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HomeMy WebLinkAbout1992-3155.Howe,Dalton.Loach.97-11-05 p?/ ~~ ~""~- ( ( ( - -~~ - '""' - I J~~a. jj. ONTARIO ~ EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO w ~ 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (41tJ) 32tJ-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG 1Z8 FACSIMILE/TELECOPIE (41tJ) 326-1396 GSB II 3155/92'~' ~6~-e OPSEU II 93A242, 9308 -9, ~5, ~ 38 -- - IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN 1. OPSEU (Howe/Oalton/Loach) Grievor - ~d- The Crown in 'i9ht of ontario (Ministry of the Solicitor General & Correctional services) -- Employer BEFORE: N. Oissanayake Vice-Chair T. Browes-Bugden Member M. Milich Member FOR THE B. Symes GRIEVOR Counsel Eberts, Symes, Street & Corbett Barristers & Solicitors FOR TBE L. Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat FOR THE M. O'Donnell -~, TBIRD PARTY HEARING October 14, 27, 1994 November 15, 1994 January 5, 6, 10, 11, 24, 25, 26, 1995 February 7, 8, 22, 23, 24, 1995 March 6, 7, 1995 April 19, 1995 May 2, 3, 23, 1995 June 8, 9, 16, 28, 29, 30, 1995 August 21, 23, 25, 28, 19, 30, 1995 - September 25, 26, 27, 1995 Novrneber 27, 29, 1995 .- ~ ( .- :;' di -- f <!: <$"l :0" ~~ - 2 DECISION This decision deals with a number of individual grievances filed by three female employees at the Haileybury Jail Haileybury Jail is one of Ontario's smaller jails and is part of the Northern Region of the Ministry As of early 1995, the jail had a Superintendent, and 5 Lieutenants, who were part of management As for employees on the correctional side, there were some 17 classified correctional officers and approximately 8 casuals (unclassified) correctional officers In addition, there were several administrative staffs including the office manager who was part of management There were one full-time cook, one regular part-time cook and two casual cooks Haileybury Jail accommodates 30-40 inmates Inmates are mostly male, although that female inmates in transit may be housed for short periods The Superintendent, all of the lieutenants and all 17 classified correctional officers were male Grievor Diane Howe was the only female classified correctional officer previously employed at the jail After she left on LTD, Ms Michelle Wadge became a classified correctional officer She left on a secondment to an office position, which left no female classified correctional officers Of the casual correctional officers, at any given time 2 or 3 were females, including grievor Nancy Dalton In the kitchen the only full-time cook was male, the rest of the cooks were female Ms Loach was one of the casual cooks ~. The grievances are as follows Grievances Filed by Cynthia Loach , (1 ) A grievance dated March 18, 1993 that "the employer is in violation of the collective agreement re sexual harassment " .- ;; ~ .iJ ( c- ~ ~ :1:.- ~ '" :'?' '" 3 (2) A grievance dated November 20, 1993 that "the employer is in violation of article 27 and any other related articles re Reprisals for making a sexual harassment complaint H Grievance Filed by Nancy Dalton (1 ) A grievance dated November 26, 1992 that "the employer is in violation of the collective agreement re sexual harassmentH Grievances Filed by Diane Howe (1 ) A grievance dated April 19, 1993 that "the employer is in violation of the collective agreement re sexual harassmentH (2) A grievance dated April 19, 1993 that "the employer 'is in violation of the collective agreement re Article A - no discrimination/employment equityH Mr Eric Ericksen and Mr Michael O'Donnell, both members of management at the Haileybury jail , were provided due notice of this proceeding They attended on the first day of hearing and were granted party status However, Mr Ericksen did not attend on any of the subsequent days of hearing -' Mr O'Donnell attended regularly and participated in the proceedings on his own behalf .......... On the agreement of the parties, all of the grievances were heard together This was an unusually protracted and complex proceeding Hearings were held in Toronto and in North Bay on a total of 38 days between October 14, 1994 and November 29, 1995 A total of 135 exhibits were filed and 20 witnesses testified The Board was called upon to make ~ ; .f' ( C' ~ ~ '1: ~ ~ .. '" 4 numerous evidentiary and procedural rulings as the hearing proceeded Substantive and complex legal submissions were made in conclusion The Board has carefully reviewed all of the evidence and submissions, even --. though for obvious reasons not all of the detail is reviewed in this ~- decision The allegations made by Ms Loach Ms Cynthia Loach is 32 years old She was married in 1980 and is the mother of 4 young children In 1989 she divorced and moved with the children to the New Liskard area, where she had lived prior to marriage She was raising her 4 children as a single parent and received little financial support from her ex-husband In October of 1989 Ms Loach applied for an advertised position of 32 hour regular part-time cook at the Haileybury Jail She was interviewed by a panel of 3 people, including the Superintendent of the Jail, Mr Ericksen, but was unsuccessful Subsequently, however, she was contacted ...~ at home by telephone and offered a 16 to 40 hour casual cook position She accepted it and was asked to come in for documentation and a medical examination Ms Loach testified that when she went in for this purpose, she was asked to see the Superintendent in his office When she went into the office, Mr Ericksen was there by himself According to Ms Loach, Mr Ericksen commented on how beautiful she was and warned her that specially ~ since she was single, the inmates would have a hard time controlling themselves Mr Ericksen told her that if she ran into any such problems -. ( c ~ .,,1 .:, <.. 'C ~ - '" ,q, " - 5 she should come and see him Ms Loach testified that she immediately felt uneasy and uncomfortable about Mr Ericksen's conversation, but felt that the job was very important for herself and her children --- Subsequent to this day and prior to her actually starting her job at the jail, Ms Loach had an unannounced visit at home from Mr John Rundle, who was employed in the Maintenance Dept She testified that Mr Rundle identified certain people at the jail as the ~bad guys" she should watch out for Ms Loach testified that this visit by Mr Rundel, who she had not known previously, made her further suspicious As she put' it, her ~internal radar system signalled danger" r.' Ms Loach testified that once she started in her position, she worked between 25 to 40 hours a week, and she was very pleased with the income She testified, however, that almost from the start, Mr Ericksen began visiting her in the kitchen at least twice a day, usually when she was alone In the initial period, he would tell her about himself and ask about herself and her children However, starting early in 1990, his conversations became increasingly personal Almost daily, he would address her as "my little girl" or "my favourite little girl" On one occasion he looked closely at her and said "your ass looks good" He frequently made comments about how good-looking and sexy she was, and asked whether she had -., a boyfriend When she said "no" he would make comments to the effect that he could not understand what was wrong with the guys in the area not to see how beautiful she was He asked Ms Loach which bars she went to and what kind of ~booze" she liked When she said that she did not like alcohol and did not frequent bars, he commented that he could not believe that - - - - c ( = jj ~ '" ~ ~ 6 On another occasion Mr Ericksen invited Ms Loach over to his house / He told her that his wife would not be home and that he would have a bottle of liquor ready Ms Loach declined the invitation The next day Mr Ericksen inquired from Ms Loach why she had not come and said that he was waiting for her According to Ms Loach, Mr Ericksen has invited her to his home at least 8 times She testified that Mr Ericksen has also invited her at different times to go fishing, swimming, and water skiing with him She declined all of the invitations stating that she was not interested in any of those activities Ms Loach further testified that if the Jail needed her to come in to fill in for a sick employee, Mr Ericksen personally called her at home She later found out that he did not personally call any other employee for call-ins, that it was the Duty Officer or the Shift Ie who called in employees Ms Loach testified that on one occasion she requested Mr Rundle that she be issued a winter coat Mr Rundle informed that the Superintendent's approval was required When they approached Mr Ericksen in his office, he told Mr Rundle "We don't want her freezing her buns off Of course, give my favourite little girl a coat " Then he asked Ms Loach if she would also like gloves and ear muffs When she said "no" , Mr Ericksen went on to describe a "stripper" he knew who wore a hat over her crotch and gloves on her breasts He said "you will really look good in gloves and ear muffs", then looked closely at Ms Loach and said "you better get out of here fast because I can barely control myself" , - c c ~--- - " ~il <- - '" " ~ 7 When Ms Loach started she and the other female cook, Ms Belanger were required to wear white clothing for work There was no uniform issued One day Mr Ericksen looked closely at Ms Loach and commented that he did not like what she was wearing--- He instructed Mr Rundle to issue uniforms to the female cooks When the uniforms were issued, they were made of a transparent fabric Ms Loach was shocked She spoke to Mr Ericksen about her concern His response was "If you don't like it, you can go naked" Ms Loach testified that after a few washes, the uniform became even more transparent and her bra and panties were visible through the material According to her, "the male population" at the jail made comments and appeared to enjoy it She felt embarrassed and self- conscious After some time, she started to wear a large sweatshirt over her uniform Ms Loach testified that she felt "belittled, worthless, vulnerable, and extremely threatened" as a result of Mr Ericksen's conduct She felt that if she did not please him she would not have a job As a result she felt a lot of stress and lost self-esteem It affected her relationship with her children Ms Loach testified about her attempts to cope with the situation She confided in correctional officer Mr Scott McPherson about Mr Ericksen's behaviour Mr McPherson promised to watch out and ensure that Ms Loach does not find herself alone with Mr Ericksen Subsequently, whenever Mr Ericksen went into the kitchen, Mr McPherson found some excuse to go into the kitchen also When Mr McPherson arrived, Mr , Ericksen would leave the kitchen Ms Loaeh testified that as a result of - ( ( (( ~ g' = ~ - 8 Mr McPherson's actions, Mr Ericksen's frequent visits to the kitchen decreased To deal with the stress, Ms Loach sought the assistance of her family physician, Dr connie Deline, who prescribed a sedative and also had regular counselling sessions with her The important strategy she learned from Dr Deline was that she should assert herself by stating directly to the perpetrator that his conduct was not appropriate She practised how to respond assertively by role-playing with the doctor Subsequently, whenever Mr Ericksen behaved inappropriately she began to put into practise what she learned According to her, as she began to assert herself in this manner, Mr Ericksen's interest in her quickly waned He no longer visited her in the kitchen and his personal and offensive conversations ceased However, Ms Loach asserted that while Mr Ericksen's offensive I behaviour stopped, she felt that she was penalized for rejecting his overtures At the time the cooking staff consisted of Mr Jim Hatton the full-time cook, Ms Colleen Belanger the 32 hours regular part-time cook and Ms Loach the casual cook In January of 1992 an additional casual cook position was advertised and Ms Beauchamp was hired Ms Loach testified that she could not see any need for a second casual cook since she would have been very happy to work more hours if additional work was available Ms Loach testified that after Ms Beauchamp was hired in January 1992, her own hours declined from 20 to 40-hours per week to 17 hours per week When she expressed her concern to Mr Ericksen that her hours had ~ ----- - ----- ------ ----- - -~ c ~ ( ( ~ ,:i' .' 9 declined while Ms Beauchamp was working more hours, his response was that she had her turn at 40 hours a week and that Ms Beauchamp needed 40 hours a week in order to be properly trained .--.- At some point, the Ministry's Workplace Discrimination and Harassment Prevention (WDHP) policy directive came to Ms Loach's attention Dr Deline discussed with her the possibility of filing a WDHP complaint She testified that Dr Deline convinced her that she should proceed to file a complaint without fear of losing her job A complaint dated October 8, 1992 was ultimately filed, citing Mr Ericksen as the respondent and alleging "1 feel that I have been harassed by invitations, sexual talk, insinuations, patronizing I believe this is based on the fact that I am female I feel I am suffering the reprisals due to saying no by loss of hours, loss of wages, inadequate supplies (uniforms) Ms Katherine McLean, a lawyer with the Toronto Catholic Children's Aid Society on secondment to the Independent Investigations unit (IIU) of MBS as an investigator, was appointed to investigate Ms Loach's complaint Ms McLean interviewed approximately 20 persons, including Ms Loach and Mr Ericksen Mr Ericksen was removed from the workplace while the investigation was under way Her report was issued on January 27, 1993 Her "conclusions and recommendations" in the Report were as follows ~~. The most alarming thing which emerged from this investigation is that the pattern of behaviour of Mr Ericksen seems to have been well established One of the witnesses interviewed highlighted best when she said "it appears to be a requirement to get hired around here you have to be a single mother and dependent on your job to support your family" ~.,--- - -I .. (:- 0 ( '-' .- ~ .' 10 The evidence would indicate we have three. single mothers who required their jobs who were subject to sexual harassment by Mr Ericksen The similarities of the evidence as detailed between the complainant in this matter and the complaint made to the Human Rights - Tribunal in 1986 are glaring The women were both single mothers with a number of children to support and in need of their jobs The respondent begins by being very friendly and making unwanted social invitations Upon his advances being rejected he then moves into a realm of criticizing and making inappropriate comments around the victims The final stage seems to have given them difficulty in the workplace During the Human Rights complaint the Ministry totally supported the respondent, and simply put his positions forward denying all allegations It is unfortunate that there appears to have been a victim at Elgin-Middlesex in 1986, (and possibly a second at that time) , and there are now two victims in Haileybury (1 ) one victim from 1990-1992 (2) a second victim in 1991 (if the allegations can be believed of a lesser degree but nevertheless sexual harassment) It would appear that there was no change in the pattern of behaviour after the allegations were made in 1986 and no recognition on the part of the respondent that some of his behaviour was inappropriate Rather it would appear that the respondent believed that because he had not been disciplined by the ministry and there was no discipline forthcoming on these or any further investigations by the superintendent that this kind of behaviour was condoned .....-.-JI. It is of concern that the respondent categorically denied the allegations of the initial complainant in 1986 and the 'formal complainant now, as well as the allegations put to him concerning the other staff member who raised concerns _._- ~ ~ ~ .. 11 Ms Loach testifiad that in addi~ion t~ having her hours reauoed, she e~erienced various other forms of reprisals once it bec~~e known that she nad filed a WDHP complaint Some of her colleagues stopped talking with nero Others no longer came into the kitchen to eat meals. When she walked into a rOom, all conver~ation would cease ana there would be silence She felt ostracized A pair of shoes belonging to another female employee was found filled with ketChUp She testified that the rumour was that it was meant for her. On a memorandum posted in the duty office, her name was altered from "Loach" to "Roach" A flip chart used at a management meeting was found in the kitchen stock room, with a caricature drawn depicting a female saying "1 have a complaint" and a man identified as Lieutenant Cote responding "Fuck off You are fired" Ms Loach related another incident where she had made a mistake in ordering food According to her, the Office Manager, Mr Kurt ArthlJr and shift I.C Lieutenant Cote, summoned her to a meeting and confronted her about the mistake in intimidating fashion She felt that this treatment was unusually harsh for a minor incident and sa~ it as a reprisal for having filed her WDHP complaint Ms. Loach test.ified that she applied for a casual ccrre!:tional officer position, because from about December 1993 her hOiJrS as casual cook -, had further declined Of approximately 35 applicants only 8 passed the FIT test. Of that 8, two were women including Ms Leach. She was subsequently interviewed but two male applicants were hired "off the street" to fill the vacancies She grieved the denial of the position and also filed a ; harassment complaint in relation to that At the time of the hearing the grievance was pending and the complaint was under investigation In 1995 1:0 d 96~t9G~9Iv000~8G 01 Cj'>feReuess ~ a () Pi?W ~ N WOCl:::l WdtG v0 ~66t-v0-n ~ , - c i' "' , 12 another vacancy for a casual correct~onal officer occurred and was filled. Ms Loach was not even informed of the vacancy She applied tor that position but did not even get a.n intarview, even though in the prior competition she had been judged to be qualified for the position -- Ms Loach testified that women faced belittling remarks and sexual comments and innuendo almost daily at the hands of males When asked to give specific examples, she related an occasion when she was in the kitchen an~ some males were watching TV in the corridor next to the duty office. Some of the officers ealled her over to see what was on TV When she did, she observed on screen a graphic qynaecolog1cal examination being conducted on a woman The males laughed when she reacted to what :she saw On another occasion, while she was between two sets of controlled doors a male asked if she owned a vibrator and how often she used it She was asked if she had heard of "the little man in the boat" Another time a male described how his sex drive had increased after getting a vasectomy and asked if Ms Leach knew how to perform oral sex Others commented on how ugl y Ms Loach was It was very common to see males looking at the Playboy magazine and inakirlg COI!Ul'lents like "we are lookinq fer contraband" Ms Loach testified that this type of conduct was commonplace and would take. place in different parts of the jail When asked who the males were, she testified that it included bargaining unit employees as well as management -~. Ms Loach testified that the se~ual harassment she faced was not limited to verbal actions Mr Rundle one day came into the kitchen and asked if he could have a cookie Ms Loach said of course" and as she , turned away, Mr Rundle grabbed her br~asts On another occasion Mr -..-- Rundle grabbed her in the stoek roorr., put her against the wall and c0 d 96~19c~9Iv000~8c 01 d 'feA-eu'ess ~ a () l-elU~N WOCl.::l Wdlc v0 L651-v0-11 . .' ~ . 13 forcefully kissed her in the mouth. Ms Loach testified that she ctid not make any formal compla~nts against Mr Rundle because to do so she would have had to go to Mr Ericksen and she did not wish to do that. Ms. Loach also testified about the two-week training session arranged by the Ministry for staff at the Haileybury Jail following her complaint The jail was shut down for the duration. Ms Loach testified that while at the start the~e appeared to be goodwill and a desire to air aifferences, soon the males took over the session, and the focus turned towards how to protect males against malicious accusations by female employees. She particularly referred to a comment by correctional Officer Don Willet to the effect that "all a female on the night shift had to do is to rip off her blouse and dry rape against a male and the male's family lite and - .