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HomeMy WebLinkAbout1992-0974.Santos.95-02-03 .. 1>iSi'Y'lci6sal- (jne..'iOr da.t.V1A c::i.l.J~ W/o j..,!rl-tllLU.( - - di<;.nu.~ I~ ~ 'q-z. -10... har-a$9I~ .;; ""'i. ~..,' ONTARIt." 1("":.):: EMPLOYES DE LA COURONNE c..o-~~^ ~ ,ct,<', -\r) It:; ( , CROWN EMPLOYEES DE L 'ONTARIO 1111 GRIEVANCE CpMMISSION DE -,dl~ - t..Un,,)~+ ~ ~ SETTLEMENT REGLEMENT d..\<f.~'I~ - '6ne.vor re,"",~ BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G 1Z8 TELEPHONEITEtLEtPHONE. (476) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G 1Z8 FACSIMILE ITELEtCOPIE (476) 326-7396 974/92 IN THI MATTER OP AN ARBITRATION 92C915 Under TBE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TBE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Santos) Grievor - and - The Crown in Right of ontario (Ministry of Health) Employer BEPORE: H. waisglass Vice-Chairperson E. Seymour Member M. O'Toole Member POR TBE N. Coleman UHION Counsel Gowling Strathy & Henderson Barristers & Solicitors POR THE M. Quick EMPLOYER Counsel Legal Services Branch Ministry of Health BEARING June 9, 1993 October 12, 1993 November 5, 9, 1993 December 1, 2, 3, 9, 10, 1993 May 2, 4, 10, 11, 16, 17, 18, 19, 30, 31, 1994 July 21, 26, 1994 September 16, 26, 1994 October 7, 24, 1994 November 23, 24, 1994 - "~ ~ I 1'> 2 r DECISION Backaround to the Dlspute Graciano Santos, employed wlth the Mlnistry Slnce May, 1981, as a secur1ty offlcer at the Queen Street Mental Health Centre [QSMHCJ, by a grlevance dated Aprll 13, 1992, clalms that he was "dlsmlssed without just cause" and asks "to be reinstated to my posltion retroactive to the date of dism1ssal wlth full pay, benefits, seniority" [Exhibl t lJ r Employer's counsel submltS that Mr Santos [the grievorJ was suspended and re1nstated ln October-November, 1991, pending the investigation of a sexual harassment complaint flIed by Ms Kathy Crulckshank, a Registered Nurse, [the complainant] also employed at the QSMHC, who at all mater1al tlmes worked the n1ght sh1fts [11 pm to 7 30 amJ 1n the Admltting Department As the consequence of an investigat10n Wh1Ch had followed hlS suspenSlon, Santos was d1smlssed 1n March, 1992 Counsel submlts that the evidence proves the gr1evor had sexually harassed the complalnant over a per10d between some t1me in 1989 and July, 1991, by engaglng In a course of vexatious comments and conduct that was unwelcome or that he ought to have known was unwelcome She subm1ts that the grlevorharassed the complalnant not only wlth numerous 1nappropr1ate and humlllatlng sexual comments, but also when he "grabbed and (, fondled" her on two occasions Employer's counsel submltS the evidence proves that the grievor's offense of sexual harassment was sufflclently serious to justify hlS dismissal, notwithstandlng a record of long and satisfactory service which is without dlscipllne and wlthout anything adverse in his appraisals And further, counsel argues that the seriousness of the offense calls for "zero tolerance", and compels the grlevor's dlsmlssal if we find on the eVldence convlnclng proof of the complalnant's allegations Ms Quick alerted us from the outset to the most crihcal lssue ln thlS case, WhlCh 1S the cred1b1lity of the w1tnesses, particularly regardlng dlfferences , I '- 1- ~ :1. <i 3 1n the evidence of the compla1nant and the grievor Ant1c1pat1ng quest10ns why the compla1nant put up w1th the gr1evor's behav10ur over a prolonged per10d and why it took so long before she decided to compla1n, counsel relles largely on the eV1dence of Dr Elaine Bor1ns, psych1atrist, an expert w1tness on v1ct1ms of sexual assaults, in support of the Employer's argument that the delay 1n bringing the matter to management's attention 1S cons1stent with the behav10ur frequently experienced among those who have suffered the trauma of a sexual assault She relies also on certa1n arbitration awards cited below From the beg1nn1ng, Employer's counsel declared her intent10n to call on the eV1dence of all of her w1tnesses except Dr Bor1ns before she called for the eV1dence Ms Cruickshank, the complainant, as a witnesses In splte of the expreSS10ns by Un10n counsel and the panel members 1n the1r preference for hear1ng much earl1er in the proceed1ngs the part1culars of the compla1nt from the complalnant herself, the Employer's counsel perslsted ln her orlglnal 1ntent1ons to produce the complainant only after we heard evidence from Mi.ndy G1nsler and Ricki Grushcow on the Employer's sexual harassment policy, Gerry Sloot on the security organization at the QSMHC Centre, ~Glsela Albrecht, the manager who received the complaint, Wayne Yetman the Invest1gator of Cruickshank's compla1nt, followed by several employees It snould be noted that at no p01nt dur1ng the proceed1ngs d1d Ms QU1ck 1nd1cate any intention to call as one of her several w1tnesses the manager who had made the dec1sion to dismiss Santos, nor did she at any time during the proceed1ngs offer to produce the letter of dism1ssal as documentary evidence It was not until after she had closed her case that she asked for the Un10n counsel's consent to SUbm1t as evidence management's letter of dism1ssal That happened on May 18, 1994, after the Employer's case was closed The Union refused the request and promptly presented a motion of non-suit, but would not be put to 1ts elect10n We then accepted Mr Coleman's motion to adjourn until the next morning, permitting both counsel to prepare their respective arguments on the non-suit motion When we re-convened the next day Ms Quick surprlsed us wlth a motion to re-ooen the case for the sole purpose of permtt1ng the Employer to enter the dismissal letter 1nto eV1dence I " :!:" ~ ., 4 The two motions were heard and decided together After hearIng and consIderIng the submIssIons of counsel, we promptly made an oral rulIng to dismiss both motIons, but without reasons The reasons wIll be gIven below Union counsel submits that the allegations of sexual harassment are not believable He claIms the evidence presents a dIfferent view of the grIevor and the alleged incidents than what the Employer seeks to create It shows Santos, a 12-year employee with POSItIve performance assessments and WIthout any discipline, is commended by many of the Employer's own witnesses as a very f~' good employee He has a good reputation as outgoing, fun-lOVIng, a humorous, generous and popular person, who is generally well-liked among employees at the Centre His frIendly, bantering, JokIng relationship WIth the complainant IS not at all compatible or conSIstent WIth the allegatIons There IS only one complaInant The InvestIgatIon dId not produce any others Counsel submits that the grievor did not grab and fondle the complainant, although he acknowledges that on one occasion he had touched her in a harmless and playful manner, while both were engaged in JokIng, teaSIng and bantering exchanges In which the complaInant participated He SUbmIts the complainant had done nothing to let him know that hIS conduct was unwanted or in any way offenSIve The eVIdence of the Employer's witnesses, including the complaInant herself, supports the grievor's claim that they were frIends, that the grievor l' \. and complainant had a frIendly relatIonship WhICh included jokIng exchanges between them He SUbmItS further there was a history of sexual bantering between them WhICh was commonplace among employees at the Mental Health Centre The grIevor's evidence was that he was never previously told by the complainant or instructed by management that any of his comments or conduct were unacceptable, or that they may be regarded as sexual harassment The grievor told us that he would not have engaged in any of the bantering, joking or "foolIng around" If the complainant would have told him at any time that his behaviour dIsturbed or offended her in any way He testified he would be the fIrst to apologIze if told he had done anything wrong Counsel submits that at all relevant times the Employer had tolerated such )obng' or bantering of a sexual nature, WhICh was typical among employees in the workplace, and I -. - ~ ~ ~ . 5 that the Employer had done nothlng, prlor to the complalnt to lnform Santos that the conduct WhlCh had been qUlte commonplace ln the workplace was no longer acceptable Mr Coleman clalms the Employer's eVldence on ltS Sexual Harassment Pollcles serves only as a "red herring" The pollcles are not on trlal The Unlon acknowledges such pollcles eXlsted ln a general way, but lt denles the grtevor was made aware of them prior to the alleged incldents WhlCh comprtse the complaint Nevertheless, counsel does not deny that offenstve and vexattOUS conduct which, lf proven to constltute sexual harassment, would be Just cause for disclplinary actlon, no matter whether the more recent or the earlter sexual harassment pollcles were appllcable In any event, he SUbmltS, the grlevor's conduct does not constltute sexual harassment Unton counsel approprtately pOlnts out that the onus on the Employer, tn this dispute, is not to prove the existence of sexual harassment pollcles WhlCh are admltted, but rather to prove the allegations of the complainant, on the balance of probabilittes, with clear, cogent, and convtncing evtdence Thus, he asserts, the key clear issues before us is to determtne on the eVldence, ftrst, whether the alleged incldents had actually happened, and secondly whether or not the grlevor knew, or should have known, that his conduct was ob]ectlonable to the point of amountlng to sexual harassment ~ The Employer's Sexual Harassment PolIcIes Employer Counsel submitted a book, Documents Pertainlna to Sexual Harassment Pollcies [Exhibit 2J, containtng papers at 17 tabs Two wttnesses for the Employer identified the documents in Exhiblt 2, and explatned the pOltCles Mtndv Ginsler, who in the perlod September, 1989 to June, 1991 was the ProJect Coordinator in the Human Resources Secretariat responsible for the development and lmplementation of the ov~rall sexual harassment policles, including the legal, communications and tralning aspects, and Rickl Grushcow. manager, Employment Equity Program, Mtnistry of Health ~I '-~\ l' 6 ' . ?' . TAB 1 copy of a Management Board of Cablnet document dated September 13, 1989 entltled "OPS POLICY ON SEXUAL HARASSMENT--COMMUNICATIONS STRATEGY" , prepared by Jane Courtemanche, Marketlng & Comrnunlcatlons Servlces Branch TAB 2 copy of a memorandum dated December 1, 1989, from Elalne M Todress, Deputy Mlnlster, Human Resources Secretarlat, Management Board of Cabinet, addressed to All Deputy Mlnlsters, drawlng thelr attentlon to "the new sexual harassment poltcy", "developed 1n conJunctlon wlth mlnlstry representatlves", "whlch strengthens the sexual harassment provislons of the eXlstlng personal harassment policy", and wh1ch was "introduced, effectlve December 1, 1989" The memorandum refers to certaln enclosures "the policy directive" {TAB 3}, "a gUlde to the pollcy" {TAB 4}, and "a sample letter which you may w1sh to adapt to communicate your support for thlS pollcy to your employees" TAB 3 0 P 5 Sexual Harassment POllCY Dlrect1ve, Dated November 27, 1989 TAB 4 0 P S GUlde to Sexual Harassment Policy Dated November 20 1989 lAB ~ Copy fAt 1 ' ' (->- o r lC e 27 10 [Sexual HarassmentJ of Collecttve Agreement, TAB 6 Copy of Artlcle 27 10 [5 lJ~nuary 1, 1989 to December 31, 1991 exua arassmentJ of Collective Agreement TAB 7 Copy of Sect10ns 6 9(1)(f) ~~~~ary 1, 1992 to December 31, 1993 TAB 8 S 1 H ' , of Human Rlahts Code, SO 1981 C 53 exua arassment Pollcy--Role of Advlsor ' TAB 9 Extracts from TOPICAL-December 8 19 . pollcy revlsed" and copy f J ,89 Arttcle, "Sexual harassment Mlnlster, Human'Resources ~ecro~nt.L~tter from Elalne Todress, Deputy TAB 10 Letter dated July 9 1~9~rl~ and Jlm Clancy, President, OPSEU to ADM's, Branch Olrectors'H ' rom Dr Barkin, Deputy Mlnlster of Health Dlrectors and Laboratory oire~~~~;al Adminlstrators, Reglonal Oistrlct ' TAB 11 Undated brochures on Sexual H Strateglc Planning and Project B arassment, Human Resources Secretarlat [lJ Respondlng to Allegations ~f ~anch ' [llJ Th~derstand your rIghts, resp~~~~~.Har~ssment, a gUIde to help you [iliJThe g~~ ~exuai Harassment Policy Ib~~~e~ and the complaInt process (.,.- P bI exua Harassment Policy Q e.ures for managers \: u IC Servants about h uestIons and answ conmitment to . t e polrcy--part of the ers for OntarIo [IV] Putting an End c;ea~Ing harassment-free work IOntarIo government's and procedures 0 exual Harassment A compl~i~~e: J for everyone TAB 12 A memo d t d n s gUIde to .optIons a e August 20 1990 Equity Progra M" ' , from Rtcki Grushc Administrator~' lmst~y of Health, addressed ow,. manager, Employment TAB 13 Workpla 00' e~c~ostng the TAB 11 brochuresto Reglonal Personnel ce lscrlmlnation & ' among others TAB 14 F~ur undated brochures on D~~:~:~7en: Di rect lVe & GUlde lines, March/92 eVl ence that th na ton and Har QSMHC before thee~a~:r~fP~~lish~d and distrlbuted ~;s;~nt There 1S no e grlevance e employees at I '-., - -:: 't' fi' 7 TAB 15 Letter dated July 24, 1992, from Bob Rae, Premler, & Peter Barnes, Secretary of Cab1net, to all OPS Employees, 1nform1ng them of the new POllCY on "Workplace D1scr1m1nat1on and Harassment Prevent1on" 1ntroduced 1n Apr1l, 1992, "because we recognized that there were no adequate mechanlsms In place for deal1ng w1th harassment and d1scr1m1natlon 1n the workplace" TAB 16 OPSEU, SEFPO Newsletter dated July 16, 1992 TAB 17 OPSEU, SEFPO Newsletter dated July 29, 1992 ************* Unlon Counsel d1d not oppose the admisslon of the documents at Tabs 1 to 12 We agree w1th h1S submlssion that the documents 1n Exh1b1t 2 have very Ilttle if any relevance to the 1ssues 1n d1spute The Union acknowledges and accepts the fact that sexual harassment polic1es existed, partlcularly those expressed 1n the collectlve agreement [Tabs 5 & 6J A few of the documents were Intended for distr1bution among employees to publ1cize the Sexual Harassment POIICY which was introduced on December 1, 1989 There 1S no eV1dence the gr1evor had actually rece1ved any of the publ1City mater1als 1ntended for d1strlbut1on at the workplace Those at Tabs 13 to 17, 1nclusive, were prepared to publlcize the new Workplace D1scr1m1nat1on and Harassment Prevent10n Polic1es Wh1Ch dld not become effect1ve until April, 1992, Wh1Ch 1S after the gr1evor's d1smlssal The Employer's witnesses who work at the QSMHC, who were shown the items at Tabs 9, 10, or 11, in Exh1b1t 2, could not clearly recall 1f or when they had prevlously seen or read the documents We accept the obJect1ons of ( Umon Counsel that the items at Tabs 13, 14, 15, 16, and 17 are not relevant because they are dated after the date when Santos was suspended pend1ng the 1nvest1gation of the sexual harassment complaint against him By her handwritten letter dated October 9. 1991, Cru1ckshank brought her complaint to the attention of her supervisor, Vita Clarke [Exhib1t 8J According to her test1mony, the alleged incidents had occurred over a per10d commencing some time in 1989, and culm1nat1ng with the incident on the night of July 19, 1991 Santos's 1991 Attendance Record [Exh1bit 26J shows h1S absence on susDension for the Der10d October 21 to November 15. inclusive Santos testif1ed he gr1eved the suspenS10n on November 11, 1991 [ExhIbit 31J, which resulted in his reinstatement w1th pay He testified also that after his j ------------- - ~ i I I j :t, Y' 8 I I I relnstatement he submltted another grlevance, dated November 22, 1991, clalmIng "that I am belng treate~ unfalrly and improperly by management In that they have failed to inform me of the complainant's name and the speclfIcs , of the complaint" and that "I have not been given a copy of these allegatIons I I or been IntervIewed although almost 5 weeks have elapsed "The grIevance demanded "an Impartial InvestigatIon" [ExhIbit 32J I ! The grievance, dated April 13/92, was flIed under the 1992-3 CollectIve Agreement We fInd that the Sexu~l Harassment provIsions of that Collective 1~- Agreement, Artlcle 27 10 [ExhIbtt 6J, are relevant and applicable to the ' determInatIon of this dispute, p~rticularly the following sections I 27 10 1 All 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 9r by another employee Harassment means enaaai na in a course of vexati ous comment or conduct that is known or ouaht reasonablv to Ibe known to be unwelcome.{[EMPHASIS IS OURS] (Our Note Thi s defini tion is the I same as in the Ontario Human Rights Code) i 27 10 2 Every employee covered 6y this Collective Agreement has a right to be free from, : (a) a sexual solicitation or advance made by a person in a positi.on to confer, grant or ~eny a benefit or advancement to the employee where the person making the sol idtatton or advance knows or ought reasonably to know that it is unwelcome, or i (b) a reprisal or threat of reprisal for the rejection of a sexual solicitation or advqnce where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit (r advancement to the ~mployee ' 27 10 3 1 The time limits set out in Section 27 2 1 do not apply to complaints under thi~ Article, provided that the complaint is made within a reasonable time of the conduct comolained of. havina reaard to all the cVrcumstances [EMPHASIS IS OURS] I , 27 10 3 2 Where. at any time ei ther before the mak'i na of a comP lai nt or the filina of a artevancei under Article 27. the Emoloyer establishes an investtaatlon of the complaint. or the employee aarees to the establi shment of such I an investiaation. pursuant to anv staff relations pol icv or other procedure of the Employer. the time limits for the processina of the complaint or arievance under Article 27 shall be suspended until the emplovee is c;li ven noti ce in writtna of the res.'ults of the investiaation. [EMPHASIS IS OURS] ! The Collective Agreement expresses the jointly-determined laws of the I workplace It prohIbits and defihes sexual harassment, notwithstanding the I I j i ~- I ! ! I ~ T ~ 9 un11aterally-determ1ned polic1es of the Employer In the event of a confl1ct between the Collect1ve Agreement and the Employer's pol1c1es, the prOV1S10ns of the Collect1ve Agreement are .preferred It 1S slgnificant in this dIspute that the Collective Agreement's provis10ns on sexual harassment suspend the time lim1ts of the grievance procedure {Art1cle 27} "prov1ded that the complatnt 1S made within a reasonable t1me of the conduct complatned of, having regard to all the c1rcumstances" Thus, the collect1ve aareement exoresses the mutual 1nterests of the oart1es 1n avo1dina unreasonable delays 1n confrontina and resolvina alleaat10ns of harassment The Employer does not have the right to delay unduly or unreasonably the commencement and/or the completion of an 1nvestigation w1thout regard for the consequences of such delays upon the legitimate interests of the complainant and the gr1evor The suspension of the t1me 11mits for the processing of compla1nts or gr1evances tn no way bestows upon the Employer the r1ght to unduly and unreasonably delay an Invest1gat1on and thereby delay tak1ng a d1sciplinary act10n, and to do so I w1th impunity The emolovee has a substantive r1aht to the determ1nation of a sexual harassment comolaint without undue or unreasonable delay. r The Un10n submtts that Santos was dtsmissed wtthout Just cause and seeks hts reInstatement with full compensat10n and wIthout loss of benefits and senIorIty This subm1ssion 1S essentially founded on the follow1ng two grounds FIrst, the Employer, who bears the onus of proving that Santos has engaged tn sexual harassment in relation to CruIckshank, has fa1led to to so, on the appropr1ate standard of proof, and on the balance of probab1l1ty, but to a higher degree of probability, given the seriousness of the allegations and the gravity of the consequences for the gr1evor The UnIon relIes on Montaomerv (GSB 1048/85, P 8-10) and Daaaitt (GSB 513/85, p 11-13) Secondly, theUn10n submits that the d1smissal should be set aS1de on the grounds of delay alone It claIms that "the allegations of Ms Cruickshan~ aga1nst Mr Santos were brought to the attention of the Employer on or about October 9, 1991" and that "the Employer did not dismiss Santos unt1l March 22, 1992 The Employer made no effort to explain or excuse th1S undue and unreasonable delay The UnIon submits that the grounds for setting aside the d1sm1ssal are sim1lar to those in the following cases on which 1t rel1es J r' i. 10 Borouah of North York (1979), 20 LAC (2d) 289, Brunsw1ck Bottlina Ltd. (1984), 16 LAC (3d) 249, Vancouver Sh10vards Ltd. (1988), 34L A C (3d) 412 {These cases are examined and considered in the concluding sect10n of th1S award } On Standard of Proof Because th1S 1S a d1sm1ssal case we apply the same standard of proof as the Board has appl1ed tn other dismissal cases The standard of proof in a case of (: thts kind tS set out 1n Re Bernsteln and the Colleae of Phvstcians and Suraeons of Ontarto [15 0 R (2d) 447J where the Ontario D1vis1onal Court stated that the proof must be "clear and conv1nclng based on cogent eV1dence Wh1Ch 1S accepted by the tribunal" and that the "ser1ousness of the charge tS to be cons1dered by the tribunal tn ltS approach to the care it must take 1n dec1d1ng a case which might in fact amount to a sentence of profess1onal death" The grlevor has been charged with a serious offense and a find1ng that he committed the offense exposes him to the risk of the loss of h1S '\ Itvellhood On The Human Costs of the Delays We have no evidence of any invest1gattOns undertaken by the Employer promptly (' after recetvtng the 1n1tial compla1nt [Exh1b1t 8J, and durtng Santos's suspenston Yetman testif1ed h1S investigation lasted about two and a half months, and did not start unt1l late November or early December It concl uded ! i no later than February 15, 1992 We find the delay of more than five months, from October 9, 1991 when the Employer recelved Exhibit 8, and more than a month after the completion of the invest1gation, unt1l Santos's d1smissal on . March 23, 1992, 1S inexcusable, unreasonable, and unfair for the complainant as well as the grievor The prolonged and palnful disrupti.ons to the1r li.ves which the delays have caused both the complalnant and the grievor compels our sympathy and empathy ( --.:-> -:: '1' I) 11 The delays have been unfa1r to the gr1evor because they have 1mpeded and delayed h1S ab1l1ty to defend h1mself Cru1ckshank dId not compla1n to management about Santos's conduct unt1l October 9. 1991. [Exh1b1t 8J about three months after Julv 19. 1991. the last of the alleaed lncldents Santos was suspended wIthout pay pendIng the InvestIgation of the complaInt, for the period from October 21 to November 15, 1991 [Exh1b1t 26J, but there 1S no eVIdence that an Invest1gation was made durIng that per10d HIS suspenSIon gr1evance dated November 12, 1991 [ExhIbit 31J was successful He returned to work on November 18 [ExhIbit 26J StIll no eVIdence of an lnvestlgatlon On November 22 Santos grleved, demandlng "an lmpartial investlgatlon" [Ex 32J Yetman's investigatlon commenced about a week later and was completed no later than mld-February Santos was not dIsmIssed untIl March 23. 1992 H1S d1sm1ssal gr1evance came to a fIrst hearlng on June 9. 1993 We heard h fteen w1tnesses before the Emolover produced the comolalnant on May 2. 1994. when we commenced hearIna the particulars of her alleaations. Having heard Cruickshank's testimony we have some inSIght on why she was not presented as a WItness much earlier We found her to be a reluctant complainant and an uncomfortable w1tness who was displeased and upset by the prolonged process, particularly the Employer's delays and apparent dIsinterest in resolVIng her In1tIal request She told us she was very upset by the Employer's act10ns In f1rst suspend1ng and then dIsmlsslng Santos She told the Employer she did not want the matter pursued to arbltration, and that she preferred to have the matter resolved WIthout his dismIssal Her eVIdence indicates she felt discouraged by management's apparent dISInterest in resolVIng her inItial complaInt and request of October ~ 1991 [ExhIbIt 8J, and that she was unwllling to flle a formal complaint until more than a month later, November 25. 1991 [Exhibit 16J, when she finally succumbed to the pressures she felt from her unresolved problems CrUIckshank asserted her deSIre to be done with her duties as a witness, often rejecting counsel's offers for a break She made very clear she was greatly disturbed by Santos's dismissal She told us in no uncertain terms that if she had known the consequences she would not have submitted the complaint The J 'll ,), 12 delays prolonged the palnfulness of the process and dlsrupted the llves for both the complainant and the grievor On Judging Credibility The submlssions of counsel for both Unlon and Employer agree that the findings of credibi lity of the witnesses, particularly the complalnant and the gnevor, are critlcal to our dlsposition of the case The Employer asks us to Judge the quallty of thelr eVldence "wlth respect to the candor and care wlth which r the evidence was glven, wlth the overall conslstency of the account wlth factual events and the probability that events occurred as they were related" The Unlon asks us to be "cautious about Judging credlbility of a wltness solely on the basls of personal demeanour or appearance of slncerity ln a witness's style of glvlng eVldence", that we "must go beyond mere style of presentation and take lnto account the substance of the eVldence presented" The Union .relies on Farvna v. Chornv. [1952] 2 0 L R 354 (S C C A ) In assessing the credlbllity of the witnesses and maklng findings of fact, we are mindful of the guidelines lald down by Mr Justice O'Hallaran of the Sri tish Columbia Court of Appeal in Farvna v. Chornv. where he states 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 finding and justice would then depend upon the best actor in the witness box On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibi 1 i ty of the evidence of a witness Opportunities for knowledge, powers of observation, judgment and memory, abi 1 i ty to describe clearly what has been seen and heard, as well as other factors, combi ne to produ ce what is called credibility A witness by his manner may create a very unfavourable impression of his truthfulness upon a trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is telling the truth I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie "The c redi bi 1 i ty of the wi tnesses, particularly in cases of confl ict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried a conviction of the truth The test must reasonably subject his story to an examination of 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 wi th the preponderance of the probabi 1 i ti es whi ch a practi cal and { '--- l' () 13 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, experienced and confident wi tnesses, and of those shrewd persons adept in the hal f-l ie and of long and successful experience in combining ski.llful exaggerahon with partial suppression of the truth Agai n a wttness may teshfy what he sincerely believes to be true, but he may be honestly mistaken For a trial Judge to say "I believe him because I judge htm to be tell ing the truth", is to come to a conclusi.on on constderati.on of only hal f the problem In truth it may easi.ly be self-direchon of a dangerous kind "The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses And a Court of Appeal must be satisfied that a trial Judge's finding of credibility is based not on one element only to the exclusi.on of others, but is based on all the elements by whi. ch i. t can be tested in the particular case " On Gender BIas and Other Problems for Fact FI ndl ng From the start of the proceedings we were aware that the cred1bility of the WItnesses is a maJor issue Throughout the proceedIng and fInally by the -, evidence of psychiatry professor Dr Elaine Borins, the Employer's expert witness, we were made aware of the potential perceptual d1fferences between males and females, on what they see or hear This is an important problem for fact-f1nding 1n sexual harassment cases At the same t1me, however, we are aware that bIas and prejudIce are not by any means new problems for Judges and arb1trators as fInders of facts The judic1al process has evolved hIgh standards for impartIalIty and dIspassionateness in fact-finding through the contr1but1ons of many generat10ns of great legal mInds "Law and the Modern Mind", the work of the great American jurist, the late Judge Jerome Frank [dIstinguished for hIS contributions to the literature of Jurisprudence and legal philosophyJ is a book presenting hIS phIlosophy of legal realism and constructive skept1cism, which has profoundly 1nfluenced legal thinking and fact-finding improvements 1n the judiCIal process In the preface to the SIxth pr1nt1ng rAnchor Books edition, 1963J he notes that "much of the mood which permeates th1S book I later articulated, after I became a judge, in a judicial opinion relative to trial judges, delivered in 1943, 'l: J 14 In re J P Llnghan, 138 F (2d) 650, 652-654 "Democracy must, indeed, fail unless our courts try cases fai rly , and there can be no fai r trial before a judge lacking in impartiality and disinterested- ness If, however, 'bias' and 'partiality' be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fai r trial and no one ever will The human mi nd, even in infancy, is no blank piece of paper We are born with predispositions, and the process of education, fo rm a 1 and informal, creates attitudes in all men which affect them in judging si tuations , attitudes whi ch precede reasoning in particular instances and which, therefore, by defi ni ti on are pre-judices Without acquired 'slants', pre-conceptions, 1 He could not go on Every habit consti tutes a pre-judgment, were those prejudgments which we call habits absent in any person, were he obi iged to treat every event as an unprecedented crisis presenting a wholly .l"..... new problem he would go mad Interests, poi nts of view, preferences are the essence of 1 i vi ng Only death yields complete dispassionateness, for such di spassionateness' signi fies utter indifference 'To live is to have a vocation, and to have a vocation is to have an ethics or scheme of values, and to have a scheme of values is to have a point of view, and to have a point of vi ew i sto have a prej udi ce or bias , An 'open mind', in the sense of a mi nd contai ni ng no preconceptions whatever, would be a mind incapable of learning anything, would be that of of an utterly emotionless human being, corresponding to the psychiatri st' s descri ptions of the feeble-minded More di rectly to the poi nt, every human soci. ety has a multitude of establt shed atti tudes, unquestioned postulates Cosmically, they may seem parochial prejudices, but many of them represent the community's most cherished values and ideals Such social pre-conceptions, the 'value judgments' which members of any gi ven soci ety take for granted and use as the unspoken axi oms of thinking, find their way into that society's legal system, become what has been termed 'the valuation system of the law' The judge in our society has a duty to act in accordance to those basic predilections inheri ng in our legal system (although he has the right, at times, to urge that some of them be modi fi ed or abandoned) The standard of dispassionateness obviously does not requi re the judge to rid himsel f of the unconscious influence of such social attitudes ( "In addition to those acquired social value judgments, eve ry judge, howeve r, unavoidably has many idiosyncratic 'leanings of the mind', uniquely personal prejudices, which may interfere with his fairness at a trial He may be stimulated by unconscious sympathies for, or antipathies to, some of the witnesses, lawyers or parties in a case before him As Josiah Royce observed, 'Oddities of feature or complexion, slight physical variations f rom the customary, a strange dress, a scar a too-steady look, a limp, a loud or deep voice, any of these peculiarities may be to one, an object of fascinated curiosity, to another , an intense irritation, an object of vi.olent anti pathy , Franklv to recoanize the existence of such orejudices is the 00 rt of wi sdom . The conscientious iudae will. as far as oossible. make himself aware of his biases of this character. and. bv that verv sel f- knowledae. null ifv thei r effect. Much harm i.s done by the myth that, merely by putting on a black robe and taking the oath of office as a judge, a man ceases to be human and stri.ps himself of all predi lections, becomes a passionless thinking machine The concealment of the human el ement in the judicial process allows that element to operate in an exaggerated manner, the sun1i.aht of awareness has an antiseotic effect on oreiudices. Freely avowing that he is a human being, the judge can and should, through self scrutiny, prevent the operation of this class of biases This self-knowledge is needed in a judge ...... ".i. 15 because he is pecul iarly exposed to emoti.onal influences, the 'court room 1S a place of surging emotions ,the parties are keyed up to the contest, often in open defi.ance, and the topics at issue are often calculated to stir up the sympathy, prej udi ce , or ridicule of the tribunal , The judge's decision turns, often, on what he believes to be the facts of the case As a fact-finder, he is himself a witness -a wi tness of the wi tnesses, he should, therefore, 1 ea rn to avoid the errors which, because of prejudice, often affect those witnesses "But, just because his fact-fi.nding is based on his estimates of the witnesses, of thei r rel iobi 1 i ty as reporters of what they saw and heard, it is hi s duty, while listening to and watching them, to form atti tudes towards them He must do hi s best to ascertai n thei r moti ves, thei r biases, their dominating passions an.d interests, for only so can he judge of the accuracy of thei r narrations He must also shrewdly observe the stratagems of the opposi ng lawyers, perceive their efforts to sway him by appeals to his predi lections He must canni ly penetrate through the surface of thei r remarks to thei r real purposes and motives He has an offi dal obligation to become prejudiced in that sense Impartialitv is not aul h bil i tv Disinterestedness does not mean child-like innocence If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render ded sions His findings of fact may be erroneous, for, being human, he is not infallible, indeed, a judge who purports to be super-human is likely to be dominated by improper motives [EmphaSIs ours) To paraphrase Judge Frank, a general rule agalnst sexual harassment is eminently just and fairly certain, "but a court decision that a partlcular man committed [sexual harassment] is surely unjust if in truth he di.d not so act, yet a trlal court mlstakenly belleves he dld, because of lts bellef ln the rellabi.lity of oral testimony which does not match the actual facts" As ln most cases llke this, the partles dlspute the facts The lntruslon of lnaccurate oral testlmony, in our case, comes not from lYlng or dlshonest witnesses, but rather from the two prlnclpal wltnesses who have conflictlng and inconslstent perceptions of the alleged incidents, neither of which may match the actual facts Further, they can not recall critical circumstances and aspects of those incldents, and reliable corroborative eVldence is not available Their abllity to recall the events of more than two or three years ago are not improved wlth the passage of tlme Upon cross examlnatlon they readlly acknowledge the shortcomings of thelr memorles The quality of the eVldence has been prejudlced by the passage of time Jerome Frank's admonlshments, his constructive approach to fact flndlng in the legal process profoundly influence the conscious efforts of this arbltration panel to be more aware of and overcome our personal and improper biases In ~ 16 the process of comlng to a clear common Vlew of the eVldence, In evaluatlng the confllcts in the testlmony, we made painstaklng and deliberate efforts to correct each other's errors in perceptions of facts Our efforts, however, are to elimlnate errors In perception Even if we would be capable of doing so, we would not attempt to replace our male blases with female biases Female biases are no more acceptable than male biases in a ~ustice system We have deliberately opted for an androgynous human standard of integrlty in fact-finding the long-established and tested reasonable person rule for r Judging the conduct in questlon The reasonable person rule embraces both the reasonable man and the reasonable woman, and is based on their ablllty to agree ln thelr assessments of behaviours WhlCh constltute harassment ************************************** THE EMPLOYER'S WITNESSES. IN THE ORDER IN WHICH THEY WERE HEARD Except for Ms Glnsler's evidence on the sexual harassment policies WhlCh was C described above, the evidence glven by the Employer's witnesses are summarized below In the order in whIch the witnesses were presented The Evidence of Gerry Sloot Gerry Sloot testifIed October 12, 1993 Upon the retirement of Robert Frost, Manager of the Security Services at QSMHC, Sloot was appointed Acting Security Manager in October, 1992, more than six months after Santos's dismissal Because he had not previously worked in the Security Services at QSMHC, his evidence had limited usefulness or relevance He testified on the administration of the securIty department, the number of security officers, l~ - -- ~ . 17 the\r hours of work, the application of the master sh\ft schedule under the compressed work week agreement for secur\ty officers [Exhib\t 3J, the dut\es and respOnS\bll\t\es for Santos's posit\on, Secur\ty Off\cer 3, [Exh\b\t 4J H\s evidence on the lnformatlon and tralning recelved by the security staff on the subJect of sexual harassment is not relevant because it concerned post- grlevance events He could not give relevant evidence on what happened in the department prior to his appointment as actlng manager However, he provided relevant eVldence on the QSMHC premlses, the slte and floor plans, explalnlng Exhlbits 5(a) and (b), and (6) He was helpful when he escorted us on November 9, 1993, ln "taklng a vlew" of the locations where the alleged offenses were to have taken place The Evidence of GIsela Albrecht Glsela Albrecht test\fled on October 12 and November 5, 1993 She was assistant d\rector of nursing at QSMHC from 1976 until February, 1993, when she became acting assistant admtnlstrator, nurs\ng She descrlbed the organlzatlon of the nursing department, the stafflng requ\rements, hours of work, the shift schedules for continuous operations through 24 hours every day of the week, with particular attention to the staffing requlrements for the night Shlft in Admltting {Cruickshank at the material times worked ln Adm\tting on the night shift, 11pm to 7 30am} Albrecht testif\ed that a Nurse Coordinator is the only management person on slte durlng the night shift There are no Head Nurses on the nlght shift Admittlng staff for the night sh\ft is comprised of one RN and a clerk who works in Admittlng untl1 4 am and then completes the rest of her sh\ft in the Coord\nator's offlce The Duty Doctor spends tlme in the Department as needed, or as he may wish When hlS services are not required he would be at rest in the Duty Physlcian'5 room which lS close to Admitting The clerk \5 responsible for retrievlng patient files from other parts of the hospital, when needed, but at times it might be done by the nlght nurse When retrieving flIes from basement rooms, a security officer would be asked to accompany the clerk or RN ., , 18 Albrecht test1f1ed also that the night nurse 1S ent1tled to rel1ef for a one- hour meal break when she would usually take a rest 1n Adm1tting "In a room where there's a bed and sink, next to the sitting room" [Exh1blt 6J The n1ght nurse requires the presence of a security offlcer when patlents are brought In or present themselves for assessment A securlty offlcer is needed to control patlents and also, at tlmes, to escort them from Admittlng to a ward The secur1ty needs are enhanced by the fact that the RN works alone on the n1ght Shlfts In Admlttlng, except for a clerk who IS not always present Albrecht's evidence is that on October 10, 1991, Vita Clarke, Head Nurse, r"' Admlttlng, had glven her the letter dated October 9 [Exhlbit 8J WhlCh she had recelVed from Crulckshank She spoke to both of them together on the same day Albrecht recalled much of what Cruickshank told her about the sexual thlngs Santos had said and done on var10US unspecifled occaSlons, culmlnatlng In an incident which happened "In early 1991, In the admlttlng area offlce" Cruickshank's letter asked not to be scheduled to work on the same nlght Sh1ft when Santos was on duty, explainlng "I haven't made this request before because I thought I could handle 1t on my own Lately, however its been causing me a great deal of distress, and I'm becomlng very nervous when work1ng on my own " In order to deal with this request Albrecht sald "I told her I would have to take the matter further to Frost, Santos's manager, but I was not able to contact Frost until October 16 I showed hlm ( her letter and told him about our conversatlon He decided he wanted to meet Cruickshank " Albrecht testlfled that Crulckshank and Frost met in her presence on October 16, 1991, "when she told hlm the same events she told me, this tlme she had her date book wlth her and she gave some dates as to when some events had occurred " After that meeting, she said, Santos was suspended pendlng an investlgatlon of the sexual harassment charges, and then he was re-lnstated before his dismlssal She testlfied also that she told Crulckshank that every effort would be made to book her on dates when Santos was not worklng, but she worked very few Shlfts "prior to Santos's dismissal" because "she dld not make herself available" i- \. - ~ . 19 In cross examlnatlon, Albrecht conflrmed that Crulckshank, as a part-t lme employee, had a rlght to refuse partlcular Shlfts, and that she was not always able to take the shifts offered to her because she was also a part-tlme nurse at another hospltal She confirmed also that not all nurses were lnformed of the Sexual Harassment Policy prior to Santos's dismissal even although she thought that the Directlve [Exhibit 2, Tab 3J had been placed ln the Manual of Admlnlstration, which lS avallable at each nurslng statlon ln the hospltal, and also that the publlcity pamphlets at Tab 14 were not dlstributed to the staff untll some tlme after March, 1992 Nor could Ms Albrecht say for sure that the memorandum on sexual harassment dated December 8, 1989 [Tab 9, second pageJ was actually recelved by all of the staff at QSMHC, because they may not have plcked up the coples WhlCh had been left for them ln a stack at the pay office, to be taken when they came for thelr pay cheques, and also because many employees have thelr pay sent to thelr homes or thelr banks Albrecht's cross examinatlon concluded wlth her conflrmatlon that she had been aware that, prlor to March, 1992, there was some bantering and ]Oklng around of a sexual nature between male and female staff members [Albrecht was not re-examined J The EVl dence . of Ri Ckl Grushcow Rlcki Grushcow, Manager, Employment EqUlty Office, Mlnlstryof Health, testlfled on November 5, 1993 She testlfied that she had been lnvolved ln the development and admlnlstratlon of the sexual harassment pollcy whlch flrst came lnto effect ln December, 1989, and also in the lmplementatlon of the revised policy which became effective in mid-1992 She described her responsibllities, WhlCh included the preparation of the July 9/90 letter for the Deputy Minister [Exhibit 2, Tab 10J and her own memo to personnel admlnlstrators [Tab llJ, for the posting of informatlon and dlstrlbutlon of brochures ln workplaces, and for staff tralning on the sexual harassment POllCY Because she relied on others for the actual distributlon of the publications to employees at the QSMHC, she could not say personally to what extent the dlstrlbutlon pollcles were carrled out - ~. -- ---...