Loading...
HomeMy WebLinkAbout1978-0199.Nicholls.79-08-28199178 14/79 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE aARGAINING ACT Between: Mr. J. Nicholls Before: For the Grievor:~ For the Employer: THE GRIEVANCE SETTLEMENT BOARD And The Crown in Right of Ontario Ministry of Housing Professor M. Eberts Mr. V. Harris Mr. R. Cochrane Vice-Chairman Member Member Mr. P. O'Keeffe Ontario Director (CUPE) Ontario Regional Office 15 Gervais Drive Suite 503 Don Mills, Ontario M3C 1Ya Mr. A. Tarasuk Central Ontario Industrial Relations Institute Suite 200, 85 Richmond Street W. Toronto, Ontario M5H 2C9 Hearings: February 16th, 1979 March 9th, 1979 March 31st, 1979 Suite 2100, HO Dundas St. W. Toronto, Ontario Reasons -2- Mr. John Nicholls, the grievor, has been employed as an on-site caretaker in the Ministry since 1970. Since 1972, he has worked.at the Ontario Housing Corporation building at 3725 Dundas Street West, Toronto. He lives in an apartment there with his wife. In October 1978, Mrs. Katalin Kramer and her daughter Mary-Ann lived in an apartment at 3735 Dundas St. W. They had resided there for some five or six years before that. Mrs. Kramer's building, also owned by the Ontario Housing Corporation, is adjacent to Mr. Nicholls'. Mary- Ann Kramer was ten years old in October 1978, and turned eleven in December of that year. The Ministry of Housing suspended and later discharged Mr. Nicholls because he allegedly assaulted Mary-Ann Kramer on October.10, 1978. A number of preliminary issues arise before our consideration of the. evidence offered on the merits of this grievance. Preliminary Issue: Grounds for Dismissal The Ministry's letter of suspension (ex.3) gives one of the two grounds of suspension as: Your conduct on October 10, 1978 relating to alleged criminal activities at which time it is reported you assaulted the daughter of a tenant of the OntariO Housing COrpOratiOn. The letter of discharge (ex.7) refers to "your personal conduct on and around October 10, 1978" and states that in reaching the decision to terminate "the most serious consideration has been given to the following details." The three items which follow are -3- .:.,. ..I said to be given "without restricting the generality of the following", and the first item is: That you have been observed and have engaged in improper conduct with respect to the child of a tenant in such a manner that is totally incon- sistent with your position as On-Site caretaker, and which common sense should have prevented. Furthermore you presented the child with money for reasons which have not been made clear. This was the only one of the three items in the discharge letter which referred to any events between Mr. Nicholls and the girl. The Ministry called evidence at the hearing concerning the incident of October 10. Its representative also introduced, by way of the examination- in-chief of Mary-Ann Kramer, allegations of previous incidents of improper conduct by Mr. Nicholls toward the girl. At first, the Ministry argued that it was entitled to rely on these past incidents as grounds for suspension and discharge. It contended that the exhibits quoted above gave Mr. Nicholls sufficient notice that these other matters might be relied on. Mr. Nicholls' representative argued that the Ministry had not given enough notice to enable it to use these incidents as grounds in and of themselves, but he did concede that the events, if true, would be relevant to what was supposed to have happened on October 10, 1978. We do not regard any alleged events prior to October 10 as providing, in and of themselves, proper grounds for suspension or discharge. The exhibits do not, in our view, give enough notice that the Ministry intended to rely on them. We will take any such matters into account only for what light, if any, they can~shed on the alleged events of October 10. We granted, at his request, an -4- adjournment of our proceedings for some weeks, to enable Mr. Nicholls' representative to get witnesses and evidence for Mr. Nicholls concern- ing these supposed prior happenings: Preliminary Issue: Conduct of Investigation On October 18, 1978 the Senior Maintenance Supervisor for Mr. Nicholls' area, Mr. Baker, wrote to the grievor noting that a charge of assault had been laid against him and asking that the grievor provide the Corporation with "a statement re this charge" (ex.l), as it could be in violation of his conditions of employment. The same day, Mr. Nicholls, by~letter, advised the Corporation that he had appointed a solicitor who would talk-on his behalf and refused to discuss the matter further (ex.2). By this time, he had received the summons for an assault charge laid by Mrs. Kramer after the events of October 10. The letter of suspension sent on October 24 (ex.3) advised that "following a preliminary investigation" Mr. Nicholls was suspended as a result of two things. The first was the incident of October 10; the second was "Your failure to provide any information with respect to this matter". The letter of suspension was signed by C. E. Sweet, District