HomeMy WebLinkAbout1984-1105.Leering.85-11-01::
rE‘*lfoN~l r1s/soe- 0688
1105/84, 1106/84
1401/84
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
THE GRIEVANCE SETTLEMENT BOARD
Before:
For the Grievor:
For the Employer:
Oate of Hearing:
I !
OPSEU (G. Leering)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Natural Resources)
Gnployer
R. L. Verity,,Q.C. Vice-Chairman
P. Craven Member
A. McCuaig Member ~.
JCouJ.ie;. Hayes
Cavalluzzo, Hayes & Lennon
Barristers & Solicitors
W. M. Kenny
Counsel : ,
Hicks Morley Hamilton Stewart Storie
Barristers & Solicitors.
June 26, -37 1985
September 3, 16 1985
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DECISION
In a Grievance dated December 4, 1984, C. Leering, a
Biologist 28 with the Ministry of Natural Resources, alleges
dismissal without just cause. The settlement requested was re-
instatement with full compensation for lost wages and benefits.
This Board concerned itself solely with the Griever’s
dismissal. At the Parties’ request, no consideration was given
to the merits of two suspension grievances still outstanding.
In a letter dated November 26, 1984, Deputy Minister
John R. Sloan advised the Griever of his dismissal pursuant to
Section 22(3) of the Public Service Act. That letter specified
the reasons for discharge as follows:
“1) As a result of complaints from Junior
Forest Rangers, you were charged by the
O.P.P. with sexual assault. The subsequent
investigation and tr.ial resulted in your
conviction of common assault against em-
ployees in the Ministry’s Junior Forest
Ranger Program.
2) ‘Your actions constitute a breach of
trust and poor judgement relatlng to per-
sons under your care and control.
3) Your actions resulted in unfavourable
publicity to the respected and longstanding
3unlor Forest Ranger Program within the
Ministry of Natural Resourses.”
The allegations against the Griever resulted from the
complaints of two 17 year old youths that each had been sexual-
ly approached by the Crievor while,on a camping trip. FolIow-
ing an O.P.P. investigation, the Griever was charged with two
separate counts of sexual assault, contrary to s. 246(l) of the
Criminal Code of Canada. The charges’ were heard on November 9 ,
1984, before Provincial Court .3udge Kenrick in Provincial Cour t
(Criminal Division) of the District of Timiskaming; The Grfev ..~
or was acquitted .on the charges of sexual assault, but was con-
victed on the included offences of common assault. He .was giv-
en a suspended sentence and placed on. probation for one year.
Subsequently,‘the conviction was. appealed under s. 748 of the
C.C.C. before a District Court 3u,dge. On March.18, 1984, Dis-
trict Court Judge Perras allowed the appeal and s,truck out both
convictions, primarily for reasons of technical irregularities
at the Provincial Court trial.
At the Hearing before this Board,, the central issue
is whether the Grievor was discharged for just cause. The
facts surrounding the alleged sexual advances are in dispute.
To protect the identity of the two youthful complainants, this
Board will ‘re’fer to them in the Decision as “P.R.” and “A.A.“.
In the absence of agreement by Counsel, and .in recognition of
the fact that this is a public tribunal,,tt is not appropriate
to afford the Grievor a similar protection.
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By way .of general background information, P.R. and
A.A. were employed by the Ministry in the summer of 1984 in the
Ontario Junior Ranger program. That program is an outdoor edu-
cational, recreational and work experience for both male and
female youths who are 17 years of age. The two complainants
were assigned to the Junior Ranger Program in the Temagami area
from 3une 27, 1984 to and including August 21, 1984. .They were
assigned initially to Briggs Forest Ranger Camp until mid July
when they were transferred along with other 3unior Rangers to
the District’s Whitney Lake Camp.
On Monday, July 30, 1984, eight male 3unior Forest
Rangers, including the two complainants, left on a four day,
three night camping trip to Lady Evelyn Lake. The Junior Ran-
gers were supervised by a 22 year old foreman, and an 18 year
old sub-foreman, neither of whom were permanent Ministry em-
ployees. In addition, the Crievor attended on the camping trip
and was the only permanent Ministry employee to do so.
