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Home My WebLink About1988-0912.Courtenay.92-12-01 SE LEMENT REGLEMENT BOARD DES GRIEFS ~BO DUNDA~ ~TREET WEST, SUITE 2100, TORONTO, O~TARIO. MS~ ~Z~ TE~E~O~vE/TELE~O~? ~80, RUE DUNDAS OUEST, BUREAU 21~/ TORONTO [ONTARIo): MSG IZB ' F4CS~LE/TELECOPlE : (416) 32~-~396 9[2/88 IN THE ~TT~R OF ~ A~IT~TION THE CRO~ EMP~YEES COLLEQTIVE B~RGhlNING ACT Before THE GRIEV~CE SETTLEMENT BOA~ BETWEEN OPSEU (Courtenay) G~ie~or - and 3 The Crown i'n Right of Ontario (Ministry of HeaZth) Employer Will/am Fawcett .Thir~ Part~ BEFORE T. WilSon Vice-Chairperson P. 'KI~ Ee~er H. ~ight Me.er :~- FOR THE S. Ursel GRIEVOR Counsel . Cornish Advocates Barristers & Solicitors FOR THE ~. QuicX ~MPLOYE~ Counsel · - Legal se~ices Branch Ministry o~ Health FOR TH~ P. Yudcovitch T~IRD PARTY. Counsel Mathews, Dinsdale & Clark HEARINOJanuary 23, 1989 February 23; 24, 1989 April 4, 18, 19, 1989 June 27, 29, 1989 July 12, 1989 October 30, 1989 November.20, 27, 28, 1989 January 4, 5, 1990 March 12, 1990 April 5, 6, 1990 June 25, 1990 JUly 6, 1990 November l, 1990 DEC,ISIO~ The Grievor, Patricia Courtenay, is a Dispatcher (R.O. 2) at. the Georgian Central Ambulance Communications Centre (CACC) in Barrie. On August 18, 1988, she filed the following grievance: I grieve Article 27 of the Ontario Public Service Collective Agreement. She seeks the following ~elief: 1. Removal of disciplinary notices from my file. 2. Addition to corporate file of letter of commendation and recent performance appraisals. 3. Removal of Bill Fawcett from any position of being able to make reprisals, or threats of reprisals and from any position which he can confer, grant or deny a benefit or advancement in regards to this employee. On the first day of hearing, the Board on its. own motion ruled because of' the remedy sought by the Grievor against the manager of the Georgian CACC, Mr. Fawcett, that he should be given notice of the hearing and an opportunity to participate as a party with Counsel, He accepted that offer and participated with Counsel throughout the entire hearing. The relevant provisions of Article 27 are as follows: SEXUAL HARASSMENT 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. 27.10.2 Every employee covered by this Collective Agreement has a right to be free from, (a) a sexual solicitation or advance made by a person in a position to conler, grant or deny a benefit or advancement to the employee where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or (b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the employee. 27.10.3.1 The time limits set out in Section 27.2.1 do not apply to complaints under this Article, provided that the complaint is made within a reasonable time of the conduct complained of, having regard to all the circumstances. 27.10.3.2 Where, at any time either before the .making of a complaint or the .~.~: filing of a grievance under Article 27, the Employer establishes an investigation of the complaint, or the employee agrees to the establishment of such an investigation, pursuant to any staff relations policy or other procedure of the Employer, the time limits for the processing of the complaint or grievance under Article 27 shall be suspended until the employee is given notice in writing of the results of the investigation. 27.10.3.3 Where a complaint under this Article is made against an employee's supervisor, or any person with supervisory responsibilities at a higher level over the employee, any oral complaint or written grievance .i',;:'~: which is expressed in Article 27 to be presented to the supervisor may be presented directly to the Deputy Minister, or the Deputy Minister's designee, or any person appointed by the Deputy Minister specifically to deal with complaints or grievances under this provision. 27.10.4 Where it appears to the Grievance Settlement Board that an employee who is a gdevor under this Article has made a complaint under the Ontario Human Rights Code relati0g to the conduct which is the subject of the grievance, the Grievance Settlement Board may, as it sees fit, adjourn the grievance, stay the grievance, or dismiss the grievance. 27.10.5 An employee who makes a compfaint under this Article may be accompanied and represented by an employee representative at the time of the discussion of the complaint, at each stage of the grievance procedure, and in the course of. any investigation established by the Employer under any staff relations policy. _ The language of the provisions Sections 27.10.1 and 27.10.2 track the language of the Ontario Human Rights Code, 1981, subsections 6 (2) and (3).'The Government of Ontario has also issued a POUCY Staff Relations on the matter which is dealt with below in this Decision. The Grievor has been employed by Georgian CACC since 1983 as,an ambulanc~ dispatcher. Her personal educational background was-in nursing. Upon, starting with Georgian CACC as a Go-Temp, she was given six weeks of training with Jan Wilton, one of the dispatchers there. The Manager at the time was John Hambides. In October, 1984, Wif~iam Fawcett (the Third Party' in these proceedings) succeeded Hambides as the Manager of Georgian OAOO. According to the Grievor, about that time shortly 'after Fawcett had become the manager, a full-time position for dispatcher was posted. The Grievor who was interested in competing in the competition approached Fawcett just before the beginning of the evening shift and asked him if she would need the First Aid Certificate and the Radio Operator's licence to apply. He replied that she would need to apply for those. When she asked him who would train her, he suggested a-supervisor attendant at the Midland Centre who he. said was qualified to certify. According to the Grievor's testimony, when she then asked whether she would be apart of a class or get it privately, Fawcett winked and smiled saying: "1 am sure he could give you a private course." She testified that she felt stunned and asked: "An accredited course?" To this Fawcett replied: "Oht He could give you a really good course." and smiled 'again. She understood that Fawcett was making some inference of a private encounter - Sexual in nature - other than training for a radio ope{at°r. That same evening whi)e the Grievor was working alone on the evening shift, Fawcett buzzed at the door. He came in and sat down at the dispatcher's console next 5 to the Grievor. He did not say much after the formal greetings. She asked him if he wanted to see the operadoh of the Centre. She testified that he replied that he did not want to get that familiar with the job because he might then.have to tilt in for a dispatcher.' He stayed about two hours. She tried to direct the conversation to business matters, but he would direct them to the personal. He asked about her 'background. When she told him that she had a nursing background,' he said that was good, nurses had been known to be fdendly and winked.. She understood that. to have a sexual connotation. He commented that he liked slim women. He told her she was worldlY in some ways and young in others. He did not do any work and did not go to his own office. He indicated he was just going to watch her work. The following evening, he came in again and again talked along the same lines. 'A Week later, the Gdevor discussed it witt~ another employee. She had been having similar problems. The day after, when he came in at the. beginning of another shift, Courtenay spoke to him about the possibility of having a staff meeting on her day off. He 'said'that if she really wanted a staff meeting they could have one back in his hotel room..' Although this was said flippantly or jokingly, the Grievor thought it was sexual in implication in. light of her dealings With him to date and the treatment which she had already received from him. He winked and smiled. She spoke to two other employees, Jan Wilton. and Wendy Ca~dwel?, and found that they were experiencing similar problems. Jan Wilton told her that she had overheard him make inappropriate comments · about another employee, i.e. that one of the (female) employees looked "really ready to him." Jan also indicated to her that she thought he had brushed up against her in an ~ At this time, Fawcett. was still staying at a local hotel as he had only recently come' to Barrie to take up his position as manager of Georgian CACC~ ~ There are two employees with the surname Caldwell: one is Sandi Caldwell who became a supewisor and was a witness at the hearing; the other was Wendy Caldwell- Graurgaard, generally referred to in'the evidence as wendy. inappropriate manner. Wendy Caldwell was having even worse problems because Fawcett had told her she was favouring one of the ambulance drivers with extra overtime; that particular driver happened to be her boyfriend and there was the suggestion that this was a type of sexual favouritism. The Grievor testified that Caldwell mentioned to her that Fawcett had grabbed her shoulder and she seemed quite angry. The Grievor and Jan Wilton decided to go to the Regional Manager, .Fred Rusk. .They wanted Rusk to be a mediator or witness. Rusk calted it sexual harassment and wanted the two employees to put in written complaints. He said he' knew of an expert in the field in London, Ontario, and spoke of going to speak to him. The GrJevor testified that she felt at this point Rusk was proceeding too quickly into a formal situation. They just \ wanted to give _Fawcett a chance to stop. Although they had made a written complaint, Rusk indicated that he would just keep it as a reference (the Grievor's was Exhibit 3, Tab 13), but since they feared he might use it as the basis for a formal complaint, they took it back. At this point, Wendy Coldwell decided· that she was not going to go'into the meeting with Fawcett. She said that she had already gone through that stage and she wanted to pursue a formal complaint. HoWever, she claimed that she had been advised by a lawyer that she needed their testimony since she did not have any otl~er witnesses. The result was that a meeting was held in which Rusk, Fawcett, Wilt(~n and the Grievor were present. The two women confronted him with their allegat(ons.'He denied brushing up against Jan Wilton. H~e did however~ admit to the comment about a female employee looking ready, but said that at the time he had'thought Wilton was a supervisor, and not just a dispatcher. He denied the Grievor's accusations. With respect to the hotel room comment, she testified that he replied that he would not call her a liar, but she - interrupted him and said that he did and he knew what was said. At the end of the ~ Hereafter wherever there is a reference to a Tab numbe{;, it refers to one o~ the documents in Exhibit' 3 which was an exhibit book. 7 meeting they apologized to each other over any misunderstandings and the Grievor said that she hoped they would still be able to work together. She felt that would be the end of the matter. Her apology was intended as a gesture that there were no hard leerings. After the meeting, there were no more incidents ~or about six months. Jan Wilton went on maternity lea~/e and Wendy Ca,dwell left the employment of CACC. In June, 1985, the Grievor was appointed to the classified staff. In. August, 1985, the Grievor received an evaluation which she considered unfavourable. She testified that also almost from the first week of becoming classified staff, she began to receive correspondence which She considered critical of her. She became upset so she 'went in to speak to Fawcett. He assured her that it was not important; he .explained that it was just his way of keeping a record. This was to be a recurring issue throughout these proceedings: It was the' Grievor's contention that Fawcett was engaged in systematic harassment of her in retaliation for her earlier complaint. It was his position and that of his lawyer that he was a paper manager,' i.e. he generated large numbers of letters and memoranda on events and incidents as they occurred as part of his management style and that the Grievor misinterpreted these memoranda as harassment. The previous manager at Georgian CACC appears to have had a tess involved and less formal management' styte than Fawcett. indeed, my impression from the evidence is that the previous manager was rather easy-going or even "laid back". In August 1985, Fawcett completed the Employee Evaluation Report'for the Gdevor referred to above, the first ~he had received since becoming classified staff. The Grievor considered it to be negative. It is attached to this Decision as Appendix B. Also in the Comments section, he referred to documenting several matters during the past three months. Courtenay wondered if that meant that in fact the documentation' was important, though, he had assured her it was not. When she met with him to discuss the Evaluation, she asked what the "frequent errors" were that was ticked off in it. She 8 testified that he could not give an example. There were letters relating to three matters attached to the Evaluation but she disputed fault on her part and in any eVent in her view did not represent "frequent errors", With respect to item #5 - PERSONALITY: he had originally marked that as "questionable for this job,'"'After discussions over a number of weeks, he changed it to "Satisfactory for this job". She pointed out that she had been the dispatcher on duty during the tornado in May 1985 in Barrie, and her coworker had worked for Orangeville. It was the most stressful type of situation for a dispatcher and in fact the tornado had hit her Own street and she had not known the fate of her own family at the time. She had received a complementary letter from Fawcett in June for.her work during the tornado. With respect .to the Personality eval'uation, he said she appeared too nervous. He changed #7 to" Very prompt" when she said that she had 'never been 'late and only sick a, couple of times.. On # 10, they disagreed about Stability, but, of course, that is su. bjective, with respect to the space under Comments: he had written "however', appears 'to have difficulty getting along and fitting in with fellow employees." She told him that she' had never .heard of this before and asked with whom She was :having difficulties, He would not name names nor given incidents. She also disagreed with him when he said she Seemed unhappy on the job and would prefer a different job. She also denied a complaint that she did not clean the dishes te[ling him that she not.only did her own, but - those of others as well. Then he told her that Dennis wilson and Paul Reid did not want to work with her. Later when she approached them about this, they denied it. Indeed, they went With her to a meeting with Fawcett and denied it. Sh; then 'told Fawcett not to put things like that in her Evaluation. The meeting on the Evaluation ended about 11:00 a.m. and the Grievor felt quite upset and on the brink of tears. At that time, the senior Dispatcher, Sandi Caldwell was the acting supervisor. The Grievor testified that she turned to her'and said that she did 9 not feel well, would like to go home and asked her if she could fill in for the shift for her. She replied that it was no problem, The Grievor got up from her desk; Sandi sat at the' console and the Grievor called a taxi and went home. When she got home, she got a call from. Fawcett asking where she had gone; he said everybody had said she had just disappeared. He told her that Sandi Caldwell denied that she had told her she was leaving. On August 29,'Fawcett wrote a Memorandum stating that On August 28, Courtenay had left work suddenly and that Caldweli had told her she could not work for her because she' had beer!, granted a half day vacation day for that afternoon..Later, Courtenay called in to say she would not-be working on August 29. She testified that at that time she was thinking of quitting as she figured they were out to get her. On August ~30, a meeting took place and Fawcett told her 'that Caldwell either had not heard or Courtenay had not said she was ill. Fawcett then wrote her a letter instructing her to · advise him in the future if she should find it necessary to absent herself from work (Tab 26). The Grievor felt that she had followed Standard procedure but it was just her Word against Caldwell's. He'then wrote a memorandum to file dated August 30 (Tab 25). There was also criticism of the way she had completed AS5D forms4, but she testified that this was valid and she accepted it. Fawcett also. referred to two other incidents occurring on July 3,1 which for convenience sake I refer to as the Mr. C and Mrs. K incidents. A Mrs. McBride at the Royal Victoria Hospital booked an ambulance to take Mr. C from his home in Midhurst to Sunnybrook Hospitals in Toronto. Courtenay testified that McBride told her that the bed at Sunnybrook was available. At the end of the conversation, McBride said she would have to call Dr. Berry to see if the patient could take the bed that was a~aitable. Courtenay testified that she told McBride to call if there was a problem; otherwise be The forms 'made out to record calls. Officially called Sunnybrook Health Science Centre. It is a major teaching hospital. ready for. 13:00 hours. Shortly afterwards McBride called back and said that there was no bed available at,Sunnybrook and to bring the patient back home. The GrieVor then wrote, up two incident rePorts (Tabs 9 &,13) and listened to the tape of the converSation. tn the July 4 incident report, Courtenay wrote · "The mixup was my fault". In testimony she stated that she felt that the words from McBride Were vague. In her view, the mix-up was not all her own fault. It was a Code 1 em. ergency6. On July 4, Fawcett and the Grievor had a meeting about the inciden[. Fawcett then wrote a Memorandum (Tab 15) which places the blame on the Grievor. ~n the other incident (Mrs. K incident)'on the same day, the Grievor for policy reasons, cancelled this Code 1 call and in the course of the day had not rebooked it; 'then, a foltow-up call came from the hospital. The Grievor · admitted that she had not made up a dispatch form prior to the hospital's calling back, but maintained that she had not forgotten about the matter. Fawcett refers to this incident as Well in the Memorandum and concludes: I must agree with you that these incidents show an inattention' to the job resulting ,. . in inconvenience to the patient. I expect an improvement in the future. The Grievor did not feel that these minor errors required a letter to the file of that type and that it distorted the facts. She considers that the memorandum relating to the Mr. C incident is a disciplinary letter and as part of the remedy requested asks that it be removed from her file. " On June 19, 1985, there was an incident involving the Grievor relating to whether an ambulance with a patient on board should go to the Stayner Medical Centre. This als° appeared in the Appraisal. The Wasaga Beach ambulance was proceeding to Creemore on a Code 4 call. It picked ui~ the patient.and booked into service. They said they were en route to the Stayner Clinic. The patient had a Pulse when they picked him up and they were doing'CPR. She testified that policy provided that in such a case the dispatcher was Code 1 is a deferrable CaE Code 4 is life threatening. 11 to send the ambulance to the nearest medical centre with the' apPropriate facilities, i.e. in this case '(heart attack) with a ventriculator with a physician. The Grievor's information was that Stayner did not have the equipment. The crew said "notify Stayner';; she called Collingwood Hospital which to her knowledge was the nearest facility equipped for this emergency. She then checked on Stayner's facilities and called the ambulance back to tell them that Collingwood was the nearest appropriate facility: they said they were in service to Collingwood. On June 25, Fawcett wrote a Memorandum to the Grievor on the incident saying: If you had no intention of calling the Stayner clinic then you should have told the crew that you would not call. As well, if it was your intention to direct the crew to Collingwood Hospital then they should have been so advised. To point out to the crew that they are aware that Collingwood is the closest hospital neither satisfies their' request for'you to call the clinic nor directs them to the closest medical facility in-line with Sec.50 of.the Ambulance Act. The Grievor wrote up an incident report, in her view, F~awcett seemed to be saying she should have directed them, while in her own mind, she was just trying to be diplomatic. A number of meetings took place over this. On September 20 he wrote that he would give her the benefit of the doubt and amended the Evaluation Report as discuSsed (Tab 31). There was another Memorandum with respect to completing Certain forms on the night shift. The Grievor replied that no one was doing them; there was hardly sufficient room on the forms. On August 28, 1985, Fawcett wrote a Memorandum to her file outlining what he had said at the appraisal meeting (Exhibit 3-24) but she was unable to recollect whether she had received it. She went to the union stewart about what she now considered to be unfair treatment. Another matter that had come' up in the evaluation was error rates on the AS5Ds. Before receiving it, the Grievor requested to meet with Sandi Caldwell about this and a discussion took place on August 14. They disagreed on the number of errors made and their significance. 12 All parties agreed that there was one letter in the Grievor's file that is disciplinary in nature, That is a letter dated August 15, 1985, from Fawcett; it is sufficiently important that I set out the text: On August 5, 1985 the Midland Ambufance Service was staffed with one vehicle at base and one crew on standby for callback to base. At 10:09 Hrs. that day the Midland Vehicle 329 was sent on a priority one call to County Road 6 and the Town-Line (1st) of Tiny Twp. Response to this call required the Midland.vehicle to. travel well outside of their area call-in boundaries which, as you know, are delineated in blue on the county map located in the rear of your dispatching console. Policy,' of which you are also aware, requires you to call the Midland standby crew into base should, their staffed vehicle be required to proceed beyond the call-in boundaries. You determined not to call in this standby crew. At 10:57 Hrs. you received ~ priority 4 call (by definition a life threatening situation) to the Port .McNicholl area. An ambulance was urgently required to respond to a young drowning victim. As you had earlier made the decision not to call the Midland standby crew to base you had no ambulance to immediately respond to this call, resulting in a delay.. tt is recognized that the ambulance dispatcher's task is often a difficult one ~requiring her/him to make important decisions quickly. To assist'you in this task, policy /procedures have been developed, which must be followed. You are instructed to follow these policy / Procedui'es in the future, In reviewing your report Concerning this matter I note that your decision not to'calf the Midland standby crew in to base was a conscious one. it is further noted, however, that in retrospect you would have followed policy. .