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HomeMy WebLinkAbout1999.0112.Levesque.01-05-07 Decision ~~~ o@~o EA1PLOYES DE LA COURONNE _QJ_L i~~i~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#112/99 113/99 114/99 115/99 144/99 UNION#99C138 99C139 99C140 99C141 99C310 99C151 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (Levesque) Gnevor - and - The Crown m Right of Ontano (Mimstn ofTransportatlOn) Employer BEFORE RandI H. Abramsk, Vice-ChaIr FOR THE Peggy SmIth GRIEVOR Counsel Elhot, SmIth Bamsters and SohcItors FOR THE Len Marv, Semor Counsel EMPLOYER Legal ServIces Branch Management Board Secretanat HEARING DA TEDS January 28 2000 Apnll0 2000 June 15 2000 June 16 2000 July 26 2000 July 27 2000 September 14 2000 September 15 2000 November 9 2000 November 10 2000 December 14 2000 2 AWARD ThIS case mvolves the dIscharge of an employee for allegedly filIng false allegatIOns of sexual assault, sexual harassment and sex dIscnmmatIOn agamst a co- worker The Mimstry concluded that the gnevor filed the complamt "m bad faith" m order to secure a "Job/upgrade" In addItIOn, the Mimstry determmed that the gnevor had "engaged m mappropnate behavIOur m the workplace whIch contnbuted to a pOIsoned work envIronment." For these reasons, the gnevor was dIscharged. The Issue before me IS whether the Employer had Just cause to dIscharge the gnevor FACTS A. General Background The gnevor Collette Levesque, began workmg for the Mimstry of TransportatIOn on October 6 1980 In Apnl1995 she went off on maternIty leave In August 1995 dunng her leave her Customer ServIce Clerk, OAG-7 posItIOn was relocated from DownSVIew to St. Cathennes She moved wIth her famIly to St. Cathennes and returned to work m February 1996 Two months later m Apnl 1996 her posItIOn was surplused and she was dIrectly assIgned to the posItIOn of BIlmgual Word Processmg Operator OAG-7 m the Carner LIcensmg Office of the ComplIance Branch, whIch had not yet relocated to St. Cathennes It was stIll located m DownSVIew and would contmue there untIl the summer of 1996 Ms Levesque accepted the assIgnment, but gneved because of the commute reqUIred. Her gnevance was settled at Stage 2, wIth the Employer agreemg to provIde her wIth a temporary assIgnment, begmmng May 13 1996 supplymg 3 receptIOmst/secretanal/clencal support In St. Cathennes untIl such tIme as her posItIOn moved to St. Cathennes In the summer of 1996 When Ms Levesque arnved In St. Cathennes, the temporary Job she was placed In was a GeneralIst Support AssIstant PosItIOn, OAG-7 In the Enforcement EffectIveness & Improvement Office of the ComplIance Branch. She entered Into a secondment agreement for the penod of May 13 1996 to July 19 1996 a penod of ten weeks, dependIng on the relocatIOn schedule Under the category "ActIOn Plan (DutIes/Tasks)" were the words "Data Entry for Safety Net; Office Support." The "ObJectIve of AssIgnment" was lIsted as "to provIde general onentatIOn to ComplIance Branch programs, Issues, data base management and office procedures" Her manager was to be Mr Mac Carbert, Manager Enforcement EffectIveness & Improvement Office The day before she started the new Job Ms Levesque met wIth Mr C arb ert. He explaIned that the Job Involved data entry In the form of InputtIng InSpectIOn reports In connectIOn wIth the Safety Net Program and that a co-worker Barne Rowland would teach her Her Job would also Involve admInIstratIve support In terms of ordenng supplIes and so forth. Mr Carbert Introduced her to the employees In the umt, IncludIng Mr Rowland, Dave Allen, and others The folloWIng day her first on the Job Ms Levesque testIfied that Mr Rowland got the computer ready for her sat wIth her and showed her how to Input the reports She stated that she took notes regardIng how to do thIS 4 Mr Carbert remaIned the gnevor's manager untIl he left In July 1996 At that tIme the next phase of the relocatIOn to St. Cathennes took place, IncludIng her home posItIOn of BIlIngual Word ProcessIng Clerk. Noone In management, however dIscussed returnIng Ms Levesque to her home posItIOn. Nor dId she dISCUSS returnIng to that posItIOn WIth management. ThIS IS because In June 1996 Mr Carbert told her that If she had the ImtIatIve to learn Mr Rowland's Job she had a good chance of advancement In the future because Rowland would be retmng In a couple of years ThIS conversatIOn, partIcularly Mr Carbert's suggestIOn that she mIght advance If she learned Mr Rowland's Job was very sIgmficant to the gnevor 2. The Grievor's Allegations From the penod October 1996 untIl August 20 1998 the gnevor alleges that she was the vIctIm of sexual harassment, sexual assault and sex dISCnmInatIOn by Mr Rowland. By category the gnevor alleges as follows A. Sexual Assaults 1 That whIle attendIng a course In Maryland In June 1997 Rowland forcefully pulled down her bIkIm top and pulled open her bottom. 2 That In January 1998 whIle at a traInIng program In CentralIa, Rowland physIcally tned to force her Into hIS bedroom, and that on the return tnp he proposItIOned her to sleep wIth hIm 3 That In May and In June 1998 Rowland placed hIS foot agaInst her crotch whIle she was bent down to plug In a computer cable 4 That on August 20 1998 Rowland tned to grab her breasts 5 In terms of sexual harassment and sex dISCnmInatIOn, the gnevor alleges as follows 1 In October of 1996 Rowland's humIlIated and IntImIdated her after she made an error on the computer whIle makIng entnes Into the "shIpper overload proJect." 2 That dunng the Maryland tnp Rowland proposItIOned her wIth the promIse of a Job upgrade 3 That dunng the Maryland tnp Rowland compelled her to go to dInner wIth hIm after the "bIkIm IncIdent" and that she felt oblIged to accompany hIm each evemng for dInner whIle they attended the course In Maryland. 4 That Rowland mIsled her about the course content for the traInIng seSSIOn In Maryland. 5 That In July 1997 Rowland dId not allow her to partIcIpate In a proJect InvolVIng data entry from the field. 6 That Rowland told her that her stepfather "deserved to dIe" 7 That In February 1998 Rowland prevented her from makIng certaIn entnes Into the computer and threatened to prevent her from acceSSIng the computer by changIng the password, and told her that her posItIOn specIficatIOn would be ready by March 31 1998 8 That In March 1998 Rowland told her she had to learn how to do the programmIng by herself and that she was to do the J ob nght. 9 That In Apnl1998 Rowland swore at her and called her "dopey" 10 That In March or Apnl 1998 Rowland told her that It was a good thIng that she dId not sleep wIth hIm In Maryland. 11 That In May or June 1998 Rowland requested that she hIre good-lookIng women from the temporary employment agency 12 That In June 1998 Rowland told her he could do anythIng he wanted to her 13 That In June, July and August 1998 Rowland repeatedly asked her why she would not gIve hIm hIS fantasIes Ms Levesque reported none of the IncIdents alleged to management untIl August 21 1998 6 The eVIdence establIshes that after Mr Carbert left In July 1996 there does not appear to have been a manager or actIng manager for the Safety Net umt untIl February 1997 when Mr Mike Goodale arnved. Dunng thIS penod, however Mr Mike WeIr was ActIng DIrector and the gnevor was aware of thIS When Mr Goodale arnved, he was the Manager In the PolIcy Office In the Carner Safety & Enforcement Branch as well as ActIng Manager for the Carner Enforcement Program, whIch Included the Safety Net Program In December 1998 he became the Manager for the Carner Enforcement Program WhIle Mr Rowland testIfied that he was advIsed that Mr Goodale had become the actIng Manager Ms Levesque testIfied that she was not aware of Mr Goodale's posItIOn untIl much later Mr Goodale testIfied that he spent between five to ten percent of hIS tIme overseeIng the Safety Net Umt. In hIS words, the Safety Net Umt "pretty well ran Itself" If there was a cnSIS, he became Involved, but even then, he stated that mostly Rowland handled It. Goodale stated that Rowland reported dIrectly to hIm and was responsIble for provIdIng dally dIrectIOn to the gnevor and other data entry operators, provIdIng traInIng, performIng the dally downloadIng of the InfOrmatIOn wIth Ms Levesque, as well as trouble-shoot Issues InvolVIng the Safety Net program and software Mr Rowland's home posItIOn was as a VehIcle InspectIOn AdmInIstrator but In the Safety Net Umt, he was In an actIng assIgnment as a Systems AdmInIstrator Both were bargaInIng umt posItIOns, although at one tIme, for qUIte a number of years, Rowland 7 held a management posItIOn. He began hIS work wIth the Safety Net Umt In 1991 and over tIme It became a larger and larger part of hIS work. By the tIme of the move to St. Cathennes, he was workIng exclusIvely as a Systems AdmInIstrator even though It was stIll a secondment. In hIS estImatIOn, Mr Goodale spent between 2 to 5% of hIS tIme WIth Safety Net. The testImony of many of the wItnesses - Ms Levesque Mr Rowland, Dora CortelluccI, WillIam Cann and Dave Allen - reveals that the atmosphere In the Safety Net Umt was qUIte freewheelIng. AccordIng to Dora CortelluccI, a data entry operator In the Safety Net Umt, Rowland and Levesque would often touch each other and had an "odd relatIOnshIp" She stated that Rowland had a temper and would often yell at Ms Levesque as well as others IncludIng her when mIstakes were made He angered easIly and would often yell It was "how he was - everyone knew that." She stated that he became worse In the Spnng of 1998 when he began takIng medIcatIOn for a prostate problem. In her VIew both Levesque and Rowland would often use profamty yell and swear at each other then later would laugh together Use of the "f' word, she testIfied, was a common occurrence wIth them. Ms CortelluccI testIfied that she once told Ms Levesque that "If the yellIng bothered her don't assocIate WIth hIm" to whIch Ms Levesque responded that she "had to work wIth hIm but don't worry about It; I'm Just one of the guys" WillIam Cann, a VehIcle Inspector testIfied that he saw Levesque come between Rowland and a computer keyboard, wIggle her backsIde and effectIvely push Rowland 8 Into a chair and that they both laughed about It. ThIS was demed by Ms Levesque The sItuatIOn dId not stnke Cann as unusual for the two of them He also saw Rowland 11ft up Ms Levesque's skirt, exposIng her leotards and say "let's see what's under here')" He stated that Ms Levesque responded, "don't do that" and backed away Dave Allen, an employee In Enforcement Program Support, testIfied that Levesque and Rowland were "constantly touchIng one another" but, from hIS perspectIve It was not "Inappropnate" touchIng SInce It was fnendly not sexual He saw them place a hand on the other's arm or leg, or pat theIr head, or hug. ThIS occurred "all the tIme" He agreed that they would often swear and use the "f' word, as dId he He also agreed that Rowland had a temper He stated that Rowland would go out of hIS way to assIst and traIn Levesque and when she could not grasp It, he would get loud and lose hIS temper Rowland, at one pOInt, told hIm that he had tned to teach Levesque D-Base programmIng but that It was beyond her grasp Allen also testIfied about a number of dIscussIOns he had about sexual expenences whIle havIng coffee wIth Rowland and Levesque at vanous tImes from 1996 to 1998 IncludIng her loss of vIrgInIty a "hook" story and fellatIO The eVIdence showed that Levesque dId not ImtIate these conversatIOns but partIcIpated In them She testIfied that she felt comfortable dISCUSSIng sexual matters Ms Levesque testIfied that In July 1996 wIth the second phase of the relocatIOn, her umt moved from the first to the thIrd floor and at that tIme, she became more Involved wIth Safety Net. She stated that Rowland taught her more He taught her how to take reports out of the system, how to answer requests for reports, sell reports to carners, 9 prepare InVOICeS and fax reports, how to add new officers and delete others, as well as answer calls She also testIfied that In October 1996 Rowland began workIng on a new proJect, the ShIpper Overload ProJect. He had the task of tryIng to format that data so It could be Inputted Into the Safety Net program She stated that he taught her where to Input the InfOrmatIOn In the program, but that one tIme, when she made a mIstake she dId not know how to correct, he blew up at her ThIS IncIdent forms one of the IncIdents of alleged sex dISCnmInatIOn and harassment. SpecIfically Ms Levesque testIfied that on one occaSIOn the computer froze on her and she went to Rowland for help then sat down at the computer She testIfied that he yelled at her "for fuck's sake, get away from the God damn chair" She got up and stood behInd hIm and said that she was sorry He responded that "sorry wasn't good enough." He fixed the problem and told her that she "better not make a mIstake agaIn." She testIfied that she was very upset, that thIS was the first tIme he was harsh wIth her and that she almost cned. Mr Rowland could not recall thIS IncIdent. He testIfied that he dId not say that she had "better not make a mIstake agaIn" because everyone makes mIstakes and he knew she would make mIstakes agaIn. 10 Ms Levesque testIfied that at about thIS tIme Mr Rowland suggested that she take a D-Base course because It would be useful for her to learn. AccordIngly In January 1997 she approached Mr CreIg Beatty a manager on the floor although In another umt, to seek approval for the course Mr Beatty agreed that she could take It and she began the course In February 1997 She also took a Windows 97 course as well When she met wIth Mr Beatty Ms Levesque asked hIm about a posItIOn specIficatIOn for her posItIOn and he told her that he dId not have one for It. On cross-eXamInatIOn, she testIfied that Beatty told her when the manager posItIOn for her umt was filled, the manager would address It. In Apnl 1997 Mr Rowland also suggested to her that she would benefit from a Safety Net course gIven annually In the Umted States He had attended several tImes and planned to go agaIn, and he felt It would be beneficIal to her to attend some of the courses The conference for 1997 was to be held In June In Maryland. Approval for theIr attendance was sought, and approved by the ActIng Deputy Mimster Dunng the conference, the gnevor alleges that Mr Rowland's sexually assaulted her and proposItIOned her SpecIfically she alleges that she and Rowland traveled by airplane to Maryland on Saturday June 14 1997 and arnved at the hotel In ColumbIa, Maryland that evemng. They had a dnnk at the bar whIch Rowland paid for and then had dInner together The traInIng program started the next day at 200 p.m In the mormng, they had breakfast together and then sat together at the hotel pool and talked. She had on a bIkIm On examInatIOn-In-chIef, she testIfied that at about 1 00 p.m she 11 felt It was tIme to leave and get ready for the conference Together they walked Into the hotel Her room was on the thIrd floor whIle Rowland's was on the first, although she was not sure where As they passed hIS room, he stated "my room's here" and asked her to hold hIS glass whIle he sWIped hIS entry card. She had "my glass of PepsI" and "held hIS dnnk" as he opened the door and put the key down on the dresser He InvIted her In and she said "no" and put her foot Into the open door She said she dId not want to go In, she Just wanted hIm to take hIS dnnk and said, "here's your glass" at whIch pOInt, he "pulled my bIkIm, hard enough to pull me Into the room" She said, "what the fuck are you dOIng?" and tned to cover herself He was laughIng and she agaIn said, "here's the glass" and he then pulled the bottom of her bathIng SUIt. She yelled at hIm and said that he began to flap hIS arms and say "people wIll hear" She then turned around, puttIng her breasts back Into her bathIng SUIt and was cryIng. She testIfied that Rowland said, "don't be lIke that." She stated that she then put the glass on the floor and fixed herself She pIcked her cIgarettes off the floor and walked out, and he agaIn told her "don't be lIke that." She stated that she was cryIng, upset and embarrassed and arnved late for the meetIng. Later at around 5 30 P m she stated that Rowland called her room and asked her If she wanted to go to dInner She said "no not yet." He told her he was hungry and asked, "you are havIng dInner aren't you?" to whIch she responded "yes" He then told her that she owed hIm a dnnk and she agreed to meet hIm In the lobby They dId not dISCUSS what had occurred. 