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HomeMy WebLinkAbout1994-1829DOMACINA95_09_26 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO MSG lZ8 TELEPHONE/TELEPHONE (416) 326-1388 780 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) MSG lZ8 FACSIMILE/TELECOPIE (416) 326-7396 --.- ~-.-............_...- -....--.-...... -..........----- .- GSB # 1829/94 ,. OPSEU # 94F491 ) , D ~ ~ I IN THE MATTER OF AN ARBITRATION .., - ~ .,.,.., -.'" \ -' j Under ~ ._--...---.--'- THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Domacina) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE R J. Roberts Vice-Chairperson FOR THE C Flood GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE L Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING May 18, 25, 1995 August 8, 9, 1995 1 A ward This is a discipline case The gnevor was suspended for twenty days for verbally sexually harassmg and threatenmg a co-worker, Ms Diane Versace Ms. Versace was the first wItness called to testIfy on behalf of the employer, the Queen's St. Mental Health Center She was a reluctant wltness, m the sense that she had not wanted to report the mCldent and threat leadmg to the dIsciplme m questIOn and for a consIderable penod, declined to make a statement to management settmg forth her verSIOn of the detaIls of the mCldent. The gnevor testIfied on hIS own behalf and, as he had dunng the proceedmgs leadmg up to dIscIplme, demed that the mCIdent and threat alleged by Ms Versace ever occurred. For reasons whIch follow, it is concluded that the mCIdent dId, m fact, occur and as a result dIscIplme was warranted. The employer m thIS case the Queen's St. Mental Health Center, is located m the heart of Toronto Ontano It IS one often provmcIal psychIatnc hospItals canng for senously mentally III people m Ontano These people reqUIre a complex group of serVIces to enable them to manage m the world. The employer has 450 m-patIents and 2000 out-patIents Senously mentally III patients were defined at the heanng as those who either contmuouslv or at times have difficulty copmg wIth reality These patIents may be psychotic, mamc depressIve or bram damaged man acqUIred or orgamc manner To care for thiS populatIOn, the employer has approximately one ') thousand staff Of these approxImately five hundred are nurses The remamder are chmcal care admmlstratlve and housekeep 109 personnel Because thIS case turns 10 large part upon the credlblhty of the eVIdence of Ms. Versace, the gnevor and others to whom Ms. Versace spoke regardmg the mCldent pnor to ItS bemg brought to the attentIOn of the employer, the eVIdence of these wItnesses wIll be revIewed 10 some detaIl Ms Versace As already mdlcated, Ms Versace was the first wItness called to testIfy on behalf of the employer She commenced employment m 1988 as an R N A. In August, 1993 she became an R N WIth the employer, havmg graduated from college WIth a Nursmg dIploma. In March, 1994 Ms Versace transferred to UnIt 1 5 at Queen's St. To her, thIS was a welcome development because staff regarded thIS UnIt as a good place to work and she was able to work the ShIftS that were most attractIve to her Accordmg to Ms Versace, the gnevor transferred mto UnIt 1 5 a couple of weeks after she started. He also was an R N The mCldent alleged 10 thIS case occurred, accordmg to Ms Versace, on Apnl 19 1994 Ms Versace testIfied that after her ShIft ended at eIght o'clock pm, she went down to the southwest parkmg lot dIrectly m front of the bUIldmg housmg her UnIt. She went to her car and opened the dnver's door At that pomt, she sensed someone behmd her She turned and looked. There was ... j the gnevor IllltIally Ms Versace testIfied, she thought that the gnevor was Just gOIng to hIs car as well The gnevor, however, was standIng rather close to her Then he saId, "you have lovely breasts" He was close enough to her, Ms Versace saId, that when she turned to get Into her car, she brushed hIm wIth her shoulder Because It was dusk and not really dark, Ms. Versace saId, she was sure that It was the gnevor When asked whether she saId anythIng to the gnevor before dnvIng off, Ms. Versace saId no She dId not say anythIng to hIm. She Just Jumped Into her car, backed out of the parkIng spot and drove away At that pOInt In tIme, Ms. Versace saId, she was workIng at Centenary Health Center on a part tIme baSIS and had to dnve to thIS hospItal to work a ShIft there She Just wanted to forget It. As lllght wore on In the course of her ShIft at Centenary, however, she talked about the InCIdent to Ms LIsa CurtIS, a colleague who was a full-tIme Nurse at that hospItal AccordIng to Ms Versace Ms CurtIS told her that she should report It; however, she dId not. When asked why not, Ms Versace replIed, "I Just wanted to forget about It." She dId not tell anybody else Ms Versace testIfied that she reported for work the next day, Apnl 20 At that tIme, she SaId, the gnevor approached her and SaId somethIng to the effect that" nothIng happened last lllght." 4 Ms Versace confirmed that she did not make a statement to the employer about this 10Cident until sometime 10 November She said that 10 October, Mr Mort Mates, the then local umon preSident, telephoned her and said that he'd lIke to talk to her about the 10Cident 10 the park10g lot With the the gnevor This took her by surpnse, Ms. Versace said, because she had not told anyone at Queen's St. At first, she replIed, " what 1OCident?" She then agreed that she would meet With Mr Mates on the follow1Og Monday On that day, Mr Mates came up to see Ms. Versace. Accord1Og to Ms. Versace, he told her that she was oblIgated to report the 1OCident. She replIed that she wanted to th10k the matter over, after first discuss10g it WIth her husband. Then Mr Mates left. Subsequently Ms Versace said, she told Mr Mates that she dId not want anyth10g to do WIth It and that she refused to make statement. At that tIme, she saId, she was five months pregnant. After that, Ms Versace testIfied, she was contacted by her Head Nurse, Ms Suzanne Haddad. Ms. Haddad said that she would support Ms. Versace eIther way that she WIshed to go and left It at that for a few days Then Ms Haddad approached her aga10 and told Ms Versace that the employer would go ahead and report the 10Cldent 10 any event because the v were oblIgated to report It and It had come to theIr attentIOn. When asked about a reference 10 her statement to feel10g threatened by the gnevor Ms Versace 5 said that she felt intimidated having to work with him This. however was not as a direct result of the incident. She felt that way from the time she first began working wIth the gnevor perhaps, she saId, because of other things that she had heard about hIm There was an extensIve cross eXaminatIon. Counsel for