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HomeMy WebLinkAbout1994-0613NAUMENKO97_10_21 OWTARJO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'OWTARIO GRIEVANCE COMMISSION DE 1111 SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONEITELEPHONE (416) 32tJ-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG 1ZB FACS/MILEITELECOPIE (41tJ) 326-1396 GSB # 613/94 OPSEU # 94A908 IN THE MATTER OF AN ARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Naumenko) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE: L Mikus Vice-Chair M. Lyons Member P J Poole Member FOR THE A Ryder GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE M Mously EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctional Services FOR THE L Roslyn THIRD PARTY Barrister & Solicitor HEARING February 5, 6, 1996 January 15, 16, 1997 In thls gnevance, the gnevor Ms. Vicki Naumenko complams that there has been a ViolatIOn of Article 27 10 of the Collective Agreement which reads as follows 2701 Sexual Harassment Att employees covered by this agreement have a right to freedom from harassment in the work place because of sex bv his or her Employer or agent of the Employer or by another Employee. Harassment means engagIng in a course of vexatious comment or conduct that IS known or reasonably to be known unwelcome. 27 10.2 Every employee covered by this Collective Agreement 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 Employee where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or (b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant, or deny a benefit or advancement to the Employee. The remedlal claims of the Umon were set out m a letter to Dr Howitt from Mr Ryder, counsel for the Umon, as follows I A declaratIOn that the grievor's rights under Article 27 10 of the CottectIve Agreement between Management Board CabInet and the Ontario Public Service Employees' Umon have been violated and that the employer IS In breach of ItS obligatIOn to take reasonable steps to address the violation and provIde protection against such violatIOns. 2 A direction requiring the employer to take such reasonable steps as may be necessary In the opmion of the Board to effect compliance with the requirements of ArtIcle 27 10 of the Collective Agreement. These could mclude dlsclphne agamst yourself up to and includmg dismissal. the requirement to take counsellIng, the reqUIrement to place you under suspensIOn until a detennmatlOn has been made by a quahfied medical profeSSIOnal that you apprecIate the senousness of your conduct and will not likely engage in a repetttion of It and such other dIrectIves as may be Imposed by the Board in order to ensure that the reqUIrements of the Article are met. The gnevor is a correctIOnal officer at the Cecil Facer Youth Centre (heremafter referred to as C.F Y C). Dr Howitt IS employed by the C.F Y C as a psychologist. He IS directly responsible for two psychometnsts and the staff of the Centre are reqUIred to meet With him to diSCUSS problems With mmates. He IS also responsible for the profeSSIOnal debnefing of staff and acts as staff 1 I 2 counsellor wIth regards to dIfficult Inmates. Smce there IS very lIttle dIspute about the facts gIvmg nse to thIS complamt, and smce Dr Howitt has confessed to having acted mappropriately towards the gnevor, the facts are probably best explamed m a note she made mvolvmg the mCIdent on the night of January 4t 1993 Her note reads as follows. 1830/40 - Saw Dr HOWItt by program - asked to speak to him and he stated that he would like to talk to me too (MIke Bede present). - Went to hIS Office; I sat m vmyl chaIr--Dr HOWItt shut the door (did not SIt behmd hIS desk), sat m chair m front of me and in front of door - I spoke about _ wanting to come to Cot 1 after he was sentenced Dr HOWItt agreed. Dr HOWItt spoke about C's vISit with hIS father D there was silence. I commented about the pIctures m hIS office that Dr HOWItt's son drew - I then SaId that: "I guess that's about It" and asked hIm want (sic) he wanted to talk to me about. - He said that he Just wanted to wIsh me a Happy New Year - I shook his hand and leaned to gIve hIm a kISS. - He grabbed me, kIssed me wIth hIS anus around me forcibly pullmg me mto hIm. - I stood on my tip toes pullIng my body away from hIm and trying to push away from hIm wIth my hand--he held me tight and wouldn't let go and kIssed me agam--he was very senous and not smIlmg, I was scared. - I looked at my watch from over hIS shoulder and Said that "I have to go " - He let me go and I left hIS Office wIthout looking at hIm and I told him to "have a good ShIft. " - I went to the S/S Office to get my Knapsack - B Bryson, M. Bede (plus I thmk someone else was there) -- I was upset plus stated somethmg to the effect that "that was very weIrd." - I got my bag and went to the SIde kItchen doors (I dIdn't even sign m for work) - I radIoed Control to Open the door S Lauzon was gomg to Cot 1 at the same time - I told him a few tImes that "I Just had a weIrd expenence" but I wouldn't tell hIm what. - between 19 00 to 19 30 hours. - Phoned COOS MIlls plus left a message on her answenng machme "help call me back, I had a bad expenence WIth Dr HOWItt" - around 22 '00 hours. - Chns Mills phoned back, her father heard my message and called Coos to call me - I told her what happened 3 - around 22 15 hours. - Mr MIlls phoned plus talked to me, I crIed. - Mr Mills told me that I should document everythmg plus that If! want the polIce mvolved to call hIm tomorrow - He also told me to talk to B Bryson In the mom mg. - Around 23 00 hours. - I spoke to Steve Lauzon and told hIm why I was upset when I came into work and why I was upset on the phone. At the time of the mCIdent, she was content to file an mformal complamt about Dr HOWItt, but in November of the same year, some eleven months after the inCIdent, changed her mmd and lodged a formal complaint under the Workplace DIscnmmatIOn Harassment PreventIOn PolIcy (WDHPP). The reasons for her change of heart are best explamed m her letter of November 2, 1993, to Ms. Brenda Kunkel. In regards to our phone conversatIOn on Tuesday, October 28th, 1993, I would like to submIt a Formal Complamt under the work place discrImmatIOn/harassment polley Please refer to the attached four pages dated January 4th, 1993, describmg the mCIdent I was mvolved m. For clanficatIOn of thIS report; Dr Howitt IS a psychologIst at CecIl Facer Youth Centre (C.F Y C ), Mike Bede, Steve Lauzen, Chns MIlls and myself are correctIOnal officers at C F Y C , Mr Bob Bryson IS a shift supervIsor at C.F Y C , and, Mr Malcolm Mills IS a staff sergeant for the Sudbury Regional Pollee Department. On January 4th, 1993, I worked the mght ShIft, 19 00 to 0700 hours WIth Steve Lauzen. I cned and had a nose bleed for the maJonty of the mght. At 07.00 hr, I went to the ShIft SupervISOry Office and gave Mr Bryson my four-page account to read because I couldn't stop crymg long enough to explain. Mr Bryson drove me home and stayed WIth me for approXImately one and one-half hours explammg to me my optIOns and to ensure that I was okay I dId express to Mr Bryson on the way home, that If my personal SItuatIOn was dIfferent I would proceed formally but at the present tlme could not handle the added stress of that. My mother was m the HospItal December 30th, 1992 (she remamed there, m and out of mtensIve care, untd May, 1993) and a long term relatIOnshIp I was m had ended. 4 Mr Bryson later met with and showed my report to Ms. Humphries (Deputy Supervisor) and Ms. Nicholls (Supenntendent). Ms. Nicholls phoned me at home and I told her that I wanted Dr HOWItt confronted and mformed of how scared and upset he had made me. I expressed my concern of him seemg the resIdents (male and female) that he counsels 10 hIS office, sometImes at very late hours dunng the mght. His office is located down a hall way that is isolated after Office Hours and, on occasIOn (sic), the mdlvldual resident seeing him are donned 10 pyjamas and housecoats (due to the hour ofmght) Ms. NIcholls phoned me again on January 5th, 1993 saying that she and Ms. Humphnes had met WIth Dr Howitt. He dId not deny the inCIdent but stated that It was a "Season's Greeting", not meant to upset me and that he wanted to apologIze. I stated that I was not ready for tlus and have not since spoken to hIm. Ms. Nicholls mformed me that an Informal Document would be sent to the malO office on thIS matter and kept on file. I expressed my concern for thIS mCIdent to be documented, that If it occurred agam to someone else, It would be on file. She also told me that all the soltd wood doors down that hall way would have wmdows put 10 for secunty/safety reasons (thiS has yet to happen) I was still very upset and Ms. Nicholls adVIsed me not to come 10 for my mght shift (Jan. 5/93). However, I later had to apply for a DIscretIonary Leave day to cover the ShIft. Smce thIS inCIdent, Mr Lauzen and myself have met WIth Ms. Humphnes and Mr Mala (Deputy Supenntendent) 10 September 1993, to mqUIre as to why the wmdows have yet to be mstalled 10 the sohd doors. I have also been attempt 109 to reach Ms Momca Campbell to ensure that there was 10deed a document on file 10 regards to my complamt. Ms. HumphrIes stated dunng thIS meet 109 that the file was sent to Ms. Campbell. Dunng the month of October I have heard rumours that other female workers at C F Y C, the General HospItal and Bayfield Group Home have expenenced mappropnate encounters With Dr HOWItt. On October 22nd and 27th I spoke WIth PattI SmIth (SOCial Worker at C.F Y C ) who were mvolved 10 these rumours and they confirmed these rumours to be true. After speaking With you on October 28th, 1993, my deCISIOn to proceed