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HomeMy WebLinkAbout1992-0348.Hurge.95-04-24 I' ~.j\ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO . GRIEVANCE COMMISSION DE 1111 SETTLEMENT , REGLEMENT J BOARD DES GRIEFS I 180 DUNDAS STREET WEST SUITE 2100, TORONTO; ONTARIO, M5G lZ8 TELEPHONEITELEPHONE (476) 326-1388 I 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPIE (416) 326-1396 June 27, 1995 NOTICE RE: 348/92 OPSEU (Hurge) and the Crown in Right of ontario (Ministry of the Attorney General) Attached is a summary of the decision in the above noted matter prepared for general information ~urposes only It does not form ?JbIfl L. stickland Registrar LS/dbg Encl. , I ~ ~ ~ ,"-, 1 ! ~t Summary of Hurge, 348/92 (Kaplan) This case concerned three grievances filed by Archie Hurge on February 26, 1992 The first grievance alleged dismissal and disc'ipline withou~ just cause, the second a violation of Article A,and the third too~ issue with the conduct of an investigator appointed to investigate a sexual harassment complaint, the' content of her report, as well as the actions of management upon receiving that report. The case proceeded to, a hearing in Toronto, and then Ottawa, and it continued over the course of 22 days. The grievor was a long service employee of the Ministry of Correctional Services who, in April 1991, accepted a one-year secondment with the Office of the Police Complaints Commissioner An in-take officer was hired, also on secondment, and together with the grievor constituted the staff at the Ottawa office The intake officer worked with the grievor for two weeks, went away on a prescheduled vacation, and then notified the grievor of her intention to return to her home position. Subsequently, a sexual harassment complaint was filed and referred to an investigator ; The investigation commenced in the fall of 1991, and a report was issued early in 1 992 After receiving this report, the employer terminated the grievor's secondment, and he was also given a formal reprimand. The grievances were then filed The Board found that the evidence of the grievor was not credible. He I denied all of the relevant remarks attributed to him by the complainant and by several other witnesses Very simply, the Board found, after weighing all of the evidence, that the grievor engaged in a course of vexatious comment that was known, or ought reasonably to have been known, to be unwelcome. This conduct constituted differential treatment against the complainant, a subordinate employee, and it occurred because of her sex. While the grievor's remarks in this case could only be described as "low level" sexual harassment, a pattern of conduct had been established in a very short period of time, and that fact, along with the context in which the grievor's remarks were made - an abusive and harassing supervisory relationship - elevated the remarks and grievor's actions in significance and dictated that a finding of sexual harassment be made In these circumstances, the Board concluded that the discipline which was imposed was not unjust. While the Board recogmzed that education and counselling are often preferred managerial responses to inappropriate and sexually harassing comments of the kind present in this case, the grievor's refusal to accept responsibility for his behaviour precluded that particular approach I 2 ; The grievor also filed a grievance alleging that he had been discriminated against on the basis of race The allegations were, in general, twofold First, the grievor alleged that the complainant had terminated her secondment and then filed a complaint because "she did not want to work for a black man" The grievor is black and the complainant is white Second, the grievor took the position that the employer terminated his secondment because he was close to making some important findings in an investigation he was conducting into the shooting of a black man by a white police officer The Board also dismissed this grievance While some evidence was led in support of the grievor's claim that the complainant was motivated by racism, the Board found this evidence contrived and unbelievable There was no evidence whatsoever supporting the assertion that members of management had discriminated against the grievor on the basis of race There was evidence of managerial mistakes, but these mistakes, carefully and critically considered, did not come close to even remotely raising the specter of racial discrimination It was the grievor's misconduct, and his subsequent actions with respect to it, that led to the termination of his secondment and the imposition of a formal reprimand. Race- had nothing to do with it. As previously noted, the third grievance took issue with the conduct of the investigator appointed to investigate the sexual harassment complaint, and with the content of her report. The employer argued that this matter was inarbitrable, but for reasons given in the decision, the Board took jurisdiction with respect to it. This grievance was partially allowed The Board found that the employer assigned an inadequately trained investigator who then failed to conduct a fair and impartial investlgation Numerous examples of unfairness and carelessness by the investigator are set out in the award leading the Board to ultimately conclude that there was a breach of natural justice The Board ordered that the investigation report be removed from the grievor's file and destroyed In its reasons for decision with respect to this