GSB# 2017-2152; 2017-3487; 2017-3488

UNION# 2017-0551-0030; 2017-0551-0044; 2017-0551-0045

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Szkok)

Union

• and -

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

Employer

BEFORE

Brian McLean

Arbitrator

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

September 5, 21, November 1 and December 4, 2018

DECISION

1This award determines grievances filed by the Union about a letter provided to the Grievor. It is asserted that the letter and certain conduct was discriminatory and harassing. The Board held hearings over several days during which the parties presented their evidence and argument.

THE FACTS

2For a number of years the Grievor was a probation and parole officer (“P.O.”) working out of the Scarborough office of the Ministry of Community Safety and Correctional Services. The Grievor enjoyed being a P.O. She testified that she “felt like she was being paid to do a hobby”. From all accounts, she was a dedicated employee who was excellent at her job and contributed to the office community by volunteering for projects such as the United Way drive and by sitting on workplace committees. The Grievor was one of two or three P.O.s at the office who was assigned to supervise offenders who had been convicted of sexual offences involving children.

3The Scarborough office was, at the time of these events, managed by Area Manager Jolyon Thompson. Mr. Thompson had taken over as manager in or about February, 2016. He supervised approximately 35-37 staff, including P.O.s and support staff. The Grievor testified that she had a strained relationship with Mr. Thompson even before the events which gave rise to the grievances.

4The Grievor testified that she generally went to colleagues for advice when she had questions or was uncertain about what to do in a particular case. In the office were several colleagues with considerable experience, including Dev Gebodh who had been with the Ministry since 1986 and in the Scarborough office since 1991. He also held positions with the Union. However, in general, the Grievor supervised her offender caseload independently. One of the tools the Grievor (and other P.O.s) used in their work was the Offender Tracking Information System (OTIS). The purpose of OTIS was, among other things, to enable P.O.s to record their work activity with respect to a given offender. The records created by the P.O. in OTIS are called case notes and there is a lengthy employer policy about how case notes are to be created and for what purposes. Case notes can only be amended by the person who created them. Case notes may be provided to offender’s lawyers, prosecutors and courts. In that sense case notes may become a public record.

5The central dispute between the Grievor and Mr. Thompson concerns a letter he gave her about a work issue. There is a dispute about whether the letter is a non disciplinary counselling letter or whether it is a disciplinary written warning.

6The dispute had its genesis when Mr. Thompson was out of the office for a period of time. The Grievor was assigned to supervise a child sex offender who had been living in a community an hour north of Toronto (The North Community) and being supervised by a local P.O. there but who had recently moved to Scarborough. The Grievor immediately had concerns about the assignment because the offender had already broken rules by moving to Scarborough from the North Community without first obtaining permission from his local P.O. to do so. The Grievor had the authority to refuse to accept the transfer in such circumstances. That might compel the offender to return to the North Community and follow proper procedures to request to be permitted to move.

7Nevertheless, the Grievor did not immediately refuse the assignment. Rather, she conducted an investigation of the offender’s living arrangements in Scarborough. The offender was living with a parent in an apartment. The Grievor and Mr. Gebodh went to view the area surrounding the apartment. On examination, the Grievor was of the opinion that the apartment was too close to a children’s playground and therefore was not an appropriate place for the offender to live. Mr. Gebodh, who testified on behalf of the Union, agreed with her assessment. The Grievor decided, after some consultation with colleagues, that she would refuse the assignment, as was her right as a P.O. However, the assistant manager, in Mr. Thompson’s absence, advised her to wait to make a final decision until Mr. Thompson returned to the office, which the Grievor agreed to do. In the meantime, the Grievor contacted the offender’s supervising P.O. in the North Community in order to start the process of getting consent for the move to Toronto.

8On July 14, 2017 the Grievor emailed Mr. Thompson and described the investigatory work she had done as well as the conclusions she had arrived at following that work. She asked to meet with him on his return. The two met and Mr. Thompson had a different view of how best to deal with the offender. He believed that the offender’s decision to move in with his parent should be supported and that the Grievor should accept the assignment. They had a discussion about the situation in which the Grievor strongly maintained her position. Eventually, Mr. Thompson, as her manager, directed the Grievor to take the assignment.

9On July 20, 2017 the Grievor wrote Mr. Thompson the following email:

Hi Jolyon, a friendly reminder that as per our meeting yesterday regarding the case below kindly make a notation on OTIS that I had PTI concerns and that you directed me to supervise the case. I am expecting the client shortly and am awaiting your documentation to accept the case.

