GSB#2008-3971

UNION#2009-0517-0018

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Groves)

Union

• and -

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

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Katherine Ferreira Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

HEARING

February 27, March 4 and 5, November 22, December 17, 2013; January 14, 15 and 29, February 12, 18 and 19, March 6 and 27, June 4 and 11, 2014

Decision

1The grievor, Michael Groves, has been a Correctional Officer 2 (CO2) at the Toronto West Detention Centre since 1999. On February 8, 2009 he filed the following grievance:

I grieve that management violated but not limited to the collective agreement Art. 2- Management Rights, Art. 3 – Harassment/ Discrimination, Art. 9 – Health and Safety and Employer’s WDHP policy.

I submitted a WDHP complaint on November 14, 2008 with Mr. Greer. The Employer failed to acknowledge and address my WDHP complaint therefore condoning a poison work environment thus creating an unhealthy work environment.

He asked for full disclosure and full redress including but not limited to $18,000 for damages.

BACKGROUND

2In 1979, when the grievor was 7 ½ years old, he was referred to the Psychology Department of the Peel Board of Education because he was having difficulty with reading skills, especially maintaining a sight vocabulary. He scored above average in overall functioning but was found to be weak in visual directionality and sequencing, spatial orientation, factual recall of general information. It was recommended that he be placed in a Special Learning Disabilities class and a list of materials and lessons that could assist him was included.

3In 1998 a letter from the Gordon Graydon Memorial Secondary School verified that the grievor had been identified “exceptional communications” by the Peel Board of Education in 1983 and had attended at the school between September 1986 and June 1992 during which time he had received support for his learning disability.

4The grievor testified that when he had applied for a position as a CO, he advised the Employer about his disability before the interview and asked for additional time to complete the tests. At that time he also provided copies of the documents from the elementary and high schools confirming and describing his disability. He never discussed his disability with the Employer again. He said he might have talked about it with one or more co-workers but only during idle conversation, not in any detail. For example, a colleague’s daughter had been diagnosed with a learning disability and was very upset. The grievor told him about his experiences in an effort to help her understand what to expect in the future. He never asked for accommodation because he felt people did not appreciate special treatment for some employees. Also, he had been ridiculed as a student and did not want to talk about it with anyone and risk going through that again.

5On November 14, 2008, an incident occurred during his shift at the East Wing Lobby Desk that set into motion a series of events that resulted in the grievance set out above as well as a complaint under the Ontario Human Rights Code.

6The grievor had been assigned to East Wing Lobby desk on the day shift, from 0700 hours to 1500 hours. The desk is intended to control the entrance to the hallway and keep track of prisoners, deal with internal and external phone calls concerning prisoners and visitors. The Desk Officer receives the day’s orders regarding escorts, visitors, and chaplain and chapel schedules from the Sargent on duty. Colin Campbell, OM16, had left specific instructions for the grievor that three general duty officers would be reporting to him at 1300 hours and set out what jobs he should assign to them. At approximately 1425 hours one of them, CO Levy, entered the East Wing Lobby area and the grievor asked where she was scheduled to be working. He assumed that she had been reassigned because she was 1 ½ hours late. When she responded “here”, he asked her where she had been because she should have reported for duty at 1300 hours. She became agitated and replied she had been on a break and that the grievor was not a “white shirt” and he could not ask her about her attendance. What happened next was reported on the Occurrence Report the grievor completed the next day:

…I informed CO Levy that the OM16 informs the Lobby Officer of all available General Duty Officers assigned to the area and that she had not reported to her assigned post on time. CO Levy began yelling, calling me a retard and an idiot repeatedly for several minutes. She then sat down and stated that she was going to grieve me. At one point I stood up to walk away and she stood up in front of me and said, ‘I am not afraid of you’. I stated I am not trying to intimidate you. I then went back to the lobby desk to sit down and she raised her left hand at me pointing her index and middle finger at me with her thumb sticking straight up and her ring and baby finger folded underneath her hand so that her hand resembled a gun and stated ‘I don’t have to take orders from you.’ I stated I did not appreciate the way she was talking to me and that it is very disrespectful at which time she stated, ’I don’t respect you or anybody else in here and you need to not take your job seriously, I stated that I work in a maximum security institution and I do take my job seriously.

7He testified he was flustered and did not know how to handle what had happened. All he wanted to do that day was get out of the detention centre so he left without speaking to anyone. The next day he met with the dayshift supervisor and told her that he and CO Levy had an altercation in the Lobby and that words had been exchanged that he felt violated his rights. Levy’s conduct constituted, in his view, harassment, discrimination and violence in the workplace. He told her he intended to file an Occurrence Report. A few days later he filed a complaint under the Workplace Discrimination and Harassment Policy.

8He had been referred to Mr. Paul Greer, the Superintendent, who completed an Employer/Other Information Report which stated that an employee had reported another female employee had used verbally abusive language and a threatening hand gesture on November 14, 2008. He stated they were currently collecting occurrence reports from all staff involved and that he had asked the 23rd Division’s Constable Nicholson to investigate whether the hand gesture could be seen as violence in the workplace. The report also noted that Mr. Greer would be away for a few days and that Mr. Roth would be the contact person.

9The grievor met with Mr. Greer during the week of November 17th to give him the WDHP complaint and occurrence report. He had the assistance of his Union Steward. The grievor did not think Mr. Greer showed much interest in his complaint. When he told the grievor that the gun gesture was not a violation of the WDHP the grievor reminded him that gun gestures are most often seen as inmate versus inmate threats. It was only after he and the Union Steward showed him the definition on discrimination and harassment in the WDHP policy that he agreed to investigate. The grievor requested that Deputy Superintendent Gray from the Toronto West Detention Centre be assigned to the investigation but was advised that Deputy Superintendent from the Toronto West Detention Centre, Tony Roth, would be assigned to set up a Fact Finding investigation.

10The grievor passed Mr. Roth in the hall on November 19th, 2008 and asked him for an update on his complaint. Mr. Roth told him that the police had been called and, based on the occurrence reports, did not think charges were warranted. Mr. Roth then asked him what he wanted. The grievor did not understand what he was being asked. He told Mr. Roth that he had been forced to deal with discrimination, harassments and verbal assaults all his life and had thought that, after ten years of exemplary work, he had passed that part of his life. He asked Mr. Roth to continue to investigate his poisoned work environment and violence in the workplace complaints. He told him that when he walked down the corridors, people would yell out “retard” and “idiot”. They never showed their faces. The grievor left the meeting with no clear understanding of what was going to happen next.

11He was asked why he had filed anther occurrence report and he stated that he was still bothered by the lack of information and he wanted to make sure people were taking his complaints seriously. He was still being called a retard as he walked down the corridors. That had happened once before in 2006 but was now happening often. When he told Mr. Roth that he could not identify who was making the comments he was told that unless he could, Mr. Roth could do nothing to help him.

12On November 21st he met with Mr. Mackenzie-Haines, Security Manager, in a preliminary interview about the complaints. He asked the grievor about the hand gesture, the conversation between him and Ms. Levy, how he knew she was supposed to report for duty and when and whether there had been any witnesses. The grievor could not recall whether Mr. Mackenzie-Haines asked him about his disability or being called a retard but did remember telling him about it. That interview lasted about half an hour. There was another interview some time later, perhaps in June, during which the grievor was shown the video of November 14th, 2008.

13By memo to all staff dated November 27, 2008, entitled Policy Reminder – WDHP, Mr. Greer wrote the following:

This is a reminder to all staff of the Toronto West Detention Centre that both Management and Local 517 remain committed to provide and maintain a work environment that is free from discrimination and harassment.