WIth thIS complamt Formally IS based on my beltef that Dr HOWItt has to stop his unprofeSSIOnal and mappropnate actIOns towards women 10 the work place. I have also 1Oformed Mr Makl, (Deputy Supenntendent) of my declSlon. Smcerely, Vlctona Naumenko 5 cc. Mr M Mills (Sud. Reg. PolIce Dept.) Note' I have not yet contacted the second woman, en (SIC) as she IS no longer employed at C.F Y C. thus am not yet able to release her name. As a result of her formal complamt she receIved a letter dated February 21, 1994 from Ms. Lenna Bradburn, Manager of the Independent InvestigatIOns Unit (IIU) whIch included a copy of the draft investigatIOn report. That report concluded that, given the fact that the respondent had acknowledged hIS inappropnate conduct towards the grievor, her complamt of sexual harassment had been substantIated. The report also dealt wIth two other WItnesses who described SImIlar encounters WIth Dr HowItt. In both cases the lIU found that theIr allegatIOns had been SubstantIated. Ultimately that report was released unamended to Michelle Noble, Deputy Mimster on Apnl 21 st, 1994 The Umon took the posItion that ArtIcle 27 10 reqUires that management provIde a harassment-free work place. By accepting the lIU report, the Employer acknowledged that the inCIdent had occurred as described by the gnevor The Umon IS seekmg a declaratIOn that the gnevor was subjected to sexual harassment In the work place. The Issue In thIS case is the appropnate remedy The question IS what management should have done In order to comply wIth Its oblIgatIOns under ArtIcle 27 10 It was the Umon's posItion that the Employer was patently unresponSIve to the gnevor's concerns and for that reason the Union and the gnevor reqUire a declaration that It has breached ArtIcle 27 10 The Umon took the pOSItion that there has been a pattern of sexual harassment that the employer faIled to respond to appropnately and It IS seeking a declaratIOn to that effect. The Union also took the pOSItIOn that Dr HOWItt, even to the date of the hearing, does not appreCIate the SIgnificance of 6 hIS conduct. The proof of that is the fact that he continued to make sexual advances after the incIdent wIth the gnevor and after speakmg wIth the Supermtendent. GIven those CIrcumstances, the Umon takes the posItion that the only appropnate remedy in thIS case is that Dr HowItt be removed from the work place. It was Its posItion that his contmued presence IS a mockery of ArtIcle 2710 The Mimstry, on the other hand, takes the posItIOn that smce the mCldent gIvmg rIse to thIS gnevance, there has been no further occurrence of mappropnate behavIOur between Dr HowItt and the grievor Dr HOWItt Immediately offered to apologize and make amends. The grIevor refused to accept hIS apology It was the Employer's positIOn that It responded appropriately in the CIrcumstances. It conducted a full mvestIgatIOn and, after a findmg that the gnevor's allegatIOns had been substantiated, conducted a dIscIplinary meetmg WIth Dr HOWItt. As a result he receIved a letter of repnmand. The Employer took the pOSItIOn that was an appropnate response and therefore It has complIed WIth ItS oblIgatIOns under the collectIve agreement. The MmIstry also took the pOSItIon that even if the Employer's response was msufficlent, thIS Board does not have the JunsdIctIOn to pumsh a non-bargammg umt member ThIS grievance concerns an mcident mvolvmg the gnevor and the remedy IS only relevant as It relates to the grievor Dr HOWItt was represented by Mr LeIghton Roslyn. He, on behalf of Dr HOWItt, took the pOSitIOn that the reference to mCldents mvolvmg the allegatIOns of two other women that formed part of the mvestIgatIOn report were not relevant to thIS gnevance. Although they were asked for statements dunng the mternal mvestlgatIOn, there were no complamts filed by them and It was mapproprIate 7 for thIS Board to consIder those Incidents. He took the posItIOn that Dr HowItt was remorseful and regretful Immediately after the act and attempted to apologize to the grievor Since the Incident he has taken courses and has gaIned an appreciation for the inappropnateness of lus actIons. He argued that this Board only has JurisdIction to deal wIth Dr HOWItt'S contInued presence In the work place If there IS no alternatIve remedy The Board cannot retaliate or pUnIsh Dr HOWItt for hIS actions but must be satIsfied that the only way the Employer can comply wIth ItS obhgatIOns Wlder the collective agreement is to remove Dr HowItt from the work place. It took the posItIOn that the grIevor was purSUIng thIS grIevance as an act of retributIOn. The gnevor, Victona Naumenko, began workmg m 1986 as an WlclassIfied correctIOnal officer She became a classIfied In March of that same year She described the CeCIl Facer Institute as a secure faclhty for YOWlg offenders. There are two phases to the mstltutIon, one for those aged 12 to 16 and the other for youths from ages 16 to 18 The offenses Include any offence under the Criminal Code, IncludIng armed robbery, murder and rape. She first met Dr HowItt In 1983 when she was a volunteer at the John Howard SOCIety At the tIme she had escorted a young offender to hIS office, wluch IS In a WIng of CFYC removed from the reSIdence WIngs. She deSCrIbed Dr Howitt's role In the InstItutIOn as IncludIng counsellIng reSIdents on an IndIVIdual basIS for SUICIde preventIOn, court reports and psychologIcal problems. He IS Involved In debrIefing the staff, partIcularly when an mCldent occurs between a reSIdent and the staff He teaches stress management and copmg skIlls to the correctIOnal officers and IS also Involved In counselhng staff under the EAP 8 After the mCIdent described above the grIevor testIfied that she shook for most of the mght. She sobbed uncontrollably and had a nosebleed for most of that mght as well. She was feeling sIck at the end of the ShIft and Mr Bryson drove her home and stayed wIth her untIl she settled down. He told her that he would contact Supenntendent Nicholls. They dIscussed the mCIdent and the gnevor told him that she wanted to proceed infonnally for personal reasons that have already been explamed. Supenntendent Nicholls called her later m the mornmg to tell her that she had spoken with Dr HOWItt, that he was sorry for the mCIdent and had suggested he send the gnevor flowers by way of an apology The gnevor explamed to Ms. Nicholls that she was concerned about the residents that Dr HOWItt mtervIewed, especIally dunng the mght ShIft when the offices m that wmg were empty They often came to hIS office m pyjamas and housecoats and she was concerned about theIr safety She requested that a wmdow be put m the door of Dr HOWItt'S office and that a letter be placed on hIS file outlmmg the mCIdent so that If there was another occurrence, appropnate actIon could be taken. She explamed to Ms. Nicholls how upset and threatened she felt as a result of the inCIdent. Ms. Nicholls told her that a wmdow would be placed m the door and that there would be a notatIOn on hIS file concernmg the mCIdent. By September no windows had been mstalled. The gnevor, wIth her Umon Steward, went to see Deputy Supenntendent MackIe and was told that there was no fundmg to comply wIth her request for a wmdow She began to wonder about whether a note had actually been placed on Dr HOWItt'S file. By that tIme she had heard rumours about the two other women who had allegedly been 9 harassed by Dr Howitt and approached one of them. After that discussIOn she detennmed at that tIme that her only recourse was to file a fonnal complamt. As a result of the mvestIgatlOn that followed she was advised that Dr Howitt would be dIsciplined and that there would be a note to that effect on his file. She, however, became very diSillUSioned with the process when no one would tell her what discIpline had been Imposed. Ultimately she did receive a copy of a letter of disclplme that had been placed on Dr HOWitt's file and was "flabbergasted and shocked" when she read It. She felt that It was more a letter of commendation than censure. That letter was dated June 20th, 1994, and reViewed the results of the WDHPP It then stated as follows I understand you explamed that m your View, your kisses were not sexual m nature and, that you charactenze your other comments/behavlOurs as thoughtless action on your part. You deny starmg at a female employee's chest. Mr O'Brien also adVIsed me that you have recently taken tramIng on the WDHP polIcy and are now aware that your actIons could be perceIved as offenSIve. You WIll continue to work closely WIth two of the employees WIthout further mCIdent and claIm you are determmed that thIS kmd of mcident wIll not happen agam. Havmg carefully conSIdered the facts m thiS case I concur WIth the findmgs of the Investigation report substantIatmg the complamts under the work place dlscnmmatlOn and harassment preventIon policy In assessmg the dlsclplme necessary m tills case, I have taken mto conSIderatIOn your excellent employment record of fifteen years of service I have also taken into account your assurances that you have learned from thIS expenence and, your expressIOn of regret that you may have embarrassed your female co-workers. I suggest that you commUnicate thiS regret to them. I have deCided to award a penalty of a letter of repnmand which will be placed on your personnel file I WIsh to make It clear to you Dr HOWitt that your behavIOur was unacceptable and must not be repeated. Any faIlure to adhere to the pnnclples of thiS polIcy at all tImes, Dr HOWItt, WIll result m further diSCIplinary actIon, up to and mcludIng dismIssal. That letter was signed by Michelle Noble, Deputy Sohcltor General and Deputy MinIster of 10 Correctional ServIces. Ms. Naumenko