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HomeMy WebLinkAbout1987-0232.Evelyn.88-11-29I 7,: % ONTAm CROWN EMP‘OY& ENPior.csoEucouRoNNE OEKL’ONTARN) . j GRIEVANCE C$lMMISSION DE 33&i--LMENT REGLEMENT DES GRIEFS 180 0”NOA.S STREET WEST, TONONT(x ONTARIO. MS0 US-SUITE21W ,SQ,l”E 0”NOA.S OUEST, TORONTO, (ONTARIO) N5Q 7ZS-S”REA”2,~ TE‘EPNONE/T&tPNONE (lls,5ss-w88 IN THE MATTER OF AN ARBITRATION 0232187 Under 'THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Winston Evelyn) - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Grievor Employer I. C. Springate Vice Chairperson J. Anderson Member M. F. O’Toole Member For the Grievor: J. Mosher Counsel Cowling and Henderson Barristers and Solicitors For the Employer: E. Maksimowski R. Anderson Counsel Ministry of Community and Social Services HEARINGS : September A, November 16 December 14 and 21, 1907 January 5, 11, 12, 13 April 22, May 4, 5 and 17, 1988 . The grievor alleges that he was discharged by the employer without just cause. Prior to his discharge the grievor was employed as a Correotions-Officer at the York Observation and Detention Home in Toronto. The Home is designated as a secure detention facility under the Young.Offenders Act. The residents of the Home are young people who have been charged or convicted of a criminal.offence committed when between the ages of 12 and 15. Most residents of the Home appear to be between the ages of 14 and 16. Most residents of the York Observation and Detention Home have either been charged, or convicted, of a serious offence or have a history of delinquency. One witness referred to them as “veterans” of the juvenile criminal justice system. Many of the residents have lived “on the streets” without parental guidance for extended periods of time. A large proportion of the female, residents have worked as prostitutes. A number of females who were residents of the Home during’the time the grievor was employed there were called as witnesses by, the employer. They testified with respect to events alleged to have occurred up to two years previously. When they gave their evidence they were between the ages of 15 ? I ; A r -2- and 18. Had we not been advised of their ages, on the basis of their demeanour, dress and physical appearance we would have judged them to be several years older. The York Observation and Detention Home is an institution with locked doors and restricted freedom of movement. Although staff are encouraged to act as advisors and counsellors to the residents, their prime responsibility is to.ensure that residents remain in the institution under tight control. Ms. Marilyn Renwick, the current Superintendentof the Home, testified that notwithstanding its custodial role, the Home seeks to be a place of physical and emotional security for its residents. In this regard, she indicated that many of the residents are not only offenders but victims as well. At the time of the events described below, the grievor was in his early 30s. When in his 20s he had two conflicts with the law. In 1973 he was charged with attempted theft, possession of burglary tools and possession of a dangerous weapon. The grievor testified that he pleaded guilty to certain~ lesser charges, although he did not specify what those charges were. In 1978, following a trial, the grievor was convicted of possessing stolen property. On both occasions he was put on probation. The grievor subsequently decided to. - 3 - avoid any further conflict with the law and also to assist others, particularly young people, to do the same. In January 1984 the grievor started working as a Volunteer Placement Advisor with the Scarborough Branch of the Volunteer Centre of Metropolitan Toronto. In this position he interviewed prospective volunteers and referred them to positions in a variety of different agencies. He subsequently did follow-ups to assess whether the volunteers were working out in the positions to which they had been referred. In October of 1984 the grievor started as a volunteer with the Juvenile Justice Volunteer Program operated by the Ministry of Community and Social Services. He worked- primarily as a, Court Intake Officer, dealing with young offenders who had been placed on probation or directed to perform community service work. The grievor won the respect of his supervisors, Court officials and the police for .the professional manner in which he performed his duties, as well as for his ability to interact with young people. On May 25, 1985 the grievor was awarded a Community Service Award by the Ministry of Community and Social Services. A number of other volunteers received similar awards at the same time. The grievor testified that he had filled in all of the award forms utilizing his skills in calligraphy. i, il ‘,, i II - 4 - on June 4, 1985’the grievor obtained paid employment as a Corrections Officer at the York Observation and Detention Home. Initially he was employed pursuant to a 24-hour per week contract, but after four months this was raised to 40 hours per week. On July 4, 1966 the grievor was admitted into the classified public service as a probationary employee. He was still a probationary employee when discharged on February 10, 1967. The grievor adapted quickly to the work of a Corrections Officer. He was willing to help other staff and to work overtime when requested to do so. He was well liked by most of-his co-employees. He was also liked by most of the residents, in part because they felt he did not treat them as criminals. Initially he also enjoyed the respect of most of his supervisors. On November 16, 1985 Mr. Hugh Robinson, the ~Program Manager at the Home, had occasion to write the grievor to counsel him concerning certain conduct on his part, including contacting ex-residents of the Home contrary to established policy. In doing so, Mr. Robinson made it clear that he was not doubting the grievor’s motives. Mr. Robinson’s letter read, in part, as follows: In discussing these facts with you, Mr. Evelyn, I am of the opinion that your motives and intentions have a sound value base.