GSB# 2020-0061

UNION# 2020-0376-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Bauer)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Diane Gee

Arbitrator

FOR THE UNION

Rebecca Jones Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Michael MacLellan Crawford Chondon & Partners LLP Counsel

HEARINGS WRITTEN SUBMISSIONS

September 29, October 5, November 2, 2022; September 13, October 27, 2023; October 22, 23, and November 5, 2024; November 7 and December 9, 2025 February 18, March 23 and April 7, 2026

Decision

The Grievance

1This matter concerns a grievance filed by the Ontario Public Service Employees Union (the “Union”) on behalf of Maria Bauer (the “Grievor”) in which it is alleged that the Grievor was bullied and harassed at work by a colleague by the name of Manjeet Manhas (“Manhas”). It is not in dispute that the Grievor filed complaints concerning Manhas’ behaviour; it is alleged that the Liquor Control Board of Ontario (the “Employer” or the “LCBO”) did not investigate the situation properly and promptly, did not adequately address the workplace harassment, and did not provide the Grievor with an adequate response to her complaints. The Grievor asked that either she or Manhas be transferred to another store and, following such request, the Grievor was transferred. The transfer was subsequently made permanent. It is alleged that the Employer’s failure to provide her with a safe and healthy workplace led to the Grievor being punished by being permanently transferred out of the store.

The People Involved

2During the relevant period, the Grievor was a customer service representative (CSR) working at store 585. She was designated as a Beer Ambassador. The Grievor had been actively involved in the Union for many years as a steward as well as serving on the local executive and various committees. The Grievor participated in health and safety training and was a health and safety representative. The Grievor testified in this matter.

3Manhas was also a CSR at store 585. She was designated as the Product Consultant. Product Consultant is a specialized position that requires specific expertise in wines, spirits, and beers, often requiring professional certifications like WSET. Training is required initially and on an ongoing basis. A Product Consultant is responsible for the Vintages section of the store which exists only in large volume stores. Manhas did not testify.

4Olivia Cole (“Cole”) was a CSR at store 585. She was involved in an incident that occurred on June 24, 2019, detailed below. Cole testified.

5Carmen Selariu (“Selariu”) was the Store Manager at store 585 at the time of the incidents in issue. Joe DeCaro (“DeCaro”) was the Assistant Store Manager at store 585 at the time of the incident in October 2018. DeCaro testified. Selariu did not.

6Bev Taylor (“Taylor”) was District Manager for the district that included store 585 at the time of the first two incidents: October 2018 and January 2019. Mike Thornington (“Thornington”) took over from Taylor and was the District Manager from the June 2019 incident forward. Both Taylor and Thornington testified.

7Dianne Morrison (“Morrison”) was a Human Resources Advisor with the Employer who provided human resources guidance to Taylor and Thornington. Morrison did not testify.

The Employer’s Obligations

8The Employer’s obligations with respect to workplace harassment are set out in the Ontario Health and Safety Act (“OHSA”), the Human Rights Code (“Code”), and the collective agreement. The Employer also has policies that apply to harassment in the workplace.

(i) The Hierarchy of Obligations

9There is a hierarchy to these obligations. Employers are required to abide by the requirements of the OHSA and the Code regardless of the language of the collective agreement or their policies. Neither a collective agreement nor Employer created policies can override the mandatory minimum requirements of the OHSA and Code. A failure to abide by these mandatory minimum requirements results in a violation of the applicable statute.

10The collective agreement between the Employer and the Union can stipulate the Employer is required to comply with the terms of the OHSA and the Code. In such a case, a failure to abide by the requirements of the OHSA and the Code will also be a violation of the collective agreement.

11The collective agreement can require the Employer to comply with obligations more onerous than those required by the OHSA and Code. The Employer is required to comply with these more onerous obligations. A failure to do so is a violation of the collective agreement.

12Lastly, the Employer must have policies in respect of harassment and discrimination in the workplace. To the extent the OHSA dictates what must be in these policies they must, at a minimum, comply with the statutory requirements. Beyond that, policies that are not incorporated into the collective agreement cannot be “violated” by the Employer. However, a failure to comply with its own policies may be relevant to whether the Employer acted reasonably in the circumstances.

a. The OHSA

13Section 1(1) of the OHSA defines “workplace harassment” as “engaging in a course of vexatious comment or conduct against a worker in a workplace … that is known or ought reasonably to be known to be unwelcome.” Section 1(4) provides a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.

14Section 25(1)(h) requires an employer to “take every precaution reasonable in the circumstances for the protection of a worker.”

15Part III.0.1 of the OHSA is entitled “Violence and Harassment.” Section 32.0.1 requires the Employer to prepare a policy with respect to workplace harassment. Section 32.0.6 requires the Employer to develop a written program to implement the policy. The program must, amongst other things; include procedures for workers to report harassment; set out how incidents or complaints of harassment will be investigated; and set out how a worker who has allegedly experienced harassment as well as the alleged harasser will be informed of the results of the investigation and of any corrective action taken or to be taken.

16In order to protect a worker from workplace harassment, section 32.0.7 of the OHSA requires the Employer, amongst other things, to: conduct an investigation into incidents and complaints of workplace harassment “that is appropriate in the circumstances” and inform the worker who allegedly experienced harassment and the alleged harasser in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result.

b. The Code

17Section 5(2) of the Code provides that every employee has a right to freedom from harassment in the workplace without discrimination on the basis of, amongst other grounds, disability. Section 10 of the Code defines harassment as “engaging in a course of vexatious comment or conduct that is known or reasonably to be known to be unwelcome.”

c. The Collective Agreement

18Article 2 of the collective agreement is entitled “Harassment and Discrimination.” Article 2(b) provides the parties agree to uphold the Code. The collective agreement thus confirms the Employer’s statutory obligations under the Code set out above.

19Article 2.2 is entitled “Rights during Investigation” and provides that where an employee files a formal complaint under the Respectful Workplace Policy, the Employer recognizes the importance of concluding the investigation expeditiously and that it is the goal of the Employer to fully investigate and make a determination within 45 days of the date the formal complaint was filed. The article goes on to provide “A written summary of the findings shall be provided to the complainant and respondent.”

20Article 33 provides that the Employer shall continue to make every reasonable provision for the health and safety of its employees under the terms of the OHSA including with respect to workplace harassment.

21A Letter of Agreement entitled Re: Mental Health (the “LOA”) provides that the Employer will take every precaution reasonable in the circumstances to prevent bullying, including psychological bullying and/or psychological harassment that constitutes workplace harassment under the Code or the OHSA.

d. Policies

22The Employer has a policy entitled Respectful Workplace Policy (the “Policy”). Section 5 of the Policy is entitled “Investigation and Resolution Process.” It stipulates that the Designate Manager and Human Resources will determine whether it is appropriate to deal with the complaint by an informal resolution process or conduct an investigation. Section C of the policy provides, where an investigation is conducted, a complainant or respondent that is an employee of the LCBO will be informed in writing of the results of the investigation and any corrective action that has been taken or that will be taken as a result of the investigation.

23The Employer also has an Administration Manual containing a section entitled “Human Rights/Workplace Harassment Prevention: Internal Resolution Process” (the “Manual”). In the Manual, the informal complaint process and formal complaint processes are described. Under the formal complaint process it is stated:

The Division Head or designate and Manager, Human Resource or designate, will meet with the Complainant and Respondent separately, and advise each of the results of the investigation and provide a written summary of the findings and of any corrective action that will be taken.

[emphasis in the original]

24The Administrative Manual also has a section “Human Rights/Workplace Harassment Prevention: Discrimination and Harassment Policy.” At page 4 of 7 it states;

This policy does not prohibit reasonable action or conduct by a management or supervisory employee which relates to the management and direction of workers or the workplace, including performance reviews, work direction, work assignments, scheduling, workplace inspections, counseling and disciplinary action, etc.

This policy does not prohibit differences of opinion, disagreements and isolated acts of rudeness between employees.

Credibility

25Credibility is a critical factor in this case.

26The Union called three witnesses: the Grievor, DeCaro and Cole. The Employer called Taylor and Thornington.

27The Grievor testified at length about the incidents in issue, her transfer out of store 585, and how she was affected. DeCaro provided testimony regarding those portions of an incident he witnessed on October 20 and 22, 2018. Cole was a participant in, and witness to, most of an incident that occurred in June 2019.

28The Grievor was not a credible witness. She fell short on almost every standard used to evaluate witness credibility. The Grievor was melodramatic and exaggerated shamelessly . She lied about facts that were tangential to the key events in issue. She overplayed the conduct of Manhas, Selariu, and Thornington, and underplayed her own conduct. She referred to people as “liars” and said they were “lying” without foundation. She testified that Manhas called her a “racist” and repeated the word “racist” numerous times in her testimony only to later, in cross examination, acknowledge that Manhas had never used the word “racist.” She referred to being “locked in” an office with Thornington when such was never the case. She refused to agree with obvious propositions until such time as it assisted her case to do so. She omitted highly relevant details of events. She gave improbable evidence in an effort to downplay her conduct. In at least one instance she could not see the difference between her perception of what a letter said and what was printed on the page. She was so fixated on Manhas as the problem that she was unable to see the role she played. As discussed below in my findings of fact, I do not believe the Grievor’s evidence where it is not otherwise corroborated.

29DeCaro was a very credible witness. He held a bargaining unit position; he and the Grievor were co-workers. He left the store shortly after the events in question. At the time he testified he was no longer working with the Grievor. He has no interest in the outcome of the arbitration and no motive to deceive. He provided his evidence in a candid and straightforward manner. I prefer DeCaro’s evidence over that given by the Grievor.

30Cole and the Grievor are very close. Cole described the Grievor as assuming a motherly role towards her. The Grievor described Cole as “like a daughter.” At the conclusion of Cole’s evidence, they said “I love you” to one another. Cole and the Grievor have a close personal connection. Cole testified as to an incident that occurred in June 2019. Cole, when testifying about her own role in the event was forthright and made admissions against her own interest. She clearly recognized the role she had played and was remorseful. However, when testifying about the role of the Grievor played in the event, Cole was very hesitant and gave short answers. When asked to describe the conduct of Manhas that day, Cole’s demeanour changed; she was quite willing to testify in a fulsome manner as to Manhas being angry and yelling at the Grievor. Cole’s relationship with the Grievor, and the marked difference in the quality of her answers given in response to questions concerning the conduct of the Grievor versus Manhas, renders the credibility of her testimony concerning the conduct of the Grievor and Manhas questionable.

31Manhas and Selariu did not testify. While the failure to call a witness can result in an adverse inference being drawn, given the serious issues I have with respect to the Grievor’s credibility and that of Cole, I decline to do so.

32The Employer called two witnesses, Taylor and Thornington. Neither Taylor nor Thornington were witnesses to any of the events. They testified as to what they did in response to the Grievor’s complaints. Each of Taylor and Thornington had some difficulties with recalling events. Their evidence was hampered by the absence of contemporaneous notes that one would expect to have been taken. They gave their evidence in a candid and straightforward manner and made admissions against interest. Thus, I find their evidence to be reliable.

Findings of Fact

(i) Context

33There is a dispute between the parties as to the context within which the alleged harassment occurred. The Employer argues that what occurred between the Grievor and Manhas was not harassment. Rather, the Employer argues, it was the result of a bitter personality conflict between the two women. The Union disputes that the Grievor harboured any animosity towards Manhas and argues that bad feelings flowed in one direction only; from Manhas to the Grievor.

34Throughout most of the Grievor’s testimony she rejected suggestions put to her that, prior to the first event in October 2018, she and Manhas had a mutual dislike for one another. The Grievor insisted that she had nothing against Manhas and did not understand why Manhas was so antagonistic towards her. In cross-examination, after considerable questioning, the Grievor conceded that she and Manhas were not getting along and in fact were not speaking to one another. She maintained, however, that it was Manhas who was to blame, and she was not speaking to Manhas to avoid her hostility.

35Woven throughout the Grievor’s testimony were negative remarks about Manhas that refute the Grievor’s claim that she was not harbouring hostility towards her. The Grievor testified that Manhas was not a team player and never helped customers; she always called another CSR to assist the customer unless it was Vintages and this annoyed the Grievor. She testified that Manhas did not like to go on cash because she thought it was beneath her. She testified that Manhas felt she was superior. She testified that Manhas thinks everything in Vintages belongs to her. The Grievor testified that Manhas “played the race card” and that, saying a manager was a racist, was her “fall back when something goes wrong.” The Grievor testified that she does not tolerate people who are disrespectful to her; she speaks up.

36Further, credible evidence to the effect that there was open and mutual dislike between the Grievor and Manhas prior to October 2018 was given by DeCaro, Cole and Taylor.

37DeCaro started working with the Grievor and Manhas four to five months prior to October 2018. He testified that the Grievor and Manhas did not get along and that, prior to the October 2018 incident, there was friction between them. He agreed they were like oil and water. The two of them would make comments to him about one another that caused him to conclude that they did not like one another. DeCaro testified that the dislike was mutual.

38Cole testified that the Grievor and Manhas did not get along. She testified that having the two of them in the store together caused tension for the rest of the staff.

39Taylor testified that the Grievor and Manhas could not work together. Taylor testified that the Grievor was generally calmer than Manhas but described the Grievor as an “instigator” and “passive aggressive.” According to Taylor, the Grievor either did or did not get along with a co-worker. Manhas was described by Taylor as emotional and reactive. Taylor described Manhas as louder than the Grievor and quicker to anger. Taylor testified that the two approached things from opposite standpoints and, with the least provocation, would go after the other.

40I find that, prior to October 2018, the Grievor and Manhas had developed a mutual dislike for one another such that there was friction between them and their personalities were such that they were prone, in the words of Taylor, to “go after the other.”

(ii) October 2018

41The first incident occurred on October 20 and 22, 2018. The Grievor and DeCaro gave evidence in connection with this incident.

42The Grievor testified that, on October 20, 2018, while the Grievor was doing inventory in the back room, Manhas paged her to the beer fridge to help a customer.

43The Grievor noticed Manhas was already on the sales floor and, as she passed Manhas to go help the customer, she asked Manhas why she called the Grievor and why she was not helping the customer herself. The Grievor testified that Manhas told her to “shut up.” The Grievor testified that she then told Manhas that she did not call Manhas when people need help in Vintages and Manhas started aggressively yelling and again telling her to “shut up.” The Grievor testified that Mahas was swearing and shaking her finger vigorously.

44The Grievor testified that she passed Manhas again in the backroom after helping the customer and said to Manhas in a calm voice: “I really do not appreciate you yelling at me like that and please do not yell at me again.” At this stage, the Grievor testified, Manhas went into a rage and started yelling, screaming and swearing at the Grievor. The Grievor’s evidence is that Manhas used vulgarities and profanities including “the F word” several times. The Grievor testified that she repeatedly and calmly asked Manhas to stop yelling at her. She testified that DeCaro came out of the back room and told Manhas to stop yelling.

45DeCaro testified that he was within earshot when the Grievor told Manhas she could have helped the customer herself. DeCaro testified Manhas got her back up and raised her voice. DeCaro testified that they then separated and the Grievor went to help the customer. Later, when DeCaro was in the lunchroom, he heard both the Grievor and Manhas yelling at one another. DeCaro could not recall the exact words that were said but he remembers both the Grievor and Manhas yelling. DeCaro testified he tried to calm them down and separate them.

46DeCaro was asked if there had been any swearing between the Grievor and Manhas. He testified that he could not recall the words that were exchanged but, it was not common for LCBO employees to swear at one another and, if it had happened, it would have stuck in his mind. He has no recollection of any swearing.

47For the reasons set out in the foregoing section on credibility, I do not consider the Grievor’s testimony to be reliable. I prefer the testimony of DeCaro and find as follows. The Grievor, upon being paged by Manhas to help the beer customer was annoyed. Manhas, after being questioned by the Grievor as to why she did not help the customer herself and being told by the Grievor that she did not call Manhas when people need help in Vintages, raised her voice and yelled at the Grievor. After the Grievor helped the customer, both the Grievor and Manhas were yelling at one another in the back room until DeCaro came out and told them both to calm down and separate. I further find, as supported by DeCaro’s evidence, Manhas did not swear at the Grievor. The Employer found in its investigation, based on Manhas’ own admission, that Manhas told the Grievor to “shut up,” and I find that she did so.

