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HomeMy WebLinkAbout1988-0622.Henry.89-03-20 GRIEVANCE COMMISSION DE ~ ~ SE~LEMENT R~GLEMENT ~ ~ BOARD DES GRIEFS '~'2 DL'~OAS 5 T~E~T WEST. TORONTO ONTABIO. MSG ~ - SS'ITE 2~O0 -ELEPHONE/TEL~.~HONE IN T~E MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: ,.c?'F;':: ; ?a,~i '.-~e~u;<v / Grievor - and - -'.".~- ,.,~ ~w~', ."..;'~ F.j~ ............ (' ;.~ J {': j. 5 ~ ::'V ,:,P Employer Vice-Chairperson Membe~ -' APPEARING FOR THE UNION: AFPEARiNG FOR THE EMPLOYER Hearings: .7a],u,~'v i~ ~ ] ~7 a:,.,d l, lq DECISION This is a discharge grievance which was heard over zhe course of four full days, January !0, il, 17 and 31j 1989. A~ ~he close of ~he hearing, the Board adjourned briefly and reconvened ~o render ins decision. The following oral decision was read no the parties on January 31, 1989: "In cases of this nature, no u~eful pu{pose ii served by delaying the parties in knowing mheir fate, simply for ~he purpose of delivering longer reasons. Those reasons will be prepared in due course, uo explain more fully why we have decided as we have. i% is our unanimous decision that ~he Employer has not met the burden of proof, and has not convinced us uo the requisite standard that an act of sexual impropriety occurred. The testimony o£ the Complainant is .too fraugh~ with uncertainty, and is uncorroborated in any respect in terms of ~he 'objective reality' of which both counsel spoke. We are more inclined ~o ~he view that nhe' Complainan~ misconstrued a friendly gesture as sexual, although we do not have uo make tha~ explicit finding since the burden of proof is on the Employer. As for Mr. Henry's judgment, we are of the view mhat this master was dealt with in 1986. While Dr. Pruesse may be criticized for accep%ing Mr. Henry's version of events without adequate investigation, he nonetheless proceeded on the smme basis as this Board now does, having both given Mr. Henry the benefit of the doubt, as ~% were. Bo~h Drs,. Pruesse and Vinegar verbally reprimanded the Grlevor. It would be dangerous for employers no be uermitted to resurrect incidents of this nature as g~ounds for greater discipline. That 'is no__~ say that Mr. Kytayko ought no% ~o ha_~ve investigated, nor would i% have been wrong to discipline for sexual misconduct assuming same had occurred, an offence previously denied by the Grievor and never before uhe sublect of discipline. However, the question of Mr. Henry's judgmena was clearly dealt with and to justify the discharge - or any other penalty - ex post facto on this basis, would be manifesnly unfair. In the result, for reasons which will be more fully elaborated upon, the Grievance is allowed and the Grievor is ~ntimled to be reinstated with full monetary compensation and seniority, subject to any further maimers to be resolved between counsel, if they are able; o~herwise this panel of the Board will remain seized of %he matte~ to resolve any outstanding issues." FURTHER REASONS As promised, we are delivering herewith further reasons so that the parnies ~o this. case may derive a better understanding of why this Board has decided ko reins%sue Mr. Henry. The Grievor Paul Henry is 44 years of age, having received his Bachelor of Arts in Psychology in 1968 and his Mas%er of Arts in Psychology from the University of Guelph in !971. From 1971 to ~973 he was a psychologist at Millhaven, a federal prison. From t973 %o 1976 he was the executive director at St. Leonard's House in Windsor, where he continued h'is work with inmates. In 1976, he joined the staff ak %he Pene%anguishene Mental Heainh Centre ("Pene%ang") as a Psychomenris%, which is the professional designation that he is enni%led to use in the Ontario Hospital system. For the first two years of his_career he worked in the Oak Ridge ward of %he Hospital, which is a maximum securimy facility. Thereafter, he has worked in medium security wards providing ~herapy to patients. Much of his lime has been spent leading group therapy sessions. In or about mid-1983, a young woman who we wilt refer ~o for reasons of confidentia!i%y as Ms. G~, was involuntarily admitted to Penetang seriously depressed and suicidal, having recently split up with her boyfriend. Part of her treatmen~ consisted of group therapy twice per day for one to two hours per session, with Paul Henry as the group leader. The number of people in the group varied, but might have been anywhere between 2 and 18 patients, in is no% disputed that Ms. G. reported a history of sexual abuse, which accusations were aimed at members of her immediate family and various men who had boarded in her home while she was growing up. We have no way of knowing whether these 5ccusanions were true, or on the other hand were figments of her imagination. However, in either case these events were tied in with her disturbance and as part of her therapy they had no be confronted. This is very significant because in is qui~e consistent with the diagnosis of Ms. G., %hat she could have imagined that cerLain sexual overtures were made to her and. conscientiously believed that %hey had taken place. We have