GSB# 2022-3841; 2022-3842

UNION# 2022-5112-0161; 2022-5112-0162

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Green-Espinal et al)

Union

• and -

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

Employer

BEFORE

Adam Beatty

Arbitrator

FOR THE UNION

James Craig Morrison Watts Hurtado Counsel

FOR THE EMPLOYER

Andrew Lynes Treasury Board Secretariat Legal Services Branch Counsel

HEARING

October 16, November 7, 9, 23, December 7, 2023; July 22, 25 and August 12, 2024

Decision

A. Background

1Correctional Officers (“CO”) Natalie Green and Gaurisha Sardana (“the grievors”) filed grievances alleging that they were bullied and harassed by Sergeant Bazgar. During the relevant time, both grievors worked as programme officers in “segregation review” (“seg review”) at Toronto South Detention Centre (“TSDC”). Their time in seg review was a temporary assignment due to most regular programming being shut down during Covid-19.

2The grievors were responsible for providing programming and support for inmates who were being held in segregation from other inmates. The purpose of the programming was to provide inmates with a “meaningful interaction” outside of their cells on a regular basis. The type of programming available to inmates varied considerably. Inmates could receive counselling, life-skills training or anger management courses. Alternatively, they could colour, do crossword puzzles, play chess or play cards. Some inmates were allowed to watch TV, or listen to music or read newspapers.

3There was considerable evidence regarding the importance of ensuring that inmates receive regular, consistent, meaningful interaction outside of their cells. It was clear that fulfilling this obligation was important to all of the parties. It was also clear that the purpose of this programming was to help inmates leave the TSDC in a better situation than when they arrived.

4The evidence established that the parties disagreed, sometimes sharply, about how best to fulfill this obligation. The grievors were clearly of the view that Sergeant Bazgar emphasized giving the inmates time out of their cells at the expense of providing a meaningful interaction. They were skeptical that the programmes Sergeant Bazgar wanted them to offer to the inmates provided any kind of meaningful interaction. CO Green set out some of these concerns in an email sent on May 19, 2022.

5Conversely, Sergeant Bazgar thought the grievors failed to ensure that inmates received sufficient time out of their cells. He indicated that the grievors (and other officers) failed to appreciate the rationale for giving inmates time out of cell as often as possible. He was also of the view that the grievors failed to appreciate how inmates’ needs differed and that watching TV or listening to music, for example, could provide a meaningful interaction for an inmate.

6That being said, and notwithstanding the evidence I heard on this point, for the purpose of this decision I need not determine whether the grievors’ approach towards the goals of programming in seg review, or that of Sergeant Bazgar, was more appropriate. It is sufficient to note that the parties took divergent views on the appropriate activities the grievors should be engaging in with the inmates.

7The parties disagreed about other issues as well. For example, the parties took issue with what time the grievors were expected to report to Sergeant Bazgar’s office at the start of their shift. The grievors shift started at 8:00 a.m. According to the grievors, prior to Sergeant Bazgar taking over seg review, they would report to the General Duty Manager at 8:00 a.m. They would then read the daily happenings (because they didn’t get muster) and review the daily briefing notes, before reporting to the seg review office at approximately 8:30 a.m. Sergeant Bazgar expected the grievors to be in the seg review office by 8:00 a.m. Again, I need not determine who was correct in this dispute. It is sufficient to note that this was another area of contentious disagreement between the parties.

8The parties also disagreed about the grievors role on the Black History Month Committee (the “BHM Committee”) and the extent to which it interfered with their duties at seg review.

9In broad strokes, the grievors alleged that Sergeant Bazgar engaged in repeated comments and conduct designed to belittle, demean, harass, insult, and intimidate them. Sergeant Bazgar denied the bulk of the allegations. With respect to the allegations he acknowledged having happened, Sergeant Bazgar took the position that he was providing direction and feedback to recalcitrant employees who refused to follow his directions. In the circumstances, he argued that his conduct did not amount to harassment or bullying.

10For the reasons set out below, I am satisfied that Sergeant Bazgar harassed and bullied the grievors. In so doing, he violated the collective agreement, the employer’s workplace harassment and discrimination policy, and the Occupational Health and Safety Act. Accordingly, the grievances are upheld. In reaching this conclusion I have determined that the grievors were more credible witnesses and that as such, with one exception, their evidence is to be preferred. I have also concluded that the conduct at issue constituted harassment and bullying.

B. The Allegations

(i) Intimidating, Demeaning and belittling comments

11According to the Union, Sergeant Bazgar’s conduct and comments towards the grievors created a toxic workplace. He regularly engaged in behavior meant to intimidate, harass, demean and belittle the grievors. The Union argued that he refused to engage with either of the grievors if they had questions about his approach to meaningful interaction out of the cell. If the grievors disagreed with his approach they were met with comments meant to bully and harass them.

12Sergeant Bazgar denied ever yelling at CO Green or CO Sardana. Sergeant Bazgar stated that he was a loud individual and that he firm, but he stated that he did not yell.

13CO Green stated that Sergeant Bazgar insulted her on a regular basis and repeatedly directed demeaning comments towards her. For example, Sergeant Bazgar once asked CO Sardana where CO Green was and asked if “she was on one of her two hour lunches.” The question was asked in front of other COs and inmates.

14CO Green testified that when she raised concerns about whether the programming being offered to inmates complied with the requirements of the Institutional Services Policy and Procedures Manual (the “ISPPM”) Sergeant Bazgar yelled at her, told her to just “do her job”, and called her incompetent and unruly. According to the ISSPM inmates were expected to receive time out of cell in order to engage in meaningful interaction for at least two hours every five days.

