GSB# 2019-0222

UNION# 2019-0542-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Del Casale)

Union

• and -

The Crown in Right of Ontario (Ministry of Government and Consumer Services)

Employer

BEFORE

Dale Hewat

Arbitrator

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Counsel

HEARING

February 12, September 28, 2020; June 17, October 1, 29 and November 30, 2021

Decision

1This decision deals with a claim by the Union that the Grievor’s Manager engaged in a course of conduct that included micromanaging, bullying, harassment and exclusion of the Grievor resulting in discrimination on the basis of disability. The Grievor has a health-related workplace accommodation in which she works at a different work location resulting in her being physically isolated from her colleagues and the management team. The Union maintains that the Manager’s behaviour caused additional stress for the Grievor which impacted her medical condition. The Union asserts that the Employer violated the Collective Agreement including, but not limited to Articles 2 (Management Rights), Article 3 (Harassment and Discrimination) and Article 9 (Health & Safety) and the Ontario Human Rights Code. The Union seeks a declaration of these violations and has asked for remedial compensation of $10,000.00 general damages.

2The Employer argues that the evidence demonstrates managerial actions were taken for legitimate business purposes. While the Employer admits that some of the managerial conduct may not have been ideal in the circumstances, the Employer states that the Union has not established objective evidence of a continuing course of vexatious conduct that would establish harassment, bullying or discriminatory actions. Alternatively, the Employer argues that if a violation is found, that any remedial award should be at the lower end of the spectrum.

The Evidence

3This hearing was held by videoconference on September 28, 2020, June 17, October 1, 29 and November 30, 2021. During the course of the hearing, the following witnesses testified: Ms. Del Casale, the Grievor, Mr. Andrew Small, her former Manager, Ms. Andrea Besco, Human Resources Business Advisor, Ms. Rae Sun, the Grievor’s Manager and Mr. Sameer Chopra, Senior Manager, Financial Control, Operations and Transformation Support Branch.

4The Grievor, Ms. Del Casale, has been employed as a Reconciliation Representative with the Reconciliation Services Unit of Ontario Shared Services with the Ministry of Government and Consumer Services (“MGCS”) for twenty (20) years. She has been an employee of the Ontario Public Service for thirty (30) years.

5The Grievor has a disability as defined by the Human Rights Code in which she has epileptic seizures which prevent her from driving and makes travelling on public transportation difficult. The Grievor’s home office location is 5775 Yonge Street in Toronto, Ontario where her co-workers and management team work. Under her approved accommodation plan, the Grievor works at an alternative work location, approximately 10 km from the home office, at 125 Sir William Hearst Ave, in Downsview Ontario, which is walkable from her home. As a result of this accommodated work arrangement, the Grievor does not see her direct manager on a day-to-day basis. Previously, in February and March, 2017, with knowledge of the Employer, the Grievor made a couple of unsuccessful attempts to take public transit to the home office but experienced exacerbated medical conditions.

6In early March 2018, Ms. Rae Sun (then Acting Manager, Reconciliation Services with the Operations and Transformation Support Branch, Financial Control Unit) became the Grievor’s direct Manager. As part of her Acting Manager orientation with Mr. Small and Mr. Chopra, Ms. Sun was advised and provided with paperwork outlining the Grievor’s accommodation plan, dated August 19, 2015 and her current Professional Development Plan (“PDP”). As Ms. Sun’s onboarding events were occurring, she held a “meet and greet” with her team members at the home office and had the Grievor attend by teleconference. Ms. Sun also scheduled in-person meetings with individual team members in order to meet them on a more personal basis. Her meeting with the Grievor took place over the phone, in which among other things, they discussed the Grievor’s accommodation plan. The meeting was cordial. Ms. Sun was not aware of the Grievor’s previous attempts to travel to the home office location. During her first couple of months as Acting Manager, Ms. Sun also followed up on the Grievor’s ergonomic assessment, by approving and having delivered an ergonomic chair and footrest to the Grievor’s work location. Ms. Sun also asked the Grievor, a few times, to provide an updated medical due to the fact that the Grievor’s accommodation plan was dated August 2015.

7Ms. Sun testified that it was her responsibility as Manager, running a unit with a high volume and time-sensitive workload, to confirm staff attendance to ensure work coverage. In addition, she stated that her managerial style could be viewed as more direct, and that it was her expectation that staff respond to her emails within 30 minutes and respond immediately to any requests from the Minister’s office. Ms. Sun admitted that she never communicated these time-line expectations to the Grievor because she assumed that the Grievor, a longer serving public service employee than herself, would know about response time and attendance expectations, therefore requiring no reminder. Ms. Sun testified that she sometimes questioned and contacted the Grievor to determine whether she was at the workplace because the Grievor either had not responded to an email or was not answering her phone. Underlying her concerns about the Grievor’s attendance at work was the fact that she “could not see” the Grievor nor was there was any other individual from MGCS at the Grievor’s accommodated work location. Ms. Sun also raised her obligation under the Ontario Health and Safety Act, to ensure the safety of employees at work, as part of the reason she would question the Grievor about being at work if she was unsure of whether she was at work.

8According to the Grievor, soon after Ms. Sun became her Manager, it became apparent to her that management, and particularly Ms. Sun, were unhappy with her accommodation plan and wanted her to relocate to the home office by asking the Grievor for updated medical documentation. In addition, the Grievor claimed that Ms. Sun began to engage in a course of micromanagement, harassment and bullying through email and phone call communications questioning, in an accusatory manner, whether the Grievor was actually at work. Although the Grievor only provided a couple of examples of email exchanges where she believed Ms. Sun questioned her whereabouts, the Grievor stated that she was questioned by Ms. Sun numerous times on the phone. She did admit that once she provided an explanation of her whereabouts on a particular occasion, Ms. Sun did not question her further. The Grievor also claimed that despite her requests, Ms. Sun never visited in person at the Grievor’s work location. In addition, the Grievor felt excluded from the workplace because Ms. Sun made no efforts to include the Grievor in staff events at the home office. While the Grievor admitted that each manager has a different managerial style, she still believed that Ms. Sun’s behaviour was targeted, at least in part, because of the Grievor’s accommodation in place.

