evidence from the grievor that she was assaulted. I accept that evidence. The behaviors directed against the grievor seemed to be escalating. Accordingly, the grievor faced, and was subjected to, a significant degree of risk and a real and serious possibility of harm from her coworker.

93The employer was duty bound to thoroughly investigate the allegation of assault and the allegations that her treatment by her coworkers was racially motivated. As set out above, there was simply no serious investigation of those allegations notwithstanding the duty of the employer investigate such allegations. The Employer submitted that the grievor's lack of specificity in complaining to management meant that the responses taken by management were reasonable in the context. That is, it had exercised its due diligence. In Ranger (supra) Vice Chair Leighton quoted with approval, at paragraph 80, the following excerpt from Chan, (1990/90):

There is no strict liability on the employer, in that merely because an employee racially harassed or put another employee at a health or safety risk, the employer is thereby exposed to liability. The employer's liability depends on its knowledge of the offensive conduct and its response to it. However, in considering the employer's knowledge the test is not purely subjective. If the employer lacked knowledge because it showed a lack of interest or did not have a reasonable system for detecting and monitoring of offensive conduct, this does not exonerate it. To hold otherwise would be to make the obligation imposed on the employer by the collective agreement provisions meaningless. The employer would be able to circumvent that obligation by merely closing its eyes and ears. The parties could not have intended that.

94For the reasons set out above, I find that the employer did not take reasonable steps to deal with the complaints advanced by the grievor. The employer did not show nearly the degree of diligence it ought to have in investigating the grievor's complaints. The Employer is liable for those failures.

95I accept the medical evidence of Dr. Barsoum that the harm to the grievor was as a result of the incidents in the workplace, which I have found to have occured. The harm was substantial. In my view, it meets the test set out in Rideau Regional Center and Ministry of Community and Social Services [GSB#2268/95] cited in Sager (supra) with respect to the health and safety claims.

96The matter of damages is remitted to the parties. If they are unable to resolve that issue the matter may be brought back on before me.

The Decision

97I have carefully considered all of the evidence and the submissions of the parties, including the jurisprudence relied upon. The grievance is allowed.