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HomeMy WebLinkAbout1993-2138.Fairman.95-07-31 I I .-- - EMPLOYES bELA COURONNE \ ONTARIO CROWN EMPtOYEES DE L'ONTARIO to-b ~ -" GRIEVANCE COMMISSION DE t>Du9 1111 SETtLEMENT ' ' \(\v :;') REGLEMENT -~- '~.\ ~ <. c,\: ' D\.7 : BOARD DES GRIEFS ' Lc;~f 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. MSG lZ8 TELEPHONEITeLltPHONE, (416) 326-1388 , '-- 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO} MSG lZ8 FACS/MILE/TIOLI=COPIE (4161326-1396 C~.' '." ---'-"'"'Z'-_~I..,... .."":....J;::.w;;-::~~,~~a:.;;~ GSB # 2138/93 RECEiVED OPSEU # 94A024 AUG n 1 1995 , PUBUC SEHViCe IN THE MATTER OF AN ARBITRATION APPEA~ BOARDS Under -.. THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD '1 BETWEEN '- OPSEU (Fairman) #. 1! Grievor - and - I I The Crown in Right of ontario r I (Ministry of Correctional services) Employer BEFORE: R. verity Vice-Chairperson I Thomson Member r F. Collict Member ./ FOR THE G Adam~ GRIEVOR Grievance Officer Ontario Public Service Employees Union ) FOR THE M Mously EMPLOYER Grievance Adrninistration!Officer Ministry ,of the Solicitor General & Correctional services HEARING July 22, 1994 October 4, 1994 November 23, 1994 Janua'ry 16, :p, 1995 ~.. I ~ April 13, 1995 I I L-- _. -- - -- -- -- I i__ \ \ ~ 2 )- " " . , - ,~ >J D EC I S ION , -, ~., " The grievor, Douglas Fairman, a <;orrectional officer 2 at MiIl'b'rook Correctional Centre,.received a five day suspension for '''sexual harassment by inappropriate touching." .t~ .f'\ .i. ,J.,1 -.? ~ _ . 1 The alleged, l1arassment involved Tamara Look, a female probation and parole officer on -. ; , ~ August 3, 1993 'at the Millbrook facility The grievor Claims that lie was unjustly disCiplined. He seeks compensation from the employer and a written apology from Mrs. Look. The complainant and the grievor gave totally different versions of what was ~lleged to hav~ transpired. Mrs. 'Look testified that at approximately 8.45 a.m. on :the day in l' !' question, while she was standing in a stationary posItion m the hallway north of the bull pits ....;.;.. of the medical centre talking With psychometrist Robert- McScheffrey, the grievor I deliber~telyrubbed his arm across her buttocks. According to Mrs~ Look, when the incident l , occurred she Was standing "almostJn the comer" to the left of the l,lledical centre doorway ,. ( \ with her back to the dopr some two feet from the wall (Exhibit 6A). \ ~. J r - ) By all accounts, Mrs. Look was very upset by the incident and asked the grievor what '- ."... ~ , , he thought he was doing. According to Mrs. took, the grievor replied that she had been moving from side to side and that" it had heen an accident. Mrs. Look did npt accept that explanation and told the grievor that next time he was to make "a wide berth" around her Although the complainant did not see the contact, in her words she felt the grievor's arm '-' , \ "brush across my buttocks fro.Q1 one side to the other II The thrust of the complainant's ( i ( v 3 evidence was to this effect: that the unwelcomed incident lasted approximately two to four seconds;. that it was not accidental;' and that the grievor made no attempt to apologiz~ for ~ / his conduct. "q~ ....' ...,.,. .:(' r'1._ '~' ~ 't - 1 ~; -..The ipcident sufficiently upset Mrs.Lo?k that she immediately reported it to her I ' husbaIld, a correctional officer at Millbrook, Jnd to her supervisor in Pe~erborough. In- , i. r iLL _.. " addition,..she:pied ~n incident report on Augus~ 4, 1993 (Exhibit 2)~ For his part, the grievor .~aintains' tha~prior to :the incident he had escorted an '-( .' ~ r inmate. 'from the medical cen1fe~ north to ~ehallway and eventually to the east-west . . 