Housing Manager for Mr. Nicholls' area; Mr. Sweet was, however, on vacation from the weekend of October 8 until October 23 and had no first-hand knowledge of events. The ,letter had been drafted by Ministry officials who were investigating the matter and approved by Bruce Homer, Manager of Staff Relations. Despite his earlier refusal to give a statement, Mr. Nicholls gave Mr. Sweet his version of events on October 24, when he picked -5- up his letter of suspension. That account, according to Mr. Sweet's testimony regarding it, was substantially the same as the one Mr. Nicholls gave this Board. Mr. Nicholls had apparently sought out Mr. . Sweet on October 11 to tell him his side of the story, but had not proceeded further when told he was on vacation. His representative suggested that this was because Mr. Sweet was the only official whom Mr. Nicholls knew very well. Mr. Sweet did not pass on Mr. Nicholls‘ story to anyone above him in the management structure. The Ministry did not deal with Mr. Nicholls' lawyer on the grounds that the employee's bargaining agent was the proper person for it to be dealing with regarding employment matters. Mr. Nicholls did not, apparently, have union representation at this stage, as he did not seek it out. On October 27, his lawyer wrote protesting the suspension on the'ground that it was a denial of his right against self-incrimination. Apart from his 'discussion with Mr. Sweet, Mr. Nicholls did not say anythiig else to anyone in the Ministry until the time of his trial on the assault charge. On December 7, 1978, the Ministry sent him a letter of discharge (ex.7). The letter stated that the Ministry had "concluded its investigation". The Ministry stated at the hearing that the main witnesses consulted in this investigation were Mrs. Kramer and her daughter; efforts to track down other possible witnesses had produced no one. There was no statement from the Ministry as to why it felt that discharge, rather than a continuation of the suspension without pay, was appropriate at that time. The letter of dismissal included the following as one of the -6- three matters to which "the most serious consideration" had been given: Furthermore, since you refused to provide an explanation relating to this incident as requested by officials of the Corporation, the Corporation has no further alternative but to remove you from employment. This history raises two issues. The Ministry did not press Mr. Nicholls' refusal to speak up as a ground for d~ismissal, although in its November 20, 1978 letter to his representative (ex.lla) it had said: . ..by refusing to discuss this incident he placed the Corporation in the position of having to deal with a potentially difficult and serious situation in the absence of essential details and information. Such conduct by itself could be sufficient to warrant suspension from employment. We have not proceeded in our deliberations on the basis that Nicholls' refusal to speak up was a separate ground of discharge. We thus do not purport.to.~assess whether it could by itself support the Ministry's action. On the other hand, Mr. Nicholls' representative seemed to be asserting that the Ministry had denied Mr. Nicholls natural justice by suspending and dismissing him in the absence of his side of the story. He seemed to be saying that the Ministry should have taken no action against him at all until the criminal matter had been disposed of. Yet in argument, he also stated that "John was wrong in not, giving an explanation from the word go" to Ministry officials. The Ministry's position was that it had the welfare of the other tenants to worry about, and the public perception of the way it took its responsibility for tenant safety; in view of the seriousness of the allegations, it did not feel it could leave -7- Mr. Nicholls in his position. We agree with this. We do query the Ministry's judgment in discharging.Mr. Nicholls on apparently no more evidence than was available to support the suspension. Yet when considering what recourse if any Mr. Nicholls might have on this account we conclude that in the circumstances there is none. He was given ample opportunity at.every stage of the grievance process to tell the exculpatory story he did tell Mr. Sweet; as this hearing took place after the court hearing, at a time when Mr. Nicholls' objection to speaking out did not obtain, this board has had the benefit of his version of events in coming to its decision. To some extent, the earlier procedural defect, if there was one, has been remedied by these later opportunities to put his case. To give Mr. Nicholls the remedy he wants - reinstatement - if that is not indicated on the facts, merely to remedy a possible procedural defect, would not be appropriate. Preliminary Issue: Estoppel Mr. Nicholls' representative argued that the Ministry had, in effect, promised Mr. Nicholls that he would be reinstated if he were acquitted of his assault charge. This argument is based largely on the Corporation's letter to Mr. O'Keeffe of November 20, 1978 (ex.lla). There