-- ----~--- ~ . 20 Grushcow testlfled that staff trainlng on the POllCY dld not start at the QSMHC until the summer, 1992 In cross examination she acknowledged that the maln reasons for lntroducing the staff trainlng under the revlsed pollcies of 1992 was to overcome the problems [lJ that the employees had not taken serlously the Employer's determination to enforce its harassment pollcies, [2J that they did not fully understand or accept what might have been acceptable before the POllCY was now unacceptable behavlour under the sexual harassment policy, and [3J that they were unaware of the seriousness of the consequences p~ t The Evidence of Mira Bazzul Mlra Bazzul has been employed in the Minlstry of Health as Advisor on Sexual Harassment Slnce December, 1989, and also, Slnce March, 1992, she has been the WDHP Coordinator She testlfied November 5, 1993 Her flrst contact with Cruickshank was on October 16, 1991, when they met alone for about two hours At the start of the meeting the complainant was "upset, constrained, had difficulty in talking and sharing information with me", until Bazzul explained her role and the policy, and assured her that her information would be confidential Bazzul testified that the complainant chose the informal process after the discussion about the formal process had upset her, dlsturbed by the thought of "more people gettlng to know" Bazzul sald they talked again on (- October 22nd, when Cruickshank "telephoned because she was upset to learn that Santos had been suspended and it was becoming public knowledge within the QSMHC" Later, in a telephone conversation on November 13th, "Cruickshank expressed her dissatisfactlon with the informal process and indicated she might want the formal process, but when I explained the formal complaint would have to go to the Deputy Mlnister, she didn't want it to go that far" "About November 25, 1991, we received her formal complalnt I don't recall having further contacts after that " Union counsel did not cross examine the wltness but indicated he may wlsh to recall her after the evidence of the complainant is heard He did not exerClse that optlon t - ~ ~ I 21 The EVldence of Wayne Yetman Wayne Yetman testtfted on November 9 and December 1, 1993, wtth the atd of hts own notes made at the time of hlS two lnterviews with the grlevor At that ttme he was a manager tn the Mtnistry of Natural Resources, a traIned Investtgator under Sexual Harassment Policies since 1990, and also a WDHP CoordInator He was appointed the Investigator of the complatnt agalnst Santos He had served as Investlgator ln one prevlous case He could not say exactly when his investigation had started and ended, but he belteves it lasted about two and a half months, endlng some time in February, 1992 In cross examlnatlon Yetman testifted that Santos had already returned from h1S suspens10n when h1S 1nvest1gation commenced and that Santos was dism1ssed after he had concluded hlS tnvestlgation Yetman's f1rst interview with Santos followed hlS ftrst lntervlew wlth the complalnant and his purpose was to get the grievor's responses to the formal complaint The Investigator's stated purpose for the second interview was to fulflll hlS obligation to the grievor to report back to him on the lnformatlon he obtained from the complainant and others, including those prev10usly proposed by the grtevor, and to give an opportunity to the gr1evor to rebut any relevant information he had obtained in interv1ews w1th the complainant and others As was hts rlght, the grievor was accompanted by his steward at the interviews In direct exam1nation Yetman testified that Santos cooperated wlth him at all ttmes tn the tnvestigatton In cross examinatIon, Yetman acknowledged a dtsttnction may be made between sexual comments whtch are intended to be sexually entIcing and comments of a sexual nature that are joking exchanges between friends, without any intent10n of having sexual relations He expressed the view, however, that what may be interpreted by one person as innocent banter could be seen by another less powerful person as a steppIng stone to further sexual posstbtlttles In h1S Judgment banter is prohibited if it is offensive, whether or not it lS intended to lead to sexual relat10ns I, I 22 Yetman's evtdence tS certatnly not the best evtdence avatlable on the complatnant's allegattons and the grtevor's defense We accepted the proposals of Employer's counsel to hear htm testtfy on hts intervtews as the Investlgator while we reserved our Judgment on what mayor may not be hearsay evidence At the same tlme, we questtoned how useful it lS to have hlm testlfy on what others told hlm when better eVldence lS avallable from the very people he had lntervlewed and who are able to glve us thelr testlmony dlrectty He experlenced conslderable dlfficulty givlng us a rellable lnterpretatlon of his notes on Santos's repltes to unknown questions WhlCh he had not recorded r " We found, by hlS own admisslons, that his notes could not be reI led upon for accuracy on many lmportant pOlnts We have chosen not to set out in detall Yetman's testlmony Whlle not completely 19nOrtng his eVldence, we put prlmary wetght on the more direct evidence WhlCh the complainant and grlevor provlded when they became avallable to test1fy much later in these proceed1ngs It is unnecessary to refer to the Investigator's eVldence except perhaps 1n relat10n to particular lssues on the cred1billty of the gr1evor's or compla1nant's eV1dence It 1S noted that Yetman d1d not testlfy on his lnterviews w1th the complainant, or anyone else other than the grlevor The EVIdence of Helen Gerardi ( Helen Gerard1 test1fled on December 1, 1993 She has been employed as a Security Supervisor at the QSMHC for about 18 years Gerardi dld not remember receivlng any correspondence or pamphlets on sexual harassment for dlstrlbutlon to the securlty staff She had only vague recollections of seelng any literature on the subJect dlstrlbuted at the work place She recalled reCelVlng "a whole bunch of papers" WhlCh she didn't read, in a folder she was given 1n a class on sexual harassment She was uncertain when that was She could not recognize the publicat10ns WhlCh Counsel showed her When asked what behaviour is prohiblted by the Sexual Harassment Policles, t, '"""" '. 23 Gerardl's spontaneous reply was "I don't understand the whole thlng It s about going too far It's more than touching someone's shoulder I can't touch someone's shoulder" Gerardi testifled she worked the same shift cycle as Santos 2 day shlfts [7am to 7pm], 2 nlght shlfts [7pm to 7am], followed by 4 days off, then repeat For some years before hls troubles started wlth the complalnant whlch ended In hls dlsmlssal, two of her shlfts in each cycle cOlnclded wlth hls Steve Kerr worked the same shlfts as Santos She descrlbed thelr dutles as well as her own, how well the three got along togeth~r, how they kept In communlcatlon wlth each other by "walkle talkie" or the sWltchboard, how they responded promptly to coded emergency calls, and the records they were requlred to make on a dally basls When asked to descrlbe Santos, Gerardl promptly replled "Perfect He's a happy-go-lucky guy I miss him There's nobody there to joke around anymore " Asked If she had ever heard him Joke, she replied "Oh, yes, he's always Joklng " She testlfled that she "got along very well wlth Santos, no problems whatsoever" Although she worked many shlfts with Santos she never heard hlm make sexual Jokes "He was always Joklng, but there wasn't anythlng inapproprlate or I would have spoken to him " Gerardi descrlbed Cruickshank as a very quiet person who "does her paper work and doesn't talk much", "she doesn't talk much wlth anybody" She dldn't thlnk she engaged ln Joklng, and certainly not in sexual banterlng or sexual Joklng Gerardl sald that although Cruickshank never told her as much, "It was my oplnlon she did not llke Santos's "joklng all the tlme" She once heard her say to him "oh, you and your Jokes" She dldn't see Santos react to thls comment because she dldn't see him do anythlng wrong "You seldom see her laughing She never laughs " Gerardl testifled she was in Admitting on several occaSlons when both Santos and Cruickshank were there, but did not hear them ln conversatlon because "she doesn't talk much to anybody" ---------- ~ . 24 In cross examination, Gerardl explalned that Cruickshank never told her that she dld not like Santos "It was only my opinlon she dldn't 11ke hlm because he IS joklng all the time" The EVIdence of Fatima Raza Fatlma Raza testifled on December 2, 1993 Prlor to her promotlon In September,1993, she was the Nlght Clerk for about 10 years, working Sundays through Thursdays, 11 15 pm to 7 am She usually worked 1n Admitt1ng Mondays C through Thursdays, until about 2 15 am when she would take her one-hour break there, and then went to work the balance of her shift in the Nurslng Office, where she also worked on Sundays She did not recall ever gettlng any information or publlcations on the Employer's sexual harassment POllCY Raza described her dutles WhlCh included obtaining patlent flIes or case books for the night nurse If she was too busy to retrieve a case book the N1ght Coordlnator mlght go for it, but never the night nurse when she was present "A couple of times, not often" Raza had to go to the basement to flnd a file She testified that at least one security officer, sometimes two, always accompanied her when she had to leave the Admitting area It was her Job to call security officers to Admitting whenever they were needed They were often there "Cruickshank didn't express a preference on which officer to call She ( would Just say call secur1ty and I would" She often worked in Admitting on the same Shlft as Crulckshank, but not when Cruickshank worked weekends Raza was off on Fridays and Saturdays and worked in the Nursing Office on Sundays Raza described Santos as very helpful and cooperative "I never had any problems with -him" and she never heard hlmengage in sexual bantering or sexual joking Nor did she ever hear Cruickshank talk about sexual things wlth her, with Santos, or with anyone else She never observed Cruickshank behave any differently wlth Santos than with any other securfty officer Raza described Santos as "always helpful to me, I never had any problems with hlm" l -~---- --- " 25 In cross examlnatlon, Raza agreed there was a frlendly enVlronment In Admlttlng, wlth a certaln amount of )Oklng and banterlng gOlng on, In whlch Santos partlclpated When Crulckshank was present she would laugh along WIth everyone else "when Santos was joklng around" As far as she could see, "she [Crulckshank] didn't treat Santos any dlfferent than any other securlty offlcer" She was as frlendly wlth hlm as wtth the others Raza could not recall If any of the jokes she heard were sexual EVIdence of VIta Clarke Adamson Vita Clarke Adamson has been employed at QSMHC Slnce September, 1967 She has worked as a Head Nurse for the past 8 or 9 years tn Admitting, and prlor to that for 11 years In the crlSlS unit She testlfled on December 2, 1993 She recalled seelng publlcations on the Sexual Harassment Pollcy before recelvlng Crulckshank's complalnt, but could not say whtch publicatlons in partIcular, or when or where she recelved them She recalled some informal discu5slons of the pollcy among the staff which did not lnclude security staff When asked what she understood the pollcy to be, she sald "any unwanted approach by another person" As Head Nurse her normal hours are from 7 am to 3 30 pm and she ordlnart ly had occasions to speak to Crulckshank when thelr shlft overlapped, between 7 am to 7 30 am, when they would dlscuss the events of Cruickshank's nlght sh1. ft Adamson had not prev1.ously heard any concerns expressed regarding any security offlcer untll she heard Cruickshank's concerns about Santos, that "Santos tried to touch her and she moved away and almost fell", and when Cruickshank assured her "that she had dealt WIth it" and that "tt was ok" That was thelr first conversation regarding her concerns And on the second occaSlon, about three weeks later, Crulckshank "told me she was bothered by it and dldn't want to work wlth Santos" "1 told her to put it in writing She did, the same day or the next, she gave me her letter" {Exhlblt 8- dated October 9, 1991} "Both of us went with tt to Ms Albrecht" l ~ . 26 Vlta Clarke Adamson testlfled she does not recall hearlng sexual banterlng among the staff 1n the Admltt1ng area, except that "patients would make all sorts of sexual 1nnuendoes and the staff would glve feedback to each other" She testif1ed also that "the n1ght clerk or the n1ght coordinator would go to retr1eve a case book from another area, and only 1f they are not there may the N1ght Nurse 1n Admitting leave the area to go for a case book" In cross exam1nat1on, Adamson acknowledged that patIents would occasIonally say or do thIngs she found personaily embarrass1ng, and "I'd laugh and smile ~ and go back where I can't be seen, and that would be the end of 1t" There were also occasions when the staff would laugh and Joke about the embarrass1ng things pat1ents would say ~nd do It would give r1se to some Jok1ng of a sexual nature among the staff persons present She suggested that the laughter helps relieve the embarrassment or tensions caused by the somewhat abnormal behav10ur of the pat1ents EVldence of Terry Taylor I Terry Taylor, a Secur1ty Supervisor, test1f1ed on December 2, 1993 He saId I he had not seen any publIcations on the sexual harassment policy untIl early in 1992 His understanding of the policy 1S "not to say or do anyth1ng to C> offend somebody or you could be in trouble" He testlf1ed he never worked the same Sh1fts, at the same times, with both Cruickshank and Santos, and only one or two Sh1fts w1th Santos, and two or three at most w1th Cru1ckshank He sald he never heard either of them make any sexual Jokes On one occaS1on, in July, 1991, when he rel1eved Santos after 11 pm, at the end of his shtft, Cru1ckshank told htm she was glad she dtdn't have to put up with Santos's Jokes anymore In cross exam1nat1on he explatned that he understood her to mean she didn't have to put up with him for the balance of her shift He d1dn't pass that comment along to Santos and he was not aware whether Cruickshank had done so He had very little experience with e1ther of them, and he provtded no relevant evidence on the relationship between them l - - .~- '. ....... C:.( ... , ,.. Margaret Walker t:VLuenu~ OT iviur"yun::t Wulke:::r' te:::~tLfle:::U DeLernver' 3, 1993 S lnce March, 1::1::;1, ~he::: hu~ ue:::e:::rl u Nun, UIY Eeluc..utur' Lrl tht:: t::elULc.lt LUria t ser'v lLt::~ ut the ~~MHi. 1n t(lOt pU~ltlurl ~he has ue:::C:::rI Luur'(hfl(..Itur' fur' the::: nur'K.plw..e::: Ui.~Lf'Lrrllrlut tUrI 6. Hur"c..i~~rnt::rlt Put lLY ["unP] Wlel f.t::~purl~lutt:: Fur" YlVlrlg Lrlfur"rrlc..itlUrI ~t::~~lurIS url Lht:: PUllc..y whlLh tH't:: rnWluutuf"Y fUf' c..i i i ~tuff Tfle:::~e::: ~e:::~~i.url~ we:::r'e::: lrItr"uJuLc:::el lrl ~t::pi.t::H1ut::r, J..SSi Pr't::v L uu~ ly, f r'urrJ ]urlt::, J..::;oo, ~ht:: wti~ WI RN L rl t ht:: AelrrlL t tL flY ut::pc..ir trrrt:f1i:., u~ wu~ Crulckshank They never worked together on the same Sh1fts, but they would speak often dUrlng shift changeovers, when the one leav1ng tells the one arr1v1ng what happened on her shift When Walker worked the afternoon Sh1ft, Cru1ckshank usually came 1n to start her nlght Sh1ft before she left, and when Walker worked the day Sh1ft, she would often arrive early in the morn1ng before Cruickshank left She descr1bed Cru1ckshank as "very qU1et, very reserved, d1dn't offer much personal data about her Ilfe she d1d a lot to help people w1th the1r 1ncome tax and she talked a lot about that" Walker test1fied that secur1ty officers were frequently present 1n the Admitting Department "They would come and chat, depend1ng on how busy we were They had to be there whenever a pat lent comes " When asked lf she ever heard nurses and security staff engage in sexual banter Walker replied "yes, of course, that's the normal glve and take between the young people there" When asked for an example of such banter she told us about a young nurse she llked very much, who worked in Admittlng and whom people were teaslng because she dld not ~ave a date for a long t1me She sOld a guard had asked her "how come no one asks you out you have had no boy friend and no dates for a long time" "That's when Santos said he'd ask her out but his girl friend wouldn't like it I interjected how come no one asks me? And Santos said he would ask me if I was 20 years younger They all laughed It was all very respectful That happened during an evening when I was worklng ln Admittlng between 1988-91 " Walker descr1bed Santos as warm and friendly person, as one who would engage in "sexual banter1ng", which she described as "fr1endly exchanges llke I mentioned earller, and nothlng offenslVe " I -- I ,( 28 On the day and afternoon Sh1fts there were usually a few more people 1n the Admitt1ng area, usually two duty doctors, one of whom would usually be on the wards, two RN's; a soc1al worker and a clerk, wh1le on the n1ght Sh1fts there was Just the RN and the duty doctor, as well as a clerk for part of the Sh1ft from 11 30 pm to 2 am, and security would be there when needed Walker testifled that the duty doctor was ln Admitting only lf there are patients there to be seen, except on the Wednesdays when a certa1n doctor was on duty, "he never left the department, but stayed ln the lntervlew room all night" from 11 pm until 8 30 next mornlng She sald also that the Nlght Coordlnator (" would usually vlsit Admitt1ng about an hour after the night Sh1ft started and agaln about an hour before the Shlft ended "In the evenlng she stayed about 5 minutes, Just long enough to tell me who would rel1eve me on my break In the mornlng she stayed 10 or 15 mlnutes at most, to see how the n1ght went and have a coffee The only other time she would come to Adm1tting was 1n response to a call or when medlcatlon was needed ln a Unit Only the Coordlnator has the key for the medication room That would happen once or twice a month The Coordinator could arr1ve unexpectedly 1n Admltting at a Imost any time Nor could it always be predicted when the duty doctor mlght return from his rounds or his rest room" In cross examlnation Ms Walker described the sexual banter in WhlCh Santos ,~. was 1nvolved as "normal give and take between young people, not at all an ( uncommon experience among the staff", and as "good natured horseplay, practical Jokes, and harmless pranks, much the same kind as my own ch1ldren engage in" She saw the comments Santos had made to her and a young nurse as chivalrous and amusing, intended only to make them feel good She found hlm also physically affectionate "I remember we met in the hallway one day after we hadn't seen each other a long tlme and he gave me a very warm welcome and put hlS arm around my shoulder " Walker stated very clearly that she found nothing offensive in Santos's conduct, and that he was a reliable security offlcer { '---. '. 29 EVldence of Mlchele Wharton Ms Wharton testtfted on December 3, 1993, that she has worked as an RN at QSMHC for over six years, for about 2 or 3 years tn Admttttng, and on all rotattng shtfts She said she met Santos about 4 years ago when they both played baseball in the hospttal league, and that she is a personal frtend of Santos and hts fiance She soctaltzes wtth them after worktng hours about once every few months She testifted she was not made aware of the detatls uf the complaint by Santos or Crutckshank, that she is aware of only what she was told by the Investtgator When asked her opinton on the complatnt, Wharton qutckly responded "I belteve Santos was dealt wtth extremely harshly" In cross examtnatton Wharton testtfted that "Joktng around tS common among the staff at QSMHC", and that tt includes "sexual banter and tnnuendo" She explalned that "sometimes the new pattents do very strange things, 11ke taklng off thetr clothes and dtsplaytng themselves, WhlCh is embarrasslng to the staff You hear the occastonal Jokes They release the tensions and overcome the embarrassments " Wharton satd tt was not uncommon to hear jokes among the staff about going on dates and thtngs ltke that, and lt was not uncommon for Santos to be involved in the Joking, the sexual banter and tnnuendo She indtcated that she was surprised to hear Cruickshank make an unusual comment to her early one morntng, last summer, "when I walked tnto the offtce she sald to me, 'Oh, showtng off our cleavage today, are we?'" "She doesn't usually say anything Itke that" EVldence of Johanna Donnelly Ms Donnelly testifted December 3, 1993 She is an RN employed tn Out Pattent Department at QSMHC since January, 1991 She said "I don't remember actually seeing them", when asked about the Employer's policy directtves and publtcattons on sexual harassment Donnelly worked in the Admttttng Department June, 1988 to December, 1990, where she observed some sexual bantering and Joking between security offtcers and nurses She described one tnctdent whtch -- - --~ .( . 30 shocked and embarrassed her It happened tn Admttting when she was there wtth Santos and another nurse named Debbie, when another secunty ofhcer [she could not recall hts name] brought tn a gift-wrapped box whtch contained a Ilfe-l1ke clay f1gure of a pen1S She thought Debb1e was also shocked by 1t Donnelly satd she had worked w1th Santos for over two and a half years, often on the same sh1fts She described h1m as "n1ce, pleasant and outgo1ng" Donnelly could not remember ever working a Sh1ft w1th Cru1ckshank, but d1d have occaS1ons to talk w1th her about pat1ent information when she arr1ved at C' shift changeovers She descrtbed her as "a nice person" " EVldence of Ted Cyfko Ted Cyfko test1f1ed December 9, 1993 He 1S the n1ght supervIsor, a manager1al pos1ttOn, held sInce he joined the QSMHC as an RN 1n October 1969 He descr1bed his dut1es as be1ng mainly to assure a safe environment for patients and staff If he should find any staff person involved 1n improper conduct, tt 1S hts responsibility to document the matter and report tt to h1gher management He usually works four consecut1ve night Sh1fts [10 30pm to 8 30am] followed by four days off, and somet1mes he works extra shifts Every second weekend he works both Saturday and Sunday He 1S respons1ble for d01ng h1S rounds every n1ght, usually v1s1ting Adm1tt1ng about 11 30 pm, for 15 to 20 ('J' minutes, "to see how th1ngs are" and would return, if and when called, and agaIn routinely between 6 & 6 15 am "to see what happened in the ntght" The rounds take about two and a half hours He spends the rest of hIs shift in hIs off1ce d01ng his paper work and respond1ng to calls One of his dut1es is to arrange for RN staff1ng, 1nclud1ng relief for the1r one-hour breaks dur1ng the mght If a relief nurse 1S unavailable for Admitting, he would take over wh1le the RN is on her break, relY1ng on security to call him if a patient arr1ves at the door, or 1f he should otherwise be needed at AdmItting Asked about occaS1ons when a case book must be retrieved from another unIt, in situattons where a patient returns for assessment, Cyfko responded "there 1S f ',-- 'l 31 no occaSIon for the RN to go outside the unIt for the chart", ond If requIred, "I would do It for them, somebody has to be there all the tIme" [In cross examInatIon, he confIrmed "the RN does not have the responsIbIlIty to retrIeve case books It would be extremely unusual for an RN to go for a case book It's practIcally impossible, unless they don't tell me ] Asked If a securlty offlcer could be there In place of the nurse, Cyfko responded "If a patIent arrIves and we know them, securIty doesn't have to be there For security to be there, the nurse has to request It If the pollce are not there, a female RN wants somebody there from securIty" He testIfIed that as a rule security are not In the Admlttlng area when patlents are not there "SecurIty have to do their rounds They wouldn't SIt there hopelessly They mlght stop and talk when passIng through on thelr rounds" Cyfko dldn't see much socializIng other than "staff exchangIng greetIngs or comments about the weather or the1r work, sometlmes they ask quest10ns about patIents" He testIf1ed he had never heard Cru1ckshank and other staff persons in the Adm1tting area make jokes with sexual connotatlons He explalned that he never heard sexual banter among the staff because he is a manager and he expected their conversation would be different when he 1S there "It'S usually the case that staff would mod1fy their behaviour, in the presence of a manager" Cyfko testlf1ed that Crulckshank had never compla1ned to h1m about Santos's behavIour toward her He descrlbed her as a qUIet person who reveals Ilttle or noth1ng about herself personally "She only tells you what she wants you to know " In cross exam1nation, Cyfko testified that he had to go to Admitting for medicat10n on occaS1on, in emergencies He could arrlve there at any time, unexpectedly, when medicat10n is requlred by one of the wards, because he 1S "the only person on the night shift with access to the med1cat1on cupboard" Wh1Ch 1S located in the Admitt1ng area -_.~ -- - -~-_.- --_._--~-- ,t . 32 Also, tn cross examtnatIon, Cyfko agreed he "never found CruIckshank reluctant tn discusstng problems encountered on her shift" He conftrmed that "she was always prepared to share these problems" He agreed he would be surprIsed by lt "if she falled to ment\on a ser\ous problem she encountered with staff on her sht ft" Cyfko verifted that Cruickshank tS no longer asstgned to work in Admitting, at a doctor's request, after she refused to carry out his tnstructions "As an RN she has her own professtonal ethtcs She has the rtght to quest ton a doctor " He heard the doctor's reasons for his request, he satd, but CruIckshank "didn't gtve me her story regardtng the doctor's (~ complaint" Our impression ts that Cyfko's evidence charactertzes Cruickshank as a forthrtght and assertive person in her professIonal dealings wIth him, as one who would speak her mtnd, and not at all as a mlld, meek or submlsslve character Evidence of Robyn Hart Robyn Hart testIfied December 9, 1993 She worked at QSMHC since 1986, as a health attendant, on a part time contract, workIng up to 40 hours per week Since the summer, 1987 she replaced the nlght clerk Fatima Raza in Admltting, on her days off, for the Friday or Saturday night shift, and occasionally on Sundays She worked wlth Cruickshank for about two or three times each month (~ " on the same night ShIfts At the end of the shtft they would have breakfast together "once or tWIce a month", and on occaSIon Hart would give her a ride home She described their relationship as "frtends at work, but not outsIde work", and "talking with her as I would with any other worker" Hart saw Santos on occasions when she worked in AdmItting and she described several conversations between him and Cruickshank On one occasion when Cruickshank was readlng a magazine they started discussing sleepwear "I told her I prefer pajamas to lacy nightwear Santos, who was close by, asked Cruickshank what type of underwear she was wearing and she answered none of your bustness " She described Crutckshank's tone of voice as firm but not aggressive "Santos continued, saying what type of underwear he likes" She ( "- ~ 33 thought thts conversatton was tn "late sprtng of 1991" On another occaSlon Hart heard Crutckshank ask Santos if he had a gtrl friend He "responded 'yes, but we have an open relattonshtp', and she satd 'that doesn't show much respect for your girl friend' >> Hart descrtbed still another occasion when Santos descrlbed Crulckshank as not betng very creative and a boring type tn the bedroom "She seemed embarrassed and dldn't answer him Later, she sald to me he wasn't showlng much respect for her " i QUlck asked Hart if she ever heard Crulckshank say to Santos "I could charge you with sexual harassment" She answered yes and that he had replled "I know you can", In a Joklng way It dtdn't seem to Hart that she was Joklng Hart descrlbed one more conversation when Cruickshank told her that she would 11ke to get marrled and have chlldren Santos, who was there at the time, said she should let him father her chlldren Crulckshank asked why and his response was because they would have nice chlldren Hart descrlbed a conversatlon when she heard Santos ask Crulckshank lf she wanted to see somethlng he could show her She thought he meant hlS prlvate parts She sald she dld not tell Yetman, the Investigator, about thlS tncldent because she was embarrassed to dlscuss it wlth him Hart dld not say when thlS happened nor dld she describe any of the Clrcumstances Hart testifled she never heard Cruickshank make sexual comments to Santos, nor dld she ever see her encourage him to do so Hart recalled an occaslon In late spring, 1991, when driving Cruickshank home, she found her very qUlet She seemed upset "I asked her what was wrong She said something happened in Admittlng Cruickshank refused to tell Hart what had happened Hart saw Santos in the Admltting area more often than other securtty officers, l I I 34 sometlmes ln the company of other offlcers, and sometlmes when no pat tents were present Hart sald she always got along very well wlth Santos who "was always mannerly to me and very respectful, never made sexual comments to me " In cross examInation Hart said she dId not know why Santos's sexual Jokes and tnnuendoes were never directed at her "It may be he respects me and he understands I don't ltke them" She saId he Jokes wIth her, but never sexually Santos never made an effort to conceal from her his sexual banterlng wIth Cruickshank Hart saId she dId not regard hIS comments about an open r relatIonship with his girl friend to be proposals for a sexual relatIonshIp She agreed he was JokIng and teasing CruIckshank wIth comments like the one about her betng boring in the bedroom Hart agreed that Santos's comment about what she thought referred to hIS prIvate parts were also made in a JokIng manner She agreed also that Crulckshank's comment, that she could charge him wIth sexual harassment, could be perceIved to be made In a half-JokIng manner But to Hart it seemed serIOUS In cross examinatton Hart agreed that If she has a real problem, she speaks up and addresses it If Hart had seen Santos's behavIour as a problem she would have told him so She confIrmed that after observing the exchanges between Santos and CruIckshank she never told hIm anythIng like "I thInk this bothers her" or "I thInk you should stop" She never had cause to report Santos's ( conduct to her superVIsor or to hIS She satd she had learned from Albrecht about Crutckshank's complaInt In October, 1991 Prtor to that Cruickshank had dtscussed Santos's conduct wIth her They concluded they "were not sure If it amounted to sexual harassment" "When she asked me I saId why, because to me there was nothing phystcal, I could only see verbal comments" She dId not see hIS comments as harassing And Cruickshank had not told her Santos had done anything physIcal There was no re-examInation In response to questIons from the panel, Hart explalned that her observatIons of the interactIons between Santos and Crulckshank date from the summer of 1987, when she started work In AdmittIng She satd Santos and Cruickshank had a friendly relatIonshIp They got along l 'to 35 well except for some of hlS comments "She would tel~ me prlvately, not to him, that some comments he made were rude to her Only some were rude, not all She sald the frlendly atmosphere contlnued all the time she was there except for some sexual comments he would make some tlmes She never heard Crulckshank say anythlng to hlm about not llklng what he sald except for the time she told him he wasn't showing respect for her "But I could tell I sensed when she dldn't 11ke lt, even if she dldn't show lt " Evi.dence of Dr. Shelly Douma n1 Dr Shelly Doumanl, a physiclan speclallzlng ln psychlatry, testlfled December 10, 1993 She lS now practlclng at the Addlction Research Foundatlon and Mt Slnal Hospltal, as well as prlvately In the perlod December, 1987, to December, 1991 she worked at the QSMHC At the beglnnlng, she worked 5 or 6 Shlfts per week, wlth some week ends In the last two years she worked only 2 or 3 shifts per week, malnly the night shifts She testlfied that "Crulckshank was often there when I worked the night shifts--about half or more of my Shlfts were worked with her" Dr Doumanl descrlbed Crulckshank as "qulet, serlOUS, dld more listenlng than speaking I know nothlng about her prlvate 11 fe We would talk about cases We shared an lnterest In psychlatry " Dr Doumanl saw nurses and securlty staff engage ln sexual banterlng, WhlCh was not infrequent She described lt as run-of-the-mill lnnuendo "It was more eVldent durlng the days, when lots of staff were around Lot of staff had social relatlons with one another beyond the worklng hours They had a dlfferent relatlonship, joking about all kinds of things they saw ln magazines, or making comments about the sunshine glrl in the Sun, that kind of thing" She dld not regard the comments as lewd or offensive "I wasn't personally offended by them, but I can't say if others received it that way" She offered two explanations why she did not see Cruickshank participate in the sexual banter "flrst, she worked nights when the bantering day Shlft group was not around, and secondly, knowlng her as I do, I would be surprlsed lf she would engage in sexual banter, that kind of conversation" 36 Dr Doumanl saw Santos "fa1rly frequently, when I worked evenlng and nIght Shlfts" and descr1bed h1m as "outgo1ng, talkative, a Jok1ng type of person" She testif1ed that on one occaston [she could not recall lf 1t was 1n July or later, but surely before October, 1991J, Cru1ckshank conftded 1n her about some dtsturbtng comments "of a sexually provocatwe nature" Santos had made to her Cruickshank told her that she threatened to report htm but he had laughed about it "She hesitated to report him because he was engaged to be marrIed, or was married to a nurse, and she dtdn't want to cause problems to the relat10nship I told her to report 1t tf it conttnued or if she felt unsafe r She doesn't show her emotions readily but I felt she was afra1d and anxtOUS so I offered to stay up wIth her Santos was working that nlght I told her to feel free to call me if there were any problems Santos cam~ by on a number of occaSlons that night but soon left He usually stays to chat Cru1ckshank wondered 1f my presence was a deterrent He mtght have suspected she told me about l.t and therefore may not have found It comfortable to be there" Dr Doumani did not speak to anyone about the matter at Crul.ckshank's request, "but some months later Dr Logan phoned me because she spoke to him about tt" "The next ttme I heard anything more about tt was when Yetman called me for an tnterview " Evidence of Dr. Vance logan Dr Logan, a Toronto psychiatrist tn prwate practice, testifted December 10, ( 1993 Durl.ng hts residency at QSMHC, February, 1989, to August, 1992, he worked 3 to 6 afternoon or night Shlfts per month Some shifts were back-to- back, usually weekends He often worked the same shifts as Cru1ckshank and Santos, but never saw them engage in sexual joking or banter He said he did not get to know them very well because he didn't often have opportunities to chat on nlght shifts He descrtbed Cruickshank as pleasant and good at making the hospital a nice place to work He described Santos as a good security guard who tS much appreciated in emergencies "He has a much appreciated presence about him Because of the state of mind of the people who come to emergency, they are usually very agttated and Santos's presence is always he Ipful " Dr Logan expressed hts appreciatton that nurses and securtty l ----- -- 37 interacted In a way that made Queen Street a pleasant place to work The whole thlng worked well" Dr Logan testlfled on an Incldent he wltnessed when he entered the Admlttlng Department at about 11 30 pm, one nlght In the summer, 1991 " I walked In at the front part, where the glass partltlons are, and dldn't see anythlng strange untll I came around the door [1103J, the most westerly door where I entered Withln the sWlng path of the door, a foot or two wlthln the entrance, I saw Crulckshank on her hands and knees, crawllng away from Santos who was standlng over her She got up I walked by Santos Crulckshank sald, 'I'm glad you're here Don't go ' It seemed strange Somethlng odd about the whole thlng Crulckshank was flustered Santos stood by the door The two carrled on a brlef conversatlon I sat down and dldn't say anything then I heard hlm say she was clumsy and trlpped And she sald, 'You know that's not true I don t want to talk to you any more' " Dr Logan testIfied that Santos left after standing at the door a mlnute or two He sald that the room In WhlCh he found them was not vlslble through the glass partitlons from the outside corrldor In WhlCh he had approached them They could not have been seen from the outslde before he reached the door After Santos left Logan asked Cruickshank what had happened "She was ( reluctant to talk I pressed her She didn't say she had sllpped and fallen, but that he had grabbed her and In her struggle to get away she had fallen I don't remember her words I don't recall her saYlng anythlng about hlm klsslng or fondling her I wlsh I had taken the time to write down everythlng she told me because my memory does not serve me well" Dr Logan s'aid' It was hlS . impression that It was a sexual assault,but he dIdn't see it and couldn't recall her saYlng anythlng to that effect Dr Logan testlfled he could not remember any details about what she told hIm durIng the 15 mlnutes they had talked His general ImpreSSIon was that she told hIm about some epIsodes which had happened over a long perIod He saId he suggested to Crulckshank she should report the IncIdent to her superVIsor . -- . _. - , 38 "I asked If she had told anyone about prevIous episodes, and she said only Dr Shelley Doumanl I was very concerned about leaving her alone I knew at the time she would not report It that night I told her to page or phone me If she had a problem " Although he saw her frequently after that incIdent, they didn't discuss It again for a long time He recalled making himself available to her to talk about it, but she did not volunteer anythlng until he ralsed the matter a long time later "Her response surprised me She sald, 'what are you talking r~ about? Where are you coming from? You haven't seemed interested You haven't brought it up agaln ' That was true, I hadn't I had made myself avaIlable, but I hadn't brought It up " ~e did not discuss the matter again with Cruickshank until after he -had been contacted by Yetman, the Investigator "I called her She was very uncomfortable about telling me anything She was very suspicIous She acted lIke she wondered who's side am Ion, llke she couldn't conceive I was trying to help her She would allow me to ask her questions about the incident, which she would confirm or deny, but she would volunteer nothing I got no more information from her after our Initial . discussion the night it happened" Dr Logan testified he could not remember when the incident had happened, but thought It was the summer of 1991 He had phoned Dr Doumani about it the next C' day, but nothing had come of that discussion At Cruickshank's request, he told no one else In cross examinatIon, Dr logan confirmed, that CrUIckshank had always shown reluctance to dISCUSS the incident with him, even inItially when he had pressed her to tell him what had happened "She had f~ars that no one would believe her, including the nursing staff She thought they would not support her, that they would create too much difficulty for her" Dr Logan confirmed that he knew nothing about Cruickshank's complaint until he was approached by Ms Albrecht in October, 1991, when she showed him the written complaInt, outlined the incidents reported by Cruickshank, and { '- I I 39 lnformed hlm that he would be called by the Investlgator He sald he had spoken wlth Albrecht after she had met wlth Crulckshank about her complalnt She told hlm he would be called by Yetman and helped hlm refresh hlS memory of hlS dlScusslon wlth Cruickshank Albrecht provlded him wlth detalls of the complalnt He asked her lf lt was approprlate for him to call Crulckshank She said lt was When he contacted her, he found "she was not at all forthcomlng She would only conflrm what I sald she had told me " In cross examlnatlon, Dr Logan said he did not see Santos agaln that nlght, . after the lncldent, and he dld not see hlm make coffee or brlng a plzza to share with Crulckshank "I mlght have come back to see her, lf everythlng was ok, but I'm not sure" There was no re-examlnatlon The EVIdence of Kathy Merle CruIckshank Cruickshank testlfied on May 2, 4, 10, and 11, 1994 Her cross-examlnatlon was on May 10-11, followed by a brief re-examination which completed the May 11th hearing day Originally from Trlnidad, she qualified as an RN in England about 17 years ago, before she came to Canada in 1982, where she agaln quallfled as an RN She started work at St Mlchael's Hospital, Toronto, ln April, 1982, and later at QSMHC as a full-tlme RN in 1986 She changed to the part-tlme staff l ln 1988 because "I wanted moreflexibllity and there was lots of work avallable" She testified it was her preference to work the night Shlft [11 pm to 7 30 am] in the Admitting Department, where, since the summer, 1988, she worked a full-time schedule on a part-tlme status, replaclng a full-time nurse [Note cross ex~ninatlon below] Crulckshank testified that from the time she started worklng nlghts ln Admitting she worked with Santos most of the tlme, whenever he worked the same shift They got along reasonably well, ln a friendly manner "We had regular conversations that working colleagues have" Cruickshank testifled that before 1989 Santos dld not "make any comments or engage ln any actions of a sexual nature" towards her 40 Her flrst alleaatlon. She testlfled that she could not recall when, but she bel1eved it started one day 1n 1989 "with him pulling the top of my blouse and looking down the front part" "1 sald you're a pervert and 1 walked away" Asked what was her "tone", she answered, "louder than usual, ser1ous" When asked what was hlS reaction, she replied "he just walked away too" In response to the questton if others were present, she said there were, but she could not remember who they were There was nothing more in her eV1dence concern1ng the circumstances or context 1n Wh1Ch this alleged event had occurred ~. Her second alleaat1on. When asked tf there was anything else happened tn 1989, she answered, "he 1nvtted me to meet hlm in the physiotherapy room", WhlCh is on the second floor above Admitting, In the same bUl1dlng She could not remember "the exact month or date", only that It was "before my break at 4am" Asked what was her response, she answered, "1 sald no " Asked If she was serious or joklng, she answered "serious" When asked if she thought Santos's offer was serlOUS or joklng, her reply was "I think he was 'serious" She could not recall if anyone else was present at the time There was nothlng more in her eVldence about the circumstances or context of th1S alleged event Her third alleaation. Cruickshank said, in response to counsel's question, ( she could not recall any other incident in 1989 Ms Quick then asked if she could recall Santos making any comment about what k1nd of relat1onsh1p he wanted w1th -her The question helped her recall an incident when Santos told her he d1dn't want to marr.y her,he Just wanted to have fun She was uncerta1n when that comment was made, but thought it was some time before the end of 1989 She said she was sitting next to the filing cabinet, in her regular seat, dotng her paper work at the nurs1ng statton When asked what was her answer, she said, "1 didn't respond" When asked what was her reaction, she replied "I thought it was silly and stupid" In response to counsel's question "was he serious or joking?", she said, "1 think he was serIous" She said she did not tell anyone about this incident There was no additional evidence gIven regardIng the circumstances or the conversational context in WhICh the alleged comment was made l. 41 Her fourth alleaatlon. Counsel asked lf anythlng had occurred ln the basement when Santos was escorting her to flnd a patlent's flle Her reply was "Yes, ln February or March of 1990, I'm not sure the exact date I was worklng ln Admlttlng It had to be durlng the week, not on a weekend, because on weekends I am the only one there, and I wouldn't have left the Department for a file on a weekend" She sald Fattma Raza. the clerk. worked that nlaht Prlor to that incldent she had gone to the basement to flnd a flle not more than three or four times a year That partlcular nlght the doctor wanted the case book for a patlent After flndlng the case book number ln the computer she knew where to look for the flle She then called Security for an escort Santos came and they went to find the case book "He was very frlendly It was between one and two ln the mornlng We took the elevator near securlty to the basement and followed the corrtdor to el ther Um t 2 or Um t 4 " Her memory was not clear on the events and Clrcumstances She was not sure which unlt they had gone to, whether tt was to unlt 2 or 4 She dld recall, however, being escorted by Santos to search for a flle on a preVlOUS occasion, but she could not recall when or where that was, but she expressed confldence that lt had been to a dlfferent unlt and not the same unlt ln the basement She descrlbed the route they had taken on thlS more recent occaSlon, from the elevator near securlty to the basement, then through a corrldor WhlCh led to elther Unlt 2 or Unit 4 She was sure it was not to Untts 1 or 3 But she was uncertaln whether lt was to 2 or to 4 because, as she explolned, there was nothing in her mind "to stand out as marktng a difference between 2 or 4" Nor could she recall lf she had found the ftle She said they took the "regular route" back by the corridor to the elevator and the maln floor [Note cross examlnatlon below] On the way ,back, she sald he pushed her against a table in the hallway "He tried to kiss me and undo my blouse " "I remember struggllng a little while to get out of it and saying 'leave me alone, leave me alone' He flnally let go It was gOlng through my head, am I going to be raped" When asked how long lt took, she replled, "it seemed qUlte a whlle" 42 In response to the questIon, "What were your emotIons at the tIme?" she answered "ThIngs happened so very fast I can't recall what were my emotIons " After CrUIckshank had descrIbed this Incident, Employer's Counsel asked, "durIng the struggle dId he try to touch you on your body?", WhICh InVIted the follOWIng elaboratIon "he was trYIng to kISS me and undo my blouse, he was trYIng to fondle my breasts, all at the same tIme" Thus, to her inItIal descrIptIon of the Incident she added the words "he was trYIng to fondle my C ~~~)/ breasts, all at ~he same tIme" On theIr way back upstaIrs to the maIn corrIdor, returning by a dIfferent route, CrUIckshank saId she told him "If I report this you can lose your Job and he saId yes I know And he saId to me, something lIke 'you're so nervous' " AdmIttIng was busy when they got back The doctor and Fatima were there with two security staff "One was Steve and the other I can't remember Steve was looking at me strangely, more intensely than usual, WIthout saYIng anything " {We note here CrUIckshank's eVIdence on the presence of the night clerk, Fatima Raza Several Employer witnesses confIrmed that it is the duty of the night clerk to retneve pahent flles and that the mght nurse would go in C search of a patIent file only in exceptIonal circumstances, when both the night clerk and nurse coordInator are not avaIlable It should be noted also that Raza In her testimony gave no explanation why she had not gone in search of the file on thIS occasion rather than Cruickshank Nor dId CrUIckshank explain why she went for the fIle when it was Raza's duty to do so } When asked if she told anyone about the incident, CrUIckshank replIed "No, not at that time I felt uncomfortable Santos was a very popular person I didn't want to get involved with what was going on there He was popular WIth the females He has lots of friends there, male and female At Queen Street, you have to go along with the crowd or else you're alienated I planned to go away I had a flight booked to England for July 8th" l__ ._. 