- This matter is viewed most seriously and you are hereby warned that future incidents may result in further disciplinary action. By copy of this letter you are instructed to make arrangements with senior dispatcher Sandy Caldwell for a review of all dispatch policy concerning the dispatch and deployment of area ambulances. A copy of this letter will be placed .on your corporate file. The Grievor in testimony stated that she had made a mistake which she owned up to in'her incident Report of August 10. However, in her view, the discipline letter incorrectly set out the facts. In her own version of the events, the Grievor booked a Code · 1 call at 8:38 a.m. for later in the morning, tn doing so, she attempted to avoid an Overtime call-in. At 10:06 a.m. the other dispatcher, Dennis WilsOn, sent the ambulance on an out-of-area call without the Grievor's knowing about it until 10:27 a.m.' She and Dennis Wilson then discussed the situation and decibted to take no action. They felt that the ambulance would be ba. ck in 15 minutes and there WaS another stand-by ambulance on 7 minutes response time. However,' at 10:57 a.m, a Code 4'call came in: a baby had fallen into a swimmir~g pool. But the ambulance in service out of the area replied that they could not respond to the'Code 4 because they had a family member on board and their patient was on oxygen. This was new information. The on-call crew was therefore called into service. In fact, by the time the on-call crew arrived at base, the mobile crew was closer to the scene of the Code 4. In her report, the Grievor admitted that "our reasoning was faultY`'. Once the in-service ambulance was going out of the area, the dispatchers should have contacted the stand-by crew to come into base. The Grievor testified that it was not clear in the policies when coverage is deemed to be re-established. She testified that, at the time, she felt that, since Wilson was older and he was the one who had dispatched the ambu!ance out of the area, she should go along with him on the decision not to call in the on-call crew. The result'was that the response time was 10 minutes instead of three. But, she feels that the memorandum from Fawcett is accusing her of sending an ambulance out of the area without calling in a crew to maintain coverage, tn the middle of August, 1985, Sandi Oaldwell wrote a notation On an AS5D (Tab 19) on which the Grievoi- had noted that she had received 6 or 7 calls from citizens. It related to a large accident at a major intersection. Oaldwell wrote that these should be individually stamped with the information. The Grievor said since it is normal in such big accidents to receive numerous calls from different citizens, nobody ever had or ever has since actually made up separate AS5Ds for every such call relating to the same accident.' In the Grievor's view, this was just so much nitpicking But in a more sinister sense she 14 saw Caldwell as Fawcett's agent in a harassment campaign. In September, 1985, the Grievor approached her new union steward about her concerns. She told him that she was not content with her evaluation, but the steward ~old her that that was a management function. She also alerted him to the incidents 'going back to November, 1984. Next he informed her that there would have to be something in writing and that they could not grieve the evaluation.7 In any event, she set up a meeting with Fawcett and as a result, he wrote on September 20 that he was 'prepared to give her the benefit of the doubt.8 She testified that she now felt that she had stood up for herself and that he was not to evaluate her unfairly. Her next evaluation was in November 1985; it was, in her View, average and she took no steps with respect, to it. On December 30, 1985, Fawcett Wrote a Memorandum to the Grievor instructing her "to speak directly with the ambulance crews' whenever possible. Do not leave messages with hospital staff". Her explanation was that she did not speak with the nurse at emergency; Peter Carelf did. She believes that Carell got the same memorandum.' The reason this came up before us was that when she got to look at Fawcett's file on her, his note was still there9, On December 30, .1985, another memorandum was sent by Fawcett to the Grievor and Caretl about',their handling of two situations and they separately replied to eaCh incident (Exhibit 3-40). The memorandums were ,kept in. Fawcett's file. The Grievor considered this annoying. In 1986, she was put on the assignment of training new employees-something' which she testified is more difficult. She often had to work with untrained employees and there was not additional compensation for it. She requested a letter from Fawcett This reply seems somewhat puzzling in. light of s. 18(2)(b) of the CECB Act. See: p. 11 above. My own judgment on this particular memorandum is that it is simply a directive. 15 recognizing her efforts, but none was ever g~ven. Fawcett W_rote a number of memorandums to the Grievor on matters occurring. J~ se,~/eral incidents that occurred on May 7, 1986. Firstly, on May 9, Fawcett wrote a memorandum (Tab 46) relating to a stand-by situation shown in AS5D 305653 for May 7, 1986. Known at the hearing as the Bradford Crew Upstaffing incident~ this involved a caIFback to duty. The Grievor replied to the memorandum that the Bradford crew ~vas sent to Ravenshoe. & Leslie in order to cover the Sutton area and gave further details. Again, this memorandum was found in his personal file on the Grievor. Secondly, also on May 9 in another incident, two ambulance attendants filed reports ' (Tabs 45 & 46) complaining that they had been paged three times by Georgian CACC and that the dispatcher had insinuated that they were slow in responding. According to the Grievor's testimony, there had been some trouble in the past with the. pager and so they were paging twice, as required by the old policy anyway. The third page heard was for 'the Other~complaining attendant. Also it was Carell that One of the attendants spoke to,and ./ the Grievor thinks she misunderstood Carell. On May 12, Fawcett wrote a memorandum asking why the crews were paged so much. Fawcett sent back a. copy of the policy. But it makes no mention of the number of times crews are to be paged. The Grievor considered it a suggestion by Fawcett that she was nbt following policy. Then the ambulance service manager wrote a memorandum to Fawcett. But instead of simply informing him that the CACC was not questioning the ambulance crews' response time, according to the Grievor, he writes the memorandums to the Grievor and adds in (Tab 48) some "nitpicking" about the way ASSD is supposed to be lifted in and he was wrong or~ it as well. These documents were all in Fawcett's personal file on thb Grievor. In another memorandum also in relation to May 7, Fawcett wrote with respect to AS5D pointing out certain omissions relating to the probtem an ambulance crew had locating Elmgrove Trailer Park. On May 19, :the Grievor wrote out a detailed incident report. The next incident was raised in a Memorandum of June 2, 1986 from Fawcett to the Griever. It related to whether there should be additional coverage for Orillia. Fawcett wrote that the additional coverage for Orillia provided, in AS5D 307796 was not at his request. He wrote that she would remember what he thought about holding an Orillia car on overtime given it was a Friday eVening. He continues: "At no time were you requested to call 'ar) Orillia staff member in. As well You neglected to mention that you had a vehicle in Waubashene. I have no problem with your action in this instance as you must have felt it necessary, however please do. not credit me with a decision I did not make. If you have any question please see me Thanks Bill -' Her own testimony was that she was familiar with coverage policy but Fawcett had told the dispatchers that he thought coverage was inadequate in practice and not to worry so much about overtime; In the Orillia situation, she saw the situation as one where they would not normally call in a' crew but felt perhaps Fawcett would prefer it. She asked him his opinion telling him where all the crews were. He agreed it would be sensible to cat1 'in a crew in Orillia on overtime. As a result she made a note,on the bottom of the ASSD to the effect that they were called in at the request of the manager. She insisted that she did tell him about the ambulance in Waubashene. Although there was no further follow-up on this matter, the Griever testified that it put her in an awkward position. She asks herself whether this means she needs to get the OK in writing from him. The Griever identified a number of memorandums which she received from Fawcett and which were in his office file. These were in the Griever's view part of the pattern of harassment. She testified that she was getting about three to four of these per shift at some point. She said that Carrell commented on the number of memorandums received when he was on her shift. The documents identified as part of this pattern were exhibits 3, Tabs 54, 56, 57, 59, 60, 61 ,-62, and 68. They relate to the fall of 1986 and early 1987. Another set Of documents~° related to an overtime issue with respect to the Barrie ambulance crew in May, 1987. In this case, the Grievor wrote up an incident report~1 in anticipation of some dispute. Then Sandi Caldwetl wrote a Memorandum to the Grievor after reviewing the AS5D's with her, The Grievor testified that Caldwell twists what she told her. The Grievor claimed that she did not know that the afternoon shift crew did not want the overtime and had told Caldwell so. Again, these documents were in Fawcett's office file. The Grievor received a favourable Evaluation in August, 1987, but. a search of the corporate file.2 disclosed that it had not been filed there. In November, 1987, an incident occurred between Fawcett and the Grievor which is of great Significance in this grievance. The Grievor was on duty at the console with Diane. She was discussing her recent visit to Florida and Diane mentioned that she had a nice tan, to which theGrievor replied that it Was beginning to fade. The Grievor'testified that Fawcett who was in the room at the time then said: "It isn't the tanned parts we are interested in but the untanned parts we're interested in" and then winked. No one else said anything and he left. The Griev0r considered it an inappropriate~ comment about her body, that it was invasive and insulting. She thought that he was trying to get one on her, show that he can do what he wants and that there waS nothing She could do about it. On March 25, 1988, there was an incident involving an ambulance crew from Aurora. The Aurora crew was given a Code I call from York County Hospital to Holland . Landing. Shortly afterwards, 'the other ambulance attendant called back to express displeasure. The Grie'vor asked if he was refusing and he said no. Later when the Grievor ~ Exhibits 3, Tab 70 and Tab 103, page 12 ~ Exhibit 3, Tab 70 . "~ The term corporate file refers to the file in the Human Resources office as distinguished from the file that Fawcett kept in his own office. 18 was returning from the washroom, she heard him on the .radio saying: "No response from Georgian". She testified that a minute later, he changed from tocal frequency to the provincial channe~ and ca, led Metro dispatcher and said he was in service to York County Hospital When Metro replied that the message was garbled, he ca,ted Mississauga. The Grievor then telephoned Mississauga and told them not to worry about it. The Gdevor wrote up.a report (Tab 75). Fawcett however asked for a further report' by the end of her shift. She wrote back that the circumstances were completely explained in her earlier report and requested a meeting. He then wrote a memorandum instructing her to write the report requested. She testified she prepared for the meeting on March 29, b~Jt he was not there as he was at another meeting. The Barrie ambulance incident, in May 1987 started the Grievor to think that she was being treated unfairly, that she was getting more memos than the other dispatchers and when she saw a' pamphlet on sexual harassment that was being circulated, she identified her situation with parts of it. She' also heard rumours about this time that' Fawcett who was temporarily assigned to Medcom was making approaches to a'femate employee .there. She then read through the Collective Agreement and noted that an employee can offer the boss the chance to do an internal investigation.'~ She decided to go to Fred RUSk who is the Regional Manager. for .Region 3, in a meeting in April, 1988, she asked him what was to be done next. He had her fill write out a complaint, which she did on April 18. 'The Grievor wrote: I am making a formal complaint about my manager Bill Fawcett. You will recall that in November 1984 I made a verbal complaint about gilt With regards to unwanted sexual advances. We had a meeting with Bill at that time to try to ensure this bel~aviour stopped. Since that time the harassment has continued but not in a sexual form, predominantlY..I am prepared to furnish YOu with details about this entire pattern of harassment, ~3 The Collective Agreement provides for a suspension of the time limits under the Collective Agreement when such an internal investigation is carried out: see: 27:10.3,2 When she asked Rusk what the procedure was, he told her that he would have to check it with his supervisor. The GrJevor then testified that he continued: "If you were raped, I could just Call the po/ice." Although she was upset by this comment, she feft that he seemed to be quite helpful and understanding. The next week, she decided that she would have to see her personal file to construct her case. However, the supervisor, Dennis-Wilson, indicated that it was Fawcett's file,' he was away and Wilson could not authorize her to see it. HOWever, he did make arrangements for Rusk to get the file and also got the corporate file down from Penetang. At the next meeting, the files were there. Rusk called the Grievor over and gave her the files. Fie then said that be'did not see anything out of the ordinary. She testified that his manner had changed. He said he had spoken to Fawcett and that he had said that if she continued to bring up these events, he would go to a lawyer. The Grievor testified that .she felt intimidated: she had only wanted an internal investigation. She said that now she woufd have to get a lawyer. He advised her not to trust the union steward, Pete Care~l. But wou~d not say what ulterior motives Carell might have and that he' would deny saying it. He told her to make the appropriate decision. She felt' he was trying to intimidate her to drop the case. She photographed the. documents and left. She then contacted' Nell Pollak of the union who called Rusk and withdrew the personal complaint so that a grievance could be filed. A grievance was not filed immediately as Pollak needed to involve union head office to get advise. The Grievor continued to work but found she was getting pressure ~rom staff to drop the whole thing. Then, on June 10,' 1988, the Grievor received a letter from Fawcett criticizing her' for an incident on May 22. On that date, the Grievor was working the night shift with Syd McNevin. The day staff totd them that they had contacted McKechnie, who was the manager of Collingwood Ambulance Service, to up-staff. He had told them that he would give them the names of the crews that they could call. They agreed. At 9:20 p.m., Nevin 2O called McKechnie to upStafl. McKechnie provided the names of crew and McNevin agreed to call them. The Grievor then told McNevin that they were not to call the crews; it was against policy. She then calied McKechnie and explained that it was against policy, that she could not be responsible for what the day crew did and that'it was his responsibility to call his own crew and she would document it that he had refused. She would call Wasaga to upstaff instead. At this point McKechnie agreed to call the crews. But he said he would write a letter on it. Policy was that/in such a case, tl~e Grievor should write a report: However, because in her experience, McKechnie was always writing letters, she decided not to write a report. In his letter of June 10, Fawcett made two basic criticisms of the Grievor: 1. that she had. not written an incident report at the time although McKechnie had indicated that he would write a letter; and 2. as folloWs: Mr. McNevin, working Co-operatively with Mr. McKechniel had the situation under · control Your intervention aggravated Mr. McKechnie and diminished the spirit of. cooperation and good-will we should all be doing our best to promote. Should you have any questions concerning this matter please contact supervisor, Mr. D.~Wilson The Grievor believed that she was following policy correctly. Aisc she felt now that she was being criticized ,for intervening, white previously, she had been criticized for not intervening (August 5, 1985 incident). In her own words, this letter cinched it for her that she was being unfairly treated by Fawcett. She felt that since nothing had yet happened on her pendlng grievance that she had weakened and that the Union would not act. The August 1988 Performance Appraisal for the most part marked her Work as satisfactory except that it shows that her reporting to work was unsatisfactory. At the time, she was off work on a doctor's certificate, it also indicated that with respect to tac( and flexibility When dealing with Others her pedormance was marginal. She testified that this was based ? on the McKechnie incident. She was off work because of stress which she testified came to a head while pursuing her complaint. By August 18, she was able to ge~ herself to go ' ahead and file the present grievance. But before that there was' in her view more harassment about returning to work. This continued after September 8, into a meeting on September 20, 1988. The Grievor agreed in cross-examination with Ministry Counsel that Hambides had a different management style from that of Bill Fawcett who writes a large number of memorandums. She explained her interpretation of Fawcett's sexual innuendo both with reference to .Laurin 'giving private lessons and to having a private meeting in his hotel. room to his body language and his winking. When asked if she knew that Fawcett had a twitch she said yes but she could tell the difference. She agreed that it was reasonable for a manager to" bring her mistakes to her attention such as in the Mr.C incident. However, he should do the same for everyone, not just her. With respect to the Mrs. K ' incident (failure to rebook,), the schedule for July 3 indicates that the Gdevor worked days; yet Fawcett wrote that the hospital called back'at 7:00 p.m. to rebook which suggests she left without rebooking. She testified that sometimes shifts are changed. Her error was in not making up' an AS5D, but she saidthat it is a common error, yet she got a letter (Tab 15). It came up again in her evaluation; she considered it to be ni'l~picking. The Grievor conceded that Fawcett had encouraged her to apply on the competitions for a permanent position. However, in fight of the criticisms, she felt it was part of a harassment technique to build her up and then knock her Clown. She spoke tO others on all the shifts, and they were not getting as many memorandums as she was. With respect to Tab 6, the June 25, 1985 letter re Stayner Medical Clinic, Fawcett undertook to remove it from the file, The witness insisted 'that it remained on the corporate file but ,Employer counsel pointed out that it did not bear a Human Resources' stamp, thus suggesting that it was never on the corporate file. Wit~ respect to the failure to call in the Midland Standby crew inciden¢4 involving herself and Dennis Wilson of ~4 There was a fatality in this case when a child who fell in a pool was not revived. 22 August 5, 1985, and in particular Fawcett's letter of August 6 (Tab 18), she maintained in cross-examination that her Complaint was that she was less to blame than Dennis Wilson, but Fawcett made no distinction. Although the letter was disciplinary on its face, the Grievor did not' launch a grievance. With respect to Sandi Caldwell's' mo[~itoring of errors on ASSD forms, it was her view that since Sandi acted under Fawcett's direction that this was just part of the 'harassment. Other issues such as the too many pages incident, the difficulty the ambulance crew had in Elmg{0ve Trailer park and the Memo of June 2, 1986 (Tab 53) were in her view further examples of Fawcett generating more paper work for her, instead of .just listening to the tapes himself. She similarly viewed a memorandum from Sandi Caldwelt on September 20, 1986 (Tab 56) as nitpick'ing. Other examples were at Tab 61, 62, &68. She testified that in some,time periods she was getting two to three such memorandums per shift. Although memorandums from Caldwell with respect to the trafning of new employees were in the file, replies by the Grievor were not in the file and there had been no response to her request that acknowledgments for her efforts be put in the corporate file. In the incident on May 2, 1987, involving an overtime issue with Barrie Ambulance service, a complaint was filed by them with Fawcett setting out.that it was not for the dispatcher to say who should stay after 15:30 hours; it was Barrie base policy that the day crew not go to Toronto on non-emergency calls after 11:00 a.m. But Couitenay testified that Georgian CACC does not follow that policy unless it is a cut and dried situation. In this particular situation, the 3:30 crew should have bee~ held over for coverage anyway. To accommodate them, she would have to have turned around the ambulance going on standby, in her opinion, these policies are generated by the bases just to play games. The reference in the complaint to 24 hour advance booking did not apply because they did not get 24 hours notice back from the I~ospitat: you take a hospital 23 bed when its available. And with respect to who gets overtime, they did not express any preference. She did, however, concede to Caldwell that next time she would ask who wanted the overtime. In fact, later she found out that the writer of the complaint actually did not mind working the overtime, ., With respect to the Aurora Crew incident on March 25,. 1988, the Grievor admitted she was not sure whether she had made a bad judgment cal[; she would try to calm herself in the future. She felt at the time that this incident was going to get blown out of all proportion and she wanted to meet with Fawcett to'exPlain that there was a history of dispute with that crew. She did not in fact complete another report as requested in his Memorandum of April 12. He was not there on April 15, the date he set for the meeting.' When questioned about staff members not being as friendly after she made her harassment complaint against Fawcett in 1988, she said that Dennis Wilson was not as friendly, Val Anderson did not offer her any food when she cooked up a big Junch for the staff, which was not a normal situation. Syd McNevin would not speak to he(. Ms Yudcovitch cross-examined next. The Grievor agreed that in April to August, 1985, lists of errors on AS5D's were Circulated and that some were consistently higher than others including herself. On August 9, Fawcett circulated a.memorandum (Exhibit 10) attaching a list of the error rate for individual employees and stating those who were running a consistently high rate Should seek some direction 'from Sandi Catdwell immediately. It showed the Grievor as having the highest. Tab 103, p 2 sl3owed her error rate acco¢ding to Caldw¢ for April - July. At that point, the Grievor wrote a memorandum to Caldwetl requesting a meeting to discuss where she was making AS5D errors (Tab 20). However, in testimony she could not remember whether her memorandum was a result of Fawcett's. Although there was an improvement in AuguSt for the Grievor, she could not say whether that was a result of Caldwell's monitoring. 