an official had written: "At the Step 4 hearing I pointed out that should it occur that Mr. Nicholls was subsequently exonerated with respect to his conduct he would, of course, be reinstated." This letter does not explicitly mention acquittal. The letter of suspension (ex.3) had stated: I -8- However, the Corporation cannot conclude. a proper and thorough investigation until all the facts are made known. This cannot come about until the charges with respect to your alleged criminal activities have been disposed of. Mr. Homer testified that this referred to the Ministry's inability to get Mr. Nicholls' side of the story until he testified in court, and was not intended to convey any promise. In his own testimony, Mr. Nicholls admitted that no one in authority had ever'explicitly told him, in certain terms, that he would be reinstated upon his acquittal. He said that the only remark in this connection, besides the letter above, was when Mrs. Chin, the Senior Area Supervisor, observed offhandedly that if he did "get away with" this case and get reinstatement, he'probably wouldn't be working in the same building. He also stated that the main basis of his expectation was his own belief that "once you're clear, you're clear". It appears from the evidence that there never was any explicit undertaking by the Ministry to reinstate Mr. Nicholls upon acquittal-~ The Ministry's point that lack of suitability for this position is determined on different standards'than guilt in a criminal trial is in keeping with its position on this issue. The Incident of October 10 *The grievor submitted that the allegations against him were of such a nature that the ordinary burden of proof in civil matters was in- sufficient. He contended that the board should apply the principle that -9- the more serious the alleged misconduct, the more stringent the standard of' proof that is required to be satisfied , although he stopped short of asking that the criminal standard of proof beyond a reasonable doubt be applied. A number of cases suggest that in the case of serious misconduct, the standard to be met by the employer be one of "clear evidence" or "reasonable probability". We think there is merit in this suggestion, but we would also point out that this case is one in which the entire outcome depends on the credibility of witnesses, since the evidence for the Ministry and that for Mr. Nicholls are almost totally at odds,. Mr. Nicholls testified that he was working in the Kramers' building after supper on October 10, 1978, to help out the regular caretaker who was absent that evening. He was asked by Mike Jones, a youth of sixteen who lives in the Kramers' building, to lock up the apartment of a friend of his. This apartment is on the fifth floor, the Kramers' apartment is on the third, and the request from Jones to Mr. Nicholls was made in the lobby area of the ground floor. According to Mr. Nicholls and Jones, Mary-AnnKramer was in the' lobby when the request to secure the apartment was made. She rode up in the elevator with the two men, getting off at the third floor while they continued to five. After Mr. Nicholls had done the locking up, they saw Mary-Ann holding open the elevator doors on the fifth floor; all three rode down together to the main floor. Then, according to both men, Mike Jones went from the elevator to the front lobby area, leaving Mary-Ann and Mr. Nicholls together in the hallway in front of,the elevators. Mike Jones, according to his account, remained in the lobby alternately - 10 -, scanning a bulletin board there and.peeking back into the hallway. He testified he was not in a position to see everything that.went on in the hallway by the elevators, but could hear it all and saw some of it. Mr. Nicholls said that his back was to the lobby and so he did not see Mike Jones in the bulletin board area; nor did he hear any noises to indicate that after Jones had left him he had gone out by way of the automatic- lock glass door between the bulletin board area and the outside. According to Mary-Ann, she had gone to the fifth floor of the apartment building by herself to call on her friend Gregory. She observed Mr. Nicholls and Mike Jones go down from the fifth floor by elevator. She descended by way of the stairs, not having found her friend at home. The stairs come out at one end of the main floor hallway, and she was about halfway down the hall in the direction of the elevators when she saw Mike Jones leave Mr. Nicholls and go into the lobby. Then she testified she heard the sort of slam made by an automatic-lock apartment door, like the one in the lobby. Not observing anyone come in, she thought Mike Jones had left. Accounts also differ about what happened next in the chain of events. Mary-Ann stated that Mr. Nicholls, still in front of the elevators, called her over to him as she was going down the hall. She says he started kissing her on the mouth, and pressing her with his body back against the wall opposite the elevator doors. She says he put his tongue in her mouth, but did.notrecall where his hands were. Her