October 11, 2018 Incident

9The Grievor alleged that on October 11, 2018, Ms. Sun accused her of lying and hiding that she was not in the office. Ms. Sun acknowledged that she had called the Grievor at work that morning but the Grievor did not answer the phone. Ms. Sun did not leave a voicemail. Instead, Ms. Sun sent the Grievor an email asking about her whereabouts. The email asked the Grievor to confirm what time she arrived on October 11, 2018 and also noted that Ms. Sun forgot to ask the Grievor what time she arrived on October 10, 2018, because the Grievor had sent her an email on October 10, 2018 noting that she was running late. In their October 11, 2018 email exchanges, the Grievor confirmed that she came into work on October 10, 2018 around 8:30 am advising that should would enter that arrival time in WIN and that on October 11, 2018 she was at work, working on reports, and questioned the urgency of Ms. Sun’s inquiry about her whereabouts. The Grievor also took offence to Ms. Sun’s suggestion that she count her late arrival on October 10, 2018 as vacation time as it was up to the Grievor to determine how to designate the late arrival. The Grievor also communicated her concern that Ms. Sun was suggesting that the Grievor was being dishonest about her arrival time at work. Specifically, the Grievor sent the following email to Ms. Sun stating:

“To answer all your questions, I was in at 6.55am this morning, its offensive to know that you think I am hiding or lying as you put it this morning as per our conversation to when I come in the morning. Also, when you called, I was in the ladies’ room or getting a beverage, not sure when you called because you did not leave a message. Please next time leave a message.” In response to this email, Ms. Sun sent the following note to the Grievor: “Sandra, I didn’t assume anything, therefore I emailed and asked. There are many ways to communicate. Emailing for example is one of them. Thank you advising you got in at 6:55 a.m. today, and providing your explanation. This is helpful. Have a great day. Rae”

10In addition to the email exchanges, the Grievor and Ms. Sun also spoke over the phone on October 11, 2018. The Grievor claimed that Ms. Sun yelled at her calling her a liar and accusing her of hiding her whereabouts, and slammed down the phone, which caused the Grievor to become very upset and stressed. In support of these allegations, the Union produced an email that the Grievor received from Helen Gurley, a home office colleague, asking the Grievor if she was okay because she heard Ms. Sun yelling at her. Ms. Gurley also shared that she felt that “this place is becoming so toxic with them watching our every move”. Under cross-examination, the Grievor acknowledged that Ms. Gurley would have only heard Ms. Sun’s part of the conversation.

11Ms. Sun testified that the Grievor arrived late at the workplace without notification of the absence or explanation of the reason on October 10, 2018. Ms. Sun agreed that, on October 11, 2018, she called the Grievor in the morning and did not receive a response, so she followed up with an email to see if the Grievor was in the office that day and to ask her how she was accounting for her time off on the day before. Ms. Sun stated that after receiving the email, the Grievor called her to advise that she was upset about the email using a tone that was interrogating and accusing her of believing the Grievor was hiding something. While Ms. Sun admitted that she speaks loudly and is a confident speaker, she denied yelling at the Grievor, slamming down the phone and accusing her of being untruthful about being at work. Of note, was that Ms. Sun became defensive under cross-examination, challenging the meaning of “slamming the phone”, which she denied doing in any event. According to Ms. Sun, it was the Grievor who was yelling at her over the phone and that if she did raise her voice back, this was done in order to speak over the Grievor to get control of the conversation. Ms. Sun maintained that this was not the first time that the Grievor had raised her voice in a phone conversation between the two of them. She also noted that Ms. Gurley would have only heard Ms. Sun’s side of the conversation because Ms. Gurley sat in close proximity to her. In addition, Ms. Sun questioned Ms. Gurley’s motivation for sending the email to the Grievor, as Ms. Gurley had attendance issues which Ms. Sun believed pitted her against management.

12On October 11, 2018, the Grievor also spoke with Mr. Chopra complaining about how Ms. Sun was treating her and asked him to speak with her. As part of his follow-up Mr. Chopra contacted Ms. Besco seeking guidance on how to proceed. In his October 11, 2018 email to Ms. Besco, Mr. Chopra remarked that based on that information provided by the Grievor, he did not find that Ms. Sun’s questions were misplaced. He observed that during the call with the Grievor, he found her tone to be disrespectful, condescending and intimidating towards Ms. Sun when she made comments like “who does she think she is”, “she needs to settle down”, “I will not be talking to her again”. He also shared some of his views that from his perspective the Grievor had, in the past, made accusations without supporting evidence, refused to follow rules that apply to OPS employees and has threatened to file grievances if she didn’t get her way.

13Ms. Besco replied to Mr. Chopra in an email dated October 12, 2108 in which she suggested that he follow up with Ms. Sun and advise the Grievor that he would like to speak with her too. Ms. Besco suggested that he share Ms. Sun’s rationale for asking the Grievor what time she arrived and also remind the Grievor about Ms. Sun’s accountability as a manager for attendance management. In addition, Ms. Besco advised Mr. Chopra to remind the Grievor about respectful workplace communication.

14On October 19, 2018 Mr. Chopra had a meeting with the Grievor to discuss her concerns. After the meeting he sent an email, on October 23, 2018, to Ms. Besco, from Human Resources, sharing a summary of his discussion with the Grievor, his thoughts about proposed next steps, and requesting advice on how to proceed with the Grievor and Ms. Sun. In that email, Mr. Chopra described how his discussion with Grievor started out very confrontational. He recalled how the Grievor, without any explanation, accused Ms. Sun of bullying and harassing her claiming that she had something to hide. When asked to provide copies of the emails regarding October 11, 2018, Mr. Chopra stated that the Grievor would only read him chosen portions of the emails but would not share them, suggesting he get them from Ms. Sun. The Grievor also told Mr. Chopra that she believed that she was only required to provide notification of absence and did not have to tell management the reason for an absence or late arrival. Mr. Chopra also shared that he reminded the Grievor about using a reasonable tone of voice with him and about the importance of management being accountable for the whereabouts of all employees and for approving all absence requests. He concluded his email noting that the conversation ended on a better note, with the Grievor calming down and suggesting that she could send an email to Ms. Sun notifying her arrival time at the office, which was a practice she had done in the past with a previous manager. In terms of next steps, Mr. Chopra stated that he first wanted to speak with Ms. Sun to get her perspective of the situation with the Grievor and then follow up with a call with them to review how to better manage best practices for attendance management. He also advised Ms. Besco of his desire to circle back with the Grievor and Ms. Sun within a couple of weeks.

15In her testimony, Ms. Besco confirmed that she did not send a written response to Mr. Chopra’s October 23, 2018 email but thinks they may have had a follow-up call, but had no further involvement beyond that. Mr. Chopra recalled that after he spoke with Ms. Del Casale on October 19, 2018, he decided not to ask Ms. Sun to change things because he could not find anything wrong with Ms. Sun’s emails to the Grievor. He claimed that he asked the Grievor if she wanted his assistance to discuss the matter with Ms. Sun to try to create a healthier relationship or even facilitate a conversation between the two of them, however the Grievor told him she was not ready to have a conversation with Ms. Sun. He recalled, that instead, the Grievor told him that she did not want his assistance as she would reach out to Ms. Sun directly.

16From the Grievor’s perspective, no further action was taken by Mr. Chopra regarding the allegations she raised on October 11, 2018. She alleged that approximately once per week, Ms. Sun continued to ask her whether or not she was in the workplace when she could not reach the Grievor immediately by phone. The Grievor recalled Ms. Sun’s making comments such as: “I didn’t hear from you yesterday, were you in the office?” or “I can’t see you”, the latter of which Ms. Sun denies stating.

February 21, 2019 Incident

17On February 21, 2019, Ms. Sun sent an email to the Grievor at 2:16 p.m. stating that she hadn’t heard back from her regarding a co-worker’s vacation back-up request. The Grievor did not respond right away to that email and left for the day at 3:15 p.m. Ms. Sun sent another email to the Grievor stating that she had not approved a day off for her. In reaction to Ms. Sun’s email, the Grievor believed, again, that Ms. Sun was accusing her of not being in the office because she did not immediately respond to her email. On February 26, 2019, the Grievor called Ms. Sun and asked her why she keeps assuming that if a call or email is not answered right away, that the Grievor is not in the office. The Grievor testified that she was very offended that Ms. Sun doubted her which caused her stress and lack of sleep, triggering the possibility of seizures.