grievance, the Board sets out some of the minimal requirements for the conduct of fair investigations into allegations and complaints of sexual harassment. While it was alleged that the employer breached its duty of fairness to the grievor by the actions it took upon receipt of the investigator's report, the Board found that this was not the case The Board also made a procedural ruling during the course of the hearing with respect to the latitude to be given in the cross-examination of one of the grievor's lawyers who was called as a witness. The Board found that "'" I ,l, 3 , . the communications between the grievor and this lawyer were privileged However, for reasons set out in the decision, it also found that no ~ privilege attached to the communications between the grievor's lawyer and another individual called by the union as a witness in these proceedings ) ( ~ ) ~- - ''\ ONTARIO EMPLOYES DE LA COURONNE ,f CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION r'E .. SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPIE (416) 326-1396 ........_~_...T_.~___~~_"_._~~'__~~.,~.,.___ Cd GSB # 348/92 OPSEU # 92A511-92A513 ;-". l, -j f'; ~ r: i ~IN THE MATTER OF AN ARBITRATION I ,.~... Under ._-.~_..-,-.. ._~...----"'.....,...~........".'''' THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Hurge) Grievor - and - The Crown in Right of ontario (Min~stry of the Attorney General) Employer BEFORE: W Kaplan Vice-Chairperson J C Laniel Member F Collict Member FOR THE M Gottheil GRIEVOR Counsel Caroline, Engelmann & Gottheil Barristers & Solicitors FOR THE R Filion EMPLOYER Counsel Filion, Wakely & Thorup Barristers & Solicitors HEARING November 4, 1992 March 4, 5, 1993 June 28, 1993 July 25, 26, 1993 August 3, 4, 5, 6, 19, 1993 October 19, 1993 January 6, 7, 19, 29, 1994 February 2, 3, 1994 April 18, 1994 October 5, 1994 November 7, 8, 1994 2 .~ I 1 The Grieva,nces This case concerns three grievances filed by Mr Archie Hurge on February 26, 1992 The first grievance states I grieve that I have been disciplined without just cause by my removal from my assignment as Regional Senior Investigator of the Police Complaints Commission. The remedy requested is That I receive full redress for losses suffered as a result of this discipline. The second grievance alleges' Violation of Article A of the Collective Agreement in that I have been discriminated against by reason of race. The remedy r~quested is 1 That the Board issue a declaration to be posted in the workplace that I have been discriminated against on the basis of race and that the Employer be directed to cease and desist from their discriminatory practices. 2. That I be placed in the position of Senior Investigator (Eastern Region) effective March 6, 1992. 3 That I be compensated for all losses suffered as a result of this discriminatory action. The third grievance alleges Violation of Article 27 10.3.2 in that the Employer did not conduct their irlVestigation pursuant to Staff Relations Policy and that I was not provided with relevant documents relating to the investigation and further, I was not formally made aware of the substance of the complaint against me and further, this investigation was pecuniary in nature. The remedy requested is 1 Production of all relevant documents relied on by the investigator 2, Removal from my file any correspondence relating to the investigation. 3 Results of investigation to be declared null and void. "- 3 ,t 4 Any actions taken against me as a result of the investigation be rescinded. Introductory Matters These three grievances proceeded to a heanng in Toronto and then Ottawa, at which time considerable evidence was heard over the course of many hearing days and during a two-year period In brief, this case concerns an allegation by Archie Hurge (hereafter "the grievor") that he was unjustly dismissed from his position of Regional Senior Investigator of the Office of the Police Complaints Commissioner (hereafter "the OPCC") The grievor is a long-service employee of the Ministry of Correctional Services In April 1991, he received a one-year acting appointment, pursuant to a secondment agreement, as Regional Senior Investigator of the OPCC in Ottawa That agreement was terminated on February 5, 1992, by Mr Clare Lewis, the Police Complaints Commissioner The secondment agreement was terminated as a result of action taken following release of a sexual harassment investigation report. On February 24, 1992, Mr LewIs sent the grievor the following letter, in the wake of which the above-noted grievances were filed Further to our meeting of February 5th, 1992, this will continn that upon that date I exercised the right of this office to tenninate upon thirty days' written notice the Agreement regarding your acting appointment which commenced on April 15th, 1991 Accordingly, the Agreement will be tenninated and your acting appointment to the position of Regional Senior Investigator will end on March 6th, 1992. You have been provided with a copy of a report dated January 21st, 1992 prepared by Diane Desjardins. My decision is based upon the findings contained in that report and after carefully considering the detailed response which you gave on February 5th, 1 992 in the presence of your counsel Any fonn of sexual harassment, including that of a verbal nature which creates an uncomfortable working environment for the victim of the harassment, cannot and will not be tolerated. I trust that you will learn from this experience and take steps to ensure that