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HomeMy WebLinkAbout1994-0545.SMITH_MCKINNON97_0 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO IIIIGRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G"1Z8 TELEPHONEtrELEPHONE (41(1) 32(1-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEn-ELECOPIE (41(1) 32(1-139(1 GSB # 545/94, 547/94, 2192/93 OPSEU # 994A855, 94A854, 94A044 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Smith/McKinnon) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE H S Finley Vice-Chair J C. Laniel Member M. Milich Member FOR THE D. Wright GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE J Benedict EMPLOYER James F Benedict Dispute Resolution Services Inc HEARING December 8, 1994 June 5, 19, 1995 December 6, 12, 13, 15, 18, 1995 April 25, 1996 May 17, 28, 1996 June 4, 6, 7, 21, 25, 26, 1996 August 15, 16, 1996 October 8, 10, 22, 24, 1996 November 7, 13, 1996 GSB 0545/94 0547/94 2192/93 DECISION On January 17, 1995, a Panel of the Gnevance Settlement Board, chaIred by Vice-chaIr Kaplan, issued a procedural decision In the three grievances WhICh are before this Panel. The folloWIng excerpts serve as an introductIOn to the merits of the case. On May 17, 1994, Ms. Lynn Smith, a Correctional Officer employed at the Metro East Detention Centre filed two grievances. One of these grievances alleges a violation of Article A of the Collective Agreement; the second grievance alleges a violation of Article 27 10.2, the provision guaranteeing every employee, among other things, the right to be free from sexual harassment from supervisors. The case proceeded to a hearing in Toronto at which time union counsel presented a motion that these two grievances be consolidated with a third grievance filed by Mr Michael McKinnon. This grievance, dated May 27, 1993, grieves a violation of Article A. After carefully considering the submissions of the parties, the Board advised them that it was of the view that the grievances should be consolidated,.. Reasons were set out m the declSlon but do not Impact on the merits of the case. The gnevances were referred to a new Panel for schedulIng reasons. The Panel consIdering the merIts has determIned that, whIle It was appropnate to hear the cases together, the deciSIOns should be arrIved at separately, and It therefore Intends to set out one declSlon for the SmIth grievances and a dlscrete declSlon for the McKInnon gnevance. Broadly speakIng the actions leadmg up to and follOWIng the grIevances, centred around the MetropolItan Toronto East DetentIOn Centre (Metro East), a maxImum securIty provIncIal -- I InstItutIOn housing at that tIme from 350 to 500 adult male Inmates representIng a wIde range of charges from murder, rape, and terrorist activitIes, to failure to pay traffic fines. At the time of the incident It was staffed by approximately 250 full-tIme and 50 part-tIme staff, 140 of whom were full-time Correctional Officers reporting to OperatIOnal Managers (OM 14s) at the Umt level. The OM 14s reported to OperatIOnal Managers (OM 16s) who were In charge of the ShIft (ShIft I1C), these Managers In turn reported to the Senior AssIstant Superintendent (OperatIOns) ThIS AssIstant SuperIntendent, one of several, reported to the Deputy SuperIntendent who was responsible to the Supenntendent. There was and is a combInation of eIght and twelve hour ShIftS at the InstItutIOn. In Apn11995, the posItion of OM 14 was deleted and those who were In permanent OM 14 posItIons became OM 16s and received the compensation of the higher rank. That change meant that new OM 16s also picked up additional responsibilIties and more authonty Among the dutIes of an OM 16 IS the dIsciplIne of staff and performance review It may occur that during the night-sluft, or on weekends, an OM 16 may be the senior rankmg officer In the InstitutIOn WIth the back-up of the on-call Supenntendent. More specIfically, the tnggering Incident followed an unoffiCial workplace social gathenng to celebrate a colleague's birthday at a local bar Phase I of the incIdent began With persistent InVItatIOns, and made by a male OM 14 and consistent rejectIons by a female CorrectIOnal Officer 2, durIng a mIddle-of-the-night telephone call to her resIdence on April 3, 1993 The rejectIOns were met by the story of an alleged rumour WIth sexual innuendo InvolVIng thIS CorrectIOnal Officer and a male co-worker Phase II of the Incident began at the point when the Information about the alleged rendezvous WIth its sexual Innuendo moved from being a conversatIon between these two, to others and thence Into Metro East. Once there, It developed qUickly mto a widespread and embellIshed rumour WhICh moved throughout the InstItutIon begInnIng later the same day and contInuIng for several months. 2 The setting of the alleged rumour was a hockey tournament for pohce and correctional officers held m Ottawa, over a three-day penod m February 1993 Metro East was represented by approximately 15 hockey players and 6 or 7 spectators. Mr McKmnon attended as a hockey player, Ms. Smith was imtially going as a spectator, though, m the end attended as a dart player; and Mr MelVille not at all. Mr McKmnon shared accommodatiOn With other male officers, Ms. Smith travelled and shared -accommodation With another female CorrectiOnal Officer, Juha Plover, the first night at the home of a fnend, the next two at the Hohday Inn. Contact ofMr McKmnon and Ms. Smith was limited to gr.eetmg each other at one of the hockey tournaments and attending, the evemng of the same day, a SOCial functiOn. Thelf lack of contact was corroborated by the testimony of CorrectiOnal Officers Troy Bnttam, the organizer of the tournament, who was m attendance and Juha Plover Mr Bnan MelVille, the subject of two of the grievances, has been an employee of the Mimstry of the Sohcitor General and CorrectiOnal Services since 1977 He began as a Correctional Officer 1, moved up to Correctional Officer 2 dunng his tenure, and in 1994, followmg a stmt as an Actmg OM 14, became an OM 14, m 1995, following the ehmmation of the OM 14 designatiOn, he became an OM 16 and was still serving in that capacity at the time he testified. Dunng the hearing, Mr MelVille acknowledged that he had used alcohol to excess pnor to April 1993 but maintained that smce that time, hiS use of alcohol was under control. The followmg persons testified before the Panel or played a role in the mCident and follow-up. Those With an asterisk beSide their names, testified. Management Don Cooley Actmg RegiOnal Manager, reporting to the Regional Dlfector Diane Doherty* Superintendent at Metro East at the time of the mcident, reportmg to the RegiOnal Manager and the Regional Dlfector Kevm Cowie* at the time of the inCident, Deputy Supenntendent, at Metro East. He reported to the Supermtendent and, m her absence, exercised all her duties and responsibilities. 3 Joe DeFranco* Semor Assistant Supenntendent (C) L Jeffers Security Manager Don Mikel at the time of the incident, Semor Assistant Supenntendent m Charge of OperatiOns at Metro East Alex Mitchell Semor Assistant Supermtendent ServiCes Co-ordmator of return to work programmes and accommodatiOns Jim Vance Supermtendent m Charge of Social Programmes and AdmmistratiOn at Metro East at the time of hearmg, actmg m thiS position at the time of the mcident Dan Stevens OM 16, for part ofthe time the Officer in charge of scheduling David Hill * OM 16 from 1989; m charge ofstafftrammg for a three-year penod mciuding the time of the mcident Rose Buhagiar* OM 16 smce May 1992 Brian Melville* OM 16 from April 1, 1995, hiS conduct is the core subject of the complaints. Wilham Carson Acting OM 16 at the time of the mcident Lmda Ashley OM 14 at the time of the incldent Pat Gill OM 14 - Representative for Bnan MelVille at Apnl 5th meetmg and EAP referral agent Frank Geswaldo* OM 16 Union Lynn Smith (Weaver)* Correctional Officer (C02), one of the Grievors Michael McKinnon * Correctional Officer (C02); Actmg OM 16 from January 1994 to June 1995, one of the Gnevors Don Stockwood* ChiefUmon Steward, Local 582 4 John Nichols CorrectiOnal Officer 2 at Metro East, from whom on Apnl 5, 1993, Mr McKInnon heard the rumour for the first time Michael Bunting'" Correctional Officer at Metro East from October 1984 to December 1992, later at Pembroke, close fnend of Mr McKInnon and hiS Wife Joan Serella CorrectiOnal Officer 1, partner of John Nichols on AprilS, 1993 Enza Cerqua CorrectiOnal Officer 2 who spoke WIth Mr Melville on April 3, 1993 Doug Rumboldt* CorrectiOnal Officer 2 at Metro East, who attended party at Jackhammers and who beheves he has a good relatiOnsrup with both Ms. Smith and Mr Melville Robert Hill* Correctional Officer 2 at Metro East who attended party at Jackhammers With Mr Melville Troy Brittam* Correctional Officer 2 at Metro East, on secondment to Whitby Jail at time of hearing Juha Plover* A Correctional Officer 1 at Metro East, a friend of Ms. Smith and accompanied her to Ottawa in February 1993 Angus Cheung* Correctional Officer 2 who relieved CO 2 Brittam m the Control Room for his break during the early mOfnlng of April 3, 1993, and who took the call from Ms. Smith. Other Glenn Trivett* Investigator/Inspector, Independent InvestigatiOns Umt, Management Board Secretariat Bob Cather Referral agent at InstitutiOn for the EAP specIahzmg in alcohol problems Stanley Barron, MD* PsychIatnst treatmg Ms. SmIth Barry Erhch, MD* Family PhYSiCian of Ms. Smith 5 Paul Humphries, MD'" Semor Consultmg PhysIcIan, Mimstry of SolIcItor General and Correctional ServIces. *** The followmg meetmgs concemmg thIS matter were held between Apnl 5, 1993 and Apnl 22, 1994 Both Mr Cowie and Mr Stockwood took notes of a number of the meetmgs, Mr COWles' bemg qUIte detaIled and Mr Stockwood' s less so There was only one mmor dIscrepancy between theIr recordmgs of the meetmgs. The Board considers these notes Important gIven the passage of time and the fact that the notes were made contemporaneously Meeting # 1 Meetmg WIth COWIe requested by Melville Apnl 5, 1993 (COWIe, MIkel, MelVIlle, Gill) Meeting # 2 Meetmg WIth Cowie requested by McKmnon Apnl 6, 1993 (Cowie, Stockwood, McKInnon, SmIth) Meeting # 3 Meetmg With Carson requested by COWIe Apn17,1993 (COWIe, Carson) Meeting # 4 Meeting WIth COWIe requested by Stockwood Apnl 7, 1993 (COWIe, Stockwood) Meeting # * It was not clear from the eVIdence whether or not a meetmg took place between Mr COWIe and Mr MelVIlle, followmg Mr MelvIlle's return from hIS suspenSiOn. Meeting # 5 Informal meetmg Apnl 13, 1993 (Cowie and Stockwood) Meeting # 6 Informal meetmg Apnl 14, 1993 (COWIe and Stockwood) Meeting # 7 Informal meetmg Apnl 16, 1993 (COWIe and Stockwood) Meeting # 8 Meetmg requested by Doherty WIth Melville Right after May 4th (Doherty, Melville) Meeting # 9 Meetmg With Management requested by McKInnon May 12, 1993 (Vance, Stevens, Stockwood, McKInnon) 6 - Meeting # 10 Meetmg requested by unknown May 1993 (Doherty, Stockwood, McKinnon) Meeting # 11 Meeting requested by Doherty with MelVIlle July 11/12, 1993 (Doherty, Melville) Meeting # 12 Meetmg WIth SmIth request by Doherty September 12, 1993 (Doherty, COWIe, Stockwood, Smith) Meeting # 13 There was eVIdence that a meetmg took place on thIS day but further October 26, 1993 detaIls were not available. Meeting # 14 Meeting With DeFranco requested by Stockwood November 1, 1993 (DeFranco, Stockwood, Smith) Meeting # 15 Meetmg With DeFranco requested by Stockwood November 12, 1993 (DeFranco, Mitchell, Stockwood, SmIth) Meeting # 16 Meeting with Smith requested by DeFranco January 17, 1994 (DeFranco, Jeffers, Stockwood, Smith) Meeting # 17 Meeting With DeFranco requested by SmIth April 22, 1994 (DeFranco, Mitchell, Stockwood, SmIth) Durmg the month or so following the mCIdent of Apnl 2/3rd, 1993 Mr COWIe held other bnef mformal diSCUSSiOns with Mr Stockwood and kept Ms. Doherty apprised on a regular basis. *** GRIEVANCES OF LYNN SMITH GSB 0545/94, 0547/94 Ms. SmIth was first employed as a CorrectiOnal Officer at Metro East on a casual baSIS m 1989 She became a permanent employee and worked as a CorrectiOnal Officer 2 begInning March 1990 From June 22, 1994, she had been under a doctor's care, and off work for medIcal reasons. She has been receIvmg long term mcome protectiOn (L TIP) 7 Ms. SmIth filed two gnevances on May 17, 1994 In the first she grieved that Mr Brian Melville has violated the collective agreement including but not limited to Article 27 10 1 and Article 27 10.2. This occurred on April 3, 1993 and attempts to resolve this issue have been unsuccessful to date. The settlement she sought at the date of filmg was the following' 1 Admission of guilt from Mr Melville. 2 Written apology from Mr Melville. 3 Compensation (monetary or otherwise) for my pam and continued suffering. 4 Any other settlement the board sees fit. The second gnevance stated that I grieve that Mrs. Doherty has violated my rights under the collective agreement, including, but not limited to Article A. This has been ongoing since April 3, 1993 and attempts to resolve [it] have been unsuccessful to date. As a settlement, Ms. SmIth sought 1 Admition [sic] of wrong doing 2. Letter of apology 3 No further reprisals for sick time resulting from this 4 Compensation (monetary or otherwise) for my pain & suffering 5 Any other settlements deemed fit by the Board. At the tIme of the heanng, Ms. SmIth sought to have Mr MelVIlle removed from his posItiOn as a manager in the OntarIo Public Service (OPS) on the grounds that he has demonstrated uneqUIvocally that he IS unfit to hold such a pOSItIon. Ms. SmIth described her relatiOnship WIth Mr McKmnon as "a working relatiOnship" It was not, she saId, a social or a fnendshIp relatIonshIp She first became acqua10ted WIth Mr MelVille when she became an employee at Metro East in June 1989 At that time, Mr MelvIlle was a CorrectiOnal Officer 2 Accord1Og to her, Mr Melville began working as an acting OM 14 shortly after her arrIval there and began working as an acting OM 16 shortly after she brought her ongmal complamt 10 April 1993, and became an OM 16 between that tIme and the date of the 10itIal day of hearing m June 1995 Between 1990 and Apnl 1993, Ms. SmIth and 8 Mr Melville had a relationship which could be described as "sporadIc" She testified that m the spring of 1990 they dated about five tImes and she stopped datmg him because she was not interested in pursmg a relationshIp WIth him. Followmg that, she explamed, they remamed fnends. She acknowledged in cross-exammatiOn that she went to Mr Melville's home on approximately four occaSiOns, stayed overmght on two as he dId at her home She emphatIcally rejected Mr MelvIlle's account of sexual actIVIty between them and stated m chief, m response to the questiOn "Had you ever had any kmd of sexual relatiOnship With Mr Melville pnor to Apnl 1993?" - "Absolutely not" She also dIsagreed WIth hIS version of a number of encounters whIch she acknowledged took place. In fact, there was frequent dIscrepancy in theIr respectIve recollections. She explamed that followmg 1990, they spoke occaSiOnally by telephone, chatted at work, and met at social functions they both happened to be attendmg. It was Ms. SmIth's testimony that they dId not go out SOCIally in 1991 She recalled that there mIght have been some other occasiOns on whIch she and Mr MelvIlle went out together after 1992. Ms. Smith characterized their relatiOnshIp as not a sexual one. Mr MelvIlle recalled that It was followmg a Chnstmas dance that they "first hooked up together" Between that time and Apn11993, If one were to combme the tImes they "went out together" and the tImes they got together following a social event, one could say between twelve to fifteen times. They dIscussed, according to hIm, normal everyday thmgs and work-related thmgs. He recalled on one occaSiOn discussmg Mr McKinnon and testified that on several occaSiOns they were Involved Intimately to varymg degrees. They dId not, he stated, have a "glfl-fnend"/boy.fnend" relatiOnshIp, rather, It was casual and Involved httle more than frIendship at varIOUS times. They telephoned each other on qUIte a number of occaSiOns over the penod of a couple of years, but not regularly The telephone conversatiOns seldom began With the purpose oftheIr gettmg together, but on occaSiOn, they ended up domg so, he testIfied. Mr MelVIlle alleged that Ms. Smith telephoned him m February 1993 and inVIted hIm to go to a show and he saId that he would get back to her but did not. 9 There were five mCIdents whIch took place outside the workplace and two mCIdents WhICh took place at Metro East, up to and mcludmg Apnl 3, 1993 to which Ms. Smith and Mr Melville testIfied 1 The Weddmg Reception 2. WhIstler's Bar 3 The Evemng of Dancing 4 (a) The Barbecue (b) The Donut Shop 5 The HospItal Escort 6 The Rumour Phase I 7 The Rumour Phase II 1 Wedding Reception, May 1990 ThIS reception was held m downtown Toronto and Ms. SmIth went to It WIth a male CorrectiOnal Officer Mr Melville also attended. F ollowmg the receptiOn, a party was held at a nearby hotel and as the CorrectiOnal Officer with whom she had come dId not want to attend Ms. SmIth went With Mr Melville and they subsequently went to her home "as the taxI dId not drop hIm off at ills apartment" Durmg thiS tIme the other CorrectiOnal Officer had to come to where Ms. SmIth was, (at her home) to get hIS car keys, whIch he dId. Mr Melville's version, which Ms. SmIth demes, IS that they went to hIS apartment and that they engaged m a sexual encounter Mr MelvIlle acknowledges that he was "faIrly mtoxicated"/ "very inebnated" on thIS occasion. 2. The Whistlers Bar Incident, Late Spring 1992 Ms. SmIth related her recollectiOn of the WhIstler mCIdent. At the time it took place, she was a CorrectiOnal Officer 2 and Mr MelvIlle was an OM 14 who supervIsed her regularly She stated that dunng a conversatiOn at work which mvolved some recountmg on the part of Mr Melville of some problems he felt he was havmg at work, Ms. Smith told him if he ever needed to talk, to call. Later that day, Mr Melville approached her saymg that he would like to talk WIth her but that he dId not know whether he could trust her She replIed that she thought he knew the type of person she was and that if he told her somethmg in confidence, that she would exerCIse her judgement. They did meet later at Mr Melville's apartment WhICh was not far from WhIstlers, a 10 - local bar She parked her car at IDS apartment and they went m Mr MelvIlle's car to the bar where they spent the evenmg over drinks, dIscussmg some of the problems Mr MelvIlle felt he was experiencing at work and how things were going for them in general. Mr Melville recalled dISCUSSiOn of work and also conversatiOn touch1Og on Ms. SmIth's current relatiOnshIp Ms. SmIth stated 10 her 10tervlew wIth Mr Tnvett, that Mr MelVIlle "had some doubles" She dId not comment on her mtake, except to say that "they went out for a couple of dnnks" Mr MelvIlle testIfied that he was drInkmg rum and cokes and Ms. SmIth was drInkmg beer At the end ofthe evemng, according to Mr MelvIlle sometime between 2300 and 2400 hours, they returned to Mr MelVIlle's apartment. He mVIted her to come in for a drink but Ms. SmIth said "no, she was tIred" Accordmg to her, he extended the mVItation tWIce more and she agam decl1Oed. Mr MelVIlle testified that he "persisted a bIt and she finally convmced [hIm] the answer was go1Og to be no" He acknowledged that this could have resulted m her becommg a httle ImpatIent. At that po1Ot, she stated, Mr Melville gave her a hug, pushed her up against the car door and kIssed her on the lIps. For her part, she pushed hIm away and remmded him of the fact she was datmg someone else. Mr MelvIlle's charactenzatiOn of the sexual advances m tills 10cident was minimal compared to Ms. Smith's version. He described putt10g hIS rIght hand on her shoulder and gIvmg her a "kiss on the cheek" Ms. SmIth then got in her car and drove off, Mr MelvIlle stated that he waited outside until she had gone. Ms SmIth mdIcated that she did not speak WIth Mr Melville about this evening or hIS advances to her after that evenmg. 3. Evening of Dancing, Summer 1992 Ms. SmIth went out WIth Mr MelVIlle, his brother and glflfrIend, dur10g the summer of 1992 She testIfied that she did not consIder this a date but rather "a group of fnends go1Og out dancing" After they left the "Rockmg Diner" at Don Mills and Eghnton, Ms. SmIth suggested the others should accompany her to her home m central Toronto to sleep off the alcohol rather than drIve to Oshawa, because of the amount of alcohol they had consumed. Accord1Og to her testimony Mr MelvIlle's brother and hIS gulfnend went to bed and when she herself went to bed, Mr MelVIlle was sIttmg at the kItchen table. When she awoke, all three persons had left. Mr MelvIlle related that thIS evemng 1Ovolved a sexual encounter between hIm and Ms. SmIth and 11 that he was awakened by hIS brother who, around 0400 or 0500 hours, announced he was leavmg. Smce Mr Melville was dependent on hIm for transportation (his brother was the designated dnver), he also left. 4. The Barbecue and the Donut Shop Incidents, September 1992 In the fall of 1992, Mr Melville was an OM 14 who supervised Ms. SmIth quite regularly In September, Ms. Smith, along WIth a number of staff members from Metro East, was InVIted to the annual fall barbecue at the home of another Metro East CorrectiOnal Officer Ms. SmIth testified that she arrIved on her own and dId not notice Mr MelvIlle there at the time of her arrIVal although as the even1l1g went on, she was aware of hIS presence There was a room for dancing in the basement of the reSIdence, and Ms. SmIth testIfied that she spent a good part of the evemng there. The number present dwmdled as the evening progressed. After 0200 hours a small number of mdIviduals was still there, among them Ms. Smith and Mr MelvIlle. Mr MelvIlle testIfied that he was drInking SOCIally, not too much S1l1ce he was the designated dnver, and he thought that Ms. SmIth was dnnking as well. Mr Hill testIfied that Mr Melville was IntoxIcated and he was aware that Ms. SmIth "had some drinks" Miss SmIth testified that she was participatmg in a conversation near the barbecue Shortly after, she heard someone call her name and lookmg in the dlfection of the voice she realized It was Mr MelvIlle. He was standmg on hIS own at the end of the walkway about four to five metres from the barbecue and motiOmng her to come. She left the group at the barbecue and went to where Mr MelvIlle was and when she approached, he pushed her aga1l1st the bushes by the wall and kIssed her on the bps. Accordmg to Ms. Smith, she pushed hIm away, and "motiOned to the people at the barbecue" that she was leavmg and she went to her car Mr MelVille, Ul hIS testImony, testIfied that he was downstaIrs and engaged In a bnef encounter with another female Correctional Officer WhICh was instigated by her, when Ms. SmIth came along. He stated that Ms. SmIth pushed the woman away whom he had hIS arms around and then InstIgated the same sexual advances as the other woman. He testIfied that he and Ms. SmIth then 12 moved outsIde and Ms. SmIth ImtIated sexual activIty WhICh he charactenzed as consIderably longer m duration (half an hour) and further along the spectrum of sexual actIvIty than Ms. Smith portrayed it in her testimony According to him another Correctional Officer whom he Identified, was there and observed theIr encounter (This person dId not testIfy) Another CorrectiOnal Officer, Mr Robert Hill, stopped by and spoke WIth them, accordmg to Mr MelvIlle. Mr Hill testIfied that he observed them alone bnefly, m an area besIde the house, embracmg - Just klssmg for two or three seconds, from approxImately seventy-five feet, and at one point passed "fIght by them" He did not recall any unwillIngness, on Ms. SmIth's part. Ms. SmIth testIfied that Mr MelVIlle followed her, apologized, and saId that "It would not happen agam" Once they reached the car, Mr Melville SaId he wanted to talk about It. Accord1Og to Ms. SmIth she saId that she sImply wanted to go home, but that Mr Melville kept apologIzmg, saying It would not happen agam and when he asked her agam If they could go somewhere to talk about It, Ms. SmIth agreed to go to a coffee and donut shop wruch was on the way to her house. They each drove m theIr own cars. Ms. SmIth stated that she drove quickly and thought than when she came off the hIghway, that she had lost hIm, but then notIced that she had not, and she therefore drove to the coffee and donut shop. They went in, had theIr coffee and donuts and stayed for about 20 mmutes. WhIle there, Mr Melville contmued to apologIze. They then went out to their respective cars. Ms. Smith got into hers and Mr Melville came over and got 10 the passenger seat and he leaned over trymg to hug and kiss her agam. She told hIm that If he did not stop, she would lean on the horn. He then got out and she drove home. Mr MelvIlle described this part of the event slIghtly dIfferently He stated that Ms. SmIth got mto her car on the dnver's SIde and unlocked the passenger SIde for hIm He got in and they spent, he thought, ten to fifteen minutes, during whIch time he then suggested they get a motel room but observed that she was not receptIve to thIS Idea. He thought that hIS persIstence caused her to become Impatient smce, after saymg no the first tIme, she became more forceful the next tIme. He testIfied that he asked a couple of other tImes, then "reached over and gave her another kISS on the hps, saId good-bye, got mto hIS own car and drove home. Mr Melville testIfied that thIS was the last tIme that he and Ms. Smith had any contact of "a sexual nature" Mr MelvIlle was 13 asked If "no means no only after three tImes", and then agreed wIth the statement that he was entitled to continue to press his inVitatIon, noting that he "was not forc1Og her or grabbmg her" According to Ms. Smith, she did not subsequently discuss the events of this night with Mr MelVIlle, nor dId she have occaSiOn to speak with hIm by telephone. She did however, contmue to see hIm at work and to be supervIsed by him. 5. The Hospital Escort Incident, Fall 1992 Ms. SmIth was asked dur10g her exammatiOn-m-chIef If she had expenenced any problems or 10CIdents involving Mr Melville m the workplace and she cited one whIch occurred dunng the fall of 1992. She testified that she was aSSIgned to do a hospital escort and when she reVIewed the Inmate's umt IdentificatiOn card she realized that there were senous charges pendmg against hIm and that they mvolved the use of weapons, among them firearms. Ms. SmIth testIfied that .'} she was not able to obtam what she considered to be adequate InformatIOn within the InstitutiOn and in order to obtam further mformation through a CPIC (Canadian PolIce Information Centre) check, she telephoned the Shift Superintendent's office and the telephone was answered by Mr MelVIlle. Mr Melville testified that CPIC mformatiOn had to be obtaIned from the Ontano ProvmcIal Police (OPP) and was obtained for claSSIficatiOn purposes. There is, he indIcated dIrect FAX contact between Metro East and the OPP and m case of an emergency, in whIch he ,- really needed CPIC mformatiOn in a hurry, he could call 41 DIVISIon Metro and request that a .. printout be faxed over CPIC mformation was not routinely prOVIded for hospital escorts. It is currently proVIded on inmates who are gomg for an overnight hospItal stay, and this IS the procedure to whIch the Umon has agreed. Ms. SmIth testIfied that CPIC reports were kept on the records of some inmates and she was askmg Mr MelvIlle to check that. In cross-exam1OatiOn, Mr Melville testIfied that there was no authonty to obtain CPIC reports for hospItal runs, but acknowledged that he had seen them on occaSiOns, and that while, m hIS op1OiOn they should not have been there, If they were there, the escortmg officer would have had a nght to that mformatiOn. According to Ms SmIth, Mr MelVIlle became rather hostIle and wanted to know why she was bothenng hIm WIth thIS, and asked why she could not just do the escort and leave 14 hIm alone. She testIfied that she told hIm that smce she was responsible for the custody of the mmate outsIde of the InstItution, she was entitled to the mformation that the InstitutiOn had in its posseSSiOn and told him that it would not take him long to go to the front office to retrieve the 1OformatiOn. When she stated that she would go, Mr Melville, then saId, "Forget it, I'll get back to you", he dId so later and said she should not worry about the assignment, he was sendmg two other CorrectiOnal Officers. At thiS po1Ot, she asked If the aSSIgnment change was due to her mformatiOn request and If he 10tended to share her concerns WIth the other CorrectiOnal Officers. Accordmg to Ms. SmIth, at thIS pomt, Mr MelvIlle became "qUIte hostIle" and accused her of "gIvmg hIm a hard tIme", to whIch she replIed that she was SImply askmg for mformatiOn to whIch she was entitled and that she would have asked the same of any other supervIsor In reply, he told her to "gIve hIm some time" and when they next spoke he told her that she was to go along with the other two Correctional Officers. According to her, she never did receive the mformatiOn which she had requested. She spoke to hIm later about hIS attitude towards her when she made tills request and asked why he was takmg It personally She did not recall any reply Accord1Og to Ms. SmIth, the attItude whIch Mr Melville dIsplayed on this occasiOn was not his normal attItude towards her in the workplace and that pnor to this, she had found him to be co- operatIve. However, follow1Og this mCIdent, Ms. SmIth testIfied, his attItude to her in the workplace changed. She stated "he was very standoffish around me, many tImes as If I was mvisible; he just seemed hostile toward me" 6. The Rumour Story (phase I), Saturday, April3, 1993 On the evemng of Fnday, Apnl 2, 1993, a party was held at "Jackhammers", a bar WIth pool table faCIlItIes, to celebrate the bIrthday of one of the Correctional Officers at Metro East. Jackhammers is located about 5 m10utes dnve from Ms. SmIth's reSIdence ThIS was not a pnvate party, but a get-together along WIth other customers. ApprOXImately 25 to 30 CorrectiOnal Officers attended at various times, among them Ms. SmIth, Ms. Plover, Mr Melville, Mr Rumboldt, and Mr Hill. Mr McKmnon was not 10 attendance. At that tIme, Ms. Smith conSIdered her relationshIp WIth Mr MelvIlle as that of "a co-worker, not a friend" 15 Ms. Smith testIfied that she had worked the 0900 to 2100 hours ShIft on the Fnday, went home to change, and arrIved at the party, alone, around 2200 hours. It was the first tIme that she had been to tills location. She spent the evening wIth a couple of fnends, talkmg, havmg dnnks ( a maXimum of three beers) and dancmg with her co-workers. Ms. Plover testIfied that she herself arrived at approximately 2100 hours and left between 2300 and 2400 hours She spent about an hour of that tIme talkmg With Ms. SmIth at the bar Ms. Smith s contact WIth Mr MelVIlle that evemng consIsted of theIr greetmg m passmg and later, a single dance together Neither 10dIcated a wish to get together followmg the party and Ms. Smith testified that she dId not mVIte Mr Melville to telephone or 10 any way to partICIpate 10 a relatiOnshIp With her She was asked to comment on Mr Melville's sobnety She responded that she knew "he was dnnk1Og; he was speak10g clearly, walking straIght" Ms. Smith testified that she left the party alone at approXImately 0130 hours on Saturday morn1Og. As she left, she noted m her mtervIew With Mr Tnvett, she saId good-bye to a group of people and gave Rob "a kiSS on the cheek and a common hug" She then went to her home where she lived WIth her mne-year old son and her mother and, at the tIme, a boarder who was a friend of the famIly also resided in the home. On her arrIval, she went to bed. In the early hours of the morning, a telephone call was received at Metro East and the person who answered the telephone was CO 2 Troy Bntta1O. Mr Bnttain testified that he could not recall whether Mr MelvIlle identIfied hImself or not but that 10 any case, he recognized his VOIce. Mr Bnttam explained that in the Control Room there IS a Rolodex whIch lIsts the home telephone numbers of most of the CorrectiOnal Officers work1Og at the Institution. If an officer does not want his or her phone number given out, he/she IS at liberty remove the card from the Rolodex. He therefore consulted the Rolodex, and found a card for Ms. Smith and found there were no restnctlOns listed. Because he knew who was makmg the request, he gave out her telephone number Mr Brittam was asked to comment on Mr Melville's speech and hiS opmIon of hIS state of sobnety, and he testified that he felt he was a little inebriated. His speech was slurred and it took him a few tries to get the number right, so in [his] opinion, [he thought] he was drunk. 16 Mr Bnttam v rent on hIS break shortly after thIS and when he returned, he was told by CO Angus Cheung that he had received a phone call from Lynn SmIth, that something had happened and that he had passed the call through to OM 16 Carson who had asked him for a report. Mr Bntta10 then informed Mr Carson that he had been the person to pass Ms. SmIth's number to Mr Melville. Mr Bnttam explained to Mr Carson who had recently come on staff from another prison, that the release of telephone numbers to colleagues was a normal and accepted procedure. Mr Bntta10 was not asked to write a report. At approxImately 0230 hours, Ms. SmIth received a telephone call from Mr MelvIlle (Telephone ConversatIon # 1 - MelvIlle/SmIth) She stated that he asked her to come out for coffee, then saying that he wanted to see her Ms. SmIth asked Mr MelvIlle where he was telephomng from and he told her that he was calling from a phone booth at a car dealership in PIckering and that Robert Hill had driven hIm there. Mr Melville persisted, accord1Og to Ms. Smith, suggesting that they could go for coffee, then "that he come over" saying that "he really wanted to see [her]" According to Ms. SmIth, Mr Melville contmued to perSIst, she continued to dec1me, and finally, Mr MelVIlle saId "I'm not surpnsed after what I heard about you in Ottawa" Ms. SmIth testIfied that she asked rnm what he was talkmg about and he proceeded to tell her that she "had been WIth someone m Ottawa" (Ms. Smith's words), and when she asked him what he was talkmg about, he said "Why, of all the people in the world, why hIm, how could you be With hIm?" (Ms. SmIth's words) According to Ms. Smith she asked hIm who he meant by "him", and he rephed, Michael McKinnon. Then Ms. SmIth asked where he heard thIS and she testified that he refused to tell her She asked hIm numerous tImes where he heard the mformatiOn and as she dId so, she testified, she became 10creasingly angry And finally SaId "how dare you phone me at this tIme of night and accuse me of thIS", and she testified that Mr MelVIne stated that he was "sworn to secrecy" In hIS cross-exammatiOn Mr MelvIlle stated that he thought that he heard thIS rumour well mto the mght at Jackhammers. He dId not know from whom he thought he heard It and when pressed WIth possible persons as sources, he dId not name anyone, but explamed that he "was very mebnated" He acknowledged that he had not heard the run10ur pnor to the evenmg at Jackhammers, nor was he aware of anyone else who had. 17 Mr MelvIlle testIfied Imtially that he was "not 100% sure, but Mr McKmnon had "several relatiOnshIps wIth women or attempted relationships" and [he] was gomg to warn [Ms. SmIth] about that", then had mfornled Ms. Smith of this rumour because he thought that she should know that such a rumour was about. Ms. SmIth dId not agree with thIS explanatiOn. She testIfied that It was somethmg she had not heard before, and that she dId not belIeve that Mr MelvIlle had heard It previOusly Ms. SmIth had never heard any allegatIOn, rumour, or even hmt, of a relatiOnshIp between herself and MIchael McKInnon. She was qUIte certam that If the rumour had been float1Og around the InstitutIOn that she would have heard It, as that IS the nature of the place. She mterpreted It as a reactiOn to her rejectiOn of hIm, an 1OterpretatiOn reJected by Mr MelVIlle. Ms. SmIth acknowledged that Mr Melville had not made a speCIfic threat agamst her durmg the telephone conversatIon but explamed that, she found the conversation on the whole, rather threatemng. Ms. Smith expla10ed that she was very upset, angry, yellIng and probably usmg profamty Her son who had woken approached her and asked "who was threatemng her" At thIS po1Ot "the phone call ended" It was Ms. SmIth's Impression that Mr Melville's VOIce and speech were clear dunng theIr conversation, although she knew that he had been drinking at Jackhammers and was aware of hIS drInking habIts. She had also been aware for some tIme that the relatiOnshIp between Mr Melville and Mr McKinnon had been acrimonious. Accordmg to her, Mr Melville "hated Mr McKInnon" Ms. Smith stated in cross-examinatiOn that the conversation was a long one and acknowledged that she could have hung up at any tIme but that she wanted to see If he would give her the source of the rumour She dId not say who term10ated the call. Accordmg to Ms. SmIth, she then calmed her son, returned hIm to bed, and, havmg heard the boarder movmg around, went downstaIrs to use the extensiOn in IllS lIVing room so that she would not dISturb her son again. At thIS pomt she was stIll upset and m tears. She telephoned Mr Melville's house and left a message telling hIm that "If he knew what was good for him, he would call back that mght" She explamed she attempted to contact hIm because she wanted to know the source of "the story" She acknowledged that her message sounded like a threat, and 18 stated she intended It to, although she had not thought through any consequences It was simply that she was extremely upset and angry Ms. SmIth then telephoned Robert Hill, the Correctional Officer at Metro East, who had driven Mr MelvIlle home, and left a message for hIm. After some time had passed, she deCIded that she would try to telephone Mr MelvIlle again, and testIfied that when she pIcked up the telephone to do so, he was on the lIne (Telephone ConversatiOn # 2 - Melville/SmIth) Ms. SmIth testIfied that she again pressed Mr MelvIlle on the source of the allegatiOns concern1Og herself and Mr McKInnon, but "stIll got nowhere" At one point, Mr MelvIlle brought up the Issue that she had nommated Mr McKinnon for the pOSItIon of VIce-preSident of the local, and she asked him if he was saY10g that because she had nom1Oated hIm that she was therefore sleepmg With rum. (Ms. SmIth testIfied that she had nominated Mr McKinnon for that pOSItIOn.) She did not recall Mr Melville's response, If any In Ms. SmIth's interview with Glen Tnvett, she stated that "he [Mr MelvIlle] was becommg hostile m tone" Durmg thIS conversatiOn, Mr MelvIlle asked if she was tapmg the call and she replIed that she was not but that some one was slttmg beSIde her (This was the boarder) Mr Melville told her that he too had a Witness. He then asked her what she 10tended domg about "It" and she SaId that she dId not know, to which he rephed, accordmg to Ms. SmIth, "I suppose you're gomg to stab me in the back like the rest of them", nammg Mr McKInnon and another CorrectiOnal Officer Ms. SmIth testified that she then reIterated how upset she was and by thIS time It was about 0330 hours and she said to Mr Melville that smce she dId not expect that would be able to get any sleep, that "there was no way she would be able to go mto work, thanks to [him]" She was scheduled to work 0900 to 2100 hours on Saturday, Apnl 4th. Mr Melville asked her If she would lIke hIm to telephone work and see if he "could get [her] a lIeu day or somethmg" She told hIm that after all that had transpIred WIth thIS telephone call that she dId not want any favours from hIm, and the conversation ended. Mr Melville explained hIS actIon 10 offering the lIeu day as follows "I [was] trymg to remedy a SItuatiOn, the situatIOn be10g that this woman was up extremely late and partly due to my actions" He testIfied that at the time of the hearmg he 19 did not beheve there was anythmg wrong with hIS makmg the offer "m thiS context" He saw himself not benefitting m any way and, in fact, he believed that m makmg the request, he would have revealed that he was responsible for the SItuation. Ms. SmIth dId not recall who terminated the telephone call. 7 The Rumour (Phase II), Saturday, April 3, 1993 Onwards Phase II begms when the allegatIon made by Mr MelVIlle to Ms. SmIth, moves beyond the knowledge of those two mdivIduals. Followmg her second conversatiOn wIth Mr MelVille, (She was not absolutely certam of the order) Ms. SmIth spoke wIth Robert Hill (Telephone Conversation # 3 - Hill/SmIth). She asked If he had been there to witness Telephone Conversation # 1 and he stated that he had not but had remained m the car She told Mr Hill that Mr Melville was accusmg her of sleeping with Mr McKmnon and asked hIm If he knew anything about this. He replIed that he did not, and commented, accordmg to Ms. Smith, that he thought Mr Melville was makmg it up and was obsessed WIth her and mentioned that when she had left Jackhammers. Mr Melville had approached him, asking If she had left, and on being told that she had, mquired as to whether she had left wIth someone, or on her own. That was the extent of the conversatiOn, according to Ms. SmIth, and she dId not recall any request on her part to keep theIr conversatiOn confidential. Mr Hill testified that he receIved that message on hIS return home at about 0345/0350 hours. He returned the telephone call and understood from theIr twenty-mmute conversatiOn and the tone of her voice, that Ms. SmIth was upset by the telephone call she receIVed from Mr MelvIlle whom she saId had wanted to come over and who had accused her of havmg an affair with Mr McKinnon at a hockey tournament m Ottawa. Mr Hill testIfied that he had never heard thIS rumour before, definitely dId not hear It at Jackhammers, and that thIS was the only tIme that he spoke to Ms. SmIth and Mr MelVIlle about the 1OCIdent. Ms. SmIth then telephoned Metro East and asked CO 2 Angus Cheung to dIrect her call to the Shift Supenntendent's office She spoke WIth OM 16 Wilham Carson, the ShIft I/C and told hIm 20 that she would not be commg 10 for her Saturday shift. Accordmg to her, he asked If anyth10g was wrong, as she was "tearful" at the tIme. She explained to him that she was not sick but that she was very upset as she had receIved an upsettmg telephone call from a SupervIsor He asked If she wished to provide details and she stated that she dId not WIsh to say anythmg further; he mqUIred If she was going to be alnght, and she explained that someone was WIth her Shortly after 0400 hours, Ms. SmIth receIved a telephone call from OM 14 Linda Ashley who had been asked by Mr Carson, to contact her and see that she was all nght as he was very concerned about her Ms. SmIth expla10ed to Ms. Ashley that someone was there WIth her Ms. Ashley mqUIred as to the details of the mcident and Ms. SmIth told her that she was not prepared to talk about it at this time. She explained in cross-examinatiOn that this was because she was still very upset. Ms. Ashley asked If the party concerned had been dnnkIng that evemng and, when Ms. SmIth responded that he had, Ms. Ashley, said that she thought she knew who was be10g talked about. Ms. Smith told Ms. Ashley that, while she was not SIck, she did not see why she should have to use a credIt for not being at work on that day when a Unit Manager had caused the sItuation. According to Ms. SmIth she asked Ms. Ashley "to keep It to [her]self' as she dId not want any names dIscussed. NeIther Ms. SmIth nor Ms. Ashley mentiOned any names. At 0425 hours OM 16 Carson filed an Occurrence Report dIrected to Ms. Doherty mform1Og her of the telephone call, of the fact that he had asked OM 14 Ashley to call Ms. SmIth ('as he was concerned for the well bemg of the officer", and that he had 1Oformed Mr Vance, who was Actmg SOCIal Program AdmImstrator and who was the semor person on call and responsible for the InstItutIon that mght. OM 14 Ashley also filed an Occurrence Report dIrected to Ms. Doherty following her telephone call to Ms. Smith at 0440 hours. She confirmed Ms. SmIth's upset state and noted that she did not want to provide details, other than that ('a unit manager phoned her and made lewd and uncalled for accusatiOns about herself and another person", untIl she had spoken WIth a unIon representatIve. 