HomeMy WebLinkAbout1990-2250.Basso.93-08-06 Decision Part 1ONTA RIO EMPLOYES DE LA COURONNE GRIEVANCE COMMlSSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS crown DE L'ONTARIO 180 DUNDAS street WEST, suite 2100, TORONTO, ONTARIO. M5G 180, RUE DUNDAS
OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G BETWEEN BEFORE (4 16) 326-1388 (4 16) 326-1396 2250/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Basso) and The Crown in Right of Ontario (Ministry of Correctional Services) W. Kaplan D. Wintermute D. Walkinshaw Vice-Chairperson Member
Member FOR THE M. Bevan UNION Grievance Officer Ontario Public Service Employees Union FOR THE W. Hayter EMPLOYER Counsel Genest, Murray, DesBraisay Lamek Barristers & Solicitors Grievor
Employer HEARING April 12, 1991 August 27, 28, 1991 October 13, 14, 1992 June 7, 1993
2 Introduction In our preliminary decision dated May 16, 1991, the Board ordered the employer to disclose certain documents requested by the union for the preparation of its case. That
award did not deal with the merits of the matter in dispute: a grievance alleging unjust discipline in the imposition of a three-day suspension in October 1990. That penalty was imposed
following the investigation of allegations by Ms. W.R., a community college student serving a placement at the Cecil Facer Youth Centre, that she had been sexually harassed by the grievor.
Following the investigation of these allegations, Mr. Robert McDonald, the Deputy Minister of Correctional Services, wrote the grievor as follows: I have now received the investigation
report concerning the complaints filed against you by Ms R., in which she alleged that she had been sexually harassed by you while on assignment at the Cecil Facer Youth Centre. I have
decided that, on the basis of the evidence put before me, the allegations of sexual harassment are substantiated. The facts gathered during the investigation established, on a balance
of probabilities, evidence of sexual harassment in that you engaged in a course of vexatious conduct and comments that you knew to be, or should have reasonably known to be, unwelcome.
There is evidence that you made personal inquiries as to Ms R's marital status and made remarks that were sexually oriented when you discovered that her plans for marriage were in the
future. The investigation also established that there was evidence of unwanted touching, in that you put your hands on her person while conversing with her. In addition, there is evidence
to substantiate that you made social invitations to Ms R., in spite of the fact that
3 she continually declined. Although others may have been asked to join in these social events, the fact remains that you repeatedly asked Ms. R. to attend in spite of her refusals.
The investigation also brought to light your previous pattern of behaviour toward female employees a t the Centre, which closely parallels the complaints lodged by Ms R. This information
adds support to the allegations made against you by Ms R. This subject and other matters revealed during the investigation will be more thoroughly discussed with you by my designate.
As you can appreciate, I cannot accept such behaviour and, for this reason, I will instruct management to take appropriate remedial action with a minimum of delay. The remedial action
was the imposition of a three-day suspension. The grievor was also directed to apologize, in writing, to Ms. R, and to attend a prescribed course on the topic of sexual harassment. The
grievor was also advised that any other sexual harassment of any Ontario Public Service employee would lead to further disciplinary action, including dismissal. The instant grievance
was subsequently filed, and proceeded to several days of hearing in Toronto and Sudbury. The Evidence Ms. R. testified. At the time in question, Ms. R. was enrolled in the Child and
Youth Worker Program at Sioux College. In May 1990 she was given a placement at the Cecil Facer Youth Centre (hereafter the "Centre"), the purpose of which was for her to gain practical
experience. The Centre houses young offenders in a number of units called cottages. Typically each cottage has fifteen bedrooms and a five-bedroom dormitory. There is an office area
for correctional officers in each cottage, which has a staff washroom adjacent to it. Correctional Officers work one of three different
