Thursday, November 3, 2016

Modern Society's Reboot of Indentured Servitude - Part 2

The second part of this article is a little more lengthy than most yet the material revealed required both depth and description with the posting of relevant documents.

Following the interrogation by Human Resource Manager Kelly Turner and Christine Argue of Loss Prevention on August 24th 2015, I was approached by Seafood Manager Kirsten Aplin with a wild request. In her hands Aplin had several UPC labels folded, she said that it was particularly a bad week and if I could put some items through even though I had not used them. She said that she had done this herself before on my invoices but this time asked me to do it. To ask me to commit fraud knowingly was a criminal act of conspiracy – it was intentional entrapment. This was even worse than the fraud committed by Produce Manager Angela Ciestak. It came the day after the interrogation and the first search of my station; such coincidences I don't believe in. I took four of the UPC labels and photocopied them.

On the next day I told Assistant Manager Lynn Walbourne that I had something serious to talk to her about. In the office I dropped the four UPC labels on the desk and recounted the whole thing with Kirsten Aplin. I explained how I had given Store Manager David Camilleri copies of all the invoices regarding the fraudulent invoices by the produce manager. Walbourne then told me she did not know that I had given Camilleri those invoices. Questions were mounting up and smelling worse than rotting apples so I told Walbourne that I had sent all the information to Vice President of Operations Tom White. Walbourne's eyes stared at me for several uncomfortable seconds, then said she would investigate this herself now and get back to me. With all that had happened I expected this to be nothing more than a lie.

My work environment became very, very tense on a daily basis from this point on. Staff were told not to speak to me, others were questioned after they were seen talking to me by department managers. In early September of 2015 I was called into the office, this time with David Camilleri and District Operator Craig Gawley. As I sat down I took my recorder out in front of Craig Gawley's face. Gawley said that I brought a very serious issue to their attention, that it took courage to do it, but now it was no longer my business, they would handle it. He also said that he was the D.O. and if I need to speak to anyone I should speak to him not the V.P., Tom White. Craig Gawley had also said that there would be nothing on my record relating to this matter. As I walked out of the office I could smell the cans of white wash yet I simply could not understand why. Produce Manager Angela Ciestak committed fraud and Seafood Manager Kirsten Aplin had gone further; not only had she committed fraud she had attempted to have me commit an act I would immediately be terminated for. It was a criminal act, Craig Gawley knew it, David Camilleri and Lynn Walbourne knew it, and both Human Resources and Loss Prevention would have known it. Nothing made any sense at all. Sobeys' Code of Business Conduct and Ethics had been breached, in fact more than breached, it was mangled.

Each day I came to work with Marilyn Manson's The Pale Emperor pumping into my ears. The defiance in both the singer's voice and lyrics helped to strengthen my mind to handle the stress of the coming nine hours. On October 6th 2015 I came into work several hours earlier as we were to have a school tour and I would need time to prepare the special treat for the kids. A very somber David Camilleri asked me to come to his office, in the office was another individual. I was introduced to a Tim Gingrich, Director of Human Resources, he said that I was terminated by Sobeys and as he read out the letter all I heard in my head was absolute relief that I outlasted everything. Tim Gingrich handed me the letter, Camilleri looked as if he was going to put his hand out to me. I grinned and walked out the door. I looked at the letter handed to be by the Director of Human Resources and noticed there was no letterhead, it was a blank sheet of paper with some words on it and Camilleri's signature. True professionalism at its best. I walked downstairs, threw my apron into the air, collected my recipes, said good-bye to some friends and walked out the door feeling relief and freedom.

The termination letter had conditions attached to it so I was somewhat handcuffed till January 2016. Within days of being terminated the steps of my response were discussed and formulated. As far as wrongful dismissal went I had all that I needed: recordings, documentation proving fraud, customer statements, witness statements and staff testimonials. Yet I wanted more and now seeing how far the management of Sobeys was willing to go I knew I would get more.

As the constraints of the termination were lifted in January, I prepared phase one. First to come was a complaint filed with the Human Resource Professional Association (HRPA), of which Kelly Turner had to be a member of. Kelly Turner's actions were irregular enough to warrant the complaint. I fully understood that the process with an industry self-regulatory entity would take some months to complete. In addition to this being time consuming I had no real trust in any self-regulating organisation. Experience had proven that these self-regulating entities rarely take the high road which I had stated in the opening of my complaint letter. Yet I hoped to get something for my investment and at the end of it I found myself grinning like a green suited leprechaun sitting at the end of a rainbow.