circumstances of the nature described in Ms. Desjardins' report do not recur 4 " . Enclosed are copies of the Ontario Government Directives and Guidelines involving sexual harassment, and the policy of the Attorney General's Ministry governing harassment. I trust that you will read these documents and make every effort to conform with the directives contained therein as well as those of your home Ministry, Correctional Services. Finally, this letter should be considered as a formal reprimand, a copy of which will be placed in your personnel file. While the evidence will be thoroughly reviewed in this award, it can be noted here that a sexual harassment complaint was filed by Ms Gisele Delorme-Leclair, an individual with whom the grievor worked for two weeks. This complaint was initially assigned for investigation to a Ms H Malyon However, she was not able to complete her assignment for personal reasons, and she turned over the file to Ms Diane Desjardins, a Ministry of Natural Resources employee based in Sudbury As one of the grievances in this case alleges discrimination on the basis of race, it is appropriate to point out that the grievor is a black man. It should also be stated at the outset that periodic allegations were made throughout these proceedings that disciplinary and other actions were taken against the grievor because of his involvement in a high-profile investigation of alleged police misconduct in the Ottawa region Suffice it to say that the Board heard no eVidence whatsoever that would even remotely substantiate these allegatIons Accordingly, it is not necessary to deal in detail with these allegations in our reasons for decision Reference will, however, be made from time to time to these allegations and this investigation Finally, it should be noted that in a preliminary decision, released on December 19, 1992, the Board dealt with a number of procedural issues, including the order of the proceedings, the venue of the proceedings, and the disclosure of documents The employer was directed, for the reasons set 5 t out in that decision, to proceed first. This procedural direction did not, needless to say, alter the customary evidentiary burden on the parties to this proceeding The Employer's Case Evidence of Gisele Delorme-Leclair Ms Delorme-Leclair is a long-service employee of the Ministry of the Attorney General The office of the OPCC opened in Ottawa in June 1 991 Sometime in the spring of 1991, the job of intake officer was posted, and Ms Delorme-Leclair applied for the acting assignment. She was, at that time, working as the secretary to the Regional Director, Office Administration, and was classified as OAG 1 0 The intake officer position was ranked at OAG 11, one of the few such positions in the Ontario Public Service (hereafter "the OPS") Ms Delorme-Leclair was attracted to the opportunity because it represented a promotion, an increase in rank and salary, and a new challenge The job was also located closer to her home, and, as a single parent, this was an added bonus to her Ms Delorme-Leclair was interviewed for the position She knew at that time that if she was successful in obtaining the job, she would be reporting to the gnevor, as he was one of the members of the selection panel Ultimately, Ms Delorme-Leclair was the successful applicant, she requested, however, that she be allowed to take her previously scheduled vacation in July According to Ms Delorme-Leclair, in her discussions with the gnevor on this subject he was rude and not very encouraging However, he eventually advised her that she could both accept the job and take her vacation as planned -.-.- 6 '. . The official opening of the Ottawa OPCC was on June 4, 1991 Ms Delorme-Leclair was advised that she had obtained the job just prior to this date, but she did not begin work until June 17, 1991, in order to complete certain tasks at her old job. On June 13; 1991, Ms Delorme-Leclair dropped by the office to obtain a key A Ms. Francine Hutchinson, about whom more will be said later, was performing the intake officer job, and she showed Ms. Delorme-Leclair around. Ms Hutchinson had been hired through a personnel agency to fill the post pending the selection of a member of the OPS. At that time, Ms Delorme-Leclair noticed that there was some new office equipment with which she was not familiar She asked Ms Hutchinson about the manuals, and was advised by her that she did not know where they were Around this time, the grievor came in and said that Ms Hutchinson had recieved some training when the equipment arrived, but that any additional training would cost the office money The grievor then expressed the view to Ms. Delorme-Leclair that she had proofreading problems, (having apparently reviewed one of her performance appraisals) and that "for the amount of money we are paying you, you should know how this equipment operates without traming " Ms Delorme-Leclair testified that she was shocked by the tone and content of the grievor's remarks Clearly, this new working relationship had not got off to a good start. And, as it happened, Ms Delorme-Leclair ended up working for only two weeks As scheduled, Ms. Delorme-Leclair started work on Monday, June 17, 1991 Her first day on the job did not go well. When she arrived for work, the grievor asked her to make some changes to a report he had written earlier Ms. Delorme-Leclair input the changes on the document, but when she went to print it she could not do so At the grievor's suggestion, she contacted