HomeMy WebLinkAbout1992-3203.Moore.96-11-08
~;'\.
~
,~ OWTARIO EMPLOYES DE LA COURONNE
~ CROWN EMPLOYEES DE L'OWTARIO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT ,
REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 328-1388
180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSfMfLE/TELECOPfE (416) 326-1396
GSB # 3203/92
OPSEU # 93C194
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Moore)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Natural Resources)
Employer
BEFORE 1:3. Kirkwood Vice-Chairpersonc
FOR THE M. Gottheil
GRIEVOR Counsel
Caroline, Engelmann, Gottheil
Barristers & Solicitors
FOR THE A Rae
EMPLOYER Counsel
Filion, Wakely & Thorup
Barristers & Solicitors
HEARING August 31, 1993
May 3, 9, 16, 1994
June 20, 21, 1994
November 4, 21, 1994
April 3, 4, 5, 6, 11, 1995
July 5, 6, 1995
August 1, 2, 1995
september 11, 12, 19, 1995
November 13, 1995
December 5, 1995
January 15, 19, 1996
February 2, 1996
~ ~
?
j?
r~
Page 2
AWARD
Background
This matter came on for hearing on August 31, 1993
before a three person panel. During the Union's opening remarks
and submissions on several preliminary matters, the Union asked
the Board for a lengthy adjournment to allow the grievor to
continue with counselling to enable him to better face the issues
that would be presented in the hearing. The Employer did not
oppose the adjournment. As a result, the Registrar, with the
cooperation of the parties set the second date of hearing for May
2, 1994. The hearings continued before a three person board until
April 3, 1995, at which time, due to the resignation of one of the
board members, the parties agreed to the continuation of the
hearing before the Vice-chair The hearing ended on February 2,
1996, after 25 days of hearing
As this decision is lengthy, I wish to summarize the
basic positions of the parties in order that the evidence and the
decision is more easily read.
The grievor was a fisheries technician at the pettawawa
Fish Culture Station (hereinafter called the "hatchery") He had
been employed by the Ministry for approximately twenty-three years
prior to the summer of 1992 In August 1992, complaints were made
about the grievor's conduct by one of his peers, Mr. Lewis, and
several summer students, who had been working at the hatchery
during the summer of 1992. The complaints prompted an
investigation into the matter which led to the grievor's dismissal
on December 3, 1992 His dismissal was based on forty-one
allegations of sexual harassment found in the investigator's
report.
,...
!J..
.
-", c
Page 3
The grievor has not been at work since August 4, 1992,
when he started his short term sick leave.
On the first day of hearing, the parties attempted to
reach an agreed statement of facts based upon the allegations in
the investigator's report, the substance of which were not
disputed, but they were unable to do so. The Union submitted that
some of the explanations were not entirely truthful, and others
had to be placed in context to be properly appreciated.
On the second day of hear ing the grievor admitted to
seven of the allegations. The allegations that were admitted to
included descriptive commentary to students, their supervisor and
to Mr. Lewis about sexual acts and pornographic films that he had
seen, using vulgar and graphic language that went beyond the usual
four letter words, comments to one of the students about her
sexuality and sexual activity, statements that he made to other
staff that a female student was sleeping with the manager, and
allegations that that Mr. Lewis was a homosexual, which he said
was a joke, and statements the students and staff that when a
woman says "no she means yes", which he said was a joke.
After nine days of hearing, on May 4, 1994, the parties
reached an agreement in order that the complainants would not have
to be called to give evidence. The grievor admitted that the
allegations that he accepted in whole or in part were sufficient
to justify his dismissal, absent sufficient mitigating
circumstances. The grievor admitted that the investigator's
report accurately records the allegations against the grievor, and
correctly sets out his statements to the investigator The Union
further advised the Board that it did not contest the process used
by the investigator.
From the beginning of the hearing, the union took the
position that the grievor's behaviour was highly offensive, and in
ordinary circumstances, would warrant discharge. However, in the
~
'"
.
.-" c
Page 4
Union's view there were several mitigating factors. Union's
counsel submitted that that while the grievor takes full
responsibility for his actions, the context and culture of the
hatchery was offensive and constituted a poisoned atmosphere,
under the management of Mr. Taylor. Union's counsel submitted
that the Employer was aware of the culture at the hatchery, and
knew that its employees including managers participated in the
culture. Union's counsel submitted that part of the blame for the
poisoned atmosphere must fall on the Employer.
Secondly, Union's counsel relied on the inequitable
treatment that the grievor received as compared to the treatment
received by Mr. Lewis and Mr. Taylor, the manager, as a mitigating
the grievor's penalty. Union's counsel argued that although the
grievor's behaviour was inappropriate, there should have been some
relationship between the participation and behaviour of the
respective persons and the treatment that each one received
Thirdly, Union's counsel submitted that the grievor had
suffered from alcoholism, which was apparent before his discharge.
Union's counsel submitted that the grievor has been an alcoholic
for thirty-five years with varying intensity, but it had become
extremely serious in the couple of years prior to his discharge.
The grievor had also suffered abuse by his parents and sexual
abuse as a child. Union's counsel submitted that there was a link
between the grievor's illness of alcoholism and his actions, and
that the Employer should have viewed the grievor as having a
medical problem. Union's counsel submitted that many of the
grievor's comments related to sexuality, were related to the
effect of the childhood abuse on Mr. Moore.
Union's counsel submitted that the Employer should have
had a concern for the grievor notwithstanding his offensive
behaviour and the grievor should be reinstated and be allowed to
continue on long term treatment. The Union submitted that in
light of the mitigating factors, which also included his service
'"
,i
",,' 6
Page 5
of twenty-three years, a lengthy suspension was warranted.
Employer's counsel argued that the Union failed to
discharge its onus to show that there were mitigating factors that
outweighed the gravity of the offence. The Employer had a serious
obligation to ensure that there was a harassment free environment
for all its employees. She argued that the grievor's conduct
continued over a lengthy period of time, notwithstanding his
attendance at a seminar on harassment. She argued that no
employee's behaviour was equivalent to the grievor's and
accordingly no penalty could be similar.
Employer's counsel contested any finding of alcohol
dependence. She argued that the grievor's evidence on his
alcoholism was not credible and submitted that the Employer's
witnesses ought to be preferred. Employer's counsel argued that
there was no evidence of alcoholism during his employment.
Employer's counsel further argued, that even if there was a
finding that the grievor was an alcoholic, the union has not
established a causal link between alcoholism and Mr. Moore's
sexual harassment. Employer's counsel argued that any evidence of
alcoholism or rehabilitation after the grievor's discharge ought
to be disregarded as a mitigating factor.
Employer's counsel argued that the only mitigating
factor was that of lengthy service, and that should not mitigate
the grievor's penalty, bearing in mind the gravity of his
offences.
Oh August 4, 1992, immediately after the complaints were
made the grievor went on short term disability, which has not been
not contested. Although the grievor asked the Employer for an
application for long term disability before he was discharged, the
Employer did not provide him with the application forms The
grievor subsequently applied for long term disability with the
Union's assistance in May 1993. During the course of the hearing,
-
~
.
" ('
Page 6
the grievor was denied coverage by the insurance company on the
basis that the grievor was not an employee at the time he made the
application.
At the beginning of the hearing, as Mr. Moore was no
longer an employee, the union understood that long term disability
was no longer available to him and took the view that the Employer
could not discharge the grievor so as to deprive him of his vested
right to long term disability. Union's counsel submitted that the
discharge was unjust or premature as it disentitled the grievor to
long term disability.
Employer's counsel argued that cause does not preclude
the Employer from discharging the grievor, even if the effect of
that discharge is to deny him benefits under the long term
disability plan. Employer's counsel further submitted that with
respect to the coverage under the long term disability plan, the
coverage under the collective agreement is not based upon
employment status and took a different position from that taken by
the insurance company.
Facts
Although the description of the evidence in this matter
is fairly detailed, there were many details and evidence that have
been omitted, which although relevant to the decision, is
corroborative and does not add to or impact the decision. Except
as indicated, there are no substantial differences in the evidence
of either the Employer witnesses or Mr. Moore on the events that
occurred at the hatchery and on the working environment.
As the context of the allegations has been an issue, I
have included Mr. Moore's evidence of the events as they arise.
For easier readability, I have chosen to weave the evidence of the
various witnesses together in a more or less sequential fashion
"-
":
,>
, ~
Page 7
As the allegation of a poisoned atmosphere was relied upon by the
Union as a basis for mitigating circumstances, it is necessary to
look back beyond the time of the specific allegations to
understand the context of the allegations.
Mr. Moore settled in Pembroke approximately thirty-five
years ago. He began to work for the Ministry on a full-time basis
on May 3, 1967, completed his probationary period in October 1967,
and worked at the hatchery until his termination on December 3,
1992 as a resource technician. Mr. Moore was manager when the
hatchery was privatized in 1983, but lost the position at that
time. After four years, when the hatchery returned to the
Ministry's control, Mr. Moore competed for the manager position,
but lost the competition to Al Chamberlain, who held the position
for about a year and a half. Mr. Moore became Acting Manager for
the six to eight months prior to losing a further competition for
the position of Manager to Mr. Taylor, who remained manager during
the period of time that is the subject of this decision. When Mr
Moore was not a manager, he was Assistant Manager. The District
Manager for the Pembroke area was Ray Bonenberg.
The primary purpose of the hatchery was to produce
salmonoid trout to stock public waters. It was also engaged in
waterfowl management, including banding ducks and geese and
providing a good habitat for them. The hatchery was set out 400
acres and comprised of a main office, a workshop or garage, three
fish rearing ponds, a feed room, a gas shed, a barn, and a storage
shed. There was also a residence on the property that was
occupied by Mr. Taylor. Mr. Moore lived outside the property, but
in close proximity.
The hatchery was operated throughout the year, by a
manager and two resource technicians. At the relevant time, the
full time employees were the manager, Mr. Taylor, and the two
resou~ce technicians, Mr. Moore and Mr. Lewis. Mr. Lewis began
working in Pettawawa at the hatchery on June 13, 1990, first, as
'"
i. '-'
Page 8
an resource technician 2, and then as a resource technician 3.
From the spring of 1992, he spent the majority of his time at the
District office. He was transferred upon his request to North Bay
on November 20, 1992. Coop students, who were primarily casual
staff, and IIExperience Students" also worked on the property under
Mr. Taylor. In 1992, five Environmental Youth Corp (EYC) students
were lead by a university student Tyler Hoar, who reported to the
biologist, Mark Stabb, who then reported to the District Office
and to Mr. Bonenberg.
The EYC students ranged from high school students to
university students. It was the complaints by two of these
students at the end of July 1992, which were supported by Mr.
Lewis and by Tyler Hoar, that led to the investigation of Mr.
Moore's conduct and to his ultimate dismissal.
The environment at the hatchery was crude. Both Mr.
Moore's evidence and Mr. Lewis' evidence on the nature of the
environme'nt was consistent. Mr. Moore stated that after
privatization, there were many times that only he and another full
time bargaining unit employee were present. From 1990, that
person was Mr. Lewis. There was no regulation of their
activities. They would tell dirty jokes, banter about anything,
about homosexuals, talk about their sexual exploits. Staff from
the District office would also visit, banter and carryon. In Mr.
Moore's view when there were summer students at the hatchery, the
atmosphere did not change.
Mr. Lewis testified that the full-time employees and the
students knew a lot about each other's personal lives. Mr. Lewis
viewed the culture at the hatchery as that of locker room joking
Mr. Lewis admitted that up to 1992, he engaged in sexual banter,
and saw the nature of the banter as light discussion, small talk
that was joking around and helpful. For instance, in 1991, he
flirted, which in his mind was "healthy flirting", with a student.
He told Mr. Moore that he found her attractive. Mr. Lewis
.
~
Page 9
testified that this comment however, prompted Mr Moore to suggest
that Mr. Lewis have sex with her including a graphic commentary on
how. The students, also engaged in comments, and engaged in play
fighting which involved physical contact
The storytelling and joking extended beyond the working
relationship. Mr. Lewis had no~ known Mr. Moore before he came to
the hatchery, but while at the hatchery, they worked closely
together and developed a friendly relationship which included
socializing outside work hours, visiting at home and fishing.
While at work on stocking runs, they talked about many personal
things, such as Mr. Moore's marital problems, and psychiatric
treatment, and Mr. Lewis' depression and need for psychiatric
assistance. Many comments and stories had sexual references and
connotations. Mr. Lewis stated that although he did not find
these stories particularly offensive, and usually met them with
silence, he testified that he did not know how Mr. Moore could
derive satisfaction from such comments. Mr. Lewis said he
believed Mr. Moore used him as a sounding board, and again he
usually responded by silence. Mr. Lewis did state however, that
Mr. Moore did make inferences that he was a homosexual to others
in a public place
The nature of this banter extended beyond Mr. Lewis and
Mr. Moore. Mr. Lewis said that Mr. Moore's close friend Mr.
Sargentson, worked at the District Office, but sometimes came to
the hatchery. The three of them would go fishing together. Mr.
Moore and Mr. Lewis would make of f coloured jokes, but in Mr.
Lewis' view, they were not offensive, because Mr Sargent son had a
good sense of humour and they were not hurtful in any way.
Mr. Moore made no reference to any specific exchanges
between Mr. Lewis and ~he students.
Mr Moore involved the students in his comments and
actions. Mr. Lewis testified that in 1991, Mr. Moore made many
.
.to f-
Page 1 0
untoward and unwelcome sexual comments to an "Experience" student.
Mr. Lewis saw Mr. Moore blow in her ear and play with her hair
This upset the stud~nt and she left. Mr. Moore, on the other
hand, recalled this incident differently. He said that he moved
close to her to see her work, and she looked at his crotch and
said "Don't get hard."
Mr. Lewis alleged that Mr. Moore dropped his pants in
front of the student, but Mr. Moore could not recall this
incident.
Mr. Lewis said that Mr. Moore compared student's
physical frame to a male student and alluded that she was
therefore Mr. Taylor's type, making a homosexual reference. Mr
Moore told Mr. Lewis that it would be like having sex with a boy,
which he (Mr. MOOre) may like. Mr. Lewis said that Mr. Moore
asked the student if she "would like to have both Mr. Lewis and
himself, which would be like being bounced between a pillar and a
post" . Mr. Moore could not recall this comment at all. Mr. Lewis
testified that Mr. Moore made comments on more than one occasion
in the presence of the student and others, that the student's
"brea~ts were just like he likes, little nibblers". Mr Lewis
said that although both he and the student tried to ignore the
comments, Mr. Lewis said that he was not particularly offended by
these comments and was not concerned about the student. Mr. Lewis
felt the student had the personality to field comments and could
handle the company of male workers in an intense atmosphere.
In either January or February 1992, there was a full day
seminar given on sexual harassment for the staff. Both Mr. Lewis
and Mr Moore testified that they attended. Mr. Lewis testified
that they were told that the employees had to modify their
behaviour immediately or else the system would make them Mr.
Lewis understood from the seminar that the responsibility for a
harassment free environment fell on both staff and management and
understood that the behaviour and joking that he had previously
~
~
'. ~
Page 11
engaged in was no longer acceptable He did not believe he had a
duty to report acts of harassment, only to deal with them as they
arose. After the seminar, he said that he and Mr. Moore discussed
the seminar extensively.
Although Mr. Lewis saw the joking as fun, he testified
as he became sensitized to the issues of harassment and
inappropriate comments though directives, such as the sexual
harassment policy and the sexual harassment seminar, Mr. Lewis
modified his behaviour. Mr. Moore confirmed that Mr Lewis did
not participate in sexual banter after June 1992.
Shortly after the student began their summer jobs, the
Ministry held another harassment seminar. Tyler Hoar had first
met Mr. Moore on June 15, 1992. Mr. Moore said that he was not at
that seminar, although Tyler Hoar, who supervised the students on
a daily basis, remembered that Mr. Moore sat beside him. It was
alleged that shortly after, Mr. Moore commented to one of the
female students on one of the scenarios that had been discussed
and said that "no means yes" That student told him that his
comment was offensive. Mr Moore recalled saying that "no does
not mean no", but said that it was a joke. He now admits that it
was a stupid comment.
Mr. Lewis testified to other incidents which illustrated
that Mr. Moore did not change his behaviour. For instance, in
1992, Mr. Moore continued to involve the students in his comments
On another occasion on provincial property, while
waiting with another male student and Mr Lewis, for the two
female students to bring their canoe to shore, Mr. Moore commented
on having seen two lesbians have oral sex at that location,
describing the sex. Mr. Lewis told him to stop, but Mr. Moore
continued his commentary. Mr. Moore admitted making comments
about lesbian sex as referred to and documented in the
investigator's report. He also told Mr Lewis that the two female
, .
~s. '-'
Page 12
students were castrating women, and that he hated women.
Tyler Hoar testified that, from June 15, 1992 to July 8,
1992, he felt that Mr. Moore was intimidating the students. Mr.
Moore would stand by the door to the lunchroom and make comments
almost daily.
After an incident on or about July 8, 1992, Tyler Hoar
decided to keep the students away from Mr. Moore as much as
possible. Mr. Moore had been banding goslings with Mr. Lewis and
a female student. In doing so, the gosling must be held close to
the body, while the gosling was banded. Mr. Lewis did not notice
anything inappropriate. After the banding exercise, Tyler Hoar,
Mr. Lewis and Mr. Moore were in the truck. Mr. Moore commented
that the female student had nice firm breasts and he had planned
the gosling procedure so that he could have a sneak feel of her
breasts. She reminded him of his former wife. Mr. Moore then
went on to talk about an anal intercourse scene in a pornographic
movie in explicit detail, and then began to talk about Mr. Lewis'
wife, how she looked like a little boy and that Mr Lewis probably
liked having sex with little boys. Both Mr. Lewis and Tyler Hoar
told him in the vernacular to be quiet. After Mr. Moore engaged
in this monologue, Tyler Hoar perceived Mr. Moore as dangerous.
Although Tyler Hoar wanted to make a formal complaint at the time,
he decided to wait until the students were no longer on the
property. Mr. Lewis' evidence on this incident mirrored Tyler
Hoar's.
Mr. Moore did not recollect the banding exercise as told
by Mr. Hoar and Mr. Lewis. He said he told Mr. Lewis that he
touched the female student's breasts during the goose banding
exercise, but that it was unavoidable and made him feel
uncomfortable. Mr. Moore admitted telling the alleged story of
anal sex, although in cross-examination he stated that he did not
recall using what he now described, as the disgusting language set
out in the investigator's report and as testified to by Mr Hoar
.
,
" ~
Page 13
Tyler Hoar testified that one particular student was the
focus of many of his comments. Mr. Moore gave her a derogatory
nickname, which he used frequently. Tyler Hoar eluded in his
testimony that Mr. Moore commented on her body when he testified
that Mr. Moore commented, while smirking, that she had become a
little wet while moving fish screens, which was substantiated when
she appeared with water stains over one of her breasts.
Tyler Hoar testified that Mr. Moore would comment on the
student's moods and relate them to her sex life. One comment
prompted this student to tell Mr. Moore that he was a dirty old
man, that he did not know what kind of girl that she was, and to
stop making those comments From that point on, Mr. Moore changed
from making personal comments about this student to not speaking
to her, and trying to avoid her, or shielding his eyes from her
when she was present. Mr. Moore admitted he sometimes angered the
student with his comments, and that he changed his attitude
towards her.
Mr. Moore said that he began to distance hims~lf from
the students when one student told another to stop looking at her
'boobs'. He did not want to have contact with the students and
tried to avoid them. In his view, he was in the process of going
downhill Mr. Moore admitted that he used his hands to shield his
face while in front of the students, or would turn away. His
explanation was that he had a habit of "going into a trance, and
spacing out". He explained to the investigator that he did not
want to be accused of staring He stated that when he went into a
trance, which he had done from time to time over the years, he
could not recall anything,
Mr. Moore asserted that the behaviour of the students
was at times were inappropriate Mr Moore felt that play fights
between the students, and putting on suntan lotion on one another
was inappropriate. On one occasion, Mr Moore told a student that
his comments were inappropriate In mid July, Mr. Moore felt that
~
.