18During her testimony, Ms. Sun confirmed that she sent the February 21, 2019 email and that she expected the Grievor to respond promptly. Ms. Sun explained that she was trying to get confirmation from the Grievor that she would be one of 2 staff members backing-up a co-worker who had requested bereavement/vacation leave. While Ms. Sun was aware that the Grievor started and left work earlier than other staff members, she stated that when she sent the email at 2:16 p.m. she expected the Grievor would still be at work. When the Grievor didn’t respond, Ms. Sun again questioned whether she was in the office or had left early. At minimum, Ms. Sun thought that the Grievor would have checked her email before leaving the office and at least acknowledge the email.

19Ms. Sun recalled that when the Grievor called her on February 26, 2019 that she proceeded to yell, speaking rudely interrogating Ms. Sun about why the Feb 21, 2019 email was sent. Ms. Sun further stated that whenever she would try to speak, the Grievor would raise her voice, cutting her off and preventing Ms. Sun from speaking. Ms. Sun also testified that during the phone-call, the Grievor accused Ms. Sun of being a liar.

20The Grievor also called Mr. Chopra on February 26, 2019 with respect to ongoing issues between her and Ms. Sun pointing to Ms. Sun’s 2:16 p.m. email on February 21, 2019 and also questioning why Ms. Sun included that email between the two of them, in an email chain shared with other staff regarding vacation coverage. During this conversation, the Grievor told Mr. Chopra that she wanted Ms. Sun’s behaviour to stop and she requested a meeting with Management and a Union Representative to discuss her concerns. Soon after their phone-call, Mr. Chopra sent an email to the Grievor ensuring her that he wanted to help and that he would arrange the requested meeting. He also asked the Grievor to send him specific items for discussions in advance of the meeting, but never asked her specifically why she was troubled by Ms. Sun’s communications, despite knowing the unique circumstances of the Grievor’s workplace accommodation.

21Mr. Chopra also shared notes, written on March 17, 2019, summarizing his conversations that took place with the Grievor around February 26, 2019. He explained that he had written draft notes following his interactions with the Grievor but that he did not have time until March 17, 2019 to formalize them. In his notes, Mr. Chopra wrote that when the Grievor called him on February 26, 2019, she was very upset with Ms. Sun, again accusing Ms. Sun of not trusting her by suggesting that the Grievor was not in the office. He noted that the Grievor would not share the email exchanges with him when he asked for evidence of what had occurred. He also made reference to the Grievor’s similar concerns back in October 2018, but remarked that he understood that the Grievor, at the time, backtracked on her position by telling him that she could understand Ms. Sun’s managerial perspective and that she would speak with her about developing an attendance tracking system. Mr. Chopra also noted that while the Grievor wanted him to tell Ms. Sun to stop inquiring about her whereabouts, he reminded her that, as a manager, Ms. Sun is responsible to be aware of her staff’s presence at work. In his notes, Mr. Chopra observed that what was glaring about the Grievor’s remarks was that she made negative comments about Ms. Sun’s poor communication and managerial skills, questioning how Ms. Sun could be a manager. He found these comments to be similar to those of another staff member who had also made unfavourable remarks about Ms. Sun after she won the job competition for Acting Manager over another staff member favoured by the Grievor and her colleague. In his evidence, Mr. Chopra stated that he believed that the Grievor’s negative comments about Ms. Sun showed evidence of an ulterior motive to have Ms. Sun removed as a manager.

March 12, 2019 Meeting

22On March 12, 2019 a teleconference meeting was held with the Grievor, Sanjeev Srivastava and Nancy Prescod, two Union Representatives, Ms. Sun, Mr. Chopra and Ms. Besco. The purpose of the meeting was to address the Grievor’s concerns about Ms. Sun. There was no agenda set for the meeting nor was any additional information or emails provided by the Grievor to Mr. Chopra in advance of the meeting. Unfortunately, the meeting did not go well and ended abruptly without a fulsome discussion or resolution regarding the Grievor’s allegations. The Grievor testified that the meeting was not productive or respectful. She recalled how Ms. Sun spoke rudely, in an intimidating manner to her and Mr. Srivastava by questioning his relationship with the Grievor and how often he observed the Grievor at work and how Mr. Chopra did nothing to stop Ms. Sun. The Grievor also shared that after the meeting ended a co-worker told her that Ms. Sun came out of the office crying and upset announcing in front of other co-workers that “Sandra is accusing me of harassing her”. Later that afternoon, all staff, including the Grievor, received an email from Ms. Sun advising that she had a very stressful afternoon and would be taking the next day off as vacation day to recover. The Grievor claimed that she was embarrassed by Ms. Sun’s post meeting actions since she believed that her co-workers knew that it was the meeting with the Grievor that caused Ms. Sun’s emotional reaction and her need to take the next day off work.

23Mr. Chopra recalled that the meeting began with Mr. Srivastava providing a long explanation of his background as a Union Representative followed by comments such as “As the Senior Manager, you need to take action here” as well as making a number of accusations against Ms. Sun. Mr. Chopra felt as though Mr. Srivastava was implying that Ms. Sun should be disciplined and claimed that every time Ms. Sun asked questions about the Union Representative’s role and how he knew about the Grievor’s work habits and character, that she was ignored and told such questions were irrelevant. From Mr. Chopra’s perspective, he claimed that everything Mr. Srivastava said was accusatory, including a comment that Ms. Sun “did not know how to talk” and not based on any evidence provided by the Grievor. While agreeing that Ms. Sun also spoke disrespectfully during the meeting and acknowledging that Ms. Sun may not have been knowledgeable about the Union’s role representing the Grievor, Mr. Chopra noted that every time Ms. Sun tried to speak, she was drowned out by the Grievor and Mr. Srivastava. Mr. Chopra added he found it strange that, during the meeting, he asked the Grievor for copies of her and Ms. Sun’s email exchanges, but that she refused to provide them stating that Ms. Sun should have them. He also recalled how Ms. Besco tried, unsuccessfully, to bring the conversation back to an exchange and discussion of concerns.

24Ms. Sun’s recollection of the meeting was being shocked by what she perceived as verbal attacks by Mr. Srivastava and the Grievor. She recalled that the meeting began with Mr. Srivastava accusing her of micromanaging the Grievor and causing her stress. Ms. Sun also asked Mr. Srivastava questions such as how did he know that the Grievor was working diligently at work each and every hour and how did he know all of the interactions between her and the Grievor. Ms. Sun claimed that Mr. Srivastava refused to answer her questions and that as the meeting continued, she felt that she was being put down and told she was a bad person. Ms. Sun shared that she had planned to take notes during the meeting but was unable to do so as she was constantly defending herself and became very upset. When asked in cross-examination if she had considered and reflected about the Grievor’s concerns, Ms. Sun answered that she had reflected and determined that she had done nothing wrong.

