[1]           This is a grievance alleging that the Employer discharged the grievor without just cause, contrary to the provisions of the collective agreement, on the basis of comments the grievor made to or in the presence of another employee, who is Métis.

[2]           A second grievance regarding the Employer’s decision to place the grievor on home assignment pending investigation of a complaint about the comments was not pursued, without prejudice to the position the Union may take in any other matter or proceeding.

[3]           The grievor is a 63-year-old woman who, prior to the termination of her employment, was employed at the Employer’s Western Waste Management facility as a procedure writer. At the time of the events that led to the termination of her employment, the grievor had 18 years’ service with the Employer and had never been disciplined.

[4]           During the week of January 10, 2022, the grievor was in the workplace cafeteria talking to another procedure writer, Jennifer House.  Ms. House had started to work for OPG as a temporary employee on January 10, 2022, but she and the grievor were already well acquainted as they had worked together when Ms. House was employed by OPG in 2018 and then again for a few months in 2020. During the week of January 10, 2022, the grievor was acting as Ms. House’s front-line supervisor as she had been temporarily “stepped up” to that role.

[5]           During the January 10, 2022 conversation in question, Ms. House shared with the grievor that she was a citizen of the Métis Nation of Ontario (“Métis Nation”) and that her spouse was First Nations.  According to Ms. House, the grievor responded by telling Ms. House that she should “play the Indian card” in order to obtain a permanent position with OPG.  The grievor does not dispute that she said something along those lines.

[6]           The Union submits that the grievor’s intention in making the statement in question was not to offend, but to inform Ms. House, albeit in a clumsy and inappropriate way, that OPG has Equity, Diversity and Inclusion initiatives, such as its Indigenous Opportunities Network, to hire more racialized and Indigenous employees and that Ms. House could avail of such initiatives. 

[7]           Ms. House responded to the grievor’s “Indian card” comment by saying that she was happy with her temporary position and did not want a permanent one.

[8]           During the same conversation, the grievor went on to make a comment about a Deep Geologic Repository (“DGR”), which had been proposed to store nuclear waste on the Bruce nuclear site, but which was not going ahead, because the local Indigenous community had voted against it. 

[9]           Specifically, in 2013, OPG had committed to the Saugeen Ojibway Nation (“SON”) that it would not build the Deep Geologic Repository at the Bruce site without SON’s support, which amounted to a requirement for SON consent. There were also agreements in place with the Historic Georgian Bay Métis Community and the Métis Nation of Ontario.  However, the DGR was only contingent upon the agreement of the Saugeen Ojibway Nation.  In early 2020, members of the SON voted overwhelmingly to reject the proposal and so the Deep Geologic Repository did not go ahead.

[10]        However, at the time of her January 10, 2022 conversation with Ms. House, the grievor was apparently under the misapprehension that the Deep Geologic Repository in question had not gone ahead because the Métis Nation had voted against it.  According to the complaint that Ms. House would later file with the Employer, the grievor said to Ms. House that the Deep Geologic Repository should “never have been allowed to be decided by a binding vote” and that the Employer had “spent a lot of money courting the Métis Nation for the DGR project.” 

[11]        Ms. House (apparently also unaware that it had not been the Métis Nation, but a different Indigenous organization that had voted against the DGR) felt that she was in an awkward position because she was getting work direction from the grievor during the week in question.  In the circumstances, Ms. House essentially agreed with the grievor about the vote and also made the comment that there were a lot of internal politics in the Métis Councils.  When she went home that night, Ms. House was very upset because she felt that she had “thrown her Nation under the bus”.

[12]        However, Ms. House did not say anything to the grievor about the fact that she was offended or upset by her January 10, 2022 comments.

[13]        In February 2022, the grievor made another comment on two separate occasions that upset Ms. House.

[14]        During the first week of February, Ms. House and the grievor were in the workplace cafeteria when a TV program or announcement about Black history month came on.  According to Ms. House’s complaint, the grievor remarked, “Why don’t we get a white history month?”  Ms. House left the cafeteria without saying anything.

[15]        The grievor asked the same question a couple of days later in the presence of Ms. House and some other employees, again in the cafeteria and in response to a TV announcement about Black history month. According to Ms. House, after asking the question on that second occasion, the grievor turned and looked at her directly and said, “I’m not prejudiced,” to which another employee who was present replied, “We know you’re not.” 

