GSB#2010-2380

UNION#2010-0224-0031

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lefkowitz)

Union

• and -

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

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Eric del Junco Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Service Branch Counsel

HEARING

October 5, December 14, 2011; March 1 & March 29, 2012; January 16 & 21, February 21, April 15, May 14, 15 & May 30, 2013; January 17, 2014.

Decision

1Marsha Lefkowitz is a Registered Nurse who worked at Owen Sound Jail from 2005 until its closing. In late 2010 she filed a grievance that briefly encapsulates the issues in this case. It stated:

I grieve that I was verbally assaulted by an Operational Manager and also by a member of the public who was allowed access to the institution by this same Operational Manager. I believe that my rights under Bill 168 have been violated.

I am also grieving that the Employer failed to protect me and continues to fail to protect me under Bill 168. I am also grieving a violation of the WDHP, health and safety and all other applicable policies and articles.

2The grievance was filed after an incident that occurred on November 18, 2010 involving the grievor and a particular Operational Manager who shall heretofore be referred to as “Mr. B.”.

3The Employer’s reply to the grievance from Superintendent Angela Rankin stated, in part:

When the events of November 18, 2010 were brought to my attention, immediate steps were taken to gather information. Staff members involved in the incident, witnesses were required to submit occurrence reports, and I spoke verbally to many of them.

I have reviewed all of the information provided to evaluate the situation. While it is evident that Mr. B. behaved in an unprofessional and inappropriate manner, the behaviour you reported does not constitute a violation of either policy.

Please be advised that you have Ministry’s full support in the workplace and I will be taking appropriate action to address the inappropriate incidents that occurred. As well, as an OPS employee, the services of the Employee Assistance Program are available to you.

4In opening comments, the Union informed the Board that it would seek fifty thousand dollars in damages for stress, embarrassment and humiliation suffered by the grievor and for the violation of her rights. Further, it would ask for an order that Mr. B. not be allowed to return to the workplace until and unless he can show that he has received medical attention regarding his treatment of women. At least in part as a result of these remedial requests the parties agreed on a without prejudice basis to offer Mr. B. standing in these proceedings. Mr. B decided not to participate although he was ultimately called as a witness for the Employer.

5In the Union’s particulars the following was asserted:

• Gender was a factor in Mr. B.’s misconduct towards the grievor on November 18, 2010 and this conduct constituted discrimination and harassment on the ground of gender as well as workplace bullying and violence.
• This conduct created a poisoned work environment for the grievor and other female staff.
• The Employer knew or ought to have known that Mr. B. was likely to engage in misconduct of this nature and was reckless or negligent in failing to take steps to prevent such misconduct prior to November 18, 2010.
• The Employer failed to take adequate steps following this incident to remedy the poisoned work environment thereby exacerbating the harm suffered by the grievor.
• The conduct of Mr. B. and the Employer was contrary to:
  1. the collective agreement including Articles 3 and 9
  2. the Human Rights Code, including s.s. 5 and 7
  3. the Occupational Health and Safety .Act, including s. 25 and Part III.0.1

6The Union made it known in its opening statement that it intended to call a number of witnesses to give evidence regarding Mr. B.’s past conduct in the workplace. Though it acknowledged that much of this evidence was not grieved at the time, it reassured the Board that no remedy would be sought for these instances of misconduct. The Employer objected strenuously to the admission of this evidence. In an interim decision dated November, 28, 2011 the extent of this dispute was set out. It stated:

It was also stated in the Union’s particulars that, “for many years before the incident which precipitated this grievance, OM B’s sexist conduct was notorious throughout this workplace. He was known by all staff as the “hound dog” reflecting his tendency to compulsively engage in inappropriate sexual behaviour in the workplace. His violent temper and tendency to engage in violent verbal outbursts were also notorious.” According to the Union’s particulars, three other incidents involving females have occurred. Each involved female Correctional Officers. One incident was in 2007, one in 2008 and another in 2009. There were also “general incidents” of misconduct mentioned “over the past five years”.

7In the November 28, 2011 preliminary decision, the submissions in this regard were set out in full. It is not my intention to re-state those arguments. It was ultimately decided at that time to hear the evidence while reserving on the matter of whether to admit the evidence of incidents occurring prior to November 18, 2010, regarding Mr. B.’s conduct.

8After much consideration, I am of the view that the evidence of prior incidents should not be admitted. The Union suggested that this evidence was necessary in order for this Board to determine the extent of the dispute. It suggested that the Board had three questions to answer in this matter. The first is whether the Employer was negligent due to its failure to appropriately respond to Mr. B’s misconduct; whether gender was a contributing factor to the grievor’s mistreatment; and where there was a poisoned work environment for female staff as the result of Mr. B.’s conduct and if so how did it affect the grievor on November 18, 2010.

9I disagree with the Union’s characterization of the matters for this Board to hear and determine. Indeed, the grievance on its face is quite specific about the issue to be addressed. The grievance clearly alleges that Ms. Lefkowitz was grieving the verbal assault by Mr. B. and a member of the public. It further alleges that the Employer failed and continued after to fail to protect her. There is reference to Bill 168, health and safety and WDHP.

10According to the evidence and documents before this Board there was no reference to either gender as a contributing factor or of a poisoned work environment until the Union’s particulars were given to the Employer. There is no reference to Article 3 or the Human Rights Code on the face of the grievance and given that other statutes and Collective Agreement provisions were referenced, I cannot allow the Union to significantly expand the scope of the dispute at the hearing room doorstep.

11Accordingly I will not admit or consider the evidence offered regarding Mr. B.’s conduct prior to November 18, 2010.

12Ms. Lefkowitz was the first witness heard from in these proceedings. She testified about the incident that took place on November 18, 2010 and it is fair to say that her recall of the incident was, in large measure, corroborated by most of the other witnesses.

13After graduating in 1979 Ms. Lefkowitz, spent most of her nursing career engaged in community nursing. She had also worked in a research hospital and in a hospice environment. Her employment with the Ministry began at the jail in 2005 as a casual nurse. Beginning in the spring of 2010 she began working close to full time hours due to backfilling for the sick leave of a co-worker.

14The duties and responsibilities for Ms. Lefkowitz are similar to those of all nurses working in correctional facilities and included assessment and triage of inmates upon admission; dealing with any immediate health issues upon admission; creating and implementing care plans to provide acute and chronic nursing care of inmates. There were a total of four nurses and one physician to care for the health of the inmates at the Owen Sound Jail.

15Once a week the physician, Dr. Debra Dyke, attended at the jail for “Doctor’s Parade”. She would attend for approximately an hour and a half during which time all inmates in need would be brought to the health care office by Correctional Officers to be seen. The Senior Nurse on duty would assist Dr. Dyke during the parade. According to Ms. Lefkowitz, prior to the physician’s arrival she would prepare for the rounds to ensure that no time was wasted. This preparation would include creating a roster; organizing charts and ensuring that all equipment and information was at hand for use by Dr. Dyke in her attending of the inmates. She would give the Correctional Officers a list of the inmates to be seen by the physician and they would be brought to the health unit lining up outside the door while waiting their turn to be seen. The number of inmates to be seen varied depending on a variety of factors. As few as three or four might be seen on some days while other days would have as many as twenty-five inmates needing medical attention. This parade was the only opportunity each week for inmates to be seen by a physician. Ms. Lefkowitz testified that she had assisted Dr. Dyke on many occasions prior to November 18, 2010.

16On November 18, 2010, Ms. Lefkowitz was the only nurse on duty and so the task of assisting with Doctor’s Parade fell to her. She was expecting Dr. Dyke to appear at the jail at approximately two o’clock. While awaiting her arrival Ms. Lefkowitz was called away by Mr. B. to attend an emergency in the inmate area. A young female inmate was found on her bed and was difficult to rouse. The grievor assessed the inmate and found her vital signs to be stable. However, she was concerned about her inability to be roused. The grievor learned that one of the Correctional Officers had found a syringe with some remaining clear liquid in the female unit shortly before this call. Accordingly, the grievor called for an ambulance and following as assessment by the paramedics, the inmate was transferred to the local Hospital.

17Upon her return to the health care office Ms. Lefkowitz encountered Dr. Dyke entering the area at approximately 3:00 pm. After they both got settled the grievor began giving Dr. Dyke a report regarding the inmate who had just been sent to the hospital. Dr. Dyke telephoned to the Hospital regarding the inmate. Shortly after this debriefing began the phone rang in the office but the grievor did not answer. She testified that it was usual practice to have parade unfold without interruptions and that included not answering the telephone allowing those calls to go to voice mail.

