GSB#2010-2489

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Grievor)

Union

• and -

The Crown in Right of Ontario

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Katherine Ferreira Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

HEARING CONFERENCE CALLS

November 23, 2011; January 30, May 18, 2012; April 9 & 25, May 9, June 3, 2013 September 9, October 27, 2011; March 27, 2012; April 23, May 22 & 28, June 4, 2014

FURTHER SUBMISSIONS

June 23 & 26, 2014

Decision

1Subsequent to the conclusion of the hearing into this grievance there was discussion between the parties and the Board regarding the desirability of making this decision anonymous. It was ultimately decided that due to the highly sensitive nature of some of the evidence received in this matter it makes good labour relations sense to do so. Accordingly, all names and geographical references will be altered. Further, the work performed in the workplace will be described in a generalized fashion.

2There are two fundamental disputes arising out of the filing of this grievance. This decision deals with the allegations of harassment and bullying. The second aspect contemplated by this grievance is the subject of a separate decision as agreed by the parties.

3The grievor will be referred to as Mary Brown. All other witnesses or employees referred to in this decision will also have pseudonyms. Mr. Watts is the grievor’s immediate supervisor and Ms. Graham oversees the department.

4The anonymizing of this decision has made the task of writing somewhat more complex. Attempting to strike the appropriate balance between revealing extremely personal information and setting out sufficient evidence to understand the nature of this dispute has proved challenging. I had hoped that it would be possible to omit much of the personal information from this decision but given the nature of the allegations in this matter and the facts, I have found it necessary to set out sensitive information. However, as I made clear to the parties in our post-hearing conference calls, in arriving at this decision I have considered all of the admitted evidence irrespective of whether it is set out in full in this document.

5In July of 2009 Mary Brown filed a grievance that alleged she was been harassed in the workplace. Her grievance stated:

I grieve that management has violated articles 2, 3 and 9 of the Collective Agreement but not limited to. [sic] And any other article of the Collective Agreement and/or legislation.

6By way of remedy she sought:

• Letter of apology

• Manager to attend training (WDHP)

• Sick credits since January 1 2008

• Vacation credits for 2009

• Career planning

• Immediate transfer to another ministry (health accommodation)

• Review of workload

• Pain and suffering of $150,000.

• Another other award deemed just to be made whole

7According to the grievor, the harassment to which she was subjected took place over a substantial period of time. It was alleged that the harassment she experienced had two elements. The first was that the Employer failed to provide her with work that is congruent with her skills and abilities despite her repeated requests for change. The second aspect of the alleged harassment was the ill treatment she received at the hands of her managers and her co-workers. The grievor was of the view that she was “relentlessly bullied” and demeaned over a sustained period of time with the full knowledge of the Employer. It was asserted that this treatment was intended to force her to leave the workplace. During opening statements, the Union underscored that the Employer failed to protect the grievor from the ill treatment of both her managers and her co-workers resulting in her absence for a considerable period of time on sick leave. Hence the remedial requests regarding sick leave and vacation credits.

8The Employer denied the allegations in total. It was said that there was no bullying or demeaning conduct against the grievor in the workplace and that it had no responsibility for the grievor’s sick leave. Finally it was asserted that the grievor had an appropriate workload. It was contended that Ms. Brown was not assigned certain files because in the course of managing her performance she was found not yet ready to take on the more challenging matters. Accordingly, the Employer’s position was that the grievance should be dismissed and therefore no remedy should be ordered.

9The grievor testified at considerable length. Before working in the OPS she worked as in a number of different positions for the Federal government. She said that after she left the Federal government she found out that she was being “blacklisted” and that prospective employers were being told she had been fired. She retained a lawyer and the record was “fixed” and she then began to work for another department within the Federal government. While there she filed a number of grievances regarding the “way I was treated” and because she did not win certain job competitions. She testified that her mistreatment at that time was as the result of her finding and reporting certain errors in a particular financial system.

10A review of the evidence of the grievor revealed that her major complaints about her treatment in the workplace can be summarized in the following list:

• Improper assignment of workload including unfair distribution of work and the Employer’s failure to assign her “preferred” files;

• Being yelled and otherwise mistreated at by her immediate supervisor, Mr. Watts;

• Being excluded from certain group activities such as going out to breakfast which also left her with an inordinate amount of work to perform as the result of the absence of co-workers;

• Being left at a training session by the car pool co-workers who drove her to the event in the morning leaving her without transportation and humiliated;

• Being yelled at by the Manager, Ms. Graham in a meeting;

• Being badgered for further medical information after a short absence thereby causing a sick leave extending over many months.

11As noted above, I will set out the evidence – to the extent possible without revealing facts that would lead to the grievor’s identity – on each of these complaints. Before turning to that evidence it is necessary to say that the grievor was extraordinarily focused on these complaints. It happened frequently during the course of her evidence – both in chief and in cross-examination – which she would return to one of these complaints providing a repetitive narrative irrespective of the question she was asked. For example, when asked if her work would have been aided by the assignment of an assistant she responded with a discussion regarding her co-workers taking break periods that were too long and receiving “special training” that she did not have. This failure to provide a response to the posed question made a comprehensive review of her evidence in context difficult and somewhat disjointed. It was not apparent if failing to answer the question that was posed was as the result of an attempt to avoid the question or merely a result of the repetitive, focused nature of her discourse.

12Turning now to her specific complaints, Ms. Brown testified that there were approximately six different types of files that were handled by her department. Of the six she was only assigned two types. She had understood that work would be distributed evenly amongst those officers in the department but that did not occur. The “larger” files that were assigned to others were more “prestigious” and “made you look more important”. She said that everyone else but her was assigned such files. She conceded that she did not ask her immediate supervisor for these files because she felt he did not like her nor did she ask for these files in her performance review plans because she did not think that she had to do this.

13The grievor had developed a spreadsheet regarding the work assignments to illustrate this point for the hearing. She reviewed the spreadsheet and said that it was not the number of files that she was assigned but the fact that she got so many of a particular types that kept her “too busy to look outside of that box and pursue more regularly getting a more prominent or prestigious file”. Much of her work was done over the telephone whereas the other files would have put her out in the community more working with clients in their own environment.

14When speaking of being excluded from certain work Ms. Brown eventually conceded that she was not the only officer excluded from particular files but she thought she was the only one in her unit. She testified that she spoke with Ms. Graham about her desire to be assigned one of the more prestigious files. Ms. Graham told her that she did not yet have the experience necessary to do that work and that further that she had not made her desire to do the work known in her performance plan. According to the grievor, she was eventually told by Ms. Graham that she did not get such a file because she had “bad mouthed” some of her coworkers out in the community and such behaviour could not be tolerated when administering the larger files. Ms. Brown testified that she was “insulted and offended” by this rationale.

15In cross-examination the grievor said that she could not have “bad mouthed” any of her coworkers given that she was never out in the community. She was asked about a particular incident that took place at a session with a large number of clients. She explained that when she got to the facility where the session was being held she went to the room where the sessions had been held in the past only to find no one there. She said that there had been a room change but her coworkers “forgot to outline this change to me and I missed it because of my heavy workload.” She stated that rather than her coworkers looking for her in the “normal room”, they called Ms. Graham and reported her absence. They “made a big issue out of nothing.” When asked if she “called out” her coworkers when she eventually arrived in the correct room she said no. She conceded that she may have asked them why they did not find her but she specifically denied speaking harshly and said that she would not have had any conversation about it in front of clients. She eventually agreed it unlikely that she would have said nothing but she would have waited until there were no clients in the area. When she was asked about this matter again later in her cross-examination she said that she did not “believe that she acted that way and most people were out of the room by the time I got there.” She said that she did speak with Ms. Graham about this entire matter because she felt that it was “done on purpose.” She referred to her coworkers in this exchange as “a bunch of bullies”.

16In further discussion in cross-examination about the assignment of files it was put to the grievor that she was told that she was not assigned certain files because she lacked certain skills. She agreed that she was told she did not have file management skills or sufficient communication skills. It was also put to the grievor that she was told that she did not get certain files because of the number of days she was absent from the workplace. She agreed that she had been told that and added that “yes, the place was making me sick.”

17Ms. Brown was asked whether she knew that, according to statistics kept by Ms. Graham, she took more time than anyone else to process the files she had. Her response was that “I did not keep track of stats” and that she did not monitor that information. She only knew that the “workload was not evenly distributed”.

18Ms. Brown was asked how Ms. Graham was to know that she wanted a more prestigious file if she did not put her wishes in her performance plan. She said that “it is not about wanting such a file – it is about making sure your employees are trained in every aspect of your area.”