48The Grievor sent an email to Selariu the next day in which she described the incident and stated that she would like the email to be considered her formal complaint to management. I refer herein to this complaint as the October 2018 complaint. She indicated in her email she was willing to mediate and that she would like to feel re-assured that this type of conduct was dealt with appropriately and would not happen again.

49Selariu brought the complaint to the attention of Taylor who, after consulting with Human Resources for guidance, told Selariu to have a meeting with the Grievor and Manhas to try and resolve the issue.

50On October 22, 2018, Selariu convened a meeting. At the meeting were Selariu, Manhas, the Grievor and DeCaro. DeCaro testified that the purpose of the meeting was to try and resolve the situation. According to DeCaro’s testimony, Selariu’s message to both Manhas and the Grievor at this meeting was to be respectful to one another at work. The Grievor stated in her testimony that she regarded this meeting as the mediation she had expressed willingness to attend in her October 2018 complaint.

51The Grievor testified Manhas was aggressive when she was speaking at the meeting. She described Manhas as being “in a rage, screaming and yelling” and that she “stormed out of the meeting.” The Grievor found Manhas’ words to be aggressive and disrespectful and considered them to be an attempt to intimidate her. She testified Manhas called her a racist repeating the word and the accusation several times. As indicated above, the Grievor later changed her testimony to say that Manhas did not call her a racist; she said she was going to file a human rights complaint against the Grievor. The Grievor testified that Selariu and DeCaro’s jaws dropped due to Manhas’ rage.

52DeCaro testified that the meeting got heated with both Manhas and the Grievor yelling and pointing fingers. He testified both the Grievor and Manhas spoke with raised voices. He testified that Manhas may have initiated the yelling and was confrontational. DeCaro testified that Manhas and the Grievor agreed as to what happened on October 20, 2018; the argument was about who was at fault. DeCaro had no recollection of Manhas telling the Grievor she was being racist or calling her a racist. DeCaro testified he was shocked by the fact that the Grievor and Manhas could not resolve the problem between them. He testified that either the Grievor or Manhas got up and left the meeting without it being properly concluded.

53DeCaro further testified that he and Selariu spoke after the meeting. He and Selariu were shocked by what had occurred. He thought that Manhas and the Grievor should have been able to sit down and come to a resolution. He was surprised that did not happen. It was his feeling that it was not going to work with Manhas and the Grievor: “some people just can’t work together.” DeCaro believes that Selariu handled the meeting properly and does not know what more she could have done. When asked who was to blame for the incident, he replied that he did not consider either the Grievor or Manhas to be more responsible than the other; he believed the problem to be mutual. DeCaro testified that, from his perspective, it was a dispute between two co-workers not an attack by one on the other.

54Again, I prefer the evidence of DeCaro over that of the Grievor. I find that Manhas was confrontational at the meeting and initiated the yelling. Thereafter, both the Grievor and Manhas were yelling and pointing fingers at one another.

55Following the meeting, the Grievor sent Selariu an email, copied to Taylor, stating that, at the meeting, Manhas admitted she had yelled at the Grievor and had had told the Grievor to “shut up.” The email states that Manhas showed her anger and aggression towards the Grievor several times during the meeting, said many co-workers in the store did not like the Grievor and that she was going to file a human rights complaint accusing the Grievor of harassing her. The Grievor quoted from the employer’s Harassment Policy and stated that she was aware that it did not “prohibit differences of opinion, disagreements, or isolated acts of rudeness between employees.” The Grievor went on to say that she was hoping that this incident with Manhas was an isolated act of rudeness towards her and would not be repeated. She then writes: “I'm upset the way the meeting went as my concern is her attitude will carry on.”

56The Grievor concludes the email as follows:

I know that you are more than capable of handling the situation and leave it in your hands. You advised me that you would be following up with Manjeet and I would appreciate an email confirming that you did follow up with her once it has been done.

57On Tuesday, October 23, 2018, Manhas sent Taylor an email that included a statement that she had been told by fellow employees that the Grievor had come in on October 21, 2018 to view video footage (“DVR footage”) of Manhas working on October 20, 2018, and she then left the camera focussed on Manhas. Manhas states “no one should be coming in on their day off to watch others in the camera especially if you’re not the store manager.” The email states that Manhas wants action taken.

58Taylor then met separately with Manhas and the Grievor to address the incidents of October 20 and 22, 2018 as well as the issue raised by Manhas of the Grievor coming into view the DVR footage. Taylor testified that, based on her meeting with the Grievor and Manhas, she concluded they were oil and water and could not get along.

59Taylor testified that, during her conversation with the Grievor about the DVR footage, the Grievor admitted to coming into the store to view the DVR footage and said she did so to “see if Manjeet even attempted to help the customer.” Taylor testified that the Grievor acknowledged that it was inappropriate for her to have done so. On October 23, 2018, Taylor wrote an email to Morrison in which she states: “Maria said she looked at the video to see if Manjeet even attempted to help the customer.”

60Taylor testified that Selariu gave Manhas a non-disciplinary letter of counsel dated October 26, 2018. Taylor testified that initially, Manhas was to be given a disciplinary warning, however, because Manhas seemed to understand her part in what had occurred and had been provoked by the Grievor, it was reduced to a non-disciplinary letter of counsel.

61The Employer was unable to locate the final version of the letter given to Manhas. The letter put into evidence was a draft of the final letter bearing track changes in red. It reads in part as follows:

Dear Manjeet:

This letter is written confirmation of our counseling session on October 22, 2018, in which we discussed my concerns with your inappropriate conduct and language during a verbal exchange with Maria Bauer on Saturday, October 20, 2018 and in our meeting on Monday October 22, 2018.

Specifically, during our counseling session I advised you that it is both mine and the LCBO’s expectations that you act accordingly with the first line of the LCBO’s Harassment policy (AM-0408-01) which is as follows:

“The LCBO expects all employees to treat each other with respect and dignity”.

You stated that you understood and acknowledged my concerns with your non-compliance and your inappropriate conduct with Maria Bauer. The LCBO will not tolerate such disrespectful conduct when communicating with your co-workers, such as: telling a co-worker to “Shut up”. You were also advised during our meeting that should you ever not understand something that is being communicated to you, you will seek guidance from myself for further explanation. It is your responsibility to make sure you fully understand and comply with all the LCBO’s roll-outs and communication.

It is my expectation that you will reach compliance on all future interactions with the other employees. I reiterate that it is your responsibility to ensure that you have a full understanding of your job and comply with, all LCBO’s policies and procedures.

Upon conclusion, it is my expectation that there will be an immediate improvement in being fully compliant and respectful with all future interactions your co-workers. I trust you understand my expectations and should you require further clarification on this matter I am available at any time to discuss this with you.

Yours truly,

Carmen Selariu, Manager, Store 585

cc. Store file

62On October 26, 2018, Selariu sent the Grievor an e-mail stating “Thank you for your emails. As per our discussion, I have followed up on this matter”.

63Taylor testified that the Grievor was given a non-disciplinary letter of counsel concerning her viewing of the DVR footage. Taylor has retired from the LCBO and testified she did not have access to her files. The LCBO could not locate the letter, and it was not put into evidence.

64The Grievor testified that she did not recall if she viewed the DVR footage, if she spoke to Taylor about viewing the DVR footage and admitted doing so, or receiving a non-disciplinary letter of counsel for viewing the DVR footage.

65Having regard to Taylor’s contemporaneous email to Human Resources stating that she had spoken to the Grievor that morning and the Grievor had acknowledged she had looked at the DVR footage, I am satisfied that Taylor and the Grievor spoke about the DVR footage and the Grievor admitted to viewing same. I am further satisfied that the Grievor viewing the DVR footage for the purpose of seeing if Manhas had assisted the customer before paging the Grievor was inappropriate according to the practices in place at the LCBO and the Grievor was so aware.

66Concerning the investigation that was conducted, it was the evidence of Taylor that she was responsible for managing the investigation. She testified that the investigation into the October 2018 incident was, pursuant to the Employer’s policies, a formal investigation with a structured process, which would include speaking to witnesses, reviewing documents, follow ups and closure letters. Taylor agreed that, in the formal process, it is necessary to provide a response to the complainant in writing. Taylor testified that she would have met with the Grievor and informed her orally that the investigation was closed. It is conceded by the Employer that the Grievor was not informed in writing of the results of the investigation or of any corrective action taken.

67The Grievor testified that she did not receive any follow up regarding the Employer’s investigation into the October 2018 incident beyond Selariu’s October 26,2018 email stating she had “followed up” on the matter. The Grievor testified that she never had any meeting with Taylor about this incident, nor did she receive any written response of the results of the investigation.

68Taylor had no recollection of when the meeting took place where she orally informed the Grievor the investigation was closed and she had no notes of such a meeting. Taylor also testified that it would be unusual for her not to have paperwork with respect to such a meeting. The Employer’s inability to produce any document in support of its assertion that Taylor met with the Grievor and informed her that the investigation is problematic. Given the statutory obligations that exist in the case of harassment complaints, one would expect a note to be made of such an important communication.

69The credibility of testimony can be gauged by asking whether the evidence is probable considering the surrounding circumstances. The Grievor, is a seasoned union representative, health and safety representative and trainer in health and safety, yet she never raised the October 2018 complaint with the Employer again until eight months later in June 2019. In June 2019, when the Grievor referred to the October 2018 complaint, it was not to ask about the status of the investigation, but rather to inform Thornington, who had taken over from Taylor, that the October 2018 incident had occurred. Given the Grievor did not raise her October 2018 complaint following Selariu’s October 26, 2018 email for over eight months, and even then did not do so to enquire as to the status of the investigation, I find it probable that the Grievor was informed by Taylor that the matter was closed.

(iii) January 2019

70On January 22, 2019, a representative from a beer company was in the store to conduct a beer tasting. The Grievor, Manhas, and two other employees participated. The representative brought a four pack of beer into the store that was not offered for sale at the LCBO. Unbeknownst to the other employees, the Grievor spoke to the representative and arranged to purchase the four pack of beer. The Grievor went out to her car and paid for the beer electronically. As such, she did not have a hard copy of the receipt. The beer was placed in the office and, at the end of the day, and the Grievor took it home with her.

71The Code of Business Conduct (“CBC”) contains a section that states accepting gifts from any person that has dealings with the LCBO is, generally, not permitted.

72Manhas informed Selariu that the Grievor had taken home beer brought in by the sales representative. After considerable questioning in cross-examination, and very reluctantly, the Grievor agreed that, if someone had the perception that a co-worker had been given product by a sales representative, and took it without paying for it, it would be legitimate for them to report it to the Employer.

73On February 15, 2019, the Grievor received a letter advising her that she was being investigated for inappropriate conduct during the in-store product tasting session on January 22, 2019. The letter stated that there would be a determination as to whether disciplinary action would be taken. The Grievor testified she was horrified when she got the letter as the letter accused her of “stealing.” When it was pointed out to the Grievor in cross-examination that the letter does not accuse her of stealing the Grievor remained adamant that it does. The Grievor’s evidence on this point demonstrates that she has difficulty differentiating between her own perceptions and facts. Not only was there no mention of theft in the letter, the beer was not sold at the LCBO and hence could not have been stolen from the Employer.

74Taylor met with the Grievor on February 28 and again in March 2019. She got statements from the Grievor’s coworkers who were present at the time the sales representative was in the store. She also talked to the sales representative. In her testimony, Taylor stated that the missing link was that there was no receipt taped to the four pack of beer as was done when an employee purchased LCBO product. Taylor testified that, during her meetings with the Grievor, the Grievor demonstrated that she had in fact purchased the beer and paid for it electronically on her phone.

75Taylor found the Grievor to be truthful and genuine in all her responses. Taylor found that the Grievor did in fact pay for the beer and that the Grievor genuinely did not think there was anything wrong with her having purchased the beer from the beer representative. Taylor further found the Grievor to display clear remorse for any misunderstanding that might have occurred.

76While it was cleared up that the Grievor did not accept a gift from the representative, the Grievor’s conduct was viewed as inappropriate by the Employer as it was concerned about the optics of employees purchasing products not sold by the LCBO from sales representatives on working time. In the result, Taylor gave the Grievor a non-disciplinary letter of counsel that instructed the Grievor not to engage in making these types of purchases going forward.

77The Grievor did not file a complaint about this incident, and it was not raised with the Employer as constituting harassment or part of a course of harassment until the filing of the instant grievance in February 2020, over a year later.

(iv) June 25, 2019

78The next incident occurred on June 24, 2019. The Grievor and Cole testified in connection with this incident. Manhas did not testify and Bartallo, who was present for a very brief portion of the incident, did not testify.

79As set out above in the Credibility section, Cole and the Grievor are very close. The Grievor referred to Cole during her testimony as “like a daughter.” Cole described the Grievor as “having a motherly role towards me.” At the conclusion of Cole’s testimony, she and the Grievor said “I love you” to one another. In her evidence, Cole gave fulsome responses when describing Manhas’ role in the incident and short non-descriptive ones when discussing the Grievor’s role. She demonstrated a tendency to underplay the Grievor’s role and overplay the role of Manhas. I find her evidence concerning the conduct of the Grievor and the conduct of Manhas to be unreliable.

80As set out above, the Grievor was not a credible witness. In respect of this particular incident, there is further reason to find her evidence unreliable. As described below, Cole was significantly involved in this incident yet, in the description of this event given by the Grievor in her complaint, the role Cole played is not mentioned at all. When asked in cross-examination why Cole’s participation was left out of her complaint, the Grievor responded that it was Manhas who was at fault not Cole. The Grievor demonstrated she would shape her recounting of events to coincide with her version of who was at fault rather than give a full and honest recounting.

81The evidence of the Grievor and Cole is that, on June 24, 2019, Cole was the only CSR on cash when the Grievor left the store for her break at about 4:45 p.m. The Grievor instructed Cole to press the buzzer in the event she needed assistance. The only other employees in the store were the Assistant Manager, Chris Bartallo, who could not do cash, and Manhas. Cole testified that she had a long line up and pressed the buzzer for assistance but, by the time Manhas arrived, there were only two customers in line. Manhas told Cole that she should not buzz unless she has four or more customers in line. Manhas was busy at the time putting together a large order for a Vintages customer.

82Cole and the Grievor testified that, when the Grievor got back from her break, Cole told the Grievor what Manhas had said. At 6:00 p.m., at the end of her shift, Manhas was in the office counting her tray. The Grievor was the shift leader, and it was her role to ring Manhas out and put her tray in the safe.

83Manhas would normally have been off cash 10 to 15 minutes before 6:00 to balance her tray. On this day, because the store was busy, she was unable to do that. The incident happened at a few minutes before 6:00. Manhas was in a hurry as she had to go and pick up her daughter.

84The Grievor went into the office and told Manhas that she should not have told Cole not to buzz unless she had more than four customers in the line. When it was put to the Grievor that she was needlessly inserting herself into an issue that was between Manhas and Cole, the Grievor steadfastly rejected the contention. The Grievor testified that, as a health and safety representative, she had a responsibility to tell Manhas she was not to tell Cole not to buzz unless she had more than four customers in line as there could be safety reasons why Cole would need to buzz. The Grievor insisted that what Manhas said to Cole raised a health and safety issue and was adamant that it was her responsibility as a health and safety representative to address the issue with Manhas.

85I find the Grievor’s evidence that she spoke to Manhas because a health and safety concern existed and she had a responsibility as the health and safety representative to address it to be improbable.

86At the time of the incident, Manhas was concluding her shift, precluding the possibility that her comments to Cole could raise a health and safety issue that day. No imminent safety hazard existed that required immediate intervention. The evidence demonstrates that the discussion regarding the buzzer pertained strictly to customer volume and queue management. A reasonable person would not interpret the instruction to "not buzz unless there are more than four customers" as a directive not to buzz in the face of a safety issue. Consequently, the safety concern cited by the Grievor was purely theoretical. It is not the function of a health and safety representative to admonish co-workers regarding their work practices. Had the Grievor held a bona fide belief that a non-imminent safety issue existed the appropriate recourse was to report the matter to the store manager for resolution.

87I find that the Grievor’s testimony that she approached Manhas because a safety issue existed to be a fabrication designed to refute the suggestion being made to her in cross-examination that, by inserting herself into an issue between Cole and Manhas, she bore some responsibility for what followed. I find she went into the office to confront and admonish Manhas about her telling Cole not to buzz and not for any safety related reason.