already observed %ham %here is no evidence~before us to say one way or another whether those episodes had occurred, but more will be said about %his when we refer to some of the %exLbook characteristics of a patient who has been diagnosed with a "borderline personality disorder". There is also no.dispute that during the course of Ms. G's stay at Pene%ang, she was one of the many persons to take par% in acm~vities outside the Institution with ?aul Henry. From all %he evidence, it appears that Mr. Henry is a therapist who cares deeply about his patients and who is willing 5o ex%end himself to them at all hours of %he day and night both inside and outside %he Institution. During [he s~er months, he would often take patients to water-ski with him and 'tis family an his co[-~age, or %o engage in running or in other athletic pursuits. He also made an effort ~o introduce pa%lents %o other pecpte than he kn~w in %he community, all of which was aimed at helping these patients become Znuegraued inno the community, %hereby decreasing %heir sense of alienation. Some of the witnesses before us described Mr. Henry's approach as "extending a lifeline" to his patients. In cuber'words, he makes a commitment to %hem, which includes making himself available %o help %hem after %heir release from Peneuang with any problems %hat might arise. He also maintains a system of informal follow-up with people who are back in the community, just ch~cking up %o see how %hey are doing. Ms. G. was one of the people who during her.period of~ admission at Penenang went ~o Mr. Henry's cottage, and participated in a locally-sponsored !O-mile race with him. She ~esnified than she had begun to think of Paul Henry not only as her %herapist but as a friend. Ms. G. was released after five months (she testified that it was eight months). Mr. Henry was somewhat dubious about Ms. G's readiness to re-enter the community, but he did not voice his concern or actively oppose the discharge. Indeed, he utilized some of his contacts to arrange for Ms. G. to have a job waiting for her in Toronto. He even volunteered ko drive Ms. G. down from Penetang to Toronto where she took up residence at Willard ~all in ToronLo. Thus far, there is no real difference between the version of event~ as given to us by Ms. G. and that given us by Mr. Henry. However, we heard two very different versions of certain events %hat look place in January, 1984. MS. G'S EVIDENCE Ms. G. testified that one evening she received a telephone call at Willard Hall from Mr, Henry at 11:30 p.m. She testified that she had been in Toronto for about two weeks at that time. Mr. Henry said he was just calling to check up on her and find out if she wanted to talk to him. She said she was very angry for him to have called her at that late hour, and no arrangement to meet was arrived at. She said that she was so a~gry that she couldn't sleep, and later that morning at 5:00'or 6:00 a.m. she called Mr. Henry at his hotel~ He suggested that they go jogging together and told her to come and meet him in his room at the Westbury Hotel. She testified that she arrived at his room at about 6:00 a.m., wearing jogging shorts and a t-shirt. When she arrived, Paul Henry was wearing his jogging shorts with no shirt. She said that Mr. Henry claimed that he was still tired and didn't feel like going jogging, and that he crawled back into his bed to go to sleep. She said that since he was going to go to sleep that she would go to sleep as well and she got into ~he other bed in the room. After lying awake there for a while, she sat up and said that she was tense and began, to rub her neck. Mr. Henr. y thereupon asked her to "come here, I'li fix it for you", whereupon he began to .rub her neck for her. He told Ms. G. that he had missed her since she had left the Institution, and that he was glad ~she was out. He asked her to lay down beside him, began to hug her and gave her a kiss on the cheek. She claims that during %his hug Mr. Henry put his hand down the back of her shorts and touched her at a point roughly where her back ends and her bustocks begin. Ms. G. further claims that she told him that he ought not no have done that. She then said that Mr. Henry asked her to hake her top' off, which she declined to do. Mr. Henry then got up to take a shower, and came out of the shower without any c%othes on and began to get dressed in full view of her. She said he then gave her another hug and said he was glad tt%at she was out of the Hospital. Ms. G. stated that she felt confused and that her trust in Mr. Henry had been shaken by this incident. Ms. G. stated that she and Mr. Henry made plans meet again in a couple of weeks when he would be back in Toronto, at the Westin Hotel. She stated that she went to his hotel room on that occasion, at which time he answered the door ~n kis underwear. She said she went and sat down in a chair wkile Mr. Henry went back into bed. She said that she told Mr. Henry that she was depressed and suicidal. She. reported that Mr. Henry then yelled "take your clothes off and get into bed". Indeed, she claims that he said this twice. She did