My original complaint form with attachments to the Human Resource Professional Association was signed a few days after Valentine's Day, on February 18th 2016. It took a little time but I received a response from the HRPA dated March 18th 2016, signed by Alicia Lockey, CHRL, Regulatory Process and Special Projects Specialist. Ms. Lockey also sent a complaints process FAQ, and a copy of the HRPA's Rules of Professional Conduct, which I already had. And so the games began.

The complaint before the HRPA was relatively simple in nature. Supporting evidence was provided so as not to present a hollow or baseless set of allegations. At the core of the complaint was the fact that Kelly Turner, HR Manager for Sobeys breached the rules of professional conduct in the manner which she claimed to have conducted an investigation relating to reports of workplace harassment. In addition to the harassment issue, descriptions of the fraud committed by the two department managers had been presented, explaining the lack of action by the Store Manager, his Assistant Manager, District Operator or even the VP (although we know what VP's do, they de-li-gate, not do).

I understood from the beginning that a copy of my complaint would be sent to Kelly Turner and for that reason I had to ensure that I did not give too much away. After reviewing my complaint Turner would have thirty days to respond. It was that response that I anticipated would provide additional material to what I had already stockpiled. My anticipation was paid for in aces, (I have probably messed up that popular saying). As a complaint mine was five pages long; their response 97 pages. It was a document with one goal, to destroy the reputation of an individual, and as one respected friend with twenty five years in the Human Resource field said, “WOW! They (Sobeys) sure know how to spin things … that document must of cost them $$$$ even though a lot of it was fabricated.”

Kelly Turner did not use a private lawyer as I would have expected, instead she gave me a monstrous gift. This response was prepared by one Alix Herber of Fasken Martineau, a Toronto law firm. In her opening Alix Herber states, “We are counsel for Sobeys Ontario (Sobeys) the former employer of Mr. Alexander Davidoff, the Complainant, and write on behalf of Ms. Kelly Turner of Sobeys in response of your letter dated March 18, 2016 addressed to Ms. Kelly Turner.” Now it was no longer Turner or Craig Gawley or David Camilleri acting as individuals, it was the corporation of Sobeys Ontario and therefore the corporation of Empire Company Limited.

Alix Herber of Fasken Martineau continues in paragraph 3, “We would also respectively request that the Complainant be advised of the confidentiality of this process and not permitted to post these documents on his blog or anywhere publicly, including on social media.” It would seem that Alix Herber had not reviewed the the HRPA Complaint form, there is no written mention of confidentiality anywhere. Alix Herber as a lawyer would also be aware of freedom of speech and freedom of the press, but then Ms. Herber and Ms. Turner had other things on their minds I guess. Alix Herber finishes this paragraph with, “We would also recommend that any new issues be canvassed with the Complainant directly without providing a copy of this written Response.” It is quite understandable why Ms. Herber and Ms. Turner would not want me to have a copy of the response. In relation to being “permitted to post,” the opening page of the response follows this paragraph, and more to come.

Sobeys painted a picture of an aggressive mental case running around their store frightening staff and threatening management. The goal of Kelly Turner and Alix Herber for Sobeys was plain and simple which explained the reasoning behind submitting material which had no relevance to my complaint. Yet in a court of law it is the evidence that I would need but would not normally have access to even through an Affidavit of Documents, and for that reason I thank both Ms. Turner and Ms. Herber of Fasken Martineau.

A ten page letter began the defamation and attack on my character, followed by 87 more pages under Tabs 1 through to 17. Issues outside my workplace were brought forward which had no bearing on my work or my performance, in fact no employer has a right to comment on an employee's activities outside their work environment. Still that was not anything Turner, Herber or Sobeys cared about.

It is understandable that such a high priced lawyer would look to smear my reputation when potential evidence against her client was as strong as mine. Heck you see it in the movies all the time, this was real life though with real consequences, after all an actor will walk away even after the execution of a death penalty. In the rush to smear me, in Tab 5, Turner and the Sobeys lawyer released private and personal information relating to two employees of the Scott Street Sobeys store.