25Ms. Sun acknowledged that she was not an experienced manager but felt overwhelmed and stated that she felt like the Union and Grievor “were fed up with the stupid Chinese manager” and only wanted to file a grievance against her. After the meeting ended, Ms. Sun was crying, went back to her cubicle and was comforted by some employees who saw that she was visibly upset. Ms. Sun recalls telling staff that she had just had a difficult meeting, that she was going home early and that she sent the email to staff advising of her need to take March 13, 2019 off work to recover. Ms. Sun sent a further email to all staff on March 17, 2019 advising that she was still going through the difficulties she had on March 12, 2019 and that she was having a hard time concentrating when around people and as a result, she would be working from home on March 18, 2019. Ms. Sun also testified that subsequently, she visited her family doctor regarding the stress she experienced from the March 12, 2019 meeting and filed a WDHP complaint about how she was dealt with in that meeting.

26After the meeting ended Mr. Chopra and Ms. Besco exchanged a number of emails about follow-up including the need to seek more information from Ms. Sun to clarify the Grievor’s alleged concerns. Ms. Besco did advise Mr. Chopra that she was concerned with some of the issues that Sandra had raised and confirmed that it would be helpful to review the email correspondence that the Grievor had referenced in the meeting. Ms. Besco also asked Mr. Chopra if any other managers raised concerns to him or the Grievor directly regarding her hours of work since she started working at the alternate work location.

27On March 17, 2019 Mr. Chopra sent Ms. Besco and Ms. Sun a copy of his notes from the March 12, 2019 meeting asking them if they have anything additions to make. Some of the remarks contained in that memo were as follows:

• Sanjeev stated that he has known Sandra personally for many years (relationship seemed too close, the way it was described, almost suggesting a conflict of interest)

• Sandra accused Rae of suggesting Sandra had lied, demonstrating a lack of trust for Sandra in emails and yelling at Sandra on the phone

• Sandra indicated that she has a health condition that does not allow her to handle stress. Sanjeev accused Rae of unnecessarily creating stress, indicating that she has no right to micromanage, and cited the Human Rights Code section pertaining to aggravating health

• Sameer agreed that he is concerned about Sandra’s health and takes employee health and safety seriously, but wanted to focus on the accusations.

• Sandra accused Rae of not trusting her and suggested that security logs tracking her access card be monitored to track her attendance.

• Sanjeev indicated that Sandra has a health condition that does not allow her to take stress. Sandra explained she was busy covering for other staff who are away and could not respond to Rae’s emails. Rae asked if the workload on that day was a concern. Sandra raised her voice and said to Rae that the increased workload was not stressful, having to respond to emails is. Sandra indicated that she does not have to respond to emails for a full day.

• Sandra indicated that she feels Rae does not trust her because of the emails. Rae asked what was it about the emails that gave Sandra that feeling. Sandra suggested that Rae should have worded the emails differently to ask if Sandra is in the office.

• Sandra raised her voice and accused Rae of speaking condescendingly, causing many arguments in the North York office and yelling at people in the North York office. Sanjeev indicated that “Sandra feels this way”

• Sanjeev raised his voice and said to Rae: “You don’t know how to talk”. Rae mentioned that English is not her first language and asked if her Chinese accent was a problem. Sanjeev responded by declaring that Sandra will be filing a grievance under Article 22 and ended the call.

28The Union filed this grievance on March 13, 2019. There was no further follow-up by Management to address the concerns raised during the March 12, 2019 meeting. Mr. Chopra testified that he was hopeful that the grievance process would help deal with the issues raised in the Grievance. While he admitted that there were no further attempts to resolve the Grievor’s concerns, he stated that he would have arranged a meeting if one had been requested.

Allegations related to workplace exclusion

29As part of the Grievor’s overall claims against Ms. Sun and Management, she stated that Ms. Sun never visited her at the accommodated workplace location, despite requesting Ms. Sun to attend. This was unlike the Grievor’s experience with Mr. Small, her previous Manager and Mr. Chopra, who had both visited with her on site in the past. For example, in his testimony, Mr. Small stated that he met with the Grievor on site because he wanted an opportunity to have an in person meeting to not only give her a level of comfort by supporting her accommodation, but also to see her physical workplace to determine if there was anything else she needed to support her. According to Ms. Sun, she claimed that she had wanted to visit the Grievor but that she had “a lot on her plate” and was constrained from doing so because of the June 2018 Cabinet Office Directive covering “Additional Expenditure Restrictions”, which prohibited non-essential travel. Given that the Grievor and Ms. Sun were able to communicate daily by phone or email, Ms. Sun believed that visiting her on site would incur non-essential travel costs in contravention of the Directive.

30The Grievor also claimed that she felt excluded from the workplace because Ms. Sun never offered her assistance through an accommodation to attend a workplace meeting or event. When asked about this allegation, Ms. Sun remarked that she did not recall the Grievor ever asking for an accommodation to attend a meeting and stated that, in any event, the Grievor would find any excuse not to attend meetings. In that regard, Ms. Sun noted that most of her team members, who were also friends of the Grievor’s did not attend events, so when the Grievor did not ask for an accommodation, Ms. Sun assumed that the Grievor did not want to attend. Ms. Sun reiterated that it was possible, for example, to offer a taxi chit as an accommodation in order to attend a meeting, but that the Grievor never asked for one and showed disinterest in showing up for meetings. On cross-examination, Ms. Sun confirmed that she did not have specific examples of the Grievor declining to attend a meeting nor could she recall her ever asking the Grievor why she wouldn’t want to attend a meeting. Ms. Sun did clarify that attendance at meetings was not mandatory and that she could not direct the Grievor to attend.

31One specific example of feeling excluded related to a Branch Day event scheduled in the spring of 2019. On May 31, 2019, there were a series of email exchanges between Ms. Sun and the Grievor which began with Ms. Sun asking the Grievor whether she had accepted the invitation to the Branch Day social event. In response, the Grievor told Ms. Sun that she could not come to the event due to the usual reason, which was followed up by a question from Ms. Sun stating she wasn’t sure about which “usual reason” the Grievor was referring to. The Grievor then responded “I think you know you have been here over a year and many times I have let you know why I cannot come to different branch activities”. Ms. Sun then asked the Grievor to provide her reason to which the Grievor responded “due to medical condition”. When asked why she questioned the Grievor about the reason, Ms. Sun stated that she couldn’t assume anything, so she needed to seek an explanation from the Grievor. This email conversation upset the Grievor because she expected Ms. Sun to understand how her accommodation limited her ability to attend events and she felt that Ms. Sun was not considerate of her medical limitations. While the Grievor did not ask for an accommodation to attend the Branch Day event, there were no further inquires from Ms. Sun about whether the Grievor would have liked to attend the event and what could have been done to assist the Grievor to attend in any event.

Union Submissions

32Rather than the standard case of an employee grieving failure to accommodate, the Union states that discrimination, in this case, occurred as a result of a workplace accommodation in place. When taken from the objective perspective of the Grievor’s accommodation requiring her to work alone in an alternative work location, the Union asserts that Management’s actions establish a pattern of behaviour that can reasonably be viewed as unwelcome, vexatious and discriminatory. The Union asks that I apply objective framework for defining workplace abuse and harassment noted in Cara Operations Limited, Toronto Flight Kitchen and Teamsters Chemical, Energy and Allied Workers Union, Local 647, 141 L.A.C. (4th) Luborsky, at paragraph 18:

“Arbitrator Shime defined workplace abuse and harassment in Stina at p. 241, which I adopt for the purposes of the case before me, as follows:

Abusive conduct includes physical or mental maltreatment and the improper use of power. It also includes a department 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.”