10Mr. Thompson responded the next day as is set out below. The first paragraph of his response is central to the dispute in this case.

I have entered a case note that we had a case consultation. However, we do not case note anything that would call Ministry policy or the actions of Ministry staff into question as per case recording standards.

I acknowledge your concerns in having this SO [sexual offender] living next to a park and recognized your diligence in checking on the appropriateness of his residence location. You explained that the case notes reflect that the originating PPO confirmed that the offender could live with his mother after the offender had to leave his residence in the area at short notice. You made it clear that you would not have approved that the offender reside with his mother given the proximity to a park and wanted to deny the PTI. However, the offender is now living in your catchment area, with this corroborated, and must be supervised.

I indicated that the approval of the current residence was not your decision and that you can document sharing your concerns about the appropriateness of this SO living next to a park with him. Also I suggested that you work with him to find a more suitable residence location. Given that you noted the offender has not had a sexological assessment I suggested you supervise him as being at high risk until such an assessment is completed and more is known especially given his proximity to the park. My suggestions included more frequent reporting and collaterals which can include his mother and the police. I also indicated that it would be appropriate for you to direct this offender to not attend the park since one of his probation conditions allows for this.

You said you were not comfortable supervising this offender and I acknowledged this but transferring the case to another PPO at the Scarborough P&P office as you wished does not address the concerns you have raised. Instead your experience supervising SOs as well as mitigating the risk of this SO reoffending would be the best approach. If the SO does not have another place to live currently and were to end up living on the street or from place to place it may increase his risk to the public. Given the circumstances it would be better to supervise him closely and not from [the North Community] and work towards a residence in a more suitable location.

Thanks for your anticipated work on this case.

11The Grievor testified that after receiving Mr. Thompson’s email she felt she was in something of a quandary. She believed that Ministry policy mandated that she record in OTIS the reasons that she had agreed to accept the transfer. She was also concerned that if something bad were to happen with the offender (such as he reoffended against children in the park near his residence) she could be blamed without something in OTIS explaining why she had accepted the transfer and the offender’s living arrangements. She discussed the matter extensively with Mr. Gebodh and decided to enter the following entry into OTIS on July 24, 2017:

Email sent to AM Thompson and AAM Toomey on Friday, July 14, 2017 at 1749hrs, advising that this writer has concerns re. the Scarborough address and was declining the PTI. However, after having the case conference with AM Thompson on July 19, 2017, this writer was directed to supervise the case by AM Thompson.

12Mr. Thompson learned of the OTIS entry and became concerned that the Grievor had violated the direct order he made to the Grievor on July 21 where he responded to her request that he enter a note into OTIS setting out that she had concerns but that she had been directed to take the case anyway. Accordingly, on August 16, 2017 he sent the following letter to her:

Please be advised that a meeting has been scheduled with you for Tuesday August 22, 2017 at 10 am at the Don Mills P&P boardroom. The purpose of this meeting is to discuss two allegations.

1. That you made a case note entry in “[Offender’s]” Offender Tracking Information System (OTIS) case notes on July 24, 2017 indication that “this writer was directed to supervise the case by AM Thompson”. Under the OTIS Policy and Standards Manual, only offender specific information is to be entered into OTIS. This entry is a violation of that policy as well as the Code of Conduct and Professionalism Section One- On Duty Conduct Standard One and Section Three Specific Infractions- Standard One Irresponsible Discharge of Duties.

2. Secondly, on July 21, 2017 I advised you in writing that you were not to make comments in OTIS regarding actions of Ministry staff or Policy. Despite this direction, on July 24, 2017 you made the above-noted comment in “[Offender’s]” OTIS case notes. This behaviour constitutes insubordination.

13The investigatory meeting was eventually held and Mr. Thompson explained his concerns and the Grievor explained that she felt that policy required her to make the OTIS entry. Following the meeting Mr. Thompson provided the Grievor with the following letter on September 13, 2017:

RE: Letter of Counsel

On August 24, 2017 you attended a meeting at the Don Mills Probation and Parole Office accompanied by your union representation, Mr. Jason Glover. I, along with Keri O’Brien, Human Resources Advisor, were also in attendance. The purpose of this meeting was to allow you an opportunity to respond to the following allegations:

1. That you made a case note entry in “[Offender’s]” Offender Tracking Information System (OTIS) case notes on July 24, 2017 indication that “this writer was directed to supervise the case by AM Thompson”. Under the OTIS Policy and Standards Manual, only offender specific information is to be entered into OTIS. This entry is a violation of that policy as well as the Code of Conduct and Professionalism Section One- On Duty Conduct Standard One and Section Three Specific Infractions- Standard One Irresponsible Discharge of Duties.