The Employment Standards Act, under the Protecting Employee Privacy, states, “Do not disclose an employee's information to anyone (other than government agencies and benefits providers) without first securing the employee's permission.” (Keeping and protecting employee records. The Ontario Employment Standards Act, MaRS). I would expect Kelly Turner has some understanding of this Act, and if not definitely Alix Herber should, being from such a prestigious law firm. Maybe I am wrong in such an assumption.

Tab 5 has personal information on one past employee and one current employee, the latter relating to his alleged mental health. This individual made it clear that under no circumstances was he aware of this breach of his personal information. He has been given copies of the pages that relate to him, which are hand-written notes by Kelly Turner. This information has been shared by Turner in this response with a third party, namely the HRPA, who have no legal right of access to this information.

Things don't end with this breach of the Employee Standards Act, actually Tab 5 has a wealth of information, of evidence. All the material in this Tab relates to an investigation that Kelly Turner did in 2014 over a harassment issue with a silly young man trying to impress his equally silly girlfriend. During that investigation Turner has notes on interviews with supposed witnesses. One such witness was Lori Marsh, the Engagement Champ, the same one who walks around the store telling staff that all discussions with her are confidential. Lori Marsh, it appears, volunteered information to Turner and Store Manager Camilleri regarding what she claims to be things discussed with her, a copy of the notes by Turner are posted here. In addition to Lori Marsh another so-called witness was spoken with who said her statements were only “second hand.” How does such an 'experienced' Human Resource professional put on record a second hand account of anything? As you can see though, Turner did.

As one reads Tab 5 through many questions arise, but one in particular has always intrigued me. Did Turner and Camilleri go out to canvas staff to see who was willing to provide statements, or did these people, like Lori Marsh, voluntarily come to Turner and Camilleri? It is an interesting question and has serious bearing on this response later. There are two other points in Tab 5 that relate further down the line. First is the fact that I was watched and details of who I spoke with, even for how long are on record. Staff had been questioned as to what I was talking to them about and even advised by department managers not to speak with me – I have statements on that. Yet after I was terminated I had become a customer, a member of the public. To have this continue is a breach of the Charter of Rights and Freedoms.

Although Tab 5 had provided a plethora of usable information that I would not have had otherwise, some points do stand out and scream for attention. The next point has serious ramifications on the issues of the August 2015 interrogation and eventual dismissal. Turner's notes in Tab 5 state she reviewed the video of the Chef's Station, it appears from the formatting of the notes that Turner even formulated questions after viewing the video. Everything here indicates that the security video had a good line of sight around the Chef's Station. Even when Bakery Manager Shari Chastelet commented later in August 2015 that she thought she was looking for a shoplifter she had not stated any obstacles to the line of sight. Yet contradictory statements were later made relating to the harassment report by me.

Aside from Tab 5 one other stands out, with statements made by Assistant Manager Lynn Walbourne which are presented in Tab 15. Here Lynn Walbourne makes comments relating to August 26th 2015 where she claims, “I questioned Alex about the binders and folders he had in his chef's station drawers.” The first question that comes to mind is where did this statement by Walbourne appear prior to the response? Was it on my employee file which I was not given access to even when I made a written request to review it? More alarming is the intentional omission of fact about the situation.

Walbourne's statement is in two parts, on two pages one signed, the other not signed. She claims on the signed paged that she questioned me about binders and folders then claims I had said or made a statement to her. On the unsigned page the date is incorrect, the fact that she searched my station and the reason changed, Walbourne also claimed that I made a statement relating to Human Rights that is wrong. The facts were simple, on August 26th 2015, after the interrogation by Turner and company, Lynn Walbourne at 12:42 pm came to search my station in full view of customers and staff. On the same day at approximately 1:09 pm she came back down and said, “they told you not to have it on the floor.” Thursday August 27th, Walbourne called me at approximately 11:43 am and asked whether I had any papers “down there.” Then on Friday August 28th 2015 I did give her a “booklet of papers”, it was a revised copy of the Motion Record which Turner claimed that her legal people had called the court about prior to this date. Finally, is it reasonable to ask whether the second unsigned page was added some time later, explaining the lack of signature and serious inconsistencies.

