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HomeMy WebLinkAbout1992-0889.Koh.94-02-14 }~'~~ r --,._-- ~ '[ r,.:. ,.-...... r-...___.... , ONTARIO EMPLOYES DE LA cOURONNE ~ ?: CROWN EMFLOYEES QEL'ONTARIO 1111 GRIEVANCE COMMISSION DE , - ".' SETTLEMENT REGLEMENT . BOARD DES GRIEFS 18C,. DUNDAS STREET'WEST SUITE 2100 TORONTO ONTARIO, MSG U8 TELEP.HONEITElEPHONe (476) 326-1388 180 RUE DUNDAS OUeST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMIlE /TEUtCOPfe (416) 326-1396 889/92,1903/92 IN THE MATTER OF AN ARBITRATION Under .THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before 'THE GRIEVANCE .SETTLEMENT BOARD BETWEEN \ OPSEU (Koh) Grievor - and- The Crown in Right of Ontario (Ministry of Health) Employer BEFORE: W K~plan Vice-Chai~~rson I Thomson Member F Collict Member FOR THE A. Ryder UNION Counsel Ryder, Whitaker, Wright Barristers & Solicitors FOR THE J. Crawford EMPLOYER Deputy Director Legal Services Branc~ -. Ministry of Health ,I HEARING January 13, 1993 June 9, 16, 30, 1993 July 5, 6, 1993. November 26, 1993 December 10, 14, 1993 ( - _....;,. .., 2 " ;~ ~ Introduction \ This case concerns the 1992 termin~tion grievance of Chong Koh, a Laboratory Technologist 1 employed by the Ministry of Health at the London Health Laboratory (hereafter "the laboratory") The grievor has worked for the Ministry since 1974, and has been employed at the laboratory since 1978. He was terminated on March 27, 1992 The grievor's case proceeded to a hearing in, Toronto After these proceedings 'began, and at the request of the parties, 'it was decided to consolidate another grievance with the instant on~ By a grievance dated August 24, 1992, ,Mr Koh alleges a violation of Article A of the- Collective Agreement and seeks by way of remedy a thorough investigation of his complaints of raCial and sexual harassment. Evidence with respect to this grievance was also heard In brief, it is the Ministry's position that the grievor was dismissed for cause, and that there has been no violation of Article A of the Collective, Agreement. The union takes the position that there was no just 'cause for the dismiss;il,and that in failing to address the grievor's aliegatlons of racial and sexual harassment, Article A of the Collective Agreement ha$, In fact, bef!n violated~ The evidence in these proceedings involved a senes of events which took place over a number of years. The' hea.ring was, accordingly, long and drawn-out. For the convenience of witnesses, some of the evidence was heard' out of turn. For the purposes of this award, the , order of the evidence has been reorganized. Needless to say, the substance of that evidence has not been changed The Employer's Case Evidence of Susan Grunwald Ms. Grunwald testified She is employed at the laboratory and occupIes the f;....... , 3 $' positiono'f Senior Technologist in the Environmehtal Section Although It is 1 simplistic to describe the laboratory as organized into two sections, the Environmental Section and: the Clinical Section, it is satisfactory to do s6 for the purposes of this award. In each section, a number of bench technologists report to a Senior Technologist who, in turn, reports to a Head Technologist.. The two Head Technologists report to the Director of the laboratory The laboratory is located on a single floor There are a number of shared rooms and facilities joined by a common corridor Whether employees are assigned to one section qr the other, they come Into frequent contact with one another '. Ms Grunwald has been employed at the laboratory since 1976 In 1986 she won a competitiol1and> was promoted to the Senior Technologist position She began tbeseduties in April 1986 The grievor was also a candid-ate for this position He lost the competition and filed a grievance The employer reran the competition The grievor and Ms. Grunwald both competed in tne rerun and the job was again awarded to Ms. Grunwald The grievor filed another grievance, but that grievance was dismissed. I ( In tne meantime, Ms Grunwald continued to occupy the Senior Technologist position I Ms. Grunwald testified that she had worked on and off With the grievor i , between his arrival at the laboratory and the 1 986 competition Both the grievor and Ms Grunwald were bernch technologists assigned to the Clinical Section. When Ms. Grunwald was appointed Senior Technol()gist~ she moved to the Environmental Section Between 1986 and the grievor's dismissal 10 1992, Ms. Grunwald and the grievor worked together for only one week In June 1986, both the Head and the Senior Technologist in the Clinical Section were absent, and Ms. Grunwald was placed In charge In t~at capacity she - - - Co 4 ! .o~ was responsible for assigning and reviewing the grievor's work. Ms Grunwald testified that the grievor was having difficulty in growing a certain sample, and she told the Board about her efforts to assist him in , this respect. The details of the incident in question, which took place over the course of a number of days, need not concern us. S!Jffice it to ~ay that Ms. Grunwald succeeded in growing a certain culture and thegrievor did not. Ms. Grunwald testified that the grievor made a procedural mistake, but instead of accepting that, he accused her of altering his work with a red wax pencil, Red wax pencils are used to markup lab plates. Ms Grunwald testified that she did not alter the grievor's work. Hereafter, this Incident will be referred. to as the "June 1986 red wax pencil incident." As already noted, apart from this one week, Ms. Grunwald and the grievor did not work together between ,1986 and 1992 They would, however, ,come , into fairly frequent contact because of the shared facilities. Ms. Grunwald testified that beginning~in June 1 9'86, after she had supervised the gnevor :1 for one week and the red" wax pencil incident had occurred, the grievor began to refer continually to his red wax pencil. If Ms Grunwald walked into a room Jwhere the .grievor was present, he asked\ out loud, "Has anyone seen my red wax pencil?" Sometimes, he asked out loud, "Do laboratory technicians know how to use a red wax pencil?" As time went on, the grievor began to tap his chest pocket, where lab technicians keep their pencils, every time he saw the grievor Ms. Grunwald testified that incidents of this kind occurred on almost a daily basis and were witnessed by many other laboratory employees Ms. Grunwald testified that she found this behaviour upsetting, demeaning, and increasingly stressful. After the grievor made his comments or patted - -..---, ~~ .. ~ .... -.,.".. " ~ 5 ~- his chest, all the other 'employees would look at her On one occasion, in an . , I' ultimately futile attempt to bring these references to an end, she answered' the., grievor'squeStibn by saying, "Here is your red wax ,pencil" and giVing the grievor a pencil Ms-Grunwald testified that this strategy ,failed and that the grievor continued to pat his chest pocket whenever he saw her Ms ) Grunwald avoided the grievor whenever possible, and w~nt so far as to check the corridor for him before leaving her work area Ms. Grunwald testified, that the intensity and frequency of these encounters began, over the years, to increase Thegrievor would stare her right In the eye when he patted his chest. She frequently found hhn giving her hostile looks. In 1991, when the 'two were working in the same area., Ms Grunwald - would look up to find'the grievor staring at her The grievor began to follow M~. Grunwald from one room to the next, always asking out loud if anyone had seen his red wax, pencil. If the grievor saw Ms. Grunwald walking down 1 the hall, he would stop wa'lking and begin patting his chest. He would I continue doing so until Ms Grunwald left the, corridor Even it the grievor I' I was talking to someone else, ,he w0uld stare at -Ms. Grunwald There were other incidents as well Ms. Grunwald testified that the grievor charged her, on a second occasion, with altering his plates. At the staff Christmas party in December 1990, the grievor approached her and put his face close to hers and made a derogatory comment. On, other occaSions, the grievor would refer to "apple polishing" and "shoe shining." Ms Grunwald testified that the purpose of these comments was to indicate to her and other employees that she got her promotion dishonestly At general staff meetings, the grievor would ask such questions as "How do people get ahead?" "Do we have to' use red wax pencils to get ahead," and "Do we have g' - 6 to lie to get ahead?" Ms Grunwald testified that she believed these questions were, in fact, veiled comments directed at her At one staff meeting, the grievor saw Ms. Grunwald enter the rQom and quickly got up, from his chair and rushed to sit dbwnin a chair that had been specificallY reserved for tier Hereafter this will be described as "the chair incident." At the time in question, the summer of 1991, Ms. Grunwald was conducting some tests in the, HIV Room,and this chair had been reserved for 'her at the back of the room so she could come and go as necessary There were other incidents as well, described in ,some detail in the evidence In August 1 991 Ms. Grunwald began to rotate throughout the lab, having previously been assigned to the HIV Room, and her contacts with the' grievor increased When she worked in the Envlron'mental Section she came into frequent contact with the grievor, as the Environmental and: Clinical, Sections shared common space. Sometime in 1991 Ms. Grunwald was walking down t~e corridor with Mr Don Cole Mr Cole was, at the time, the Senior Technician in the Clinical Section and was also the grievor's direct supervisor In any case, as Ms. Grunwald and Mr ~ole were walking down the corridor in one direction, the grievor was walking in the other When he passed Ms. Grunwald the grievor said !'cunt." Ms. Grunwald asked Mr Cole if he had heard wha~ she had heard, and Mr Cole said that he had In the fall of 1991 Ms. Grunwald testified that another incident took place in the corridor This time the grievor called Ms. Grunwald a "fucking cunt." Mr John Aldom, the Head TechniCian In the Clinical Section, did not hear these words, but he happened to be walking down the corridor at this time, and Ms. Grunwald testified that he could see the grievpr lean towards her and say something. She testified that Mr Aldom could see she was upset by I ~ i!?' ) 7 the incident; which she Immediately described in detail to him Ms Grunwald testified that the grievor; on at least one other occasion, called her a "fucki~g' cunt" 'I In 'October 1.991 Ms. Grunwald was walking down t~e hall when the. gn~vor approached her He began to make masturbatory motions with his hand In front of his groin Ms. Grunwald testified that she was stunned by this conduct and felt afraid. On November 4, 1991, Ms. Grunwald was walking down the corridor and thegrievor was coming in the other direction He stared right at her, patted his chest pocket where he kept his red wax pencil,and then reached down to his groin and grabbed 'his genitals He then tapped his poc~et a second time and again grabbed his genitals Ms, Grunwald testified that the grievor kept staring at her throughout, maintaining a very hostile look. r After this 'incident, Ms~ Grunwald went to speak to her supervisor, Head Technician SusanSalhani Ms Grunwald told Ms. Salhani everything that had happened. Ms. Grunwald then reported the incident to the Director of the Lab, Dr A. Chagla. Dr Cbagla asked Ms Grunwald to submit a wntten complaint and; on November 5, 199:1, she did so. It reads as follows: Dr Chagla Since I was awarded the senior tech position Mr Koh has been verbally harassing me It seems as time goes on the 'harassment is getting worse This verbal harassment is almost continuous at times when lam in the vicinity Over the last few months Mr Koh has started to say obscene things as I go by and then in the last few weeks he has started using lewd gestures. .' '-.' .., 8 - Mr Aldom is aware that he has been harassing me One day as he came out of the office, he saw Mr Koh turning around saying something as I walked by him, but he did not hear what it was. Later he questioned me on this and I informed him of the obscene remark Mr Koh made tome Mrs Salhani has witnessed Mr Koh's continuous verbal harassment of me on many occasions. Mr Cole has also witnessed this, asl am sure many other staff have I find the verbal' harassment to be extremely stressful, but as it has escalated, to obscene and'sexual harassment I find' this very frightening~ I now feel threatened by Mr Koh. The. latest incident occurred on Nov 4/91 at approx 2 45 pm. As Mr Koh approacheat me in the hall, he made obvious lewd gestures with this hands. I immediately reported this to my supervisor Mrs Salhani and then to Dr Chagla when he became aivailable '10 mins later Since the situation has progressively worsened, I am requesting your immediate intervention The law requires that I be allowed to work in an environmentfree,\ from harassment. b On November 6, 1991, DrChagla advised Ms. Grunwald that he required \ further details Ms. Grunwald wrote another letter dated November 6, 1991 As stated in my previous letter Mr Koh's harassment has. escalated in recent weeks On a few occasions as Mr Koh has passed me in the hall, he has uttered the words "fucking cunt." As I am the only one near him I have assumed it was directed at me On one occasion John Aldom walked out of his office and saw him say something to me Because of Mr Koh's demeanor, John called me in to ask what he had said In the last few weeks Mr Koh has made obscene, gestures \ towards me on two different' occ. On the first occasion ~ ~ 9 I .~ as I walked by him he he made masturbatory gestures with ,his hands I did not report this incident, thinking ttl'at it wouldn't h~ppen again, but it did the next week On Nav 4 Mr Koh groped at his genitals as he was walking by me I could tell it waS quite intentional because he did ,it two or three times while looking directly at. me At the same time he patted his, chest pocket in reference I to a past incident to which he refers to on a continual basis [emphasis in original]' I trust that this informaition will help to clarify the situation Ms. Grtmwalq tE!stified that after submitting these twp letters, Dr Chagla informed her that there wo~IQ be an investigation . Ms. Ilona Ferrari was assigned to trne investigation, and on November 9, 1991., Ms. Grunwald provided a statement to her This statement set~out the background,to this case, and also indicates that Ms. Grunwald understood, that Dr Chagla raised the complaint with the grievor immediately after Ms. Grunwald .fiied her complaint. She testified, however, that throughout the fall of 19901 and winter of 1992 thegnevor continued to pat his chest pocket and to refer to red wax. pencils Ms ., Grunwa'ld indicates in her written statement to Ms. Ferrari that she views this ,as sexual harassment "because of him using this gesture when he groped his genitals." Ms. Grunwald testified that prior to November 4, 1 991, she never confronted the grievor because she was afraid of doing so She testified that she did not know how he would react, and she was concerned that if she did say something it might make the situation worse In Ms. Grunwald's, view, the grievor appeared to be obsessed with her, and she was concerned that he ; ---~-- -----;---, ~~ 10 I --;... might start bothering her at home She testified that she never baited the grievor, and while she attempted for a short while to defuse the situation by offering her red wax pencil whenever he asked for one, she quickly abandoned that approach when she determined it was not working Ms. I ~ Grunwald also testified that she never said anything obscene to the grievor ( or made any obscene gestures to him. All she did was attempt to aVoid him. Ms. Grunwald was asked about a petition she and thirteen other 'employees signed in August 1988 (hereafter "tl:le August 1988 petition") The, ,petItion is, in fact, a letter from Mr Cole to the then Director of the laboratory, Dr ItS. Maharajah. The letter states: Due to the conduct of one person, Mr C. Koh, working conditions in the laboratory ~ave become'almost impossible for many of the staff His continued day-after-day arguing and harassment tac~ics are upsetting to fellow staff members, causing unwarranted and unnecessary stress while they are trying to perform < their daily' work. assignments. I, personally, believe there is an obvious deterioration in the quality of work put out by this laboratory, in particular, the Microbiology se~tion,since Mr Koh was ;" transferred here. I can only attribute this to the negative atmosphere created by Mr Koh, as when he is absent there isa noticeable, happier and more productive attitude amongst my' co-workers ,\ I truly believe the rights of the majority of the employees of this laboratory to have a pleasant, catm, down-to-business working atmosphere are daily being violated. When your staff is reduced to tears and appeal to you to do something, there definitely must be a problem No easy solution to this problem can be offered other 'i - I' J 1 1 ~- than Mr Koh's ultimate separation frOrTLPUr laboratory should this-situation continue following whatever disciplinary 'action you take This situation has continued much too long, and requires a decision soon, for the well being of everyone' concerned Ms Grunwald testified that she signed the petition attached to this letter in order to indicate her ,agreement with its contents. She also testified that since the, grievor's discharge, the atmosphere in the laboratory has dramatically ,improved. Not only does she feel safe and secure in going to I work, but employee morale is much higher than in the past. ~ Cross-Examination of, MS. Grunwald Ms Grunwald testified that prior to the June 1986 red wax pencil, incident, she had no feelings about the grievor one w~y or the other and had hardly any dealings With him. She testified, however, that the grievorhad filed several complaints about her work with management between 1 978 and 1986 These complaints ,were inves1i1gated. and found to be groundless Ms Grunwald was asked .alotofquestions about the June 1986 red wax pencil incident and about some notes she took with respect to that incjdent which wereintroduc~d:, into evidence She agreed that those notes documented mistakes made by the grievor, and she testified that she made those notes on the instructions of Dr Maharajah Ms Grunwald agreed that these notes were taken after she was awarded: the Senior Technologist position, and after the grievor had filed a grievance With respect to that competition While Ms. Grunwald did not know what the outcome of the grievor's grievance would be, she agreed that It potentially placed her promotion In jeopardy She agreed that these notes, which were critical of the grievor's performance, were taken du.ring the one opportunity she had to supervise the grievor after he filed his grievance Ms. Grunwald pointed out, however, - --- - - -- -- -- ---- --- - --~-~- - 12 that the grievorclaimed at the end of the week that she had altered his, \ I plates, and it was after receiving this accusation that, at the Director's request, she prepared her notes. Ms. Grunwald agreed that her criticisms of the grievor's performance pre-dated the grievor's use of the term "red wax pencil II Ms. Grunwald did not agree, however, that she initiated the use of that phrase, nor that she' had ever patted her chest. Ms. Grunwald denied the 1 7 suggestion that other employees had seen her bait the grievor Ms. Grunwald agreed, that various members of ,management were aware of the problems she was experiencing with thegrievor between 1986 and his discharge in 199~ Ms. Grunwald was not aware of any empl9yer actions to deal with this problem until ~he filed her November 1 991 complaint. Ms. Grunwald was asked a number of questions about"the lIcu'nt'i and "fucking cuntll incidents. She agreed that the only witness to the "cunt" inCident was Mr Cole, who had, in August 1988, initiated a petition against the gnevor With respect to that petition, Ms. Grunwald testified that its purpose was to improve the situation, not to get rid of the -grievor Ms Grunwald was \ ,asked about the incident at which Mr Aldom was present and, in particular, about an inconsistency in her statement and his. Suffice it to say that Mr \ Aldom -places the incident at one part of the corridor, while' Ms. Grunwald places it at another Having heard the evidence of both Ms. Grunwald and Mr Aldom, we attach no significance whatsoever to this immaterial inconsistency Ms. Grunwald was asked why she could not recall exactly when the grievor first said something obscene to her She reiterated her evidence that It ...0. -, , 13 "f";:/ 'occurred sometime. in 1 991 She believed that it occurred in the' late summer or early fall To the best of her recollection, all of these incidents took place within a' few weeks. Ms. Grunwald agreed that her first formal I complaint to management was in November, but she pointed out that Mr Aldom was aware of the problem some time before that. It was suggested to Ms. Grunwald that management did not intervene because she "was giving as much as she got" in her interactions with the grievor Ms. Grunwald denied this suggestion She did ,not have an explanation whyMr Cole and Mr AJdom were the only two witnesses to the obscene comments, and she agreed that there were twenty.four employees in the laboratory Ms Grunwald. was asked why she did not immediately report the grievor for making a lewd gesture, and she testified that thehatassment had been \ going on for so long that she just ignored it. When another gesture followed soon thereafter, she feltcshe could not ignore the problem any longer Evidence of Don Cole Mr Cole testified Now retired from the public service, Mr Cole was 'employed at the laboratory for thirty years. The grievor reported to him, and h.e, in turn, reported to Mr Aldom Mr Cole described the grievor as a very difficult employee According to Mr Cole, the grievor" was never receptive to suggestions, nor was It ever possible to have' a normal conversation with him. Mr Cole's relationship with the grievor I deteriorated to the point that he finally arranged for the grievor to report directly to his superior, Mr M Chainauskas, who retired in 1987 When Mr Aldom arrived in 1988 to replace Mr Chainauskas, the grievor was instructed to report directly to him I Notwithstanding this reporting relationship, Mr Cole was still required, , I " , I v'. :.