the manufacturer of the printer in the Umted States in an effort to find out 7 '.f what was wrong After being put on hold, she contacted someone at her old office in a further effort to discover how to print the document. Ms Delorme-Leclair testified that this was upsetting to the grievor, who began speaking loudly to her The grievor then called the printer manufacturer In the United States, and was told that the printing code error displayed on the screen meant that the printer had to be rebuilt. Ms Delorme-Leclair testified that she offered to type the last page of the document, which was the page requiring corrections, and the grievor accepted that offer He then left the office to attend a meeting in Toronto Later that day, the grievor called in and asked Ms Delorme-Leclair to perform a certain task and to fax him the results The next day, Tuesday, June 18, 1991, the grievor was out of town. Ms. Delorme-Leclair reorganized the office and performed various tasks On Wednesday, June 19, 1 991, the grievor returned to work at the office and said that if Ms Delorme-Leclair had "goofed up" on her first day, she had made up for it by finding and successfully faxing him the document. This was upsetting to Ms Delorme-Leclair, who could not see how she had "goofed up." At some point later that week, the grievor invited Ms Delorme-Leclair into his office, and the two of them discussed the fact that their working working relationship was not what it should be The discussion went well, and on Friday, June 21, 1991, Ms Delorme-Leclair told the grievor that she had enjoyed working with him The following week, however, certain events caused her to change her mind. First, Ms Delorme-Leclair learned that the manuals for the various pieces of office equipment were kept in the grievor's office and, for some reason, he insisted that they remain there One day, Ms Delorme-Leclair needed to consult the Word Perfect_manual, and she took it from his office There 8 " . was only one computer, and it was in her office The grievor noticed that the manual was missing and asked for it back Ms Delorme-Leclair suggested that she should keep it, since she was the one with the computer The grievor thought otherwise and said it should be kept in his office for security reasons As a result of a number of other incidents, which she outlineq, Ms Delorme-Leclair also formed the view that the grievor had unrealistic expectations about how much work she could perform in a day While the grievor was in and out of the office during the week beginning on June 24, 1991, there was opportunity for a number of exchanges, and it is these exchanges that came to form the foundation of the sexual harassment complaint. At one point the grievor made a comment about the way Ms Delorme-Leclair dressed, and on another occasion suggested that her hair looked "provocative" He also asked whether she had any "hot dates." The grievor learned that Ms Delorme-Leclair was a single mother, and made the observation that she was just waiting for her estranged husband's common-law wife to depart so she could have him back. He also asked Ms Delorme-Leclair for a physical description of the common-law wife One time, a co-worker from her previous job called her, and the grievor left a message for her that her "boyfriend called" When Ms Delorme-Leclair explained that the individual was not her boyfriend, the grievor persisted in stating that he was, observing that he could tell by the tone of his voice Ms. Delorme-Leclair did not appreciate any of these comments; she did not feel that the grievor was joking, but that he was judging her One day towards the end of that week someone came in over the lunch hour to file a complaint. Ms Delorme-Leclair had previously arranged to meet her sister for lunch, but cancelled that arrangement in order to meet WIth the grievor and the complainant. Ms. Delorme-Leclair formed the view, as a 9 ,t' result of some of the complainant's comments, that the lunch time meeting was unnecessary In any event, after the complainant left, the grievor suggested that the two of them go out for lunch, and made the comment that lunch with him was better than with her sister When Ms Delorme-Leclair failed to respond, the grievor said "isn't it?" He then said it again Around 3 00 p.m. on Friday, June 28, 1991, Ms Delorme-Leclair went into the grievor's office and explained that, since she was leavmg on vacation, she did not wish to work late that day The grievor then began questioning her about her vacation plans Ms Delorme-Leclair did not wish to discuss her vacation plans or personal life with the grievor, and found his questions and remarks upsetting J Ms. Delorme-Leclair went away on her vacation as scheduled, but returned home after about ten days She was having trouble sleeping, had pains in her chest, and her stomach was bothering her She realized that these conditions were being caused by the thought of returning to work with the grievor, and during the last week of her time off she decided to end her secondment. On July 18, 1991, Ms Delorme-Leclair called Ms. Hutchinson, who had~ been brought back to replace her while she was away, and advised her that she had decided to go back to her old Job Ms. Delorme-LeclaIr, who was scheduled to return to work on July 22, 1991, knew that this would be of interest to Ms Hutchinson, as Ms. Hutchinson had expressed interest in the intake officer position Ms Hutchinson asked why she was giving up the job, and Ms. Delorme-Leclair told her