21 Ms. SmIth placed a second call to the InstitutiOn and thIS time spoke to CO 2 Cheung who answered her call1l1 the Control Room. She asked if there were any umon representatives working that mght and when he informed her that there were not, she asked for the home telephone numbers of the PresIdent of the Local (Derek Miller), and of the Vice-presIdent (Michael McKmnon), and these were gIven to her At 0500 hours C02 Cheung filed an Occurrence Report detaIhng hIS telephone calls from those involved. Ms. Plover came on duty at 0700 hours on Saturday mormng and was scheduled to work a 12- hour shift. She testIfied that up on the floors she heard a rumour that Lynn Smith had gone home in tears shortly after her shift had begun, because BrIan MelVIlle had telephoned her the mght before and accused her of sleeping with Mike McKinnon in Ottawa. She smd that when she eventually contacted Ms. SmIth, she was told that she had left the Institution because she was upset. She was crymg on the telephone. Following Telephone ConversatiOn # 3, Ms. SmIth testIfied, she then spent several hours, tearful and feel1l1g upset, angry, and nauseated. She went to bed about 0900 hours on Saturday morning and awoke up in the late afternoon. Her mother informed her that JulIa Plover, from Metro East, had telephoned her and she eIther returned the call or was telephoned by Ms. Plover after 1600 hours. Ms. Plover inqUIred whether or not Ms. SmIth was all nght, and then said "what IS thiS I hear about your and Mike McKInnon?" Ms. SmIth asked her what she was talkmg about and Ms. Plover saId that these rumours were go1Og around the InstItution and that Mr Melville had somethmg to do With It. According to Ms. Smith, she wanted to know the connectIOn between the rumour and Mr MelVIlle's name COID1l1g 1Oto It. Ms. SmIth then told Ms. Plover that she had receIved a telephone call from Mr Melville and that "Bnan MelvIlle had accused her of screw10g around with Mike m Ottawa." Accord1l1g to Ms. Plover tlus telephone conversatiOn was a confirmatiOn of the rumour which she had heard earher in the day She dId not, she testified, share this rumour With anyone else. She was asked, 10 the context of the frequency of rumours at the InstItutiOn whether or not she had previously heard a rumour whIch suggested that co-workers were sleep10g together She replIed that she had not. 22 On Sunday, Apnl4th, Ms. Smith went to the InstItutiOn to work her 0900 to 2100 hour ShIft. As she was commg though the sallyport, there was a group of approxImately three Correctional Officers at the 1 B desk. As she came m, she was approached by the Institution Nurse who asked If she was alright and said to her that there were "all klllds of rumours gomg around the InstItution" Ms. SmIth said that she did not WIsh to dISCUSS the matter Ms. SmIth then went to her locker and returned to the 1 B desk where there were two female CorrectiOnal Officers workmg. One of them mqmred whether she was alnght and told her that there were lots of rumours gomg around even a rumour that she had been raped. ThIS mdIvIdual also mentiOned Mr MelVIlle's name. Ms. Smith stated that she dId not want to comment on the rumours. Ms. SmIth was assigned that Sunday morning to be a "VISIts runner" As part of that assignment, she went to the landmg on Dmt B to pIck up an Inmate and when she got off the elevator, she was approached by a male Correctional Officer who gave her a hug. This was the first time she had received a hug from this person and she testIfied that she was surpnsed, but m no way was offended. He was advised by an OM 14 who observed hIS action that he should not do that and the CorrectIonal Officer then went to speak to the OM 14 During this conversatIon, Ms. SmIth testIfied, she went into the office and spoke to Ms. Plover who was sittmg and waitmg for her partner, the Correctional Officer who had hugged Ms. Smith. Ms. Smith told her the name of the inmate for whom she was waiting, sat down, and saId that she did not want to talk about anything. The male Correctional Officer returned to the office from his conversation and, according to Ms. Smith, apologized for upsetting her, given the CIrcumstances. He then SaId "you know who is gOlllg to hit the roof when he hears about this", and when Ms. Smith asked what he meant, he rephed "you and I both know who were are talking about" Ms. SmIth testIfied that she understood that he was referrlllg to Mike McKInnon and mformed this Correctional Officer, that she was not saymg anythmg. Ms. SmIth began trymg to contact Mr McKInnon followmg this and she left messages with hIS wife. Mr Mikel, the Semor ASSIstant Superintendent (OperatiOns) recorded m a memorandum to Ms. Doherty dated AprilS, 1993, that on the same day, he telephoned Ms. Smith and told her that he 23 was aware she nllght have a compla1Ot, and he offered hIS aSsIstance, provIdmg her wIth the names and numbers of several mImstry advisors. He asked her if she could help the 1OvestIgatIon by providing the name of the manager and other details, and was advised that at the present time she did not wIsh to proceed With a complamt but that she wIshed to consult wIth someone. In hIS memorandum of Apnl 5, 1993, to Ms. Doherty he recorded that he told Ms. SmIth, should she WIsh to proceed WIth her compla1Ot she should telephone hIm, that an mvestigation would be done and would be conducted m a confidential manner This memorandum with the Occurrence Reports of OM 16 Carson, OM 14 Ashley and C02 Cheung was forwarded to Ms. Doherty who sIgned as having read them as of Apnl 7, 1993 On this same day, April 5th, Ms. SmIth was told by her mother on her return home from an appointment, that she had spoken to Mr McKinnon who had reassured her there was no truth to the rumours. Ms. Smith eventually spoke with Mr McKinnon on that day She was informed by eIther Mr McKinnon or Mr Stockwood that a meet10g was to take place on the followmg day Meeting # 1- Monday, AprilS, 1993 -1400 hours Requested by Pat GIllon behalf ofBnan MelvIlle to report and discuss an alleged occurrence of April 2nd/3rd involving Ms. Smith. Attended by Mr Cowie and Mr Mikel, Mr MelvIlle and Ms. Gill *** Meeting # 2 - April 6, 1400 hours Requested by Don Stockwood on behalf of Michael McKmnon Attended by Mr Cowie and Mr Mikel, Mr Stockwood, Mr McKInnon and Ms. SmIth. A meetmg 1Ovolvmg only Mr COWIe and Mr Stockwood took place ImmedIately after the larger meet1Og. Although thIs was her regular day off, Ms. SmIth wanted to attend the meeting and came mto the InstItution. She asked Mr Stockwood to represent her Mr COWIe took detailed notes of the meetmg and Mr Stockwood took selective notes of thIS meet10g and both were entered 10 eVIdence. 24 At the outset of the meet1Og, Mr CowIe asked Ms. SmIth to leave the room bnefly as he wanted to ensure that she was not bemg pressured to attend by Mr McKInnon or Mr Stockwood, and that he would get independent view of what had taken place. Ms. SmIth assured Mr Cowie that she had 10SIsted on bemg present when she heard of the meetmg. She told hIm that she felt It would be unfaIr to dISCUSS a matter 10 whIch she was concerned wIthout her being present. Accordmg to the notes taken by Mr Stockwood, by far the greater part of the meetmg consIsted of Ms. SmIth recount1Og the events of the night of Apnl 2nd and the early mornmg hours of Apnl3rd. She testified that at the meeting she recounted the evemng activIty on Apnl2nd, and then outlmed the telephone call and the accusatiOn made by Mr MelVIlle and subsequent rumours around the InstitutIon. She po1Oted out that the rumours were contmumg. She did not recall Mr COWIe askmg for detaIls of her pnor relatIonshIp wIth Mr MelvIlle. It was her Impression, she SaId, that Mr COWIe was taking the compla1Ot senously, although she was never aware of any steps taken to stop the spread of the rumours. She thought that Management could have issued a statement that rumours of thIS type have a pOIsoning effect on the work environment and would not be tolerated in the InstitutiOn. Mr Stockwood testified that Mr CowIe stated that he would get back to the complainants and/or the Umon and let them know "If the allegations were founded" *** Meeting # 3 - April 7, 1993 - 1100 hours Requested by Mr CowIe Attended by Mr Cowie and Mr Carson Mr CowIe spent approxImately half an hour speaking WIth Mr Carson. OM 16 Carson had been the Shift Supenntendent on duty on Apnl3, 1993, when both Mr MelVIlle and Ms. Smith had telephoned the Institution, and Mr COWIe wanted to speak WIth hIm to determine If he had informatiOn over and above that whIch was 10 the Occurrence Reports. Mr Carson conveyed to Mr Cowie that he received a telephone call from Mr Melville, whom he recogmzed by hIS VOIce. He wanted Ms. SmIth's number At the time Mr Carson wondered why, but dId not ask. He provIded the number and noted that Mr Melville sounded "a bIt under the weather" Mr 25 Carson emphasIzed that when he spoke WIth Ms. SmIth, she was "crymg/upset - very upset" and that he "was afraid someone had broken in or somethmg. [He] was really concerned for her because she was so upset" Mr Carson indicated to Mr Cowie that he telephoned Mr Vance at home, as he was on call, and advised him there were Imphcations for the day ShIft of which Mr Vance was m charge He also stated that Mr MelvIlle had not asked hIm to arrange time off for hImself or for any other employee. He reassured Mr Cowie that he had not dIscussed the matter WIth anyone other than with those wIth whom he had already spoken. Mr CowIe asked hIm to keep the 1OformatiOn confidential and stated the follOWing I appreciate the fact that you took the employee's concern seriously and that you took immediate steps to address the matter further by having Ms. Ashley phone for additional info It is obvious you are aware of an obligation to act on information we receive.. *** Meeting # 4 - April 7, 1993 - 1350 hours Requested by Mr Stockwood Attended by Mr Cowie and Mr Stockwood Mr COWIe recalled that the meeting was to adVIse him as to how the complamants Wished to proceed, that is, through the Independent Investigations Unit (formally or informally), through another outside investigatiOn, or through an mstItution-based mvestIgatiOn. The process, as he understood it, was complainant dnven. Both Mr COWIe and Mr Stockwood took notes of thIS meetmg. Mr Cowie did agree to speak with Mr Melville to see when and from whom he heard thIS rumour He was not prepared to provide mformation on what steps had been taken WIth respect to Mr Melville, but told Mr Stockwood, in confidence that he had suspended hIm for five days, although eVIdence does not show that he mentioned that it was a suspenSIOn with pay Mr Stockwood acknowledged that he dId not respect this confidence *** 26 On AprIl 8, 1993, Mr CowIe contacted RIta Cole, an Investigator wIth the Independent InvestIgation Unit, to get advIce, now that he had the mformatiOn, on how he should proceed and what he was permitted to do in the way of reportmg. She advised him to make a report to the Supenntendent and to try to determme how the complamants wished to proceed. He was told that until there was dIrectiOn from the complainants, he could do nothmg further FlVe days after the meetmg on Apnl 6th, Ms. Smith had heard nothmg and she spoke wIth Mr Stockwood and asked If he heard anythmg from Mr CowIe and was told that he was stllllookmg into the matter and was seekmg clarificatiOn from the Supenntendent, Ms. Doherty After that, she stated that she heard no more until shortly before the start of the hearmg m June 1995 At that pomt she dIscovered that Mr Cowie undertaken an mvestIgatiOn and reached conclusions. She also, at that tIme, obtained a copy of a memorandum which Mr Cowie sent to Ms. Doherty with his recommendations. She had never been mformed of those results by anyone from Management. Meeting # 5 - April 13, 1995 Informal meetmg attended by Mr CowIe and Mr Stockwood Mr CowIe and Mr Stockwood spoke briefly in the workplace and Mr COWIe indIcated that he needed to know how the complainants wIshed to proceed. Mr Stockwood told hIm that he would get back to him later *** It was also on April 13, 1993 that Ms. Smith filed an Employee IncIdent Report (Form #7) respecting the mCIdent of Apnl 3, 1993 She put m a WCB claIm for, m lost tIme due to, m the words of OM 14 J R. Duncan, "emotiOnal stress from ongoing investigatIon." 27 Meeting # 6 - April 14, 1995 Informal meetmg attended by Mr CowIe and Mr Stockwood From this meeting, Mr CowIe testified that he understood that Ms. SmIth wanted to proceed 1Oformally Mr Stockwood testIfied that he drew Mr Cowie's attention to an inCIdent that occurred when he, Mr Stockwood, was m the pool room area. a male CorrectiOnal Officer entered the room and was making comments about Ms. SmIth and the mCIdent, saymg that Ms. Smith was not gomg to file a complamt and commenting that "she got what she deserved" (Mr Stockwood's words in testimony) Mr Stockwood stated that he approached thIS mdIvIdual and lllformed hIm that mdeed there was a complaint filed and smce he did not know all the facts he should therefore not be commenting one way or the other The Officer then turned and walked away Mr Cowie agreed to speak WIth the person and advise him to refralll from such remarks. *** Meeting # 7 - April 16, 1993 Informal meetmg between COWIe and Stockwood Mr Cowie testIfied to thIS meetmg, although Mr Stockwood dId not. The precise purpose of the meeting was not witrun Mr Cowie's recollection but he testified that he was trying to identify clearly how Mr McKinnon and Ms. SmIth wished to proceed and to establIsh the steps necessary to resolve the ISSUe. *** From the tIme that Ms. SmIth was confronted with the allegatIon and the subsequent rumours at the InstitutiOn, she began to experience a recurrence of anxiety/panIc attacks WIth phYSIcal symptoms that were most severe when she attended at the InstitutiOn. On Tuesday, Apnl 13th, she came to work and began to experience an attack as she approached the InstitutiOn. She stated m cross-examlllatiOn that she had expenenced such attacks in the past. She managed to enter the Institution but after bemg there for a short tIme felt that she SImply had to leave because the feelmg of panIC and the physical symptoms she was expenencmg had become overwhelmmg. She mformed someone, she did not recall whom, that she was leavmg. That same day she 28 attended at her famIly physicIan's office. She was provIded wIth a prescnptIon and told to stay off work 10defimtely This was the first time that she had expenenced such a severe reactIon and had required this type of medication. Ms. Smith testified she had not previously been involved m specIahzed treatment for emotIonal upset or psychIatnc disturbance The only counselhng m whIch she had ever partICIpated was counsell1Og to aSSIst her son, and she was domg that at the same tIme as this problem arose. There was, she expla10ed a family component to the counsell1Og. As suggested by Ms. Cole of the I.I.U , Mr COWIe wrote a confidentIal memorandum to Ms. Doherty concerning "HARASSMENT COMPLAINT - MS. L SMITH" on Apn127, 1993 He specIfied that on Apnl 6, 1993, havmg heard that both Mr Smith and Mr McKinnon mIght be contemplatmg complaints under the WD HP, he had adVIsed them of referral telephone numbers and outlmed some of the formal optIons available to them. They were . Fil10g a grievance . Complaming to the Ombudsman . Independent Investigations Unit . Management Board Secretanat . CIVIl actions Ms. Doherty responded on May 3, 1993, and in her memorandum referred to a meet10g WIth Glen Tnvett (April 29, 1993) from the I.I.U She asked Mr COWIe to contact a representatIve from the I.I.U to have himlher contact the complainant to learn how she was proceeding and to determme If "we can get her back to work in some capacity or even 10 another locatiOn" She testified that she conSIdered that the I.I.U 10 ItS role as adVIsors would aSSIst In Ms. SmIth's return to work, even though It was po1Oted out m cross-examination that the I.I U does not have any role, 111 medIation or otherwIse 10 putting people back to work. Ms. Doherty was, 111 effect, unable to CIte another case in whIch the I.I U had filled that role. 29 Ms. Doherty noted m her memorandum that "we do not know details of her medIcal condItion" Ms. Doherty stated m her testimony that Mr Mitchell would have had that information and that she would expect Mr Cowie, as her Deputy, to take care of the matter and, as part of that, to check files and to check with Mr Mitchell. She herself was not aware of Ms. SmIth's medical conditIon and did not consider ask10g Mr Cowie or Mr Stockwood what could be done to aSSIst Ms. SmIth 10 returning to work. She explamed that Mr COWIe was a "very expenenced deputy" and she dId not ever have to mform hIm of all the steps to be taken in order to do somethmg. Ms. Doherty testified that She felt responsible that something may have been happening in the Institution or with [her] employees that may have been of some concern and that [she] wanted to do [her] utmost to deal with this situation. Also, if an outside body was conducting an investigation it would not be appropriate for [them] to be doing one also. [She] asked Mr Cowie to contact the I.I.U because they not only complete investigations concerning WDHP policy but they act as expert advisors to all employees, and she wanted Mr Cowie to use the report of the I.I.U to be an unbiased intenuediary to advise us if they had received a complaint and if not was there something [they] could do to get Ms. Smith back to work. The following memorandum was sent from Ms. Doherty to Mr COWIe on May 4, 1993 The subJect was IdentIfied as "INVESTIGATION RE. MR. B. MELVILLE/SMITH INCIDENT - APRIL 2/3,1993" and the memorandum read as follows. I have read your report and reviewed the findings contained it. To date we have not received confinuation as to how the complainant has chosen to proceed. We have agreed through consultation with the I.I.U that we will ask for their assistance. a member of the I.I. U will contact Ms. Smith to offer the services of the unit. Could you please contact the advisor from Management Board to confirm if they have received a complaint as yet. If Ms. Smith has chosen to proceed with a formal investigation, an outside body will be conducting the investigation and our investigation will cease. Your report has confirmed that Mr Melville has been forthright in admitting that he has an alcohol problem. He has also offered to participate in treatment. Given the fact that Mr Melville has self-disclosed it is now our responsibility to ensure that Mr Melville does receive the treatment he requires. I will write to the Regional office to seek authorIty to order Mr MelVille to take a mandatory medical. I concur with your recommendation to organize an opportunity for Mr Melville to apologize Could you please ask for the assistance of the 1.l.U to do this since they have already offered to act as advisors and assistants in this case. 30 Thank you for your report. I will advise you when we have been provided with authonty from the region to proceed with the mandatory medical. On May 11 th, Mr CowIe sent a follow-up memorandum to Ms. Doherty mforming her that he had contacted a representative from the I.I.U about Ms. Smith and that an Investigator had already been In touch WIth Ms. Smith and would be takmg an informal complaint from her The lllvestigator was also expected to examllle the possibIlIty of assIsting m the employee's return to work at the earlIest possible date. Further to your correspondence of May 3, 1993, and May 4, 1993, on the above captioned topic, please be advised of the following. I have been advised by a representative of the Independent Investigation Unit that: - on May 7, 1993 [sic] [This was the date of his interview with Mr Trivett; according to Mr Trivett, he filed his complaint on April], Mr M. McKinnon, C.O 2, filed a formal complaint, re: this OCcurrence - Ms. L. Smith has been contacted by the I.I.U and will also be proceeding with an mformal complaint - After conducting an investigation, the I.I.U will determine If a meeting between the complainants and respondent for purposes of an apology is an appropriate course of action. Please be advised based on your memorandum of May 4, 1993, all internal proceedings have ceased with respect of this matter Mr Cowie testified that he believed that It was important to Ms. SmIth that the conduct stop {clarIfy this, no recurrence from bm, and/or the rumour) and he beheved that an apology from Mr MelVIlle would go some dIstance to bnng closure to It for her He saw the Employer's role as facilitatmg the opportunity for an apology to take place, partIcularly smce Mr Melville had llldIcated a willingness to apologIze Mr Melville maintamed hIS WIllmgness to apologIze to Ms. SmIth "for callmg her at that tIme of night" Mr CowIe also was of the opmion that smce Mr Melville had acknowledged his alcohol abuse problem, that he, Mr CowIe, as the representatIve ofthe Employer, had some responsibility to make hIm address It. He testIfied that smce the purpose of direction was workplace discrimination and harassment prevention and since Ms. Smith made it very clear that all she wanted was for the conduct to cease and [he] was satisfied that [they] could meet their objective and clearly educate Mr Melville, the conduct would cease and [they] could have made [their] objective. 31 Mr COWIe explained that once the matter was left with the Super10tendent and a formal investIgation had begun, the implementmg of his recommendatiOns was out of hIS hands. Mr COWIe was asked m cross-exammatiOn, what steps he took to prevent the cIrculatIon of the Innuendos and allegatiOns respect10g Mr McKInnon and Ms. SmIth. He replIed that he had removed Mr MelVIlle from the workplace, told Mr MelvIlle and Mr Carson not to dIScussIon the Issue, ensured that the meetings he held were 10 prIvate, and considered how the Issue could be addressed WIthout prolIferating It. He dId not thmk a genenc memorandum respectmg the spreadmg of rumours would be a VIable optiOn. On May 14 1993, Ms. Smith was interviewed by Glenn Tnvett from the Independent InvestigatIons Unit. At that tIme she gave and SIgned a statement and on May 20th Mr Trivett telephoned and spoke to her There was no eVIdence respecting the purpose or the content of tills telephone call. Mr Bnttam testIfied that he had a dIScussIon Wlth Mr COWIe who telephoned hIm durmg his secondment whIch fimshed m September 1993 and asked hIm a series of questions. On July 13, 1993, Ms. Smith was sent the following letter from Ms. Doherty. In response to your harassment complaint concerning Mr Melville, I requested that the Independent Investigations Unit complete an investigation. I am now in receipt of the Inspection Report. There is no evidence in the report to support your allegations. \ There were some comments contained in the report concerning Mr Melville's behaviour, however, which have been addressed. Please feel free to contact an advisor if you wish to present any questions about the Investigation or about the investigation process. Mr Mitchell will be contacting you to facilitate your return to work. [EmphaSIS added] Ms. SmIth testIfied that she dId not receIve thIS letter 32 Ms. SmIth rema10ed under her physIcian's care from Apnl13th to September 1993, and returned to work the first week in September Dur10g that tIme, she attended regularly at her family physician's for counsellmg and had no contact whatsoever with Mr Melville. Her famIly physIcIan provIded a certIficate m early August statmg that, 10 hIS opmion, Ms. SmIth would not be ready to return to work for another two or three weeks. Meeting # 11 - September 2, 1993 Requested by Ms. Doherty m response to Ms. SmIth's notIfication she was ready to return to work Attended by Doherty, Cowie, Stockwood, Smith Both Mr Cowie and Mr Stockwood took notes of the meetmg, Mr COWIe's were more detailed than Mr Stockwood' s, but there were no discrepancIes between them. At the outset of the meeting, Ms. SmIth was asked If she had a return-to-work certIficate. She provIded a certIficate of absence due to illness dated August 5, 1993, but stated that her physIcian was not prepared to proVIde a return-to-work certificate until he knew the condItions under wruch she was to return. Ms. SmIth explained at the meeting that her physician's advice was that while he felt she was able to return to work, she was not able to work 10 a SItuation where Mr Melville would be her supervisor; for that reason, she wished to arrange for an accommodatiOn. Ms. Doherty said that she would like to send aJob descriptiOn to Ms. Smith's doctor Ms. SmIth testIfied that she attended at Dr Erhch's office following thIS meeting and obtained a certIficate from him stating that he had reVIewed the Duties and ResponsibilIties of a CorrectiOnal Officer, as presented to hIm, anG mdIcated that Ms. SmIth was able to return to work ImmedIately but noting that it was his feehng that "she should not be under the dIrect supervISIon of the officer aga10st whom she laId a complamt" The phYSICIan's note was submItted m eVIdence At thIS meetmg, Ms. Doherty mdlcated that the I.I.U had not substantIated Ms. SmIth's allegations. Ms. SmIth testIfied that she had not received any word from the I.I U about the outcome ofMr Trivett's mvestIgatiOn nor had she receIved the letter whIch Ms. Doherty had sent on July 13, 1993 Mr Trivett could not confirm that he had spoken WIth Ms SmIth on more 33 than one occaSiOn. At the meetmg Ms. SmIth asked for all reports relatmg to the 10CIdent and was informed by Ms. Doherty, who SaId she had receIved a copy of the report from the Deputy Minister, that the Independent InvestIgatIons Dmt report had been dIrected to the Deputy MmIster, and that Ms. Smith would need to go through the Freedom of InformatiOn If she wIshed to obtam a copy (In fact, the I.I U "Fmal InvestIgation Report" Itself was not directed to anyone m partIcular, but It was noted that copIes were to be sent to the Deputy Mimster and to the Manager of the I.I U Ms. Doherty receIved a memorandum dIrectly from Management Board of Cabmet, Independent InvestIgations Umt (Glenn Tnvett), not from the Deputy Mimster) Mr Stockwood asked why, If Ms. Smith was the compla1Oant, she had not receIved a copy of the I.I U report. Ms. SmIth signed the F 0.1. request at that tIme and gave It to Ms. Doherty Ms. SmIth explained that she was prepared to return to work as soon as her doctor cleared her to do so, but stated that she did not want contact with Mr Melville at any time. (Mr Cowie testified that he was not a proponent of no contact.) She asked Ms. Doherty if she condoned Mr MelVIlle's behaviour and was told that she had had dIscussiOns With Mr MelvIlle on issues not specIfically related to Ms. Smith, and that she was not prepared to dISCUSS the matter any further Ms. SmIth asked what had happened, why there were no find1Ogs, and who had changed his/her story Ms. Doherty told Ms. SmIth she could not guarantee that she could asSIgn her to a pOSItiOn 10 whIch she would have no contact WIth Mr MelvIlle She explamed that at that time the InstItutiOn was down four managers and that Mr MelVIlle mIght be called in on overtIme. At the hear10g she testIfied that "when control calls for a manager to respond, they do not know who will respond, and It IS Important to respond qUIck.ly" She offered the possibIlIty of a secondment to another Jail in the Metropolitan Toronto RegiOn but Ms. SmIth dId not respond favourably to thIS Idea, cIt10g that It would create an 1Oconvenience for both her son and herself. Ms. Doherty made the point that in the investigation carried out by the Internal Investigations Unit, Mr Melville was not found to be in the wrong, and that no charges 34 resulted from that investigation. Ms. Smith responded that she was disturbed that she was being told there was "no evidence" when Mr Melville was not denying anything. Ms. Doherty replied that her letter (the letter of July 13, 1993) indicates "Mr Trivett has told [her], that there is no substantiation" Later in the meeting she stated" Again, he has done nothing contrary to the policy" and made the point that Mr Melville had drunk excessively in the past, and that must be addressed. She went on to say that Mr MelvIlle was "m a programme working on some Issue that he has" Accordmg to Mr Cowie's notes, Ms. SmIth acknowledged that she could not expect to have no contact, and stated that "on a daily basis [she] would hke not to have him directly supervIse [her] She also suggested the dnver/escort as a possibIlIty but that dId not go anywhere. Ms. Smith testified that after considerable diSCUSSiOn It was decided that she should be accommodated and that the accommodatiOn would conSIst of scheduling her on shifts that Mr MelvIlle was not workmg. It was her understand10g that a notIce was to be posted m the Shift IC's office Mr Stockwood's notes reflect that Ms. Doherty had said that Ms. Smith would be on shifts WhICh dId not coincIde with those of Mr Melville whenever possible; that they were to be kept separate whIle working on the same days, that Ms. Smith would be the one to make the schedule change; that if there were any other problems, Ms. Smith could come to speak With her (Ms. Doherty), and, that the shift supervIsor would be made aware of the SItuation and would make the changes. Ms. Doherty testified that she was prepared for Ms. Smith to have minimal contact with Mr Melville and that included Mr Melville not being her direct supervisor Ms. Doherty was asked to explain why 111 her memorandum to Mr Mikel she had not stated that Ms. SmIth and Mr Melville were to be put on OppOSIte shifts She explained that she hoped that by startmg them out on dIfferent ShIftS, they would be, and would remain, on opposite shifts. Accordmg to Mr Cowie's notes, Ms. Doherty told Ms. SmIth that Mr Melville would be mstructed to mImmize contact except when absolutely necessary in the course of hIS supervIsion. Mr MelvIlle testified that he was instructed by Mr Cowie "to mImmIze [hIS] contact WIth Ms 35 SmIth" and to partIcIpate only in conversatiOn whIch was job-related and of a profeSSiOnal nature. He was also advised not to supervIse Ms. SmIth. It was Mr MelVIlle's behefthat he had comphed With these dIrectiOns. Mr Melville testIfied that he dId not beheve that there was a single instance when he had attended the umt in which Ms. SmIth was working and sIgned the log book when she was there. He believed that when Ms. SmIth notIced his name m the log book she had responded pnor to hIS entering the area. He further stated that hIS instructiOns were that he was to have no contact unless It was absolutely necessary, and pomted out that If he were the only OM 14 avaIlable, then he would have to carry out the responsibihty or duty Ms. SmIth testIfied that after her September return to work she was, from time to tIme, remmded of the rumour, by someone speakmg to her or by silence when walkmg mto a room of male correctiOnal officers. She also, on occaSiOn, found herself workmg the same shIfts as Mr Melville. In cross-examination, she testified that thIS did not occur during the first week of her return but that after that week, she could have been on the same shift as Mr Melville as frequently as every other day and was aSSIgned to posts or rehef posts where he was in the pOSItIon of bemg her dIrect supervIsor and If she remamed in those aSSIgnments, she would "run mto hIm" She wrote the follOWing occurrence report to Ms. Doherty on October 3, 1993 Madam, On Friday, October 1, 1993 I was assigned to the "X" shift as a yard officer At 1140 hours I was asSigned to lunch rehefs on the 2B unit. When I arrived on the unit, I noticed a.M. 14 Melville's signature throughout the log book. I asked Mr Champney, who was the 2B officer at the time, if Mr Melville was in fact the 2nd floor supervisor and he stated that he was. I called control to have OM 16 Buhagiar paged. However, it was Mr Melville who responded to the page. When he asked me if he could help, I informed him that it was Mrs. Buhagiar that I needed to speak with. He informed me that she was having lunch and he would notify her Approximately 5 minutes later I spoke with 0 M. 16 Buhagiar and inquired as to whether or not the Shift Supervisor's office had been informed that I was not to be placed in a situation with Mr Melville as my direct supervisor She stated that she had forgot [sic] and that she would try to get me relieved from the 2B unit. I was relieved at 1150 hours and reassigned to 4th floor reliefs. At 1640 hours on that same day, I was again assigned duties I noticed Mr Melville's signature in the log books. I was informed by the 4B office that Mr Melville had stated that he was now in charge of all floors. As there did not appear to be any other a.M. 14s available, I did not waste my time asking for a reassignment. 36 At 1845 I was assigned to the 4B unit. Due to incidents earlier in the day I called the shift I/C's office to inquire as to who the 4th floor supervisor was & was infonned by 0 M. 14 Stewart that both Mr Melville & himself were on duty but were not assigned to any particular floors. I find that the incidents are causing me undue stress. There appears to be a breakdown in communication between upper and middle management. As per our meeting on September 2, 1993, it was both mine and Mr Stockwood's understanding that the Chiefs office would be fully informed of the agreement between you and myself that they were to accommodate me and not have Mr Melville as my direct supervisor Incidents such as the above mentioned, if allowed to persist, will undoubtedly place my health at further risk. I expect that you will take appropriate measures to ensure that these type of incidents do not become a continuing source of stress to myself. I anticipate your reply Sincerely, CO 2, Lynn Smith c.c. D Stockwood Mr MelvIlle testified that as he recalled the mCIdent, Ms. SmIth was relievmg someone over lunch and called Ms. BuhagIar to Dmt 2B (244) and he reahzed that Ms. BuhagIar was busy and called 244 to ask If he could help or if there was somethmg whIch needed to be done He pomted out that when there is a page for a specific number It IS not possible to know who has made the telephone call. Ms. Buhagiar confirmed that she spoke with Ms. SmIth and that the reassIgnment would have been accomplished 10 under ten mmutes. Ms. SmIth accepted Ms. BuhagIar's apology for her memory lapse. Durmg her examll1ation-m-chief, Ms. BuhagIar was asked what her understandll1g of the relationship between Ms. SmIth and Mr MelVIlle pnor to Apnl 1993 She rephed that "they were datll1g" and she drew this conclUSiOn based on several telephone calls made by Ms. SmIth to Mr MelVIlle on an evemng In June 1992 on which they had a date. He, at the tIme, was unavaIlable and Ms. BuhagIar eventually located him and mformed hIm of the telephone calls. Ms. SmIth testIfied that she enquired of three OperatIonal Managers as to their awareness of the accommodatiOn. One rephed that she was aware, without saying how, another rephed that he 37 had heard of It through the grapevme, the thIrd, that he had heard somethmg about It, but when he checked the Shift I/C's office he dId not find any notice No such notice was produced in eVIdence. Ms. Doherty's reply in response to Ms. SmIth's "concerns" was dated October 13, 1993 This memorandum is in response to your occurrence reported dated October 3, 1993 in which you claim you are experiencing stress because you have seen a particular unit manager's signature in a number of unit log books. You will recall meeting with the undersigned on September 2, 1993, to discuss your return to work from an extended period of absence. During that meeting you requested a guarantee you would not have contact with a certain unit manager Although your request was denied, due to the ongoing operation requirements of the institution, we examined options which would have minimized contact. You rejected each of these options. Finally, you were clearly advised there would be ongoing contact ofa professional nature between yourself and the manager If I can be of further assistance in the matter, please feel free to contact me. D Doherty Ms. SmIth stated that Ms. Doherty's memorandum dId not fit with her understandmg of the meeting of September 2, 1993 She agreed that no guarantee was offered but was emphatIC m statmg that she was not told that ongoing contact was to be expected, and had she been, she would not have returned to work. She stated that a number of optiOns was discussed and that she had not rejected each one of them, It was SImply that follOWing the dIscussion, she accepted that Ms. Doherty would look at the schedules and would make the changes m her schedule and that of Mr MelVIlle. After receIvmg thIS memorandum she contacted Mr Stockwood and he confirmed that hiS understand10g of the substance of the meetmg was that of Ms. SmIth, and did not encompass the VIew expressed by Ms. Doherty In her memorandum. Ms. Doherty testIfied that it would not be unusual for Mr MelVIlle to SIgn the log book m an area to whIch Ms. Smith might be assIgned, for example, he mIght do so If another manager were on relIef In her opmiOn, this was SImply aCCIdental contact. It was not, she belIeved, a "purposeful 38 breachmg of our agreement" It was pomted out to Ms. Doherty durmg her cross-exammatiOn that Ms. SmIth was not complammg about seemg Mr Melville's sIgnature m the log book, but was complammg that she had been placed m an asSIgnment where she had been told that Mr Melville was her Supervisor Ms. Doherty testified that when contact between Ms. Smith and Mr Melville dId occur, there were no negative consequences, as both behaved m a professional manner Accord1Og to Ms. Smith, Mr Stockwood suggested that smce she was not comfortable dealmg With Ms. Doherty m future, that they should try to work wIth Mr DeFranco Accordmg to Ms. Doherty, he had replaced Mr Mikel on September 20, 1993 They met wIth Mr DeFranco on October 26th and November 1st. There was no eVidence with respect to the first meeting, but at the second, Ms. SmIth expressed to rum her concern that the agreement had not been adhered to and that Ms. Doherty was claiming that no such agreement eXIsted in the first place. She could not, Ms. SmIth told him, work under such condItIons. Mr DeFranco responded by discussmg various temporary asSIgnments wIthin the InstItution which would "keep contact between Brian Melville and me at an absolute minimum" Although she advised Mr DeFranco that she would have a problem with the Control Room schedule because of the mght-shift component, It was, Ms. Smith explaIned, finally agreed that she would be placed in the Control Room as a front desk officer Ms. Doherty testified that she made the pomt to Mr DeFranco that there would still be contact since everyone who enters the Institution passes by the Control Room. Mr Stockwood testIfied that approxImately 16 out of 140 Correctional Officers at Metro East are not scheduled to work the night shift and others avoid working mghts by changmg WIth other Correctional Officers. ThIS was a three-month assignment and was confirmed in a memorandum from Mr DeFranco dated November 3, 1993 Please be advised that arrangements have been made for you to be assigned to the "front desk" post. This placement will be for a three month duration. At the end of the temporary assignment, you may if you wish meet with me to review your situation. 