own hands, she said, were down by her sides. After some seconds of this, she said she noticed someone coming along the hallway, but did not realize for a moment who it - 11 - was. At about that time, Mr. Nicholls broke away and put some money -- $1.50'-- into her hands,, telling her to keep it. The person coming up proved to be her mother. Mrs. Kramer testified that she went to look for Mary-Ann at 7 p.m., the time s~he had told~her to come in from playing outdoors. She walked down the stairs from the third fl,oor, her apartment being immediately -~ adjace.nt to the stairway. Upon coming out of the stairwell at the end of the main floor hall, she said, she saw Mary-Ann and Mr. Nicholls in the hall near the lobby. She stated that Mary-Ann was pressed with her back to the wall, and Mr. Nicholls was kissing her on the lips. His body was moving and there was no space between the two of them. Her daughter's hands were down. She says she froze momentarily, and then started rapidly down the hall. She thought it took her about five seconds to get down the hall, and the kissing had stopped by that time. Mr. Nicholls saw her when she was part way down the hall and started into the lobby. Mrs. Kramer shouted at that point. In the ensuing conversation, she asked how Mr. Nicholls could take advantage of a ten-year-old child; after stating that she was twelve, Mr. Nicholls reportedly said that he was giving money to the other kids and kissing them too. We should note at this point -- although Mrs. Kramer did not say so -- that this may well have been a reference to Mr. Nicholls' practice of rewarding with change children who ran errands for him at the variety store, and exchanging, as he said, "fatherly kisses" and "pecks" with them. Mrs. Kramer threatened him with the police, and called them from her apartment shortly after. Going up in the elevator with Mary-Ann, the girl showed her a one dollar bill and 1-; ., .~. ‘;‘.; ~.. 2~. - 12 - ‘ some change and, said Mrs. Kramer, told her that Mr. Nicholls had just shoved them into her hand. ' Mrs. Kramer's testimony also dealt with matters occurring before October 10. She said that shortly before that date, she had noticed Mary-Ann in possession of amounts of money her mother had not given her. At first, she stated, the amounts were small change, then she noticed larger amounts, culminating in $2 on Friday October 7. Mary-Ann told her that the money had come from doing errands for Mr. Nicholls and that "every kid" got money for errands. Mary-Ann told the board she had been doing errands for Mr. Nicholls since that Sumner, just before returning to school, and reiterated to us that many children did the same. Mrs. Kramer said that she believed the girl about the money but was unhappy about her taking it because she got a good allowance and told her not to take any more. On Thanksgiving Day, October 9, both Mrs. Kramer and her aunt repeated the instruction not to take any money, and after talking the situation over with her aunt, Mrs. Kramer said she resolved to ask Mr. Nicholls not to give her any more money. She had not done so by the next day. Mary-Ann told the board that on a few of the occasions when she had done errands for Mr. Nicholls she had gone into his apartment and there he had kissed her improperly and put his hands in her bra. Once he had tried to go up her skirt. Mrs. Kramer testified that she had been unaware of these allegations until the night of October 10, when Mary-Ann told them to the police. She told the board that Mary-Ann told her that Mr. Nicholls had - 13 - told her not to tell anyone about them. Mr. Nicholls flatly denied any impropriety before October 10, stating that the girl had come into his apartment only once before, when his grandson was there and that he did not encourage the children to come into his place. Mr. Nicholls and Mike Jones also give a different account from the Kramers' of the evening of October 10. Jones stated that he heard Mary-Ann ask Mr. Nicholls if he would lend her a dollar. When Mr. Nicholls refused, she said she would be in trouble if he didn't, and Mr. Nicholls relented. Although Mike Jones said he could not see Mr. Nicholls' face from where he was standing, he said he did see him (from the back) reach into his pocket and pull out some paper money. Then he said he saw Mary-Ann hand the money back to Mr. Nicholls and ask him if he could change it. He did not say where Mary-Ann was at this time. He saw Mr. Nicholls reach.into his pocket and heard some change. He saw Mr. Nicholls hand the girl some change, and then heard him lecturing her that she should not be borrowing money. This account is substantially the same as Mr. Nicholls'. He said he gave the girl a dollar bill in response to her request and plea,;and then a further 5Oc in change. He stated that he felt he "owed" her the 5Oc because she had received a very small amount of change from's recent errand purchasing cigarettes for him and he had promised to make it up to her. But, he said, he did give the girl 'a~'lecture about not borrowing money, during