4 shifts: 7:00 a.m. to 7:00 p.m., 7:00 p.m. to 7:00 a.m., and 3:00 p.m. to 1 1 :00 p. m. Ms. R. was assigned to the 3:00 p.m. to 11:00 p.m. shift, as that shift offers the most exposure
to young offenders. She was also assigned to cottage #2, a co-educational unit. Ms. R. and the grievor only worked together twice: on May 22, 1990, and on May 25, 1990. Ms. R. began
working at the Centre on May 14, 1990. Ms. R. first met the grievor on May 22, 1990. About twenty minutes into the shift, Ms. R. was sitting with some residents playing cards when the
grievor approached her and asked her if she was married. At this point, Ms. R. and the grievor had not yet been introduced. Ms. R. advised the grievor that she was engaged, and the grievor
asked where her fiance was. Ms. R. replied that he was in Thunder Bay, and the grievor asked her, in front of the young offenders, how she could stand being away from him. The grievor
also suggested, according to Ms. R., that since her boyfriend was away, and since the marriage was some time off, there would be sufficient opportunity for the grievor and Ms. R. to
"fool around." Ms. R. testified that she was embarrassed by this conversation. Ms. R's next interaction with the grievor was during quiet time, which follows dinner, and Ms. R. testified
that the grievor began to wink and blow kisses at her. Their next interaction involved the grievor rescinding Ms. R's decision to dock points from one of the young offenders for inappropriate
behaviour. Later on in the evening, Ms. R. was sitting in the office preparing the log book, when the grievor entered to use the staff washroom. According to Ms. R., he advised her that
one of her duties was to assist him
5 in the washroom. Ms. R., who was twenty years old a t the time of this incident, testified to being extremely embarrassed by it. A few minutes later, Ms. R. had another embarrassing
interaction with the grievor when he brushed her hair and placed his left hand on her right hand. Ms. R. pulled away and left the office. Ms. R. testified that she did not yell at the
grievor or say anything to him because she had been told to make a good impression at the Centre. Following this incident, the grievor asked Ms. R. if she would like to go out on Friday
night. Ms. R. advised the grievor that she "was taken." After this first shift, Ms. R. approached one of the supervisors, Mr. Joseph Natale, and told him that one of the correctional
officers was giving her a "hard time." Ms. R. did not know the grievor's name at this point, but she described the grievor to Mr. Natale, who told her that he would look after it. Ms.
R. did not give Mr. Natale any of the details of what transpired on May 22nd. Ms. R. and the grievor again worked together on Friday, May 25, 1990. While escorting young offenders to
the cottage from the dining hall, Ms. R. testified that the grievor approached her and asked her if she was a virgin. Ms. R. testified that she told the grievor that it was none of his
business, and then walked away. Later on, while assisting the residents in brushing their teeth, Ms. R. testified that the grievor began to refer to her as "sweetpea," and after he did
so the young offenders began to call her "sweetpea." Ms. R. testified that the grievor repeated his invitation out several times on that shift, and when Ms. R. told him that she had
a long drive home, he invited her to stay the night at his house. This invitation
i 6 was witnessed by another correctional officer, Mr. Renaud, who joined the grievor in laughter about this invitation and who volunteered to sleep on the couch to "make sure nothing
happened." Later that evening, Ms. R. testified that the grievor again inquired whether she was a virgin. When Ms. R. did not reply, the grievor, according to Ms. R., invited her into
the staff washroom so that he could "fix her up." Ms. R. said that she felt trapped, and left the office and went into the lounge area. As she reached up to turn the channels on the
television, she testified that the grievor approached her, pulled her tightly against him, whispered something into her ear, breathed on her neck, and brushed his lips against her neck.
Ms. R. testified that she pulled away and left the lounge, and that she felt quite frightened by this encounter. At the end of the shift, Ms. R. testified that she was quite anxious
to leave the cottage. She did not have a key to the cottage, and so could not leave on her own. As it happened, the grievor was the first person to leave, and so Ms. R. left with him.