'Her evaluation rema~rked on her improvement but she complained at her evaluation meeting that Caldwell's figu.res' 24 did not match her own. She told Caldwell that also. She had kept track of her own errors after June. Altlflough she had not thought so at the time, she now believed that Caldwell was deliberately recording more errors.on Fawcett's directions. With respect to the Stayner incident; she maintained her position that she was forthright with the ambulance crew. She did however admit that there was some doubt in Fawcett's view as to whether she had been forthright. He did write the September 20 letter' (Tab 31)' saying he would remove the letters from her file. This was after the Appraisal meeting. However, they were not removed from. the file. The G~ievor was asked why she did not grieve the letter of July 9, 1985 (Mr. C incident). She considered it unfair. It states that she dispatched the ambulance when in fact it was her co-worker who had dispat(~hed the vehicle. Her response to the absence of a grievance was that she did try to speak to Fawcett about it as she thought she could grieve it after it appeared in the Evaluation. However, she was told that the Collective Agreement time limits run from the time she became aware of the discipline. She did agree with Counsel that there was some inattention shown by her as set out in the July 9 letter. She also agreed that since there had been a complaint by Mrs. McBride, .it was not petty for Fawcett to took into the matter. With respect to the failure to rebook incident. (Mrs. K incident), She could-not thihk of any one else who had failed to rebook a call. Now being shown that she worked only to 4:30, she recalled that she did not rebook the ambulance.. Ms Yudcovitch then asked about the McKechnie incident. The Grievor insisted that it was a safety consideration that the dispatchers not be required to call up the stand-by crews since they are' too busy at the monitor. In this case, the job was McKechnie's obligation. Turning next to the Midland stand-by crew call-in ~ncident, Counsel for Fawcett asked the Grievor whether Fawcett might very wet] have concluded that the decision not to call in the Stand-by crew was a joint decision of Witson and the Grievor. The Grievor 25 agreed. Dennis WilSon got the same !etter, but she objects to. being "lumped with I~er partner". She did not gr!eve the letter although everyone agreed it was 'disciplinary. With respect to the 1985 Evaluation, she objected to Fawcett's ticking "Makes frequent errors" under the heading ACCURACY: is 'the correctness of work duties performed. Covers all phases - profession, policy, procedures, respo~nsibility. She felt it should have been: "Usually accurate; average number of mistakes". With respect to Alertness, in light of her work during the tornado, she felt she should have been marked above'average; and with r~spect to JUDGEMENT, she felt it should have' been marked "Exact & precise most of the time." With respect to interpersonal, skills, under Personality, Fawcett had marked "Questionable for this job"..Generally, she felt that it had not given credit for any of the good things. With respect to the early leaving incident, she stated that there was a recent memorandum on advising management when you were going to be away sick, but on the day in question, she was upset and forgot it. Although the 1987 EvaluatiOn (Tab 71) specifically recognized the Grievor's training of new employees, it was not on the'corporate file. In connection with the Aurora crew incident, the Grievor testified.that ambulance crews do not call back on COde l's. However, she did .agree that judging from the tone .of he~ voice, the ambulance crew might have thought she was being snippy. She said to Mississauga: "Sorry to involve you", because she felt the crew was acting up. They had ohly called Georgian once iqstead of twice wher~ they said "No response from Georgian at 05:15". At this point, both parties were angry at each other, ie. the Grievor and the Ambulance crew and she felt it was better not to broadcast more. She feltCarell was right ,, in keeping out of it. She testified that she might have been emotional about it. Her own recollection about it was that Carell was in the washroom. Ms Yudcovitch next turned to the-McKechnie incideni. The Grievor maintained that there was a safety factor 'in having MCKechnie. make the call to the stand:by crews. The 26 dispatchers should not be taken away from their work to do it. On January 2_7, 1987, the staff had written a memorandum .to Fawcett requesting that the PoSition that Georgian CACC call crews to upstaff and that it be made a role for the ambulance services to perform C'ab 63), it stated: A review of the ASB manual of policy and procedure would seem to indicate that the manager, assistant manager or a person designated within an ambulance service "are to ensure that adequate response levels are maintained during periods of personnel absences by instituting overtime scheduling as necessary". 1-37 pga However, she agreed that in the memorandum, staff had not 'spell out safety. In his letter of June 10, 1988 (Tab 85), Fawcett ·acknowledged: "Although outside of our normal practice, Mr. McNevin agreed to assist Mr. McKechnie and call in the CollingwoOd staff." In the GrJevor's opinion, it was against policy. She 'felt th·at McNevin was intimidated by McKechnie and did not want to get involved in a lot of paper work. She was correcting what he had done; previously in the Dennis Wilson incident she had been criticized for not doing it. The policies are set out at Tabs 67, 72 & 73. tn a February 3, 1987memorandum, (Tab 67), Fawcett wrote to Fred Rusk that the expansion of the centre and the associated increase in call volume and workload made the'arrrangement of , dispatchers looking after random callback unworkable. On September 14, he wrote all service managers that they would have to establish a Manager/designate system to provide upstaffing, in keeping·with Rusk's direction of Feb 3 and the Manual sec 13. On October 27, Dennis Wilson wrote to alt staff a memorandum identifying the various contacts at the ambulance services for random callback: in the case of Collingwood, it was McKechnie or MacAIpine (Tab 73). The Griev°r was asked whether the comments by Fawcett which she claimed he made were just comments and not intended to obtain sex from the female 'emplo~'·e.es. She replied that she did not know but felt he was testing the female employees as to their 27 attitude toward sex with him. She testified that he did not pester her for sex, or touch her or even tell dirty jokes in front of her. When asked if other employees told sexual jokes in front of her, she replied that people have respect for her opinions. She also testified that there were rumours that Fawcett was having.an affair with Sandi Catdwell, which she thinks may explain ali the memorandums to her from Caldwell. Janice Wilton testified on behalf of the Grievor. She worked there full-time from April, 1976, to April, 1985 at Georgian CACC and' then after maternity leave returned the~'e on part-time for the period March 1, 1986 to May, 1988. She is currently self employed doing work out of her own home in AnalySis and Planning for the Ambulance Service Branch. While Hambides was the manager and was away during the Pope's visit, she was the acting manager of Georgian CACC. She helped orientate Fawcett when he first arrived as manager. She did shift scheduling and generally informed him what was going on. She testified that in the fall of 1984, during a meeting with Fawcett about staff Fawcett made several inappropriate, suggestive comments about Wendy CaldWell. Her recoflecti~)n was that it was something to the effect that she was "easy", which Wilton understood in a sexual sense to the effect that if she were approached to go to bed, she would do so. Then on another occasion while she was at the console, he rubbed up against her. At a meeting in which she 'confronted him about the comments, he apologized and said he had not realized she was just a dispatcher; he thought she was a supe~isor. When confronted about rubbing up against her, he' denied it. But she was pleased with his apology over the ina, ppropriate comments. She then testified that there were several of the woman staff who discussed his remarks. Others had had remarks made by Fawcett. One of them, Wendy Caldwell seemed willing to pursue it. They made a verbal complaint to Rusk whose office was in the same bui)ding as Gborgian CACC. However, Rusk wanted something Jn writing and they t,hought he was moving too quickly on it. They decided to request the return of their 28 letters. Rusk returned the letters and they had a meeting with Fawcett. But Wendy did not go to the meeting. That was the end of . Wilton's involvement as she went on .maternity leave four months later. .: In cross-examination by Mary Quicl~, Wilton testified that Fawcett and Hambides had different management styles. She stated that Fawcett wrote more memorandums; Hambicles did not document things. Since when she returned to work part-time, her shift was nights, notes were the only way Fawcett could communicate with her. He made inappropriate comments on only the one occasion. When asked about the comment by Fawcett, Wilton was asked if it was during a discussion about Caldwell's work and whether she had personal problems. She testified that she did not know her but believed that she .had a troubled life and that t~e comment was in context. Wilton felt ~.oo embarrassed at the time to say anything to Fawcett. She did not think that his comment related to himself but was of a general nature. With respect to the brushing incident, she did not think it was ar~ accident. In cross-examination by Ms Yudcovitch, Wilton said she had never received any commendations for training, people and added that' for that reason people were refusing to train others. Diane Graham refused in 1984 to pursue the h~rassment issue. Wilton was of the view that Fawcett' was checking out the female employees in 1984 and that was why.he rubbed up against her. In re-examination, she testified that she did not have any recollection of receiving notes from Fawcett when she worked full-time. As a part- timer, she got notes about evei-y two or three weeks, more frequently if the co-worker was not good. Peter Carell currently operates an ambulance service in Uxbridge - Stouffville. Prior to September, 1988, he worked for the Georgian CACC as a Dispatcher and was there for five years. He worked with the Grievor as her partner for a year (1986-87}; on other occasions, he worked with her occasionally. H~ testified that when he worked with the 29 Grievor, on average a memorandum per shift Was received,'sometimes none other times, more. In a 14 day work cycle, that represents about. 182 memorandums. He recalls because, he says he is a pack-rat and he used to save them and keep them in his laundry room. When he left Georgian CACC, he threw them all out. When asked by Ms Quick in cross-examination about the memorandums, he said that they would relate to calls or incidents or interpretation of policies. He added that the four inch thick policy book has discrepancies. What was unusual was that a number of the memorandums called for the 'submission of incident reports on his colleague, and her actions with respect to calls. He considered these incidents routine. Some of them may have been prompted by outside letters but he did not receive those. It was personally annoying and he spoke to his supervisor al:lout it, The number of memorandums received 'when he worked with Diane Graham were minimal: about one a week. He did not specifically recall the '~oo .many pages incident", if after two pages,' there was no response the policy was to send out another one. Since in this incident according to the ASSDs, it was more than two minutes, he would expect a third page. He also testified that th..ey did have radio problems, bUt that would not be recorded in the AS5Ds. He agreed that the manager should look into any complaint such as that at Tab 45 from the ambulance attendant. .- Carell did remember the Aurora ambulance crew incident. 'He testified he could not add much to the Grievor's incident-report of March 25, 1988 (Tab 75). He testified'that he could have answered the crew when they called in but he did not know why they were calling Metro. He said it was about 10 seconds between the time when they cai{ed and when the Grievor came back out of the kitchen. It would have been difficult to have answereci them because there were three frequencies involved and it would have been difficult to figure out' which frequencies they were broadcasting on. In testimony, he I defended the Grievor's actions taken at the time. But when he recognized that the time 3O between book in and response was 12- 13 seconds, he admitted that they did take longer than he had s~,id to respond. He doubted that he left the console. Since there were monitors in the' ki.tchen, he agreed the Grievor could have got back, He said he decided to stay out of it. He said that it would have been poiite for the Grievor to respond. Neither he nor the Grievor was disciplined. He testified in response to Ms Yudcovitch's questions that it is possible the crew' in the Aurora incident may have thought that there were radio problems since they. did occur. He also agreed with her that Fawcett did write a, iot of memorandums, indeed whenever there was a problem. He also agreed that Syd McNevin and Rich Brown received a lot of memorandums. In re-examination, he said that McNevin and Brown received fewer memorandums than the Grievor. Brenda Cockburn was the administ~'ative secretary at Georgian CACC beginning in May 1985. She appeared as a Ministry witness to explain why ce.rtain documents had not been 'placed on the corporate file. She placed the Employee Appraisals in the employee files at' Georgian itself but had not forwarded them to Personnel to be placed on the corporate files. In 1988, she was advised by Personnel that they should be sent on for filing in the corporate files. She testified that she had not be advised of that earlier. She had never been advised by Fawcett either to send them on or to not send them on. She said t'nat she had not, heard Fawcett say anything inappropriate or do anything. inappropriate. She testified that Syd McNevin had said that he would rather have another partner than the Grievor, She testified that Mrs. Courtenay's personnel file at Georgian was one of the thicker files. But the largest was that of Peter Carell, who had two files. There were inappropriate sexual commen, ts made by ambulance attendants and dispatchers, She said she tolerated it. John Callas is the Regional Personnel Administrator for the Ministry of Health and' is located in Penetang. Georgian CACC is one of his responsibilities as such. As a result of'his participation in the second stage grievance step and the request of the chair of that meeting, he travelled to Barrie and looked at some of the files in that office on employees: ( specifically, those of the Grievor, Syd McNevin and Peter carell. They had alt started with the Ministry around the same time. He testified that the Courtenay and McNevin files were about the same size, but the Carell file was about twice the size of the others. They were all similar, containing appraisals, interoffice memorandums and a "dog's breakfast" of correspondence. When he went back to Penetang, he checked all the personnel files for Georgian CACC employees and none of them had any appraisals in them since 1985. He then called Fawcett who did not know anything about it, but spoke to. his secretary and got back on the telephone and said she did not know she was supposed to send them on to Personnel. He was asked bY Ms Yudcovitch a~bout the function .of ihe administrative fi~es at Georgian CACC. He thought they were probably kept there as a day-to-day record. It was possible they might be relied on in case of discipline, commendation or promotion, If however there was a promotion outside that particular office, the chair of the select panel would use the corporate file. He testified that they have not educated the managers on the sexual harassment policy, but it is a very simple policy and Jt is in the manager's policy manual. Sydney McNevin b?., gan working with Georgian cACC in 1983 ,on a part-time basis and became full-time in 1985. As a part-time worker, he worked shifts and sometimes was working with the Grievor. He said they Were different types of workerS: the Grievor went by the book. He did notice that she seemed to get more paper work. She was always into questions of interpretation and writing something or other. The witness said that he himself tended to write less than most dispatchers. He had no recollection of Fawcett's ever making a sexual comment to any of the female staff. He had no recall of a joke by Fawcett about the Grievor's tan. He also had. no recall of telling Fawcett that he did not want to work .with the Grievor prior to the filing of the grievance. 32 McNevin testified that he did not comment that .the Grievor was difficult to work with; however, there could be better rapport because of the differences in the way the job was done by them. With respect to the McKechnie incident after listening to the tape at the hearing, he testified that he knew the policy. But he felt at the time that there were no odds in terms of calling the two attendants himself because of the time .factor. He did not want to get into an argument and he felt comfortable calling the attendants himself. So far as McKechnie was concerned, he does not refer to him as a friend but considered him a colleague in the same line. Although he could not comment whether McKechnie wrote many letters and memora, ndUms to Georgian CACC, he did feel that if he said he was going to write, he would folloW through on it. Although it did happen that one dispatcher .would intervene in something' done by another dispatcher, he felt in an emergency the work should get done first and then if a disagreement, the next Step be taken. He still feft'satisfied with what he had done because of the possibilities of delay, · He said that he was one Of the worst for joking around;'it is his way of relieving the tension. He testified in reply.to Ms Ursel's question that it was not the place to get into an argument with Jack McKechnie. He agreed however that it would have been faster for McKechnie to.call his own staff. When asked to go thrOught the routine of upstaffing, it became clear that he could have gotten tied up as much or more in doing that as he would have if he had gotten into a dispute with McKechnie over making the calls himself - as the Grievor did. He hb.s no recollection of writing an incident report on the matter. With respect to the tan comments by Fawcett, he testified that he was not present when that incident occurred. He had heard stories in a group of people: there were some comments about a bikini line. Dennis Wilson*~ has been the shift supervisor at. Georgian CACC'since the'spring of 1988. He Was a dispatcher before that. He started in spring of 1985 and had been This witne§s is not related to the Chairman of this panel. 33 part-time with Wasaga Beach Ambulance-service from 1974-86. He h~d been a partner with the Grievor on about ten shifts. When.asked whether he had ever indicated to Fawcett tl~at he did not want to work with the Grievor, he said he had told Caldwelt when there was a possibility that a permanent partnership might be instituted that he would prefer t° be a partner .with Graham'. He testified that he did not refuse to work with the Grievor. When asked how he found the Grievor to work with, he replied that she was officious; to the letter of the policy and that he was never comfortable with her. He found · her rigid as oppo,sed to flexible. He added that since he had worked with ambulance crews for a number of years, he tended to-sympathize with them. He considered Fawcett capable with a dry personality and a dry sense of humour. He tended to generate his sh~tre of paperwork. Wilson recorded from the office tapes the transmissions on the events surrounding the McKechnie incident and als0 the tape on the Aurora ambulance crew incident ("No response from Georgian"). He testified asto their accuracy. He was then asked about the drowning child incident, i.e.. the Midland standby incident of August 5, 1985. His recollection was that neither he nor the Grievor.realized that they had sent a crew outside the call-in area. Further his recollection Was that once they did remember, the crew was already back in the area. They knew that the ambulance was in service to the hospital in the area and could respond before Georgian could provide another crew. He testified that it was their' decision - his and the Grievor's, not to call in a stand-by crew. He also answered that the senior dispatcher does not make the decision and that in fact in terms of years of service, the Grievor had more service than him prior to March. He made out an incident report (Exhibit 13). Exhibit 13 was mane because there was an incident, By .., way of summary, he wrote: 'As a dispatcher, I feel now, that I should have called in the standby crew. However, as soon as 329 was back in their area, I believed coverage to be, adequate. The delay in response by 329 was 8 minutes. A crew at base could ) 34 have responded in 1-2 minutes,. He. believes the discipline letter received by the Grievor was the same as the one he 'received. With respect to a memorandum of March 25, 1988 to the Grievor and Pete Carell about lack of notification of appropriate CACC's of Long Distance Transfers, he testified that it was just s routine type of memo and was.not done by him at Fawcett's direction. Wilson testified with respect to the "tan" incident in mid-November that he was there but his recollection was vague. 'He recalled that it had something to do .with the Grievor's second or third trip to Florida and there was some comment about tan lines. He did not believe that he reacted at the time. He denied that it made him uncomfortable. He had no recollection of any. rumours that ' Fawcett was pursuing one of the women at Metcom when he was assigned there. He also recalled when asked by Ms Yudcovitch whether there was an attempt to reduce the number of errors with dispatchers. He Said that the request came from OASIS (Central Recording OffiCe for AS5D's). The number' of errors were Posted on a clip board on the top of the console. He said since he was new there, he usually topped the lists and Was interviewed by Caldwell about it. As a consequence his error rate improved. In ' September, 1,987, Wilson became Acting Supervisor; it was done by memorandum. · Fawcett told him 'that he wanted to be kept informed and that any problems would be short circuited before they became complicated. With respect to the tan incident, he had no recollection of the room becoming suddenly silent when the comment was made. His recollection was that Fawcett was on his way out the door. He did not himself f~ave 'a reaction that it was degrading to women. He further testified that the comment about Fawcett and Caldwelt having an affair was made in jest and that he was part of it himsetf (i.e. Wilson). There was no serious' belief among the staff that' they were actually having an affair. With. respect to getting someone to actually make a call to the Regional Office .. 35 tO see whether Caldwell was thereat the time that Fawcett was out of the office, was not intended to be serious; nor was it seriously intended that the Grievor should place such a call. So far..as lear. lng the Grievor out of things once she filed the harassment grievance, he testified that she did not work after June, 1988. He said that there was talk among the male dispatchers that they wanted a third person if they worked with her. He was not aware of any attempt to leave the Grievor out of a BBQ. In cross-examin'ation by Ms Ursef, Wilson testified that the Grievor knew he had ambulance attendance background since she had dispatched when he was an ambulance attendant. His recollection was that the Grievor was working as a Go-Tamp dispatcher at the time he was hired as a permanent dispatcher. In reference to the Midland stand-by incident, he testified that he believes he was the one who dispatched the ambulance out of the area in the first place. With respect to Tab 103-15, he testified that this type of' memo goes out three or four times a week. When asked whether when he was supervising, he ever received any special instructions from Fawcett with respect to any incidents, he said: "Not that I k~ow of". When the Grievor filed the current grievance, the male dispatchers'who did not want to work alone with her were: Wilson himself, McNevin, Wood and Monkman. 