12 On cross-eXamInatIOn, Ms Levesque was specIfically asked whether she and Rowland were carryIng the glasses from the pool "because there was PepsI In them" and she responded "yes" Later she stated that there was no PepsI In them and they were Just returmng the glasses to the table where they got them. The table was by the conference room for the traInIng course, past where Rowland's room was located. The only thIngs that she was carryIng were the empty glass In one hand and her cIgarettes and lIghter In the other She stated that after she took Rowland's glass, she had both glasses In her hands wIth her cIgarettes and lIghter under her arm When he pulled her bIkIm top the glasses were stIll In her hands She agreed that she dId not tell the InVestIgator who InvestIgated her allegatIOns ImtIally that there was no PepsI In the glasses or about the lIghter and attnbuted that to the fact that EnglIsh IS a second language for her The gnevor dId not report thIS IncIdent to anyone at the hotel or to management back In St. Cathennes eIther at the tIme or after her return untIl late August 1998 fourteen months later Upon her return to work, she confided to Dora CortelluccI that Rowland had asked her to go to hIS room to have sex dunng the tnp Ms CortelluccI dId not recall the gnevor mentIOmng hIm dOIng anythIng to her physIcally or her mentIOmng anythIng about a bIkIm The gnevor ImtIally testIfied that she only told Dora that Rowland had made passes at her and It made her nervous Later she said that she told Dora that Rowland "basIcally asked me to sleep wIth hIm" that he made passes at her and that she told hIm "no way" She dId not tell her about the bIkIm IncIdent even though Dora was someone she confided In on a day-to-day basIs 13 Ms CortelluccI also testIfied, on cross-eXamInatIOn, that she advIsed the gnevor after Maryland, to do somethIng about It and report Rowland If he was harassIng her She stated that Ms Levesque dId not want to report hIm because there had been a sImIlar pnor IncIdent In her employment wIth the Mimstry that she had reported and she had found It too stressful Also she was afraid of her husband's reactIOn, that he would get upset and do somethIng to hurt Rowland. She told Ms Levesque that If It was senous she should talk to her husband, that IS what she would do but that It was her decIsIOn. Mr Rowland demes that the bIkIm IncIdent occurred. He testIfied that on Sunday June ISth they were at the pool, there was a PepsI machIne and they were dnnkIng PepsI, they realIzed It was gettIng late and walked Into the hotel together He stated that hIS room was on the first floor whIle her room was on the thIrd. They passed hIS room, he opened the door and said "see you In a few mInutes" He stated that she was not In hIS room on Sunday he never pulled her bIkIm down, and he Just went Into hIS room After thIS IncIdent, the gnevor contInued to take her meals wIth the gnevor for the duratIOn of the five-day conference She stated that she felt compelled to do so by Rowland. Rowland testIfied that they dId have theIr meals together but demed that there was any compulsIOn Involved. AccordIng to Ms Levesque, a second IncIdent occurred on the last day of the tnp She stated that she had checked out of her room at 1200 noon and came down wIth her sUItcase WaitIng for the shuttle bus to take her and Rowland to the airport at 4 00 for theIr 14 flIght at 6 00 P m. Rowland InvIted her to SIt by the pool wIth hIm He was In hIS bathIng SUIt. She told hIm that she was packed but would SIt by the pool wIth hIm WhIle there, she mentIOned how she had been In the Job for a year and had taken on a lot of responsIbIlIty IncludIng the hmng and traInIng of temporary staff, and that she should get more money for It. She asked hIm whether he would talk to management about that. She testIfied, on examInatIOn-In-chIef, that he responded that "If you want more money you have to take care of the boss" She asked hIm what he meant and he replIed, "I could rent a room and me and you." She asked hIm whether he was tellIng her that she had to sleep wIth hIm for hIm to go to management to get her a Job upgrade, to whIch he gnnned and nodded "yes" She told hIm, "then I'm gonna retIre an OAG-7 Barne" Later they took the shuttle together sat on the plane together and he drove her home from the airport. Mr Rowland demed these allegatIOns He testIfied that he and Levesque were at the pool sun bathIng the last day but they dId not talk about her Job He said that she took her blouse off and Just wore her bra and Jeans He testIfied that he never said he was her boss and never offered her a Job upgrade, nor could he have done so He stated that he dId not suggest they rent a room In terms of the courses she took, Levesque testIfied that Rowland advIsed her about them as she was not expenenced enough. She acknowledged that the courses he chose related to her work wIth Safety Net, that she had looked through the course IS matenal and agreed wIth hIS selectIOn and dId not research It further She agreed that he tned to pIck courses whIch could be useful for her AccordIng to Ms Levesque, her relatIOns wIth Rowland changed after Maryland. Before, she stated that he had good days and bad ones They would tell stones, IncludIng sexual ones, and she felt comfortable dOIng so He would put hIS arm around her or hug her and she saw nothIng wrong wIth It. She stated that hIS mood could qUIckly change, however If she made a mIstake He would get mad qUIckly and she would try to tIptoe around hIm When she erred, he would call her "Dopey 2" SInce he had dubbed another employee "Dopey" She stated that she dId not lIke It and felt humIlIated and embarrassed by It. She stated that at the tIme, she dId not get the punch lIne of the Joke AccordIng to Dora, however Ms Levesque took It In a JokIng manner and often referred to Rowland as "Grumpy" After Maryland, she testIfied that he became harsh wIth her If she made a mIstake, he would call her a "fuckIng IdIOt - are you stupId?" She said he was rude and crude to her after Maryland. In July 1997 she testIfied that Rowland was workIng on a pIlot proJect InvolvIng data entry from the field and when she asked hIm what he was dOIng he responded "mInd your own busIness" and she returned to her desk. Ms Levesque dId not, however report thIS treatment to management. Instead, she would hIde In the washroom and cry On cross-eXamInatIOn, she acknowledged that later In the day although Rowland dId not apologIze he told her that he was workIng on a pIlot proJect and needed to concentrate on It and that she could take care of Safety Net. 16 Rowland's recollectIOn about thIS IncIdent dIffered. He stated that In July 1997 he was asked to set up a program for lap top use In the field, so that the InSpectIOn reports could be Inputted dIrectly from the officers In the field. He said that he left the memo about It SIttIng on hIS desk, she read It and asked hIm about It. He told her that she had enough to do wIth Safety Net, that she had programmIng to learn and a lot of admInIstratIve work. Dora CortelluccI testIfied that thIngs "soured" after Maryland. Ms Levesque, In her VIew was a lot more tense and Mr Rowland was havIng a health problem, whIch made hIm more tense She stated that Ms Levesque attnbuted Mr Rowland's behavIOur to hIS condItIOn and the medIcatIOn he was takIng. AccordIng to Rowland, nothIng changed after Maryland. He stated that day Levesque would come to work In the mormng wIth a cup of coffee and SIt at hIS desk chattIng for a half-hour and thIS dId not change untIl August 1998 In August of 1997 the gnevor had a pool party at her house, whIch Mr Goodale attended. On hIS way out, the gnevor asked hIm about her Job specIficatIOn. She told hIm that she was dOIng both admInIstratIOn and safety net and that It was a bIt much for her He said he would look Into It, but that he was not her manager that she would be gettIng one soon and he would address the Job spec Issue 17 The next maJor allegatIOn centers on a traInIng seSSIOn In CentralIa, near London In January 1998 Rowland was InvIted to make a presentatIOn to the Ontano ProvIncIal PolIce and new enforcement officers about the Safety Net program and how to complete the reqUIred reports He InvIted the gnevor to attend wIth hIm as a learmng expenence She would watch hIm make the presentatIOn and work the proJector She testIfied that she felt that she had to go as part of her traInIng In Safety Net even though she was qUIte worned about It after Maryland. She confided to Dora that she was afraid he would try on her agaIn. Dora testIfied that she told the gnevor not to go If she was worned, to find an excuse, but she guessed It was Important to go because the gnevor went. In fact, the gnevor drove wIth Mr Rowland for the 311z hour nde to CentralIa as well as returned wIth hIm Ms Levesque testIfied that they arnved at CentralIa around 11 00 a.m. had lunch, followed by the presentatIOn at 1 00 and were fimshed at 400 p.m After she and Rowland, along wIth Peter Dodsley the course convenor had dInner together and then went to "Dodsley's lIttle room" the old nurSIng area. As Dodsley went to an adJacent area to get a dnnk, she told Rowland that her bed had a two-Inch mattress and felt lIke steel Rowland told her that he and Dodsley as Instructors, had regular beds and told her to come see hIS room She got up walked to hIS room and put her "nose Into It" when Rowland came behInd her and tned to push her Into the room She grabbed the sIde of the doorway and yelled. She stated that Dodsley said "what's gOIng on?" to whIch she responded "Rowland IS tryIng to push me Into hIS room." There was no response from 18 Dodsley She said Rowland pushed hIS knee Into her knee, but when Dodsley yelled, he let her go They then returned to the SIttIng area and sat down wIth Dodsley She stayed for ten or fifteen more mInutes and left. She dId not dISCUSS what occurred but said she felt upset. The next day Rowland made a mormng presentatIOn that was completed by 11 00 a.m. and then they drove back In Rowland's car On the way back, they dId not dISCUSS what happened. She testIfied that as they passed by a few motels, he asked her If she wanted to stop and she replIed "no" She further testIfied that as they passed BurlIngton, she said, "there's BurlIngton" and he asked her If she wanted to go there She asked hIm If he needed to go and he responded that she and hIm could rent a room and enJoy themselves She told hIm "no" He then said "last chance" and she told hIm that she was a happIly marned woman wIth a lIttle gIrl If she slept wIth hIm she would have to tell her husband and she could not lIve wIth It; It would ruIn her lIfe They dId not dISCUSS It further Mr Rowland testIfied that he was asked to go to CentralIa to make a presentatIOn about the InSpectIOn reports - how to fill them out because there was a hIgh error rate He made some overheads, whIch Ms Levesque saw and she asked hIm If she could be Involved. He agreed, tellIng her that he would do the first one and she could come and see how It was done, then she could do the second one He stated that she went to both seSSIOns It IS unclear exactly when the second one was, but accordIng to Rowland, they 19 were three to five weeks apart. He stated that although she was supposed to put on the presentatIOn the second tIme she was too nervous and he dId the presentatIOn. Dunng dInner Rowland stated that Ms Levesque complaIned about her bed. He told her to talk to Peter Dodsley because there were extra rooms for Instructors, but dId not know If she dId so After dInner he, Ms Levesque and Peter Dodsley went to the SIttIng area where they talked for a whIle Dodsley got a dnnk from an adJacent area and brought It back. He said that Ms Levesque never went to hIS room. He never pushed her Into hIS room. Dodsley never yelled, "what's gOIng on there?" On the way back In the car he testIfied that he dId not suggest that they stop at a hotel, that he never said It was her "last chance" He stated that when he dropped her off at her home she InvIted hIm In for a dnnk but he declIned. Peter Dodsley a TransportatIOn Enforcement Officer Involved wIth traInIng of new officers, testIfied that he InvIted Rowland to CentralIa to make a presentatIOn on InSpectIOn reports He could not recall the dates when Rowland and Levesque came He recalled, however that they socIalIzed on two occasIOns, had beverages and then went theIr separate ways He dId not recall Levesque yellIng out to hIm, or yellIng "let go what are you dOIng?" Nor dId he recall yellIng to her "what's gOIng on over there" In hIS VIew he would have heard It If there had been yellIng, or even talkIng In a normal VOIce, SInce they were In a small area. He dId not recall anythIng unusual about the InteractIOn of Rowland and Levesque dunng that evemng. He recalled nothIng out of the ordInary He stated that If he had heard somethIng lIke that, he would have Intervened. 20 The gnevor dId not report what occurred to management upon her return from CentralIa or thereafter In February 1998 she testIfied that 80 new enforcement officers had been hIred and had to be Inputted Into the system She Inputted them as I. SO' s (InspectIOn Safety Officers) whIle Rowland wanted them Inputted as T.E 0 's (TransportatIOn Enforcement Officers) She stated that he was mad when he saw what she had done and told her to change It, and told her that If she dId It agaIn, he would change the password so she could not get Into the system In March 1998 she testIfied that Rowland told her to start learmng programmIng by herself, as he had learned, by InstallIng software She told hIm that she had not done thIS before and not to yell at her If she made mIstakes, to whIch he responded, "do It nght and I won't scream at you." When she erred, she testIfied that he got so mad at her yellIng at her "what the fuck dId you do? Get off the Goddamn chair I've never met anyone as dopey as you." In terms of the "dopey" name Rowland testIfied that Levesque got mcknamed "Dopey 2" SInce someone else was "Dopey 1" He stated that In return she called hIm "Grumpy" and that both of them used the terms dally wIthout obJ ectIOn. He testIfied that she never obJected to It and never said that It bothered her He stated that one tIme he asked her If hIS language offended her and she replIed "no I'm one of the guys I'd tell 21 you If It dId." On cross-eXamInatIOn, Levesque acknowledged that she dId not mInd beIng called "dopey" by Rowland, that he said It JokIngly and that she never told hIm not to use that name Both Dora CortelluccI and Dave Allen confirmed Rowland's testImony about the "dopey" mckname CortelluccI testIfied that she often heard Rowland call Levesque "Dopey 2" and Levesque call hIm "Grumpy" She said that she dId not thInk Levesque took It personally because she laughed about It. In her VIew It was "lIke a pet name almost." Dave Allen testIfied that he often heard them refer to each other as "Dopey" and "Grumpy" and that Levesque took It In a JokIng manner In terms of the programmIng, Rowland testIfied that at some pOInt there was a computer that the gnevor could take home and he loaded It WIth programs and gave her a manual for them and advIsed her to play wIth It. He said that he dId not tell her she had to He told her that It would look good on her resume If she could learn these applIcatIOns In March or Apnl 1998 Ms Levesque testIfied that she and Rowland were dISCUSSIng hIS prostate problems and she said that he told her that It was a good thIng that she dId not sleep wIth hIm In Maryland because otherwIse he would have blamed her for gIVIng hIm a dIsease Rowland testIfied that he told her It was a good thIng she dId not have her way wIth hIm In Maryland or he would have blamed her for hIS prostate problem. 