43 Her flfth alleaatlon. When Employer's counsel asked Crulckshank lf there was anythlng else before she went away ln July, 1990, she replled "I had asked him to help me wlth somethlng and he sald 'you're too tense, relax, you need to get lald' " In response to the question lf anyone was present when he made that comment, she sald "two Datlents and a doctor were there. Steve Kerr was standina close to Santos who was walking past Steve when he made the comment " Asked what was her reactton, she satd "I was upset It was not approprtate He dld what I asked hlm and it was hlS Job to do tt There was no need for the comment" When asked if she satd anythtng to htm about tt, she answered "No, I kept thtnktng about myself, am I that tense?" Cruickshank could not recall ; when this tnctdent had happened {Netther Kerr nor the doctor were called as wltnesses to corroborate thts allegatlon} Her stxth alleaatton. Employer's counsel then asked Crutckshank tf there was a dtscusston about soccer prlor to her departure in July, 1990 She satd, "Yes, tn June People on staff were talktng about soccer I was asktng tf anyone would tape the soccer for me He told me I didn't need pay TV He was rtght " Later, she told him she had picked up the games She testifled that "he asked if he could come home wtth me and sleep and we would watch soccer" When asked what was her reply, she said, "I said no " She was asked lf Santos was serlOUS or Joking when he asked this Her reply was, "I don't thtnk he was Joking I thlnk he was serious" She replled "no" when asked tf others were present Counsel asked Cruickshank tf there were any other inctdents before she went on leave tn July, 1990 She answered "not that I can recall" 011 her return tn September, 1990, she worked much more tn other wards than tn Admlttlng, untll about the end of December, when "one of the mght nurses had left" and she resumed her regular night shifts in Admitting "For a few months Santos made no comments of a sexual nature and we had normal conversations " Her seventh alleaatton. Counsel asked Cruickshank about the flrst tnctdent that happened after her return She repl ied "I went to the bed and stnk room for my rest He was already there lytng on the bed He got up and grabbed me around the waist I struggled .a little blt He let go and left qutckly " Crutckshank's testimony is that no one else was in Admttting, that there - "---- ~ - ---..-- -- --- ..~ 44 wasn't a relief nurse present, and that Cyfko had arranged to take calls dunng her break Asked lf Santos had said anythlng ln the lncldent, she replled she did not remember She was asked, "did you report the lncldent at the tlme?" She answered "no" When asked "why not?" she replled "Because he's a popular person He has many friends I dldn't want to be lnvolved I can't toke the talk, the gosslplng around the hospltal " The elahth alleaatlon was 0 similar lncldent WhlCh hod happened shortly after the seventh She sOld she was ln the some bedroom when Santos come ln "He f~"" tried to grab me, but he dldn't I ran out screamlng He called me a party pooper and left " {See cross examination regarding the bedroom lncidents } When asked lf she ever sald anythlng to hlm after that incident, she answered "I told hlm 'I will tell your flance If you don't stop' He sald 'my flance doesn't core what I do os long as I don't leave her--actually, she wouldn't mlnd watchlng' " Asked If she ever ralsed the subJect of sexual harassment wlth Santos, Cruickshank replied "Yes, ln March or April, 1991, I pointed out to hlm an artlcle on tt tn Tooical, or Tidbits or in OPSEU News Two other securlty staff were there They read the artlcle ln front of me " When asked tf her tone was sertous or joking, she answered "sertous" When asked about hts r t response, she satd she could not recall, but she thought "he dtd not toke tt seriously" When q~estioned about hts demeanor, she satd he was "his usual self" [See cross examlnation) Counsel asked Cruickshank if she hod asked Santos when he was getttng married She answered "yes, several times" When asked why, she answered, "I thought tf he got married he'd leave me alone" Employer's counsel asked Cruickshank tf, in the sprtng of 1991, she had said anything to Dr Doumani Union counsel outte orooerlv ob1ected to thlS as a leadino auestion whtch put in the wttness's mind 0 time which is dtfferent ~ 45 from the tlme of the conversatlon glven by Dr Doumam{ July or later}, In her eVldence The questlon and answer were wlthdrawn and Crulckshank was not agaln asked when her conversatlon wlth Dr. Doumanl had happened However, when she later came to descrlbe the lncldent of July 19-20th, {tenth alleaatlon} she was able to recall that "I spoke to Dr Doumanl less than two weeks before" {On several occaSlons Ms Quick was cautioned on leadlng thlS wltness } Crulckshank descrlbed her conversatlon wlth Dr Doumanl One nlght she was slttlng ln the nurslng statlon and Santos was slttlng at the computer When Dr Doumanl came ln, Santos got up and left She started telllng Dr Doumam ( about some incidents dating back to 1989 She told her about the tlme he sald "he dldn't want to marry me, and that more recently he sald he wanted to marry me, WhlCh made me thlnk he was gettlng desperate>> Dr Doumanl asked lf she had told anybody "Uo to thlS tlme I had not told anybody but her. but I dldn't tell her about the lncldent ln the basement >> Dr Doumanl asked who does she talk to about thlS "I sald maybe my head nurse or superVlsor " Whlle they were talklng Santos came and looked in and went out agaln Dr Doumam said Santos looked very susplcious When he came back once more, Dr Doumanl asked her when she was going on her break "I gave a tlme I knew was not correct >> After he left "I asked her why she would want to ask me that ln front of Santos and she explalned, 'I wanted you to glve hlm a wrong tlme so we can throw hlm off' >> After that, she sald, Dr Doumanl stayed wlth her all nlght, or as long as she could, on Saturdays "After that, I can't remember telllng her anythlng else >> Her ninth alleaatlon Counsel asked if there were any further lncldents after she spoke wlth Dr Doumam Crulckshank replled "Yes, Santos lnvlted me to meet him on hlS break and sald 'don't worry I'll be very gentle, you don't have to worry if you are tlred ' >> When asked what she had understood thlS to mean, she said, "my understandlng was he wanted physical contact with me >> In response to a further question, she said "My impression was he was senous, he wasn't joking>> She dld not describe the context or Clrcumstances in WhlCh these alleged remarks were made Cruickshank could not recall when thlS happened, except that lt was after the two incldents ln the bed and slnk room, and after her conversatlon with Dr Doumam I 46 [In cross-exam1nation she contrad1cted th1S, saY1ng it was before her conversat1on w1th Douman1 ] Her tenth alleaation. Counsel asked Cru1ckshank "do you recall any more 1ncldents wlth Santos after your d1Scuss1on with Dr Doumani?" She repl1ed yes, the Inci.dent of the maht of Julv 19-20th. 1991. When asked "how do you remember that date", she explalned that she had spoken to Dr Doumam less than two weeks before that nlght Dr Doumant only worked Saturdays and the Incldent was not on a Saturday "It was on a Frlday, the only day I'm alone In the Department " She descrlbed the events of that ni.ght In thlS manner (~ The Sh1ft beg1ns at 11 pm The evening staff left at 1105 Santos stayed on He was sitting at the computer desk readlng somethlng They talked as colleagues The conversat1on was qUlte appropr1ate until it came to a pOInt when he sald 'you're losing welght, your breasts are gettlng small' She 19nored h1m He contInued sittIng and reading h1S paper The nIght clerk was not there She never works on a Frlday nlght Cyfko, the night supervisor, had been there between 12 30 and 1 am Santos was there when Cyfko came and when he left, but not In between AfterCyfko left she was sitting at the night nurse's desk and Santos was a few feet away at the clerk's desk, where the computer 1S She went to open the 1103 door {south side, cllnical area} to go to the medlclne room He suddenly came behind her and arabbed her around the \^IQl st Hts shoulder was aga1nst the 1103 door The door handle was In her hand ( (' but she couldn't get out She contlnued to struggle to get away He held her t1ghter and tlghter He was behlnd her, leaning agalnst the door and holding her with both hands He was grabblng her blouse She was pushed agalnst the table to the left of the door She sOld 'let me go, let me go' When Employer's counsel asked Cruickshank what Santos said while she struggled she answered he commented on how her breasts felt in the basement incident When asked how long the struggle went on, she answered she dld not remember but It was "not as long as in the basement" It ended when "I suddenly tumbled over and fell on the floor" Asked "why did you tumble", she explained she was struggling to get away wlth all her force when he released her suddenly She sald she fell forward on the floor, hitting her head on the desk cha1r where she had sat on the north sIde of the room She dtdn't hurt herself ( ..-..........::: 47 Counsel asked what d1d Santos do She repl1ed 1n th1S way He stepped forward a few steps to help her up. He stepped back when she refused. Then he came again when she was almost on her feet. He extended his hand to help her When she was getting up she saw Dr Logan coming down the hall as he was entering room 1106 [the interview room] Everything happened so fast it was hard to remember exactly, but she is sure that she was in the process of getting up when she saw him. He went into 1106 She came out of 1103 [clinical staff area] and went into 1106 and asked him to stay in the Department a while. He said yes. She came out of 1106 and returned to 1103, and through the 1103 door She doesn't know where Santos was when she went to speak to Dr Logan. He was not in 1103 when she returned. Doctor Logan came out of the interview room into the clinical staff area and sat down .He asked, 'did he touch you?' and she said yes. 'Did he do it before?' he wanted to know, and she shrugged her shoulders. Dr Logan wasn't there very long, maybe five minutes, when Santos came back and said 'you tripped' She didn't ask him anything. Dr Logan didn't ask him. Santos stood for a brief moment at door 1103 and then sat at the computer chair Dr Logan didn't stay very fong. Before he left he wrote her a note which said 'call me if you are worried about anything' She didn't recall if he spoke to Santos before leaving. After the doctor left Santos asked her about running to the duty doctor, and she replied 'I'm not sure what I'm doing' She was too confused and mixed up when he asked. Santos came back several times because it was a busy night with patients coming in Later that night Santos came back with two security staff, talking about what had happened, asking 'why are you making so much fuss? I do it all the time to other people and they don't say anything' He mentioned Debbie,and said, " do it to Debbie all the time' She went quiet. She didn't say anything to him, but she asked herself if 'am I making a big fuss' That night Santos had to come back several times to Jet in police and patients. He brought her some pizza. Santos calTle to open the door when the police brought a.patient. She called Dr Logan to see the patient. Santos made coffee after the police had arrived. When she returned to the clinical staff area after the patient interview, she asked him why he was making coffee for a patient. He said 'the coffee is for you' Later that night, Dr Logan and she were together in the medication room. They talked again about the incident. He gave her advice. He told her to talk about it to Debbie McKeown. At the time she didn't want to talk about the incident any more. She left the medication room and told him she would talk another time. She was quiet. She didn't discuss the incident with anyone else. 48 Cruickshank testlfied she spoke to no one other than Dr Logan about the July incident except Vlta {the head nurse} "She asked me what I was gOlng to do about it I said I'll handle lt She asked how, and I said I'll find a way" Crulckshank told us "I wanted to handle 1t in a way to avoid creating a scene at Queen Street I didn't want to create anything at Queen Street, period !" ************************ Cruickshank's testimony is that after the July 19th incident she did not turn down any shifts at QSMHC, and she did not do so until after Santos was fired as the result of the investiaation of her comolaint. "after evervonefound C'"" out" Her 1991 attendance record {Exhib1t 12} shows she only worked two Shlfts per week, with few exceptions, in the per10d June through September She explains she worked fewer shifts not because she refused shifts, but because "at that tlme, before, during and after the 1ncident, fewer shifts were aval1able in other departments as well as Adm1tting" She sald also that she continued with her part-time .employment at another hospital She would normally call QSMHC a week in advance to arrange for work on the shifts and dates she had ava11able, but could not choose where she would be ass1gned Cruickshank's eV1dence 1S that she had no problems with Santos after the July 19th incident She could not recall how many shifts they worked together, perhaps not more than one or two She found some change in Santos It seemed to her "he was sensitive and feeling gu.ilty after a while" ( Cruickshank testified that she wrote her supervisor Vita Clarke-Adamson, Head Nurse, Central Admitt1ng, on October 9, 1991, at her request, the day after she had asked her to arrange with Santos's supervisor "not to schedule us at the same time" She believed that was the solution to her problem Her letter, dated October 9, 1991, [Exhibit 8J stated "I want to ask you please not to schedule me to work in Central Admitting at nights when Mr Santos the Security staff is on duty "He has been sexually harassing me both verbally and physically and has attempted to use physical force in the process. I haven't made this request before because I thought I could handle it on my own. Lately however it has been causing me a great deal of distress, and I'm becoming very nervous when working on my own in your department. "I would like you to handle this with the minimal amount of scandal, as I do not think I can cope with one." C, 49 Crulckshank explalned what she meant by her word "dlstress" ln thls letter "I was aettlna fed uo wlth gettlng away from hIm, llke lnCldents In the bed and sInk room, struggling out of sltuatIons, the actual InCldent on July 19th, and haVIng to lie to hlm about my break tImes" Cruickshank's testImony is that prIor to wrIting the letter she had not turned down any Shlfts When asked lf there were any perlods she dId not work because of Santos, she replIed, "Yes, the mornlng after I spoke to Sue Ellen [In the Personnel Department], around the week of October 21, 22, or 23, when I found out that Santos was suspended" She was distressed by his suspenslon "ThIngs were circulating among the staff I dIdn't feel comfortable going to work I called In SIck one night and VIta cancelled the other two ShIfts that week There was a perlod after that I dIdn't want to go to work I dldn't want to go through the front door and I asked Vlta to plck up my cheque for me " Crulckshank testIfled she went wlth Vlta to see Albrecht a few days after she had written her letter "She [Albrecht] went through the letter with me and said she had to give it to Santos's supervisor She said he has been harassing a lot of female staff I didn't give her any details about the incidents and she didn't ask for any explanations. J didn't tell her about the July incident because I was hoping the shift schedules could be arranged Albrecht informed me about the sexual harassment policy and advised me to see one of the Sexual Harassment Advisors on the list she gave me." Soon after that meetIng, Crulckshank met with both Albrecht and Santos's manager, Robert Frost CruIckshank's testimony 1S that she went to meet Frost still hoping the work schedules could be adjusted, but he showed no lnterest 1n that "He wanted deta1ls and reasons about my letter First, I told hlm about the July 19th inc1dent He wanted to know if there were others and I had to menhon the incident 'in the basement He became furious and he sald, 'Thls is assault He can get 6 years for this ' He banged hlS fist on the desk and sald, 'OK, he's fired ' " {We note that Mr Coleman obJected to Ms Quick leadlng the witness on what was discussed at her meetlng WIth Frost} QUIte clearly, that was not what Cruickshank wanted She wanted only to have thelr shifts separated because she was aettlna fed uo with gettIng away from him" and the kind of inCIdents she had described 50 Crulckshank testlfled that not long after the meeting wlth Santos's manager, she was called at home by Sue Ellen, Personnel, for a meetlng "That's when she said, 'by the way, he was suspended thlS mornlng' That's when she started to make me feel gUl1ty She sald, 'you may have to leave your job, lf there's anythlng ln the closet lt will have to come out' I asked, '15 there any way for Santos to keep hts Job while the lnvesttgatton goes on?' She answered no I couldn't ask for explanatlons I was too upset at the tlme I was tn tears " Crutckshank testtfted she went to see Mira Bazzul, a counsellor on the list r she was given, who explalned the sexual harassment POllCY and her optlons On - Mtra Bazzul's advtce she went to see an Employee Counsellor In November she was called by a Unlon Representatlve, appointed to represent her, whom she met only once, a few days after the call The Union Representattve told her the case was unlque, the flrst sexual harassment complalnt at QSMHC, and that "nobody ln management is sure about what they should do with tt" "She advlsed me I can do one of two things pursue the complalnt through the formal route or settle it informally" The Union Representative recommended a voluntary settlement "but she could not guarantee me that I wouldn't have to work with htm ln the future" Cruickshank agonized over her alternattves She discussed tt wtth "some people not related to Queen Street" and found "no one wanted to make the deCtSl0n for me" She then called Albrecht and told her "I dectded to accept an apology and ( four days loss of pay" Crulckshank sald Albrecht told her "If that's what you want that will be consldered, bu~ we can't accept that" Cruickshank testlfied a Union-Management meetlng to deal wlth the complalnt had been arranged for November 11th or 12th "On the morntng of the meettng I got a call the meetlng was cancelled I knew nothlngmore Nobody was talking to me " She said she felt frustrated by it all and that she "had to do somethtng to get thlS thing over and done wlth " Feeling thwarted by management's apparent failure to support her wishes to. resolve the matter quickly, Crulckshank called Mira Bazzul, the harassment counsellor, who advised her to file a formal complatnt She signed the "Complaint Form" 25th November. 1991 [Exhibit 16J I , '-- 51 CruIckshank testIfIed that neIther before nor after Wr\tlng her October 9th letter had she dlscussed the matter wIth Santos She met wIth the Investlgator three tlmes She was lnformed of the results by mall some tlme ln Aprll, 1992 "I understand the result was that Santos lost his job" She told us that as a consequence of thIS, "nobody would talk to me at the hospItal When I walked Into a room everybody stopped talking The staff on the other floors were very cold to me If I had to do It agaIn, I would not There's too much anxIety, too many problems, and too many people Involved" At the conclusion of CruIckshank's examInatlon-ln-chief she was asked lf she ever did anythIng to Invite Santos's sexual cOlm1ents She answered "no" To the questIon "How would It affect you If Santos returned to the work place?" she replied, "I am not sure" She was then asked a slmllar questlon "How would It affect your work enVIronment If he returned?" Before answerIng the questIon dIrectly she told us that she knows what most people at Queen Street think about thIS case Then, returnIng to the questIon she saId "provIded he doesn't work wIth me on the same ShIfts and I don't work wIth him, it should be OK" ************* It should be noted that the examInatIon-in-chief of Ms Cruickshank, as well as several prIor witnesses, was marked by many objectIons from Mr Coleman on leadIng questIons by Ms QUIck We frequently cautIoned her not to lead her witnesses, in that her questIons Improperly contaIned the desIred answers or suggested or implIed the responses she was lookIng for ThIS deleteriously affects the quality of the eVIdence Throughout the proceedings, we were asked to resolve several objections from Union counsel on Issues of hearsay and relevance On each occasion, the vice- chair ruled he will gIve Employer's counsel a wIde latitude in consideratIon of the nature of the case, on evidence she wishes to adduce, subJect to our later determInations as to relevance and weIght However, the vIce-chaIr urged her to take some care not to waste valuable hearIng tIme presentIng evidence 52 Wh1Ch she should be in a pos1t1on to know would have no relevance to the 1ssues in th1S case Counsel were rem1nded that the responsibl1ty res1des w1th them on how they conduct the1r respect we cases Ultimately counsel are respons1ble and accountable for the quality of the evidence they choose to present The v1ce-cha1r cautioned counsel that hearsay eV1dence carr1es very 11ttle if any weight and 1S not the cogent and convinc1ng evidence required 1n this dism1ssal case We note also that on several prior occaSlons and again at the conclusion of (1 Ms Cruickshank's examination-1n-chief, Mr Coleman brought our attent10n to h1S problems in obta1ning from the Employer the documents he needed for the proper preparat10n of the defence Th1S delayed the commencement of the cross- examinat10n He pointed out that some documents were rece1ved only after cons1derable delay Certain documents he requested 1n December, 1993, were not rece1ved unt11 May 2, 1994 He was told recently that some documents he wanted had been destroyed However, there remained certain documents Wh1Ch he needed to cross-exam1ne the complainant, and Wh1Ch he had not yet rece1ved Ms QU1ck argued that certa1n documents concern1ng the complainant had the right to be protected by her right to privacy The vice-chair pointed out that the right to pr1vacy must be weighed against the grievor's r1ght to a fa1r and proper defence He ruled that the Employer should make ava11able to Mr Coleman for C h1S examination all documents relevant to the issues on WhlCh this Board must dec1de and which are legitimately required for his defence, w1th appropriate safegurds for the pr1vacy of pat1ents and others, as required It was made clear this did not permit a wide-ranging flshing expedition The vice-chalr repeatedly urged counsel to make their best efforts to resolve such problems as the productlon of documents, as much as posslble, on their own, ln order to conserve valuable hear1ng time, 1n the best interests of all concerned The vice-chair said he relied on their good will and cooperation as well their exper1ence for resolving such eV1dentiary issues The cross-exam1nation was delayed to permit Mr Coleman to examine certain documents now provided by the Employer l_ 53 The Cross-examlnatlon of Crui.ckshank Cruickshank had testIfIed earll~r that whIle on part-tIme status that she started working full-tIme in nIght-shifts In Admitting In the summer of 1988 When asked, "could It In fact have been In May, 1989?", her reply was "no, definItely not" She was then shown her performance appraIsal dated November 26, 1989, wh\ch she had signed, and wh\ch stated "She has been work\ng nlghts in the Assessment/Admitting Department Forty hours per week from May 1989 " [Exhi bl t 19J She explained "that's when I took over from the nurse workIng In that position, but I was workIng 40 hours per week in AdmItting before she left the posItIon" We fInd that Cruickshank's testimonv on th\s auestion \5 contrad\cted bv her 1988 and 1989 Staff Attendance Records rExhiblts 21 & 221. WhlCh were not orovided bv the Emoloyer and not received in evidence until after the cross examinatlon was comoleted Her Attendance Records confirm the evidence in the performance appraIsal [Exhibit 19J that she started working the 40-hour week in Adm\tting \n the last week of May, 1989, and not in 1988 as Crulckshank had testified and insisted In cros~ examination Cruickshank conflrmed she had told the Investigator the basement Incldent [the fourth alleaation1 had happened In UnIt 4 Subsequently, after she learned that Santos's testimony w\ll be that the only time he had escorted her for a f\le retrieval was to Unit 2, she became uncertain about Un\t 4 She chanced her testImOny to state the incIdent may have happened in the basement of UnIt 2 She explained that this doubt first came to her mind when the InvestIgator asked her if she was sure it was Unit 4 She could not say that she told hIm about her uncertainty "I probably told him it was Unit 4" Also, in cross examination Cruickshank contradicted herself on how many tImes she had been to Unit 2 basement with Santos Her evidence in chief was that she had gone to the basement for files three or four times a year and that Santos had escorted to the basement on one previous occasion She could not - - -"- - - .~ - - 54 recall when or where the flle retrlevals had taken place but she was confldent those two escorts had not been to the same unlt She conflrmed ln cross- examination that she had been in the tunnels on only three occaSlons, that the flrst time was wlth Santos, and that she had never been to Unit 2-basement prIor to the lncident She then contradicted thlS to say she had been to the basement wIth hIm on a prior occasion Further, she confirmed also that she could not have gone to Unit 2 with Santos on both occaSlons and then she chanaed her mlnd, saYIng she now believed Santos had escorted her to the basement on two occaSlons, and both to the Unit 2 basement She was certaln lt r was not to Unlts 1 or 3 because different tunnels run to those basements On furtber questioning, Cruickshank expressed confidence Santos had escorted her on a prevlous occaSlon to Unlt 2, but she could not remember when or where It may have been to the flrst floor She conflrmed she did not tell the Investlaator that Santos had escorted her on more than one occaSlon for a flle retrleval. She could not recall if she had been escorted by other securIty offIcers on the other occasions Cruickshank was told that Santos wlll testify he had never been to Unlt 4 basement with her, and she was asked if she now agrees wIth that She replIed that she neither agrees nor disagrees wIth him on that, and thpt she could not C agree because "I am not sure" She protested that she had no need to keep notes on, or to remember when, where, and with whom, she would have gone to retrIe~e a file durIng that night, even though It was an infrequent and unusual event CruIckshank was confused about the CIrcumstances It was so long ago, she said, that it was difficult to remember exactly what happened, where or when Another reason why she could not remember much about her fourth alleaatlon "I had no intention of reporting it at the time There was no reason for me to remember If it was In 2 or in 4" On further questioning Cruickshank recalled tellIng the Investigator about Santos givIng her a lift to Unit 2, first floor, on a mechanIcal caddy, ( ~ > 55 but she could not recall whether that was for a fl1e retrleva1 escort, nor could she remember when lt happened "I don't remember anythlng more about that lnCldent I have no reason to remember " Crulckshank confirmed she was able to continue working through a busy nlght, wlth a lot of people around, as if nothing had happened, notwlthstandlng her fear she mlght have been raped durlng the basement lncldent Also, she sald she dld not report the lncldent to anyone at that time, and that she contlnued to work full tlme in Admlttlng up to July, 1990 {Exhiblt 12} Crulckshank sald that other staff persons were present during the flrst alleaatlon [blouse] but she could not recall who they were or when It had happened She sald others were not present durlng the second a1leaation, and she dldn't know untl1 recently that securlty staff do not have the keys to physlotherapy Now that she knows that neither he nor she had access to the physiotherapy room, she stlll believes he was serlOUS, not Joking They were alone during the third al1eaation, she said She agreed "he was ~oking about not wantlng to marry me, but not about havlng fun" She thought thlS comment was "stupld" and "sllly" During the flfth alleaation, she said, other staff were present and close enough to hear hlm say 'you're too tense, relax, you need to get laid' She dld not feel his remarks were lnsubordlnate, but lt caused her to ask herself "am I that tense ln my work?" Regardlng the slxth alleaatlon, she agreed she had inltlated the dlScusslons about taplng the soccer matches, and that Santos could have been among those she had asked to tape the world cup soccer She could not recall having a dlScusslon wlth Santos about taping a particular game, but she recalled she "slmp1y went around asking several indivldua1s about taplng all of the games, at thelr homes, not mine" She denled asklng him to come to her place and watch a game wlth her Concernlng the lncidents in the bedroom, Cruickshank's rest area ln the Admitting Department rseventh and elahth al1eaationsl, the cross-examlnation disclosed some slgnlflcant dlfferences between the Clrcumstances which she 1- .- . ~ - - - _._._--- - -..---- -- --- ----- - - - , -. - - - ---- - - _.-------- I S6 descrIbed to the Investigator and those glven in her eVIdence In chIef She conflrmed that she had not told Yetman that Santos had grabbed her or tried to do so In either of the two bedroom Incidents Her evidence in chief was that he dld grab her In her seventh allegation and had tried to grab her In her eiahth alleaatlon. She conflrmed in-cross examlnation what she had sald In chief, that no rellef nurse was present at the time of elther of the two IncIdents, and she denied telling Yetman a relIef nurse was there Then, on further questlonlng, she contradlcted her earller evidence. She admltted she had told Yetman a relief nurse was there when she found Santos lYlng on the ..- f bed rseventh alleaatlonl She then attempted to clarlfy the confuslon by telllng us about a thud bedroom incldent when she believed a relief nurse mlght have been present She conflrmed that she had not reported such a thIrd bedroom Incident to the Investigator nor 1n her eVldence to the Board She agreed she had told the Investlgator that in one of the Incldents, when she came to the door it was open, and that when she looked in and told Santos "I'm not coming in until you leave", he dld She dld not tell the Investlgator that Santos had grabbed her or trled to do so in that incident Nor did she do so regarding the other incldent Previously, she told both the Investigator and the Board about only one incident where Santos was already lY1ng on the bed when she arrived and she asked hIm to leave and he dld In cross examlnatlon she said there were two such incidents, and that he had made no attempt to touch her in either one of them ( She confirmed she told Yetman that there was only one tlme she had found him lying there, and that it was in the second bedroom incldent, but she had told us that happened in the first bedroom incident Cruickshank conflnmed also that she dId not tell the Investlgator that Santos had tried to grab her in elther of those incidents She agreed that according to the Investlgator's notes the only incident where Santos was already in the room was the only tlme she found hlm already lYlng on the bed, but expressed her doubts regarding the accuracy of those notes The cross-examinatlon establlshed, however, that her evidence in chief regarding the bedroom Incidents differs signlficantly from what she told the Investigator ( '- ~ 57 When she was shown the Investlgator's notes and became aware of the contradlctlons In her statements, Crulckshank appeared vISlbly shaken and upset She complained she had dlfflculty concentratlng When asked lf she found the cross examlnatlon to be uncomfortable she replled, "I'm uncomfortable wlth the whole Investlgatlon, from the beginnlng " Crulckshank could not recall Robvn Hart's oresence durlna any of her conversatlons with Santos. She could not remember havlna anv conversatlons wlth Hart reaardlna Santos. When asked to comment on certain conversatlons which Hart had described ln her testimony, Crulckshank sald she does not thlnk Hart was present at the same conversations on which she had reported to us and that the conversatlons described by Hart may have been dlfferent sltuatlons "There were so many sltuatlons, It's hard to put them together" When asked lf she had any reason to doubt Hart's eVldence, she could only say "I can't remember If Hart was there" She could not recall the conversatlons reported by Hart, for example, the one about her asking Santos If he had a glrl friend "At that tIme I already knew he had a girl frlend, so I wouldn't have asked" Crulckshank could not recall if Hart was present when she gave Santos nnd other security staff an artlcle in TOPICAL or in OPSEU NEWS to read on sexual harassment She conflrmed that was the onlv conversatlon she ever had wlth Santos on sexual harassment. To help her Identify the artlcle Crulckshank was shown Exhiblt 2 She said it was definitely not the artlcles at Tab 9 and Tab 17 She sald ttmlght be the artlcle at Tab 16, entitled "THE SEXUAL HARASSMENT OF WOMEN" in the Newsletter of OPSEU Local 531 dated July 16, 1992 She recalled the slmilarlty of "two pages folded over" [Thls suaaests that thls event mlaht not have haooened before Santos's susoension.) In cross examinatlon, Cruickshank contradicted her oreVlOUS evidence, saYlng she now belteves the ninth alleaatlon happened before she had spoken to Dr Doumanl about her problems with Santos She sald she had made her best efforts to tell the Investtgator about all the inctdents, but she could not recall telltng him about the ninth alleaation She was conftdent, however, that the second alleaation was not the same as the ninth alleaatlon After revlewlng , 58 the Investlgator's notes Crulckshank conflrmed that she had not told hlm about the nlnth alleaatlon Crulckshank sald there were more conversahons wlth Dr Doumanl about Santos than the one she described in her evidence in chlef She acknowledged she had told her only about some of Santos's sexual comments and dld not tell her he had done anythlng physlcal When told Dr Doumanl had testlfled that she could remember only one ~uch conversahon, she dlsagreed, saYlng they talked every ~ Saturday night when they worked the same Shlfts The first conversation r ' , " started one night, while she was sittlng in Admitting wlth Santos, when Doumamarn ved and Santos left She sald she told Doumanl about the lncldent where she went to the room for a rest and he was already there "I dldn't go lnto detalls wlth her" Cruickshank sald that on a separate occaSlon she told Doumanl about Santos saYlng he wanted to marry her, that he's getting desperate She could not remember lf Santos'was on Shlft that night "It wasn't a busy night and he wouldn't be cOlmng around I can't remember seelng hlm that mght " Questloned on the tenth alleaation, Crulckshank could not recall the dlScusslon she had with Santos before he "grabbed me from be~lnd" She could not recall any Joking banter between them before the incldent She demed that ln the course of joklng wlth hlm she had sald "you're all talk" When asked (' lf ln the course of Joklng she told him that lf she came after hlm he would run away, her reply was "I don't joke llke that He knows that " She demed also that he had asked "are you sure I'm all talk?" "That's a lle, it's false" On further questlonlng, Crulckshank explained that whlle she was pulling away he released her and she stumbled 2 or 3 times, no more, she was on her feet but unsteady, and she did not see Dr Loganuntll she was off the floor rlslng to a standing position Asked if she thought he had seen the whole incident, she answered that he told her later that he had not seen anything, and "I didn't have tlme to thlnk what Dr Logan was thlnking" Crulckshank agreed it was an embarrassing situation to have been seen by Dr Logan ln that sltuatlon, that it would be unprofessional for anyone to be seen { , '- . 