'Others were possibly, Carell and Paul Reid. Fred Rusk is currently the Regional.Manager and has been such for seven and a half years. The area stretches from Trenton in the east to Parry Sound in the west, and from Metro up to Algonquin. In November, 1984, the Grievor and two other women (Wilton and Caldwell) came to see him with concerns about Bill Fawcett. The gist of their complaints was that Fawcett was making' unwanted advances: winking and gawking~6 at' them in an unwelcome manner. The Grievor mentioned that Fawcett had invited her back to his hotel room for training. Mrs. Wilton had complained that he had rubbed up .! against her in the hallway and Mrs. Caldwell had said that he had come after hours while The word is Rusk's own Word used in testimony. 36 she was working. They had given him something in writing. He was able to identify Tab 1 Which was the Grievor's written statement dated November 10, 1'984. At the second meeting with the women, he returned their letters as they requested. He gave them a copy of the government policy and indicated that he would speak 'to Fawcett with the accusations. Wendy Catdwett withdrew her complaint before the second meeting. At the second meeting when Fawcett was confronted with the. letters from the Grievor and Wilton, he said he was surprised and that it was not true. With respect to the invitation to go to his hotel room, he said that was a barefaced lie. A tense discussion ensued but it remained civilized. Fawcett said it was not true but if he was intervening into their space, he wanted to apologize. Mrs. Wilton became conciliatory near the end and the Grievor was satisfied to the ex[entof what the women had wanted to do and asked for the letter back: that was the end of the matter. At some point either then or later, FaWcett explained that he had a twitch. Fawcett also explained to the two women that the reason he had mentioned the hotel'was because the only place available was at the hotel or the motel for the CPR. Afterwards Rusk and the Assistant Regional Manager met with Fawcett. He explained that he had come into the office after hours Which was not unusual fo~' a new' manager and since, there was not much to do in Barrie, it was an opportunity to meet the staff. The next time that Rusk,had any involvemer~t was in April, 1988, when the Grievor telephoned him and made an appointment to see him on what she referred to as a personal matter. At the meeting, she said that she had come to him because the previous time, he had acted promptly and fairly. She ssid that etlthough she had been satisfied in 1984, since then there had been a pattern of harassment. He gave her a copy of the policy and suggested that she speak to the regional union representative. He advised her not to confide in the local union "guy". He pointed out that she might also go to the OHRC. He testified that he did not have much experience in these matters. Because it 37 was a complex matter involving a reprisal type of thing, he wanted he[ to put it in writing. They scheduled 'another meeting for five or six days ahead. She-indicated she wanted to see her personal file at the Dispatch Centre and the corporate file at Penetang. Rusk arranged to have the corporate file sent down to him from Penetang'. On April 18, 1988, the Grievor wrote a letter to Rusk making a complaint against Fawcett. When the corporate file arrived, Rusk'reviewed it. He also got the personal fiJe from the Dispatch office and allowed the Grievor to review the two files. He told her that he could'not see any unusual pattern in the file. At the initial meeting, he had explained to her that it was a serious matter and referred to a.rape case where the woman was asked a Iot of questions..He testified that he did not try to dissuade her; he felt it was his obligation to stand beside her. She cancelled a further meeting saying that the Union. had advised her not to discuss it further since thoro'would be a grievance. Originally he was going to hear the matter as a Deputy Minister's designate, but the Union called him and told. I~im that was not going to go forward. The next matter was the One of absenteeism. In August, 1988, Rusk was notified that the Grievor .had not been at work for some time. He testified that .in such cases, it is not unusual for the Regional Manager and Personnel to call the employee in for a meeting to ask how long the employee is going to be away. Rusk telephoned Fawcett s-everal times to see that the meeting would be while she was at work. He testified that there was a note sa~ying She would be back but it did not happen. Finally, he sent out a letter to her to discuss her sick time with him. He testified that he now knows that she was still in fact off work, but at the time it was not his intention to force her to come in to ~explain why she was off work. When the meeting did take place in September, 1988, a doctor's note was submitted to explain her absence (Tab 91). They explained 'that it was because of the harassment matter with Fawcett. He then discussed the matter with the Personnel Manager and they decided not to pursue the~absenteeism issue: they did not want to muddy the waters. Rusk was cross-examined extensively by Union Counsel and as a r;esult a procedural ruling had to be made about the' order and extent of examination by the various parties: see Appendix A. Rusk as a manager had never had a sexual harassment complaint prior to the Courtenay complaint in November, 1984. He did have two others after that date but before the 1988 grievance. He sought advice at the time from various Ministry staff and was told to make the policy clear and advise the complainants of their various options. Also' he was advised to make the person against whom the complaint was lodged aware of it, With respect to the accusation of brushing up against. Wilton, Fawcett told him that-since it is a small place it is possible it could have happened to anyone. Rusk also remembered speaking to other staff people at the office such as Kathy Vandrea, one of the secretaries. He had no recollections of-Janice Wilton mentioning suggestive remarks by Fawcett. Caldwell came to his office and told him.that this was not what she had expected this to turn out to .be and he gave the Ietter back to her. His recollection was that this happened after the first meeting and after he spoke to Fawcett about it. After the Grievor came to see Rusk in 1988 about her allegations of continued harassment, he spoke to Fawcett about it. Fawcett said it was nonsense. His recollection was that he read him the letter. He told Rusk that this time he was going to get himself a lawyer. Rusk told him that he would be requestincj to see both the personal file at CACC and the corporate file. Rusk did not see his role as one of a mediator between Fawcett and the Grievor; rather, he saw his role as one of bringing out all the facts, tailing Mrs. Courtenay all her options and to be Sure no one thought.they were being treated unfairly. Since the 1984 episode, Rusk had handled two sexual harassment cases, but they were completely different from the Grievor's complaint. He testified that when she looked at the files, she asked him if he could see the pattern of harassment; he replied no but as he testified, it was "a quick see." He admitted that it was a fair assumption that Fawcett in.asking him to tetl the Grievor that he was going to get a lawyer was intending to make her think twice about going ahead with her comp!aint. He himself considered the complaint serious and wanted the Grievor to think about all that was involved in it and to consult with the right people. He recommended that she go to Nell Powell, the Union Regional representative, because he was more experienced than. Peter Care)l. Furthermore, he'fett that carell would just .run'in to see him and he would get caught between the local and the Manager. He did not hear anything more after' he was advised by the Union that the internal process was not to be foilowed until the grievance was filed on September 1. With respect to the absenteeism issue, he explained .that he did not consider the June 29, 1988,. note from Dr. Haig appropriate because it did not tell him What the problem was and it should have said when she was returning, to work. He was not aware that as a result of Fawcett's letter to her on July 14 (Tab 87), the Grievor c~[ted Dennis Wilson and told him she was off due to work related stress. He testified that it would be standard for him to meet with an employee over absenteeism and she had been off a great deal 'lately. When he met with Fawcett prior to his letter about absenteeism, he told Fawcett that he did not .want this mixed in with her harassment complaint. When he got the September 8, 1992, letter, he felt it 'was not enough: he testified that he did not know what stress related to. When' he asked her at the meeting, he was told that it was none of his business and' he already knew. Then he knew that it related to the harassment issue. He left it with her that she should let him know whether he could.offer her some other employment. He did not consider it an option that he move Fawcett from Georgian CACC so that'she could retum to work. At the time of the 1984 complaint, he did not understand that he was to keep the file: it was destroyed after the matter ended. Once agrievance was filed in 1988, the 40 complaint was out of his I~ands. At this point in the hearing, Ms Yudcovitch pointed out that there was now. a difference in interest between the Ministry and her client (See: Appendix A). In re-examination by Ms Quick, Rusk said that in 1984, the parties were content to put the matter behind them and that no record, of the meeting be kept. The Ministry called Sandi Caldwell as a witness. She had worked with .Georgian dispatch from 1977. She became full-time in 1978 and by 1985 was the senior dispatcher. In August, 1986, she became the acting supervisor and in 1987 the SuPervisor. Later she became a part-time dispa!cher. Shortly after Fawcett became the Manager in 1984, she overheard a conversation between Jan Wilton and the Grievor in the lunchroom during the evening shift. She was in the dispatch room at the time. They were discussing his management style. They said they'were not finding him easy to get along with. She heard WiCton say something to the effect that they should try to get rid of Fawcett. She did not hear the Grievor's response to that. She testified that the reason she did not attend the 1984 meeting between Rusk and the Grievor and Wilton was that she had' no just cause to attend the meeting. She did not feel that Fawcett had done any of the things she had heard about. That evening, Rusk came to the dispatch room to speak to her. She told him that she had no reason to believe that Fawcett had sexually harassed her. He said that he hoped they would take it seriously and would be going to Windsor to speak'to Fawcett about it. He told her to advise Diane Graham that he would be .talking to her about it. When the witness later heard from one of the secretaries, she was given the reason she had not pursued-because she was taking a leave of absence, She immediately went to see Rusk to explain that the only reason she' Was not pursuin'g it was that she had no grounds for complaint. He said the matter had been resolved, The witness was next questioned about her monitoring of the AS5D forms in 1985. At the end of March/April t985, OASIS sent reports to them showing error rate across the province; Georgian CACC had a high rate. Fawcett asked her to review the forms and 41 correct them herself. After discussing it with him, she said that she thought it would be better if the staff did its own corrections. She made a list of each employee and number ' of errors made each month. The Centre's accuracy rate was about 65% as compared with 90 - 95% for the rest of the province. She produced her records for April, May, June, July and Augusi, 1985 (Exhibits I?A - 17E), The reason for reviewing the error rate on the forms was to improve it. For April, she felt that since the Grievor had been there for a while, her rate seemed high. By May, the Grievor's rate I~ad become acceptable. June results however showed her again as one to be concerned about, Wil,.son, Reed and Proshaka were high in error rates. She had some concern in July for the G~'ievor's score. in Jur~e, the staff' were given the task of correcting .their own forms. She testified that Fawcett did not direct her with respect to any particular individual's errors. He di.d not do any of the correcting himself. At the GrieVor's request, Sandi Caldwell and the Grievor met to discuss the error rate. Caldwetl testified that she reviewed it with her and most of her errors were the same recurring type. She expected to see a drop in the rate as a result. She had no real recollection of the Grievor disagreeing over the numbers of errors. She also had no recollection of any one being disciplined over errors on these forms. Sandi Caldwell testified that the pre-alert forms were used on Code 3 and 4 caJJs. In 1985 when they were first introduced, they had to be prepared on the night shift on 'which the. Grievor worked, She received complaints from the day shift that they were not being done. She mentioned it to Fawcett, who then wrote memorandums to the Grievor about it (Tabs 22 & 23). The Grievor wrote back that there was already an ample. Supply and could hardly fit any more in the box. Caldwell 'also received complaints from other staff about working with the Grievor: namely, Diane Graham, Rich Brown, Syd McNevin and Dennis Wilson. The complaints were basically that, with the Grievor, it had to be her way or not at all. She passed these comments on to Fawcett. .. On the day of the early leaving incident which was the subject matter of the August 42 30, 1985, letter, Coldwell was working at the supervisor's desk. The Grievor came out of a meeting with Fawcett and asked her if she could work for her that afternoon. Coldwell testified that .that she replied no because she and her husband had plans to take a half day vacation that day. About 20 minutes later, the Grievor asked her to sit at the dispatch., board. The Grievor then made a telephone.call, went to locker room and got her coat and left. Coldwell then asked Diane Graham where the Grievor had gone and G~aham replied that she thought-maybe she had gone to the. Dairy Queen next door. When Fawcett returned from lunch, Coldwell advised him that they did not know where the Grievor had' gone. Coldwell had to sit at the board until the end of the shift (four and a half hours). According to COldwell the procedure in a situation where the employee is ill is to report it to the supervisor or to Fawcett. If neither is available, the.employee is to locate someone to replace her. The Grievor never gave Coldwell any explanation, for what happened. · When the Gdevor became a full-time employee, Caidwetl had a discussion with Fawcett about the Grievor's teaching new staff. She was considered for that because she had a good grounding in the mechanics of the job and was sound on policy. Both Fawcett and Coldwell thought that such Would be a good st'art for new employees. The Grievor indicated an interest in doing so. She did most of the training of new employees. With respect to the Bradford upstaffing incident in May 1986, Caldwell explained that her query "Why" on the ASSD written up by the Grievor was just curiosity in the event the manager.from that service called up, she would be able to give an explanation. 'Although it would be a common standby but normally did not send a crew out for standby unless there is a reason. The Grievor gave her reply at the bottom of Fawcett's memorandum (Tab 47). There had been no criticism intended and the reply given by the Grievor had been accepable. The other items relating to the fall of 1986 were as testified to by Coldwell apparently routine type memorandums on filling Out AS5D and other office 43 matters such as training new emPloyees, With respect to the Barde ambulance overtime incident in May 1987, Caldwell testified that the new poticy manual states that a crew has to be asked if they wish to stay over. They cannot Otherwise be held over unless there is a call waiting for them. The 08:00 a.m. to 15:30 crew should have been sent to Toronto rather than the standby at Hwy. 11 & 7th cone. 'of Oro. Caldwell testified that her Memorandum to the Grievor at Tab 103-12 was accurate. Her recollection was that the tape showed that the crew said to the Grievor that they would be talking to their manager about it.' Caldwell further testified that it would be normal for Fawcett to bring it to her attention and ask her to speak to. staff to' review it; In examination bY Fawcett's Counsel, Caldwell testified that she had observed that Fawcett had a twitch. It happened more frequently when he Was meeting w. ith people in unsure circumstances. It was .particularly noticeable in 1984 when he was first meeting with. staff for the first time in an unfamiliar set of circumstances. She further stated' that the Grievor on night shifts did not all the time keep up the system of cleaning UP such as dishes and the sink. Some others talked about it. She was involved with the McBride complaint. She did'not consider Fawcett's memorandum of July 9, 1985 with respect to it an overreaction..Caldwell explained her reason for writing a note to the Grievor to individually stamp each AS5D with the caller's name (Tab 19). She also denied that she had done so on any one's instructions. She had done so with other dispatchers. She also denied that she socialized with' Fawcett. She also testified that she never heard him speak in any sexual way about or to any co-workers. She had heard others in the Centre swear, tell dirty jokes and stories with sexual overtones. in cross-examination, the method used for estimating the error rate in the 1985 OASIS review of AS5Ds was covered extensively. Caldwell was also cross-examined on a number of memorandums that went to.the Grievor.~7 These documents related mostly to the filling out of AS5Ds. With respect to the Barrie ambulance crew overtime incident, Oaldwell testified that she was aware of the BarrJe ambulance crew's own policy but said that so far as Georgian CACO was concerned, it was up to the dispatcher to send the most appropriate crew. She had no recollection of the Grievor's ever telling her that she was not aware that the day crew did not want to stay overtime. She testified that neither she nor Diane Graham thought that Fawcett Would have asked the Grievor back to his hotel room and chuckled over the Grievor's interpretation of what Fawcett had said to her. With respect to the early leaving incident, Caldwell testified that when the Grievor told heJ' she had to leave, it was to get her lunch. When questioned'about the incident in August 1985 when the Grievor and Wilson failed to call in the Midland Standby crew, that it was a much more serious matter than reflected in the written reprimand. She stated.that she had seen such a situation where a three day suspension had been handed out in pre- Ministry days. In re-examination by Ms Yudcovitch, the witness stated that if the Grievor had told her in the early leaving incident that she was ilf, she would have told her to tell Fawcett and she would have looked for a replacement. Valerie Anderson works with Georgian CACC as a radio operator and three months before the hearing had become a R.O.3 which is supervisory. She testified that she had brought in a chicken to be barbecued by Dennis Wilson at the office in 1988, She said to the others in the room', Sandi, Dennis and the Grievor that if any one wanted any chicken to just help themselves. Later she was asked by the Grievor why she had been left out and then the witness realized that the Grievor had not heard her. She told the Grievor that and. she accepted the explanation. She further testified that it was not uncommon to have office meetings outside of the office, she was asked 'about following policies. She felt you had to use judgment and everyone was not familiar with the rules. ~' Exhibit 3, Tabs 43, 94, 42, 56, 61, 62, 68 ~n the McKechnie incident, she felt she Was safe in departing from policy (she was one of ~he afternoon shift personnel) because she had names to call. William Fawcett is married with three children. Prior to becoming the Manager of Georgian CACC in October, 1984, he was the Assistant Regional Manager !a Region 1 " (London). He testified that the reason he left his position at London to go to Barrie was that he did not fee~ comfortable thei-e since his. management style did not mesh with that , of his' Superior. In fact, he and Hamibides arranged to switch positions. For Fawcett, the switch meant less money. Traditionally, ~e managers at dispatch centres have come up through the ranks and are therefore familiar with operations at the consofe. Fawcett did · not have this background and except for a few occasions has not exercised dispatch control, itself., His system for maintaining Personnel files is that when an employee is hired, a file is created in the Centre's own office and it contains such things as documents filled out on hiring, certificates licences etc. and copies of day-to-day correspondence between himself and the employee and between supervisors and the employee and the evaluations. He said he was not sure what went into the corporate personnel file. He had no recollection of ever putting a letter of commendation for training efforts on anyone's corporate~ file. He confirmed Cockburn's. testimony that he had not told her when she became his secretary to forward the empl~)yees' appraisals to Penetang to be placed on the corporate files. His style is to wr, ite a lot of memorandums for a number of reasons. Staff are on shift work arid as a result he may not see a particutar employee for weeks or'even months. He also likes to document occurrences and incidents. He explained that he did that on all employees and did not believe there were more with respect to the Grievor. He denied that he ever attempted to harass any one with memorandums or harass the Grievor at all. When he took up the position of Manager at the Centre, he was told by the ? Assistant Regional Manager that there had been a kind of absentee management and since they did not know exactly what was going on there, he should familiarize himself with the situation. So he wer~t in one evenirig about 6:00 p.m. The Grievor was on duty. His recollection was that he asked her how long she had been working there; she was part-time.at the time. He asked her what she had done before becoming a disPatcher. His recollection was that she said she had been in training to be a nurse. He denied in testimony that he said to her that nurses are generally friendly. He told her that it was a difficult profession as he had some involvement with nursing as part of the ambulance emergency care progra, m. His recollection was that the conversation was a friendly chatty type of conversation. , Later there was a discussion with 'the Grievor over a CPR course. It may have been at the time of the dJscussion over staff meeting, She said something about not having her First Aid Certificate or CPR certificate or it was about to expire. Fawcett knew that Fred Laurin with the MidLand Ambulance Service was an instructor trainer and could provide a course, Fawcett denied that he said anything about a PriVate course, but he could have said something about Fred doing a