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HomeMy WebLinkAbout1992-2878.Fitch.95-08-03 ------.------. .~ 'i- I ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO . GRIEVANCE ( COMMISSION DE 1 , I r: I 1111 SETTLEMENT REGLEMENT Gi -:.' . BOARD DES GRIEFS F " "\ 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHDNE/T~LEPHONE (476) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G IZ8 FACSIMILE /TEL~COPIE (416) 326-1396 J GSB # 2878/92 OPSEU # 92H126 ) IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before \ THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Fitch) Grievor - and - 1] 1] The Crown in Right of ontario (Ministry of Health) Employer Vice-Chairperson ) BEFORE N Dissa,nayake E Seymour Member ( F. Collict Member FOR THE C. OiFranscesco GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE P Whalen EMPLOYER Barrister & solicitor HEARING September 7, 1993 January 13, 1994 February 3, 7, 16, 24, 1994 March 4, 31, 1994 July 19, 20, 25, 1994 February 20, 1995 ( ( - --- ,t" ~i'" \ \ 2 DECISION The grievor l'1r Graham Fitch worked on a part-time basis with the employer, uxbridge Stouffville Ambulance Service for \ about eight months in the years 1988-89. Then he 'left and rejoined in September 1990 as a full-time Emergency Medical Attendant commonly referred to as an ambulance officer. The employer operates an ambulance service out of two bases, one at Uxbridge, ontario and the other at stouffville, ontario The grievor who worked -out of the Uxbridge base, had I no ~ discipline on his record until he was discharged on December 8, 1992. The same day he filed the instant grievance, claiming that he was discharged without cause. Preliminary Issue At the commencement of the hearing, the employer made a motion that the grievance was inarbitrable on the basis that the 20 day time limit for providing written notice of referral of the grievance to step 3, as required by the collect~ve agreement was not complied with. After hearing evidence and submissions, the Board ruled that the grievances were arbitrable. While the employer came within the realm of the ontario Labour Relations Act previously, it is common ground that at the time of this grievance, by regulatory amendment I the employer's labour relations had come under Ithe Crown Employees Collective Bargaininq Act As held by the Grievance I Settlement Board in Re Keeling and confirmed by the Divisional , \ \ ~' ., 3 Court, an employee coming within the Crown Employees Collective Barqaininq Act has a statutory right to arbitration of grievqnces on the subject matters ~isted in section 18(2) of the Act regardless of any time limits in the collective agr~ement~ Discharge grievances are clearly a~ong those [s I 18(2)(c)]~_ It was for those reasons that the Board made its ruling, which ~s hereby confirmed. . Merits The Uxpridge-Stouffville Ambulance Service is owned and operated by Mr. Peter Carel I under private licence. However, I like all ammblance services in the province, it is subject to ) the Ambulance Act and regulations thereunder as well as the Ministry of Health policies and procedures. In November of 1992, Mr Carell became aware that a female known to him, Ms. Nicole Casey had alleged that she was sexually assaulted by the grievor on two separate occasions, and that crimi:nal ch~rges ,had been laid with regard to one of these incidents. ,,- While the criminal charges were pending, Mr Carell conducted 'I his own investigation, including interviews with the grievor - and Ms Casey He came to the conclusion that both / allegatio~s were substantiated and that either incident constituted just cause for dismissal of the grievor Accordingly the grievor was dismissed effective December 8, 1992. The criminal charge on the one allegation, referred to il') this award as the "Keg incident", 'Y{ent to trial and the -~ .., r fi' ( 4 i ~ grievor was acquitted on July 28; 1993, the cour~ finding that th~ evidence did -not establish the allegation beyond- a reasonable dOQbt. The parties agreed that this case involved extremely serious all~gations of a criminal nature and that as a result, the employer must establish the allegations on a balance of - p~obabilities through clear and cogent evidence. The union \ takes the position that the grievor did not sexually assault ~ ., Ms. Casey or engage in any culpable conduct on either -' ~ occasion. ~ "[I Ms. Casey was not an employee of the employer_ However, - she was known to both Mr Carell and the grievor, through her role in an organization known as Code Eight, an organization of volunteer ambulance officers and emergency care students who provide medical and health services at sports, - entertainment and other public events. The organization was headed by Mr. Mike Ichelson_ Ms. Casey was ,a close friend of ~. hts son, Mr Rob Ichelson The two Ichelsons and Ms. Casey were instrumental in forming Code Eight Neither Mr. Rob Ichelson and Ms. Casey were qualified ambulance officers but had a strong interest in achieving that qualification. Mr. Mike Ichelson was an acquaintance of Mr Carell From time to time he visited Mr Carell f'or work related ~ 1 i. ! ~ 5 / reasons including the borrowing of medical equipment 'for use -' I 0;- at Code Eight events Often Ms. Casey accompanied Mr. t - Ichelson on these visits) and became acquainted with Mr Carell. On several occasions she received training from. Mr. Carell. During these visits, Ms. Casey a~so met the grievor. Subsequently, the grievor was also enlisted as a training '1 - -, _. officer of Code Eight. .. \ I"': at Code Through the~r ~nteradt~on -rv Eight functions and activities, Ms Casey and the grievor became friends, although it is also clear tha't as an aC90mplished ambulance officer, the grievo~ was looked upon by Ms. (Casey as an authority figure and a role model from whom she could learn about emerg~ncy medical care. , J I \ I I with that brief background we now'turn to the two alleged incidents. "\ j 1 The Uxbridge Base incident of July 11, 1992 Ms. Casey's testimony - Ms. Casey testified in chief as follows: 1 On the morning of July 11, 1992, the grievor called her at home. and invited her to come up to the Uxbridge base. He told her that Mr. Carell was not working that day She did not ask why he wanted her to come, but assumed that he wished I to provide her some training~ Upon her arrival, the grievor introduced her to his partner that day, ambulance officer Mr Paul Blais. After a brief chat outside, Mr Blais went in r " I ! r: ," (' I I ! 6 The building consists of a ,living a:r;ea including a lounge (known as the crew room) and kitchen and attached garage. The "- garage consisted af two bays and two roll-up garage doors There was an ambulance parked in the bay furthest from the living area. A door (crew room door) connected the garage to the crew rqom, which had a TV and a couch. In the garage bay \ closest to the Ii ving area and crew room door, there was a couch. This area was designated as the smoking area Smokers came out to the garage and smoked while seated on the couch \ Ms. Casey testified that after Mr. Blais went in to the ".