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HomeMy WebLinkAbout1991-2368.Proudlove.94-05-12 ONTARIO EMPLOY~'$ DE LA COURONNE CROWN EMPL 0 YEES DE t. 'ON TA RIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, $[J;TE 2100j TO~O/VTO, ONTAR/O. M5G 1Z8 TELEPHONE/T~LEPHOhtE:. (416~ 326- ;358 180, RUE DUNDAS OUEST, BUREAU 2~00, TORONTO (OhiTARtO.I, M5G 1Z8 FACStMILE/TE£~-COPJE : ~41'6} 326-;396 2368/91, 2663/91 IN THE I~TTER OF AN ~RBITI~TION UndeZ- THE CROWN EHPLOYEE~ COLLECTIVE B~RG~INING ~CT Befo~'e THE GRIEV~NCE SETTLEMENT BO~D BETWEEN OPSEU (Proudlove) Gri evor The Crown in Right of Ontario ~ (Ministry of Transportation) ~ Employer BEFORE: R. Verity Vice-Chairperson I. Thomson Member D. Montrose Member FOR THE C. Flood GRIEVOR Counsel Koskie & Minsky . Barrister & Solicitor FOR THE P. Thorup EMPLOYER Counsel Filion, Wake1y & Thorup Barristers & Solicitors HEARING June 12, 1993 October 21, 22, 29, 30, 1992 November 2, 3, 4, 5, 1992 November l, 2, 3, 4, 1993 2 DECISION This ease involves the propriety of a three day suspension imposed upon'maintenance electrician Robert Proudlove on July 25, 1991 and his subsequent dismissal on December 20, 1991. At all relevant times, Robert Proudlove was a probationary employee. Both disciplinary responses were for cause based on allegations of serious misconduct. In separate grievances filed, Mr. Proudlove alleges that he was suspended and discharged without just Cause, contrary to s. 18(2)(c) of the Crown Employees Collective Bargaining Act. Hearings in the matter began in Toronto on June 12, 1992 and continued over 12 further days of evidence and argument at Thunder Bay. At the hearing, the parties agreed that there were no preliminary objections and that the Board had jurisdiction to hear and determine the matter. We begin by setting out the reasons for discipline. The three day suspension was imposed by Louis Richard, manager of remote northern transportation, following an investigation of complaints about the grievor's conduct at Wapakeka on,July 1, 1991 and · July 9 to 13, 1991. The suspension letter reads as follows: I have investigated complaints about your conduct at Wapakeka on July 1, 1991 and July 9 to 13, t991. The incident where you kicked gravel towards a small native girl is unacceptable behaviour and has clearly created strained relations between the Mjni~ry whom you represent and the community. .Your behaviour in dealing with electrical apprentice E. Davia is still below acceptable standards in spite Of previous verbal counselling on the matter. You are again being reminded that some of the requirements of the Airport Electrician Position which you occupy are to train and instruct apprentice~ to communicate in an effective manner and to deal tactfully especially with Native people. 3 In'future you arc to speak to other MTO employees, especially Ii. Davis, thc electrical apprentice without screamin~ or u.~ing loud tones. You will also cease to use coarse or vulgar language at the workplace. You will also not refer to other employees in a derogatory manner. This may be considered harassment. Your stated willin~oness to try to improve your worki%o relationghlp with the electrical apprentice is noted. As a result of your misconduct you are hereby given a three day (30 hour) suspension. This suspension will occur July 27 to July 29, 1991 inclusive. Any further instances of mi,~conduct could lead to further disciplinary action up to and including dismissal. On December 20, 1991, the grievor was dismissed/rom his employment by Deputy Minister of Transportation Pat Jacobson. The written reasons for dismi~al were as follows: · The circumstances surrounding your beheviour and pedormance in the workphce have been brought to my attention. In particular your hara~'in~ behaviour towards a co-worker, Elaine Davis,' has been reviewed and found unacceptable, Harassment is viewed as a very serious matter in the .Ontario Public Service. i have revieWed your corporate file includln~ your length of service and I note that you were .previously~ disciplined by suspension for v. uacceptab~ behavior iu the recent past. I must inform you that your behaviour and perfo _rrna .n_ce during your employment with the minisWy has failed to meet aCCeptable stand~..ds,' Consequently, I am dismissing you, in accordance with Section 22(3) of the l~blic Service Act, R.S.O., 1980, c. 418, effective immediately. You have the right to grieve this action pursuant to section Il{c) of the Crown Employees Collective Bargaining Act and the Collective Agreement. S.22(3) of the Public Service~tct R.S.O: 1990, c.P.47 reads: A deputy miniver may for cause dismiss from employment in accordanc~ with the regulations any public servant in 'his ministry. Before descending into the particulars of this case, a few general observations would seem appropriate. We do not for a moment discount the reality of difficulties that can be encountered in