.
" ~
Page 14
Mr. Lewis was making inappropriate comments about having sex with
one of the students and he told Mr Lewis not to make such
comments.
Mr. Moore stated that notwithstanding his relationship
with Mr. Taylor he tried to be around the students when Mr. Taylor
was around. He told Mr. Taylor that the drinking at his barbecues
was inappropriate. However, Mr. Moore tried to go as few
barbecues as possible as he said he knew that he would drink to
excess.
Mr. Lewis said that while he was away, Mr. Moore had
also made suggestive comments to his wife, Diana, who was also at
times an employee of the Ministry. Mr. Lewis said that on another
occasion in July 1992, Mr. Moore told an inappropriate sexual joke
in front of Mr. Lewis' wife and children, which he had heard Mr.
Moore tell the Eye students. This joke had not been taken well by
the students Mr Lewis' wife reacted and told Mr. Moore told him
to grow up and not to speak that way. Mr. Lewis also told Mr.
Moore that he had to stop and change before it was too late. Mr.
Lewis said Mr. Moore apologized in a childish way, and then
commented that Mr. Lewis would not have any sex that night as his
wife was in a bitchy mood. Mr. Moore did not disagree with Mr.
Lewis' characterization of the incident.
Mr. Moore took the position that the only person who
directly told him that his behaviour was offensive was Dianna
Lewis. However, he did admit ultimately that one particular
student had objected to one of his comments and that he had
apologized to her.
Mr. Lewis stated that Mr. Taylor also discussed his
sexual exploits in front of staff and students, and participated
in sexual banter, which in some instances offended others, and in
some instances was not offensive Mr. Lewis developed concerns
about Mr. Taylor In hindsight, he attributed his concerns from
~
~
~ ~
Page 15
his first day at work with Mr. Taylor, when Mr. Taylor went
fishing with him, drank too much. Mr. Taylor boasted to him that
he would drink to excess in order to be invited to stay over at a
friend's, so he would increase his possibilities of having a
sexual encounter. Mr. Lewis later attributed this intention to
Mr. Taylor when Mr. Taylor invited the students over to his house
for barbeques, and supplied them with alcohol and allowed them to
stay over.
In the summer of 1991, there were also allegations made
of a serious nature against Mr. Taylor toward a high school coop
student, who shall hereafter be referred to as I'YY" , that were
relevant to the atmosphere at the hatchery. Neither Mr. Taylor
nor YY, who were the people solely involved in the incident, were
called to give evidence, but the information received by Mr. Lewis
and Mr. Moore, and the perceptions that developed about the
incident created repercussions to the hatchery. The story
circulated with some variation through the following year. There
was evidence that the incidents were discussed by YY with Mr.
Lewis, and subsequently with Mr. Moore, and that the allegations
or incident became subject of an investigation and discipline
The evidence of the "allegations" and the "incident" were led and
accepted, to demonstrate the effect of the allegations against Mr.
Taylor had on the atmosphere that developed at the hatchery and to
support the Union's contention of unequal treatment to the
employees. For ease of reference, I will subsequently refer to
the "incidents" or "allegations" as the "YY incident".
Mr. Lewis said that he was told by YY that on YY's first
day of work, while he was having coffee with Mr. Taylor, Mr
Taylor told him that he masturbated in the absence of his
girlfriend, and asked YY how frequently he masturbated. YY said
he told Mr. Taylor that he did not want to talk about it. The
following day, Mr. Taylor called YY into his office and showed him
a video on his computer of a man and woman having oral sex Mr.
Lewis said that yy told him that he did not know what to make of
-
,>' ~
Page 16
it, and that he felt that Mr. Taylor was "coming on to him" which
Mr. Lewis interpreted as making advances towards YY. Mr. Lewis
understood that YY did not want to pursue the complaint.
When Mr. Lewis told Mr. Moore of these allegations, Mr.
Moore accepted the possibility of the events occurring, as he said
he had seen a program on Mr. Taylor'S computer depicting two
pornographic photographs depicting fellatio. Mr. Moore said that
he then went to speak to YY, who said that he would make a
complaint if Mr. Moore advised him to. Mr. Moore said, however,
that the incident caused him to have flashbacks of sexual abuse he
had experienced as a young man, and as he could not handle its
effects, told YY that he did not want to go further with the
allegations. Mr. Lewis told YY to avoid Mr. Taylor, and that he
and Mr. Moore would make sure that YY would not work alone with
him. YY was content with this arrangement. Mr. Lewis did not
report the incident to anyone, although Mr. Moore said he spoke
to Mr. Haas, who was a friend and a former District Director who
had since resigned. Mr. Haas was not called to give evidence.
When Mr. Taylor became the manager of the hatchery, he
had a rough aggressive approach to managing the employees. Mr.
Lewis testified that Mr Taylor talked to him in inappropriate
ways, was involved him in verbal altercations and disagreements in
the presence of the public and subordinate employees, used
profanities and threatened him that he would lose his job.
Mr. Moore also testified that his relationship with Mr.
Taylor was poor from the start From Mr. Taylor'S first day, Mr.
Taylor clipped him in the head and told him that he had to do the
work the way he said. Mr Taylor continued to instruct him on all
aspects of his work and did not allow him to do anything other
than that which was specifically directed. They disagreed on how
the work was to be done and Mr. Taylor found fault with what he
did. Mr. Taylor shouted at him, used profanities at him and
threatened him with losing his job and was abusive to him. While
~
.
-
Page 17
Mr. Moore was working at the hatchery, Mr. Taylor hit him on the
head on two other occasions.
The poor working environment led to a meeting between
Mr. Taylor, Mr. Moore and Mr. Heerschap, the Fish and wildlife
Supervisor, on June 1 7 , 1991, in which Mr. Moore was admonished
for not heeding Mr. Taylor, as his supervisor, and repeatedly
ignoring his directions and for "creating a negative working
environment". Two days latet' , as Mr. Taylor had advised Mr
Heerschap that Mr. Moore's attitude did not change, Mr. Moore was
warned in writing, that if his behaviour did not improve in the
next two weeks, formal disciplinary action would be taken. No
formal discipline was taken.
Mr. Bonenberg became the District Manager in 1991. He
had been given some history of the hatchery and its privatization,
and had been told of the strained relations between Mr. Taylor and
Mr. Moore. In the fall of 1991, he became directly involved when
Mr. Moore told him, without disclosing particulars, that it was
difficult to work with Mr. Taylor. Mr. Moore wanted him to
monitor the situation. Mr. Bonenberg told Mr. Heerschap of the
conversation, but the situatioB was not followed, as Mr Heerschap
was transferred at the end of the year.
The situation did not improve. Mr. Bonenberg held a
meeting with Mr. Taylor and Mr. Moore on October 28, 1991 after
Mr. Taylor alleged that Mr. Moore used profanity towards him Mr.
Bonenberg had recorded that Mr. Moore had not remembered using
profanity towards Mr. Taylor. As a result of this meeting, Mr.
Moore received a letter of reprimand from Mr. Bonenberg, dated
November 4, 1991, in which Mr. Bonenberg pointed out that he had
observed a "poisoned atmosphet'e" and "a lack of respect towards
his supervisor bordering on insubordination" and warned Mr. Moore
of possible future discipline Mr. Bonenberg advised that the
letter would remain on his file for two years Mr. Moore did not
recall the meeting as recorded by the minutes, but recalled that
"'
~
Page 18
his profanity was not directed at Mr. Taylor, but was directed
towards another.
Following the October 28, 1991 meeting, Mr Bonenberg
testified that when Mr. Taylor came to him to discuss Mr. Moore's
failure to recall using profanity towards him, Mr. Taylor asked
him about the sexual harassment policy. Mr. Taylor then admitted
to Mr. Bonenberg that he had shown a three dimensional
pornographic photograph to YY on his computer, but did not think
that the student acted negatively. Mr. Bonenberg testified that
he did not investigate further, as he viewed the incident as more
of a conversation between males, than an inappropriate
conversation between a supervisor to an employee. In any event,
Mr. Bonenberg testified that he gave Mr. Taylor an oral reprimand,
directing him to remove the material and not to show it again,
followed by a written warning. In the warning letter, Mr.
Bonenberg commended Mr. Taylor on his thorough documentation and
patience with Mr. Moore, and directed him to "use caution" in the
workplace, and to remove any potentially offensive material.
Although it was not referred to in the letter, Mr Bonenberg
testified that using caution was directed to Mr. Taylor's comments
to the student when he asked him if the photographs aroused him.
Ultimately, there was an investigation into the YY
incident, but the investigation did not arise from Mr. Bonenberg
learning of the incident, but as a result of being told again
about the allegations by Bruce Mr. Hood, Acting Fish and wildlife
Supervisor, who had stepped into Mr. Heerschap's position in
January 1992.
Mr. Hood was asked to investigate the working
environment and the hatchery's image after an incident ~urred at
a meeting on January 9, 1992. Mr Hood was at a meeting with Mr.
Taylor, Mr. Moore, Mr. Lewis, and Mr Stabb. Although the meeting
was called to discuss a project, the meeting became focussed on
the future reorganization and the downsizing of hatcheries, and
!,
>
>
Page 19
the reallocation of employees. Mr. Lewis said that in the context
that Mr. Moore had eight years of service before he could retire,
and in the context of the downsizing, Mr. Lewis commented that he
(Mr. Moore) would not make it until the year 2000, at which point
Mr. Moore said "If I go down, I'm taking people with me. I'll get
an AKA 47 and start mowing people down". Mr. Lewis also made a
comment such as "like at McDonald's with an Ouzi". After the
meeting, Mr. Taylor came to Mr. Hood and expressed his concern for
his safety.
That day, Mr. Hood met with Mr. Moore, who explained to
Mr. Hood that his comments were part of a long standing joke with
Mr. Lewis about dying. Mr. Lewis confirmed to Mr. Hood that Mr.
Moore had a great fear of developing and dying from cancer Mr.
Hood did not accept Mr. Moore's comments as a joke as he had heard
rumours about Mr. Moore, before he (Mr. Hood) arrived at the
hatchery. Although both Mr. Lewis and Mr. Moore made comments,
Mr. Taylor said that he took the words and stance of Mr. Moore
seriously, and felt threatened. He made no comment on the effect
of Mr. Lewis' statement. As a result, Mr. Hood gave Mr. Moore an
oral reprimand, told him that people found his comments were
threatening, and advised him that such comments would not be
tolerated.
Mr. Hood then discussed the matter with Mr. Bonenberg,
and at his direction forwarded Mr Moore a counselling letter In
the letter, he acknowledged that there was a high level of stress
brought upon by the economic situation and suggested that Mr.
Moore consider employee counselling or counselling from the local
Mental Health unit. Although Mr. Moore had not suggested that the
comments were brought on by stress, Mr. Hood had been aware from
his conversations with Mr. Moore in December, that Mr. Moore was
afraid that Mr. Taylor was trying to reduce the number of
positions and he was concerned about losing his job
Mr. Bonenberg testified that as Mr. Hood had told him
"
.
"
Page 20
that there were conflicts between Mr. Taylor and Mr. Moore, he
directed Mr. Hood to determine the causes of the conflict, and
speak to previous employees, including students, if possible. Mr.
Bonenberg took the position that his direction was very general in
scope and that he did not refer Mr. Hood to anyone in particular.
Mr. Hood, on the other hand, Mr. Hood testified that he had been
directed to investigate the image of the hatchery, and was
specifically to speak to YY amongst others. Mr. Hood spoke to Mr.
Taylor, Mr. Moore, Mr. Lewis, several former employees of the
hatchery, several coop students and the coordinators of the
program.
Prior to the investigation, Mr. Hood had heard some
comments about Mr. Taylor from Mr. Heerschap. Mr. Heerschap had
told him that the hatchery was a strange place, a negative place,
and he did not always like going there because there was negative
interaction with the staff. Mr. Heerschap had told him that Mr.
Taylor had had to remove a pornographic image from his computer
and he had made comments about masturbation, but he had not
understood that the comments were directed to a student.
In Mr. Hood's investigation, Mr. Hood learned from Mr.
Moore and from Mr. Lewis that they were upset about an incident
concerning Mr. Taylor and YY and did not feel that the District
took the incident seriously. Mr. Lewis gave Mr. Hood the details.
Mr. Lewis mentioned to him that he was concerned for the safety of
the Eye students.
As a result of Mr. Moore and Mr. Lewis' allegations
about Mr. Taylor and YY, and his direction from Mr. Bonenberg, Mr.
Hood contacted YY. Mr. Hood reported that, on the one hand, YY
denied all the allegations, except for the photograph. He said
that Mr. Taylor never touched him. At the same time, YY said that
it could have happened, but that he was big enough to handle it.
He also mentioned that he did not want his father to find out and
he did not want to make a complaint. The ambivalence in YY' s
~
~
-
Page 21
position created doubts in Mr Hood's mind. He was not certain
that the allegations had no foundation. Mr. Hood discussed his
doubts with Mr. Bonenberg. Mr. Bonenberg told Mr Hood, that as
YY did not wish to complain, the matter would go no further.
YY had also commented, as had Mr. Lewis, that he thought
it was wrong to go to the hatchery and have to put up with Mr.
Taylor's stories of drinking and partying on the weekend.
The students commented to Mr. Hood about the working
atmosphere. YY commented that Mr. Moore was jealous of Mr.
Taylor, but Mr. Lewis tried to remain neutral. Another student
told him that there was infighting between Mr. Moore and Mr.
Taylor, but another had commented that when Mr. Taylor was away
the atmosphere deteriorated. On the other hand, Mr. Hood learned
from both coop coordinators that they were pleased with the
placements.
In the course of Mr. Hood's investigation, Mr Hood
learned that Mr. Moore and Mr. Lewis had suggested to the students
that Mr. Taylor had had a homosexual encounter, and had warned the
students to stay away from Mr. Taylor. Mr. Lewis said he had told
the students that he did not trust Mr Taylor and that they should
not either. Mr. Lewis told the students that if they were
uncomfortable to speak to either him or to) Mr. Moore.
This last aspect of the investigation prompted Mr
Bonenberg and Mr. Hood to meet with Mr. Moore and Mr Lewis on
March 9, 1992 to discuss their relationship with Mr. Taylor Mr.
Moore and Mr. Lewis were warned not to make comments about Mr
Taylor to the coop students, whether it related to the YY
incident, to broader based comments, such as referring to Mr.
Taylor as a homosexual, or their concern with Mr. Taylor's conduct
with other men Mr Bonenberg further directed them to keep their
conflict with Mr. Taylor behind closed doors. Mr. Bonenberg
advised them that if funding was available in the next year, the
<.
~
~
Page 22
Ministry would provide training on interpersonal relationships.
Mr. Lewis and Mr. Moore each received a disciplinary letter dated
April 2, 1992, which confirmed the contents of the meeting,
advised them that their conduct could constitute harassment, and
directed them not to speak of the incidents to any coop student.
As a result of the investigation, Mr. Bonenberg also met
with Mr. Taylor on March 23, 1992, to discuss his management
style. He directed him not to threaten staff with loss of
termination if they did not live up to his standards, to give the
coop students a good image of the hatchery and to keep his
conflict with Mr. Moore behind closed doors. Mr. Bonenberg
suggested that the Ministry would provide career counselling and
,
training on interpersonal relationships if funding allowed. As a
result of the conflict in the workplace, Mr. Bonenberg deferred
Mr. Taylor's merit increase for a period of six months.
On June 26, 1992, the reorganization took place. No
jobs were lost at the hatchery, but the reporting structure
changed. The hatchery no longer reported to Mr. Bonenberg at the
Pembroke District Office, but to Mr. Mack, who was the Manager of
the Fish Culture Section, Great Lakes Branch. The five EYC
students were to work at the hatchery and use the lunch room as
their base and were to report to Tyler Hoar, who then reported to
Mr Stabb, and to Mr. Bonenberg at the District Office.
Tyler Hoar testified that there was a great deal of
infighting between Mr. Taylor and Mr. Moore. Finally, when Mr.
Taylor and Mr. Moore were on a tour with the students to observe
the students' work, Mr. Moore was totally inattentive, and Mr.
Taylor told the students that he was not satisfied with their
work, and he would have to have someone in to do their work again
Mr. Taylor and Mr. Moore's reaction and lack of reaction upset the
female students. Tyler Hoar, who was tired of the infighting,
told them about Mr. Moore's comments on the banding exercise, and
suggested that they lodge a formal complaint
-- ~---_._- --~
"~
',>
, .
. ~
Page 23
Tyler Hoar spoke to Mr. Lewis, who he trusted, who then
referred the students to Mr. Bonenberg. Tyler Hoar and three
students went to see Mr. Stabb, and then the following morning on
July 31, 1992, they spoke to Mr. Bonenberg. Tyler Hoar and the
students complained about Mr. Moore, but they did not complain
about Mr Lewis or Mr. Taylor.
It was the first time that Mr. Bonenberg had heard of
any problems affecting the students. Mr. Bonenberg said that the
students were distraught about the comments that Mr. Moore had
been making about their bodies and the way he had been acting.
They wanted to launch formal complaints. They no longer wanted to
work at the hatchery and were afraid to return with Mr. Moore
there. As one student was so upset and did not want to return to
work, Mr. Bonenberg excused her and paid her for her last two
weeks of work. Mr. Bonenberg advised the other students that they
would working from the District Office and directed Mr. Stabb and
another conservation officer to obtain the students' work from the
hatchery.
Tyler Hoar prepared his complaint, claiming that Mr.
Moore had been discriminating against, harassing and intimidating
the students during the summer. Tyler Hoar did not lay a
complaint against Mr. Taylor. Although Tyler Hoar found him
unprofessional, he did not perceive him dangerous, as he did Mr
Moore. Tyler Hoar acknowledged that Mr. Taylor would put his hand
on his crotch or would thrust his crotch in front of the students,
which he found sexually offensive. Tyler Hoar knew that there had
been some problems with Mr. Taylor and YY. Although he did not
know the particulars, he did associate rumours with comments that
Mr. Moore made in the presence of and in reference to Mr. Taylor,
that there was a sex offender present.
Mr. Bonenberg notified the Employment Equity Office that
he expected to receive written complaints in the next few days.
~
.~
~ .
> -
Page 24
He then advised Mr. Mack. Mr. Bonenberg then called Mr. Moore to
advise him that there would be an investigation into a number of
complaints which had been lodged against him. Mr. Bonenberg did
not tell him about the nature of the complaints and did not
respond to Mr. Moore's questions about how long the investigation
would be, and whether he would be fired. Mr. Moore had heard that
there were complaints being made against him earlier in the day,
when he arrived at the hatchery and heard comments from a
conservation officer that 'they' were in trouble. Mr. Moore did
not see Mr. Lewis for the rest of the day. On either July 31,
1992 or August 1, 1992 Mr. Lewis told him that th~ students were
laying complaints about his conduct. Mr. Moore said he learned
that Mr. Lewis was helping the students write the complaints.
Mr. Lewis stated that initially he had no intention to
write a report, but did so only in support of the complaints made
by the students, when he felt that Mr. Moore did not see any need
to change his behaviour. Mr. Lewis prepared a memorandum for Mr.
Bonenberg dated August 1, 1992 setting out particulars of
incidents in 1991 and 1992, which he witnessed and described
stories told to him by Mr. Moore, some of which have been set out
in this decision.
Mr. Lewis said he left a copy at Mr. Bonenberg's office
I
and one on his desk. Mr. Lewis inferred that Mr Moore had taken
the copy as the copy he had left on his desk was not there and Mr
Moore was there even though he was not scheduled to work Mr
Moore glared at him and left There was no evidence that Mr
Moore did take the copy
Only two students ~~oceeded to lay formal complaints.
Mr. Bonenberg received the formal complaints from the students on
August 4, 1992.
Mr Moore went on sick leave on August 4, 1992, after he -
gave Mr. Taylor a medical note dated the same day advising that
~
"
~
Page 25
Mr. Moore would be off work for four weeks. Mr. Moore said that
although the complaints were a part of the reason for taking the
sick leave, he realized he was sick he was after telling one
particularly gross story to Mr. Lewis and to a male student, and
had told Mr. Taylor on either July 29, 1992 or July 31, 1992 that
he was going on sick leave.