2. Secondly, on July 21, 2017 I advised you in writing that you were not to make comments in OTIS regarding actions of Ministry staff or Policy. Despite this direction, on July 24, 2017 you made the above-noted comment in “[Offender’s]” OTIS case notes. This behaviour constitutes insubordination.

This meeting was also an opportunity to provide the Employer with any other information, including any mitigating factors that you wanted taken into consideration.

During the meeting, you did not dispute the fact you made a case note entry in offender’s Offender Tracking Information System (OTIS) case notes on July 24, 2017, which indicated that you were directed to supervise the case by your Area Manager.

In response to the first allegation, you stated that you needed to justify your decisions and your actions in your case notes, as issues may become contentious. Further to that, you said if you can’t indicate why you’ve made a decision or why you have not accepted a case in OTIS, you can’t justify your decision. You indicated that you believed you were following policy. You referenced various subsections of the Probation and Parole Conditional Sentence Policy and Procedures Manual to support your assertion that your entry into OTIS was specific to the rationale to support the enforcement decision.

In response to the second allegation, you stated that you didn’t feel as though my directions were clear. You further noted that you were acting in good faith when you made your case note entry and it was not your intention to call into question the actions of a ministry employee despite noting in OTIS that you were “directed” to supervise the case.

In reviewing this matter, I have considered the information available to me, your responses to the above noted allegations as well as your employment history. Although I find that the allegations against you are substantiated, it is my decision to issue you a letter of counsel.

Your disregard for my guidance and direction was disrespectful and constitutes insubordination. As an employee of the Ministry of Community Safety and Correctional Services, it is my expectation that you will conduct yourself in a respectful and professional manner consistent with the principles outlined in the Ontario Code of Conduct and Professionalism policy.

I would like to take this opportunity to remind you of my expectations regarding your compliance with the OTIS Policy and Standards Manual. In the future, please ensure that only offender specific information is entered into OTIS case notes and should you require any assistance in determining appropriate content, please do not hesitate to speak with me for clarification.

This letter is not disciplinary in nature, rather it is intended to be a letter of counsel and to clarify the Employer’s expectations regarding your adherence to the aforementioned policies, procedures and standards.

14The Grievor filed a grievance regarding the letter asserting it was unjust discipline. In addition, she also filed other grievances alleging that she had been the victim of harassment by Mr. Thompson in the months preceding the main incident. The incidents the Grievor alleges constitute harassment were:

1. A statement made by Mr. Thompson at a meeting

2. The request by Mr. Thompson that the Grievor take on certain cases after another P.O. expressed reluctance to do them

3. The email sent by Mr. Thompson to all employees after the Grievor left the department some time after receiving the letter.

The Meeting Incident

15The Grievor relies on the events that occurred at a meeting held in January 2017. The meeting was chaired by Mr. Thompson and was drawing to a close when there were discussions about the scheduling of the next month’s meeting and a date was proposed. The Grievor indicated she was going to be away on vacation on the proposed date.

16The Grievor testified that at that point Mr. Thompson said something to the effect of “Oh to be young and rich again”. The Grievor felt embarrassed and belittled by the comment. She felt that it undermined her value as an employee by making her seem young and frivolous. She felt that it reflected a discriminatory attitude about her age and the fact that she is a woman.

17Paulette Joseph, a P.O. and Union steward in the Scarborough office, was present at the meeting and was called as a witness by the employer. She said that the meeting was light hearted when the Grievor said that she was going to be on vacation on the proposed date. Ms. Joseph said something to the Grievor like “Again? Where are you going?” The Grievor replied to Ms. Joseph something like “That is none of your business”. Mr. Thompson then chimed in with his “young and rich comment”.

18Ms. Joseph testified that while she felt embarrassed by the Grievor’s comment directed at her, she did not think anything of Mr. Thompson’s comment. However, she acknowledged that the Grievor had come to see her after the meeting and had asked her whether she thought the comment was improper. Under cross examination Ms. Joseph testified that when the Grievor came to her to ask about Mr. Thompson’s comment she believed that she was being asked as a co-worker and not as a steward. Ms. Joseph also testified that she had not told the Grievor that her “none of your business” comment had hurt her and had not made any complaint to management about it.