59 on the floor "But," she sOld, "that was the least of my concerns at the tlme, havtng felt stressed from betng grabbed from behtnd and falltng down" Crutckshank conftrmed that she understood Santos thought she had complalned to the doctor, that he was surpnsed by tt, and wanted to know why she went to hlm She agreed her response to Santos was, "I'm not sure what I'm dOlng", or "words to that effect" She agreed that she descrlbed herself as quiet, mlxed up and confused, at the time, and also "shaken up" by the events Counsel asked Crutckshank to demonstrate at the door how Santos grabbed and held her Ms Quick volunteered to play the role of the vtcttm, standlng wlth her back to Crutckshank, her hand on the door knob, whl1e Crulckshank, ln the role of Santos, with her rlght shoulder pressed against the door, placed her hands on Ms Quick's walst Her hands later moved to Ms QUlck's chest In response to Mr O'Toole's questlon .Crulckshank conftrmed that her hands touched Ms Quick's breasts The demonstratton happened so qUlckly that we dld not see clearly how or when her hands had moved to the breasts We each have dlfferent views of the demonstration, but lt appears to the chalr that the hands touched the breasts lnadvertently In the struggle to get away {Seymour's view of the demonstration is that Santos's arms were around her waist, with his hands touching her shoulders, and DQ!.her breasts. O'Toole may have a different view which he has not specified, and which may be revealed in his dissent.} The demonstratlon dlffered slgnlficantly from what the wltness descrlbed ln examtnation, when, in her unasslsted description of the lncident, she had sald nothlng about Santos touching or trying to fondle her breasts She said nothlng about htm touchlng her breasts In that respect, the demonstratlon was not consistent wlth her prior description of the event When Cruickshank was asked about dlfferences between her eVldence and her statement to the Investigator regarding the July 19th incldent she explalned "there's lots about that night I don't remember" "Whether or not I was stlll on the floor when I flrst saw Dr Logan come in could be one of the details I do not remember" She confirmed she dld not tell the Investigator what she had told us about Santos saying 'he dld it to Debbie all the time', but said Santos is wrong in denying he had said it to her ~ . 60 Crulckshank lnslsted, however, that what she had told Yetman was no dlfferent than what she had told us, regarding the events WhlCh followed Dr Logan's appearance She told us that Yetman's notes are not rellable Cruickshank conftrmed she had decided to no longer work in Admttting in the summer of 1993, followlng a disagreement she experienced with Dr Harn son, 1 n WhlCh she refused to accept his order to put a pat lent tn mechantcal restralnts, in Clrcumstances where she belleved lt to be professlonally inappropriate Ms Quick obJected to thlS evtdence on grounds of tts - questloned relevance It was admitted on the Unton's submtsslon that the f eVldence is relevant to the assessment of the complalnant's character, on her capabllity to comnuntcate to the gnevor her Judgments on the appropriateness of hlS behaviour, as well as to the question of the delay in the complalnt ***************************** At one point, Mr Seymour interrupted the cross-examtnatton to. express hlS concerns that Ms Quick and her advtser, through much of the day, had been prompting the wltness when she was glving evidence, in the form of sending her faclal body messages, such as approving nods and smiles **************************** Crulckshank's Re...;.examination In her re-examtnatlon Cruickshank confirmed again that she had no recollectton ( of any dtscussion wlth Hart on the subJect of sexual harassment When questioned regardlng her dlspute wlth Dr Harrison, she sald that he started to work at QSMHC towards the end of the tnvesttgation of her complaint and he soon became "buddy buddy" wlth the security officers, tncluding Santos She said she had seen him in conversattons with them She believed tharthey sociallzed both on and off duty When asked why she decided to work elsewhere, she said tt was because she felt that Dr Harrison had became resentful and hostile toward her "once he got to know the ropes", and he no longer treated her in the appropriate professional manner At the close, Crulckshank told us she would not advise anyone "to go through thlS again, this is a matter of survlval, not a matter of truth" l_ ~- 61 The EVl dence of Dr. El a 1 ne F. M. BOrlnS Dr Bor1ns, ass1stant cl1n1cal professor of psych1atry, Un1verStty of Toronto, and stnce 1979, sent or staff psychiatrist and dtrector of "The Women's CltnIc" at the Toronto Hosp1tal, test1f1ed as an expert witness on May 17, 1994 Dr Bor1ns completed her res1dency tra1ning in psychlatry at the Universtty of Toronto 1n 1977 In her subsequent prtvate practice, hosp1tal appo1ntments, consult1ng, educattonal and research act1v1t1es, she speCtal1zed 1n women's health 1ssues, focus1ng on the dtagnosls and treatment of women who have experienced traumatic events, such as sexual abuse and sexual harassment She commenced a research study 1n 1993 on the health consequences of traumattc expertences 1n the workplace Dr Bor1ns rev1ewed and conf1rmed her currIculum vitae [Exhibit 18J establ1sh1ng her credenttals as an expert wttness Unton counsel accepted her qualifications as an expert wltness for the purpose of these proceedtngs It must be noted that the expert evidence of Dr Borins 1S based upon her psychlatrtC knowledge of the professtonal 11terature, and her research and cllnical exper1ence, ch1efly her expert knowledge on the d1agnOsts and treatment of women who suffer traumat1c sexual experiences She clalms no partIcular knowledge of Cruickshank or Santos, and she 1S hot an expert wltness 1n assesstng their credibility, the truth or accuracy of thetr recollect1ons of events The w1tness's expert psych1atr1c knowledge about perpetrators and v1ct1ms generally is not directly relevant to the determ1nat1on of our parttcular questions of cred1bility in fact-f1nding, whether the compla1nant is in fact a vlct1m and whether the grievor is in fact the perpetrator The psych1atrist's central duty is to cure, treat, and heal the v1ctims, not to judge the truth of their claims The witness informs us that the healing process may be hurt rather than helped by efforts to Judge the patient's claims, and that the theraptst's support and trust in the victims of sexual harassment are essential to the therapeutic process It is not a central profess1onal concern for a psychiatrist to determine whether an alleged vict1m's accusattons are _. 62 true or false, as 1t 1S for an arbitrator who must Judge the truthfulness of the accusatIons by putt1ng them to the tests of proof For a Judge or arbItrator, unlIke a psychIatrIst, the accuser IS not a VIctIm and the accused 1S not a perpetrator, not untIl they are proven to be The psychiatrIC eVIdence WhICh we heard is about victIms and perpetrators of sexual harassment generally, but whether CrUIckshank IS a VIctIm and Santos a perpetrator rematn to be proven Dr Borins testtfted there IS very little SCIentIfic knowledge avatlable on r , the subJect of sexual harassment which has attracted attentton by a few recent widely publIcized cases, such as the July, 1991, Time magazine article on an Intervtew w1th Dr Frances Conley, and by the televtsed test1mony of Anita HIll at the US Senate hearIngs In October, 1991 She referred us to a reV1ew artIcle {on published research and review papers from psychIatry and psychology journals}, tn the January, 1994, Issue of the knerIcan Journal of PsychIatry, entttled "An Overview of Sexual Harassment" [ExhibIt 20J The article reviews the topic "WIth particular attention to demographIC InformatIon, psychosocial consequences, appropriate therapeutic Interventions, and related psychologIcal issues" Those Issues are not directly related to the credIbIlIty Issues which we must deCIde r ( Dr BorIns acknowledged the Journal article lacks analytical depth The artIcle Itself observes that many of the studIes It reviews are defICIent tn scientIfic methods and relIable data Nevertheless, It is a very Interesting and helpful article, enhancIna our awareness and understandIna of harassina behaviour. of the osvcholoaical differences in oerceotions of sexual harassment. oarticularlv the differences in oerceot\on between aenders. and between VIctim and oeroetrator Dr Borins commented on many of the issues In the artIcle which descrIbes sexual harassment as "distinct from flirtation, flattery, requests for a date, and other acceptable behaviour occurring in the workplace or the classroom, it lacks the elements of choice and mutuality inherent in a normal relationship Even if the victim is a woman and the perpetrator a man, harassment may be motivated by other issues, such as race, religion, and politics In addition, sexual harassment is distinct from rape It is a type of sexual coercion that relies ~ - I · 63 on the power of the perpetrator to affect the victim's economic or academic status and does not necessarily involve physical force >> The artlcle notes that several authors have attempted to construct a hIerarchy of posslble behavlours, ratlng them mtld, moderate or severe "Remarks of a sexual nature, repeated requests for a date, whi.stles, and staring can be mild forms of harassment Sexual propositions not di rectly 1 inked to employment and unwanted physical contact of a nonsexual nature are rated intermediate in the hierarchy Last, sexual propositions linked to a job enhancement or a job threat, unwanted physical contact of a sexual nature, and sexual assault constitute the most severe forms >> The artlcle notes also that perceptlons of sexual harassment vary qreatly "Perceptions are socially constructed, differing not only according to the characteristics of the perceiver but also according to those of the context and the participants involved The question we address in this section i. s, What determines whether an action is seen as offensive? Several studies required subjects to evaluate hypothetical scenari.os i.nvolvi.ng workplace or classroom interacti. ons The resul ts revealed that si. tuati.onal factors are the most influential i.n determining the way a behaviour is perceived Among situational considerations, the severity of the conduct is the single most important variable Another major factor is the di fference in power between the perpetrator and the victim >> {EMPHASIS IS OURS} "Indi. vidual characteristics of the percei ver al so predi ct whether an achon is seen as offensive The individual variable that seems to have the greatest influence on perception is gender Both sexes agree that quid pro quo si tuations, unwanted physical contact, and behaviqr perpetrated by a person wi th di rect authority over the victini constitute sexual harassment However, there is disagreement about behavior that is less severe and the behavior of a person without direct authority>> The article flnds that two of the gender dlfference studles "deserve particular attentlon", as "thoughtful evaluatlons of the percepttons of the unlverslty students, faculty and staff although they are Ilmlted by response rates of 57% and 31%, respectively" It finds also that a third study 1S "0 notable exception with respect to gender, S1nce these, authors found no slanlflcant d1fference 1n men's and women's oerceot10ns of sexual harassment " {EMPHASIS IS OURS} On the incidence of sexual harassment, the article finds "the most reliable data come from a cgrefully designed, random-sample survey of 24,000 US government employees in 1981, and updated in 1988" whtch found "among the more than 20,000 respondents to th1s survey by the U S Merit Systems Protecti.on -.-- -- - - --,- - _.- - - - - -- -- ..- --- - '--" , . 64 Board, 42% of the women and 15% of the men reported having been the target of sexual harassment 1n the pr~ced1ng 24 months" "Despite the h1gh prevalence rates c1ted, the frequency of assertive responses, such as fU 1ng a formal complaint or seeking legal help, 1S very low as few as 11% of the v1ctims reported the harassment to a higher authority, and only 2 5% of the v1ctims ever inItIated an official gr1evance procedure" Whv do most vIctIms never fIle a comolalnt? And why is It not unusual for women to delavreoorttna sexual harassment? Dr Borins commented on the f~ possible explanat10ns suggested in the article, and presented some of her own theortes The art1cle states that Prof Anita Hill {for her 10 year silence} and Dr Frances Conley {for her quarter century sIlence} gave slmilar reasons "both were unw1lling to risk forsak1ng years of education and rigorous traInIng and JeopardizIng theIr hard-earned success They were uncertaIn that reporting harassment could help them in any way and were concerned that 1t could hinder their progress" The article also offers some gender-based theories to explain the reluctance of women to use official grievance procedures, suggesting that "women and men have different approache~ to resolutIon of disputes", "this may mean that female victims just want the behaviour to stop They may not wish to judge or punish the offender and may avoid formal processes as a result" Other lIkely (-' gender-based explanations offered by the article "the socialIzatIon of a woman to put the needs of others above her own", "many women experience conslderable pSYCh1C conflict about anger", and "a female victim may opt to preserve some form of relationship with a harassing colleague rather than to resort to legal measures" The article observes "It is important to note that little is known about the reporting patterns of male victims" Dr Borins testified that generally, in her experience, the reasons given by a v1ctim for coming forward wIth a complaint of harassment or abuse is "much more related to a deep-seated sense of morality and integrity, a very strIking concern for other people TheIr motivations are very altruistic Reta 1 i. ati. on, revenge, primit1ve motivations are usually not there" She explained also that l~ 65 peer group pressures could 1nh1b1t v1ctims from report1ng harassment, where the v1ctIm be11eves her compla1nt w111 not be supported or valIdated by her co-workers, and th1s may expla1n the low level of compla1nts Dr Bonns expla1ned also that the traumat1c or shock effects often assoc1ated w1th exper1ences 11ke rape, assault, or 1ncest could be another probable or theoret1cal explanat10n for delays in reporting the event, and also for a v1ctIm's 1nab111ty to recollect the events accurately She acknowledged, however, that delays in report1ng sexual harassment may be cons1stent also w1th the absence of a traumatIc experience, and that many factors other than a traumat1c experience could affect the accuracy of a witness's recollect10n of events [In cross examInat10n Dr Bonns agreed that delays In report1ng may be cons1stent also w1th an 1nvalId compla1nt as well as w1th a valId one] Dr Bor1ns testIf1ed she has some anecdotal fam1l1ar1ty w1th falSIfied compla1nts, but she 1S not aware of any reported studIes or reported cases of false complaints She was aware of a case where a woman committed sU1cide after police and lawyers threatened to charge her with m1sch1ef, when SUsp1CIon of a false rape complaint arose from inconsIstencIes in her evidence Dr Borins acknowledged that she is unable to help us determIne whether a complaInt is false, or whether it 1S motivated by base emotions such as revenge or retalIatIon False complaints, llke false den1als, may be associated with a personalIty d1sorder, but not necessarIly so The psychIatr1st's concerns focus on d1agnosis and treatment, not on whether a victim's complaints of rape, assault, abuse or harassment, are true or false For the purposes of therapy, the ,psych1atrist assUmes the events occurred as reported, at least until it is learned from the v1ctIm whether somethIng else 1S going on, such as physical health, wh1ch may affect her well-be1ng In cross-examination Dr Borins acknowledged there is no consIstent or reliable theory to expla1n or account for why victims may delay mak1ng reports of sexual harassment or abuse She acknowledged the delays are dIffIcult to comprehend and they may be consistent with either a valid complaint or an i.nvalId complai.nt, and that the delay may underm1ne the credibilIty of the - ~ ~ ~ I 66 compla1nt Also, she acknowledged that "a compla1nant's return to work, as 1f nothing happened, could becons1stent with no event hav1.ng actually occurred" In cross-exam1nation Dr Bor1ns acknowledged that it is not unusual for a complalnant to be dlscouraged by peer group responses WhlCh generally fall to support her, parttcularly where others in the group who have exper1enced the same conduct do not flnd lt to ~e sexual harassment Where peer group support 1S absent, the v1ctlm 1S d1scouraged from maktng her complalnts known, and she Bonns be lleves ,#."'-. may take her concerns underground or deny them However, Dr { , that in some cases there might be a threaten1ng element 1n the den1al, a fear of bemg ostraclzed for rejecting the group's Judgment, or a fear of belng regarded as an odd ball What may be a sexual joke or banter to the rest of the group may be sexual harassment to one person One woman mlght feel tnttm1dated or offended by what causes others to laugh, yet she m1ght sttll laugh at the boss's Jokes, lf she fears for her Job, or lf she fears belng left out of the group Dr Bor1ns observed that, even where the boss 1S not involved, the sexual ]Oklng among co-workers may border on harassment The defense of such hara~sers, she testif1ed, is often that they and others have always done the same th1ng w1thout any problems She believes that soc1al att1tudes towards such unacceptable conduct is changing rapidly, as evidenced by the changed <- att1 tudes towards the smoktng and dnnktng Wh1Ch we used to see d1splayed 1n the :lId mOV1es She bel1eves that pro-active steps by employers are needed 1n the Norkplaces to expla1n what is acceptable behaviour and what is not acceJtable, what are the differences between jok1ng and harassment ********************* THE MOTIONS FOR NON-SUIT AND FOR RE-OPENING As noted above, Employer's Counsel did not ind1cate the 1ntent1on to produce the letter of dism1ssal into eV1dence, or to caU on the eV1dence of the manager who had made the decision to dismiss Santos, at any t1me in the course of presentlng the Employer's' case ( "- .. 67 Not unt1l after she had closed her case d1d Ms QU1ck ask for Mr Coleman's consent to f1le as eV1dence management's letter of d1sm1ssal When we completed hear1ng the eV1dence of Dr Bor1ns on May 17th, Ms QU1ck announced she has no more wltnesses and that her case lS closed It was understood Mr Coleman would present his f1rst witness, the grievor, the next morning When we reconvened May 18th, Mr Coleman complained he st111 had not rece1ved certa1n documents from the Employer which he had requested previously and Wh1Ch he requ1red for h1S defense On many preV10US occaS1ons the V1ce- cha1r had urged counsel to make every reasonable effort to resolve the1r d1fferences on 1ssues such as the production of documents in order to conserve valuable hea rt ng t 1me They frequently succeeded 1n d01ng so, but on th1S occaS1on the panel had to resolve the 1ssue After hearing the representat10ns of counsel we dec1ded that the attendance records of the complatnant and the gr1evor for the years 1990 and 1991 are part of the defense and adm1ss1ble These records could be rece1ved as documentary eV1dence on consent of counsel, or, 1n the alternat1ve, Mr Coleman could call for the 1ssue of a personal subpoena duces tecum, requ1rtng the appropr1ate management witness to produce the records The records were produced voluntartly and entered as Exh1b1tS 23, 24, 25, and 26 In the course of reCetV1ng explanat10ns of certain notat1ons on Santos's 1991 \ attendance record [Exh1bit 26J regarding his absence for a suspenS1on, the vice-cha1r noted that a suspenS10n letter was not among the exh1b1ts filed w1th the panel In the d1Scuss1on Wh1Ch foUowed, 1t became apparent also that a d1smissal letter was not in eV1dence Ms Quick promptly offered to produce the letter 1f we requ1red 1t We rem1nded her once agaln of our repeated aff1rmations of her respons1b1lity for the conduct of the Employer's case, and we 1nformed her that because she had closed her case, the adm1ssion of the d1smissal letter into eV1dence now requires the consent of Un10n Counsel Mr Coleman promptly refused her request for consent The gr1evor had waited about two hours that morn1ng to be called as the f1rst witness 1n his defence, when Mr Coleman requested a mid-day recess to consult him Mr Coleman soon returned to the hearing room after th1S consultat1on -- - ~'~ , ~ . I I 68 I and promptly presented a mot1on of non-suit, wtthout be1ng put to an elect1onon the questtonof evidence, in the event th~ mot1on tS not successful, relY1ng on the Faler case (GSB 218/89){see below} He followed this with a motion, whtch we accepted, to adjourn until the next morntng, to allow counsel to prepare for the presentation of their respective arguments on \ I the non-sutt motton At no time prlor to the adJournment for the day, on May 18th, dld Ms Quick suggest that" she would ask us for the r1ght to re-open the hearing for the Employer's case C However, when we convened on May 19th Ms Quick presented a motion to re-open the case in order to perm1t her to produce the manager's evidence [the d1smissal letterJ to state the cause for dlsmissal The two motlons were heard and dectded together Both mot tons were dism1ssed In order to avoid gtV1ng a tactical advantage to either side, it was agreed in advance that 1n the event the motions are dtSm1ssed the Board would give no oral or wrltten reasons unttl such time as the hearlngs are completed and lt lssues its award on the merlts The Unlon took the position that it should not be put to its electton to call evidence, but rather the Board should hear the motton and if the Union does not succeed, then it should be free to call evidence if it so chooses We ( accepted Mr Coleman's proposal that we adopt the reasoning and procedures followed by Vice-chairperson Barry R Fisher in OPSEU (Faler) & Min1strv of Correctional Servtces (218/891 We exercised our discretion to allow the Union to proceed "with tts motion for non-suit without the requirement of having to elect as to whether or not to call evidence, on the understanding that if the Board dismtsses the-matton, it shall do so wtthout wrttten or oral reasons Based on the circumstances of this particular grievance arbitration we were persuaded that the possible advantage of savtngs in hear1ng days, with an expedttious oral ruling, was not overridden by procedural unfairness The non-sutt motion, to dtsmiss the Employer's case and allow the grievance, in Its essence, is grounded in the Union's claim that "the Employer failed to provide any evidence on the crittcal issue of its decision to dismiss the l .. 69 grtevor" The Umon subm1ts that we know that Santos was dlsm1ssed, but we do not have any evtdence on why he was dtsmtssed, that there tS no evtdence on the cause for dlsm1ssal, on whether the deciston was based on sufftctent or Just cause, and that there tS no evtdence to ltnk the eV1dence we heard on the 1nvestlaat1on of the alleaati?ns to the dismissal action The Unton argues that we do not know tf the Employer accepted or reJected the allegattons made _agatnst Santos because no evtdence was presented on thts cr1t1cal questton It subm1ts that we can only speculate on why Santos was dtsmissed because a v1tal element of the Employer's case has been omttted, and we have no evtdence to inform us on thts important question We agree that we do not have the very best or the most dtrect evtdence on the cause for d1smlssal, such that the decision-maker could have provlded There are many roads to Rome, and the Employer obvtously chose a much less dtrect route The Employer's eV1dence on thts tssue 1S less dtrect and more Ct rcumstanttal A causal connection between the dtsmtssal and allegations of sexual harassment was established through clrcumvolution, a roundabout course or procedure Whtle a causal connection was established on prIma faCIe evtdence, tt remalns to be determtned whether sexual harassment can be proven on clear and convtnctng evtdence and whether the cause for dtSm1ssal tS Just or reasonable tn all the ctrcumstances of thts case We accept Ms Quick's submisston that all the evidence we heard from the Employer's wttnesses, looked at In lts enttrety, establtshes that the dismtssal was causally connected to the Employer's acceptance of the complatnant's allegattons of sexual harassment, and that this followed a prolonged official investigation Ms Albrecht, a senior manager, test1fied that Santos was suspended pendlng an investigation of the sexual harassment charges and that he was re-tnstated before his dtsmissal Her evtdence tndicated that the dismtssal followed the investigati:on of the allegattons Mr Yetman, who was appointed to investigate Ms Crutckshank's allegations of sexual harassment, testifted he dtd so over a period of about 10 weeks, endtng some ttme 1n February, and that Santos was d1sm1ssed followlng the completlon of hts investigatton Ms Cruickshank testtfied she was informed of the t 70 results by mall ln Aprtl, 1992 ~I understand that the result was that Santos lost his Job" Other wltnesses also knew that Cruickshank's allegattons resulted In Santos's dismlssal We cannot accept the Union's clalm that there tS no evtdence on the vltal i.ssue of the cause for dtsmtssal, that there tS no evtdence to ltnk the d1smissal actlon to the eVldence we heard on the lnvestigatton of the sexual harQssment allegattons We ftnd that the Employer produced the necessary and suff1C1ent evtdence to establish a prima facze case that the Employer's cause f for dtsmtsstng Santos tS sexual harassment There is no evidence, however, that the Employer had acted on any dlfferent or addlt10nal cause than sexual harassment Nor does this findtng tmply tn any way that the cause on Wh1Ch the Employer had acted was or was not a just or reasonable cause for dlSmtssal For the reasons stated herein the motl.on for non sui.t l.S denl.ed The prlmary purpose of Ms Quick's motion to re-open lS to pre-empt the non- SUt t motton Our understandlng is that the motion was intended to provide the Employer with another opportunity to provide us with the alleged "mlssing ltnk" of the causal connectton, either by way of the letter of dtsmtssal or by the evtdence of the dectston-maker Ms Quick assured us that the proposed re- openlng was not for the purpose of presenting new or addttional evtdence on (' whether the causes or the reasons for the dismissal are correct or constttute ". Just cause She described her motion to re-open as "procedural and not substantIve" {It should be noted that Mr O'Toole has a dtfferent vtew of thlS, tn that he believes that the purpose of the motton was not restrlcted to the questton of the causal link, but was tntended to permit the Employer to tntroduce additional evidence in support of its claim of Just cause} oMs Qutck asked the Board to exercise its dtscretton to permit a case to be re-opened when a piece of evidence i.s inadvertently or unintenttonally left out She clalmed that her failure to produce the Employer's reasons by way of the dlsmlssal letter was inadvertent on her part, that it flowed from discussions before the Board on the Investigator's report, WhlCh she had orlglnally intended to introduce in evi.dence She attr1buted the inadvertence ( ...~ I w r;-. 71 to her understandlng that the Board preferred the dtrect eVldence of the complatnant and other wttnesses, over the Investtgator's hearsay evtdence Ms QUlck cla1ms that as a consequence of her understand1ng that the Board wtshed her to proceed to the substanttve evidence as qutckly as posstble, she tnadvertently omltted addresslrig the issue of the dlSmtssal letter She submits thts was not a deltberate omtsston It should be noted that the Board dtd not, at any ttme, refuse to recelve hearsay evtdence such as the Report of the Investlgator, subJect, however, to the subsequent determlnation of questions of legttlmacy, relevance and we1ght We did, however, frequently caut10n counsel regard1ng the qualtty of hearsay eVldence tn relat10n the requtrements for the standard of proof normally appllcable to dtsmissal cases such as thlS The Board lndlcated lts preference for the dtrect eV1dence of the witnesses, as the best evtdence, over the hearsay evtdence of what the Investigator mtght report Ms Quick relies on the follow1ng authorit1es [a] Roblllard vs. The Oueen [41 CCC (2d), pp 1-6--Supreme Court of Canada, Laskin,CJC, Martland,Ritchie,Spence,Pigeon,Dickson,Beetz, Estey and Pratt ,JJ--May 1, 1978] [b] Her Maiestv the Oueen vs. M.B.P. [Supreme Court of Canada, unpubli shed, appeal heard November 12,1993,Judgment rendered Apr 14,1994, Reasons for Judgment by The Rt Hon Antonio Lamer, PC]. The headnotes to Robll1ard vs. The Oueen state "A trial Judge has the discretion to permit the Crown to reopen its case, which discretion should not be interfered with unless an injusti ce has resulted Further, this discretion is not subject to the strict limitation of matters which arise ex improviso "which no human ingenui.ty could have foreseen" In this case there were no grounds for interfering with the trial Judges's discreti..on,,,pe.rmitting the Crown to correct an omission due to an inadvertence " Her Malesty the Queen vs. M. B. P. clari ftes "The Prtnctples Govermng Reopentng" as follows "The keystone principle in determining whether the Crown should be allowed to reopen its case has always been whether the accused will suffer prejudi ce in the legal sense-- that is, will be prejudiced in his or her defence A trial judge's exercise of discretion to permit the Crown's case to be reopened must be exercised judicially and should be based on ensuring that the i.nterests of justice are served ~ ~~---~~~--~ ....,"~,.. . - 72 --- "Tradi tionally, courts in Canada and in England have treated the stage reached in a proceeding as correlative to prejudice and injustice to the accused That is, a court's discretion with respect to reopening will be exercised less readi ly as the trial proceeds The point is illustrated by taking the following three stages in a trial (1) before the Crown closes its case, (2) immediately after the Crown closes its case but before the defence elects whether or not to call evidence (most commonly, this is where the defence has moved for a directed verdict of acquittal for failure by the Crown to prove some essential ingredient in its case), and (3) after the defence has started to answer the case against it by disclosing whether or not it will be calling evidence "In the first phase, before the Crown has closed its case, a trial judge has (~ considerable latitude in exercising his or her discretion to allow the Crown to recall a witness so that his or her earlier testimony could be corrected Any prejudice to the accused can generally be cured at this early stage by an adjournment, cross-examination of the recalled witness and other Crown witnesses and/or a review by the trial judge of the record in order to determine whether certain portions should be struck "Once the Crown actually closes its case and the second phase in its proceeding is reached, the trial judge's di scretion to allow a reopeni ng wi 11 narrow and the corresponding burden on the Crown to satisfy the court that there are no unfair consequences will heighten The test to be applied by the trial judge is generally understood to be that reopening is to be permitted to correct some oversight or inadvertent omission by the -Crown in the presentation of its case, provided of course that justice requires it and there wi 11 be no prejudice to the defence "Lastly, in the third phase after the Crown has closed its case and the defence has started to answer the case against it (or, as in much of the case law, the defence has actually tlosed its case), a court's ~iscretion is very restricted and is far less likely to be exercised in favour of the Crown It wi 11 only be in the narrowest of circumstances that the Crown would be (, permitted to reopen its case Tradi tionally, an ex improviso limitation was said to apply to t~is stage of the proceeding, that is, the Crown was only allowed to reopen if some matter arose which no human ingenui ty could have fo re see n At this stage, the question of what 'justice' requi res wi 11 be directed much more to protecting the interests of the accused ~han serving the often wider societal interests represented by the Crown, the latter bei.ng a more pressing consi.derdtipn at the first and, to a lesser extent, the second phase " We are not convinced that the failure to produce the evidence of the dec1sion-maker or the dismissal letter was unintentional Ms Quick is an experienced counsel who had full control over the presentation of the Employer's case, tncludtng the selection of the witnesses and the order of thetr presentations to the hearings The panel's concerns on such matters had been brought to her attention on several occaSlons in the course of the presentation of the Employer's case t '-- ) ~ 73 In our judgment the reopenlng tS not requlred by unforeseeable or exceptlonal Ctrcumstances The Employer did net demonstrate that tt had clearly 1ntended to produce the addttlonal evidence at an earlier stage tn the proceedlngs, or that the evidence could not have been produced earlier in the proceedings by reasonable dlligence To permtt the Employer to reopen at thlS advanced stage in the proceedtng, after tt had closed its case and after the Unlon Counsel had started to meet the case against the grlevor with a motlon of non-suit, would be an tn)usttce to the grtevor and preJudictal to hts defence For the reasons stated heretn, the motion to reopen lS denied THE UNION'S WITNESS No wltnesses other than the grlevor testtfied in hts defence The EVIdence of Graciano Santos The dtrect examinatton of Graciano Santos commenced the afternoon of May 30, 1994 and conttnued through the next day H1S cross examtnatlon began July 21 and cont1nued July 26, September 16 and 26, 1994 Santos test1fled he is now 3S years of age After graduating from grade 12 high school in 1979 he worked at Canada Packers He played semt-professtonal soccer from 1979 to 1983 when a ! knee lnjury ended that career Starttng in January, 1981, he worked for a prtvate company as a security off1cer at the QSMHC until May, 1981, when he became a government employee He continued worktng as a secur1ty offlcer there, w1thout tnterrupt1on, until hlS dtsmtssal He never recetved formal tratning for the Job In 1989 he was permitted to take a course at the QSMHC intended for nurses, on how to deal with hostile or aggresstve patient behaviour Also, at one time, he received traintng in the use of handcuffs Santos's performance appraisals for hlS flrst nine months of employment were "far above average", noting that he is "very cooperative wtth all staff, peers, patients as well as the publtc", "uttltzes good Judgment at all t1mes", "requires very llttle supervision and can be depended upon ln all 1nc1dents", "handles all Sttuatlons well, this includes both dtfftcult and relatively . 74 routtne sltuatlons", and "remalns courteous and helpful to all persons at the Centre" [Exh1bit 29J Santos's most recent performance appratsal, for the year 1990, was signed by Robert Frost, the Securtty Department Manager, and dated January 30, 1991 Santos sald that Robert Frost had been in h1S poslttOn for only about two weeks when he prepared h1S 1990 appratsal It rated hlS knowledge and performance of Job functlons at above average, nottng that he "demonstrates above average Judgment", that his 'work is generally thorough, neat, and accurate", and that he "malntatnS required standards wtth general supervislon" The appraisal notes that h1S reports are short and "lacktng ~ f ~ , ~. deta1l" [Exhtbtt 30J Santos test1fted that h1S dtsctpltnary record was clear unttl October, 1991, when he was suspended pendtng the tnVestlgatlon of Crulckshank's complatnt In the three-years prtor to hts dlSmtssal tn March, 1992, the pertod matertal to the complalnt, accordlng to Santos's recollectlons, the Security Department at QSMHC had 10 full-ttme and 3 part-t1me guards, 2 superVtsors and a manager The Security Office is located on the flrst floor, near the Admttting Department The Security Manager's offtce is somewhat removed, on the second floor of the same bUlldtng Santos testtfied that he and the other security offtcers worked 12-hour ('" \'" Sh1fts, 7 to 7, tn a cycle of 4 day shifts followed by 4 days off and then 4 night shtfts, thts cycle was repeated, with an etght-hour Shlft worked every sixth week Santos's regular partner was Steve Kerr They were regularly scheduled to work the same shtfts together Santos also normally worked hIS last day shift and ftrst ntght ~hlft, in each cycle, w1th Brent Welsch, another off1cer, and hts ftrst day Sh1ft and last ntght shift, wtth Helen Gerardi, a supervisor "They are the people I worked with It didn't change much" Shtft schedules were posted monthly on the bulletin board in the SeCUrl ty Office Part-time offtcers would be employed to replace full-time offlcers on slck leave or vacation j. ~_. 0 75 Santos testtfled that the POSltlon Specif1cation for hls Job as Securlty Offtcer at QSMHC [Exhtbtt 4J "pretty much covers tt" One of the dutles it describes is "stand1ng by tn Admitt1ng on all Form 1 (lnvoluntary) patlents and as necessary at request of Admitttng staff when dtfftculttes are anticlpated when dealtng wlth clients" Santos explained that usually one security offtcer tS present tn Admitttng for pattents who mtght become vlolent "Another would be called if needed Sometimes two mlght come, dependtng on how busy Admitting is at the ttme " Security offlcers are requlred to prepare special Sttuat10n reports for occurrences Wh1Ch are out of the ordinary, Itke ftres, thefts, or break-1ns, as well as a datly activtty report The practtce qt the materlal tlmes was to leave the completed reports in a tray in the Security Offtce, where they were picked up by a superVtsor who took them upstairs to the manager's offlce There they were ftled after the supervisor used them to prepare the monthly statistical reports Santos testified the supervisors (but not the officers) had keys to the manager's offlce Officers have the keys to the regular doors, but not to pat1ent records, personnel department, or any of the sensttlve areas Certain keys are kept ln the Security Offtce and are asslgned when required for access : to destgnated areas Keys to clintcal record rooms are not kept tn the Securtty Offtce but must be obtatned through the Nurstng Department or the Adm1tt1ng Department He did not have the key to the record rooms ln elther the Unit 4 or Unit 2 basement The clerk or nurse whom he. escorted would carry the keys to the rooms where the cltnical records are kept Santos would not have the keys Usually, he would escort either the nurse coordtnator or the clerk who normally would retrleve a file Less often tt would be a nurse They would get the the keys before he escorted them Sqntos testtfied that the fl1es for acttve patlents are kept on the wards where the pat tent resides The clintcal records for pattents tn the three day care programs are filed where the the program is located, either ln Unlt 1- basement, Un1t 2-basement, or Untt 4-first floor The hlstortcal records for -- - -- - ~-- - - -- --~~-- -- - -- -~ ..,rl''' ~:-:, . . ~ 76 former pattents of the LakeshorePsychtatrtc Hospltal are stored tn Un1t 4- basement When a former pattent came to Admttting the clerk or nurse would find the locatlon of the patlent's cllnlcal records on the computer However, a regular clerk was not always scheduled to work through all mghtshtfts tn Admt tti ng The nurse would go on the flle retrteval only when neither the clerk nor the coordlnator was available Santos testified he had done over 1,000 escorts for file retnevals tn hlS 11 years of servtce as a securlty offtcer Most of them were done after 4 30 pm C on week days, a lot on the weekends, starttng in the mornings, but very rarely on then1ght Shlft, between 11 pm and 8 am When he was called upon to do a flle escort on the ntght shtft, Santos satd, it was most often wtth a nurse coordInator or a clerk Only once dtd he ever escort a nurse on a ftle retrleval on a night shtft, and that nurse was Cruickshank He testifled also that hts file escorts were most often to the first floors of Units 2, 1, 4, and 3, for the clintcal files of pattents who had been discharged from those unIts, and less often to the file rooms of the day care programs located in the basements of Units 2 and 1, to retrieve the cllnical records of patients enrolled in those programs Santos testtfted that the file storage area in Unit 4-basement tS a dull gray room occupied by several thousand histoncal files in 10 to 12 stacks, and ( that tt tS not at all stmIlar to the Unit 2-basement area occupted by a day- care program, which is colourfully decorated and furnished, and contaIning male and female washrooms, several small offices for staff, where 30 to 45 ftles are kept in a small wall um t in one of the small offices They are so very different that lt is impossible to mistake one for the other Nor are they close together Both are in the basement, but in two separate buildings about 100 feet apart and connected by underground tunnels Santos testified that a ftle must not be removed from or returned to the Unlt 4 file room without the responsible person signing for it, both out and in Santos testified that it IS verv diffIcult to understand how Cruickshank or anvone else could oossiblv have been confused between the two file rooms. in U-2 and U-4. when thev are so very different. , . \..~ '-' z 77 Santos's evidence is that the onlv occaSlon he had escorted anvone on a flle retrleval durtna a niaht shift was also the only tlme he had escorted Crutckshank to retneve a oatlent's records He descrtbed that occaSlon ln the followtng manner He met Crutckshank at the Admltttng Department to escort her to the Untt 2-basement They took the route above ground On the way they conversed normally as they walked and she had her arm around h1S "If anyone had seen us they would have satd we were havtng an affair " They went to the flrst floor of Unlt 2, to the clinlcal records room behind the sWltchboard operator's booth tn the lobby Cru1ckshank had the key to that room She checked there and couldn't find tt After the brief check there, they took the elevator to the basement to check the day-care records in Untt 2-basement She had the key to that too She couldn't ftnd the ftle there so they went back to the first floor by the same route It was the middle of the n1ght She checked the clinlcal file room agaln, more thoroughly this time Agatn, she dldn't f1nd the ftle there They returned back to the basement agatn because she thought she might have missed it He did not recall finding the file, but he remembered that she had checked the basement twice They returned by the same route, the elevator to the ftrst floor of Unit 2, and then by the walkway back to the Admttttng Department "I don't remember what happened after I escorted her back to Admttttng I don't remember the date, but I remember that escort because tt is the only one I ever dtd wlth her" Santos said he had known Cruickshank since she started working tn Admitttng "We were on friendly terms We had a comfortable relationship developed over several years I never had any complaints from her We had very amlcable worktng relations We were two working friends " Santos described an inctdent that happened before she started working in Admitttng He had given her a rtde on a scooter he used for "trouble shoottng" at times on the nlght shtfts It happened a long ttme ago He hardly knew her, long before he escorted her to the U 2-basement He was gotng to U-2 [ftrs~ levelJ tn response to a radio call to open a door, when he saw Crutckshank and gave her a ride to the U-2 lobby It was a one-seater scooter He stood up and she sat on the seat "She must have held on to me It dldn't last long, only about a mlnute I let her off and went about my business " It was a one-way trip Nothtng special happened He knew who she was and may have known her first name -,,'. . 