Lynn Walbourne decided to omit from her statement the fact that she searched my station and that as she first began the search she lied as to what she was doing. She also omitted as to who instructed her to search my station and for what reason. Walbourne did not find the need to mention that “the binders” were my temperature logs, and except for one folder the others were recipes which I cooked and worked on. Neither did Lynn Walbourne bother to state that she searched my station for several days or the fact that witnesses told me, who will provide testimony, that Walbourne searched my station even before I started my shift. When I questioned her about this her response was that she was only signing the log binders. Were these the same “binders” she claimed to have questioned me about? It would appear Lynn Walbourne needs her memory refreshed by listening to her own voice.

On August 29th 2015 a senior staff member said to me, “My God they are trying to ostracise you.” I knew that I was in a hostile and poisoned work environment designed to make me want to resign. The daily stress and pressure was immense but under no circumstances would I give in, instead, for months I made sure to record conversations and encounters for my protection as Lynn Walbourne proved supposed 'reporting' was extremely erroneous and lacking truth or even fact, much not even being recorded at all. In the case of Lynn Walbourne there is no report on the morning when I gave her the UPC labels and recounted what happened. I knew where I was working and was fully prepared for the outcome that was ahead.

After termination I served out my 'parole' period and forwarded my complaint to the HRPA. The reason behind my complaint has already been mentioned and the result dissected, yet the gifts did not end there. The HRPA decided to take the matter to a panel for review, and their final decision turned out to be an even greater gift in some respect.

To review the final decision by the HRPA would take a great deal of time, yet to ignore it for expediency alone would be an injustice to this article and to a long phase of a battle to expose the truth. As a governing body over an industry with powers to censure and fine its members the HRPA is bound by the responsibility of procedural fairness. The Human Resources Professionals Association of Ontario Act, 1990, under Section 4(1)(c) gives the Board of the HRPA the specific statutory authority to regulate and govern the conduct of members of the association in the practice of their profession.

Its Chair, Debbie Bennett stated, “Self-regulation is a privilege. It is our responsibility as a regulatory body, and as individual members of HRPA, to ensure that we regulate ourselves effectively.” These are mighty fine words but how much do they really mean? Self-regulatory bodies have proven time and time again that their apparent main goal is to protect their own members rather than investigate the truth. In this case my semblance of procedural fairness disappeared at the Complaints Committee Panel chaired by Jennifer Cooper.

Jennifer Cooper was given an opportunity to answer some questions but she refused to respond. In the final decision the HRPA and Chair of the Complaints Committee Panel basically decided that Kelly Turner had not breached their professional standards. This panel simply took what Turner and Sobey's lawyer had presented in the 97 page response, very little else was of importance to Jennifer Cooper and the panel. According to the HRPA's FAQ sheet provided by Alicia Lockey, Regulatory Process and Special Projects Specialist, under the heading 'What process does the CIC Panel follow?', on page 2, it states “the CIC Panel may decide the matter requires further investigation. The Panel may interview witnesses, to assist in the determination of facts or to bring clarity to the circumstances. The Panel may also engage an investigator to conduct an investigation on their behalf.” What was brought to the HRPA as a complaint was a serious issue and my complaint was clear and on point; the response that was submitted was aimed to damage my reputation with most of the material irrelevant to the complaint.

A landmark federal court decision in Ottawa on September 2nd 2016 has provided the benchmark that now can be referenced to in such matters. Federal Justice Russel W. Zinn wrote in his decision under Standard of Review page 9, paragraph 35: “Commissioner Shoan submits, and I agree, that a harassment investigation has significant consequences for all parties involved, and thus procedural fairness is required.”

Examining the final document from the HRPA leaves one bemused even at some of the language, such as the fact that I did not agree with the summary of David Camilleri's actions as outlined in Kelly Turner's letter and that an adequate investigation was conducted. For Jennifer Cooper, Chair of the Panel, to make such a statement only proves ignorance of the English language used in my complaint. Yet that on its own is not the real issue at question. As part of the decision summary a section is labelled 'Information Considered', and it is here that the test of procedural fairness fails.