39 I trust that this temporary accommodation has addressed your concerns. J DeFranco cc: Superintendent Scheduling Manager Personnel File Ms. SmIth was asked If she had any contact with Mr MelvIlle durmg thIS assIgnment and she commented that he would come into the Control Room and hang around, would phone into the Control Room, a couple of times he asked [her] to check something on the computer when he had access to a computer himself and when it first happened [she] thought it was normal procedure but then [she] slowly realized that this did not happen with other supervisors. {It was her impression that] she did not see other supervisors when she was working. Mr MelvIlle testified that he might have entered the Control Room If he had been working as an OM 16, as in that capacity, he would have the responsibility of supervising all areas of the InstitutIon. It happened that one time, he entered the Control Room and there was another Correctional Officer present along With Ms. Smith, according to normal control-room procedure, and he spoke with the other officer, SIgned the log book and left. He estimated that he might have been there from three to five mmutes. He recalled that on one occaSiOn dunng the mght ShIft, the computer had reJected hIS code and he needed certain mformatiOn, that he called the Control Room and Ms. SmIth answered. He asked for the mformatiOn and she provIded It. Dunng hIS next day shIft, he had hIS code replaced. He explamed that It is not possible to obtam a computer code replacement on the night shift. Ms. SmIth testified that she spoke to Mr DeFranco about her concerns dur10g the imtial three- month assIgnment and Mr Stockwood's notes show that a meetmg was held on November 12, 1993, and was attended by Ms. Smith, Mr Stockwood, Mr DeFranco and Mr Mitchell. All medIcal certIficates at that time were dIrected to Mr Mitchell and Ms. SmIth belIeved that he spoke WIth her famIly phYSICIan on at least one occaSiOn. The schedules of Ms. SmIth and Mr MelvIlle were reViewed and Mr DeFranco agreed that there was no need for Mr Melville to 40 contact Ms. SmIth for computer 1OformatiOn, s10ce he had a computer available m hIS office However, Mr DeFranco undertook to speak with Mr Melville but dId not guarantee to Ms. SmIth or Mr Stockwood that there would be no contact. According to Mr Melville he did so, rem10ded hIm to mmImIze contact and stated that this was not to 10terfere WIth hiS dutIes. Dur10g September 1993, Mr Brittam returned from hIS secondment to the Whitby Jail. He testified that he dId not hear rumours pnor to leaving for hIS secondment m Apn11993, but dId so on his return and they were to the effect that "Bnan MelvIlle and Lynn SmIth had been dating and that Bnan MelVIlle was upset about something that occurred between Mike McKInnon and Lynn SmIth 10 Ottawa" He did not recall the source of the informatiOn and testified that people there talk every day and that "It was go1Og around" On January 17, 1994, Ms. SmIth attended the first meetmg to reVIew her temporary asSIgnment. Mr DeFranco's memorandum to Ms. SmIth of the following day summanzes the meeting and the outcome' You attended a meeting with me accompanied by Mr D Stockwood on January 17, 1994 Also present at the meeting was Mr L. Jeffers, Security Manager The purpose of this meeting was to review your temporary assignment as a result of an incident which you are awaitmg documentation as per your F 0.1. Request (which to date you have not received). During the course of the meeting you were informed that your accommodations would be extended until April 30, 1994 I also advised you that I would contact Ms. M. Currie, Freedom of Information in an attempt to bring thiS matter to her attention. Once I have spoken to her I will inform you regarding the outcome of my conversation. As per your schedule, you informed me that you will continue to arrange shift changes which have not been a problem thus far You were advised that should you encounter difficulties arranging these changes Mr D Stevens at your request will intervene. Until them, I will ask that you keep Mr Stevens informed as to your schedule change. J DeFranco JDF.dlp cc. Ms. D Doherty, Superintendent, M.T.E.D C Mr D Stevens, Shift Scheduling Officer, M.T.E.D C. Mr D Stockwood, Local Representative, M.T.E.D C 41 Ms. SmIth testIfied that m the mterval she encountered some problems wIth Mr Melville. She stated that she explained to Mr DeFranco that Mr Melville "was behavmg towards [her] 10 a, considering the cIrcumstances, in a very friendly manner" She stated that she did not "apprecIate hIm referr10g to [her] by [her] first name 10 a cavaher way, and he seemed smug" Mr Melville explamed that It was not unusual for Managers to refer to or speak to CorrectiOnal Officers by theIr first names and that this was hIS normal practIce A further meeting was held on Apn122, 1994 at Ms. Smith's request. Accordmg to Ms. SmIth she dId not know at the time of the meeting that her assignment to the Control Room would not be contmued. Mr DeFranco's letter of April 25, 1994 sets out the substance of the meeting: At your request a meeting was held with me on the above mentioned date. In attendance were, your representative Mr D Stockwood and at my request Mr A. Mitchell. During the course of the meeting you raised a number of issues regarding Mr Melville, the bottom line being that you still have a number of concerns in regard to being supervised by him. I am aware that your concerns have been ongoing for sometime, and attempts have been made to accommodate you until this matter is brought to a conclusion. However, it is now apparent that your attempts to have this matter concluded to your satisfaction may take longer than you anticipated. With this in mind and in keeping with staffing requirements, I am not in a position to extend your temporary assignment beyond April 30, 1994 I will assure you that I will speak to Mr Melville regarding his addressing you by your first name and as well I can assure you that any dealings you have with Mr Melville in the work place will be on a professional basis. Yours truly, Joe DeFranco Senior Assistant Superintendent Corrections cc. Ms. D Doherty Mr K. Cowie Mr A. Mitchell Mr D Stockwood Ms. Smith expressed concern that her assignment was to be over soon. She had receIved noth1Og pOSitIve through the Freedom of InformatIon, Mr Melville was still addressmg her by her first name. She had, according to Mr Stockwood's note, receIved a letter from Ms. Doherty m whIch Ms. Doherty mdicated that she had some concerns WIth Mr Melville's behaviOur Ms. Smith told those present that she felt that Mr MelVIlle had been rewarded for his conduct by being appomted as an OM 16, and that she wanted some sort of actiOn to be taken agamst hIm. 42 She did not want hIm as her direct SupervIsor For these reasons, Ms. SmIth decIded; a httle more than a year after the start of Phase I of the rumour mcident, that she would file a grievance. Mr DeFranco arranged for an OM 14 to take verbal gnevances from her, the first agamst Mr MelVIlle, the second agamst Ms. Doherty for her failure to deal wIth the mItIal complamt. Mr Stockwood was asked about the attitude of Management toward the Issue of the complamt and he testIfied that "TheIr attitude was still that Bnan Melville had done nothmg wrong, was not found guilty of anythmg, therefore, there was nothing wrong WIth thIS." In spite of the dIscontinuance of Ms. Smith's temporary assignment, she was, nonetheless, assIgned to the Control Room faIrly regularly after April 30, 1994 It was her understandmg that thIS occurred because not all CorrectiOnal Officers were tramed m control room procedure and a regular control room officer was absent, being either sick or on maternity leave. From November 1993 and into the late spring of 1994, Ms. Smith continued to be under the care of her famIly phYSICIan and followed hIS medication regIme. She spoke with hIm when she learned that her temporary assignment was to come to an end and she testIfied that "he knew I was petrIfied" and was still experiencmg sleep problems. His response was to advise that she not be assIgned to a night shift, and he sent a note to the Superintendent to this effect, gIving reasons. As a result of this, she was assigned to "rotate through the "X" and "Y" ShIftS (0900 - 2130 hrs & 0645 - 1915 hrs), as a General Duty Officer" This was conveyed to her by telephone and confirmed by memo from A.S Mitchell, Senior ASSIstant Superintendent (ServIces). He mformed her that this accommodatiOn would last for SIX weeks from May 3, 1994 In June 1994, Dr ErlIch who had prevIously referred her for counsellmg whIch she partICIpated m, referred her to Dr Stanley Barron, ChIef of Psychiatry, at the Centennial Hospital Health Centre as he was not satIsfied with the progress which she was makmg. He also proVIded a further medIcal note in response to Mr Mitchell s request, in WhICh he offered the dIagnosIs that she was suffenng from a "Major Depressive EpIsode, secondary to events whIch caused harassment at work" He adVIsed that her medIcatiOn could not be adJusted for ShIft work and that she should not work mghts whIle she was undergomg treatment" A memorandum of June 13, 1994, 43 from Mr MItchell to Ms. SmIth mdIcated approval of extensiOn of her modified schedule "up to a maxImum of an addItional six (6) weeks" Ms. SmIth saw Dr Barron on June 6, ] 994 Anhat time she was expenencmg anXIety attacks, depreSSiOn, sleep problems, vomltmg and weIght loss. She contmued to work at the InstitutlOn but found It necessary to book off SIck on several occaSiOns. The last day she went mto work was June 22, 1994, but she dId not start her ShIft. She testified that, she went in, assummg that she would be at the Front Desk but went to the Shift SupervIsor's office where she notIced Mr Melville. She felt "an overwhelmmg need to get out of there - the sense you cannot bear to be around anyone and [she] felt she was losmg all sense of control" At that po1Ot, she stated, she went to the Nursmg Station and, as she put it, "baSIcally fell to pIeces" She stayed at the Nursing Station for some penod, she could not recall how long, then gathered her belongmgs, left the InstitutiOn and went home. The evidence did not mdIcate clearly whether she drove home, and if so, did she do so on her own. She spoke With Dr ErlIch, and was gIven a referral to the CnSIS Unit at the Centennial Health Centre where she attended the following day and met with the duty psychiatnst. She contmued to see Dr Barron and partiCIpated in mdividual outpatient counsellmg and outpatient group therapy Ms. Smith contmued as a patient m the mtensIve programme until March 1995 and contmued seeing Dr Barron until June 1995 Following that, she received medIcal attention and adVIce from her family phYSIcian. Ms. SmIth received a letter from the Workers' Compensation Board denying her claim whIch was made on the grounds of stress caused by, according to J.R. Duncan, "unresolved harassment by management" The Board determmed after a reVIew of the claIm and medIcal report, that "the stress and anxIety depreSSiOn whIch [she was] expenencmg [were] caused by an employment situation" The claim was demed on the grounds that "There is no sudden, shockmg or life threatening mcident to be conSIdered for entitlement under [its] current pohcy Ms. Smith began receIving L TIP effective December 18, 1994 Her notIce from the msurance prOVIder suggested that she mIght contact Employee Counselling ServIces for assistance With respect to her return to work. 44 Ms. Smith was asked If she felt that as of December 1995 she was able to return to work at Metro East. She stated that she was not, and offered the follow1Og explanatiOn. I feel that despite all the counselling I have recetved, any further progress I may make has been stalled, and, for the time being, I am as well as I am going to get until this matter IS dealt With. She indIcated that she dId not feel that she could return to work if Mr MelvIlle were there but that if he were not, she "could slowly start working [her] way back" She testIfied that she would find working at another Centre stressful, given that she had observed that people wonder what you did to "get this wonderful favour" and "you are Immediately black-balled" It would, she stated be eaSIer for her "to make a connectiOn between thIS compla1Ot and any repnsals [she] may have and that would be very difficult to do at another 1Ostitution" She dId not belIeve It would be appropnate for her to be required to change ll1stitutions Sll1ce she had "done nothing wrong and would like to get [her] life back to the point where It was, before all this happened" Medical Evidence Respecting Ms. Smith Ms. Smith's FamIly Physician, Barry EhrlIch, MD., CCF (C), has been her primary care phYSICIan throughout her hfe. He was not called due to unavailability but the parties agreed to accept hIS certificates and hIS report of June 13, 1996, whIch was dIrected to Umon Counsel. The Panel accepts that his perceptIon of the causalll1cIdents is based solely on the perception of Ms. Smith, rus patient. Paul Humphnes MD IS the Semor MedIcal Consultant for the Mimstry of the SolICItor General and CorrectiOnal Services. He has been a Senior Medical Consultant since 1976 and prior to that spent approximately eight years with the AddictiOn Research Foundation. He testified for the Employer and, with respect to Ms. SmIth, provided eVIdence regardmg thyrOId condItIons, depreSSiOn and the relationsrup between the two condItiOns. Stanley Barron, MD FRCP (C) has been ChIef of PsychIatry at the Centenmal Health Centre for twenty years. He was made a Fellow of the American PsychIatric ASSOCIatiOn m 1985 He and his staff worked WIth Ms. SmIth. Dr Barron testIfied for the Umon respectmg the dIagnOSIS and treatment of Ms. Smith from a psychologICal perspective. The followmg are excerpts from Dr ErlIch's report: 45 [Ms. Smith] attended me on April 19th, 1993, very distressed. On April3rd, 1993 she got a call at 2.30 a.m. from her supervisor who woke her up and wanted her to come out for coffee, and then made accusations against her and another co-worker who was married, and accused them of having an affair From that time, she stated that she had numerous calls at night, and she was under the impression that the supervisor was drunk at the time. She was too upset to go to work the next morning. When she did go back to work she stated that word got around the jail so she went to the Superintendent. She has been unable to sleep properly since that time. Rumour had it that she had been raped. She went to the supervisor/superintendent ofthe jail and complained. She was then seen on April 30th, and remained very distressed and agitated. She was restless and still unable to sleep She was seeing a counsellor at the hospital, but.it was obvious by this time that she was in a major depressive episode She was seen by me altogether a total of forty two (42) times since the incident. In addition, she was referred to Dr S. Barron, Chief of Psychiatry at Scarborough Centenary Health Centre. He saw her on June 6, 1994 and intermittently since that time. In some ways, she has come from being an energetic, cheerful, extroverted social person, to being a very withdrawn loner, Essentially she has the symptoms of fibromyalgia, which is not uncommon with ongoing depression. She has lost a lot of weight, and part of the problem was that she was as well hyperthyroid, that is she has an overactivity of the thyroid gland. Hyperthyroidism is often triggered by stress, and she is attending an endocrinologist for this, Dr James Arnett. She has had to take medication and radioactive iodine treatment for her thyroid problem. This is probably related to the harassment suit. Ms. SmIth was diagnosed and treated m the fall of 1991 for a thyroid problem and returned to work following thIS in December 1991 At that point, she spent approxImately two months on medication. She had her thyrOId regularly monitored through blood tests from the beg1On1Og of 1992 to the fall of 1995 at which time she was diagnosed With hyperthyroidism. Ms. SmIth testIfied that she IS not the only person m her famIly to have thIS conditiOn. Dr HumphrIes explamed that hyperthyrOIdIsm IS a treatable health condItIon whIch shares some of the same symptoms as depreSSiOn. He also explamed that if one suffers at the same time from a metabolIc problem, such as hyperthyroidIsm, and from a psychologIcal illness and there IS a lInk, then one stabIhzes the metabolIc process and works with the psychologIcal symptoms. If 46 both the hyperthyrOIdIsm and the depreSSIOn are bemg treated properly, they would have no impact on each other; that is, they can operate 10dependently of each other Stress could affect the thyroid and conversely, the thyroid could add to stress. He stated that he would not suggest to the Board that hyperthyrOIdism leads to depressiOn but it does lead to mcreased nervousness and wherever that may tend to lead" Dr Barron explamed that the problem of patients expenencmg sexual harassment was one he had met and treated qUite frequently m his practice He explained that Ms. Smith had told hIm that the SItuatiOn had been developing for some tIme and she related It to her bemg sexually harassed 10 the workplace with ImtIal epIsodes occUITlng 10 the spnng of 1993 She saId that she had been off work for some months m mId-1993 and returned 10 September 1993 There were, she told hIm, problems with a male supervisor at her workplace and that she was stIll brought mto contact wIth him despite an earlier arrangement to keep them apart. She explaIned her symptoms to him and told hIm that she found it dIfficult to function and work satIsfactonly and felt she was buckling under the pressure. Dr Barron gathered a more detaIled medIcal hIStOry from Ms. Smith, and his diagnosis of her expenencmg a maJor depression comcIded with that of her famIly physIcian. It was Dr Barron's opinion that the major Issue for Ms. SmIth was "the harassment issue at work" At the time he saw her he encouraged her to remam at work, and continue the regIme of medication prescribed by her physiCIan and to contmue with the outpatIent-counsellmg programme that she was mvolved 1o. At one pomt, he and Ms. SmIth's counsellor on reviewmg her progress, deCIded that she was not progressmg well. In consequence, they referred her to a more mtensive outpatIent programme whIch she could begm followmg a waItmg penod of SIX weeks. He testIfied that she was continuing her counsellmg and her medIcation and waIting for the intenSIve programme to begm when she came m on an emergency basis on June 24, 1994 At that time she was seen by the psychIatnc CriSIS nurse and the duty psychIatnst and was upgraded to urgent. Dr Barron supported her deciSiOn to stop workmg at that tIme. In January 1995, she had an epIsode that was severe enough for her to again come in on an emergency baSIS and at that tIme those treating her were of two opmions as to the cause of her symptoms - eIther medicatIon or emotIonal Jpset. Ms. SmIth contmued m 47 10tensIve outpatIent treatment for several months, overseen and partICIpated 10 by Dr Barron for several months. He testIfied that durmg that time she expressed her anger over the work-related situation and the fact that she felt the harasser should be disciplined. She was aggneved and felt that she had not receIved JustIce She wanted some acknowledgement that she had been Injured 111 the sItuation. In their dIScuSSIons, Dr Barron testIfied, she and he came to the conclUSiOn that she had clear VIews on certain thmgs such as fairness. In cross-exammation, Dr Barron acknowledged that Ms. Smith could have expenenced undiagnosed and untreated depreSSIve symptoms due to other causes pnor to April 1993, but not to the po1Ot that she needed to remam off work. At the same time, he was clear that hers was not a case of metabolIc or biochemical depreSSiOn, nor of paranoIa or pSYChOSIS. He acknowledged that he would be surpnsed If the evidence showed a radIcally dIfferent story from that presented by Ms. SmIth, but explained that he would not be surprised by slight vanatIons as "people perceIve how they perceIve" He stated that Ms. Smith had told him that at one time she had liked Mr MelvIlle but that her relationship With hIm was not a sexual one. Dr Barron was also asked about the nature of the "harassment" which Ms. SmIth was alleged to have expenenced at work. He replied that they were "frequent contacts on the phone, and aSSIgnments" He explamed that the fact a telephone call was made was not in and of itself harassment, and that whether or not an aSSIgnment was, would depend on the SItuatiOn. She had told him that "he was makmg or gIvmg orders for others to make contact and to asSIgn her to duties that were mappropriate and that Mr MelvIlle was makmg life uncomfortable for her" She was also upset that her complaints were not hstened to and that Mr MelVIlle went undIsciplmed, and, mdeed, was even was promoted. Dr Barron recogmzed that a correctiOns mstitutiOn was a dIfficult and stressful work enVIronment but he could not agree that it was in Ms. Smith's long-term mterest not to work in a correctional enVIronment. He stated that she wants to return, that he hoped she would do so, and while he recogmzed that there was no guarantee that she would functIon well, he was of the opmion that she has to make the attempt. 48 Dr Barron explamed the Importance of work as an actIvity related to feelings ofwell-bemg and the absence of work being related to a declme m one's self-esteem. It was the opmion of those working with Ms. SmIth at the Health Centre that she should return to work as soon as possible at the locatiOn at which she had been employed for five years, Metro East. There she had a number of fnends who were supportive, even though she recogmzed that there were indIviduals at that workplace had been reJect10g and non-supportive of her In "her state of vulnerabIlity" he belIeved that she would functiOn better at Metro East where she had supportIve frIends. As well, many of her SOCIal contacts are assocIated with that work location. He explamed that the more deSIrable work sIte for her would depend on the outcome of these proceed1Ogs. He expla10ed that putting her 10 a pOSItion in which she would have contact with her harasser would be like asking her to work WIth someone who had mugged her It would remmd her of the old issues and It would be difficult to work in proximIty to that indiVIdual without experiencing stress. Ina letter dated Apnl 6, 1995 to counsel for the Union, Dr Barron stated "I do not belIeve she is ever going to be able to work again in contact with Mr MelVIlle" GRlEV ANCE OF MICHAEL McKINNON, GSB 2192/93 Mr McKInnon has been employed with the Ministry of the SolIcitor General and CorrectiOnal ServIces smce late 1977 and has always worked at Metro East. His trammg is a combmatiOn of corrections and recreation With special educatiOn m dealing with physically and mentally handIcapped adults. He IS a CorrectIonal Officer 2 (C02) . and durmg rus recent employment served 10 the actmg capacity of an Operational Manager 16 (OM 16) He was mvolved in union actIVItIes from 1980 to 1994 - from 1980 as a unIon steward and from 1990 as vIce-president or actmg preSIdent ofthe local. Mr McKllmon IS of ScottIsh and NatIve ancestry and IS actIve m abong1OalIssues. He has been a member of the OntariO NatIve Employment EqUIty CIrcle s10ce 1990 and at the tIme he testIfied, had been on the executIve board for two years. Mr McKInnon has been 1Ovolved 10 a number of grievances and tribunal compla1Ots, as well as a human nghts compla1Ot. He has been both compla1Oant and adVIsor 49 In the mstant grIevance whIch stems from an mCIdent m the spring of 1993, Mr McKinnon gneves that management, including but not limited to OM 14 Brian Melville, violated including but not limited to Article A.l I and Article. 1.2 of the C6llective Agreement. At the time he filed hIS grievance, he was seekmg the following "settlement" 1) Compensation for economic and non-economic loss 2) No direct contact with Mr Melville until all issues dealing with this matter [are] resolved 3) Full disclosure of any & all reports. At the tIme of the hearmg, he was seeking the followmg remedy' The removal of Mr MelVIlle from hIS position as a manager m the Ontario PublIc ServIce, on the grounds that he has demonstrated uneqwvocally that he IS unfit to hold such a pOSItIon Mr McKmnon had no involvement in Phase I of the mcident other than that hIS name was mentiOned dunng the Telephone ConversatiOn # 1 - Smith/Melville. Mr McKmnon and Mr Melville have known each other since early 1978, shortly after Mr McKInnon's arrival at Metro East. According to Mr McKinnon they had been "team mates in sportmg actIvities, asSOCIates at work and associates outside of work" Mr MelvIlle described their relationship as "fnendly, not close friends or anythmg, some interactIon at functions, hockey tournaments and so forth" They agree that thelf relatiOnshIp turned sour about a year later Mr McKInnon testified that over the years, he had been taunted and provoked by Mr Melville in work-related SOCIal or sport SItuatiOns and he assocIated some of thIS conduct With mtoxIcatIon on the part of Mr Melville. It was Mr McKInnon's view that exceSSIve use of alcohol had also intruded on Mr Melville's conduct in the work place. Mr Melville acknowledged m rus testImony that he had abused alcohol over the years, but that following the mCIdent m April 1993, he attended for assistance WIth this abuse and at the tIme oftestIfy1Og had hiS alcohol consumptiOn under control. Mr McKInnon also referred to Mr Melville's being 50 unwllhng to share a nght-of-way at work, forcing hIm to "go around hIm" and to Mr MelVIlle's practIce of coming into a room and saymg "hello to everyone but me" He charactenzed him as "a large individual with a bullying attitude" Mr McKinnon sees Mr MelVIlle's attitude to him as threatenmg and vindictive Mr MelVille stated that thIS complamt was part ofMr McKInnon's ongo1Og attempt "to get at hIm" He testIfied that he was of the opimon that Mr McKInnon had been a womanizer and CIted some out-of-the-workplace examples none of whIch had resulted 10 a complamt. None of the examples was supported by eVIdence, although Mr Melvllle testified that "Mr McKInnon's off- duty conduct is not rumours, it IS fact and people can be brought down to testIfy" He also acknowledged that he had conveyed to Ms. Doherty thIS impreSSiOn, since the matter came up in conversatIon when he was speakmg With her He pomted out that as a manager, "you dISCUSS, at some pomt or other all employees" Mr Melville explained that he felt "they should know the type of person he [Mr McKmnon] IS" When asked to, Mr Melville named specific employees about whom he had spoken with Ms. Doherty He stated that there was no particular reason for domg so, except that a superintendent should know everythmg there is to know about hIs/her employees and the WDHP is not confined to the workplace. He testified that he had not spoken about too many employees other than Mr McKInnon, "smce not many employees indulge 10 that type of behaviOur" In Mr Melville's VIew, there IS nothmg wrong With passmg on personal informatIon to Ms. Doherty about Mr McKmnon's personal activities which have nothmg to do WIth the job" He acknowledged that he dId not have first-hand knowledge of these incidents, but dId not see pass10g them on as gossip or rumours If they were m general conversation. Mr McKinnon is offended by slurs on hIS ancestry and he holds Mr Melvllle responsible for having made some of these. Mr McKInnon artIculated his frustratiOn With what he perceIved as Management's unwIllingness to take hIS complamts senously and to respond accord1Ogly He noted that he had complamed on a number of occaSiOns to the Deputy Superintendent, Mr COWIe. Mr COWIe wrote 10 hIS Report dated Apnl 27, 1993, that he "had on several occasiOns counselled Mr MelVIlle regardmg makmg 1OapproprIate or dIsparaging comments about Mr 51 McKinnon both m hIS role as an OPSEU representatIve and a CorrectiOnal Officer" He testified that he dId thIS on more than two occaSiOns. Mr Melville recalled two occaSiOns 111 his testimony and explamed that Mr Cowie seemed to accept his explanation the first time and the second, he "made It quite clear that he dId not want me dIscussing Michael McKInnon or anythmg he was mvolved WIth at the InstItutiOn" At the hearing, Mr Melville testified that he found It hard to believe that Mr McKinnon was of natIve ancestry, commenting that he didn't "know what to beheve after all I have heard from this fellow" When it was put to him m cross-examinatiOn that dunng Mr McKInnon's career he had been called by names such as "chIef, tomahawk, canoe, MacInjun", Mr MelvIlle rephed that he believed that these statements were made as a Joke and each time Mr McKInnon would deny It and would say F -off m a jokmg manner (It was not suggested that these names had been used by Mr MelVIlle, and the Union acknowledged that the references to racial names respecting Mr McKinnon ceased in 1988 ) Mr MelVIlle saw Mr McKinnon as being "completely unco-operatIve with any of the Operational Managers" The testimony of both Mr McKinnon and Mr MelvIlle, left no doubt that a well-known state of mutual hostihty exists between these two men. Ms. Doherty referred to it as "a nvalry" In any event, thIS hostIhty has affected them both, mSIde and outsIde the workplace and contmued to do so at the tIme of the hearing. Mr McKInnon testified that the stress caused by Mr MelvIlle's conduct towards hIm had affected hIS phYSICal well-bemg. Dunng the penod of time pnor to the Apnl1993 inCIdent which IS the subJect of thIS grievance, Mr McKinnon was, as he put It, feeling ostracized and under attack by Management for his mvolvement in a vanety of workplace issues such as dIscnmination and harassment. He had several complamts pending. Comcidentally, he and hIS WIfe, an employee at the 1OstItution whom he described as very supportive through everyth1Og, had also recently experienced severe medIcal problems and losses WhICh they were both still gnevmg. ThIS was exacerbated by Mr McKinnon's view that any allegatiOn of infidehty agamst hIm was an also attack on hIS WIfe. 52 Mr Michael Bunt10g and his wife, and Mr McKmnon and his wIfe are close fnends They have also shared a workplace - Metro East. Mr Buntmg testified With respect to a conversation that he partIcIpated 10 while he was working in the Control Room at his new workplace, the Pembroke JaIl. The subject of the conversatiOn was labour relations at different work SItes and It took place on Apnl 5, 1993 He was speaking with one OM 16 Enc PIcard who had Imtmted the conversatIon. Mr Bunting testIfied that he dId not make notes of thIS conversation, although he did put an asterisk in hiS calendar book so that he would recall the day He did not have that book available at the hearing. His recall of the conversation was clear and uncontradIcted. Mr PIcard, according to Mr Bunt1Og, spoke of being on course with an OperatIOnal Manager from Metro East, one Bnan MelvIlle, who told him in the context of how crazy it must be to work in Toronto, Brian Melville told him that he had a staff member named Mike McKinnon charge him with harassment about being an Indian and the quote was he was "not even a goddam Indian" Mr Melville recalled bemg on this course, although not Mr Picard, specIfically He explained that the larger group was broken mto tables of four or five managers and the dIScussIon assigned was ways to deal With disgruntled or problem employees. Mr Melville testified that the instructor had advised them that there was no problem using names as they were all managers. The participants brought examples from their own institutions to the discussion. According to Mr Melville, he stated that "the worst problem at [their] Institution as far as labour relations goes was a Michael McKinnon" He went on to give a bnef description of some of the thmgs whIch had taken place and stated that he had known him smce 1978 but had only recently become aware of him "possibly be10g natIve" He stated that he further adVIsed those at the table that he found It very difficult to comprehend why an mdivIdual would deny and make jokes about hIS native ancestry in the early years and then all of a sudden, It became extremely 53 important as a result of an 10CIdent that took place at the InstItutiOn. Mr Melville testified that he said at the time that he also had serious doubts as to whether Mr McKinnon was native at all. Mr Bunting explained that he informed Mr Picard that he had been a Union Steward at Metro East and that he expected that occasions would be commg up at WhICh he might be testifymg and that they had better not Journey down that road. In response, Mr Picard backed off and contmued the conversatiOn about dIfferences m the respectIve workplaces. Mr PIcard dId not touch on the subject of the impact ofMr McKInnon's complaints on labour relatiOns at Metro East. Mr Bunting testIfied that he did mform Mr McKInnon about hiS conversatIOn WIth Mr PIcard dunng one of then weekly telephone conversations, a week later In cross-examinatiOn Mr Bunting was asked if he recalled saying to one of the Operational Managers in Admittmg and Discharge that Brian MelvIlle was going to have to watch out for Michael McKinnon. (This was claimed by Mr Melville.) He acknowledged that he made such a statement but stated that he dId not specify Mr McKinnon, rather, he said that Mr Melville was going to have to watch out for staff, (not Mr McKinnon in particular) He was asked why he made such a statement and he explamed that as a Union Steward, he had had a number of staff come to him with complaInts about various things that Mr Melville had done, and that because Mr MelVIlle was stIll a member of the Bargammg Vmt, It would have been uncomfortable working WIth him If grievances were filed agamst rum. However, once he was confirmed as a "Sergeant" (OM 14), and those persons were no longer working as a partner WIth rum, the restra10t was off. On Monday, ApnlS, 1993, Mr McKinnon was assIgned to Unit 4-C He testIfied that one of his colleagues, John Nichols, C02, was do1Og yard detail and dropped by the unit office, and while there said to Mr McKInnon in a "coy and secretIve" manner, "I heard about you" and told him about a rendezvous between him (Michael McKinnon) and Lynn SmIth at the hockey tournament m Ottawa. ThIS was the first time that Mr McKInnon had heard such an allegation. He testIfied that he had not attended the social occasion out of which the mCIdent arose, and he 54 testified emphatIcally that he had no k10d of sexual relatIonshIp whatsoever WIth Ms. Smith durIng the tournament In Ottawa, or at any other time. Accordmg to Mr McKinnon, he saId to Mr Nichols, "This Isn't funny; where did you get this information?"and Mr Nichols replied that he had the 1OformatiOn from his partner, Joan Serella, who indIcated that Bnan MelvIlle was the source of the mformatiOn. According to Mr McKImlon, Mr Nichols asked "Nothing happened ?" and he rephed, "Nuthing happened" Mr McKInnon stated that he found bemg confronted with this allegation upsetting to the pomt of caUSIng hIm to feel physically Ill, He became extremely concerned at the thought of how he could explaIn thIS allegation to his WIfe, partIcularly when she was still convalescmg and gnev1Og. Mr McKinnon, accompanied by Derek Miller, mforrned the ShIft SupervIsor, Rose Buhagiar, OM 16, on Apnl9th, that he had been slandered by an OperatiOnal Manager who contmued to poison his work enVIronment and that he was unable to continue rus duties on the floors. In response, she reassigned him to the Control Module and instructed hIm to reVIew the training manual which she proVIded. Although he did not speCIfy what the rumours were, It was Ms. Buhagiar's observation that he was upset and concerned about them. She testified that she heard the rumours which were circulatmg around that time. Mr McKInnon's reassignment was recorded in the ShIft SupervISors' log book. Mr McKinnon was asked in cross-examinatIon why he felt that he was not able to function in his regular duties at that time. He replied that when [one] is working in maximum security, one has to have all his faculties and focus on maintaining security, looking after oneself and one's partner and facility security Also [one has] to maintain a professional decorum on a variety of people and charges and that [he] had to be sensitive to their needs and [his] focus would not have been beneficial to his partner, or to the inmates in [his] care. [He] was distracted. Later that day, Mr McKInnon telephoned Lynn SmIth's home, IdentIfied hImself and asked to speak WIth Ms. SmIth. He was informed that he was speaking with Ms. Smith's mother and that Ms. SmIth had been trymg to contact hIm. Mr McKinnon testIfied that he assured Ms. SmIth's mother that the allegatiOns were untrue. He did not speak to Ms. Smith at that time. 55 Mr COWIe testIfied that dunng hIS handlIng of thIS matter, he had an ongomg dialogue wIth Ms. Doherty respecting how the complamants were planning to proceed and the