GSB# 2019-0873

UNION# 2019-0526-0013

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Benjamin)

Union

• and -

The Crown in Right of Ontario (Ministry of the Attorney General)

Employer

BEFORE

Diane Gee

Arbitrator

FOR THE UNION

Laura Johnson Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Julia Evans Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

October 30, 2020; March 5, May 12 and 13, August 9, 2021; May 19, August 12, November 23 and 24, 2022; June 7, 2023

SUBMISSIONS August 16, October 6 and 24, 2023

Decision

1This matter is a grievance filed by the Ontario Public Service Employees Union (the “Union”) on behalf of Andre Benjamin (the “grievor”). The grievance concerns a seven-day suspension imposed on the grievor by the Ministry of Attorney General (the “Employer”) because of events that occurred on November 9, 2018. The grievor holds the position of court clerk and registrar. His group leader at the time was Juan James. Mr. James held a bargaining unit position at the time and has since retired. The grievor’s supervisor at the time was Amy Shulist. Roseanne Giancristiano was the Manager of Court Operations Old City Hall and College Park.

Why was the grievor disciplined?

2The letter in which the grievor was advised of the seven-day suspension (the “suspension letter”) begins with a statement that an investigation was conducted into the grievor’s conduct in the courtroom and court support office on November 9, 2018. The letter states an investigation meeting took place, with the grievor in attendance, on November 26, 2018. The letter then continues as follows:

The specific allegations of events that took place on November 9, 2018, were presented to you at the November 26, 2018 meeting as follows:

• You were assigned to courtroom K and left your assignment while court was in session without authorization

• You attended room 250 and exhibited belligerent and aggressive behavior towards the group leader after learning that he would not be able to relieve you from courtroom K

• You attended your supervisor 's office whereby you preceded to challenge your supervisor regarding the direction provided to you to continue your court assignment; you exhibited aggressive and belligerent behaviour, you spoke inappropriately to your supervisor, yelling in the presence of co-workers, while flailing your arms and blocking her from exiting the room

3The next paragraph of the suspension letter states the grievor had been given an opportunity at the investigation meeting to provide the Employer with information concerning the allegations as well as any mitigating factors for consideration in determining potential discipline. Information provided by the grievor at the investigation meeting, including his statement that the reason for his leaving was a personal matter and no one made an effort to release him, is set out followed by his statement that he had not yelled at Mr. James although he was angry and that he did not yell at Ms. Shulist but rather was yelling to her. The letter states the grievor acknowledged being agitated but his actions were “subjective,” and he did not yell or wave his arms. In the following paragraph, the contents of an e-mail the grievor had sent to the Employer on December 6, 2018, following the investigation meeting, is acknowledged.

4Following this review of the allegations that were being investigated and information provided by the grievor to the Employer during the investigation, on the second page of the letter, in the second paragraph, the Employer states as follows:

After carefully reviewing all of the information available to me, including the information you provided during the meetings on November 26, 2018, and the information in your e-mail dated December 6, 2018, I have concluded that your actions, specifically your behavior towards your co-worker [Juan James] and supervisor [Amy Shulist], are contrary to the principles of the Respectful Workplace Policy. Furthermore, leaving your assignment without authorization while court was in session is in contravention of your duties as a courtroom clerk and registrar. You could have notified the group leader or your supervisor in advance if you had to be released early for an appointment. It is not appropriate to simply assume you will be replaced without confirming, and to leave your post. It is also very concerning that you advised the judge you would be relieved when this commitment was not made by the group leader or supervisor.

The Union argues that the Employer imposed the suspension based on the allegations set out in the letter and thus has the onus to establish, on a balance of probabilities, the allegations occurred.

5Roseanne Giancristiano testified as to the reasons discipline was imposed. She stated that, following her investigation, she concluded that the grievor’s emails, calls and text to his supervisor, Ms. Shulist, and/or his group leader, Mr. James, were only made/sent minutes before he needed to be relieved, contrary to his obligation to give the Employer as much advance notice as possible of a potential need to be replaced. Ms. Giancristiano also concluded that the grievor had left court without authorization. Ms. Giancristiano testified she also found, based on what Mr. James had told her in the fact-finding meeting, that the grievor had yelled at Mr. James. She also found that the grievor had yelled at Ms. Shulist based on what she had been told by Ms. Shulist and the grievor himself. Ms. Giancristiano stated that she did not include blocking the door or the flailing of arms as part of the reasons for discipline. While Ms. Shulist had said she felt threatened by the grievor, Ms. Giancristiano concluded that the grievor did not threaten Ms. Shulist and this allegation did not form one of the reasons for imposing the discipline. Further Ms. Giancristiano testified that she also considered the grievor’s employment record as well as his lack of remorse and his failure to acknowledge any wrongdoing.

6Having regard to the contents of the suspension letter and the reasons for the imposition of the discipline as attested to by Ms. Giancristiano, I find the reasons for the imposition of the suspension were: (1) the grievor’s behaviour towards Mr. James and Ms. Shulist were considered to be contrary to the principles of the Respectful Workplace Policy; and (2) the grievor left his assignment while court was in session in contravention of his duties as a courtroom clerk and registrar. The Employer also considered, during its deliberations, that the grievor advised a Judge he would be relieved by Mr. James when this commitment had not been made by the group leader or supervisor; his employment record; and his lack of remorse or acknowledgment of wrongdoing. I further find the allegations the grievor yelled in the presence of co-workers while flailing his arms and blocking Ms. Shulist from exiting her office and to have threatened Ms. Shulist did not form the basis for the imposition of discipline.

7While I have found, as argued by the Employer, that the grounds for the imposition of discipline did not include all the conduct described in the allegations, I would note that it is open to the Board to find that just cause for discipline has been established notwithstanding that all the grounds relied upon by the Employer have not been made out. USWA v. Aerocide Dispensers Ltd. (1965), 1965 CanLII 985 (ON LA), 15 L.A.C. 416 and OPSEU (Ryan) and Ontario (Ministry of Attorney General), 2017 CarswellOnt 10660 (Dissanayake) do not stand for the proposition that every aspect of the cause relied upon by an employer when discipline was imposed must be made out. Rather, Aerocide and Ryan, stand for the proposition that an employer cannot discipline an employee for cause and then, at arbitration, attempt to justify the discipline based on additional or different reasons. An employer’s failure to establish all aspects of the cause it relied upon when imposing discipline is not fatal to its case.

8As stated in Trent University Faculty Association (Bialuschewski) and Trent University, 2021 CanLII 77474 (ON LA) (Kanee) at paragraph 50, the fact that an employer was not able to substantiate the full scope of the cause relied upon when the discipline was imposed does not mean that just cause has not been established, rather, it becomes meaningful at the stage of the enquiry where the Board considers whether the penalty imposed is appropriate in the circumstances.

