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HomeMy WebLinkAbout1999-2058.Houle.02-01-17 Decision ~~~ om~o EMPLOYES DE L4 COURONNE \ ~~! ~::~:~E DE L ONTARIO COMMISSION DE ~~... SETTLEMENT REGLEMENT ~_II'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONEITELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#2058/99 UNION# 00A219 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (Howe) Grievor -and- The Crown m RIght of Ontano (Mimstry of CorrectIOnal ServIces) Employer BEFORE Barry B FIsher Vice-Chair FOR THE GRIEVOR Nelson Roland Counsel Ryder Wnght BlaIr & Doyle Barnsters and SohcItors FOR THE EMPLOYER AJ amu BoardI Staff RelatIOns Officer Mimstry of CorrectIOnal ServIces HEARING June 22, November 1, November 2, December 14, December 15, 2000' April 17, Apnl 18, Apnl 26, Apnl 27 2001 DECISION ThIs case mvolves the dIscharge of a ClasSIfied C02 who was employed at the Sault Ste Mane JaIl for some 14 years. The gnevor was termmated because It was alleged that he sexually harassed and sexually assaulted a female unclaSSIfied CO, who shall be referred to as Ms X. The gnevor does not deny that there was sexual contact between hIm and Ms X, however he claims that It was all consensual and therefore neIther constItuted sexual harassment or sexual assault. ThIS case mvolves to a large degree an assessment of the credIbIhty of the gnevor as compared to the credibIhty of Ms X. There IS httle mdependent confirmatIOn of eIther partIes story Other than Ms X dId proVIde some eVIdence that she had complamed m a general way about the gnevor s actIOns before the formal complamt process was commenced on June 30, 1998, to a large degree thIS was a claSSIC case of "he SaId, she Said" As thIS case turns almost completely on my assessment of credIbIhty, I have chosen rather than go through a long rendItIOn of the facts, to mstead focus pnmanly on the Issue of credibIhty The speCIfic acts whIch the gnevor IS accused of are as follows 1 Sexual assault on June 18, 1998 ThIS consIsted of phYSIcally forcmg hImself agamst Ms X by holdmg onto her arm and haIr whIle hckmg and kIssmg her Dunng thIS same epIsode he IS accused exposmg hIS erect pems and pushmg It agamst her thIgh. ThIS was the mCIdent whIch Immediately proceeded the filmg of the formal complaInt whIch led to the gnevor s suspenSIOn and subsequent termmatIOn. 2. In 1994 or 1995, the gnevor IS accused of commg up to Ms X, who at the tIme was sIttmg m a chau, and straddlmg hIS leg over her so that he was almost sIttmg on her lap 3 In 1994 or 1995 the gnevor IS accused of agam straddlmg over Ms X s chaIr and kIssmg her whIle she was sleepIng. She awoke at that tIme and swung at hIm With the book she had m her hand. 4 On another occaSIOn, the date of whIch IS not certam, the gnevor IS accused of pmnmg Ms X agamst the wall of the mop locker Ms X pushed hIm away and that was the end of the mCIdent. 2 5 SomeTIme m 1996, the gnevor IS alleged to have pmned Ms X agamst a wall m the laundry area and forced a kiss on her 6 On another occaSIOn, the date of whIch IS not certam, the gnevor IS alleged to have pmned Ms X's arms to a wall when she reached up to retneve some Items whIle at the same TIme pushmg hIS pelVIS mto her rear At the same tIme he had hIS hands around her WaISt. There are certam facts whIch came up m the heanng whIch each SIde added to the credibIhty of theIr Witnesses I felt however that these facts were ultImately of a neutral effect for the follOWing reasons 1 The gnevor s Wife worked as a COm the same JaIl as the gnevor and Ms X. On the one hand one could say that thIS means It IS less hkely that the partIes would engage m a consensual sexual relatIOnshIp under the spouse s nose whIle on the other hand what type of fool would take the nsk of sexually harassmg a co-worker when your spouse works m the same bmldmg. Both actIOns seem to me to be equally foohsh. 