18According to the grievor, while she was still giving her report to Dr. Dyke, a Correctional Officer, Joe Murphy, attended at the door and told the grievor that Mr. B. wanted her to report to the sally-port area to speak with the father of the inmate who had just been sent to the Hospital. Ms. Lefkowitz testified that she did not know what to do because she does not normally leave the physician alone during Doctor’s Parade. She looked to Dr. Dyke who told Mr. Murphy that the father should be told to go to the hospital.

19Ms. Lefkowitz said that approximately a minute later the steel door to the health care office opened and Mr. B. entered the room. She stated that Mr. B. was red in the face and looked “like he was ready to explode”. He pointed his finger at her and screamed at her through gritted teeth. He told her that when she was given an order she was to follow that order. He asked her why she did not answer the phone or attend at the sally-port as she was ordered to do. Mr. B. told her that he had brought the inmate’s father who had information they should know. Dr. Dyke nodded in assent to this suggestion and the man “bolted” into the small office and the door was closed behind him.

20The grievor testified that closing the door to the health care office was most unusual. It normally remained open during the parade with the Correctional Officers stationed outside to ensure safety and security for the nurse and the physician. The grievor said that she was taken aback because she had never seen an “outsider” admitted to this area of the jail. Further, he had an attaché case and in the normal course of events cases such as this would not be allowed into the jail.

21Ms. Lefkowitz testified that the man, who self-described himself as the inmate’s guardian, appeared very angry. He expressed his anger about the care his daughter received and about the mental health system. During this time the grievor was very frightened by this situation. It was her evidence that she was worried that there could have been a gun or a bomb in the case.

22Dr. Dyke and the grievor managed to settle the man and his anger was assuaged. He told them that he had medications that the IM had been taking including antibiotics needed for her care. Dr. Dyke advised the man to go to the hospital to see the inmate and he agreed to do so.

23According to the grievor, shortly after her return to the health care office Mr. B. came into the room again and began to scream at her. He kept repeating that when he issued an order he expected that order to be followed. Ms. Lefkowitz was “frozen and in shock” by this display. Mr. B. told her to report to his office following Doctor’s Parade.

24The grievor stated that the parade did not take place that day because she and Dr. Dyke were “dumbfounded” and “in shock”. According to Ms. Lefkowitz, Dr. Dyke said to her that she had no idea that nurses could be subject to such abuse. Dr. Dyke then left the jail.

25Ms. Lefkowitz said that after Dr. Dyke left she attended Mr. B.’s office with Joe Murphy who is a Union Representative. They entered his office and he began yelling and screaming at her again. He demanded to know why she did not answer the phone or attend at the sally-port when ordered to do so. The grievor attempted to explain that the phone is never answered and that she would have had concerns talking with the guardian of the inmate because of confidentiality concerns. There had been discussion amongst the nursing staff about this matter and she would not have contravened her professional responsibility. Mr. B. continued to scream at her and finally Ms. Lefkowitz left his office in tears. She was shaking and had much difficulty finishing her tasks that day but felt professionally obligated to do so.

26The grievor testified that Mr. B. was “very much out of control”. He yelled at her and humiliated her in front of a number of Correctional Officers. She was affected deeply by his treatment of her.

27The following day the grievor spoke to the Superintendent about the incident. She said in her evidence that she “emphatically asked” Ms. Rankin to address the situation in a timely manner. She was told that there would be a meeting about the incident that afternoon. She was asked to write a report and advised to contact EAP if necessary. She asked about filing a WDHP complaint and was told that there had to be “three vexatious comments” in order for such a complaint to be undertaken. Consequently she never filed a WDHP complaint.

28Ms. Lefkowitz said that other staff approached her that day and in the following days about how she had been treated by Mr. B. there was much concern. She wrote a report on November 18, 2011 that stated, in part:

After the I/M was transferred, Dr. Dyke arrived for her scheduled Doctor’s Parade. This writer conferred with Dr. Dyke and conveyed the incident as was professionally appropriate. As this time is normally set aside to be professionally exclusive and necessary to review information, this writer did not answer the phone nor acknowledge the Correction Officer’s message demanding I leave the office and go to the control area, especially since no reason was given.

Shortly after, OM Mr. B. approached the door in a condescending and bullying rage stating to the effect that when he gives the writer an order, this writer is expect to follow through. This unabashed show of raw anger was without consideration for Dr. Dyke, or the relative of IM who had accompanied Mr. B. directly to the nursing station. Mr. B. explained abruptly through gritted teeth, that he expects this writer to speak with the IM’s father. At that point, out of consideration, the writer invited the father to sit down and ventilate his grievances mostly regarding his frustrations with the mental health system.

Dr. Dyke, who had worked in psychiatry was somewhat familiar with the situation and was able to give counsel. She had suggested as well that the “father” go directly to the hospital in order to obtain the information he required. The IM’s father accepted this recommendation graciously and respectfully allowed the termination of the meeting.

Dr. Dyke expressed her disdain at the inappropriate and untimely behaviour of Mr. B. It was unprofessional and damaging to a team that generally does its best to work collaboratively. This writer should not be expected to meet with someone as critical as a family member in this type of situation without forewarning and preparation. My role as a casual nurse does not afford me the training and fine-tuning required in such a sensitive situation. And it certainly does not warrant being the recipient of any archaic “military” attitude.

Dr. Dyke was mutually offended and terminated any further conduct of medical business for the day.

29Six days later, the grievor wrote a follow-up incident report. It said, in part:

The following underscores questions and comments that need to be acknowledged and addressed by Superintendent Rankin in regards to the incident with Mr. B. on November 18, 2010.

• Was a proper security screen conducted on the individual otherwise identified to the writer as the IM’s father, before entering the jail proper?
• This individual entered the health care office in an angry and frustrated state, and had in his possession an attaché case. Was this case examined thoroughly and dealt with as per security protocol?
• This individual was exasperated with the mental health care the IM received at the jail and believed her care was mismanaged. He conveyed that he had been looking after her interests, and had made sacrifices for her well-being. He also indicated that she had a dental issue and withdrew 2 prescription bottles from the attaché case. One bottle was labeled as an antibiotic and the 2nd bottle was labeled oxycodone, a controlled substance.
• This writer asks why the Correctional Officers on duty permitted the entrance of this individual to the back of the jail, who not only had a dubious identity, but was later found to have questionable integrity and motives.
• Mr. B. should have known health professionals require written consent for disclosure from the IM. The position this writer was placed could be one of liability for breach of confidentiality.
• It turned out that the information the IM’s father was seeking could have been addressed in an alternate manner by Mr. B. in the sallyport area of the jail. The individual should have been directed to the hospital.
• As this individual was physically positioned outside the health care door, there was a sense of planned coercion on behalf of Mr. B. to meet with the father without question.
• This individual boiled into the office and the door closed behind him. This writer felt we had no choice but to diffuse the situation and deal with this man. This resulted in an unexpected amount of pressure and stress that we were not able to reasonably prepare for.
• I believe that it was because Dr. Dyke had familiarity with the IM’s case having worked in the emergency department over this weekend, that she was able to counsel this individual without incident.
• This writer and Dr. Dyke experienced a sense of paralyzing amazement if not horror at this unchecked display of poor judgment.
• This writer was subjected again to Mr. B.’s infuriated command that this writer be seen by him in the office.
• Dr. Dyke cancelled the parade in protest of Mr. B.’s audacious behaviour and left the jail.
• Union representative Joe Murphy accompanied this writer downstairs to the classification office, where Mr. B. repeated his verbal attack that I was in breach of not following orders. This writer responded, “I have never been instructed to taking orders in such a context”. I did not say this at the time, however, as a registered professional nurse, I am not obligated to follow an order if against CNO regulations. This incident contravenes confidentiality, and raises important safety and ethical issues.
• Nurses are historically targeted for violence and therefore underscores the gravity of this incident.
• Mr. B was on duty the following Monday and Tuesday mornings coinciding with this writer’s schedule. This writer has no alternative relief. Doctor’s Parade had been changed to this Tuesday. This was of great discomfort to this writer and Dr. Dyke. This schedule was poorly thought through in light of the trauma of the past event.
• Nurse H. confirms that the telephone is not answered and goes to voice mail when the doctor is in the health care office.
• This writer trusts these issues will be investigated professionally and completely in a timeful (sic) manner.