the umon began by probing the statement that Ms Versace had made on November 1, 1994 When asked whether she wanted to make thIS statement Ms Versace replIed that she had not wanted to make thIS statement at all She saId that she felt pressured to do so She saId that she was "getting It from all angles," from the umon, her Head Nurse. and even co-workers She emphasIzed that Ms Haddad and Mr Mates had told her they were oblIgated to report the incIdent In any event. When asked how Mr Mates and the others had come to know about the incIdent, Ms. Versace replIed that she understood that Ms. CurtIS had told someone that she knew at Queen's St. dunng the summer months. She demed counsel's suggestIOn that she told anyone about It. Expanding upon thIS, Ms Versace saId that she was approached In the parking lot by a co- worker Ms MIchelle Wharton. Ms Wharton told her that LIsa CurtIS had adVIsed her of what had happened wIth the gnevor ThIS, apparently, was after Mr Mates had called her Ms Versace demed gOing Into any detaIl WIth Ms. Wharton. It was Incorrect, she saId, to suggest that she told Ms Wharton that the gnevor had touched her breasts Perhaps, Ms Versace suggested. Ms. Wharton had heard thIS through the grapeVine and It was mIsconstrued. Ms Wharton, she saId, 6 was a co-worker wIth whom she was fnendly /" When counsel for the umon read Ms Wharton's statement to her Ms Versace demed that she ever told Ms Wharton about the mCIdent a week after It had happened Once agam, she demed tellIng Ms Wharton that the gnevor had touched her breasts She said that she dId recall saymg to Ms Wharton that she wanted to keep the matter hush hush. Counsel for the umon then asked Ms. Versace whether she told Ms CurtIS that the gnevor had touched her breasts Ms Versace demed tellmg her that. She said that she was tIred and upset when she told Ms CurtIS, but she never saId that the gnevor had touched her She dId not even name the gnevor to Ms. CurtIS. When asked where she and Ms. CurtIS had dIscussed the mCIdent, Ms Versace replIed that she belIeved It was m the kItchen at Centenary HospItal It was not at Ms. CurtIS' resIdence She said that she dId not even know where Ms CurtIS lIVed. The kItchen at Centenary HospItal, she explamed, was where staff went for break. She saId that she only recalled speakmg to LIsa CurtIS once The conversatIOn wIth Ms CurtIS, Ms. Versace saId, occurred at about 11 p.m. when she and Ms CurtIS were on break and alone m the kItchen. ThIS was not a scheduled break, she said, because staff took breaks when they could. 7 Counsel for the unIOn then advised Ms. Versace that Ms. CurtIS, when contacted by Mrs Anna Kutty, the Nursmg Coordmator at Queen's St., allegedly told Mrs Kutty that Ms. Versace went to her place after work to discuss the mCident. Ms Versace flatly demed this, saymg eIther Ms CUrtiS or Mrs. Kuttv was wrong. She said that she did not descnbe the mCldent to Ms CUrtiS at any other place than the kItchen at Centenary HospItal and she dId not tell Ms. CUrtIS that her breasts had been touched. When asked why Ms CUrtIS had told Ms Kutty that the gnevor had touched her breasts, Ms Versace replIed that she had told Ms CurtIS dIfferent thmgs regardmg workmg wIth the gnevor and she was upset, so, perhaps Ms. CurtIS put these thmgs together Ms CUrtIS, Ms Versace Said, knew that she dId not want to report the mCident. She urged Ms. Versace to do so saymg that it may go further the next tIme When counsel mqUIred as to what other thmgs about the gnevor Ms Versace had related to Ms. CUrtIS, Ms Versace explamed that whIle she had only worked wIth the gnevor for a short tlIne at the tIme of the mCldent, she had dIscussed wIth Ms. CUrtIS m the months that followed the mCldent, thmgs about gnevor that she learned after workmg wIth hIm longer When counsel asked whether Ms Versace was aware that she could make sexual harassment 8 complall1ts In contidence and bnng the Incident to the attentIOn of management In that way Ms Versace replied that she was aware that she could have done thIS. She agreed that she never InItIated such a complaInt. She also agreed that she kept workIng wIth the gnevor through to October, 1994 She never asked not to work wIth hIm and, she agreed, had ample opportumty to complaIn regardIng the IncIdent to her husband, to Ms. Kuttv and to Ms Haddad, yet she never dId. ReturnIng to the statement that Ms. Versace had made, counsel asked her once agaIn whether she felt forced to make It. Ms. Versace replIed that she dId. NothIng was saId, she testIfied, but at one pOInt In tIme when she was stIll refusIng to make a statement, Ms. Kutty and Ms. Haddad both saId that If she felt uncomfortable workIng wIth the gnevor she would be transferred out of the umt. She felt thIS was unfaIr, Ms Versace SaId,. She dId not see why she should be the one to transfer out of the umt. Ms Versace also testIfied that Ms Haddad advIsed her that If she maIntaIned her refusal to make a statement, Ms Haddad would seek out statements from people Ms. Versace had told about the IncIdent. She saId that she replIed that she dId not want to Involve these people For all of these reasons, Ms Versace SaId, she Just felt pressured to make a statement. As to Ms. Versace's unwIllIngness to Involve those to whom she'd spoken about the InCIdent, counsel for the umon asked whether she had told Ms CurtIS and Ms Wharton a dIfferent story 9 and was concerned that she'd be made out a lIar If the employer IntervIewed them. Ms Versace demed thIs She said that she had not seen Ms CurtIS all summer and was not thInkIng about any of thIs She saId that she was pregnant and had cut down on her shIfts at Centenary Hospital Ms Versace said that when the employer learned of the IncIdent In October she began to feel a great deal of stress and was afraid that It could affect the term of her pregnancy It dId not, however, and her baby was born full term on March 15 1994 She also said that Ms Haddad, Mr Mates and, she thought, Ms. Kutty, had all asked her If the gnevor had touched her breasts Each tIme, she saId no The only contact wIth the gnevor occurred, Ms. Versace InsIsted, when her shoulder brushed agaInst hIm as she turned to get Into her car Ms. Versace agreed that she was not denYIng that the gnevor touched her breasts because she was afraid of retalIatIOn by the gnevor When questIOned as to how well she recalled the IncIdent, Ms. Versace agreed that she dId not make a note of the IncIdent on the day It occurred or the day after She said that she selected Apnl 19 as the date It happened because she knew the IncIdent occurred after a 12-8 ShIft and on a day upon WhICh she she'd gone on to work at Centenary HospItal She also knew from her memory that the IncIdent occurred In mid Apnl and shortly after the gnevor began workIng In the umt. In order to aSSIst her In reconstructIng the day of the InCIdent, Ms. Versace Said. her Head Nurse, Ms Haddad, proVIded her WIth the schedule for the penod of tIme In questIOn. 