[16]        Ms. House was extremely upset about the grievor’s comments and began to work from home as much as possible to try to avoid contact with the grievor.  In early March 2022, Ms. House raised her concerns about the grievor’s comments with a member of management who suggested that she file an internal human rights complaint.  Ms. House did so on March 9, 2022, alleging that the grievor had harassed her on the basis of ancestry by making the above-noted comments. In addition, Ms. House alleged that the grievor had not been providing her with meaningful work in an attempt to undermine Ms. House’s reputation within the company. 

[17]        Ms. House initially advised the Employer that “this most difficult process” had taken a toll and that she would be resigning as a result.  Ultimately, however, Ms. House decided to remain in her temporary position with OPG and was permitted to continue working from home, so that she would not have to encounter the grievor in the workplace.

[18]        The internal investigator who investigated the complaint found both Ms. House and the grievor to be forthright and credible.  Although there were some minor discrepancies, Ms. House’s and the grievor’s accounts of what had been said were largely consistent.  On that basis, the investigator found that the comments had been made. 

[19]        One discrepancy worth noting is with respect to the “white history month” comment. 

[20]        In her first conversation with a member of management about the grievor’s comments, in her written complaint, and during her March 2022 interview by the investigator, Ms. House was consistent that the question the grievor asked in the cafeteria in February 2022 was “Why don’t we get a white history month?”  Ms. House also provided the Employer with screenshots of messages that she apparently sent to some friends around that time about the grievor’s “black history month” comments.  (The screenshots themselves were not available at the hearing.)

[21]        However, when the grievor was interviewed, she told the investigator that what she had actually said was, “What about white lives matter?”  She did not dispute that her comment had been made in response to a TV program about Black history month.  After being informed that the grievor had admitted to making a “white lives” comment, Ms. House was apparently unsure as to what had been said.  Based on the grievor’s admission and Ms. House’s uncertainty, the investigator made a finding that the grievor made the “white lives” comment.

[22]        However, the Union submits, and I agree, that, based on the evidence, it is more likely that the grievor made the “white history month” comment.  Ms. House was consistent from a very early stage that that is what the grievor said.  Also, it makes more sense that the grievor would have reacted to a TV announcement about Black history month by making a comment about “white history month”.  Asking “Why don’t white lives matter?” would have been a non-sequitur.  Accordingly, I find that the comment the grievor made on two occasions in February 2022 was, “Why don’t we get a white history month?” or words to that effect.

[23]        That said, nothing really turns on which of the two comments was made.  The Union and the Employer acknowledge that the two comments are similar and that, for the purposes of this case, it does not really make a difference which of the two comments was made by the grievor. 

[24]        Ultimately, the investigator concluded that the grievor’s “Indian card” comment constituted harassment on the basis of race, ancestry and/or place of origin. However, she found that neither the grievor’s comment about the Métis Nation and the Deep Geologic Repository nor her “white lives” question contravened human rights legislation or policy.  Rather, the investigator found that those two comments contravened the Employer’s Code of Business Conduct on the basis that they did “not align” with OPG’s commitment to “build trust and support the social and cultural fabric of the communities where we work, live and serve.”

[25]        As for the allegation that the grievor had failed to provide Ms. House with meaningful work, the investigator found that it was unsubstantiated, because the grievor was not responsible for assigning Ms. House work during the period in question.

[26]        The Employer took Ms. House’s complaint that she had been harassed on the basis of her Indigenous ancestry very seriously.  At the hearing, the Employer explained how important reconciliation with Indigenous communities and persons is to OPG.  In furtherance of that commitment, and in response to one of the Calls to Action of the Truth and Reconciliation Commission, OPG launched its first Reconciliation Action Plan in 2021, which is intended to guide its engagement and work with Indigenous communities, businesses and organizations.

[27]        Following receipt of the investigator’s report, and after conducting its own disciplinary interview of the grievor, the Employer decided to terminate the grievor’s employment for cause, effective May 18, 2022.  Its termination letter states in relevant part:

[28]        When she was apprised of Ms. House’s harassment complaint in March 2022, the grievor responded that she had no idea that she had offended Ms. House and that she was shocked and “deeply offended” by the complaint.  She said a few times that she wished that Ms. House had spoken to her directly instead of filing a complaint, and questioned whether that was not in fact required under the Employer’s harassment policy.  More than once, the grievor attempted to justify her comments by saying that she thought she was talking to a friend.  The grievor also questioned why Ms. House had told her about her ancestry if she was “sensitive” about it.