78 Santos denled Crulckshank's accusatlon {fourth alleaatlon1 that he sexually assaulted her ln either the U-2 or U-4 basement "I never touched that lady, I never layed a hand on that woman in a harmful way or tn any lnapprOprtate way I never harmed her I never dtd anything to that lady except be her frtend " When questloned on the first alleaati~n, where Cruickshank alleged that some day ln 1989 he pulled down the front of her blouse and looked down tt, Santos strongly dented 1t ever happened "I never looked down her blouse I never pulled her blouse I never pulled any part of her clothtng " f" " ,; "'/ Santos dented also Crulckshank's allegattons regardtng the second alleaation "No, I did not invtte her to JOln me on her break in the physlotherapy room upstai.rs I couldn't have because I dtdn't have the keys for access to that room I never asked her to go anywhere wlth me on her break" The Employer Member, Mr O'Toole, asked Santos, "do you also deny ever gotng wlth her on a break together?" Santos replied There's been lots of sexual banter between htm and Cru1ckshank, and tt was mutual, but he never asked her to go'anywhere with hlm for a break The only breaks he took with her were when he sat wlth her in the worklng area of Admittlng At ttmes others were there as well They would often share a ptzza, food that he got from outslde because there is no cafeterta On occasions she brought food from home and (' shared it wtth hlm They celebrated one or two New Year Eves together ln Adm1 tting "I'm absolutely sure I never asked her to ]otn me on any spectal break, on anyth1ng llke she says" When questioned on the third alleaation Santos replied ln this manner He di.d not recall telling her 'I don't want to marry her, and that I Just wante~ to have fun', but he could have satd tt when they were bantering around "We would talk about sex in a joking way" He said he never took anythtng she said sexually as serious and she never took anythlng he sald sexually as serlOUS "We would try to see who could embarrass who just for laughs" He dldn't see her that often, not every day, but on a few occastons when they worked the same shifts "Bantering wasn't the only way we related ('-. -; ~ 79 We had normal conversattons about every day llfe We talked about vacattons, about what was ln the newspapers that day, but we never talked about our personal llVes " Santos descrtbed hts relatlonshlp wtth Cruickshank tn thts way When they engaged in sexual bantertng she laughed and smlled and she would say thlngs in a frlendly way He never offended her If he had known she was offended he would have stopped tmmedtately "I am sure I never mlslnterpreted my frtendshlp wlth thts woman" He never found her to be uncomfortable 1n thelr sexual banterlng He belleved she felt comfortable enough wtth h1m to be able to tell me if she felt anything he said or dtd made her uncomfortable He could not have had a relatlonship with her that long wlthout a complalnt from her, if there had been anythtng he dtd wrong If he ever made a mlstake or offended anyone by what he said he was always the flrst to apologlze "I don't dtsagree that she was shy and paSSlVe wlth certmn people, but not wlth me She was not shy and passtve around certatn people she was comfortable wlth, and she was comfortable around me, to have ptzza and to talk w1th me She was open wtth me and never embarrassed wtth me Lots of people dtdn't take the t1me to talk to her and get to know her I dtd because I'm a people person " Regardlng the fifth alleaation. Santos testifled he dtd not remember saYlng to her "you need to get latd", and he does not believe he would have satd that to her He explalned why in thlS way He often said to people 'relax, relax, you're too tense', and that's what he mlght have satd that night if she was getting up tight He usually sald thlngs ltke that to people when they get too sertous because tf you work at Queen Street you must not take life too seriously From the klnd of problems he experienced wtthpatients at Queen Street, he learned not to take thtngs too sertous ly "You need a sense of humour where I work There are certaln phrases I use around people to get them to laugh or lighten up, Itke calling them 'baccala head' or 'tumor head' " He thought it was llkely he called her a baccala head, Itallan for cod head "I'd never say to her 'you need to be lald' " The sense of his testimony is that whatever he may have satd to Crutckshank at that ttme was intended to help reduce the tension in the situation, and not to offend her - ---- ~ . 80 Regardtng the stxth alleaatlon alleged by Crui.ckshank, Saritos testtfled She told h1m she couldn't get the world cup soccer games on her TV and he told her it was now free on the TSN channel She had not known thlS She asked hlm to tape some games for her and he told her he would be glad to do it because he had a VCR She knew he was tnterested in soccer and asked him to go to her place after the night shi.ft to watch the games on tapes "She asked me out of frtendship 1 told her 1 couldn't do that after worktng a 12-hour shtft She never asked me again to tape a game I had left it up to her to let me know whtch games she wanted me to tape After that, during the ("1 two or three weeks of the world cup, our conversations were about the games and not about tapes I never said anything about going to her place to watch the games and sleep wtth her 1 never took anythtng she said about the games to be sexual, and I never said anythlng sexual in connectlon with the games" Santos dented Crutckshank's seventh and etahth allegat10ns concerntng lnCldents 1n the "bed and slnk" room where she usually took her breaks He was never in that room wtth her He has used that room to wash up, often ln the company of ambulance attendants or police, and usually after restratntng a patient "I have gone there to wash my hands, but never by myself that I can remember " When asked tf he recalled a discussion wtth Cruickshank, after her allegattons about the bed and stnk room, when- she said "I'll tell your fiance if you don't stop", and where she said hts reply was "my fiance -doesn't care what I ( do as long as I don't leave her", [eiahth alleaation], ~antos answered "I don't recall tt, but that would not be unusual, in our joking around I may have said somethtng to that effect But I would not have said my fiance wouldn't mInd watching" He would not say that about his fiancee, not even in Jest, because it would be insulting to her "1 joke about myself, 1 don't Joke to insult others It's ok to insult me in jokes, but I wouldn't insult others I prefer to call her my f1ance although our frlends and famtly regard us as husband and wife" When asked tf Crulckshank asked htm when he was getting married, Santos rep lled "Yes, she did We talked about marriage more than once I told her we wanted to get married but we wanted to buy a house first We had lots of '<:- 'j''; .' ~ 81 conversatlons of that nature I recall the subJect ofmarrtage came up ln our normal conversattons " Santos was asked about the occaS1on whtch Crutckshank sald she had handed htm some literature on sexual harassment He replled "She never gave me anything to read on sexual harassment" However, he did recall that she had once made a comment 'what we're talking about could be considered harassment' and hlS response was 'yes, but who is harasstng who?' He said she laughed and smlled and that was the end of that dlScussion "Her comment was not ser10US and neither was mine It was friendly banter We were Jok1ng around If she was serlOUS she would have looked me in the face and would not have laughed about 1t when she said 1t " Santos dented he tnvtted Crulckshank to Join hlm on a break and he dented ever saytng to her he "would be gentle" [mnth allegatton1 Santos described what happened on July 19, 1991 rtenth alleaat1on1 After the afternoon Shlft had gone home, about 11 15 pm, he locked the front doors of the Admitttng Department Then he went tnto the nurslng statlon where Crulckshank was alone and they exchanged pleasantrtes She was at her desk on the north wall and he was standtng near the door [1103} ln front of the bookcase on the west wall, next to the door He was looklng for somethtng to read on the bookshelf While they were Joking around ln a teaslng manner she satd 'you're all talk', as she walked over to open door 1103 He turned around She was there right behind him when he put h1S hands on ~er hlpS and asked her 'are you sure I'm all talk?' "I think I might have startled her I had a light grip on her waist, Just above her htps, when I suddenly let go She lost her balance and fell forward My back was to the door when she fell away from the door, toward her desk I moved toward her to help her up " She said she was ok and would get up on her own She looked up He saw her looking towards someone ln the window behlnd his back "I turned around towards the window and I saw Dr Logan comlng into the lnterVtew room She got up and ran past me to Dr Logan" He dtdn't see - - - -- ---.- -- ." . 82 hlm unttl he turned around toward the glass partltion WhlCh was the top part of the wall next to the door She ran tnto the lnterVtew room where Dr Logan now was "I don't know what she told htm but I heard her say something ltke help me, I help me I was stunned I was feeltng odd (or, awed?) I wondered what Dr Logan would be thtnktng I remalned ln the nurstng statton feeling very awkward I felt it was embarrasstng because Dr Logan dldn't see what happened, except he could have seeh me trytng to help her up from the floor, f~ and he mtght draw a wrong conclusion, especially after seetng her run out of the room " After about three minutes, they ca~e back to the nurstng statton Santos SOld he started blabblng and sald 'Kath~, you trtpped' and she answered 'leave tt alone' After 5 or 10 mtnutes, he left and went to the Securtty Offtce where I he told hlS two partners Brent Welsch and Steve Kerr about what had Just happened He told them it looked e~barrassing and made h1m feel awkward He I could not remember what they had sqtd to him About an hour later Santos got a call from Admttting to open the door for a patient He was st1ll feeltng awkw~rd but he thought Kathy {Cru1ckshank} seemed to feel OK I . ( He asked her, '00 you know what you d1d? You went runn1ng '-:.: to the duty doctor?' He told her h~ was concerned what the doctor mtght thtnk She sald, 'Leave tt alone Everythlng 15 alrtght I dtdn't tell htm anythtng , I He made a pot of coffee wh1le watttng for Dr Logan "She was friendly and I smlltng and when the doctor was there she SOld I made a good pot of coffee I That all made me feel better She satd that tn front of the doctor She was pleasant, bubbly and back to norma 11 It made me feel more comfortable and what I was feeltng went away It was a ~usy ntght I spent most of the night in Admttting after that I went a couple of blocks from the hospttal to get some ptzza for us, and Kathy and I had our lunch together in the nursing station between 1 and 2 am " .' "-- ~ 0 83 When asked about Crulckshank's testlmony regardlng the comment he made ln the banter precedlng the tnctdent, that he told her she is losing wetght and that her breasts are getttng smaller, he replled "I never satd that But sometlmes we dtscussed diets in women's magaZtnes, how people lose wetght, lots of things Itke that I don't recall discussing diets with her the ntght of July 19th, but tt lS somethtng we could have discussed" Santos dented touchlng her breasts when he held her "That lS not true I dld nothing like that I just touched her hips What she descrtbed was not flirtlng or Joking around between friends It wasn't at all like she descrtbed The only phystcal contact was my hands on her hlpS, whtch was done ln a )oktng and frlendly manner {By gestures, he tndlcated what he meant was that he held her immedlately above her hips, at her watst } Santos dented also telling Cruickshank that what he dtd wlth her he ~oes all the ttme with Debbte and others Santos acknowledged Hart's evidence that he parttcipated in a conversatlon between her and Cru1ckshank regarding Itngerie ads and that he had asked what kind Crulckshank llkes to wear He descrlbed it as a normal response in that conversatton He was sure Crutckshank was not upset by anythtng he had sa1d When questioned regardlng Hart's evtdence that she heard htm tell Cruickshank that she wouldn't be creat1ve tn the bedroom, he replted "I don't remember saytng that But we somettmes had sexual banter like that We Joked about sex and preferred poslttOns We talked about thtngs like that, we would throw ideas around, in a bantertng way" Santos denied Hart's clalm that she once heard him tell Cruickshank he would like to father her children "I definitely never made that comment, not even in a joking manner " Santos denied also Hart's evidence that he once offered to let Cruickshank see his penis He acknowledged however he has talked on occasions about n1cknames for a pents and he likes to tell about comedtan Robtn Willtam's three funny , .> 84 names for lt "heat-seeklng-mo1sture mtsslle, python of love, and Mr Happy " Santos satd Hart might have misunderstood some of hts Joking He explatned that he uses his sense of humour to Joke about such sexual th1ngs in order to deal wtth the embarrassments created ln the Admitting Department by patients who arrlve naked or who strip when they get there He needed a quick Wlt ln hts work, he satd, tn order to deal wtth the many strange things that happen in thts mental hospttal, llke pattentsmaking love in hallways He would Joke about these thtngs wlth Crulckshank At tlmes, others would be present But he .- sald his joklng was about everything, not Just about sex He sees htmself as (, "a Joktng guy", Just as many witnesses described him Santos testifted that hts Joking wtth Cru1ckshank was not only sexual, but also about other thtngs Nor was the teastng and Joktng Just one way Most of the time they had normal conversations, but somettmes she trted to embarrass him She once told him, 'I usually end up sleeplng with people if I feel sorry for them', when he answered not to worry for htm The time she talked about sleeptng with him he took as a Joke to try and embarrass htm She also offered to get him dates wtth her friends whom she descrtbed as just perfect for htm However, he didn't thtnk she was trytng to set him up "She would be teastng or kiddtng me in her way, just Itke I would in my own way" In response to questions on Donnelly's evtdence, Santos acknowledged -he had ( '. produced the clay penis which he and Kerr had given as a prank gift to a close frtend, Debbie McKeown, a nurse, who also worked in Aamitttng, but on a dtfferent shift than Cruickshank "We made sure no patients were there when we brought in the gift-wrapped box" Debbie opened it, looked in and laughed, and left the box on the desk Nobody could see what was in the box unless they came right up to it and looked in "Debb1e and I have been friends a long time We socialize outside of work with the same frtends I knew it wouldn't shock or offend her or others who know me And they know I wouldn't do anything to offend or hurt anyone It was Just a gag gift to a frtend " Santos described the gift as a "gag" We understood thlS to mean a hoax, a humorous deception, a harmless trick or sham which amuses by its startling or (~ ~ .. 85 surprlslng qualttles Santos recognlzed that not everyone would see the humour of it, and he took steps to assure that those whom he did not know well or whom might be offended by it, were not exposed to the "gag glft" It tS our tmpresston that much of hts sexual bantertng and Joktng were "gags", ln a simllar sense He assured us that Jokes such as- these are reserved only for hts frtends In our judgment, such Jokes are not lnherently harass lng, but they could be sexually harassing tn partlcular clrcumstances, however, dependtng on the nature of the relattonshtp between the receiver and sender, which could affect the "message" that the sender intends by the "Joke" and the meanlng WhlCh the receiver wtll percetve Santos testtfted that he had belteved for a long ttme that Cru1ckshank was hlS frlend She part1clpated 1n the sexual Joking and bantering, although not to the same degree as closer frtends There are certain thtngs he would not say or do to her because he would judge them to be unacceptable to her, based on the knowledge he acquired in their relationshlp Santos testified that Crutckshank never told him that she found his jokes, bantertng or pranks to be 1nappropriate, offensive or harasstng Nor dld any of h1S co-workers Nobody ln management ever satd anything to htm about his sexual Jokes or pranks He testlfted also that he had never recetved any informatton on the Mlnistry's sexual harassment policies unttl Yetman sent htm a copy in the mail, after he I was appotnted Investigator of Crutckshank's complatnt I Santos testifled that when he was suspended he was simply told that he was I accused of sexual harassment The Employer refused to tell htm who made the complatnt Hts November 12, 1991 grtevance on hts suspenston resulted tn hts return to work without loss of pay He found that even after hts return nothing was being done about the sexual harassment allegattons agatnst him That is why he grteved again on November 22, 1991 to seek an immedtate tnVestlgattOn of the complatnt c'"'' > 86 THE CROSS-EXAMINATION OF SANTOS Santos was shown a letter by Employer's counsel whtch he tdenttfted as the letter dated March 23, 1992, addressed to h1m by Alltson J Stuart, Adm1ntstrator, QSMHC, whtch dtSm1ssed hlm from his employment [EXHIBIT 33J [This was the first t1me the panel saw thts letter J Santos said he dtd not attend the d1sm1ssal meettng wtth the Superlntendent because tt was called on one of h1S off-days It was deltvered to hIm through a Union representatIve who attended the meetlng on hts behalf (- Santos conftrmed that he had met and courted hts ftrst wtfe and hts present fiancee whlle working at QSMHC When asked tf he dtd not agree it was tnapproprtate for htm to combtne his work and soclal Itfe tn that way, he replied that he dld not see tt a problem for h1m because he tS not tn a posttion of power He explalned further "I only use sexual humoiJr with the people who use it with me. I'll flirt back with those who flirt with me, if it's harmless. We draw the line on what is inappropriate, according to our judgment, mine and the others. Everybody at QSMHC flirts in a harmless way That's part of the atmosphere in that place where you see female and male patients stripping, masturbating and fornicating All kinds of funny things happen there. I use my humour to deal with it. That's part of my job as a security officer" When asked to explain what he means bv "fllrtina" he answered "It's harmless joking around between two people, or in a group Joking actions do not hurt ( anyone. It means making people feel good. It is not being rude. It is not put downs. It is not degrading or humiliating someone. It is not being vicious. The humoLir relieves the tensions of people in the place, my own and the tensions of others. It has to.make you feel good about it, or it can't be right If someone tells me a joke offended them, I'll never use it again" He explalned that he uses the word fltrting to mean the same as joking, although he agreed fltrt1ng' could mean more than that, tt could carry 'elements of sexual innuendo' When asked how he knows where to draw the Itne, he replled he knows what's improper from hts upbringing and from getting to know hts frtends as tndtvtduals, what they Itke and what they don't Everybody at QSMHC, wtth few except1ons, partlcipate in sexual joking, more or less W1th some, like Cruickshank, he would joke very Ilttle, because "it is not in her character to , "- . 87 Joke very much, so we talk mostly about everyday llfe" Wtth a few nurses there would be no sexual Joking They are his good frtends, he satd, but he felt that Jok1ng with them sexually would feel llke joking wlth hlS mother He stated that he was astute enough to know wtth whom he could and could not engage in sexual banter and where to draw the line, how far he could go wtthout hurttng or upsetttng them He explained that the basts for hlS declslons was his personal knowledge of the lndlviduals Wh1Ch he acqulred 1n hts working relattonshlps with them over a perlod of time A person could be a very good friend, yet he would not joke with them, or he would joke only ln limtted ways, dependtng on how he Judged thetr character Over time, he learned from them thetr ltkes and dislikes "When you work together a whlle, you get to know what ktnd of persons they are from the everyday contacts wlth them You learn about them from thetr reacttons to thlngs " Santos stated he engaged in sexual banter wtth Crutckshankbecause she engaged in it with him They did so together He satd she was quiet and passive wlth certatn people, but once she got to know him she was not shy with htm She opened up and they talked about many things "We really dldn't Joke all the time We talked about a lot of thtngs And don't forget we weren't often together, only about two shtfts a month, and even then we had our Jobs to do We couldn't Stt around and talk all the time Bantenng was only a mtnor part of our conversatlons Most of the time we were together we talked about work, about the news, and many other things I really didn't have a lot of contact with her" In the period she worked in Admitting, he said, there would be 2 shtfts per month, up to 4 at the most in some months, when they would be on the same shtfts She only worked n1ghts and he was on ratatkon At the reqI,Jest of Employer's counsel he estimated that about 20% of his time with her tnvolved joktng and only about 1% was sexual Joking Santos acknowledged Crutckshank once said in a joke "this could be sexual harassment" He said that was when he ~nswered "Yes, but who is harasstng who? She laughed That was the end of it She said it only once It was satd as a joke " ---------- - - --- ------ -~-- - - - --- -- -~------- -~ ~ . . 88 When asked why he thought Crutckshank would lte tn the eVldence she gave us, he answered "because it had come to this stage and she was too scared to say thts thtng has gone far enough" Santos was then asked to explatn why Cruickshank requested her head nurse to arrange for them to work dlfferent shifts, why she no longer wanted to work with him He replied that he dld not know why because he never gave her a problem "You should ask her I can only glve you my vers1on, that she was embarrassed by that tnctdent {where the duty doctor saw her gettlng up off the floor} because tt appeared unprofesstonal and he mtght have concluded something improper And of course, f~ everything she inltiated after that became even more embarrassing to her" After that inctdent, he told her "no more banter" because of the way she acted runn1ng to the duty doctor ln "a weird, bazaar way" He thought she told the doctor somethtng dtfferent than what actually happened between them "I no lonaer felt comfortable with her. That was the last t1me there was any ioklna between us. I stoooed. not because she had asked me to stoo " He could not see how she could possibly see a different context to that incident than what really happened "We were joking and fooling around ;She knew that at the ttme as much as me " Santos was asked to expla1n why Cruickshank would have waited about three months after the inctdent before asking her head nurse for the shift changes ( '.. He replied that after the 1nc1dent, until October 9th, they could not have worked more than three shifts together They no longer joked when they saw each other Their relationshtp was changed There was no joking around "It could be she no longer felt comfortable with me For me, the trust was gone I no longer wanted to joke wtth her" He said that three months after the tnctdent, thelr relationshtp was no longer the same They hardly had any dealings wlth each other He was away on vacation in August His view is she felt uncomfortable and awkward with him because their relationship had changed and he could no longer joke with her "And I guess she didn't want to work around me, so that's when she went to see Vita about changing our shifts, to make things more comfortable for both of us, I would think" { '- . I 89 Santos repeated ln cross examtnatlon that Crulckshank never told htm that any of his comments were rude. unwelcome or offenstve. neither bv her word nor by her act tons. When asked for hts views on certa1n sexual comments WhlCh he lS alleged to have made to Crutckshank, he replled he could not do so wtthout knowlng the context ln which the comment was supposed to have been satd "Tlme tS lmportant, when and where were the comments made? And It IS tmportant for me to know what were the ctrcumstances tn order for me to understand and explaln the comment " When asked tf Crutckshank ever satd no to hts advances, he promptly repl1ed, "I never made any personal advqnce " When asked for examples of sexual bantertng wlth Crutckshank, Santos responded that the bantertng was not always inItlated by hlm He gave as an example an occaston when she asked htm how often he had sex and what were hlS preferences He said he answered these questions without asking her the same quest tons He did not take this sort of bantertng to mean she was sexually interested in him, nor would she have taken his banterlng in that way Santos conflrmed agaln tn cross examinatton that he had parttctpated tn a discussion on ltngerie which Robtn Hart descrIbed, and he again expressed hts , confldence that there was nothing wrong with what he satd ln the context of that situation "That was the only tlme I can recall dtscusstng Itngerle w1th her " Santos said he was conftdent that he would not say "you need to get laid" to Cruickshank rfifth alleaation1, or to any female, because tt would be too crude or offenstve to say that to most of the women he knows, and he certatnly would not say that to Cruickshank However, he was uncertain whether he discussed nicknames for a pents tn the presence of Crutckshank, but even tf he had done so, he was confIdent it would not have been offensive or improper because it would be done only in the context of an approprtate sttuation When he engaged tn such d1scussions, the people present are only those who ln hlS judgment would not be hurt by his humour ~ . 90 Counsel asked Santos why he thought tt was too offenSIve and crude to tell a woman 'you need to get latd', and not so if he tells her the ntcknames for a pems He explatned that ln hlS Vlew such a remark to a woman lS not a Joke when it is personally offensive, but d1Scusslons and joklng about sex and the pen1S lS everywhere You hear lt all the time in the mOVtes, on TV and at work Even so, he would not make his Jokes about the penlS tn the presence of anyone who would be made uncomfortable by it Santos was then asked to express htSOplnlOn on which of two COO1l1ents would be f~ Ii._,. more offenstve to a female whom he does not know He replied "I don't have an oplntOn because I do not talk about those thIngs to people I do not know" He went on to explatn that the nature and extent of hts sexual Joktng wtth women at QSMHC depended on how well he knew them, as well as on his personal Judgment, based on hts experience wtth each woman, on what would and would not be offensive and unacceptable to them He Joked in a different manner wtth d1fferent people, based on their 1ndlV1dual d1fferences 1n the1r sense of humour, on what they found to be amusing and acceptable Jokes ranged on a scale from the innocuous to the extreme He was asked to rank some examples on a scale of 1 to 10 He was also asked to rank Cruickshank and others on a similar scale of thetr acceptability of such humour ( -" The clay pents joke tn hts Judgment ranked near the high end of that scale, and he would use tt only wIth people who ranked hIgh In theIr levels of acceptabtlity for such Jok1ng In hts sexual joking and bantering with Cruickshank, in order not to offend her, he exercised his judgment on what he believed she would find offensive He ranked Cruickshank at 2 Santos was confident that Cruickshank was the kind of person who would have told htm if she was offended by any of his comments, but she never did "My Judgment on where to draw the line depends on what she says to me when we are joktng around That's how I draw the bantering llne wtth anybody I do not engage In banter1ng unless tt lS mutual" f \ "'-. ~ 91 In explainlng further how he draws the line, he said he would not have used the clay pen1S Joke wtth Cruickshank because he ranked her at a 2, too low level of acceptablllty for such sexual Joklng However, he could use that klnd of Joke wtth hts good friend Debble whom he ranked as a 10, h1S partner Kerr whom he ranked also at a 10, and Donnelly whom ranked as "maybe a 7" He ranked htmself at the 10 level Counsel ask~d lf tt was possible for him to say somethlng offenstve and not realtze tt until it tS out and he replied, that it could happen, but he could not recall thatlt ever happened to him When asked about Donnelly's evtdence that she was "shocked and embarrassed" by his gag gIft to Debbie, he responded "Yes she saId she was embarrassed, but certatnly not dtsgusted " She never spoke to htm about tt He only saw her laugh "My impresslon was she enjoyed the Joke and there was no non-verbal display of shock or embarrassment.. Everybody there had a good laugh I wouldn't show it to anyone who m1ght ftnd tt offenstve " , some who saw tt may have been He described the reactions of those present surprised or startled by it, but none indicated it was an unacceptable Joke Although ln our Judgment lt could be seen as a somewhat gross or tndecent joke, in his judgment no one showed any indication that' the gag Joke vexed them or that tt exceeded their limits of acceptability for sexually expltC1t humour The evtdence of witnesses do not contradtct his judgment of the event Regardtng pictures of themselves in topless bathing SUtts which .~ere brought back from a vacation by Debbte and Dr Doumanl and which were shown by Debble to other employees in the Admitting Department, Santos was asked to express his vtews on the acceptability or appropriateness of dtsplaytng thoseplctures of female breasts among the employees He replied that there were only two people at QSMHC whom Debbie would not have shown them to, and 1t was only because she dld not llke them It had nothing to do with the appropriateness of showing topless pictures He refused to say if Cruickshank was one of the two because he thought "ttwould be unfalr to Debbte and Kathy" However, '" . 1. 92 based on hlS own knowledge of Crulckshank, he would not have shown her those ptctures On the thtrd alleaatton, Santos was asked tf he thought lt would have been offensive to tell Cruickshank 'I don't want to marry you, and that I Just wanted to have fun' He replied that tt would depend on the circumstances and sp1r1t in WhlCh lt was said "It would have been offenstve if it meant I wanted to sleep wtth her If I did say tt, I could not have meant I wanted to sleep w1th her because that tS not the kind of relationship I had with her We .'""" (J had a working re lattonshtp, not a prt vate re lattonshtp " Mr O'Toole asked Santos -to expla1n the dt fference He answered "I had a worktng relationshtp wtth her because the only tlme I would see her was at work I never asked her for a date I never saw her after work We dtdn't soctaltze outstde work We never went to the same parties Our relationshlP ended when our work ended My prtvate relationshtps are with the people I socialize wtth outside of work, they are my frlends at work who are also my frlends outside, after working hours " Santos dented agaln ever belng. in the bed and sink room with Cruickshank He was emphattc that the two alleged tncidents In that room never happened rseventh and elahth alleaattons1 ( Regarding the basement tncident rthe fourth alleaation1 Santos said he was absolutely certain he had only one escort w1th her and that Crutckshank was wrong tn saying he escorted her on two occasions He could not recall when that escort had occurred, but he said the Employer should be able to hnd a record of it in one of his daily reports He did recall, however, that the escort on that occaSlon was routine in every respect except that it was wtth Cruickshank, WhlCh was not routine He usually escorted the clerk or the nurse coordinator on a file retrleval and rarely a nurse He recalled also that she was very friendly toward him on that occasion Santos insisted that she falsely accused him of assaulting her "She was wrong in saying that the e~cort was to Unit 4 She was sure it was to Untt 4 until someone told her that it was not true" C_ ~ ~ 93 Santos sald he was certaln that he dld not tell the Investlgator anythtng d1fferent than what he told us in hlS testtmony The tnvesttgator's notes, he said, "were not verbattm what I told him and could easily be mtslnterpreted" He sald they were tncomplete, inaccurate, and he told Yetman so "If there 1S an apparent dlfference, it is because he d1dn't write down everythlng I said, and there could be several ways of lnterpreting hlS brlef notes " [Yetman's eVldence conf1rmed that he assured Santos he would not mlStnterpret what Santos had told him, and that his notes had to be explatned Yetman had difficulty explain1ng to us hlS own notes on his intervlews with Santos, when he testifted, partly because he did not record the quest tons and partly because he d1d not fully record Santos's answers] Santos sa1d he thought the Admttttng room inctdent of July 19th [tenth alleaatlon1 happened between 11 10 and 11 50 pm, although it may have been as late as 1 00 am [the time indicated tn Yetman's notesJ He was alone wlth Cruickshank in Admitting at the t1me {Cruickshank's evidence was that lt happened after Cyfko's round, whtch was between 12 30 and 1 00 am Dr Logan testtfted he had arrlved to see Cruickshank getttng off the floor "at about 11 30 pm"} c Santos agreed that sexual banter preceded the lncident He denied he made a comment on the size of her breast and confirmed his earlier statement that she had told him he was all talk He d1d not agree with Crutckshank's evtdence that he was sitting at the computer desk because by that time he had moved to the bookshelf where he was standlng as she walked toward the door He aareed essentially wlth her evidence that he had turned around behind her and out his hands on her waist [He had said 'hips', but hts gestures indicated he meant her waist, immediately above her hips J He said that this was prompted by her comment about him being all talk He thought shedtd not antlCtpate this reactlon and was surprised by it He agreed also with the suggest10n of Employer's counsel that the event was preceded by sexual banter He explalned that he was standing at the bookshelf only about SlX inches from - - - 1 J 94 her, wlth hlS back toward her back, when she sald 'you're all talk', whereupon he turned around saytng 'I'm all talk am I?', placed h1S hands on her watst, and pulled her towards htm At thlS pOtnt, he was faclng her back, the door was beh1nd hlm, the book shelf was at his irrmed1ate left, and the desk was at his rlght She reacted with surprtse and seemed startled He dld not hold her very long before he let go, she lost her balance, stumbled very suddenly, and felt to the floor He sald it all happened very quickly When asked why she stumbled and fell, he expla1ned that although he dtd not have "much of a grtp on her" she was surprlsed by tt His theory was that she ?, ( " very Itkely thought he was holding her more ttghtly than he actually dtd, just at the lnstant when she was twistlng to break away from him He sald she was startled when she broke away and fell forward He accepted counsel's suggestion that he would have had no difflculty holdlng her more securely and for a longer pertod tf he had chosen to do so He reJected counsel's suggestlon that he let go because he saw the duty doctor coming before Cru1ckshank saw htm He said he could not have seen htm com1ng because hts -face was turned away from the window all through the event, unttl Cruickshank was almost back on her feet He offered no explanation why he let her go as suddenly as he had taken hold of her Counsel asked Santos tf he had ever touched her before He replled thls was the first ttme he ever surprised her by touchtng her He confirmed he never (" dated her, never soclalized wtth her outside of work, and he never touched her, except they mtght have hugged each other when they celebrated New Year's Eve or Christmas Eve at work He satd that the way he touched her waist was not inapproprtate, "not in the way I touched her and not tn those ctrcumstances" He agreed that "she did not lnvite him in any way to touch her", but nevertheless he believed tt was not inappropr1ate in those ctrcumstances because tt was a spontaneous action, a light hearted touch, which could not have been interpreted as a sexual come-on tn the context of the kind of relattonship he had with her He satd hefe It confident, at the ttme, t n hl s frtendship with Crutckshank that she would understand and accept htm as a {.. \-- ~ ~ frtend who was Just Joklng around ln hts usual way, wtthout any sexual tntenttons Santos dented he could posstbly have seen Dr Logan through the window before Crulckshank saw htm He could not have seen Dr Logan from hlS posltlon at the door unt1l he was dtrectly outside the glass partitton That was because of the Jog ln the partltlon wall Before she fell both of them had thelr backs toward the door as well as the window, which is to the left of the door and above the table He could not see hlm while he was standlng over her, wlth hlS back to the wtndow, offering to asstst her She could not have seen him unttl she was getttng up, when she turned her head around toward the wlndow Santos was not re-examlned Procedural Problems On several occasions durtng the proceedtngs Mr Coleman complatned about the unfalr manner tn whtch the Employer was presentlng its case, ln that much of the eVldence we heard from many wltness, before hearlng the compla1nant, may ~ ) prove trrelevant once we ult1mately get to hear the compla1nant's testimony Also, they could not be cross-examlned on matters artsing from the grlevor's I evtdence before that evidence has been heard He claimed that the delay ln productng the complainant's eVldence, as well as other crlttcal eVldence ~ requtred to establish the parttculars of just cause for the d1smlssal, prolongs the heartngs unnecessarlly and serlously affects hlS ablllty to prepare a proper defense in a timely manner Unton Counsel protested the / Employer's declared tntenttons to postpone producing the complatnant as wttness unttl the very end We expressed our empathy for Mr Coleman's concerns while assurtng him that the opportunities for a proper defense certainly wtll not be dented At the same ttme, we repeatedly expressed our support for Ms Qutck's assertions of her rlghts and responsibilities for the conduct of the Employer's case, as she " . 96 ~ -~ sees ftt, in the ctrcumstances of thlS sexual harassment case, to present \, wttnesses for the Employer tn the manner and sequence whtch she chooses, unttl that case tS closed, at which tlme the parallel responslbtlltles and rlghts for the presentation of the defense wlllreside with Unton counsel Mr Seymour, on more than one occaston, expressed strongly hts support for Mr Coleman's concerns, stattng that Ms Quick was wasttng a lot of valuable hearlng ttme on matters that are not tn content ton and that are not relevant to the disputed lssues In addition, Mr Seymour often and vtgorously C'~ \ expressed hts impatience wtth the continutng delays in getting to hear the .\ Employer's evtdence on particulars of the complainant agatnst the grtevor and ! \~: the causes for hts dtsmtssal His crtticisms obvtously annoyed Ms QUlck, who on each such occaston asserted her rtghts to determine the manner tn which the ~ Employer's case 15 presented On each occasion we acknowledged that these are ~ts as caunsel{t THE SUBMISSIONS OF 'COUNSE L . Thts has been a complex and unusual case in many ways As the case unfolded (, we formulated formal judgments on two issues, the motlon for non-sutt and the motion for re-open1ng, on which we have rendered decisions and reserved the reasons to be given in our f1nal award In the course of prepartng the dectstons on the motions we had to examine all the evidence in the Employer's case WhlCh by then had been closed In doing so we became aware of certaln questlons and concerns which we put to counsel so that each would have an equal opportunity to address them in their respective arguments , On auestions of law, we see the issues to be comparattvely uncomplicated We all agree that sexual harassment is prohibited by law, by both the Human R1ghts Code and the collecttve agreement, as well as by the Employer's policy And sexual harassment ts defined in exactly the same way by the Code, the agreement, and the policy "Harassment means enaaaina tn a course of vexatious t_ 97 comment or conduct that is known or ouaht reasonablv to be known to be unwelcome" However, there may be some quest tons on how thts deflntttOn lS to be lnterpreted, as lt relates to the partlcular 1ssues we have heard from the witnesses in thts case, such as where to draw the llne between 10k1na or oranktna and harassment We tnvtted counsel to provtde us gutdance on such questions of law ln thelr flnal arguments At the same tlme we 1nd1cated our lncltnatton to the vtew that what makes thlS case parttcularly dtfflcult are the problems related to 1ssues on flndlnas of , fact We brought to the attention of counsel some parttcular concerns tn thts area Cases uoon WhlCh the Emplover rehes tn ltS final araument A number of cases were referred to tn support of the Employer's submlSSton Ontar1o (Human Riahts Comm.) and Bell v. Ladas (1980) 1 C H R R D 11383 {O B Shlme} Lvnch v. Theodorakakos (1992) 16 C H R R D Ii {B C Human Rights Counctl} Ontarlo (Human R1ahts (amm.) and Hall v. Sonao Canada (1989) 10 C H R R D 143847 {W Gunther Plaut} McCarthv v L.C.B.O. (1977) G S B 66/77 {K P Swan} \ Re C. N. R . and C.B.R.T.