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HomeMy WebLinkAbout1987-2386.Kumal.89-01-18’ n kOARD COMMISSION DE SEll-LEMENT RiGLEMENT DES GRIEFS IN THE MATTER OF AN ARBITRATlON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (G. Kumal) - and - The Crown in Right of Ontario (Ministry of Transportation) Before: -- Eric K. Slone Vice-Chairperson J. Solberg Member E. Orsini &mber For the Grievor: David Wright COUllSQl Gowling & Henderson Barristers & Solicitors For th? Employer: R. Filion COUllSt=l \Jinkler, Filion Rarristers 8 Solicitors A. P. Mag?e Manager Staff Relations Ministry of Transportation May 26, 198R October 28, 19% Oc~tober 31, 198P Novpmber 23, 19R@ DECISION This is a very sad and troubling case. The Grievor was dismissed from his job as a microfilm operator with the Ministry of Transportation on December 17, 1987. In his grievance, the complaint is stated as follows: "I grieve that I have been unjustly dismissed. I have also been denied my rights under the Human Rights Code and have been discriminated against in my dismissal from employment at M.T. Kingston." The grievance goes on to request the following settlement: "That I be reinstated to my position at M.T. Kingston with full retroactivity in regards to pay and benefits resulting from dismissal using any act or documentation that will resolve my grievance." Let it. be said at the outset that there was absolutely no evidence adduced of any discrimination or denial of rights under the Human Rights Code. The case was presented purely as a discharge grievance. FACTS The Board was presented with two diametrically opposite versions of the relevant events. We are compelled to choose between them, and make serious findings of credibility. Essentially, there is the version of events put forward by the Grievor, and the version of events put forward by one Todd Muller, who was a co-worker with the Grievor. Each of the Grievor and Muller contends that the other was - 2 - subjecting him to sexual harassment. We must decide who was harassing whom. TODD MULLER'S STORY Muller and the Grievor had been working together for three or fOUr years in the microfilm department of the Ministry at Kingston. Muller testified that in early 1986, he noticed a change in the attitude of the Grievor toward himself. One day, he noticed that the Grievor seemed 1. particularly uncomfortable all morning. In the mid- afternoon, the Grievor handed Muller a note saying "Do you want to take advantage of me?" Muller says that he turned to the Grievor, and asked him "What are you, queer?" Muller ' says that he destroyed the note, and the incidnnt was dropped with both he and the Grievor feeling somewhat uncomfortable. Over the next months Muller began to notice that the Grievor was paying undue attention to him. He felt that the Grievor was emulating his choice of clothing, cars and hairstyles. More disturbing, he says that the Grievor began to follow him into the washroom and confided intimate details about his unhappy marriage. Muller perceived that the Grievor was in need of a friend, but felt that the Grievor's attentions were becoming too intense. He advised the Grievor to get some professional help. As time wore on, Muller began to notice the Grievor constantly staring at him, which made him feel uncomfortable. Muller was embarrassed by such attentions, - 3 - particularly because he knew that the Grievor was married and he felt sorry for the Grievor's wife. By mid-1987, the approaches of the Grievor to Muller became increasingly sexual and explicit. It is sufficient for purposes of this Award to say that Muller claimed to have been explicitly propositioned on at least one if not more occasions. As well, he claims that the Grievor confessed that he was in love with him. 2. Muller testified that he rebuffed these advances with increasing directness, but the Grievor was not taking "no" for an answer. At one time the Grievor asked Muller "Is it because I am married? Would it be better if I got a divorce?" Muller says that he again told the Grievor to get some professional help if he had problems, but to leave him alone. Muller says that he was then given the last of a series of notes, being the only one that he kept. That note was marked as Exhibit 2 at the hearing and became a very important piece of evidence. It is printed by hand, and reads as follows: "Hi there I need an honest answer from you if possible today some time. I would like to know your feelings please do be honest to me ok. I am seeing a lawyer tomorrow morning at 9:30 a.m. Lets put it this way ok the hell I am living in will soon be over for me." Muller said that he was very disturbed by this note, - 4 - and after showing it to his mother who also worked in the Ministry, took it to the Human Resources Officer, John Kenney. Muller told Kenney the whole