any relationship between a qualified tradesman and his apprentice, working , 4 and living for extended periods of time in isolated and remote northern communities. No one can realistically expect the decorum of a tea party. There is, however, an obligation upon the grievor, as the journeyman electrician, to instruct his apprentice in the essentials of the trade and to ensure the creation of a proper work environment which is conducive to the learning process. On the other hand, the apprentice is requffed to follow reasonable instntctions attd generally to co-operate in the performance of assigned tasks. Briefly stated, the employer's overall position is that the'grievor's treatment of his female apprentice constitutes general harassment which justifies dismissal. The employer maintains that it is impossible for the grievor to work in remote, northern areas, given his apparent dislike for worldng with a woman/n a trade and in working with native people. In these allegations, the thrust of the grievor's case rests essentially on the submission that there was insufficient proof to sustain either the SUspension or the discharge, that there was no harassment or sexual harassment in these circumstances, and ~hat, in effect, there was no culpable conduct on the grievor's part. In short, the union maintains that Davis had a problem receiving instructions from the grievor and that it was Davis who provoked each incident. During final submissions, the parties provided us with an exhaustive list of authorities, both arbitral and judicial We turn now to a consideration of the evidence. Having regard to the length of this hearing, we make no attempt to refer to all' episodes, but fairness dictates that there be some mention of significant events. The evidence lends itself'to a division of three parts: first, the/nitial working relationship between the gr/evor and Davis; second, the allegations which led to the three day suspension; and third, the allegations which led to the grievor's dismissal. Naturally, we have studied with particular care the demeanour and personality of the two principal witnesses, Mr. Proudlove and Ms: Davis, and the manner in which they gave their evidence. When assertion is met by counter-assertion, we have sought guidance by consideration of probability or by extrinsic evidence. In making findings of fact in matters in dispute, we are mindful of the test laid down by Mr. Justice O'Hallaran of the British Columbia Court of Appeal in Faryna v. Chornv, [1952] 2 D.L.R. 354 where he stated in part at pp. 356-8: If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary findin~ and justice would then depend upon the best actors in thc witness box. On reflection it becomes almost axiomatic that the appearance of telling thc truth is but on~ of the elements that cuter into the credibility of thc evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and ~ Raymond v. Bosanquet (1919), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a v0ry unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding ciro~m.~anees in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie. The credibil/ty of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test mug reasonably subject his story to an examination of its co_nfi~tency with the probabilities that surround the currently existing conditions. In short, the gal test of the troth 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. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experiel~ced and confident witnesses, and of those shrewd persons adept in the half-fie and of long and successful experience in comb'ming skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him beeaus~ 6 I judge him to b~ t~lling'thc truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind. The trial Judge ought to go further and say that evidence of the witness he b~lieves i~ in accordaace with · the preponderance of probabilities in the case and, if his view is to command confidence, also ~ate his reasons for that conclusion. Thc law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that thc trial Judge's finding of credibility is based not on one elenient only to thc exclusion of others, but is based on al/th~ clements by which it can be tested in thc particular case. Robert Proudlove is 44 years of age. He is an experienced journeyman electrician with some 25 years in the trade. Proudlove was hired by the Ministry on May 22, 1991 at Thunder Bay as a maintenance electrician to work on airport maintenance on Indian lands in remote areas of northern Ontario. Apparently, there are currently some 22 remote airports operated by the Ministry of Transportation. It is common ground that the grievor is the sole employee classified as maintenance electrician who works in the remote northern transportation division. At the time of hire, the grievor was advised that he would be working .in remote communities with a female