10 ReturnIng to the details of the IncIdent, Ms Versace stated that It occurred at dusk, after sunset, In a parkIng lot wIth no secunty arrangements. Before the gnevor approached her, she testified, no words were exchanged between them. The car door was open and she was about to get In. ImtIally she said, she thought that perhaps a patIent was behInd her They do that, she said because patIents can walk around the grounds. The gnevor dId not speak. Accordmg to Ms Versace, she sensed someone behInd her When she turned she saw the gnevor standmg there He Just backed off, she said, as If he expected her to Jump In the car as he was gomg toward hIS vehIcle HIS hands were up as If to back off They were not thrust out m any threatenmg manner toward her breasts It was at that pomt, Ms. Versace reIterated, that the gnevor looked down at her breasts and said, " you have lovely breasts." ThiS comment came out of the blue, she said. It was not preceded In the prevIOus week by any such behavIOr The only personal comment that passed between them In the prevIOus week was a comment from the gnevor that had nothmg to do wIth gender or sex. Between the tIme of the mCIdent and October 1994, Ms Versace said, the gnevor did make some comments to her that made her feel uncomfortable Before her pregnancy, she used to work out. When the gnevor found out about thIS, she said, he told her that he had been a fitness Instructor and would descnbe to her dIfferent exerCIses that would help dIfferent parts of the body Ms Versace said that she found thIS uncomfortable She saId that she dId not feel II comfortable talkmg to the gnevor about exerclsmg or the body penod. Other than thIS Ms Versace saId, she dId not feel partIcularly uncomfortable workmg wIth the gneyor after the mCIdent. TheIr relatIOnship was not unfnendly As to the gnevor's comment on the followmg day, Ms Versace saId, she was not even sure Ifhe was referrmg to the mCIdent. St At that pomt, she saId, she couldn't even look at the gnevor Thereafter, Ms. Versace testIfied, she dealt WIth the matter by puttmg It behInd her and dId not begIn to feel uncomfortable workIng WIth the gnevor untIl management found out about the InCIdent m October What was uppermost m her mmd, Ms. Versace stated, was her pregnancy When asked about a senes of mCIdents dunng the summer and fall that the gnevor apparently claImed were suggestIve of a change m attItude toward hIm by Ms Versace, the WItness demed that thIS was so She mSIsted that there was no change m attitude leadIng up to the events m October Ms Versace agreed that at one pomt, Ms. Wharton had SaId to her, " we'ye got to get the gnevor It's not nght what he does He's hurt a lot of people In thIS facIhty and keeps gettmg away WIth It." She saId that she thought that thIS comment was related to an encounter between Ms. Wharton and the gnevor m AdmIttmg Counsel then asked about the motIvatIOn of Ms. CurtIS Ms Versace replied that she could not thmk of any reason why Ms CurtIS would be mterested m reportmg the mCldent to the employer The only thmg she could thInk of was that Ms CurtIS was wOrrIed about her She SaId that she 12 dId not even k.now that Ms CurtIS k.new Ms Wharton FInally when asked why she dId not tell her husband about the InCIdent, Ms Versace stated that she dId not tell hIm because he could have gotten very upset and probably would not have wanted her to contmue workIng In the umt. Upon reeXamInatIOn, Ms. Versace explaIned that she wanted to stay In the umt because she Irked the hours, she had gotten famIlrar WIth the floor and dId not want to leave It. Ms,_C1u:u_~ The next WItness to testIfy on behalf of the employer was Ms. LIsa CurtIS. She had been an R N SInce 1987, and had worked In psychIatry at Centenary HospItal SInce graduatIOn. Ms. CurtIS testIfied that Ms Versace was known to her because they were co-workers when the latter worked part-tIme at Centenary On the mght that Ms Versace told her of the InCIdent, Ms CurtIS saId, Ms. Versace seemed upset. When they were on break together, she asked Mr Versace If she was okay It was at that pOInt, she testIfied, that Ms Versace told her that when she went to her car upon leavIng Queen's St. a male staff member approached her and attempted to grab her In the parkIng lot. When secuntv came out of the bUIldIng, she was told, Ms Versace left. Upon beIng asked whether she remembered anythIng else, Ms. CurtIS replIed that she dId not. Her focus was upon Ms Versace and her beIng upset. 13 When asked whether she had spoken of the mCldent wIth Ms MIchelle Wharton. Ms CurtiS confirmed that she had. She smd that she and Ms. Wharton had graduated together from Centenmal College She dId not remember talkmg to anyone else about It. No one other than MIchelle, she testIfied, asked her about It. There followed an extensIve cross exammatIOn. When asked by counsel for the umon whether she could remember precIsely when Ms Versace related the mCldent to her, Ms CurtIS smd that she could not. She smd that she knew that It was on a mght shIft and thIS was the only mCldent related to her by Ms. Versace She could not remember whether It occurred m the spnng of 1994 When asked where Ms. Versace related the mCldent to her, Ms. CurtIS stated that the conversatIOn took place when the two of them were alone m the kItchen at Centenary HospItal She saId that Ms. Versace never came to her resIdence to dISCUSS the mCldent WIth her When they were m the kItchen, Ms. CUrtIS saId, she could clearly hear what Ms Versace smd. She confirmed that Ms Versace never told her who the male staff member was eIther that mght or later When counsel for the umon mqUIred about her recollectIOn of the detmls related to her about the mCldent, Ms CurtIS smd she could not recall If Ms. Versace smd that the male staff member grabbed her or attempted to grab her She also could not recall If Ms Versace smd the male staff 14 member spoke any words Ms CurtiS did say however that she was told that at some pOInt while this was occurnng In the parkIng lot, secunty did arnve Then Ms Versace left. She said that she remembered Ms Versace saYIng to her words to the effect that she felt secunty was gOIng to look after the situatIOn. As to the matter of reportmg the IncIdent, Ms. CurtIS demed that she encouraged Ms Versace to report It. She said that she seemed to remember that Ms Versace was gomg to report It to somebody at Queen's St. Her own concern, she saId, was that Ms. Versace was upset. At the tIme, she said, Ms. Versace was not hallucInatIng, nor was she under the