22 The gnevor also alleged that Rowland Instructed her to hIre good-lookIng women from the temporary agency If she had a chOIce and made unflattenng comments about the physIcal attnbutes of the temporary employees At the heanng, Rowland testIfied that he told Levesque that another employee, Joe Covello had told hIm that If he was gOIng to get a harem he should hIre better lookIng women and that It was meant as a Joke Dunng the InVestIgatIOn, however Rowland told the InVestIgator that he had told thIS to Levesque as a Joke When questIOned on cross-eXamInatIOn about the change, Rowland stated that he recalled thIngs after hIS meetIngs wIth the InVestIgator that he dId not recall at the tIme and that hIS memory was better now than It was then. Ms Levesque further testIfied that In May 1998 the umt changed computers and to assIst Rowland she went under the desk to plug In the electncal cord. She was on her hands and knees under the desk when he put hIS foot under her crotch and lIfted her up surpnSIng her and caUSIng her head to hIt the bottom of the desk. She asked hIm "what the fuck are you dOIng?" to whIch he Just laughed. She stated that thIS happened agaIn In June of 1998 although that tIme he dId not 11ft her but Instead rubbed her crotch wIth hIS foot, and she yelled out. Levesque admItted, on cross-eXamInatIOn, that she dId not report these IncIdents, dId not tell Rowland that she found It offensIve or tell hIm never to touch her lIke that after the May IncIdent. When asked why she put herself In the exact same posItIOn one month later she replIed that she thought he would stop 23 Rowland's verSIOn IS somewhat dIfferent. He testIfied that In May 1998 Levesque went under the desk to plug In the electncal cord wIth her rear end up She "wIggled her bottom" and was "gyratIng there" she said somethIng about "doggIe fashIOn" and he put hIS foot on her bum and tapped or pushed. In June, she agaIn went under the desk In the data entry area to plug In a cable, agaIn wIggled her bum and he told her "remember last tIme you got a boot In the ass" He stated that In June there was a group of Data Entry Operators present and Levesque never said a word. In May he demed that she hIt her head on the desk and, Instead, was gIgglIng and laughIng. Ms Levesque demed that she wIggled her bottom or said anythIng about "doggIe fashIOn" and that hIS foot was on her crotch, not her buttocks, both tImes Dora CortelluccI testIfied that she dId not see thIS IncIdent although she was present along wIth two other operators when Levesque bent down to Install the cable She heard Rowland say somethIng but she could not recall what SInce she was not paYIng attentIOn, although she thought It sounded smart-alIcky She recalled, however that Levesque asked her "dId you see that?" but she had not. Ms Levesque testIfied that she went Into the washroom and cned and as she came out, Mr Goodale saw her and asked what was the matter She said that she could not speak and kept on gOIng. She dId not dISCUSS what happened or how she felt wIth Mr Goodal e She was not sure If thIS was In Mayor June 24 Ms Levesque testIfied that "because of these IncIdents" she "was gettIng upset wIth Rowland." SometIme around May 1998 she saw CreIg Beatty and asked for a meetIng. He told her that Goodale was on vacatIOn and when he returns, they would meet. She stated that In early May she met pnvately wIth both Goodale and Beatty At that meetIng, however she only complaIned about her workload - her safety net and admInIstratIve responsIbIlItIes She dId not dISCUSS Rowland's behavIOur except to say that he was Irntable because of hIS prostate problems and the medIcatIOn he was on. When asked on examInatIOn-In-chIef why she dId not mentIOn the IncIdents of assault or harassment, she stated "I thought I could handle Rowland, If I kept saYIng 'no' he would stop" She added that Mr Carbert had advIsed her to learn about the Job and she wanted traInIng from Rowland about Safety Net. She also stated that In the past, she had gone through a sImIlar InVestIgatIOn and found the stress, financIal and emotIOnal cost too hIgh. She dId not want to go through that agaIn and thought he would stop Dunng the meetIng, Goodale and Beatty asked Ms Levesque whether she preferred Safety Net or office admInIstratIOn. She told them that she had spent two years wIth Safety Net and career-WIse It was a better place for advancement than office admInIstratIOn. They agreed to hIre a contract employee to do the admInIstratIve work so that she could devote 100% of her tIme to Safety Net. She testIfied that she agaIn asked about a posItIOn specIficatIOn and was told that a new manager would be hIred that summer and would look Into It then. She told them "fine" When asked on eXamInatIOn- In-chIef If she was concerned about contInuIng to work wIth Rowland, she testIfied "I 25 was hopIng that Rowland would stop I thought I could handle hIm I Just wanted traInIng as I had been told In 1996 that was all I wanted from Rowland." AccordIng to Goodale thIS meetIng took place on Apnl 24 1998 not May He testIfied that the only complaInts Levesque expressed were that Rowland was short- tempered and grumpy because of the medIcatIOn he was takIng, that he would lose hIS temper If she dId not do the Job properly and that her workload was too heavy In lIght of her data entry and office admInIstratIve responsIbIlItIes She told hIm, and CreIg Beatty that the cOmbInatIOn was creatIng too much pressure on her Goodale testIfied that they asked her whether she wanted to return to her home posItIOn as a BIlIngual Word Processor under CreIg Beatty or If she wanted them to lIghten her load, eIther by relIevIng her of her data entry dutIes so that she would do office admInIstratIOn exclusIvely or relIevIng her of her admInIstratIve dutIes so that she could focus on data entry wIth Rowland. Her preference was data entry She wanted to stay In that area, learn the Job and progress AccordIngly they relIeved her of her admInIstratIve responsIbIlItIes and hIred a contract employee to do that work. Levesque made no mentIOn of any sexual assaults, harassment or dISCnmInatIOn by Rowland. Levesque testIfied that In May June and July Rowland kept askIng her to gIve hIm hIS fantasIes and why wouldn't she gIve hIm hIS fantasIes The first tIme, she testIfied, on cross-eXamInatIOn, she told hIm "no" The second tIme, she responded "DIdn't mother gIve you any last mght?" In her VIew If he wanted sex he should go to hIS wIfe Rowland 26 demed thIS, but stated that one tIme Levesque asked hIm why he was so grumpy saYIng, "what's wrong? DIdn't you get lucky last mght? Mother not beIng good to you?" She also stated that In June 1998 when new dIvIders were Installed, he told her that he could now do anythIng he wanted to her and no one could see ThIS was demed by Rowland who testIfied that he told the data entry operators that the new dIvIders would offer them more pnvacy for theIr work. Dora CortelluccI supported Rowland's testImony She testIfied that when the new dIvIders were Installed, Rowland told them that the dIvIders offered more pnvacy that they could concentrate better wIthout so many people paSSIng by and It would be more pnvate She dId not recall Rowland saYIng he could now do anythIng he wanted. Another allegatIOn Ms Levesque made was that Rowland had told her that her stepfather "deserved to dIe" Although Ms Levesque dId not testIfy about thIS dunng examInatIOn-In-chIef, on cross-eXamInatIOn, she testIfied that she had receIved a telephone call that her stepfather had not come home from a huntIng tnp and she was worned about hIm. Dunng a mormng break, someone asked her what was wrong, and she told them and added that he had heart problems and receIved an angIOplasty "("balloon") treatment the year before She then testIfied that Rowland said that "If the son of a bItch had no sense but to go huntIng wIth a heart condItIOn, he deserved to dIe" She said thIS was heard by Dave Allen. Allen, however was not asked about thIS at the heanng by eIther sIde, nor was any other wItness called to confirm thIS statement. 27 Rowland testIfied that Levesque had receIved a call saYIng that her mother's boyfnend was reported mISSIng and later It was learned that he had been found dead, besIde hIS truck. He said that he never said the man deserved to dIe He testIfied that he said, "at least he went dOIng what he lIked to do " Levesque testIfied that In early August, after she returned from vacatIOn, she asked Rowland about a posItIOn specIficatIOn for her Job and he told her "you know what you have to do" Her understandIng of that comment was that he meant that she had to sleep wIth hIm She was aware, however that Rowland, as a bargaInIng umt employee, had no authonty to Issue a posItIOn specIficatIOn, that management and human resources had that responsIbIlIty and authonty Rowland testIfied that whenever Levesque would InqUIre about a posItIOn specIficatIOn he would refer her to management. Levesque testIfied that every tIme Rowland dId somethIng she would tell hIm to "stop" Every tIme he tned to touch her she would tell hIm "no" She said she finally "lost It" In late August 1998 when Rowland tned to grab her breasts at work. Levesque testIfied that on August 20 1998 at around 1 30 pm she was standIng readIng a computer pnntout when Rowland came around behInd her and tned to grab her breasts His hands came down over her blouse and he grabbed the metal of her bra caUSIng her breasts to come out. She said she "screamed" "what the fuck are you dOIng" and he laughed. She went to the bathroom to fix herself and hIde agaIn. She said no one saw her although she admItted, on cross-eXamInatIOn, that thIS occurred In the mIddle of the 28 workplace and that others could hear her If not see her She dId not ImmedIately or thereafter report It to management or tell anyone, but she finally realIzed that Rowland dId not understand the term "no" Levesque then stated that the next day a co-worker Sandy Pennycock, called her to go have coffee She said that Pennycock told her that If she dId not stop takIng Rowland's abuse she would go to management herself and report It. Levesque told her please don't, that she had spoken to Goodale that mornIng, and Pennycock replIed, "good because I'm sIck and tIred of lIstemng to hIm abuse you lIke that." Sandy Penny cock was not called as a wItness In fact, the only wItness called by the Umon was Ms Levesque Levesque testIfied that she was planmng to go to go see Goodale on August 21 1998 when he came by at around 11 00 a.m. to say "hI" and "how are thIngs?" She told hIm "not good" and he asked why and she replIed that she was scared to say and he suggested they meet pnvately In the boardroom Once there, he asked If It was about Barne Rowland and when he agreed to keep theIr dIscussIOn confidentIal she said "yes, It'S Barne " She testIfied that she told hIm about Rowland's comment "you know what you have to do" when she asked hIm about the posItIOn specIficatIOn. She told about what he said In Maryland when she asked hIm to speak to management about a Job upgrade - that she would have to sleep wIth hIm She said that he tned It agaIn In CentralIa and mentIOned "IncIdents In the office" and that he had to do somethIng, that she could not take Rowland anymore She dId not, however tell hIm about the IncIdent the day before 29 when he tned to touch her breasts at work. On cross-eXamInatIOn, she explaIned that she dId not tell Goodale about any of the assaults because It was "embarrassIng." Levesque testIfied that Goodale told her that he mIght become the manager for the umt, Instead of Just actIng manager and that there was an OAG-8 posItIOn open whIch she mIght apply for She responded "apply?" and he told her he would fix It so she got It. He told her not to gIve hIm an answer then but to thInk about It over the weekend. She said, "fine" and left. She dId and on Monday she came In wIth "my counterproposal" It was a typed, formal agreement, statIng that Ms Levesque would be transferred to the OAG-8 posItIOn as a "temporary measure" to remove her from an allegedly pOIsoned work envIronment. It states that Ms Levesque would not be reqUIred to apply for the OAG-8 posItIOn, and that she would retaIn her nghts under the collectIve agreement and the Human Rights Code ThIS document was prepared wIth the help of a umon representatIve Ms Levesque explaIned that she thought that by applYIng for the OAG-8 Job she would be forgoIng any chance of progreSSIng In Safety Net. She wanted to leave Safety Net temporanly but not have to apply for the other posItIOn and gIve up on advancIng In Safety Net. From her perspectIve, what Goodale proposed reqUIred her to abandon her hopes for advancement In the Safety Net area. 30 Ms Levesque presented thIS proposal to Goodale on Monday August 24 1998 but he would not sIgn It. He told her that he dId not have the authonty to Waive her Into the posItIOn, that the allegatIOns she had made were senous and that Rowland had a nght to defend hImself She told hIm "IS that what you're saYIng, he can defend hImself)" Goodale replIed "yes" and she grabbed the document and left. Goodale testIfied that he went to Ms Levesque's workstatIOn on August 21 1998 to InqUIre about Rowland's lettIng the temporary contract employees go home because of a lack of InSpectIOn reports He stated that dunng that conversatIOn, she told hIm that Rowland had been harassIng her SInce the move to St. Cathennes In 1995 He then suggested they more to a more pnvate area to dISCUSS thIS and they went Into the boardroom. There she "descnbed events In the office that would constItute harassment" as well as at the CentralIa traInIng centre She told hIm that Rowland had held out the promIse of gettIng hIS Job when he retIred In exchange for sex. She gave hIm no detaIls about the IncIdents His notes of theIr conversatIOn, whIch were wntten three days later state, In pertInent part, as follows At that tIme, she alleged that Mr Rowland had been sexually harassIng her over several years In the office and dunng traInIng seSSIOns at the CentralIa traInIng centre Her ratIOnale for endunng thIS harassment was that Mr Rowland had led to her belIeve that she would succeed hIm as the Safety Net AdmInIstrator upon hIS retIrement. However recently Mr Rowland IndIcated to her that he wasn't retmng untIl 2002 At thIS meetIng, Ms Levesque dId not mentIOn the sexual assault In Maryland or hIS attempt to grab her breasts the day before She dId not mentIOn Rowland's placIng hIS foot on her crotch In May and June 31 Mr Goodale testIfied that dunng the meetIng, he suggested she apply for the OAG-8 posItIOn that had Just been advertIsed. On Monday she presented her proposal that she be dIrectly appoInted to the posItIOn. He told her he had no authonty to do that, that she had raised senous allegatIOns and that management would be launchIng a formal Workplace DISCnmInatIOn and Harassment PolIcy (WDHP) InVestIgatIOn. He told her that, In hIS VIew It would make more sense for her to move back to her home posItIOn dunng thIS tIme, to relIeve her of havIng to Interact wIth Rowland, but she saw that as a step backwards and was not Interested In that optIOn and the meetIng ended. Goodale then contacted DIrector Mike WeIr to dISCUSS the sItuatIOn They met wIth a Human Resources Consultant and the Mimstry's WDHP CoordInator and It was decIded that a formal InVestIgatIOn would be launched. They also dIscussed what Intenm measures could be taken to separate Levesque and Rowland dunng the InVestIgatIOn and vanous optIOns were outlIned. The next mormng, Tuesday August 25 1998 Goodale went to find Rowland. When he dId, Rowland related an IncIdent that occurred before Goodale had arnved. Rowland told hIm that Levesque had shouted at hIm that he had promIsed her a Job If she put out for hIm and there were others who would have heard It. He asked Rowland to JOIn hIm In the boardroom and told hIm about Levesque's allegatIOns, that management had ImtIated a formal InVestIgatIOn and the steps that would follow Goodale told Rowland that Levesque had alleged that he had promIsed her hIS Job In exchange for 32 sexual favours Goodale later confirmed that there were two wItnesses to the mormng's exchange between Levesque and Rowland. One of these wItnesses, PhIl Cook, then Manager Carner Enforcement Program Office, testIfied that at around 7 30 or 7 45 a.m he arnved at work and passed by Ms Levesque's desk. He notIced Rowland half SIttIng, half out of Levesque's work area and he proceeded to hIS own desk. He then overheard a conversatIOn between them He testIfied that Ms Levesque was "ObvIOusly angry" saYIng that Rowland "promIsed me a Job If I worked hard, I would get the Job" Then Rowland responded "no I dIdn't" and to "keep It qUIet." He then heard Levesque repeat "you told me I'd get that Job promIsed me" and Rowland agaIn said "no I dIdn't; you know I can't do that" and It escalated from there He testIfied that Levesque then said, loudly "Barne I'm tIred of thIS, I'm not takIng It anymore, your touchIng me harassIng me" "It stops here Barne It stops now" and Rowland responded to keep It down, be qUIet, don't talk so loud." He reported thIS to Goodale later In the day After reVIeWIng hIS statement to the InVestIgator Mr Cook recalled that Ms Levesque had said to Rowland that "you said If I sleep wIth you I would get the Job" whIch was when he realIzed the senousness of the conversatIOn. His statement