19Regarding bullying by her immediate supervisor Ms. Brown testified that when Mr. Watts attended at her work location he would “spend ten to thirty minutes speaking with my coworkers and then walk by my office and ignore me.” He also “yelled at me several times in the presence of my coworkers about many things”. For instance, once when she brought her son into the office “to learn about what mommy does” because she had no one to watch him, Mr. Watts yelled at her “very loud” in front of everyone. She testified that she later complained of this treatment to Ms. Graham and shortly after that conversation Mr. Watts apologized to her. The grievor also noted in passing that others brought their children into the office, for example, Ms. Graham had her son in to move furniture. Another co-worker had even brought her dog into the office.

20In cross-examination the grievor continued to insist that Mr. Watts yelled at her and told her to take her son home. In her response Ms. Brown said that Mr. Watts “was yelling – not for the first time – take him home – he did not like me from the day I first arrived.” She testified that she spoke with Ms. Graham about this incident later but was given excuses for his behaviour such as “Mr. Watts is just being Mr. Watts”. She repeated that almost all others brought their children into the office although she conceded that she did not know if they were given pre-approval for such visits and that she had not obtained it prior to bring her son to the office. She stated a number of times during the course of her evidence that Ms. Graham had her son in the office. When it was put to her that Ms. Graham’s evidence would be that she had arranged in advance and gotten approval for her son to move furniture, Ms. Brown responded only, “wouldn’t that be nepotism?” When pushed she said that she would dispute that Ms. Graham had prior approval and would only believe it if Ms. Graham could “prove it.”

21Ms. Brown said that there were other instances when Mr. Watts yelled at her. In a staff meeting when she was speaking about how some similar work was done by federal employees Mr. Watts yelled at her that he did not care how it was done in Ottawa. This exchange took place in front of about six coworkers.

22According to the grievor, a group of employees went out to breakfast virtually every day. Mr. Watts occasionally joined them. She was never invited to these sessions. She claimed that she did not care that she was not invited but was distressed about “the abuse of hours of work” that were lost. They would be gone for approximately forty-five minutes to an hour and return “laughing and talking making it very obvious.” She heard from others that little work was done during these sessions but “employee bashing” was common. She was astonished that these employees took this length of time away from their desks and yet managed to accumulate overtime. This was particularly frustrating because she had once asked Mr. Watts for two hours of overtime for necessary work but was told that she had to learn to manage her time better. She noted that at one point she was told that these employees worked through their lunch period and that the “breakfast” was their break time.

23Ms. Brown later conceded that the “breakfast sessions” frustrated her because she was “so busy with my workload” and yet others could take “extra long breaks”. She said that she felt excluded and thought that the practice was not good for morale because some employees worked while others were abusing break times.

24In cross-examination Ms. Brown conceded that Ms. Graham must have spoken to Mr. Watts about these breakfast sessions because at some point after the grievor complained, he stopped going out with the group although her coworkers continued the practice.

25Ms. Brown testified that sometime in 2008 there was a training session in another city. It was arranged that people would car-pool to and from the event. She was a passenger with three other coworkers. After arriving at the event one of her co-passengers had made other arrangements for the return trip and made that known. The grievor thought this was because that coworker had wanted to sit in the front seat but was relegated to the back. In any event, at the end of the day when she went to the parking lot to join the other two coworkers for the return trip she could not find them and ultimately learned that they had left without her. She was so upset that she began to cry. She testified – indeed she repeated a number of times during her evidence - that to this day she has never received an apology or an explanation. After realizing that she had been abandoned she met up with Ms. Graham who arranged a ride with another coworker for the return trip. The next day she confronted the driver of the vehicle but got no explanation. Her coworker said she did not have time to talk. She was very hurt by this treatment. She felt she had been bullied for quite some time at this point and “this was just another notch in their belt.”

26The grievor was asked in her examination in chief if she was ever spoken to about alcohol. She said that sometime prior to 2009 Ms. Graham spoke to her and told her that one of her coworkers complained that she smelled of alcohol. In her discussion with Ms. Graham the grievor said that she explained that she had been drinking vodka the night before and it made her ill. She was hung over – not impaired. During this discussion with Ms. Graham she indicated that when things became difficult in her life “sometimes I will drink more than I should” and that at this time things were “not very good” at work. After this conversation she received an email from Ms. Graham containing a suggestion about the Employment Assistance Program. Ms. Brown took up this suggestions and attended EAP alcohol and drug consumption programs. She attended an EAP counselor on eight occasions. Unfortunately when her office was moved from one location to another she lost contact with her counselor. She testified that he attempted to phone her at her old location but none of her coworkers would pass on her new telephone number. She was very annoyed by this and complained to Ms. Graham.

27On April 15, 2009, Ms. Brown attended at a meeting with Ms. Graham in her office. The Union president was attending via conference call. The grievor thought that the purpose of the meeting was to discuss a misunderstanding regarding a comment she made to a client. She testified that she told Ms. Graham that she said in an email that she was “super busy and mentioned my own job security with the amount of workload that I have.” During the conversation at the April 15th meeting the grievor began to cry. According to Ms. Brown, Ms. Graham “began banging her fist on the table” leaving her no option but to leave the meeting. She testified that she was so upset by Ms. Graham’s repeated banging on the desk and yelling at her that she could not speak. She “never had anyone treat me like that before and this was after enduring the bullying in the workplace for two years.” She testified that Ms. Graham “lost control” and yelled at her even though she had done nothing to deserve that type of treatment. This caused her to feel like there would never be a change in the workplace. The very person who had the power to make changes in the office now was part of the problem. She testified that this treatment was worse than some of the personal tragedies that she had suffered in her life.

28In cross-examination Ms. Brown said that she felt threatened for her job and her mental health as the result of this exchange. She left the office and went to see her physician. He told her that she should spend two weeks away from the workplace. However, she returned for the next two workdays to “clean up her desk” and once that work was done she began what was intended to be two weeks of sick leave.

29In the second week of her sick leave the grievor received a letter from Ms. Graham that said, in part:

This correspondence will service to summarize our recent meeting of April 15, 2009, where we reviewed workplace issues and discussed your current health status.

As we discussed, I am concerned with respect to your ability to cope in the workplace. It is the employer’s observation that you are displaying behaviour that may be associated with a health related condition. You are aware that it is the ministry’s policy to support employees whose injury or illness is affecting their ability to meet job- related requirements or who need accommodation. The employer would like to safe guard your well-being and provide you any assistance that you may need.

Attached you will find a “Request for Employee Health Information Form” for completion by your physician. This documentation will need to be completed by your physician to address a return to work or an extension of your current sick leave. Please have your physician complete the document and return to my attention by the end of this week (May 1).

Once I receive the document, I will schedule a meeting to review the information with you and discuss a strategy to move forward. Any costs associated with the completion of the document will be at the employer’s expense.

30As noted in the letter, attached was a form for the grievor’s physician to complete. In that form specific comments and questions were set out for the attending physician. Included was, in part:

As you are aware, the employee was frequently absent during 2008. As a result, a medical note was obtained on February 17, 2009, indicating that she was in good health and able to work. Since that time the employee appears to have difficulty coping with the responsibilities of the workplace. Her mood is labile and she is easily moved to tears. Her focus and clarity of thought seems compromised. She appears unable to cope fully with the demands of her job. She has indicated that staff in the workplace exclude and conspire against her………

31The letter went on to pose a number of questions to the physician. Ms. Brown testified that she was not able to return to work on the day originally stated in her medical note because the Employee Information form was not yet completed. She had decided to have her “old” physician fill it out because he knew her history and could be more supportive. She also testified that upon receiving this form she was unable to return due to the “defamatory” comments and medical assessments made by the employer. She stated she became “very upset” and hurt when she got this form feeling that it was the “straw that broke the camel’s back”. She said it “sent me spiraling into a depression” and caused her further absence from the workplace.

32The grievor was reminded of the need to have the medical information provided in a letter dated June 8, 2009. A completed form was signed by a physician on June 15th and received by the Employer on June 18, 2009. In the response dated June 15th, 2009 the physician said that Ms. Brown was capable of focus and clarity of thought “when not harassed by supervisors” and that she had informed him that she was “being harassed and cites many examples”. The physician went on to deny the assertion that the grievor was “labile” noting that she “is appropriate.” He also indicated that she felt unable to return to work at that point and that a transfer to another office in another city was required.

33In cross-examination the grievor was asked about the Employer’s request for further medical information. It was put to her that the Employer had sought and received Union agreement that further information was necessary at the time but she denied any recall of that fact.