~ " crew room, . she sat down on the couch in the garage with the grievor. They both smoked and talked for 10 to 15 minutes, when a call came in for an ambulance. The grievor told her that he had to go, but stated that she could wait outside -- until he returned. The grievor and Mr. Blais left in the ambulance and r~turned in a~out 15-20 minutes. Ms. Casey spoke briefly with f" Mr. Blais before he went into the crew room. Ms. Casey and , the grievor went into the gar~ge and sat on the couch again. During the ensuing conversation, the grievor asked Ms Casey if she was dating Rob Ichelson. She said "no" and he asked if she was sure She said she was Ms Casey testified that as soon as she had said that, the grievor "started playing with " my hair, he pulled me towards him and started kissing me and ~ ) \ .t.. } ~ :1', 7 adjusting my clothing". She told him that she was not interested in any relationship with him other than a I friendship He disregarded that and continued. As an excuse to get away, Ms. Casey asked for a glass of water and went in to th~ crew room followed by the grievor. Ms. Casey sat next to Mr. Blais on the couch in the crew room She had a drink of water The grievor took her by her arm and walked her back to the couch in the garage. As she put it, once they sat down r "everything commenced again, playing with my hair, adjusting - my clothes and kissing". She said she was not interested,and \ that she had to leave because she had to return her parent's - \ car. She p~6mptly left. ~s. Casey testified that she was surprised by what the ( gr ievor had done. A day or two later she called Mr. Rob Ichelson and informed him of what had occurred. He advised )her that it was probably an isolated incident and that she should let it slide for now. ) I In cross examination~s. Casey was asked if it was true \ that in her evidence in chief she made no mention that the grievor touched her breasts at the Uxbridge base She agreed I and repeated that it did not happen at Uxbridge. When union counsel pointed to her statement to the Police where she had stated that the grievor touch her breasts and "grabbed them with both hands" at the Uxbridge base, Ms. Casey responded \ , 'f {i ( , 8 that since it was long ago she could not reca'll if the ( j grabbing ,of her breasts wa$ only at the Keg or also at Uxbr idge.. "' .~ .) She agreed that -while the alleged assault was going on, Mr. Blais was within earshot When asked why she did not call out to him if the grievor was assaulting him, she testified "'" (- that instead she found an. excuse to go in to the crew room. When asked why she did not say anything to Mr. Blais about the assault, she respond~d that she had instead invited Mr. Bi~is to join herself and the grievor in the garage, but that-Mr. Blais info~ed her that the grievor had told him not to bother them and to stay away. She denied that she had at any time .., asked the grievor to give him a neck massage to relieve a sore neck. ~ - The grievor's evidence \ In his examination-in-chief the grievor testified that it was Ms. Casey who called him at the Uxbridge base on the day , ' in question to see if she could come over to disduss some Code ..., Eight matters. His evidence as to what occurred from the time Ms. Casey initially arrived, to the time he and Mr. Blais returned from the ambulance call is not materially different \ from Ms. Casey's version. He testified that after Mr. Blais went in to the crew room following the call, he and Ms. Casey sat on the cOl,lch in the garage and talked about Code Eight _ _ / -~ '.. i " 9 ) events coming up. He noticed that Ms. ~asey was fidgety and ,f' j uncomfo:rtable She was. rolling her neck and shoulders. When ! he inquired why, she told him that she had a sore neck and asked if the grievor could rub out a knotted muscle in the back of her neck. As she ~poke she slid along the couch and r ) t " posit~oned herself close to the grievor with her back to him. ~ f~ The gr.ievor .testified that he pushed her hair to the side and -_.. - "proceeded to gfve her neck a little rub" for 2-3 minutes. ~ .... ...... When he stopped, she swung qround to face him and gave a quick ~if?s, off to the side of his lips and thanked him for the massage. Then she told hi1ll that she had to\ return her 1 , pa):'ents' carl' and left. 1 ,". . ~ ! _, f ,-- The grievor den!ed that he had at any time initiated a i , kiss, or that he had indicated an interest in a relationship with Ms. Casey. He also denied that Ms. Casey went into the crew room at any time, or that he escorted her out to the .~ gar~ge" again. " Unq,er cross-examination counsel asked if he had testified '" \. I r in chief that Ms. Casey had ?alled him and asked if she could L come over, the grievor said yes Again when asked if he was sure that it was Ms Casey who had initiated the visit he said I he was He also confirmed that he had not called her that qay He confirmed that his memory on that point was "pretty rol, good". When asked once more whether he was sure that he did , ) \ I , ~ 1"- ,. 10 riot call her, he replied that he was not .sure if there wa's more than one call. When counsel pointed out that he had earlie~ testi:eied that he was absolutely certain that he did not call her, he replied "I may have called her back after we .., had first spoken. I don't know but I am sure phe called me requesting an invitation for her to come up." He further testified that it was possible he called bacK, although he doubted that.because he had no reason to When counsel put it to him several times that he did call Ms. Casey and that the call ~as billed to his home phone number, the grievor replied that he disagreed - -. '8. ~ Employer counsel pointed out that, while at the trial and before this Board, the grievor had testified about Ms Casey requesting a neck massage and giving a kiss to thank him for obliging, in his narrative of what occurred to Ms. Carell during the investigation there was absolutely no mention of a neck massage. In 'fact he had stated that while they were , talking, Ms. Casey gave him a quick kiss "out of the blue". The grievor's___only response was that at the time the massage did not seem significant to him. Paul Blais' testimony Mr. Paul Blais was not the grievor's regular partner While he had known the grievor for 4-5 years, in that time he .t: ;1, 11 1 ha4 worked only about 10 shifts wi~h him He had no , fr~endship with t~e ~rievor outside w9rk. .~ Mr Bla~s testified that on the day in question, earlier in the day the grievor asked him. whether he would mind if a vis~tor dropped by to discuss some Code Eight matterS. He vehe~ently denied that the grievor had at any time told him to s~ay away or to leave him and the visitor ~lone. He similarly denied that he had told Ms. Casey that the grievor had told him to leave them alone. Mr. Bla~s testified that when he and the grievor returned from the call, he had a brief conversation outside the garage .;.. area.. and went into the crew' room to watch TV, while the grievor and Ms. Casey stayed behind in the garage. About 45 to 60 minutes later, he looked into the ~arage to see if al1yonEa WCis still there. !Ie saw the grievor and Ms. Casey still seated on the couc~ talking He said "something_to the effect I didn't know you were still here". He did not notice anything unusual and Ms. ~asey did not appear to be in any distress. He returned to the crew room. ~ Mr Blais categorically denied that Ms Casey had ever entered the crew room to aE?k for water or for any other . . reason, or that she invited him to join them in the garage. He agreed that when he looked in, he in effect apologized \ - \ 'f<\ " . 