HomeMy WebLinkAbout1999-0112.Levesque.01-05-07 DecisionONTARIO EMPLOYÉS DE LA COURONNE
CROWN EMPLOYEES DE L’ONTARIO
GRIEVANCE COMMISSION DE
SETTLEMENT RÈGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLÉPHONE: (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 600, TORONTO (ON) M5G IZ8 FACSIMILE/TÉLÉCOPIE: (416) 326-1396
GSB#112/99, 113/99, 114/99, 115/99, 144/99
UNION#99C138, 99C139, 99C140, 99C141, 99C310, 99C151
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Levesque)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Transportation)
Employer
BEFORE Randi H. Abramsky Vice-Chair
FOR THE Peggy Smith
GRIEVOR Counsel
Elliot, Smith
Barristers and Solicitors
FOR THE Len Marvy, Senior Counsel
EMPLOYER Legal Services Branch
Management Board Secretariat
HEARING DATEDS January 28, 2000; April 10, 2000; June 15, 2000; June 16,
2000; July 26, 2000; July 27, 2000; September 14, 2000;
September 15, 2000; November 9, 2000; November 10,
2000; December 14, 2000.
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AWARD
This case involves the discharge of an employee for allegedly filing false
allegations of sexual assault, sexual harassment and sex discrimination against a co-
worker. The Ministry concluded that the grievor filed the complaint “in bad faith” in
order to secure a “job/upgrade.” In addition, the Ministry determined that the grievor had
“engaged in inappropriate behaviour in the workplace which contributed to a poisoned
work environment.” For these reasons, the grievor was discharged. The issue before me
is whether the Employer had just cause to discharge the grievor.
FACTS
A. General Background
The grievor, Collette Levesque, began working for the Ministry of Transportation on
October 6, 1980. In April 1995, she went off on maternity leave. In August 1995, during
her leave, her Customer Service Clerk, OAG-7, position was relocated from Downsview
to St. Catherines. She moved with her family to St. Catherines and returned to work in
February 1996. Two months later, in April 1996, her position was surplused and she was
directly assigned to the position of Bilingual Word Processing Operator, OAG-7, in the
Carrier Licensing Office of the Compliance Branch, which had not yet relocated to St.
Catherines. It was still located in Downsview and would continue there until the summer
of 1996. Ms. Levesque accepted the assignment, but grieved because of the commute
required. Her grievance was settled at Stage 2, with the Employer agreeing to provide
her with a temporary assignment, beginning May 13, 1996, supplying
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receptionist/secretarial/clerical support in St. Catherines until such time as her position
moved to St. Catherines in the summer of 1996.
When Ms. Levesque arrived in St. Catherines, the temporary job she was placed in
was a Generalist Support Assistant Position, OAG-7, in the Enforcement Effectiveness &
Improvement Office of the Compliance Branch. She entered into a secondment
agreement for the period of May 13, 1996 to July 19, 1996, a period of ten weeks,
depending on the relocation schedule. Under the category “Action Plan (Duties/Tasks)”
were the words “Data Entry for Safety Net; Office Support.” The “Objective of
Assignment” was listed as “to provide general orientation to Compliance Branch
programs, issues, data base management and office procedures.” Her manager was to be
Mr. Mac Carbert, Manager, Enforcement Effectiveness & Improvement Office.
The day before she started the new job, Ms. Levesque met with Mr. Carbert. He
explained that the job involved data entry in the form of inputting inspection reports in
connection with the Safety Net Program and that a co-worker, Barrie Rowland would
teach her. Her job would also involve administrative support in terms of ordering
supplies and so forth. Mr. Carbert introduced her to the employees in the unit, including
Mr. Rowland, Dave Allen, and others.
The following day, her first on the job, Ms. Levesque testified that Mr. Rowland got
the computer ready for her, sat with her and showed her how to input the reports. She
stated that she took notes regarding how to do this.
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Mr. Carbert remained the grievor’s manager until he left in July 1996. At that time,
the next phase of the relocation to St. Catherines took place, including her home position
of Bilingual Word Processing Clerk. No one in management, however, discussed
returning Ms. Levesque to her home position. Nor did she discuss returning to that
position with management. This is because in June 1996, Mr. Carbert told her that if she
had the initiative to learn Mr. Rowland’s job, she had a good chance of advancement in
the future because Rowland would be retiring in a couple of years. This conversation,
particularly Mr. Carbert’s suggestion that she might advance if she learned Mr.
Rowland’s job, was very significant to the grievor.
2. The Grievor’s Allegations
From the period October 1996 until August 20, 1998, the grievor alleges that she was
the victim of sexual harassment, sexual assault and sex discrimination by Mr. Rowland.
By category, the grievor alleges as follows:
A. Sexual Assaults
1. That while attending a course in Maryland in June 1997, Rowland forcefully pulled
down her bikini top and pulled open her bottom.
2. That in January 1998, while at a training program in Centralia, Rowland physically
tried to force her into his bedroom, and that on the return trip, he propositioned her to
sleep with him
3. That in May and in June 1998, Rowland placed his foot against her crotch while she
was bent down to plug in a computer cable.
4. That on August 20, 1998, Rowland tried to grab her breasts.
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In terms of sexual harassment and sex discrimination, the grievor alleges as follows:
1. In October of 1996, Rowland’s humiliated and intimidated her after she made an error
on the computer while making entries into the “shipper overload project.”
2. That during the Maryland trip, Rowland propositioned her with the promise of a job
upgrade.
3. That during the Maryland trip, Rowland compelled her to go to dinner with him after
the “bikini incident” and that she felt obliged to accompany him each evening for
dinner while they attended the course in Maryland.
4. That Rowland misled her about the course content for the training session in
Maryland.
5. That in July 1997, Rowland did not allow her to participate in a project involving data
entry from the field.
6. That Rowland told her that her stepfather “deserved to die.”
7. That in February 1998, Rowland prevented her from making certain entries into the
computer and threatened to prevent her from accessing the computer by changing the
password, and told her that her position specification would be ready by March 31,
1998.
8. That in March 1998, Rowland told her she had to learn how to do the programming
by herself and that she was to do the job right.
9. That in April 1998, Rowland swore at her and called her “dopey.”
10. That in March or April 1998, Rowland told her that it was a good thing that she did
not sleep with him in Maryland.
11. That in May or June 1998, Rowland requested that she hire good-looking women
from the temporary employment agency.
12. That in June 1998, Rowland told her he could do anything he wanted to her.
13. That in June, July and August 1998, Rowland repeatedly asked her why she would
not give him his fantasies.
Ms. Levesque reported none of the incidents alleged to management until August 21,
1998.
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The evidence establishes that after Mr. Carbert left in July 1996, there does not
appear to have been a manager or acting manager for the Safety Net unit until February
1997 when Mr. Mike Goodale arrived. During this period, however, Mr. Mike Weir was
Acting Director, and the grievor was aware of this. When Mr. Goodale arrived, he was
the Manager in the Policy Office in the Carrier, Safety & Enforcement Branch as well as
Acting Manager for the Carrier Enforcement Program, which included the Safety Net
Program. In December 1998, he became the Manager for the Carrier Enforcement
Program. While Mr. Rowland testified that he was advised that Mr. Goodale had
become the acting Manager, Ms. Levesque testified that she was not aware of Mr.
Goodale’s position until much later.
Mr. Goodale testified that he spent between five to ten percent of his time overseeing
the Safety Net Unit. In his words, the Safety Net Unit “pretty well ran itself.” If there
was a crisis, he became involved, but even then, he stated that mostly Rowland handled
it. Goodale stated that Rowland reported directly to him and was responsible for
providing daily direction to the grievor and other data entry operators, providing training,
performing the daily downloading of the information with Ms. Levesque, as well as
trouble-shoot issues involving the Safety Net program and software.
Mr. Rowland’s home position was as a Vehicle Inspection Administrator, but in the
Safety Net Unit, he was in an acting assignment as a Systems Administrator. Both were
bargaining unit positions, although at one time, for quite a number of years, Rowland
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held a management position. He began his work with the Safety Net Unit in 1991 and
over time it became a larger and larger part of his work. By the time of the move to St.
Catherines, he was working exclusively as a Systems Administrator even though it was
still a secondment. In his estimation, Mr. Goodale spent between 2 to 5% of his time with
Safety Net.
The testimony of many of the witnesses – Ms. Levesque, Mr. Rowland, Dora
Cortellucci, William Cann and Dave Allen – reveals that the atmosphere in the Safety
Net Unit was quite freewheeling. According to Dora Cortellucci, a data entry operator in
the Safety Net Unit, Rowland and Levesque would often touch each other and had an
“odd relationship.” She stated that Rowland had a temper and would often yell at Ms.
Levesque, as well as others including her, when mistakes were made. He angered easily
and would often yell. It was “how he was – everyone knew that.” She stated that he
became worse in the Spring of 1998 when he began taking medication for a prostate
problem. In her view, both Levesque and Rowland would often use profanity, yell and
swear at each other, then later would laugh together. Use of the “f” word, she testified,
was a common occurrence with them. Ms. Cortellucci testified that she once told Ms.
Levesque that “if the yelling bothered her, don’t associate with him”, to which Ms.
Levesque responded that she “had to work with him but don’t worry about it; I’m just one
of the guys.”
William Cann, a Vehicle Inspector, testified that he saw Levesque come between
Rowland and a computer keyboard, wiggle her backside and effectively push Rowland
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into a chair, and that they both laughed about it. This was denied by Ms. Levesque. The
situation did not strike Cann as unusual for the two of them. He also saw Rowland lift up
Ms. Levesque’s skirt, exposing her leotards and say “let’s see what’s under here?” He
stated that Ms. Levesque responded, “don’t do that” and backed away.
Dave Allen, an employee in Enforcement Program Support, testified that Levesque
and Rowland were “constantly touching one another” but, from his perspective, it was
not “inappropriate” touching since it was friendly, not sexual. He saw them place a hand
on the other’s arm or leg, or pat their head, or hug. This occurred “all the time.” He
agreed that they would often swear and use the “f” word, as did he. He also agreed that
Rowland had a temper. He stated that Rowland would go out of his way to assist and
train Levesque and when she could not grasp it, he would get loud and lose his temper.
Rowland, at one point, told him that he had tried to teach Levesque D-Base programming
but that it was beyond her grasp. Allen also testified about a number of discussions he
had about sexual experiences while having coffee with Rowland and Levesque at various
times from 1996 to 1998, including her loss of virginity, a “hook” story and fellatio. The
evidence showed that Levesque did not initiate these conversations but participated in
them. She testified that she felt comfortable discussing sexual matters.
Ms. Levesque testified that in July 1996, with the second phase of the relocation, her
unit moved from the first to the third floor, and at that time, she became more involved
with Safety Net. She stated that Rowland taught her more. He taught her how to take
reports out of the system, how to answer requests for reports, sell reports to carriers,
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prepare invoices and fax reports, how to add new officers and delete others, as well as
answer calls.
She also testified that in October 1996, Rowland began working on a new project, the
Shipper Overload Project. He had the task of trying to format that data so it could be
inputted into the Safety Net program. She stated that he taught her where to input the
information in the program, but that one time, when she made a mistake she did not know
how to correct, he blew up at her. This incident forms one of the incidents of alleged sex
discrimination and harassment.
Specifically, Ms. Levesque testified that on one occasion the computer froze on
her and she went to Rowland for help, then sat down at the computer. She testified that
he yelled at her “for fuck’s sake, get away from the God damn chair.” She got up and
stood behind him and said that she was sorry. He responded that “sorry wasn’t good
enough.” He fixed the problem and told her that she “better not make a mistake again.”
She testified that she was very upset, that this was the first time he was harsh with her
and that she almost cried.
Mr. Rowland could not recall this incident. He testified that he did not say that she
had “better not make a mistake again” because everyone makes mistakes and he knew
she would make mistakes again.
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Ms. Levesque testified that at about this time Mr. Rowland suggested that she take a
D-Base course because it would be useful for her to learn. Accordingly, in January 1997,
she approached Mr. Creig Beatty, a manager on the floor although in another unit, to seek
approval for the course. Mr. Beatty agreed that she could take it and she began the
course in February 1997. She also took a Windows 97 course as well. When she met
with Mr. Beatty, Ms. Levesque asked him about a position specification for her position
and he told her that he did not have one for it. On cross-examination, she testified that
Beatty told her when the manager position for her unit was filled, the manager would
address it.
In April 1997, Mr. Rowland also suggested to her that she would benefit from a
Safety Net course given annually in the United States. He had attended several times and
planned to go again, and he felt it would be beneficial to her to attend some of the
courses. The conference for 1997 was to be held in June in Maryland. Approval for their
attendance was sought, and approved by the Acting Deputy Minister.
During the conference, the grievor alleges that Mr. Rowland’s sexually assaulted
her and propositioned her. Specifically, she alleges that she and Rowland traveled by
airplane to Maryland on Saturday, June 14, 1997 and arrived at the hotel in Columbia,
Maryland that evening. They had a drink at the bar, which Rowland paid for, and then
had dinner together. The training program started the next day at 2:00 p.m. In the
morning, they had breakfast together and then sat together at the hotel pool and talked.
