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HomeMy WebLinkAboutR.J. 19-03-25IN THE MATTER OF AN ARBITRATION BETWEEN: COMMUNITY LIVING MISSISSAUGA (Hereinafter referred to as the "Employer" or "Community Living") - and — ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 251 (Hereinafter referred to as the "Union" and/or "OPSEU") Final Decision in the matter of the Grievance of R.J. alleging termination without just cause JOSEPH D. CARRIER Appearances for the Empioyer: Mr. Dirk Van de Kamer Ms. Maria Delfino Ms. Debbie Moffatt Mr. Keith Tansley Appearances for the Union: Ms. Archana Mathew Mr. Robert Jones Sole Arbitrator Miller Thomson LLP H.R. Director Director of Quality and Community Development Executive Director Regional Grievance Officer Grievor Hearings in this matter were held in Etobicoke, Ontario on the following days: November 15, 2017, April 23, 2018, June 5, 2018, September 11 and 25, 2018, November 29, 2018 FINAL DECISION On November 9, 2018 k released an interim decision concerning an admissibility issue between the Employer here, Community Living Mississauga, and the Union, Ontario Public Service Employees Union, Local 251. The interim decision dealt with an admissibility issue concerning a counselling letter received by the Grievor some years earlier than the incident leading to his termination_ For the reasons set out in that earlier decision, I found the letter of counsel admissible for limited purposes. Be that as it may, in the initial introduction to that decision, I outlined the matter on the merits in the following terms: The Grievor, R.J., a Personal Support Worker enjoyed almost 30 years service with the employer. That position involved regular interaction with workers in the facility most of whom had some form of handicap. The Grievor was terminated for allegedly having engaged in an inappropriate, sexual incident with a female person/worker on or about April 18, 2017. The Employer, Community Living Mississauga amongst other services, provides disabled/handicapped persons with employment and work opportunities within their facilities. The worker, "A', had a form of autism which limited, amongst other things, her communication skills. In the circumstances, there was no dispute between the parties that she would not have made an appropriate witness in the matter. Accordingly, the Employer's case on the merits was presented largely through a witness to the incident itself and others to whom he reported and others who investigated. As noted above, the Employer terminated the Grievor, Robert Jones, for having engaged in inappropriate sexual contact with a female worker (most often referred to as partners or clients) in the Employer's sheltered work environment. The Employer's decision rested squarely on its investigation of a version of the event provided by Paul Grajauskas, a support worker like the -2- Grievor, who was a witness to the alleged incident between the Grievor and A. Although the Grievor was not A's direct supervisor in the shop, he did interact with her during his regular transportation duties when, at the end of the day, he would oversee client loading in correct cars, taxis and buses. It was the Union's position advanced by Ms. Archana Mathew that the Employer in concluding that Paul's version was reliable failed in its investigation to consider the context and environment surrounding the alleged incident and in doing so wrongly failed to accept the Grievor's explanation of the event. In the circumstance, it was her position that the termination was without just cause and that the Grievor should be reinstated and made whole or alternatively awarded damages for his wrongful termination and resulting pain and suffering. THE EVENT THE EVIDENCE AND ANALYSIS Since the case essentially turns upon the event itself between the Grievor and the working partner A, the description of it provided by Paul, the support worker who observed it is critical. Paul's consistent version of events was first given in his initial concerned report to the supervisor Brian Bando. He confirmed the same version later when he was interviewed by Maria Delfino, the Employer's Human Resources Director, and finally repeated and clarified it further during his testimony. According to Paul, it was approximately 3 p.m. on April 18th when he made his observations. He was returning to the support worker office to perform some task on the computer there. When he entered the door he observed the Grievor seated in his swivel chair, feet planted firmly on the floor and turned sideways from his desk. Standing before him was the partner A while the Grievor, Robert .cones, held a chocolate bar before her in his right hand while his left hand was up between her legs. As he entered the office he was initially about 3 or 4 feet from the two of them so that his vision was clear_ While he continued past the two of them it appeared to, him that the Grievor had sensed his presence and withdrew his hand from between A's legs. As he walked by the two of them he heard Robert mumble something to A who then left the office. -3 - He did not hear the comment nor did he observe Robert handing the chocolate to A before she left. Shortly after reporting what he had seen to Brian Bando, he was questioned again by the supervisor who had since then reviewed Paul's version of the event with the