P-2010-0702, P-2010-1055

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Lee et al

Complainant

• and -

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

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE COMPLAINANT

Mike Lee, Jim Allen, Bob Tuff, Tim McFadden, Stephen Jurkus, Chris Schuts, Dean Malloy, Mark Drakos, John McCoubrey, James Taylor, Paul Lipke

FOR THE EMPLOYER

Jennifer Richards Ministry of Government Services Labour Practice Group Counsel

HEARING

February 17, May 24 and 25, 2012.

Decision

1This decision deals with the complaints of several Operational Managers (OM’s) at Elgin Middlesex Detention Centre (EMDC). They allege that their workplace has been poisoned by the inaction of the employer in relation to harassment and disrespect from certain Correctional Officers, including those responsible for a blog associated with Ontario Public Service Employees Union (OPSEU), Local 108. The Operational Managers claim that the employer is in breach of their terms and conditions of employment, principally the Ministry policies relating to harassment and respect in the workplace. The employer disagrees, maintaining that it took proactive steps to address the managers’ concerns, and asking that the complaints be rejected in their entirety.

2In a preliminary decision dated July 20, 2011, now reported as Lee v.Ontario (Ministry of Community Safety and Correctional Services), 2011 CanLII 49517 (ON PSGB), the employer’s motion to dismiss the complaints, as untimely or for failure to make out a prima facie case for a breach of the terms and conditions of the applicants’ employment, was dismissed. This decision deals with the merits of the individual complaint of Jim Allen, and a group complaint signed by 16 Operational Managers, Mike Lee, Bob Tuff, Kim Wright, Greg Dyson, Tim McFadden, Steve Jurkus, Lori St. Pierre, Mike O’Donnell, Chris Schuts, Dean Malloy, Lisa O’Brien, Mark Drakos, Jeanine Genest, Dean Dunne, John McCoubrey and Paul Lipke.

Factual/procedural context

3In grievances dated March 4 and 5 2010, respectively, addressed to the Deputy Minister at the time, Mr. Allen and the group of 16 Operational Managers working at EMDC submitted nearly identical complaints claiming the following:

• that the employer continues to fail to provide a workplace that is free from harassment and discrimination, creating a poisoned work environment.

• that the highly inappropriate features and comments posted on the O.P.S.E.U., Local 108 Blog are offensive, demeaning, defaming to managers, and are in violation of the Ministry’s Statement of Ethical Principles, The Workplace Discrimination and Harassment Policy [WDHP] and the Occupational Health and Safety Act.

• that the O.P.S.E.U. Local 108 Blog is within the public realm and these inappropriate, disturbing, demeaning, defaming and offensive comments and features can be viewed and read by people around the world including family, friends and associates.

• that this is a continuance of other incidents of personal and psychological harassment that have occurred within the managers’ place of employment.

Remedies sought by either Mr. Allen or the group of managers included a formal investigation in respect of the blog, compensating time for health and wellness, reclassification upwards, shut-down of the blog in any form, as well as appropriate action against Local 108’s executive in regards to zero tolerance of harassment and discrimination, with written apologies from the employer and the local union to all managers involved. During the course of the proceedings, requests for remedies against OPSEU, and its local, neither of whom were parties to this proceeding, were withdrawn. As well, the request for reclassification was dropped.

4The discontent reflected in the complaint followed a period which was experienced by the Operational Managers as particularly difficult, during which Correctional Officers, who are supervised by the Operational Managers, engaged in various forms of organized efforts to make their collective strength felt. Against this backdrop, the appearance of the blog seems to have been the proverbial “last straw”. A letter dated May 3, 2009, to Superintendent Neil Neville from a large number of the Operational Managers, had earlier described what they viewed as an unacceptable working climate at the EMDC over the previous year. In most relevant part, the letter stated the following:

During the 2008 year, the final year of the local contractual agreement, the union was constantly testing the waters to let it be known that they would not accept anything less than what they felt they were entitled to. We at E.M.D.C. endured union sit-ins where the union just refused to return to their work posts until they were heard, harassment of 0M16’s and Deputy Superintendents in the form of graffiti, verbal abuse as well as false accusations of behaviour, and continued bullying tactics by some of the union members on operational managers. Frivolous work refusals under the guise of the occupational health and safety act were and still are a continuous battle. There was even a psychic information source handout that was posted in the staff sign-in room that indicated that an operational manager would be seriously injured or die during a strike if it came to that.

These issues we had to endure, however with the signing of the local agreement we felt that the worst was behind us, and everyone would get back to the job we were all hired to do. “Not So”.

On to Chapter two.

When the government decided to rescind the local union’s option of accumulating compensating time for overtime worked, the union having been so successful in their past abusive tactics of managers began again.

The union at E.M.D.C. decided to commence a work slow down to better emphasize their cause. They state that the reason for the slow down is due to overcrowding and as they were following the standing orders they are now working more safely. On numerous occasions during discussion with union members it has been proven that if the compensating time option were reinstated then the slow downs would cease. This therefore is really not a safety issue but a greed issue.

The letter went on to detail the effects of the above on the Operational Managers, who as the front-line managers, are very close to the situation. These included a general decline in morale, leading to decreased desire to attend work for regular shifts, let alone work overtime. This was attributed in the letter to ongoing stress, and concerns for their health and safety under the continuing difficult working conditions. Further effects, including medical concerns, and impact on families of the managers were mentioned. The latter included frequent alteration to their schedules to accommodate staffing needs, with minimal notice, and little opportunity for time off for the managers to spend with their families. Other correspondence to the superintendent on the subject of the stress and declining morale among the Operational Manager group suggested hiring more unclassified Operational Managers to provide relief to the over-taxed managers.

5An earlier event which was part of the picture leading up to these complaints was an attempt by members of the local union to oust Mr. McFadden from his position as management co-chair of the joint Occupational Health and Safety Committee, in February 16, 2009, questioning his competency for the position. In his testimony, Superintendent Neville referred to this in terms which persuade me he considered this an attempt to remove Mr. McFadden precisely because he was very effective in his role, due to his extensive knowledge base. The superintendent had conversations with the union leadership and the effort to remove Mr. McFadden came to naught.