Under the Ontario Human Rights Code all employees have the right to work in an atmosphere free from discrimination or harassment. The Workplace Discrimination and Harassment Prevention [WDHP] reinforce that right.

All employees are required to adhere to these policies at all times. It is required of Public Service employees that they treat everyone fairly and with dignity. Persons engaging in behavior that violates the WDHP Policy can anticipate significant consequences.

If you have questions or wish to have additional information regarding the WDHP Policy please visit the corporate policy home page…

14On November 28, 2008, Mr. Roth sent an e-mail to Maxine Black, Administrative Assistant to Mr. Greer, advising her that Mr. Groves and Ms. Levy were to be scheduled on different units during their shifts.

15On December 29, 2008, the grievor filed another incident report with Mr. Greer concerning a work assignment that he felt would put him in direct contact with Ms. Levy, contrary to Mr. Roth’s earlier memo. He informed the OM16, Mr. Godin, that while they were not working on the same unit, they would be sharing the lunch room and, since he was direct code response, he could be required to work with her. When he reminded Mr. Godin about Mr. Roth’s directive he was told that Mr. Greer had informed him that he could work anywhere except on the same unit. The grievor had been told by Mr. Greer that he was too busy to deal with the complaint and he had assigned the investigation to Mr. Roth but it appeared to him that Mr. Greer was making work decisions without any concern about his well-being and safety while the investigation was continuing.

16It had been almost two months since the complaint had been filed and the grievor believed his work environment continued to be poisoned. On December 23, 2008, he found a Special Olympics poster on the bulletin board in the lunch room with his name printed at the top of it. He felt humiliated and embarrassed and took it down immediately. He also noted in his report that the two witnesses to the incident on November 14, 2008 had still not been contacted, a sign to the grievor that they did not intend to deal with the issues raised in his complaint. In his view this continued delay was a signal they were condoning the poisoned work environment. This latest incident, he testified, was based on the November 14, 2008 argument between he and Ms. Levy and he felt she was mocking him by making fun of him publically.

17He did not report this latest incident immediately because he felt that no one was taking an interest in his issues. He was intimidated and embarrassed and did not know what to do. He had been ushered out of Mr. Roth’s office on November 19th and later, when he and his representative had been called into Mr. Roth’s office, Mr. Roth informed the grievor that he was wrong to write a report of the incident. He was very agitated. The grievor was upset by the way Mr. Roth had handled things and felt the meeting had been called to intimidate him and discourage him from writing any more occurrence reports. When he did include a reference to the poster in his memo of December 29, 2008 the Employer did not ask about it or ask for a copy of it for the record.

18He did not have any further contact with Mr. Mackenzie-Haines and only had informal contact with Mr. Roth which he described as “disturbing”. For example, on five different occasions, Mr. Roth came into the change room while the grievor was in his underwear to give him updates about the investigation. The grievor thought that was very unprofessional.

19On March 3, 2009, Mr. Roth sent an e-mail to Mr. Greer advising him that he had had a conversation with the grievor on February 3, 2009, assuring him that the process was moving but it was slow because of labour issues, lock-downs, walk outs and job actions in the institution. He hoped it would be concluded by February 14, 2009.

20On April 9, 2009, a draft Administrative Fact Finding Review was forwarded to Mr. Greer from Mr. Mackenzie-Haines dealing with the verbal abusive language and threatening gesture. The Report began with a Synopsis of the parties involved, including the grievor, CO Levy, and Officers Robinson, Ongaro, Harrison and McArter.

21Under the Administrative Review it was noted that all Occurrence Reports were reviewed and staff were interviewed. All actions by the parties were documented. The grievor was interviewed but CO Levy was unavailable because of scheduling conflicts between her and Mr. Mackenzie-Haines. A detailed account of the video was included as well as the following:

CONCLUSION; The WDHP prohibited grounds that Officer Groves feels that he was discriminated against was his handicap as Officer Groves is dyslexic. He feels that the comment made by Officer Levy that he was a retard was directed to this prohibited ground. Unless Officer Levy knew of his dyslexia I don’t feel the comment was directed toward the handicap. The hand gestures that Officer Groves refers to cannot be identified by the video surveillance footage that was reviewed. Both individuals are guilty of not ensuring that a safe workplace is maintained due to their continual verbal abusive towards each other and their physical body movements and actions.

RECOMMENDATIONS; Both Correctional Officer Groves and Correctional Officer Levy failed to maintain a positive and respectful workplace, for themselves and other parties, subjected to this incident. Both parties would benefit from mediation to assist in reestablishment of a professional working relationship. If the parties disagree to the mediation - I would recommend that both parties are held accountable for their actions and comments, made during this incident.

22Ms. Cheryl Gaster, Consultant, Conflict Resolution and Human Rights Workplace Effectiveness Branch (WEB) with the Ministry of Community Safety and Correctional Services, had given Mr. Roth a series of questions for the fact finder to consider; essentially the who, when, what, where, why and what could be recommended to resolve the dispute. After she had read the draft report, she wrote to Mr. Roth confirming that it was incomplete because CO Levy had not been interviewed. She noted that the witnesses’ Occurrence Reports were considered but none of them had been interviewed and asked whether, where it was stated that the grievor had pushed CO Levy’s chair, she was in it at the time. She stated that she did not agree with the comment that unless CO Levy knew of the grievor’s dyslexia, her calling him a “retard” was not a violation of the WDHP. It is the impact of the comment, not the intention that is determinative. She recommended the fact finder ask Ms. Levy what she meant and why she used that term with the grievor. He should also ask the grievor whether his dyslexia was known amongst his peers and, if so, how it had become known.

23On May 16, 2009, CO Dunscombe filed an Occurrence Report to Mr. Anthony Valaitis concerning a conversation he had witnessed between CO Levy and CO Johnson. On his return to the module after his break, he heard them talking about an incident that had occurred between CO Levy and the grievor. He did not want to get involved so he sat by the back window to read a magazine. He overheard CO Levy call the grievor a racist several times, loud enough for the inmates to hear. He stated in his report that CO Levy had acted in an unprofessional and inappropriate manner. When he left the ward for his lunch break he went to the General Duties Officer to speak to OM16 Campbell and described what he had heard, who advised him to write a report of the incident.

24That same day, at 1524 hours, the grievor filed another Occurrence Report to Mr. Valaitis over that incident. He went directly to OM16 Campbell to tell him what he had heard and was told he would initiate an investigation about these comments. The grievor made reference to his WDHP complaint of November 14, 2008 and stated that management had still not completed its investigation and that it had failed to protect him from further harassment over his disability. He went on to say:

…My original WDHP has caused me to be ostracized by my peers continually harassed over my dyslexic learning disability. Now I have the added stress of having CO Levy state that I am a Racist and continuing to poison my work environment and defile my reputation of ten years to the point that I feel I could never possibly overcome. I now feel I am viewed by my peers as someone who is incapable of doing my job and now also as something as unspeakable as being a racist. I feel that management has once again empowered Ms. Levy to continue in her destructive and hurtful assault on my character. The original WDHP has caused so much stress on my personal life and career, physically and emotionally, that to rebuild my reputation that I have strived to acquire and maintain throughout my career I feel is impossible and futile. I believe my ability to gain promotions has been hampered by these slanderous unprovoked attack. [sic]

Management has failed to act on my poison work environment repeatedly. I feel I am being mocked and brushed aside every time I bring it to management’s attention. I am humiliated and embarrassed by this. I have a hard time coming to work but it is only through my professionalism that I try to hold my head high coming through these doors day after day.

25He ended his report by saying he was filing another WDHP complaint about CO Levy’s efforts to slander his reputation. At the bottom of the report was a notation written by OM16 Campbell acknowledging he had received and read it.