15CO Green also stated that Sergeant Bazgar was also known to tell her that it was her fault anytime she did not complete the list of inmates who were supposed to receive time out of their cells. He also would ask her, rhetorically, why she couldn’t just do what she was told. CO Green testified that on other occasions he asked her “what kind of officer” she was, what she was “good for”, and what she could do for him. CO Green testified that these comments were demoralizing and demeaning.

16CO Sardana testified about meetings that took place at the start of the day with Sergeant Bazgar. Prior to Sergeant Bazgar taking over, these meetings were cooperative. The program officers and the Sergeant on duty would discuss which inmates would be offered time out of their cell and what meaningful interactions they would engage in. Conversely, Sergeant Bazgar unilaterally decided who would receive programming and what that programming would be. More importantly, CO Sardana testified that when, in or around mid-January 2022, she tried to explain to Sergeant Bazgar how inmates had been chosen previously, he slammed the table with his hand, told her to take a sticky note with the inmates’ names on it, that he didn’t want to discuss it, and told her to leave his office. CO Sardana indicated that she was confused by what had happened to make him so angry.

17On another occasion, in January or February 2022, CO Sardana thought that the inmate Sergeant Bazgar had chosen for time out of cell had recently received programming. When she tried to tell Sergeant Bazgar, he again slammed his desk, asked her why she didn’t understand his directions, and told her to get out of his office. CO Sardana testified on both occasions (and many others) Sergeant Bazgar got very angry very quickly, raised his voice, and yelled at her.

18CO Sardana testified that this conduct occurred so often that she would have preferred not to have to talk to Sergeant Bazgar at all. She indicated that she hoped he would just send her names by email so that she didn’t have to interact with him and potentially get yelled at.

19In cross examination, CO Green acknowledged that the daily seg review meetings were not more strict under Sergeant Bazgar than they had been under other Sergeants.

20In an OR filed on March 11, 2022, CO Green wrote that there were “countless” times when Sergeant Bazgar yelled at her, hung up on her (over the phone), or made threatening comments towards her. According to CO Green, Sergeant Bazgar routinely yelled at her to get out of his office, or that he was “not going to argue” with her.

21CO Green also noted that there was an incident on March 7, 2022 (detailed in the March 11 OR) where Sergeant Bazgar became angry when an inmate who was acting up was returned to his cell instead of participating in meaningful interaction out of cell. She described feeling intimidated by Sergeant Bazgar’s comments.

22Sergeant Bazgar testified that he was upset because the grievors had failed to reach out to him before returning this inmate to his cell. According to Sergeant Bazgar, this inmate had been in segregation for over five days and it was imperative that he get at least two consecutive hours out of his cell while engaged in meaningful interaction. Sergeant Bazgar testified that he had made this a point of emphasis and was disappointed that they were not following his direction. That being said, he also denied yelling at CO Green (or CO Sardana) during this incident.

23In the March 11 OR, CO Green also indicated that she felt that Sergeant Bazgar threatened her when, on March 7, 2022, he said that she had “better be in his office” the next day at 8:00 a.m. because Staff Sergeant Paul wanted to meet with her and CO Sardana (and CO Winful). When they arrived the next day, Staff Sergeant Paul was not there and Sergeant Bazgar told them that his presence was not necessary. According to CO Green, Sergeant Bazgar was angry and used a very stern voice when relaying his message. Both CO Green and CO Sardana testified that Sergeant Bazgar used the threat of Staff Sergeant Paul being present on multiple occasions, although he never actually attended their morning meeting. CO Green testified that she believed Sergeant Bazgar had used Staff Sergeant Paul’s name as a way to intimidate the grievors into reporting before they had a chance to read their morning email and review the daily briefing notes.

24CO Green also set out these concerns in an email to the Acting Manager of Social Work Services Sharie Thompson-Rudder on March 7, 2022. In that email, CO Green noted that Sergeant Bazgar’s conduct made her feel uncomfortable and left her not wanting to report for duty.

25CO Sardana also testified about this incident and Sergeant Bazgar’s repeated demands that the grievors arrive in his office by 8:00 a.m. CO Sardana noted that unlike most shifts that start at 7:00 a.m. programme officers started at 8:00 a.m. As such, they were not present for morning muster when officers are brought up to speed about what happened the previous day. In order to ensure that programme officers were up to speed on any developments over the previous 24 hours, they would be sent the muster notes by email. CO Sardana testified that officers were required to read the muster notes so that they knew the inmates that were in seg review and why they were there. She indicated that reading the muster notes had significant safety implications.

26According to CO Sardana, despite the importance of reviewing the muster notes before starting, Sergeant Bazgar insisted that the COs arrive at the office by 8:00 a.m. If they didn’t (and they regularly did not), he would yell at them, roll his eyes or make other gestures, and make statements belittling them when they arrived.

27Sergeant Bazgar indicated that he emphasized having the COs report to him at 8:00 a.m. in order to maximize the number of inmates who would receive time out of their cells. Sergeant Bazgar explained that if the COs did not report until 8:30 a.m. it had a cascading effect that significantly reduced the number of inmates that they could interact with. He also testified that the more he tried to insist on the grievors arriving at his office at 8:00 a.m. the more they pushed back.

28Sergeant Bazgar filed an OR dated March 16, 2022. The OR was filed following a request from Staff Sergeant Paul that he detail his interactions with CO Green, CO Sardana and CO Winful. In this OR, Sergeant Bazgar noted that he did not think the programme officers were meeting expectations, but he was optimistic that with his “support and guidance” they would improve.

29In the OR, Sergeant Bazgar also singled out CO Sardana and CO Green for not getting enough inmates time out of their cells. He noted that despite his best efforts, neither of their performances improved in February or March 2022. As such he kept tabs on the interactions they were offering inmates. He stated that he was constantly inquiring about the activities they were offering and wanted to know how he could help.