The Child Sex Offenders Request

19As was discussed at the outset, the Grievor was one of two or three POs in the office who supervised sex offenders involving children. The Grievor primarily shared the sex offender caseload with another P.O. who left the office in November 2016. The Grievor was given several of the cases which the other P.O. had carriage of. Effectively, therefore, she had a double sex offender caseload. There was more and more work and she was extremely stressed.

20The Grievor testified that although the cases challenged her, they also had an effect on her because she was required to deal with offenders who had done such terrible things. She started to think that everyone was a terrible person. She also had relatives with children which affected the impact of these cases on her.

21At the end of 2016, one of the other P.O.s who occasionally supervised child sex offenders went on a parental leave. He indicated to Mr. Thompson that under the circumstances he would prefer not to supervise child sex offenders on his return. Mr. Thompson wished to accede to those wishes and so sought someone else in the office to take over the five or six offenders he had been supervising.

22In or around January 2017 Mr. Thompson asked the Grievor whether she would be willing to take the cases. The Grievor was angered by the request. She said that she did not want to take the cases since in her view a “case is a case” and it would be inappropriate to allow employees to pick and choose which cases they wanted. She testified that she was also upset because Mr. Thompson assumed that she, as a single person, would not be affected by the cases and that the other P.O.’ s family status took precedence over her well being. Mr. Thompson did not press the issue and did not direct her to accept the assignment. The offenders were ultimately assigned to other P.O.s.

23Mr. Thompson testified that he did not know whether the Grievor was married or single or whether she had children. The Grievor acknowledged in her evidence that there is no reason why he would know about her family status.

The Departure Email

24Soon after receiving the letter the Grievor began to look for another public service position, believing that Mr. Thompson wanted her to be fired. She was successful in obtaining a position with the Toronto Guns and Gangs unit which would take her out of the Scarborough office. On November 9, 2017 at 11:42 a.m. Mr. Thompson wrote the following email to announce to the office that she was leaving:

Hello Folks,

Please see below email from AM Andrew Burston indicating that Adrienn Szkok has accepted a temporary assignment at the TAGGU West office beginning December 4^th, 2016. Best wishes to Adrienn on her new assignment.

Further staffing updates will follow.

25The Union put into evidence numerous emails written by Mr. Thompson when other employees in the office were departing. Typical of them were the following examples:

S’s last day with us will be on Friday June 17. I want to thank S for her work and contributions to our office sharing her technical skills, assisting with social events and with Federated Health to date. Best wishes in your new assignment.

Thanks to M & R for their many years of service in keeping our community safe and assisting in the rehabilitation of the clients they supervised. Thanks also to their contributions to the Scarborough P&P office including R’s longstanding (25 years) as volunteer coordinator that involved influencing many folks to enter the field of Corrections. Your colleagues and friends will miss you dearly and wish you well in your new endeavours.

I want to thank C for her contributions to our office over the last five months. Her pleasant disposition, soft spoken demeanor and initiative will be missed. C has been required to return to her home position...Her last day with us will be Friday...

26The Grievor testified that she felt belittled by the email sent by Mr. Thompson about her impending departure because it was so much less complementary than the ones written for other employees. She believes it was a continuation of Mr. Thompson’s ill treatment of her.

27Mr. Thompson acknowledged in his evidence that the email he sent out announcing the Grievor’s departure was not as complementary as he would have liked and as he has written for other departing employees. However, his evidence was that there is a completely benign explanation for the tone and content of the email. He testified that he believed he had an arrangement with Mr. Burston (head of the Guns and Gangs unit which the Grievor was joining) to write a joint or coordinated announcement of the Grievor’s departure from the Scarborough office and her arrival at the Guns and Gangs unit. However, on November 9, 2017, while he was engaged in a telephone call, he began to see several emails from employees, on which he was copied, congratulating the Grievor on her new position. He felt blindsided, surprised and annoyed that Mr. Burston had made the announcement without involving him as he believed they had agreed.

28Mr. Thompson decided that he needed to act right away to formally confirm the news to the Scarborough office and quickly wrote the email. He acknowledges that the email was not as detailed or as glowing as he had made for other employees but that he meant no ill will towards the Grievor. The content of the email reflects the fact that he wished to write an email as soon as possible so that employees in the office did not think they were getting the news second hand. As a result, it was not as detailed or as complimentary as emails he sent on other employees’ departures. He also noted that he had been quite complimentary of the Grievor to Mr. Burston when the Grievor was applying for the new position.