essence of the Issues. She testified that the matter first came to her attention through a verbal report from Mr Mikel and later, in writing. At some pomt, she recalled, she asked Mr CowIe to conduct "an mveStIgatlOn, a prehmInary InvestigatiOn, Into the concerns to determIne if there was anythmg as Employer, we could do ImmedIately" Meeting # 1 - Monday, AprilS, 1993 -1400 hours Requested by Pat GIllon behalf of Bnan MelvIlle to report and dISCUSS an alleged occurrence of April 2nd involvmg Ms. SmIth. Attended by Mr COWIe and Mr Mikel, Mr MelvIlle and Ms. GIll Meeting # 2 - April 6, 1400 hours Requested by Don Stockwood on behalf of Michael McKmnon Attended by Mr Cowie and Mr Mikel, Mr Stockwood, Mr McKinnon and Ms. SmIth. A meeting mvolving only Mr COWIe and Mr Stockwood took place Immediately after the larger meeting. Mr McKinnon contacted Don Stockwood, the ChiefUmon Steward and asked hIm to attend a meetmg WIth him and Mr COWIe. They dId not discuss details during thIS telephone conversation. When he was speaking with Mr Stockwood prior to the meeting, Ms. Smith amved and indicated that she wished to be mcluded in thIS meeting and the mcident was briefly discussed. Mr COWIe was assured of Ms. SmIth's Wish to be present. Mr McKinnon testIfied that he stated at thIS meetmg that Mr MelvIlle was pOlsomng hIS work environment, was harassmg him dIrectly and 10dIrectly through others, m partIcular Ms. Smith, and that there was an allegatiOn by Mr MelvIlle that he had been sleepmg WIth Ms. Smith. In hIS testimony, Mr McKinnon described his relationship to Ms. Smith as not really that of a friend but more one of aSsocIate and colleague They dId not, he testified, socIahze. Although he could not recall whether or not Mr Melville's "drinkmg" was raIsed at the meetmg, Mr McKmnon perceIved thIS as the ongomg excuse used by both Management and Mr MelvIlle in 56 response to Mr McKinnon's complamts. At thIS pomt, Mr McKInnon had the Impression that no one m Management was willIng to "control" Mr MelvIlle. Mr McKinnon testIfied that he heard the detaIls of an inCIdent whIch took place m the late hours of Apnl2nd and the early hours of April3rd as recounted by Ms. SmIth. Mr McKInnon's VIew ofMr MelvIlle's alleged conduct was that he was "stalking" Ms. SmIth. He defined that as "constant houndmg, constant puttmg yourself upon someone when you know you are not wanted" and he vIewed the phone calls by Mr MelvIlle, as related by Ms. SmIth, as stalking. Accordmg to Mr McKInnon, Mr COWIe mdIcated at the meetmg that he had already spoken WIth Mr Melville and would being so agam, but that It would be up to the Supermtendent to "deal with the Issue", and he would seek clarIfication from her (Ms. Doherty) He did not, Mr McKinnon testified, promIse results by a certain date. Accordmg to Mr Stockwood, Mr Cowie informed them that he would get back to the complamantslUrnon to "let them know If the allegatIons were founded" Mr McKinnon was not asked to file an occurrence or other report with respect to the inCIdent. Mr Cowie testIfied that at the end of thIS meeting he was not clear whether or not Mr McKinnon wanted to file a complaint. Meeting # 3 - Wednesday, April 7, 1100 hours Requested by Mr Cowie Attended by Mr COWIe and Mr Carson The meetmg concerned Mr Carson's handling of the inCIdent on the mornmg of Apn13rd and Mr COWIe's appreciation of the manner m which he had dealt with the inCIdent. Meeting # 4 ~ Wednesday, April 7, 1993 -1350 hours Requested by Mr Stockwood Attended by Mr Cowie and Mr Stockwood Mr Cowie recalled that at thIS meeting he was to learn how the complamants wished to proceed, that is, through the Independent Investigations Umt (formal or informal), another outside mvestIgator, or an mstItutIon-based mvestIgatiOn. The process, as he understood It, was complainant dnven. Both Mr Stockwood and Mr COWIe took notes of this meetmg. Mr 57 Stockwood's notes show that he conveyed to Mr Cowie that Mr McKmnon wanted to have the complaint of Ms. Smith dealt with separately from his to aVOId cloudmg the Issue and that he was asking to have a complete, broadly based investigation carried out, including interviews of all the Metro East staff who attended the Ottawa tournament and the Jackhammer party Mr McKInnon wanted to know the orig1O of Mr MelvIlle's allegatIOn. \ He also wanted to know how long such an mvestIgatIon would take and what had been done thus far to deal WIth Mr Melville. Mr COWIe expressed concern about confidentialIty and the breadth of the mvestIgatiOn Mr McKInnon was requestmg, remark10g that thIS approach could have the OpposIte effect. He also noted that m the meetmg on the prevIOUS day Ms SmIth had mdIcated that the resolutiOn she was seekmg was "for It to stop" He questiOned how this would contribute to the resolutiOn and told Mr Stockwood that putting the Issue on full public view could be counter-productive. Mr Stockwood explained that he and Mr McKmnon also wanted to know how the story was bemg spread, and suggested that speaking to those who were fwmhar WIth it mIght help to contaIn it. Mr COWIe did agree to speak with Mr Melville to see when and from whom he heard this rumour He was not prepared to reveal what steps had been taken with respect to Mr Melville, although he told Mr Stockwood, in confidence, that he had suspended hIm for five days The evidence does not show, however, that he mentioned that It was a suspenSiOn With pay Mr Stockwood acknowledged that he dId not respect tills confidence. Meeting # 5 - April 13, 1993 Mr COWIe and Mr Stockwood spoke bnefly 10 the workplace and Mr COWIe mdicated that he needed to know how the complainants wished to proceed. Mr Stockwood told hIm that he would get back to him later Meeting # 6 - April 14, 1993 Mr Stockwood and Mr COWIe met again and Mr Stockwood informed Mr Cowie that Mr McKInnon had deCIded he would proceed With a formal compla1Ot. Mr Stockwood asked why there was no notIce m the Control Room respectmg Mr Melville's suspenSIon, whIch was the 58 normal procedure to ensure that the mdIvidual under suspensiOn dId not enter the Institution. Mr COWIe declIned to respond to this because of confidentialIty concerns. Mr Stockwood drew to Mr Cowie's attention that a particular casual staff member was making comments. He dId not name that person. Mr Cowie testified that as a result of this meeting, it was his understanding that Mr McKinnon wished to proceed formally *** At some later time, Mr McKInnon was informed that Management would have an mvestIgatIon but that the Supenntendent would be the person to deCIde who would undertake the mvestIgatiOn. It was Important to the Umon, he stated, that the mvestIgatiOn be carrIed out by an mdivIdual from outsIde the InstitutiOn and thiS was necessItated by the lack of trust on the part of the Union. Mr McKinnon wrote to the Workplace DIscrim1Oation and Harassment PreventiOn (WDHP) Co-ordmator, Mr Marcel Donio, on Apn121, 1993, confirmmg a telephone conversatIon of the same date in which he had expressed his frustratIon with the seven-month delay concerning a prior complaint against a manager He mdicated that his attack continues not only on me and my family but on another staff member who is presently off work. Meeting # 7 - April 16, 1993 Mr COWIe testified that he and Mr Stockwood met mformally on Fnday, April 16, 1993 (Mr Stockwood dId not refer to this meeting m hIS testImony) The preCIse purpose of the meeting was not within Mr COWIe's recollectiOn but he testified that he was trymg to clearly Identify how Mr McKinnon and Ms. SmIth wished to proceed and the steps that should be taken to resolve the issue. *** On Apn127, 1993, Mr COWIe wrote a confidential memorandum to Ms. Doherty the subject of whIch was "HARASSMENT COMPLAINT - MS. L. SMITH" Mr McKInnon was referred to m the memorandum and It was noted that he mIght be contemplatmg a complamt under the WDHP and it set out the optiOns of whIch he had been mformed. Ms. Doherty responded in a 59 memorandum of May 3, 1993 entttled "HARASSMENT COMPLAINT - MS L. SMITH" ThIs memorandum referred only to Ms. SmIth. It did not mention Mr McKInnon. Mr Stockwood testified that he was never informed by Mr COWIe of the results of any mvesttgatiOn, nor was he made aware by either Mr COWIe or Ms. Doherty that Mr COWIe had completed an investigatiOn and had drawn conclusions. On May 4, 1993 Ms. Doherty wrote to Mr COWIe m a memorandum entitled "INVESTIGATION RE MR. B. MEL VILLEISMITH INCIDENT - APRIL 2/3 1993" This memorandum (see page 30), dId not mentiOn Mr McKInnon nor dId the reply ofMr COWIe dated May 11, 1993 (see page 31) Mr COWIe dId not mform Mr McKInnon of the conclUSiOns he had reached. Ms. Doherty testIfied that she made no contact with Mr McKinnon, eIther before or after Mr COWIe's report, and when asked if she did not feel under any oblIgation to do so, she replied that she had understood that the I.I.U had communIcated with Mr McKInnon and Ms. Smith. Mr Cowie was asked in cross-examination, what steps he took to prevent the circulatiOn of the Innuendos and allegatiOns respectmg Mr McKinnon and Ms. Smith. He rephed that he had removed Mr MelvIlle from the workplace, told Mr MelvIlle and Mr Carson not to dIScussIon the Issue, ensured that the meetings he held were 10 private, and considered how the issue could be addressed WIthout prohferatmg It. He dId not thmk a genenc memo respectmg the spreadmg of rumours would have been a viable optiOn. On Apn128, 1993, Mr COWIe sent a confidentIal memorandum prepared on Apnl 27th to Ms. Doherty The subject was "MR BRIAN MELVILLE, OM.14" ThIS report focussed on Mr Melville's actiOn vis a VIS Ms. Smith. Mr COWIe dId not prepare a SImIlar report respectmg Mr MelvIlle's actiOns VIS a VIS Mr McKinnon. He expla10ed that he dId not do so based on Mr McKInnon's assertiOn that he would file a formal complaint, and knowing that the formal compla1Ot would result m a formal mvestigation. 60 On Thursday, Apnl29, 1993 Glen Tnvett ofthe Independent InvestigatiOn Dmt spoke to semor management staffm the Supenntendent's office A meetmg wIth hIm IS referred to by Ms. Doherty in a subsequent memorandum On Monday, May 3rd, Mr Stockwood noted that he was mformed by Mr McKInnon and another Correctional Officer that comments regardmg the mCIdent had been made by a thud CorrectiOnal Officer, and that this person had been spoken to He further took note of the fact that Mr McKInnon had mformed hIm that he had presented Mr Mitchell wIth a doctor's letter for a change m ShIft, and that thIS request had been refused. According to Glen Trivett of the Independent InvestigatiOns Unit, he began his investigatiOn by interviewmg Mr McKInnon on May 7, 1993, respecting his complamt alleging harassment by Mr Melville, the Superintendent and another manager A subsequent memorandum ongmatmg with the LLU States that Mr McKinnon filed a formal complaInt on this date. Mr Trivett summarized his handling of the matter as follows. Based on the information provided and in consultation with the unit manager, the I.l.U has determined that his issues do not fall within the grounds of the WDHP policy [Mr McKinnon] has been notified verbally and in writing of this opinion. Indications are that he disagrees with this view and he intends to pursue the matter further A second confidential memorandum dated May 11, 1993, from Mr Cowie to Ms. Doherty does make mention of Mr McKmnon. The memorandum reads as follows. Further to your correspondence of May 3, 1993, and May 4, 1993, on the above captioned topic, please be adVIsed of the following. I have been advised by a representative of the Independent Investigation Unit that: - on May 7, 1993, Mr M. McKinnon, C02, filed a formal complaint, re: this occurrence [the evidence shows that he filed it on April 7, 1993 and was interviewed on May 7, 1993 ] - Ms. L. Smith has been contacted by the I.l.U and will also be proceeding with an informal complaint - After conducting an investigation, the I.I.U will determine if a meeting between the complainants and respondent for purposes of an apology is an appropriate course of action. Please be advised based on your memorandum of May 4, 1993, all internal proceedings have ceased with respect of this matter 61 Mr COWIe testIfied that m his conversatiOn wIth I.I.U staff m Apn11993, he had been told that he should not arrange for an apology opportunity and that all mternal actIon should cease respecting the complamt smce the I.I.U would be handlIng the mvestigatIon from that pomt forward. Meeting # 9 - May 12, 1993 Attended by Vance, Stevens, Stockwood, McKinnon According to the notes of Mr Stockwood taken contemporaneously, the "first meeting was Apnl 20" There was no eVIdence respectmg the substance of that meetmg. Mr Vance asked to know what the allegatiOn was. He was told that Mr McKInnon had presented names and explamed the allegatiOn to the I.I. U because It had taken Mr Vance and Mr Stevens so long to get back to hIm. When asked agam, what the substance of the allegation was, he presented the Managers with seven questiOns to which he wanted answers. He received answers to some, and "no comment" replIes to others. Management indIcated that no steps had been taken smce Apnl 6, 1993, to keep Mr Melville and Mr McKinnon apart. Mr Stockwood testIfied that Management was not prepared to offer any information about the investigatiOn or any conclusiOns wruch had been reached. The tone of the meeting appears to have been adversanal WIth both sides actmg both defensively and offenSIvely *** On May 20, 1993, Mr McKinnon wrote to Ms. Renata Kozarov at the WDHP confirmmg theIr conversatIon of the preVIOUS day, May 19th, agreemg to the transfer of his complamts datmg back to September 17, 1992, respect10g Mr Melville and Ms. Doherty, to the Independent InvestIgatIons Union. This was done to expedite the matter He testIfied, that It was at the suggestiOn of Ms. Kozarov, of the WDHP whIch was suffenng under the burden of a heavy caseload. (There was no eVIdence of the date on WhICh the I.1 U mformed Mr McKInnon that hIS complamt dId not fall wIthm the scope ofWDHP policy, although we can conclude that the notIce came on or after May 7, 1993 ) 62 Meeting # 10, after May 12, 1993 Attended by Doherty, Stockwood, McKInnon The meeting was at the request of Mr McKinnon. Accordmg to Mr McKmnon, the gist of the meetlllg was that he was makmg complamts about Mr MelvIlle and hIS comments, and that Mr Melville had a dnnking problem. Ms. Doherty also made the pOlllt that the incIdent complamed of dId not occur in the workplace. Mr McKinnon testified that he rephed that drinking was not an excuse and that according to the WDHP policy that It did not matter whether or not the inCIdent took place outside the workplace. *** Mr McKinnon testified that, frustrated with the inaction of Management, since his reportmg of the mCIdent on April 6, 1993, he filed a grievance on May 23, 1993 He stated that he was not aware of any actiOn up to the time of the fihng of rus gnevance but testified that subsequent to the filing, Mr Melville was suspended for five days WIth pay which, in the view of Mr McKinnon, was nothing more than a vacation. (In fact Mr MelvIlle received his formal notice of suspenSiOn on April 7, 1993 ) Durmg his testimony, Mr McKInnon alleged that his secondment to an actlllg OM 16 positiOn was terrnmated by Supenntendent de Grandis because he had complained that he was workmg 10 a poisoned work enVIronment and that was caused by Mr Melville Mr McKInnon testified that at the meetmg when mformed of the termination of the secondment, Mr de GrandIS told him that he had done an outstanding Job durmg his secondment. He had also received a letter of appreCiatiOn from Joe DeFranco for hIS contributiOn to the Metro East management team. It was Mr McKInnon's perceptiOn that this secondment was termmated as a result of his activism regardmg raCial and sexual dIscnm1OatiOn. 63 THE EMPLOYER'S RESPONSE TO BRIAN l\IELVILLE'S ACTIONS The eVIdence demonstrated that Mr Melville had a history of regular, heavy bouts of drinkmg resultmg in severl; mtoxIcation, and memory blackouts. He testIfied that he had had two earlIer impaIred charges. The first resulted m a fine and a loss of hcence for three months, the second, a fourteen-day JaIl term whIch he dId not have to serve. Instead, he stayed at home for mne days. His explanation for the lelllency was that both tImes he barely blew over 1.20 (Legal lImIt is 08) Mr MelVIlle acknowledged that he was not a good CorrectiOnal Officer up to two years before becommg a manager However he testified, smce that tIme, he has changed. He was asked about hIS dISCIplinary record and testIfied that he had a three-day suspensiOn m 1979 for "making comments to a couple of officers referred to at the time as scabs", he also had a fifteen day suspenSiOn for losmg a set of keys. Counsel for the Dman questIOned why these were not m his file, and Mr Melville was unable to answer that, as he had assumed that they were there. Meeting # 1 - AprilS, 1993 - 1400 hours Requested by Pat Gill on behalf of Bnan MelVIlle to report and discuss an alleged occurrence of Apnl 2nd/3rd mvolving Ms. SmIth. Attended by Mr COWIe and Mr Mikel, Mr MelvIlle and Ms. GIll Mr COWIe's notes were submItted 111 eVIdence Pnor to the meetmg, Mr Cowie had on several occasiOns counselled Mr MelvIlle regardmg makmg mappropnate or dIsparagmg comments about Mr McKinnon both 10 hIS role as an OPSEU representatIve and a CorrectlOnal Officer Mr MelVIlle testIfied that he beheved he dId not speak to anyone else other than Pat GIll concemmg the "detaIls of the mCldent" pnor to tills meeting, although he acknowledged speakIng with Robert Hill on ApnI3rd/4th. His conversatIOn With Ms. Cerqua dId not mvolve the conversatiOn that he had With Ms. Smith. He emphaSIzed that he had told no one about hIS conversation \vith Ms. Smith nor dId he submIt an account of It m writing. When he testIfied, Mr Melville explained that by the tIme the hearmg began, he was having dIfficulty sortmg out what he recalled from what he had heard dUrIng the subsequent time period. The meetmg whIch took place about 36 hours after the mCIdent, conSIsted of a senes of questIOns posed by Mr COWIe to Mr MelVIlle and the latter's responses. Mr MelvIlle recalled the followll1g' After consummg 2/3 large drinks of rum and coke, he left hIS home with CO 2 Rob Hill who hved III the same general area, as the deSIgnated dnver, to attend a bIrthday party at Jackhammers at Kennedy Road and St Lawrence A venue. On arnvmg, Mr MelVIlle ordered the 64 first of several more rum and cokes. (Rob Hill testified that dunng the evenmg, bemg the deSIgnated dnver had a couple of dnnks, and a chat with Ms. SmIth, whom he observed to have a couple of drinks but who was sober) WhIle there, Mr MelvIlle danced WIth a number of people, includ10g Ms. Smith and played pool with a fnend of CO 2 Doug Rumboldt who was attendmg the party He testIfied that prior to danc10g WIth Ms. Smith, and playing the game of pool, that IS, sometIme between 2300 and 2400 hours, he was standmg by the bar WIth Mr Rumboldt. and Mr Rumboldt saId somethmg like" "Hey, Bnan", Lynn's eyebalhng you" Durmg or followmg the game of pool, durmg whIch, Mr MelvIlle testIfied, he was quite mebnated, he beheves, that Mr Rumboldt made another SImIlar comment and mIght also have saId "Lynn's hangmg around" He made those comments "10 a laughIng manner", accordmg to Mr MelVille, who assumed he was Just Jok1Og around. (Mr Rumboldt confirmed that he made one comment along those hnes early m the evemng when he thought he saw Ms. SmIth starmg at Mr Melville. However, Mr Rumboldt dId not believe that he had made the comments m a jokmg or hghthearted manner, but SImply as a statement of hIs observatiOn. Accordmg to him, Ms. SmIth could have been lookmg past Mr MelvIlle. He was not aware, he testified, that Ms. SmIth and Mr MelvIlle had a "real relatiOnship", but had heard from "one of the guys at work", however, that they had gone out a couple of tImes. Mr Rumboldt testIfied that he dId not hear any rumour respecting Ms. SmIth and Mr McKInnon at the party that evemng.) By the tIme he left WIth Mr Hill, between 0100 to 0200 hours, and after Ms. SmIth's departure, Mr MelVIlle was "extremely mtoxicated", (a state confirmed by Mr Rumboldt who observed Mr Melville staggenng around and not playmg hIS normal, good game of pool.) Mr MelvIlle dId not recall any indICatiOn from Ms. SmIth that she was upset or angry at the party Mr MelvIlle told those present at the meetmg that he and Mr Hill stopped for a shce of pIzza. (Mr Hill testified that thIS was at Mr MelVIlle's request) Durmg thIS time, Mr MelvIlle went to a pay phone and called the InstitutiOn for Ms. Smith's telephone number He had to call twIce because he dId not wnte It down. He thought he spoke to OM 16 Carson. He SaId he then telephoned Ms. SmIth at approxImately 0100 hours (Telephone ConversatIon # 1), (Ms. Smith and Mr Hill would put the call around 0215/0230 hours.) He stated that 65 I guess during this conversation Mike McKinnon's [sic] name came out. Sometime durmg the evening it had been planted In my mind that Lynn had had some dealings with Mike McKinnon either in Ottawa at a hockey tournament or at a function for Mike Bunting. All I clearly remember is that Lynn was mad that I had insinuated this or brought it up He explamed, when asked, that by "dealings" he meant "some sort of relatIOnshIp, and went on to say that he had recently consIdered askmg Ms. Smith out aga10 and "possibly pursumg theIr previOUS relatIOnshIps" and that at the party, Mr Rumboldt had "told [hIm] she was looklllg at hIm agalll" He did not recall further detaIls of the telephone call except hIS ImpressiOn that Ms. SmIth was angry, and he thought that she was angry because of his comments about her and Mr McK1Onon. Mr Melville told the meeting that as far as he recalled, he "dId not make any comment about Mike McKinnon to anyone but Lynn" In his cross-examination, Mr MelvIlle acknowledged that he had said that in his conversation with Ms. Smith, he told her that a mystery person had told him that Ms. Smith and Mr McKinnon had gotten together m Ottawa or somewhere else. (Mr Hill testIfied that Mr Melville was away from the car on the telephone for at least forty-five m111utes and that he, havlllg WaIted that long was "not really angry but a lIttle Impatient" He asked Mr Melville what took so long and was told he dIdn't want to talk about It. The dnve from the PIckering shoppmg plaza took about twenty mlllutes and durmg It, almost nothmg was SaId.) Mr MelvIlle told Mr Cowie that It had been a mIstake to call Ms. Smith. Mr MelvIlle stated at the meeting that when he returned home there were 2 messages waiting for him on hIS answenng machme. One was from Ms. SmIth. She wanted hIm to call. He telephoned her (Telephone ConversatiOn # 2) and the only thmg that he was able to recall about thIS conversatiOn was that he asked if It was bemg taped, and he thought that she replIed that It was not. He dId not explam why he had arrIved at that conclUSIOn. Mr MelVIlle also recounted he awoke that mornmg at approximately 0730 hours, still 111 hIS clothes and feelmg dehydrated. He SaId that during that day, Apnl 3rd, he receIved a telephone 66 call from a female CorrectiOnal Officer fnend, Enza Cerqua, who told hIm that he had "really become belligerent" and that he should watch what he says. She went on to say, accordmg to Mr MelvIlle, that he "was extremely mtoxIcated and actmg lIke a Jerk agam" and that he "would be better off not drinkmg as It changes [his] personahty" He had, according to her, argued about who was to pay the tab Reahz10g that he had had "these blackouts before" Mr Melville decided that he should "make a call or two and see what the damage was" He telephoned Mr Hill who, accordmg to Mr Melville, told hIm the following when he asked what had gone on. they pulled in for a slice of pizza and he told him not to call Lynn, he then said I wouldn't listen to him. Then after he got pizza and I used the phone he asked me what had happened, I said I didn't want to talk about it. but I wouldn't listen to [him] On April3rd, Mr Melville also telephoned a couple of Employee Assistance Plan (EAP) numbers. He saId at the meeting "I realIze now I need help WIth an obvious dnnkmg problem" He estimated that he had drunk a minimum of twenty-six ounces of liquor during the night and stated that when he drank, it was "always at least a 26'er and above", that on average he consumed liquor in thIS quantIty three to four times a month, but that the past month he had done so more frequently Mr COWIe asked Mr MelvIlle if he was domg anythmg about the dnnkmg problem and Mr MelvIlle adVIsed him of the following: Yes - tonight Bob Cather and I are gomg to an AA meeting. - I have the number for the addiction research foundation Oshawa and the Metro Area Addiction referral agency - Also MGS employee counselling branch - I will also be going to my family doctor Ms. GIll mformed Mr COWIe that Mr MelvIlle was trying to regIster m an alcohol treatment programme and Mr Cowie made It clear that Mr MelvIlle should make treatment hIS pnonty He offered hIS aSSIstance and that of Mr Mikel who would be able to prOVIde further referrals. Mr COWIe remmded Mr Melville of his earlier warning concerning comments about Mr McKinnon's native ancestry and drew to hIS attention the WDHP pohcy, providmg hIm with a copy "to read and learn" He mformed hIm the mvestIgatiOn would be contmumg and that he was not to contact any of the persons who may be mvolved. He then suspended hIm from work 67 for five days wIth pay to allow an unimpeded opportunity to reVIew the matter He told hIm he was not permItted 10 the InstitutiOn dunng that time ThIS was a non-dIscIplmary suspensiOn and was the maxImum suspenSiOn under the Public Service Act that Mr COWIe, as a Deputy Supermtendent, was authorized to impose, without a hearing. To hold a hearmg, would require the permIssion of the RegiOnal Manager or the Regional DIrector, and if after the hearing, he were to conclude that the complaints had been substantIated, he could have handed out a repnmand, suspend for up to 20 days WIthout pay, or dismiss. The suspension could have been extended by seeking authority outSIde the Institution. Mr COWIe testIfied that he made it clear what his expectatIons were - that he was not to contact anyone 1Ovolved so he could gather facts unimpeded and that If he were to enter the InstItutIon during his suspensiOn that he, Mr COWIe, would "meet that head on" He stated that he made Mr MelVIlle very aware that his actions on Apnl 2nd/3rd were not acceptable to hIm. Mr COWIe testIfied that at this meeting Mr Melville's deportment spoke volumes - he was humble, and it was clear from his presentation that he was embarrassed and humiliated. He was asked m cross-exammatiOn if that equated With "emotion, regret, or apology" and replIed that he would find the SIgns SImilar *** When he was testify1Og, Mr MelvIlle was asked Ifhe belIeved that there was anyth10g wrong WIth passmg the rumour on to Ms. Smith. He stated "absolutely not, If she were involved, I would think she would defimtely want to know about that. and If It had been earlier and he had not been drunk, [he] still would have advised her of the rumour If [he] had heard It" At the same tIme he acknowledged that a manager has special oblIgatiOns to employees. Mr MelvIlle conceded that it was wrong for hIm to make the call late at mght, and to persist, If indeed he did that. On Apnl 7, 1993, Mr Cowie asked the StaffTra1010g Manager for a pr1Otout ofMr MelvIlle's tra1010g profile 10 order to confirm that Mr MelVille had 10deed receIved the WDHP traimng that he had claimed in the meet10g on April 5th. On this same day, Mr Cowie wrote to Mr Melville 68 confirmmg hIS suspensiOn and informmg him that he would be contacted to arrange a meetmg m five days to review the findings and to determme If any subsequent actiOn would be taken. A copy of thIS was sent to Ms. Doherty, Mr Mikel, Personnel and, the Actmg RegiOnal Manager, Metro RegiOn, Mr D Cooley Ms. Doherty testIfied that she had no concerns wIth respect to Mr COWIe's ordering thIS suspensiOn. There was no evidence that the review mentIOned above took place. It was also on this day, Apnl 7th, accordmg to Mr Trivett's report, that Mr McKmnon "sIgned a formal complaint. .allegmg harassment by the respondent [Mr MelvIlle], the supenntendent [Ms. Doherty] and another manager" A letter dated April 8, 1993, from the AddIction Research Foundation, Intake and Treatment Referral Services, Clinical Research and Treatment Institute, sent to Mr Cather confirmed that Mr Melville had been referred to the Behaviour Change and Relapse PreventIon Clinic "for ongoing treatment" (Emphasis added.) It named hIS worker and stated that hIS next appo1Otment was April 27, 1993 Mr Melville testIfied that during his Initial visit to the ARF he met wIth a woman and the appo1Otment lasted for one and a half to two hours. The meetmg mvolved answenng a number of questIonnaires in order for the ARF to have an Idea of the problem. The second, mvolved a lengthy mtervIew with a counsellor and more questionnaires. He explained that his ARF Counsellor had told him that he fitted the pattern of a "binge drinker" that is, a person who does not drInk too often, but when they do they "become another person" Mr MelVIlle could not recall whether or not there was a third appomtment. He stated that whIle he stIll drank, from these sessions he had "learned not to dnnk to excess to the point it was gomg to change [hIS] personahty" He testIfied that he now drInkS far less than he used to, and at the time of the hearing he averaged "once a month as far as dnnk" ThIS change in his dnnking habIts had taken place pnor to the fihng of Ms. SmIth's gnevance m May 1994 and he put thIS down to hIS awareness that there was a problem, in consequence, he socialized very lIttle during that year 69 He was asked Ifhe had expenenced any dlfficulty WIth alcohol between Apnl3, 1993 and May 17, 1994 and he rephed that he had not. Mr MelvIlle was also asked what constItuted hIS "Saturday-mght dnnkmg now" and he explamed that smce 1993 he may average one drInkmg evening every three months, and during that evemng he would not dnnk to excess, that IS, not to the pomt of losmg control, expenencing blackouts or staggenng. He stated that he had "toned it down" Mr Melville testIfied that durmg Apnl several people at the InstitutiOn approached him and asked him what had taken place and that he had replIed that he had nothmg to say on the matter On Apn128, 1993, Mr COWIe sent a confidentIal memorandum prepared on Apnl27th to Ms. Doherty The subJect was "MR BRIAN MELVILLE, OM.14" This report focussed on Mr MelvIlle's actIOn VIS a VlS Ms. Smith. Mr Cowie dId not prepare a SImilar report respecting Mr McKinnon, based on Mr McKinnon's assertion that he would file a formal complamt, knowing that the formal complaint would result m a formal mvestIgatiOn. In the memorandum Mr Cowie outhned the mcident of Apnl 2/3rd, and set out his mvestIgative process. He explained his actiOn of suspendmg Mr MelvIlle as follows. Finally, due to the potentially serious nature of thiS incident and the fact that: 1 Mr Melville exercises supervisory authority over Ms. Smith, and 2. Claimed to be unable to recall specific details of the incident, I suspended Mr Melville from employment for five (5) days with pay pending the ongoing investigation. Mr COWIe then went on to summanze the facts and made the followmg findings. 1 Mr Melville did telephone Ms. L. Smith on April 2, 1993, and repeatedly asked her to go out with him. She rebuked his advances. 2 Mr Melville should have known that his comments and approaches to Ms. Smith were unwelcome and unwarranted. 3 Mr Melville did make comments of an inappropriate and unprofessional nature to Ms. L. Smith during a phone call on April 2, 1993 4 Mr Melville did make inappropriate comments about Mr M. McKinnon Correctional Officer 2. 70 5 Mr Melville acknowledges that he was extremely intoxicated during the incident in question and further states he has a significant alcohol problem. He claims to have sought counselling for this problem immediately following the events of April 2, 1993 6. Mr Melville occupies a positIon of authonty over the complamants and is In a position which requires him to make ongoing decisions about their job assignment and performance assessment. 7 Mr Melville has received training in the Ministry's Workplace Discrimination and Prevention Policy [sic]. 8. The author has on several occasions counselled Mr Melville regarding making inappropriate or disparaging comments about Mr McKinnon both in his role as an OPSEU representative and a Correctional Officer Mr Cowie drew the following conclusions. 1 Mr Melville displayed extremely poor judgement in phoning Ms. Smith and repeatedly asking her out especially considering his position of Unit Manager in dealing with staff relations issues in the highly sensitized environment which existed at the time of this occurrence. 2. It is clear from this statement of Mr Melville and Ms. Smith that even though she made it clear his approaches and comments were unwelcome, he persisted in making them. 3 Mr Melville by his own admission has an unresolved alcohol problem which has had a significant impact on his ability to perform his Unit Manager functions. Mr Melville testIfied that he had not seen a copy of this report pnor to the arbItration proceedings. In the mam, Mr Melville agreed with the report at the hearing. He testIfied that he could not confirm the detaIls of the conversation WIth Ms. SmIth as he had almost no memory of that. He dIsagreed that their relationshIp could be characterized as a telephone relatiOnshIp He expla10ed that he belIeved that one should take mto account that there was a form of relatiOnsrup pnor to the inCIdent and that theIr conversations had mcluded "everythmg under the sruning sun" , mc1udmg rumours WhICh were go1Og around. Mr Melville acknowledged that "It was extremely poor Judgement callmg at that time of mght" but stated that they had dIscussed matters like that on many previous occasions. Mr MelVIlle dIsagreed with Mr Cowie's statement that he had "on several occaSiOn s counselled [hIm] regardmg making mappropriate or dIsparagmg comments about Mr McKInnon both in hIS role as an OPSEU representative and a Correctional Officer" Mr MelVIlle stated that he only recalled two, at the most, three meetmgs and po1Oted out that a good part of the meetmgs involved hIS explainmg the difficulties that 71 MIchael McKInnon's attItude to Managers was causmg. Mr MelvIlle dIsagreed strongly With Mr Cowie's conclusion that his alcohol problem has had a sIgmficant Impact on his abIlIty to perform his unIt manager functiOns. He did not, he said, come to work drunk, and he suggested that a reVIew of his assessments would show that hIS work as a Dmt Manager was excellent Mr COWIe testIfied that he was concerned partIcularly about the repetitiOn ofMr MelVIlle's request to Ms. SmIth, and It was his opimon, that Mr MelvIlle should have gotten the message that hIS repeated requests were unwelcome. He vIewed both the comment made by Mr MelvIlle "You nommated hIm" and his offer of arranging a lIeu day, as mappropnate. However, Mr CowIe testified that Mr MelvIlle had not arranged a day off, but rather offered to telephone to see about a day off. He stated that at the Institution at that time it was not unusual for one employee to call the InstitutiOn on behalf of another to request a day off in case of illness or an emergency He explained further in some cases supervisors and employees were involved in relatlOnsillps and It would not be unexpected in those SItuatiOns for a supervisor to telephone for the employee in the relatiOnshIp, however, he acknowledged that he would not have expected it in tills situation. Mr Cowie agreed m cross-exammatIon that he could have held a hearmg based on these conclUSiOns and he acknowledged that he could not think of another situation m whIch findmgs had been made against a manager or an employee and 10 whIch he would have not proceeded to the next step of a meeting. He also testIfied that he dId not bring the conclUSiOns to the attentiOn of Mr MelvIlle, and was unaware as to whether Ms. Doherty had done so, although he acknowledged that Mr Melville needed to be told of the conclUSIOns. Mr COWIe recommended the following 1 That Mr Melville be referred to a mandatory treatment program to address his acknowledged alcohol abuse program. 2. That a meeting be scheduled between Ms. Smith and Mr Melville supervised by Mr D Mikel, (a) Senior Assistant Superintendent, Corrections, to allow Mr Melville, an [sic] to apologize for his actions on the night of April 2, 1993, and for any embarrassment he may have caused. 72 He went on to say that The complainants have advised the undersIgned that they will be filmg formal complaints under the Ministry's Workplace Discrimination and Harassment Prevention policy Therefore no other action is recommended at this time. Mr COwIe testIfied that gIven the 1OformatIon that he had on Apn128, 1993, (Keepmg in mind that he is not a tramed mvestIgator) he thought that the 10CIdent of April 3, 1993, mIght have met the test set out in "The Right to Freedom from Harassment" of the Workplace DIscnmmatiOn and Harassment Prevention. He dId not mform Ms. SmIth of these conclusions. Mr COWIe, dId, however, offer to dISCUSS the matter WIth Ms. Doherty at her convemence. Ms. Doherty notes that she read thIS April 28th memorandum on May 4th. There IS no evidence that she contacted Mr Cowie to discuss the matter Instead, havmg read his complete and detailed report she sent a letter requestmg a mandatory medical request for Mr MelVIlle, and attached the memorandum ofMr Cowie dated Apn127, 1993, which gave no detaIls, reported only on the response of other staff to Ms. SmIth's call on the morning of Apnl3rd. There was no Information in the attachment which would let Mr Cooley grasp the nature of the inCIdent or the complamt. Ms. Doherty testified that she could have sent both but that she fully mtended to contact Mr Cooley by telephone and discuss the matter She was unable to explain why she dId not send the detaIled memorandum. Mr Cooley telephoned Ms. Doherty and, accordmg to her, expressed surprise that thIS had happened, as he had generally only heard favourable reports about Mr MelVille in the past" He mdIcated that If Mr MelvIlle was wIllmg "to do thIS" there was no pomt m ordenng the mandatory medical and she was to go from there. Ms. Doherty testIfied that she never did receive a letter from Mr MelVIlle's phYSIcian, but did receIve a letter "confirmmg that he was attendmg the programme" Ms. Doherty was asked m cross-exammatiOn what she dId about the rumours once she had received Mr COWIe's report and recommendatiOns. She stated that she felt that she had to have more proof of all the detaIls before she could respond appropnately She testified that she herself 73 did not hear a lot of rumours so she was unaware of whether It was true that such rumours were cIrculating. She stated that she dId not doubt Ms. SmIth and Mr McKinnon, It was SImply that she felt she had to have a complete investigation, and pointed out that Mr Tnvett found that "all allegatIOns were unfounded" Ms. Doherty testified that she had "no other confirmatiOn of the rumours other than the complainants' and that she had a contmuing initIative respectmg WDHP and that she dId not feel that any further action was warranted. Meeting # 8 - after May 4, 1993 Meetmg requested by Ms. Doherty Meetmg attended by Ms. Doherty and Mr Melv1l1e. Ms. Doherty had her first meetmg with Mr MelVIlle followmg her receIpt ofMr COWIe's report, and, accordmg to Mr Melville, that gave hIm an OppOrtunIty to explain his previOUS relatIonsrup With Ms. Smith. Accordmg to Mr MelvIlle, he believed that Ms. Doherty accepted his explanation of the lieu day offer as hIS trymg to asSIst Ms. SmIth, he recalled her statmg that while she understood his reasoning, she felt it shouldn't be done. Her response, he stated, was not positIve. He testIfied that he was told that he should awaIt the results of the 1.1.U InVestIgatiOn and meanwhIle, he should not talk to Ms. SmIth, should keep hIS dIstance, and certaInly should not to strike up a conversation of any kind about tills matter until It was dealt with. *** On May 4, 1993, a memorandum was sent from Ms. Doherty to Mr COWIe. The subject was IdentIfied as "INVESTIGATION RE. MR. B. MELVILLE/SMITH INCIDENT - APRIL 2/3,1993" and the part of the memorandum respectmg Mr MelvIlle read as follows. I have read your report and reviewed the findings contained in it. Your report has confirmed that Mr Melville has been forthright in admitting that he has an alcohol problem. He has also offered to participate in treatment. Given the fact that Mr Melville has self-disclosed it is now our responsibility to ensure that Mr Melville does receive the treatment he requires. I will write to the Regional office to seek authority to order Mr Melville to take a mandatory medical. 