12 because he had interrupted their conversation He denied that he apologized because he had observed something untoward gotng on. He could not explain why he 'had told' Mr Carell during ! his investigation that he did not want to put the grievor and '- Ms. Casey "on the spot". Mr Blais also admitted that, Ms Casey had left, about 1/2 hour after he had looked in. The grievor apologized to him if he was made to feel uncomfortable, and mentioned somethipg about Ms. Casey having ( problems with her boy-friend. , The Keg Restaurant Incident of September 3. 1992 Ms. Casev's~estimonv This incident occurred approximately 3 weeks after the Uxbridge incident FOllowing a Code Eight meeting, a group j consisting of Mike and Rob Ich~lson, Rob's girl friend Daphna, another ambulance officer Bob DeBreun, Ms. Casey and the grievor went to the Keg Restaurant in Thornhill for a drink. Ms. Casey testified that as everyone got up to leave the restaurant, she thought that Mike would stay and walk her to her car. However, he did not and she was left aione with the grievor. Ms. Qaseyand the grievor walked out to the parking - lot. As she was about to put the key in the car door, the \ grievor put his hands against the car, trapping her between them. According to Ms. Casey, when she.tu~ned to face him, he told her he wanted to have a relationship with her When she said she was not interested, he asked what he could do to. - ~_._-~ } "\ I .' ,~ I; . 13 I change her ~ind. She testified, "He then took a step towards me and starteQ to rub my arms, neck and side. Then he put both his hands on my chest and started rubbing Then he, went j back to my arms and siqes I pushed him away, but he came I I back again. ~ pushed him away a second time and I was able to get into my car and dr i ve away." I Casey testified that she Ms was fri9htened. She drove home quickly, making sure that she was not being followed. Ms. Casey testif ied that the next day she told Mr. Rob Ichelson what had happen~d. He suggested that she speak to -- his fatherj'llMr Mike Ichelson The same evening, Ms. Casey met Mr. Mike IchelsoI1 in t~e pre~ence of Rob and recountedl I both the Uxbridge and Keg incidents. They discussed what should be done and dec~ded that the police should be informed. She testified that it was decided she should wait a little r while before going to the pQlice, "to make sure that the facts were correct". I - Ms. Casey testified that she also decided to wait a while . because she did not want "to potentially damage my chances of eVl?r getting employed in. ontario as an ambulance attendant." I When asked to explain, she said "I had been told that if I went to the police he will be charged and there will be a .\ tr.ial and it will get out, particularly in the ambulance field. I was concerned it will have a damaging effect on my I . I .. 1\ 'I 14 future employment". I r, She made her complaint to the police on , November 11, 1992, more. than two months after the Keg incident. ! , Ms. Casey testified that subsequent to the two incidents, she worked a couple of times at Code Eight events with the ~ grievor. She stated that while she felt very uncomfortaBle, she really had no choice because it was work ,~. " Under cross-examination, Ms Casey agreed that she had a ~ f . close relationship with Mike and Rob Ichelso~, and. that she " " ,-, . She denied that considered ~eter Carell to be a friend also_ .. on a date between the Uxbridge and Keg incidents, follQwing Code Eight duty at a baseball game, she went over to Rob's residence. She denied even more vehemently that she got a ride home from the grievor from the Ichelson residence that -' day. 'j -, '" Union counsel pointed out to Ms. Casey that in .her ~ ;. statement to the POlice, during the trial, and during her . testimony before us, she had not made any mention that the grievor had kissed her during the Keg incident He contrasted '-. that with her interview with Mr. Carell, when she told him that he had kissed her against her wishes numerous times She " had in fact stated that "he kept kissing me over and over"_ (p..12) . Ms Casey insisted that despite hel:;' omission to / - \ i. J. 15 mention the kissing at all to the police, t9 the court and to this Board, the grievor did engage in kissin<;1 her at the Keg / parking lot as she had desc~ibed to ~r Carell j,' ."~ y When asked to describe how the group departed the Keg ....:..-.. ) res~aurant, M~. Casey stated that the first to leave were Rob - - and Daphna. Next Bob DeBreun left. Then she, Mike and the grievor left Counsel pointe? out that' at thec~iminai trial she had testified that she, .the grievor and Bob DeBreun had left together and that in the police statement there is no . , ~.. mention of Mike leaving with her. She responded that she thought itltwas Mike who le{t with them but that it could have been that she left with th~ grievor, Mike and Bob as a grouP! ( . However, she insisted that she was certain she did not leave only in the company 'of the grievor. ) - . - _. i:'1 l Counsel then pointed out that from her testimony at the trial, it was clear that everyone else had left and that she I sat in the restaurant in the sole company of the grievor for quite a while longer. At p. 14 of the transcript she testified that Rob anct Daphna left first, then Mike left I leaving Mr. DeBreun, the gr ievor and herself. Then Bob '" ,~, .;~ ;;'i Debreun left. Her testimo~y to the court from there on reads "M.1.=' Fitch had said to me that he/wanted to talk to me. So I \ f said "all right". I was uncomfortable being there alone with \ "\ him. He said, "Well I've got, you know, its important that .- --...-- - ;:. ) 16 I speak to you" So we sat there for quite a while longer and he didn't really say anything I .said, "Look, you khow 'if ) you've got something to say, thats fine If not, I am going to leave". So at which point he walked me to my car" When - asked to explain that direct conflict in her testimony, she said that when she testified at trial she may "have been mistaken. Then union counsel put it to Ms. Casey that after tpe grievor and Ms. Casey were in the Keg parking lot she borrowed $ 20 00 from the grievor. Ms. Casey replied "No I didn't". She was asked whether the grievor gave her $ 2b.bb and she replied "no". Union counsel then referred her to p. 26 of the transcript of her testimony at trial where in cross- ( exa~ination she agreed that she got $ 20.00 from the grievor eventhough she denied that she had asked for it. When asked to explain, she insisted that she never got any money from the grievor that day, but agreed with the defence counsel only because he "kept telling me and pressing me that I took it. So I said I did". ~ Apart from the grievor and Ms. C~sey, there were no witnesses to the alleged incidents However, Mr Carell testified about other unrelated "incidents", which he took into account in deciding whether to believe Ms Casey or the grievor - - - - - ~- -~- i ~ \ ) J 17 Mr. Carell testified that as part of his investigation he , met with Mr Mike Ichelson and that the latter brought to his attention the following "incidentsq involving the grievor 1. At a soccer tournament while on duty for Code Eight, Mr. Ichelson observed the grievor with an intraven~:)Us bag, about to insert the needle at the end of the tubing into his own arm. 2. At the same event the grievor loudly stated that he wish~d that someone will go vital signs absent. 