The purpose of the trip was to carry out a garbage
maintenance detail near Lady Evelyn Lake and a lake survey pro-
ject at a nearby Dane Township lake. The Grievor attended on’
IS ing a fish the trip for the purposes of conducting and superv
survey project at Dane Township Lake 818.
. . .
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On Monday afternoon, a base camp site was established
I
on a small island at Lady Evelyn Lake. ,The Griever was not in-
volved in setting up the camp. During that period, he took two
Junior .Rangers, including P.R., to portage certain equipment to
be used for the fish survey. When the Griever returned to the
camp site, three tents had been pitched (two large tents and
one pup tent), two of which were on somewhat rocky terrain.
The foreman slept alone in the pup’tent, and the Grievor de-
cided to sleep in one of the large tents with four Junior Ran-~
gers.. The Grievor’s sleeping bag was positioned between P.R.
and A.A. , .,
The factsof what transpired during the first and
third nights are very much in dispute. ‘.
P.R. testified. that on several occasions during .the
night of Monday, 3uly 30, 1984, the Grfevor made improper sexu-.
-8 al advances. The youth stated that because’ of the hot weather
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he removed his gym shorts and slept in his underwear leaving
his sleeping bag partially unzippered. After falling asleep,
he was awakened by a hand on the outside of his sleeping bag.
P.R. testified that he thought’nothing of this incident. Sub-.
sequently he felt the Griever’s hand touching his thigh and
leg. It was P.R.’ s testimony that he sh’uf-fled around in his
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sleeping bag and the hand was quickly withdrawn. Similarly, he
was not concerned by this second incident.
After a period of time, P.R. felt the Crievor's hand
on his stomach, followed in his own words by "a slight grip on
my penis". The Griever then allegedly withdrew his hand.
Shortly after that incident the Griever allegedly re-
moved P.R.' s hand from his sleeping bag and placed it on the
Crievor's penis, which was then erect. P.R. testified that he
"flinched" and promptly disengaged his hand. According to
P.R.'5 testimony, the Griever then masturbated.
P.R. testified that he made no comment to the Griever
following any of these incidents, nor at any other subsequent
time. He sald that he did discuss the incident, at least in
general terms, with a fellow Sunfor Ranger, whom we shall iden-
tify as "C", at some point on Tuesday, .3uly 31. C was not
1 called upon to testify at the Hearing. The evidence is clear
that on Tuesday P.R. moved his sleeping bag into the second
large tent where he slept on Tuesday and Wednzsday nights.
P.R. did not mention the incident to Outdoor Recrea-
tion Director Bob Patterson who visited the campsite briefly on
Tuesday evening. By way of explanation, the complainant stated
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"that wasn't the time nor the place to talk to him..:.not with
all the guys there”.
On Wednesday, August 1, the third day of the camping
trip, P.R. did report the in'cident to~both the foreman land the
junior foreman. Their initial reaction was one of disbelief.
However, P.R. pressed the matter and told the foreman that he
intended to report the incident tom District Manager Robert
McGee. The foreman advised caution ,in discussing the matter,
but quite properly reported the allegations following the re,-
turn to the Whitney Lake base camp. On Friday, August 3, P.R.
described the
Area Manager.
incidents to Robert Patterson, the‘ Recr'eation
:
A.A., testified that on the third night of the camp-
ing trip he was awakened on three separate occasions to find '.^.,
the Griever's hand placed on his buttocks inside the sleepin'g
bag. A.A. alleged.that he thought nothing of the first'inci-
dent, but was concerned when it hdppened a second~time; The
youth testified that he removed the Griever's hand from his
sleeping bag and adjusted ~himself in the bag and iippered'the
bag a further three to four inches. A.A. alleged that he was
awakened on a third occasion to find the Grievoi's hand inside
his sleeping bag, and again positioned on his buttocks. A.A.
testified that he withdrew the Crievor's hand', moved his sleep:
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ing bag further away, zippered the sleeping bag completely and
eventually got back to sleep.
I A.A. said nothing to the Griever at the time, but in
his own words he was “shocked” by these events.
The Crievor maintained that the events described by
the youths did not occur.