30Sergeant Bazgar indicated that he held a meeting with CO Green and CO Sardana in early March 2022. Sergeant Bazgar wrote that during that meeting he reminded them that they were required to attend his office by 8:00 a.m. According to Sergeant Bazgar, despite this reminder CO Green and CO Sardana continued to arrive between 8:30 and 8:40 a.m.

31Finally, Sergeant Bazgar noted that under his supervision he sought to significantly increase the number of times inmates received time out of their cell. He suggested that his elevated expectations might have been the cause for some of the difficulties between himself and the officers.

32CO Sardana also testified about an incident that occurred on April 11, 2022 (detailed in an OR dated April 13, 2022). According to CO Sardana, on April 11, 2022, Sergeant Bazgar handed her a note with 4 additional inmates who were to receive time out of cell that day. CO Sardana believed that one of the inmates had received time out of cell on April 9th. When she told Sergeant Bazgar that the inmate had had time out of cell recently, Sergeant Bazgar angrily told her that he didn’t care and that the inmate in question was to receive more time out of cell. He then asked CO Sardana to follow him because he wanted to teach CO Sardana something. What followed was, according to CO Sardana, the worst work experience of her career.

33CO Sardana testified that she followed Sergeant Bazgar to his office where he proceeded to “teach” her about the human rights implications of providing inmates with time out of their cells. According to CO Sardana, when they entered Sergeant Bazgar’s office he angrily erased a white board and threw the eraser on the floor. He then put a chair in front of the white board and told CO Sardana to “sit here.” CO Sardana indicated that he was yelling at her throughout and, when she told him she had a question, he told her to “keep quiet and just listen”. CO Sardana stated that Sergeant Bazgar was getting closer and closer to her as he was talking to her and that that throughout this exchange Sergeant Bazgar made repeated demeaning statements to her and asked her questions designed to make her feel stupid. He told her that she did not understand the “big picture”.

34CO Sardana recalled that at one point Sergeant Bazgar was telling her that when inmates didn’t get sufficient time out of cell he had to file reports with the Assistant Deputy Minister (the “ADM”). He then got very close to her face, and with one hand on the arm of her chair, pointed between her eyes and nose with his other hand, and in an angry, and threatening voice asked her “do you know even know who the ADM is”.

35Sergeant Bazgar testified that there was conflict between management and staff with respect to how seg review should be implemented and what activities constituted a meaningful interaction. Sergeant Bazgar indicated that part of the problem stemmed from officers seeing the activities being offered to inmates in seg review as being a reward as opposed to a requirement under the ISPPM. He described the staff’s attitude as “a challenge”.

36According to Sergeant Bazgar, he developed a “crash course” to explain to the staff the goals and obligations of seg review under ISPPM. He stated that the purpose was to teach staff to understand and differentiate between “meaningful interaction” and “rewarding inmates” for misconduct. Sergeant Bazgar testified on April 11, 2022 he simply offered CO Sardana the “crash course” in order to teach her the various human rights implications of inmates being held in segregation and why it was so important that they receive time out of cell. CO Sardana disagreed with the assertion that Sergeant Bazgar was simply trying to explain some of his responsibilities in seg review.

37When asked about the April 13 OR, Sergeant Bazgar indicated that “he loved it” and that “it should have been written” by him. Sergeant Bazgar stated that he understood the goal of the ISPPM to be to get inmates out of their cells as often as possible. As such, whether or not the inmate at issue had been out of his cell recently was immaterial to Sergeant Bazgar.

38Sergeant Bazgar denied engaging in any of the threatening conduct described by CO Sardana in the April 13 OR. He also stated that the April 13 OR failed to include a number of important allegations that CO Sardana was now claiming had occurred. Finally, he testified that there was a witness in his office when the alleged incident with CO Sardana took place.

39CO Sardana also testified about an incident that occurred on April 13, 2022. Sergeant Bazgar told her to give an inmate time out of cell by watching a movie. CO Sardana suggested that this inmate in particular might benefit from an anger management program session. Sergeant Bazgar responded by getting angry, raising his voice, and telling her that he did not want to argue with her. He then walked out of the unit. According to CO Sardana the incident occurred in front of inmates and other officers. CO Sardana testified that this incident made her feel insulted and embarrassed. This incident was also detailed in an OR dated April 15, 2022.

40Sergeant Bazgar testified that the inmate in question had been charged with murdering his girlfriend or fiancé and was under the care of a psychiatrist and a mental health team and that CO Sardana was not qualified to take charge of his mental health treatment by providing an anger management program session. Sergeant Bazgar also stated had CO Sardana gone into the inmate’s cell and suggested an anger management program session she likely would have been assaulted. He stated that he did not want to put her at risk. Sergeant Bazgar also stated that it was not CO Sardana’s job to make this kind of suggestion. Rather it was his responsibility to determine the appropriate interactions for the inmates. In cross-examination, CO Sardana acknowledged that she did not know if this inmate was under the care of a psychiatrist or not.

41CO Green filed another OR on May 12, 2022. In that OR, she detailed that Sergeant Bazgar had engaged in a potential violation of the ISPPM by allowing an inmate to use a Ministry owned computer that was connected to the internet. The computer was logged in under Sergeant Bazgar’s account. CO Green testified that the inmate was streaming music on YouTube. As such, she reported it to Deputy Superintendent Williamson.

42CO Green testified that several days after filing the OR, Sergeant Bazgar confronted her and called her a “fucking rat” and told her that she didn’t need to report the issue to the Deputy Superintendent. CO Green indicated that this was a “tipping point” for her.

43Sergeant Bazgar testified that the inmate in question had special needs. He also testified that the inmate liked listening to rap music. Sergeant Bazgar indicated that he asked another officer (CO Butler) to stay with the inmate. Unfortunately, when CO Green entered the room CO Butler had left the inmate alone. Sergeant Bazgar indicated that CO Butler should not have left this inmate alone. However, he was also critical of CO Green for intervening, for failing to follow the proper chain of command and for stopping the inmate’s time out of cell.