to the InVestIgator contInues that before Rowland could answer her comment about sleepIng wIth hIm, Levesque added "but I'm not gOIng to do that, I refuse to I'm tIred of you comIng back here and harassIng me and touchIng me I won't take It anymore It stops nght here and nght now I'm not gOIng to fuckIng take It anymore" and then she stormed out. Cook testIfied that Levesque was very loud and that she spoke the most clearly he had ever heard her speak. On cross-eXamInatIOn, Cook testIfied that 33 It was possIble that Rowland had seen hIm come In from where he was sItuated, but that Ms Levesque would not have seen hIm. On examInatIOn-In-chIef, Levesque testIfied that on August 25th Rowland came to her and said that he needed to put a lIst together of all the contract staff hIred for the last two years and theIr number of hours He told her that someone else would now be hmng them She asked hIm what would happen to her because that was her Job and he responded she would have to eIther find another Job or do data entry She told hIm that Carbert led her to belIeve that If she took ImtIatIve to learn hIS Job she had an opportumty for advancement. He told her that Carbert wasn't there and what he said counts for nothIng. He said he'd been dOIng Safety Net for mne years even though It was not hIS real Job that a lot of employees do not do theIr real Job She told hIm that he led her to belIeve, for the past two years, that she had a good chance of gettIng hIS Job when he retIred. He told her he never said that. She told hIm that she would not lIe for hIm anymore, that he was abusIve tryIng to touch her all the tIme and that "the ShIt was stoppIng today" she "would not take It anymore, that all he wanted was to sleep wIth her" and that If he dId not understand It before, she "wIll never sleep wIth hIm." She shouted, "1'11 never sleep wIth you." Later stIll on examInatIOn-In-chIef, Levesque testIfied that when she arnved at work on August 25th Rowland was "pretty mad, sweanng and curSIng" because he had met the day before wIth WeIr and Goodale and they were "stIckIng theIr noses" Into Safety Net. He would fix them and not retIre untIl 2002 She asked what was gOIng on 34 and he told her that management wanted the names of all contract staff hIred SInce 1996 and theIr number of hours whIch then led to theIr altercatIOn. Levesque stated that she started theIr conversatIOn softly but fimshed "very loud." She testIfied that she was very upset when Rowland told her she would have to find eIther another Job or do data entry She testIfied that "If no one was wIllIng to help me I was gOIng to make sure that Rowland [would] not touch me agaIn. If he dIdn't understand before he understood then." She testIfied that Rowland kept askIng her to keep qUIet, to keep It down. She dId not know If anyone else was workIng In the area at the tIme On cross-eXamInatIOn, Levesque testIfied that she dId not hear Rowland say that he was not gOIng to retIre untIl 2002 untIl August 25 1998 She reIterated that she got upset when Rowland told her she would have to find another Job or do data entry She explaIned that she had spent two years learnIng safety net and now was to "be dIsposed of lIke thIS" Why dId she "spend two years traInIng, It was not what was " She said that she told Rowland that mornIng that he had told her for two years that If she worked hard she would be the only one wIth knowledge of Safety net and would have a good chance to get the Job and he demed saYIng that. So she told hIm that the "ShIt stops today" that he had come around harassIng her tryIng to touch her that all he wanted to do was sleep wIth her and he never would. Rowland's verSIOn of thIS conversatIOn IS sImIlar He testIfied that management had been upset to learn that he had let the temporary staff go On Monday August 24th he was asked by Goodale and WeIr to provIde a lIst of the temporary staff and theIr 35 hours, and he needed the tImesheets for that. He told her that the DIrector's admInIstratIve assIstant would do all hmng and finng of temporary staff She asked hIm "what about me, my Job?" and he told her the dIscussIOn never came up about her Job She asked hIm why dIdn't she have a Job or a Job specIficatIOn? Why dId she go to Maryland to learn about Safety Net? Why dId she take the D-Base course? She told hIm she could do the Safety Net Job and he told her "no you can't; no you haven't." He testIfied "that's when It hIt the fan" and she "blew up" She screamed at hIm "If I slept wIth you, I'd have your Job" and repeated It very loudly He told her to keep her VOIce down and when she contInued, he said, "thanks a lot" and walked away He testIfied that he never told her that If she slept wIth hIm she would get hIS Job Later that mormng, he told Goodale what had occurred and he was Informed that Ms Levesque's had made allegatIOns agaInst hIm of sexual harassment. In the afternoon of August 25th Ms Levesque filed two gnevances, the first allegIng sexual harassment by Rowland dunng the past two years and for faIlIng to remove her as set out In her counterproposal dated August /25/[SIC]98" Her requested remedy was "[a] harassment free work place - maIntaIn career advancement and opportumtIes as prevIOusly dIscussed." The second gnevance was that she had "not been supplIed wIth a posItIOn specIficatIOn whIch accurately descnbes and defines my current dutIes as Safety Net AssIstant." On August 26 1998 management met wIth Ms Levesque and her umon representatIve and outlIned three optIOns to ensure no contact between Levesque and 36 Rowland dunng the InVestIgatIOn. Those optIOns were (1) to return Ms Levesque to her home posItIOn, (2) for her to perform data entry on another floor or (3) to have Rowland work from home or at dIfferent hours than the gnevor Her chOIce was to have Rowland work from home whIch began the folloWIng day The WDHP InVestIgatIOn followed. Although the eVIdence IS unclear on thIS, It appears that ongInally the gnevor dId not want to partIcIpate In the InVestIgatIOn, prefernng to utIlIze the gnevance process But eventually she dId partIcIpate The InVestIgatIOn was conducted by Don Clark, an outsIde consultant, and was completed on January 29 1999 wIth the Issuance of a lengthy report. AccordIng to DIrector Mike WeIr many employees were IntervIewed and the InVestIgatIOn caused morale problems and stress The InVestIgator's report, whIch was Introduced Into eVIdence, found that Ms Levesque's allegatIOns of sexual assault, sexual harassment and dISCnmInatIOn were, on a balance of probabIlItIes, unsubstantIated, and further found that they were made In bad faith findIng that her motIve for filIng the complaInt "IS dIrectly related to her desIre for a 'Job/upgrade '" He also concluded that Ms Levesque had engaged In Inappropnate behavIOur contnbutIng to a pOIsoned work envIronment. On February 16 1999 based on the InVestIgator's conclusIOns, the Mimstry decIded to dIscharge the gnevor In pertInent part, the letter of dIscharge states as follows CONCLUSIONS The findIngs of the WDHP InVestIgator were that on a balance of probabIlItIes, none of your allegatIOns were substantIated. He goes on to 37 conclude "the complaInant's allegatIOns agaInst the respondent constItute bad faith" The InVestIgatIOn also dIsclosed numerous examples of your Inappropnate behavIOur In the workplace The mImstry takes WDHP complaInts very senously and false allegatIOns cannot be tolerated. ThIS InVestIgatIOn took five months to complete, Involved the partIcIpatIOn of 20 wItnesses, and necessItated the removal of the respondent from the workplace form August 27 1998 to present. An Independent InVestIgator was commIssIOned to conduct thIS InVestIgatIOn at consIderable expense to the mImstry and has dIsrupted thIS workplace to such an extent that It wIll be necessary to put steps In place to ensure workplace restoratIOn. The mImstry has concluded that you dId file thIS complaInt In bad faith. The eVIdence IndIcates that your filIng thIS complaInt was dIrectly related to your desIre for "a Job/upgrade" A wItness recalls you tellIng hIm sometIme In 1998 that you "had a sure fire way of settlIng a Job posItIOn" InformatIOn provIded to the InVestIgator by wItnesses IndIcate that shortly after becomIng aware that the respondent was not retmng, you IndIcated that he was sexually harassIng you. You provIded the InVestIgator WIth a document whIch IndIcated that your complaInt could be resolved by the employer provIdIng you wIth traInIng courses In the functIOns dIrectly related to the functIOns the respondent performs In order to learn about hIS Job On August 24 1998 you requested that your Manager dIrectly assIgn you, on a temporary basIs, to a vacant secondment posItIOn at a hIgher classIficatIOn. The InVestIgator IndIcates In hIS report that "the complaInant's concern about her Job specIficatIOn and her Job secunty has been a reoccurnng theme throughout thIS InVestIgatIOn." The mImstry has, therefore concluded that not only dId you file thIS complaInt In bad faith, but you also engaged In Inappropnate behavIOur In the workplace whIch contnbuted to a pOIsoned work envIronment. At the arbItratIOn heanng, the Mimstry called WillIam Cann, a VehIcle InspectIOn AdmInIstrator He testIfied that In early to mId-1998 he was havIng a cIgarette WIth Ms Levesque when they began talkIng about her secondment and that she wanted somethIng permanent. He testIfied that she told hIm that she "had a sure fire way to get a Job" or 38 words to that effect. He dId not ask her what she meant by that and dId not thInk much about It untIl he learned that Rowland had been sent home In August 1998 Ms Levesque dId not address thIS testImony at the heanng even though It was specIfically mentIOned In the letter of dIscharge It was not refuted. It was not explaIned. It stands unrebutted. Dunng the InVestIgatIOn and at the arbItratIOn heanng, numerous other IncIdents were raised, a number by Mr Rowland. Most of those allegatIOns, but not all, were demed by the gnevor In terms of the Maryland tnp Mr Rowland alleged that the gnevor was In hIS room on Wednesday before dInner to have a dnnk. He went Into the washroom and when he came out, Ms Levesque had her blouse open and her bra raised up over her breasts and said, "you said I had a mce body I'll let you see It" or show It to you. He said that he stood there, smIled, and IS not sure what he said. She then "fixed herself up" and they went to dInner ThIS was demed by Ms Levesque Rowland further testIfied that on theIr last mght In Maryland, late Thursday mght or early Fnday mornIng, after a party In the hotel bar from 4 30 P m. to some tIme after mIdmght, Levesque went to hIS hotel room wIth hIm. He stated that whIle at the party she wanted to go back to hIS room and show hIm a good tIme In hIS VIew she was alludIng to oral sex. He reached thIS conclusIOn because on the flIght to Maryland she had told hIm that It was the "wrong tIme of the month." He testIfied that she said thIS when they dIscussed the reactIOn of theIr spouses to theIr travelIng together and she told 39 hIm that her husband need not worry because It was the wrong tIme of the month for her She acknowledged that she said thIS to hIm, but only to answer hIS questIOns as to why she was so qUIet. Rowland testIfied that they "closed down the bar" and he walked her to the elevator where she InsIsted, loudly on gOIng to hIS room He said thIS embarrassed hIm so they went to hIS room. He stated that he had partIed wIth her before and felt she was "a gonner" He gave her a vodka and PepsI, whIch she drank, and then she stood up and said to hIm "kiss me" so he dId. He said they fell back onto the bed and spent about ten mInutes "gropIng" each other when she said that she wasn't aroused. NeIther was he SInce they both had a lot to dnnk. They then sat on the bed and talked. Dunng theIr talk, she told hIm about sexual harassment gnevances she had filed agaInst two managers, one who requested oral sex In exchange for a Job and what had happened. After a half-hour they were both sleepy and he took her to the elevator and she went to her room. Ms Levesque demes thIS allegatIOn. On cross-eXamInatIOn, It became clear that Rowland dId not correctly recall the dates of the Maryland tnp TheIr expense claim forms IndIcate that they returned to Ontano on Thursday not Fnday But even then Rowland was convInced they returned on Fnday He also could not recall regIstenng for a tnp to WashIngton, DC dunng the conference but he made a claim for that expense, as dId the gnevor even though neIther of them attended. AccordIng to the gnevor the only tIme that she was In Rowland's hotel room dunng the tnp besIde the bIkIm IncIdent, was on Tuesday mght, after a 40 manager's cocktaIl party to obtaIn a flyer about the WashIngton, DC tnp Rowland testIfied that she was not In hIS room on Tuesday mght. On cross-eXamInatIOn, Rowland stated that he was not concerned about the gnevor's revealIng to hIm that she had filed sexual harassment gnevances She told hIm that they were fnends and, from hIS perspectIve, she had taken the ImtIatIve "most of the tIme all of the tIme" He found her to be a fun, bubbly person and had told hIm that she was "one of the guys" He stated that It was not untIl August 25 1998 when she screamed at work "1'11 never sleep wIth you" that he thought he mIght become her thIrd gnevance on the Issue Other allegatIOns raised by Rowland Included Ms Levesque brushIng agaInst hIm wIth her breasts at work and he elbowIng her In return, her brushIng her breasts agaInst hIS ear causIng hIS heanng aid to squeal, her touchIng hIS thIgh and pushIng her buttocks Into hIS groIn. He also said that on several occaSIOns, he had hIS hand on a desk when she would come over and put her crotch there and he would flIck hIS finger at her to get her to back off Levesque demed all of thIS He said that she would hIke her skirt up and adJust her pantyhose He stated that on one occaSIOn, she came In wIth a black leotard and short skirt and he asked her "what the hell you got on there?" although on cross- eXamInatIOn he demed saYIng that, and she lIfted her skirt, saYIng "lIke It?" Later he told another employee, Dave Allen, to check out her leotard and she lIfted her skirt agaIn, tWIrled around and laughed, and later dId It WIth WillIam Cann. He could not recall the 41 gnevor askIng hIm not to do that, as Cann testIfied. He stated that she also made motIOns as If to grab hIS crotch, although she never actually dId so Rowland further stated that she once told hIm, In Dave Allen's presence that he was "well hanged." Allen then corrected her by saYIng she meant, "well hung." ThIS was confirmed by Allen. Ms Levesque acknowledged that she said that. She testIfied on cross-eXamInatIOn that In the Spnng of 1998 she came Into get a report from Rowland whIle Dave Allen was there She said that he grabbed hIS pnvates, shook them and said, "Come on baby come SIt here" She said "no" and then said to Allen "well, he looks well hanged." She admItted, on cross-eXamInatIOn, that she dId not mentIOn thIS to the InVestIgator She stated that she thought, at the tIme, that Rowland's conduct was Inappropnate but that she thought she could handle hIm by saYIng "no" FInally Rowland told the InVestIgator and testIfied at the heanng that In February 1998 Ms Levesque put a pair her pantIes on a co-worker's head and Joked that he was the "only one who could say that he got Into my pants" ThIS was acknowledged by the gnevor Rowland testIfied that these kInds of InteractIOns had gone on so long that they dId not mean anythIng and were not sexual In nature He said she would gIggle and he would laugh. SImIlarly the gnevor repeatedly testIfied that "thIS was the way Barne was " 42 On February 22, 1999 Rowland was gIven a four-day suspenSIOn for engagIng In five Instances of Inappropnate workplace conduct whIch contnbuted to a pOIsoned work envIronment. He testIfied that he dId not gneve thIS dIscIplIne because he felt that It would not have been resolved by the tIme he retIred. The eVIdence showed that Ms Levesque was qUIte famIlIar wIth the gnevance process as well as the complaInt process under the Ontano Human Rights Code In 1991 she filed a harassment and classIficatIOn gnevance whIch was resolved through a Job upgrade In 1992, she filed a sexual harassment gnevance In May of 1992, she filed five formal complaInts under the WDHP resultIng In three InVestIgatIOns In 1995 she filed a complaInt under the Human Rights Code whIch was dIsmIssed In 1996 because the allegatIOns were untImely filed. As a result, she acknowledged that she was