- career is ruined II She testified that Ms Monika. Campbell I who was conducting the training was frustrated and shook her head in disbelief. Ms Loach spoke to the new Superintendent Mr. David Hamel, who had replaced Mr. Ericksen, in october 1992 , about the reprisals she was experiencin9 as a result of her WDHP complaint. According to her he was sympathetic but said that he did not Know what to do. When she asked him it he would testify on her behalf he merely shrugged. According to M$ Loach as a result of this stress at work she was hospitalized from February 16 to 22, 1995 She estimated that due to the stress she missed at least 2 mon ths of work time. She was under her doctor's care at the time of testifying and had counselling once or twice , a week Although she continued to be emp~oyed, she had some ~bad ctaysH md 96[!9c[91P000L8c O~ a>fe?A'E'u'E'ss 1 a n I'E'loUJN WOd~ WdcG v0 L661-P0-n ( ( - -_... = = -- ~ = 14 Allegations made by Nancy Dalton Ms Dalton started employment at the Haileybury Jail in September 1988 as a casual Correctional Officer As a casual employee, she had no guaranteed hours, but was on call 24 hours a day, 7 days a week Her hours .- came from call-ins to replace regular officers who were absent and for special assignments Thus her hours fluctuated from week to week Ms Dalton testified that when she started there were no female classified officers because Diane Howe was away ill out of 5 casual Correctional Officers 2 were women Once she asked Lieutenant Bellaire why she had not received a particular shift, his explanation was that it was no~possible to staff a shift with two women When she raised distribution of hours with Lieutenant Olsen, he told her that Lieutenant O'Donnell had chastised him for calling in females and told him not to schedule women on his shift because that made it a "weak shift" Ms Dalton stated that there were many comments made by males indicating prejudice against women Correctional Officer Charles Mawhiney once told her "there is a place for women in corrections" and pointed to the office He went on for 20-25 minutes expressing his view that women in corrections should be confined to office jobs Officer Lee Regan once gave his opinion that women were not as strong as they think and told her _. that if she ever "hit the emergency button", he wouid not rush to rescue her Ms Dalton testified that both inmates and staff constantly used foul language The "F" word was used all the time swearing was part of the , everyday language According to her on several occasions, vulgar comments were~ directed at her She has been called "a fucking old bag" , and -- ---~--- ~ - - - ~ lS comments like "You are so fucking ugly" have been direc:ted at her Lieutenant Olsen was standing right the~e when she was called a "fucking old bag". On another occasion Mr Regan put Ms Dalton in a headlock ~ight in f~ont of Lieutenant Olsen Olsen said notninq about it It was common practice for males to confine Ms nalton in the sally port area between the two sets of controlled doors and physic:ally rough house. On one occa::sion Mr. Regan came from behind, put his arms around Ms Dalton's waist and physically lifted her off the floor. On another occasion, Ms Dalton was standing near a door when Mr Regan was coming in. He pushed her behind the door and pinned her against the wall with the door and commented it your fucking ass wasn't so big there will be enough room for me to get byn. Once Ks Dalton observed a group of male of!icers huddled around a d~sk looking at a magazine and giggling and chuckling. Mr. Ed Bridge held up the magazine containing pictures of ~ heavily built woman and said "Nancy, come and see this" She said she did not want to Then Mr. Bridge said \ "I will have to strap myself with a two-by-four if I am ever going to get on this one" Mr. Dalton testified that Lieutenant Cote was in the habit of walking up close to people and "farting" Once, when he was shift Ie he did this to Ms Dalton, Ms Dalton said "why don't you get a lifeu and Cote retorted "l've been SO con5~ipated I've had to stick my finger in and piCK out my -, Dalton wi tnessed Mr shit" On another occasion Ms cote pull out a lighter and pretend to set fire to the crotch area of temale officer Janice Purkhart ana remark "I am trying to ~tart a bush fire" During another period, (Ms. Dalton could net recall the year) female employees were getting calls at the workplace According to her, someone .- - pel d 96~~gc~9~p000~8c 01 OJ >feA\?u\?s:n a (1 l\?lU1N WOCl:l Wdcc pel ~66 "t-p0- n -=-=-=-=~ -~-- -- - -- -- - - ~ z z 16 knowing the daily schedule could reasonably predict who would answer the phone at the jail at any given time. On many occasions, when Ms Dalton answered ~he phone, a man at t.he ot.her end waa "breathing heavily and groaning and moaning as if having sexN When the Police was not.ified and ---. - detection traps put on, the calls stopped. Fro~ this Ms. Dalton concluded that persons employed at the jail were making these calls. Ms Dalton described Lieutenant Cote's language, with inmates as well a~ with staff, as abusi~e and vulgar. He would use the "FN word 2 or 3 times in the same sentence. Once she was present when he fini5hed a telephone conversation with his wife, then grabbed and rubbed his crotch and said "I wish she wouldn't talk like that. Now ! feel so horny and I have to stay here all niqhtN. on ano~~er occasion Ms. Dalton was leaving at the end of a shift when Mr Cote shouted from the duty office "Goon Go on home and fuck your husband" Hr Dalton testified about a going away party for a retiring employee Mr. David Wert in November 1989 AS per usual practice the staff had collected funds and bought him a gift and arranged a party. Ms. Dalton was informed that the party wall t.o be at the Lakeshore Hotel Since she did not frequent local drinking establishments, she did not know what kind of place take shore Hotel was She arrived at the party with her husband After a while she was shOCked when a "Stripper" came on stage and started to dance anct strip Ms Dalton moved to a location where she could not see the stripper Others present commented tnat the stripper was the girl- friend of an inmate at the Haileybury Jail. She was informed that Superintendent Ericksen had requested tnat the party be held at thi:s particular hotel After about one hour Mr Ericksen arrived and joined the :;0 d 96~19~~91P000~8~ 01 Cl)feFreu'G'ss JQ (I I'E?wJN WOCi.:l Wd~c t70 L66t-p0-tt ( l '" , 'I" = = 17 group The stripper immediately acknowledged him, walked over and sat on Mr Ericksen's knee and had a conversation Although Ms Dalton could not - hear what was said, it was obvious to her that the two knew each other --- Ms Dalton testified that she felt uncomfortable and humiliated by the experience Ms Dalton testified about what was referred to as the "Sudbury Transfer Incident" On August 30, 1989 she was called in for an escort of a female inmate to Sudbury That day Mr Cote was the Shift IC and Lieutenant O'Donnell was acting Superintendent The vehicle in which the inmate transfer was to be done had a bench seat in front That section was completely separated from the rear section of the vehicle by a wire mesh The rear section had 2 bench seats The way the dQors operated -no one in the rear section could exit until someone opened the door from the outside The staff assigned to the escort consisted of Ms Dalton, Lieutenant Cote and officer Ron Lefevre Mr Cote informed Ms Dalton that three male inmates and a female inmate were to be transferred The female was in custody charged with conspiracy to murder her husband The 3 males had been sentenced, two for sexual assault The third male had been recently - removed from segregation after an episode of violent behaviour Cote, who was to drive, advised Ms Dalton that acting Superintendent O'Donnell had specifically directed that Ms Dalton should travel in the back with the ~~. four inmates, while the two male officers were to travel in the front Ms Dalton then remembered a previous occasion where she had been in a similar dangerous situation during an escort and decided to complain Along with a union official she approached Mr O'Donnell When Ms Dalton expressed , her concerns about safety, Mr O'Donnell responded that she was refusing to do the assigned escort She expressed that her concern was about her ._, ! C C -.- .. ~ ~ = . 18 safety, and wished to have the assistance of a health and safety representative Ms Dalton and health and safety representative Brian Little again approached Mr O'Donnell Once again, Mr O'Donnell accused Ms Dalton of refusing to work His position was that he was the "boss" and that Ms Dalton must do what she was told to do without refusing When Ms Dalton tried to reason he commented, "you females are always crying for hours and this is the thanks I get " Finally, Mr O'Donnell said that he was calling off the planned escort and Ms Dalton went home But evidence indicates that later that day the four inmates were in fact transferred to Sudbury, but under a different arrangement The male ---- - --'.-... inmates and the female were transported in separate vehicles Mr Cote and Mr Lefevre escorted the males in one vehicle and the female was escorted in a separate vehicle by a male officer and a female officer The next day Ms Dalton asked Mr O'Donnell for a copy of the occurrence report he had written with regard to the alleged refusal to work by Ms Dalton Mr O'Donnell said that it was none of her business When Ms Dalton inquired why she had not been offered the escort after it was revised, Mr O'Donnell got upset He pulled out Ms Dalton's employment contract, held it up and said "Do you realize that this can be cancelled with one week's notice " Ms Dalton took it as a threat for having questioned the appropriateness of Mr O'Donnell's decision as to how the escort should be _. done Ms Dalton grieved that she had been disciplined without cause when sent home that day The grievance was resolved through minutes signed on March 15, 1990 The employer accepted Ms Dalton's health and safety explanation and that there was nothing wrong with raising a health and safety concern with a supervisor The employer also accepted that the - - -- -- ! ~ , ( ( ---- . -- ~ 19 comments by Mr O'Donnell, if made, were "definitely inappropriate and are not condoned by the institution senior management " 'Ms Dalton in return, agreed "to withdraw this grievance and the human rights complaint and consider these matters dropped and withdrawn" Ms Dalton testified that sub~equently, while she was on an escort .- with Mr O'Donnell, the latter brought up the subject again and said to the effect "If it is any consolation to you, I agree you were right and I was wrong There is no sense in pursuing it anymore " Mr O'Donnell explained to her that he did not know at the time that the male inmates had sexual assault charges ~ __...u_.. __. .__ -- -- -- ,- Ms Dalton test~fied that after the Sudbury transfer incident her relationship with Mr O'Donnell rapidly deteriorated She felt that he was "persistently dogging" her She was repeatedly "counselled" by him an~ she was subject to "nit-picking" She gave the following situations where she was counselled by Mr O'Donnell for not carrying the right key on night patrol, for using the kitchen oven to keep warm, for punching the clock too :.:: hard or not hard enough, for making popcorn in the microwave oven, for making ambiguous entries in the log, for wearing the detex clock in the corridor when changing the TV channel for inmates, and for allowing an inmate to pe on the phone in excess of five minutes Ms Dalton saw these -~, as retaliation for the Sudbury transfer incident, because she had done the same things prior to the Sudbury incident and Mr O'Donnell had never counselled her Ms Dalton testified that Mr O'Donn~ll's constant criticisms made her not want to corne to work Her stomach was "tied up in knots" She was --- ! , ( ( ;; ~ ~ - ~ - 20 vomiting and had headaches She developed an ulcer She felt that he was undermining her ability to perform as a correctional officer Ms Dalton testified that she always felt that she did not get her fair share of the casual hours Lieutenant Oslund once confided in her that Mr O'Donnell had chastised him for scheduling women to work on his shift, because he felt that it resulted in a weak shift Once a female casual correctional officer told her that she had observed Mr O'Donnell at 3 00 a m whiting out Ms Dalton's hours posted on the schedule and giving it to someone else Ms Dalton brought this information to the attention of Superintendent Ericksen and pointed out that there was a difference of $10,000 between the top earning casual correctional officer and the lowest earning officer The next day Mr Ericksen told Ms Dalton that her sources of information are "full of shit" She understood it to mean that he felt her complaints were unfounded After Mr Ericksen was replaced and Mr Hamel became acting superintendent, the latter summoned Ms Dalton to his office He said "you had asked about unfair casual hours" and handed him a letter in which it was concluded that a review of unclassified staff usage had indicated that Ms Dalton had a "disproportionately high level of unavailability" dating back to 1989 Mr Hamel stated in the letter that the review supported his conclusion that "reasonable~fforts are being made to ensure that available hours are being equitably distributed among available unclassified correctional staff " Ms Dalton testified that as she understood from having observed how call-ins were made, where a need for casual staff arose, the first-to be --.< -- ( ( ~ g ~ 21 called was the casual with the least hours to date She said that most officers followed that practice but others favoured friends Ms Dalton testified that shortly after the Sudbury incident, she found the number plates of her car smeared with ketchup About 2 weeks later she found the side mirrors of her car turned backwards On another occasion, she and correctional officer Janice Purkhart observed from inside the building something stuck on a windshield wiper of the car belonging to Ms Purkhart It turned out that someone had stuck \ the wiper through the neck of a dead partridge and left it there The police were notified and later two male correctional officers Lee Regan and '.~-! Brian Little who had been hunting admitted that they did it as a joke Ms Dalton testified that soon after she started in 1988, she - realized that she needed French Language training, if she were to compete for the full-time correctional officer positions designated as bilingual r\ She expressed to Mr Ericksen, her desire to receive that training and was told that she was put on a waiting list She was tested by the French Language Training Centre over the telephone and was classified as in the high intermediate category Ms Dalton continued to seek the French Language training and raised it at the time of the annual performance evaluation also The Centre advised her that it was up to the _. superintendent to decide who receives the training, but Mr Ericksen told her that it was not his decision Whil e she exceeded the level of competence required for the training she never received it Ms Dalton further testified about a situation when she attended th~ Bell Cairn Centre in Hamilton-for her phase 2 training in the Spring of -- - - - ~-- - > ~ -- -- -- - ..- ___ -~-- --::c.-- - _ _ _ __ " i' - ~ ~ :i ~ 22 1991. A male officer from. Hai1eybury Jail r Mr. Don Martin, was also attending the 2-week training course He was driving to Hamilton in hi~ car and MS. Dalton rode wi th him Ms. Dalton testified that she was --- responsible for buying her own meals while travel1inq and also for breakfast and dinner during the 3 weeks in Hamilton She had received only an advance of $35 from the employer However, she noticed that Mr. Mar~in had lots of money to spend He talked of "blow,ing the $500 advance. # She inquired and fOQnd that attendees from other institutions had received hundreds of dollars from the Ministry as advance money She on t~e other hand had withdrawn $500 from her personal account She called the Office Manager, Mr. Kurt Arthur and complained, and said that her husband would drop by to pick up a cheque. A cheque was issued for $400 or $500 dollars but she was upset that she had to call before it was issued. -- Ms Dalton was interviewed as part of Ms McLean's investigation into Ms Loach's WDHP complaint After the interview, Ms. McLean suggested that 1043 Dalton should consider filing her own complaint. After discussions wi~h the union, on Novem.ber 20, 1992 Ms Dalton filed 2 WDHP complaints, one naming Mr ertcksen as respondent and the other Mr O'Donnell Ms Rita Koehl was appointed as investigator with regard to the$e compla~nts Ms. Dalton testi:ied that following her WDHP complaints, there was _. a "freeze out atm~sphere " When she entered a room all conversation stopped Male officers were not talking to her as freely as before She singled out Mr Bridge in this regard She found a comic strip called ~on the Fast Track" cut out from the newspapers at her work station She , interpreted it as a message that her complaints would not be dealt with. 90 d 96~T9c~9~v000~8c O~ a)jeAeu..ss~i] rl p~w ~ N WO~.::l W&c via ~66T-t"0-H ~ ~ 'i' . 2.3 Ms. Pauline Radley, the Regional Manager, assured Ms. Dalton tha~ she would not be required to work with Mr. O'Donnell until the investigation was completed This pleased Ms Dalton However, she waaa upset when she found out that the arranqement was for her to be off work and be paid at 16 hours a week, while Mr o'Donnell was to continue working She protested that she would be penalized by restricting her income to 16 hours a week Ms Radley then agreed to ma~e arranqements so she can come to work and assured her that steps would be taken so she would not be wor~ing on the same shift as Mr 0' Donnell Mr. O'Donnell was not removed from the workplace for the duration of the investigation. Ms. Dalton testified that while the investigation interviews were underway, one day Lieutenant Cote remarked to a group in Ms. Dalton's presence to the effect. that he was "upset about all these interviews" and went on "anyone who fucks '",ith me is goinq to get. fucked and I don't mean sexually ~, M$ Dalton felt that Mr Cote was threatening that her hours a~d job opportunities will be denied. According to Ms. Dal ton, while t.he WDHP complaints were under investigation there was a high level of stress and tension at work She was vomiting blood Althou9h her doctor advised her to take 6 weeks off, she continued to work because as a casual employee she had no paid sick -, time. She was prescribed drugs to cope with the stress She lost about 25 pounds in this period Ms Dalton testified that she wrote a letter to Ms Mcn1ka Campbell, ~~ployment E~ity Coordinator working at SUdbury, explaining many of her concerns and followed it up with a telephone call Subse~~ently, in the presence of other staff, Mr O'Donnell counselled her to the effect that he knew Ms Campbell well and that if anyone contacts ':'0 d 96(!9cE9!v000.:.Sc 01 a'>f'G'A'euO?~s~a () yew ~ N WOd=, ~~d[c 170 ':'661-170-1:1: -- ".- ( ( -.