30Ms. Lefkowitz next saw Mr. B. on the following Monday. She was surprised, as she did not expect to see him back in the workplace so quickly. She saw him but they did not speak with each other.

31The grievor testified that she heard nothing about her complaint for many days. On November 29, 2010 she approached the two Correctional Officers who had been outside the health care office, Paul Johnstone and Joe Murphy. She asked them if they would submit incident reports. Mr. Johnstone had not yet done so and Mr. Murphy agreed to write another more fulsome report. She was disappointed in this because she felt that there was an “old boy’s code” at the jail. Later that day the grievor approached the Superintendent. Ms. Lefkowitz testified that she was very angry during this twenty five minute meeting and she told Ms. Rankin that it was “abhorrent” that incident reports had not been requested from the Correctional Officers who were in attendance that day. She again “beseeched” the Superintendent not to sweep this incident under the rug. She also told Ms. Rankin that she could not work under Mr. B. or even in the same building. She said she was frightened and traumatized. According to the grievor she felt that Ms. Rankin was not taking her complaint seriously. She filed her grievance a few days later.

32There was a further discussion between the grievor and Ms. Rankin after a co-worker approached her with certain personal information about Mr. B. It was during this conversation that the grievor was told that she could report directly to Ms. Rankin and not to Mr. B. and that he would not be allowed in the front of the building. This offer was not satisfactory to the grievor.

33Ms. Lefkowitz testified that there were times when Mr. B. was in the building and other employees would call her and tell her not to go downstairs. She was not sure if he was working but she was told that he was in the jail at least twice in December. There were also instances when Ms. Rankin would tell her that Mr. B. would be coming into the building but not into the jail proper.

34Ms. Lefkowitz said in her evidence that after this incident she felt progressively more vulnerable. She began to become very anxious at work and she began to lose her voice. She lost confidence in herself and ultimately no longer found joy in her work. She experienced insomnia and decided that she should seek counseling under the EAP. She continued seeing a counselor and her family physician until she felt she needed more help and began seeing a psychotherapist. She had seen him years earlier and thought he could be of help again. She said that she had never suffered from any significant mental health issues prior to November of 2010.

35Ms. Lefkowitz testified that she thinks this incident had such a major impact on her because she was always of the view that she could go to the Superintendent of the institution if there was any difficulty and she would be supported. After this incident proved that was not the case she found that she had to maneuver herself through the after effects of this incident. She said her “spirit was drained”. She found it difficult but she continued to work at the jail until its close.

36In cross-examination Ms. Lefkowitz was asked about attending the inmate who was sent to the hospital. She was asked if Mr. B. was in attendance when she examined the inmate. She agreed he was and also conceded that at no time did the inmate regain consciousness. She agreed that she had been aware of a past incident when Mr. B. had to “cut down” an inmate who had hung himself.

37The grievor was questioned about emergencies that might occur during Doctor’s Parade and how they are handled given that the phone is not answered. She said that it is a small jail and that if her attention was needed elsewhere she would be made aware by others.

38Ms. Lefkowitz said in cross-examination that Mr. Murphy told her that she was wanted at the sally-port because Mr. B. wanted her to speak with the inmate’s father. She was asked about whether she had understood that she was being given a direct order to attend at the sally-port. She said that it did not appear to her to be an urgent situation and she had to prioritize her work. Upon urging she agreed that she understood it was a demand but it was nothing that needed her immediate attention such as a cardiac arrest. She said that she thought it “was more of an assertive comment.” Later in her cross-examination she said that although she has not had much experience in this regard, she did not think it was an order because if the situation was a matter of “such big magnitude then I would expect the manager himself to come and approach me.” She also stated that she did not think it was an order because “it did not come directly from Mr. B.” She did recall that the first thing Mr. B. said to her upon arriving at the health care office was that when he tells her to do something he expects her to do it. She recalled “he must have said something about following an order”. She thought that he had spoken four sentences to her at that particular time.

39Ms. Lefkowitz maintained in her cross-examination that the father of the inmate was very upset despite her first written report, which said she “invited him to sit down.” She explained that this was an effort to settle him down and disarm the situation. She differed in her recall of the amount of time spent with the father in her cross-examination from that set out in her contemporaneous report. She conceded that there is an emergency bell and that she could have rung it but she did not even think of it because things happened so quickly.

40The grievor was asked in cross-examination why she thought that the four sentences that were yelled at her by Mr. B. during this exchange were worth seventy-five thousand dollars in damages. She replied that she had never been spoken to or yelled at by anyone in her life in this fashion not even by an inmate. She stated that his “words were very violent – he was off the wall”. She did not expect a colleague to treat her in such a way.

41Ms. Lefkowitz was asked in cross-examination about the impact on her from this situation. She agreed that she never missed a day of work and that she sought counseling only after three months had passed. Her family physician prescribed Ciprolex for her and it was not until a full year later that she sought the attention of a different family physician who practices psychotherapy. She returned to the same psychotherapist she had seen in approximately 1997 when she encountered a number of problems including the death of her parents.

42In cross-examination the grievor was asked about her first conversation with Superintendent Rankin. It was put to her that she was told that there are three ways to approach an incident such as this; a WDHP complaint; a grievance or a workplace violence prevention matter. The grievor said she had never heard the word “vexatious” before – that this had all been new to her. When pressed, she agreed Ms. Rankin did tell her of the three methods of proceeding. She also agreed that she was given a letter from Ms. Rankin dated January 7, 2012 after the filing of her grievance which stated, in part:

This grievance, and the concerns you raised with me verbally, will be accepted as a complaint under the Workplace Violence Prevention Policy and the Workplace Discrimination and Harassment Policy. Your grievance will proceed separately in accordance with the Collective Agreement.

When the events of November 18th, 2011 were brought to my attention, immediate steps were taken to gather information. Staff members involved in the incident, witnesses were required to submit occurrence reports, and I spoke verbally to many of them.

I have reviewed all of the information provided to evaluation the situation. While it is evident that Mr. B. behaved in an unprofessional and inappropriate manner, the behaviour you reported does not constitute a violation of either policy.

Please be advised that you have the Ministry’s full support in the workplace and I will be taking appropriate action to address the inappropriate incidents that occurred. As well, as an OPS employee, the services of the Employee Assistance Program are available.

43Dr. Dyke was called to give evidence. She has been a family physician for almost nineteen years with most of that time practicing in the Owen Sound area. She had been working at the Owen Sound Jail for about ten years until its closure. She attended at the jail weekly to deal with various health needs of the inmates. Her usual Doctor’s Parade day was Tuesday during the afternoon.

44On November 18, 2011 when she approached the jail she noticed an ambulance leaving and so when she got into the health care office she obtained a report from Ms. Lefkowitz. Dr. Dyke then called the emergency room of the hospital to give them her assessment. She recalled that while she was engaged in the call the office phone rang and both her and the grievor ignored it. Within moments Mr. B. threw open the door and pushed an elderly man carrying a briefcase into the room. Mr. B. was “screaming and yelling and quite aggressive”. She testified that she had never seen anything like this in a workplace and she thought it “was quite scary” because he was “so out of control”. When left alone in the health care office with the grievor and the inmate’s father she “felt very unnerved” because they did not know whom he was and he was “quite upset”. She had never known a civilian to be allowed into the back of the jail. He also yelled at the two of them. She “had no clue what he was doing.” Dr. Dyke said that she and the grievor “talked him down” and sent him off to the hospital to see the inmate.

45After he left she and the grievor were “just trying to collect ourselves” when Mr. B. returned and asked if parade was about to begin. She told him there would be no parade and he left. She cancelled parade because she was too upset to see patients that day. Dr. Dyke testified that the experience left her wondering if she should continue to work at the jail. She ultimately decided to continue because she knew that the jail would be closing within a short time.

46Dr. Dyke testified that she spoke to both the Head Nurse of the jail and to Superintendent Rankin. When Ms. Rankin called her she indicated that she had heard that the incident was “pretty bad” and Dr. Dyke confirmed that view to Ms. Rankin. She was asked if she wanted to put anything in writing about the matter but she did not do that.

47In cross-examination Dr. Dyke said that Mr. B. might not have pushed the other man into the room. She was not sure if there was any actual physical contact between the two but he opened the door.