which time the girl's back was to the wall and her head hanging down. Mike Jones stated that he didn't see the girl all the time the lecture was going - 14 - on, but that once when he had caught a glimpse of her her head was downcast. Mr. Nicholls stated in direct examination that he had given the girl a "peck" on the head after he had lectured her. Early in his cross- examination, he repeated that he had kissed the girl. At that stage the Ministry representative sought,to cross-examine on a prior inconsistent statement which Mr. Nicholls had made at his trial on the assault charge, in accordance with section 22 of The Evidence Act, R.S.O. 1970, c. 251. An adjournment was granted while a transcript of Mr. Nicholls' testimony was secured. On resumption of the hearing,.Mr. Tarasuk asked Mr. Nicholls if he had kissed the girl and this time Mr. Nicholls stated that he had been attempting to give her a peck or kiss her in a fatherly manner and that it was possible that his lips had touched her. Mr. Tarasuk then asked Mr. Nicholls if he remembered giving, in answer to questions at his trial, statements to the effect that he had not in fact kissed the girl at all (for example, those on pp. 8 and'pp. 16 of the transcript, Ex.14). Mr. Nicholls attempted to explain the discrepancy by saying that at his trial he had thought he was being asked if he had given the girl an "indecent" kiss. There is no such connotation in the questions he said he remembered being asked. He also stated that what he had initially said in examination and cross-examination before this board was that it was quite possible that his lips had touched her. Mr. Nicholls and Mike Jones agreed in most respects in their descriptions of the.entrance upon the scene~of Mrs. Kramer. Both testified - 15 - that Mary-Ann said "Here's my mum". Both testified that Mrs. Kramer called out "I saw that" at least twice. Mr. Nicholls said that she had first called out from the very end of the hall, near the stairwell, where he saw herstanding with her arms crossed. Mike Jones said he heard her say the words when she was about halfway down the hall, a position he ascertained by peeking around the corner of the doorway. She was, according to him,' moving quickly. Both men said that Mary-Ann and Mr. Nicholls.started down the hall towards Mrs. Kramer when she called out. Both Mr. Nicholls and Mike Jones state that Mr. Nicholls responded to Mrs. Kramer along the lines of "Madam you saw nothing; you may have seen me giving your child some money and a little peck on the head, that's all." Both of them state that Mrs. Kramer said, with reference to Mary-Ann, that all she ever got out of the child was "lies, lies, lies." Both tell of Mrs. Kramer's threat to involve the police. Mike Jones' testimony indicated that he did not confront Mrs. Kramer, but stayed back in the lobby until she and the child had gone upstairs. Then he emerged and asked Mr. Nicholls if he was in trouble and told him he had heard or seen what had happened. Mike Jones said that Mr. Nicholls had shrugged and said "maybe" in answer to his question. At that point, Jones, said, he faded from the scene. The two men differ on 'how it was that Mr. Nicholls elicited Jones' testimony on his behalf. Jones says that Mr. Nicholls told Jones' brother that he wanted to see him, and then Mike went to see Mr. Nicholls, about :. ,,. .; - 16 - two weeks after the incident. Mr. Nicholls says he told his lawyer about Jones the day after the incident, and testifies that the two men just bumped into one another about a week later. Credibility of Witnesses The contradictions between the evidence led by the Ministry and that led by.the grievor are numerous. One aspect relates to the differing versions of what happened before October 10, and the alleged improper behaviour of Mr. Nicholls toward Mary-Ann. Earlier we stated we regarded this as useful in shedding light on events of October 10. With no previous improper behaviour, it is perhaps not as likely that a person would make advances to a child in an apartment hallway. In connection with these incidents, there is a straight contradiction between the testimony of Mary-Ann Kramer and - John Nicholls, although both of them - and other witnesses besides - agree about Nicholls' practice of having a number of neighbourhood children do ~errands for him, and bestowing, in addition to generous amounts of change, little kisses or 'pecks' on them. Mr. Nicholls' representative objected to our swearing of Mary-Ann Kramer, and our reception of her sworn evidence. He also pointed out that in his submission her evidence on these earlier incidents was uncorroborated. We were satisfied after preliminary questions to Mary-Ann that she understood the nature of the proceedings, and their seriousness. We also think that she had a clear idea of the strong moral obligation to tell the truth, although like many contemporary children she does not attend Sunday school. ,. ,, - 17 - . :~. Unfortunately, Mr. Nicholls' representative did not cross-examine Mary-Ann very thoroughly regarding her