- I’am in :, i -5- agreemeht with you that, as Observation and Detention Home Workers, we have much help -to offer the children and that, occasionally,.this help can extend beyond the walls of this facility. Your [sic] have erred, however, in not clarifying to yourself the policy of this facility which clearly states that you must receive permission for any outside contact with the children. This is a vital and necessary policy that must be followed for the protection of both staff and children. On October 1, 1986 a male resident at the Home alleged that the grievor had engaged in sexual relations with two former female residents. At the hearing, both parties agreed-that in light of the provisions of the Young Offenders Act it would be appropriate for the Board to.refer to young - persons by their irritiais. The resident who raised the allegations was B.A. He contended that the grievor had sex with S.D. as well as with his girlfriend, B.P. B.A. is an open racist. The grievor is black. Further, on at least one occasion the grievor had awarded B.A. low marks for his behaviour, which in turn disentitled B.A. from certain privileges. While B.A. did not testify in these proceedings, the evidence given by the staff at the Home indicates that he is the type of individual who is not beyond trying to get back at the grievor for awarding him low marks by raising false allegations against him. The grievor testified that on one occasion in 1986, B.A. expressly threatened that he would make him lose his job. ., ‘i A I The employer did not rely on the statements made by B.A. Instead, it initiated an extensive investigation into the grievor’s conduct during which a number of residents and ex-residents of the Home were interviewed. On October 17, 1986 the grievor was suspended pending completion of the investigation. He subsequently met twice with Ms. Renwick. During these meetings he was’advised of the results of the employer’s investigation and provided an opportunity to respond to them. On February 10, 1987 he was dismissed. As already noted, the employer called a number of young fema.les as witnesses. The grievor, to a greater or lesser extent, disputes the evidence of all of them. Given the serious consequences of a finding adverse to the grievor,.we are satisfied that although this is a civil and not a criminal proceeding, the employer is required to prove the truth of the allegations against him by way of clear and compelling evidence. Further, we are mindful of the fact that Corrections Officers at the Home are particularly vulnerable to false allegations of misconduct raised by residents. Both Mr. Allan Calverly, a Corrections Officer who testified on behalf of the employer, and Mr. Peter Davis, an Officer called as a witness by the union, testified that various residents at the Home had threatened to make false allegations against them. .a ‘- 7 - The need to be vigilant to ensure that the grievor is not the innocent victim of false allegations does not mean that the evidence of all of the young people who testified must automatically be rejected. Rather, the evidence of each must be carefully weighed in light of all relevant considerations. It is the contention of the union that when assessing the evidence of the juvenile witnesses, we must bear in mind ~their individual backgrounds, including the fact that a number are known prostitutes. While we accept this as a general proposition, the fact that the juvenile witnesses have all engaged in criminal activity and that many have worked as prostitutes does not. necessarily result in their evidence being rejected. Equally, the fact the grievor has an adult criminal record is not a proper basis for concluding that his evidence must. be rejected. Employer counsel made much of a number of discrepancies between the evidence given by the grievor and that given by witnesses other than the two who claimed to have had contact of a sexual nature with him. Many of these discrepancies related to matters of detail or events of relative unimportance. This type of conflict in the evidence may have been due to differing perceptions of events or to lapses in memory. A number of other conflicts’in the evidence, however, cannot be so easily explained. - 8 - Ms. A.M., an ex-resident of the Home, was called as a witness,by the employer in support of its contention that the grievor had given gifts and written notes to a number of female residents. The grievor readily admitted to having done so. Further, at the relevant time the Home had no clearly stated policy governing the giving of gifts or writing of notes to residents. These practices were engaged in openly by staff other than the grievor. In these circumstances the giving of gifts and notes to residents could not, by itself, constitute grounds for the imposition of any discipline. It was A.M.