The allegation of anti-black racism

9In its closing submissions, the Union argued the allegations against the grievor were tainted by anti-black racism. The Employer immediately objected on the basis that the Union had advised the Employer during the hearing, in the presence of the Board, that it was not pursuing any allegations of discrimination under Article 3 of the Collective Agreement and/or under the Human Rights Code. Moreover, because of this agreement, no evidence had been led by either party in this regard. The Employer sought to have the portion of the Union’s closing submissions relating to the allegation of anti-black racism struck.

10Union counsel had changed during the hearing. The Board confirmed for the Union that the Employer’s assertions were accurate. Thereafter, the Union advised no position would be taken in response to the Employer’s objections.

11Having regard to the fact that the Union advised the Board and the Employer during the course of the proceedings that it was not pursuing any allegations of discrimination under Article 3 of the Collective Agreement and/or a under the Human Rights Code and, as a result, no evidence was led by either party on this issue, it is the Board’s determination that the Union cannot now allege anti-black racism.

Has just cause for the imposition of discipline been established?

12The first issue to be determined is whether the Employer has met its onus to establish, on a balance of probabilities, just cause for discipline. As indicated above, the discipline relates to an incident that occurred on November 9, 2018. The grievor was working as a court clerk and assigned to Courtroom K. It is the Employer’s assertion that the grievor left that courtroom without permission and proceeded, first to Mr. James’ office and then to the office of Ms. Shulist where he engaged in conduct contrary to the Respectful Workplace Policy.

13While a great deal of evidence was heard in connection with the scheduling of court clerks there is no need to review this evidence in detail as, at the end of the day, the essential facts are not in dispute.

14First, the evidence clearly establishes that a court clerk is not to leave the courtroom when the Judge is on the bench without the permission of the Judge. The evidence further establishes the grievor was fully aware of this prohibition. He himself began his examination-in-chief by testifying that there were reasons that he would leave the courtroom “with the leave of the judge,” that he did not leave the courtroom everyday “but [when he did] of course with permission,” and when asked if he required the leave of the judge to leave the courtroom he responded, “yes definitely.”

15There are good reasons for the requirement that a court clerk not leave the courtroom without the permission of the Judge. The court clerk is responsible for the Information and the tracking of exhibits. The court clerk is responsible for endorsing the back of the Information for each court appearance. Should an emergency arise, the court clerk is required to secure the exhibits to prevent their integrity from becoming compromised. Also, there is a panic button as well as a telephone located at the court clerk’s desk. In the event of a threat, the court clerk is to push the panic button and call 911. If an emergency were to occur, and the court clerk was not present, exhibits could be compromised, and the court staff put in danger.

16Second, the evidence establishes that courts do not work according to a set schedule and that the grievor was so aware. Courts have no set start and finish time. Courts have no set times for breaks or lunch. The timing of any breaks, lunch, and end of day, is determined by the Judge presiding in the courtroom. The Courtroom Procedures Manual provides as follows:

2.1.8 Duration of Court

The presiding judicial official will normally sit for 1.5 to 2 hours before calling a recess. Court staff should expect to work until court is adjourned for the day. Staff should not expect the court to end at a specific hour and should take this into consideration when making personal arrangements.

According to the Canadian Judicial Council: “Everyone tries for an efficient disposition of a court’s docket. But there should never be any justification for a perception that the judicial process is being sacrificed to a schedule. It is totally unacceptable for courtroom staff to suggest to the judiciary that they refuse to accept a case transferred from another courtroom or to complain about the fact that the case before the court is taking longer than anticipated.”

17During examination-in-chief, the grievor’s attention was directed to paragraph 2.1.8 of the Courtroom Procedures Manual and asked if the statement “staff should not expect court to end at a specific hour and should take this into consideration when making personal arrangements” was consistent with his understanding and he responded: “yes that is fair.” And again, at this stage of his testimony, the grievor repeated, a court clerk needs the permission of the Judge to leave the court.

18Third, the evidence establishes that, if a court clerk knows they have a commitment, such as an appointment, that means they are unable to be in a courtroom at any time during their shift, they are to inform Mr. James as early as possible so arrangements can be made to have a replacement available should the need arise. The evidence establishes that the grievor was aware of this obligation. When asked: “if you had a doctor’s appointment, something you really needed to attend, you would raise it in advance?” the grievor responded yes, he would inform Mr. James in advance if he had a fixed appointment.

19In summary, the evidence establishes that the grievor knew: (1) he was required to be in the courtroom while the Judge is on the bench and could not leave without the permission of the Judge; (2) he could not expect court to end at any specific time; and (3) he was required to inform Mr. James as early as possible of any need to be absent from the courtroom during his shift due to a commitment so that a replacement could be found should a need arise.

20The grievor does not dispute that he did not tell Mr. James on the morning of November 9, 2018, that, should the need arise, he could not be in the courtroom as of 1:00 p.m. The grievor testified he did not need to tell Mr. James as what he wanted to do at 1:00 p.m.: “was not something important enough to [him] to seek permission in advance [or] to tell people in advance.” Rather, the grievor testified he had a “personal matter” that “was not a scheduled appointment” but rather “something he wanted to fulfill but he did not have to fulfill.” The grievor did not testify as to the nature of the personal matter he wanted, but did not need, to fulfil. I will refer to the matter the grievor wanted to attend to at 1:00 p.m. as a “personal matter.”

21On November 9, 2018, following the morning break, when the grievor was walking the Judge back to court, the possibility of a special matter being spoken to in the court at 1:00 p.m. was brought to the grievor’s attention. The grievor testified that the matter was only to be “spoken to” which meant the proceeding would be short. The grievor testified the Judge made a comment that led him to believe the court staff would be replaced so he did not contact Mr. James and inform him of his personal matter. Following the morning break there were further communications with other court staff about the possibility of the special matter being spoken to in the courtroom starting at 1:00. The grievor testified he still did not contact Mr. James and advise him of his personal matter as it was not a certainty the special matter would be coming into the court. When, minutes before 1:00 p.m., the grievor received confirmation the special matter would in fact be spoken to in the courtroom starting at 1:00 p.m. he called Mr. James and asked to be replaced.

22According to the grievor, Mr. James said he had no one to replace him and hung up. The grievor tried calling Mr. James several more times. The grievor tried to reach Ms. Shulist by phone, sent Mr. James and Ms. Shulist an email and left Ms. Shulist a voicemail message seeking to be replaced. Notwithstanding that, according to the grievor’s testimony, the personal matter was not important enough to have told Mr. James about it that morning and was not something he needed to do, the grievor then left the courtroom and proceeded to the offices of Mr. James and then Ms. Shulist seeking to be replaced.

23In rebuttal of the Employer’s assertion the grievor was not permitted to leave the courtroom when he did, the grievor argues that he left the courtroom on a break. Just before the grievor left the courtroom, he was asked by Judge Favret to hand her the Information so that she could note the numerous counsel who would imminently be in attendance to speak to the special matter. When the grievor left the courtroom, the Judge was on the bench and the court reporter was present. The officer had stepped out into the hallway to page counsel into the courtroom. After the grievor left the courtroom, the proceedings concerning the special matter commenced and Judge Favret is heard to say on the audio tape: “we do not have a clerk so that is my responsibility, I guess, right now.” Whatever was happening in the courtroom at the exact moment the grievor left, proceedings clearly commenced moments after he left and carried on while he was absent. I find the courtroom was not on a break when the grievor left and the grievor required the permission of the Judge to leave the courtroom when he did.