26The following day, May 16, 2009, another Occurrence Report was submitted by the grievor. He was assigned to Annex Control and around 1600 hours Ms. Levy walked through the link door, held up a piece of paper that looked like an Occurrence Report, waved it at the grievor, laughed and did a little dance. She proceeded to the door of Room 113 and showed the grievor the paper in her hand and did another dance before she entered the room. The grievor immediately called OM16 Campbell and asked whether CO Levy had submitted an Occurrence Report about her comments the day before and was told that she had dropped off a report but he could not tell him what it contained. The grievor saw this as another example of harassment and intimidation. He felt she was mocking him and stated as follows:

Mr. Roth has shown a total disregard for my work place safety and all he and this administration have done is empower this behaviour to can continue with impunity. [sic]

27The final report concerning the grievor’s WDHP complaint was issued on May 29, 2009. Its format was similar to the draft with some significant differences. It noted that CO Levy had been interviewed on May 26, 2009 and included some of the interview notes taken at that time. The report ended as follows:

CONCLUSION: The WDHP prohibited grounds that Officer Groves feels that he was discriminated against was his handicap as officer Groves is dyslexic. He feels that the comment made by Officer Levy that he was retarded was directed to this prohibited ground. Unless Officer Levy knew of his dyslexia I don’t feel the comment was directed towards the handicap. The hand gesture that Officer Groves refers to cannot be identified by the video footage that was reviewed. Both individuals are in violation of ensuring a safe workplace is maintained due to their continual verbal abusive [sic] towards each other and their physical body movements and actions.

28By letter dated June 9, 2009 Mr. Roth advised the grievor that Workplace Effectiveness Branch had determined that his allegations of a poisoned work environment and violence in the workplace had not been substantiated and therefore his file would be closed and no further action pursuant to the complaint would be taken. It went on to say:

However, the Fact Finding Report concluded that you conducted yourself in an unprofessional manner and it was recommended that you receive one-to-one coaching on professional conduct in the workplace. I will notify you of the date once this mandatory coaching has been scheduled. You will be required to attend this coaching as a duty assignment.

29On June 26, 2009 the grievor wrote an e-mail to Mr. Valiatis and Mr. Roth with copies to Liz Sandals, MPP, and Rick Bortolucci, MPP, in which he reviewed the course of his WDHP complaint. He stated that Mr. Greer appeared to have no interest in investigating the incident and had told him that even if there had been a hand gesture as he had described, it would not have been an act of violence. The grievor advised them that when he had asked to see the video of the incident, he was denied and that when the police had come to investigate, they were not allowed to view the tape or interview any witnesses. He advised them that he continues to be called a “retard and idiot” as he walks down the corridors but has been told to “get over it, because you have to work together”. He spoke about being called a racist in a place where inmates could hear what was being said. He stated that his complaint had been found to be unsubstantiated and that his file would be closed. Further, he was told he had acted in an unprofessional manner and he was ordered to attend a coaching session on conduct in the workplace. He concluded by stating he found this action punitive against his WDHP complaint and asking that an outside investigation be initiated. Mr. Valiatis responded by advising the grievor that after he had an opportunity to consult with the WEB, he would convene a meeting to discuss his e-mail.

30On July 16, 2009, Ms. Gaster prepared a chronology of events that set out some questions about the investigation. She noted that she had recommended previously that further information be sought from the grievor and the witnesses but it was unclear whether that had been done. She noted that Brenda James had met with CO Levy, who had expressed remorse about her role in the altercation with the grievor. She queried whether that remorse had ever been transmitted to the grievor, whether Ms. James had met with the grievor, whether anyone had tried to convince the grievor and CO Levy to meet, whether the grievor’s dyslexia was common knowledge among his colleagues, particularly CO Levy, and if so, how had they become aware of it. She also noted she was uncertain whether anyone had reviewed the video with the grievor. If he could not see it, she asked if someone could detail it for him since it formed the basis for the finding that he conducted himself in an unprofessional manner.

31The grievor recalled two meetings with Mr. Valiatis during which he told Mr. Valiatis that he did not understand the conclusion in his WDHP complaint. He was told the fact finding had been completed and his complaint had been dealt with.

32The grievor was unable to attend the first scheduled coaching session because of illness but did attend in November and Ms. James reported that he had been an active participant and a keen listener.

33There was no further communication between the grievor and the Employer until January of 2010 when the grievor received a phone call from Deputy Superintendent McLeod advising him that Ms. Jackson, Central Region Special Advisor Human Rights, had scheduled a meeting at 1230 hours. He asked his Union representative, CO Small, to accompany him. The grievor was very confused about the reason for the meeting. Ms. Jackson told him that she did not know what his issues were and asked him to tell her what had happened. She told him it was a follow-up to his November meeting with Ms. James. The grievor had thought that once he had completed his mandatory coaching session, his issue had been resolved. Ms. Jackson stated that she had been told by Mr. Roth that the grievor continued to have concerns about the investigation which surprised him because he had never spoken to Mr. Roth about any concerns or asked for any accommodation. He said he was all too aware of the treatment he could expect if he asked for help from this administration. He was telling that to Ms. Jackson when she silenced him to answer her phone. The grievor saw this as another sign of their attitude to his complaint and he had no interest in continuing with the meeting. She persuaded him to sit down and when he was seated she kept asking him what he wanted, over and over. He asked her what she could do for him and the conversation seemed to be double-speak that was intended to confuse him. At that point the grievor felt Ms. Jackson became confrontational and told him that it was not a violation of the WDHP to call him a “retard” and “idiot” if they were unaware of his disability. The grievor told Ms. Jackson that if the Ministry considers such comments as acceptable, he had no desire to continue with the meeting and left.

34The grievor believed that the consequences of filing a WDHP complaint continued to adversely affect his work environment. On February 11, 2011, the grievor e-mailed Mr. Francis Tilling advising him that he had registered at the Ontario Correctional Services College for a LSI-OR training course scheduled for March 29, 30, 31, and requesting approval to attend the sessions as a career advancement opportunity. The response was that the grievor was entitled to 8 hours per year of professional development but, since they were offering this course in-house, Mr. Tilling could not approve the request. He went on to say “This is the type of course that if you get it and don’t use it, you lose it very fast”.

35The grievor’s response was as follows:

I am sorry. I must not understand. I have not received any professional development training that I have requested. Could you please list all the training I have requested in the years you have been in staff training to help me in the direction of professional development of my choosing. All training that I have attended has been mandatory.

36The response from Mr. Tilley was:

It is not what you request but what is supplied, if we do not supply then you can go outside.

37The grievor renewed his request for the in-house training and referred to three employees who had applied for a vacant position who were granted that training. He was told that they had applied for a position that required that specific training and that if he applied for a similar job, he too would be allowed to go. In Mr. Tilley’s experience people who had taken this course but had no need to use it, lose what they had learned. If he took the training but did not use it in his job, he would need to redo the entire course. The grievor was offended by the comment and inquired whether Mr. Tilley was referring to his disability.