48Joe Murphy and Paul Johnstone are Correctional Officers who were close to the health care office at the time of the incident. Mr. Johnstone was president of the Union from 2003 to 2009 and had been at the Owen Sound Jail since approximately 1991. He confirmed in his evidence that members of the public are never allowed into the back end or the secure areas of the jail. Further, all bags are to be left at the front or inspected in order to ensure there is no contraband that is allowed into the jail.

49Mr. Johnstone testified that he did not write an occurrence report about the November 18, 2010 incident because he was worried there would be repercussions if he complained about an Operational Manager. However, he was asked to write a report by Ms. Rankin and he did. His report stated, in part:

• I have been “requested” to submit a report on what I observed Thursday November 18, 2010. This is at this point 11 days after the incident. On the day in question I was working the rear of the jail along with Mr. Murphy and Mr. Cooney. ….
• Nurse Lefkowitz returned to the rear and Dr. Dyke arrived around 1445 hours. Mr. Murphy, Cooney and myself went to the second floor to commence Dr.’s parade. The second floor phone rang and Mr. Murphy answered. I did overhear the caller ask Mr. Murphy to send the nurse to the front door. I recall Mr. Murphy telling the caller that the nurse was meeting with the Dr. at the present. The call ended. The phone rang a second time. This caller did tell Mr. Murphy to order Nurse Lefkowitz to the front door. Mr. Murphy did tell the caller that if Mr. B. wanted the nurse to the front door he had better call himself and order her.
• I said to Mr. Murphy at that time “something will go down”.
• Moments later we did hear the A&D door open and someone enter the rear. A very loud crashing noise was heard as if someone were throwing A&D office furniture around. We then saw Mr. B. followed by an unknown male person carrying a large black valise coming up the stairs to the second floor.
• The nurse’s door was closed as the nurse and Dr. Dyke were in conversation. Mr. B. opened the door and screamed at Nurse Lefkowitz “when I order you to do something – you do it” followed by “we will chat later”.
• The unknown male was pushed into the nurse’s office and Mr. B. shut the door. This left the nurse, doctor and the unknown male alone in the office. Mr. Murphy and I looked at each other in disbelief, I had never seen anything like this in my 20 years employment here.
• We never had a conversation with Mr. B. about this as our experience when Mr. B. was like this was to allow him some time to calm down.
• The closed door meeting in the nurse’s office was about 20 minutes in duration. Mr. Murphy and myself were on the second floor for all this along with Mr. B. who was all the while extremely angry.
• We did follow the male party downstairs after the meeting at which time we did see one of the A&D chairs in the middle of the floor between A&D was sent (Mr. C. and I repaired the chair).
• Much information has come to light since the unknown male was at first identified as the father of an IM. The IM had said that the father was in fact her long time sexual abuser and of no blood relation whatsoever.
• In conversation with Nurse Lefkowitz the father’s valise did contain a “controlled” substance. Although anything could have been also in the valise or on his person.
• I see two separate issues here one being the breach of security by the access of the unknown male into the institution and the other being Mr. B.’s attitude in dealing with the nurse.
• Having been on the receiving end of a Mr. B. outburst myself I know how intimidating and upset the nurse felt. No one should be treated in this manner.

50Mr. Johnstone’s evidence was congruent with his occurrence report. Little new was added in his oral evidence but he emphasized that he was “aghast” when he saw Mr. B. bring a “citizen” into the secure area of the jail with an unchecked briefcase. He also made clear that Mr. B. was “extremely angry” with his “eyes bugged out” and “his face was red.” He said that if anger were to be measured on a scale of one to ten, Mr. B. was at level ten.

51In cross-examination, when asked about whether he saw Mr. B. actually throw any chairs he admitted he did not but one chair was damaged. He also said that the throwing of furniture was “out of character” for Mr. B.

52Mr. Johnstone was asked if it was clear that Mr. B. had ordered the grievor to go to the front of the jail. He said yes and he said that if it had been him he would have gone because when you are told to do something by a supervisor – you do it.

53Mr. Murphy has been a Correctional Officer since 1990. He was in attendance the day of the incident and wrote two reports on November 19 and 20, 2010. They said, in part:

• Whilst at my assigned post in the rear of the gaol, I was preparing for the doctor’s parade at about 1520. At this time I received a phone call on the phone outside the nurses’ office. It was CO Beagan who was relaying a message from Mr. B. telling me to tell the nurse that he required her at the front door of the gaol right now as an IM’s father had shown up with medication and her history.
• This message was passed to the nurse who was in conference with the doctor. It is my personal opinion that Nurse Lefkowitz was uncomfortable with this request and in fact Dr. Dyke suggested that the father go to the hospital. Before I had relayed this to Mr. B. I received another message this time through CO Arnold. It was at this point I asked CO Arnold to tell Mr. B. that he should contact the nurse himself. This was because I was uncomfortable with the position I was placed in.
• Myself, CO Johnstone and Cooney were on the 2nd floor of the gaol waiting to start doctor’s parade when there was an almighty crash from the ground floor followed by Mr. B. stomping up the stairs followed by a man in civilian clothes carrying a bag.
• Mr. B. appeared to be angry and furious as he proceeded to the nurse’s office when he opened the door said something to the nurse that I did not catch. He then allowed the man to enter and closed the door and stood outside glaring at everybody. I was totally at a loss as to what to say or do as I had never witnessed something like this.
• After a few minutes the man left the office mumbling about the gaol being 3rd world. He then proceeded down the stairs with Mr. B. Upon proceeding down the stairs we found the reason for the crash was a chair laying on the floor with the back off and bent. This was repaired by staff. A little while later the doctor left without doing doctor’s parade it was at this time that nurse Lefkowitz spoke to me with regards to the incident she informed at this time that the man claimed to be the father of the IM. The bag that he was carrying had contained her medication some of which was a narcotic, also at this time she asked me to come to a meeting with herself and Mr. B. which I did. At this time snippets of information have come out from the IM as regards to her so-called father as someone who sexually abused her.

54Mr. Murphy’s oral evidence was not dissimilar to his written reports. He testified that he was worried about possible vindictive repercussions due to writing his first report because he was complaining about a supervisor. His second report, which was more fulsome, was written at the request of the Superintendent.

55In his evidence Mr. Murphy confirmed that he received a call from another CO on the afternoon of November 18, 2010 telling him that Mr. B. wanted the grievor to attend at the sally-port. He said that he opened the closed door to the health care office and told Ms. Lefkowitz that Mr. B. wanted her at the front door. Dr. Dyke said that the father would be better if he attended at the hospital but the grievor only acknowledged the request. There was a second phone call but this time Mr. Murphy told the CO at the other end of the phone that he was being put into an awkward situation and if Mr. B. wanted to give the grievor an order he should do so himself. Almost immediately – and before he could relay the second call to the grievor - he heard a crash from downstairs where later the broken chair was found. Mr. B. and the inmate’s father came up the stairs and approached the Health Unit. Mr. B. opened the door to the health care office and said something to the grievor that Mr. Murphy did not hear. After Mr. B. put the man into the office and closed the door Mr. Murphy was confused and a bit scared. He testified that he thought Mr. B. “might take a swing” at him. He said that in all of his years as a Correctional Officer he had never seen a manager act in this fashion.

56Mr. Murphy testified that after this incident he accompanied the grievor to Mr. B.’s office. He said that Mr. B. was still angry and “was not nice” to the grievor. He spoke loudly and his face was still flushed. Mr. Murphy noticed that the grievor was close to tears and appeared shaken. He testified that it was a short meeting lasting only five to ten minutes.

57Three other occurrence reports from other Correctional Officers were filed. Correctional Officer Arnold wrote the following, in part, in his November 18, 2010 report:

On Thursday November 18, 2010 about 1515 hours at the jail in the Runner’s (sic) office I saw that Dr. Dyke has just arrived and was talking with Registered Nurse Marsha Lefkowitz. About 1520 hours I escorted them to the rear of the jail for doctor’s parade. About the same time I heard Mr. B. enter the sally-port.

When I returned to the Control Module area I heard him request the Nurse to the sally-port. CO Beagan made that call. About a minute later, he again requested the Nurse to the sally-port. I radioed the rear of the jail and informed them of the request. CO Murphy responded on the radio “to call 202”. I then heard Mr. B. state that “he is ordering the Nurse to his location.” I informed CO Murphy that Mr. B. was in the sally-port and has ordered the Nurse to his location.