story. Kenney said to leave it with him and that he would meet with the Grievor. By now, it was mid-August 1987. Muller had a further conversation with Kenney, where Kenney reported to him that he had met with the Grievor who had denied everything. Kenney advised Muller to just try and keep out of the Grievor's way. Fa'r the next little while there was a slow down of the pattern OF unwelcome attention. Then, Muller was transferred on secondment to another section on a different floor of the same building, and for a while had limited contact with the Grievor. While he was on that secondment, Muller claims that he began to hear rumours circulating amongst the staff to the effect that he (Muller) was homosexual and that he had made advances to the Grievor. This made Muller furious. He confronted the Grievor in a cafeteria, where he angrily threatened him with physical violence for spreading these rumours. In fact, under cross- examination Muller recalled an earlier incident where he had made a milder form of threat to the Grievor after learning that the Grievor had made a complaint to their supervisor about Muller's alleged harassment of him. - 5 - JOHN KENNEY'S EVIDENCE John Kenney testified that Muller brought in the note, Exhibit 2, and made thee complaint that the Grievor was harassing him. Muller told Kenney that he was afraid that the Grievor was potentially suicidal, and didn't want that kind of responsibility. Kenney obtained some advice from other Ministry staff relations people and decided to have a private talk with the Grievor. According to Kenney, the Grievor denied the allegations with the protest "I don't know 1. why he would say that. I an a happily married man, trying to have a child." The Grievor went on to suggest to Kenney that perhaps Muller had simply misinterpreted casual contacts between then. What is very significant about Kenney's evidence is that he was positive and unshakable in his testimony that at no tine during this interview did the Grievor ever complain that he was being harassed by Muller. I ;::: . .._ EVIDENCE OF MIKE NAGEL Nagel is a manager in the department notionally three rungs above the Grievor and Muller. On or about August 14, 1987 he became aware that Muller had approached John Kenney with a complaint about being subjected to unwelcome attentions by the Grievor. On September 14th, the Grievor came to see him and first made a complaint to him about Muller following him around. The Grievor also complained about an obscene phone call which he attributed to Muller. - 6 - Nagel was emphatic that prior to September 14th, he had heard . ., of no complaints by the Grievor about Muller. Nagel was trying to smooth things over and not see then get out of hand. He wanted to know if the Grievor was considering filing any form of complaint. The Grievor said he didn't want to get anyone in trouble, but would think about it. Nagel then met with Muller to inquire of Muller what he planned to do. Muller said that he only wanted to have the untrue rumours stopped. On September 21 Nagel met with the Grievor again, who told him that he was not proceeding with the complaint. Nagel presumably thought the matter was at an end. EVIDENCE OF FAY BROWN : .:, Fay Brown was a supervisor in the microfilm department at the relevant tines. She testified that sometime in early October 1987, the Grievor came to her with his complaint about being harassed by Muller. Muller had never complained directly to her. The substance of the complaint to her by the Grievor was that someone was spreading rumours that he was gay, and that he had been getting numerous harassing phone calls. Ms. Brown was very certain that this complaint was lodged with her in early October because it coincided with the departure of her direct supervisor. - 7 - EVIDENCE OF STEVE PAQUETTE Steve Paquette was a microfilm operator in the same section as ~Muller and the Grievor. He was a close personal friend of Muller. Paquette testified that throughout the period of tine from the first note which Muller had received, Muller had confided to him that he was being followed around by the Grievor. Paquette himself witnessed the Grievor staring at Muller on several occasions. Paquette recalled being shown the Exhibit 2 note 1. it. Muller seemed to Paquette the Grievor night be suicidal. shortly after Muller received to be genuinely concerned that EVIDENCE OF DEBBIE IGNAS Debbie Ignas was the group leader to whom both the Grievor and Muller reported directly. One day in August Muller came up to her and showed her Exhibit 2. She testified that she knew immediately upon looking at the note that it was the Grievor's writing. She asked what was going on, and Muller told her that the Grievor had been coning on to him for about a year. It was Debbie Ignas who suggested that Muller approach John Kenney. EVIDENCE OF LAURIE ANN MacDONALD Laurie Ann MacDonald is a well recognised questioned document examiner who was qualified to give expert testimony before this Board. She was asked to determine the authorship - 8 - of Exhibit 2. To perform the necessary task, Ms. MacDonald was supplied with admitted samples of the Grievor's writing. She testified at some length as to the procedures which are accepted in her profession and which she employed in determining whether the writing on the questioned document (Exhibit 2) was written by the same person as the admitted samples of the Grievor's writing. She testified that one .'