=,\ "4 - from time to time) to interact with the grievor. He would periodically h!3ve to instruct him to do certain things. On these occasions he found the grievor less than cooperative Sometimes Mr Cole would perform the task himself rather than ask the grievor) in order to avoid a co.nfrontation Mr i Cole testified that the grievor made it quite evident that he considered his, I I Mr Cole's) educational background inferior The grievor called Mr Cole "stupid" in front of the staff He also heard the grievor say that he, Mr Cole, was "uneducated~" Mr Cole studied at university but did not complete his degree "- Mr Cole was the Senior Technician in his section" while Ms. Grunwald was, after 1986, the Senior Technician in her section. While the' two never worked together, they frequently took. their lunch and coffee breaks at the same time. Mr Cole testified that Ms. Grunwald was continually upset about the treatment she was receiving from the grievor Mr Cole was very familiar with the grievor's daily references to red wax pencils, and his tendency to pat his chest whenever Ms. Grunwald was around Mr Cole testified that every laboratory employee knew what message the gnevor was attempting to ~onvey Mr Cole also testified that the grievor made many references,for the same reason, to shoe and apple polishing Mr Cole I suggested to the grievor on several occasions that he desist, but these ! suggestions were never accepted. One time, the grievor accused Mr Cole of coming in on the weekend and tampering with his work. Mr Cole wrote the August 1 988 petition set out above He then circulated it to employees He testified that he took this action because so many employees were approaching him asking that something be done The petition did not achieve any of its desired effects. In May 1989 the' gnevor -, 15 I ';>:. was suspended Jor three days Jor: refusing to. .follow Mr Cole's InstruCtions \, The details of this suspension need not concern us. '( With respect to I Ms. Grunwald's formal complaint~,Mr Cole testified that he r heard the grievor Gall Ms (Jrunwald a "cunt" one day when they were walking down the hall together On another occasion, Mr Cole was in the, hall, but , could not' be seen by Mr Koh On this occasion he heard the grievor call her a "fucking cunt." Mr Cole testified that sev~ral employees told him they were afraid of the grievor and were concerned he might attempt to hurt them. Thegrievor frequently got into confrontations with other employees, and he would shout and look angry Mr Cole never saw Ms~Grunwald pat her pockets or refer to red wax pencils: unless she actually needed one 'Mr Cole ,never heard Ms. Grunwald. make any derogatory remarks to thegrievor e According to Mr Cole, the grievor'sbehaviour negatively affected the entIre laboratory In his view; the grievor created so much tension that many employees could not stand coming to work. Mr Cole was still at work when the grievor was dismissed, and he testified that the -atmosphere in the laboratory changed dramatically after the grievor was gone It reminded him of what the laboratory had, been like before Mr Koh arrived. Cross-Examination of Mr. Cole In cross-examination, Mr ,Cole testified that his position is now held by Cathy Johnston. Ms. Johnston and the grievor live together, and Mr Cole testified that to, his knowledge the grievor and Ms. Johnston have always -got along. Mr Cole was asked abollt the August 198.8 petition, and he testified that his purpose in writing It was to obtain action, not the grievor's. dismissal Mr Cole tesbfied that all the technical staff in the I ,~ 16 -<: laboratory, with the exception of Ms. Johnston, signed the petition, and that it was these employees who initially approached him and asked him to raise the matter with management. Mr Cole identified a number of these employees Mr Cole agreed that he has known abo~t the red wax pencil problem for a number of years. He testified that Mr Aldom has known about it since he arrived at the laboratory, as have bot~ Dr Maharajah and Dr Chagla Mr Cole was with Ms. Grunwald when the grievor first called her a "cunt. II \ This was not the first time he ,had heard the grievor use profanity On May 29, 1987, he wrote to Mr Chainauskas complaining about the grievor's regular use of profanity in the workplace The grievor primarily used the words "fuck" and "cunnilingus." Mr Cole asked the grievor to stop, and when II he did not he raised the issue with his supervisor On June 22, 1987; in response to this complaint and, another complaint by a staff .member that the grievor was making harassing comments about her, Dr Maharajah sent the grievor a "formal record of non-disciplinary counselling" The, letter, among .other things, instructs the grievor to stop using profanity at work In Mr Cole's view, the grievor's comments to Ms. Grunwald were even more ( serious because they were directed at a particular individual Mr Cole was asked why he would wntea complaint letter about the grievor in August 1988, but not do anything In 1991 in response to what he had just described as a more serious incident. He testified that Ms. Grunwald told him that she was going to report It. Moreover, in 1 988, Mr Cole was responding to a request from 'subordinates Ms. Grunwald was his equal, not a subordinate Mr Cole agreed that he did not include this fact in his statement to Ms. Ferrari. Mr Cole confirmed Ms. Grunwald's evidence that J rr.~ -,1: ~ '" \, 17 I .;"" \ the profanities he witnessed were uttered within several' weeks of each other He believed that the grievor first called ~s. Grunwald a "cunt" In September or October, and that the reference to "fucking cunt" came several' weeks later Mr Cole agreed' that in his written statement he said he heard the grievor say "cunt," but only "believed " that he heard the grievor say "fucking cunt." In his evidence, he insisted that he heard the- grievor say both things Mr Cole agreed that he knew another employee named Robert McNamee Mr McNamee works in the stock room. On one occasion in January or February 1992, Mr Gale was riding ,down the elevator with the grievor and Mr McNamee On this occasion, Mr Cole said something like "better watch out ! for yellow snow " Mr Cole testified that this comment was not directed at the grievor He explained that this was an old Joke It had something to do' with skiing and not eating any yellow snow Mr Cole was asked if h~ referred to' yellow snow on another elevator ride with Ms. Grunwald In attendance, and ihe testified that to the best of his recollection he referred to yellow snow only once, and that was the time he rode the elevator With the grievor and Mr McNamee Mr Cole was not aware- that thegrievor had filed a discrimination complaint with respect to it. Hereafter, this WIll' be referred to as the "snow incident." Evidence of John Aldom I Mr Aldom testified. He has occupied the position of Head Technologist In the Clinical Section since September 1988 He has an extensive educational and laboratory background Mr Aldom testified that Mr Cole, who reported to him, was responsible for maintaining the routine bench procedures The t grievor, as a bench technologist, was responsible for performing routine ~~ I 18 " ...~ duties such as tests. Fairly soon after Mr Aldom arrived on the scene the grievor came to see \ him and recited his past grievances in considerable detail He listed complaints against ,members of management and most of the other ! > employees. He made allegations of specimen tampering, changing, of i I reports, and promotions based on favouritism. Mr Aldom, who~ was new to the laboratory, than~ed the grievor for the briefing and told him that he, Mr Aldom, was now in charge, he advised the grievor that ,he should look to, the future,not to the past. Mr Aldom had also been brought up, to date by Dr Maharajah; and it quickly became apparent to him that it would be a challenge to bring peace to the laboratory Mr Aldom participated in the rerun of Senior Technologist jobcompetitlori that had initially been 'fIon ,by Ms. Grunwald. He testified that he was very l familiar with the duties and responsibilities of the position, and that Ms. Grunwald won it easily The grievor, however, still felt that the wrong 1 person had been chosen. When Mr Aldom arrived at the laboratory, reporting relationships were in some disarray It became clear that the relationship between Mr Cole and thegrievor was not working out. Ultimately, because the grievor regularly challenged MrCole and questioned his competence and qualifications, Mr Aldom took responsibility for the direct supervision of the grievor Mr Aldom testified that, in his view, Mr Cole was a highly exp~rienced employee While Mr Cole might lack some credentials, for his type of work experience was the most important factor . 19 9;,; ~ 'Mt Ald6m testified. that' there was apparent hostility between the ,grievor and Ms; Grunwald. -He attributed this hostility to the fact that the grievor could not accept that Ms. Grunwald had been promoted and he had not. The grievor regularly complained about Ms. Gr.unwald, and Mr Aldom was aware of his activities with respect to the, red wax pencil, not to mention hiS statements about apple and shoe polishing Mr Aldom felt that the gnevor's statements about the red wax' pencil, and his habit of patting his chest, created a ,great deal of tension in the laboratory Mr Aldom prepared' thegrievor's performance appraisal for the, period , September 1988 to March 1989 The grievor was rated "beloW standard it In that part. of the appraisal reserved for employer comments, Mr Aldom wrote There is along and complex history of conflict and distrust with fellow employees over several ye~rs Allegations which Chong has made about fellow staff and management are serious if true, and insidious, if not. Regardless of whether they are true ,or not, Chong is convinced tney are, and is very suspicious of his fellow staff members and supervisors. This causes, him, to be extremely careful in protecting his work, and reputation and very defensive toward others. - During the period of my supervision, I have sought to counsel Chong to put the past behind him~ and, assure him that as much .as is humarnely possible, all members of the staff will be treated fairly and equally, but I am not prepared to conduct a "witch hunt" into the past percei'ved wrong-doings. If Chong can accept this counsel and abide by these terms, I believe we are well on our way to resolving what has been a serious and long-standing problem. ~---- -- W /';'1 20 ~:::- I am quite satisfied with Chong's knowledge and ability in all laboratory methods and principles. In that part of the appraisal r~served for employee comments, the ~rievor '.-. wrote "I do not agree with portions of the appraisal" Mr Aldom testified that when he 'first drafted this appraisal he used the word "libelous" to describe the grievor's allegations, bl!Jtlater, upon reflection, changed it to "insidious" I Notwithstanding his suggestions, Mr Aldom testified that the grievor I, continued to dwell on past events Mr Aldom is of the view that the grievor has a good technical knowledge, but his job ,performance is negatively influenced by his inability to get along with his fellow employees According to Mr Aldom, this problem persisted. On his performance appraisal covering the period April 1, 1990, to March 31, 1. 991, the grievor again is rated "below standard." The appraisal notes that the grievor continued to criticize Mr Cole openly and goes on to observe. Mr Koh isa very difficult, individual to' supervise His written and spoken complaints against fellow employees and supervisors are frequent and are ~usuajly rela.ted to past grievances. What is particularly disturbing and odious about these complaints is that along with the reported "infractions" or "errors" is an accompanying diatribe against the person's integrity, competence or motives~ As a result, the general staff reaction_ to Mr Koh is one of distance, indifference and in some cases hostility, which affect the general staff morale On that part of the appraisal reserved for employee comments, the grievor wrote "I do not agree with the assessment. I will write complete comments dependi~g on the grievance result." I - ::< 21 9:'''' ~r Aldom testified that notwithstanding all /lis advice to the grievor to forget -the, past, the grievor would still frequently approacn him with both new but mostly old complaints. The only person the grievor got along with was Ms. Johnston Mr Aldomcould not recall any problems between the, grievor and the office clerical staff In terms of his own relationship with the grievor, Mr Aldom testified that for the most part the grievor " cooperated With him. However, whenever Mr Aldom was away from the laboratory for a 'few days, he would be greeted, on hIS return, with a long list of the g,rievor's complaints He ended. up spending' many hours, often on \ a daily basis, attempting to counsel the grievor Mr Aldom estimated that between 1'988 and the grievor's termination in '1992, he spent approximately 50 per cent of his time dealing with or ~bout the grievor He de$cribed various incidents that required his, attention, such (IS the time the grievorused a fluorescent pencil to write some derogatory comments about other employees in one of the laQoratory rooms. When asked,fbran explanation, the grievor wrote that he wanted to show, "in an interesting way, how the fluorescent dye works." On, several occasions, the grievor complained that other staff were against 'him for blowing the whistle on employee misconduct. Mr Aldom became aware .of Ms. Grunwald's formalcornplaints soon after they were filed. He testified that he was aware, before November 1991, of some of Ms. Grunwald's concerns, but felt that they had no hard evidence to go on. He did, however, as Ms. Gr\!Jnwald testified, witness the grievor approac;:hing Ms. Grunwald one day In the hall. Mr Aldom saw him bend down and say something to her He then said something else to her, but when Mr Aldom began to move towards them, seeing that Ms. Grunwald was becoming upset, the grievor ,noticed him and rushed away Mr Aldom asked her what -~ ,~\ -- 22 A ""'-::::.~' had happened She said that he would not want to knQW Not long after this \ incident, Ms. Grunwald filed her formal complaints. The grievor was advised of these complaints Mr Aldom testified that on at least ,one' occasion after the grievor was told about these complaints, he witnessed the grievor, who thought th~tno ,one else was around; begin to hit his chest I with both hands in the presence of Ms Grunwald. This made Mr Aldom , I I realize that the problem would not go away Mr Aldom was astounded that " I someoneH who had been charged with harassment and sexualharassm~nt \ would continue -to behave in this way >- In November 1991, after the harassment investigation had commenced, the grievor refused to obey Mr ,Aldom's direct order to perform a work , assignment. He refused the request in front of ~wo Fanshawe College students, asking instead to see a copy of his job description. In fact, the job description lists this particular task as one of the grievor's duties and res ponsi bilities, Mi" Aldoni testified that the circumstances paralleled i those that led to t~e grievor receiving a three-day suspension in May 1989 Mr Aldorn sent the grievor a letter dated December 23, 199,' It reads, In part: Although, in my opinion, it was open to management to impose discipline as a result of this incident, we have chosen not to do so in the hope that this will promote acceptable relations between yourself, staff of the laboratory and management. I believe it is appropriate however to reiterate what was initially communicated to you in Dr Maharajah's letter of September 20, 1988, "management will no longer tolerate behaviour and/or remarks that are ,contemptuous of members of management; resistance to or defiance of legitimate authority; your inability to \ '" I l "- 23 '~: cooperate with' staff and your contmual antagonistic attitude towards your employer" Any incident of unacceptable behaviour in the future will attract a disciplinary response up to and including dismissal Mr Aldom testified that given the grievor's record, the only discipline that would have made any sense at this point was termination, and he did not wish to terminate the grievor He did, however, wish to communicate to him how seriously he took his misconduct in the hope th~t the grievor would improve According to Mr Aldom, laboratory morale has, improved dramatically since the grievor was dismissed Cross-Examination of .Mr. Aldom In cross-examination, Mr Aldom agreed that, during his tenure, relations between the grievor and other employees showed some improvement. Mr Aldom attributed this improvement to management's decision to separate the grievorfrom some of the indiv,iduals with whom he had on-going conflicts Mr Aldam testified that the grievor would not have ,been dismissed but for the harassment and sexual harassment allegations Mr Aldom agreed that the grievor had many problems with MrCole, and that this would not reoccur if. the grievor was reinstated because Mr Cole had retired. In Mr Aldom's view, however" becauseMr Cole had been replaced ,j by the grievor's common-law ,spouse, the potential for problems remained Mr. Aldom did not think it would be a good idea for Ms. Johnston to supervise the grievor In his view, such a supervisory relationship, given the personal relationship between the two, would have negativ.e implications for employee morale He insisted, however, that it was not the morale problem that led to the grievor's termination, but hiS harassment of Ms. Grunwald --- - - I ;~ 24 - In Mr Aldom's opinion~ the grievorcontinued to harass Ms. Grunwald sexually after her complaints were filed when he beat his chest with both hands in her presence, and this indicated to him the se'riousness of the situation and the impossibility of the grievor returning to the workplace Mr Aldom, agreed that management never treated the grievor's conduct as , sexual harassment until Ms. Grunwald filed her formal complaints ,in November 1 991 Mr Aldom agreed that management treated the griever's actions as childiSh misconduct, not as a matter meriting discipline Mr \' Aldom testified. that he would not appreciate chest patting at any time, but that there was a big difference between patting one's breast pocket and. beating one's breasts. with both hands after a charge of sexual harassment had been filed. Mr Aldom was asked why he never documented this particular incident, and he testified that he did not have time to document every incident involving thegrievor, and that it occurred, in any event" a week or so before the decision was made to terminate the grievor When the grievor was terminated, Mr Aldom advised him that he had' witnessed him in' this action I Mr Aldom was also asked about the grievor's relationship with Ms. ( Grunwald. He testified. that he never saw her bait the grievor or att inappropriately with respect to him Although the grievor once told him that he felt other employees were baiting him, the grievor did not prOVIde him with any specifics, nor did Mr Aldom ever witness any incidents that could be characterized in this way After Mr Aldom witnessed the grievor bend down and say something to Ms Grunwald in the corridor, he discussed the matter with her He djd not recall her saying that a similar incident had occurred several days previously At some point he learned that Mr Cole I I ,~ 2S had earlier heard the grievor say something obscene to Ms Grunwald It was suggested to Mr Aldom that along with Ms; Grunwald and Mr Cole, management Ihad concocted a conspiracy in order to get rid of a difficult employee Mr Aldom denied the suggestion He was also, referred to the conflicting statements given by him and Ms., Grunwald with respect- to the ,particular incident he witnessed As indicated above, the ~xtent of this /conflict. is the- exact 10catiQn in the corridor of the incident in question In our view, this is not a conflict of any material fact and adds nothing to our determination of the facts Wherever the incident occurred, Mr Aldom testified that he knows what he saw Evidence of Susa'n Salhani Ms. Salhani testified She ,is the Head Technologist, in the Environmental Sectiohalld supervises Ms. Grunwald. She joined the laboratory in July 1991 When Ms. Salhani 'first began work at the laboratory, Ms. Grunwald was assigned to the HIVRoom, so she was physically separated from her Ms. Salhani was new to the laborat0ry and did not know any of the employees. The- grievor was initially courteous but 'reserved in his dealings with Ms. Salhani' Needless to say, as she was the Head Technologist in the Environmental Section, she did not supervise the grievor, who was in the Clinical' Section After a while, the -grievor began to approach Ms. Salhani with increased \ regulCirity He would tell her about events in the past, and he explained to her that Ms. Grunwald had received her job by cheating him. Ms. Salhani formed the view that the grievor was attempting to recruit her as an ally, and that he was also seeking to reopen past events with the ultimate - 26 \ 