88Turning back to the June 24, 2019 incident, the Grievor testified that, after she told Manhas that she should not have told Cole not to buzz unless she had more than four customers in the line, Manhas got very angry, swung open the office door and yelled in an aggressive tone across the front of the store to Cole, who was on cash at the time: “Did I tell you not to buzz?” Cole, yelled back: “yes you told me not to buzz unless I had more than four customers in line.” Manhas then went back into the office and shut the door.

89The Grievor testified Manhas became extremely aggressive, yelling and screaming profanities and vulgarities at her including “fucking bitch.”

90Cole testified that she could hear Manhas yelling and she lost her temper. Cole made three trips in quick succession from her cash desk to the office opening the door and yelling into the office at Manhas each time. Cole testified that she yelled at Manhas that she was tired of her behaviour and may have called her a "fucking bitch.”

91The Grievor testified that, after the last occasion on which Cole opened the door and yelled at Manhas, Manhas then screamed at her for several minutes calling her a “fucking bitch” or “efin bitch.” The Grievor testified that Manhas said that the Grievor did not always answer the buzzer to which the Grievor responded that she had a hearing impairment. The Grievor testified that Manhas then accused her of faking her hearing impairment. The Grievor testified that Manhas was speaking in a raised and angry tone and the Grievor asked her to stop raising her voice and told her to stop yelling several times.

92Cole testified that she heard Manhas say to the Grievor: “I will sue you” and saying: “fuck you.” Cole testified she heard the Grievor say: “stop yelling at me.” Cole testified that the Grievor’s tone was not aggressive and the Grievor was not yelling like either she or Mahas were yelling. Cole testified the Grievor raised her voice.

93The Grievor testified that, when Manhas would not stop yelling, she propped the office door open and stood in the doorway in the hopes that Manhas would settle down. The Grievor testified that, at one point, Bartallo came to the office and Manhas swore and “dropped the F bomb a couple of times” while speaking to him and the Grievor.

94The Grievor testified that she found Manhas’ conduct upsetting and her comment about the Grievor’s hearing impairment offensive.

95The Grievor sent an email to Selariu, copied to Thornington June 25, 2019. The email states:

Please see the attched [sic] complaint that I am filing regarding Manjeet. I have copied Mike and I would like Mike to know that I have filed a previous complaint (October 2018) regarding Manjeet’s treatment towards me and can provide a copy of it if required. This type of behavious [sic] is not accpetable [sic] at the workplace and I cannot be silent about it.

I look forward to your reply and resolution

96The complaint attached to the email, dated June 24, 2019, mentions that the Grievor told Manhas not to tell Cole not to buzz and Manhas going to the door and yelling across to Cole: “did I tell you not to buzz” and Cole yelling back “yes you told me not to buzz unless there were more than four customers in line.” According to the complaint Cole’s only involvement after this point was as follows:

Olivia then came to the office and again told Manjeet that was what she told her and Manjeet just got loud and angry at her! She told Olivia she only had two people when she buzzed and shouldn’t have buzzed for her!! Again in a loud and angry tone. Olivia told her that was because she took long to come up.

97The complaint omits any mention of Cole’s second and third trips to the office or that Cole was yelling at Manhas each time. The Grievor hid any mention of facts would certainly be relevant to the events that immediately followed. The Grievor did not mention, as Cole herself admitted to in her evidence, that Cole was yelling at Manhas.

98The complaint also contains a paragraph in which the Grievor states that Manhas said to her concerning her hearing disability: “You just fake it and pretend like you do not hear it. You can hear everything, you just like to fake it.”

99The complaint states that Manhas swore at the Grievor, dropping the “F bomb” a couple of times while talking to Chris and then looked at me and said: “Your just a fucken bitch,” “fuck you” and “I am going to sue you.”

100Upon receipt of the June 24, 2019 complaint, Thornington viewed the DVR from the store and was able to see Cole’s three trips from her register to the office in an agitated state. The DVR footage was entered into evidence. The DVR does not have audio. Thornington testified he felt the Grievor’s omission of Cole’s role in the interaction undermined the integrity of the complaint. When the Grievor was testifying she was asked why she did not set out Cole’s role in her complaint. The Grievor responded that she did not leave out any details and even talking about Cole was a “deflection” from Manhas’ conduct. This is a further example of the Grievor not recognizing that, rather than shaping her evidence to best support her case, she was required to give a full and honest recounting of events.

101On June 29, 2019, Manhas and Cole both received investigation letters requesting that they provide written statements. The statements provided as well as the notes referred to below are hearsay; however, they serve to demonstrate the scope of the investigation done by the Employer and the basis on which the Employer came to the conclusions that it did.

102In the statement provided by Manhas she gives a description of what occurred from her perspective including that the Grievor yelled and used profanities. Manhas admits to saying: “I will sue you…” and calling the Grievor a “bitch.” In Cole’s statement she admits to losing her temper and yelling at Manhas.

103On July 10, 2019, Mr. Thornington got an email from the Grievor saying that she had sent her complaint two weeks ago and wanted to know when she could expect a reply. That same day Mr. Thornington responded that he was in the process of investigating.

104On July 25, 2019, Mr. Thornington held separate meetings with Manhas and Cole who both had union representatives present. Also at the meeting was Morrison from human resources.

105The notes of the July 25, 2019 meeting with Manhas indicate Manhas advised Thornington that, quite close to the end of her shift, she had a customer come into the store requesting assistance with an approximately $5000.00 to $7000.00 order. She was helping the customer and was running back and forth to get product from the locked high-end wine cage. When she was almost finished, Bartallo walked the customer to the cash desk, and she continued running back and forth to finish the order. They took the order to Cole’s cash desk, and she stayed to oversee the transaction and make sure the items were charged at the correct price. During this transaction the Grievor was in the office for at least 20 minutes doing nothing. A lineup formed and Manhas told Cole to ring the buzzer for another cashier to come to assist.

106At this point the Grievor came out of the office and, according to Manhas made a very hostile and aggressive grunting sound towards her. According to the notes, Manhas informed Thornington that she went to the office with her tray and started to put her chits in envelopes. At that time the Grievor started yelling at her saying that she had not signed her chits and that the Grievor was the manager. The statement goes on to say the Grievor screamed at her “who are you, the stupid bitch telling Olivia not to buzz!” and “vintage customers aren't my customers, it's not my problem, you should fucking take care of your own customers, why are you giving them to Olivia!”

107The notes indicate that Manhas went on to say that she went to the door of the office and said to Olivia “I did not tell you not to buzz.” According to the notes Manhas told Thornington that she then sat down in the office when Cole came to the office door and yelled “what the fuck” at her. Manhas stated that she did not reply. According to the notes, Manhas said that the Grievor was also yelling at her. The notes indicate Manhas stated that Cole was coming and going yelling at her each time and at the same time the Grievor was yelling at her. The notes indicate that Manhas said to Thornington that the Grievor told her she had got Manhas in trouble before and she would do it again. Manhas explained that is why she said: “I will sue you. You invaded my privacy in the past and you've told Beverly [Taylor], your best friend not to investigate.” According to the notes, Manhas also said to the Grievor: “That investigation is still going on, you think it's over? You were watching me on video on your day off and continually watch and follow all my movements in the store.”

108The notes indicate that Manhas said that she had to count her tray three times because she had a hard time with both Cole and the Grievor yelling at her. The notes indicate that Manhas said that she paged Bartallo and he came to the office. She told him to ring her off because the Grievor would not do so. The Grievor then said aggressively: “He is not allowed to touch your tray or the safe because I am the manager, not him.” Manhas stated that it was now 10 minutes past her shift and she just wanted to leave. She was scared of both Cole and the Grievor’s aggressive behavior. Maria stood in the doorway blocking her exit. She was scared and thought they were going to assault her with their aggressive demeanour. She got so frustrated and determined to leave she called the Grievor a “bitch” without thinking because she just wanted to leave and go home.

109Manhas apologized and said that the Grievor had started the argument. She said the Grievor influences Cole. Manhas apologized and acknowledged that she had to control her emotions and talk to the manager or the Union if things were not going well.

110Thornington also interviewed Bartallo as part of the investigation because he was present for a portion of the incident. Thornington testified that Bartallo agreed that Manhas called the Grievor a bitch but said he did not hear Manhas call the Grievor a “fucking bitch”.

111Thornington did not interview the Grievor as part of the investigation.

112On August 8, 2019, both Manhas and Cole were given non-disciplinary letters of counsel. The store manager received coaching.

113The portion of the letter to Manhas setting out the conduct for which the letter was given, states:

I would like to take this opportunity to bring to light your attitude and how the negative manner in which you communicated, which was aggressive and emotional is completely inappropriate and unacceptable at the LCBO. At no time is it acceptable to use profanity such as calling Maria “a bitch” or engaging in aggressive, argumentative conduct when you are communicating with your co-workers and especially when there are customers present in the store.

114The portion of the letter to Cole setting out the conduct for which the letter was given, states:

I would like to take this opportunity to bring to light your attitude and how the negative manner in which you communicated which was aggressive and emotional is completely inappropriate and unacceptable at the LCBO.

115Manhas was not found by the Employer to have said the Grievor was faking a hearing impairment or to have called the Grievor a fucking bitch as is alleged by the Grievor.

116On August 29, 2019, Thornington met with the Grievor at store 585 in the office. As set out below, an incident occurred shortly thereafter during which the Grievor alleges Selariu spoke to her in an angry manner. The Grievor’s theory is that Selariu got angry with her because Selariu saw her meet with Thornington and then, after Thornington spoke to her and suggested that Bartallo and not the Grievor should have been in charge on the day of the June 2019 incident, Selariu concluded that the Grievor had got her in trouble. It is at this meeting that the Grievor referred, numerous times, to being “locked in” the office by Thornington and, at the end of the meeting to being “let out.” Her testimony that she was “locked in” the office was untrue. I can only assume that, by telling this lie, the Grievor was attempting to leave the impression that Thornington forced her to meet with him in the store in view of Selariu, and that she was an unwilling participant, to cast the blame for Selariu being angry with her at the feet of Thornington. This is an example of the Grievor’s propensity to exaggerate and twist the evidence to support her theory of what transpired.

117As set out above, I have serious reservations as to the reliability of the evidence of the Grievor and the evidence of Cole as it pertains to the conduct of the Grievor and Manhas. However, in this instance, admissions were made by Cole and Manhas during the investigation conducted by the Employer, which the Employer accepted, resulting in the non-disciplinary letters of counsel. Based on the evidence before me which consists of the evidence of Cole and the Grievor which I do not find credible, I would find the Union has not established harassment occurred. However, I find it appropriate to accept the findings made by the Employer based on the admissions made by Manhas and Cole during the investigation. Having regard to the contents of such letters, I find that Manhas communicated in an aggressive and emotional manner which was inappropriate and unacceptable at the LCBO. Manhas called the Grievor a bitch and engaged in aggressive and argumentative conduct when communicating with her co-workers. I find that Cole communicated in a negative manner that was aggressive and emotional and completely inappropriate and unacceptable at the LCBO.

118This however leaves me with no reliable testimony as to the Grievor’s role in this incident. I thus rely on what is most probable in the circumstances. It is probable the Grievor, who was very close to Cole, was agitated because of Cole having been told by Manhas not to buzz. The issue was none of the Grievor’s business and certainly did not have to be dealt with at that time. Manhas was at the end of her shift and needed to leave. She too was agitated. The Grievor went into the office and admonished Manhas which caused Manhas to get her back up. Manhas went to the door and challenged Cole and Cole then lost her temper and did three trips in quick succession from her register to the office yelling at Manhas each time. It is probable that tensions escalated and, as occurred in October 2018, that Manhas and the Grievor then engaged in a yelling match bringing up past grievances and complaints they had with one another. The Grievor could have left the office and allowed Manhas to finish counting her tray but did not. At some point Manhas called the Grievor a bitch.

119Thornington testified that he believes the incident was properly dealt with. There were no witnesses except for Bartallo who did not hear Manhas say “fuck” as alleged by the Grievor. Manhas admitted to calling the Grievor a bitch. Manhas was given a non-disciplinary letter of counsel. The Employer considered it a heated argument. The fact that the Grievor had not been open and honest in her complaint impacted the Employer’s assessment of what had occurred as they had reason to doubt the integrity of the complaint. The Employer, based on its view of the DVR footage, concluded that Cole ramped up the level of hostility and added fuel to the fire. The Employer felt it to be probable that the Grievor had said or done something to provoke Manhas which the Grievor was not admitting.

120Thornington also testified that he and Morrison met with the Grievor and told her that the situation had been dealt with. The only meeting between Thornington, Morrison and the Grievor occurred on September 19, 2019. The Grievor denies that she was ever told anything about her June 2019 complaint being dealt with. As indicated above, the Grievor sent Thornington an email on July 10, 2019, saying that she had sent her complaint in two weeks earlier and wanted to know when she could expect a reply. There is no further inquiry from the Grievor asking about the status of her June 2019 complaint until December 2019 at the earliest. As such, I find it probable that the Grievor was told “the situation had been dealt with” or words to that effect by Thornington at the September 19, 2019 meeting.

(v) August 2019

121I turn to events that transpired in late August and early September 2019.

122On August 26, 2019, the Grievor took an empty wooden product box from the backroom and placed it under her register intending to take it home with her that day. The Grievor and DeCaro testified that taking empty product boxes was commonly done by the employees at store 585 and the practice was just to let the shift lead, Assistant Manager or Store Manager know that you were taking the empty box as you were leaving the store. The Grievor forgot to take the box home on August 26, 2019. The next day when the Grievor got to work she found that the box had been placed inside the Vintages cage in the backroom and had been filled with product that was not the product that came with the box. The Grievor removed the product that was inside of the box and, on August 28, 2019, took the box home with her. The Grievor testified she believes she told Selariu on August 29, 2019 that she took the box home.

123As set out above, Thornington came into the store to meet with the Grievor on August 29th, 2019.

124The Grievor’s testimony is that, at around 5:30 p.m. on August 29, 2019, after her meeting with Thornington, she was approached by Selariu and Manhas. Manhas said that the Grievor had taken the original product out of the product box that she had taken home and said she had looked at the cameras. The Grievor told Selariu that she did not take the original product out of the wooden box and that the box she took home had been outside the cage for at least a week before she took it. The Grievor explained the box had been empty when she first found it and, when it was removed from under her register and placed in the cage in the back room, someone had been filled the box with product that was not original to the box.

125The Grievor testified she had a further conversation with Selariu on August 30, 2019, about the box. During this conversation the Grievor again told Selariu the box had been empty for over a week and, after it was removed from her register and placed in the back room, it had been refilled with product that was not original to the box. According to the Grievor, Selariu replied that it could not have been the same box that Manhas was talking about as Manhas said that the box in question had product in it. The Grievor felt demeaned by the Selariu’s comments as she had taken Manhas’ side in the issue. The Grievor also testified that Selariu made snide remarks to her about her knee injury and her need to be accommodated at work. The Grievor testified she told Manhas such comments were unwelcome, and she stopped making them.

126The Grievor testified that she believed Manhas was setting her up to get in trouble. She testified that she asked the Employer to check the DVR footage to confirm that she had not taken original product out of the wooden box. The Grievor was upset about the fact that the Employer never did check the DVR.

127Shortly thereafter several signs were posted in the back room that said:

Do not take any empty wooden boxes. They are for customers not employees. Any questions please ask Manjeet. Thank you.

128On September 4, 2019, the Grievor spoke to Selariu. She describes this conversation in a September 10, 2019 email to Thornington as follows:

During the conversation with Carmen [Selariu] on September 4, she was very dismissive and turned her back on me several times. She was angry and hostile in most of her comments. I told her that the signs are directed at me and she said in a sarcastic way "it doesnt have your name on it!" She stated, there was nothing wrong with the signs and that i find everything offensive. This is when she also mentioned me telling her the week prior that I found her comments about my accomodations offensive. She said "whats wrong with asking you to do cash? " I told her that asking to do cash wasnt the problem, the way she said it, repeatedly and hostile and when she said it was inapproriate.( i can give you more details when we talk) her timing and tone was horrible!