Grievor. Brian's testimony and his notes from his conversation with the Grievor that day confirm Robert's explanation that there had been no "sexual intent". Rather, he explained that it was "not the way you are thinking". Following that, Brian asked him "regardless of intent how was it someone witnessed you with your hand between A's legs". To which the Grievor further explained that he "swung his chair around and he inadvertently brushed her leg". There was, according to Brian, a continued discussion with the Grievor during which he advised him that he would be obliged to report the incident to his own supervisor. To this the Grievor repeated that there was "no sexual intent" and added 1 don't do that". It is important to note that Brian was not crossed -examined on certain aspects of his testimony in particular on the specifics of the Grievor's explanation of having inadvertently brushed A's leg. Furthermore, there was no detailed cross of Brian on the entire paragraph of his testimony and notes during which he reiterated to the Grievor what he understood to be his explanation as well as his advice that he would need to report the incident to his own supervisor. Although Brian's testimony was not challenged with respect to the Grievor's explanation of how his hand had accidentally brushed A's leg, the Grievor denied in his testimony that he had provided Brian with that version to explain what Paul believed he had seen. Furthermore, he denied having confirmed his version as an accidental brushing of her leg before Brian went to check it with Paul. In effect, then, the Grievor gave Brian no explanation whatsoever when asked to comment about what Paul had seen except to say there was "no sexual intent" and " not the way you are thinking" .( I will have more to say on this later, however, it is more than doubtful that -4 - Robert would not have tried to provide some explanation to Brian as to why his hand appeared to be between A's legs_ His denial, in the circumstances, raised serious concerns about his credibility with respect to the central issue.) In any event, Brian's testimony and notes confirm that he then spoke with Paul to clarify what he had witnessed. Paul was adamant that there was no mistaking what he had seen. According to Brian and as confirmed by Paul both in his interview later by the Employer's Human Rights Director, Maria Delfino, as well as in his testimony, Robert was sitting in his chair holding out a chocolate in his right hand and his left clearly between A's legs. The chair was not moving and there was no mistaking that what he had seen was not accidental nor an inadvertent brushing of A's leg or pelvis. During his testimony as well as in cross Paul agreed that A was wearing pants as opposed to a dress. Furthermore, he agreed that Robert's hand was stationary between A's legs when he observed it. In addition to those observations, when pressed in cross-examination Paul testified that the Grievor's hand was not closed as in a fist; his hand was open with his palm facing upwards. Paul agreed that the various notes might not have reflected that the Grievor's hand was palm upwards but he was certain that he had been asked and confirmed that the Grievor's hand was not closed as in a fist against the front of her body but rather open and high up squarely between her legs. In addition to evidence concerning the incident itself, during the investigation by Maria Delfino as well as in their testimony both Paul and Brian referred to the Grievor's relationship with some workers as "huggy" and that he had a practice of handing out candies on a fairly regular basis. Brian also confirmed that Brenda, who was the usual direct supervisor of the Grievor and Paul, had in the recent past discouraged the Grievor from engaging in hugging behaviour with the workers. Neither of those witnesses was cross-examined with respect to the nature of those -5 - hugs. Furthermore, two union witnesses, Tony and Daniel, both confirmed that they had observed the Grievor hugging workers in the past. Indeed, both testified that they too will hug partners on occasion, sometimes as a way of'greeting them and at other times as a way of congratulating them on their work on appropriate occasions. Furthermore, Daniel confirmed that he had hugged partners on occasion with one arm and on other occasions with two depending on the circumstances. Furthermore he had seen the Grievor do the same. In his testimony, the Grievor did not disagree that Brenda had recently spoken with him suggesting that he ought not to initiate hugs with the partners after which, he testified, that he no longer initiated hugs with partners although he did not suggest that he stopped the practice entirely. However, contrary to the evidence of all other witnesses, the Grievor testified that when hugging a partner he only did so with one arm and never fully facing them_ Further, he would do so while standing beside them with an arm around behind them in order to redirect them from one area to another_ On occasion he would do the same if a partner was upset but then again only by way of a side arm hug to guide them away from the situation. it was one way of diffusing the situation. The important aspect of his testimony here was that he did not hug partners face- on whereas the other witnesses had all testified that he often did so. ( This