Influence of drugs or alcohol As to how Ms. Wharton learned about the IncIdent, Ms. CUrtIS Said that she and Ms Wharton were fnends "We always phone each other," she Said. She testIfied that she seemed to thInk that Ms Wharton raised the subject dunng one of these telephone conversatIOns. ThIS was In the summer of 1994 She had left a message wIth Ms. Versace to have Ms. Wharton call her When Ms Wharton called, the latter expressed concern about Ms Versace and how upset she was over the IncIdent. As far as the WItness could recall, Ms. Wharton dId not Identlfv the male staff member Involved. She dId not recall tellIng Ms Wharton that Ms Versace saId that the gnevor tned to grab her or that secunty had Intervened. ] 5 Counsel for the umon then asked how Ms CurtIS thought Ms Versace mIght have told Ms Wharton about the mCldent. Ms CurtIS repl1ed that both women played baseballm a league and the conversatlOn between herself and Ms Wharton took place dunng the baseball season. She dId not thmk that thIS conversatlOn was as late as October As to when she spoke to management at Queen's St. regardmg her knowledge of the mCldent, Ms CurtIS Said that she dId not recall speakmg to eIther Mrs Kutty or Ms Haddad. She said that the first management person from Queen's St. that she recalled speakmg to was Ms. Mahoney some three weeks before she was scheduled to testIfy She said that she thought Ms Mahoney was from the Human Resources Department of the employer Other Wltne~S,.~_s DespIte all of the eVIdence regardmg Ms MIchelle Wharton's source and verSlOn of the mCldent, as well as her mvolvement m bnngmg the mCldent to the attentlOn of the employer she was not called to testIfy by eIther the employer or the umon. The next two wItnesses on behalf of the employer were Ms AlIson Stuart, the Admmlstrator of Queen's St. smce November 1991 and Mrs Anna Kutty, the Nursmg Coordmator at Queen's St. Ms, Sjuart. Ms Stuart was essentially called to offer her reasons for decldmg upon a dlsclplmary penalty of 16 a twenty day suspensIOn. Mrs Kutty was called to gIve eVidence regardIng her Involvement In the InVestIgatIOn of the Incident and her contnbutIon to the assessment of penalty Ms Stuart testIfied that she deCIded upon a penalty of a twenty day suspenSIon because the InCident Involved a verbal sexual assault and threat by one staff member upon another ThIS, she said, was very senous, contrary to government polIcy contrary to good busIness practIce and partIcularly sIgmficant where staff were workIng In the same area and would need to rely upon each other In dIfficult SItuatIOns WhIch, she Said, were all too frequent. The dISCIplIne, she Said, needed to reflect the senousness of the InCIdent and the government's absolute Intolerance of such behaVIOr In the workplace Upon cross eXamInatIOn, Ms Stuart was asked about the InCOnsIstency between the eVIdence of Ms Versace and the eVIdence of Ms CUrtIS as to what was reported to her Ms Stuart replIed that It was not uncommon for there to be some mconsIstency m relatmg a stressful mCIdent. The seventy of the mCIdent, regardless of the verSIOn, warranted a senous dISCIplInary response When counsel suggested to her that on Ms CUrtIS' verSIOn, there was a phYSIcal assault whIle on Ms. Versace's verSIon there was not, Ms Stuart responded that when she deCIded upon the disciplInary penalty she dId not rely on the touchIng She Said that she had conSIstent eVIdence of an InCIdent of an unwelcome sexual advance by the gnevor She reiterated that the 17 InCOnsistenCy between the retellIngs of the Incident was not unexpected given the passage of time and the number of people that the story had beIng through. Ms. Stuart also confirmed that there was no objectIve eVidence to show that secunty was Involved In the IncIdent. She saId that If secunty had been Involved there would have beIng an entry In the secunty log and a separate report as well A search of the records of the emplover Indicated that there was no such entry or report. She demed, however, that If secunty had not been Involved, the gravIty of the SItuatIOn would be less. MIA.J~"Jj:1J; Mrs. Kutty testIfied that she first heard of the InCIdent when she receIved a telephone call from the then local umon presIdent, Mr Mates The latter asked her If she knew that one of her staff had been sexually assaulted. When she SaId that she dId not, he SaId that he would get back to her EIther on the same day or the next day, Mrs. Kutty SaId, she receIved a call from Ms Haddad, the Head Nurse, adVISIng her that Ms Versace had confirmed that an InCIdent had taken place In the parkIng lot but dId not want to report It. About one or two weeks later Mrs Kutty SaId, Ms. Versace deCIded to come forward With a statement descnbIng the InCIdent. She told Mrs Kutty that she had not dIscussed the InCIdent WIth anyone In the hospital however, she was so upset and shaken by the InCIdent that she had dIscussed It WIth Ms. CurtIS a colleague and fnend. Mrs Kuttv stated that, accordIng to her 18 lI1VestlgatIOn, the story of the incident then traveled from Ms CurtiS to Ms Wharton, and Ms Wharton was the one who reported the inCIdent to Mr Mates Mrs. Kutty then talked WIth Ms Wharton and asked her to have Ms CurtIS contact her When Ms. CurtIS called her Mrs. Kutty SaId, she told her that Ms Versace went to her place after the inCIdent and talked about It. Mrs. Kutty then asked Ms. CurtIS to put her report In wntIng The latter agreed, saYIng she would do so after she returned to work from vacatIOn however she never did. After she had gathered all of the InfOrmatIOn together, Mrs Kutty testIfied, she deCIded to hold a heanng In order to gIve the gnevor a chance to respond. ThIS meetIng was chaIred bv Ms CIfra, a representatIve from Human Resources. The gnevor was represented by the UnIon, as reqUlred. AccordIng to Mrs Kutty, she gave the gnevor a summary of the infOrmatIOn that she had compIled regardIng the InCident. The gnevor demed that anythIng had happened. Mrs Kutty stated that she deCIded to belIeve Ms. Versace for a number for reasons FIrst, Ms. Versace dId not report the InCIdent dIrectly after It happened. ThIS IndIcated, Mrs. Kutt) Inferred, that Ms Versace was not trYIng to make up a story Secondlv, the InCident came to the attentIOn of the employer through fnends of Ms. Versace, not her ThIrdly there was no reason to belIeve from Ms. Versace's performance that she would make up such a storv FInally when she intervIewed Ms Versace the latter was stIll "kind of' shakIng 19 Upon cross eXamll1atiOn, Mrs Kutty agreed wIth counsel for the umon that when Ms CurtIS testIfied, she demed under oath that she had spoken to Mrs Kutty regardll1g the mCIdent. Mrs. Kutty saId she dId not understand why Ms CurtIS dId thIS She