Date: 20230220

File: 566-02-09828

 

Citation: 2023 FPSLREB 20

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Paul Ivanoff

 

Grievor

 

and

 

DEPUTY HEAD

(Correctional Service of Canada)

 

Employer

Indexed as

Ivanoff v. Treasury Board (Correctional Service of Canada)

In the matter of an individual grievance referred to adjudication

Before: Edith Bramwell, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Tony Micallef-Jones and Kim Veller, counsel

For the Employer: Adam C. Feldman, counsel

Heard via videoconference,

November 8 to 10 and 30 and December 1 and 2, 2021.

REASONS FOR DECISION

I. Individual grievance before the Board

[1] On December 6, 2012, Dr. Paul Ivanoff (“the grievor”), a psychologist at Fenbrook Institution (“the institution”) in Gravenhurst, Ontario, was suspended without pay by his employer, the Correctional Service of Canada (“the employer”), following an independent investigation of a harassment complaint made by Marta Mirecki (then Marta Mirecki-DeRoode), Institutional Mental Health Nurse, Beaver Creek and Fenbrook Institutions. The investigation (“the Quintet investigation”) resulted in a report dated July 30, 2012 (“the Quintet Report”), which made two findings of harassment. The institution’s warden accepted the Quintet Report’s conclusions and imposed a five-day suspension on the grievor on the following four grounds:

...

... I have concluded that you have violated the Correctional Service Canada (CSC) Standards of Professional Conduct and the Code of Discipline - Commissioner’s Directive (CD) - 060. Specifically, you have violated the following:

· 6(g) fails to conform to, or to apply, any relevant legislation, Commissioner’s Directive, Standing Order, or other directive as it relates to his/her duty;

· 10(b) is abusive, by word or action, to other employees, while on duty or under circumstances related to his/her duties;

· 10(e) commits any act of personal or sexual harassment, or discrimination against another staff member;

· 18(a) fails to properly safeguard all documents, reports, directives, manuals, or other information of the Service ....

...

 

[2] The five-day suspension was grieved on December 28, 2012. On June 4, 2014, the grievor referred his grievance to adjudication, pursuant to s. 209(1)(b) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA). On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013 c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board to replace the Public Service Labour Relations Board and the Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to s. 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the PSLRA before November 1, 2014, is to be taken up and continued under and in conformity with the PSLRA as amended by ss. 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

[3] On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board and the titles of the Public Service Labour Relations and Employment Board Act and the PSLRA to, respectively, the Federal Public Sector Labour Relations and Employment Board, the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act.

[4] For the reasons that follow, the grievance is allowed in part.

II. Summary of the evidence

A. Overview

[5] The Quintet Report’s first finding of harassment was as follows:

...

The allegation that Dr. Ivanoff harassed Ms. Mirecki-DeRoode by sending her emails, highlighted in bold and in red, which were sarcastic and offensive, and gave inappropriate direction to her, is therefore founded. While several of the emails given in evidence did not constitute harassment, those dated April 8, 2011, (Appendix B-5), May 16, 2011 (Appendix B-9), May 27, 2011, (Appendix C-1), May 30, 2011 (Appendix B-11) and November 22, 2011 (Appendix B-13) did constitute harassment.

...

 

[6] The Quintet Report’s second finding of harassment was based on a single December 9, 2011, email that it found “... offensive, if not potentially dangerous to Ms. Mirecki-DeRoode”.

[7] Each of the six emails at issue (“the impugned emails”) is reproduced in full later in this decision and is referenced in it as follows:

· sent April 8, 2011, to Ms. Mirecki, copying Dr. Joel Ginsburg (Email “1”);

· sent May 16, 2011, to Ms. Mirecki and Dr. Ginsburg (“Email 2”);

· sent May 30, 2011, to Dr. Ginsburg, Susan Groody, and Heather Smith, copying Louise Packer (“Email 3”);

· sent May 30, 2011, to Ms. Mirecki, copying Joan McLeod (“Email 4”);

· sent November 22, 2011, to Ms. Mirecki (“Email 5”); and

· sent December 9, 2011, to Ms. Groody, copying three others (“Email 6”).

 

[8] Most of the documentary evidence before me was contained in a jointly submitted book of documents, which included the Government of Canada’s Policy on Prevention and Resolution of Harassment in the Workplace in effect at the time of the events that gave to the grievance (“the Policy”) and the employer’s Commissioner’s Directive 060 - Code of Discipline.

[9] The Policy contains the following definition:

...

Harassment ...

is any improper conduct by an individual, that is directed at and offensive to another person or persons in the workplace, and that the individual knew or ought reasonably to have known would cause offence or harm. It comprises any objectionable act, comment or display that demeans, belittles, or causes personal humiliation or embarrassment, and any act of intimidation or threat. It includes harassment within the meaning of the Canadian Human Rights Act.

...

[Emphasis in the original]

 

[10] The parties submitted an agreed statement of facts confirming that the grievor had sent certain emails, including the impugned emails.

[11] Prior to the hearing, the bargaining agent objected to pages 248-50, 265, and 271-2 of the jointly submitted book of documents, on the basis that they were subject to grievance communications privilege. The employer conceded the objection with regard to pages 265, 271 and 272. The bargaining agent also objected to the introduction of archival records of prior discipline on the basis that these records were discoverable in advance of the hearing and their disclosure the evening before the hearing was prejudicial.

[12] The employer noted that pages 248 – 250 of the jointly submitted book of documents predate the grievance. As the disciplinary hearing minutes did not discuss settlement, that privilege does not apply either. On the second point, the employer noted that the records shared with the grievor's representative before the hearing were the only remaining records of previous reprimands, which are mentioned in the record in numerous instances, in circumstances where the grievance dates back to 2012.

[13] As they are relevant and address issues well-known to the parties, I received the archival records of past discipline into evidence. Pages 248 - 250 of the joint book of documents, which predate the grievance and are therefore not subject to privilege, were also received into evidence.

[14] The events at issue in the grievance occurred between April 8, 2011 (the date of the first impugned email), and December 6, 2012 (the date of the discipline). Four witnesses testified for the employer: Dr. Ginsburg (until November 2011, Chief of the Psychology Department (“the Department”)), Mr. Christopher Rowntree, who was, during the events at issue, a Department member and then its acting chief, and Mr. Scott Tempest, who was, during the events at issue, the institution’s warden. Ms. Mirecki also testified on the employer’s behalf.

[15] Dr. Ginsburg and Mr. Rowntree started working at the institution as psychologists in 2002. Dr. Ginsburg had been the senior psychologist there since 2007. Mr. Rowntree accepted a series of acting roles as the chief of the Department from 2010 to 2012. He became the acting chief psychologist after Dr. Ginsburg’s 2011 resignation and held that position until February 2012.

[16] The grievor testified on his own behalf. He completed his formal education, which includes master’s and doctoral degrees, while still living in Russia, before taking up clinical work in the United States. At the time the discipline was imposed, he had been working for the employer for approximately 11 years, exclusively at the institution.

[17] Overall, the evidence painted a picture of poorly managed organizational change during the events at issue in the grievance and profoundly ineffective workplace-conflict resolution at that time and in prior years. All of the witnesses testified to a polarized atmosphere of interpersonal and professional conflict that was already well entrenched before the events at issue in the grievance occurred.

[18] At that time, the institution consisted of 4 inmate units of about 100 residents each. The Department included Dr. Ginsburg, the grievor, his wife and colleague Dr. Helen Kolobow, Ms. Mirecki, Mr. Rowntree, and several contractors. The grievor started working with Ms. Mirecki in 2009, mostly in the Edgewood (“E”) or Granite (“G”) units of the institution.

[19] Ms. Mirecki’s interactions with the grievor were primarily in two areas, at the interdisciplinary Mental Health Team meetings that he sometimes chaired (chairing them was shared with Dr. Ginsburg), and with respect to what all witnesses called “referrals” (the referring of medication requests to physicians and psychiatrists). They also interacted at Department meetings.

[20] Dr. Ginsburg and Mr. Rowntree both described highly positive working relationships with Ms. Mirecki. In contrast, their testimonies, along with several of the emails appended to the Quintet Report, spoke to the ongoing conflicts of both Dr. Ginsburg and Mr. Rowntree with the grievor. In particular, Dr. Ginsburg and Mr. Rowntree both testified that the grievor tended, at that time, to dispense unsolicited advice on a variety of issues.

[21] The Quintet Report notes that Dr. Ginsburg described the grievor as abusive, argumentative, presumptuous, and condescending. Dr. Ginsburg described the grievor’s general approach to him, as the Department’s chief, as demeaning and disrespectful of his authority. The Quintet Report notes that Dr. Ginsburg felt that the grievor had bullied him since at least 2005. Mr. Rowntree acknowledged that he made no progress in resolving the Department’s long-standing conflicts after he became its acting chief in late 2011.

[22] Mr. Tempest became the institution’s warden in June 2008. By the time of the events that gave rise to the grievance, he had seen many of the grievor’s emails, ranging in tone from polite and professional to officious and insubordinate. In his view, the grievor’s written communications were often rude and abrasive, and the grievor’s considerable professional ability was often overshadowed by his unfortunate demeanour. Mr. Tempest had no similar concerns about Dr. Ginsburg or Mr. Rowntree. He did not see them as instigators of the Department’s conflicts.

[23] Ms. Mirecki is a registered nurse. She joined Fenbrook and Beaver Creek Institutions in 2009 and became a member of the Department in early 2010. Her activities included triaging mental health issues (i.e., moving inmates’ cases forward for treatment and diagnosis by a psychiatrist) as well as consultations about issues such as symptoms, side effects, and medication. She also trained officers in mental health awareness. Although she could not dispense medication, she had access to it for very specific situations.

[24] In 2009, Ms. Mirecki became the first incumbent of the newly created mental health nurse position at the institution. Initially, many staff members were confused about this new role. Her perception was that the grievor in particular was unsure about how the role would fit into the Department. In his testimony, he acknowledged that he was confused about the boundaries of their professional relationship. As a new team member, Ms. Mirecki perceived him as a respected and articulate psychologist. She tried her best to work well with him.

[25] Ms. Mirecki’s first memory of the grievor dates from 2009. At a meeting, he pressed her to provide information that she did not have. After the encounter, which left her feeling challenged and inadequate, she suffered a panic attack. She discussed the incident with her then-supervisor, Susan Groody, Chief of Health Services, Fenbrook Institution, who advised her “to pull up her socks and get moving.” Ms. Mirecki gathered from this that it was up to her to find a way to get along with the others in the Department, including the grievor.

[26] Ms. Mirecki continued to find her interactions with the grievor challenging after joining the Department. She sometimes found his tone abrupt. His written and oral communications often implied or stated that she was confused about her duties. It seemed that he often tried to use her as a communication conduit to the psychiatrists.

[27] As these interpersonal difficulties escalated, Ms. Mirecki sought guidance from Dr. Ginsburg, who sometimes acted as a buffer between her and the grievor. She also spoke to David Ling about her conflicts with the grievor while he was the acting warden. Mr. Ling advised her to clearly inform the grievor that his emails were upsetting or disrespectful when a problematic communication was received. Eventually, Ms. Mirecki found that even saying hello to the grievor was difficult. He was curt and did not always return her greetings.

[28] In April or May of 2011 Ms. Mirecki initiated a talk with the grievor in his office doorway. She was concerned about his frequently critical feedback. She apologized to him for what he perceived as her errors and did what she could to mitigate the conflict. This did not prove successful in improving their working relationship.

[29] In May 2011, a disciplinary investigation (“the Packer Investigation”) into some of the grievor’s emails was initiated by Louise Packer, Assistant Warden, Fenbrook Institution, following complaints about his behaviour from Dr. Ginsburg and Ms. Mirecki. Ms. Packer interviewed the grievor and others as part of the Packer Investigation. The grievor attended his interview with his union steward. Concurrent with the Packer Investigation, a workplace mediation process was tentatively considered. The grievor withdrew from it upon learning of the complaints made by Dr. Ginsburg and Ms. Mirecki. The Packer Investigation was discontinued before the resulting disciplinary report (“the Packer Report”, excerpts of which are appended to the Quintet Report) was shared with the grievor. No discipline resulted from the Packer Investigation. Ultimately, the Quintet Report found one of the emails considered in the Packer Investigation (Email 2) harassing.

[30] On June 1, 2011, Ms. Mirecki emailed the grievor to express her profound concerns with his communication style, which she found offensive, embarrassing, and intimidating. She summarized the harm that it caused her. In particular, she cited his sarcasm, formatting habits, and email distribution practices. She also expressed hope that informal conflict-resolution approaches might improve the tone of communications within the Department. She noted that at that time, she was not aware of any formal complaint on her behalf still in existence.

[31] Dr. Ginsburg said that ultimately, the grievor “wore him down”. His sense of futility and powerlessness was confirmed in a June 21, 2011, email in which he states that he cannot be responsible for ensuring a harassment-free workplace because, despite his best efforts, he cannot control the grievor’s behaviour. Dr. Ginsburg testified that although he could have attempted informal discussions with the grievor about the impugned emails, in his opinion, it would have been “a disaster.”

[32] On August 15, 2011, Ms. Mirecki initiated a conversation with the grievor, and they went for a walk together. She expressed her concerns with his use of red fonts in emails. He asked her about using green instead; she told him that green highlights would be helpful. The grievor’s memory, which is not consistent with Ms. Mirecki’s, is that he apologized to her at that time and at other points as well when similar matters were brought to his attention.

[33] In September 2011, Joan McLeod, Conflict Mediator, Regional Headquarters, convened a five-day mediation (“the McLeod mediation”) in an attempt to resolve conflicts in the Department. The Quintet Report notes that Mr. Rowntree described the McLeod mediation as a “snake pit”, with the grievor and others forming a faction that unrelentingly criticized Dr. Ginsburg. Mr. Rowntree further described the whole group as behaving “... like mad dogs to the slaughter.”