~- - .. , ~ 24 her, it would come to his attention The message Ms Dalton got was that Mr O'Donnell, as a former Local union President and present member of Management had clout and could not be touched -- On May 21, 1993 Ms Dalton wrote to Superintendent Hamel, advisinS] that she would not be available to work from August 27 to September 6 She received a memorandum from Mr Hamel advising that the period Ms Dalton had indicated was not acceptable because in that period casuals would be required to relieve classified officers on holidays and sickness He stated that when casual employees are not available ~undue stress is placed on the efficient operation of the institution" Ms Dalton was asked to "Please reconsider this period and attempt to find one that falls later in the season " Ms Dalton spoke to Mr Arthur, who had signed the memo on behalf of Mr Hamel, and explained- that she had chosen the particular period because she had to take her son to a hockey camp for which she had already paid up Mr Arthur undertook to speak to Mr Hamel A few days later Mt Hamel approached Ms Dalton and indicated that her requested holiday period was approved and wished that her son would have fun at the camp However, he also added that in future when Ms Dalton requests time off, he wanted to know the purpose She was offended by that since she was not aware of any other officer who had been asked why he or she did not want to be scheduled for work on particular days ~~, Ms Dalton testified that when it was announced that the jail would be closed down for two weeks for staff WDHP training, there was speculation that the Ministry was sending a message that it could do without the Haileybury Jail Rurnours spread that the-jail may be closed down Since - . ( ( ~ . ~ 25 she had filed WDHP complaints, Ms Dalton felt a lot of pressure fearing that if the jail closed down she would be blamed for it by the other staff .- training incident Ms Dalton's testimony about the WDHP was not dissimilar to that of Ms Loach She said that Ms Campbell lost control of the meeting and that the male officers took over She said that she was shocked by Mr willett's statement because she saw Mr willett as a very good officer and she had worked well with him According to Ms Dalton, a few days after the two weeks training period, Mr Hamel called her at home and said that he wished to apologize to her When she asked for what, he said "for the conduct of the male officers at the training " He said that in his view, Mr Willett had not acted alone, that the group had put Mr willett up to do it Ms Dalton agreed and commented that "Mr Willett - is one of the best officers " Mr Hamel told Ms Dalton that he would be speaking XO the male officers about the incident Ms Dalton testified about an incident that occurred on January 13, 1994 According to her, for the prior two months or so, Lieutenant O'Donnell had been using the jail's TV and VCR to watch TV or videos while on the night shift On January 13, at approximately 2 00 a m she went into the control room to get an envelope She saw Mr O'Donnell watching TV She was sure he was watching a video because she could see the VCR -~, counter running As she went in, she observed on the screen e scene where "a man was sucking a woman's breast while making love to her" She was shocked She slammed the drawer and exited immediately A couple of days later, Officer Melinda Paoletti told her that Mr O'Donnell had said that , he had taped that movie, that he had not realized it was pornographic and that he was also surprised ~._." ---~,- --- -- _. - . . ...+ > - ( c ~ " ., : 26 Ms Dalton testified that she did not make an immediate complaint because she had heard that Mr O'Donnell claimed to have the superintendent's permission to watch TV after lock up on the night shift However on February 2, 1994 she asked Lieutenant Cote whether the policy allowed watching TV on night shift Ms Dalton and Mr Cote met with Mr Hamel and complained about Mr O'Donnell's regular practice of watching TV while on duty on the night shift and also brought to his attention the "pornographic" scene she had observed Mr O'Donnell watching on January 13, 1994 Mr Hamel listened and asked Ms Dalton to put her concerns into writing On February 7, 1994 Ms Dalton wrote the following letter to Mr Hamel This letter will confirm my conversation with Lt R Cote and the meeting of February 2 nd, 1994 which took place at your request in the presence of Lt R Cote, myself and you in your office I approached Lt Cote asking for clarification regarding the institution's policy of staff watching television or bringing in their own television during night shift Lt Cote advised me that "no individual" was authorized to do same while on duty I informed Lt Cote that the MCS owned colour TV/VCR as well as personally owned black/white model was b~ing used on a regular basis by Lt O'Donnell At this same time I informed both It Cote and yourself that on one particular occasion (Jan 13th/94) I entered the duty office area at approximately 02 40 to obtain an envelope and glanced up at the MCS colour TV which Lt O'Donnell was watching with great interest I was extremely shocked to see explicit sex scenes, i e a man making love to a woman - sucking on her breast etc In disgust/anger I slammed the envelope drawer and returned ~. to the bottom floor desk area where I stated to another co-worker "It's a shame that MCS has wasted so much money/time/energy to educate people in WDHP etc and told him what I had just seen Lt O'Donnell watching on TV and that it has been a totally ineffective method of dealing with the problem" Lt O'Donnell has allegedly stated to numerous other COs that he had the superintendent's permission to view TV after lock-up so for this reason I did not immediately come forward because I assumed that he had the superintendent's blessing Every night shift that I have worked with Lt O'Donnell for the last 3 -- - - .-- " . ~ ---- ~ \. (. -;: ~i' .. - 27 months he has taken out the MCS TV or ran out to his truck and brought in his own black and white TV On other occasions LT O'Donnell went to set up the TV prior to me leaving at 22 40 (Some random dates are Dec 22, 23 and 31st, 1993 and also January 13th, 1994 Not discussed at the meeting but also a security concern for me was that on December 31st, 1993 (actu~lly January 1st, 1994 at 02 25) two visitors entered the institution and they were given access to the main body of the institution and joined Lt O'Donnell in the duty office (where he was watching TV) and visited with him until 02 55 Lt O'Donnell has also entered the insti tution with his youngest daughter at which time there was still inmate movement in progress It is my understanding that all visitors must have security clearance and the superintendent's authorization Also not discussed at the meeting is the fact that Lt O'Donnell has spoken to various individuals including me regarding returning to my assigned post while he has been observed out of the institution at Buster's Variety Store and over at the Haileybury Fire Hall visiting during his tour of duty Numerous other "double standard" incidents have occurred and continue to occur with Lt O'Donnell I I have made every effort throughout my employment and especially during a most difficult WDHP investigation and union grievance to act professionally and responsibly wi th the hope that the deliberate harassment by Lt O'Donnell would cease and desist This has not occurred ~ This behaviour of Lt O'Donnell's is so painfully obvious that a fellow staff member said that he was going to speak to you about not being scheduled on the same shifts and Lt O'Donnell and myself because "I was a fucking heat score" I did not find this comment amusing It is my understanding that as a result of our conversation that you intend to investigate these incidents and take appropriate action as is deemed necessary for this behaviour to cease and desist Should you have any further questions please feel free to contact me at your convenience When Ms Dalton heard nothing from Mr Hamel, on March 3D, 1994 she wrote again to him -~ -- ---.,. ~ --- -~.-.- -==--=--=--~-- ==-~_ -- --.:.-.__!.. _ .L --=- " \, \ 0- - .- 28 Further to my letter of February 7 th, 1994 which expressed concerns regarding Lt O'Donnell's behaviour in the workplace, it was my understanding that you intended to investigate/take appropriate action and take the necessary steps so that this behaviour will cease and desist I have been approached by a male officer who has also been harassed by Lt O'Donnell on a regular basis This harassment has caused him to refuse any possible overtime shifts of which Lt O'Donnell is in charge I suggested to this individual that he should go and see you about the existing and on-going harassment that is blatantly obvious to all staff During a proposed settlement meeting in Toronto Mr J Palmer indicated to me that he was aware of the problem (as per my letter) and that he intended to deal with it Apparently Lt O'Donnell has admitted to a staff member that he was in fact watching a tape that he had brought from home He deliberately brought this material into the institution for his entertainment '- Please advise me at your earliest convenience - in wri ting of the investigating/penalty How many more warnings? How much more training? How many more individuals must experience this archaic behaviour? This I., is affecting your sick time / scheduling / availability /morale and contributing to the poisoned work environment It is to be noted that in this correspondence Ms Dalton raised concerns about Mr O'Donnell's practice of watching TV while on duty, about the particular incident on January 13, 1994 and also about several other ~.... allegations of inappropriate behaviour on the part of Mr O'Donnell, including alleged harassment of a male officer However, in testimony Ms Dalton stressed that she did not care if Mr O'Donnell watched TV while on duty, because it was common for officers --- ( G,..u' ,_.- ~ -- - ".~~ .i 29 to watch ball games at night Her real concern was the viewing of pornographic material Finally, Ms Dalton testified that the two week WDHP training, rather than make things better, made it worse in her view She said that it drew everyone's attention to the fact that WDHP complaints had been filed and created a wall between the males and the complainants Rumours persisted that the jail may be closed down Allegations made by Diane Howe Ms Howe moved to the New Liskard area from Southern ontario in 1972 ~~ with her husband and family when her husband got a job there in a dairy farm Subsequently the Howes purchased the farm but lost it after the business got into financial '~ifficulties Out of necessity, Ms Howe applied for and obtained a position as casual correctional officer at Haileybury Jail in August 1984 In February 1986, Ms Howe obtained a position as a Full-time classified correctional officer She was the first ,?~ female to attain such a position at the Haileybury jail She last worked " on November 11, 1992 when she went on Short-Term Disability Since May 12, 1993 Ms Howe has been on Long-Term Disability Ms Howe testified that when she started at the jail, she got the impression that she was not welcome The male officer; did not introduce themselves and she felt ignored and intimidated There were "colourful jokes" and rude vulgar comments She heard Mr Mawhiney express his view that women working in corrections posed a security risk About 5 months after Ms Howe started, Mr Brian Hurteau, correctional officer, told her J in the presence of 3 other officers "It makes me sick to have to look at - .- ( t .'0 . ,~. - 30 you first thing in the morning" Ms Howe responded, "You better get used to it because I am applying for a full-time position" Mr Hurteau replied, "If you get a full-time job, they better send you to penetang where you belong" Ms Howe felt hurt, and wondered why Mr Hurteau would say those things without any provocation Ms Howe testified that she was assigned to duties which she felt were inappropriate She was assigned to laundry duty She was aware that officers supervised inmates doing ~aundry, but she was required to actually do the laundry She could not recall who the supervisor was at the time On another occasion a cell which has been occupied by an inmate infected with "crabs" had to be cleaned and washed with a special disinfectant Ms Howe testified "The guys gave me all the supplies to do the work and walked away They said its women's work" She could not recall who the supervisor was at the time Ms Howe testified that once when she was the spare officer Mr O'Donnell ordered her to go into the men's washroom and clean it While she was doing the cleaning, a man walked in and complained Ms Howe testified that after her husband lost the farm, she cleaned houses in order to augment her income from MCS She was under great -, stress A correctional officer Mr Arnold Olsen became a source of comfort to her and they became good friends However, soon the relationship became more than a mere friendship Ms Howe testified that one night she and Mr , Olsen drove out after shift end at 10 30 P m to the Marina parking lot She noticed another car arrive and park close by They spent a few minutes together in Ms Howe's car during wh~ch Mr Olsen leaned over and kissed -.- ( ( 31 her The next day an officer told her that the Superintendent of the Haileybury Jail at the time, Mr Rhiness and the acting shift I C Hughes had followed Ms Howe and Mr Olsen to the Marina in a car the previous night The officer advised her that she should cool her relationship with- Mr Olsen Shortly after, Mr Rhiness called Ms Howe into his office He told Ms Howe that he did not appreciate her behaviour He said that once there had been a female employee in the jail, who started to call him at home and that he did not want a recurrence of that Ms Howe understood Mr Rhiness to be suggesting that he did not want Ms Howe to make advances to him and that he did not approve Ms Howe's relationship withMr Olsen Ms Howe was upset because she felt Mr Rhiness was intruding into her personal affairs Ms Howe testified that she felt guilty about the relationship anyway However, after this incident she panicked fearing that everyone would know about her affair with Mr Olsen and wondered what effect it would have on her husband and children She was in distress for several days Her husband realized something was wrong and questioned her She t told him about her affair with Mr Olsen She subsequently met with Mr Olsen and told him that their relationship should end Ms Howe testified that her co-workers subsequently ridiculed her Mr Hurteau once whispered in her ear "If you wanted a good time I could have shown you betterH Her affair with Mr Olsen appeared to be common knowledge within the workplace Even some inmates asked her about it To her it was obvious that officers had been talking to the inmates about her affair ( ( ;:it" ...... ,.N '> -; - 32 Ms Howe testified at length about problems she had with inmates, after she ended her relationship with Mr Olsen She had first met inmate Wesley in 1986 He was in and out of Haileybury Jail, usually for convictions for assault on women He was an unpredictable man, prone to violent outbursts during which he abused himself, sometimes hitting walls until his knuckles bled Ms Howe testified that she had an ability to calm Wesley down when this happened Gradually, Wesley began to trust Ms Howe and she frequently talked to Wesley and counselled him When upset, Wesley would ask to speak to Ms Howe He was in the habit of writing poems on pieces of paper and giving them to her He showed her card tricks On September 4, 1986 when Ms Howe was doing a round at night Wesley handed Ms Howe a piece of paper She put it in her pocket thinking it was a poem Later that night Wesley asked Ms Howe if she had read the note he gave She said she had not, took it out and read it She was enraged when she found that in the note Wesley had made sexually suggestive comments and requested sexual favours from Ms Howe She left Wesley was enraged and banged his bed on the wall and made a big disturbance Fearing that he might wake up the whole institution, Ms Howe went back and spoke to Wesley During that conversation Wesley told her that Mr Olsen had told him that she was an "easy score" She took the note home that night and destroyed it When asked by union counsel why she had not reported this comment attributed to Mr Olsen to Superintendent Rhiness, she -, replied, "I felt Mr Rhiness was condoninq Olsen I felt he was part and parcel of the situation ~ On December 6, 1986 Wesley told Ms Howe that he had prepared a letter to be given to the Superintendent and handed it to her She read I it It was basically an apology for having given the note to Ms Howe and-- -_. ~\ . ~ - '? 33 for upsetting her He asked her why she had not charged him On her husband's advice, Ms Howe decided that the best tactic was to act as if the note incident never happened sometime later, while out of the cell Wesley asked Ms Howe where the note was She said that she did not recall getting a note from Wesley. Wesley flew into a rage, said that all officers were liars and hit Ms. Howe on the shoulder, knocking her down the stairs Superintendent Rhiness interviewed both Ms Howe and Wesley about the incident He asked Ms Howe how she wanted to proceed wesley was screaming that he wanted Ms. Howe to sue him in the civil courts Ms Howe testified that on her lawyer's advice, she decided there was nothing to be I 9sined by going to civil or criminal courts Towards the end of December, ..i -- ~~~ just before Mr. Rhiness went on vacation, he informed her that he had taken away 10 da:{5 of earned remission from Wesley--for the incident He also told her that "if you have other problems and get enough on Olsen, charge him.." Ms. Howe testified that subsequently, she had returned to work after a 2 week period of regular time off She realized that whereas in the past she had had a good rapport with inmates in corridors 1 and 2, she seemed to have suddenly lost their respec~ They ~~de suggestive comments to her They would refer a dictionary and ask her if she could define words such as "masturbatJ.on/J. They laughed and gi99ledat her. When she served meals _. through the porthole some threw the food right back at her Once inmate Wilson asked to speak to her She testified that she and Wil~on were "very close" He pulled something out from his pocket, held it close to his side and said "This is from a friend" It was a sharp metal object She had read in the memo book an entry that an inmate had 80 d 96E!9c[9!P000~8c 01 a)j~fleu~ss~a () l~UJ~N WOCl.::l WdPc :t>0 1.66't-170-H ~ { - - 34 been issued a metal finger guard. She ~ecognized that this was it Wilson had somehow got hold of the finger 9uard She did not show fear and quietly said "You should turn it over" The incident was reported to Lieutenant Blair and she discussed with him the series of problems she had been expe~iencing with inmates According to her, Mr Blair responded "Just wait and see. Olsen will do enough to hang himself II J On January 1, 1987 ir~ate Wilson was in segregation on a misconduct charge after engaging in an altercat1on. wilson commented to Ms Howe "What the hell is going on with you" and went on to say that an officer had told him that MS. Howe gave "hand-jobs" to natives. The same night Wilson .~ told Ms Howe that Mr Olsen told him that Mr Bellaire had caught Ms Howe red handed giving hand-jobs to inroAtes and said that if Ms Howe wanted he ~~,...