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HomeMy WebLinkAbout1993-2201.Clinton 1- .",~ ~'-'- ( ,./i. ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO t '" 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, MSG lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (416) 326-1396 GSB # 2201/93, 132/94 OPSEU # 94C015, 94C130 IN THE MATTER OF AN ARBITRATION Under ~ THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Clinton) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) I Employer BEFORE: F Briggs Vice-Chairperson J Carruthers Member M O'Toole Member FOR THE A Lokan GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR ,THE S Mason EMPLOYER Counsel Legal Services Branch Ministry of Community & social Services HEARING November 11, 1994 January 16, 20, 1995 't' \~> t ~ The grievor was discharged from his employment as a Child Care Worker II at the Child Parent Resource Institute (hereinafter referred to as "CPRI") after approximately fourteen years of service. Prior to his discharge he was suspended without pay pending investigation. He grieves his suspension and discharge alleging that both were without just cause. His letter of suspension outlining the reasons for discipline was dated November 4, 1993 ~ and stated. On Wednesday, October 2.7, 1993 we were made aware of an alleged incident of sexual assault which is purported to have occurred during the evening of October 2.6, 1993. Ms. X, a Child Youth Worker, student of Fanshaw College, and on a work placement at C.P.R.I., has indicated that while babysitting in your home she was sexually assaulted by you. This is very a serious matter as you were specifically assigned the responsibility to supeNise Ms. X's placement at Eden House as part of her attainment of a Child Youth Worker Certification. In addition, you have received numerous reprimands from your Supervisors-Managers in the past few years including one of April 6, 1989 on inappropriate behaviour towards a client following discharge. In view of the very serious nature of this October 2.6, 1993 incident and your previous employment record, and in accordance with the authority delegated to me under Section 2.2.(1) of the Public Service Act, I am suspending you without pay effective October 3D, 1993 until further notice pending investigations. During the suspension and investigation you are not to initiate any contact with Ms. X. nor are you to contact client's, staff or to return to the C.P.R.I property Following the investigation you will be contacted to attend a meeting to review the findings of said investigation. By agreement of the parties, the student will be referred to as ''Miss X" The grievor was discharged and was given a letter dated February 10, 1994 which stated. As substantiated in the Workplace Discrimination Harassment Prevention Investigation Report dated 1993, December 03, you did sexually assault a female student who was assigned to C.P.R.! as part of her college placement. 1 ,!~"iI t 2 In view of the seriousness of this action and by the authority delegated to me the Deputy Minster under Section 23 of the Public Service Act, I hereby dismiss you for cause in accordance with Section 22(3) of the Public Service Act, effective 1993 October 30. You have the right to grieve this action pursuant to Article 27 of the Collective Agreement. As explained in opening statements of the parties, the grievor was charged criminally with sexual assault and pleaded guilty The parties agreed to admit into evidence a transcript of the criminal proceeding setting out the Crown facts. The parties further agreed that the Crown facts as set out in that document were correct. That document stated. At the relevant time Ms. X was twenty years of age, the accused being 39. Ms. X was a student at Fanshaw College working in the Child Youth Worker Program, and in September of 1993 was assigned to the Eden House at CPRI on a cooperative program to last until December of 1993. It was there that she met the accused who was her supervisor, he being employed at the CPRI. They worked together at CPRI, but as well she started babysitting for him at home. On three occasions prior to this date that we are concerned with, being Qctober 26th of '93, she baby-sat for him on three occasions. On the 26th she was there on the understanding that he would be going out. He in fact did not. During the course of the evening, made a comment to her such as: I know you're not a true blond. I know about you than you think I know She felt it to be strange. He then indicated that he was going to bed. He took his child with him, but eventually came back down without the child. She was sitting on the loveseat and he came and sat beside her He put his left hand on her knee. He then left to get the child. When he returned he put his left arm around her shoulder on the back of the sofa He went up stairs after she suggested to him that he leave and go upstairs. She put the child to bed, and then returned downstairs where she sat on a rocking chair He called her back upstairs. When she went there he was laying on his bed with his shorts on, shirt on; asked her to sit on the bed. She did not, until eventually she sat on the far corner He asked her to hold him. She refused and he continued to make that request and she said that she would continue that conversation on the main floor She went downstairs, sat 9n the chair and he came down and layed on a couch in a provocative position. She went to call her landlady to come and pick her up, and told the accused that she would be leaving. "ige indicated that he was going back to bed. She was sitting on a rocking chair and he came and slid his hand over her shoulder onto her breast and she tried to pry his hand away He persisted with more strength and cupped his hand around her breast, and then she said no again and jumped up breaking free and left the residence, and met the landlady who was there to pick her up; and then a couple of days later eventually contacts ., tells her Fanshaw College Supervisor and that eventually gets to the Police (sic) The Union stated in its opening statement that, in part, it agreed to the Crown facts heing put before the panel to avoid the necessity of the victim giving evidence Not ~ ;!'-~-"- ---~ , t . 