testIfied that as a result of the mcident she IS not as confident as she used to be m her personal or professlOnallife. She always expected that If there were to be any mcidents of a sexual harassment nature, they would come from the reSIdents, not a co-worker She developed a lack of trust and confidence m her partners. She began to questIon people's motives. She continues to deal WIth Dr Howitt on a professlOnal basIS but does so with as httle personal contact as possible. She IS very uncomfortable m his presence. Followmg the mCIdent she had mghtmares, headaches and trouble sleepmg. Those symptoms recur whenever the mCIdent IS raised agam. She was asked m cross-exammatIOn why her remedy changed from the tIme of the mItIal inCIdent to the filing of the gnevance and agam as of the date of heanng. ImtIally she was content to have a letter put on Dr HOWItt's file. Subsequently she filed a gnevance asking for a declaratIOn that her nght to a harassment-free work place had been mfrmged. Subsequently her remedy has been expanded to mclude a request that Dr HOWItt be removed from the work force. Her explanatiOn for her change m pOSItion was that at the time of the mCIdent, and for some tIme followmg, she was under conSIderable personal stress and felt unable to take on another "fight" Since that time her personal CIrcumstances have Improved. As well, m the mterval, she dIscovered that the letter of censure she expected to be placed on Dr HOWItt's file was less a letter of censure and, m her VIew, more one of commendatIOn. Although she acknowledged that she expected all relevant factors would be taken mto conSIderatIOn In determmmg the appropnate dIscIphne, she dId not charactenze the references to Dr HOWItt's long serVIce and good record to be mitIgatmg factors. She 11 acknowledged as well that she had filed a complamt with Dr HowItt's professIOnal organIzatIOn. She wrote a letter dated January 21, 1995, to the College of Psychologists of OntarIO She set out the detaIls of the mCldent as well as a hIStOry of her efforts to deal WIth her complamt. She adVIsed them that she had filed a gnevance under the collective agreement and for that reason had been adVIsed by the Human Rights ConuTIlssion that they would not act on her complamt. She concluded by saymg "thus, the purpose of thIS report/complamt IS to mform the College's Complamts CommIttee of the profeSSIOnal mIsconduct of one of its members." She was asked directly whether, If she was dIssatIsfied WIth the results of thIS hearing, she mtended to proceed WIth cnmmal actIOn agamst Dr HOWItt. She stated that the only reason Sergeant Mills had become mvolved m the case was because he had overheard the message left for his daughter He was concerned and told the gnevor that he would keep her complamt on file m the event that she should want to proceed WIth It. In response to a dIrect questIOn about her future mtentIOns she saId "I haven't ruled It out." Dr HOWItt testIfied on hIS own behalf He IS fifty-one years old and began workmg at CFYC m 1979 He is the ChIef PsychologISt. His dutIes are to perform a vanety of treatments with reSIdents mcludmg counsellmg and assessment. He supervIses two psychometnsts. As well he has a pnvate practIce He described the gnevor as a pOSItIve and fnendly person who mteracted appropnately WIth the reSIdents. He acknowledged that he dId kiss the gnevor tWIce but was shocked when Ms. NIcholls told hIm about her reactIOn. On hIS part It was SImply an expressIOn of gratItude for the way she had handled a reSIdent and a seasons greetmg. There was no sexual connotatIOn to It. He referred to a letter dated May 7, 1994, whIch he wrote to the IID regardmg the gnevor's complamt. In It he stated that when he became aware of the gnevor's reaction, hIS first response was to 12 apologIze. He said. As I saId I have known Vicky for many years, socIalIzed mfrequently wIth our respectIve partners at bona fide events and were familIar wIth one another My "kIssmg" V Icky reflected my appreCIatIOn of her efforts, my fnendshIp for her and my feelmgs of solIdanty I never meant the gesture to have sexual sIgmficance. Havmg attended a WDHP work shop I appreciate the fact that thIS behaVIOur IS not appropnate and I certamly won't do that agam. In the letter he expressed simIlar surpnse and hurt at the comments made by the other WItnesses named m the complamt and went on to state' I have always had a "good" relatIonslup WIth management and correctIOnal officers. I de-bnefed a correctIOnal officer who was almost taken hostage at Monteith and assaulted m the process. I also dId stress management with a guard from the Parry Sound Jail. I dId, on yet another occasIOn, asSISt management with a very dIfficult case in whIch a young offender claImed to have been touched mappropnately by a correctional officer I was asked to do so by admmIstratIon at CeCIl Facer Youth Centre Subsequent to this effort there was a feeling amongst some correctIonal officers that management does not suffer the consequences for theIr mIstakes. I feel that.!!l.12ill1 my present predIcament stems from thIS mCIdent. I also bebeve that on stIll another occaSIon when two of our cottage staff became mvolved m exceSSIve horse play WIth a young offender that my therapeutIc mvolvement may have been mIsmterpreted by other correctIonal officers as SIdIng WIth management agamst them. In fact my mvolvement on thIS occaSIOn was a responsible actIon by management to deal WIth an extremely dIfficult SItuatIon. A subsequent reVIew of this matter by the advocacy office authentIcated my concerns and the concerns of semor management at CeCIl Facer Youth Centre. He apologIzed again and ask for the opportumty to make a "SIncere and face-to-face apology" He described hIS relatIOnshIp WIth the gnevor SInce the InCIdent as very straIned. He attempts to be polIte and pleasant to her but she refuses to acknowledge hIm except WIth a nod. His ImpreSSIOn IS that she purposely Ignores hIS presence. 13 As a result of the 10Cldent he attended a one-day work shop on discnmmatlOn and harassment tram10g m February of 1994 It was a mandatory course that also touched on pnvacy and confidentiality ISSUes. He said he had been provided wIth a sIgmficant amount of matenal The course 10cluded a review of the Ministry's pohcy regardmg a workplace free from dIscnm1Oation and harassment and a diSCUSSIOn of proactive measures to prevent dIscnmmatIon and harassment. From the work shop he learned that hIS behaviour was 1Oappropnate. He was asked about the references 10 hIS letter to the IIU regard10g bargammg umt emplovees. He described them agam and suggested that they played a part 10 the grievor's demand for full redress. In cross-exammation by Mr Ryder, Dr HOWItt acknowledged that in hIS response to the IIU, whIle admItt10g that he kissed the gnevor, he never mentIOned that It was on her lips. He Said he dId not appreciate that what he dId was wrong until the next day, after hIS dIScussIon With Ms. Nicholls. He Said "I felt sorry and because of the consequences It was wrong. I dIdn't mean to hurt her" He was asked whether his diScussIon With Ms. Nicholls expanded hIS understanding of what can constItute an unwanted advance. He replied that they discussed the 10CIdent and that he was more concerned WIth the fact that the gnevor was upset and unhappy When he was asked why hIS diSCUSSIOn with Ms. NIcholls dId not prevent a further unwanted advance to Ms. Smith, Dr HOWItt Said "I dId not conSIder It so" When It was suggested to hIm that hIS dIscussion With Ms. Nicholls did not prevent a second inCIdent he Said that the dISCUSSIon had made hIm aware of the gnevor's feelings and that "he dId not want It to happen agam" He stated however that he dId not know that hIS conduct towards the second WItness m the compla1Ot was an unwanted sexual advance. He was asked why . 14 he had made reference m hIS letter to the bargammg umt and whether he was questIoning the motIves of the gnevor He replIed that he thought those preVIOUS mCldents could have motIvated the gnevor and that she was seeking a repnsal OtherwIse he could not understand what motivated her to press on wIth her complamt after hIS apology Dr HOWItt was asked whether the trammg that he had taken subsequent to the mCldent added anythmg to hIS knowledge about sexual harassment. He said that the trammg had made hIm more cautIous about hIS behavIOur He thInks he now knows the dIfference between nght and wrong. The trammg emphasIzed the fact "I have to be careful and my sUbjectIve VIews have to take second to perceptIons." He also saId "I couldn't predIct what effect my behavIOur would have." He agreed that m hIS role at the CecIl Facer Youth Centre he has had occaSIOn to make Judgments as to whether the actIOns of a c.O towards a young offender were mappropnate, m partIcular the IncIdent referred to in his letter When asked whether It was Important for hIm to know what was inappropnate and the effect of mappropnate touchmg he saId "I dIdn't see what I dId as mappropnate at the tIme" When he was asked what made hIS inCIdent different from the InCIdent of the correctIOnal officer and the young offender, he SaId "I was not aware It would have that Impact. It was not meant as a sexual overture. " We were provIded WIth a college notIce WhIch mdlcated that Dr HOWItt had dlsclplmary actIOn taken agamst him. Mr Roslyn objected to the mtroductIOn of that eVIdence and we reserved on Its admISSIbIlIty Havmg reviewed the detaIls of that InCIdent we are of the VIew that It relates to a dIfferent matter and IS not relevant to these proceedmgs. , - 15 Ms. Nicholls was Supenntendent of the CFYC from 1987 to 1994, when she retIred. She became aware of the mCldent