- could have Mr Olsen fired for something he had done 5 years earlier Ms. Howe declined, saying that she preferred eo deal with her own affairs Ms Howe testified that since she had not denied or admitted giving hand-jobs to inmates, Wilson took it upon himself to inquire Wilson met with Lieutenant 8ellaire, and Mr Olsen and Ms Howe were also called in wilson told Mr Olsen ~You told me that Sergeant Bellaire had caught Ms Howe red-handed giving hand-jobs to inmates" Mr. Bellaire denied having said that. Ms Howe testified that when M~. Bellai~e denied, M~ Ol5en ~.. appeared to be very uncomfort:able and quipped "Then I must have been mistaken. It was Snchanburg who told me that " Ms Howe testified that later that day she discussed the situation with Lieutenant Bellaire She sUIJCJested that what happened "elearly --- - --- c0 d 96[19c[91~000~8c 01 Cl'>jO?FreuO?ss 1 a n IO?W1N WOi:l.::l WdT.t> t>0 ~661-t>0-11 ~ {;;jj --~ --- ( ( , 35 verified that it was Olsen spreading all these rumours" Mr Bellaire said "Yes Diane We will give him enough rope till he hangs himself" According to Ms Howe, in the summer of 1989 inmate Wesley was back in Haileybury Jail One day he requested a razor from Ms Howe In consultation with Lieutenant Oslund the request was denied because it was contrary to policy Wesley was irate and suggested to Ms Howe that she had denied his request because she still remembered that 3 years earlier he pushed her down the stairs She said that that incident had nothing to - do with it She told him, "You get no more and no less than any other inmate and that's the way it will be " When he returned to the corridor, Wesley made an accusation that Ms Howe was trying to poison him When she served meals he would refuse He claimed that all the women were trying to-poison him and that he would only accept a meal from new officer Diane Constant Shortly after, Wesley told a number of officers that Ms Howe had sexually assaulted him 3 years earlier and that he intended to charge her In addition he wrote a letter to superintendent Erickson making such an allegation and requested to speak to the Opp The OPP was notified of Wesley's allegation They attended at the jail and interviewed Wesley Ms Howe was instructed that the OPP would interview her at home However, after speaking to Wesley the opp determined that his accusation was unfounded and that it was unnecessary to interview Ms Howe Ms Howe testified that since that incident she found it very difficult working at the jail with Wesley present She requested from Mr Ericksen the Superintendent, that Wesley be transferred to another ( ( ~ 36 facili ty According to her, Mr Ericksen's initial position was that correctional officers must learn to deal with these problems and that he could not just transfer inmates without the inmate's lawyer's consent She did not find this explanation valid because she knew of inmates who were - transferred to Haileybury Jail from Monteith Jail She followed up with a letter dated March 16, 1990 to Mr Ericksen I am writing this letter hoping that you would be able to give me some advice and guidance ln how to handle what has become a potentially dangerous and explosive, not to mention uncomfortable situation with inmate Wesley, Joseph In the past I have done my job, I feel to the best of my ability and tried to deal with all 'matters professionally I know we have discussed this matter several times in the past As you know inmate Wesley, Joseph can make unfounded serious allegations against anyone he wishes to put in a compromising position Most of the time inmate Wesley, Joseph is housed in an area on his own where he is free to make any allegations he feels--- against me and my fellow CO's I hope you will be helpful in advising me how I can protect myself and continue to do my jOb as a correctional officer, and protect the integrity of the Haileybury Jail I know you have stated in the past that the reason for keeping this particular inmate since last November, was because we needed his lawyer's consent to move him This is an internal situation and we should handle it so it remains so If I need further advise, I may be able acquire it from the following peopl:e I'll be waiting for a written reply On March 27, 1990, Mr Ericksen replied as follows In response to your letter of March 16th, 1990, I would provide you the fo~lowing advice ( ( - 'i - 37 Dealing with inmates such as Wesley is very difficult and particularly so for female staff There has never been any concern about your ability to do your job, or to deal with the problems posed by inmates such as Wesley As far as protecting yourself against unfounded allegations, you have, to my knowledge, done all that is required Should you feel further action is necessary, then alternative measures may be considered, such as moving the inmate to another institution, if possible; assigning you to tasks which limit your contact with the inmate in question, or assuring you are not in contact with the inmate without another officer being present As a last resort, there is nothing to prevent you or the ministry J from taking the appropriate action through the courts should the inmate persist in his inappropriate behaviour Unfortunately, because of the nature of our work, we cannot always avoid contact with or dealings with individuals such as Wesley I feel you dealt with the problems posed by Wesley in a professional and competent manner and I have every confidence you will deal with the situation in a similar manner should he be re-admitted Shortly after Wesley was sentenced and was transferred to another institute Ms Howe was asked by union counsel what the cause was for her problems with Wesley Her response was, "It appeared he was being cranked up by an officer He can be easily led An officer was leading him on, because when he first arrived he was quiet and I had no problems" When asked who, in her opinion, was cranking up Wesley, Ms Howe named ---Lieutenant O'Donnell When aske~ to explain why she thought so, she said - --~-_._-_. ( c - j ~ .. 38 that Mr Olsen had left the jail in 1987 and had no contact with Wesley after that Mr O'Donnell worked night shifts in that period She said that while she was not on duty on those shifts she had been told that he was seen talking to Wesley "a lot" She said that she has never confronted Mr O'Donnell with her allegation that he was cranking up Wesley With the aid of a diary she had kept, Ms Howe went on to attribute a number of incidents relating to Mr O'Donnell, which she found objectionable On October 19, 1987 Ms Howe and Ms Purkhart were scheduled on the day shift and Mr O'Donnell was scheduled to be shift I C He called in sick Mr O'Donnell later came in to the jail in street clothes and Ms Howe testified that he did not appear to be sick Later Lieutenant Cote told Ms Howe that he had overheard Mr O'Donnell tell Mr Regan that he called in sick because he did not want to work a shift with 2 females Ms Howe testified that when on duty as top floor officer, she was expected to do checks every 20 minutes However, several times she was left in the duty office to relieve Mr O'Donnell for long periods As a result she was unable to do her 20 minute checks In order to record why she had not done the checks, and "cover her own butt", Ms Howe started to record in the log the periods when she relieved Mr O'Donnell in the duty office Mr O'Donnell "counselled" her that she should not make such log entries On January 16, 1989, she was on night shift and was required to check a particular inmate every 10 minutes -Mr O'Donnell instructed her to relieve him in the duty office and was on the floor playing chess _with an - ( c - c~. - 39 inmate Ms Howe was unable to do the 10 minute checks When she raised this with Mr O'Donnell told her that he was in charge of the shift and that he will decide when he would return to the duty office Ms Howe felt that Mr O'Donnell should have returned to the office in time to allow her to do her work or should have done the 10 minute checks himself On March 1, 1989, Mr O'Donnell was shift I C and Ms Howe was "keys officer" Two male inmates had to be admitted after returning from courts Ms Howe reported to the sally port area to receive the inmates Mr O'Donnell did not want her "frisk searching" the inmates He directed that she go and relieve a male officer, so the latter could frisk search the inmates According to Ms Howe she was disgusted because there was no policy prohibiting female officers frisk searching male inmates and she had done frisk searches of male inmates several times in the past Ms Howe testified that on August 26, 1989 Mr O'Donnell was acting Superintendent Acting shift I C Bridge needed someone to be acting shift I C for a few hours that afternoon He asked Ms Howe and she agreed to do it Subsequently she found out that Mr Regan had been assigned the shift I C work she was expecting to do Ms Howe had approximately 1-1/2 years more seniority than Mr Regan Ms Purkhart, who also had 6 months more seniority than Regan was also at work Me; Howe asked Mr Bridge why Mr Regan was given the shift I C assignment Bridge informed her that Mr O'Donnell had instructed him to appoint someone as shift I C and had added "I don't care who it is as long as it is not a female - especially not Howe" Mr Bridge told Ms Howe that if she wanted to complain to the Superintendent, he would support her -. ( -~,. - ~ ~ 40 On September 11, 1989 met with Superintendent Ericksen in the presence of Mr Bridge, Mr O'Donnell and Ms Sue Morin, the Office Manager Ms Howe related to Mr Ericksen her concern about being overlooked for shift I C assignments despite her greater seniority and about Mr O'Donnell's direction to Mr Bridge Mr Bridge confirmed what Mr O'Donnell had told him Mr O'Donnell responded that he had been drinking that afternoon, and that he could not recall stating specifically ~especially not Howe" He made reference to a letter he had seen in Mr Howe's file to the effect that she did not wish to be considered for shift I C assignments She testified that this letter had been written back in 1987 or 1988 as part of a union work slow down She believed that every officer had written a similar letter at the time She testified that at the time she wrote that letter, a joke went around the jail - that she need not worry because she will not be asked to be shift I C anyway Ms Howe testified that sometime later, Mr Ericksen asked her whether she intended to file a human rights complaint with regard to this issue She told him that she would decide, and decided not to do so On October 5, 1989 Mr Ericksen inquired from Ms Howe whether she wished to be considered for a 6 to 12 month secondment as acting shift I C He explained that there was an "equal rights program" for minorities and that he was prepared to submit her name As a result she signed an application form presented by Mr Ericksen According to Ms Howe, when it became known that she was aspiring to be shift Ie, she was subjected to ridicule Mr Hughes, who at the time . was local union president, made statements to the effect that if she ever became shift I C "The boys" would never support her or work for her She - -.'.- " 41 confronted Mr. Hughes and told him that she did not appreciate his statements Mr Hughes apologized and assured her that if she became shift I C. he would do his best to support her Ms Howe also told Mr. Hughes that she was aware that he had be@n repeating rumours about her affair with Olsen and about her qiving ~hand-jobs" to native inmates, and that those rumours had made her lose self-esteem and made it difficult for her to function as a correctional officer She told him that she had paid her oue$ for her affair with Olsen and that there was no truth to the rumour about "hand jobs" to natives His response was "Dlane, do you really think I believed that" Ms. Howe told him that she did not care what he believed, but she did not want him repeatinq those rumours. According to Ms Howe, Mr Huqhes did not deny that he had repeated the run\ours -- Ms Howe related about difficulties she had wi th an inmate named Gunner, sometime in 1988. During rounds one night she observed Gunner naked in his eell She told her eo-worker casual correctional officer, Mr. G Leopold On her next round, she again noticed that Gunner was naked On her 3rd round she observed Gunner at the end of the bed and his body movements indicted to her that he was mastrubating She also noticed that there was semen on the floor outside Gunner's cell On the next round she' asked Mr Leopold to accompany her Gunner was repeating the same conduct When he saw Mr Leopold, Gunner was enraged and ordered Mr Leopold to get out Mr Leopold told Gunner that he should be a$hamed of himself \ Ms Howe testified that Gunner's behaviour, was clearly subject to , a misconduct charge. Being naked in a cell itself was contrary to the rules Yet she did not want to make a --formal report because she feared that, like inmate Wesley, Gunner might retaliate by making false - --. 'to d 96~'t92~91p000~82 01 .'>I~A'E?u'E?ssJa () P?W J N WOd.:l Wd0p 170 ~661-170-H 42 accusations against her Nevertheless, she spoke to Superintendent Falls about the inei.dent He sympathized with her but did nothing more Mr Falls asked what may have stirred up Gunner to behave that way When she said she had no proof Mr. Falls said, "Do you feel its a lieutenant? Are you thinking of O'Donnell" Ms. Howe testifiied that subsequently Gunner "had done the sarne thing to other female officers" and that they had filed reports Lieutenent Burns was assigned to investigate those reports When Mr Burns spoke to Gunner, Gunner had accused "an older female officer" of coming on to him. She took it as a reference to herself because she was the oldest of the female officers She denied in testimony that she had been eoming on to Gunner When union counsel asked if she knew whether Mr 0' Donnell was "spoken to" by the employer, she said that she did not However, she did testify that Gunner was counselled about his behaviour and that after that there was no problem with Gunner. Next Ms Howe testiifed about an incident on September 25, 1989 Lieutenant Cote had given her directions to prepare inmates for transfer in a certain mar-nero Mr O'Donnell subsequently ordered her to do that differently Later on when Cote found out that his Sudbury inmates had were not ready for transfer as per his instructions, he was angry When she explained that Mr O'Donnell had over-ridden his instructions to her, Cote said, "all O'Donnell is trying to do is fuck you around U Ms Howe testified that after she had declined the offer to do the Sudbury transfer, (which Ms Dalton had declined initially) Mr O'Donnell .-- counselled her He told her that she had refused a direct order He told 10 d 96~19c~91pe00~8c 01 a>1-eA-eu-ess~a () I-eWiN WOd.:l Wda 170 ':"661-170-11 " -- ( .. 43 her that if she had safety concerns, she had to "do it and then prove that it was unsafe" Subsequently, Mr O'Donnell asked whether Ms Dalton or Ms Howe intended to do anything about the Sudbury transfer incident He .- mentioned that some inmates constantly file complaints with human rights and with the Ombudsman, that "when that happens, they don't take you seriously" He said that if a human rights complaint is filed, human rights would call the jail and it would become known within the jail that she filed a complaint Ms Howe took this last comment as a threat - that if she filed a human rights complaint about the Sudbury transfer incident, he was going to find out 4'1 December 13, 1989, according to Ms Howe was a very busy day The officers on duty Ms Howe and Mr Willet had many duties to complete by 10 30 a m Mr O'Donnell, who was shift Ie, gave them directions to move inmates from corridoors 1 and 3 into corridoor 4 He said that inmate yard could be done after 1 00 P m In order to do this they had to move the inmates in corridoor 4 into corridoor 5 To effect a move, each inmate's personal belongings had to be packed All areas had to be searched A lot of work was involved Ms Howe and Mr Willet worked continuously without a break and got the various inmate moves as directed by Mr O'Donnell completed by 10 30 a m They felt that since there was time, they should complete yard (half hour periods when groups of inmates are let into a secured outdoor area for exercise) for at IBast some inmates before lunch They had finished yard for one group and were returning them when O'Donnell turned up and was outraged with Ms Howe and Mr Willet for doing yard before lunch, when he had instructed that yard should be done after 1 00 P m He directed Ms Howe and Mr willet to put the inmates back in the areas where they were in the morning They had to reverse the inmate move I --- I -- - ( (.,: ,,- 44 allover Ms Howe testiifed that she and Mr willet felt that they had been extremely efficient and had worked tirelessly to finish the assigned work ahead of schedule According to Ms Howe, Mr willet was so upset that he threw up his hands, booked off sick and went home ---- t; - The same day, Ms Howe and Mr Flemming went to take a mentally unstable inmate to be showered The inmate did not want to shower at the time Later in the day after Mr Flemming had left, the inmate requested to be showered but stated that he did not want to shower in front of a female officer She testified that she later heard Mr O'Donnell say to another officer that the inmate should file a charge of sexual harassment against Ms Howe She ignored the comment Ms Howe testified that on another date, Mr willet called her at home and asked her to report at the courts to testify against an inmate She was told to go immediately and not to bother wearing the uniform For court duty officers had to sign in, in order to be paid She had no time to sign in before going to courts However she returned to the jail after ., ~~~ courts in order sign in Mr O'Donnell told her that she would not be paid her 4 hour call in pay because she was not in uniform However, she was paid On January 4, 1990 Correctional Officer Brian Little and Ms Howe were on the main floor Mr O'Donnell, speaking to a group of males said "One down and three to go" Ms Howe testiifed that Correcitonal Officer Michelle Wadge had left the previous month She understood Mr O'Donnell's reference to "one down" as a reference to Ms Wadge's departure and the "three to go" as a reference to the three females still remaining at the ( ( ~ 45 Haileybury jail as correctional officers i e Ms Howe and two casuals Mr Little appeared to be disgusted by Mr O'Donnell's comment, but the other males snickered as if it was a joke Ms Howe felt as if she was ----- under personal attack The following day, an inmate was to be released Mr O'Donnell asked Ms Howe to call and confirm that the inmate will have a ride at the time of his release When Ms Howe talked to the inmate, he told her that another officer had already called and arranged for a ride for him However, at the time the inmate was released there was no ride Mr O'Donnell asked Ms Howe why she had not called as instructed, she explained that she was told that a ride had already been arranged Mr 0' Donnel reprimanded her and told her that when he gives an order she should just follow it regardless On March 2, 1990 two OPP officers, one male and one female, brought in an inmate to be admitted to the jail Ms Howe was there at the Sallyport along with Mr O'Donnell Mr O'Donnell told the male opp officer "You'd expect they would send someone more capable with you" Ms Howe took it as a reference to the female OPP officer Ms Howe testified that Mr O'Donnell once commented to her that female officers found him very appealing and were falling allover him She quipped "In you wildest dreams" and walked away On April 9, 1990, Ms Howe was at the kitchen door receiving an inmate meal tray Officer Regan was stahding in line behind her He grabbed Ms Howe's bra strap from behind and snapped it She attempted to -. c ( ~ 46 kick him in the shins and he just laughed Ms Howe said, "I can take a lot of jokes, but do not ever touch me H Ms Howe testiifed that on April 19, 1990, in the presence of Mr .._-- Ericksen Mr O'Donnell falsely accused her of pushing the button to open - the control doors to let a prisoner in, when it was Mr O'Donnell himself who had pushed the button In May of 1991 one day Mr O'Donnell was shift I C He assigned ) himself an Mr Willet to do an escort which included a male inmate and a female inmate She felt that it would have been "more appropirate to send 7- meH because policy required that female officer be involved where a a female inmate was to be escorted and also because sending her would have resulted in 4 fewer hours of overtime that day Similarly on anotner occasion male officer Plante and Chirsto were assigned an escort requiring the delivery of a male inmate to Penetanguishine and bringing back a female inmate, when Ms Howe was available Male officers Mawhinney and McVittie ~1 were sent on a multiple escort to North Bay-Sudbury-Timmins which involved a female inmate and several males Assigning Ms Howe would have been in compliance with policy and would have saved the employer some overtime citing the foregoing incidents, Ms Howe asserted that because she was a female, she was overlooked and denied opportunities for escort duty In all these incidents Mr O'Donnell was in charge Ms Howe testified to the effect that when Mr O'Donnell was in charge he made it very difficult for Ms Howe She gave a number of examples -- ,.