She had on a bikini. On examination-in-chief, she testified that at about 1:00 p.m., she
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felt it was time to leave and get ready for the conference. Together they walked into the
hotel. Her room was on the third floor while Rowland’s was on the first, although she
was not sure where. As they passed his room, he stated “my room’s here” and asked her
to hold his glass while he swiped his entry card. She had “my glass of Pepsi” and “held
his drink” as he opened the door and put the key down on the dresser. He invited her in
and she said “no” and put her foot into the open door. She said she did not want to go in;
she just wanted him to take his drink and said, “here’s your glass” at which point, he
“pulled my bikini, hard enough to pull me into the room.” She said, “what the fuck are
you doing?” and tried to cover herself. He was laughing and she again said, “here’s the
glass” and he then pulled the bottom of her bathing suit. She yelled at him and said that
he began to flap his arms and say, “people will hear.” She then turned around, putting
her breasts back into her bathing suit and was crying. She testified that Rowland said,
“don’t be like that.” She stated that she then put the glass on the floor and fixed herself.
She picked her cigarettes off the floor and walked out, and he again told her “don’t be
like that.” She stated that she was crying, upset and embarrassed and arrived late for the
meeting.
Later, at around 5:30 p.m., she stated that Rowland called her room and asked her if
she wanted to go to dinner. She said “no, not yet.” He told her he was hungry and asked,
“you are having dinner, aren’t you?” to which she responded “yes.” He then told her that
she owed him a drink and she agreed to meet him in the lobby. They did not discuss
what had occurred.
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On cross-examination, Ms. Levesque was specifically asked whether she and
Rowland were carrying the glasses from the pool “because there was Pepsi in them” and
she responded “yes.” Later, she stated that there was no Pepsi in them and they were just
returning the glasses to the table where they got them. The table was by the conference
room for the training course, past where Rowland’s room was located. The only things
that she was carrying were the empty glass in one hand and her cigarettes and lighter in
the other. She stated that after she took Rowland’s glass, she had both glasses in her
hands with her cigarettes and lighter under her arm. When he pulled her bikini top, the
glasses were still in her hands. She agreed that she did not tell the investigator, who
investigated her allegations initially, that there was no Pepsi in the glasses or about the
lighter and attributed that to the fact that English is a second language for her.
The grievor did not report this incident to anyone at the hotel or to management back
in St. Catherines either at the time or after her return until late August 1998, fourteen
months later. Upon her return to work, she confided to Dora Cortellucci that Rowland
had asked her to go to his room to have sex during the trip. Ms. Cortellucci did not recall
the grievor mentioning him doing anything to her physically or her mentioning anything
about a bikini. The grievor initially testified that she only told Dora that Rowland had
made passes at her and it made her nervous. Later, she said that she told Dora that
Rowland “basically asked me to sleep with him”, that he made passes at her, and that she
told him “no way”. She did not tell her about the bikini incident even though Dora was
someone she confided in on a day-to-day basis.
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Ms. Cortellucci also testified, on cross-examination, that she advised the grievor, after
Maryland, to do something about it and report Rowland if he was harassing her. She
stated that Ms. Levesque did not want to report him because there had been a similar
prior incident in her employment with the Ministry that she had reported and she had
found it too stressful. Also, she was afraid of her husband’s reaction, that he would get
upset and do something to hurt Rowland. She told Ms. Levesque that if it was serious
she should talk to her husband; that is what she would do, but that it was her decision.
Mr. Rowland denies that the bikini incident occurred. He testified that on Sunday,
June 15th, they were at the pool, there was a Pepsi machine and they were drinking Pepsi,
they realized it was getting late and walked into the hotel together. He stated that his
room was on the first floor while her room was on the third. They passed his room, he
opened the door and said “see you in a few minutes.” He stated that she was not in his
room on Sunday, he never pulled her bikini down, and he just went into his room.
After this incident, the grievor continued to take her meals with the grievor for the
duration of the five-day conference. She stated that she felt compelled to do so by
Rowland. Rowland testified that they did have their meals together but denied that there
was any compulsion involved.
According to Ms. Levesque, a second incident occurred on the last day of the trip.
She stated that she had checked out of her room at 12:00 noon and came down with her
suitcase waiting for the shuttle bus to take her and Rowland to the airport at 4:00 for their
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flight at 6:00 p.m. Rowland invited her to sit by the pool with him. He was in his
bathing suit. She told him that she was packed but would sit by the pool with him.
While there, she mentioned how she had been in the job for a year and had taken on a lot
of responsibility, including the hiring and training of temporary staff, and that she should
get more money for it. She asked him whether he would talk to management about that.
She testified, on examination-in-chief, that he responded that “if you want more money
you have to take care of the boss.” She asked him what he meant and he replied, “I
could rent a room and me and you.” She asked him whether he was telling her that she
had to sleep with him for him to go to management to get her a job upgrade, to which he
grinned and nodded “yes.” She told him, “then I’m gonna retire an OAG-7, Barrie.”
Later, they took the shuttle together, sat on the plane together and he drove her home
from the airport.
Mr. Rowland denied these allegations. He testified that he and Levesque were at the
pool sun bathing the last day but they did not talk about her job. He said that she took her
blouse off and just wore her bra and jeans. He testified that he never said he was her boss
and never offered her a job upgrade, nor could he have done so. He stated that he did not
suggest they rent a room.
In terms of the courses she took, Levesque testified that Rowland advised her
about them as she was not experienced enough. She acknowledged that the courses he
chose related to her work with Safety Net, that she had looked through the course
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material and agreed with his selection and did not research it further. She agreed that he
tried to pick courses which could be useful for her.
According to Ms. Levesque, her relations with Rowland changed after Maryland.
Before, she stated that he had good days and bad ones. They would tell stories, including
sexual ones, and she felt comfortable doing so. He would put his arm around her or hug
her and she saw nothing wrong with it. She stated that his mood could quickly change,
however, if she made a mistake. He would get mad quickly and she would try to tiptoe
around him. When she erred, he would call her “Dopey 2” since he had dubbed another
employee “Dopey”. She stated that she did not like it and felt humiliated and
embarrassed by it. She stated that at the time, she did not get the punch line of the joke.
According to Dora, however, Ms. Levesque took it in a joking manner and often referred
to Rowland as “Grumpy”.
After Maryland, she testified that he became harsh with her. If she made a
mistake, he would call her a “fucking idiot – are you stupid?” She said he was rude and
crude to her after Maryland. In July 1997, she testified that Rowland was working on a
pilot project involving data entry from the field and when she asked him what he was
doing he responded “mind your own business” and she returned to her desk. Ms.
Levesque did not, however, report this treatment to management. Instead, she would
hide in the washroom and cry. On cross-examination, she acknowledged that later in the
day, although Rowland did not apologize he told her that he was working on a pilot
project and needed to concentrate on it and that she could take care of Safety Net.
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Rowland’s recollection about this incident differed. He stated that in July 1997, he
was asked to set up a program for lap top use in the field, so that the inspection reports
could be inputted directly from the officers in the field. He said that he left the memo
about it sitting on his desk, she read it and asked him about it. He told her that she had
enough to do with Safety Net, that she had programming to learn and a lot of
administrative work.
Dora Cortellucci testified that things “soured” after Maryland. Ms. Levesque, in her
view, was a lot more tense and Mr. Rowland was having a health problem, which made
him more tense. She stated that Ms. Levesque attributed Mr. Rowland’s behaviour to his
condition and the medication he was taking. According to Rowland, nothing changed
after Maryland. He stated that day, Levesque would come to work in the morning with a
cup of coffee and sit at his desk chatting for a half-hour and this did not change until
August 1998.
In August of 1997, the grievor had a pool party at her house, which Mr. Goodale
attended. On his way out, the grievor asked him about her job specification. She told
him that she was doing both administration and safety net and that it was a bit much for
her. He said he would look into it, but that he was not her manager, that she would be
getting one soon and he would address the job spec issue.
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The next major allegation centers on a training session in Centralia, near London in
January 1998. Rowland was invited to make a presentation to the Ontario Provincial
Police and new enforcement officers about the Safety Net program and how to complete
the required reports. He invited the grievor to attend with him as a learning experience.
She would watch him make the presentation and work the projector. She testified that
she felt that she had to go, as part of her training in Safety Net even though she was quite
worried about it after Maryland. She confided to Dora that she was afraid he would try
on her again.
Dora testified that she told the grievor not to go if she was worried, to find an excuse,
but she guessed it was important to go because the grievor went. In fact, the grievor
drove with Mr. Rowland for the 3½ hour ride to Centralia as well as returned with him.
Ms. Levesque testified that they arrived at Centralia around 11:00 a.m., had lunch,
followed by the presentation at 1:00 and were finished at 4:00 p.m. After, she and
Rowland, along with Peter Dodsley, the course convenor, had dinner together and then
went to “Dodsley’s little room”, the old nursing area. As Dodsley went to an adjacent
area to get a drink, she told Rowland that her bed had a two-inch mattress and felt like
steel. Rowland told her that he and Dodsley, as instructors, had regular beds and told her
to come see his room. She got up, walked to his room and put her “nose into it” when
Rowland came behind her and tried to push her into the room. She grabbed the side of
the doorway and yelled. She stated that Dodsley said “what’s going on?” to which she
responded “Rowland is trying to push me into his room.” There was no response from
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Dodsley. She said Rowland pushed his knee into her knee, but when Dodsley yelled, he
let her go. They then returned to the sitting area and sat down with Dodsley. She stayed
for ten or fifteen more minutes and left. She did not discuss what occurred but said she
felt upset.
The next day, Rowland made a morning presentation that was completed by 11:00
a.m., and then they drove back in Rowland’s car. On the way back, they did not discuss
what happened. She testified that as they passed by a few motels, he asked her if she
wanted to stop and she replied “no.” She further testified that as they passed Burlington,
she said, “there’s Burlington” and he asked her if she wanted to go there. She asked him
if he needed to go and he responded that she and him could rent a room and enjoy
themselves. She told him “no”. He then said “last chance” and she told him that she was
a happily married woman with a little girl; if she slept with him she would have to tell her
husband and she could not live with it; it would ruin her life. They did not discuss it
further.
Mr. Rowland testified that he was asked to go to Centralia to make a presentation
about the inspection reports – how to fill them out because there was a high error rate.
He made some overheads, which Ms. Levesque saw and she asked him if she could be
involved. He agreed, telling her that he would do the first one and she could come and
see how it was done, then she could do the second one. He stated that she went to both
sessions. It is unclear exactly when the second one was, but according to Rowland, they
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were three to five weeks apart. He stated that although she was supposed to put on the
presentation the second time, she was too nervous and he did the presentation.
During dinner, Rowland stated that Ms. Levesque complained about her bed. He
told her to talk to Peter Dodsley because there were extra rooms for instructors, but did
not know if she did so. After dinner, he, Ms. Levesque and Peter Dodsley went to the
sitting area where they talked for a while. Dodsley got a drink from an adjacent area and
brought it back. He said that Ms. Levesque never went to his room. He never pushed her
into his room. Dodsley never yelled, “what’s going on there?” On the way back in the
car, he testified that he did not suggest that they stop at a hotel, that he never said it was
her “last chance”. He stated that when he dropped her off at her home she invited him in
for a drink but he declined.
Peter Dodsley, a Transportation Enforcement Officer involved with training of new
officers, testified that he invited Rowland to Centralia to make a presentation on
inspection reports. He could not recall the dates when Rowland and Levesque came. He
recalled, however, that they socialized on two occasions, had beverages and then went
their separate ways. He did not recall Levesque yelling out to him, or yelling “let go,
what are you doing?” Nor did he recall yelling to her “what’s going on over there.” In
his view, he would have heard it if there had been yelling, or even talking in a normal
voice, since they were in a small area. He did not recall anything unusual about the
interaction of Rowland and Levesque during that evening. He recalled nothing out of the
ordinary. He stated that if he had heard something like that, he would have intervened.
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The grievor did not report what occurred to management upon her return from
Centralia or thereafter.
In February 1998, she testified that 80 new enforcement officers had been hired and
had to be inputted into the system. She inputted them as I.S.O.’s (Inspection Safety
Officers) while Rowland wanted them inputted as T.E.O.’s (Transportation Enforcement
Officers). She stated that he was mad when he saw what she had done and told her to
change it, and told her that if she did it again, he would change the password so she could
not get into the system.
In March 1998, she testified that Rowland told her to start learning programming by
herself, as he had learned, by installing software. She told him that she had not done this
before and not to yell at her if she made mistakes, to which he responded, “do it right and
I won’t scream at you.” When she erred, she testified that he got so mad at her, yelling at
her “what the fuck did you do? Get off the Goddamn chair. I’ve never met anyone as
dopey as you.”
In terms of the “dopey” name, Rowland testified that Levesque got nicknamed
“Dopey 2” since someone else was “Dopey 1”. He stated that in return she called him
“Grumpy” and that both of them used the terms daily, without objection. He testified that
she never objected to it and never said that it bothered her. He stated that one time he
asked her if his language offended her and she replied “no. I’m one of the guys. I’d tell
21
you if it did.” On cross-examination, Levesque acknowledged that she did not mind being
called “dopey” by Rowland, that he said it jokingly, and that she never told him not to
use that name.
Both Dora Cortellucci and Dave Allen confirmed Rowland’s testimony about the
“dopey” nickname. Cortellucci testified that she often heard Rowland call Levesque
“Dopey 2” and Levesque call him “Grumpy”. She said that she did not think Levesque
took it personally because she laughed about it. In her view, it was “like a pet name
almost.” Dave Allen testified that he often heard them refer to each other as “Dopey”
and “Grumpy” and that Levesque took it in a joking manner.
In terms of the programming, Rowland testified that at some point there was a
computer that the grievor could take home and he loaded it with programs and gave her a
manual for them and advised her to play with it. He said that he did not tell her she had
to. He told her that it would look good on her resume if she could learn these
applications.
In March or April 1998, Ms. Levesque testified that she and Rowland were discussing
his prostate problems and she said that he told her that it was a good thing that she did not
sleep with him in Maryland because otherwise he would have blamed her for giving him
a disease. Rowland testified that he told her it was a good thing she did not have her way
with him in Maryland or he would have blamed her for his prostate problem.