COurse for one person. He did not know' Laurin personally at, the time. He denied that he was suggesting that anything sexual could occur between the Grievor and Laurin. He denied that he ever said to the Grievor that he tiked a slim woman Or that he said to her that she looked.so young at times and' worldly at others. He had only a recollection of going in one evening while the (2rievor was on duty. His recollection is that he sat in one of the empty chairs. He also had no recollection of brushing up against Wilton and never did so intentionallY. fall of 1984, Rusk told him that there were two staff members comple~ir~ing about harassment. At the meeting with Rusk and the two complainants (the Grievor and Wilton), he learned that Wilton was complaining that he had brushed up against him and that it made her uncomfortable, The Grievor complained that he had asked her back to his hotel 47 room and winked at her. He testified that he denied doing that. He went on to say that if he had said or done anything that created that impression, he was sorry. In testimony, he denied that he had ever invited her back to his hotel room. He denied that he had ever "made a pass at her." He did not believe that he had treated either Wilton or the' Grievor any differently from any one other employees after that meeting. Two opportunities for the Grievor to become a permanent employee. (i.e. classified staff) occurred at that time. She was unsuccessful in the first competition. She asked him if she could come to. his office to discuss it. She was concerned that she had not been successful and wondered how well she had done and how she could improve. Fawcett had been the chair of the panel on the competition. He went through it in broad terms with her and pointed out where she had n~)t been strong. She seemed satisfied with his answers. She was successful in the next competition. He was on the panel and had agreed with its decision. Tab 2 was a letter dated June 6, i985 sent to the Grievor by Fawcett thanking her for: " the fine job you did the night of the disaster. It must have been a difficult time for . you knowing that the tornado' had touched down in your neighbourhood. FaWcett produced .copies of the same letter sent to Syd McNevin, Pete Carell, and Diane Graham, and a similar letter to Sandi Caldwell, also thanking her for hot assistance with the paperwork, and a letter to Richard Brown who had dispatched for MissJssauga Centre and.who did it for the Grand Valley. These letters went into the local files. He did not know whether any of them went to the corporate files. Fawcett next turned in testimony to a number of documents which the Grievor had picked out as evidence of his harassment campaign against her. One of these (Tab 3) was a memorandum dated June 1'7, 1985 to the Grievor and related to making more specific notations on AS5D forms. He could not specifically remember the document but said it was typical of what he wrote to employees and denied that there was any ulterior motive, in sending it to the Grievor. The next set of documents (Tabs 4, 5, 6 & 31) deal 48 '- with the Stayner Medical Centre incident. Fawcett's source of information was tl~e incident report (Tab 4). He realized that the crew .would have to pass through Stayner on its way to Collingwood House. On June 20, he reviewed the tape. He got a complainl: from the crew so he wrote a memorandum to the Grievor (Tab 6). His concern from listening to the tape was that the impression had been left with the crew by the Grievor that she was going to call Stayner Medical Centre, did not do so and then advised them that Collingwood was the closest hospital. He said she should have told them she was not going to calt Stayner and then directed them to .Collingwood Hospital. He testified that his memorandum to her was not' disciPlinary; it was information and direction. On September 20, as we have seen he wrote to her that he would remove the letter from her file. He testified that they Sl~oke to each other abo~Jt it twice and although he could not remember what her explanation was, he was satisfied at the time with it. He did not think the letter was Still in the local file.'. The next incident was the Mr. C incident. In this instance Mrs. McBride of Homecare complained to Fawcett about the fact that the 'patient had been picked up before it was confirmed that there was a bed available at sunnybrook and then had to be taken back home. The patient died the next day and there was some suggestion that his death may have been caused by the mix-up. Fawcett said that the latter aspect of the incident was never pursued. He further pointed out that he had a responsibility, to investigate any complaints from hospitals or health care workers. He considered it a sufficiently serious matter to bring to her attention. And there were two incidents on the same day, the other being the Mrs. K incident. The Grievor was not disciplined for it and he had no recollection of her ever complaining about his letter (merflorand~m of July 9) to her on these two incidents. With respect to his comment in the memorandum: "I must agree with you that these incidents show an inattention to the 'job resulting in inconvenience to the patient.", he testified that he met with her and that she indicated that there Was perhaps some inattention and would do better next time. Fawcett testified that the request for an incident report for the Midland standby Crew incident arose from the receipt of a complaint' and there was a mortality. He wrote asking for an incident report from Wilson and the Grievor. On August 13, Fawcett wrote a Memorandum to Fred Rusk on the incident. ~t set out that a doctor had complained to Fawcett about the delay of the ambulance crew which had told him that Georgian CACC "screwed the call up". However, the doctor did not think that the delay had any effect on the patient.. Fawcett assured the doctor that he was reviewing the matter. Fawcett gave · a disciplinary letter to both Wilson and the Grievor. He testified that he believed on reviewing the incident reports that they were both involved in the decision making in not calling in the back-up vehicle, fn their reports, they both acknowledged the problem. When the last vehicle had been utilized in Midland outside.call-in boundaries, they should have upstaffed the Midland ambulance to' man another ambulance to provide coverage. On September 24, 1985, Syd McNevin made a similar type of error and was given a similar type of letter. Fawcett wanted to improve the error rate on AS5Ds when he learned from OASIS that Georgian was Iow on the list. He spoke to Sandi Caldwell to devise a.mechanism for correcting forms and giving feed back to staff. She was to look at all the forms, make a note of errors and meet with staff to improve them. He never gave her any instructions to inspect anyone more than anyone else: The reference to "makes frequent errors" in the Grievor's August 1985 Evaluation was based on the results from the AS5D forms. He considered that to be fair. He credited her with "usually accurate" in judgment on the Evaluation. He explained at the hearing that, although there had been a few situations where her judgment had been in question, given the number of decisions that a dispatcher has to make, he felt her judgment was usuafly accurate. With respect to personality which he had marked originafly as 5O questionable, his recollection was that he had discussed it with her and he moved it to Satisfactory for this job. Although there had been some involvement with other staff and ambulance crews, ambulance people can be difficult at times so'he decided that average was fair given the amount of time she had.worked, Under commen,ts, he wrote: "appears to have difficu~ getting along and fitting in with fellow emploYees." Fawcett testified that the reasons he had .written this were based on his personal' observations, from what employees had told him and also from employees who wanted to work with someone else than the Grievor and finally, from comments from the field i.e, from ambulance people. Dennis Wilson had said he preferred to work with someone else and Diane Graham complained that the Grievor had not been keeping the kitchen clean. Ambulance people had complained about abruptness on tl~e air and tack of cooperation. He felt his comments on the Appraisal were fair. Her November, 1985, Evaluation showed real improvement. His testimony with respect to the 'early leaving incident was that when· he telephoned her to find out why she had left, she told him shb was sick. But no .one had any. indication when she' left that she was sick. Of course, you cannot just leave. If someone becomes ill and there are no management staff 'there, that person has to arrange to call someone in. He produced a letter to McNevin dealing with shift changes or leaving which set out the practice. Tab 40 was a memorandum dated December 30, 1985, from Fawcett to thd Grievor and Pete Carell On two matters: the one relating to the Grievor was why ambulance was not sent to standby at 12:53 to Essa and Burton. Carell's matter related to a question of a choice of vehicles. Both the Grievor and Carell wrote responses for their respective items.' Fawcett testified that neither Carell nor the Grievor objected to his inquiry at the time. The Grievor had identified this as one of the harassing incidents. Fawcett said these were routine inquiries-often prompted by questioning by ambulance ( 51 supervisors. Another incident she identified as harassment as we have seen, occurred when two ambulance attendants wrote reports complaining about multiple pages. FawCett testified that he sent a copy of the policy to the Grievor because paging of ambulance crews is a fairly important aspect of the job: he wanted to be sure she was familiar with the procedure. Fawcett testified with respect to the.. Flmgrove trailer Park incident that he had mentioned in his memorandum (Tab 93) the problem that the ambulance crew had finding the trai)er park because he wou~d have expected some reference to that in the ASSD form as well as the other name for the trailer Park. With respect to the Bradford u. pstaffing incident, he was unable t'o identify 'the. handWriting of the word "why?" on the AS5D (Tab 43)? He did not tell anyone to write that. On May 9, he wrote to the Grievor to inquire why Bradford was upstaffecl for this i" standby. His recollection is that the supervisor, Sandi Caldwell, had brought this matter to his attention. The Grievor wrote an explanation on his memorandum. He and Caldweli thought it was unusual to send Bradford on the standby and that is why an.explanation had been requested. Nothing further was done on it: he assumes he got the Grievo~'s written explanation. In his view there was nothing unusual about the whole thing. Nor did he have any recollection of the Grievor's ever coming to him about it. The August 1986 Employee Evaluation ranked the Gr'ievor "Definitely above average" as the overall evaluation. Because of a change in the secretaries, no one's Evaluation was sent on to corporate files at P.enetang. When this grievance was filed, the omission was discovered and corrected. " His account of the tan incident was as follows: he could r~ot remember the year or month of the incident. However, he did remember making a comment. About 3 o'clock in the afternoon, he went into the dispatch room. He was looking for a supervisor. The Grievor was at the console with Diane Graham sitting on the left side of the console. ~" Sandi Caldwell testified that she wrote it. 52 Fawcett states that he Was in a rush at the time as he was just about to leave. Graham said to him: "Aren't you going to welcome Trish back for her holidays"?. Look at the wonderful tan she has. She looks just like one of the natives." Then Fawcett said: "it isn't the tan, it is the white spots that count." At that point, he left either havir~g found the supervisor or not found the supervisor. Dennis Wilson was there and was probably the supervisor, he was lookir~g for. There was a fourth person present but he could not remember who. At the hearing, he denied that he made the comment to embarrass the Grievor. He never heard anything from the GrJevor about ii. He claimed that it was an expression he picked up from his Aunt Mary who would say it when he came back from vacationing in Bermuda. He has never made any comments about her body since then. -On May 2, 1987, the Grievor wrote an incident report as a result of a complaint from Barrie ambulance attendants. This is what is referred to as the Barrie overtime incident on which both the Grievor and Caldwetl testified. Fawcett wrote her a memorandum to review it with Sandi Caldwelf. Fawcett's recollection was that. the manager of the Barrie Ambulance Service complained. FawCett's recollection was that the wrong ambulance was sent to Toronto with additional overtime resulting. In his view, his conduct in this situation was usual for such a situation. He did not think there was an incident report at the time. ·He also does not recall reading Cafdwell's note (Tab 103-12). He would have initialled it if he had read it. The witness next turned to the Employee Evaluation of August 1987. He pointed. out. in evidence that the location of the X on the line' indicates where it fits in with the grouping selected. Thus for tact and flexibility when dealing with others, he had marked the X on Satisfactory but on the right side to show that it was "near marginal". His recollection was that there had been some problems and she was having difficulties in her relationships with fellow dispatchers, but he was unable at the hearing to be specific. Under other remarks, he wrote: .' i Ms Courtenay is an experienced employee who works well with minimum direction. Ms Courtenay appears to'be well suited to the task of training new employees. However may lack some confidence in her own abilities. She has recently expressed an interest in supervision. I feel that with additional training Ms ' Courtenay would be an excellent candidate for a su. pervisor or training officer. The comment about lacking confidence.came f~om various discussions in which she expressed the view that she did not have enough experience to continue to be recognized as someone who trained. He felt.himself that she was fine at it. Training Officers worked out of Head Office and it would be a promotion. He agreed with the Grievor that Evaluations are .subjective .and that it is a good evaluation. Fawcett listened to the tape relating .to the incident of the Aurora ambulance crew broadcasting that "No response from Georgian at 05:15". It seemed to him that quite a lot of time went by, if indeed they ever were answered. Fawcett stated that when a crew books in the air, they are to be acknowledged because forms have to be completed, times noted, records kept and the progress of the call noted. His only concern was that the crew was not answered. He did not believe that the crew was unprofessional in the way it booked in as the Griev.or had written in her incident report (Tab 75). It-seemed that Georgian just did not bother to respond 'to the call. Carell wrote an incident report in which he pointed out that he had been told by Fawcett not to involve himself in other dispatchers' matters. He wrote by way of conclusion: .': ' As the delay in response was minimal, and as I was following your direction, I am quite dismayed to receive your letter, and would appreciate an opportunity to discuss this call with you on 15 April 1988. Fawcett explained that he wanted to know if Carelt was there the whole time. Since he indicated yes, it seemed that he had not done anything while the ambulance crew was calling in and the Grievor was in 'the kitchen part.of that time, He and Carell met and Carell said that there was friction between the Grievor and the ambulance crew, she had decided not to respond and he had decided not to intervene. Fawcett told him this was 54 one of the situations where he should have intervened, in light of what Carell told him, he did not think that eithe[ of the Grievor.'s incident reports adequately explained the incident. He confirmed that he did not meet with the Grievor who had requested a meeting because something.came up. He had no recollection of the ambulance service .pursuing the matter. Fawcett described McKechnie as an ambulance manager who stays on top of things and that it can be annoying at times. 'He said he found him fair but he had annoyed dispatchers and management and was not "above letting us know". On the day of the incident, he was at his farm where there was no telephone when the original arrangement was made. By the time McNevin called him, he was back at .home. When the Grievor called back, he replied that he was in I~ed. In Fawcett's view, it would have been better not to have called him back, but to have 'called the staff in. The staff could then have informed him and he could have taken it up with McKechnie. Fawcett then received a complaint from McKechnie. Ne had two concerns: he had not received an incident report from the Grievor even though it was clear that McKechnie intended to file a complaint and he did not think it was an apPropriate way to deal with an ambulance service, He wrote a memorandum to the Grievor on it (Tab 85). He defended his conclusion that McNevin had had the "situation under control and that she had diminished the spirit of co-°peration and good-will we should all be doing our best to promote." But he did not consider this a disciplinary letter. He did not believe that the Grievor approached him about the matter. He also denied that while.he was acting manager at Metcom in Toronto he made any sexual advances to any of the female staff. It was while he was at Metcom that. he heard from Rusk that the Grievor had filed a written complair]t again of harassment. He. may have made Rusk aware of where he stood at that time in terms of obtaining a lawyer. But he testified that he did not tell Rusk to' pass that information on to the Grievor. He did in fact consult with a lawyer, but did not advise Mrs. courtenay of that. He also 55 · denied that he ever approached Sandi Caldwell. He identified a memorandum from EHS of the Ministry resulting from a spot check of Georgian CACC. in April/May Of 1986 and identifying a number of matters that needed to be corrected including not recording certain things and unaccountable delays in calling both standby crew members' for a Code 4. He testified that he wrote a large number of memorandums to .Pete Carell mainly because "h~ liked to do things his own ~vay." He did not believe that he sent more memorandums to the Grievor than others: he thought she probably fitted in the middle. In examination I~y the Ministry Counsel, Fawcett ·stated that since he has been at Georgian, he thinks he has only taken disciplinary action about.four times. In the case of the Grievor, there was only the written warning with respect to the Midland upstaffing. He never had any complaints from her abou~ the number .of memorandums she received from him. Over the years, they had discussions about the co.ntent of certain memorandums and in some cases he saw her point of view and the memorandums were removed from the file. He testified that because the meeting room at CACC was being used by the Regional Office when the question of a staff meeting came Up, he may have mentioned that they would have to book a room at the hotel.. Meetings have taken place at the hotel~ In cross-examinatiOn, Fawcett explained that' he wanted to leave his former position as Assistant Regional Manager because of the management style conflict with his superior. She was investigated for being overaggressive, fowl mouthed 'and Vindictive towards the' client group. She did not leave much freedom. When questioned about' his keeping his own files on personnel, he said he had to have some place to keep memorandums etc. He admitted that at appraisal time, he Would thumb through the file. .. He did not consider his letter of August 22,. 1985 (Tab 22) on pre-alert forms to the Grievor as a disciplinary letter. He did not know that it had gone to the corporate file. Where as here, he marks it to file, his secretary may have 'interpreted that as meaning 56 that it should go to corporate file. He had no recollection of the Grievor ever asking him to put a letter of commendation for her training in the corporate file. He does remember her asking for recognition in writing. On September 20, 1985, Fawcett wrote a memorandum (Tab 31) to the Grievor .advising her that he would give her the benefit of the doubt about the Stayner Medical Centre incident and that these letters would be removed from the file. He was asked by Ms UrselWhy therefore they were left in the file. He replied that it never crossed his mind to just throw the letters out. He.admitted that at the time of .the Mr. C incident, he had gotten the idea that'the patient had been taken all the way to Sunnybrook in Toronto before it was realized that there was no bed available there for him. That, 'given the time frame, was impossible. He does not consider the letter of ~uty 9, 1985 to be disciplinary.' With respect to the Midland standby incident, he testified that he expected the dispatchers to follow the policy, though there is always some leeway. He agreed that whether it is proper to depart from policy is a difficult question. With respect to the McKechnie incident, he testified t[fiat it was not related; the Grievor had no part'in it until She called McKechnie. He testified that the letter on her work during the tornado was in her personal file, 'but it was not mentioned in the August 1985 Evaluation. The reason why reference to the error rate was there was to bring'it to her attention so that she could improve: He could not remember when exactly the Grievor and Dennis Wilson came to see him about Wilson's request to work With someone else. He admitted-on examining his file memorandum of August 28,. 1985 (Tab 84) that he had not told her about the 'comPlaints from other employees prior to her Evaluation interview on that'date. Turning next to the early leaving incident of August 28, Fawcett could not recall whether the Grievor had specifically told him at their meeting on August 30 whether She had explained that she had told Sandi Caldwell that she was leaving because she was sick. There was some discussion about her having told someone. Both Graham and Caldwell denied 57' having been told by the Grievor that she was sick. He confirmed when asked about the November 1985 Appraisal that the Grievor was a good employee., When asked why he did. not write a (otter of commendation for the Grievor when stye requested it for training personnel, he expfained:" I intended to do so; I just didn't get ar'ound to it." He was asked if he remembered the incident of the Bradford upstaffing and said yes. However, he could not quote the policy with respect to an aceeptab(e standby location. However, he did believe that Caldwell wrote "whyS" . __,.. on the AS5D because the Grievor did..