29After writing the departure email Mr. Thompson wrote to Mr. Burston to express his annoyance: “Hey I was hoping for a heads up on this. I am glad I looked at my e-mail since I am in the middle of something else.”

30Under cross examination, Mr. Thompson was questioned about the length of time it would have taken to write a couple more sentences which could have described the Grievor’s contributions to the office and her professional work. Mr. Thompson acknowledged that would not have taken long to do, but that he was annoyed and his mind was focused on getting something out to his people as soon as possible.

Aftermath

31As noted, the Grievor left the Scarborough office to take a position with a Guns and Gangs unit. She testified that she had lost her zest for being a P.O. as a result of her treatment at the hands of Mr. Thompson. At the time of the hearing she had moved on from the Guns and Gangs unit and was working out of the office of an Assistant Deputy Minister on a temporary assignment and was in the AMAPCEO bargaining unit. However, her home position remains as a P.O. in the OPSEU bargaining unit with the Scarborough office as her home location.

DECISION

32The Union argues that the above facts demonstrate that Mr. Thompson has engaged in a pattern of harassing and discriminatory behaviour against the Grievor. It is submitted that the Grievor has suffered greatly as a result of this conduct and, as a result, left a job that she loved.

33A useful starting point of the analysis of the circumstances before me is the letter from Mr. Thompson to the Grievor dated September 13, 2017. But for this letter it seems unlikely that the Grievor would have filed grievances about the other events at issue in this case. The letter was the impetus both for the grievance about the letter and the complaints filed about the other events.

34I am satisfied that Mr. Thompson issued the letter because he believed that the Grievor had disregarded his direction when she put the note in OTIS on July 24, 2017 and for no other or improper discriminatory or harassing purpose. There is no evidence that the events relied on by the Union were motivated by antipathy towards the Grievor by Mr. Thompson. I am satisfied that he was not “out to get” the Grievor given his testimony and the fact that no motivation for him doing so has been suggested (keeping in mind that no grievances had been filed about the incidents at the point the letter was issued). The decision by Mr. Thompson to not (at least in his mind) discipline the Grievor but merely issue a letter of counselling is supportive of this conclusion.

35But was the letter disciplinary, despite the fact that it was labelled a “Letter of Counsel”, was said to be “not disciplinary in nature”, and was “to clarify the Employer’s expectations”? In my view it was.

36The Employer relies primarily on OPSEU v. The Crown (Barillari grievance) (Dissanayake) GSB#2001-1829, 2002-2390 [2006]. In that case the Employer issued letters to the Grievor, labelled as letters of counselling, instructing her not to engage in religious based discussions in the workplace and labelled her conduct towards certain clients “objectionable”. The letter also advised that that it was not disciplinary and would not be placed in her personnel file. The Union argued the letters were disciplinary while the Employer argued as letters of counselling they were not subject to the arbitrator’s jurisdiction. Arbitrator Dissanayake stated:

In Re Black 885/90 (Dissanayake), the issue before the Board was whether a memorandum issued to the Grievor was disciplinary. A unanimous panel of the Board at p. 6-7 wrote:

In this case, the memorandum on its face is not disciplinary, in that it does not purport to punish the Grievor for his conduct on March 21, 1990. The evidence about what occurred at the meeting clearly is that the employer expressed concerns about the Grievor’s conduct on that day and explained to him that he should not engage in similar conduct in the future. The fact that the employer emphasized that any future incident of this nature will be considered insubordination and appropriate disciplinary action will be taken (a fact confirmed in the memorandum) by itself does not make the meeting or the memorandum disciplinary in nature. The memorandum was not placed it the Grievor’s personnel file.

At p. 8 the Board observed:

While some employees, like the Grievor, may not like verbal or written communication by supervisors about their conduct or performance, the employer does have the right to correct employees through guidance, counseling or even warning, without engaging in disciplinary action. The exercise of that right is to be encouraged rather than discouraged. On the other hand, the Board can understand the concern of an employee that a document may be used against him in future disciplinary situations despite verbal assurances to the contrary. This may well be possible if there is a turnover in management. The employer could probably have avoided this concern if it stated in the memorandum itself that it does not constitute discipline.

I have no doubt that the Grievor was distressed that the employer saw fit to issue her the letters which were critical of her conduct. However, that cannot be and is not the test. Nor is the fact that the letters pointed out that the Grievor’s conduct was inappropriate and directed her to conduct herself appropriately suggestive of discipline. The uncontradicted evidence is that in the presence of a union representative, the employer assured the Grievor that the letters would not be disciplinary. Also uncontradicted is the fact that the letters were not at any time placed in the Grievor’s personnel file. As far as the letter of counsel about racial profiling even the concern referred to by the Board in Re Black (supra) does not arise, because this employer did exactly what the Board suggested, i.e. stated in the document itself that it does not constitute discipline.