‘s evidence that when she was a resident at the Home, the grievor provided her with two magazines. Just prior td when she left the Home the grievor slid a note under her bedroom door. A.M. testified that the note merely urged her to behave herself and .stay out of trouble. She further stated that the grievor had not made any improper advances towards her either when she was a resident of the.Home or subsequently when she happened to bump into him at a 7-Eleven store. There is nothing about A.M.‘s evidence which indicates that she was deliberately telling untruths in order to support false allegations against the grievor. Indeed, her evidence generally paralleled that given by the grievor concerning his dealings with A.M. There was, however, one aspect of A.M. ‘s evidence which conflicted in a material way with that given by the grievor.’ A.M. testified - 9 - that on the note she received’from the grievor there were two telephone numbers, one of which was for an answering machine. The grievor acknowledged that he utilizes two personal telephone numbers, one for an answering machine. The grievor insisted, however, that the note he gave to A.M. did not have any phone numbers on it. , The grievor’s evidence also conflicted with certain of the evidence given by Corrections Officer Tim Watson. Mr Watson testified that in the latter part of 1986 he was work on a ward referred to as the upper co-ed unit, when the grievor, who was working on the boys unit, came to see him. ing According to klr. Watson the grievor aeked if female resident B.P. could be released into his custody to perform some work chores on the boys unit. The practice at the Home is for residents to perform chores only on the unit in which they reside. Mr. Watson testified that he refused the grievor’s request and indicated that he should raise the matter with David Fraser, the shift supervisor on duty. According to Mr. Watson, the grievor walked away saying he knew what Mr. Fraser’s response would be. The grievor’s version of what occurred is quite different. According to the grievor, he was on the upper boys unit looking after 4 boys at a time when most residents were in other parts of the building. He testified that MC. Watson came to him and asked if he could also’watch . - 10 - B.P. since she was the only resident on the upper co-ed unit. According to the grievor, he declined Mr. Watson’s request. to why Mr. The grievor did not advance any logical.reason as Watson would give false evidence concerning this incident. .There were several discrepancies between the evidence given by the grievor and that of S.D, a known prostitute. The grievor does not dispute that he spent considerable time with S.D., and visited her at times when he was not working on her unit. He also acknowledged that he had given her magazines, socks and, once late at night when she could not sleep, a hamburger, french fries and soft drink which he purchased at a nearby Harvey’s restaurant. . It was the grievor’s evidence ~that he saw a lot of potential in S.D. and felt he could assist her to,better her life. FoC her part, S.D. testified that she regarded the grievor as “cute” and acknowledged that she had a crush on him. Although the initial allegations raised by B.A. included a claim that the grievor had engaged in sexual relations with S.D., when testifying in these proceedings S.D. denied that this had been the case. She also insisted that the grievor had not made any improper advances towards her. The impression we received from S.D.*s evidence is that she liked the grievor, and would not give false evidence for the purpose of raising or supporting false allegations against him. Nevertheless, certain aspects of her evidence’did conflict with the evidence given by the grievor. 11 - 11 - Until told by another staff member to put it away, S.D. openly displayed a photograph of the grievor in her bedroom. According to the grievor, the photograph was a full length photo of himself wearing a track suit. Both S.D. and the grievor testified that the grievor had given the photo to S.D. at her request. Both also testified that the picture was in a paper frame, and that 'on the frame was written the grievor's phone number as well as his answering machine number. Their evidence differed, however, as to how the phone numbers came to be placed on the frame. S.D. stated that the grievor had written the phone numbers on the frame in response to her request that he do so. The grievo,r, however, testified that he had originally placed the phone numbers on the frame with the intention of sending the photograph to someone else. He stated that he later decided not to send the photograph to this other person, and when he subsequently gave the photo to S.D. he had forgotten that his phone numbers were on the frame. As detailed below, union counsel advanced arguments as to why both of the witnesses who claimed to have had contact of a sexual nature with the grievor might have given false evidence against him. No rational explanation, however, was advanced to explain why Corrections Officer Tim Watson or residents A.M. and S.D. would do so. As already noted; S.D. - 12 - admitted to having a crush on the grievor. In the circumstances, we are led to accept the evidence of these witnesses wherever it conflicts with that