24The grievor further argues he had the “implicit” consent of the Judge to leave the courtroom. On the audio tape, Judge Favret can be heard asking the grievor: “are you staying?” and he responds “no.” She asks if someone else is going to come in and, according to the transcript, the grievor replies: “My leader won’t change us.” The grievor testified what he actually said was: “my supervisor or lead Juan James will be replacing me.” The audio tape is very difficult to hear at this point. I accept the grievor’s testimony that he told Judge Favret that Mr. James would be replacing him. During examination-in-chief, the grievor testified “I reassured her [Judge Favet] my supervisor would be replacing me” and “I assured the Judge I would be replaced.”

25The grievor further testified that, at the time he assured Judge Favret that Mr. James would be replacing him, Mr. James had told him that he had no one to replace him. Mr. James also testified that he had told the grievor he had no one to replace him.

26When the contradiction between his telling Judge Favret that Mr. James would be replacing him, and his knowledge that Mr. James had told him he had no one to replace him, was put to the grievor, the grievor testified he had information from a friend in Room 156, where surplus court clerks were assigned, that there was a court clerk assigned to the room. The grievor testified this friend was not a member of management, does not direct court clerks and would not know the terms on which the clerk was assigned to Room 156. The grievor further acknowledged he had no knowledge as to the scheduling arrangements for the clerk who was in Room 156. The information from his friend about a surplus clerk in Room 156 does not in any way provide a foundation for the grievor to tell Judge Favret that Mr. James would be replacing him.

27The Union argues that the Employer ought to have called Judge Favret as a witness in this matter in order that she could have spoken to the circumstances under which the grievor left the courtroom as it would be directly relevant to the allegation that the grievor left his assignment while court was in session without authorization. The Union asks that an adverse inference be drawn against the Employer. The Union’s argument is that Judge Favret gave the grievor permission to leave the courtroom following the grievor assuring her that he would be replaced. Any permission given by the Judge was thus based on a misrepresentation made to her by the grievor. Accordingly, there was no need for the Employer to call Judge Favret and I draw no adverse inference as a result.

28I find, if Judge Favret “implicitly” gave her consent to the grievor to leave the courtroom, her consent was given based on the false representation made to her by the grievor that he was being replaced. The grievor did not have the permission of the Judge to leave the courtroom under the actual circumstances; namely, that no replacement was available. I find the grievor did not have the permission of the Judge to leave the courtroom.

29The grievor puts forward numerous justifications for his conduct which are discussed below. I do not find the explanations put forward by the grievor to be exculpatory, but I also do not find them credible. As set out above, the grievor testified that the personal matter he wanted to attend to at 1:00 p.m. was not important enough to tell Mr. James about that morning and was something he wanted to fulfill but not something he needed to fulfill. I do not find this to be probable when viewed in the context of what happened that day.

30The grievor’s conduct that day very much supports a finding that he had a matter scheduled for 1:00 p.m. that was important to him and that he very much wanted to attend. When the special matter came into the courtroom to be spoken to at 1:00 p.m., within minutes of 1:00 p.m., the grievor made repeated calls, texts and emails to Mr. James and Ms. Shulist seeking to be replaced. He was aggravated. He went so far as to lie to the Judge, telling her he would be replaced and left the courtroom without permission. He proceeded to Mr. James’ office and then Ms. Shulist’s office demanding to be replaced. His own description of what he was feeling and his actions and words when speaking to Mr. James and Ms. Shulist, detailed below, are not those of a person who has an unimportant commitment that they want, but do not need, to attend. It is the conduct of someone who has an important commitment. If the matter was not important to the grievor, his conduct that day is simply illogical and confounding.

31With the finding that the grievor in fact had an important commitment that he needed to attend scheduled for 1:00 p.m. on November 9, 2018, I turn to the justifications advanced by the grievor for his conduct.

32The grievor argues that lunch is normally at 1:00 p.m. and he had a reasonable expectation that lunch would be at 1:00. The grievor states he had little notice that he would be required in court at 1:00 p.m. and, when it became known to him, he acted as quickly as he could to inform Mr. James. In the grievor’s words, he did not tell Mr. James of the personal matter he wanted to attend to at 1:00 p.m. because he did not need to until the circumstances, namely confirmation that the special matter was to be spoken to at 1:00 p.m., “created the need.”

33As stated above, I have found the grievor had a commitment at 1:00 p.m. that was important to him and, as such, he was required to inform Mr. James of that commitment at the start of his shift that day. The grievor was not entitled to hold back and wait to see if an actual conflict crystalized before informing Mr. James. To do so denies Mr. James the advance notice he requires to plan and find a replacement.

34The grievor further states he only left the courtroom when efforts to contact Mr. James and Ms. Shulist failed and he only did so to discuss securing a replacement. Had the grievor informed Mr. James that morning of the potential need for him to be replaced at 1:00 p.m., there would have been no need for him to leave the courtroom as he did. It was the grievor’s failure to follow the established process that caused him to leave the courtroom.

35The grievor suggests that he ought to have been replaced as a special matter is not part of the regular docket and accommodation is made for staffing a special matter. First, as stated above, the grievor was required to inform Mr. James that morning of the fact that he had a commitment during his shift that he needed to attend. Had the grievor done so, a replacement would have been secured and he would have been replaced. Second, the grievor’s evidence that the clerks are replaced for special matters was contradicted by that of Mr. James, Ms. Shulist and Ms. Giancristiano all of whom testified that once a clerk is assigned to a courtroom, they are to remain in that courtroom until released by the Judge. It was not put to any of them that any different arrangements were made when a special matter was scheduled for 1:00 p.m.

36Special matters are generally of short duration. Lunch is the time-of-day Mr. James is the busiest trying to juggle the assignment of clerks to cover the courts operating in the afternoon. It is not probable, given their short duration, and Mr. James’ busy workload at the time they would arise, that the staff would routinely be replaced in the event of a special matter. I find the evidence of Mr. James, that once a clerk is assigned to a court room, the clerk is at the whim of the Judge, and he has no further involvement, to be more probable. I find it is not the practice to replace the staff in a courtroom where a special matter is to be spoken to at 1:00 p.m.

37The grievor further blames Mr. James for the events of November 9, 2018, arguing that Mr. James did not try to replace him. Mr. James testified that he had no one to replace the grievor and I find that testimony to be credible. Further, the grievor failed to follow the proper process and instead contacted Mr. James at a very busy time of day, with no advance notice, and demanded to be immediately replaced. The grievor created the situation by not following the established process and the fact that Mr. James did not accommodate his request does not absolve the grievor of his responsibility.