apPrentice. According to the grievor's evidence, he looked forward to the experience although he had never worked with a female apprentice. The work schedule consisted of eight days at a remote location followed by six days off, Elaine Davis, aged. 29, was hired in February 1991 to begin a four year electrical apprentice training program in the remote northern division. Ms. Davis kept a diary in which she made notes of significant daily events.' The diary was made an exhibit at the hearing. THE GRIEVOR'S INITIAL PERIOD OF EMPLOYMENT Shirley Fuchek/s senior human resOUrces clerk for the Min/stry at Thunder Bay. She testified that during the gr/evor's or/entat/on, he made a number of disparaging comments about native pe, ople including the statement, "We should do to the natives what the Americans did - shoot them all." Mrs. Fuchek testified that several weeks later, the grievor apologized to her and said that he "felt humble toward the natives because of their intelligence However, at the hearing the grievor testified that he told, Mrs. Fuchek during the initial orientation interview that "natives are an untapped resource in this countof' and that past U.S. government policies were wrong. The gr/evor maintains that he apologized to Mrs. Fuchek to alleviate any poss~ility of a misunderstanding. The grievor and Elaine Davis met for the first time in Thunder Bay on May 27, 1991. On that occasion, electrical supervisor Doug Flagel informed Davis that henceforth she would be working with the grievor. According to Davis, when they were alone, the grievor told her, "I'll tell you now, I'll probably be the biggest asshole you'll ever meeL" Ms. Davis recorded that statement in her diary and made the notation, "Met the new guy. He seems like a 'know-it-all'." Ms. Davis testified that on the following day she enquired how the grievor enjoyed working on the reserve in Marathon. The gfievor is alleged to have replied, "I hate those fuckin' Indian lovers." 8 The grievor and Davis first worked together in a remote location at Kingfis. her ., .between May 29 and June 2. Supervisor Flagel accompanied them for at least part of that assignmenr. On the evidence of Msl Davis, it was a most unpleasant experience. Davis testified that the grievor repeatedly told her "weird sto~ies" involving child molestati°n, sexual abuse, rape, murder, his experiences while camping w/th boy scouts and several bizarre incidents that he had encountered while worki~ng for both the City of Winnipeg and in the private business sector, The grievor is alleged to have repeatedly made derogatory comments 'to Davis about native people. We do not intend to repeat either the stories or the comments. However, on May 31 during a casual conversation about.women working in the trades, the grievor is alleged to have told Davis, "Some women have to suck cock to keep their job." On one occasion at Kingfisher, the grievor is alleged to have pushed tools into Davis' chest. In addition, there were several work related incidents that mused Davis 'to fear for her safety ..... The second assignment involving the grievor and Davis was at Fort. Albany commencing on June 12. Supervisor Doug Flagel did not accompany them on this trip. According to Davis, the grievor again told bizarre stories, informed her that he enjoyed playing mind games and that he "could scare anyone to death in a matter of months." On June .13, the grievor instructed Davis to take a rotating beacon apart while assuring her that the power was off. Davis claims that she checked the panel and found that the power was on. When advised of this fact, the grievor is alleged' to have replied, "Oh,. I guess I need new glasses." On the afternoon of June 13, Davis testified that she feared for her safety in an incident whereby the grievor's swinging of an antenna almost knocked her off the roof. Dav/s telephoned Thnn~ler Bay and obtained permission to return home. It was agreed that the grieVor was given to understand that Davis returned to Thunder Bay because of an illness in the family. Essentially, the grievor denies any improper conduct on his part and vigorously denies the remarks attributed tO him. He does acknowledge, however, that he spoke to Davis of his personal experiences in an attempt to communicate with her. In the grievor's words, "I was very disappointed in her attitude." In any event, the grievor was called to meet with the Ministry's human relations staff on June 18, and June 24. Apparently, the staff satisfied themselves that Davis and the grievor had difficulty communicating with each · other and urged them to resolve their problem. · . We pause at this point to make a few observationa. From remarks allegedly made by the grievor to Mrs. Fuchek during his orientat/on in May, it should have been apparent to the Ministry that there was a potential problem, lvlrs. Fuchek properly reported the grievor's statements to a human resources consultant. However, no action was taken. In June, the Ministry was made aware by Elaine Davis of allegations of abusive behaviour by the grievor. Again, the Ministry took no action other than to suggest that the two employees resolve a perceived' communication problem. Had the Ministry taken firm and' decisive action within the first month of the grievor's employment, subsequent events may not have occurred. 