.Both Counsel presented detailed submissions, ably
supported in each case by relevant arbitral and judicial prece-
dent. Counsel for the Employer argued that discharge was the
appropriate remedy for this type of misconduct, and that reln-
statement would be inappropriate in the circumstances.
Counsel for the Union urged the Board to find that
neither allegation had been established under the standard of
proof of clear and convincing evidence. Alternatively, it was
! argued that discharge was an excessLve penalty, and that the
Board should exercise its authority In the substitut’ion of a
lesser penalty.
The standard of proof required in r ights arb itrations
1st of course, the civil test of proof on the “balance of prob-
abilities”, also referred to as the “preponderance of probabil-
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ity”. As a general rule, proof in a civil matter is a lesser
test than the criminal standard of proof beyond a reasonable
doubt. However, where’ serious personal misconduct is alleged,
arbitration boards require that the allegations be established
by clear and cogent evidence. Lord gustice Denning put the
matter into proper prospective in his frequently quoted Judg-
ment in Dater v. Dater .[19503, 2 All E.R. 458 at p. 459 as fol-
.ows:
“The difference of opinion which has been
evoked about the stan,dard of proof in these
cases ‘may well ,turn out to be more a matter
of words than anything else. It is. true.
that by ourlaw there is a higher standard
of proof in criminal cases than in civil
cases, but this is subject to the qualifi-
cation that ‘there is no absolute standard
in either case., In ciim,indl cases the
charge mu~st be proved beyond reasonable
doubt, but there may: be ‘degrees of proof,
within that. standards. Many great Judges
have said th,at, in propor.tion as the:crime
is enormous, so ought the,proof:to be,
clear. So also, in civil cases. T h’e c a se
may be proved by a preponderance of proba-
bility, but there may be degrees of proba-
bility within that standard. The degree
depends on the subject-matter. A civil
Court, when considering a charge of> fraud,
will naturally. require a higher degree of
probability than that which it would re-
quire if consideri~ng ,whether negligence
were established. It does’ not ado,pt so
high a degree as a criminal Court, even
when it is considering a charge of a crim-
inal nature, but still it does require ‘a
degree of probability which is commensurate
with the occasion.”
The real issue before this Board is one of credibil-
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1ty. The Courts have outlined certain factors to be taken into
I consideration in a proper determination of that issue.
The Ontario Court of Appeal in Phillips v. Ford Motor
Company of Canada, et al (19711, 18 D.L.R. (3d) 641, [19771 2
O.R. 637 approved the rationale of Mr. Justice O’Halloran of
the B.C.. Court of Appeal in Faryna v. Chorny [1952] 2 D.L.R.
354 at pp. 356-8 as follows:
“If a trial Judge’s finding of credibility
is to depend solely on which person he
thinks made the better appearance of sfn-
cerity in the witness box, we are left with
a purely arbitrary finding and justice
would then depend upon the best actors in
the witness box. On reflection it becomes
almost axiomatic that the appearance of
telling the truth is but one of the ele-
ments that enter into the credibility of
the evidence of a witness. Opportunities
for knowledge, powers of observation, judg-
ment and memory, ability to describe clear-
ly what he has seen and heard, as well as
other factors, combine to produce what is
called credibility, and cf. Raymond v.
Bosanquet (19191, 50 D.L.R. 560 at p. 566,
59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A
witness by his manner may create a very un-
favourable impression of his truthfulness
upon the trial Judge, and yet the surround-
ing circumstances in the case may point
decisively to the conclusidn that he is
actually telling the truth. I am not
referring to the comparatively infrequent
cases in which a witness is caught in a
clumsy lie.
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The credibility of interested witnesses,
particularly in cases of conflict of evi-
dence, cannot be gauged solely by the test
of whether the personal demeanour of the
oarticulai witness carried conviction of
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the truth. The test must reasonably sub-
ject his story to a'n examination of its
consistency with the probabilities that
surround the currently existing condi-
tions. In short, the real test of the
truth of the story of a witness in such a
case must be its harmony with the prepon-
derance of t,he probabilities which a prac-
tical and inf,ormed person would readily
.recognire as reasonable in that place and
in those conditions. Only thus can a Court
satisfactorily appraise the testimony of
.quick-minded, experienced and, confident
witnesses, and of those shrewd persons.
adept in the, half-lie and of long and suc-
cessful experience in combining skil.ful
exaggeration with.partial suppression of
the truth. Again a witness may testify
what he sincerely believes to be .true, but
he may be quite honestly mistaken.~ For a
trial 3udge ,to say ‘I believe him because I
judge him to be telling the truth', is to
come to a conclusion on consideration of
only half the problem. In truth it may
easily be self-direction of a dangerous
kin~d.