[34] After Dr. Ginsburg broke down during the McLeod mediation and did not return to work, Ms. Mirecki lost confidence that the Department’s conflicts could ever be resolved informally. Dr. Ginsburg testified that his conflict with the grievor was the main reason for his resignation from the institution. In his resignation letter, he highlighted the ongoing arguments with the grievor, Dr. Kolobow, and Dr. Gil Ansah (a contractor with the Department). After the McLeod mediation, it seemed to Ms. Mirecki that the grievor’s emails became worse. She chose to make a harassment complaint after receiving Email 6 because in her opinion, no one could look at Email 6 and not understand that it was wrong; she knew that Email 6 “would stick.” By then, the conflict was taking a significant toll on her mental and physical health.

[35] The person guiding her in making the harassment complaint selected the grievor’s emails that seemed the most obviously harassing from among those that Ms. Mirecki provided. Ms. Mirecki was told that for the harassment complaint to succeed, harassment had to be proven “beyond a reasonable doubt.” On January 10, 2012, Ms. Mirecki made her harassment complaint. The investigation of Ms. Mirecki’s harassment complaint is summarized in the Quintet Report.

[36] At the time of the Quintet investigation, the grievor stated that he considered Ms. Mirecki’s allegations groundless and in bad faith and that he believed that Dr. Ginsburg was bringing his dissatisfactions forward through Ms. Mirecki.

[37] Concurrent with Email 6 and the subsequent Quintet investigation, Mr. Rowntree considered making a harassment complaint against the grievor based, in part, on upsetting emails. The complaint was never made.

[38] During the events that gave rise to the discipline, Ms. Mirecki testified that she felt demeaned, belittled, and humiliated by the grievor. His comments were embarrassing and unwarranted. She had made several attempts to ask him to stop, including emails that explicitly stated her concerns (such as those of June 1 and November 28, 2011) before making her harassment complaint. The grievor was asked on cross-examination if he had ignored Ms. Mirecki’s suffering during this period. He replied that he did not realize that she was suffering or that if she was, it was not because of him. He also said that he has since apologized for any harm that he might have caused.

[39] As the harassment-complaint process unfolded and the situation further deteriorated, Ms. Mirecki became increasingly overwhelmed and stressed. She testified that ultimately, she regretted making the complaint. After a great deal of self-reflection, she has come to believe that the grievor’s treatment of her during the events that gave rise to the discipline was not personal. She testified that with time, she has come to understand that the Department’s tensions were rooted in the impact of change and uncertainty on a group that was already in conflict.

[40] Ms. Mirecki testified that her relationship with the grievor and his wife has now improved, and she found reviewing the events underlying the grievance distressing. She was unsure about whether the five-day suspension ultimately had had a positive effect on the grievor in the years following the discipline. She was concerned that the hearing process of the Federal Public Sector Labour Relations and Employment Board (“the Board”) might negatively impact her working relationship with the grievor.

[41] The grievor did not, and does not, see himself as insubordinate but rather as someone who carefully follows supervisory direction. When he saw something questionable, he spoke out, in accordance with his obligation to patients and his duties under his professional licence. In his opinion, professionally founded criticism is not insubordination. He now dislikes the style and tone of some of the impugned emails, but the point that he raised was, in his opinion, always professionally necessary. His communications were work related and goal oriented. He never blamed Ms. Mirecki for the Department’s conflicts. He never intended to demean or belittle anyone.

[42] The grievor admitted that in all six of the impugned emails, he did not approach Ms. Mirecki to initiate an informal discussion before writing to or about her. He acknowledged that she had asked him many times not to send upsetting emails.

B. Prior discipline and performance evaluations

[43] Given the passage of time, it is unsurprising that the witnesses’ recall of prior discipline was hazy at best. Archival records introduced into evidence confirmed that the grievor had been disciplined by way of a written reprimand on two prior occasions, once for a misconduct incident on October 19, 2010, for the “persistent use of negative communication with/to supervisor and co-worker which created a negative environment in the workplace”, and again for a June 19, 2012, incident for unspecified grounds under the label “Abuse, Threats or Assaults”. The records state that both written reprimands were purged from the employer’s records in 2016, and they were not put before me in evidence.

[44] Dr. Ginsburg was the manager noted in the archival data record for the October 19, 2010, incident. Although his recall of the written reprimands was tenuous, he was confident that he would not have issued a written reprimand without grounds. He did recall clearly that the grievor was “gobsmacked” by receiving a reprimand and that it had no impact on his behaviour. The manager noted in the archival data record for the June 19, 2012, incident was Lisa Ling, who did not testify.

[45] The grievor acknowledged on cross-examination that he had received prior written reprimands and that his problematic communication style had been cited in his performance evaluations. His performance evaluation report (“PER”) for the period ending October 31, 2012, notes an ongoing need for improvement in his electronic, written, and verbal communications so that they would consistently reflect respect for others. The PER also noted that the objective of respecting individuals by restricting the distribution of communications to those with a genuine need to see them was not met. The grievor’s PER for the period ending October 21, 2011, noted that an area requiring improvement from the previous PER was communications with colleagues. That PER also mentioned inappropriate verbal and electronic communications, some of which were shared with individuals who had no need to know their contents. The PER for the period ending in 2010 noted that the grievor had not always taken responsibility for the style, content, and distribution of his electronic communications. He disagreed with aspects of all these PERs when they were produced.

[46] In his testimony, Mr. Rowntree referred to an instance in which the grievor had criticized him, in his opinion unfairly, after taking on some of Mr. Rowntree’s responsibilities in his absence. Mr. Rowntree testified that the grievor had shared comments about it with the inmate that were embarrassing, that belittled his work, and that were misleading and inaccurate. A 2010 email appended to the Quintet Report documents this incident. Mr. Rowntree described it as a “pissing match” between two psychologists. He also recalled that the grievor had shown little or no remorse at a one-hour meeting to discuss these critical comments. When presented with concerns at the meeting, the grievor had, according to Mr. Rowntree’s recollection, not been hostile, but he had not recognized that his comments were inappropriate. Mr. Rowntree described this experience as being just like Ms. Mirecki’s experiences arising out of Email 6.

[47] Dr. Ginsburg confirmed on cross-examination that the grievor was not counselled, disciplined, or reprimanded with respect to any of the impugned emails, individually, when they were sent.

C. The disciplinary interview

[48] Mr. Tempest felt that he had had a good conversation with the grievor in the November 1, 2012, disciplinary interview, but the grievor’s reaction in the interview had indicated that further correction was needed. The grievor’s statement to the effect that he did not care about how other employees reacted figured in the ultimate disciplinary decision. Mr. Tempest was surprised by the grievor’s lack of empathy, given that he is a psychologist. Mr. Tempest believed that people would be shocked that so much conflict was happening in the Department and among people with expertise in empathy, emotions, and human behaviour.

[49] The grievor testified that he had been ready to accept some punishment for his communication style at the disciplinary interview hearing. He did not intend to be rude or inappropriate, although by the time the interview was held, he had come to understand how others could view his behaviour that way. He acknowledged that one reason for his unwillingness to characterize his behaviours as harassment would be the implications for his professional psychologist licence.

[50] In his testimony, the grievor contextualized his remark about not caring about others’ reactions. He testified that first and foremost, he cared about his patients and the policies for their care and safety, which was why he brought up examples of violations. By the time of the disciplinary interview, his initial position with respect to bad faith and Ms. Mirecki’s harassment complaint had shifted; he acknowledged that he might have hurt her feelings. He continued to believe that Dr. Ginsburg had done little to calm the Department’s many tensions.

[51] To the best of the grievor’s recollection, at the disciplinary meeting, he said that the tasks in his job description were his priority. For example, when he saw a mentally ill inmate living for nine days in miserable conditions, it became his professional priority. How others felt about his intervention was secondary. The grievor testified that in his view, he feels that some people are relationship oriented, and some are work oriented. He is work oriented.

D. The impugned emails

1. Email 1 – April 8, 2011

[52] Email 1 reads as follows:

From: Ivanoff Paul (ONT)

Sent: Friday, April 08, 2011 2:59 PM

To: Mirecki-DeRoode Marta (ONT)

Cc: Ginsburg Joel (ONT)

Subject: Marta’s complaint

 

Hello Marta,

 

Here is a surprising addition to our yesterday’s discussion:

 

I have sadly learned today from our line supervisor Dr. Joel Ginsburg, PS4, that you recently complained to him about me with regards to my e-mail of March 10, 2011 10:35 AM (coped below) where I shared my clinical opinion and gave a recommendation without consulting with you.

Dr. Joel Ginsburg advised me that you are angry with me and expect me in the future to consult with you prior to giving my recommendations on cases of inmates with whom you have/had clinical contacts.

As a supervisor, Dr. Ginsburg supports your complain and considers my action as wrong.

Although Dr. Ginsburg was unwilling to issue a Memorandum for FMI that would oblige licensed psychologists to consult with licensed nurses prior to sharing clinical opinions/recommendations, it was his order, so I must obey (at least during the processing of my subsequent grievance).

Hence, to be in compliance with Dr. Ginsburg’s order, please provide me on a weekly basis a list of inmates with whom you are (or plan to be) in clinical contact.

 

Thank you,

Paul

...

[Emphasis in the original]

[Sic throughout]

 

[53] Ms. Mirecki and Dr. Ginsburg described use of bold, red, and italicized lettering (“without consulting with you” (in red), “... psychologists to consult with licensed nurses ...”, and “... at least during the processing of my subsequent grievance ...”) as typical of the grievor. Dr. Ginsburg’s testimony confirmed that he had indeed expected the grievor to consult Ms. Mirecki, as outlined in Email 1.

[54] In their testimonies, both Ms. Mirecki and Dr. Ginsburg expressed concern with Email 1’s overall tone. Dr. Ginsburg found inappropriate both the reference to a potential grievance and the words “sadly learned”. He took the comment that he was unwilling to issue a memorandum about his expectation as a slight against his managerial authority, a concern also noted by Ms. Mirecki. On cross-examination, Dr. Ginsburg could not recall whether he had followed up with the grievor about these concerns.

[55] Ms. Mirecki testified that the words “sadly learned” were sarcastic. In contrast to Dr. Ginsburg, who had noted that he expected that the grievor would consult Ms. Mirecki, she testified that no one was required to consult her. In her view, there were untrue “overlays” in Email 1. She saw Email 1’s real purpose as being to challenge herself and Dr. Ginsburg; in effect, to “throw down the glove.” In evidence, she noted that she still had a strong emotional reaction to the words “... it was his order, so I must obey ...”, even after the passage of nine years.

[56] The grievor testified that he felt sad, as stated in Email 1, because Ms. Mirecki should have addressed him directly, not by complaining to a supervisor. He indicated that his use of the word “sad” was not sarcastic. To follow Dr. Ginsburg’s direction, he had to see her client list. He was surprised that she found this idea threatening. For the grievor, Email 1 had two purposes. The first was to ask Ms. Mirecki for information. The second was to tell Dr. Ginsburg that although he did not agree with Dr. Ginsburg’s order, he would obey it, as required, while his grievance was being processed.

[57] In the grievor’s opinion, Dr. Ginsburg’s direction violated many regulations. Under his professional licence, the grievor could not be required to consult a nurse before making a recommendation. In his opinion, this is why Dr. Ginsburg was not willing to issue a memorandum, confirming this inappropriate direction in writing. Email 1’s bold text, red font colour, and italics were meant to bring attention this, and “without consulting with you” was put in red because it was the essence of Dr. Ginsburg’s order. A grievance filed in this respect was denied at the first level and was then abandoned or withdrawn.

[58] On cross-examination, the grievor testified that Email 1’s sarcasm was directed at Dr. Ginsburg. Although Ms. Mirecki had said that no one had to consult her, Dr. Ginsburg had indicated otherwise. The grievor did not consider himself to be critical of Ms. Mirecki in Email 1. He was obligated to follow his supervisor’s direction and so required the list of inmates with whom Ms. Mirecki was in clinical contact.

2. Email 2 - May 16, 2011,

[59] Email 2 reads as follows:

From: Ivanoff Paul (ONT)

Sent: Monday, May 16, 2011 10:45 AM

To: Mirecki-DeRoode Marta (ONT); Ginsburg Joel (ONT)

Subject: “tem work”... RE: [redacted]

 

Marta:

Your reluctance to respond to my info request (below) - it looks like another illustration of our deficient “tem work”...

Dr. Ginsburg, Chief of Psychology:

For your information and possible action:

It was revealed to me on Friday, when I covered in Chris’ absence, that [redacted], since his return to FMI, simply sited in the obs cell for 9 days without any intervention:

- He was not receiving pharmacotherapy from HC;

- He was not receiving psychotherapy from psych department (daily 5-minute “check up’s” by his assigned psychologist defiantly do not constitute a therapy).

9 days on “high suicide watch” in obs cell and without any treatment - it does not strike me as a “good practice.”

 

Thanks,

Dr. Ivanoff, PS-3

[Emphasis in the original]

[Sic throughout]

 

[60] Email 2 is part of an email chain that started on May 13, 2011, when the grievor asked Ms. Mirecki about an inmate’s medication status. Unbeknownst to the grievor, she was on sick leave on May 13, 2011, although she did attend a meeting at Beaver Creek Institution on that day.

[61] The grievor testified that Email 2 concerned a patient of Mr. Rowntree’s in an observation, or “obs”, cell. An obs cell is 12 feet long by 12 feet wide, and the contents are limited to a mattress on the floor and a toilet. The inmate was on high suicide watch, meaning that he was naked under a gown made of untearable fabric and was receiving finger food served through a food slot without utensils. He was not allowed books, radio, or TV; nor could he exercise or shower. A correctional officer observed the inmate directly through an internal window 24 hours per day.