2. The " relatIOnshIp" never went outSIde the workplace On the one hand thIS makes It look less hkely that It was non-consensual because otherWise It would hkely have blossomed outSIde the workplace On the other hand It E equally conceIvable that the relatIOnshIp was nothmg other than one of sexual flIrtatIOn and mcreasmg sexuahty With absolutely no romantIC overtones. The thnll of carrymg on at work m secret under the very noses of others may well have been a part of the appeal to the relatIOnshIp 3 The fact that she dId not file a formal complamt untIl after the June 1 gh mCIdent, whereas the preVIOUS mCIdents would mstItute sexual assaults. The gnevor claIms that thIS eVIdence confirms the fact that she consented to at least the earher acts, otherWise she would have complamed. On the other hand Ms X testIfied that she felt uncomfortable m fihng a formal complamt for a number of reasons, largely based on a behef that her complamts would not be taken senously and that her abIhty to stay at work would be greatly reduced If she filed such a complamt. Both of these arguments have ment thus the failure to complam earher m a formal fashIOn does not aSSIst me m determmmg who IS tellmg the truth. I Will now reVIew the vanous Issues of credibIhty of both Ms X and the gnevor 3 Ms X's Credibility Issue #1 The most dIstressmg matter m thIs case came up dunng the exammatIOn of Ms X With respect to a settlement agreement that Ms X had sIgned With the Mimstry By way of background, It should be noted that Ms X had filed a gnevance claImmg that the Mimstry had faIled to take adequate measures to protect her from sexual harassment by the gnevor She was represented by counsel for OPSEU m that gnevance, however by counsel than Mr Roland. Pnor to my mvolvement m thIS case, Ms X's gnevance had begun to be heard by Vice-Chalf Carner FlOWing from that heanng, the partIes had reached a partial settlement of Ms X s gnevance on October 19, 1999 m whIch they resolved certam monetary Issues regardmg Issues such as lost wages, medIcatIOn costs, therapy and counselmg costs and tIme off. ThIs settlement expressly provIded that the Issue of compensatIOn for pam and suffenng remamed outstandmg. ThIS was further set out m a ruhng by Vice ChaIr Carner dated May 23, 2000 The Mimstry then brought a motIOn before me to have the remammg Issues of Ms X s gnevance consohdated With the Gnevors dIscharge gnevance At that tIme I was advIsed and provIded a copy of the partial settlement outhned above After some dIscuSSIOn, thIs consohdatIOn was ultImately agreed to by all three partIes on October 6, 2000 ThIS heanng was scheduled to commence on November 1, 2 and 3 m Sault Ste Mane When I arnved I was told that Ms X had resolved her gnevance With the Mimstry She was then called as the first Witness for the Mimstry Her first day of testImony was November 2,2000 Her cross-exammatIOn began on December 15,2000 In the course of the cross-exammatIOn Mr Roland, counsel for OPSEU, requested productIOn of the final settlement between the Mimstry and Ms X. As Vice Chair I had concerns about the effect thIS would have on Ms X's nghts to pnvacy, as I was adVIsed that the settlement was confidential and could not be revealed to thIrd partIes unless reqUIred by law I gave Ms X an OppOrtunIty to consult With her OPSEU lawyer, whIch she dId. She mdIcated that she was takmg no pOSItIOn on thIS Issue The Mimstry then prOVIded both Mr Roland and the Board With copIes of the settlement. The relevant prOVISIons m the final settlement was as follows . The settlement was dated October 30th, 2000, two days before the commencement of the eVIdence bemg heard m thIS case . Ms X would reSIgn her employment With the Mimstry effectIve November 3, 2000, whIch was the thIrd scheduled day of the heanng. . Ms X would receIve a very substantial tax-free payment by way of settlement of her claIm for pam and suffenng. The settlement dIscloses the 4 exact amount of the payment however for the purposes of thIS award I need not dIsclose the actual amount. . The payment of the amount was to be on of before December 18, 2000, whIch was after all the prevIously scheduled dates for thIS heanng. It was well understood that Ms X was to be the first Witness m thIS heanng. . The settlement contamed the follOWing prOVISIon. 