38The Union further argues that the grievor was seeking to be replaced, not only because he had a personal matter to attend to, but because, according to the following email from Ms. Shulist (the “August Email”), he was required to take his lunch break or let Ms. Shulist know in advance:

Taking lunch is not optional. All staff are required to take a lunch break. If there is an occasion where you have to work through your lunch or cannot take a lunch, you must let me (or my designate) know prior to this happening. The only time you do not have to let me know before hand is if there is a scheduled meeting or training session.

39The grievor testified that, because of the email, the situation was akin to an “emergency.” He felt forced to make a decision, “could be damned if you do damned if you don’t, it was an unfair situation to be in.” The grievor stated more than once “I was following the directive.” The Union argues that, when the grievor was trying to get in touch with Mr. James and/or Ms. Shulist, he was not only trying to get replaced, he was also trying to get “authorization to work overtime.”

40Ms. Shulist and Ms. Giancristiano testified that the email was intended to address times when court was not in session as staff are required to work while court is in session. The intent of the email was to impress upon court clerks that, when court breaks for lunch, they are to take their lunch break as opposed to working through doing administrative work. The email was not intended to speak to when court goes through lunch.

41I find the grievor’s testimony that he was trying to get replaced because of the direction contained in the August Email and was trying to contact Mr. James and/or Ms. Shulist because he needed prior authorization to work past 1:00 p.m. to lack credibility.

42On November 9, 2018, the date of the incident, the reason the grievor gave for needing to be replaced when he spoke to both Mr. James and to Ms. Shulist was that he had an appointment or a personal matter. The grievor testified that, during his meeting with Ms. Shulist on November 9, 2018, he repeatedly told her that he needed to be replaced because of an appointment. At no time on November 9, 2018, did the grievor say he could not work through his lunch due to the direction in the August Email or that he was seeking approval to work overtime.

43During the allegation meeting held on November 29, 2018, the grievor said he needed to be replaced as he had a personal engagement at lunch. In an email sent by the grievor to Ms. Giancristiano on December 6, 2018, he said he spoke to Mr. James on November 9, 2018 and let him know that he needed to replace me: “I had to be somewhere during lunch.…” The December 6, 2018, email refers to the Employer “attempting to violate my rights as an employee to a lunch break” but no reference was made to Ms. Shulist’s email, overtime, or the need to get approval to work through lunch.

44The first time the grievor referred to the direction contained in Ms. Shulist’s email as the reason for his need to be replaced was after the Union received the Employer’s document production which included a copy of the August email.

45Thus, I find it improbable that the grievor was seeking to be replaced because of the contents of the August email or a belief that he was not permitted to work through lunch without prior authorization.

46The grievor also testified he left court and was demanding to be replaced because the Employment Standards Act entitled him to a 30-minute break after five hours of work. The grievor testified that the fact that he had a commitment was secondary to the fact that he had an entitlement under the ESA to a lunch break. When asked about his state of mind when he was still in court at 1:16 and he knew he had to be back in court at 1:45, 29 minutes later, the grievor testified “he was pressed right to the line as far as the ESA was concerned and it was going beyond 30 minutes.”

47This grievor’s evidence that he was seeking to be replaced at 1:00 p.m. based on a statutory provision that said he was entitled to a 30-minute break after five hours of work was perplexing given the grievor started work at 9:45 a.m. that day and testified he was able to take some portion of the 35-minute court recess taken earlier that morning as a break. Regardless, however, as pointed out by the Employer in closing submissions, his assertion that he had to leave court because of his right to a break under the terms of the Employment Standards Act, is patently untruthful. The Employment Standards Act was never raised by the grievor as a reason he left court until after the Union had received the Employer’s document production which included the allegation meeting notes in which Ms. Giancristiano is noted to have made passing reference to an entitlement to a 30-minute break after five hours of work. More importantly, however, the fact is that, at the time of the incident, the provision of the Employment Standards Act the grievor relies upon to explain why he was demanding to be replaced did not apply to the Crown as Employer (see: O. Reg. 285/01, s. 20; under Employment Standards Act, 2000, S.O. 2000, c. 41). Thus, it is not possible that, on November 9, 2018, when the grievor was seeking to be replaced, he was doing so based on a statutory right to a 30-minute break after 5 hours of work.

48I find the grievor left the courtroom on November 9, 2018, without authorization or reasonable explanation.

49I turn then to the allegation that the grievor engaged with Mr. James and Ms. Shulist in a manner that was contrary to the Respectful Workplace Policy. The Respectful Workplace Policy provides, in part, as follows:

Policy Statement

4.1. The Ontario Public Service (OPS) is committed to fostering and sustaining a respectful workplace. A respectful workplace is one that values diversity and inclusion, dignity, courteous conduct, fairness, positive communication and professional working relationships. A respectful workplace is inclusive, diverse, equitable, accessible and free from workplace harassment and discrimination.

4.2. The policy of the OPS is to take every reasonable step to:

• cultivate and sustain a respectful, positive, inclusive and supportive work culture

• promote awareness of rights and responsibilities

• prevent, identify and eliminate workplace harassment and discrimination in a timely manner

• improve and/or restore work environments and work relationships affected by incidents or allegations of workplace harassment or discrimination.

5. Purpose

5.1. The purpose of this policy is to:

• promote respectful and inclusive behaviours in support of the health, safety, human rights and dignity of individuals in OPS workplaces

• establish principles for maintaining positive and productive workplaces and mandatory requirements for the prevention of workplace harassment and discrimination.

6.3. This policy upholds the Ontario Human Rights Code (the Code), and complies with the Occupational Health and Safety Act (OHSA), and relevant legislation (including the Accessibility for Ontarians with Disabilities Act, 2005 (AODA) and the Criminal Code of Canada), directives, policies and collective agreements.

Workplace Harassment

6.9. For the purposes of this policy, workplace harassment is defined consistent with the OHSA and the Code as engaging in a course of vexatious comment or conduct against an employee or other worker in the workplace that is known or ought reasonably to be known to be unwelcome or, workplace sexual harassment (defined below) (OHSA, s.1(1)).

7. Principles

7.1. Employees are responsible for respecting the dignity and rights of other employees, other workers and the public they serve. Managers, employees and other workers are responsible for demonstrating standards of respectful and professional behaviour consistent with the principles outlined in this policy, OPS Code of Ethics and organizational values.

7.2. Supporting a respectful workplace including the prevention of workplace harassment and discrimination is an integral part of all workplace activities, and is a shared responsibility requiring cooperation between the employer, employees and, where applicable, bargaining agents.

7.3. Managers, with the assistance of human resource advisors, take timely action to resolve situations contrary to respectful workplaces such as behaviours negatively impacting the workplace (e.g., conflict, poor communication), even where such behaviours are not workplace harassment or discrimination.

7.4. All allegations of workplace harassment or discrimination are treated seriously and handled on a timely and confidential basis in accordance with this policy, the applicable program and applicable law with an aim to preserve the dignity, self-respect and rights of all parties.

8.1. Engaging in workplace harassment or discrimination is a violation of this policy.

Consequences for Policy Violations

8.2. Employees, including managers, found to have violated this policy will be held accountable and may be subject to discipline up to and including dismissal in accordance with the principles of progressive discipline.