She said that if I wanted a box why couldnt I just talk to Manjeet? There was aslo discussion about what to do if Manjeet wasnt there, do we tell customers no? She said, you have to ask Manjeet. Carmen then said that you cant take original bottles out of boxes. She went on saying that to allow Manjeet to run her section. I told Carmen that employees are customers too and that the sign was wrong. If she meant to say "do not take original bottles out of boxes" then that is what the sign should say. I told her that was not what happened and again explained what happened days prior to the box getting refilled. Carmen again got very dismissive stating it is not her job to deal with our issues. She said that all i ever do is cause trouble. I told her if she didnt want me there then why not ask for me to be moved? She said "I didnt say that" I cannot remember all she said but she made me feel very uncomfortable and dissimisve and like anything that was wrong was my fault. I was very upset and needed to leave due to the hostility towards me from Carmen.

129That same day, September 4, 2019, the Grievor sent an email to Thornington saying she had had to leave the store that day due to severe stress. The email begins with “Last week, I was falsely accused of doing something I did not do” and states: “These accusations were completely set up by Manjeet and Carmen has allowed this to go on.” The email also contains complaints about the signage put up in the store. The Grievor states the signage is excessive and not necessary “making a specitcle [sic] by placing signs every few inches, right after accusing me of emptying original product from the boxes made me feel that the signs were directed at me.” The email does not refer to Selariu making snide remarks about the Grievor’s knee injury or need for accommodation.

130In the email the Grievor makes the following request:

I am asking you to either transfer myself or Manjeet sooner rather than later as I cannot be in this kind of bullying and hostile environment towards me any longer and do not want to loose [sic] time at work.

131Thornington, who was on vacation on September 4, 2019, advised the Grievor the same day that she was transferred to store 580 effective the following day on loan. Thornington testified it was obvious to him that the Grievor and Manhas could not work together. Thornington testified the move to 580 was a quick temporary move with the intention to further move her to store 747. Thornington testified that he had discussed a move to store 747 with the Grievor before this incident happened as it was a new store opening and she had expressed an interest in being involved in the set up and opening of a new store.

132By way of return email, the Grievor raised the issue of the store being outside of her local union. The Grievor could not act as a union steward if assigned permanently to a store outside of the geographic area of her local union; she could continue to act if assigned to a store outside of her local union on a temporary basis. Thornington had not been previously aware of this and did not know the geographic territory of her local union.

133On September 5, 2019, the Grievor emailed Thornington to advise she had not put all details in her September 4, 2019 email, had more information to add and would appreciate the opportunity to provide details.

134On September 10, 2019, the Grievor sent Thornington an email with further details of what had occurred between August 26, 2019 and her request to be transferred out of the store on September 4, 2019. The Grievor states in her email that she considered it to be unfair that she had to be moved out of the store but understood it to be temporary. She states that she considered it unfair especially since she was the one who was being bullied in the workplace. She refers to the Employer of having a policy that states: “speak up” and comments that, when she did speak up, she got punished. In this email, the Grievor refers to the “first incident in October 2018” and unwelcome remarks made by Manhas about her hearing disability and by Selariu about her knee injury. She states that these things should not be tolerated at work yet, for it to stop, she had to be removed from the workplace. She questions why Manhas had not been removed after her several attacks on the Grievor.

135Thornington spoke to Selariu and, based on that conversation, concluded that the Grievor had not been harassed. Selariu denied being hostile toward the Grievor. Thornington noted that the Grievor did not get into any trouble over taking the box. She was just told that if she wanted a box, to ask. Thornington was of the view that, while the Grievor took the signs personally, they were posted for all staff. He and Morrison looked over the Grievor’s emails and considered what the Grievor had raised. They concluded no harassment had occurred.

136On September 19, 2019, the Grievor, Thornington, and Morrison met at the District 18 office. According to Thornington’ s testimony the discussion that took place was as is set out in an email he sent to Ann Ledwidgen, OPSEU Staff Representative, on December 12, 2019:

We met with Maria Bauer on September 19, 2019 to discuss and review her complaints outlined her September 4, 2019 e-mail to me; (regarding concerns at Store 585 and her request to be removed from the store). In Maria's September 10, 2019 e-mail to me she stated that she could not work with Manjeet (her coworker) and I immediately made arrangements to move Maria to another store location to separate them. At the start of the September 19, 2019 meeting, Maria was advised that we were not conducting a formal investigation and there [would] be no investigation report. We did however go over her concerns and we all agreed that Maria and Manjeet could not work together. I further advised Maria that any concerns that she presented regarding her store manager, I would address and coach, the manager, on some of the concerns that had been brought forward (the store manager was also transferred out of store 585).

I also advised Maria that I would temporarily transfer her to 580 and during our September 19 meeting I discussed her going to store 747 as I felt it would be a fresh start for her and a great opportunity for her to experience the preparation and the opening of a new store. Maria advised that she had concerns with changing locals. And I advised that initially I would agree to make her transfers temporary on loan so she could attend the elections that she advised were being held on November 15 - 17, and that I would advise her of my decision on her permanent store location once the elections were over.

Further to the above, Maria is still working within Region 3 and it would appear that her main concerns with the store location have more to do with her being transferred out of her union local. She further advised that she feels it is taking her away from her responsibilities as a trainer; which [she] has advised disadvantages her financially as she is compensated for some these duties by the union. I advised Maria that she could run in the local that she is in now and she could also look into whether or not she could do training in that local as well.

137The Grievor agrees that there was discussion at the September 19, 2019 meeting concerning her not being able to work with Manhas but she testified that the meeting did not address her “complaints” against Manhas. She testified that she repeatedly expressed the desire to return to store 585 and recalls discussing transferring to Store 747 temporarily to assist with the opening but made it clear that she did not want to be there permanently. Further, the Grievor testified that she understood that she would be back to store 585 after she assisted Store 747 with its opening. The Grievor testified that she was never told that the Employer was not conducting a formal investigation into her September 4, 2019 complaint.

138The facts show that the Grievor did not raise the status of her September 4, 2019 complaint with the Employer again until December 11, 2019, almost three months later and she raised it only when she was told her transfer was permanent. This stands in stark contrast to the Grievor’s conduct in connection with her June 2019 complaint where she followed up with the Employer two weeks after filing her complaint to ask for a status report. Article 2.2(b) of the collective agreement provides it is the goal of the Employer to fully investigate and make a determination within 45 days of the filing of the complaint. The credibility of testimony can be gauged by asking whether the evidence is probable considering the surrounding circumstances. In this case, the surrounding circumstances include the fact that the Grievor, a seasoned union representative, health and safety representative and trainer in health and safety, never raised the September 4, 2019 complaint – or any complaint whatsoever – with the Employer again until December 11, 2019. Had the Grievor believed the complaint to be outstanding she would have raised it with the Employer much earlier. The fact that she did not do so makes it probable that she was advised on September 19, 2019 that an investigation would not be undertaken and I so find.

139On Sept 20, 2019 the Grievor sent Thornington an email in which she states that she is a delegate for her local to attend a union meeting taking place November 15 to 17. The Grievor states that, if she is put into a store outside of her local, she will not be able to attend. The Grievor states that she really in truly cannot go to a store outside her local at this time and that she needs to stay in a store north of Highway 7. On September 26, 2019 the Grievor sent Thornington an email indicating that she had not yet heard back from him and would like to know if he had made a decision. Given this email follows the September 20, 2019 email in which the Grievor is informing Thornington of her need to stay in a store north of Highway 7, it is a fair inference that the “decision” the Grievor is asking about is one concerning which store she will be transferred to.

140On October 9, 2019, the Grievor had a telephone call with Mr. Thornington. Following this phone conversation, she emailed Thornington that she had initially expressed a desire to be part of store 747 to gain experience. She said she would be good with either option they had discussed on the phone either the “temp thing” or Stouffville.”

141On November 8, 2019, Thornington emailed the Grievor and advised her: “As discussed you are currently on loan to store 747 Boxgrove helping with the store set up. You are on loan from store 585 Markham.” The Grievor testified that she understood that her home store would stay store 585 and she would be transferred back to store 585 once the store set up at store 747 was complete.

142On December 10, 2019 the Grievor was advised that her transfer to store 747 would be permanent.

143On December 11, 2019 at 8:14 a.m. the Grievor sent an email to Thornington. In this email, the Grievor refers to the problems she encountered at store 585 and states that because management did not address those issues, she was caused major stress at work. She refers to the fact that, on September 4, 2019, she asked to be removed from the hostile situation. The Grievor comments that she did not expect the filing of a complaint would result in her being transferred permanently out of the store. The Grievor further states that the temporary transfer to store 580 from September 4 until early November was for the employer to decide what to do regarding the volatile situation she was being subjected to. The email contains several references to the Grievor having been transferred out of the area of her union local. The Grievor notes that a permanent transfer to store 747 would take her out of her elected union position and would cause her mental and financial hardship. The Grievor states that the transfer is causing her a major loss in the skills she has worked on for the past 12 years, and the financial impact is disturbing. The email concludes that she does not want to stay at store 747 and would like a reply as soon as possible for an alternative and she will not in any way consider this a permanent transfer.

144The same day at 5:07 p.m., in a one sentence email, Thornington replied: “Thank you for your email. I transferred you to store 747 Boxgrove for operational reasons.”

145Thornington testified that he needed to staff the new store 747 with full time employees. Given the incompatibility between the Grievor and Manhas, and the Grievor insisting that she could no longer work with Manhas, Thornington saw this as an opportunity for a fresh start for the Grievor. Thornington viewed the Grievor as the perfect fit for store 747. She had expressed a desire to be part of a new store opening; she would still be a Beer Ambassador at store 747 and could fulfill health and safety duties. It was also within Markham. Asked if he considered moving Manhas instead of the Grievor, Thornington testified that he did not. Manhas was a Product Consultant and, in order to move her out of store 585, he would have to find another Product Consultant to move into the store. Store 747 did not need a Product Consultant as it did not have Vintages. If he moved Manhas into a store that had Vintages, he would have to bump the existing Product Consultant out of the store potentially setting off a chain of transfers.

146At 6:45 p.m. the Grievor responded to Thornington stating that she had still not received a response concerning her complaints from store 585 and that the last she had heard from Thornington “there was an investigation” and she had yet to receive a report from that investigation. The email goes on to indicate that there are several employees who could be transferred to store 747 and questions why there is suddenly a need for a full time employee at store 747 and why the transfer has become permanent.

147The next day, December 12, 2019, the Grievor emailed Rafik Louli, Vice President, Retail Operations Division. The email begins: “The only thing I asked for was a store on the north side of highway 7.” Following a paragraph about another matter the Grievor then concludes:

I was called a F**en B by a co-worker three separate occasions in my workplace and bsuiness [sic] was being affected by her behavior against me. I asked to be moved to avoid troubles, and all I asked for was a store on the north side of highway 7.

Please, if there is anything you can do to assist me.

148Also, on December 12, 2019, Ann Ledwidge, OPSEU Staff Representative, emailed Thornington indicating that the Grievor has advised her that there was an investigation done about her complaints around bullying/harassment/discrimination at her previous store and asks for the results of that investigation. The email goes on to indicate that transferring the Grievor permanently out of region 3 would have a negative impact in many ways for her. The email asks that the permanent move be retracted and that the Grievor remain in region 3.

149Within a few hours, Thornington replied to Ledwidge with the email that is set out at paragraph 136 above.

150On December 17, 2019 the Grievor emailed Thornington indicating that she has waited since her complaint in June for a reply to having been verbally attacked by a co-worker for a third time. She states that she does not understand why her co-worker has immunity and she is being bounced around and now displaced for over three months. The email indicates that these circumstances are not fair and the Grievor would appreciate a reply as to when she will be moved back into her local union. The email concludes that she does not expect to be moved during the holidays and appreciates why this cannot be done but would like to know that her permanent transfer to store 747 has been retracted until a place is found for her north of Highway 7. That same day Thorington emailed the Grievor stating that he has decided that she would be on loan from store 585 to store 747 and that he would like to meet with her in January to discuss transferring her to a store within the geographic area of her union local 376.

151On January 3, 2020, a meeting took place with the Grievor, Thornington and Ledwidge in attendance. Thornington testified that at the commencement of the meeting the Grievor testified that she had not received a letter concluding her complaint against Manhas. Thornington advised that he and Morrison had reviewed all of Maria's complaints with her in their September 2019 meeting. The balance of the meeting was dedicated to issues concerning store transfers and disputing sick time.

152Thornington testified that, at the meeting, the Grievor expressed her desire to be transferred back to store 585 and Thornington attempted to discuss an alternative store that would keep the Grievor in her union local area as requested and also meet the LCBO's operational needs. The Grievor was advised at the meeting that Thornington was considering transferring her to store 404 or store 390 both of which were within her local union area.

153The Grievor refused store 390 on the basis that she had 24 grievances filed against the Store Manager at store 390. When she was advised the Store Manager would be moving to another store, she advised she would not work with the Assistant Store Manager either as he had ganged up with Manhas against her; she would rather work with Manhas. Store 404 was another option within the Grievor’s local union area. The Grievor rejected store 404 due to the fact she had a restraining order against someone who either worked or shopped in that store.

154The Grievor was advised that she would not be moved back to store 585 and the Grievor was not willing to discuss working at a store other than store 585. The meeting ended without a resolution as to the transfer.

155On January 20, 2020 the Grievor emailed Thornington. In the email she states:

I also asked you about when I will be transferred back to store 585 and you still do not have an answer for me. This has been going on since September 4 making it almost 6 months since the complaint I sent you. I also am quite concerned that I did not receive a written reply from you regarding my complaint. Manjeet's harassment caused this situation I did nothing wrong I will not accept going back to store 390.

156On January 23, 2020 the Grievor sent Thornington an email in which she indicates that they had spoken that day about sick time to be paid back and states: “I would also like to note that you again did not discuss my transfer or harassment complaint and I am still waiting for a reply for both of these.”

157By way of email dated January 28, 2020 the Grievor was advised by Thornington, that, after taking into consideration a number of factors that are set out in the email, Thornington had decided the Grievor would be transferred to store 390. Store 390 was in the geographic area of the Grievor’s union local and was the store closest to her home. Thornington testified that returning her to store 585 was not an option as she and Manhas could not get along and the Grievor had said she could not work with her. The email ends that he would be attending at the Grievor’s store to confirm the transfer directly with her within the next week. The transfer would be effective March 1, 2020. Thornington sent a follow up email the same day summarizing what was discussed at the January 3, 2020 meeting.

158Maria responded by email “I will not go to 390.”

159On February 4, 2020, the Grievor emailed Thornington: “Under extreme duress, I have no other choice but to accept the permanent transfer to store 747 Boxgrove.” The email concludes: “My harassment complaints have still not be[en] dealt with.”

160On February 7, 2020, the instant grievance was filed.

161The Grievor ran for election in the union local where store 747 is located and was successful. She was elected Vice-President of the Local. Sometime thereafter she applied for a position as Assistant Manager in a store in Cobourg and was successful.

Submissions of the Parties

162The parties made their closing submissions in writing. What follows is a very brief summary of the sections of each party’s submissions that address whether the incidents constitute bullying or harassment, the adequacy of the Employer’s response, and remedy. I have not reproduced the parties’ submissions as to findings that ought to be made in connection with disputed facts. Where there is a fact in dispute, I have dealt with it above in the sections entitled Credibility and Findings of Fact.

163I have also not included submissions on legal issues in respect of which the parties are ad idem.

(i) The Union’s Submissions

164The Union submits that the Employer’s failure to properly and adequately investigate the Grievor’s harassment complaints resulted in a failure to provide the Grievor with a harassment free workplace and led to the Grievor being punished by being permanently transferred out of store 585.

a. Submissions on Whether the Grievor was Bullied or Harassed

165The Union relies on the following caselaw:

• Ontario Public Service Employees Union (Fortin) v Ontario, 2017 CanLII 16719 (ON GSB) at paragraph 163 in support of its submission that arbitrators have defined harassment and bullying as encompassing a diversity of conduct from subtle, passive aggressive “cold-shouldering,” to blatant aggressive and derogatory comments or actions.

• Children’s Hospital of Eastern Ontario v Ontario Public Service Employees’ Union, 2015 CanLII 58045 (ON LA) at para 109, in support of the submission that harassment can be subtle and passive aggressive.

• Toronto Transit Commission v. Amalgamated Transit Union, 2004 CanLII 55086 (ON LA), in which abusive conduct is defined as conduct that includes “physical or mental maltreatment and the improper use of power and it also includes a departure from reasonable conduct.” Harassment is defined as “words, gestures and actions which tend to annoy, harm, abuse, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands or other unpleasantness” and further a “single act, which has a harmful effect, may also constitute harassment.”