about some of the things that had happened during her first two weeks in that position Ms Hutchinson advised Ms Delorme-Leclair that the grievor had made some comment about her husband Ms. Hutchinson also expressed the view that she liked the grievor and enjoyed working with him ----~-_. ~ 10 'f At a later date, after Ms Delorme-Leclair filed a sexual harassment complaint against the grievor, Ms. Hutchinson submitted a statement indicating that Ms Delorme-Leclair had said to her that she did not like working with a black man Ms Delorme-Leclair was asked about this allegation, and she denied it. According to Ms Delorme-Leclair, she has never said anything of this kind, and does not harbour views of this nature While still on vacation, and having decided, as she was entitled to do, to end her secondment, Ms Delorme-Leclair contacted her former boss, Mr Bob Beaudoin, and told him that she wanted to return to her old job because of problems she was experiencing with the grievor After she described these problems, Mr Beaudoin suggested that M~ Delorme-Leclair contact a harassment adviser, which she did She also received a telephone call from the grievor later on July 18, 1991, after she had spoken to Ms. Hutchinson This call came as something of a surprise, as she had asked Ms Hutchinson not to say anything to him until she had had an opportunity to speak to him. As it turns out, the grievor taped that telephone conversation Ms Delorme-Leclair did not know the conversation was being taped at the time, though in the. course of the conversation she began to suspect as much A transcript of the conversation and the tape itself were introduced into evidence It is clear from this tape that the grievor was extremely concerned about the prospect that Ms. Delorme-Leclair might be thinking of filing a sexual harassment complaint against him, and he went out of his way, several times, and In a rather aggressIve fashion, to elicit information about her intentions and activities in this respect and to dissuade her from pursuing such a course of action The grievor was particularly interested in knowing who, if anyone, at the Ministry of the Attorney General and at the OPCC was aware of her concerns. He then made several suggestions about - 11 " how they should proceed to notify the OPCC in Toronto that she desired to terminate her secondment. Ms Delorme-Leclair did not intend, at this time, to file a complaint, and she said as much to the grievor The grievor suggested several times that the reason why Ms Delorme-Leclair wished to terminate the secondment was that she missed her friends at her old job Ms Delorme-Leclair did not agree with this view The grievor then suggested some draft language for her termination letter, and arranged to have a letter delivered to her the following day "This will solve the problem," the grievor stated in the conversation, "for you and for me " In the aftermath of this conversation, Ms. Delorme-Leclair met with the harassment adviser, and the two of them reviewed options, including filing a human rights complaint, filing an internal complaint, or calling the police It was suggested to Ms. Delorme-Leclair that the grievor had created a "poisoned environment," and Ms Delorme-Leclair alleged as much in her complaint dated August 9, 1991 The complaint alleges a violation of the OPS Sexual Harassment Policy, and refers to "unwelcome comments" about ,-- her family, personal appearance, personal life, and job performance as grounds for her belief that she was working in a "poisoned atmosphere" While Ms Delorme-Leclair had not initially intended to file a complaint, she came to the conclusion after thinking about it, and realizing that she had lost a promotion, a significant salary increase, and a career opportunity as a result of the grievor, that she should file a complaint. In the meantime, on July 22, 1991, Ms Delorme-Leclair had returned to the office of the OPCC. Originally, it was her intention to stay long enough only to obtain the grievor's signature on the form ending the secondment, but when she realized that there was a significant backlog of work, she agreed to stay for two days to assist with- it.- She did, however, sign a previously prepared 12 " letter requesting reassignment to her old job "where I will be more comfortable with my work" Ms Delorme-Leclair's last two days on the job were relatively uneventful, with one exception She told the Board that Ms. Hutchinson, who, like Ms. Delorme-Leclair, is francophone, advised her that the grievor did not want the two of them to speak French when he was in the office According to Ms. Delorme-Leclair, Ms Hutchinson did not make any reference to any earlier conversation in which Ms. Delorme-Leclair purportedly said that she did not wish to work for a black man Cross-Examination of Ms. Delorme-Leclair Ms Delorme-Leclair was asked a number of questions in cross-examination, beginning with her work history She told the Board about her different jobs, her ability to work in both English and French, and her familiarity with different pieces of office equipment. She has years of experience with personal computers Ms. Delorme-Leclair was not aware, prior to starting work as an intake officer, that the grievor felt that her English-language skills were lacking, and she agreed that she had earlier expressed the desire, on her PPR, to improve her written English Ms Delorme-Leclair testified that English was her second language, and it was only natural that some improvement