50As indicated above, the grievor received confirmation, shortly before 1:00 pm., that a special matter was to be spoken to in the courtroom at 1:00 p.m. He called Mr. James and asked to be replaced. Mr. James told him that he had no one to replace him.

51The grievor testified that, even before his telephone call with Mr. James, he felt he “was in a bit of a crisis” and “he was running out of time.” The grievor called Court Services in Room 156 and spoke to a friend of his who worked there as a member of the administrative staff. He was told by this friend that a court clerk was working in Room 156. The grievor assumed this person was “surplus” and could be assigned by Mr. James to replace him. The evidence adduced by the Employer is that this individual was not surplus but was assigned to work in Room 156 for the entire day. Mr. James testified he had no one to replace the grievor and I find this evidence to be credible.

52The grievor then tried to call Mr. James back many times but did not get through. Mr. James explained in his testimony that this is a very busy time of day for him, and he would have been busy juggling clerks to cover the afternoon schedule. The grievor also tried to contact Ms. Shulist several times but she did not answer. Ms. Shulist testified that she was in meetings at this time.

53At 1:01 the grievor sent an email to Mr. James and Ms. Shulist that reads:

At approximately 12:40pm, Juan James entered K – court and handed me Project Lincoln and left. A few minutes later Stephanie (T/C – office) called to confirm that Project LINCOLN looks like it’ll be a 1pm start before Judge FAVRET, she (Stephanie) knows nothing of this. According to her, Juan JAMES has already confirmed that I (Andre BENJAMIN) will be okay to stay through lunch for this matter. Unfortunately, THIS IS NOT TRUE!!! Juan James has not talked to me about this. I have made prior arrangements.

Please, in the future extend me the courtesy of:

1. letting me know before hand and 2) telling the truth.

Sincerely,

Andre BENJAMIN

54At 1:06 the grievor called Ms. Shulist and left the following voicemail:

Amy it's Andre Benjamin calling it's 6 minutes after 1:00. My court is just about to close for lunch and someone has brought in a project in here um and there and there is no discussion of me staying through. I've got plans during the lunch hour and umm I'd like for you to replace me with someone else for that lunch hour umm as we have a right umm speak to Juan about it 'cause he hung up the phone on me just now. Thank you, bye. K court I’m in.

55At 1:16 the grievor is still in the courtroom. He sent a text message to Ms. Shulist that reads:

Amy I do not appreciate being bullied into a situation. Please speak with Juan James to have me covered during my lunch time. Thanks.

56As set out above, before he left the courtroom, the grievor was asked by Judge Favret to hand her the Informations so that she could note the numerous counsel who would be in attendance. After the grievor left the courtroom, and the proceedings concerning the special matter commenced, Judge Favret is heard to say on the tape: “we do not have a clerk so that is my responsibility, I guess, right now.”

57The grievor proceeded to Mr. James’ office. The grievor told Mr. James he needed to be replaced and said he had somewhere to be. According to the grievor, he was speaking quickly as he needed to impress on Mr. James the importance of his being replaced. Mr. James testified the grievor was “upset,” “visibly unhappy, “unhappy with passion,” and “speaking loudly.” Mr. James testified that, while the grievor was speaking loudly, he has no recollection of him yelling or calling him a snake. Both Mr. James and the grievor testified that Mr. James informed the grievor that he did not have anyone to replace him. Referring to the clerks in Room 125 on their lunch, the grievor told Mr. James to get one of the clerks who were outside. Mr. James responded: “how do you know they are not assigned to a court” and directed the grievor to talk to Ms. Shulist about it.

58Mr. James then stood up, walked out of his office and down the hallway to Ms. Shulist’s office. He tapped on Ms. Shulist’s door and then put his head in. Words were said that the grievor did not hear, the door then opened and a woman left. Mr. James gestured to the grievor who walked into the office. As the grievor entered the office, Ms. Shulist stood up and moved towards him. At this point Mr. James left the office.

59Ms. Giancristiano held a fact-finding meeting with Mr. James on January 10, 2019. According to contemporaneous notes taken by Ms. Giancristiano at this meeting, Mr. James stated:

J.J.: A.B. came into my office, leaned over my desk and said to me that I am a snake because I am not giving the courtesy to replace him. I brought the file into A.B.’s court at 12:20 PM. A.B. called around 1:05 PM asking if I had somebody to replace A.B. and I said to A.B. why I would do that? I did not know about A.B.’s appointment because A.B. did not tell me. I only found about the appointment when A.B. came to my office and confronted me. I might have said to A.B. that if you have a problem speak to Amy.

R.G.: Why did A.B. call you a snake?

J.J.: A.B. was yelling and this is the second time A.B. called me a snake. I was sitting at my desk when A.B. came around, I am not saying that A.B. was going to do something to me and that is when I stood up and walked into Amy’s office. A.B. followed me and I turned around and left.

60It was because of this fact-finding meeting with Mr. James that Ms. Giancristiano concluded that the grievor yelled at Mr. James. Mr. James was asked about the notes taken by Ms. Giancristiano and testified that he has no recollection of having said the grievor yelled at him or called him a snake. Mr. James testified that the language recorded in the notes is not language he would use.

61The Employer submits that the Board should prefer the evidence of Ms. Giancristiano, and the contents of her contemporaneous notes, to that of Mr. James. The Employer argues that Mr. James was a reluctant witness, having recently retired from Court Services. He had to be subpoenaed as a witness and did not advise the Employer in advance as to whether he was going to attend. The Employer submits Mr. James oral testimony, to the extent it is inconsistent with Ms. Giancristiano’s notes, is not reliable.

62While Mr. James’ memory may have faded, and he may have been a reluctant witness, he was firm in his evidence that the grievor did not yell at him. The notes, when put to him, did not alter his testimony. In fact, he distanced himself from the notes by saying they contained words he would not have said. I accept Mr. James’ oral evidence and find the grievor to have been upset, passionate and speaking loudly during their meeting, and that the grievor did not yell at him.

63After walking the grievor to Ms. Shulist’s office, Mr. James left, and the door closed automatically; the door requires a door stop to be engaged for it to stay open.

64The grievor testified he was shocked when Mr. James left. He said: “hey bring him in here, let’s deal with it.” And “I need to leave, he’s refusing to replace me.” The grievor testified that he was anxious as he was trying to get someone to relieve him so he could attend to his personal matter and now he is closed into an office. According to the grievor, Ms. Shulist blocked him into the office. The grievor described himself as “hyper.” The grievor testified that Ms. Shulist was standing between him and the door. He testified: “when you are in a hurry, and someone pins you down, it creates a certain rush and angst.”