account of these prior events, out of his sense of delicacy. This makes the testimony perhaps less useful than it might have been. On the other hand, the grievor's representative made a point of requesting an adjournment to secure evidence on the grievor's side concerning these incidents. Ample time was afforded, and no witnesses were proferred and no explanation for their non-appearance tendered. It is, of course, difficult to establish the negative of a proposition, but once he had said he wanted to try, we were not happy with the lack of follow- through. This may well constitute what Lerner J. in Moran v.Richards (1974) 38 DLR (3d) 171, et 178, (RCJ) called “negative evidence Of corroboration." Mr. Nicholls did call three character witnesses on his behalf~, none of whom offered any observations close to the mark regarding possible 9mproper conduct before October 10. While vouching for his soft-heartedness and goodwill, and his good character, Mrs. Duffy, a tenant, and Mr. Bgnalia, an off-site caretaker, also confirmed that Mary-Ann "pestered" John around the apartment building or by attending at his apartment door. The third character witness, Mr. Frank Conroy, Senior Caretaker at Downsview, had ceased work at the Dundas St. West address some two years before these events. He testified that during his. three years of employment with Mr. Nicholls at 3725, he had never known him to have any trouble with females or untoward interest in bad books, and said he would trust his own daughter with him. On the events of October 10, one issue is whether Mike Jones was - 18 - actually present at the relevant time. Mr. Nicholls, Mary-Ann, and Jones do say that the youth was in the lobby following the descent from the fifth floor, although Mary-Ann's account of how she got up to the fifth floor and down again differs from that of.the two men. As far as his presence or not after his apparent 'departure', we have only Jones' word: Mary-Ann, Mrs. Kramer and Mr. Nicholls did not see him at all. Their failure to do so, however, is at best a neutral fact: he may well have been there unobserved. On the other hand, however, if Jones was where he said he was -. bobbing back and forth from the bulletin board to peeking around the corner - the vantage point was not a very good one. The incident did not, by all accounts, occupy a great deal of time. Yet if we consider the things he saw, and the things he only heard, and their apparent sequence, it is a reasonable inference that he must have been a very active observer, bobbing around quite a bit in a short time. This performance, and his not present- ing himself to Mrs. Kramer at the time to clear things up with his account of events, weaken th te plausibility of his evidence. Mr. Nichol 1s' contradictions before this board, saying first that he did kiss the girl in a fatherly way and then that he might have tried, coupled with the flat contradiction of what he said at trial and his limp explanation for the difference, do seriously weaken his credibility in our eyes. Mrs. Kramer was a genuine-seeming witness, with no serious contradictions in hertestimony, and a genuine sense of concern. Mary-Ann, too, seemed sincere in her account. The maincontradiction between her . - 19 - account of events and the Nicholls-Jones one relates to the initial meeting in the hall, the trip to and from the fifth floor. This forms such a small part of the evidence of all parties, and is, in essence, inessential in assessing the other events of October 10, that we give the discrepancy very little weight. We find, that the Ministry has made out its case against Mr. Nicholls which would normally justify discharge. Its witnesses were credible, their accounts were Borneo out by the "non-controversial" testimony of other witnesses - i.e. the practice of running errands, getting change, and 'pecks'. Their accounts were also strengthened by the inconsistencies and other frailties in the testimony of witnesses for the grievor. Mr. Nicholls seriously contradicted himself in a material item.of testimony and showed no foll,ow-through on his earlier request for time to bring witnesses. about events prior to October 10. This at least leaves the story of Mary- Ann Kramer unchallenged (except for his denial) to place the events of October 10 in context. In addition, the grievor and his representative suggested to this board that the whole incident had been used to scapegoat Mr. NichoTls, and to account for Mary-Ann's acquisition of large sums of money. This plot, it was argued, was the brainchild of Mrs. Kramer's aunt. The grievor~did not, however, call the aunt to testify in order to substan- tiate this theory. We are well aware that the burden is not on Mr. Nicholls to put forward an alternate explanation of these events, but he having chosen to do so, we think that the unverified implausibility of the charge is at least of some marginal assistance in helping us to determine credibility here. - 20 - Conclusion Having come to the conclusion that the Ministry would normally be justified in its,suspension and 