stated that Ms CurtIS called her, not the other way around. Dunng that telephone conversatiOn, she said, Ms CurtIS told her that the gnevor allegedlv touched Ms Versace Mrs. Kutty also agreed that m her summary of the ll1cIdent she acknowledged the mconsIstency between the verSiOns gIven by Ms. CurtIS and Ms Versace, and that she observed that Ms. Versace probably demed that she was touched by the gnevor m fear of retalIatiOn. She added that m reachll1g thIS concluSIOn, she relIed upon a statement that she had receIved from Ms. Wharton, whIch also reported that Ms Versace sard that the gnevor touched her breasts Ms Wharton, she sard, was stIll workll1g at Queen's St. Counsel for the umon also pomted out to Mrs. Kutty that when Ms CUrtIS testIfied, she demed that Ms Versace came to her reSIdence to dISCUSS the ll1cIdent. ThIS, counsel observed. conflIcted WIth Mrs Kutty's testImony regardll1g what she was told by Ms. CUrtIS on the telephone To thIS, Mrs Kuttv replIed, "I can only report what she told me on the phone" Counsel for the umon then asked Mrs Kuttv "dId It ever occur to you that Ms Versace's reluctance to come forward was because she'd Just told a story that took on a lIfe of ItS own?" Mrs Kutty replIed that thIS dId not occur to her She sard that the way Ms Versace descnbed the ll1cIdent ll1dIcated that she was belIevable Reluctance Mrs Kutty Said, IS often the case The 20 report of Ms Versace rang true she saId, and she could see from Ms Versace's behavIOr how scared she was. Mrs Kutty added that she had known Ms. Versace for the last ten years and nothIng In her performance IndIcated that she was lymg It was not so, she Said, that Ms Versace was scared because she was about to be caught out m a lIe Upon reexammatIOn, Mrs Kutty was asked whether she belIeved that Ms CurtIS was lYIng when she demed under oath that Ms Versace went to her reSIdence Mrs Kutty Said that she dId not thmk so that Instead she beheved that Ms CurtIS' recollectIOn was faulty She added that she dId not know that Ms Versace was workmg m another hospItal at the tIme alongsIde Ms CurtIS QUIte often, she Said, staff don't want the employer to know that they are moonl1ghtmg Th_e. Gneyw. The only Witness called by the umon was the grIevor He testified that he was an R N at Queen's St. and had transferred to umt 1 5 around AprIl 12, 1994 ThIS, he Said, was where he met Ms. Versace for the first tIme He said he thought that she came to the floor about three months before he dId. As With all of the staff In the umt, he testIfied, hIS relatIOns With Ms Versace were fnendlv In the first few months workmg With Ms. Versace, the grIevor Said, he did not get the ImpreSSIOn that he IntimIdated or frIghtened her Moreover he testified, she never Indicated to him any tOpIC that she would prefer he not dISCUSS WIth her 21 When he was asked whether on Apnl 19 1994 after the shift was over he sexually harassed Ms Versace the gnevor replied, " 1 dIdn't sexually harass anvbody In my whole life" He added, "1 don't know even now where she parks her car, I have never seen her In the parkIng lot and I never spoke to her In the parkIng lot." When asked whether he ever touched Ms. Versace In any fashIOn, the gnevor responded, "never In any fashIOn, I never ever came close to her In any fashIOn." The first tIme he found out about Ms Versace's allegatIOns agaInst hIm, he saId, was when Mrs Kutty called him and told him to come to the NurSIng Office for somethIng Important. ThIS was In the afternoon of October 26, 1994 At that tIme, the gnevor saId, Mrs. Kutty and Ms. M. SmIth met WIth hIm. Mrs. Kutty handed hIm a letter saYIng that a co-worker accused hIm of sexual harassment and until the InvestIgatIOn was completed, he would be suspended WIth pay When asked what kInd of a relatIOnshIp he had WIth Ms. Versace, the gnevor stated that he had a fnendly relatIOnshIp WIth her until about the end of July, 1994 ThIS, he Said, was when the tone of the relatIOnship began to change At that tIme, he apparenth had a conversatIOn With Ms Versace and a co-worker In the coffee room regardIng the College of Nurses Ms Versace had read about a case that had been before the College, and was IndicatIng that she was upset about what some nurses apparentlv were dOIng The gnevor said that he then Interjected With a reterence to hIS own expenence before the College of Nurses He Indicated that he had been 22 suspended bv the College for four months for a verbal statement and that proceedmgs before the College were dIfferent from those at arbItratlon. Elaboratmg upon what he meant by thIS, the gnevor saId that at the College the Nurse IS reqUlred to defend hImself or herself agamst an InItIal accusatIOn. In hIS expenence the gnevor SaId, If the College dIdn't get the Nurse on the mam complamt, they would get hIm or her for somethmg else At thIS pomt, accordmg to the gnevor, Ms. Versace responded that If he were not gUlltV, he would not have gotten pUnIshed. Thereafter, they both dropped the matter and had coffee A couple of davs later, the gnevor SaId, the other Nurse who had been m the coffee room WIth hIm and Ms Versace told hIm that Ms Versace stated to her that she felt uncomfortable workmg WIth somebody who m the dIstant past was threatenIng a co-worker WIth phYSIcal harm. ThIS, apparently was after Ms Versace had read the report of the gnevor's College of Nurses case very thoroughly After that, the gnevor testIfied, he tned to aVOId SOCIal contact WIth Ms. Versace beyond the nICetIes such as "good mornIng", etc It seemed to hIm that Ms. Versace accepted thIS state of affaIrs between them. The gnevor then was asked about a number of mCIdents that appeared to hIm to follo,^, III whIch he was at odds WIth Ms. Versace In one, he SaId, he was sure that Ms Versace reported hIm for eatmg hospItal food. A co-worker had told hIm so In another he SaId. Ms Versace accused hIm of leavmg medIcatIOn m the treatment room when, m fact, It had been her fault. In stIll another 23 1I1stance he saId, Ms Versace became annoyed wIth him when he seemed to her to be too hesitant In IntervenIng with a patient who apparently was bothenng an electnclan workIng on the floor After the latter two Instances had occurred, the gnevor said, he decided to ask Ms Versace whether he was dOIng somethIng to provoke her that he was not aware of Ms. Versace responded. accordIng to the gnevor, that It was not him, It was her She explaIned that she was pregnant and therefore was hesitant In IntervenIng with patients who might hurt her This led the gnevor to belIeve that the air had been cleared and that everythmg was OK between him and Ms Versace About two days later however, the gnevor realIzed that Ms Versace was, m hIS view stIll agamst hIm This occurred when the gnevor