65According to the grievor, Ms. Shulist did not convey the same sense of urgency as he was feeling. Her energy was slower, and she was waiting for him to finish speaking. The grievor testified Ms. Shulist was “acting like” she was not aware of his need, and requests, to be replaced. The grievor testified his energy, was “urgent and quick” while her energy was “slow and methodical.” The grievor testified that Ms. Shulist asked him to “keep your voice down.” The grievor saw Ms. Shulist’s calm and quiet as unresponsive to his sense of urgency. The grievor testified that he could sense that Ms. Shulist was thinking and had something she wanted to say but he kept “speaking quickly” and “complaining.” Again, according to the grievor, Ms. Shulist asked him to “stop shouting at me.” The grievor testified he was trying to control his energy. The grievor told Ms. Shulist she was making it an issue between the two of them when his problem was with Mr. James. Again, the grievor described himself as “in rapid fire.” He stated he thought his rapid fire was distracting Ms. Shulist from concentrating on what she wanted to say and she was “unable to get her words out.” The grievor testified Ms. Shulist wanted to say something but because he was speaking so quick she could not say it.

66At one point the grievor took “several emphatic steps backwards” and said to her, “maybe this is less intimidating?” Ms. Shulist responded, “I am not afraid of you.” The grievor testified that Ms. Shulist might have said that she is not afraid of him because she may have taken his words to be taunting. The grievor denied that he was yelling but said: “I was speaking quickly, I was a little bit hyper. Rapid fire.” According to the grievor, after Ms. Shulist said she was not afraid of him, he continued saying he had to be somewhere repeating himself three or four times. At this point, Ms. Shulist, pointing at the door, said “okay leave.” Ms. Shulist then went to her desk and the grievor moved to the door where he turned and said: “replace me please.”

67The grievor testified that he never blocked Ms. Shulist’s access to the door, except for when he himself was leaving the office, although he felt Ms. Shulist blocked his access to the door. The grievor testified he never yelled or flailed his arms. The grievor stated that he was stressed entering Ms. Shulist’s office, and it might have been bewildering for Ms. Shulist but not threatening.

68Ms. Shulist testified she had no prior knowledge of the grievor’s request to be replaced or his interactions with Mr. James until the grievor was standing in her office. According to Ms. Shulist, the grievor did not explain but rather was yelling and acting very aggressively. She testified that the grievor was blocking her within the U shape of her desk, and she could not exit the office. Ms. Shulist testified the grievor got very close to her at one point and put his face very close to hers. Ms. Shulist described the grievor as flailing his arms and pacing and yelling. Ms. Shulist’s testimony is otherwise consistent with the grievor’s version of what was said by herself and the grievor.

69The grievor argues that, when Ms. Shulist pointed at the door and told him to leave, she was giving him permission to leave for his lunch. I find this improbable. According to the grievor’s own account of his meeting with Ms. Shulist, he was talking to her “rapid fire,” complaining, and repeated multiple times that he had to be somewhere. He was urgent and quick. The grievor acknowledges that on more than one occasion Ms. Shulist asked him to stop shouting at her. He testified, she may have taken his words as taunting, and he took several steps backwards and then asked her, “is this less intimidating?” In that context, when Ms. Shulist pointed at the door and told the grievor to leave, it is improbable that she was giving him permission to take lunch; it is far more probable that she was directing him to remove himself from her office.

70When the grievor left Ms. Shulist’s office, he walked past Mr. James’ door. Mr. James went down to Ms. Shulist’s office and found Ms. Shulist sitting down and visibly shaking. According to Mr. James, it looked like she had been crying. Ms. Shulist told him she did not want to talk about it. Mr. James went to lunch.

71Ms. Shulist called Ms. Giancristiano who attended at her office. Ms. Giancristiano described Ms. Shulist as very upset and shaken. Ms. Giancristiano testified that Ms. Shulist had been crying. Ms. Giancristiano asked her if she wanted to go home, and Ms. Shulist said she just needed time to get her emotions in check.

72There are inconsistencies in the testimony given by the grievor and Ms. Shulist as to what happened in Ms. Shulist’s office. I do not find it necessary decide which version is accurate. First, as set out above, the Employer did not impose discipline on the grievor on the basis that he blocked the door, flailed his arms or threatened Ms. Shulist. If such occurred, the Employer does not rely upon it in support of the imposition of the seven-day suspension. Second, the grievor’s own evidence is sufficient to establish his conduct towards Ms. Shulist contravened the Respectful Workplace Policy.

73According to the grievor and Mr. James, the grievor was upset and speaking loudly before arriving at Ms. Shulist’s office. When, upon arriving at Ms. Shulist’s office, Mr. James didn’t stay, the grievor became even more upset as he wanted Ms. Shulist to direct Mr. James to replace him. When the door to the office closed, the grievor’s upset was further increased because he felt pinned in, and he needed to attend to his personal matter. Thus, it is evident that during his interaction with Ms. Shulist the grievor was very upset.

74The grievor’s own description of what transpired in Ms. Shulist’s office establishes he: was speaking loudly and quickly, complaining, repeating himself and demanding to be replaced; not giving Ms. Shulist a chance to speak; not stopping his rapid fire talking when he recognized his own demeanour was upsetting her and preventing her from being able to talk; stepping back from her at one point and saying “maybe this is less intimidating;” and was asked by Ms. Shulist at least twice to stop shouting at her before she eventually demanded he leave her office. The grievor’s evidence paints a picture of his overwhelming Ms. Shulist with his words, tone, volume, and placement in proximity to her with the effect that she is unable to talk. Following her interaction with the grievor, Ms. Shulist is visibly upset and on the verge of tears. The grievor’s own account of the encounter, and Ms. Shulist’s demeanour following the encounter, establishes that the grievor behaved towards her in a manner that was not respectful, courteous, or professional.

75I find the grievor’s conduct towards Ms. Shulist was inconsistent with the Respectful Workplace Policy.

76In summary, I find the grievor left the courtroom on November 8, 2018 without authorization and, prior to doing so, told the Judge that Mr. James was replacing him which the grievor knew to be untrue. I further find the grievor engaged in conduct during his meeting with Ms. Shulist that contravened the Respectful Workplace Policy.

Appropriateness of the Disciplinary Penalty

77The next issue to be determined is whether a seven-day suspension is appropriate in the circumstances.

78The Employer argues leaving the courtroom without permission is contrary to the grievor’s duties and responsibilities as a court clerk and registrar. The Employer points to section 76 of the Courts of Justice Act as well as the relevant sections from the Courtroom Procedures Manual. The Employer submits the grievor left the courtroom despite being told by Mr. James that there was no one to replace him and without hearing anything different from Ms. Shulist. He also misled the Judge that Mr. James was going to replace him when he knew or ought to have known that was untrue. The Judge was left to perform the clerk function herself until the grievor returned to the courtroom.

79The Employer argues the grievor’s conduct was insubordinate and relies on Mitchnick and Etherington, Labour Arbitration in Canada (Toronto, 2006) at page 207; Brown and Beatty, 7.41 – Refusal to Obey Orders; and CUPE, Local 4682 (Nodding) v. South Shore Regional School Board, 2014 CanLII 13574 (Richardson).

80The Employer submits that leaving work without permission is cause for discipline as indicated in Acadian Barrel Finishing Co. v. USWA (Turab), 162 L.A.C. (4th) 219 (Nairn) at paragraph 44:

Fundamental to the employment relationship is that one attend work when scheduled to work. Similarly, one does not have the prerogative to simply leave work during scheduled hours. Leaving work without permission is cause for discipline. Leaving work with the knowledge that permission to leave has not been granted is insubordinate.