The trial Sudge ought to go further and say
that evidence of the witness he believes is
inaccordance with.the preponderance of
probabilities in the case and, if his view”
is to command confidence; also state his,
reasons for that conclusion. The law does
not, clothe the, trial 3udge with a divine
insight into the hearts and minds of the
witnesses. And a Court of Appeal must be
satisfied that the trial 3udge's finding of
credibility is based not on one,e,lement
only to the exclusion of others, but is
based on all the. elements by which it can
be tested in the particular case.
Mr. Justice Stephen put it another way: He
said (General View of the Criminal Law,, 2nd
ed., p. 191) ‘that the utmost result that
can in any. case be produced by judicial
evidence is a very high degree of probabil-
ity... The highest probability at which a
court of justice can, under ordinary cir-
cumstances, arrive is the probability th.at
a witness or a set of witnesses tell the
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truth when they aft’lrm the existence of a
fact. “’
Similarly, referring to the resolution of contradic-
tory evidence in general, Mr. gustice O’tlalloran commented in
Weeks v. Weeks [1955] 3 D.L.R. 704 at P. 709:
“In such cases a Court must look for the
balanced truth in the corroborative evi-
dence if such exists, and, in any event
measure all the evidence perspectively by
the test of its consistency with the pre-
ponderence oP probabilities in the sur-
rounding circumstances.. .‘I
The Board applies the above criteria and standards.
The resolution of credibility issues is never an easy task when
serious personal misconduct is both alleged and denied. In the
instant Grievance, a disturbing feature is the virtual absence
of corroborative evidence. It cannot be said that the testi-
mony of P.R. corroborates the evidence of A.A. In fact, the
complainants’ allegations are two separate and distinct allega-
tions, each of which is independent of the other. The testi-
mony of P.R. that he changed tents for the second and third
nights of the camping trip may well be the sole piece of cor-
roborative evidence.
Generally, boards of arbitration are reluctant to
accept evidence of serious personal misconduct in the absence
of meaningful corroboration. In passlng, it is lnterestlng to
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note that the Canadian Criminal Code was amended (s. 246;4)
effective 3anuary 4, 1983 for certain offences, incl’uding sex-
ual assault whereby, “no corroboration is required for a con-
viction and the 3udge shall not instruct the jury that it is
unsafe to find the accused guilty in the absence of corrobora-
tion”.
In assessing the evidence of ~P.R., it is~ difficult if
not impossible to attribute a motive for fabrication of the
events. Like A.A., P.R. did not know theecrievor prior to the
camping trip. Although P.R. may not hdve approved of some .of
the Grfevor’s “camp antics”, th.ere is’simply no kvidence that
P.R. bore any hostility~or animus towards the Griever. In .our
opinion, P.R. took certain risks in reporting the alleged inci-
dents -’ the possibility of ridicule by his peers; disbelief bye
his supervisors ; and the inevitable suspicion regardfng his own
:
sexuality. However, in general, P’.R.‘s’ twos detailed written
statements (Exhibits 4 and 5) are consistent with his’evidence,
both in Provincial Court and before this Board.
In’cross-examination, P.R. admitted “I don’t have a
very good memory”. Onseveral occasions, he was. uncertain as
to time and place, as .for example when and where he first spoke
to A.A. as to whether he had encountered a similar experience.
In addition, P.R. was uncertain as to what he said to Junior
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Ranger “C” on Tuesday, July 31 and to the foreman and junior
foreman on Wednesday, August 1.