[29]        At the same time, during the March 2022 investigation of the harassment complaint, the grievor said that she felt “terrible” that Ms. House felt the way she did, that it was never her intent to offend her and that she would have apologized if she had known how Ms. House felt. The grievor said that it was well known that OPG wanted to diversify its workforce and that she had been under the impression that Ms. House was looking for a full-time position, which was the reason for her comment.  The grievor had previously acted as an employment reference for Ms. House, when she was seeking employment with another employer, and had given her an excellent reference.    

[30]        The grievor maintained that there was nothing wrong with her comments about the Deep Geologic Repository and the Métis Nation because OPG did spend a large sum of money on the DGR proposal to the Métis Nation. The grievor also said that she could not see what was wrong with the “white history/white lives” comment.  During the investigation of the harassment complaint, the grievor said:

[31]        The grievor also said that her intention was to state that she wished she could publicly display her heritage as others do.  She said that her question was rhetorical and was not directed at Ms. House.

[32]        During her May 2, 2022 disciplinary interview, the grievor acknowledged that her suggestion that Ms. House “play the Indian card” was not in line with OPG’s expectations that employees treat others with respect and dignity.  The grievor also said that she wanted to apologize to Ms. House for her comments.  On May 20, 2022, two days after she was discharged, the grievor provided the Employer with a written apology that she asked be provided to Ms. House.  It stated:

[33]        In the case at hand, the Union takes the position that the Employer lacked just cause to discharge the grievor.  The Union acknowledges that the grievor’s “Indian card” comment could be “justly criticized” by the Employer.  However, it submits that the Employer ought to have educated the grievor, not terminated her, particularly in light of the grievor’s 18 years of exemplary, discipline-free service.  It seeks an order substituting a non-disciplinary letter of expectation for the discharge and requiring the Employer to reinstate the grievor to her former position and to make her whole for all losses.

[34]        The Employer maintains that racist conduct of any kind is extremely serious and cannot be tolerated in today’s workplaces.  It submits that the arbitral approach to racist conduct in the workplace has evolved and that any finding that an employee has made racial slurs warrants the most serious penalty of discharge, even for a first offence and regardless of the length of the employee’s seniority.

[35]        The parties did not call viva voce evidence in this case.  Rather, the case was argued by way of written and oral submissions on the basis of an extensive documentary record.  Although I have carefully considered the parties’ submissions in their entirety, I will not repeat them here, except to the extent necessary to explain the reasons for my decision.

[36]        It is well established that, in discharge cases, the first issue to be determined is whether the grievor’s conduct warranted some level of discipline.  If so, the question becomes whether discharge is the appropriate penalty in all of the circumstances.  The Employer bears the onus of proving that it had just cause for the particular disciplinary penalty imposed.

[37]        It is clear that at least one of the grievor’s comments constituted misconduct, which justified a disciplinary response by the Employer.  In particular, I find that the grievor’s suggestion that Ms. House “play the “Indian card” to get a permanent position with the Employer was insulting and offensive on the basis of ancestry (Indigeneity) and was therefore disciplinable. 

[38]        I agree with the Employer that “play the Indian card” is evocative of the pejorative expression “play the race card”.  Underlying that phrase is the notion of racialized people illegitimately alleging racism in a manipulative or strategic manner in order to gain a benefit.  (See Correia v. York Catholic District School Board, 2011 HRTO 1733, at paras. 67 to 70, and the caselaw cited therein.) 

[39]        That commonly understood meaning of the phrase “play the race card” did not really apply to the grievor’s conversation with Ms. House, because the grievor was not suggesting that Ms. House allege that she had experienced racism in order to gain a benefit.  Rather, based on the evidentiary record before me, I accept that the grievor was genuinely trying to suggest that Ms. House avail of OPG initiatives to increase the number of Indigenous employees in its employ. 

[40]        I say “genuinely” because I do not agree with the Employer that the grievor was implying that Ms. House could get a job based solely on the fact that she is Métis or that she was somehow undeserving or unqualified for a permanent job.  There is insufficient evidence to support that interpretation.  On the contrary, the evidence establishes that the grievor recognized that Ms. House was a strong performer who was very good at her job. 