• Ontario Public Service Employees Union (Fortin) v Ontario, 2017 CanLII 16719 (ON GSB) (Luborsky) for the following discussion of the meaning of bullying:

… “bullying” describes a spectrum of conduct related to the improper use of power that one person has over another, “to coerce or intimidate weaker persons” (per The New Shorter Oxford Dictionary, supra). In the Board’s opinion, “bullying” is a form of an “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.

• Children’s Hospital of Eastern Ontario v Ontario Public Service Employees’ Union, 2015 CanLII 58045 (ON LA), in which Arbitrator Parmar recognized that harassment can be subtle and passive aggressive.

• Regional Municipality of Niagara v. Canadian Union of Public Employees, Local 1287, 2024 CanLII 6040 (ON LA) in which it is stated that intimidating, demeaning and belittling comments amount to harassment.

• Ontario Public Service Employees Union (Green- Espinal at al) v. Ontario Solicitor General, 2024 CanLII 129654 (ON GSB) in which the Grievors were two correctional officers who alleged that a Sergeant raised his voice and yelled at them, pointed at them aggressively, and made demeaning comments towards them. Arbitrator Beatty found his conduct to be “a marked departure from what could be called reasonable behaviour.”

166The Union then turns to the evidence, makes submissions as to the evidence to be preferred where there is a conflict, and summarizes the conduct that the Grievor was subjected to in the workplace. The Union submits that the conduct towards the Grievor meets the definition of harassment.

167The Union submits that certain incidents meet the definition of harassment on their own. Specifically, Manhas yelling at the Grievor, her comments “shut up” and “bitch,” and comments about the Grievor faking her disability, are all conduct that ought reasonably to be known to be unwelcome and conduct that is a marked departure from what is appropriate and reasonable behavior in the workplace. Further, the Union submits that when viewed as a whole, Manhas’ treatment towards the Grievor constitutes bullying and harassment. Accordingly, the Union submits that each event amounts to harassment and the events in when considered in combination amount to pattern of harassment.

b. The Employer’s Response to the Complaints

168Turning to the second issue, being the adequacy of the Employer’s response to the complaints, the Union argues that the obligations set out in the OHSA and collective agreement to take every reasonable precaution for the protection of workers requires the Employer to undertake an appropriate, adequate and prompt investigation process. Workplace investigations serve to determine what happened and prevent a recurrence in the future. Inadequate investigations do not achieve this purpose and may create a situation where the employer has failed to take every reasonable precaution on a go forward basis.

169With respect to the requirement set out in section 32.0.7 of the OHSA that an investigation be “appropriate in the circumstances” the Union argues that the guidance provided by the Ministry of Labour in its 2016 Code of Practice to Address Workplace Harassment under OHSA should be adopted. This document states that an “appropriate” workplace harassment investigation must satisfy a number of requirements including the investigator collecting and reviewing any relevant documents, the investigator taking notes and statements during interviews, and the investigator preparing a written report setting out findings of fact and coming to the conclusion about whether workplace harassment was found or not. The Union points to the case of Toronto Metropolitan University v. Toronto Metropolitan Faculty Association, 2023 CanLII 22957 (ON LA) in which Arbitrator McIntyre held that the employer breached both the collective agreement and the OHSA by failing to advise the Grievor of the results of a workplace investigation in a timely manner and by failing to investigate certain allegations of harassment altogether.

170In respect of the Employer’s obligations under the Code, the Union relies on Laskowska v. Marineland Inc., 2025 HRTO 30 which sets out the following criteria as to the reasonableness of an employer's response to complaints of discrimination and harassment under the Code:

(1) Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;

(2) Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act; and

(3) Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?

171The Union submits that arbitrators have emphasized that the applicable standard under the Code is one of reasonableness. The Union advances the case of Toronto Community Housing Corporation (Security Group) v Ontario Public Service Employees Union, 2015 CanLII 13548 (ON LA), in which Arbitrator Nairn explained the employer’s duty as follows:

The standard is one of reasonableness, not perfection, nor what may seem reasonable in hindsight…Broadly speaking, in assessing reasonableness one looks to the employer’s awareness of the issues, how it handles a complaint, and the nature of any resolution. The employer is not strictly liable for any harassment that occurs in the workplace. Having knowledge of harassment in the workplace, an employer is liable for a failure to respond appropriately.

See also: Renfrew County and District Health Unit v Ontario Public Service Employees Union, Local 487, 2014 CanLII 12448 (ON LA) (Palmer).

172Concerning the October 2018 and June 2019 incidents the Union submits that the Grievor was not informed either in writing or orally of the outcome of the investigations. In respect of the August 2019 incident there's no dispute that no investigation was conducted into this complaint.

173The Union submits that the evidence reveals that the Grievor was subjected to nearly a year of harassing and bullying behaviour by Manhas. The Grievor attempted to address this conduct by raising her complaints with her immediate Manager and the District Managers. The Union submits that, to the extent the Employer investigated, the investigation was inadequate and failed to meet the Employer’s obligations under its own workplace harassment policies, the collective agreement, OHSA, and the Code.

174In particular, the Union submits the Employer failed to investigate all the allegations raised by the Grievor and did not address the pattern of conduct towards the Grievor. The Employer minimized the severity of the allegations raised and viewed each complaint as stand-alone incidents or disagreements between two employees. The Employer further failed to inform the Grievor of the results of the investigations or any corrective action taken, in violation of their own policies, the collective agreement and OHSA. The evidence in the record demonstrates that the Grievor was repeatedly following up with the Employer regarding the outcome of her complaints and that the Employer’s lack of response caused her distress.

175The Union submits that the Employer’s handling of the Grievor’s harassment complaints stands in clear contrast to its response to the January 2019 “purchasing beer from a sales rep” incident. That incident appears to have been treated more seriously, investigated more carefully, and documented more thoroughly by the Employer than the Grievor’s harassment complaints.

176The Employer’s failure to adequately intervene permitted the harassment and bullying to continue and fester, ultimately bringing the Grievor to her breaking point, where she could no longer work with Manhas and requested a temporary transfer. The Employer, then again, failing to appreciate the severity of the situation, proceeded to transfer the Grievor to stores that she repeatedly stated would not work for her.

177This sequence of events culminated in the Grievor accepting a permanent transfer “under duress” to a store outside of her local. The Grievor found the transfers distressing. Rather than being supported as a complainant, the Grievor was effectively punished for filing harassment complaints and made to feel as if she was the problem.

c. Remedy

178The Union submits that the Grievor testified about the long-term impact of Manhas’ conduct towards her, the lack of intervention and follow-up from the Employer, and the store transfers. In the Union’s submission, she stated that she feels like she is looking over her shoulder all the time, even in her current role. She has no trust in her co-workers or management, and she is now preoccupied with the concern that people are trying to set her up. She also testified that she has lost her desire for the work she put into the Union in helping people and in trying to make improvements. She said she now experiences a lot of anxiety and stress.

179The Union seeks a declaration and damages to compensate the Grievor for the humiliation, frustration and indignity she experienced, and for the Employer’s failure to adequately investigate and provide a harassment-free work environment.

180The Union relies on Ontario Public Service Employees Union (Williams) v Ontario (Community Safety and Correctional Services), 2015 CanLII 9001 (ON GSB), in which Arbitrator Albertyn declared that, following an investigation, the Employer failed to promptly advise the Grievor of the investigation outcome. The Grievor was awarded general damages of $3,500 for breach of the collective agreement and Employer’s WDHP policy. In connection with a second incident that was not investigated by the Employer involving an allegation that another colleague had deliberately delayed the Grievor’s exit from the workplace and that there were racial undertones to his conduct, Arbitrator Albertyn found an investigation ought to have been conducted and that a declaration was sufficient relief.

181The Union relies on the remedy decision of Arbitrator McIntyre in Toronto Metropolitan University v. Toronto Metropolitan Faculty Association, 2023 CanLII 93288 (ON LA) in which $30,000 in general damages were awarded for breaches of the collective agreement, OHSA, and Code arising from the employer’s failure to investigate harassment allegations, failure to advise the Grievor of the investigation outcome, and arbitrary workplace responses. The damages were to compensate the Grievor for mental distress, injury to her dignity and self-esteem, and the negative impacts on her health and wellbeing. Arbitrator McIntyre’s damages award was based on the following conclusions:

1. The University was in breach of its obligations under subsection 32.07(1)(b) of OHSA to provide the Grievor with the results of the investigation and advise of any corrective action in a timely manner, which had caused the Grievor distress.
2. The University did not relocate the respondent or Grievor’s adjacent offices, and the Grievor was moved to other workspaces. The Employer’s communications of the matter delivered the message that the Grievor was the problem. The University’s handling of the matter was arbitrary and unfair and resulted in mental distress for the Grievor.
3. The Grievor had made reports about the Respondent’s inappropriate conduct, which included the respondent following her, glaring at her, approaching her in a hostile manner, driving close to her, sitting in the dark before she entered a room, and removing her posters. Although the University investigated the risk of violence, Arbitrator McIntyre held that the University breached its obligations under OHSA by failing to investigate the Grievor’s complaints through the lens of harassment. Given the passage of time, a new investigation would not produce a reliable report, and thus, damages and a declaration were found to be the appropriate remedy for the failure to investigate.
4. The Grievor had also made a complaint with the University’s Human Rights Service (“HRS”) about discrimination, harassment, and bullying on the basis of gender and sexual orientation, and the University’s failure to accommodate. The University did not proceed with the investigation into her complaint, and it was later held in abeyance due to grievance proceedings. Arbitrator McIntyre determined that this was a serious breach warranting damages and a declaration for failure to investigate.

182The Union further relies on the remedy decision in Queen's University v Queen's University Faculty Association, 2019 CanLII 58233 (ON LA), in which Arbitrator Burkett awarded $20,000 in general damages for breach of the collective agreement arising from the unfair relocation of the Grievor’s office undermining her dignity and reputation, and $5,000 punitive damages for egregious Employer conduct. In the merits decision, Queen's University v Queen's University Faculty Association, 2019 CanLII 17950 (ON LA), Arbitrator Burkett found that the University breached the collective agreement in relocating the Grievor’s office during the investigation of cross-harassment complaints in a manner that undermined the dignity, self-respect, and reputation of the Grievor and caused her mental distress.

183The Union submits that, as in the cases of Williams, Toronto Metropolitan University, and Queen’s University Faculty Association, the Grievor is entitled to a declaration and damages for the Employer’s procedural faults in handling her complaints. Similar to Williams and Toronto Metropolitan University, while there was no failure to investigate some of the allegations, the deficiency was the Employer’s failure to respond promptly or in a timely manner to the Grievor’s wish to obtain an outcome to her complaint, which resulted in injury to her dignity and feelings of self-respect. Similar to Toronto Metropolitan University, the Employer failed to view the issue through the lens of harassment, ignored human rights-related allegations, and conveyed that the Grievor was the problem through its decision to transfer her out of the workplace permanently.

184With respect to remedy regarding human rights violations in particular, in ADGA Group Consultants Inc v Lane, 2008 CanLII 39605; 91 OR (3d) 649, the Divisional Court confirmed that an award to compensate for the “experience of victimization” is predicated upon a number of considerations, including: the impact of the infringement, the duration, frequency and intensity of the offensive conduct; the vulnerability of the complainant; the objections to the offensive conduct; and knowledge that the conduct was unwelcome.

185The Union submits that Arunachalam v Best Buy Canada, 2010 CanLII 1880 (HRTO) also provides guidance regarding the relevant factors in determining damages in a particular case. The more prolonged, hurtful and serious, the greater the injury to dignity, feelings and self-respect, and there is also a recognition of the applicant’s particular experience.

186The Union submits that the harassing conduct towards the Grievor was prolonged and at times intensely offensive. She was yelled and sworn at, called a “bitch” (a demeaning and derogatory term), and accused of faking her disability. The impact on the Grievor was significant and resulted in her transfer and experiencing long-term effects of loss of trust, “looking over her shoulder,” anxiety and stress. Manhas received two letters of counsel regarding two of the incidents, which confirmed acknowledgement of the fact that her conduct was unwelcome and unacceptable.

187The Union seeks $20,000 in damages, and submits such amount falls within the range of damages awarded in similar cases and reflects the seriousness of the Employer’s violations of the collective agreement and legislation, and the impact on the Grievor.

188The Union, on behalf of the Grievor, seeks the following remedies:

1. A declaration that the Employer has violated the Grievor’s rights under Articles 1, 2, and 33 of the Collective Agreement, the Occupational Health and Safety Act and the Human Rights Code;
2. A declaration that the Employer failed to provide the Grievor with a harassment free work environment;
3. A declaration that the Employer failed to adequately investigate the Grievor’s complaints against Ms. Manhas;
4. $20,000 in damages for injury to dignity and self-respect and the Employer’s failure to adequately investigate and follow their own policies.

(ii) The Employer’s Submissions

189The Employer submits that the Union bears the evidentiary and the legal onus to prove its case and has failed to fulfill either onus. In particular, the Employer argues as follows:

a. The evidence does not establish that the Grievor was subject to harassment according to the legal definition of “harassment.”

b. It follows the Employer did not fail to provide the Grievor with a workplace free from harassment.

c. The Employer investigated the Grievor’s complaints of harassment in a manner that was appropriate in the circumstances and the Grievor was advised of the outcomes of the investigations expressly, albeit not in writing.

d. The Grievor’s transfer to another store was both at the Grievor’s request and within management's prerogative and was carried out in a fair and legitimate manner, giving due consideration to the Grievor’s preferences and objections.

190As with the Union’s submissions I have not reproduced the Employer’s submissions in respect of the facts. Where there is a fact in dispute, I have dealt with it above in the sections entitled Credibility and Findings of Fact.

a. Submissions on Whether the Grievor was Bullied or Harassed

191In respect of the October 2018 incident, the Employer argues that the incident was unfortunate and inappropriate but did not constitute harassment by any legal definition. The Employer submits that the Grievor provoked Manhas by unnecessarily criticizing her for not helping a customer. The Employer submits that this was an instance of two co-workers in conflict, not a one-sided attack on the Grievor. Further, the Employer argues, the matter was not so severe of a single incident to meet the significant threshold of conduct that may be found to constitute workplace harassment.

192Concerning the January 2019 incident, the Employer disputes that Manhas should have spoken to the Grievor about the matter rather than raising it with management. While Taylor did testify that Manhas could have raised the issue directly with the Grievor she also testified that there is always the ability for an employee to raise an ethics concern to management. The investigation clearly established that the Grievor purchased the product through the brewery. Employees must be able to raise ethics concerns to management and in this case those concerns were reasonable, based on the optics of the situation. The Employer submits that the incident does not amount to harassment.

193Turning to the June 2019 incident, the Employer agrees an incident occurred that needed to be addressed by management but argues that it did not take place as described by the Grievor in her complaint. The Employer submits that the Grievor portrayed the incident as a one-sided attack by Manhas while concealing the fact that Cole’s actions were so problematic that she ended up receiving the same form of non-disciplinary letter of counsel from the incident as Manhas. The Employer argues that the Grievor provoked Manhas, at the end of her shift when Manhas was desperate to leave, by inserting herself into a disagreement between Manhas and Cole. The Employer further argues that the incident was not as grave as portrayed by the Grievor in her complaint or her evidence.

194The Employer further argues that the matter was investigated. Thornington investigated the incident beginning with a review of the video at which time he noted that Cole's contributions to the incident had been omitted from the Grievor’s written complaint. Thornington coordinated with Morrison to set up meetings with Cole, Manhas and Bartallo. Thornington testified that he determined that tempers were high and people were upset. The LCBO determined that there was no need for a formal investigation upon reviewing the video in light of the substance and glaring omissions from the Grievor’s complaint. He described the incident as co-workers losing their temper. Thornington testified that this matter is normally dealt with by meeting with the employees with Union representation and moving on. The Employer submits that Thornington had the assistance of human resources throughout the process.

195The Employer submits that Thornington spoke with the Grievor in the presence of Morrison about this incident and told her that they had concluded there was no harassment. Thornington said they did not provide a written outcome and did not share the consequences for Manhas and Cole.

196In respect of the August 29, 2019 incident concerning the wooden product box, Thornington testified that, after speaking with Selariu, he had no concerns about what had occurred. He found Selariu was not hostile about the incident. The Grievor was not disciplined for taking the box and was not required to return the box. Thornington concluded that the Grievor was asked that, if she wanted to take a box, that it be cleared by Manhas first and that signage put up was consistent with this message. Thornington concluded there was no need to view the camera footage as the fact that the Grievor took the box was a non-issue and did not warrant any further investigation.