44Sergeant Bazgar denied calling CO Green a “fucking rat”. He testified that CO Green was lying and noted that this allegation was not found in any of the ORs or any other written documents. CO Green acknowledged that she did not mention the “fucking rat” comment in any of the ORs she filed. Nor was in any other written report or email.

45Finally, Sergeant Bazgar testified that he was loud and direct. He said he did not look to argue with the COs but he also acknowledged that if he didn’t think there was a need to engage with the COs he would tell them that he didn’t want to talk with them.

(ii) Black History Month Committee Meetings

46CO Green and CO Sardana testified about their involvement with the Black History Month Committee (the “BHM Committee”). Both CO Green and Sardana testified that they thought this was important work in the context of TSDC. The bulk of the BHM Committee meetings occurred during their lunch break however, on occasion, the meetings took place at a time when they would otherwise be engaged in their seg review duties. CO Green testified that Sergeant Bazgar would become very angry when they were away from seg review on account of their BHM Committee work. CO Green indicated that he would also question their integrity and their priorities.

47In her grievance, filed on April 29, 2022, CO Sardana indicated that Sergeant Bazgar harassed her with respect to the time spent on the BHM Committee. CO Sardana recalled one occasion, on February 22, 2022, where she knew the BHM Committee meeting was going to run late. The General Duty Manager advised her that replacement COs would be sent to seg review so that she and CO Green could finish their work with the BHM Committee. CO Sardana testified that she went to Sergeant Bazgar’s office to let him know but that he was not there. She left a note explaining that their BHM Committee responsibilities would delay their return to seg review later than normal. When the BHM Committee finished up, CO Green and CO Sardana went back to the programme officers office. Sergeant Bazgar called asking where they were, why they were taking so long. When CO Sardana tried to explain that they had been busy with the BHM Committee, Sergeant Bazgar indicated that he was not interested and hung up on her. CO Sardana also described the February 22, 2022 incident in an OR filed March 11, 2022.

48Sergeant Bazgar testified that he supported Black History Month and the work being done by the BHM Committee. His issue was principally that he did not always feel like he knew where the grievors were or when they would be back. He also indicated that he had a different understanding of how work on the BHM Committee was assigned. According to Sergeant Bazgar, work on the BHM Committee should have been assigned days in advance. As such, there was no way that they should have found out at noon that a BHM Committee meeting was going to run late that day.

49Sergeant Bazgar also thought it was highly unlikely that the grievors would be reassigned by the General Duty Manager , or the programmes manager because they were not “spare officers”. The grievors were in the middle of their assigned duties in seg review. In those circumstances, Sergeant Bazgar did not think the GDM would re-assign them. Finally, Sergeant Bazgar also noted that he was never told by the GDM that the grievors had to work late with BHM Committee and that two replacement officers would be sent in their place.

50Sergeant Bazgar denied that he ever received a note from CO Sardana indicating that the grievors would be late coming back from BHM Committee work. He also noted that if she couldn’t find him she could have tried paging him or calling him.

51In cross-examination, CO Sardana acknowledged that she had no way of knowing if Sergeant Bazgar had actually received the note she had left for him. However, she also stated that she believed he had read the note.

(iii) Impact on the Grievors

52According to the union, Sergeant Bazgar’s conduct demeaned the grievors and left them feeling upset and belittled. It has had a lasting on the grievors.

53CO Green testified that the cumulative impact of Sergeant Bazgar’s conduct negatively affected her mental health. She indicated that she had increased levels of anxiety because she was worried she would be yelled at when she reported for work. She also indicated that repeatedly being threatened and insulted by Sergeant Bazgar has had a lasting impact on her self-esteem, left her feeling demoralized and that she continues to think about it regularly.

54CO Green also testified that she felt that there was a gendered aspect to Sergeant Bazgar’s conduct. She felt that she was singled out in a way that was noticeably different from her male colleagues. CO Sardana indicated the same sentiment.

55Both CO Green and CO Sardana acknowledged that neither of them filed a WDHP complaint as a result of Sergeant Bazgar’s conduct. CO Green also acknowledged that during a meeting on April 11, 2022 with Staff Sergeant Paul (and others), she was reminded that she could file a WDHP complaint. Both CO Green and CO Sardana were provided with an Employee Family Assistance Program during that meeting. Finally during the meeting, Staff Sergeant Paul told CO Green that she should contact him if any unwanted or unprofessional behaviour continued.

56CO Sardana testified that in conjunction with CO Green, CO Winful, and the union, they decided filing a grievance was the appropriate course of action.

57In the April 13, 2022 OR, CO Sardana wrote that she felt “belittled and deeply insulted” by Sergeant Bazgar’s conduct on April 11th. She also noted that no one had ever yelled at her like that at work. Once she left Sergeant Bazgar’s office she was reduced to tears and went immediately to washroom to gather herself. She also indicated that it took her time to process what had occurred after she got home that night.

58In cross-examination, CO Sardana indicated she was still fearful of Sergeant Bazgar and that if she saw him in the elevator she would wait for the next one rather than ride with him. Similarly, CO Green testified that she continued to feel threatened by Sergeant Bazgar to this day.

C. Analysis

(a) Credibility

(i) Position of the Union

59The Union argued that the grievors’ evidence should be preferred. According to the Union, the grievors’ evidence was internally consistent and consistent with each others’ evidence. It was also consistent with the surrounding circumstances.

60The Union submitted that both grievors gave evidence that they were routinely (and unfairly) criticized for incidents beyond their control. They also both gave evidence that emphasized how Sergeant Bazgar’s conduct could be threatening and how it made them feel bullied and belittled. As set out above, the grievors described aggressive conduct they were subjected to such as when Sergeant Bazgar would yell at them, shut down conversations when the grievors had questions about their duties, make demeaning comments, tell them to get out of his office, slam the door, point at them aggressively or bang on a table.