- looks first to see if there are any noticeable differences between the questioned document and the samples. She concluded that there were no differences between the questioned document and the samples of the Grievor's writing. As additional support for her opinion that the Grievor was indeed the author of Exhibit 2, she pointed to a tell-tale flourish that appears at the bottom of Exhibit 2 and which had been found on numerous samples of the Grievor's writing. Her opinion was that to an extremely high degree of probability the Grievor was the author of Exhibit 2. It must be mentioned that to the six untrained eyes of the members of this Board the resemblance between the writing on Exhibit 2 and upon the known samples of the Grievor's handwriting was remarkable. Indeed, even the Grievor who steadfastly denied writing the note was obliged to agree that the handwriting looks like his own. In view of the implicit - 9 - allegation that Exhibit 2 is a forgery, this Vice-Chairperson asked Ms. MacDonald to give an opinion on how likely it was that such a note could have been forged. It was her opinion that it would be nearly impossible to duplicate someone else's handwriting without leaving some tell-tale signs of hesitation. We were left with the impression that if Exhibit 2 is a forgery, it is one of the most professional forgeries ever perpetrated. THE GRIEVOR'S VERS'%ON OF THE FACTS To put forward-fairly the version of events alleged by the Grievor, we need go no further than to reproduce the text of his complaint that the Grievor lodged to the Ontario Human Rights Commission approximately one month after his dismissal "1 . I was first hired in Toronto in October 1981 and moved to the Kingston office in August 1983. I have worked to the best of my ability and have had no complaints of my work." "2. Mr. Todd Muller and I have worked in the Support Services - Microfilm section since August 1983." "3 . In the spring of 1987, Mr. Muller started making sexual advances towards me which I rejected. He started following me around at work and went so far as to ask me out for a drink." "4 . I started receiving.phone calls from Mr. Muller at work after 4:OD p.m. and at my home. Mr. Muller gets off work at 4:00 p.m. while I work until 4:30 p.m. I approached my supervisor, Ms. Faye Browne, in July 1987, to complain of this harassment. I was advised she would look into it." "5 . I also went, in July 1987, to see my Manager, Mr. Mike Nagal to complain about this harassment by Mr. - 10 - Muller." "6. Mr. Nagal asked me what form this harassment had taken and I replied that Mr. Muller followed me around, followed me to the washroom, waits for me in the parking lot after work and phones me. I told him that Mr. Muller approached me and said, 'You don't look like yourself and you seem to be having problems in your marriage, if I were you I would get out of it if I am not happy.' I told Mr. Nagal I had told Mr. Muller to leave me alone. I indicated that Mr. Muller had also phoned me several times after 4:00 p.m. to ask me if I was interested in his proposal to go out with him. During one of these phone calls he asked me a very personal and embarrassing question 'How long is my . . . ..? I was very annoyed and told him to leave me alone or I would file a complaint of harassment." "7 . Shortly aft& this meeting with Mr. Nagal I was called to Mr. John Benney's office (Personnel Officer). I was told by Mr. Kenney that I was following Todd Muller around and making advances towards him. I told Mr. Kenney that it is not true, it is the other way around and that I an a happily married man with a wife expecting a baby." “8. Mr. Kenney asked that this conversation stay in his office and said 'You know how Toronto people talk.' He was referring to the people that have transferred from Toronto to Kingston. Mr. Kenney is not the Personnel Manager in charge of the area I and Mr. Muller work at but is a personal friend of Mr. Muller." '8 9 . I reported this conversation to my manager Mr. Nagal that same day." "10. Later that afternoon, Mr. Muller approached me in a furious manner, turned the power off the machine I was working on, folded his fist in my face. He told me that several