Mr. Mack first learned about the complaints from Mr.
Bonenberg on August 6, 1992. He had no prior knowledge of any
incidents of harassment and discrimination, although he had
perceived that the hatchery was a unpleasant place to work. Mr.
Mack had been acquainted with Mr. Taylor, Mr. Moore and Mr Lewis
prior to coming to the hatchery. When Mr Mack arrived at the
hatchery in June 1992, he learned that the Mr. Taylor, Mr. Moore
and Mr. Lewis had problems in their relationships, and that Mr.
Moore and Mr. Lewis had been disciplined. He understood however,
that the relationship had improved, and that Mr. Moore and Mr.
Taylor had agreed to disagr.ee. Mr. Mack and Mr. Bonenberg
discussed whether they would leave Mr. Moore at the hatchery or
suspend him with pay. Mr. Mack did not want Mr. Moore to be at
the hatchery while the investigation into his conduct was taking
place, and was satisfied that he was on sick leave.
When Mr. Mack called Mr. Taylor to tell him of the
allegations against Mr. Moore, in the beginning of August, Mr.
Mack received information, not about Mr. Moore, but about Mr
Lewis and about Mr. Taylor Mr. Taylor told him that Mr. Moore
had told him that Mr. Lewis had gone to a psychologist, and
implied that Mr. Lewis was violent and that a comment had been
made that one day neither Mr. Taylor, Mr Lewis or Mr Moore may
be here. Mr. Mack learned about the YY incident, but took from
the conversation that the matter had been dealt with. Mr. Taylor
also told him that he had been advised by Mr. Moore that
J
notwithstanding Mr. Lewis' discipline and direction not to make
comments about Mr Taylor to the Eye students, Mr. Lewis still
made comments about him "bum blasting" neighbourhood boys, and had
---
~
,.
~
Page 26
told the students to stay away from Mr Taylor. Mr Mack told Mr
Taylor of the harassment policy. As Mr. Taylor laid an informal
complaint, Mr. Mack made an informal investigation into Mr.
Taylor's allegations on August 19 and 20, 1992.
On the YY incident, Mr. Mack learned from Mr. Lewis,
that Mr. Lewis perceived Mr. Taylor as making a pass at the
student, and he concluded from Mr. Hood and Mr. Bonenberg, that
they took the YY incident as an inappropriate joke. After
speaking to Mr. Hood, Mr. Lewis and Mr. Bonenberg, Mr. Mack
concluded that Mr. Lewis did not continue to make comments after
he was disciplined and sent a letter to Mr. Taylor to that effect.
Mr. Taylor decided not to make a formal complaint.
Mr. Mack also heard other aspects about Mr. Taylor which
he did not pursue with Mr. Taylor at that time. Mr. Mack learned
from Mr. Lewis that Mr Taylor had invited young boys to see
turtles in his home. Mr. Mack saw the invitation, which was a
breach of policy, as showing lack of judgment in asking boys to
his home, but not see this as a sexual matter, or as a matter that
threatened the safety and security of the young boys, as did Mr.
Lewis and Mr. Moore. Mr. Mack also learned from Mr. Lewis and
that Mr. Taylor had taken the students out drinking and fishing.
Mr. Mack characterized this matter as a safety problem.
At the request of Mr Mack's supervisor, Art Holder, Mr.
Bonenberg and Mr. Taylor visited Mr. Moore on August 26, 1992 to
discuss the investigation process The meeting lasted no more
than five minutes. Mr Moore had received the formal complaints
on August 20 or 22, 1992. Mr. Bonenberg advised Mr. Moore that
the Deputy Minister would make the decision as to whether he would
be fired. Mr. Moore was told that his sick leave was being
managed by Mr Taylor and he was to provide him with medical
notes. Mr Moore was directed to stay away from the hatchery. If
he needed any resources, he was to come to the District or
Regional Office
-
.
~
Page 27
On October 27, 1992, Mr. Mack received a call from Mr.
Lewis saying that he was concerned for his safety and that of his
family. Mr Lewis said he perceived that Mr. Moore was
intentionally crossing paths with him on a frequent basis. Mr.
Lewis said he was concerned as Mr. Moore had made public threats
to others in the past. Mr. Lewis told him that his psychiatrist,
Dr. Brown, who had been Mr. Moore's psychiatrist, had told him
that Mr. Moore was unstable and capable of violence. Mr. Lewis
said that on Brown's suggestion, he had advised the police.
On hearing of Mr. Lewis' complaint, Mr. Mack called Dr.
Simson, the psychiatrist Mr. Moore had been attending during the
fall of 1992 to canvass his concerns with Mr. Moore's potential
for violence and the safety of others. Dr. Simson said that he
had canvassed violence with Mr. Moore and knew of the AKA 47
incident, but Mr. Moore claimed that he had had no violent
tendencies either in the past or present tense. Nevertheless, on
Mr. Lewis' request, Mr. Mack arranged a temporary transfer for Mr.
Lewis to North Bay as of November 20, 1992, which was formalized
on March 5, 1993.
On November 2 and 3, 1992, both Mr. Mack and Bonenberg
forwarded letters to Mr. Moore warning him not to stare or to make
staff uncomfortable, failing which he could be disciplined or
discharged, and advising him that criminal charges may be laid
against him. Copies of the letter were sent to Deputy 'Minister
Tough. Mr. Moore responded to Mr Tough denying the allegations.
At the hearing, Mr. Bonenberg was very vague about the complaints.
He said he had received a letter that Mr. Moore was watching
someone, but did not know who was the complainant or if he did he
would not convey the complainant's name to Mr. Moore. It was
clear however, from Mr. Lewis' evidence that he was the
complainant. Mr. Bonenberg arranged for Mr. Johnson, a supervisor
from the Pembroke District to go in his absence, with Mr. Taylor,
to tell Mr. Moore about these complaints
~
.
~..' ~
Page 28
On November 3, 1992, Mr. Johnson went with Mr. Taylor,
\ deliver letters
to to Mr. Moore concerning the complaints the
Ministry had received about Mr Moore parking and staring. They
would not give Mr. Moore particulars about the allegations, which
agitated Mr. Moore. Mr. Taylor also asked Mr. Moore to give his
medical files to the Ministry. Mr. Johnson told him that the
investigation would be over shortly and he hoped that they would
all keep their sanity. Mr. Moore commented on losing his own
sanity, but Mr. Johnson took the comment lightly as he believed
Mr. Moore was prone to exaggeration
From August 4, 1992, the date that Mr. Moore took short
term disability, to Mr. Moore's termination, the Employer received
some medical information. Mr. Mack received medical notes from
Mr. Moore's doctor, Dr. Dooley dated August 4, 1992, and August
24, 1992 each advising that Mr. Moore would be off work for about
four weeks. Mr. Mack received a further note dated September 27,
1992 advising him that Mr. Moore would be away from work until
November 9, 1992. No reasons were given for his absence. Mr.
Mack understood, however, from Mr. Taylor and Mr. Bonenberg that
Mr. Moore was under considerable stress, which he presumed, was a
result of the investigation. In a note dated October 27, 1992,
Dr. Dooley advised the Employer that Mr. Moore was suffering
serious problems with anxiety and depression and WaS undergoing
extensive treatment, and that he had advised Mr. Moore to remain
off work for another twelve weeks.
The Employer first learned that Mr. Moore had an alcohol
problem when it received a copy of Dr. Simson's opinion letter,
dated October 30, 1992 to Mr. Moore's union representative, Mr.
Haggett. Dr. Simson advised the Union that he had diagnosed Mr.
Moore with a Generalized Anxiety disorder. He mentioned that Mr.
Moore had told him that he had had a problem with alcohol over the
last two years, and had been drinking daily. When Mr. Mack called
Dr. Simson on November 8, 1992, for information on Mr Moore's
~
,i =-
Page 29
potential for violence, Mr. Mack did not discuss any medical or
any aspect of Mr. Moore's difficulties.
In a further letter from Dr. Simson, dated November 26,
1992, Dr. Simson modified his diagnosis to Anxiety Disorder and
alcoholism. He stated that the alcoholism could be adding to Mr
Moore's stress. In this letter, Dr. Simson addressed the issue of
violence and stated that Mr. Moore denied any tendency towards
violence and any stalking or staring.
The investigation report was completed on October 27,
1992. After Mr. Mack received the investigator's report, he was
involved in the decision to terminate Mr. Moore. Mr. Mack said
that he did not pursue suspension as Mr. Moore was on sick leave,
and had been directed to remain off the property.
The decision to terminate Mr. Moore was made after a
teleconference call was held to discuss the investigation report.
The teleconference call included Mr. Yetman, Maureen Paul, from
the Ministry, Yolanda Smith, Employment Equity Coordinator, Al
Stuart, the Regional Director Central District and Mr. Bonenberg.
They considered that Mr. Moore had been disciplined for
contributing to a poisoned atmosphere, and for the AKA 47
incident. Although there were no longer any performance
appraisals left on file, they did not consider him an exemplary
employee. However, Mr. Mack stated that the basic tenure of the
conversation was that "if you could not fire someone for this, you
could never fire anyone".
Mr. Mack met with the Union on November 30, 1992. The
union suggested that alcohol might have affected Mr Moore's
behaviour. Mr. Mack had said that management had discussed the
possibility of alcoholism, but there were no attendance problems
and Mr. Taylor knew of only one instance when Mr Moore came back
to work after have a few beers. After speaking with the Union,
Mr Mack set up a meeting to speak with Mr. Moore for December 3,
~
;:' ~
Page 30
1992.
Mr. Mack spoke to Mr. Moore twice on November 30, 1992,
and both times, Mr. Moore asked him for Long Term Income
Protection (LTIP) forms. In the second conversation, Mr Mack
advised him that they were handled through the district, but he
would let Mr. Taylor know that Mr. Moore was wanting them. When
Mr. Moore asked for the forms again, he told him that it would be
discussed at the meeting. Mr. Mack stated that ,his intention had
been to provide the forms at the meeting. Mr. Moore testified
that when he had contacted Mr. Taylor, that Mr. Taylor told him
that he had been directed not to give them to him. Mr. Mack
however, could not shed any light on this conversation or the
direction.
As the Employer perceived that there may be a security
risk created by discharging Mr. Moore, the Employer took various
steps to ensure the safety of its employees. At the request of
Deputy Minister Tough, Mr. Bonenberg asked an OPP officer to come
to the termination meeting. Mr. Bonenberg also arranged for the
locks to be changed both at the hatchery and at the District
Office. He advised the front line clerical staff of procedures to
be followed, including the pOlice's telephone number to call, and
evacuation procedures if Mr. Moore appeared at the office. Mr
Bonenberg authorized anyone to go home, if Mr. Moore's appearance
would unnerve them. One person did go home. He also contacted
the Pembroke City police to alert them He took his own seven
year old son to school and ensured that the child was not left
outside unsupervised. He said he ensured that the students would
not be at the hatchery, as he did not know who long Mr. Moore
would be away.
On December 3, 1992, in a short meeting of only a few
minutes, with Mr. Moore and his Union representative, Mr. Moore
was discharged. Mr. Bonenberg, Mr Mack, Haggett, and an opp
officer were present when Mr. Moore was advised of his
-
~
Page 31
termination Mr. Moore said that Mr. Mack provided Haggett, his
Union representative with a summary of the investigator's report,
but refused to provide the Union with the report itself. Mr.
Moore was not given his LTIP forms, as Mr. Mack had intended. Mr
Moore provided the Ministry with his keys and left.
Ultimately Mr. Moore received the LTIP forms from the
union in March or April 1993, but did not apply until May 17,
1993. Mr. Moore wrote that the cause of his claim for benefits
was "recovering from anxiety disorder, adjustment disorder and
depression. I am currently undergoing individual treatment." He
did not disclose any alcohol problem as he said that Dr. Simson
had told him that Confederation Life does not accept claims which
are based on alcohol problems. He was subsequently advised by
Confederation Life, the carrier, that he was not eligible as he
was not employed at the time ~hat he made the application.
With respect to Mr Taylor, Mr. Mack advised him on
December 1, 1992 that the Ministry was withholding his merit
increase pending the outcome of a disciplinary hearing under the
'"
Public Services Act.
Mr. Taylor's disciplinary hearing was held on February
18, 1993. Mr. Mack, who represented management at the meeting
testified as to the contents of the meeting. He testified to some
of the allegations that he relied on, which he had obtained from
the investigator's report and from his own informal investigation.
His notes of the meeting however, reflected many of the
allegations relied upon at this hearing and others.
Mr. Mack testified that he raised management's concerns
that Mr. Taylor was taking the students out fishing and drinking,
talking about his sexual activities, and his girl friend's sexual
activities in explicit detail, and the YY incident, contributed to
a poisoned working atmosphere
,
--~ --.-
~
~.... ~
Page 32
Mr. Mack said that Mr. Taylor did not deny taking the
students fishing and drinking, and having them to barbeques. He
admitted that if the students drank too much, he invited them to
stay overnight. He did not think that harassment applied to what
he did in his own time. Mr. Mack did not press this issue and
characterized it only as a safety issue, and not a sexual issue,
as none of the students had complained, even though the sexual
issue worried Mr. Lewis and Mr. Moore.
Mr. Taylor admitted to showing pornographic pictures to
YY and talking about masturbation with him, but construed it as
normal banter and locker room talk.
Mr. Mack raised the management's concerns that Mr. Moore
had opened mail for Mr. Taylor at the hatchery and found a sado
masochistic magazine. Mr. Taylor took the position that the
magazine was a catalogue that was not solicited, but sent to him
as a result of his subscription to punk rock magazines and was
delivered by error to the hatchery instead of his house.
Mr. Mack said that he raised the issue of Mr. Taylor
thrusting his crotch at the students, but Mr. Taylor took the
position that he only put his legs on the table.
Mr Mack said it was management's view that Mr. Taylor
demonstrated a lack of judgment in inviting the boys to see the
turtles at his home. Management said it had no evidence of any
ulterior motive.
Mr. Mack's notes of the meeting also reflected
allegations by Mr. Lewis and Mr. Moore of Mr. Taylor striking Mr
Moore on the head, tolerating gross comments by Mr Moore on his
bowel movements in front of the students, engaging in what the
students called a 'verbal slugfest' with Mr. Moore. Mr Taylor
said he tapped Mr. Moore on the head as a joke Mr Taylor's view
was that most of the shouting had been done by Mr Moore, but
~
.
"-
Page 33
admitted to raising his voice against Mr. Moore in other
situations out of frustration with Mr Moore. Mr. Mack accepted
Mr. Taylor's contention that Mr. Moore was a difficult person to
work with
The report to the Deputy Minister from the Hearing
Officer was filed as an exhibit, but was incomplete and did not
contain the appendic.es, which included Mr. Tayl.or ' s responses.
The Hearing Officer found that Mr. Taylor failed to take direct,
timely and appropriate action on evidence of acts of harassment
and discrimination by Mr. Moore, that Mr. Taylor's personal
conduct and lack of appropriate action contributed to a poisoned
work environment, that he misjudged the seriousness and the impact
incidents had on the environment, but that he had acted
responsibly when allowing children to see his turtles
unaccompanied by an adult, and that he had acted responsibly and
reasonably with respect to an aspect of fish management.
After the hearing, the Ministry, on the recommendation
of Mr. Mack and Holder, to the Hearing Officer, removed Mr
Taylor's supervisory responsibilities and placed him in an Acting
position of Project Coordinator, Ottawa River Fish Studies in the
District Office, continued to withhold his merit increase and gave
him a ten day suspension. Mr. Taylor was advised of the decision
by letter dated April 14, 1993 from Mr. Holder.
Mr. Moore's Medical Hist.ory
Mr. Moore stated that he had had a mental breakdown in
the mid seventies with the breakup of his marriage. In 1974, he
was taken from the hatchery to the hospital, where he stayed for
approximately two weeks. He was diagnosed as having physical and
mental exhaustion. He also had a severe case of mononucleosis in
1974 or 1975, which incapacitated him for most of the fall. Mr.
Moore stated that he had been subsequently told that he had
~
'.
!.
Page 34
alcoholic hepatitis, although there was no evidence of it. He
also had surgery on his throat several times in the eighties.
After the surgery, he saw Dr. Brown in 1980 and 1981 for
depression, anxiety and suicidal tendencies, and then saw him
regularly every two or three weeks for a little more than one
year. He saw him again for one month in 1987-1988 for anxiety and
panic attacks.
His family doctor had been Dr. Dooley Sr. and then later
Dr. Dooley Jr. Mr. Moore saw his family doctor, Dr. Dooley Jr. on
August 4, 1992, the day he took sick leave. He told Dr. Dooley
that he could no longer take the situation at work, that he was
not sleeping, that he was depressed, had lost his appetite. He
wanted to see a psychiatrist as he felt depressed, anxious, and
was completely out of control and needed help, but did not want to
return to Dr. Brown. Dr. Dooley prescribed Valium for him and
referred him to a psychiatrist, Dr. Simson. Mr Moore then only
saw Dr. Dooley when he needed medical notes to continue to receive
his sick leave benefits. After August 28, 1992 Mr. Moore said he
continued to get medical attention through his visits with Dr
Simson.
Mr. Moore saw Dr. Simson regularly in the following
three years. Initially, he saw Dr. Simson once a week, then once
a month, and at the time of giving evidence, once every six weeks.
Mr. Moore told Dr Simson that he felt that he was
surprized that Mr. Lewis had made a complaint. He told Dr. Simson
that the whole atmosphere was sick and had become sicker under Mr
Taylor's management, and that he felt he had been singled out.
He also told Dr. Simson that he also could not stop drinking.
Although Mr. Moore was unsure and gave a variety of dates as to
when he told Dr. Simson about the abuse by his parents and about
his teenage experiences, Dr. Simson confirmed that he had been
told in the fall. Both past histories were causing Mr Moore
problems.
~t
.
i' ~
Page 35
Dr. Simson testified that Mr. Moore only talked briefly
of alcohol consumption in the first session. It was dealt with
more extensively later on. Mr Moore had told him that he had
been out of control for two years and acknowledged that his
behaviour was inappropriate, but that he could not stop it. He
knew that it was wrong, and was increasingly concerned about the
consequence in the workplace..
As of December 14, 1992, Mr. Moore began to see a
counsellor Candace O'Neil in Pembroke He saw her each day during
that week. On Friday, December 18, 1992, Candace O'Neil put him
in the Pembroke Civic Hospital for detoxification. Mr. Moore
testified that he has not had a drink since then. He was at
Pembroke Civic Hospital for sixteen days and was released just
prior to New Year's Day. During his hospital stay, he was kept on
the ward, except to attend Alcohol Anonymous meetings, which he
started on December 19, 1992.
Mr. Moore said that he was a closet alcoholic, but has
had an alcohol problem since his early teens. He described a long
history or heavy drinking. Mr. Moore testified that he began to
drink more heavily in 1990 to 1992 to the point of drinking almost
continuously. He could not go three or four hours without
drinking. He would start his working day with two ounces of vodka
and coffee and would drink a dozen or more bottles of beer on a
work day. On the weekends, he and his wife could consume two
cases of beer a day. Before he stopped drinking, on December 18,
1992, he and his wife were consuming forty to sixty cases of
twenty-four beers, a month. He would also drink moonshine which
he obtained from his relatives. Although he said that he had been
thinking of getting help since his vacation in June 1992, during
which he drank excessively, he did not make the decision to seek
treatment until wednesday afternoon of July 29, 1992, when he told
Mr. Taylor that he needed to get help.
~
.
~ .
, ~
Page 36
Mr. Moore did not dispute that the effects of alcoholism
were not noticed by his co-workers notwithstanding the volume of
alcohol that he was consuming a day. He did say however, that Mr
Lewis would have been aware of him drinking. Mr. Moore said he
did consume to excess in some work social functions and part of
the reason that he did not go to all of Mr. Taylor's barbeques was
that he was aware that he would drink to excess.