3 withstanding that effort, the employer chose to call Ms. X and her testimony was consistent with above statement. She also testified that on October 27, 1993, she returned to CPR! and complained of the assault to her manager Subsequently she filed a complaint under the Ministry's harassment policy On October 27, 1993, Ms X also contacted the police and a charge of sexual assault was laid against the grievor. In her evidence, Ms. X elaborated that the grievor was her supervisor and his responsibilities included observing her interaction with children at CPR!. In addition he was to inform her college supervisor of her progress. On October 26, 1993, after she finished work, the grievor telephoned her explaining that he urgently needed her babysitting services because his grandmother was ill. He explained that his car was not working and therefore he could not pick her up. Ms. X asked her landlady to drive her to the grievor's house and she arrived at approximately 4.30 p.m. For the first hour and a half she and the grievor talked about work but then, according to Ms. X, the grievor began making inappropriate comments which made her feel uncomfortable. Ms. X's evidence was completely consistent with the Crown's facts as set out above. She testified that after she returned downstairs following the grievor's request to hold him, she told the grievor that she was going to leave. It was while she was waiting for her landlady to arrive that the grievor touched her breast. Ms. X testified that she did not notice the grievor drinking alcohol on October 26, 1993. -~~-- '! ~, il; . f . 4 She neither smelled alcohol on his person nor did she notice that his speech or movements were affected. However, in cross examination she did agree that the grievor appeared very tired and drained and at some point in the evening he slept for a couple of hours. As well, she agreed that the grievor was carrying around a coffee mug with him for much of the evening. She also conceded that he spoke about his sons from his first marriage and that it was one of his son's birthday that day Ms. X was asked if she had any difficulties with the grievor prior to October 26, 1993, regarding his duties as a 7 supervisor and she testified that she had not. Indeed, she agreed that he was supportive and encouraging Further, he never threatened her with a low grade for her work in any context. Eugene Sorin is an administrator at CPR! and has been with the Institute for approximately sixteen years. It was his decision to suspend and dismiss the grievor and he was the author of the letter of suspension and discharge. Mr Sorin described CPR! for the panel as a regional children's centre operated by the Ministry of Community and Social Services. The mandate of CPR! falls into three general categories, service, education, and research and the clients range from very young to eighteen years of age. Many of the children have normal intelligence however, many of the children have major behaviourial problems. Approximately thirteen percent of their clients are admitted and stay at CPR! twenty four hours a day f! iJ '! - ~ 6 During the course of his evidence, Mr Sorin referred to an earlier incident regarding the grievor that he relied upon in his consideration of the ultimate penalty The Union , objected to the introduction of the letter of reprimand on the grievor's file and any evidence regarding that letter In an interim decision, this Board found that, not withstanding the fact that the letter had been on the grievor's file in excess of three years, the failure of the grievor to ask that the letter be removed from his file meant that the letter remained on his file. As such, it was admissible evidence properly before the panel. However, the Board later ruled that viva voce evidence regarding that fact situation would not be admitted. The letter on the grievor's file was dated April 6, 1989 and stated. Further to our conversation of 19a9 April 6, this Letter of Reprimand is being placed on your record. You have admitted to involvement in inappropriate behaviour of a sexual nature with a minor client of this Institute. During her admission to CPRl, you were her primary counsellor and placed in a position of trust with shared responsibility for her treatment. Your conduct following her discharge has demonstrated a gross abuse of professional responsibility which is morally and ethically unacceptable as a direct care staff. Any recurrence of such behaviour will result in further disciplinary action up to and including dismissal That letter was addressed to the grievor and was signed by Mrs. Polly Keeler, the Associate Director of Resident Care. Mr. Sorin testified that he made the decision to terminate the grievor's employment because, in his view, on a balance of probabilities, the grievor had sexually assaulted Ms. X and done so in a premeditated fashion. He took into account the risk that the employer would suffer if the grievor was allowed to continue to work with students, staff, volunteers and clients at CPR!. He determined that there was a fundamental breach of trust deserving of discharge. Further, he was of the view that the reputation of CPR! would be / - - - -- - ----- .,~~ ~ t - --- 6 seriously hanned within their community group, that is the Children's Aid Society, local group homes, the Community College and within the Ministry itself. I In cross examination, Mr Sorin conceded that he originally was unsure as to whether the Ministry's Policy on Harassment applied because of the fact that the incident took place outside of the work place. Mr Sorin also conceded that he received advice that the appropriate level of discipline in the circumstances was a reprimand. Mr. Sorin was asked about another situation of alleged sexual harassment in the workplace. It involved a manager who was alleged to have touched a female co-worker The complainant in that matter was temporarily transferred to another area while the harassment policy was initiated and the investigation earned out. The investigation report indicated that there was some evidence of inappropriate comments by the manager towards female staff, but the allegation of inappropriate touching was not substantiated. Both Mr Sorin and Mr Hulks, the Human Resources Manger for CPR! testified that there was no discipline meted out to that manager based, in part, on his record. Further, it was decided by management and the union that there would be staff training regarding work place harassment and appropriate behaviour in the workplace. J Ms. Waltraud Nott, the local Union President testified