aware of the Importance of tImely reportIng of alleged harassment. She had also filed other gnevances, IncludIng the one that led to her secondment In the Safety Net umt. Levesque also knew that Rowland could not Just "gIve" her hIS Job He was a bargaInIng umt employee wIth no control over the Job competItIOn that would fill hIS posItIOn upon hIS retIrement, or decIde whether It would, In fact, be filled. She was aware that there would be a competItIOn for It and that the more she was able to learn, the better her chances would be The eVIdence showed that Rowland dId try to assIst Levesque by traInIng her In Safety Net, by suggestIng she learn D-Base, and learn the InstructIOnal element of the Job 43 In CentralIa. He would tell her that these thIngs would look good on her resume and help her get the Safety Net Job If she applIed. But there IS no eVIdence - even from Ms Levesque - that he promIsed her hIS Job and Levesque as a long-servIce employee, was fully aware that he could not do so In none of Ms Levesque's specIfic allegatIOns agaInst Mr Rowland dId she allege that he had promIsed her hIS Job In exchange for sex or sexual favours The only allegatIOn that comes close to that IS her allegatIOn that Rowland told her she would have to "take care of the boss" If she wanted hIm to speak to management about a J ob upgrade As a long-servIce employee, Levesque was also well aware of "actIng" managers Even though there was a dIStInCt lack of a management presence In the Safety Net umt after Mr Carbert left, there were managers around, most notably Mr Beatty to whom the gnevor went to for approval of her D-Base traInIng In January 1997 The eVIdence IS clear that If she had wanted to find a manager she could have done so The eVIdence IS also clear that she had ample opportumty to raise what occurred wIth both Goodale and Beatty In Apnl 1998 but dId not do so Instead, she chose to work even more closely wIth Mr Rowland. Positions of the Parties. A. The Employer The Employer asserts that the eVIdence establIshes that Ms Levesque filed false allegatIOns agaInst her co-worker Barne Rowland and that she dId so In bad faith, and that she engaged In Inappropnate workplace behavIOur whIch contnbuted to a pOIsoned 44 work envIronment. AccordIngly It submIts that It has establIshed Just cause for the gnevor's termInatIOn. In the Employer's VIew thIS case turns on credIbIlIty and It relIes on the test for credIbIlIty set out In Faryna v Chorny [1952] 2 D.L.R. 254(B C C A) In whIch the testImony of an Interested wItness must be assessed In relatIOn to "ItS consIstency WIth the probabIlItIes that surround the currently eXIstIng condItIOns" It also cItes to OPSEU (McGoyt,an) and Ministry of Community and Social Services GSB No 0888/85 (Draper Vice-Chair) whIch adopts the Fmyna test. The Employer submIts that the gnevor's testImony IS InCOnsIstent WIth the probabIlItIes Overall, It pOInts to the substantIal delay In the gnevor's reportIng allegatIOns of senous sexual assault, even though she was aware of the Importance of tImely filIng. She never told anyone - co-workers or management - of these allegatIOns at the tIme, even though she felt qUIte comfortable dISCUSSIng sexual matters wIth men generally More specIfically the Employer cItes to the InCOnsIstencIes In the gnevor's story about the bIkIm IncIdent, partIcularly In relatIOn to the glass of PepsI It submIts that It IS Improbable that nothIng happened In relatIOn to the two glasses If she was pulled forcefully Into the hotel room by her bIkIm top as alleged. It also submIts that It IS unlIkely she walked through the hotel In Just her bIkIm wIthout some sort of top or cover- 45 up It submIts that It IS Improbable that Just a few hours after such an assault, the gnevor would have dInner wIth Rowland and every meal wIth hIm thereafter The Employer also submIts that the gnevor's allegatIOn that Rowland proposItIOned her on theIr last afternoon In Maryland, a few hours before they were to leave IS Improbable In ItS vIew after spendIng five days and mghts together It makes no sense that he would suggest they rent a room at that partIcular tIme Nor It submIts, If thIS occurred as alleged, IS It probable that the gnevor would have accepted a nde home wIth hIm from the airport. In terms of CentralIa, the Employer relIes on the fact that Mr Dodsley dId not support the gnevor's testImony and could recall nothIng out of the ordInary when she and Rowland were there It asserts that It IS Improbable that the gnevor would have accepted a 311z hour nde alone wIth Rowland after Maryland or nde home alone wIth hIm after what she alleges occurred there Nor It asserts, IS It probable that she said nothIng to Dodsley or anyone else about Rowland's attempt to push her Into hIS room, but Instead sat wIth them as If nothIng happened. It also submIts that It IS beyond reason that Rowland would try to push her Into hIS room wIth Dodsley only a few feet away In terms of the gnevor's allegatIOn that Rowland tned to touch her breasts at work, the Employer submIts that thIS IS also IncredIble It contends that the alleged assault took place In the mIddle of the day at work, wIth other employees only steps away and well wIthIn heanng dIstance It argues that It IS IncredIble that no one heard her scream, as she 46 asserts, and that she dId not ImmedIately march Into a manager's office to report thIS IncIdent. In fact, It pOInts out that the gnevor never reported thIS even when she met wIth Mr Goodale the next day or anytIme thereafter It submIts that her excuse that she was embarrassed does not nng true gIven her abIlIty to dISCUSS IntImate sexual matters wIth male colleagues The Employer submIts that none of the gnevor's other allegatIOns nng true or make any sense In each case, the gnevor's response IS not what one would reasonably expect someone to do In terms of Rowland's puttIng hIS foot on her crotch, It submIts that If the first IncIdent occurred as she alleged, why would she put herself In exactly the same sItuatIOn agaIn? It contends that there are a lot of ways to plug In an electncal cord wIthout puttIng herself In an IdentIcal posItIOn. The Employer argues that In all of the cases, Rowland's testImony IS far more credIble It contends that Rowland's testImony was straight and clear about what dId and dId not happen, and hIS testImony was supported by other wItnesses It submIts that Rowland's testImony has a clearer nng of truth and probabIlIty It also submIts that Rowland, who had retIred, had nothIng to gaIn or lose by hIS testImony In contrast to Ms Levesque It pOInts out that Ms Levesque's testImony was not corroborated In any sIgmficant way It contends that the Board need not rule on all of Rowland's allegatIOns, or find that all of Rowland's testImony IS true, to rule that the gnevor's allegatIOns were false In support of thIS contentIOn, the Employer cItes to OPSEU (McGoyt,an) and 47 MinistlY of Community and Social Services (1987), GSB No 0888/85 (Draper Vice- Chair) The Employer submIts that the gnevor knew that Rowland, as a bargaInIng umt employee, had no control over who would get hIS Job upon retIrement or control over her posItIOn specIficatIOn. He was not a manager and had no control over the gnevor's status It contends that hIS comment "you know what you have to do" was sImply a reference to the fact that she had to go to management, not hIm, and was not proposItIOn. It argues that In lIght of her understandIng about the hmng process In government, her shoutIng out on August 25th that he promIsed her hIS Job If she would sleep wIth hIm can only be vIewed as planned In order to bolster her claims The Employer argues that the eVIdence strongly supports the conclusIOn that the gnevor filed her claims In bad faith In order to secure a Job/upgrade It notes the testImony of WillIam Cann that she had a "sure fire way of gettIng a Job" her "counterproposal" placIng her temporanly In the OAG-8 posItIOn, her InSIstence on progressIng WIthIn Safety Net and gettIng Rowland's Job In the alternatIve, the Employer argues that even If the absence of a bad faith motIve, dIscharge IS warranted If the Board finds that the gnevor filed false allegatIOns It submIts that If the allegatIOns were false, bad faith may be Inferred. 48 The Employer submIts that the gnevor's mIsconduct - her lIes about what occurred - constItute a senous, Inseparable breach of the employment relatIOnshIp In support of Its assertIOn, the Employer relIes on Re Bullmoose Operating COlp and CE.P Loc 443 (2000), 88 L.AC (4th) 317 (Larson) and Deigan and Treasury Board (Industry Canada)(1995) 27 PSSRB DecIsIOns 31 (DIgest) It submIts that Ms Levesque lIed from the outset and contInued her lIes throughout the InVestIgatIOn and at the arbItratIOn heanng. The Employer asserts that an allegatIOn of sexual harassment IS an extremely senous allegatIOn whIch can have devastatIng consequences to the accused IndIVIdual In support of ItS assertIOn the Employer cItes to Re Canadian National Railyt,ay and Canadian Brotherhood of Railyt,ay Transport & General Workers (1988), 1 L.AC (4th) 183 (M.PIcher) Re Canadian Union of Public Employees and Office and Professional Employees International Union, Local 491 (1982), 4 L.AC (3d) 385 (SwInton) It submIts that dIscharge IS the appropnate penalty for filIng a false allegatIOn. In the alternatIve, the Employer contends that the gnevor be awarded pay In lIeu of reInstatement, relYIng on Deigan and Treasury Board (Industry Canada) supra. B. The Union The Umon submIts that It IS unprecedented for the Employer havIng concluded, on a balance of probabIlItIes standard, that the eVIdence dId not support the gnevor's claims, to then decIde that they were filed In bad faith and termInate the gnevor's employment. 49 The Umon submIts that thIS second step If sustaIned, wIll have a chIllIng Impact on IndIVIduals bnngIng forward complaInts of sexual harassment and dISCnmInatIOn. It lIkens It to a gnevance beIng dIsmIssed because It was not establIshed on the balance of probabIlItIes and then concludIng that because It was not, the gnevor should be dIsmIssed. The Umon agrees that thIS case largely rests on credIbIlIty and supports the test for credIbIlIty set out In Faryna, supra It dIsagrees, however that thIS standard supports the Employer and submIts that on a balance of probabIlItIes, the gnevor's assertIOns can be substantIated. ThIS IS partIcularly true, It argues, when one consIders Mr Rowland's personalIty as well as that of Ms Levesque It asserts that It IS only when the Board consIders the kInd of man Rowland IS that Ms Levesque's actIOns begIn to make sense and lend an air of credibIlIty to her testImony The Umon submIts that Rowland had a forceful, In charge, confident personalIty and that he acted as a de facto supervIsor of the Safety Net umt. He would not admIt he was wrong even In the face of contrary eVIdence such as the dates of the Maryland tnp or hIS regIstenng for the WashIngton, D C excursIOn. In ItS VIew he ran "hot and cold" about Levesque, sometImes warm and encouragIng her In her career and sometImes short- tempered and yellIng at her The dynamIcs between them, In the Umon's submIssIOn, explaIn why Levesque wIthstood Rowland's conduct for so long wIthout reportIng It to management It submIts that Levesque wanted Rowland to traIn her so that she would be In a good posItIOn, expenence-wIse to compete for hIS Job when he retIred. It argues that 50 only Rowland could traIn her there was no one else and so her optIOns were lImIted. The umon argues that whIle other employees lIke Dora CortelluccI could aVOId Rowland, Levesque could not. She had to work closely wIth hIm. The eVIdence showed, It asserts, that the gnevor was often upset at work, whIch demonstrates that somethIng had happened, not nothIng as the Employer asserts The fact that she told Dora that Rowland wanted to sleep wIth her also IndIcates that somethIng happened In Maryland and CentralIa. The Umon further submIts that the gnevor's partIcIpatIOn In relaYIng sexual stones does not IndIcate her acceptance of unsolIcIted and unwanted touchIng. In support of Its posItIOn, the Umon relIes on Strauss v Canadian Property Investment COlp et al. (1995) 24 C.H.R.R. D/43 (Bassford) The Umon further contends that the matters whIch Rowland admItted to - flIckIng hIS finger at Levesque's groIn, puttIng hIS foot on her buttocks - demonstrate that Rowland was the type of man who thought It was okay to playfully pull her bIkIm top and bottom It submIts that such conduct would not be out of character for hIm. It submIts that It could have happened, as alleged by Ms Levesque The Umon contends that the Employer makes too much of the full/empty PepsI glass In terms of the bIkIm IncIdent and suggests that the dIfference IS a reflectIOn of the fact that EnglIsh IS the gnevor's second language, not a change In her story In ItS submIssIOn, It IS entIrely credIble not to leave the PepsI glasses at the pool and that It IS not unusual for people to pIck up after themselves or for the gnevor to have walked through the hotel In her bIkIm, partIcularly In the southern U S Nor It submIts, IS It 51 surpnsIng that the gnevor contInued to dIne wIth Rowland after the bIkIm IncIdent SInce she knew no one else there and she IS a socIal person, on her first busIness tnp The Umon submIts that whIle some of the gnevor's stones may sound odd, they make more sense than Rowland's testImony In ItS submIssIOn, Rowland's testImony that the gnevor pulled up her bra for hIS VIeWIng pleasure and he said and dId nothIng IS patently IncredIble It notes that hIS assertIOn that hIS recollectIOn was better at the heanng than when he met wIth the InVestIgator In the fall of 1998 renders hIS entIre testImony suspect. In support of thIS contentIOn the Umon cItes to Re Canadian National Railyt,ay Co and Canadian Brotherhood of RaiMay Transport & General Workers, supra The Umon argues that even If the gnevor's allegatIOns cannot, on the balance of probabIlItIes, be sustaIned, the Board then cannot take the quantum leap of concludIng that they were made In bad faith. The Umon contends that there IS no eVIdence of bad faith by Ms Levesque It submIts that the confrontatIOn between Ms Levesque and Rowland on the mormng of August 25th was not a planned, premedItated encounter Instead, when Rowland told the gnevor she could eIther get another Job or do data entry Ms Levesque sImply lost It. The Umon notes that Rowland's response was only to "keep It down" and that he dId not, at the tIme, deny her allegatIOns nor was he surpnsed by them as one mIght expect. It asserts that the fact that she submItted a "counterproposal" IS also not IndIcatIve of bad faith. The proposal, It notes, was to place her In the OAG-8 posItIOn as a temporary measure only whIle InVestIgatIOn pendIng. In ItS VIew such a suggestIOn was logIcal 52 The fact that she dId not want, after two years, to gIve up on Safety Net and was not Interested In permanent Job outsIde Safety Net was reasonable under the CIrcumstances and does not mean that she made the allegatIOns In bad faith. The Umon also contends that the "tnggenng event" was Rowland's attempt to touch the gnevor's breasts at work, not the delay In hIS retIrement date It submIts that her belIef that she could handle Rowland by saYIng "no" was not unreasonable Nor IS It unreasonable, In ItS VIew for an employee not to run to management at the first Instance of harassment, CItIng Piazza v Ailport Taxi Cab (Malton) Association et al. (1985) 7 C.H.R.R. D/3196 (Zemans) The Umon contends, In the alternatIve, that a penalty other than dIscharge IS appropnate In thIS case It notes that Ms Levesque IS a long-servIce employee wIth a clean work record. It argues that a penalty less than dIscharge would be sufficIent to ensure that no sImIlar conduct occurred In the future The Umon also cItes to management's responsIbIlIty In thIS case It notes that even though It was aware of Rowland's temper It placed Ms Levesque wIth hIm to be traIned and when she complaIned about hIS temper took no actIOn because the gnevor dId not request any It pOInts to the mImmal to nonexIstent management presence after Mr Carbert left, and contends that management effectIvely Ignored the umt, leavIng Mr Rowland effectIvely In charge It contends that there was no traInIng about sexual harassment and that management set no boundanes In regard to appropnate office 53 behavIOur It notes that It was Ms Levesque's complaInt whIch revealed that a pOIsoned work envIronment eXIsted wIthIn the umt and yet she was dIscharged as a result. The Umon also argues that