on the followmg day when Mr Bryson advised her that the gnevor was very distressed about sexual overtures she had received from Dr HOWItt the day before. Accordmg to procedure Ms. Nicholls called Monica Campbell, Sexual Harassment Manager, and notIfied her of the complamt. She then notified Ms. Rosemary Turner at the regIOnal office who was the female advIsor regardmg harassment Issues and gave her the mfonnatIOn. She called the gnevor and asked Deputy Supenntendent, Ms. COlmie HumphrIes, to act as a WItness to her conversatIOn. The gnevor was extremelv dIstressed dunng that call and Ms. Nicholls told her that she would mvestIgate further Ms. Nicholls reviewed varIOUS optIOns with her and explamed the mformal and formal processes aVailable to her She made It clear to the gnevor that she was prepared to deal wIth the Issue in eIther manner At the tIme the gnevor was adamant that she wanted to follow the mformal route. She was very clear that she wanted the mCIdent on record and wanted to make sure that Dr HOWItt knew how he had made her feel. At the time the gnevor dId not specIfically mentIOn puttmg wmdows m the doors or any formal discIpline against Dr Howitt. Ms. Nicholls offered her counsellmg but the gnevor was too stressed at the tIme to take advantage of It. After her telephone call wIth the gnevor Ms. Humphnes and Ms. Nicholls spoke to Dr Howitt. They explamed to hIm the senous allegatIons that had been made against hIm and asked for hIS recollectIOn of the prevIOus day He acknowledged that he had kissed the gnevor tWice but seemed completely surpnsed when he was adVIsed that she had felt very threatened by hIS actIOns. Dr HowItt expressed shock and offered to apologIze. He asked If It would help If he sent the gnevor flowers. Ms. Nicholls adVised hIm not to have any contact wIth the gnevor Ms. Nicholls told hIm that the mCldent was vIewed as an unwanted touchmg and that she would be completmg an offiCial form whIch would be placed I 16 on his record. Subsequent to her meetmg with Dr Howitt, Ms. Nicholls advised the gnevor that she had spoken to Dr Howitt, that he had admitted to kissmg her tWice, that he seemed very remorseful and wanted to make amends. The gnevor restated that she wanted to be absolutely certain this mCident went on his record and that Dr HOWItt knew how she felt about It. She repeated her concerns about further mCIdents and asked that a wmdow be placed m Dr HOWItt'S office door Agam Ms. Nicholls suggested counsellmg which the gnevor declmed. The form settmg out the mcident was forwarded to Ms. Campbell who advIsed Ms. Nicholls that her report would be placed on Dr HOWItt's record but would be confidential. She was unaware that the gnevor had made a formal complaint until the mvestIgators from the IID contacted her She was aware, however, that the gnevor was upset that nothmg had been done With respect to puttmg wmdows m the doors. She agreed that all of the offices should have windows. She stated that they were m the process of major renovatIOns, mcludmg replacmg the doors WIth steel doors and bullet proof glass. She advised the gnevor that she would try to get all doors m the clImcal wmg and admImstration buildmgs done first. However, due to budget constramts, she was unable to comply WIth the gnevor's request at the tIme. The gnevor was aware of the allegatIOns made by the other two witnesses m the WDHPP mvestIgatIOn. She had previOusly spoken to Ms. Smith, who asked her whether anythmg could be done m a hypothetIcal sItuatIon mvolvmg someone who had been charged WIth sexual harassment and then later found to have repeated hIS actIons WIth others. No names were mentIoned at the time and no formal complamt was made. Durmg the mvestIgatiOn Ms. Nicholls was one of the WItnesses ~. 17 named m the final report. She testified that Dr HOWItt had corne to her desk to wIsh her a happy hohday and had kIssed her She could not recall whether it was on the hps or the cheek and did not feel offended at the time. She was mvolved m the mCldent Dr HOWItt had referred to m hIS letter regardmg the mappropnate touchmg of a young offender by a C 0 As a result of that mvestIgatIOn and hIS report, two of the bargammg umt members were gIven 20-day suspenSIOns and a thIrd a 10 day suspenSIOn. She agreed that dunng that mvestlgatIOn they rehed on Dr HowItt'S mput in determmmg what constItuted mappropnate conduct. She beheved that Dr HowItt was aware of the fact that hIS behaviour toward the gnevor was mappropnate and said that she would not have expected hIm to be gUIlty of another mCldent. When she was asked whether she thought Dr Howitt had profited from hIS dISCUSSIOn wIth her regardmg the mcident of January 4, 1993, she rephed "I would guess not." Mr John O'Bnen was the RegIOnal DIrector of the eastern regIOn at the tIme ofthe mCldent. He was asked by the Deputy Mimster to make a recommendatIOn regardmg the appropnate dIsclphne, If any, Dr HOWItt should receIve He wrote a letter m May of 1994 to Dr HOWItt advlSlng hIm that he was m receipt of the mvestIgatIOn report and that, havmg reVIewed that report, he was satIsfied that there was eVIdence m support of the gnevor's complaint. To that end he adVIsed Dr HOWItt that he would be holdmg a hearmg WIth rum relatmg to that complamt and that he could bnng a lawyer or adVIsor to that meetmg. The meetmg was held m June of 1994 and Dr HOWItt came alone. They dIscussed the findmgs of the lID, mcludmg hIS reactIOn to the report, hIS work record and hIS . 18 explanation. Mr O'Bnen reviewed Dr Howitt's corporate file and spoke to Ms. Nicholls. He consulted with management to ensure the discIpline he was recommendmg was consIstent With other simIlar cases and wrote to the Deputy Minister summanzmg his findmgs. Ultimately he recommended that Dr HOWItt be repnmanded. In Mr O'BrIen's report to Ms. Noble, dated June 10th, 1994, he reviewed the complamts as set out m the IIU report and made the followmg conclUSIOns. .accordmg to Supenntendent, he has an excellent reputatIOn among hIS colleagues as a skilled, carmg, profeSSIOnal. She feels that these mCldents have arisen m part because of Dr Howitt's work With staff m personal cnsls at the mstItutlOn. Dr Howitt has apparently assIsted many staff during tImes of personal cnSlS and may, m fact, have become too familiar WIth staff as a result. Before our meetmg. Dr Howitt wrote to the IIU to explam his pOSitIOn on the allegatIOns. In the letter and at our meetmg he describes hImself as "a huggy sort of guy" who was not aware that hIS actIOns were offensIve to others. He deeply regrets any embarrassment whIch he may have caused hIS female co-workers. Dunng the meetmg he expressed hIS dIsappomtment that hIS actIOns were perceIved as sexual m nature and assured me that thIS was not the case. .He IS very concerned about the effect the allegatIOns and findings are havmg on lus famIly whIch he describes as a close supportIve famIly unit. It IS hIS contentIOn that the formal allegatIOn reflects a growmg nft between management and bargammg umt staff at the mstItutlOn. Dr Howitt belIeves that relationshIps at the mstltution have detenorated as staff have become more confrontatIOnal over the last few years. He feels that he has been strongly Identified WIth management and CIted a number of cases m the last several years where he has been perceIved by the Union as takmg management's SIde on Issues. He feels that the local Umon was mstrumental in ralSlng the mformal complamt WhICh had been resolved to the level of a formal mvestlgatlOn. Dr HOWItt admIts that on reflectIOn hIS actIOns were mappropnate ThIS was reemphaSIzed dunng hIS recent WHOP trammg at the mstltutlOn. His personal embarrassment over the allegatIons IS acute and he appears to be SIncere m hIS detemunatlOn that thIS behaVIOur WIll not happen agam. He contmues to work 8 19 directly with the psychometnst and the social worker without further mCldent and, accordmg to the supenntendent, has a good professIOnal relatIOnship with them. Accordmgly, I am recommendmg that he receive a letter of reprimand for his contravention of the WHDP polIcy At the time of hiS report Mr O'Bnen was not aware that Dr HOWitt had made unwanted sexual advances towards Ms. Smith. When he was asked the sigmficance of the fact that after the gnevor's mCldent and Dr HOWitt's diSCUSSIOns with Ms. Nicholls, he was gUilty of another unwanted sexual advance, Mr O'Bnen speculated that the counsellmg had not been effective. He stated however that, even if he had been aware of the mCldent, It would not have affected hIS recommendatIOns. ARGUMENT Mr Ryder, for the Umon, took the position that thIS IS not a case agamst Dr HOWItt. There IS no dIspute that he commItted acts of sexual harassment towards the gnevor and two other employees. Insofar as Dr Howitt exerCIses managerIal responsiblhty, he was In breach of Article 27 10 The achmmstratlOn was SImilarly In breach of that artIcle m that ItS response was madequate. It dId not do everythmg It could have m provldmg a harassment-free work place. A written reprimand was an mad equate response The UnIon argued that the purpose of the heanng was not to expand or elaborate on the conduct of Dr Howitt but rather to examine the madequacy of the Employer's response. The Umon asserted that a number of key factors place mto questIOn the appropnateness of that response FIrst .IS the fact that Dr HOWitt does not get the pomt, even as late as the date of the , 20 heanng. He does not apprecIate that unwanted sexual advances are not appropnate m and of themselves. He onl} acknowledges that the Impact on the grIevor was mappropnate After the meetmg wIth Ms. Nicholls, she thought that he understood the serIousness of hIS actIOns. She was