contradiction, in my view, had a bearing on the Grievor's credibility although "hugging" per se had no bearing on the merits. ) This brings me to the Grievor's description of the incident on April 28t' to Maria Delfino during her investigation. On this occasion Robert had a more elaborate explanation for what his co-worker Paul had allegedly misunderstood and/or misconstrued. Rather than having his hand fixed between A's legs, that is, in her crotch as Paul had explained to Brian Bando and which he confirmed during the Employer's investigation as well as in his testimony, and rather than accidentally having brushed A's leg as he had originally explained to Brian Bando, on this occasion, the Grievor's explanation to Maria Delfino which he confirmed with considerable background in his testimony went roughly as follows: By way of background, one of the Grievor's responsibilities was to assist the partners with their transportation at the end of the day. He would monitor them through the corridor which led to the doorway where they would exit to their respective taxis, family cars or perhaps vans or buses. 2. It was the Grievor's practice to leave a bowl of candies on a table just inside the corridor leading from the shop area to the employee entrance to the building. Partners, as a personal reward from the Grievor for their work that day were each allowed to take two candies from the bowl. 3. The Grievor was at his desk in the support workers' office at or about 3 p.m. on April 18t''. 4. He was seated in his swivel chair bent over the large lower drawer of the two drawers situate on the right side of his desk. 5. On the day in issue before he began his transportation duties, the Grievor was preparing to load the candy bowl with some candies kept in that drawer. 8. The bag of candies had spilled over and he was occupied replacing the candies in that bag when A approached him from behind. He did not know she had come in and was there behind him. 1. While he was bent over the drawer, apparently "A" entered the office and standing close behind his chair asked for "candies". 8. The Grievor immediately straightened which resulted in his head- butting "A". She backed off momentarily at which time the Grievor handed her two candies. g. However "A" then spotted a chocolate bar in that same drawer and moved forward again crowding the Grievor while she asked for the chocolate. -7- 10. The Grievor placed a hand on her torso holding her back while he turned again towards the drawer to grab the chocolate bar. 11. As he turned back towards A holding the chocolate bar, his hand, which he had now closed into a fist and was still holding back the client, inadvertently lowered from her torso to her pubic area as he turned back to hand her the chocolate. The Grievor explained that he had to close his hand to hold A at arm's length since his hand was arthritic and painful when pressed open- 12. pen. 12. It was at this moment that Paul entered the doorway and observed the alleged incident. 13. The Grievor removed his closed hand from before "A's" pubic area when he noticed she was looking down to where it held her. 14. Paul carried on to the computer and was there a few moments before he left the office. 15. There were no words exchanged between the Grievor and Paul during the incident itself or thereafter. By way of background, the Grievor and others testified that the east/west corridor leading past the support worker office where the incident occurred as opposed to the north/south corridor from the shop leading to the employee entrance, can be busy near the end of the day. The two washrooms directly adjacent to and accessible from the shop are single use only. Consequently, clients and others may use the east/west corridor to access alternative washrooms at the west end of the corridor nearer the main entrance. Be that as it may, Paul testified that the corridor was empty when he used it to access the doorway to the support worker office at the time of the incident. Although the Grievor speculated that Paul and Brian Bando might like to see him gone from the facility since he believed his philosophy in dealing with the clients was at odds with their views, there was no evidentiary support for that conjecture on his part. There was no evidence of hostility or enmity between him and Paul and/or Brian. This was so notwithstanding that Paul felt the Grievor's work ethic was lacking and his familiarity too touchy feely. Indeed, he testified that he was shocked, surprised and upset when he came upon the incident in question between the Grievor and the client "A". In hindsight, he recalled an incident between the two which had occurred a couple of weeks earlier but to which he had attributed no concern at the time. On that occasion he had entered the support worker office and observed the Grievor and "A" exiting the adjacent locker area at a time when no other people were about. He had thought it peculiar at the time but made nothing of it. However, in hindsight, believed it might have been more than peculiar. By way of explanation, the Grievor testified that he kept his larger supply of candies in the locker and that A had simply followed him in while he was retrieving some to use in the near future. This Robert testified was consistent with his view that since February of that year, "A' had become more