Certainly, if the Grievor repeats the conduct which was the subject of the letters, the employer may take disciplinary action, as union counsel suggests. In that event the employer will be obligated to establish just cause in the event the discipline is grieved. However, that does not have any relevance to whether the letters are themselves disciplinary. The employer is entitled to initially attempt to correct an employees’ conduct in a non-disciplinary way. As the Board observed in Re Black, this is to be encouraged. If the non-disciplinary approach does not produce the corrective results, it is open to the employer to initiate a disciplinary response. The non-disciplinary directions, letters etc. will not form a step in the progressive discipline system, but may well serve to establish that the Grievor was made aware of the employer’s expectations of the employee, should that be in issue.

With regard to the letter dated October 16, 2002, it is irrelevant whether the Grievor or Ms. Cirilli was correct about the need for a written request in the particular circumstances. The issue is whether in dealing with the situation the Grievor acted inappropriately. Ms. Cirilli clearly and unequivocally testified that the Grievor pointed to the fact that the two dependents had foreign last names in referring to the possibility that terrorism may be involved. Ms. DesRoches testified to the same effect about her conversation with the Grievor. In chief the Grievor stated that she could not recall whether she referred to the dependents’ foreign last names in those conversations. Under cross-examination, the Grievor again maintained that she could not recall whether she made reference to the last names. In light of that evidence, I find that the Grievor did link the two individuals’ foreign last names to the possibility of terrorism. The Grievor expressed that she was offended by the employer’s allegation that she had engaged in “racial profiling”. Whatever the Grievor’s definition of ‘racial profiling” may be, I find that the employer was reasonable in concluding that it was inappropriate to consider in any manner the fact that a person had foreign last names in relation to any decision, and the employer was entitled to give directions to that effect. Even if I had found that the letter was a disciplinary letter of reprimand as the union claims, I would have held that there was just cause for such discipline.

However, I find that the two letters before me are clear examples of a non-disciplinary response by an employer. Therefore, the Board has no jurisdiction to embark on a just cause inquiry.

37The employer also relies on the GSB decision of Moss (GSB#2011-0560, 2011-3978) (Briggs) [2013]. In that case the employer provided the grievor a letter which directed him to attend an allegation investigatory meeting and stated that his conduct “further demonstrates an act of insubordination”. Vice-chair Briggs reviewed the cases which set out the factors arbitrators consider in determining whether a letter is counselling or disciplinary in nature (and which are set out below) and concluded that as the letter was non-disciplinary as it was simply an invitation to attend an allegation investigation meeting.

38The Union relies on cases, referenced above, in which arbitrators have set out a list of factors which may be considered in assessing whether a letter is disciplinary or not. It argues that, on balance, an assessment of those factors here compel the conclusion that the letter is disciplinary. For example, in the Dufferin-Peel award [1998] O.L.A.A. No. 887 of Arbitrator Knopf, they are listed [at page 5] as:

1. Whether the employer intended to impose discipline;

2. The impact upon the employee’s career;

3. The employ[er's] stated intention as to whether the document would be relied upon to support disciplinary action in the future;

4. Whether the alleged incident could amount to culpable behaviour;

5. Whether there was an intent to punish or correct undesirable behaviour through the imposition of the sanction;

6. Whether the substance of the document is an expression of employer disapproval (non-disciplinary) or a punitive measure intending to correct (disciplinary);

7. Whether the document sets out standards to meet in the future and is prospective in nature (non-disciplinary) or has an immediate effect upon the Grievor (disciplinary).

In Halton Community Care Access Centre v. OPSEU, L. 274 (2006) 2006 CanLII 93283 (ON LA), 149 L.A.C. (4^th) 340 (Briggs), there is another list:

1. the degree to which other relevant correspondence and surrounding circumstances help the arbitrator interpret the memo;

2. whether the memo was specifically directed at particular employees;

3. whether the letter referred to possible disciplinary action if the conduct persisted;

4. whether the letter suggested that the employee's action[s] were ill-founded or improperly handled;

5. whether the language used in the memo refers to communications expectations rather than the identification of concerns or unacceptable or insubordinate behaviour possibly warranting discipline in the future;

6. whether the purpose appears to have been to correct undesirable behaviour by specific employees;

7. whether the employer addresses its concerns in a supportive manner and whether any support is offered to improve the perceived problems;

8. whether the memo itself is in a disciplinary format.