- (, ( ~ 47 - Once Ms Howe and another officer got an inmate who was in protective custody dressed up to do yard When they looked for the key it was not there Mr O'Donnell had taken it with him The inmate did not - have his yard time and had to be returned to his cell He was annoyed with Ms Howe and the other officer - Ms Howe testified that when she was floor officer, Mr O'Donnell once went down on his hands and knees to check for dust on the floor under beds She said that when checking male officer's work, Mr O'Donnell did not usually even enter the room with her, he was "over-exhuberent" about his authority and wanted things done his way When asked if he was the ':;;;~: same with male officers, her answer was "No When he tried it I've heard male officers tell him where to go in very impolite terms He would just shrug and walk away" Ms Howe testified that in addition to the "bra snapping" incident by Mr Regan she was subjected to other forms of inappropriate physical contact After the incident wi th Mr Olsen, Correcitonal Officer Rick Morris was in the habit of walking up from behind and blowing in her ear She was annoyed and told him numerous times to stop it When he did it again one day she slapped him That put an end to Mr Morris' behaviour On two occasions, when Ms Howe was ~riting in the log, Lieutenant Cote carne from behind and "rubbed his leg up the back of my leg" and made comments like "Oh I wish you were not married" The first time, Ms Howe told him she did not appreciate his behaviour When he did it the next time on October 15, 1987 she "retaliated by h~tting him" He just laughed He did not repeat his conduct after that - ,. j ~ . 48 On .January 16, 1987 casual correctional officer Mr Parker poked Ms Howe in the back with a key while she was bent over signing the key sheet and made a rude comment about Ms Howe's "buns II Then he said, \'I guess now you a:te going to charge me". Ms Howe quipped "It looks like the company you keep is rubbing off on you" He laughed .--.- - On a few occasions, Mr. Hurteau poked her in the back. The last time he did it on September 17, 1990, Ms. Howe gave him a warning and said "You will look funny with my hand print on your face" His oonduct stoppped after that. Ms. Howe testified that for correctional officers completing management traininq courses is very helpful in obtainina promotions She had previously done two such courses in Toronto. The first time the Ministry reimbursed her for transportation costs as well as workshop costs. The second time, she was in Toronto for personal reasons an~ay when she did the course So she reque~ted only for w~rkshop costs and ~as paio. Subsequently she did a similar course and requested the office manager Mr Kurt Arthur for reimbursement. She received a letter to the effect that the Ministry no lon~er paid for education Ms Howe also qave testimony about the qoing away pa~ty for Mr David Writ at the Lakeshore Hotel, where a stripper performed The testimony was similar to and corrobarative of the evidence of Ms Loach and Ms. Dalton. Ms. Howe testii!ed that in the spring of 1992 she was mentally stressed out as a result of the situation at work. On the advice of her physician Dr Hamilton, she took time off from work She discussed her 1:0 d 96~t91:~9tv000~81: 01 a'li'E'A'E'u'E'SSla () l'E'WlN WOCl.:l Wda v0 ~661-170-11 _.~_.- v q I . " 49 illness and the problems she was having at work with a number ot OPSEU officials. She spoke to another Local Union President who gave her the name of an OPSEU representative Mr Barry Scanlon. She contacted him and had a long discussion about the problems she faced at work and her mental illness. Mr Scanlon gave his opinion that in her mental state she should not be proceeding with a WDHP complaint at that time. She a9reed to think about it She was struggling in her own mind, wondering whether she would be strong enough to go through with a complaint. It was at this point, that Ms. Loach requested Ms Howe to accompany her to the interview with Ms Maclean wi th re9ard to Ms. Loach's WDHP complaint When Ms Loach started to relate her experiences, her own experiences came to mind. Ms. Howe got very upset and emotional She left the room twice, went to the toilet and was crying. After She returned to the meeting, she was asked if she had anything to say She broke down She briefly told the investigators about the harassment she had suffered at work. The investigators asked her to go home and said that they would speak to her the next day. The next day they met again and Ms Howe related her story. The co-investigator Mr. Lewis told Ms Howe that she should take two weeks off with pay and assured her that he would arrange for that. They said that if Ms Howe So wished, an investigation with regard to her allegations could begin in about 2 weeks After a lot ot thought Ms Howe decided that she could no longer "grin and bear" and decided. to file WCHP complaints against Superintendent. Rhiness, Superintendent Ericksen and Lieutenant O'Connell Ms Rita Koehl was appointed to investigate her complaints She was interviewed at length by ~"-, Ms Koehl Following the completion of the investigation Ms Howe received letters from the Deputy Minister with regard to each of her complaints E0d 96[r9c[9rv000~8c 01 a'>1'efh~u1?ss t a () I'eUJlN WOel~ WdL,c 170 L,66 1:-170- n .. ~ 0 v Q . .. 50 With regard to her complaint against Mr ~~iness, she receivec the following letter dated April 13, 1993: Please be advised that r am in receipt of an .- investigation report regarding your complaint of sexual haraSSMent against ~r. Pat Rhines$ under the Workplace Discrimination and Harassment Preven.tion Policy You have alleged that Mr Rhiness harassed you on the basis of your gender, by both actions and comments which he should have known to be inappropriate and unwelcome. The investigator concluded that the facts gathered during the investigation prove, on a balance of probabilities, that Mr Pat R...",iness required you to cut an ilunate's hair, provide scissors to another inmate for the purpose of cutting an irunate's hair and, in the company of another correctional officer, followed you ~nd a correctional officer when you left the institution following the completion of a shift. The investigation has concluded that the above acitons do not constitute gender based harassment under the p3:ovisions of the pOlicy, but were inappropriate and unprofessional I would like to assure you that the appropriate remedial - act~on is being taken, both as a result of this incident and to ensure that such behaviour is not repeated in the future. Thank you for bring1ng your concerns to my attention The following letter dated March 26, 1993 \ias received about her complaint against Mr Ericksen Please be advised that I am in receipt of an investigation report regarding yom: complaint of gender- based harassment and discrimination again,st Mr. Eric Ericksen You allege th.at Mr Ericksen discriminated against you by denying you trainir.g and career opportunities generally available to your male counterparts and by treating you mere harshly than male correctional officers In a.ddition, you allege that Mr Ericksen failed to ~espond to other incidents of sexual harassment directed toward you and other female staff within the institution -.-, After a thorough investigation, it has oeen conclUded that the allegations of gender-based__,~j.scrimination and 96~19~~91v000~8c 01 il)feAeu'E?ss ~ a () l'E?UJ1N WO~;::I Wd8~ v0 L.661-t70-H t70 d ~ . - ( ( q ;; 51 ~harassment cannot be proven on a balance of probabilities and the Ministry is, therefore, unable to proceed further with this complaint .-__ If you believe new incidents have occurred or you wish to discuss the options available to you, I recommend you communicate with the Workplace Discrirninatin/Harassment Prevention advisors for the Northern Region Ms Rosemary Toner or Mr Barry Sullivan at (705) 675-4321 -- Thank you for bringing this matter to my attention While the allegations against Mr Rhiness and Mr Ericksen were found to be not proven, a different conclusion was reached with regard to Mr O'Donnell Ms Howe received the following letter dated April 13, 1993 Please be advised that I am in receipt of an investigation report regarding your complaint of gender - based harassment and discrimination against Mr Michael 0' Donnell under the Workplace Discrimination and Harassment Prevention Policy The investigator concluded that the facts gathered during the investigation prove, on a balance of probabilities that you were harassed and discriminated against by Mr Michael 0' Donnell on the basis of your gender This ,< conclusion was based on the credibility of the persons ~ involved, patterns of behaviour of Mr O'Donnell based on the testimony of witnesses the investigator's interview with him and evidence of recent complaint I have carefully reviewed the investigation report, and I am satisfied there is evidence in support of your complaint Accordingly, I will ask my designate to arrange a meeting with Mr O'Donnell so that the appropriate remedial action can be taken without delay Thank you for bringing this matter to my attention In this way, you have made a contribution to the establishment of a harassment free work environment I I ~J · ( - ( ~ ~ =- 52 ~ Sexual Harassment Grievances All 3 grievors have grieved that they were subjected to sexual harassment Sexual harassment is a form of discrimination on the basis of sex Article 27, only has the effect of making an explicit proscription against conduct, which otherwise would have been prohibited under the general provision against discrimination on the basis of sex contained in article A 1 Sexual harassment may take many forms While in most cases sexual harassment will involve more than an isolated single act, there is no hard and fast rule as to whether repeated acts must be proven In Kotyk and Allary (1983) 4 C H R R , D1416 at D 1430 the tribunal wrote It is likely that a single unrepeated act is not harassment unless it results in the denial or removal of a tangible benefit available or offered to other persons in similar circumstances, or unless it amounts to an assault, or is a proposition of such a gross or obscene nature that it could reasonably be considered to have created a negative or unpleasant emotional or psychological work environment A "normal" proposition or suggestion would probably not have this result To this extent, the last-quoted paragraph in Bell, quoted earlier, is adopted However, repetition of otherwise unactionable conduct may constitute harassment when it can reasonably be considered to have created a poisoned work environment ./ Sexual harassment includes a variety of gender based comment or conduct which has a demeaning effect on the victims In Bell v Flaming Steer Steak House (1980) a C H R R D 155 at p D 156 the Board held The forms of prohibited conduct that, in my view, are discriminatory run the gamut from overt gender based acti vi ty, such as coerced intercourse to unsolicited physical contact to persistent propositions to more subtle conduct such as gender based insults and taunting, which may reasonably be perceived to create a negative psychological and emotional work environment There is -- .- I ~ ( ( ~ - " " ~ : : 53 no reason why the law, which reaches into the work-place so as to protect the work environment from physical or chemical pollution or extremes of temperature, ought not to protect employees as well from negative, psychological and mental effects where adverse and gender directed conduct emanating from a management hierarchy may reasonably be construed to be a condition of employment Conduct or comment may be found to be unwelcome even where the grievor did not expressly object, and the fact that the grievor continued in employment and endured the harassment is not a defence In Cuff v Gypsy Restaurant, (1987) 8 C H R R D 3972 at p D 3982 the Board of Inquiry observed A complainant who clearly indicates to the respondent that his actions were unwelcome will more likely be able to satisfy the condition that the respondent knew the behaviour was unwelcome A _._ complainant who did not clearly make it known to the respondent that his behaviour was unwelcome will have to show the respondent ought to have known that it was unwelcome In the latter case, attempts to let the respondent know that his behaviour was unwelcome, albeit perhaps indirect or weak, will go towards establishing whether or not the respondent ought to have known hi s behaviour was unwelcome But in addition, the "ought to have known" alternative recognizes that the responsibility for appreciating the offensiveness of certain behavior does not rest entirely with the complainant Boards of inquiry under the previous Code had a similar understanding of the nature of sexual harassment In Bell & Korczak v Ladas & the Flaming steer Steak House, supra, at D/157 the Board stated "the willingness to work is of no moment because persons in need of employment may be prepared to endure certain humiliations because of their financial need" Failure to terminate employment or a willingness to endure the situation similarly did not inhibit a finding of sexual harassment in Torres v Royalty Ki tchenware Ltd & Guercio (1982) 3 C H R R D/858 at D/860 (Ont Board of Inquiry) In Robichaud v The Queen (1988) , 40 D L R (4th) 577 (8 C C ) La Forest J Considered the liability of an employer for sexual harassment -- ---~ v C C '" ~ . " ~ = = 54 committed by its employees, under the Canadian Human Rights Code At p 582 La Forest J noted that human rights legislation, is not aimed at determining fault or punishing conduct It is remedial Its ~im is to identify and eliminate discrimination If this is to be done, then the remedies must be effective, consistent with the "almost constitutionalH nature of the rights protected At p 584, he continued his reasoning Indeed, if the Act is concerned with the effects of discrimination rather than its causes (or motivations), it must be admitted that only an employer can remedy undesirable effects; only an employer can provide the most important remedy - a healthy work environment La Forest J concluded that the Canadian Human Rights Code required - that employers be held liable for the discriminating acts of their employees whose actions are work-related He did not rely on principles of vicarious liability, holding that the employer's liability is founded within the statute itself At p 584 he held hence, I would conclude that the statute contemplates the imposition of liability on employers for all acts of their employees "in the course of employmentH, interpreted in the purposive fashion outlined earlier as being in some way related or associated with the employment It is unnecessary to attach any label to this type of liability; it is purely statutory Under the present collective agreement, it is the union's position that article 27 gurantees a work environment free from sexual harassment contrasting the language in article 18 1 relating to health and safety, counsel submitted that the employer's obligation under article 27 is no~ limited to taking all reasonable precautions If the union's position is ----- - - ~. ( ( ! -- g)' ':i 55 that article 27 imposes "strict liability" on the employer in every case where an employee commits sexual harassment, Robichaud does not stand for such a proposition That argument has been rejected by this Board In Re McKinnon, 905 A/92 (Gray) dealing with article A at p 29 the Board held One of the issues before us is whether the language of Article A makes the employer "strictly" or vicariously liable for the conduct of the individual who entered the entry in question in the OMS training region We are not persuaded that the Supreme Court's decision in Robichaud supports the union's position on this issue The Court was concerned there with an employer's liabili ty for the conduct of a supervisory employee toward an employee over whom he exercised supervisory authority, under a statute which had remedial and other provisions which suggested that an employer's vicarious - responsibility thereunder must be broader than its responsibility for the criminal or tortious conduct of supervisors While we accept that the person who made the entry in question here was most likely an employee, there is no evidence that that person was a supervisor There are no remedial or other provisions in the collective agreement which suggest that the employer undertook broader vicarious responsibility for employee conduct under Article A than it bore under other provisions of the agreement We are not persuaded that a single discriminatory act by one employee toward another which the employer has neither authorized nor encouraged nor enabled by the conferral of supervisory authority amounts to a breach by the employer of Article A That does not mean that Article A imposes no responsibili ty on the employer with respect to discriminatory treatment of one of its employees by another Even though Article A does not address the matter as directly as the Code does, the employer does not dispute and in any event we are satisfied, for the reasons set out in Simm and Dhillon, that the employer's obligation under Article A not to discriminate against employees includes an obligation to take reasonable steps to ensure that employees are free from discriminatory treatment by others in the workplace The employer argued, however, that Article A does not address reprisal conduct - that is, treatment of an employee in an adverse, unwelcome manner because he or she is pursuing or has pursued a grievance under Article A or a complaint under the Code It seems to us that__,the rights conferred ' on employees by Article A would be largely illusory if the employer were free to subject, or to stand idly by I while other employees subject, a grievor or complainant - ( ( - .. " , . ~ 56 to reprisal conduct The employer's obligation to take reasonable steps to ensure that employees are free from discriminatory treatment surely includes an obligation to take reasonable steps to ensure that employees are free from reprisal when they properly assert their right to be free from discriminatory treatment Obviously, the .. employer's obligation in that regard is not conditional '~\ on the affected employee's persuading either the employer or the appropriate tribunal that his or her complaint or grievance is or was meritorious In Re Chan, 1990/90 (Dissanayake) the Board, dealing with a case of racial harassment, also held that Article A did not impose strict liability At p 45 it wrote The Board agrees with the employer to the extent \~ that under either article A 1 or article 18 1 there are no absolute guarantees on the part of the employer There is no strict liability on the employer, in that merely because an employee racially harassed or put another employee at a health or safety risk, the employer is not thereby exposed to liability The employer's _.- liability depends on its knowledge of the offensive conduct and its response to it However, in considering the employer's knowledge the test is not purely subjective If the employer lacked knowledge because it showed a lack of interest or did not have a reasonable system for detecting and monitoring of offensive conduct, that does not exonerate it To hold otherwise would be to make the obligation imposed on the employer by the collective agreement provisions meaningless The employer would be able to circumvent that obligation by merely closing its eyes and ears The parties could not have intended that While the present greivances are filed- pursuant to the specific provisions of article 27, the Board is of the view that there is nothing in the language of that article which indicates that the parties intended to introduce strict liability Strict liability is an unusual and extreme undertaking by a party Much clearer and explicit language is required to satisfy us that the parties intended such a result --- - ._~.- - ( ~, ~ - - -; CJ . 