5. This settlement is conditional on the Grievor being available, as required by counsel for the Employer, to give evidence before the Grievance Settlement Board in the matter of the grievance of Brad Houle. I then allowed the Mimstry to mterrupt the cross exammatIOn of Ms X to lead eVIdence on thIS settlement. Ms X testIfied that she actually SIgned the settlement not on October 30th as set out m the agreement, but rather on the first day she testIfied, whIch was November 2, 2000 She SaId that she was paId the momes about two weeks later On cross exammatlOn, she SaId the first tIme that she had heard of or read paragraph 5 of the agreement was when she SIgned the settlement. She Said that they had arnved at a settlement figure Just before she took the Witness stand and that she SIgned the settlement document Just before she took the stand. She then SaId that she SIgned the settlement document on November ft but actually testIfied on November :td In fact Ms X was at the heanng on Novemberlst, however we dId not proceed that day because of the absence of the gnevor The gnevor showed up on November 2, With a vahd explanatIOn for hIS absence on November rt, and Ms X began her testImony on November 2, 2000 She also testIfied that she knew that she would not receIve the settlement momes unless she testIfied m thIS case It should be noted that Ms X testIfied m chIef on November 2 and 3 and then was cross-exammed on December 15,2000 When she retook the stand on Apnl 17, 2001 the only tOpIC that was covered was the Issue of the settlement agreement. Then her reply eVIdence was led. The settlement called for payment of the momes by December 18, 2000 By thIS pomt m tIme Ms X had testIfied m chIef and completed the overwhelmmg bulk of her cross exammatIOn. It IS Important to note that the partIes had agreed on five heanng dates m thIS case on June 22, 2000, those dates bemg October 10, November 1,2,3, and December 14 and 15 In other words, the payment of the substantial amount to Ms X appears to have been tImed so that It would occur at a tIme when the partIes then beheved the case would be fimshed, or at least her testImony would be completed. The arrangement makes It appear as If the Mimstry was tymg the payment of the momes to Ms X to the obhgatIOn of Ms X to testIfy and that Ms X was fully aware of the bargaIn. Of course Ms X demed that the payment m any away affected her testImony The Mimstry pomted out the settlement agreement only reqUIred Ms X to testIfy m these 5 proceedmgs and not to testIfy m any set manner I would have thought that If all one wanted to do was assure the attendance at a GSB heanng of a key Witness then sImply requestmg the Vice ChaIr to Issue a Summons to Witness would have sufficed. I can therefore see no vahd reason for makmg the payment for pam and suffenng to Ms X condItIOnal on her testIfymg agamst M Houle I beheve that many people, If they were to be paid a substantIal amount of money to testIfy m a contested heanng, would eIther conscIOusly or subconscIOusly try to gIve eVIdence m such a matter so as to please the person paymg them the money Therefore, the effect of thIS apparent payment for testImony arrangement has caused me to look very closely and With a skeptIcal attItude towards the credIbIhty of Ms X, as she had a defimte and sIgmficant economIC mcentIve to tell the story m the way that she dId. Issue #2 There were certaIn dIscrepancies m Ms X s tellmg of the June 18th, 1999 mCIdent. The June 18th mCIdent took place on a stair landmg at the back of the JaIl. The landmg has two eXIts at ground level, Door 56 to the rntsIde and Door 55 to the cell block. Ms X was adamant that her first encounter With the gnevor m relatIOn to the mCIdent was when she was down the staIrs, below ground level With the outSIde door 55 open when she heard a door close and then saw the grEvor standmg at the top of the staIrs. She assumed that he had come through the mtenor door 55 and then closed It behmd hIm. For her verSIOn to be pOSSIble, doors 55 and 56 would have to be open at the same nme All partIes agree that thIS IS not phYSIcally pOSSIble unless Control hIts an overnde button. However, m her report October 22 1998 to the Independent InvestIgatIOns Umt she clearly stated, " I was outSIde when I first saw hIm. I looked over and there he was standmg m the 56 doorway" Thus m the first tellmg of the story she SaId she was outSIde the bmldmg when the gnevor first appeared on the landmg but then she testIfied that she was at the bottom of the staIrs m the bmldmg. When