not take her clothes off, but lay down beside him fully clothed. According to her, he then said "it looks like you are not into %his. I can't have you, so you had better leave." Ms. G. testified that this made her feel eve:] more depressed and further undermined her trust in Mr. Henry. According to Ms. G. they spoke sometime later on the telephone. She told Mr. Henry tka% what they had done was wrong, while he said that there was nothing wrong with what~ they had done and that he wanted to come and talk to her. She then claims that Paul Henry came to Willard Hall with a friend, and ~he'y went off to a hockey game together. Sometime later, she says that she talked to Mr. Henry again. After this conversation, he came down from Penetang (she said it was around Christmas time), but she did not answer the bell at Willard Hall. He then called her and said he was upset that she had not answered the bell. Mr. Henry then told her that he was terminating the therapeutic ~elationship, because otherwise his job would be jeopardized. She said that she was upset at this termination, that she had been looking for help, and that Mr. Henry left her with nothing. She never spoke ~o him again, and he did not refer her to any other health professional. Sometime later she presented herself at the emergency department of Toronto General Hospital where she was admitted to the psychiatric ward. She said that she had become suicidal because of what had happened between her and Pau~ Henry. Shortly after her release from Toronto General she was admitted to the Queen Street Mental Health Centre in Toronto, where she spent eight months. PAUL HENRY'S EVIDENCE According to Paul Henry in or about early January 1984 he learned through his contacts that Ms. G. was having problems with her job, and he was being asked to look up Ms. G. to see if he could offer any help. On the morning of January 8, 1984, Mr. Henry checked into the Westin Hotel at about 3:00 a.m. after having spent the evening at hockey game in Brockville. (It should be mentioned at this time thac Mr. Henry is very deeply involved i~ international and professional hockey circles, as both a general manager of the team that Canada - 11 - sends to the Spengier Cup in Switzerland every year, as Well as a part time scout for the New Y0fk Rangers of the National Hockey League. This is significant only because it requires Mr. Henry to keep records of his travels, and he was thus able to pinpoint precisely when he was in Toronto and had his meetings with Ms. G.). Mr. Henry testified that he called Ms. G. between 9:00 and 10:00 a.m. on January 8th, and suggested tka% they go jogging together. He figured on killing two birds with one stone, since it was his practice %0 run in the mornings' and he also wanted to talk to her. He testified that this was not the first time that he had contacted her since her move to Toronto, having previously taken her to dinner and a hockey game. Mr. Henry saw nothing wrong with suggesting that they meet at his hotel room, since he did not know at that time that Ms. G. experienced any attraction to him, a fact that was admitted by Ms. G. during her testimony. In any event, he invited her to go for a run with him and to talk about her job situation whatever that was. Mr. Henry's assessment of Ms. G. was that she had a chronic difficulty in getting along socially with people, ~'nd he believed that this could be at the root of her job problem. He testified that Ms. G. arrived at the hotel door and came in. Mr. Henry was dressed in a full jogging suit, not Just shorts. He did'not recall what Ms. G. was wearing, but doubted that she could - 12 - have been wearing only shorts since it was early January and thus winter. Ms. G. then sat down in the chair, and it was obvious that she was extremely distraught. He says that she was at the lowest point that he had ever seen her, depressed and almost catatonic. Seeing her in such a state, Mr. Henry gave up any thoughts of jogging and decided just to talk to her in an effort to try to get her to feel better about herself. He found her to be unresponsive, and at one point came over to her and gave her a hug as a gesture of friendship and comfort. He said that he was overcome with emotion at seeing Ms. G. in this state, and felt that she was a potential danger to herself. He noted that while he regularly bugs other pa%i. ents in the context of their therapeutic relationship, this was the first time he had ever given Ms. G. a hug. Wi%hin an hour, Ms. G's mood had brightened considerably and Mr. Henry felt she was out of danger. As he had to leave Toronto to go on to Brantford, Mr. Henry says that he asked Ms. G. to wait for him in the hotel lobby while he went and took a shower. He denies entirely presenting himself nude in her presence, and denies any sexual advance to her whatsoever. According to Mr. Henry, several days later on January 12, 1984 he received a telephone call from Ms. G. complaining - 13 - that he had made a pa~s at her in the hotel room. She was demanding an 'explanation.. Mr. Henry noted that her mood had changed markedly from depression to