34In cross-examination it was suggested to the grievor that her recall of Ms. Graham’s behaviour at the April 15th meeting was incorrect. Ms. Brown was told that Ms. Graham would testify that she slapped the desk once but that was the extent of her inappropriate actions. She disagreed “entirely” with this characterization of the meeting saying that she felt threatened by the abuse of a fist pounding repeatedly on the desk. She felt her job was threatened and she was in shock.

35In a letter dated July 24, 2009 the grievor’s physician stated:

Ms. Brown has been unwell since the spring of 2009. She suffers from anxiety and depression. Triggers cited by her include workplace harassment. She states and provides evidence that the workload is unfairly distributed among the employees at her level. She cannot face being in the same environment with her current supervisor. She feels she can do the work at her own pace and enjoys the work, but is unable to return to her (current) office.

36On August 13, 2009 the grievor received a five-page letter from Ms. Graham. There was a review of the various exchanges between the grievor and the Employer since April 15, 2009. The letter also included a request for an Independent Medical Evaluation (IME). The grievor was given three names from which to choose. An appointment was made for the IME but according to Ms. Brown, the appointment was cancelled. She testified that it had to be rescheduled because she “wasn’t well” due to “the stress of being off work and everything that happened.” She attended about a month later for the IME. Ms. Brown was shown a copy of the IME and did not take issue with any of the comments found therein. She said that she took to the appointment “documented proof of harassment” she had experienced from this and previous employers since 1991.

37Ms. Brown testified that she attempted to return to work at the beginning of February 2010 but was prevented because forms had to be filled out. She finally returned in March on a gradual return to work. She noted that she was absent from work for almost eleven months receiving short term and long-term income protections. However, she thought she was without any compensation for approximately three months. It was her view that the Employer purposely thwarted her attempts to return to work in a continuation of its efforts to bully and harass her.

38The report from the Ph.D. in Clinical Psychology who was retained to do the IME was particularly helpful and informative. While some of the information found therein is sensitive, it is essential to set out certain portions in order to get a complete understanding of this matter. Parts of the fifteen page report stated:

Ms. Brown reported a long history of problems she had attributed to various people influencing treatment that she has received in the workplace.

She reported that through 2003 to 2007 she started to have more problems with drinking, gambling, depression and financial stress.

By March 2007 she felt that her supervisor “had it out for me”. She did feel however that her immediate manager was understanding and supportive. She felt that the supervisor treated her rudely. For example she was once chastised when she brought her son into work. There was another meeting where she brought up information about problems at work. Again she felt he chastised her. She described this as very embarrassing and brought her to tears. She noted at the time people had reassured her that the supervisor was “disgruntled and that the way he is” and to not take the comments personally. She felt however, that he was like that with her but not with other people.

She reported that she was increasingly given more work demands. She has approached a supervisor regarding getting reimbursement for overtime hours. He had refused her request. She felt there was favouritism and that other employees had got approval for overtime hours.

At that time she reported that the department work involved [certain] files. She reported all her coworkers had been assigned to these files except for her. Initially she had been told by her manager that she had not identified this on her performance review request. She felt her coworkers were getting special training treatment and that she was excluded. She report also that there was an awareness of her past grievances and felt she had been excluded because they wanted to avoid her uncovering any kind of fraud or inappropriate activities. As a result she was reportedly given responsibility for other files that she was not able to maintain and was given workloads that were in excess of other people in the department.

She reported there was one instance where she came into work “hung over”. She reported she told the receptionist she had been up drinking until 3:00 in the morning. The manager approached her and informed her that coworkers were concerned because they smelled alcohol. In any event she met with the union representative and manager. She reported she had a pattern of turning to alcohol when she felt down. She was starting to drink more frequently. She reported that the drinking has resulted in other serious consequences. For example, she has been charged with drinking and driving the day after her request for transfer was turned down. She noted that she lost her license because of the charge. There was also some missed work.

She reported her manager was aware of her drinking problem. She felt that the issues around her workload were ignored. She reported that she continued to not feel welcome or wanted.

Again she felt she continued to be harassed. For example, there were other coworkers who would take long breaks. She would end up having to work longer. She felt that she has been scapegoated and felt it insulting. She felt that the supervisor’s incompetence was a factor here and she felt that the treatment by the supervisor was “like a slap in the face.”

In April 2009 there had been a concern raised about one of the files she was handling. This had resulted in a conflictual encounter and she ended up “leaving in tears”. She left work and got a “six pack” at the store. At that point she was on anti-depressant medications. In retrospect she realized she should not have been combining alcohol with her medications.

It was in April she had gone to Dr. O. about her ongoing problems, who in consultation with her, had suggested taking a couple of weeks off. After getting that medical recommendation she had gone in the next day or two to clear up her work.

When she returned April 29, 2009, she was informed that she could not return until she got further medical forms completed. She felt her manager had no right to require her to get further medical certification that she could come back. She noted at the time that she could not get back in to see her psychiatrist immediately.

She reported this event precipitated a bout where she had picked up a “12 pack of beer”, went home and was doing some gardening. She was drinking, as she noted “to drown out the pain”. In retrospect she noted that, “I know I shouldn’t drink”. In any event her boyfriend came home at that time and was “livid” that she was intoxicated. This led to a conflict and altercation. She felt he was being verbally abusive. She described feeling scared. She had previous situations where she had been physically assaulted in a past relationship. She ended up punching him in the eye.

She was subsequently charged with assault. Initially she was held in jail. She had attempted to call her mother to get a surety so she could be released and to get bail but her mother would not provide this. She spent another 3 days in jail.

She subsequently stayed with her mother. She also noted that her mother “is a big drinker” and that residing with her was not good for her. Her mother kept telling her that she should “let it go” with respect to the various concerns about her work.

After she was released she had been subsequently apprehended, apparently resisting arrest and after curfew and was charged with assaulting two police officers. She reported that she was overwhelmed with various stressors because she had not been back to work, she was in a dysfunctional relationship, and she was distressed and upset. She reported that she does not remember all of the details of this altercation but she had been put in restraints on her ankles and reported that she still has some marks from that.

She reported that she had not consumed any alcohol since that time. She had not gone to any AA meetings or other therapeutic supports, but has reported that she intends to do so. She did state that she has realized that drinking has been “my worst enemy”. She noted that the drinking had been disruptive to her career. She noted that the drinking problems date back to 1995 when she received a driving under the influence conviction and that since then “things had gone well when I haven’t used alcohol.”

Testing

Typically, individuals with this profile are characterized by patterns of tending to make demands on others for understanding but tend to be averse to demands made on them by others. Typically they can be suspicious of the motivation of others and avoid deep emotional involvements. Individuals with this profile tend to have a poor work history and relationship problems are common. Some degree of buried hostility or anger is typical. Sometimes they may appear to be irritable, sullen, argumentative, and may tend to harbor some resentment towards authority or authority figures.

Such individuals do not tend to present with or acknowledge serious psychological problems. They tend to identify responsibility for their difficulties or problems on others or on circumstances. They may tend to evaluate themselves and their performance somewhat unrealistically. As they tend to not acknowledge or deny serious emotional problems, they are not receptive to and typically do not respond optimally to psychological intervention or psychotherapeutic intervention.

Sometimes individuals with this profile may present vague emotional or physical complaints. They might report feeling symptoms of stress or also vague physical symptoms.

Examination of supplementary scales had also reflected scores above cutoff both on the MAC-R and AAS, strongly suggestive of an alcohol abuse pattern that would also be consistent with her report. There were scale elevations suggesting tendencies towards feeling persecuted. ……..

OPINION

It also appears from the test profile and her psychosocial history that she may be manifesting a maladaptive pattern of interpersonal behaviour, perceiving and thinking. This may in part be as a result of her history that has involved various interpersonal problems and grievances in the workplace such that she evidences heightened interpersonal sensitivity and reactions that may interfere or negatively impact with some aspects of the job such as being able to work cooperatively with others, deal effectively with confrontational situations, dealing with public or coworkers, and other aspects of communication.

The characteristics of a personality disorder not easily translate into specific occupational restrictions. However, in this woman’s case, certainly work environments or duties that are not likely to evoke potential maladaptive behavioural, emotional or other kinds of untoward psychosocial reactions (which in turn may also heighten propensity for substance abuse) would be ideal. Sometimes because of the history or past associations, a “new” work environment such as has been suggested by Dr. H. may be clinically reasonable.