attempted to help Ms Versace correct an omission that she had made m the medIcatIOn book. Apparently, Ms Versace omitted to sign as reqUIred for medicatIOns When he attempted to brIng thiS to her attentIOn by tellIng her to look at the book, Ms Versace resisted, demandmg that the gnevor tell her why ThiS was 10 front of one of the doctors workmg on the floor Accordmg to the gnevor, Ms Versace's response was given 10 a demeanmg manner It was only when the doctor left that she once agam became fnendly toward him. Returnmg to the day when Mrs. Kutty adVised him that a sexual harassment complamt had been 24 filed agamst him, the gnevor saId that he asked Mrs. Kutty whether It was possible that she had made a mistake To him, the gnevor said, It was absolutely preposterous Ms Kutty rephed however that those types of errors were not made around the hospital After he had been suspended wIth pay for about a week, the gnevor went on, Mrs Kutt)' called hIm at home and SaId that a meetmg had bemg set up for clanficatIOn of the allegatIOns agamst hIm and that a letter would follow When he went to thIS meetmg, the gnevor SaId, he stIll felt that there had been an error Then he was told that around Apnl 19, 1994, he was alleged to have approached Ms. Versace m the parkmg lot, sneakmg up behmd her and, when she turned toward hIm, saymg, "you have lovely breasts." Accordmg to the gnevor, It was also SaId that Ms. Versace mSlsted that he was constantly trymg to be alone wIth her and attemptmg to mdulge m conversatIOns wIth her that were of a pnvate nature He also was told that, accordmg to Ms Versace, on the day after the alleged mCldent he told her that what happened the prevIOUS mght never happened. Accordmg to the gnevor one of the management people at the meetmg, Ms Borow11z, asked him If he realIzed that he was not supposed to threaten anyone The gnevor SaId that he rephed, "on top 01'11 all, I was threatemng?" To that, Ms Kuttv replIed that hIS statement to Ms Versace was a threat. The gnevor demed ever havmg made such a statement. After the meetmg concluded, the gnevor SaId, he was stunned. He did not even recall how he got 25 home Soon afterward, he saId, he learned that the allegatIOn that he told Ms Versace that she had lovely breasts was not the real story that Ms Versace was spreadmg around the hospital He did not elaborate on how he learned thiS particular InfOrmatIOn. Counsel for the employer began hIS cross exammatIOn of the gnevor With questIOns relatmg to hIS pnor employment hIStOry In the course of thIS reVIew the gnevor agreed that m 1978, West Park HospItal had reported hIm to the College of Nurses and that as a result hIS lIcense was suspended for a year It was restored In March, 1981 Thereafter, the gnevor SaId, he was employed until 1984 or 1985 by Bestvlew HospItal on MaIn St. From there, the gnevor SaId, he worked for two or three years at Baycrest HospItal and also on a casual baSIS at Carefree Lodge Both of these mstltutIOns were In Toronto Counsel then dIrected the gnevor's attentIOn to his applIcatIOn for employment WIth the employer He pomted out to the gnevor that, accordmg to the applIcatIOn, the gnevor worked from 1982 to 1986 at St. MIchael's Memonal HospItal In San Jose, CalIfornIa. To thiS, the gnevor replIed, "I must have mIxed up the dates. I dIdn't go for four years, only for two years" The gnevor then agreed that he had made thiS entry upon hIS apphcatIOn to try to hIde the fact that hIS hcense was suspended. For thIS same purpose, he agreed, he dId not enter any mformatIOn on the applIcatIOn relatIng to his employment for the penod pnor to 1982 26 When counsel suggested that the gnevor's applIcatIOn was not" true and complete", as reqUlred m the mstructIOns to applIcants, the gnevor replIed, " It was the case that the document was true and complete Was I oblIgated to put m space that was lImIted all of that stuff? Everybody puts m the expenence most favorable to hIm." At thIS pomt, counsel remmded the gnevor that the form stated that If the space was too lImited applIcants were to attach addItIOnal sheets of paper The gnevor then explamed that he was at San Jose m 1980 He SaId that he was there from 1980 to 1982, gomg back and forth. That, he SaId, was when hIS lIcense was suspended. Upon bemg questIOned further, the gnevor SaId that he was confused regardmg dates He SaId that defimtely, the first Job he had after he returned from the States was Bestvlew Counsel for the employer then asked, "so from 1982 to 1986, you weren't workmg m CalIfornIa at all?" After pausmg and hedgmg, the gnevor rephed, " yes, that's true" When counsel then asked, " so you have to agree that the declaratIOn you made on the applIcatIOn form IS false" the gnevor replIed, " m date, yes." Counsel for the employer then asked the gnevor why Ms. Versace would tell us that he told her that she had lovely breasts. The gnevor replIed that he belIeved that Ms. Versace never SaId that to Ms. CurtiS He noted that at the begmmng of July, 1994, Ms Haddad had gIVen hIm a good, fnendlv performance reVIew She SaId that she was glad that he was on the floor If Ms. Versace 27 had mentIOned anvthmg m early 1994 he claimed, the whole hospital would have known Immedlatelv It was only when the relatIOnship between him and Ms Versace started changmg, regardmg the discussion of the College of Nurses, that he SaId to himself: "now I get the pIcture" When counsel remmded the gnevor that Ms Versace SaId the mCldent happened m Apnl, 1994 the gnevor responded, " that's not true She dId not say anythIng m Apnl She SaId what she SaId m July, 1994 for reasons I've been adVIsed by counsel not to elaborate on. I have a very clear Idea." Counsel then put It to the gnevor that the mCldent happened as descnbed by Ms Versace The gnevor steadfastly demed It. Counsel then turned to the allegatIOns that were made m the meetIng WIth Mrs Kutty and the subsequent letter of dlsclplme The gnevor agreed that there was no allegatIOn that he had touched Ms. Versace's breasts. Upon reexammatIOn he SaId that two or three weeks after thIS meetmg some staff telephoned hIm to say that there was a rumour gomg around that he had touched her breasts. Also upon reexammatIOn, the gnevor was asked whether hIS applIcatIOn for employment was raIsed With hIm at any pnor tlme The gnevor replIed that It had not. Further he SaId, the employer had never raIsed WIth hIm the fact that hIS preVIOUS dISCIplIne by the College of Nurses had not bemg reported on hiS applIcatIOn form. ThIS was known to the employer he SaId, ------ --- 28 because It was raIsed m a subsequent dIsclplme m 1993, when the gnevor was suspended by the College of Nurses for four months and receIved a two dav suspensIOn from the employer based upon the same