people have said to him that I complained to Mike (Nagal) and he said I had better not mention his name or else it wouldn't be very nice. This conversation was witnessed by another employee." "11. I went and told Mr; Nagal about this incident with Mr. Muller. He advised me he would give me a decision in a few days on what action to take because he had never gone through something like this." "12. I went back to Mr. Nagal in a few days and was told that I could file a complaint if I so desired but that Mr. Muller had been seconded to another area on the - 11 - second floor. I was told the decision is mine if I want to file a complaint or not. I told him since this guy (Mr. Muller) is gone from the area maybe he wouldn't bother me anymore so I let it go." "13. I was not left alone as Mr. Muller was coning down from the second floor into my work area and during these visits he would stand and stare at me. I ignored his attention and it was noted by other workers in the area. I was also receiving anonymous phone calls at work after 4:oo p.m. and at hone, the caller wouldn't say anything." "14. On October 28, 1987, Mr. Muller confronted me in the hallway on my way to the cafeteria and he said he wanted to talk to me. I told him that 'Nothing you said will say is of interest to me'. Then Mr. Muller said 'your wife is spreading rumours about me following you around and word got back to my mother at the switchboard. I am upset out my mother finding out about me following you around and if your wife does not stop it, I will nail her to the wall.' &d then with a folded fist held up he said, 'I will nail both of you to the wall."' "15. After discussing this with my wife that night we went to the Kingston Police Force headquarters and put in a complaint concerning this threat and the threat in July 1987." "16. Mr. Muller continued to phone me at home and insisted on taking me out." "17. On November 10, 1987, I received a call from Mr. Pat McDonald that Mr. Tony Magee from staff relations in Toronto in cominq on November 12 and 13, 1987, and he would like to taik to me. I was advised that this was about the Todd Muller situation. At this point I thought that this was about the verbal complaint I had made to my manager several months ago, so I agreed to this meeting." "18. Mr. McDonald said that Mr. Magee would be speaking to me and then Muller on the 12th separately and together on the 13th. The meeting on the 13th never took place." "19. I came into the meeting with Mr. Magee on my vacation day. I was informed that Mr. Magee was looking into accusations that Todd Muller had made against me. I was not shown a copy of these accusations and was only informed that Mr. Muller said I had bothered him several tines and no dates, time or specific incidents were mentioned." "20. At the end of the interview I was shown a letter by - 12 - Mr. Magee and asked ‘Have you seen this letter? Did you write this letter? and Did you give this letter to Todd?' I replied no to all three questions. The letter was placed back in Mr. Magee's-brief case. "21. Mr. Magee then said that the sane accusations were made on both sides and he would have to look into this. Mr. Magee further asked whether I have spoken to anyone regarding this matter and I told him that I had reported it to my wife and manager." “22. Mr. Magee had a meeting with my wife two weeks later and she told him she had seen Mr. Muller following me around and waiting for me in the parking lot. He gets off at 4:00 p.m., I get off at 4:30 p.m." “23. My supervisor, Faye Browne, told me she was contacted by phone and asked the following questions by Mr. Magee. (1) Did GeorgB ever complain to you that Todd is harassing him? (2) Did George ever complain he was reCeiVing phone calls? (3) Did Mr. Muller ever complain to you? She said she answered yes to the first two and no the third question." “24. I didn't hear from Mr. Magee again and tried to contact him three weeks later. He returned my call and said he was still working on the matter." “25. On the December 8, 1987, Mr. Pat McDonald contacted my wife as I was unavailable. He stated Mr. McGee was still working on the matter and we should hear in a short while. The next thing I heard was on December 18, 1987, when I got my letter of dismissal." “26. Further to these allegations the stress that this matter has put upon my wife can be attributed to the loss of our baby." “27. I feel that as a minority, South American, that I was not given a fair and full hearing that would have been afforded a white person as is outlined in the Ontario Administrative procedures manual." “28. I am a married man of South American extract and I feel that I have been denied my right to equal treatment - 13 - with respect to employment without discrimination because of my ancestry in contravention of Sections 