3. At anothe~ Code Eight event a child had gone missing and a search was on. The grievor treated what was going on as a big joke 'and attempted to call off the search. 4. At another event the grievor attempted to si~ up a patient who had collapsed without follow.ing proper spinal support procedures. c 5. After joining Code Eight as training officer, the grievor demanded that he be provided his own rank and crest for his uniform. 6. T~e grievor had hit a spectator while driving a golf cart at another event, but claimed that it was Rob Ichelson who had hit the person. 7. At the Keg Restaurant shortl,y before the alleged assault, the grievor loudly made a .comment about the size of Rob's girl-friend Daphna's breasts ( I .' ;;. ) 18 8. The grievor had told a colleague that l when h~ reported to an accident scene, he always attended first to.the female with the biggest bosom '"' Mr Carell testified that after all of thfs was related to him, he asked Mike Ichelson whether he cons.idered the grievor to be an asset or detr,iment to Code Eight. Mr. Ichelson's reJ;>ly was that he was an absolute' detriment,. that the grievor did not receive directions well and a.lways 'blamed others for his problems. As pa~' of his investigation Mr. Carell a~so: called Mr. Gord Ho'bper, the coordinator of the Nobleton Ambulance Service, where the grievor had been employed previously He toid Mr. Hooper of the allegations against th~ grievor and inquired if the grievor had any problems imtol ving. females while employed with him. Mr. Hooper advised him that once it had been reported to him that the grievor had "kissed a 1 trainee and stuck his tongue halfway down her throat." Mr. Carell testified that he also called ,Mr Andy '" Steadman, the operator of Corona Ambulance service, another of the grievor's previous employers. He informed that ,the grievor had had many work related problems, but none involving females Mr_ Carell testified that upon inquiry both Mr I ( ( -, - ,- -~-- -------- - \ ~ i ( \ ") 19 HooperartdMr Steadman advised him that th~y would not rehire \ ,- the grievor. Mr. Carell telephoned the Metro-Toronto Dept of Ambulance Services r made inquiries about the grievor's anq emp~oyrnent ,record. He fiiaid that that he received an "unusual "- reply" , that the grievor'semployment file was s~aled and would only be. released pursuant to a summons. However, ) according to Mr. carell, that employer also advised him when I \ asked, that it would not be prepared to rehire the grievor. ~ ~, ~ Mr. Carell spoke to yet another former employe,r of the grievor, Mr. Dave Lyons of the Beaverton Ambulance Service., He was advised that they ;had some unspecified problems involving the grievor and that the grievor had quit after just a few months. \ In addition to the foregQ.ing., Mr. Carell testified that during the grievor's tenure with his own ambulance service, he i became aware of several "incidents involving inappropriate sexual .behaviour" on the 'pa1"t of the grievor. Mr Carell \ detail~d these incidents as follows: 1. In 199~/92 the grievor'.s marriage deteriorated and / while he was separated from his wife, the grievor was '. attempting to establish a relationsh~p with a part-time co- worker. Mr Carell was the grievor's regular partner at the '--' 'I ) J,"\ ,'-. 20 time. During. conversation he advised thegrievor that it was inappropriate to have a relationship with another woman when the grievor was still legally married and that it may bring the ambulance service into disrepute. 7 2. Again after the grievor had separated from his wif~, the grievor was frequently calling an employee of the Markham Anibulance Service and asking her out and often went to see , her. Mr. Carell advised the grievor that his conduct was inappropriate, particularly because it was an employee of an. adjoining ambulance service. 3. \ On one occasion the grievor requested Mr Carell that a femal'e employee be assigned as his partner. Mr. Carell , testified that it was his belief that the grievor had a sexual attraction to that particular female. employee. , 4. In the spring of 1992 another male employee created \ a "wanted poster" depicting a\ caricat~re of a female employee. The poster stated that the female employee was wanted for a number of derogatory things. Mr. Carell testified that while the griever did net participate in the creation of the poster, he watched it being made Mr. Carell, spoke to everyone , I involved and warned that there was zero tolerance of that type of conduct. S. The grievor got romantically involved with a18 year old student trainee. When his supervisor reprimanded the grievor, the grievor called ~r Carel I and inquired whether there was a policy prohibiting him from dating this student. ) ) - -.- -- .; 21 . Carell advised that it was highly unethical for a married Mr man to be romantically involved with a 18 year old, that it cou;td "land him in court" and result in far reaching consequences for his career Despite this advice, the grievor continued to date this student Mr. Carell again advised the . J grievor that his conduct could place the employer in the front I pag~ of the newspapers. Mr. Carell testified that the grievQr's attituc,:1e wa~ that his affairs outside work was not the employer's business. Mr. Carell strongly disagreed and exp'lained that a professional ambulance officer will b~ seen as such no mCitter where he or she J goes and that improper .r' condupt cou~rd bring disrepute to the grievor' s employer as well as all co-workers. 6. On one occasion the grievor informed Mr. Carell that ( he had transported a young lady who fell ill at a ball park to hospital and that subsequently she had invited the grievor to visit he;r- at l10meas a show of thanks. He inquired from Mr. Carell if he felt it was appropriate to visit her. Mr. Carell expressed his opinion. that it was absolutely inappropriate and '.J unprofessional to do ~o. The grievor disagreed. 7. In the summer of 1992 the grievor became romantically involved in a relationship with a nurse at the local hospital and subsequently ~oved in to live with her. He was living with this woman even at the time of his termination. I :.. \ 22 8 In the Fall of 1992 he found out through conversation with the grievor that he was "routinely seeing" a female ambulance dispatcher from Niagara Falls. 9. At the same time, he was seeing another air ambulance dispatcher, who Mr. Carell knew had a ch1ld from a marriage to another man. 10. Because of the grievor's romantic involvement with one female co-worker, he got into conflict with another female co-worker, who was his partner. As a result, Mr. Carell had to arrange for a partner change_ / Mr Carell was asked by employer counsel what conclusions he came to in light of all of the information he had. Mr. Carell replied "That Mr Fitch has in essence been a problem employee for a number qfambulance services over a lengthy period of time and that for whatever reason Mr. Fitch did not stay with an employer for more than a year. I came to the conclusion that Mi. Fitch's version was not entirely truthful about the two incidents. That Ms. Casey's version was significantly more credible and in fact had support from other people I spoke to. Mr Fitch had a long history of consistent and persistent problems involving females. He was spoken to by myself on numerous occasions, sometimes very vehemently The incident relating to the student trainee bore remarkable similarities to these events Also, Mr. Fitch's work record \ , -~..