[62] The grievor was deeply disturbed upon seeing that the inmate had been in that condition for nine days, unshaven, without medication, and without any therapeutic psychiatric visits. The grievor testified that a stay of that length in an obs cell was very unusual. Complex mental-health cases were typically sent to the Regional Treatment Centre. Email 2’s “good practice” comment was directed at Mr. Rowntree.

[63] In their testimonies, Dr. Ginsburg and Ms. Mirecki both stated that the use of the term “reluctance” was unfair. The grievor could have spoken directly to Ms. Mirecki, instead of sending an email, to resolve the issue. He had not been asked for his opinion on that inmate. Ms. Mirecki found his comments about the situation inaccurate and exaggerated. She described the sarcastic use of the phrase “tem [sic] work” as a “little poke.”

[64] With respect to the word “reluctance”, the grievor testified that the Regional Treatment Centre indicated that the inmate had a lithium prescription. Health Care had hesitated to fill the prescription due to technical difficulties. The grievor felt that Ms. Mirecki was avoiding becoming involved in a potential conflict between the Regional Treatment Centre and Health Care.

[65] The excerpt from the Packer Report appended to the Quintet Report contains some contradictory information in this respect. The Packer Report states that when the grievor was interviewed, he should not have indicated that Ms. Mirecki lied when she said that the prescription was not on the file, as the prescription sheet was indeed blank on the institution’s file. The Packer Report excerpt also notes that emails from John Eastabrook of the Regional Treatment Centre indicated that the inmate had a prescription for three medications. Ms. Mirecki was copied on those emails.

[66] It was a serious concern for the grievor that an inmate had been in an obs cell, without intervention, for nine days. The grievor did not consider his description of nine days without intervention misleading. In his view, the inmate was not receiving anything that could truly be described as intervention. Intervention means treatment, medication, and therapy, not brief visits from a parole officer or nurse. The brief visits he and Mr. Rowntree made with the inmate during those nine days, generally communicating through the food slot, were only for assessment purposes. These visits could not accurately be described as interventions or treatment.

[67] The grievor felt that “reluctance” accurately characterized his understanding of Ms. Mirecki’s approach during this period. She had not replied to his repeated requests for information on the inmate’s medication status over the course of three days (from May 13 to 16, 2011). During that time, the inmate was in the small cell, on the floor, without exercise or normal hygiene, and there was a stench.

3. Email 3 – May 30, 2011

[68] Email 3 included an attachment. The text of the email is as follows:

From: Ivanoff Paul (ONT)

Sent: Monday, May 30, 2011 1:55 PM

To: Ginsburg Joel (ONT); Groody Sue (ONT); Smith Heather (ONT)

Cc: Packer Louise (ONT)

Subject: NOTE Re: MHTM in Fenbrook

 

Hello,

Please [sic] attached a Note Re: MHTM in Fenbrook.

Thank you for your attention,

 

Dr. Ivanoff

Psychologist

Chair of 1⁄2 of MHT Meetings in FMI

 

[69] The text of the attachment is as follows:

RE: HC representation at MHTM

For attention and possible action of the FMI Management (Psychology / HealthCare / Intervention) overlooking the Mental Health Team execution (CD 850):

During 2011-05-26 Mental Health Team Meeting in G-unit, Member of the Team, psychiatric nurse of the Institutional Mental Health Services (IMHS) Marta Mirecki-DeRoode demonstrated a resistance to two referrals from the Mental Health Team:

1. M. Mirecki-DeRoode refused to take new referral from a parole officer to assess a patient of HC whose psychotropic medication had been recently altered and who recently informed this parole officer of elevation of his psychiatric symptoms.

Presented rational:

“I do not have time for him...”

2. M. Mirecki-DeRoode failed to respond to referral from the previous Mental Health Team Meeting in G-unit (2011-04-07) to assess functioning of HC patient on psychotropic medication.

Presented rational:

“I did not do his assessment -I only had a chat with him...”

Such professional attitude of IMHI psychiatric nurse Marta Mirecki-DeRoode seems to be:

(a) in violation of CD 850 - Mental Health Services

(b) in violation of job description for IMHS psychiatric nurse (at least how it was initially explained to the FMI interdisciplinary MH Team)

c) in violation of common behavioural standards expected during the interdisciplinary MH Meetings.

 

Thank you for attention and action, if applicable.

 

Dr. Paul Ivanoff, C. Psych

Chair of the Mental Health Team Meeting

[Emphasis in the original]

[Sic throughout]

 

[70] Email 3 was not sent to Ms. Mirecki. Dr. Ginsburg confirmed in testimony that the attachment was sent to Ms. Mirecki’s entire chain of command (including Assistant Warden Ms. Packer) as well as the person overseeing parole officers, and the chief of Health Care, despite the fact that Ms. Mirecki was licensed for autonomous practice. Dr. Ginsburg confirmed in testimony that he believed that Ms. Mirecki had the discretion to decide which referrals to take on and that she could consult him, if needed, a perspective also adopted by the Quintet Report.

[71] In Dr. Ginsburg’s opinion, the grievor’s description of himself as “Chair of 1⁄2 of MHT Meetings in FMI” expressed sarcasm and anger. Dr. Ginsburg admitted that he had no recollection of disciplining the grievor for this email or of following up with him about it.

[72] The grievor testified that this message was intended to alert the institution’s administration to an untenable situation. Ms. Mirecki’s level of participation, as the Health Care representative at these interdisciplinary meetings, was problematic. She had been unprepared at the first meeting and had been unable to answer questions about inmates. The grievor had already told Dr. Ginsburg that Ms. Mirecki was unaware that she should attend the meeting with necessary inmate information, in an informal attempt to solve the problem. It concerned the grievor when she did not attend the meetings because of scheduling conflicts. As the sometime chair, the grievor felt obligated to ensure that the meetings went well. He wanted guidance and direction in that respect.

[73] Three departments participated in the Mental Health Team meetings; the memo was addressed to the three department heads and to Ms. Packer, the acting assistant warden, to whom Dr. Ginsburg reported. The memo was also copied to Ms. Smith, the parole officer supervisor, because the grievor was aware of parole officers’ complaints about Health Services referrals. He wanted Ms. Smith to know that he was trying to resolve those concerns. His subject line indicated “attention and possible action” to acknowledge that he could not direct management’s actions.

[74] When questioned about whether, as a licensed professional, she could refuse to make a referral, Ms. Mirecki replied that although that might be the letter of the law, she has never ignored a referral. She might have sometimes delayed or deferred referrals. She added that management might have thought that she was autonomous and therefore that she could pick and choose which referrals to accept, but this was not the case. Regulations prevented her from refusing one.

[75] Ms. Mirecki testified that the Mental Health Chair was actually Dr. Ginsburg. Although the grievor sometimes chaired meetings, doing so did not make him part of management. She felt that his signature was sarcastic and angry. She saw the comments about her as exaggerations. It was not his job to direct her. The statement that she did “not have time for” a patient was taken out of context. Ms. Mirecki had had no chance to address these issues before Email 3 was sent to management. She considered that to be indiscreet and an attack on her professional licence.

[76] The grievor also stated that he did not believe that Ms. Mirecki could have refused a referral. His understanding was that referrals had to be followed up within five days. It was Ms. Mirecki’s job to accommodate any referrals she received. He stressed the seriousness and importance of all referrals and expressly disagreed with the Quintet Report’s conclusion in that respect.

[77] The grievor’s opinion was that there was no way he could have been more discreet in the circumstances. Whether these concerns had been expressed in a memo or at a meeting, the same level of privacy would have applied. By then, the issue had already been discussed many times. His professional licence requires that he address such violations as they arise. The grievor confirmed in cross-examination that he did not approach Ms. Mirecki with his concerns in advance.

4. Email 4– May 30, 2011

[78] Email 4, sent on the same day as Email 3, reads as follows, with handwritten marginal notes by Ms. Mirecki that state, “I find this threatening” (repeated twice), and, “This email has highlighting in red” [emphasis in the original]:

From: Ivanoff Paul (ONT)

Sent: Monday, May 30, 2011 6:22 PM

To: Mirecki-DeRoode Marta (ONT)

Cc: McLeod Joan (ONT)

Subject: RE: Marta’s Complaint

 

Hello Marta,

I absolutely agree with you that the situation at Psych Department of Fenbrook is untenable. Same as you, I feel I want no longer to be in an environment where I am subject to ongoing harassment.

I was trying to work on the issue with assistance of Joan McLeod (Mediation, HQ) - to find communication venues for informal resolutions.

Unfortunately, last week FMI management have chosen to interrupt the Mediation route and to proceed with application of formal steps.

Thus, this Thursday at 1 pm I am invited to attend a “disciplinary meeting” to address your and Chris’ formal complaint about my “unprofessional behaviour.”

You have decided to go “formal,”

the FMI management approves,

so be it ...

Déja vu:

This call for my “disciplinary meeting” was booked immediately after I brought to Joel’s attention new examples of ongoing “bad practice” in our Psych Department (including his own another 4-months delay with assessment of newcomers with suicide history.

Familiar move.

Congrats to Joel.

Now he also uses you ...

Truly,

Paul

[Emphasis in the original]

[Sic throughout]

 

[79] Ms. Mirecki testified that she found many aspects of the email threatening, including the highlighting and sarcasm. In her view, it was unfair for the grievor to tell her that he was being disciplined. She felt that the statement “so be it” suggested that there would be “consequences” for her.

[80] The grievor testified that the email’s purpose was to tell Ms. Mirecki that he was declining mediation because disciplinary action had been initiated. He could not participate in a mediation while a formal disciplinary investigation was underway. He learned of the ultimately discontinued formal complaints when he took part in the Packer Investigation.

[81] The grievor denied any intent to use Email 4 to harass Ms. Mirecki. At that time, he believed that he was being subject to harassment. He felt that Dr. Ginsburg’s treatment of him was discriminatory, and he no longer wanted to be in such an environment. Ms. Mirecki’s aim in making the discontinued complaint, which led to the Packer Investigation, was to prevent the grievor from further intimidating her and specifically to stop him from saying that she was not doing her job properly. When she made her complaint, the mediation process then being contemplated was discontinued because people refused to participate.

5. Email 5 – November 22, 2011

[82] Email 5 reads as follows:

From: Ivanoff Paul (ONT)

Sent: Tuesday, November 22, 2011 5:00 PM

To: Mirecki-DeRoode Marta (ONT)

Subject: Consent signed “blank”

 

Hello Marta,

Mr. [redacted] has shared his concern with me, and asked me to facilitate his request to you:

It looks like you have 2 different “IMHI Consents” from him:

- First, that was a “blank form” he signed, as you asked him;

- Second, that he signed after you could not find the first one...

 

I, actually, understand his unease:

it is a serious professional violation

to encourage a client to sign basically empty piece of paper with promise to fill the content later...

Yet, Mr. [redacted] does not intend to officially complain. Instead, he simply wants the original the first “Consent for ???” he signed blank to be returned to him.

(in order to avoid on his coming release any news about possible “tratments” he has “consented” to...)

Thanks.

Paul

[Emphasis in the original]

[Sic throughout]

 

[83] The two consent forms in question are appended to the Quintet Report. They include four boxes that can be checked. After the box labelled “Individual therapeutic intervention (specify)”, there is a faint handwritten note that reads, “Assess/triage”. Something appears to be written beside the same box on the second form, but it is not legible. The grievor had not personally viewed the forms when he conveyed the inmate’s concern. On cross-examination, the grievor agreed that these two documents are not blank pieces of paper and that some parts of them had been filled in, including signatures of witnesses and the inmate. The grievor said that he would send this email again, if the situation were to arise once more.

[84] Mr. Rowntree testified that the consent in question was to release information. Although consent is important, a verbal review of a form, followed by verbal consent, is acceptable. Consent does not need to be in writing. Mr. Rowntree further testified that the more appropriate way to raise the concerns expressed in the email would have been in a one-on-one conversation.

[85] Ms. Mirecki testified that it would be a misperception to state that having a patient sign a blank form is a professional violation. She considered the grievor’s comments to be an exaggeration of a technicality and that any possibility of her actions being considered a professional violation was highly unlikely. She would never have retroactively filled in the contents of a consent form. The professional standard is to ensure that patients understand what they have consented to and know that their consent can be withdrawn. There were fears about inmate litigation, which had the potential to be sensitive. Discussing this with a patient crossed a line.

[86] The grievor sent his original concern exclusively to Ms. Mirecki, to get her to return the questionable consent form to the client. The inmate had come to him, agitated at having made an error. People on the range were making fun of the inmate because he had signed a blank form. The inmate was concerned about what would go above his signature, in part because he was close to release. The inmate had already tried to negotiate the form’s return with Ms. Mirecki, without success.

[87] The grievor told the inmate that he would contact Ms. Mirecki. He had genuine professional concerns about blank consent forms. He acknowledged that verbal consent is possible but noted that this was irrelevant here, given the use of a written consent form. The underlining in the email was meant to draw attention to significant issues. The bold, italics, and question marks for the consent form’s title were used because he was unclear on the consent that had been given. He testified that the email was not intended as a reprimand. He hoped that Ms. Mirecki would return the form to the inmate and be reminded of the regulations that she had to follow. She replied to him six days later and copied her reply to multiple people. In his testimony, the grievor noted that he was “sad” to see the word “unprofessional” applied to him in her reply email. This non-sarcastic use of the word “sad” was worth noting, given that the grievor’s use of it was an issue with respect to Email 1.

[88] The grievor indicated that he would send this email again, if necessary. He stressed that he is obligated to speak out if he has professional concerns. He continues to feel that that use of the consent form was against regulations.