Candace O'Neil was not called as a witness as she no
longer lives in Ontario. Mr Moore said he told Ms. O'Neil that
he had been a daily drinker for over twenty-years and drank eight
to ten standard drinks a day. Mr. Moore said he told her that in
1990 to 1991, he began to have flashbacks and memories of child
abuse. The YY incident also brought back memories of sexual abuse
by men in their late teens to early twenties when he was young.
Mr. Moore told 0' Neil that he had been abused as a child both
physically and emotionally.
Mr. Moore first began seeing Dr. Wilson, the Director of
the Addiction Treatment Services, for anxiety, depression and his
alcohol problem on January 4, 1993. Commencing March 8, 1993, he
attended an inpatient program at the Meadow Creek Addiction
Treatment Centre through the Royal Ottawa Hospital for Alcohol and
Drug Addiction. At the Royal Ottawa Hospital, he underwent a
battery of physiological tests. He also saw by Dr. Grymala, and
saw Dr. Balamaceda on two occasions to rule out any pathological
sexual problems.
In June 1993, Mr. Moore attended the Sexual Assault
Crisis Centre at the Pembroke Civic Hospital, and after two intake
interviews started one-to-one therapy in late September 1993 with
Carol Mr. Moore (no relation), or Lisa Clarke. They also referred
him to treatment for sexual abuse by a men's group in
approximately April 1995, which he was attending at the time of
giving his evidence. He has also read many articles on the issues
of sexual abuse and alcoholism
~
.
,) !
Page 37
Mr. Moore expected that he would only need further
treatment with Dr. Simson to approximately February 1996, but had
no basis upon which to make this conclusion. Mr. Moore expected
that he would need long term treatment of three to five years for
the effects of the sexual abuse and would always have to continue
to fight alcoholism. Mr. Moore stated that he will continue to
seek treatment in order that he will not go back to drinking.
Initially, he attended AA meetings five times a week and at the
time of giving evidence was going two to three times a week. He
has two sponsors.
Mr. Moore testified that he had gone into trances from
time to time over his lifetime, sometimes for hours. During those
periods of time he could not recall what had happened. He
testified that although he was alarmed at first he shrugged it
off. He stated that he told Dr. Simson, Dr. Dooley, Carol Moore,
the sex abuse counsellors, and Dr. Balamaceda.
Dr. Simson testified that he saw Mr. Moore for the first
time on August 28, 1992. Up to his testimony, he had seem him
approximately 38 times each for an hour or an hour and a half He
was referred by Dr. Dooley, who advised him that Mr. Moore was
suffering from anxiety, depression and that he had a problem with
sexual harassment in the workplace. He was anxious, depressed and
had entertained thoughts of suicide. Dr. Simson said that Mr
Moore did not physically manifest symptoms of chronic alcoholism
However, due to the information that Mr. Moore gave him, he
referred him to Renfrew County Alcohol and Drug Referral
Assessment Service, Candace O'Neill, for assessment and treatment,
as the problem with alcohol has to be treated first.
Dr Simson also referred Mr. Moore to the Royal Ottawa
Hospital Alcohol and Drug Referral service, where he was assessed
by Dr. Wilson. In the meantime, in the fall of 1992, he stated
that Mr. Moore was suffering from serious anxiety and depression
~ ~
.
, .
.. ~
Page 38
with suicidal ideation. Dr. Simson felt that he had a chaotic
sense of sexual identity. He felt that there was an association
between Mr. Moore's childhood experiences and the jokes that he
made and his behaviour. Dr. Simson ranked his problems in order
of most important to least important, as depression, anxiety,
alcoholism and substance abuse, by which he meant double doctoring
to obtain tranquillizers, lectopam and diazapam, which Mr. Moore
said when mixed with alcohol consumption, created a trancelike
state for him.
Dr. Simson said that in the three years that he has seen
him Mr. Moore has worked hard on his recovery, has abstained from
alcohol, has not been on medication, has attended AA regularly,
had has attended sexual counselling in Ottawa and Pembroke. In
September 1995, when Dr Simson gave his testimony, he had not
anticipated any particular point in time for the completion of his
treatment. Mr. Moore still had a future appointment to see him.
He had seen Dr. Simson less frequently in the past year.
Employer Argument
Employer's counsel argued that the issue is not whether
there is just cause to discharge the gr ievor as the Union had
agreed that the actions of the grievor constituted just cause for
dismissal, but whether the Union had proven whether there were
mitigating factors which would justify substituting a different
penalty.
Employer's counsel argued that as in Re Out.board
Marine Corp. of Canada Lt.d. and Unit.ed St.eelworkers, Local
5009 4 L.A.C. (2d) 82 (Reville) and followed in Re pavaco
Plast.ics Inc. (Hemat.ic Manufacturing Division) and
Amalgamated clothing & Textile Workers union 21 L.A C (4th)
312 (Whithead) the Board ought not to interfere with management's
~
.
~ ~ ..,
Page 39
decision unless the management has acted in an arbitrary,
discriminatory or otherwise unreasonable manner. The onus is on
the grievor to establish that the extenuating circumstances
sufficiently outweigh the gravity of the offence. Employer's
counsel argued that the Union had failed to discharge this onus.
Employer's counsel reviewed and considered the
mitigating factors set out in Brown and Beatty. Employer's
counsel argued that the only mitigating circumstance was his
lengthy 23 years of service, but that should not stand alone to
reduce the penalty.
Employer's counsel submitted that the Mr. Moore's
conduct was not an isolated incident, nor was it spur of the
moment, as it was apparent from Mr. Lewis' evidence that the
conduct had gone on over a number of years.
Employer's counsel argued that Mr. Moore was aware from
the sexual harassment seminar not to make comments, but did not
change his conduct. Employer's counsel submitted that he had many
opportunities to apologise and never has done so even to this
date, and therefore the apology factor cannot be taken into
account in the mitigation of the penalty.
Employer's counsel submitted that as the gr ievor met
with the investigator and the Union agreed that the report
reflected his comments, the grievor had full opportunity to
provide his account and explanation and therefore the failure of
the Employer to give Mr. Moore the opportunity to explain or deny
the alleged offences is not applicable here and cannot be
considered in the mitigation of penalty.
Employer's counsel argued that the grievor's record was
not a clean record and should not operate to the grievor's
benefit. He had received a warning not to use profanity, a
warning concerning his AKA 47 comment and its inappropriateness
!.
..
oS ~
Page 40
and a warning not to make comments about the hatchery manager, Mr.
Taylor.
Employer's counsel argued that the key issue raised by
the Union was the uneven level of discipline' meted out to Mr.
Taylor and to Mr. Moore. Employer's counsel submitted that this
case concerned Mr. Moore's behaviour and not the behaviour of
others. In any event, she submitted that there was no comparison
in the behaviour of the two men and that there was no evidence
that Mr. Taylor should have received any different discipline.
Mr. Taylor received a penalty commensurate with his conduct. He
did not receive a merit increase, was demoted and received a ten
day suspension. Mr. Taylor's behaviour did not compare to Mr.
Moore's such that Mr. Taylor ought to be discharged.
Employer's counsel argued that there was insufficient
consistent evidence to find that the working relationship should
work as a mitigating factor. Mr Moore agreed that the work
environment did not cause his behaviour. Employer's counsel asked
the Board to draw the inference that Mr. Moore resented Mr. Taylor
successfully obtaining the hatchery manager position, which Mr.
Moore had previously held. This led to a situation in which Mr.
Moore was constantly assessing Mr. Taylor to determine if there
was evidence to 'go downtown'.
Employer's counsel argued that although we only have
hearsay evidence of the YY incident, Mr. Taylor did confess to
management of inappropriate behaviour. Management dealt with Mr.
Taylor, even though YY did not want to lay a complaint. She
argued that Mr. Moore knew of the incident, but only raised it
when there was a possibility that he would be disciplined. She
argued that the union could not b~ critical of management for not
acting on the YY incident, when the grievor did nothing with the
information that he obtained. Similarly, Mr. Moore did not raise
the issue of Mr. Taylor inviting the young boys to see the
turtles, and the receipt of the 'Death and Horror" flyer, until
!.
.
, .
" ~
Page 41
/
Mr. Moore was confronted with his own allegations. The Union
cannot be critical of management for not taking steps against Mr
Taylor; when Mr. Moore knew, but did not feel that he had enough
evidence to act upon.
Employer's counsel argued that there were no
circumstances which negatived intent. Employer's counsel argued
I that the Union could not rely on post discharge evidence of
alcoholism and Mr. Moore's treatment, as post dismissal evidence
I was not relevant to the issue as to whether there was just cause
to dismiss the grievor (Compagnie Miniere Quebec Cartier v
I United Steelworkers of America, Local 6869 and Rene Lippe
S.C.R. , July 20, 1995; Ontario Secondary School Teachers'
Federation et.. ale v. Lincoln County Board of Education
Court file 20/95 Ontario Court of Justice (General Division)
Divisional Court (September 18, 1995). Employer's counsel
submitted that at the time of discharge, the Employer did not have
any medical evidence which linked the grievor's workplace
behaviour to any of his conditions. The notes from Dr Dooley of
August and September 1992 gave no reasons for the medical absence.
It was not until Dr. Dooley's note of October 27, 1992 that the
Employer learned of Mr. Moore's anxiety and depression. She
argued that even in Dr. Sims,on's report to Mr. Haggett, Dr.
Simson linked anxiety to an alcohol problem, but did not link any
behaviour in the workplace to an anxiety disorder, nor was there a
link between alcohol and the workplace behaviour. Therefore
Employer's counsel, argued on the basis of the Compagnie Miniere
Quebec Cartier decision, that, as there was no evidence at the
time of the discharge that linked any medical condition to his
workplace behaviour, such evidence could not be relied upon.
Employer's counsel argued that the Employer has to have
knowledge of the illness while the grievor is employed. As in
Compagnie Miniere Quebec Cart.ier the Employer does not have to
carry the burden of illnesses that become apparent after
dismissal.
~
~
c;: !.
Page 42
Employer's counsel further argued that the Union did not
establish that Mr. Moore merited a diagnosis of alcohol
dependence. Employer's counsel argued that there was no evidence
in the workplace, that the grievor had any dependence on alcohol.
None of his coworkers were aware of any alcohol problem. There
was no evidence of excessive drinking in social gatherings.
Employer's counsel argued that if Mr. Moore was drinking in the
morning, at lunch, and at dinner, as he asserted, someone would
have suspected him of drinking.
Employer's counsel argued that the principles set out by
the British Columbia Court of Appeal in Faryna v. Chorny [1952]
2 D.L.R. 354 and adopted by this Board in OPSEU (Tyler) and The
Crown in Right of Ontario (Ministry of Community and
Social Services) G.S.B. 428/84 (Swan) should be applied when
considering the credibility of the witnesses.
Employer's counsel argued that the Employer's witnesses
ought to be preferred. Employer's counsel urged the Board to find
that as a result of the inconsistencies in the grievor's evidence
that the grievor was not credible and his evidence could not be
relied upon. Certain evidence had no corroboration and other
corroborative evidence that was promised did not materialize.
Employer's counsel further submitted that no remedy is given to a
grievor, where a grievor is found to not be truthful.
Employer's counsel argued that what Mr Moore told the
Board on his medical condition differed from what he told the
doctors. Therefore the doctor's evidence and reports cannot be
relied upon. Employer's counsel argued that the Board is not
compelled to accept medical certificates as having unquestionable
medical value. (OPSEU (Stacey) and (Ministry of Correctional
Services G.S.B. #818/84; 820/84; 821/84 (Knopf) which relied on
Jones. and Treasury Board which held that medical certificates
are not dispositive when they were not based on all relevant
~
,t
~ Page 43
information Employer's counsel argued that the physiological
tests taken by Mr. Moore, can be explained by other factors.
Therefore, Employer's counsel argued that the Union did not
discharge its onus of either proving Mr. Moore's consumption, or,
if so, failed to prove that there was any causal link between his
drinking and his behaviour.
Employer's counsel disputes the grievor's evidence that
he went into trances. The grievor said that it sometimes occurred
for minutes and hours, and yet he never received medical attention
for the trances. Mr. Moore said that he told Drs. Simson, Dooley,
and Balamaceda, sex abuse counsellors, and yet it was only Dr.
Simson that could recall being told. Dr. Simson then attributed
the trances to double doctoring, but there was insufficient
evidence to conclude that Mr. Moore was double doctoring. Mr.
Moore never testified to it and Dr. Simson believed that Mr. Moore
had been doing it for several years with lectopam and diazapam.
Employer's counsel attacked the doctors' diagnosis.
Employer's counsel argued that the doctors were not clear if Mr.
Moore was intoxicated while the behaviour occurred, or whether he
was under the cumulative effect of alcohol. Both Dr. Wilson and
Dr. Simson were told that he drank weekends and evenings and did
not drink at work.
Employer's counsel argued that Dr. Wilson's evidence was
flimsy as he did not spend much time with Mr. Moore and that he
changed his diagnosis from alcohol abuser to alcohol dependent.
Mr. Moore never testified that he had attempted suicide
on three occasions, the only place that it was appeared was from
an intake interview by Mr. Holmes, a counsellor. Employer's
counsel argued that it would be illogical for suicidal tendencies
to exist, and yet none of the doctors be aware of it.
Employer's counsel disputed the diagnosis of depression.
~
.
, ~
Page 44
Employer's counsel argued that although Dr. Simson ranked
depression as the first diagnosis, he stated that depression does
not manifest itself through sexually harassi:ng behaviour
Similarly, Dr. Simson stated that anxiety disorder does not cause
sexual harassing behaviours. Dr. Simson also agreed that there
was room to question that diagnosis, as he had no ability to
review the hospital reports.
Employer's counsel argued that the only diagnosis of
Adjustment Disorder came from Dr. Wilson and there was a
difference in opinion between Dr. Wilson and Dr. Simson if there
could be two disorders at the same time. Dr. Wilson said the
identifiable stressor was being fired or being charged with sexual
assault. This is different from Dr. Simson who related the
problems to Mr. Taylor and the YY. In any event, Employer's
counsel submitted that none of the doctors could say that any of
the diagnoses caused Mr. Moore's behaviour. The closest
connection came from Dr. Wilson who said the collection of Mr.
Moore's problems had a bearing on Mr. Moore's behaviour.
Employer's counsel argued that the Union has not proved
that there were any medical circumstances that negatived intent
Employer's counsel submitted that furthermore, there was no
evidence at anytime that Mr. Moore's medical condition if
accepted, caused his workplace behaviour. Dr. Simson saw the
grievor the most, and that was only 48 hours over three years
The reports could not be relied upon as the information concerning
his medical history, his family relationships and his drinking
habits varied between what he told the doctors and what he told
this hearing. She argued that while the physiological tests were
not inconsistent with the grievor's claim of alcohol consumption,
they were not probative. They were also consistent with the
Employer's suggestion that they were consistent with a person
drinking heavily over a three to four month period or with a
person having other physiological problems. None of the medical
reports received, even those received after the proceedings were
~
.
"~ ~
Page 45
initiated proved that there was any medical basis that caused his
workplace behaviour Employer's counsel submitted that the Union
did not discharge its onus to prove mitigating circumstances
Employer's counsel relying on Canadian Union of
Postal Workers and Canada Post (February 11, 1992)
(W.W.Thistle) argued that alcoholism, post traumatic disorder or
depressions cannot ipso facto be considered as mitigating
circumstances. Sexual harassment can be committed without these
disorders and no causal relationship was shown.
Employer's counse~ submitted that the Employer believes
that the identifiable stressor on Mr Moore was the reorganization
of the workplace in 1992 and Ris harassment charges. It was not
the yy incident, nor the repression of memories. Dr. Wilson
identified the stresses as being fired and being charged with
harassment. The doctors' diagnoses therefore were based not on
actions occurring during the course of employment but by the
harassment charges, which were made as a result of Mr. Moore's
actions, and were caused by his termination.
Employer's Counsel argued that sexual harassment is an
offence taken seriously by the Union and the Employer. The
importance of employees to be free from sexual harassment is seen
in the government's policy on Workplace Discrimination and
Harassment Prevention. Sexual harassment is a serious offence
under Ministry policy.
The parties have also negotiated protection for the
employees in article 27.10.1 of the collective agreement. Article
27.10.1 states:
27.10.1 All employees covered by this Agreement
have a right to freedom from harassment
in the workplace because of sex by his or
her Employer or agent of the Employer or
by another employee. Harassment means
engaging in a course of vexatious comment
~
.
~
Page 46
or conduct that is known or ought
reasonably to be known to be unwelcome.
In opposition to the union submission that the grievor's
discharge unjustly precluded the grievor from applying for LTIP,
the Employer submitted that this principle has not been accepted
by the Grievance Settlement Board (OPSEU (FOwler) and Ministry
of Government Services G.S.B. #0443/85 (July 6, 1987)
(Gorsky), OPSEU (S. Krishnamu-rt.hy) and Ministry of
Government Services G.S.B. #1479/87 (Ratushny) and has not been
universally accepted by arbitrators in the private sector as in Re
Canada Packers Inc. and United Food & Commercial Workers,
Local l14P 20 L.A.C. (4th) 92 (Solomatenko). Employer's counsel
submitted that it has been sometimes applied in cases for
discharge for innocent abse~teeism, in which case there is no
fault on the part of the employee. Employer'S counsel submitted
that this principle is not applicable to cases where an employee
is discharged for cause. Discharge for cause is fundamentally
different from the loss of employment as a result of layoff or for
innocent absenteeism, as discharge for cause is attributable to
the actions of a person which caused the employment relationship
to cease. The person at fault is no longer abler to receive the
benefits that flow from the collective agreement.
Employer'S counsel argued that the Union has to show
that the grievor was not entitled to benefits. Notwithstanding
the insurance company's position, which denied the grievor
coverage after he made his application on May 3, 1993, Employer'S
counsel argued that under the terms of article 42.5 which states:
Long Term protection benefits commence
after a qualification period of six ( 6 )
months from the date the employee bec9mes
totally disabled, unless the employee
elects to continue to use accumulated
attendance credits on a day-to-day basis
after the six (6) month period.
the benefits should continue if the person is totally disabled on
~
.
,i' ~
Page 47
the date of termination and is not based on whether an application
was made prior to termination. Employer's counsel disputed the
position taken by the insurers.
Employer's counsel argued that it was not the Ministry's
fault that the grievor had not applied for long term disability
before his termination. He did not need to get the application
form from the Employer - Mr. Moore eventually obtained the
application from the Union in April 1993. Mr. Moore agreed that
there was nothing to prevent him from getting the forms earlier.
Employer's counsel submitted that if there was
alcoholism, the evidence does not establish that it had a bearing
on work place activities. Any conclusion that Dr. Simson made
about its connection, cannot be accepted as credible as it was
based upon information given to him by someone who was not
credible.
In summary; Employer's counsel submitted that Mr
Moore's actions were sexually explicit and offensive and occurred
over a long period of time. Mr. Moore's behaviour occurred in the
presence of young students, for whom he should have been an adult
model. The behaviour occurred in a fairly isolated area. Mr
Moore did not have a clean work record, and did not heed warnings
given to him. Furthermore as in the unreported decision of the
Manitoba Court of Queen's Bench University of Manitoba and the
Canadian Association of Industrial, Mechanical and Allied
Workers, Local ~ case, the behaviour of others is not relevant
to a finding on the grievor's culpability. She argued that even
if the conduct of others were considered, the grievor minimized
the allegations, was hostile to others, never considered the
effect that his behaviour had on others He has instead portrayed
others, as controlling him or attempting to get him, or being
compliant with his actions. He has taken a victim's view of his
haras.sment and has not owned up to his actions. His only
mitigating factor was long service, which does not outweigh his
~
.
...~ ~
Page 48
behaviour.
Union Argument
The Union conceded that Mr. Moore's conduct constituted
sexual harassment, but argued that Mr. Lewis' and Mr. Taylor's
actions were part of the culture which was ignored by the
Employer. Union's counsel submitted that it has been the Union's
position from the first day of hearing that there was an extremely
poisoned work environment.