~ot folJow proper policy. But he did accept the Grievor's explanation when she replied to his memorandum but then in' evidence indicated that he did not in fact remember reading the explanation - which was back in 1986. . With respect to the too many pages incident, he did not raise the question of whether a dispatcher had complained that the response was too slow since that was clarified by the AS5D. He thought he may have directed her to the policy because.there may have been some change in the policy but he could not remember. Frankly, this -arbitrator's impression is that the whole incident shows flayed nerves rather than a real issue. With respect to the EImgroYe Trailer Park issue, on rereading her memorandum at the file, he said that he had been satisfied with the response from her. The complaint had come from a member.of the family of the ch/Id, but he could not recall whether he had told the Grievor that. His real concerns were the failure to mark in the time 2 and the cor~fusion over the two names for the park. In regard to the question of additional · coverage in June 1986, Fawcett had no clear recollection of what he said to her at the time. But he did continue to take exception to her writing on the. AS5D that she was acting oN his advice. There was an inconclusive exchange in the cross-examination between the Union Counsel and Fawcett as to what was correct if the dispatcher chose a different step of her own from that of her manager in dealing with asituation. ~n the end 58 it seemed it would depend on the result and whether the dispatcher could justify her decision. ~" Union Counsel asked' him about a' memorandum written on June 21, 1986 with respect to filling Out the Dispatcher 2 ~ection of the AS5D' (Tab 54). Fawcett testified that he did not specifically remember this memorandum. He did testify that one dispatcher may start a form and if another has input the matter, that is to be noted in the Dispatcher 2 section. His recollection was at' Brian Oatley who was an in,specter reviewed it at this time. Fawcett referred these form matters to Sandi Caldwelt because she was more expert about it than, he was. Union Counsel identified fourteen incidents that had been documented against the Griever. She asked Fawcett why an empleye with so many incidents documented was permitted to 'train new employees. He replied that he did not consider her not to be good at training staff, She had the patience to go through the procedures with people. He identified Sandi Caldwell and Diane Graham as knowing the procedures .aZ well as the Griever. He was' questioned about a number of memorandums which had apparently being put in the Griever's file at Georgian by ~tber employees such as Sandi Caldwell. He admitted that he had a reputation for kee )lng things documented. ' He did not' know whether these documents were still in the Griever's file. In cross-examination by Ms Ursel, Fa~Wcett stated that Sandi Caldweii made it clear, to him that she thought the Griever should have been suspended for her role in the Midland Standlay incident. However, Fawce did .not agree although it was a serious matter. A number of other incidents relating to upstaffing and ranging back as early as ~9 A position that is not uncommon to other risky circumstances such as decisions in wartime made by an officer On the spot which ~nay not be entirely what.his superior officer. wanted or in some cases even ordered. 1985 were documented and put to Fawcett during the cross-examination. In none of these was there a complaint from McKechnie although the Grievor herself had flied reports on them with Fawcett. He testified that he did not care whether McKechnie upstaffed himself or not: it was the Grievor's tone with McKechnie that Fawcett objected. to. It was fairly common knowledge that Rusk was dealing with the McKechnie upstaffing problem. But he said he did not dispute her calling McKechnie on the matter. Since McKechnie had told her he would write a report on the incident, Fawcett'would like to have received a report from her in advance. When he wrote the August, 1988, Appraisal Fawcett did not know why she was off sick. He was under the impression that she was returning in August. He admitted that perhaps he should have got full information before writing up her absenteeism Problem in the AppraiSal. If there had been an interview over the Appraisal, the comment could perhaps have been discussed. Of course he did know at this stage of the sexu~al harassment allegations. He did not deny that he understood in 1987 that the Grievor did not appreciate off- colour comments, but he denied that he considered the tan comment as off-colour and the comment' was not directed at her. He said that by referring to "white bits", he was referring to the parts covered by a bathing suit. If he had known anyone would have been offended, ' he would have apologized. '- ARGUMENT The lawyer for the Grievor relied on a number of incidents to show a pattern of harassment. 1. The evening visit in the fall of 1984 in which Fawcett¢.made a number of 6O sexUally suggestive statements accompanied, by smiles and winks. 2. Fawcett's second attendance in which he sat and watched the Grievor for two hours. He did a staff schedule but no other wdrk. 3. The comments in 1984 with regard to a staff meeting in a hotel room which was delivered in a sexually suggestive manner. 4. Comments on the training instructor's giving her a .private 'course, also made in a .sexually suggestive manner. Although these matters had apparbntly been dealt with as a result Of her going to Rusk and having meetings over them, the GrJevor',had been Subsequently exposed to a barrage of critical memorandums. , Then subsequently, her manager made the "white bits" comments. It was the submission on behalf of the Grievor that the Grievor was being singled out by Fawcett, that the critic]sm was not always fair and did not take mitigating and surrounding circumstances into consideration, Policy issues were handled by him in an arbitrary manner and as a result there was a great deal of. confusion about them. His excessive criticism of her undermined her self-confidence. As a result the Grievor had had to absent herself due to work related stress and receive therapy from her doctor. Often the complaints received from Fawcett and supervisors under his control related to things beyond her control as for example failure of persons on other shifts to do AS5D forms. While he would on the one hand set impossible standards, he would at the same time expect 'her to use her judgment on whethei' to follow policy or not to follow policy. This culminated in the McKechnie incident. Also no positive comments with respect to the GrJevor's performance had been placed on the corporate file. The Grievor relied on the testimony of J~tnW fton, who testified that Fawcett had commented on one of the female workers looking "easy" and described a brushing incident.' Peter Carell testified as to the number of memorandums which he received when he worked with the Grievor. Counse! pointed out that no other personal files had been produced in evidence to show that other employees got as many memorandums 61' as,did the Grievor. Neither of theSe witnesses had any motive for trying to "get" Fawcett by giving this evidence. The testimony of Cockburn was that Fawcett did not criticize employees Often; yet in fact the Grievor received a great deal of criticism. The other two employees who received criticism were Brown and Carell who were described as difficult, did their own.thing, i.e. did not take the work seriously. That contrasts remarkably from the Grievor and shows the difference in 'Fawcett's treatment of her. A similar inconsistency with respect to his treatment of the Grievor was that he has a reputation for following up on things: yet in her case, he often did not follow up. With respect to Rusk's role, Ms Urset. pointed out that he had no notes for the 1984 incident. When she complained in 1988, he did not examine anyone else's files to see whether there were any disc. repancies in the number of memorandums, 'etc. He passed on Fawoett's comment about getting a lawyer, but the warnings did not flow in the opposite direction. He exacerbated the situ~.tion by a suggestion which was against policy that the Grievor might be moved. in reviewing Fawcett's testimony, Ms Ursel argued that he gave no explanation for the numerous memorandums and no alternative theories for the complaints by the Grievor and Jan Wilton. In the Stayner incident, when he finally accepted the Grievor's explanation and said .he would remove the memorandums from the file, he did not follow up On it. He did not know whether the correcting memorandum went to the corporate file. Boththe Midland Standby incident and the McKechnie incidents' were arbitrary discipline. In cross-examination, he tried to argue that it was her tone of voice that was wrong, but there is nothing tin the memorandums about that. The issues over the AS§Ds with Sandi Caldwell's role in it and the pre-alert forms show more of the same inconsistency. In' the case of many of the other incidents in which she received memorandums, it became clear in cross-examidation that Fawcett was either shown not to know the policy or admitted he was mistaken as in the Bradford upstaffing incident and the too many pages incident. 62 Other incidents such as the Barrie ambulance overtime showed the same tendency to always believe the worst of the Grievor where he did not acknowledge in any of the memorandums that there was an overtime issue to be considered. Ms Ursel submitted a group of court, HUman Rights Comm!ssion decisions and arbitration decisions which I will examine in more detai{ below. With little exception, there seemed to be little dispute about the law, except as set out below. The remedies requested in final argument were: 1. a declaration of sexual harassment. 2. Removal of William Fawcett as the Grievor's manager. 3. Removal of the disciplinary memorandums and the addition of recent appraisals and letters of commendation. Ms Crawford for the Ministry submitted that she did not disagree with Ms Ursel on the case law and its current state. However, they did disagree 'on its application to this c.ase. The Employer's position is that there were no actions or demands at all which could be characterized as sexual conduct. The evidence must be real and not just subjective. There is no evidence of sexual harassment. Fawcett denied the charges going back to 1984. With respect to the holding of a meeting in a hotel, the evidence was that there was a shortage of space at the offices and that meetings were held in the hotel. With respect to the "tan comment", she pointed out that Fawcett's own Counsel had acknowledged that it was inappropriate but denies that it Was intended to offend. The '1984 events preceded her successful bid to become classified staff- a move in which Fawcett had assisted her. f The first set of complaints had been dealt with and the Grievor had accepted this at the time. The GrievoCs evidence after that for a claim of harassment was misleading and based on 'selected facts. In the early leaving incident the evidence showed that in' fact she did leave without following proper procedures. Sandi Caldwell testified that the mason for meeting with the Grievor was because of her high error rate and to point out specific errors so that she could correct them. In the Mr. C incident, the Grievor had failed to point out that there had been a complaint from Home Care so that his reaction was not an overreaction, in the Faiture to rebook call incident,- she did in fact fail to rebook the call. In the Stayner incident, Fawcett was onlylfollowing up on a complaint and he rescinded the letter. In the Midland standby incident,· Wilson testified it was a joint decision. Most of the correspondence during tl~is period was just of an inquiring nature. With respect to the "No response from Georgian" incident, it is up to the supervisor to decide what is the appropriate way to handle such a situation. With respect to the McKechnie incidentl Fawcett was responding to a complaint from the manager of a private ambulance service. This was no culminating incident in a sexual harassment case: · it was simply a manager responding reasonably to a complaint. There was no discipline against the Grievor; only an inquiry. Counsel for the Ministry argued thai only evidence relevant to sexual harassment is relevant to the case. The Grievor sees every memorandum as critical; Callas testified.' that the thickest file was that of Carell. The premise of the Grievor's case is that the Employer is responsible. However, the'Grievor must show first that there actually was sexual harassment. Counsel submitted on behatf of the Ministry that the behaviour of the Ministry was proper. The 1984 complaint was investigated according to p01icy. In 1988 when the next complaint was laid, the options were discussed with the complainant (Grievor). Rusk arranged for her to see the corporate file. After reviewing them,, he found nothing unusual There was no further internal inquiry because the Grievor proceeded with a grievance. It was submitted that there was no evidence of vexatious conduct by the Employer. The only real evidence before the Employer was the one joke which was not harassing. It was further submitted that this Board should Consider the length of time it has taken between 1984,and 1988 to bring these allegations. With respect to the remedies proposed by the Grievor: there is. only one letter of discipline in her file. Ms Ursul responded to this by saying that the Employer continues to rely on the other correspondence and memorandums in the file. Counsel for the Employer further submitted that the appraisals are now all on corporate files for all employees'. Finally, it was submitted that this Board does not have jurisdiction to order the removal of Fawcett: see The Queen in right of Newfoundl~3nd(Newfoundland Farm Produ~;ts CorP.) and Newfouodland Association of Public Employee% (1'988), 35 LA.C. 165. The remedy should be compensatory and not punitive. Ms Yudcovitch, Counsel on behalf of FaWcett, submitted that this was primarily a -case to be decided on its facts. The Griever testified that the McKechnie incident was the culminating incident in her conclusion that there was harassment by Fawcett. But Tab 85 shows that the'McKechnie incident was on May 22, 1988; yet the Griever wrote to Rusk to make a general complaint on' April 18 ('rab 80). With respect to the corporate file, all the dispute about how the Appraisal for 1'985 got on her file and the subsequent ones did not is irrelevant if her file was no different in that respect from that of any one else. Callas testified that they were not and the Union made no effort to disprove that. Dennis Wi[son testified that he and the Griever discussed the upstaffing incident before deciding and the Griever's own incident supports his testimony. There was no evidence of equipment failure in the too many pages incident and there was a note saying that.there was no equipment failbre. Ms Yudcovitch reviewed, the exhibits for the Board, grouping them into categories to show that there was no deluge of memorandums as the Griever claimed. The only letters of criticism were Tabs 3, 6, 15, 21, 22, 26, 39, 53, 54, 77, 85, and 93. Most of the documents are reports by the Griever herself (30 documents). In total there were 12 criticisms in the period October 1984 to June 1988. Of the 12, only one was actually disciplinary. Furthermore, the criticism was only random and it is within Fawcett's function as the manager to make criticisms. Indeed, he has a statutory duty to do so pursuant to the Ambulance Act. She further submitted that her client's recollection was in fact quite good for things that happened over a five year period. If he even seemed bored during 65 testimony, the fact was that the evidence is boring. And the submission is made that the Grievor was not frank in testimony. The only real incid, ent was the tan comment. It may not have been appropriate but Dennis Wilson testified that nothing came of it: i.e. everyone carried on as usual..This has to be seen in the context of an office where there is a lot of joking and sexual comments, where ambulance.crews swear and tell sexual jokes and where turnouts ¢irculat'e that Fawcett was having ,an affair with Sandi Caldwell. It is the Submissipn on the part of the Third' Party 'that the Grievor fabricates these harassment issues in her 'mind rehashing them to the point of absurdity. At the same time, Fawc6tt has been exposed to these accusations which have exposed l~im to expense and inconvenience. With respect to remedy, Ms Yudcovitch argued that the Board does not have jurisdiction to order Fawcett away from his position. Even in Human Rights Commission cases that would be a rare order. To order Fawcett to apologize would ~ot be compensatory but punitive. Even Statutory. Boards only order compliance with the Act. By way of reply, Ms Ursel argued that there was a logical connection between the 1984 incidents and the harassment claimed by the Grievor. Further there .is an "ought to provision"' in harassment cases. With respect to 'the argument that the Grievor did not grieve the discipline at the time, it is necessary to consider the threat of reprisal aspect of that and that in this case the effect iS cumulative. Furthermore, this is not a discipline' case. REASONS FO.R DECISION The Grievor grieves that in 1984 she was the object of sexual harassment by her 66 Manager William Fawcett. An effort was made through the offices of the Regional Manager Rusk to ~esolve that situation. At the time, she believed that it had been resolved. However, it is her position that as a result of that complaint, Iner Manager proceeded over the next' four years to harass her systematically with critical memorandums and other documents. Then in 1987 he again made an improper remark that she asserts was further sexual harassment and that the harassment continued up to .and even beyond the filing of the grievance. He denies all of this except for an admission about a remark made in 1987. It is for this Board to resolve this conflict in the evidence of the parties, This was a tong difficult case with much evidence. ~t has no doubt been unhappy experience for all the_parties involved. At the beginning, clear to me that the persons who work in the ambulance dispatch services - as the evidence showed - work under extremely stressfuf conditions. The decisions that have to be made on ada, il¥ basis, are 'often literally life and death decisions. 'An aspect of this is that there is often a serious question of whether written policies apply to a particular situation and if so whether the dispatcher should follow the policy or policies With respect to a particular situation. One of the Complair~ts of the.Grievor with resPect to her manager Fawcett was that she experienced situations where she felt that she was being criticized for not: following policy and other situations where she felt he was criticizing her for following policies, Because the incidents relied upon by the Grievor as proof of the harassment she alleges.arose in the context of,the operations of the Georgian dispatch centre, it became necessary to examine in minute detail a large number of situations that arose during those operations. Ms Yudcovitch submitted that it is not.for this Board to judge. Fawcett's management style as such. However, it is clear to me that we are unable to' avoid deMng into his manager style ~nd his judgment catls in determining whether actions that he took and' memorandums which he wrote to the Grievor were motivated by 67 a desire to harass her or are explainable in other terms given his management techiques and Concerns. In a sense, the defence itself by the Ministry and by Fawcett is to a ..substantial degree based on its claim that he was a memorandum writer..It is not our. concern of course to engage in an at-large review of his managerial acts or capabilities, but to the extent that they impinge on the issue of sexual or other arleged harassment, we are involved. The case factually resolves itself into three groupings: the original alleged sexual harassment, the alleged continuing harassment, which was thought to .be retributive by the Grievor, and the final alleged renewal of the sexual harassment in 1987. The first group of events being the claim of sexual remarks in 1984 are from the point of view determination to some extent the most difficult because they occurred for the-most part without witnesses. They boiled down to a question of credibility between the Grievor and the Third Party. Everything else relating to this part is of a circumstantial nature. There were three parts to this: 1. the comment that Laurin could provide a private course for the Grievor in First Aid; 2. the evening Fawcett sat alone with the Grievor on the evening shift and' allegedly made suggestive comments to her; and 3. the proposal. that a meeting be held at his hotef room. This grouping arises in the context of Somewhat , similar allegations by Jan wilton included in which' was the much' more serious allegation that he actually deliberately brushed up against her and made an off-colour suggestive comment about one of the other women dispatchers. The third woman complainant at the time did not.go forward with her complaint and did not appear as a witness before this' Board: accordingly, I do not give any consideration to her complaint. Since there is a question of credibility, I do consider that Fawcett did make an inappropriate or sexually suggestive comment in 1987 to the Griev0r and that after having already faced ar~ earlier accusation in 1984, gives me grounds to believe that he was capable of making such comments. The evaluation of such comments as a issue of sexual .harassment will be discussed later in these reasons, At this point, I am directing my attention purely to the 68 question,' on this evidence and this testimony· what can we conctude he said to the Grievor in 1984. With respect to the.Grievor and her credibility, I note that she displayed during testimony that she was very intelligent but inclined to be somewhat of a perfectionist. The evidence and her testimony showed repeatedly that she did not take criticism lightly. With respect to off-colour or sexually suggestive comments or jokes,' she .. took extreme exception to them. At this point, these 'comments are relevant to the question of whether she r'eally did hear what she says she heard or whether her testimony needs to be viewed in light of those personality characteristics which became so evident over the two years of testimony in this case. By way of findings with respect to this part of the evaluation of the evidence, I am satisfied that Fawcett did. say some suggestive comments on the evening he came to sit in the console room with the GrievOr. The Grievor expressed the opinion as did Jan Wilton, that FawCett actually was hoping to solicit female employees for sexual activity. But in my view based on all the evidence, it is more 'consistent with what Wilton testified that he said about Wendy Caldwell, namely that she '~looked ready" and his comment in 1987 about the "white spots" that he at least occasionally used sexually suggestive language for effect much as some people tell sexual jokes. The Grievor testified that he referred to nurses as friendly, that he liked slim women and that she seemed worldly in some ways and young in others. On the balance, I accept that he did make some sort of comments of this nature. However, .I am not suJ'e that the reference to using a hdtel room for a meeting or a course with Laurin were made as sexual comments since they could equally have been neutral in meaning. I think the Grievor could have misunderstood what was being said and I am prepared to give the Fawcett the benefit of the doubt on this point. But if they were made in that sense, they would be of the same genre as.the comments made in the Console room. I point out at this juncture, that at that time, Fawcett did not know the Grievor. He had no specific grounds for knowing that she would 69 personally take extreme exception to any suggestive or lewd language or connotations. The significance of that wilt be discussed below. It goes almost without saying thai'there are some people who would riot take exception or be upset by such comments, even when coming from a direct supervisor. On the other hand, it is at the least inappropriate for a supervisor to do so under such circumstances. The probJem, however, appeared to. be resolved at the time as a result of the complaints made to Rusk.