6The earliest date in evidence of awareness of the blog by any of the complainants is August 2009. Much else about the blog is not in evidence before me, including when it first went up, how close its association with the local or provincial union was, who was actually controlling it, and the true identities of the authors of the entries complained of. As well, details such as how long certain material was in the public domain or available on the blog but password protected, or the mechanics of the eventual password protection, are not in evidence. However, facts which were referred to by witnesses from both sides, or were undisputed, form a sufficient basis for this decision. Most basically, it was common ground that there was material derogatory to managers available on the web during significant periods when the blog was not password protected. Once password protected, it was also undisputed that managers were not intended to have access.

7The format of the blog was one that is now familiar to millions of users of the internet. It was found on a website with writing or pictures posted to the blog, followed by a section for comments in response to the posts. Authors of the material are identified sometimes by names of individuals known to the workplace, others signing as “Anonymous” or nicknames or pseudonyms adopted for the internet, including one using the name of a character from a TV show about the mafia. On some pages of the blog there was a title “opseulocal108” and the names of the local union executive. Many of the posts referred to in evidence consisted of information and opinions about labour relations and working conditions at EMDC. Not surprisingly for a union website, many of them expressed disagreement with positions and actions taken by management. Several of the areas of concern to the blog writers are those identified in the May, 2009 letter from the Operational Managers to the superintendent, such as changes in entitlement to the use of compensating time, issues of safety and over-crowding. The blog also carried announcements, giving straightforward information about upcoming union events, or hearing dates for grievances. Some of the material mentions arbitration decisions, including one about firing being justifiable for hurtful blogging. Other posts include legislative material, such as sections of The Occupational Health and Safety Act, followed by comments which incorporated accusations of incompetence aimed at the Operational Managers and their superiors, as well as material reasonably viewed, especially against recent experiences in the workplace, as thinly veiled invitations to engage in slow-downs under the guise of safety concerns. Some are re-publications of portions of lists made public pursuant to The Public Sector Salary Disclosure Act for those making over $100,000, widely referred to as “the sunshine list”, naming one of the Operational Managers who worked a considerable amount of overtime, and three others from EMDC.

8The more objectionable posts in evidence allege managerial corruption or negligence, such as never seeing inmates or having “screwed up” the previous attendance management program. Others insult managers in general, using terms such as useless, pathetic, vindictive, morons and misfits. Cartoons and comments referred to attendance management procedures and imposition of discipline as “kangaroo courts”. Suspensions for excessive use of force were referred to as attacks on people just trying to do their best, and it was suggested that the safety of the staff was never a concern. Mocking allusions to acquiescing to being strip searched were used to describe those in the union accused of lacking courage to take action against policies the blogger did not like. Staff who took acting assignments and worked overtime were criticized as siding with management, and managers who work significant amounts of overtime accused of having social problems. Pay for performance was characterized as bonuses for screwing up, and it was suggested that the superintendent and deputies would get a higher percentage of pay for performance the more short-staffed the institution was.

9By September, 2009, senior management was engaged in discussions about the offensive parts of the blog with the union, both locally and at the provincial level. Marg Welch, Western Regional Director, was in regular touch with representatives of the union serving on the Ministry Employee Relations Committee (MERC). Superintendent Neville testified he had been assured that the blog had gone down near the beginning of October. He verbally informed Mr. Allen of this, who responded in writing that this did not resolve or address his complaints in regards to the comments “that were posted for an extended period of time on the Blog Website for the world to read”, nor the policy violations of which he had complained in his earlier correspondence. At this point in time, Mr. Neville was in consultation with his superiors, including Ms. Welch, and David Hatt, her Deputy Regional Director, as well as the Organizational Effectiveness Division (OED) which has a mandate related to prevention of harassment and discrimination. The issue was being considered at higher levels than the institution because it was not the only active blog in the province, and it engaged many issues on a wider level than EMDC. Mr. Neville kept Mr. Allen advised verbally of the fact that consultations were still going on. He testified that he did not reply in writing, because there was as yet no decision on the request that Mr. Allen had made for a thorough investigation by a trained investigator.

10On November 9, 2009, Mr. Neville was informed that the blog was back up after a change in the Local Executive. Further discussions among senior managers and the union ensued, which resulted in a joint memo from Mr. Neville and the OPSEU Local President, dated January 20, 2010, entitled “Respectful Workplace Environment”, addressed to all staff, which reminded them of the Statement of Ethical Principles and WDHP policies, and stated that incidents of harassment and discrimination would not be tolerated by either the administration or the local union. It did not mention the blog or other specific incidents, as there were a lot of things going on, including graffiti, which had been brought to Superintendent Neville’s attention.

11The complainants asked to give evidence about graffiti, to which employer counsel objected, as it had not been mentioned in the complaint. I received the evidence as relevant background to the impact on the Operational Managers. Evidence in this respect related to vulgar, derogatory graffiti in the washroom and on a manager’s office door. Some of this related to graffiti by someone, as Mr. Neville put it, who liked to draw penises in various places in the institution, which had been going on long before his arrival at EMDC in 2008. One of these appeared on the door of Mr. Drakos’ office in September 2009, about which he wrote an occurrence report. Mr. Neville said that he believed OED and the Security Officer had attempted to ascertain who was responsible for it, but had not been successful in ascertaining whether it was a bargaining unit employee. Although the graffiti was scratched off by a Deputy Superintendent, the door was never repainted, so the marks still serve as a daily reminder to Mr. Drakos of disrespect from Correctional Officers, the group he believes was responsible for it. Other graffiti cartooned Messrs. McCoubrey and McFadden in a vulgar way.

12In early February, blog posts targeted Mr. Neville personally, for what appears to be certain bloggers’ opinion that the superintendent had an overly deferential relationship to Ms. Welch, his Regional Director. This was expressed through allusions to his driving her rickshaw and a photo of Ms. Welch rather than Superintendent Neville over a caption “EMDC Superintendent”. Others accused management of bad faith, alleging Mr. Neville had gone back on promises made in the local ERC meeting concerning contentious scheduling issues of the day, such as filling of temporary vacancies and balancing of hours. Mr. Neville said information had been confused, so that after that, the committee used live computer minutes. He turned to Ms. Welch, also named in blog posts in an uncomplimentary light, for assistance in regard to the posts about himself.

