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HomeMy WebLinkAbout1986-0308.Nichols.88-10-20Between: 308/86 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (David Nichols) Before: For the Grievor: For the Employer: - Hearings: and The Crown in Right of Ontario (Ministry of Community and Social Services) R.J. Roberts L. Robbins I.J. Cowan Vice Chairperson Member Member R. Anand T. Hadwen Counsel Cavalluzzo, Hayes & Lennon Barristers and Solicitors ‘ E. Maksimowski Solicitor Legal Services Branch Ministry of Community and Social Services September 21, 1987 March 8, 1988 March 31. 1988 Grievor Employer .- , DECISION This is a discipline case. The grievor.was given a written reprimand for acting inappropriately in relation to his responsibilities as a Residential Counsellor. The grievor denied any inappropriate conduct and submitted the grievance leading to the present arbitration. For reasons which. follow, this grievance is allowed. The evidence showed that the written reprimand to the grievor arose out of an allegation which.came as a "sidewind" to a more serious allegation against a co-worker, Mr. Frank Dubowik. It was alleged that while on duty as a Residential Counsellor on the day after Christmas., 1985, Mr. Dubowik encouraged two male residents to engage in homosexual conduct in front of other residents and that the grievor did not intervene- but instead laughed at the scene and even summoned another Residential Counsellor, Mr. Harvey Barkley, to come and watch. At the time, the grievor, Mr. Dubowik and Mr. Barkley were Residential Counsellors in cottage 03 at the Huronia Regional Centre in Orillia. This cottage housed 28 male residents, aged 19 to 48. The residents were either brain dam.aged or mentally ill. The lower functioning residents were housed at the north end of the cottage and the higher functioning ones, most of whom I had behaviour problems, were at the south end. The two groups slept and ate separately, and generally kept apart from each other. At the time of the discipline, there were 23 male and female Residential Counsellors working in this cottage. They rotated through three shifts, seven days a week. There were no specific assignments. The counsellors could and did work at either end of the cottage. On the day shift, three counsellors were required at the north end and two were required at the south end where the residents were higher functioning. Another Residential Counsellor dealt with medications. Ms. B. Sowieta, the Residential Supervisor, testified that in early-January, 1986 , she received several reports alleging 1 improper conduct on the part of Mr. Dubowik. As a result, Mr. Dubowik was suspended and a committee of four people was formed to investigate ,,the allegations. This committee was composed of Mr. J. Fecht, the Acting Assistant Administrator of Huronia; Ms. J. Fraser, a representative from Human Resources: Dr. Crawford: and a parent representative. ,As part of its investigation, the committee undertook to interview Mr. Dubowik's co-workers. On January 21, 1986, Mrs. Sowieta asked to speak to Mr. Barkley. She advised him of Mr. Dubowik's suspension and told him that he would be interviewed by the investigation committee. 3 She stated that if he knew of any "situations" it would be appropriate to share them with .the committee. According to Ms. Sowieta, Mr. Barkley responded by saying that in early January when he was in charge of 03 cottage, he was called down to witness one of the male residents, B. engage in homosexual activities with another male resident, G. According to Ms. Sowieta, the whole thing was orchestrated by Mr. Dubowik. who instructed the two residents on how to do it. Ms. Sowieta advised Mr. Barkley that something would be done and stated that he should relate this story to the committee. Y Mr. Barkley testified that around 2:00 p.m. on the day aft,er Christmas, 1985, he was summoned by the grievor to the day rocim at the north end of the cottage. When he got there, he saw Mr. Dubowik slouching on a red couch. The grievor was about two feet ahead of Mr. Barkley, near a chair. Mr. Barkley was in the entrance way to the day room. According to a diagram drawn by Mr. Barkley, the cleaner assigned to the shift was standing about two feet behind him. Mr. Barkley said that he saw the two residents at a point about eight feet in front of Mr, Dubowik. Mr. Dubowik, he said, asked G if he would like to perform a sexual act with B. He then asked B the same thing. 4 As B stood there looking embarrassed, Mr. Barkley said. Mr. Dubowik was almost delirious with laughter. Although B still looked a little confused, he eventually complied with Mr. Dubowik's instruction. When this occurred, he said, Mr. Dubowik was "almost in stitches laughing". The grievor was laughing but his laughter was not nearly as pronounced as Mr. Dubowik's. At that point, Mr. Barkley testified, there were probably eight to nine residents in the room.. He turned and said to both the grievor and Mr. Dubowik, "You guys are...crazy." He then turned and left the area because he was embarrassed and did nit know what to do. He went to the south end of the cottage to make sure that the residents there were okay. Mr. Barkley was as,ked on cross-examination whether he was sure that the incident had occurred~ on the day after Christmas, 1985. He was confronted with testimony that h'e had given in April, 1987 during prior proceedings involving Mr. Dubowik that the incident occurred some time in early January, 1986. Mr. Barkley insisted that he knew the date was Boxing Day, the 26th of December. Also on cross-examination, Mr. Barkley stated that he waited