In paragraph 46 of the decision by Federal Justice Zinn, he states, “in determining whether an investigation was procedurally fair and proper. Justice Richard in Bell Canada v Communication, Energy and Paperworks Union [1997] FCS No 207, 1997 Caswell Nat 347 at para 31 (FCTD) articulated the test as follows: The standard of conduct which is applicable to those preforming an adjudicative function is different from those performing a purely administrative or investigative function. In the case of an administrative or investigative function, the standard is not whether there is a reasonable apprehension of bias on the part of the investigator, but rather whether the investigator maintained an open mind, that is whether the investigator has not predetermined the issue.”

It is near impossible to understand how the HRPA decided not to review key evidence in order to make their decision. Key to all of the issues surrounding the supposed investigation by Kelly Turner is the audio recording of the whole session, yet that is not part of the list of material considered by the Panel and Jennifer Cooper. There are serious legal questions that will require answering relating to the Analysis of Issues as stated in the HRPA summary, some of which are best not brought up here. Others left me with a grin such as the need to have this heading number 3, “Did Ms. Turner engage in a retaliatory conduct against Mr. Davidoff for initiating the harassment complaint and for raising concerns about the conduct of other employee?” Here and now I challenge Ms. Jennifer Cooper to corroborate my words anywhere in the complaint process where I made this allegation regarding Kelly Turner. How or why Jennifer Cooper came up with this as an investigative point for consideration is difficult to understand for now.

Further in point 3 it states, “Documentation from Ms. Turner confirms that Mr. Davidoff was cautioned about his food safety practices on at least one occasion prior to his meeting with Ms. Turner on August 26 2015.” Here is the key to it all. After two years of coming into work five days a week, for eight hours a day, on one day I forgot, for some reason, to put on my hairnet. Yes, a hairnet! This is omitted by Jennifer Cooper as to what “food safety practices” I did not follow. Yet this is somehow insignificant to Ms. Cooper. Cooper labels this as “documentation from Ms. Turner.” What documentation, other than a sentence in the response provided by Alix Herber as Sobeys' counsel? This made me understand O.J. and the black glove absurdity.

Point 3 continues to shine with statements made by Jennifer Cooper which raise serious questions of motivation let alone procedural fairness. Paragraph four begins with, “Mr. Davidoff alleges that Sobeys management and human resources staff, including Ms. Turner, harassed or intimidated him by talking to him about concerns of the invoicing of products to his workstation and searching his workstation.” Here Cooper takes two separate issues – one is fraud by department managers, the other relating to the search of my workstation – throws them together as a mismatched sandwich and asks that it be digested without any resulting upset.

I had brought to the attention of management the issue of fraud committed by two department managers. Craig Gawley, Sobeys District Operator, was recorded calling this “a very serious issue.” One manager went a little further, Kirsten Aplin tried to involve me in the fraud. Sobeys' lawyer, Alix Herber, in the response called it an “erroneous allocation,” although just like a lawyer she is careful not to name which manager this referred to, Aplin or Ciestak. Again, I challenge Jennifer Cooper to point out somewhere in my words that I alleged any intimidation or harassment by anyone relating to this.

In relation to the search, Assistant Store Manager Lynn Walbourne somehow forgot the facts and left all of it out in her teeny statement used by Herber in the response by, and on behalf of, Turner and Sobeys. Cooper explains this away as, “Ms. Turner denies the allegation and submits that Mr. Davidoff has mischaracterized the conversations and the supervision of his workstation.” I have to ask which conversations did I mischaracterize, the one with Kirsten Aplin and the UPC labels or Lynn Walbourne opening all my cupboards and drawers with the lie of looking for napkins?

In the end the HRPA decision summary simply leaves a multitude of questions. As a statutory body the HRPA has an absolute obligation to conduct themselves in a manner which cannot be questioned on issues of procedural fairness. Quoting once again Federal Justice Zinn from paragraph 53 of his decision:

“A lack of even-mindedness has also been found when relevant material information was omitted in the investigation report. Canadian Broadcasting Corp v. Paul [1998] FCS No 1823. [1999] 2FC3 (FCTD0). The court there held that the failure was of such significance that it provided evidence of bias rendering an investigation procedurally unfair.”

There are no explanations or excuses that Jennifer Cooper, Panel Chair, can provide to justify the actions of the HRPA. It has been through experience that trust or faith in self-governing bodies has dissipated over the years. At the same time corporations in general have proven that procedural fairness is nothing but a joke.