1! ' ~ -~\ corriqor The grievor tes~ed that at the time the .contlct took place he had just finished '! speaking oIll1is 1:W<rw~y radi~ and was in the process of watching the inmate walk in a . "., westerly direction doWn the east-west corridor <,.According to the grievor, while he was \ 'Ti:>y ..? )- i st(ltionary, lIe "felt someol;le brush past me" and tumedaround to see that it was Tamara -":'1' " Look. According to the grievor, 'he was ilsomew~at confused" at Mrs. Look's reaction and I' ,- upon seeing, unit supervisor Mannerow standin~ in the d<;>orway of number 5 wing, thJ I I I ' griev<;>r stated, "Jim djd you see that she backed fhto me?" The grievor recalled that at the ~ .". -- f"::' mOplent of conta~t he was facing west tqwards the chapel, that Tamara Look was facing east . <f'. \~ <1 and t~at Serg~ant Manner<:>,w "was facing ~outh(9d1ibit 6G). ~ ._ ~ ~ ~~ - 'f The incident was subsequently investiga:~d ~y, Chief Investigator _Glenn Trivett of the Ministry~s Inqependent Investigation Unit (I.I.U). Mr Trivett is a detective with the ) i ~- \ ,- \ 4 Ontario Provincial Folice' who,at the time was on seconPriJent with the,then-newly created ( I.I.U According to his evidence, it was an "informal investigation";in which he Was to report to MillbroOK superiiItendent Carl Degrandis rather than toth~ Deputy Minister "\v-. ,~ l . - 'Investigator lrivett interviewed :the complainant. and the respondent on September 28, 1993, and In additioIihe interviewed other employees who, allegedly were in the vicinity; namely/Robert McScheffrey, James Mannerowand Ted Kemp. Unfortunat~ly, Mr Trivett failed to interview the only eye witness tq the,incident; Correctional Officer Doug Coombs. fvIr Trivett made notes of each interview in point form, in his words. limy syn,opsis of what was said. II -, -, l' 1 \ fuvestigatorTrivett prepared a written report, dated September 30, 1993, which he submitted to Superintendent Degrandis the following~'Monday (Emibit -3}. In sum, the finding was that the allegation of "inappropriate touching" was substantiated. I < -, I - '-- , ~ There is no dispute that the complainant identified Carrectional Officer Coombs as - a witness to the iricident. ]nvestigatOi"Trivett testified that'Coombs"was-not:working when he conducted the investigation on Septe,nber 28 but tl)at he attempted to contact Coombs by telephone without success and left a message on his answering machine. For his part, Mr Coombs testified that he does not have an answering machine. Correctional Officer Coombs testified that an October 6 he fbund a mes~ge in his mailbox ,at work from Superintendent Degrandis with the .request that hecontact.Glenn Trivett. Mr Coombs dId \. '\ ( ( 5 /' not follow up on the message' and promptly l~ft on a ten day moose .hunt. ! I,. l' ~ On October 28, Superintendent D~gran(Ji~, :q1et with .t:qe grievo,r ~nd his representative to discuss the allegations. ~ the disciplinary letter that followed, the ',' superintendent noted the grievor's statym~~~ ,th~t h~ :had not .deliberately touched the ! complainant arid that It was the comPlainantw1q ha~ backe~l ipto him. In ~posing the five day suspension, Superintendent Degrandis reved u.pon. ,tl;1~ finding!:? of the!nvespgatiori report ,and .,the complainant's. version of eventst " ~ tt\...d~ ," ( I -. I i ~ On Nove1I}.ber 4, after discipline had beJn imposed against the grievor th~ previous " day, Correctional Officer Doug Coombs vol~ntarily filed an ~rrence report which described in general terms that he. had: seen .:b~ ,inCIdent and tha~i in,~is, opinion, the physical contact was accidentaL. .- " i,"""l;.i - I '- I " I ~t the hearing, Ted Kemp testified th&thl was aware that a collision had taken place between t1ie complainant and the grievor but th~t .J>e did not see it. Kemp said that he was I standing'in the"lDedical reception area and"l1otiteclth~ grievor an~. Mrs. Look, standing in the centre of the east-west corridor;some,iO {e~~away ,< I " \ . I RobertM<;Scheffrey testified:that his,reco,e~ti,Q~ of events ~':ls"sketchy" 1?