- \ ,l" j 23 indicated that he had been less than exemplary at other ambula~ce services he had worked for". I . . It is trite to say that this board is not bound by any finding made by a crimina.l court It must determine, based on i the evidence before it whether the employer has satisfied the onus of prpof it bears in a case such as this. This standard has been agreed to as - "on a balance of probabilities through clear and cogent evidence.." J Some comment about the alleged "incidents" unrelated to -- - the 2 speci.ffc ,_all~gations involving the grievor is warranted. These incidehts broadly fall into two categories, (a) Inappropriate and unprofessional conduct in the performance of duties by the grievor (b) His sexual and romantic activity. t Some of the work related allegations were supported by the evidence of person's with direct knowledge. So also was the comment made by the grievor at the Keg about the size of Daphna's breasts However, the great majority of the allegations relating to the grievor's sexual and romantic - act,?vity were based on pure hearsay and rumour. A good - ~xample is the allegation that the grievor had ;been seen "kissing a trainee with his tongue halfway down her throat." Mr. Carell testified that Mr. Hooper of the Nobleton Ambulance Service told him that during his investigation and he relied on it. The employer called Mr. Hooper himself to back up Mr ----- - --- - -- -- - (0 \ 24 . Carell'stestimony Under cross-examination Mr. Hooper agreed .:;;. that he had not witnessed this alleged inciden't but that "someone" had told him about it When asked who told him,Mr - Hooper replied that he did not know who r For the grievor's part, during his testimony, he di.d not touch upon some of these unrelated allegations. However, he vehemently denied others He also asserted that the work Ie procedures he followed were not improper as alleged but was the correct procedure. The B6ard does not propose to decide whether any of these alleged incidents are true. In our view, that exercise wiii not in any 'way assist us to d~termine the task we have, i.e. to determine what occurred durin~ the incidents at the .~ Uxbridge Base and the Keg. Even if we conclude, as Mr. Mike Icl1elson and Mr. Carell did, that the grievor was an - incompetent, unprofessional and unethical ambulance officer, we cannot see how that can bear upon the issue before us whether he sexually assaulted Ms. Casey on the days in question. ~ Similarly, if we were to believe all of the allegations of sexual and romantic activity of the grievor, (and we make no findings in that regard) what does that establish? Perhaps, that as a married man whose marriage had failed, the I '0:. .' i 25 grievor carried on a number of affairs and was sexually and ! with . romantically involved several women. That kind of lifestyle may not meet the moral standards followed by some. -t_t~" , However, it is doubtful that such activity is contrary to any law or constitutes culpable conduct which would justify qiscipline. For example, if it is true that after he ~ separated from his wi~~e , the grievor had an affair with , , another woman or moved in to live with another woman. If Mr Carell f~lt that by such conduct tl)e grievor brought tl1e ambulance service in to disrepute, ~nd was satisfied that , discipline was justified, it was open for him to take action. However, ttet-chose not to do so. The grievor has never been ,- disciplined pr~or to his discharge -. j What Mr. Carell did, and what the employer urges this ~ ~ Board to do in effect, is to believe Ms. casey's 'allegations -' on the theory that because the grievor was an irresponsible ) and unprofessional ambulance officer and a man of loose morals, he is likely to have committed the sexual assaults as alleged. j ) On careful thought, we have determined that these alleged incidents should have absolutely no bearing on the issues of I,", cr~dibility involved in this case Firstl_y, the majority of the alleged incidents, pa~ticularly those relating to the ) g:r:~evor's sexual and romantic activity, are based on pure -\.., " l, 26 hearsay and rl,lrnour It is simply unreasonable to Judge a person's m9ral character based on such hearsay and ruinour More importantly, even if all of these alleged incidents were in fact true, what it establishes is that the grievor was (1) not a very responsible and professional ambulance officer- and (2) that he was not a "one woman man", but was sexually and romantically involved with a number of women I In our view, the grievor's incompetence as an ambulance officer can have no adverse bearing on his credibility on the alleged incidents of sexual assault, just' as much as evidence that he was'l'~ highly competent and professional ambulance . officer would not bolster his credibility as to what occurred. We can find no link between the level of competence of an employee and his level of propensity to commit sexual ~ssault; What is most striking is that all of' the grievor's sexual activities as alleged were consensual. There is no evidence of even one prior instance where a woman alleged that the grievor had engaged in any sexual conduct by force. 'There is no suggestion that there had been an allegation of sexual harassment or sexual assault. In that regard we disagree with Mr. Carell that the student trainee incident bears a remarkable similarity to the allegations here. In that incident the grievor allegedly had a consensual affair with a \... 18 year old woman. Here he is alleged to have committed sexual assault, which involves sexual contact without consent ./ ( 27 In our viewr it is an, unreasonable leap to conclude that a person who engages in consensual romantic affairs with ) t - , different. women is also likely to engage in the criminal - -' 1 conduct of sexual assault without consent The former at its I worse, is a matter of morals The latter is a matter of criminaL conduct. It is not reasonable to conclude that a person who engages in the former, will also commit the latter. ) This cas~ thereforer must be decided on the basis of the r credibility of the evidence surrounding the two particular allegations of sexual assault, by applying the usual indicia ~ 7! In this regard, we did not find t}:le grievor to be a totally credibl~ witness He was not truthful in his testimqny at least in two material areas, which \ puts his credibility in general into issue. Firstly, he was less than candid as to how Ms. C~seY's(visit to the Uxbridge base was arranged. The grievor not only denied that he had invited Ms. Casey over, but repeatedly and categorically denied that he ever called Ms. Casey that day. When employer counsel specifically put to him that he did call Ms. casey's home number from the base and billed it to his own home telephone number, the grievor said that although he doubted it very much, he may have called her after she had first called. The long distance telephone records from Bell Canada, conclusively I establish that the grievor indeed called Ms Casey twice from ,,, 'j ( :28 the base and billed the charges to his home number The J ~ - 7 records for Ms. Casey's phone number did not show a call placed from her home to the uxbridge base. Mr. Paul Blais, testifjed~that early in the shift the grievor aske~ him if he I would mind if a visitor came in later This evidence also .