approximately three to four weeks after the incident to report it because he was torn between implicating the grievor, .who was a close friend, and the place, i.e., cottage 03, being cleaned up. 5 He agreed that at this time, he simply stated to a supervisor other than Mrs. Sowieta that Mr. Dubowik had enticed some residents into homosexual behaviour and something should be done about it. He said that he did tell this supervisor that the grievor was there but he did not think that he told him that the grievor was laughing. He stated, * I did not imply that the grievor did anything right or wrong." It was shortly after this, 'the. witness stated, that Mrs. Sowieta called him into her office and asked him to write a report. Mr. Barkley did so on March 10, 1986. He testified on cross-examination that this was about three days after she asked him for it. Mr. Barkley agreed that at the time, i.e., from December, 1985 through to February, 1986, he was under a lot of stress and duress. He agreed that there was no doubt that it n affected his memory and recall of events at that particular time. In her testimony on cross-examination, Mrs. Sowieta stated that when she interviewed Mr. Barkley. he was unable to give her an exact date when the incident happened. She said that he had thought it happened sometime in the first part of January. She realised, she said, that at the time Mr. Barkley was going through a major personal crisis. at least he said that he was, and could not recall dates. She stated that she felt that she did not need to pressure him for dates at that point in time. 6 Mr. Barkley's nervous condition also played a part in his explanation of certain inconsistencies between his story at this hearing and the version of events that he gave when he testified at Mr. Dubowik's hearing in April, 1987. He said that he did not know the date of the incident at the Dubowik hearing because he was going through a difficult time. He agreed that he did say at several points in the hearing that the incident occurred in January, 1986. He explained that he,had now been able to collect his thoughts and knew that it 'had actually occurred on December 26, 1985. When he was confronted with further notes of testimony,,at the Dubowik hearing in which he stated that the incident took place on a weekend, Mr. Barkley initially responded that he meant it was a long weekend. When he " was pressed further on cross- examination, Mr. Barkley said that he did not recall it being suggested to him in the Dubowik hearing that there was no weekend in January when he, the grievor and Mr. Dubowik worked together. He insisted that no one told him that the incident occurred on December 26, that he had been able to collect his thoughts and he now remembered. He added that at the time he was on 50 milligrams of Tenomins and 50 milligrams of Moduits per day to calm him down. He said that now he was only on Tenomins every second day and had taken about 25 milligrams of that on the day of the.hearing. He said, "I am a little hyper at times." 7 Mr. Barkley also agreed on cross-examination with the suggestion that on occasion on work days, he had beers at lunch and on one occasion, drinks at PJ's in Orillia. He insisted, however, that on December 26, 1985, he did not go to PJ's at lunch. The grievor testified that the incident recounted by Mr. Barkley never happened. He said that the only incidence of homosexual conduct that he ever witnessed in cottage 03 was an incidence of oral sex between the same two residents, but this was in private. It was just something that the grievor noticed as he walked by. He said that when he was interviewed by the investigation committee about seeing any sexual activity in the cottage, he told them about the oral sex but did not go into detail because they did not indicate. any concern about it. He was never asked about the allegations made by Mr. Barkley. Moreover, .he added, when he was given his letter of reprimand, which was in vague terms and did not specifically refer to the incident that Mr. Barkley alleged took place, he did not understand what management was referring to. He said that they refused to give him any additional particulars. The first time that he learned of Mr. Barkley's allegations regarding his laughing at homosexual conduct between the two residents was in a meeting at his lawyer's office when he saw the reports which had been turned over by counsel for the Ministry. 8 This aspect of the grievor's testimony remained unshakened despite rigorous cross-examination. At one point, the grievor stated, "I had nothing in my mixid at the time of the meeting [in which the letter of reprimand was issued] to direct my attention to that particular one i.ncident. Mr. Dubowik was suspended for a whole raft of incidents. There was no 'scuttlebut' regarding this particular incident." Mr, Dubowik also testified that the incident never occurred. He said that when he was apprised of the allegation, it got him upset because it was a complete lie. In his opinion, he stated, it was completely ridiculous. He added that he did not know why Mr. Barkley would make such an allegation against him. Both the grievor and Mr. Dubowik gave testimony tending to discredit the general reputation for credibility of Mr. Barkley. We will not review this evidence, however, because we have decided to place no weight upon it. Not only was this evidence given by witnesses who had a tremendous stake in discrediting Mr. Bartley's credibility, but also Mr. Barkley was not asked questions on cross-examination which would have given him an opportunity to respond to the bulk of the allegations which