anger. Mr. Henry said %hat he would meet with her on his next trip to Toronto, and that he tried over the telephone to allay her anxieties. He told her that she had obviously misconstrued his hugging gesture. On Sunday, January 15th, Mr. Henr~y was back in Toronto and asked her to come over to the Westbury Hotel at 9:30 or 10:00 p.m. According to Mr. Henry, he simply sat down with ~er and ~ried co explain that nothing had happened the previoua week, and that she had meret'y misunderstood his intentions. He felt that Ms. G. was unwilling to listen to him. The conversation became an argument. Mr. Henry decided during the course of that short meeting that he would have to terminate his relationship with.her, because it was apparently etched in her mind that.he had acted inappropriately with her. He felt that it would be unwise to terminate the'~'relationship on the spot, given the psychological climate in the room, so he waited for an appropriate opportunity. The following Saturday, January 21st, in the afternoon, he presented himself at Willard Hall and told her that he was terminating their therapeutic relationship. He - 14 - suggested that she seek help elsewhere. A% this point, Mr. Henry confided all that had gone on to his wi~e and %0 some o~ his hockey friends, but he did not advise any of his superiors at Penetang. THE COMPLAINTS AGAINST PAUL HENRY Between 1984 and 1988, Ms. G. made a series of complaints against Mr. Henry. The first complaint came via a psychiatrist a% Toronto General Hospital, who had been told by Ms. G. on her admission in January 1984 that Mr. Henry had apparently made a pass at her. The physician from T.G.H. spoke with Dr. David Vinegar, who had been Ms. G's attending physician at Penetang. This information was conveyed to Drs. Call and Pruesse of the Psychology Departmest, and all three of ~hem discussed the incident with Mr~ Henry. Dr. Vinegar accepted Mr..Henry's version of the events, but reprimanded Mr. Henry for his poor judgment in having met a young single female ex-patient in a hotel room. He exacted a commitment from Mr. Henry not to meet with ex-patients in hotel rooms, a commitment which Mr. Henry says he has honoured. The matter seemed to be at an end. More than two years later, in or about August of 19~6, Ms. G. began to formally register a complaint. It is obvious that she did not know exactly how to do this, so-she lodged her complaint simultaneously with the Patient Advocate Office at Penetang as well as with the Board of Examiners in Psychology, whom she presumed wrongly to be the professional body that licensed Mr. Henry. From both sources the complaint found its way to Dr. Pruesse, who was the head of %he psychology department and Mr. Henry's direct superior. Dr. Pruesse spoke again to Mr. Henry and listened to his version of the incident. He also examined the clinical record of Ms. G., and (rightly or wrongly) assumed that this allegation was an extension of Ms. G's pathology; he assumed .that %his was another in a series of unfounded allegations of sexual impropriety against persons with whom Ms. G. had a close relationship. Dr. Pruesse did not consider it necessary to speak to Ms. G. directly. He simply concluded that %he events had occurred as Mr. Henry had told him, and that Ms. G. had misconstrued a friendly ges{ure as a sexual advance. In %he course 'of Dr. Pruesse's discussions with Paul Henry, he again reprimanded Mr. Henry for having ~he poor judgment to meet with an ex-patient in a hotel room. Dr. Pruesse wrote to the Board of Examiners and directly to Ms. G., and told them both that he was satisfied that the incident had not occurred as Ms. G. had alleged. The Hospital Administrator was sent copies .of that correspondence. Again, everyone involved had reason to believe that~ - 16 - ~he matter was at an end. They all evidently underestimated Ms. G'"S persistence in having this complaint investigated and aired more fully. In early 1988, Ms. G. went to the office of the Ombudsman. An investigator from tha% office wrote to Mr. George Kytayko, the relatively recently appointed Hospital Adminis%rator, and asked that he look into~ the incident and whether or not i% had been properly investigated. Mr. Kytayko took to the task with grea% zeal. He appointed an investigating committee, consisting of Mr. Miller, the Director of Nursing for the Regional Division, Mr. Popple, the Director of the Vocational/Recreation/Volunteer services, and Dr. B. Jones, the Director of %he Social Management Unit at the Oak Ridge facility. The mandate of this committee was several-fold, and was set out in a memo to the committee from Mr. Kytayko. Their tasks were: 1. To determine if a proper and adequate investigation of Ms. G'S initial complaint dated August 1, 1986 was conducted by Dr. Pruesse and if no%, why not? 2. To determine if a reasonable explanation of the investigation and its finding was provided %o Ms. G. by Dr. Pruesse in his response dated October 6, 1986 or in any other manner. 