(1 , supports the theory that the visit came about as a result of an ,invitation made by the grievor during a call he made to Ms. .t (.A. Casey. ( Even less credi~le is the grievor's testimony as to how '- ., the kiss at the Uxbridge Base developed. At the -'--criminal trial and before_ this Board, he described in minute~ detail how Ms Ca~ey complained about a sore neck and requested a massage, how he administered the massage and how Ms. Casey him kiss by I of thanking him. Mr Carell gave a way interviewed the grievor on November 25, 1992, a point of time much closer to the event than the d~te of trial or this ~ hearing. At Mr. Carell' s request, the g,rievor- twice described - i what,h~ppened durin9 Ms. Casey's visit. There was absolutely I ~ no mention of any sore neck, request for a neck massage or the giving of a neck massage On the contrary, he specifically told Mr. Carell that Ms_ Casey suddenly gave him a kiss "out ~ ~ of the blue" while they were talking seated on the couch. It '~ is obvious, that how the sexual contact occurred is central to \ the issue that Mr. Carell was investigating, i e. whether a " \c sexual assault occurred It lis not believable that if the ., ( .~ ,).;.J 29 kiss came about in the manner now described by the grievor, he would have omitted to mention that to Mr. Ca,rell, but would f .I .". - . instead say that the kiss came out of the blue \ ( " While we did not find the grievor to be a totally truthful witness, that does not and should not, lead the Board _. .t to automatically accept Ms. Casey's version as truthful. l,t '" , is conceivable that an innocent grievor may foolishly lie about what occurred to' bolster his case for innocence In a ( given c;:ase, both thegrievor and the complainant may be . untrut~ful as to what in fact occurred. Desp~te the concerns ~, we have ab9ut thegrievor's testimony, the Board must still assess the credibility of Ms. casey's testimony to see whether the applicable onus of proof on the employer is sati~fied. - J \ .- I We agree with the employer's expert witness that. ~t is not unusual for a victim of sexual assault to be inbonsistertt or unclear about peripheral facts or events. However, a J ) - careful review of the evidence reveals serious and unexplafned ~. - inQonsistencies in Ms. Casey's story as to important issues, ~ i~cluding what occurr~d during the very incidents of sexual '. l;. assault she has alleged. We have concluded that the nature of these inconsistencies is such that her evidence in its totality becomes suspicious We will review some of the areas -, which cause us concern. .:..:. . '"' . '" 30 In Ms Casey's statement to the police, Ms. Casey very clearly described how the grievor allegedly touched her ( ~ breasts durins the Uxbridge incident_ She specifically stafes ~- "he touched my breasts He grabbed them with both hands " During the interview with Mr Carell, he asked her and probed her in detail as to what occurred during the incident. She . descr ibed the incident twice Yet tJ1ere was absolutely no mention of the grievor touching or grabbing her breasts. Similarly, during her testimony at trial, she made no mention -- ~ of any touching or grabbing of breasts when she described the ~ uxbridge base incident. Before us she made no mention of such touching ddring her examination-in-chief. When asked under cross-examination whether the grievor touched or grabbed her breasts at the Uxbridge base she insisted that he had not. I ~ I I I - I I During her interview with Mr. Carell, Ms. Casey recounted I that during the incident at the Keg parking lot th~ grievor \ I .-. kissed her numerous times. At one point she stated that he I I pushed him kissed her "approximately ten to fifteen times away each and every time"'. She made a similar statement in her 1 deposition to the police. J J At the criminal trial Ms. Casey described in detail what Ai occurred during the Keg incident There was no mention what so ever of any kissing Simil,arly before us during her \ '"I.. I' 31 description of the incident in chief, she made no mention of I any kissing When union counsel during cross-examination ~ '- ...1 brought to her attention that discrepancy, she took the - I position that the kissing occurred as she had told Mr Carell and the Police. - ; J. The area of eviqence which most seriously brings into - question Ms. casey's credibility is the following. In her ~ ", description \ of the Keg incident to Mr. Carell and to the ) I POlice, Ms. Casey made no mention that during the Keg incident received $ 20.00 grievor. J did she h?;ld from the Nor she - mention tltatdur ing her examination-in-chief at the trial. i However, when defence counsel put it to her during cross- examination that she borrowed $ 20 00 from the grievor at the I" Keg parking lot at the time of the alleged sexuai assault, she readily admitted that she received $ 20.00 from the grievor, although she denied that she had asked for the money. .- I \ Before the Grievance Settlement Board, again Ms. Casey ..~( made n<;> mention of the $ 20 00 during her examination-irl- .., chief. When asked during cross-examination whether she received $ 20.00 from the grievor during the alleged I<eg incident, she categorically denied that there was any such transaction When counsel pointed out that she had admitted to the receipt of $ 20.00 during her cross-examination at the tri~l, her response was that she admitted to that only because I , ., "" '. ') I 32 defence counsel kept pressing her that she did receive, $ \ 20.00 She insisted before us that there was no such transaction That explanation is simply not believable. The court transcript clearly indicates that it did not take anypressi'ng for Ms. Casey to agree that she received the $ 20. 06. Defence counsel questioned Ms. Casey as to why she let herself be found alone with the grievor in the Keg parking lot at night if she had been sexually assaulted by him just recently. Then the transcript reads: " Q. ~6u could have asked Bob DeBreun to walk L you to your car, correct? I A. Yep. Q. And you didn't ) A I thought he was , Q. Yes. I'll tell you why, Miss Casey, because you wanted some money You were proke tl1at day and you_asked my client . for $ 20 and he gave you $ 20. Isn't that correct? A. I never asked for money Q. Tn that parking lot. I A. He gave me $ 20. Yes, but I never asked for .it. Q. Now you didn't say that to the court earlier in evidence that he gave you $ 20. , correct? A. No Q So You admit you got $ 20.? .-. ---- \ ( ... " i 33 A Yeah \ ( Later on when asked why she had not mentioned about the ~20 00 to the ~olice, Ms Casey stated that she forgot. When asked whether she accept~d the money when the grievor gave it sh~ said she did. When asked where she Eut the money she replied "I guess in my pocket". 