61The Union also took the position that the grievors’ evidence did not waiver during cross-examination. They were not defensive and, according to the Union, avoided the tug of self-interest.

62The Union argued that Sergeant Bazgar had no credibility and that his evidence should not be accepted where it conflicted with that of the grievors. According to the Union, Sergeant Bazgar either denied the allegations outright, or minimized his misconduct in order to paint himself in a better light. The Union noted that Sergeant Bazgar denied yelling at the Grievors. Instead he sought to contextualize his behaviour by acknowledging that he was a loud person and suggesting that that might have been the issue. He attributed his loudness, at least in part, to his cultural background.

63The Union also noted that instead of owning his own misconduct, Sergeant Bazgar tried to call into question the grievors’ conduct. Sergeant Bazgar sought to justify his conduct by testifying that the grievors failed to follow his directions, thereby presumably necessitating his responses. For example, he blamed CO Green for going to his superior when she found an inmate unsupervised on a Ministry computer. He also blamed the grievors for being tardy when reporting to his office, and for taking too much time with their BHM Committee responsibilities. Finally, he was very critical of the grievors’ understanding of the purpose of giving time out of cell to the inmates.

64The Union emphasized that Sergeant Bazgar’s evidence was inconsistent with respect to several important points of evidence. He was unclear on the events surrounding the “crash course” he gave to CO Sardana. He also displayed several instances of “selective memory” according to the Union.

65The Union also highlighted that Sergeant Bazgar stated in his evidence that his evidence with respect to the “crash course” should be preferred because he had a witness who would support his version of events and would contradict CO Sardana’s evidence. No such witness was ever called. The Union submitted that in light of the failure to call this witness I should draw a negative inference against Sergeant Bazgar. The Union relied on the decision of Arbitrator Luborsky in Bell Canada and Unifor, Local 6008, 2021 CanLII 122312 (CA LA) in support of its position.

66Finally, the Union noted that throughout the hearing Sergeant Bazgar repeatedly refused to answer questions that could have painted his conduct in a negative light and only did so when directed by the arbitrator. For example, when other WDHP complaints that were made against him were brought up in cross-examination, he refused to answer questions related to that issue until ordered to do so. Similarly, the Union noted that Sergeant Bazgar initially refused to answer questions about calling CO Green a “fucking rat” until also directed to do so.

67Relying on the well-known decision in Faryna v. Chorny, 1951 CanLII 252 (BC CA), as well as the decision of the Grievance Settlement Board in OPSEU (Solomon Smith et al.) and the Ministry of Children, Community and Social Services, 2021 CanLII 37052 (ON GSB) the Union argued that Sergeant Bazgar was evasive, defensive, refused to answer relevant questions, was unable to resist the tug of self-interest. His evidence was inconsistent and, according to the Union, demonstrated a lack of insight into his behaviour. For the foregoing reasons, the Union argued that I should find Sergeant Bazgar not to be credible and should prefer the grievors’ evidence where it conflicted with that of Sergeant Bazgar.

(ii) Position of the Employer

68The Employer argued that where Sergeant Bazgar’s evidence conflicted with that of the grievors, Sergeant Bazgar’s evidence should be preferred. According to the Employer, the grievors were prone to exaggeration and many of their allegations were not borne out by the evidence. The Employer argued that many of the allegations were extremely general and very light on detail.

69The Employer noted that there were several examples where Sergeant Bazgar did not deny the allegations. While denying that he yelled at them, Sergeant Bazgar testified that he was firm, direct and expected them to follow his directions. When this did not happen he told them that he did not want to argue with them.

70The Employer noted CO Sardana included details about the “crash course” when she testified that were not included in the OR. Worse still, there was no mention of CO Green being called a “fucking rat” in any of the ORs or in any other documents. The Employer submitted that in both cases the grievors’ allegations were not credible and should not be given any weight.

71The Employer emphasized that CO Green acknowledged in cross-examination that she discussed the content of the March 11 OR with CO Sardana (and perhaps CO Winful). CO Sardana also agreed that she had conferred with CO Green prior to filing her complaint against Sergeant Bazgar.

72The Employer also noted that CO Green was disciplined for using her cell while working on March 16, 2022 and that this could have been a motivating factor in the complaints that followed.

73In assessing credibility, the Employer relied on the test set out in Faryna (supra) and the decision in University of Toronto and CUPE, Local 3261, (2014) 248 L.A.C. (4th) 181 where Arbitrator Cummings noted that in assessing what is most likely to have occurred she placed greater emphasis “what seems most likely to have happened, supported by reliable evidence.”

(iii) Decision

74Applying the factors considered in Faryna (supra) to the facts of this case, I have concluded that, with one significant exception, the evidence of the grievors should be preferred where it conflicted with the evidence of Sergeant Bazgar. Not only was their evidence consistent (internally and with each other), I am satisfied that they gave their evidence in a balanced and thoughtful manner. There were multiple instances while giving their evidence where they could have embellished their allegations in order to “help” their case but did not do so. For example when describing Sergeant Bazgar’s conduct in his office CO Green was asked whether Sergeant Bazgar ever came close to her, or “got up in her face” to yell at her. CO Green answered that he did not. CO Sardana exercised similar restraint in providing her evidence.

75In contrast, Sergeant Bazgar repeatedly sought to downplay his behaviour and evade personal responsibility. He minimized the conduct at issue by indicating that he was just a loud person, joking at one point that his wife was going deaf because of how loud he was. He argued that his conduct had to be understood in the context of his culture and country of origin. He sought to shift the blame on to the grievors by stating that they repeatedly failed to understand why time out of cell was so important. He also attempted to justify his conduct, at least in part, on the grounds that he had a better understanding of the policy objectives of the ISPPM and that whatever actions he took needed to be understood in the context of his efforts to increase inmates’ time out of cell.