Union's counsel argued that the number of factors that
contributed to poisoned work environment was to be viewed not to
lessen the grievor's responsibilities for his actions, but to
illustrate the inequality of treatment. Although the Employer is
not on trial, the Employer'S approach reflects an unwillingness to
understand what was going on, and a failure to understand and
address the source of the problems The Ministry was trying to
protect its own image, by taking the position that it did nothing
wrong and was looking to make Mr. Moore a scapegoat. The only
wrong it acknowledged, was, that Mr. Taylor was a poor manager.
Union's counsel submitted that the environment that had
existed for some time was not Mr. Moore's fault and he was not the
only one involved. However, Mr. Moore has been the only person
that has admitted a proper level of responsibility. The grievor
has admitted from the first day of hearing that he played a
significant role in the poiSoned work environment. The role that
he played is evidenced by what he told the investigator, and in
the agreement that he reached with the Employer during the course
of the hearing.
Union's counsel submitted that it was not disputed that
there was a male culture generally. There was an extremely
~
.
,~ ~
Page 49
unhealthy relationship between Mr. Taylor and Mr. Lewis and Mr
Moore. Mr. Taylor was not able to garner respect from his
employees, and could not set boundaries of acceptable actions
given the YY incident, that he invited teenagers to his house to
drink beer, and his tendency to discuss sexual exploits. These
factors he submitted were relevant to understand what was
acceptable in the workplace.
union's counsel submitted that Mr. Moore and Mr. Lewis
made serious allegations that Mr. 'Taylor made sexual advances to a
male student. The Employer's reaction was to discipline Mr. Moore
and Mr. Lewis, and it did not even investigate the allegations
until after Mr. Moore was suspended.
Union's counsel submitted that Mr. Johnson, who was a
mid level manager, and Mr. Mack to some extent, believed that Mr
Taylor was being disciplined for being a poor manager, and not
controlling Mr. Moore, and not for his own participation in the
environment. Union's counsel submitted that Mr. Lewis was not
disciplined for his actions but was transferred to North Bay
This result indicates that the Employer did not realize what
constitutes sexual harassment and what was required to bring this
workplace into the twentieth century.
Union's counsel submitted that the management's actions
must be considered in relationship to the medical issues. Union's
counsel submitted that Mr. Moore was a chronic alcoholic who
suffered serious psychological reactions as a result of alcohol
and child abuse. Union's counsel submitted that the Employer knew
or ought to have known of his condition. Management had a duty to
inquire about Mr. Moore's medical condition. The Employer had
medical reports from Drs. Simson and Dooley prior to the
discharge, which indicated that Mr. Moore was ill and was
suffering from a disability. Mr. Mack contacted Dr Simson only
to determine if Mr. Moore was a danger, Mr Mack deliberately
chose not to inquire into his medical condition.
-
>'
.-
Page 50
Union's counsel submitted that the grievor was told that
he was not to contact anyone in the workplace, and culminating in
the letter of November 3, 1992. To do so would have brought
police charges. Therefore any suggestion that his failure to
apologise cannot be held against him. However, Union's counsel
submitted that the "agreement" between the Employer, the Union and
Mr. Moore ought to be considered not as an ag~eement, but as an
agreed statement of facts or as an admission by Mr. Moore of his
actions, to shorten the proceedings and to avoid the necessity of
calling the students. The admission, he submitted ought to be
considered as a mitigating factor in the same manner as would an
apology.
Union's counsel submitted that the Employer, by its
actions, was attempting to make a monster out of Mr. Moore by
emphasising his jokes and suggesting that he was a danger to
others, by giving the employees a day off for their own safety,
when it was firing the grievor. The Employer did not press the
danger issue as there was no evidence to support its position.
However, the allegation itself emphasizes that the Employer was
attempting to portray Mr. _Moore as a monster.
Union's counsel submitted that it is well established
that where there are a number of employees involved in the
incident the Employer must exhibit some sense of equality and
there cannot be a gross disparity in discipline ( Re Etobicoke
General Hospit.al and Ontario Nurses' Association 15 L.A.C.
(2d) 172 (Brandt); Re Powell River General Hospital and
British Columbia Nurses' union 46 L A.C. (4th) 177
(McPhillips); Re Magic pant.ry Foods and Bakery,
Confectionery & Tobacco Workers, Local 264 10 L.A.C.
(4th)327 (O'Shea); Re Oshawa Group Ltd. (Ont.ario Produce
Co. , Oshawa Foods Division) and Teamsters Union, Local 419
33 L.A.C. (3d) 97 (Knopf)). Union's counsel submitted that the
actions of Mr Lewis and Mr. Taylor should have come under
~
..
,~ ;.
Page 51
scrutiny. Their actions ought to have been construed as
inappropriate sexual behaviour. Mr. Lewis however was not
disciplined for being a participant in the offences, but was
disciplined for warning the students to stay away from Mr. Taylor.
Mr. Bonenberg took the position that he only knew that Mr. Taylor
showed a 'video' on Mr. Taylor's admission and that he knew of no
advances. He said that he issued a disciplinary letter. The
Union suggested that it was not a disciplinary letter as it
complemented Mr. Taylor on the job he was doing, and the warning
that he received was removed f rom his record after six months.
Union's counsel submitted that although YY did not want to lay a
complaint, the Employer could have relied on the Mr. Lewis and Mr.
Moore on these issues.
Union's counsel submitted that if there are areas where
credibility has to be assessed, credibility has to be assessed on
the basis of all the evidence and how it fits with the
probabilities of the events occurring as stated. Union counsel
agreed that Faryna v. Chorny (supra) is the applicable case and
it has been endorsed in Re I.M.P. Aerospace components Ltd
and United Steelworkers of America, Local 4883 45 L.A.C.
(4th) 363 (Outhouse) . The material evidence that establishes
mitigating factors is either not contradicted or not in dispute
He submitted that the inconsistencies can be attributed to the
passage of time.
Union's counsel argued that there should be no adverse
inference drawn for not calling evidence arising from Mr. Lewis'
evidence, as after Mr. Lewis had given evidence the parties
reached an agreement on Mr. Moore's admissions, to shorten the
hearing and which would have made the calling of these witnesses
unnecessary.
Union counsel by applying the definition of sexual
harassment in Janzen et.. ale v. Plat.y Enterprises Lt.d;
Women's Legal Education & Action Fund (LEAF), Intervener
-
:>
.,. !
Page 52
59 D L R. (4th) 352 (S.C.R.) (Dickson C J. C . ) accepted that the
level of banter that was prevalent at the hatchery constituted
sexual harassment. He submitted that the actions are serious,
even though certain behaviour was considered acceptable.
Union's counsel submitted the conduct of others is
relevant in assessing the conduct of the grievor. As in Grace
Aragona v. Elegant Lamp Co. and A. Fillipitt.o CHRR
paragraphs 9719- 9765 vol. 3, Decision 223 (Ratushny) November 20,
1992, in which the ,Board considered the banter and conduct of
others, in which the employees enjoyed the atmosphere and some
Ugave" as much as they took.
Union's counsel, relying on the case of Re Ottawa
Board of Education and Ottawa Board of Educat.ion
Employees' Union 5 L.A.C. (4th) 171 (Bendel), distinguished the
approach which was taken in Human Rights cases which are based
upon attempts to eradicate discrimination and therefore not based
upon intent of the perpetrator of the offensive actions, and the
approach taken in discipline cases where the focus is on the
culpability of tne grievor. Union's counsel submitted that as
culpable behaviour is based upon intent, the cases relating to
alcoholism are relevant.
Union's counsel argued that under Compagnie Miniere
Quebec Cartier (supra) all medical evidence that speaks to the
condition, disability or behaviour, even if it was discovered
after the discharge is both relevant and admissible. Therefore,
if the evidence relates to the grievor's culpability and condition
at discharge it is admissible. He argued that the Employer's
position that boards of arbitration are limited to the information
that the Employer had at the time is both wrong and
unsubstantiated by arbitral jurisprudence.
Union's counsel further argued that compagnie Miniere
Quebec Cartier does not have application as the Quebec
-
,
~ i
"
Page 53
constituting statute limited the jurisdiction to determine whether
there was just cause. The Crown Employees Collective
Bargaining Act (CECBA) has given broader parameters to a board
of arbitration which has the jurisdiction to find just cause and
then substitute a lesser penalty. He urged that the Board follow
the reasoning of Communications, Energy and Paperworkers
Union of Canada and Bell Canada (September 22, 1995) (Devlin) ,
which distinguished the limiting jurisdiction of the Quebec Labour
Code from the broader jurisdiction of the Canada Labour Code and
the collective agreement. In the same vein, Union's counsel
submitted that the jurisdiction under Crown Employees
Collective Bargaining Act s. 19(3)) and the Labour Relations
Act s 45(9) as they existed at the time of discharge, provides
boards of arbitration the jurisdiction to apply lesser penalties
even where there is cause
Union's counsel argued that the Employer tried to
suggest that the Union has not met its burden of proof with
respect to the medical evidence by failing to establish that the
grievor had a medical condition and failing to show a causal
relationship between his condition and his behaviour. Union's
counsel argued that the Union has brought medical evidence and has
called medical experts to give viva voce evidence at the request
,of the Employer and yet the Employer did not bring any expert
forward to refute the findings of the Union's experts. Employer's
counsel merely cross-examined the doctors and suggested that their
findings could be consistent with other findings
Dr. wilson is the Director of Addiction Services at the
Royal Ottawa Hospital. He was accepted as an expert on alcohol
addiction, without objection by Employer's counsel. His
credentials are beyond reproach and part of his duties is to run
Meadow Creek, which is one of the foremost programs in North
America. Dr. Simson has treated the grievor over a long period of
time and his credentials were unchallenged. The Union's medical
evidence was presented viva voce and was subjected to cross-
~
..
~ .
"
Page 54
examination on various theories and inconsistencies, but not one
doctor changed his diagnoses. Uhion's counsel submitted that
particularly the case of Air Canada and Internat.ional
Associat.ion of Machinists, Lodge 148 7 L.A C. (4th) 194
(Hope) was useful in demonstrating how the board treated
uncontradicted medical evidence. In Air Canada (supra) the Board
points out that that there must be some basis to reject medical
evidence where it is not challenged by other medical evidence,
especially in complex cases. A similar position is taken in
Municipality of Metropolitan Toronto and Metropolitan
Toronto Civic Employees Union, Local 43 4 L.A.C. (4th)
( Kennedy) .
The union requested that an adverse inference be drawn
against the Employer, in that it was unable to produce any expert
to contradict the Union's evidence. At no time did the Employer
ask the grievor to undergo independent medical tests, even after
the Employer had most of the medical reports two months prior to
any evidence being led.
Union's counsel submitted that the medical evidence was
unshaken. Although Employer counsel suggested that the medical
tests could be consistent with a diagnosis that Mr. Moore started
chronic drinking in August, there is no foundation for this
position. The Union's evidence is consistent that Mr Moore's
alcoholism was long-standing and chronic. Employer's counsel
appeared to suggest that all medical evidence must point to one
conclusion such as the principle is stated in the Hodge's Case
1938), 2 Lewin 227, 168 E.R. 1136 (Assizes) quoted at p. 85 of Re
Air Canada and International Association of Machinists &
Aerospace Workers (Beaulieu) 40 L.A.C. (4th) 80 ( Bird) .
However, Union's counsel submitted that that view is no longer
prevalent and circumstantial evidence must be weighed and balanced
as any other evidence. The evidence must be looked at as a whole
to conclude what findings it is most consistent with. The
evidence, even in its inconsistencies, such as how much he drank,
I
I,
~
.
~ .
~
Page 55
whether or not his wife had stopped drinking is in any event
consistent with a finding that he was a chronic alcoholic and was
spinning out of control. That is consistent with Mr. Lewis' ,
Dianna Lewis', Tyler Hoar's and Mr. Hood's evidence
In reviewing the cases of OLBEU (Creighton) and The
Crown in Right of Ontario (Liquor Board of Ontario) G.S.B
#1908/89 (Keller); OLBEU (Read) and The Crown in Right of
Ontario (Liquor Cont.rol Board of Ontario) G.S.B. # 1165/91
(Watters); OLBEU (Wells) and The Crown in Right of Ontario
(Liquor Control Board of Ontario) G.S B. #2/82 (Verity) ; Re
Cook and The Crown in Right of Ontario (Ministry of
Labour) 22 L.A.C. (2d) 1 (Swinton), OLBEU (HaweS) and The
Crown in Right of Ontario (Liquor Board of Ontario) G.S B.
#329/84 (Brent), Union's counsel pointed out that medical evidence
is relevant. Alcoholism has been looked at in both as a causal
factor or as a context for the misconduct. He argued that even
where there is doubt about a causal connection between medical
conditions and behaviour, it nevertheless sets a causal framework.
Union's counsel pointed out that the Grievanc~
Settlement Board has the power to reduce penalties where the
penalties have been found to be excessive and has done so, where
after balancing the employee's interests and the Employer's
interests finds that a working relationship can be reestablished
Union's counsel submitted that once the connection is
made between the medical condition and the behaviour, the Union
must establish that the behaviour is under control and is unlikely
to reoccur. Re Canada Post. Corp. and Canadian union of
Post.al Workers (External) 29 L.A.C. (4th) 440 (M.G. Picher) ;
Re Air Canada And International Association of Machinists,
Lodge 148 7 L A.C. (4th) 194 ( Hope) ; Re Municipality of
Metropolitan Toronto and Metropolitan Civic Employees
union, Local 43 4 L.A.C (4th) 336 (Kennedy) . Union's counsel
submitted that this is the case as regards Mr Moore.
~
.
, .
,. .
Page 56
Union's counsel submitted that an arbitrator can draw
adverse inferences where a party fails to call a witness on a
material point (Re Lethbridge General And Auxiliary Hospital
and Nursing Home District No. 65 and united Nurses of
Alberta, Local 120 40 L.A.C. (4th) 436 (Peterson) . He submitted
that adverse inferences must be drawn from the Employer's failure
to call Mr. Heerschap, Yarranton and Mr. Taylor. Mr. Lewis who
was the Employer's advisor and Mr. Moore testified that management
treated Mr. Taylor's comments as a minor indiscretion. He
submitted that this evidence must be accepted as Mr. Heerschap was
not called to testify differently. Similarly, the Employer failed
to call Yarranton who was either middle or senior management
before Mr. Mack who could have testified on the Employer's
handling of the YY incident. Further, Union's counsel submitted,
it ought to lead the Board to conclude that there was a poisoned
work environment that extended beyond Mr. Moore, and that there
were problems with Mr. Taylor, Mr. Lewis and Mr. Moore. Finally,
Mr. Ta~lor was not called. His evidence could have shed light on
his hitting Mr. Moore on the head, on the YY incident, on his
invitation to neighbourhood boys to see the turtles, drinking with
the students, and the barbeques where sexual exploits were the
topic of conversation. This evidence he submitted is central to
the Union'S case on inequality of treatment.
Union'S counsel submitted that the Employer had a duty
of care to provide Mr. Moore with the LTIP forms and to assist him
in completing the forms, it was not up to the Employer to
determine if the claim was valid. Union's counsel submitted that
the Employer knew that the gr ievor was sick as he was on sick
leave. It does not behove the Employer to say now that it did not
know that he was ill and that sick leave was easier than
suspending him. Union's counsel submitted that the Employer
refrained from giving Mr. Moore the forms as the Employer knew
that it was going to discharge the grievor He submitted that the
Board has uncontradicted evidence that Mr. Mack denied the grievor
.
.; .
Page 57
the forms. Union's counsel submitted that this situation is
almost analogous to Tarailo et al v. Allied Chemical Canada
Ltd. et ale 68 O.R. (2d) 288 (Holland J.).
Union's counsel submitted that the cases of Re De
Havilland Aircraft of Canada Ltd and United Automobile
Workers, Local 112 9 L.A.C. (3d) 271 (Rayner); Re Canadian
Broadcasting Corporation and Canadian Union of Public
Employees, Broadcasting Bargaining Units Conceil 18 L.A.C.
(3d) 317 (M.G. Picher); Re Queensway Hospit.al and Ont.ario
Nurses' Association 17 L.A.C. (3d) 9 (Swan) stand for the
proposition that an Employer is not able to dismiss an employee
for innocent absenteeism where the effect of the dismissal would
be to deny an employee benefits under LTIP or Long Term
Disability. Unions' counsel also submitted that they also stand
for the proposition that where an employee has been dismissed for
cause, or has been found to have committed a culpable act, the
eligibility for LTIP prevents the Employer from dismissing the
employee
union's counsel argued that an analogy can be drawn
between our case where the grounds for dismissal is based in part
on behaviour that is due to a medical condition, and innocent
absenteeism, such that the Employer cannot terminate an employee
and deprive him of his vested rights. Further, he argued that
where the Employer knew that there was a medical disability
present prior to the dismissal and knew or ought to have known
that there was a connection between the behaviour, and they knew
or remained wilfully blind, they are not entitled to dismiss the
grievor. They have a duty to assist the grievor. Union's counsel
submitted that as Mr. Moore was on sick leave and there were
medical reports, the Employer had a duty to make those inquiries.
what they did was the opposite Mr. Mack looked only at the
behaviour and ignored medical evidence.
~
i
i' ~
Page 58
Procedural Ruling
upon the request of the Union I am including in the
award, the reasons for the ruling which I made in the course of
Mr. Moore's cross-examination.
The Employer sought to cross-examine Mr. Moore using the
investigator's report and the notes and statements taken in
support of the report. The Union opposed the use of the
investigator's report, as it was a synthesis of information
obtained by the investigator and it was not a prior inconsistent
statement The Union opposed the use of the notes, and the signed
statement as the Union had sought production of the investigator's
report and the notes at the outset of the hearing and had only
obtained production of the report.
I allowed Employer counsel to use the report, as the
Union had agreed that the report as stated was an accurate
reflection of the statements made by the grievor. However, I
declined the Employer's request to use the notes, and the signed
statement by the grievor as the Employer had opposed the
production of such documents at the beginning of the hearing,
claiming that they were not relied upon and not relevant and as
such the Board did not order their production. To allow the notes
to be introduced and used for the first time, to cross-examine Mr.
Moore, would be too prejudicial to the Union. By the non-
production of the notes and the supporting documents and any
statements of the witnesses in support of the report, the Union
had lost the ability to cross-examine the Ministry's witnesses on
them.
Decision
-
.
~ .
.~
Page 59
Credibilit.y of t;he Wit;nesses
Employer counsel argued that there were many
discrepancies in the grievor's evidence and that when assessing
the credibility of witnesses, the Employer witnesses ought to be
preferred.
The guidelines to assessing the credibility of witnesses
have been articulated well in Faryna v. Chorny (supra) and is
applicable when reviewing the evidence of the witnesses in this
case. The Court states in part at page 357:
The credibility of interested witnesses,
particularly in cases of conflict of evidence,
cannot be gauged solely by the test of whether the
demeanour of the particular witness carried
conviction of the truth. The test must reasonably
subject his story to an examination of its
consistency with the probabilities that surround
the currently existing conditions In short, the
real test of the truth of the story a witness in
such a case must be its harmony with the
preponderance of probabilities which a practical
and informed person would readily recognize as
reasonable in that place in those conditions. Only
thus can a Court satisfactorily appraise the
testimony of quick-minded, experienced and
confident witnesses, and of those shrewd persons
adept in the half-lie and of long and successful
experience in combining skilful exaggeration with
the partial suppression of the truth. Again a
witness may testify what he sincerely believes to
be true, but he may be quite honestly mistaken.
For a trial Judge to say "I believe him because I
judge him to be telling the truth", is to come to a
conclusion on consideration of only half the
problem. In truth it may easily be self-direction
of a dangerous kind.
The trial Judge ought to go further and say that
evidence of the witness he believes is in
accordance with the preponderance of probabilities
in the case and, if this view is to command
confidence, also stated his reasons for that
conclusion. The law does not clothe the trial
~
;
<i' ;
Page 60
Judge with a divine insight into the hearts and
minds of the witnesses. And a Court of Appeal must
be satisfied that the trial Judge's finding of
credibility is based not on one element only to the
exclusion of others, but is based on all the
elements by which it can be tested in a particular
case.
I find that there are no substantive differences
between the evidence of Mr. Moore and Mr. Lewis and the other
~
Employer witnesses, as it related to the events at the work place.
