PSGB#2014-2664

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Stricko

Complainant

• and -

The Crown in Right of Ontario

(Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Reva Devins

Vice Chair

FOR THE COMPLAINANT

Jim Allen

FOR THE EMPLOYER

Cathy Phan

Treasury Board Secretariat

Legal Services Branch

Counsel

HEARING

March 15, 2017

Decision

1The only question raised by this complaint is what information a respondent, who is the subject of allegations under the Workplace Discrimination and Harassment Prevention Policy (WDHP Policy), is entitled to receive when he or she is suspended pending investigation of the allegations.

Background and Context

2On July 14, 2014 the Employer learned of allegations that the Complainant, Daniel Stricko, had engaged in two acts of sexual harassment in the workplace. Shortly after becoming aware of the allegations, the Employer suspended Mr. Stricko, with pay, pending investigation, in accordance with section 36(2) of the Public Service of Ontario Act, 2006, (PSOA). Mr. Stricko claimed that management did not tell him why he was being suspended or give him any details related to the investigation. At arbitration, the Employer stated that it had no information to confirm or deny whether Mr. Stricko was told why he was suspended; however, it was prepared to accept his contention for the purposes of argument.

3The Employer considered the available options under the WDHP Policy and determined that an internal investigation was the most appropriate way to proceed. Connie Miller conducted the investigation into the allegations; she contacted Mr. Stricko at the end of August and met with him on September 5th. Mr. Stricko acknowledged during the September meeting that he had received disclosure and responded to the allegations by submitting several documents and a detailed, six-page written rebuttal. Ms. Miller concluded her investigation and submitted a Report on September 16, 2014, in which she found that all allegations were unsubstantiated. Mr. Stricko returned to work on October 20, 2014.

4After the completion of opening arguments, Mr. Allen, Mr. Stricko’s representative, and Ms. Phan, counsel for the Employer, agreed that the issue before me was very narrow:

Is the Employer obliged to disclose the allegations under the WDHP Policy as soon as it suspends the respondent to the allegations, and does it also have to produce all relevant documents it has received at that time, on a rolling basis?

5The parties further agreed that the Employer received the following seven documents before Mr. Stricko was suspended, that these documents were not disclosed to him at the time of his suspension and that that the Occurrence Reports were not provided or considered by the internal investigator who investigated the WDHP allegations:

a. An Occurrence Report from CO Kennett on July 13, 2014;

b. Emails between Hamdi Mursal and Connie Miller, dated July 23, 2014;

c. An Occurrence Report from Brian McDougall on July 14, 2014;

d. An Occurrence Report from Marlene Lariviere on July 14, 2014;

e. An Occurrence Report from Michael Ashley on July 13, 2014;

f. An Occurrence Report from Patricia Goden on July 16, 2014;

g. An Occurrence Report from Dean Dunn on July 14, 2014.

WDHP Policy

6Mr. Stricko relied on paragraph 9.11 of the WDHP Policy to assert that he was entitled to be told the reason for his suspension, with details of the allegations against him and full disclosure of all documents the Employer relied upon as soon as he was suspended:

9.11 Respondents and complainants must have access to sufficient information about the allegations and responses of the other parties and witnesses to allow effective participation in the process.

The Parties’ Arguments

7Mr. Allen, on behalf of Mr. Stricko, argued that paragraph 9.11 of the Policy confers a right to early disclosure and that all information that has been received by the employer, including the allegations and relevant documents, should be provided to the respondent at the time of their suspension. In his submission, a respondent’s suspension is included in the “process” and paragraph 9.11 therefore requires disclosure from that time forward.

8Mr. Allen acknowledged that Mr. Stricko received adequate disclosure before he was asked to respond to the allegations, however, he argued that he suffered a great deal of stress in the weeks before learning the precise nature of the allegations against him. With respect to remedy, while Mr. Stricko was suspended with pay, Mr. Allen argued that he missed significant overtime opportunities and he asked for compensation for those losses.

9Mr. Allen confirmed that while Mr. Stricko may have other concerns about the process, he was not advancing any other arguments beyond his right under paragraph 9.11 to full disclosure of the allegations against him as soon as he was suspended. He specifically confirmed that he was not arguing that he was treated differently than any other respondent, that the Employer failed to comply with any other policy or procedure, that they did not have the right to suspend him, that PSOA gave him the right to know the reason for his suspension or that the Employer did not have the right to investigate the allegations of sexual harassment.