aggressive in crowding his personal space and had followed him into the lockers in her quest for candy. According to the Grievor that aggressive behaviour was equally demonstrated when A pressed him for candy in the office. This brings me to a consideration of the testimony of Maria Delfino. She testified that during her investigation and in particular her interview of Robert on April 28t' she had him demonstrate the manner in which he was holding the client "A" back and how his arm ended up lowering from her torso to her pelvic area_ She was concerned that the demonstration failed to indicate how the drop of the arm might have occurred. Rather, it ended up higher than the Grievor had represented to her in his interview. Additionally, having concluded the interview with the Grievor, Maria again contacted Brian Bando to confirm with him some of the Grievor's description of their conversation of April 18th. Following that chat with Brian, Maria sought to have Robert come in again since she had several other questions to ask him. Since he had been under suspension following the April 18th meeting she left messages at his home on May 1st and 211 requesting that he come in. A second meeting with Robert was finally arranged for May 3`d at about 4:34 p -m- e Ma 3rd meeting Maria indicated that she had several other questions to review with Robert. At the Y he would not be He surprised her by answering that, on the advice of his criminal lawyer, ondin to any further questions since he had been charged with assault or rather sexual resp 9 assault in the meantime. However, he said he had planned to retire within the next four months and in the circumstances had decided to resign and provide two weeks' notice for which he would be sending his resignation shortly. He handed in his keys and offered to arrange a luncheon pizza party with partners and staff at the conclusion of the notice period. er to Robert purporting to accept his resignation, however, on On May 51h the Employer sent a lett May gth Robert called to advise that, again on the advice of his lawyer, he would not be retiring as he had previously suggested. In the circumstances, Maria addressed another letter to Robert on May 9th acknowledging that Robert had since May 5' purported to retract his resignation. However, she advised that, as a result of the Employer's investigation, the allegation with respect to "A" had been substantiated, and that, amongst other things, the incident was in contravention of the Employer's Abuse and Neglect Policy. His employment was, therefore, terminated. THE DISCUSSION AND DECISION There was no disagreement between Mr. Dirk Van de Kamer for the Employer and Ms. Archana Mathew for the Union that, if indeed, the Grievor had sexually assaulted the client "A", termination would be the only proper disposition of the matter. However, whereas Mr. Van de Kamer focused on the credibility of Paul, the eyewitness to the incident, as well as the lack of candour by the -10- Grievor, Ms. Mathew argued that the event itself ought not to be determined on the basis of credibility only. Rather, the incident observed by Paul represented but one frame in the scene between the Grievor and "A". Accordingly, the truth of what occurred should be judged in the context of the surrounding circumstances. Ms. Mathew did not dispute that the eyewitness believed what he had said he had observed on that occasion nor did she contend that he had any significant motive to lie about his observation. However, it was her central contention that Paul was mistaken with respect to that observation and had jumped to a conclusion based upon one frame in the scene in the office. Additionally, given Paul's unshakable opinion of what he saw, the Employer failed to consider the totality of the circumstances which, including the Grievor's explanation of the event, demonstrated the likelihood that Paul was mistaken in his interpretation of the event. I have considered the evidence before me in its totality as well as the excellent submissions of counsel and, for the reasons which follow have concluded that the Grievor, Robert Jones, did indeed engage in an inappropriate sexual touching of the partner/client "A" on April 18, 2017. In particular, I was persuaded in this view due to concerns with Robert's credibility not only with respect to the event itself but with his seeming to attempt to distance himself from any activity in the workplace such as hugging which, although otherwise innocent, might have appeared questionable. The following should clarify my findings: 1. It was Ms. Mathew's position and submission that the evidence indicated that numerous extenuating circumstances made it unlikely that the Grievor had engaged in the alleged misconduct as described by Paul: (a) The corridor running past the support worker office was often busy at the time of the alleged incident. (b) The door to the office was open. -11- (c) Paul regularly attended in the office at or about the time of the incident. (d) The Grievor regularly prepared for his transportation at or about that time which for him included bringing candies out from the office to the bowl. (e) The client or partner "A" had become quite aggressive in crowding the Grievor's space since February of that year as the Grievor had explained to his co-worker Tony in the recent past. (f) Although the