197The Employer submits that the Grievor’s allegation of harassment stemming from this issue is that it was a ploy by Manhas to get the Grievor in trouble. The Employer submits that, given that the Grievor did not get into trouble, this incident cannot constitute workplace harassment.

198Turning to the store transfer, the Employer argues that the Grievor’s store transfers were carried out properly. Article 22.10(d) of the collective agreement provides as follows:

(d) For clarity, Article 22 does not, in any way, restrict management rights to transfer employees for operational or bona fide reasons. The employer will provide the Local President with a copy of an employee’s transfer letter.

199Thornington testified that he had the ability to transfer anyone within his district based on operational needs. The Grievor demanded that either she or Manhas be transferred and Thornington arranged for her transfer to store 580. Initially there was some confusion because Thorington did not know that, to continue to fulfill her union duties, the Grievor needed to be transferred to a store within her own local union area or be transferred to a store outside of her local union area but on a temporary basis. Further, Thorington was not aware of the boundaries of the local union area that the Grievor served. When the issue was brought to his attention, Thornington worked to ensure that the Grievor’s transfer to store 580 and then to store 747 was done on a temporary basis.

199The Employer submits that, on September 19, 2019, Thornington and Morrison met with the Grievor and reviewed all her concerns stemming from her work at store 585 and her dealings with Manhas and Selariu. Thornington testified that all three agreed that the Grievor and Manhas could not work together.

200Thornington testified that he had a need to staff the new store 747 with full time employees. He testified he talked to the Grievor about the opportunity even before speaking to her about her complaints in September. When the Grievor insisted she could not work with Manhas Thornington saw this as an opportunity for a fresh start as she had previously indicated that she wanted to participate in a new store opening.

201The Employer submits that the Union has fallen far short of its onus to prove transferring the Grievor constituted a punishment.

202The Employer relies on the content of the Workplace Harassment Prevention Discrimination and Harassment Policy and specifically the following statement as to conduct that is not covered by the Policy:

What this Policy does not Prohibit or Cover

This policy does not prohibit reasonable action or conduct by a management or supervisory employee which relates to the management and direction of workers or the workplace, including performance reviews, work direction, work assignments, scheduling, workplace inspections, counseling and disciplinary action, etc.

This policy does not prohibit differences of opinion, disagreements, and isolated acts of rudeness between employees.

[emphasis added]

203The Employer does not dispute the definitions of workplace harassment but says that the incidents complained of do not meet the legal definitions. I have omitted the Employer’s overview of the evidence.

204The Employer submits that the October 2018 and June 2019 incidents involved aggressive conduct for which employees were counseled. The Employer submits that it was roughly 11 months between the October 2018 incident and the date the Grievor was transferred out of store 585. The evidence does not constitute a “course of conduct”.

205The Employer argues that it is established in the case law that not every incident of disrespect, argument, or even fight will constitute harassment. In Communications, Energy and Paperworkers Union of Canada, Local 520 v Motor Coils Manufacturing Ltd (Steacy Grievance), [2015] OLAA No 263[1] Arbitrator Manwaring made the following observations:

91 The cases cited also show that the challenge in harassment cases is to distinguish between, on the one hand, the normal abrasiveness of daily life in the workplace including personal animosity and personality conflicts and, on the other hand, harassment, (see Re Canadian Union of Public Employees and Office and Professional Employees' International Union, Local 491 cited above.) In the S v. M, G, Z case Arbitrator Laing said at par. 248:

There is one more dimension that should be addressed. As I stated earlier in this award, harassment is a serious subject and allegations of such an offense must be dealt with in a serious way, as was the case here. The reverse is also true. Not every employment bruise should be treated under this process. …

In my opinion, these cases establish that the harassment process should not be used to deal with personality conflicts, personal animosity or dissatisfaction with an individual's management style. A supervisor may be incompetent, irritating, annoying or frustrating. He or she may be abrasive or overly assertive. His or her management style may drive employees nuts but the fact that employees do not like the management style of a supervisor does not mean that his or her conduct amounts to harassment.

[emphasis added]

206The Employer argues that the analysis set out above in Motor Oils Manufacturing Ltd. applied to abrasiveness between an employee and supervisor, ought to apply equally to co-workers especially in light of the fact that the Policy: “does not prohibit differences of opinion, disagreements, and isolated acts of rudeness between employees”. The Employer argues that, when viewed objectively, the incidents of October 2018 and June 2019 were isolated acts of rudeness between employees. The incidents of January 2019 and August 2019 were offensive due to the Grievor’s subjective interpretation and suspicions of Manhas.

207The Employer also relies on Motor Coils Manufacturing for the following statement by Arbitrator Manwaring as to what amounts to harassment:

92 What was harassment according to the case law? In the Prestressed Systems case, a racist or ethnically based comment violating the Human Rights Code constituted harassment. In the City of Calgary case, there was on-going sexual harassment that caused profound psychological harm. In the Nunavut case, after an investigation concluded that there was no misconduct on the part of the employee, the Employer sent someone into the community to seek out proof of unknown misconduct in a way that was demeaning and humiliating to the employee. It failed to support the employee in any way against a campaign in the community to drive her out of her position and out of the community. In the Canada Safeway case, there was a physical assault - the supervisor pushed the employee using unnecessary physical force.

Did the grievor's supervisor engage in a course of vexatious or degrading conduct directed at the grievor that was known or ought reasonably to be known to be unwelcome?

93 The March 6 incident involved inappropriate conduct on the part of both the grievor and her supervisor. The grievor was showed a lack of respect for her supervisor in dismissing him with an "adios" and in shooing him away. Her supervisor acted inappropriately in returning to her workstation, pointing his finger at her, waving his arms and yelling at her that she should not dismiss him. Their testimony was contradictory regarding how close Mr. Deschambault was standing when he yelled at the grievor. As I said previously, the grievor's testimony is more credible on this point. I conclude that her supervisor was standing quite close to her, close enough to make her take a step back. There was no physical contact and he made no threats of physical violence. The Union at times said he was one foot away and at others that he was two feet away. I do not think that it is necessary to decide the exact distance. He was standing very close to her, pointing and waving his arms.

94 In response, the grievor waved her arms and raised her voice. In other words, they both were yelling. The yelling did not last long and the incident ended with both parties lowering their voices. The entire incident lasted no more than one or two minutes.

95 There is no doubt in my mind that Mr. Deschambault handled this situation very poorly. He had legitimate grounds to tell the grievor to change her behaviour and attitude. However, his approach was totally inappropriate. He should have taken her aside and spoken to her in a reasonable tone of voice to explain why her behaviour in dismissing him was unacceptable in the workplace.

96 The question is whether this incident in itself amounts to a course of vexatious or degrading comment or conduct. In my opinion it does not. The fact that Mr. Deschambault dealt with the situation ineptly does not mean that his behaviour amounted to harassment. While it was clearly conduct directed at, or personal to, the grievor, it does not cross the threshold of harassment. Poor management skills are not in themselves enough to transform a badly handled situation into personal harassment.

99 In my opinion, taken individually, none of the three incidents involving Mr. Deschambault constitute harassment. Taken collectively, they do not acquire a different significance. One serious incident involving a workplace dispute and two minor incidents not in themselves harassment over a period of five to six months are not enough to establish a course of conduct directed at the grievor amounting to harassment.

[emphasis added]

208The Employer relies on Metro Ontario Inc. v United Food and Commercial Workers Union, Local 175 And Local 633, 2017 CanLII 30380 (ON LA), concerning a grievance that arose from allegations by the Grievor, a meat cutter, that he was harassed by the store manager, Mr. Roach. The Grievor’s primary allegation was that Mr. Roach intentionally stepped on his toe during their first interaction after Mr. Roach returned from vacation, which the Grievor characterized as harassment, intimidation, or retaliation after the Grievor previous refused to move frozen turkeys because he was not wearing steel-toe shoes. The Grievor also alleged ongoing “subtle harassment,” including excessive supervision, monitoring of breaks and time punches, standing too close, poking him in the shoulder, being short or dismissive in interactions, and having an overly stern or dictatorial management style.

209Arbitrator Chauvin emphasized that harassment must be assessed objectively, not based on a Grievor’s subjective perceptions, and that minor, inadvertent, or innocuous acts do not constitute harassment. The arbitrator concluded that Mr. Roach did not engage in harassment and that the conflict in the workplace was largely driven by the Grievor’s confrontational conduct and misperceptions. The decision cautioned against using harassment processes to address personality conflicts or dissatisfaction with management style, reiterating that not every workplace dispute or minor incident rises to the level of harassment.

210The Employer submits that the evidence establishes that Grievor is prone to interpersonal conflict in the workplace. Her ongoing conflict with Manhas was significant and influenced her subjective perceptions of what was happening in the workplace. The Employer submits that when the incidents are viewed on an objective basis, as the Employer has done through its investigations and maintains after a full review of all the evidence, the Grievor was not subject to workplace harassment.

b. The Employer’s Response to the Complaints

211The Employer begins its submissions concerning its response to the Complaints by reviewing the relevant statutory, collective agreement and policy provisions. These provisions are set out above and are not repeated here. The Employer submits that the OHSA does not specify how an investigation is to be carried out and the Employer has not breached its OHSA duties because the Grievor prefers a different process than the one undertaken.

212The Employer notes that the Ministry of Labour (as it then was) published a document entitled “Workplace Violence and Harassment: Understanding the Law - September 2016” (the “Guide”) in which, at section 3.3 under the sub-heading “What is an appropriate investigation?” the Guide states:

An appropriate investigation into a workplace harassment incident or complaint would generally be timely, fair, and address all relevant issues. An employer would need to treat an incident or complaint seriously, to act upon it promptly, and to allow time and sufficient. resources to investigate and deal with it.

Some matters will not require a complicated investigation (for example, where a bar patron is harassing staff or if there is a complaint that does not, on its face, pertain to workplace harassment).

During the investigation, the worker who complained about workplace harassment should be kept informed about the status of the investigation, as should the alleged harasser if he or she also works for the employer.

Documentation of the investigation is also important. Where possible, it should include names, dates, the complaint, details of the incident(s), notes from interviews and meetings, associated documents or evidence, any investigation report, and any actions taken as a result of the incident or complaint and investigation.

213The Employer submits that the Guide, like the OHSA, does not require an investigation to follow any specific process or procedure. The Employer submits that the Guide as well as the “Code of practice to address workplace harassment” relied upon by the Union does not have legal authority (see: Toronto Metropolitan Faculty Association v Toronto Metropolitan University, 2024 CanLII 109523 (ON LA) (Hart) at paragraph 74.)

214The Employer’s submissions next summarize the evidence of Thornington and Taylor concerning their investigations into the Grievor’s complaints which is omitted. The Employer submits that the evidence establishes the Employer’s practice is that harassment complaints are handled by the Store Manager unless they were escalated to the District Manager. Taylor and Thornington relied on Human Resources representatives within LCBO to guide and advise them in the course of investigating workplace harassment complaints. The Employer argues the Board ought to infer from this that they were guided appropriately and followed reasonable procedure while completing the investigations.

215After a review of the steps taken by Taylor and Thornington in connection with investigating the October 2018 and June 2019 incidents, the Employer argues that they were investigated and non-disciplinary letters of counsel were given to Manhas and Cole.

216In respect of the August 2019 complaint, the Employer submits Thornington spoke to Selariu and was satisfied that the Grievor took the box and that Selariu was not concerned about it to any significant extent. The alleged hostility that the Grievor subjectively perceived from Selariu did not exist. Thornington concluded that there was no reason to investigate further.

217The Employer submits that Thornington met with the Grievor on September 19, 2019 to review all her workplace complaints as set out in Thornington’s December 12, 2019 email to Ledwidge.

218While the GSB may impugn whether the Employer’s process was carried out in a manner compliant with its policies or the applicable legislation, the Employer submits that the Board ought to pay deference to the Employer’s findings. This is consistent with the finding of the Ontario Labour Relations Board that “it may not be” within the Board’s jurisdiction to consider the appropriateness of an employer’s investigation findings or corrective action taken under the Occupational Health and Safety Act.

219In Shannon Horner v Stelco Inc. Lake Erie, 2024 CanLII 16448 (ON LRB) the employer conducted an investigation jointly with the Union, and issued a conclusion letter disclosing only that they found evidence of harassment, corrective action would be taken, and that mandatory training would be implemented. Vice-Chair Kugler commented on the purpose and scope of s.32.0.7.(1)(b) in the following paragraphs:

50. In the Board’s view, the natural meaning which appears when section 32.0.7(1)(b) is simply read through imposes a greater disclosure obligation on Stelco than that which was disclosed to Ms. Horner in the October 12, 2022 closure letter. Simply put, to be “informed” of the “results” of a harassment investigation and “of any” corrective action that has or will be taken, one must be advised of the specific results arising from a complaint of harassment, and of the specific corrective measures taken by an employer to address findings of harassment. This is consistent rather than inconsistent with the dictionary definitions relied upon by Stelco. In the present matter, Stelco’s October 12, 2022 closure letter did not inform Ms. Horner of which of the named respondents to the harassment complaint were found to have engaged in harassment, nor did it inform her of the corrective action that had or would be taken to respond to such findings.

51. … While it may not be within the Board’s jurisdiction under the Act to consider the appropriateness of an employer’s investigative findings or the corrective measures taken as a result, that does not negate the rather trite proposition that providing this information to a victim of workplace harassment serves to protect workers from workplace harassment. Put another way, without this information being conveyed, without knowing which respondents were found to have engaged in harassment and what steps an employer has or will be taking to respond to same, a victim of workplace harassment is left with little reliable information concerning serious workplace health and safety matters. That outcome diminishes rather than promotes the objective of protecting workers from workplace harassment.

52. Similarly, interpreting section 32.0.7(1)(b) of the Act to require disclosure of the results with respect to each of the named respondents and the specific corrective measures taken by Stelco is consistent with the purpose of the Act as a whole. As noted in Bondfield, supra, the Act is public welfare legislation that is designed to provide a minimum level of protection for the health and safety of workers and narrow or technical interpretations that would interfere or frustrate that purpose should be avoided. …

53. However, the Board agrees with Stelco that section 32.0.7(1)(b) of the Act does not go as far as the applicant, the Union and the Director suggest. The Board does not accept that it requires an employer to provide a complainant with a “report” setting out all of the factual “findings” reached during an investigation into a complaint of workplace harassment. Nor does it require an employer to disclose the specific acts of harassment that were found to have occurred. The words used cannot reasonably bear that outcome. I agree with Stelco that where the legislature intended to direct a party to produce “reports” or “findings”, it says so expressly in the Act. In fact, the word “report” and “findings” are used sixty-three and nine times respectively throughout the Act. The legislature did not do so in section 32.0.7(1)(b) of the Act, and that legislative choice must be given effect by the Board.

54. I also accept the submission of Stelco and the Union that disclosure of the specific level of discipline that may be imposed by an employer as a result of a finding of workplace harassment is not required under section 32.0.7(1)(b) of the Act, as that information is confidential, and it is not apparent to the Board that its disclosure would advance the legislative purpose of protecting workers.

55. … To repeat, the Employer is not required to disclose a report summarizing all the factual findings that it reached during its investigation, nor is it required to disclose information relied upon by the Employer to justify the appropriateness of the corrective measures that it has taken. …

[emphasis added]

220Vice-Chair Kugler determined at paragraph 56 that the employer failed to comply with s.32.0.7(1)(b) of the OHSA because its disclosure of the “results” of the investigation did not identify which of the named respondents were found to have engaged in harassment as alleged; and it did not disclose the specific corrective measures that had or would be taken as a result of the investigation. The Vice-Chair’s disposition was to grant the application in part, and order that the employer re-issue a closure letter in a manner that rectifies the deficiencies noted above.

221The Employer argues that, in the instant case, the Employer did not find that the conduct complained of met the definition of workplace harassment. The Employer submits that the Board ought to show deference to the individuals who conducted the investigations first-hand and not disturb their conclusions. The Employer communicated the outcome of its investigations to the Grievor, specifically that it did not find harassment. Accordingly, the Grievor was informed of the results of the investigations.

