HomeMy WebLinkAboutCollins 98-04-07
In the matter of an arbitration
between
Chatham and District Association for Community Living
(hereinafter referred to as the Employer)
and
Ontario Pulbic Service Employees Union, Local 148
(hereinafter referred to as the Union)
Grievance of Paul Collins
Sole Arbitrator:
Gregory J. Brandt
Appearances:
For the Employer: Paula M. Rusak, Counsel
L. Cowell, Executive Director
L. Mallett, Director, Vocational Services
M. Smith, Director, Residential Services
G. Wood, Supervisor
For the Union: Mitch Bevan, Grievance Officer
Alan Butler, Local Union President
Paul Collins, Grievor
Hearing:
Chatham, Ontario
September 9, 10, 1997
January 22, 28, 29, 1998
February 5, 1998.
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AWARD
1. Introduction
The employer is an agency that provides vocational residential supports and
services to persons with a developmental disability who reside in Kent County. Included
among the vocational services are pre~vocational programs, adult development programs
and sheltered employment programs. Under these programs supported individuals
(hereinafter to be referred to as "clients") of the agency receive instruction and support in
various life skills, which instruction is provided at various facilities owned and operated
by the agency. Support services are also provided through the residential services
program under which clients either live with other clients in a residential environment
staffed by employees of the agency or through supports provided to clients still living
with their families at home, Currently, the agency serves the needs of approximately 400
clients 85% of whom are adults over 21 years of age. All of the clients suffer from some
form of mental or developmental disability which impairs their ability to cope with day to
day living skills. Some, in addition, may have a secondary physical disability. Support
services are provided by full and part time employees, qualified in their profession, and
classified either as Vocational Support Worker II or Vocational Support Worker I.
On May 23, 1997 the grievor was suspended pending the outcome of an
investigation into an allegation of sexual abuse ofa client. On June 13th he was charged
with an offence under the Criminal Code and, following further investigation by the
agency, his employment was terminated on June 30, 1997. The grievor denies the
allegation in its entirety and claims that both his suspension and his discharge are without
cause. By way of relief he seeks reinstatement with full retroactivity of pay benefits and
credits, costs and punitive damages for the harm caused to his reputation.
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At the time of his discharge the grievor was employed as a Vocational Support
Worker II in the Life Skills program. In that regard he was one of 5 employees classified
as Vocational Support Worker II working at 101 Stewart Street. The grievorJs particular
responsibility at 101 Stewart Street was to supervise and instruct 9 clients in various
activities connected with the kitchen/cafeteria which prepares and serves meals and break
nutrition for other clients and employees who work in other parts of the program at that
location. These activities included the preparation, dishing up and selling of various food
items at lunch and breaks, washing dishesJ cleaning floors and tables. The grievor was
also responsible for ensuring that there was an adequate inventory of kitchen supplies as
well as for operating the cash register during meal times and breaks. The programs
carried on at 10 1 Stewart Street are under the overall supervision of Jan Sparks who
works on the premises. HoweverJ she does not work directly with the grievor in the
kitchen/cafeteria.
One of the clients for whom he was responsible was a 33 year old man who (for
reasons of privacy and confidentiality) will be referred to henceforth as TM. He was a
client who received both pre~vocational support at 101 Stewart Street as well as
residential support at 469/471 Queen Street where he lived with 8 other clients under the
care and supervision of, inter aliaJ Cheryl Mott and Russel Bailey, 2 Residential Support
Workers assigned to that location, and Gloria Woods, their supervisor.
In summary, it is alleged that, on May 21, 1997, the grievor took TM to the
basement of the premises at 101 Stewart Street where he reached into his pants and
touched his penis, asked TM to touch him (which TM did on the outside of his [the
grievor'sJ pants), and told TM to turn around after which he [the grievor} fondled TM's
buttocks on the outside of his pants. Although no report of the incident was made that
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day, on the following day (May 22) TM reported it initially to Ms. Mott and repeated the
allegation a short time later at a meeting in the Queen Street residence attended by Ms.
Mott, rvrr. Bailey and Ms. Wood. Both Ms. Mott and Mr. Bailey made notes of those two
meetings. Ms. Wood then contacted Ms. Melodie Smith, the Director of Residential
Services to apprise her of the incident and Ms. Smith, in turn, contacted Ms. L. Cowell
(the Executive Director) at approximately 8.15 pm that evening. Ms. Cowell instructed
Ms. Smith to proceed to the location, find out what had happened, and to report back to
her. At approximately 9.15 p.m. Ms. Smith called back and a decision was made to
contact the Chatham police who attended that evening at the Queen Street premises to
interview TM. In due course the police advised Ms. Smith that there would be a further
investigation and requested that the agency not speak to the grievor until after they had
completed their investigation. Ms. Smith advised Ms. Cowell of these developments at
approximately 11.30 p.m. and Ms. Cowell instructed Ms. Roberts, the Manager of Day
Programs, to call the grievor at 6.30 a.m. the following morning (prior to his 7:45 am.
starting time) to tell him not to report to work.
As instructed Ms. Roberts called the grievor and, in accordance with a "script" that
had been given to her by Ms. Cowell the night before, told him that he was not to report
for work today as "the police are investigating some allegations made against you."
When advised ofthat the grievor replied: "Oh-who?" to which Ms. Robe11s replied that
the agency was advised by the police department not to give any more information to
which the grievor in turn replied: "Oh, OK". When Ms. Roberts reported to Ms. Cowell
that she had made the call she expressed some concern over the grievor's response to her
advising him that there had been allegations made against him, viz, that he had said
"who" rather than "what" - a response which led her to assume that he was aware of what
the allegations were. The grievor, in his evidence, confirmed the substance of this
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conversation, but stated that he knew neither the substance of the allegation nor who had
made it; that he asked "who" rather than "what" because he wanted to know if an
allegation had been made by a client, another staff member or a supervisor. Later that day
Ms. Mallet called the grievor to tell him that he was suspended until further notice. He
asked her if she could tell him anything about the allegation that had been made against
him and she replied that, on the request of the police, she could not.
On the same day Ms. Smith filed a Sexual Occurrence Initial Notification Report
with the Ministry of Community and Social Services as required by law. That report
stated that a client had made an allegation concerning "sexual interaction" with a staff
member who had been suspended until the investigation had been completed. On May
23rd Detective Miflin, the investigating officer, interviewed TM (in the company of Ms.
Smith) at the police station. On Monday, May 26 Ms. Cowell spoke with Detective
Miflin who again advised the agency not to speak to the grievor until the police had
completed their investigation in order not to risk compromising it. At this time Ms.
Cowell expressed her hope that the police investigation could be completed swiftly so
that she could conduct her own internal investigation in to the allegation. On Friday, May
30, Ms, Cowell was advised by Ms. L. Mallett, the Director of Vocational Services, that
Detective Miflin had indicated that he thought the police investigation would be finished
up by the following Tuesday or Wednesday, June 3rd or 4th. Early the following week
Ms. Cowell attempted to ascertain from Detective Miflin as to when his investigation was
to be concluded. However, as he had not responded to her messages by late in the day on
June 4, Ms. Cowell decided to begin her investigation and she interviewed TM at 5 :00 pm
on that day, In fact the police investigation did not end until June 13 when the grievor
was charged with a criminal offence.
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On Friday, June 13, after being advised by Detective Miflin that their investigation
was concluded, Ms. Cowell met with the grievor, in the presence of Ms. Mallett and Mr.
Alan Butler, the local union president. She apologized to him for the length of time that it
had taken before she could speak to him and explained that she had been complying with
the police request and advised that they were investigating a serious allegation made to
them by TM. When asked whether or not he had entered the basement at 101 Stewart
Street at any time on May 21st the grievor responded that, on the advice of his lawyer, he
could not comment ~ as he had now been charged with a criminal offence. He further
indicated that, for similar reasons, he would probably decline to answer all of her
questions concerning the incident. He did, however, deny touching TM on the day in
question and it was suggested by both the grievor and Mr. Butler that Ms. Cowell
interview the other staff working at 101 Stewart Street as the grievor and the union had a
concern about a client making false allegations concerning the conduct ofa staff member.
By letter dated June 16, 1997 Ms. Cowell advised the grievor that, having regard to his
refining to answer key questions in connection with the allegation, she was left in a
position of having to conduct the investigation without the benefit of any information
from him and that she was going to continue her investigation on June 16 and 17 and
hoped that he would reconsider. To that end she scheduled a meeting for Thursday, June
19 at which time they would discuss their findings with him and make their decision
based on whatever information they had in their possession.
On the morning of Monday, June 16 Ms. Cowell interviewed 5 other staff at 101
Stewart Street. None of the people interviewed were able to be of any assistance with
respect to the incident in question and generally confirmed that they had never seen
anything in the grievor's interactions with clients that would give them any concern.
However, some staff did speak of prior incidents in which TM had been found to be
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lieing about various things. Fuller reference to these incidents will be made later in this
award.
Following her June 4th interview with TM Ms. Cowell had reviewed the notes
prepared by Ms. Mott and Mr. Bailey concerning the two occasions on May 22nd when
he had reported the incident. Following her interviews with other Stewart Street staff on
the morning of June 16th, Ms. Cowell~ in the presence ofMs, Wood, again interviewed
TM to, in her words, "see if there were any inconsistencies" in his story. Later that week,
on June 19th she again met with the grievor to afford him another opportunity to respond
to the allegation of sexual misconduct that had been made against him. At the outset the
grievor's union representative, Tom Watson, advised that he could not comment on
anything related to the allegation as he had not heard any of the details of the allegation
and had retained legal counsel to defend him in the criminal charge. Ms. Cowell recited
the essence of the allegation that had been made by TM and, following a period when he
consulted with Mr. Watson in private~ the grievor returned and told Ms. Cowell that he
was "innocentH and the "the allegation is truly false". When asked whether he could offer
any reason why TM would fabricate such a story Mr. Watson again stated that he [the
grievor] could not advise them of anything. As far as Ms. Cowell was concerned that
ended the investigation and the decision was made to terminate the grievor's
employment.
In support of its decision to terminate the grievor's employment the employer
advances two arguments.
First, it is argued that the conduct alleged to have occurred is of such seriousness
as to warrant discharge in and of itself. Secondlv. it is iH'Qued thnt the refusal of the
~ .,.. i-c,,"
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grievor to respond to the efforts by the employer to investigate the allegations that had
been made against him is, in the circumstances of this case, sufficient to warrant his
discharge from employment. The union does not take issue with the argument that the
allegation, ifproven, would justify discharge. It concedes that such conduct is
unacceptable and makes no claim that, in the event that I were to find that the incident
occurred, I should nevertheless exercise my discretion to substitute a different penalty
than that of discharge. However, the union does join issue with the employer in respect
of the issue as to whether the failure to cooperate with the employer in its investigation
warrants discharge in and of itself. In that regard it is the position of the union that, apart
entirely from the grievor's reluctance or refusal to cooperate in that investigation and the
reasons therefor, if he can, at arbitration, offer a credible defence to the allegation that has
been made against him, that should be sufficient to warrant his reinstatement.