[41]        Nonetheless, the grievor is responsible for her words.  By using the phrase “play the Indian card”, the grievor invoked the idea of Ms. House illegitimately using her Indigeneity in an exploitative manner as a way of extracting a benefit from OPG.  It is the suggestion of illegitimacy and/or manipulation that makes the phrase objectively offensive on the basis of race and/or ancestry.  Moreover, the grievor knew or ought to have known that her words were inappropriate given the training she had received from the Employer on Indigenous Relations and the Code of Business Conduct, as well as Bystander training.  This comment constituted disciplinable misconduct on the part of the grievor.

[42]        However, I find that the grievor’s comments about the Deep Geologic Repository (“DGR”) and the Métis Nation of Ontario did not.

[43]        As noted above, Ms. House alleged that, during their January 10, 2022 conversation, the grievor said that OPG had spent a lot of money courting the Métis Nation for the DGR project and that the fate of the project should never have been allowed to be decided by a binding vote.  According to Ms. House, the grievor also said that allowing the Métis Nation to vote on the issue cost the region the DGR. 

[44]        During the investigation of the complaint, the grievor acknowledged saying that OPG had spent a large sum of money educating the Métis Nation on the storage of nuclear waste, but denied saying that allowing the Métis Nation to vote cost the region the DGR. The grievor said she had been trying to express why OPG needed the DGR to store nuclear waste.

[45]        As noted above, the proposed DGR did not go ahead because the Saugeen Ojibway Nation – not the Métis Nation – voted against the proposal.  However, the issue to be determined at this stage is not the accuracy of the grievor’s beliefs but whether her comments constituted disciplinable misconduct.

[46]        The investigator found that the grievor’s and Ms. House’s evidence was consistent and, on that basis, concluded that the grievor had made the statements, as alleged.  The investigator found that the comments were not discriminatory or harassing on the basis of Indigeneity and did not violate human rights legislation or policy.  However, she found that the grievor’s comments did constitute a violation of OPG’s Code of Business Conduct because they were “not in alignment” with the stated organizational commitment to “build trust and support the social and cultural fabric of the communities where we work, live and serve.” 

[47]        The Employer advances that position in this case before me and further contends that the grievor’s “inappropriate comments” constituted personal harassment of Ms. House and created a poisoned work environment for her.  The Employer submits that the grievor’s actions were “antithetical to its pursuit of reconciliation efforts with Indigenous communities and persons and commitment to provide all employees with a respectful and harassment-free work environment.”

[48]        In arguing that the grievor’s comments about the Métis Nation and the Deep Geologic Repository were disciplinable, the Employer places great emphasis on how upset Ms. House was about them.  However, the mere fact that the complainant was upset and offended by what the grievor said is not a sufficient basis to find that the grievor engaged in conduct for which she could be disciplined. The blameworthiness of the grievor’s conduct needs to be determined on an objective albeit contextual analysis. 

[49]        As the Employer’s own investigator found, the grievor’s comments about the Métis Nation and the DGR were not disparaging or inflammatory on the basis of race or ancestry. In the context of a private conversation with a work colleague, the grievor was merely expressing her opinion on the decision to allow the important matter of whether the DGR would proceed to be decided by a binding vote.  I am not persuaded that there was anything inappropriate about that.  As the Union points out, the problem of where and how to store nuclear waste is one in which the grievor has a legitimate interest because it affects the long-term future of the company and her workplace.  Moreover, it was confirmed at the hearing that there is no rule prohibiting employees from discussing such matters in private conversations between themselves. Employees may disagree about such topics and even feel strongly about them.  But that does not mean that employees are forbidden from expressing their opinions to one another, provided that they treat one another with dignity and respect.  In the case at hand, I am not persuaded that the grievor’s comments about the decision not to support the DGR were harassing or disrespectful to Ms. House as an Indigenous person.

[50]        In my view, there is a big difference between disparaging individuals or communities on the basis of their Indigeneity and merely disagreeing with or even criticizing the policies or decisions of an organization that happens to be Indigenous.  The Employer is certainly entitled to discipline employees for making comments in the workplace that demean or disparage individuals or communities on the basis of race or ancestry.  In my view, however, the Employer was not entitled to discipline the grievor for expressing her disagreement, during a private conversation with a work colleague, with what was effectively a political decision not to support a particular public works project, especially since that decision affects others in the grievor’s community.  The fact that the decision in question happened to have been taken by an Indigenous organization does not alter that fact.

[51]        Finally, I come to what I have found to be the most challenging part of this case, which is determining whether the grievor’s comment about “white history month” constituted disciplinable misconduct. 

