Remorseful Employee Reinstated Despite Disturbing Workplace Harassment

Facts

The Gruchy case involved the dismissal of Kevin Gruchy, whose employment was terminated on November 8, 2016, for just cause after 11 years of service with the Ontario Provincial Police (“OPP”). At the time of his dismissal, Mr. Gruchy was a Special Constable working as an Offender Transportation Officer (“OTO”). Mr. Gruchy was dismissed following an investigation of harassment complaints against him in breach of the OPP’s various workplace policies.

The investigation against Mr. Gruchy began after a report of an incident in which Mr. Gruchy, at the end of a staff Christmas party, took a cookie from a tray of leftovers, brought the cookie to a bathroom, and used his cellphone to take a photo of the cookie placed on his genitals. He then sent the photo to two co-workers stating, “Merry Xmas,” and told one of the co-workers he put the cookie back on the tray (although Mr. Gruchy did not do this). Rumours of Mr. Gruchy’s photo spread around the workplace with many believing he put the cookie back on the tray.

A part-time co-worker who had taken some of the cookies home to share with his daughter was horrified at the prospect that she might have eaten the cookie in Mr. Gruchy’s photo. The co-worker complained to management about Mr. Gruchy’s conduct, but he (the co-worker) also complained about the unfair treatment he received by full-time OTOs and made broader allegations of workplace harassment. Even though Mr. Gruchy was not singled out in the complaint, management chose to focus its workplace harassment investigation solely on Mr. Gruchy’s behaviour and did not investigate the co-worker’s broader allegations.

Mr. Gruchy was placed on a paid suspension pending the outcome of the investigation. Following his suspension, several other OTOs came forward with complaints about Mr. Gruchy’s past conduct and management incorporated a total of 16 allegations into its investigation. Most of the allegations involved Mr. Gruchy’s use of inappropriate language in the workplace, including racist and sexist language to refer to others. For instance, Mr. Gruchy was accused of (among other things): using the terms “angry lesbian,” “Gay Rae,” and “Down Syndrome Kid” to describe certain co-workers; referring to Indigenous people as “savages;” and, using the “N” word on multiple occasions. After speaking to several witnesses, the investigator appointed to conduct the investigation concluded that all 16 allegations made against Mr. Gruchy were founded.

The investigator also noted at the end of her investigation report that she believed there was a wider systemic problem of workplace harassment within the workplace that management had been aware of for quite some time and had failed to address. The investigator noted the OPP had a responsibility to address potential issues within the workplace and to take action to resolve and restore the workplace to a healthy work environment. Despite this note in the investigation report, the OPP did not conduct a broader analysis of the workplace culture.

After assessing the conclusions of the report, the OPP dismissed Mr. Gruchy for cause. Mr. Gruchy grieved his dismissal, and his grievance came before Arbitrator Albertyn.

Arbitration

At arbitration, the union argued that Mr. Gruchy should not have been dismissed and a lesser penalty was more appropriate. Among other things, the union also argued that the OPP failed to ensure a safe and respectful workplace while Mr. Gruchy was employed. The union urged Arbitrator Albertyn to evaluate Mr. Gruchy’s misconduct against the backdrop of the widespread toxic behaviour that had become acceptable, open, and was even encouraged by the senior OTOs (known as Team Leads) of Mr. Gruchy’s unit.

Arbitrator Albertyn held that the evidence strongly suggested there was a toxic atmosphere in the workplace that could be described as poisoned, and that the workplace culture, which continued unchecked over a long period of time, did partially explain Mr. Gruchy’s behaviour. However, Arbitrator Albertyn held that was no excuse for Mr. Gruchy’s conduct, because Mr. Gruchy knew what he was doing was wrong and “the milieu in which we live and work has changed.” To explain this latter point, Arbitrator Albertyn referred to the case of Teck Metals Ltd. and USW, Local 480 (Oliver), Re, in which Arbitrator Nicols found that what was considered to be appropriate workplace behaviour changed over time, and certain conduct was no longer acceptable, regardless of what had historically taken place in the workplace. Arbitrator Nicols found that at this point in our society, the expectations that employees do not engage in behaviours that amount to bullying, racism, and sex discrimination were basic and fundamental. Therefore, the excuse of a historically “disrespectful workplace culture diminishes significantly, if not completely, in the face of these basic expectations.”