surpnsed to learn that there were two other mCldents. At that stage It should have been clear to the admlmstratIOn that he dId not apprecIate the Impropnety of his actions. As well, It IS apparent that he deceIved Mr O'Bnen. Mr O'Bnen stated that when he met WIth Dr HOWItt m June of 1994 he was very emotIOnal and that he cned, but at that pomt It was clear that Dr HOWItt stIli dId not understand why hIS actIOns were wrong. In hIS cross-exammatIon Dr HOWItt 'saId that hIS actIOns were wrong because of the consequences. He has never conceded that they were, m and of themselves, mappropnate. He smd that he understood that sexual overtures were wrong but shortly thereafter acted in a SImIlar manner towards Ms. SmIth. Agam, he clmmed not to know that hIS actIOns were unwanted sexual advances. Clearly he dId not understand the concept of sexual harassment. It was the Umon's pOSItIon that Dr HOWItt'S actIons showed a purposeful mtentIOn not to understand. Another example of hIS fmlure to apprecIate hIS conduct IS the fact that he beheves the gnevor IS motIvated, at least m part, by a deSIre for revenge. He suggested that thIS complamt would not have proceeded as far as It has but for the gnevor's and the Umon's deSIre to retahate agamst hIm for actIOns he has taken agamst the bargammg umt. The Umon also took the pOSItIon that when Mr O'Bnen was consIdenng what recommendatIOns to make WIth respect to dlsclphne, he dId not take mto account the employment status of Dr HOWItt. I 21 He was In a positIOn of trust and power withIn the mstltutIOn. As well, as a chIef psychologist, he was relted upon to make recommendations regardmg sexual harassment allegations between young offenders and staff Mr O'BrIen's report contams more dIscussIOn about the problems Dr HowItt has expenenced SInce the complamts were filed than wIth the actual Issue of a harassment-free work place The recommendatIOn for a wntten repnmand was InSUffiCIent and inadequate In those CIrcumstances. The Umon asked for a declaratIOn that the Mimstry has faded to provIde a harassment-free work place as reqUIred under ArtIcle 27 10 of the Collective Agreement. It also asks for an order that Dr HOWItt be removed from the workplace m order to provIde a harassment-free enVIronment. In support of ItS pOSItIOn, the Umon relted on the followmg cases: Re Ministry of Correctional Services and OPSEU (HowelDaltonlLoach), GSB No 3155/92 (Dissanayake), Re Ministry of Transportation and OPSEU (Sidney), GSB No 1855/90 (McCamus), Re Ministry of Correctional Services and OPSEU (Basso), GSB No 2250/90 (Kaplan) and Re Ministry of Health and OPSEU (Anderson), GSB No 3842/92 (S Stewart) Mr Mously, Gnevance Admmlstration Officer for the Mimstry, took the pOSItIOn that the first findmg thIS Board should come to IS that the mCldent of January 4 1993 occurred as described by the gnevor It should also find that the conduct on that date amounted to sexual harassment. GIven those findIngs the Issue IS then what oblIgatIOns flow to the Employer as a result of that mCldent. The first consideration for thIS Board should be the WDHP polIcy of the MInIStry That polIcy not only reflects the plulosophy that employees are entItled to a workplace free of sexual harassment but , 22 also provides a mechamsm to deal wIth any harassment that does occur The Employer m thIS case complIed wIth that polIcy and, therefore, met Its reqUIrements under the collectIve agreement to provIde a harassment-free work place. The Employer qUIckly imtIated an mvestigatlOn mto the allegatIOns and, havmg found that they were substantiated, determined that a letter of repnmand should be placed on Dr HowItt'S file At that point m time all of the concerns of the gnevor had been met. It was later that the gnevor asked that wmdows be placed In the doors of the admmIstratlOn area of the ll1stItutlOn. Those wll1dows were eventually mstalled, albeIt not as qUIckly as the gnevor would have liked. As a result of the polIcy Mr O'Bnen was mstructed to make recommendatIOns regardmg the appropnate dIscIplme that should result from Dr HOWItt's actIons. He mtervIewed Dr HOWItt and, after consIdenng several factors, determmed that a letter of reprimand would be appropnate The Mimstry took the posItIOn that dIscIplme can not be purutIve. In order to exerCIse the Board's dIscretIOn to Impose dISCIplIne on a non-bargammg umt member, It must determme that IS IS absolutely necessary, that IS there must be no lesser penalty that would accomplIsh the same end. In order to substantIate ItS claIm that Dr HOWItt should be removed from the workplace, the Umon would have to show that the Employer's actIOns have not redressed the matter and that there IS a contmumg concern that sImilar mCIdents will occur The Mimstry took the posItion that there IS no eVIdence to show that that IS the case. There have been no further mCIdents mvolvll1g the gnevor or anyone else smce 1994 that should cause the Employer concern. In thIS case the onus IS on the Umon to show that the response was ll1adequate and that extraordmary remedIes are JustIfied. It IS not enough for them to take the posItIon that the dIscIplme should have been harsher , 23 Mr Mously dIsputed the Union's posItIon that Dr Howitt still does not understand the Significance of hIS actIOns. The Union relIes on two mCldents subsequent to the gnevor's complamt. The most Important penod, accordmg to Mr Mously IS the penod followmg August of 1993 The fact IS that smce then there have been no further inCidents and there is no further need for mtervention. In conclusIOn, the Ministry took the posItIon that they had acted appropnately m dealmg wIth the complamt of the grievor and the gnevance should be dIsmissed. Mr Roslyn, counsel for Dr HOWItt, took the posltlon that only If thIS Board finds there was a breach of the collectlve agreement, can It consider what remedy would be appropnate. He contended that there has been no eVIdence of a breach. Immedtately followmg the mCldent the process was set mto motIon to take the appropnate steps to mvestlgate and deal WIth the issue. There has been no attack on the polley or the procedure, only wIth the outcome. The Job of this Board is not to second guess the decIsIon made but to focus on whether the proper steps were taken to deal with the complamt. The WDHPP reqmres fairness to all of the mdIvlduals concerned. It promIses confidenttahty Arguably, Dr HOWItt could have filed a gnevance If there had been a breach of that confidenttahty The Issue of whether the WDHP polIcy suffiCIently addresses employee concerns IS not a questIOn for tlus Board to determme. As long as the Employer followed the polIcy and acted accordmg to Its recommendatIOns, It was m complIance with ItS obhgatIOns, both under the collective agreement and under the polIcy The Union took the posItion that thIS case was not about Dr HowItt but about a harassment-free workplace The fact IS that this case IS entIrely about Dr HOWItt. The Union's . 24 solution IS to have him dismissed from his employment at the CFYC A less intrusive remedy would ask that the gnevor be transferred. At least she would continue to be employed, whereas Dr Howitt's main source of Income would be taken from him. Even the cases relled on by the Umon indicate that the remedy sought by the Umon should only be awarded when it IS absolutely necessary If any remedy short of dIsmIssal would accomplish the same end, dIsmIssal IS not warranted. Mr Roslyn argued that the gnevor acknowledged at the time of the incident that she would have been satIsfied had there been a note on Dr HOWItt's file documenting hIS conduct. Perhaps she could have been better Informed as to what ultimately happened to Dr HOWItt, but that IS not a breach of the collectIve agreement. Mr Roslyn took the pOSItion that thIS case Involves a senSitiVIty to the Issue of sexual harassment. The cases relted on by the Umon involve more blatant sexual mIsconduct than the one before thIS Board. A kISS, in of itself, IS not offenSIve, although In thIS case Dr HOWItt went too far Asa result, Dr HOWItt underwent training to make him more sensitIve to the Issue. He learned from that trammg and his subsequent conduct has proven that. Mr Roslyn also took the pOSItIOn that there IS no pattern of sexual harassment In the Instant case. There have been no further allegatIOns since 1993 Dr HOWItt does not dIspute the dlsclplme, nor does he deny the gnevor's allegations. Perhaps he should have known better at the time but hIS subsequent actIOns have proven that he now does know better Mr Roslyn took the pOSItIOn that nothmg more ought to be done m the mstant case. 6- 25 UNION REPLY Mr Ryder took the posItIon that adherence to the pohcy and procedures IS not a defense. The policy IS not on tnal. The Issue IS whether the pohcy was Implemented sufficIently to address the concerns of the gnevor Even that pohcy recognizes that it may be necessary to remove a harasser from the workplace In order to provIde a harassment-free workplace. The Union also agreed that thIS was not a diSCIplinary case agamst Dr HOWItt. However, if thIS Board should determme that Dr HOWItt was not adequately dealt wIth, It has the JurIsdIctIOn to redress that Issue. GIven lus faIlure to understand the Import of hIS conduct, he should not be allowed to remaIn In the workplace untIl he truly apprecIates the nature of sexual harassment. That's what SectIOn 27 10 reqUIres. Even Dr HOWItt agreed that hIS relatIOnshIp WIth the gnevor contInues to be straIned and that theIr profeSSIOnal InteractIons are kept to a mInimum. He stressed that Mr Roslyn's suggestIOn that the eaSIest way to uphold the Integnty of the work place would be to transfer the grievor pumshes the victIm mstead of the harasser DECISION In the mstant case we are not asked to determIne whether Dr HOWItt commItted the acts alleged. He freely admIts that the gnevor s account of the events of January 4, 1993 IS accurate. Nor are we asked to determme whether those acts should be charactensed as sexual harassment. I t has been conceded by the Mimstry that they were. There has been no suggestion that the findIngs of the IIU pursuant to the WDHPP are wrong or that we should come to a different conclUSIOn. The only Issue between the partIes IS whether, In these CIrcumstances, the Employer's response to the findIngs of . 