222In terms of corrective action, the Employer submits that since the Employer did not find harassment, there was no “corrective action” within the meaning of s.32.0.7(1)(b) of the Act and therefore no failure to disclose corrective action taken. In the alternative, the corrective action taken was:

a. Management spoke with each of Maria and Manjeet, telling them to treat each other with respect in the workplace on or around October 22, 2018

b. Non-disciplinary letter of counsel to Manjeet Manhas on October 26, 2018;

c. Non-disciplinary letter of counsel to Maria Bauer in or around October 2018;

d. Non-disciplinary letter of counsel to Maria Bauer on March 29, 2019;

e. Non-disciplinary letter of counsel to Olivia Cole on August 8, 2019;

f. Non-disciplinary letter of counsel to Manjeet Manhas on August 8, 2019;

g. Carmen asking Maria to consult with Manjeet before taking product boxes, and posting signage to all staff with the same message.

223Pursuant to paragraph 54 of Vice-Chair Kugler’s decision in Stelco referred to above, insofar as the corrective action was a manner of disciplinary response, “disclosure of the specific level of discipline that may be imposed by an employer as a result of a finding of workplace harassment is not required under section 32.0.7(1)(b) of the Act, as that information is confidential, and it is not apparent to the Board that its disclosure would advance the legislative purpose of protecting workers.” The Employer submits that while the letters of counsel are not disciplinary for purposes of progressive discipline under the collective agreement, they are in the same character as a disciplinary notice. They are confidential and it does not further any labour relations or health and safety purpose to disclose letters of counsel in order to conclude a workplace investigation.

c. Remedy

224The Employer states that it fulfilled its substantive responsibilities to properly investigate the complaints, with one procedural defect. The Grievor was not provided with a written outcome of the investigations into her complaints.

225The Employer submits that, by virtue of the arbitration process, the Grievor is fully aware of the outcomes of the Employer’s investigations, and corrective actions taken. Accordingly, the Employer submits that the appropriate remedy is a declaration that the Employer failed to provide written statements of conclusion to their investigations to the Grievor.

226In the alternative, the Employer submits the Board may direct the Employer to provide the Grievor with a written statement of the conclusions of its investigations.

227Finally, the Employer submits that monetary damages are not appropriate in the circumstances, and the cases relied upon by the Union are not analogous to the current grievance.

228Referring to the cases relied upon by the Union, the Employer submits that the context of Arbitrator McIntyre’s award in Toronto Metropolitan University v Toronto Metropolitan Faculty Association, 2023 CanLII 93288 (ON LA) is not analogous to the current case. At paragraph 3 of that decision Arbitrator McIntyre summarized the violations found to have occurred:

3In the March Award, I held that the University was in violation of its obligations in several, but not all, of the investigations identified by the Association. The violations declared to have occurred were as follows:

I. Failing to advise the Grievor in a timely way of the results of the Thomlinson investigation into her complaints regarding the respondent and the corrective action taken.

II. Upon receipt of the Thomlinson Report, failing to arrange a reassignment of offices to allow the Grievor to have an office within the school which was not in proximity to the respondent.

III. Failing to do a workplace harassment investigation of the events alleging harassment by the respondent reported to the University by the Grievor in April through May of 2017.

IV. Failing to do a workplace harassment investigation of the events alleging harassment by the respondent reported to the University by the Grievor in March through June of 2018.

V. Failing to do a human rights investigation into the Grievor’s complaint of November 19, 2017 as further particularized in the intake interview of December 2017.

229The Employer submits that the University’s failing in that case was considerably more serious than in the present case where the failure is limited to a procedural one of communicating results in writing rather than verbally. Further, the Employer argues, in the Toronto Metropolitan University case, the University failed to even investigate two workplace harassment complaints plus one complaint under the Code. When the University had an investigation conducted, the University withheld the results and failed to act on it.

230The Employer submits that, in the case of Ontario Public Service Employees Union (Williams) v Ontario (Community Safety and Correctional Services), 2015 CanLII 9001 (ON GSB) referred to in the Union’s submissions, Arbitrator Albertyn found at paragraph 73 that the Employer: “failed to advise the Grievor in a timely manner of the outcome of the investigation. For this the Grievor is entitled to general damages of $3,500.” The Employer submits that, in this case, the Grievor was advised of the outcomes of the investigations albeit verbally rather than in writing. The Employer therefore submits that there is no justification in this case for a general damages award of even $3,500.

231The Employer submits that the Grievor was not subject to workplace harassment through the incidents that were subject to her Grievance. The incidents relied upon by the Union and alleged by the Grievor reflect personality conflict, mutual antagonism, and rudeness, not a course of vexatious conduct. The Grievor’s subjective perceptions were shaped by animus and are not supported by objective evidence. Indeed, the evidence established that the Grievor provoked her alleged harasser, Manhas, both in October 2018 and June 2019.

232The Employer’s submits its investigations were appropriate in the circumstances. “Formal Investigations” as described in the Employer’s Policy were not mandatory. The Grievor’s complaints were addressed promptly and with Human Resources guidance. Where facts were disputed or unclear, (such as the January 2019 and June 2019 incidents) investigations were more comprehensive. The outcomes of the investigations were communicated verbally, though not in writing.

233The Grievor’s transfer was proper and justified and indeed undertaken only after she demanded that either she or Manjeet be moved. Operational needs justified moving the Grievor to store 580 and then in particular to store 747, although given the Grievor’s insistence on staying in her local, the move to store 390 was also reasonable. The transfers were handled promptly, carefully, flexibly, in collaboration with the Grievor and Union, and with regard to her preferences.

234The Employer submits that the grievance ought to be dismissed altogether, and only in the alternative, that the Board ought to declare that the Employer failed to comply with section 32.0.7(1)(b) of the OHSA by failing to provide the Grievor with written as opposed to verbal, conclusions from its investigations into her complaints.

Analysis and Decision

235As set out above, there are three issues for determination in this matter. First, was the Grievor subjected to workplace harassment and/or bullying? Second, were there failures in the way the Employer responded to the Grievor’s complaints and, if so, did they cause the Grievor to be subjected to an unsafe and unhealthy workplace? Third, what is the appropriate remedy.

(i) Was the Grievor Bullied and/or Harassed?

236Prior to October 2018, the relationship between the Grievor and Manhas was characterized by mutual hostility. When they were both in the store, the friction between them created a toxic atmosphere for the other staff. They were not speaking to one another, and they were described by witnesses as oil and water.

237On October 20, 2018, Manhas paged the Grievor to assist a beer customer. This annoyed the Grievor as the Grievor held the view Manhas regularly refused to assist customers unless they were Vintages customers. As the Grievor walked past Manhas on her way to help the customer, the Grievor asked Manhas why she did not help the customer herself and told her that she did not call Manhas when people needed help in Vintages. Manhas raised her voice and yelled at the Grievor. After the Grievor helped the customer, both the Grievor and Manhas were yelling at one another in the back room until DeCaro came out and told them both to calm down and separate. Manhas did not swear at the Grievor. Manhas did tell the Grievor to shut up.

238On October 21, 2018, the Grievor inappropriately attended at the store on her day off to view the DVR footage of October 20, 2018 to see if Manhas had tried to assist the beer customer. This fact was brought to the Employer’s attention by Manhas. Manhas complained and wanted the matter investigated.

239On October 22, 2018, there was a mediation meeting called by Selariu to try and resolve matters. Manhas was confrontational and initiated the yelling. During the meeting, both the Grievor and Manhas were yelling and pointing fingers at one another. The problem between Manhas and the Grievor at the meeting was mutual.

240The Union has put forward cases where yelling at another employee has been found to constitute workplace harassment. The Union argues Manhas yelling at the Grievor and telling her to shut up constitutes harassment.

241The Employer argues that the conduct in issue must be considered in light of the fact that the Grievor and Manhas did not get along, and the unwelcome behaviour was mutual. What occurred, the Employer argues, was not harassment but rather the result of mutual dislike and disagreement over workplace issues.

242As the cases relied upon by the Employer find, unwelcome conduct arising out of a personality conflict and concerning a dispute between two employees over the proper handling of a workplace issue may not be harassment See: Motor Coils Manufacturing, supra.

243Harassment is generally one sided; it is generally behaviour by one person against another person. Harassment is generally an ongoing repeated pattern of behaviour; the harasser is persistent in their conduct causing the victim ongoing distress. Harassment generally has the effect of undermining, intimidating, isolating or offending the victim. There is generally a sense that the harasser is exerting power over, or attempting to gain power over, the victim.

244A personality conflict is generally mutual. The individuals involved dislike one another and are engaged inappropriate conduct vis a vis the other. Personality conflicts generally occur because of differences in opinions, work styles, communication issues, or misunderstandings. The root of the inappropriate behaviour in the case of a personality conflict is generally a workplace issue over which the two individuals disagree. In the case of a personality conflict the unwelcome behaviour is not generally intended to demean, embarrass of intimidate but rather to vent over an issue in dispute between them with spillover of other grievances that have accumulated between them.

245Another way of distinguishing the two is through the lens of the language used in the OHSA. Section 32.0.7 of the OHSA suggests that a harassment complaint involves two people; a person who allegedly experienced harassment, the victim, and a person who is the alleged harasser. Harassment involves one person engaging in a course of vexatious comment or conduct that is unwelcome against another person. In the case of a personality conflict where two people mutually subject one another to unwelcome conduct, they are at one and the same time both the harasser and the victim.

246That is not to say that conduct arising out of a personality conduct cannot be harassment but rather that not all conduct arising out of a personality conduct is harassment. The personality conflict, and the mutuality of the unwelcome behaviour, is to be considered in determining whether harassment has occurred.

247It is my determination that this incident does not amount to harassment of the Grievor by Manhas. On the facts, both the Grievor and Manhas behaved inappropriately towards the other. The Grievor was annoyed with Manhas and spoke to her in an annoyed tone of voice. Manhas overreacted by yelling at the Grievor and telling her to shut up. The Grievor responded in kind and the two of them ended up in the backroom yelling at one another. The Grievor improperly attended at the workplace on her day off and viewed DVR footage of Manhas working which came to Manhas’ attention. The next day, at the meeting convened by Selariu, Manhas again was the first to yell but thereafter both the Grievor and Manhas engaged in yelling and pointing fingers at one another. The whole incident arose over a difference of opinion between the two as to proper customer service procedures. There was no identifiable “harasser” and no identifiable “victim.” As DeCaro testified the problem was mutual.

248It is my determination the Grievor was not harassed by Manhas as a result of the events of October 20 and 22, 2018.

249The next incident relied upon by the Grievor as an incident of harassment occurred in January 2019. A sales representative had brought a four pack of beer into the store that was not sold in the LCBO and, at the end of the day, the Grievor took the beer home. Because the Grievor paid for the beer electronically and did not have a hard copy of a receipt to attach to the beer no one knew that she had paid for it.

250Manhas informed Selariu that the Grievor had taken home beer brought in by a sales representative which, if true, could be a violation of the Employer’s Code of Business Conduct (“CBC”) which provides employees are generally not to accept gifts from persons having dealings with the LCBO. An investigation was done which the Grievor found to be very upsetting as she perceived that she was being accused of theft.

251The Union submits that this incident amounts to harassment of the Grievor by Manhas as Manhas informed the Employer of her taking the beer home in an effort to get her in trouble.

252Harassment is not determined based on the complainant’s subjective perceptions. A successful claim of harassment can only be established based on objective evidence. The question to be asked is whether a reasonable person would find the conduct to be a departure from reasonable conduct within the work environment in which it occurred (see: Ontario Public Service Employees Union (Plouffe) v. Ontario (Solicitor General), 2021 CanLII 127097 (ON GSB) at para. 279).

253Manhas had grounds to believe that the Grievor had engaged in conduct that may have contravened the Employer’s CBC. The CBC states that all employees are expected to report violations of the CBC and encourages employees to report any situation that may be in conflict with the spirit of the CBC to their immediate supervisor. Manhas followed the process set out in the CBC. Her report was not a false report. The Grievor was given a non-disciplinary letter of counsel as a result of the matter.

254It is my determination, having regard to the facts and contents of the CBC, that a reasonable person would not find reporting to the Employer that the Grievor had taken home beer brought into the store by a sales representative to be a departure from reasonable conduct. It is my determination that this incident does not amount to harassment.

255The next incident was in June 2019. My findings in connection with this incident are seriously hampered by my finding that the Grievor’s testimony is unreliable as well as Cole’s testimony concerning the conduct of the Grievor and Manhas.

256I have found that the Grievor was agitated because Cole, who she is very close to, was told by Manhas not to ring the buzzer. The issue was none of the Grievor’s business and certainly did not have to be dealt with at that time. Manhas was at the end of her shift and needed to leave. She too was agitated. The Grievor went into the office and admonished Manhas for telling Cole not to buzz which caused Manhas to get her back up. Manhas went to the door and challenged Cole and Cole then lost her temper and did three trips in quick succession from her register to the office yelling at Manhas each time. Cole admits that she may have called Manhas a fucking bitch. Given the admitted yelling between Cole and Manhas, it is highly probable that tensions escalated and, as occurred in October 2018, Manhas and the Grievor then engaged in a mutual yelling match bringing up past grievances and complaints they had with one another. The Grievor could have left the office and allowed Manhas to finish counting her tray but did not. Manhas asked the Grievor to get Bartallo to cash her out, but the Grievor refused. At some point, Manhas called the Grievor a bitch.

257This incident bears uncanny similarity to the incident in October 2018, eight months earlier. At the time of this incident, it remained the case that Manhas and the Grievor had a serious personality conflict and did not get along. This incident, like the one in October 2018, arose because of a work related issue. As with the October 2018 incident, the incident began with the Grievor chastising Manhas; Manhas getting her back up and it then degenerated into a yelling match. I found the first yelling match in October 2018 was not harassment. This is the second such incident in eight months.

258The fact that this is the second yelling match between the Grievor and Manhas does not change my conclusion that this is not harassment. As stated in connection with the October 2018 incident, the characteristics of harassment are generally: an identifiable victim and harasser; the conduct is persistent; the conduct undermines, intimidates or offends the victim; and the harasser is attempting to exert power over the victim. Personality conflicts are mutual, blow ups are generally over work related disagreements, and the unwelcome behaviour is not directed at undermining or demeaning the target but rather to vent about work related disputes between them. I find that this incident is not alone, or in combination with the October 2018 incident, harassment.

259The next incident occurred in August 2019. It has three elements. First, the Grievor was accused by Manhas, in the company of Selariu, of taking original product out of a wooden box and taking the box home. Second, following the accusation, signage was put up in the backroom telling employees not to take wooden boxes and, if they have any questions, to ask Manhas. Third, Selariu made comments to the Grievor during the course of this incident that the Grievor states are harassment.

260Concerning the false accusation, the Grievor testified that she believes Manhas took the wooden box that the Grievor had forgotten to take home out from under her register, placed it inside the Vintages cage in the backroom, and filled it with product that was not original to the box in order to get her in trouble. In the words of the Grievor “Manjeet set this up.” As indicated above, harassment is not determined based on the complainant’s subjective perceptions. A successful claim of harassment can only be established based on objective evidence. The question to be asked is whether a reasonable person would find the conduct to be a departure from reasonable conduct within the work environment in which it occurred.

261A reasonable person would not find it to be a departure from reasonable conduct for the Product Consultant in the store, the person responsible for Vintages, upon finding a wooden Vintages box sitting underneath a register, to put the box inside the Vintages cage and put some product inside of it. The first part of the Grievor’s theory does not amount to harassment.

262The second part of the Grievor’s theory, that Manhas put the wooden box inside the Vintages cage and filled it with product in order to get her into trouble is her subjective perception. The Grievor’s theory must be that Manhas expected the Grievor would go looking for the box, find it in the cage with product in it, remove the product and take the box home following which Manhas would go and report her for having done so hoping to get her in trouble. What is more probable, especially in light of the fact that Manhas had previously told the Grievor that the wooden boxes were for Vintage customers only, is that Manhas saw that the Grievor intended to take the box home, did not want her to take the box home, and therefore placed the box inside the cage and put product in it as a way of communicating that the box was not to be taken. It is probable that Manhas was trying to convey to the Grievor the box was not to be taken. I find that a reasonable person knowing the circumstances would not conclude that Manhas was setting the Grievor up to get in trouble.