10 THE THREE DAY SUSPENSION . The grievor's three day suspension was based on two separate events. The first inciden~ which provoked the anger of the native people, is alleged to have occurred at the airport building at Wapakeka on July 1, 1991.' Band Council education director Stan McKay testified that, while standing some 15 feet away, he observed the grievor exit the airport building and proceed to kick stones in the direction of two small Indian children (ages three and two) playing some eight to ten feet away fxom the doorway. McKay testified that he immediately reported the incident and identified the grievor to James Brown, the father of the three year old child. In cross-examination, McKay was unable to identify the clothing worn by the grieV°r. James Brown testified that on being informed of the incident, he picked up a stone and confronted the grievor. In the words of Brown, the grievor "was the only white man around." The confrontation ended without further incident when the grievor denied having kicked stones. However, James Brown was sufficiently concerned that he reported the incident to the Band Council. Manager Louis Richard testified that he viewed the incident as "extremely serious" from the standpoint of maintaining a proper relationship with the·native.people. Mr. Richard interviewed McKay and Brown and met with the Band Council. According to Richard's evidence, the Band expressed concern that the behaviour' was unacceptable but apparently agreed that, at least initially, the Ministry should deal with the problem. At the hearing, the grievor recalled the incident which he maintained took place on Saturday, June 29. The grievor's evidence was to this effect: that he stepped out of the 11 building and observed a child running around~the comer of the building followed by a second child; that the girl stopped some 4-5 feet away from him, looked up and smiled; that he smiled back and that the two children then ran off towards a red truck parked nearby. According to the grievor, he did not kick stones at the children and that the incident "could not have happened even by. accident.". It will be observed that the two versions of this incident are in conflict. On the evidence 'adduced, we are satisfied that Start McKay, currently Deputy Chief of the Wapakeka Band Council, was a thoroughly credible witness, We accept without reservat/on his account of the events of July 1. The incident is significant, we think, to the degree that it speaks to the grievor's credibility. The second grOund for the threeday suspension involved the grievor's treatment of apprentice Elaine Davis at Wapakeka between July 9 and July 13, Ms. Davis testified that during the eight day work assignment at Wapakeka the grievor was generally disagreeable, ~equently became enraged, and repeatedly yelled at her between july 10 and July 13 until the arrival of Supervisor Doug Flagel. Briefly stated, her evidence was to this effect: that on July 10 the grievor became angry when she refused a welding assignment because she did not know how to weld; that on the same date the \ grievor flew into a rage because of the length of time it took her to drive A. J. Wing employees/nto towu commenting to her, "I can just picture what you were doing with those 12 boys"; that on July 10 after an angry exchange with mechanic Guy Trudell, the grievor asked Trudell in front of Davis, "How would you like it if you had to work with a woman"; that on July 11 the grievor '~yelled at me non-stop all day long"; that on July 11 Airport Foreman Jack Winter told her that the grievor had referred to her as "a witch and a bitch"; that on JUly 12 the grievor flew into a rage when she told one A. J. Wing employee, "Am I your chauffeur?" following the grievor's comment that Davis would drive them wherever they wanted to go; that the grievor harassed her on July 12 with repeated complaints that she did not work hard enough or fast enough; that the grievor refused to assign her work on July 13 and suggested that she go into town "to socialize with the boys"; and that on July 13 in moving a steel plate, the grievor pinched her hand against the wall and when.he realized what had happened, the grievor "grinned and shoved on the steel harder". The grievor testified that during this work assignment Davis was generally unco- operative and he thoughtthat she had an attitud/nal problem. The grievor denies screaming at his apprentice and maintains that he raised his voice on'only two occasions - once after work on July 11 and a second time at work on July 12 when Davis was critical of his comments about Guy Trudeli. According to Davis, he told her the incident with Trudell was none of her business and "to get off my fucking back". The grievor testified that he told Jack Winter that Davis "is acting like a bitch". He admitted visiting Winter's home at Wapakeka on the evening of July 12 to express his concern that Winter had repeated · remarks to Davis that he (the grievor) had made in confidence. According to the grievor's evidence, Elaine Davis taunted him about quitting on July 12. 