38Two employees had witnessed the incident and submitted occurrence reports on November 14, 2008. CO Carla Ongaro has been employed at TWDC for 18 years and had been working in Control, which is adjacent to the Lobby Desk on the day in question. She heard CO Levy yelling. She looked through the Control window and saw her sitting at the front of the Lobby Desk waving her left hand at the grievor who was sitting at his post on the other side of the Lobby Desk. She appeared to be very agitated. This continued for about six minutes. She asked for relief from her post and entered the lobby and, as she approached the desk she heard CO Levy tell the grievor she did not respect him or anyone else. The grievor told CO Levy that she should have reported to work at 1300 hours as assigned. She continued to shout at him in a rude fashion. CO Ongaro testified that she saw CO Levy’s left hand “positioned in a formation where her index and middle finger were held together pointing straight out, her thumb was held upwards and her fourth and fifth fingers curled in toward the palm while pointing the hand in his direction”. CO Ongaro interrupted CO Levy twice in an effort to stop her tirade and remove the grievor from the situation. She stated that the grievor was the victim of a verbal assault that appeared to be escalating. She also stated that the grievor had acted in a professional manner and had not raised his voice. When asked about her ability to view these events she stated that Sub Control is situated near the entrance of the East Lobby. She can observe the Lobby through windows and by a camera that is focussed on the Lobby. The windows surround the room and she can see the lobby, the desk and the front entrance. She filled out the Occurrence Report because she heard loud voices coming from the Lobby and saw Levy standing in front of the desk shouting at the grievor. She said the voices were loud enough to be heard through the closed door of Sub Control. She heard Levy tell the grievor that she did not respect him or anyone else. She said Levy was pointing her finger at the grievor and was very agitated. The grievor looked very uncomfortable and Ms. Ongaro attempted twice to separate them by asking to be relieved. By then the grievor had become angry. She did not remember being asked to submit a report or speaking to anyone before she drafted it.

39She was asked whether Ms. Levy had talked with her hands during the incident and whether she might have misunderstood what she saw. It was suggested to her that she did not see a gun gesture but simply waving hands. Ms. Ongaro did not agree that Ms. Levy used her hands in an animated manner but did allow that if she did wave her hands during the conversation, it might have looked like a gun gesture. She did not recall hearing the grievor tell Ms. Levy that no one liked her or hear Ms. Levy say anything to the grievor about who signed her pay cheques. She firmly reaffirmed her evidence that Ms. Levy had said she did not respect the grievor or anyone else. In redirect she testified that it was not unusual to see hand gestures resembling a gun and they are seldom the subject of an Occurrence Report. She reported it because it was tied in with the content of the report and it was not a sign of a healthy workplace.

40CO Gary Harrison submitted an occurrence report about the incident on November 14, 2008. He has been a CO2 for 28 years, most of that time at TWDC. On November 14, 2008, he was sitting in Visits Control when he heard the grievor ask Levy where she had been between 1300 and 1425 hours. She questioned his right to ask and, according to CO Harrison, became immediately agitated. She began yelling at the grievor and her body language became hostile. “I witnessed what I interpreted to be a threatening gesture by forming her left hand into what appeared to me to be a gun. CO Levy continued to wave her left hand towards CO Groves’ face while yelling such things as ‘I do not respect you’ or ‘any blue shirt in this jail’ and ‘just shut your mouth’”. ‘What are you, a retard’ and ‘I don’t have to answer to you or anyone in this jail’. According to Mr. Harrison, the grievor remained calm and did not raise his voice to Ms. Levy. He had moved his chair to the door of the Visits Room so that he could hear the other CO’s conversations. He could see the grievor sitting in a chair at the Lobby Desk. He did not see Levy at first but then saw her sit in the chair opposite the grievor. As soon as the grievor asked her where she had been she became very upset and raised her voice.

41He was asked to write an Occurrence Report but could not remember by whom. He said he was careful about what he wrote because he knew there was a video camera that had recorded the entire incident. He could not recall whether he had spoken to Ms. Ongaro or OM16 Campbell but stated he had not spoken to Ms. Levy. He did have a short conversation with the grievor but did not discuss the details of what had happened. When it was pointed out that his occurrence report did not mention he was sitting in the doorway, Mr. Harrison stated that it should be clear on the video where he was at the time. He clarified in cross-examination that his reference to hostile body language referred to the gun gesture CO Levy had made towards the grievor. Until then, he stated, the grievor had remained calm and had not raised his voice. Mr. Harrison was questioned about his evidence that the grievor remained in his chair during this exchange when the video shows he did get up twice and walked around her chair. When he was told that CO Levy would deny calling the grievor a retard, Mr. Harrison said he stands by his statement.

42CO Levy has been employed as a CO since June of 2008. On November 14, 2008, she had been assigned to individual training for the morning and to the Lobby Desk for the afternoon. She had been unable to take her breaks during the morning and she took an hour break. She returned to staff training at 1400 hours because she had not been told about the transfer to Lobby Desk. On her way back she was told that someone was looking for her from the East Lobby Desk so she went to the lounge to eat the lunch she had not eaten. She reached the Lobby at approximately 1425 and was immediately confronted by the grievor who started questioning her about her whereabouts. She explained about her missed breaks and told him she had not been advised of the change in orders. Ms. Levy was stressed about this line of questioning and told the grievor that he was not a “white shirt”. He advised her that he was the senior officer and had a right to ask where she had been for 1½ hours. Their voices were not raised at the time but the conversation continued. The grievor told her she had an attitude problem and CO Levy told him if he continued she would “grieve him”. He told Ms. Levy that she was immature and she responded that he was the one acting immature. She told him he should not take his job so seriously. She testified that she did not believe he would have spoken to a senior officer in the same manner. She turned her chair away from the grievor and he continued to belittle her. He stood up and she thought he was trying to intimidate her so she stood up to face him. She told him that she did not care what he thought because he did not sign her paycheque. It was at this point that CO Ongaro left Control to go to the washroom and when she returned she asked the grievor to relieve her for a break. CO Levy did not hear what was said between them but they left the lobby together. She stayed in the Lobby for a short time but then left when CO McArter entered the Lobby and asked her what was wrong. She told her an officer had confronted her on an issue but did not elaborate.

43During the exchange CO Levy felt embarrassed that she was being bullied by a senior officer in front of other officers. She identified at least three other officers who were sitting in the Lobby during this argument but none of them interfered in or reported the confrontation. She filed a complaint under the Ontario Human Rights Code because she felt the allegation about the gun gesture was racially motivated and because she felt the investigation had not been handled properly. She completed an Occurrence Report at Mr. Roth’s request on November 18, 2008.

44CO Levy denied making a gun gesture with her hand and felt the accusation was racially motivated. She saw the accusation as a sign of disrespect. She denied calling the grievor a retard or an idiot and stated she had not known about his learning disability at the time. She did not even know his name and had never worked with him before that day. She denied telling the grievor that she was not afraid of him. She denied placing the Special Olympics poster in the lunch room or any involvement in its placement.

45After she had given her Occurrence Report to Mr. Greer she did not hear from anyone until November 26th when Mr. Mackenzie-Haines called to invite her to a meeting that day. She told him she wanted to have a Union Representative for the meeting but was unable to contact one that day. She was asked to meet with Mr. Mackenzie-Haines in January of 2009 but because of scheduling difficulties they did not connect until May. CO Levy had been off on a WSIB claim until then. During their meeting Mr. Mackenzie-Haines took notes but did not show them to CO Levy. She was shown the video in October and felt it proved she had not pointed a gun at the grievor and that the grievor was trying to intimidate her. She was never shown the April draft or the May final Fact Finding reports nor did she meet with anyone to discuss the findings. She was next contacted by Mr. Roth on May 29, 2009 and advised that the allegations by the grievor had not been substantiated and there would be no further action on the complaint. The letter went on to say that the Fact Finding had resulted in a finding of inappropriate conduct and directed her to attend training on professional conduct in the workplace.

46She did not feel the investigation had been conducted properly and asked that it be reconsidered but was told it had been concluded, that the file was closed and that no further action would be taken concerning the issues.

47She explained that she thought the allegation she used a gun gesture was offensive because it was generated from a stereotypical perception of black youth. She was asked whether CO Ongaro was a racist when she described the gesture and CO Levy said, first, she had lied, but then she allowed CO Ongaro might have misinterpreted what she had seen and she might not have intended to make a racist remark. Both CO Ongaro and CO Harrison based their observations about the gun gesture made by CO Levy towards the grievor. There had been a video of the grievor’s account of what had happened. They were mistaken but the grievor was not. He intended to make a racist comment when he said he saw a gesture resembling a gun had been leveled at him.