57 The Board prefers the approach adopted by the Board of Arbitration in Re CUP E and 0 P E I U (1982) 4 LAC (3d) 385 (Swinton)at pp 404- 405 In cases where one employee alleges harassment by a fellow employee, the employer is not liable unless it knows or ought reasonably to know of the harassment An employer is vicariously liable, even in the absence of such knowledge, only for the acts of its supervisors See Dhillon, supra, Bell, supra An employer who receives a complaint about harassment by other employees and does nothing to investigate can be held responsible for the harassment because of its inaction see Continental Can Co, v state of minnesota, supra, where the Minnesota Supreme Court stated that while "the Act does not impose a duty on the employer to maintain a pristine working environment", the employer should take appropriate action when it knows or should know of co-employees' harassment (at p 1814) Similarly, in Heelan v Johns-Manville Corp (1978) 451 F Supp 1382 (Dist ct Col ) The court stated that an employer should investigate complaints and "correct" violations of the law (at p ~1390) This does not necessarily require a finding of truth - so long as recurrence of illegal conduct, if any is effectively -- prevented The employer, as a corporate entity, must necessarily act through its agents, the members of management The acts of the management are the acts of the employer itself Therefore, it makes very good sense to hold the I employer liable for the sexual harassment committed by members of management in all cases On the other hand, in the absence of clear I language introducing a concept of strict liability, an employer should only I be liable for sexual harassment - commi tted by t.ts employees, where actual or deemed knowledge, as described in Re Chan, is found to exist supra, The employer counsel's approach to interpreting article 27 is a very narrow one Relying on the definition of "harassment" in the Ontario Human Rights Code as "engaging in a course of vexatious comment or conduct, that -- --- -_.~---_.~ ( (.... -.... \ -- . . 58 is known or ought reasonably to be known to be unwelcome" counsel took each alleged act in isolation and applied the tests of whether the act was "vexatious" and whether it constituted a "course of conduct" In most cases, he urged a conclusion that the act did not constitute a course of conduct by the perpetrator and. since the act itself was not of a very serious nature, took the position that it would not constitute sexual harassment In our view such a narrow interpretation is inappropriate The purpose of article 27 is remedial The goal is to provide women, a work environment free from hostility and ridicule based on gender Where the employer manages the workplace in a manner that encourages or permits behaviour that leads to such an environment, it is contrary to the spirit - and intent of article 27 Such an environment, where comments and conduct that tend to ridicule or disparage a protected group, even if not directed at specific indivi$iuals is often referred to as \\ a poisoned work environment" In the Report of the Bell Cairne Centre Enquiry, January 13, 1993, Judge Inger Hansen, at p 10 writes Harassment, a form of discrimination, includes behaviour such as demands, threats, gestures, innuendos, remarks, jokes, slurs, displays of offensive material, and physical or sexual contact Harassment also includes any inappropriate or unwelcome attention or comments relating to a person's physical characteristics or appearance, habits, customs or mannerisms At p 26, she stated that a "poisoned work environment" includes an environment where an employee is subjected to sexually oriented remarks, behaviour or surroundings that create an intimidating, hostile or offensive work environment, or behaviour or surroundings which are conducive to sexual harassment -.., ( ( ---- - '^ . ::- ::- 59 The employer's own Workplace Discrimination and Harassment Prevention (WDHP) Guideline includes the following Poisoned Work Environment Harassment may also result from comments or conduct that tend to ridicule or disparage a protected group even if not directed at a specific employee This type of harassment, because of its harmful effects,-is often referred to as a poisoned work environment and is prohibited under the directive A single remark or action could be in violation of the directive if it is serious enough to poison the environment for the person subjected to it Excluding minorities and women from important activities within a workplace can also create a poisoned environment by generating a climate where such groups believe their contributions are _not valued Harassment can be practised by co-workers, by supervisors towards their employees or by employees towards supervisors For example racial minority, female, gay or lesbian managers may be subjected to harassment by those who report to them Efforts of a co-worker to undermine the well-being or job performance of an employee or failure to provide appropriate support and encouragement because of the grounds set out above can also constitute harassment Such conduct undermines self-esteem and contributes to stereotyping and discrimination Sexual Harassment Sexual harassment is further defined as a situation where an employee receives unwelcome sexual attention from any employee and such comment or conduct is known or should reasonably be known to be offensive, inappropriate, intimidating and/or hostile behaviour; an employee receives unwelcome sexual attention and is threatened or_._penalized by a loss of job, denial of advancement, raise or other employment benefit for noncompliance wi th sexual demands by a person in-a: position -~---~-_.- ~, c - - (/ . ...~.. .\w." ':i " 60 of authority who knows or should reasonably know that the sexual attention is unwelcome With the foregoing principles in mind, the Board turns to the particular grievances Ms Loach's sexual harassment grievance There can be absolutely no doubt that Ms Loach was subjected to sexual harassment by Mr Eriksen His comments of a sexual nature, his persistent invitations and personal attention towards her, clearly fall within any reasonable definition of sexual harassment While it is true, as employer counsel pointed out, that Mr Eriksen's interest in Ms Loach quickly ceased as soon as she began to assert herself, she should not have been put in a position whe~e she had to fight back It should have been obvious to Mr Eriksen that his behaviour was unwelcome Mr Eriksen was a member of management In fact, he was at the top of the management hierarchy at the jail The employer is directly responsible for his actions and was in breach of article 27 The Board also finds that Mr Rundle, a bargaining unit employee sexually assaulted her, by sexually touching her and kissing her The employer must take responsibility for this behaviour because it knowingly allowed the creation and continuance of a poisoned environment at the jail There is abundant evidence, - and some of it will be reviewed later in the award - that some lieutenants, who are part of management, routinely condoned, and on many occasions participated in, sexual harassment of women employees at the Haileybury Jail Moreover, the person in charge of the jail, the Superintendent, was sexually harassing Ms Loach The Board is -- I (, ( < 61 convinced that this behaviour on the part of members of management would have encouraged subordinates to engage in similar offensive behaviour In other words, the employer, through the actions and omissions of its management staff, created and fostered a poisoned work environment, where ~--- male employees felt secure that no adverse employment consequences would flow from their offensive conduct and women employees were made to feel that they had no choice but to endure such conduct if they continued to be employed at the Haileybury Jail By creating and allowing such a poisoned work environment to continue, the employer was in violation of article 27 10 1 which imposes a positive duty on it to ensure that its employees are free from harassment in the workplace because of sex ~ Ms Dalton's sexual harassment grievance - There is abundant evidence tha t , like other women employees at- Haileybury Jail, Ms Dalton was exposed to comments and conduct degrading to her as a woman As the evidence reviewed above discloses, comments degrading women were common place Even though some of it was not directed I specifically to Ms Dalton, she was forced to endure such comments That is sexual harassment of Ms Dalton Some comments were in fact specifically directed at her, sometimes in the presence of members of management who did nothing She was subjected to unwanted and unwelcome physical contact Some of the most reprehensible actions were by a lieutenant, Mr Cote As with Ms Loach, the Board finds that it was the poisoned work environment tolerated and fostered by members of management, which led to the harassment which Ms Dalton had to suffer The employer must take responsibility, not only -for the harassment inflicted by members of its -~- - ( C 62 management but by its employees By permitting such harassment, the employer was in violation of article 27 10 1 with regard to Ms Dalton ".- The Board is satisfied that Mr O'Donnell is being truthful when he testified that the "pornographicH scene which he was watching on January 13, 1994 was contained in a movie he had taped from his TV at home We are further satisfied that he did not intend to harass or otherwise upset Ms Dalton or anyone else, by wa tchi ng that movie at work Nevertheless, intended or not, Ms Dalton was exposed to the offensive material while she went about her duties Mr O'Donnell should have been, but was not, sensitive to the fact that others, particularly women, may be exposed to the material in question and may be offended His reckless disregard constituted sexual harassment of Mr Dalton She has a right to expect -,-- that she would not be exposed to such humiliation while at work The Board makes a similar finding with regard to the complaint by Ms Dalton and Ms Howe about the retirement party held at the Lakeshore Hotel It was a work-related function which the grievors had a right to attend Mr Eriksen as Superintendent, ought to have reasonably known that having such a function in a "strip jointH and his having physical and personal contact with the stripper during the function would be offensive to some employees, particularly females His insensitivity to that resulted in the sexual harassment of Ms Dalton and Ms Howe Ms Howe's sexual harassment grievance There is no doubt based on the evidence, that like Ms Loach and Ms Dalton, Ms Howe was required to work --in an environment hostile and demeaning to women The evidence indicates that she was not only subject "- - \ C -".- - If '? \i 63 to the general comments directed at all females, but was the target of particular resentment because she was a classified correctional officer There was a feeling among certain ma 1 e s , both bargaining unit and management, that as a woman, she should not be in that position On the basis of the evidence, the Board finds that, Mr O'Donnell was one of the - persons who shared that view Ms Howe was also sexually harassed as a result of unwanted physical contact Mr Regan snapped her bra Mr Morris was in the habit of sneaking up and blowing in her ear Mr Parker poked Ms Howe in the back with a key and commented about her "buns" Mr Hurteau poked her in the back Lieutenant Cote rubbed his leg against her legs and made offensive comments Ms Howe-had to threaten physical violence and at least twice actually resorted to violent retaliation, in an attempt to stop this harassment The Board is convinced that all of this sexual harassment faced by Ms Howe were manifestations of the poisoned work environment which had been allowed to continue at the jail with the full knowledge, and often participation, of members of management The employer is responsible for that conduct and was in violation of article 27 On a careful review of the evidence, the Board cannot conclude that any employee or member of management was responsible for the offensive behaviour of inmates Wesley, Wilson and Gunner There is some second and third hand evidence suggesting that Mr Olsen may have fed information to inmates to the effect that Ms Howe was a woman of loose morals However, even if that was true, it is probable that it was part of a personal problem between Ms Howe and Mr Olsen _n It that Mr Olsen was appears -'- ----- --- - ( (, ---- ~ I " .i ~ 64 seeking retribution, after Ms Howe ended her extra-marital relationship with him -_.- The Board finds that Ms Howe's suggestion that Mr O'Donnell was cranking up inmates Wesley and Gunner is completely unfounded There is -- not an iota of evidence suggesting that Mr O'Donnell had anything to do with the offensive inmate conduct towards her Haileybury Jail is a very small place It is not surprising that word about Ms Howe's extra-marital affair with a co-worker got around In the absence of specific evidence it is not at all reasonable to speculate that a particular person or persons were cranking up inmates Moreover, the evidence is that some inmates do engage in offensive and vulgar behaviour, particularly towards female correctional officers, without any need for someone cranking them -- up Indeed, Ms Howe's own evidence was that after inmate Gunner's misbehaviour towards her, he did the same thing towards other female officers The Board notes that Ms Howe failed to file misconduct charges against the offending inmates in the face of clear breach of rules This would have encouraged the inmates to continue their misconduct with the confidence that they would be able to get away with it Ms Howe's narration of incidents relating to Mr O'Donnell, in our view also does not disclose sexual harassment, except in one important aspect As noted Mr O'Donnell's view at the time was that women were not r suitable or qualified to perform correctional duties He doubted their ability to perform correctional duties efficiently As a result he scrutinized Ms Howe's performance more closely He was reluctant to assign "real" correctional duties such as-'\\frisk searching" of inmates to I her, but saw her more suitable for mundane tasks such as laundry and- -~-- -------..- - ( (.. c? li " 65 cleaning Such attitudes constitute discrimination on the basis of sex, and also is properly within the definition of a poisoned work environment As the employer's own WDHP Guideline (supra p 59) recognizes "Excluding .- minorities and women from important activities within a workplace can also -- create a poisoned work environment by generating a climate where such - -- groups believe their contributions are not valued " The balance of Ms Howe's allegations do not disclose anything more than disagreements between a supervisor and employees in their day to day interaction The evidence is clear that generally Mr O'Donnell wielded his supervisory authority in dictatorial fashion His wish was his subordinates' command to be obeyed to the letter without question or comment Moreover, he resented the thought that anyone might dare to complain or challenge his conduct He felt that he was insulated from any finding of wrong-doing However, the evidence is tha t Mr O'Donnell's authoritarian exercise of management powers was not confined to females As Ms Dalton noted in her letter dated March 30, 1994 to Superintendent Hamel, (supra p 28) male officers also felt harassed by him As she put it, Mr O'Donnell's "on-going harassment (tha t) is obvious to all staff" Mr O'Donnell, the evidence suggests, did not always follow the policy On several instances, he shirked his responsibilities His behaviour was clearly inappropriate and not professional However, that conduct did not constitute sexual harassment of Ms Howe or any other woman It was simply a case of poor and inappropriate work performance by a supervisory member of staff -.- -----'------- - ( ( .---+ ,. " 66 Ms Loach's grievance alleging reprisals The collective agreement provides in article 27 10 2 that "Every employee covered by this Collective Agreement has a right to be free from, (b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance, where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the employee " Ms Loach testified at length about how her relationship with co- workers changed after she had filed her WDHP complaint Some of the males were no longer friendly or sociable with her As she put it, there was a "freeze out" attitude towards her While the impact of such an environment on a complainant is understandable, in the absence of any evidence that management was somehow responsf5le for such a change of attitude, article 27 10 2(b) would not be violated Ms Loach's allegations of reprisal, may be divided into three categories (1 ) that her hours of work were reduced as a reprisal for her rebuking of Mr Ericksen's sexual comments and invitations, (2) that Superintendent Hamel retaliated against her because she filed a WDHP complaint against him, by failing to consider her application for a casual correctional officer position, and (3) that the employer subjected Ms Loach to unreasonable and unwarranted criticism Each allegation will be dealt with in turn Ms Loach's hours of work It is the union's position that at the time Ms Loach was hired Mr Ericksen "guaranteed" her at least 17 hours per week The Board does accept that Mr Ericksen gave her an assurance that she would have at least 17 hours a week However, the Board is not prepared to accept, in the -. -.--- ( (;,,- r.: 67 absence of some formal undertaking, that it was an absolute and indefinite guarantee in the sense that Ms Loach was assured of 17 hours a week regardless of any future change in the employer's operational requirements or circumstances In the absence evidence as to any specific language used by Mr Ericksen constituting such an unusual guarantee, the Board sees Mr -- Ericksen's assurance merely as an estimate of the number of hours that the employer intended at the time to make available to Ms Loach A "reprisal", by definition must involve a mensrea, i e a subjective intention to retaliate Therefore the issue is whether the reduction of Ms Loach's hours was the result of a motivation on the part of the employer to retaliate and punish her because she had rejected Mr Ericksen's advances, or whether it was the result of a decision taken for- business reasons The evidence discloses that when Ms Loach started she was the only casual cook Considering the 40 hours per week regularly performed by the full-time cook and the 32 hours per week regularly performed by the regular part-time cook, that left 17 hours to be performed by the casual cook to fulfill the employer's needs at the time Ms Loach would get hours over and above 17 hours per week only in the event one of the other cooks was absent due to vacation, illness etc This evidence is consistent with Superintendent Ericksen's promise of at least 17 hours per week to Ms Loach The evidence indicates that in January 1992, the employer hired a second casual cook However, despite the second casual cook Ms Loach continued to receive at least 17 hours per week until November/December-- -- '---..-- ---~---~-- - ----- ( ( --- ~ - , '" " ~ 68 1993, a period of almost two years starting in about January 1994 however, her hours declined to a point where she was doing no more than 8 hours per week Ms Loach claims that the hiring of the second casual cook and the subsequent "repudiation of the agreement to provide at least 17 hours per weekH were motivated by a desire to retaliate against Ms Loach -..- because she rejected Mr Ericksen's advances and filed a WDHP complaint and a grievance Mr Kurt Arthur, who became Office Manager of the Haileybury Jail in April 1990, testified about the circumstances under which the second casual cook was hired His evidence was t~at during 1990 he undertook a review of the usage of unclassified staff at the jail with a view to increasing efficiency and particularly to reduce overtime costs Soon it became evident that the kitchen area needed to be addressed in that regard He testified about his persistent attempts, supported by Superintendent Ericksen, to either convert the regular 32 hour cook position held by Ms Colleen Belanger into a full-time classified position, or to create an additional regular part-time position out of the casual cook hours He felt that such a step was supportable considering the number of hours of work available and the jail's requirements However, the Regional Office did not approve his proposals Mr Arthur testified that after those attempts failed, in 1991 he recommended to Superintendent Ericksen that a second casual cook be hired He felt that such a move would reduce the overtime paid to the existing casual cook, Mr Loach, and also give more flexibility in scheduling Mr Arthur testified that when Ms Beauchamp was hired as the second casual -cook in February 1992, the intention was to regularly assign to Ms Loach - - ( ( -~ - .