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HomeMy WebLinkAboutJohn 98-01-01 IN THE MATTER OF AN ARBITRATION BETWEEN SENECA COLLEGE OF APPLIED ARTS AND TECHNOLOGY (the College) ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the Union) GRIEVANCE OF KEN JOHN (the Grievor) BOARD OF ARBITRATION Arthur Kruger - chair Peter Hetz - member Pauline Seville- member APPEARANCES For the College - George Vuicic, counsel - Mel Fogel - Jane Wilson - Kim Raymer - John Hodson - Pamela Hendsbee - Jennifer Farrell - Susie Vallance For the Union - George A. Richards, counsel - - Ken John - Janice Hagan - Elaine Nethery HEAR1NGS AT TORONTO, ONTARIO FEBRUARY 4, MARCH 23, MAY 19, MAY 27 and JUNE 4, 1998 -2- The matter comes before this Board as a result of the decision to discipline the grievor on December 7, 1996. Mr. John was found to be in violation of the College's Policy on Discrimination/Harassment. Discipline was not actually imposed until a follow-up letter was sent to the grievor on January 3, 1997. Mr. John was then suspended without pay for ten days. He was transferred from his position as a security clerk at the woman's residence to the position of caretaker at another campus, with no loss in his rate of pay, and a warning letter was put in his file. On January 6, 1997, Mr. John filed a grievance requesting full restitution including an apology from the College for the wrongful imposition of discipline. The grievor' s contention is that he did not violate the College's harassment policy and that, if anything, those who filed charges against him had in fact harassed him. In November 1997, Ms. Pamela Hendsbee, a student in York Hall, a woman's residence at the College, was called into the office of Shirley Wagan, the Manager of York Hall, who reprimanded her for using foul language in dealing with a member of the staff, Mr. Ken John. She in turn complained about the behaviour of Mr. John, who worked at the residence. She was advised to submit her complaint in writing. Ms. Hendsbee told this Board that she knew that another student, Ms. Jennifer Farrell, also had complaints about Mr. John's behaviour. Before writing out her complaint, Ms. Hendsbee advised Ms. Farrell to file a written complaint at the same time. Both students, in their evidence, insisted that they wrote their complaints independently and that the only element of coordination was in the timing of their submissions. The written complaints were received by Mr. Sisco, Manager of College Services and Residence Operations, and forwarded to the Centre for Equity and Human Rights at the College. This Centre is responsible for investigating such complaints and for making recommendations for their resolution. Mr. John was informed of the complaints and given full opportunity to respond to them. The two complainants, the grievor, and others were interviewed by staff at the Centre. The Centre concluded that there was validity to most of the complaints against Mr. John and -3- recommended the discipline which was ultimately imposed on him and which is the subject of the grievance before this Board. Evidence and argument were lengthy covering four and one-half days of heatings. We believe the most effective way to summarize the evidence is to organize it around the various charges made against Mr. John by the two complainants. Ms. Pamela Hendsbee's Allegations The written complaint of Ms. Hendsbee was filed as Exhibit 5 with this Board. Her complaints were as follows: 1. The Swimming Episode Ms. Hendsbee ' s Version On November 19, 1996, Mr. John told Ms. Hendsbee that on the previous evening he had watched her swimming on the monitor situated at the security desk. He advised her that she could improve her frontal stroke. He also said that he had nothing better to do than sit and watch her swimming in the pool. Ms. Hendsbee interpreted the comment on her "frontal stroke" as one with sexual overtones, given the way it was said. She was also concerned that the grievor, on a regular basis, came to the pool to check the chlorine level of the water while she was in the pool. She concluded that this was deliberate on his part, providing him with an excuse to watch her swim. She also described an incident where she splashed Mr. John at the pool because she felt so angry about his intrusive visits to the pool while she was swimming. Mr. John's Version Mr. John told the Board that while on the evening shift he was required to check the chlorine level of the water at 7:30 p.m. and 9:30 p.m. His timing of this duty was in no way affected by the presence or absence of Ms. Hendsbee in the pool. He did comment to her on her swimming but his comments were limited to suggestions to improve her front crawl. He denies saying anything -4- about a from stroke and denies any sexual innuendo in his words. As for the splashing incident, his recollection was that Ms. Hendsbee splashed him in a playful manner and gave no indication she was upset at the time. 2. The Window Bfind lncident Ms. Hendsbee ' s Version Very early in the fall term, Ms. Hendsbee was in her room on the first floor of the residence with the window blinds open. It was in the evening and it was already dark outside. She heard Mr. John shouting outside that someone should close the window blinds in her bedroom. Later that evening she went to the reception desk where Mr. John was on duty to ask him why it was necessary to close the blinds. Mr. John responded that intruders could jump the fence and look into first floor windows. He then proceeded to tell her of