4(l) and 8 of the Human Rights Code, 1981, Statutes of Ontario, 1981, Chapter 53, as amended." "29. I an a married man who has been denied my right to freedom from harassment in the workplace because of my sex by his employer or agent of the employer or by another employee contrary to Sections 6(2) and 8 of the Human Rights Code, 1981, Statutes of Ontario, 1981, Chapter 53, as amended." EVIDENCE OF LALITA KUMAL Lalita Kumal is the wife of the Grievor, who works for the same Ministry but not in the same department. She and :- the Grievor have been married for some six years. She testified that in the spring of 1987 she and her husband began to receive numerous out of the ordinary phone calls. She testified that whenever she picked up the phone, no one on the other end would speak. However, when George picked up the phone he would occasionally have short conversations with the caller. She testified that the Grievor told her that he believed the calls were being made by Todd Muller, although the caller never actually identified himself. She further testified that on several occasions she.noticed Todd Muller in the cafeteria opening the door for the Grievor, and several tines in the parking lot she saw Todd Muller sitting in his vehicle apparently waiting for George. She testified that on some occasions she would eat lunch in the same area as her husband and Muller, and noticed Muller peering over his newspaper at them. - 14 - She testified that the Grievor told her that he had complained to Fay Brown and Mike Nagel in the spring of 1987 ::; about Todd Muller's unwelcome attentions. EVIDENCE OF PETER BUDWALL, FELY BUDWALL, PARVEEZ MAQBOOL. and JUNE MISIR I These individuals were all called by the Grievor to offer some corroboration of his story. None of these witnesses was very sure of dates, nor did they have any direct evidence that was particularly helpful to this Board. '$ At its highest, the sum total of this evidence suggests that the Grievor was telling his friends that he was receiving harassing phone calls and being subjected to unwelcome attentions. FINDINGS OF FACT and ASSESSMENT OF CREDIBILITY Both Todd Muller and the Grievor were good witnesses, in the sense that they told their stories in a reasonably straightforward manner and were not destroyed on cross- examination. However, there were many internal inconsistencies in the Grievor's story. For example, at paragraph 13 of his complaint he states that he was "receiving anonymous phone calls at work after 4:00 p.m., and at home the caller wouldn't say anything." This is inconsistent with the Grievor's assertion that Todd Muller was the caller, and with Lalita Kumal's evidence that her I husband would typically have short conversations with the so- - 15 - called anonymous caller. It also rings false that, according to the Grievor, Muller was simultaneously asking him out on dates on the -phone while publicly threatening him with physical violence for spreading rumours. We are further assisted in our task by the presence of extensive corroborating evidence. It must be said that all of the corroborating evidence favours the Todd Muller version of events. .'- The piece of evidence that is most damaging to the Grievor's case is Exhibit 2. From the beginning, the Grievor has steadfastly denied its authorship, despite the fact that the content of the note is itself somewhat innocuous. His denial suggests an awareness on his part that there is no innocent explanation for this note. It would be entirely inconsistent with his version of the facts for him to have written this note. He evidently made the decision at a very early stage to deny authorship, despite knowing full well that he had written the note, and he accordingly locked himself into a position from which there was no honourable escape. The evidence of Laurie Ann MacDonald is accepted in full. We note that there was no contrary expert evidence called by the Grievor. We find as a fact that the Grievor wrote the note, and as such we have a very important piece of evidence that fully corroborates Todd Muller's version of the - 16 - facts and is probably sufficient in and of itself to give the lie to the Grievor's version. However, there is even more corroborating evidence for Todd Muller's version. We accept Mike Nagel's evidence that he was not approached in July 1987 by the Grievor, as is alleged by the Grievor. Mike Nagel was an independent witness with no apparent reason to mislead this Board. This claim by the Grievor is a fabrication. We further accept the evidence of Fay Brown that the Grievor did not complain to her at any time prior to early October 1987. Fay Brown was also an independent witness with no reason to mislead this Board. The witnesses called by the Grievor, with the exception of his wife, did not help his case. They were well-meaning