26 the IIU are consIstent WIth Its obhgatIOns under the collectIve agreement to provIde a harassment free workplace. The Umon has argued that the only way to ensure the gnevor's nght to a harassment free workplace IS effected would be to remove the harasser The Employer, on the other hand contends that It acted appropriately m the CIrcumstances and no further remedy IS reqUlred or warranted. There can be no question that a panel of the GSB has not only the Junsdlctlon but also the duty to take whatever steps are necessary to gIve effect to the protections m artIcle 2701 In the Howe case (supra) the Board was faced wIth a sItuatIOn very sImilar to the one m the mstant gnevance They were dealmg with five gnevances, two by Ms. Howe, two by Ms. Loach and one by Ms. Dalton. In all of those grievances the allegatIOn was that they had been subjected to sexual harassment by management personnel at the HaIleybury Jail. Each of theIr allegatIOns were the subject of an mtemal mvestIgation by the IIU In each case the allegations were found to be partially substantiated and apologIes were ordered. The gnevors were advised that dlscIphnary action had been taken agamst one of the harassers but the employer refused to dIsclose the nature of the dIscipline The Uillon took the posItIon that as a dIrect result of the conduct of both management personnel, a pOIsoned envIronment had been created at the work place. It further alleged that the employer had contributed to the contmuatIon of that pOIsoned enVIronment by faIlmg to take appropnate actIOn agamst the harassers, whIch was a VIOlatIOn of ArtIcle A and ArtIcle 27 10 of the collectIve agreement. ThIS award dealt wIth the prehmmary Issue of the scope of the Board's remedial JUrISdIctIOn If the gnevances were upheld. The Uruon was seekmg a dIrectIon that the employer take specIfic action agamst the two harassers by transferrmg or dlschargmg them. The questIOn for the , 27 Board was whether the Grievance Settlement Board had the JUriSdIctIon to dIrect the employer to take specIfic dIsclplmary actIOn agamst a member of management as a remedy m a sexual harassment/dISCrImmatIOn grievance. That mvolved an interpretatIOn of not only the collectIve agreement provIsIons but also SectIOns 18 and 19 of the Crown Employees Collective Bargaining Act. SectIOn 18 1 deems that every collective agreement provIded that It was the exclusIve function of the employer to manage Its functIOns, mcludmg the nght to determme employment, appomtment, compliment, orgamzatIOn, assIgnment, dISClplme, dismIssal, suspensIOn work methods and procedures etc. SectIOn 19 1 deems every collective agreement to provide a gnevance process mvolvmg any dIfference concermng the mterpretatIOn, applIcatIOn, admimstratIOn or alleged contraventIOn of the agreement. The GSB was authonzed to "decide the matter" m a final and bmdmg decIsIon. In consldermg the questIOn before It, the Board observed "It IS a commonplace of the law that the existence of a nght ImplIes the eXIstence of a remedy" and referred to the Berry case (OPSEU and Carole Berry et v Ontario Ministry of Community and Social Senrices (1986),15 O.A.C P 15 (Ont.Dlv Ct.) The DIvISIOnal Court, m reVIewing the board's remedial jUnSdlctIOn, decIded that It had the power to reqmre the employer to create clasSIficatIOns for the gnevors notwIthstandmg the exclusive nght of the employer under SectIOn 18 (1) of the CECBA to clasSIfy pOSItIOns. It determmed that the Board's oblIgatIOn under SectIOn 19( 1) of CECBA was to "decIde the matter" and that the matter before It was a Improper classIficatIOn. If the Board concluded that the classIficatIOn was mdeed Improper, ItS mandate was to effect the proper classIficatIOn and ItS jUnSdlctIOn m that regard was unrestncted. . 28 In the Howe decIsion, the Board also referred to the case of Re Courteney (GSB #912/88) wherem the Board held that It did possess the authorIty to direct the removal of a harasser from the workplace as a remedy in a sexual harassment grievance. In the CIrcumstances of that case it declIned to exercise that authOrIty However, It did note on page 82-83 The question of what remedies a Board feels are necessary to put an end to sexual harassment is of course the real Issue. In that regard, I have not (sic) doubt that this Board under S.19 of the Crown Employees Collective Bargaining Act has extensIve powers. Indeed the DIviSIOnal Court has repeatedly reminded the Gnevance Settlement Board of the scope of its remedial powers, as for example, in the areas of Job classIficatIOn and the Beresford type cases. The same IS certaInly true in the area of sexual harassment. As stated before, It however refused to exercise Its authOrIty m the case before it and Said at page 85 .Such an order would only be justified If there was no hope of remedying the sItuation WIthout such an order I do not belIeve that the facts disclose such a situation. In the Howe case (supra), the Board stated at page 17 In the case at hand, one of the allegatIOns IS that the manner In which the employer exercised ItS management authonty to dIscIpline contributed to or caused the pOIsoned environment. That very conduct IS said to constitute a volItIOn ofthe collectIve agreement. The Umon is claImIng Inter all!!, that by takIng madequate action agamst the perpetrators, the employer continue to expose the grievors to the poisoned environment. The employer has already decided the appropnate level of discipline required in ItS Judgment. If the Board agrees WIth the Umon 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 management 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 has already made that deciSIOn and that very action has been found to be a contraventIOn of the collective agreement. .Here if we conclude that the employer has failed to properly exercise the management function of its dlsclplmary authonty and that it has hereby contravened the collective agreement, the Board has an obligation to remedy that contravention. The only effective way of doing that m these circumstances is by directIng the employer to do whatever is reqUIred to remedy the grIevors. After considering the cases before It, the Board reached the followmg conclUSIOns, at page 22 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 , 29 grievance, it has the JUrisdIction to do so. Because such an order IS absolutely necessary, It IS remedial m 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 encroachmg into areas reserved to the employer as exclusive management rights, doe>> not mean that the Board must declme to exercIse Its authority to remedy a vIOlatIOn of the ColIective Agreement found to eXIst. The other sIde of the com is that If the Board IS satisfied that other remedial orders can reasonably be expected to provide fulI redress, the dIrection of specIfic disclplme 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 rulmg 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 finalIy and effectively remedy these grievances. In the Sidney case (supra), the gnevor was a supervIsor who had been found to have sexually harassed an employee under hIS supervIsIOn. As a result he was gIven a 10-day suspensIOn and subsequently transferred to another office. The grievor argued that the 10-day suspensIon was exceSSIve m the CIrcumstances and that the decIsIon to transfer hIm was a further discIplmary sanctIOn that was unwarranted in the CIrcumstances. The Board detenmned that the 10-day suspension was appropnate. With respect to the issue of the gnevor's transfer, the Board agreed that the employer had the nght to effect such transfer In order to comply wIth Its obligatIOns to provide a harassment-free workplace. The victim of the sexual harassment and the harasser worked alone m an office and theIr abIhty to contmue to work together was severely affected by hiS actIOns. The Board found, on page 19, the followmg. .In our view, the UnIon, on thIS point takes too narrow a view of the Employer's rights and, mdeed, responsibilities. In an appropriate case the Employer could, In our view, make such a transfer on either one of two grounds. First, the perpetrator of an mcident of sexual harassment may thereby make hImself an inappropriate person to engage in further supervIsIOn of the employee III question. If, as a result of hIs wrongful conduct, a supervisor makes It Impossible for an employee to enjoy peace of mind in his presence, the employer , 30 can reasonably come to the conclusion that the supervisor should no longer supervise the employee in question. In such a situatIOn, In our View, the Employer could either transfer the concerned employee or, depending on the circumstances, could reasonably transfer the responsible supervisor The Employer's ability to make such transfers IS not, in our View, necessarIly routed exclusively in Article 27 of the agreement. Nonetheless, and this is the second basis for our conclusIOn that the Employer can take such measures, it IS our view that Article 27 does, Indeed, provide additional support for the Employer's capacity to make transfers on such grounds. The obligatIOn to create a workplace