22
The grievor also alleged that Rowland instructed her to hire good-looking women
from the temporary agency if she had a choice and made unflattering comments about the
physical attributes of the temporary employees. At the hearing, Rowland testified that he
told Levesque that another employee, Joe Covello, had told him that if he was going to
get a harem he should hire better looking women and that it was meant as a joke. During
the investigation, however, Rowland told the investigator that he had told this to
Levesque as a joke. When questioned on cross-examination about the change, Rowland
stated that he recalled things after his meetings with the investigator that he did not recall
at the time and that his memory was better now than it was then.
Ms. Levesque further testified that in May 1998, the unit changed computers and to
assist Rowland she went under the desk to plug in the electrical cord. She was on her
hands and knees under the desk when he put his foot under her crotch and lifted her up,
surprising her and causing her head to hit the bottom of the desk. She asked him “what
the fuck are you doing?” to which he just laughed. She stated that this happened again in
June of 1998, although that time, he did not lift her but instead rubbed her crotch with his
foot, and she yelled out.
Levesque admitted, on cross-examination, that she did not report these incidents, did
not tell Rowland that she found it offensive or tell him never to touch her like that after
the May incident. When asked why she put herself in the exact same position one month
later, she replied that she thought he would stop.
23
Rowland’s version is somewhat different. He testified that in May 1998 Levesque
went under the desk to plug in the electrical cord with her rear end up. She “wiggled her
bottom” and was “gyrating there”, she said something about “doggie fashion” and he put
his foot on her bum and tapped or pushed. In June, she again went under the desk in the
data entry area to plug in a cable, again wiggled her bum and he told her “remember last
time you got a boot in the ass.” He stated that in June there was a group of Data Entry
Operators present and Levesque never said a word. In May, he denied that she hit her
head on the desk and, instead, was giggling and laughing. Ms. Levesque denied that she
wiggled her bottom or said anything about “doggie fashion” and that his foot was on her
crotch, not her buttocks, both times.
Dora Cortellucci testified that she did not see this incident although she was present
along with two other operators when Levesque bent down to install the cable. She heard
Rowland say something but she could not recall what since she was not paying attention,
although she thought it sounded smart-alicky. She recalled, however, that Levesque
asked her “did you see that?” but she had not.
Ms. Levesque testified that she went into the washroom and cried and as she came
out, Mr. Goodale saw her and asked what was the matter. She said that she could not
speak and kept on going. She did not discuss what happened or how she felt with Mr.
Goodale. She was not sure if this was in May or June.
24
Ms. Levesque testified that “because of these incidents”, she “was getting upset with
Rowland.” Sometime around May 1998, she saw Creig Beatty and asked for a meeting.
He told her that Goodale was on vacation and when he returns, they would meet. She
stated that in early May, she met privately with both Goodale and Beatty. At that
meeting, however, she only complained about her workload – her safety net and
administrative responsibilities. She did not discuss Rowland’s behaviour except to say
that he was irritable because of his prostate problems and the medication he was on.
When asked on examination-in-chief why she did not mention the incidents of assault or
harassment, she stated “I thought I could handle Rowland; if I kept saying ‘no’ he would
stop.” She added that Mr. Carbert had advised her to learn about the job and she wanted
training from Rowland about Safety Net. She also stated that in the past, she had gone
through a similar investigation and found the stress, financial and emotional cost too
high. She did not want to go through that again and thought he would stop.
During the meeting, Goodale and Beatty asked Ms. Levesque whether she preferred
Safety Net or office administration. She told them that she had spent two years with
Safety Net and career-wise it was a better place for advancement than office
administration. They agreed to hire a contract employee to do the administrative work so
that she could devote 100% of her time to Safety Net. She testified that she again asked
about a position specification and was told that a new manager would be hired that
summer and would look into it then. She told them “fine.” When asked on examination-
in-chief if she was concerned about continuing to work with Rowland, she testified: “I
25
was hoping that Rowland would stop. I thought I could handle him. I just wanted
training as I had been told in 1996; that was all I wanted from Rowland.”
According to Goodale, this meeting took place on April 24, 1998, not May. He
testified that the only complaints Levesque expressed were that Rowland was short-
tempered and grumpy because of the medication he was taking, that he would lose his
temper if she did not do the job properly and that her workload was too heavy in light of
her data entry and office administrative responsibilities. She told him, and Creig Beatty,
that the combination was creating too much pressure on her. Goodale testified that they
asked her whether she wanted to return to her home position as a Bilingual Word
Processor under Creig Beatty or if she wanted them to lighten her load, either by
relieving her of her data entry duties so that she would do office administration
exclusively, or relieving her of her administrative duties so that she could focus on data
entry with Rowland. Her preference was data entry. She wanted to stay in that area,
learn the job and progress. Accordingly, they relieved her of her administrative
responsibilities and hired a contract employee to do that work. Levesque made no
mention of any sexual assaults, harassment or discrimination by Rowland.
Levesque testified that in May, June and July, Rowland kept asking her to give him
his fantasies and why wouldn’t she give him his fantasies. The first time, she testified, on
cross-examination, she told him “no.” The second time, she responded: “Didn’t mother
give you any last night?” In her view, if he wanted sex he should go to his wife. Rowland
26
denied this, but stated that one time Levesque asked him why he was so grumpy, saying,
“what’s wrong? Didn’t you get lucky last night? Mother not being good to you?”
She also stated that in June 1998, when new dividers were installed, he told her that
he could now do anything he wanted to her and no one could see. This was denied by
Rowland who testified that he told the data entry operators that the new dividers would
offer them more privacy for their work.
Dora Cortellucci supported Rowland’s testimony. She testified that when the new
dividers were installed, Rowland told them that the dividers offered more privacy, that
they could concentrate better without so many people passing by and it would be more
private. She did not recall Rowland saying he could now do anything he wanted.
Another allegation Ms. Levesque made was that Rowland had told her that her
stepfather “deserved to die.” Although Ms. Levesque did not testify about this during
examination-in-chief, on cross-examination, she testified that she had received a
telephone call that her stepfather had not come home from a hunting trip and she was
worried about him. During a morning break, someone asked her what was wrong, and
she told them and added that he had heart problems and received an angioplasty
“(“balloon”) treatment the year before. She then testified that Rowland said that “if the
son of a bitch had no sense but to go hunting with a heart condition, he deserved to die.”
She said this was heard by Dave Allen. Allen, however, was not asked about this at the
hearing by either side, nor was any other witness called to confirm this statement.
27
Rowland testified that Levesque had received a call saying that her mother’s
boyfriend was reported missing and later it was learned that he had been found dead,
beside his truck. He said that he never said the man deserved to die. He testified that he
said, “at least he went doing what he liked to do.”
Levesque testified that in early August, after she returned from vacation, she asked
Rowland about a position specification for her job and he told her “you know what you
have to do.” Her understanding of that comment was that he meant that she had to sleep
with him. She was aware, however, that Rowland, as a bargaining unit employee, had no
authority to issue a position specification, that management and human resources had that
responsibility and authority. Rowland testified that whenever Levesque would inquire
about a position specification he would refer her to management.
Levesque testified that every time Rowland did something she would tell him to
“stop”. Every time he tried to touch her she would tell him “no.” She said she finally
“lost it” in late August 1998 when Rowland tried to grab her breasts at work. Levesque
testified that on August 20, 1998, at around 1:30 p.m., she was standing reading a
computer printout when Rowland came around behind her and tried to grab her breasts.
His hands came down over her blouse and he grabbed the metal of her bra causing her
breasts to come out. She said she “screamed” “what the fuck are you doing” and he
laughed. She went to the bathroom to fix herself and hide again. She said no one saw
her, although she admitted, on cross-examination, that this occurred in the middle of the
28
workplace and that others could hear her, if not see her. She did not immediately or
thereafter report it to management or tell anyone, but she finally realized that Rowland
did not understand the term “no”.
Levesque then stated that the next day, a co-worker, Sandy Pennycock, called her to
go have coffee. She said that Pennycock told her that if she did not stop taking
Rowland’s abuse she would go to management herself and report it. Levesque told her
please don’t, that she had spoken to Goodale that morning, and Pennycock replied, “good
because I’m sick and tired of listening to him abuse you like that.” Sandy Pennycock
was not called as a witness. In fact, the only witness called by the Union was Ms.
Levesque.
Levesque testified that she was planning to go to go see Goodale on August 21,
1998 when he came by at around 11:00 a.m. to say “hi” and “how are things?” She told
him “not good” and he asked why and she replied that she was scared to say and he
suggested they meet privately in the boardroom. Once there, he asked if it was about
Barrie Rowland and when he agreed to keep their discussion confidential she said “yes,
it’s Barrie.” She testified that she told him about Rowland’s comment “you know what
you have to do” when she asked him about the position specification. She told about what
he said in Maryland when she asked him to speak to management about a job upgrade –
that she would have to sleep with him. She said that he tried it again in Centralia and
mentioned “incidents in the office” and that he had to do something, that she could not
take Rowland anymore. She did not, however, tell him about the incident the day before
29
when he tried to touch her breasts at work. On cross-examination, she explained that she
did not tell Goodale about any of the assaults because it was “embarrassing.”
Levesque testified that Goodale told her that he might become the manager for the
unit, instead of just acting manager, and that there was an OAG-8 position open which
she might apply for. She responded “apply?” and he told her he would fix it so she got it.
He told her not to give him an answer then but to think about it over the weekend. She
said, “fine” and left.
She did and on Monday, she came in with “my counterproposal.” It was a typed,
formal agreement, stating that Ms. Levesque would be transferred to the OAG-8 position
as a “temporary measure” to remove her from an allegedly poisoned work environment.
It states that Ms. Levesque would not be required to apply for the OAG-8 position, and
that she would retain her rights under the collective agreement and the Human Rights
Code. This document was prepared with the help of a union representative.
Ms. Levesque explained that she thought that by applying for the OAG-8 job she
would be forgoing any chance of progressing in Safety Net. She wanted to leave Safety
Net temporarily, but not have to apply for the other position and give up on advancing in
Safety Net. From her perspective, what Goodale proposed required her to abandon her
hopes for advancement in the Safety Net area.
30
Ms. Levesque presented this proposal to Goodale on Monday, August 24, 1998 but he
would not sign it. He told her that he did not have the authority to waive her into the
position, that the allegations she had made were serious and that Rowland had a right to
defend himself. She told him “is that what you’re saying, he can defend himself?”
Goodale replied “yes” and she grabbed the document and left.
Goodale testified that he went to Ms. Levesque’s workstation on August 21, 1998 to
inquire about Rowland’s letting the temporary contract employees go home because of a
lack of inspection reports. He stated that during that conversation, she told him that
Rowland had been harassing her since the move to St. Catherines in 1995. He then
suggested they more to a more private area to discuss this and they went into the
boardroom. There she “described events in the office that would constitute harassment”
as well as at the Centralia training centre. She told him that Rowland had held out the
promise of getting his job when he retired in exchange for sex. She gave him no details
about the incidents. His notes of their conversation, which were written three days later,
state, in pertinent part, as follows:
At that time, she alleged that Mr. Rowland had been sexually harassing
her over several years in the office and during training sessions at the
Centralia training centre. Her rationale for enduring this harassment was
that Mr. Rowland had led to her believe that she would succeed him as the
Safety Net Administrator upon his retirement. However, recently Mr.
Rowland indicated to her that he wasn’t retiring until 2002. …
At this meeting, Ms. Levesque did not mention the sexual assault in Maryland or his
attempt to grab her breasts the day before. She did not mention Rowland’s placing his
foot on her crotch in May and June.
31
Mr. Goodale testified that during the meeting, he suggested she apply for the
OAG-8 position that had just been advertised. On Monday, she presented her proposal
that she be directly appointed to the position. He told her he had no authority to do that,
that she had raised serious allegations and that management would be launching a formal
Workplace Discrimination and Harassment Policy (WDHP) investigation. He told her
that, in his view, it would make more sense for her to move back to her home position
during this time, to relieve her of having to interact with Rowland, but she saw that as a
step backwards and was not interested in that option and the meeting ended.
Goodale then contacted Director Mike Weir to discuss the situation. They met
with a Human Resources Consultant and the Ministry’s WDHP Coordinator and it was
decided that a formal investigation would be launched. They also discussed what interim
measures could be taken to separate Levesque and Rowland during the investigation and
various options were outlined.
The next morning, Tuesday, August 25, 1998, Goodale went to find Rowland.
When he did, Rowland related an incident that occurred before Goodale had arrived.
Rowland told him that Levesque had shouted at him that he had promised her a job if she
put out for him and there were others who would have heard it. He asked Rowland to
join him in the boardroom and told him about Levesque’s allegations, that management
had initiated a formal investigation and the steps that would follow. Goodale told
Rowland that Levesque had alleged that he had promised her his job in exchange for
32
sexual favours. Goodale later confirmed that there were two witnesses to the morning’s
exchange between Levesque and Rowland.
One of these witnesses, Phil Cook, then Manager, Carrier Enforcement Program
Office, testified that at around 7:30 or 7:45 a.m., he arrived at work and passed by Ms.
Levesque’s desk. He noticed Rowland half sitting, half out of Levesque’s work area and
he proceeded to his own desk. He then overheard a conversation between them. He
testified that Ms. Levesque was “obviously angry”, saying that Rowland “promised me a
job if I worked hard, I would get the job.” Then Rowland responded “no, I didn’t” and to
“keep it quiet.” He then heard Levesque repeat “you told me I’d get that job; promised
me” and Rowland again said “no, I didn’t; you know I can’t do that” and it escalated
from there. He testified that Levesque then said, loudly, “Barrie, I’m tired of this; I’m
not taking it anymore, your touching me, harassing me”, “it stops here Barrie; it stops
now” and Rowland responded to keep it down, be quiet, don’t talk so loud.” He reported
this to Goodale later in the day. After reviewing his statement to the investigator, Mr.