74 The same day Ms. Doherty wrote to Mr Cooley, the RegiOnal Manager Metro RegiOn respectmg the "MANDA TORY MEDICAL" Please find attached a detailed report completed by Mr Kevin Cowie, Deputy Superintendent, which outlines his investigation to date concerning a harassment complaint from Ms. Smith. Ms. Smith has informed Mr Cowie that she intends to proceed with a formal complaint, therefore our investigation can go no further Mr Melville has self-disclosed a problem with alcohol abuse. In order to assess the problem and ensure that Mr Melville receives the proper treatment, I am requesting your authority to proceed with a mandatory medical. Treatment, in my opinion is necessary to prevent any re-occurrence in the future and to assist Mr Melville in performing his duties as we expect. Ms. Doherty testified that shortly after May 4th she mterviewed Mr MelvIlle in her office for approximately half an hour She testified that she indicated to Mr Melville that a further investigation would occur regarding Ms Smith's allegation of harassment, however, whether or not these allegations were found to be unfounded or valid, [she] had a responsibility to act on Mr Cowie's fmdings and recommendations She testified that she felt as Superintendent that she had to take hold and do the nght thing for both Mr Melville and Ms. Smith without prejudicing the harassment complaint; [she] could not ignore this problem which had been brought to [her] attention and felt she had to do something about it and that she had a standard of behaviour [she] had to enforce with [her] managers and [she] did not feel that it was appropriate for Mr Melville to be contacting a subordinate in the middle of the night and [she] advised him of that. [She] also indicated [[she] was concerned about the indication that he might have a drinking problem and that as his Employer, [she] was obliged to help him or force him to deal with that problem so that this would not negatively Impact on hIS performance or on the InstitutIon. Ms. Doherty testIfied that at that po1Ot she had to refer Mr MelvIlle to a profeSSiOnal organIzatiOn to get an assessment of the problem and an indIcation of what could be done to deal WIth It. (He was already attendmg the ARF ) Mr MelvIlle, she stated, was very apologetIc durmg meetmgs, was qUIte sorry thIS had occurred and verbalIzed hIS wIllingness to do whatever was necessary to prevent any future problems. She testified that he also indIcated that he would 75 co-operate wIth the Employer, would deal with his problems, and would not partIcIpate 10 any SImIlar behaviour m future. Ms. Doherty could not recall If Mr Melville mdIcated whether he had already gone to EAP to get a referral or whether he had not yet done so But she knew that he went to the ARF, as she put it, "the experts" Ms. Doherty construed her talk wIth Mr Melville as "verbal counselling" and she testIfied that she followed it wIth a letter of counsel to him documenting what had been said 10 the meeting. She was not able to locate a copy of the letter It was, she reasoned an appropnate approach m the scheme of progressive discIphne, smce there were no notIces of discipline 10 Mr Melville's file. Ms. Doherty was asked If she consIdered a "letter of counsel" an appropnate response "to a manager who offers a lIeu day m the course of conversation where It is ImplIed he IS seeking sexual contact WIth a subordmate" She responded that the I.I.U did not provide any evidence to substantiate those allegations, but when It was pointed out to her that Mr Melville had admitted as much, she held to the positiOn that the "letter of counsel" was an appropnate response. She testIfied that she had not taken notes of the meet10g nor dId she know whether or not anyth10g had gone 1Oto Mr MelVIlle's file respect10g the meetmg and her concerns. Further, she had not dIrected that Mr Cowie's report of April 28, 1993, be dIrected to Mr Melville's file. In cross-examination, Ms. Doherty was asked what she had done between the 10CIdent and the memoranda of May 3rd and 4th WIth respect to thIS matter She testified that she assIgned Mr COWIe to "do an mterim look mto the concerns" and asked him to contact the I.I.U to see if formal compla1Ots had been laId and to monitor the SItuatIon in the InstitutiOn to determme If there were further concerns. She stated that the inCIdent dId not happen 10 the workplace, although she dId not VIew trns as suggesting that thIS meant that the WDHP pohcy dId not apply to the Apnl 2/3rd mCIdent. She also went on to note that It was "a responsibIlIty for all employees to have a workplace free from dlscnm1OatiOn and harassment", and that she had a responsibIlIty to both the compla1Oant and the respondent to treat them faIrly 76 Ms. Doherty acknowledged in cross-examination that she knew the following. . Mr MelvIlle had made a telephone call . Ms. Melville acknowledged asking Ms. SmIth to come out . Ms. Smith objected to the telephone call and allegations . Ms. SmIth was qUIte upset . Mr McKInnon objected to the allegations . Ms. SmIth was concerned about the rumours . Mr McKInnon was concerned about the rumours. In explaimng her response to thIS situatIOn she explained that the WDHP polIcy stated that she has a responsibility to stop any repeated behaviour; she did not belIeve that any further incident had taken place. She also testified that she dId not know what Mr MelvIlle was responsible for havmg done, untIl she receIved Mr Trivett's report (receIved June 9, 1993) and it would have been unfaIr to take any action until she receIved that informatIon. Ms. Doherty was unable to recall an educational initiative that she undertook in response to thIS particular situation. Mr COWIe partICIpated m aJomt mtervIew ofMr MelvIlle With Glenn Tnvett on May 19, 1993 Meeting # 8 - July 12, 1993 Meetmg requested by Ms. Doherty Meet10g attended by Ms. Doherty and Mr Melville According to Mr MelvIlle, a meetmg took place between hIm and Ms. Doherty at which he was advised that the I.I.U had completed Its investigatiOn and that he had been exonerated. Ms. Doherty had received the I.I.U report on June 9, 1993 Nonetheless, Ms. Doherty, he SaId, wanted to dISCUSS hIS offer to arrange a lIeu day and hIS alcohol problem. Ms. Doherty testified that It was her understandmg that Mr Tnvett dId not substantiate the allegatiOns. She confirmed that she had read the report. Ms. Doherty explamed that she felt whIle Mr Trivett was not substantiatmg the allegatiOns, that he was concerned about Mr MelVIlle's offer to arrange a lIeu date and about hIS dnnking problem. Ms. Doherty testIfied that she had addressed the matter of 77 drmkmg "by havmg him go for assessment and treatment at the Alcohol Research FoundatiOn" and the matter of the heu day by wntmg to hIm and telhng it was not appropnate and must not be repeated. ThIS response was based on a reVIew ofMr MelvIlle's personnel file. The file confirmed that he had had workplace harassment training and Ms. Doherty concluded that It dId not make sense to repeat It. He knew that he should not be domg it, she testIfied, and said that he would not do so m future. If he had had preVIOUS dIsciphnary incIdents in hIS file, she stated, she mIght have had to respond dIfferently, but based on hIS personnel file, thIS was the first instance and for that reason, she beheved that her response was appropnate. Further, accordmg to her, Mr Melville's "attItude was an mdicator that he was aware and qUIte sorry he had behaved 111 such a way" She explamed that she beheved when people take responsibIhty for theIr behaviour, It makes a dIfference 10 terms of theIr future behaviOur He was, she mamta1Oed, bemg responsible for what he did. As for the alcohol problem, she testified that the letter from the AddictiOn Research Foundation confirmed that he was involved in treatment there and she had put hIm on notice m writing that dIsciplinary action would occur If thIS behaviour cont111ued. Mr Cowie dId not read the I.I.U report and only became aware m the late summer that the allegatiOns had not been substantIated. At the meeting, Ms. Doherty provided Mr MelvIlle with the following confidentIal memorandum. She noted the subject as "ALLEGATIONS - MS L SMITH" This correspondence is to formally advise you that the Independent Investigations Unit has completed the investigation into Ms. Smith's allegations. The investigation did not provide any evidence to substantiate the allegations. {Emphasis added] There was, however concern raised over two (2) issues. The first was your offer to arrange a lieu day for Ms. Smith. As a manager, offering to arrange a lieu day for a subordinate as the result of your own behaviour during off hours is not appropriate. Any attempt by a supervisor to gain influence or exercise authority by virtue of his/her position for the personal benefit of another staff member will not be tolerated. [Emphasis added] The second issue arising from this incident is your self-disclosed problem with alcohol. To your credit you have indicated that you are currently attending an alcohol treatment programme through the Addiction Research Foundation. I must advise however that any further behaviour that might bring discredit to yourself or the ministry in which alcohol is determined to have been a contributing factor will result in disciplinary action. 78 In an effort to better monitor this situation and provide additional support if necessary, I am requesting that you provide a written report from your doctor concerning both the assessment of your problem and your progress in treatment. [Emphasis added]. As the employer is requesting this report we will bear the costs. Should you require further clarification regarding the above or if I can be of any assistance to you please do not hesitate to contact me. *** Ms. Doherty testIfied, and the document showed, that she put a thirty-day bnng-forward note on thIS letter so that she would ask him to bring confirmatiOn of his treatment. She stated that she recalled hIm bringing a document m. However, the only document entered 111 eVIdence with respect to Mr Melville's treatment was the letter of Apnl8, 1993, to Mr Cather from the Intake and Treatment Referral Services. There was nothing further to venfy ongomg treatment or attendance at AA, or to state that Mr Melville had been to see hIS family phYSician. These were all things to which he led Mr COWIe to believe he was committed. Dunng cross-exammatiOn Mr COWIe was asked about the procedure when the I.I.U IS involved. He replied that under the WDHP Directive, fairness to the respondent is to be ensured. The respondent has the same right as complainant to have an investIgatiOn. Once the mvestigation IS completed, he explained, assuming that the Deputy Minister has not already Issued some form of discipline, he could then go ahead and do so He acknowledged that he had completed a report pnor to the involvement of the 1.1.U and stated that he viewed that as the "preliminary work" but that he would have been ll1correct to have done so and CIted the remedIes sectIOn of the WDHP DIrectIve Before discipline can be imposed or a remedy provided, management needs to prove on the balance of probabilities that the alleged offender has practised discrimination. He was asked If there was a policy at Metro East during hIS tenure that no dIscIphne would be Imposed when the I.I.U IS ll1volved untIl ItS mvestigatiOn was complete. He rephed that there was not. 79 Ms. Doherty was asked at the end of her exam1OatiOn-m-chIef for her assessment of Mr Melville as a supervIsor, and she stated that she felt "he was excellent" She stated that in performmg her dutIes, she had contact wIth most employees 10 the InstItutiOn on a Monday to Fnday basIs. She reads the log books, meets WIth staff, reads and reports, she noted that Mr MelVIlle's report wntmg was good. She recalled writmg a letter acknowledgmg hIS assIsting an employee in cnsis. She dId not recall any problems With Inmates m his areas of responsibIhty She also noted that he had never come before her on other issues, that there was no disciplme noted m hIS file, and that there were favourable comments from both Mr Mikel and Mr DeFranco, hIS supervIsors. In her opmiOn, he was generally respected and liked by staff at the InstItutIon. Mr Melville saId that he would have no dIfficulty at all working 10 a professional manner m future with Ms. Smith. Medical Testimony Respecting Mr Melville Dr Paul Humphries Dr Humphnes IS the Semor Medical Consultant for the Ministry of the SolICItor General and CorrectiOnal Services. He has been a Senior MedIcal Consultant smce 1976 and pnor to that spent approxImately eIght years WIth the AddIction Research FoundatiOn. Dr Humphries proVIded the Panel with expert evidence in the form of medical 1Oformation on the effects of alcohol, the abUSIve use of alcohol, and its treatment. Dr Humphnes explained that alcohol IS not a stimulant but a depressant which depresses some parts of the control parts of the bra1O, the control mechanisms of the body or inhibItions. A person may have his/her memory affected for the penod of time that intoxIcatiOn IS present. When one reaches a certain po1Ot along the spectrum of intOXIcatIon, memory IS lost and the duratiOn of the intOXIcatiOn WIll determme the length of the memory loss. One of the effects of someone dnnkmg heavIly off and on for a number of years IS that the person may not appear to be 1OtoxIcated but WIll go through penods when he/she WIll not be able to remember These penods are known as blackouts. Generally speaking, a short blackout penod would be of fifteen m10utes duratiOn, whIle an average duratiOn would be from two to three hours. The mdIvidual 80 who suffers a blackout does not have pnor knowledge that the blackout IS gomg to occur nor IS he or she aware of the blackout during its existence It IS only later, for mstance, the next day, that one becomes aware. This minor pathology is dist10gUlshable from the pathological memory loss or memory Impairment which a person with a severe alcohol problem may experience even when not intoxicated. Dr HumphrIes stated that 1OtoxIcation ( 08 is the legal hmIt) IS affected by one's age, SIze, alcohol consumptiOn and nutritIon and that Increased tolerance results m increased damage to the hver and brain and part of that IS memory impaIrment. If a person who has a pattern of dnnkmg to excess With some regularIty reduces the frequency and quantity of alcohol consumptIOn, then It IS possible that person could expenence the same affect as a new drInker who drinks to excess, because the tolerance has dropped off. Dr HumphrIes addressed the treatment of an alcohol problem once the dnnker has recogmzed that a problem eXIsts. He mentioned that treatment may be undertaken with the family phYSICIan, a variety of speCIalIzed clinics, or on one's own. Usually a good program will result in a 25% to 30% cure rate. A person who deCIdes to stop drmking, demonstrates "incredible will power" so that there is a good chance for that person to be successful, although there are no statistIcs for that and one has to ask If that person stopped, whether or not he or she really had a problem. ARGUMENT THE UNION Mr Wnght, Counsel for the Ul1lon, submItted that the case before us, calls on us to deCIde . Whether Mr MelVIlle has ViOlated the CollectIve Agreement respectmg each of the Gnevors, by commItting acts of sexual harassment agamst each of them, . Whether Management, m particular Ms. Doherty, violated ItS oblIgatiOn under the Collective Agreement to proVIde a healthy and safe workplace, free from harassment, for each of the Gnevors and, whether Management and Ms. Doherty in particular, responded appropriately to Mr Melville's conduct and to the complamts of the Gnevors. 81 It IS the Umon's posItiOn that both Mr Melville and Ms. Doherty have viOlated :he CollectIve Agreement. Mr Wnght submitted that the primary remedy which must flow IS that Mr Melville must be removed from hIS pOSItiOn as a manager m the Ontano Public ServIce. The Umon's positiOn IS that Mr MelvIlle has demonstrated unequIvocally that he is unfit to be a manager m the OntarIO Pubhc ServIce and therefore the Employer should dIsmISS hIm m order that these Gnevors and all employees are assured of rights agamst sexual harassment m the workplace. Mr Wnght took as hIS starting pomt the events of ApnI2nd and 3rd, 1993, and put to the Panel that gIven the conSIstency of Ms. SmIth's uncontradIcted testimony, It IS obVIOUS that we must accept her recounting of the events of that mght, as credible The eVIdence demonstrates, accordmg to Mr Wright, that Ms. SmIth in no way suggested to Mr MelVIlle that she was extend10g an invitation to hIm. Her response to rus persistent mvitation which was clearly an attempt to mitIate sexual contact, was a clear "No" from the outset, and any reasonable person would have known that his conduct was unwelcome. That, he submitted, IS sexual harassment. Mr Melville then lashes out at Ms. Smith With Innuendo and rumours of an alleged relatiOnship between her and Mr McKinnon. Any reasonable person would have known the comments were unwelcome and upsettmg, and Mr MelvIlle knew they were. The suggestiOn made by Mr Melville that some mysterious person "planted the idea that Ms. Smith and Mr McKinnon had some sort of sexual relationshIp at the hockey tournament in Ottawa" IS totally mcredible We can clearly conclude that thIS was an act of retalIation, an act to hurt Ms. Smith because she had reJected Mr Melville. The maliCiOusness of the rumour IS heIghtened, Mr Wnght submitted by who Mr Melville chose to be the other party to trus allegation, Mr McKInnon. It IS not by aCCIdent or through innocence that hIS name was chosen. Not a smgle witness suggested a preVIOUS hnk between Mr McKInnon and Ms. SmIth, but we heard eVIdence of the IrratiOnal hatred whIch Mr MelVIlle harbours for Mr McKInnon, who has over the years been a controversIal person at the InstItutiOn because he has been an outspoken advocate for nghts of the Bargaming Umt. Mr Wnght put forward that thiS is not the first tIme that Mr MelvIlle attempted to "get at" Mr McKInnon through malIciOUS rumour mongenng, and recalled 82 the comments made by Mr Melville to Ms. Doherty regardmg Mr McKInnon's supposed behaviOurs, and hIS explanation of hIS conveYll1g the information which was that it was Important for Management to know It IS a deliberate attempt to harm Mr McKInnon's reputatiOn and career and has resulted in mcreased tenSiOn 10 the workplace for Mr McKInnon, and further to harm hIm on a personal level, Sll1ce his WIfe works at the InstitutiOn and she would be bound to hear the rumours. Uttenng these comments even once, constItutes sexual harassment on the part of Mr Melville agamst both Mr McKInnon and Ms. SmIth. The next act of sexual harassment commItted by Mr MelvIlle, accord1Og to Mr Wnght, was hIS offer to get leave from her upcomll1g ShIft for Ms. SmIth whom he reahzes IS both angry and upset. ThIS offer IS an mappropnate attempt on Mr MelvIlle's part to use hIS powers as a manager to do her a favour to prevent the consequences of his prevIous conduct. Mr Wnght acknowledged the fact that Mr Melville while not workll1g at the InstItutIon did not have the power to alter shifts but he submitted that It IS obvious that a manager telephomng in for relief IS in a better positIOn to get that rehefthan is an employee. Mr Wwnght submItted that Mr MelvIlle IS the only credible source of the rumour wIth10 the InstItution. However, even if we do not conclude that Mr Melville brought the rumour mto the InstitutiOn, the evidence is crystal clear that he was the source of the rumour and It IS ills responsibIlity It resulted in both Grievors in Apnl 1993 bemg forced to work in a workplace where they were the subject of unwanted, unwelcome and unacceptable sexual mnuendo At thIS pOll1t, Mr Wnght reVIewed the Jurisprudence respectmg the constituent elements of sexual harassment, and the Employer's responsibIlity respectll1g the commISSIon of sexual harassment by one employee upon another He Cited the followmg cases and hlghhghted the Cited excerpts. Re Canada Post Corporation and Canadian Union of Postal Workers, 1983, 11 L.A.C (3d) 13, (Norman) 83 ThIS case mvolves the phYSICal touchmg of a female employee by a male supervIsor The followmg excerpts estabhsh the context m whIch sexual harassment IS vIewed m the arbltral Junsprudence At page 17 The landmark decision in the area is Re Bell and Korczak (1980),27 L.A.C (2d) 227, 80 C.L.L.C. para 18,006, 1 C.H.R.R. D/155 (Owen Shime sitting as a board of inquiry under the Ontario Human Rights Code. At p. 229 L.A.C., P D/156 C.H.R.R. and following, Mr Shime discusses the meaning of sexual harassment. He says: The evil to be remedied is the utilization of economic power or authority so as to restrict a woman's guaranteed and equal access to the work place, and all of its benefits, free from extraneous pressures having to do with the mere fact that she is a woman. Where a woman's equal access is denied or when terms and conditions differ when compared to male employees, the woman is being discriminated against. The forms of prohibited conduct that, in my view, are discriminatory run the gamut from overt gender-based activity, such as coerced intercourse to unsolicited physical contact to persistent propositions to more subtle conduct such as gender-based insults and taunting, which may reasonable be perceived to create a negative psychological and emotional work environment (Emphasis added) At page 18 Finally, in a policy statement published on February 1, 1983, the Canadian Human Rights Commission put into regulatory form much of what was first said in this country by Mr Shime in Bell. This "Harassment Policy" may be found in 83 C.L.L.R. para. 18,270 It states, among other things: . harassment may be related to any of the discriminatory grounds contained in the Canadian Human Rights Act. Such behaviour may be verbal, physical. deliberate, unsolicited or unwelcome; it may be one incident or a series of incidents. While the following is not an exhaustive list, harassment may include: unnecessary physical contact such as touching, patting, pinching physical assault; any act of harassment committed by an employee or an agent of any employer m the course of the employment shall be considered to be an act committed by that employer; An act of harassment shall not, however, be considered to be an act committed by an employer if it is established that the employer did not consent to the commission of the act and exercised all due diligence to prevent the act from being committed and, subsequently to mitigate or avoid its consequences, Harassment will be considered to have taken place if a reasonable person ought to have known that such behaviour was unwelcome; 84 In investigating and deciding each case, there must be an objective examination of all the circumstances. The employer must answer for its omissions both before and after this date [the date of the incident] Second, there is the duty to objectively investigate and take steps to mitigate or avoid the consequences of the incident of harassment. Dianna Janzen and Tracy Govereau v. Platy Enterprises Ltd., and Platy Enterprises Ltd. Carrying on business under theflrm name and style of Pharos Restaurant and Tommy Grammas and Women's Legal Education and Action Fund (L.E.A.F) (1989) 10 C.H.R.R. D/6205 The Supreme Court of Canada was hearmg an appeal agamst the judgement of the Mamtoba Court of Appeal m the matter mvolvmg the regular physical and sexual touching of two female servers by the male cook employed by the above company ChIef JustIce DIckson, following a reVIew of definitiOns, set out in paragraph 44451 a broad definition of sexual harassment: Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is, as Adjudicator Shime observed in Bell v Ladas, supra, and as has been widely accepted by other adjudicators and academic commentators, an abuse of power When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power Sexual harassment is a demeamng practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By reqmring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being. Linda Dupuis v. Her Majesty in Right of the Province of British Columbia as represented by the Ministry of Forests, Forest Sciences Division (1993) 20 C.H.R.R. D/87 (BntIsh Columbia Council' of Human Rights, Patch) AdjudIcator Patch found that the Complamant established on the balance of probabihtIes that she expenenced sexual harassment by her SuperVIsor whIle m the Mimstry's employ As a result, he found the Mimstry liable. In hIS analYSIS which led up to the above declSlon, he used as the baSIS the defimtIon ofthe Supreme Court of Canada set out above. It was agreed that the sexual conduct in this particular case was not coerced through phYSIcal force or threats of adverse consequences. However, there was a dIspute about whether the sexual conduct was welcome. The AdjudIcator then looked at "Unwelcome Conduct" Human rights legislation does not prohibit social or sexual contact between management and employees. In Bell v Ladas and The Flaming Steer Steakhouse (1980), 1 C.H.R.R. D/155 (Ont. Bd. Inq.), the adjudicator stated at D1156, para. 1390' 85 The prohibition of such conduct is not without its dangers. One must be cautious that the law not inhibit normal social contact between management and employees or normal discussion between management and employees. It is not abnormal, nor should it be prohibited activity for a supervisor to become socially involved with an employee. An invitation to dinner in not an invitation to a complaint. [Emphasis in original.] However, because of the imbalance of power that often exists between managers and their employees, managers must be very careful to ensure that they are not taking advantage of their position of authority to import sexual requirements into the job. In my VIew, the burden rests WIth the manager to be certain that any sexual conduct is welcomed by the employee and continues to be welcome. Re Jane Kotyk and Barbara Allary v. Canadian Employment and Immigration Commission and Jack Chuba (1983) 4 C.H.R.R. DI1416 (Tribtmal deciSiOn under the Canadian Human RIghts Act, Ashley) The AdJudIcator conSIdered whether or not one of the Complamants made it clear to the Respondent that his advances were unwelcome At paragraph 12237 she discussed the specIal standard for managers: Barbara Allary's case against Jack Chuba is less clear In the three incidents to which she referred, her refusal to entertain his advances was sufficient to "turn him off." I have accepted Ms. Allary's version of the facts as against Mr Chuba's, and having done so, I have accepted that she told him directly and clearly that his advances were unwelcome. It is significant that very soon after the July incident occurred Mr Chuba tried again. Ms. A llary , s reactions to these two advances was, rather than to deal with it yet again, to remove herself from situations where Mr Chuba would make sexual advances to her Mr Chuba must have known the ordinary meaning of the worked "no." I disagree with the interpretation of the Administrative Investigation Committee that Mr Chuba might not have realized that her "no" was unequivocal and that he might have felt justified in going back for a "second or even third try" People in Mr Chuba's position - manager of a government office - must realize that there are great risks involved in taking this sort of advantage of their female employees. It is precisely the type of conduct that the Act is meant to prevent. I refer once again to section 2 of the Act which states that persons should be able to make the life for themselves that they wish, "without being hindered in or prevented from doing so by discriminatory practices based on .sex." Based on the above jurIsprudence, Mr Wnght put forward that "No" means "No", and applymg that defimtiOn, the conclUSiOn that Mr MelvIlle IS guilty of sexual harassment of both Gnevors is clear It does not, he maIntained, matter that the conversation took place outSIde the workplace. Mr MelVIlle is stIll her manager and is stIll held up to a specIal standard and ifhe takes the fisk, he must suffer the consequences. The fact that the offendmg comment was only uttered once, does not change the fact that It was sexual harassment. Sexual harassment can be a smgle 86 actIvIty There are two separate thmgs that constitute the sexual harassment m thiS case The first element IS the repeated requests to Ms. Smith to get together that mght despIte her "No" Any reasonable person should know what "no" means. The second IS the uttenng of the Innuendo, the rumour of a relatiOnshIp between the two Grievors. It IS Innuendo that spread though the workplace and detrimentally affected the work envuonment of the Grievors. It was "a demeanmg practice, one that constItutes a profound affront to the dIgnity of the employees forced to endure It" Mr Wnght submitted that from the openmg , the Panel had heard from Mr BenedIct, then Mr Melville and Mr Trivett that "all ofMr Melville's conduct is excused because, according to Mr MelvIlle, allegedly he and Ms. SmIth had a sexual relationship in the past. That is denied by Ms. SmIth, but, even if It were true and based on Mr MelvIlle's verSiOn, WIth no sexual actiVIty for the past seven months and nothmg to suggest that Ms. Smith was interested in a relationship, to telephone at 0230 hours seekmg to get together with Ms. SmIth, to then ignore her refusals and ultimately to offer a favour IS sexual harassment, regardless of whether or not they had a sexual relationshIp m the past. To then go on and spread unwanted sexual innuendo about Ms. SmIth and Mr McKinnon IS sexual harassment regardless of whether he and Ms. Smith had a relatiOnship m the past. We know that the notion that a woman havmg once consented to 1Otercourse has gIven a hcence to a man for future sexual actIVIty IS wrong. Mr MelVille has forcefully claImed that a past sexual relatiOnship had existed and Ms. Smith has adamantly, consistently and WIthout bemg shaken, denied a past relatiOnship With Mr MelvIlle. Even If a defence of a pnor relatiOnshIp were vahd, It IS not made out here. In the conflict between the two, there IS one WItness to all of the incidents who testified, and that is a witness called by the Employer, Robert Hill. Mr Hill's testimony corroborated the verSiOn of the "Barbecue Incident" put forward by Ms. Smith. Other possible WItnesses, the husband at the weddmg reception, Mr Melville's brother at the evemng of dancing, another CorrectiOnal Officer mentiOned by Mr MelvIlle at the barbecue, dId not appear to testIfy Mr MelvIlle's 87 story, Mr Wnght argued, IS not corroborated and straInS credibihty particularly m the case of the "Barbecue InCIdent" Mr Wnght then went on to look at whether or not Management's response was appropnate, or whether Ms. Doherty breached the CollectIve Agreement by not takIng the necessary, appropnate steps to mItigate or aVOId the consequences of the inCIdent of harassment. He diVIded consideratIon of thIS into two branches and asked the Panel to remember that thIS SItuation followed on the heels of the Bell CaIrn mcidents and the complamts whIch arose at Metro East whIch resulted in the Bell CaIrn mqUlry' 1 The response to the allegation of Ms. SmIth respecting the telephone call 2. The non-response to the rumours and Innuendo The Umon acknowledges that Mr Cowie did mvestigate the telephone call and does not take Issue with hIS report and its conclUSiOns, that IS, that Mr Melville engaged in Inappropriate and unprofeSSIonal conduct, that he persIsted in the face of clear indications from Ms. SmIth that his conduct was unwelcome. In spite of these conclUSIOns, no actIon IS taken agaInst Mr Melville He receIves a five-day non-dIsciplinary suspension with pay, and accordIng to Ms. Doherty some counselling, but the letter of counsel does not even say that cont1OuatiOn of the conduct will result m further dIscipline. The only warnlng IS for Mr Melville to be wary If other problems arIse because of hIS abuse of alcohol. Ms. Doherty "hung her hat", accordIng to Mr Wright, on Mr Tnvett's erroneous conclUSiOn that Mr MelvIlle had a certain hcence vis a VIS Ms. Smith because they had a previous sexual relationship accordIng to Mr Melville. If Ms. Doherty hangs her hat on Mr Trivett's wrong conclusion that Mr MelvIlle's behaviOur is excusable, she then, Mr Wright argued, has to be responsible for the conclUSiOn. Mr MelvIlle, Mr Wnght pomted out, except for hIS havmg called too late at mght, belIeves that hIS behaviour was VIndIcated. Accord1Og to Mr Wright, the Gnevors are then required to work m a pOIsoned work enVIronment while Mr Melville goes along unscathed. Then, as a direct result of Management's mappropriate actIon m some cases and faIlure to act 10 others, Ms. SmIth, who returned to work 88 behev10g that she had assurances that she would not work with Mr MelvIlle as her duect Supervisor and that every possible step would be taken, finds that Mr Melville IS her duect Supervisor and when it IS brought to the attentiOn of Ms. Doherty, she does not take action to see that a recurrence does not take place. Indeed she wrItes a "demeanmg memorandum saymg that Ms. SmIth is complainmg about Mr MelvIlle's SIgnature 10 the log book" The Umon recogmzes that Mr DeFranco dId try to deal WIth the situation, and although it was not problem free, he made an honest effort, and Ms. SmIth was able to return to work, m spite of the fact that Mr Melville dId not comply WIth the SpIrit and the letter of the terms of "no contact" Then, Management withdrew ItS protectIon of her placement m the Control Room, WIthout a shred of eVidence to demonstrate that the accommodatiOn caused any hardship whatsoever Her final day of work was the day on which she arnved to find that Mr Melville was scheduled to be the SupervIsor of the area in which she was to work. That, Mr Wnght stated, drove her out the door and, as a result, Ms. Smith IS off work to thIS day The InstitutiOn and Ms. Doherty in partIcular, failed to prOVIde a safe and harassment-free work place and to mItigate the consequences ofMr Melville's conduct. They bear the responsibIlIty for what Ms. Smith and Mr McKinnon have expenenced. Management dId not, Mr Wnght submItted, take the spreading of these persistent and viciOUS rumours senously and dId nothmg to control them. It was hIS opmiOn that thIS lack of motivatiOn to take any steps was caused by the fact that Mr McKmnon was mvolved. In other cases, they had CIrculated memorandums, had mformatiOn read out at muster and put mformatiOn 111 the pay cheques, they also prOVIded traimng. In this case, they SImply let It go on and let a pOIsoned work enVIronment fester to the point that Ms. SmIth IS dnven out of the workplace on medIcal leave, suffenng from stress due to that environment, and Mr McKinnon was unable to remam 10 the workplace because of mcreased anxIety levels. It is amaz1Og, he stated, that Ms. Doherty and Mr COWIe dId not know what to do gIven that they had the expenence of responding to the Bell CaIrn situatIon. There was, he recalled, a vague rumour that Management had put out some sort of memorandum m late 1993 but they could not find It to produce at the hear1Og. In thIS 89 case, MaIlagement faIled utterly, Mr Wnght submItted, m Its obhgatIOn to proVIde an harassment-free work place and to mitigate the consequences of harassment. Mr Wnght argued that the Board shouh:l order Mr MelVIlle dismissed if we determine that that IS the only remedy whIch will work. Transferring rum would not resolve the problem since that would SImply, according to him, transfer the problem. His reasoning for this IS based on Mr MelvIlle's demonstrated mmd set and behaviour both before the Panel and m the InstitutiOn after the compla1Ots were made. According to Mr Wnght, he continued to harass Ms. SmIth by gomg into the Control Room, by calling the Control Room and by calhng Ms. SmIth by her first name. He acted aggressIvely towards Mr McKinnon forc1Og Mr McKinnon to need to step around hIm. He has demonstrated an IrratIonal hatred of Mr McKmnon, and an mabIhty to act as a proper manager to Mr McKmnon. Accord1Og to the Human Rights Code and the Collective Agreement, for a manager to manage properly, he or she must treat every employee equally, even if that person is dIsliked by the manager Mr Melville, Mr Wright submItted, is not capable of that, where Mr McKinnon is concerned. Mr Cowie has tned to counsel Mr Melville in the past, and smce that tIme the latter has spread Innuendos and rumours to undermine Mr McKinnon's reputation and career He has described himself as antI-Mike McKinnon, and he does not feel there is anything wrong WIth that behaviOur With respect to Mr McKInnon he gave no mdIcatIon that hIS attitude or behaviOur has changed towards hIm smce the compla1Ot arose, or through hIS testimony at the hearing. With respect to Ms. SmIth, Mr MelvIlle cont1Oues to maintain that only the tIme of rus call was inappropriate. He falls to see the power relatiOnship mvolved m help10g an employee to get a shift off or why that IS mappropnate. He appears not to understand, 10 spIte oftra101Og prOVIded by the Employer, what constItutes sexual harassment, that perSIstence IS mappropriate m the face of "no" and how raCIal names are problematIC for Mr McKInnon. There IS nothmg, Mr Wnght stated, whIch gives a basis to th10k that further tra1010g would help Mr Wnght went on to draw attentiOn to the fact that Mr MelvIlle has not stopped dnnking and that Dr HumphrIes saId that a person exhibIt10g control problems 10 the past, IS at nsk of losmg 90 control more quickly when dnnkmg less, because hIS or her tolerance IS less. The explanatiOn of mtoxicatiOn does not help, as there was a number of incidents where alcohol was not mvolved. Further, Mr Wnght put forward that there is a medIcal necessIty for Ms. SmIth not to work under Mr MelvIlle, cItmg the opinion and dIagnosis of Dr Barron for whom there was no doubt that the cause of Ms. Smith's medIcal condItIon IS from harassment by Mr MelvIlle. Further, Mr Wnght noted that Dr Humphries was not prepared to contradIct thiS. Dr Barron had emphasized, Mr Wright stated, that Ms. SmIth should not be the one to move SInce the support system wruch she had amongst colleagues at work would be valuable to her on her return to work. Ms. Doherty stated that she could not guarantee no contact between Ms. SmIth and Mr Melville. Mr Wnght urged the Board to find that Ms. Smith, a VIctIm of sexual harassment, IS entItled to a remedy and that the remedy requires that she not work under Mr Melville. For her to move would be to pumsh her, and Mr Melville would be left supervising Mr McKmnon. Mr Wright cited the follOWing Grievance Settlement Board case respecting our jurisdictiOn to order the dIsmissal of Mr Melville Re OPSEU (Howe, Dalton, Loach) and The Crown in Right of Ontario (Ministry of Correctional Services) (1994) GSB 3155/92,643/93,656/93,2168/93, (Dissanayake) These five gnevances were filed by three female employees of the HaIleybury JaIl. As a result of an earher complamt by one of them, and an investIgatiOn, her allegatIons agamst the Superintendent were found to be partIally substantIated and he was transferred m response to those findings. The followmg month, the two other employees laid complamts alleging sexual harassment on the part of the same Superintendent and an OperatiOnal Manager at the Jail. An mdependent mvestIgator concluded that some of the allegations against the OperatIonal Manager were substantIated and these two complainants receIved a letter of apology WIth respect to his harassment. Although the Employer states that thIS Manager was dIscIplIned, it has refused to dIsclose the nature of the dISCIpline. The Union adVIsed the Board that It would be seekmg among other remedIes, a dIrectiOn that the Employer take specific action agamst the Supenntendent and the Operational Manager, namely that they be transferred or dIscharged and the Issue presented to the Board was whether or not the Board had JurIsdIctiOn to make such a remedial order 91 The Board looked at ArtIcles A-I, 27 10 1 and 27 10.2 of the CollectIve Agreement, Sections 18(1) (a) and 19 (1) of the Crown Employees Collective Bargaining Act, and it then considered a number of cases from the pnvate and publIc sectors, notmg that The only decision of the Grievance Settlement Board to deal with this issue appears to be R.e Co.w:tne}', 912/88 (Wilson) There the Board held quite unequivocally that it did possess the authority to dIrect the removal of a harasser from the workplace as a remedy m a sexual harassment grievance. However, in the particular circumstances before It, the Board declined to exercise that authority The Board reviewed the Canada-.