~° The next group of issues relate to the period from the apparent resolution of the 1984 complaints until the "white spots" comment of 1987. As We have seen the Grievor alJeges that she' was ~ystematically harassed by Fawcett, presumably out of spiZefu~ness for her complaint against his earlier sexual harassment. This involves as we have seen a whole series of episodes or. incidents relating to her work. The Grievor was upset by what she considered to be a critical Appraisal in 1985. This as we have seen raised again a group of other issues such as the frequent errors in AS5D forms issue. The testimony shows that C.A.C.C. appeared to have a higher rate of errors than the average in the province. Sandi Caldwell got the job of trying to address that issue. I am satisfied from her testimony that she was in fact just doing that job. The Grievor's concern that Caldwell was directed or persuaded by Fawcett to look for "more errors" on the Grievor's part as part of some sort sinister ptot.is not shown on this evidence, in itself, it was not a major matter. The Grievor may have disagreed with Catdwell about how many errors she had made and, judging from the tone of the testimony, t am inc[ined to believe there may have been some personality conflict' between Caldwe~l and the Grievor, but I am satisfied on this evidence that Caldwell was not deliberately picking on the Grief/or..Furthermore, the Grievor was not exposed to any discipline on this matter. It did appear in her ~o By way of comparison, when this arbitrator was young which was before the period of Human Rights Commissions and legislation relating to sexual harassment, the old values of respectable' behaviour would still have considered such comments by mate supervisor to a female employee as improper and inappropriate behaviour. 70- Appraisal, but on the mater'ial befo~'e him at the time, Fawcett-appears on this point to have acted in a reasonable manner, With respect, to the level marked for Alertness, Judgement, Planning and Communications; Quantity, Stability and Overall Evaluation, it is necessary to bear in mind, as the Grievor recognized herself, that these are sUbjective judgments and I gather from the testimony of Fawcett based on what in the current .buzz word is called "anecdotal" 'information. None of the values assigned for these by Fawcett were below average. She reCeived high standing for Dependability and Job Knowledge. At the time, the Grievor was still a probationary employee. Although the Grievor found some of this below her own expectations, there is nothing in these parts that is indicative of a improper evaluation. Turning to the comments, I note the criticism by the Grievor and her Counsel that Fawcett had not warned the Grievor before the Evaluation that there were fellow employees complaining about her. That is I think in terms of'fairness a legitimate criticism .of Fawcett's management style. Other evidence during the hearing from various dispatchers show that there was from time to time som~ complaining and some of the other dispatchers did find the Gdev°r somewhat difficult-'to work with. Whether the complaints were legitimate or not is a different question, it would have been a fairer and better procedure for a manager like Fawcett to inquire among the complaining employees end of the Grievor about it in order to get to the bottom of the problem, before placing. such a criticism on the Grievor's Appraisal, which is a permanent record. The 'evidenc~ seems clear to me that Fawcett liked "team players" and he responded negatively to employees who caused or were the source of difficulties. In this case, of course, the employee had already made a complaint-against him personally with his Regional Manager. it would be difficult;to know whether and if so to what extent his own earlier but apparently resolved conflict with the GrievOr might have contributed to his decision to 71 write this comment in her first Evaluation. I am more convinced that the complaints from the other employees were the real ~actor. In any event, 9iven ~t~l that b~ckground, the comment in the Evaluation did'at the least represent faulty judgment on his part in dealing with the situation. It did not appear in later Appraisals. 'A number of letters and documents were attached to the Appraisal which related to various matters over'the previous few months: Tabs 3, 15, 6, 22 (23). Tab 3 was the_ Mr. C incident. In this particular case, a very ill patient as .we have seen was taken away in an ambulance and then had to be returned because there was no bed for him. The Grievor may be right that Mrs McBride was vag~Je, but she' did have to bear some responsibility for the error. For a manager to write with respect to such an incident and the incident of failure to rebook, that it showed "inattention to the job" is not obviously out of line with'the facts so as to give on its face an inference of improper motivation on his part. it is criticism, but it was not specifically disciplinary. Tab 6 relates to the Stayner Medical Centre incident. The issue is really one of specific procedures to be follow in instructing ambulance crews. The Grievor could of course have been more precise and, consequently, more blunt with the ambulance crew. The manager certainly has'the right to instruct her to do so, nor should she normally take exception to that. I note that the tone of his letter 'to her is perhaps rather harsh under the circumstances. This.was partially alleviated by his Memorandum.of September 20. However, I do consider it to be of the operational genre and not disciplinary as such? Her interview with Fawcett to review the August 1985 Appraisal, was immediately followed by the early leaVing incident. Here the dispute is between the Grievor's recollection of the events and those of Sandi Caldwell. I did not find anything ~n the testimony of either witness on this point to doubt that each believed her version of the 2~ A question of the impact of these memorandums on the competency record of the Grlevor could arise if proven to be harassment. 72 events. ~t is clear to me that what happened was that the Grievor was upset and felt that she had made it clear that she was feeling sick and was going home. I am also satisfied that Caldwell did not hear or. understand that message and therefore did not actually know why the Grievor was leaving. It was a misunderstanding in my View. I do not classify the letter from Fawcett as disciplinary. At the same, time he. does' not seem to have given the Grievor the benefit of the doubt. He could have simply seen that there was a misunderstanding and written a memorandum to the ~taff to make sure a supervisor understands when one of them~ is leaving because of illness when that is the situation. As we have seen, Fawcett finaliy did write a memorandum giving her the benefit of the doubt with respect to the early leaving incident and the Stayner Medical centre incident. Like so many other incidents in this case, these two incidents created more of a problem through injured feelings and antagonisms among employees than on their face .the ;, incidents themselves really deserved. At the same time, I certainly am not convinced on' · this evidence that there was any sinister conspiracy between Sandi Caldwefl and FAwcett so to speak to frame Patricia Courtenay with respect to the early leaving incident or the AS5D error rates. The discipline letter of August 15, 1985, is relied on by the Grievor as evidence of further har.assment .by Fawcett. On her own testimony, her grounds for complaint about the letter are that it failed to show that it was Dennis Wilson who sent the ambulance out of area 'without contacting the standby crew .to come into base..However, when she became aware of it, she agreed with him not to do so. She also claimed that she deferred to his judgment because he was older and she felt he was more experienced. She did not grie,~e at the time. The issue she perceives is in my view a. very thir~ issue. If she had been suspended, it might have some relevance but in the form of a letter of reprimand, the distinction of Wilson's having made the initial dispatch is not very significant and the failure of Fawcett to write a separate tetter to the Grievor to make such a distinction is not 73 in my view evidence of harassment on his part. With' respect to the too many pages incident of May 7,-this is another example of the way Fawcett responded to out of office complaints. I tend.to agree with the Grievor that it would have made sense for him to have written the amburance attendants in order 'to inform them that there was no questioning of their response time i,ntended. Still, the fact that he attached the Policy for her and her co-worker to follow in future seems of small consequence. If there was a serious dispute about what should be.done under these circumstances and in this respect ! accept the testimony that there' was some concern about equipment problems, then I am surprised that there was not a review of the appropriate procedures. Be that as it may, the incident seems neutral from'the point of view of a claim of harassment. With re.~pect to the Elmgrove Trailer Park incident, in her incident report, the Grievor acknowledged that the AS5D shoutd have contained the information on the difficulty the crew encountered in finding the trailer park and the fact that it had another name. There was nothing improper in Fawcett's memorandum to her on this point;, nor, do I agre, e with the Grievor that he was just generating paperwork for' her. The incident involving Barrie overtime, was, within the context of the CACC Georgian office, primarily a dispute between Sandi Coldwell and the Grievor. Fawcett received an incident report from the Grievor and a complaint from the Ambulance service (Exhibit 8). Naturally, in his usual concern about complaints, he again decided to pursue it but did so by referring it to Sandi Caldwelk The Grievor as she testified herself did not consider the Ambulance Service's own policy on overtime binding.on her. In Caldweli's testimony, she agreed that it was ultimately a decision of the dispatcher although she did say the new policy was to ask the crew if they wanted overtime. ~ do not doubt that the Grievor's reaction was affected by her belief that the ambulance services were just playing games. She may have been right that they played games, but she also was not as diplomatic with the crew in Barrie as that new policy would suggest and she appears to have overestimated the amount of time that the daytime crew required to return to base. The Cafdwelf memorandum does not appear to be excessively cdt/cai, even if thb Grievor does not agree with all of its points. The Aurora crew incident of March 25, 1988, is a more complex situation than the Barrie situation. It is nevertheless another example of tension between the dispatcher and ambulance crews. In this particular case, looking at the situation as a whole and listening to the tape, I am inclined to accept generally the judgment of the Gdevor thai: the ambulance crew were acting up. Whether she should have responded to them was a decision she had to make at the time: it certainly sounds as if they were looking for a dust-up. I am therefore inclined to find t~at she probably avoided a worse situation by simply a!lowing them to blow off steam. Fawcett's reaction, however, was consistent with his concern about disputes with outside crews. My judgment is not that he was harassing the Grievor because of an~ on-going harassment intention, but merely reacting again where an employee had in his view disturbed the tranquillity of relations between Georgian CACO and an ambulance crew. The same pattern reveals itself in the McKechnie incident. The Grievor was correct on the policy that the dispatchers should. not do the work of the Ambulance services. No one challenges ,that. The Grievor fna sense stuck her neck out by calling McKechnie up a:nd telling him' that the Dispatch office would not do it. Fawcett complains that it should have gone through him, The Grievor also did make a mistake in not writing an incident report at the time since it was inevitable that ' McKechnie would complain. The Grievor was not disciplined for this; nor could she successfully have bee, n .discilSlined. Fawcett appears to have allowed his concern for co- operation override the application Of an accepted policy, F~rankly, I find Fawcett'.s position on the point self-defeating in terms of sotving the problem with McKechnie. At the same time, the other dispatchers involved seemed to have also accepted the route of toast resistance, notwithstanding Fawcett's own official support for shifting the obligation to the service managers: see Tabs 67 and 72. There is some difference in the testimony of the Grievor and Fawcett about What exactly was said in the tan incident. The actual difference in the wording of the comments. is not in itself significant: the purport of the words is the same. I do not have any doubts that the Grievor'felt that the words were as she put it: invasive and insulting. It was the only actual comment by Fawcett of that nature since the events of 1984. Although he may not have intended very much by the words, it has' to be viewed in the context of his knowing that the Grievor had already made a sexual harassment complaint against him in 1984. In that context, he should have been fully alert to the dangers or implications of laPsing into off-colour comments or language that had sexual connotations in front of the Grievor. Nor is it excusable because other people might regard theI comments as innocuous or even just ~;itly. With respect to the Grievor's argument that she was systematically being deluged with memorandums and complaints in order to wear her down,, I am not satisfied on the evidence before us that such was the case, The evidence shows that' she did receive a. large number 'of memorandums and inquiries from Fawcett over the years. The evidence also shows that some other employees also did. ,The pattern seems to be that Fawcett did write a ~arge number o1' memorandums and particularly tO dispatchers who broadiy speaking departed from the team player role, In this respect, they may have departed in different ways: some were possibly too aberrant in their style such as carell. In the Grievor's case, she ter~ded to be a stickler for policy and when this. created issues, memorandums flowed. Other memorandums were just small technical matters: often the Grievor was right and also on occasions she was not. It was her perception of Fawcett that cast a sinister complexion on'it, Another factor I am Sad to say may have been her own difficulty in accepting criticism, But the evidence'is inconclusive that she was singled out. Others did receive large numbers of memorandums as well. The discovery of this mass of documents in Fawcett's own file for the Grievor only showS' his tendency to keep many of the memorandums he wrote, t am attracted to Mr. Callas' description of that file as a "dog's breakfast", its existence was much more consistent with Fawcett's style of management, than with any theory of systematic harassment. The Grievor testified that · she went off ill because of the stress created by her belief that she was being harassed. Fawcett and Rusk seem to have handled this particular issue ineptly. Rusk at least put it aside once he actuatty realized that her absence from work was related to the harassment issues. But viewing the situation based on the evidence, I cannot conclude .that Fawcett intended or could even have perceived that the final result of his management style would be to drive the Grievor into such stress. That however is a' separate issue from the actual findings made with respect to the improper 'comments made by him in 1984 and then the tan incident in 1987 and of the responsibility I~e must bear for that. With respect to Rusk's role, While I do not find on this evidence that he was as high-handed or indifferent as the Grievor suggests, he did not at all times by his · comments show himseff sensitive enough and balanced enough to escape from criticism of his handling of the 1988 complaint. His contrasting of the Grievor's situation with that of a rape victim was wholly inappropriate and insensitive, The manner in which he relayed Fawcett's comment that he might get a lawyer was poorly thought through. At the same time, I do not find that he. treated the complaint as lacking seriousness or substance. In the end the use of the Grievance procedure did take it out of his hands. His earlier handling of the 1984 incident nevertheless seems to have been more effective. Furthermare, he did muddy the waters with the absenteeism issue. There was na evidence to show that between the presumed resolution of the ~9~A dispute and the new Complaint in 1988 tl~at any one' brought any of these issues to his attention so that he 77 cannot be faulted .for taking no action during that time period, Finally, there are no grounds on this evidence for any suspicion that he was somehow in league with Fawcett to harass the Grievor. The Law Counsel for the Union cited to us the decision of the Supreme Court of Canada in ,lanzi~n v. Platy Enterprises Lt¢. (1989), 89 CLLC "If 17,011. That case involved an accusations of sexual harassment by two waitresses against the evening shift cook of the restaurant where they were employed. Although having no formal disciplinary powers over the complainants, he was represented as having control over firing employees. He engaged in sexual advances including touching. When this conduct ended, he engaged in a pattern of uncooperative and threatening behaviour When the waitresses complained to the manager owner, he refused to do anything about it. Both were .terminated by the manager ostensively for other reasons. At the time of the acts complained of, the Manitoba H~rrlan Right~ _Act contained provisions against discrimination on the basis of sex. Subsequently, the Act was amended to include provisions dealing with sexual harassment. The adiudicator found that the complainants had been victims of. sex discrimination having found that they were .subjected to persistent, and abusive sexual harassment. He adopted the definition of sexual harassment quoted by Professor Cumming in Giouvanoudis v, Golden Reece Resta~ura, nt (1984), 5 C.H.R.R. D/1967 AT PARA. 16819, as follows: , From a factual standpointl sexual'harassment can be considered to include: Unwanted sexual attention of a persistent or abusive nature, made by a person who knows or ought reasonably to know that such attention is unwanted: ., or Implied or expressed threat or reprisal, in the form either of actual reprisal or the denial of opportunity for refusal to comply with a sexually oriented requirement; 78 Sexually oriented remarks and behaviour which may reasonably be perceived to create a negative psychological and emotional environment for work. The Court made an extensive examination of the literature and case law on sexual harassment in its determination that sexual harassment was a form of sexual discrimination within' the meaning of the Manitoba Human Rights Act. At page 16,072, Chief Justice' Dickson wrote: Emerging from these various legislative proscriptions is the notion that sexual harassment may take a variety of forms. Sexual harassment is not limited to demands for sexual favours made under threats of adverse job consequences should the employee refuse to comply with the demands. Victims' of harassment need not demonstrate that they were not hired, were denied a promotion or were dismissed from employment as a result of their refusal to participate in sexual activity. This form of harassment, in which the victim suffers concrete economic loss for failing to submit to sexual demands, is simply one manifestation of sexual harassment, albeit a particularly blatant and ugly one. Sexual harassment also encompasses situations ip which sexual demands are foisted upon unwilling employees or in which employees must endure sexual g,ropings, propositions, and inappropriate comments, but whenever.no tangible economic rewards are attached to involvement in the behaviour. The Chief Justice adopted a dictum of the U.S. Court of Appeals for the 11th Circuit in I-[enspn v. Dundee, 682 F.2d 897 (1982) as folloWs: Sexual harassment which creates a hostile or offensive environment for members of one sex isevery bit the arbitrary bar(ier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet .of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets. (89 CLLC at page 1.6,073) His lordship then cOntinued: Without seeking to provide an exhaustive definition of the term, I am of the view that sexual haraSsment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is, as -Adjudicator Shime observed in P~.¢II v. [,sda, s~l;)ra, and as has been widety 79 accepted by other adjudicators and academic commentators, an abuSe of power. When sexua~ harassment occurs in the workplace, it is an abuse of both economic and sexual power..Sexual harassment is a demeaning practice, one that constitutes a profoU.nd affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexua~ demands, sexual harassment in the workplace attacks the dignity and self- respect of tl3e victim both as an employee and as a-human being. With respect to the liability of the employer for the. sexual harassment by its employee, the court followed its earlier decision in Robich~,~d (~t <~1 v. H.M.The Queen (Treasury Board), [1987] 2 S.C.R. 84. In that particular case, the court' (speaking through La Forest J.) rejected theories of employer liability based on either criminal or tort law liability theories. The court looks to the effectiveness of the remedy under the statutory regime. The Canadian Huma,n Rights Act is concerned with the effects of discrimination rather than its causes or motiyations: At page 95, La Forest. 'J. writes that" only an employer can remedy undesirable effects; only an employer can provide the most important remedy- a healthy work environment." At page 95, he writes: Hence, I would conclude that the statute contemplates the imposition of liability on employers for all acts of their employees "in the course of .employment", interpreted in the purposive fashion outlined earlier as being in some way related or associated with the employment. It is unnecessary to attach any label to this type of liability; it is purely statutory. However, it serves a purpose somewhat similar to that of vicarious, liability in tort, by placing responsibility' for an organization on those who control it and are in a position to take effective remedial action to remove undesirable conditions ...... He therefore declined to inquire into the allegations that the Crown would be directly liable , for man~gement's failure to adequately investigate the complaints. He added.that s'uch issues would go to remedy.' In this respect he wrote: I should add that while the. conduct of an employer is theoretically irrelevant to the imposition of liability in a case like this, it may nonetheless have important implications for the employer. Its conduct may preclude or render redundant many of the contemplated remedies. For example, an employer who responds quickly and' effectively to a complaint by instituting a scheme to remedy and prevent recurrence will not be liable to the same extent, if at all, as an employer who acts to adopt such steps. These matters, however, go to remedJaJ .consequences, not liability In Olart¢ et. al y. Rafael DeFJlippis j~nQ Commodore Busine~. Moch[r~e,.,s [..et., (1983), 4 C.H.R.R. para 14557, D/328 Professor Cumming dealt with a case of sexual harassment where the effect was that two of the complainants were found to have been constructively dismissed in that they quit their work to avoid' the sexual harassme.nt. He found that to varying ~legrees, the Complainants suffered emotional difficulties because' of the. harassment, in that case, he referred to Mitchell v. Traveler Inn (S.