two incidents. The first involved a man who had jumped the fence and was seen masturbating outside a residence window. Ms. Hendsbee stated that while telling this story, Mr. John "sat back in his chair and quite graphically simulated the man masturbating". His second story concerned an incident involving a parked van that he had observed on Old Leslie Street near the campus. When he went to investigate, he found a "woman performing oral sex on the man she was with" in the van. "Ken once again graphically simulated the woman performing oral sex". Mr. John's Version Mr. John recalled yelling up to close the blinds on the window in Ms. Hendsbee's room. It was College policy that at night blinds in first floor rooms had to be drawn because of the risk that a peeping Tom might jump the fence. All students were informed of this policy when they entered the residence. What he was doing that night was enforcing the policy, something that was part of his duty as a security clerk. -5- When interviewed by Centre staff, Mr. John initially denied simulating masturbation or oral sex. At a later interview, he conceded that he did simulate masturbation. However, he denied simulating masturbation in the manner Ms. Hendsbee had described, but he did concede that rather than use the word masturbation, he simulated it with a short motion using his fingers only. Ms. Hendsbee and her friends laughed at this gesture. As for the story of the van, he did tell her the story but denied the allegation that he had in any way simulated oral sex. Again he stated that Ms. Hendsbee and her friends were amused by the story. His purpose was to impress on Ms. Hendsbee the reasons for closing her blinds when it was dark outside. 3. Physical Touching In her written complaint, Ms. Hendsbee stated that on a number of occasions, Mr. John "walked up behind me and rubbed my shoulder or has patted me on the back. This makes me feel uncomfortable .... "She told the Board that once she told Mr. John not to touch her "he never did it again". Mr. John, in his evidence before this Board denied touching Ms. Hendsbee or any other resident. Ms. Farrell's Complaints 1. The Halloween Eve Episode Ms. Farrell's Version On October 31, 1996, Ms. Farrell and friends were leaving the residence to go to a party. She was dressed in a short skirt and net top. She met Mr. John and gave him a hug before leaving the building. A few days later Mr. John asked to speak to her. He told her she had looked good in the clothes she had worn on Halloween and she should dress like that more often. In her complaint she says that he went on to say that her hug had "done something to him, something that happens every time I talk to him or even walk by." Mr. John's Version Mr. John testified that when Ms. Farrell hugged him he had some files in one hand and did not hug her in return. When she complained about his cold response, he put his free hand on her -6- back. Later he did tell her he thought the clothes she had worn that night made her look good. He denied saying anything more than that. 2. The Conversation Concerning College Poficy on Fraternization Some time after the Halloween incident, Ms. Farrell and Mr. John were talking and he told her how difficult he found the College policy against fraternization between staff and the residents. When the girls talked to him, he liked to respond and that could result in a loss of his job. She wrote in her complaint "But knowing this, he continued on with his suggestive remarks toward me." In his evidence, Mr. John told the Board that he did not fully accept the no fraternization policy of the College. He was a friendly person and saw no harm in maintaining friendly relations with the residents. As for the remarks to Ms. Farrell concerning the policy, what he said was that the younger part-time staff found the policy very difficult because they were close in age to the residents. He denied saying that he found the policy created a hardship for himself. 3. The Moving Incident Ms. Farrell wrote in her complaint that she once mentioned to Mr. John that she intended to move out of the residence before the spring semester. He asked her where she intended to live and when she told him, he said he was delighted that she was going to live close to his own apartment. He went on to say that another girl who had moved out of the residence lived near him and came over to his apartment from time to time and "they watched movies and did things together." In her evidence before this Board, Ms. Farrell said she felt this was said with sexual overtones as an invitation to her to visit him in his apartment when she moved out of the residence. Mr. John recalled the incident. He did mention that another former resident also named Jennifer had moved to an apartment near his home. She had spotted him from her balcony and came over to visit him on her own initiative and they watched movies together. He denied saying "they did things together" and he denied that anything sexual in nature occurred between him and the other -7- Jennifer. He did suggest that Ms. Farrell might also visit him after she moved but he denied that his conversation implied, in any way, an invitation to Ms. Farrell to have sex with him after she moved. 