Cook recalled that Ms. Levesque had said to Rowland that “you said if I sleep with you I
would get the job” which was when he realized the seriousness of the conversation. His
statement to the investigator continues that before Rowland could answer her comment
about sleeping with him, Levesque added “but I’m not going to do that, I refuse to; I’m
tired of you coming back here and harassing me and touching me. I won’t take it
anymore. It stops right here and right now. I’m not going to fucking take it anymore”
and then she stormed out. Cook testified that Levesque was very loud and that she spoke
the most clearly he had ever heard her speak. On cross-examination, Cook testified that
33
it was possible that Rowland had seen him come in from where he was situated, but that
Ms. Levesque would not have seen him.
On examination-in-chief, Levesque testified that on August 25th, Rowland came
to her and said that he needed to put a list together of all the contract staff hired for the
last two years and their number of hours. He told her that someone else would now be
hiring them. She asked him what would happen to her because that was her job, and he
responded she would have to either find another job or do data entry. She told him that
Carbert led her to believe that if she took initiative to learn his job she had an opportunity
for advancement. He told her that Carbert wasn’t there and what he said counts for
nothing. He said he’d been doing Safety Net for nine years even though it was not his
real job, that a lot of employees do not do their real job. She told him that he led her to
believe, for the past two years, that she had a good chance of getting his job when he
retired. He told her he never said that. She told him that she would not lie for him
anymore, that he was abusive, trying to touch her all the time and that “the shit was
stopping today”, she “would not take it anymore, that all he wanted was to sleep with
her” and that if he did not understand it before, she “will never sleep with him.” She
shouted, “I’ll never sleep with you.”
Later, still on examination-in-chief, Levesque testified that when she arrived at
work on August 25th, Rowland was “pretty mad, swearing and cursing” because he had
met the day before with Weir and Goodale and they were “sticking their noses” into
Safety Net. He would fix them and not retire until 2002. She asked what was going on
34
and he told her that management wanted the names of all contract staff hired since 1996
and their number of hours which then led to their altercation. Levesque stated that she
started their conversation softly but finished “very loud.” She testified that she was very
upset when Rowland told her she would have to find either another job or do data entry.
She testified that “if no one was willing to help me I was going to make sure that
Rowland [would] not touch me again. If he didn’t understand before, he understood
then.” She testified that Rowland kept asking her to keep quiet, to keep it down. She did
not know if anyone else was working in the area at the time.
On cross-examination, Levesque testified that she did not hear Rowland say that
he was not going to retire until 2002 until August 25, 1998. She reiterated that she got
upset when Rowland told her she would have to find another job or do data entry. She
explained that she had spent two years learning safety net and now was to “be disposed of
like this.” Why did she “spend two years training, it was not what was…” She said that
she told Rowland that morning that he had told her for two years that if she worked hard
she would be the only one with knowledge of Safety net and would have a good chance
to get the job, and he denied saying that. So she told him that the “shit stops today”, that
he had come around harassing her, trying to touch her, that all he wanted to do was sleep
with her and he never would.
Rowland’s version of this conversation is similar. He testified that management
had been upset to learn that he had let the temporary staff go. On Monday, August 24th,
he was asked by Goodale and Weir to provide a list of the temporary staff and their
35
hours, and he needed the timesheets for that. He told her that the Director’s
administrative assistant would do all hiring and firing of temporary staff. She asked him
“what about me, my job?” and he told her the discussion never came up about her job.
She asked him why didn’t she have a job or a job specification? Why did she go to
Maryland to learn about Safety Net? Why did she take the D-Base course? She told him
she could do the Safety Net job, and he told her “no, you can’t; no, you haven’t.” He
testified “that’s when it hit the fan” and she “blew up.” She screamed at him “if I slept
with you, I’d have your job” and repeated it very loudly. He told her to keep her voice
down and when she continued, he said, “thanks a lot” and walked away. He testified that
he never told her that if she slept with him she would get his job. Later that morning, he
told Goodale what had occurred and he was informed that Ms. Levesque’s had made
allegations against him of sexual harassment.
In the afternoon of August 25th, Ms. Levesque filed two grievances, the first
alleging sexual harassment by Rowland during the past two years and for failing to
remove her as set out in her counterproposal dated August /25/[sic]98.” Her requested
remedy was “[a] harassment free work place – maintain career advancement and
opportunities as previously discussed.” The second grievance was that she had “not been
supplied with a position specification…which accurately describes and defines my
current duties as Safety Net Assistant.”
On August 26, 1998, management met with Ms. Levesque and her union
representative and outlined three options to ensure no contact between Levesque and
36
Rowland during the investigation. Those options were (1) to return Ms. Levesque to her
home position; (2) for her to perform data entry on another floor; or (3) to have Rowland
work from home or at different hours than the grievor. Her choice was to have Rowland
work from home, which began the following day.
The WDHP investigation followed. Although the evidence is unclear on this, it
appears that originally the grievor did not want to participate in the investigation,
preferring to utilize the grievance process. But eventually, she did participate. The
investigation was conducted by Don Clark, an outside consultant, and was completed on
January 29, 1999 with the issuance of a lengthy report. According to Director Mike
Weir, many employees were interviewed and the investigation caused morale problems
and stress. The investigator’s report, which was introduced into evidence, found that Ms.
Levesque’s allegations of sexual assault, sexual harassment and discrimination were, on a
balance of probabilities, unsubstantiated, and further found that they were made in bad
faith finding that her motive for filing the complaint “is directly related to her desire for a
‘job/upgrade.’” He also concluded that Ms. Levesque had engaged in inappropriate
behaviour contributing to a poisoned work environment.
On February 16, 1999, based on the investigator’s conclusions, the Ministry
decided to discharge the grievor. In pertinent part, the letter of discharge states as
follows:
CONCLUSIONS:
The findings of the WDHP investigator were that on a balance of
probabilities, none of your allegations were substantiated. He goes on to
37
conclude, “the complainant’s allegations against the respondent constitute
bad faith”. The investigation also disclosed numerous examples of your
inappropriate behaviour in the workplace.
The ministry takes WDHP complaints very seriously and false allegations
cannot be tolerated. This investigation took five months to complete,
involved the participation of 20 witnesses, and necessitated the removal of
the respondent from the workplace form August 27, 1998 to present. An
independent investigator was commissioned to conduct this investigation
at considerable expense to the ministry, and has disrupted this workplace
to such an extent that it will be necessary to put steps in place to ensure
workplace restoration.
The ministry has concluded that you did file this complaint in bad faith.
The evidence indicates that your filing this complaint was directly related
to your desire for “a job/upgrade”. A witness recalls you telling him
sometime in 1998 that you “had a sure fire way of settling a job position”.
Information provided to the investigator by witnesses indicate that shortly
after becoming aware that the respondent was not retiring, you indicated
that he was sexually harassing you. You provided the investigator with a
document which indicated that your complaint could be resolved by the
employer providing you with training courses in the functions directly
related to the functions the respondent performs in order to learn about his
job.
On August 24, 1998, you requested that your Manager directly assign you,
on a temporary basis, to a vacant secondment position at a higher
classification. The investigator indicates in his report that “the
complainant’s concern about her job specification and her job security has
been a reoccurring theme throughout this investigation.”
The ministry has, therefore, concluded that not only did you file this
complaint in bad faith, but you also engaged in inappropriate behaviour in
the workplace which contributed to a poisoned work environment.
…
At the arbitration hearing, the Ministry called William Cann, a Vehicle Inspection
Administrator. He testified that in early to mid-1998, he was having a cigarette with Ms.
Levesque when they began talking about her secondment and that she wanted something
permanent. He testified that she told him that she “had a sure fire way to get a job” or
38
words to that effect. He did not ask her what she meant by that and did not think much
about it until he learned that Rowland had been sent home in August 1998.
Ms. Levesque did not address this testimony at the hearing even though it was
specifically mentioned in the letter of discharge. It was not refuted. It was not explained.
It stands unrebutted.
During the investigation and at the arbitration hearing, numerous other incidents
were raised, a number by Mr. Rowland. Most of those allegations, but not all, were
denied by the grievor. In terms of the Maryland trip, Mr. Rowland alleged that the
grievor was in his room on Wednesday, before dinner, to have a drink. He went into the
washroom and when he came out, Ms. Levesque had her blouse open and her bra raised
up over her breasts and said, “you said I had a nice body; I’ll let you see it” or show it to
you. He said that he stood there, smiled, and is not sure what he said. She then “fixed
herself up” and they went to dinner. This was denied by Ms. Levesque.
Rowland further testified that on their last night in Maryland, late Thursday night
or early Friday morning, after a party in the hotel bar from 4:30 p.m. to some time after
midnight, Levesque went to his hotel room with him. He stated that while at the party,
she wanted to go back to his room and show him a good time. In his view, she was
alluding to oral sex. He reached this conclusion because on the flight to Maryland she
had told him that it was the “wrong time of the month.” He testified that she said this
when they discussed the reaction of their spouses to their traveling together and she told
39
him that her husband need not worry because it was the wrong time of the month for her.
She acknowledged that she said this to him, but only to answer his questions as to why
she was so quiet.
Rowland testified that they “closed down the bar” and he walked her to the
elevator where she insisted, loudly, on going to his room. He said this embarrassed him
so they went to his room. He stated that he had partied with her before and felt she was
“a gonner”. He gave her a vodka and Pepsi, which she drank, and then she stood up and
said to him “kiss me”, so he did. He said they fell back onto the bed and spent about ten
minutes “groping” each other when she said that she wasn’t aroused. Neither was he
since they both had a lot to drink. They then sat on the bed and talked. During their talk,
she told him about sexual harassment grievances she had filed against two managers, one
who requested oral sex in exchange for a job, and what had happened. After a half-hour,
they were both sleepy and he took her to the elevator and she went to her room. Ms.
Levesque denies this allegation.
On cross-examination, it became clear that Rowland did not correctly recall the
dates of the Maryland trip. Their expense claim forms indicate that they returned to
Ontario on Thursday, not Friday. But even then Rowland was convinced they returned
on Friday. He also could not recall registering for a trip to Washington, D.C. during the
conference, but he made a claim for that expense, as did the grievor even though neither
of them attended. According to the grievor, the only time that she was in Rowland’s
hotel room during the trip, beside the bikini incident, was on Tuesday night, after a
40
manager’s cocktail party, to obtain a flyer about the Washington, D.C. trip. Rowland
testified that she was not in his room on Tuesday night.
On cross-examination, Rowland stated that he was not concerned about the
grievor’s revealing to him that she had filed sexual harassment grievances. She told him
that they were friends and, from his perspective, she had taken the initiative “most of the
time; all of the time.” He found her to be a fun, bubbly person and had told him that she
was “one of the guys.” He stated that it was not until August 25, 1998 when she
screamed at work “I’ll never sleep with you” that he thought he might become her third
grievance on the issue.
Other allegations raised by Rowland included Ms. Levesque brushing against him
with her breasts at work and he elbowing her in return, her brushing her breasts against
his ear causing his hearing aid to squeal, her touching his thigh and pushing her buttocks
into his groin. He also said that on several occasions, he had his hand on a desk when she
would come over and put her crotch there and he would flick his finger at her to get her
to back off. Levesque denied all of this. He said that she would hike her skirt up and
adjust her pantyhose. He stated that on one occasion, she came in with a black leotard
and short skirt and he asked her “what the hell you got on there?”, although on cross-
examination he denied saying that, and she lifted her skirt, saying “like it?” Later, he told
another employee, Dave Allen, to check out her leotard and she lifted her skirt again,
twirled around and laughed, and later did it with William Cann. He could not recall the
41
grievor asking him not to do that, as Cann testified. He stated that she also made motions
as if to grab his crotch, although she never actually did so.
Rowland further stated that she once told him, in Dave Allen’s presence, that he
was “well hanged.” Allen then corrected her by saying she meant, “well hung.” This was
confirmed by Allen. Ms. Levesque acknowledged that she said that. She testified on
cross-examination that in the Spring of 1998, she came into get a report from Rowland
while Dave Allen was there. She said that he grabbed his privates, shook them and said,
“Come on baby, come sit here.” She said “no” and then said to Allen “well, he looks
well hanged.” She admitted, on cross-examination, that she did not mention this to the
investigator. She stated that she thought, at the time, that Rowland’s conduct was
inappropriate but that she thought she could handle him by saying “no.”
Finally, Rowland told the investigator and testified at the hearing that in February
1998, Ms. Levesque put a pair her panties on a co-worker’s head and joked that he was
the “only one who could say that he got into my pants.” This was acknowledged by the
grievor.
Rowland testified that these kinds of interactions had gone on so long that they
did not mean anything and were not sexual in nature. He said she would giggle and he
would laugh. Similarly, the grievor repeatedly testified that “this was the way Barrie
was.”
42
On February 22, 1999, Rowland was given a four-day suspension for engaging in
five instances of inappropriate workplace conduct which contributed to a poisoned work
environment. He testified that he did not grieve this discipline because he felt that it
would not have been resolved by the time he retired.