Then he ordered the sally-port open and he escorted a civilian man into the jail and ordered me to allow him into the rear of the jail. I complied. I found out later that the visitor was the father of an IM who had just departed for the hospital and had pertinent information about her.

58Correctional Officer Beagan wrote the following in his Incident Report:

Approximately 1507 I took control of the module. Approximately 1530 hours the father of the IM came to the jail. He requested to see the nurse regarding medication that his daughter needed for a dental infection. I contacted Mr. B. to speak with this man. Mr. B. went outside and spoke with the man. Mr. B. then entered the sally-port and asked me to call Nurse Lefkowitz and have her come to the front of the jail immediately. I called the nurse’s office and received no answer. I then called extension 202 as I knew that Nurse Lefkowitz was in her office and Dr. Dyke was with her. I informed Officer Murphy that the nurse was required at the front door by Mr. B. I relayed this message to Mr. B.

Mr. B. told me to call the nurse back and tell her that was an order, not a request. I once again tried to call the nurse whom would not answer her phone. I called and spoke with Mr. Murphy who told me flatly that the nurse had said “NO”. I relayed this to Mr. B. Mr. B. who was understandably upset, demanded that the door be opened and he proceeded to the rear of the jail to speak with the nurse.

59Correctional Officer Cooney wrote the following in his report dated December 14, 2010:

Please note that I am not sure the precise order of events – however while waiting on the steps Officer Murphy answered the phone on the 2nd floor. He was to pass on the message to have the nurse contact Mr. B. at the front of the jail. I believe the nurse responded that she wished not to get involved and this was passed on. I believe a second phone call came and again Officer Murphy answered it asking him to demand that the nurse go to the front of the jail. Shortly after this I believe it was Officer Arnold who came over the radio advising that Mr. B. was now “ordering” the nurse to the front of the jail. This radio request may have been made twice.

After a short delay, a chair could be heard being pushed out of the way, and Mr. B. arrived on the 2nd floor with a person who I believed was an IM’s father. Mr. B. led his party into the health care unit and then backed onto the 2nd floor. Mr. B. appeared rather frustrated. I gleaned from Mr. B. that this person had important medical information on the IM who had just left with an ambulance. This party stayed for what seemed a couple minutes then was escorted out of the building by Mr. B.

I do remember feeling that was quite uncanny that this party should arrive just minutes after the IM was wheeled out. As we were not sure of the IM’s condition it is quite understandable that this party may have had information that could aide in the preservation of life (i.e. what street drugs, meds she might be on) and, I might add, time is not an afforded luxury during an emergency.

60The final witness for the Union was the grievor’s psychotherapist, Dr. John Lindsay. He is a general practitioner whose practice has been exclusively in the area of psychotherapy since 1980. He wrote a report dated January 21, 2013 setting out a history and description of his association with and treatment of the grievor. Much of this information is highly sensitive and in my view, there is no need to set it out in full but some detail is necessary. His oral evidence was congruent with his written report.

61Dr. Lindsay first treated the grievor between April of 2003 and December of 2004. He testified that at that time he diagnosed Ms. Lefkowitz with complex Post Traumatic Stress Disorder. There were a number of events in her life that caused significant stress and anxiety. He treated her until such time as she thought she was ready to end her therapy.

62Dr. Lindsay next saw the grievor in December of 2011. At this time she reported to him that she was experiencing “extreme anxiety”, was having difficulty concentrating and was fearful of leaving her home. The grievor told Dr. Lindsay that her symptoms had been brought on by the incident of November 18, 2010.

63In his report Dr. Lindsay made the following conclusions:

The anxiety, the depressive symptoms, the hypervigilence, the insomnia, the low self-esteem, the diminishment of her own self, coupled with the trigger of this incident at the jail, are all part of the Spectrum that describes Marsha’s Post Traumatic Stress Disorder. An individual with Post Traumatic Stress Disorder in their past is vulnerable to having that disorder triggered if they are exposed to another traumatic event. For Marsha, that other traumatic event was this situation we have been describing at the jail.

The prognosis is good for Marsha to regain functionality and return to employment that is rewarding for her. She is motivated and involved in her own recovery.

64In his evidence Dr. Lindsay said that complex PTSD is the result of chronic stressful situations with which the individual cannot cope. This syndrome is composed of three areas, re-experiencing symptoms, avoidance symptoms and activation symptoms.

65Dr. Lindsay said in his evidence in chief that the grievor returned to his care at the suggestion of the grievor’s counsel. Ms. Lefkowitz had been attempting to deal with her anxiety and insomnia on her own and with some assistance from a therapist through the Employer’s EAP. Dr. Lindsay stated that he understood that, at least in part, Ms. Lefkowitz sought him out because she needed “a medical report to justify her going ahead with this grievance”. In any event, when he saw her in 2011 her symptoms “were quite a lot more severe”. For example, she was afraid of Mr. B. even when she was in her own home. She would stay awake most of the night because she felt unsafe.

66Since her first return visit in 2011 Dr. Lindsay has been treating Ms. Lefkowitz for one and a half hours per week. The course of her treatment has been “up and down”. Her symptoms worsen any time she is involved with anything having to do with this matter. He thought that she has not improved and that the point of not needing further treatment is not yet in sight.

67In cross-examination Dr. Lindsay conceded that he had not written in his clinical notes that the grievor’s PTSD was complex in his first treatment of her in 2003. However, he was now of the view that her PTSD was complex even at that point. He acknowledged that the first time he wrote that her condition was “complex” was when he was being prepared to give evidence in these proceedings. He rejected the contention that he “ramped up” the diagnosis for this proceeding. The main difference between the two is that PTSD is the result of a narrow incident while complex PTSD is “more chronic over time”.

68Dr. Lindsay agreed in cross-examination that other factors were also causing the grievor stress when she first returned for treatment in 2011 including this impending litigation and the loss of her job as the result of the jail closing.

69Dr. Lindsay was asked about the grievor’s complaint that the Employer did not respond properly to the incident of November 18, 2011. He agreed that people with complex PTSD sometimes respond to situation based more upon their perception of events rather than on what really occurred. Incidents that others might see as “no big deal” can cause a response to those with complex PTSD “because their brain is primed to be hyper-aware of the stimuli”.

70Dr. Lindsay was reminded in his cross-examination that Ms. Lefkowitz missed no time at work as the result of this hearing. He said that such behaviour was not uncommon and that it might be one of the reasons why she is inhibited at this point. He thought she might have gone into a self-preservation mode as she has done in the past. She “hardened herself” and attempted to get through without aid but by doing so she becomes “a bit of an automaton”.

71Mr. B. was the only Employer witness called to give evidence in this proceeding. In many ways, his evidence was not at odds with that of others. Mr. B. stated November 18th, 2010 had been a difficult day. A health and safety search was undertaken and drugs and a needle were found. Additionally, there was a health crisis with one of the female inmates. It was thought that she might have taken an overdose and was sent to the emergency room of the hospital by ambulance.

72Mr. B. testified that shortly after the IM was sent to the hospital Dr. Dyke appeared for her medical parade and went upstairs. A few minutes later a man appeared at the front door claiming to be the father of the IM who was just sent to the hospital. According to Mr. B. this man claimed to have important medical information about his daughter.

73Mr. B. asked one of the Correctional Officers to telephone the health care office and ask Ms. Lefkowitz to attend at the sally-port. There was no answer of the health care office phone. Another call was made but Ms. Lefkowitz refused to attend at the front of the jail even after a direct order was given.

74When it became apparent that Ms. Lefkowitz was not going to attend at the sally-port Mr. B. said he became annoyed and decided to take the IM’s father to the health care office in order to pass on what might be important medical information. He testified that he ordered the A & D doors to be opened and took the IM’s father up the stairs without searching his person or his bag. On his way up the stairs he kicked a chair out of the way. It tipped over and one of the legs fell off which had happened previously. When he got to the health care office he put the IM’s father inside and told Ms. Lefkowitz to take his information. He said he did not recall if the door was open but he waited until they had finished the discussion and then escorted him out of the building. Before leaving he told Ms. Lefkowitz that he wanted a meeting and that she could bring a Union representative with her. He was then told that there would be no Doctor’s Parade that day.

75Mr. B. testified that he was very frustrated during this incident. He denied that he yelled or lost control at any time. He was stern but did not yell. He simply gave Ms. Lefkowitz a reasonable order to attend at the front door and she refused. He acted out of character including a breach of the procedure for searching visitors. He was concerned about making sure that potentially vital information reach the health care office as quickly as possible but he conceded that is not an excuse for breaking these rules.