13 Supervisor Flagel met with the grievor and Elaine Davis on July 14. According to the grievor, he expressed concerns about Davis' attitude and her overall work performance. In the grievor's words, "I didn't like her attitude; she was either stand/rig around or getting others to do her work." In any event, it was common ground that the grievor told Supervisor Flagel that he was prepared to start afresh, and similarly Elaine Davis made the same commitment. On the second ground of the three day suspension, we are sat/stied that the evidence of Elaine Davis is the more probable account of events. We defer any comment on credibility of the principal witnesses until later in this decision. It is unusual to impose any form of discipline on a probationary emplOYee. However, in the particular circumstances of this case, we find that the three day suspension was justified on the information then available to the employer. Elaine Davis received a letter of counselling signed by Kelly Cross, airport operations officer, northwestern region, on July 25, 1991, the same day that the grievor was given the three day suspension. The letter was critical of Davis' working relationshiP with Proudlove, advised her to follow instructions and avoid instigating any unnecessary controversy or argument. In October 1992, however, the counselling letter was formally removed fr°m Davis' Personnel file. it is interesting to note that Elaine Davis received a performance appraisal prepared by electrical supervisor Doug Flagel for the period February 18, 1991 to July 29, 1991. The appraisal contains a number of negative comments under "results achieved"; including 14 "occupational knowledge not satisfactory at this stage of the apprenticeship, work relationship and communications with journeyman electrician is not satisfactory, work relationship with electrical foreman anal other employees is acceptable and. satisfactory, quality of Work, work methods and responsibility not satisfactory at this stage of apprenticeship, physical strength is below what is required, also ability to plan and organize work is below what is expected at this stage of the apprenticeship." THE DISMISSAL Catherine Shaw is head of human resources for the Ministry's northern region. On ~ August 6; 1991, she returned to Thunder Bay following a one year secondment in Toront°. She was subsequently advised of serious concerns as to the working conditions of Elaine Davis by K!m Lambert of the employment equity office and by Linda Johnson and Mary Addison from M.G.S. in Toronto. As a direct result of these contacts, Miss Shaw interviewed Elaine Davis on August 28. The statements made by Davis to Shaw, together with a rev/cw of her diary, sufficiently alarmed'Miss Shaw that she contacted Malcolm ' :~ Smeaton, manager employee relations (Downsview). After reviewing the written statement of Davis (Exhibit 19), Smeaton convinced Ministry representatives to conduct an investigation for possible sexual harassment. On September 17, 1991, Deputy Minister Pat Jacobson appointed James Gallagher to conduct an investigation. By all accounts, the investigation that followed was so flawed that the Ministry subsequently appointed Toronto "~ lawyer Frances Gal/op to invest/gate the conduct of investigator Gallagher. It is-comm0n · ground that James Gallagher was an abusive interviewer. Indeed, the panel was advised ,~. 15 that James Gallagher's conduct in interviewing the grievor eventually led to his own dismissal. In addition, it should be noted that the grievor was hospitalized on September 23 shortly after the last of his severn/interviews w/th Gallagher. Apparently the grievor did not return to work after September 23, 1991. It was not until Catherine Shaw's interview of Elaine Davis on August 28 that the Ministry fully recognized the seriousness of the allegations of the grievor's abusive conduct. It can be said that in June of 1991, Ministry representatives were under the impression that the difficulties between Proudlove and Davis were the result of a personality conflict. However, by the end of July the grievor's behaviour towards his apprentice was more seriously questioned. It is important, we think~ to examine the grievor's conduct SUbsequent to the hnposit/on of the three day SUspension on July 25, 1991. The grievor and Elaine Davis worked together at Wunnummin