In this woman’s case regardless or what outcome or decision is made, either return to her own employment, placement in a job in another location, placement in another job or different duties, early retirement, or placement on long term disability, this woman should have ongoing care either psychiatric, psychological, or from other regulated healthcare professionals in, or concurrent with, a drug and alcohol treatment program.

This is a necessary recommendation and precaution given the serious consequences that have occurred because of her alcohol abuse and given that this has been a longstanding problem.

Further, if this woman is going to be successful in returning and functioning in the work environment, having ongoing therapeutic consultation to address alternative ways of coping with interpersonal problems in this workplace and work stress is critical. This woman has had a long history of recurrent difficulties which I suspect one way or another have precluded the development of more effective ways of dealing with workplace problems.

39In a follow up report the clinical psychologist stated, in part:

As I noted in my report, the prognosis for her to be able to resume and maintain duties are unlikely without the significant accommodations and treatment supports, in light of her current satiation, having opportunity for longer term therapy as noted above could improve the likelihood of her ability to return back to the work environment depending on outcome. As noted in this report, there had been suggestions by her family physician of starting a new work environment and I did note that there may be advantages to that. One of the advantages of a new work environment is that it changes focus, perceptions, old patterns, habits, which may facilitate more ability for more adaptive work in the workplace. Again too there is no absolute guarantee that a new environment may not result in a similar pattern of problems that she has evidenced in the past.

In my opinion, a more definitive statement about her capacity and prognosis could be made at some point in the future after she has an appropriate therapy and intervention as outlined above. At that point there would certainly be more types of involvement, opportunities for observations, therapeutic interventions such that her treating professionals and reassessment could then re-evaluate her to determine if there has been sufficient change that she could be expected to return to her work capacities either in the previous location or new location. As I noted in my report, I suspect that she’d need longer term therapy of up to 6 – 8 months before a meaningful outcome could be identified. I don’t feel at this point I can provide an absolute opinion without seeing her response and involvements in longer term treatment.

40The grievor was asked if she thought the IME report was generally accurate. She said that there were “some discrepancies but it is generally the story of my tragedies in my working career.”

41At one point during her evidence the grievor stated that, unlike others in the workplace she did not “shout and scream at people.” In her cross-examination she was challenged about this comment. She was asked about some of the incidents set out in the IME report including the assault of her boyfriend. She said that she acted in self-defense but the reason she had pleaded guilty was because she could not afford a lawyer.

42Ms. Brown was asked if her view that the assault of her boyfriend happened as the result of her treatment in the workplace. In response she stated that the police charged her because “they felt the need to charge someone – that is just the way the police operate” and “had I been allowed to go back to work on May 4th I would not have bought the beer and then had the altercation with my boyfriend or been charged – my boyfriend would not have been upset with me and I would not have been upset – I was prevented from going to work.” When pressed, she admitted that the cause of the drinking that day was the workplace but it was not the cause of the altercation with her boyfriend.

43She was also asked about the incident of resisting arrest and assaulting two police officers. It was suggested by counsel that she has a habit of “lashing out”. She strongly denied that characterization and explained that she was on medication and not supposed to drink. She does not “remember a thing” except that the police put her in jail. She was incarcerated for a day. She said at one point that she had only engaged in a verbal assault but later conceded that, “I might have been kicking from what they said.” She added that these charges were ultimately dropped.

44The grievor was reminded in her cross-examination that she said in her evidence in chief that the reason she did not attend the first appointment for her IME was because she was not well. It was then pointed out to her that the IME report stated that it was missed due to her incarceration. In her response Ms. Brown said, “that is correct, I could not attend because I was sick as is evidenced by the fact that I was in jail.” When it was suggested that she had lied to the Board about this she said “maybe I was embarrassed because it was out of character for me.”

45In her cross-examination Ms. Brown agreed that, notwithstanding her evidence in chief wherein she said that she had been without compensation for a number of months, she had actually been covered by short-term sick leave, Employment Insurance and LTIP for the entire period of her absence. However she said that her complaint is that she was not paid at one hundred percent of her salary.

46Ms. Cook, a past coworker of Ms. Brown testified in these proceedings. She said that she had attended some of the breakfast meetings referred to by the grievor. The sessions were about forty to sixty minutes in length, were held offsite and were attended by a core group of employees. During these sessions other employees, including the grievor, were discussed. While she could not recall exactly what was said, the general tone of those comments was derogatory. They “made fun” of Ms. Brown and took issue with her ability and her method of doing things.

47Ms. Cook also testified about a meeting she attended during the period when the grievor was absent from the workplace. Another employee, Ms. McIntosh, organized the meeting and once all were settled she said that she wanted to discuss the grievor. According to Ms. Cook, Ms. McIntosh informed the group that she knew that grievor would be returning to workplace. She wanted to know if any of them felt unsafe about her return and said that they “could not grieve another union member”. There was a general discussion with people acknowledging that Ms. Brown might come in drunk or otherwise doing something inappropriate. Ms. McIntosh was attempting to obtain an agreement that they would file a group grievance about Ms. Brown’s return. Ms. McIntosh then asked Ms. Graham to attend at the meeting. Ms. Cook said when Ms. Graham got to the meeting she spoke out and said that the entire situation was “icky” and Ms. Graham agreed. She testified that she was sorry for Ms. Brown and expressed dismay that the staff was speaking so “viciously” about her and other staff. According to Ms. Cook, Ms. Graham assured staff that she would make sure that the grievor would not “do harm to us”.

48Ms. Graham testified in these proceedings. She too had been with the federal government before becoming an employee of the OPS. She became manager of the workplace in the fall of 2007.

49Ms. Graham was asked about the employees who take an early lunch break together. She said that there are core hours and within that time frame people are free to decide when to take their lunch break. Ms. Graham said that after the grievor complained to her about this practice she monitored the length of time taken. She also spoke to those involved including Mr. Watts to ensure that they were not taking this break and then a further break at the noon hour. She satisfied herself that while these breaks were taken earlier in the day, they were not beyond allotted paid and unpaid break time.

50Ms. Graham was asked about the incident involving the grievor having her son in the workplace. She recalled that the grievor complained to her about being spoken to about this by Mr. Watts. The grievor told her that others were allowed to have children in the workplace and yet it was not acceptable for her. Ms. Graham was not sure when this discussion took place and did not recall the conversation in detail but she acknowledged that it took place. She testified that on one occasion her own son was in the workplace for the purpose of moving furniture. She had contacted her supervisors in advance to ensure that this was acceptable.

51Ms. Graham recalled in the incident where the grievor was left without a return ride from a training session. She said that when the meeting ended she found the grievor in the parking lot crying about being left behind. Ms. Graham arranged for the grievor to return with other people. The following day she spoke with the driver who left the grievor and was told that they “just got wires crossed” and that she would speak with the grievor about it. Subsequent to this incident Ms. Graham put a formalized carpool schedule into place when staff were to attend meetings out of town.

52Ms. Graham was asked to recall her discussions with the grievor about alcohol. The first instance was February 27, 2008. She held a meeting with Ms. Brown and her Union representative although the meeting was not disciplinary. She told the grievor that “some” of her coworkers had complained that she smelled of alcohol and saw that she had put her head down on her desk. Ms. Brown told her that she was not drunk but sick. She said that she had drunk some “old” alcohol the night before and “that it was poisoned.” She was feeling ill and sick to her stomach today as a result. Ms. Graham explained that her coworkers had been concerned about her health and safety and encouraged Ms. Brown to make use of the Employee Assistance Program.

53The next incident was on the morning of August 21, 2008 when Mr. Watts told her that two employees had complained to him that the grievor “smelled of liquor”. After discussing possible approaches to take in the meeting with Human Resources she asked the grievor to attend in her office. According to an email that Ms. Graham sent shortly after this meeting when she met the grievor she could detect “a strong smell of alcohol on her breath” notwithstanding that Ms. Brown was about two feet away from her. She told Ms. Brown that there had been complaints but the grievor told her it must just be her Irish Cream flavoured coffee. She acknowledged that she had been drinking the night before but did not know why she smelled of alcohol. Ms. Graham told her that it would be best if she not meet with any clients that day and Ms. Brown agreed. It was made known to Ms. Graham later that day that the grievor had met with a client that day prior to their meeting. At some point in this conversation they turned to operational issues and Ms. Graham determined that the grievor did not appear to be impaired. She emphasized that coming into work smelling of alcohol was not acceptable. According to the email, the grievor then told her that it had been a difficult week due to a grievance meeting she had with her previous employer.