3. If a proper and adequate investigation was not carried out, to formally investigate Ms. G's complaint as an investigation committee, in line with current policy, and to provide recommendauions as to whether or not a disciplinary hearing on the matter should be held. 4. To provide a written report on their findings by March 11, 1988. In the course of their investigation, the committee interviewed Mr. Henry, Dr. Pruesse and Ms. G. It-is very significant that Mr. Henry was interviewed prior.to Ms. G., and that Mr. Henry was never confronted by the committee with the particulars of .the allegations by Ms. G. which had previously been stated in the barest of generalities only; namely that Mr. Henry had made a "pass" or a sexual advance %o Ms. G. in a hotel room. Elementary fairness would have required the committee to confront Mr. Henry with the specifics of the allegations against him so that he could have responded to them. Nevertheless, the committee's report was inconclusive as to what had 'actually happened. It merely reported that - 18 - there were two different versions of the events. The committee kad access to Ms. G's clinical, record, and it is worth noting that none of the members of the investigative committee had any considerable clinical expertise. Not surprisingly the committee gave. no serious thought to whether or not Ms. G's complaint was a function of her pathology as 'opposed to a complaint based on fact. On the basis of the investigative committee report, Mr. Kytayko decided to convene a disciplinary hearing which was scheduled for June 25, 1988. It was specifically scheduled for a Saturday ko accommodate Ms. G., who would have to travel up from Toronto and who was working Monday to Friday. Mr. Kytayko was prepared %o arrange for transportation for Ms'. G. to be driven from Toronto to Penetang. Hr. Henry attended the June 25%h hearing with his then counsel, Patrick Ducharme. Mr. Ducharme is a friend of Paul Henry, who practices primarily criminal law in Windsor. When he and Mr. Henry arrived at the hearing, they were informed that Ms. G. had declined to attend. Mr. Ducharme confided in this Board %hat he thought Mr. Henry was now in the clear, since his accusor was not in attendance at the hearing. Nevertheless, the hearing proceeded and Mr. Henry was questioned by Mr. Kytayko and the members of the - 19 - investigative committee. The procedure was apparently quite informal. It is significant that Mr. Henry s%il! had not heard the specific.allegations that had been made by Ms. G., since he had not been provided with a copy of the investigative committee's report which included notes of the committee's interview of Ms. G. At the hearing itself, Mr. Henry was confronted for the first time with some of the specific allegations and was asked questions, for example, "did you ever come out of the shower nude and sit down beside Ms. G.?" Mr. Henry testified that he 'Lwent nutsL' at. hearing these allegations, which seemed to be outlandish and which he had never heard before. When the committee was finished with Mr. Henry, Mr. Ky%ayko announced that he was planning to set up a conference telephone call with Ms. G. and invited Mr. Ducharme %0 listen in. Mr. Ducharme declined the invitation, not believing that this call was intended to substitute for the missed opporuunity to cross-examine Ms. G. He was also concerned that ~he might become a witness if Ms. G. made any statements during such a telephone call, since he had it in his mind that he might recommend to Mr. Henry that he take legal action against Ms. G. for having made these accusations. On July 29, 1988, Mr. Henry was terminated from his employment by a letter signed by Mr. Kytayko. That letter reads in part: "As you know, the purpose of this hearing, was to examine the circumstances surrounding an allegation that you had made sexual advances towards a former patient of the mental health centre during a follow-up visit in Toronto. Having considered all the evidence presented during the hearing, as well as a lengthy interview with the former patient, I am satisfied that this allegation has been proven. I am of the opinion that on two occasions while visiting. Toronto, yo~ contacted the former patient and invited her to your hotel room. On these occasions, you made sexual advances towards her even though you were still in a therapeutic relationship with her. She clearly believed that you were her therapist and that you were providing follow-up assistance to her. Your explanation of the incidents was that nothing inappropriate occurred at all. Unfortunately, I simply cannot accept your version of the events. The information you 'ipr0~ded was inconsistent and in some cases vague. This is a very serious matter involving a former patient who trusted you as a therapist and a friend. The fact that this individual was hospitalized in a psychiatric facility shortly after these incidents occurred is indicative of the emotional and mental strai~% created by your actions. There is no question in my mind that your behaviour was totally inappropriate and unacceptable for an employee of a mental health centre into which patients place their trust~ Having considered all the circumstances, I have decided that you should be dismissed