Lake, Summer Beaver and Round Lake from August 6 tO August 12. Davis testified that on August 6, the grievor instructed her to take a panel off the wa//w~thout turn~g ~e power off. According to Davis, she shut the power off although he asked her not to do so, and in so doing, completed the wiring successfully. On August 7, the grievor allegedly dropped several tools from a ladder in the direction of Davis. On August 8, the grievor started discussing his personal problems ~and told Davis that it was Peter Greenwood who threw the rock at the Indian child at Wapakeka. According to Davis, .the day concluded with the grievor's comment'to the effect that between him and Flagel 16 they would get rid of Davis. Davis maintains that on August 10, the grievor was unpleasant. to her throughout the day and fa/led to give her instruction on bending conduit despite her request for help. According to Day/s, she was embarrassed on August 10 by the griev0r's sexually suggestive comments to a p/10t. For his part, the grievor denies telling Davis to work with the power on, that he failed to provide instruction or that he made any statement that he and Flagel would get rid of Davis. The grievor testified that he was pleased with Davis' progress on this trip, felt that she was more attentive and that she was now properly following instructions. He also indicated that he intended no impropriety in joking with the pilot upon leaving Summer Beaver. The next work assignment involving Davis and the grievor was August 19 - 21 at Big Trout Lake and August 22 - 26 at Wapakeka. Davis testified that the grievor was in a bad mood ranting and raving on August 20 when he again lost his glasses. At dinner that night, the grievor allegedly referred to the subject of molesting children and later went on about strippers and prostitutes. According to Elaine Davis, the grievor made the statement that he would prefer to work with a prostitute beCaUse a prostitute is more intelligent than the average woman. On the morning of August 21, the grievor was allegedly in a foul mood and aga/n picked on Davis. Once at Wapakeka, the grievor's mood changed for the better because he needed Davis to communicate with airport foreman Jack Winter. The next few days were uneventful. 'However, Davis testified that On August 24 the grievor became 17 agitated while watching a television show entitled "Top Cops". According to Davis, the grievor began.to yell loudly that the woman in the television show needed to be beaten to know where her place was and that the woman had probably talked back to the man.. On August 25, Davis maintains that the grievor began throwing tools down from the'ladder in her direction and that she was almost hit by a hammer which he had thrown. On August 26, Davis maintains that the grievor had her doing laundry and dishes instead of electrical work. In reply, the grievor acknowledged that he did have general discussions about child molestat/on, pros~tut/on and the television show. However,. he maintains he made no improper comment. He also denies throwing tools at his apprentice or directing her to do the laundry and similar tasks. The' standard of proof required in rights arbitrations is, of course, the civil test of proof on the balance of probabilities. As a general rule, proof in a civil case involves a lesser test than the criminal standard of.proof beyond a reasonable doubt. It must be remembered that the grievor is a probationary employee. In matters involving discipline, it is generally agreed among arbitrators that the concept of probation calls for a somewhat lower standard of just cause than for seniority rated employees. The union maintains that where there are serious allegations of personal misconduct, as in this case, proof must be by dear and Convincing evidence, in examining just cause in the particular circumstances of this case, it is immaterial whether the test is proof on the balance of probabilities, on a 18 somewhat' lesser test applicable to probationary employees, or on the somewhat higher test of clear and convincing evidence. This case falls to be determined on the issue of credibil/ty. It must be said that the grievor was articulate in giving evidence at the hearing. However, a key factor in the assessment of the grievor's credibility is the reasonableness of his version of events in light of contradictory evidence. On a careful and critical examination of the whole of the case and with the 'benefit of hearing the evidence of numerous witnesses, we are unable to conclude that the grievor was a credible witness. To find otherwise would be to reject the tes~mony of numerous witnesses with no vested interest in the outcome. In sum, the grievor's evidence stands in isolation to much of the evidence adduced. The grievor would have us believe that he has a healthy respect for native people. The evidence of Shirley Fuchek is to the contrary. Similarly, ministry