76Sergeant Bazgar’s evidence in response to the allegations contained in CO Sardana’s April 13 OR was also problematic. Sergeant Bazgar testified that he loved the April 13 OR and that he should have written it himself. He also claimed that CO Sardana failed to include a number of allegations in the April 13 OR, and that as such that OR favored his position.

77However, Sergeant Bazgar also did not dispute some of the allegations in the April 13 OR. For example, he agreed that he asked CO Sardana if she knew what “ADM” stood for. He failed to understand why that might have caused her concern.

78It was also pointed out in cross-examination that many of the allegations Sergeant Bazgar claimed in his evidence in chief were not included in the April 13 OR were in fact present. For example, Sergeant Bazgar stated that there was no mention of him pointing at CO Sardana’s face and yelling at her. In fact, CO Sardana did include that allegation (and others). She wrote that Sergeant Bazgar pointed towards her while making a number of loud and angry comments. She also indicated that she felt “belittled and deeply insulted.”

79For all of these reasons, I preferred the evidence of the grievors to that of Sergeant Bazgar when it conflicted, except in one case.

80The one exception, where I preferred Sergeant Bazgar’s evidence, is with respect to CO Green’s allegation that Sergeant Bazgar called her a “fucking rat”. Sergeant Bazgar’s denial is more consistent with the preponderance of probabilities. CO Green filed 3 ORs (February 2, 2022, March 11, 2022, and May 12, 2022) that were entered into evidence. She also sent at least one email setting out some of her concerns regarding Sergeant Bazgar’s conduct.

81The May 12 OR addressed the incident that precipitated the alleged “fucking rat” comment. That incident took place on May 11, 2022. While CO Green indicated that the alleged comment was made after she filed the May 12 OR, she could not provide a compelling explanation for why she failed to file another OR after Sergeant Bazgar allegedly made the comment. This omission is particularly striking when considered in the context of CO Green’s testimony that this alleged statement was the “tipping point” for her with respect to Sergeant Bazgar. In the circumstances, I am satisfied that Sergeant Bazgar did not make this comment.

82Finally, I would note that there was no evidence to support the Employer’s suggestion that CO Green filed her grievance in retaliation for Sergeant Bazgar reporting that she was using her phone.

(b) Do the allegations make out harassment

(i) Position of the Union

83The Union noted that the definition of harassment in Article 3.3 of the collective agreement largely mirrored the definition at section 1 of OHSA and argued that the allegations set out above violate both. Article 3.3 defines workplace harassment as 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.” The definition of workplace harassment in OHSA is effectively the same.

84In both cases, the Union noted that the test for harassment is an objective one. An individual’s subjective intention is irrelevant. According to the Union, the objective evidence established that Sergeant Bazgar harassed and bullied the grievors at the workplace.

85The Union relied on Ontario Public Service Employees Union (Fortin) and Ontario (Ministry of Finance), 2017 CanLII 16719 (ON GSB) where the Board defined “vexatious comment or conduct” as “words or actions without sufficient grounds or bona fide purposes other than to cause annoyance, frustration and/or worry to an employee”. The Board also cautioned that vexatious comments or conduct must be distinguished from words or actions of a supervisor that, while unwelcome by the employee, are nonetheless part of a supervisor’s right to manage the business and direct the workforce.”

86In Ontario Public Service Employees Union (Fortin) and Ontario (Ministry of Community Safety and Correctional Services), 2015 CanLII 60421 (ON GSB) the Board held that typically harassment includes persistent conduct or activities that involve “hostility, importuning, badgering, intimidation or bullying”. The Board noted that harassment in the workplace causes an employee “distress that is inimical to a safe and positive work environment.” Unlike the exercise of normal management rights (for example in giving directions, evaluating or disciplining employees), harassment is carried out in a manner that is abusive, demeaning or hostile and has no legitimate workplace purpose.

87In Ontario Public Service Employees Union (Fortin) and Ontario (Ministry of Finance), the Board defined the term bullying as a form of “abuse of power”. The Board wrote as follows:

In the Board’s opinion, “bullying” is a form of “abuse of power” in the workplace, which includes conduct by a person in a relative position of authority against an employee that a reasonable person would find hostile or offensive causing or having the potential to cause physical or psychological harm or adverse employment consequences to the employee, such as: (a) repeated infliction of verbal invective or maltreatment in the form of derogatory remarks, foul language, and/or insults; (b) verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating, including yelling and physical displays of aggression and/or any form of violence; (c) deliberate sabotage or undermining of an employee’s work performance; (d) whether as part of a pattern of repeated misconduct or even where it occurs on a single occasion that is especially severe.

88The Union argued that the case established a distinction between supervisors who are firm and those that are abusive. In the Union’s view, Sergeant Bazgar’s conduct was a classic example of an abusive supervisor. It relied on the Board’s decision in Ontario Public Service Employees Union (Lefkowitz) and Ontario (Ministry of Community Safety and Correctional Services), 2015 CanLII 14070 (ON GSB) in support of this position.

89The Union argued that Sergeant Bazgar’s conduct satisfied both definitions of bullying and harassment. The Union submitted that the conduct complained of was, objectively, a departure from the realm of “reasonable conduct”. It was repeated. It made the grievors feel belittled and upset and it had no legitimate workplace purpose.

90The Union also argued that the Employer failed to adequately address the complaints of the grievors as they were raised. According to the Union, the only evidence of the Employer responding to the allegations is a brief comment at the end of the OR filed by Sergeant Bazgar where he was reminded of the importance of interacting appropriately with the grievors. The Union argued that the Employer’s response was wholly inadequate and constitutes either a standalone violation of the collective agreement and OHSA, or at a minimum, an aggravating factor when assessing the Employer’s conduct as a whole.