She testified, however, that she did not walk with him. She attempted to immediately contact the placement coordinator at Sioux College, and on the following Monday, Ms. R. met with
Mr. Natale and subsequently filed a formal complaint. Ms. R. testified that she never did anything to encourage the grievor, and attempted to act professionally with him. Ms. R. was
asked a number of questions in cross-examination. Ms. R. testified that she felt the grievor was attempting to undermine her authority when he rescinded the demerit points she assigned,
and in her view, this was one of the ways in which he had harassed her. Ms. R. agreed
that she did not mention this incident in her complaint. Ms. R. insisted that the first thing the grievor said to her on May 25, 1990 was "are you a virgin," and that he did so in front
of residents. Ms. R. did not mention this to any of the other correctional officers on duty because she was embarrassed by it. It was suggested to Ms. R. that when the grievor called
out "sweetpea," that he was not referring to her, but to another female correctional officer. Ms. R. testified that she felt that the reference was to her, and that the residents obviously
agreed since they began to call her "sweetpea." Ms. R. was asked if she knew that the invitation out on Friday night was to a birthday party for one of the other correctional officers,
and she testified that she was not told this, and that all she knew was that the grievor and Mr. Renaud would be in attendance. Ms. R. agreed that inquiring whether she was married was
not necessarily harassment, but testified that when that question was followed by the other remarks and conduct such as asking if she was a virgin, winking and blowing kisses and unwanted
touching, she felt that she was being harassed. Ms. R. testified that at the end of the Friday, May 25, 1990 shift she did not say "wait up AI, I'm coming with you," but said "let me
out," and that she left with him only because he was the first person to leave and she was anxious to depart. Ms. R. agreed that any of the other correctional officers on duty, all of
whom had a key, could have let her out. Ms. R. insisted that she told Mr. Natale about her problems with the grievor after the first shift, and she testified that whether Mr. Natale
recalled that conversation or not, it definitely occurred. Ms. R. testified that when she
8 gets upset she sometimes has a nervous laugh, and she might have laughed in response to some of the grievor's comments, although she does not recall doing so. She testified, however,
that she made it absolutely clear to the grievor, from the very beginning, that she had no personal interest in him and that she was otherwise committed. Ms. R. was asked why she did
not report the grievor to the placement coordinator at Sioux College after the first shift working with him, and she testified that she told Mr. Natale, and was also somewhat concerned
about making an issue out of it because she wished to make a good impression. Ms. R. testified that she was surprised when the grievor resumed harassing her on May 25th because she had
assumed that Mr. Natale would have spoken to him and that the conduct would stop. #2, and Mr. Natale was not on duty when the grievor resumed his harassment. Ms. R. testified that she
attempted to contact the placement coordinator after the second shift, but could not reach him until the following Monday. After she did, she filed a formal complaint. Ms. R. did not
know the other correctional officers in Cottage Joseph Natale testified. He has worked for the Ministry since 1973, and a t the time of the incidents described above was the unit manager.
Mr. Natale is responsible for evaluating placement students such as Ms. R., and he performs his evaluations in part with the input of cottage correctiona officers. He testified that
Ms. R. would have been aware of this. Mr. Natale testified that prior to these events he has twice counselled the grievor with respect to inappropriate activities involving women. One
incident involved another correctional officer, Ms. Gaylene Korkiakowski, who also gave evidence in these proceedings. On one occasion, the grievor stripped to his underwear in one of
the cottage offices in full view of Ms.
Korkiakowski, a male correctional office and residents. Ms. Korkiakowski asked the grievor to dress and undress in the washroom, and Mr. Natale testified that the grievor then called
her a "fat little something." Ms. Korkiakowski requested an apology, and the grievor refused. Ms. Korkiakowski then complained to Mr. Natale. Mr. Natale investigated and asked the grievor
to apologize. He refused. Mr. Natale referred the matter to his supervisor, Mr. Roger Lavoie, and on Mr. Lavoie's instructions, Mr. Natale wrote the grievor a counselling letter. Mr.