mCldent. The SubmissIOns of the Parties At the conclusIOn of the eVIdence, both counsel acknowledged that thIS case turned upon the Issue of credibilIty There could be no other way to resolve the matter than to prefer the eVIdence of eIther Ms. Versace or the gnevor over the other, both agreed, because of the dIrect conflIct between them as to whether the alleged mCldent actually occurred. Both counsel further acknowledged that there also was an Issue between them as to burden of proof Dealmg wIth the Issue of burden of proof first, counsel for the emplover submItted that the burden of proof upon the employer was SImply on a balance of probabIlltles It dId not nse to the level of requlflng the employer to prove the IncIdent wIth clear and convmcmg eVIdence, It was submItted, because the behaVIOr m question was not of a cnmmal or quasI-cnmmal nature In any event, It was further submItted, the burden of provmg the employer s case to a hIgh degree of probabllItv had been meLOn the other hand, counsel for the Ulllon submItted m a skIllful and extensIve argument that the burden of proof upon the employer was to prove the mCldent wIth clear, convmcmg and cogent eVIdence ThIS was the appropnate standard to apply, counsel submItted, where senous personal mIsconduct such as sexual harassment was alleged. Both counsel made reference to numerous cases 29 ResolutIOn of the Issues It seems to me that there IS lIttle doubt that m a case where senous personal mIsconduct such as sexual harassment IS alleged, the facts upon whIch the allegatIOn rests must be proven to a hIgh degree of probabIlIty The hIgh degree of probabIlIty reqUlred IS usually expressed by saymg that "the burden of proof on the emplover IS to satlsfy the arbItrator as to the truth of ItS allegatIOns on clear and cogent eVIdence" Re Madam VallIer ChIldren's ServIces and OntanoPublIC SerVIce Employees Uillon (1992), 25 LAC (4th) 242, at 245 (Venty) See also,Re Montgomery and Muus1ry~fCommumty and~SQClaLS_en:Lces (1987) GSB No 1048/85, at 8-9 (Samuels), and, Re fu1ard.J}LSj;hQQLIrus1e_e~QLS_cbru:1LD~1rLctJ~~0.-33_(CIllllLwacktalliLCllllliwackIe_acheLS' ASSOCIatIOn (1990), 16 LAC (4th) 94, at 117-119 (Hope) In the latter case, ArbItrator Hope dId not regard It as necessary to go beyond acknowledgmg the eXIstence of the reqUIrement of a hIgh degree of probabIlIty ld. at 117 I, too an attracted to thIS VIew It seems to me that slaVIsh adherence to adJectlves lIke "clear" or "cogent" or "convmcmg" m defimng eVIdence that WIll sho\\ a hIgh degree of probabIlIty mIght unduly cIrcumscrIbe the fleXIblllty reqUIred m asseSSIng probabllItv m the mynad of factual SItuatIOns commonly presented to an adJudIcator It IS enough that the arbItrator be satlsfied to a hIgh degree of probabIlIty as to the truth of the allegatIOns 30 ThIs bnngs me to the Issue of credIbIhty Where the eVIdence of two mterested wItnesses, as here IS m dIrect conflIct, the" problem ultlmately becomes one of asseSSIng the probabIlltles brought out by the eVIdence as a whole, wIth the obJectlve of determmmg whether or not the onus of proVIng Just cause borne by the Employer has been met." Re McGowan and Mmlstry of Commuruty and SOCial S_ervlces (1987) GSB No 1888/85, at 9-10 (Draper) Further m assessmg whether Just cause has been demonstrated to the reqUlred degree of probabIlIty, "[i]t goes WIthout saymg that where the testlmony of two Interested WItnesses IS m dIrect conflIct, It IS not necesary that the testlmony of one be found to be credible m every partIcular before It may be accepted over that of the other RecollectIOns may be faulty, events may be Imperfectlv observed, detaIls may be maccurately described." ld. at 9 In the present case, I have no dIfficulty on the eVIdence as a whole In concludIng that the employer has met ItS burden of provmg to a hIgh degree of probabIlIty that the mCldent descnbed by Ms. Versace dId, m fact, occur I cannot conclude, however, that the threat that the gnevor allegedly made on the followmg day occurred as suggested by the employer As to the mCldent, Ms Versace was far more credible than the gnevor From the outset of hIS cross exammatIOn, the gnevor appeared to demonstrate a troublmg tendency to shade hIS story accordIng to the obJectlve to be gamed. PartIcularly disturbmg was the attItude toward truth tellIng that the gnevor demonstrated when he was confronted by hIS employment applIcatIOn and the mIsmformatIOn that he had entered upon It. The gnevor cavalIerly attempted to dIsmISS 31 the senousness of thIS act by savmg, "everybody puts m the expenence most favorable to hIm" Even after havmg been caught out m thIS way the gnevor persIsted m attemptmg to slant his testlmony He fenced wIth counsel for the employer for a consIderable tIme before concedmg that rather than havmg been m CalIforma from 1982 to June 1986 as mdlcated on hIS applIcatIOn, he wasn't workmg m Cahforma at all In lIght of thIS tendencv, It was ImpossIble to credIt hIS denIal wIth any degree of veraCIty Counsel for the UnIon suggested m a skIlful submIssIOn that Ms. Versace had also been caught out In a lIe The theory that he presented was that when Ms. Versace told her story of the mCldent to Ms. CUrtiS, she was tellmg a lIe, perhaps to sensatIOnalIze some part of her lIfe She never dreamed that her story would go farther than the confines of the hospItal that employed Ms CUrtiS, Centenary Health Centre or that If it did, it would be taken up by management. For thIS reason, counsel suggested, Ms. Versace was reluctant to report the mCident and have others to whom she spoke be mterviewed by management. Her story had SImply gotten out of hand and had taken on a lIfe of ItS own. Accordmg to counsel for the UnIon, thIS theory also explamed the dIfference between the verSIOns of the story told bv Ms Versace and Ms CurtIS The story related to Ms CUrtIS by Ms Versace was far more VIVId, mvolvmg a phYSIcal touchmg of her breasts. The story Ms Versace told when she was forced to come forward down-played the touchmg to a mere comment about her breasts m a futIle effort to reduce the amount of damage that her storv mIght cause to the 32 gnc\ or Despite thIS skIlful presentatIOn b\ counsel I cannot accept hIS suggestIOn There was nothmg m the eVIdence to mdlcate that Ms Versace was capable of concoctmg such a VICIOUS he adhenng to It after severe dlsclplme had been Imposed upon the gnevor and mamtammg the lIe whIle testlfymg under oath. To be sure, Ms Versace was a reluctant complamant and a reluctant WItness, but when pressed upon cross exammatIOn, she dId not retreat from her stor) or dissemble as she eaSIly could have If she merely wanted to amelIorate the consequences of a terrIble lIe She stuck to her story In thIS regard, I also have consIdered the