13Mr. Allen continued to press Mr. Neville for a written response, which he provided on February 24, 2010, advising that the institution had no control over the blog content, and expressing his view that the material provided did not warrant any further investigation. He advised that if the blog content did violate Ministry or OPS policy, he would take action as necessary. He said that by this time, the attacks had become personal to himself, making it his fight, which he had dealt with by escalating the matter to the Regional Director, from where it went to the level of the Assistant Deputy Minister, Steven Small.

14Mr. Neville and Ms. Welch described the wider context in the institution at the time, a period of time marked by stress for the correctional system in general and EMDC in particular. This included the aftermath of negotiations which had resulted in unpopular changes concerning sick leave and absenteeism management. There were stoppages of court wagons by staff, as a result of which both Mr. Neville and Ms. Welch were required to appear in front of magistrates and Justices of the Peace to explain why prisoners were not getting to Court on time. There had been recent suspensions for excessive use of force which had caused upset among some Correctional Officers. Interviews with staff were ongoing. As well efforts to change the schedule to reduce the amount of overtime, which was putting the institution significantly over budget, had not gone over well with many members of the bargaining unit.

15On February 22, 2010 the Operational Managers met with Steven Small, Assistant Deputy Minister, who said that the blog had gone "underground", which was understood to mean that it was now password-protected. Mr. Allen’s testimony that he also promised a restoration team for the institution, which was not provided, was not contradicted. There was no evidence about what sort of restoration team Mr. Small had referred to, but in context it appears Mr. Allen received the impression he was intending to send in people with expertise in improving workplaces affected by harassment issues.

16Mr. Small’s February visit to EMDC also involved a meeting with representatives of the union. Mr. Neville described Mr. Small’s role in meeting with the union as assisting with labour relations, in an effort to restore the workplace after what he referred to as a “very interesting year at EMDC”. A few days later, Mr. Small issued a memo dated February 26, 2010 to the local executive and the “Blog Writers” expressing his “grave concerns” regarding the offensive material in the public realm and its potential violation of workplace policies. He mentioned its contribution to a poisoned work environment, and stated that it was wholly inconsistent with the standard of behaviour mandated and expected of Peace Officers, which Correctional Officers are considered to be. He characterized his memo as an “extraordinary step” as a means of underlining his personal indignation that the behaviours were still continuing after repeated requests to have them cease. He assured the recipients that the employer would not tolerate any further violation of the Statement of Ethical Principles or the WDHP policy via the Local 108 Blog, and would consider serious actions against any individual involved, if the highly inappropriate comments were not immediately removed, or if similar material was posted in the future.

17The complainants allege that Mr. Small’s letter was ignored and that the blog continued with negative content accessible at least to a large proportion of the employees working in the institution and likely beyond, continuing to poison their work environment. Even if password protected, the complainants point out that the objectionable material was available to union members and could be shared with managers who were friends or family members of people with password. As well, comments from the blog were repeated in the workplace, so it was not necessary to access the blog to be aware of the comments and be affected by them. There is no evidence that, after Mr. Small’s letter, any further action was taken about the non-password protected period.

18As to why there was no formal investigation, Mr. Neville said it was a joint decision with his superiors. Ms. Welch, at the time of her evidence, Assistant Deputy Minister of Community Services and Operational Support, testified that there are a variety of forms of investigation and fact-finding used in the Ministry, as considered appropriate to the circumstances, and that a formal investigation is not always necessary. In this case, much of the content of the blog was known, unlike many cases requiring a formal investigation where facts have to be verified.

19Senior management was aware that the blog content had deteriorated over the course of the period when it was not password protected. Ms. Welch made it clear that management took a very different and more serious view of the personal attacks which followed earlier expressions of displeasure about contentious issues from collective bargaining. She said that if the blog had not gone password protected, further consultation and decisions would have been taken, as in any case of conduct unbecoming a peace officer, which management clearly considered the more offensive remarks to be. Both Ms. Welch and Mr. Neville indicated that the considerations in 2009 and 2010 were focussed on correcting the offending behaviour, as the ultimate goal of progressive discipline.

20As to why there was no formal discipline, the evidence is clear that the decision was taken in consultation with all the appropriate sources, and for many reasons, despite frustration with the amount of time it took for the union to take action to bring down the blog, it was decided to leave it when the blog became password protected, which diminished the ability of the employer to influence the content. Mr. Neville emphasized that with corrective discipline, it is usual to start with a letter, which is what he had done, jointly with the union.

21As to any thought being given to the impact on the Operational Managers, Ms. Welch indicated there were discussions at meetings at several levels, including at the institution with the Operational Managers. She noted that many bargaining unit staff were also upset about the content.

22At some point, the blog went password protected, and the pages bore a statement that it was for OPSEU members only, a “management-free” zone. Mr. Neville thought this had happened shortly after Mr. Small’s letter of February 26, 2010, and this was the most specific evidence on the point. Mr. Allen said he had no idea when it became password protected. In these circumstances, I am unable to make a firm finding about how long the blog was in the public domain, beyond what appeared to be common ground among the witnesses that it was not password protected before Mr. Small’s letter. Ms. Welch, who was in very regular contact with her MERC counterpart about this and other issues, said the Local 108 blog was one of several around the province, and was one of the last to go password protected.

23Several of the complainants gave evidence about the effects of the situation on their working and personal lives. I accept their evidence, which was uncontradicted. A number of the managers felt personally slandered by indirect allusions as well as names linked to later derogatory comments. Several experienced declining morale and/or health problems, which the complainants handled in their own individual ways. These included working less overtime, losing desire to seek higher rank or to come to work at all. Others found it very difficult to work in an environment where staff were not respecting them as people or managers, and felt that even if a person is not specifically named, the derogatory comments affect everyone in management.