[52]        As noted above, the Employer does not allege that the grievor’s “white history/white lives” comments were discriminatory or harassing on human rights grounds, but it does allege that they constituted personal harassment of Ms. House within the meaning of the Occupational Health and Safety Act, R.S.O. 1990, c O.1 (“OHSA”), which is the occupational health and safety legislation that applies in this workplace, and created a poisoned work environment for her.

[53]        “Workplace harassment” is defined in the OHSA as a “course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.”  It is not clear to me that making the “white history month” comment twice, a couple of days apart, could be construed as a “course” of comment or conduct.  Even if it could be so construed, the evidence fails to show that the grievor’s comments were directed “against” Ms. House, which is what a finding of harassment under the statute would require.

[54]        In attempting to establish that it had just cause to discipline the grievor for this comment, the Employer places great significance on the fact that the grievor added “I’m not prejudiced” after asking her “white history month” question a second time, allegedly while looking at Ms. House.   This, the Employer says, shows that the grievor knew that her words would be unwelcome.  According to the Employer, the fact that the grievor looked at Ms. House while saying that she was not prejudiced also shows that the grievor was trying to evoke a reaction from Ms. House.  The Employer submits that that is sufficient to establish that the grievor violated its Code of Business Conduct.

[55]        I agree that the comment “I’m not prejudiced” reveals that the grievor understood that she could be perceived as prejudiced as a result of her “white history month” question.  However, I fail to see how that gave the Employer just cause to discipline the grievor.  If the grievor made a discriminatory statement, the fact that she followed it with “I’m not prejudiced” would not shield her from discipline.  Conversely, if her “white history month” comment was not disciplinable in the first place, I am not persuaded that it was somehow converted into disciplinable conduct just because the grievor made a statement essentially disavowing prejudice.  Nor is the fact that the grievor looked at Ms. House while saying that she was not prejudiced sufficient to establish that the grievor was targeting Ms. House with her “white history month” question.  

[56]        It is vitally important that employers censure discriminatory and harassing comments in the workplace and it is their legal obligation to do so. At the same time, employers overstep if they purport to proscribe what employees can say to one another in private conversations without being able to clearly articulate what is objectionable about the speech in question, which, in my respectful view, the Employer has not done.  As noted above, the Employer’s investigator found that the grievor’s comment constituted misconduct because it was not aligned with the commitment in OPG’s Code of Business Conduct to “build trust and support the social and cultural fabric of the communities where we work, live and serve.”  However, I am not persuaded that mere misalignment with what is essentially an aspirational value statement in the Employer’s Code of Business Conduct is a sufficient foundation upon which to impose discipline on an employee.

[57]        As the Employer pointed out at the hearing, the Code of Business Conduct requires employees to treat one another with dignity and respect.  It also defines “personal harassment” as including conduct that demeans, humiliates or threatens.  Having carefully considered the evidentiary record before me, I find that it fails to show that the grievor’s question was disrespectful, demeaning or otherwise harassing towards Ms. House.

[58]        In my view, there is a difference between treating people in a negative manner on the basis of race, which is not alleged here, on the one hand, and not supporting measures that single out a particular group for recognition or special treatment based on race, on the other, even where recognition or treatment is favourable.  Whereas the former is contrary to human rights legislation, the latter is not a form of prohibited speech that engages the employer’s disciplinary power.  The Union submits that the grievor’s question reflected the grievor's belief that no one should be treated differently based on race. That is the explanation that the grievor offered the Employer when asked why she made the comment questioning Black history month and there is no evidence to the contrary.  Accordingly, I accept that that is what the grievor was trying to convey.

[59]        At the same time, the grievor’s question about “white history month” was provocative and careless. The grievor did not simply say that she thought that everyone should be treated the same, regardless of race.  By asking “What about white history month?” in response to a program about “Black history month”, the grievor was conveying to her coworkers that she had some sort of problem with Black history month, the purpose of which is to counteract the fact that the contributions of Black individuals and communities were historically ignored as part of longstanding and widespread anti-Black racism.    Although I accept the grievor’s explanation that she was just trying to express her belief that all people should be treated equally despite their race, her comment certainly could have raised a question in her co-workers’ minds as to whether the grievor holds discriminatory views.  Indeed, it seems that that is precisely what Ms. House concluded.  The Union also acknowledges the pitfalls of the grievor’s “colourblind” perspective, which fails to account for the fact that treating everyone the same when some have been greatly disadvantaged as the result of historical oppression and discrimination just allows inequality to persist.