76Mr. B said that later in the shift he met with Ms. Lefkowitz and a Union representative when he informed her that she refused a direct order and that the incident would be reported to the Superintendent.

77Before leaving that day he attempted to telephone Ms. Rankin. He told her that he had acted inappropriately and that there would be a need to investigate. He was told that she would look into it and there would be a meeting on Friday.

78He stated that in hindsight he realizes that what he did was wrong. In cross- examination he acknowledged that he did not remain “calm or level” but he was not on a rant. He did not “hoot and holler”. He was “frustrated” but not “abusive” and he was not in an “out of control rage.”

79Mr. B. was never instructed to have no contact with the grievor. He has been absent from the workplace since a few days after this incident. He has been on a medical leave and is presently in receipt of Long Term Income Protection. He understands that at the point he returns to work he will be sanctioned.

80Mr. B. wrote an incident report on the day of the incident. It stated, in part:

Shortly after the IM had been transported to the hospital at approximately 1530 hours her father attended the jail with medication he claimed to belong to his daughter (during our conversation he disclosed that she was his adoptive daughter) for her teeth, he further went on to say that she suffered from fetal alcohol syndrome and that this explained some of her withdrawn behaviour. At this point I was in the sally-port talking to the father and asked Control Officer M. Beagan to ask the nurse to come down from her office to take a medical report from this girl’s father. Dr. Dyke had arrived at the jail for doctor’s parade although it had not started yet.

Mr. Beagan tried phoning the nurse’s office, the phone was not answered. Officer L. Arnold radioed the rear, Officer Joe Murphy radioed in return to phone 202. At this point I changed my request for the Nurse to come to the sally-port to an order, which was disobeyed by Nurse Lefkowitz.

At this point because I felt that he had information that was pertinent to her treatment at the jail and at the time of admit very little was shared with staff. I escorted the father to the nurse’s office so that he could transfer his information to them in person as he had intended. I will at this time {sic} out of frustration I did act unprofessional.

I did inform Nurse M. Lefkowitz that I would like to see her after and that she should bring union representation. At approx. 1700 Local Union President J. Murphy and Nurse and I met in the Classification Office. I asked the Nurse why she had refused my order to come to the sally-port, she responded that she didn’t think that the nursing department had to answer to me, that she didn’t want the liability because she did not know what she was going to get into, that she needed time to prepare.

I simply informed her that she is expected to follow direct orders where it is an operational matter. Time to prepare and knowing what we are getting into is not something that we get all the time.

I did inform Mrs. Lefkowitz is for her to follow direct orders when given as long as they are not unlawful or to do with the medical care of an inmate. Ms. Lefkowitz got upset and left the room.

81Mr. B. received a letter dated December 6, 2010 from Ms. Rankin that stated:

It has come my attention that you were involved in a serious incident that occurred on Thursday November 18, 2010. You are required to attend a meeting on December 13, 2010 in the Superintendent’s office at 10:00 so that you may respond to the following allegations and provide any mitigating circumstances.

• You violated the Statement of Ethical Principles.
• You violated Owen Sound Jail Superintendent’s Directive 07/03 and security protocol when you improperly admitted a visitor into the secure area of the institution.
• You violated the AD’s regarding written reports.

Please be advised that if these allegations are substantiated you may be subject to discipline as a result. As such, you are encouraged to make arrangements to bring a support person to the meeting.

If you fail to attend the meeting it will proceed in your absence and a decision regarding discipline will be made.

82Mr. B. has yet to return to work and so has not had the allegation meeting considered in this December 2010 letter. He was sent a letter dated December 30, 2010 from Ms. Rankin that stated:

On December 06, 2010 you were sent a letter regarding a series of allegations about your behaviour in the workplace on November 18, 2010. Subsequent to the letter being sent, and prior to the meeting being held, you commenced a sick leave. As such, these allegations will be held in abeyance until such time as you are able to return to the workplace and a meeting on the subject can be held.

UNION SUBMSSIONS

83Mr. del Junco, for the Union, suggested that the matter at hand is not difficult to decide. Indeed, it was urged that this case is tantamount to “nolo contendere” because there does not appear to be any significant dispute about the salient facts.

84A portion of the Union’s submissions included the evidence that I have now determined not to admit. Accordingly, I will not set out those aspects of the Union’s arguments.

85The standard of proof for this Board to apply is a balance of probabilities, the Union asserted. And when that standard is applied there can be no doubt that the Union has discharged its onus and the grievance should be allowed. There was significant evidence from various officers and Dr. Dyke that made very clear that on November 18, 2010 Mr. B. engaged in gross misconduct in the workplace that put both the grievor and Dr. Dyke at significant risk of violence.

86The Union argued that the misconduct of Mr. B. took the form of two violent outbursts of temper. According to the evidence of a number of bargaining unit members, his behaviour was so intense and threatening that it produced apprehension of physical violence because Mr. B. was out of control. Indeed, it was suggested that his behaviour was so violent and threatening so as to come within the meaning of assault under the Criminal Code. 86.

87It was the Union contention that Mr. B. admitted only that evidence that it was impossible for him to deny. He conceded only that he allowed the father into the institution contrary to the rules and that he kicked a chair. He denied virtually everything else. He also said that he spoke firmly but did not accept that he was out of control. His evidence is at odds with every other witness and therefore must be rejected by this Board. The Union’s evidence that Mr. B. violated the most fundamental of safety rules by allowing the father into the building without being checked by security and his fury at not receiving an answer from the Health Unit leads to a finding for the grievor. Mr. B. put the grievor at considerable risk of physical harm and then exacerbated his totally inappropriate conduct by berating her in front of coworkers leaving her feeling humiliated and overwhelmed. These feelings of shock and trauma were significantly increased when the grievor found Mr. B. in the workplace following her complaint to the Superintendent. When faced with no action taken by management to investigate and remedy the situation, Ms. Lefkowitz filed her grievance.

88Even when the Employer acquiesced that something had to be done, its actions were insufficient, according to the Union. The grievor was told that from time to time she would encounter and have to work with Mr. B. in the future. This lack of care on the part of the Employer triggered a series of symptoms that have continued for months and years. Her physician stated that the recurrence of complex Post Traumatic Stress Disorder brought about severe anxiety, loss of confidence and a sense of dread. The grievor testified that she became inarticulate and suffered insomnia for months. These ongoing symptoms have not yet resolved and there can be no doubt that there has been significant harm suffered as the result of Mr. B.’s actions and the Employer’s continued failure to manage his misconduct.

89By way of remedy the Union requested:

• Fifty thousand dollars for loss of dignity;
• Twenty-five thousand dollars for punitive damages;
• A Board order for the Employer to apologize to the grievor;
• An order that Mr. B. is not to be allowed to return to the workplace until he provides medical evidence that he is not a risk to others in the workplace;
• An order that the Employer must provide to the Union sixty days notice that Mr. B. is going to return to the workplace, such notice to include the particulars of the evidence it relied upon in allowing the return to work.

90The Union urged that the Employer has breached sections 5 and 7 of the Ontario Human Rights Code as well as Article 3 of the Collective Agreement. There has also been a violation of section 25.2 of the Occupational Health and Safety Act and Bill 168. The Employer’s own policies regarding workplace violence were not followed. This fundamental abrogation of Employer’s duties and responsibilities to protect the grievor underscore the need for significant compensatory damages.

91The Union relied upon Re Greater Toronto Airport Authority and Public Service Alliance of Canada, Local 0004 (2001), 2011 ONSC 487, 202 L.A.C. (4th) 205; Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (Ranger Grievance) GSB#2002-2375 (Leighton); R. V. City of Sault Ste. Marie 1978 CanLII 11 (SCC), [1978] S.C.J. No. 59; Re The Crown in Right of Ontario (Ministry of Public Safety and Security) and OPSEU (Patterson), GSB#2001-0925 (Leighton); and Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (Tardiel) GSB#2005-1443 (Albertyn).

EMPLOYER SUBMISSIONS

92Mr. Dailleboust, for the Employer began by asserting that Mr. B.’s credibility cannot now be challenged. The time and place for any credibility issues regarding his evidence was during the course of his cross-examination. The Union failed to do that and it cannot now attempt to have this Board find he was less than credible.