24The repetition of the disrespectful sentiments magnified them in the institution, affecting the level of trust in the workplace. Others found that the comments on the blog created a very unhealthy work environment, mentioning other contributing factors such as workplace culture, lack of leadership, understaffing and overcrowding.

25One mentioned the poor “culture of our business” in which managers become the enemy and staff may disregard their authority. In this context, it was felt that the blog represented the high point of bullying and abuse of the Operational Managers’ group, which they still feel has not been remedied.

Excerpts - Policy

26Relevant excerpts from policy relied on include the Statement of Ethical principles which outlines expectations of all employees such as:

Fulfil our responsibility to colleagues by fostering and maintaining working relationships based on mutual respect, dignity and cooperation.

Contribute to sustaining an environment which is fair, equitable and free from all forms of discrimination and harassment.

Promote the principles and support the practices of achieving a safe and healthy work environment.

The WDHP (Workplace Discrimination and Harassment Policy Prevention) policy provides in most relevant part:

This policy supports:

• a positive and respectful workplace that is free from discrimination and harassment based on the Ontario Human Rights Code (the Code).

• preventing, identifying and correcting actions of one employee toward another that, left unchecked, would result in employment-related discrimination or harassment.

PRINCIPLES

The OPS, as an employer, is committed to:

• zero tolerance of discrimination and harassment

• proactive, prevention-oriented and cost-effective practices

• alternate dispute resolution processes, and

• resolution of discrimination and harassment, as soon as possible, and in a way that least disrupts ongoing working relationships.

All aspects of workplace discrimination and harassment prevention processes will be fair, responsive, timely, confidential, professional, impartial, consistently applied, and will aim to preserve the dignity, self-respect and rights of all parties.

Responses to discrimination and harassment will aim to correct identified problems and to prevent repeated violations of this policy.

MANDATORY REQUIREMENTS

Prevention, communication and education

• Employees must not be subjected to offensive remarks, behaviour or surroundings (based on the prohibited grounds) that create intimidating or humiliating working conditions…

Time Frames

While every effort must be made to comply with the following time frames, failure to do so does not void the process.

• Unless the situation warrants management’s immediate referral for formal alternate dispute resolution or investigation, managers must attempt to resolve complaints themselves within 30 days of becoming aware of a WDHP-related issue (in consultation with others as necessary).

Penalties

• Employees found to have violated this policy will receive penalties, if appropriate (depending on the circumstances of each case), up to and including dismissal.

All Employees

All employees are responsible for:

• Refraining from discrimination and harassment, including offensive remarks or other actions that create intimidating, hostile or humiliating working conditions based on the prohibited grounds of this policy.

• Adhering to this policy and related ministry processes.

DEFINITIONS

Harassment:

A course of vexatious comment or conduct (based on one or more of the prohibited grounds under the Code), that is known or ought reasonably to be known to be unwelcome. Where a single such event appears to create a poisoned work environment, it is also considered a violation of this policy and the Code.

Poisoned work environment:

An infringement of every person’s right to equal treatment with respect to employment which refers to comments, behaviour or work environment that ridicules, belittles or degrades people or groups identified by one or more prohibited grounds of this policy. A Poisoned work environment could result from a serious and single event, remark or action and need not be directed at a particular individual.

Workplace restoration:

Promoting and/or restoring positive and respectful workplace relationships.

Zero tolerance:

The OPS will not tolerate discrimination or harassment and will respond quickly and appropriately to such allegations. Zero tolerance means that the OPS will take all necessary steps to make the workplace free of discrimination and harassment.

Submissions and Conclusions

27The Operational Managers submit that many of the comments in the blog were a form of harassment, as it was a course of vexatious comment which was known or reasonably ought to be known to be unwelcome. It is their position that the bloggers were in breach of policy including the WDHP, and the Ministry’s Statement of Ethical Principles. The complainants maintain that the derogatory comments on the blog created a hostile and unwelcoming work environment, with effects such as stress and wide ranging health issues. In not doing more to hold the bloggers accountable and remedy the damage done, senior management is also in breach of policy, in their view. Mr. Allen emphasized that the WDHP policy is a mandatory one, with consequences, time frames, and mechanisms for measurement and review, which, in his view, were not followed.

28Mr. Allen stressed that the Operational Managers are a unique group, and submitted that their complaints have been belittled and ignored for too long. He analogized to bullying, spousal abuse and racialized groups who have stood up for themselves, and said that there comes a time when enough is enough. Noting that the legal system recognizes hate crimes, insubordination and harassment as just cause for dismissal, he submitted that, in taking insufficient action about the blog and its disrespect for managers, the employer has failed to protect those at the front line who try to enforce policy.

29Mr. Allen stressed that employees can be disciplined for actions in cyberspace, up to and including dismissal where it affects the legitimate interests of the employer. In support of the complaints’ arguments Mr. Allen referred to the following case law: Bhoopaul v. The Law Society of Upper Canada 2011 ONLSHP 35 Can LII (Law Society Hearing Panel). This case involved an applicant for a license as a paralegal who was found to be “not of good character” and therefore ineligible for that license, on grounds which included her maintenance of blogs containing unfounded allegations against individuals and institutions, including the Law Society itself, as well as racist and threatening statements. As well, the decision in Nice and Canadian Union of Public Employees, Local 5082 v. Shannex RCL Limited 2012 Can LII 12647(NBLEB) upheld a discharge for conduct which was found to have created a poisoned work atmosphere involving derogatory gossip, name-calling and bullying.

30The complainants also refer to extracts from a paper entitled “Labour and Employment Law: When Employee Information Becomes Employer Information” associated with a continuing legal education seminar given by the Legal Services Branch of the Ministry of Government Services. This paper is cited for the proposition that employees can be seriously disciplined for insolence and/or insubordination for their actions in cyberspace where they affect the legitimate business interests of the employer. One of the cases cited therein, Government of Alberta and Alberta Union of Provincial Employees, [2008] A.G. A. A. No. 20 (later quashed on unrelated procedural grounds) involved the sustaining of a termination of a public servant on the basis that her personal blog, containing insulting comments about co-workers and supervisors, irreparably undermined the employment relationship. In upholding the discharge, the arbitrator found that her postings about identifiable co-workers were malicious, insulting, public attacks. Given that she was unapologetic and defiant, demonstrating minimal awareness of the hurt caused others, the decision was that there were not sufficient grounds to relieve against her dismissal. Similarly, in Chatham -Kent (Municipality) and C.A.W.-Canada, Loc. 127 (Clarke) (Re) CAW Canada, Local 127, (2007) 159 L.A.C. (4th) 321 (Williamson) a discharge was upheld where a grievor breached a confidentiality agreement by disclosing resident information and pictures from the home for the aged where she worked. The grievor was found to have undermined management’s authority by identifying two managers by name or initials and criticizing a particular decision, claiming to have been blackmailed or threatened by management, and using profanity and other derogatory remarks about management and its workplace.