regarding the situation involving the other manager At that time the parties agreed that the agreed upon staff training was delayed. The Union had to remind the Employer months after the original agreement that the training needed to be provided. :-i' Ck~ t 7 The grievor testified that, at the time of the incident, he was living with his daughter and second wife. He had been disturbed for some time about the relationship he was having with his first wife. For a variety of reasons his first wife denied him access to his children, a matter which concerned him deeply Indeed, October 26th was one of his son's birthday His first wife denied him the opportunity of giving his son a birthday present, and, as a result, he had been drinking heavily for days. It was his evidence that he was an alcoholic, a binge drinker, particularly when he got angry or upset. During his drinking episodes he consumed large amounts of alcohol for a two to three day period. His drink of choice was vodka and it was not unusual that he would drink twenty six ounces during a twenty-four hour period. He testified that there were significant periods when he had no alcohol intake. However, when he became upset or his life seemed out of control he would resort to alcohol. The weekend prior to the incident giving rise to the grievance, the grievor had been drinking and continued to do so until two to three o'clock, early Monday morning He had not been eating or sleeping properly He testified that he had every intention of going to work on October 26, 1993, however, his car broke down. He had made arrangement a few days earlier that Ms. X would babysit because he was supposed to be working and his wife was to be attending evening classes. When he realized that his car was not working, he phoned his supervisor and fabricated '. <"J.:t. t 8 a story about his grandmother being ill in hospital. He testified that initially he was going to cancel the babysitting arrangements but he decided not to due to his fatigue and depression. He testified that he knew that he could not properly care for his daughter and it was appropriate for Ms. X to babysit for the evening. I The grievor's account of the evening is substantially similar to that of Ms. X and it is not our intention to repeat that evidence. However, there are areas of disparity He testified that he continued to drink alcohol throughout the evening and offered that Ms. X might have been Wlaware of that because he drank from a mug which he filled from time to time in the kitchen out of her sight. According to the grievor, he suggested to her that she phone her landlady to get a ride home because he realized the situation was getting inappropriate. The grievor testified that there was a history of alcohol abuse in his family spanning a number of years. He consulted the London Employees Assistance Consortium regarding his alcohol abuse subsequent to his tennination. He and his wife became involved with counselling and, although he is estranged from his present wife, they continue to work on their relationship. The grievor testified that he had always thought that his reliance on alcohol was as the result of an anger-management problem. However, he has corne to appreciate that his fundamental problem is alcohol abuse. He testified that he was assessed for alcoholism l}::. '; t 9 in 1989, after he separated from his first wife. The evaluation revealed that he was a borderline abuser and not in need of treatment, although he now concedes that perhaps that he was not completely honest in his responses throughout that evaluation. After his discharge, the grievor attempted to stop drinking and was succes~ful for approximately ten months. However, as recently as November, 1994, he had another two episodes of binge drinking that helped precipitate the estrangement from his present wife. The grievor testified that he was significantly affected by the separation from his present wife and as a result he went to "a detox centrell where he was again assessed for alcoholism. While at the detox centre, the grievor attended a number of meetings of Alcoholics Anonymous. Through those discussions he has now come to truly appreciate that he has an alcohol abuse problem. It was suggested that he participate in a twenty- eight day program. However, due to the impending arbitration dates, the grievor has not yet begun the program. It is his understanding that he can choose to attend in the future. The grievor was asked in his examination in chief how he felt about the impact of the situation on Ms. X. He responded that even at the time he knew he "goofed up big time" and he attempted to contact her the day after the incident to try to explain and to apologize. However, because of the restrictions imposed on him regarding any contact with Ms. X. he abandoned those attempts but suggested that she deserved an explanation. :~ t 10 The griever testified that he had a good relationship with his supervisors, clients and co- workers at CPRI and very much wants to return to work. He has been unable to find employment since his discharge. In cross examination, the grievor conceded that he drove to work and worked his full shift on Monday October 2S, 1993, that is, the day before the incident. He also conceded that he was not "falling down or stumbling d.runlC1 on the evening of the incident. However, he was tired and did sleep for a period during the evening. In cross examination, the grievor was asked to explain the connection between his being tired and emotionally upset and grabbing someone. He testified that he was looking for comfort and did not consider what he did as grabbing. In cross examination, the grievor was shown a series of certificates that he had provided to the employer in 1989, from his physician. The first of those certificates said, "Phil is ill and unable to work. We will be attempting to arrange a thirty day treatment program." The second note, dated October 12, 1989, stated, ''Phil is continuing in a recuperative therapy program. He will continue to do so under my monitoring and will likely be able to return to work by November 13, 1989" Finally, in a note dated November 8, 1989, the griever's physician stated, "Phil is sufficiently recovered to return to work on November 13, 1989" When questioned about that period, the grievor acknowledged that he had an assessment done regarding his alcohol consumption, but no treatment was sought other