6. Email 6 – December 9, 2011

[89] Email 6 reads as follows, and it has handwritten marginal notes of unknown origin:

From: Ivanoff Paul (ONT)

Sent: Friday, December 09, 2011 11:12 AM

To: Groody Sue (ONT)

Cc: Morrison Lesley (ONT); Marcelli Gina (ONT); Cooper Greg (ONT)

Subject: [redacted]

Importance: High

 

Hello Sue,

Officers in E-unit report troubling behaviour of Mr. [redacted] who is expecting for the past several weeks to get from HC his prescribed medication.

Officers are concerned.

Hopefully, you can make their life little easier ...

It is my understanding that Mr. [redacted] recently won his grievance in this regard and HS was directed to resume giving him the prescribed medication. (at least, it is what I know from my contact with Mr. [redacted] last Friday).

3 weeks ago, on 2011-11-17, I shared with IMHI nurse Marta Mirecki De Roode my assessment of Mr. [redacted] and, consequently, passed my referral “for possible sedation via medication”:

From the Minutes of 2011-11-17 MHTM in G-unit:

“History of s suicide attempt. Self ref as an “emergency” for “assessment for depression and ADHD medication.” Assessed on 2011-10-31 (u-psych Dr. Ivanoff). No elevated risk for suicide, but threatens to attempt if desired medication will not be provided. Found as emotionally unstable due to prolonged hx of drug addiction with current manifestation of withdrawal sx, accompanied by subaverage intellectual functioning. Ref to HC for possible sedation via medication. BF”

Today I’ve learned from the concerned officers in E-unit that

(a) Mr. [redacted] appears very unstable;

(b) nurse M. Mirecki De Roode refused to address this request for medication.

Is there any chance that Mr. [redacted] would be finally prescribed something for his sedation? His two previous suicide attempts (1998 and 2002) and his current verbalizations on the topic do seem concerning.

Thanks for considering,

Paul

[Emphasis in the original]

[Sic throughout]

 

[90] Dr. Ginsburg noted that a refusal to address a medication request, as described in the email, could elicit emotional or even violent reactions from an inmate. He testified that the most problematic aspect of this email was that it was copied to an inmate. Mr. Rowntree testified that email is no place for communications of this nature. He noted that “refused” is a potentially inflammatory word for an inmate and that it could have undermined Ms. Mirecki’s credibility. Because Ms. Mirecki was not copied on the email, the inmate had information that she did not, which could have jeopardized her safety.

[91] Mr. Tempest testified that Email 6 was not an appropriate way to handle an inmate request. These are best handled through direct contact with the staff member involved, such as the grievance coordinator. Sometimes the grievor’s zeal for patients resulted in him taking inmates’ statements at face value. Inmate statements should be verified. It was not the organizational standard to share staff disagreements with inmates. In an institution like Fenbrook, with few internal barriers or movement controls, staff safety concerns could arise from such an email.

[92] Ms. Mirecki testified that stamping such an email with “offender copy” was a “violation of the code of safety.” It broke an unwritten institution rule and had potential for harm. The only equipment provided for her protection and communication in an emergency was an electronic tool that was, with grim humour, referred to as the “time of death” device. She had not refused to address the situation. The statement “finally prescribed” made it sound like she was shirking her job, but the grievor’s request went beyond the scope of her duties.

[93] Ms. Mirecki became involved with only the most seriously ill inmates, who could be violent, delusional, and dangerous. She was unsure, but she thought that the inmate in question might have been a dangerous offender and psychotic. Email like this could give an inmate a basis to complain or litigate. The inmate wanted a type of medication that is often abused and that is desirable within the institution. From Ms. Mirecki’s point of view, the inmate was emotionally unstable and addictive, with sub-average mental functioning. He could have attacked her. Patients are not restrained when they meet with her, and they roam about the institution with some degree of freedom.

[94] The grievor intended Email 6 as a reminder to Health Services with respect to the inmate’s unresolved situation. He wanted to calm down the inmate. The only person who could address the problem was Ms. Groody, so she had to be copied. The grievor wrote the email to follow up on inmate and correctional-officer concerns. His main objective in sending it was action on the request for medication and sedation for the inmate. Possible sedation, which appears in italics and quotes, was the title of an email he had sent three weeks earlier. The italicization and quotation marks referenced that earlier email.

[95] The grievor gave Email 6 to the inmate so that the inmate would be reassured that his concerns had been shared. It can be distressing for an inmate if he believes that a referral is not being addressed. The inmate already knew that Ms. Mirecki had not responded to his medication request, so Email 6 did not share any new information. In the grievor’s evaluation, no foreseeable danger could have arisen from Email 6. In any event, the inmate could have asked to access his medical file and received the information independently. According to the professional regulations, any communication about a client must be documented on the client’s file. Even had the grievor simply spoken with the chief of Health Services by phone, he would still have had to document the call on the file.

[96] The grievor testified that the inmate did not have dangerous-offender status and that he was not transferred to the Regional Treatment Centre. The correctional officers were sincerely concerned that the client was unstable, but the concerns were for the inmate himself and not for the safety of Ms. Mirecki or others.

[97] The grievor felt compelled to write Email 6 because correctional officers and the client were disturbed by the situation. He did not consider whether Ms. Mirecki would be troubled by the email before he sent it, although he admitted that he knew that she likely would not like it. He acknowledged on cross-examination that inmates sometimes lie.

[98] The grievor indicated that he has no remorse with respect to this email and that he was right to send it. He would send it again today; it was a professional obligation.

[99] The grievor disagreed with Ms. Groody’s assessment of the situation as cited in the Quintet Report. He stated that he believes that the ultimate outcome of Email 6 was positive, although he was uncertain as to whether the inmate eventually received his medication. The grievor made his assessment and filed a referral. He did not advocate for any particular medication. He did not even recall if the client requested a particular medication. If so, he would have told the client to speak with Health Services. Three weeks after his referral, no action had been taken on it. He had to send a reminder.

III. Summary of the arguments

A. For the employer

[100] This is a progressive-discipline case. As confirmed by the three managers who testified, the employer had to escalate the level of discipline as previous formal and informal measures had had little effect on the grievor’s behaviour. The employer initially gave him the benefit of the doubt, starting with a written reprimand in 2010, and hoped that it would be corrective. Both Dr. Ginsburg and Mr. Ling tried to defuse the situation, and problems were noted on the grievor’s PERs. It would be incorrect to characterize management as not doing anything about the ongoing conflict or the grievor’s problematic conduct before or during the events that led to the discipline.

[101] Ms. Mirecki decided not to continue with a harassment complaint in May 2011. The employer’s lack of action on the Packer Report was not apathy or condonation; it was an endorsement of informal dispute resolution means. These informal tactics were actually effective for the summer of 2011, when the Packer Investigation was discontinued in favour of the McLeod mediation. There was a period of relative calm between Email 4 (dated May 30, 2011) and Email 5 (dated November 22, 2011). Management believed that the grievor might be coachable and was looking to him to be more respectful in communications. But by November 22, 2011, the grievor relapsed into his old pattern of callous, inappropriate email communications.

[102] The grievor had no insight into the impact of his behaviour. A number of his emails demonstrate a tenuous grasp of the facts. He condemned colleagues without grounding his concerns in reality and broadcast his remarks by copying multiple people. He lacked the collegial courtesy to discuss these sensitive matters in private. In his testimony, he repeatedly said that he would send the impugned emails again, if similar events arose. Ms. Mirecki identifies him as the reason for her distress in her June 1, 2011, email. The grievor remained immune to the fact that he caused that distress and suffering. There was a startling lack of empathy in his conduct.

[103] The grievor showed no meaningful remorse at the disciplinary interview or the hearing before the Board. His lack of remorse was a significant component of the rationale for the five-day disciplinary penalty. His apologies were limited to statements of regret that Ms. Mirecki found his communications upsetting, which was tantamount to saying that she is overly sensitive and unreasonable. These were not genuine apologies. He was either negligent about or willfully blind to the impact of his remarks.

[104] The dichotomy that the grievor proposed between relationship-oriented and work-oriented people is untenable. A workplace cannot function when people are not respectful in their professional relationships. He was told that his comments were unwelcome, yet he persisted in his behaviour patterns. He admitted that he knew that some of his emails would be upsetting and unwelcome.

[105] The most startling incident is Email 6, which was shared with an inmate. Mr. Rowntree had experienced a similar situation with the grievor. An email from Ms. Groody demonstrates significant differences in the understanding of the context in which this email arose, as documented in the Quintet Report. The inmate had been selling the drug he had asked for and had boasted about it. The grievor claimed that the situation was resolved positively, but the reality was very different. Nonetheless, he stood by his actions and indicated that he had had no intent to harass anyone.

[106] The employer cited Lemay v. Canada (Attorney General), 2019 FC 608, in support of the proposition that a lack of intention to harass is not determinative of whether harassment occurred. This is consistent with the definition of “harassment” in the Policy. The employer further submitted that intention is irrelevant to determinations of harassment.

[107] The impugned emails made inappropriate, sarcastic, or unwelcome comments. The grievor deprived Ms. Mirecki of the chance to discuss the allegations he had raised in his emails too many times to give him the benefit of the doubt. He deliberately inflicted harm to her professional reputation. Nothing would have stopped him from meeting Ms. Mirecki in person to discuss the disputes referenced in the impugned emails before resorting to written communications. He did not approach Ms. Mirecki before sending any of the six impugned emails. He should have; this is a requirement of Canadian Code of Ethics for Psychologists, per the excerpt appended to the Quintet Report. When he wrote the impugned emails, the grievor lacked the contextual understanding that consulting Ms. Mirecki informally might have given him.

[108] The grievor exaggerated the situation in Email 2. He and Mr. Rowntree saw the inmate seven out of the nine days. In addition, Ms. Mirecki and a parole officer also visited. The grievor provided psychotherapy. It is untrue to suggest that nine days passed without intervention. He accused Ms. Mirecki of being responsible for the inmate’s situation, but his opinion was unrequested and unwanted. His communication style was inappropriate, and Email 2’s contents were incorrect and misleading.

[109] The grievor’s behaviours were not condoned; nor could he have been lulled into a false sense of security by the employer’s conduct. Management was following the situation closely. It is easy, in hindsight, to suggest alternative ways in which the employer could have responded to the grievor’s misconduct, but there was no way for the employer to know at the time that he would not improve. The employer’s approach was reasonable and measured in the circumstances.

[110] The six emails display aggressive and abusive behaviour. The facts in the case go well beyond a momentary lapse into horseplay or poor judgement. The grievor’s use of email went from harassment to a physical safety hazard. Everyone who testified at the hearing before the Board and as part of the Quintet investigation said that it was unacceptable to share information with an inmate in the way that unfolded in Email 6. Email 6 alone might have deserved a suspension of longer than five days. It diminished Ms. Mirecki’s physical safety and reputation. In a workplace culture in which looking out for each other was the norm, it was a stab in the back.

[111] The grievor would not even acknowledge that a woman is more vulnerable than a man. Ms. Mirecki does not have the build of a boxer, and she feared for her life. The time-of-death device joke was a coping mechanism. Ten years later, the grievor still stood by his action of sending Email 6.

[112] The misconduct in this case was ongoing, and there was a high risk of recidivism. The grievor’s conduct resulted in a poisoned workplace. Dr. Ginsburg testified that he resigned because of the grievor’s conduct. He preferred the prospect of unemployment to working with the grievor. None of the factors listed in DHL Express (Canada) Ltd. v. C.A.W. Canada, Local 4215, 2010 CarswellNat 6237, argues for mitigation in this case. The grievor’s lack of remorse argues against varying the discipline imposed on him. He challenged his supervisor’s credibility and did not acknowledge the impact of his actions. When asked to elaborate why he said that the allegations against him were made in bad faith, he took aim at his supervisor and all but suggested a conspiracy against him.

[113] No delay in the employer’s discipline is discernable on the facts. Per the reasoning in Bell Technical Solutions v. CEP (Facebook Postings), 2012 CarswellOnt 11432, timelines are not rigid. The employer adhered to the Policy, which required completing all necessary steps. The grievor challenged every aspect of the Quintet investigation, which delayed the process. A delay due to valid reasons is not condonation.

[114] With respect to discriminatory discipline, the employer submitted that the grievor’s conduct, including his carbon copies of emails to other employees, was very different from that of anyone else in the workplace. The penalty imposed was based on his materially different conduct. The discipline letter cited paragraph 18(a) of Commissioner’s Directive 060 - Code of Discipline because the grievor copied his emails to people who had no business receiving them.

[115] The disciplinary letter was a measured response to an untenable situation. At the disciplinary interview, the Warden gave the grievor a chance to share his perspective and even let him cool down for an hour when he became inflammatory. The fact that the working relationship between Ms. Mirecki and the grievor eventually prospered demonstrates the reasonableness of the discipline, which improved the grievor’s conduct. He had engaged in harassing behaviour for so long, he became desensitized to it and lulled himself into believing that it was not harassment.

[116] In the circumstances, the five-day penalty was reasonable. The employer has wide discretion with respect to penalties. When confronted with his behaviour, rather than making a sincere apology, the grievor pleaded for a more professionally convenient label than “harassment” and ignored the harm that he had done. In essence, this was the main issue. He claimed that he upheld professional standards, but there is a way to do it without poisoning the workplace with a trigger-happy keyboard. Diminishing the penalty would send the wrong message and would condone the grievor’s behaviour.

[117] In support of its arguments, the employer also cited Invista (Canada) Co. v. C.U.P.E., Local 28-0, 2006 CarswellOnt 6828, Loyer v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 16, Sasktel v. Unifor, Local 2S, 2019 CarswellNat 5124, Toronto Transit Commission v. ATU, Local 113, 2013 CarswellOnt 18432, and from Brown and Beatty, Canadian Labour Arbitration, 5th edition, paragraph 7:32, “Aggressive and Abusive Behaviour”, paragraph 7:7, “Disciplinary Procedures—Timeliness”, paragraph 7:72, “Rehabilitative Potential”, and paragraph 7:9, “Disciplinary Procedures—Non-Compliance”.