confronted With thIS contradIctIOn she reIterated that her present testImony was the truth and that her statement to the IIU was wrong. At first thIS struck me a mmor dIscrepancy of httle Importance, however It concerned me that when confronted With the clear contradIctIOn, she confirmed the latter story and SaId that her earher story was wrong. However after further testImony It became clear that Ms X was trymg very much to show that she had neIther mVlted the gnevor to help her that day nor taken any actIve part m havmg hIm aSSIst her The gnevor s testImony was that she had called hIm on the mternal phone that afternoon at hIS post and told hIm to come and help her She testIfied that she dId not speak to the gnevor on that occaSIOn, rather she called control on the mternal phone and they opened up outSIde door 55 The gnevor s testImony IS that he appeared at door 56 after havmg receIved a call from Ms X, and saw that she was unloadmg the van. He spoke to her through the glass Window m door 55 and told her to close extenor door 55 so that he could tell Control to open door 56 She closed the extenor door 55, and then the gnevor radIoed Control to open door 56, whIch Control could do With no problem as door 6 55 was closed. He then came through door 56, closed It, then radIoed Control to <pen extenor door 55, whIch they could do With no problem as the other door 55 was now closed. Thus the dIfference IS the two verSIOns becomes Important because the gnevor S verSIOn of the mCIdent IS that Ms X both mVIted hIm to help her and assIsted hIs entry to the staIrwell, whereas Ms X verSIOn was that she neIther mVIted the gnevor to assIst her nor dId she assIst hIS entry There IS no dIspute between the partIes that once the gnevor dId appear m the staIrwell, he was not asked by Ms X to lea\-e and that he dId m fact for some tIme assIst her m bnngmg m boxes Accordmg to the gnevor S verSIOn, no unusual procedure on door lockmg or overndes would have to be mstItuted as all the proper procedures were followed. However m order for Ms X S verSIOn to be correct, the Control booth must have receIved a radIO message from the gnevor to open door 56 at a tIme when door 56 was open, a procedure whIch would have reqUIred an overnde We then heard testImony from Dan St Germam an unclaSSIfied C 0 With servIce at the SSM JaIl smce about 1997 On the day m questIOn, June 18,1999, he was workmg as one of two Control Officers m the Control Module He had no recollectIOn of the gnevor requestmg that door 55 be opened, however that IS not surpnsmg, as thIS would have been an entIrely routme request. However, he confirmed the rule that you would never open both doors 55 and 56 at the same tIme Without takmg certam precautIOns, hke gettmg permISSIon from the IC, lockmg down the adJacert cell area (whIch at that tIme of day would not have locked down) and reqUIre that a C 0 be statIOned at each door He confirmed that on that day he dId not allow both door 55 and 56 to be opened nor dId he see the other Control Officer allow such a process, whIch he hkely would have seen as It mvolves dIfferent coloured hghts and the use of the radIO In fact, despIte hIS numerous shIfts m Control, he has never seen door 55 and 56 open at the same tIme In summary, the gnevor s verSIOn IS more conSIstent With standard operatmg procedure at the JaIl than that of Ms X. For Ms X s verSIOn to be even possible, let alone probable, there would have to be some eVIdence of an overnde m the Control booth. The only eVIdence that I heard on thIS Issue denIeS any possibIhty that such an overnde took place I therefore find that the Gnevor s verSIOn IS more credible, m that the reason he was at the back entrance at that tIme was because he had been requested to be there by Ms X and that she aSSIsted hIS entry to the stairwell by closmg extenor door 55 Issue # 3 Ms X tesnfied that after the mCIdent m the mop locker (Item #4 above) she spoke to Angle Rankm, Deputy Supenntendent at the SSM JaIl She Said that she made a complamt to Ms Rankm m whIch she IdentIfied the gnevor by name but dId not proVIde 7 detaIls of the complamt. Ms Rankm saId that she should speak to her Umon representatIve Ms Rankm s testImony of thIS mCIdent was SImIlar m that