~t that the incident took place wi~in the medical corridor klld the ;parties had not then entered the bull pit area (EXhibit 6C). Accprding tQ hi~ recJllection,' he wM..sw.l!~hng talking with the /' I I I ----- ~ I \ \ ' { 6 compiainant who was also in a station~ry pO~ltion. ( ~' ., \ . .. James Mannerow was standing in the control room of #5 wing when he heard a commotion in the hallway He testifie<I that he heard the complainant's voiCe but could not recall what wa~ said. He further testified that he spoke with the griev,or after the incident J- . but did not remember whether the grievoi"said that the complainant 'hadbac1~ed into him ~. . ' , _.~.! or that he -had backed into the complainant. He'testifieCl that the incident had taken place in the east-west corridor in a location where there was ample room to get by without a I cpllision. ~: l' r Doug Coombs is currently a union steward who was vice-president of the union local. \ Mr 'Coombs testified that he wi1nessed the physical contact between the grievor and the complainant on August 3, 1993 fIis evidence was to this effect: that ,he' was' standing facing ,_. -., west at the northeast comer of the hallway leading to the medical' centre; that tb,e, grievor , " t was standing facing west and parallel to him and was taIkiIig on his radio; that Tamara Look , /' was standing talking to someone and facing in a southeasterly direction, that the) grievor \ proceeded to Ipwer his radio and turn around: in-a clockwise directidn-'and,in so doing "toof a few steps hackwards at the same time" AcCording to Coombs, the, grievor' "mdre or less '. ~ just walked into her" and' that his right hand or the radio itself had touched the -. \ complainant's buttocks. Mr Coombs had no difficulty recalling the exchange of words r 1;>etween the complainant and the grievor and the fact that the complainant was very angry \ ! ( . I I 7 ! Mr Coombs testified that ,~e( spoke~th the compla~ant after the incident had I \ occurred and that the complainant told him t~at the grievor had done this kind of thing before. Mr Coombs testified that he a4vised, her that it was not intc:rntional but that the complainant repli~d ~at he (~~ grievor) '\vasft going to get away with it." \ Mrs. Look !<,stified that there was no ,JftOry of any conflict between her and the grievor However,. .she. char~ct~rize9 the griev~r as a "touchy" type of per~on and that on . i" ' , I some five or six previgus gccasions the gr:i~vor had placed his hand on her hand or forearm - ' "1 i while speaking with her i \ \ # ~ For the employer, Mr Mously contends the grievor was not a ,credible witness and that the evidence established that the collision ,ad been initiated by the griev\,r Counsel for the emplQyer .questioned the reliability of Officer C09mbs' evidence g~ven his apparent lack of cooperation in the investigation process ~d liis filing of an occurrence report after discipline had bel'n imposed,upon Fairman. The ~Ollowing authorities were cited in support " ' ~I 'f I of the employer's po~ition. ~e Government of Province of Alberta and Alberta Union of -" > " "1 : . " Provincial Employees (1992), ,29 L.A.G. (4th) 35~ (McFetridge), Re Canada Post Corp. and .. 'w.. -, 1 , i" l Canadian Union of Postal Workers (1992), 29 LA.C. (4th) 318 (Shime), and OPSEU 4. " ., (Leering)an~_Ministry of Natural Resources. GSB #1105/84, #1106/84, #1401184 (Verity). r In opposition, the ~nion ~rgues that the mvestigation was faulty in a number of respects and should be set aside. Mr Adams submits that the evidcnceof Doug Coombs, I J I I '. t ( 8 w~i'e not <;onfirmiug ~f1tirely the grievor',s, vers~on of.ev~nt:&, ,sllould, resolve the matter in ..' . ~_.. " I~ I ',. '1 the grievor's favour The thrust of the union's case. was that thedncident was an accident. ~1:i -If,.. \ ,; ~+; ..\.~ ) In this case, the alle~ation'againstthegrievor of "s.