48It was pointed out to her that in the video it appears that she and the grievor were leaning into each other while they were talking. She maintained no one had raised their voice at that point and when she was shown the video where she was raising her arm in the air, she agreed it could have been interpreted to be a gun gesture.

49She was asked why she had objected to answering the grievor’s questions and she replied that she had answered them at first but that he kept going on about her lateness. If he had been a Captain she would have responded differently but he was just another CO trying to make her look foolish. It was not his job to assign work to his peers and he had no authority to question her in such a manner.

50Mr. Tony Roth has been employed by the Ministry of Community Safety and Correctional Services for 35 years, eighteen of them at TWDC, the rest at Vanier, Maplehurst, Hamilton and Guelph. He testified that there had been an incident on November 14, 2008 involving the grievor and CO Levy that became the subject of the WDHP complaint and grievance. The incident took place in the East Lobby and there is a video tape of the entire argument between CO Levy and the grievor, which includes several officers who were present for all or some of the event. Unfortunately there is no audio and what was actually said cannot be verified except by the evidence of the people who were there. The police were called because there had been an allegation that CO Levy had made a threatening gesture towards the grievor, they reviewed the video but did not feel criminal charges were warranted.

51Occurrence Reports had been submitted to Mr. Greer, the Superintendent, by the grievor, Ms. Levy and three officers who had witnessed some or all the incident. Mr. McKenzie- Haines, Security Manager, was asked to conduct a fact finding exercise in accordance with the WDHP process. He met with the grievor who was very anxious for the fact finding to begin. Mr. Roth recalled that it was a very busy time in corrections. They were in negotiations that were not going well and the Union had withdrawn from any engagements with the Employer. He had met with the Local representative who told him she was not interested in discussing the WDHP complaint because there were “bigger fish to fry”. As well CO Levy had suffered a workplace injury and was off on WSIB until May of 2009 which caused further delays. Mr. Roth met with the grievor two or three times but was unable to give him any updates as a result of these delays. He did not believe he had ushered the grievor out of his office as he had testified. Mr. Roth said he often had meetings in his office and he might have been interrupted during a meeting with the grievor but it was not meant as disinterest in his complaint. He may have spoken to the grievor in the change room but they only exchanged pleasantries in an informal setting. These encounters were never formal meetings to discuss his complaints.

52Mr. Roth denied ever chastising the grievor for filing a WDHP complaint and testified he was offended the grievor would accuse him of having done so. He recalled getting the Fact Finding Report which concluded that two employees had acted in an unprofessional manner in the workplace. Both of them were directed to attend a mandatory training session on professional conduct in the workplace. Mr. Roth also gave instructions that the grievor and CO Levy were not to be scheduled to work together.

53He did not recall seeing the Special Olympic Poster but did recall discussing it with the grievor. He testified he was unaware of the grievor’s dyslexia. When he asked to be allowed to attend a training opportunity on LSI-OR, he did not feel that the denial was a direct reference to his disability. Mr. Roth had not understood his reaction. Mr. Roth described the training as a three day computer based course that is offered to employees in house and acceptance is determined by staffing complements. He confirmed that usually employees who take this training are working in areas where they need and use the knowledge on an ongoing basis.

54In cross-examination, Mr. Roth testified that he had probably been involved in 15-20 Fact Finding exercises over the years at various levels from investigation to mediation. Some of them were very complex and involved internal and external investigation. Each exercise is conducted based on the particulars of that particular case but involves finding out what happened, who witnessed the incident, what prohibited ground was involved and any other particulars that would assist in the investigation. If he needed advice or assistance, he could call on Cheryl Gaster from WEB. In this case he contacted her numerous times during the process up to the decision making phase. Mr. Roth had received an e-mail from Ms. Gaster dated November 19, 2008, that set out a series of questions and issues to be raised during the investigation. He could not recall if he had sent it on to Mr. Mackenzie-Haines. He allowed that he might have asked the grievor what he wanted from his complaint because sometimes an individual knows, for example, that he/she does not want to work with another. It does not determine the result but it can assist in reaching a resolution.

55Mr. Roth could not recall the grievor telling him about people calling him an idiot and a retard in the corridors and did not remember if he had investigated those allegations. He admitted that if he had, it would have been mentioned in the report. He was aware the grievor had been upset over the delays in the investigation but with everything that was going on at the time, it was difficult to get answers. Normally a Fact Finding report would be completed within three to four months. He did not recall when the grievor told him about the Special Olympic poster but stated he did not investigate the allegations nor ask Mr. Mackenzie-Haines to look into it. He did, however, send out a memo to all staff that stated all employees must adhere to the policies of the institution as well as the Ontario Human Rights Code and the WDHP.

56In summary he was asked whether he had taken any steps to expedite the process, to ensure that all reports had been reviewed and whether he had instructed Mr. Mackenzie-Haines to focus his attention on the video. His answer to all these questions was that he had not. He acknowledged that, while he had not reviewed the video himself, their investigation would have concentrated on the same focus. He stated that, since the police had reviewed the video and found no grounds for charges, he did not think it was necessary to see it himself. He was asked whether he had followed up on Ms. Gaster’s concerns about interviewing all the staff who were involved in or who witnessed the incident and her disagreement with Mr. Mackenzie-Haines conclusion and he could not recall. He felt the dispute involved two employees who could not get along and who needed guidance. At the time he was unaware of CO Levy’s allegations about the grievor and the grievor’s allegations about CO Levy waving a piece of paper in his face.

57Mr. Roth testified that the Employer had done all it could to deal with the issues raised in the complaint. It had scheduled the grievor and CO Levy on different shifts to avoid contact. Other than fingerprinting the Special Olympics poster, they could not identify the people the grievor claimed were calling him derogatory names.

58Mr. McKenzie-Haines has worked for 23 years in corrections. He has been Deputy Director of Operations at Vanier, worked with the SIU and, at the time of the events giving rise to this grievance, was Security Manager. As Security Manager he is responsible for the physical security of the institution and oversees internal administrative reviews of staff and inmates and acts as liaison for outside law enforcement agencies. He reports to Superintendent Greer who asked him to conduct a Fact Finding exercise into an incident that had occurred on the East Wing Lobby on November 14, 2008 between CO Levy and CO Groves and act as lead on the investigation. He secured the video and prepared to interview the other employees who had been involved and/or who had witnesses the scene. He and another security officer watched the video together and then decided to have detectives from the local precinct to view it and advise them if criminal charges should be laid, they did not and Mr. Mackenzie-Haines agreed. He did not see an obvious threatening gesture like a closed fist directed at CO Groves. He met with CO Groves but was unable to schedule a meeting with Ms. Levy first because she needed time to arrange for a Union Steward and then because she was off on a WSIB claim until May of 2009. It was his view that they had both acted inappropriately thus his recommendation that they both attend training on conduct in the workplace. This was the first WDHP complaint he had been assigned to conduct the Fact Finding.

59During his initial steps he watched the video numerous times, between 20 and 30 times. He agreed there was no reference to the conclusions reached by the police in the April Report because, Mackenzie-Haines testified, his conclusions were based on his own observations, not those of the police officers. He did not recall interviewing CO Harrison, and, while he was “pretty sure” he had interviewed CO Ongaro, he did not have any notes of the interview in his file. He allowed that if he had conducted those interviews, they would have been included in his notes and/or report.