she remembers that Ms X came to her and :il.1d that she was haVIng a hard tIme With some staff at work. Ms Rankm could not recall however If Ms X mentIOned anyone m partIcular She recalls advIsmg Ms X to talk to her unIon, to whIch Ms X rephed, "You know what they are hke" We also heard testImony from Kathy Maccarone, Actmg ShIft SupervIsor She testIfied that sometIme m 1997 Ms X approached her and asked her how she would go about fihng a complamt If someone was harassmg her Ms Maccarone SaId that she dId not have to put up With It and told her Ms Rankm was a WDHP adVIsor Ms X told her that It was the gnevor who was harassmg her, but dId not gIve any detaIls. As neIther of these Witnesses were challenged on theIr testImony, It IS clear that at sometIme pnor to the June 18th mCIdent Ms X complamed m a general way that she felt she was bemg harassed by the gnevor ThIS would be confirmatory of the VIew that the sexual encounters were non consensual The Grievors Credibility Issue #1 The gnevor provIded hIS explanatIOn for why Ms X would file a complamt of sexual harassment when she knew that all theIr encounters were consensual. His theory can be best summed up by the phrase " Hell hath no fury hke a woman scorned" The gnevor s testImony was that they were " makmg out" on the landmg on June 18th She then expressed concern that they were spendmg too much tIme down m the landmg and that people would start askmg questIOns soon. She told hIm that she dId not want " thIS It go too far" The gnevor responded that she was not to worry because It would not go too far as he dId not want to have sex With her, he just wanted to " play" Up untIl that pomt she had been very WIlhng and receptIve but as soon as he SaId the "no sex" comment she abruptly pushed hIm away, stormed up the staIrS She was" very pIssed off' In other words the gnevor s theory IS that Ms X was so upset about bemg rejected sexually by hIm that filed a complamt agamst hIm both to cover the shame of bemg rejected and to punIsh hIm for ills leadIng her on to behevmg that theIr relatIOnshIp could grow mto somethmg more meanmgful. The Mimstry submItted that thIS explanatIOn IS so bIzarre that It IS Itself eVIdence of the gnevor s wrongdomg. 8 ThIS aspect of the case raIses some mterestmg arguments. On the one hand, the gnevor s explanatIOn sounds hke an arrogant statement of a bully and a harasser who, havmg sexually assaulted the VIctIm, now wants to further humIhate her On the other hand I do not purport to be an expert m understandmg the human psyche and ItS response to rejectIOn. I cannot say that It IS Impossible or even unhkely that a person m the SItuatIOn of Ms X would not feel horrible and rej ected by the cruel and hurtful comments of the gnevor that he dId nct want to have sex With her and that he only wanted "to play With her" It IS not mconceIvable that thIS rejectIOn could manIfest Itself m Ms X convmcmg herself over tIme that she was not sexually rej ected, but rather that she was sexually harassed. Therefore, although I am skeptIcal of the gnevor s explanatIOn, I cannot say that It IS totally Without ment. Issue #2 The gnevor testIfied that the next encounter he had With Ms X after the June U~:h mCIdent was when he called her at home becaus e he SaId that he had heard that she had left early on June 30th ThIS was the day that Ms X first met With Deputy Supenntendent Rankm and told her about the mCIdent on June 18th He had also heard at the same tIme that Ms X had been seen talkmg to Angle RankIn, the Deputy Supenntendent. He SaId he called her from the Control Booth where her phone number was hsted. He admIts he had never called her at home before, even though they had, accordmg to hIm, been havmg a consensual sexual type relatIOnshIp for years. He called her and asked If she had left early on June 30th because of problems With door 40 She SaId no He then asked her " Are you stIll pIssed off With me')" She SaId yes. He told her that he had heard that she was seen talkmg to Angle RankIn and asked whether hIS name had come up In that conversatIOn. She SaId yes. He then asked whether or not the comments about hIm were detnmental to hIm. She SaId they were He SaId he was sorry for hurtIng her feelmgs and asked If