than his doctor monitoring the situation. The grievor also acknowledged that in 1989 he ~ ~ ~ t 11 went to a few meetings of Alcoholics Anonymous. However, he did not want to be part of that organization and returned to his physician for treatment. He was not specific about what that treatment was. The grievor acknowledged that his personal problems have had an impact on his work life over the years. In cross examination, he was shown a series of perfonnance appraisals spanning a number of years. In all of the appraisals he made reference to his hope that his perfonnance would improve when his personal problems stabilized. He also identified a memorandum that was sent to him by the Director of Resident Care in December of 1990, that suggested that Ihe commence using the services of the London Employee Assistance Consortium to assist you to resolve your personal problems" EMPLOYER SUBMISSIONS Mr Mason, for the employer, submitted that the grievor has committed such a fundamental breach of trust that it constituted just cause for discharge. The grievor sexually assaulted / a student over whom he had authority During the evening on October 26, 1993, he engaged in a prolonged period of premeditated and inappropriate behaviour That behaviour manifested itself in the grievor making offensive comments that made Ms. X uncomfortable, posing provocatively and, finally, assaulting her The employer contended that the offending conduct was not off duty conduct as is often "it t 12 referred to in the arbitral jurisprudence While the union was prepared to concede that the conduct could not properly be categorized as off duty, Mr MaSon reviewed for the Board the nexus between the incident and his employment relationship. The Board was reminded that Ms. X was a student and the grievor was her Supervisor who abused the trust that was placed with him, The employer argued that the Board cannot put the grievor back into an institution where the staff is approximately fifty percent female and where the grievor could not be isolated from working with either female co-workers or female clients. Mr Mason suggested that the grievor's account of his alcohol abuse does not mitigate his actions on October 26, 1993. Even if there was evidence that the grievor was drunk, and it was suggested that there was no such evidence, his state of sobriety could not be used as an excuse for his actions. Indeed, it was suggested that his candour about his alcohol abuse at the hearing can only be seen as self serving. Ms. X testified that the grievor was not noticeably impaired, that is, his speech was not slurred and he seemed to have no impairment of his balance or physical abilities. Therefore, on a balance of probabilities the grievor was not drunk and no adequate explanation has been offered to justify the grievor's course of conduct over the evening of October 26, 1993. The employer suggested that the grievor's personal problems could not be considered a mitigating factor in his behaviour Indeed, it was argued by Mr Mason that Ms. X did - - ---- - 'i: t 13 not recall, contrary to the grievor's evidence, that he was particularly upset about difficulties with access to the children of his first marriage. Nor did she recall that the grievor told her that it was his son's birthday Anticipating part of the union's argument, the employer asserted that the Board ought to disregard the evidence surrounding the allegation of sexual harassment involving another supervisor at CPR!. The facts were substantially different in that instance. For example, the manager was found not to have sexually harassed the complainant. That finding was consistent with his initial denial. That manager had a clear record and had longer service than the grievor. As well, no criminal charges were filed. Therefore, the cases are distinguishable. The Employer contended that the onus is on the grievor to prove that his conduct on October 26, 1993 was an aberration that would not occur again and that he could be trusted if he was reinstated. Even in the absence of the letter on his file from 19a9, the Board ought to be skeptical about reinstating an employee who sexually assaulted someone, particularly someone over whom he had authority Mr Mason submitted that the grievor was not discharged for alcohol abuse. He was discharged for his conduct on October 26, 1993, when he sexually assaulted Ms. X. After reviewing his record, the Employer decided that the appropriate penalty was discharge. In the alternative, if this Board were at all sympathetic to the grievor's contention that alcohol abuse is a mitigating factor in considering penalty, it was Mr Mason's contention ,~ t 14 that there was insufficient evidence for such a finding There was neither a proper medical diagnosis or prognosis. In the absence of both, this Board ought not to take the grievor's substance abuse into account as a mitigating factor Further, the employer suggested that the grievor's personal problems are not proper mitigating factors. Indeed, Mr Mason suggested there could be no matter which could mitigate the conduct of the grievor on October 26, 1993. However, in the alternative, if the Board is prepared to consider the grievor's personal problems as a mitigating factor in detennining the appropriate penalty, it was suggested that the Board recall that the grievor has consistently used his personal problems as an excuse for poor work performance. Mr. Mason also suggested that the Board keep in mind that, if the grievor's personal problems are to be taken into account, it ought to be remembered that his problems are worse now than at the time of the incident. His second wife has left him, and no reconciliation was foreseeable according to the grievor. However, there are a number of aggravating factors, Mr Mason submitted. Those factors ought to be taken into account when considering reasons against reinstatement. Those reasons include the fact that the grievor was in a position of trust which he breached. Secondly, the grievor was employed in a position where he was in charge of children and, as such, ought to be a role model with a high standard of behaviour Thirdly, the grievor had on his personal file a letter of reprimand for inappropriate sexual behaviour with a minor client. Clearly, there has been irreparable hann done to the employment j.,~ I t 15 relationship and the grievor ought not to be reinstated. The Employer relied on Re