from employment with the mental health centre, Penetanguishene ..." FINDINGS OF FACT This Board has come to conclusions that are different - 21 - than those of Mr. Kytayko. This'is not surprising. The procedures employed by Mr. Kytayko were enthusiastic but" quite out of harmony with elementary principles of fairness. Having set himself up as a fact finder in a quasi-judicial role, he ought to have observed certain basic principles of natural justice. Tho~e principles include the right of a person whose interests are affected to know in advance the allegations against him, and the right to confront one's accusor usually by subjecting him or her to cross- examination. No one is suggesting that Mr. Kytayko did not have Lhe authority Or indeed the obligation to~ determine the issue, and we are not suggesting that the processes of administration ought to become more judicialized than is absolutely necessary. However, in a matter of such seriousness, Mr. Kytayko.~had a' duty to insure that the proceedings were conducted fairly. If he did not know how to do so, then'he ought to have consulted his legal advisors. This Board, on the other hand, sat through four full days of evidence at a hearing where both sides were represented by counsel of the highest skill and experience. Each witness was carefully examined in chief and skillfully cross-examined. Having had the. benefit of a full and fair hearing, we.have concluded that the allegations against Mr. Henry are not proven. - 22 - Faced with two diametrically opposite stories, we must make findings of credibility. This usually involves a finding that one person or the other is deliberately lying in an effort to mislead the Board. However, the term credibility does not only include truth-telling. The credibility of ~ witness who testifies to certain events will depend on many factors, including the witness's ability to observe an event, state of mind at the time the eQ~nt occurred, memory, and any other factors that might render 'unreliable an otherwise honestly presented testimonial to the events. In assessing credibility, in the absence of any outside evidence to corroborate one version or the. ~other, we must also consider the 'inherent probability of each story. There are many reasons to discount Ms. G's credibility. First of all, she appeared somewhat confused about certain details yet seemingly definite abo~t other details. Her attempt to place the events in a chronological order were clearly confused; indeed she seems to have placed her meetings with Mr. Henry in precisely the opposite of chronological order. It must be remembered that these events occurred during a fairly short period of time in the community sandwiched between two lengthy hospitalizations with serious mental disorders. We have no confidence that - 23 - her mental state during the relevant time was such that she could achieve a clear perception of the events. Moreover, as noted in her discharge summary in March of 1984 from the Toronto General Hospital, she was suffering at that time from a deficiency in her short-term memory. Both at Penetang and T.G.H., Ms. G. was diagnosed as a patient with a "borderline personality disorder". We have had the benefit of reading about this disorder in a learned text on the subject,' namely "Modern Synopsis of Comprehensive Textbook of Psychiatry/IV" by Harold I. Kaplan, M.D. and Benjamin J. Sadock, M.D., boLh of whom are professors of psychiatry in the United States. Dr. Vinegar's assessment of Ms. G. was that she was a fairly classical case of borderline personaii%y disorder. Some of the hallmarks of that disorder as recited in %he above noted text are as follows: "Functionally, the adult borderline patient distorts his present relationships by pigeon- holing people into all good and all bad categories. People are seen as either nurturan% and attachment figures, or hateful and sadistic persons who deprive the patient of security needs and threaten him with abandonment whenever he feels dependent." "Continually feeling deprived and hating those on whom he is dependent, the borderline patient finally disowns these experiences by the use of~ projective identificstion and other primitive forms of projection." "They can be clinging-sometimes literally so - and very dependent on %hose to whom they are close. In contrast to dependent personalities, borderline personalities can express enormous anger at their intimate friends when frustrated0 In their capacity to manipulate groups of people, borderline personalities have no peer among the personality disordered." It was further noted in Ms. G's discharge diagnosis from T.G.H. that she had paranoid and schizoid traits. When asked, Dr. Vinegar testified that_it was quite possible for Ms. G., given her pathology, to have perceived an event occurring ~hat in fact objectively had not occurred. This would be consistent with her tendencies to paranoia. Dr. Vinegar also stated that it was very possible that she now believed that what she was reporting was the truth. It is not our desire or intention to suggest that persons who have suffered from mental illness