60He stated that he had heard about the grievor’s complaint concerning being called an idiot and a retard but that was not part of his investigation. He had been instructed to investigate the incident of November 14, 2008 only and to prepare a report of his findings. He had not been shown CO Levy’s Occurrence Report of the events of November 18, 2008 until he was given a copy at the hearing. He was not aware of Mr. Roth’s memo to staff about their responsibilities under the WDHP when he completed his report.

61He was asked why his second report did not contain the recommendations he had included in his first report. He did not know why but he stated the final report was not a result of new facts but an update on the first report so it did not have to be repeated.

62Ms. Ferreira, counsel for the Union, referred to the grievance filed by Mr. Groves to remind the Board that I am dealing with a grievance alleging discrimination and harassment because of his disability contrary to Articles 2,3, 9 and the Ontario Human Rights Code. There has been no objection to my jurisdiction to hear this matter or to award a remedy, if necessary, including pain and suffering. The grievor has claimed he was subjected to discrimination and harassment because of his disability and was threatened physically with a hand gesture resembling a gun. He reported it immediately and filed a WDHP complaint in conformance with the Employer’s policy. The Employer conducted a flawed and delayed Fact Finding exercise that allowed the situation to escalate.

63The grievor had been employed for 10 years at the time of the incident and has a clean work record. When he was hired he advised his Employer about his disability and, except for one incident years before, has not discussed his disability formally in the workplace. He has not tried to hide it and has spoken about it occasionally on an informal basis with individual co-workers. He had suffered in the past with taunts of “idiot” and “retard” but thought those days were behind him. When CO Levy threw those derogatory words at him, he was reminded about the hurt and embarrassment he felt at the time. After the altercation with CO Levy, his disability became known throughout the jail. He was asked by his colleagues why he was so upset about her words and he felt he has to explain his reaction.

64There is a video of the incident that verifies that CO Levy and the grievor had an argument at the Lobby Desk but there was no audio, there were witnesses who testified they had heard CO Levy yell at the grievor and call him a “retard” and “idiot”. They testified they had seen CO Levy form a gun with her hand and fingers and pointed it at the grievor. It was not clear on the video what had happened but both CO Harrison and CO Ongaro testified they had seen the gesture and verified it looked as if CO Levy was pointing a gun at the grievor. The Union asserts that, on a balance of probability, it has shown that CO Levy made a gun gesture.

65The grievor then filed a WDHP complaint on December 13, 2008. By then Mr. Greer had in his possession, three Occurrence Reports and the WDHP complaint which set out the details of the events of November 14, 2008. He met with Mr. Greer who asked him why he was so offended. The grievor explained about his disability and his history of bullying. The grievor decided that Mr. Greer did not take his complaint seriously when he told him that the gun gesture CO Levy allegedly made could be considered violence in the workplace. As well, when he met with Mr. Roth in December he was rushed out of his office without any real discussion about the complaint.

66The Union submitted that the harassment of the grievor continued. He heard people call him “retard” and “idiot” while he was walking in the corridors. Someone put a poster of the Special Olympics in the lunch room with his name on it. The grievor felt embarrassed and humiliated and filed another Occurrence Report alleging harassment. At about this time he became aware that CO Levy had accused him of racism, an offensive and malicious attempt to slander him amongst his peers. Nothing had been done about his complaints and he began to feel frustrated. He felt the delay in dealing with the complaint was seen by CO Levy as a sign they condoned her actions and she was encouraged to continue and escalate her harassment. When he applied for the training session on LSI-OR he took the Employer’s denial to be directly based on his disability. The Employer did not think he would retain what he had learned.

67The investigation was initiated in early December of 2008 and the draft report was released in April of 2009. The final report was further delayed because Mr. Mackenzie-Haines had been unable to interview CO Levy. In the meantime the grievor was subjected to threatening gestures, discrimination and harassment for an extended period of time that had the effect of creating a poisoned work environment.

68The grievor reported what he believed was discrimination, harassment and a poisoned work environment in a continuing and consistent effort to have it dealt with under the WDHP policy. The investigation was fundamentally flawed from the beginning. In the first draft of April 2009 Mr. Mackenzie-Haines had not even interviewed CO Levy when he submitted his findings and recommendations. He did not interview any of the CO’s who had submitted Occurrence Reports. He was told to begin an investigation without any direction about the focus. He ended his investigation on November 18th and did not take into account the grievor’s assertion that the discrimination had continued. When the grievor filed another WDHP complaint Ms. Gaster posed more questions about the content of the inquiry which were never communicated to Mr. Mackenzie-Haines.

69In support of its position the Union relied on the following cases: Re OPSEU (Chan) and Ministry of Education, GSB # 1990/90 (June 27, 2007) unreported (Dissanayake); Re OPSEU (Simon) and Ministry of Solicitor General and Correctional Services, GSB # 2568/96 (September 18, 1998) unreported (Dissanayake); Public Service Grievance Board (Charlton) GSB # P-2006-0291 unreported (Don Carter) and Hill V. Spectrum Telecom Group Ltd. 2012 HRTO 133.

70Mr. Dailleboust, counsel for the Employer, took the position that there is no dispute that an incident occurred on November 14, 2008 between the grievor and CO Levy. If the grievor’s account of the confrontation is accurate, there is also no dispute the Employer finds it repugnant and took steps to deal with it immediately by setting up a Fact Finding under the WDHP policy. There was an allegation of a threatening gun gesture by CO Levy, which was never proven, and the Employer called in the police for their opinion about whether criminal charges were warranted. That the grievor’s claim that people were calling him “retard” and “idiot” was taken seriously by posting an e-mail reminding people about their obligations under the Human Rights Code. There was no way to discover who had said these words or that they were directed at the grievor. When the grievor complained that this treatment was continuing, the Employer did not post another e-mail because it did not feel another e-mail would have any effect. Mr. Roth also took steps to ensure that the grievor and CO Levy were not scheduled to work together.

71It was submitted that the evidence has established that the grievor’s disability was not well known in the institution. He had at one time informed some people about it but CO Levy testified she was not one of them. Mr. Greer and Mr. Roth did not know. Even the grievor acknowledged that it was not known throughout the institute. The Employer agrees though, that once he was made aware, he had an obligation to protect the grievor from discrimination and harassment. However, that obligation does not create a strict liability. Only evidence of a complete failure to it deal with it would create liability and the evidence does not exist in this case. The Employer took all the steps it could to resolve the matter.

72It was submitted that the Employer appointed Mr. Mackenzie-Haines to conduct a Fact Finding because he had experience in doing them. Only if this Board should find the direct actions by the Employer were not enough can it conclude Mr. Mackenzie-Haines was not qualified.

73It was said that the delay in the investigation has been explained. It was out of their hands at the time. The standard for the Employer is not perfection. As long as the Employer made reasonable efforts to provide a safe work environment, it cannot be faulted if the efforts were unsuccessful.

74The Employer asserted that the Board should dismiss the grievor’s claim for damages. It should follow the Fleet case which found that where there has been no economic loss, there are no damages.

75It was stated that this should not have happened but it is not the result of a systemic problem but rather the consequences of a conflict between two employees. The Employer tried to uncover the truth and at all times acted in the grievor’s best interest.