There is no factual dispute that the grievor did not, apart from a general denial,
provide the employer with his version of the events alleged to have occurred. It was his
position throughout that, acting on the advice of his legal counsel, it would not be prudent
of him to respond to any questions asked of him. Whether or not failure to cooperate in
an investigation of a serious charge is conduct which justifies discharge and whether or
not acting on the advice of legal counsel constitutes a defence is a matter of law to which
I shall return. However, the question of whether or not the incident, as alleged, occurred
is entirely a matter of fact to be resolved entirely on the basis of the evidence of TM and
the grievor. There is no one else, other than the grievor and TM, who is in a position to
testify as to what did or did not occur on May 21, 1997, and their evidence is in stark and
irreconcilable conflict. Put simply it is the grievor's evidence that, apart from the fact
that he and TM were alone in the basement for a brief period on May 21, 1997 getting
some apples, the rest ofthe allegation against him is a complete fabrication. In that
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regard it is the position of the grievor and the union that TM fabricated the story in
retaliation for two incidents earlier in the day on which the alleged incident was reported
wherein the grievor threatened to "write up" TM for certain misbehaviour of his that day _
which "write up~' could have the effect of causing TM to lose his job at 101 Stewart
Street.
Thus, this issue can only be determined on the basis of findings as to the credibility
ofTM and the grievor. A widely accepted view of how credibility should be assessed by
an adjudicator is that set out in Faryna v Chorny [1952] 2 DLR 354 (BCCA) where
Q'Halloran 1. states as follows:
The credibility of interested witnesses particularly in cases of conflict of
evidence, cannot be guaged solely by the test of whether the personal
demean our 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 of a witness in such a case
must be its harmony with the preponderance of the probabilities which
a practical and informed person would readily recognize as reasonable
in that place and in these conditions. (Emphasis added).
In this case the application of this standard may give rise to special problems, in that the
only witness to the events is a developmentally delayed adult whose mental capacity to
recall events and relate them in an orderly fashion may be compromised such that his
account may not meet the acceptable standard of internal consistency and harmony with
reality. In my view it would be entirely inappropriate to take considerations of this
nature into account in assessing the credibility ofTM. Nor, it should be noted, did
counsel for the employer take that position. The grievor has been accused of serious
misconduct and has lost his job as a result of this accusation. He is entitled to put the
employer to the proof of the accusation by clear and cogent evidence and is entitled,
through his union, to challenge the credibility orrM according to the same criteria that
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would apply to any other witness; and, if the employer fails to establish the incident
alleged, the grievor is entitled to a finding of fact to that effect.
2. The alleged incident
I turn to an outline of the evidence led with respect to the alleged incident.
However, before doing detailing that evidence, it is necessary at the outset to deal with an
issue as to when it allegedly occurred. This is important since, as indicated, it is the
position ofthe union and the grievor that TM did not rep0l1 the alleged incident on the
day of its occurrence but instead, reported it the next day after he had twice been
threatened with "writing up" for his conduct that day. Clearly, that defence would not be
available to the union ifTM reported the alleged incident on the same day that it
occurred.
There is no question that the first report ofthe incident to anyone was on
Thursday, May 22, 1997. It was the evidence of Cheryl Mott that it was on that day that
TM asked her to go for a walk with him (at which time he related the incident). Although
Ms. Mott's written report of that conversation is undated, the report of the meeting
between TM and Ms. Mott, Mr. Bailey and Ms. Wood later that day is signed by all three
and dated May 22, 1997. The question then is whether the alleged incident occurred on
Wednesday, May 21 or Thursday May 22.
Ms. Mott herself was unable to remember whether or not TM told her when it
happened and could not remember whether she had asked him. However, when asked
whether she thought it happened earlier that day she responded that she did not think it
did. When TM was asked by Ms. Cowell, in the June 4 interview, when he had spoken
with Ms. IvIott he stated that it was the "same day" implying that it was the day of the
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alleged incident. Later in that same interview he told of how he "went home yelling at
Russ -swore at him~' because of Hproblems at workH. However, Ms. Cowell did not
pursue that matter with him at that time. In the June 16 interview with TM the question
came up again, albeit indirectly. When asked what he did after he put the apples away,
TM stated that he "came home angry-told Russ to Fuck off and then talked to Cheryl"
again implying that his reporting of the incident to Ms. Mott was on the day of its
occurrence.
However, it is clear that Ms. Cowell was of the view that the incident occurred the
day before it was reported for, in her interview of TN I, she asked him why he told Cheryl
Mott "the next day". She knew from what she had been told by Ms. Smith, that TM had
indicated that it had happened the day before he talked to Cheryl Mott. Indeed, it has
been the position of the employer throughout that the alleged incident occurred on May
21. At both the June 13 and June 19 interviews with the grievor, Ms. Collins began the
interview by asking him to comment on an allegation concerning an incident occurring on
May 21st.
Finally, reference may be made to the evidence ofTM at the arbitration hearing.
In his evidence in chief he did not identify specifically whether the incident occurred on
May 21 or May 22 but did say that he told Cheryl Mott about it "when I got home from
work" - an answer which, like those given in his interviews with Ms. Cowell, left an
implication that the incident and the reporting occurred on the same day. Under cross
examination TIvI, when asked directly what day the incident occurred, replied that it was
on Wednesday (viz, May 21); that he did not tell anyone about it that day; that he went to
work on Thursday (May 22) and told no one about it at work; that the first person he told
was Cheryl Mott on the Thursday night. That is consistent with the notes of the Mav 22
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meeting between TM and Ms. Mott, Mr. Bailey and Ms. Wood which indicate that, in
response to a question from Ms. Wood as to when the incident happened, TM replied that
it was on Wednesday.
It is my conclusion, based on the evidence, that the alleged incident occurred on
Wednesday May 21, 1997.
I turn then to the evidence of what is alleged by TM to have occurred on that day.
TM had occasion to describe what occurred on 7 separate occasions; to Cheryl Mott (May
22), to Cheryl Mott, Russel Bailey, and Gloria Wood (May 22); to a police officer who
interviewed him at Queen Street (May 22); to Detective Miflin (May 23); to Ms. Cowell
on June 4 and June 16, and at the arbitration hearing on February 29, 1998. Although
nothing is known of what he said to the police investigators notice can be taken of the fact
that following their interview of him charges were laid. There is, however, evidence of
what he said on the 5 other occasions and it is to that evidence that I now turn.
Ms. Mott testified that TM approached her on May 22 and asked her if they could
go for a walk; that when she asked him to wait a few minutes, he persisted in his request,
something which she found to be unusual in his behaviour. She stated that he appeared to
be "antsy" and "unsettled" and "adamant about going for a walk." At the beginning of
their conversation he said that he did not want to go to work anymore, something which
she found to be surprising as he "absolutely loved his job and took pride in it." When
asked why he did not want to go to work he stated that Paul (i.e. the grievor) was "getting
in his space." When asked what he meant by that he related the incident in question. As
to the substance of that incident, the notes written by Ms. Mott on May 22 right after she
returned from her walk with 'I'M, record as follows:
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Paul asked TM to go to "basememn to get something and Paul asked TNt to
undo his zipper. Paul put his hand into zippered area (demonstrated by
using physical gestures, hand into zippered area) and touch TM's penis. He
then asked TM to turn around and fondled TM's "butt". He then asked TIv1
to touch his penis but TM did not comply. When asked why ..TM stated he
like womans. TM said he was told not to tell by Paul. S.W. (Social
Worker) asked what he thought would happen ifhe told. TM stated that he
would lose his job in the kitchen and he really liked it there. S.W. asked
TM how many times this has happened. TM stated first this week one time.
S.W. asked TM how he felt. He stated that he hurt (using physical gestures)
hand up and down chest area.
In her evidence Ms. Mott noted that when he asked TM whether he had touched
Paul he "went into a shell", She was unable to recall whether she had logged this
incident in a log book that is kept at the residence but suggested that, given the nature of
the allegation and the need for confidentiality, it may not have been logged. No log entry
concerning this walk and conversation was tendered in evidence. After returning from
the walk Ms. Mott related the conversation to Mr. Bailey who called Ms. Wood, the
program supervisor, who arrived at the residence approximately half an hour later.
The notes of that meeting, prepared by Mr. Bailey, and signed by all three staff
members, state that the incident occurred "right after lunch before I came home"; that he
was in the kitchen and Paul said to "come and get apples with two empty bags~'; that he
described the route he took to the basement "through the janitor's room" through "two
doors and down five stairs" where they found another worker (AB) sweeping the floor in
the basement. He told of how the grievor asked AB to leave and, of how, after he had
finished filling the empty bags with apples, the grievor "put his hand down his pants and
touched his penis". He said he (TM) had a small erection but "did it only once'. At this
point he was asked to "role play" (using Mr. Bailey as the grievor) to indicate what
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happened. The notes state that ~~TM put [Bailey's] left hand down pants - right hand TM
stated used to unzip pants and placed on penis. TM said his penis was sticking out of
pants." According to the notes the grievor asked TM to turn around and that Paul
"rubbed his buttocks" - an act which was also demonstrated~ and that he [TM] zipped up
his zipper. At this point Ms. Wood asked TM if the grievor had asked him to touch him
to which TM replied that he had and further demonstrated what he did by a physical
gesture of grabbing his crotch with his hand. The notes indicate that "afterwards" the
grievor, while they were still in the basement, told TM "don't tell anybody, get fired."
TM then reported that the grievor "left first" and he came up "afterwards" with the
bags of apples~ that Jaelyne (a social worker at Stewart Street) saw him [TM] come out of
the basement and told him to go back to the kitchen~ and that the grievor "went to the
washroom in the TV Room by the kitchen."
Ms. Wood then asked him why he did not go to Jan Sparks (the Stewart Street
supervisor) and he replied that he was "a little big scared". When further asked by Ms.
Mott and Ms. Bailey why he didn't say anything he repeated that "Paul said don't say
anything, just between me and you." Finally, he repeated that he was "hurting in my
chest" because of what happened.
Ms. Mott was the only witness to this meeting and role play to testify. Apparently,
Mr. Bailey is no longer employed by the employer. It was her evidence that, save and
except for the matter of whether or not he had touched the grievor, the account that he
gave to her on the walk was similar to that demonstrated in the role play. She admitted
however, that unlike his manner on the walk when he "went into a shell" and "got off the
subject" of whether he had touched the grievor, he exhibited no hesitancy during the role
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play in demonstrating how it was that he had touched the grievor. In her opinion his body
language was "confident and uprighf' maintaining "eye contact" with everyone. As for
how TM demonstrated the incident in the role playing she stated that he took NIr. Bailey's
hand and put it "in the belt area of Bailey's pants but did not unzip his pants and did not
touch Mr. Bailey's penis.
Ms. Mott was cross examined with respect to this inconsistency in TM's report,
viz, that after denying to Ms. Mott that he had touched the grievor, he readily admitted to
touching him during the role play. She stated that she was aware of the inconsistency at
the time but did not point it out to Ms. Wood (who was questioning TM). Nor was she
sure whether she pointed it out to Mr. Bailey. When asked for her opinion as to why he
had not told her about touching the grievor, she stated that she felt that perhaps while they
were on the walk he felt "uncomfortable with telling me that"; that he was "ashamed of
this kind of thing"; and that this is why he "went into a shell". However, she confirmed
that there was nothing in his behaviour at the time of their walk that led her to conclude
that he had gone into a shell; that it was only after the inconsistency in his story surfaced
that she, on reflection, noticed the difference between his manner at that time and his
manner during the role play. She admitted further that no one ever asked TM why he
had earlier told Ms. Mott that he had not touched the grievor and, specifically, no one
asked him if he was ashamed to admit it. Nor was Ms. Mott able to explain how TM
would have been ashamed to tell her while on their walk and yet willing to demonstrate
such touching by "confident gestures" to three other people (one of whom was a man)
approximately half an hour later.