-. - " 69 17 hours per week and split any casual hours beyond that between Ms Loach and Ms Beauchamp This was done until November of 1993, when Ms Beauchamp visited him with the local union president and presented a ~.~-- grievance alleging that the manner in which the employer guaranteed the regularly available casual hours to one of two casual employees constituted differential treatment Ms Beauchamp and the union president pointed out that since the 17 regularly available casual hours were pre-scheduled for Ms Loach, Ms Beauchamp had to depend on replacement hours for absent regular employees If no regular employee fell ill or took vacation, Ms Beauchamp would not get any hours They requested that the employer cease pre-scheduling Ms Loach and equally divide all casual hours in the kitchen between the two casuals Mr Arthur promised to consider their request -.. Subsequently, he discussed the grievance with Mr Hamel, who by then had taken over as Superintendent since "differential treatmentH had been I I alleged, Mr Arthur also consulted Ms Monica Campbell of the Employment I Equity Branch and a Ms Bradburn of the Independent Investigations Unit I These discussions confirmed his opinion that preferential sCheduling of one casual employee to the detriment of the other was a violation He therefore recommended to Mr Hamel that casual hours be equally distributed between Ms Loach and Ms Beauchamp Mr Hamel testified also that he found it highly unusual that a casual employee was regularly prescheduled for a certain number of hours He agreed that such a situation was inappropriate Ms Beauchamp's grievance was resolved on the basis of the following reply to her grievance dated November 22, 1993 Re Resolution of Stage I Grievance On November 17, 1993 we met in my oiiice to resolve your grievance As an employee representative, Mr Hatton was present with you - -- .. (. ('\" ~ - .. : 70 Your grievance as stated to me is that you object to the existing shift schedule being followed in the kitchen on I the contention that there is preferential scheduling being practised by pre-scheduling one unclassified cook I _.-"- As a settlement to this grievance, you have requested I that management ensure that fair and equitable distribution of all -unclassified kitchen hours is followed This memorandum will serve to confirm our resolution of this grievance Commencing with the staff duty roster of December 13, 1993, (attached) the available unclassified hours in the kitchen will be balanced at the start of each week As further hours become available, management will make reasonable efforts to ensure that the hours be distributed evenly between the two unclassified cooks providing this distribution meets with the following agreed to criteria - overtime will be avoided -.. Reasonable efforts will be made to contact the cooks when hours become available When unavoidable, one cook may work more hours than the other cook and depending on the reasons for this variance, ie Booking off sick, not available etc hours will be balanced with estimate of time lost due to the above mentioned reasons I trust that the above written reply meets with the spirit of our agreement and I thank you for your willingness to cooperate during this process .-. Mr Arthur testified that subsequently, he explained to Ms Loach that henceforth there will be equalization of casual hours between the two casual cooks and that Ms Loach would no longer be pre-scheduled for 17 hours He did not tell her that this re'sul ted from a grievance by Ms Beauchamp, because he-did not wish to increase the tension between Ms - ~ ( ( -.- . .. -~.- - - , 71 Loach and Ms Beauchamp Mr Arthur testified that he was extremely surprised when the same local union president who had supported Ms Beauchamp's grievance subsequently informed him that a grievance would be ~- filed on behalf of Ms Loach, grieving the decision--Eo cancel the practice of pre-scheduling Ms Loach A grievance was in fact filed and was still outstanding at the time of this hearing The union argued that the hiring of the second casual cook was unnecessary and that a second casual cook would not have resulted in reduced overtime costs It was also argued that the employer's attempt to reduce overtime costs in the kitchen did not make sense when it continued to pay significant overtime to correctional officers The union mayor may -,- not be correct in making those assertions However, the issue is not whether the employer's decisions made good business sense The issue is whether it can be said that the decisions were so irrational that a reasonable inference can be made that they were motivated by a desire to adversely affect Ms Loach's hours and her income On the basis of all of the evidence such an inference is not reasonable The Board found Mr Arthur to be a very credible witness There was no evidence suggesting that he harboured any discriminatory views against women in general or that he had any personal grudge against Ms Loach in particular Indeed, the Board heard complementary testimony about him from several f.ema 1 e employees His testimony was that it was his idea to hire a second casual cook and that he believed that a second casual cook would give the employer more flexibility and cut down on overtime costs Besides, the evidence is that the hr~ing of Ms Beauchamp by itself -- did not adversely impact on Ms Loach's hours Despite the second cook, -...,.., - _.~ ( (, .. <:. - -; 72 she continued to be pre-scheduled for the regularly available 17 hours In the two years before Ms Beauchamp was hired, Ms Loach worked a total of 1219 hours (1990) and 1271 hours (1991) Ms Beauchamp was hired in February 1992 In 1992 Ms Loach totalled 1281 hours, while in 11 months Ms Beauchamp had 759 hours Thus despite Ms Beauchamp's presence during ,- 11 of the 12 months in 1992, Ms Loach had more hours than in the two previous years when she was the only casual cook In 1993 Ms Loach had 1159 hours, only slightly down from the previous years The significant decrease in her hours came in 1994 when she did only 820 hours, while Ms Beauchamp did 1,110 hours It is to be noted that Mr Ericksen left the Haileybury Jail in October 1992 Ms Loach continued to receive her 17 hours per week until December 1993, more than a full year after his departure The evidence does not support the contention that the decision to discontinue the practice of pre-scheduling Ms Loach for the regularly available 17 casual hours and in favour of a policy of equal distribution of all available hours between Ms Loach and Ms Beauchamp was made as a reprisal against Ms Loach On the contrary, the evidence is clear and uncontradicted that the decision was a direct response to Ms Beauchamp's grievance Whether or not the terms of settlement of Ms Beauchamp's grievance resulted in a breach of Ms Loach's collective agreement rights as alleged in her grievance, it was not motivated by a desire to retaliate against Ms Loach because she challenged Mr Ericksen's conduct and filed a WDHP complaint Mr Ericksen had long gone by that time and it was Mr Arthur, in his personnel capacity who initiated the changes which adversely affected Ms Loach -._) \ ~._- I -~-~ .. - . j 73 While it is true that in 1994 Ms Loach's hours declined by over 300 I hours from the previous year, the evidence establishes a credib1e explanation for that Due to illness, Ms Loach worked_only 7 hours in a two week pay period in June In three two-week pay periods in December 1994 she did 12, o and 0 hours respectively, again due to illness. In those ~ay periods, the hours which MS. Leach would have normally performed were added on to MS. Beauchamp. Thus in the four pay periods in question, Ms. Beauchamp did 69.5, 57.75, 45 and 70 hours, while Ms. Loach had 7, 12, o and 0 hours. That explains why Ms. Loaoh's hours for 1994 went down to 820, while Ms. aeauchamp ended up with 1,110 hours -# On the basis of the foregoing evidence the Board cannot find that the employer resorted to reprisals against Ms. Loaeh either by hiring a second casual cook or by adversely affecting her hours. I \ Ms. ~oach's ap~lication for a c~sual correctional offieer position I The Board next turns to consider the allegation that in 1995 Mg. Loach was denied an opportunity for an interview and was not considered for one of two positions of casua1 correctional officer, and that this was a reprisal taken against Ms. Loach because she had filed her WDHP complaint against Superintendent Hamel The evidence indicates that in 1994, Ms Loach applied for an unclassified (casual) correctional officer position but was not successful However, it is common ground that she was qualified for the position, in the sense that she met the requirements inclUding the completion of the Flanigan Industrial Test. For that competition Ms Loach was interviewed by the selection panel, which awarded the j~b$ to applicants, who had no 96~19c~Slv000~8c 01 a)feFh?l..ress l Q () l'E?lU l N WOel.::l Wd6c v0 1.66T-v0-Tl 90 d --- .J -- (( (( - - , - 74 prior experience at Haileybury Jail Ms Loach's grievance with regard to that competition was outstanding at the time of this hearing Subsequently, in June of 1995 it was determined by the employer that there was an urgent need to hire two casual correctional officers and a selection process was launched One of the main reasons for this step, was the need for more female officers, because the jail was left only with one female officer It was not the practice to advertise or post casual correctional officer positions Instead the employer selected candidates for interviews from applications on file Nevertheless, Ms Loach became aware of the vacancies and wrote a letter to Mr Hamel on June 14, 1995 indicating her interest and seeking an opportunity for an interview However, she did not receive an interview this time, but received a memorandum dated June 20, 1995 from Mr Hamel stating in part "In response to your request for a re- interview for an unclassified CO position, we did consider you in the decision to fill the position We subsequently chose two other candidates" The evidence indicates that only three candidates were interviewed and that the two successful candidates were women, neither of whom had any prior experience in the corrections field Under cross-examination Mr Hamel's only explanation for not granting an interview in 1995 despite the fact that she met the requirements for the position was that he did not believe it was necessary to re-interview her He insisted however that she was considered for the position, although two other candidates were selected Mr Hamel--'denied that he had been unfair to Ms Loach or that he had done anything wrong- He stood by his decision -~ - ( <--- ;; 75 and reasoned that giving Ms Loach a re-interview would ~ave been "unfair to outside applicants" He admitted that he was angry about Ms Loach's WDHP complaint against him, but stated that he understood that it was her right to file a complaint He denied that his decision to not call Ms Loach for an interview was in retaliation Contrary to Mr Hamel's position, the employer in its submissions acknowledged as follows When Ms Loach applied for a casual CO position in 1995, she was not offered an interview The employer acknowledges that this was unfair and that Ms Loach missed a genuine opportunity to compete in this process Ms Loach clearly performed well enough on the first competition in Dec 1994- that she should have been able -- to at 'least get an interview in 1995 Mr --Hamel testified that it was his decision that the new panel did not need to interview Ms- Loach given that she was not successful in Dec 1994 However, the employer went on to submit It is the employer's submission Mr Hamel's decision was unfair, however it was not motivated by bad faith or an attempt to seek revenge on Ms Loach for grieving When confronted on this issue in cross examination, Mr Hamel was forthright in acknowledging his frustration with Ms Loach having filed a WDHP against him, but still stated clearly the basis for his decision It is the employer's view that Mr Hamel, honestly, but mistakenly believed that she did not deserve another interview This 1995 competition is the subject of a grievance As already noted, to constitute a reprisal, an element of "mensrea" or a subjective intention must be found to exist It would indeed be rare for someone to express such an intention It must usually be established , by an inference drawn on a balance of probabilities based on all of the surrounding evidence -- (, c -~-- 76 Having carefully considered all of the evidence, the Board is driven to the conclusion that Mr Hamel was at least in part motivated by a desire to retaliate against Ms Loach He conceded that he was angry about Ms Loach's WDHP complaint Indeed his demeanor on the stand reflected that - anger The evidence is that, had Ms Loach been awarded one of the casual .---- co positions, she would have worked significantly more hours during the summer and fall of 1995, as compared to the hours she did in her casual cook position Financially she would have been much better off Ms Loach was qualified for the job and had performed reasonably well at the previous competition, that a credible explanation must exist for her not at least receiving a further interview None has been offered except Mr Hamel's statement that he did not believe that it was necessary to re-interview Ms Loach He did not-explain why he be-lieved so, when all of the facts strongly supported her being called for an interview --- Of significance is Mr Hamel's assertion in his letter to Ms Loach and during his testimony that Ms Loach was "considered" for the positions in 1995 There is no evidence whatsoever to support that assertion The evidence is that the 1995 selection panel consisted of Lieutenant Cote and Lieutenant Thompson, neither of whom had any role in the selection process in 1994 There is no evidence to suggest that either of them had any knowledge about Ms Loach's performance at the 1994 interview or that panel's findings about Ms Loach's abilities and qualifications If Cote and Thompson "considered" Ms Loach in the 1995 selection process, evidence would have been offered to show how they did so None was offered In the face of this evidence inevitable conclusion is tha t Ms Loach was not considered in any meaningful way for the positions that came up in 1995 -.- '-.- 0 (~ ( ,.." --.- " 77 ) The-decision by Mr Hamel not to interview Ms Loach did not make any business sense None of the 3 candidates chosen for interviews had prior experience at all in the corrections field While Ms Loach had not worked ._-- in a correctional capacity, through her employment as a cook at the Haileybury Jail, she had training and experience in several areas which were directly relevant to the position of casual correctional officer Mr Hamel under cross-examination conceded that Ms Loach had familiarity with the policies and procedures in effect at the Jail She had performed well in the kitchen She had received first aid and CPR training She had security training, because she was res~onsible for inmates assigned to the kitchen In that capacity she had experience in the care and custody of inmates Ms Loach had received WDHP training and hostage training 'The outside candidates interviewed had none of that training or experience Those hired had to be trained in each of these areas, whereas Ms Loach already had that training In view of the complete irrationality and unfairness of Mr Hamel's decision, combined with the absence of any credible explanation as to why such a decision was taken, the Board concludes that the only reasonable inference is that Mr Hamel was motivated by a desire to retaliate against Ms Loach Thereby, Mr Hamel contravened article 27 10 2(b) of the collective agreement Criticism levelled at Ms Loach It was argued on behalf of Ms Loach that she was subjected to unreasonably harsh criticism and that in so doing the employer was motivated by a desire to retaliate against her because she had filed her WDHP complaint -~ I ( c- .----- -- ,: ';:1. 78 -- The evidence does not substantiate the union's allegation in this regard It is conceded that Ms Loach made an error in placing a bread order which was part of her duties The Board agrees that the error was relatively minor However, that does not mean that the employer was not entitled to bring the error to the employee's attention The evidence indicates that that is what Mr Arthur did \ He pointed out the error to Ms Loach and when she explained that she had difficulty with making accurate orders, because she suffered from dyslexia, he offered her assistance There is no evidence that Mr Arthur or anyone else made a big issue of it beyond that Similarly, when a rumour came to the employer's attention that Ms Loach was coming to work "wired" with a tape recorder, ~J she was told about it 'No further action was taken against Ms Loach with regard to any of these incidents She was not disciplined and no record was made of the incidents The Board does not disbelieve Ms Loach when she testified that she felt 1ntimidated when questioned about her conduct Considering the sexual harassment she had endured at work over a period of time, the resentment I on the part of certain males about her filing of a WDHP conduct expressed I through a show of "coldness", and the emotional state she was in, it is understandable However, that does not convert a routine exercise of day to day supervisory functions by Mr Arthur into a reprisal The evidence does not indicate that Mr Arthur or any other supervisor treated these incidents as anything more than what they actually were, namely, minor incidents There is nothing to justify an inference that there was any intention to intimidate Ms Loach The Board finds that the allegation of reprisal in relation to these incidents is not established -- .. ( 6, ;- , .. ~ ~/-, " = 79 - Ms Howe's discrimination grievance In addition to her grievance filed under article 27 alleging sexual harassment, Ms Howe has filed a second grievance alleging a violation of article A, namely discrimination on the basis of sex On an examination of the evidence, the Board finds that some of the alleged incidents of discrimination occurred prior to June 15, 1990 when article A was incorporated in the collective agreement While the Board received evidence about those events and found it useful to understand the atmosphere and culture that existed at the jail, no violations may be founded upon those incidents .' ~ q However, the Board finds that in certain other aspects, Ms Howe was adversely affected, through discriminatory practices followed by members of management, and that this continued beyond June 15, 1990 The Board has already noted its conclusion that Lieutenant O'Donnell harboured a belief that women were not suited for correctional duties This view was shared by a number of other male officers Particularly significant is the evidence that an unwritten policy of not scheduling more than one female officer on a shift was followed There was no justification or authority for such a policy There is evidence that at least on one occasion, Mr O'Donnell instructed a shift I C who had to call in an additional officer to work, that he should not call in a female In that no legitimate explanation was offered for preferring males over females, the only conclusion to be drawn is that this is a manifestation of the prejudicial attitude of Mr O'Donnell with regard to the role of women in corrections -- -_._-- /. I - .