given by the grievor. On or about October 1, 1985 the grievor provided S.D. with a poem written in calligraphy. S.D. was 16 at the time. The document read as follows:. To - S-- Let me see. 1st Ott 1985. Eyes aglitter, eyes aglow I look into your eyes and know The innermost thoughts not revealed The inner secrets about the way you feel Your eyes are wonderful, really unique not only do they see, but can also speak some eyes tell stories Of long ago depression and death A life of sorrow You read the wrinkles line by line They relate a story unknown to our time Eyes aglitter, eyes aglow It is possible to understand your woes Let your eyes speak to me Open your heart and confide in me. From Tony. - 13 - The original of the poem appeared in the “Poets Corner” in the June 21, 1985 edition of the Toronto Sun. Under the poem the newspaper listed the name of its author, Ms.& Pauline Huclock. When being cross-examined by union counsel, it was put to S.D. that she had given a copy of the poem taken from the newspaper to the grievor and asked him to copy it out in calligraphy. S.D. replied that she had no recollection of having done so, but indicated that if the grievor said she had asked him to do so, she would not say he was wrong. The grievor testified that S.D. had asked him to write out the poem in calligraphy. He indicated that the name “Tony” is what he is called by his friends. .The practice at the Home is for residents to refer to staff members only by their last name. The grievor testified that he wrote “from Tony” at the bottom of the’poem as ,the writer of the poem in. calligraphy. He further stated that he had not intended to personalize the document, and now realized that he should have addressed it “For S--” rather than “TO S--“. At about the same time that the grievor gave S.D. the poem referred to above, he also gave her a lengthy handwritten letter. The full text of the letter follows: Ott lst/1985. Dear S- You said you never lie to me, and for that i will try my best to help you in anyway i can. It’s only in the past few week that i saw the love for me in your face. My only wish is that you would try not to show it so openly, most of the staff and kids can see I do care for you, and really want to help you in anyway i can. I want to put you back on the right track. YOU have a lot to offer and i don’t mean love and sex, you have other outstanding qualities that can be put to good uses. I told you if you go back to your ‘old way of doing things, you can forget about me helping you or.being there for you when you really need me, and I mean it. You don’t need the old way to make a living. You have got great potential to do a lot better and be a smarter person for it. I don’t want you to do it for me, but do it for yourself. You know-how i feel about the way you treat the other staff members and I want you to start c treating the staff.with more respect and if you are going to do that, you write me a letter promising me you will~try to show some respect, if you don’t you know what can happen. It is getting too hard for me to cope with the staff, after you have just given them a hard time. This is no joke and the sooner you start to help yourself, you will find that you not only feel good about yourself, but you will also find others willing to help aswell. The only reason i put up with you, because i care and i see the good in you. I think you are capeable [sic] of a lot more.than you are showing. For the sake of yourself and for the love you have showed me, try to do much better than you are doing now. One thing i notice, is when you are on you own you are much better behaved but put you with others and you start causing all kinds of trouble this has go to stop. I don’t want to tell you how to live your life, but if you want me in the picture, you will ,have to do’some things my way. You say you never lie to me, and . - 15 - I know you don't. Tell me do you really care about me as you say you do, and if your answer is yes. Prove it! Prove it! by doing, as i have asked of you. I promise you i would stand by you no matter how long you have to spended [sic] lock / up* and i will keep my promise as long as you show me you need my help. If you should ever feel, you don't need me around any more, please! let me know, please. and I will let you do as you The choice is yours. I don‘t want to see you wasting you life anymore. So in closing, i will be watching you very closely to every move you make and reading the reports as they are write on you; We have spend enough time with each other, to know that i am not joking and if you care about me as you say, you will make me very proud of you no matter where you are. So until I hear from you, stay as sweet as you are and stay out of trouble. love as always Tony. S.W.A.S.R. xxxxx. (4 you and me always 2 gether 4 ever.) The employer contends that this letter was a love letter. The grievor denied that this was the case. He testified that the letter was meant only to show S.D. that she had a lot to offer and that someone was in her corner. As for the "Love as always Tony" at the end of the letter, the grievor claimed that this reflected his love for S.D. as a child. He stated that he put "4 you and me always 2 gether 4 ever" on the r :? L A i - 16 - letter only because S.D. had written it on a note addressed to him and he saw nothing wrong in sending it back to her.. He explained that he