were made in this regard. Probably this was because Mr. Barkley was cross-examined by Mr. Anand while the grievor and Mr. Dubowik were examined by Mr. Hadwen, who was called in to take over for 9 Mr. Anand after the latter was appointed to a posit ion in the government. Nevertheless, we do not think that it would be appropriate to rely upon such evidence in reaching our conclusions in this case. Finally, Mr. J. Leatherdale was called to testi'fy. He was the cleaner who was on duty in cottage 03 on December 26, 1985. When he was asked about Mr. Barkley's allegation that the grievor laughed while Mr. Dubowik aided .and abetted two residents in committing a homosexual act in front of others, he replied that he did not recall that incident at all. He stated that he had never seen a Residential Counsello'r encouraging, homosexual activities, and he had so advised Mr. J. Fecht, t.he Assistant Administrator, when the latter asked him questions about the same incident. On cross-examination, Mr. Leatherdale agreed that he could not really recall December 26, 1985 with any'certainty or clarity but he stated that nothing stood out in his mind. Mr. Leatherdale also indicated that he was the only: cleaner for cottage 03 on the day in question. It ,is evident from a review of the foregoing that the case for the Ministry hinges virtually entirely upon the credibility of its sole eye witness to the alleged incident,lMr. Barkley. For here, the evidence led by the Union directly contradicted Mr. Barkley's testimony that the incident occurred. Recently, in Re Province of Alberta and Alberta Union of Provincial EmDlOYeeS 10 (1987), 29 L.A.C. (3d) 109 (McFetridge, Alberta), the judicia tests for determining credibility were reviewed as follows: In assessing the credibility of Mr. Barkley. we must not only consider whether he gave the appearance of telling the truth but also whether his opportunities for knowledge, powers of observation,. judgment, memory, perception, intelligence, 11 disinterestedness, integrity and veracity were such as to convince the Board that, on a balance of probabilities, he was telling the truth. We are not satisfied that we can accord to Mr. Barkley's testimony the degree of credibility that would permit us to find, on a balance of probabilities, that the alleged incident, in fact, occurred. We are particularly concerned about Mr. Barkley's powers of observation, judgment and memory both at the time of the alleged incident and the time he related it to Mrs. Sowieta. To a certain extent, this concern even carries through to the times when Mr. .Barkley testified at the hearing of Mr. Dubowik's grievance and the grievance at hand. Mrs. Sowieta confirmed in her testimony that Mr. Barkley was under a great deal of personal stress at the time he reported the incident to her. 'When he was asked about this on cross-examination, Mr. Barkley could not recall telling Mrs. Sowieta this but agreed that he was. Mr. Barkley also stated that in April, 1987, when he testified at Mr. Dubowik's arbitration hearing, he was on medication to calm him down and was on the same medication, though a smaller dose, when he testified at our hearing. He explained that the larger dose of medication was probably what caused him to believe that the incident took place in early January but, with the smaller dose, he was able to collect his thoughts and testify at our hearing 12 that the incident took place on December 26, 1985. It seems to the Board that if the agitated condition of Mr. Barkley and/or the medication that he took to control it could cause such a divergence in his recollection of events, it could also have caused a significant divergence between what actually happened on December 26, 1985 and this recollection of it in late January. 1986. The potential for confusion is just too great. We are reinforced in this conclusion by the testimony of Mr. Leatherdale. When Mr. Barkley made out his written report for Mrs. Sowieta, he appended a diagram showing the cleaner standing to his right and slightly behind him at the time of the incident. The cleaner had to be Mr. Leatherdale because he was the only cleaner on duty in cottage 03 on the day in question. Yet when questioned by the Assistant Administrator, Mr. Leatherdale indicated that he did not see any such incident and confirmed this once again in his testimony at the hearing. As far as the evidence indicated, Mr. Leatherdale was an independent, disinterested witness, with no reason to shade his testimony to favour one side or the other. And it seems highly unlikely that if an extraordinary event such as described by Mr. Barkley had occurred, he would have forgotten it. The Board is also concerned about the lapse in memory apparently displayed by Mr. Barkley with respect to the date upon which he made out the written report requested by Mrs. Sowieta. b L 13 Mr. Barkley testified that he made out the report a few days after Mrs. Sowieta called him in to speak to her. This would have been around the latter part of January or early February. ~Yet the report was dated March 10. The Board was not provided with any satisfactory explanation for this rather glaring discrepancy. For all of the foregoing reasons, it cannot be found as a matter of fact that the incident upon which the discipline herein was based actually occurred. This is as far as we need to go in the matter, for in light of this finding the discipline must be struck down. Accordingly, the grievance is allowed and the Ministry is directed to remove from the record of the grievor ,the letter of reprimand in question. DATED at London, Ontario, this 20th day of October, 1988. aon