'S.;. objective of obtaining Ms. Grunwald's position Ms. Salhamformed the view that the grievor had a very strong dislike for Ms. Grunwald. The grievor inform~d her about the June 1986 fed wax pencil incident. At first Ms. Salhani listened to these accounts. She' later told th~ grievor that she had no interest in becoming involved and advised, him to forget about the past. The grievor responded that while one could change the wineskin,one could not change the wine This indicated to Ms. Salhani that the 'grievor would not or could not accept change. According to Ms. Salhani" the grievor regularly made his feelings about Ms. Grunwald known. Ms Salhani witnessed the chair incident. On another occasion, when the Ministry's Chief of Environmental Bacteriology was , giving a staff seminar, the grievor began aSking questions at the conclusion I concerning cheaters and apple polishers. This dialogue continued for some ,I time, until the Director put an end to it. Later that day, however, when the Chief was in Ms. Sa/hani's section, the grievor appeared and resumed his line of questioning. Ms. Salhani went for the Director,- who asked the grievor to leave the room. Hereafter, this will be referred to as the "meeting incident." It seemed to Ms. Salhani that anytime there was a seminar or meeting, the grievor would return to this subject. Ms Salhani witnesSed the grievor patting hiS pocket when Ms. Grunwald was around. She also saw him glaring at her, and heard him, yelling at her Ms. Salhani testified about the details of some of these incidents. Ms. Salhani discussed the grievor's behaViour with Ms. Grunwald and asked her why she did not complain Ms. Grunwald informed her that she had complained in the past, but that nothmg had been done, and so she had learned to live with it. In the faU of 1 991., when the grievor was away on y 27 -, holiday, Ms Salhani' noticed that Ms. Grunwald' visibly relaxed Ms Salhani was new to management, but these events convinced her'that something needed to be' done She approached Ms. Grunwald and volunteered to assist her in niakinga complaint. She offered to serve as a witness She also told herself that if the grievor did one more thing upon his return from holiday, she, would intervene personally with DrChagla As it happened, soon after the grievor returned, the November 4th incident occurred. Ms. Salhani testified that Ms. Grunwald immediately reported thi~ ,incident to her She was crying and shaking at the time. Ms. Salhani instructed her to go and see Dr Chagla \ Ms Salhanitestified that most lab0ratoryemployees attempted to avoid the grievor, and that a lot of the female employees felt threatene9 by him Many employees would, not go into a room if he was there, although other employees" mainly male employees, had cordial relations with -him 'In her' statement to Ms. Ferrari, Ms. Salhani indicated that, along with 'other employees, 'she is afraid of how the grievor will act. She is of the view that he is not always rational, and is concerned that he might ,arrive a,t the laboratory to shoot her and other employees. -j' - After Ms. Grunwald filed her complaint, the grievor 'approached Ms Salham and asked her if she had ever witnessed any InstanceS of harassment Ms Salhani advised the grievor that she had and enumerated them to him The grievor then began to dwell or the past, at which point Ms. Salhani terminated the discussiqn Ms Salhani testified that laboratory morale has improved tremendously since the grievor left. Moreover, Ms. Grunwald has become a different person. She is much less tense, more confident and more sociable While Ms. Grunwald used to give her subordinates a hard ---- ...,., ----,----,--- , ~ 28 r ;~... ~ime, she is now more patient with them and has become an excellent teacher When Ms. Salhani first began work at the' laboratory there was a real division between the Clinical and Environmental""' Sections, even, though ( the two sections shared some space and were generally located in the same place. Ms. 5alhani attributes this division to the atmosphere of stress created by the grievor This conclusion is confirmed by the fact that. the J divisionis no longer as pronounced and that the laboratory h~s become a visibly happier workplace Cross-Examination of Ms. Salhani In cross-examination, Ms. 5alhani agreed that she was responsible for her employees. 5he also agreed that the chair incident took place in the summer of 1 991, the meeting incident took place in the fall of 1 991, and \ that she became aware of the grievor's yelling and his constant 'references to red wax pencils soon after arriving on the job. Ms. 5alhani was asked why she did, not do anything in resp0nse to these and other incidents. Ms. 5alhani -responded that on her very first day at work she witnessed the grievorbotheringanother female employee, and that she gave details of ( this incident in the ,staff coffee room VVhich made her and' the employee involved very uncomfortable Suffice It to say that the grievor accused another employee of polishing Ms. Salhani's apple In theresultj Ms Salhani and the other employee stopped eating their meals in the coffee room As already noted, Ms. Salhani was new both to the job and to management, and she testified that by October 1991 she had decided she had to act. It , was suggested to her that she could have warned the grievor instead of waiting to nail hini. Ms. Salhani pointed out that she was not the grievor's supervisor, and she felt that s~e needed a specific incident to bring to Dr I ~ -- -- 29 ,i: Chagla After some ,questioning, however, Ms. Salhani agreed that she could have gone to Dr Chagla in October or even earlier with the Incidents she had witnessed, not tOh1ention the complaints of harassment she had 'heard She also agreed that she met regularly with Dr Chagla and Mr Aldorh to' discuss I matters related to the running of the laboratory The gtievor's' conduct was discussed at some of those meetings. Mana~ement was not sure how to act. Thegrievor had filed a great many grievances in the past, and there was ~oncern that he would file a grievance in response to any management actions Ms. Salhani agreed! that Dr Chagla witnessed the chair incident, and to her knowledge he did ,not speak to the grievor about it. Ms. Salhani agreed It was possible that Ms. Grunwald's chair did not have a sign on it saying It. was reserved. It was: alsQ'pOssible that her chair enjoyed' a better vIew. While thatmigh~explaih why the gfiievor moved places to occupy'it. Ms-. Salhani pointed out that the grievor normaliysat at the front, and that he ~ refused to move when he was advised that the chair was reserved for MS - . . I G-runwald 'I I Ms. Salhani agreed, that the grievor was not disciplined for themeetmg incident, although she noted that at the time o'f that incident the gnevor was under investigation as a result of Ms. Grunwald's harassment complaint~ Ms. Salhani testified that after she offered to assist Ms Grunwald, Ms. Grunwald told her about thegrievor calling her a "cunt" and a "fucking cunt." The witness agreed that she did not refer to this ) conversation in her statement provided to Mr Bill Lewis. \ ~ ~ 30 I (At this point in the chronology it IS useful to point out that while Msllona Ferrari conducted the initial investigation and then' prepared a report, It was determined, about which more will be said below, that this report was ~ '. . incomplete As Ms. Ferrari's per~onal circumstances precluded her from continuing with the investigation, Mr Lewis was assigned to the case and subsequently submitted another re~ort.) , I Ms. Salhani, agreed that management is responsible for managing, and she , -, accepted the proposition that she could have taken action earlier than she did. However, she pointed out in her defence that she was" new to management and was not familiar with the extent of her obligations Moreover, it took her some time to realize how serious the problem really was. Ms. Salhani never heard Ms. Grunwald say that she wanted the grievor to be terminated. What she did witness, however, wa~ Ms. Grunwald rnaklng all possible efforts to avoid the grievor Evidence of Maria Prteniaca Sakellarls Ms. Sakellaris testified. Ms. Sakellaris worked with the grievor in the Clinical- Section for approximately eight months, and then, after winning. a job competition, transferred, to the Environmental -Section Ms. Sakellans had a good working relationship with the grievor until she won the job competition. After she began to report to Ms. Grunwald she noticed that the grievor's attitude towards her changed, as did the nature of their interaction One day the grievor called her into one of the laboratory rooms and showed her where he had written, "Maria is a stupid absent-minded scientist" in fluorescent marking. Ms. Sakellaris, testified she was shocked I by this incident, but responded to it by laughing it off The grievor also wrote some comments about other employees in, fluorescent marking. She 31 ',,; " testified she Y{as afraid' to do anything about it because she had $een what ~ happened to people who spoke out against the grievor Another time, Ms, :1 I, Sakellarishanded out a union ,bulletin to members of the staff' A short time later, the grievor approached her and said he did not appreciate the way she was Imitating the way he talked and smelled Ms Sakellaris denied imitating him in any respect. Ms Sakellaris was fully familiar with the grievor's u~e of the term "red wax pencil," and 'heard him refer to it on countless o~casions when Ms. Grunwald' was around She witnessed the grievor patting his pocket and staring'at Ms. Grunwald, both before and after Ms. Grunwald "filed her formal complaint. Indeed, after the complaint was filed, Ms. Sakellaris started keeping a record of every time she witnessed the grievor patting his, pocket i in front of Ms., Grunwald, and she recorded a number of these incidents. The ~ I last one occurred the, day thegrievor was dismissed. She, Was also familiar with some of the other terms the grievor used; such as "apple polishing" and "shoe polishing." She also stated that at staff meetings and on other occasions, the grievor would continually bring up his pas~ complaints by asking questiOns about cheating and apple polishing Usually these comments were directed at Ms. Grunwald, but sometimes they were directed at other employees as, well On one occasion, Ms. Sakellaris was eating an apple in: the staff coffee room with her supervisor, Ms Salhani, when the grievor came in and made several references to '''apple polish"'g " Ms. Sakellaris found these references extremely upsetting' According to Ms Sakellaris, the atmosphere at the laboratory has dramatically improved since the gnevor was dismissed. Not only is MS Grunwald visibly relaxed, but general employee morale has noticeably I __..__ _u_ - - ! - } 32 r " improved. Ms. Sakellaris testified to being afraid of the grievor She felt physically threatened on at least one occasion by him, and $he descnbed an f f incident in which the grievor was ,rude to her fiance on the telephone As a result of that incident, she was worried that the grievor was going to be I waiting for her in the parking lot. On some occasions, she would check the corridor to see if he was around in order to avoid him. Cross-Examination of Ms. Sakellaris In cross-examination, Ms. Sakellaris agreed that (the grievor nfi!ver waited for her!n the parking lot. She did not agree, however, that her fear of his doing so was unfounded. Ms. Sakellaris testified that after _the grievor accused her of imitating him, she approached the Director and reported the incident. She was advised to inform the Director should it happen again As ,far as Ms. Sakellaris is aware, the Director did not take any action after she made [her report. Ms. Sakellaris is of the view that management should have done more with respect to the situation Ms. Sakellaris wasa.sked about a trip to Windsor that a number of employees took in October 1 990 to write certain accreditation exams She agreed that she did- not travel with the grievor to Windsor, nor did she bOOk him at the samehote[ as the other employees. Ms. Sakellaris further agreed that she signed the August 1988 petition against the grievor, although she was not experiencing any personal difficulties with him at that time She I signed the petition as a way of assisting_ Ms. Grun~ald, as she did not feel I that Ms. Grunwald deserved to be harassed Ms. Sakellaris agreed that by signing this petition she was advocating the grievor's dismissal, but qualified that agreement with the observation that it was warranted - because of his conduct. After Ms. Grunwald's complaint was filed and the >, \ ) 33 investigation commenced, Ms Sakellaris, was of the view that thegnevor should be 'dismissed It was suggested to Ms. Sa\(ellaris that one of the reasons why she experienced difficulties with the grievor was because she imitated his English The witness denied the suggestion and denied harassing him In any way Evidence of Marc Giroux Mr Giroux testified. He is a technician employed at the laboratory ,and has worked there for approximately twen~y years Mr Giroux worked, In the Clinical Section with the grievor Along with the grievor, Mr Giroux - competed'in1986~for the Senior Technologist ,position eventually awarded to Ms. <Jrunwald. Mr:. GiroUx testified that the ,grievor believed he should. have won the competition, and that he, noticed a, change in the grievor's attitude towards Ms. Grunwald in the aftermath of that competition Mr Giroux testified to the grievor's repeated and daily references to red wax pencils and apple arid-shoe 'polishing in the presence of Ms. Grunwald On many occasions, Mr 'Giroux witnessed the grievor patting his pocket in lthe presence of Ms. Grunwald. According to Mr Giroux, the grievor did not enjoy good relations with any of the employees. While the grievor frequently complained that 'he was being harassed, Mr Giroux was of the view that it was the grievor who was harassing others. For example, thegrievor would regularly make comments to his supervisor, Mr Cole, to the effect that ,he, Mr Cole, did not know what he was talking about. Mr Giroux noted that the grievor carried htt\e cards with him and would take notes about what he heard and observed. In I --- --- 0 , 34 \ ., \ the fall, of 1 991, Mr Giroux observed the grievor approach Ms. -Grunwald in, the corridor Mr Giroux could not hear what was said, but it 'was apparent to him that whatever was said was very upsetting to Ms. Grunwald I Cross~Examinationof Mr. Giroux In cross-examination, Mr Giroux admitted to signing the August 1988 petition. He testified that everyone was upset at that time by the grievor's behaviour, and the idea behind the petition was for management to take action. What really upset Mr Giroux at this time was the grievor's habit of i using expressions such as "fucking so and SOli and "licking the ass. II Mr I Giroux agreed that when thegrievor was told to stop using these I I expressions, he did stop. However, inMr Giroux's view, all that changed was the emphasis, as the grievor began making more frequent use of the terms "red wax pencil" and "apple and shoe polishing." After Dr Chagla was appointed Director, th~ grievorreverted almost exclusively to using the term II red wax pencil~" Mr Giroux, agreed that management was aware of his use of this term. Mr Giroux did not agree with the suggestion that the situation in the laboratory was better in March 1 99:2 than in August 1 988 He testified that while the grievor was. no longer using crude language, the laboratory was still very tense Mr Giroux agreed that occasionally other employees would, as a joke, refer to red wax pencils. He testified that it was never funny when the grievor did so Mr Giroux never heard Ms. Grunwald refer to that term. \ Evidence of Swee Ho Ms. Ho testified. She has worked at the laboratory for almost nineteen I ( ~ ';C _n_ O 3S ., years. From time to time; over the ,course of her employment, she has wor.i<edalongside the grievor She testified that she attempted to avoid the grievor because of his tendency to create problems If an employee said something the grievor did not agree with, he would repeat it over and over again. Ms. Ho testified'that he seemed to enjoy creating arguments. Ms Ho heard the grievor refer to red wax pencils and apple and shoe polishing on numerous occasions in Ms. 'Grunwald's presence, and in the presence of others, after he lost the job competition in 1 986 In her interview with Ms Ferrari, Ms Ho referred to an incident involving thegrievor According to Ms. Ho, the grievor complained to management that she' had asked him to have sex with her On February 18, 1988, the I grievor submitted a s~xualharassment grievance stating that he had been I' I harassed by Swee Ho Ms. Ho testified that the incident described never occurred and that the grievance was eventually dropped She stated that the suggestion was particularly insulting to her, since she was of Chinese oescent a'nd of a particular generation In August 1988 Ms. Hosigned the -- petition against the grievor She did so in the hope that management would act and :restore -peace to the workplace. According to Ms. Ho, Mr Cole treated the grievor in the same way as he treated all his other employees. Ms. Ho- was referred' to a "sexual and raCial harassment" complaint dated September 44, 1992, filed against her by the grievor In his complaint the grievor states that "around 1987, Ms. Swee Ho asked me if I want to have sex in front of the staff" Ms. Ho again denied that she ever made any comment of this kind. The complaint also states that Ms. Ho discarded certain samples the grievor was working on. Ms. Ho denied doing so, and noted that the grievor has aecused many employees of tampering with hiS / 3S -' years., From, time to time, over the course of her employment, she has worked alongside the grievor She testified that she attempted to ,avoid the grievor because of his tendency, to create problems If an employee said something the grievor did not agree with, he would repeat It over and over again. Ms. Ho testified that he seemed to enjoy creating arguments. Ms Ho, heard the grievor -refer to red wax pencils and apple and shoe 'polishing on numerous occasions in Ms. Grunwald's presence, and in the presence of I others, after he lost the job competition in 1986 In her interview with Ms Ferrari, Ms Ho referred to an incident involving the grievor According to Ms. Ho, the grievor complained to management tha,t she had asked him to have sex with her On February 18, 1988, the grievorsubmitted a sexual harassment grievance st~ting that he had been harassed by Swee Ho Ms. Ho testified that the incident described never occurred and that the grievance was eventually dropped. She stated that the suggestion was particularly insulting to her, since she was of Chinese descent and of a' particular generation In August 1988 Ms. Hosigned the petition against the grievor She did so in the hope that management would ~ act and Jestore peace to the workplace According to Ms Ho, Mr Cqle treated the- grievor in the same way as he treated all his other employees Ms. Ho- was referred' to ,a "sexual and racial harassmentlt complaJntdated September 24, 1 992;. filed against her by the grievor In his - complaint the grievor states that "around 1987, Ms. Swee Ho asked me if I want to have sex in front of the staff" Ms. Ho again denied that she ever made any comment of this kind. The complaint also states that Ms. Ho discarded certain samples the grievor was working on. Ms Ho denied doing so, and noted that the grievor has aecused many employees of tampering with hIS , ( .; 37 shoe polishing in connection with Ms. Grunwald on numerous occasions. It was never said as' a joke She also heard, Ms. Grunwalcj-say "be sure to use I I your red wax pencil, ", but never int the grievor's presence She testified I about an occasion, in which ~he felt demeaned by the grievorin reference to \ her e,fforts to upgrade her qualifications. She reported the incident to Dr 'I Chagla, who, she testified,reprimanded the grievor Since the grievorJ 5 termination, morale in the laboratory has greatly Improved .; { Cross-Examination of Ms. Trail In cross-examination, Ms Trail testified that employees, including Ms Grunwald, have been referring to red wax penCils as a joke for as long as she has beend employed at the laboratory It was not, ,however, a joke when the grievor did so, because of the manner in which he did it. He took I advantage of -every opportunity, according to Ms. Trail, to mention the phrase and to keep past issues. alive Ms. Trail was of the view that the I grievor detib.eratety used the term "red wax pencW' to' make M~. Grunwald , angry She agreed that managemernt did not, to her knowledge, do anything ,I I \ after she and 'other employees sigriled the petition against thegrievor In August 1 988 Evidence of Dr. A. Chagla i Dr 'Chagla testified.. He ha~ been Director of the laboratory since March I 19~O About a month after starting work, the grievor arrived at Dr Chagla's office to brief him about past events, including the "cheating" assOCiated with the 1 986 competition won by Ms. Grunwald. The grievor also advised Dr c:hagla that many of the employees in the laboratory were liars. Dr Chagla advised the grievor to forget about the past and to start afresh Dr Chagla testified that he attempted to encourage the grievor to develop hiS 38 ?"' expertise, and that he wrote, a letter of recommendation on his behalf He. also invited the grievor to give a seminar to the staff The purpose of these efforts was to assist the gtievor by focusing on his strengths, rather than dealing with him in a confrontational manner that focused' on his, ( weaknesses In July 1990 another pan~1 of this Board issued a decision (Koh 458/89 (Stewart)) respecting thegrievor's complaint that the secQnd competition for the Senior Technologist position was flawed. The panel held that Ms Grunwald was the superior candidate and that the Collective Agreement had \ r- not been infringed~ Dr Chagla testified that after this decision was released, he could sense tension in the laboratory He also noticed that Ms. Grunwald was upset. Dr Chagla found out that the grievor was patting his pockets and referring to red wax pencils Dr Chagla formed the view that the grievor was doing this to demean Ms. Grunwald. He testified that he did not do anything about it, however, because he was new to the laboratotyand: r did not wish to exacerbate the situation. J Dr Chagla was also aware of the grievor's relationship with Mr Cole and of' the fact that the grievor constantly attempted to undermine chime Whenever Mr 'Cole and the grievor fought, Dr Chagla would attempt to pacify the j situation. He found it difficult to talk to the grievor because the grievor would always attempt to dwell on his past grievances. Dr Chagla would take action in response to particular Incidents. After the grievor wrote that "Maria was a stupid absent-minded scientist" in fluorescent writmg m one of the laboratory rooms, Dr Chagla asked the grievor for a report. A copy of this report, dated September 21, 1 990, was introduced into evidence Suffice it to say, the grievor took the position that he wrote the ! 