(1xual,harassment" in, the workplace ..r .... F: "... -. \ is indeed a serious marter,. iA~ordingly, whensenous personal misConduct is alleged to \... . ~ - ~ ,j. ~ "l.. . have occurred, th~ civil ,stcindard: of, proof "on th~ balance of profja,~pities" requires ,clear and' cogent evidence. - ,J,' t 1 l. ~ ,- f!t .- f. ,:".,..! .i , The grievor does uot deny that contact occurred, between ,~'aud the complainant r-' - 1 . in August 1993, 'a1tl~ough he w~ uncertain as to what part of her body twas touched. On $ ~ the other hand, the complainant was adamant that the grievor rubbed his arm across her f - ft buttocks. The real issue, we think, is whether or not the contact was intentional or I ..f...._ accidental. '4- "1 ,~ There were several versions of what was alleged to have occurred which, in turn, \ require this panel to ~ake a number of credibility determination~. In that r~gard, it is . J ' useful to repeat the oft-quoted rationale of Mr Justice O'Halloran of the British Columbia Court of Appeal in Faryna. v. Chornv. [1952] 2 p.L.R. 354 where nestates at pp. 356-7 If a trial Judge's fuiding of credibility is to depend solely on which person he thiri.ks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a ,witness. Opportunities .forknowledge,powe~ of obsetvation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v.\' Bosanquet (1919), 50 D.L.R. 560 at p. 56~, 59 S.c.R. 452 at p. 460; 17 ( \ I, e-. ..i~. 9 o W.N ,~95 Awitne~ by his manner ma)' create.. very ~1,1!'av?urableimpression of hiS truthfulpess upon ;. the trial Judge, and yet the surroundillg'circumstincesm the case may point decisively to the'concluSIon that he is actually telling the truth. I am not refdrring to the comparatively infrequent cases in which a ..:'i witness is caught in a -cltimsy,1ie. \ The credibility of interested witnesses, particularly ~ cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour o~ the particular Witness carried conviction, of the truth. The test must reasonably subject his story to an exiunination of its consistency with the probabilities that surround fIle currently existmg conditions. In short, the real te~'of the truth of the story of a Witness in such a case must be its harmony with the prepbndera~ce of the probabilities which a practical and ~orme~.perso~ wqul~ readiJy ~c:ognize a.s re~s6~abl~in t~at place and:in tho.se con~ti~ns. O;n1y thus can a Court satisfactorily appraISe the testunony qf qwck-mmded, expenenced and confident Wltnesses, aJl.dof tP9~ shrewd persons adep,t in the half-li,e aJ;ld of long and successful experience iti combfuing ~kilful exaggeration'with' partial suppression of th~ truth. Again a witness'may testify what he sincerely believes to be true, but he may be quite honestly mistak~n. ,For a trial Judge to say "I beli,eve him because I judge him to be telling th~ truth", is to come to aleonclusion on consideration of only half the problem. In truth it may easily be self-direction of a danger!)us kind. ' f The trial ~udge ought to go further and say that e'idence of the witness he believes is in accqrdance with ~., the preponderance of probabilities in the case an'" if hiS view is to command confidence, also state his reasons for that conclusion: The law does not clothe the ,trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appteal must be satlSfied that the trial Judge's finding of credibility is based,t;lOt on one element only to th~:,exclusion of o~ers; I?ut is b~d on all the elements by which ih:an be tested in the particular case. 