Natale testified that when investigating this incident and discussing it with the grievor, his attitude was one of nonchalance, and was to the effect that Ms. Korkiakowski "would get
over it." Mr. Natale referred to this incident in the grievor's next performance appraisal. The grievor received a satisfactory performance appraisal for the period June 1, 1987 to June
1, 1988. The appraisal noted, however, that he "was counseled on one occasion about inappropriate comments made to a female staff. This situation was resolved." The grievor did not take
issue with this observation on that part of the appraisal form reserved for employee comments. The following year, the grievor again received a generally satisfactory appraisal. That
appraisal noted, however, that "Al is very outspoken, especially about his feelings concerning female correctional officers. AI should use discretion in letting his personal feelings
known about this topic." Mr. Natale testified that he included this observation on the performance appraisal because he was advised by several female correctional officers that the grievor
was making certain comments with respect to them. Of the 73 correctional officers then on duty at the Centre, thirteen were female. The grievor did not take issue with this observation
10 on that part of the appraisal form reserved for employee comments. Mr. Natale also testified that the Ministry's Sexual Harassment Policy was posted in the cottages. On Thursday May
24, 1990, Mr. Natale first became aware of the incidents leading to this case. Mr. Natale encountered Ms. R. as he was leaving work, and she told him that she wished to speak with him
in private. She then advised him that she was having some problems with one of the staff members, who was "bugging her" and asking her out. Ms. R. described the grievor, and Mr. Natale
told her that he would speak to him. Unfortunately, when Mr. Natale returned to work the following day he forgot all about this conversation. Mr. Natale agreed that in his statement
to the sexual harassment investigator he did not mention Ms. R's initial complaint. Mr. Natale again discussed the grievor's conduct on Monday, May 28, 1990, and he testified that he
asked her how things were going, and when she reported what had occurred the previous Friday, he reported the matter to the Deputy Superintendent. In cross-examination, Mr. Natale was
asked about the incident involving Ms. Korkiakowski, and he testified that the exact words that the grievor used after Ms. Korkiakowski asked him to apologize and not to change clothes
in the office were "fat little jig." Mr. Natale agreed that he did not refer to the grievor undressing in the subsequent performance appraisal because he had written the grievor a counselling
letter. Mr. Natale testified that while Ms. Korkiakowski did not consider the incident to be sexual in nature, she was upset and embarrassed about it, and considered it inappropriate
for the grievor to undress in front of her and cottage residents.
Mr. Natale testified that he has always gotten along with the grievor, and that he was the grievor's partner before he received his promotion. While Mr. Natale prepared the second performance
appraisal cited above, he agreed that he did so based on second hand information. He also agreed that it is not normal to speak to other correctional officers about a colleague, but
that at the time that he had to prepare the appraisal he was not supervising the grievor. Mr. Natale was not surprised to learn about the grievor's views about female correctional officers,
because he himself had heard the grievor express similar views when they were partners. Mr. Natale testified that when Ms. R. first told him that the grievor was "bugging her," he did
not think it was sexual harassment, and that if he had, he would have followed the procedures outlined in the sexual harassment policy. In re-examination, Mr. Natale testified that if
he had been aware of the particulars of Ms. R's experience with the grievor following the first shift, he would have referred the matter to senior management immediately. Mr. David Levesque
testified. He has worked with the Ministry as a correctional office since 1986, and testified under subpoena. On May 25th he worked in cottage #2 along with the grievor, Ms. Korkiakowski
and Ms. R. Mr. tevesque testified that Ms. R. told him that evening that the grievor was "hitting on her" and that he had "rubbed himself against her." Mr. Levesque told Ms. R. that
if she wished to change shifts she should contact Mr. Natale. Mr. Levesque also witnessed the grievor asking Ms. R. out, and testified that it was, more or less, an open invitation to
everyone who was present. In cross-examination, Mr. Levesque testified that he completed his shift at 11 :00 p.m., but could not recall if Ms. R. asked to leave the cottage with him.
12 Mr. Levesque also testified that he did not personally witness the grievor "hitting on" Ms. R., or any of the other conduct described in this award. Ms. Anne Leduc testified. Ms.
Leduc is a social worker and has been employed by the Ministry since 1984. She testified under subpoena. Ms. Leduc testified that the Centre houses a number of female young offenders,
a high proportion of whom have been victims of sexual and physical abuse. Ms. Leduc first met the grievor after joining the Ministry, and thought that he was nice at the time, and still
thinks so. Ms. Leduc recalls the grievor asking her, soon after meeting her, whether she was married. She was living with someone at the time, and advised him of that. He would still
ask her out, and she testified that the fact that she was living with someone did not seem to matter to him. Nor did the fact that she was not interested in his invitations. The grievor
persisted, and he would regularly invite her to his place. Ms. Leduc testified that this continued for approximately three years, and only stopped when she became visibly pregnant. At
one point, Ms. Leduc was asked by a member of management whether she wished to formally complain about the grievor, and Ms. Leduc declined the invitation, preferring to deal with it
in her own way. Ms. Leduc testified that she felt that she could handle it and, in any event, she did not take it too seriously. Ms. Leduc testified that she has received complaints
about the grievor from female students in recent years. Ms. Leduc responds to these complaints by advising the students to tell the grievor that they are not interested, and that if
the grievor then persists, to file a complaint. Ms. Leduc estimates that this has occurred two or three times, and to the best of her knowledge
13 no one has filed a complaint. In cross-examination, Ms. Leduc was asked whether she did not wish to file her own complaint because she thought the grievor was joking around. She testified
that she did not think he was joking, but felt that she could best handle the situation herself. While Ms. Leduc did not file a complaint, she also did not approve of the grievor's behaviour.