39 words as a joke arid to encourage Ms. Sakellaris "to learn" Dr Chagla 'did not find this explanation acceptable and told him that behaviour of thIs kind i would not be, tolerated. He testified that he also advised the, 'grievor.that his constant references to red wax pencils and his patting of his pocket were annoying and that he should discontinue making these references and actions According to Or Chagla, the grievor ,simply ignored him. j Each year Dr Chagla reviewed the grievor's performance appraisals and he could see that the grievor had poor interpersonal skillS He did not speak to ' him about this matter He was also aware that the grievor created an \ atmosphere'of stress. He testified that the grievor was a' confrontational, "in your face" type of person Dr Chagla was we'" aware of the grievor's , habit of making things tip, about other people Sometime after arriving at thelaboratoty, Dr Chagla learned about the August 1988 petition He ,questioned the grievor about this, and the grievor replied' that other people lied and 'cheated and so on Or Chagla' was aware that the grievorhad' been I' sent for counselling, and that the medical reports indicated ,he could not or would not be helped, He was familiar with the grievor's record, including' the counselling letters and the discipline he had received ! When Dr Chaglalearned of Ms. Grunwald"s sexual harassment allegatIons, he , felt that the grievor had gone too far and asked Ms. Grunwald to put her allegations into writing. He also spoke with his Regional Manager and Ms I Mira Bazzul, the Ministry's Workplace Discrimination and Haras~ment I f I Prevention Coordinator, who, upon receiving Ms. Grunwald's November 5, 1 991 complaint, asked for further details. Dr Chagla passed on the req uest and he then forward Ms. Grunwald's November 6, 1991 letter to Ms Bazzul . . , Ms. Bazzul advised Dr Chagla to inform the grievor of the complaint, which '\ I I \. I - - 40 he did on November 1 2;1 991 The grievor was provided with copies of both Ms. Grunwald's letters, among other things, and was told about. the resources available to him should he wish any advice on how to respond The grievor read the letters and denied the allegations. He was informed i that there would be an investigation, and that ne would have an opportunity to respond and to grieve. On November 1 7, 1 991, the grievor submitted a written reply to Ms. Grunwald's complaints. This lengthy reply states, among other things, that it was Ms. Grunwald who was harassing him, not the reverse It refers to numerous incidents of- tampering by MS. Grunwald in the grievor's work It alleges that Ms Grunwald, and unnamed members of man~gement, perjured themselves before earlier proceedings at this Board, and that Ms. Grunwald was motivated by jealousy' of the, grievor and his accomplisnments The reply also alieges that Ms. Grunwald and Mr Cole are "lovebirds. ,i With respect to Ms. Grunwald's specific allegations, thegrievor ,states The sexual' allegation made by Ms. Grunwald was I frivolous and groundless. ) _For the specific incident Ms. Grunwald presents, , would rather not respond at this moment. I will explain at the place of the investigation when the union representative is present. I believe that Ms. Grunwald's slanderous letter is a last attempt to intentionally ruin my good name. Ms. Grunwald's dishonest behaviour and disregarding of my isolates demonstrate that she is capable of . -~ ~, 41 fabricatin.g a: sexual harassment scenario to viciQusly' attack my good character and competence Dr Chagla testified that the sexual harassment investigation was completed in March 1992 and that after rev.iewin~ the investigation report, he recommended dismissal In Dr Chagla's view, there was no. prospect of thegrievor ever getting along with other employees. Moreover, Dr Chagla' expressed the opinion that the grievor had so thoroughly poisoned the work atmosphere that he could not be allowed to continue as an employee The fact that even after the investigation commenced, the griever continued his insubordination and continued to pat his pocket and refer to red wax pencils only demonstrated that the situation was irreparable Finally, before making his recommendation, Dr Chagla considered the fact that counselling was contraindicated, and he also reviewed the grievor's performance appraisals, which indicated that the grievor was a much less than satisfactory employee Dr Chagla testified that morale in the laboratory has greatly improved since thegrievor's termination. He testified that Ms. Grunwald isa "different person.tl He noted that the grievor's cpmmon-Iaw spouse, Ms. Johnston, now occupies Mr Cole's position, and he testified that, in his view, it would be devastating for the laboratory if the grievor were to return to work and to report to Ms. Johnston. Cross-Examination of Dr. Chagla In cross-examination, Dr Chagla was asked why he never disciplined the grievor for his misconduct. He testified that he sought, through verbal counselling, to get the grievo( to change his behaviour Dr Chagla could see no point i{l disciplining the grievor even when he continued to pat his chest 42 pocket and use the term "red wax pencil" after Ms. Grunwald had filed her complaint and the investigation had commenced. Dr Chaglaagreeq that he did nothing, about the grievor's conduct other than telling the grievor to stop patting his chest and stop using the term "red wax pencil " According: to 'Or Chagla, he wanted to pacify the situation He noted that all the letters anc;f counselling in the past had' not made much of a difference. Dr Chagla was asked about his pUl'iported efforts to assist the grievor, such as providing him with letters of recommendation to attend seminars and other professional events. It was suggested to him that he had not reatly - made any special efforts on the grievor's behalf Dr Chaglainsisted that he had, and that he, had done so to help thegrievor forget the past. He agreed I that the grievorhad demonstrated academic interest in his work, and that he had taken various courses to improve his skills. While Dr Chagla received many non-technical complaints about the grievor, he never received anYI compl~intsabout his ability to perform the technical aspects of his position I Evidence of Bill Lewis Mr Lewis testified. As noted above, he completed the investigation initiated by Ms. Ferrari. A former police officer with a teaching degree. Mr Lewis is 'currently the Executive Officer ,of St. Thomas Psychiatric Hospital Mr Lewis is a trained investigator under the Ministry's Workplace Discrimination and Harassment Prevention Policy (hereafter "the WDHP Policy") He testified that in early 1992 he received a/telephone call from Ms. Bazzul, who advised him that an investigation had commenced at the laboratory, but that the investigator, for' personal reasons, was not in a position to complete it. Mr Lewis agreed to undertake the assignment and 43 \ to complete the investigation' He was given a copy of Ms. Ferrari's December l8, 1991 Investigation Report. \ Mr Lewis studied the report. He then reinterviewed all the witnesses referred to in it and had them confirm the statements they had earlier provided to Ms. Ferrari.. Needless to say, he met with Ms. Grunwald and the grievor The grievor advised him that there was a conspiracy against him and that most of the, people in the laboratory had it in for him. The grievor further advised him that he was the person being harassed and. that ,he had to retaliate against this harassment. The grievor also told him. that he despised Ms. Grunwald, MrCole, and Mr Aldom. MrLewis testified that he \. could uncover no eVIdence of either a conspiracy 'or the grievor being the victim .ofany h~rassment. In addition to conducting these and other interviews, Mr Lewis ~Iso :1 reviewed thegrievor' s corporate and administrative file A chronological history of the grievor's public service career was prepared and' introduced \ into evidence It indicates that the grievor has a long record of filing complaints against other staff members. Mr Lewis also -reviewed' th~ grievor's November 17, 1991 reply to Ms. Grunwald's harassment complaints~,ln his summary of investigative findings, Mr Lewis concluded that "the allegations of harassment agamst Mr Chong Koh in that he used demeaning words and gestures, sexually explicit words and lewd gestures are confirmed by the evidence as presented " With respect to factors affecting corrective action, Mr Lewis wrote, and the following extractis r exactly as it appears, that: Interviews with employees in the London Public Health Laboratory indicate that they do not have the desire or --, 44 energy to cope with Mr Chong,Koh's behaviour of prolonged anger and retaliation. Mr John Aldom, who supervises Mr Koh, seems to be one of the. few who feel optimistic that Mr Koh will change 'his ,behaviour It appears from the review of all evidence that Mr Chong Koh's, major problem is his personality He still feels himself victimized by his employer and fellow employees and does nOt feel responsible for contributing to any_of' the con,flict in his workplace Past medical reports found that psychological counselling was contra-indicated The complainant, as well as, other female employ.ees have ,expressed that Mr Koh's behaviour at the workplace seems increasing threatening to them and escalating. Mr Lewis testified that it was clear from his interviews that many employees at the laboratory were not only genuinely frightened of the grievor but feared ret~liatory action from him. Employees also felt that management had not properly responded to the grievor With respect to the grievor, ,Mr Lewis concluded that the major factor affecting corrective action was that he would not or could not accept any responsibility for his conduct, and in reaching this conclusion Mr Lewis relied not only on his own assessment of the situation but on two medical reports. The first of these :i reports is a 1988 psychiatrist's report. The text of this report iscontamed in a letter dated .August 29, 1988 from the Ministry's Medical Director to the Head of the Laboratory Services Branch It reads as follows: Please refer to your request to have the above named employee of your ministry examined under article 52 9 of the Collective Agreement. This request was made because Mr Koh was having significant inter-personal problems in the work area ( 45 As a result of your request, Mr Koh Was, referred to Dr Max who is a psyc~iatrist in London I have now. received Dr Max's report, the following is a quotation from that report: "In the interview situation he was 'reason~bly comfortable but rather defended~ His anxiety was manifested by frequently having to clear his throat and one got repetitive messages reflecting on his needs to attempt to prove his' self-worth. I think that this is the key to his difficulties in that he has a sense of ! self-worth, has some vulnerability. to loss of self-esteem and enters into combat whenever his opinions are challenged. His style appears to be that he activates certain difficulties by criticism and challenge, / once again I think driven, by a sense of need to ~bolster his own self-esteem and his abilities in comparison with his ~ fellow workers and superiors. "My diagnostic impression is that there are no ,psychotic features evident.' I think he was somewhat d~pressed but has managed to recover from this and this I think is secondary to the loss of his family His problems are in his personality where I see him as being profoundly sensitive to; criticism, challenge, and his response is one of retaliation, prolonged anger and some sense of projection leading to some paranoid attitudes. Hehas certainly had enough feedback that I think he handles it I with denial,protectshimself, and takes up the cause of attack. He has now been back to work' for one week and feels that ,this has gone well. I do not believe there is currently any limitation in his ability to return to work and carry out his usual duties, nor do I feel that it would be necessary for him to change his type of work. He recognizes the' counselling he has received at work but I don't fee that he is' very open-minded and is not likely to benefit by psychotherapy, particularly when he is coerced. A t this time he does not recognize any significant problems in his own function, except for what I have already described and shows no interest in pursuing any treatment." Based on the information provided by your ministry and ! Dr. Max's report, I agree that Mr. Koh's ,primary problem is ~I !' '" 46 ~ the result of personality difficulties, particularly in that he is unable tQ accept challenges to his self-esteem. Personality problems are not generally considered to be medical or psychiatric episodes such as depression You will also note that Dr Max does not feel that Mr Koh would be receptive to counselling, particularly if this were forced upon him by management, union, grievance board, etc. In effect this greatly restricts what can be done for Mr Koh as it does not Seem likely from Dr Max's letter that he will seek counselling on ,his own One strategy that might be useful might be an attempt to .... l build Mr Koh's self-esteem through skill development, responsibility for specific tasks which Mr Koh is known to perform, in a better than satisfactory manner In making this suggestion it is recognized th~t the ministry must continue to insist that Mr Koh meets certain standards of deportment and follows the usual rules and' regulations governing provincial laboratories. i It may well be that the situation with Mr Koh has gone beyond the point were such an approach would be useful In fact, based on the information provided by your ministry and Dr Max's report, it is my opinion that the work situation is unlikely to improve unless Mr Koh recognizes the need to change to deal with his self-esteem and accepts counselling etc. to enable him to do so. The second report, dated September 13, 1989, was prepared by a London psychologist, Or J Wayne Thompson Mr Koh was referred for counselling June 29, 1989 The presenting problem was a conflicting working relationship between Mr Koh and his employer the Ministry of Health Regional Public Health Laboratory Mr Koh was seen July 20 and 27, 1989 and September 1, 1989 Mr Koh presented his views of the problem in a detailed manner complete with dates, times, persons and '- 47 copioys documentation. Mr Koh tended to present the issues in a didactic and moralistic manner Mr Koh believes his 'integrity and professionalism have been maligned He views himself as a dedicated professional and believes his employer does not ,share his standards of work behaviour Mr K"~h believes the conflict be,gan when .he dis~greed with the means of reporting contaminated water samples. M,r Koh reports that he expressed: his disagreement to high authorities and thereafter, he believes ,his employer turned against him. The conflict became elevated, in Mr Koh's view, in October of 1987 when he received a negative appr~is~lof his work .behaviour Mr Koh disagreed vociferously at that time and continues to perseverate regarding this performance issue, even though circumstances have changed and Mr Koh's performance has been judged improved Mr Koh feels himseit to be victimized by his employer and does not view himself as in any way responsible for the conflict that. exists. 'I Mr Koh is a complex individual. While his aspiration level is very high, the achievements in both his professional and personal life, have proven disa,ppointing to him. He has not achieved as much, as he desired He tends to present his life disappointments as a function of environmental circumstances beyond his control, rather than as a function of his own behaviour, talents and efforts. His self esteem seems to be based ona perception of himself as, the victim 'and he is in no way, in his mind, responsible for the less than desirable outcomes he has experienced in life His supercilious mode of self presentation appears to be a compensation mechanism he uses to protect himself from his sense of life' disappointment. Any criticism of Mr Koh's behaviour is likely to be intolerable to Mr Koh and he would respond with anger and defensiveness. He does not have sufficient ,self esteem to tolerate a critical look at his own behaviotjr in order to find more useful means of achieving his personal and professional goals. ,,~. 48 Despite Mr Koh:'s life difficulties, he does not suffer from ~ny defi{litive mental disorder Conflict between parties is generally, resolved between persons in conflict through discussion, understanding and compromise Mr Koh is unable to view the consequences of his own behaviour dispassionately, and views 'the offer of counselling as another tactic on the part of his employer - to dismiss him. Under these conditions, psychological counselling is contraindicated as my services, would not be useful' to Mr Koh and could prove harmful to him. Cross':Examination of Mr. Lewis Mr Lewis was asked many questions in cross-examination He was referred to Ms. Grunwald's letters of November 5 and 6, 1991, and he agreed that It would have been reasonable for thegrievor to believe that he was being charged with sexual har~ssment and not harassment. He. agreed w.ith the suggestion that the grievor's references to red wax pencils and the tapping of his chest pocket did not constitwte sexu,al harassment. In the course of his investigation, Mr Lewis did not find any evidence indicating that management ever told thegrievor to stop referring to red wax pencils' and to cease patting his chest. He did; however, uncover numerous instances of other employees complaining to management about the grievor Mr Lewis testified that while Ms.. ,Grunwald's letters may have referred only to sexual harassment, it became quickly apparent, during the course of his- investigation, that thegrievor had also harassed Ms. Grunwald over an extended period qf' time and that this harassment, as well as the sexual ( harassment, created a poisoned work environment. Mr Lewis was asked whether ,he auributed some of the responsibility for this poisoned work environment to tt'le employer, which had, apparently condoned the grievor's behaviour Mr Lewis testified that it was not his 49 I role. toassigri blame His job was to investigate the allegations ,and make findings with respect to them. .Mr LewIs had no idea why.; to his knowledge, ~ no member of management ever told the grievor tostdp referring to red wax pencils and to stop patting his, chest when doing so '\ As already noted, the investigation was initially commenced by Ms Ferrari Mr Lewis was referred'to the findings in her report. He was in agreement with these findings, as well as witlil Ms. Ferrari's conclusion that the I grievor had continually. harassed Ms. Gnmwald, and that tnis harassment created a poisoned work environment affecting Ms. Grunwald and many other employees. Mr Lewis told the Board that part of his particular assignment was to review the documentary record as, well as to make findings with \ respect to ,pos$ible corrective measures. ~Ms. ,Ferrari's report did not de'al with thes~ issues ,Ms. Baz,zul wanted to know, if sexual harassment was, found to have taken place and discipline was required, what corrective 'I factors were present that should be considered in the determination of the appropriate Ministry response 'Mr Lewis emphasized that the Ministry was not, to his knowledge, looking for mew allegations to make against the grievor Mr Lewis was, referred to the August 1988, petition signed by Mr Cole, Ms Grunwald, and various other employees He did not agree with union \ counsel's suggestion, however, that this petition demonstrated a conspiracy against the grievor In Mr Lewis's view, the petition and accompanYing letter were better charact~rized as a request from Mr Cole and other employees to management for assistance Inasmuch as' those .employees I I wishe~ the grievor to be terminated, that could, inMr' Lewis's view, be explained by the fact that the grievor was a disruptive influence in the \ --- ~-- - 1 50 workplace He testified that, he did not come across, any evidence whatsoever that Ms. Grunwald was in any way responsible for the pOisoned I work environment. Had he come a,cross such evidence he would have investigated it. Turning to his specific findings against the grievor, Mr Lewis agreed that his report contained four specific allegations 'Those allegations are as, follows , Ms. Susan Grunwald alleges that Mr Chong Koh uses demeaning offensive remarks and gestures towards her both directly and indirectly, from June 1986 to February 25, 1992, constituting harassment. 