[60]        In the circumstances, the Employer would have been well within its rights to give the grievor a non-disciplinary letter of expectation, explaining that her comment had been upsetting to a co-worker and counselling her on the importance of being sensitive so that everyone feels welcome at the workplace. Beyond that, and although I think it is close to the line, I am not persuaded that the grievor’s “white history month” question on two occasions in February 2022 rose to the level of disciplinable misconduct.

[61]        Before turning to the appropriateness of the disciplinary penalty imposed by the Employer, I wish to address the Employer’s submission that the grievor’s comments created a poisoned work environment for Ms. House.  In support of this submission, the Employer relies on Kaur v. 1865898 Ontario Inc., 2020 HRTO 550, at para. 263, in which the Human Rights Tribunal of Ontario explained that “in the human rights context, a poisoned work environment will be found in two circumstances:

[62]        The Employer does not allege, nor would I find, that Ms. House’s work environment was poisoned by a particularly egregious stand-alone incident.  Rather, the Employer urges me to find that the grievor’s comments, when considered together, constituted serious wrongful and persistent behaviour that created a hostile or intolerable work environment for Ms. House. In support of this submission, the Employer points to the fact that, as a result of the grievor’s comments, Ms. House felt the need to disengage from the grievor and ultimately from the workplace itself (by working from home).  However, a complainant’s subjective reaction to a co-worker’s comments is not sufficient to ground a finding of poisoned work environment.  The caselaw makes clear that the objective seriousness of the comments or conduct is an important factor. For the reasons set out above, I have found that only one of the grievor’s comments was discipline-worthy.  It necessarily follows that there was no serious and persistent wrongful behaviour on the part of the grievor capable of creating a poisoned work environment for Ms. House.  The allegation of poisoned work environment must be dismissed accordingly.

[63]        Having determined that the grievor did engage in culpable misconduct when she suggested to Ms. House that she “play the Indian card” to get a permanent job with OPG, I now turn to whether discharge was the appropriate penalty or whether some lesser penalty ought to be substituted.

[64]        The Employer submits that the grievor’s suggestion that Ms. House “play the Indian card” was sufficiently serious to warrant the penalty of discharge.

[65]        The Employer submits that, decades ago, such a statement may have been downplayed as an indelicate figure of speech or a minor indiscretion. However, attitudes towards comments of this nature have shifted dramatically since that time and they are no longer tolerated.  As societal attitudes have shifted, so too, the Employer submits, have arbitral perspectives on the seriousness of racist speech and conduct in the workplace.

[66]        In support of its position, the Employer relies on the relatively recent decision in Levi Strauss & Co. and Workers United Canada Council, (2020), 316 LAC (4^th) 91.  In that case, Arbitrator Luborsky concluded, at para. 207-209, that, given the societal goal of eliminating all forms of harassment in the workplace, including racism, as reflected in human rights and occupational health and safety legislation, it is appropriate to place racial slurs denigrating the ethnicity and/or race of another person within that class of serious workplace offences that presumptively justify termination of the employment relationship.  He thus proposes, at para. 208, to add racial slurs to the list of other offences, such as theft, violence, and sabotage, that so seriously undermine trust in the employee to fulfil the expectations of the employment contract and/or are so disruptive to the smooth operation of the enterprise and to basic notions of decency, that they are prima facie deserving of dismissal – even for a first offence by a long-service employee.  At the same time, Arbitrator Luborsky acknowledged that, even in the most serious cases of employee misconduct, an arbitrator must seriously consider whether discharge is just and reasonable in the circumstances of the particular case or whether it is appropriate to substitute a lesser penalty: Messier-Dowty Inc. and IAMAW, Local 905 (Broukxon), 2015 CarswellOnt 13284 (Surdykowski) at para. 62, as cited in Levi Strauss, above, at para. 208.

[67]        The Union submits that the grievor’s comment, though inappropriate, was not a racial slur and cannot be compared to the misconduct in the Levi Strauss case.  The Union points out that the grievor in Levi Strauss said he was going to kill another employee whom he called a “fucking black son of a bitch”.  He also aggressively mouthed the “n-word” in the employee’s face, called him a “black bastard” and bragged about having gotten “rid” of him.