4. The Note Early in the term Ms. Farrell received a note from Mr. John in her letter box inviting her to come by and talk to him on Friday when the residence was quiet and Mr. John was bored. Ms. Farrell was away from the residence that weekend and they did not get together that Friday. Mr. John admitted writing the note but saw nothing wrong with it. 5. The Classroom Incident This was the final incident prior to Ms. Farrell's filing of her written complaint and it occurred about one week before she complained. Ms. Farrel!' s Fersion One evening Ms. Farrell and a friend named Sandra were walking to the cafeteria when they met Mr. John. He asked her if they could talk and she responded that if he wanted to talk she would be in the cafeteria. She then saw Mr. John talking to her friend and she proceeded to the cafeteria alone. Mr. John later met her in the cafeteria and asked if it was a good time to talk to her. Ms. Farrell stated that she later learned from Sandra that Mr. John had said something to Sandra that caused her to change her plans so that she did not join Ms. Farrell in the cafeteria. After they chatted for a while, Mr. John said he preferred not to continue their conversation in the cafeteria and suggested they leave and go down the hall. They sat and talked for a while on a bench in the hall. However, Mr. John became uncomfortable talking there and suggested they continue their conversation in an empty classroom nearby. They proceeded to a classroom to continue their discussion which now turned to matters of sex. To quote Ms. Farrell, Mr. John indicated how much he liked sex and how good she would find sex with him. He then got up and shut the classroom door. This made Ms. Farrell very uncomfortable and she left the room. Mr. -8- John did not attempt to stop her. Near the end of her letter of complaint Ms. Farrell states that she found her early encounters with Mr. John flattering and "of no real bother to me". Over time his behaviour became "annoying and extremely bothersome." However, this was the incident that made her most uncomfortable and she felt that "he had crossed the line." Mr. John's Version Mr. John denied saying anything to Sandra to discourage her from joining Ms. Farrell in the cafeteria. He was on his normal evening rounds when he asked Ms. Farrell to keep him company. His recollection was that Sandra was with them in the cafeteria while they talked. He could not recall moving into the hall or classroom and initially denied that they left the cafeteria together. Later he said he could not be sure and that they may have gone to these areas because that would be consistent with his making the rounds. He denied closing a classroom door or propositioning Ms. Farrell. Mr. John's Complaints After Ms. Hendsbee and Ms. Farrell filed their complaints, Mr. John filed his own complaint of sexual harassment against them. While these complaints are not to be adjudicated by this Board, they provide important information concerning events that took place prior to the filing of the complaints against Mr. John. 1. The Tg Room Incident Mr. John's Version On one occasion when Mr. John was making his rounds, a student complained that the TV was on too loud in the first floor lounge and Mr. John went to investigate. He entered the room and asked Ms. Hendsbee to turn the television volume down. She refused. He then took the remote control and adjusted the volume. As he was leaving the room, Ms. Hendsbee called him an "asshole". He insists that he made no remarks with a sexual connotation at the time. -9- He recorded the incident in his log book as required by College policy. Later he learned that Ms. Wagan had called Ms. Hendsbee to reprimand her for using foul language to a member of the College staff. At that meeting, Ms. Hendsbee related to Ms. Wagan her own complaints against Mr. John. Ms. Wagan asked Ms. Hendsbee to put the complaints in writing and the chain of events leading to this arbitration was set in motion. Ms. Hendsbee ' s Fersion Ms. Hendsbee says that she has a hearing disability which requires her to turn up the volume on a television set to hear it properly. She told this to Mr. John but he was acting in a spiteful manner when he persisted in asking her to turn down the volume. She insists that when Mr. John used the remote control he said to her something like "how do you feel when someone else touches your controls?" 2. The Walkie Talkie Incident Once when Ms. Hendsbee met Mr. John on his rounds, she grabbed his walkie-talkie from him and used it to speak to the staff person at the desk. Ms. Hendsbee says she did this in a playful manner. She relates his comments on" touching controls" in the later TV room incident to what happened here with the walkie-talkie. Mr. John told the Board that on his rounds he tried to use the walkie-talkie but it was dead. He put it down and went to use a nearby phone to make a call. When he returned, the walkie-talkie was gone. Later it mysteriously re-appeared and he saw a smirk on Ms. Hendsbee's face. He concluded that she had played a joke on him. 3. The Farrell Letter to Mr. John A few days after Halloween in the fall of 1996, Ms. Farrell and a friend, Des Daly were in the library using a computer to write E-mail letters to some people they had met at the Halloween party. They had also handwritten some letters to people who did not have E-mail. When they finished they passed Mr. John at his desk and he asked what they had been doing. They told him -10- they had been writing letters to some people. At this point the evidence of Mr. John and Ms. Farrell are in conflict. Mr. John's Version Mr. John said that Ms. Farrell asked if he could receive E-mail on the monitor at his desk and he said it was not set up for E-mail. Ms. Farrell and her friend went away, came back and handed him