54Ms. Graham testified about the training session on March 16, 2009 held for clients. She said that the grievor was late. This was frustrating because it was an important session and the grievor had all of the documents to register the attendees. She and other staff members had to “stall for time” while awaiting the grievor to arrive. She began emailing people at the office to find out if Ms. Brown was there and she ultimately decided that she should have someone else reprint the material at the office and bring it out to the session. While making these arrangements she was walking around the area and she encountered the grievor. Ms. Brown told her that she had been in a different room for a long time waiting for people to arrive. When she was told that the meeting was being held in another room she said, “no one told me what room it was in.” She was to know, “why did no one come to get me?” Ms. Graham testified that she then told the grievor to go to the correct room but when she got there she began yelling at the other staff that she had been given the wrong room to attend. Ms. Graham said that other staff complained about how embarrassing it was to have that discussion in front of the clients.

55It was explained in Ms. Graham’s evidence that the department puts all of its various sessions on Outlook Calendar. All staff are told to utilize this tool. After the incident she checked and the correct information was on the Outlook calendar.

56Ms. Graham also testified about another incident that took place in March of 2009 when she was contacted by one of their regular outside contacts that the grievor had attended at their workplace with a client and was quite rude to the receptionist when they were not allowed to jump the queue. The grievor was said to be aggressive and loud.

57As the result of these two issues Ms. Graham decided to meet with the grievor to review the events and provide coaching. In her notes taken shortly after the meeting held on March 17, 2009, she noted that Ms. Brown denied being rude to the receptionist. Indeed, she said that the receptionist had been rude to her. The grievor took no responsibility for the incident. When the discussion turned to the session where she was late it was pointed out to Ms. Brown that the information had been entered into Outlook Calendar and she had been sent an email reminder of the details. When she was asked about the confusion at this meeting Ms. Brown again asked, “why did no one come to find me?” Ms. Graham’s notes are helpful in this regard. The notes state, in part:

I asked her to tell me about the confusion yesterday morning. She repeated “why didn’t someone come to find me in the Reading Room? I said that it is her responsibility to check her calendar to make sure where she is supposed to be and that her colleagues and I didn’t even think of looking in other rooms for her. I told her that I was thinking the worst…. What if she was in a car accident; I hope she’s okay….

I suggested that in future she print out the calendar from her computer so that there would be no confusion about the start time or the location. I further said that she could have taken responsibility for the situation by calling me, or Mr. Watts or anyone at the office, when it was past 8:30 and no clients or other staff had arrived. She repeated that the coworkers should have come looking for her. I said that when mistakes happen we need to examine our own responses and figure out a way to not repeat the mistakes. I reiterated that she should print out her calendar and phone the office should this sort of thing happen again. She said that her coworkers should have told her that the room was changed from the last time, and that she has too much work and that others have better work assignments and she did three agreements last week. At this point, she teared up, but did not cry.

I also said that I had feedback from her coworkers that they were embarrassed that she confronted them about them not coming to look for her in front of the clients. I said that it is inappropriate for us to have these discussions in public. When we are with clients, it is important that ….. we are united not divided. It would have been more appropriate to come back to the office and figure out what transpired and make a plan to make sure it didn’t happen again. I said that as coworkers we never disagree in public. Of course we will have our differences, as humans, but we don’t need to discuss them in front of other people. Ms. Brown then repeated that she has more work that any one else, and that people spend too much time laughing and talking and that she is the only one that has too much work. I let her know that on our session on March 25 we would be talking about the level of noise in the office and collaboratively work on a solution. I further said that she does not have more work than her coworkers.

58Ms. Graham testified that she arranged to meet with the grievor on April 16, 2009 because of another incident involving what she felt to be inappropriate discussion with a service provider. She wanted to convey to Ms. Brown that it is not proper to engage outsiders in the details of the office’s internal decision-making process. Ms. Brown’s Union representative attended via telephone. According to Ms. Graham during this discussion the grievor deflected the criticism and again contended that her coworkers were taking long breaks. Ms. Graham testified that she told the grievor that they had discussed that matter recently and they would not discuss it again. Ms. Brown then said that even though she tells her these things, nothing is done about it.

59Ms. Graham testified that in response to this exchange she “hit the table softly” and said “you can’t possible know that.” She said that she tried not to let her emotions show but she was frustrated. She denied hitting the table with her fist and said that her slapping of the table was done once. She said that she did not yell at the grievor. She testified that she saw that Ms. Brown was upset and had begun to cry so she said “oh, sorry – I shouldn’t have done that”. She knew as soon as she had done it that it was not “work appropriate”. The grievor left the meeting. Ms. Graham said in her evidence that by that time it had become “fairly regular” that she would instruct the grievor about things not to do, to try another way and she would “become upset and deflect it and start talking about other situations and start crying.”

60In cross-examination Ms. Graham conceded that she may well have had an edge to her voice and that it was not “how one would conduct themselves in a business meeting.” She said that for about ten seconds her emotions were not in check.

61Ms. Graham testified that she thought it odd that the grievor came to work for two days after seeing her physician prior to beginning a medical leave. She was very concerned about her state of mind and her overall wellbeing. She recalled that the grievor had told her that she drank when she was upset and she wanted to make sure that she was all right to return to work. Ms. Graham said that she wanted to make sure that if the grievor needed more time away from the workplace that she would take it. The letters written to the grievor in the spring of 2009 about the need for more medical information in order to return to work were not drafted by Ms. Graham according to her evidence. The HR department composed those communications. She said that like the grievor, she had to look the word “labile” up in the dictionary. It was ultimately decided that an IME was necessary because the information coming from her own physician was not helpful in terms of a return to work and any accommodations that might be needed.

62Ms. Graham undertook a review of the work assignment in the office during this period of time. Like the grievor, she was of the view that a look at just file numbers is not particularly helpful because some files require much more time than others. She agreed that the grievor was not assigned the full range of files but explained that this was due to her lack of ability to have professional formal relationships and her lack of communication skills, Ms. Graham did not agree that the grievor was assigned more volume of work than others.

63Ms. Graham was asked about the meeting held in April of 2011 by Ms. McIntosh. She recalled that she was requested by Ms. McIntosh to attend and when she arrived she found the staff speaking about two issues regarding the grievor. The first was that she was not competent to do the work and that she appeared to have health issues because they had seen her crying at her desk and the second was that she was sometimes found to have alcohol on her breath. Ms. Cook said at the time that the meeting was “icky” and according to Ms. Graham she said to the attendees of the meeting that what went on between her and any employee was not going to be reported to the group. Ms. McIntosh told her that they were contemplating a group grievance because there was a poisoned work environment. She suggested to those in attendance that if they had concerns about her ability to manage they were welcome to speak with her manager.

64Ms. Graham said that she knew this was a “major event” in the office and for that reason she contacted her Human Resources contacts immediately.

65In cross-examination Ms. Graham said that she knew the grievor thought she was being bullied but she had not known the grievor’s feelings until after her sick leave that began in the spring of 2009. She did appreciate that the grievor felt excluded and that other were conspiring against her but she thought it was not “bullying per se” but a difficulty getting along with her coworkers and a communication problem. She also said that “if anything I saw employees trying to bring Ms. Brown along – I saw employees frustrated because they tried to mentor her and she seemed not to get it and I saw that employees frustrated by Ms. Brown and she said people were conspiring against her.”

66Ms. Graham asked in cross-examination whether she spoke to Mr. Watts about the breakfast breaks. She replied that she had and she agreed that she knew that some “bitching and whining” went on at these breaks. However, she said that it is not her practice to ask people who they have lunch with and what their conversation was on their own time.

67Ms. Graham was asked in cross-examination about the grievor’s complaint that Mr. Watts yelled at her about bringing her son into the office. She said that Mr. Watts told her that he went into the area where the grievor worked and saw a child. He told her that in a somewhat raised voice he asked, “Whose kid is that?” When the grievor replied that it was her son Mr. Watts told her to take him home. She did not become aware that Ms. Brown felt Mr. Watts had yelled at her until sometime much later.

68In cross-examination Ms. Graham was asked why she did not undertake investigations into the potential sources of what caused the grievor to cry so frequently. In reply Ms. Graham said that the instances of the grievor’s crying took place that she was referring to occurred when the two of them were meeting. She would attempt to provide corrective coaching and Ms. Brown would cry.

UNION SUBMISSIONS

69Ms. Ferreira, for the Union began by reminding the Board that the allegations at issue in this case are three-fold. First, the grievor was differentially treated regarding the assignment of work and further that she was subjected to demeaning and degrading treatment at the hands of her managers and coworkers. The third area of dispute, as mentioned earlier is the subject of a separate decision.