Ms. Leduc also testified that when the grievor would make comments to her in front of others she would walk away. Ms. Leduc did not know if anyone in management ever referred her concerns
to the grievor. Nicole Cardinale testified. Ms. Cardinale is a social worker, and has been employed at the Centre since 1988. Ms. Cardinale testified that soon after starting work at
the Centre she was approached by the grievor. According to Ms. Cardinale, the first thing that the grievor said to her was that he wanted to go out with her. At this time, Ms. Cardinale
did not even know the grievor's name, and she declined the invitation, advising the grievor that she was living with someone. She found the grievor intimidating, and she testified that
he persisted in his advances every time they met. He would always suggest to Ms. Cardinale that she think about his invitations. In late 1988, the grievor entered Ms. Cardinale's office
and closed the door behind him. He advised Ms. Cardinale that he wished to exchange Christmas greetings. The two exchanged a kiss and a handshake, and then the grievor attempted to "French
kiss" Ms. Cardinale, who pushed him away and threatened to charge him with sexual harassment. Ms. Cardinale testified that the grievor laughed and treated her concerns as if they were
a joke. Following this incident, the grievor stopped asking Ms. Cardinale out, but
i 14 kept on saying that she should "think about it." He would tug on her hair, and run his fingers down her back when they would meet in passing. He would also approach her, in her
office and in the cafeteria, and whisper directly into her ear. On one occasion, the grievor entered her office and began to stir her coffee with his finger. Ms. Cardinale asked the
grievor whether he wished to "wear the coffee," and according to Ms. Cardinale he replied that he "was not afraid to hit a woman." Ms. Cardinale testified that most of these incidents
occurred while she was a contract employee, and that she did not make anything out of them because she did not wish to risk her position. When she became a permanent employee in November
1988, she felt more secure, and also felt that she could handle the situation. She did so by avoiding the grievor. After a while, he stopped bothering her. In cross-examination, Ms.
Cardinale testified that she never raised any of these incidents with management, although she did discuss them with Ms. Leduc. She was aware that Ms. Leduc had raised these and similar
concerns with management. Ms. Cardinale agreed that she did not complain when she was a contract employee, nor did she complain when she was a permanent employee, and that her employment
status really had nothing to do with her decision not to complain. Ms. Cardinale also stated that she was not now complaining about the grievor. Ms. Cardinale testified that the grievor
did not whisper to her every time they met, but that he was extremely persistent. She also testified that she took the coffee incident as a joke, but was nevertheless insulted by it.
While she did not mind the exchange of a handshake and kiss with the grievor, she did not appreciate or consider correct his attempt to "French kiss" her.
D.M. testified. In May 1990, D.M. was a young offender incarcerated a t the Centre. D.M. testified that he recalled one incident in which the grievor approached Ms. R. while she was
standing by the television. He put his hand on her shoulder and said something to her. D.M. testified that she looked confused and walked away. According to D.M., it was a "weird look,
a get lost sort of look." In cross-examination, D.M. was asked about the statement he provided to the Ministry's sexual harassment investigator, and he agreed that in that statement,
dated June 19, 1990, he stated, after describing this incident, that "she just smiled at him." D.M. agreed that his memory was probably fresher in June 1990 then it was several years
later when he gave evidence in these proceedings, but he insisted that the incident was as he described it in chief. D.M. never heard the grievor refer to Ms. R. as "sweetpea." The grievor
testified on his own behalf. He told the Board that he has worked as a correctional officer at the Centre for thirteen years. He agreed that he worked with Ms. R. on two separate occasions.
He testified that he asked her if she was married, and that he did so because he wished to ask her out. The grievor invited her out to a birthday party, and when Ms. R. said that she
lived too far away, he told her that she could "crash" at his place. The grievor testified that he has lots of room at his place, and it was not infrequent for people to stay there.