Grievor had been huggy with the clients, other support workers such as Daniel would hug partners on occasion_ (g) .While the Grievor's direct supervisor, Brenda, had spoken with him recently about hugging the clients, the Grievor had altered his conduct by no longer initiating or instigating those hugs. (h) There had been no similar incident in his record of inappropriate sexual conduct with a client_ 2. The following comments are relevant to those extenuating circumstances: (a) The Grievor's transportation duties typically take place after 3:00 p.m.. However, they had not yet begun in earnest on April 18th since the Grievor was himself still in the office gathering candies preparatory to the dispersion of clients from the shop to the transportation corridor and exit. Accordingly, there was, as yet, no significant traffic in the other corridor running past the support worker office and door towards the front washrooms. (b) There was no evidence that the door to that office was kept closed in the ordinary course. Consequently, it would have been suspicious if it had been closed when Paul returned there to review his e-mails at the computer. (c) Paul did customarily return to the office some time after 3:00 p -m. but the timing was erratic. (d) The Grievor usually prepared for his transportation duties around 3:00 P.M. which on occasion included filling the candy bowl from his supplies. (e) The Grievor was not the direct support worker for the client "A". Rather, A worked in another area of the shop overseen by a different support worker. In the circumstances, since the Grievor appeared to be the primary source of candy in the facility, it is not surprising that "A" would have been drawn to him especially if her aggression was rewarded as it seems to have been on a recurring basis. As the Grievor himself testified, she had "bonded" with him. (f) Both Paul and the Grievor testified that, if clients came into the office, for instance at lunch time when there was another or other support workers in the office, Robert would send them away immediately, including A. On this occasion, however, when there were no other support workers in the office, the Grievor failed to dismiss "A" from the office and indeed on his own testimony provided her with candy and then a chocolate bar which would have reinforced her aggressive tendencies towards him_ Indeed, that was consistent with his testimony that "A" had followed him to his locker a week or two earlier while he was retrieving candies from storage. Therefore, rather than discouraging A's conduct in crowding his personal space since February of that year, the Grievor had encouraged it_ -13- (g) Finally, while other support workers also engaged in hugging clients from time to time, the Grievor himself felt it appropriate to be more personal with the clients and was known to engage with them in that way often enough to invite comment from his direct supervisor, Brenda. However, what is more troubling than his having engaged in hugging clients on a regular basis was his testimony regarding that practice. It was more than surprising when we heard the Grievor's unsupported testimony that, when he hugged clients, it was only with one arm and never face on. Rather, he used this technique most often to steer them away from unwanted situations and/or back to their work station. He denied hugging them face on in greeting or otherwise as a reward. That testimony was more than surprising and was in direct conflict or contradiction with the testimony of his co-worker Daniel and others. It appears from this that the Grievor was attempting in his testimony to distance himself from any conduct, which in hindsight, might have appeared inappropriate with clients. (h) That the Grievor might not have been observed by any co-worker or staff in the past engaging in inappropriate sexual conduct with clients is not in itself proof that it did not occur on the occasion in question. (i) Finally, although the choice of time and place for an assault might seem surprising, that alone does not necessarily detract from direct evidence of its having taken place. 3_ In addition to those comments regarding the argument that extenuating circumstances made it unlikely the Grievor would have engaged in the alleged misconduct are the following considerations , most of which have a more direct bearing on the issue: (a) Paul testified that he was stunned and surprised to walk in on the scene where the Grievor had his hand firmly between the legs of the client "A°. -14- (b) That was Paul's clear testimony and was the scenario he described to Brian Banda immediately after his observation. When pressed in cross-examination he clarified that he had observed the Grievor's hand not his fist clearly between "A's" legs and not simply in front of or pressed against her pelvic or pubic area. On reflection at the time, he testified that he was so stunned by his observation that he was reminded of the consequences of the failure of others to report their observations of sexual misconduct involving the Penn State coach in the United States which scandal ultimately resulted in a media frenzy. He felt obliged to report the Grievor's hand between "A's" legs while he held out a chocolate bar in his other hand_ There was no evidence that Paul harboured any significant dislike of Robert such that he would