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HomeMy WebLinkAbout1992-0228.Pugliese.93-05-25 . · ONTARIO ~;..~ EMPLOY~SDELA COURONNE (~L/ · : ~[_, CROWN EMPL~,, EES DE L'ONTARIO ' ' · BOARD DES GRIEFS 180 DUNDAS STREET W~STo SUITE 21'O0. TORONTO, ONTARIO, M5G lZ8 TELEPHOf',IE/TELC~PHONE: (416) 326-1388 180. RUE DUNDAS OUEST. BUREAU 2100. TORONTO (ONTARIO). M5G 1Z8 FACSIIVilLE/T~'L~COPIE : (416) 326-;396 228/92 f under THE CROWN EMPLOYEES COLLECTIVE BARG~IN~N~ ~CT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN CUPE (Pugliese) , Grievor and - The Crown in Right of Ontario (Ministry of. Housing) Employer BEFORE: E. Marszewski Vice-Chairperson I. Thomson Member D. Montrose Member FOR THE R. Carnovale ~RIEVOR National Representative Local 767 Canadian Union of Public Employees FOR THE K. Billings EMPLOYER Counsel Miller, Thomson BarriSters & Solicitors HEARING~ November 20, 1992 Joe Pugliese, the Grievor, alleged that the Employer had violated Article~26.16 of the Cbllective Agreement by failing to re-imburse the Grievor for his legal fees pursuant to the MTHA's policy of legal indemnification for Employees. ~'The Grievor, a serviceman general for the MTHA, incurred .legal fees and expenses in order to defend himself against three charges of sexual assault brought against him by a MTHA tenant and later withdrawn when the complainant failed to appear in court. No oral testimony was adduced in this case as the facts were not in issue. The relevant facts may be Summarized as follows. On June 13, 1989, the Grievor was charged and arrested with three counts Of Sexual assault. According to the police statement, the complainant alleged that the Grievor attended her apartment on five separate occasions: May 10, May 15, May 18 and either May 23 or 24 to do some maintenance work..~On May 10, 1989, needed repairs were effected without controversy. However, the 'complainant alleged that on May 15, 1989, the Grievor put his arms Jaround her and hugged her.. on May 16 he forced her into the kitchen and took her hand forcing her to use.it to rub his crotch, Then, on May 18, the complainant alleged 'that the Grievor pulled her into the bedroom, put her on the bed, got on top of her, held her arms, took his penis out of his pants and tried to get her pants undone. He left when she started to ~cream and got free. Finally, the Complainant alleged that on May 23 or 24, the Grievor went back to her apartment to work in the bathroom at which time'he reached out and touched her brea, sts in full view of her seven year old daughter. When questioned by the police, .the Grievor totally denied the'occurrence of any of the alleged incidents except for the May 15th incident. The Grievor's denial is reflected in his statement as given to the police on June 13, In addition, the Grievor's account of the events of May 15 differed from the complainant's account. According to the Grievor, on May 15 he was down on the floor in the complainant's apartment tightening the bolts on the toilet the When the complainant touched him in the buttocks area. He'got up asking what was the matter. In thD.~Grievor's words, as reported in the police statement: "She started laughing, I touch her tits'and she ~tarted touching my prick you know, that it, thats it (accused excited - had to slow him down) Thats it. I finish, I go away." The Grievor apparently gave two other statements to the police, neither of which was filed at this hearing. The G~ievor did not want a lawyer when he made his Statements to the police. Moreover, on June 15, 1989, the Grievor was Unrepresented when he 'met with the Employer's representatives. At that time he gave 'a statement to the· Employer. The relevant excerpts from this statement read as follows: Next visit - remove toilet ->while tighten~ing bOlts on new toilet tenant grabbed Joe's buttocks. - Joe stood up asked what she was doing she beg~ntO - 4 - laugh and grabbed him between his legs. Joe .pushed her back (may have pushed her on chest - not intentional) - she continued to laugh Joe picked up tools - left unit and told Ernie she 'was crazy - Joe did not relate any other part of the incident NeXt visit - Joe rec w/o to check water leak I asked Joe why he-returned~to unit alone - he went just to check Problem and' report back to supervisor. - Left door open - she was in the~other room with her daughter - Joe is certain d~ughter saw him during that vis'it - Joe left unit -> nothing happened June 13 - police arrived and Joe was taken to the stati0n...told police the same story he has just related he was very nervous .at police station did not want lawyer The 'Employer also requested that the Grievor provide a copy of the statement which the Grievor had given to the police. However, further to advice from .his lawyer the statement was not provided to the employer. On September 29, 1989, Mr. K. 'Gaul, the General Manager of the MTHA wrote to Mr. G. Mammoliti, the President of CUPE Local 767, advising him that the MTHA Lega~ Indemnification Policy' for Employees was approved by the MTHA Board and would be applied to the members of the CUPE bargaining unit. On October 22, 1990, after the- complainant failed to appear in court, the criminal charges which had been laid against the Grievor were withdrawn. In February 1991, the Grievor, through his union, asked that the MTHA reimburse him for the legal fees - 5 - incurred in preparing his defence, which fees and disbursements totalled~ $2,074.00 and $1,090.'