Corporation of City of Comwall and Canadian Union of Public ,- Employees. Local 234 (1987), 31 LAC (3d) 150; Re Etobicoke Board of Education and Ontario Secondary School Teachers Federation District 12 (1981), 2 LAC (3d) 266; and Re The Crown and Right of Ontario (Ministry of Correctional Services) and Ontario Public Service Employees Union (Campbell) (November 3, 1994), unreported (Charney) UNION SUBMISSIONS - Mr Lokan for the union, began by conceding that the incident of October 26, 1993 was both unlawful and reprehensible conduct. However, it was suggested that the employer has over-stated its case and has over-reacted with respect to the penalty There was very little dispute on the facts. Indeed, there were two minor factual issues as between the grievor and Ms. X and that were of no import. The first regarded the arnoWlt of alcohol consumption and the second was who initiated the call to her landlady on the evening of October 26, 1993. Mr. Lokan suggested on both points, the grievor's evidence ought to be preferred. Regarding the grievor's alcohol intake, clearly he was in a better position to give evidence on that matter His evidez:tce ought to be preferred on the second issue because it would have been odd for Ms. X to choose to leave at that particular point of the evening ',.' , t 16 Mr Lokan asserted that the grievor was an honest and credible witness. He was even courageous. It is not an easy task for a person to reveal the intimate details of his life, including the fact of alcohol abuse. The grievor was neither evasive in his evidence nor did he deny any essential point. He frankly acknowledged that problems might occur if he were to be reinstated to Fanshaw College. However, that acknowledgement ought not to be held against him. It was acknowledged that the grievor's behaviour was illegal J and undoubtedly disciplinable conduct. However, the Board was asked to set aside the discharge and to consider instead, a three month suspension, after having taken into account the various mitigating factors. Those factors include the fact that the grievor immediately admitted his actions when confronted. He was forthright in his dealings with the investigation and when he was charged criminally, he pleaded guilty, thereby avoiding putting Ms. X through the stress of a trial. The grievor deserves some credit for accepting responsibility for his actions. Mr Lokan conceded that this was not off duty conduct and that there was a nexus established to support the imposition of discipline. Employer interest was proven although that interest is somewhat attenuated by the evidence given that the employer's initial response was to simply reprimand the grievor The union suggested that the disciplinary record of the grievor is not significant. There .' t 17 . is one letter of reprimand that is five years old. Given the age of the discipline,as well as the minirnallevel of that discipline, it ought to be given very limited weight. The Board was reminded that the letter could have been taken off the grievor's file after a three year period and would have been but for the grievor's failure to make such a request. I Another mitigating factor, the union suggested, is the grievor's significant seniority He has been employed since 1982, and, while it is not suggested that his record is unblemished, he has substantial service. The grievor has invested almost fourteen years of his life with this employer and, with such an investment, the opportunities for finding employment elsewhere become less and less. A further mitigating factor for this Board to take into account is the extraordinary circumstances of October 26, 1993. The grievor had consumed far too much alcohol because he was upset about lack of access to his children and the fact that it was his son's birthday He was, by all accounts, emotional and while that is not reason for sexual assault, it should, at least, be taken into account in considering the appropriate penalty Mr Lokan suggested that it was urmecessary for this Board to have a medical report regarding the grievor's alcohol abuse. He testified in a forthright fashion about his alcohol abuse and the treatment that he has sought If this Board has any concern about the lack of a prognosis, it can recall that his acknowledgement of his alcoholism is fairly recent. It would be far too high a standard to suggest that an employee had to be fully - - ,iI'. t 18 rehabilitated before reinstatement is ordered. Arguably, such a standard can never be achieved. However, this Board should consider as a mitigating factor the fact that the grievor recognized he has a problem and has sought treatment to deal with it. The Union asked the Board to remember that the grievor has experienced significant ramifications flowing from his actions of October 26, 1993. He was sentenced and fined $775.00. However, he was also discharged and that has had a financial cost of approximately forty thousand dollars to date. His marriage had been affected and he has suffered substantial damage in his life. The grievor is remorseful. He acknowledged that he was wrong and testified that he wanted a chance to explain and apologize to Ms. X. He has shown a willingness to face up to the problem. His remorse should be taken into account by this Board In the result, the union asked the Board to reinstate the grievor and substitute a three to six month suspension without pay It was suggested that such a suspension would be appropriate given the arbitral jurisprudence. Such a suspension represents a penalty of some ten to twenty thousand dollars and would certainly leave the grievor on the brink regarding his future conduct. Such a penalty would make it clear that such activities will not be tolerated while at the same time, allowing the grievor to rehapihtate. The union reminded the Board that the grievor indicated in his evidence that he would have no difficulty with conditions on his reinstatement. Therefore, the union invited the Board to consider conditions such as having to continue to participate in Alcoholics '. (o t . 