31Mr. Allen said that the Operational Managers spent many hours subject to the hate-filled defamatory remarks from OPSEU, stressing that the union and bloggers were told to cease and desist, and they did not. He submitted that the Operational Managers had proven that systemic harassment exists against them at EMDC, and that militant Correctional Officers had used the internet to deliver hate, slander, and defamation to demoralize Operational Managers. He alleged that the employer half heartedly told them to stop and when they did not, the employer ignored their own warnings and policies, thus condoning Local 108's actions and becoming a party to them. As the employer could have imposed discipline at any time, its failure to do so allowed the blog to exist, in his view.

32Further, Mr. Allen submits that it is a requirement of the WDHP policy to bring in restoration teams, as the employer promised, but failed to do. Mr. Allen was no longer seeking a remedial order in that respect, but said that if the employer wished to do so, it would be appreciated, as there had been no attempt to heal the wounds in the relationship, or to restore honour and dignity to the group of Operational Managers who had been subject to the abuse from the bloggers. Mr. Allen emphasized the importance of accountability, and said someone has to be accountable for the defamatory statements, especially given the ease of using websites to publish and damage reputations. He encouraged this Board to speak out against harassment and discrimination.

33For his part, Mr. Jurkus acknowledged that there is new territory involved here, and noted that the Ministry has a history as leader in staff relations. He expressed his belief that the degradation and defamation of managers is still going on, even if the blog is password protected. Stressing that the Operational Managers are on the front line on what has become an adversarial battle ground, he asserted that the bloggers were allowed to attack any staff on-line. He submitted that the group of complainants is seeking the policies needed for protection of all managers, including those above the Operational Managers, who are less likely to protect themselves. He concluded saying that if the managers are not respected, they cannot lead effectively.

34Turning to the argument on behalf of the employer, counsel maintained that all of the grievances should be dismissed, as no breach of the managers’ terms and conditions of employment have been proven. It is the employer’s position that, although management did not pursue a disciplinary response to the blog, it did take appropriate action. Very senior levels of management were involved in discussions with the union, writing to the executive, and dialoguing with union representatives. It is the employer’s position that it did not foster a poisoned workplace, and that although the blog occasioned stress and hurt feelings, the facts do not call for any further remedy under the WDHP policy or otherwise. Counsel emphasizes that, since March 2010, the blog is no longer in the public domain, as it is password protected, because of management action. From the employer’s perspective, its action had the effect it desired; the blog was removed from the public domain. Counsel underlines that the only issue before this Board is in respect of Operational Managers, submitting that it is not a proper role of the Board to police the relationship between OPSEU and the employer, despite the fact that it factors into the situation at issue. In the employer’s view, its response was appropriate, reasonable and consistent with the applicable policies.

35Counsel argues that the evidence establishes that the employer always worked to have a positive work environment for all, including managers. She also emphasized that the issue of the blog arose and continued during a difficult time for the institution, when there were numerous serious issues going on in the same time period. It is the employer’s position that, although the work environment may not have been pristine, the situation does not meet the test for discrimination and harassment. Counsel highlighted the complexity of the relationship and negotiations between the employer and its largest bargaining agent, which had to be balanced with the interests and feelings of the managers. Counsel notes that both employer witnesses acknowledged that it was a frustrating situation, but submits that the complainants’ contention that nothing was done is not a fair characterization of the employer’s response.

36Addressing the blog itself, counsel submits that it was created and controlled exclusively by OPSEU, such that the content was their responsibility. The employer had no direct access to the material and had nothing to do with posting any material. Moreover, there were evidentiary issues as to the true identity of those posting to the blog including whether they were all employees. Counsel notes that in the facts of the precedents submitted by the complainants in their argument, there did not appear to be any similar issue, as in cases like Government of Alberta, Chatham-Kent and Shannex, cited above, it was clear who was responsible for the objectionable blogging. The employer’s position is that most of the clearly inappropriate material is nonetheless not a case of direct slander against any particular complainant. Moreover, the blog was up and down a lot, such that senior management did not always know when it was up and when it was not.

37Looking at the case law, counsel observes that it is important whether the material is in the public domain, that it is accepted that the public nature of the blogs or other internet material is what is of concern in these cases. Once the blog was password protected, counsel notes that there is no evidence that the employer had any knowledge of its content, so that this is not a case where ongoing issues were being brought to the attention of the employer and being ignored.

38Turning to the employer’s right to discipline, counsel concedes that the employer could have taken that route, including for off-duty conduct. Nonetheless, it is the employer’s position that this should not be a case about why discipline was not the route chosen; that is an issue not within the jurisdiction of this board. Further, it is not for one group of managers to dictate how those with delegated authority exercise the right to discipline or not. Counsel refers to the evidence about the numerous factors going into the decisions about how to respond to the blog and the fact that there is no rule book requiring a mechanical response to such behaviour.