and loyal to the Grievor, but had no firsthand knowledge of any of the relevant events. As for Lalita Kumal, we must reject her evidence as unreliable. She seemed to be exaggerating, particularly in her evidence of the alleged phone calls. She was trying to help her husband. However much we night admire her loyalty, we did not find her evidence to be convincing. This Board is convinced beyond any doubt that the Todd - 17 - Muller version of events is essentially correct. He was indeed subjected to unwelcome attentions and advances of a sexual nature from the Grievor. He cannot be faulted for the way he reacted to the Grievo,r nor for his ultimate complaints. Mr. Muller demonstrated a great degree of tolerance and compassion, but ultimately when he found his reputation being slandered in the workplace he reacted with some understandable anger. We find beyond all doubt that the Grievor, when faced i- with the embarrassing -disclosure that he had made these advances to Mr. Muller, chose to defend himself in a manner that is reminiscent of the old football adage "the best defence is a good offence". He chose to deny authorship of the note, and fabricated an accusation against Muller that was patently false. He acted without any regard for the effect that it would have on his fellow worker. It is both tragic and ironic that in choosing this tactic as a means to save face, he inevitably made matters far worse and jeopardized his entire employment. Moreover, by fabricating a serious complaint against a fellow employee, the rights and interests of that employee (Mr. Muller) have been injured unjustly. Not only has he been subjected to the rumours and innuendo, but he has been investigated and interviewed, examined and cross-examined, ad i . - 18 - nauseam. He remains the subject of a complaint to the Human Rights Commission, which in our view has no merit, and has been put to considerable pain and trouble. The Ministry itself has seen an episode that it initially handled with delicacy and tact, turn into a counter-attack with allegations of racial prejudice, one of the uglier allegations that can be levelled at a responsible employer. THE APPROPRIATE DISCIPLINARY RESPONSE Having found~the facts as we have, we must still decide whether these f_acts justify the dismissal. In the Collective Agreement, the parties have seen fit to enshrine protections from sexual harassment. Article 27.10.1 provides as follows: "27.10.1 - All employees covered by this agreement have a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee. Harassment means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome." In our view, Todd Muller's rights under Article 27.10.1 were violated by George Kumal, and the employer had every right to treat the matter as very serious. We commend the employer for its efforts to deal tactfully with a very delicate situation. The complaint by Todd Muller was made discreetly, and with genuine concern for the Grievor's well- being as well as a desire by Mr. Muller to be free from - 19 - harassment. It was perfectly proper for Mr. Kenney to have a private chat with the Grievor and warn him to cease in the offending conduct. Had nothing further taken place after the warning by Mr. Kenney, and indeed the sexual harassment did stop at that point, no discipline would likely have been justified; indeed, it does not appear that any was contemplated. However, the Grievor knowingly chose to launch a counter-attack. He-devised a story that he began to repeat faithfully to his wifeL his friends, his supervisors and possibly others. Presumably the Grievor's wife and friends have come to believe that the Grievor is telling the truth. By this time, it is possible that the Grievor himself believes he is telling the truth. Based on the known facts we are prepared to believe that the Grievor was in a state Of extreme confusion, troubled as he was by a growing obsession which he could not reconcile with his image of himself. The human mind can with time distort one's memory to the point where history is effectively rewritten to conform to wishful thinking. On some level the Grievor may actually believe that the author of the note was not "him". However, judging the events within their own time frame we must conclude that the Grievor deliberately lied to the employer about the allegations against him, and - 20 - deliberately fabricated a complaint against his fellow employee that has escalated to absurd proportions. Thus, while the sexual harassment in and of itself might not have been sufficient to support a dismissal, the Grievor's behaviour and responses to the situation have made his reinstatement out of the question. In support of the proposition that a lesser penalty would have been appropriate, counsel for the Grievor cited a number of cases to us, principally the