19 Anonymous for a two year period. The Union relied on Re Government of the Province of Albert and Alberta Union of Provincial Employees (1982), 5 LAC (3d) 268; Re Nova ,~ Scotia Civil Service Commission and Nova Scotia Govemment Employees Union (Rodd.) (1992), 25 LAG (4th) 269; He Emergency Health Services Commission and Canadian Union of Public Employees, Local 873 (1988), 35 LAG (3d) 400; Re Bay George Residential Board Cooperative Apartment #4, Stephenville and Newfoundland Association of Public Employees (1993), 31 LAC (4th) 364. ReCorporation of the City of Calgary and Amalgamated Transit Union Local B83 (1981), 4 LAC (3rd) 50; Re Board of School Trustees of School District #67 (Delta) and Canadian Union of Public Employees, Local 1091 (Tennant) (1993), 36 LAC (4th) 94, and The Crown in Right of (Ontario Ministry of Correctional Services) and Ontario Public Service Employee Union (Mandar) (March 15, 1994), (unreported) (Waisglass) DECISION Much of the arbitral jurisprudence regarding the issue of off duty conduct and the appropriate penalty for such, refers to a principle formulated by Arbitrator Henderson in Re Millhaven Fibres Ltd and' on Chemical and Atomic Workers International Union, Local 9-670 (1976), I-A Union-Management Arbitration cases, 328. This case is referred to at page 277 of Re Nova Scotia Civil Service Commission (supra) at page 277 where it states .if a discharge is to be sustained on a basis of a justifiable reason arising out of conduct away from work, the Company must show that (1) The conduct of the grievor harms the company's reputation or product; - -. - - i , I t 20 (2) The grievor's behaviour renders him unable to perform his duties satisfactorily; (3) The grievor's behaviour leads to refusal, reluctance or inability to the other employees to work with him; (4) The grievor has been guilty of a serious breach of the Criminal Code thus rendering his conduct injurious to the reputation of the company and its employees; (5) The grievor's conduct places difficulty in the way of the company properly carrying out its function of efficiently managing its work and efficiently directing its work forces. In the instant case, the parties agreed, that although the incident took place away from the employer's place of business, this incident was not off duty conduct as considered in the arbitral jurisprudence. There can be no doubt that the grievor's conduct on October 26, 1993, was reprehensible, inappropriate and illegal. Both the union and the grievor conceded, quite properly so, that he violated a trust when he sexually assaulted Ms. X. The grievor worked a significant period of time for the employer as a Child Care Worker As such, he had constant contact with female co-workers and, at least, occasional contact with female clients. We have taken this into account in arriving at our decision. In our interim decision this Board decided that, because of the grievor's failure to request the removal of the 1989 letter from his file, it was properly in his file and therefore was \ admissible. The union was correct when it stated that the letter was approximately four years old at the time of the grievor's discharge. While we do not necessarily disagree with the union that a discipline of that age should be given less weight, in the instant case it is highly disturbing that the grievor has been previously disciplined for inappropriate sexual behaviour -- . .. , ! 21 Sexual harassment of any sort poisons the work place. It has been decided previously that sexual harassment includes a wide range of activity from unwelcome comments to sexual assault. In the instant case, the grievor sexually assaulted a young female student over whom he had authority The grievor was in a supervisory position with respect to Ms. X and participated ii1 her work appraisals. Violation of a trust relationship of this magnitude leaves him vulnerable to significant discipline by the employer Indeed, the only dispute between the parties was the appropriate level of discipline imposed. In considering the appropriate level of discipline in the instant matter, the Board has considered the union's submissions regarding mitigating circumstances. We have considered each of those circumstances and found mitigation to be wanting. While we do not dispute that the grievor was upset and drinking on the evening of October 26, 1993, neither of those factors excuse the grievor's sexual assault of Ms. X. The evidence of Ms. X was that the grievor posed provocatively, asked her to sit on his bed and to hold him, made suggestive comments and finally touched her breast. We accept all of that evidence. By all accounts, that behaviour took place over the course of an evening We do not accept that the sexual assault was a momentary abberation. Indeed, we are of the view that his behaviour was planned. The grievor knew when he asked Ms. X to babysit that they would be alone, except for his young daughter He knew that he was upset about his family situation and he also knew that he had been drinking and that he would probably continue to drink. Accordingly, he chose to put himself in a position where he was alone with Ms X under those circmnstances. It is difficult to reconcile those facts ~ ~ ,. , ! . 22 with any suggestion that his behaviour constituted a momentary abberation. That is particularly true when the grievor's record is taken into aCC01.mt. While the Board was not prepared to hear evidence regarding the incident in 1989, on its face, the letter of reprimand is persuasive. It is extremely troubling that in 1989 the grievor was found to have been involved in inappropriate sexual behaviour with a client who was a minor The grievor has twice demonstrated extraordinarily poor judgement in his relations with members of the opposite sex in his work enviromnent. The parties provided the Board with considerable jurisprudence. The union was accurate in suggesting that many grievors were returned to work subsequent to significant lapses of judgement in off duty conduct. However, we were not provided with any decision in which the grievor was reinstated where there was a suggestion of such conduct in the past. Indeed, in a number of the cases, in reinstating the grievor those Boards of Arbitration relied on the fact that the incident was isolated and that there was a remote likelihood of repeated conduct. That simply is not the case in the instant matter. We are not persuaded that the employer need not be concerned about future incidents involving the grievor. Given the past, we are not optimistic that the completely unacceptable conduct of the grievor would not be repeated. The grievor was warned in 1989 that a repeat of such conduct could lead to dismissal. We appreciate the 1989 discipline was only a letter of reprimand. However, .