TNl was next interviewed by Ms. Cowell on June 4. He continued that the grievor
told him to get two bags of apples downstairs; that he ilnd the gricvor went downstairs
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where they saw AB washing the floor; and that the grievor told AB to leave after which
the incident occurred. Ms. Cowell's notes taken at the time state:
TM Paul put his hands down my pants
he was touching my penis
my zipper undone
LC paraphrased what TM has said to ensure she was understanding
TM clarified Paul undid his (TM's) zipper
then what happened?
TM I touched his too
LC did he ask you to?
TM he asked me to touch his
he touched my bum
LC how did that happen?
TM he asked me turn around-touched my bum
LC what did he touch you with?
TM with his hands
LC then what happened?
TM I went upstairs, with Paul, together
LC Was your zipper up or down?
TM Zipper up
LC When you touched Paul -did you touch him inside his pants or outside?
TM Outside-outside
LC I'm going to ask a personal question...Did anyone ejaculate?
TM It was getting bigger
LC Whose was?
TM Mine - Don't know about Paul's
LC So what made you stop when you did?
TM Somebody else might see us
LC So how did it finish?
TM I did my zipper up -both went upstairs
Ms. Cowell asked him a few questions as to why he was afraid of the grievor and
returned to the incident. He confirmed that, while in basement, the grievor told him to
put the apples down after he had gotten them; that after the incident occurred, he brought
the apples back upstairs and put them in the fridge. Ms. Cowell then questioned him
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concerning his reporting of the incident to Ms. Mott and his swearing at Nfr. Bailey. She
asked him why he thought he should tell someone and he replied that he "felt funny in his
chesf~. She returned again to the specifics of the incident asking him if anyone else knew
that he was in the basement - to which he replied that J aelyne saw him (but not the
grievor) upstairs with the apples in his hands. Ms. Cowell then questioned him
concerning an earlier incident (to which further reference will be made in due course) and
returned again to the incident in question asking TM whether the grievor had said
anything to him - to which he replied that the grievor had said not to tell anybody to only
"tell him- just him".
Ms. Cowell interviewed TM again on June 16th. By this time she had met with
the grievor on June 13 who) although declining to discuss the allegations on the advice of
counsel, did at least deny that he had touched TM. Consequently) one of Ms. CoweWs
purposes of interviewing TM again was to determine if his account of the incident
remained consistent with what he had said before and also to observe his body language
(physical reactions, eye contact etc.) in an effort to assess his credibility. In her words)
she "wanted to see whether with different questions he would respond the same way,"
Her conclusion at the end of that interview was that his account remained consistent and
that she saw nothing in his body language that would indicate that he was telling anything
other than the truth.
The notes with respect to that portion of the interview dealing with the alleged
incident state as follows:
LC Can you tell me again about Paul Collins
TM Got two bags- apples-Paul asked me to go to the basement
LC Was anyone else there?
TM AB- Paul told A to leave.
I,C Then what happened?
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TM Paul touched my penis, inside my pants and my bum-outside my pants.
LC Did you do anything?
TM Yes I touched his penis outside his pants, like this- TM then demonstrated
by rubbing the outside of the groin area of his own pants. We went upstairs
LC Why did you go upstairs?
TM I think (pointing to his head) - somebody might see me.
LC Did Paul say anything before you went upstairs?
TM Paul said Don't tell anybody about this.
LC Who carried the apples upstairs?
TM I did
LC What did you do with the apples?
TM Put them away
LC Where you surprised when Paul did this?
TM No
LC Why didn't you tell someone at work?
TM Scared
LC They why did you tell Cheryl the next day?
TM Hurts right here Lu-Ann (pointing to his chest)
I turn next to the evidence given by TM under oath at the arbitration hearing. It is
useful to set out that evidence in transcript form. Ms. Cowell testified that, as a person
with a disability, TM would tend to be compliant to people in positions of authority.
Hence it is important, in the context of assessing the credibility that should be attached to
his evidence, to be sure that he is not merely agreeing with what is put to him by counsel,
either in chief or in cross, but is rather offering his own independent account of what
happened. In short, the rule against putting in evidence through leading questions, has
even greater importance in a case like this one. Similarly, although cross examiners are
permitted to ask leading questions, the value of any damaging admissions elicited through
such questions is, in a case like this, somewhat diminished.
What follows, therefore, is a "transcript" (prepared from the arbitrator's detailed
notes) of the evidence, both in chief and in cross, ofTM with respect to the incident itself.
19
Evidence in Chief
Q. Did Paul do something to you in the basement?
A. Yes, he asked me to some bags - handed me a bag
Q. What did he say?
A. Get some apples - downstairs in the basement. When he gave me the bags I
was upstairs
Q. What happened?
A. Went downstairs with Paul
Q. Was anyone downstairs?
A.A.B.
Q. What happened with him?
A. He left.
Q.How?
A. Paul asked him to leave
Q. What was A doing down there?
A. Washing the floor
Q. What happened after A. left?
A. Paul opened my zipper -he touched my penis w and then he asked me to turn
around - touched my bum.
Q. Did you touch Paul?
A. Yes
Q. Why?
A. He asked me to touch him - he got close to me
Q. Where did you touch him?
A. On his pants. I touched Paul on the outside. [witness stood up and gestured by
grabbing his crotch]
Q. When Paul undid your zipper what did he do with your penis?
A. It was getting big, horny
Q. What did Paul do with your penis?
A. Touched it. He touched it outside of my pants.
Q. After he asked you to turn around what happened?
A. His hand was on my bum
Q. Then what happened?
A. I zipped up my zipper -followed Paul upstairs - Paul went up first
Q. What happened to the apples?
A. Put them in the crisper fridge- next to the kitchen
Q. When you were downstairs did Paul say anything to you?
^ I'ore ~";rl (IOl,'t ~,," "n"thl'I1(J to "TI"l"'''d'' "IJOt1t tI1;"
~ ,).. .... ...OJ L~ ~ '- ,~ .L,.. LJ l.J. J -&,~_.1. jAb .. -" ,-.I. J. "" l.-J' 'lJ } ~.. '- t, I l,_}
20
There followed some questions concerning his reporting.ofthe incident to Cheryl Mott,
Russ Bailey and Gloria Wood. When asked why he did not tell Jan Sparks about what
had happened he stated that he "was scared and hurting, feelings in my chest" but that
after he told Cheryl Mott he no longer had any "hurting" in his chest. His examination
continued:
Q. What time was it when you were in the basement?
A. Almost time to go home - after 2:00 p.m.
Q. What time do you go home normally?
A. 2.30
Q. When you came upstairs with the bags did you see anyone?
A. Jaelyne
Q. Do you remember where Paul went?
A. He went back in the kitchen, I think
Q. Is there a bathroom around the kitchen?
A. In the TV room -close to the kitchen.
Cross Examination:
Q. Who was downstairs?
A. A. was mopping up. Paul asked him to leave
Q. Do you remember Paul saying to A, you are finished now, you can go upstairs?
A. Yes
Q. Then you went to get the apples?
A. Yes
Q. And Paul undid your zipper?
A. Yes
Q. Then he grabbed you on the outside of your pants?
A. My penis was out.
Q. Who pulled out your penis?
A. Paul did
Q. He reached inside and pulled out your penis?
A. Yes. He opened the zipper, reached inside and pulled out my penis.
Q. When he pulled it out what did he do?
A. Grabbed it. It was getting hard, horny.
Q. How long did he hold on to your penis?
A. ]Jon't remember how long. He was holding it and it was getting bigger.
Q. For tlve minutes or less time?
21
A. Don't know how long he held it.
Q. Do you remember on Thursday showing Russ what happened with Russ~s hand
down his pants?
A. No, I don't remember that.
Q. Do you remember telling them that he [the grievor] put his hands down inside
your belt?
A. No, I don't remember that. He opened my zipper - that's all.
Q. Do you remember telling Lu-Ann that Paul put his hand down your pants?
A. No, I don't remember that..
Q. Are you sure today that he did not put his hand down your pants?
A.No
Q. Paul never put his hands down your pants?
A. No, he opened my zipper, that's all.
Q. He let go of your penis and told you to turn around?
A. Yes, I did up my zipper first.
Q. When you turned around what did Paul do?
A. Put one hand on my bum
Q. Was it on the outside of your jeans?
A.. Yes
Q. How long did he touch it?
A. I don't k~now how long. I felt it, that's all. He was touching it.. When he
stopped touching my bum I picked up the apples and went upstairs
Q. Was it downstairs that he said not to tell anyone?
A. Yes.
TM was also asked whether, when he was walking with Cheryl Mott, he had told
her that he did not touch the grievor. TM replied that he could not remember.
As noted above the grievor categorically denies that any incident at all occurred.
He testified that sometime around 2.15 p.m. on Wednesday, May 21, 1997 he asked a
number of clients working with him in the kitchen if any of them wanted to go with him
to the basement to get some apples. About 3 clients volunteered and he selected TM to
. go with him as he had been down there with him before and he did not want to leave him
upstairs alon,e where he might wander about the building and intenupt co-workers -
something that he had done before. He admitted, in cross examination, that he cannot
22
always ensure that TM is never left alone as there are times, ego when he has to count the
cash for the cafeteria (which can take between 10 and 15 minutes) or go to his
supervisor's office for some reason when he has to leave his crew, including TM, alone.
After indicating that TM could come with him he gave instructions to the others as to
what to do while he was gone. He directed TM to wait for him at the janitor's room at the
head ofthe stairs while he [the grievor] went to the supervisor's office to get the key for
the furnace room where the apples were stored. When he went to the supervisor's office
he saw TM in an alcove outside of "Herb's room" (a room opposite from the office). He
reM directed TM to go to the janitor's room, went inside the office and got the key from a
key safe and proceeded to the janitor's room where he found TM waiting for him.
They proceeded downstairs where they found AB (who is not under the grievor's
supervision) in the furnace room mopping water off the floor, one of his regular duties.
The grievor speculated that AB's caseworker must have obtained the key for the furnace
room and opened it for AB and then returned the key to the safe where he [the grievor]
found it. He complimented AB on the job he had done and told him he could back to his
work room. The grievor stated that AB is a perfectionist who, if not told to leave, would
simply continue mopping until the floor was completely dry. When AB left the grievor
instructed TM to sort the apples and put the good apples in one bag and the bad ones in
another - a task which took approximately 5 minutes. The grievor observed him doing
that and, after he was finished, TM took the apples upstairs while the grievor remained
behind to ensure that the furnace room door was pulled shut so that it would
automatically lock. He then came back upstairs, returned the key to the office, and went
back to the kitchen. He was unable to recall whether or not TM had taken the apples to
the kitchen although he believed that this was the case.
23
Thus, the grievor denied that any of the conduct attributed to him in the testimony
ofTM occurred; specifically that he neither touched TNI nor asked TNI to touch him.
The grievor also testified as to certain events occurring the following day, which
events, in the submission of the union, provided TM with a motivation to fabricate the
story which he later told to Cheryl Mott and others that afternoon. Specifically, he
testified as to two occasions that day when he had to speak to TM about improper conduct
on his part and to threaten him with the loss of his job in the kitchen if he did not stop.
The first was at about 9:00 a.m., while they were preparing lunches in the kitchen, when
he observed TM patting other clients on the bum - about 5 other clients in the course of 5
minutes. The grievor testified that he took TM aside, either into the cafeteria or the
hallway outside the kitchen, and asked him to stop, telling him that what he did was not
appropriate; that it did not look good if other people came in and saw it; and that if he
continued he would Hwrite him up" and he could possible lose his job in the future as he
[the grievor] could not watch him all the time. The grievor further testified that this was
not the first time he had to speak to TM about this kind of conduct; that he had spoken to
him 2 or 3 times about it within the prior week and had told him on each occasion that it
was not appropriate ~ although he did not, until this incident on May 22, ever threaten him
with loss of a job if he were to continue. He stated that he thought he needed to threaten
him now as he felt that TM was not listening to him and the situation was becoming more
.
senous.