B. For the bargaining agent

[118] Harassment, as defined by the Policy and the case law, did not occur in the facts of this case. The onus was on the employer to prove that each of the first five impugned emails constituted harassment and that the continuum of these emails was also harassment. It required both the five individual incidents of harassment and the entire continuum of the five emails, as well as the sixth single email, to support the five-day disciplinary penalty. If one of the impugned emails is found to not constitute harassment, a reduced penalty is appropriate. It is open to the Board to find that misconduct other than harassment occurred. In the alternative, if the Board finds that the penalty stands, it should not have been imposed for harassment. In the further alternative, the grievor submitted that any penalty based on a finding of harassment should be voided due to condonation.

[119] The bargaining agent contended that a neutral view of the impugned emails does not demonstrate harassment. It conceded that Ms. Mirecki was offended by the impugned emails. However, the harassment test requires more than her subjective feelings. The Board must consider whether the conduct that formed the basis of the discipline was improper and directed at her as an individual. Although an email might have been critical of Ms. Mirecki’s work, it does not mean that it was improper. If the employer relied on Quintet Report conclusions that are ultimately deemed unsound, the five-day disciplinary penalty cannot be sustained.

[120] This case is not about Dr. Ginsburg’s or Mr. Rowntree’s interpersonal and professional conflicts with the grievor. Their lengthy testimonies about the impact of these conflicts on them personally were prejudicial and lacked probative value and relevance. There were many conflicts at the institution at the time of the events that gave rise to the grievance. Ultimately, Ms. Mirecki is the sole complainant in this matter.

[121] There is an objective element to the definition of “harassment”, as well as a subjective one. The grievor conceded the subjective element, but the test does not end there. Ms. Mirecki’s subjective sense of threat with respect to Email 1 arose in large part from the mention of a pending grievance, which was not an objective threat. Grievances are filed against management. In Email 1, the grievor’s communication was a signal to a manager. The areas of the message that Ms. Mirecki found threatening were not directed to her. Email 1 was not objectively harassment.

[122] The Quintet Report found that Email 2 was harassment because it was improper and it was directed at Ms. Mirecki. Email 2 has two sections. The report deemed the “Marta” section, with its references to “reluctance” and “tem [sic] work”, harassment. However, the Quintet Report did not state that the rest of the email, directed expressly to Dr. Ginsburg, and referencing Mr. Rowntree’s patient, was harassment. Therefore, the issue of whether the inmate had been in an observation cell for nine days without intervention is not relevant, and that portion of the email should be disregarded. The portion of it found to be harassment involves only the word “reluctance” and the phrase “tem [sic] work”. The grievor was not without remorse for his tone in Email 2 and admits that he could have chosen better words.

[123] In this respect, the definition cited in Joss v. Treasury Board (Agriculture and Agri-Food Canada), 2001 PSSRB 27, applies. The word “harassment” should be used seriously and not trivialized or devalued by using it as label for “... petty acts or foolish words, where the harm, by any objective standard, is fleeting.” Ms. Mirecki herself described the phrase “tem [sic] work” as a “little poke.” Email 2’s use of the word “reluctance”, after a three-day delay during which the grievor was distraught about an inmate’s situation, is not so unreasonable as to constitute harassment.

[124] With respect to Email 3, the bargaining agent submitted that the grievor’s evidence contradicted the employer’s submissions. He testified that he had approached Dr. Ginsburg about Ms. Mirecki’s problematic conduct at meetings he chaired. He wrote the email after those approaches were unsuccessful.

[125] Although the Quintet Report states that Email 3’s comments should have been disclosed in confidence, the grievor’s testimony and the emails in evidence demonstrated that he had already attempted to resolve this issue more informally. He had observed problematic behaviour in meetings that he had chaired. He did not try to act as Ms. Mirecki’s supervisor; clearly, he was aware that he had to ask others to look into it and that he could not take action himself. The memo attached to Email 3 is a factual statement of concern. There is no element of personal attack. The email did not rise to the level of objective improper conduct or harassment.

[126] There is no evidence of an attempt to harass, intimidate, or threaten in Email 4. The grievor had been willing to try informal conflict resolution but did not feel that he could continue with it once the formal process was engaged. Ms. Mirecki’s subjective fear of the grievor’s Email 4 comments does not support a finding of abuse or harassment.

[127] Email 5 raises a good-faith workplace concern. The grievor never threatens to report the inappropriate use of the consent form. The email was sent only to Ms. Mirecki. She copied many people on her response. Mr. Rowntree then copied many people on his reply to Ms. Mirecki. The practice of copying people who did not need to know the contents of emails was not uncommon in this workplace at the relevant time.

[128] Email 6 stands alone and was found to be harassing because it was given to an inmate. To constitute harassment, a single incident must be harsh. It cannot be said that Email 6’s contents and distribution list constituted harassment; nor did the Quintet Report find as much. The employer asked the Board to rely on prejudices against inmates and against those with mental health issues. There was no proven threat or danger in this email or anything that could have led to reasonable safety concerns. The inmate was not a dangerous offender and was not transferred to the Regional Treatment Centre. He was unstable and suicidal. The only evidence was that he was a danger to himself. There was no evidence of any danger to other people, beyond bald assertions. Although what the grievor did might have been misconduct, Email 6 did not constitute harassment.

[129] With respect to the issue of condonation, there is a long-standing assumption that arbitrators also judge the employer’s conduct when considering a harassment allegation. The employer’s conduct throughout this matter was also on trial. Management was well aware of the conflict, the grievor’s behaviour, and Ms. Mirecki’s distress yet chose to do little in response over a lengthy period. If harassment is established, the penalty should be voided or reduced based on the principles of condonation.

[130] Condonation in this matter has two elements: delay in imposing discipline, and employer inattentiveness. Long delays create condonation concerns. In this case, the employer did not act in a timely manner. The date of the first email is April 8, 2011. The disciplinary interview was held 20 months later. The employer had a responsibility to take action. Instead, it waited for a harassment complaint to be made. That is not an acceptable reason for the delay, and no other meaningful rationale for it was provided.

[131] If management believed that there was harassment, as it clearly did, it had to address the harassment, whether or not a complaint had already been made. Waiting 20 months was unacceptable. The idea that management was still hopeful that it could coach the grievor, as the employer argued, strains credulity, given witness testimony. Ms. Mirecki begged management for help at that time, but received none.

[132] Management was well aware of the grievor’s communications and interactions during the period between the first and last emails, as evidenced by the managers who testified. They were inattentive to the communications that at the hearing they described as improper and harassing for a considerable time. No timely disciplinary action was imposed or follow up done with respect to the first five emails, despite the disciplinary penalties already on the grievor’s record. If each email could accurately be characterized as constituting harassment in its own right, the grievor should have been disciplined after the first one, in April of 2011. The fact that management did not act then indicated that either it did not think that the behaviour was harassment or if it did that it was callous in its disregard for Ms. Mirecki.

[133] When Mr. Tempest was asked about the risks of not addressing harassment, he said that the risks were that the harassment could worsen. People might not feel heard. Workplaces could deteriorate. Mental health could suffer. And yet, despite being aware of the potential for these harmful effects, management chose to do nothing after the Packer Investigation.

[134] The prejudice to the grievor from the delay can be inferred from the fact that he has not engaged in any objectionable behaviours since the discipline was imposed. Following the employer’s logic, had it imposed discipline after the Packer Investigation’s consideration of Email 2, there would have been no need for any further action; the other emails would never have been sent.

[135] The Packer Investigation is highly problematic in this respect. The grievor sent Email 2, and then, Ms. Packer interviewed him. He knew that he might be disciplined, but then nothing happened. He did not even know that a report was produced. An investigation with no action inevitably provides a false sense of security. Twenty months later, the employer disciplined him for the same email it had already investigated over a year earlier. The Packer Investigation condoned all the emails that came after it.

[136] It is clear from the disciplinary letter that the only mitigating factor considered was the grievor’s length of service. If other mitigating factors were not considered, then the five-day penalty was too severe. The other mitigating factors present were condonation, delay imposing discipline, and discriminatory discipline.

[137] With respect to discriminatory discipline, it is well established that similar things must be treated similarly. While in theory, professional shortcomings were not to be broadcast, copying those who were not on a need to know basis with professional concerns was an endemic practice in the workplace at that time.

[138] Ms. Mirecki copied many people on her emails. The harassment findings were based in part on the fact that emails critical of her were copied to multiple people. But everyone at the institution resorted to that common practice, including Ms. Mirecki. Only the grievor was punished for it. This is a mitigating factor. It was unfair to suspend him for five days in part for his copying practices when others were not even reprimanded for the same behaviour.

[139] In support of its arguments, the bargaining agent also cited Wm. Scott & Company Ltd. v. Canada Food and Allied Workers Union, Local P-162, [1977] 1 Can. L.R.B.R. 1 (“Wm. Scott”), Chopra v. Canada (Attorney General), 2014 FC 246, Valderrama v. Deputy Head (Department of Foreign Affairs, Trade and Development), 2019 FPSLREB 115, Turner v. Treasury Board (Canada Border Services Agency), 2006 PSLRB 58, Lloyd v. Canada (Attorney General), 2016 FCA 115, Lloyd v. Canada Revenue Agency, 2017 FPSLREB 22, Ontario (Ministry of Natural Resources) v. O.P.S.E.U. (2005), 143 L.A.C. (4th) 14, and Canadian Labour Arbitration, paragraphs 7:7, 7:67, 7:68, and 7:70.

IV. Reasons

[140] The test that has been consistently applied in disciplinary matters before the Board was established in Wm. Scott. When applying that test, the questions I must consider are as follows:

1) Did the misconduct on which the discipline was based occur?

2) Was the discipline imposed excessive?

3) If the discipline was excessive, what penalty would have been appropriate?

 

[141] In a discipline grievance referred pursuant to s. 209(1)(b) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2), the employer must demonstrate that grounds for discipline existed, as cited in the disciplinary letter.

1. Did the misconduct, on which the discipline was based, occur?

[142] The disciplinary letter states:

...

The investigation report completed by Quintet reached a conclusion of two (2) findings of harassment against you. The report stated that your behavior met the definition of harassment when you sent your co-worker sarcastic and humiliating emails, and also by giving an inmate a copy of an internal email to an inmate that erroneously portrayed her as refusing to deal with a request for medication....

...

 

[143] The disciplinary letter cited four violations of Commissioner’s Directive (CD) 060 - Code of Discipline as follows:

...

· 6(g) fails to conform to, or to apply, any relevant legislation, Commissioner’s Directive, Standing Order, or other directive as it relates to his/her duty;

· 10(b) is abusive, by word or action, to other employees, while on duty or under circumstances related to his/her duties;

· 10(e) commits any act of personal or sexual harassment, or discrimination against another staff member;

· 18(a) fails to properly safeguard all documents, reports, directives, manuals, or other information of the Service ....

...

 

A. Do the impugned emails constitute misconduct?

i. Email 1

[144] The Quintet Report found that Email 1’s sole purpose was to communicate the grievor’s displeasure that Ms. Mirecki had complained to Dr. Ginsburg. A plain-language reading of the email does not support that conclusion, which remains the case even when the plain-language reading is contextualized by the evidence heard at the hearing.

[145] I find the grievor’s explanation that the email’s purposes were to seek ongoing information from Ms. Mirecki about her cases (as he had been directed to do) and to indicate disagreement with Dr. Ginsburg’s order (and his reluctant compliance with it) considerably more probable than the conclusion reached by the Quintet Report. Although Dr. Ginsburg was merely copied on Email 1, the email focusses on his order that the grievor had to consult Ms. Mirecki before giving a clinical recommendation. Email 1 is not, on its face, primarily an expression of displeasure with Ms. Mirecki and her complaint, and so it cannot be considered harassing on that basis. The expression of displeasure and implicit criticism is directed at Dr. Ginsburg.

[146] Much emphasis was placed on the grievor’s use of the word “sadly”. I do not find this persuasive. “Sadly”, as used in the email, again on a plain-language reading, is a synonym of “regrettably” or “unfortunately”. While it is possible to read a snide tone into the single word “sadly,” it is also possible, and in my opinion more reasonable, to read it more neutrally, as a statement that the grievor regretted that there was a complaint. His statement that he had learned of his manager’s decision “sadly”, “regrettably”, or “unfortunately” cannot reasonably be considered harassment of Ms. Mirecki.

[147] As to the reference to the intended grievance, the grievor did not appear to threaten any harm or a negative outcome to Dr. Ginsburg or Ms. Mirecki as a result of the filing or outcome of his grievance. The pending grievance’s only goal that can be construed from Email 1 is that of reversing of Dr. Ginsburg’s directive. Despite the critical nature of parts of the Email 1, the reference to a pending grievance does not have any discernable malicious motivation or objective.

[148] The grievor, like all federal public service employees, has a statutorily protected right to grieve certain matters related to the terms and conditions of his employment. I have no doubt that Ms. Mirecki was sincere when she stated that the words, “I must obey”, combined with the allusion to a pending grievance, appeared threatening to her and that these words still have emotional resonance for her. It is not clear how the grievor could reasonably have anticipated this reaction. The phrase “obey now, grieve later” is a well-established term of art in unionized workplaces. Absent some evidence of malicious intent or bad faith, a statement to the effect that an employee intends to obey a supervisor’s direction but subsequently grieve it is not harassment.

[149] There is nothing inappropriate in this email’s distribution list. Dr. Ginsburg being carbon copied was appropriate, given that he was directly referenced.