also put "S.W.A.5.K xxxxx" on the letter for the same reason. He added, however, that at the time he did not know that "SWAK" meant sealed with a kiss, or that "x" indicated a kiss. It was clearly inappropriate for the grievor to give the poem and letter to S.D. .Even accepting the grievor's evidence that he was asked to copy the poem, it would have been much more appropriate for him to have simply copied the poem, including the name of the poet, rather than omitting ~the poet's name and personalizing the text by adding "TO S--" at the top and "From Tony" at the bottom. The letter is even more disturbing. Although it can be read as a letter of encouragement, it might also be interpreted as a love letter. To send.a letter capable of being so interpreted to a 16-year old resident of a detention facility reflected, at best, extremely bad judgement. We turn now to the first allegation of misconduct of a sexual nature raised against the grievor. The only witness to testify with respect to this alleged incident was MS. T.C. T.C. testified that when a resident of the Home in the summer of 1986, the grievor came into her bedroom at about lOi p.m. - 17 - after she had already gone to bed. She testified that the grievor.had previously unlocked the bedroom door so as to allow her roommate, S.G., to go to the washroom. According to T.C., the grievor came over to her bed, kissed her and touched her breast, to which she raised an objection. The records of the Home indicate that the grievor worked on the unit in question in 1986 at ‘a time when both T.C. and S.G. were residents of the unit. The grievor, however, flatly denied engaging in the conduct in question. Although the evidence indicates that the grievor would have had the opportuni.ty to engage in the conduct complained of, a number of factors mitigate against him having done so. Firstly, there is nothing in the evidence to indicate any reason why the grievor might have felt he could take liberties with T.C. Had T.C. called out for assistance, she could have attracted the attention of a second staff member working on the unit. The hallway in the unit is carpeted. Accordingly, T.C.‘s roommate could have returned to the room undetected and discovered the grievor. If the roommate, or anyone else for that matter, had come upon the situation, they could have closed the bedroom door and thereby locked the grievor into the room. Bedroom doors cannot be opened from the inside even with a key. It seems highly improbable that the grievor would have taken these kinds of risks. - 18 - .Also relevant is the evidence relating to T.C.‘s. character. Corrections Officer Robert Forestell described T.C as self-centred and a person who likes to be the centre of attention. She has, at times, resorted to telling false tales so as to remain at the centre of attention. Union counsel contended that when the employer conducted its investigation into the grievor’s conduct, T.C. invented a story about the grievor coming into her bedroom so as to ensure that she would be at the centre of attention. In light of the evidence, this is’ a real possibility. In all the circumstances, we are led to conclude that the evidence falls short of establishing that the grievor engaged in any impropriety with respect to T.C. ’ This brings us to the evidence of B.P. B.P. has been a resident of the Home on some 10 different occasions, including the fall of 1985. The grievor acknowledged giving B.P. magazines, socks and a wrist band. At times when he was not working on her unit, the grievor paid her visits. B.P. testified that while a resident in the Home, the grievor indicated to her that if she got so many points for good behaviour in a given week, he would buy her a pizza. She further testified that when she left the Home, she and the grievor exchanged phone numbers and that she subsequently talked with him several times on the phone. According’ to B.P., - ld - "just after Christmas" the grievor telephoned her and a,sked i'f she wanted to go for her pizza, to which she replied in the affirmative. At the time B.P. was 14 years old. When being cross-examined by union counsel, B.P. initially' indicated that she had met the grievor a day or two after Christmas, but then stated that she was pretty sure it had occurred on Boxing Day. The grievor denied having any discussion with B.P. about a pizza, denied giving her his phone number, and denied asking her out for a pizza after her release. It was i3.P.'~ evidence that when she met the grievor the following events occurred. About noon the grievor called for her at her sister's house in Scarborough where she was then living. He drove a white car with a burgundy interior which he said belonged to his brother. The grievor was wearing a track suit. He indicated that he wanted.to go home and change. He then drove B.P. to his mother's house in Scarborough. He went into the house by a side door, and B.P. followed him in. They went downstairs to the grievor's bedroom in the basement. Once in the bedroom they each had a drink, and then made love on the grievor's bed. Subsequently, they showered together in a washroom also located in the basement. The grievor then drove her home. - 20 - The grievor denied that any of the above had occurred. He~testified that neither he nor his brother owned a white car with burgundy interior. He also testified that he spent Boxing Day, 1985 with his son at the