Exhibit D, a letter addressed to him and signed by Ms. Farrell and Ms. Daly. Before leaving she asked Mr. John not to read it until after she left. Mr. John read the letter and was shocked by its contents. He crumpled it into a ball and threw it into the garbage can. There were two other employees nearby who moved to retrieve the letter so they could read it. Mr. John then took it out of the garbage can and put in his briefcase. One of the other employees asked to see it and Mr. John showed it to his two colleagues. He then crumpled it again and threw it in his briefcase. Later Ms. Farrell phoned down to ask if he had read it and he said he had read it. Ms. Farrell's Version Ms. Farrell said that when Mr. John asked her and her friend Des Daly what they had been doing, they showed him one of the handwritten letters they had written. He said he would like to receive such a letter from them. The two women went back to the library and jointly wrote Exhibit D and handed it to Mr. John. She asked Mr. John not to read it until she and Des had left. Later she phoned to the desk where Mr. John worked and asked him if he had read the letter. He said he had read it and was going to read it again. The handwritten letter filed as exhibit D is appended to this Award. The College took considerable time in processing Mr. John's complaints. College staff testified that the Centre had a heavy load and had to set priorities in its work. The complaints against Mr. John were given higher priority than Mr. John's counter-complaints because the Centre staff felt they should have priority given the fact that Mr. John was in the meantime suspended with pay and the two complainants stated that they were concerned about their safety. -il- Eventually, Mr. John's complaint against Ms. Hendsbee was dismissed and Mr. John withdrew his complaint against Ms. Farrell. The Issue To Be Decided The Board agrees with counsel for the Union who stressed that Mr. John was disciplined for violating the College's Policy on Discrimination/Harassment. While the College had a more stringent policy against fraternization of residence staff with female students in residence, violation of this policy was not the basis for the discipline imposed by the College which is the subject of the grievance before this Board. The Counsel for the College agrees that the matter before us involves an alleged violation of the Policy on Harassment by Mr. John. This Board must address two issues: 1. Did Mr. John violate the College's Policy on Discrimination/Harassment. More specifically, does the evidence presented to this Board show that Mr. John engaged in acts which could be characterized as sexual harassment. 2. If Mr. John was guilty of sexual harassment, was the discipline imposed by the College excessive given all the circumstances. The College's Argument In the view of the College, Mr. John clearly crossed the line between friendly discussion and sexual harassment with these two students. Even if we focused only on the activities where the grievor admits he acted incautiously, there are sufficient grounds to find that he engaged in sexual harassment and that the penalty imposed was warranted. Where his version of the events differs from that of the complainants, the complainants version should be preferred. They had no motivation to lie. Their testimony was consistent, whereas Mr. John changed his story on some issues and was vague in his recollection of other issues. If we look at the various allegations of sexual harassment, the College's actions are clearly justified. -12- Ms. Hendsbee' s allegations relate to the window blind incident, the swimming incident, the TV incident and unwanted touching. In the window blind incident, Mr. John admits to making an obscene gesture simulating masturbation. He also admits to telling the story of the van incident which had nothing to do with the matter and was related only for its sexual connotation. We have no reason to doubt that he graphically demonstrated oral sex as charged by Ms. Hendsbee. All of these incidents constitute "sexually oriented behaviour or remarks which create a negative psychological environment." Ms. Hendsbee found them offensive. There was no work related reason for Mr. John to say and do these things. They clearly violate the College's Policy and by themselves warrant severe disciplinary action. The swimming incident also is a clear violation of the Policy. Mr. John had no need to comment to Ms. Hendsbee that he had watched her on the monitor or that she could improve her swimming. He was not hired as a swimming instructor. She understandably took offence to his comments which violated the Policy's prohibition of "inappropriate comments about ....... physical ..... activities." In the TV incident, Mr. John may have had reason to turn down the volume on the television but he had no reason to make comments with sexual overtones concerning "touching your controls." Nor did he have reason to touch Ms. Hendsbee's back and shoulders - a violation of the Policy's prohibition against "unwanted physical contact." The fact that Ms. Hendsbee first complained after being reprimanded for using foul language to Mr. John, does not in any way detract from the validity or significance of her complaints. As for Ms. Farrell's complaints, they also demonstrate behaviour by Mr. John in violation of the Policy. When the grievor commented on Ms. Farrell's clothing, it was an example of "inappropriate comments about clothing" in violation of the Policy. His invitation to visit