thIS IS not an appropnate case for payment In lIeu of reInstatement as suggested by the Employer RelYIng on Ontario Liquor Board Employees Union (Massa) and Ontario Liquor Control Board of Ontario (2000), GSB No 2033/97(Abramsky Vice-Chair) the Umon argues that the relevant factors whIch show that an employee should not be reInstated are absent In thIS case Instead, the Umon asserts that the gnevance should be upheld, the gnevor should be reInstated wIth full back pay and benefits, and that general damages of $5000 00 to compensate the gnevor for sexual harassment should be awarded. DECISION ThIS IS an extraordInanly dIfficult case to decIde because It IS very dIfficult to determIne what actually happened between Levesque and Rowland, partIcularly In Maryland. But a decIsIOn must be made and for qUIte a vanety of reasons, I conclude that there IS clear and conVInCIng eVIdence that the allegatIOns made by the gnevor were false and that she complaIned In order to achIeve a more secure Job or a Job upgrade 54 Without questIOn, thIS case turns on credIbIlIty Most of the allegatIOns made by Ms Levesque were demed by Rowland and VIce versa. In Faryna v Chorney supra at p 356 the Court held as follows (cItatIOns omItted) The credIbIlIty of Interested wItnesses, partIcularly In cases of conflIct of eVIdence cannot be gauged solely by the test of whether the personal demeanor of the partIcular wItness carned convIctIOn of the truth. The test must reasonably subJect hIS story to an eXamInatIOn of ItS consIstency WIth the probabIlItIes that surround the currently eXIstIng condItIOns In short, the real test of the truth of the story of a wItness In such a case must be ItS harmony wIth the preponderance of the probabIlItIes whIch a practIcal and Informed person would readIly recogmze as reasonable In that place and In those condItIOns In OPSEU (McGoyt,an) and Ministry of Community and Social Services) supra, the Board adopted the Fmyna test quoted above, and also cIted R. v Pressley (1949) 1 W W.R. 692, at p 9 as follows The most satIsfactory JudIcIal test of truth lIes In ItS harmony or lack of harmony wIth the preponderance of probabIlItIes dIsclosed by the facts and CIrcumstances In the condItIOns of the partIcular case In thIS case the gnevor's testImony was often emotIOnal and heartfelt. She repeatedly "swore to God" that she was tellIng the truth. Unfortunately much of Ms Levesque's testImony IS sImply InCOnsIstent WIth the probabIlItIes affectIng thIS case as a whole Overall, It lacks "harmony wIth the preponderance of probabIlItIes" A number of thIngs are sIgmficant to my conclusIOn. FIrst, the gnevor IS a mature relatIvely SOphIstIcated IndIVIdual who had prevIOUS expenence In relatIOn to sexual harassment claims and gnevances She was not a young, naive IndIVIdual In her first Job She was defimtely not In awe of Mr Rowland, or scared to VOIce her concerns 55 and Issues to management. When she had a problem, she complaIned and often gneved It. In fact, It was a gnevance that led to her secondment In the Safety Net Umt. Throughout her tIme In the Safety Net Umt, she was clearly capable of complaInIng, knew how to complaIn and knew how to file gnevances, IncludIng gnevances allegIng sexual harassment. In fact, she dId complaIn about qUIte a number of thIngs to management dunng the relevant tIme penod - her lack of a posItIOn specIficatIOn, Mr Rowland's temper her workload - but NOT the alleged ongOIng, senous sexual harassment by Mr Rowland. In thIS regard, although the eVIdence demonstrates a dIStInCt lack of management presence In relatIOn to the Safety Net Umt after Mr Carbert left In July 1996 the gnevor was clearly aware how to find a manager when she needed one ThIS IS eVIdent from her seekIng approval for a D-Base traInIng course from Mr Beatty a manager In January 1997 She was also well aware of the publIc servIce's use of "actIng" managers and although Mr Goodale was not her regular manager she knew or surely ought to have known that he was her actIng manager startIng In February 1997 or thereabout. WhIle he may have told her In August 1997 when she asked hIm about her posItIOn specIficatIOn that he was not her "manager" he was clearly her actIng manager and she was aware of that. Also as noted, she complaIned to management about other matters dunng thIS tIme Ms Levesque was also well aware of the Importance of tImely filIng sexual harassment complaInts In February 1996 her complaInt before the Ontano Human Rights CommIssIOn was dIsmIssed, In part, because of delay In filIng her claims, and thIS 56 was fully set out In the CommIssIOn's case analYSIS report whIch she read at the tIme AccordIngly when the events occurred In Maryland In June of 1997 and In CentralIa In January of 1998 she knew that such matters had to be reported In a tImely manner but she dId not report them Ms Levesque's assertIOn that she dId not complaIn because she felt she could "handle" Rowland by saYIng "no" nngs hollow after CentralIa. It may have been plausIble after Maryland, the first alleged sexual assault and proposItIOn, but not after CentralIa. After CentralIa, when Rowland agaIn allegedly assaulted and proposItIOned her the gnevor's assertIOn that she thought she could handle hIm by saYIng no IS Just not plausIble If her testImony IS to be credIted about what occurred, Rowland clearly dId not get It that "no means no" Yet IncIdent after alleged IncIdent occurred thereafter and many many months went by before the gnevor reported anythIng to management. It also appears that Ms Levesque's explanatIOn for not reportIng these IncIdents to management was not entIrely consIstent. She told Dora CortelluccI that she would not report Rowland because of an earlIer stressful sexual harassment complaInt and because she was afraid of her husband's reactIOn. She dId not mentIOn beIng able to handle Mr Rowland. At the heanng, she mentIOned the earlIer complaInt and repeatedly stated that she thought she could handle Rowland by saYIng no She dId not mentIOn concern about her husband's reactIOn. To the InVestIgator she said that she felt that management would not do anythIng about It and mentIOned her earlIer complaInt. She dId not tell the 57 InVestIgator that she thought she could handle Mr Rowland by saYIng "no" She dId not mentIOn her concern about her husband's reactIOn. In addItIOn, Ms Levesque's explanatIOn that she dId not report the gnevor's sexual assaults to management In August 1998 because she was "embarrassed" does not nng true She was qUIte comfortable dISCUSSIng IntImate sexual stones wIth male colleagues, so It IS dIfficult to credIt that she would be embarrassed to report these alleged assaults to management A fact that IS very damagIng to the gnevor IS the fact that she had a full opportumty to report what occurred to Mr Goodale and Mr Beatty In late Apnl 1998 At the heanng, Ms Levesque testIfied that "because of these IncIdents" of sexual harassment by Rowland, she "was gettIng upset" wIth hIm and In May 1998 when she saw Beatty she asked for a meetIng wIth management. But when the meetIng took place, she dId not complaIn about Rowland's sexual assaults or harassment. Instead, she complaIned about Rowland's IrntabIlIty due to hIS prostate problems and told them that the demands of her Job dutIes between Safety Net and office admInIstratIOn were too much for her to handle ThIS meetIng was a pnvate one wIth management - a perfect opportumty to report Rowland's Inappropnate behavIOur The outcome of thIS meetIng IS even more dIfficult to understand In lIght of the gnevor's assertIOns of sexual assault and harassment. At the meetIng, Mr Goodale and Mr Beatty gave the gnevor three optIOns to address her concerns (1) return to her home 58 posItIOn, (2) work 100% on office admInIstratIOn or (3) work 100% wIth Mr Rowland on Safety Net. Ms Levesque chose optIOn #3 to work 100% of her tIme WIth Mr Rowland, the colleague who was sexually assaultIng and harassIng her Thus, not only dId Ms Levesque fall to report what had been happemng for the past year but she put herself In a posItIOn whereby she would be workIng even more closely wIth the alleged harasser ThIS decIsIOn IS hard to reconcIle wIth her allegatIOns of harassment. The Umon suggests that the gnevor's chOIce and decIsIOn not to report Rowland make sense In lIght of the gnevor's desIre to be traIned on Safety Net. The eVIdence clearly shows that the gnevor took her conversatIOn wIth Mr Carbert In July 1996 to heart. At that tIme he told her that If she took ImtIatIve and learned about Safety Net from Rowland, It would be good opportumty for her to advance when Rowland retIred In a few years The eVIdence showed that Rowland dId traIn her on Safety Net, suggested computer courses she should take, provIded her wIth a computer to take home wIth vanous programs, and suggested she attend the traInIng program In Maryland. He also agreed that she could partIcIpate In learmng the InstructIOnal aspect of the Job In CentralIa. But the record IS decIdedly unclear what addItIOnal "traInIng" on Safety Net she expected or wanted from Rowland after Apnl 1998 ASIde from some specIal proJ ects he was workIng on Independently there IS no eVIdence that he demed her any traInIng she requested. There IS no questIOn that the gnevor truly aspIred to Rowland's Job That aspIratIOn explaIns a lot of the gnevor's behavIOur It explaIns why she reJ ected 59 Goodale's proposal that she should apply for the vacant OAG-8 posItIOn on August 21 1998 She thought that by applYIng for another Job she was precludIng any possIble posItIOn In Safety Net. Unfortunately It also explaIns why when she learned that Rowland had delayed hIS retIrement untIl 2002, she sought another avenue to obtaIn advancement. The eVIdence clearly shows that the gnevor knew on August 21 1998 when she reported the alleged sexual harassment to Goodale that Rowland had delayed hIS retIrement. Instead of 1998 - the "few years" that Mr Carbert had IndIcated - It was now to be 2002, four years later Her knowledge of that fact on August 21 st IS establIshed by Mr Goodale's notes of theIr meetIng on August 21 st whIch were wntten on August 24 1998 a full day before the gnevor testIfied that she learned about It. GIven her statement to Goodale on August 21 It IS not possIble that the gnevor learned about It on August 25th AccordIngly she knew at the tIme she reported Mr Rowland's actIOns, that he had delayed hIS retIrement date The gnevor also fully realIzed that Rowland was not In a posItIOn to gIve her hIS Job when he retIred. She fully realIzed that the posItIOn would be posted and there would have to be a competItIOn for It. As a result, her statement to Goodale on August 21 1998 that Rowland had promIsed her hIS Job In exchange for sexual favours makes no sense LIkewIse, her loud and heated accusatIOn to Rowland on August 25 1998 that he had promIsed If she "slept wIth hIm she would get hIS Job" makes no sense As a long servIce publIc servant she knew how the system worked. She knew that a bargaInIng umt 60 employee lIke Mr Rowland had no say about who would succeed hIm upon retIrement. Even Dora CortelluccI testIfied that she heard the gnevor ask Rowland who would get hIS Job when he retIred and Rowland replIed that management would have a competItIOn and they "would hIre whomever they want." A. The Alleged Incidents of Sexual Assault and Harassment 1 The Maryland Bikini Incident The overall context recIted above colours my reVIew of the testImony of Ms Levesque and Mr Rowland concernIng the bIkIm IncIdent. Although I do not find It strange that someone would carry a hard glass - empty or full - that she had brought to a pool area back to her room, or even walk through a hotel clad only In a bIkIm, there are a number of InCOnsIstencIes In the gnevor's story that undermIne her credIbIlIty FIrst IS the change In her testImony about whether the glasses were full or empty On cross-eXamInatIOn, she was specIfically asked whether they were carryIng the glasses "because they had PepsI In them?" and she responded "yes" A short tIme later she stated that the glasses had "no PepsI In It." It IS dIfficult to attnbute thIS change to the gnevor havIng EnglIsh as a second language The first questIOn posed was qUIte clear as was her response It IS also a sIgmficant change In lIght of her allegatIOn that Rowland pulled her bIkIm top so hard that she was physIcally pulled Into the room It would be logIcal that any lIqUId In the two glasses, or the glasses themselves, would have gone flYIng If they contaIned PepsI, yet no mentIOn of that was made to the InVestIgator or on eXamInatIOn- 61 In-chIef Also damagIng was her testImony that she dId not know where Rowland's room was as they entered the hotel from the pool, but her later statIng that she was takIng the glass to the table where they had obtaIned them whIch was past Rowland's room EIther she knew where hIS room was or she dId not. I also find It dIfficult to belIeve that the gnevor would agree to have dInner wIth Rowland a few hours after thIS assault. He allegedly not only forcefully pulled open the top of her bIkIm but also pulled open the bottom Yet, a few hours later she agreed to have dInner wIth hIm, and she had all of her meals wIth hIm after that. I found no eVIdence that she was "compelled" to have dInner wIth hIm, as she asserts Her explanatIOn that she felt she had to have dInner wIth hIm because she "owed hIm a dnnk" from the mght before IS not plausible I also find the Umon's explanatIOn that thIS was her first out of town busIness tnp and she dId not know anyone else InSUfficIent to explaIn her actIOns Surely she could have declIned to eat wIth hIm on that occaSIOn or thereafter SImIlarly I find her allegatIOn about the last day of the Maryland tnp undermIned by her subsequent conduct. Her contentIOn that he agreed to speak to management about a Job upgrade If she would sleep wIth hIm (i e "take care of the boss" "rent a room") IS undermIned by her acceptIng a nde home from hIm from the airport. It IS Implausible that after the bIkIm assault, followed by an Inappropnate sexual proposItIOn, that she would, on the same day accept a nde home wIth hIm alone In hIS car It also seems unlIkely that he would suggest that they rent a room, as she alleged, after spendIng five 62 days In Maryland, havIng Just checked out and whIle WaitIng for the shuttle bus to take them to the airport. Could these thIngs have happened? Yes, It IS conceIvable The eVIdence showed that Rowland and Levesque had an unusual work relatIOnshIp one filled wIth JokIng, IncludIng sexual Jokes, and touchIng. The gnevor IS an outgOIng, greganous person and she enJoyed beIng "one of the boys" Further Rowland testIfied to two sexually related epIsodes In Maryland whIch the gnevor flatly demed. It IS possIble that Rowland "playfully" pulled on her bIkIm It IS possIble that he told her she would have to "take care of the boss" Her flIppant reply that In that case she "would dIe an OAG- T' seems consIstent WIth theIr type of banter But the way It was alleged to have occurred - as an unwanted, unwelcome sexual assault, whIch left her shaken and upset and as an Improper sexual proposItIOn - IS not plausible or credIble 2. Centralia The gnevor's eVIdence regardIng Rowland's conduct In CentralIa In January 1998 IS substantIally weaker than her eVIdence about Maryland. Whereas It IS dIfficult to determIne precIsely what occurred In Maryland, If anythIng, there IS no support for her allegatIOns In CentralIa. Peter Dodsley an Independent wItness, could recall nothIng out of the ordInary about theIr VISIt. He testIfied that he would have clearly been able to hear It If she had shouted out as she claimed. 63 I find It hIghly ImplausIble that Rowland would try to force the gnevor Into hIS room In the presence of Mr Dodsley It IS also hard to credIt that the gnevor would reJOIn the two men ImmedIately after thIS IncIdent, say absolutely nothIng and act as If nothIng happened. The gnevor's explanatIOn for that was that Dodsley "knew Barne tned to push me Into hIS room" But that makes no sense If he knew he would not have acted as If nothIng had happened. As Dodsley testIfied, he would have "Intervened If somethIng Inappropnate was gOIng on, of course" In addItIOn, the gnevor agaIn accepted a 311z-hour nde home alone wIth Rowland when the seSSIOn was over DespIte her assertIOns about what occurred In Maryland, followed by thIS latest sexual assault In CentralIa, she dId not report It and made no attempt to find alternatIve transportatIOn. In terms of the gnevor's assertIOn that on theIr way home from CentralIa, Rowland repeatedly asked her If she wanted to stop at a hotel and sleep wIth hIm, I find that the gnevor's subsequent conduct undermInes her claims After the alleged Maryland IncIdents, followed by what allegedly occurred In CentralIa, It IS hard to belIeve that the gnevor dId not report anythIng to management and that she would choose to work more closely wIth hIm The eVIdence showed, moreover that even after CentralIa, theIr sexual JokIng and banter contInued. 