eVIdence of Mrs. Kuttv regardmg her knowledge of the character of Ms Versace It wIll be recalled that when counsel for the UnIon suggested to Mrs Kutty m cross exammatIOn that Ms Versace's reluctance to come forward was because she'd Just told a story that took on a lIfe of ItS own, Mrs Kutty stated, mter alIa, that she had known Ms Versace for the last ten years and nothmg m her performance mdlcated that she was lymg Mrs Kuttv stated that reluctance m commg forward WIth such sexual harassment complamts was often the case I am convmced that Ms Versace s reluctance to come forward emanated. as she testIfied, from a deSIre to put the matter behmd her and not from the motIve suggested by counsel There certamlv were dIfferences m the verSIOns of the mCldent descnbed by Ms Versace and 33 Ms. CurtiS Ms CurtIS saId there was a grab or attempted grab Ms Versace Said there was not. Ms CurtIS said that secunty was mvolved, Ms. Versace SaId they were not. Ms CurtIS Said that Ms Versace wanted to report the mCIdent, Ms. Versace SaId she dId not. I am convmced to a hIgh degree of probablhty, however, that these dIfferences dId not anse out of a deSIre on the part of Ms Versace to lIe exaggerate or embellIsh when speakmg to Ms CurtIS they arose out of the emotIOn-charged CIrcumstances m WhIch Ms CurtIS learned of the mCldent and the passage of tIme between thIS encounter WIth Ms. Versace m Apnl and the report of the mCldent m October 1994 Ms. CurtIS testIfied on dIrect exammatIOn that all that she remembered was that Ms. Versace told her that when she went to her car upon leavmg Queen's St. a male staff member approached her and attempted to grab her m the parkmg lot. When securIty responded, Ms. Versace left. She SaId that she dId not remember anythmg else because her focus was upon Ms. Versace and her bemg upset. It seems more than eVIdent from thIS that Ms. CurtIS was not focused upon the detaIls of the mCIdent beIng related to her by Ms Versace She was, mstead, focused upon the fact that Ms Versace was upset. Her mam mterest was m calmmg her fnend and domg what she could to help her overcome whatever had upset her In these CIrcumstances, It would not be unusual to be somewhat cloudy m her recollectIOn of the detaIls bemg related to her 34 Added to thIs was the passage of tIme Ms. CurtiS was not called upon to relate the story to management at Queen's St. untIl several months after Ms Versace told her about the mCldent. There seems to be lIttle doubt that m the mtenm, Ms CurtIS had related the story to her fnends perhaps mcludmg Ms Wharton, the person who ultImately conveyed the story to Mr Mates Common expenence mdlcates that when a story IS told and retold over a number of months, there IS a tendencv for It to change m some of ItS respects Certam facts may tend to become embellIshed and others down-played or omItted altogether ThIS IS a phenomenon of memory, havmg nothmg to do WIth the abIlIty or deSIre of the WItness to speak the truth. Moreover, the eVIdence seemed to mdIcate that Ms. CurtIS had some dIfficulty m recallmg events For example, on bemg asked upon cross-exammatIOn when she spoke to management at Queen's St. regardmg her knowledge of the mCldent, Ms CurtIS SaId that she dId not recall speakmg to eIther Mrs. Kutty or Ms. Haddad. She dId not recall speakmg to anyone from management more than three weeks before she was scheduled to testIfy There was no doubt from the eVIdence entered at the hearIng that, mdeed, Ms CurtIS had spoken to Mrs Kutty by telephone dunng the course of Mrs. Kutty's mvestIgatIOn. Perhaps the source of some of the mconslstencles between the verSIOns of the story told by Ms Versace and Ms CurtIS mIght have been better explamed If Ms Wharton had bemg called to testIfy From the eVIdence, she was an avaIlable WItness. She stIll works at Queen s St. She submItted a statement dunng the mvestlgatIOn. It was she who brought the matter to the attentIOn 35 or Mr Mates Accordmg to Ms CurtIS' recollectIOn, Ms Wharton dId not learn of the story from Ms CurtIS but raised It herself m a telephone conversatIOn the two had together after apparentlv learmng It from Ms Versace If thIS were so Ms. Wharton's eVIdence could have had an Important beanng upon the Issue of credlbllItv Nevertheless, she was not called to gIve eVIdence As It IS, I am satIsfied to a hIgh degree of probabIlIty on the eVIdence as a whole that on the evemng of Apnl19, 1994 the mCldent occurred essentlally as descnbed by Ms Versace m her testImony I find that on that evenmg, the gnevor approached Ms. Versace as she was entenng her car m the parkmg lot and SaId to her, "you have lovely breasts." ThIS was an unwelcome verbal sexual assault of a very senous nature I cannot conclude, however, that on the day after the mCldent the gnevor threatened Ms. Versace, WIth words to the effect that, "nothmg happened last mght, nght?" On thIS aspect of the case, Ms Versace's eVIdence was eqUIvocal She saId upon cross eXamInatIOn that she was uncertam whether the gnevor was even referrmg to the mCldent of sexual harassment when he made the statement. She also mdlcated that when she SaId that she felt threatened b) the gnevor she was not referrmg to thIS statement but to other thIngs she had heard about hIm on the floor EVIdence of thIS nature falls far short of convmcmg me to the reqUISIte hIgh degree of probablhtv that a threat. mdeed, was made 36 ThIs bnngs me to the questIOn of dlscIplInarv penaltv The gnevor receIved a twenty da'v suspenSIOn for the verbal sexual harassment and the threat. The threat, however has not been proven and as a result, there must be a reductIOn In penalty In consldenng the degree to which the penalty should be reduced, I have borne m mInd the fact that the verbal sexual harassment was a very senous matter partIcularly where, as here, staff must work In the same area WIth each other and need to rely upon each other In dIfficult SItuatIOns whIch frequently anse In psychlatnc care settmgs There seems to be lIttle doubt that when Ms Stuart assessed the penalty, the pnnclpal baSIS for the suspenSIOn was the verbal sexual harassment. With thIS, I agree The threat was a mInor component of the baSIS for dISCIplIne Accordmgly, a reductIOn m the suspenSIOn of five days would seem approprIate to reflect the faIlure of the employer to prove thIS aspect of ItS case In the result, then, It IS awarded that the dlsclplmary penalty be reduced from a twenty day suspenSIOn to a fifteen day suspenSIOn. The gnevor IS entitled to be reImbursed for all wages and benefits that were lost bv VIrtue of beIng reqUIred to serve mstead ~nty day suspenSIOn. Dated at Toronto Ontano thiS 26 day of September, 199~ !~ / ~---'- -- I , r.... -...---- .r I -f,: I , 7 1/ I ,I I R. J Roberts, VIce ChaIr I I