33While the Union notes that the Grievor may have experienced more positive and flexible working relationships with previous managers and understood that people have different managerial styles, it submits that Ms. Sun’s behaviour was not within an acceptable range of management conduct. The Union points to Ms. Sun’s various email exchanges with the Grievor both in October 2018 and February 2019 as examples of Ms. Sun drawing inferences that if the Grievor did not respond to a phone call or email, that the Grievor was not at work. Within the context of the Grievor’s workplace accommodation, the Grievor was made to feel that Ms. Sun distrusted her thinking she was not a hard worker and was taking advantage of her workplace accommodation arrangement. In addition, Ms. Sun’s arbitrary style of “checking-in” was unnerving for the Grievor, when considering the fact that Ms. Sun had not communicated her response time expectations to the Grievor. Given Ms. Sun’s comment, as stated in her will-say, that she “could not see” the Grievor, the Union suggests that Ms. Sun applied a different set of rules to her, thereby treating her differently than her co-workers who worked at the home office location. The Union submits that there was no evidence showing that the Grievor was not at work when scheduled or that there were any issues with her work performance that had been communicated to her by Ms. Sun or Mr. Chopra. On the other hand, what was obvious was that both Mr. Chopra and Ms. Sun had a negative view about the Grievor’s attitude, suggesting that the Grievor possibly had an ulterior motive to have Ms. Sun removed as a manager and that the Grievor was not open to constructive criticism. In this regard, the Union challenges Ms. Sun belief that once she paid closer attention to the Grievor’s work behaviour the Grievor began to complain that she was being micromanaged because of her accommodation.

34With regard to Mr. Chopra’s actions, the Union states that as Senior Manager, he failed to take appropriate steps to follow up with the Grievor’s complaints and meaningfully work with Ms. Sun to address her working relationship with the Grievor. Although Mr. Chopra set up meetings with the Grievor and listened to her concerns, the Union submits that his testimony shows that he never took effective action or took feedback from Ms. Besco, as a human resources advisor. Particularly in the March 12, 2019 meeting, the Union points to how Mr. Chopra failed to de-escalate the conversation or attempt to understand the Grievor’s viewpoint. Instead, the Union submits that Mr. Chopra distrusted the role of the Union Representative, thinking he had a conflict because he knew the Grievor and that he was overly aggressive in advocating on her behalf. Additionally, the Union notes how Mr. Chopra described the Grievor’s comments in the March 12, 2019 meeting as being condescending and how, in his October 11, 2018 note to Ms. Besco that he remarked how the Grievor would threaten to file a grievance if she didn’t get her way.

35The Union also argues that other examples of the Grievor feeling excluded or isolated from the workplace, because of her disability, occurred when Ms. Sun decided not to visit the Grievor at her work location or when the Grievor was not offered opportunities to attend workplace meetings. The Branch Event email exchange also showed evidence of Ms. Sun being testy with the Grievor when she knew that the Grievor could not attend the home office due to her disability.

36In terms of remedy, the Union asks that I apply the reasoning in Arunachalam v. Best Buy Canada, 2010 HRTO 1880 for assessing human rights damages. At paragraph 52, the Tribunal determined that the test for evaluating appropriate damages for injury to dignity, feelings and self respect is two-fold taking into account the objective seriousness of the conduct and the effect the person who experienced discrimination. Applying this reasoning, the Union argues that the Grievor in this case, was isolated from co-workers because of her accommodation and experienced, at the hands of management, humiliation, loss of dignity and integrity with little attempt to integrate her into the workplace. These series of actions left her feeling that she was not trustworthy and not taken seriously. The Union asserts that the impact on the Grievor was serious and aggravated her medical condition which was conveyed to Management.

Employer Submissions

37The Employer submits that the managerial actions taken by Ms. Sun and Mr. Chopra were reasonable and done for legitimate workplace purposes. Moreover, the Employer suggests that the totality of incidents is minimal and cannot be linked either to harassment or discrimination on the basis of disability within the meaning of the Collective Agreement or the Human Rights Code. While admitting that some of the managerial actions that occurred may not have been ideally handled, the Employer stresses that poor management does not necessarily equate to harassment or a violation of the Code or the Collective Agreement. Such a finding can only be made where the Union establishes that behaviour is a departure from reasonable conduct. In this case, the Employer attributes the conflict between the Grievor and Ms. Sun due to Ms. Sun’s direct management style and personality differences and points to the Decision in OPSEU and Ontario (Treasury Board Secretariat) (Asztemborski), 2017 Carswell Ont 20946, 134 C.L.A.S. 28, 285 L.A.C. (4th) 285 (Briggs), that made reference, at paragraph 65 to the following statement: “harassment is a serious subject which must be considered and dealt with in a serious manner. But she also noted — and it is particularly relevant in this case at hand — that "the reverse is also true. Not every employment bruise should be treated under this process." Less than optimum workplace demeanor or "general unhappiness with life in the workplace" are not violations of Article 2, 3 or 9 of the Collective Agreement between these parties.

38The Employer states that there was no evidence to suggest that either Ms. Sun or Mr. Chopra were unhappy with the Grievor’s accommodation plan or that they wanted her to move back to the home office location. Simply because Ms. Sun asked the Grievor for an updated medical, the Employer submits, that was not an indication of dissatisfaction with the accommodation plan. Further, the Employer submits that the Grievor testified that she was never asked to return to the home office location.

39In terms of allegations of Ms. Sun’s repeated harassment, the Employer submits that between March 2018 and June 2019, there was documented evidence of only 2 instances occurring in October 2018 and February 2019 of phone-calls and email exchanges. Assessing these interactions, the Employer suggests that Ms. Sun was simply confirming, without negative consequences, the Grievor’s attendance in October 2018 and the Grievor’s confirmation that she would fill in during a colleague’s bereavement/vacation leave in February 2019. The Employer submits that Ms. Sun’s actions had nothing to do with the Grievor working from a different work location and that had she been at the home office, she would have been subject to the same inquiries. In addition, when the Grievor was asked by Mr. Chopra to provide copies of emails or documentation to back up her claims that nothing had changed after October 2018, the Employer maintains, that the Grievor did not send any other documented emails or proof of her allegations. This observation is also made by the Employer with respect to requesting details of the Grievor’s complaints in advance of and during the March 12, 2019 meeting. Regarding allegations about Ms. Sun’s tone of voice and yelling at the Grievor, the Employer asks that I prefer Ms. Sun’s evidence that she never yelled at the Grievor in light of her and Mr. Chopra’s testimony in comparison to the Grievor’s recollections and the unreliable hearsay evidence produced through Ms. Gurley’s email. The Employer instead points to evidence of the Grievor yelling at Ms. Sun, as proof of how the Grievor engaged in disrespectful workplace behaviour.