64 In my VIew the gnevor's matunty semonty and pnor expenence wIth sexual harassment complaInts and gnevances dIstIngUIshes thIS case from those cIted by the Umon. In Canadian National Railyt,ay Co and Canadian Brotherhood of Railyt,ay Transport & General Workers, supra, the two female complaInants were "young and relatIvely new employees" Both were very young and had been on the Job less than four months when the alleged sexual mIsconduct by theIr supervIsor occurred. The most senous alleged IncIdents occurred on October 3rd and 10th and were reported to management on October 15th At the heanng, the Umon relIed on the fact that neIther complaInant raised any ImmedIate "hue and cry" when they were first subJected to physIcal advances by the gnevor and that when words of a sexual nature were openly addressed to them In the office they sImply laughed rather than raise any obJectIOn. ArbItrator Michel PIcher wrote, at p 199 In the arbItrator's VIew It IS neIther ImplausIble nor unlIkely that the first reactIOn of some women to overt sexual harassment mIght be sIlence SIlence can be the natural consequence of a woman's fear of embarrassment at the thought of publIcIZIng an unpleasant and humIlIatIng expenence It can also be motIvated by a natural fear of repnsal or the possIbIlIty of charges of lYIng for ultenor motIves or havIng provoked the male employee by conduct that InvIted sexual advances SImIlarly great care should be taken before charactenzIng a female's laughter In the face of overt sexual comments or teasIng as acceptance or encouragement of such conduct. For men and women alIke, laughter can be a ready shIeld for a number of awkward sItuatIOns The arbItrator accepts the eVIdence of [the complaInant's] that when they laughed In response to the sexual comments whIch [the gnevor] and others dIrected to them, they dId so largely because, as relatIvely Jumor employees who were In a dIStInCt sexual mInonty In the creWIng office they dId not know what else to do UnlIke the complaInants In Canadian Railyt,ay Ms Levesque IS a mature, semor employee and worked In an office where many women worked. She IS not shy nor dId 65 Mr Rowland IntImIdate her She dId not Wait Just days to report what occurred, she waited more than a year UnlIke the complaInants In Canadian Railyt,ay she knew what else she could do In Piazza v Ailport Taxi Cab (Malton) Association, supra, the Board of InqUIry determIned at p D/3200 that "the fact that [the complaInant] contInued to consent to dnve In the car wIth the Respondent despIte hIS advances, raises the SuspICIOn that [hIS] advances were not unwelcomed." Nevertheless, In the end, the adJudIcator found that the respondent's "outnght demals to be Incredulous" and accepted the complaInant's testImony over that of the respondent's In thIS case the gnevor's contInuIng sIlence, her decIsIOn to accept ndes from the gnevor and to work even more closely wIth hIm lIkewIse "raise the SuspIcIOn" that whatever occurred was not unwelcome But In contrast to Piazza, I find that I cannot accept the gnevor's testImony over that of Mr Rowland. Much of It sImply cannot be squared wIth what one would expect of a person ofMs Levesque's matunty expenence, semonty and hIStOry In addItIOn, overall, I generally found Mr Rowland's verSIOn of events to be more credIble than that of the gnevor even though I do not accept all of Rowland's testImony As noted by the Board In OPSEU (McGoyt,an) and MinistlY of Community and Social Services supra at p 9 "It goes wIthout saYIng that where the testImony of two Interested wItnesses IS In dIrect conflIct, It IS not necessary that the testImony of one be found to be credIble In every partIcular before It may be accepted over that of the other" Overall, he was candId about theIr InteractIOns and events, IncludIng some whIch dId not reflect well 66 on hIm. Also at the heanng, he had no motIve to lIe By that tIme, Rowland had retIred and there was no actIOn the Employer could have taken agaInst hIm had he admItted to the events as described by Ms Levesque SIgmficantly wIth the lImIted exceptIOn of some testImony by Ms CortelluccI, the gnevor's testImony was not supported or corroborated at all, even though some of the events alleged took place at work or In the presence of others Yet not one wItness was called to support Ms Levesque's allegatIOns I find thIS nearly complete lack of corroboratIOn of the gnevor's testImony to be qUIte damagIng, partIcularly In lIght of all of the other factors whIch undermIne her credIbIlIty In partIcular the absence of any supportIng testImony by Sandy Pennycock, who the gnevor testIfied urged her to report Mr Rowland and told her that she was "sIck and tIred of lIstemng to hIm abuse you " IS very damagIng. In contrast, Rowland's testImony was supported by others, IncludIng Peter Dodsley Dave Allen, WillIam Cann and, to a sIgmficant degree Dora CortelluccI 3 Rowland foot on crotch in May and June 1998. WhIle the eVIdence establIshes that Rowland Improperly placed hIS foot on the gnevor's buttocks In May of 1998 It does not support that he lIfted her up by hIS foot, startlIng her so that she hIt her head. Further the eVIdence demonstrates that thIS IncIdent was an example of the type of InteractIOn that eXIsted between Levesque and Rowland. In terms of the June IncIdent, I credIt Rowland's verSIOn over that of Levesque The second IncIdent occurred In the data entry area In the presence of three other operators, 67 IncludIng Dora CortelluccI Ms Levesque testIfied that she "yelled out" when Rowland touched her but there was no corroboratIOn of that assertIOn. Ms CortelluccI saw Ms Levesque go under the desk and only heard Rowland make a "smart alIcky" remark whIch could well have been hIS statement that "remember last tIme you got a boot In the ass" I find It ImplausIble that Rowland would have placed hIS foot, as alleged, In the presence of three data entry operators Also If she had "shouted out" as asserted, someone should have been able to corroborate that. It IS also damagIng to the gnevor's testImony that she saw Mr Goodale as she came out of the bathroom after thIS IncIdent and Goodale asked what the matter was, but dId not tell hIm. AgaIn, there was an opportumty to report what occurred to management and the gnevor dId not take It. Even If she was upset at that moment, she could have reported It to hIm later FInally If the first IncIdent was so unwelcome, It IS odd that the gnevor Just a few weeks later would put herself In exactly the same posItIOn. As counsel for the Employer stated In argument, there are many other ways to get under a table to Insert an electncal plug. 4 Attempt to touch the grievor's breasts. I do not credIt thIS assertIOn by the gnevor I find It hIghly ImplausIble that Rowland would attempt to assault the gnevor In thIS manner In mId-day In the mIddle of the office The partItIOns were only five feet hIgh and others were In close proxImIty easIly 68 able to hear a shout. I also find It dIfficult to understand, If thIS occurred, why she dId not ImmedIately Inform management SInce she testIfied that thIS was the "last straw" and she finally realIzed that Rowland dId not understand that "no" meant "no" Ms Levesque explaIned that she dId not ImmedIately report It because she was upset at the tIme But even after she calmed down, she dId not report It. Nor dId she report It the next day when she told Mr Goodale that Rowland had been sexually harassIng her She never mentIOned thIS assault, or Indeed, any of the assaults Her explanatIOn that she was embarrassed IS sImply not credIble She told Goodale that Rowland had promIsed her hIS Job In exchange for sex, but she dId not tell hIm about any of the sexual assaults, IncludIng one that allegedly occurred the day before and whIch prompted her to report Rowland's actIOns It sImply and sadly does not nng true B. Other Alleged Incidents of Harassment A number of the gnevor's allegatIOns of harassment center on Rowland's treatment of her when she made mIstakes SpecIfically she alleged that In October 1996 Rowland humIlIated and IntImIdated her after she made an error on the computer whIle makIng entnes Into the "shIpper overload proJect" that In February 1998 Rowland prevented her from makIng entnes Into the computer and threatened to changed the password, that In Apnl1998 Rowland swore at her and called her "dopey" The eVIdence showed that Rowland had a temper partIcularly when someone made a mIstake Rowland acknowledged thIS, although he mImmIzed the extent of hIS 69 temper But others, partIcularly Dora CortelluccI and Dave Allen, testIfied that Rowland had a qUIck temper and would often yell at people The eVIdence showed, however that thIS was not solely dIrected at the gnevor but was basIcally Rowland's way of operatIng. He yelled at the gnevor he yelled at Dora and he yelled at others The eVIdence does not establIsh that Rowland yelled at the gnevor "because" of her gender or sex. It should also be noted, accordIng to the gnevor Rowland began to "be harsh" wIth her In October 1996 well before the Maryland tnp The workIng relatIOnshIp between the gnevor and Mr Rowland appears to be somewhat akIn to the one cIted by the Employer In Re Canadian Union of Public Employees and Office and Professional Employees International Union, Local 491(1982), 4 LAC (3d) 385 (SwInton) In that case the gnevor attnbuted theIr dIfficultIes to her refusal to comply wIth sexual demands and to dISCUSS sexual matters, but the board of arbItratIOn concluded that the dIfficult workIng relatIOnshIp arose "from workIng styles and personalIty problems" and was "not sexual harassment." The gnevor the Board found at p 402, was "an IntellIgent, artIculate, hIghly analytIcal person, proud of her work and performance and frustrated by H's cntIcIsms, lack of apprecIatIOn, and InCOnsIstent orders" Although there was eVIdence that H was "a dIfficult person to work for" It found that "the gnevor IS not wIthout blame In H's reactIOns to her" The same IS true here The eVIdence also showed that use of the "f' word was qUIte commonplace at work by both Rowland and the gnevor as was use of the terms "dopey" and "grumpy" 70 and that all of It was Said In a JokIng manner The gnevor never told Rowland that she was offended by use of the "f' word or the term "dopey" or asked hIm to stop callIng her that. Instead, she called hIm "grumpy" Under these cIrcumstances, Rowland's sweanng at her and callIng the gnevor "dopey" does not constItute sexual harassment or dISCnmInatIOn. In terms of the February 1998 IncIdent, the eVIdence shows that the gnevor was not precluded from makIng data entnes, only that she had to use the desIgnatIOn "TEO" Instead of "ISO" The gnevor's assertIOn that Rowland threatened to change the password If she contInued to err was not supported by any corroboratIve testImony Nor dId he In fact, ever change the password. In terms of the gnevor's allegatIOn that In March 1998 he told her that she had to learn how to program vanous computer software on her own tIme, as he had, and she was to do It nght. AcceptIng thIS testImony as true, It does not establIsh dISCnmInatIOn on the basIs of sex or sexual harassment. SImIlarly there IS no corroboratIng eVIdence that Rowland told the gnevor that her stepfather "deserved to dIe" even though thIS was said In the presence of wItnesses Further even If It had been said, as alleged, It does not constItute dISCnmInatIOn on the basIs of sex or sexual harassment. 71 There IS no eVIdence that Rowland mIsled the gnevor about the course content In Maryland. On the contrary the gnevor's own admIssIOns establIsh that he tned to select courses that would be beneficIal to her If the courses turned out to be less than she had hoped, It was not due to Rowland's chOIces, whIch the gnevor was free to reVIse There IS no corroboratIve eVIdence that In June 1998 when new partItIOns were Installed that Rowland told Ms Levesque that he could now do anythIng he wanted to her The testImony of Dora CortelluccI supports the testImony of Rowland about what he said - that the partItIOns would offer the data entry operators more pnvacy and less dIstractIOn from passers-by The eVIdence supports the allegatIOn that Rowland told the gnevor In May or June 1998 to hIre better-lookIng temporary employees from the agency If she could. Rowland admItted thIS to the InVestIgator although at the heanng, he said another employee, Don Covello had said thIS to hIm as a Joke whIch he then repeated to Ms Levesque I conclude, however that thIS was said In a JokIng manner tYPIcal of the kInd of InteractIOns between them It was not an "order" that was expected to be fulfilled. There IS no eVIdence that eIther the gnevor or Rowland had any control over or Input Into who the temporary agency would send. As to the remaInIng allegatIOns, I find that they have not been establIshed. A lot of what occurred was consensual In nature and the gnevor was an equal and wIllIng 72 partIcIpant. The eVIdence does not support the conclusIOn that she was a vIctIm of unwanted, unwelcome and unsolIcIted sexual advances and Inappropnate comments C. Bad Faith The letter of dIscharge states that the gnevor was dIscharged because the mImstry concluded that she "file[ d] thIS complaInt In bad faith" In that the filIng "was dIrectly related to your desIre for 'a Job/upgrade '" GIven the senousness of the charge, the Mimstry must establIsh thIS by clear and conVInCIng eVIdence I conclude that Mimstry has sustaIned ItS onus There IS a great deal of eVIdence that the gnevor used the complaInt process In order to secure a more secure Job/upgrade There IS no questIOn that the gnevor took her conversatIOn wIth Mr Carbert In July 1996 to heart and that, from that pOInt on, she wanted to replace Rowland when he retIred "In a few years" To that end, she sought to learn as much as she could about Safety Net and what Rowland dId so that when he retIred, she would be In the best posItIOn to compete for the Job Her desIre to advance by obtaInIng Rowland's Job when he retIred was keen. For two years, thIS was her goal She clearly understood, however that Rowland dId not have the authonty or abIlIty to gIve her the Job AccordIngly her allegatIOn to Mr Goodale - that Rowland had promIsed her hIS Job In exchange for sexual favours - alleged somethIng that she knew could not be true Rowland had no authonty to "promIse her hIS Job" and she was well 73 aware of that. SIgmficantly she dId not refute that she had said thIS to Mr Goodale Also sIgmficantly none of her specIfic allegatIOns agaInst Rowland assert that he had promIsed her hIS Job In exchange for sex. The closest one was hIS alleged proposItIOn that If she wanted hIm to speak to management about a Job upgrade, she would have to "take care of the boss" AccordIngly her assertIOn to Mr Goodale that Rowland had promIsed her hIS Job In exchange for sex was somethIng new and dIfferent from what she has alleged occurred. So too was her heated accusatIOn to Mr Rowland on the mormng of August 25th It IS also reasonable to conclude that when the gnevor made her heated accusatIOns to Mr Rowland on the mormng of August 25th she dId so knowIng that others would be able to hear her WhIle theIr conversatIOn, Itself, was not planned by Ms Levesque but Instead escalated as It went on, what she shouted at hIm - that he promIsed her hIS Job If she would sleep wIth hIm - was lIkely planned. There IS no other explanatIOn for why she accused hIm of that when It was dIfferent from what she asserts actually happened. Her allegatIOns center on sexual assaults, proposItIOns and harassment. But wIth the exceptIOn of a Job upgrade, there was no assertIOn that Rowland tIed those actIOns to promIses of hIS Job Yet that, very clearly was what she accused hIm of on the mornIng of August 25th Mr Cook's eVIdence as well as that of Mr Rowland, was that Ms Levesque told Rowland that he had promIsed her hIS Job If she would sleep wIth hIm. The eVIdence also shows that the gnevor told WillIam Cann, sometIme In 1998 In the context of her unhappIness wIth her contInuIng uncertaIn Job status, that she had "a sure 74 