(ii) Position of the Employer

91The Employer argued that the Union did not make out the allegations of bullying or harassment and that the grievances should be dismissed. The Employer argued that many of the allegations were vague and extremely thin. The test for harassment is objective. However, the grievors’ allegations were largely based on their subjective perceptions. As set out in Cara Operations Ltd and Teamsters Chemical, Energy and Allied Workers’ Union, Local 647, 2005 CanLII 94066 (ON LA), 141 L.A.C. (4th) 266, a grievor’s perception of having suffered harassment is not enough, by itself, to support a finding of harassment. Arbitrator Manwaring reached a similar conclusion in Motor Coils Manufacturing Ltd. and Unifor, Local 520, [2015] O.L.A.A. No. 263.

92The Employer also noted that the word harassment has been interpreted as carrying with it serious implications. In short, it is a significant word and concept. It must include a significant departure from reasonable conduct. The term should not be cheapened by overuse. As the Employer noted, not every “employment bruise” or “occasional loss of temper” constitutes harassment. Employers are permitted to manage employees and there is a distinction between permissible aggressive management and abusive conduct. The former is permitted while the latter is obviously not. The Employer relied on Cara Operations Ltd. (supra), Ontario Public Service Employees Union (Grievor) and Ontario, 2015 CanLII 20923 (ON GSB), Motor Coils Manufacturing Ltd. (supra) in support of these positions.

93According to the Employer, Sergeant Bazgar took a “direct and straightforward” approach to managing the grievors. Unfortunately the grievors resisted his directions and ultimately alleged harassment.

94According to the Employer there has been a “sea change” in seg review. There is a newfound and significant emphasis on ensuring inmates are provided with meaningful interactions out of their cell. The Employer argued ensuring that the inmates received meaningful interaction out of their cells was Sergeant Bazgar’s responsibility. Unfortunately, the grievors resisted this sea change and clung to the old mentality that inmates in seg review should not receive “rewards” in the form of time out of their cell. The Employer noted that in its view, the grievors never truly understood this change in approach. They continued to view segregation as a form of punishment to be handed out when inmates misbehave.

95The Employer argued that these competing perspectives lead to many of the incidents between the grievors and Sergeant Bazgar. The grievors simply refused to accept, first, that the priorities of seg review had changed, and second that regardless of their own views, the decision on how seg review was to be run was ultimately Sergeant Bazgar’s to make.

96Sergeant Bazgar did not agree that he yelled at the grievors. Instead, he testified that he is naturally loud, and direct and that this is part of his culture. He said he held staff (and himself) accountable. He testified that he repeatedly tried to explain to the grievors why meaningful interactions with inmates out of their cells was not a reward but a human right and why his goal was to ensure that all inmates received meaningful interactions out of their cells on regular basis in a manner that not only met the requirements of the ISPPM but exceeded them.

97The Employer also argued that many of the allegations did not meet the threshold for constituting harassment or bullying. By way of example, the Employer noted that in her March 7, 2022 email to Ms. Thompson-Rudder, CO Green noted that she considered the words “I expect you in my office at 8 a.m.” to be threatening. The Employer noted that not only was this comment not threatening in any sense (when the grievors’ shifts started at 8am) but that it also seriously impinged the grievors credibility to suggest otherwise.

98The Employer noted that there was a considerable amount of evidence on the question of when the grievors were expected to report to Sergeant Bazgar’s office. The Employer argued that the grievors’ explanation that they needed to read their morning emails before going to Sergeant Bazgar’s office was not convincing. According to the Employer, the evidence established that it was only a five minute walk from the general duty manager’s office to Sergeant Bazgar’s office. In addition, Sergeant Bazgar testified that he would read the morning briefing notes to them so that he could answer any questions they might have.

99The Employer argued that the evidence surrounding the BHM Committee also did not support a finding that Sergeant Bazgar harassed or bullied the grievors. Sergeant Bazgar testified that the grievors should have been formally reassigned when they were working on BHM Committee issues. He also testified that leaving a note when they were going to be absent longer than anticipated was insufficient and that they could have been more proactive in notifying him that they would be absent. When viewed in the context of the pre-existing issues regarding their reporting time, the Employer argued that Sergeant Bazgar’s conduct did not amount to harassment or bullying.

(iii) Decision

100I am satisfied that, taken as a whole, Sergeant Bazgar’s conduct and comments amounted to harassment and bullying and that they violated the collective agreement and the OHSA. Article 3.3 of the collective agreement affirms the parties commitment to a workplace free from workplace harassment and bullying. It defines workplace harassment as 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.” Section 1(1) of OHSA provides a similar definition. So too does the employer’s Respectful Workplace Policy.

101The evidence established that Sergeant Bazgar’s consistent response when things did not go as he wanted was to get angry, yell, bang his fist, and make demeaning, threatening, belittling and insulting comments. Time and again, whether in response to the grievors raising questions about who was receiving time out of their cell or the programming they were being told to offer, Sergeant Bazgar’s reaction was the same. Sergeant Bazgar also responded the same way when the grievors were away from seg review with the BHM Committee or when they arrived at his office later than he wanted after reviewing their morning emails. He also behaved in a similar fashion when he gave CO Sardana her “crash course” on seg review.

102Sergeant Bazgar’s conduct and comments created a toxic work environment. Viewed holistically, the conduct at issue was a marked departure from what could be called “reasonable behaviour”. It did not serve a legitimate workplace purpose. This was not performance management. The conduct at issue cannot be saved by reference to management’s right to direct the workforce or issue directions. This conduct went beyond any such right.