P.R. testified before this Board in an honest, objec-
tive and straight-forward manner. Indeed he conveyed the im-
pression of a sincere, quiet, thoughtful yet determlned young
man. He was careful not to colour his testimony so as to un-
necessarily condemn the Griever. There was no evidence that
P.R. is a troubled youth or has at any time been under psychi-
. atric care. Similarly, there is no evidence that P.R. was un-
able to distinguish reality from sexual fantasy. We are satls-
Pied that a previous sexual incident, In which P.R. at age 11
was victimized while on a Scouting trip, has long since been
forgotten.
Under intense cross-examination, P.R. acknowledged
that except for the incidents on the first night, he saw no
sexual connotation in the Griever’s general conduct on the
i camping trip. To his credit, P.R. admitted in cross-examina-
tion that the morning after the incidents he wondered if they
had actually happened. That testlmony is consistent with his
written statements. At the Hearing, his words were that he
“agonized over this”. Again in cross-examination, Mr. Hayes
appealed to the complainant’s obvious sense of decency by pos-
lng the question:
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Is it fair to say that when you run it .over
in your mind, there is a lingering
doubt?“. P. R. replied: “No...if it didn’t
happen, I would not have pursued it, it is
too serious to fool around with”.
In short, he withstood penetrating cross-examination
with his story, and credibility intact.
In assessing the evidence of A.A., the Board must
exercise care to satisfy itself that his complaints were not an
attempt to jump >on the bandwagon.~ A.A. is an aggressive, out-
going youth ,rho apparently enjoys a reputation amongst some of
his peers, as likely’to embellish the facts.. While his evi- -
dence .was pres,ented. in a relatively straightforward manner, it’
was not as objective as the testimony of P.R. One is inclined
to wonder why A;A. failed to report. the allegations until
approached ate some subsequent time,by P.R.~ Had ,P.R.,,not taken
the initiative in speaking with A.A. we are satisfied, that
A.A. would not haves made his allegatio’ns knoan.
fin addition, there were several ,incfdents where A.A.
changed his testimony from evidence presented at the Provincial
Court. His denial of any discussion of the allega.tions while
on the camping trip appears to be in direct contradiction both
in. time and fact to the statements attributed to him by, manage-
ment during the Ministry’s investigation. Although the inci-
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dents may have occurred, the Board is simply not satisfied that
A.A.‘s complaint has been established on the standard of clear
and convincing proof.
The Crfevor’s testimony is perplexing. The 32 year
old Crievor denied in both examination-in-chief and cross-exam-
ination that he touched either youth in any improper fashion.
That explanation is consistent with his denial of wrong-doing
!’
when confronted with P.R.’ s allegation by Robert McGee on
August 13. On August 14, the Griever submitted a very detafled
written account of his recollections of the camping trip. That
statement Is critical of the Junior Rangers’ attitudes to
hygiene and food preparation and general unwillingness to co-
operate. However, the statement is significant in its absence
of any reference to the Griever ‘s alleged personal misconduct.
At the Hearing during cross-examination, the Crievor admitted
that his conduct was immature and that he acted throughout in
the fashion of a 17 year old. He also admitted to full parti-
cipation in remarks of a sexual nature in keeping with the gen-
eral atmosphere. The Cr.ievor’s written statement of August 14
makes no mention of any improper conduct on his part.
There is no evidence that the Griever has any pre-
vious affinity for adolescent males. Character evidence from
three Ministry co-workers establfsh that his reputation for
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sexual proclivity is normal in the sense of being heterosex-
ual.. The Crievor is married with two young children and. is
active in his community and active in his Church.
There can be no,doubt that the Ministry,of Natural
Resources’ 3unior Ranger Program is a popular,program of long-
standing which has benefitted countless youth, both,male and
female throughout the years. . It. is essential that the integ-
rity of the program be maintained and that the public. retain
confidence that the.young participantswill -not be subjected to
improper conduct. Indeed, the Ministry has an on,erous respon-
sibility in the administration of that. program. and a special
trust to the 3unior Forest Rangers, their.parents or guard-
ians. In sum, the Ministry must'.act'decisively in instances,oP
alleged imp.$oper c'onhuct. " 1.. ', .