home of his ex-wife. The union called as a witness Ms. Greta Francis, the grievor's ex-wife. Ms. Francis testified that although the grievor had not visited their son very often subsequent to their divorce in 1982, and never before at Christmas, she recalled that in 1985 the grievor had visited her son on December 26, 1985 from-about 9:30 a.m. to 10:00 p.m. Based on the evidence of Ms. Francis, it is clear that the grievor could not have been wi\h B.P. on December 26, 1985. Giventhat B.P. indicated she was reasonably certain that the events she described occurred on Boxing Day, this tends to somewhat weaken her evidence. It is of interest, however, that the Home's records indicate that the grievor was off work not only on December 26th, but the following day, December 27th, as well. On December 28th he did not start work until 3:20 p.m. The most compelling aspect of B.P.'s evidence relates I to her description of the grievor's home. She testified that the grievor shared the home with his mother and brother. The grievor acknowledged that at the time he and his brother lived i - 21 - in a home in Scarborough owned by their mother. B.P. testified / that although the house had a front door, she and the grievor entered by a side door.- Under cross-examination the grievor acknowledged that the house has both a front door and a side door. He further indicated that the front door is not utilized because it is blocked by his mother’s plants. B.P. testified that on entering the house through the side door, there were stairs leading upstairs and another set leading downstairs to the basement. The grievor’s evidence indicates that this is, in fact, the case. B.P. testified that the kitchen was located at the top of the stairs going up. The grievor testified that one cannot actually see upstairs from the side door entrance, but must first start up the stairs. The grievor acknowledged, . however, that the kitchen is located at the top of the stairs. B.P. stated that the grievor’s bedroom was in the basement of the house, and that he shared a large room with his brother. The grievor acknowledged that his bedroom was in the basement and that he did share it with his brother. B.P. stated that the room contained two queen size water beds. The grievor testified that at the relevant time he and his brother both had water beds. He testified that his was queen size, although he did not know the size of his brother’s bed. B.P. . stated that there was a laundry room in the basement as well as a washroom where she and the grievor had showeted. The grievor - 22 - acknowledged that there is a laundry facility in the basement as well as a bathroom with a shower. There were certain aspects of B.P.‘s description of the grievor’s bedroom that the grievor did not touch upon when giving his evidence. B.P. testified that the walls were made of wood, .that because the window was not very big it had a sho’rt curtain and that there was a rug on the bedroom floor, although she could not recall its colour. She further stated that there was an old shower stall in the bathroom which was . quite small. In that the grievor was not asked about these matters, he did not confirm B.P.‘s evidence on point. Neither, however, did he dispdte her evidence. There were certain aspects of B.P.‘s description of the .grievor’s bedroom that the grievor did challenge. B.P. stated that the grievor had some photographs on the headboard .of his bed. She also stated that she did not recall a television in the room. The grievor acknowledged that at the time his bed had a headboard, but stated that there were no photographs on it. He also testified that at the bottom of the bed was a table with a-television on it, and in the same area I were two glass shelves containing a number of items, including photographs. : - 23 - Although there'were some discrepancies with respect to the details, 8.P~. gave a remarkably accurate description of the grievor's home and bedroom. The description of the bedroom was particularly telling.given that it described a somewhat ,. unusual room. The grievor explained B.P.'s ability to describe his bedroom by saying that at the Home he had mentioned that he had a water bed. This was confirmed by Corrections Officer Patricia Cook. With respect to the other details concerning his home, the grievor hypothesized that B.P. had looked in through the bedroom and washroom windows, or that friends of hers had broken into his home. We believe these explanations to be farfetching. The more likely explanation, and the one which we accept, is that B.P. was in the.grievor's bedroom and had sex with him. Subsequent to the events described above, B.P. became B.A.'s girlfriend. Union counsel contended that B.P. may have given false testimony in order to assist 8.A~. to "get even" with the grievor. Under other circumstances this argument might have proved convincing. It does not, however, explain how B.P. could give a detailed description of the grievor's bedroom. In August of 1986 B.P. once again became a resident of the Home. She was 15 at the time. It was during this stay that the grievor asked Corrections Officer Tim Watson if B.P. could be released into his custody to perform chores on the boys unit. On or about September 23, 1986 the grievor-was cautioned by shift manager David Fraser about his visiting B.P. on the upper co-ed unit when he was not working on the unit. B.P. testified