[150] In short, although the email was addressed to Ms. Mirecki, its contents appear to have been primarily directed at Dr. Ginsburg, who was copied. The sarcasm that the grievor acknowledged is in the statement that Dr. Ginsburg was unwilling to issue a memorandum for the institution obliging psychologists to consult licensed nurses before sharing clinical opinions and recommendations. In my view, this slight against Dr. Ginsburg’s managerial authority, some of which was set in a red font, is not so much sarcastic as a very thinly veiled criticism of the grievor’s supervisor. While it might have been improper, it was not harassment of Ms. Mirecki.

[151] Further, the evidence before me does not allow me to conclude that the grievor was incorrect in his criticism. Ms. Mirecki testified that no one was required to speak to her before making a referral, which Dr. Ginsburg’s testimony directly contradicted. This speaks to the level of confusion with respect to the then newly created role of the mental health nurse. The grievor went on to expressly state that he would follow the direction he had received.

[152] As counsel for the employer correctly pointed out, intent is not a necessary component of harassment. While repeated sarcasm or a single instance of vicious sarcasm could rise to the level of abuse or harassment, regardless of whether this was the intended impact, I do not find that any sarcasm, criticism, or incivility evidenced in this email can accurately be characterized as harassing. This would have been my finding even had I found that the word “sadly” was used sarcastically.

[153] In making that finding, I am mindful of Arbitrator Laing’s comments in British Columbia v. B.C.G.E.U. (1995), 49 L.A.C. (4th) 193 at 242 and 243:

I do not think that every act of workplace foolishness was intended to be captured by the word “harassment”. This is a serious word, to be used seriously and applied vigorously when the occasion warrants its use. It should not be trivialized, cheapened or devalued by using it as a loose label to cover petty acts or foolish words, where the harm, by any objective standard, is fleeting....

 

[154] Beyond this, there is only the use of red fonts, bolding, and italics, as emphasis. The grievor can be reasonably inferred to have understood that his formatting, in Email 1 and elsewhere, was, at a minimum, unusual. It can be fairly characterized as excessive in this instance. While this falls short of a professional standard of communications, these formatting patterns are not, by themselves, in this single email, harassment, abuse, or discourtesy.

ii. Email 2

[155] The Packer Report (which was not shared with the grievor until long after the Packer Investigation was abandoned) found that it was improper for the grievor to attribute any reluctance to Ms. Mirecki and to make a mocking reference to her spelling error. It further found that copying several people on this correspondence could reasonably have been expected to offend Ms. Mirecki. The Quintet Report considered these findings of the Packer Report and found that because these actions were improper and were directed at Ms. Mirecki, therefore, they constituted harassment.

[156] I have no doubt that the professional concern that the grievor raised in Email 2 was sincere. Even after the passage of nine years, his genuine concern about the situation was plainly evident as he testified.

[157] The Quintet Report finding concerning Email 2’s distribution list, which was cited as one of the grounds for which the email was found harassing, is puzzling. While earlier emails in the chain had been copied to two other employees (Mr. Eastabrook and Mr. Rowntree), the grievor removed them from the distribution list when he sent Email 2. There is nothing inappropriate in the distribution list for the email. It is addressed solely to Dr. Ginsburg and Ms. Mirecki, both of whom are directly addressed in Email 2’s text.

[158] Only these few words of Email 2 are actually directed to Ms. Mirecki: “Your reluctance to respond to my info request (below) - it looks like another illustration of our deficient ‘tem [sic] work’ ...”. “tem” [sic] work is also Email 2’s subject line.

[159] The repetition of Ms. Mirecki’s spelling error, with emphatic quotation marks, is unambiguously sarcastic or mocking. It is also unquestionably unnecessary to call attention to a typographical error. To suggest that this alone rises to the level of abuse or harassment would dilute these words to the point that they would have little meaning. A single, isolated instance of sarcasm of this nature, while inappropriate, discourteous, and worthy of supervisory attention, does not render an email abusive or harassing.

[160] With respect to “reluctance”, the grievor’s testimony reflected a sincere belief that when he wrote the email, he had clinically based reasons for perceiving the inmate’s situation as urgent and unusual. He had asked Ms. Mirecki a question by email on Friday, May 13, 2011, at 9:51 a.m. He repeated the question shortly after that on the same day. Ms. Mirecki was absent for most of that day, but no evidence before me demonstrated that he knew this on either the Friday or the following Monday. His characterization of her lack of reply can reasonably be assumed to be based in part on his ignorance of her absence from the workplace.

[161] Email 2 was sent at 10:45 a.m. on Monday, May 16, 2011, a relatively tight time frame for an expectation of a colleague’s reply. That said, while the grievor’s use of the word “reluctance” might have indicated an unkind assumption on his part, given his mistaken understanding that Ms. Mirecki had been in the workplace on the Friday, it was not so unreasonable and offensive that it could properly be characterized as discourtesy, abuse, or harassment, even when considered in conjunction with the discourteous use of the phrase “tem [sic] work.”

[162] Counsel for the bargaining agent encouraged me to ignore the comments made to Dr. Ginsburg in their entirety and argued that simply by reason of them being expressly directed to Dr. Ginsburg, they could not have been harassing to Ms. Mirecki. I do not find this argument persuasive. As with Email 1, the person to whom the email’s comments were implicitly directed must be considered, regardless of the nominal addressee. Remarks made to Dr. Ginsburg could, in theory, have been implicitly aimed at Ms. Mirecki in a way that was abusive or harassing. However, no implicitly harassing or abusive content directed at Ms. Mirecki is discernable among the grievor’s remarks to Dr. Ginsburg in this email.

[163] Most of the remarks in the portion of the email directed at Mr. Ginsburg are a matter-of-fact listing of the concerns being raised. Nothing in the evidence before me suggests that these concerns were not sincere. While the grievor’s penchant for underlining is apparent, it was used in this email for the purpose for which underlining is intended: to highlight a central concern and add emphasis.

[164] The use of quotation marks around “high suicide watch” is of particular interest. This usage does not appear sarcastic. The inmate was indeed on high suicide watch, and nothing in the email or the testimony suggests that the grievor was questioning this or that he saw the inmate’s high suicide watch status as inappropriate. The grievor indicated in his testimony that he uses quotation marks for emphasis in a manner akin to underlining. The use of quotation marks in this email is consistent with that testimony.

[165] The quotation marks framing the words “good practice” are arguably meant to be read as sarcastic air quotes, but this comment appears to refer to Dr. Ginsburg alone and can also be read without sarcasm. Whether or not it is sarcastic, it is undoubtedly critical, but the criticism is of Dr. Ginsburg and Mr. Rowntree, not Ms. Mirecki, and is directly related to the grievor’s clinical concerns. The remarks made to Dr. Ginsburg do not reference Ms. Mirecki or her involvement with the inmate in any way. Therefore, the portion of Email 2 addressed to Dr. Ginsburg is irrelevant to considering whether the email was harassing to Ms. Mirecki.

iii. Email 3

[166] The Quintet Report found that the grievor had no power to declare Ms. Mirecki lacking in her professional duties. It further noted that even if she did not have the ability to decline a referral (a conclusion that the report expressly disagreed with), it should have been pointed out in confidence to her or her supervisor. For these reasons, the Quintet Report concluded that all the criticisms raised and shared with multiple people were improper and that the grievor should have known that his remarks were harmful and would cause offence. As such, the Quintet Report found that this email constituted harassment.

[167] Statements that are critical of another employee or that may damage a person’s reputation may be an element of a pattern of harassment or may constitute harassment in their own right in some circumstances. But that cannot be said of all such statements, as the Quintet Report suggests. The Policy captures that principle in its appendix entitled, “Guide for determining what constitutes harassment (“the Guide”), which establishes three categories of behaviour, as follows: “What generally constitutes harassment”, “What may constitute harassment”, and “What does not generally constitute harassment”.

[168] In the category of “What may constitute harassment”, the following behaviours are included: “Criticizing an employee in public”, and, “Statements damaging to a person’s reputation.” It is clear that the Guide presupposes a contextual analysis when determining if such behaviours constitute harassment.

[169] There are significant policy reasons for ensuring that those whose work affects others’ health and safety are not unduly restricted from raising concerns within their professional and regulatory regimes. These policy concerns include the health and safety of individuals (especially vulnerable individuals), the need to protect whistle-blowers, and the public accountability of those governed by professional organizations. Raising professional concerns may sometimes lead to embarrassment or even offence for those whose conduct is this brought under scrutiny. If a concern is raised in good faith and for a sincere professional purpose, in a manner that is proportional to the concern raised and that does not demean or belittle the individual implicated, it is unlikely that the concern raised will constitute harassment.

[170] In Email 3, the grievor raises a concern about professional practices. It was clear from his testimony that his concern was sincere and that his motivation was to draw attention to a problematic situation. His rationale for copying the Department heads whose staff participated in the Mental Health Team’s interdisciplinary meetings was reasonable; these departments were affected by the problem he identified. The email is directed to those who would have been in a position to either address the professional concern or whose staff were affected by what the grievor saw as an untenable situation. The tone is direct but professional.

[171] There is nothing inappropriate in Email 3’s distribution list. Ms. Mirecki’s November 28, 2011, email raised concerns that were critical of the grievor and that were copied to multiple individuals. She described her concerns as “clinical in nature.” This speaks to an understanding that the need to raise clinical concerns may override certain other considerations. Nothing before me suggests that the grievor’s primary motivation in Email 3 was not the well-being of those receiving healthcare services.

[172] The statement that the grievor was the chair of half the Mental Health Team meetings was factually accurate and was directly related to the memo’s content. Based on that and on the tone of the rest of the attachment, I am not convinced that Dr. Ginsburg’s reading of that phrase as sarcastic was accurate or reasonable. The email and attachment both present an overall neutral tone and do not use inappropriate language. The flashes of sarcasm evident in Email 2 are entirely absent from Email 3. There is no underlining, and quotation marks are used only to frame statements made by Ms. Mirecki, which is the purpose for which quotation marks are intended and conforms to standard usage. The use of bolding is restrained to those statements for highlighting or emphasis and does not appear to be inappropriate to typical professional correspondence. There is some italicization (“Mental Health Team Meeting” and “Institutional Mental Health Services”), but again, there is nothing remarkable about it; nor does it appear in any way sarcastic.

[173] In light of the above, it is not possible to conclude that Email 3 is inappropriate, discourteous, abusive, or harassing.

iv. Email 4

[174] Email 4 is the only impugned email that is not about inmates or clinical matters; it is about the grievor’s reaction to complaints made (and eventually discontinued) by Dr. Ginsburg and Ms. Mirecki. The grievor was replying to an email in which he was told that harassment complaints were made. The Quintet Report found that the sole purpose of Email 4 was to tell Ms. Mirecki “... what she already knows, that she is in part responsible for the disciplinary meeting and the allegation behind it, and to let her know that he is not unduly disturbed by it; in other words, to intimidate her.”

[175] The Quintet Report’s logic on this point is hard to follow. If the grievor was telling Ms. Mirecki that he was “not unduly disturbed” by the disciplinary process triggered by her complaint and that of Dr. Ginsburg, how could this be taken as evidence of intent to intimidate Ms. Mirecki? This statement could have negatively affected her only if we assume that her hidden motive in making the complaint had been to upset the grievor. I do not find that this was so. The Quintet Report’s analysis is inconsistent with the email’s text, given the complete lack of any evidence whatsoever of bad faith on Ms. Mirecki’s part throughout the entire relevant period.

[176] The first sentence of Email 4 acknowledges the untenable conflict then prevailing at the institution, a fact that all the witnesses attested to. This sentence contains nothing harassing or inappropriate. The grievor’s statement that he also believed that he was the subject of harassment does not appear on its face to be inflammatory or threatening. Based on the evidence adduced at the hearing, this statement appears to reflect, with some degree of moderation and restraint, his sincere perspective at that time.

[177] The second paragraph of Email 4 states that the grievor will withdraw from the mediation process because formal complaints were initiated. This is a straightforward statement and is reasonable on its face. While I accept Ms. Mirecki’s testimony that she found it threatening, I do not see how the grievor could reasonably have predicted her reaction. The only questionable element is the underlined word “formal”, which could be inferred to contain a degree of anger or frustration. It is not possible to conclude that a minor expression of a moderated degree of anger or frustration, especially in the context of a long-standing workplace conflict, is, in and of itself, an instance of harassment. Upon learning of the formal complaints that were made about his unprofessional behaviour, the grievor unsurprisingly withdrew from a voluntary mediation. Communicating that fact, even with an inferable element of sarcasm, anger, or frustration, does not constitute harassment in and of itself, however much it may be ill considered and poorly judged.

[178] The grievor’s predilection for excessive formatting in the form of underlining, bold or red fonts and quotation marks continues in the third and fourth paragraphs of Email 4. As with the second paragraph, I do not see how quotations around the words “disciplinary meeting” and “unprofessional behaviour” (which might convey sarcasm, although this is ambiguous, given that he also uses quotation marks for emphasis) constitute harassment, in and of themselves; nor can the three instances of underlining (“formal”, “You”, and the phrase “your and Chris’ formal complaint”) be reasonably construed as a threat.

[179] Ms. Mirecki specifically stated in her testimony that she felt threatened by the grievor’s use of the phrase, “so be it”. Again, I do not question that this was her sincere reaction, but it is hard to understand from this email why these words would have had that significance for her. The Quintet Report found that these words meant that the grievor was “not unduly concerned” by the complaints, and although this conclusion is not tenable in the context of the entire email, it does speak to the level of resignation toward circumstances that the words “so be it” typically convey. Given the choice she made, the grievor advised Ms. Mirecki of his own choice, which was to withdraw from the mediation process. It was never suggested to me that he was not entitled to make that choice or that he was prohibited from communicating it to Ms. Mirecki. It was not an unreasonable choice to make in the circumstances. There was no evidence before me that the choice was made for reasons of bad faith toward Ms. Mirecki. I have no understanding of how this phrase can objectively be perceived as a threat or of how the grievor could have reasonably anticipated that she would perceive it as such.