would be required Ms Delorme-Leclair insisted that the grievor was rude after he offered her the job and she requested that she be allowed to take her previously scheduled vacation, adding that the grievor tried to convince her to reduce her vacation from three to two weeks Ms. Delorme-Leclair did not know at that time that the grievor had been working for several months without secretarial support. All she knew was that the OPCC office was scheduled 13 . '. to open on June 4, 1991 Ms. Delorme-Leclair, of course, arrived for work on June 17th While Ms. Delorme-Leclair quickly became aware on June 17, 1991, that the document she was revising was important to the grievor, she had no way of knowing that it was to form the basis of the first presentations the grievor was making to the OPCC in Toronto The document had originally been typed by Ms Hutchinson, and Ms. Delorme-Leclair called it up on screen to make some changes to the last page After making the changes, Ms Delorme-Leclair tried to print it but was unsuccessful, and she offered to type it for him. She denied the assertion that she did not know how to turn on the typewriter Ms. Delorme-Leclair and the grievor were in the office together that first day for approximately 2 1/4 hours - When the grievor called Ms. Delorme-Leclair later that day from Toronto and she arranged to find and fax him a document he required, she did not mention to him that his loud talking had upset her She understood that he was anxious to leave for Toronto, and she was anxious to do a good job for him However, when he returned to work two days later and told her that she had "goofed up" but had made up for it, she became upset, for she considered this comment unfair and unacceptable Ms Delorme-Leclair did not agree that part of what the grievor said to her on his return was complimentary because the "goofed up" remarks tainted everything he said by putting her down without a valid reason, thereby undermining her confidence Ms Delorme-Leclair agreed that she has gone for assertiveness training, but did not accept the suggestion that a lack of confidence was the reason for her doing so She took the course to learn how to get a point across and 14 ., to assist her in her career goal of becoming a manager Ms. Delorme-Leclair testified that she was shy, but that this shyness did not affect the performance of her job. On September 27, 1991, Ms Delorme-Leclair was interviewed by Ms Diane Desjardins, the investigator assigned to her complaint. In Ms Desjardin's notes of that interview, she records Ms Delorme-Leclair as having advised ) her that following her discussion with the grievor some time towards the end of her first week on the job, everything went well until Wednesday, June 26, 1991 In cross-examination, Ms. Delorme-Leclair could not recall if Wednesday was accurate, as the grievor was in and out of the office that entire week, although following some questioning she agreed that her recollection in September 1 991 was likely more accur~te than in March 1993, when _she first testified in these proceedings In Ms Delorme-Leclair's examination-in-chief, she had testified that the grievor asked about "hot dates" on one occasion However, in her response to the grievor's Human Rights Code complaint, which was introduced into evidence, Ms. Delorme-Leclair stated that the grievor had asked her about "hot dates" a few times Union counsel now asked which was it - once, or several times Ms Delorme-Leclair testified that she thought it was only one time, but that when she filled out her response to the grievor's Human Rights Code complaint she was in a better position to recall exactly how many times the grievor had made this remark. She could clearly recall him doing so at least once. It was suggested to Ms Delorme-Leclair that if everything went well in the office until Wednesday, June 26, 1991, it was unlikely that the gnevor made this comment before this time, so he would have _had to have made It 1S t on the Thursday or Friday Ms. Delorme-Leclair replied that she could only say that he made it; she could not say exactly when he did so When the grievor asked Ms Delorme-Leclair whether she was married, the two of them were discussing families, and Ms Delorme-Leclair testified that they were having a friendly conversation She was sure that the conversation took place during her second week on the job, and that the grievor asked her to describe her estranged husband's common-law spouse Ms Delorme-Leclair was not exactly sure when this conversation occurred, nor could she recall with certainty when the grievor commented that she looked "provocative" All she could recall about that comment was that the grievor made it first thing one morning when she arrived for work. Ms Delorme-Leclair was sure about the day that the grievor informed her that her "boyfriend" called - this happened the day before she went on vacation - and she testified that the grievor insisted, despite her assertions to the contrary that the caller was her "boyfriend" It was quite normal, Ms. Delorme-Leclair agreed, for her to be present when a complainant came in After all, that was part of her intake officer position On Thursday, June 27, 1991, a complainant did come In during the lunch hour After the interview was completed, Ms. Delorme-Leclair offered to type the report immediately so that the complainant would not have to return the following day to sign it. The complainant advised her, however, that she could easily return, as she