76In support of its position the Employer relied on the following cases Ontario Public Service Employees Union [Tardiel et al] and The Crown in Right of Ontario [Ministry of Community Safety and Correctional Services], GSB Nos. 2005-1443 and 2005-3884 [Albertyn]; Ontario Public Service Employees Union v. Ontario [Ministry of Community Safety and Correctional Services] [Tardiel Grievance], [2011] O.G.S.B.A.No.80. Lee et al. and the Crown in Right of Ontario [Ministry of Community Safety and Correctional Services], PSGB No.P-2012-0702 and P-2010-1055 [O’Neil]. Fleet Industries v. International Assn. of Machinists and Aerospace Workers, Local 171 [Grievance], [1997] O.L.L.A. No. 791. Ontario Public Service Employees Union [Laframboise] and The Crown in Right of Ontario [Ministry of Community &Social Services], GSB No. 2268/95 [Roberts]. Ontario Public Service Employees Union [Sager, Shelley et al] and The Crown in Right of Ontario [Ministry of Transportation], GSB No. 2000-0377 [Mikus]. Ontario Service Employees Union [Press] and the Crown in Right of Ontario [Ministry of Health and Long-Term Care], GSB No. 2003-1461 [Mikus]. Shlomo Conforti v. Investia Financial Services Inc. and Industrial Alliance Insurance and Financial Services Inc. 2011 CanLII 60897 [OLRB]. Peter Ljubja v. The Aim Group Inc. and General Motors of Canada Limited, 2013 CanLII 76529 [ON LRB]. Toronto Transit Commission v. Amalgamated Transit Union [Stina Grievance], [2004] O.L.A.A. No. 565. 11. Cara Operations Ltd. [c.o.b. Toronto Flight Kitchen] v. Teamsters Chemical, Employees and Allied Workers Union, Local 647 [Palmieri Grievance], [2005] O.L.A.A. No. 302.

77In reply, the Union agreed that there is not strict liability but asserted that it can exist if the Employer fails to take reasonable steps to deal with claims of discrimination and harassment. In this case the Employer’s efforts fall short of reasonable. The Human rights Code specifically allows for damages for loss of dignity which the grievor has testified

REASONS FOR DECISION

78The grievance before me states as follows;

I grieve that management violated but not limited to the collective agreement Art. 2- Management Rights, Art. 3 – Harassment/ Discrimination, Art. 9 – Health and Safety, and Employer’s WDHP policy.

I submitted a WDHP complaint on November 14, 2008 with Mr. Greer. The Employer failed to acknowledge and address my WDHP complaint therefore condoning a poison work environment thus creating an unhealthy work environment.

The relevant provisions of the collective agreement read as follows;

ARTICLE 2- MANAGEMENT RIGHTS

2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees; for just cause; determine organization, staffing levels, work methods, the location of workplace, the kinds and locations of equipment, the merit system, training, and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject.

ARTICLE 3 - NO DISCRIMINATION/ EMPLOYMENT EQUITY

3.1 There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability, as defined in section 10(1) of the Ontario Human Rights Code [OHRC].

3.2 There shall be no discrimination or harassment practised by reason of an employee’s membership or activity in the Union.

3.3 It is recognized that in accordance with section 14 of the Ontario Human Rights Code, the Employer’s employment equity program shall not be considered a contravention of this article.

ARTICLE 9 – HEALTH AND SAFETY AND VIDEO DISPLAY TERMINALS

9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall cooperate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.

79In Re Simon the grievor, a gentleman of African descent, grieved that he had been subjected to racial harassment when KKK was scratched into the walls of the institution and when he complained, on October 17, 1997, the signs were not removed for several months. Although the signs were not directed at him personally, the Board found that since he was a member of a group of people identified under the Code, he had a legitimate claim to charge the Employer with a violation of Article 3, which is essentially the same as the one before me.

80The identity of the person who scratched the signs was never discovered but it was determined that it must have been an employee of the institute but not necessarily a supervisor. The Board, in McKinnon, determined that the Employer is always liable for the discriminatory conduct of its management. The Employer was not strictly liable for the conduct of its employees but did have an obligation to ensure that employees are free from discrimination by other employees. The Board noted that the rights conferred on employees would be illusory if the employer could stand idly by while another employee harassed another. The Board stated at page 45:

…the employer’s liability depends on its knowledge of the offensive conduct and 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 that 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.

81Applying those principles to the instant case, this grievance arises from an incident that occurred on November 14, 2008 in the East Wing Lobby between the grievor and CO Levy. Having considered all of the evidence, including the video, I have concluded that CO Levy did not report for work at 1300 hours as scheduled and, when the grievor questioned her lateness, she became annoyed and challenged his right to make these inquiries since he was not a “white shirt”. The discussion became more heated and, according to my review of the video, they were angry. The grievor stated that she called him a “retard” and “idiot”. He testified she raised her left hand towards him with her first two fingers pointed at him and her thumb and fourth and fifth finger folded under in a gesture that resembled a gun. CO Levy denied both allegations and testified that neither of them was angry or had raised their voices at this point. The video does not have any audio so it does not help me decide what was said but their body language shows they approached each other in anger and it is more likely than not that their voices were raised. Additionally, two CO’s who witnessed the incident testified that they heard CO Levy shouting at the grievor and calling him a “retard” and an “idiot”. Their evidence on that point was unshaken.

82With respect to the alleged gun gesture, the evidence is less clear. The quality of the video is poor and while CO Levy is seen waving her hands, it is not possible to determine the position of her fingers. Both CO Harrison and Ongaro wrote in their Occurrence Reports that they had seen the gun gesture and, while they acknowledged in cross-examination that they might have misunderstood what they had seen, in reply they maintained that CO Levy’s hand was raised in the shape of a gun. I accept their evidence on this point as well.

83The grievor filed a WDHP complaint alleging the derogatory comments made by CO Levy were discriminatory because they were referring to his learning disability. He also felt the gun gesture was a threat to his safety. He met with the Superintendent, Mr. Greer, within a week of the incident, who forwarded his complaint to the Deputy Superintendent, Mr. Roth, who appointed Mr. Mackenzie-Haines to conduct a Fact Finding in accordance with the WDHP policy. Mr. Roth also contacted the police to investigate the significance of the gun gesture. On November 19th he was asked by the grievor for an update and at the same time he renewed his request to have the Employer investigate the discrimination and poisoned work environment because he was still being called a “retard’ and “idiot”. On November 27th, Mr. Roth circulated an e-mail reminding employees that about their joint obligation to work in an environment free of discrimination and harassment. The following day he took steps to ensure that the grievor and CO Levy were not scheduled to work on the same unit.

84Based on the evidence I find that the grievor was the victim of comments that were derogatory and discriminatory. He is a member of a group identified in the Code under one of the prohibited grounds.

85Was the Employer liable for this violation of the collective agreement provision and the Human Rights Code? The Employer responded to the grievor’s concerns quickly and, if that had been the end of the incident, its actions to that point could not be faulted. However, that was not the case. There were difficulties with the Fact Finding report that were identified by Ms. Gaster. They were ignored but raised issues about how it was conducted. It appears that the investigation did not go beyond the day of the incident and the few days following and did not acknowledge the grievor’s allegations that he was still being the target of derogatory remarks for some time after. There is no mention of the Special Olympics poster in the report. It was not just posted in the lunchroom, it was posted with the grievor’s name on it specifically. That was a tangible indication that he was not imagining the alleged discrimination.

86There seems to have been a common belief that because CO Levy did not know about the grievor’s disability, her use of those terms was not intended to be discriminatory. It has been said many times that it is not the intention or motivation but the effect of the discriminatory conduct that must be dealt with. In any event, after the grievor filed his complaint, the Employer and CO Levy became aware of the grievor’s disability the employer’s obligation was clear.

87Another indication of the Employer’s attitude was evidenced when Mr. Roth dismissed the grievor’s concerns before the Fact Finding began when he told the grievor that unless he could identify the persons calling him names, there was nothing he could do for him.