40Although it was admitted that the March 12, 2019 meeting was not handled well by Management, the Employer again remarks that Ms. Sun’s conduct should not be viewed as threatening or discriminatory. From the Employer’s perspective, while Ms. Sun, and Mr. Chopra to some extent, did not understand Union’s role at the meeting, their ignorance cannot be reasonably linked to discriminatory behaviour.

41Regarding staff meetings and social events, the Employer maintains that the Grievor was always included by being given the opportunity to attend meetings by teleconference. In that regard, the Employer notes that the Grievor didn’t seem interested in attending events, which were not mandatory, and never asked Ms. Sun for an accommodation, such as a taxi chit, to allow her to participate. Looking at the Branch Day Event email exchanges, the Employer submits that Ms. Sun may not have known why the Grievor was unable to attend and that her asking for an explanation was valid in the circumstances. Alternatively, the Employer claims that it is not required to offer an accommodation for non-mandatory “extra-curricular” social events such as Branch Day because these events are separate from job functions and related working conditions. In support of this reasoning the Employer refers to findings on this point, at paragraph 47, in OPSEU (Hart-Day) and Ontario (Ministry of Community Safety and Correctional Services), [2011] GSB #2007-1117, July 26, 2011 (Dissanayake). In that case, the Arbitrator found that accommodation did not extend to participation in Union activities or committee work as those activities did not form part of that grievor’s job or working conditions. With regard to Ms. Sun not visiting the Grievor at work, the Employer argues although Ms. Sun testified that she had intended to visit, the existence of Cabinet Office’s directive on expenditures for non-essential travel together with Ms. Sun’s busy workload should be viewed as reasonable business decisions in the circumstances.

42Should I uphold the Grievance, the Employer urges that I order a remedy at the lower end of the spectrum in light of its view that the Union did not show a pattern of harassing conduct that would have impacted the Grievor. At most, the Employer likens the instant case to a situation in which damages were assessed at $1500 where an Employer took some action but showed indifference and failed to fully investigate a complaint of discrimination and harassment against a co-worker (OPSEU (Groves) and Ontario (Ministry of Community Safety and Correctional Services), [2014] GSB# 2008-3971, October 14, 2014 (Mikus).

43In support of its arguments the Employer submitted these additional cases for consideration: British Columbia v. B.C.G.E.U., 1995 CanLII 18346 (BC LA), 1995 Carswell BC 3166, [1995] B.C.C.A.A.A. No. 131, 40 C.L.A.S. 195, 49 L.A.C. (4th) 193 (Liang); Fanshawe College of Applied Arts and Technology and OPSEU (Read), 2016 Carswell Ont 6614, 127 C.L.A.S. 11 (Bendel): OPSEU (Fortin) and Ontario (Ministry of Finance), [2017] GSB# 2013-2473, 2013-2618, February 22, 2017 (Luborsky); Cara Operations Ltd. (c.o.b. Toronto Flight Kitchen) v. Teamsters Chemical, Energy and Allied workers Union, Local 647 (Palmieri Grievance), 2005 CanLII 94066 (ON LA), [2005] O.L.A.A. No. 302, 141 L.A.C. (4th) 266 (Ont. Arb.) (Luborsky); OPSEU v. Ontario (Grievor), [2015] GSB #2010-2489, March 13, 2015 (Briggs); Toronto Transit Commission v. A.T.U. (Stina), (2004), 2004 CanLII 55086 (ON LA), 132 L.A.C. (4th) 225 (Ont. Arb.) (Shime); PIPSC and Unifor Local 3011 (Menard), [2014] O.L.A.A. No. 106, 118 C.L.A.S. 107 (Starkman); OPSEU (Daley) and Ontario (Ministry of Health and Long-Term Care), [2017] GSB# 2015-0637, January 5, 2017 (Herlich). OPSEU (Yousif et al) and Ontario (Ministry of the Attorney General), [2021] GSB# 2020-2003; 2020-2004, September 14, 2021 (Dissanayake); Ottawa (City) v A.T.U. Local 279, [2011] O.L.A.A. No. 154, 107 C.L.A.S. 49 (Starkman). Canada Safeway Ltd. and UFCW, Local 401 (M. (D)), Re (2012), 2012 Carswell Alta 2355 (Alta. Arb.); Shopper’s Drug Mart No. 242 (Harassment Grievance) [2007] B.C.C.A.A. No. 130 (Larson); Re Good Humor-Breyers and United Food & Commercial Workers International Union, Local 175 (2005), 143 L.A.C. (4TH) 62 (Dissanayake).

Decision

44In deciding this case, it is necessary to review the alleged conduct of Management in light of the legal principles referred to in the caselaw cited by both Parties that allegations of harassment must be tested by questioning, objectively, whether the behaviour is a departure from reasonable conduct in the circumstances. The fact that the Grievor has a workplace accommodation requiring her to work on her own at a separate office from her co-workers and Management, is also relevant to the consideration of what the circumstances are in the instant case against which Managements’ behaviour is judged. These legal principles are nicely summarized in paragraphs 88 and 89 by Arbitrator Bendel in Fanshawe College, supra;

“88 In my view, a prerequisite for a finding of harassment is that the conduct about which the complaint is made be "a departure from reasonable conduct". This was the conclusion of arbitrator Luborsky in Cara Operations Ltd. v. Teamsters, Chemical, Energy & Allied Workers, Local 647, supra, drawing on language used by arbitrator Shime in Toronto Transit Commission v. A.T.U., supra. An employee who complains about behaviour that is within the realm of reasonable conduct will be unable to satisfy an arbitrator that there has been harassment, regardless of the effect that behaviour might have had on the employee.

89 I should add that it seems obvious to me that a decision on the reasonableness of the impugned conduct has to take account of the particular work situation. In this connection, I note that the grievor worked in an organization that was undergoing rapid growth. It is entirely foreseeable that some employees might find a fast-paced and rapidly changing environment to be stressful (although others might find it invigorating). The question I have to consider is whether Ms. Pierce's behaviour could be regarded as egregious in such an environment.”

45Although the Grievance included an allegation of a violation of Article 9 dealing with Health and Safety, that Article was not referred to in the Union’s closing argument. Therefore, only these provisions of the Collective Agreement are relevant to deciding this case:

ARTICLE 2 – MANAGEMENT RIGHTS

(FXT, SE, ST, FPT, RPT, GO)

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

ARTICLE 3 – NO DISCRIMINATION / EMPLOYMENT EQUITY

(FXT, SE, ST, FPT, RPT, GO)

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

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

3.3 The Parties are committed to a workplace free from workplace harassment, including bullying, by other employees, supervisors, managers, any other person working or providing services to the Employer in the workplace, clients or the public, in accordance with the law. Workplace harassment is engaging in a course of vexatious comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome.

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

46Reviewing the evidence, I do not find that the Union has established that either Ms. Sun or Mr. Chopra were unhappy with the Grievor’s accommodation plan in the sense that they wanted her to return to the home office. While the Grievor may have felt that way, she agreed that she was never asked to return to the home office. Although Ms. Sun did ask the Grievor, on a few occasions, for an updated medical report, that request, on its own, does not infer that Management was dissatisfied with the accommodation plan. I am satisfied with Ms. Sun’s explanation that because the plan was created in 2015, that it was within her management rights, in 2018, to review and update the accommodation plan if necessary.