10The Employer took the position that it reacted swiftly and appropriately to serious allegations of sexual harassment in the workplace. The WDHP Policy was followed and all of the timelines set out in the Policy were met. Mr. Stricko was well aware of the allegations that were being investigated before he met with the internal investigator, as is evident by the detailed nature of his response and by his express acknowledgement during his interview. He came to the meeting fully prepared to respond to each allegation and had the opportunity to provide additional documents in support of his position. In the Employer’s submission, that is all that is required under paragraph 9.11 of the Policy.

11Counsel for the Employer argued that there is nothing in paragraph 9.11 of the Policy to support the Complainant’s interpretation. PSOA, the legislation that authorises the suspension of an employee pending investigation, does not confer any rights to disclosure and the WDHP Policy is silent on the issue of timing.

12The Employer also argued that even if Mr. Stricko was entitled to disclosure at the time of his suspension, the remedy he has requested does not flow from the Employer’s disclosure at a later stage of the process: there is nothing on the record that demonstrates that Mr. Stricko would have otherwise been eligible for overtime.

13Counsel for the Employer advised that she could not find any cases that have considered the entitlement to disclosure under paragraph 9.11 of the WDHP Policy issue, however, she did provide a decision from the Grievance Settlement Board, OPSEU (Press) and Ministry of Health and Long-Term Care, (October 9, 2007), GSB #2003-1461 (Mikus), that dismissed the grievor’s claim that his right to health and safety under the Collective Agreement had been violated by the employer’s failure to advise him of the reason for his suspension.

14In reply, Mr. Allen argued that the facts in the Press decision were different than the facts in this case. In Press, the grievor was aware of the allegations through the rumour mill, whereas Mr. Stricko had no knowledge whatsoever of the reason he was being suspended.

Analysis and Conclusion

15Having considered the submissions of the parties, I have determined that the Employer was not required to disclose the details of the allegations when Mr. Stricko was suspended or provide him with all of the related documents that it had received at that time. Therefore, there has been no violation of the WDHP Policy.

16In arriving at this conclusion, I accept that Mr. Stricko found it upsetting to be suspended from his employment without knowing the details of the allegations that gave rise to the investigation, even though he was still being paid. I also understand that an investigation under the WDHP Policy would be enormously stressful for everyone who is a party to the allegations. However, I am not persuaded that disclosure of either the specific allegations or the documents the Employer relied on to initiate an investigation must be disclosed at the preliminary stage of the process.

17The WDHP Policy provides a detailed outline of the obligations of management and the options available to them when they become aware of allegations that the WDHP Policy has been violated. Specific steps and timelines are set out and a general right to disclosure is provided in paragraph 9.11. However, the Policy is silent about the precise time that disclosure must be provided; it merely states that the parties are entitled to sufficient information to allow effective participation in the process. The Policy does not include an explicit right to immediate and full disclosure at the time of suspension.

18The Complainant essentially argued that the right to immediate disclosure was implicit in paragraph 9.11 of the Policy. In his view, the “process” referred to in that paragraph includes the initial suspension and, therefore, he should have received details of the allegations and full production of relevant documents at that point. Mr. Allen did not offer any cases in support of this position nor did he argue that the Policy had ever been interpreted or applied in the manner that he suggests it should operate.

19I do not agree that the Policy confers the rights claimed by Mr. Stricko. I read paragraph 9.11 as providing a general entitlement to receive information in order to permit full and meaningful participation in the resolution of allegations under the Policy. It does not grant a freestanding right to full disclosure or participation at every stage of the process, rather it confers a right to information as it relates to the affected individual’s role in the process.

20Despite very specific timelines for the completion of other mandated elements under the Policy, paragraph 9.11 is silent about the timing of disclosure. More importantly, it speaks of access to “sufficient information” to allow “effective participation” (emphasis added). This language clearly links the information that must be provided to the need for disclosure to facilitate participation in the process.

21In this case, Mr. Stricko did not actively participate in the process until he met with the investigator, several weeks after he was suspended. He had the right to receive enough information about the allegations before that meeting took place so that he could prepare his responses and participate in a meaningful way to present his version of events. However, he conceded that he was afforded that opportunity. His only complaint is that he was not provided with all of the salient details at the earliest opportunity, that is, when he was suspended. He did not argue that this prevented him from preparing for his meeting with the investigator or responding to the allegations. Nor did he identify any other way in which the timing of the disclosure impeded his ability to participate in the process.