2 Ms. Susan Grunwald alleges that between January 1, 1991 and,November 4, 1991 that Mr Chong l<oh has harassed her by using sexually explicit words towards her 3 Ms. Susan Grunwald alleges that between October " 1991 and Novernber 4, 1991, that on two occasions Mr Chong Koh made lewd sexual gestures with his hands towards her j ) Further allegations resulting from the investigation 4 Ms. Ilona Bedritis was interviewed on November 27, 1 991 and stated that there was an investigation involving MrCho'ng Koh approximately six years ago, and everyone was upset and further states" nothing happened so you wonder why complaining when nothing seems to be done " Ms. Ilona Bedritis has retired from \ the London Public Health Laboratory after her interview of November 27, 1991 Mr Chong Koh was asked about an allegation of sexual harassment brought against him by Ilona Bedritis in 51 1987 He stated on March 2, 1992,dunng his interview, that he and Ms. Bedritis had been arguing He stated that Ms. Bedritis said II Chong your are like my \ landlord"alzheim~r disease in LPH I, cannot understand your English. Go and learn more English. II Mr Koh stated he: replied to Ms. B~dritis that" you remind me of the whore I slept with last night." Mr Koh indicated that he was -reprimanded for this A review of the correspondence from Mr Charnausl<as (sic), Head of Microbiology to Mr Chong Koh on July 1987 and June 3,0, 1987, indica1!es that Mr Chong Koh was formally reprimanded for harassing Ms Ilona Bedritis by using profane language . Mr Koh alleged that Ms. Bedritis had haras~edhim~After a subsequent investigation this was found out to .be unfounded. (see correspondence from Dr Maharajah to Mr Chong Koh datedF~bruary 15, 1988 With. the exception of alleg,ation number 4, all the other allegations are followed by {engthy discussions of the relevant evidence Mr Lewis agreed that there was no reference to either allegation number " or number 4 in either of 'Ms. Grunwald's letters of complaint. He testified that he considered the gdevor's past behaviour, as wen as, 'his conduct after the complaint was filed, as relevant factors to be considered by the person in charge of determining corrective action He agreed, however, that the grievor had never been disciplined for referring to red wax pencils or for patting his chest, although the employer was well awate of his conduct In this regard. He had, however, been previously disciplined for the inCident L involving' Ms. Bedritis. While the grievor was issued a counselling letter with respect to this incident, another panel of this Board apparently ordered the removal of that letter from the grievor's file after a period of two years. Mr Lewis testified that he found a copy of this letter in the - - 52 ~ } corporate file, but not in the grievor's personnel file He testified that he asked the grievor about it, and even in its absence he would still have set out the incident described in allegation number 4 since that incident was brought to his attention, during the course of his investigation Had he seen the Board's order directing the remeval of the letter of reprimand in the grievor's file, which he described as voluminous, he would not have referred to it in this particular allegation Mr Lewis denied the suggestion that ,his report was designed "to get" the grievor Evidence of Dr. Helen Demshar . Dr Demshar testified. She is the Director of the Ministry's Laboratory Services Branch and has worked with that branch since 1982 In November: 1991 Dr 'Chagla contacted her and advised her of Ms. Grunwald's complaint. , In March 1992 she obt,ained a copy of Mr Lewis's report. She then discussed that report with Dr Chagla, Ms. Bazzul, and legal counsel Various options I were considered, and an options paper was prepared. After carefully considering the, report, the grievor's record, including past discipline, and the results of her various discussions, Dr Demshar decided to recommend 1 dismissal to the Deputy Minister She testified that in all the circumstances of this case, she did not feel that suspension was an appropriate management response She testified that there was no position available for the grievor in any other laboratory, and, in any event, she was not of the view given his record and performance appraisals, that he could function in any other laboratory even if there was a position available She met with the Deputy and a further discussion ensued The Deputy accepted the recommendation, and on March 2,7, 1992, the grievor was dismissed I ~ ~- -- -"- - .,' s --~ --- " S3 ""- ~ Dr Demshar testified that in reaching her recommendation she did not rely in any way on" allegation number 4 setout in the Lewis report. She testified "- that she did not rely on this allegation because she was aware that the I I letter of reprimand had been removed by Board order Cross-Examination of Dr. Demshar Incross-examination -Dr Demshar insisted that her decision was based, on " all the factors she referred to in her examination-in-chief, and was emphatically not based in any way on allegation number 4 in the Lewis report. This was illustrated' by an attachment to her dismissal letter which clearly sets out the fact that only the first three allegations were considered and relied upon Dr Demshar agreed, that an accused must know the charges he or she must meet. She, agreed' that the grievor was never specifically notified that harassment allegations, as distinct from sexual harassment investigations, were, ,part of Ms. Grunwald's complaint. She testified, however, that the I ( / investigation' was thoroughly conducted She noted that cases of this kind often turn on credibility, and she found it significant that one witness, in addition to Ms. Grunwald, heard thegnevor call Ms. Grunwald a "cunt." ThiS evidence was important, Dr Demshar testified, 'because there are rarely ~ny witnesses to incidents of this kind Dr Demshar testified that the grievor was an unpopular employee and that she could tell as much on her visits to the laboratory In her view, employees in a laboratory must wo.rk as a team, and the grlevor was not part of the team. While Dr Demshar was aware of the August 1988 - petition, that petition had nothing to do with her decision to t.erminate the -- 54 grievor She agreed that although the grievor had been told to stop pattIng his chest and using the term "red wax pencil," he had never been discIplined for these actions. -In her view, management should have zero tolerance for harassment and sexual harassment, and in some cases, such as this one, progressive discipline was not called for It is possible that the grievor would have been dismissed for harassment alone. Dr Demshar stressed, however, that he was dismissed for harassment and sexual harassment, and all the other factors she earlier identified played a partin her reaching the ultimate recommendation- she made. Evidence of Mira Bazzul f Ms. Bazzul testified. As already noted, Ms. Bazzul is the Workplace Discrimination and Harassment Prevention Coordinator for the MintStry of Health, assigned to the Ministry's Employment Equity Office. Ms. Bazzul IS responsible for coordinating the complaints filed under the WDHP Policy She is, also responsible for assigning investigators; to complaints and for dealing with investigator's reports. Ms. Bazzul advised the Board that the current WDHPPolicy came into effect in December 1991 There was, of course,a previous sexual harassment policy, and it was carried on in the WDHP Policy Ms. Bazzul received a copy of Ms. Grunwald's November 5, 1991 complaint shortly after it was filed. She requested additional details, which were provided to her the next day The two complaints were, in ~ccordance With the WDHP Policy, registered with Management Board Secretariat, and, given the nature of the allegations, it was decided to proceed with an investigation. Ms. Ferrari, a trained investigator, was available and accepted the case She conducted her investigation and submitted her )' I' ~ 55 " rep6rton December 1 8, 1991 Ms. Ferrari found harassmer'ltand sexuai haras~ment,and concluded, as set OLJt above, that the grievorcontinuallY' harassed Ms. Grunwald and was responsible~ for the, creation of a pOisoned work environment. Ms. Bazzul reviewed this report in consultation with ~ Management Board' Secretariat. The purpose of this review was to ensure that all 'relevant evidenCe had been collected As a result of this review, it was decided that the analysis section was incomplete Ms. Ferrari was contacted and asked to extend her investigation Unfortunately, Ms. Ferrari wason 'aO' extended sick leave Mr Lewis was then appointed, and he too had been trained' under the WDHp: Policy His report was'submitted in March 1992 Ms. Bazzul' reviewed' hiS report and accepted it as a final report. A copy of the report, along, with supporting docum~ntation, was provided to the DepUty -Minister ana other' officials. None'of the supporting documentation made any reference to allegation number 4 I I Ms. Bazzul was asked about the grievor's own complaints of sexuaL and racial harassment. Ms. Bazzul' testified that she received some correspondence from' Dr Chagla on April 29, 1992, enclosing two letters from the' grievor The first of these letters is the grievor's November 17, 1 991 writt~n, response to Ms. Grunwald's' allegations. The second letter was dated ~April 21, 1992 This letter complains that the grievor had been harassed by Ms. Grunwald and Mr Cole Among other things, it states: "I was ridiculed for my colour by Ms Grunwald and MrCole a few times In the elevator Ms. Grunwald asked Mr Cole, 'What colour is the snow on the car?' Then Mr Cole once replied 'white' and once 'yellow "' The letter also refers to various incidents of sample tampering and other improprieties, such as ~ ---~~---- . .".. . '. 56 the process leading to Ms. Gruf1wald's selection as Senior Technologist m 1986 Although the grievor's November 17, 1991 letter did not refer to harassment of any kind, M~. Bazzul registered both letters with Management I Boar.d Secretariat. On May 29, 1992, Ms. Bazzul received another ,letter frOm Dr Chagla, enclosing a further letter from the grievor dated May 26, 1992, referring to sample tampering, among other things, and requesting that his complamts be investigated as soon as possible This letter was also registered with - Management Board Secretariat. Ms. Bazzul replied to the grievor's complaints on June 1-1; 1'992 Her reply recommends that the grievor consult a Workplace Discrimination and Harassment, Prevention adviser, and requests the grievor to prpvide particulars of his allegation with respect to racial discrimination by Ms Grunwald and Mr Cole On June 22, 1992, the grievor filed two additional complaints. One complaint is: directed at Ms. Swee Ho, and it alleges that she asked him to have sex with her It also alleges th~t Ms. Ho knowingly prepared incorrect testing reports. The second complaint is directed against Ms. Grunwald, Mr Cole, and Ms. Sakellaris. It refers to the snow incident. It also alleges that Mr Cole asked the grievor on one occasion, in the staff washroom, whether he wished to sit on a "white" toilet seat (hereafter "the toilet seat incident") This complaint also makes numerous allegations of sample tampering and other improprieties by Ms. Grunwald and Mr Cole, and refers to the 1986 competition won by Ms. Grunwald. The complaint further alleges that Ms. Sakellaris imitated the grievor's speech in an exaggerated way \ , ; 1 ) 57 Ms. Bazzul responded' to, the,grievor's complaints by letter dated JUly .22, - 1992 She noted that the complaint against Ms. Ho"referred to an incIdent that took place in approximately 19;87; and it was one that was dealt' with under the grievance procedure It will be recalled that the grievor filed' a grievance with respect to this matter, but subsequently withdrew it. Ms Bazzul advised the grievor that, in these circumstances, the Ministry would not proceed with any investigation of it. With respect to the allegation of racial harassment by Ms. Grunwald, Mr Cole, and Ms. Sakellaris, Ms. Bazzul wrote "The information you provide in support of your allegations of racial discrimination against Mr Don Cole, Ms. Susan Grunwald' and Ms Maria' Sakkalarius (sic), employed at the London Public Health Laboratoryl is not 'sufficient to warrant an investigation:. II The grievor was advised that he was entitled to proceed with his complaint through other avenues such as the Optario Human Rights Commission Ms. Bazzul subsequently received a letter from the grievor dated July 29, 1992 The grievor asked that the snow incident, which he alleged occurred in January or February 1992, be investigated. It also made numerous references to improprieties in, the running' of the laboratory and raised a new allegation of racially discriminallory comments by MrCole Ms Bazzul replied to this letter on August 21, 1 992 In her letter, Ms. Bazzul indicated that the Ministry might be willing to look 'into two of the 1 grievor's allegations If he provided fturther particulars. One of these allegations was with respect to the snow incident. The other one was with respect to Ms. Ho's alleged tampering, in late 1991 or early 1'992, with the grievor's work. Thegrievor was asked to "complete a complaint form, clearly identifying the respondents in each qf the above two incidents, whether you are claiming harassment or discrimination or both, ground/s J G ,-----" 58 under the policy, and specific dates when the incidents occurred Please do ''- ( I not include the names of any witnesses in the complaint." Blank copies of complaint forms were included, and the grievor was advised to consult with an WDHP adviser to assist him infilling them out. Ms. Bazzul subsequently received a letter from the grievor dated September i 3, 1992 This letter advised her of the grievor's belief that she was not sincere and informed her that he had filed a grievance with 'respect to the employer's failure to investigate his complaints. This grievance is dated August 24, 1992, and it alleges a violation of Article A This grievance was denied by the ~mployer, and subsequently, the grievor decided to filloLJt the compl;Jint forms. He did so on'Sepl1ember 24, 1992 One complaint alleges racial harassment and discrimination by Ms. Grunwald against the grievor and Ms. Johnston It refers to Ms. Grunwald's tampering with samples with her red wax penciL It alleges that Ms. Grunwald patted her chest pocket i [ between 1986 and 1992 as a means of harassing the grievor, and it alleges r that she imitated the grievor'scoughing It also refers to the snow incid~nt. , 1 The second complaint alleges racial harassment and di~crimination by Mr Cole It refers to the snow incident as well as the toilet seat incident. It ! also makes numerous new allegations against Mr Cole, such as that he asked the Windsor Health Laboratory for more faecal specimens "so that I had to process them." It refers to sample tampering and makes other allegations of imprqprieties. The third complaint is against Ms. Ho It ; alleges that Ms. Ho asked the grievor in front of the staff to have $ex with her It accuses her of discarding important samples, and it charges that she imitated the grievor's English in an exaggerated way I " / > ,.. ~ 59 ,- After he had. filed these. complaints, the grievor was advised that he could hot file ~ complaint on behalf of Ms. Johnston, or anyone else 'for (that matter As required; the three complaints were registered at Management Board Secretariat. Ms. Bazzul reviewed. all three complaints, the grievor's previous correspondence, and. discussed these materials with other officials' On Decerpber 11, 1993, the grievor was advised that followmg a thorough assessment of his allegations, the Ministry had concluded that "there was no. basis for proceeding with an investigation" under the WDHP , Policy The grievor was again informed of his right to proceed further, If he wished, by filing a complaint with the Ontario Human Rights CommiSSion. j Ms. Bazzul testified. that the grievor never provided her with the necessary particulars to investigate his allegations of sample tampering by Ms Ho or racial'discrimination by Ms. Grunwald and Mr Cole. According to Ms BazzuJ, particulars are an essential precondition to conducting an investigation since a respondent to a complafnt has a right to know the exact nature of the complaint. In reaching her decision not to proceed to an investigation of the grievor'scomplaints, Ms. Bazzul was alsoiflfluenced by the fact that there were various incon,sistencies in the [grievor's supporting documentation. She also took note of the fact that Mr Cole supervised eIght employees of different races, and that no, other employee experienced any problems of the kind alleged by the grievor On June 8, 1993, MS. Bazzul received a letter from the grievor asking why she decided against proceeding with an investigation of his complaints Ms Bazzulreplied to this request by letter dated July 21, 1993 She noted that the grievor never provided the necessary particulars. "Further, the r -.. ------ - 60 - complaints that you' submitted, both, dated September 24, 1992, included information on incidents which allegedly occurred between i 978 and 1990 I Complaints filed under the OPS WDHP Program alleging incidents of harassmentandlor discrimination that have occurred more than 6 months before the complaints were filed, mayor may not be investigated. ThIs discretionary practice is in, keeping with the practice at the Ontario Human Rights Commission " Cross-Examination of Ms. Bazz,uJ In cross-examination, Ms. Bazzul was asked why she decided, against ordering an investigation into the grievor's complaints. She testified that not only were there ,inconsistencies in the many letters that the grievor submitted, but that many of the incidents were dated and necessary particulars to support an investigation were not present. Ms. Bazzul also pointed out that the grievor had previously brought many of hisatlegatlons of laboratory improprieties to the Ombudsman It was suggested to Ms. Bazzul that as of August 2-1,1992, she had received sufficient particulars with respect. to the snow incident. It was pointed ,I out that the respondents had- been, identified and speCific allegations against them had been presented Ms Bazzul agreed that if the allegations against Mr Cole Were established, thIs incident would constitute (racial discrimination under the WDHP Policy Details, however, were necessary In order that the respondents could properly respond. According to, Ms. Bazzul, Ms. Grunwald's allegations against thegnevor raised prima facie grounds for an investigation under the WDHP Policy The same could not be said With I respect to the grievor's April 21, 1992 letter, which dwelled at length on I I I l 61 '" past events, and this too explained the difference in the Ministry's response' Ms Bazzul noted that the allegations with respect to Ms. Ho had been dealt with in the grievance procedure, and that the grievorhad withdrawn a ..- grievance in which he complained about Ms. Ho sexually harassing him. MSH Bazzulagreed, 'however, that simply because something may have been dealt ~Ith under the grievance procedure did not necessarily immunize it from , review under the WDHP Policy In this case, the decision was made not to proceed with an investigation of it because the i'n<;:ldentoccurred in 1987 \ Ms. Bazzul testified, ~hat the fact the grievor had filed and withdrawn a grievance With respect, to this incident did not affect the Ministry's decision in deciding not to order an investigation of it. Ms.Baz~ut agreed that neither of Ms. Grunwald's letters of complaint provided particulars of the grievor harassing Ms Grunwa'ld with the use of the term "red waxpencili' or by the action of repeatedly patting his chest. -, Ms. Bazzul was askec;J why Ms. Grunwald's complaint was investigated without these particulars, when the grievor's complaint, which was much more particularized, was rejected. Ms. Bazzul testified that additional particulars of harassm~nt were not requested from Ms Grunwald, and that her harassment allegation did not form part of the Ministry's deciSion to ~ \ conduct an investigation That decision was largely based on the allegations of sexual harassment. Ms. Bazzul was asked why Mr Lewis was appointed after Ms. Ferrari had completed her investigation and filed her final report. M$. Ba,zzul testified that she and other officials felt that Ms. Ferrari's report was not complete ~ r 62 ~. in that the evidence. was not fully reflected in the conclusion Moreover, it I I was felt that specific issues needed to be addressed, such as whether the arievor's use of the term "red wax pencil" constituted a form of sexual harassment under the WDHP' Policy or whether it was harassment and not I I subject to that policy Ms. Bazzul testified that ~lIegation number l, if it I was the only allegation present in this case, might not have raised a basis for action under the WDHP Policy In her view, however, the grievor's use of the term "red wax pencil" and his patting of his chest pocket may have escalated into grounds under that policy, and that is why it was properly a subject of investigation even though the Ministry did not ultimately conclude that it ,constituted sexual harassment. The Ministry did conclude that itconstitutedhatassment. Ms. Bazzul was referred to her examination-in-chief and her evidence. that one of the reasons why the grievor's April. 