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The Gr‘ik.vor"s fir.st- involvement with the.:,Emp,loyer .was
as a student in 1973. He achieved: tpermanent employm.ent i,n,
Novemberof 1978 land at then time ‘of his ‘discharge was classi-
fled as a Biologist 2-B. Th,e Crievor is apparently a vigorous
man, who is regarded by Counsel .for.the Employer, as a "satis-
factory employee". Ministry emp,loyees who had wo.rked with the "Y, :
Crievor, variously described him as, "honest, hardworking Andy-
dedicated", "honest and outgoing", and "a hard working young
biologist". These circumstances underline how essential it is
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to examine the evidence against hlm critfcally, but they do not ,
of themselves dispel it.
The Board has considered all the evidence with great
care and much solicitude. Reluctant as we are to believe alle-
gations of this sort against a man of the Griever’s general
reputation, and having scanned vigorously every circumstance
and every argument in the Griever’s favour, the Board feels
constraint to accept the essence of P.R. ‘s evidence. We find
that the Griever did make improper advances of a sexual nature
towards P.R. during the first night of the camping trip.
Having found the substance of P.R.9 evidence to be
clear and convincing, we must turn to the Grlevor’s alternative
argument: that discharge was an excessive penalty and that the
Board should exercise its discretion to substitute a lesser
one. The discretion requested arises out of section 19.3 of
t the Crown Employees Collective Bargaining Act, which provides:
“Where the Grievance Settlement Board
determines that a disciplinary penalty or
dismissal of an employee is excessive, it
may substltute such other penalty for the
disc~ipline or dismissal as it considers
just and reasonable in all the circum-
stances.”
I “,
To begin with, this Board cannot fault the Employer
for having taken severe disciplinary action. The Griever’s
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personal misconduct was serious, disturbing and totally inap-
‘propriate. Inasmuch as he was the only full-time Ministry
employee on the camping trip, the Griever was in a certain pos-
ition of authority. Clearly, in making improper advances
towards o . R. , he demonstrated extremely poor judgment. For its
part, the Employer conducted itsown investiga,tion, and quite
properly awaited the outcome.of the’criminal trial before im-
posing discipline.
To holds the .Employer blameless in its decision to
discharge the Gr’ievor is not, however, to. abandon this Board’s
discretion to substitute -a lesser penalty pursuant to Section
19.3 of the Crown Employee,s Collective’ Bargaining Act. The
Employer need not have acted improp,erly for this Board to
determine ‘that the discipline’was excessive.. Such a determina-
tion may follow merely from the’greater opportunity before the
Board to explore all the ci.rcumstances.. In this case, the
Employer did not ‘have the benefit of the Distr,i~ct Cobrt Judg-
ment when it dismissed the Griever. Moreover,.in determining
the appropriateness of discharge, this Board has had the advan-
tage of an exhaustive ‘inquiry, comprising four days of detailed
,_
testimony;
The issue for this Board to decide is not one of pun-
ishment. In a case, like this, where the incidents in question -
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have been the subject of criminal proceedfngs, the question
whether and to what extent the Griever is liable to punishment r
for his misbehaviour is within the jurisdiction of the Court.
Our job is to determine, first, whether the Griever has miscon-
ducted himself within the framework of the employment relation-
ship; and if we find, as we have found here, that he has done
so, we must go on to determine whether this misconduct strikes
so fundamentally at the basis of that relationship as !O render his
employment no longer viable. If we find that the misconduct,
in all the circumstances, is not such as to irreparably frac-
ture the employment relationship, we have the discretion to
substitute such other discipline as we find appropriate. In
exercising this discretion we are bound to take into account
all the cfrcumrtances disclosed by the evidence.
In assessing the appropriateness of the discipline,
we accept the rationale of Arbitrator H. G. Picher in Re -
Indusmin Ltd. and United Cement, Lime and Gypsum Workers
International Union, Local 488 (19781, 20 L.A.C. (2.d) 87 at p.
91:
“The appropriate measure of discipline can
never be determined in a vacuum. Arbitra-
tors have consistently had regard to a
number of factors to determine the proper
disciplinary sanction once just cause for
discipline 1s established. A first consid-
eration must be the circumstances of the
incident. Among the factors to be consid-
ered are whether there has been a disrup-
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I
tion of the work-place. a disturbance
interfering with bther:employees, a chal-
lenge to.the authority of the employer,
conduct tending to.undermlne the ability oft
the employer to conduct its business or an
interruption of production. Factors some-
times~mitigating~against harsh discipline
are economic hardship on the grievers and
the fitness of the penalty imposed h.aving
regard to their past employment record."