47However, considering the totality of the evidence, I find that the Grievor was subject to adverse treatment because of her disability and was subject to harassment by Ms. Sun, as her Manager. Although Ms. Sun explained that the branch work was high volume and that she was responsible for staffing and work coverage, the way she managed the Grievor was affected, in part, by the fact that the Grievor’s work was governed by an accommodation plan that separated her from the home office. Despite the fact that Ms. Sun claimed that she was not an experienced manager and that she believed she was only trying to work with and help the Grievor, her actions, when viewed on a scale of reasonable conduct, cannot take away from the impact that they had on the Grievor believing that she was treated differently because of her accommodation. In reaching this conclusion, I have taken into account the testimony and documentation surrounding all incidents from October 2018 through to the Branch Day event email exchanges in May 2019. While this latter email exchange took place, post grievance, it is relevant in terms of assessing the reasonableness of Ms. Sun’s behaviour toward the Grievor. It should also be noted that evidence was introduced about the Grievor’s refusal to sign her PDP plan in June 2019. Since Management agreed that the Grievor was meeting work expectations, the fact that she may not have signed her PDP in June 2019 has little bearing on the findings in this case. What was apparent from Mr. Chopra and Ms. Sun’s testimony is that they both questioned the Grievor’s attitude suggesting that she had ulterior motives for filing this grievance either related to wanting to have Ms. Sun removed as her Manager or that the allegations of harassment and discrimination only arose because the Grievor did not like how she was being managed by Ms. Sun.

48While the documentary evidence regarding the October 18, 2018 and February 21, 2019 incidents may at first appear to be innocuous email exchanges, the testimony of both the Grievor and Ms. Sun revealed that, in addition to these two incidents, Ms. Sun did randomly check-in with the Grievor questioning when the Grievor had not responded to an email within a short period of time. Given that Ms. Sun had not established expectations for reasonable response times with the Grievor and had not set up a routine for the Grievor to confirm attendance, it was reasonable, in these circumstances, for the Grievor to believe that Ms. Sun did not trust that she was at work or that the Grievor was taking advantage of her accommodation plan. Admittedly, Ms. Sun stated that “she couldn’t see the Grievor” and that there was no other MGCS staff at the Grievor’s alternate work location overseeing her work. During the March 12, 2019 meeting, Ms. Sun also questioned Mr. Srivastava about how he claimed to know whether the Grievor was working diligently at work each and every hour. Furthermore, while Ms. Sun claimed that purpose of the February 21, 2019 emails was to seek confirmation of vacation coverage , it is reasonable to conclude both from Ms. Sun’s testimony and the wording of the emails, that Ms. Sun also questioned whether the Grievor either had left work early or had taken a vacation day. While the evidence showed that Ms. Sun was satisfied with the answer once the Grievor provided an explanation about her not immediately responding to a phone call or email, that does not take away from Ms. Sun’s initial suspicions. Considering the evidence before me, I find that, Ms. Sun applied a different standard to the Grievor based on her accommodation than she did to her staff, in plain sight, at the home office.

49With respect to phone conversations in evidence between Ms. Sun and the Grievor, it is evident that the Grievor made it known to Ms. Sun, that she did not appreciate being monitored and that Ms. Sun’s inquiries made the Grievor feel that she was not trusted by Ms. Sun. In assessing their conversations, I do believe that both the Grievor and Ms. Sun were not always respectful to each other and likely raised their voices at one another. In making this finding about the Grievor’s behaviour, I have also relied on the Mr. Chopra’s evidence that the Grievor, in her dealings with him, did display frustration and a loud tone of voice making some comments about Ms. Sun’s management style that he found to be rude. While not condoning this type of behaviour, the fact that the Grievor may have been rude on the phone or yelled at Ms. Sun, does not take away from her right to be free from discrimination and harassment at the workplace. In terms of Ms. Sun’s testimony, I do not find her testimony to be credible about how she spoke with the Grievor on the phone on October 11, 2018. During her cross-examination, Ms. Sun became defensive and challenged Union Counsel asking her to define what was meant by “slamming” in reference to the question about whether Ms. Sun slammed the phone down on the Grievor during the October 11, 2018 conversation. Ms. Sun instead claimed that it was only the Grievor who was yelling and challenged Ms. Gurley’s email by suggesting that, as a disgruntled employee, she had motivation for sending the email to the Grievor. Although Ms. Gurley did not testify in the hearing, and admittedly only heard one side of the October 11, 2018 conversation, Ms. Sun admitted that Ms. Gurley sat in close proximity and within hearing range of her desk. While Ms. Gurley may have been a disgruntled employee, the email that she sent to the Grievor was contemporaneous to her hearing Ms. Sun’s comments and showed concern about how Ms. Sun spoke to the Grievor. The fact that Ms. Gurley also wrote about the workplace being toxic, does not take away from what she heard that day.

50I also believe the Grievor legitimately felt excluded from the home office team. While Ms. Sun stated that she intended to act on the Grievor’s request for an on-site visit, the decision not to attend because of expenditure restrictions or her busy schedule, can be reasonably viewed as one example causing the Grievor to feel excluded. Given that the Grievor had been visited by Mr. Small in the past and by Mr. Chopra, it was reasonable for her to expect a similar level of support from Ms. Sun. In addition, the home office was less than 10 kilometers away from the office where the Grievor worked, so it begs the question of how supporting an accommodated employee in this instance could be considered “non-essential” travel.

51Another example of the Grievor feeling excluded also occurred with respect to workplace meetings and the Branch Day event invitation. Although it was usual for the Grievor to attend work meetings by phone and while the Grievor may not have asked for assistance to attend, there was never an offer or inquiry by Ms. Sun asking the Grievor if she wished to attend a meeting in person or asking her whether it would be helpful to provide transportation by taxi. Instead, Ms. Sun indicated that the Grievor showed little interest in attending meetings, found any excuse not to attend and stated that the Grievor never asked for an accommodation to attend a meeting. In terms of the Branch Day event email exchange, given Ms. Sun’s knowledge that the Grievor could not attend the home office for medical reasons and was restricted in her mode of transportation, the questions asked of the Grievor about her reason for not attending, can be reasonably viewed as unwelcome. Although the Grievor did not ask for assistance to attend the Branch Day event, there were no further inquiries from Ms. Sun to ask whether the Grievor would have liked to attend the event and how getting her to the event would have been made possible. Even though attendance at the Branch Day event was not mandatory, it was a work-related event where staff could get together socially and presumably the event had an underlying purpose of team-building. Extending an offer of accommodation for this type of employee event makes reasonable sense and is distinguishable from the accommodation request made in the Hart-Day case, supra in which it was found that an offer of accommodation did not extend to meetings related to union activity committee work.

52In addition, I find Mr. Chopra did not take full responsibility to ensure that the Grievor’s concerns were heard and acted upon, particularly in response to the human rights allegations raised in the March 12, 2019 meeting. There is no doubt that Mr. Chopra took an active role in listening to and speaking with the Grievor and seeking human resources advice from Ms. Besco. However, he came to the conclusion that Ms. Sun had done nothing wrong as a manager without delving further to better understand why the Grievor wanted Ms. Sun’s behaviour to stop or why she believed Ms. Sun did not trust that she was at work. Instead, he assumed things were fine because the Grievor initially said that she would speak with Ms. Sun about setting up a daily attendance check-in and seemed to understand Ms. Sun’s inquiries from a managerial perspective. In addition, Mr. Chopra assumed that there were no further issues between the Grievor and Ms. Sun because the Grievor did not provide him with further examples of incidents or emails involving conflicts with Ms. Sun.