mechanic Guy Trudell testified that at Wapakeka, the grievor told him that "the native people got everything for nothing" and that he felt that the airport foreman and assistant foreman, both natives, should not be allowed to have coffee in the accommodations building. According to Trudell, he-rejected the grievor's assertion and insisted that both the foreman and the assistant foreman come in for coffee. In addition, Joe Sprcnkle, a heavy equipment operator and a non-native, testified that the grievor told him that he did not like working with native people. Despite the grievor's denial, we are satisfied that there is cogent and 19 convincing evidence, of a negative attitude on the grievor's part towards the native population in general. The fact that he made negative comments about natives to total strangers tends to support a finding that it is probable that he made similar comments to Elaine Davis. On the other hand, we found Elaine Davis to be forthright and reasonably objective in her testimony. We accept her evidence without hesitation as the more probable account of events. In our view, the obvious difficulties between Davis and Proudlove extend well beyond what may be properly characterized as a personality conflict. From the initial work assignment onward, the grievor subjected Davis to a pattern of abusive conduct which created a hostile and intimidating Work environment in our view, such conduct constitutes harassment. Simply stated, the grievor subjected his apprentice to a pattern of b/zarre stories, comments and treatment designed to intimidate her. In the particular circumstances of this case, it is understandable that Elaine Davis would be reluctant to follow Proudlove'S instructions. A successful apprenticeship program requires an element of trust between a journeyman and an apprentice. By his actions, however, the grievor has destroyed any basis for a relationship of trust, Proudlove was counselled regarding his conduct towards Davis in June and disciplined, at least in part, for that conduct in July. Wh//e it may be said that the working relationship between Davis and Proudlove improved somewhat in August 1991, the pattern. continued whereby the grievor's behaviour toWards his apprentice remained unacceptable 20 by any standard. There is ample evidence before us for a finding that the grievor embarked upon a deliberate campaign to discredit Davis. For example, Wapakeka airport foreman Jack Winter testified that on several occasions he was upset by the grievor's loud tone of voice in speaking to his apprentice. Winter testified that he heard the grievor, on the afternoon of July 11, call his apprentice "a bitch and a witch". Similarly, mechanic Guy Trudell testified that at Wapakeka in July when he first introduced himseff, the grievor told him that his apprentice was causing a lot of trouble, that she had no business being in a working man's environment, and that she should be down south. Further, acting airport foreman Buddy Cromarty testified that in August at Wunnummin Lake, the grievor told him that Davis was "good for nothing", that it was the wrong environment for a female and that she was "a bitch". Given comments.of, this nature, and the grie~or's bizarre treatment of Elaine Davis, we must conclude that the grievor has demonstrated a negative attitude towards women worlclng in a trade in a northern environment. We would agree there is no reason why the grievor was subjected to the indignities of the Gallagher investigation in September 1991. However, that does not erase the fact that the grievor's obvious misconduct towards Elaine Davis occurred during the preceding months. The union' maintains that by dismissing the grievor in December· 1991, the employer was attempting to impose discipline twice. We 'do not agree with that submission · and in our view there is no "double jeopardy" in this case. 21 As indicated previously, it is unusual that a probationary employee is formally disciplined during the probationary term. Nevertheless, the grievor knew on July 25, 1991 that his job was on the line and that any further misconduct could lead to further discipline including dismissal. Mention was made in argument.that the Deputy Minister should have been called upon to testify. We had before us only her written reasons for dismissal. Be that as it may, we heard ample evidence of the reasons for .the recommendation for dismissal from regional management representatives Catherine Shaw and Louis Richard. Neither management representative was made privy to the contents of either the Gallagher report or the Gallop report. The letter of Malcolm Smeaton of Downsview to Northwestern Regional Director Larry Lambert, dated December 9, 1991,. makes it clear that the Gallagher Report concluded that the grievor's conduct towards Davis constituted ~exual harassment. It would appear that the Deputy Minister wisely rejected that conclusion. As · stated in the letter of December_20, 1991, the Deputy Minister's decision to dis'mi.ss the grievor was grounded on "harassing behaviour towards a co-wOrker, Elaine Davis". We have' anxiously reviewed the events and submissions and we feel constrained to uphold the dismissal in these particular circumstances. Discharge is a harsh result in light of the current economic conditions.' However, the board must deal with the legal realities. Given the grievor's probationary status, the three day suspension imposed for just cause on July 25, 1991, and the fact that the pattern Of abusive behaviour towards Elaine Davis continued largely unabated thereafter, we find that the employer had just cause for 22 dismissal. In the result, this grievance is dismissed. DATED at Brantford, Ontario, thisr'2 th day of Hay, 1994. ' .. R.L. VERITY~ Q.c. - VICE-CIteR 'I DISSENT' DISSENT ATTACHED I. THOMPSON --MEMBER D. MONTROSE - MEMBER DISSEI~ On page 21 'of the award it concludes that the Deputy Minister rejected the Gallagher report because she wisely deleted reference to "sexual harassment". There is a absolutely no basis for the majority to reach this ., .conclusion since we never heard from the Deputy~Minister on what basis she made her decision to terminate the grievor. We do know however that she had received the Gallagher report because this was stated in a letter from Malcolm Smeaton (Exhibit 22). It was admitted by the Employer that the Gallagher report was flaWed'in many ways. .As a result of this admission it made it more imperative that we should have heard from the Deputy Minister as to what weight she attached to the report and its conclusions in making her decision to terminate the grievor. How does this Board know what the Deputy Minister was told about the harassing behaviour towards co-worker, Elaine Davis. Did she read the report and what did it say. Since she was the ultimate decision maker we should have heard from her. It has been held by the G.S.B. in many awards that this should be done. Since we didn't, an adverse inference should be drawn against the employer and the grievance should have been allowed. The recommendation to dismiss the grievor was made by Mr. Smeaton in a memo to Mr. Lambert, Regional Director, North Western Region (Exhibit'22). We never heard from either of these people. Catherine Shaw and Louis Richard said they were the ones who made the recommendation to terminate the grievor and they had never read the Gallagher report. Even if that is so they were not the ones who made the final decision and the ones who made the' decision had read the flawed and tainted report. I just don't understand how the majority reached the conclusion they did and how they dismissed this flaw in the employers case so easily. I am also disturbed that they dismissed the Union counsel's argument on double jeopardy, I always understood that people should not be punished twice fo~ the same incident. - Obviously the majority doesn't agree wi~h this either. The grievor was punished for all incidents prior to July 25th when he was given a three day suspension by' Louis Richard (Letter dated July 25/91). On page 20 in the last paragraph the award refers to the grievor's misconduct towards Davis in the preceding months. It does not focus on the relationship between'the two only after .the July suspension. Davis continued to complain in her diary but even she. admitted the relationship was improving. The only person having any trouble with the grievor after July was Davis. No one else had any complaints including the native people who all said he treated them all right. The award mentions at one point that the grievor was on a deliberate'campaign'to discredit Davis. In my opinion it was just the reverse. From'the very first day she began to complain that the grievor was not teaching her anything. To this point she had only worked 8 days as an apprentice. Ali her work had been in the garage in Thunder Bay. In fact according to her diary she only worked a total of, six tours totalling 48 days. No wonder the grievor was critical of her work when she was' supposed to be a qualified apprentice with 3 months experience when she had only worked at the trade for 8 days. I disassociate myself from the conclusions reached by the majority in the full paragraph on page 19 second sentence. Davis was determined for some reason not to like working with the grievor and began to undermine his position with-everyone from the beginning, I can agree that the grievor's conduct towards Davis left something to be desired but his relationship with everyone else was all right. He should have gone a little easier with. everyone being a new employee. Because the Deputy Ministry was not called to give evident as to her reason for dismissal and because I feel the argument of double jeopardy was not sufficiently considered and acoepted, I would have alloWed the grievance. I.~.~ Thomson, Member