Canadian Employment Law Today

6 | march 4, 2015 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends Worker not told of investigation outcome three weeks later she wrote an occurrence report. When the operations manager asked her if she wished to pursue the matter, Wil- liams said no. She also declined assistance from the employee assistance program (EAP) and didn't file a complaint under the ministry's workplace discrimination and harassment policy. However, management decided to in- vestigate the occurrence report because it was race-based. After an independent investigator interviewed Williams and the co-worker, it was determined in October 2010 the "common visible characteristic" Williams shared with the other correc- tional officer with whom she was mistaken was being black. is brought it under the policy, and the co-worker was found to have violated the policy. e co-worker was sub- jected to corrective action, but Williams wasn't informed of the outcome of the in- vestigation. Williams worked for more than a year after her occurrence report and testified it continued to be a poisoned work environ- ment which caused her to feel "exhausted and disheartened" when the ministry seem- ingly failed to respond to her concerns. ough she hadn't initially wanted the min- istry to pursue the matter, once the investi- gation was launched she was interested in the outcome. e policy specified that ap- propriate remedies were to be decided upon within 30 days of the completion of the in- vestigation. Employee felt unsafe at work On Nov. 9, 2010, Williams gave written no- tice to her supervisor that she intended to leave the workplace because she felt unsafe, under a safe departure protocol the minis- try had which was in place to accommodate employees who experienced severe emo- tional shock in the workplace. She said she felt unsafe because of short staffing in her area and the ongoing concern with the hate letters and she would return to work when the staffing level returned to the required amount. e protocol was triggered by an employee providing written notice of the re- quest and ended when it was reasonable to conclude the employee could safely return to work. After discussing the matter with Wil- liams, the ministry found that short staff- ing wasn't a sufficient reason to invoke the safe departure protocol. On Dec. 22, after six weeks of leave, Williams was ordered to return to work or be considered absent without leave. On March 8, 2011, Williams and another officer noticed a faint swastika on a wall at the detention centre, which reminded Wil- liams of another incident years earlier when someone had written "KKK" on a wall. She photographed the swastika and both offi- cers reported it. Shortly after the report, the swastika was painted over and all staff on the floor were required to submit occurrence reports. It also installed a camera in the area. Williams didn't hear anything further, but 18 months later, in September 2012, the ministry and the union issued a joint memorandum con- demning graffiti. On April 29, 2011, Williams was leaving the detention centre at the end of the shift, but the officer responsible for entrance and exits was booking inmate visits and profes- sional visitors. Williams felt the officer de- liberately made her wait and asked him if he was unable to multitask. She also claimed he had made racist remarks in the past. e officer asked her angrily if she was accusing him of racism, but Williams said she wasn't talking to him. e officer filed a complaint and Williams wrote an occurrence report, but the ministry didn't investigate. Nearly three years later, in February 2014, Williams was delivering meal carts because the locked slider doors weren't working properly and it would be a security risk for inmates to deliver them. When she ex- plained to the security manager why she was delivering the meals, he told her the doors had been repaired and Williams asked "What if it fails again?" He replied by asking "What if you win the lottery and don't have to work anymore?" Williams felt the security manager used a "flippant, racist tone" that implied she was lazy and stupid. She reported the exchange but an advisor on the discrimination and harassment policy determined the incident did not constitute harassment. A month later, Williams filed another oc- currence report saying a sergeant gave in- struction to her in a demeaning way with a raised voice and gestures in front of others. She said the sergeant used a racist tone, but the sergeant explained she hadn't followed instructions and he spoke loudly because of surrounding noise. e ministry took no ac- tion. series of incidents led to grievance and human rights complaint Williams filed a grievance under the col- lective agreement and a complaint with the Ontario Human Rights Tribunal claiming all the incidents were discrimination and harassment and the ministry failed to inves- tigate or respond appropriately, causing her harm. She sought damages of $100,000. e grievance settlement board ad- dressed the issues in both the grievance and the human rights complaint. It found the ministry investigated the July 2010 incident with the co-worker mistaking her for a male colleague, but it failed to respond and no- tify her of the outcome in a timely manner. e delay caused some injury to Williams' dignity and feelings of self-respect, to which she was entitled to $3,500 in damages. e board also found Williams followed the proper procedure for the safe departure protocol, so the leave could not be refused. Even if the employer disagreed with the reason or felt the employee could safely re- turn to work, it should first meet with the employee and the union to discuss rather than unilaterally ending the leave, said the board. With this clarification, the board de- termined no further relief was necessary. e board found the swastika graffiti was not directed at Williams personally and there was no obligation to deal with any ef- fects on her under the discrimination and harassment policy. If she needed support, she was free to say so to the ministry, said the board. e board found the ministry was obliged to investigate the April 2011 incident with the officer at the door who made Williams wait, as both officers filed reports, there was a discussion of racism and an obligation un- der the collective agreement to investigate any inappropriate conduct. However, Wil- liams didn't file a complaint under the ha- rassment policy which would have ensured an investigation — her occurrence report was "a defensive act" in response to the other officer's complaint and there was no suggestion Williams suffered any harm or disadvantage stemming from the incident. Finally, the board found the ministry looked into the 2014 incidents with the se- curity manager and sergeant and found no intention by either to demean Williams or have racial overtones. ere was no viola- tion of the harassment policy and, since Williams didn't file a complaint under the policy, there was no obligation to further investigate them, said the board. e ministry was ordered to pay Williams $3,500 for breaching the discrimination and harassment policy when it failed to advise her in a timely manner of the outcome of the July 2010 incident. e ministry's breaches of the safe departure protocol in December 2010 and the collective agreement obliga- tion to investigate the April 2011 door in- cident didn't require additional remedies other than clarification of the procedure, and there were no breaches in the other in- cidents, leaving the total damage award at $3,500. For more information see: • Ontario (Ministry of Community Safety and Correctional Services and OPSEU (Williams), Re, 2015 CarswellOnt 378 (Ont. Grievance Settlement Bd.). « from DisCrimination on page 1

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