&1st and CU.EE awards and stated at p. 82-83 The questionJlLwhat remedies a board..fe.el~are_neces.saJ:}' to put an end to sexual harassmentjs_Jlf~e...thexe.aLis.sue.~JJ1aye no[ t] doubt thatthis board..under-.S.~~Cr..o.wnJm1~...collective Bargaining Act has extensive powers Indeed, the..D.iYisional Court has repeatedly reminded the Grievance5.ettlement Board of the sc.ope.J)fits.remediaLp.~ inlhe areas of job classification and the Beresford typ~The--5allleJs certain ly..true in the .ar.ea of sexual harassment. Of course, for any order made by this board either directly against such a nonbargaining unit employee or indirectly imposed by an order directed to the employer under which that non- bargaining unit employee is effectively order to be transferred, the rules of natural justice must be complied with. At p. 85 the Board gave its reasons for not exercising its extreme remedial powers: Such an order would be [sic] only be justified if there was no hope of remedying the situation without such an order J do not believe that the facts disclose such a situation. The Employer is directed to comply with the Collective Agreement as provided in Article 27 and to take whatever steps area appropriate to maintain a work environment free from sexual harassment. We agree that the only clear principle that emerges out of the arbitral jurisprudence in the private sector is that discipline or punishment of employees is a management function, which is beyond the scope of the jurisdiction of a Boar of arbitration. In the circumstances before them, the Boards concluded that the orders sought were punitive. The difficulty, however, with those awards is that the Boards make general statements which appear to assume that by disciplinary action directed by a Board of arbitration is in every case "punitive" This, in our view, is not necessarily so. In the case at hand, The union is claiming inter.-alia, that by taking inadequate action against the perpetrators, the employer continued to expose the grievors to the poisoned environment. The employer has already decided the appropriate level of discipline required in its judgement. If the Board agrees with the union that the choice made by the employer in that regard constituted a violation of the agreement, it does not make sense to allow the employer to hide behind the mangement function theory It makes no sense to make a general direction to the employer to take whatever action it deems necessary to eradicate the problem, because it already has made that decision and that very action has been found to be in contravention of the collective agreement. In the B.er.ry....c.ase at para 25 (supra), the Divisional Court stated. "The employer alone can create classifications. Yet it has failed to do so and seeks to take advantage of its failure" Here if we conclude that the employer has failed to properly exercise the management function of its 92 disciplinary authority and that it has thereby contravened the collective agreement, the Board has an obligation to remedy that contravention. The only effective way of doing that in these circumstances is by directing the employer to do whatever is required to remedy the grievors. In ~urtne}' (supra) at p. 85, the Board stated that an order for the transfer of a harasser "would be only justified if there was no hope of remedying the situation without such an order" In our view whether a particular remedial order is absolutely necessary to finally and effectively remedy a grievance is directly linked to the question of whether the Board has jurisdiction to grant that order If the grievor can be redressed without such an order, the granting of such an order will not be "necessarily incidental" to the employees' right to grieve and the Board's statutory duty to finally decide grievances, as contemplated by the courts. It would rather be an incursion by the Board into the prohibited zone of management rights. Similarly, if such an order is not absolutely necessary to remedy the grievance, it takes the flavour of punitive action as opposed to remedial action. In other words, it is the necessity of a particular order to remedy a grievance, which makes it a remedial order within the Board's powers rather than an unauthorized exercise of management functions or punitive action. In the case before us, the grievors were subjected to sexual harassment. What does it take to put a stop to that? As already noted, the Board must give specific directions to the employer because it has already exercised its management rights in a manner that contravened the collective agreement (assuming that the Board agrees with the union in that regard). Is it sufficient to simply issue a cease and desist order against a [sic] members of management who have been found to have engaged in sexual harassment of an employee or is it necessary to direct his removal from the grievor's workplace? Again it depends on the degree of confidence or the lack of it gained by the Board on the basis of all the evidence as to whether the harasser will cease his offensive conduct. For example, in Re Courtney the Board had the confidence that the harasser would comply with a direction from the Board, and therefore the Board declined to direct that he be transferred. The same considerations will apply where the direction sought is for the discharge of the harasser Remembering that the mandate of the Board in these grievances is to provide redress to the particular grievors, the appropriateness of such an order will depend on whether the Board is satisfied that nothing short of such drastic action can reasonably be expected to achieve that result. One of the factors that may be pertinent is whether a less drastic order, such as a transfer, would not ensure that the grievors will not be exposed to further harassment by the individuals. Union counsel submitted that discharge would be the only appropriate order, because if the harasser is transferred, the harassment "is going to continue in some other institution within the OPS" We do not agree that that necessarily will be the case. In a given case the Board may well decide, as it did in Re Courtney, that a less drastic remedial order will be sufficient to deter the harasser Besides, while the cleansing of the OPS from harassers may be a very noble objective, this Board does not, in our view, has such a broad mandate in the course of remedying mdividual grievances. To summarize then our decision flowing from all of the foregoing, we find that, if based on all of the evidence the Board concludes that it is absolutely necessary to direct the employer to take specific disciplinary action against a member of management, in order to remedy a grievance, it has the jurisdiction to do so. Because such an order is absolutely necessary, it is remedial in nature, and within the Board's jurisdiction. The fact that such an order may have the incidental result of penalizing the member of management, and of encroaching into areas reserved to the employer as exclusive management rights, does not mean that the Board must decline to exercise its authority to remedy a violation of the collective agreement found to exist. 93 -- Both Ms. SmIth and Mr MelVIlle gave eVIdence respectmg these based on the follow1Og eVIdence. In the hospItal escort mCIdent, Ms. SmIth had valId concerns about escortmg the inmate she was assIgned and made a reasonable request for further 1OformatiOn. She testIfied that Mr Melville was hostIle towards her and she beheved that thIS was because '~he was taking It personally" She told hIm this later and dId not clarify in her eVIdence precisely what she meant by "It" Mr Melville did not explain the reason for hIS brusque manner on this occaSiOn. Mr Melville should have prOVIded the informatIon which was aVailable and have mdIcated that it was not possible for hIm obtain further infonnation. A qUIck revIew of the file and a bnef explanation respectmg the CPIC restrIctiOns mIght have satIsfied Ms. SmIth. It IS not clear from the evidence whether Mr Melville was findmg it dIfficult to handle a sItuation m whIch he had to deal WIth Ms. SmIth, or whether he would have responded In the same fashIon to anyone else who made the same request. The Board finds that there is insufficient evidence to conclude that Mr Melville handled this matter in a brusque manner simply because it was Ms. Smith he was dealing with. On responding to Mr Melville's telephone computer mqUIry to the Control Room, Ms. Smith attributed a motIve to him that the eVIdence does not support. She beheved that he made the telephone call speCIfically to her, or at least 111 the hopes of contacting her, when he telephoned for 1OformatiOn whIch she expected would have been available on the computer 111 the area in which he was workmg. Mr MelvIlle offered a credible explanatiOn, that is, that the computer was, for some reason, reJect10g hIs password and he could not, at that time of the mght get a new one; he had to walt untIl the daytIme. It would have been sensible of hIm to have prefaced his request With thIS explanatiOn. Further, there was no guarantee that Ms. SmIth would answer the telephone. The Board accepts Mr Melville's explanation and finds that his telephone call to the Control Room for specific computer information was not made with the purpose of contacting Ms. Smith. 121 ~ ---~~-~ ~ The other side of the coin is that if the Board is satisfied that other remedial orders can reasonably be expected to provide full redress, the direction of specific discipline takes the flavour of a punitive direction which will be beyond the jurisdiction of the Board. Then it is also an unauthorized usurpation on the part of the Board of the management's exclusive functions. Having regard to the reasons the parties sought a ruling on this issue, the short answer is that the Board has jurisdiction to direct the removal of a harasser through a transfer or discharge, if the Board concludes on the basis of the evidence that the particular order sought is absolutely necessary to finally and effectively remedy these grievances. This case has not been JudIcially reviewed, and Mr Wright submItted that it stands as accepted Grievance Board Jurisprudence. The lack of any apology or anythmg remotely approachmg an apology to eIther of these mdividuals must force us to conclude, that we cannot have any confidence that Mr MelvIlle will abIde by a dIrection of the Board, and cease hIS offenSIve conduct. He simply does not recogmze It, accordmg to Mr Wright. He urged the Board to send a message to Mr Melville and to others, that managers will not be permItted to engage in harassing conduct, deny it and then get away with it. We have, Mr Wnght submItted, an obligation to force this Employer to do what It is unwilling to do, that IS to uphold the Collective Agreement and prOVIde a safe, healthy and harassment free workplace To fulfill this obhgatiOn, it is necessary for us, he maIntained, to order the Employer to termmate Mr Melville. The Union IS also seeking a declaration that Ms. Doherty breached the Collective Agreement and failed to fulfill her obligation and duty to provide a workplace free from harassment; an order to compensate Ms. Smith for all losses she has suffered s10ce Apn11993, that is wages, benefits and out-of-pocket expenses dIrectly related to the mcident and aftermath. Mr Wright asked that we remained seIzed respectmg quantum. The further remedy asked for in the case of Mr McKinnon, IS that his sick bank be reimbursed for any sick tIme used for stress and anxIety smce the date of these events, and that he be placed on paId leave for a penod of one month to allow hIm the tIme to work on reducmg his stress level. The Union further asks for a postmg of the findmgs of the board and the remedIes ordered so that all employees 10 the workplace Will have drawn to their attention the conclusions and findmgs of the Board and WIll bnng the message of the Board home "loud and clear" 94 THE EMPLOYER Jim BenedIct, for the Employer, submItted that Mr McKmnon's gnevance was filed a year before Ms. Smith's, and the only thing the grievances have in common is the telephone conversatiOn and the rumour It is the Employer's posItiOn, accordmg to Mr BenedIct, that the evidence does not estabhsh a violatiOn of ArtIcle Al in any respect, be it general harassment or sexual harassment, and therefore the grievance should be dismIssed. ArtIcle Al There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age marital status, family status, or handicap, as defined in section 9(1) of the Ontario Human Rights Code (OHRC). is found first m the Collective Agreement dated January 1, 1989 to December 31, 1991, and changes to the agreement, unless otherwIse noted were effective June 15, 1990 Mr Benedict mamtained that the date of June 15, 1990, is Important respecting the treatment of evidence and findings that may be made before and after that date. ArtIcle Al.2 There shall be no discrimination or harassment practised by reason of an employee's membership or activity in the Union. appears for the first tIme 10 the Collective Agreement dated January 1, 1992 to December 31, 1993, and changes to the agreement, unless otherwIse noted were effective February 3, 1992. There is noth1Og comparable to this sectiOn of the article m the Human Rights Code Further, words such as "practIce" and actIVIty" are not defined 10 the CollectIve Agreement and to get defimtions of what is meant by "harassment" in the Collective Agreement, one must look elsewhere. The dictiOnary offers "worry" and "trouble by repeated action" Mr Benedict looked to the Gnevance Settlement Board Jurisprudence and CIted the followmg case wherem a defimtion of dIscriminatiOn is cited. Re OPSEU (Dewar) and The Crown in Right o/Ontario (MSG&CS) (1995) GSB 941/94, (Backhouse) At page 8 95 The Union referred to the oft-quoted definition of discrimination in Andrews v Law.socie~of BritislLCo.lumbia, 56 DLR (4th) (SCC) Where it was held at p. 18. discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposel:! upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual s merits and capacIties will rarely be so classed. Mr BenedIct submItted that one of the dIfferences 111 thIS case IS that Mr McKmnon and Mr MelVIlle bear an mtense dIslike for each other There IS no smgle personal charactenstIc whIch IS the focus, but rather a general anImosIty, therefore, this defimtiOn of dIscrimmatiOn would not fit the circumstances of this case. Re OPSEU (Top/in) and The Crown in Right o/Ontario (MCS) (1995) GSB 2690/92 etc. (Waisglass) Mr BenedIct looks to thIS case m whIch a smgle Gnevor filed a number of grievances respectmg what he VIewed as the dIscnminatiOn and harassment practised agamst rum by the Employer based on the fact that he wore a beard at all tImes, in response to medical advIce that he should not shave, because of partIcular medIcal condItion. At page 25 It was noted that To establish a nrima facie cac;e ofharac;sment or discrimination on the bac;is ofa ..I. " course of comments or conduct of a manager which is comprised of actions taken in the legitimate exercise ofhislher managerial responsibilities, the subjective evidence of the grievor feeling vexed or harassed by those actions, by itself, is not sufficient It is necessary also to establish, on aprimafacie base, thatthe alleged course of c.onduc.Lwas in bad faita.orJbr-.anJmproper motive. Mr BenedIct submItted, that based on the above excerpt, all the elements have to be established, not Just a smgle element. ThIS IS the foundatIOn on which the eVIdence should be conSIdered. The eVIdence, Mr Benedict submitted, mdIcates that the relatiOnship between Mr McKmnon and Mr MelvIlle began in 1977, and has detenorated for a number of years. Many of the examples CIted occurred pnor to the appearance of Article A 111 the CollectIve Agreement, and 96 mdlcate nothmg more that a relationshIp gone wrong. The eVidence of the tribunal complamt (Exhibit 8) dated March 7, 1995, was not avaIlable to the Gnevor at the time of the grievance, May 23, 1993, and he argued that the exhibIt Itself and all evidence respectmg it ought to be gIven no weIght. In that hearmg, Mr McK1Onon, he notes, was not one of the complamants, and the "antI- Mike McKinnon" remark was not the wordmg ofMr Melville, but was the wordmg of Counsel, who asked "Do you consIder yourself antI-Mike McKInnon" The Tribunal did not find Mr MelvIlle at fault, and other than the suggestion that Mr Melville does not like Mr McKmnon, the exchange suggests nothmg further, certamly not discnminatiOn or harassment. Reference to thIS declSlon, he submItted, IS slmply opemng old wounds and has no relevance to this grievance or to dIscnminatiOn or harassment. He also asked the Board to gIVe no weIght to the statement of the I.I.U Investigator, Joe DanIels, whose mtervIew notes from July 1994 were submitted m eVIdence by the Umon. It is sImply, he submitted, not relevant. Mr BenedIct submItted as well, that the draft 1.1. U report m the Dailey matter (ExhibIt 4) should also be gIven no weight. It was not, he stated, a report avaIlable to the Gnevor at the time of the gnevance. Rather, he receIved it after July 15, 1995, when he was advised of the outcome by the Investigator, who determmed that the complaint ofMr Dailey, a black CorrectiOnal Officer aga10st Mr McKinnon on the basis of harassment and racism was unfounded. Mr BenedIct then cited the followmg case whIch was referred to in Mr McKinnon's eVIdence and in whIch Mr McKInnon was the Gnevof' Re OPSEU (McKinnon) and The Crown in Right of Ontario (MCS) (1995) GSB 905A192 (Gray) ThIS complamt arose from the observmg by a correctiOnal officer at Metro East of a very personal and unpleasant message dIrected at Mr McKinnon. The message made allegatiOns about his WIfe as well. The Employer attempted to dIscover the perpetrator(s) but was unsuccessful. In the result, the Board decided as follows. We recognize the difficulty that Mr McKinnon or any other victim of thIS sort of anonymous harassment would have in perceiving an investigation which failed to bring his or her harasser to justice to be adequate or reasonable. Considered on an objective basis, however, that aspect of the 97 employer's response was reasonable. While we do not doubt that Mr McKinnon has truthfully described his subjective perception of management's response to his complaint, those perceptions were clouded by his own emotional reaction to the message about his wife, and by his pre-existing beliefs about management's attitude toward him Where his account of his meetings with Ms. Doherty differs from hers we find hers more reliable, particularly since her account is, for the most part, corroborated by Mr Miller's. Accordingly, we are not persuaded that by its words or conduct management sent Mr McKinnon a message that it did not care whether he was being discriminated against on the basis of race or that this sort of anonymous abuse was the word of treatment he should expect ifhe wished to pursue his complaints under the Code. The Panel dIsmIssed the gnevance. Mr BenedIct then considered the eVIdence ofMr Bunting respecting Mr Picard's relat10g of the managers traimng programme which he and Mr Melville attended. Mr BenedIct submitted that It IS the evidence of Mr MelvIlle WhICh should prevaIl here, gIven that Mr PIcard dId not testIfy He noted that Mr MelvIlle did not deny the comments, but that he raIsed the comments respectmg Mr McKinnon 10 the context of learn10g how to deal WIth dIsgruntled employees, and while Mr McKInnon may not like that charactenzatIon of hImself, there was no bad faIth, harassment or dIscnmmatiOn on Mr Melville's part. Mr Benedict then looked at the following case to look at the burden of proof in the matter of dIscnm1OatiOn and at some commentary about dIscnm1OatiOn based on race' Re OPSEU ( MirosoIin) and The Crown in Right of Ontario (MA G) (1995) GSB 2054/90 (Verity) The Grievor a black woman, alleged dlscnm1OatiOn in the workplace at the hands of her Supervisor, based on a number of mCldents and declSlons. According to Mr BenedIct, she had a genume feehng that she was bemg discnminated agamst. In Its deliberatiOns, the Board looked at a number of authontIes. From these authorities, it is generally accepted that the burden of proof m a case of racial discrimination is the civil standard, it is upon the balance of probabilities. The parties agreed that proof in such a case is a three step process summarized as follows in B.asi..J<---CanadianJiJ11iJma1 8ai.lwa)LCnmp.Clfl)t. (1988) 88 CLLC para 17,006 (Canadian Human Rights Tribunal); a complainant must first establish a prima facie case of discrimination, once that is done, the burden shifts to the respondent to provide a reasonable explanation for the otherwise discriminatory behaviour Thereafter, assuming the employer has provided an explanation, the complainant has the eventual burden of showing that the explanation provided was merely a "pretext" and that the true motivation behind the employer's action was in fact discriminatory 98 The grievance was dIsmIssed, and 10 so do1Og, the Board acknowledged that perhaps the Supervisor could have dealt with the Gnevor m a more sympathetIc manner, and that she may even have made some wrong decIsiOns, but that "she was never on the sIde of wrong m that her decisiOns were not made on consIderations of race." ApplY10g thIS to the mstant case, Mr BenedIct submItted, m the conversatiOn at the train10g session, Mr Melville did not raise Mr McKinnon's name because he was a natIve person, or a umon representatIve, but because he was an employee that Mr Melville had some dIfficulty dealing with. It was likewise when Mr COWIe found that he needed to speak with Mr Melville respecting his comments about Mr McKInnon. Although Management may have viewed thIS behaviour as worthy of correction, there IS no eVIdence that it constituted harassment or discnmination. There was eVIdence that rumours are not unusual at Metro East but there is none whatsoever, Mr BenedIct argued, that Mr Melville spread the rumour about Ms. SmIth and Mr McKinnon. He remmded the Board that it IS not easy to find the origmal source of a rumour and that is because people inherently cannot keep a secret and the compulsiOn to tell someone a "juicy story" is often IrresIstible. Further, It IS not uncommon to add to what one hears. In the case at hand, he submItted, the rumour came about in an "almost spontaneous way" On the basis of the evidence, It is anonymous, we do not know who spread it. What we do know, he stated, is that the difficult relationship between Mr Melville and Mr McKinnon was no secret at Metro East, nor was the fact that Mr Melville and Ms. SmIth socialized and dated, or that Ms. Smith went to Ottawa, as dId Mr McKinnon. It was also well known that Ms. SmIth attended the party at Jackhammers and "had been dnnking", and that Mr MelvIlle attended and got drunk. It was not a secret, he mamta10ed that Mr MelvIlle telephoned the InstItutIOn tWIce m the morning for Ms. SmIth's telephone number, or that Ms. Smith "called in SIck for work on Apnl3, 1993 and aga10 to ask for unIon representatiOn. In fact, he noted, Ms. SmIth told Ms. Plover and Mr Hill the whole story after the telephone conversatiOns. The result was that all of these mgredIents were floatmg around, none of them confidential, and gIven the environment at Metro East, It would, Mr BenedIct submItted, not take much for a rumour such as the one at hand to spnng forth 99 spontaneously ThIs he argued, IS a much more plausible explanation than the one whIch says that Mr MelvIlle spread the rumour Mr BenedIct then turned to the gnevances of Ms. SmIth and submitted that, there has been no vIOlatiOn of Article A, based on harassment or dIscnmmation. Exammed obJectIvely, the eVIdence, does not satisfy the accepted defimtion of sexual harassment. The Board's JurIsdiction, he argued IS hmIted to findmg harassment and/or discrimmatIon according to the definitIon set out m the Human Rights Code and not generally WhIle the Umon has put forward several defimtiOns of dIscnmmatiOn and harassment, It IS the one m the Human Rights Code which we must apply It IS set out m the DefimtiOns SectIOn, 10 (1) "harassment" means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. The same wording is mcorporated mto Article 27 10 1 of the Collective Agreement. Mr Benedict also referred to Part I of the Human Rights Code, Freedom from Discrimination, SectIons 5 and 7 5. (1) Employment.- Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap (2) Harassment in employment.- Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethic origin, citizenship, creed, age, record of offences, marital status, family status, or handicap. 7 (2) Harassment because of sex in workplaces.--Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee. (3) Sexual solicitation by a person in position to confer benefit, -- etc. Every person has a right to be free from, (a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or (b) a reprisal or threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a 100 position to confer grant or deny a benefit or advancement to the person. There IS no general harassment and dIscnmmatIOn article m thIS Collective Agreement as IS sometimes found In others. It IS clear that the Collective Agreement IS tIed mto the Human Rights Code and that IS the defimtIOn whIch the Board must apply Once the Board makes a determinatIOn that there has or has not been a VIOlatIOn of Article A, that ends the matter The Board cannot go on and look at the eVIdence to see If there has been some general harassment or discnminatIOn. The defimtIOn of the conduct complamed of is confined to the workplace. Mr BenedIct submitted that a readmg of the cases shows that perSIstency Within the terms of sexual harassment refers to "frequency of contact" and m terms of the conversatIOn which took place the mornmg of Apnl3, 1993, the mere fact that Mr Melville asked Ms. Smith to come over several tImes, IS perSIstency withm the terms of sexual harassment, whIch is generally in two broad categones. coerCIOn and annoyance. Further, there IS a contmuum from mIld to senous harassment, and, he stated, it IS the Employer's pOSItion that in this case, the harassment complained of is in the annoyance category, putting it at the mIld end of the harassment contmuum. Mr BenedIct noted that alcohol played a promment role m the SmIth/Melville relatIOnship of approximately three years. He characterized their relatIOnship as a sexual one, observing that they had VIsited each other's apartments on several occaSIOns, on some, staying overnIght, and followed that up by notmg the discrepancy in the testimony respectmg the sexual aspect of then relatIOnshIp He questIOns what motIvatIOn Mr MelvIlle would have for cItmg certam occaSIOns on WhICh sexual encounters took place, and submIts that Ms. SmIth's demal of the encounters, undermmes her credibIlIty ThIS was a relatIOnshIp which began when both were Correctional Officers, and contmued dUrIng the tIme that Mr Melville was m an actmg managenal pOSItIOn, and then mto the time when he moved mto a permanent managenal pOSItIOn. However, he maintained that the fact Mr MelVIlle was manager for part of that time was of no consequence. 101 In Mr BenedIct's view, and he belIeved that thIS VIew was supported by the findmgs and conclusions of Mr Tnvett of the I.I U , was that the mcidents recounted by Ms. SmIth were Improved and embellIshed, cItmg the WhIstler and the donut shop (post-barbecue) mCIdents. He puts this down to the fact that the eVIdence that Ms. SmIth provIded to Mr Trivett was msufficient to establish a sexual harassment findmg, and therefore, she had to do somethmg more. These embellIshments and Improvements, Mr Benedict submItted, undermme Ms. Smith's credibilIty In revIewmg Telephone Call # 1 of April3rd, Ms. BenedIct submitted that in her meetmg WIth Mr Tnvett, Ms. SmIth conveyed that Mr Melville had only asked her once to come out for coffee. This IS reasonable, given that he would have known she had a ten-year old son with her Further, Mr Melville, he submitted, at no time during the conversatIOns that night said or ImplIed that he wanted to have a sexual encounter With her Ms. Smith knew he had been drinkmg and that he was intOXIcated and pomted out that she could have hung up at any tIme dunng the thIrty to forty-five mmute conversatIon. It was not the inVItation part of the telephone call but the rumour part which caused Ms. SmIth to become both angry and upset. Mr Benedict submitted that while Ms. Smith viewed It as an accusation, Mr Melville VIewed it as passing on mformation which he felt that she should know and would find helpful. It is noteworthy, Mr BenedIct added, that Ms. Smith acknowledged that she at no time, told Mr Melville that he should not telephone or contact her agam. The lieu day that Mr Melville offered to call in about, dIdn't happen, Mr Benedict submitted. The onus of proof, he submItted, IS clearly on the victim to show, to "a high degree of probabIlIty", and apply an objectIve test, that (1) the conduct complamed of happened (2) the conduct, If It dId happen, constItuted sexual harassment wIthm the meanmg and defimtIOn set out m the Human Rights Code Under the objective test, he submItted, culpabIlIty of conduct must be assess mdependently of the victim's reaction to it. 102 None of the CIrcumstances of the sexual aspect of the relatIOnshIp of Ms. SmIth and Mr MelvIlle would fit mto the defimtIon of harassment m the Human Rights Code and thIS conclusIOn would probably not dIffer, even If one preferred the evidence of Ms. SmIth. TheIr relatIOnshIp faded after September 1992, not because of any sexual harassment on Mr MelVIlle's part, but sImply because, Ms. SmIth and Mr MelvIlle lost mterest m each other He noted that Ms. SmIth telephoned Mr MelvIlle in early 1993 and asked him If he wanted to go to a show Mr Benedict stated Mr Melville acknowledges that he should not have telephoned Ms. Smith and probably would not have done so had he not been drinkmg. ThIS was, as the Employer views it, a private conversation, there was no publIc embarrassment for Ms. SmIth. It IS saId to have lasted thIrty to forty-five mmutes, and other thmgs must have been talked about. He poses the question as to whether the parties were selectIve in their recollectIon, notmg that Mr Melville's ability to recall most of the conversation was limIted at the time. The fact that Ms. SmIth was so upset and that, while not drunk had consumed alcohol, could have affected her abilIty to be objectIve and therefore to recall accurately Ms. Smith dId not take any notes at the time. There is no eVIdence made or implIed that Mr Melville was attemptmg to involve Ms. SmIth m a sexual encounter, nor was there any whIch tied the spreading of the rumour to mm. It was Ms. SmIth who told Mr Hill and Ms. Plover, and Ms. SmIth who made the calls to Mr Carson and Mr Cheung. There IS nothing about Telephone Call # 1 whIch suggests a violation of ArtIcle A or sexual harassment. There was no "course of actIOn", no vexatIOUS comments were made by Mr MelVIlle; there was nothing humIliatmg or demeaning, and no demands were made. In fact, Ms. SmIth was m total control of the situation. She SImply had to say "You're drunk; I'm not talkmg to you" , and, hang up The fact she dId not hang up suggests that she dId not find the telephone call obJectionable or unwelcome She was a WIllIng partICIpant. There was, Mr Benedict mamtamed, nothing wrong with Mr MelVIlle calling Ms. SmIth, thIS was simply a case of a male supervIsor telephOnIng a female subordmate. That IS not harassment, partIcularly when the people have had a relatIOnshIp over a two-year penod. Further, there IS nothmg mherently 103 wrong wIth asking Ms. SmIth out for coffee or whether he could come over That IS not sexual harassment, he stated. WhIle the telephone call was m bad taste, mconsIderate and annoying, it dId not amount to sexual harassment pursuant to ArtIcles A and 27, and the Human Rights Code Mr MelvIlle may have asked several tImes to see Ms. SmIth, but he was drunk and was merely trying to coax Ms. SmIth to see hIm. Merely askmg several times in a smgle conversatIOn is not vexatious conduct, persistency or a course of actIOn. Even if one takes Ms. Smith's eVIdence as true, the conversation was not threatening, or coerCIve, nor was It retaliatory Mr BenedIct argued that sImply because these two mdIvIduals have had sexual encounters m the past, It does not follow that a sexual encounter was the purpose of the telephone call. If one accept's Ms. Smith's verSIOn, that they had never had any sexual encounters, then one must ask what it is about thIS phone call that suggests Mr MelvIlle IS interested in a sexual encounter One cannot have it both ways, Mr Benedict submItted. He also looked at the practIcalItIes of the SItuatIOn and concluded that a sexual encounter was unlikely' Mr MelVIlle dId not have ms own car, Ms. Smith was home with her child and the boarder, and Mr MelVIlle would have known that. Mr Benedict made the pomt that if the Board accepts and agrees that there was no sexual harassment of Ms. Smith, then the case ends there, and there is a considerable amount of the evidence whIch becomes irrelevant. Havmg said that, he went on to reVIew the post-incident evidence. It IS the Employer's view, Mr BenedIct said, that the rumour dIed out after a week or two He then conSIdered the eVIdence of the meetmgs, Mr COWIe's report of Apnl27th, and Ms. Doherty's deCISIons m the matter and her response to controllmg the rumour, Mr MelVIlle's alcohol problem, Dr Humphnes' statistICS, Mr Melville's WDHP traming, whether a memorandum was read out at muster, why Ms. SmIth dId not have a notice from the I.I.U , and argued that none of these would need to be taken mto account m the event that no sexual harassment was found. He stated that Mr Tnvett's mvestigatIOn whIch was done promptly found that "Miss Smith's allegatIOns were not substantiated by the mvestigatlOn" WhIle the investigatIOn reports are hearsay, they do gIve some Idea of the information available to Ms. 104 Doherty on whIch she could base her deCISIOns and actIOns, that IS, the reports of Mr COWIe and Mr Tnvett. NeIther, Mr BenedIct submItted, substantIated sexual harassment or a VIolatIOn of ArtIcle A. It IS not clear whether Ms. Doherty had Dr ErlIch's notIce WhIch was dated May 7, 1993 Based on the mformatIon available to her at that tIme, the Employer takes the pOSItion that Ms. Doherty acted conSIstently WIth that mformatIon, and reasonably, WIth good faIth and WIth no Improper motlve. She brought her unhappmess and dIspleasure to Mr MelvIlle's attentIOn, and her dIsCIplInary and correctIve actIOns and reasons for them were conSIstent with Mr MelvIlle's mappropriate conduct. She also brought Mr Melville's shortcommgs to his attentIOn m her correspondence of July 12, 1993 WhIle Mr MelvIlle cannot hIde behmd the fact he was mtoxIcated, and alcohol IS no excuse for hIS behavIOur, It cannot be ignored as an Important factor m this case. Mr BenedIct submItted that Mr MelvIlle recognIzed hIS problem WIth alcohol m Meetmg # 1 and attended ARF for counsellIng, thereby bringing hIS alcohol consumptlon under control, on ms own. There appear to have been dIvergent VIews of the meeting of September 2, 1993, respectmg the work schedulmg of Ms. SmIth and Mr MelVIlle, but Ms. SmIth, did not speak with Ms. Doherty about this to try to clanfy the matter Instead, Mr BenedIct submItted, she simply said that she dId not want to deal WIth her m future. However, Ms. Smith was dealt WIth reasonably on her return to work. The problem was, as Mr BenedIct views it, that she knew that her allegations had not been substantiated. She was dIsappomted by the results and was not prepared to accept them. Ms. SmIth's case agamst Ms. Doherty SImply has no foundatlon, accordmg to Mr BenedICt. There was never any guarantee of no contact made either by Ms. Doherty when it was agreed that Ms. SmIth would return as a General Duty Officer, or Mr DeFranco, when she was assIgned speCIfically to the Control Room. The contacts made by Mr Melville were in the normal duty of busmess. He dId not enter the Control Room when Ms. SmIth was alone and then, only for a short penod of time. He was not ordered to cease gomg mto the Control Room at any tlme When asked not to address Ms. SmIth by her first name, he complIed, although he had used her first name for no partIcular purpose. It was SImply hIS normal way of addressmg CorrectIOnal Officers. Mr BenedIct submItted that from the date of Ms. Smith's memorandum 105 to Ms. Doherty, October 3, 1993, to June 17, 1994, there IS no evidence of discrimmatIOn or harassment towards Ms. Smith, and yet, the Board IS bemg asked to relate the sIckness for which Ms. SmIth receIved L TIP all to the mCIdent of Apnl 3, 1993 However, there IS SImply no eVIdence WhICh wIll allow the Board to do that. It is possible, he stated, that Ms. Smith could have had undIagnosed depressive symptoms prior to 1993, he noted that Dr Barron agreed that a smgle episode could trigger symptoms WhICh were already present. It is the Employer's readmg of the medical eVIdence that It does not matter whether Mr MelvIlle is guilty or mnocent of any wrong domg, Ms. Smith perceIves and believes that Mr Melville dId her some harm and this has contributed to her depressIOn. Dr Barron stated, accordmg to Mr BenedIct, that it IS clear that Ms. Smith will have dIfficultIes If she returns to work m a correctIOnal mstItution but advises that she should make the effort. The Employer interprets thIS to mean that she is gomg to have dIfficultIes whether Mr MelVIlle IS there or not. Mr Benedict expressed some concern about Dr Erhch's medIcal report whIch was introduced, without the latter being m attendance. He noted as well that while Dr Humphries was able to answer some general questIOns about thyroid condItions, that because Dr Erlich's report arrIved after Dr Barron's testImony, It was not possible to put SImilar questIons to him. The reports of Dr Barron and Dr Erhch state that Mr Melville was harassing Ms. Smith at work, was spreadmg stones about her, makmg numerous telephone calls at night, and that he was not disciplined for the allegations. Mr Benedict submitted that Mr Melville did not harass Ms. Smith at work, nor dId he make the telephone calls and the allegations, were proven to be unfounded. Smce thIS mformation was based on what Ms. SmIth conveyed to her doctors, her credibIlIty IS once agam undermmed, argued Mr BenedIct, as it is when she accuses Ms. Doherty oflymg and when she falls to get clarIficatIOn of the schedulmg. It IS the Employer's pOSItIon that, whIle, In many respects, Ms. Smith recounted her version honestly and truthfully, she has lost her perspectIve on the SItuatIOn. Further, the fact that Ms. SmIth's claIm IS for the emotional stress of the ongoing investigatIOn Implies that she IS concerned WIth the mvestIgatIOn rather than the rumour and comments of Mr Melville 106 Mr MelVIlle, accordmg to Mr BenedIct testIfied In a straightforward manner and made a number of unfavourable admIssIons. He candIdly admItted that he was not a very good CorrectIOnal Officer, and that he had been convIcted of ImpaIred dnvmg on more than one occasion. When he could not remember, he Said so, when he knew something he said so, and when he dId not know, he Said so His reactIOn to questIOns whIch angered hIm was strong