& G.W. (1988) 1 LAC (4th), 183 {M G Plcher} Re Roval Towers Hotel and Hotel Emolovees Umon Loc. 40 (1992) 32 LAC (4th), 264, {R B Blasina, Be} Re Macdonalds Consolldated Ltd and R.W.D.S.U.. Loc 580 (1990) 14 LAC (4th) 173 {C Mc Kee, B C } Re Pttman Mfa. Co and C.A.W.. Loc. 303 (1988) 32 LAC (3d), 362, {K A Hinnegan} Re Extendicare Ltd and Ontar10 Nurses Assoc. (1981) 3L A C (3d) 243 {G W Adams} Re Canadian Lukens Ltd and U.S.W. (1976) 12 LAC (2d) 439 {S SChl ff} Gulf Canada Products v. Griff1ths (1983) 3 C C E L 139 {adjudtcation under Canada labour Code, Rose, adJud } ************ '- . 98 Counsel for the Employer submtts the legal deflnttlon of sexual harassment tnvolves a dual test f1rst, dld the grtevor know that he was "engagtng tn a course of vexattous comment or conduct" that ts unwelcome, and secondly. ought he reasonably to have known that he was dotng so Thts, she submtts, evokes the "reasonable man" test whtch asks "would a reasonable oerson lnthe same C1rcumstances have known that the behavtour was unwelcome". , We agree that the grievor is obligated to conduct himself as a reasonable Ii.....~ person, and as such, he must know where to draw the llne between harassment f '\"~, and humour, between harming and Joktng, between hurting and bantenng We agree also that the line tS drawn when the Joktng becomes hurtful, hum1ltatlng I and demeantng to someone, and yet perststs even after such harmful consequences are obvious to a reasonable person, thereby creatlng a destructlve psychologtcal and emotional work enV1ronment As descrtbed by arbitrator Shime in Bell v. Ladas "Sexual harassment tS a demeaning practtce, one that constltutes a profound affront to the dlgntty of the employees forced to endure it " ******************** We agree with Employer's counsel that the grievor was descrtbed by hlmself and (~ many of the Employer's wttnesses as a very popular person at the QSMHC, wlth a reputatlon as a joker who "felt comfortable engaging 1n the entire gamut of mtld to explictt sexual joking", and that the complainant was descr1bed as a "reserved, quiet and private person who was not inclined to discuss her personal It fe" We would add that although she was not as popular as Santos and was not percetved asa "Joktng" type of person, she was no less Itked and respected by her work assoc1ates By no means was she regarded as a humourless prude by those who worked wtth her We reJect the Employer's submlSSton that Santos did not have a friendly work- place relattonship wtth Crutckshank Her own evidence supports Santos's evtdence that they engaged tn dlScusslons at work on a wlde range of subJects r -,,~ .. '. 99 Crutckshank testtfied that they had frtendly discusslons most of the tlme, except for a few occasions when she was offended by or dtsltked hts comments However, because she never told him otherwlse, we belteve Santos's clOlm that he had every reason to believe h1S sexual Joking was acceptable ln the friendly relatlonsh1p he had with her Crutckshank's evidence tndtcates she was aware of Santos's popularity w1th thelr work assoClates and that they enjoyed hlS sexual joking, even those pranks and remarks which she may have regarded as crude or ln bad taste She anticlpated that they would not support a complaint agatnst h1S sexual Jokes Thts vtew tS corroborated by Hart who testtfted that when she had d1scussed Santos's sexual joking with Crulckshank they concluded that lt dld not amount to sexual harassment Hart testified also that Cru1ckshank once commented to her alone that one of hlS remarks was not showing her respect, but she never heard Crulckshank say to Santos or anyone else that she felt hurt or harassed by hlS comments, or anything to that effect Helen Geraldt testified she had the impress ton that Cruickshank dld not ltke Santos's Joking, but she never heard Cruickshank say so She once heard her say to htm, "oh you and your jokes" Also, Terry Taylor testlfied that in July, 1991, he heard Crutckshank say she was glad she dldn't ( have to put up with Santos's jokes for the balance of her shtft, but he heard nothing more than that from e1ther of them Among the Employer's wttnesses, persons who had worked the same ntght shtfts wtth both the grievor and the complainant, were Fatima Raza, Helen Gerardi, Vtta Clarke, Margaret Walker, Mtchele Wharton, and Johanna Donnelly, none of whom had anything crttical to say about either Santos or Cruickshank Both were liked and respected None of the witnesses said they had ever personally regarded any of Santos's sexual banterlng and joking as sexual harassment, nor did any of the witnesses testify that they ever heard Crutckshank complain about his sexual joking and bantertng or that she felt harassed by htm ~- ~~ - -- --~- - - -- - ~ ----- ------ ._.~ ---- ...~ . 100 Several of the Employer's wltnesses corroborated Santos's evtdence that sexual bantenng and Joktng between nurses and securtty offtcers are commonplace at Queen St Mental Health Centre They testifled they had often observed Santos parttctpate wtth others in such sexual banter, joking, teaslng and innuendo, but none descrtbed his participatton as harassing, vexing or unwanted Although Donnelly testified she was "shocked and embarrassed" by Santos's gag pen1S gift to his friend Debble, as a very crude Joke, there lS nothtng tn her evidence to indtcate she felt harassed by Santos whom she descr1bed as "nIce, pleasant and outgolng" r\ We agree with the Employer's submlSStOn that Crutckshank was the type of person who would not make crude or offensIve comments, sexual or otherW1se However, our judgment tS that she was also not the type of person who would never make, ltsten to, or accept inoffensIve comments of a sexual nature She was not a humourless prude We reject the Employer's submission that Cruickshank was "stmply not the type of person to engage tn sexual discusstons regardless of her comfort level" We prefer Santos's evidence, corroborated by the Employer's witnesses, that sexual joktng and bantering was commonplace in the workplace and helped staff to cope with the tensions of working with difficult mental pattents, and that every person on staff had a dtfferent sense of humour and a different level of comfort, appreciation, tolerance or C' acceptability for sexual humour, which ranged from very tnoffenstve to extremely gross and offenstve Just as "one person's meat tS another person's poison", it is appropriate to conclude that one oerson's sexual humour is another oerson's sexual harassment How then tS a reasonable oerson, such as Santos, to know where to draw the line in his sexual joking with a person such as Cruickshank? Santos provtded a reasonable explanation He adjusts his joking behaviour with a person according to the knowledge he has gatned through his observations of the person's reactions to different situations while working and assoctating with that person over time Thus, on a scale of 0 to 10, he assessed some senior nurses {who were like his mother} at the 0 level, Crutckshank as a 2, his friends Debby and Steve at the 10 level, and others in between ~ ~ 101 Santos testif1ed that hts sexual joktng and bantertng wlth Crulckshank was such as he had Judged to be approprtate to the frtendly workplace relatlonshlp they had developed, based on the feedback he had recelved from her as they got to know more about each other's ltkes and dtslikes We belteve the reasonable oerson would dlscover the Itne between sexual humour and sexual harassment 1n much the same way as Santos dtd, through personal observatlons of reactlons ln the evolvement of mutuallty ln an inter-personal relatlonshlp over ttme, and adjusttng one's conduct accordingly Such feedbacks are essentlal to enable the development of mutuality and balance tn all productlve and satlsfYlng human relattons whether between work associates, social friends or work frlends We accept Santos's characterization of his relatlonshlp wlth Crutckshank as "work frtends" We ftnd credtble Santos's eVldence that Crulckshank partlcipated with h1m in bantertng dtSCUsslons of a sexual nature However, we believe she did so ln a very qutet, low-key and passtve manner, tn contrast to his more active, out-going and asserttve style In the evtdence of Hart and Cruickshank on thetr discusslons wtth Santos lt lS very clear that neither one of them had said or done anythtng to let Santos know that his comments were unwanted or harasstng Hart's testtmony supports Crutckshank's own testimony that her responses to Santos's comments and antlcs were usually silence or a simple no From Cruickshank's own testlmony In the flrst incldent, she slmply called htm a pervert and walked away, tn the second, she Just sOld no, ln the thtrd, she did not respond at all because she thought hts remarks .were silly and stuptd, in the fourth, she told htm he could lose hts job, in the flfth, she said nothlng to h1m at all, in the sixth, her reply was no, after the seventh and eighth tncidents she told htm she would tell his flance if he did not stop such pranks, on the ntnth tnctdent, she did not tell us what was her reply, and after the tenth tncident her conduct was such as to reassure Santos that hts antics did not affect their frtendshtp, and he heard no protest or complaint from her about hts conduct until several months later Crulckshank testlfled she never told Santos that what he was dOlna was sexual harassment, and the only time they discussed the subject was when she handed ~: .,' 102 htm an arttcle on sexual harassment in a Unton paper, WhlCh he treated as a joke It was establtshed in cross-examtnation that the arttcle she had shown him was published after Santos was suspended There is nothtng in the eVldence to support the Employer's submtssion that Crutckshank had informed Santos that his sexual comments were harassing or unwanted Santos admitted engaglng tn sexual joking and banter wlth Cru1ckshank We have no reason, however, to reJect the Unlon's submisslon that the sexual comments and banter were harmless, non-vtolent, frtendly, and mutually acceptable The &"'"' t evtdence clearly establishes that thetr relattonship was friendly and mutual, and not sexual, and was conftned to the workplace Crulckshank acknowledgep that Santos never made any effort to soc1allze wtth her outstde the workplace, never called her at home, and never suggested they go somewhere together after work He might have been teaslng, klddtng or hoaxlng her by the comments she alleged, but she testtfied that she dtd not thlnk he was She desclbed one remark as "silly and stuptd" {thtrd allegatton} and another as "not approprtate" {fifth allegation} She descrtbed his behavlour tn some incidents {second, thtrd, sixth and ninth} as "serious", Wtthout explatntng what she thought he was serious about She satd she understood his remark ln the ninth tnctdent meant he wanted phystcal contact ( wlth her Wtthout saytng so explicttly, Cruickshank implled that she thought Santos's comments expressed a deslre to have a sexual relationshtp wtth her However, even tf that had been her honest impression at the ttme, and if she felt hts sexual interests were unwanted, there is nothing tn Cruickshank's testimony to suggest that she ever told Santos, by her words or actlons, that those sexual SOltCltattOns or advances were unwanted, or that she felt personally hurt or threatened by anything he had sald or done Her own testlmony is that the onlv time she ever asked him to stoo doina or saVlna whatever he was dOlna to dtsolease her was durtna the Julv. 1991 Admltttna Room lnCldent Her own evtdence is that he had let her go promptly, when she asked htm to stop, so promptly that she was surprlsed by it and she stumbled She testified that was the last tnctdent, and it was some three months before ( -~. .;: '. 103 she submttted her complaInt Very clearly, once he was asked to stop hlS sexual Joktng and bantering he did so very promptly and permanently It can not be concluded, therefore, that he persisted In the pursu1t of a course of conduct that was unwanted On the tssue of Crutckshank's silence and her delay in maktng a complalnt against Santos, Ms QUlck urges the Board to appreclate the abuse of power and the intimidation whtch often is tnherent in sexual harassment She refers us to the CNR case, [p 199J where arbitrator M G Plcher stated "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 and the possibility of charges of lying for ulterior motives or having provoked the male employee by conduct that invited sexual advances. " In our Judgment, however, the condttions ctted above tn the CNR case are not present in the circumstances of th1S case, and can not explain Crutckshank's sllence We had no evtdence of "overt sexual harassment" such as a verbal or physical attack that was accompanied by violence or a threat of vlolence, or any such traumattZlng experience WhlCh might produce a reactton of silence No vlolence or threat of violence was alleged by the complainant, nor did she clalm a fear of reprtsal There is no indication that the complatnant feared the grievor's power in any way On the contrary, she was tn a positton of somewhat greater power over him on the job The evidence tS that the securtty guard lS requtred to attend tn the Admitttng Department at the request of the nlght nurse, and to secure doors and patIents, and to otherwtse provlde security for her and the night clerk, on her instructions We agree with the Employer's submission that silence could be a natural consequence of a woman's {or a man's} fear of embarrassment at the thought of publictzing an unpleasant and humiltating experience However, the eVldence does not support the argument that Crutckshank's sllence can be explatned by a fear of embarrassment In our judgment, based on the eVldence, her strength of character is such that she can not be easily intimidated or deterred from i ~ ~ ~ 104 taktng effective, prompt and approprlate actlon agalnst what she honestly belteves to be improper conduct She was not ttmorous or reluctant when her professional judgment led her promptly to refuse a doctor's tnstruction to put a patient ln restraints Her delay in complaining about Santos's conduct 1S not explained by her fears Rather, we ftnd that it was her clear and consctous dectsion not to report the alleged inctdents and that the delays were the result of her tntelligent, purposeful and dellberate Judgment There was nothlng but her own lndependent judgment to deter her from maktng her complatnt known to Santos and the Employer earlier rather than later r Crutckshank's own explanation of her silence is that she was aware of Santos's popularity and that her peers dtd not share her distaste or disllke for hts humour, his sexual banterlng, clowning and teasing jokes She real1zed that her peers were amused by anttcs whtch she found distasteful She understood that they regarded Santos's sexual comments as joking, teasing and clownlng, and not as sexual harassment She was deterred by her belief that a complalnt agalnst hlS 9ntics would be disapproved by her peers because they did not regard hlS conduct as harassing Eventually, some time after feeling the\embarrassment of betng seen by the duty doctor gettlng off the floor, she chose to get away from Santos's Joklng ( and bantering by asking her head nurse to arrange for a change in Santos's shifts But that tS not what she got Her request resulted in the Employer chargtng Santos wtth sexual harassment It resulted also in hts suspenSton and his dismissal which she clearly and definttely did not want She -opposed the Employer's dectsion to dismtss Santos As we have already noted above, there was a constderable delay between the time she requested the Shlft change and the subsequent investigation of the charge against Santos, during which time she felt pressured tnto filing a formal complaint of sexual harassment There was a further substantial and unexplained delay between the investigation and the dismtssal Employer's counsel acknowledges that followlng the Admitting room tncident Cruickshank "dld nothing for a period of several months" In October, 1991, l '. 105 she approached her superVlsor, Ms Vt ta Clarke After maklng some vague references to sexual harassment, she asked to be scheduled only on Shlfts when Santos was not on duty Ms Clarke told her that would be dlfflcult and that she had to put her request in wrtting This resulted tn EXHIBIT 8 Counsel J noted explicitly that Crulckshank did not ask for Santos "to be dtSClpllned tn any way" whtch tndtcated there was no maltce or vtndicttveness on her part Employer's counsel submlts that Crulckshank, "may well have nalvely thought that havtng set out her request, with the reasons, management would slmply allow the request and that would be the end of it But that tS not somethlng a responsible manager would or tS permltted to do under the law The Employer has a respOnStblltty to deal with inctdents of sexual harassment when they are brought to hts or her attentton " Ms Quick points out that at about the ttme Crulckshank had submltted her letter "the government's sexual harassment poltcy was belng revtsed and so new opttons were becomlng available" Cruickshank's failures to inform Santos that his sexual jokes, pranks, and banter were unwanted reduce the credibility of the Employer's submisslon that they comprised a course of harasstng conduct She did not regard the tncldents sertous enough to report at the tlme they had happened Her silence enhances the credtbillty of the Union's submission that they were acceptable humorous expresstons which were made wtthin the context of a friendly workplace relatlonshtp The lncidents which are alleged to have taken place before July, 1991, have little probatlve value ON ISSUES OF CREDIBILITY We accept the Union's submission that "the trter of fact should be cauttous about judglng the credibility of a witness solely on the basis of personal demeanour or appearance of sincerity in that Wttnesses style of giving evtdence " Farvna v. Chornv supra We agree that on first impression Cruickshank presented herself as a very credible witness who was articulate and gave her evidence in a reserved but direct manner, and that Santos left a - ~ - ". ~. 106 less favourable lmpreSSlon tn that he often gave exceSSlVe descnptions and strayed from givtng dtrect answers to questtons put by counsel We agree also that when the substance of thelr evidence lS examlned the comparison of credtbtltty tS stgntftcantly less favourable to Cruickshank The contrast between Crulckshank's style of present1ng her eVldence and the substance of that eVldence is revealed in her testlmony regardtng her asslgnment to full-ttme work tn the Admttttng Department On examtnatton, Crulckshank testifled that she commenced full-tlme hours ln that department tn r '.. the summer of 1988 This testimony was given ln a very credtble manner On cross examlnation, she reJected the suggest ton that she dtd not commence full- tlme work ln Admttttng unt1l a year later, and she dtd so tn a convtnctng manner She agaln reJected the suggestlon when presented wlth a performance appralsal (Exhtbtt 19) that tdenttfted the date of her full-ttme assignment as May, 1989, offering the explanatton that she commenced worklng full-ttme hours there at the earlier date, but was not permanently asslgned full-tlme hours unt t 1 May, 1989 The staff attendance record (Exhibtt 22) which we recetved later, after her cross examinat10n, established clearly that she commenced full-time hours tn Admitting tn the May, 1989, and not tn the summer of 1988 Cruickshank's evidence regarding her work assignment illustrates that her evtdence may not be as rellable as her style of presenting her evtdence mtght (.;. lead us to belteve Cruickshank's recollections of the incidents prtor to July, 1991, were vague and uncertaln She could not trust her own memory on incldents that happened a few years ago For the inctdents before July, 1991, Crutckshank dld not clearly recall the ttme and place, nor did she provide sufficient clear and conslstent evidence on thelr circumstances and contexts, to establish that they ln fact happened, or, to justtfy a conclusion that Santos's comments were harasstng rather than joking, ktddtng or teasing The grtevor tS irreparably preJudiced by his inability to respond to vague allegations regardtng such long-ago tnctdents that even the complatnant cannot recall when or where, or the context or circumstances in WhlCh the alleged comments were made We gi.ve little wetght to the Employer's evtdence on such vague allegations ( "'-'-' '. 107 Crutckshank's evtdence on her alleged lncldents was not corroborated by Hart or any of the other witnesses wtth whom she had. worked Not only could she not recall the time, place, and Clrcumstances of tnctdents prtor to the one ln the Admtttlng Room, but also she was unable to recall whtch, lf any, of her colleagues had been present tn most of those tncidents Cruickshank's eVldence was that others were present tn the flrst alleged tnctdent but she could not identlfy them She could not recall if anyone was present at the second one She satd she dtd not tell anyone about the thlrd one, so presumably no one was present She testlfied Fatlma Raza worked wlth her the ntght of the fourth lnctdent, but there is nothtng tn Raza's evtdence to explatn why Crulckshank went to look for a file that ntght, when it was Raza's normal duty to do so She said Steve Kerr and a doctor were present tn the ftfth tnctdent, but the Employer dld not call them as wltnesses to corroborate Crulckshank's eVldence Regarding the stxth tnctdent, her evtdence was that others were not present Her evtdence that no one was present durtng the seventh and elahth tncldents was contradtcted tn cross-examtnation when she conftrmed there was a reltef nurse present on one of those occastons However, we recetved no corroborating evtdence She dtd not say whether anyone was present tn the nlnth tncldent WhlCh she satd on examtnat'lon took place after her conversatlon wtth Dr Doumant and whtch she contradicted on cross-examtnation On the tenth inctdent, the only witness was Dr Logan H1S evidence was not very helpful He had not seen what happened before hts arrlval when he saw her gett1ng up from the floor as he entered the room A 150_, because he cou 1 d not recall much of what he saw and heard, he told us he had to rely on Ms Albrecht to refresh his memory, and also, he called Cruickshank and asked her to remtnd htm what she had told him the nlght of the incident He testt fled he could not have seen them through the glass partitions as he walked down the corridor towards the door Crutckshank's delay in complaintng about Santos's comments and conduct affects the crediblllty of her eVldence The constderable time between the alleged events and the ttme she testified affected her memory of them The quality of her evtdence 1S not improved by the delays For many lncidents Cruickshank was '~ ~ 108 unable to provIde suffICIent relevant information on the time andlor place, and the conversational context and ctrcumstances whtch 1S necessary to provtde convinctng evtdence that the comments were actually made and were harasstng . There are many tnconststencies and contradictions in Crutckshank's evtdence On her fourth allegatton, the basement inctdent, the credibiltty of her evtdence lS seriously tmpaired by contradtcttons and inconststenctes On examtnation she testtfted that she had told the Investigator the basement incident happened in Unit 4, and that she did not tell him she had any doubts r - about it Subsequently, after she learned that Santos's testimony wtll be that the only tIme he had. escorted her for a file retrieval was to UnIt 2, she became uncertaln about Unit 4, and thus she changed her evtdence to say lt may have happened in the basement of either Unlt 2 or UnIt 4 On examination she testified also that she had gone to the basement for files several tlmes previously and that Santos had escorted her to the basement on one prevtous occasion On examtnation she could not recall when or where the file retrievals had taken place, but she was confident that Santos had escorted her on two occasions, and that the two escorts she had wtth htm had not been to the same unit, but to two different untts in the basement On cross-examination, Crui~kshank contradicted herself on how many tlmes she (' had been to Unit 2-basement wtth Santos She confirmed in cross-examinatlon that she had been in the tunnels on several occasions, that the first time was with Santos, and that she had never been to Unit 2-basement prior to the incident She then contradicted this to say she had been to the basement with him on a prior occasion Further, she confirmed also that she could not have gone to Unlt 2 with Santos on both occasions She then changed her mind agatn, saying she now believed Santos had escorted her to the basement on two occasions, and each time to the Unit 2 basement On further questioning, Cruickshank expressed conftdence Santos had escorted her on a previous occasion to Unlt 2, but she could not remember when or where Her evidence was confused It may have been to the first floor She confIrmed she did not tell the Investigator that Santos had escorted her on. more than one occaSlon for a file retrIeval She could not recall if she had been escorted by other L p ~ 109 securIty offlcers on the other occaSlons, or whether it was Santos on all of the several occaSIons she satd she had been escorted to the basement When Crutckshank was told that Santos wtll testtfy he had never been to Unlt 4 basement wtth her, she replied she nelther agreed nor disagreed wtth htm on that, and protested she had no need to remember when, where, and wtth whom, she would have gone to retrieve a ftle on that parttcular nlght, even though it was an infrequent and unusual event Cruickshank sald lt was dIfflcult to remember exactly what happened because it was so long ago, and because "I had no intention of reporting it at the tlme" She explained her uncertatnty about whether it happened in the basement of 2 or 4 because there was nothtng in her mlnd "to stand out as mark1ng a difference between 2 or 4" We ftnd this explanatton incredtble The panel had been taken on a Vlew of the slte and we acceDt as credIble Santos's testimony that it is verv difficult to understand how Cruickshank or anvone else could DOSSlbly have been confused between the two file rooms. in U-2 and U-4. when thev are so very dtfferent. The credibility of Cruickshank's evidence on the basement inctdent is affected also by her fallure to explain why Santos was required to escort her in search for a pattent's file, when, as she testtfied, the night clerk, Fattma Raza, was worklng the same Shlft Several of the Employer's wltnesses, partIcularly Gtsela Albrecht, FatIma Raza, Vtta Clarke, and Ted Cyfko confIrmed that it 15 the duty of the ntght clerk to retrIeve pat1ent flles, accompanled by a security escort, and that the night nurse would go in search of a patient ftle only in the unusual and exceptional circumstances, when neither the night clerk nor the nurse coordinator are available Neither Raza, the night nurse, nor Cyfko, the nurse coordinator, in their testimony, offered any explanatlon why one of them had not gone in search of the file, on thts parttcular occasion, rather than Cruickshank Nor did Cruickshank offer any explanatton why she went for the file when it was Raza's duty to do so {Cyfko and Raza were not examlned or cross-examined on thts question They were called by the Employer to testtfy before Cruickshank} 'i... :: ,,', 110 On the basement incldent, we prefer the eVldence of Santos Crulckshank's evtdence tS so full of inconststenctes and contradlcttOns that tt can hardly be gtven much welght We ftnd the Employer falled to produce the requlred clear, cogent and convincing evtdence, on the balance of probabiltties, to establ1sh proof of thts allegation We have come to the same concluston on the the bedroom incidentsiseventh and e1ahth alleaations} On cross-exam1nation Cruickshank dtsclosed signlficant dlfferences between her eVldence on examtnatton and what she told Yetman, the (- Investtgator She confirmed she had not told Yetman that Santos had grabbed her or tried to do so ln etther of the two bedroom inctdents, which dtffers from her evtdence tn chtef, which was that he 'grabbed her' tn her seventh alleaation and that he had 'trted to grab her' ln her elahth alleaatlon. Furthermore, on cross-examtnatton she conftrmed what she had satd tn chlef, that no rellef nurse was present at the tlme of the two lncldents, and she denied telltng Yetman a relief nurse was there Then, on further questiontng, she contradicted her earller eVldence. She adm1tted she had told Yetman a relief nurse was there when she found Santos lying on the bed [seventh alleaatton] She then attempted to clarify the confusion by telling us about a thtrd bedroom inctdent where she belteved a reltef nurse mtght have been present She confirmed that she had not previously reported such a th1rd bedroom inctdent to anyone, netther to the Investigator, nor to us ( She agr.eed she had told the Investigator that, for one of the bedroom incidents, when she came to the door tt was open, and that when she looked in and told Santos "I'm not comtng in unhl you leave", he left She agreed she dld not tell the Investigator that Santos had grabbed her or trled to do so tn e1ther of the two incldents which she had reported to htm Prevtously, she told both the Investtgator and the Board about only one tncident where Santos was already lying on the bed when she arrived and she asked him to leave and he dtd On cross-examtnatton she sa1d there were two such incidents, and that he had made no attempt to touch her in either one of them Thiscontradtcts her eVldence in chief Cruickshank confirmed she told the Invest,gator there was only one tlme she had found Santos lying there, and that 1t was 1n the t__ I I ..~\ tt .. 111 second bedroom tnctdent However, ln her eVldence in chlef she told us that thts was what happened tn the flrst bedroom inctdent Cruickshank conflrmed that she dtd not tell the Investtgator that Santos had trted to grab her tn either of the two tncidents She agreed that accordtng to the Investlgator's notes the only incident where Santos was already tn the room was the only tIme she found htm already lYIng on the bed The cross- examinatton established that her evidence regardtng the two bedroom lnCldents is contradlctory and differs Stgnl ftcantly from what she told the Investtgator ************************ There are signlficant stmilarttles as well as differences tn the verSlons described by Santos and Cruickshank on the Admittina Room tnctdent Both versions agree that it happened on a Friday ntght shtft when a ntght clerk was not on duty, and that they were alone at the time, after mldnight, not long after Cyfko had left the Admitting area, and at a time when the duty doctor was not present Both verstons are consistent wtth the vtew that the tncident was preceded by some verbal banter, but neither one can agree on what the other one had satd I Cru1ckshank said Santos commented on her losing weight and her breastsgetttng \ smaller Santos dented this He claimed she provoked hts reactIon WIth her comment that he was all talk She denied saYlng thts Her version 1S that when she got up from her desk, walked toward the door, and put her hand on the door knob, he came behind her and grabbed her around the walst~ and ~t the same time leaned hts shoulder agalnst the door, so that she was unable to get out Hts version of how the incident started was not significantly dtfferent than this A signl ficant difference in the two versions is that he sald he held her llahtly on the waist, Just above her hips, while her verston is that he held her tiahtlv wtth both hands on her watst Our lmpression is that he held her more tightly than he thought, but not so tightly as she thought ~ - -- -- ---.--- ~--- vJ,-.... .~; it ..." I I 112 We ftnd a slgnlftcant lnconslstency between the complainant's oral descr1pttOn of the July 19th inctdent on examtnatton and the demonstratton of the event In cross-examlnat1on The demonstratlon dtffered signif1cantly from what the Wttness descrtbed ln examtnatlon In her unassisted deSCrtptlon of the incident, she had said nothing about Santos touchtng or trying to fondle her breasts Also, Dr Logan, the only witness to thlS incident, who arrived just as she was gettlng off the floor, confirmed that she d1d not say anythtng to htm about Santos ktsSlngher or fondllng her breasts Thus, the demonstratIon was InconsIstent not only with her own prior description of the event which {' she gave in evidence, lt was inconststent also with the descripttons which she . ~ ~ gave Dr Logan on the night of the event (see above, p 37), and whtch she gave her head nurse, Vita Clarke, some days after the event (see above, p 25) The demonstration happened so qU1ckly we dtd not see clearly how or when her hands moved to the breasts Although each of the three panel members has a different view of thts demonstratton in which Ms Qutck participated, actlng in the role of Cruickshank, we have come to the conclusion that it illustrated how Santos's hands might have touched the breasts tnadvertently as she struggled to break away from h1S grip We reiect the Emolover's submission that Cruickshank had been traumatized bv Santos's sexual assault in that lnctdent. Her own evtdence, as corroborated ( by Dr Logan, a psychiatrlst, does not indicate the presence of a trauma or a sexual assault She testified she had continued working the remainder of her ntght shIft, Just as if nothing serious had happened First, if it had been a traumatic expertence, she may not have been able to do that The incIdent happened not long after the night shift began Secondly, the fact that she went on with her job as though nothing had happened could be consistent wtth the fact that nothing serious did happen Furthermore, if Dr Logan believed there had been a sexual assault, we believe he would have reported it Dr Logan's testimony was that Cruickshank told him only that Santos had grabbed her and that in her struggle to get away she had fallen "I don't recall her saying anything about hlm kissing or fondling her" Dr logan testified that although he had suspected a sexual assault, he actually did not see tt and he dId not recall Cruickshank saying anythtng to ( ~ -~- t'\ If. '. 113 I I I that effect His eVldence lS consistent with Santos's verSlon of the event as I playful or frtendly banter, and Wt thout sexual tnterests or tntenttons It tS consistent also wlth Cruickshank's verSlon She dtd not descrlbe the event as a sexual attack or as an attempt by Santos to seek sexual gratlftcatlon Rather, she descrlbed the 1nctdent as more of hts unwanted sexual Joklng and banter But on thtsoccaston. she made clear to htm that she was unoleasantlv surorised when he arabbed and held her bv her waist. and that she was not at all amused bv these antics WhlCh had dtsturbed and uoset her. On cross examlnattOn Santos sald he belteved Cruickshank had not antictpated his react ton to her remarks, when he put h\s hands on her walst He sOld she was surprtsed by lt and that he dtd not hold her very long before he let go She lost her balance, stumbled very suddenly, and fell forward to the floor It all happened very qUlckly She very llkely thought he was holdlng her more ttghtly than he actually dld, just at the tnstant when she broke away He let go of her as suddenly as he had grabbed her This ts not inconststent w1th Cruickshank's verSlon Santos conflrmed he never dated her, never soclal1zed w1th her outs\de of work, and he never touched her by surprtse before, although they mlght have hugged each other when they celebrated New Year's Eve or Chrlstmas Eve, at work He agreed that "she dld not lnvite hlm tn any way to touch her", but nevertheless he belleved it was not tnappropriate tn those circumstances because it was a spontaneous action which could not have been interpreted as a sexual come-on tn the context of the kind of relationship he had wtth her He felt confident that Cruickshank would understand and accept him as a fr1end who was Just joklng around in his usual way, wtthout any sexual lntentlons We do not characterize Santos's conduct as an attemot to seek sexual aratiftcatlon. In our judgment, tn vtew of the context and circumstances of the inctdent, Santos's conduct tS more appropriately characterized as horseplay that had gone too far, beyond the bounds of proprtety He was mlstaken in his judgment that his spontaneous response would be acceptable to her and taken in Jest It obviously was not ,~... ,~ ..... v ._' 114 DECISION ON SEXUAL HARASSMENT ! The onus is on the Employer to prove both [lJ that the alleged sexual comments and conduct had actually happened and [2J that they comprised a course of ! vexattous comment or conduct which tS sexually harasstng It should be noted ! that the law and the Collective Agreement forbid sexual harassment They do , I ; not forbtd dtrty jokes, sex-related discussions, or harmless sexual joking and i bantertng The collecttve agreement seeks to eradtcate sexual harassment from t"""'" ! the workplace It does not alm to turn workplaces such as this hospital into t- dreary, sexless and humourless envtronments ! We must ftnd the meaning of Santos's words and acttons ln the context of the. Clrcumstances ln Wh1Ch they occurred Particularly relevant for such context ! is the nature of their relattonshtp Crutckshank and Santos concur ln their i I evtdence that they had a friendly, non-sexual relattonship at work whtch dtd I not extend to a social relattonship beyond the workplace Santos testtfied that their relationship included sexual joktng and banterlng I Crulckshank's evtdence is that she regarded many of hlS remarks as I 1 unacceptable, but she never told him so Before the Admitting Room tncident, I she never told htm she was bothered by any of hts comments, and she never told C hlm to stop anything which had bothered her She never complai~ed to her supervtsor, not until long after that last lncldent Cruickshank's silence affects the credlbility of her evidence regard1ng the occurence of those tncidents Her failures on each occasion to tell Santos his Jokes and banter I were unwanted, and her much delayed reactions to them, reduce the cred1btlity I of her claim that she was harassed by hlm \ I In conclusion, for the reasons stated above, we find that the Employer failed I to produce the necessary clear, cogent and convincing evidence to prove, on , the balance of probabilittes, that Santos had sexually harassed Cruickshank ln respect to the tncldents which had occurred orior to the Admittina Room incident of Julv. 1991. ~ ~ ~ 115 In resoect to the Admltttna Room incident, we ftnd Santos acted lmproperly He crossed the boundary between frtendly horseplay and harassment when he grabbed Crulckshank by surprtse and held her agatnst her wlll, however brlefly or spontaneously that may have been Santos erred in hts Judgment He should have known his conduct was inappropriate and unwanted, given the nature of their frtendshtp Thts mtsconduct, in our judgment, tS not sufftC1ent, however, to establlsh Just cause for Santos's dlSmtssal The Employer has falled to prove that it had Just and reasonable cause for his dismissal I Considerlng that thlS was the first proven lncldent, that Santos stopped promptly ln response to the complainant's request, and that he dtd not subsequently attempt to engage ln sexual Joklng and banter, we have declded that the aoorooriate oenaltv tS a discioltnarv susoenSlon of three davs without oav In arrtvtng at thlS decision, we consldered the cases relied upon by counsel, and we applted the doctrines whtch are ftrmly establtshed tn G S B jurisprudence the principles of progresslve and remedtal d1sclpllne, and the prtnciple that the severity of the dtscipllne should reflect the serlousness of the offence We are confldent that the three-day suspenSlon lS more than sufftcient to be remedial It also sends the appropriate message to dIscourage such unacceptable behaviour ln the workplace I There is nothing in the evtdence whtch would lead us to belteve that Santos's return to work would in any way contaminate the work envtronment or represent a threat for Cruickshank or others It tS noted that the three-day suspenston tS not tnconsistent wtth standards of dlscipline applied by the Employer in respect to more serious offenses of sexual harassment committed by managerial personnel in the same Ministry, as tndicated by the G S B declsions relied upon by the Union in tts ftnal argument rCourtenev GSB 912/88 (Wtlson), and Anderson GSB 3842/92 (Stewart)] After revtewing the deciston in Courtenev, whtch found Wllliam Fawcett, a manager tn the Mintstry of Health, had sexually harassed a subordinate female employee, the Employer determined it was appropriate and sufftctent to wrtte Fawcett a non-dlSCtplinary letter of counselllng [Anderson, page 12J ~ 0; j...). .iT 116 Subsequently, after acceptlng an lnvestigator's flndings that Fawcett (the same manager) had sexually harassed Anderson (a new and dtfferent grievor) as well as other subordtnate female employees, the Employer determined that a ten-day suspenston was appropriate [Anderson, page 22-25J Santos, unltke Fawcett, was not tn a pos~tlon of power or authority His mlsconduct was less sertous than Fawcett's misconduct Fawcett had abused his managenal powers In our view, managers must be held to a higher standard of dlSctpltne, reflecttng an exemplary standard of 'conduct tn the workplace r: DECISION ON THE DELAYS The Unton submits that thedlsmlssal should be set astde, tf for no other reasons, on the grounds that the delays were undue and unreasonable, between the ttme the allegations of the complatnant against the grlevor were first brought to the attentton of the Employer, on or about October 9, 1991, and the time the Employer dismtssed Santos on March 22, 1992 The Unlon SUbmlts that the grounds for settlng astde the dismissal are similar to those in the followtng cases on whtch it relIes Re Borouah of North York (1979), 20 LAC (2d) 289, Re Brunswick Bottlina Ltd. (1984), 16 LAC (3d) 249, and Re Vancouver Shtoyards Ltd. (1988), 34 LAC (3d) 412 We agree We have co~stdered and rejected the Employer's reply to thts Union ( submtsston The fact that it was not presented as a preliminary or procedural issue when the hearings commenced does not preclude the Un10n from presenting the issue in its ftnal arguments on the basis of men t The factual evidence necessary to support the UnIon's submission on this issue was adduced by the Employer The facts of the delays, as well as the loglcal implications of those delays upon the merits of the Employer's dismissal actIon, were revealed and clarifted as the Employer's evidence unfolded through the prolonged hearings Thus, the Employer's witnesses provided the essential evidence on whtch the Unton based its submi.ssion to quash the dismissal The Union is not precluded from advancing legal arguments i.n its final submissions that may not have been preci.sely formulated at earller stages of the dispute resolution process f '---- .;; -.1, ;. ~ 117 The factual basts of a grievor's clatm of unjust d1SCtpllne or dtSmlssal evolves as the process unfolds Although the gravamen, or the fundamental nature of the grlevance itself, may not be changed, the process by WhlCh the facts unfold may lead the Unton to rely on facts of whtch tt was not completely aware at the earlier stages of the grievancelarbltratlon process Thus, the Unton may present tn tts ftnal submtsstons at arbttratton legal arguments whtch may not have been clearly and precisely formulated at the earller stages This may be an inevttable result where the Employer has not fully disclosed, prtor to the hearlngs, all of the relevant factual evtdence which tS revealed through the examtnatlon and cross examtnatlon of lts wltnesses, and upon WhlCh the Unlon may legltlmately formulate an approprtate defence [See Speare GSB 113/91 (Gorsky), and Rettsma GSB 93/89 (McCamus)J Sect10n 27 10 3 2 of the Collectlve Agreement suspends the ttme limlts of the grievance procedure durtng the tnvestigation of a sexual harassment complalnt And Sectton 27 10 3 1 states "the time limtts set out tn Sectlon 27 2 1 do not apply to complaints under this Article provided that the cbmplatnt lS made wtthtn a reasonable ttme of the conduct complalned of, havtng regard to all the ctrcumstances" The collectlve aareement ln Arttcle 27 as a whole expresses the mutual understandina and destre of the part1es to avold unreasonable and undue delavs ln confrontlna and resolvlna alleaations of harassment The Employer does not have the rlght to delay unduly or unreasonably the commencement and/or the completton of an investigatton wtthout regard for the consequences of such delays upon the leglttmate interests of the complainant and the grievor The suspension of the time Ilmits for the processing of complaints or grlevances in no way bestows upon the Employer the right to unduly and unreasonably delay an lnvestigation and thereby to delay taking a dlscipllnary actlon Thus. we ftnd that the collective aareement aives the ar1evor a substantlve riaht to a promDt investlgationand determination of the allegatlons made aaalnst hlm. without undue or unreasonable delav. The EmDlover does not have the rlaht to postpone the determinatlon of those alleaations undulv or unreasonablv. -- - -- - ., >t" .