70The Union undertook a thorough review of the evidence. It was suggested that she arrived at this workplace happy and optimistically looking forward to a fresh start. However, she was quickly disappointed.

71The Union asserted that the Employer took insufficient steps to ensure that the grievor was not harmed by the treatment she received by her coworkers. No follow up was done when she was left without return transportation at a training session. No steps were taken even after the meeting held to discuss the grievor’s return to the workplace. The grievor’s coworkers were conspiring against her and yet the Employer did nothing to protect Ms. Brown.

72Focusing on the meeting held on April 15, 2009, the Union contended that while the meeting was originally scheduled to discuss a misinterpretation of some of the grievor’s comment to a client, it soon devolved into an inappropriate display of bullying at the hands of Ms. Graham. The grievor was clear that she had never been treated in that fashion before. Ms. Graham repeatedly banged the table and yelled at her ultimately resulting in the need for a medical leave. It was hoped by Ms. Brown’s physician that two weeks would be sufficient for her leave but it unfortunately lasted months for reasons caused by the Employer.

73The Union stated that the grievor never engaged in inappropriate behaviour regarding her use of alcohol. While it was conceded that she sometimes turned to alcohol when stressed, it was said that this is not surprising given the horrible abuse that she had to suffer in the workplace. It was also urged that evidence regarding the incident with the police at the time of the originally scheduled IME should not be taken into account given that it was off duty conduct. However, if it is considered to be relevant, it should be recalled that there were very personal reasons for her failure to attend.

74The Union relied upon Re Government of Nunavut and PSAC (2006), 2006 CanLII 93261 (NU LA), 151 L.A.C. (4th) 35 (Knopf); Re Canada Safeway Ltd. And UFCS, Local 401 [2012] A.G.A.A. No. 69 (Ponak); Re United Parcel Service Canada Ltd. & Teamsters Local 938 (2011), 211 L.A.C. (4th) 298 (Goodfellow); Re Government of the Province of Alberta & Alberta Union of Provincial Employees (2012), 221 L.A.C. (4th) 104 (Sims)

EMPLOYER SUBMISSIONS

75Mr. Dailleboust, for the Employer also began with a review of the evidence. However, his characterization of what was heard during the course of this matter was considerably different from that of the Union.

76The Employer suggested that in the consideration of whether there has been harassment in the workplace there is an onus on the union and the grievor to establish a prima facie case and in this matter, that onus has not been met. However, if this Board is of the view that this onus was discharged by the Union the onus shifts to the Employer to provide a reasonable explanation for its actions. As has been noted previously by the Grievance Settlement Board, if the Employer does not offer an explanation that is reasonable then the onus again shifts to the Union to show that the explanation is not reasonable and is discriminatory conduct in disguise.

77Turning to whether a prima facie case was established by the Union, the Employer stated that by any objective standard, the Union has failed. In its analysis of the evidence this Board must first consider the credibility of the witnesses. When the tests set out in Re Faryna v. Chorny (1952) 1951 CanLII 252 (BC CA), 2 DLR 354 (B.C.C.A.) are applied it will be clear that Ms. Brown simply was not credible and her evidence almost in total is unreliable. As has been set out in the jurisprudence, it is not simply demeanor that is considered by adjudicators but also the interests of the witness and the existence of probabilities. In the matter at hand, we have a grievor who has considerable self-interest. Further, Ms. Brown failed to tell this Board the truth. When she was asked in her cross-examination why she told this Board she missed her IME appointment because she was sick when in fact she could not attend because of her incarceration she said that she did not want to tell the truth because it was embarrassing. All of the grievor’s evidence should be viewed through this filter.

78A consideration of the grievor’s complaints reveal that – in large measure – the grievor was being performance managed and not harassed according to the Employer. For example she felt harassed by Ms. Graham when she was asked on more than one occasion about her alcohol consumption. However, the evidence of Ms. Graham was clear that she spoke with the grievor about this matter as a direct result of complaints from others. There was no evidence provided that Ms. Graham concocted these incidents or that the grievor’s coworkers intended to harass her. Yet Ms. Brown would have this Board find she was harassed and mistreated about this matter.

79The Employer asserted that both the evidence of the grievor and a review of the IME reveals that Ms. Brown possesses a personality that lends itself to lashing out when frustrated. This was apparent when she attended at the wrong room for the training session. Her continual mantra at that time was that someone should have personally told her of the room change or at the very least gone to look for her. She saw this as further evidence of harassment as opposed to what it was – which was an instance of her not reading her email and attending work as her coworkers managed to do.

80The Employer, like Ms. Graham, conceded that the meeting on April 15, 2009 could have been better managed. However, the purpose was to discuss an inappropriate exchange the grievor had with a client and when Ms. Graham attempted to explain the impropriety of the grievor’s conduct and provide coaching Ms. Brown constantly raised other issues – such as the breakfast meetings – that were not relevant to the discussion at hand. Ms. Graham raised her voice and slapped the desk once. However, the grievor suggested that Ms. Graham pounded the desk repeatedly and treated Ms. Brown as she had never been treated before. Again, the grievor’s evidence is not credible.

81The grievor viewed the Employer’s efforts to make sure that she was medically fit to return to work as further evidence of harassment. The Employer urged that there was no evidence to substantiate this allegation. It asked for more information and in asking specific questions it noted that the grievor was “labile”. Ms. Brown took this as a personal affront and was then too stressed to work for months. That gap in time cannot be found to lie at the feet of the Employer. The Employer is obliged to ensure that returning employees are medically fit to return to work with or without accommodation and discharging that obligation is not harassment generally, and it was not in this instance.

82Much was made by the grievor about the breakfast meetings, noted the Employer. However, Ms. Graham made sure that the time spent was not on Employer time and spoke to the grievor’s immediate supervisor about the wisdom of attending such meetings. The discussion of employees held on their break time is not harassment in this case. Indeed, when Ms. Cook who occasionally attended those sessions was asked to repeat some of the comments made regarding the grievor she could not recall specifics. Such failure to remember must lead this Board to find that there was nothing that could be seen as egregious that was said.

83Mr. Dailleboust submitted that the Union failed to provide any evidence beyond the grievor’s feelings that she was given a heavier workload than others. Further, the evidence of Ms. Graham was clear that it was determined that Ms. Brown was not yet ready to handle more complex files. Her failure to advance to more complicated matters was a matter of performance management, not harassment or differential treatment.

84The Employer contended that the IME is particularly revealing. It revealed that the grievor fails to recognize her own shortfalls and she often overvalues her abilities.

85After its comprehensive review of the evidence the Employer suggested that when considering what occurred in the workplace there is not doubt that the treatment of the grievor did not fall to the level of abusive behaviour. When Ms. Graham learned of incidents that caused concern she went to various employees and spoke with them. Though the Union may have wanted more action from the Employer, the standard is not perfection.

86The Employer relied upon Re Toronto Transit Commission V. Amalgamated Transit Union (Stina Grievance), [2004] O.L.A.A. No. 565 (Shime); Re United Food and Commercial Workers Union of British Columbia, Local 1518 v. 55369 B.C. Ltd. (c.o.b. Shopper’s Drug Mart No. 242 (Harassment Grievance) [2007] B.C.C.A.A. No. 130 (Larson); Re The Crown in Right of Ontario (Ministry of Community and Social Services) and OPSEU (Laframboise) GSB #2268/95 (Roberts); Cara Operations Ltd. (c.o.b. Toronto Flight Kitchen) & Teamsters Chemical, Energy and Allied Workers Union, Local 647 (Palmieri Grievance) (2005), 2005 CanLII 20788 (ON SCDC), 141 L.A.C. (4th) 26 (Lubordsky); Re The Crown in Right of Ontario (Ministry of Transportation) and OPSEU (Sager) (2004), 2004 CanLII 94669 (ON GSB), 134 L.A.C. (4th) 218 (Mikus); Re The Crown in Right of Ontario (Ministry of Labour) and OPSEU (Waraich) GSB # 2003-0187 (Watters); Re The Crown in Right of Ontario (Ministry of Community and Correctional Services) & Lee et al P-2010-0702 (O’Neil); Re The Crown in Right of Ontario (Ministry of Environment) and OPSEU (Dobroff et al) GSB # 2003-0905 (Dissanayake); and Re The Crown in Right of Ontario (Ministry of Community & Social Services) & OPSEU (Aboutaeib/Carletti) GSB # 2009-1144 (Johnston).