There have been some minor differences, but there has been no
evidence of any indication to deceive the Board, and such
differences can be attributed to the passage of time. There were
more serious differences in the evidence which Mr. Moore gave to
his doctors and to the hearing on his medical and alcohol problems
in particular, which will be assessed us ing the guidelines in
Faryna v. Chorny, but which I will deal with later in the
decision.
I have evidence about Mr Taylor's acts from Mr. Lewis,
Mr Moore, Mr. Mack and Mr. Bonenberg. Mr. Taylor was not called
to testify. The Employer knew from the beginning of the hearing
that a key element of the Union's position was the contribution of
Mr. Taylor's conduct to the environment and his treatment by
management. The manager, especially if his conduct was above
reproach, ought to have been the best witness to testify to the
atmosphere, the image of the hatchery as portrayed by the
employees, the rules and restrictions that management found
important and were applying. He could also have provided his view
of the YY incident and his view of his relationship with Mr. Moore
and Mr. Lewis. From Mr. Taylor's failure to testify, when the
Employer knew that his role and his treatment was an issue in this
case, and when he should have been the best management witness to
testify, I draw an adverse inference from his failure to attend,
and rely upon the evidence of Mr. Lewis, Mr. Moore, Mr. Mack and
Mr. Bonenberg, as to Mr. Taylor's involvement and the evidence
given by management as to his admissions. Management's view of
.
.
~ .
,
Page 61
Mr. Taylor's behaviour and how they reacted to what they accepted
as admissions, is relevant to this decision.
The penalty
The focus of this decision is to consider the mitigating
circumstances as the Union has conceded that the grievor's
behaviour constituted sexual harassment and was abhorrent and in
most circumstances would warrant discharge. As the union has
conceded that the actions of the grievor when considered in
isolation constitute just cause for dismissal, the onus falls upon
the Union to establish that the Employer acted in an arbitrary,
discriminatory or otherwise un~easonable manner and the mitigating
circumstances outweigh the gra~ity of the offence, such that the
discharge ought not to be upheld. As stated in Outboard Marine
(supra) the Ualleged, extenuating or mitigating circumstances must
be real and substantial, outweighing the gravity of the offence
and not based on consideration of sympathy or a reluctance to make
a hard decision".
The primary circumstances upon which the union is
relying are:
1 ) the poisoned atmosphere and the contribution of
others to the poisoned atmosphere;
2) the inequality of the treatment of the
participants;
3) the illness of alcoholism and the affect of
alcoholism and childhood abuse on the grievor's behaviour; and
4) the rehabilitation of the grievor from alcoholism
and the unlikelihood of such events occurring again
-
.
. .
Page 62
l) The Poisoned Atmosphere
The relationship be1:ween Mr. Lewis and Mr Moore
There is no dispute among the witnesses that, for many
years, the culture that existed at the hatchery has been a coarse
male culture, rampant with ribald jokes, and stories with no
regard to discretion, subtleties, and respect for the dignity of
others. The banter was accepted by the small working unit and by
some of the employees who visited from District Office. There was
no evidence, however, that management from District Office
participated in the banter. On the other hand, management, who
knew about the atmosphere, did not regulate the conduct of the
employees.
Both Mr Lewis and Mr. Moore worked in this culture,
frequently alone and exchanged coarse stories and jokes containing
sexual content. Each found, for the most part, the banter and the
discussions acceptable. Each one had the power and set the tone
of their conversations. Neither one stopped to consider what was
appropriate discussion at a place of work. As between Mr. Lewis
and Mr. Moore, where there was no distinction between their
working and social relationship, there was no distinction made in
their relationship and the discussions with Mr. Sargentson.
Mr. Lewis admitted that sometimes he told jokes that
others could have found offensive, which were not offensive to
him. Similarly, Mr. Lewis testified that many times he did not
find Mr. Moore's discussions and jokes offensive. When Mr. Lewis
did find the jokes offensive, he frequently said nothing or did
not make an issue of his disapproval. Mr. Lewis said that Mr.
Moore's jokes were not more vile or crude than his or Mr.
-
0'
^ "
,~
Page 63
Sargentson's, only that Mr. Moore did not know when to stop. Mr.
Lewis asserted that there was a difference in some of the jokes
they made, in that he and Mr Sargentson made jokes that were
generic, while some of the grievor's jokes were pointed at a
particular individual.
The situation between Mr. Moore and Mr. Lewis and Mr.
Sargentson, is analogous to the situation in Aragona (supra) in
which the Board found that there was an environment of sexual
teasing and joking and that Uemployees were willing participants
who enjoyed the atmosphere" and who Ugave" as much as they "took".
In Aragona (supra), the Board found that where there is a general
acceptance of sexual teasing and joking, the individual who does
not accept it, has to voice disapproval directly and ambiguously
Similarly, at the hatchery, where there was a general acceptance
of sexual banter and coarseness, as between Mr. Lewis and Mr.
Moore and Mr. Sargentson, silence by a person who participates in
banter and stories is equivalent to acquiescence or approval
When Mr. Lewis participated in like commentary, and rarely told
Mr. Moore not to make comments, Mr. Moore had little guidance as
to when he overstepped the line and offended Mr. Lewis. There is
always a danger in an atmosphere where there are Uno holds
barred", where each person has his or her own subjective view of
what is and is not acceptable, that at some point that subjective
line is crossed. It is therefore necessary that the lines of
disapproval be clearly stated. In this case where Mr. Lewis was
an active participant in the banter until 1992, and did not
disapprove of many of Mr Moore's comments, and if he did, said
little or nothing, he must be taken to have acquiesced, blatantly
or impliedly.
Furthermore, Mr. Lewis and Mr. Moore had a close
relationship. They discussed many matters of a personal nature,
such as Mr. Moore's marital situation, his family situation, his
visits to a psychiatrist, and Mr Lewis' depression and his need
to see a psychiatrist. Mr. Lewis saw himself as a sounding board
\
- -
-
i
~ ..
"
Page 64
for Mr. Moore and his personal problems and in turn, as he knew
that Mr. Moore had seen a psychiattist for his problems, turned to
Mr. Moore for advice on where to get psychiatric or psychological
treatment for himself. In the context where the discussions are
intimate and each is able to set the limits, it becomes even more
important that the limits are conveyed.
There is however, a distinction between the gravity of
the offensive conduct between Mr. Lewis and Mr. Moore, in which
both were contributors, and were involved in a personal
relationship, and the conduct which occurred in the presence of
the students. The relationship between the employees and the
students is different from the Aragona case where the employees
were on an equal footing. The students were not on equal footing
with Mr. Moore and Mr. Lewis. They had the lowest position in the
working hierarchy. They were in a learning situation. By being
students in a working environment, the full-time employees were
role models and had a responsibility to set guidelines to
acceptable behaviour. The students were powerless to defend
themselves. The full time employees had a responsibility to the
students to provide them with a working environment, in which they
would not be subjected to comment. Ribald jokes and stories were
inappropriate. Even if they were the acceptable form of
communication in that workplace, more seriously, in both 1991 and
1992, Mr. Moore subjected the students to comments which were
demeaning, and for which they could in no way be held responsible.
It is irrelevant whether or not they ucould take it" as suggested
by Mr. Lewis of one of the students.
In 1992, the Employer assumed some responsibility and
held a harassment seminar in January or February 1992 This is a
marking point in terms of assessing the behaviour between Mr.
Lewis and Mr. Moore. It was clear from the evidence of Mr. Lewis
and Mr. Sargentson, that Pat Hogan speaking on behalf of the
Ministry, warned the participants, which included Mr. Moore and
Mr. Lewis that their prior conduct would no longer be acceptable,
i
~ ;
,>
Page 65
and if they did not stop, the system would make them stop.
As both Mr. Lewis and Mr. Moore's evidence on the
workplace environment was consistent, for the most part, I
therefore accept the evidence of Mr. Lewis which was not
contradicted by Mr. Moore that the seminar led to many discussions
between them about acceptable behaviour. It led to Mr. Lewis
modifying his behaviour. Mr. Lewis testified, that in 1992, he
stopped participating in sexual banter, and Mr. Moore confirmed
that he had not engaged in sexual banter from June 1992.
Furthermore, there was no evidence from Tyler Hoar of any
inappropriate comments by Mr. Lewis and no concerns were expressed
by the students against Mr. Lewis. I am therefore satisfied that
as testified to by Mr. Lewis, that after the harassment seminar,
he heeded the warning from Pat Hogan and no longer partook in the
inappropriate comments.
Mr. Moore admitted that he attended the January seminar
Mr. Moore remained undeterred and did not give any recognition to
the message that was conveyed in that seminar. He did not change
his behaviour.
The Employer held another harassment seminar, after the
students began their summer employment in 1992. Mr. Moore says
that he cannot remember being there, while Tyler Hoar says that
Mr. Moore sat beside him. In face of this direct contradiction, I
prefer the evidence of Tyler Hoar. Tyler Hoar's evidence was
clear, it was a new experience for him, and it would therefore
have a stronger impression upon him than on Mr. Moore, whose
recollection of events was poor at times. In addition, one of the
allegations that Mr. Moore admitted to, was that he said that "no
means yes". This had been one of the topics discussed at the
harassment seminar. In light of Mr Moore's candidness on the
allegations admitted, I do not find that he was intentionally
lying, but find that it is more consistent with an attitude which
did not find the attempts by management to control the atmosphere
--.--
-
.
.
Page 66
as significant. It is more probable that Mr. Moore was in
attendance, but did not pay any attention to the seminar and did
not heed its message.
Mr. Moore was aware of management's position from at
least one seminar, but unfortunately, neither seminar enlightened
Mr. Moore. The allegations of misconduct that came from the
students laying their complaints and from Tyler Hoar came after
the seminar, as did many of Mr. Lewis' allegations.
Contribution by Mr. Taylor to the atmosphere
I find that Mr. Taylor contributed to what both parties
characterized as the poisoned atmosphere in both sexual and non-
sexual matters. Mr. Taylor created a negative working environment
at the hatchery from his first day of work. He was aggressive
physically, and assaulted Mr. Moore on three occasions, beginning
on Mr. Taylor's first day of work. He threatened both Mr. Lewis
and Mr. Moore with losing their jobs for failing to perform and
take d'irection. The stress that would normally flow from such
threats was compounded by an environment where there had been
discussions of reorganization and where job security was an issue.
Although Mr. Taylor was a supervisor, he garnered no
respect. This was seen as early as June 1991, when a meeting was
held between Mr. Heerschap, Mr. Taylor and Mr. Moore concerning
Mr. Moore's behaviour, his repeated failure to follow
instructions, providing improper direction to staff and creating a
negative working environment, which resulted in an oral warning to
Mr. Moore. Again in October 23, 1992, Mr Taylor and Mr.
Heerschap met with Mr. Moore to discuss Mr. Moore's use of
profanity towards Mr. Taylor. The meeting resulted in Mr. Moore
receiving a letter of reprimand dated November 4, 1991 from, Mr.
Bonenberg, advising Mr. Moore that his use of profanity towards
his supervisor was not acceptable, and his lack of respect towards
.
..
Page 67
his supervisor bordered on insubordination. The importance of
these letters in the context of assessing the atmosphere, is that
it is evident that although Mr. Moore was difficult and was
disciplined, Mr. Taylor did not have control over Mr. Moore at
this early date.
Management was well aware of the poor relations between
Mr. Moore and Mr. Taylor and of the atmosphere at the hatchery.
Mr. Moore asked Mr. Bonenberg earlier in the fall of 1991 to
monitor the situation. In Mr. Bonenberg's disciplinary letter to
Mr. Moore on November 4, 1991, Mr. Bonenberg characterized the
atmosphere as a 'poisoned atmosphere'. Management's perception
that there was a poisoned atmosphere was also seen in the
direction that Mr. Bonenberg gave to Mr. Heerschap on November 4,
1991 directing him to work on training in interpersonal
relationships, and to improve and monitor the workplace
environment.
Mr. Taylor contributed to an inappropriate working
environment and reinforced the acceptability of the coarse
culture, by foisting his talk of his sexual exploits and his girl
friends' sexual activities on Mr. Moore, Mr. Lewis, and on the
students. As with Mr. Lewis and Mr. Moore, he ought to have been
providing a role model and not harassing them. The students were
not in a position to counter Mr. Taylor's comments, and it was
seen in their comments to Mr. Hood in his investigation, that his
comments were unwelcome.
The yy incident seriously affected the relationship
between Mr. Lewis and Mr. Moore, and Mr Taylor, and management's
handling of the incident had a direct impact on the deterioration
of the atmosphere at the hatchery. Irrespective of what was
discussed between Mr. Taylor and YY, the perception of Mr. Lewis
and Mr Moore is significant. Mr. Taylor had shown pornographic
photos to Mr. Moore on his computer and both Mr. Moore and Mr
Lewis believed that Mr. Taylor had shown the pornographic pictures
-
.
I ~ .
Page 68
to the student, that Mr. Taylor asked or told the student about
masturbation, and they perceived that Mr. Taylor had made advances
to him. From their perspective, Mr. Taylor had crossed the line
of acceptable behaviour and as a result lost credibility. Their
concerns about his sexual activities were further increased when
Mr. Lewis learned that Mr. Taylor invited young boys to his house
to see the turtles, and when Mr. Moore was opening Mr. Taylor's
mail for him while he was on vacation and opened a sado-machistic
pamphlet which was sent to him at the hatchery. They conveyed
these concerns to Mr. Hood.
Management gave very little weight to the YY incident.
I accept Mr Moore's a~d Mr. Lewis' uncontradicted evidence that
when each one spoke to Mr. Heerschap, he snickered and considered
it a mere indiscretion. This is further supported by Mr.
Bonenberg's reaction when he learned of the YY incident. Directly
after the meeting with Mr. Taylor and Mr. Moore on October 23,
1991 on Mr. Moore's use of profanity, Mr. Taylor admitted to Mr.
Bonenberg that he showed pornographic photographs to the student
employee, but did not think that it affected the student.
Although given this serious admission of actions by a manager
towards a student that subjected the student to his actions, and
placed the student in an extremely difficult position, which on
its face, constituted sexual harassment, given the possibility
that the student, who was no longer employed by the Ministry,
would not press a complaint, Mr. Bonenberg did not investigate
further. Mr. Bonenberg said that he reprimanded Mr. Taylor orally
and sent him a disciplinary letter
Although Mr Bonenberg claimed that the letter of
November 4, 1991 to Mr. Taylor was a "warning" letter and was
disciplinary, on its face it appears to be more more than a mild
counselling letter. It does not refer to the YY incident, but
merely directs Mr. Taylor to remove any offensive material, while
at the same time commending Mr. Taylor on his handling of Mr.
Moore Its mildness is further substantiated by Mr. Bonenberg's
.
~
Page 69
testimony that he took the incident as a conversation between men,
and not as an inappropriate conversation between a supervisor and
an employee. The letter was consistent with a lackadaisical
attitude by management towards the events, and a failure to
question what occurred any further. The "disciplinary letter"
substantiates the perception of Mr. Moore and Mr. Lewis that the
matter was not taken seriously by management.
When Mr. Hood learned of the yy allegation and
investigated the allegation, he had questions about it and did not
believe that the all~gation had no foundation. He discussed his
concerns with Mr. Bonenberg, but Mr. Bonenberg did not investigate
the matter further or even ask Mr. Taylor about the allegations
The lack of investigation, resulted in a failure to find out about
the allegations of comments about masturbation and a full
understanding of what had or had not occurred in a timely fashion.
There is no doubt taat when the YY incident happened,
Mr. Lewis and Mr. Moore should have spoken directly to management
about their concerns, instead of choosing to look "protect the
s~udents", by telling YY and the other students not to go near Mr.
Taylor. However, when their actions came to management's
attention during the course of the Mr. Hood investigation, instead
of management canvassing their concerns with them and discussing
their actions, they were disciplined by management.
After the Hood investigation, Mr. Bonenberg learned that
Mr. Moore and Mr. Taylor were arguing, that Mr Moore had alleged
that Mr. Taylor had assaulted him on several occasions, that Mr.
Taylor had invited young boys to his house to see turtles, that
Mr. Taylor had received a sadomasochistic magazine at the
hatchery. Although management mildly chastized Mr. Taylor for his
poor management abilities and gave him a warning letter to that
effect, they did not recognize any of the difficulties that Mr.
Lewis and Mr. Moore faced.
"
i
i
Page 70
Employer's counsel asserted that the grievor's attitude
was caused by a resentment that Mr. Taylor obtained the manager
job and he did not. Although Mr. Taylor became the manager and
Mr. Moore remained a technician there was no evidence that there
was any resentment due to failure to get the position.
The evidence from both Mr. Lewis and Mr. Moore
overwhelmingly supports a finding that the attitude that was
prevalent, stemmed from!> Mr. Taylor's actions towards YY, Mr.
Taylor's own behaviour and the lack of respect that it generated,
which contributed to Mr. Taylor's failure to manage the employees
effectively. This, therefore resulted in a poisoned atmosphere as
it related to these employees.
If the allegations only concerned these employees, the
poisoned atmosphere that was created would be a relevant
mitigating factor. However, many of the allegati9ns that were
admitted by Mr. Moore involved his comments to students who worked
at the hatchery on a learning and working project. They were not
involved in the infighting and in the antagonism between the full
time employees. They were innocent bystanders, so to speak. They
no doubt participated in banter, following the example of the full
time employees, and the relationship between themselves was such
that they knew details of each other personal lives, but their
participation, if any, did not contribute or form part of the
poisoned atmosphere that pervaded in 1991 and 1992. Therefore the
poisoned atmosphere that existed as between the full time
employees was a minimal mitigating circumstance that should be
taken into account when assessing whether the Employer had cause
to dismiss Mr. Moore for his comments to the students, and whether
the poisoned atmosphere should be considered as a mitigating
circumstance to the penalty.
2) Inequality of Treatment.
.
.
"
Page 71
Employer's counsel argued that on the basis of the
decision of Mr. Justice Ferg in University of Manitoba (Ferg)
that conunents made by others were similar to those made by the
grievor, that comments by others is irrelevant to a determination
on the conduct of the grievor. I do not find that this case
stands for this proposition. In appeal, in Re Universit.y of
Manit.oba and Canadian Association of Industrial,
Mechanical & Allied Workers, Local 9 68 D.L.R. (4th) 418, the
Court specifically stated that it was not addressing Mr. Justice's
Ferg's decision on whether sexaal harassment had occurred as the
Court had found that the arbitrator had failed to answer the
question before it.
In my view, it is more consistent and equitable with the
principle of weighing mitigating circumstances to determine if a
penalty should be reduced, to follow the approach taken in the
cases of Powell River General Hospital (supra), Re Magic
Pant.ry, (supra) , Re Oshawa Group Ltd. (supra) and Re
Etobicoke General Hospital (supra). The focus is on the
conduct of the grievor, but the gravity of the conduct, mu s t be
viewed in perspective, and accordingly must be placed in the
context of the appropriateness of the conduct of others and
management's responses to that conduct. If that were not the
case, it would lead to situations in which a person could be made
the scapegoat, while others are free of responsibility.
Therefore in applying this concept, although the union
conceded that the grievor's conduct when looked at in isolation
constituted just cause for dismissal, it is necessary to weigh the
conduct of the other participants and consider their treatment.
When comparing Mr. Lewis' conduct with Mr. Moore's
conduct, it was Mr. Moore, and not Mr Lewis who was
uncontrollable. Mr. Lewis and Mr Moore were in the same
-~
-
I .
.
Page 72
position. Mr. Lewis was subjected to the same abusive management
style by Mr. Taylor, and the YY incident had a similar effect on
him as it did on Mr. Moore. He shared the same discipline as Mr.
Moore for attempting to protect the students. The only apparent
difference being, that on three occasions, Mr. Taylor hit Mr.
Moore. The three assaults although unacceptable, were not pursued
by Mr. Moore with anyone in management. Mr. Moore attributed the
blame for the assaults on his own actions. Whether that was right
or wrong is irrelevant to this decision, but is only relevant to
point out that the assaults did not trigger a greater reaction by
Mr. Moore against Mr Taylor than if they had not happened at all.