81The Employer also relies on: Central East Local Health Integration Network v. Ontario Nurses’ Association (N.S. Grievance) (2019), 312 L.A.C. (4th) 329 (Stout); Toronto District School Board v. Canadian Union of Public Employees (Cupid Grievance) (2020), 323 L. A. C. (4th) 105 (Kaplan); Service Employees International Union Local 1.ON (Hettrick Grievance) v. Sun Parlour Emergency Services (2009), 180 L.A.C. (4th) 433 (Jesin); Brown and Beatty, Canadian Labour Arbitration, 5th ed., at 7:21.

82Concerning the violations of the Respectful Workplace Policy, the Employer relies on Canadian Labour Arbitration, 5th Edition at 7:32, Brown and Beatty:

Physically and or verbally abusing, and acting aggressively towards others, is as deviant and unacceptable behavior in the workplace as it is in society at large. Assaults, bullying, harassment, racially insulting remarks and threats made in the course of a person's employment, are universally regarded as being fundamentally at odds with an employer's interest in creating a positive and productive working environment, and with the health, safety, and general well-being of its employees. The law is clear that employers have a duty to take whatever action is necessary to protect the welfare of its workforce and can be held accountable if they do not.

83The Employer further relies on Ontario Public Service Employees Union (Freisinger) and Ontario (Liquor Control Board of Ontario), 2001 CanLII 48178 (ON GSB) (Hewat); OPSEU (Alaimo) v. Ontario (Ministry of the Solicitor General), 2019 CanLII 118225 (ON GSB) (Misra); OPSEU (Hamilton) and Ontario (Ministry of Community Safety and Correctional Services), 2019 CanLII 35301 (ON GSB) (Misra); and Trent University Faculty Association (Bialuschewski) and Trent University, 2021 CanLII 77474 (ON LA) (Kanee).

84The Employer submits that while the grievor has been employed as a flexible part-time court clerk and registrar since November 2010 and has no prior discipline on his record, these generally recognized mitigating factors, are not sufficient to offset the severity of his misconduct. The Employer argues that, since November 9, 2018, and continuing throughout the hearing, the grievor failed to take responsibility or accountability for his actions and has not expressed remorse or even acknowledged that his behaviour contributed to the situation. This factor was found as a reason not to interfere with a disciplinary penalty in Trent University, supra, and OPSEU (Basta) Ontario (Ministry of Government and Consumer Services), 2015 CanLII 32591 (ON GSB) (Williamson). Rather, the Employer submits, the grievor maintained the event was the fault of others. The Employer further argues the grievor’s testimony was, in parts, disingenuous and defied credibility.

85The Employer argues the penalty imposed is appropriate and, in the alternative, argues, given the discipline imposed is in the range of reasonableness, the Board ought not to substitute another penalty. In support, the Employer relies on: Unimin Canada Ltd. V. United Steelworkers, Local 5383 (Dave France and Dean Lachapelle), 2017 CanLII 31794 (ON LA) (Slotnick); Trent University, supra; and Basta, supra.

86The Union argues that the facts are not sufficient to establish that the grievor had any intent to defy the Employer’s authority or refuse to obey a direction of the Employer, as is required to substantiate an allegation of insubordination.

87In the alternative, the Union argues the discipline imposed is excessive and ought to be reduced. The Union relies on OPSEU v. Ontario (Ministry of the Solicitor General) (Rorke), 2020 CarsellOnt 13673 (Misra) in which the discipline imposed on a correctional officer for having left his post for hours and not returning after having been repeatedly ordered to do so, was reduced by the arbitrator from a one-day suspension to a written reprimand. The Union further relies on Hendrickson Spring Stratford Operations v. U.S.W.A., Local 877 (Satchell), 2006 CarswellOnt 789 (Hinnegan) in which a two-day suspension was found to be appropriate where the grievor was found to have been insubordinate when she refused to comply with a direction that she meet with her manager at the Daily Schedule Control Board. The Union further points to Central East Local Health Integration Network v. ONA, (N. A. Grievance), (2019) 312 L.A.C. (4th) 329 (Stout) in which a three-day suspension for arriving late and leaving early on numerous occasions was upheld by the arbitrator although described as a “little harsh.” The Union argues the instant matter, in comparison, should attract less discipline as it involves only one incident of leaving the court, the grievor did not leave the workplace and the grievor has a clean disciplinary record. The Union also relies on Toronto District School Board v. Canadian Union of Public Employees, (Cupid Grievance), [2020] O.L. A.A. No. 317 (Kaplan) in which a letter of reprimand was upheld for a teacher who left work to attend a protest. The Union argues the difference in quantum of penalty as between TDSB and the instant matter is notable.

88In respect of the grievor’s conduct during the meeting with Ms. Shulist, the Union argues it does not warrant any discipline. In the alternative, the Union argues the discipline imposed is too harsh. The Union submits there have been numerous decisions by the GSB in which a one-day suspension was found to be the appropriate penalty for a heated interaction with a manager. By way of example, the Union cites OPSEU v. Ontario (Ministry of Community Safety and Correctional Services) (Lamb), 2017 CarswellOnt 18547 (Briggs), OPSEU (Alaimo) v. Ontario (MCSCS), 2019 CanLII 118225 and OPSEU (Hamilton) v. Ontario (Ministry of Community Safety and Correctional Services), 2019 CanLII 35301 (ON GSB).

89The Union submits there are numerous mitigating factors weighing in the grievor’s favour. The grievor is a long-service employee, having been employed by the Ministry of the Attorney General for approximately 17 years. He has a clean disciplinary record, having never been subject to discipline.

90The Union further submits that the evidence establishes that was an isolated incident. There is no evidence of prior instances of behaviour by the grievor like the allegations in this case. To the contrary, the Union submits, Mr. James testified that the grievor was always professional, that he is respected by Jurists and his peers. Ms. Giancristiano testified that Mr. Benjamin was “always very professional and very courteous.” In support the Union relies on British Columbia v. B.C.G.E.U. (Correctional Services Component), 1987 CanLII 8881 (BC LA), 1987 CarswellBC 1984 (Hope) at paragraph 71.

91The Union argues there is no evidence before the Board that would suggest that the grievor’s conduct on November 9, 2018 was pre-meditated. Rather, the evidence supports the finding that it was a momentary and emotional aberration that was prompted by the difficult position in which the grievor found himself that day. The Union submits, these mitigating factors weigh heavily in favour of reducing the penalty imposed on the grievor.

92There is a dispute between the parties as to whether the grievor was insubordinate when he left the courtroom on November 9, 2018. I have found the grievor knew that he was not to leave the court without the permission of the Judge. The grievor knew the court does not keep regular hours and he could not count at having lunch at 1:00 p.m. The grievor knew, if he needed to be away from the court at a specific time, he was to inform Mr. James as early as possible so a replacement could be found. The grievor knew he had a personal matter at 1:00 p.m.; he chose not to inform Mr. James that morning and he left court without the permission of the Judge. I find the grievor wilfully failed to abide by the Employer’s policies and his conduct amounts to insubordination.