which is free from harassment must, in our view, include the nght to take reasonable steps to reduce or eliminate the negative psychological aftennath that may flow from such incidents. No doubt, In detennining whether a transfer in a particular situatIOn of the supervisory employee IS a reasonable step to take, It would be appropnate to consIder whether other less disruptive measures could reasonably have been taken. The Board went on to note that It was also reasonable to expect that the burden of bemg transferred should be born by the gnevor as the perpetrator of the inCident rather than the victim. In the Anderson case (supra), the Board found that the gnevor's supervisor had been gUIlty of sexually harassment. It noted, on page 36, the following: .In the particular circumstances of this case, where there has been an abuse of Mr Fawcett's power as a manager and a faIlure to acknowledge that abuse, it is our view that Mr Fawcett's continued supervisory responsibilIty in this work area is simply untenable. While, as Ms. Crawford emphasized, there is no indication of any further incidents since Mr Faucett was disciplined, this does not alter our assessment that anything short of remOVIng him from thIS work environment SItuation is appropnate. Ms. Anderson, like all employees, is entitled to fully develop her potential in an atmosphere that is conducive to that development. The removal of artificial or unfair baITIers to allow employees to reach their potential is the object of the proviSIOns of the collective agreement prohibiting discrimmatlOn and sexual harassment. In her current Situation Ms. Anderson quite understandably IS reluctant to make efforts to realIze her potentIal in the work place. Accordmgly, Ms. Anderson continues to bear the burden of this Situation. That burden must be alleVIated and we agree With the UnIOn's submiSSIOn that In lIght of the particular circumstances of this case nothing short ofMr Fawcett's removal from his posItion is truly remedial We turn now to the issue of how thiS ought to be achieved. It went on, at page 38, to state. We also agree with the thrust of Ms. Crawford's submiSSion that as a matter of principle, It is appropriate to provide the least intruSive remedy possible, provided of course that It IS sufficient to remedy the violation. It is our conclusion that to direct the Employer to discharge the grievor would be inappropriate and unnecessary as the ViolatIOn can be t 31 remedIed more appropriately by simply dIrecting the Employer to remove hIm from the supervIsory posItIon In thIs partIcular work envIronment. The Employer may take whatever action It deems necessary in order to achieve thIs removal, that is a matter between the Employer and Mr Fawcett. The one caveat that must be attached to this dIrectIOn, however, IS that any actIOn that the Employer takes must not be one that can be viewed as an obvIOUS benefit to Mr Fawcett, such as a promotion. WhIle we have considered the UnIon's submIssion that not specIfically directing the severance of Mr Fawcett's employment may result in a sItuation where he continues to be employed elsewhere m the MInIstry and such actIvity on the part of Mr Fawcett may recur, thIs IS a matter that the Employer wIll, If It contmues Mr Fawcett's employment, no doubt take great care to aVOId. This matter does not compel us to conclude that an order directing hIs dismissal IS mandated by the cIrcumstances... From these cases certain princIples have emerged. The first is that, If the circumstances warrant, a Board of ArbItration does have the broad JurisdictIOn to fashIOn a remedy that ensures an employee's nght to a workplace free from sexual harassment IS protected. That remedy, If necessary, could mclude an order that a non-bargalmng urnt member be transferred or dIscharged. That extraordmary remedy, however, IS not to be punitive in nature but IS to reflect the realIty that no other order short of transfer or dIscharge Will accomphsh that end. At the mltIal stages of the mstant case, the Employer's response to the gnvor's complamt was dealt With promptly and effiCIently As soon as Ms. Nicholls learned of the incIdent, she took steps to deal With It. She adVised all of the appropnate people. She spoke directly to the gnevor and adVised her of her nghts under the WDHPP She made It clear to the gnevor that she was prepared to take InstructIOns from the gnevor WIth respect to the complaInt procedure. It was the gnevor's chOIce at that tIme to proceed Informally She told Ms. NIcholls that she wanted Dr HOWItt to be made aware of how he made her feel and wanted some assurance that no further InCidents would occur Ms. NIcholls then spoke to Dr HOWItt, adVised hIm of the gnevor s complamt, told hIm that hIS actIOns constItuted sexual harassment and adVised hIm that a letter to that effect would be placed on , 32 his file. At that pomt m time, the gnevor's concerns had been met and, as far as she was aware, Dr HOWItt had been sufficiently reprimanded. The next day she expressed her concerns about the Isolated 10catlOn of Dr Howitt's office and asked that glass WIndows be Installed as a further protectlOn for the residents and staff. She was told that would be done and, agaIn, she was was satIsfied that her complaInt had been taken serIously However, from that pOInt In tIme, the efforts of the Employer to allay the grIevor's concerns were less than adequate. Those WIndows were never installed, apparently because there were no funds avaIlable for the renovatlOns. As well, despite the grIevor's efforts, she was unable to confirm that a letter of repnmand had been placed on rus file. The Employer's refusal to acknowledge that a letter of repnmand had Indeed been placed on Dr HOWItt'S file understandIngly raIsed questlOns m the gnevor's mmd about the dIspOSItion of her complamt. The promIse that informatIOn collected during an mvestIgatlOn remams confidentIal surely should not be Interpreted to mean that the complamant IS not entItled to know what, If any, repnmands were Issued as the result of her complaint. It is unreasonable to expect that a VIctIm of sexual harassment wIll be content SImply WIth an assurance that her harasser has been dISCIplIned. She has a nght to know what the dISCIplIne IS so that she can determme whether she IS satIsfied with the results. At this stage of the grievor's complaInt, had the Employer complIed WIth the gnevor's requests, that mIght have been the end of the matter In the Interval the gnevor became aware of rumours of other acts of sexual harassment allegedly comnutted by Dr HOWItt. Once she had spoken directly to the women mvolved and confirmed theIr allegatIOns, It IS not dIfficult to understand why she deCIded I 33 to proceed wIth a formal complamt. At the time of her mCIdent, she had clearly expressed her concerns about another mCIdent. Her attempts to prevent further mCIdents had been Ignored. In the cIrcumstances, It IS hardly surpnsmg that she would look further for assIstance. The mvestIgatIOn by the lID and the resultmg report must have gIven her new reason to belIeve that finally the Employer would take the appropnate steps to deal wIth Dr HOWItt. Not only had her complamt been formally substantIated, but the other allegations were also confirmed. However, once agam she was dIsappomted and dIscouraged by the results. NotwIthstanding the findmgs of the lID, Mr O'Bnen's report, whIch clearly formed the basIS for the letter of repnmand, mdIcates that he dId not appreciate the fundamental components of sexual harassment. His report faIled to take mto account two sIgruficant factors that are mherent m sexual harassment, whIch IS that It conSIsts of any unwelcome sexual advances that are likely to cause offence or hwmhatIOn to an employee and IS most prevelant 10 the employment context tradItIOnally mvolvmg inappropnate conduct by a someone in a posItIOn of power or authonty towards a subordinate. In thIS case, Dr HowItt does not directly supervIse the gnevor but he does hold a posItIon of authonty m the mstItutIOn. HIS advice and recommendatIOns are rehed on by the Employer m defirung the very aspect of employment he has been found gUIlty of vIOlatmg. As such, he should have been aware of the mappropnateness of hIS actIOns. It IS not a question of whether or not he mtended to offend the gnevor or whether or not he understood that hIs actIOns mIght offend the gnevor GIven hIS posItlon and trammg, he ought to have known that hIS advances would be unwelcome. Mr O'Bnen appears to have accepted Without questIOn Dr HOWItt'S assertIOn that he I 34 never meant to cause the gnevor any harm. He mentions Dr HowItt's "excellent reputation among hIS colleagues as a skIlled, canng professIOnal" who might have "become too famIhar wIth staff' He comments on Dr HowItt'S remorse and determmatIOn that the behavIOur complamed of not recur He mcludes Dr Howitt's suggestIOn that the gnevor's motIves are fueled, m part, by a deSIre for revenge because he has sIded wIth management m dIsputes between the Umon and management. What Mr O'Bnen does not mentIOn m hIS report, however, IS that the examples Dr HOWItt rehes on mvolved recommendatIOns on what constItutes sexual harassment. Three bargammg umt members were dIscIplmed for conduct Dr HOWItt identified as sexual harassment. In order for hIm to have made that assessment, one would expect that he was conversant With the concept of sexual harassment. In our View, Mr O'Bnen's report fails to take mto account Dr HOWitt's pOSitIOn withIn the mstItutIOn m these matters. As well, he failed to take into account Dr HOWitt's responsibIhtles m counsellmg staff HIS profeSSIOnal status and posItion In the InstItutIon should have weIghed agamst Dr