't In the face of all of the evidence, we are led to the conclusion that Ms._ Casey did accept a loan of $ 20.00 from the grievor at the Keg parking lot during the time of the alleged incia~nt. This conclusion has several significant implications First, it destroys Ms_ Casey's creaibility as a~itness. She f deliberately attempted to mislead the Board, knowing that the truth,-would not be consistent with her story that she was sexually assaulted at the Keg parking lot. Secondly, her I conduct in remaining with the grieyor alone in the parking lot when everyone else had left. him at the parking lot casts serious doubt on her allega~ion that she had been sexually I assaulted by the grievor at the Uxbridge base just 3 weeks earlier and that she was frightene~ of him Before us, she 1 h .. I wou d ave us be11eve e1ther that she left the Keg Restaurant with a group or that everyone else unexpectedly left and that l she suddenly found herself alone with the grievor However, 1 \ ( . i ./'";s I i -':i> 34 J. ., h~r t~st;.imon)' qt the criminal trial clearly shows t~at she - i ~: t; r " deliber?tely stayed behind with the grievor In fact she told. ~. t~~ c014rt that she stayed behind in the restaurant for "quite -'C' awhile 19nger" and talked with the gri~vor, after the others ~. had left. We cannot help but conclude that sheohanged her evidence before us, because she realized that her conduct was not cons~stent with her alJegations.. Thirdly, and perhaps ~ost i~portantly[ it iSfi3iinply not conceivable that Ms. Casey W.ould accept $ ~ 900 from the grievor if he was in the process ., qf (le't;:aining her against her will andcommi tting se?,ual > , ~ assault;. 11s._ Casey's behaviour at the Keg is totally . l' l' inconsistent with her claim that the grievor had sexually r. .-- , I '- assaulted her at the qxpridge Base just weeks earlier. Her -- c.changing of ~l:le eyidence demonstrates an attempt to bolster . I ~ her story by d~storting tqe truth. - ..:. ~ ..,; In :reaching our conclusion on credibili-ty we ha've also .J been influenced by evidence as to the conduct of Ms. Casey subsequent to the alleged incidents Generally speaking, there is no evidence to indicate that Ms. Casey attempted in any way to avoid the grievor, as may be expected if she had been the victim of sexual assault on his part. There are numerous pieces of evidence suggesting that following the alleged incicients, there was no marked change in the relationf:?hip that had existed between Ms Casey and the ... grievor. Our concerns are further increased by Ms Casey's ~ .r.;; '''- 35 attempts to distort the evidence as to her subsequent ft relationship with the grievor. We cannot help but conclude , that she attempted to do so because shere"cognized that her I conduct woqld be seen as inconsistent with h~t allegations of - \ ~ sexual assault. We will review two of the troubling areas 'of ~. evidence. ! ~ - In h~r statement to the Police, Ms. Casey s~ated that .' since the Keg incident she had not seen the griev9r. This is clea~ly untrue because th~ evidence is clear that on Septemb~r - 12 and 19, 1992 she and the grievor workedtogethef at Code Eight even'\!S'at Klienburg andThornhillrespecti vely . The evidence also estab~ishes fu~thermore that while on duty at - these events, Ms. Casey rode in a goif cart with the grievor. During the cr~minal tri~l, Ms. Casey denied that she 'had been in a golf cart with the grievor at all. However, before tis; she admitted that she rode a golf dart with the grievor at the Thornhill event, but explained that she had no choice but to do so, because it was in the course of her work. '-' The other area of evidence we wish to review, is \ fol10w~ng The grievor testified that on July 18 , 1992, just one week after the alleged sexual assault. on July 11, 1992, he ~ went over to Mr Rob Ichelson' s house for a social visit after a Code Eight event. Ms I The grievor Casey was also there. .- ( I i~ i 36 testified that after the visit. he drove Ms. Casey home because \ she hadno car During her testimony, Ms Casey completely denied being in the Ichelson house in the' company of the grievor or being driven home by the grievor However ,Mr. Rob Ichelson, a friend of Ms Casey and a witness called' by the employer, in his statement to the 'Police clearly corroborated the grievor and contradicted Ms. Casey in this regard He confirms that the grievor and'Ms. Casey went over to his .house on July 18, 1992 after work, and that the grievor drove Ms. Casey home. When Mr Rob Idhelson was asked about this in cross-examination, he confirmed that on July 18, 1992, the ~ grievor and'O?Ms. Casey went over to his house after a Code Eight event. However, he stated that he could not. recall specifics other than that Ms. Casey did not have a car that day. When counsel put to him his statement to the police that thegrievor had driven Ms. Casey home, and suggested that the statement given at an eariier point of t~me would have to be ) accurate, Mi:' . Ichelson replied that what he told the Police was what actually happened. As already noted, the allegations against the grievor are extremely serious Such allegations must be proven by clear and cogent evidence Mr Carell relied on numerous unrelated alleged incidents and performance problems on the part of the grievor. Most of these had their source in hearsay and rumour_ Even if those allegations were true, they cannot ( ;~ <'. ~}, 37 assist the emp19yer in establishing just cause. The grievor was not discharged for his job perJormance inadequacies or for his moral deficiencies. Rather, h~ was discharged for allegedly sexually assaulting Ms. 9asey on two specific occasions. For the discharge ;to be upheld those specific allegations must be established by dlear and cogent evidence. On a carefu~ review of all of the evidence, the Board is not;. satisfied that either allegation has been established according to the applicable burden of proof. ! There ~ ~re serious inconsistencies in Ms. Casey's testimony, includfng her testimony as to the very acts of alleged sexual assault We find that she attempted to mislead the Board in many areas, some of whi6h we have reviewed in this award. - Gen~fally we Qid not find her to be a credible witness Specifically, the evidence! about her conduct I subsequent to the alleged incidents casts serious doubt as to whether she was subjected to sexual assault. \ Since we also did not find the grievor to be a forthright witness in severa],. aspects, we cannot determine exactly what occurred during the two incidents. However, we cannot conclude on a balance of probabilities that the grievor engaged in sexual contact with Ms Casey without her consent on either occasion Since the allegations of misconduct ~ \ ": .Y f~' ~ 38 attributed to the grievor have not been established on the applicable standard of proof, we must allow the grievance The Board hereby allows the grievance. The employer is ~t directed to reinstab:~ the grievor in'his former position with full compensation and without loss qf seniority. The Board rem?lins seized with regard to any disputes relating to implementation of this :award, includin9 issues as to mitigation and the quant~m of compensation. Dated this8thday of August, 1995 at Hamilton, ontario. II It - ~ L N Dissanayake Vice-Chairperson ~?0tFl! E. Seymour Member cd ~L/(addendum attache F. C . t Member i r ~"'\;. ',1,2. .J1, C ADDENDUM Re. G.S.B. #2878/92 (FITCH) . l This Member is in- agreement that the Employer has failed to prove that Mr Fitch was . I discharged for just cause For reasons to follow" however, it would appear that some I arrang~ment other than reinstatement of Mr Fitch wQl;Jlq be appropriate in this case T - I As stated at page 37 of this award, r "The grievor was not discharged for his job performance '- inadequacies or for his moral deficienci.es. Rather, he was discharged fori allegedly sexually assaulting Ms Casey on two , specific occasions. For the discharge to be upheld those specific I I I allegations must be established by clear and cogent evidence" The letter of termination assignment to the grievor stated, in part, , .