him on Friday was not warranted. His invitation that she visit him when she moved out of the residence clearly implied a desire to establish an unwanted sexual relationship with Ms. Farrell. Perhaps, most serious of all was his discussion of his sex life and his invitation for her to have sex with him in a closed class room. As Ms. Farrell said, on this occasion "he crossed the line." -13- The Union's Argument Mr. John may have violated the College's policy against fraternization but that is not why he was disciplined. Nothing in his behaviour can be considered as a violation of the College's Policy on Harassment. Ms. Hendsbee did not complain until the TV lounge incident when she reacted in anger to being reprimanded. If she was so offended, why did she not complain earlier? She enjoyed Mr. John's stories related to the window blind incident and laughed when he told them. Mr. John's comments on her swimming technique were intended to be helpful and in no way harassed her sexually or otherwise. If Mr. John had a practice of touching students, why did no one other than Ms. Hendsbee raise this complaint? In any case even if he did rub her back, she herself stated that once she told him to stop, he never did it again. Ms. Hendsbee was a well-known trouble maker in the residence. When Mr. John confronted her in the TV lounge incident he challenged her leadership of her clique. When she was reprimanded for her foul language, she decided to take revenge on Mr. John. She and Ms. Farrell admit that she got Ms. Farrell to launch her complaints to support Ms. Hendsbee's efforts to hurt Mr. John. As for Ms. Farrell, there is no basis for her complaint. She admits she initiated the hugging incident. She states in her complaint that nothing Mr. John did up to the classroom incident offended her and it was only that incident that she would characterize as "crossing the line." As for the classroom incident, there were no witnesses who observed it. While there were students in the hallway at the time, no one testified to seeing the grievor and Ms. Farrell in the classroom. Even Ms. Farrell's version of the story clearly shows that if they were in a closed classroom, nothing untoward happened there and Mr. John did nothing to prevent her from leaving. It is true that with hindsight, Mr. John sees that his friendly personality and his desire to make the residence a welcoming place got him into difficulty. He should have been more cautious as a way of preventing unwarranted allegations against him by disgruntled students. He had worked in the residence for five years. Until these complaints, no one had ever before complained about his -14- behaviour and certainly no one had alleged that he was a sexual harasser. Ms. Hendsbee was motivated to hurt Mr. John, and Ms. Farrell was her close friend and collaborator in this endeavor. The Award The Board concludes that there is sufficient grounds for a finding of a violation of the Policy on Discrimination/Harassment by the grievor in those areas where Mr. John admits to certain behaviour. The gesture simulating masturbation and the story of sex in the van are violations of the Policy. They are "inappropriate comments about ...... activities" that offended Ms. Hendsbee. Similarly, Mr. John's comments about Ms. Hendsbee's swimming violated the Policy. The fact that Ms. Hendsbee delayed her complaint until she was annoyed by Mr. John in the TV lounge incident in no way diminishes the nature or seriousness of her complaints. As for Ms. Farrell, we give no weight to her complaints other than the classroom incident. She herself invited an escalation in the sexual banter between herself and Mr. John. She initiated the hug and her letter to him (Exhibit D) is more sexually explicit than anything he may have said to her. Although there were no witnesses to the classroom incident, we have concluded that her evidence on this matter is to be preferred to that of Mr. John. She was very clear on what happened whereas Mr. John changed his story and was vague in his recollections. The notes compiled during the Centre's investigation clearly indicate that Ms. Farrell discussed the classroom incident with friends in the residence before Ms. Hendsbee suggested she file her complaint. When he suggested she have sex with him and closed the door, Mr. John did cross the line. The fact that he did not prevent Ms. Farrell from leaving speaks in his favour. After examining the evidence and argument, we conclude that the grievor was guilty of sexual harassment. What remains to be decided is whether the penalty imposed was excessive. In Mr. John's favour is a record of five year's service with no prior discipline. Also to be considered is the fact that -15- when he received a clear message to cease his offensive behaviour, he did promptly. Finally, those who decided on the on the discipline considered alleged offences related to Ms. Farrell that we have dismissed. For all these reasons, we conclude that the two week suspension without pay was excessive and that it should be reduced to one week suspension without pay. Mr. John should receive the one week lost pay without interest in the pay period following this Award. His personnel file should show only the reduced penalty imposed by this Board. The warning letter shall remain in his file and we see no reason to interfere with the College's decision to transfer him to duties outside the residence. Date at Toronto, Ontario this day of 1998. Arthur Kruger concur/dissent Peter Hetz concur/dissent Pauline Seville