39The employer referred to the decision of a Board of Arbitration in Canadian Union of Public Employees v. Office and Professional Employees’ Union, Local 491., (1982) 1982 CanLII 4831 (ON LA), 4 L.A.C. (3d) 385 (Swinton). This involved issues of alleged sexual harassment by one employee against another, and a request by the grievor that the other employee be disciplined. The decision canvasses relevant arbitral decisions, and concludes that, in the absence of a breach of a specific provision of the collective agreement, the decision on whether or not to discipline or how to control employees, including decisions on the severity of disciplinary action, is one best left to management. Central to the union’s case was the argument that the employer had a duty to investigate and to rule on a complaint of sexual harassment, and then take action against the harasser if the complaint was well-founded. The Board reviewed case law relating to whether employers had taken reasonable action to stop harassment. In doing so, the Board found that crude, insensitive remarks or general “negativism” or critical attitude, even though between a male supervisor and a female employee, did not necessarily amount to sexual harassment. The Board found that an employer who knows or reasonably ought to have known about harassment is required to take corrective action, but that the employer is not responsible for a pristine working environment, and acknowledged that the prevention of recurrence of harassment is an appropriate goal.

40Counsel underlines that, although senior management decided not to impose discipline, they certainly did respond. Different action could have been taken, but what they did was reasonable and appropriate in the circumstances, in the context of labour relations with corporate OPSEU as well as in regards to the institution, in counsel’s submission. More fundamentally, it is the employer’s submission that it should not be this Board’s role to second-guess that reasonable response, taken in the spirit of progressive discipline whose underlying rationale is to correct behaviour, rather than imposing discipline in a punitive way or just because one can. Moreover, the complainants have not identified anything that the employer could have done that they failed to do, other than discipline individuals or send in restoration teams.

41The evidence is also clear that there was a response from OPSEU following management’s raising of concerns with them, and that more senior OPSEU officials called for the blog to be removed or conducted in a manner that would not risk accusations of calls for illegal job action or targeting of individuals. It is the employer’s position that it would not have served anyone's interest to fire everyone affiliated with the blog, that a careful measured approach with advice from all the right sources was the wiser way to proceed. It was based on an approach anchored in creating and maintaining positive relationships, and correcting the behaviour of those involved with the offensive content. Employer counsel argues it was an appropriate response, evidenced by password protection afterward.

42As to the complainants’ position that the past harm was not remedied, counsel submitted that the standard is one of reasonable balancing of interests, rather than perfection. Ms. Welch’s evidence was clear that she took the concerns of the Operational Managers very seriously. Counsel invites a finding that senior management did what they could in their power to find a mutually acceptable solution to a serious issue for the Ministry and the institution.

43As to the complainants’ assertions that the bloggers violated the WDHP policy, and were engaged in the dissemination of hate towards managers, counsel underlines that the facts of this case arose under the former policy, as it was worded prior to the passage of Bill 168, An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace, which inserted obligations as to “workplace harassment”, a term whose definition is not limited to grounds set out in the Human Rights Code. At the relevant time, the policy’s definition of poisoned work environment was based on enumerated grounds of the type set out in the Code. There is no allegation of such grounds in this case, so that there would not have been a finding of a breach of the policy as it was drafted then. Further, addressing the timelines under the policy: even if it is considered to cover the conduct in question under the sections referring to non-policy incidents, it is the employer’s position that the policy, in which there is no mandatory procedure or time line, was not breached.

44Referring to the manager's guide relied on by the complainants, counsel stresses the variety of approaches outlined there, and that an investigation does not have to include the appointment of a formal investigator, as requested and preferred by Mr. Allen. The employer reviewed all the options, as it was entitled to do, and investigated it in a way that was a reasonable response to the specific circumstances, in counsel’s submission. It consulted with all the appropriate sources, including the Organizational Effectiveness Division, the group within the Ministry focussed on WDHP issues, also part of adhering to policy. In sum, counsel asks the Board to find that there was no breach, even though the Operational Managers wanted a different outcome.

45Although the employer does not concede there was a breach of the terms and conditions of the complainants’ employment, counsel argues in the alternative, that if a breach is found, no damages should be awarded. As to the impact on individual grievors, counsel submits that having been immersed in a stressful situation at work is not the test for damages. Further, acknowledging the likelihood of a finding that the blog had an impact on the workplace and the complainants, the employer does not concede the nature of the impact. Counsel submits that it is important not to dramatize the content, which was not remotely close to hate speech. Although Mr. Allen drew such analogies, counsel underlines that the content was not racist, and contained no evidence of targeting managers from racialized groups. Counsel acknowledged the inappropriate and offensive nature of the material complained of, but did not accept the analogy made in the complainant’s closing remarks to an abusive spousal relationship as an appropriate description.

46As well, counsel notes that there is no specific evidence of ongoing issues, or that posts in the public domain continue, beyond the general evidence that some managers have spouses who have access, which is not sufficient to support employer liability or justify damages, in the employer’s view. As to the evidence from the managers about individual impact and medical issues, counsel argued that absent medical reports, this is an insufficient basis for a damage award.

47Further, it is the employer’s position that lack of desire to work overtime is not something the Board can remedy. Moreover, in counsel’s submission, the general sentiment that some do not like their job as much as before is not enough to link it to the employer’s response to the blog or lead to compensation.

48In terms of damages, employer counsel referred to a decision of the Ontario Crown Employees Grievance Settlement Board Ontario Public Service Employees Union (Sidhu) v. Ontario (Ministry of Agriculture, Food, and Rural Affairs, 2011 CanLII 17014 (ON GSB) (Herlich). The relevant issue concerned the idea that any claim for damages for pain and suffering or mental distress should be supported by medical evidence and that even if a technical breach were found, damages should be proportionate to the nature of the breach.

49In sum, although the situation was stressful and the relationship was strained at times, counsel argues there was no breach of the terms and conditions of the Operational Managers’ employment. Counsel submitted that although the employer did not doubt the complaints’ credibility, the Board should not hold the employer responsible for the inappropriate behaviour of individuals associated with the union. Counsel acknowledged that it is a difficult set of facts which were very personal to the grievors. Counsel underlined that the employer had made clear from the beginning that it appreciates the difficult job the Operational Manages do across the province and at EMDC.

Did the employer breach the terms and conditions of employment of the complainants?

50This Board is empowered to enforce the terms and conditions of the complainants’ employment, those things which make up their contract of employment with the provincial government. Although each of the complainants is technically covered by an individual contract of employment, in practice the great majority of the terms are created by policies and procedures generally applicable to the public service or their classification, OM 16. As noted, the employment terms and conditions on which the complaints rely are the employer’s policies, principally those pertaining to workplace harassment and ethical principles. It was not disputed that the policies referred to by the complainants constituted terms and conditions of the complainants’ employment. Rather, it is the employer’s position that they were not breached. If there is no breach, the Board has no legal basis on which to award a remedy to the complainants.