that~ at about lo:15 or lo:30 p.m. on a day late in August the grievor came to her bedroom on the upper co-ed unit. She did not have a roommate at the time. According to B.P., the grievor stood in the doorway with his back in the hall and asked her to perform oral sex on him. She testified that she initially refused this request, but when the gri’evor persisted she agreed to do so. She stated that the grievor pulled down the front of the track pants he was wearing, at which point she knelt on the floor and performed oral sex on him for about 10 minutes. B.P. initially stated that she stopped doing so because she found the act “disgusting”. Subsequently she stated that the real reason she stopped was a concern that other staff might discover them. It was B;P. ‘s evidence that earlier when she went to her bedroom two other staff members were in the lounge of the unit doing paperwork, and she assumed they were still there. The records of the Home indicate that in late August the grievor did not work on the upper co-ed unit on any evening - 25 - between 1O:lS and 10:30. ‘They do, however, indicate that the grievor worked on the upper co-ed unit on both August 18th and 20th starting at about.ll:lO p.m., and that on both evenings he performed the every 15-minute bed checks on residents required by the Home. The grievor denied having oral sex.with B.P. He 0 testified that he never wore a track suit at work.unless he was in the gymnasium or going from the gymnasium to get supplies. The evidence indicates that staff are generally expected to “dress up” when working the day shift because they~ might be called upon to interact with persons from outside the Home. In the evenings, however,.it is common for staff to wear jeans or track suits. In assessing the conflicting evidence with respect to this alleged incident, three factors weigh against accepting B.P.‘s evidence. The first is that if the incident did occur, it would have had to have been an hour or more after the time given by B.P. The second factor relates to the change in B.P.‘s explanation as to why she stopped performing oral sex on the grievor. The third, and most weighty consideration, is the fact it would have required a high degree of audacity for the grievor to engage in such conduct in light of the possibility that he might be discovered by another staff member. There r’ ,I . ? - 26 - are, however, certain other considerations which do support B.P.‘s allegation. As detailed above, B.P. and the grievor had previously engaged in sexual intercourse. After B.P.‘s return to the Home, the grievor continued to pay attention to her. He unsuccessfully tried to have B.P. put in his care on the boys unit. After the alleged incident, the grievor was cautioned by his shift leader about visiting B.P. Finally, there is the matter of the grievor’s credibility. In addition to the other areas referred to above where the grievor sought to mislead us, there is the matter of the grievor’s prior sexual involvement with B.P. For the re.asons noted above, we are satisfied that the grievor gave false testimony with respect to that episode whereas B.P. told the truth. Taken together, these ‘. considerations lead us to conclude‘that B.P., and not the grievor, was likely telling the truth about this second incident as well. The grievor had the potential to be an excellent youth worker and corrections officer. He did not, however live up to his potential. He sent S.D., a 16-year old resident, a letter which might be interpreted asa love letter. He provided the same resident, as well as others, with his home telephone numbers. He invited B.P., a former resident, aged 14, to his home where he had sexual relations with her. He did so after being advised by the Home’s Program Matiager - 27 - that he should not have contact with former residents without permission. The grievor subsequently engaged in sexual conduct with the same juvenile, now aged 15, at the Detention Home. It is clear that S.D. did not object to receiving the letter from the grievor. On the grievor’s own evidence she had previously sent him at least one letter signed off with “S.W.A.5.K. xxxxx” and “4 you and me always 2 gether 4 ever”. For her part, B.P. was a willing participant in their two sexual encounters. Both of these females looked considerably older than they were and both were far more experienced;than most girls their age. These considerations do not, hiwever, assist the grievor. He knew that the females in question were juveniles. He had been told not.ta have unauthorised contact with ex-residents. When the two females were residents of the Home, he exercised custody and control over them. In all the circumstances we are satisfied that the grievor abused his position and by so doing, gave the employer just cause to’discharge him. In reaching this’conclusion welhave rejected union counsel’s contention that if we were to decide that the .grievor committed the acts complained of, we should direct that he be reinstated to a position which did not require direct contact with juveniles. The grievor was employed in the classified service for about seven months. He abused his position of trust in just about the worst way possible. There is no . - 28 - lbgical reason why ‘this. Board should mitigate the penal& of discharge. The grievance is hereby dismissed. DATED AT AJAX THIS 29th DAY OF NOVEMBER, 1988. l&L -..-.--.._.._ -..-