[180] Email 4’s fifth paragraph sets out the grievor’s theories, centring on Dr. Ginsburg, as to why a disciplinary interview is being convened and states that Dr. Ginsburg is using Ms. Mirecki. While this might have been the grievor’s belief, a statement that someone is being used by a third person is a slight against them and calls into question both their agency and judgement. “Congrats to Joel” is unquestionably sarcastic, and “Familiar move” is critical and snide, although this appears to be primarily aimed, indirectly, at Dr. Ginsburg rather than Ms. Mirecki, despite the fact that she and Ms. McLeod are the email’s sole recipients. There is nothing inappropriate in the email’s distribution list; its contents are directed to Ms. McLeod and Ms. Mirecki, its only addressees.

[181] A plain-language reading of the email does not support the Quintet Report’s conclusions. The email’s purpose was not to intimidate or threaten Ms. Mirecki, and as such, it was not harassing in that respect.

[182] This leaves the question of whether the email is otherwise discourteous, abusive, or harassing. It contains a slight (the notion that Ms. Mirecki is being used) and has expressions of frustration (and perhaps anger) in some of the formatting and in the sarcastic phrase “Congrats to Joel” and the snide “Familiar move.” Those are inappropriate and discourteous but by themselves do not constitute abuse or harassment.

v. Email 5

[183] Although the employer’s witnesses argued that signing a blank form could somehow be appropriate or necessary, it is difficult to imagine the circumstances in which this could be so. None were in evidence before me. Commissioner’s Directive 803 - Consent to Health Services Assessment, Treatment and Release of Information (“CD 803”), which was appended to the Quintet Report, provides, “Consent shall be voluntary, informed and specific to the assessment, treatment or procedure.” There is no specificity on a blank form; nor would there have been any indication of what was being consented to.

[184] There was no evidence that this was standard practice, nor was there evidence of urgent or atypical circumstances that made proceeding in this way necessary. The employer’s arguments about the hypothetical possibility of proceeding exclusively with verbal consent do not apply, given that the consent given was in writing. Ms. Mirecki testified that she would never have retroactively filled in a consent form. It must be presumed that she intended to continue with the form as it was, with little specificity.

[185] Further, both CD 803 and the witnesses’ testimonies confirm that consent can be withdrawn. Whatever the intended nature of the consent given by the inmate by signing the blank forms might have been, the grievor’s testimony that the inmate wished to withdraw his consent was uncontradicted. Email 5 relayed this desire to withdraw consent. This, in and of itself, does not appear in any way improper.

[186] Was it otherwise abusive or harassing for the grievor to send Email 5? Yet again, underlining, quotation marks, and his other excessive and unnecessary formatting habits are evident. This falls short of a professional standard of communication, but the quotation marks around “IMHI Consents”, “blank form”, and “Consent for ???” do not appear sarcastic (although the triple question marks have a critical quality). Similarly, the underlining and bolding are not sarcastic; they are used for the purpose for which underlining and bolding are intended — to draw attention to a central point. There is nothing inappropriate in the email’s distribution list; it was sent solely to Ms. Mirecki.

[187] Email 5’s discourtesies lie in the sarcastic quotation marks emphasizing the spelling error and the flawed consent (“...“tratments” [sic] he has “consented” to...”). This is highly similar to the quotation marks around the phrase “tem [sic] work” in Email 2, the comment that Ms. Mirecki described as a “little poke.” As with Email 2, this comment is not sufficiently offensive to be abuse or harassment in its own right, but it is a discourteous communication on its face.

[188] However, Email 5 does not exist in isolation. By the time it was sent, the grievor had already received Ms. Mirecki’s June 1, 2011, email, which indicated that his communications practices, including sarcastic remarks and identifying her professional shortcomings, offended her and had caused her harm. Despite knowing that his sarcasm could cause harm and offence, he sent Ms. Mirecki Email 5, with the unambiguously sarcastic comment “...“tratments” [sic] he has “consented” to...”

[189] Does the comment “...“tratments” [sic] he has “consented” to...”, along with the reference to a “serious professional violation”, constitute harassment or abuse, given that Ms. Mirecki had already told the grievor in writing that his sarcasm was among the practices that had caused her harm? While Ms. Mirecki’s June 1, 2011, email aggravates the discourtesy of the sarcasm in the email, I do not find that a lone sarcastic comment is harassment in its own right. The test for harassment is not entirely subjective; there is also an objective element. As was noted at paragraph 69 of Joss, “Mere unwelcome conduct in itself is not sufficient to support a complaint of harassment.”

[190] I have already noted that comments raising professional concerns must be subject to a contextual analysis when determining whether harassment occurred. For this email, I find that the concern raised was sincere, and it was raised without copying others. In these circumstances, raising a professional concern was not harassment, even considering the elements of discourtesy.

[191] There is unquestionable rudeness in the “...“tratments” [sic] he has “consented” to...” remark. The grievor had already been clear that he did not view the consent in question as valid. The quotations around “consented” repeat that concern crudely, without grace or collegiality. It is markedly discourteous, but it is not sufficiently serious, by itself, to be characterized as harassment or abuse. Ms. Mirecki’s understandable and reasonable distaste for the style and tone of this comment does not change that objective fact.

vi. Email 6

[192] It is easy to imagine circumstances in which providing information to an inmate could be a way of harassing or abusing a colleague working within a correctional institution. I do not find any compelling evidence that this was so in this case. There was no evidence that the inmate in question had dangerous-offender status or was otherwise dangerous within the institution. Ms. Mirecki’s recollections on this point were very vague. Dr. Ginsburg, Mr. Rowntree, and Mr. Tempest speculated generically that an inmate could have found Email 6’s language inflammatory and that harm could result from putting such information in inmate hands. There was no evidence whatsoever of any actual threat from the inmate or of a likelihood of harm that was ungrounded in generalized speculation. No measures were ever taken to protect Ms. Mirecki from any perceived threat or danger resulting from Email 6.

[193] The grievor’s recollection of the inmate was specific and uncontradicted by any other testimony. He recalled that the inmate was unstable, had a suicidal history, and was a danger to himself. The inmate was also, simply by the passage of time, already aware that his referral had not been actioned, so the information highlighted in the email was not new. The grievor testified that the email would actually have allayed the inmate’s concerns and thus calmed him, as it would have indicated follow up on a request that had not previously had a response. Even had the inmate not been copied (the action that according to the Quintet Report, was the sole reason that Email 6 constitutes harassment), Email 6 would, in any event, have formed part of the inmate’s file, to which he had a right of access. It is not possible, in this context, to state that this email was so implicitly threatening or dangerous to Ms. Mirecki that it constituted harassment or abuse.

[194] The Packer Report commented on other emails from the grievor being found on inmate files that could have damaged professional reputations. It is clear from the evidence that it was not the first time that he had shared information with or about an inmate or had made information potentially available to an inmate in a manner that the employer considered improper and inappropriate. It had happened in the context of one of Mr. Rowntree’s clients, in a manner that Mr. Rowntree described as highly similar to Email 6. There is no evidence before me that that practice, however much it might have violated an unwritten rule, had ever been previously characterized as harassment or abuse in prior instances.

[195] The employer made much of the fact that Ms. Mirecki is a physically slight woman and therefore would inevitably be less capable of fending off a physical threat than others would. The bargaining agent’s counsel objected strongly to this line of argument. It is well established that women, including those who are slender, can be highly skilled in self-defence. There was no evidence before me of Ms. Mirecki’s capabilities in this respect, beyond counsel’s speculations. I do not find Ms. Mirecki’s size or gender to be relevant to a determination of whether a threat to her existed, especially in the absence of any concrete evidence of such a threat.

[196] There was much discussion in evidence about whether the inmate’s request for a particular medication could or should have been granted. I did not accept into evidence information with respect to the properties of the specific medication the inmate requested. It was uncontested that the grievor had made a referral for sedating medication three weeks earlier and that it remained unanswered when Email 6 was sent. In the grievor’s assessment, as a psychologist, the inmate was agitated because the referral had not been answered. Although the employer might have suspected other motives for the agitation, nothing before me meaningfully challenged the bona fides of the grievor’s professional assessment. His email does not advocate for or request a particular medication. Email 6 notes that he had made a referral for “possible sedation via medication” three weeks prior and asks that “something for [the inmate’s] sedation” be provided. It then notes that the inmate’s two prior suicide attempts, as well as the inmate’s current verbalizations on this topic, are concerning. None of this evidence was contradicted.

[197] The Quintet Report found that Email 6 was harassing solely because it was shared with an inmate. As such, I have not considered its distribution list in my reasons.

[198] The testimony of multiple witnesses indicating that giving a copy of an email containing the information found in Email 6 to an inmate broke an “unwritten rule” (per the Quintet Report) and was “not done” was also uncontradicted. On this basis, I conclude that Email 6 is a serious violation of professional courtesy.

B. Analysis - failure to properly safeguard documents

[199] One of the grounds cited in the employer’s discipline letter was the failure to safeguard documents. This ground is puzzling. Safeguarding documents can be assumed to include keeping them out of the hands of those who do not have the appropriate security clearance to see them and respecting whatever confidentiality and electronic security protocols may attach to the documents in question (see, for example, D’Cunha v. Deputy Head (Correctional Service of Canada), 2019 FPSLREB 78, and Petrovic v. Deputy Head (Correctional Service of Canada), 2015 PSLREB 16). It would also be reasonably assumed to include making sure that documents are not recklessly destroyed, negligently disposed of, or inappropriately stored.

[200] The safeguarding of documents in this case was raised in the context of two issues: copying emails to those who might not have needed to know their contents and sharing an email with an inmate.

[201] On the issue of copying emails, Emails 1, 2, 4, and 5 were copied only to those directly addressed in their texts. The grievor provided a rationale for his copies on Email 3 that is reasonable, as was already reviewed in the reasons section for Email 3.

[202] Email 6 contained information to which the inmate was legally entitled, which was available to him through an access-to-information request. The true concern was not that the information was revealed to someone unentitled to it. As the grievor noted, had the information been communicated only in a conversation, even that would have had to be documented on a file to which the inmate would have had access. The problem was the discourteous manner in which the information was revealed, which was without Ms. Mirecki’s knowledge and before the issues could be raised and addressed within the Department, according to the normal channels. Again, the testimony that this broke an unwritten standard of professional courtesy was uncontradicted. Therefore, although Email 6 was misconduct, it was not misconduct related to safeguarding documents. As such, no misconduct related to safeguarding documents was proven on the facts.

C. Does the evidence reveal a harassing course of conduct?

[203] It is well established that the grounds cited in a disciplinary letter cannot be enlarged or amended (although an employer may withdraw some of these grounds if it chooses), even if the facts suggest that they could or should have been.

[204] It is clear that the employer’s discipline, as outlined in the disciplinary letter, was based on the findings of the Quintet Report. The Quintet Report’s author considered many emails in turn and made a determination as to whether they were, individually, harassing. The Quintet Report found that only the six impugned were harassing in their own right, as single incidents.

[205] For reasons that are entirely unclear, the Quintet Report never considered whether the many emails it examined (both those found individually harassing and those found merely improper) represented a pattern of behaviour or a course of conduct that was harassing in its entirety, as a continuum.

[206] Small irritants, like drops of water, may be scarcely noticeable. Isolated incidents of minor incivility, sarcasm, ill-chosen words, and careless unkindness are generally not, by themselves, harassment, much as they may be uncivil or improper. But a steady succession of such irritants, flowing relentlessly and randomly over a considerable period of time, may become unbearable and thus cause the harm that harassment policies exist to prevent. This principle is well recognized in the case law, including that cited by the parties, which stresses that harassment is more often found in a course of conduct than in a single incident.

[207] Establishing harassment based on a course of conduct requires that the full course of conduct, or something close to it, be placed into evidence. A course of conduct is not proven by putting forward a choice few of the worst incidents, especially when many of the incidents, on their own, are relatively unnoteworthy, as is so here.

[208] A harassing course of conduct is similarly not proven by evidence of how an alleged harasser behaved to third parties in matters beyond the scope of the harassment allegations at issue. The extensive evidence about Dr. Ginsburg’s and Mr. Rowntree’s personal experiences with the grievor is mostly irrelevant because the harassment complaint resulting in discipline was made by Ms. Mirecki alone.

[209] Dr. Ginsburg and Mr. Rowntree were both truthful, credible witnesses. However, there is a difference between credibility and reliability. The reliability of even a highly credible witness may be compromised by a number of different factors affecting their ability to observe, interpret, recount, and recall (see, for example, Regina v. Morrissey, [1995] 22 O.R. (3d) 514). Both witnesses had their own deeply entrenched and long-standing personal conflicts with the grievor, which might have prevented them from reading his emails neutrally or objectively.

[210] Dr. Ginsburg’s animosity for the grievor was evident in his testimony. Although Mr. Rowntree was more measured, it is clear that his interactions with the grievor had also been strained for some time, in both cases well before Ms. Mirecki’s arrival in the workplace. Their interpretations of the impugned emails appear to have been markedly coloured by those pre-existing conflicts. In this respect, I note Dr. Ginsburg’s insistence that the inmate at the centre of the issues in Email 2 was receiving “treatment” through five-minute visits from him and the grievor, communicating through a food slot. I also note Mr. Rowntree’s insistence that consent could hypothetically be given by signing a blank form. I further note the marked certainty of the negative interpretations that they both gave in testimony to relatively innocuous or ambiguous words and phrases (such as “sadly”) in the impugned emails.