- " - ~ co - 80 The eoard is satisfied that as a result of this attitude of m<<les, particUlarly manaqement personnel l~ke Mr O'Donnell, WOmen correctional officers were assigned to less significant dutie5 and were denied the more -- challenging and rewarding experienoes. The evidence establishes that Ms. Howe was assigned to clean a washroom area and that while she worked certain male officers watched. One commented that it was "women's work" On another occasion, Ms. Howe was denied the opportunity to gain valuable experience in the capacity of acting shift I.C.. The 'Soard is satisfied that the primary basis for this was the fact that Ms. Howe was female. While the union only established isolated acts of discrimination specifically directed at Ms. Howe, it . very probable, given the J.5 prejudicial views held oy certain males and Mr. O'Donnell in particular, -- that 1'4$ adv~rsely impacted specific Howe was l.l.pon on more than the occasions proved. The "one woman per shift" policy and the denial of significant and responsible assignments would have denied Ms Howe exposure to the full range of oorrectional officer duties The denial of assignments as acting shift l.e would haVe denied her valuable experience !~~~ WhiCh she would need to progress up the ranks into supervisory positions Given that not all supervisoxs and lieutenants praetised discriminatory practices, it is not possible to determine the exaet extent of discrimination suffered by Ms Howe Neverthe~ess, it does not deter the Board from finding that she was discriminated against on the basis of sex and that article A was contravened Some General Observations -..-, Prior to turning to the issue of remedies, the Board reiterates that what it has for determination are 5 distinct individual grievances filed S0 d 96Zt9c(9tv000~8c OL ;,l)fe n-e u-e s.~ a fI p~w ~ N ~JOd.:l Wd8c v0 ~66t-v0-n ~ ( ( -,-~- ~ - , 0 81 by 3 employees Ms Loach grieved sexual harassment and reprisals Ms Howe grieved sexual harassment and discrimination on the basis of sex The only grievance filed by Ms Dalton alleged sexual harassment While upon the agreement of the parties the Board heard all five of these grievances together, the nature of the grievances did not change --- The collective agreement draws a clear distinction between individual grievances and union grievances (See article 27 12 1) The union did not at any time file a union grievance Nor did it request that these I individual grievances be converted into a union grievance or be treated as I such However, throughout the presentation of the case, the union repeatedly referred to sexual harassment and discrimination of women at the Haileybury Jail, without drawing any distinction between the grievors and other women, or between the three grievors Specifically, evidence was adduced about alleged incidents which were not properly within the grievance filed by Ms Dalton Ms Dalton's only grievance was that alleging sexual harassment However, she testified about discriminatory treatment in relation to her hours of work, training and educational opportunities etc and about reprisals The Board agrees with the employer's position that it has no jurisdiction to adjudicate upon those allegations when Ms Dalton had not grieved anything other than sexual harassment Sexual harassment is a particular type of discrimination based on sex The collective agreement thus contains specific provisions relating to sexual harassment While sexual harassment is a subset of discrimination based on sex, the reverse is not true The grievance alleging the narrow offence of sexual harassment does not encompass acts of discrimination which are outside that category Similarly, the collective agreemen~contains a specific article prohibiting reprisals - -- ( G,-- :'.., ". '; ~ 82 Ms Loach grieved that reprisals were taken against her Ms Dalton did not do so Her only grievance was an allegation that she was sexually harassed In the circumstances, the Board has determined that it ought not ---- deal with Ms Dalton's allegations of discrimination and reprisals, which are outside her sexual harassment grievance The union sought broad systemic remedies on behalf of the grievors The employer conceded that the Board possessed the power to order systemic remedies as a general matter However, it was argued that systemic remedies ought not be ordered in the absence of a union or policy grievance The employer's position was that it was inappropriate to grant .. systemic remedies to remedy individual grievances The Board does not accept any rule that systemic, or for that matter any other type of remedy, must necessarily be confined to a particular category of grievance In each case, whether policy or individual grievance, the Board must ask itself, what is required to remedy the particular grievance before it Whatever is so required, the Board has jurisdiction to grant If the Board determines that a systemic type of remedy is required to remedy a grievance filed by an individual employee, it ought to grant that remedy The Board's jurisdiction is to remedy the violation found If remedying an individual grievance requires a systemic remedy it is within the Board's jurisdiction to order such remedy The parties also disagreed about the Board's jurisdiction to order aggravated damages and compensation for pain and suffering The Board is of the view that the nature of the violations found against the employer do not warrant a consideration of aggravated damages even if the Board does -. ..~. - (' ( ~ - '} - 83 possess jurisdiction to award such damages Therefore the Board does not determine whether it has that jurisdiction The .employer submitted that the Board had no jurisdiction to award damages for pain and suffering Reliance was placed on an obiter statement - of this Board in Re Pranas, 1243/89 (Dissanayake) That case involved a claim by the grievor for the costs of operating his own vehicle In addition, he claimed damages for pain and suffering, alleging that the employer had falsely informed Revenue Canada that he did not require the use of his truck as a condition of employment The Board held that there was no direct evidence to support this allegation but went on to state that "In any event, assuming the allegation to be true, the collective agreement and the Act do not confer upon this Board Qny jurisdiction to grant the relief requested H I It is to be noted that Re Pranas was not a human rights or discrimination case In human rights and discrimination cases, more often than not, no direct monetary losses to the victim can be established The violation consists of a deprivation of a right to be not subjected to discrimination and sexual harassment The usual approach in these cases, for example under Human Rights legislation, is to award general damages as compensation for the deprivation of the right In quantifying the amount of damages, the general approach is to attempt "to restore as best as money can do, a party whose rights have been violated, to the same position as though his rights had been preserved H See, Phalen v Solicitor General of Canada (1981) 2 C H R R D/433 at 434 (Cdn Human Rights Tribunal) ----,- - ( c.., --.-.- , ._-~ - j'." -' , , 84 The Ontario Human Rights Code in S 41(1) sets out the powers of a I - Board of Inquiry to restore the complainant to the position she would have I I been in had she not suffered discrimination The section reads 41 (1) Where the board of inquiry, after a hearing, finds I that a right of the complainant under Part 1 has been infringed and that the infringement is a contravention of -- section 9 by a party to the proceeding, the board may, by I order, I (a) direct the party to do anything that, in the opinion of the board, the party ought to do to I achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and I (b) direct the party to make restitution including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in willfully or recklessly, - monetary compensation may include an award, not exceeding $ 10,000, f~r mental anguish I It is the contention of the employer that while the parties when enacting article A 1 1, intended to incorporate the substantive law under - :i; the Ontario Human Rights Code, did not intend to import the remedial provisions of the Code such as section 41 It is thus argued that no reliance can be placed on the Code as a source for remedial jurisdiction It is the employer's position that the Board has no jurisdiction to award damages for pain and suffering under either the collective agreement or the '.if) Crown Employees Collective Bargaining Act In our view, when the parties enacted article A 1 1 making specific ::7,. reference to the Ontario Human Rights Code, the intention was to extend to the employees covered by the collective agreement, a mechanism for resolving their discrimination complaints without the need for pursuing - ---- -- - ( c -.-- - c i ~ ~ 85 proceedings under the Code These employees always had access to the procedures under the Code Therefore, the only reason why the parties would have seen it necessary to enact a parallel provision in the \1 collective agreement must have been to obviate the necessity of proceeding under the Code This intention will not be realized if the redress - available under the collective agreement is significantly inferior to those .- under the Code That would force employees to pursue their Code rights rather than Article A 1 1 or to proceed under both The parties must, therefore, have intended that Article A 1 1 to be an alternative procedure under which an employee can obtain the full redress, he or she would otherwise have had under the Code The parties must have intended that ~~ employees would be able to obtain similar remedies as under the Code -- Quite apart from that, the Board is of the view that its remedial authority under section 19(1) ~to decide the matterH is so broad that where a violation of the collective agreement is found, it has the jurisdiction to award whatever is required to remedy the particular violation In Re Pranas ( supra) the Board's observation was that it did not have the authority to grant the particular relief in that case There the alleged pain and suffering did not arise out of a violation of the collective agreement The allegation was that the pain and SUffering was a result of the employer providing certain inaccurate information~to Revenue Canada The collective agreement obviously does not govern that conduct Therefore, the Board had no jurisdiction to provide any relief in that regard On the other hand, as already observed, in human rights violations, particularly sexual harassment, very often the adverse impact on the victim -- - --.- - - 86 is non-pecuniary The thrust of the impugned conduct is the humiliation or degrading of the victim That impact is often far more devastating than any pecuniary or tangible losses resulting from discrimination Therefore, ._- .in the Board's view, where pain and suffering is found, the Board's mandate to fully ra~edy a violation would not be fulfilled if that aspect of the , violation is left without redress For those reasons, ~~e Board finds that - --- in appropriate cases where the violation of the collective agreement has resulted in pain and suffering, the Board does have the authority to provide redress, as part of its mandate to fully remedy the violation Remedies The Board has determined that in order to fully remedy the violations found with regard to these three grievors, merely c~~ensating each or them for the losses suffered would not be adequate In order to eradicate the poisoned environment which led to the violations, some systemic remedies are required Without such remedies, there is a prObability that the grievors would continue to be exposed to the same environ.'tl.ent and culture that e~isted at Haileybury Jail, which resulted in the violations Recognizing this need, and the particular evidence in this case, the Board directs as follo'Ns. (a) The employer is directed to create a Joint Management - Union Assessment Team, ("The Team") including in it local management and staff from the jail itself, with a mandate to review and determine the needs in order to eliminate sexual harassment and discrimination on the basis of sex at Haileybury Jail (b) Upon the completion of the review, the team shall create an action- plan, including goals and timetables for the steps to be taken with -~ L0 d 96(19c[91p000L8c 01 ;; ieAeU'E?ss 1 a II leiJJ1N WO~=l Wd6c v0 1..66~-v0-n - .s - Il_ 87 - a view to elimination of sexual harassment and discrimination on the basi$ of sex (~The Plan"\ This action plan must be completed within 6 months of the release of this decision, unless agreed to in wri ting by the employer and the union for an extension This Board remains seized in th@ ---- event there are any problems with respect to i~plementation of the plan. --- (0) Upon request, the employer shall make ava.1..i.aole t.o Qny management or bargainiw} unit member, counselling with regard to WDHP or stress management. This counselling shall be made availablA in Hail~ybury at the employer's expense (d) The employer shall provide traininq to its management staff a~ the Haileybury Jail, on the legal obli9ations with regard to sexual harassment and discrimination on the basis of sex, both substantive and 1 proceciural This training should be made mandatory for every member of management at the jail and should be completed within sig ~onth5 of the date of ~elease of this decision. Every individual who joins the management of the jail in the period of 2 years from the date of this decision must be provided with this training within the first 3 months of his assuming management responsibilities (e) The employer is directed to develop an affirmative action - program for the hiring of 'Women as correctional officers and as shift supervisors, when vacancies occur in these positions The goal or this program should be to make the proportion of women at Haileybury Jail in these positions, e~~al to the proportion of women in the same positions in the Ministry, as soon as possible The ~~f,irmative action pro9ram should be prepared and filed with this Board within six months of the dat~ of - () l'ilUllN WOCl~ Wd0~ \70 t,551-1?\3-11 a'1-eneuesslQ 810 d 96~1gc~91VI000~8Z 01 - v c. ~ _..... - --- - - - 88 release of this decision The Board remains seized if there are any problems implementing the plan ---- The union sought orders directing the employer to dismiss Mr Eriksen - and Mr O'Donnell from employment In view of the findings of this Board I - I we find such orders to be unwarranted and inappropriate Mr Eriksen's misconduct, particularly with regard to Ms Loach, was very serious He I has not given any indication of remorse either However, he has been I I removed from Haileybury Jail and the Board is satisfied that there is little or no chance that he would ever be in a position of authority over , any of the three grievors at Haileybury Jail In the circumstances, in order to fully redress the gri~vances of these grievors, no further action with regard to Mr Eriksen is required ,- Mr O'Donnell's conduct was less serious but still cannot be trivialized The source of all his problems, in the Board's view, was his belief at the time that women were unsuited to correctional work He appeared before the Board We found him to be a generally credible and honest person The Board is satisfied with Mr O'Donnell's explanation that at the time of his actions he had not received WDHP training and that he has since changed his attitudes The Board observed a sense of sincere remorse on his part The Board is satisfied that Mr O'Donnell is fully aware that he would be jeopardizing his career, if not his employment itself, should he fail to mend his attitudes towards females in corrections No further action with regard to Mr O'Donnell is required at this time to remedy any of the grievances before the Board '- - --~-- .- .. -. .. - -.~- =- - 89 Individual remedies for the greivors In fashioning specific remedies for each of the grievors, the Board -- has taken into acco~nt the systemic remedies it has directed In coming , to its conclusions, the Board has considered the medical evidence tendered -- .- as well as the grievors' own testimony. In light of all of the facts and the legal Submissions of counsel the Board directs as follows: Ms Loach The Board has concluded that Ms Loach was denied an interview for a position of casual correctional Officer position as a reprisal for her filing her WOHP complaint against Mr Hamel. The' evidence is that Ms. Loach had the qualifications tor the position, although that -would not have -- guaranteed the position to her had she been considered. It was the employer's violation that caused that uncertainty since two years have passed since the infraction, there is no perfect way of remedying the breach However, if the Board's remedy is to be tilted in favour of one of the parties, it must be the innocent party and not the party guilty of the contravention. In all of the circumstances the Board directs that the employer forthwith appoint Ms Loach to a casual correctional officer position at _. the Haileybury Jail or at an institution outside Haileybury This appointment shall be on secondment basis for a period of not less than one year with a guarantee of not less than 25 hours a week It the appointment is to a position outside Haileybury, Ms Loach shall be entitled to all reasonable relocation costs ---, -- -_. 60 d 96~Tgc~9TP000L8c 01 ~'>lQAeuQss~a il t QUJ ~ N WOCl=l Wd0~ 170 L66~-t;>0-n ---- ~ ~ ( f - -- -.- _,." I I " "i.;": , .. " ( = 90 In addition, the Board directs as follows (a) Ms Loach shall be reimbursed for all earnings lost due to absence from work due to stress related illness during the period of her - employment to the date of this decision --'._- -- I (b) Interest shall be paid on the above amounts based on the I average annual prime rate for each applicable year (c) Ms Loach shall be paid the sum of five thousand dollars ($ 5,000 00) as compensation for pain and suffering ,- - ;; (d) ~ -The Board understands that Ms Loach's claim with regard to Grievance Settlement Board hearing days has been resolved Should this not be the case, the Board remains seized to issue a further decIsion in that regard upon request Ms Dalton (a) Ms Dalton shall be compensated for any loss of earnings resulting from stress related illness, to the date of this decision (b) Interest shall be paid on the above, calculated on the basis of the average annual prime rate for each applicable year (c) Ms Dalton shall be paid the sum of five hundred ($ 500 00) dollars as compensation for pain and suffering as a result of the sexual harassment and the poisoned work environment she was made to endure --_J ._- --- -- . ~ " " ~ 91 ~ Ms Howe The evidence indicates that Ms Howe is not medioally fit to return to work in a correctional capacity. While there is no doubt that Ms Howe -- has had many other stressors it'\. her life, the Board is satisfied. tnat-the triggering e~ent which caused Ms Howe to go on disability in November 1992 was the poisoned work environment The employer must take the "thin skulled plaintiff" as it finds her. She was coping with her ot.her stressors Tne Board is satisfied that it was the sexual harassment and the poisoned environment. that "pushed her over the edge" and caused her to be away from work In the circumstances, the employer is directed to place Ms Howe in a fUll-time pOSition within the OPS_.in the Tri-Town area, (or if Ms. Howe ilgrees, outside the '1'ri-Town area) forwhieh MS. Howe is qualified, if and when she is medically :fit to re't.\.:u:n to work__ If the apP';lintment is outside the Tr1-Town area, Ms. Howe is entitled to reasonable relocation costs In addition, the Board directs as follows: (a) Ms Howe shall be paid the difference between :t..TD payments received and will receive, and the wages she would have received had she been able to continue working at Haileybury ~ail, for the period beginning in November 1992 to the time 5he is provided work in a position pursuant to this decision - (b) Interest should be paid on the above amounts past due, calculated on the basis of the average annual printe rate for each applicable year. , - --- 0T d 96[r9c[9rp000~8~ 01 a>1'i'Fi'E'u'E'ss~a It t'E'WTN WOC!=1 Wd't~ t'0 L.6b1:-t:>0-H - .=~,--..-..~ n .. .. '" - '\ ',,- ~_. ~ \.: i v l."l~'\ . ,- 92 (c) She shall be paid the s~~~of two thousand dollars ($ 2,000 00) as compensation for pain and s~ffering. The Board remains seized in the event the parties encounter any difficulties with re9a~~ to remedies provided in this decision Dated this 5thDay of NoVember, 1997 at Hamilton, Ontario /~- · .Lc ~ = .' Yak.<d - Vice-Chairperson d;.: __ , . ~ - - -. "Concumng- -- - - T Browes-Bupn - Member "'Concurring" M. Milich Member I I a>1-eA-eu-eSS1Q r1 {-eWiN WOH:l l.JdT[ t:'0 ~66t-t:'0-n~ 1: d 96[1:9c[9W000c.8c 01 '