Applying the above-noted principle, Arbitrator Albertyn held that the culture permitted by the Team Leads (and to some extent engaged by them) after a period of several years led Mr. Gruchy to think that he would not suffer consequences if he continued to behave in the disrespectful manner that he did, despite management’s clear rules against such behaviour. However, Arbitrator Albertyn held that while the toxic environment could explain why Mr. Gruchy behaved in the way that he did, it did not excuse his misconduct (although it did mitigate it to some degree). Arbitrator Albertyn ultimately found that Mr. Gruchy engaged in harassment, disrespectful behaviour, and contributed to a poisoned work environment in breach of numerous OPP policies.

Arbitrator Albertyn then assessed whether Mr. Gruchy’s dismissal for just cause was appropriate, and if not, what penalty “seem[ed] just and reasonable in all of the circumstances.” To answer this question, Arbitrator Albertyn found the fact that Mr. Gruchy had 11 years of unblemished service and recent positive performance reviews weighed in Mr. Gruchy’s favour. Arbitrator Albertyn also found that Mr. Gruchy, at each stage of the OPP’s investigation and at the hearing, expressed sincere remorse and apologized for his actions. Arbitrator Albertyn found Mr. Gruchy’s remorse demonstrated that he understood his misconduct and that he deeply regretted his actions.

Weighing all the evidence, Arbitrator Albertyn exercised his discretion to substitute Mr. Gruchy’s dismissal with a lesser penalty of a three-month suspension, and ordered Mr. Gruchy be reinstated without backpay and without loss of seniority. Arbitrator Albertyn allowed the OPP to decide whether to reinstate Mr. Gruchy to his former unit or to reinstate him elsewhere.

Pitfalls to Avoid

While the Gruchy case involved a unionized workplace setting, all employers and decision-makers should take note of Arbitrator Albertyn’s holding that a workplace culture, no matter how relaxed, does not necessarily excuse an employee’s misconduct.

One of the reasons the toxic work environment within Mr. Gruchy’s workplace progressed was due to the lack of direct supervision of Mr. Gruchy’s work unit. From 2006 to 2014, Mr. Gruchy and his colleagues worked in a different facility than their manager. Arbitrator Albertyn found that while Mr. Gruchy’s manager had become aware of some issues, she was largely unaware of just how toxic the workplace was. Employers should always ensure adequate supervision of a workplace to reduce the risk of a toxic work environment growing unchecked over a period of time.

The Gruchy case is also a good lesson on what mistakes to avoid when conducting a workplace investigation. Arbitrator Albertyn criticized the OPP’s failure to conduct a broader investigation into its workplace culture despite being encouraged to do so by the investigator, and despite receiving complaints about broader workplace issues. The OPP’s sole focus on Mr. Gruchy’s misconduct was inappropriate and the OPP should not have ignored the broader workplace issues brought to management’s attention.

Finally, there were notable concerns with the findings of the investigator appointed to conduct the investigation. Arbitrator Albertyn observed that at arbitration, the investigator admitted that there was no evidence supporting some of her findings of wrong-doing. For instance, the investigator’s report concluded that she was unable to determine whether Mr. Gruchy put the cookie back on the tray. However, she admitted at the hearing that it was unfair for her to have made this conclusion, because she accepted Mr. Gruchy’s evidence that he was still in possession of the cookie. Arbitrator Albertyn held this inaccurate reporting had a prejudicial effect on those in management considering the evidence against Mr. Gruchy, and had the investigator stated in her report that Mr. Gruchy likely did not put the cookie back on the tray, that would have created a different impression of Mr. Gruchy’s misconduct. Arbitrator Albertyn’s comments reinforce the importance of ensuring that any workplace investigation is conducted in a thorough manner, and that the conclusions reached by the investigator are supported by evidence.