22Mr. Stricko merely described the impact later disclosure had on him, that is, the stress he experienced from not knowing the reason for his suspension. Notwithstanding that stress, without a right to early disclosure, impact alone is not enough to establish entitlement to the information. Given the clear language found in paragraph 9.11, he must also establish how earlier disclosure was necessary in order for him to effectively participate or actively engage in the process. Mr. Stricko did not advance any evidence or argument in that regard.

23Mr. Stricko did put forward a number of related policies and procedures. Although he did not rely on any particular provision in any of these documents, my finding that there is no right to immediate disclosure of the allegations and production of documents upon suspension is consistent with all of the documents that Mr. Stricko introduced. In particular, neither section 6.3, WDHP Allegations by Employees Against Other Employees, of the Institutional Services Policy and Procedures manual nor the WDHP Information for Managers and Employees make any mention of the entitlement to early disclosure that is claimed by Mr. Stricko.

24Similarly, the Institutional Services Policy and Procedures manual regarding Employee Status during a WDHP Investigation does not provide for or refer to early disclosure. It does, however, address the potential stress that might be experienced by a respondent. Under the heading Guidelines, superintendents are instructed to ensure that counselling is available to assist employees dealing with the emotional impact of their suspension. Accordingly, the stress that Mr. Stricko experienced was contemplated and addressed by counselling services, not early disclosure.

25Press is the only case that was provided to me dealing with the issue of whether any disclosure must be provided to an employee when they are suspended pending investigation. This was a decision from the Grievance Settlement Board that involved a bargaining unit employee who was suspended pending investigation of complaints that he and others nurses abused patients. Press did not involve allegations under the WDHP Policy and it sheds no light on the interpretive issue regarding paragraph 9.11 of the Policy. However, my conclusion is consistent with the general conclusion reached by Vice Chair Mikus in that case that the employer did not violate the collective agreement when it failed to provide the grievor with the specific allegations at the preliminary stage of the investigation.

26Finally, this result is supported by the absence of such a right under PSOA. The legislation that gives the Employer the authority to suspend employees pending investigation does not itself include a right to disclosure of the details of the allegations that are the subject of the investigation. It would seem odd, and arguably unfair, that a suspension for alleged violation of the WDHP Policy would have a greater entitlement to information than suspension for alleged use of force, abuse or any other conduct that might be investigated. However, that would be the result of the position advanced by Mr. Stricko in this case.

27I also agree with the Employer’s submission that the evidence does not support the requested remedy of compensation for lost overtime. Even if Mr. Stricko had immediately been told the reason for his suspension and provided the documents he identified, it would have had no impact on his access to overtime during the period of suspension.

28Mr. Allen agreed that the investigation would not have been completed any faster or earlier if Mr. Stricko had received disclosure at an earlier stage of the proceeding. He did not argue that earlier disclosure was in any other way related to the availability of overtime. He simply argued that there was a work stoppage during the period when Mr. Stricko was suspended and that other managers were called in to replace bargaining unit staff. He suggested that Mr. Stricko could have been offered overtime, but did not challenge the exercise of management’s discretion not to call Mr. Stricko. Accordingly, I find that there is no connection or nexus between when Mr. Stricko received disclosure regarding the WDHP allegation and whether he was offered overtime while those allegations were being investigated.

29The WDHP Policy tries to balance the competing interests of many different individuals affected by the application of the Policy. It advises employees who believe that they have been victims of discrimination or harassment of their rights and obligations, it instructs witnesses to discrimination and harassment of their obligation to report and co-operate with investigations into alleged violations of the Policy, it tells managers how they should respond if allegations are brought to their attention and it also seeks to protect the rights of those who are accused of inappropriate conduct. This is not an easy balancing act and everyone in the workplace will inevitably bear some of the burdens associated with ensuring that the Ontario Public Service remains free of discrimination and harassment.

30In this case, Mr. Stricko agreed that he received disclosure before he met with the investigator and that he had the opportunity to fully respond to the allegations that pertained to him. The investigator issued a Report and found that the allegations were unsubstantiated. In my view, there is no basis to conclude that he did not have sufficient information to effectively participate in the process.

I therefore find that the Employer did not violate the WDHP Policy or any term or condition of Mr. Stricko’s employment. The complaint is dismissed.