One of these prior incidents was that to which TM himself referred to, viz, the
incident that took place in the First Aid room or the room leading to the first aid room. It
may be recalled that TM was unable to remember when that incident occurred. In respect
to that particular incident the gricvor denied ever telling TM that he could not :'touch the
24
other guys~';that he could touch him [the grievor], or that he would have to pay him to
touch him if he paid him money.
The second occasion on which the grievor had to speak to TM on May 22 about
his behaviour was while they were outside from about 12:35 to 2:30 p.m. cleaning up the
yard in preparation for the planting of some flowers. The grievor testified that during this
period he had to speak to TM on approximately 5 separate occasions about his leaving the
area where they were working, going up to the windows and looking inside and making
faces at other clients working inside and talking to them - disrupting their work. He told
TM that he was going to "write him up" (using that term) and that it would possibly
jeopardize his job in the future. Shortly after they finished their work outside TM left to
go home - following which he reported to Ms. Mott on the incident occurring the previous
day.
Although the grievor testified that he counselled TM twice on the morning of May
22 there is no record of him having completed an incident report to that effect. The
agency keeps records of incidents involving clients either in a log book that is kept at
their residence or in a file kept at their place of work. Although TM's file does contain
some notations of other counselling, nothing appears in the file with respect to his having
been counselled for patting bums of other clients.
TM was cross examined with respect to each of these two incidents occurring on
May 22. He confirmed that the grievor did speak to him on the Thursday about touching
"other guys butts"; that he told him not to do it and that if he continued he might not be
able to work in the kitchen again. He also confirmed that this was not the time when
(according to him at least) the grievor said that he had to pay him. There is some
25
confusion in his evidence with respect to when he was told to stay away from the
windows. Initially he said that he could recall being told that he would be written up for
that but he could not remember which day. When it was suggested to him by N1r. Bevan
that this was on Thursday he agreed but when Mr. Bevan later sought to have him
confirm that it was on Thursday that he was told that he would be reported for looking in
the windows he said he could not remember. Nor could he remember going to the
windows to look at and talk to the other guys.
3. Assessment of the Evidence: Credibility
The resolution of the issue as to whether the incident OCCUlTed at all turns entirely
on my findings as to the credibility ofTM and the grievor - as there are no other
witnesses to the incident. Moreover, this is not the kind of case where there is agreement
that something occurred but one witness embellishes and the other diminishes different
aspects of the incident. Nor is this a case where portions of the incident might have been
forgotten or where there is some ambiguity in the conduct which might lead to different
characterizations of events. Rather, the conflict in the evidence is open and direct.
Whereas TM describes an incident which the union concedes would warrant the discharge
of the grievor, the grievor denies the occurrence of any incident at all. Obviously, one of
them is not telling the truth,
In support of its position that TM has fabricated this whole incident the union
relies on certain inconsistencies in his own different accounts of the incident, many of
which went unchallenged by Ms. Cowell in her investigation of the allegations. The
union also relies on certain other incidents in which TM has been revealed, in the union's
submission, to have lied in order to get other staff in trouble when action has been taken
against him for bad behaviour on his pm1. Thus, it is argued that on Thursday May 22,
26
1997 TM, angry at the grievor for having twice threatened to "write him up" and take
away from him something that he valued, viz, working in the kitchen, used the innocent
contact that they had in the basement the day before as the basis upon which he would
build the story that he told to Cheryl Mott and others later that day,
I deal first with the evidence respecting other incidents in which, according to the
union, TM has revealed himself has having a "propensity to lie", a propensity to say
things that may get staff in trouble, when he is challenged or criticized about some aspect
of his behaviour.
The oldest of these incidents relied on involved a situation between TM and
Jaelyne Feetham in 1992. It began when TM complained to one of his residential
counsellors that Ms. Feetham, with whom he worked, had told him to "get his fucking ass
back to work". He was asked if he was telling the truth and replied that he was and was
then told by his residential counsellor that, while Ms. Feetham had the right to tell him he
had to go back to work, she should not have said it that way and that he should talk to her
about it. The next day he spoke to Ms. Feetham, told her he did not like what she said,
and she denied it, saying that all she had told him was to "get back to work"; that she did
not say that word. TM then apologized to her admitting that she had not said what he
claimed she said; that he said it because he was mad at her. Some 2 weeks later he was
counselled in respect of this incident and, when the incident was reviewed with him, he
repeated his claim that Ms. Feetham did in fact tell him to "get his fucking ass back to
work", A couple of days later he was in a discussion with Gary Carr, a caseworker, about
some of his personal problems at the residence and was advised that if he were to be
truthful with the staff at the home about this statement he might feel better about himself.
First think in the morning on the next day 'I'M reported to Mr. Carr that he had done what
27
was suggested, that he did confess to lying about the statements that Ms. Fee[ham was
supposed to have said, as a result of which he "felt better~',
Two days later he was speaking with another of his residential counsellors, Sherry
Reaume, and told her of how Mr. Carr was trying to "cool my mind"; that he was
"changing my mind and I don't like it." When Ms. Reaume told him that all he needed [0
do was tell the truth he replied that he could not tell the truth because he would get fired
and would have no place to work. Ms. Reaume again told him that all he needed to do
was tell the truth and he said "I've been thinking about it and I did tell the truth - Jaelyne
did swear at me - and said to me "get your fucking ass back to work". When asked why
he was upset if he was telling the truth he replied that "they're trying to change my mind
and I don't like it." When Ms. Reaume again assured him that everything would be aU
right ifhe told the truth; that ifhe was lying he should say so as he was making a serious
accusation as it was unfair to ]aelyne and it should be resolved, he said "Jaelyne did
swear at me and on Monday (a reference to a meeting that had been scheduled to discuss
his earlier confession of lying) I am going to tell them that." Ms. Reaume asked him if he
felt better and he told her that "I feel better now that I told the truth."
At the meeting, attended by, inter alia, Ms. Feetham, Ms. Smith, Ms. Roberts, and
Ms. Mallett, he again admitted that he lied and apologized. Evidently it was not known at
the meeting that he had, only 3 days earlier told Ms. Reaume that he had not lied and that
they were trying to change his mind at work. Nevertheless, Ms. Roberts, when apprised
of that fact, remained satisfied that "the truth had come out" at the meeting, that is that he
had lied when he made his accusation.
Uru.il~r cross examination Ms. Cowell admitted that this incident revealed him as
28
changing his mind 3 or 4 times and admitting to lying at least twice. However, it was her
view that Ms. Feetham probably did say something to him that involved some swearing
and that when he was told by his supervisor (Gary Carr) that he was lying he recanted in
order to protect his job. It was her view that, as a person with a developmental disability,
he was particularly vulnerable to persons in authority and would quite readily comply
when faced with some unpleasant consequence such as the loss of his job. Ms, Cowell
also confirmed that she spoke with TM about this incident at some point during her
investigation - although not on either June 4 or June 16. She stated that he remembered
the incident, repeated the sequence of events accurately and, when asked what he now
thought she said, replied that "I think the said 'get your fucking ass back to workH, Ms.
Cowell made no notes of this conversation but maintained that TM had remembered the
quotation accurately notwithstanding the expiration of 5 years since the incident.
The details of this incident were also addressed in TM's evidence. In his evidence
in chief he was asked ifhe had told a lie about Jaelyne and replied that he had, that he
"thought she said get the fuck back to work". When asked whether he still thinks that
today he replied: "kind of, yes". Under cross examination he repeated that he thought
that this is what he had heard. However, when asked whether he had told Jaelyne that he
had made it up because he was mad at her and had apologized for it, he said that he could
not remember that. When asked again whether Jaelyne said it he repeated that he thought
that that is what he heard,
The remaining examples of alleged past untruthfulness by TM are of more recent
vintage. The first concerns an incident in September 1996 in which it is claimed that TM
told two of his vocational caseworkers, Sue and Sandy, that a residential caseworker,
Alan Butler, had touched his "privates". Moreover, it is alleged that this was said because
29
he (TM) was upset at Mr. Butler because he [Butler] had spoken to him about his laundry
accumulating. The evidence respecting this incident consists entirely of entries in a log
book. A September 18, 1996 entry written by Mr. Bailey states that TM was irritable
after getting home from work and whispered about getting "Big Ar' (Butler) in trouble
and when approached by Mr. Bailey said that he had told two workers (Sue and Sandy)
that he was touched in his "privates". When asked where he pointed to his chest and said
that he [Butler] grabbed his "tit" at which point he was told that men do not have "tits".
The note further records that he was upset with Mr. Butler because of personal laundry
that had accumulated and that when confronted about the time of the incident he admitted
to a lack of honesty. The note concludes by noting that "previous incidents around lying
were reviewed" and stating that TM was "to advise Sue and Sandy about lack of honesty"
On September 19 there appear 3 different log entries touching on this issue. Cindy
Hegman noted that TM told her that it was not true what he said about Mr. Butler and that
she [Hegman] spoke to him about the "boy who cried wolf' and how if he continued to
lie no one would believe him when he is telling the truth. Later Ann Brown wrote that
TM had told Sue and Sandy that "he had lied yesterday". Finally, Gloria Wood noted a
conversation that she had with Sue and Sandy where she asked ifTM had said that a male
social worker had touched his "privates" to which they replied that he had not; that he had
told them that "when he and Al goof around Al occasionally will put his hands on upper
chest gently pushing him away; that TM "never told either worker that Al touched his
"privates" .
In her second interview with TM on June 16th Ms. Cowell asked him ifhe had
ever told a lie and he said that he had and it "about Big Al at work". However, when she
asked him about that he said that he could not remember. She did not pursue this with
30
him at the time as she was personally not aware of the incident. However, later she did
speak to Ms. Wood who related the substance of her log entry as set out above. She did
not, however speak to Mr. Bailey until after the grievor had been terminated and the
subject ofTM's credibility had been raised in one of the grievance meetings. At that time
she asked him what the "previous incidents" of lying were but he was unable to give her
any specifics.
It was Ms. CowelI's view that TM did not tell a lie on this occasion; that at best he
used the wrong words to describe being touched in the chest area. When asked why TJ\tI
himself would characterize this as a lie, both when he spoke to Ms. Hegman and when he
was interviewed by Ms. Cowell on June 16, she stated that she understood (from the log
entry that "previous incidents of lying" were reviewed) that he was told that he was lying.
However, this was an assumption made from the notes as she admitted that Mr. Bailey
did not tell her that he had accused TM of lying in connection with this incident.
When TM testified at arbitration he was asked a number of questions concerning
this incident. In chief he agreed that he had told a lie about AI Butler but said that he did
not remember what it was. Nor did he remember whether anyone had told him that he
lied about it. All he could remember was saying "something" about Mr. Butler. Again,
in cross examination, he agreed that he had lied about Big AI but could not remember that
he had told someone that Big Al had touched his private parts. Similarly, although he
remembered telling Mr. Bailey that he was mad at Big Al because he made him do his
laundry he could not remember what his lie was.