UNION REPLY

87In reply, the Union took great issue with the Employer’s assertion that the Union did not establish a prima facie case of harassment in this matter. It suggested that the evidence was clear that the grievor was harassed and bullied by managers and coworkers in her workplace. Further, it was urged that Ms. Graham ought not to be found more credible than the grievor.

88Ms. Ferreira stressed that the evidence was clear that the Employer caused the grievor’s ill health. Ms. Brown was distraught as the result of harassment and it was made much worse by the insensitivity shown at the point by Ms. Graham when she was returning from a relatively short sick leave.

89The Union stressed that the Employer failed to investigate the grievor’s complaints as evidenced by the ongoing breakfast sessions and later discussion about filing of a group grievance upon the grievor’s return from sick leave. Certainly at the point when Ms. Graham was called into the meeting held to discuss the possibility of filing the group grievance there should have been a prompt response and appropriate action taken. However, there was none. This should have been a red flag for the Employer but it continued to ignore the signs of ongoing harassment and bullying.

90The Union asserted that the Employer is not able to escape its responsibilities even in those circumstances when it has an employee with a difficult personality. This cannot be a bar to a finding of harassment. Indeed, perhaps there should be more responsibility on the Employer in situations such as this because these types of employees are more vulnerable. In any event, this Board should consider the totality of the evidence and that will lead to a finding of harassment.

91The parties agreed that in the event the Board found that losses or damages are owing, the Board should remain seized.

DECISION

92The grievor in this case has alleged that she has been bullied and harassed at the hands of her coworkers and two of her managers virtually since her arrival. It seems a useful exercise to first consider what harassment and bullying are and what they are not.

93In Re TTC (supra), Arbitrator Shime defined harassments as:

Abusive conduct includes physical or mental maltreatment and the improper use of power. It also includes a departure from reasonable conduct.

Harassment includes words, gestures and actions which tend to annoy, harm, abuse, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands or other unpleasantness. A single act, which has a harmful effect, may also constitute harassment.

94Harrassment was also considered in Re Shopper’s Drug Mart (supra). In that decision Arbitrator Larson noted at paragraph 28 that:

Harassment normally involves an element of persistent conduct or a course of activities that involves hostility, importuning, badgering and intimidation or bullying that causes the person distress that is inimical to a safe and positive work environment: Toronto Transit Commission (2004) 2004 CanLII 55086 (ON LA), 132 L.A.C. (4th) 225 but in some instances a single act may be so serious as to amount to harassment including mere verbal abuse: Tyee Village hotel (1999) 1999 CanLII 35983 (BC LA), 81 L.A.C. (4th) 365. As was said in Re Leaf Rapids (Town), unreported November 8, 1993 [summarized in 33 C.L.A.S. 542] at p. 7:

It has been observed that it would be rare for a single occurrence to be labeled harassment. In fact, according to Mr. Gibson, several adjudicators have identified frequency as a normal component of this type of discrimination. A single incident could be, and has been shown to be enough, if it is sufficiently egregious, however.

95Arbitrator Larson goes on to consider the difficult issue of determining whether the conduct of certain managers is aggressive or abusive. He notes that there is a fine line between the two. Interestingly the Collective Agreement in that case included a provision that said the exercising of normal management rights shall not be considered job harassment. While the arbitrator noted that such a clause does not allow harassment it does recognize that at times managing of employee performance – so long as it is not done in an abusive, demeaning or abusive manner – has a legitimate purpose in the workplace. He considered an earlier decision by Arbitrator Laing Re Province of British Columbia (1995) 1995 CanLII 18346 (BC LA), 49 L.A.C. (4th) 193 wherein she considered the word harassment and noted:

This is a serious word, to be used seriously, and applied vigorously when the occasion warrants its use. It should not be trivialized, cheapened or devalued by using it as a loose label to cover petty acts or foolish words, where the harm, by any objective standard, is fleeting. Nor should it be used where there is no intent to be harmful in any way, unless there had been a heedless disregard for the rights of another person and it can be fairly said, “You should have known better.”

As I said earlier in this award, harassment is a serious subject and allegations of such an offence must be dealt with in a serious way, as was the case here. The reverse is also true. Not every employment bruise should be treated under this process. It would be unfortunate if the harassment process was used to vent feelings of minor discontent or general unhappiness with life in the workplace, so as to trivialize those cases where substantial workplace abuses have occurred. …….

96In Re Canada Safeway (supra) Arbitrator Ponak specifically considered the difference between harassment and workplace tension. He reviewed an earlier passage from the decision above of Arbitrator Liang. At paragraphs 227-231 she said:

In these times there are few words more emotive than harasser. It jars our sensibilities, colours our minds, rings alarms and floods adrenaline through the psyche. It can be used casually, in righteous accusation, or in a vindictive fashion.

Whatever the motivation or reasons for such a charge, it must be treated gravely, with careful, indeed scrupulous fairness given both to the person raising the allegation of harassment and those against whom it is made.

The reason for this is surely self-evident. Harassment, like beauty, is a subjective notion. However, harassment must also be viewed objectively. Saying this does not diminish its significance. It does however, accentuate the difficulty of capturing its essence in any particular circumstance with precision and certainty.

For example, every act by which a person causes some form of anxiety to another could be labeled as harassment. But if this is so, there can be no safe interaction between human beings. Sadly, we are not perfect. All of us, on occasion, are stupid, heedless, thoughtless and insensitive. The question then is, when are we guilty of harassment?

97Arbitrator Ponak in Re Canada Safeway (supra) also considered the need for objective evidence in the determination of whether harassment has taken place. In his deliberations he quoted Re Nunavut and PSAC (2006) 2006 CanLII 93261 (NU LA), 151 L.A.C. 35 (Knopf) which said, at paragraph 122:

An allegation of harassment is a serious matter. It cannot be taken lightly, and the onus of proof lies with the Union. A finding of harassment can only be made if there is objective evidence to support that claim. The fact that (the grievor) honestly felt that she was being harassed, and the fact that she suffered greatly, is not enough to make this claim succeed….. The grievance is against the Employer. This grievance can only succeed if the objective evidence supports a finding that there has been abusive conduct as a result of the improper use of a power or departure from reasonable norm. …….

98It is apparent from the jurisprudence that has developed over many years that allegations of harassment are to be carefully scrutinized. That close examination of the facts is needed in order to protect the grievor if she has indeed been the target of harassment. It is equally important for her managers and coworkers if it is determined that she was not.

99The onus to show that the grievor was harassed and bullied is upon the Union. In my view, in large measure, that onus was not discharged.

100Before turning to the specific allegations it is appropriate to deal with the matter of credibility. Determining credibility is rarely an easy exercise to undertake. In this matter it is essential to make such determination because, as is apparent from the evidence, the way the grievor’s view of the workplace and its various activities and the recall of Ms. Graham was vastly different.

101The Employer urged that I should accept the evidence of Ms. Graham over that of the grievor for all of the reasons set out in Re Faryna v. Chorney. In this case, I have considered not only the grievor’s demeanor and self-interest, but I have also taken into account the views set out in the IME. In that thorough report the clinical psychologist noted that, “It also appears from the test profile and her psychosocial history that she may be manifesting a maladaptive pattern of interpersonal behaviour, perceiving and thinking.”

102As set out earlier in this decision, The clinical psychologist also noted that:

Typically, individuals with this profile are characterized by patterns of tending to make demands on others for understanding but tend to be averse to demands made on them by others. Typically they can be suspicious of the motivation of others and avoid deep emotional involvements. Individuals with this profile tend to have a poor work history and relationship problems are common. Some degree of buried hostility or anger is typical. Sometimes they may appear to be irritable, sullen, argumentative, and may tend to harbor some resentment towards authority or authority figures.

Such individuals do not tend to present with or acknowledge serious psychological problems. They tend to identify responsibility for their difficulties or problems on others or on circumstances. They may tend to evaluate themselves and their performance somewhat unrealistically. As they tend to not acknowledge or deny serious emotional problems, they are not receptive to and typically do not respond optimally to psychological intervention or psychotherapeutic intervention.

103In the cross-examination of Ms. Brown it was put to her that she had lied to the Board about the reason for her failure to attend the first appointment set up for the IME. After some evasion, her response was to concede the point but said that perhaps she testified as she did because she was embarrassed by the truth. I understand that she might have been embarrassed about the cause of her missing that appointment. However, her evidence in chief in this regard was not the truth. Her prevarication on this point is most worrisome and has caused concern about the reliability of her evidence overall.

104I have no doubt that the grievor honestly feels that she has been mistreated by a variety of people in the workplace virtually since she arrived. But, simply put, that subjective view does not square with the objective evidence. I shall review a few of the specific allegations in an effort to make clear my view in this regard.