The grievor denied saying to Ms. R. that they still had time "to fool around," nor did he ever ask her if she was a virgin, nor did he ever invite her into the staff washroom with him
to "fix her up." The grievor also testified that he never called her "sweetpea," and that this reference was to Ms. Korkiakowski, who was also working the
16 same shift. The grievor could not recall ever touching Ms. R., and he denied grabbing her around the waist. The grievor testified that he never made any comments of a sexual nature
to her. On May 25th, he testified, he was leaving work a t approximately 10:45 p.m., and Ms. R. called out, "Al wait for me, 1'11 walk over with you." The grievor waited for her, and
they walked together to the main building. The grievor then said "have a nice weekend," and he testified that he had no idea at this time that she was upset or uncomfortable. When the
grievor found out that Ms. R. had made a complaint about him, he was shocked. The grievor agreed that he had, in the past, invited both Ms. Leduc and Ms. Cardinale out. He did not know
that either women was uncomfortable with' him or these invitations. He testified that no one from management ever raised any concerns about his relationships with either woman to him.
He considered the banter to be joking around. With respect to the incident involving Ms. Korkiakowski, the grievor testified that he was changing out of his track suit when Ms. Korkiakowski
saw him, and that he did not know that she would be coming in. At that time, he regularly changed in the office instead of the washroom. The grievor could not recall his conversation
with Ms. Korkiakowski. In cross-examination the grievor was presented with a copy of his signed statement provided to the sexual harassment investigator. The statement is generally consistent
with the grievor's evidence in chief. The statement also contains the following question and answer: 17 i
i 17 of them. Do you have any reason to believe that Ms R. has some reason for making such allegations other than the fact that they did occur according to her testimony. A. I don't
know. I'm flirty, I'm crude, that's my style. It's my personality. The grievor agreed that he gave the above answer, and moreover, that it was true. He did not agree, however, that he
attempted to engage women in conversations with sexual overtones. Moreover, he testified that when describing himself as being crude, he did not intend that term to be understood in
a sexual way, but was instead referring to the fact that he frequently swore. The grievor testified that he used to say the word "fuck" in front of women, but no longer does so. With
respect to the incident involving Ms. Korkiakowski, the grievor testified that while he frequently dressed and undressed in the office, he did not do so when others were around, and
that on the particular day in question he expected Ms. Korkiakowski to be outside watching the residents. The grievor did not agree that dressing in the office was inappropriate, but
he did agree that it would have been a relatively simple matter for him to change in the adjacent washroom. The grievor agreed that his relationship with Ms. Korkiakowski suffered after
she reported him to management, and one reason was because the grievor believes that Ms. Korkiakowski should have discussed her concerns with him first. After the incident with Ms. Korkiakowski,
the grievor stopped changing in the office, but did not agree that the reference to it on his performance evaluation indicated that he had been told to be more careful in his interactions
with women. The grievor also agreed that many of the residents have been sexually
! abused, and that many of them were extremely impressionable. Accordingly, the grievor agreed that if he did not respect women, it was possible that the young offenders in his care
would learn not to respect women, and that sensitivity to this issue was very important. The grievor also agreed that placement students look up to the correctional officers, and that
setting a good example was also important in that respect. The grievor has never been asked by management to provide his input to the evaluation of a placement student. The grievor agreed
that it would be somewhat aggressive to ask a woman out when he had never met her before. He also agreed that it would be somewhat aggressive to continue asking her out after being advised
that she was in a relationship. The grievor agreed that he had asked both Ms. Leduc and Ms. Cardinale out, but that he did not know there was a problem until he heard their evidence
in these proceedings. Simply put, he did not know that they objected in any way to his conduct. The grievor agreed that it was possible, although he did not recall this, that the first
thing he asked Ms. R. was whether she was married. The grievor did not agree that this was an aggressive approach to dating, but in general viewed his approach as flirtatious. It did
not occur to the grievor that asking a placement student out the first time he met her might put her in a difficult situation. The grievor testified that he would not have made any personal
comments of this kind in front of a resident, and that when he did ask her out, he asked her to join a group of people who were going out to celebrate a birthday.