had nothing else to do This led Ms Delorme-Leclair, upon reflection during her vacation, to believe that the grievor had purposely arranged to have her come in over the lunch hour Ms Delorme-Leclair was not exactly sure why the grievor had done this, it may have been because he wanted to be alone with her during lunch. Whatever the reason, she found it suspicious, and these suspicions were 16 -, confirmed when the grievor suggested over the lunch that followed that lunch with him was better than lunch with her sister Ms Delorme-Leclair agreed that there was nothing wrong with the grievor inviting her to lunch She also agreed that there was nothing necessarily wrong with the grievor asking her about her holiday What she did not like was the grievor asking her two or three times on her last day at work before her vacation who she was going out with that night. She also did not appreciate the grievor's suggestion that she come in during her vacation for training, nor did she like some comments the grievor made about her proofreading Having decided to go back to her old job, Ms. Delorme-Leclair telephoned Ms Hutchinson to advise her of her decision to end her second me nt, and one of the reasons she did so was to ensure suitable back-up when she left. At that time she told Ms Hutchinson that she and the grievor had different methods and approaches She insisted that she said nothing about working with or for a black man Ms. Delorme-Leclair also refuted the assertion that she said the job was too much for one person Ms. Delorme-Leclair could not recall if she said that she preferred her old job, but she did feel that she had not been provided with the necessary tools to do her new job Ms Delorme-Leclair denied telling Ms. Hutchinson that she was more comfortable with her French-speaking boss, and also rejected the suggestion that she called Ms Hutchinson many times during her two weeks on the job to find out how to do the work. She did call Ms. Hutchinson from time to time, usually when asked to do so by the grievor Ms. Delorme-Leclair also called Mr Beaudoin and solicited his advice, but not until the last week of her vacation, when she had determined that she -.---. - 17 ,t wished to return to her old job. In her conversation with Mr Beaudoin, Ms. Delorme-Leclair may have said that part of the problem with the job was that the grievor did not know how to manage She may also have observed that there was a cultural difference between them, and by that she meant that his background and experiences were different rom hers, and that he had a different way of working She definitely told Mr Beaudoin that she was afraid of the grievor Mr Beaudoin did not encourage her to file a complaint; all he did was refer her to a harassment officer Ms Delorme-Leclair formed the view that Mr Beaudoin was angry about the incident: as a member of the OPS with many years of experience she had lost a promotion because of thegrievor She agreed that after drafting her complaint it was possible that she showed it to Mr Beaudoin, but if she did, she showed it to him in the same way that she had earlier spoken to him, as a friend Although Ms Delorme-Leclair had worked for the grievor for only two weeks, she felt that the entire experience was unsatisfactory It was true that some problems were cleared up at the end of the first week, but the incidents that took place in the second week affected her She did not accept the assertion that all the upsetting events in week two took place on her last two or three days on the job, as was suggested in Ms. Desjardins' notes. In her mind, the events all took place over the course of the two weeks. And when she was on vacation, the thought of going back to the job made her feel sick That is why she decided to end the secondment. It' was only later, on realizing what she had lost and after consulting a harassment adviser, that she decided to file a complaint. Why should she, she asked, accept a demotion? Ms Delorme-Leclair denied the assertion that the only reason she filed a complaint was because she was afraid that the grievor could negatively affect her career by reportmg that she could not do her 18 .~ job She was, however, aware that the grievor might criticize her performance, but she knew that he could do so whether she filed a complaint or not. It was partly because of this concern that Ms Delorme-Leclair filed her complaint. This was not, however, her main reason for doing so On her last day at work, Ms. Delorme-Leclair, Ms. Hutchinson, and the grievor went out to lunch Re-examination of Ms. Delorme-Leclair In re-examination, Ms Delorme-Leclair testified that there were a number of reasons why she filed her complaint: she realized that her return to her old job meant a demotion, loss of salary, and loss of opportunity She felt that she did not have to work in fear, and believed that the grievor's conduct was unacceptable On her last day at work, following her return from vacation, Ms Delorme-LeGlair accepted the grievor's lunch invitation because she felt she could not refuse Besides, Ms. Hutchinson was also coming along. The occasion was not, in her view, a comfortable one Evidence of Robert Beaudoin Mr Beaudoin, the Regional Director of Courts Administration for the Eastern Region and Ms. Delorme-Leclair's supervisor both before and after her time with the OPCC, testified He told the Board that Ms Delorme-Leclair, who worked for him for two years before joining the OPCC, was a superior employee, one who required