105The grievor alleged that she was mistreated by her coworkers because she was not personally informed of a room change before a major client training sessions for clients took place and none of her coworkers went in search of her when she failed to appear in the correct room. She was adamant that this was yet another example of how she was bullied and harassed. The evidence of Ms. Graham revealed that while the room location might have changed since the previous session, all employees – including the grievor – were informed via email of the new location. Later, when Ms. Graham checked she found that the office wide calendar where all events are mapped indicated the correct location. The grievor must not have read her email or looked at the calendar. Perhaps she did one or both of those things but forgot. Yet at no point did she admit that she might have been even partially at fault. Indeed, I accept the evidence that when she finally arrived in the right room after being directed to it by Ms. Graham she loudly lashed out at her coworkers in front of clients because they did not help her. There is nothing about this situation that would have me find that the grievor was mistreated or harassed.

106The grievor referred often in her evidence to her coworkers going out for “breakfast sessions” to which she was not invited. She thought this was more bullying and harassment because she was never invited and she had to remain in the workplace doing more work than her coworkers. It was also suggested by the Union that this situation was completely ignored by the Employer. I disagree with that assertion. Ms. Graham testified that she spoke with Mr. Watts and other employees after she learned that they were taking an early break. She monitored the situation to ensure that they were not taking this early break and a later lunch period as well. It was not ignored. The employees were not ordered to take later breaks nor were they directed to stop going out together which I suspect was the result the grievor had hoped for when she complained of this situation. In any event, nothing I heard about the breakfast sessions would lead to a finding of harassment or bullying.

107The grievor was very tearful throughout her evidence but particularly so when testifying about being left without a return ride after a training session in another city. The Union urged that this was another situation when Ms. Graham failed to investigate. However, the evidence of Ms. Graham was clear that she spoke to the driver of the car the following day and was told that it was a “mix-up” and that the employee would speak with the grievor about it. Ms. Graham then put in place an organizational process to ensure such a mistake would not occur in the future. While I appreciate that the grievor felt this was another instance of mistreatment there is no evidence that the situation was deliberate. Perhaps Ms. Graham should have followed up and made sure that the employee worked out the matter with the grievor, but her failure to do so does not support of finding of bullying or harassment.

108It is interesting – and I suspect not coincidental – that some of the specific allegations raised by the grievor were situations that occurred when she was being spoken to about her conduct or work performance in the office. For example, she testified that Mr. Watts yelled when he was taking issue with the fact that her son should not be in the workplace. Further, when the grievor was told that she was not ready to be assigned the “more prestigious” files because of her communication skills and insufficient experience, she vehemently rejected that view stating that files should be distributed “fairly” and the Employer’s failure to do that is harassment. The other aspect of harassment regarding work assignment was her own workload which she said was much heavier than others. I am of the view that there was nothing in the evidence that upheld the grievor’s view that she had a greater workload than others. Further, I disagree that the assignment of files was harassment.

109The grievor and the Union relied heavily on the treatment she received at the April 15th meeting with Ms. Graham. The grievor said that she had never been so horribly treated in her life and that it was worse than some of the significant personal tragedies in her life. Again, she was very tearful throughout this part of her evidence. Ms. Graham conceded that she got frustrated when the grievor deflected the conversation from its original purpose only to raise various workplace complaints that had been raised a number of times in the past. She agreed she raised her voice though she did not think that she yelled. She forthrightly agreed that her conduct was “not appropriate for a business meeting” and that she slapped the table once. She rejected the grievor’s claim that she repeatedly pounded the table and screamed at Ms. Brown.

110I accept Ms. Graham’s account of this meeting. As she noted, her conduct was not optimal. She should neither have raised her voice nor slapped the table. That behaviour was not perfect. However, as has been stated by many in earlier decisions, perfection is not the standard. Further, I note that Ms. Graham immediately realized that she should not have slapped the table or raised her voice and she apologized at the time. I accept that the grievor was very upset by this meeting – which again was held to discuss two specific performance issues – and I am of the view that it should have unfolded differently. However, I do not think that it can be categorized as either harassment or bullying.

111The grievor said many times during her evidence that she was not allowed to return to work after her original two-week sick leave. She suggested that the Employer knowingly barred her from the workplace with the intention to make her more ill. Again, I must disagree. Ms. Graham knew that the grievor had been having issues with alcohol consumption. She was aware that when the grievor was upset she drank and for that reason she wanted to make sure that Ms. Brown was medically fit to return to work. I accept this evidence.

112The Employer has a right – indeed an obligation - to ensure that those who have been absent from the workplace for a significant period of time are medically fit to return to work. The form that was sent to the grievor for her physician to fill out was not inappropriate nor was it meant to be punitive. While I understand that the grievor took particular offense with the suggestion that she was labile, the letter and form for the physician to fill out was intended to have specific questions answered and concerns addressed. I do not find it unacceptable for the Employer to have set out the observations of those in the workplace as the basis or backdrop for specific questions that it felt needed to be answered.

113To be clear, I am of the view that the Employer did not cause the grievor to become ill in the first instance nor do I think that it caused her to be absent from the workplace longer than necessary.

114Finally, I turn to the meeting that was held at the request of Ms. McIntosh and attended by other employees including Ms. Cook and Ms. Graham just prior to the grievor’s return to work. Ms. Graham testified that she knew nothing of this meeting prior to being invited to attend. She said that the grievor’s coworkers wanted her to know of their concerns regarding Ms. Brown. They raised concerns about health issues and job performance such as her past alcohol consumption and instances when she was crying at her desk. They told her that they wanted to file a group grievance regarding a poisoned work environment. When they asked what she was going to do about the grievor, according to her evidence Ms. Graham told the assembled group that what she was not going to report to them about what “went on between me and an employee.”

115I can appreciate that learning of this meeting may well have caused the grievor concern and may have hurt her. And I am also of the view that it would have been better if the situation had been handled differently. By that I mean it would have been better if individuals took their own concerns to Ms. Graham and discussed them privately rather than in an open meeting. But that is not the situation in which Ms. Graham found herself. It seems to me that Ms. Graham was attempting to balance the disparate concerns of those employees present at the meeting and those of the grievor. I understand why she did not stop the meeting abruptly. She felt she had to listen to their concerns - at least for a short period of time - given that she was being told that the employees felt the workplace would be poisoned. According to the evidence I heard, Ms. Graham listened to the concerns without concurring or disputing the views expressed. She specifically made clear she was not going to discuss the grievor. I think Ms. Graham made the best of a bad situation that was not of her making.

116The Union urged that the Employer had an obligation to investigate whether there was a dysfunctional workplace and if the grievor was targeted as a result. It has been found by arbitrators in the past that there is no duty on employees to like each other. Human nature with all of its frailties is not left at the workplace door when employees report for work. Having considered all of the evidence in this matter I find that it is entirely possible that the grievor is not liked by all of her coworkers. The Employer cannot change that and a failure to do so is not a violation of the Collective Agreement.

117Having said that, there is no doubt that an Employer should ensure that all in the workplace are treated with civility. In meeting its obligations to maintain a safe and healthy workplace reasonable steps must be taken including investigating employee complaints. In this instance, when the grievor made her complaints known, Ms. Graham investigated. According to her evidence, which I have found credible, she spoke with various employees involved in the particular complaints. She made inquiries, monitored behaviour and coached employees when necessary. Those steps were a reasonable response. Further, it must be noted that it was not unusual that when a number of the grievor’s complaints were investigated it was found that she was – to some extent – part of the problem as happened in the incident involving bringing her son into the workplace or the location change for the training session. Moreover, I have found Ms. Brown’s evidence, including her accounts of how she was treated by others not to be wholly reliable.

118I am not prepared to say that Ms. Graham was perfect in her managing of the grievor and others in the workplace but I do find that her task in this regard was challenging and she did take reasonable steps to ensure the grievor’s health and safety.

119As has been said by many arbitrators before me, harassment and bullying are serious words. I cannot find that either occurred according to the evidence before me. It seems to me that the grievor often viewed her treatment at the hands of others unrealistically. She failed to take any responsibility for her actions which may have contributed to how matters unfolded. Ms. Brown testified that she was “repeatedly” harassed and bullied in the workplace over the entire period of her employment and yet the above examples were the only evidence proffered.

120While there is no doubt that subjectively Ms. Brown felt others “repeatedly” slighted her in the workplace, an objective review does not sustain a finding of harassment.

121For all of those reasons, this aspect of the grievance filed by Ms. Brown fails.