'l;f.t'l' ~ ~ We have no difficul!y accepting the co~plainant's evidence that, it was the grievor's arm that rubbed across her buttocks. On the e~dence, we are satisfied that when contact occurred the grievor was in a stationary position land that she was in the process of speaking I with Robert McScheffrey However, her evidence as to the location of the incident is not , - I 7 in harmony with the prepon4erance of probablltties. j \ I i: 1 On, balance, we find tl1at the more prop able account of what occurred and the '1" r location of the incident are estabhshed on the evidence of correctional officer Doug Coomb~. We accept his evidence, without rese~tion, that conta~ occurred between the complainant antl tlte grievor while the ,grievor ~as in thepI:ocessof lowenng hIS two-way I radio and at the same time taking several steps'baclrwards. m particl,l,iar, we are satisfied \ I , \ ) I I 10 f that the contact was accidental. , J ( i In suspending the grievor, Superintendent Degrandis relied up9~'the findings of the investigation report 'of Glenn Trivett. We do not fault the superintendent for making his decision on the evidence then available. However, this panel has a number of concerns regarding Mr Trivett's investigation. Because of an apparent misunderstanding, the investigation was not conducted in a timely fashion. Similarly, prior to submitting the report , , to Superintendent Degrandis, Investigator Trivett failed to intervie~ the only eye witness - ) I to the incident; namely, Correctional Officer Coombs. all the evidence, it is apparent that both the complainanfand the grievor told Mr Trivett of the .involvement of Doug Coombs. , t r On ,the other hand, had Mr Coombs taken the initiative to inform management of his involvement in a timely fashion, this matter may have bee~ resolved. Similarly, the matter may have resolved itself had the grievor made any attempt to apologiz~ to the complainant, as he should have. Obviously, his failure to apologize fortified the complainant's sUspicion that it had been a deliberate act. For these reasons, this grievance must succeed ona finding ~at the employer had no just cause to impose discipline in the particular circumstances of this case. The grievor shall be fully compensated for all lost wages and any reference tt? this incident shall be removed from the grievor's records. This IS not a case where a written apology is \ ~ ! ,( I ( v ~~ I \ " - 11 appropriate and accordingly we make no such prder I \ I i DATED ~t Brantford, O~tario, t4is 31 'I day of July, 1995 ), : ~~~ ~-.4~7' I ~ R. L. VERITY, Q.C. - VICE-CHAIR ,- I- I I y ... ... .......~..................... I. OM I I , '.~ - VI;LJ __ I~' A..... (addendum attached)~ . .. ................... ...................... ... ........... ....... .................... ~..... f' . F. CO, - EMPWYER MEMBER , I /' " 1 I \ ,.." \ \ / V - r \ r I i i ) ~ I~ " \ f- C" ; - ADDENDUM - , I. j .J ': (FAIRMAN ~ MCS - G,S,B. #2138/93) I I I I , I I This Member IS In agreement with the position set out In this award at page 8 as/ollows I I I I I I - ; I "The real Issue, we ~hInk, is whether or not the contact was mtentional or I I ( J ~ , accidental." ~ . i , and, \ \ <<In thIS case, the allegation agatnst the gnevor of "sexual harassment" in the work place IS mdeed a senOl~S ~atter 'Accordmgly when senous personal ffilsconduct IS alleged to hav~'occurred, the CIvil stan~ard of proof !'on the balance of ,~ r probabilities" requires clear and cogent evidence. . " .~. , ) \ ~, ~ -, tZ:"- (undersconng added) '\ I -, As to whether or not there was clear and cogent ~Vidence to prove thahhe Incident was either mtentional or accidenta1, the eVIdence appears to <<boil down" to the following: - ". '~ 1 The complamant, Ms. Look, reacted to the contact Immediately She was vIsibly angry and ~he mimedlately berated Mr Famnanverbally The angry demeanour r . / .and- comments' were observed anq :heard by wItlw~s,es. ~ r 2' Ms. Look.also lInmedlately. returned to her office, spoke to her husband I concerrupg the InCident by telephone ~d also pnoned'her supervisor In I Peterborough to dlscuss,the mattyr She prepared a memo concenung the mCldent I L and faxed It to her supervisor the next day (Exhibit - 2) ) \ \ '-' I " I 3 For hIs part 10 the incIdent, Mr F~lfman, Immediately after the Impact, said \ nothmg. He did not "grunt", say ~omethmg lIke ~ "excuse me", or "whoops?", or even apologize for the contact In ~ny way Rather, by hIS own test/many, he turned to ~,~rgeant Mannerow wh6 was standIng m the doorway of #5 w10g ahd j said, "jim. DId you see thai? Sheibacked mto me." Sergeant Mannerow's testImony was that he dId not obsJrve the contact. ~ f I I 4 j In testimony, Mr FaIrman stated that the "bump" or "brush" would have taken j , 'I one second. Ms. Look stated that the "brush" across her buttocks would have \ taken between two and four seconds. I 1 \ 5 CorrectIonal Officer D Coombs, who aho was Vice PreSident of the Uruon local at t~~ time of the in~Idel1t. stated' th~t he h,~d' seen the phYSIcal contact between the I grieVor and the complamt. He was 'the .cmh! witness who testIfied to haVlng seen the phYSIcal contact. He stated that It was an accIdent. For reasons to follow later , in tlus Addendum, Mr Coombs' evidence IS not partIcularly credible. \ I I 'I Give!) the above mformation. therefore, the questlO-rtfor tius ,Board IS essentially as set out m 28 L.A.C (3d) at pages 247.248.249 (Re A.B.F FreIk~t Systell}s (B C) Ltd, And General Truck .;- Dnvers and Helpers' Uruon, Local 31), ( j \ "IQ discIphne cases. the law IS very cl\ear in tl1at an arbItratlOrl board must ask Itself ., r Has the employee given Just and reaspnable' cause. for some form of discIplme by hI' ? \ t e emp oyer. \ 1 (page 247) In determIrung the answer to the - question. one"must decide the critical Issue of the standard of prOQf whIch IS requ~red mcases of tills nature. In most matters that come before an arbltratlOn boardJ the app'ropnate standard of proof 15 the CIvIl burde'h whIch reqUires that the party assertmg a certam fact prove that'allegatlOO$to "the balal1ce ofprobabiht~es" or, to pt1t It another way, "on a preponderance of the eVIdence" (i e,. more likely than not) I '~, ( However, cases which Involve allegations of senous misconduct have generally required a higher test, but one which falls short of the cnmInt\1 burden of "beyond a reasonable doubt" . - ~ ~. Vanous arbltr*ors ,have adopted different tests m cases of senous misconduct. Some arbItrators have used the ordmary cIvil test, whtle others have m fact adopted a crlmmal standard and reqUIred the employer to establish its case "beyond a reasonable doubt" (page 248) In recent years, Canadian arbitrators have generally adopted a third or r " , t "mteffi1edl~te test" which requires more that at mere prepon~erance of proof but falls short of requmng an assertion to be proved beyond a 'reasonable doubt. Brown and Beatty, Canadian Labour ArbitratIon, 2nd ed. (1984),para. 72500, p 348, have noted that. -, [some] arbItrators have recogmzed that a standard such as "the balance of probabihtles" IS a van able rather t~an a precIse ,formula and one wluch w!ll change with the :clrcumstances of the case. Qn tlus View, the more senous or reprehensible the alleged misconduct, the more stnngent the 1 1'_ 't , standard ofproofthatJs required to besatlsfied. The Supreme court of Canada Itself has recogmzed the deSirability of a more stm':1gent test and has stated that It would. m civil cases, require a higher degree of , ' probabilIty which IS commensurate with the nature of the allegatIOn. The court has J stated that "[w]lthm the broad category of the Civil stan~ard. there eXIst dIfferent degrees of probability depending 6n the nature of the case." \ (page 249) \ (uridersconpg added) I Based upon the Civil court standard of proof as measured on "the balance of probabilities", or "on \ a preponderance of the eVidence", tlus Member would have concluded that Mr Fairman did, ( Indeed, Intentionally and Improperly touch Mrs. Look. Tms conclusion clearly would have been In concert With the conclUSion reached by Mr Tnvett subsequent to hIS investigation. However, when the facts oftlus case are viewedagamst, - the "backdrop" of the above CIted junsprudence, - the senousness of the allegatIOn of "Improper touclung" and the potentlallmpact upon a long serYIce employee With an unblemished record, and - the context of thiS case that Involved either, ( " .