~ /.. . t 23 it is inescapable that the reprimand was given for inappropriate sexual behaviour similar to the behaviour at issue in the instant case. The union urged the Board to give'the letter little weight. In the consideration of the mitigation of the penalty, it is a persuasive consideration. Under the circumstances, one would have thought that the grievor was fortunate to have been afforded a second chance in 1989 and that he would not repeat his profound lack of judgement. Such was not the case. As a result, this Board is not prepared give this grievor another chance in this workplace. in cases of sexual harassment, including sexual assault, a balance must be struck between ensuring that justice is done and that the grievor does not pay too high a price for that justice. It is often suggested in the arbitral jurisprudence, that the best measure of assessing an employee's conduct in the future is to look to his/her past. In the instant case, the grievor has twice breached a trust. That fact, in and of itself, is a very serious matter It is particularly problematic when it is recalled that the grievor works with women as co-workers or charges and has authority over some women and girls from time to time. Additionally, the grievor works with children, some of whom are emotionally disturbed. In these circumstances, a consideration of the grievor's past behaviour does not incline this Board to put the women in this workplace at risk again. While this Board has some compassion for the circumstances the grievor has found himself in, we can not find his personal problems as mitigation for the penalty of discharge. There is no excuse for sexual assault. There may well be occasions where - ~ ~:; .. . t 24 circumstances mitigate the penalty of discharge. However, given his past record, this Board cannot overlook or pardon the grievor's actions of October 26, 1993. ..... When a Board of Arbitration reinstates an employee, it sends a message to the employer and the workplace that, in their view, there is a very small risk of a repeat of the occurrence. In the instant case, we cannot suggest that there is little, if any, likelihood - that this grievor will again be involved in some inappropriate sexual behaviour If we ord~red reinstatement, we would be asking this employer and his fellow workers to take a large risk and we are not prepared to do that. Alcohol intake is sometimes a mitigating factor in the arbitral jurisprudence. Indeed, the union made such a suggestion in the instant case. The evidence in the instant matter was that the grievor was not noticeably impaired. While the grievor testified that he had been drinking for some time, he conceded that he was not drunk. He explained that he is an alcoholic and that during the period including October 26, 1993, he had been binge drinking. While arbitral jurisprudence occasionally considers alcoholism as a mitigating factor in work performance and absenteeism cases, this ,is a completely different matter We are unwilling to accept that alcohol abuse forgives or ought to be considered as a justifiable reason to reduce a penalty imposed for sexual assault in the circumstances of the instant matter We are not suggesting that employees who have been found guilty of sexual assault are -------- <( ~~ . I I i t 25 appropriately discharged in all circumstances. However, society is becoming inc;:reasingly less tolerant of sexual assault. That is evident from a reading of the arbitral jurisprudence Weare buttressed in our view that the grievor ought not to be reinstated after a review of the criteria set out in Be MiIIhaven (supra.) Judge Henderson articulated a list of five factors an administrative tribunal ought to take into account in detennining appropriate penalty and whether to mitigate, a discharge. It is useful to review those factors in detail. Has the conduct of tho grievor barmed the company's reputation or product? The employer is in the business of caring for disturbed children. According to the grievor's file, he has engaged in inappropriate sexual behaviour with a client who was a minor and now he has sexually assaulted a young student in his charge This Board would be hard pressed to find that the employer's reputati9n would not be harmed by it's continuing to employ.such an individual. It may be true that in virtually every instance, all employers submit that to reinstate would cause harm to business. In this case, however, where the employer's business is the care and attending of children who are disadvantaged and dependant upon their caretakers, we are compelled to find that the reputation of the employer would be at risk within the comrmmity In view of the fact that we are confronted with inappropriate sexual behaviour and sexual assault, it would be ve-y difficult, indeed impossible, to find that no harm would befall the employer's reputation if it continued to employ the grievor Ii' ~~.~ . .' t . 26 Has the grievors behaviour rendered him unable to perfonn his duties satisfactoIi1y? Again, we must find that the answer to this question is yes. The grievor has shown by his conduct that he cannot be\trusted to care for or supervise women or girls. His attitude and approach to women as evidenced by the incidents known to this Board means that he c;:annot perform his duties satisfactorily If this Board were to reinstate the grievor, the employer would be justified in being very concerned about assigning the grievor to care for female clients. It would also be understandable if the employer would be reluctant to assign further students to the grievor Such restrictions in the assigmnent of work to the grievor must be seen as an inability to perform his duties satisfactorily Does the grievors behaviour lead to an inability of other wo.r.kem to wOrk with him? We have no direct evidence on this point. There were some suggestions by the management witnesses of potential difficulties but the evidence was insufficient to make any finding. Has the grievor been guilty of a serious bleach of the Criminal Code thus render.ng his conduct injuIiousto the general reputation of the company and iIB employees? As considered earlier, the answer in the instant matter must be yes. .(' J -~ !