39None of the cases provided to me suggest, as the Employer argues, that there is a “rule” at the GSB that if the Employer indicates a letter is counseling and is not disciplinary and if it is not placed in the Grievor’s personnel file, an arbitrator is without jurisdiction to adjudicate a grievance about the letter. Each case must be decided on its own facts having regard to the various factors described by arbitrators as set out above.

40In this case there are a number of factors which suggest the letter is non-disciplinary in nature. It is marked as a letter of counseling and is specifically stated to be non disciplinary. There was some evidence that the letter would not be placed in the Grievor’s personnel file, although it was less clear whether the letter might be kept in some other file. I note that the letter does not say that it will not be placed in the Grievor’s personnel file and that the collective agreement now provides a “sunset” clause for non disciplinary letters.

41While I accept Arbitrator Dissanayake’s comments that the right of the Employer to counsel rather than to discipline is to be encouraged rather than discouraged, I also note that the effect of that is the Grievor is not able to challenge findings made against her. Where, as here, those findings are in relation to critical employment obligations, it may be unfair to the employee to deprive her of the right to grieve. In this case the letter states “Your disregard for my guidance and direction was disrespectful and constitutes insubordination”. That is a finding that is critical in relation to an employment obligation and there is no assurance that the letter will not be included in her personnel file. I note that one of the factors identified by Arbitrator Briggs in Halton Community Care was whether the language used in the memo refers to communications expectations rather than the identification of concerns or unacceptable or insubordinate behaviour possibly warranting discipline in the future. In this instance the Employer identified the Grievor’s behaviour as insubordinate and criticized it harshly. In my view the employer’s letter was therefore in all of the circumstances disciplinary.

42Having determined that the letter is disciplinary I must next turn to whether there was just cause for the issuance of a written warning in this case. In my view there was. In coming to that conclusion I need not review all of the arguments advanced by the Union about why the Grievor was justified, or even required, by policy to put the note in OTIS that she did. There may well be some support for her position and it may also be that the note does not blatantly “call ministry policy or the action of ministry or agency staff into question”. However, it is clear that Mr. Thompson directed the Grievor in writing not to make a note in OTIS as she proposed. Her email of July 20 was a request to make the very note that she eventually made and Mr. Thompson’s response was a clear direction not to make that note which I am satisfied the Grievor understood.

43Rather than comply with that direction and, if she wished to contest it, file a grievance or go above Mr. Thompson to seek further guidance, the Grievor, as the letter states, disregarded his direction. Moreover, this was not a spur of the moment action but was made on careful reflection after some time. I appreciate that the Grievor genuinely believed that the note was necessary and required and that she was concerned for her own reputation if the offender re-offended. However, this does not mean that she can take matters into her own hands. The duty to follow directions of a supervisor is a fundamental duty of an employee. The Grievor, is this instance, did not comply with that fundamental duty.

44Accordingly, the grievance with respect to the letter is dismissed. In dismissing the grievance I am not, as the Union argues, imposing disciplinary measures and thereby usurping the role of the Public Service Commission contrary to the Public Service of Ontario Act. Incoming to my decision I am not imposing discipline but, rather, I am finding that despite its intentions the Employer, by its letter, disciplined the Grievor. It is my further conclusion that there was just cause for the discipline that was imposed.

DISCRIMINATION AND HARASSMENT

The Child Sex Offender Assignment Request

45The Union argues that Mr. Thompson’s decision to ask the Grievor to take on the additional child sex offender files was consistent with Mr. Thompson’s treatment of the Grievor generally. Mr. Thompson improperly took into account her co worker’s family status when it asked her to take the files on. This amounts to discrimination against the Grievor on the basis of family status contrary to the collective agreement and the Human Rights Code.

46The starting point of my analysis is the undisputed evidence that Mr. Thompson was unaware of the Grievor’s family status; he did not know whether she was married or whether she had children. That fact means that he could not have knowingly discriminated against her. He took no action against her because of her family status. In addition, he merely asked her if she would take on the files and when she declined to accept them she suffered no adverse consequence. There is no violation of the Grievor’s human rights in such circumstances.

47Finally, I do not accept the union’s argument that because Mr. Thompson took into account the other employee’s family status, the Grievor’s rights were violated. As already noted, the mere fact of asking her to take on the files is not an adverse consequence or treatment. Moreover, the employer received a request from another employee and attempted to accommodate that request by asking if the Grievor, who was skilled in dealing with that kind of offender, would take his cases. There is nothing inappropriate about this approach.