- " it was explained to you and the Union representatives that it was my _considered opinion that those allegations (concerning events at the Uxbridge base and the Keg parking lot) were essentially correct. -' It is also my opinion that a ch~rge of Conduct Unbecomi~g an Ambulance Officer is adequately supported by your behaviour in either of the two incidents investigated." For reasons set out in the award, neither ofthese two incidents was established with clear and cogent ev.idence After having made the above determination. the Board is faced with issue of remedy The - Board has awarded the reinstatement of Mr Fitch to his former positibn with full compensation and without loss of seniority, which is the usual remedy in cases of this I nature J j \ I ~ i1 '~I '-- . However, in the opinion of this Member, th'e reinstatement of Mr Fitch to his former I position is not a desirable remedy in this' case, for the following reasons I r -I I I I 1 His length of service with -his Employer was not long (September '90 to I December '92) i I 2. Mr Fitch clearly was not candid with the court and with the Members of this I I Board concernin.g who invited whom to the Uxbridge base in the telephone: I calls made on July 12/92 (see award, pages 27,28) 3 Furthermore, as stated at page 37 of the award, the grievor was found to be not a "forthright witness" I "Since we also did not find the .grievor to be.a forthright witness in several aspects, we cannot determine exactly what occurred during the two incidents" (In this r~spect, even the evidence of witness Blais concerning the Uxbridge incident was not believable) ~ ~ j 4 It is significant to note also that, notwithstanding the fact that the Board does not believe either Mr Fitch or Ms Casey concerning that which transpired inthe ambulance, garage at Uxbridge on July 12, 1-992, Mr Fitch did not any time, tell the Board what type of ambulance. first- aid or related training that he,ostensibly, was giving to Ms. Casey while the two were in the garage for an extended period of time 5 To the final date of this hearing, Mr Fitch took the position that only he had told the truth in th.ese proceedings, - that only his story was to be believed In effect, he was in no way contrite nor did he take any responsibility for his actions which, although they fell short of sexual assault, certainly involved interaction with Ms Casey (on the Employer's premises during! working hours anq in the Keg parking lot in the late evening after a Code Eight meeting, - both for an extended period of time), and which gave rise to all of _ \ the matters which were reviewed in this case As stated in G S B #7/75 (Harris), p 21, ---' 'i: ~... ~~ I { I " we are unwilling to exercise our remedial authority on behalf of a grievorin a case where we are 'unable to believe the grievor's testimony where a grievor's evidence cannot be believed in circumstances which amount to a disregard for the quasi - iudlcial nature of the proceedings before the Board and for the vital importance of sworn testimony in such proceedings, the Board will not use its discretionary power to interfer~ with the penalty imposed" (Underscoring added) ( Clearly, Mr Fitch appeared to be misleading concerning who invited whom to the Uxbridge base and he was not a forthright witness I 6 Mr Fitch was counselled by his Employer concerning his liaison with a female student trainee and a continuing' contact with a female patient. He specifically was denied a request to be' partnered with a specific female ambulance officer in whom- he had an interest.. It is significant that none of 21 lr these cautions was uncontradicted, 7 (a) Mr Fitch was very familiar with the Employer's manuals and policy concerning sexual harassment and zero tolerance J (b) He knew of their application to the duties he performed while - functioning as an employee or even when not functioning as an employee (c) There was a nexus between the Code Eight orgamzation and the Uxbridge/Stouffville Ambulance Service Mr Fitch was assigned to Code Eight as a training officer where he was to bring professional training to non-professionals I (d) He was regarded as an "authority" figure by N Casey and a "role model" by R. Ichenson. He had a responsibility therefore to comport himself as such and to recognize that he was a representative of the Uxbridge/Stouffville Ambulance Service \ ,,~__;fJ'~.'" , t I, 8 This Ambulance Service is not a large employer Accordingly, Mr Fitch cannot be assigned to a neW location where he Will be -wotking with new people, - both co'-workers and supervisors. Also, information in a community of interest such as ambulance services, tan be expected to travel rapidly 9 Al)Tlbulance attendants in this organization are largely unsupervised in their duties, with a supervisor on call only 12 hours per day Therefore, mature judgement by these 'attendants, and trust in their performance is required as they deal with patients who often are incapacitated or are in a vulnerable position The public trust requires that the ambulance attendants of an ambulance service are providing safe and competent services and that patients are in "good hands" SUMMARY '[!. ~ In view of all of the above, in the consideration of the return of Mr Filch to an ambulance attendant position with this Employer, this Member would have tb be convinced that his behaviour in this case was an aberration. Clearly the charges of sexual assault against him were not proven. As stated in the award at page 37, " we cannot determine exactly what occurred during the two incidents " ) However, based upon the evidence which gave the Board Members an insight into the inclinations and interests of Mr Fitch as related to females, he has demonstrated poor judgement and immaturity (see pages 17, 18 of award), and he has been le~s than forthright with this Board and with the court. I I ~ I :v ~l~t! I \ , .... , \ If there was a le~s sensitive area to which to return Mr Fitch in-the UxbridQe/S,touffville Ambulance Service, this Member wouldt?e in concurrence with the remedy determined by the majority However, given the "professional" nature of the ambulance officer position; its sersitivityas related to the'trust of the Employer, and the public at large, this member \ would propose a negotiated separation or buy-out to be determined by the parties {9{9 ~ - FT Col . II " ~ 0/95 1 '- )