case of Leering, GSB _'- 1105/84, 1106/84, 1401184 (Verity). In that case, the Grievor had been discharged for having committed some minor sexual assaults on two youths who were under his charge in a summer training program. At the hearing, the Grievor denied committing the assaults. The Board found that the assaults had in fact occurred. At Page 20 of the decision, Vice- Chairman Verity set out the task of the Board when faced with a finding that such unacceptable behaviour had occurred: “Our job is to determine, first, whether the Grievor has misconducted himself within the framework of the employment relationship: and if we find, as we have found here, that he has done 50, we must go on to determine whether this misconduct strikes so fundamentally at the basis of that relationship as to render his employment no longer viable. If we find that the misconduct, in all the circumstances, is not such as to irreparably fracture the employment relationship, we have the discretion to substitute such other discipline as we find appropriate. In exercising this discretion we are bound to take into account all the circumstances~disclosed by the evidence." - 21 - In ultimately imposing a lesser penalty, at Page 21 the following statement appears: "On the other hand, we are satisfied that the Grievor's misconduct constituted an isolated incident in an otherwise unblemished career. We are satisfied that there was no premeditation on the Grievor's part, and that he did not seek out the opportunity for his misconduct. We are not persuaded that at any time the Grievor contemplated anything more than actually happened. We accept that the incident was 'out of character' and that, especially in light of its results to date, it is unlikely ever to be repeated." In dealing with the argument that the Grievor in that case should not be.rewarded when he was found to have lied to the Board, Vice-Chairman Verity at Page 22 wrote as follows: "We must also consider the fact that the Grievor consistently denied have misconducted himself. Generally, Boards of Arbitration are reluctant to grant a remedy to a Grievor whose evidence they have not believed. In the unusual circumstances of this case, we are satisfied that the Grievor sincerely believed his denial: that under significant emotional strain he convinced himself that the incidents did not occur. In our opinion the Grievor made no deliberate attempt to mislead his employer, the Couris, or this Board." We find the Leering case to be helpful but distinguishable. The events giving rise to the discipline in the Leering case were isolated, without premeditation, and moreover occurred during an exercise that was peripheral to that Grievor's central responsibilities. The assaults complained of were spontaneous occurrences. In the instant case, the course of sexual harassment was protracted, and the fabrication of the counter allegation and the spreading of malicious gossip was deliberate. If the Leering case stands - 22 - for any proposition, it is that a responsible employee should not suffer the ultimate penalty of discharge for a momentary lapse of good judgment. That same principle was applied in the case of McGowan, GSB 0888/85 (Draper). In that case, the Grievor was a residential counsellor in a facility for the developmentally handicapped. He was found to have punched a particularly difficult patient. Even though he denied punching the patient, he was reinstated because the Board came to the view that he had suffered a momentary loss of self-control, and that while any punching is unacceptable, 1~. there was no malicious or vindictive intent behind the punch. This panel of the Board fully supports the view that such momentary lapses, depending on all the circumstances, may not be fatal to the continuing of the employer/employee relationship. However, we must find in the present case that the actions of the Grievor, from the day he first began to harass his co-worker right to the point of his dismissal and beyond, have so severely and utterly fractured the employer/employee relationship that reinstatement to any position with this employer would be unjust. Despite a ‘previously unblemished employment record, we can find no mitigating factors that would be sufficient to persuade us to order reinstatement. The Grievor was given a perfect opportunity to let the matter drop. For reasons best known to himself he did not avail himself of this opportunity. His - 23 - choice of tactic, with such disregard for the probable effects on his co-worker and his employer, was so unacceptable as to preclude any.exercise of leniency. In the result, the discharge stands and the grievance is dismissed. Dated at Toronto, Ontario, this 18th day of January, 1989. E.K. SLONE - VICE-CHAIRPERSON J. SOLBERG-' - MEMBER ,&<<, .‘.:.-........ E. ORSPNI - MEMBER J