103The evidence established that Sergeant Bazgar regularly yelled at the grievors. He slammed his hand on the desk if he disagreed with their questions or comments. He pointed at them, or at the door, while yelling at them to get out of his office when he wanted a conversation to end. Sergeant Bazgar’s reaction to CO Sardana’s suggestion on April 13, 2022 that an inmate might be benefit from anger management counselling (as opposed to watching TV) was emblematic of his aggressive and threatening behaviour. The evidence established that Sergeant Bazgar yelled at CO Sardana and then told her that he no longer wanted to talk about it with her before walking out of the unit.

104Sergeant Bazgar questioned the integrity and professionalism of the grievors. He insulted them by suggesting they were not committed to the task of giving inmates time out of their cell. He suggested, in front of colleagues and inmates, that they were taking extended breaks and lunches.

105The conduct complained of was repeated on a regular basis. Both CO Green and CO Sardana indicated that the behaviour became so routine (in the sense of occurring regularly) that it became increasingly difficult to report for work and they both tried to avoid interacting with Sergeant Bazgar as much as possible.

106Taken together, these routine interactions satisfy the definition for bullying and harassment. These incidents involved derogatory and insulting comments. The grievors reasonably considered this conduct to be threatening and intimidating.

107Unfortunately, Sergeant Bazgar’s bullying and harassment of the grievors went beyond these day to day examples. His conduct with respect to the work of the grievors on the BHM Committee was equally troubling. Here too he yelled at the grievors, belittled them and the contributions they were making to that committee (and to the TSDC more generally). His conduct showed a complete disregard for the work they were doing with the BHM Committee.

108Sergeant Bazgar’s interactions with the grievors, with respect to when they should arrive at his office in the morning, when viewed as a whole also constituted bullying and harassment. I agree with Counsel for the Employer when he argued that stating in an email “I expect you to be at my office by 8:00 a.m.” does not constitute bullying or harassment and that to find so would be to deprive those terms of the serious connotations attached to them. Unfortunately, that comment was not an isolated incident and the Employer’s argument failed to place that comment in the broader context of Sergeant Bazgar’s repeated aggressive behaviour. For example, Sergeant Bazgar also yelled at the grievors when they were delayed in coming back to seg review because of their BHM Committee duties. In that sense, even if Sergeant Bazgar was correct and the grievors should have reported to his office at 8:00 a.m., his response to their failure to do so, situated in the broader context, was inappropriate and crossed the line over to bullying and harassment.

109Similarly, his conduct towards CO Sardana when “teaching the “crash course” was particularly troubling. The evidence established not only that he yelled at CO Sardana, but that he threw an eraser at the door, got very close to her, pointed at her between the eyes and nose and made demeaning comments questioning her basic knowledge of the seg review system. CO Sardana referred to this incident as the worst workplace interaction of her life.

110Even more disturbing was Sergeant Bazgar’s comment in cross-examination that he loved the April 11 2022 OR (reporting the “crash course”), and that he should have written it. As set out above, the April 11 OR details some of Sergeant Bazgar’s most egregious conduct. His comment that “loved this OR” also displays a complete lack of awareness that his conduct was inappropriate.

111It is also worth noting that even if the explanations Sergeant Bazgar provided are accepted they do not justify the conduct at issue. It may be that his focus on maximizing time out of cell was appropriate under the ISPPM. It may also be that his crash course was helpful in teaching some of the officers about why time out of cell and meaningful interaction with the inmates was so important. As previously stated, it may be that having the COs report at 8:00 a.m. allowed for a significant increase in the number of inmates who would receive time out of cell on a given day. However none of those considerations justified his conduct or the way he communicated with CO Green or CO Sardana. Put simply, the ends did not justify the means.

112Bullying and harassing behaviour can be viewed as occupying various points on a spectrum. For purposes of comparison, the conduct at issue in Ontario Public Service Employees Union (Lefkowitz) is more egregious than the conduct at issue here. In that case, the Operational Manager was so enraged that they kicked and broke a chair. They also allowed a set of circumstances to unfold that put the grievor’s safety at risk. While Sergeant Bazgar’s conduct was serious, and repeated, it did not meet that level of harassment or bullying.

113This conduct is also clearly distinguishable from a manager or supervisor occasionally losing their temper. Sergeant Bazgar repeatedly raised his voice or yelled at the grievors. He regularly pointed at them aggressively and made demeaning comments. As such, the conduct at issue here is distinct from, and more serious than, the conduct at issue in Ontario Public Service Employees Union (Grievor)(supra) and Motor Coils Manufacturing Ltd (supra). In Ontario Public Service Employees Union (Grievor) (supra) the conduct at issue was an isolated incident and the supervisor apologized immediately. In Motor Coils Manufacturing Ltd., the allegation was also an isolated incident and the arbitrator concluded that both the grievor and supervisor engaged in inappropriate conduct. Clearly, in the case before me the allegations span a considerable period of time and involved repeated acts of verbal harassment and bullying.

114Notwithstanding my conclusion that Sergeant Bazgar regularly and routinely harassed and bullied the grievors through his comments and conduct, I am not satisfied that his conduct had a gendered element to it. Other than the grievors’ subjective perception, there was no evidence that could establish this aspect of the grievance.

115I am also not satisfied that the Employer failed to properly respond to the allegations or that its response to the allegations constituted a stand-alone violation of the collective agreement. There was evidence that established that the grievors met with various supervisors, and were told that they had options in terms of how to proceed. The grievors testified that they decided filing a grievance was the most appropriate way forward for them. As such these aspects of the grievance must fail.

116As set out above, an taken as a whole, Sergeant Bazgar’s conduct and comments regularly harassed and bullied the grievors through is comments and conduct. In so doing he violated the collective agreement and the OHSA.

117As such, and for all of the foregoing reasons, the grievances are allowed. As requested, this matter is remitted to the parties for a period of 45 days to address any potential remedy. Should they be unable to reach an agreement, I remain seized to deal with any outstanding remedial issues.