Toxic culture no excuse for harassing behaviour at OPP

'Certain behaviours are simply unacceptable, irrespective of the culture they're working in'

Toxic culture no excuse for harassing behaviour at OPP

“Even if there is a workplace culture that is toxic, that workplace culture will not necessarily excuse the behaviour of employees who participate in it. People should know that certain behaviours are simply unacceptable, irrespective of the culture they're working in.”

So says Rich Appiah, an employment lawyer and principal of Appiah Law in Toronto, after an employee of the Ontario Provincial Police (OPP) was fired for harassing behaviour in the workplace and then reinstated by an arbitrator with a three-month suspension on his record.

The cookie incident

The worker was a special constable acting as an offender transportation officer (OTO), hired in 2006. His duties involved the transportation of offenders from detention centres or mental health institutions to court appearances and the maintenance of the vehicles and security equipment that they used.

Until 2014, the staff sergeant who managed the worker’s unit was based in a different location, so there was rarely a manager physically present. There was also a high turnover in the unit’s management until 2013, when one staff sergeant began a four-year tenure. In 2014, the unit, including the staff sergeant, relocated to a new base in Midland, Ont., although the staff sergeant was still largely separated from the daily operations of the unit.

In December 2015, the unit had a potluck Christmas party. The worker wasn’t able to attend as he was working. When he returned to the unit after the party was over, he took a cookie off a tray of leftovers, went to the washroom, and took a picture of the cookie on top of his penis. He texted the photo to two other OTOs in the unit and told them he put the cookie back on the plate – although he actually kept it in his truck for a while.

One of the other OTOs shared the picture with co-workers. One employee saw the photo and found it “disgusting and disturbing,” particularly since he had eaten some of the cookies and taken some home. He reported the picture to management.

Complaint inspired more complaints

The same employee decided to make an official complaint under the OPP’s Workplace Discrimination and Harassment Prevention (WDHP) program over unfair treatment by full-time OTOs, including the worker, because he was a part-time employee.

The employee didn’t single out the worker in his complaint other than mentioning the photograph, but management decided to investigate only the worker. He was suspended with pay in January 2016 pending the outcome of the investigation.

Read more: The top reason for people to quit their job is a toxic culture, just ahead of low pay, according to a survey.

A few days later, other OTOs came forward and made complaints about comments the worker had made over a period of 10 years. The OPP opened more WDHP complaints and added them to the investigation – although two of the complainants thought they were complaining against a poisoned work environment as a whole. However, multiple complainants described the worker as “vulgar, racist, and unprofessional.”

The worker admitted to making many of the comments and to the cookie incident, although he acknowledged they were wrong and he shouldn’t have made them. The investigator determined that all of the claims against him were substantiated, although there was no evidence for a couple of the alleged comments.

The worker asked for an opportunity to apologize to the people affected by his comments and said he wanted to be involved in restoring a respectful workplace, adding that the unit’s culture needed to be addressed as a whole.

Remorse is key

The worker’s acknowledgment and remorse for his misconduct from the beginning of the investigation was an important element of the case, says Appiah.

“It would have been easy for him to wait until the time of the hearing, after being unemployed for about five or six years to say, ‘Yes, I'm really sorry for this, it will never happen again’ and it would be self-serving for him to do that,” he says. “But what we saw here was a worker who, right from the outset of the investigation against him, admitted that what he did was wrong and that type of conduct didn't belong in a workplace.”

“In these types of cases, acknowledging the misconduct and owning up to it is really important for an arbitrator to come to the conclusion that the worker appreciates the severity of the misconduct,” Appiah adds.

The investigator found that the worker engaged in conduct constituting harassment, sexual harassment, and creating a poisoned work environment. She also found further concerns within the unit’s workplace environment for which she recommended further review.

On Aug. 24, the worker was informed that all the allegations against him had been substantiated. At a pre-disciplinary meeting, the worker tried to read an apology but became too emotional to continue.

On Nov. 8, the OPP terminated the worker for violating the WDHP policy and the code of conduct for special constables.

The union grieved the termination as too harsh, arguing that the workplace culture was poisoned by “inappropriate behaviour on a significant scale” that wasn’t disciplined and the worker admitted to his misconduct.

The worker said that the use of nicknames and racial or sexual jokes was widespread, and he was also the subject of racially charged nicknames because he was Indigenous. There was also evidence that the worker had a difficult upbringing with past trauma, which contributed to his “daring behaviour” at work to try to be accepted. He added that he reflected on the reactions to his comments and would work on being a better person.

Insufficient supervision

The arbitrator found that bullying and inappropriate language were tolerated in the workplace and there was insufficient supervision. The cookie incident served as a “catalyst for complaints of maltreatment in the workplace to be raised," including specific ones against the worker and others about the workplace generally that weren’t pursued, said the arbitrator.

The arbitrator also found that while the worker wasn’t solely to blame for the toxic workplace culture, he was an active participant and had responsibility for his misconduct.

However, the OPP’s focus on the worker as the single wrongdoer wasn’t consistent with the evidence, the arbitrator said, pointing to complaints about the workplace in general and evidence that the comments were normal among many of the OTOs.

The way the OPP’s investigation focused only on the worker was flawed, particularly since the investigator didn’t have evidence for every allegation but reported that all were substantiated, says Appiah.

“During the course of the hearing, the investigator acknowledged that some of her findings were incorrect in that she didn't have sufficient basis to conclude that certain forms of misconduct occurred, even though she made those conclusions in the report,” he says. “The people who made the decision to dismiss might have come to a different conclusion had they had a proper understanding of where misconduct occurred and where misconduct did not occur.”

“The investigation really focused on the worker and the worker’s misconduct, even though at least one person who came forward in complaining about the workplace was focusing on the workplace as a whole and not just the [worker].”

The arbitrator found that management, for the most part, wasn’t aware of the situation in the workplace due to a separation between the OTOs and their manager. There was no condonation of the behaviour – once management received complaints, it took action, the arbitrator said.

No condonation of toxic behaviour

Because the employer didn't know all the facts underlying the toxic workplace culture, the employer could not be held to have condoned the workplace culture and, by extension, the conduct of the employee, says Appiah.

“The decision sets a standard as to when a workplace will be found to have condoned toxic workplace culture and when it will not be.”

The arbitrator determined that the worker used language that was unacceptable in a workplace an showed a lack of professionalism, and the OPP was obligated to protect employees from workplace harassment and discrimination. The breach of the policy warranted serious discipline, and the decision to terminate the worker’s employment was reasonable, the arbitrator said.

Read more: Following these eight practices can help prevent and mitigate workplace harassment and bullying.

However, the worker had 11 years of service without prior discipline and showed “genuine insight” into his behaviour, the arbitrator found. The worker also co-operated with the investigation, expressed remorse and a desire to contribute to a better workplace. This demonstrated rehabilitative potential to comply with the requirements of a respectful workplace.

The arbitrator ordered the OPP to reinstate the worker without compensation and to substitute a three-month suspension.

Appiah sees the case as reinforcing the importance for employers to pay attention to workplace culture and whether they have competent leadership.

“An interesting piece of this case was the lack of supervision within this particular workplace, and how that lack of supervision allowed a toxic workplace culture to fester,” says Appiah.

“Outside of consistent enforcement of policies and standards, employers should ensure that when they're making determinations of leadership and management, they should prefer candidates who have very strong leadership skills, have the ability to monitor workplaces, and carry the corporate message around workplace culture – and not simply look for people who have the best technical skills.”

See Ontario Provincial Police and OPPA (Gruchy), Re, 2022 CarswellOnt 8250.

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