Although Mr. Lewis and Mr. Moore were in a similar position, there
was no evidence that Mr. Lewis persisted in debate and argument
with. Mr. Taylor. Most of the evidence of infighting was between
Mr. Moore and Mr. Taylor. The students saw it in both 1991 and
1992, and Tyler Hoar saw it.
In 1991, both Mr. Lewis and Mr. Moore told jokes and
stories with sexual content. However, there was no evidence of
any remarks made by Mr. Lewis towards the students that in any way
humiliated or demeaned them. This is in strong contrast to Mr.
Moore's conduct who made derogatory and demeaning comments which
were directed against particular students, and who would not stop
his conduct when told to do so on various occasions. Mr. Moore's
conduct towards the students was deplorable and even led to the
inability of one of the students to complete her work at the
hatchery in 1992. Although the atmosphere at the hatchery was not
a positive environment for the students to work in, Mr. Moore was
the only one who contributed to the direct harassment of the
students, as opposed to participating in jokes and stories that
may be found to be offensive by some. Therefore when weighing the
conduct of Mr. Lewis and Mr. Moore in 1991, Mr. Moore's misconduct
was much greater than Mr. Lewis'.
I have found that the harassment seminar and the warning
given by management in that seminar as a critical point in the
.'
"
"
Page 73
assessment of the employees' behaviour, as it was a point in which
the Employer took some step to affect the working environment.
There was no comparison between Mr. Lewis' behaviour and Mr.
Moore's behaviour in 1992. Mr Lewis testified that he no longer
participated in the repartee in 1992, which was corroborated by
Mr. Moore, and there was no evidence that he ever directly
harassed the students. As there was no evidence that he ought to
have been disciplined, there is no issue of disproportionate
penalties.
I accept management's evidence that Mr. Taylor did admit
to showing the pornographic pictures to YY, and I accept the
evidence of Mr. Lewis and Mr. Moore that he foisted his sexual
stories on the students, and as Tyler Hoar testified, thrusted his
crotch at the students. However, I have no evidence that his
behaviour reached the outrageous level of Mr. Moore's.
Although the Union alleged that the context in which the
incidents took place ought to be a factor when considering the
incidents, the context that Mr. Moore gave to the individual
scenarios, has no effect on reducing the gravity of the conduct.
For instance, whether Mr. Moore discussed pornographic films out
of the blue, or described them to provide a reason not to rent one
when he could not go fishing has no effect on the seriousness and
inappropriateness of the talk. Mr. Moore's conduct was more
extreme than Mr. Taylor's.
Mr. Moore not only told jokes with sexual content as did
Mr. Taylor, but presented monologues of gross stories to Tyler
Hoar and Mr. Lewis, and also harassed the students directly. The
main distinction in their behaviour is the level of coarseness
used in the stories told by Mr Taylor and Mr Moore, and that
there was no evidence that Mr. Taylor demeaned or humiliated the
students directly. Although once there is any acceptability of
coarse behaviour, the dividing line between that which is
acceptable to one and that which is not acceptable to another may
--
~
.
~ ,.
.
Page 74
be difficult to discern, Mr Moore pushed beyond the level of
acceptability to most, but most importantly, past the level of
acceptability to the students, who could reasonably expect not to
be demeaned and humiliated. Furthermore, there was no evidence
that the students were driven by any malice or vindictiveness
whatsoever towards Mr. Moore and therefore it also leads me to
conclude that the level of behaviour of Mr. Moore was different
from that of Mr. Taylor.
Although management did not deal with information it had
about Mr. Taylor until February 1993, after it received further
information from the investigator into Mr. Moore's conduct, the
delay did not prejudice Mr. Moore.
As the decis~on of the hearing officer was not complete,
and was missing the appendices, it was difficult to ascertain the
depth and the specificity of the complaints about Mr. Taylor.
However, it was apparent from Mr. Mack's testimony, and which was
substantiated in the notes that he made in preparation for the
hearing, that the allegations that were raised against Mr. Taylor
in this hearing were submitted to the hearing officer for his
consideration. Mr. Taylor was penalized for his lack of
management skills and his lack of intervention into Mr. Moore's
conduct towards the students.
There must be a reasonable relationship between the
degree of participation of each and the penalty or treatment that
each receives as in in Powell River General Hospital (supra).
This principle was also applied in the Re Magic Pantry (supra)
case in which the whole atmosphere, and the conduct of all the
participants was reprehensible, was taken into account. In Re
Magic Pantry Foods (supra), the company carried out an
investigation, and found that most, if not all, the sanitation
crew, were involved in numerous offences, such as drinking, drug,
and time-keeping offences The company could not discharge all
the employees as it would have been unable to continue to run its
.
; ;.
Page 75
business, and therefore it discharged the Union leaders and those
who had the most offences. Arbitrator O'Shea reinstated the
grievors after recognizing that if the offences were looked at in
isolation that the misconduct of each one would have been just
cause for dismissal. He recognized that the company's inability
to continue its business if it fired all its employees, however,
due to the disparity of penalties for the same types of conduct,
he found that the lack of proportionality in the penalties was so
great, that he reduced the penalties.
However, Re Magic Pantry (supra) is distinguishable
from the case at hand. It would only be relevant if the issue
before me was to assess the conduct and discourse between Mr.
Moore, Mr. Lewis and Mr. Taylor, which had commonality. However,
once the conduct towards the students is considered, while some
banter may have been the same and was unwelcome from both Mr.
Moore and Mr. Taylor, there is a significant difference in the
nature and extent of the conduct engaged in by Mr. Taylor and Mr.
Moore to the students. Although in my view the YY incident was
treated too lightly by management, and I find it difficult to
accept the "warning" letter as other than a mild counselling
letter, Mr. Taylor also received a ten day suspension and a
demotion, and loss of merit increases. In the circumstances, it
was not so disproportionate to the discharge that Mr. Moore
received for his conduct, which was much more invasive of the
students' person and dignity and which impacted the atmosphere
which they had to work in throughout their employment and which
caused one student to be so upset that she could not complete her
last two weeks of work.
3) The Illness of Alcoholism and The Affect of Alcoholism
and Child Abuse on the Grievor's Behaviour.
The Union asserted that the grievor's behaviour was
.
~ '
.
Page 76
caused by his aicoholism and by the effect from the sexual abuse
that he had encountered as a child
The first issue is whether I can accept evidence
presented by the union to support its position that Mr. Moore was
an alcoholic prior to taking his sick leave and at the time of
discharge, as the evidence on his alleged alcoholism and abuse
arose after he took his sick leave, and from medical information
obtained by the doctors after his discharge.
The acceptability of evidence is not governed solely by
the date of its discovery and its relationship to the date of
termination, but also by its relevance to the issues. In
grievance proceedings, where the culpability of the grievor is
considered in matters relating to discharge, the issue of
alcoholism and its affect on the conduct of the grievor, and
whether it should be taken into account is relevant to explain the
grievor's circumstances prior to termination, and therefore is
relevant to the issue of penalty. As such, I find that the
evidence of the doctors, obtained both before termination and
after termination relating to Mr. Moore's condition prior to his
discharge is relevant and admissible.
A determination as to whether Mr. Moore was an alcoholic
is dependent upon an assessment of his credibility and therefore
the reliability of his evidence, and a consideration of the
evidence of the doctors who diagnosed and treated him. Moore's
doctors were called as expert witnesses. As such, their evidence
is not relied upon to make a decision on the issues at hand, but
to provide a greater understanding of the complexities involved in
their area of expertise as it relates to the facts at hand, in
order that the evidence can be understood and to assist the Board
by providing opinions or inferences on areas outside the Board's
expertise
In light of Mr. Moore's evidence and its consistency
~
; ..
Page 77
with the Employer witnesses' testimony, overall, I find him a
credible witness, and one who testified to the best of his
ability. The fact of acknowledging some of the allegations and
admitting that they were in the normal course of events consistent
with discharge is consistent with a person, who is not escaping or
looking for ways to avoid the consequences of his act. However,
Mr. Moore's evidence on his drinking habits in the last two years
before his termination was difficult to reconcile with the
Employer's witnesses who testified that they were unaware of any
alcohol on the grievor's breath or any after effects of alcohol
use at the workplace.
On the one hand, Mr. Moore's evidence was that he was
drinking more or less a dozen beers during the work day in
addition to two ounces of vodka before work, in addition to his
heavier consumption during the weekend. This consumption also
included three or four beers at lunch as he could not go more than
three or four hours without alcohol without losing control. One
would have thought that this volume would have had some effect on
his work, or would have been noticed.
On the other hand, the Employer's evidence is that only
one witness, Mr. Lewis, had noticed the smell of alcohol on Mr
Moore's breath on one occasion. Although Mr. Lewis admitted that
if he and Mr. Moore were fishing or socializing together, that
they consumed a great deal, but he was not aware of any effect
from alcohol consumption on Mr. Moore at work.
Dr. wilson testified that some people can successfully
hide their habits, however, he also testified that while the
coworkers may not realize that a person is an alcoholic, the
coworker will find the person dysfunctional in a work setting,
being irritable, and moody Even though, Mr Lewis spent less
time at the hatchery in 1992 and more time at the District Office,
he still was in the best position to notice any effects, and yet,
he did not notice any. The evidence also showed that Mr. Moore
-
~
;. 1i
Page 78
may have been moody as seen in his relationship with the students,
but there was no dysfunctJon in his work performance. On the
contrary, notwithstanding Mr. Taylor's disputes with Mr. Moore
over his work, Mr. Moore had been commended for his fish
management. Other common manifestations of alcohol problems, such
as lateness and or absenteeism were not present.
Therefore, if it were a matter of merely weighing the
evidence of Mr. Moore against the evidence of the other witnesses,
it would be inconsistent with the preponderance of probabilities
that Mr. Moore drank to the extent that he claimed in the two
years preceding his discharge. However, such a finding would be
in contradiction to the diagnos:es of the doctors who attended him
after he went on sick leave who diagnosed that he was substance
dependent or in laymen's terms, an alcoholic. The issue then
becomes whether Moore was lying about his consumption to this
Board or to the doctor's such that their diagnoses is wrong, or
whether there was other evidence that is consistent with the
diagnosis of alcoholism where the usual indicators are not
apparent.
The inconsistencies in the evidence which Mr. Moore gave
at this hearing, and. the information that he provided to the
various doctors and support facilities on his drinking habits
varied in terms of the length of time that he admitted he was
using alcohol heavily, which ranged from two years, to ten years,
to thirty-five years, to from his teen years, depending upon to
who and when he gave the information. It varied in the type of
drinking he said he engaged in, between 1970 to 1974, from very
little to binge drinking, and more significantly, that he had
told the doctors he was drink~ng on evenings and weekends which
was less than what he told this Board. There was also a failure
to disclose alcoholism as a basis for long term disability
coverage in his application to Confederation Life Insurance
compapy, which would suggest that alcoholism was not the basis of
his disability. There were also differences in his account of his
"
~
~ ~
'.
Page 79
wife's drinking habits.
Dr. Simson testified that Mr. Moore suffered from
depression, anxiety, alcoholism and substance abuse. Dr. Simson
understood in October 1992, that Mr Moore had drunk heavily over
the previous two years, although not at work, referred him for
treatment for an alcohol problem, as he found an alcohol problem
has to be treated first in order that progress can be made on the
treatment of depression, as the two problems are often
interconnected.
Although Dr. Wilson initially diagnosed Mr. Moore as
having a substance abuse problem as set out in the DSM Manual 4
(DSM 4), he stated at the hearing, that his initial diagnoses was
wrong and that Mr. Moore should be more correctly diagnosed as
being substance dependent. The primary difference between the two
diagnoses is that the abuser can more easily curtail drinking on
being advised that it is harmful, whereas the dependent cannot.
The terms are set out in the DSM which is a coding system for
psychiatric conditions, which carries a list of symptoms to enable
a doctor to make a diagnosis of a condition and to thereby allow
the doctors and other professionals to measure and assess certain
behaviour, and have an ability to talk the same language, setting
aside the interpretation skills of the doctor or counsellor. It
describes diagnostic problems which help in the standardization of
treatment.
Employer counsel challenged Dr. wilson's change in
diagnosis of IIsubstance abuse" to lIalcohol dependency" based
primarily on misinformation given by Mr. Moore. This is a
distinction, if accepted, would not help the E~ployer's case, as
the abuser is better able to modify his or her behaviour than the
dependent and therefore the prognosis that similar problems should
not reoccur, should the person be returned to work, should be
better for the abuser than the dependent.
;
.
t:' ;:
Page 80
Looking at the information that Mr. Moore gave on his
alcohol consumption, there were inconsistencies, but they are not
of the nature that would cause me to doubt the doctors' diagnoses
of alcoholism.
Dr. Wilson found that Mr. Moore had an elevated ALT in
March when Mr. Moore had abstained from alcohol since December
1992. Normally the ALT will return to normal within six weeks.
The high elevation was consistent with liver disease which is
consistent with long term alcohol use. Mr. Moore also presented
with a history of depression and anxiety, which as did Dr. Simson
find, Dr. wilson found related to alcohol dependence. Even when
pressed by Employer counsel as to inconsistencies, Dr. Wilson did
not change his diagnosis that Mr. Moore was substance dependent.
Mr . _ Moore has gone through extensive therapy and
rehabilitation, and the diagnoses of alcoholism, in the lay sense
is common throughout. The program at Meadow Creek is for the
treatment of people with late stage alcoholism and who have
serious psychological problems. I accept Dr. Wilson's evidence
that the staff are suspicious of those who want to use the program
to get their job back, and not for the purposes of treatment. The
program is an intensive in-house twenty-eight day program, where
the person is in contact with a treatment team twelve hours a day
Mr. Moore would have had to be extremely skilled in the art of
deception or alternatively have been severely emotionally ill to
have developed or maintained this pretence before so many
individuals, and before those skilled to make assessments .in this
area and to determine if there is a problem with alcohol and if
Mr Moore was a candidate for their program.
Dr. wilson, who was an expert on alcoholism, also
provided an explanation for the inconsistencies in the information
provided by Mr. Moore. Dr. Wilson testified that there is a
reluctance by individuals to admit to being an alcoholic unless
one is. Admission comes after the denial stage. Dr. Wilson
~
~ ;
.
Page 81
stated that persons who are alcohol dependent make inconsistent
statements, and as problems are addressed, the statements usually
become more consistent. The gradual acceptance of the situation
may have accounted for some of the differences in his history that
he recounted to the doctors.
If Mr. Moore was not an alcoholic, the alternative, that
Mr. Moore was lying to his doctors or providing them with
inconsistent information, would have led me to conclude that he
was a much sicker man mentally than I have found. I do not think
that this is the case, and there is no evidence to support such
serious psychological problems. Drs. Balamaceda and Grymala
discounted any sexual pathological problems.
Although the Employer attempted to challenge the
doctor's diagnosis, by suggesting that the tests could also be
consistent with other possibilities such as mononucleosis, or that
each elevation may be consistent with a cause other than
alcoholism, I do not find that Employer's counsel was successful
in establishing that the combination of the physiological tests
were consistent with any other diagnosis to the degree that the
diagnosis of alcohol abuse was wrong. The Employer did not
produce any expert to contradict those presented by the Union. I
accept the premise set out in Air Canada (supra) in which
Arbitrator Hope stated:
An arbitrator is not at liberty to simply reject
expert opinion evidence with respect to issues of
fact that invite the assistance of such evidence"
The law requires that an arbitrator be able to
assign valid reasons for rejecting the evidence.
There is no valid reason to reject the expert's evidence.
Although clinical tests cannot prove conclusively that
an individual was suffering from alcoholism, there was further
clinical evidence that was consistent with a diagnosis of
alcoholism. Dr. Dooley noted in 1988 that Mr. Moore had elevated
-~~
'"
~
~ ..
.
Page 82
triglycerides, which caused him to wonder if Mr. Moore had an
alcohol problem. Mr. Moore also had an enlarged liver. Dr.
Macpherson who was the admitting doctor for Mr. Moore to the
Pembroke Civic Hospital was of the view that Mr. Moore may have
had a genetic disposition towards this condition, as his maternal
aunt was an alcoholic. Dr. Macpherson also found Mr. Moore's
physiological tests, particula'rly his MCV count was elevated and
consistent with alcohol abuse. When it was put to Dr. Macpherson
whether the tests were consistent with heavy daily drinking over
three to four months, it was his view that it would be in excess
of three months due to the MCV count and the time it takes for the
red cells to develop, although it was possible if the period was
extended to four months. However, Dr. Macpherson concluded by
saying that in terms of the blood tests, there was nothing in the
blood tests that was inconsistent with chronic alcohol abuse.
While the physiological evidence may possibly be
consistent with some other physical ailments, and is consistent
with increasing alcohol consumption in the three preceding months
to Mr. Moore's admission to Pembroke Civic Hospital in December,
1992, it was overwhelmingly consistent with a diagnosis of
alcoholism, in the lay sense. Without contrary medical evidence,
I accept the evidence of Dr. Wilson that Mr. Moore was substance
dependent and he uhad a severe long-standing alcohol problem with
a daily drinking pattern".
Dr. Wilson provideq an understanding of the cycle of
drinking, the withdrawal from the effects to alcohol after several
hours and the need to drink again to alter the effects, and the
possibility that binge drinking also falls along this category.
He provided an understanding as to how some alcoholics can hide
their addiction from those who work around them.
I accept the evidence of Mr. Moore, which was supported
by Dr. Wilson of the diagnosis that Mr. Moore was substance
dependent and had been drinking for a period of time, which
.
;
.
Page 83
included the time affected by this grievance. I accept that the
grievor was an alcoholic and was able to hide his habits, but I do
not find that he was drinking during his employment prior to his
sick leave to the extent that he alleged. Even Dr Simson noted
that Mr. Moore did not manifest symptoms of chronic alcoholism
when he first saw him in August. On a common sense approach, one
however does not go from social drinking even drinking heavily on
social occasions, such as fishing with Mr. Lewis or Mr. Sargentson
to drinking to the extent that the grievor claimed. It would be
more probable, and consistent Mr. Moore's testimony, in which he
admitted that by his detoxification he was consuming alcohol
heavily, and consistent with Dr. Wilson's opinion, that increased
stress can exacerbate a drinking problem, that with the additional
stressors of the allegations and the investigation, and the
additional time on his hands that Mr. Moore increased his
alcoholic consumption after he took his sick leave.
Mr. Moore had other maladies. Dr. Simson stated that
Mr. Moore suffered from dep.ression, anxiety, alcoholism and
substance abuse. He diagnosed Mr. Moore as having a Generalized
Anxiety Disorder, as set out in the DSM 4 and gradually diagnosed
him with post-traumatic stress disorder. Dr. Simson accepted what
Mr. Moore told him of his past abuse, as he said there was nothing
to indicate to the contrary. In his opinion, these disorders
arose from the effects of his childhood and homosexual abuse and
such situational factors as his work environment, and the stresses
created by the allegations and the investigation and the
possibility of losing his job
I do not accept the Employer's contention that Dr.
Simson had not seen Mr. Moore sufficiently to make an accurate
diagnosis. Although Dr. Simson saw Mr. Moore shortly after he
went on sick leave, he saw him regularly over the next three years
for visits, each of which were an hour to an hour and a half, and
would have had ample opportunity to test any underlying doubts or
questions that he had concerning his diagnosis. Dr. Simson first
.i
;
Page 84
thought there was a possibility that Mr Moore was lying to him,
but later discounted that conclus10n. This determination by Dr.
Simson is not relevant to my assessment of Mr. Moore's
credibility, but is to the validity of Dr. Simson's assessment and
diagnosis of Mr. Moore. Although the inconsistencies presented by
Mr. Moore in his testimony and to the professionals was put to Dr.
Simson, Dr. Simson did not change his diagnosis.
Dr. Simson was questioned as to whether he believed that
Mr. Moore was "Malingering", but did not believe so.
"Malingering" under the DSM is the "intentional production of
false or grossly exaggerated physical or psychological symptoms,
motivated by external incentives,.. " Dr. Wilson also explained
. that this diagnosis is more usually found with physical as opposed
to psychological problems, but in any event, in the view of Mr.