In recent months two other employees of Sobeys had been terminated; one from the Fonthill store, the other from Scott Street in St. Catharines. Both employees have asked not to publish their names at this time for privacy reasons. Olga worked at Scott Street Sobeys for a year, and then transferred to Fonthill to get better hours. This individual was a hard working woman in her mind 50's with a work ethic which had her stay longer after clocking out for the day to get the work done. Olga was accused of stealing a piece of chicken worth between $4– $5. Such an accusation was devastating to this person whose honesty and integrity was never questioned.

She was suspended from her duties, then Loss Prevention was brought in to question her. Theft would never be an option for Olga even if she was hungry. During questioning she was able to prove that she paid for the chicken piece. Front end security video proved it and the fact she used her bank ATM card to pay for it proved it. The loss prevention individual, who Olga remembers as Christine, even demanded her bank card, something that the police can't do, but the intimidation used by this individual had no concern for what was legal or not. Even though Olga proved without any doubt that she paid for the chicken she was terminated. Upon termination she was also served with a No Trespass Order for any Sobeys property, this too was an illegal act. Her termination letter states that she breached “Employee Shopping Policy found on page 37 of your employee handbook.”

The second incident revolves around an employee from the Scott Street Store who had began employment with Sobeys in May 2008. Ingrid was a cashier and also staffed the customer service counter. Her termination also centred around a similar reason. When I interviewed her, she explained why she was terminated: “I took coupons off a product I didn't end up buying and I bought it while I was working. I said so I'm being fired for taking a coupon and they (I believe it was the loss prevention lady) said that no it was because I no longer can be trusted.” I asked her what was the value of the coupons, her reply, “it was 3 coupons for $2.50 I believe then – buy 3 get one free.”

No verbal or written warnings were given to either of these two women. Yet in the response by Turner and Sobeys lawyer Alix Herber, on page 8 it states that the issue of fraud identified by me was investigated by “Ms. Argue from Loss Prevention, Mr. Gawley the Director of Operations and Mr. Camilleri, Store Manager.” It further states that “this employee received a final warning letter.” So fraud by a department manager is labelled as “erroneously, but improperly” assigning cost of certain products, is rewarded with a final warning letter, and a promotion as Manager of the Beamsville store Bakery department. Yet two part-time, minimum wage women are immediately terminated for a $4 piece of chicken and some two plus dollars worth of coupons. Both women are labelled as not trustworthy by Christine Argue from Loss Prevention. Procedural fairness did not appear to be consideration for Sobeys or Christine Argue from Loss Prevention.

The issues outlined in these two parts relating to Sobeys are not just systemic with this corporation alone. A flight attendant, Mandalena Lewis, with WestJet had reported sexual assault by a pilot. WestJet claims to have investigated the report, although nothing had appeared to have been done with the pilot. The flight attendant requested her employment record, and when three months passed without response, she sent an angry email which contained a swear word, demanding her record. She was fired later that day for insubordination. In Hawaii, where the assault occurred, there remains an outstanding police arrest warrant, yet WestJet ensures the pilot does not fly any routes which would require stopovers in Hawaii.

Raj Shoan, former CRTC Commissioner, had filed an action with the federal court after a mishandled harassment investigation of which he was the target. As a result, Federal Justice Russel W. Zinn provided a landmark decision in relation to procedural fairness which did not exist in such a concise form in the past. Corporations had rarely shown concern for their employers, although it is not easy to understand the motivation behind their actions. In the end it is up to individuals to stand up and fight for the truth.

The action taken by Sobeys is clear for its intent, Kelly Turner and Sobeys' counsel Alix Herber of Fasken Martineau, set on a course to maliciously attack and tarnish my reputation. Their response to my complaint submitted to the HRPA was not only harsh and vindictive, it was reprehensible. All the hard work, the achievements and loyalty had been wiped out, maybe Alix Herber should have read the Fasken Martineau blog post 'Punitive Damages Awards in Wrongful Dismissals Being Aggravated? The HR Space', by David T. McDonald, Vancouver, April 4, 2013. The opening paragraph states: “The employer's conduct in the course of termination must be proven to be harsh, vindictive, reprehensible and malicious. Despite this high ground a number of recent trial decisions show how courts are becoming more open to providing plaintiff employees with awards of punitive damages.”

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