(.. a. ~ 118 Our declslon lS to quash the dlSCtphnary actlon agalnst the grtevor on the grounds of the Employer's undue and unreasonable delays tn d1smlsStng Santos long after the complatnant had brought her allegattons to its attention by her letter of October 9, 1991 [Exhtbit 8J, and on the further grounds of the undue and unreasonable delay in dismlSStng Santos after the tnvest1gation was completed On October 21 Santos was suspended pendtng an invest1gatIon of Crulckshank's allegattons On November 11th Santos successfully grteved the suspenston [Exhiblt 31J He was retnstated wlth back pay for the period of his suspenSlon to November 15th There is no evtdence that the Employer had (-, actually investigated the allegations durtng that 25-day suspenSton pertod Santos grieved aga1n on November 22 [Exhlblt 32J, demanding an impartial tnvesttgatlon We dtd not receive evtdence on the exact day the investtgatlon started and ended, but Yetman, the Investlgator, testtfied that lt lasted two and a half months and started about the end of November Hts evtdence lndicates that the tnvestigatton was completed no later than mld-February Santos was not dismlssed untll March 23, 1992, more than fIve month's after the EmDlover recelved Cruickshank's alleaations tn writing, and more than a month after the Employer completed the formal tnvestIgation After the Employer had taken such a long ttme to assess Crutckshank's allegations, Santos is entttled to assume either that his conduct is condoned or that the ( allegattons can not be substantlated The Employer's fat lure to dectde promptly the disclpltnary questtons arlStng from the allegations tS 1nexcusable, unconsc1onable, and without Justtficat10n The delays harmed the complatnant as well as the grievor Their testimony, respectively, disclosed that the delays contaminated their work envtronments, disrupted their lives, and caused them much personal patn and suffering The Employer lS condemned for its indtfference to the harm and pa1n It caused both complainant and grievor by its fallure to respond promptly with an lnvestigatton and decislon on the complatnant's allegattons Our deCtslon to quash the dlSCtplinary actton ftnds support in the cases relIed upon by UnIon counsel In Borouah of North York arbitrator Schiff says "Between December 20th and the date of the dtscharge some seven weeks elapsed { ~"- -. .., .. " i! 119 An employer may justly delay imposing dlscipllne for a reasonable tlme after the event---perhaps a few days-- tn order to reach a wise conclusion about the approprtate penalty But beyond that, Justtfying the employee's concluslon that his conduct tS condoned, bars levy of any penalty Re Re1mer Exoress Ltnes Ltd and Teamsters Unton, Local 880 (1958), 8L A C 341 (Schwenger) Here the delay after December 20th was much longer" Later ln hts award arbitrator SChlff states that "an employer lS entltled to a reasonable period of time to assess an appropriate penalty" and that once the reasonable period has passed the employee is entitled to assume that the offence has been forgtven " He concludes that "the result of the delavs demonstrates the need for an emolover to exerClse ltS resoonslbllitv ln a collectlve baraalnina relattonshio by actlna exoedtttously to levy that measure of disclollne warranted ln the liaht of arbltral aUldellnes. The borough's representatlYeS may, tt ts true, decide wrongly when they act But a wrong dectston can be corrected ln pre-arbltration grievance procedures or, lf not, by an arbttrator A decision undulv delaved cannot be corrected at all. it is slmolv invalid." [Our emphastsJ In Re Brunswick Bottlina Ltd. arbitrator Iwanicki endorses arbitrator Shiff's deC1Ston and applies lt ln hts decislon that the dlSCtpltne tmposed by the employer was "untimely and therefore tnvalid" In Re Vancouver Shtovards Ltd. arbitrator Ready decided " tf the company determlned to cancel the grlevor's recall rtghts by declartng htm unsuttable for recall as a result of hts protest picketing acti Vt ttes , it was incumbent on the company to do so at or near the tlme of the causal inctdent so that the grievor and the unton would have had an opportunity to challenge that decision under the grievance procedure in a ttme ly manner " We likewise flnd, for the reasons glven herein, that the Employer's deciston to dismiss Santos was unduly delayed and cannot be corrected It tS simply lnvaltd ------ ---- '* .. ... ~ 120 For the reasons gtven hereln, the grtevance succeeds Accordlngly, the grlevor shall be forthwtth reinstated to hts posttton wtthout loss of sentority, and he shall be fully compensated for all lost wages and beneflts, w1th lnterest calculated tn accordance wlth the practices followed by the Ontarto Labour Relatlons Board We remaln setzed in the event of any difflcultles between the parties tn the tmplementation of this award DATED AT DELRAY BEACH, FLORIDA, THIS 3rd DAY OF~"'F-ebruary 1-995. __ -' f --------------~ HARRY J WAISGLASS, CHAIRPERSON 4/d: .....~, - (Addendum to follawU-_______________________ E SEYMOUR, MEMBER 'I Dissent' Dissent to follow --------------------------- M O'TOOLE, MEMBER ( i i, -~ . ~ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT BOARP DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TElEPHONE/TELEPHONE 1416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACS/MILE/TELECOPIE (416) 326-1396 April 28, 1995 AMENDMENT ~ RE: 974/92 OPSEU (Santos) and The Crown in Right of ontario (Ministry of Health) Please attach the enclosed Dissent of Mr. O'Toole, the Addendum of Mr. Seymour, and the Reply of Mr. waisglass to your copy of the above noted Decision. ." Yours truly, - Z~vfl Registrar . LS/ dbg ".~c,' Encl. -:-''',- ; - \ \ ( '.;;.- 1'-, ~ SANTOS, 974/92 DISSENT OF EMPLOYER MEMBER I have carefully reviewed the decision of the majority and must respectfully dissent from their decision to dismiss the employer's motion to re-open its case and from their decision to allow the grievance. My reasons for so doing are set out below I ~ do, however, concur with their decision to dismiss the union's motion for non-suit. Subject to what I hereinafter specifically take exception to or supplement, the majority's summary of the evidence is substantially correct. Unless otherwise indicated, all page references are to the decision of the majority The issue that arises in this case is whether the grievor sexually harassed Cruickshank. I agree with the majority's definition of sexual harassment and, in particular, their elaboration of "the reasonable person" branch of the test: "would a reasonable person in the same circumstances have known that the behaviour was unwelcome" I also agree with their formulation of "where the line is drawn" "when the joking becomes hurtful, humiliating and demeaning to someone, and yet persists even after such harmful consequences are obvious to a reasonable person," Stated differently, the line is crossed when the elements of choice and mutuality are not present. Certain comments of the majority elsewhere in their decision suggest that they may not fully grasp the significance of the last-mentioned two elements. For example, at page 114 they state that the law does "not forbid dirty jokes, sex-related discussions, or harmless sexual joking and bantering" In fact, the law does forbid the above behaviours if they are offensive to the person to whom they are directed. The majority go on to state that the law "does not aim to turn workplaces such as this mental hospital into dreary, sexless and humourless environments" However, if 1 -~ \ ( the sexual bantering or humour is unwanted by a person, it is most certainly the aim of the law to eradicate it from the workplace. The determination of the question whether Santos sexually harassed Cruickshank requires a consideration of three sub-issues: (a) whether the conduct attributed to Santos in fact occurred, (b) whether it was unwelcome; (c) if so, whether Santos knew or reasonably should have known "it was f unwelcome I ~. I A number of general background factors are relevant to the determination of the t abo-\re issues. Thel first is the general personality of each of the two players involved. These are I acc~rately described by the majority at page 98. I would only add that, while Cru:ickshank may not have been regarded as "a humourless prude", several witrtesses indicated that she was not the type of person to engage .in sexual banter or I joking. For example, Dr Doumani testified that "knowing her as I do, I would be surPrised if she would engage in sexual banter, that kind of conversation." (page 35) Eve~ the grievor at one point stated that he would joke very little with Cruickshank bec~use "it is not in her character to joke very much." (page 86) Ms. Gerardi and MS.j Raza both indicated that Cruickshank did not engage in sexual banter or joking. (pages 23 and 24) ! Anrither relevant background factor is the general nature of the relationship benlreen Cruickshank and Santos The majority are of the view that both had a "fri~ndly workplace relationship" (page 98) and I agree that this is an accurate I characterization. However, every witness who testified claimed to have at least a I friendly workplace relationship with Santos. Yet none of these witnesses said that Santos engaged in sexual banter with them. In fact, most said that Santos didn't do so. This is in marked contrast to Santos' statement at page 86 that "everybody at 2 \ ( ;~'- Q.S.M.H.C. with few exceptions, 'participate in sexual joking, more or les~." In my opinion, no particular significance attaches to the fact that Cruickshank and Santos were workplace friends. A further relevant background factor is the general tenor of the workplace with respect to sexual comment and conduct. Santos' evidence was that sexual banter and joking between nurses and security officers was common in the workplace. The majority are of the view that several witnesses corroborated the above evidence. ~ (page 100) In my opinion, the majority's view is mistaken. In fact, some witnesses indicated that sexual banter was not nearly as prevalent between nurses and security officers as suggested by Santos. For example, Dr Doumani said that she saw the nurses and security engage in sexual bantering, but not frequently She said that it was more evident during the day, when lots of staff were around. (page 35) Some witnesses had not seen Santos engaging in sexual banter One of these was Ms. Gerardi, who worked two shifts in each cycle with Santos. Although she worked many shifts with Santos, she never heard him make sexual jokes. (page 23) One witness, Ms. Raza, the night clerk in Admitting, could not recall if any of the jokes she had heard were sexual. (page 25) Another witness, Ms. W~lker, when asked to give an example of sexual bantering involving Santos, described a scenario that was not really sexual in nature. (page 27) In my view, the appropriate inference to be drawn from the evidence is that the incidence of sexual banter may have been frequent on the day shift (and then only between employees with social relationships outside the workplace) but only very occasional, if at aU, on the night shift. The course of conduct attributed to Santos covers a period of several years, commencing some time in 1989 and ending in July 1991 Cruickshank's and Santos' versions of what took place between them are, for the most part, conflicting. Thus, the evaluation of each's credibility is pivotal to the resolution of the issues herein. I agree with the majority that credibility is to be assessed according to the test set out by O'Halloran, J A. in Faryna v. Chorny, and reproduced at pages 15 and 16 of the majority award. I submit, however, that the majority turned their minds to only that part of the test relating to the personal demeanor of the witness and ignored the 3 1 ~ l other part which states: "The test must reasonably subject his story to an examination of 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." ~ I shall illustrate the above submission later The majority conclude that Cruickshank's evidence is totally lacking in credibility In my opinion, their analysis is flawed on several grounds. First, they essentially brush aside all of Cruickshank's evidence relating to the pre- July 1991 incident on the grounds that it was "vague and uncertain", and because Cruickshank "did not clearly recall the time and place, nor did she provide sufficient clear and consistent evidence on their circumstances and context, to establish that they in fact happened" (page 106) However, the majority do not illustrate their contention with reference to any particular incident. Many of the incidents, in fact, are not illustrative of the majority's conclusion. One example is the first incident where Cruickshank said Santos pulled the top of her blouse and looked down the front part. The majority do not specify what is vague and uncertain or what is inconsistent in this evidence nor do they show how any missing details as to context are necessary for probative value. It is hard to imagine any context where this would have been inoffensive, save in the ):>edroom. Another example is the fifth incident where Cruickshank said she had asked Santos to help her with something and he said "you're too tense, relax, you need to get laid" Presumably what is vague and uncertain about this evidence is the "something" she needed help with. But the majority do not indicate how lack of specificity as to this detail detracts from probative value, especially in view of the fact that Santos not only denied making the comment but added "I'd never say to her 'you need to get laid'" (page 79) Another example is the sixth incident where Cruickshank alleged Santos asked "if he could come home with me and sleep and we would watch soccer" There is 4 ( ( nothing vague and uncertain or inconsistent in this evidence. It is hard to imagine how any missing details as to context are necessary for probative value as such a comment would rarely, if ever, be appropriate between two workplace friends who shared a mutual interest in soccer The majority are also critical of Cruickshank's credibility due to alleged errors or inconsistencies in her recollection of certain incidents In my opinion, many of their criticisms are unfair or even petty .~ For example, they are critical of Cruickshank's inability to correctly recall the date of her assignment to full time work in the Admitting Department. Cruickshank's evidence was that she commenced full time hours in Admitting in the summer of 1988. On cross-examination, she rejected the suggestion that she commenced full time hours in the summer of 1989 A review of Exhibit 21 and Exhibit 22 shows that Ms. Cruickshank did commence working full shifts on Admitting in 1988 and only commenced working exclusively in Admitting in August, 1989 It appears to me that this is an issue of imprecise terminology as opposed to error Moreover, the issue is not significant to any substantial matter in dispute. The majority are especially critical of Cruickshank's confusion as to whether the fourth incident, the basement incident,. occurred in Unit 4 or Unit 2. While the matter of the location of the incident is of some importance, there is a simple explanation for Cruickshank's confusion. She had done basement file retrievals on only three or four occasions a year since working on Admitting Moreover, on these occasions, she had never gone via the basement route. She therefore had very little opportunity to acquire any degree of familiarity with the environmental details of the basement. Santos, on the other hand, said he had done over one thousand escorts for file retrievals in his eleven years of service as a security officer (page 76) He thus had a far greater opportunity than Cruickshank to become familiar with the basements. Notwithstanding Cruickshank's confusion as to the location of the basement assault, she remained consistent as to its critical features, namely, that it occurred after she and Santos left the file room, that he shoved her against a table, and then 5 ~ ( ( fondled her breasts. She described the incident as one in which she feared she might be raped. Dr Borins' evidence was that confusion and self-doubt are all characteristics quite common in the case of assault by an acquaintance, but much less so in the case of assault by a stranger In my opinion, the confusion over the unit is a .minor inconsistency; it is consistent with a fading memory and inconsistent with fabrication. If the incident was fabricated, I submit its details would have been presented clearly and consistently .~ The majority prefer Santos' evidence because he clearly recalled the location of the retrieval. I find the clarity of Santos' recollection peculiar for a number of reasons. /. First, it took place years ago. Second, it was one among thousands of uneventful escorts he had done. Third, Santos had a complete lack of memory respecting his discussions with Mr Yetman. All these factors, in my opinion, cast grave doubt on the veracity of Santos' account. The majority also criticize Cruickshank for failing to explain why she went on the file retrieval instead of the night clerk, Raza. While it is true that file retrievals were usually done by the night clerk, or if unavailable, the nurse co-ordinator, it is also true that nurses did, on occasion, do file retrievals. What required Cruickshank to go on this particular retrieval is, surely, a matter of minor administrative detail. It is understandable, after the passage of a number of years, that such a detail might slip her mind. Having regard to the foregoing, it is my view that Cruickshank's version of the basement assault incident is more believable than Santos' Moreover, contrasting their accounts and motivation toUe, I am satisfied that the basement assault did occur The majority are also critical of Cruickshank for being either confused or contradictory about the number of bedroom incidents, Santos' conduct during such incidents, and whether or not a relief nurse was present. While these matters are not insignificant, it is understandable that Cruickshank might get confused about them after the passage of so many years. That is no more than is to be expected from an honest witness giving her recollections at different points in time. Moreover, 6 l \ ( confusion is inconsistent with fabrication. If the incidents were fabricated by Cruickshank, there is every reason to believe that she would have presented their details clearly and consistently The excessive preoccupation of the majority with Cruickshank's evidence has caused them to ignore altogether the many inconsistencies in Santos' testimony The following are examples. ~ Concerning Cruickshank's personality and the nature of his relationship with her, Santos, in chief, said that Cruickshank was "shy and passive with certain people, but not with me. She was not shy and passive around certain people she was comfortable with, and she was comfortable around me, " (page 79) However, in cross-examination, Santos said he would joke very little with Cruickshank because " it is not in her character to joke very much," (pages 86 and 87) He also said" we .weren't often together, only about two shifts a month, and even then we had our jobs to do. We couldn't sit around and talk all the time." (page 87) In light of the latter comment, one is left to wonder how Santos had either the time or opportunity to.- develop the special relationship with Cruickshank that he described above Santos gave evidence in chief regarding his friendly relationship with Ms. Cruickshank. He described a number of incidents in which she had tucked her arm in his or put an arm around his shoulder in a friendly gesture. Then, when asked if he had sexually assaulted Cruickshank, Santos responded by stating vigorously that he "never touched that lady" (page 78) The employer member of the panel enquired about this contradiction in his statements and he provided the explanation that his denial of touching Cruickshank was not denial of touching her in any way but only of touching her in a sexual manner This explanation, however, does not appear to fit another situation in which Santos denied any physical contact with Cruickshank. This occurred in the context of his discussion with Mr Yetman regarding the allegation of the sexual assault in the basement. Beginning on page 14 (first set of notes), Santos denies any physical contact with Cruickshank during the file retrieval. The notes are as follows: 7 -~~ - \ t.. ''We didn't even talk. I don't go around grabbing people, especially women. I have a reputation as a gentleman. I don't have physical contact with others except friends. And she and I are not friends." ,f! On the next page the notes continue: "One time I came out of my locker room, she came out of her locker ~ room. She intertwined her arm in mine, 1991, May? But this time there was nothing. I don't even remember us saying anything." In the above excerpts, it is clear that in denying physical contact, Santos is denying any type of contact, casual or otherwise. This interpretation is consistent with the text that follows on page 15 In addition, his description in the notes directly contradicts his oral description to the panel respecting the one and only file escort with Ms. Cruickshank. Santos, in chief, described his relationship with Cruickshank as a friendly rela tionshi p Yet he stated to Wayne Yetman, in the above excerpt, that Cruickshank was not his friend Santos explained that Cruickshank was a workplace friend but not a social friend outside of the workplace. Even if this I explanation is accepted at face value, it calls into question the candor and care with I which Santos gave his evidence in general. For example, it casts doubt on the I I special relationship Santos claimed to have developed with Cruickshank. In assess~p~ues of credibility, the majority do not give adequate weight to the evidence apparently impartial witnesses. They appear to have focused entirely on a comparison between the evidence of Santos and Cruickshank, without considering the possibly self-serving nature of such evidence. Of the two, Santos had the most compelling motive to lie; after all, his job was on the line. Yet the majority do not even make a token reference to this in their analysis of credibility issues. In my opinion, the evidence of witnesses with no obvious interest in the outcome of the proceedings, should be preferred to that of Santos or Cruickshank where there are inconsistencies between their evidence. There were numerous 8 l \. , such witnesses. The most significant of these is Robyn Hart, as she worked in the Admitting Department on many of the night shifts on which Cruickshank and Santos worked and as she was on friendly terms with both. She therefore had the , opportunity to closely observe the way Cruickshank and Santos interacted. Her evidence is supportive of Cruickshank on a number of key factual issues. These will be explored in detail later Having regard to the foregoing, I am satisfied that the pre-July 1991 pattern of -~ conduct attributed to the grievor in fact occurred. I will now turn to the issue of whether Santos' conduct toward Cruickshank was welcome or unwelcome. The majority conclude that it was welcome (except for the July 19 incident) on several grounds. In my opinion, their analysis is seriously flawed. The first ground relied on by the majority is their finding that Santos' evidence that Cruickshank participated with him in sexual banter is credible. In my opinion, it is not credible for a number of reasons. First, it is inconsistent with Cruickshank's general personality as described by her colleagues, especially Dr Doumani. (see page 2 supra) Their evidence demonstrates that Cruickshank was not the sort of person who would welcome sexual banter or participate in it. Second, Dr Doumani testified that sexual banter occurred mainly on the day shift between employees who had social relationships outside the workplace. Santos and Cruickshank worked together on the night shift. Moreover, Santos was emphatic that he did not socialize with Cruickshank away from work. Third, few night shift employees ever observed Santos engage in sexual banter and of those who had, none had observed Cruickshank participating with him in sexual banter Fourth, those. employees who did observe the grievor engage in sexual banter gave 9 \ p \ { I examples that were not really sexual in nature. (For example, see page 27 re Margaret Walker) The majority "believe that Cruickshank engaged in sexual banter with Santos in a very quiet, low-key and' passive manner" (page 101) However, there is no evidence to support their ''belief'' In fact, it is contradicted by Santos' evidence that Cruickshank was not shy or passive around him. (page 79) The second ground relied on by the majority for their finding that Santos' conduct was welcome was that "there is nothing in Cruickshank's testimony to suggest that ~ she ever told Santos, by her words or actions, that those sexual solicitations or advances were unwanted, or that she felt personally hurt or threatened by anything he had said or done." (page 102) In my opinion, this is a gross mischaracterization of Cruickshank's evidence. Her evidence shows that on a number of occasions, Cruickshank reacted to Santos' behaviour with eittter words or conduct that clearly communicated her dislike for his behaviour In the first incident, she called Santos "a pervert" and walked away The use of such a pjorative term surely carries the connotation of a negative reaction by her In the fourth incident, she told Santos that if she reported the behaviour he could lose his job Her suggestion that such behaviour could have such an adverse consequence surely implies that she objected to it. After the seventh and eighth incidents, Cruickshank told Santos she would tell his fiancee if he did not stop such pranks. The giving of such a warning clearly indicated that she wanted Santos' behaviour to stop In March or April 1991, Cruickshank pointed out to Santos an article on sexual harassment in a staff newsletter When asked if her tone was serious or joking, she answered "serious" According to her, Santos took her comment to be a joke. Hart's evidence was that she overheard a similar or the same comment by Cruickshank. She thought Cruickshank was serious and she believed that Santos treated it as a joke. Hart gave evidence of additional sexual comment made by Santos to Cruickshank which Hart concluded Cruickshank found offensive. Most comments related to lingerie, creative sex, having children together and an offer to show Ms. 10 \ ( Cruickshank his penis. The majority appeared to dismiss all the above reactions of Cruickshank as ineffective communications. In so doing, they appiy a standard that is far too rigorous and does not take account of the realities of interpersonal communication in the workplace An employee who is an object of sexual harassment is not expected to issue the verbal equivalent of a cease-and-desist order As stated in Re Ottawa Board of Education, 5 L.A.C. (4th) 171 at page 180, "It should enot be necessary ,~ for the female to verbalize her objections to unwanted sexual advances." What is required is that the individual effectively communicate that the harassing behaviour is objectionable. No particular language or formula is required. The communication may be by words, conduct or body language. It may be indirect or even subtle so long as it is effective. The sufficiency of the communication must be judged according to the individual facts and circumstances of each case. The criteria to be considered would include such variables as the general culture of the work environment, the general level of education of employees, and the impressions of other employees concerning the communication. Blunt, even abrasive, language , might be appropriate and expected communication for an employee on an industrial shop floor but would be totally out of place in an environment like the Admitting Department of a hospital which is staffed by professional employees and is charged with the care and treatment of mental patients. In such an environment, one would expect the level of communication to be generally polite and sophisticated. That is the context in which the effectiveness of Cruickshank's reactions to Santos' sexual banter must be assessed. Two night shift employees, Robyn Hart and Helen Gerardi, had the opportunity to observe Santos engaging in sexual banter with Cruickshank. N ei ther of them described Cruickshank as enjoying or reciprocating such banter The impression of these employees is the best gauge of whether Cruickshank's reactions to Santos~ banter were effective in communicating her dislike. Hart stated that there was a friendly atmosphere between Cruickshank and Santos except for some sexual comments he would make sometimes. She also stated that she never heard Cruickshank say anything to Santos about not liking what he said 11 ~ ( ( except for the time she told him he wasn't showing respect for her "But I could tell. I sensed when she didn't like it, even if she didn't show it." (page 35) Helen Gerardi said that, although Cruickshank never told her as much, "it was my opinion she did not like Santos' joking all the time" She once heard her- say to him "Oh, you and your jokes" (page 23) It is clear from the foregoing that two of Cruickshank's peers had no difficulty in - interpreting her reactions to Santos' sexual banter as negative. It is therefore reasonable to infer that Santos had no difficulty discerning that his banter was not wanted. That he avers to the contrary is simply self-serving. Another ground relied upon by the majority for their conclusion that Santos' conduct was welcome is their finding that Santos "promptly" let go of Cruickshank during the tenth incident as soon as she asked him to. While Cruickshank did ask Santos to let go of her, there is no evidence that this was done promptly or even voluntarily In fact, Cruickshank's evidence is that she had to "struggle with all her force" to get away from Santos. (page 46) If Santos had let go promptly when asked, there would have been no need for Cruickshank to struggle. It was the force generated by Cruickshank's struggle that forced Santos to let go of her, not Cruickshank's request that he do so. Thus, contrary to the majority's conclusion regarding this incident, Santos persisted with conduct that was unwanted. Another ground relied upon by the majority for their conclusion that Santos' conduct was welcome is that Santos promptly stopped his sexual bantering and joking after he was asked to do so by Cruickshank during the tenth incident. There is no evidence to support the latter finding. Neither Cruickshank's nor Santos' evidence contained any reference to such a request being made during the above incident. In fact, the majority make the following statement that implies just the opposite: "And after the tenth incident, her conduct was such to reassure Santos that his antics did not affect their friendship, and he heard no protest or complaint from her about his conduct until several months later" (page 101) It should be noted that the foregoing statement of the majority conflicts with Santos' comment during cross-examination that after the tenth incident "I no longer felt comfortable with 12 - -- \ t her" (page 88) If Santos did stop his sexual banter and joking after the tenth incident, (which I dispute), it was, as he said, "not because she had 'asked me to stop" (page 88) Therefore, it could only have been because of the negative character of Cruickshank's overall reaction to his conduct, or, to use his language, because of the way she acted running to the duty doctor in "a weird, bizarre way" (page 88) That after the tenth incident Cruickshank found it necessary to approach her supervisor ~ and ask if shifts could be scheduled to ensure she did not have to work with Santos, suggests that Santos did not in fact stop his sexual banter and joking. Another ground relied upon by the majority for their conclusion that Santos' conduct was welcome is the fact that Cruickshank delayed for so long in officially reporting Santos' conduct as harassing. They imply that the evidence does not support any alternative theory for her official silence In so doing, they are oblivious to much of the expert evidence tendered by Dr Borins. Dr Borins' outlined a number of gender-based theories that explain the reluctance of women to use official grievance procedures when confronted with sexual harassment. (page 64) Many of them apply to Cruickshank. Dr Borins suggested that women may not wish to judge or punish the offender Cruickshank stated that she did not want Santos suspended or fired for his conduct. Dr Borins also suggested that women are socialized to put the needs of others above their own. Cruickshank was concerned that if she reported Santos' conduct, it might adversely affect his relationship with his girlfriend. Dr Borins said that peer group pressure could inhibit victims from reporting harassment where the victim believes her complaint will not be supported by her co-workers. Cruickshank's own explanation for her official silence was that Santos was very popular and that she feared being alienated from her co-workers if she made a complaint against him. (page 48) Dr Logan confirmed that Cruickshank expressed the same fears to him after the tenth incident. (page 38) 13 " ( Dr Borins said traumatic or shock effects often associated with rape, assault or incest could explain delays in reporting the events. The majority find that there was no trauma associated with the tenth incident. This finding, however, is inconsistent with the evidence of both Santos and Cruickshank. Santos said that -after the incident, Cruickshank ran to the duty doctor in "a weird, bizarre way" (page 88) and said something like "help me, help me" (page 82) Cruickshank said she was "confused and mixed up" after the incident (page 47) and also "shaken up" by the ... events. (page 59) It is true that after the incident Cruickshank worked the remainder of her shift. But as Dr Borins pointed out, this is a classic scenario following an assault by a fellow employee. Dr Borins further stated that, although the victim may appear alright, cognitively she may be experiencing confusion because of the shock of the assault. '"": The majority reject a number of other explanations for Cruickshank's official silence in addition to those suggested by Dr Borins. They reject the submission that Cruickshank's silence can be explained as the consequence of her fear of embarrassment (page 103) They base their rejection on Cruickshank's refusal to follow a doctor's instructions to put a patient in restraints, which they say indicates "strength of character" In my view, this is an unfair analogy The situation described above involved Cruickshank's professional ability as a psychiatric nurse. It shows strength of character in a professional context. It does not necessarily indicate strength of character in situations involving social pressures. Indeed, the majority's own description elsewhere of Cruickshank's character as "quiet, low key and passive" (page 101) would suggest that she might very well be vulnerable to such pressures. The majority essentially conclude that the Admitting Room incident involved unwanted touching of a non-sexual nature. They base this conclusion on their finding that there was no contact by Santos with Cruickshank's breasts or, if there was, it was "inadvertent" This finding is derived from a comparison of Cruickshank's oral description of the incident in chief and the demonstration of the incident performed during her cross-examination. In my view, that comparison is factually erroneous in several respects. 14 \ ( First, the majority state that in her "unassisted" description of the incident in chief Cruickshank said nothing about Santos touching or trying to fondle her breasts. While it is true Cruickshank made no express reference to Santos having contact with her breasts, she made at least one statement that can support such an inference. Cruickshank stated that Santos was "grabbing her blouse" during the incident. (page 46) Cruickshank's blouse, of course, was covering her breasts. This statement is therefore quite consistent with Santos having grabbed Cruickshank's bre'asts.Thus ,~ it is unfair to conclude, as the majority do, that Cruickshank's oral description is inconsistent with the demonstration. The demonstration was simply more specific as to the part of her blouse on which Santos put his hands. The majority state that the demonstration illustrated "how Santos' hands might have touched the breasts inadvertently as she struggled to break away from his grip" (page 112) In my view, there is no evidentiary support for this statement. First, while I do not agree with the majority's premise that the "demonstration happened so quickly we did not see clearly how or when her hands moved to the breasts" (page 112), if you accept this premise, how can it be that the demonstration illustrated anything? Presumably, the demonstration revealed no insights into whether the contact with the breasts was inadvertent or not. . The fact of the matter is that the demonstration involved a few simple movements, that it was performed at a speed that made observation easy for persons with normal powers of observation, and that none of the panel members nor MrColeman expressed any dissatisfaction at the time with any aspect of the demonstration including its speed The'speed with which the demonstration was performed was not one of the "concerns of the Board" put to the parties on October 24, 1994 and set out at page 17 herein. Nor did Mr Coleman see fit to raise the matter in his final argument. Nonetheless, the majority now wish to raise it as a concern. In my opinion, it is unfair to raise the matter now as final argument has been closed and the employer is, therefore, precluded from dealing with it. I am surprised by Mr Waisglass' comment that I have "not specified" my views of the demonstration (page 59) I submit that, notwithstanding his statement to the 15 \ { , contrary, the majority are well aware of my views of the demonstration and have been for some time. After all, we had several ad hoc discussions on the subject during the course of this case. There were at least two formal executive sessions in the fall of 1994 where the subject, among others, was discussed. Moreover, on November 23, 1994 during Mr Coleman's oral argument, I illustrated by means of a demonstration of my own my views concerning the demonstration involving Ms. Quick and Ms. Cruickshank. ~ The majority describe the demonstration at page 59 Their description does not contain sufficient detail to be fully descriptive. The following more adequately describes what happened during the demonstration. Quick and Crt,tickshank stood approximately a foot apart. Quick was in front of Cruickshank with her back to Cruickshank. Cruickshank was facing Quick. Cruickshank momentarily put her hands on top of Quick's hips. Then Cruickshank moved her hands up along both sides of Quick's rib cage and placed them over Quick's breasts while Cruickshank's elbows were against Quick's hips. During the demonstration, I had no difficulty in observing how Cruickshank's hands moved towards Quick's breasts. Moreover, there was nothing inadvertent about the movement. I am, therefore, at a loss to understand how the majority can say that they did not see clearly how or when Cruickshank's hands moved to Quick's breasts. The majority refer to Cruickshank's "unassisted" description of the incident in chief. (page 59) This implies that during the demonstration Cruickshank was "assisted" in some manner That, of course, would have been completely improper In my view, the issue of the propriety of the demonstration should have been addressed directly, and not indirectly, by the majority To fully canvas the issue of the propriety of the demonstration, it is necessary for me to outline the following chronology of events. 16 \ t. " At the commencement of the hearing at which Ms. Quick was originally scheduled to begin her argument, the Vice-Chair read the following list of "concerns of the Board" and asked the parties to deal with them in their arguments. 1 "What, if any, express references are there in the complainant's oral description in chief of the alleged sexual assault in Admitting on the night of July 19-20 to contact between her breasts and the grievor? .~ 2. During her demonstration of the alleged sexual assault in Admitting on the night of July 19-20, was the complainant in any way led, or ~" otherwise improperly assisted, by counsel for the employer into saying that the grievor was trying to fondle her breasts? 3. What, if any, contradictions are there between the complainant's oral description in chief of the above alleged sexual assault and her demonstration of the same alleged sexual assault? 