~dbury) Ltd. (1982) 2 C.H.'R.R. D/590. The employer was a manager of a motel. When the complainant arrived at work, he made certain remarks that she took to be sexually suggestive and that indicated that sexual compliance was to be a condition of her prospective employment. The board stated that.the language was not explicitly seXual, making it conceit/able that this was simply a case of misunderstanding: On the other hand, harassment did not have to be explicit to be contrary to the Human Rights Code. "Stereotyping, the very thing which human 'rights laws are designed to combat, is actually a facilitator of insult by mere implication." In further, support of this position, extensive excerpts were filed by the Union from Arjun Aggarwal, Sexual Harassment in the Work~lace (1987, Buttersworth, Toronto),Constance Backhouse & Leah Cohen, ~ Secret OppresSi. gq, (1987, Macmillan, Toronto), Catharine MacKinnon, Sexual Harassment of Working Women, (1979, Ya[le University Press) and Judith Keene, Hum{in .Rights in On.t~rio, (1983, Carswell, Toronto), and Nathalie Hadjifotiou, Women ~nd Harassment at WOrk, (1983, Pluto Press). Some of these materials also. discussed the use of crude 'and bad jokes as part of sexual stereotyping. Contrasting with this was the argument ~based on Treasury Board (~mployment and Immigration Canada) end Dr.oomfiel[t, (1989), 6 L.A.C. 353 for the proposition that the test or standard :of conduct which constitutes sexual harassment must be an objective one and not simply based upon the subjective impressions of the victim. Professor Norman dealt with the question of remedy in R.e Qaniitda POSt Corpore/io..n_an¢ C~r~adJan Union of Post~ Workers, (1983), 11 LA.C. 13 in the context of arbitral adjudication.. Counsel for the employer in that case argued that it would not be appropriate for him to purport to order that an apology be given. He quoted Hinnegan in RE: Stanley Works Ltd. and Int,'l A-~so¢. of Machinists. Local 1226, (1979), 24 L.A.C. 395 which followed American .jurisprudence of the time. Setting out that compensation was the usual measure of the remedy, he and in the end Professor Norman decided that demanding'an apology from a supervisor outside 'the bargaining unit or to demand that the employer discipline such employee was not compensatory but was more akin to punitive action. But Hinnegan did-not rule out the possibility in an appropriate case that an employer might be ordered to comply With its obligations to provide a safe work place or one free from discrimination and that this might have the result of ?discipline of the offending employee, if the employer felt that was the best way to ensure compliance." The MiniStry also filed a decision of Professor Swinton on the question of the remedial · authority of an arbitration board in such a casei the decision being that in C.u.P.E. and Office ~3nd Pr0fe.~sional Employe~' InternatJonal UDion. LOcal 491, (1.982), 4 L.A.C. (3d) 385. The grievor grieved that she had been dismissed because of absenteeism which she claimed was due to sexual harassment. The lawyer for the Grievor argued that the arbitration board had jurisdiction to order discipline, "removal" or apologies from someone, outside the bargaining unit (here, a fellow employee) on the basis of Re Oil, Chemical & Atomic Workers and Polymer Corp, !,,rd. (1959), 10 L.A.C. 51 (Laskin); that is, the board must be able to fashion an effective remedy for breach of the Collective agreement. To provide a healthy and safe work place and to protect the grievor, that remedy would be. the removal of the offending employee by dismissal or transfer, Citing a number of cases both Canadian and U.S., Professor Swinton held that remedies traditionally have been compensatory in nature. To require the offending employee to apologize wouid not be ' compensatory. She then continued (at page 389): That is not to say that if one employee's conduct constituted a violation of the collective agreement the grievor would be without remedy. It would be entirety appropriate, in some Cases, for an arbitration 'board tO order that the employer cease from violating the coflective agreement or that the employer comply with its obligations to provide a safe work place or one free. from discrimination. The result might well be the discipline of the offending employee, if the employer felt that was the best way to ensure compliance. . , The decision whether or not to discipline or how to control employees is one best left to management, as the cases discussed above have found. A major part of "management rights" is the employer's right to select and direct staff and to decide the severity of disciplinary action required. Professor Swinton was also concerned in the case before her that the other employee involved was covered by a collective agreement with another union and an order for discipline might undermine his rights under that agreement. She .also distinguished the remedies available to a board of arbitration from those available to the Labour Relations Board or a board of inquiry appointed under the Ontario Human Rights Code. both of which operate under broad statutory mandates. Even under human rights decisions, there were no examples before her of orders removing offending employees. · These decisions are somewhat ambiguous as to what the scope of authority of a · board of arbitration is. As a matter of policy, they both'in effect state that they do not think an arbitration board should be meting out punishment or making punitive orders against employees not subject to the collective agreement from which they derive their jurisdiction. As a' matter of policy, I would agree that a board of arbitration should not get itself into the business of punishing non-bargaining uni~. employees. Even in the case of discipline of bargaining unit employees, a board only reviews the discipline 'originally imposed the employer'. The question of what remedies a board feels are necessary to put an end to sexual harassment is of course the real issue. In that regard, I have not doubt that this board under s. 19 of Crown Employees Collec. tive Bargaining ACt has extensive powers. Indeed, the Divisional Court has repeatedly reminded the Grievance Settlement Board of the scope of it§ remedial powers, as for example in the' areas of jOb classification and the Bere-~ford type cases. The same is certainly true in the area of sexual harassment. Of course, for any order made by this board either directly against such a non-bargaining unit'employee or indirectly imposed by an order directed to the employer under which that non-bargaining unit employee is effectively ordered to be transferred, the rules Of natural justice must be complied with. We have done so in this case by giving Fawcett full status. The real question therefore is not what powers this board has, but what specific Orders ought to be made on the facts in a case if a violation has been found. CO NC LUStO NS: To sum'up the facts as we have found them and their impfications,! find as follows: the Grievor was in fact exposed to certain statements which could be characterized as off:colour or somewhat lewd statements in 1984 by Fawcett. It is not clear on the evidence whether Fawcett would have been able to know in advance that such statements would be unfavourably received. At the same time, as a manager he Ought to have known that such behaviour was-in any event inappropriate. I have not found that they were as extensive as the Grievor believed but they were significant enough to lead to a sexual harassmen! complaint to Fawcett's own district manager. The implications of his various ,comments were such that another employee pressed similar complaints at the same time. Fortunately, at the time, the issues were resolved and that should have been the end of the matter. However, in 19871 Fawcett again lapsed into an · offensive statement before the Grievor. This was much more serious because he was now affected with actual knowledge of the Grievor's personal sensitivity to such 84' comments. It is serious enough if you are reckless or indifferer~t to how the employee may respond; it is much more serious where you have the knowledge that the employee will be adversely affected by the comments. The effect was to undue the remedy or solution which had been reached in 1984 and revive and.exacerbate the original problem. The Grievor alleges and believes that Fawcett has systematically engaged in harassment over the years since her original complaint in 1984. That allegation in my view fails: it is not sufficiently demonstrated in the testimony or the documentation. What has happened however is that the actual inappropriate behaviour which did occur poisoned the situation so that the..Grievor became convinced that there was an even more evil intention and activity. This is an example of the serious effect which inappropriate behaviour can have. Certain matters were traditionally 'considered taboo in polite society'. They were I suppose characterized as a question of decency or good manners, in today's world, loose talk about sex, religion and race are seen as being of such a fundamental nature as to be characterized as harassment issues. The subjects are considered fundamental matters in the workplace; Different people respond in different ways:, but in the work Place the views of co-workers whether Coequal or subordinate, must be respected. The problem would be,' similar if the Grievor had been Roman Catholic and her manager had made iokes in front of her about the mass or the Pope; or if she had been a member of a different race from that of her manager and her race treated humorously. It is no defence that others in similar circumstances might have shrugged off such comments. On this the law is absolutely clear: an employee is entitled to a proper working environment, free from sexual, religious or racial harassment. ( REMEDIES The Grievor is entitled to a declaration that sexual harassment to the extent found by this Board did occur, i however do not think that it would be appropriate to direct the Employer t~o transfer William Fawcett. The findings against him are not anywhere near as serious as the allegations made against him. Such an order would be only be justified if there was no hope o,f remedying ,the situation without such an order. I do not believe that the facts disclose suCh,a situation. The Employer is directed to comply with the Collective Agreement as provided in Article 27 and to take whatever steps are appropriate to maintain a work environment free from sexual harassment. In particu!ar, it is so directed with respect to William Fawcett behavioui towards the Grievor. I personally believe that he will comply: it is a matter of exercising'self restraint and refraining from !nappropriate comments such we have found he made in the past. With respect to the corporate files, the Employer is to check to see that all the performance appraisals are on the Grievor's corporate files. AlthoUgh I did not find any sinister intention in what appears to have been a mix-up in their not originally going on the corporate files, because the other conduct of Fawcett had a negative effect on the general situation, it would seem an appropriate step to make certain that the corporate files are complete. The Grievor's~ desire to 1receive letters of commendation or have removed any disciplinary or other critical tatters is beyond the scope of remedies available in this case because they have not been found to relate to the findings of sexual harassment. - With respect to the Employer itself, it is of course responsible for the acts 'of its manager and further to the extent that it did not implement these remedies on its own motion once the Grievor complained in 1988. I have already made findings relating to Rusk's role. No request was made for damages by the Grievor. ' / The p~nel witl remain seised of this matter pending the implementation of this Decision. DATED at Toronto this 7 day of ;oc,'ober, 1992. Thomas H. Wilson Vice-Chair Peter Klym Union Member "I Dissent" (dissent attached) Horace Knight Employer Meml3er ' F 87 Appendix A Order and. Scope of EXamination of Witnesses At the hearing on October 30, 1989, Ms Yudcovitch argued that it had become apparent that there was such a difference in interest between the M~istry and the Third Party William Fawcett in these proceedings that a further clarification as to the precise order and scope of examination of witnesses need to be made. Extensive arguments on the issues were received from ail parties on November 20 and on November 24, the following unanimous Board order issued: .The Board hereby rules that the i~tervenor and the employer may continue to examine each other's witnesses in chief before cross-examination by the Griever and may re-examine each other's witnesses on those matters arising from the cross-examination by the Griever where there is any inconsistency between the evidence present, ed by the intervenor and that presented, by the Employer,, regardless of whether such party has actUally asked any questions in chief, In alt other respects, the usual rules of evidence applied by this Board shall continue to apply. Appendix B August 1985 Employee Evaluation Repo~ for PatricJa Cou~enay Ei~LOYE~ Ev~UATIO~ FOI~ 4 DEPA~NT: ~ORG~ DISPAT~ JOB TIT~: BI,PATtER PU~OS~ OF EV~UATION: To take a personal inventory, to Din-point weaknesses and ~tren~hs and to o~line a~d agree upon a practical improvement proCram.. This evaluation will provide a history of development and pro~res~. 1 - ACCUSe is the of work du~ie~ perfo~ed. Cover~ all Dha~es - profession, policy, procedu~e~, rmCponsi~ility. ~la~es ~requen~ - Car~le~s' USually accurate; errors, recurrent error~, average n~er of · -- mistake~. exact & precise mos= of :ime. Almost a~ways.aCcurate'- 2 - ~RTNES$ and Flexibi~iey i~ ehe.a~ility eo ~ra~p in~eruc~ion, meet chang~g conaitions and solve ~roblem situat.ion~. Quickness to interpret. · Slow to catch on Require~ more =hah Average grasp a~erage ~struc%ion~ of instructions.' Usually quick =o ~xcep=ionally understand & learn. ~een and alert. 3 - JUDGg~NT ~he de~ree ~o which decision~ or 'actions ar~ ~oun~; based on analysis of all circumstances. .~kes ~requen= errors. Careles~ Usually Accura=e; recurrent errors. Exact & precise Almost always most of time. accurate. p~e. ~mployee Evaluation ? rm 4 - PLANNING and Organization ability to plan schedule; layout work and make effective use of resource materials. Makes frequent ~Careless Usually accurate; errors, recurrent errors. ~era~c nu~.,k~. 3f m~stak~. Exact & precise Almost.always most of time. accurate. 5 - PERSONALITY is an individuals behavior characteristics or his/her personal suitability for the job. Personality unsatisfactory Quest£onable Satisfactory for this job. for this job. for this job. Very desirable" Outstanding personality personality for this job. for. this job. 6 - COM~4UN!CATIONS (oral and written) ability to present idea~ clearly and concisely. Unsatis factory Questionable for Satisfactory for this job. this job. for this job. 'very desirable Outstanding for for this job. · this job. 7 - DEPENDABILITY / Reliability is faithfulness in coming to work daily and conforming to work hours. Following through on all phases of work (loyalty, etc.,) Often absent without Lax in attendance and/or reporting goc~ .excuse and/or for work. frequently late. Ouu~ily present ann very prompt Always regular · on time. regular attendance ' and prompt. ! .~i~cyee Evaluation .'form 8 - JOB KNOWLEDGE is the information concerning work dutie~ which ah individual 'should know for a satisfactory job performance. Poorly informed Lacks knowledge Moderately about work duties, of .some phases, informed. .Understands all phases. 9 - QUANTITY/ Quality of Work is the ~amount-of acceptable work an individual does in a work ~day. does not meet Does lust enough Satisfactory minimum requirements, to get by. Very industrious Superlor wor~ 10 - STABILITY is the ability to withstand pressure and to remain ~alm in crisis situations. "Goes to pieces" oCcasionaily Average under pressure "blows up'" tolerance. (jumpy-nervous) (easily irritated). (calm) To,crates most Thrives unde~ pressure, pressure. Overall Evaluation in comparison with other employees, a~ a Definitely Substandard but Average Unsatisfactory making progress job. ~e:f ~n ~te !y Ou~s tand~ng above average. DEPA~£~,NT: GEORGIAN DXSPAT~I{ JOB TITLE: DISPATCHER PURPOS~ OF EV~UATION: To take a personal inventory, to pin-poin~ weaknesses and strengths and to o6tline and. agree upon a practical improvement program. This evaluation will provide a history of development and progresm. 1 - ACCURACY is the correctness of work duties performed. Covers all phases - profession, policy, 'procedures, responsibil Makes frequent Careless Usually accurat~ .errors. recurrent errors, average number ¢ mistakes .- I~--~qui~ ~n tittlc uup~rwi~ien: ~%e~uireG--a4~olUt~ mi~im~.. ~£ exact & precise most of time. -~u~erviTion. Almost always, accurate. 2 - ALERTNESS and Flexibiiity is the ability to grasp instruction, meet changing.conditions and solve'~roblem'.situations; Quickness to interpret. Slow to catch on Requires more than Average grasp average instructiOh, of instructions. Usually quick to EXceptiona~y understand & learn, keen and alert. .3 - JUDGEMENT the degree to which decisions or actions are sound; based on analysis of all circumstances. / Makes ~requent errors. Careless ~sua~ky ~cuxa%~ Exact & precise Almost always most of ti~el accurate. ~.m~loy~· gvaluation' form 4 - PLANNING and Organization ability to plan schedule; layout work and make effective use of resource materials. ., r ; Makes frequent Careless Usually accurat errors, recurrent errors. .4%v~c ~u,,~er. mictako~. Exact.& precise Almost always ~ most of tinle. . accurate. 5 - PERSONALI~ is an individuals behavior characteristics or his/her Personal suitability for the job.. Personality unsatisfactory Ques~°nabie Satisfactory 'for this' job. ' for this job. for this job. Very desirable " Outstanding personality ~ personality for this job.' for. this job. 6 - CO~4~ICATION$ (oral and written) ability to presen~ ideas clearly and concisely. Unsatisfactory Questionable for Satisfactory for this job. this job. for this job. Very desirable Outstanding for ~' for this job. this'job. 7 - DEPENDABILITY / Reliability is faithfulness in coming to"work. daily and conforming, to work hours. Following through on all ' phases of work (loyalty, etc.,) Often absent without Lax' in attendance and/or reporting ~ood--excuse and/or for work. frequently late. ' Uoually present and Very prompt Alwav~ - JOB KNOWLEDGE is the information concernimg work duties which ah ~£ndividual should know for a satisfactory job perfqrmance. Poorly informed Lacks knowledge ~Moderateiy about work duties, of some phases, informed. Understands all phases. 9 - QUANTITY/ Quality of Work is~the amount of acceptable work an individual does in a work day. does. nOt ,neet..D°es just enough ~Satisfac~ory minimum requirements., to get by. very industrious superior work 10 - STA/3~LITY is ~he ability ~o withstand pressure and to remain calm in crisis situations. "Goes to pieces" Occasionally Average under pressure "blows up" tolerance. (jumpy-nervous} (easily irritated)". (calm) Tolerates most Thrives under pressure, pressure.. Overall EvaLuation in comparison with other employees, at a trainin~ lcv' ~efinitely Substandard but' Average U~satis factory making progress job. ~e.finitely Outstanding above average. " : ~ , ! ~ Evaiuatiou prepared by: Approved by: Employee signatuze ~.~~ ~ DISSENT Re ' OPSEU (Courtenay) and Ministry of Healt~h ' GSB F,,ite No. 0912/88 I am unabie to-concur with the findings of ithe other panel-members. My two concerns relate to findings of the ·majority, regarding the November 1984 incident and the "white spots" incident of 1987. Firstly, t would like to comment on the November 1984 complaint. I am troubled by the decision to review and rule on a matter whi'ch was dealt with and resOlved by the parties back in 1984. As a result of that . complaint the Grievor, Mr. Fawcett,· Ms. Wilton and 'Mr. Rusk met to review the matter. At that meeting the two complainants agreed to withdraw their complaint. Because~-of the withdrawl, the allegations contained in the complaint .w~re neYer substantiated and in fact the testimony of all four people' who were in attendance supported this. in light of this I find it highlY inappropriate for an arbitration panel to review and rule on a complaint which occured several years earlier and which was settled by the ,parties. In my mind a decision to review a complaint which has been settled by the parties flies in the face of positive labour relations and could act as a. determent to parties attempting to resolve the simplest of issues. If parties to a collective agreement believe that these agreements, could be. set aside and substituted by the subsequent findings of an arbitration panel there will be little incentive to try to resolve matters, If the award of the arbitration panel can be substituted for an agreement between the parties it will kill the incentive for settlement. The ruling also raises questions as to whether there are two standards of treatment, one for bargaining unit staff and another for excluded staff. I could not imagine an arbitration board agreeing to review the previous conduct of a bargaining unit employee, where the parties had agreed to a resolution which favoured a bargaining' unit employee. Secondly, I am unable to find that the "white spots' incident of 1987 constituted sexual harassment. Given the above mentioned comments as well as the findings regard{rig the barrage of correspondence, I am unable to conclude that the "white spots" incident constituted sexual harassment. The evidence is resasonably consistent on this matter, in response to a comment from Ms, Graham ri~garding the Griever's sun tan Mr. Fawcett made a comment along these lines, "It isn't the tan, it's the white spots' that count." Comments such as these are inappropriate for an office environment and - Mr. Fawcett acknowledged this while giving' his evidence. However, I have difficulty concluding that this one comment Constituted sexual harassment for the following reasons: · Although the discusson at that time was about sun .tans and .the comments of Ms. Graham related to the Griever, Mr. Fawcett's comments were general in nature and were not specifically directed at the Griever, · The Griever never advised Mr. Fawcett of her displeasure with the comment so that he could have an opportunity to redress any perceived wrong, In fact, the Griever's concern did not Sudace/ until some time later when she complained to Mr, Rusk about the barrage of memos and in So doing included the white spots comment to support.her claim of sexual harassment, Sexual harassment is a serious issue which affects the lives and reputation of those' invOlved. It is therefore imperative that extreme care be taken in reviewing the.evidence before arriving at'a decision, In this case we had an excellent oppodunity to hear from a number of witnesses, most of whom work in the same office as the Griever and Mr, Fawcett. Those who were present at the time of the "white spots" incident testified that the incident was the only one that they could recall between 1985 and 1988. Was there a pattern of inappropriate conduct? The answer is cleady no. Having received evidence from numerous witnesses and from the Griever herself, they all stated that no such pattern existed. In conclusion I would like to state that this panel should not review matters which were resolved by the parties and in so doing make a finding that'is different from the agreement reached by the parties. Secondly, I do not believe that the one incident, i.e. the "white spots' incident' , constituted sexual harassment. For these reasons I am unable to agree with the findings of the other panel members, Horace Knfght, Member '