cannot give credible testimony. We would not want to see such persons stigmatized any further than they have unfortunately already been. However, in the absence of any corroborating evidence and ~ive~ the fairly high standard of proof upon the employer who must rely solely on Ms. G's evidence, that evidence simply does not satisfy this Board as being sufficiently trustworthy. We are obliged to say that there is a very substantial possibility that Ms. G's account of the events is a function of her pathology at the relevant time. The fact that she now appeared to'be sincere and wanting to tell the - 25 - truth in 1%o way discounts that possibility. In considering the inherent probabilities, we also find that Ms. G's story is lacking in probability. Without going into all of the details, it simply seems to us that people generally do not behave %he way Mr. Henry is described as behaving. I% is particularly difficult to believe that Mr. Henry, being a professional and alert to the ethical issues, would make a second advance to Ms. G. after she had already complained that she felt the first one was improper. It is further difficult to believe that he would yell "take your clothes off and get into bed", when as she stated she w~s in his room feeling depressed and suicidal. Such a s~atemen5 or directive would have been-entirely wi%hour subtlety, let alone sensitivity - both traits which we believe Mr. Henry to possess. Mr. Henry's version of events is on the other hand quite believable and in harmony with the inherent probabilities of the situation. As for Mr. Henry's credibility generally, we find him to have been an excellent witness with no serious marks against him. He was slightly argumentative, but that was probably a function of nervousness. Obviously he had an interest in seeing himself exonerated, and like any interested witness he had a motive to lie. However, there is no reason to discount his evidence on any of the grounds wkere we have had Lo discount Ms. G's evidence. Mr. Henry had written records to corroborate the dates, and had a good and clear memory of the events. Indeed, his-ability to place his whereabouts on the evening of January 7th prior to the inciden~ on the morning of January 8th, fairly cogently renders improbable Ms. G's version of the events of that evening. He could not have called her from his hotel at 11:30 or 12:00 p.m. 'since he was on the road from Belleville and did not arrive in Toronto until 3:00 a.m. In general Mr. Henry's ability to put the events in proper sequence renders his version of events more probable. We also heard glowing evidence as to Mr. Henry's reputation in the community for tru%h-telling and ethical standards. Indeed we heard and read many testimonials to Mr. Henry as a clinician and a human being. We cannot pretend not to have been impressed by such evidence. We are satisfied that Mr. Henry is a fairly exemplary individual whose employment record was not only free of disciplinary matters but was nothing shor% of excellent. On all the evidence, we are thus satisfied that the employer has fallen fa~ short of proving on clear and convincing evidence that the acts complained_of occurred. There is nO dispute as to the appropriate standard to be applied in cases where serious allegations are made out. The allegations against Mr. Henry concern conduct %hat would haue-~. been highly unethical, if not criminal. His entire reputation and career could be jeopardized by a finding that he had made sexual advances to a patient who was in a vulnerable condition and in a relationship of dependency. Had we been prepared to find that such event occurred, we would have had to consider whether the discharge was too severe or the appropriate penalty. Thankfully, we do not have to enter into the difficult task of measuring an exemplary employment record against one serious misdeed. Given the seriousness of the allegation, the obligation of the employer is to provide clear and convincing proof on a balance of probabilities that the incident occurred. It has fallen far short of this test. THE ALTERNATE GRODND - MR. HENRY'S JUDGMENT The employer has asked us to consider an alternate ground in support of the dismissal. It is the employer's view %hat even upon Mr. Henry's own version of the events, his judgment in seeing an. ex-patient in his hotel.room - not once but twice - and furthermore in failing to refer her to another therapist for treatment, was so utterly deficient that the extreme penalty of dismissal was justified. The Grievor's answer to chis charge is four-fold: - 28 - i. What Mr. Henry did was not so wrong; 2. The employer cannot expand upon its grounds for dismissal as set ouL in Mr. Kytayko's letter, which referred only to sexual impropriety; 3. The employer has unreasonably delayed in pursuing discipline, such disciplinary action having taken place 4-1/2 years after the events: and 4. In any event, to impose discipline on Mr. Henry would amount to double jeopardy since he has already been reprimanded by his superiors, both in 1984 and 1986. We will deal wi~h these responses in order. 