51Foremost among the allegations made as to breach is that the employer did not provide a harassment-free environment, and failed to remedy the poisoned workplace created by the blog.

52Before dealing with that allegation, it is appropriate to indicate what this decision will and will not be dealing with. Although the complainants used the term “defamatory” to refer to much of the material to which they object, there was no suggestion that if the Ministry had responded more strongly, they would still be liable for the remarks of the bloggers, in defamation or otherwise, and thus I have not dealt with the matter on that basis. Moreover, neither party made submissions about the elements of proof of defamation, so that I have little basis on which to make findings in that respect. I will assume for the purposes of this decision that the blog, collectively, can be considered harassment, as a course of conduct that would reasonably have been known to have been unwelcome to those targeted by the derogatory remarks found there. Nonetheless, it is worth acknowledging that the evidence is insufficient to find that any particular employee engaged in such a course of conduct. In any event, the focus of this decision is not on the behaviour of any employees responsible for the derogatory blogging; it is on the question of whether the terms and conditions of the Operational Managers’ employment were breached by senior management in dealing with the blog and individuals associated with it.

53In general, as a matter of common sense, I accept that a significant stream of disrespect coming from co-workers or those with opinions about the workplace, whether at work, in social situations, or on-line, will likely impact the workplace, often insidiously, because it is hard to measure and any particular example may be fleeting or hard to attribute to any particular author. I accept as well the testimony of the Operational Managers that the blog had a negative impact on their morale, increased the burden of an inevitably difficult and stressful job, and that it may have contributed negatively to health issues, as well as influencing decisions to decline overtime work they would otherwise have accepted. The question becomes whether the policies they cite require something further from the employer than the actions already taken.

54In respect of providing a harassment-flee workplace, it is important to acknowledge that it is not humanly possible to prevent all behaviour that amounts to harassment, defamation or disrespectful behaviour towards employees. There are very real limits to the power of an employer to anticipate and control such behaviour even in the workplace, let alone outside its physical bounds. In recognition of this reality, the law does not make the employer responsible for all actions of its employees that have a negative impact on other employees. In the area of harassment in the workplace, arbitral case law has generally found, in the absence of a contractual provision requiring it to take particular action, that an employer will not be held liable unless it has been negligent or fails to act.

55As noted by our sister tribunal, the Ontario Crown Employee’ Grievance Settlement Board, in a case of racial harassment, the Employer is liable only to the extent of its knowledge and its failure to respond appropriately. Rather than correctness or perfection, the standard is one of reasonableness. See: Ontario Public Service Employees Union (Tardiel) v. Ontario (Community Safety and Correctional Services), 2010 CanLII 81917 (ON GSB) (Albertyn) and the case law cited therein. I adopt that approach here. And it is fair to acknowledge at the outset that what is reasonable in response to any set of circumstances, especially difficult ones such as these, is a question about which reasonable people may have very different views.

56The Operational Managers argue from the statement in Mr. Small’s memo to the local union and the bloggers that "further breaches" would not be tolerated that the employer has already acknowledged that the blog does violate the policies in question, and contributes to a work environment which is poisoned. They take the position that it does not matter that the bargaining unit is the source; it remains a breach of the Operational Managers' terms and conditions of employment. As noted above, it is the Operational Managers’ position that by failing to respond decisively and hold people to account, the Ministry effectively condoned the remarks on the blog.

57There is no dispute that management had the power to pursue discipline against the OPSEU bloggers who authored the disrespectful material, should they have been identified as employees, and that it remains free to discipline in appropriate cases. It has done so, where it considered it appropriate, as in Ontario (Ministry of Community and Social Services) and O.P.S.E.U. (Aboutaeib) (Re) 213 L.A.C. (4th) 336, a case of discharge for conduct which included blogging that contravened the WDHP policy, albeit with the use of government resources, not an aspect which the evidence addresses in the case before me.

58In any event, the evidence is clear and uncontradicted that discipline was considered in the case of the Local 108 blog, along with the risks and benefits of pursuing that course. However, it was decided that general warnings, in the form of the joint letter from the Superintendent and the Local Union president, and then from the Assistant Deputy Minister, and consultations, were the wiser course in all the circumstances. Indeed, in making the expectations clear to all employees through Mr. Neville’s and Mr. Small’s letters, they laid the foundation for discipline if considered appropriate thereafter. The blog was subsequently removed from the public domain, by way of password protection. In the end, what the complainants are asking is that I find that this was not an adequate response, in that it did not sufficiently consider or remedy the effects of the blog on the Operational Managers and their morale.

59To start with the fact that the Ministry’s response did not include discipline, I do not find any basis on which I could find that individual discipline was required as part of the response to the situation posed by the blog, in general, or as part of the complainants’ terms and conditions of employment. The evidence was persuasive that the Ministry considered relevant issues and seriously reviewed their options in this respect. Whether or not, as a jurisdictional matter, I would have the power to require the Ministry to discipline other employees, I do not find that the evidence established that senior management acted unreasonably or irresponsibly in deciding against discipline in all the circumstances of this case, even for offensive posts which occurred after Mr. Small’s letter. And I do not accept that because members of senior management did not discipline any bargaining unit employees, they “did nothing”, as some of the complainants allege.

60Senior management, from the Superintendent’s Office, up to the highest ranks of the Ministry, were directly involved in consulting with the union with whom the blog was associated, meeting with employees and strategizing about the most effective approach. The Ministry’s response began quite quickly after Mr. Allen brought the matter to Mr. Neville’s attention. It was undisputed that he was in frequent communication with Mr. Allen about his complaint, even if he did not put a decision in writing, nor conclude the matter, until about 6 months later.