[211] I have already found that nothing in Emails 1 and 3 was worthy of discipline. Do Emails 2, 4, 5, and 6, taken together, constitute a harassing course of conduct? Because both counsel made submissions in that respect, and counsel for the bargaining agent appeared to have conceded that a harassing course of conduct could have formed grounds for discipline in this matter, despite my earlier conclusions that the employer did not put forward a harassing course of conduct as grounds for discipline, I will consider the issue of whether these four emails could have constituted a harassing course of conduct.

[212] The sequence of the four emails that constitute misconduct is as follows:

1) Email 2 of May 16, 2011 (“tem [sic] work” and sarcastic quotation marks);

2) Email 4 of May 30, 2011 (slight against Ms. Mirecki, sarcasm, and implicit anger);

3) Email 5 of November 22, 2011 (“tratments” [sic] he has “consented” to); and

4) Email 6 of December 9, 2011 (inappropriately shared with an inmate).

 

[213] The two emails that are most similar in content and style are Emails 2 and 5, which rudely repeat Ms. Mirecki’s typographical errors with emphatic quotation marks. These two emails are separated by more than six months, which does not suggest a continuum. Email 4 is different from Emails 2 and 5; it contains an expression of anger that seems primarily directed at Dr. Ginsburg, although he is not a recipient; it also contains a slight against Ms. Mirecki, in the statement that she is being used. It is worth noting that this is the only email about the conflict-resolution process and not about professional or clinical matters. Email 6, inappropriately shared with an inmate, is again different in the character of its misconduct from the other three emails.

[214] Along a timeline, there are two clear pairs of emails among the four just mentioned: Emails 2 and 4, written within 14 days of each other, and, almost six months later, Emails 5 and 6, written within 17 days of each other. Within these pairs, there is little similarity. The incidents of discourteous conduct in the four emails are all relatively minor examples of sarcasm or incivility, with the exception of Email 6.

[215] When establishing a harassing course of conduct or pattern of behaviour, there is typically some similarity in character among the incidents comprising the pattern, and they are typically at least somewhat proximate in time. While this is not to say that incidents used to establish a course of harassing conduct must be identical or similar in nature, the lack of similarity among some of the incidents in this case, and the lapses of time between the similar ones, do not support a finding of a harassing course of conduct. Even if the flawed professionalism of Email 1 (April 8, 2011) is included in the analysis, the result does not change. Had more such incidents been before me as grounds for discipline, or had the incidents been more proximate in time, my conclusion might have been different.

[216] Even setting aside the condonation issues that arise with respect to some of these emails, when considered collectively they do not constitute a harassing pattern of behaviour or course of conduct.

D. Summary of the misconduct proven on the evidence

[217] To summarize, the following are the aspects of the impugned emails that constitute discourteous communications:

· Email 2 - “tem [sic] work”, and sarcastic quotation marks;

· Email 4 - slight against Ms. Mirecki, implicit sarcasm and anger, and excessive formatting;

· Email 5 - “tratments” [sic], sarcastic quotation marks and other excessive formatting; and

· Email 6 - sharing an email with an inmate that cited professional concerns.

 

[218] As such, I find that some of the misconduct cited in the employer’s discipline letter occurred in the form of these discourteous emails.

2. What disciplinary penalty is appropriate?

[219] It is a well-established principle that when disciplinary grounds are narrowed, the appropriateness of the penalty must be reconsidered. That principle applies in this case. The disciplinary letter included the following disciplinary grounds:

...

· 10(b) is abusive, by word or action, to other employees, while on duty or under circumstances related to his/her duties;

· 10(e) commits any act of personal or sexual harassment, or discrimination against another staff member ....

...

 

[220] These grounds are examples of infractions constituting violations of paragraph 9 of Commissioner’s Directive 060 - Code of Discipline, which reads as follows:

9. Relationships with other staff members must promote mutual respect within the Correctional Service of Canada and improve the quality of service. Staff are expected to contribute to a safe, healthy and secure work environment, free of harassment and discrimination.

 

[221] Commissioner’s Directive 060 - Code of Discipline states as follows at paragraph 3: “Some examples of infractions are given in a list below each specific rule. These lists are not exhaustive.”

[222] In arriving at a consideration of an appropriate disciplinary penalty for the grievor’s discourteous behaviour that was contrary to Commissioner’s Directive 060 - Code of Discipline, the nature of the misconduct must be considered, along with relevant mitigating factors. Discourtesy is a less-grave form of misconduct than harassment. The employer considered the grievor’s length of service. The bargaining agent submitted that the employer should have considered these three additional mitigating factors: condonation, discriminatory discipline, and delay of discipline. An additional relevant consideration is the grievor’s remorse (or, as the employer has argued, lack of remorse) with respect to his misconduct.

[223] The grievor was convened to a fact-finding interview as part of the Packer Investigation of Email 2. The employer then discontinued that investigation. As the Federal Court noted in Chopra, at paras. 195 to 198:

[195] ... a long delay in imposing discipline may entitle an employee to assume that their conduct has been condoned by their employer, where no other warning or notice of potential discipline is given. Allowing employees to believe that their behaviour has been tolerated, thereby lulling them into false sense of security only to punish them later, is unfair to employees ....

[196] In assessing whether discipline ought to be set aside because of delay, arbitrators consider three main factors. These are the length of the delay, the reasons for the delay, and any prejudice caused by the delay ....

[197] Where there has been a delay in imposing discipline, an arbitrator is required to balance the employer’s explanation for the delay against whatever prejudice has been suffered by the grievor as a result in order to reach a “just and equitable resolution of those competing interests” ....

[198] The arbitrator in the Lawrie Grievance went on to observe that just as a grievor must pursue his or her grievance rights under a collective agreement in a timely fashion, “so may an employer lose its right to discipline an employee for alleged acts of misconduct because of delay in exercising that right” ....

 

[224] The only explanation offered for the delay in imposing discipline for Emails 2, 3, and 4 was that the employer remained optimistic that the grievor might respond to informal or non-disciplinary approaches. This argument is not consistent with the evidence. Ms. Mirecki had stated in her June 1, 2011, email that she was subject to ongoing harassment. By June 21, 2011, Dr. Ginsburg had stated in writing that he could not guarantee a harassment-free workplace. Dr. Ginsburg testified that he believed that addressing the objectionable content of the impugned emails informally with the grievor would have been a “disaster”, a comment that cannot be squared with employer optimism. None of this is consistent with an employer belief in the grievor’s potential for a changed communications style, without disciplinary intervention.

[225] After the McLeod mediation, in the wake of which Dr. Ginsburg resigned, not even a tenuous argument of optimism for improvements in the grievor’s discourteous style remains. Approximately one month after the end of the McLeod mediation, the grievor typed up Email 5, still operating under the mistaken belief that the style of Email 2 (by that point more than six months in the past and the subject of a discontinued investigation) did not merit discipline.

[226] The delay in imposing discipline appears to have been largely rooted in the employer’s mistaken belief that a formal complaint was necessary before potential harassment could be investigated, a belief that placed a heavy burden on the shoulders of those who believed that they had been harassed. Even Ms. Mirecki appeared to have abandoned hope that management would take any action with respect to the sarcasm recurring in Email 5, despite the fact that she had clearly outlined the harm that style of communication was causing her in her June 1, 2011, email.

[227] Ms. Mirecki did not make her harassment complaint until Email 6 was sent. She knew that it “would stick” because an inmate had been copied on it. It appears reasonable to conclude that both she and the grievor shared a common understanding that the employer would take no action with respect to “pokes” and minor sarcasm. That understanding was fostered by the employer’s failure to take disciplinary action in an attentive and prompt way with respect to Email 2.

[228] Waiting for an employee’s harassment complaint is not an acceptable rationale for a delay in taking action with respect to workplace harassment. The delay condoned Email 2. It prejudiced the grievor in that it lulled him into a false belief that Email 2’s style would not attract discipline. That prejudice is evident in Email 5, which replicates the misconduct of Email 2 in an almost mirror image (both emails sarcastically highlight Ms. Mirecki’s spelling errors with quotation marks and employ similar excessive formatting). Had the grievor been disciplined in a timely way after Email 2, the misconduct in Email 5 might never have occurred.

[229] The fact that the grievor had received, as of the date of Email 5, one prior 2010 reprimand for the “persistent use of negative communication with/to supervisor and co-worker which created a negative environment in the workplace” does not change this conclusion. It is unquestionable that the employer was, as of that point, well aware of his propensity for discourteous communications. The testimonies of Dr. Ginsburg, Mr. Rowntree, and Mr. Tempest all spoke to this awareness. This is all the more reason that a prompt response, whether informal or otherwise, would have been appropriate when discourteous behaviour surfaced once more.

[230] I do not find that the same principles of condonation apply to Emails 4 and 6. The misconduct in them is different in its discourteous nature from the misconduct in Emails 2 and 5. Both Emails 4 and 6 differ from what Ms. Mirecki described as a “poke” at a spelling error. Email 4 contains a slight against Ms. Mirecki’s agency and judgement as well as implicit sarcasm and anger. Email 6 breaks an unwritten rule with respect to copying practices and inmates.

[231] While the excessive formatting in Emails 4 and 6 might have been condoned by the employer’s failure to take prompt action with respect to similar formatting in Email 2, none of the other more significant aspects of discourteous communication in Emails 4 and 6 is similarly condoned by the employer’s failure to respond to Email 2 in a timely way. That failure condoned Email 5’s discourtesies; it did not create a carte blanche for the grievor to behave in whatever discourteous way he thought suited his purposes from that point forward until discipline was finally imposed.

[232] Many of the bargaining agent’s arguments about discriminatory discipline related to issues concerning email distribution lists are rendered moot by my findings. Given those findings, the bargaining agent’s delay in discipline arguments are relevant only to Email 4, dated May 30, 2011. There was no evidence before me indicating that this email was part of the Packer Investigation. Ms. Mirecki made her complaint on January 10, 2012. While that delay is at the long end of the spectrum, it is not unconscionable in the context of the facts noted earlier, which involved a review of the grievor’s communications over an approximately eight-month period. The length of time for the investigation to be completed was not unreasonable, given the scope of the allegations at issue.

[233] I do not think that the grievor’s indication that he would send some of the impugned emails again indicates that he is without remorse for his tone in some emails. With the exception of Email 4, all the impugned emails raised professional concerns. He appears, over time, to have come to an understanding that elements of his communication tone and style were inappropriate. He regrets his tone and does not like the style that he sees in some of his emails; it is fair to conclude that if he were to send any of the impugned emails again, he would change his tone and style. To conclude otherwise would make little sense.

[234] It is equally clear that the grievor’s professional and clinical opinions, as expressed in the impugned emails, have not changed. It may reasonably be inferred that this is why he would raise the same concerns again, if they were to arise. While it is equally clear that his colleagues do not always share his opinions, disagreement among professional practitioners is not discourtesy in and of itself. A reversal of a professional opinion arrived at in good faith is not a requirement for demonstrating remorse.

[235] The grievor did not testify to any remorse with respect to having copied Email 6 to an inmate.

V. Conclusion

[236] For the reasons stated earlier, the relevant evidence before me does not, by itself, support findings of abuse or harassment. However, the conclusions that I have reached do not mean that Ms. Mirecki’s harassment concerns or the harms she reported experiencing were therefore necessarily unreasonable or groundless. My conclusions might have been different had the full history of the grievor’s many communications with Ms. Mirecki been before me as a pattern of behaviour or course of conduct.

[237] The documentary evidence and testimony referenced aspects of the grievor’s conduct toward Ms. Mirecki that are of highly serious concern. She noted that at a certain point, the grievor stopped replying to her standard greetings, such as, “Hello.” As referenced in the case law submitted by the employer, giving someone “the silent treatment” may constitute harassment in certain circumstances. Ms. Packer, as quoted in the Quintet Report, noted that Ms. Mirecki had broken down in tears shortly after Ms. Packer interviewed her, which was related to the stress of the ongoing conflict. That, along with Ms. Mirecki’s earlier panic attack after an interaction with the grievor, might well have merited prompt exploration by management to determine the extent to which the grievor’s conduct was linked to the impact Ms. Mirecki experienced. Instead, the uncontradicted evidence was that Ms. Mirecki was effectively told to figure out how to deal with the situation herself. While this was not the main issue before me, if it was indeed the case, it is truly regrettable.

[238] Further comments within the contemporaneous documentation about having to prove harassment “beyond a reasonable doubt” and the employer being able to intervene in harassment circumstances only after a complaint has been made do not reflect favourably on the harassment response and conflict resolution processes in place at that time or on the employer’s then understanding of what constitutes harassment. Hopefully, with the passage of time, this has changed.

[239] The employer’s grounds for discipline, as outlined in the disciplinary letter, were limited to the impugned emails. None of them, individually, supports a finding of abuse, harassment, or a failure to safeguard documents. Some of the impugned emails, as noted earlier, do support findings of misconduct for discourteous communications, in violation of Commissioner’s Directive 060 - Code of Discipline.

[240] With respect to Email 4, a one-day suspension for discourteous communications is appropriate. With respect to Email 6, a three-day suspension for an email that was outside of the norms of professionally courteous communications, in that it was copied to an inmate without Ms. Mirecki’s knowledge, which violated the acknowledged norms of professional conduct, is appropriate. These penalties take into account the grievor’s prior reprimands and his lack of remorse for Email 6.

[241] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

VI. Order

[242] The discipline is reduced to a four-day suspension for discourteous communications.

[243] The employer shall reimburse the grievor the equivalent of one day of salary and any equivalent benefits, plus interest, less the appropriate statutory and union dues deductions. The grievor shall be paid interest at the rates for pre-judgement and post-judgement interest set out under the Federal Courts Act (R.S.C., 1985, c. F-7).

[244] I will remain seized of this matter for 120 days after the date of the decision, should any issues arise in the calculation of the above.

February 20, 2023.

Edith Bramwell,

a panel of the Federal Public Sector

Labour Relations and Employment Board