24, 199.2 complaint was not I investigated was because, of certain inconsistencies in his complaint. Ms. 1 Bazzul testified that by inconsistency she was referring to the fact that at one point the grievor refers to discrimination based on race, at another point he refers to the snow incident, and at a third point he suggests that the harassment is due to the fact he is trying to improve himself It was suggested to Ms. Bazzul that none of these allegations were inconsistent I, I and that one cause of racial discrimination is resentment of a person of race who tries to get ahead. Ms. Bazzul testified that she could only respond to what the grievor had presented, and as he had not presented sufficient particulars to his compla!int, she could not take it to the next step. She also pointed out that the main thrust of the grievor's lengthy April 24, 1992 letter had to do with his past grievances, including detailed allegations of sample tampering and other laboratory misconduct. I \ l ,~~. " ....f.. 63 ~ "' Ms. Bazzul was ,asked why she refused to investigate the grievor's complaint about Ms. Hoon the basis that it was alleged to h~ve occurred in ~ 1987, while she was willing to investigate Ms. Grunwald's complaint that involved harassment said to have begun in 1986 The witness replied that the policy provides her with the discretion to decide wh~ther to investigate complaints that involve incidents that are alleged to have occurred more than ~ix months previously And, she pointed out, it was the investigator who decided, in the case ofMs Grunwald's complaints, to consider evidence dating to 1986 Moreover, that investigation was initiated because of very specific allegations of sexual harassment. According to Ms. Bazzul, in deciding not to investigate the grievor's complaints, she did not reach any conclusi~ns as to whether the grievor's allegations were true Rather, she made her decision on th~ basis of the Information provided to her, and, in her view, that information was not sufficiently particularized as to warrant an investigation. Moreover, she made note of the fact that in each of the grievor's letters, the details of the incidents changed 'and new incidents were raised. The Union's Case Evidence of Vicki' Karigianis Ms. Karigia_nis testified. She worked at the laboratory alongside the grievor and also reported to MrCole. In her time at the laboratory, she often saw Mr Cole and the grievor in conflict; for example, when the grievor did not wish to do something requested of him. She never heard thegrievor use \ profanity She got along well with the grievor, but noticed that the grievor did not get along very well with Ms. Ho -- / 64 " Cross-Examination of Ms. Karigianis In cross-examination, Ms. Karigianis agreed that the grievor would argue with MrCole when he refused to obey one of Mr Cole's instructions She testified that Fhe grievor would eXJ:>'ain that the request was not in the laboratory manual In her view; the grievor could have communicated his views to Mr Cole in a nicer way Ms. Karigianis was not aware that the grievor had complained ~bout her to majnagement. She was aware that the grievor did not get along with Ms. Grunwald and Ms. Sakellaris, and that both these women were tired of the continual tension created by the grievor Ms Karigianis a'lso became tired of this tension She agreed that morale In the 1 laboratory had improved since the grievor's termination. Evidence of Sal Dost Mr Dost testified under union subpoena. He. began work at the laboratory In , 976 and is currently the local union president~ Along, with the grievor, Mr Dost grieved the outcome of the , 986 job competition. He feit that Ms Grunwald won that competition because the "fix" was in. He testified that Ms. Grunwald and Mr Cole frequently ate lunch together Sometimes other employees wOuld join them. Mr Dost signed the August , 988 petition He testified that Mr Cole, his ( supervisor" came to him and said he had to sign it because one person, the grievor, was ruining the entire laboratory Mr Dost felt somewhat coerced into signing the petition, but also testified that he thought that if he I signed, the petition would come to the attention of the Director and some action would be taken. Mr Dost had a normal relationship with Mr Cole and Ms. Grunwald. 65 - Mr Dost was asked if morale would be affected if the grievor was re~l1stated. He testified that he did not have any problems with the grievor in the past and would not expect to have any problems in the future He noted, hQweyer, that the grievor did not "document him," and he testIfied that- he was there to do a job, not toas~ociate with others. Mr post was asked whether: the fact that the grievor and Ms. Johnston 'lived together would affect -morale ~r Dost did not know if it would or would hot. He testified that Mr Aldom's son occupied a temporary position in the laboratory~ and that Mr Grioux's daughter also worked there as, a summer student. Cross-ExaminatiOn of Mr. Dost Mr ,Dost testified that while he grieved the 1986 competition, and while he competed in the rerun, he di~ not, unlike the grievor, grieve the Jesuit of the rerun Mr Dost testified that the grievor has complained about him. On' I I several occasions; the grievor has called union headquarters to complain that he was misappropriating union funds. These claims are completely false,. Mr Dost agreed'that many difficulties in the laboratory were caused by the grievor and that this explained the petition, although he personally signed it under pres~ure Mr. 'Dost witnessed the November 20, 1991, incident when the grievor refused a request from Mr Aldom in front of the Fanshawe ( College students. Mr Dost does not believe that the grievor acted properly on that occasion. Mr Dost was also aware of the grievor referring to red wax pencils whenever Ms. Grunwald was around. He agreed that this conduct had a negative impact on laboratory morale. / / y - 66 Mr Dost reports to Ms. Johnston. He agreed that Ms. Johnston' advised him that it was likely that the grievor would soon be returning to his position at the laboratory When he was subpoenaed by the, union to give evicie,nce in \ these proceedings, he appro~ched Dr Chagla and asked why he had to testify' He advised Dr Chagla at th~t time that he was worried that his giving - evidence" in these 'proceedings might negatively effect his relationship with hiS supervisor, Ms. Johnston I I Re-examination of Mr. Dost I I In re-exa~ination, Mr Dost was asked about the employer's attitude towards the srievor, and he testified that the employer wished to get rid of him )' Evidence, of Cathy Johnston Ms. Johnston testified. She has worked at the laboratory since 1981 She and the grievor have lived together since '986~; She became Senior Technologist in the Clinical Section on June " 1993, following the I 'retirement of Mr Cole. According to Ms. Johnston; the grieyor's relatIonship with Ms. Grunwald deteriorated after Ms. Grunwald won the Senior -- Technolo,gist position in '986 Ms. Johnston was asked to Gomment on Ms. (,. Grunwald's June 1986 report to the Director which she -prepared after she had supervised the grievor for one week. In Ms;Johnston's view, the report was picky and unnecessary Ms. Johnston is of the view that the grievor could be reintegrated into the workplace. She is aware that a lot of employees do not like the grievor, and she is of the view that this is the case because the grievor is opposed to favouritismand that these employees try to, become "favourites." Some -of I " ' . ~ r 67 I' I /~ these employees do not appreciate the grievor's references to apple polishing,but Ms. .:Johnston testified that these references are usually taken as a joke According to Ms JOQnston, Ms. GruAwald was not very nice to her Ms. Johnston- believes that Ms. Grunwald has problems with people of different races, but she ,did not provide any details to support this charge Ms Johnston has ,never heard thegrievor use profanity, even though they have regul~rly worked together in the same room. Cross-Examination of Ms. Johnston In cross-examination, Ms. Johnston testified' tl1at she believes that the grievor was unjustly dismissed Ms Johnston- was aware of. the grievor's use of'the'term "red wax pencil"in Ms. Grunwald's presence, but stated that on some occasions when he asked for a red wax pencil, and MS. Grunwald was around, he really needed it. Ms. Johnston was., aware thatsomepe()ple who' worked with the grievor found the atmosphere tense. She agreed, that she knew notring about the circumstances behind Ms. 'Grunwald's preparing' her june 1986 report to the Director as she was not around at that time, nor was she involved with the incidents documented in it. \ Ms. Johnston was asked about her conversation with Mr Dost" and she confirmed that she advised' him that the grievorWould likely soon be , returning to work in that his termination grievance was proceeding well at this Board. She testified that she hoped that this occurred. After making this remark to Mr Dost, Dr Chagla counselled her to be more careful about what she said in the future. Ms. Johnston agreed that the grievor should a~cept responsibility for some of the things that have occurred. , 68 Re-examination of. Ms. Johnston In' re-examination, Ms. Johnston testified that she has been harassed by Ms. Grunwald Ms Grunwald has said such things to her as "Don't open the laboratory fridge so much" Ms. Johnston testified that other employees are allowed to keep the fridge, door open as. long as they like Ms. Johnston also stated that Ms. Grunwald has diminished her opportunities to,learn, although no details were provided. Ms. Johnston testified, that Ms. Grunwald would speak to other staff, but she would not speak to her Ms. Johnston advised the employer of this behaviour and suggested that this constituted harassment. Ms. Johnston understands that Mr Aldom spoke to Ms. Grunwald about this complaint, and after he did so the harassment stopped Evidence of Robert McNamee Mr McNamee testified He has been employeq at the laboratory for six' years and manages the supply room. lOne, day, in February 1992, he rode the I I I elevator with Mr Cole and the grievor To the best of his recollection, no I one else was in the elevator While he cannot remember the' details, _he I I I recalls Mr. Cole saying something to the effect of "watch out for yellow snow" Mr McNamee cannot recall any context to this, conversation, I I although he could tell that it was said as a joke Mr McNamee believes that '! I the joke refers to not eating anythmg that someone had urinated' on Mr I McNamee did not believe that the Joke was racially motivated Cross-Examination of Mr. McNamee In cross-examination, Mr McNamee agreed that he signed the August 1988 petition and testified that he did so because he was in agreement that something needed to be done He testified that the bad morale in the 69 ..,;. _ laboratory was caused, by the grievor Mr McNamee' did not think that the grievor should, be tetmi'nated, but that some~<:tion sho!-.lId' be taken' to ameliorate the' situation It was common" knowledge in the laboratory that the grievor al"!d Ms. Grunwald did not get along. Mr McNamee witnessed the grievor patting his chest pock~t and heard him refer to red wax pencils In front of Ms. Grunwald on countless occasions. Mr McNamee has noticed that workplace morale has improved since the grievor was terminated and that employees ,generally appear to be !!Jetting along better with each other Re-examination of Mr. . McNamee In re-examination, Mr McNamee testified that as far ashe was aware, m~nagement never took any action after the August 1 988 petition was submitted Evidence of Chong Koh, Toe grievor testified. He told the Board that he is 5,2 years old and divorced with three children H~ ,came toCafilada from Korea in 1971 He has a 's<;ience degree -from ,Seoul ,National University and-has various ad~anced Certificates and diplomas in medical 'microbiology' He joined the Ontario PlJblic Service ,in 1974 He began work for the Ministry at the Kenora laboratory When that laboratory was closed he moved to" the London laboratory In addition to working as a' laboratory technologist, thegnevor has held various local' union positions and was union president for a number of years In June 1 986, some time after Ms. Grunwald won the job position, she had I occ;asion to supervise the grievor According to thegrievor, during the course of that superviSion Ms. Grunwald, using a red wax ,pencil, tampered ~, 70 I ~ with his' samples by changing his plates As a result of this incident, the , grievor began using the term "red wax pencil." ~ Other s~pervisors engaged in inappropriate activities as well, and the grievor t~stified that members of manag~ment started "nit-picking," as well as sending him groundless letters complaining about his conduct. With respect to his conduct" thegrievor testified that many of the things that were said about him were untrue. For ,example, he did not use profane language, except "quietly with Mr Dost." The grievor is of the view that Mr Cole was biased in the manner in which he supervised him and that this was one of the mainprobJems he encountered in the laboratory This biased supervision also' had the effect of creating a glass ceiling preventing the grievor from advancing in the laboratory The grievor testified that the 1 majority of his grievances dealt with Mr Cole, and that filing these ~rievances was an effective method of communicating his concerns about Mr Cole to management. In'the grievor's view, h~ could return to work now that Mr Cole has retired He does not think that any other employee would nQw use a red wax penCil to change his work. He believes he could put his feelings about the 1986 job competition behind him, and says he will stop referring to red wax ,pencils., In that regard, he testified that no one in management ever told him not to mention red wax pencils According to the grievor, If he is J reinstated, he will also stop using the terms "apple polishing" and "shoe shining. " Indeed, after the August 1988 petition, he had virtually stopped c using those terms except as a joke - 71 I the grievor recognizes that he has been part of the problem if! the laboratory He testified that he was sent for counselling as part of the" settl,ement of an unfair labour ,practice 'complaint he had. filed After this - settlement was reached, the grievor contacted management several times in order to schedule an appointment. The grievor was asked" about the two medical reports extracted above, and he testified he was not in complete agreement with them~ He thin.ks that the counselling did work The problem was not with him, but with Mr Cole If Mr Cole and other members of management had told him not to refer to red wax pencils, then he would' not have done so " The grievor was aske~ about Ms. Gunwald's harassment complaint. He, testified that he receiv.ed the letters of complaint at a meeting, with "management held on November 12, 1991 He understood from those letters and tnismeeting that he was bein~ investigated for sexual harassment. He was aware of a workplace sexual harassment prevention program, as that program had previously been discussed at a staff meeting During the course of the ensuing investigation, the grievor was asked' about his relationship with other employees, as well as about his use of the term "red wax penciL" He did not think that these q!Jestions were' the main thrust of the investigation, and considered them to be more in the nature of background questions, such as those relating to his age and place of birth He testified that if he had been informed of the true nature of the investigation he would have asked for more opportunity to explain to the investigators different workplace events, such as the August 1988 petition With respect to Ms. Grunwald's specific complaints of sexual harassment, - -- ( .. 72 0 the grievor testified that he never used the words "cuf,lt" or "fucking cunt." He testified that it would have been impossible to use those words in the workplace because the ,configuration of the laboratory was such that he would be overheard. He noted that many of the doors to the corridor are ',I kept open, and had he used those words other employees would have heard him. He also pointed out that he was on vacation from October 18, 1991, to \ November 3, 1991, 'so it would have been difficult for the, incidents complained about to have occurred when Ms., Grunwald ~~ggested they did However, while the, grievor definitely never made any lewd gestures to Ms l ,Grunwald, it was possible that she might have mistaken his scratching himself as a lewd gesture. A letter from thegrievor's dermatologist to union counsel, dated June 29, 1993, was introduced into evidence This letter indicates that at the time in question, and for'some preceding period, the ,grievor was treated for an \ "itchy rash which involved his arms, legs and back." There was also some "involvement of the upper thighs." The condition required antibiotic I '1 . ' Thegrievor therapy, but was resistant to treatment until March 18, 1992 \' testified that he did not tell either investigator about thi~ medical condition. He also testified that he has no recollection of scratching himself in, front of Ms. Grunwald. He noted, however, that h~ spent his vacation working eighteen hours a day at a friend's store without taking a bath, and that this might have aggravated his condition upon his return to employment. The grievor was asked about his own complaints of sexual and racial harassment. He testified that the snow incident occurred in January or February 1992 According to the grievor, there were two separate '," -' ~-- .. ",. ' ., 73 incidents. On the first occasion, MrCole and Ms. Grunwald were present~ It ~ was unusual for Mr Cole and Ms. Grunwald' to be on the elevator with the '" grievor as they usually avoided him. According to the grievor, Ms. Grunwald said, "bon, what is,the colour of snow" Mr Cole then said "white" The second i'ncident occurred several days later and only Mr Cole and Mr McNamee were present. This time Mr Cole referred to "yellow snow" The grievor testified that this waS not the first time that Mr Cole had made a racial remark. The grievorwas asked about his various efforts to bring this a,nd his other complaints of raci~1 and sexual harassment to the attention of management - so that a proper investigation could take place. In his view, Ms. Bazzul was \ very reluctant to take his complaints seriously~ and to his knowledge neither Ms. Bazzul -nor any other member of management has' ever interviewed anyone aboljt his ,complaints Cross-Examination. of Mr. Koh I I The grievor was asked a great many questions over the course of a I cross-examination that~took place over several days. Much of thegrievor's evidence was contradictory, and this Was demonstrated time and time again when he would answer a question In cross:"examination one way, but then be ,referred to one of his own statements or letters that was to the exact opposite effect. For example, the gnevor testified that he did not have a problem with Mr Cole's technical competence, but was then referred to one of his statements in which he wrote that "Mr Cole is not the right person to be a witness for any of your investigation based on his personality, morality and technical competence as a technical supervisor" When the contradiction was pointed out to him, the grievor testified that while he 74 , ... did not have a problem with Mr Cole's technical competence, :he did have a problem with his "technical ability" In the same statement, dated November 17, 1991, the grievor wrote "Mr Cole's technical competence .is doubtful" There were numerous examples of contradictions of this kind II In other cases, the grievor alleged that certain statements that were attributed to him were fabricated by others. For example, while Mr LewIs recorded in his report that the grievor "despised" Mr Aldoli'l, thegrievor testified that he never said this and that Mr Lewis had made it up. Indeed, the grievor testified that Mr Aldolin gave him low performance appraisals ~: because he was forced to ,do so by Dr Maharajah. The grievor testified that he respected Mr Aldom. The grievor agreed. with the suggestion that he has, \ I without exception, had difficulties with all his supervisors. It was true enough that Mr Alqom had counselled the grievor to forget the past. \ However, the grievor told the Board that Mr Aldom never mentioned "which past. " ) In regard to the past, the grjevor testified that he believes, that the source of his problems with Ms. Grunwald is her jealousy of him. Even though the competition for her position was rerun, the grievor is still of the view that ) I the procedure was ,flawed, although he accepts the Grievance Settlement Board decision that it was not. After the grievance procedure was exhausted by the Board's decision, the grievor complained to the Ombudsman about this matter, but was informed that due to the passage of time there was nothing the Ombudsman could do In June 1992 the grievor agam raised his concerns abou~this competition in the context of a racial harassment complaint. In brief, the grievor believes that Ms. Grunwald was given the questions and answers in advance and that the competition was fixed. He ~ ~ - ~ 75 ; does not hold this ,against Ms' Grunwald', because if he had been- offered the - questions and- answers he would have taken them too Upon examination, it became clear that the grievor does, in fact, hold this ( job competition result and other incidents against Ms. Grunwald He testified that she does not work honestly and that she would throwaway. \ the grievor's work. Various incidents were described. Suffice it to say that although the grievor never saw Ms. Grunwald engage in these practices, he knew she was doing so The grievor did not appreciate being: "docum~nted!' by Ms. Grunwald in June 1986 The grievor began to refer to red waX' pencils and to pat his pocket only after he observed Ms. Grunwald do: so in reference to him. From the grievor',s point of view, the purpose of his doing so was to ensure that people did not "cheat onhim.I':According to ! the grievor, at no time did either Mr Cole or Dr Chaglaask him to, stop referring to red wax pericils~ And if they said they did so, which, both did in their evidence, then they were'l~ing. Thegrievor advised the Board that Mr Dost lied in 'his evidence in order to protect himself and that Ms. Ho also lied when she denied his allegations of sexual harassment and further denied tampering with :his samples Variou~ other people 'lied too, for example, Mr Cole tampered with tlile grievor's samples in order to help Mr Aldom fire the grievor The grievor was asked about hisevldence.in.chief in which he testified I that most of his grievances concerned Mr Cole Each of these grievances i was reviewed, and it quickly became apparent that this was not the case While some related t~ Mr Cole, many others did' not involve him in ,any respect. Of some sixteen grievances that were reviewed, only five related to Mr Cole. - ,- -~-~...