and his recountmg of the sexual aspect of theIr relatIOnship he told m a matter of fact way, with specIfic tImes and places. Mr Melville took the mItIative to see Mr Cowie and dealt WIth his alcohol problem through Ms. Gill, There was no evidence of any alcohol problem SInce April 1993 There IS every mdication that Mr Melville behaved m a thoroughly professIOnal way when Ms. SmIth returned to work In September 1993 and there IS no reason to believe that he would not contmue to do so If Ms. SmIth returns to work. The measure of hIS credibility IS not whether or not one likes Mr Melville. The Employer IS not saymg that ms testImony IS free from contradiction and doubt in every detail, but taken as a whole, his evidence is more credible than IS the evidence of Ms. SmIth. The remedy that the Union is seeking, that is, the dismIssal of Mr MelvIlle, has, accordmg to Mr Benedict, put a dimension on thIS case that is entirely unwarranted. It is breathtaking and sad, consIdenng the circumstances of thIS case. Mr BenedIct concluded hIS submISSIons WIth the followmg commentary This case, or these cases are really not about sexual harassment and discrimination, they are about personal relationships gone wrong. Here we have Brian Melville and Mike McKinnon who have had a difficult relationship for many years, and we have Lynn Smith who strongly believes (and no one is going to conVince her otherwise) that Brian Melville has done her some very seriOUS harm, has damaged her reputation beyond repaIr, driven her from the workplace, damaged her health and caused her to suffer economic losses. Her strong feelings are understandable. No one likes to be the subject of rumours, and no amount of persuasion will change her perception that Brian Melville is the villain in this case. But Brian Melville did not do it. He is not the villain. He did not originate or spread rumours about Lynn Smith or Mike McKinnon. In many ways, Brian Melville is as much a victim of anonymous TUmour as they are. This case is not really about sexual harassment or discrimination, but about three Correctional Officers who were once friends and who now have irreconcilable differences. They are all victims, adversely affected by anonymous rumour which occurred three and a half years ago. 107 THE UNION - REPLY Mr Wright, m reply, stated that the Union is complammg of conduct which It says IS sexual harassment and that It has no doubt that the motIvation of the conduct of Mr MelvIlle and Management m general was as a result of a response to Mr McKmnon's actIVIsm as a unIOn offiCIal and hIS firm stance respecting raCIsm and dIscnmInation. This IS not a case about general dIscrimInation. It IS the posItIOn of the Union that the spreadIng of rum ours about alleged sexual interactIOn between Mr McKInnon and Ms. SmIth, and the faIlure to address the spreadIng of the rumours, are vIOlatIOns of the Collective Agreement - sexual harassment by Mr Melville, and failure to provide a workplace free from harassment by the Employer M. Wright referred the Board to Purdy v. Marwick Mfg. 87 9 CHRR D4840 which stands, In part, for the pnnciple, that a smgle inCIdent qualIfies when Interpreting the term "a course of vexatIOUS conduct" He then argued that the further rumours and allegatIOns InvolVIng Ms. SmIth and Mr McKinnon were a contInuation of the improper actions on the part of Mr Melville to Ms. Smith, since whether or not he actually spread the rumours, the evidence is clear that the rumours did not exist before he spoke to Ms. SmIth about the allegatIOn. They contInued after Ms. SmIth's return to work In September, not Within a couple of weeks as the Employer IS submItting. The Employer's explanatIOn of a "spontaneous rumour" IS beyond the realm of physIcal possibIlIty It surfaces from Mr Melville's mInd and mouth when he mentIOns it first to Ms. SmIth. ThIS constItutes a "course of vexatIOUS conduct" toward Ms. Smith and Mr McKInnon. The Umon is not askmg the Board to make findings respectIng whether or not any of the IndIVIdual actIOns by Mr MelvIlle constItute violations of the CollectIve Agreement. The purpose of tendenng them, was to show that Mr MelvIlle has ongomg dIfficultIes and IrratIOnal hatred for Mr McKInnon. That IS Important for two reasons It demonstrates that Mr MelvIlle's 108 hnkmg of Mr McKmnon' S name with that of Ms. Smith in hIS allegatIon, was not mCIdental or accIdental. It speaks to remedy, and to Mr MelvIlle's fitness as a Manager supervIsmg Mr McKmnon. The evidence ofMr Melville's reference to Mr McKmnon as a "womanIzer" and the detaIls that went WIth that demonstrate that this was not the first time that Mr MelvIlle had engaged m rumour-mongenng about Mr McKmnon and that the Board cannot have certamty that Mr MelvIlle wIll react appropnately in future to Mr McKmnon. Mr COWIe, having counselled Mr MelVIlle m the past respectIng hIS comments m the workplace about Mr McKmnon, VIewed thIS as a contmuation ofthe problem. Mr MelVIlle's comment that he had a nght to free speech under CECBA, demonstrates that he does not apprecIate hIS responsibihty for putting personal feehngs asIde to provide a harassment-free workplace. The Daniels' notes are submItted to demonstrate that Mr MelvIlle dId make "womarnzing" comments about Mr McKmnon to Ms. Doherty, and further, that Ms. Doherty, failmg to appreciate what is wrong with spreadmg rumours, was Willing to partiCIpate along with Mr Melville against Mr McKinnon. She compounded this by not takmg any action With respect to Mr McKinnon's complamt about the April 1993 rumour She further expressed some degree of pleasure WIth Mr MelVIlle, she dId not dISCIpline hIm, according to her own testimony, even for the offenng of a favour, and failed to do anything to stop the rumours or to change Mr Melville's behaviour or lack of understanding. Mr Wright conSidered Mr BenedIct's invitatIOn to the Board to find the eVldence ofMr MelVIlle preferable to that of Ms. Smith, and noted that in domg so, Mr BenedIct does not refer to the testimony ofMr Hill, a WItness who confirmed in part Ms. SmIth's testimony and thIS is strengthened by the fact that thiS testimony was offered by a fnend of Mr MelvIlle. Mr BenedIct equates Mr MelvIlle, Mr McKInnon and Ms. SmIth, saymg they are all victims. In arnvmg at its deCIsions, the Board has not taken mto account eVIdence m the following documents The Independent InvestIgatIOns Unit draft InvestIgation Report on the Dalley matter 109 The Independent InvestigatIOns Umt intervIew notes of Joe DanIels of DIane Doherty The Labour RelatIOns Tribunal declSlon OPSEU (Miller et all and The crown in Right of Ontario (MCS), (1995) T/0029/90, T0038/90 (Stanley) The only sense in which Mr Melville can be said to be a victim IS that he can be called to account for his actions. Mr McKinnon and Mr SmIth were the reCIpIents of hIS actIOns and there is both a qualitative and a quantitatIve dIfference. With all the eVIdence, the Board cannot be sure that Mr Melville understands the problem, so that it can be reassured tha1It will not happen agaIn. DECISION The Board recognizes that most sexual harassment complaints Involve allegations of vexatious comment or conduct by one party directly against another One of the grievances before this Panel concerns allegatIOns of sexual harassment made during a telephone conversation, and the creatIOn of a "rumour story" with sexual Innuendo Two of these grIevances concern the naming of the complamants m that "rumour story" and the spreading of the rumour nammg them throughout the InstitutIOn. WhIle the Board recognizes this SItuatIOn may be unusual, it is of the opinion that vexatIOUS comment or conduct does not need to be "dIrect, person to person comment or conduct" In order to constitute harassment as defined In the CollectIve Agreement and in the Human Rights Code. Further, vexatIOUS comment and vexatIOUS conduct are not restncted to direct conduct by the language of either the Collective Agreement or the Human Rights Code. IndIrect vexatious comment or conduct whIch IS unwelcome, can be Just as upsettIng and humIlIatmg as acts of sexual harassment which are more dIrect. The Board is of the opimon that the plaIn meaning of "a course of vexatIOUS conduct" or "a course of vexatIOus comment" allows for the conduct or comment to occur eIther as actIOn(s) or comment(s) whIch take place as part of a SIngle mCIdent, or as actIOn(s) or comment(s) WhICh take place as part of a senes of incidents over a penod of tIme. The word "course" means both "progress onward or through succeSSIve stages" and "a lIne of actIOn, a way of actIng", accordIng to the Oxford llniYersaLD1C.tionary The pnncIple that a smgle mCIdent quahfies when mterpretmg the term "a course of vexatious comment or conduct" IS set out as well m Purdy v. Marwick Mfg. supra. 110 It has been established under the Human Rights Code and the WDHP Policy that the workplace extends beyond the physIcal place of work, to work-related or employment-related actiVItIes, that IS, any dIscnmmatIOn or harassment with workplace reperCUSSIOns, and the Board accepts thIS mterpretation. With respect to the recountmg of the inCIdents outside the workplace when alcohol was consumed and In whIch Ms. Smith and Mr MelvIlle were involved, the Board has taken into account the dIffenng perceptIons, but due to Mr MelvIlle's alcohol consumptIOn and acknowledged hIStOry of memory blackouts, has preferred the evidence of Ms. Smith. The Board does not accept Mr MelVIlle's mtoxication or abuse of alcohol as an excuse or ratIOnale for his conduct on April 3, 1993 It recognizes, furthermore, that he has not put it forward as an excuse or ratIonale for hIS conduct, but only for hIS inabihty to recall. The eVIdence demonstrates clearly that the contact between Mr McKmnon and Ms. Smith during the Ottawa tournament was no more than associates acknowledging each other There was no evidence of intimate contact of any kind, mdeed there was not even the slightest suggestion. Ms. Smith's Grievance Naming Mr. Melville Ms. Smith IS a member of the Ontano PublIc ServIce, and an employee of the Mimstry of the SolIcitor General and Correctional ServIces. She IS subJect to the CollectIve Agreement between Management Board of Cabmet and the OntarIO PublIc Service Employees Umon, and as such, she has a right to freedom from harassment in the workplace because of sex by her Employer or agent of [her] Employer or by another employee. That is, she has a nght to be free from a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. [ArtIcle 27 10 1 of the Collective Agreement & OHRCJ It IS the overall responsibIlity of the Employer, that IS, management and supervISOry staff, as well as the indIVIdual duty of each person in the workplace, to ensure that the workplace IS free of harassment. The DIrectIve from Management Board of Cabmet dated March 1992, sets out a number of pnncIples. One of these IS that 111 A work environment that is free from harassment, as defined in this directive does not tolerate an abusive atmosphere where an employee is subjected to offensive remarks, behaviour or surroundings that create intimidating, hostile or humiliating working conditions. Ms. SmIth and Mr MelvIlle had a sporadic and mutually-agreed-to relatIOnship wIth, the Board belIeves, some sexual component, over a penod of two and a half years. They had had no social contact for seven months prior to the night of Apnl 2/3, -1993 Ms. Smith and Mr Melville testified to four events between 1990 and Apn11993, at which they had varying degrees of contact. The eVIdence showed that alcohol was a factor on each occaSIon, Ms. SmIth drank, but not to excess, whIle Mr MelvIlle consumed a large amount of alcohol, on each occaSIOn. Ms. SmIth and Mr Melville testified that on three occasions durIng these events, Mr Melville made sexual advances and/or extended InVitatIOns. Ms. Smith testified that she reJected these. Mr MelvIlle agreed that the inVItations were reJected but appears not to have perceived that his sexual advances were rebuffed. The Board IS of the opinion that on these occasions Ms. Smith made It known to Mr Melville at the time that hIS inVItations were unwelcome. He persIsted to the point that Ms. SmIth became impatient, and he was aware of her ImpatIence. The incidents involving sexual advances each ended by Ms. Smith removing herself from hIS presence, and Mr Melville may not have vIewed that as a clear rejectIon, but simply as her departure. Ms. Smith dId not speak With Mr MelvIlle about hIS conduct and her dIslike of It follOWing any of these occasions when he was sober, nor dId she make any form of complaInt. During that period he continued to function from time to time as her dIrect SupervIsor, WIthout any reported mcident, that the Board was made aware of. However, durmg the early hours of Apnl 3, 1993, Mr MelVIlle's conduct crossed the line for Ms. SmIth durmg a forty/forty-five mmute telephone call he made at 0230 hours when he was extremely drunk. The Board has had the benefit of detaIled sworn testImony and has concluded that Ms. SmIth's verSIOn of thIS conversatIOn and the one that followed later that same mght IS credible and that Mr MelVIlle's recall IS lImIted. It accepts the eVIdence prOVIded by both WItnesses - Ms. Smith's overall recountmg of the two telephone calls and Mr MelvIlle's mInImal 112 recall of the conversations, that IS, the fact he told Ms. SmIth about a sexual encounter he saId he had heard that she was mvolved m, hIS nammg ofMr McKinnon, Ms. SmIth's annoyance and anger, and his offer to request a heu day for her The Board does not consIder the lack of mdependent Witnesses to corroborate the witnesses' versions of these conversatIOns weakens the testImony regarding them. The night of the inCIdent, whIle Ms. SmIth was only slightly Irritated at being awakened by Mr Melville's call, she soon became ImpatIent and annoyed at hIs persistent mVItation to meet hIm at that time for coffee, and then, hIS request to get together at her home (where she hved with her son, her mother and a boarder) Mr Melville stated that his InvitatIOns could have Involved a sexual encounter and Ms. SmIth mterpreted them In the same way, although neIther testIfied that the wordmg of the invitatIOns speCIfically referred to the possible purpose of the proposed get- togethers. DId Mr MelvIlle's perSIstence in trymg to make arrangements to get together for a possible sexual encounter With Ms. Smith, not the next day or evemng, or some tIme later, but then and there m the middle of the mght, constitute sexual harassment? Mr Tnvett applied the test of whether "the conduct should have been reasonably known to be offenSIve, inappropnate, intImIdatmg and/or hostile behaVIOur", and concluded that The qualIfying circumstances of the relationship between the two parties has a bearing on the measure of appropriateness of the persistence of the respondent's requests. There IS again insufficient evidence to indicate that the respondent ought to have known that the requests were unwelcome and therefore the allegation is not substantiated on the balance of probabilities. The Board has taken mto account that Ms. Smith and Mr Melville work in an enVIronment where, because they are subject to twenty-four hour scheduhng, and the fact that both are single, they may not adhere to a stnctly day/evemng/mght schedule. Nonetheless, It dIsagrees WIth the conclUSIOn of Mr Tnvett, CIted above, and the reasonIng behmd It. Mr MelVIlle and Ms SmIth were not a couple who had an ongomg relatIOnshIp and understandmg that they would 113 commumcate any time of the day or mght. WhIle they may have had telephone conversatIOns m the past, late, on occasIOn, they had not done so for several months and there was no eVIdence that the conversatIOns occurred m the mIddle of the mght, as opposed to late m the evenmg. It was suggested to Mr Melville by Mr Hill that he should not telephone Ms. Smith, and so Mr MelvIlle was warned that the phone call itself could be Inappropnate and mIght be seen as unwelcome Further, a telephone call from someone who IS drunk at 0230 in the mormng. whether or not that person is a friend, IS normally not considered welcome. As well, Mr Melville knew that Ms. Smith dId not lIve alone and that the telephone ringmg In her house at that tIme of the mornmg when the other occupants would normally be expected to be asleep and mIght be awakened, could be neIther welcome nor appropriate. There is no evidence that he gave tills any thought. The telephone call was made according to the evidence to seek and inVIte some sexual encounter ThIS was not an emergency It is the Board's conclusion that a reasonable person would have known that the telephone call itself, made at that time, along with the reason it was made, would have been unwelcome and it therefore constitutes sexual harassment. It can happen in relatIOnships that an expectatIOn IS created in the mInd of one or both indIviduals, that the first "no" does not really mean "no" but means "maybe" This results m a belief that persistence, will often result m acquiescence. There was eVIdence in the case of the contacts between Ms. Smith and Mr Melville that thIS occurred on one occasIOn, when, following the barbecue, she agreed to go to the donut shop, having said "no" Imtially There was no evidence to suggest that thIS was a pattern between them, m other words, Ms. SmIth had not set up that expectatIOn. Mr MelvIlle's InVItatIon which InItIally was met WIth a mIld rejectIOn, when put forward, again and then agaIn, was met WIth mcreasIng IrritatIOn whIch was conveyed to Mr MelVIlle. He then trIed another tack, changmg the mVItatIOn, propOSIng that he would come to her place. ThIS would also have Involved hIS arrivmg in the mIddle of the mght at a household whIch included other occupants. ThIS proposal was also rejected by Ms. SmIth, even more vehemently than the earlIer ones. 114 Should Mr MelvIlle have accepted Ms. SmIth's ImtIaI refusal of hIS mVItatIOn and left It at that, or was it reasonable for him to repeat, more than once, and then change hIS mVItatIOn, resultmg m Ms. SmIth's having to refuse several tImes, each time becommg more and more IITltated? The Board beheves that a reasonable person would have known that the perSIstence in extendmg invitatIOns to Ms. Smith, was unwelcome. Mr MelvIlle should not have persIsted, but should have bowed out. It is the conclusion of the Board that this persistence was unwelcome and vexatious and constitutes sexual harassment. It was not long mto this forty/forty-five mmute conversatIOn that, havmg had his advances rejected, Mr MelvIlle began to upset and anger Ms. SmIth. ThIs was the begmning of Phase I of the rumour inCIdent. He did this by creating a rumour With sexual mnuendo involvmg her and a co-worker, leadmg her to believe that tills was a rumour he had heard from another person and that tills other person had made hIm swear that he would not tell anyone who had told mm. No witness recalled hearing the rumour at Jackhammers or pnor to the telephone call of April 3rd, 1993 The manner in whIch Mr MelvIlle presented the alleged source of the "rumour" led Ms. Smith to beheve that he knew who had told hIm of the allegatIon but he was not gomg to tell her, adding to her frustratIon. Not only had he offended her and made untrue sexual allegations involVIng her, he had presented the story to her m such a way that she was led to belIeve that thIS rumour was floatmg around amongst her colleagues, and that could mclude both co-workers and management. He dId not at first say who the co-worker was, and that added to Ms. Smith's upset. Then when he named the UnIon vIce-president who was marrIed as the male co-worker WIth whom she was rumoured to have had a weekend affaIr, and whom Ms. SmIth knew to be the obJect of Mr MelvIlle intense dIslike at work she was not only upset but very angry Mr MelvIlle then, made the situatIOn more stressful by adding, "You nommated hIm" It was not clear from the eVIdence whether he mtended thIS to mean "You nommated hIm, therefore you must have been sexually mvolved WIth hIm" whIch was how Ms. SmIth mterpreted It, or If he mtended it to mean "you nommated hIm" and 'that's what you get for domg so' 115 DId thIS action on the part of Mr Melville constitute engaging in a course of vexatious comment or conduct that IS known or ought reasonably to be know to be unwelcome? The Board rejects Mr MelvIlle's explanatIOn that he had heard thIS "rumour" from someone else and was Just letting Ms. SmIth know out of concern for her It also rejects hIS explanatIOn that the rumour was sImply planted m hIS mmd. When Mr MelvIlle upset Ms. SmIth he dId so by "engaging In a course of vexatIous comment" that he should have known would be unwelcome" If it had not been unwelcome, It would not have upset her and that, the Board believes was the pOInt of the exercise, that was hIS motIvatIOn In creatIng this "rumour story" Mr Trivett set out ms conclusIOn as follows. It is acknowledged that the proliferation of a rumour by a specific person may be a manner in which one might affect unwanted sexual attention. There is insufficient evidence to suggest that the respondent repeated the allegation to anyone but the complainant. It is the position of this investigative unit and the authors of WDHP policy that in the circumstances indicated herein the issue raised by the respondent to the complainant [the alleged rum our] does not constitute sexual attention in and of itself, but is simply a symptom of what at the time was a conflict within a relationship of two people. In arriVIng at tms conclusion, Mr Trivett focussed on the spreadIng of the "alleged rumour" and on Mr Melville's role merely as one conveyor of an already existIng rumour That was not ms role. He was the fabncator of a malicious, personal story the purpose of wmch was to upset Ms. SmIth. It created In her a perceptIOn that negatIve attentIOn was being focussed on her because of untrue sexual allegatIOns InvolVIng her With a marrIed co-worker, the vice-president of the UnIon local. While that IS not dIrect sexual attentIOn of Mr Melville, It IS Mr Melville fabricating and relatmg to her, a mahcious he with sexual innuendo m the gUIse of a rumour He wanted her to belIeve that others had heard this. Mr Melville was not just another person passmg on a rumour WIth sexual Innuendo He had fabncated It. When he knew that Ms. SmIth had become extremely upset, he dId not say that he had made It up, nor dId he apologize. It is the conclusion of this Board that Mr Melville set But t6 upset Ms. Smith when he found his invitations rejected, and in doing so, he I \\ ~ Q~--\ Lt.", 116 engaged in a course of vexatious comment that...ought reasonably to be known to be unwelcome. and the result was that she was subjected to sexual harassment. DurIng Telephone ConversatIOn # 2, realIzmg that he had caused Ms. SmIth consIderable upset, for which he acknowledges partIal responsibilIty, Mr Melville, then offered to telephone the ShIft I/C and on her behalf asked that she be consIdered for a lieu day In doing this, he belIeved that the influence he could exert as a manager would more favourably dIspose a fellow-manager to grant the lIeu day He recognized, and the Board recogmzes, that the decision would not be up to him, and that he dId not have the power to grant the lIeu day, gIven that he was not the ShIft I/C SInce Ms. SmIth refused hIS offer, he dId not make the request for consideration. Mr Trivett concluded the follOWing: For the matter to constitute sexual harassment, a person in authority must threaten or penalize a person with loss of job, denial of advancement, raise or other employment benefit for the noncompliance of sexual demands. In this circumstance the respondent is making an offer that would benefit the complainant in spite of noncompliance, and as such this matter does not constitute sexual harassment on this basis. The allegation is not substantiated on the balance of probabilities. The Board agrees WIth Mr Tnvett, that the offer to ask for consideration for a lieu day for Ms. Smith does not constitute sexual harassment in that there were "no strings attached" However, that does not mean that the offer was appropriate. Mr MelvIlle was an OM 14, at that tIme, and was frequently Ms. SmIth's dIrect SupervIsor In that pOSItion, he must handle requests for lIeu day and schedulIng asSIgnments. He must also carry out lImIted dISCIplIne and performance evaluatIOns. He must be seen to treat employees equally and faIrly m all aspects of hIS management of them. The Board recogmzes that the offer of Mr MelvIlle however, gave some mdicatIOn that he had come to realIze he had caused Ms. SmIth some upset and that at least at that pOInt he tned to alleviate her dIstress, although the method chosen was Inappropriate. It came up In eVIdence that It IS not unusual at Metro East in cases in whIch there IS an eXIsting relationshIp mvolvmg a manager and a subordmate, for the management person to call m on 117 behalf of the subordmate requestmg a lieu day It IS, m the opmIOn of thIS Board, a practice to be discouraged. It puts the deCISIOn-maker m the pOSItIOn of turning down the request of a peer If he/she refuses, gives an impressIOn that If a subordinate wants a lIeu day the way to get it is through a certam manager; It labels the grantors as mtermedIanes and purveyors of favours to subordmates and the subordInates as reCIpIents of favours from management. Those needing a lIeu day are responsible for making the request themselves to the appropnate management person at the tIme, unless there IS a valId reason for that individual not makmg contact WIth management dIrectly In summary, the Board finds that, by telephoning Ms. Smith in the middle of the night, to arrange a get-together possibly for a sexual encounter, by persisting in pressing his invitations to meet and by his action in creating and telling Ms. Smith of the alleged rumour with its sexual innuendo on April 3, 1993 (Phase I), Mr Melville, then an OM 14, now an OM 16, has engaged in a course of vexatious comment which he ought to have known was unwelcome. In doing so he violated the right of Ms. Smith to freedom from harassment in the workplace because of sex as set out in Article 27 10.1 of the Collective Agreement. In Phase II of the rumour incident, the alleged rumour whIch was actually not a rumour when it was told to Ms. SmIth, took on a life of its own and began to enter the Institution. First Ms. SmIth repeated the alleged rumour to Mr Hill on the telephone, and Mr Hill's eVIdence was, and the Board accepts It, that he dId not convey the alleged rumour to anyone m the few days follOWIng that telephone call. Although It IS not absolutely defimte, the eVIdence suggests that Mr Hill was not working at the InstItution on that weekend. He dId however, speak With Mr MelvIlle. At approximately 0400 hours on Saturday morning, Ms. Smith told Mr Carson, only, that she was upset "because of a unit manager" About twenty mmutes later, when contacted by OM 14 Ashley, she related to Ms. Ashley, accordmg to Ms. Ashley's Occurrence Report, that "a umt 118 manager phoned her and made lewd and uncalled for accusatIOns about herself and another person" She did not name anyone, but Ms. Ashley asked If the telephone caller had been dnnking that evening and when Ms. SmIth responded that he had, Ms. Ashley remarked that she thought she knew whom Ms. SmIth was talkmg about. Ms. SmIth asked her to keep It to herself, explainIng that she did not want any names dIscussed. These two pIeces of information, with the exceptIOn of Ms. Ashley thinking she knew the person Involved, were qUIte properly recorded In the Occurrence Reports directed to Ms. Doherty That Information was then conveyed by Mr Carson by telephone to Mr Vance who was responsible for the InstItutIOn that night and who would be commg in to take responsibihty in the mormng. The Occurrence Reports appropnately, also went to Mr Mikel, and hence to Ms. Doherty and Mr Cowie on AprIl 5th. Mr Cheung and Mr Bnttain were also aware that there was something wrong since they knew that Ms. Smith was upset and askIng for UnIon representation. (It was not clear at what pOInt Ms. Smith spoke to a UnIon representatIve.) On the Saturday, Ms. SmIth was absent from her ShIft and no doubt, her absence added fuel to the fire, and mdeed there were very probably a number of other mdIviduals for whom her absence raised a question and some who were concerned for her well-being. There is no eVIdence that Mr Melville told the story of the alleged rumour to anyone other than Ms. GIll, Mr Mikel, and Mr COWIe. However, Ms. Plover who was workIng at the InstItution on Saturday heard in the morning "on the floors and m the lounge" that "Lynn had gone home shortly after the ShIft had begun (whICh was not true), and she was in tears, and upset" Ms. Plover recalled being told that she "had gone home because Brian Melville had called her the mght before and accused her of sleepmg WIth Mike McKInnon m Ottawa" Ms. Plover telephoned Ms. SmIth to see If she was all nght and spoke to her after 1600 hours that same day By Sunday, Apnl4th, the tIme of Ms. SmIth's arrIval at work at 0900 hours, the alleged rumour had become a real rumour and was well on Its way around the InstItutIOn, becomIng embellIshed as It spread, up to and inclUdmg the rape of Ms. SmIth as part of the scenario Ms. Smith was made paInfully aware of this upon her arrIval at the workplace by both the comments and actIOns of some of her co-workers. 119 The Board recognizes that rumours take on a lIfe of theIr own, and can begIn from the smallest bIts ofmformatIOn coming together However, it is the conclusion of the Board, that Ms. Smith was discreet about the alleged rumour and cannot be held responsible for moving it into and around the Institution. Mr MelvIlle who was responsible for creating the rumour, was not, in the opmIOn of the Board, a partICIpant m movmg the rumour Into and around the InstItutIon. However, it is necessary to recognize that had he not fabncated the story of the rumour In the first place it would never have amved at the InstItution. The eVIdence of Mr Bnttain showed that the rumour was stIll present In the InstItution In September 1993, that is, five months later Ms. Smith testified she observed that, on occasIOn, certam groups of people would stop speakIng when she entered the lounge, for Instance, and it seems she concluded from that, that they had been talkmg about her, pnor to her arnval. While she did not have direct evidence of this, the effect of the rumour m the workplace for her, had been such, that she arnved at that conclusion, and It was not unreasonable for her to have done so, under the circumstances. The Board finds that Mr Melville was the author of the of the "rumour story" (phase I) and had he not fabricated it, the "rumour" (Phase II) would never have come about. However, it has concluded that there is no evidence to support the allegation he was instrumental in spreading the rumour throughout the Institution. The Board has been able to determine that the rumour of the allegations involving Ms. Smith and Mr McKinnon did spread through the Institution but it has not been able to determine how that rumour developed. Ms. SmIth alleged that durIng the time that she was in the workplace between the InCIdent and June 22, 1994, there were several Incidents involVIng Mr MelvIlle that she conSIdered problematic The Hospital Escort Incident The Call for Computer Information The Presence in the Control Room Addressing Ms. Smith by her first name, Lynn 120 Ms. SmIth testIfied that on one occasion, Mr MelvIlle entered the Control Room when she suggested that hIS presence there was contrary to hIS dIrective to aVOId contact with her Mr MelvIlle explaIned that in carryIng out his duties as an OM 16, he might be reqUIred to be In any sectIOn of the Institution. ThIS eVIdence was confirmed by other wItnesses. It was as part of his duties that he went to the Control Room on the occasion referred to, and he made certain that another Correctional Officer was present when he entered. His stay there was two to three mmutes. The Board finds that there is no evidence to support the suggestion of Ms. Smith that his presence there was uncalled for or was with the purpose of in any way antagonizing her Nor was there any evidence of antagonistic or harassing conduct on the part of Mr Melville during the time he spent there. Ms. Smith alleged that Mr Melville was addressing her by her first name, implYIng that he was selecting her out for a more famIlIar term of address. Mr Melville explained that there is no mandated form of address for Managers to use when speaking to subordinates. He stated that at muster, it is usual to use only the surname, that IS with no form of address and that this is generally viewed as a practice aimed at effiCIency Other than that, the practIce vanes. The Board takes from this that Ms. Smith, as others m her pOSItion in that workplace, would find herself addressed vanously by Managers as "Lynn", "SmIth", and "Ms. SmIth" While the Board understands that Ms. Smith might feel more comfortable with Mr Melville addressing her as "Ms. Smith", it finds that Mr Melville did nothing inappropriate or untoward by addressing her by her first name. In summary, the Board finds that the evidence does not demonstrate that Mr Melville has attempted to contact Ms. Smith, or has conducted himself in an inappropriate manner towards her since the incident on April 3, 1993. 122 The Grievance of Ms. Smith Naming Ms. Doherty To consider thIS grievance, the Board must look at how the Management of the InstItutIOn responded to Ms. SmIth's sItuatIOn mItIally, the handlIng of her complaint and then her accommodation. Ms. Doherty was the Superintendent at Metro East when the incident occurred and remained m that pOSItIOn untIl September 1994 In that capacity she was In charge of the admimstratIOn of that facIlity and was dIrectly responsible In that workplace for seeIng that the nghts and the dIgnity of employees were respected. Mr COWIe was the Deputy Supenntendent at Metro East from September 1991 to December 1994 and m that capacity he deputIzed for the Supenntendent during any absences and supervised the traIning and health-care departments. Ms. Doherty testIfied that she had delegated to him the authority to InItiate and carry out investigatIOns ofmcidents. Mr Mikel was the Senior Assistant Supenntendent (Operations), Mr Mitchell the Semor ASSIstant SuperIntendent (ServIces), Mr De Franco the Semor ASSIstant Superintendent (CorrectIons), Mr Vance the Semor ASSistant Superintendent (Social Programmes and AdministratIOn), and Mr Carson OM 16, the Shift I/C on duty on Apnl3, 1993 The ImmedIate response to Ms. SmIth's distressed call when she telephoned the Institution, in the early morning hours of April 3, 1993, was, on the part ofMr Carson, Ms. Ashley and Mr Cheung, competent, sensible and sensitive. They recorded the informatIOn they received and the actIOns they took. The mdIvidual who was responsible and on-call that mght, Mr Vance, was mformed of what had occurred, so that he could be on notIce to deal WIth the SItuatIon later that day when he was m the Institution. In the Board's opmIOn those involved were helpful, Willing to lIsten and respectful of Ms. SmIth's pnvacy Mr Carson s request for a female manager to follow-up WIth a telephone call dIsplayed a level of concern that IS reassunng. The next follow-up response was made by Mr Mikel on Monday mornmg, Apnl 5th. Mr Mikel let Ms. SmIth know that Semor Management was aware of the mCIdent and offered assistance and informatIOn. ThiS call was made pnor to hIS attendmg Meetmg # 1 He let Ms. SmIth know that 123 an mvestIgatIon would be undertaken, and that It would be conducted confidentially He was mformed by Ms. SmIth that she wished to consult someone before proceeding, and he then asked her to call if she wanted to proceed With a complaInt. She thanked hIm for hIS call. A memorandum outlimng the detaIls of the telephone call and attachIng the Occurrence Reports of Carson, Ashley and Cheung, was sent to Ms. Doherty and copied to Mr Cowie. It's subJect was HARASSMENT COMPLAINT The Board VIews Mr Mikel's response as prompt, mformatIve and helpful to Ms. Smith. Mr Cowie arranged a requested meeting promptly and dealt WIth Mr Melville firmly, fairly, duectly and in a SupportIve manner Mr MelvIlle's request to meet With Mr COWIe on Apnl5th, and to do so with the aSSIstance of Ms. GIll, whIle a sensible thmg to do, given the situatIon he found hImselfm, was made, the Board belIeves, to mimmIze the fall-out wmch he might experience from hIS conduct on April 3rd. Mr Cowie, m the opmIOn of the Board, took this inCIdent senously and set out to deal with it expeditIOusly He put Mr Melville on notice not to discuss the issue and to deal with Ms. SmIth and Mr McKInnon in a professIOnal manner To allow himself the space to carry out hIS investigation unimpeded, Mr Cowie suspended Mr Melville for a five-day period, With pay ThIS was the extent of the authority available to him at the time. Seeking further authonty could have meant postponmg the suspension. Prom this point on, Mr Cowie kept Ms. Doherty informed both by speaking dIrectly with her and providing her with written material. The followmg day, Mr COWIe met With Ms. SmIth, Mr McKmnon and Mr Stockwood and they were satIsfied that Mr COWIe took theIr concerns senously The Board IS of that opinion also He mformed them of the varIOUS routes they mIght take m dealmg WIth theIr complaints. On April 7th, Mr COWIe met with Mr Carson on one occaSIOn and WIth Mr Stockwood, on another By the followmg day, Thursday, Apnl 8th, he considered that he had gathered all the information and telephoned the I.I.U for adVIce on how to proceed. He was informed that until he knew how the complamants were proceedmg he could do nothmg. 124 On at least three more occaSIOns, mostly mformal, Mr COWIe met WIth Mr Stockwood to try to determIne the complamt route that Ms. SmIth wanted to take and also spoke WIth a CorrectIOnal Officer who was talkIng about the rumour There appears to have been consIderable confuSIOn and IndeCISIveness as to the approprIate resolutIOn route for Ms. SmIth to take and the evidence does not enlighten the Board as to the source of that IndeCISIon and delay Ms. SmIth's complaint agamst Mr Doherty is, In effect, twofold. 1 that she dId nothmg to stop the rumour, and 2. that she took no action agamst Mr MelvIlle for inappropriate conduct that he had acknowledged. A review of the eVidence demonstrates that Ms. Doherty as the Superintendent of the InstitutIOn did nothIng to control the spread of the rumour She testified that she had regular ongOIng contact with staff throughout the InstItution, but then testified that SInce she was not up on the floors that often she was not sufficiently aware of the rumour's eXIstence to take any actIOn. She mIght have inqUIred of some members of staff to find that out. There was a month from the tIme of the mCIdent on Apnl 3, 1993, and Ms. Doherty's receIpt of Mr COWIe's report. There is no evidence that Ms. Doherty personally took action of any kmd durmg that period respectmg the mcident and Mr MelvIlle's acknowledged behavIOur She was aware ofMr Mikel's telephone call on Monday, Apnl 5th and on Apnl 7th, via his memorandum. She was also kept apprised during the month or so by Mr COWIe. Mr COWIe met Mr Melville on Monday, Apnl5th, and at that time suspended him in order to carry out his mvestIgatIOn, and promptly got on WIth the Job. There was no evidence of Ms. Doherty's mvolvement in the suspension or the mItiatmg of the investIgatIOn and mdeed, Ms. Doherty mdIcated that she did not dIsapprove ofMr COWIe's deCISIon to suspend Mr MelvIlle, whIch would mdIcate that she was not party to the ongmal deCISIon. She had, however, delegated to Mr COWIe the authonty to mItIate and carry out inveStigatIOns. 