[68]        The Union points to another case, Ontario Provincial Police and OPPA (Gruchy), 2022 CarswellOnt 8250, in which Arbitrator Albertyn reinstated an employee who engaged in far worse conduct that the grievor.  Without providing an exhaustive list, the employee in that case used racist slurs, including the “n” word, in the workplace; demeaned coworkers and/or their family members on the basis of disability, sexual orientation and religious belief; sexually harassed a religiously devout co-worker by claiming to others that he had “fucked her every way, all day” during a shift he worked with her; and distributed a photo of his penis to numerous employees.  Notwithstanding the extreme nature of the misconduct, Arbitrator Albertyn found that there was a toxic workplace culture that mitigated against the seriousness of the misconduct and that the employee had shown insight and remorse.  He substituted a three-month suspension for the discharge and reinstated the employee without backpay.

[69]        While acknowledging that the grievor’s conduct might be cause for some form of discipline, the Union submits that discharge was far too steep a penalty in the case at hand.  The Union submits that the ultimate penalty of termination should only be imposed after the Employer has attempted to correct the employee’s inappropriate behaviour through the imposition of progressive discipline.  The Union acknowledges that progressive discipline is not required or appropriate in certain cases of egregious employee misconduct, but says that this is not one of those cases. 

[70]        In the case at hand, the Union submits that educating the grievor by giving her a letter of expectation would have been more in keeping with the basic principle that human rights law is meant to be remedial not punitive. The Union notes that when she filed her complaint, Ms. House herself expressed that she did not want anyone to lose their livelihood.  She also suggested that the grievor might need some retraining.

[71]        In support of its request for reinstatement, the Union points to the grievor’s acknowledgement that her behaviour was inappropriate.  It submits that the grievor has learned from her experience, has expressed remorse and apologized for her errors of judgment, and is willing to participate in whatever Indigenous-focussed sensitivity and awareness training is deemed appropriate.  There is no chance, the Union says, of the grievor repeating the problematic conduct, if reinstated.

[72]        Having carefully considered the evidentiary record before me, as well as the parties’ submissions, it is clear to me is that the Employer’s response to the grievor’s conduct was out of proportion to what occurred. In my view, there is no basis upon which I could reasonably conclude that the grievor deserved to have her employment terminated by the Employer after 18 years of discipline-free service because of the comments she made to and/or in the presence of the Indigenous complainant. 

[73]        Although I have found that one of the grievor’s comments was discipline-worthy, it was not sufficiently serious in and of itself to warrant the penalty of discharge.  The appellate courts have made it clear that, in discipline cases, the penalty must be proportionate to the offence (McKinley v BC Tel, 2001 SCC 38, C.O.P.E v. Yellow Pages Group, 2012 ONCA 448).  The key issue to be determined in a discharge case is whether the grievor’s misconduct is reconcilable with sustaining the employment relationship (Yellow Pages, above, at para. 18).  In this case, I find the penalty of discharge to have been a disproportionately harsh response to the grievor’s misconduct.  The grievor’s “play the Indian card” comment was ill-advised and offensive.  However, the grievor did not intend to insult or demean Ms. House and her misconduct was not serious enough to justify discharge or even a lengthy suspension.  (To be clear, intent is not relevant to whether the grievor’s comment was discriminatory.  It is, however, a factor to be considered in determining how serious the grievor’s misconduct was and the appropriate disciplinary penalty.)

[74]        The Employer’s commitment to improving relations with Indigenous individuals and communities is laudable, as well as its commitment to eradicate racism in the workplace.  I also agree that the Employer can and should adopt a “zero tolerance” to racism in the workplace.  However, “zero tolerance” means that discriminatory conduct will be called out and addressed; it does not mean that the most severe penalties will be imposed for every instance of discriminatory or harassing conduct.  As the caselaw states, arbitrators have a duty to ensure that the disciplinary penalty is proportionate to the employee’s offence, whatever the nature of the offence.  Having considered the submissions carefully, I am inclined to agree with the Union that a remedial approach that seeks to educate employees and correct misconduct through the imposition of appropriate levels of progressive discipline is more in keeping with the remedial nature of human rights law.

[75]        This case is distinguishable from Levi Strauss (where discharge was upheld) as well as the OPP case relied upon by the Union (where reinstatement with no back pay and a three-month suspension was substituted for the discharge).  There is no dispute that the grievor’s comment about “playing the Indian card” was nowhere near as serious as the numerous hateful racist slurs and other egregious behaviour by the employees in those cases.  While I do not take issue with Arbitrator Luborsky’s approach in Levi Strauss, the grievor before me simply did not engage in the sort of behaviour addressed in that case, and so it has little application here.