The evidence showed that Ms. Levesque was quite familiar with the grievance
process as well as the complaint process under the Ontario Human Rights Code. In 1991,
she filed a harassment and classification grievance which was resolved through a job
upgrade. In 1992, she filed a sexual harassment grievance. In May of 1992, she filed five
formal complaints under the WDHP, resulting in three investigations. In 1995, she filed a
complaint under the Human Rights Code, which was dismissed in 1996 because the
allegations were untimely filed. As a result, she acknowledged that she was aware of the
importance of timely reporting of alleged harassment. She had also filed other
grievances, including the one that led to her secondment in the Safety Net unit.
Levesque also knew that Rowland could not just “give” her his job. He was a
bargaining unit employee with no control over the job competition that would fill his
position upon his retirement, or decide whether it would, in fact, be filled. She was aware
that there would be a competition for it and that the more she was able to learn, the better
her chances would be.
The evidence showed that Rowland did try to assist Levesque by training her in
Safety Net, by suggesting she learn D-Base, and learn the instructional element of the job
43
in Centralia. He would tell her that these things would look good on her resume and help
her get the Safety Net job if she applied. But there is no evidence – even from Ms.
Levesque - that he promised her his job and Levesque, as a long-service employee, was
fully aware that he could not do so. In none of Ms. Levesque’s specific allegations
against Mr. Rowland did she allege that he had promised her his job in exchange for sex
or sexual favours. The only allegation that comes close to that is her allegation that
Rowland told her she would have to “take care of the boss” if she wanted him to speak to
management about a job upgrade.
As a long-service employee, Levesque was also well aware of “acting” managers.
Even though there was a distinct lack of a management presence in the Safety Net unit
after Mr. Carbert left, there were managers around, most notably Mr. Beatty to whom the
grievor went to for approval of her D-Base training in January 1997. The evidence is
clear that if she had wanted to find a manager, she could have done so. The evidence is
also clear that she had ample opportunity to raise what occurred with both Goodale and
Beatty in April 1998 but did not do so. Instead, she chose to work even more closely
with Mr. Rowland.
Positions of the Parties.
A. The Employer
The Employer asserts that the evidence establishes that Ms. Levesque filed false
allegations against her co-worker Barrie Rowland and that she did so in bad faith, and
that she engaged in inappropriate workplace behaviour which contributed to a poisoned
44
work environment. Accordingly, it submits that it has established just cause for the
grievor’s termination.
In the Employer’s view, this case turns on credibility and it relies on the test for
credibility set out in Faryna v. Chorny [1952] 2 D.L.R. 254(B.C.C.A.) in which the
testimony of an interested witness must be assessed in relation to “its consistency with
the probabilities that surround the currently existing conditions.” It also cites to OPSEU
(McGowan) and Ministry of Community and Social Services, GSB No. 0888/85 (Draper,
Vice-Chair) which adopts the Faryna test.
The Employer submits that the grievor’s testimony is inconsistent with the
probabilities. Overall, it points to the substantial delay in the grievor’s reporting
allegations of serious sexual assault, even though she was aware of the importance of
timely filing. She never told anyone – co-workers or management – of these allegations
at the time, even though she felt quite comfortable discussing sexual matters with men
generally.
More specifically, the Employer cites to the inconsistencies in the grievor’s story
about the bikini incident, particularly in relation to the glass of Pepsi. It submits that it is
improbable that nothing happened in relation to the two glasses if she was pulled
forcefully into the hotel room by her bikini top, as alleged. It also submits that it is
unlikely she walked through the hotel in just her bikini without some sort of top or cover-
45
up. It submits that it is improbable that just a few hours after such an assault, the grievor
would have dinner with Rowland and every meal with him thereafter.
The Employer also submits that the grievor’s allegation that Rowland propositioned
her on their last afternoon in Maryland, a few hours before they were to leave is
improbable. In its view, after spending five days and nights together, it makes no sense
that he would suggest they rent a room at that particular time. Nor, it submits, if this
occurred as alleged, is it probable that the grievor would have accepted a ride home with
him from the airport.
In terms of Centralia, the Employer relies on the fact that Mr. Dodsley did not support
the grievor’s testimony and could recall nothing out of the ordinary when she and
Rowland were there. It asserts that it is improbable that the grievor would have accepted
a 3½ hour ride alone with Rowland after Maryland or ride home alone with him after
what she alleges occurred there. Nor, it asserts, is it probable that she said nothing to
Dodsley or anyone else about Rowland’s attempt to push her into his room, but instead
sat with them as if nothing happened. It also submits that it is beyond reason that
Rowland would try to push her into his room with Dodsley only a few feet away.
In terms of the grievor’s allegation that Rowland tried to touch her breasts at work,
the Employer submits that this is also incredible. It contends that the alleged assault took
place in the middle of the day, at work, with other employees only steps away and well
within hearing distance. It argues that it is incredible that no one heard her scream, as she
46
asserts, and that she did not immediately march into a manager’s office to report this
incident. In fact, it points out that the grievor never reported this even when she met with
Mr. Goodale the next day or anytime thereafter. It submits that her excuse that she was
embarrassed does not ring true given her ability to discuss intimate sexual matters with
male colleagues.
The Employer submits that none of the grievor’s other allegations ring true or make
any sense. In each case, the grievor’s response is not what one would reasonably expect
someone to do. In terms of Rowland’s putting his foot on her crotch, it submits that if the
first incident occurred as she alleged, why would she put herself in exactly the same
situation again? It contends that there are a lot of ways to plug in an electrical cord
without putting herself in an identical position.
The Employer argues that in all of the cases, Rowland’s testimony is far more
credible. It contends that Rowland’s testimony was straight and clear about what did and
did not happen, and his testimony was supported by other witnesses. It submits that
Rowland’s testimony has a clearer ring of truth and probability. It also submits that
Rowland, who had retired, had nothing to gain or lose by his testimony in contrast to Ms.
Levesque. It points out that Ms. Levesque’s testimony was not corroborated in any
significant way. It contends that the Board need not rule on all of Rowland’s allegations,
or find that all of Rowland’s testimony is true, to rule that the grievor’s allegations were
false. In support of this contention, the Employer cites to OPSEU (McGowan) and
47
Ministry of Community and Social Services (1987), GSB No. 0888/85 (Draper, Vice-
Chair).
The Employer submits that the grievor knew that Rowland, as a bargaining unit
employee, had no control over who would get his job upon retirement or control over her
position specification. He was not a manager and had no control over the grievor’s status.
It contends that his comment “you know what you have to do” was simply a reference to
the fact that she had to go to management, not him, and was not proposition. It argues
that in light of her understanding about the hiring process in government, her shouting
out on August 25th that he promised her his job if she would sleep with him can only be
viewed as planned in order to bolster her claims.
The Employer argues that the evidence strongly supports the conclusion that the
grievor filed her claims in bad faith in order to secure a job/upgrade. It notes the
testimony of William Cann that she had a “sure fire way of getting a job”; her
“counterproposal” placing her temporarily in the OAG-8 position; her insistence on
progressing within Safety Net and getting Rowland’s job.
In the alternative, the Employer argues that even if the absence of a bad faith motive,
discharge is warranted if the Board finds that the grievor filed false allegations. It
submits that if the allegations were false, bad faith may be inferred.
48
The Employer submits that the grievor’s misconduct – her lies about what occurred -
constitute a serious, inseparable breach of the employment relationship. In support of its
assertion, the Employer relies on Re Bullmoose Operating Corp. and C.E.P., Loc. 443
(2000), 88 L.A.C. (4th) 317 (Larson) and Deigan and Treasury Board (Industry
Canada)(1995) 27 PSSRB Decisions 31 (Digest). It submits that Ms. Levesque lied from
the outset and continued her lies throughout the investigation and at the arbitration
hearing.
The Employer asserts that an allegation of sexual harassment is an extremely
serious allegation which can have devastating consequences to the accused individual. In
support of its assertion the Employer cites to Re Canadian National Railway and
Canadian Brotherhood of Railway, Transport & General Workers (1988), 1 L.A.C. (4th)
183 (M.Picher); Re Canadian Union of Public Employees and Office and Professional
Employees’ International Union, Local 491 (1982), 4 L.A.C. (3d) 385 (Swinton). It
submits that discharge is the appropriate penalty for filing a false allegation.
In the alternative, the Employer contends that the grievor be awarded pay in lieu
of reinstatement, relying on Deigan and Treasury Board (Industry Canada), supra.
B. The Union
The Union submits that it is unprecedented for the Employer, having concluded, on a
balance of probabilities standard, that the evidence did not support the grievor’s claims,
to then decide that they were filed in bad faith and terminate the grievor’s employment.
49
The Union submits that this second step, if sustained, will have a chilling impact on
individuals bringing forward complaints of sexual harassment and discrimination. It
likens it to a grievance being dismissed because it was not established on the balance of
probabilities and then concluding that because it was not, the grievor should be
dismissed.
The Union agrees that this case largely rests on credibility and supports the test for
credibility set out in Faryna, supra. It disagrees, however, that this standard supports the
Employer and submits that on a balance of probabilities, the grievor’s assertions can be
substantiated. This is particularly true, it argues, when one considers Mr. Rowland’s
personality as well as that of Ms. Levesque. It asserts that it is only when the Board
considers the kind of man Rowland is that Ms. Levesque’s actions begin to make sense
and lend an air of credibility to her testimony.
The Union submits that Rowland had a forceful, in charge, confident personality and
that he acted as a de facto supervisor of the Safety Net unit. He would not admit he was
wrong even in the face of contrary evidence such as the dates of the Maryland trip, or his
registering for the Washington, D.C. excursion. In its view, he ran “hot and cold” about
Levesque, sometimes warm and encouraging her in her career and sometimes short-
tempered and yelling at her. The dynamics between them, in the Union’s submission,
explain why Levesque withstood Rowland’s conduct for so long without reporting it to
management. It submits that Levesque wanted Rowland to train her so that she would be
in a good position, experience-wise, to compete for his job when he retired. It argues that
50
only Rowland could train her; there was no one else and so her options were limited. The
union argues that while other employees like Dora Cortellucci could avoid Rowland,
Levesque could not. She had to work closely with him. The evidence showed, it asserts,
that the grievor was often upset at work, which demonstrates that something had
happened; not nothing as the Employer asserts. The fact that she told Dora that Rowland
wanted to sleep with her also indicates that something happened in Maryland and
Centralia. The Union further submits that the grievor’s participation in relaying sexual
stories does not indicate her acceptance of unsolicited and unwanted touching. In support
of its position, the Union relies on Strauss v. Canadian Property Investment Corp. et al.
(1995) 24 C.H.R.R. D/43 (Bassford)
The Union further contends that the matters which Rowland admitted to – flicking
his finger at Levesque’s groin, putting his foot on her buttocks – demonstrate that
Rowland was the type of man who thought it was okay to playfully pull her bikini top
and bottom. It submits that such conduct would not be out of character for him. It
submits that it could have happened, as alleged by Ms. Levesque.
The Union contends that the Employer makes too much of the full/empty Pepsi
glass in terms of the bikini incident and suggests that the difference is a reflection of the
fact that English is the grievor’s second language, not a change in her story. In its
submission, it is entirely credible not to leave the Pepsi glasses at the pool and that it is
not unusual for people to pick up after themselves or for the grievor to have walked
through the hotel in her bikini, particularly in the southern U.S. Nor, it submits, is it
51
surprising that the grievor continued to dine with Rowland after the bikini incident since
she knew no one else there and she is a social person, on her first business trip. The
Union submits that while some of the grievor’s stories may sound odd, they make more
sense than Rowland’s testimony. In its submission, Rowland’s testimony that the grievor
pulled up her bra for his viewing pleasure and he said and did nothing is patently
incredible. It notes that his assertion that his recollection was better at the hearing than
when he met with the investigator in the fall of 1998 renders his entire testimony suspect.
In support of this contention the Union cites to Re Canadian National Railway Co. and
Canadian Brotherhood of Railway, Transport & General Workers, supra.
The Union argues that even if the grievor’s allegations cannot, on the balance of
probabilities, be sustained, the Board then cannot take the quantum leap of concluding
that they were made in bad faith.
The Union contends that there is no evidence of bad faith by Ms. Levesque. It
submits that the confrontation between Ms. Levesque and Rowland on the morning of
August 25th was not a planned, premeditated encounter. Instead, when Rowland told the
grievor she could either get another job or do data entry, Ms. Levesque simply lost it.
The Union notes that Rowland’s response was only to “keep it down” and that he did not,
at the time, deny her allegations nor was he surprised by them as one might expect. It
asserts that the fact that she submitted a “counterproposal” is also not indicative of bad
faith. The proposal, it notes, was to place her in the OAG-8 position as a temporary
measure only while investigation pending. In its view, such a suggestion was logical.
52
The fact that she did not want, after two years, to give up on Safety Net and was not
interested in permanent job outside Safety Net was reasonable under the circumstances
and does not mean that she made the allegations in bad faith.
The Union also contends that the “triggering event” was Rowland’s attempt to touch
the grievor’s breasts at work, not the delay in his retirement date. It submits that her
belief that she could handle Rowland by saying “no” was not unreasonable. Nor is it
unreasonable, in its view, for an employee not to run to management at the first instance
of harassment, citing Piazza v. Airport Taxi Cab (Malton) Association et al., (1985) 7
C.H.R.R. D/3196 (Zemans)
The Union contends, in the alternative, that a penalty other than discharge is
appropriate in this case. It notes that Ms. Levesque is a long-service employee with a
clean work record. It argues that a penalty less than discharge would be sufficient to
ensure that no similar conduct occurred in the future.
The Union also cites to management’s responsibility in this case. It notes that even
though it was aware of Rowland’s temper, it placed Ms. Levesque with him to be trained
and when she complained about his temper took no action because the grievor did not
request any. It points to the minimal to nonexistent management presence after Mr.