93In addition to being insubordinate, the grievor was untruthful when he told the Judge Mr. James was going to replace him and violated the Respectful Workplace Policy during his encounter with Ms. Shulist.

94Each of the parties relies on cases involving an employee who was disciplined for leaving work without authorization. Each case turns on its own facts and none of the cases are identical to the instant matter. What a review of the cases reveals is that the appropriate penalty for quite similar misconduct can vary widely; the appropriate penalty is dependent on a multitude of factors other than simply the nature of the misconduct itself.

95The discipline imposed on an employee who leaves their post without authorization ranges, in the cases relied upon by the parties, from a written reprimand to a very lengthy suspension. The decisions in which lengthy suspensions are found to be appropriate concern positions there the employee’s absence could have resulted in detrimental consequences. By way of example, in Sun Parlour Emergency Services, supra, a primary care paramedic who provided basic life support was reinstated 19 months after discharge with no compensation for leaving work to have dinner with her husband. In contrast, the decisions in which a written reprimand or a one-day suspension are found to be appropriate contain no reference to any detrimental consequences that could have potentially arisen because of the employee’s absence. Again, by way of example, the decision of Rorke, in which the grievor was given a written reprimand for leaving his post in a correctional institution, contains no discussion of the potential impact of the grievor’s absence.

96The evidence in this matter establishes that the court clerk performs two critical functions. In the event of an emergency, the court clerk is to press the panic button and use the phone on their desk to call 911. In addition, the court clerk is to secure the Information and the court documents to ensure their integrity. If an emergency had occurred while the grievor was absent from the courtroom, there could have been serious detrimental consequences. Further, unlike any of the cases relied upon, the presence of a court clerk in a courtroom is a matter of statute. Section 76 of the Courts of Justice Act provides that court clerks are to act at the direction of the chief justice of the court and court personnel assigned to a courtroom shall act at the direction of the presiding Judge. The grievor’s duty to remain in the courtroom unless excused by the Judge is grounded in statute and serves important safety and security considerations.

97This matter involves a further element of misconduct that does not present in any of the decisions relied upon by the parties. As argued by the Employer, the grievor in this instance knew he required the authorization of the Judge to leave the courtroom and, when she asked if he was staying, he said no and then went on to tell her that Mr. James would replace him when he knew that representation to be false. The grievor, in an effort to get the authorization he knew he needed to leave the courtroom, was dishonest to the Judge.

98The grievor’s violations of the Respectful Workplace Policy, while not advanced by the Employer as amounting to harassment, very much call into question the Employer’s legal obligations under the Occupational Health and Safety Act. The Employer has an obligation to take steps to protect all employees, including Ms. Shulist, from being harassed, and has taken steps to do so by way of the Respectful Workplace Policy. Should the Employer fail to protect employees, it could face complaints against it and be exposed to declarations of wrongdoing and/or monetary penalties.

99The Respectful Workplace Policy is aimed at fostering a respectful workplace. A respectful workplace, amongst other things, values courteous conduct, positive communication, and professional working relationships. The Policy states that employees are responsible for respecting the dignity and rights of other employees and are responsible for demonstrating standards of respectful and professional behaviour. The Policy requires managers to take action to deal with behaviours negatively impacting the workplace even where the behaviour does not constitute workplace harassment. Employees found to have violated the Policy are to be held accountable and may be subject to discipline up to and including dismissal.

100The Union relies on the grievor’s clean record and lengthy employment history, the fact that this was an isolated incident, and his reputation as a calm, quiet individual, as mitigating factors. The Employer does not dispute that these mitigating factors are present but argues there are numerous aggravating factors, including the fact that the grievor never accepted responsibility for his conduct, sought throughout the proceedings to place blame on others, and was untruthful in several respects. The Employer further argues the penalty imposed is within the range of reasonableness.

101Trent University, supra, is a case in which the arbitrator found the University had established just cause based on only one of the two allegations advanced. Arbitrator Kanee rejected the Union’s submission that, as a result, the penalty imposed must be reduced. After quoting from Unimin Canada Ltd., supra, wherein Arbitrator Slotnick noted the jurisprudence cautions against arbitrators tinkering with disciplinary penalties that are within the range of reasonableness, Arbitrator Kanee described his task as “to consider whether a one-week suspension is within the reasonable range of responses.

102In the course of carrying out that task, Arbitrator Kanee referred to Toronto Rehabilitation Institute v. Canadian Union of Public Employees, Local 156 (Monah Grievance) [2010] OLAA No. 144 in which the arbitration board chaired by Arbitrator Knopf upheld a five-day suspension given to a registered nurse with no prior record for a single act of insubordination. In reaching her conclusion, Arbitrator Knopf found the penalty not to be outside the realm of reasonableness:

26 While a five-day suspension for a first offence of insubordination is a significant penalty, it is not outside of the realm of reasonableness given all the circumstances of this case. Balanced against that is the fact that the Grievor has provided us with no rationale or labour relations reasons to interfere with the result. To the contrary, her unreliable testimony, her refusal to take any personal responsibility and her continued reluctance to acknowledge the seriousness of insubordination leave us with no reason to interfere with the suspension that was issued.

103Arbitrator Kanee similarly recognized that a one-week suspension was a significant penalty and also found it to be within the range of reasonableness for the one act of misconduct he found to have been substantiated. Arbitrator Kanee stated that, had the grievor shown remorse, accepted responsibility, and was unlikely to act in defiance of the employer’s direction in the future, the penalty would have been reduced. However, the grievor’s response and testimony during the hearing did not satisfy Arbitrator Kanee in respect of those factors and thus he found no reason to interfere with the suspension issued.

104In this workplace, and considering the potential consequences of the grievor’s actions, I find the seven-day suspension to be within the range of reasonableness. Given the grievor’s lengthy and discipline free employment record, combined with the fact that this was an isolated incident not in keeping with his usual demeanour, I would have reduced the penalty. However, I am quite troubled by the attitude adopted by the grievor in this matter. The grievor never once took any responsibility for his role in what transpired. Never did the grievor acknowledge he ought to have told Mr. James of his need to be out of the courtroom at 1:00 p.m. that morning so that Mr. James would have had time to organize a replacement if the need arose. Rather, the grievor recited several excuses, most of which were not exculpatory, and some of which were untruthful, in an attempt to shift blame onto Mr. James. Further, in his interaction with Ms. Shulist, even when his own words were put to him as to what transpired, the grievor would not acknowledge that his conduct was not respectful or professional. Rather, the grievor sought blame Ms. Shulist, citing her calm and methodical energy, and her requests that he lower his voice, as being unresponsive to his demand that he be replaced. Seeing no acknowledgement from the grievor as to his role in the events that transpired, his dishonesty on a number of points, and attempts to shift blame, I see no reason to interfere with the quantum of discipline imposed.

105Accordingly, the grievance is dismissed.