A third incident OCCUlTed on the same date as the alleged Butlcr incident. Unlike
the Butler matter this was documented in an incident report dMed September 18, 1996_
31
Evidently TM told Sue at work that he had seen a movie about a woman being raped and
asked her what she would do if he was to "touch a support worker inappropriately". She
replied that she would defend herself, call the police and press charges against him. A
discussion followed about how she would be able to call the police if there was no phone
in the work room and TM resumed working. Some time later another support worker
entered the work room and TM said that Sue had stated that "she would hit him" _
evidently a reference to her saying that she would defend herself. Sue went over the
earlier conversation with TM and he apologized to her for making her feel uncomfortable,
This incident was not put to TM in either of his interviews with Ms. Cowell as she did not
become aware of it until after the grievance meeting. Nor was it raised with TM when he
testified at the arbitration hearing.
The last incident, which is relied on by the union, occurred on June 13, 1997
during the time that Ms. Cowell was investigating the allegation against the grievor. On
June 13 TM and another client, D, were working in the kitchen when TM was hit in the
head with a tray. An argument broke out and Brian Kelly, a vocational caseworker,
intervened and it was determined that what had occurred was an accident. Mr. Kelly left
the area and a couple of minutes later TM slapped D on the arm for which he was later
given a one day suspension. When he was asked about this by Mr, Kelley he denied
hitting D. When Ms. Cowell interviewed Mr. Kelley on June 16th, she asked him ifTM
had ever lied to him and he related to her this incident - adding that there had been other
times "like the ordeal with Jaelyne". When asked by Ms. Cowell whether or not TM
would "maintain a lie" Mr. Kelly replied that generally he did not.
When Ms. Cowell interviewed TM later on that morning, after she had interviewed
all of the staff: she began by asking him about the suspension and he told her that it was
32
because "1 got hit on the head with a tray so 1 slapped the guy". She did not pursue that
incident any further and went on to ask him if he knew what a lie was and whether or not
he had ever told a lie to which he responded with the incident about Big Al - saying
nothing about the lie to Mr. Kelly. Further, although Ms. Cowell had only a short while
before been told bv Mr. Kelly of another lie, she did not ask TM about it or refresh his
. ,
memory .
In his evidence TM admitted that he lied about not hitting D "because I was afraid
I would get into trouble."
The union made extensive submissions to the effect that, based on the evidence,
TM is a person who, when threatened with some adverse consequence, will lie to get a
caseworker in trouble. Thus:
1. When Jaelyne Feetham told him to go back to work - he reported that she told him to
get his 'fucking ass back to work" - ostensibly because he was annoyed at her;
2.When Al Butler told him to do his laundry he made up a story about him touching his
"privates";
3. When he was accused of hitting D he lied in order to avoid getting into trouble.
Accordingly, it is submitted that, having regard to this pattern of behaviour and to the fact
the grievor twice threatened TM with loss of his job on the morning of May 22, his
reporting later that day of an incident which allegedly occurred the day before (and
concerning which no mention was made on that day) ought not to be believed.
I am not persuaded that the prior incidents of alleged lying serve as any reliable
basis for concluding that as a gencral proposition TM is someone who, when angry at a
caseworker will lie to get hirn in tj'()lJhle.
33
Although the J aelyne incident shows him repeatedly changing his mind back and
forth over what she said, an examination of the evidence shows quite clearly that he was
bothered about changing his story and admitting to lying; that he was annoyed about Gary
Carr "cooling his mind" and getting him to change his mind. I accept Ms. Cowell's
rationalization of this behaviour as coming from the fact that he was concerned about
keeping his job and vulnerable to the suggestion from caseworkers that he had lied.
However, when he reflected on it, he came back to his original claim ~ a claim which it
may be noted was repeated to Ms. Cowell during her investigation and at arbitration.
Thus, although there was a brief period when he recanted on this claim, he has
consistently held to the view originally expressed up to the present day. Thus, in the
circumstances I do not believe that much can be made of his apparent changes of mind at
the time of the incident.
As for the Butler incident it appears from the log notes that, as a matter of fact, he
never did tell Sue and Sandy that Mr. Butler had touched his private parts. At most, his
"lie" was that he told Mr. Bailey that this is what he told Sue and Sandy when in fact he
had not; when all he had told them was about being pushed in the chest when they "goof
around". However, evidently Mr. Bailey believed that this is what he told Sue and Sandy
and counselled him accordingly, such that the next day he told Cindy Hegman that he
had lied to Sue and Sandy when in fact he had not. I am not surprised that, in the
circumstances, he would have some difficulty in understanding and remembering exactly
what the lie was. I am satisfied that, as with the J aelyne incident, he readily admitted to
telling a lie when that was suggested to him, but when the facts do not bear out the claim
that he was actually lying, he has some difficulty in reconciling his admission with the
fact.
34
As for the incident in which he "twisted); Sue's statement that she would defend
herself from a rapist into a claim that she said she would hit him, I regard this as
mischievous rather than malicious behaviour on the part of TNl and do not regard it as of
any significance in terms of establishing whether or not he has, as the union has alleged, a
propensity to lie. I note, in this regard, that the union made no reference to this particular
incident in its final submissions.
Finally, with respect to his untruthful denial to Mr, Bailey that he hit D, I can
understand how it is that TM may have not have volunteered any information concerning
this "lie" to Ms. Cowell. Although it was unquestionably a lie to deny hitting D, there is
nothing in the record to indicate that, unlike the Jaelyne and Al Butler incidents, he was
ever accused by Mr. Kelly of lying. However, I am surprised that Ms. Cowell, having
come fresh from the interview with Mr. Kelley and having raised the very subject of this
incident at the start of her interview, would not have followed up his admission of telling
a lie concerning Al Butler with a question concerning this incident. While I accept her
evidence that she forgot to raise it, I nevertheless find it surprising.
On my review of the evidence there is no basis for concluding that TM is someone
with a propensity to lie when he is angry or upset at being asked or told to do something
by one of his caseworkers. For the reasons given none of the examples cited allow for
that inference to be drawn. Moreover, it may be noted that, even if these other incidents
are regarded as lying, they are all exceptionally simple in nature; claims that a particular
word was used, or a part of the body touched, etc. None resemble the elaborate and
detailed account given of the incident that allegedly took place on May 21,1997. Finally,
I note that there is no cvidcncc in this casc that, prior to the alleged incident, TN! was
ansTry or Dnnoyed (lJ th~ grievoJ' for' having ihrentened him with some sanction. In short,
35
none of those elements present in the prior incidents in which it is alleged that TM was
lieing are present in this case. Although there is evidence from the grievor, confirmed by
TM~ that he did "threaten~' him on May 22~ the day he reported the incident to Cheryl
Mott, there is no evidence that this threat made TM angry at the grievor. In his evidence
in chief he stated that before the incident he "liked Paul" but now he "no longer likes
him". Thus, I conclude that, based on the evidence of these prior incidents~ there is no
basis for challenging TM's credibility in general.
In support of this conclusion reference may be made to the fact that no "risk
assessment" done of TM indicates that he has a propensity to lie in order to get others in
trouble. The process of developing "risk assessments" of clients was one which~
ironically, came about through an initiative taken by the grievor in 1995. At that time he
was local union president and co-chair of an Employer Employee Relations Committee
and he presented a paper to the Committee for discussion concerning the subject of
reducing the possibility of clients alleging staff abuse. Although some of the
recommendations~ viz~ ensuring that staff never be alone with clients~ could not be
implemented for financial reasons, the employer and the union did develop a policy
wherein a union and management member of the joint health and safety committee and
Ms. Cowell, would develop a "risk assessmenf' of clients. The purpose of the risk
assessment was to "assess health and safety hazards associated with particular
persons...and to identify safe work procedures and/or practises", viz, to lessen any
associated risk to staff. According to the policy a risk assessment was to be done "when a
person~s past or present actions indicate the potential for a safety hazard, ego aggression.
false allegations", destruction of property etc." and a copy of that assessment placed in
the client's file. Although a risk assessment for TM, done prior to May 1997, indicated
problems with aggressive behaviour, there was no risk asscssmcnt respecting "fhlse
36
allegations". Thus, to the extent that this risk assessment is a reliable indicator, it did not
suggest that allegations of abuse by TM should, in general, be viewed as lacking
credibility ,
I turn, therefore, to a consideration of the extent to which his account(s) of the
incident giving rise to the grievor's discharge remained internally consistent through their
frequent tellings to Ms. Mott, to Ms. Mott, Mr. Bailey and Ms Wood, to Ms. Cowell on
June 4th and June 16th, and at arbitration. To the extent that such inconsistencies exist
they would call into question the reliability of his evidence. Conversely, to the extent that
his account remained consistent throughout, it would warrant belief as to its truthfulness
and accuracy.
The evidence shows consistency as to times, as to the sequence of events and as to
matters of detail, both with respect to the incident itself and surrounding events. What
emerges from all accounts of the incident is the following: that after lunch and shortly
before quitting time TM was given two bags by the grievor and told to go to the basement
to get some apples; that the two of them went to the basement where they found AB
mopping the floor; that the grievor told AB to leave; that after AB left the grievor pulled
TM;s zipper down, exposing his penis, which he then touched resulting in TM
experiencing a small erection; that the grievor asked TM to turn around whereupon he
touched TM's buttocks; that TM pulled up his zipper; that (with the exception of the first
account to Cheryl Mott) the grievor asked TM to touch him and TM touched the grievor's
penis on the outside of his pants; that the grievor told him not to tell anyone about what
had happened; that the grievor went upstairs first followed by TM; that TM was seen by
Jaelyne when he UlTived upstairs; that he put the apples in the fridge; that the grievor went
to the kitchen or to a wnshroom in the TV room near the kitchen; that he felt 50rne
37
"hurting" in his chest; and that he felt better after he told Cheryl Mott what had happened.
There are some differences in his evidence as to how the grievor obtained access to
his penis. He first told Ms. Mott that the grievor undid his zipper and reached inside and
touched his penis. The notes of his account given to Ms. Mort, Mr. Bailey and Ms. Wood
a short time later that same evening state that the grievor "put his hands down his pants"
and touched his penis and in the role play the notes record that TM put Russ Bailey's left
hand "down his pants". The phrase "down his pants" was repeated by TM on the first
interview that he had with Ms. Cowell on June 4th. This matter was not dealt with in
detail at the June 16th interview. In his evidence in chief he stated that the grievor undid
his zipper, reached inside his pants and pulled out his penis. In cross examination he
confirmed that evidence and denied the suggestion that the grievor had reached "down"
in his pants.
I am not persuaded of any significant contradiction in this evidence. Ms. Mott
testified that what TM demonstrated in the role play was, except for the question of his
touching the grievor, the same as what he described to her on the walk - and in that
account he spoke of the grievor reaching inside to touch his penis. Ms. Mott also stated
that in the role play TM took Mr. Bailey's hand and put it "in the belt line area of Bailey's
pants" indicating that the note of the role play may be a somewhat inaccurate description
of what TM actually did. In any event the note also says that "right hand used to unzip
pants and placed on penis." I am satisfied that what TM said, and meant to say, was that
the grievor held his trousers by the belt with his left hand and, with his right hand, pulled
down the zipper and reached inside to take hold of his penis.
While 'I'M's aCCollnt of the incident retains consistency in many respects over a
38
number of different tellings, there was one fundamental inconsistency between his first
account, as told to Cheryl Mott, and all others. He told Ms. Mott that he was asked by the
grievor to touch him but he did not do so, saying that he <<liked womans". However, a
short time later he confidently demonstrated to Ms. Mott, Mr. Bailey and Ms. Wood how
he had touched the grievor. In his June 4th interview by Ms. Cowell he admitted that he
had touched the grievor on the outside of his pants. At the June 16th interview he
repeated that and again demonstrated how he had done so - a demonstration which was
repeated before me at arbitration.