1. There can be.no doubt that Mr. Henry's decision to meet Ms. G. a% his hotel room, not only once but twice, was in retrospect a ver~ unwise thing to do. This was however par=ly a function of Mr. Henry's unique style. Mr. Henry does not confine his therapeutic activities to the four walls of the Institution, but rather extends his efforts into the community and into his own private time. To another clinician who never meets patients outside of the hospital, iu would clearly present itself as inappropriate to meet a patient in a hotel room. However, to Mr. Henry the lines between the Institution and the outside world were not as clear cut. We think that even he would agree that the line must be drawn somewhere, and that hotel rooms fall on the wrong side of that line. So it was wrong. However, we agree generally wi~h Mr. Cavalluzzo's observation %hat not every error in judgment or wrong ac%ion taken by an employee ought %o be the subject of discipline. Mr. Henry is a professional who is not perfect. The appropriate disciplinary response by ~ an employer would be to point out the error and assiSt the employee in making sure that such errors do not occur in the future. This is precisely what Dr. Vinegar and Dr. Pruesse did in earlier years. 2. We can also see no reason why the employer should be permitted to expand its grounds for termination. Mr. Kytayko'$ decision was based squarely on his finding that the impropriety had Qccurred. The question of Mr. Henry's judgment is not subsumed in that finding, as Mr. Riggs suggested. It is our view tkat the Aerocide principle, as set out by Professor Laskin (as he then was) in the case Re United Steelworkers of AmeriCa and Aerocide Dispensers Ltd. (1965) 15 L.A.C. 416, applies to this case. At Page 426 of that decision Professor Laskin observed: "The Board is justified in a case Of challenged discharge to hold the employer fairly strictly to the grounds upon which it has chosen to act against an employee who consequently feels himself aggrieved. This is no% to say that the Board should be overly technical in assessing an assigned cause of discharge but it does mean that it ought not to permit an assigned cause to be reformed into one different from it merely because the evidence does not support the assigned cause but rather one something like 3. The issue of delay is one that must be decided on the facts of any given' case. This case is unusual in that it ~was investigated on three separate occasions, with an ever- increasing degree of thoroughness. However, if Mr. Henry's version of the events is accepted then the employer does.not know anything now that it did not know in 19B4, or at the la%est 1986. The delay is lengthy, and to support disciPline 4-1/2 years after the event strikes us as unfair. The employer must act reasonably promptly, and in this case has not satisfied us that it has .done so. 4. As for the double jeopardy argument, we are also of %he view that the Grievor is correct in saying that he has already been disciplined for this lapse on his part in good judgment. In the case Re Oxford Pendaflex Canada Ltd. and Printinq Specialties and Paper Products Union, Local 466, (1976), 14 L.A.C. (2d) 104, the Arbftrators in that case observed at Page 107: "... many arbitral awards make clear that, after a responsible representative of an employer levies a particular degree of discipline, no representatives superior to him may rightfully substitute discipline more severe. Were the rule otherwise, disputes over disciplinary measures could not be resolved speedily, responsible decision-making by ran employer's line officials would be rendered impossible and neither employee nor his union could readily know what was the employer's final position on any disciplinary matter." We are satisfied that both Dr. Vinegar and Dr. Pruesse were responsible representatives of the employer at the time that they verbally reprimanded Mr. Henry, and therefore the administration of %he Hospital is bound by their choice of remedy. Accordingly, it is not appropriate for Mr. Henry's lack of judgment in relation to %his incident to found any further discipi'ina.ry action, let alone one as serious as discharge. CONCLUSION In conclusion, this Board is unanimously of the view [hat the discharge cannot stand and Mr. Henry is entitled to be reinstated to his former position with no loss of seniority and with no financial detriment as a result of his' discharge. I% was one of the ironies for this Board in listening %o the evidence in this case, to observe %hat the Hospital chose to discharge an employee who pe,rforms his task not merely in an adequate manner, but who has been described by - 32 - his superiors and h~s peers as "excellent" and "special". Afuer almost 12 years of exemplary service to his employer, Mr. Henry deserved a beuter fate. Whe%her or not the employer will share this view in the short term, on the evidence before us i% would appear uha% %he employer would be well-off to have Mr. Henry back in his old job. ,,=?,, :~ Toronto, O. ntar~o ~s 20th day of ~-Iarch, 198~ C. E.K. Stone, Vice-Chairperson / 7. Freedman, HembTr ~.A. ~ia]lace, H~mber