The Departure Announcement Email

48There obviously is no right to receive a particular kind of email, or any communication at all, on one’s departure from a workplace. However, I acknowledge that a perfunctory email or one that is inconsistent with other emails sent by the author in similar circumstances might be evidence of bad faith and might constitute part of a pattern of bullying. I also am satisfied that while courteous to the Grievor, the email sent upon her departure is less effusive than other emails that Mr. Thompson has written on the departure of other employees from the office. That being said, I accept Mr. Thompson’s explanation for the way that the email was written. It is clear from his email to the other manager that he was irritated that the emails announcing the Grievor’s new assignment had not been coordinated, with the result that his employees were notified of the Grievor’s news by someone other than him. In my view it is obvious that a manager would always want to notify employees about such news first. In these circumstances it is entirely reasonable for Mr. Thompson to have wanted to write an email as quickly as possible with the result that it was not as detailed or glowing as it otherwise would have been. There is no doubt that Mr. Thompson could have taken a little more time and written a more complimentary email, but the fact that he did not do so in these circumstances is a reflection of his feelings of irritation at the time (towards the other manager) and his desire to communicate the information quickly rather than to any animus he felt towards the Grievor.

The Meeting

49With respect to the meeting incident, the union argues that Mr. Thompson’s statement demeaned the Grievor. It portrayed her as a young, inexperienced woman and undermined her competence in the view of her co- workers who were present at the meeting.

50In my view it is entirely possible that a manager might in the right circumstances be found to have bullied, harassed or discriminated against an employee by calling them “young” or by making a statement suggesting an employee is “young and rich”. Such statements might, in certain circumstances, be found to be deliberately demeaning to an employee especially to an employee in a historically disadvantaged group. Such statements can be a kind of code (a “dogwhistle” in the current vernacular) that everyone in the dominant group understands to be diminishing. That is certainly the way the Grievor understood Mr. Thompson’s comment as is demonstrated by the fact that she went to see Ms. Joseph following the meeting to see if she also found the comment offensive.

51However, in these circumstances I see no reason for the Grievor to have been offended by the comments as they were clearly not meant to be and were, objectively in the circumstances, not demeaning to her as a person of a given age or as a woman. The circumstances were that Ms. Joseph had acted somewhat rudely to the Grievor by expressing her astonishment that the Grievor was going on vacation. The Grievor then responded in a way that was also somewhat rude. Mr. Thompson attempted to alleviate the awkwardness of the moment by making a self deprecating joke- he was no longer as young and could not afford to travel as much as he did when he was young. The joke might not have been the best idea to resolve the awkward moment but it does not mean that he intended to harm the Grievor. In fact he clearly did not intend to harm the Grievor. In my view the comment was innocuous, notwithstanding the fact that the Grievor found it to be offensive.

52In British Columbia v. B.C.G.E.U., 1995 CanLII 18346 (BC LA), [1995] B.C.C.A.A. No. 131, 49 L.A.C. (4th) 193, Arbitrator Laing cautions against too readily labeling every inappropriate exchange in the workplace as “harassment”:

227 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.

228 Whatever the motivation or reason 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.

229 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.

230 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?

231 I do not think that every act of workplace foolishness was intended to be captured by the word harassment. 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 has been a heedless disregard for the rights of another person and it can be fairly said "you should have known better."

53In my view, objectively speaking, the words used by Mr. Thompson were at most petty or foolish. The do not amount to harassment. I accept that the Grievor was deeply upset by her interactions with Mr. Thompson. The Grievor gave evidence about why Mr. Thompson’s words may have affected her so much, which I need not set out here. However, I also am of the view that her feelings about the meeting and the request to take additional files were significantly exacerbated by the time of the hearing because she had been accused of insubordination in the letter.

54Finally, I am satisfied that Mr. Thompson did not bully, harass or discriminate against the Grievor, taking into consideration his conduct as a whole. As discussed above, there is no evidence that prior to the letter Mr. Thompson bore any ill will towards the Grievor. The meeting incident was at worst a momentarily lapse in judgement and the sex offender files request was simply a request that the Grievor take on additional work because she is skilled at that type of work. The letter given to her had nothing to do with those other events, but arose separately out of the fact that Mr. Thompson was disappointed that the Grievor did not follow his direction. There is therefore no pattern of conduct on the facts before me.

55For all of the foregoing reasons the grievances are dismissed.