-;.-- I. \ ":'J.. 76 ::, The grievor agreed that manaQement has advised him he was. the cause of stress in the workplace Various letters to this effect were, referred to, but the grievor testified that no one ever told him what exactly they were y referring to The documentary evidence, however, indicates otherwise For I example, in a letter dated S~ptember 20, 1988, sent to t~e grievor in the aftermath of the August 1988 petition, he is advised that the employer will no longer tolerate behaviour that is contemptuous of members of management, not to mention the grievor's inability to cooperate with other employees, and his antagonistic attitude The grievor testified that some of these documents merely illustrated:: management's.biased attitude towards him~, The grievor also, as already noted~ received a three-day suspension for insubordination. With respect to the Fanshawe College incident, the grievor testified that it is not insubordinate to ctsk if a certain duty is set out in one's job description Mr Cote did not like the grievor~ because the grievor did his job too well. The grievor ,noted that Mr Cole's biased nature was illustrated by his requiring the grievor to test feces. He agreed, however, that testing feces was part Of his regular job Thegrievor admitted to using profane language in the laboratory, but testified that it was never directed to. anyone personally He has never, in his life', said "fuckingcunt." He stopped using profane language when the employer asked him, to do so, except in the presence of a close friend like Mr Oost. With respect to that friendship, the ,grievor felt th~tit was his duty, as a former local union president, to bring his concerns about Mr ,Oost's expenditure of union funds to the attention of the appropriate \ authorities -, -.'- - -, ' - ~ .,...- 77 \ i' , According'to the 'grievor, his time at the laboratory' 'was "hell, "and he ,. stated that he accepted some responsibility; for this because he was there when it happened. The grievor has never provoked anyone, rather, he has, always been' the one Who, was provoked by others. The grievor got a'long I, I I with some, employees, such as Ms. Jara Steiner, but noted that she, too, was a cheater The grievor also got 'along with Ms Sakellaris, and testified that he wrote what he did because of her interest in fluorescence and to be niGe 1: to her At some point, the grievor asked Ms Sakellaris if she was offended by what he wrote, and she told him that she preferred it to being stabbed In the back. The grievor understands from this conversation that Ms Sakellaris was not -offend~d by his activities. The grievor did not appreciate Ms' Sakellaris imitating his English The grievoragreed that one time when Ms. Sakellaris/sfiance telephoned the laboratory and told the grievor that he, the fiance" did not appreciate the grievor upsetting Ms Sakellaris,_ thegrievor told him to IIfuck off'lI He testified that he felt that he could do so because the fiance, was not an employee. The grievor was asked about Ms. Grunwald/sletter of complaint dated / ' \ < November 5; 1991, and he agreed that it referred to on-going harassment ., beginning in 1986. He also agreed that the first 'paragraph- of this letter referred to his use of the- term "red wax pencW' and his habit of patting his breast pocket when doing so When the grievor met with Ms. Ferrari, the - first thing they discussed was this particular allegation of harassment. The grievor testified that he was not surprised that this was discussed The grievor was asked about his understanding of harassment. He testIfied that he has taken a course on the OPS WDHP Policy In his view, harassment includes many things, including taking a cork from a test tube The gnevor I '... . .~ 78 did not agree that ne directed the term "red wax pencil" against Ms. GrunWald. He did agree that everyone else in the laboratory thought he was ~ directing the term against her, but he noted he wOl,Jld refer to the term in her absence as well The grievor was referred to his written reply to Ms. Grunwald's allegations dated November 17; 1 991 He agreed that th~re was no re,ference in this letter to complaints of racial harassment, but pointed ,out that the snow incident had not yet occurred. The grievor met with Ms. Ferrari in early December 1 991, and he agreed that he referred in that meeting to various work-related incidents, but did not refer to any racial haras~ment. The first reference to racial harassment is in the grievor's April 21, 1992 letter At around the same time as the grievor ra~sed his concerns about racial harassment with the employer, he also complained to the Ombudsman. The Ombudsman did not inVestigate the grievor's complaint because it was "his Word against theirs." I The snow incident occurred in January or February 1992, and the grievor was discharged on March 27, 1992 He was asked, given his readiness to , file grievances in the past, why he waIted so long to make his concerns about racial harassment known to the employer He agreed that whenever \ anything else happened that he did not like, he let management know about it, and also availed himself of the services of the Ontario Human Rights Commission and the Ombudsman. The grievor agreed that he met with Mr Lewis in March 1992, after the snow incident had occurred, but that he did not mention it to him. 1 ~ 79 ,~. What he did mention to Mt' Lewis was the tremendous harassment that he had experienced 'in the WQrkplac~ He did not go into detail because he was being investigated fdrsexual harassment, and he did not c()nsider it , appropriate to raise his particular concernS in the. context of th,at investigation Later on, after _he wasH fired for using the' term "red wax pencil, II, the' grievor decided that his complaint should also be investigated The grievor believes that'Mr Cole harassed him on the basis of race ever since he joined the laboratory; but testified that; with the exception of the' snow incident, he never did so in front of others. The grievor agreed that he has had a number of opportunities, over the years" to bring hisconcern's about racial harassment to the attention of the authorities For example, he never raised this concern in the context of his grievances respectmg the 1986 job competition The grievorinsisted that Ms' Grunwald was on the elevator when the'snow incident took place While the union's witness, Mr McNamee,had testified otherwise, the grieyor stated that Mr McNamee was mistaken He also -, stated that contrary to what Mr Cole and Mr McNamee had tes~ified, the reference was not a joke. The grievor agreed that his first complaint of sexual 'harassment b~ Ms Ho was filed on June 22, 1992 He testified that he 'had ~een humiliated by Ms Hoasking him in front of other employees to have sex with her, and he noted' that if the tables had been turned he would have been fired a long time ago Thegrievor agreed that his first reference to racial harassment by Ms Ho was made in his letter of September 24, 1991 He testified that he filed this complaint after remembering how Ms. Ho had imitated his English ~ -, 80 ~ The grievor did not appreciate being' told to limit his complaints to two incidents. He agreed, however, that he was given some assistance in I formulating his complaints by a WDHP adviser In the grievor' 5 view,. all his allegations about improprieties in the laboratory, dating back to 1985, are properly the ,subject of an investigation. The grievor believes that the only reason he was sent for 'counselling was so the employer could find something against him. Counselling was a tactic used by management as part of its strategy to secure the grievor's dismissal. The grievor did not , , agree with the suggestion that Dr Chagla attempted to assist him in fl:lrthering his training. All that Dr Chagla did was his duty as the Directqr - The grievor was asked about his medical 'condition. He agreed that in his interview with Ms. Ferrari he denied making any gestures. However, he now believes that it is possible that some people may have noticed his scratching The grievor agreed that his doctor's letter did not refer specifically to the groin, area, but testified that his -entire body' was affected by the rash. It is possible that thegrievor scratched himself when ~ looking at Ms. Grunwald, but he has no recollection of doing so. The grievor believes that he can be reintegrated intp the workforce He does not think that the fact that Ms Johnston would now be his supervisor is any cause for concern The gnevor IS happy to have so many witnesses come forward on his behalf, and'thinks this augers well for his I reinstatement. The fact that Mr Cole IS retired also figures prominently in his assessment that all will be well If the grievor had been told what was d wrong', he would have corrected the problems a long time ago If he gets his job back he will keep quiet, even though he does not like it when other I people tamper with his' work. 81 ? Re-examination of Mr~ Koh In re-examination, the grlevor repeated his evidence that he was never told to keep his problems and concerns to himself Indeed~ he believed that If he did not r,eporthis problems and cOl'i1cerns he could be disciplined. The grievor reiterated his evidence that he never made an obscene gesture, and noted that there were' too many pe0ple around for him to do so Management never discussed the counselling reports It received with him, although: the grievor received copies of them soon after they were written , Argument The evidence having been concluded, the case, proceeded to 'argument. Employer -Argument Turning to the dismissal grjevance first, employer co~nsel argued that the evidence clearly established just cause The investigatiofl established that the, grievor' engaged in, a, pattern of harassment, and: also engaged in specific incidents of sexual harassment. This behaviour' attracted discipline and allowed the employer to consider the grievor'sentire record in determming I the quantum of discipline. Counsel submitted that as the record consisted of a three..day suspension and a counselling letter as well as several unsatisfactory performance appraisals, dismissal could only be seen as an appropriate management response ,~ Counsel pointed out that the evidence established that the grievor began to harass Ms. Grunwald in the aftermath of the 1 986 job competition. , Sometime after losing that competition, Ms. Grunwald had occasion to supervise the grievor briefly, and, believing that she tampered with hIS plates, he began to refer incessantly to red wax pencils. Employer co u nse I .. 82 .- reviewed developments in the laboratory from 1986 on" and made reference to many of the incidents involving the grievor which, occurred 'over the years. In the ,employer'~ view, the evidence establishes that the jgrievor's :1 misbe~aviour escalated in the fall of 1991, and, after it did, MsGrunwald's formal complaint was .filed In the employer's submission, the evidence not only clearly established an on-going pattern of harassment, but also established' that the particular incidents of sexual harassment Ms. Grunwald complained about actually occurred The first incident involved the grievor calling Ms. Grunwald CI "cunt." Not only did Ms. Grunwald testify to this incident having taken place, but that testimony was confirmed by Mr Coie, who heard the grievor say it. Sometime, thereafter, Ms. Grunwald testified that the grievor called her a "fucking/cunt." This incident was witnessed, by Mr Cole, who testified to overhearing the grievor make this remark. In the employer's view, further~ corroborating evidence could be fourndin the'testimony"of Mr Aldom, who told the Board he witnessed the grievorsay something to Ms. Grunwald, and when he approached her immediately thereafter, she advised him she was upset about. what had just occurred. In addition, Mr. Giroux,.. a member of the bargaining unit, also testified' to observing this incident taking place All this evidence, employer counsel arg,ued, clearly established that thissecorid incident took place as Ms. Grunwald alleg~d I Not only did the ,evidence prove, in the employer's view, that the grievor verbally sexually harassed Ms. Grunwald, but it also established that. he did so by making gestures. Employer counsel noted that these gestures were the proximate cause of Ms. Grunwald's complaint being filed. ,She noted that there were no 'witnesses to either of the lewd gestures, but suggested that .. ,.".,. ..~:"r. "- 83 I ..:. the Board, was in a good position to make findings ba,sed on cre-dibility In that regard, employer counsel pointed out that the grievor was freq~ently evasive in cross-examination, and contradicted himself on countless occasions The' Board was urged to disregard the grievor'smedical explanation 'for his gestures, and pointed out that this explanation was proffered' rnany months after the grievor was dismissed I The manner in which the grievor denied the allegations of sexual harassment was, counsel argued, noteworthy Instead of simply saying that the incidents had, not occurred, the grievor qualified his response by saying that they had' not occurred because someone might have seen or heard him. This was an,other reason to -prefer Ms Grunwal<;t's'evldence to that of the grievor This evidence, along with the eVidence of supporting witnesses, proved that the incidents" took place as alleged Counsel argued that these ( incidents more than supported discharge ,as a proper disciplinary response. ' The fact that the ,grievor continued to pat his chest pocket after the ? , complaint was filed confirmed, the appropria,teness of that response Counsel pointed out that the evidence was also clear that management did not rely in any way on allegation nl!Jmber 4 in determining that response While harassment was not covered by the WDHP Policy, employer counsel argued that there was no question but that ,management was entitled' to discipline for harassment whereappropnate The harassment present in I the instant case was, accordingly, properly reviewed and considered by I management, alongside the sexual harassment which was also established in the investigation Counsel conceded that the employer had been aware for a number of years of the grievor's harassment of Ms. Grunwald, but argued that the evidence did ,not establish any condonation of that co_nduct. 84 - Repeated efforts were made to correct the grievor's behaviour Both Dr Chagla and Mr Cole '~sked the grievor to stop, and Dr Chagla and Mr Aldom ^ had many meetings with the grievor in their ultimately unsuccessful efforts to encourage him to stop dwelling on the past. After the grievor's behaviour escalated in the fall of 1991, and when ~his was confirmed in the investigator's report, the employer finally realized that air these efforts had failed and that drastic measures were called for' Employer counsel pointed out that notwithstanding his 'evidence on pOint, the grievor was clearly aware that his behaviour was threatening his continued employment. He was told in ,no uncertain terms, for example, on September 20, 1988, that further misconduct could lead to dismissal The evidence established, counsel argued, considerable further misconduct I Counselling, counsel noted, had not helped. In the employer's, submiSSion, this was not an appropriate case for mitigation While the grievor was a long-service employee, his service was long and troubled There was no 't'> j "good record" to balance 'against the "bad record." This was not a case of a temporary lapse of judgem~nt. It was, instead, a case of systematic on-going and escalating harassment of one employee by another Indeed, the evidence, in the employer's view, led to only one conclusion: that there had I I , i been a complete and fundamental breakdown of the employment relationship. Accordingly, counsel urged that the termination grievance be dismissed With respect to the grievance alleging a violation of Article A, employer counsel suggest~d that the timing of the grievor's complaints should be kept in mind., She noted that the grievor had many opportunities to bnng his I, concerns to the attention of management, but did not do sq until well after ) - i, 85 '" he was dismissed Some of his complaints, such as racial' harassment by Ms Ho, were made months after he was ,dismissed Counsel urged the Boa rd to keep in, mind the fact that the grievorhad never proved reticent In the paSt to bring' his concerns and complaints to the attention of management. In counsel's view, the employer acted, quite properly inc deciding nqt to - proceed with parts of the 'grievor's various complaints, such as his grievances respecting the 1986 Job competition Counsel also argued that there Was nothing improper and everything proper in asking the grievor for particulars abOu,t two of his complaints This, surely, counsel argued,dld not constitute a violation of Article A. Counsel also asked that this grievance be dismissed .J In conclusion, the employer submitted that there was no conspiracy against the grievor There was' aiso no hope of ever rehabilitating this employment relationship The grievor was simply unable to appreciate the effects of his behaviour, or to correct it. While every effort was made by the employer to maintain this employment relationship, the grievor by his -' persistent and escalating misconduct made its 'continuation impossible Union Argument Union counsel' began his submissions by' noting that the, grievor was a very unpopular and difficult employee Moreover, thegrievor was often not a likeable employee But neither popularity nor likability mattered in this case What mattered was credibility and whether there was any just cause for discharge In counsel's submission, the evidence of thegrievor was credible and should be preferred to that of Ms. Grunwald. If the grievor's evidence was preferred, then there was no just cause, and thegrievor must ;' ( '~, :,.: I 86 I ~ I ~ 'be made whole notwithstanding the fact that he may ,be n'either likeable nor popular Counsel pointed out that the ,grievor is a dedicated laboratory- technician He has taken a great many courses in order to improve himself The grievor has demonstrated his dedication to the highest standards of his profession, by bringing concerns about laboratory standards to the attention of management. For instance, thegrievor was concerned about the running of the 1986 job competition, and these concerns were not, employer counsel pointed out, groundless in that after he filed his grievance, management reran the competition. This competition also marked the .startof the grievor's difficulties at the laboratory Union counsel point~d out that it was fairly strang~ that Ms Grunwald would write a negative report about the grievor at her first opportunity to do so, and it should be kept in mind that she did so when 'her own job promotion was under attack. In counsel's view, this was a set-up Moreover, it was counsel's submission that all the evidenc~ of negative Job appraisals was similarly suspect, given the grievor's established skills as a laboratory technician. There was every reason to believe, as the gnevor I had testified, th~t it was Ms. Grunwald who initiated the pocket patting and the references to red wax pencils as a 'way to remind the grievor that she could get him. There was nothing surprising in 'the fact that the grievor did not react well to being falsely accused by Ms. Grunwald about the quality of his work Moreover, while it was true that the grievor did' "document" other employees,he only did so after le~rning that Ms. Grunwald had, at the c 87 Director!s request, "documented" him. Unfortunately, one of the, effects of the grievor's domg so was to increase his unpopularity- with his co-workers. Counsel npted that thegrievor 'did change his behaviour after the Augl,Jst 1988 petitionr The grievor received a reprimand letter the' following month, however, his' record then remained clean until his dismissal, other than the' ,counselling letter arising out of the incident in late 1991 With the students from Fanshawe College This was another fact that the union urged the Board to keep in mind. And" counsel argued, these facts proved that until the date of the grievor's discharge, the employer did ,not consider the grievor's conduct una'cceptable in any significant respect. Th~t,of course, changed in the. fall of 1991 V'{hen Ms. Grunwald filed her two letters 'of complaint., In the union's view, given the fact that the employer was well -aware of the grievor's use of the term-"red wax pencil," the employer should not be able to rely on that "harassment" to support Its termination decision, the employer clearly communicated to the grievor that it did not consider this conduct disciplinary, as was illustrated by the fact that he was never disc;:iplined for it. Moreover; counsel took the I position that the grievor was never charged with -harassment. He was only charged with ,sexual harassment, and this was confirmed by the fact that the investigation was conducted pursuant to the WDHP Policy Counsel pointed out that the cljlmitiating incident rule allows an employer to consider an employee's past disciplinary record in assessing the appropriate penalty for some new act, but that should not extend, in this case, to incidents which were known to the employer and which never attracted any disciplinary response Accordingly, it would not be proper, m -;- 88 ! th~ union's view, to consider the harassment aliegations or findings in any assessment of just cause Turning to the sexual harassment allegations, counsel argued that only these particular a"~gations should be 'considered, -by the Board in deciding whether the employer terminated the grievor with just cause In the union's view, the evidence established that the incidents complained about did not happen Counsel noted that the incidents were said, 'to have taken place in a very public cOrridor This did not make any sense It was also odd, counsel suggested, that, two of the witnesses to the different encounters were other members of management. One of these member:s of management, Mr Cole, had' spearheaded a petition campaign a,gainst the grievor and had been actively seeking his termination for quite some time Other circumstances also cast doubt on whether the' incidents had taken place., In the union's submission, it defied -common sense to believe that the grievor called Ms. Grunwald a "cunt" and that Mr Cole did riot report it to his superiors., There was, counsel argued, considerable, evidence that Mr Cole acted against the grievor with bad faith With respect to 'Mr Aldom's evidence, counsel suggested it was strange that he placed the purported incident he witnessed' atone place In the corridor and Ms Grunwald placed it at another One would expect, counsel argued, given the seriolisness of this matter, that both witnesses would be reasonably consistent with respect to what they had seen. Counsel pointed out that there were no witnesses to support Ms. Grunwald's allegations of obscene gestures. In these circumstances, given the seriousness of the charge and the potential consequences for the grievor, .. -- '. -,...