Carbert left, and contends that management effectively ignored the unit, leaving Mr.
Rowland effectively in charge. It contends that there was no training about sexual
harassment and that management set no boundaries in regard to appropriate office
53
behaviour. It notes that it was Ms. Levesque’s complaint which revealed that a poisoned
work environment existed within the unit and yet she was discharged as a result.
The Union also argues that this is not an appropriate case for payment in lieu of
reinstatement as suggested by the Employer. Relying on Ontario Liquor Board
Employees’ Union (Massa) and Ontario Liquor Control Board of Ontario (2000), GSB
No. 2033/97(Abramsky, Vice-Chair), the Union argues that the relevant factors which
show that an employee should not be reinstated are absent in this case.
Instead, the Union asserts that the grievance should be upheld, the grievor should be
reinstated with full back pay and benefits, and that general damages of $5000.00 to
compensate the grievor for sexual harassment should be awarded.
DECISION
This is an extraordinarily difficult case to decide because it is very difficult to
determine what actually happened between Levesque and Rowland, particularly in
Maryland. But a decision must be made, and for quite a variety of reasons, I conclude
that there is clear and convincing evidence that the allegations made by the grievor were
false and that she complained in order to achieve a more secure job or a job upgrade.
54
Without question, this case turns on credibility. Most of the allegations made by
Ms. Levesque were denied by Rowland and vice versa. In Faryna v. Chorney, supra at p.
356, the Court held as follows (citations omitted):
The credibility of interested witnesses, particularly in cases of conflict of
evidence, cannot be gauged solely by the test of whether the personal
demeanor 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
those conditions.
In OPSEU (McGowan) and Ministry of Community and Social Services), supra,
the Board adopted the Faryna test quoted above, and also cited R. v. Pressley (1949) 1
W.W.R. 692, at p. 9, as follows:
The most satisfactory judicial test of truth lies in its harmony or lack of
harmony with the preponderance of probabilities disclosed by the facts
and circumstances in the conditions of the particular case.
In this case, the grievor’s testimony was often emotional and heartfelt. She
repeatedly “swore to God” that she was telling the truth. Unfortunately, much of Ms.
Levesque’s testimony is simply inconsistent with the probabilities affecting this case as a
whole. Overall, it lacks “harmony with the preponderance of probabilities.”
A number of things are significant to my conclusion. First, the grievor is a
mature, relatively sophisticated individual who had previous experience in relation to
sexual harassment claims and grievances. She was not a young, naïve individual in her
first job. She was definitely not in awe of Mr. Rowland, or scared to voice her concerns
55
and issues to management. When she had a problem, she complained and often grieved it.
In fact, it was a grievance that led to her secondment in the Safety Net Unit. Throughout
her time in the Safety Net Unit, she was clearly capable of complaining, knew how to
complain and knew how to file grievances, including grievances alleging sexual
harassment. In fact, she did complain about quite a number of things to management
during the relevant time period – her lack of a position specification, Mr. Rowland’s
temper, her workload – but NOT the alleged ongoing, serious sexual harassment by Mr.
Rowland.
In this regard, although the evidence demonstrates a distinct lack of management
presence in relation to the Safety Net Unit after Mr. Carbert left in July 1996, the grievor
was clearly aware how to find a manager when she needed one. This is evident from her
seeking approval for a D-Base training course from Mr. Beatty, a manager, in January
1997. She was also well aware of the public service’s use of “acting” managers and
although Mr. Goodale was not her regular manager, she knew or surely ought to have
known that he was her acting manager starting in February 1997 or thereabout. While he
may have told her in August 1997 when she asked him about her position specification
that he was not her “manager”, he was clearly her acting manager and she was aware of
that. Also, as noted, she complained to management about other matters during this time.
Ms. Levesque was also well aware of the importance of timely filing sexual
harassment complaints. In February 1996, her complaint before the Ontario Human
Rights Commission was dismissed, in part, because of delay in filing her claims, and this
56
was fully set out in the Commission’s case analysis report which she read at the time.
Accordingly, when the events occurred in Maryland in June of 1997 and in Centralia in
January of 1998, she knew that such matters had to be reported in a timely manner but
she did not report them.
Ms. Levesque’s assertion that she did not complain because she felt she could
“handle” Rowland by saying “no” rings hollow after Centralia. It may have been
plausible after Maryland, the first alleged sexual assault and proposition, but not after
Centralia. After Centralia, when Rowland again allegedly assaulted and propositioned
her, the grievor’s assertion that she thought she could handle him by saying no is just not
plausible. If her testimony is to be credited about what occurred, Rowland clearly did not
get it that “no means no.” Yet incident after alleged incident occurred thereafter and
many, many months went by before the grievor reported anything to management.
It also appears that Ms. Levesque’s explanation for not reporting these incidents
to management was not entirely consistent. She told Dora Cortellucci that she would not
report Rowland because of an earlier, stressful sexual harassment complaint and because
she was afraid of her husband’s reaction. She did not mention being able to handle Mr.
Rowland. At the hearing, she mentioned the earlier complaint and repeatedly stated that
she thought she could handle Rowland by saying no. She did not mention concern about
her husband’s reaction. To the investigator, she said that she felt that management would
not do anything about it and mentioned her earlier complaint. She did not tell the
57
investigator that she thought she could handle Mr. Rowland by saying “no.” She did not
mention her concern about her husband’s reaction.
In addition, Ms. Levesque’s explanation that she did not report the grievor’s
sexual assaults to management in August 1998 because she was “embarrassed” does not
ring true. She was quite comfortable discussing intimate sexual stories with male
colleagues, so it is difficult to credit that she would be embarrassed to report these alleged
assaults to management.
A fact that is very damaging to the grievor is the fact that she had a full
opportunity to report what occurred to Mr. Goodale and Mr. Beatty in late April 1998. At
the hearing, Ms. Levesque testified that “because of these incidents” of sexual harassment
by Rowland, she “was getting upset” with him and in May 1998, when she saw Beatty,
she asked for a meeting with management. But when the meeting took place, she did not
complain about Rowland’s sexual assaults or harassment. Instead, she complained about
Rowland’s irritability due to his prostate problems and told them that the demands of her
job duties between Safety Net and office administration were too much for her to handle.
This meeting was a private one with management – a perfect opportunity to report
Rowland’s inappropriate behaviour.
The outcome of this meeting is even more difficult to understand in light of the
grievor’s assertions of sexual assault and harassment. At the meeting, Mr. Goodale and
Mr. Beatty gave the grievor three options to address her concerns: (1) return to her home
58
position, (2) work 100% on office administration or (3) work 100% with Mr. Rowland on
Safety Net. Ms. Levesque chose option #3, to work 100% of her time with Mr. Rowland,
the colleague who was sexually assaulting and harassing her. Thus, not only did Ms.
Levesque fail to report what had been happening for the past year, but she put herself in a
position whereby she would be working even more closely with the alleged harasser.
This decision is hard to reconcile with her allegations of harassment.
The Union suggests that the grievor’s choice and decision not to report Rowland
make sense in light of the grievor’s desire to be trained on Safety Net. The evidence
clearly shows that the grievor took her conversation with Mr. Carbert in July 1996 to
heart. At that time, he told her that if she took initiative and learned about Safety Net
from Rowland, it would be good opportunity for her to advance when Rowland retired in
a few years. The evidence showed that Rowland did train her on Safety Net, suggested
computer courses she should take, provided her with a computer to take home with
various programs, and suggested she attend the training program in Maryland. He also
agreed that she could participate in learning the instructional aspect of the job in
Centralia. But the record is decidedly unclear what additional “training” on Safety Net
she expected or wanted from Rowland after April 1998. Aside from some special projects
he was working on independently, there is no evidence that he denied her any training she
requested.
There is no question that the grievor truly aspired to Rowland’s job. That
aspiration explains a lot of the grievor’s behaviour. It explains why she rejected
59
Goodale’s proposal that she should apply for the vacant OAG-8 position on August 21,
1998. She thought that by applying for another job she was precluding any possible
position in Safety Net. Unfortunately, it also explains why, when she learned that
Rowland had delayed his retirement until 2002, she sought another avenue to obtain
advancement.
The evidence clearly shows that the grievor knew, on August 21, 1998, when she
reported the alleged sexual harassment to Goodale that Rowland had delayed his
retirement. Instead of 1998 – the “few years” that Mr. Carbert had indicated – it was now
to be 2002, four years later. Her knowledge of that fact on August 21st is established by
Mr. Goodale’s notes of their meeting on August 21st, which were written on August 24,
1998, a full day before the grievor testified that she learned about it. Given her statement
to Goodale on August 21, it is not possible that the grievor learned about it on August
25th. Accordingly, she knew, at the time she reported Mr. Rowland’s actions, that he had
delayed his retirement date.
The grievor also fully realized that Rowland was not in a position to give her his
job when he retired. She fully realized that the position would be posted and there would
have to be a competition for it. As a result, her statement to Goodale on August 21, 1998
that Rowland had promised her his job in exchange for sexual favours makes no sense.
Likewise, her loud and heated accusation to Rowland on August 25, 1998 that he had
promised if she “slept with him she would get his job” makes no sense. As a long service
public servant she knew how the system worked. She knew that a bargaining unit
60
employee like Mr. Rowland had no say about who would succeed him upon retirement.
Even Dora Cortellucci testified that she heard the grievor ask Rowland who would get his
job when he retired and Rowland replied that management would have a competition and
they “would hire whomever they want.”
A. The Alleged Incidents of Sexual Assault and Harassment
1. The Maryland Bikini Incident
The overall context recited above colours my review of the testimony of Ms.
Levesque and Mr. Rowland concerning the bikini incident. Although I do not find it
strange that someone would carry a hard glass – empty or full - that she had brought to a
pool area back to her room, or even walk through a hotel clad only in a bikini, there are a
number of inconsistencies in the grievor’s story that undermine her credibility.
First is the change in her testimony about whether the glasses were full or empty.
On cross-examination, she was specifically asked whether they were carrying the glasses
“because they had Pepsi in them?” and she responded “yes.” A short time later she stated
that the glasses had “no Pepsi in it.” It is difficult to attribute this change to the grievor
having English as a second language. The first question posed was quite clear, as was her
response. It is also a significant change in light of her allegation that Rowland pulled her
bikini top so hard that she was physically pulled into the room. It would be logical that
any liquid in the two glasses, or the glasses themselves, would have gone flying if they
contained Pepsi, yet no mention of that was made to the investigator or on examination-
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in-chief. Also damaging was her testimony that she did not know where Rowland’s room
was as they entered the hotel from the pool, but her later stating that she was taking the
glass to the table where they had obtained them which was past Rowland’s room. Either
she knew where his room was or she did not.
I also find it difficult to believe that the grievor would agree to have dinner with
Rowland a few hours after this assault. He allegedly not only forcefully pulled open the
top of her bikini but also pulled open the bottom. Yet, a few hours later she agreed to
have dinner with him, and she had all of her meals with him after that. I found no
evidence that she was “compelled” to have dinner with him, as she asserts. Her
explanation that she felt she had to have dinner with him because she “owed him a drink”
from the night before is not plausible. I also find the Union’s explanation that this was
her first out of town business trip and she did not know anyone else insufficient to
explain her actions. Surely she could have declined to eat with him on that occasion or
thereafter.
Similarly, I find her allegation about the last day of the Maryland trip undermined
by her subsequent conduct. Her contention that he agreed to speak to management about
a job upgrade if she would sleep with him (i.e., “take care of the boss”; “rent a room”) is
undermined by her accepting a ride home from him from the airport. It is implausible
that after the bikini assault, followed by an inappropriate sexual proposition, that she
would, on the same day, accept a ride home with him alone in his car. It also seems
unlikely that he would suggest that they rent a room, as she alleged, after spending five
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days in Maryland, having just checked out and while waiting for the shuttle bus to take
them to the airport.
Could these things have happened? Yes, it is conceivable. The evidence showed
that Rowland and Levesque had an unusual work relationship, one filled with joking,
including sexual jokes, and touching. The grievor is an outgoing, gregarious person and
she enjoyed being “one of the boys.” Further, Rowland testified to two sexually related
episodes in Maryland which the grievor flatly denied. It is possible that Rowland
“playfully” pulled on her bikini. It is possible that he told her she would have to “take
care of the boss”. Her flippant reply that in that case, she “would die an OAG-7” seems
consistent with their type of banter. But the way it was alleged to have occurred – as an
unwanted, unwelcome sexual assault, which left her shaken and upset and as an improper
sexual proposition – is not plausible or credible.
2. Centralia
The grievor’s evidence regarding Rowland’s conduct in Centralia in January 1998 is
substantially weaker than her evidence about Maryland. Whereas it is difficult to
determine precisely what occurred in Maryland, if anything, there is no support for her
allegations in Centralia. Peter Dodsley, an independent witness, could recall nothing out
of the ordinary about their visit. He testified that he would have clearly been able to hear
it if she had shouted out as she claimed.
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I find it highly implausible that Rowland would try to force the grievor into his
room in the presence of Mr. Dodsley. It is also hard to credit that the grievor would
rejoin the two men immediately after this incident, say absolutely nothing and act as if
nothing happened. The grievor’s explanation for that was that Dodsley “knew Barrie
tried to push me into his room.” But that makes no sense. If he knew, he would not have
acted as if nothing had happened. As Dodsley testified, he would have “intervened if
something inappropriate was going on, of course.”
In addition, the grievor again accepted a 3½-hour ride home alone with Rowland
when the session was over. Despite her assertions about what occurred in Maryland,
followed by this latest sexual assault in Centralia, she did not report it and made no
attempt to find alternative transportation.