What is to be made of this inconsistency? It is submitted by the union that it calls
into serious question the reliability of all ofTM's testimony. As counsel argued - ifan
accusation starts with a lie one should want to know why - and no one ever asked TM
why it was that he changed his story with respect to whether or not he had touched the
grievor. As noted Ms. Mott, although aware of the inconsistency, did not question TM on
it when he did the "role play", Nor did Ms. Wood question him on this - although it
would appear that, at the time of their meeting, Ms. Mott had not told her precisely what
had been told to her while they were out walking. Consequently, she may not have been
aware of any inconsistency.
Ms. Cowell, however, was fully aware of the inconsistency. Although she had not
had an opportunity to read Ms. Mort's notes of what was said during the walk prior to her
first interview with TM on June 4, she was aware (through discussions with Ms. Smith)
of the difference between what had been initially reported to Ms. Mort and what had been
said and demonstrated in the meeting with Ms. Mott, Mr. Bailey and Ms. Wood later that
same evening. Although she neither asked him why his story had changed or challenged
him on any aspect of it she stated in evidence that she presl1Hwd that when TM '.vas
39
speaking with Ms. Mott he simply may not have wanted to admit to her that he had
touched the grievor. While Ms. Cowell was unable to say why she did not challenge TM
on the consistency of his story she denied the suggestion put to her that it was because
she did not want to upset him. The first occasion on which TM was challenged at all as to
this inconsistency in his story was when he was cross examined at the arbitration hearing.
However, when asked ifhe had told Ms. Mott (when they were out on the walk) that he
had been asked to touch the grievor but did not, he replied that he could not remember
that.
The other "central" inconsistency which Ms. Cowell chose not to pursue at length
was that concerning the day on which the alleged incident occurred. Ms. Cowell
confirmed that she was aware that TM's statement (at the June 4th interview) that the
alleged incident occurred on the "same dayH as he spoke to Cheryl Mott (viz, May 22)
was contrary to fact as Ms. Smith had told her that it had occurred on Wednesday, May
21. Although Ms. Cowell did not point out to him (on June 4th) that he was mistaken as
to the day on which the incident occurred she did ask him, at the June 16th interview why
he did not tell Ms. Mott until the next day. However, she received an answer which was
unresponsive, viz, "hurts right here Lu-Ann (pointing to his chest) and she did not pursue
the matter any further. Nor did she ask him why, if he was "scared" and "hurting" as a
result of the incident (as he had told her) he nevertheless went back to work the next day;
or whether the grievor did anything to him the next day. When asked why she did not
pursue these questions with TM at either of the interview Ms. Cowell replied that she did
not know.
In addition to challenging the consistency ofTM's account of the core elements of
the incident the union also argues that there were a number of other respccts in which
40
TM)s response to questions asked of him by Ms. Cowell changed from telling to telling
thereby raising some doubt as to the reliability of his account in general. Again, it is
submitted that the failure of Ms. Cowell to challenge him on any of these inconsistencies
casts doubt on her claims that, in general, TM was consistent throughout. I turn to a
consideration of these alleged inconsistencies.
During the course of her first interview with TM Ms. CoweJl asked if this had ever
happened before and TM told of an incident which occurred in the first aid room at 101
Stewart Street (time unknown) when the grievor took him into the first aid room, told
him not to "touch other guys butts)) in the kitchen (which is located across a hallway from
the kitchen) and told him that Hyou can touch me anywhere but you can't touch the other
guys." Her notes of that interview state that TM said Hhe asked me to touch him -any
parts of him)) but that he did not do so on that occasion. During the June 13th interview
Ms. Cowell again asked TM if this had happened to him before and he stood up, leaned
his body against the wall and he repeated the incident in Hthe room next to the kitchen"
when, according to her notes, TM said: "Paul said TM touch me anywhere even on the
private parts and you pay one or five cents to do it."
In his cross examination of Ms. Cowell as to this incident Mr. Bevan pressed her
repeatedly on a portion of her notes that indicates that initially when she asked TM if
anything like this had happened before with the grievor he twice denied it and only when
asked a third time did he begin to relate the incident occurring in the first aid room. It
was suggested in argument that she pursued this issue because she knew, from a report to
her from Ms. Smith to the effect that TM had related the first aid room incident to the
police, and that she wanted to get this on record (as he had not yet made any reference to
this incident in speaking to Ms. Mott or to Ms. Mott, Mr. Raik'y and Ivfs. Vifood.) In
41
evidence Ms. Cowell denied pursuing this because of what Ms. Smith had told her and
insisted that she was merely trying to find out whether something like this had happened
before. She did consider his earlier denials to be lying. Rather, it was her view that, as
"he thinks concretelf" when he was asked if this had happened before he understood that
to be asking him whether he had been touched on the penis before - which he had not.
Ms. Cowell confirmed that she did not ask TM why he had not related this incident
either to Ms. Mott or to Mott, Bailey and Wood. Nor did she explore with him the fact
that, whereas in the second interview he spoke of an offer of money from the grievor, no
reference was made to that in the first interview. As to why - she said that it had never
entered her mind to ask him why he made no mention of an offer of money at the first
interview. When asked whether she really believed that the grievor would have told TM
that it would cost him between 1 and 5 cents to touch him she said she believed that TM
was telling the truth, that "something was said about paying and TM's understanding of
paying would have been 1-5 cents." When it was suggested to her that the grievor might
have said something like "you touch me and you'll pay for it" -she declined to speculate.
Ms. Cowell also confirmed that this was the first time she learned that TM had been
touching other clients "butts", that she was concerned about this as it was inappropriate
behaviour and asked Ms, Mallett to check the files to see if there was any incident report
on it but did not herself (or have anyone) else speak to TM to tell him that this was not
acceptable behaviour.
Ms. Cowell was also cross examined with respect to an alleged inconsistency
between TM's June 4th report that he and the grievor came up from the basement
"together" and his statement at the May 22nd meeting with Mott, Bailey and Wood that
"Paul left first then [TM] came up afterwards", Ms. Cowell stated that, until this was
42
pointed out to her, she did not realize there was any difference. In that regard her
attention was also drawn to the fact that~ notwithstanding TM's statement that they came
out of the basement together, he also said that Jaelyne Feetham saw only him when he
came up from the basement with the apples. She admitted that she did not raise this with
him to test the reliability of his statement.
Ms. Cowell was also cross examined with reference to an alleged inconsistency
occurring at the end of the June 16th interview when TM stated that he had spoken to Mel
and Gloria and they said that he "couldn't go to work", a comment which Gloria Wood
clarified as referring to his being tired after the police interview on the night of May 22nd
and to their telling him that he "didn)t have to go to work". Ms. Cowell admitted that she
did not pursue that difference with TM but maintained that she did not see this as
involving any contradiction either at the time of the interview or when she testified.
It is the position of the union that the failure of Ms. Cowell to pursue these various
inconsistencies has resulted in a situation in which TM's report of the alleged incident
appears to be more consistent that it really is. It is suggested that Ms. Cowell was aware
of how easily he could be confused and was concerned that by challenging him on the
inconsistencies she might disturb his train of thought. Thus, by not challenging him, she
permitted to tell essentially the same story, unchallenged) on 5 separate occasions) the
last of which was his testimony at arbitration by which time it was a well rehearsed story.
It is suggested that, had these various inconsistencies been pursued by Ms. Cowell in a
more aggressive manner, in which she was less solicitous of his "communication
problems'\ it may well have been that his story would have broken down on the core
elements of the incident as well.
43
Some of the "differences" that appear in TM's account cannot really be described
as "inconsistencies" that should call into question the general reliability of the story, For
example, I see no serious inconsistency between his saying on the one hand that he and
the grievor came up "together" and saying that he came up "after" the grievor. Unless it
is suggested that he came up a long time after the grievor (which it is not) I see nothing
unusual in his at the same time describing them as coming up one after the other and as
coming up Htogether". Nor am I troubled by his statement that Jaelyne saw only him
coming up the stairs. Obviously he was in no position to testifY as to what else }aelyne
may have seen and she was not called as a witness to testifY. Nor do I understand the
significance that the union seeks to attach to the alleged inconsistency that appears at the
end of the notes of the June 16th interview when TM says that he was told that he "could
not go to work" and Ms. Wood said that he "didn't have to go to work" the next day. To
me that is a distinction without a difference.
I am unable to accept the union's suggestion that Ms. Cowell saw it as important to
"get on record" the story about the earlier incident in or near the first aid room since TM
had already told that to the police and she wanted to avoid having to deal with an
argument down the road that TM had told an inconsistent story. That argument suggests
that, as early as June 4th, Ms. Cowell was already preparing for either an arbitration or a
criminal trial and trying to build a consistent evidentiary record. That involves a serious
allegation of bad faith and there is no evidence to support it. At this time she did not
know that criminal charges would be laid. I find it quite plausible that, given what she
knew of what TM had told the police, she would want to pursue his initial denial that this
had happened before palticularly when she is investigating an allegation against the
grievor and had been advised from Ms. Smith that TM said it had happened before. Were
that the case she would have serious concerns about it and would not allow his denial to
44
pass unquestioned. And when she did pursue it she satisfied herself that, while the earlier
incident did involve behaviour on the part ofTM that warranted having rvIs. Mallett check
to see whether or not there was any incident report (of which there was none), it did not
involve any suggestion that the grievor had inappropriately touched him or that he had
touched the grievor - which was the allegation on this occasion. Nor did she consider TM
to be lying when he said that it had not happened before since, as far as she was
concerned, he understood that she was asking whether or not he had been touched on the
penis before and his denial of that was truthful. This interpretation is borne out by the
notes of her June 4th interview. After she asked him whether this has ever happened
before he replied (eventually) that it had not - that "he asked me to touch him." It is clear
from the context that the "this" to which she is referring is his report to her that he had
been touched by the grievor. He denied that and went on to report on an incident in
which he was asked to touch the grievor, that is, the converse of what she had asked him.
As for why TM did not tell Mott, Bailey and Wood of this prior incident there is no
evidence that he was ever asked about any prior similar incidents.
I am somewhat troubled by the failure of Ms. Cowell to pursue the issue, raised for
the first time on June 16th, of the grievor allegedly telling TM that he could touch him if
he paid him IM5 cents. Given the context in which this incident occurred, viz,
inappropriate touching of others by TM - a matter which in and of itself warranted some
investigation M this is a very bizarre claim and ought to have set off some questions in Ms.
Cowell's mind as to whether TM was exaggerating what had occurred on the earlier
occasion. This aspect of that incident had not been mentioned to the police and did not
come up at the June 4th interview. Yet she did not pursue it at all with TM as it did not
enter her mind. One explanation for that might have been that she thought it was pure
fantasy - which in her mind had no bearing on the incident which she was now
45
investigating. However, that was not the case for apparently she did believe that
(although she did not think the grievor would have asked for a penny or a nickel) there
was some reference to money which, in TM's mind and speech would be expressed in
terms of "one cents to five cents". Given what she had just learned about TM's
propensity to engage in improper touching and given his expansion of an earlier report to
include some quite bizarre claims one might have expected Ms. Cowell to pursue the
matter more extensively than she did.