19 The grievor again denied saying to Ms. R. that there was still time before her marriage to "fool around," and he testified that although this sounded similar to Ms. Leduc's evidence
about his response to her marital status, he also denied saying that with respect to her. The grievor readily admitted to flirting, and testified that when flirting he often winked,
but would not blow kisses. He testified that he flirts with many women, and he agreed that a wink could be considered as an expression of sexual interest, but was not always so. For
example, he testified that he regularly winks at Ms. Korkiakowski, but he does not do so in order to seduce her. The grievor was asked about a number of Ms. R's allegations. The grievor
could not recall working with the grievor on May 22nd. He categorically denied asking her if she was a virgin, or ever touching her, although he might have put his hand on her shoulder.
He denied inviting her into the washroom, and agreed that making a suggestion of this kind would have been totally inappropriate. On May 25th the grievor estimates that he invited Ms.
R. out three separate times. The grievor testified that a number of correctional officers in the other cottages were also invited, and in the end a gang of people went out. The grievor
did not perceive his invitations to the grievor as causing her discomfort, nor did he consider this conduct, along with asking if she was married, having never met her or talked to her
before, as harassing. He testified that he was not trying to seduce her, rather he was simply inviting her and others out for a drink. The grievor testified that he did nothing blameworthy,
and that he does not believe that he did anything wrong. The grievor is sorry if Ms. R. misconstrued him in any way, but testified that it was never his intention to harass her.
In that respect, the grievor was asked about his suggestion to Ms. R., made in front of Mr. Renaud, that she stay overnight at his house. The grievor could not recall making that suggestion,
but stated that even if he did, he was not extending an invitation to sex. According to the grievor, lots of people have slept on his couch, including single women. The grievor testified
that one reason he was so surprised about the formal complaint was that the grievor left work with him on the Friday night, and everything appeared in order. The grievor agreed that
he has expressed some concerns about female correctional officers, and that he had to be more careful about this. In re-examination, the grievor explained why he was concerned about
female correctional officers. He noted that they cannot break up fights or do washroom checks, and this imposes additional duties on the male correctional officers. The grievor also
testified that these concerns did not affect his professional relationship with any of the female correctional officers, and no one in management ever told him that he was not treating
female correctional officers properly. The grievor also testified that when he invited Ms. R. out on the Friday night, he was not inviting her out on date, but was inviting her to join
a group of correctional officers. The grievor also testified that if he had known that Ms. Leduc and Ms. Cardinale were uncomfortable with his behaviour he would have stopped behaving
in that way. Ms. Korkiakowski testified. She has worked at the Centre as a correctional officer for more than eighteen years. On May 25th, Ms. Korkiakowski was working the 3:00 p.m.
to 11 :00 p.m. shift along with the grievor and Ms. R.
Mr. Levesque was also on duty. At no time did she see the grievor blow kisses at Ms. R., nor did she hear him call her "sweetpea." What she did hear, however, was the grievor call her,
Ms. Korkiakowski, "sweetpea," and she testified that this did not bother her, and that he has called her different names over the twelve years they have known each other. Toward the
end of the shift, the grievor went and shaved, and when he came out Ms. Korkiakowski noticed that he was wearing cologne. She made a comment about the cologne, and he told her that it
was called "musk." Ms. Korkiakowski went over to sniff it on the grievor, and after Ms. R. commented that it smelled nice the grievor approached her and she sniffed it too. Ms. Korkiakowski
also testified that at the end of the shift she was in the office with Ms. R. explaining the demerit point system to her. The grievor was getting ready to leave, and asked Ms. Korkiakowski
if he could leave a little early. At that point, Ms. R. indicated that she wanted to go too, and said, "Al wait for me, I will go with you." Ms. Korkiakowski was a little annoyed about
this, as she had spent the last forty minutes explaining the demerit point system to Ms. R., and she felt that Ms. R. should have waited with her as she completed the job. Ms. Korkiakowski
testified that she also has a key to the door and could have let Ms. R. out. Ms. Korkiakowski testified about her relationship with the grievor, and about the incident where she encountered
him changing clothes. She testified that after raising her concerns with the grievor he told her that if she did not like it she did not have to look. Later on, when she again raised