~30 respeCtively. The MTHADistrict Manager responded by writing to the Grievor on May 27 and asking for a copy of the Grievor's statement to the police. Mr. Bill Williams, President of the CUPE, Local 767, responded on'behalf of the Grievor on July 10, 1991, by writing to Mr. Gerald Potasky, Legal .counsel of the MTHA, as follows: Further to your letter requeSting a copy of the P61ice Report for Mr. Pugliese please be advised Mr. Pugliese has been instructed by his Solicitor not to release any further information as he has been exonerated by the Court. This 'should be-sufficient to warrant his legal expenses be re-imbursed by Metro Toronto Housing Authority. The employer denied the Grievor's request for compensation of legal .fees. The Grievor's lawyer responded by letter dated August 20, 1991, a~ follows: we have your letter of August'7th, 1991 addressed to Mr. Pugliese. We do not understand how .compensation for legal fees can be denied to Mr. Pugliese. The matter With which he was ~¢harged~arose out of his employment~ and'while he was employed. ~Mr.~ Pugliese was advised by his lawyer, Mr. Zeppieri not to release his statements to the Housing Authority. Certainly Mr. Pugliese should not be penalized for following his lawyer's instructions. His lawyer felt it would be prejudicial to his case to have Mr. Pugliese's statements released to anyone but the police. It should not be a condition for the payment of legal fees that the Authority has knowledge of the client's case provided that the charge arose out of his employment. The Grievor filed the grievance in. question on January 8, 1992. The Employer's Step 3 reply dated May 28, 1992i set out the Employer's position as follows: After a careful-review of all facts presented at the meeting and on a follow up, per your request, as to whether the security report proved any additional relevant information, Management has come to the following conclusion: Mr. Pugliese has not provided 'MTHA~ with sufficient information to change our position that he should qualify for reimbursement under provisions for indemnification as d~tai!ed in MTHA Legal Indemnification,Policy. The grievance is therefore denied.~ On November 5, 1992, management again asked the Grievor to provide a copy of the his statements to the police and that time the Grievor complied with the reqUest. However, the Employer did not change its position with respect to the.indemnification of the Grievor for.'his legal fess-~and expenses. Timeliness was not raised as an~ issue in these proceedings. The Employer took the position that the Grievor was acting outside the scope of his duties when the' incidents in question took place. Moreover, the Grievor did not provide the Employer with all the statements given to the police and the statement that he did provide was inconsistent and markedly different from the statement that he provided to the EmPloyer on June 13. If the statement given to the police was accUrate, then the Grievor had acted in bad faith when he made the statement to the Employer maintaining that he only touched the complainant's breasts by accident, in-an effort to push her away from him° Moreover, if the statement given to the police was accurate, then the grievor was acting beyond the scope ~of his employment as he. ought not to have been engaging in sexual conduct with tenants. In addition, it was pointed out that Paragraph (c) of the Conditions for Indemnification required the employee to ,,co-operate with the Housing Authority in any internal investigation of the incident that gave rise to the legal proceeding", but that the Grievor had in fact failed to co-operate. It was the position of the union that the Grievor was entitled to the reimbursement of his legal fees and expenses as the Employer had no basis for its refusal to reimburse the Grievor. It was argued that there could be no doubt that the Grievor was in the course of his employment as he was .tightening the screws to the toilet when he was assaulted by the complainant. When questioned by the Employer, the Grievor did not avoid the questions but answered them all without the benefit of union representation and with some handicap with the EngliSh language. Moreover, the differences between the statements to the employer and t° the police were not substantial. The Union framed the issue as whether the differences between the two Statements was significant enough to conclude that the Grievor acted in bad faith or was the author of his-own misfortune, or failed to co-operate by being untruthful. The Union pointed out that pursuant to the provisions of the Crown Employees Collective~ Bargaininq Act, this Board was, empowered to act in a fair and reasonable manner. MOreover,~ the MTHA legal indemnification pOlicy provided for the indemnification of legal costs in extraordinary circumstances ,where it is fair and reasonable in the cirCumstances.'' The relevant portions of the MTHA Employees' Legal Indemnification Policy read as follows: SUMMARY' This procedure covers the conditions under, which and means whereby and employee may be indemnified for legal costs when defending or .prosecuting an action arising within the scope of his/her employment. DEFINITIONS a) "legal costs" means lawyer's fees, disbursements and court costs. b) "legal proceeding!' means a criminal of provincial proSecution against an - employee, a civil action brought against an employee or an inquest, public inquiry or hearing before a board or other tribunal, except where that hearing is held under the grievance or arbitration procedure as contained within a Collective Agreement in which the conduct or the Housing Authority employee is called into question.