93It was agreed by the Employer that many of the central facts of this case regarding the incident that took place on November 18, 2011 are not in dispute. It was conceded that Mr. B. allowed a civilian into the back of the jail contrary to Ministry policy. But the Employer never condoned those actions. The question for this Board to address was whether the Employer could have reasonably foreseen this incident to occur. Further, on an objective basis, was there was a violation of Article 9 of the Collective Agreement?

94The Employer said that the evidence revealed that Mr. B. contacted the superintendent shortly after the incident of November 18, 2013 and informed her of what took place. Contrary to the assertions of the Union, the superintendent took the matter seriously and met with the grievor on the following day. She offered EAP assistance and offered a direct reporting scheme so as to minimize the grievor’s contact with Mr. B. Further, contrary to the grievor’s evidence, the superintendent did not say that there had to be three occurrence reports prior to a WDHP complaint being accepted. Therefore, the Employer did comply with its own policies. In this instance, the perpetrator of the misconduct admitted his conduct and therefore there was no need for an investigation – or a suspension of Mr. B while it was undertaken.

95The Employer noted that notwithstanding the grievor’s claim for punitive and loss of dignity damages, the evidence was clear that she did not miss a moment of work as the result of this incident. Indeed, she did not even seek medical attention until some thirteen months later. The Union urged that this is a horrendous incident for the grievor. The evidence does not support such a contention. Dr. Lindsay’s evidence revealed that the grievor needed to see him to advance her grievance and therefore it is difficult – if not impossible – to determine what, if any, harm was caused by this incident. To be clear, the grievor did not attend at Dr. Lindsay’s office until after the Employer raised the matter of no harm during the course of this hearing. When Dr. Lindsay was asked if the grievor’s mental health issues were certainly as a result of this incident he conceded that “pinning down” the cause is not possible and that other matters such as the stress of litigation may well be contributing factors.

96According to Mr. Dailleboust, the Employer attempted to take quick action after this incident. It sent Mr. B. a notice to attend at an allegation meeting shortly after he reported his actions. Unfortunately this meeting has yet to occur because he went off on medical leave and is on LTIP as of the final day of this hearing. He will not return to the jail because it is closed.

97The Employer contended that in order for the Union to be successful in this matter, it had to show that the Employer could have foreseen this incident and that simply has not been shown. The Employer could not have known that an emotional relative would appear at the front of the jail or that the grievor would refuse an order to speak with that relative. Certainly the Employer had no way of knowing that Mr. B. would violate several standing policies and allow a civilian to enter the back of the jail. It could not prevent the unforeseen. In this regard it should be recalled that one of the Correctional Officer’s incident report stated that he had never seen Mr. B. react in such a fashion. While some of the witnesses suggested that they were all afraid that at some point Mr. B. would engage in such an emotional outburst, the contemporaneous evidence of one incident report suggested that his actions were out of character. Further, the evidence of another Correctional Officer standing outside of the door of the health office revealed that he could not make out what was being said.

98It is trite to say, according to the Employer, that the threat of violence is present in correctional facilities. Although many measures are taken to preclude such an occurrence, the possibility is ever present. This should be taken into account in the determination of this matter.

99The Employer doubted the grievor’s evidence that she was frightened of a physical threat from Mr. B. during this incident. He made no attempt to make contact with her. He did not threaten her. He was angry but the grievor’s perception and recall may have been somewhat tainted by her pre-existing PTSD. The evidence was that Mr. B. told the grievor that he gave her an order and he expected her to follow it. Such a comment from a manager - even if it was delivered in a raised voice – does not sound like a precursor to violence. The evidence of Dr. Dyke should be taken into account in this regard. Her testimony was fair and unbiased. She was present throughout the incident. She testified that she did not feel harassed or threatened. Further, she did not complain about the incident after the fact. That evidence is telling it was submitted.

100The Employer also contended the jurisprudence that applies in this instance is the “bad boss” case law. It has been found that there must be an objective assessment of the facts. This case does not reveal causation between the incident and the grievor’s medical issues. In the absence of an actionable wrong, no damages should be awarded.

101Finally, regarding the Union’s request that an order be made regarding the return to work of Mr. B., the Employer urged that no order be made. In accordance with its usual policies and procedures, the Employer will ensure that Mr. B. is medically fit to return to work. In closing the Employer stated that it regretted that the incident occurred. However, it could not have foreseen this and cannot be found to be responsible for the impact on the grievor.

102In reply the Union took issue with the Employer’s claim that it could not have foreseen this incident. The Union is not obliged to prove that this precise set of facts ought to have been anticipated by the Employer.

103Regarding the Employer’s position about a causal link between the incident and the medical impact on the grievor it must be remembered that the grievor both sought help from her family practitioner and the Employee Assistance Program. While it was some time before she returned to her psychotherapist, it is clear that she suffered as a direct result of Mr. B.’s treatment. There have been violations of the grievor’s right to health and safety in the workplace and her rights under Section 25.2 of Bill 168. The Employer did not take all reasonable precautions.

104Mr. del Junco argued that the evidence of Dr. Dyke is not the standard that the Board should consider. She was not an employee and not the subject of Mr. B.’s rage She cancelled the medical parade and left. The grievor was more vulnerable and she could not stand up to Mr. B. For the grievor, leaving the workplace was not an option.

105The Union reiterated its view that there should be some notice given when Mr. B. returns to a workplace. While there might be some concern regarding his right to privacy, it was urged that this Board could fashion a remedy that would satisfy the needs of both Mr. B. and the next workplace to which he is assigned.

DECISION

106Contrary to the contention of the Union in its opening statement, I am of the view that this is not a case about gender. Instead, the matter at hand is more aptly characterized as a “bad boss” case.

107As stated at the outset of this decision, I am of the view that the first issue for this Board to decide is whether the grievor was “verbally assaulted” by Mr. B. on November 18, 2011, as alleged in her grievance. In my view, there can be not a scintilla of doubt that this question must be answered in the affirmative.

108It makes sense to first turn to what might have led to the incident in the first instance. The evidence established that Mr. B. attempted at least twice to have the grievor attend at the front door to converse with a family member of the inmate who had very recently been sent to the hospital in an unconscious or non-responsive state. A phone call was made to the health care office for this purpose and it was ignored by the grievor. Following the unsuccessful phone call to the health care office Mr. B. told a CO to relay the message that the grievor was to attend at the front door. The evidence was somewhat inconsistent on this point as to whether one or two messages were relayed to the grievor in this regard. It matters not because the grievor conceded in her evidence that she heard and understood that she was being ordered to attend at the sally-port to have a discussion with a family member of the inmate who had been transferred to the hospital. However, she thought it not necessary to comply because the Doctor’s Parade was underway and the request was not a matter of urgency. She justified her non-compliance with a variety of reasons such as her concerns that she would be put in a professionally compromising position regarding confidential medical information of an inmate in her care. Mr. B. testified that he thought she did not comply because she simply didn’t like to take orders from a person who was not a health care professional. Whatever the reason, according to the preponderance of evidence her failure to comply infuriated Mr. B. in the extreme.

109The evidence of the grievor, the Correctional Officers and Dr. Dyke was clear and consistent that Mr. B. was enraged. I accept that he was so angry that on his way to the health care office he kicked and broke a chair. I accept that he screamed at the grievor in front of a member of the public and her coworkers. I also find that contrary to policy, health and safety and simple common sense that Mr. B. allowed a member of the public to enter the back of the jail with a briefcase that had not been searched. The potential risk that he placed the grievor and Dr. Dyke in is – quite frankly – breathtaking. It is a matter of colossal good luck that the man was not carrying some instrument of harm in his bag. The evidence was clear that this man – an unknown member of the public - was exhibiting angry behaviour himself and had made his annoyance known at the front door. Why such a person would be allowed into – if not shoved into – the small health care office by the highest ranking member of management present at the jail is almost beyond comprehension. That he was left alone with the grievor and Dr. Dyke behind a closed door is shocking.

110The Correctional Officers who gave evidence spoke of “being aghast” and “shocked” at the fact that Mr. B. would allow a member of the public into the jail – let alone with an unchecked bag. I found that evidence to be credible and not motivated by malice. Another referred to never having seen such a breach of security in his many years within the Ministry. This evidence was not contradicted and went unchallenged by the Employer. It weighs heavily into this decision.