125 Ms. Doherty wrote to Mr COWIe In response to hIS memorandum of Apnl 27th (not the report) and asked him to contact the I.I.U to determine how Ms. SmIth was proceedIng. On May 4th she dId take some actIOn and requested authonty for Mr MelvIlle to be ordered to undergo a mandatory medical, but then, the Regional Manager, Mr Cooley, concluded it was not necessary Shortly after May 4th, Ms. Doherty dId meet WIth Mr MelVIlle. She did not make any notes of thIS meetmg or place any notations m the file of Mr MelvIlle. The Board questions why she chose not to do so She testified she wrote hIm a letter confirmIng the meetmg but was unable to produce that. (She may have confused her follow-up of the July meetIng) Ms. Doherty dId recall that It was important for her at thIS pomt to refer Mr MelvIlle to a professional organization for assessment. However, she dId not need to do that, gIven that he had already been for an mtake intervIew on April 8th and one treatment IntervIew on April 27th, assuming that hIS appoIntment went ahead as scheduled. She described Mr MelVIlle as apologetic and willmg to do whatever was required. Unfortunately, she did not pIck up on thIS WillIngness and follow through to see that he met the requirements or his undertakIngs. Ms. Doherty was asked to explain her lack of actIOn in response to this incident. She testified that she understood that the WDHP polIcy stated that she had a responsibIlIty to stop any repeated behavIOurs and that she dId not belIeve that there had been a repeat of the behavIOur (The Board assumes she meant the telephone call, not the rumour) Further, she mdIcated that she dId not yet know the outcome of the I.I U InvestigatIOn and that It would have been unfaIr to take any action untIl she receIved that mformatIOn. There was a rumour runnmg through the InStitutIOn that was causIng Ms. SmIth conSIderable concern and upset. Ms. Doherty testIfied that she knew that. Ms. SmIth had booked off SIck on AprIl 13, 1993, and It was not unreasonable to assume that there might have been a connectIOn but Ms. Doherty testIfied that she had no Idea as to the reason for Ms. SmIth's sick leave. The Board finds It dIfficult to accept Ms Doherty testimony that she had to take hold and do the right thing for both Mr Melville and Ms. Smith without prejudIcing the harassment complaint; [she] could not Ignore thiS problem whIch had been brought to [her] attentIon and felt she had to do somethmg about it. 126 When an individual has expenenced an Incident whIch he or she IS sufficiently affected to regIster a complamt wIth his or her Employer, It IS cruCial to the resolutIOn of that complaInt, that the complainant is mformed suffiCIently so that he or she understands that he or she IS being taken senously and that somethmg is being done. In early June 1993, Ms. Doherty receIved a copy ofMr Tnvett's report and findmgs respectIng Ms. SmIth's allegatIOns. To follow up on this Ms. Doherty dId two things: she had Mr MelvIlle m for a meetmg five weeks later, provIdmg hIm WIth a formal letter at the same tIme, and she wrote to Ms. SmIth. She told Mr MelvIlle that "the InvestigatIOn dId not provide any eVIdence to substantIate the allegations" ThIS message was qUIte erroneous. The evidence was there, It was simply determined by Mr Trivett not to constItute sexual harassment under the defimtIon of the WDHP That does not make the inCIdent any less mappropriate. The result of this was that Mr MelvIlle believed that he was vmdicated by the I.I.U report, that IS, he belIeved that it had been determined that he had done nothmg inappropnate, except to telephone at an unseemly hour Ms. Doherty did warn Mr Melville that "as a manager offering to arrange a heu day for a subordmate as a result of your own behavIOur dUrIng off hours [was] not appropnate" She mformed hIm that thIS behavIOur would not be tolerated. However, Mr MelvIlle must have not agreed With Ms. Doherty's stand on that issue as he testIfied at the hearmg that he did not consIder hIs offer of a lieu day Inappropnate "In the CIrcumstances" She further warned hIm that he would be dIsciplIned in future for any alcohol related mIsconduct that "mIght bring dIscredIt to [hImself] or the mimstry" Ms. Doherty went on to state she mtended to monitor the situatIOn and "request[ ed]" hIm to provIde (a) a written report from hIS doctor concernmg assessment of the alcohol problem (b) a wrItten report from hIS doctor concernmg hIS progress m treatment. There was no evidence that these had been produced, that Mr Melville's file had been brought forward or acted upon, that Ms. Doherty had momtored Mr MelvIlle's imposed commItments or that she delegated thIS task to anyone. The only documentatIOn proVIded by Mr MelvIlle, 127 accordmg to the eVIdence was a letter notmg that he had attended an appomtment of Apnl 8th and that he had an appomtment for Apnl 27th. On July 13, 1993, Ms. Doherty wrote to Ms. SmIth statmg that she (Ms. Doherty) had requested an I.I.U investigatIOn. It was the Board's understandmg from the eVIdence that Ms. Smith had filed a complamt, and that IS what generated the mvestigatIOn, rather than any initIative on the part of Ms. Doherty Her mstructions to Mr COWIe were to mvolve the I.I U as advisors. She then went on to state that There is no evidence in the report to support your allegations. That IS SImply not true. There was eVIdence that Mr MelvIlle had made the telephone call, that he had persIsted for a get-together, that he had told Ms. SmIth about the rumour of her alleged sexual liaIson WIth Mr McKmnon, and that there was a rumour that had been Circulating throughout the InstItution. Mr Trivett determmed that there was "some degree of uncertainty whether this request [to come out for coffee and for Mr Melville to come to Ms. SmIth's house] constitute [ d] sexual attentIOn", "there IS msufficIent eVIdence to indIcate that the respondent ought to have known that the requests were unwelcome", "and the Issue ralsed by the respondent to the complaInant does not constitute sexual attentIOn m and of Itself, but IS SImply a symptom of what at the time was a COnflIct wIthm a relationshIp of two people" Mr Trivett concluded that, in his opinion, the allegatIOns dId not constItute sexual harassment under the definitIOn of the WDHP He dId not say that the telephone call m the mIddle of the night dId not happen, or that Mr MelvIlle was not perSIstent, or that he dId not convey a rumour about her and McKinnon to her, or that there was no rumour CIrculating m the InstitutIOn. It is the conclusion of this Board, that the individual members of Management with whom Ms. Smith had initial contact fulfilled their duties and responsibilities towards her both as an employee and as a complainant and did so in an appropriate, respectful and competent manner Although the Board is of the opinion that a clear directive from Management respecting a cessation of staff spreading the rumour would have been worth the risk of 128 increasing the knowledge of it, the Board has concluded that Mr Cowie's response overall was professional, prompt, balanced and reasonable. The Board has determined that the incident of April 3, 1993, and the rumour (Phase II) with its sexual innuendo moving throughout the workplace constituted sexual harassment for Ms. Smith. Ms. Doherty made no attempt to alleviate this situation which was both stressful and harassing for Ms. Smith. She took no action to let staff at large know that Management was aware of the rumour, aware that it was continuing to circulate, and that Management expected further discussion of the matter to cease. It is the opinion of the Board that had Mr Cowie and/or Ms. Doherty issued such a directive, it would have provided a clear statement of Management's unwillingness to tolerate the spreading of the rumour within the workplace. The rumour circulated throughout the workplace and the Board has concluded that Ms. Smith suffered sexual harassment in the workplace as a result and that her stress was exacerbated by this. In August 1993, Ms. SmIth felt, and Dr ErlIch concurred, that she had recovered sufficiently to return to the workplace He saw her after her attendance at MeetIng # 12 on September 2nd, 1993, when, accompanIed by Mr Stockwood, she met WIth Ms. Doherty and Mr Cowie. Her physician prOVIded her WIth a retum-to-work letter m whIch he offered the opmIOn that he "[felt] that she should not be under the dIrect supervlSlon of the officer agamst whom she [had] laid a complamt" At thIS meetmg Ms. Doherty mformed Ms Smith that her letter from Mr Tnvett stated that "there was no substantIatIOn" and that Mr MelVIlle "[had] done nothmg contrary to the polIcy" Ms. Doherty then offered to try to arrange a transfer for Ms. SmIth. The Board belIeves that the partICIpants left thIS meetmg WIth the followmg understandmg . OppOSIte ShIfts for Ms. SmIth and Mr MelvIlle were to be conSIdered as much as possible . contact between Ms. SmIth and Mr MelVIlle to be mll1lmIzed as much as possible . Mr MelvIlle to be mstructed to mimmIze contact except when absolutely necessary in the course of hIS superviSIOn . Ms. Doherty to contact the ShIft SupervIsor and "adVIse them to accommodate" . there was no guarantee of no contact. 129 When Ms. SmIth had been back at work for a month or so, she wrote a respectful and reasonable Occurrence Report dIrected to Ms. Doherty m whIch she noted that there had been a number of minor mCIdents whIch gave her concern and suggested that there mIght be some communicatIOn dIfficultIes at the management level. Instead of speakmg with Ms. SmIth or askmg Mr COWIe to do so, or treatmg thIS request for fine-tunmg WIth the respect It deserved, Ms. Doherty sent a memorandum in reply to Ms. SmIth In whIch she dIstorted the substance of the Occurrence Report, and Imphed throughout that Ms. SmIth was bemg dIfficult and unreasonable. Ms. Doherty, by the tenor of thIS memorandum could have left Ms. SmIth feelmg that she dId not have the support of Semor Management m tryIng to deal With the stress that thIS SItuatIOn was stIll causing her The evidence demonstrates that Mr DeFranco approached the accommodatIOn of Ms. SmIth in a reasonable and forthnght manner during the tIme she was at work. If problems arose, he appears to have taken them senously and dealt With them. However, the accommodatIOn In the Control Room was terminated at the end of April 1994 Mr Mitchell wrote that it could not be continued for staffing reasons. There was no planned phase-out of the control-room accommodation and no dIscussion with Ms. SmIth pnor to takIng the deCIsion. It was replaced by a subsequent, phYSICIan-requested, scheduling accommodatIOn related specifically to Ms. Smith's medIcatIOn. In the first phase, the accommodatIOn was to run for SIX weeks. It was later renewed to a maximum of a further SIX weeks whIch would have meant it would have lasted until early August 1994 However, Ms. SmIth left work on June 22, 1994 As a result ofMr MelVIlle's ImtIaI actIOns on Apnl3, 1993, a frustratmg cham of events was tnggered. In part, because of the manner In whIch the matter was handled, the situation Itself, and the lack of support Ms. SmIth felt from Management, she found the SItuatIOn both stressful and demorahzing. It caused her both physical and psychologIcal suffering While the incident on April3rd caused Ms. Smith to become emotionally upset and angry, it was the lengthy and to her, seemingly fruitless process that she went through beginning about the middle of April 1993, that was continually distressing for her However, it was, 130 in the opinion of the Board, and based on the medical evidence, only partly responsible for her medical and psychological condition over the past several years. It is the conclusion of the Board, after careful consideration of the evidence, that Management took reasonable steps to ensure that following April 3, 1993, Mr Melville did not personally add to the harassment that Ms. Smith had suffered at the workplace. The Board does not consider the fact that Mr Melville was in the Institution at the same time as Ms. Smith or that their paths might have crossed, constitutes harassment. The Board does consider that the discomfort, and embarrassment of having the rumour in the workplace was humiliating for Ms. Smith and contributed to her emotional distress. For that period of time she was not, in the opinion of the Board, provided with a harassment-free work place. The Grievance of Mr. McKinnon Naming Mr. Melville Mr McKmnon IS a member of the Ontano PublIc ServIce, and an employee of the Mimstry of the Solicitor General and Correctional Services. He IS subJect to the Collective Agreement between Management Board of Cabinet and the Ontano PublIc ServIce Employees Umon, and as such, he has a right to freedom from harassment in the workplace because of sex by her Employer or agent of [her] Employer or by another employee. That is, he has a nght to be free from a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. [Article 27 10 1 and the Collective Agreement & OHRC] It IS the overall responsibIlIty of the Employer, that IS, management and supervISOry staff, as well as the indIVIdual duty of each person m the workplace to ensure that the workplace IS free from harassment. The DIrectIve from Management Board of Cabmet dated March 1992, sets out a number of pnnclples. One of these IS that A work environment that is free from harassment, as defined in this directive does not tolerate an abusive atmosphere where an employee is subjected to offensive remarks, behaviour or surroundings that create intimidating, hostile or humiliating working conditions. [Emphasis added] 131 The eVIdence establIshed that there IS a hIstory of ammosIty between Mr Melville and Mr McKinnon. Both made It clear that they had long ago reached a stage of mutual dIslike, dIsrespect and mIstrust. Mr Melville dId not appreciate Mr McKinnon's fervent espousal of hIS unIOn actIvitIes and appears to have seen all of these as antI-management. His VIew was remforced by havmg heard Mr McKInnon verbally vent hIS Ire on a smgle occaSIOn m the A & D unIt, agamst Management shortly after hIS remstatement almost fifteen years ago Mr MelvIlle stIll retaInS thIS ImpreSSIOn and resentment. He described Mr McKInnon as "completely unco-operatlVe with any of the OperatIonal Managers" It seems to be accepted that labour relations have been rocky at Metro East. Mr Melville appears to hold Mr McKinnon responsible, in large part, for that. Mr McKInnon perceIves that Mr Melville is determIned to make his lIfe in the workplace miserable, through bullYIng and discourtesy as well as offenSIve and discnmmatory comment. Further, Mr MelVIlle refuses to believe in the eXIstence ofMr McKInnon's aborigmal heritage, even m the face of such eVIdence as hIS membershIp m the OntarIO NatIve Employment EqUIty CIrcle. His reaSOnIng IS that Mr McKInnon only became an abOrIgInal when there was some advantage to be had and therefore he could not really be a natIve person. Mr Melville testIfied that he could not understand "why an IndIVI~Ual would deny and make Jokes about ms natIve ancestry" early on, and then espouse It later Mr McKInnon s heritage and how he chooses to draw on It and enJoy It, IS hIS busmess. It IS not the busmess ofMr Melville, other than to respect it. The evidence demonstrates that Mr MelVIlle has, m the past, Said things m the workplace about Mr McKInnon whIch were mappropnate and whIch Mr Cowie determined were at the time worthy of correction, but not of dIscIplme. There was no eVIdence of this conduct after Apnl 3, 1993 The Board found most dIsturbIng the eVIdence gIven by Mr Melville and Ms. Doherty, that he, Mr MelVIlle, had taken It upon hImself, dunng a conversatIOn WIth Ms. Doherty to Inform her that Mr McKInnon was a "womamzer" He told her of an InCIdent whIch he saId he had heard 132 about, referrmg to Mr McKInnon's alleged attendance and conduct at a socIal affaIr outside the workplace attended by a number of staff from Metro East. The mformatIOn he was passing on was guaranteed to put Mr McKmnon m a bad lIght. Mr MelVIlle does not seem to appreciate that there was a nsk that the mformation was not true, mdeed Mr McKmnon vehemently denied it. Mr McKinnon testIfied that there was no partIcular reason that he thought Ms. Doherty should be made aware of this "informatIOn", other than "a Supenntendent should know everything there is to know about her employees" He acknowledged that he also "had detaIled discussIOns about other employees", notmg that "not every employee m the InstltutIOn does the thmgs that Mr McKinnon does" He did not clanfy whether these were related to Job performance or SOCIal activitIes. For the Board, one of the most dIsturbmg aspects of this scenario, was that there was no eVIdence that Ms. Doherty said anythmg to pomt out to Mr MelVIlle, that mformatIOn based on rumour was usually unrelIable, or that there was a mechanIsm for complamts that was well- publiCIzed WhICh anyone who was offended could use. By fallmg to counter Mr Melville's passing on of the rumour, she became a partICIpant and a receIver ofrumours. One of the most effectlve way to stop rumours IS for the receIver to mform the delIverer that he or she does not want to hear that gossip Further, there was no evidence that Ms. Doherty gave Mr McKinnon an OppOrtunIty to respond to the accusatIOn whIch had been unoffiCIally made against him, and she therefore, allowed herself to retam and accept this rumour ofMr McKinnon's alleged questIOnable conduct. It cannot help but affect her ImpreSSIOn of hIm, and that may have been the reason Mr MelvIlle drew It to her attentlon. In the case before us, Mr McKInnon mamtams that Mr MelvIlle has, by nammg hIm m thIS rumour, sexually harassed hIm and pOIsoned hIS work enVIronment. Mr BenedIct, for the Employer, argued that there was no evidence that Mr MelVIlle spread the rumour about Ms. Smith and Mr McKInnon, and charactenzed It as an anonymous rumour, whIch developed spontaneously from bItS of non-confidential mformatIOn floatIng around the InstItution. The Board has determmed that Mr MelVIlle was the fabncator ofthe alleged rumour Ifhe had not fabricated it, It would not have arrived at the workplace. He cannot now avoid responsibIlity 133 i for Its havmg entered the workplace by saymg that he dId not dIstribute rumour, which IS the same as saying that Ms. SmIth was responsible for its dIstributIOn, smce she was the only person to whom he says he related the alleged rumour Whether Mr MelVIlle mcluded Mr McKInnon in the "alleged rumour" to annoy Mr McKmnon or to annoy Ms. SmIth, IS not Important. The fact IS that he chose to mclude Mr McKmnon's name and by domg so placed Mr McKinnon potentIally m the pOSItIon of having a real rumour about mm runmng rampant through the InstitutIOn the message of wmch was that Mr McKinnon had committed adultery with one of hIS co-workers. The rumour did CIrculate for a considerable tIme throughout the Institution and Mr McKInnon, understandably was concerned about how he was gomg to explain that to his wife and about how he would be perceIved m the workplace. The Board has determined that the presence of this rum our in the workplace created a poisoned work environment for Mr McKinnon and that it constituted a course of vexatious comment that is known or ought reasonably to be known to be unwelcome. The Grievance of Mr. McKinnon Naming Management, other than Mr. Melville Mr McKInnon participated in Meetmg # 2 With Mr COWIe, and the next day, Apnl 7th, filed a formal complamt WIth the Independent InvestigatIOn Umt, accordmg to Mr Trivett's report. It is dIfficult to understand why Mr Cowie was not mformed of hIS prompt filing. Mr McKinnon understood from Mr Cowie, that the matter was bemg dealt With, handled by the Supenntendent. A month later, on May 7, 1993, Mr McKInnon was mterviewed for an hour or so by Mr Tnvett, and sometime after that date, It appears, he was mformed that hIS allegatIOns of "harassment by the respondent, the supenntendent and another manager [dId] not fall wIthm the grounds of the WDHP policy" Mr Tnvett dId not offer reasons for this conclUSIOn m hIS report, nor m Ius testImony, although he dId testify that the mandate ofthe LI.U was "to investigate complamts of sexual ImpropnetIes" Mr Tnvett stated that Mr McKinnon "had a complaint he addressed with [hIm] about Mr Melville and the rumour Mr MelvIlle was alleged to have brought up, 134 concernmg circumstances between Mr McKinnon and Ms SmIth" If he viewed the mandate in thIS way, It is possible that he concluded that a rumour allegmg sexual impropriety on the part of a complainant, was not sufficiently dIrect to fall wIthm the mandate. On May 12th, Mr McKInnon attended Meetmg # 9, five days after meeting With Mr Trivett. The meeting was held at hIS request. Mr McKmnon denved no satisfaction from thIS meeting. Mr McKmnon then wrote to WDHP mforming Ms. Kozarov that he wanted to transfer complamts from September 17, 1992, mcludIng hIS complamts about Ms. Doherty and Mr MelvIlle, to the !.I.U It may be that Mr McKmnon had not, at that time, been mformed that his latest allegation did not fall wIthm the grounds ofWDHP policy and that the I.I.U did not believe it had the mandate to look mto It. In any event, that route closed to hIm, Mr McKinnon filed his grievance a week later The Imtial heanng date was December 18, 1994 Mr Cowie became aware of the eXIstence of the Mr MelvIlle's story of the rumour on AprilS, 1993, during the Meetmg # 1 He became aware of It as a rumour the following day during Meetmg # 2. Accordmg to Mr COWIe, he regularly kept Ms. Doherty bnefed on this matter Mr Cowie testIfied that he beheved It was reasonable to carry out a small dIscreet InvestIgatIOn, as opposed to a broadly-based one, behevmg that the latter would result in the rumour being spread even further The Board belIeves that Mr Cowie's declSlon not to go for a broader inquiry was reasonable, gIven the senSItIVIty of the Issue. Mr COWIe also was of the opmIOn that making announcements about It would have the same effect. The Board acknowledges that an announcement might mdeed have spread the rumour further However, It beheves that It was more Important for Management to let It be known clearly to all staff, that It would not tolerate the disseminatIOn of thIS rumour m the workplace, and therefore, the nsk was a reasonable one. One of the problems With Semor Management not makmg any kind of statement, be It wrItten or verbal, IS that there IS then a perception amongst staff that Management IS prepared to tolerate rumours whIch are a slur on the pnvate hves of ItS employees and the result can be a pOIsoned work environment. A SImple statement could have been Issued, preferably jointly by 135 Management and the Umon. They would both then have been seen to have made clear theIr disapproval of rumours m the work place ThIs could have been done wIthout a determination as to the source of the rumour or Mr Melville's role at the time. Mr CowIe completed and presented hIs report on the IncIdent, a report whIch the Board accepts as accurate, and sent It to Ms. Doherty Shortly after, Ms. Doherty indIcated that since the I.I U was now involved, all actiVIty concernIng thIS matter should cease. Mr Cowie had been dIrected by her to take no actIOn. Ms. Doherty testIfied that she was aware that Mr McKInnon was obJecting to the allegatIOn that had been made about 111m. However, there was no eVIdence of further actIOn by Management with respect to Mr McKmnon's complaInt about thIS rumour, With the exception of a meetmg held m May 1993 (Meetmg # 10) attended by Ms. Doherty, Mr Stockwood and Mr McKmnon. Ms. Doherty dId not recall this meetmg. A review of the correspondence between Mr COWIe and Ms Doherty and the viva voce evidence reveals that Mr McKmnon's complamt seemed to have taken a back seat to Ms. SmIth's, and eventually SImply faded away On Apn127, 1993, Mr Cowie wrote to Ms. Doherty and referred to the meetIng of Apnl 6, 1993 as a meetIng requested by Ms. SmIth, when in fact It was requested by Mr McKinnon. He then referred to Mr McKmnon among those "also present" He did, however, state clearly that both "may be contemplatIng complaints. " and he outlIned the mformation provided to both. He concluded by notIng that both, planned to filed formal complamts. (The subJect of the memorandum was HARASSMENT - MS L SMITH, as was the subject of Ms. Doherty's return memorandum.) In thIS memorandum there was no reference whatsoever to Mr McKInnon. On May 4, 1993, Ms. Doherty wrote to Mr Cooley, the RegIOnal Manager, respectmg the mandatory medIcal authOrIZatIOn for Mr MelvIlle, and referred to Ms. SmIth's IntentIon to proceed WIth a formal complamt, but no mentIOn ofMr McKInnon's IntentIOn. That same day she responded to Mr COWIe's report and referred, once agaIn, to Ms. SmIth alone, WIth no mentIOn of Mr McKmnon. In hIS final memorandum to Ms. Doherty on this matter, Mr COWIe referred to Mr McKInnon's haVIng filed a formal complaint and referred as well to "a meetIng between the complamants and respondent" Ms Doherty testIfied In cross- 136 eXamInatIon that she dId not make any contact wIth Mr McKmnon either before or after Mr CowIe's report was sent to her, notIng that he was off work and that she dId not beheve that she needed to communIcate WIth hIm, SInce the !.I U would have done so It is the finding of the Board that Ms. Doherty failed to deal directly with Mr McKinnon's complaint, and further, there was no evidence that she instructed othe'r members of Management to respond to it in order to effect a resolution of the matter and to attempt to provide a workplace free of vexatious comment for Mr McKinnon. 137 REMEDY The Union asks the Board to order the Employer .to dIsmISS Mr MelvIlle in order that Ms. SmIth and Mr McKmnon can be assured of theIr nghts to function m the workplace free of sexual harassment. The Union mamtams that Mr MelvIlle has demonstrated uneqUIvocally that he is unfit to be a manager m the OntarIO PublIc ServICe. Mr BenedIct asks that the grievances be dIsmIssed. Two deCISIOns of the Gnevance Settlement Board (Courtenay and Howe, Dalton, Loach) both mvolving this Mimstry, have concluded that the Board does have the jurisdiction to order the Employer to take the necessary steps up to and includmg dismIssal to ensure an harassment and dIscriminatIOn-free workplace. The Board accepts that it does not have the jurisdiction to order diSCiplIne of Mr MelVIlle, and the maJority of the Board accepts that It does have the jurIsdictIOn to order hIS transfer or dISmISsal. Brian Melville After a thorough review of the eVIdence, the Board has come to the decision that It Will not exerCIse Its jurIsdIctIOn to dismISS or transfer Mr MelvIlle. In amving at tills declSlon, it has taken mto account the degree of the severity of the harassment, the fact that Mr MelVIlle dId not playa part m spreadmg the rumour throughout the InstitutIOn and that there was no evidence of hIS havmg harassed Ms. SmIth or Mr McKmnon smce that mCIdent. Further, he has not attempted to make contact WIth Ms. SmIth SInce Apnl3, 1993 However, the Board WIshes to make It clear, partIcularly to Mr Melville, that It considers hIS conduct on Apnl 3, 1993 hIghly inappropnate and the degree of ItS mappropnateness greater because he IS a manager The Board has also concluded that Mr MelvIlle has not made a smooth 138 transItIOn from bemg a correctIOnal officer to becoming an operatIonal manager Mr MelvIlle needs to understand that once he becomes a manager, hIS relatIOnshIp with correctional officers changes, and that includes those With whom he has a social relatIonship Further, the Board believes that Mr Melville's theoretical understandmg and his abilIty to ensure a workplace free of harassment and dIscnmmation is lackmg. From his testimony, It appears to the Board that the WDHP training seSSIOns Mr Melville has attended have been inadequate to ensure that he understands hIS role as a manager to provIde a workplace free of harassment and discriminatIOn, and what that means m practice An important part of that role is se;tting a positive example for correctIOnal officers. The Board notes that the only eVIdence that Mr MelvIlle had his dnnkmg under control on a frequency and quantity basis, was ms own, and that evidence was lackmg In specificity The Board is not convmced that Mr Melville has addressed this problem adequately To answer these concerns, the Board is ordenng the follOWing. . The Employer is to satisfy itself that Mr Melville, as an OM 16, IS willing, ready, and able to do hIS part, to ensure that the workplace is free of harassment and discrimination. The Board does not believe that havmg Mr MelVIlle attend certaIn courses is a measure of that smce few If any of these courses offer any evaluatIOn mechanism . Mr Melville IS not to supervise directly either Ms. Smith or Mr McKinnon for a period of two years following Ms. SmIth's return to work, and in the case ofMr McKinnon, two years after the date of the issuance of this declSlon. . The Employer is to ensure that Mr MelvIlle fulfills the commItments that he made m 1993 and prOVIdes the Employer with up-to-date documentatIOn to confirm that he has done so At that time, he committed hImself to an assessment by ms famhly physiCIan WIth respect to his alcohol consumption and its effects, as well as an assessment and ongoIng treatment by the Addiction Research FoundatIOn, If It was deemed appropnate by them. 139 MichaelMcKinnoD Mr McKmnon had asked that he be reImbursed for any SICk tIme used for stress and anxIety smce the date of these events and that he be placed on paid leave for a period of one month to allow hIm tIme to work on reducmg hIS stress level. The Board has concluded that the following remedy is appropriate In the case of Mr McKInnon . The Employer IS to facIhtate and grant Mr McKmnon the tIme from work commencing wIthin a three month penod and over a penod of no more than SIX months, from the Issuance of thIS deCISIon, m order that he may attend stress management traIning sessions, should he WIsh to do so It IS recommended that thIS be done through the Employee AssIstance Program. If thIS is not avaIlable through the EAP, or there IS a cost related to tills programme through the EAP, the Employer IS to fund thIS cost on presentatIOn of a receipt. Lynn Smith The medIcal evidence was from three sources, Dr Barron and Dr HumphrIes who testified, and Dr Erlich who submItted a report but dId not testify In September 1993, Dr Erlich wrote the following. I feel she should not be under the direct supervision of the officer against whom she laid a complaint. She may return to work immediately In June 1994, he wrote The above is still under treatment..., secondary to events which caused harassment at work. In Apnl 1995, Dr Barron wrote to the Umon Counsel, respondmg to a request for a medIcal/legal report: Mr Melville telephoned her at home and proposed coming over which she strongly refused. From that time she stated that he began to harass her at work, making life uncomfortable for her, and beginning to spread stories about her being involved sexually with another male co-worker, Michael McKinnon. [Emphasis added] Mr Melville did not seem to have been dIsciplined in any way, and in fact was promoted from sergeant to lieutenant. In that context, according to Ms. Smith, he continued to harass the patient through 140 frequent telephone contacts relaying or giving orders for her to do work which was apparently not really essential. [Emphasis added] She had not, however, felt herself to be previously supported at work and was increasingly unsure that she would be able to carry on with her duties because of emotional upset. At this time, however, it would not be possible for her to go back to her previous job where she would apparently continue in contact with Mr Melville, the focus of her upset, as noted above. I do not believe she is ever going to be able to work again in contact with Mr Melville. To move her back to that situation would likely caUSe further deterioration in her mental health and certamly aggravate her ongomg stress and depression. Putting her back into that work environment would likely undo all the months of effort that we and she have put into her therapy to this point. [Emphasis addeed} In December 1995, Dr Barron testified. If you have been mugged by someone it is difficult to work with them, if you have been harassed, it is difficult to work in proximity to that individual without stress. He stated that one of the Issues for Ms. SmIth related to problems in her work situatIOn, and that she was upset about that, about what had happened and about the lack of support she felt from the Administration,. .she was angry about her frustration at the situation in the workplace and at the slow resolution of the problems and the fact she was still being exposed to difficulties a considerable time after the situation had started to evolve. He also testified That the reason for her being anxious about going into work was that she thought she would come into contact with the person who had harassed her and thought that would be uncomfortable, and additionally a number of the staff were rejecting her and she found that difficult. In June 1996, Dr ErlIch wrote to Umon Counsel Hyperthyroidism is often tnffered by stress This is probably related to the harassment suit. The Board has carefully conSIdered the medIcal eVIdence m relatIOn to the eVIdence as a whole It has concluded that Dr Barron was under the ImpressIon that Mr Melville was contmumg to harass Ms. SmIth followmg Apnl 3, 1993 The eVIdence does not, In spIte of Ms. SmIth's VIew of hIS actIOns m the workplace, support thIS Both Dr Barron and Dr ErlIch referred to the 141 Impact ofthe lack of resolutIOn for Ms. SmIth, and the Board IS of the opmIOn that the drawn out process and the lack of an early resolutIOn of thIS matter was mdeed stressful for Ms. SmIth and it was thIs, rather than the mCIdent Itself whIch had the greater Impact on her physIcal and mental health. Indeed, It has been four years smce the ongmal mCIdent. Because the matter was not resolved to her satisfactIOn, she was unable to put It behmd her and she early on developed anxIeties related to this. Further, the Board beheves that Ms. SmIth holds Mr Melville, in particular, and the Employer, m general, responsible for most of the physical and mental problems WhICh she has had over the past four years. The Board IS of the view that they are only partIally responsible Ms. SmIth did not work for two penods of time The first wa~ a penod of five months m 1993 which began ten days after the inCIdent dunng a penod when she was not bemg accommodated, the second was a penod of approxImately 33 months begmmng m June 1994 wmch began approximately SIX weeks after her control-room accommodatIOn ended and dunng the penod when she was bemg accommodated on a modIfied schedule whIch was to contmue for several more weeks. She receIved short-term benefits and long term mcome protectIOn dunng this tIme. As a short-term benefit reCIpIent, she would have receIved her regular salary for the first SIX days working days and 75% of her regular salary for an addItIonal 124 workmg days. As a benefiCIary oflong term mcome protectIOn, she would receIved 66 2/3% of her gross salary at the date of her dIsabIhty The Umon IS askmg that she be reImbursed WIth wages, benefits and out-of-pocket expenses related to thIS matter The Board does not have the JunsdIctIOn to mete out pumshment to Mr MelvIlle, it can however, order the Employer to take certam steps m order to prOVIde an harassment-free workplace for Ms. SmIth. It has concluded earlIer that Mr MelVIlle's presence m the workplace at the same time as Ms SmIth, does not constItute harassment. It has further determmed that mmimal contact m the course of Ms. SmIth and Mr MelvIlle carrymg out the dutIes and responsibIlItIes of theIr respectIve pOSItIOns, would not constItute harassment, provIdmg that the contact IS courteous and profeSSIOnal It IS also aware that for Ms. SmIth, at the present time, the 142 . anxIety WhIle complete IsolatIOn may be called for m some cases, m thIS case, the Board does not belIeve the Employer needs to provIde complete IsolatIOn of Ms. SmIth from Mr Melville in order to provIde an harassment-free workplace. Ms. SmIth mdIcated that she Wished to return to the workplace, and Dr Barron testified that her return, whIle not necessarIly wIthout dIfficultIes, was, m hIS opmIOn, Important to her The medical eVIdence from the two physiCIans with whom she had contact, varIed depending on the time at whIch it was gIven. It IS the observation of the members of the Panel, that Ms. Smith gamed in strength and confidence over the duration of the hearing and they believe that the time has come for her to put this inCIdent behmd her and regam control of her lIfe. This deCISIon has, m effect, valIdated her complamt. The Panel members are of the opImon that she should be able to return to the workplace with the followmg supports and restrictIOns. . The Employer IS to asSIgn a member of Management to oversee Ms. Smith's return to work and the two-year restnctIOn period. Ms. Smith is to dIrect any problems which she encounters relevant to this matter to thIS person. It is to be the role of this person to attempt a resolution and the role of Ms. Smith to co-operate m that resolution attempt. . Mr Melville IS not to contact Ms. SmIth outSIde of the workplace for a two year penod followmg her return to work. In order for Mr Melville to respect tills restnctIOn, Ms. SmIth IS also ordered not to contact Mr MelvIlle outside of the workplace for a two-year period follOWing her return to work. . There IS to be no dIrect supervisIOn by Mr MelvIlle of Ms. SmIth for two years from the date of her return to work. . Contact m the workplace between Mr MelvIlle and Ms. SmIth IS to be mmImal and only that which IS necessary to the carrying out of theIr respective dutIes and responsibilIties. . The Employer IS to be responsible for the fundmg, If fundmg IS necessary, of a psychologIst of Ms. SmIth's choosmg who IS aVailable followmg the issuance of this declSlon, for a period of no more than a year This profeSSIOnal's role wIll be to prOVIde the psychologICal support whIch the Board belIeves that Ms. SmIth reqUIres m order to manage her return to work. The other purpose of mvolvmg thIS professIOnal IS to assist Ms. SmIth to put thIS matter behmd her Should It be necessary for thIS person to I 143 i , f Ms. SmIth to put thIS matter behmd her Should It be necessary for thIS person to accompany Ms. SmIth to the workplace on several occaSIOns, the Employer should be receptIve to that wIthm reasonable secunty restnctIons. . Based on the partIal responsibIlity of the Employer for Ms. SmIth's mental and physIcal condItion, the Board orders the Employer to pay to her a sum equal to 50% of the difference between the compensatIOn she receIved through the benefit plan and the regular salary she would have receIved durmg her InItial absence of five months. Mr. Melville and Mr--McKinnon The Board IS concerned about the ongomg conflIct between Mr MelVIlle and Mr McKmnon. Ms. Doherty described It as a "nvalry" In the Board's OpInIOn thIS IS a euphemIsm and m reality what exists withm the Metro East DetentIOn Centre IS a senous, mgramed conflict between two employees. The conflIct IS siphomng off energy from these two mdIvIduals as well as others mto negative tmnkmg, comment and conduct. The conflIct IS, m the OpInIOn of the Board, a negatIve influence m the workplace whIch IS senously affectmg morale and effiCIency, and the conflict needs to be addressed as a discrete Issue. The Board recommends to both the Employer and the Urn on, that they conSIder obtaImng the servIces of a mediator experienced in dealing with personal conflIcts to work with Mr MelvIlle and Mr McKInnon to reduce or elImmate the conflict between them and to assist them m dlrectmg theIr energIes more pOSItively The Board WIshes to thank Mr BenedIct and Mr Wnght for theIr patIent and co-operative handlmg of thIS unhappy SItuatIOn. The Board wIll remam seIzed of thIS matter m the event that the parties have dIfficulty m Implementmg the deCISIOn. 144 Dated at Kmgston, OntarIO ~ this K day of Apnl, 1997 H.S Fmley, VIce-chaIr - J-C LanIel, Member ~LJ~tY M. Milich, Member 145 Addendum There is no doubt that , concur with the result in this decision. However, I feel that t must point out that I continue to hold the belief expressed in my dissent in - Howe, Dalton, loach that the Board does not have the junsdiction to order the - -_. transfer or dismissal of a manager or supervisor , Mi~t'~Mt. 'Q ( r/(;A{.. t. -/ .;" /- .-. _.....- ~~~... ---'- .:. - = =:"'=-~s:.;::::~.~~~~ _....~........... '- --.. - .---_..- - .......-... --- -. __ _ - ~_ - "T' --'_-"'~-=- ~ --_._- - --...-.... -- -.. --.....--. --.-.. - ---- -- -- --.;...- -- -~--- - - - _...........- _. .-'-- - .- - --- .---.........----"- -- .- -,-'