- 'c) "employee" means a Metropolitan Toronto employee and includes a person who was a Housing Authority employee at the time of the incident giving rise to the legal proceeding but thereafter ceased 'to be a Housing AuthOrity employee. SCOPE OR INDEMNIFICATION Where qualified under ~this Policy, an employee will be indemnified by the -- 9 -- Housing Authority for legal' costs necessary_ incurred for the defence and representation of the employee in a legal proceeding arising from the performance of the employee's duties° WITHHOLDINGOF INDEMNIFICATION Indemnification may be refused where the employee was acting- in bad faith or outside of. his or her duties as an employee, regardless of the outcome of the action. cONDITIONS OF INDEMNIFICATION It is a condition o'f indemnification that: a) 'the employee notify his or her D~rector in Writing ~.of the legal proceeding as soon as- it becomes known .and, in any event, before retaining a lawyer. b) The employee obtain the approval of the Legal Counsel of the Housing AUthority to retain a particular lawyer at ~a rate or' fee that is in accordance with the policy of the M. inis~ry of'the Attorney General for the 'retention of Private sector counsel. An estimate for the action, stating the lawyer's hourly rate should be obtained. c) t'he employee co-oPerate with the Housing AuthOrity in any internal ~investigation of the incident that gave rise to the legal proceeding. d) The~ employee submit the 1-awyer~s bill to his or her Director for · ~ review by MTHA Legal Counsel prior to-payment and, where required by the Housing Authority, the bill is assessed by a court assessment officer. e) quarterly invoices should be submitted by the.employee. ACTIONS NOT QUALIFIED'FOR ~ - 10 - INDEMNIFICATION Indemnification will not be granted to an employee: a) where the legal proceeding relates to an employee grievance or to disciplinary action taken b~ the Housing Authority. b) where a claim that .may give rise to a civil action, is covered by the Government's general liability insurance policy and- legal representation will be provided for the employee by the insurer. c) where legal representation will be provided for the employee by a Government lawyer (such representation cannot be provided where the legal proceeding is a criminal or provincial prosecution against the employee or where a Government lawyer determines that he or she would be~ involved in a conflict of interest Situation) d) where the employee, at the time of .the incident giving rise to the legal.proCeeding,.was~ acting in his or her capacity als a private" citizen. OUTCOME AND INDEMNIFICATION Where the Housing Authority approves-the retention of a lawyer by an employee, indemnification will be provided in accordance with this policy (except under "withhOlding or ihdemnification") .regardless of the outcOme Of the legal . i proceeding. However, this does not apply where the employee misrepresented or concealled facts that would have led to the refUsal of indemnification and, if indemnification was paid in such a case, the employee shall reimburse the Housing Authority. for the amount paid out. EXTRAORDINARY APPROVAL FOR INDEM]~IFICATION The Chairman may, despite any provision or this policy, approve the indemnification of legal costs to an ~ 11 - employee where to. do 'so is fair and reasonable in the circumstances. The Grievor's entitlement in the first instance depends upon whether the legal'proceedings arose from the performance of the Grievor's duties or whether, at the time of the incident giving rise to the legal procedings, the Grievor was acting in his or her capacity as a private citizen. Secondly, if the Grievor was not acting .as a private citizen, did the Grievor disentitle himself from 'being indemnified by failing to co-operate with the Housing AUthority in any internal investigation of the incidents which gave rise to the legal procedings. Thirdly, did the Grievor disentitle himself by acting in bad faith vis a vis the Employer? It was~the Employer's position that the incidents which gave rise to the legal proceedings in question did-not arise ~from the ~Grievor's performance of his duties, but rather that in responding to' the-.complainant's advances, the Grievor acted as a private citizen. However, the facts as agreed upon by the parties suggest that the Grievor~was doing his job fixingl the toilet when the complainant started grabbing his buttocks. There is nothing to suggest that the Grievor initiated, invited or provoked such advances, we find that.the Grievor was in the performance of his duties when the incidents which gave rise to the legal Proceedings in question tOok place. Since the Grievor's Statement to the police suggested that the Grievor participated in a