-.--.... .-.--.. '''- -------- --- -- \ '- 89 - counsel: ,argued that the grievor should be belieJed; and he noted that the . grievor did have a medical expl'anatiQn for what might have happened It was most unlikely, counsel suggested, that thJ grievor would make obscene gestures in the corridor Furthermore, the all~gations of these incidents was inconsistent with the grievor's evidence t~at he had moderated hIs behaviour in the ,aftermath of the August 198d petition \ With respect to the grievance, alleging a violation of Article Ai counsel ~rgued that it. did not really matter whettler t~e grievor's allegations of racial and' sexual harassment were true What ~attered was' 'how the ,. '., . , .' . , employer 'responded to those' allegations. That response, counsel ~rgued, illustrated a double' standard. What other particulars, counsel asked, could the grievor have filed with'respect to the snow incident? Thegrievor gave \ then~mesof the people who were there, the aJproximate time~ of the incident, ,and an account of what was said. In cbunsel1s submission, the emplo~ef's failure. to investigate this incident 4as extremely suspect That conclusion, was confirmed when the disparate' treatment accorded. to Ms Grunwald's complaints was compared with that:"eceivedpy thegrievor Counsel concluded by urging the Board to find tt.at the termination of the grievance was without just cause And upon mJ.king that determination, It was incumbent upon. the B9ard to make the grie+r who/elf, for some reason, the Board determined that there was no just cause but that reinstatement was not appropriate in this case, Jounsel urged the Board to fashion a ~emedY that would compensate the gri~vOr for his past and future economic 'losses. Reinstatement was, however, ~he grievor'spreferred option. Counsel also asked that the grievor's Article A grievance be upheld. - - I - 90 '- r;: , Decision Having carefully considered the ~vidence and arguments of the parties iri these long and' drawn-out proceedings, we are of the view that the termination grievanc~ should be dismissed; but that the grievance alleging a violation of Article A should be upheld in part. I The Grievance with respect to Uniust Dismissal In oljr view, the 'employer acted witlil just cause Weare of the view that Ms. Grunwald's complaints allege harassment and sexual harassment. The employer, pursuant to its responsibilities generally as well as tho~e set out in the WDHP Policy, ordered an investigation. That investigation confirmed the allegations. We find that the' investigation was properly conducted in every respect, and in conformity with the employer's stated r r requirements as well as the principles of natural justice The grievor was advised ,in a timely' way of the complaints. He was given the opportunity to r avail himself of assistance in responding to them, and he,'was~ clearly told what case he had to meet. - There was a suggestion made that the grievor was never specifically advised that the investigation was to Include his activities with regard to <' toe pattipg of his chest aodhis references to red wax pencils. With respect, we cannot agree \ 1 Ms. Grunwald's letter of November 5, 1991 makes it perfectly clear, from the outset, that she is complaining about the harassment she began to experience in 1 986 "Since I was awarded the senior tech position Mr Koh has been verbally harassing me It seems as time goes' on the harassment is ! , ( ~'i,. ,""-; 91 ~. - getting worse His verbal' harassment is almost continuous at times when I'm in the ~icii1ity " In her November 6" "991 letter, she again makes it perfectly clear that she was, complaining, a'bo~t both the grievor's recent sexual harassment and hiS i past harassment. The 'letter notes that the grievor groped his genitals two , I or three t,imes while looking directly at her' I "At the same time he patted his chest pocket _in reference to a past incident to which he refers to on a -c continual basi~.n There can be no doubt that in bringing this concern to the attention of Dr Chagla, Ms. Grunwald was complaining about harassment as well as sexual harassment. And there can be no doubt that the grievor knew; or should have known, that the subject matter of the investigation was -both harassment and sexual harassment. The fact that Mr Lewis may have reached;- different conclusions in this respect is completely immaterial: What matters is what the grievor kneW, and 'he clearly knew that he was under in'v~stigation for both harassment and sexual harassment. I I I At the end of the day, the evidence establishes_ an on~going harassment campaign- direc~ed against Ms. Grunwald This campaign, we find, was initiated by the grievor in the aftermath of the 1 986 job competition, and It continued -virtually unabated to the time of thegrievor's discharge Even after the" formal complaints against thegrievor were 'filed,he perSisted In .J" ~ this misconduct. Indeed, in our view, by associating the patting of hiS chest with the groping of his genitals, the grievor elevated his reci wax pencil harassment into se'xual harassment. I We do not accept the union submission that management condoned the grievor's behaviour Clearly, management should have done mor~:, and It ( - ( .. ~ 92 .- should have done so earlier After all, the employer is responsible for ensuring a harassment-free workplace But there is no evidence of condonation. There is evidence that the employer attempted, albeit .rather ineffectually, to deal with the problems presented ,by the grievor - the \ referral .of the grievor. to counselling supports this submission. It does not support a finding of condonation ./ However, even in the absence of this evidence, we would stilt have found just cause for discipline given our finding that the grievor engaged in ) sexual harassment of Ms. Grunwald. Put another way, no -findings with respe,ct to wheth~r harassment occurred are necessary in this case as it can be decided solely on the basis of the proven -allegations of sexual harassment. Having heard in some considerable detail the evidence all of the witnesses, - we cannot accept the' grievor's version of events. We find, as a matter of fact, that the grievor called Ms. Grunwald a "cunt" and a "fuck,ing cunt~" These two incidents migh~not, considered alone, ,support termination of a long-service employee, although they would certainty support a most sf;!rious management response However, when these two incidents are considered alongside the grievor's lewd and, in our view" extremely threatening gestures, terminationcann6t be described as an inappropriate management response Thegrievor's long-after-the~factmedical evidence is simply incredible, while his explalilation that he would not have done these things because it was likely he would have been seen sLiggests, in fact, that he did do what was alleged. , \ - ~ . . '. -, ". 93 (', J Indeep, in his written statement provided' to Ms. Ferrari in. th"e presence ofa unjon, representative, the grievor stated that he did not "know whatkirid of ~ r ; , , masturbation you could', do at work and I wouldn't do that in a 'place where - people could see" The grievor went on, in this same statement, to allege that it Was Ms., GrUnwald who made lewd gestures at him; in particular, that she would give him the "finger" With respect to thesf;! activities, the grievor stated that there were no witnesses because "she is careful about it. She is as careful as I am. It We can only conclude in the face of all the evidence we heard, 'and the supporting documentary record, that the incidents of sexual harassment complained, about actually occurred Our >- ~ findings with respect to credibility are reinforced 'by the grievoris demeanouron the witness stand. His repeatedevCisions, and contradictions ,I I did not inspire 'any confidence in his credibility Even. if the. grievor had no I past record, we' would not have interfered with a management decision to. terminate him on this basis of the proven incidents of sexual: harassment.. It, should be noted that the Board heard considerable evidence' with respect to the grievor's behaviour generally. The grievor was not a model employee However, in reaching our result we have not given this evidence any particular weight. The grievor was disciplined for some misconduct and not discipiined for other misconduct. There is no reason to revisit that miscellaneous misconduct in this particular case given our finding that the grievor was terminated for just cause for his sexual harassment of Ms Grunwald. However, and for whatever this observation is worth, the grievor's record of employment is marked mostly for a series of demeaning comments, completely inappropriate behaviour, and entirely wild accusations directed at both management and staff This behaviour, over the course of a number of years, created a poisoned workplace. ~ 94 I I 'I: In reaching our decision on the termination' grievance, we were more than a little troubled by the evidence with respect to the snow incident. Mr Cole I did- not deny it occurred. He testified it was a joke In our view, it was not a joke. It was racial harassment, and no other explanation, for it occurs to \ us. Mr Cole was a witness to two incidents of sexual harassment. We .are \ troubled in this case because he was the grievor's slJpervisor, and his remark, in January or February 1992, was completely and totally unacceptable, and'it does, as the grievor has alleged, evidence- bad faith While we considered disregarding his evidence given. this snow incident, out of an abundance of caution and fear of a possible taint, we ultimately decided against doing so for a number of reasons~ First, the incident occurred after Mr Cole first gave mis account of what he had heard. Second, and more importantly, Mr Cole was not the only relevant witness. Mi" Aldom witnessed an encounter between the grievor and Ms. Grunwald; and she reported what had happened almost immediately thereafter Another ., encounter between thegrievorand Ms. Grunwald was witnessed by Mr ~ Giroux, a member of the bargaining unit. The evidence of all these witnesses is completely consistent with Ms. Grunwald's version of events Moreover, Ms. Grunwald's evidence was completely consistent at every stage, and her testimony was credible and supported by the voluminous documentary record, including statements provided to both inve~tigators. Simply put, all the evidence, both direct and indirect, supports the conclusion that the complained about incidents of sexual harassment 1- occurred as described, and we reach that conclusion without any reservation. Clearly, the charges against the grievor are ~erious, but the evidence, both in the investigation reports- and as presented to the Board, Iconfirms that they are true. And that being the case, we cannot find that ~-;- ---,- " -- . _I '. I I 95 I ?..;;.") the disciplipe imposed was without just cause 'In reaching this ultimate result,. thej grievor's, long seniority was carefully" considered Grievance ~ith Respect to Violation of Article A Having carefully considered the evidence with respect to' this grievance, we are of thf;! r vIew that it is meritorious in part; and we issue a declaration to that effect. i W,e cannot' and do not find, as employer counsel suggested, that the timing O'f the griever's allegations of the snow incident is suspect. The incident occurred after Ms. Ferrari had'completed her report. The grievor did have the opportunity to raise the'incident with Mr Lewis, and probably should ; have His failure to- dOiso does not, however, disentitle .him to be free from ! racial harassment. And on the evidence we heard, we find that the snow incident constitutes racial harassment. We note that the evidence we heard does'not support the allegation that Ms Grunwald participated in one of two such incidents. It is also important to I I note that 'she was -never questioned with respect to this matter The r evidence does support the conclusion that one incident occurred, present at which were the grievor, Mr Cole, and Mr McNamee. Although Mr Cole provided ~n explanation for his comments, it was far from satisfactory i Certainly it did not convince us tha,t the comments in question did not have a racial and discriminatory intent. In our view, no other conclusion can be reached with respect to these comments I ! We are of the view that the grievor provldeo the Ministry with su,fficlent particular$ of this incident; certain-'y enough details were provided to '. 96 (;, require it to conduct an investigation After all, Mr Cole was the' grievor's i i, superv1sor And in the same way that Ms. Grunwald's two letters of ! complaint indicated ~. prima facie violation of the WHOP Policy, so too did , , the grievor's April 24" 1992 letter with respect to the snow incident. While the grievor, by the nature of the presentation of his innumerable complaints, references to past events, and wild charges against management and other employees, made the singling out of his more meritorious concerns somewhat difficult, the Ministry, out of fairness and perhaps an abundance of caution, should have taken the grievor's' April 1991 complaint about the snow incident more seriously If proven, and there was 1 no way of knowiflgat the time wli1~ther it would be proven, this complaint presented sufficient 'particulars so as to indicate a violation of the WDHP Policy Moreover, as is often the case in situations of this -kind, the # investigation, of particular allegations of racial discrimination often r uncover related incidents and, in some cases, patterns of behaviour Per,haps some of the grievor's subsequent allegations, of racial harassment, such as the toilet incident, would, have been uncovered in an investigation. Perhaps not~ Very often,in cases of this kind, one allegation leads, to ) another and an entire pattern of conduct is exposed. Obviously, we are reaching no such conclusion in this case The point is that serious particularized allegations must be taken seriously The Ministry did not investigate the snow incident, and to- that 'limited extent a violation of Article A occurred, and we issue a declaration to that effect. -'"III The grievor,of course, made various other complaints, including further I i( J allegations of radat harassment against Mr Cole, allegations of racial harassment against Ms. Grunwald and Ms. Sakellaris, and allegations of sexual and racial harassment against Ms. Ho In our view, the allegatIons I, - T ~ .. - .. 97 ~; , against Ms. Grunwald, Ms. Sakellaris; and Ms. Hoare unsupported in the evidence, and -we can find no fault with the manner in. which these I complaints were addressed by the employer TheaUegatidns against Ms Ho I were particularly far-fetched .I Finally, for whatever this observation is worth, Ms. Bazzul testified that I one of the' factors she considered in deciding not to order an investigation '\ I into"' the snow incident was that Mr Cole supervised a number of employees of race and colour and that he did so without incident. In our view, this is a fact of absolutely no significance and is completely irrelevant to any determination of whether a 'particularized claim of discrimination should be investigated. It should have haQ no partin Ms. Bazzul's deliberations. '- Conclusion In our view, a declaratio.n of violation is the appropriate remedy for the grievor's, Article A complaint. As indicated above, we found: that the ,~now \. incident occurred, and we concluded that this incident can only be' "- characterized as facially discriminatory in intent. Ultimately, for the _I reasons given above, and because of the fact that Mr Cole was not the only wi~ness to the ,grievor'ssexual harassment of Ms. Grunwald, we Qecided to accept his evidence with respect to what he had ()verheard~ However, even if we had hot done so, tnere was more than sufficient evidence for the employer to conclude, as we have done, that the incidents of sexual harassment occurred, and these incidents constituted just cause for dismissal Accordingly, there is absolutely no basis to interfere with the termination of 'Mr Koh. Having heard all of the evidence, we cannot disagree with management's conclusion that the grievor harassed and sexually harassed Ms. Grunwald, that he created a poisoned work environment for Ms. ;/ . 98 "" '", Grunwald and virtually every other laboratory employee, and that the prospects ,of rehabilitation are virtually non-existent. Given this conclusion, and given the fact that no benefit would be sen(ed by requiring an investigation at this point, we are of the view that a declaration of violation of Article A is the appropriate remedy for the second grievance In reachrng this, conclusion we carefully considered whether it would be appropriate tOi accompany this declaration with any other form of relief, and decided that, in the circumstances of this , , particular case, it would be neither just nor eql,litable to do' so Accordingly, and for the foregoing reasons, we find that the grievor was dismissed with just cause We also find that there was a violation of Article A in that the Ministry should have investigated the grievor's I complaint of racial harassment by his ~upervisor, Mr Don Cole, and we issue a declaration to that effect. DATED at Toronto this 14th day of February, 1994 i1-L L . . -----~-- William Kaplan Vice-Chairperson 0 Partial dissent attached. I ------- ,I I Thomson I Member :}~L~L F Co' Member ,,} I ~". 889/92, 1903/92' I I OPSEU (KOH) vs. MJ;NISTRY OF HEALTH I I PARTIAL DISSENT I I To me this has been a very difficult case I agree that. i I the grievor is guilty of harassment against MS GRUNWALD However, I do not agree with the majority that he is guilty of sexual harassment. I I I The only testimony against the grievor to. support the charge of sexual harC[lssment was given by MS. GRUNWA~D and DON COLE. I This is a very, very, serious charge against a person and one that demands substantial proof. It is a charge that can destroy forever a person's career, if substantiated. I believe it takes mo~~ evidence than we heard. ( . The grievor may have made the remarklS; .attributed to him to KS. GRUNWALD. I find i~ difficult to accept thegrievor would J, make these remarks after working with her for 15 years. II Certainly things ~rew worse between them after the job ( competition ih 1986 and the grievor's conduct towards her worsened. That is why I concur in the finding of harassment .-. ~'r r - I y 'ie. ;,1 .,;: I , While DON COLE was the grievor's superv~sor, he appears to have had few 'problems with the grievor, until the job competition process began in 1986. DON COLE was a member of the interview ,panel and the grievor felt he was prejudiced against him -. From that point on DON COLE took a lead-in9' role in I I harassing the grievor He was the person responsible for initiating the petition against the grievor in 1988. If he was aware, of the grievor harassing MS. GRUNWALD or anyone else at any time he had a duty to try and correct it. It was not sufficient for him to merely write a report to DR MAHARAJAH: who strangely enough did little to correct the situation all the time he was there ./ I do not accept the testimony of DON COLE against the grievor in the finding of sexual harassment. MR. ALDOM testified he did not directly hear the remark made to MS. GRUNWALD. As stated earlier I concur in the finding of harassment and in the penalty imposed. 'I -~ ~-r C. ' ';Q ,;:: .0-;" 6 ~<--,' I.J. THOMSON - i .