Moore's participation and rehabilitation, he too did not believe
that Mr. Moore was malingering. Dr. Simson'S finding of
depression is also consistent with Mr. Moore's earlier history of
depression, and therefore I accept the evidence of Dr. Simson and
Dr. Wilson that in their opinion Mr. Moore was not malingering and
suffered from depressions and anxiety. Although there was a
disagreement between the doctors as to how many disorders could
exist on an axis, I am not satisfied that the Employer's counsel
could prove that such a difference attacked the veracity of either
doctor's diagnosis, such that neither could be relied upon.
3) Causal Links
The Union argued that there was a causal link between
Mr. Moore's alcoholism, and the effects of his childhood abuse, to
his behaviour, and that this link ought to be considered a
mitigating factor.
The experts were n0t able to come to a definitive
conclusion. However, there was some consistency in the opinion on
.
.
..
Page 85
alcohol's effect on general behaviour.
Dr. wilson could not say whether Mr. Moore was
intoxicated when he engaged in sexual harassment, but concluded
that alcohol would impair his judgment and affect what he said and
how he behaved. In his view, drinking and his marital situation
and his childhood abuse, whether looked at singly or together did
not provide a direct cause for his behaviour, but a potential for
Mr. Moore's behaviour.
Similarly in Dr. Simson's opinion, alcohol abuse does
not manifest itself in sexual harassment, but alcoholism had some
bearing on Mr. Moore's behaviour. He based his rationale on the
premise that there is a di~inhibiting aspect when alcohol is
consumed and for the period after, and there is offensive
behaviour that coincides with chronic alcoholism, whereby a person
can be sober and yet manifest unfavourable traits and behaviour.
Similarly, depression does not manifest itself in sexually
harassing behaviour. However, Dr. Simson felt that there was some
association between Mr. Moore's past experiences of childhood
abuse and homosexual abuse and the jokes he was telling by
focussing the jokes on others, talking of their sexual activities
and making light of it. In his opinion, there was a possibility
that his childhood experiences had a bearing on Mr. Moore's
behaviour, when considered with other aspects of the workplace,
such as the triggering of memories caused by the YY incident, the
intimidation that he felt by Mr. Taylor, and his anger towards
him. Dr. Simson said however, that he was not saying that stress
causes one to sexually harass others in the workplace and nor does
the work environment cause him to engage in sexual harassment, as
also agreed to by Mr. Moore. Dr Simson also concluded that there
could be some association between the post-traumatic stress
disorder which Mr. Moore was experiencing and his behaviour. He
felt that all the diagnoses had a part as well as the situational
factors in Mr. Moore's sexually harassing behaviour His opinion
to this Board, was consistent with his conclusions in his report
.;
.-
Page 86
to the Health and Welfare Canada that Mr. Moore's condition of
depression, post traumatic stress disorder from childhood abuse,
and alcoholism, has been chronic and disabling.
Many of the cases p~esented by the Union, found that
there was a causal link between alcoholism and various offending
behaviours with the result that boards of arbitration reduced
their penalties, where the cause of the problem could be
corrected. In this case however, the experts would not go so far
as concluding that there was a direct causal connection. I find
on the evidence before me that there was no immediate link between
intoxication and Mr. Moore's behaviour.
Dr. Simson did go so far as saying there is a
possibility that there was a link between Mr. Moore's past history
of abuse and his behaviour. Even if it were a contributing
factor, I find that it did not negative his intent.
Mr. Moore said that he sometimes did not know what he
said until after the comments were made. But even on that
admission, there was a realization that he had made an
inappropriate remark. As he also admitted, he was able to, and
did assess the conduct of others and was critical if their conduct
overstepped what he considered acceptable. Dr. Wilson agreed that
a person who could not judge his own behaviour would find it
difficult to judge the behav~our or others, and yet, Mr. Moore
did.
A further indicator that illustrates that his background
was not such a disinhibiting factor is that his alcoholism did not
impact the quality of his work. He was able to think and perform
his duties. Although Mr. Moore's work may not have been to the
level demanded by Mr. Taylor, there was nothing to suggest that
his work performance had suffered and that he was not doing' a good
job.
--- _._-~..-
"
I .,
.
Page 87
Mr. Moore stated that he was going out of control. Mr.
Lewis also reported to management with the list of his incidents,
that Mr. Moore was out of control and needed help. It is clear
that Mr. Moore's behaviour was unacceptable, but as he could
perform his job successfully and could judge the actions of
others, the evidence does not suggest that Mr. Moore was so
incapacitated that he did not intend to act as he did, it was
merely that he did not care, and did not attribute any
significance to his actions.
Mr. Moore stated that sometimes he stared into space and
was not aware of that which was around him. Dr. Simson testified
that he was told this by Moore, and he attributed his trances to
double doctoring. I do not give any weight to the possibility of
double doctoring and the effect it might have had on him. Mr.
Moore never mentioned it at the hearing, and although he stated
that he mentioned it to various professionals, only Dr. Simson
mentioned this possibility. There was no evidence that Mr. Moore
was duplicating or obtaining more drugs than he ought to have
been. The only evidence of him taking drugs with alcohol was seen
in December when he went through detoxification from Lectopam and
alcohol. There was no evidence of any such use during his working
career. Although Dr. Wilson provided another explanation based on
alcoholism, I do not find that there was any evidence to support a
finding that Mr. Moore went into trances and did not know what was
occurring. His mental state did not negative his intent.
4) The likelihood of committing Future Offences and the
possibility of a Continuing Employment Relationship
Employer's counsel submitted that the Union could not
rely on post discharge evidence on Mr. Moore's rehabilitation on
the basis of the Compagnie Miniere Quebec Cartier decision, as
once there is an acceptance that there was just cause to dismiss
1-.
I "
~ ;:
Page 88
Mr. Moore, there is no jurisdiction for the arbitrator to admit
and rely on post-discharge evidence in determining whether to
substitute a lesser penalty.
The Supreme Court of Canada held in Compagnie Miniere
Quebec Cartier that the mandate of the arbitrator was to
determine if the Employer had "just and sufficient cause" to
dismiss the grievor at the time of his discharge. As a result,
the evidence was only admissible if it shed light on the
reasonableness and propriety of the decision at the time it was
made. Therefore the arbitrator could only consider any evidence
that is relevant to the just cause as of the date of termination
and the post-discharge evidence may only be relied upon to the
extent that it relates to the propriety of the Employer's decision
at the time of termination. The Court held at page 7 of the
decision:
This brings me to the question I raised earlier
regarding whether an arbitrator can consider subsequent-
event evidence in ruling on a grievance concerning the
dismissal by the company of an employee. In my view, an
arbitrator can rely on such evidence, but only where it
is relevant to the issue before him. In other words,
such evidence will only be admissible if it helps to
shed light on the reasonableness and appropriateness of
the dismissal under review at the time that it was
implemented. Accordingly, once an arbitrator concludes
that a decision by the Company to dismiss an employee
was justified at the time that it was made, he cannot
then annul the dismissal on the sole ground that
subsequent events render such an annulment, in the
opinion of the arbitrator, fair and equitable. In these
circumstances, an arbitrator would be exceeding his
jurisdiction if he relied on subsequent-event evidence
as grounds for annulling the dismissal.
However the statutory basis upon which this decision was
relying is different from the enabling statute for this decision.
The Quebec statute is narrower than the Ontario statute and does
not include the power to set aside a dismissal for just cause.
Mme. Justice L'Heureux-Dube noted that there was "no provision in
I
~~
~
~'
~ ~
.
Page 89
Quebec labour law or in the collective agreement between the
Company and the union which would permit a labour arbitrator to
overturn a decision by the Company to dismiss an employee
notwithstanding the fact that the Company demonstrated just cause
for dismissal " The unreported decision of the Ontario
Secondary School Teachers Federat.ion (supra) followed the
approach taken by the Supreme Court, but it was not apparent from
the case as reported, as to what was the statutory basis, and the
terms of the collective agreement, that it was based upon, and
therefore the case was unable to be of assistance.
The Ontario Relations Act at the time of the
discharge, clearly provided the jurisdiction to consider all the
circumstances and substitute a penalty where an employee has been
discharged for cause. It states:
Substitution of penalty. --- Where an arbitrator or
arbitration board determines that an employee has been
discharged or otherwise disciplined by an employer for
cause. . . the arbit.rator or arbitration board may
substitute such other penalty for the discharge...as to
the arbitrator or arbitration board seems just and
reasonable in all the circumstances.
There is no limitation as found in Compagnie Miniere
Quebec Cartier as the 'Crown Employees Collective Bargaining
I Act stated:
I Where the Grievance Settlement Board determines that a
I disciplinary penalty or dismissal of an employee is
excessive, it may substitute such other penalty of the
I discipline or dismissal as it considers just and
reasonable in all the circumstances.
I
As in the unreported decision of Arbitrator Devlin in
Communications, Energy and paperworkers union of Canada
and Bell Canada (September 22, 1995) which distinguished
compagnie Miniere Quebec cartier on the basis that the Canada
Labour Code and the collective agreement provided the power to the
-- -
'<,
"
~ -
Page 90
arbitrator to vary or modify a penalty where it has been
determined that there was cause for discharge, the statutory basis
upon which this decision is based allows for a consideration of
all the circumstances in determining if the discharge was
excessive and whether another penalty should be substituted.
Therefore, I find that subsequent event evidence is admissible if
it is relevant to the issue of the penalty imposed and to be
imposed.
The consideration of rehabilitation after the date of
discharge, on the right to modify the penalty of discharge has
been accepted by the Divisional court in Re Queen in right of
ontario and Grievance Settl,ement Board et ale 27 Q.R. 735,
quoted in OLBEU(Creighton) (supra) as it relates to the
jurisdiction of this Board, where the Court stated:
As is well known, in excep~ional cases when a
convicted person has made significant progress
towards reformation or rehabilitation while
awaiting the hearing of an appeal, the Court of
Appeal will take s:uch matters into account and
modify a sentence accordingly. I can see nothing
wrong or beyond its power when the grievance
settlement board acts upon similar principles.
This principle has been applied in many Ontario cases, such as Re
Canada Post Corp. and Canadian Union of Postal Workers
(supra).
I therefore find that I have the jurisdiction to
consider all the circumstances that may be relevant to determining
if the penalty should be reduced. That includes a consideration
of whether Mr. Moore would be likely to continue with such
offensive behaviour should he be reinstated.
On the evidence before me, as of the date of Mr. Moore
giving his testimony, he had over the preceding years since his
termination made excellent progress in his battle against
'J
'J
~ .
>
Page 91
alcoholism. He has been abstinent since December 18, 1992 . Given
his abstinence, Dr. wilson placed a high probability of continued
abstinence and did not believe that Mr. Moore would engage in this
behaviour again. Similarly, since Mr. Moore has taken his sick
leave and has been terminated, he has had the benefit of extensive
psychiatric help. At the time of hearing he believed he would
require approximately six months more of treatment. In Dr.
Simson's view there was little likelihood of Mr. Moore repeating
this conduct.
The issue is then, whether Mr. Moore's rehabilitation
from alcohol, and the success of his psychiatric treatment ought
to be mitigating factors in this case. Mr. Moore's post discharge
actions have been commendable. However, for it to be a relevant
mitigating circumstance, it has to have a bearing on his conduct
that precipitated the discharge.
Although the statutory basis of the Compagnie Miniere
Quebec Cartier decision and the facts of this decision is
different, Mme. Justice L'Heureux-Dube raises an important policy
issue. Mme. Justice L'Heureux-Dube pointed out the danger of
accepting post discharge evidence of rehabilitation from alcohol
dependence as placing the Employer in an open ended form of
liability. The employer would never know 'when an employee who had
been discharged, may attempt to obtain his job back after
~
undergoing successful rehabilitation. Blind application would
mean that effectively an Employer could never discharge an
alcoholic, or least not until such time as an absence becomes
likened to a discharge based upon the incompatibly of the
continuation of an employment relationship such as innocent
absenteeism Mme. Justice L'Heureux-Dube also pointed out that a
grievor could control the timing and delay arbitration hearings on
the basis of his success and lack of success on rehabilitation
programs.
The grievor conceded that the allegations to which he
,~
^ "
'.)- -
Page 92
admitted constituted just cause for his dismissal, if the
allegations were considered in isolation. Although there is some
relationship between his past history and his behaviour in the
work place, it still begs the issue as to whether his past history
and alcoholism excuses his behaviour to the extent that his
penalty ought to be mitigated. This requires a balancing between
the obligation that the Employer has towards the other employees
in the workplace and the obligation that the Employer has towards
this employee.
The offence was serious. The right of employees to work
in a harassment free environment is one that not only has been
legislated, but has been emphasized by the parties by the
inclusion of this obligation in their collective agreement. It
includes a freedom from sexual harassment by another employee.
The parties have also defined harassment as "engaging in a course
of vexatious comment or conduct that is known or ought to be
reasonably to be known to be unwelcome." Although in the case of
Re Ott.awa Board of Educat.ion (supra) Arbitrator Bendel had
doubts as to whether the objective standard set out in the Human
Rights Code has its place in a discipline grievance, in my view
it sets the tone and the standard against which the culpability of
the employee is assessed. Although the focus in human rights
cases is towards the victim of the harassment, that does not
lessen its applicability to the assessment of the culpability of
the conduct of the grievor. Therefore when one assesses the
gravity of Mr. Moore's offences against this standard, one finds
that the standard is seriously broken. Mr. Moore's conduct was
such that a reasonable man would have known that it was not
welcome or acceptable. Management held two seminars on harassment
and conveyed the message that harassment was not acceptable. The
message was clearly understood by Mr. Lewis, and even by Mr.
Moore's friend, Mr. Sargentson. Mr. Moore failed to give any heed
to the seminars, and did not modify his behaviour.
Alcoholism and childhood abuse do not give licence to
- ---~
,-
"
~ ~
-> - Page 93
act in a reprehensible manner Mr Moore's alcoholism, and the
abuse he experienced as a child, although contributing factors to
his behaviour were not direct causes for his behaviour and did not
negative his intent. Although I have jurisdiction to take post
discharge evidence of rehabilitation into account, it is not just
and reasonable to do so in the circumstances of this case, where
the conduct is abhorrent, his conduct does not relate directly to
alcoholism and past abuse, and rehabilitation does not relate
directly to the cause of his conduct.
Although rehabilitation is often a mitigating factor,
there is still the underlying premise that mitigating factors if
they are going to reduce the penalty, must outweigh the gravity of
the offence. After reviewing all the circumstances in this case I
find that the Employer had just cause to terminate Mr. Moore.
With respect to the issue of disproportionate penalties,
Mr. Moore and Mr. Lewis were not treated any differently in 1991.
In 1992, as a result of the harassment seminars, Mr. Lewis
modified his behaviour, and there was no basis to discipline him.
Mr. Moore went to two seminars, and yet refused to take notice of
the message that they were conveying. Mr. Taylor received an oral
warning and a counselling letter for the YY incident and a ten day
suspension and a demotion for his lack of management abilities.
For various reasons he also lost merit increases. When assessing
their respective conduct and penalties, I have not found that the
penalty that Mr. Taylor received for his participation and for his
lack of management was so disproportionate so as to make the
penalty received by Mr. Moore unfair and inequitable.
In many circumstances, an apology and a recognition of
the nature of the offence and the impact of the offence is an
important mitigating factor, as the r~cognition of wrongdoing is
generally a reflection that a similar incident will not occur
again and is a step towards harmonizing continued relations. Mr.
Moore did admit to many of the allegations to the investigator,
------ -
--
ro-
"
~ .
\ll .,
Page 94
but disagreed as to the context. On the second day of hearing, he
admitted to seven of the allegations, and admitted that his
actions would normally constitute discharge. By admitting that
the effect of his acts would constitute just cause for dismissal,
it saved the students from testifying and it shortened the hearing
considerably. At no point did he apologize for his behaviour or
show any sincere remorse for the effect that it may have had on
others. His regret and focus lay on the effect of the alcoholism
on his life at the time. His acknowledgement of wrongdoing is not
in the context of this matter, persuasive enough of a mitigating
circumstance to substitute a lesser penalty than dismissal.
Mr. Moore's conduct was to the degree that it was
incompatible with a continued employment. The grievor breached
the trust that the Employer must have in each and every of its
employees in their relationship with the other employees, although
there was no problem with the performance of his work and he had
been commended for his contribution. In reviewing all the
circumstance, I find that the mitigating circumstances that of
long service and the acknowledgement of wrongdoing, are not
sufficient to outweigh the gravity of the offences committed.
The Union argued that the Employer by failing to provide
the grievor the LTIP forms and by discharging him denied him his
fundamental right to long term disability.
I note at the outset, that there is no evidence as to
whether in fact Mr. Moore would have been successful in obtaining
long term disability. Although it is important to preserve an
employee's right to long term disability, it should not unduly
interfere with management's right to control and managed its
"
workforce. The cases presented to me on the effect of long term
disability benefits on the discharge of an employee all revolved
around cases of innocent absenteeism. Those cases are
fundamentally different from a discharge based on cause. As
Arbitrator Samuels stated, in Re Kelsey Hayes Canada Limited
r,.
v
'~
~~ .
Page 95
Windsor Division and U A. W., Local 195 (unreported May 17,
1982) as quoted from OPSEU (FOwler) (supra):
In short, the agreement between the parties
contemplates long term disability, and provides for
insurance for this contingency. In this situation,
it would not be reasonable to allow the Company to
preclude an employee from taking advantage of this
insurance by discharging the employee . This
agreement provides protection for the disabled
employee, and it must therefore, by necessary
implication, remove the basic right of the employer
to discharge an employee who can no longer perform
the work. If this basic right still prevailed, of
what value is the insurance? If the agreement is
~eant to be applied in good faith, then necessarily
an employee must be able to take advantage of the
disability insurance when he becomes disabled while
an employee of the Company.
In essence, if a person is di~charged for innocent absenteeismr
whose very basis for the absenteeism is an illness, then it would
be contrary to the purpose of long term disability, and
inequitable to deny that person coverage, when the criteria for
entitlement is triggered. There may even be limitations on this
right, as indicated by Arbitrator Swan in Re Queensway General
Hospital 17 L.A.C. (3d) 9:
"It is our view that, as a general principle, an
employee covered by this collective agreement has
substantial rights, in relation to long-term
disability and any dispute arising out of the
implementation of the plan, which depends upon the
status under the collective agreement, and which
ought not to be ousted by the employer until it is
clear, that whatever benefit the employee may
derive from employment status has been spend. At
that time, in our view, the employer is left with
what Mr. Samuels calls in the University of Windsor
case "the traditional position" - the employer may
terminate the employment of an employee who was
unable to perform his or her work, and in respect
of whom there is no reasonable prognosis of regular
attendance in the future Obviously this position
would be reached more easily were it clear that a
former employees' rights under HOODIP could be
--.-
--. -. - -
'" "-'= ~
- -
- f.' ......
'J
f f
~
Page 96
,
protected by an association grievance under c.
12.07
In other words, it is not our view that the
employer is prevented from terminating every
employee who is still receiving benefits under the
long-term disability plan.... We think that there
will be circumstances where the prognosis is
sufficiently clear, and the employee's rights
under the long-term disability plan sufficiently
established, to permit the employer to terminate on
the traditional grounds.
The facts in this matter are different from Re Kelsey
Hayes (supra) and Re Queensway General Hospital (supra). Mr.
Moore was not discharged for alcoholism, and I have found that
alcoholism was not a direct cause of his conduct. I also do not
believe that without the impetus of the allegations, the subject
matter of Mr. Moore's discharge, that Mr. Moore would have decided
to take sick leave at that time. The mere fact that Mr. Moore may
have had a claim for long term disability cannot on its face,
preclude the employer from terminating an employee for cause.
I therefore find in the circumstances, that the Employer
had just cause to dismiss the grievor and the penalty was not
excessive. This grievance is dismissed.
I would like to thank both counsel for their thorough
and capable presentation of the evidence and argument. I
appreciate the well researched points of law in support of each
party's position, which I hav;e read, although not used in its
entirety in the decision.
Dated at North York th~~th ~f November 1996
~ -
'Belinda A. Kirkwood