On the one hand, the Griever's misconduct constituted
a serious breach of his duty of fidelity to the Employer. The
, poor judgment he displayed casts doubt on his future trust-
worthiness. His actions undoubtedly posed a threat to the via-
bility of the Junior Rangers programme, which depends upon a
relationship of trust between the Ministry, the participants,
and their families.
On the other hand,
we are satisfied thatthe Griev-
or’s misconduct constituted an isolated incident in an other-
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wise'unb1emishe.d career. We are satisfied that there was no'
premeditation. on the Griever's part', and that he did not seek
i'. ,! out the opportunity for his misconduct. We are not persuaded
that at any time the Griever contemplated anything more than
actually happened. We accept that the incident was !'out of
character” and that, especially in light of its results to ,
date, it is unlikely ever to be repeated.
There are other circumstances to be taken into
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account. We are satisfled that supervision of or contact with
the Junior Rangers is not a central part of the Crievor’s
responsibilities as a field biologist. We are satisfied that
with the exception of this one Incident, the Grie.vor has dis-
charged his responsibilities to the Employer in a satisfactory
and professional manner. We are satisfied that the Griever’s
prospects of finding comparable employment in his profession
outside the public service are very limited, so that discharge
would work a particular economic hardship. We are satisfied
f
that the Griever has already paid a heavy price for his miscon-
duct. All of these factors tend to mitigate against dismissal.
’ (
We must also consider the fact that the Griever con-
sistently denied having misconducted himself. Generally,
boards of arbitration are reluctant to grant a remedy to a
Grfevor whose evidence they have not believed: In the unusual
circumstances of this case, we are satisfied that the Griever
sincerely believed his denial: that under significant emotion-
al strain he convinced himself that the incidents did not
occur. In our opinion the Griever made no deliberate attempt
to mislead his Employer, the Courts, or this Board.
Balancing all these considerations, this Board is led
to the conclusion that the Griever’s breach of his responsibil-
ities to the Employer &as not so fundamental as to render the
t - 23 -
continued employment impracticable. Moreover,
we consider that
the Griever has .a useful contribution to make fin the public
service. In our opinion, the circumstances of the incident and
the results which followed make it highly unlikely th.at the
Griever’s misbehaviour will be repeated in future. Nor do we
consider that the Employer, in organizing work assignments,
would experience serious inconvenience in keeping the Griever
from close and unsupervised contact with adolescent males.
Finally we note that the Grievok’s wife was present thr'oughout
the Hearing, and while. she was not c'alled upon to:give evi-
dence, it was.obvious to the Board that she was most supportive
of her husband.
On these considerations;. this Board is of the opinion
that this is the appropriate case to exercise our discretion
un~der Section 19(3) ,of the Crown Employees Collective Bargain-
ing Act. We find that In all the circumstances discharge is an
I excessive penalty,. We consider that ju.st and reasonable disci-
pline consists Ian an extended period of suspension, sufficient
to emphasize the gravity of the misconduct and convey the clear
message that such misconduct is not to be tolerated.
Accordingly, the Griever shall beg reinstated to his
previous classification as a Biologist 28, effective December
4, 1985. There shall be no retroactive payment of compenstion
. . .- I
- 24 -
or benefits, with the exception that there shall be no loss of ,
seniority. We leave to the Employer the location of the Criev-
or upon reinstatement, with the caveat that he is to be rein-
stated either to the Temagami area or to a substantially equiv-
alent posting. The effect of this order is a one year suspen-
sion.
The Board shall remain seized in the event that the
Parties experience any difficulty in the interpretation or im-
plementation of this Award. The Board expresses its apprecia-
tion to Messrs. Kenny and Hayes for their intelligent and sen-
sitive presentations in a complex and troubling case.
DATED at Brantford, Ontario, this 1st day of Novem-
ber, A.D., 1985.
4ez-+
R,-&=P&rity, Q.C. - Vi&-Chairman
.
P. Craven - Member
A. McCuaig -