~ 1 a simple "bump" or "brush' which the gnevor claims was accldent?1 and j 'Involved a time penod of Q le second, or 1 2 a "brush" across the buttocks, - 'which Ms. Look claims was intentional and / was of a two to foursecon1, duratIon; . . ,- \' this Member wO!Jld conclude that the test Fequinng clear, strong and coqent eVIdence has ll.Q1 been met. \ ' ~ \ .-'!, In consideratIOn of the above, therefore, thIs Mem1?er does su.ppoq the maJonty award 10 thIs I case. r \, \ \ With refer~nce to Mr Coombs testimony the following observatIons may be made. " \' I 1 1 His wntten report of the mCldent w$ not prepared until Nov 4/93, three months I t 'affeftheincident occurred (Aug. 3/9() Hi~ verbal testimony w3;s givenm early 1995 I - 2. No WItness, mclud10g the gnevor, recalled'Mf Coombs 10 the area ofthemcldent. I , The complamant recalled Mr CoomBs' proxmuty~to the area, but she stated that ,. I he was 10 the medIcal department - atl best, at the entrance - and not at the elevator i 10 the hallway where the mCldent occurred. I ~ l i 3 Mr Coombscotild nQt recall that Mr \McShe~ney was spea,kmg to the complal,nant 10 thel)aUway at th,e tlme\ofthe 1O~ldent, -and yet, the eVIdence was I that Ms. Look was stanqing still and t~k1ng,to ~ McSheffney (tt the time of the contact. f 1 l' I 1 I I I !! t& :.; ( 4 Mr Coombs knew that Ms Look was a~gry about the incident and that she stated \ ( "he would not get away with It", and "he had done It before" As Vice President - of the Umon Local he knew of the InstitutIOn's concern with reference to matters ) of this nature, and yet he neither prepared a report on It nor tned to effect some l ) ~ reconciliatIOn between the two parties. 5 On Oct. 6/93, Mr Coombs picked up a note from hIS mail box which was a request or mstructlOn from Supenntendent De Grandls forMr Coombs to contact Mr Tnvett ofthe I.I.U (Investigations Umt) Notwlthstandmg Mr Coombs' \ knowledge and understandmg that L1.D mvestlgated complamts of sexual harassment, he stated that, - (a) he did not bebeve that he had to respond to Supt. DeGrandis' role because I 11, " , It was only a request, and not an mstruction, and I (b) he felt that the onus was upon Mr Trivett to contact him. r He therefore Ignored the note from Supenntendent De GrandIs and went on a moo~e huntmg vacatlOn for ten days. 6 Mr Coombs stated that rumours in the Institution are "never endmg" However, I he contended that altho~gh he was Vice President of the Local, he did not know \ on Oct. 6/93 when he received the above referenced note that there was a sexual harassment complamt agamst Mr Fa1I1Tlan or that other CorrectlOn Officer colleagues had been mteI'Vlewed by Mr Tnvett about the complamt on September 28/93 He further stated that he had returned from vacation around Oct. 16/93, but had no knowledge of the complamt or mveStigatlOn until Nov 4/93 when he l... learned that Mr FaIrman was to be suspended. I .------..... - ( -":; .. ,,<0 \ , 7 f~n~lI.Y Mt Coombs testimony was that at the time of the bUQlp or brush, Ms '" I..i' , ; ') .' -, ~ Lool< w~s faymg chr,ec;tly towqrds hlmano Mr FaIrman was directly behmd her ,-- v J. :[j 't ,l' Acc.9fdmg1y, hy could notl1<lve seen what h?pp~ne9 II? the regIon of the buttocks / -" 'n ) ~' c - In total, therefore, altHough Mr CooQ}~swas the only wlt1)ess w~,~ st~tedthat he saw the IncIdent and concluded that it was an accident, for reaSons cited a~9ve, the testimony did not, In the View qfthlsMetpber, assist the Board. , " -1 ~ ~.k "- I .... i+ 4. ~ \ c \ I ':"',). ~ t. r. ~ 9Qicd -_/~' j, FT , 't, Jr&; d 0/9 S- . -, ~ .;..... ~ ". {, i ';:'r t h -- ..., ~i t;f " ~-:.t 1 - ~ _,. I t,.- ~ ~ \, t ,(~ ( - ~ ~ '-- - -- --- - ~ ------