'discharge for the events of October 10, 1978, we must still consider one other matter. Mr. Nicholls is over 60. By his own account, he is not overly prudent in his financial affairs, the generosity to the children being one aspect of a general easy going relationship tomoney. Becoming unemployed at this stage would be an extreme hardship to him, as it would entail loss of earnings and also of~accomnodation. In today's job market, with his limited education and skills we think Mr. Nicholls is right in being less than sanguine about his chances for re-employment. His discharge seems to have arisen out of events more characterized by bad judgment and foolishness than by wickedness. His behaviour toward Mary-Ann was apparently not repeated to any of the other children and his employment record is good. We therefore substitute for discharge a suspension without pay until August 31, 1979. As of that date, we require his reinstatement. We-' also think.that in the circumstances, it is "just and reasonable", to use the words of s. 18(3) of the Act, to require that this reinstatement be accompanied by a move to a building where Mr. Nicholls would be dealing primarily with senior citizens. Mrs. Duffy gave glowing testimony about his ability to establish rapport with this age group land attend to their needs very cooperatively. We would make it clear, however, that the reinstatement to the occupation of caretaker at the same level as before his dismissal should take place with resumption of pay and benefits as of August 31st whether or not the Ministry is able to locate a specific assignment for Mr. Nicholls right away. Dated at Toronto, Ontario this twenty-eighth day of August 1979 Mary Et?erts ' .Vice-Chairman I concur \,:r+nu U.rric MPmhP* - 21 - Appendix: Procedural Ruling Shortly after Mr. O'Keeffe began his cross-examination of Mrs. Kramer, the first witness called by the employer, certain matters arose which caused him to make a motion that this panel should remove itself from hearing this case. He did not contend that the panel was biased. The concerns were procedural, and involved two occasions when Mr. Tarasuk spoke up about questions put by Mr. O'Keeffe. The burden of the motion was that the panel was disqualified for denial of natural justice, or, in the words of subsections 18(l) and 18(8) Of The Crown Employees Collective Bargaining Act, 1972 IlOt giving a "full opportunity" to Mr. D'Keeffe to "present this3 evidence and make this1 submissions." Mr. O'Keeffe's complaint was that Mr. Tarasuk's objections should have been made to the.chair, and that the witness should have been excluded,while the issue was dealt with. He was~concerned as well that by not explicitly negativing the imputation of, as he called it, badgering, which Mr. Tarasuk, he said, levelled at him, the Board was leaving the witness the impression that it agreed with this. Badgering was not in fact mentioned by Mr. Tarasuk. On one occasion he pointed out that Mr. O'Keeffe should be satisfied with the answer he received to his question, even though it seemed to surprise him, to not be what he had expected and on the other his remarks were to the effect that Mr. O'Keeffe should refrain from putting the.same question a third time after twice being told by the witness that'she could not remember whether she had done what he was asking about. We have considered the motion that we remove ourselves and rule against it. We are of the view that there has been no denial of natural justice by this Board and in any event.it is premature at this ~stage to - 22 - allege denial of natural justice, being as this was only the outset of cross-examination of the first witness in the proceeding. Whether the grievor receives natural justice, or the statutory prescription, is in our view a judgment which can only be.made - by anyone - after considering the whole course of a proceeding. We point.out that under both section 18(8) of The Crown Employees Collective Bargaining I&t and common law the Board is master of its own procedure. We do not agree with the suggestion that the Board should have, of its own motion,,excluded the witness pending a decision on Mr. Tarasuk's objections. We do not think - and it was not really suggested - that counsel should make'E objection to questions asked on cross-examination. We agree that such objections should be made through and to the Board but are satisfied that they were so made. It is not necessary in our view for counsel - on either side - to refrain from complaining about a -question just because it may fall short of badgering. There are other objections to a question on cross-examination which may'be legitimate. We would remind both counsel, however, that nothing is to be gained by making premature objections to questions, or by making these proceedings overly contentious. This is serious matter which can best be dealt with in an atmosphere of calm consideration. This Board has jurisdiction over this grievance and will continue to act in it. .CThis procedura 1 ruling was made on the first day of the hearing.1