111Mr. B. repeatedly stated in both his evidence in chief and his cross-examination that he did not “hoot and holler”, yell or scream. He stated that he was not out of control – merely firm. He acknowledged that he was annoyed but thought his feelings were justified – at least to a certain extent - given that he had issued a direct order to a subordinate that was ignored. Indeed, it was apparent from his demeanor and his testimony that Mr. B. has convinced himself that his behaviour on November 18, 2010 was not of the sort that would cause this level of attention let alone litigation. He seemed to sincerely hold that view. However, that belief is not grounded in reality. To be clear, he certainly did not convince this Board that he was “merely firm”. To the contrary, I find that he was out of control. In making such a finding I considered the evidence of not only the Correctional Officers and the grievor but also that of Dr. Dyke who testified that

Mr. B.’s violent and demeaning treatment of the grievor caused her to seriously examine whether she wanted to continue her association with the jail.

112Unfortunately, the verbal assault on the grievor did not end in the health care office. Ms. Lefkowitz was ordered to attend at Mr. B.’s office after Doctor’s Parade and she attended with Mr. Murphy. There she was subjected to further misconduct. Mr. Murphy said that Mr. B.’s face was still flushed and that he was still raising his voice in this exchange. While Mr. B. might have wanted to make clear that the grievor should follow a lawful order when it is given, his message was obscured by its inappropriate method of delivery.

113This evidence revealed that Mr. B. continued to be out of control. He could have taken the time between his encounter with the grievor in the health care office and the meeting in his office to regain his composure. He did not. It was apparent to Mr. Murphy that the grievor was close to tears and not coping well during this meeting. It should have been equally clear to Mr. B. He could have and should have had some inkling of the affect he was having on the grievor and postponed the meeting until such time as he was calm.

114The grievance also alleged a verbal assault by a member of the public. I am not convinced that this was the case. I accept that the man was angry and was venting his frustration upon Dr. Dyke and the grievor. But I did not hear evidence that would lead me to find that this confrontation was a verbal assault upon Ms. Lefkowitz. However, this finding should provide no comfort to the Employer. As noted earlier, it was blind luck that this man did not hurt either the grievor or Dr. Dyke or both. Not only did Mr. B. do nothing to ensure their safety – he alone put them in harm’s way. He endangered their safety by deliberate deed - not through inadvertence.

115This incident happened very shortly after another stressful situation, that is, the discovery and treatment of an unconscious inmate. No doubt this incident caused angst for all involved including Mr. B. It may be for this reason that Mr. B. underwent a serious of extremely poor decisions and ill-advised actions. However, it does not mitigate how he treated Ms. Lefkowitz.

116I accept that November 18, 2011 was a highly difficult day for the grievor as a result of Mr. B.’s actions and verbal abuse. I also understand why she felt the Employer did not take sufficient action after the filing of her complaint. However, I cannot find that nothing was done.

117It is apparent from the documentation and the evidence that within a few days the superintendent asked those in attendance – including Dr. Dyke - for occurrence reports. Some, like Mr. Johnstone and Dr. Dyke did not comply immediately. Dr. Dyke never did provide the Employer with documentation.

118It is also clear from the evidence of Mr. B. that he left the workplace for medical reasons shortly after this incident and has yet to return. He has been formally notified that there are allegations and he will likely be subject to discipline as the result of his actions. While it would have been preferable if every effort were made to ensure that the grievor did not again see or work with Mr. B. following this incident, I cannot find that the Employer ignored or failed to act on the grievor’s complaints within a reasonable period of time.

119I am buttressed in this view by the specific allegations put to Mr. B. in his notice of an allegation letter sent on December 6, 2010. There was sufficient investigation undertaken to put the Employer in a position where it informed Mr. B. that he was accused of the following allegations:

• You violated the Statement of Ethical Principles.
• You violated Owen Sound Jail Superintendent’s Directive 07/03 and security protocol when you improperly admitted a visitor into the secure area of the institution.
• You violated the AD’s regarding written reports.

120The allegation letter to Mr. B. was written less than four weeks following the incident. I cannot find that the Employer took no action following the grievor’s complaints.

121Taking all of the evidence into account I find that:

• The grievor was verbally abused by Mr. B. on two separate occasions on November 18, 2010;
• The grievor’s health and safety rights were violated when Mr. B. allowed an angry member of the public with an unsearched briefcase into the health care office of jail
• The grievor’s health and safety rights were violated when – as the result of Mr. B.’s actions - she was virtually left alone with an unsearched and angry member of the public.

122The Union has suggested that a significant amount of money should be awarded in damages for the assault and for the humiliation suffered by Ms. Lefkowitz as the result of the Employer’s failure to keep the grievor safe on November 18, 2010 and for its failure to ensure the grievor’s safety after the incident.

123The Employer argued that for this Board to make an order for damages there must be a serious illness and it was suggested that the evidence does not substantiate such a finding. I disagree.

124As noted in Re MOH and OPSEU (Press) (supra), this Board has accepted that damages are an appropriate remedy when a breach of article 9.1 has been established. It was said by Vice Chair Mikus, at page 44:

Where an individual is claiming harm, as in the instant case, he must establish direct causation supported by medical evidence, between the employee’s symptoms and employer’s practices.

125In this case, I accept that the evidence of Dr. Lindsay establishes a direct causation between the grievor’s medical issues and the incident of November 18, 2010. The Employer suggested that Ms. Lefkowitz did not seek any medical attention until she needed a report for the purposes of this litigation. I do not agree with that characterization of the evidence. The grievor sought help through a therapist provided by the Employee Assistance Program and was receiving care from her general practitioner following November 18, 2010. While it may well be that she returned to the care of Dr. Lindsay at the suggestion of Mr. del Junco, it was clear from Dr. Lindsay’s evidence that Ms. Lefkowitz was suffering Complex Post Traumatic Stress Syndrome as the result of all that occurred on and following November 18, 2010. Further, Dr. Lindsay’s explanation regarding the fact that the grievor did not miss work – that is to say she did not go on a medical leave – following this incident is not determinative. I accept his medical view that she was trying to “suck it up” and cope herself and that perhaps those efforts have been to her overall detriment.

126At the time Dr. Lindsay gave evidence before this Board, he had been treating the grievor for over a year for approximately one and a half hours per week. It is difficult to reconcile that such treatment would be ongoing if the only point in her returning to see Dr. Lindsay were to obtain a medical report.

127The Employer also suggested that in order for this Board to make an award of damages it must be found that it could have foreseen this incident and that has not been proven. This assertion would have much more attraction in different fact situations. For all intents and purposes, on November 18, 2010 Mr. B. was the Employer. He was the highest ranking officer at the jail and it was as a direct result of his actions that the grievor’s health and safety was put at risk. He verbally assaulted the grievor and then closed her in a room with an unsearched member of the public who was carrying a briefcase. I cannot accept that the Employer has no responsibility and that no damages are owing because it could not foresee this incident. The fact that the violation of Article 9.1 occurred on a particular day rather than over months or years is a matter to take into account when determining quantum of damages not whether they should be awarded in the first instance.

128The Employer reminded the Board – if and when it considered a damage award appropriate – that jails are by their very nature potentially unsafe workplaces. I cannot accept this as a factor to take into account in determining a damage award.

129Most of the arbitral jurisprudence relied upon by the parties refers to violations of health and safety as the result of a course of conduct. I have found that this grievance is limited to the incidents of November 18, 2010 and thereafter. Accordingly, although some general principles set out in the case law provided has been of assistance, it does not address a situation such as the matter at hand. Indeed, I think it is fair to say that the facts of this case are unique.

130The Union asked the Board to order the Employer to apologize to the grievor. I will not make such an order although it is regrettable that an apology has not been offered to date. An apology should be a bona fide acknowledgement and statement of regret. An order to give an apology would render the sincerity questionable to say the least. It would be a hollow remedy that serves no useful purpose. Having said that, it is noted that very shortly after the incident the grievor was advised by Ms. Rankin that she had the Employer’s “full support”.

131I also will not order that the Union be notified if and when Mr. B. returns to the workplace.

132Having made these findings I remit the amount of damages back to the parties. I would hope that the parties would be able to agree on an appropriate amount of damages for Ms. Lefkowitz knowing of the Board’s findings. It may be helpful for the parties to know that the Union’s request for seventy-five thousand dollars and the Employer’s view that no damages are owing are both positions that I firmly reject.

133In the event that there is no agreement after forty-five days, I will issue a supplementary award setting out the damage amount with no further reasons within a week of being informed that no agreement has been reached.

134The grievance is there by upheld.