fire way of gettIng a Job" ThIS comment was not refuted by the gnevor nor explaIned. The absence of any explanatIOn, combIned wIth the fact that It was cIted In her termInatIOn letter as proof of bad faith, leads me to conclude that (1) In fact, It was Said and (2) she was talkIng about claimIng sexual harassment. In 1991 she had filed a sexual harassment and a J ob classIficatIOn gnevance that was resolved through a J ob upgrade The tImIng of the gnevor's complaInt also pOInts to an Improper motIve She finally reported Mr Rowland's actIOns to management shortly after she learned that Mr Rowland was not retmng as she antIcIpated, but was WaitIng four more years The eVIdence was that she had "recently" learned that Rowland was not gOIng to retIre untIl 2002 when she reported that he had been sexually harassIng her The gnevor delayed reportIng any of these IncIdents untIl she learned about Mr Rowland's change In plans even though she was well aware of the Importance of tImely filIng. At all relevant tImes, she was aware of her nghts under the collectIve agreement and the Ontano Human Rights Code as well as the Workplace DISCnmInatIOn and Harassment PolIcy Yet she chose not to pursue them. As determIned above, I do not credIt the gnevor's explanatIOn that she reported them only after Mr Rowland tned to touch her breasts and she realIzed he dId not understand the word "no" Instead, I conclude that she reported sexual harassment shortly after she learned that Rowland was not gOIng to retIre 75 Further once she complaIned, the gnevor's focus was on ImproVIng herself wIthIn the Safety Net Umt. The relIef sought on her sexual harassment gnevance was not only a "harassment-free workplace" but also to "maIntaIn career advancement and opportumtIes as prevIOusly dIscussed." At the same tIme she filed the sexual harassment gnevance, she also filed a gnevance pertaInIng to her lack of a posItIOn specIficatIOn. The suggestIOn by Mr Goodale that she apply for the OAG-8 posItIOn was turned down by Ms Levesque because she thought It would elImInate any possIbIlIty of her advancIng wIthIn the Safety Net umt. For the same reason, she turned down the optIOn of returmng to her home posItIOn dunng the InVestIgatIOn. In addItIOn, dunng the InVestIgatIOn, the gnevor sought traInIng In Mr Rowland's Job functIOns The eVIdence demonstrates that the gnevor was very keen on advancIng Into Mr Rowland's posItIOn and sought to use the complaInt process to that end. In reachIng my conclusIOn, I do not rely on the proposal presented by the gnevor to Mr Goodale, whIch would have placed the gnevor Into an OAG-8 posItIOn. ThIS IS because It was clearly only a temporary measure to remove her from an allegedly pOIsoned work envIronment, not as a permanent assIgnment. WhIle It may have been surpnSIng to have Ms Levesque present a formal, typed agreement at the meetIng, ItS content demonstrates that It was a temporary measure only AccordIngly based on all of the eVIdence presented, I conclude that there IS clear and conVInCIng eVIdence that Ms Levesque pursued a claim of sexual harassment agaInst Mr 76 Rowland In order to obtaIn a more secure posItIOn WIthIn Safety Net or a Job upgrade I also conclude that thIS constItutes cause for dIscharge Sexual harassment of one employee by another IS wrong and has no place In the Ontano publIc servIce It IS also unlawful under the Ontano Human Rights Code and IS prohIbIted under the partIes' collectIve agreement. SectIOn 22 10 1 of the Agreement states that "[a]ll employees covered by thIS Agreement have a nght to freedom from harassment In the workplace because of sex by 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 ought reasonably to be known to be unwelcome" ACCUSIng someone of sexual assault and harassment IS also a very senous matter As stated by ArbItrator PIcher In Re Canadian National Railyt,ay Co and Canadian National Railyt,ay Transport & General Workers supra at p 194-5 [A ]ccusatIOns of sexual harassment are among the most devastatIng In theIr consequences for the employee accused, for the accusers and for employees and management alIke who can be drawn Into an Intense and dIvIsIve process of acnmony and sIde-takIng. A case of alleged sexual harassment IS fraught wIth dIfficulty for company and umon alIke Management, on the one hand, must take the greatest care to aVOId false accusatIOns that may wrong an employee of prevIOUS good servIce, cost that employee hIS or Job secunty and tarnIsh an IndIVIdual's reputatIOn not only wIthIn, but also outsIde the work place When, as In thIS case, the accused and accusers are co-members of a sIngle bargaInIng umt, the trade umon IS cast In the InvIdIOUS posItIOn of generally espOUSIng pnncIples whIch deplore sexual harassment whIle at the same tIme vIgorously defendIng an accused employee who proclaims Innocence and IS entItled to fair representatIOn by hIS umon Such dIsputes are fought wIth lIttle JOY 77 Because of the nature of the accusatIOn and the devastatIng consequences that It has not only on the IndIVIdual accused but on the workplace as well, false allegatIOns of sexual harassment cannot be tolerated. The complaInt process, desIgned to protect employees agaInst harassment and dISCnmInatIOn, cannot be mIsused to achIeve an ultenor purpose In thIS case, for the reasons set forth above, I conclude that there IS clear and conVInCIng eVIdence that Ms Levesque complaIned of sexual harassment by Mr Rowland In order to secure a more secure posItIOn WIthIn the Safety Net umt. It was the "sure fire way of gettIng a Job" that she had mentIOned to Mr Cann. There IS some danger as counsel for the Umon argues, that upholdIng the gnevor's dIscharge mIght have a chIllIng Impact on the filIng of sexual dISCnmInatIOn/harassment claims It could be vIewed as endorsIng the VIew that If one's allegatIOns of sexual harassment prove unfounded then one may be accused of falsely filIng a complaInt and dIscharged as a result. My conclusIOn, however that filIng a complaInt In bad faith IS cause for dIscharge should not be construed In that manner There IS a profound dIfference between concludIng that a claim, on a balance of probabIlItIes standard, IS unfounded and a conclusIOn that a claim was filed In bad faith. Bad faith reqUIres an Improper motIve It IS entIrely dIfferent than a findIng that the claim could not be sustaIned. The gnevor was not dIscharged for filIng a claim that could not be substantIated on a balance of probabIlItIes She was dIscharged for filIng a claim In bad faith. 78 The gnevor was also dIscharged because she engaged In "Inappropnate behavIOur In the workplace whIch contnbuted to a pOIsoned work envIronment." Although I conclude that the gnevor dId engage In Inappropnate behavIOur In the workplace whIch contnbuted to a pOIsoned work envIronment, I do not conclude that the Employer can properly rely on thIS as a basIs for the gnevor's termInatIOn. There are two reasons for thIS conclusIOn. FIrst, management had a responsibIlIty to manage the Safety Net umt whIch It dId not fulfill From the tIme Mr Carbert left, the Safety Net umt was largely left to Itself Although the actIng manager was avaIlable had the gnevor chosen to seek hIm out, as she dId on occaSIOn, there was no regular ongOIng management presence after Mr Carbert left. ThIS conclusIOn IS not to cntIcIze Mr Goodale who appears to have had two Jobs at the same very busy tIme, or DIrector WeIr The fact remaInS, however that management was not aware, as It should have been, of the pOIsoned work envIronment that eXIsted wIthIn the Safety Net umt. As counsel for the Umon argues, no proper boundanes were set and that led to the creatIOn and contInUatIOn of a pOIsoned work envIronment. Secondly there IS a sIgmficant dIsproportIOn In the penalty Imposed on the gnevor and that of Mr Rowland. Mr Rowland receIved a four-day suspenSIOn for engagIng In Inappropnate workplace conduct. Although I have concluded that management cannot rely on the gnevor's Inappropnate workplace conduct to support ItS termInatIOn of the gnevor I stIll conclude 79 that management had cause to dIscharge the gnevor solely on the basIs that she filed her complaInt In bad faith. ThIS mIsconduct, standIng alone constItutes cause for dIscharge c. Is there a basis to substitute a lesser penalty in all of the circumstances? Under SectIOn 48(17) of the Labour Relations Act where an arbItrator determInes that an employee has been dIscharged by an employer for cause and the collectIve agreement does not contaIn a specIfic penalty for the InfractIOn, the arbItrator may SubstItute "such other penalty for the dIscharge or dIscIplIne as to the arbItrator seems Just and reasonable In all the cIrcumstances" AccordIngly because I have concluded that the gnevor has been dIscharged for cause, I must stIll determIne If another penalty "seems Just and reasonable In all the cIrcumstances" For the reasons set forth below I conclude that a very lengthy suspenSIOn IS "Just and reasonable In all the cIrcumstances" A maJor reason to mItIgate the penalty here IS the fact that management played a role In creatIng some of the CIrcumstances whIch led to the gnevor's frustratIOns on the Job Her ten-week secondment was contInued Indefimtely wIthout any formal actIOn or tImetable Just as she dId not speak to management about returmng to her home posItIOn when It arnved In St. Cathennes, neIther dId management speak to her Her repeated efforts to obtaIn a posItIOn specIficatIOn were rebuffed because the managers she approached - Mr Beatty and Mr Goodale - were "actIng" managers and told her to Wait for a new manager to come In and assess the sItuatIOn. Further management, as found above, was often absent whIch allowed a pOIsoned work envIronment to develop and contInue wIthIn the Safety Net Umt. 80 The Umon also argues that the traInIng provIded In sexual harassment was Inadequate The eVIdence on the level and scope of traInIng IS a bIt unclear It appears that documents outlImng the polIcIes were provIded to employees, but not that there was a formal traInIng seSSIOn attended by staff In my VIew documents alone are not sufficIent. Another Important reason IS the gnevor's lengthy servIce WIth the Government. She was hIred on October 6 1980 and had, at the tIme of dIsmIssal In 1999 almost mneteen years of servIce Equally Important, her work record was dIscIplIne-free Those two factors weIgh heavIly In determInIng what IS "Just and reasonable In all of the cIrcumstances" The Employer argues, however that Ms Levesque has not backed down, she has stood her ground. She has not admItted that she made It up Her conduct was, and remaInS, In ItS submIssIOn, a delIberate attempt to deceIve effectIvely destroYIng the employment relatIOnshIp It submIts that she should not be restored to employment and, In the alternatIve, suggests payment In lIeu of reInstatement. Although I am very troubled by the gnevor's lack of remorse, at the heanng she clearly appeared to belIeve what she alleged. For all of the reasons set forth above, I concluded that as a matter of legal "fact" the IncIdents alleged dId not occur and that she filed her claim In bad faith. Based on credIbIlIty determInatIOns In lIght of the 81 surroundIng CIrcumstances and probabIlItIes, I determIned that the IncIdents she cIted dId not occur as alleged and that she filed her claim bad faith. But I also noted that some of It was conceIvable partIcularly gIven the type of InteractIOns In whIch she and Mr Rowland regularly engaged. Some of It could have happened, even though not In the unwelcome manner alleged, whIch may explaIn, In some part, her adamancy I also thInk that despIte her adamancy the gnevor wIll have learned an Important lesson by the ImposItIOn of another penalty It has been a long tIme sInce her dIscharge and a lengthy suspenSIOn should clearly make the pOInt that the complaInt process IS not to be Improperly used. RehabIlItatIOn of the gnevor In other words, IS possIble The senousness of her mIsconduct, however warrants a very lengthy suspenSIOn. In thIS case, It should be the tIme from her dIscharge untIl the end of the arbItratIOn heanng. Such a lengthy suspenSIOn should be sufficIent to bnng the message home that such mIsconduct cannot be tolerated and also serve as an effectIve deterrent to sImIlar cases Another Important factor In my determInatIOn that a lengthy suspenSIOn IS appropnate IS my conclusIOn that restoratIOn of the workIng relatIOnshIp IS possIble and that reInstatement of the gnevor wIll not be unduly dIsruptIve to the workplace I conclude that wIth the retIrement of Mr Rowland, and wIth a more actIve management presence, a workIng relatIOnshIp may be restored. There IS also a need for some addItIOnal educatIOn by the gnevor In the WDHP polIcy and appropnate office behavIOur 82 I do not belIeve, as counsel for the Employer contends, that payment In lIeu of reInstatement IS an appropnate remedy In thIS case That remedy IS an "exceptIOnal remedy" when an employer has not establIshed Just cause but contends that the employee should not be restored to employment. Here, I conclude that there was cause to dIscharge the gnevor but that a lesser penalty IS "Just and reasonable In all the CIrcumstances" In addItIOn, I do not find the relevant factors to warrant pay In lIeu of reInstatement to be present In thIS case Pay In lIeu of reInstatement IS appropnate only when reInstatement IS not a vIable alternatIve As set forth In Re Dehavilland Inc and Bombardier Aircraft Division and CAW Canada, Local 112 unreported decIsIOn of September 10 1999 (Rayner) quoted In Ontario Liquor Boards Employees Union (Massa) and Liquor Control Board of Ontario supra at p 70 the relevant factors are as follows 1 The refusal of coworkers to work wIth the gnevor 2 Lack of trust between the gnevor and the employer 3 The InabIlIty or refusal of the gnevor to accept responsIbIlIty for any wrongdoIng. 4 The demeanor and attItude of the gnevor at the heanng. 5 AmmosIty on the part of the gnevor towards management or coworkers 6 The nsk of a "pOIsoned" atmosphere In the workplace In my VIew most of these factors are not present In thIS case There IS no eVIdence that the gnevor's coworkers wIll not work wIth her On the contrary Ms Levesque appears to have been generally well lIked at work. She dId accept responsIbIlIty for her 83 actIOns (puttIng pantIes on her head, tellIng Rowland he was "well-hanged" etc) and admItted to many thIngs She demed that certaIn thIngs took place but that IS not the same thIng as refusIng to accept responsIbIlIty Her demeanor and attItude at the heanng dId not IndIcate that a workIng relatIOnshIp could not be restored. She dId not appear to harbor ammosIty toward management or her co-workers, wIth the exceptIOn of Mr Rowland who has retIred. With addItIOnal traInIng In workplace dISCnmInatIOn and appropnate office demeanor and a more actIve management presence, the return of the gnevor should not create a nsk of creatIng a "pOIsoned" atmosphere at work. The one factor that IS present IS a lack of trust between the gnevor and the employer But thIS IS not a sItuatIOn In whIch trust cannot be restored. Hopefully thIS decIsIOn wIll go a long way to help the gnevor understand why her allegatIOns agaInst Mr Rowland were not belIeved and why It was concluded that she mIsused the complaInt process The lengthy dIscIplInary suspensIOn on the gnevor's record should ensure that there wIll be no repetItIOn of such an occurrence RestoratIOn of trust on the part of both partIes wIll take tIme and effort but I do thInk It IS possIble AccordIngly for all the forgoIng reasons, I conclude as follows 1 There was clear and conVInCIng eVIdence that the gnevor's allegatIOns of sexual assault, sexual harassment and dISCnmInatIOn dId not occur as alleged. 2 There IS clear and conVInCIng eVIdence that the gnevor complaIned In bad faith In order to secure a Job/upgrade 3 The Mimstry had cause to dIscharge the gnevor on thIS basIs 84 4 Nevertheless, I conclude that a lesser penalty IS "Just and reasonable under all the cIrcumstances" SpecIfically I conclude that the penalty of a suspenSIOn wIthout pay from the date of the gnevor's dIscharge (February 19 1999) untIl the end of the arbItratIOn heanng (December 14 2000) should be substItuted. The gnevor should be made whole from December 15 2000 to the date of reInstatement as an OAG-7 The gnevor IS to be gIven addItIOnal traInIng In WDHP and appropnate office behavIOur Her semonty IS to be restored. 5 I shall remaIn seIzed. Dated In Toronto thIS 7th day of May 2001 . fI, cfboo[}c RandI Hammer Abramsky Vice-Chair