voluntary sexual exchange with the complainant, was the empIoyer's assertion - 12 - that the Grievor acted as a private citizen warranted? Even taking into account the Grievor's ~admissi6ns as set Out in the police statements and entered into evi~dence, we are unable to conclude that by briefly reciprocating the complainant's advances the Grievor stepped out of his employee role. Rather, the Grievor reaCted momentarily in a less than commendable fashion to a very hUman situation, but then immediately extricated himSelf from the situation by leaving .the premises. An employer cannot expect perfection_from his empioyees, but rather a standard of conduct which might be expected from a reasonable man, a standard which might occasionally be graced by blemishes and imperfections° Obviously, this conclusion is not meant to applY to a situation in which an employee~initiated sexual advances towards a tenant, o~ worse, if.there had been an attempt to sexually assault the tenant. Although in .this case the Grievor was charged with sexual assault, the complainant's allegations of sexual'' assault were dropped and the charges against the Grievor were eventually withdrawn. The court.hearing was re-scheduled three times but the complainant failed to show in court each time'. The~e is no evidence whatsoever in the ~nstant case sUbstantiating the .allegations of sexual assault. In the circumstances we are unable to find that the Grievor either initiated sexual advances towards the complainant or sexually assaulted her. We therefore also cannot find that the'Grievor acted outside the the scope of his duties aS an employee. Did the Grievor disentitle himself from being indemnified for his legal fees and expenses by acting in bad faith towards the employer? The Employer's allegation of bad faith is based upon the submission that the Grievor did not truthfully recount to the Employer the incidents that, occurred between himself and the Complainant. The discrepancy between the statement made by~ the Grievor to the Employer and the statement made t°~the Police was pointed to as proof of the Grievor's bad faith towards the Employer. There is no doubt that there is a discrepancy between the two statements. The Grievor tried to make the employer believe that his only contactwith the complainant was that he accidentally hit her breast when he was trying to extricate himself from her advances. However, the Grievor admitted to the police that at least momentarily he reciprocated the Grievor's sexual advances. Is this discrepancy sufficient to support the Employer's allegation of bad faith? The Union.~argued that the Grievor was unrepresented by the Unio~ or by Counsel throughout. Moreover, it ~pOinted to the Grievor's inablility in English as an additional handicap which ought to be taken into account. 'The Union argUed.that the two factors should diminish the significance of the discrepancies between the two statements and the Grievor should receive the benefit of the doubt. - 14 - ~ The Employer bears the burden of proof with respect to the ~allegation that the Grievor acted in bad faith vis a'vis the employer-. Although on the basis of the agreed, faCts presented to me by the parties, the~ Grievor did not tell 'the Employer the same 'story that he had told the police, we are unable to find that the Grievor acted in bad faith towards the Employer. A finding of bad faith would require a finding relative to the individual's motivation to deceive the Employer. I~ this case, the Employer neither imposed any discipline upon the Grievor .nor alerted him that discipline might be imposed in the event of any recurrence Of a similar incident. Evidence or agreed facts which require a board of arbitration to ,guess' that an employee acted in bad faith are surely insufficient to base a finding of bad faith. We are unable to find that the Grievor acted in bad'faitht°wards the-employer in this case. Th~ last question which remains to be answered is whether- the Grievor's failure to provide the employer with a copy of his statement to the police_ constitutes a failure to~ co-operate with the EmPloyer ~hereby disqualifying the Grievor from being indemnified fOr his legal fees and disbursements. The. employer agreed that a copy of the policestatement was finally delivered to the employer prior'to his hear'ing and that the Grievor had not provided a copy of the statement to the employer earlier as he was following the advice of his lawyer. While it is clear that the £ Grievor did not 'co-operate quickly or readily, he did eventually provide the emplOyer with a copy of his statement to the police. In the circumstances, we are also, unable to find that the Griever failed to co-operate ~with. the employer within the meaning of that' 'phrase for the purposes of interpreting the employer,s indemnification policy. ,This Board has considered.the facts as agreed upon by the parties as well as the submissions of both parties in this case, and for all of the reasons set out above finds that the Grievance must succeed. This Board remains seized of this matter in the event of any questions that might, arise with respect to the implementation of this award. Dated at Toronto this 25thday of May, 1993. Eva E~ Marszewski - Chairperson I./~oms~n - Union Member · Montrose~- Employer Member