However, it also deserves noting that by this stage of her investigation, Ms. Cowell
had heard a generally consistent account of the May 22 incident - with no indication that
TM was embellishing the story as he went along. Leaving aside the confusion over the
day and the question of whether or not he had touched the grievor his story continued by
and large to hang together. In the circumstances she appears to have been prepared not to
allow the bizarre tale of the grievor asking for a penny or a nickel in exchange for
touching him to have affected her judgment as to the overall believability ofTM's story.
I turn to the 2 "inconsistencies" more central to the core of the allegation. As for
the question of which day the alleged incident occurred I am satisfied that this is nothing
more than a "mistake" on the part ofTM. It appears from the notes of both the June 4
and the June 16 interview that he said that he told Ms. Mott of the incident on the "same
day" as it occurred - which I have found not to be the case. When he was asked on June
16 by Ms. Cowell why he did not tell Ms. Mott until the "next day" he did not correct her
by, for example, repeating that it was the "same day", While the delay in his reporting of
the incident does raise an issue as to whether it occurred at all ~ and permits the grievor to
claim that he was retaliating for being threatened on the following day (after which he did
repOlt it) - it does not constitute any internal inconsistency in his evidence. Of somewhat
46
greater concern is Ms. Cowell's failure to pursue that question with him. By asking him
(on June 16) why he did not tell Ms. Mott until the following day she indicated that she
realized that there was some significance to that fact. Yet she appeared to be content with
an answer that was unresponsive. Her notes indicate that he said that he said, pointing to
his chest, that "it hurts", and she left the matter at that - ostensibly out of some concern
over the discomfort he was feeling at the time, although in her evidence she said that she
did not know why she did not pursue it.
The significance of that delay in reporting will be considered in due course, For
the moment it should be noted, however, that as of June 4 or June 16, she had no
knowledge of the fact that on the morning of May 22 the grievor had twice threatened TM
with the loss of his job. That information did not come forward until the arbitration
hearing. Had she known that her failure to press TM on the gap of a day would have been
more significant as she ought to have at least considered the possibility of a retaliatory
motive on his part and tested him on it. However, given what she knew at the time, the
delay in telling Ms. Mott, did not for her carry as much significance.
Finally, there is the matter ofTM's omitting to say anything to Ms. Mott about his
having touched the grievor. I do not consider this to be particularly telling. By virtue of
the fact that he reported the incident at all (even if it were a false report) he indicated that
he is aware that sexual touching in general is wrong. I do not find it at aU surprising that
he, like many others, would initially refrain from admitting to any personal responsibility
or involvement in such wrongdoing - while at the same time accusing others. That is
human nature. That he was having some difficulty with this part of the incident is
evidence from Ms, Mott's evidence that he appeared to "go into a shell" when he was
asked whether he had touched the grievor. However, as it becarne apparent that others
47
were treating this very seriously, and he was asked not only to repeat his story to Nls.
Mott, Mr. Bailey and Ms. Wood but also to demonstrate what happened by role playing-
and later to tell his story twice more to the senior administrator of the facility - his own
personal involvement in the incident could no longer be ignored. I note that in all of the
later accounts of the incident he showed considerable confidence in admitting to this
demonstrating no embarrassment or shame at all. The "role play" was essentially
repeated for Ms. Cowell at the June 16 interview and for me at the arbitration hearing,
However, I do not consider this difference in his relating that part of the incident to
involve a serious contradiction. I am satisfied that, once he got over the hurdle of
admitting his own involvement and discovering that it led to no sanctions on him, he felt
quite comfortable in repeating it to others.
It is suggested by the union that care should be taken not to attach too much
significance to the fact that TM's account of the incident remained consistent since, until
arbitration, his story was never really challenged as to its inconsistencies. While it is the
case that there were a number of places where Ms. Cowell might have pursued
inconsistencies or differences with TM, there is no doubt that she made it clear to him
that it was important that he tell the truth. In both the June 4th and June 16th interviews
she repeatedly put to him the possibility that the grievor would say that the incident did
not happen and that he was lying and he repeatedly assured her that he was not lying.
FUIther, it is suggested by the union that TM's inability to remember various
events during his testimony should not be characterized as innocent confusion arising
from his mental disability but rather as reflecting a realization on his part that he was
being caught out in a lie. In particular it was noted that, with respect to the Butler
incident, where the allegation bears some similarity to that which led to the grievor's
48
discharge, it makes no sense that he could remember telling !vir. Bailey that he was mad
at !vir. Butler for making him do his laundry and could remember that he told a lie about
J\1r. Butler but could not remember the actual lie. It was submitted in argument that, as he
knew that he was making the same kind of accusation here as he did in the Butler case, he
dare not admit to that particular lie for fear that he would be found out. It is submitted
that his claim that he could not remember telling Ms. Mott that he did not touch the
grievor is difficult to accept in view of the fact that he was able to remember things like
what happened at work on the Thursday following the alleged incident, what happened on
June 13 with respect to the tray incident and even the precise words used by Jaelyne
Feetham 5 years earlier. It is argued that, if the incident happened at all, he would have
remembered this part of it as it was an integral part of the incident in his later tellings.
However, once he realized that he had omitted a significant part of it in his first reporting
of the incident, he was driven to say that he could not "remember" what he told Ms. Mott,
since otherwise he would be caught in an inconsistency. I have dealt with this issue
above and need not repeat my conclusions.
The union also submits that, with respect to the question of motive, TM showed he
had a very selective memory. Although he remembered being spoken to by the grievor
about not touching other peoples butts and about how he could lose his job in the kitchen
if he continued ~ although falling short of actually saying he would 'write him up" ~ he
seemed unable to remember about making faces in the window or being told that he
would be "written up" for that. It is suggested that, with respect to the action of the
grievor that goes furthest in establishing motive, that is telling him that he would "write
him up", TM conveniently retreats into the safety of claiming that he does not remember,
The evidence is far [WIn conclusive with respect to the question of motive and the
49
suggestion that TM was responding to a threat. Although TM agreed in cross
examination that he was spoken to by the grievor and threatened with being "written up"
(a concept which he admitted he understood)~ there is no evidence as to how he reacted to
that threat. In particular he was not asked to confirm or deny the central thesis in the
grievor's case, viz, that the threat made him angry and that he retaliated against the
grievor by fabricating the incident. Nor~ apart from getting him to agree that the incident
occurred on Wednesday, and he did not report it until Thursday~ was he asked to explain
the delay in reporting. Nor~ apart from inference, is there anything in the grievor's
evidence that touches directly on this issue. Although he detailed the two occasions when
he had to admonish TM for his conduct and of taking action that could possibly
jeopardize his job in the future, he gave no evidence (either in chief or in cross) as to how
TM responded, if at all, to these admonitions.
With respect to the claim that TM was being "selective" in his inability to
remember portions of prior events during the giving of his testimony I seriously doubt his
ability to recognize the potential harm that would result from some admissions and not
others. Rather, I consider this aspect of his evidence to reflect nothing more than a
genuine uncertainty about the matters on which he was being questioned. What is
important is whether or not he exhibits that same uncertainty with respect to the central
allegation and, in that respect, I have found that he did not.
Finally, there are a number of respects in which it is simply not likely that a
person ofTM's mental capacity would be capable of constructing the detailed lie which
he did~ in retaliation at what happened to him on the Thursday morning. What is
suggested in the grievor's defence is that, sometime shortly after he was threatened with
being "written up" on May 22, he thought about how he could get back at the grievor,
50
recalled that there was an opportunity when they were alone the day before and decided
to make use of that as the occasion when the improper touching occurred. While I would
not doubt his capacity to select this as the occasion (as it was contemporaneous in time)
or in his description of precisely what happened or in his saying that the grievor told him
not to tell anyone - all of which would be quite normal, there are a number of other
aspects to the incident which cannot, in my opinion, be reasonably considered as part of a
carefully planned lie - at least in the mind of this particular complainant. He anticipates
that someone would ask him if there was any sexual arousal or ejaculation and he
responds that he had a small erection but could not recall whether the grievor did. He
anticipates that the incident would trouble him so much that he would get a pain in his
chest and, further, that ifhe tells someone about it he will feel better. He anticipates that
he might not be believed so he contrives to appear Hantsy and anxious" in order that
Cheryl Mott will pay attention to him and go with him on a walk where he can tell his
story. In order to convince her that he had a serious problem at work he begins the
conversation by telling her that he does not want to go to work anymore, something
which he knows will shock her since he values his job highly.
If his story is true all of these elements fall naturally into a logical and consistent
order. The physical and emotional reactions which he described are precisely what one
would expect. If however, one hypothesizes that the incident did not occur and his entire
account is a lie, it is necessary to conclude that in the short time that he had available to
concoct the lie TM, viz, from noon on May 22 when he is "threatened" the second time
until he got home in mid~aftemoon, he thought through all of these reactions and built
them into his story. I find that to be highly improbable. Indeed, ifTM were a person
without a disa bility, his complete and detailed account of the reactions that followed the
incident would lend weight to its credibility. Given his limitations and his inability to
51
craft such a detailed and believable sequence of reactions I find it all the more credible.
As noted the grievor denies the allegation in its entirety. However) there are a
number of respects in which I find the grievor's evidence to lack credibility. My
principal concern has to do with the failure of the grievor to offer any explanation
consistent with his innocence that might explain the serious allegations that had been
made against him. At his meeting with Ms. Cowell on June 13 he was asked about the
alleged incident and, apart from a general denial) replied that on the advice of his lawyer
he could not comment. On June 16 Ms. CoweU wrote advising that the employer would
conduct its investigation on June 16 and 17) requested an opportunity to meet with him
again and scheduled a meeting for June 19, 1997, At that meeting Ms. CoweJl again
attempted to get the grievor)s reaction to the specifics of the allegation and was advised
that) as he was under criminal charges, he could not comment on anything related to the
allegation. Accordingly) based on her investigation and her conclusion that TM's account
was a credible one, she took the decision to discharge him.
At the arbitration the grievor testified as to events that would suggest that TM had
retaliated against him for the threat of writing him up earlier that day. Indeed, he testified
as to having to speak to TM on a number of different occasions earlier that week about
the inappropriateness of bum patting. I am unable to understand how it is that the grievor
could not have advanced this explanation for TM's aUegations when he met with Ms.
Cowell. In particular) I note that at the June 13 meeting, when Ms. Cowell asked him
about how he had handled TM)s touching others bums (a reference to what TM had told
her about an occasion in or near the first aid room) he gave no indication that, not only
had that happened on the very day on which the report was made (and some 2-3 times
earlier that same week) but also that he had to admonish him for it. In other words) Ms.
52
Cowell referred to an incident which the grievor now relies on as constituting a
cornerstone of his claim that TN! had a motivation to lie, and said nothing about it. I
would have expected that, if the grievor genuinely believed that TIv! had lied in retaliation
for any threat, Ms. Cowell's question would have triggered that possibility in his mind at
the time. Similarly, at the June 19th meeting, when asked by Ms. Cowell ifhe could give
him "any reasons why this person would fabricate such a story'" again declined to
answer.
Counsel for the employer submitted in argument that the failure ofthe grievor to
provide Ms. Cowell with a satisfactory explanation for the allegations constituted just
cause for discharge in and of itself. In that regard she relied on a number of cases. (Re:
Canadian National Railway and CAW, Local 100 (1993), 33 LAC (4th) 17 (M.