In terms of the grievor’s assertion that on their way home from Centralia,
Rowland repeatedly asked her if she wanted to stop at a hotel and sleep with him, I find
that the grievor’s subsequent conduct undermines her claims. After the alleged Maryland
incidents, followed by what allegedly occurred in Centralia, it is hard to believe that the
grievor did not report anything to management and that she would choose to work more
closely with him. The evidence showed, moreover, that even after Centralia, their sexual
joking and banter continued.
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In my view, the grievor’s maturity, seniority and prior experience with sexual
harassment complaints and grievances distinguishes this case from those cited by the
Union. In Canadian National Railway Co. and Canadian Brotherhood of Railway,
Transport & General Workers, supra, the two female complainants were “young and
relatively new employees.” Both were very young and had been on the job less than four
months when the alleged sexual misconduct by their supervisor occurred. The most
serious alleged incidents occurred on October 3rd and 10th and were reported to
management on October 15th. At the hearing, the Union relied on the fact that neither
complainant raised any immediate “hue and cry” when they were first subjected to
physical advances by the grievor and that when words of a sexual nature were openly
addressed to them in the office they simply laughed rather than raise any objection.
Arbitrator Michel Picher wrote, at p. 199:
In the arbitrator’s view it is neither implausible nor unlikely that the first
reaction of some women to overt sexual harassment might be silence.
Silence can be the natural consequence of a woman’s fear of
embarrassment at the thought of publicizing an unpleasant and humiliating
experience. It can also be motivated by a natural fear of reprisal or the
possibility of charges of lying for ulterior motives or having provoked the
male employee by conduct that invited sexual advances.
Similarly, great care should be taken before characterizing a female’s
laughter in the face of overt sexual comments or teasing as acceptance or
encouragement of such conduct. For men and women alike, laughter can
be a ready shield for a number of awkward situations. The arbitrator
accepts the evidence of [the complainant’s] that when they laughed in
response to the sexual comments which [the grievor] and others directed
to them, they did so largely because, as relatively junior employees who
were in a distinct sexual minority in the crewing office, they did not know
what else to do.
Unlike the complainants in Canadian Railway, Ms. Levesque is a mature, senior
employee and worked in an office where many women worked. She is not shy, nor did
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Mr. Rowland intimidate her. She did not wait just days to report what occurred, she
waited more than a year. Unlike the complainants in Canadian Railway, she knew what
else she could do.
In Piazza v. Airport Taxi Cab (Malton) Association, supra, the Board of Inquiry
determined at p. D/3200 that “the fact that [the complainant] continued to consent to
drive in the car with the Respondent…despite his advances, raises the suspicion that [his]
advances were not unwelcomed.” Nevertheless, in the end, the adjudicator found that the
respondent’s “outright denials to be incredulous” and accepted the complainant’s
testimony over that of the respondent’s. In this case, the grievor’s continuing silence, her
decision to accept rides from the grievor and to work even more closely with him
likewise “raise the suspicion” that whatever occurred was not unwelcome. But in
contrast to Piazza, I find that I cannot accept the grievor’s testimony over that of Mr.
Rowland. Much of it simply cannot be squared with what one would expect of a person
of Ms. Levesque’s maturity, experience, seniority and history.
In addition, overall, I generally found Mr. Rowland’s version of events to be more
credible than that of the grievor, even though I do not accept all of Rowland’s testimony.
As noted by the Board in OPSEU (McGowan) and Ministry of Community and Social
Services, supra at p. 9: “It goes without saying that where the testimony of two interested
witnesses is in direct conflict, it is not necessary that the testimony of one be found to be
credible in every particular before it may be accepted over that of the other.” Overall, he
was candid about their interactions and events, including some which did not reflect well
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on him. Also, at the hearing, he had no motive to lie. By that time, Rowland had retired
and there was no action the Employer could have taken against him had he admitted to
the events as described by Ms. Levesque.
Significantly, with the limited exception of some testimony by Ms. Cortellucci,
the grievor’s testimony was not supported or corroborated at all, even though some of the
events alleged took place at work or in the presence of others. Yet not one witness was
called to support Ms. Levesque’s allegations. I find this nearly complete lack of
corroboration of the grievor’s testimony to be quite damaging, particularly in light of all
of the other factors which undermine her credibility. In particular, the absence of any
supporting testimony by Sandy Pennycock, who the grievor testified urged her to report
Mr. Rowland and told her that she was “sick and tired of listening to him abuse you…”,
is very damaging. In contrast, Rowland’s testimony was supported by others, including
Peter Dodsley, Dave Allen, William Cann and, to a significant degree, Dora Cortellucci.
3. Rowland foot on crotch in May and June 1998.
While the evidence establishes that Rowland improperly placed his foot on the
grievor’s buttocks in May of 1998, it does not support that he lifted her up by his foot,
startling her so that she hit her head. Further, the evidence demonstrates that this incident
was an example of the type of interaction that existed between Levesque and Rowland.
In terms of the June incident, I credit Rowland’s version over that of Levesque. The
second incident occurred in the data entry area in the presence of three other operators,
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including Dora Cortellucci. Ms. Levesque testified that she “yelled out” when Rowland
touched her, but there was no corroboration of that assertion. Ms. Cortellucci saw Ms.
Levesque go under the desk and only heard Rowland make a “smart alicky” remark
which could well have been his statement that “remember last time you got a boot in the
ass.” I find it implausible that Rowland would have placed his foot, as alleged, in the
presence of three data entry operators. Also, if she had “shouted out” as asserted,
someone should have been able to corroborate that.
It is also damaging to the grievor’s testimony that she saw Mr. Goodale as she
came out of the bathroom after this incident and Goodale asked what the matter was, but
did not tell him. Again, there was an opportunity to report what occurred to management
and the grievor did not take it. Even if she was upset at that moment, she could have
reported it to him later.
Finally, if the first incident was so unwelcome, it is odd that the grievor, just a few
weeks later, would put herself in exactly the same position. As counsel for the Employer
stated in argument, there are many other ways to get under a table to insert an electrical
plug.
4. Attempt to touch the grievor’s breasts.
I do not credit this assertion by the grievor. I find it highly implausible that Rowland
would attempt to assault the grievor in this manner in mid-day, in the middle of the
office. The partitions were only five feet high and others were in close proximity, easily
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able to hear a shout. I also find it difficult to understand, if this occurred, why she did not
immediately inform management since she testified that this was the “last straw” and she
finally realized that Rowland did not understand that “no” meant “no.”
Ms. Levesque explained that she did not immediately report it because she was upset
at the time. But even after she calmed down, she did not report it. Nor did she report it
the next day when she told Mr. Goodale that Rowland had been sexually harassing her.
She never mentioned this assault, or indeed, any of the assaults. Her explanation that she
was embarrassed is simply not credible. She told Goodale that Rowland had promised
her his job in exchange for sex, but she did not tell him about any of the sexual assaults,
including one that allegedly occurred the day before and which prompted her to report
Rowland’s actions. It simply and sadly does not ring true.
B. Other Alleged Incidents of Harassment
A number of the grievor’s allegations of harassment center on Rowland’s
treatment of her when she made mistakes. Specifically, she alleged that in October 1996,
Rowland humiliated and intimidated her after she made an error on the computer while
making entries into the “shipper overload project”; that in February 1998, Rowland
prevented her from making entries into the computer and threatened to changed the
password; that in April 1998, Rowland swore at her and called her “dopey”.
The evidence showed that Rowland had a temper, particularly when someone
made a mistake. Rowland acknowledged this, although he minimized the extent of his
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temper. But others, particularly Dora Cortellucci and Dave Allen, testified that Rowland
had a quick temper and would often yell at people. The evidence showed, however, that
this was not solely directed at the grievor but was basically Rowland’s way of operating.
He yelled at the grievor, he yelled at Dora and he yelled at others. The evidence does not
establish that Rowland yelled at the grievor “because” of her gender or sex. It should
also be noted, according to the grievor, Rowland began to “be harsh” with her in October
1996, well before the Maryland trip.
The working relationship between the grievor and Mr. Rowland appears to be
somewhat akin to the one cited by the Employer in Re Canadian Union of Public
Employees and Office and Professional Employees’ International Union, Local
491(1982), 4 L.A.C. (3d) 385 (Swinton). In that case, the grievor attributed their
difficulties to her refusal to comply with sexual demands and to discuss sexual matters,
but the board of arbitration concluded that the difficult working relationship arose “from
working styles and personality problems”, and was “not sexual harassment.” The
grievor, the Board found at p. 402, was “an intelligent, articulate, highly analytical
person, proud of her work and performance and frustrated by H’s criticisms, lack of
appreciation, and inconsistent orders.” Although there was evidence that H was “a
difficult person to work for”, it found that “the grievor is not without blame in H’s
reactions to her.” The same is true here.
The evidence also showed that use of the “f” word was quite commonplace at
work by both Rowland and the grievor as was use of the terms “dopey” and “grumpy”
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and that all of it was said in a joking manner. The grievor never told Rowland that she
was offended by use of the “f” word or the term “dopey” or asked him to stop calling her
that. Instead, she called him “grumpy”. Under these circumstances, Rowland’s swearing
at her and calling the grievor “dopey” does not constitute sexual harassment or
discrimination.
In terms of the February 1998 incident, the evidence shows that the grievor was
not precluded from making data entries, only that she had to use the designation “TEO”
instead of “ISO”. The grievor’s assertion that Rowland threatened to change the
password if she continued to err was not supported by any corroborative testimony. Nor
did he, in fact, ever change the password.
In terms of the grievor’s allegation that in March 1998, he told her that she had to
learn how to program various computer software on her own time, as he had, and she was
to do it right. Accepting this testimony as true, it does not establish discrimination on the
basis of sex or sexual harassment.
Similarly, there is no corroborating evidence that Rowland told the grievor that
her stepfather “deserved to die” even though this was said in the presence of witnesses.
Further, even if it had been said, as alleged, it does not constitute discrimination on the
basis of sex or sexual harassment.
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There is no evidence that Rowland misled the grievor about the course content in
Maryland. On the contrary, the grievor’s own admissions establish that he tried to select
courses that would be beneficial to her. If the courses turned out to be less than she had
hoped, it was not due to Rowland’s choices, which the grievor was free to revise.
There is no corroborative evidence that in June 1998 when new partitions were
installed that Rowland told Ms. Levesque that he could now do anything he wanted to
her. The testimony of Dora Cortellucci supports the testimony of Rowland about what he
said – that the partitions would offer the data entry operators more privacy and less
distraction from passers-by.
The evidence supports the allegation that Rowland told the grievor, in May or June
1998, to hire better-looking temporary employees from the agency if she could. Rowland
admitted this to the investigator, although at the hearing, he said another employee, Don
Covello, had said this to him as a joke which he then repeated to Ms. Levesque. I
conclude, however, that this was said in a joking manner typical of the kind of
interactions between them. It was not an “order” that was expected to be fulfilled. There
is no evidence that either the grievor or Rowland had any control over, or input into, who
the temporary agency would send.
As to the remaining allegations, I find that they have not been established. A lot of
what occurred was consensual in nature and the grievor was an equal and willing
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participant. The evidence does not support the conclusion that she was a victim of
unwanted, unwelcome and unsolicited sexual advances and inappropriate comments.
C. Bad Faith
The letter of discharge states that the grievor was discharged because the ministry
concluded that she “file[d] this complaint in bad faith” in that the filing “was directly
related to your desire for ‘a job/upgrade.’” Given the seriousness of the charge, the
Ministry must establish this by clear and convincing evidence.
I conclude that Ministry has sustained its onus. There is a great deal of evidence that
the grievor used the complaint process in order to secure a more secure job/upgrade.
There is no question that the grievor took her conversation with Mr. Carbert in July
1996 to heart and that, from that point on, she wanted to replace Rowland when he retired
“in a few years.” To that end, she sought to learn as much as she could about Safety Net
and what Rowland did so that when he retired, she would be in the best position to
compete for the job. Her desire to advance by obtaining Rowland’s job when he retired
was keen. For two years, this was her goal.
She clearly understood, however, that Rowland did not have the authority or ability to
give her the job. Accordingly, her allegation to Mr. Goodale – that Rowland had
promised her his job in exchange for sexual favours – alleged something that she knew
could not be true. Rowland had no authority to “promise her his job” and she was well
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aware of that. Significantly, she did not refute that she had said this to Mr. Goodale.
Also significantly, none of her specific allegations against Rowland assert that he had
promised her his job in exchange for sex. The closest one was his alleged proposition
that if she wanted him to speak to management about a job upgrade, she would have to
“take care of the boss.” Accordingly, her assertion to Mr. Goodale that Rowland had
promised her his job in exchange for sex was something new and different from what she
has alleged occurred. So, too, was her heated accusation to Mr. Rowland on the morning
of August 25th.
It is also reasonable to conclude that when the grievor made her heated accusations to
Mr. Rowland on the morning of August 25th, she did so knowing that others would be
able to hear her. While their conversation, itself, was not planned by Ms. Levesque but
instead escalated as it went on, what she shouted at him – that he promised her his job if
she would sleep with him – was likely planned. There is no other explanation for why
she accused him of that when it was different from what she asserts actually happened.
Her allegations center on sexual assaults, propositions and harassment. But with the
exception of a job upgrade, there was no assertion that Rowland tied those actions to
promises of his job. Yet that, very clearly, was what she accused him of on the morning
of August 25th. Mr. Cook’s evidence, as well as that of Mr. Rowland, was that Ms.
Levesque told Rowland that he had promised her his job if she would sleep with him.