4. Is there anything in the complainant's testimony to establish that she ever made an effort to clearly communicate to the grievor or to any person in authority that she found his comments or conduct sexually harassing prior to the day before she wrote the letter to the head nurse dated October 9, 1991? 5. Does the complainant's own description in chief of the alleged sexual assault in Admitting on the night of July 19-20 indicate that the grievor let go of the complainant promptly as soon as she asked him to stop?" In response, Ms. Quick said she was taken by surprise and asked for an adjournment in order to reformulate her argument. This was granted. On October 24, 1994, Ms. Quick presented written and oral argument. At no time during the course of her argument did the Vice-Chair challenge her submission that she did not lead or improperly assist Ms. Cruickshank during the demonstration of the July 19-20 incident in Admitting. 17 -- On November 23, 1994, Mr Coleman presented written and oral argument. Mr Coleman's written argument contained a submission that Ms. Quick had improperly assisted Ms. Cruickshank during the above demonstration but presented no factual particulars of such improper assistance. I, therefore, asked Mr Coleman to orally give such particulars. In response, he said that during the demonstration Ms. Quick's hands came in contact with Ms. Cruickshank's hands and then guided Ms. Cruickshank's hands to her breasts. .~ Ms. Quick then stated that she had done no such thing. I stated that I had observed no such thing on the part of Ms. Quick. The Vice-Chair stated that he had observed such a thing on her part. Mr Seymour read aloud excerpts from motes he made during .the demonstration and they did not indicate any impropriety by Ms. Quick. The majority have not made any express comments in their decision but they have, by implication, raised the issue of the propriety of Ms. Quick's behaviour during the demonstration. Given that this issue was placed before the parties at the initiation of the panel, the issue should have been dealt with directly by the majority In my view, there was no assistance offered by Ms. Quick to Ms. Cruickshank during the demonstration. Indeed, Ms. Quick was incapable of doing so in that her back was to Ms. Cruickshank. It is interesting to note that the majority's inference that there was inadvertent contact between Santos' hands and Cruickshank's breasts is actually contradicted by Santos' evidence. Santos was insistent that "the only physical contact was my hands on her hips" (page 83) Another factor taken into account by the majority in finding that the tenth incident involved physical contact of a non-sexual nature was the evidence of Dr Logan. Dr Logan said he had the clear impression that a sexual assault had taken place. Notwithstanding that Dr Logan is a psychiatrist and presumably skilled and experienced in interpreting behaviour and body language, the majority are not prepared to give any credence to his impression. Their only rationale for doing so is their belief that if Dr Logan's impression was genuine, he would have "reported" a 18 - \ ( sexual assault. With respect, this rationale is without merit. There would be no point in Dr Logan reporting a sexual assault on Cruickshank to either management or to the police if Cruickshank were not prepared to confirm it. Inde'ed, if Cruickshank were not prepared to confirm it, Dr Logan might expose himself to possible criminal or civil liability In my view, the overwhelming weight of the evidence compels the concluSion that the tenth incident involved unwanted physical contact of a sexual nature. This is .~ especially $0 having regard to the second branch of the Faryna v. Chomy test. That requires that the evidence of a witness be scrutinized according to its consistency with the reasonable probabilities inherent in a given situation. It is my view, for the reasons hereinafter set out, that Santos' version of the tenth incident cannot ~ withstand such scrutiny Santos says that he placed his hands lightly on Cruickshank's waist and theorizes that, either she may have thought he was holding her more tightly than he actually was at the instant she struggled to break away from him, or, she was surprised by his touch and stumbled. (page 94) In my view, neither theory is plausible. The first theory begs the question of why Cruickshank struggled to get away from him if his grip was light. Surely, there would have been no need for her to struggle out of a light grip The second theory is not consistent with Santos' version of the type of relationship he had with Cruickshank. Santos said he was confident in his friendship with Cruickshank, that she would understand and accept him as a friend who was just joking around in his usual way, without any sexual intentions. (pages 94 and 95) If Santos was just joking around in his usual way, there was no need for Cruickshank to be so surprised by his iighthearted touch that she would stumble and fall. The fact Cruickshank was surprised and stumbled would suggest that Santos was not acting in his usual manner That, in turn, would suggest that horseplay involving physical touch was not Santos' usual way of behaving around Cruickshank. The reasonable probabilities all favour Cruickshank's version of the tenth incident. As to the tightness of Santos' grip on Cruickshank, it is important to note that, 19 .~- ~ ( according to both their versions, Cruickshank was moving toward the door when Santos' hands made contact with Cruickshank's waist. As Cruickshank was in motion, Santos likely would have been unable to stop or even slow down her motion with a "lighthearted touch" He would have had to use a fairly tight grip I This is consistent with Cruickshank's version that she was grabbed by Santos and held tightly A tight grip by Santos is, in turn, consistent with Cruickshank's statement that she had to struggle to force Santos to break his grip A struggle by Cruickshank is, in turn, consistent with her story that she stumbled when Santos .- released her from his grip. I The version of the tenth incident favoured by the majority has the peculiar quality of being supported by neither Santos' or Cruickshank's evidence. Their version is that Santos held Cruickshank more tightly than he thought, but not so tightly as she thought~ (page 111) I submit that if Santos' grip was tighter than he thought, then cle~ly it was not the "lighthearted touch" that Santos described. (page 94) If the grip was not as tight as Cruickshank thought, then why did she have to struggle to break the grip? Santos emphatically and emotionally insisted in his testimony that the way he , touched Cruickshank's waist was not inappropriate "not in the way I touched her and not in those circumstances" (page 94) Notwithstanding Santos' protestations to the contrary, the majority find that his actions were inappropriate and unwanted. They further find that he was mistaken in his judgement that his actions would be acceptable to .Cruickshank and taken in jest. (page 113) Yet elsewhere in their award the majoJ:'ity appear to accept that Santos had developed a very finely tuned judgement as to the tolerances of his peers for sexual joking, including Cruickshank. (page 101) One is left to wonder why Santos' much-vaunted judgement failed him only on this occasion and not on any of the other occasions when Cruickshank alleged he acted inappropriately toward her The fact of the matter is that if Santos' judgement was faulty in the Admitting Room incident, then there is every reason to believe that it was faulty in other situations. After all, the Admitting Room incident was really a "no-brainer" It didn't really require much judgement. As the majority clearly state, 20 \ ( I .. "it was horseplay that had gone too far beyond the bounds of propriety" (page 113) Surely a person with any degree of street-smarts would know that a person like Cruickshank, who ranks as 2 on a scale of tolerance for joking, where 0 indicates I zero tolerance, would find physical horseplay uncomfortable. The only inference to be drawn was that Santos knew that his behaviour was inappropriate but did it anyway I cannot accept that Santos' conduct on the above occasion was an aberration. In my ~ opinion, it reflects a deeply ingrained character trait and one that was displayed on the numerous earlier occasions described by Cruickshank in her evidence. If Santos - had, at least, admitted his misdeeds and apologized for them, I might have been disposed to view him in a more favourable light. After all, he has significant service with the employer, a_dear discipline record and, by all accounts, performs his job in a very professional manner But in the absence of remorse, there can be no reasonable expectation that Santos will reform the behaviours that led to this grievance. In fact, Santos, towards the end of his testimony made an emotional statement that indicated clearly that he was incapable of change. After the Vice- Chair asked Santos to stop making extraneous comments and answer questions directly, Santos looked at the panel and defiantly stated that ''1 am what I am and I can't change for you. That's the way I am. You have to accept me." The majority claim to have considered the principles of corrective discipline in arriving at a three-day suspension. However, it does not appear that much consideration was given to one of its central principles, e.g. that of deterrence. In my view, a three day suspension does not send a sufficiently strong message to employees about the seriousness of sexual harassment. In fact, it sends exactly the 9Pposite message. It implies that the Grievance Settlement Board is soft on sexual harassment. In my view, this Board should have sent a clear message that its approach to sexual harassment is that of zero tolerance. Zero tolerance does not necessarily require the penalty of discharge in every case where sexual harassment is established. It does, however, require a grievor to clearly demonstrate that he can rehabilitate himself and repair the damage done to the workplace environment by his misconduct. Such a demonstration was conspicuously absent in the case of this grievor 21 \ ( , The majority attempt to justify their imposition of a three-day suspension by stating that it is not inconsistent with standards of discipline applied by the employer to more serious offenses of sexual harassment committed by managerial personnel in the same Ministry and referred to in the Courtney and Anderson cases. (page 115) In my opinion, the sexual harassment found by the panel in Courtney was less serious than that committed by Santos because it did not involve allegations of - sexual assault. The original management decision in Anderson was considered inappropriate by the panel who heard the case and ultimately substituted their own remedy In my view, the appropriateness of any penalty must be determined in light of the particular facts of the case. A management decision which was challenged and ultimately determined to be inappropriate is an irrelevant consideration. The majority state that Santos, unlike Fawcett, was not in a position of power or authority I submit, however, that as a security officer, Santos had power over the com plianant' spersonal safety Such power carries with it at least an. equivalent authority to the economic power of a supervisor The majority state that Fawcett's misconduct was less serious than Santos' It is my opinion, however, that Fawcett's misconduct is comparable to Santos' because it involved an incident of unwanted physical contact and incidents of verbal harassment and potential reprisal. Having regard to the foregoing, I would have dismissed the grievance. The majority conclude that there were undue and unreasonable delays by the employer, first, in initiating and completing its investigation and, second, in dismissing Santos after the investigation was completed In reaching this conclusion the majority appear to rely exclusively on the length of time that elapsed from the filing of Cruickshank's initial complaint to Santos' discharge, namely, more than five months. To quote the majority, "after the employer had taken such 22 \ \ a long time to assess Cruickshank's allegations, Santos is entitled to assume either that his conduct is condoned or that the allegations cannot be substantiated." (page 118) In my view, the majority erred in law both in considering the issue of undue delay and in reaching the q::mclusion that they did. My reasons are as follows. First, the issue of undue delay was not raised by the union until final argument. In my opinion, this issue should have been raised by union counsel in his opening statement on three grounds. ~ First, the grievor was fully aware from the time of his discharge of the period it took for completion of the investigation and for its review by the employer The majority are, therefore, in error when they state at page 116 that "the facts of the delays, as well as the logical implications of those delays upon the merits of the employer's dismissal action, were revealed and clarified as the employer's evidence unfolded through the prolonged hearings" Second, the issue of delay is properly a preliminary issue. If it had been raised at the outset and resolved in favour of the union, it would have obviated the need for a hearing into the merits. To entertain the issue of delay at the end of the hearing, is an abuse of process as the union, in effect, is asking the Board to find that it has wasted its time. hearing the merits. Here that amounts to what could only be described as a profligate waste of public monies since there have been 27 days of hearings spanning approximately one-and-one-half years. Therefore, in my view, it is much too late in the day for the Board to consider the issue of delay Third, by not raising the issue of delay until final argument, the union has prejudiced the employer's defence to the grievance. If the issue had been raised at the outset, it might well have affected the evidence called by the employer For example, the employer might have seen fit to call the actual decision-maker to testify as to the time that was necessary for the completion of the investigation and the review of its findings Now that its case is closed, the employer has no opportunity to supplement the evidence it originally adduced. Tha t evidence consisted of the testimony of the investigator, Mr Yetman. He testified that his investigations lasted two-and-a-half months He was not cross;..examined on -- 23 \ ( whether that period was necessary In my view, an adverse inference should be drawn from the failure of the union to so cross-examine Mr Yetman. The Board should infer that, had Mr Yetman been asked, he could have justified the time his investigation took. Given the complexity of the issues and the number of witnesses heard by this Board and the fact that the hearings of this Board spanned one-and-one-half years, it is submitted that it is patently unreasonable to suggest, as the majority do, either that - the two-and-a-half months it took to complete Mr Yetman's investigation into the same issues and the same witnesses was undue, or that the month or more it took - the employer to review Mr Yetman's report and come to a decision, was undue. The majority err in their interpretation of Article 27 of the Collective Agreement. They state at page 117 that "the Collective Agreement gives the grievor a substantive right to prompt investigation and determination of the allegations made against him, without undue or unreasonable delay" In fact, Article 27 only deals with the time limits for the filing and processing of grievances. The only right that Article 27 confers on Santos is to have his grievance processed by the employer in accordance with the time limits in Article 27 It in no way governs the procedures to be followed by an employer in imposing discipline. . The majority purport to "condemn" the employer "for its indifference to the harm and pain it caused both complainant and grievor by its failure to respond promptly with an investigation and decision on the complainant's allegations." (page 118) Yet the majority saw fit to issue an interim award providing for reinstatement of the grievor without in any way addressing the central issue of whether the grievor sexually harassed the complainant. It seems to me that this shows a complete lack of concern for the feelings of both the grievor and the complainant. After all, Santos, near the conclusion of his testimony, said that the case was about "clearing my name, not getting my job back" And, of course, Cruickshank made it clear that she wanted justice. In my opinion, the majority hold the employer to a higher standard of conduct than they impose on themselves. As such they are guilty of hypocrisy for which they deserve to be "condemned" 24 Froq\ the outset this case was marked by a very adversarial tone between Ms. Quick and Mr Coleman. Both counsel, no doubt, contributed equally to this tone. In addition to the rivalry between counsel, a friction of sorts developed between Ms. Quick and Mr Seymour There were frequent skirmishes involving the above three players, usually over procedural and evidentiary issues. These skirmishes followed a more or less regular pattern. One or the other counsel would object to the introduction of certain evidence. An exchange of submissions between counsel would then follow Often, Mr Seymour would find it necessary to supplement Mr ~ Coleman's submissions with rebuttals of his own. An argument would then ensue between Ms. Quick and Mr Seymour The Vice-Chair would then try to mediate a ~. resolution of the issue and failing that, would make a ruling. This process at times could become very protracted and acrimonious, resulting in a wastage of valuable hearing time. In my view, Mr Seymour must accept some responsibility for initiating the above state of affairs. Notwithstanding that the grievor was represented by very able counsel, he acted at times as if he were co-counsel for the grievor While Mr Seymour has a proper role to play in protecting the interests of the grievor, it does not extend to playing the role of advocate for the grievor To do so is incompatible with the principal function of a panel member which is to assist the Vice-Chair to . adjudicate. Ms. Quick's procedural strategy for the conduct of her case is the subject of negative comment by the majority As they mention, the testimony of the initial witnesses called by Ms. Quick dealt primarily with background matters, especially the employer's sexual harassment policy Very early on Mr Coleman objected several times that this evidence dealt with matters that were non-controversial or irrelevant. (Notwithstanding the nature of his objections, Mr Coleman, in the case of almost every witness called by Ms. Quick, asked for a break at the end of examination in chief in order to prepare his cross~examination. Moreover, Mr Coleman cross-examined each witness at length.) Mr Seymour, of course, did not hesitate on several occasions to express his impatience with Ms. Quick's strategy The Vice-Chair, while being careful to respect Ms Quick's right to determine the conduct of her case, basically expressed sympathy for the position of Mr Coleman. 25 -' While it is permissible, and even desirable, that a Vice-Chair express opinions on matters such as the above, I believe that this Vice-Chair may have allowed himself to become frustrated with Ms. Quick's strategy and then may have let that frustration influence his view of certain of the evidence called by Ms. Quick. For example, frustration seems apparent in the following comments Mr Waisglass makes at page 11 regarding Ms. 'Quick's reasons for delaying calling Cruickshank until the end of her case. "Now that we have heard Cruickshank's testimony, we -~ understand why she was not presented as a witness much earlier We found her to be a reluctant complainant and an uncomfortable witness who was displeased and upset by the prolonged process, particularly the employer's delays and apparent disinterest in resolving her initial request." In my view, the above description of Cruickshank's performance as a witness is quite unfair and, in fact, is inconsistent with other comments Mr Waisglass makes about Cruickshank's demeanor as a witness. At page 105 he says "we agree that on first impression Cruickshank presented herself as a very credible witness who was articulate and gave her evidence in a reserved but direct manner" I would submit that any reluctance or discomfort shown by Cruickshank was completely consistent with the testimony of sexual harassment complainants in general. -- In my opinion, the scope of the employer's motion to reopen its case is not as narrow as viewed by the majority As originally framed by the employer, the motion was for the purpose of producing evidence of the reasons of the decision- maker for dismissal. By inference this could have included the letter of termination, the report of the investigator referred to therein, together with the viva voce evidence of the decision-maker The scope of the motion was limited in that Ms. Quick said that she would not add to the reasons given in evidence by the employer before it closed its case. That evidence consisted of a number of factual allegations of sexual harassment by the grievor But the reasons of the employer for dismissal are not confined to the factual allegations of misconduct They also comprise the rationale of the employer, based on the principle of progressive discipline and any other relevant considerations, for imposing the penalty it did. Therefore, if the motion had been granted, the employer would have been free to call evidence as to why the factual allegations of sexual harassment upon which it 26 I relied were sufficiently serious to justify discharge. Such evidence is frequently heard in discharge cases. It goes directly 1'0 the merits of the employer's case or whether there was just cause. Accordingly, it is erroneous to suggest, as the majority do, that Ms. Quick restricted her motion from dealing with just cause. Ms. Quick explained her failure tocaU the above evidence during her case in chief as a matter of inadvertence. I agree with the majority that this explanation is not appropriate as her failure resulted from a deliberate decision on her part. That ~ decision, however, stemmed from certain remarks the Vice-Chair made in the course of the hearing regarding the quality of evidence the Board was interested in receiving. Those comments were wrongly interpreted by Ms Quick. Her interpretation was clearly a mistake and it was that mistake that led to her decision not to call certain evidence. Ms. Quick's motion to reopen her case presented this Board with an opportunity to undo the effect of Ms. Quick's mistake. This would have entailed no real prejudice to the union as the union had only commenced its case in the most technical sense, e.g., by the introduction of a few non-controversial documents. The majority in their reasons make no mention of natural justice considerations. Rather, they focus exclusively on a test applied by criminal courts for permitting the Crown to reopen its case. It is a very rigorous test. However, it is well-established that boards of arbitration are not bound by the rules of evidence applied by the courts. Moreover, the policy reasons that led to the development of the above test reflect the seriousness of the sanctions that a criminal court can impose. Different policy considerations apply in labour arbitration. Here the grievor is not on trial and is not faced with loss of any civil rights if his grievance is dismissed. It is well-established that the jurisdiction of an arbitration board is remedial, not punitive. In exercising its remedial jurisdiction, the Board is primarily concerned with the viability of the employment relationship in light of all relevant circumstances. That question should be central to the minds of an arbitration board in dealing with a motion to reopen. It is apparent from the reasoning of the majority that that question was far from central to their minds when dealing with 27 ';:>. Ms. Quick's motion to reopen. Their concern was only whether there was some oversight or inadvertence by Ms. Quick and whether there was any prejudice to the grievor While the former may not be irrelevant, it surely is not pivotal. Concerning the latter, the majority do not specify how the grievor would have been prejudiced. In my view, there was no prejudice as the grievor had not started his case Alternatively, if there was a prejudice, it was more than curable by an adjournment ~ In the course of his argument regarding his motion for non-suit, Mr Coleman made specific reference to the failure of the employer to call the decision-maker as a witness. I therefore asked Mr Coleman during his argument regarding Ms. Quick's motion to reopen, whether he intended in his final argument on the merits to make further submissions regarding the consequences of the above failure. Mr --- Coleman indicated that he might well do so. In my view, the majority gave no consideration to the consequences for the employer if Mr Coleman did revisit the above subject in his final argument. Mr Coleman, in fact, did so indirectly He submitted in his final argument that the discharge of the grievor was invalid on the ground of undue delay The evidence of the decision-maker would clearly have been relevant to this issue. Yet the effect of the majority's ruling was that the employer was barred from calling the decision-maker or any other witnesses. It is a fundamental tenet of natural justice that a party is entitled to full opportunity to meet the case against it. Here the effect of the majority's ruling was that the employer was denied that right. In the result, there was a denial of natural justice as the majority ultimately gave effect to Mr Coleman's submission. In conclusion, the majority followed a far too technical and narrow approach in dealing with Ms. Quick's motion to reopen. This approach is quite out of place in a labour arbitration proceeding for the reasons so aptly stated by Blair, J.A. in Re City of Toronto and Canadian Union of Public Employees, Local 79, 133 D L.R. (3rd) 94 at pages 107 and 108: "The purpose of arbitration of grievances under collective agreements is to provide an expeditious and fair method of settling disputes which 28 ~ experience has demonstrated are much better solved in this fashion than by complex judicial proceedings. Most arbitrators are laymen who bring the benefit of their experience to the practical solution of complex human problems. Courts consistently have recognized the special role of arbitration boards and have been loath to interfere with their decisions or proceedings. It is, therefore, surprising to observe the extent to which arbitration awards purport to deal with complex questions of law - Many arbitration board decisions cited to us contain scholarly dissertations on important substantive and procedural rules applicable to judicial proceedings. They exemplify the extreme legal formalism and adherence to technical rules which overhangs the arbitration process. At best, these elaborate legal studies may be irrelevant because boards are not bound in their procedure by technical rules of law and procedure. At worst, they can cause delay and unnecessary expense and, as the argument in this appeal demonstrated, they could obscure the real issues confronting an arbitration board and confuse it in the performance of its duty While it may be helpful for an arbitration board to seek guidance by way of analogy from established legal procedures, they risk committing jurisdictional errors by rigid adherence to them." Having regard to the foregoing, I would have allowed the employer's motion to re- open its case. Dated at Toronto, Ontario this 28th day of April, 1995. 772'1 ()!:JJo f M.F O'Toole - Employer Member 29 " ... 'i~'~- I~ 974/92 O.P.S E.U_ (SANTOS) - and - THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF HEALTH) ADDENDUM Edward E. Seymour, Employee Nominee -- I am in agreement with the decision as outlined in the main Award, however, I do find it necessary to address a number of matters which cause me concern . The Panel, particularly the Vice Chairman, and on several occasions this Member, expressed concerns that little of the Ministry's presentation appeared to be on point in that much of it was hearsay Development, Implementation, Endorsement of the Program on Sexual Harassment. While this Member commends the efforts which went into the development of the Policy, the implementation and enforcement of the Policy are less impressive The Ministry expended considerable effort developing a sexual harassment policy Considerably less time and effort were expended articulating that POlicy to the workforce. Developing a policy, printing it on expensive-looking, glossy paper, and circulating it in the pay envelope is simply not adequate to increase awareness, particularly when attempting to change attitudes There was little byway of evidence from the Ministry's own witnesses to show that all employees received the POlicy, read the POlicy, understood its meaning, or understood the consequences of violating the POlicy Other than spot-Checks, there was no evidence to suggest the -- - - ~~._- I Page 2 Ministry monitored its workforce to determine if the Policy was effective Certainly the Ministry's witnesses did not portray any insensitivity to the issue of sexual harassment In reality, despite two or more days having been spent addressing the issue, most of the evidence supported the griever's contention that he did not receive any material, and in reality, most of the material was developed and circulated after he was discharged The Ministry's own evidence supports the likelihood that Mr Santos ~ neither rec~ived any sexual harassment material, nor attended any sessions related to the Policy either The implementation of the Policy, particularly as it, related to the QSMHC, in my view, was wholly inadequate a.,i. Sexual Banter in the Workplace Considerable time was expended addressing the sexual banter issue, and I am in complete agreement with the main Award that banter was a common occurrence in the workplace, however, no-one with any managerial authority did anything constructive to address it They did not express any concern or displeasure about Mr Santos's comments to Ms. Cruickshank or to anyone else From the evidence . of the Ministry's own witnesses, they were aware sexual banter was common Ms Doumani was aware of it, as was Mr Cyfko From the evidence, there is no doubt Ms. Cruickshank was not as actively involved in the banter as were others, but she was present when it occurred, and several witnesses t~stified they were present when Mr. Santos was engaging in the banter with her It is agreed some witnesses testified she expressed displeasure to them about the comments, but neither they nor she addressed the issue with Mr. Santos in any meaningful way j) Page 3 Several of the witnesses, while stating Mr Santos had engaged in sexual banter, also expressed the view that had he stepped over the line they would have addressed it with him There is absolutely no question sexual banter took place in the workplace, nor is there any question that Ms Cruickshank, along with others, was present when it occurred, and there is also no question that no-one, including Management, told Mr Santos in any serious way that his comments were offensive .~ Ms. Cruickshank and Mr. Santos throuqh the eves of their co-workers ..... Management's Counsel explored in some considerable detail how the witnesses perceived both Ms. Cruickshank and Mr Santos There is absolutely no question from their evidence, both were very popular, but in different ways It is not an exaggeration to suggest that Mr Santos was viewed as a "back-slapping, more gregarious indivi- dual, " while Ms Cruickshank was viewed as a quiet, reserved person, who, while not outgoing, was well respected. We, as a Panel, observed that Ms Cruickshank was a radically different from the Ministry Counsel attempted to . person one portray. Ms Quick's version was that of a timid individual The person who testified for approximately four days, two days in direct examination and two days in cross-examination, was certainly not timid Apart from his problems with Ms Cruickshank, there was absolutely nothing in the evidence from Ministry witnesses which would suggest Mr Santos was not well liked at the QSMHC by all who knew him. It was equally true for Ms Cruickshank Both were well liked and highly respected Considerable time and effort were expended through numerous witnesses addressing sexual banter and the Sexual Harassment v () Page 4 ?olicy, little of which brought us any closer to determining what actually occurred between Ms Cruickshank and Mr Santos Certainly the Ministry witnesses held both Mr Santos and Ms Cruickshank in the highest regard They, almost to a person, were able to distinguish Mr Santos was more outgoing and gregarious, while Ms Cruickshank was the more quiet and sedate For the witnesses this did not present a problem. To them, it didn't mean Mr Santos was any more popular than Ms Cruickshank in their view None of the witnesses tho\.1ght any less of Ms Cruickshank because ~ she did not engage in social activity outside the workplace They had no difficulty accepting .or respecting her desire not to participate in that sort of activity Staff would lie to protect Santos Another theme which prevailed throughout the Ministry's presenta- tion was that security staff and others would lie to protect Mr. Santos It was intimated security officers would falsify reports to protect one of their own It was intimated that because people socialized outside the workplace, they would lie for no other reason than to protect Mr Santos These people included Dr Harrison and Mr. Switek, who is also an RCMP officer There was not a sinqle shred of evidence that Mr. Santos and other security officers falsified the Activity Reports or Occurrence Reports. In the absence of any evidence to disclose any impropriety over the manner in which security officers filed their Activity Reports, this speculation can only cast disrepute on the entire security staff at QSMHC This line of questioning would have been acceptable had the Ministry, in its presentation, given examples of falsified reports, however, there was none ~ - " Page 5 This was not a situation where the questioning was done to set up or establish a fact which the griever would be called upon to justify or deny There was absolutely nothing in the evidence of any of the Ministry's witnesses which could sustain the Ministry's I proposition the security staff, nursing staff or Administrative staff acted improperly It was an effort which not only impugned the motives 'of the griever, but also the motives of many with whom he was associated ~ Who could drop in unexpected Iv to the Admittinq Area? Ministry Counsel, in her opening statement, stressed that Ms Cruickshank worked in an isolated part of the hospital and conse- quently, was extremely'dependent on the security staff, therefore, it is necessary to address how isolated the location was, even on the 11 p m to 7 30 a m shift Certainly from the evidence, the Admitting Area is not quite so isolated as Ministry Counsel suggested. Anyone of the following could, and did drop into Admitting any time at night . - Any of the three security staff, while I am aware Ministry Counsel suggested the other two security staff could conspire with Santos to ensure they would not drop in on Admitting while Santos was there, it is nothinq more than a suqqestion Absolutely no evidence was called which could, in any way, prove they did this on the evening of July 19, or on any other occasions Absence of any proof to cast any suspicion on Mr Welsh or Mr. Kerr, Ministry Counsel's hypothesis is nothing more than speculation - Dr Logan could, and in fact did drop in unexpectedly He could have done so at any time I Page 6 - Mr Cyfko could also drop in at any time, and his very own evidence is conclusive that were he to be called to the ward, or to get medications, he could pass through Admitting, and absolutely no-one would know he was I coming - Patients could, and did come to the Admitting Area alone, and accompanied by police Their arrival was clearly visible to the Admitting staff, and presumably Admitting ,- staff would be clearly visible to them The evidence of both Santos and Cruickshank was to the effect that Admitting was quite busy on the night of July 19 " The Admitting Area is, in effect, "a fish-bowl," with glass windows, panic buttons and easily viewed from the outside I agree entirely with Union Counsel, Mr Coleman, that if Mr Santos were to select any place to launch a physical assault against Ms Cruickshank, he could not have selected a more inappropriate location, even on the 11 p m to 7.30 a m. shift. The Investiqation into the Alleqation In his opening statement, Union Counsel said the Ministry was suggesting the Union was responsible to others about the sexual harassment issue, and it was the Union's position that the Ministry dealt with Mr Santos in a harsh way as an example to others rather than on the merits of the case He termed the Ministry's approach as one in which the Ministry effectively said, "We will shoot him, throw him on the front lawn, and everyone will be educated about sexual harassment " The motivation for the Ministry's approach to sexual harassment can best be seen in Ms Ricci Gruschow's evidence It was "her view that in cases of sexual harassment, as with other matters, the Page 7 punishment should fit the crime 11 In a serious case, she said, re- instatement was not appropriate She said that if a serious complaint was substantiated, the impact of putting a person back into the workforce would affect credibility She said, l1it would be a strong message that you condone inappropriate behaviour, and the people affected would not complain, and people conducting the harassment would continue 11 She said it would completely negate the Policy and imply inappropriate behaviour was condoned by the Ministry It would, she said, have an impact on morale and .~ producti vi ty, and would make complainants feel it was not workable, and give people free rein to escalate their behaviour if there were no consequences for their actions Ms. Gruschowsaid the riqhts of the harasser were also addressed in the Policy to ensure that people urtderstood it was a neutral process The Ministry's Investigation could not, in any way, be regarded as a neutral investigation, and the failure to conduct a proper investigation also severely impacted on the credibility of the Ministry's Policy The Ministry accepted Ms Cruickshank's allegations in their entirety, and completely ignored her wishes on how she wanted the matter addressed. I completely accept that it is the Ministry's full right to disci- pline as it deems necessary according to the severity of the offence committed This, however, should be done after there is as obiective an investiqation as possible to determine what actually occurred In my view, that did not occur in this situation. +t is useful to compare the treatment both Ms Cruickshank and Mr. Santos received as the events began to unfold . Ms. Cruickshank speaks to different individuals, and finally speaks to Ms Vita Clark Adamson . Ms Vita Clark Adamson, quite correctly in my view, examines the Sexual Harassment Policy and encourages Ms Cruickshank to I, Page 8 put her concerns in writing, and Ms Cruickshank complies (Exhibit 8, October 9,) two and a half months after the last incident . Ms. Vita Clark Adamson and Ms Cruickshank both go to see Ms. Gisela Albrecht, and Ms Albrecht says we have to go to Mr Frost, who is Mr. Santos's Supervisor At this meeting, Ms Albrecht discloses to Ms Cruickshank that a number of women have been complaining about Mr Santos harassing them. (No -~ evidence was presented during t-he entire Hearing to substantiate these allegations.) . Ms Albrecht and Ms Cruickshank go to see Mr Frost Cruickshank adds more details, and Frost bangs his fist on the desk and says, "Okay, he is fired " (This occurs without asking Mr. Santos for his version of the allegations ) . Without disclosing the reasons, Mr Frost informs Mr. Santos that they have to go to Personnel He engages in small talk with him, says nothing about the allegations, and escorts him to Sue Ellen's office. Sue Ellen informs him he has been . accused of sexual harassment There is no Union Representative present Mr. Santos asks for the identity of the individual who complained, and is given no details about the allegation. Mr. Santos is suspended pending an investigation . The same day, Ms. Sue Ellen meets with Ms. Cruickshank, informs her Santos was suspended and says Ms. Cruickshank may have to leave her ;ob, but qives no details why . Through the efforts of the Union, Mr Santos returns to work because the Union argues it is unfair to have him suspended when the allegations haven't been investigated Page 9 . Mr Santos returns to work following four or five weeks' absence and receives full compensation, only to discover no investigation has commenced, and he files a grievance requesting the appointment of an independent Investiqator . Three days following the filing of the grievance requesting the investigation, Ms. Cruickshank files a formal complaint . The Investigator is appointed, has three meetings with ~ Cruickshank, and two with Santos. . It is through the Investigator that Mr Santos finds out who his accuser is, five and one-half months after the Admitting Room incident, the last incident, and one and a half months after the suspension. . Both Cruickshank and Santos express concerns about Mr Yetman's methods of investigating (It is clear from the evidence that Mr. Yetman himself was not certain what a number of his entries meant ) . The investigation commences in December, and lasts for ,two and a half months. The Report is released in March, a copy of which ~s sent to Cruickshank, but Santos is forced to get his from the Freedom-of-Information, and many portions of what he receives are censored I Following the release of the Report, Frost telephones I . Mr Santos and asks him to attend a meeting with Allison Stuart He agrees to the meeting at a mutually-agreeable time. Santos is heading to the meeting, only to hear from his Union Representative that he will be fired. He gets angry, goes to Administration, throws the keys on the counter and does not attend the meeting - -~ Page 10 . Throughout the Hearing, we heard considerable evidence on the development and implementation of the Sexual Harassment Policy, even though its existence was not contested by the Union (two days minimum. ) We heard considerable evidence .regarding banter, both sexual banter and otherwise, in the workplace, at the end of which it was clear that witnesses engaged in the banter to varying degrees, including Ms Cruickshank There was evidence from other witnesses, i e. Mr Ted Cyfko, who said they did not hear or see it " personally, but they were aware it occurred. There was never any Managerial directive stating the behaviour was unaccep- table Every witness who testified and knew both the griever