Picher); Re: Canadian Pacific Railway and United Transportation Union (1987), 31
LAC (4th) 179, (M. Picher);Re: Canada Post Corporation and Association of Postal
Officials of Canada (1996), 56 LAC (4th) 353 (Chertkow); Re: Rexall Drug Co. Ltd.
and ICW, Local 279 (1967), 18 LAC 342 (Weatherill). These cases establish that, where
a prima facie case of employment misconduct has been made out there is an obligation on
an employee to give a credible explanation for his conduct. Further, it will not suffice
that the employee's refusal or failure to provide that explanation is as a result of acting on
legal advice (See Re: Canada Post Corp and CUPW, Randy York (Hinnegan,
unreported, referred to in Canada Post ,supra, at p. 367) citing with approval Re:
Toronto East General Hospital and SEIU (1975) 9 LAC (2d) 311 (Beatty).) Arbitrator
Hinnegan states as follows:
.....no arbitral authority was provided suggesting any basis for the proposition that
a criminal lawyer's advice to remain silent pending a criminal trial excuses or
relieves an employee charged with a serious ernployment offence from providing
an adequate explanation for his actions to his employer....the employment situation
is separate frorn the crirninal charge. Not only is the standard of proof and the
53
forum having jurisdiction different, so is the requirement to provide an explanation
in such circumstances as these.
Arbitrator Hinnegan concludes that to hold otherwise would place an employer who had
reliable evidence of employee misconduct in the position where it would be unable to
take any further action because of advice from the employee's lawyer not to discuss the
events due to a criminal charge arising from the same facts.
With respect, I endorse these views. However, I do not consider any of these cases
going as far as counsel for the employer herein argues. They do not foreclose the
possibility that, at arbitration, the employee could convince the arbitrator that,
notwithstanding his earlier silence, he did have a convincing and credible explanation for
his conduct. However, that silence would come at a price. First, it is doubtful that in the
circumstances an arbitrator so persuaded would direct the employer to pay compensation
for any losses suffered given that the employee, by his silence, led the employer to act.
Secondly, the employee takes a risk that the fact of his refusal, albeit on the advice of
legal counsel, will result in an adverse inference being drawn as to his credibility
particularly where there appears to be no good reason for not cooperating with the
employer on issues which pose no potential risk to his criminal liability .
As noted, in this case, the grievor also was acting pursuant to advice from his legal
counsel. I am not aware of precisely what those instructions were but it appears that, at
best, he interpreted them as going so far as to prevent him from even speaking of events
that would excuse rather than incriminate him. At worst his actions are consistent with a
strategy on his part to use his lawyer's instmctions as a shield behind which he could hide
until he learned more of the employer's case. In this regard it may be noted that no issue
ofTM's credibility or truthfulness was raised until a later grievance meeting.
54
I understand the grievor's concern at the prospects that Ms. Cowell and others
might be subpoenaed to testify at the criminal trial as to what he told her. However, I fail
to see how his ability to defend the criminal charges would in any way be compromised
by his offering Ms. Cowell something that would indicate that TM had a motive to lie. I
accept that there is no dispute that he did in fact speak to TM twice on the day that the
incident was reported. However, his failure to advert to these events, and the ones earlier
in the week, until several months later cast doubt on their seriousness at the time.
Moreover, by saying nothing to Ms. Cowell she was given no reason for looking more
critically at TM's account.
Further, I note that, contrary to the grievor's own suggestions which he advanced
in h'is paper in 1995 to the Employer Employee Relations Committee, that employees
should document all incidents involving clients and keep accurate counselling records, no
notation was made of any ofthese incidents. While I accept that, given his May 23rd
suspension and later discharge, he may not have had an opportunity to document the May
22nd events, he certainly had time to document the earlier ones in that week. That
suggests either that they did not occur or, if they did, they were not so serious as to
warrant the drawing of any inferences one way or the other.
There are also several respects in which the grievor's own account of the events of
May 22 do not stand up to scrutiny. First, there are questions surrounding his need to go
the basement with TM at all. It was the end of the work day, lunch had been prepared
and served. What pressing need was there to go to the basement at that time to get
apples? Although the grievor testified that this was the first opportunity he had that day
to go down to the basement no satisfactory answer was provided for why this job could
not have waited until nlorning. In this connection his inability to recall where TM had
55
put the apples when he came back upstairs - whether they went to the kitchen or
elsewhere- suggests that there was no urgency to have the apples at the time.
Why was it necessary to take TM with him? The grievor testified that TM, along
with others who worked in the kitchen, was a wanderer and he wanted to keep control
over him. Accordingly, on May 22 he sought volunteers to go with him to the basement,
selected TM and then gave instructions to the others as to what to do during his absence.
Yet, there are a number of respects in which that claim is puzzling, Each day, when the
grievor attends to the cash at lunch, he has to leave TM and others unsupervised in the
kitchen for between 15-20 minutes during which time TM, among others, could wander
away . Yet, on this day, he took TM to the basement with him on a jo b that would last, at
most, for 5 minutes. Further, notwithstanding his concern about TM wandering, when he
did wander from the kitchen and was later discovered in the hall outside the office, the
grievor did not instruct him to wait there while he retrieved the key but instead directed
him to wait for him at the janitor's room - a direction which belies somewhat his
expressed concern about TM wandering around. Similarly, after TM had finished getting
the apples, the grievor permitted him to go back upstairs while he "secured the door",
which involves nothing more than pulling it shut so that it locks automatically. Again
there appears little concern here about TM wandering around. Finally, I note that while
they were downstairs the grievor stood by and observed TM sorting good apples from bad
- offering no assistance himself, Had he helped out he would presumably have been able
to complete the job in less than 5 minutes and return upstairs and make sure that the
others were not wandering around. His apparent lack of concern over the time taken to
get the apples belies his concern about the tendency of others to wander.
Why does he send AB upstairs? The only explanation given by the grievor was
56
that AB was a perfectionist and would, until he was told that his job was finished.
continue mopping the floor even though it was no longer necessary. However, it is
acknowledged that AB worked under the supervision of someone else who, presumably
instructed him to mop floors in the basement in the first place and who, presumably,
would be primarily responsible for directing him as to where to go when he was finished.
I find it odd that the grievor would (in the normal course of his daily duties and leaving
aside any other improper motive) simply instruct AB, who was described as being quite
severely disabled, to leave and go back upstairs without any further directions.
It is submitted by the union that, if the grievor went to the basement with TM with
the intention of assaulting him, he would not have carried on with that plan upon seeing
AB but simply called it off. It is also suggested that, if the grievor was intent on denying
an incident that actually occurred, he would have been wiser to have denied ever being in
the basement at all; that insofar as he admitted that he had taken other clients including
TM to the basement on earlier occasions and on this occasion, his evidence should be
seen as credible. However, it would have been quite risky for him to deny being in the
basement at all as AB, however limited he may in his abilities, may have at least been
able to corroborate TIvI's evidence that they were in the basement together. That would
completely destroy the grievor's credibility, Thus, he had to admit at least to the fact of
being in the basement with TM.
It is also suggested that, if the grievor did actually assault TM on Wednesday, May
22, he would be foolhardy in the extreme to have, in essence, added insult to injury by
threatening him with job less on the following day. Why, it is asked, would the grievor,
having realized that there had not yet been any report of his alleged assault of the night
before, take the risk of provoking TM into action by threatening him with being "written
57
up". In most discharge cases a question which naturally arises is why) given the
consequences of certain actions, would a prudent employee engage in the risky behaviour
that resulted in his termination. It is no real argument to say that the grievor could not
have done something because it would have been foolhardy to do so. In any event, the
case can be made that one who is prepared to exercise "control') over another to the extent
that he would exploit the victim's vulnerability and commit a sexual assault upon his
person might just as easily feel no qualms at all about continuing to exert that authority
and control over him the next day. In essence he would be sending the victim the
message that he was stilI in control and had the power to take away something that was
valued. In the context of this case the grievor's conduct the next day could be seen as
constituting a reinforcement of what he told TM the night before, viz, that he did not want
him to tell anyone what had happened between them. Foolhardy though that may be it is
not conduct that is inconsistent with the primary allegation.
I turn finally to the matter of the delay on the part ofTM in reporting the incident
to Cheryl Mort and others. On a review of his evidence respecting the incident I am not
persuaded that this diminishes the credibility of his claim. He had been counselled earlier
that week, perhaps 2 or 3 times if the grievor's evidence is to be accepted, about touching
others on the butt or bum; he knew that this was inappropriate behaviour and yet he had
just done that very thing to none other than the man who had been counselling him. This
had to be confusing to him. Secondly, he had been told by the grievor, someone who he
knew could see that he lose his job and that he was now frightened of) not to tell anyone
about it. When asked by Ms. Cowell why he did not tell Cheryl Mort until the next day
he did not answer her but said that he was "hurtingH gesturing to his chest; a reaction that
was confirmed by Ms. Mott. Although r have no evidence one way or the other as to any
irregular or unusual behaviour on his part on the night of Wednesday, May 22) I am
58
satisfied that he returned from work not entirely sure what to do about what had happened
to him. When he went to work the following day he immediately got into trouble and was
twice threatened by the grievor with loss of his job. Whether it was those threats or
something else that prompted him to tell Cheryl Mott what had happened the day before I
do not know. In any event he did tell her and events progressed from there. I do not
know what the "hurting" in his chest was meant to signify - although I am prepared to
accept that it existed. However, I do not accept the union's suggestion that the "hurting"
that he was feeling came from the realization that he was telling Cheryl Mott a lie about
the grievor. If that was the case I am at a loss to understand how he felt better after he
told the lie. Nor does it explain the fact that he never appeared to suffer this "hurting" in
the chest at any of the later tellings. Having regard to all of the circumstances I do not
consider his delay in reporting the incident to indicate that it did not happen. In my view
it happened and, for the reasons indicated, it took him a day report it.
Before concluding I wish to address one other matter. Ms. Cowell stated that one
aspect of the grievor's conduct which influenced her in her decision to terminate his
employment was his response to the phone call placed to him early in the morning of May
23 by Ms. Roberts. Specifically, both she and Ms. Roberts attached some significance to
the fact that, when the grievor was told that he was not to report for work as there are
"some allegations" against you, merely said "Oh, who" and did not ask what the
allegations were. It was their view that this showed that he must have been aware of the
substance of the allegations.
It was the evidence of the grievor that he did not know whether the allegations had
come from a co-worker, a client or a supervisor and simply wanted to know the source of
the complaint. It was thc position of thc union in argumcnt that, if any inference was
59
drawn from this conversation, the grievor was caught whatever he said; that if he had said
"what allegations~' as Ms. Roberts and Ms, Cowell expected he should say, they would
have argued that he must therefore have known who it was that made the allegations.
Although~ I do not rely heavily on this argument, I do find the grievor's response
to be somewhat unusual. Firstly, I note that Ms. Roberts did not specify the kind of
allegation that had been made against him, viz, whether it was an allegation of sexual
misconduct or something else. All she said was that "some allegations" had been made.
In view of the generality of the claim I would have expected that the most natural
response would have been to try to nail down the nature of the allegations. Moreover~ if
he was innocent of the claim, I would have expected his reaction to being told that he
could not come to work because the police were investigation certain allegations against
him to be one of shock and perhaps outrage - not what Ms. Roberts described as a very
quiet 'Oh- Okay".
Again, while none of this could be conclusive in itself, it does lend overall support
for the conclusion that the allegations had some basis in fact.
In conclusion, I am satisfied that the employer has established the events alleged.
Accordingly~ as no issue is taken with the propriety of the penalty should it be found that
the grievor did commit the assault as alleged, the discharge is upheld and the grievance
dismissed.
Dated at LONDON, Ont. this 1-h"flay of
j~
tr--/l \
Gregory Brandt, Sole Arbitrator
60
, 1998