[76]        There are also a number of mitigating factors in this case, which militate in favour of substituting a lesser penalty than discharge.

[77]        First and foremost is the fact that the grievor has 18 years of seniority.  The grievor has devoted a considerable number of years to the Employer and has thereby earned the right not to be summarily dismissed without first being given a fair opportunity to correct her behaviour through the imposition of progressive discipline.

[78]        The fact that the grievor has no disciplinary record is another important mitigating factor as it tends to suggest that the grievor is capable of being a good employee.

[79]        Another factor that weighs in favour of a lesser penalty is the fact that the grievor has apologized for her actions.  The Employer argues that the grievor’s apology was not genuine and that no weight should be given to it for that reason.  The Employer characterizes the grievor’s apology as a “pseudo-apology” in which the grievor expressed regret not for her conduct, but Ms. House’s reaction to it. 

[80]        There is no denying that, when first apprised of the complaint against her, the grievor became defensive, saying that she was “offended”.  I also agree with the Employer that the grievor’s attempt, early on, to deflect responsibility for the “Indian card” comment by suggesting that Ms. House was being overly “sensitive” was problematic.  However, I do not share the Employer’s view that it was unreasonable for the grievor to wish that she had had an opportunity to address Ms. House’s concerns informally before Ms. House launched a formal complaint with the Employer.  The applicable policy did not require Ms. House to do that, but it does allow for it.  Most people in the grievor’s shoes would feel the same way. 

[81]        The Employer also says that I should give no weight to the grievor’s apology because it was untimely.  It is true that the grievor did not provide a written apology until May 2022, after she was discharged.  However, the grievor did say at an early stage that she felt badly that she had upset Ms. House and that she would have apologized to her, if she had known how she felt.  This is important because it shows a willingness on the part of the grievor to be sensitive to her coworkers.  On balance, I accept that the grievor was sincere when she expressed remorse for her actions and committed to refrain from such behaviour in future.

[82]        It must be borne in mind that the value of the grievor’s apology lies primarily in the fact that it shows her rehabilitative potential.  Arbitrators have generally held that an employee who is willing to apologize for past misconduct is less likely to engage in such misconduct if reinstated.  By contrast, an employee who lacks insight and refuses to acknowledge wrongdoing is generally regarded by arbitrators as more likely to re-offend and therefore not a good candidate for reinstatement.  In addition to her apology to Ms. House, the grievor has said that she is willing to submit to further training on Indigenous issues in order to ensure that similar problems do not recur in future.  The grievor’s expressed desire to avoid upsetting her coworkers, her apology and her willingness to undergo training all suggest that the relationship between the grievor and the Employer is not irretrievably broken and unsalvageable.

[83]        The Employer also argued that the grievor’s misconduct on January 10, 2022 was exacerbated by the fact that the grievor was in an acting supervisor role at the time.  Article 8.8 of the collective agreement provides that employees who are assigned to perform supervisory roles are expected to demonstrate leadership, good judgement and reliability, and to ensure that all OPG standards, rules and policies are strictly adhered to.  By making a comment that was insulting to Ms. House on the basis of her Indigeneity, the grievor fell short of meeting those expectations.  I agree that this is an aggravating factor that also needs to be taken into account.

[84]        In all of the circumstances, I find that it is appropriate to substitute a one-day suspension for the discharge and to direct the Employer to reinstate the grievor to her former position, with no loss of seniority or compensation (other than for the one-day suspension).  In my view, this disciplinary penalty is proportionate to the grievor’s misconduct, particularly when the grievor’s 18 years of discipline-free service, apology and commitment to refrain from such comments in the future are taken into account.  At the same time, a suspension of some duration, as opposed to a reprimand of some sort, for example, is appropriate to reinforce the fact that discriminatory comments of any kind cannot be tolerated in the workplace.

[85]        As a condition of her reinstatement, the grievor is also required to participate in whatever Indigenous-focussed sensitivity and awareness training the Employer determines, in its discretion, to be appropriate.

[86]        The Employer has established that it had just cause to discipline the grievor, but not to discharge her.  A one-day suspension is substituted for the discharge.  The grievor is to be reinstated to her position without loss of seniority, benefits or compensation (except for the one-day suspension), subject to mitigation.  The grievor is also required to participate in whatever Indigenous-focussed sensitivity and awareness training the Employer determines, in its discretion, to be appropriate.  I remain seized to deal with any issues arising out of the implementation of this award.