~ ,("- ,'4 I ! " 27 Has the grievers conduct placed difficulty in the way of the company properly carrying out its function of efBciently managing its walk and efficiently directing its working forces? The emplpyer provides a service of caring for and working with young women and girls who are disturbed or disadvantaged. The employer expressed a concern that some of its clients are very vulnerable and we find this a valid apprehension. Again, the best method of judging the future behaviour of an individual is to look to his past. Twice the grievor has breached a fundamental trust bestowed upon him by his position with the employer. We are of the view that the employer would have difficulty managing its work with the reinstatement of the grievor While the grievor seemed remorseful at the hearing into this matter, he did not express any indication that he understood how profoundly wrong were his actions of October 26, 1993. Nor did he appear to appreciate the effect of a sexual assault on Ms. X and how she might have been effected for the rest of her life. Further, while he acknowledged that he had not yet had an opportunity to apologize or give an explanation to his co-workers, he did not seem to recognize the extent of any damage he might have created. There was no indication of the grievor's understanding that the entire workplace, that is, clients I and co-workers, would have been affected by his actions. This lack of insight on the grievor's part troubles us greatly The grievor testified that he was sorry but his remorse seemed to be almost entirely for himself and his family To that extent he appears to have not yet taken responsibility for his actions. .~ !~~. ~ ( I 2201/93, 0132/94 f t ~ OPSEU (Clinton) MCSS DISSENT I have read in draft the reasons of the Vice-Chair With respect, I must dissent. It was not contested by the Umon that the gnevor had sexually touched Ms. X on the evening of October 26, 1993, or that this incident of sexual touching was a very serious ma tter Indeed, the grievor pleaded guilty to a charge of sexual assault and was fined $750.00. However, the Union pointed to several mitigating circumstances, and in my respectful view, a penalty of discharge was excessive in all the circumstances of this case. Although the gnevor knew Ms. X from work, where he had some supervisory responsibility over her in her capacity as a student on a placement program, the incident for which he was dIsciplined took place after hours and off the employer's premises. Consequently, thIS a c::ase where the tests for discipline for off-duty conduct must be applied. Contrary to the Vice- Chair's award, the Union dId not concede that this was not off-duty conduct. Rather, the Union conceded that given the fact that the grievor supervised Ms. X at work, there was a l sufficient nexus between the gnevor's conduct and the employer's legitimate interests that discipline was warranted at all for this conduct. However; it must be recognized that the employer's interest in dISCIplining an employee for off-duty conduct is not necessarily the same as with respect to work place conduct. The essence of this case was whether there were suffiCIent mitigating circumstances that the penalty of discharge imposed by the employer should be considered too harsh. In my opmlOn, there were. The grievor was upset on the night of the inCIdent due to the fact that it was his son's birthday and he had bee,n denied access to him by his ex-wife, and he had been dnnking. He gave evidence that he had an alcohol problem, and was prone to "binge dnnkmg"; mdeed, on the night m question he had been on a binge for a couple of days. These factors certainly do not excuse his behavior, but they are well recognized in the arbitral jurisprudence as mitigating factors in appropnate circumstances. After the incident, he did not in any way attempt to restram Ms. X. He showed remorse at the hearing, and pleaded guilty to the crimmal charges. He also appeared to have made sIgmficant efforts to confront his alcohol problem. All these are factors which, to my mind, are deserving of some credit with the arbItratIon board. I am partIcularly troubled by the use which has been made by the Vice-ChaIr of a 1989 letter ,of reprimand which remamed on the grIevor's file only because he had neglected to have it removed. I accept that It was a majority of thIS Board's decision that this letter, and thIS letter only, would be admissible m eVIdence m this hearing. But the Board ruled in the course of the heanng that it would not hear any eVIdence about the background to the letter The letter simply states that the grievor was repnmanded (the least serious penalty that can be Imposed in a system of progreSSIve dIscIpline) for "involvement m inappropnate behaviour of a sexual nature with a mmor chent", which was apparently following her dIscharge from the institution. We have no Idea, and ruled that we would not hear, what this behaviour consisted of. We do not know what aggravatmg factors there may be, nor what explanations the griever mIght have to offer All we really know about the inCIdent is the severity of the penalty, a reprimand. Given thIS paucity of mformation, it is not -.. .. ~ C4J I~- t~ ( t - 2 - appropriate for the Vice-Chair to pronounce that the grievor preVIously "demonstrated' extraordinarily poor judgment", or that the previous Incident was "exactly the same nature of offence as facing us" Nor does the Vice-Chair have any basis for asserting that "under the CIrcumstances, one would have thought that the grievor was fortunate to have been afforded a second chance in 1989 and that he would not repeat his profound lack of judgment" In short, we do not have the factual baSIS to be able to say whether the grievor's prior reprimand demonstrates any risk that the conduct for which the grievor was discharged is likely to be repeated. The grievor is aware of the problems he has, and appeared to have gone some distance towards addressing them. I have no difficulty with impOSIng a significant penalty on the grievor for his misconduct, but upholding his discharge will not help him put his life back in order I have some difficulty WIth a result that does not allow an employee to recover from and made amends for an error of judgment, albeit a serious one. Bearing In mind the grievor's personal circumstances, Including the impact on his family members, as well as the progress which he has apparently made in coming to terms with his underlying alcoholism, I would have reInstated the grievor, and substituted a penalty of six months' suspenSIOn without pay a ~ ~~' ~ J Carruthers I -- -- -~