her concern about the incident and the example he was giving to the
residents, he laughed and said "too bad." At that point, Ms. Korkiakowski decided to complain to management. Ms. Korkiakowski had a number of discussions with Mr. Natale about the incident,
and she told him that she did not want a letter to be issued to the grievor, nor did she wish the employer to make a big deal out of it. According to Ms. Korkiakowski, Mr. Natale told
her that the grievor's behaviour had to be dealt with, and she replied that she did not wish to be the person to deal with it because it was not that big a deal. Ms. Korkiakowski agreed,
in cross-examination, that the grievor is a social friend, and along with other correctional officers, she has gone hunting and fishing with him. Ms. Korkiakowski heard about the complaint
against the grievor several days after it was filed, and made some notes about her recollection of events, and those notes were introduced into evidence. Ms. Korkiakowski could also
recall speaking with Ms. R. at some point on May 25, 1990, and that Ms. R. indicated to her that she did not like the grievor. Ms. Korkiakowski advised Ms. R. to tell the grievor to
"go to hell." Ms. Korkiakowski was asked whether the changing in the office incident demonstrated insensitivity to her as a woman, and she answered that that was not her problem with
it. What she objected to was the bad example that the grievor was giving to the residents. Ms. Korkiakowski did not like the grievor's attitude when she confronted him about it, but
she did not want the incident to go as far as it did. Indeed, Ms. Korkiakowski testified that it affected her relationship with the grievor for some time. It did not affect her relationship
with other correctional officers, who agreed that she was right to bring her concern to the grievor's attention.
23 Ms. Korkiakowski would not described the grievor as crude, and she testified to exchanging winks with him. Ms. Korkiakowski testified that Ms. R. was not really involved in the dental
parade when the grievor began calling out "sweetpea," and that she believed that the reference was to her, and told the Board that the sweetpea is her favourite flower. She did not recall
any resident referring to Ms. R. with that word. She did recall the grievor calling her other names in the past, such as "muffin." Ms. Korkiakowski agreed that when the grievor emerged
from the bathroom toward the end of the shift on May 25th, Ms. R. did not call him over for a sniff of his cologne. The grievor presented himself to Ms. R., who then smelled the cologne.
Ms. Korkiakowski also testified that she did not ask Ms. R. to remain behind to finish the paperwork, and she did not understand-Ms. R's rush to leave the cottage. Ms. Korkiakowski did
not go out for drinks that evening, nor was she ever invited by the grievor to join the group. Mr. Claudio Pen testified. He is a correctional officer with twenty years of experience
at the Centre, and on May 25th, he worked the 7:00 p.m. to 7:00 a.m. shift. He never saw the grievor blow kisses, wink or do or say anything inappropriate. He also testified that he
was never questioned about his experience on that shift by the Ministry sexual harassment investigator. He did not notice that Ms. R. looked upset during the shift, or at its end. He
did hear Ms. R. say, "wait a minute Al," at the end of the shift, and then saw her leave with him. Mr. Pen agreed that there were times on that shift when the grievor and Ms. R. were
out of his sight, but testified that he is paid to observe, and that he
24 did not observe anything extraordinary. Mr. Pen believes that blowing kisses and winking is inappropriate workplace activity, and testified that he would have noticed it if it was
being done. Emdoyer Araument Employer counsel began his submissions by noting the penalty at issue in this case: a three-day suspension. Counsel argued that the evidence more than established
just cause for the imposition of this penalty, and went on to suggest that management could very well have imposed a much more serious sanction given the facts in this case. Counsel
reviewed some of those facts. He pointed out that Ms. R. was a young college student serving a placement at the time of the incidents giving rise to her complaint, and that she depended
on the grievor and other correctional officers for training and for feedback, which was used in the preparation of her evaluation. Counsel argued that the facts established that the
grievor began to "hit on" Ms. R. as soon as he saw her. Counsel noted that the grievor admitted to asking Ms. R. if she was married, before they were even introduced, and the evidence
established that he persisted in making advances to her even after she indicated her complete lack of interest. Counsel noted that the evidence established that even when a woman indicated
a lack of interest or another commitment, the grievor continues to make suggestions of a sexual nature, and he referred in this regard to Ms. R's evidence, as well as that of Ms. Leduc
and Ms. Cardinale. Counsel pointed out that the grievor was a self-admitted "crude and flirty" guy, and argued that his crude and flirty conduct, while possibly appropriate for a