they could stIll be fnends. She SaId OK, but m an mdIfferent tone Ms X's testImony on of thIS phone call IS very SImIlar to that of the gnevor s. The obVIOUS Issue IS why would the gnevor worry about the fact that Ms X had been talkIng to the Deputy Supenntendent some 12 days after the June U~:h mCIdent') Why would he assume that he was the subject of that conversatIOn and why would he assume that the subject matter of the conversatIOn would adversely affect hIm') When asked thIS very questIOn on cross exammatIon the gnevor rephed that he called her because he knew that she was stIll pIssed off With hIm he was worned that "she would make up somethmg agamst me like that I took a pass at her or that I locked her up m the staIrwell" 9 It would seem that thIs exchange IS very credIble eVIdence that the gnevor knew that he had commItted a sexual assault on Ms X and that he was trymg to do some damage control His verSIOn that he was so worned that she would he to the Mimstry about theIr relatIOnshIp and therefore for the first tIme ever he phoned her at home on June 3dh IS SImply not behevable He dId not fear that Ms X would he to the Mimstry, rather he feared that she would tell the truth to the Mimstry Moreover m hIS testImony before the Board IE confirmed that thIS conversatIOn took place on June 30th, however m hIS letter to the lill of September 22, 1998 he clear16' stated that thIS phone call took place on June 18th, the day of the mCIdent, not June 3d \ the day the complamt was first brought to the attentIOn of management. In other words, when he first told hIS story he tned to mIslead the lID mvestIgator mto tellmg her that the phone call to Ms X was well before he had any Inklmg that Ms X was filmg a complamt about hIm. ThIS IS because he understood at the tIme how damagmg It would appear to have phoned her only after he heard that she had already spoken to management. However, at the arbItratIOn heanng, he had to tell the truth about the date of the call because he knew that re would otherwIse be found to be lymg on an Issue upon whIch he could easIly contradIcted. Conclusion ThIS was an exceedIngly dIfficult case as cases of credibIhty often are It was espeCially dIfficult because of the Issue of the payment of money to Ms X bemg made condItIOnal on her testIfymg m thIS arbItratIOn. In any event, notWIthstandmg my deep concern over thIS Important Issue of arbItral process, ultImately I am reqUIred to assess the eVIdence and make a deCISIon. I Wish to emphaSIze that I frankly found the credIbIhty of both the gnevor and Ms X sadly wantmg, therefore I have made my deCISIon largely based on eIther on facts not m dIspute (1.e the gnevor s phone call to Ms X of June 30th) or on the venficatIOn by thud party Witnesses (I e the eVIdence of Kathy Maccarone that Ms X complaIned about beIng harassed by the gnevor well pnor to the June 18th, 1998 mCIdent was mconsIstent With the gnevor s contentIOn that thIS was at all tImes a completely consensual arrangement) After careful conSIderatIOn, I find that the employer has proven, on a balance of probabIhtIes, With clear and convmCIng eVIdence, that the gnevor commItted the acts referred to m the first part of thIS award, that IS that he sexually harassed and sexually assaulted, Ms X, a co- worker 10 With respect to the Issue of whether termmatIOn was the appropnate penalty, I take mto account the followmg mformatIOn. 1. The gnevor s servIce IS about 14 years 2. The gnevor s work record, remembenng that there IS a 3-year sunset clause, IS dIscIplme free 3 Followmg hIS dIsmIssal, the gnevor s marnage broke up even although he hImself admIts that thIS would have happened anyways as he told hIS Wife that he had a sexual relatIOnshIp With another woman. 4. He has suffered an economIC loss, and although he IS reemployed, It IS at a lower pay A large part of hIS economIC woes are due to hIS martial spht up, whIch presumably would have occurred even If he was not termmated. I find that these factors are not suffiCIent to offset the fact that termInatIOn IS an entIrely proper response to a findIng of sexual assault upon a c(}worker The gnevance IS therefore dIsmIssed. Dated at Toronto thIS 16th day of January, 2002. Barry B Fisher, Vice ChaIr 11