The evidence also shows that the grievor told William Cann, sometime in 1998, in the
context of her unhappiness with her continuing uncertain job status, that she had “a sure
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fire way of getting a job.” This comment was not refuted by the grievor, nor explained.
The absence of any explanation, combined with the fact that it was cited in her
termination letter as proof of bad faith, leads me to conclude that (1) in fact, it was said
and (2) she was talking about claiming sexual harassment. In 1991, she had filed a sexual
harassment and a job classification grievance that was resolved through a job upgrade.
The timing of the grievor’s complaint also points to an improper motive. She finally
reported Mr. Rowland’s actions to management shortly after she learned that Mr.
Rowland was not retiring as she anticipated, but was waiting four more years. The
evidence was that she had “recently” learned that Rowland was not going to retire until
2002 when she reported that he had been sexually harassing her.
The grievor delayed reporting any of these incidents until she learned about Mr.
Rowland’s change in plans even though she was well aware of the importance of timely
filing. At all relevant times, she was aware of her rights under the collective agreement
and the Ontario Human Rights Code as well as the Workplace Discrimination and
Harassment Policy. Yet she chose not to pursue them. As determined above, I do not
credit the grievor’s explanation that she reported them only after Mr. Rowland tried to
touch her breasts and she realized he did not understand the word “no.” Instead, I
conclude that she reported sexual harassment shortly after she learned that Rowland was
not going to retire.
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Further, once she complained, the grievor’s focus was on improving herself within
the Safety Net Unit. The relief sought on her sexual harassment grievance was not only a
“harassment-free workplace” but also to “maintain career advancement and opportunities
as previously discussed.” At the same time she filed the sexual harassment grievance, she
also filed a grievance pertaining to her lack of a position specification. The suggestion by
Mr. Goodale that she apply for the OAG-8 position was turned down by Ms. Levesque
because she thought it would eliminate any possibility of her advancing within the Safety
Net unit. For the same reason, she turned down the option of returning to her home
position during the investigation. In addition, during the investigation, the grievor sought
training in Mr. Rowland’s job functions. The evidence demonstrates that the grievor was
very keen on advancing into Mr. Rowland’s position and sought to use the complaint
process to that end.
In reaching my conclusion, I do not rely on the proposal presented by the grievor to
Mr. Goodale, which would have placed the grievor into an OAG-8 position. This is
because it was clearly only a temporary measure to remove her from an allegedly
poisoned work environment, not as a permanent assignment. While it may have been
surprising to have Ms. Levesque present a formal, typed agreement at the meeting, its
content demonstrates that it was a temporary measure only.
Accordingly, based on all of the evidence presented, I conclude that there is clear and
convincing evidence that Ms. Levesque pursued a claim of sexual harassment against Mr.
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Rowland in order to obtain a more secure position within Safety Net or a job upgrade. I
also conclude that this constitutes cause for discharge.
Sexual harassment of one employee by another is wrong and has no place in the
Ontario public service. It is also unlawful under the Ontario Human Rights Code and is
prohibited under the parties’ collective agreement. Section 22.10.1 of the Agreement
states that “[a]ll employees covered by this Agreement have a right to freedom from
harassment in the workplace because of sex by his or her Employer or agent of the
Employer or by another employee. Harassment means engaging in a course of vexatious
comment or conduct that is known or ought reasonably to be known to be unwelcome.”
Accusing someone of sexual assault and harassment is also a very serious matter. As
stated by Arbitrator Picher in Re Canadian National Railway Co. and Canadian National
Railway, Transport & General Workers, supra at p. 194-5:
[A]ccusations of sexual harassment are among the most devastating in
their consequences for the employee accused, for the accusers and for
employees and management alike who can be drawn into an intense and
divisive process of acrimony and side-taking. A case of alleged sexual
harassment is fraught with difficulty for company and union alike.
Management, on the one hand, must take the greatest care to avoid false
accusations that may wrong an employee of previous good service, cost
that employee his or job security and tarnish an individual’s reputation not
only within, but also outside the work place. When, as in this case, the
accused and accusers are co-members of a single bargaining unit, the trade
union is cast in the invidious position of generally espousing principles
which deplore sexual harassment while at the same time vigorously
defending an accused employee who proclaims innocence and is entitled
to fair representation by his union .… Such disputes are fought with little
joy.
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Because of the nature of the accusation and the devastating consequences that it has
not only on the individual accused but on the workplace as well, false allegations of
sexual harassment cannot be tolerated. The complaint process, designed to protect
employees against harassment and discrimination, cannot be misused to achieve an
ulterior purpose.
In this case, for the reasons set forth above, I conclude that there is clear and
convincing evidence that Ms. Levesque complained of sexual harassment by Mr.
Rowland in order to secure a more secure position within the Safety Net unit. It was the
“sure fire way of getting a job” that she had mentioned to Mr. Cann.
There is some danger, as counsel for the Union argues, that upholding the grievor’s
discharge might have a chilling impact on the filing of sexual discrimination/harassment
claims. It could be viewed as endorsing the view that if one’s allegations of sexual
harassment prove unfounded then one may be accused of falsely filing a complaint and
discharged as a result. My conclusion, however, that filing a complaint in bad faith is
cause for discharge should not be construed in that manner. There is a profound
difference between concluding that a claim, on a balance of probabilities standard, is
unfounded and a conclusion that a claim was filed in bad faith. Bad faith requires an
improper motive. It is entirely different than a finding that the claim could not be
sustained. The grievor was not discharged for filing a claim that could not be
substantiated on a balance of probabilities. She was discharged for filing a claim in bad
faith.
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The grievor was also discharged because she engaged in “inappropriate behaviour in
the workplace which contributed to a poisoned work environment.” Although I conclude
that the grievor did engage in inappropriate behaviour in the workplace which contributed
to a poisoned work environment, I do not conclude that the Employer can properly rely
on this as a basis for the grievor’s termination. There are two reasons for this conclusion.
First, management had a responsibility to manage the Safety Net unit which it did not
fulfill. From the time Mr. Carbert left, the Safety Net unit was largely left to itself.
Although the acting manager was available had the grievor chosen to seek him out, as she
did on occasion, there was no regular, ongoing management presence after Mr. Carbert
left. This conclusion is not to criticize Mr. Goodale who appears to have had two jobs at
the same, very busy, time, or Director Weir. The fact remains, however, that management
was not aware, as it should have been, of the poisoned work environment that existed
within the Safety Net unit. As counsel for the Union argues, no proper boundaries were
set and that led to the creation and continuation of a poisoned work environment.
Secondly, there is a significant disproportion in the penalty imposed on the grievor
and that of Mr. Rowland. Mr. Rowland received a four-day suspension for engaging in
inappropriate workplace conduct.
Although I have concluded that management cannot rely on the grievor’s
inappropriate workplace conduct to support its termination of the grievor, I still conclude
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that management had cause to discharge the grievor solely on the basis that she filed her
complaint in bad faith. This misconduct, standing alone, constitutes cause for discharge.
c. Is there a basis to substitute a lesser penalty in all of the circumstances?
Under Section 48(17) of the Labour Relations Act, where an arbitrator determines
that an employee has been discharged by an employer for cause and the collective
agreement does not contain a specific penalty for the infraction, the arbitrator may
substitute “such other penalty for the discharge or discipline as to the arbitrator… seems
just and reasonable in all the circumstances.” Accordingly, because I have concluded
that the grievor has been discharged for cause, I must still determine if another penalty
“seems just and reasonable in all the circumstances.” For the reasons set forth below, I
conclude that a very lengthy suspension is “just and reasonable in all the circumstances.”
A major reason to mitigate the penalty here is the fact that management played a role
in creating some of the circumstances which led to the grievor’s frustrations on the job.
Her ten-week secondment was continued indefinitely, without any formal action or
timetable. Just as she did not speak to management about returning to her home position
when it arrived in St. Catherines, neither did management speak to her. Her repeated
efforts to obtain a position specification were rebuffed because the managers she
approached – Mr. Beatty and Mr. Goodale - were “acting” managers and told her to wait
for a new manager to come in and assess the situation. Further management, as found
above, was often absent which allowed a poisoned work environment to develop and
continue within the Safety Net Unit.
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The Union also argues that the training provided in sexual harassment was
inadequate. The evidence on the level and scope of training is a bit unclear. It appears
that documents outlining the policies were provided to employees, but not that there was
a formal training session attended by staff. In my view, documents alone are not
sufficient.
Another important reason is the grievor’s lengthy service with the Government. She
was hired on October 6, 1980 and had, at the time of dismissal in 1999, almost nineteen
years of service. Equally important, her work record was discipline-free. Those two
factors weigh heavily in determining what is “just and reasonable in all of the
circumstances.”
The Employer argues, however, that Ms. Levesque has not backed down; she has
stood her ground. She has not admitted that she made it up. Her conduct was, and
remains, in its submission, a deliberate attempt to deceive, effectively destroying the
employment relationship. It submits that she should not be restored to employment and,
in the alternative, suggests payment in lieu of reinstatement.
Although I am very troubled by the grievor’s lack of remorse, at the hearing she
clearly appeared to believe what she alleged. For all of the reasons set forth above, I
concluded that as a matter of legal “fact”, the incidents alleged did not occur and that she
filed her claim in bad faith. Based on credibility determinations in light of the
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surrounding circumstances and probabilities, I determined that the incidents she cited did
not occur as alleged and that she filed her claim bad faith. But I also noted that some of it
was conceivable, particularly given the type of interactions in which she and Mr.
Rowland regularly engaged. Some of it could have happened, even though not in the
unwelcome manner alleged, which may explain, in some part, her adamancy.
I also think that despite her adamancy, the grievor will have learned an important
lesson by the imposition of another penalty. It has been a long time since her discharge
and a lengthy suspension should clearly make the point that the complaint process is not
to be improperly used. Rehabilitation of the grievor, in other words, is possible.
The seriousness of her misconduct, however, warrants a very lengthy suspension. In
this case, it should be the time from her discharge until the end of the arbitration hearing.
Such a lengthy suspension should be sufficient to bring the message home that such
misconduct cannot be tolerated and also serve as an effective deterrent to similar cases.
Another important factor in my determination that a lengthy suspension is appropriate
is my conclusion that restoration of the working relationship is possible and that
reinstatement of the grievor will not be unduly disruptive to the workplace. I conclude
that with the retirement of Mr. Rowland, and with a more active management presence, a
working relationship may be restored. There is also a need for some additional education
by the grievor in the WDHP policy and appropriate office behaviour.
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I do not believe, as counsel for the Employer contends, that payment in lieu of
reinstatement is an appropriate remedy in this case. That remedy is an “exceptional
remedy” when an employer has not established just cause but contends that the employee
should not be restored to employment. Here, I conclude that there was cause to discharge
the grievor but that a lesser penalty is “just and reasonable in all the circumstances.”
In addition, I do not find the relevant factors to warrant pay in lieu of reinstatement to
be present in this case. Pay in lieu of reinstatement is appropriate only when
reinstatement is not a viable alternative. As set forth in Re Dehavilland Inc. and
Bombardier Aircraft Division and CAW Canada, Local 112, unreported decision of
September 10, 1999 (Rayner) quoted in Ontario Liquor Boards Employees Union
(Massa) and Liquor Control Board of Ontario, supra at p. 70, the relevant factors are as
follows:
1. The refusal of coworkers to work with the grievor.
2. Lack of trust between the grievor and the employer.
3. The inability or refusal of the grievor to accept responsibility for any
wrongdoing.
4. The demeanor and attitude of the grievor at the hearing.
5. Animosity on the part of the grievor towards management or
coworkers.
6. The risk of a “poisoned” atmosphere in the workplace.
In my view, most of these factors are not present in this case. There is no evidence
that the grievor’s coworkers will not work with her. On the contrary, Ms. Levesque
appears to have been generally well liked at work. She did accept responsibility for her
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actions (putting panties on her head, telling Rowland he was “well-hanged”, etc.) and
admitted to many things. She denied that certain things took place but that is not the
same thing as refusing to accept responsibility. Her demeanor and attitude at the hearing
did not indicate that a working relationship could not be restored. She did not appear to
harbor animosity toward management or her co-workers, with the exception of Mr.
Rowland who has retired. With additional training in workplace discrimination and
appropriate office demeanor and a more active management presence, the return of the
grievor should not create a risk of creating a “poisoned” atmosphere at work.
The one factor that is present is a lack of trust between the grievor and the employer.
But this is not a situation in which trust cannot be restored. Hopefully this decision will
go a long way to help the grievor understand why her allegations against Mr. Rowland
were not believed and why it was concluded that she misused the complaint process. The
lengthy disciplinary suspension on the grievor’s record should ensure that there will be
no repetition of such an occurrence. Restoration of trust on the part of both parties will
take time and effort but I do think it is possible.
Accordingly, for all the forgoing reasons, I conclude as follows:
1. There was clear and convincing evidence that the grievor’s allegations of sexual
assault, sexual harassment and discrimination did not occur, as alleged.
2. There is clear and convincing evidence that the grievor complained in bad faith in
order to secure a job/upgrade.
3. The Ministry had cause to discharge the grievor on this basis.
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4. Nevertheless, I conclude that a lesser penalty is “just and reasonable under all the
circumstances.” Specifically, I conclude that the penalty of a suspension without
pay from the date of the grievor’s discharge (February 19, 1999) until the end of
the arbitration hearing (December 14, 2000) should be substituted. The grievor
should be made whole from December 15, 2000 to the date of reinstatement as an
OAG-7. The grievor is to be given additional training in WDHP and appropriate
office behaviour. Her seniority is to be restored.
5. I shall remain seized.
Dated in Toronto, this 7th day of May, 2001.
Randi Hammer Abramsky, Vice-Chair.