88Once the Employer was made aware of the grievor’s disability and the derogatory terms he had been subjected to with respect to that disability, it had an obligation to take action to ensure a safe working environment free from discrimination and harassment. In this case the Employer did not. The Employer did take some steps to that end but not enough. The Employer did send out a memo to all staff about their obligation to comply with the Ontario Human Rights Code but it was worded in such an ambiguous manner, it would have been easy for employees to ignore it. Unless you were one of the people directly involved in the incident, you would not understand what it meant. When Mr. Roth was told that the comments were continuing, he did not think it would be of any use to issue another memo. When faced with discrimination and harassment, the Employer has a duty to seek alternative means to combat them. Giving up because a first attempt did not seem to be successful is not acceptable.

89It is worth saying that, even if no individual employee had a disability, when an Employer is aware that an employee is using such insulting and demeaning language, especially in front of other employees, it is incumbent upon it to make it clear that such language is unacceptable and that there will be consequences for anyone who persists in using it.

90Initially the WDHP complaint Fact Finding was in response to the incident of November 14, 2008, but it became clear fairly soon thereafter that there was more to it and the investigation should have been broadened to deal with the grievor’s allegations of continuing discrimination and harassment.

91There are other aspects of the Fact Finding Report that might explain the grievor’s dissatisfaction. The April report was prepared without the input of CO Levy. It concluded that his allegations had not been substantiated without even hearing her side of the story. I assume the report concluded that the allegations of discrimination and harassment had not been substantiated but the report appears to discount the grievor’s account in total. It makes no mention of the other witnesses’ Occurrence Reports which corroborated the grievor’s account.

92Again, it would have been reasonable, based on the limited time frame of the investigation, for Mr. Mackenzie-Haines to find that it was nothing more than a dispute between two employees. The conclusion and recommendations in Mr. Mackenzie-Haines’ reports would have been an appropriate and reasonable result in those circumstances. However, that was not the end of it. The grievor, five days later, told Mr. Roth that he was being called “retard” and “idiot” when he walked down the corridors and asked him to investigate his poisoned work environment. Subsequently the grievor complained that CO Levy was accusing him of being a racist, which he found offensive, and mocking him by acting as if she was filing a complaint against him. He believed she was intentionally harassing him and was seeking assistance from the Employer. He felt the Employer’s failure to act was a message to the harasser that it condoned her actions.

93The WDHP policy defines discrimination as any practice or behaviour, whether intentional or not, which has a negative impact on an individual or group based on one or more of the prohibited grounds under the Code. There is no dispute that disability is one of those prohibited grounds. Harassment is defined as engaging in a course of vexatious comment or conduct against an employee or other worker in the workplace that is known or ought reasonably to be known to be unwelcome and includes personal harassment and harassment based on the prohibited grounds cited in the Code. There is no doubt that the grievor was subjected to a course of action that was related to his disability and that it created a negative impact on his workplace. It was a course of vexatious conduct that ought to have been known to be unwelcome. The policy also states that allegations of discrimination and harassment are to be taken seriously and responses are to be timely. The Fact Finding is intended to correctly identified problems with the purpose of restoring the positive work environment and preventing future violations of the collective agreement or Code. In this case the Employer failed to correctly identify the problems, or at least the true nature of the complaint.

DECISION

94I find that the grievor was subjected to discrimination with respect to his disability and harassment by another employee. Both of these are violations of the collective agreement and the Ontario Human Rights Code. He complained promptly and expected that his Employer would deal with his concerns. There is no strict liability on the Employer for these violations and any liability that may apply depends on the extent of its knowledge and its efforts to eliminate them.

95In this case I find that the Employer did act promptly when it appointed Mr. Mackenzie-Haines to conduct a Fact Finding into the grievor’s allegations. I was not advised about the terms of reference he was given or the scope of his investigation but it appears to me that the report that resulted reviewed the events of November 14th and came to the conclusion that the grievor’s allegations had not been substantiated. There is no reference to any of the events the grievor had complained about following November 14th, 2008 including a subsequent WDHP complaint and this grievance. The Employer’s response to the first WDHP complaint was not enough. The investigation should have been broadened to ensure the grievor’s right to a workplace free of discrimination and harassment.

96This was not a case of a systemic discrimination but rather, in my view, the actions of an individual employee. There has been no suggestion that the name-calling escalated and became common throughout the institution. In fact, it would seem that the discriminatory comments and harassment ceased and is no longer a concern for the grievor. Nevertheless, from the date of the first incident in November of 2008 until at least the end of 2010, he felt his working environment had been poisoned by the discrimination and harassment. I agree with him.

97I find the Employer did fail to ensure a workplace free from discrimination and harassment. It failed to meet its obligation to investigate in a complete and thorough manner the real complaints of the grievor. It was of the view that because it and CO Levy were unaware of the grievor’s disability, her remarks could not have been discriminatory. When the remarks continued after she/they were aware, it had a responsibility to investigate. Mr. Roth decided that he only had to act if the grievor could identify who was throwing these insults. That was not the grievor’s responsibility and, in any event, the fact they were unidentified at the time is not an excuse to ignore such a serious situation. Finally, Mr. Roth’s attitude that posting another memo about discrimination and harassment would be a waste of time is unacceptable. The battle against both of them is continuous and when one avenue fails, the Employer has a duty to look for another. Otherwise, it never ends. People ignore warnings because they have no follow-up consequences.

REMEDY

98The grievor is entitled to a declaration that the Employer failed to provide a workplace free from discrimination and harassment.

99The union has asked for damages. In the Simon case (supra), the grievor provided medical evidence of the effects of the discriminatory actions in the institution on his blood pressure and his home life. He was awarded compensation for all lost wages, with interest, and the sum of $1,000.00 for mental and emotional suffering. In the Re Charlton case (supra), the grievor received a letter full of racist and sexist insults. The Union and the Employer reached an agreement on the facts but asked the Board to deal with the appropriate remedy. The Board stated that its jurisdiction to award a remedy flowed from the terms of employment between the grievor and the employer that guaranteed the grievor a workplace free of racial discrimination and harassment. The remedies also flow from the Board’s inherent remedial jurisdiction. It stated, at page 11:

The Board does not accept the argument that, where there has been the breach of the contractual guarantee of freedom from racial harassment in the workplace, that compensation for loss of income relates only to the injury to the victim’s health. The jurisdiction of this Board is to compensate the grievor for damage to her dignitary interest as far as can be done by a monetary award. A monetary award that does not provide for complete compensation for the full financial loss arising from the breach of such a fundamental term of the contract would far well short of this remedial mandate. Put another way, if the grievor’s dignitary interest is to be restored, she should not be financially worse off than if the racial harassment had not occurred. The Board, therefore, concludes that it does have jurisdiction to compensate the grievor for all financial losses that flowed from the workplace racial harassment that she suffered.

100The Board ordered that the grievor be reimbursed with all monetary losses. It noted that awards for mental distress can only be awarded if there has been a breach of the collective agreement. In that case the Board ordered the employer to pay the grievor $20,000 for mental distress arising from the breach of the guarantee of freedom form discrimination and harassment. The grievor, in that case, had suffered severe consequences because of the harassment she experienced. She was off work for quite a long period of time, and while she was not working, she had no income. The stress of her financial problems and the harassment caused her extreme stress which explains the amount of the damages. In the case before me, I have no evidence of financial losses or any medical reports to speak to the grievor’s state of mind. He testified that he felt humiliated by being called a “retard” and an “idiot”. It brought back memories of his childhood when he was bullied for being in a special class. I accept his evidence on this point. His enjoyment at work and his security at work were lessened not only by the derogatory comments but also by the indifference of his Employer.

101Calculating the appropriate damages for loss of dignity and mental distress is not an exact science. The cases provided to me have a range of $1,500 to $25,000, depending on the nature of the offence, the duration of the offence, the attempts by the employer to eliminate the harassment and the effect on the grievor. In the instant case I believe an award in the amount of $1,500.00 is appropriate.