61In respect of the timeliness of the response, it appears that Mr. Allen’s expectations as to time lines were those contained in the provisions of the WDHP policy. However, that policy did not specifically cover his complaint at the time, and in any event the time lines are not mandatory, so that there is no specific breach of the terms of the policy. As well, as Mr. Neville explained in his testimony, the fact that new posts appeared on the blog after Mr. Allen’s complaint, and the fact that the blog was taken down and then re-emerged, complicated the issue of what the employer was responding to. Given all the circumstances of the involvement of several layers of management, targeting of others than Mr. Allen and the provincial wide implications of the issues involved, as well as the fact that Mr. Neville was in regular touch with Mr. Allen about the matter, I do not find that the employer acted arbitrarily in not giving a written response sooner.

62As to the fact that senior management chose a response characterized by labour relations strategies rather than a formal investigation, I similarly do not find that to have been unreasonable, or to have breached the terms and conditions of the Operational Managers’ employment. Indeed, the WDHP policy manager’s guide indicates that formal investigations can be very disruptive to a workplace, and should be reserved for situations where there is no other choice. I note Ms. Welch’s evidence that the ongoing investigation about allegations of excessive use of force were already doing just that.

63The basis of the complainants’ argument that they were owed a harassment free workplace and remediation of harm is found in the WDHP policy and an accompanying guide entitled Workplace Discrimination and Harassment Prevention in the OPS — a Manager’s Guide, a 2001 publication of the employer’s Management Board Secretariat. The excerpts from the WDHP policy set out above contain language indicating that the employer is committed to zero tolerance of discrimination and harassment, among other principles. Although in common parlance, the term “zero tolerance” is frequently used to refer to policies which require a specific penalty for all infractions, that is not how the term is defined in the WDHP policy. Its definition provides that the Ontario Public Service will not tolerate discrimination and harassment and will respond quickly and appropriately to such allegations. The policy does not require discipline in response to proven allegations, but provides that employees found to have violated the policy will receive penalties, if appropriate (depending on the circumstances of each case), up to and including dismissal. This explicitly involves a requirement to consider the circumstances of each case, even where there is a finding of a violation of the policy, which it will be remembered required discrimination on the basis of grounds such as race, gender or disability, none of which were present in the material complained of. Moreover, even considered more generally, outside of such grounds, there is no suggestion that anyone other than senior management is empowered to exercise the discretion as to what is appropriate in circumstances such as those of this case.

64Although the WDHP policy in effect at the time mirrors the legal framework of The Human Rights Code, it also contains a section dealing with violations which fall outside that framework. This section gives an example of employees who continually make negative public comments about the effectiveness of the work unit and says that a manager in that situation has a responsibility for effectively resolving these issues and restoring the workplace to health. This is the policy provision closest to the facts of this case. As noted above, the complainants are critical of the employer for not bringing in a restoration team or doing more to restore a better working environment after the derogatory remarks on the blog.

65Although the complainants did not in the end ask for a specific order about restoration, it is clear that a number of them feel that the policy required a specific response such as bringing in a restoration team, perhaps specialists in dealing with poisoned work environments, although this was not specified. However, the WDHP policy does not define restoration as specifically as requiring a particular kind of specialist to be dispatched to the institution, as some of the complainants were expecting. The definition of restoration is quite general: “Promoting and/or restoring positive and respectful workplace relationships.” It is very clear that senior management’s efforts at bringing the blog out of the public domain, and consulting with the union and the Operational Managers at the institution, were aimed at promoting and restoring positive and respectful relationships. The definition in the policy is broad enough to cover these efforts of senior management to bring attention to the policies and persuade the union itself to take action about the blog. Indeed, Mr. Neville described Mr. Small’s role in coming to the institution in February 2010 as an effort to restore the workplace, in response to the difficult year which preceded this complaint. In the absence of any specific policy requirement to do something other than what they did, I do not find that the employer breached the terms and conditions of the Operational Managers’ employment in respect of restoration of the workplace.

66As for the Statement of Ethical Principles, it is, by its own terms, a set of broad principles intended to guide staff in their actions and decisions, to help ensure the fair and equitable treatment of all employees. It has terms which apply to the bloggers’ behaviour as well as to managers’ responses, but it does not provide a remedy for the situation of the Operational Managers in this case either, as it does not specify how management is to react. Its prescription to act in a respectful manner towards fellow workers was surely breached by any employee who authored the disrespectful material on the blog. The behaviour of the individuals who went beyond expressing opinions about the issues of the day to engage in personal invective against individuals fell below any reasonable standard for adult behaviour anywhere, let alone the higher standard expected of peace officers, and of employees bound by the above-noted policies. However, without a specific prescribed approach in the policies referred to, one returns to the standard of reasonableness set out in the arbitral jurisprudence. I am in the end unpersuaded that senior management failed to act reasonably in addressing the difficult situation it was facing. As a result, I do not find that it breached its responsibility to the Operational Managers.

67The Occupational Health and Safety Act was mentioned in the complaints, but was not a feature of closing argument. I note that applicable provisions of that statute, such as section 25(2)(h) require the employer to take every precaution reasonable in the circumstances for the protection of a worker. Given my conclusions that the employer’s response was reasonable, I do not find a breach of such statutory obligations by the employer.

68Many of the Operational Managers remain dissatisfied with the outcome of the diplomatic endeavours pursued by senior management. To them, compared to the strong feelings and lived effects on their morale and daily work life, the efforts and letters from senior management, and the result of password protection, with the blog still available to a wide segment of the workplace population, was too little, too late. They feel that the damage had already been done, and was not repaired. As noted above, I accept the testimony of the complainants about its impact on them. Nonetheless, without a finding of a breach of their employment contract, it is beyond the Board’s power to award them a remedy for the situation.

69To summarize, I have carefully reviewed all the policies relied on, and I do not find that they were breached in the manner in which the employer handled the blog issue. Members of senior management made clear to all employees that the disrespectful portions of the blog were not to be tolerated and were instrumental in getting the blog out of the public domain. That the matter was not pursued once the blog went password protected represents an exercise of discretion that I have not been persuaded breaches the employment contracts of the Operational Managers.

70As I have found that the evidence does not establish a breach of the complainants’ terms and conditions of employment, the question of remedy does not arise. In the result, for the reasons set out above, the complaints are dismissed.