263It is interesting to note that, when the Grievor found the box in the cage with product inside of it, a clear sign that whoever placed it there wanted the box to remain at the store, she took it anyway without even asking the Store Manager or Manhas why the box had been relocated to the cage and product put inside of it. It was not Manhas that got the Grievor in trouble; the Grievor got herself in trouble for want of asking a simple question as to whether the box was available for the taking in circumstances that suggested it was not. With that one simple question this incident could have been avoided.

264A further component of the Grievor’s allegation that she was harassed by the signage that was put up in the backroom that said:

Do not take any empty wooden boxes. They are for customers not employees. Any questions please ask Manjeet. Thank you.

The signs were approved by Selariu, the Store Manager.

265Taking empty product boxes was commonly done by the employees at store 585 and the practice was just to let the shift lead, Assistant Manager or Store Manager know that you were taking the empty box as you were leaving the store. The signs that were put up in store 585 communicated to employees that there was a change in that practice; employees were not to take the wooden boxes. Employees with questions were directed to Manhas. Manhas was the store Product Consultant in charge of Vintages.

266There is nothing unreasonable about the change in policy. As indicated above, employees at other stores are not permitted to take wooden boxes. The fact that the box issue with the Grievor was the catalyst for the change in policy does not turn a reasonable act into harassment.

267The Grievor was adamant in her testimony that management is not permitted to direct employees to ask another employee for permission to take a box. In this regard the Grievor is wrong. There's absolutely nothing wrong with management assigning such a function to a bargaining unit employee.

268The Grievor approached Selariu on two separate days challenging her decision to have employees ask questions of Manhas and challenging the decision that employees would no longer be permitted to take empty wooden boxes. The Grievor told Selariu the sign was wrong as employees are customers too. The Grievor questioned Selariu as to what was to happen if Manhas was not in the store. The Grievor quibbled with Selariu over the wording on the signs telling her if the objection was to taking boxes that had product in them, the wording on the signs should be: “Do not take original product out of boxes.” The Grievor told Selariu she felt the signs were directed at her. Selariu responded that the signs did not have the Grievor’s name on them, told her there was nothing wrong with the signs and that the Grievor found everything offensive. The Grievor testified that Selariu said the Grievor causes trouble and should let Manhas run her section. The Grievor testified that Selariu told her that it was not her job her job to deal with the Grievor and Manhas’ issues. The Grievor became so upset she left work. The Grievor said several times in her times in her testimony that the reason she became so upset and stressed was that Selariu was taking the side of Manhas.

269This incident involves an allegation that the Grievor was harassed by her manager. Unlike the incidents discussed above, which involved two bargaining unit employees, this incident involves a supervisory relationship. The case of Ontario Nurses Association v. Humber River Regional Hospital, 2017 CanLII 5456 (ON LA) (Goodfellow) contains a review of the following cases that discuss harassment allegations involving a manager: Government of the Province of British Columbia and BCGEU, 1995 CanLII 18346 (BC LA), 1995 CarswellBC 3166 (Laing); OPSEU and The Crown in Right of Ontario, 2015 CarswellOnt 3886 (Briggs); Eurocan Pulp and Paper and C.E.P, 2000 CarswellBC 2965 (Hope); Cara Operations and Teamsters, Local 647, 2005 CanLII 94066 (ON LA), 2005 CarswellOnt 7614 (Luborsky) and Shoppers Drug Mart and UFCW, Local 1518, 2007 Carswell BC 3880 (Larson).

270Based on a review of the jurisprudence cited above Arbitrator Goodfellow states:

While recognizing the effect that the supervisory relationship can reasonably have on the meaning that may be attached to certain workplace interactions, the case law is clear that management is not to be held to a “standard of perfection”. Supervision is a human business and human foibles come into play. Managers have the right to be wrong, to make mistakes, to occasionally overreact or under react, without having to worry that each and every unsatisfactory exchange, at least when viewed from the perspective of the employee, will constitute “harassment”. If it were otherwise, workplace law would be concerned with little else. And that is why a “course of conduct” or a “pattern” of vexatious behaviour is often looked for.

271The comments made by Selariu to the Grievor were made during a conversation where the Grievor was challenging a decision made by Selariu to put an end to employees taking boxes and to post signs directing employees to ask Manhas if they had any questions. The Grievor asked several questions clearly indicating disagreement with Selariu such as “employees are customers too” and telling her the wording on the signs was wrong. During this conversation the Grievor alleges Selariu told her the signs did not have her name on them, there was nothing wrong with the signs and the Grievor should let Manhas run her section. There is nothing harassing about these statements. Selariu is also alleged to have told the Grievor that she causes trouble, and it was not her job to deal with issues between Manhas and the Grievor. It is probable Selariu voiced these comments in a moment of frustration knowing that the Grievor’s criticisms arose because of her dislike for Manhas.

272In the case of Shoppers Drug Mart and UFCW Local 1518, 2007 CarswellBC 388 Arbitrator Larson found comments made by the supervisor to be rude and arguably harsh but not to amount harassment. Arbitrator Larson states: “it only becomes harassment when done in a seriously hostile or intimidating manner or in bad faith.”

273I do not find Selarius’ comments to be rude or harsh; she was responding to an obvious longstanding dispute between two employees. If she felt the Grievor was causing trouble, it did not amount to harassment for her to express that view to the Grievor.

274The Grievor testified that the fact that Selariu took Manhas’ side made her feel demeaned. Disputes between employees may have “sides”. The fact that management, in deciding how to move forward, chooses the approach preferred by one of the employees, and tells the other employee to deal with it, is not harassment. The Grievor’s feeling of being demeaned, came not from what Selariu said but, as the Grievor said in her complaint, because Selariu was taking the side of her long-time antagonist.

275I find that the Grievor was not harassed by either Manhas or Selariu because of this incident.

276As indicated above, I find the Grievor to be so lacking in credibility that I have only made findings of fact consistent with her testimony where it is supported by either another witness or findings made by the Employer during its investigations. The only evidence of Manhas accusing the Grievor of faking her hearing impairment and Selariu commenting on her knee injury came from the Grievor herself. I do not find her evidence to be reliable, and I do not find either of these comments were made.

277I turn then to consider whether the incidents, when viewed as a course of conduct amount to harassment. The first incident occurred in October 2018 and can broadly be described as a yelling match. The second incident was in January 2019 and was Manhas informing the Employer of the Grievor taking home beer brought in by the beer representative. The third incident, eight months after the first yelling match was a further yelling match. The final incident was the box incident and Selariu speaking to the Grievor with frustration and hostility.

278I do not find the incidents, when considered in combination, to amount to harassment. The Grievor is not unfamiliar with conflict. The evidence was replete with examples of her not getting along with other co-workers and managers. Thornington’s decision as to which store to transfer her to was complicated by consideration of whether there were any employees at the store under consideration that she refused to work with. In the case of one store, she had 27 grievances filed against the store manager. When told the manager was leaving she refused to go the store because the Assistant Store Manager had previously worked at store 585 and had “ganged up” on her. As at the date she testified she had three harassment complaints outstanding against other employees. The Grievor demonstrated traits that would make her a hard person to get along with and she fails to see that she has any responsibility for the events that occurred. No one deserves to be yelled at or sworn at in the workplace and certainly not twice but if an employee provokes another employee with whom they have an antagonistic relationship and when a reaction is provoked, they stand and yell back as opposed to walking away, that is a personality conflict and not harassment. Not every bad thing that happens at work is harassment.

279I find that none of the incidents relied upon by the Grievor alone or in combination amount to harassment.

280The Union challenges the permanent transfer of the Grievor out of store 585 as punishing the Grievor for bringing forward her harassment complaint and sending a signal to other employees that, if you file complaints, you will be punished. The Union argues that the Grievor accepted a temporary transfer out of the store on the understanding it was only while the Employer investigated her September 2019 complaint and took steps to end the harassment and she would then be transferred back to store 585.

281I have found that the Grievor and Manhas harboured bad feelings towards one another and did not get along. The Grievor herself asked the Employer “either transfer myself or Manjeet sooner than later.”

282Thornington, although on vacation at the time, made arrangements to have the Grievor transferred to store 580 the following day. Thornington testified that the move to 580 was to be temporary with the intention to further move the Grievor to store 747. Prior to the August 2019 incident, Thornington and the Grievor had talked about the fact that the LCBO would be opening a new store, store 747, and the Grievor had expressed interest in being involved in setting up the new store. When the Grievor wrote to Thornington asking that either she or Manhas be transferred out of store 585, he thought store 747 would be a very good fit for her. The Grievor would get the experience of setting up and opening a new store. Once the store was open, Thornington would need to staff it with full-time employees and the Grievor could become the Beer Ambassador and a health and safety representative as she was at store 585. The store was also close to the Grievor’s home.

283Thornington testified that it would have been very difficult to move Manhas as she was a Product Consultant. A Product Consultant is a specific position held by a person with specialized training. Product Consultants are only employed in stores that have a Vintages section. If Thornington transferred Manhas out of store 585, he would have to find another Product Consultant to move into the store. Store 747 did not need a Product Consultant as it did not have Vintages. If he moved Manhas into a store that had Vintages, he would have to bump the existing Product Consultant out of the store potentially setting off a chain of transfers.

284I do not find the Grievor’s transfer out of store 585 on a permanent basis to have been caused by the Employer’s failure to provide her with a safe and healthy work environment and nor do I find it to be a punishment for her filing her harassment complaints. The Employer had the right under the collective agreement to transfer the Grievor for operational reasons and it had operational reasons for doing so in this case both to separate two co-workers who due to their personality conflict were creating tension in the store for other employees and to staff a new store.

(ii) The Investigation

285As indicated above, it is not in dispute that the Grievor was not informed in writing of the results of the investigation conducted into her first and second complaints and of any corrective action taken as required by the OHSA, the collective agreement and the Employer’s policies. There is further no dispute that no investigation was conducted into the third complaint.

286The Employer submits that the obligations set out in section 32.0.7 of the OHSA do not apply as the conduct in issue did not amount to harassment. The Union argues that section 32.0.7, and the obligations set out therein, are triggered by “incidents and complaints of workplace harassment.”

287This argument was not given a great deal of attention by either party. I say this not to criticize the submissions, which were of a very high calibre, but rather to say that this decision was reached in the absence of the issue being thoroughly canvassed in argument. There may be cases and arguments on point that I am not aware of.

288The OHSA provides as follows:

32.0.7 (1) To protect a worker from workplace harassment, an employer shall ensure that,

(a) an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;

(b) the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, are informed in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation; ….

289The OHSA is considered a remedial public welfare statute and is to be given a large, liberal, and purposive interpretation. This means the OHSA is to be interpreted in a way that best ensures the protection of worker health and safety, rather than adopting a narrow or strict interpretation that might limit that protection.

290Section 32.0.7(a) of the OHSA states that an employer shall ensure that, “an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances.” As argued by the Union, the obligation to conduct an investigation is triggered by an “incident or complaint of workplace harassment.” The complaints filed by the Grievor in this case clearly allege harassment and set out alleged facts that amount to a prima facie case of harassment.

291Section 32.0.7(b) of the OHSA provides that “the worker who has allegedly experienced workplace harassment and the alleged harasser” are to be informed in writing of the results of the investigation and any corrective action taken or to be taken. The use of “allegedly experienced” and “alleged harasser” indicates the obligation is not predicated on a finding of workplace harassment but rather an allegation thereof.

292It is my determination that the filing of the complaints triggered the obligations set out in section 32.0.7 of the OHSA. The Employer’s finding that the conduct in issue did not amount to harassment did not negate those obligations.

293As such the Employer was obligated, upon receipt of each of the three complaints filed by the Grievor (October 2018; June 2019 and September 2019) to conduct an investigation “that is appropriate in the circumstances” and inform the Grievor and Manhas in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result.

294I have found that the Employer told the Grievor that it would not be investigating her September 2019 complaint and in fact did not do an investigation. I have further found the Employer informed the Grievor orally that the investigations into her October 2018 and June 2019 complaints were closed but did not inform her of the results of the investigations and of any corrective action taken or that would be taken as a result of the investigation.

295The Employer was legally obliged to conduct an investigation “appropriate in the circumstances” in the case of the September 2019 complaint and thereafter to inform the Grievor in writing of the results and any corrective actions taken. Its failure to do so is a violation of section 32.07(1)(a) and (b) of the OHSA and article 2.2 of the collective agreement. The Employer conducted an investigation into the October 2018 and June 2019 complaints and was legally obliged to advise the Grievor in writing of the results and any corrective action taken. Its failure to do so is a violation of section 32.0.7(b) of the OHSA and article 2.2 of the collective agreement.

(iii) Remedy

296I have found the Grievor was not harassed, and the Employer’s conduct did not result in her being exposed to an unsafe or unhealthy workplace. Thus, the facts of this matter are distinguishable from those in Toronto Metropolitan University v. Toronto Metropolitan Faculty Association, 2023 CanLII 9288 (ON LA) and Queen’s University v. Queen’s University Faculty Association, 2019 CanLII 5823 (ON LA) relied upon by the Union.

297Of the cases relied upon by the parties, Ontario Public Service Employees Union (Williams) v. Ontario (Community Safety and Correctional Service), 2015 CanLII 9001 (ON GSB) is the closest to the instant matter although it too is a case where there was a finding that harassment occurred. In Williams, Arbitrator Albertyn dealt with multiple grievances alleging violations of the Code in an expediated process. The first matter dealt with in his decision concerned a situation the grievor brought to the Employer’s attention but indicated she did not want investigated. The Employer investigated the incident in the absence of the grievor filing a complaint but failed to inform the grievor of the outcome for 15 months. In that case, the Employer had a policy, referred to in the decision as the WDHP policy, that provided for responses, by the Employer, to discrimination and harassment, in a timely manner. The policy set out timeframes of 15 days for deciding on the appropriate remedy in the case of an internal investigation and 30 days for an investigation using external investigators. In the case before Arbitrator Albertyn, the grievor was not informed of the outcome of the investigation for 15 months after completion of the investigation. Unlike the instant matter, the Williams case concerned a finding that the grievor had been subjected to harassment. The grievor was awarded $3,500. in general damages.

298In connection with a different incident, Arbitrator Albertyn found the Employer did not investigate a complaint by the grievor that a colleague had delayed her exit from the workplace and that there were racial overtones to his conduct. Arbitrator Albertyn found a failure to investigate and determined a declaration was a sufficient remedy in the circumstances.

299The Employer failed to investigate the Grievor’s September 4, 2019, complaint. The failure to investigate is a violation of section 32.0.7 of the OHSA and article 22 of the collective agreement. I have found the Employer communicated to the Grievor shortly after she filed her complaint that no investigation would be done. That communication does not relieve the Employer of its obligation in the OHSA and the collective agreement to do an investigation and communicate the results to the Grievor. The Respectful Workplace Policy provides that the Employer can choose to follow an “informal resolution process” or conduct an “investigation.” However, as set out above, the statutory requirements of the OHSA govern over the Employer’s policies. Policies do not negate the Employer’s statutory obligations.

300The Employer failed to comply with section 32.0.7 of the OHSA, article 2.2 of the collective agreement and its own policies when it failed to inform the Grievor in writing of the results of the investigations and any corrective action taken. I have found the Employer advised the Grievor orally that the investigations into her October 2018 and June 2019 complaints were closed but that is not sufficient and does not meet its statutory obligations.

301The Union points to the Grievor’s testimony about the long term impact of the conduct towards her, the lack of intervention and follow up from the Employer, and the store transfers. The Grievor testified that she feels like she's looking over her shoulder all the time, even in her current role. The Grievor testified she has no trust in her coworkers or in management and, she is now preoccupied with the concern that people are trying to set her up. She also testified that she has lost her desire for the work she put into the Union in helping people and in trying to make improvements. The Grievor further testified she now experiences a lot of anxiety and stress and is constantly worrying about someone trying to set her up.

302The long term impacts that the Grievor testified she has experienced are rooted in all the incidents that are reviewed above which I have found not to constitute harassment. The Grievor is not entitled to a remedy based on impacts she has experienced that do not flow from a violation of a statute or the collective agreement by the Employer. It is only the impact to the Grievor caused by the Employer’s failure to investigate the September 2019 incident and the Employer’s failure to inform her in writing of the results of the investigations that is relevant to the remedy to be awarded. I note that the Grievor has gone on to become an Assistant Store Manager and a Vice-President of her Union local since the filing of this grievance.

303In the circumstances I hereby order the Employer to pay to the Grievor the sum of four thousand five hundred dollars ($4,500.00) in general damages.

304I remain seized to deal with any issues arising out of this award.