53Once it became clear to Mr. Chopra in the March 12, 2019 meeting that the Union was raising human rights issues, Mr. Chopra did not take any further action. Clearly the meeting was not productive and could have been handled more professionally on both sides. However, as the Senior Manager, Mr. Chopra did not take steps to stop Ms. Sun from claiming she was being attacked rather than trying to respond to the Union’s perspective about how Ms. Sun’s actions were affecting the Grievor’s health. It was also evident from his testimony that he too questioned Mr. Srivastava’s role by commenting in his meeting notes about the Union representative advocating aggressively on the Grievor’s behalf. Following the meeting, Mr. Chopra did not take any further steps despite the fact that Ms. Besco had advised him about her concerns over some of the issues raised and advised him that he needed to seek more information from Ms. Sun in order to clarify the Grievor’s allegations. She also asked Mr. Chopra if any other managers had raised concerns about the Grievor’s work attendance since the accommodation plan started at the new work location, which provides an indication that Ms. Besco wanted to know if the Grievor was being treated differently than staff at the home office. Despite the fact that the Grievance was filed on March 13, 2019, or his acknowledgement that he would have scheduled a meeting if one had been requested, Mr. Chopra should have continued to follow-up on the allegations raised in the March 12, 2019 meeting as Ms. Besco had recommended.

54In terms of Ms. Sun’s conduct immediately following the March 12, 2019 meeting, the Grievor’s testified that she was upset because a co-worker told her that the Grievor was accusing Ms. Sun of harassment. I do believe that in her upset state, it is probable that Ms. Sun told staff, who were comforting her, that the Grievor was accusing her of harassment. Ms. Sun recalled telling staff she had a difficult meeting and then advised all staff by email that she was taking the next day as a vacation day due the difficult day she experienced. In addition, Ms. Sun sent a second vacation email on March 17, 2019 advising that she was still experiencing difficulties due to the March 12, 2019 meeting and would be taking March 18, 2019 off work. Even if these were not Ms. Sun’s exact words, it is reasonable to assume that the Grievor believed that staff knew that the meeting was about her and that they would have made the connection between Ms. Sun’s emotional state, her subsequent vacation day emails and her interaction with the Grievor during the meeting.

Remedy

55The Grievor seeks monetary compensation for injury to dignity, feelings and self-respect of $10,000. In assessing Human Rights Code damages, it is helpful to consider the analysis at paragraphs 53 and 54 of the decision in Arunachalam v. Best Buy Canada, supra:

“The first criterion recognizes that injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant's particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 [reported55 C.H.R.R. D/102] at §34-38.”

56The discrimination in this case resulted from a series of interactions that had the impact of causing the Grievor to believe that Ms. Sun did not trust that she was at work and that the Grievor was taking advantage of her accommodation in place. On the evidence, I determined that Ms. Gurley overheard Ms. Sun yell at the Grievor on October 11, 2018 and that Ms. Sun’s shared reaction and subsequent emails to staff about how she felt attacked during the March 12, 2019 meeting could be connected to the Grievor, all of which can be seen as humiliating to the Grievor. While I have noted that the Grievor’s verbal communication was also not always professional, that observation does not excuse management from taking steps to understand concerns from the Grievor’s perspective. Even after human rights issues were raised in the March 12, 2019 meeting, Ms. Sun continued to claim that she had done nothing wrong believing that she was being attacked as a bad manager rather than considering how her actions might have impacted the Grievor. In addition, Mr. Chopra failed to take further action in response to the March 12, 2019 meeting, contributing to the Grievor’s belief that her concerns had not been heard. To add to the Grievor’s injury, little effort was made by Ms. Sun to help the Grievor feel included as part of the home office team. Although extra measures, such as offering transportation to attend a meeting or visiting the Grievor at the accommodated workplace might not have been part of her accommodation plan, these would have gone a long way to support the Grievor’s dignity and self-respect to feel fully integrated in the workplace. What is more troubling though, is that Ms. Sun and to some extent Mr. Chopra made assumptions that the Grievor, like her friends, had little interest in attending meetings, rather than asking her if she wanted to attend meetings and making transportation possible within her restrictions. Finally, the questions asked by Ms. Sun about the why the Grievor was not attending the Branch Day event can reasonably be viewed as hurtful because Ms. Sun was well-aware of the Grievor’s medical condition and restrictions that impacted her ability to travel to the head office.

57In terms of the Grievor’s particular experience from the discriminatory conduct, there was evidence in the March 12, 2019 meeting that the Union advised Management that Ms. Sun’s conduct was causing the Grievor stress which could be harmful to her medical condition. The Grievor also provided a doctor’s note, at the hearing, dated October, 2019 confirming that she experienced a seizure-like episode in May 2019, which the Grievor submits was due to the stress that she was suffering at work. However, the contents of the medical note do not confirm that there was a connection between the episodic event in May 2019 and the impact of the Grievor’s interaction with Ms. Sun. As a result, I do not find the medical note provided to be helpful in assessing the impact of Management’s conduct on the Grievor.

58The facts of this case differ from the circumstances in the caselaw submitted by the Employer. Many of the cases involved allegations of personal harassment that were dismissed because the facts raised did not establish a prima facie case of a collective agreement violation. In cases that were decided on the merits, arbitrators found that while behaviour of management, when considered in the context of a particular workplace might have been objectionable it did not meet the test of departure from reasonable conduct.

59The Employer asked that I consider awarding a remedy on a lower scale of damages and pointed to the decision in the Groves case, supra in which a grievor was awarded $1500 in damages for the failure to properly investigate allegations of a co-worker’s discriminatory and harassing comments. In that case, the Arbitrator found that once the employer became aware of discriminatory conduct it took action by hiring an investigator and by issuing a memo to staff reminding them of their Code obligations. However, the Arbitrator found that the investigation was not completed thoroughly and that the staff memo was too vague resulting in a finding of a violation of Article 3 of the Collective Agreement.

60In the case before me, I have considered the impact on the Grievor to be greater than the Groves case because in these circumstances, it was conduct of the Grievor’s direct Manager and the lack of a complete follow-up by her Senior Manager that had the impact of causing the Grievor to think she was untrustworthy, excluded from the home office team and being treated differently from her co-workers due to her disability. I do not doubt that Management’s actions were stressful for the Grievor but there was no medical evidence that substantiated a connection between Management’s conduct and a decline in her medical condition. In addition, while the actions of Ms. Sun and Mr. Chopra were serious, I do not view their conduct as so vexatious that would warrant a high compensatory award. In the circumstances of this case, I have determined that the appropriate remedy is $5000 classified as general damages.

61I find that the Employer violated Article 3 of the Collective Agreement by engaging in harassing conduct and exclusion of the Grievor on the basis of disability. The Employer is ordered to pay the Grievor $5000 within 45 days of this Decision.