have been motivated to misrepresent what he had seen. I accept his testimony as credible on that issue and that he reported honestly what he believed to have occurred. (c) He immediately reported what he had seen to the available supervisor, Brian Bando. Brian confirmed that report in his testimony and it is reflected in his notes made at the time. There was no evidence that Brian had any reason to misconstrue what Paul had told him nor was there any evidence of collusion between the two. (d) Immediately upon receiving the report Brian addressed the Grievor. According to Brian's testimony and his notes he explained to Robert what Paul had reported. According to Brian, when the Grievor responded that there was no sexual intent he then asked him "regardless of intent how was it that someone witnessed you with your hand between A's legs". To this Brian testified and his notes confirm the Grievor "stated that he swung his chair around and he inadvertently brushed her leg". It was that explanation which Brian's notes and his testimony confirmed that he brought to Paul to see if perhaps he was mistaken as to what he had seen and (e) (f) stem that it might have been accidental. As we know Paul adamantly confirmed what he had seen and that it was no accident. They were both in agreement in confirming that the Grievor had provided an explanation for what Paul said he had seen. It would be more than surprising had he not done so. I accept as true that Brian was correct in his testimony as to the Grievor's explanation to him at that time. More importantly, when the Grievor gave his explanation to Maria ten days later not only did he disavow the explanation he had given to Brian earlier, the new version was a far cry from what he had previously described. Accidentally brushing A's leg rather than deliberately holding his hand or fist against her body were simply inconsistent versions. Perhaps the Grievor completely denied having given the earlier version since he had since then recognized the inconsistency_ Whatever the case, that denial in itself weighed heavily in my concern with Robert's lack of candour. As to the new version, it is perhaps one of the few ways in which one might rationalize a hand " accidentally" in someone else's crotch. The Grievor had ten days to come up with that explanation. In the circumstances, I do not accept that explanation as true. Furthermore, by subsequently adding to the scenario that his hand was initially open when he held her back but closed and lowered to her pubic area when he turned towards her again seems another attempt to distance himself from the original explanation. He had not mentioned a closed hand at that time. As Maria Delfino was concerned, the Grievor's explanation. had changed dramatically from what he had told Brian, Furthermore, the lowering of the left arm from A's upper torso to her pubic area while the Grievor turned towards her in his chair did not occur during the demonstration. Rather, Maria remarked that the left -16 - hand, even if a fist, did not drop to the extent alleged by the Grievor but remained relatively high after he had turned in his chair. Additionally, the Grievor's explanation that he closed his arthritic hand while holding "A" in abeyance as she was pressing forward against that very hand would have been a more than difficult maneuver. To clarify, all of this calls into question the Grievor's credibility especially when juxtaposed against the very clear and consistent evidence provided by Paul and Brian Bando. To summarize some of my concerns with the Grievor's credibility - i. He denied having provided Brian with his original explanation of the incident. 2. His resulting testimony that he gave Brian no explanation at that time is more than doubtful; rather, I am satisfied that it was a deliberate misrepresentation. 3_ His later explanation contradicted his earlier version. It is doubtful that his hand/fist would have come to rest in A's crotch area in the manner he described. It is doubtful that he was able to close his arthritic hand during the maneuver if at all. 4. Generally his denial with respect to the manner in which he hugged clients was contrary to all other evidence in that respect_ As indicated, having considered the totality of the evidence including the circumstances of the event, the credibility of the eyewitness to the incident, my findings with respect to the Grievor's lack of credibility, as well as all the extenuating circumstances I am satisfied that, indeed, the Grievor did engage in the impugned sexual conduct against the client "A" on April 18th, 2017. 1 have taken into the consideration the submissions of counsel, including the vulnerability of clients in this facility, their safety, the denial of responsibility by the Grievor himself and counsel's -17 - acknowledgment that clear cogent proof of the incident should lead to no other conclusion than the appropriateness of termination. While it is unfortunate that an employee with what was apparently many years of loyal service to the Employer should find himself terminated in such abhorrent circumstances, I am satisfied that the event was proven. There is here no alternative but to uphold his dismissal. Therefore, the termination is upheld and the grievance is dismissed. DATED at Toronto this 25th day of March 2419. Joseph D. Carrier Sole Arbitrator