HOWItt. Instead Mr O'Bnen seems to have gIven Dr HOWItt credIt for hIS "excellent reputation as a skIlled canng profeSSIonal" More Importantly, Mr 0 Bnen s report contams no reference at all to the effect of Dr HOWItt s conduct on the gnevor He notes Dr HOWItt'S remorse for "any embarrassment whIch he may have caused his co-workers" He comments on Dr HOWItt'S concerns about the effect of the complaInts on hIS family He does not, however, mentIOn the Victim. There is no eVidence in lus report that he understood or even considered what the gnevor would need or want m order to feel her concerns had been met. There is no acknowledgement m hIS report that VictIms of sexual harassment can suffer long lastmg effects mcludmg those described by the Witness. She testIfied that she lost confidence , 35 and trust m her co-workers and that she had mghtmares, headaches and msomma after the mCIdent. Her reactIOn IS common m complamts of sexual harassment and Mr O'Bnen's report does not make any reference to them. He took care to mtervIew Dr HOWItt, Ms. Nicholls and other management personel but does not appear to have felt any need to speak to the grievor A complete mvestlgatIOn should have mcluded the VIews of the gnevor The exclUSIOn of any reference to effect of Dr HOWItt'S actIons on her, coupled wIth the numerous comments about the effects of the complamt on Dr HOWItt, gIve the perceptIOn of a bIased VIew ofthe incIdent and Dr HowItt's part m It. FInally, there are clear IndICatIOns In Mr O'Bnen's report that Dr HOWItt, despIte the one-day workshop, stIll dId not understand the concept of sexual harassment. He apologised for "any embarrassment he may have caused hIS co-workers" (my emphasis) In the first Instance, sexual harassment of a co.worker IS not merely embarrassmg. It IS humIlIatIng. It IS a betrayal of trust. It IS offenSIve Dr Howitt InabIlIty to accept that IS mdlcatIve of hIS refusal to apprecIate the senousness of lus actIOns. As well, hIS use of the word "may" IS another mdlcatIOn that he does not or WIll not acknowledge that hIS actIOns did, in fact, affect his co-workers in a real and matenal way Mr O'Bnen stated In hIs report that "Dr HOWItt admIts that on reflectIOn his actIOns were mappropnate and expressed "dlsappomtment that hIS actIOns were perceIved as sexual In nature" HIS actIOns were, m fact, more than mappropnate. They were Improper and unlawful. In hIS pOSItIOn as a profeSSIOnal psychologIst, hIS fmlure to understand the grave nature of hIS mIsconduct IS mexplIcable He appears, accordmg to Mr O'Bnen's report, to blame the VIctIms oflus advances for mIsunderstandmg hIS motIves. He was dIsappomted m them for not acceptIng hIS actIOns m the mnocent manner he mtended. In the case of the gnevor, It IS hard to Image how one could perceIve ~. 36 two kIsses on the lIps dunng an embrace as anythmg but sexual m nature. His persIstent demal m the CIrcumstances IS, agam, mexplicable. Dr HOWItt s eVIdence at the heanng dId not reassure us that he has become any more enlIghtened m the mterval. He mamtams that he dId not know at the tIme that hIS conduct would be consIdered sexual or unwanted. When asked what he had learned from the mcident, he stated that "my subjective VIews have to take second to perceptions" That statement, m our VIew, IS another clear sIgnal that Dr HOWItt contmues m hIS belIef that he dId not do anythmg wrong. The problem, accordmg to hIm, IS not what he dId but rather how people percIeved what he dId. That IS not sufficIent. His conduct towards the gnevor was unquestIOnably sexual m nature. He put hIS arms around her and kIssed her tWIce on the lips. To suggest that the gnevor overeacted to that SItuatIon IS SImply untenable m the CIrcumstances. Employers are responsible for ObjectIOnable sexual behavIOur by theIr superVIsors and managers. As soon as they dIscover that sexual harassment m the workplace IS occurrmg, they are reqUIred to take appropnate remedIal actIOn to mllnedIately correct the SItuatIOn. The fact that an employer has explICIt polICIes forbIddmg sexual harassment and procedures for reportmg and mvestIgatmg such conduct IS not necessarily a defence If those polIcies and procedures do not adequately address the problem. In tlus case, the Employer's contentIOn that It dId everythmg reqUIred under the WDHPP and therefore met Its oblIgatIOns under the collectIve agreement to proVIde a harassment-free workplace IS not borne out by the eVIdence. It IS clear whIle It acted appropnately and promptly at the mvestIgatIve stages of the complamt, once It was satIsfied that the complamt was valId, It dId not . 37 act In a manner conSIstent WIth ItS oblIgatIOns under artIcle 27 In fact, It would appear It dId not act at all We were never told when the WIndow was actually Installed In Dr HOWItt'S door but we do know that as of September, some rune months after the InCIdent, the gnevor's request for a WIndow went unanswered. It would also appear that no letter ofrepnmand was placed on Dr HOWItt'S file untIl after the report of the lIU, notwIthstandIng the Employer's assurance to the gnevor that It would be. Dr HOWItt dId not attend a workshop on harassment untIl February of 1994, more than a year after the InCIdent. In the CIrcumstances It IS hardly surpnsIng that the gnevor deCIded to file a formal complaInt. It IS also not surpnsing that her pOSItIOn hardened through tlus expenence. The Employer faIled to take appropnate steps to assure the gnevor a workplace free from sexual harassment In spIte of the clear eVIdence that she had been a VIctim. She knew that bargaInIng urut members had been dISCIplIned for that same mIsconduct and could reasonably conclude that Dr HOWItt'S pOSItIOn at the InstitutIOn was the reason for the unequal treatment. That conclUSIOn was reInforced when she dIscovered, notWIthstandIng the clear finding of the IIU that Dr HOWItt was gmlty of not one but three acts of sexual harassment, that all he receIved was a mildly worded letter of repnmand. HaVIng determIned that the Employer dId not meet the reqmrements of artIcle 27, the Issue IS what should It have done In the CIrcumstances and what should thIS Board order by way of remedy The Uruon IS entitled to a declaratIOn that the employer IS In breach of ItS oblIgatIOn to take reasonable steps to address the concerns of the gnevor that her workplace be free from sexual harassment. It has asked that remedy Include an order that Dr HOWitt be placed on suspensIOn untIl a there is a determInatIOn by a qualified profeSSIOnal that he appreCiates the senousness ofms conduct. The case , 38 law IS clear that such an extraordmary remedy should only be ordered If the Board IS satIsfied that no lesser penalty wIll suffice Weare not persuaded that we should exerCIse our dIscretIOn m thIS case to make such an order We belIeve that Dr HOWItt's understandmg and apprecIatIOn of sexual harassment m the workplace IS unacceptable given hIS contmued assertIons that he meant no harm and that the gnevor mIsunderstood hIS intentIons. As well, he persIsts m his contentIOn that hIS conduct towards the gnevor was not sexual m nature. However, Dr HOWItt does not dIrectly supervIse the gnevor He has no dIrect mfluence on her employment condItIOns and has no mput on her prospects for future promotIOnal opportumtes. If he dId we mIght have come to a dIfferent conclusIOn. Although she contmues to feel uncomfortable m hIS presence, her contact WIth hIm has been and can contmue to be kept to a mImmum. The mCIdent occurred m 1993 Smce then there have been no further Improper advances by Dr HOWItt, not necessarily because Dr HOWItt has a better understandmg of sexual harassment but because he has learned to be more careful in hIS actIOns. For those reasons we are not prepared to order the suspensIOn or dIsmIssal of Dr Howitt. We are, however, satIsfied that the Umon's request that Dr Howitt receive addItIOnal counsellmg and mstructIOn m sexual harassment and dIscnmmatIOn has ment. The one-day workshop he attended m 1994 was clearly madequate. One would have expected that someone wIth Dr HOWItt'S educatIOn and trammg would have already comprehended, If not the Impropnety of hIS actIOns, at least the effect of hIS actIons on the gnevor He needed more than a bnef dIscussIOn of what actIOns constItute sexual harassment. He obvIously needed, and m our VIew contmues to need, extensIve teachmg on why sexual harassment, partIcularly m the employment context, IS Improper He needed and contmues to need mstructIOn on the effect of sexual harassment on the victIm and the reasons , 39 for that effect. We therefore order that the Employer and Dr Howitt, m consultatIOn with the Umon and the gnevor, explore suitable sources for that education. If the Employer IS unable to offer suitable teachmg opportumtIes wlthm the mstltution, It IS order to consult with outSide agenCIes to apply or develop a course of mstructlon that WIll provIde Dr HOWItt WIth the understandmg he needs to ensure that hIS actIOns are never repeated. There was eVIdence before us that the instItutIOn has relIed on Dr HOWItt's profeSSIOnal adVIce In matters relating to sexual harassment allegatIOns between the staff and the reSIdents. Until Dr HOWItt has receIved the counsellmg ordered above, the Employer should not seek hIS adVIce In these matters. In the CIrcumstances, neIther the Employer nor the employees should feel confident that hIS recommendatIOns are based on a thorough understandmg of the pnncIples of sexual harassment. We wIll remam seIzed m the event the partIes have dIfficulty Implementmg the orders of the Board. Dated this 21st day of October, 1997. ~~ ~4 )j~ ---~L/( -~/ cl?~'1 Loretta Mikus Mike Lyons V Ice-Chair Umon Nommee Employer Nom1!l_e_e ,