little or no supervision and one who was also directly involved in the initial establishment of his office Ms Delorme-Leclair took assertiveness training to prepare herself for a leadership role in a management position In Mr Beaudoin's view, Ms Delorme-Leclair's English-language skills are "every bit as good as the unilingual anglophone secretaries in his office" Upon learning of the intake officer opportunity, he encouraged Ms Delorme-Leclair ~to apply for it. 19 "~ Mr Beaudoin did not hear from Ms Delorme-Leclair after she left his office and began work at the OPCC. He did, however, receive a call from her one night at home in July 1991 He testified that she was clearly upset. Ms. Delorme-Leclair reported to him how she was feeling physically, and also fi4:+ described various events that had taken place in the office Suffice it to say that Mr Beaudoin's evidence mirrors in most material respects the account earlier provided by Ms. Delorme-Leclair The secondment arrangement could be terminated by either the employer or the employee on thirty days' notice Ms Delorme-Leclair asked if her job was still available, and Mr Beaudoin assured her that it was He offered to look into arranging an earlier termination date He also suggested to Ms ) Delorme-Leclair that she might be a victim of sexual harassment, and suggested that she speak with a harassment adviser According to Mr Beaudoin, Ms Delorme-Leclair was extremely concerned about her personnel file, and was worried that there might be reprisals for terminating the secondment arrangement. Some time the following week, Mr Beaudoin was advised that the arrangements terminating the secondment had been completed Ms Delorme-Leclair expressed the vIew to him that the grievor had taped one of their conversations - she reported some suspicions to that effect - and she also told Mr Beaudoin about an arrangement in which the grievor agreed not to put a bad reference in her personnel file if she agreed not to file a complaint. Mr Beaudoin testified that he was angry that Ms. Delorme-Leclair had made this kind of deal Ms Delorme-Leclair returned to her old job on Wednesday, July 24, 1991 Some time after Ms Delorme-Leclair returned to her old job, a Ms Karen Cohl, the Acting Assistant Deputy Minister of Courts Administration, was in 20 " Ottawa for a meeting, following which she joined Mr Beaudoin for dinner He expressed frustration about the government's sexual harassment policy and the fact that it precluded official action prior to the filing of a complaint. Ms. Cohl indicated that she would report the matter to Mr Mark Conacher, the Executive Director of the OPCC, which she did upon her return to Toronto Mr Beaudoin again raised the matter with Ms. Delorme-Leclair, who advised him that she had not completely closed her mind to the possibility of filing a complaint. And sometime thereafter, Mr Beaudoin was not sure exactly when, a complaint was filed Cross-Examination of Mr. Beaudoin In cross-examination, Mr Beaudoin agreed that he might have told Ms Desjardins that Ms Delorme-Leclair was somewhat timid What he meant by this was that she needed to improve her assertiveness Skills, and doing so was part of her long-term plan to join management ranks. He again insisted that Ms Delorme-Leclair was an excellent employee He did not describe her as a friend, and noted that they did not have a social relationship. He did descnbe her as a competent and valuable employee From what Ms Delorme-Leclair told him, for example, about the printer incident, he concluded that the grievor was not an effective manager Mr Beaudoin believed what he was told because he knew Ms Delorme-Leclair and knew that she was an honest and thoughtful employee. Towards the end of their conversation in mid-July 1991, Mr Beaudoin expressed the view to Ms. Delorme-Leclair that she might be the victim of sexual harassment. Ms Delorme-Leclair then observed that the investigator position was a good job for the grievor, and that he was not from North America Cultural differences, she suggested, might explain his interactions with women Was Ms Delorme-Leclair saying that the - -- 21 . different events occurred because the grievor was black and did not come from Canada? No, he replied, she was just trying to come up with some excuse for his behaviour Mr Beaudoin did not accept "culture" as an excuse He then urged Ms Delorme-Leclair to speak to a harassment adviser Mr Beaudoin agreed that Ms Delorme-Leclair was preoccupied with the notion that the grievor could ruin her career She was also concerned that the grievor, who she now believed had taped one call, might retaliate against her in other ways As a former probation officer, he knew "all sorts of people who might do her harm." At the same time, Ms. Delorme-Leclair said that she did not want to do anything to hurt the grlevor Mr Beaudoin formed the view that she was somewhat confused / In the aftermath of this discussion, Ms Delorme-Leclair's returned to her old job, and his dinner with Ms. Cohl, Mr Beaudoin received a telephone call from Mr Peter Clendinneng, Director of Human Resources for the Ministry of the Attorney General in Toronto To make a long and quite confusing story short, Mr Clendinneng apparently expressed the view that Ms Delorme-Leclair should file a complaint, but he was also concerned that she not be Induced to file a complaint on the basis of some erroneous information that two female OPCC employees in the Toronto office had done so Evidence of David Connolly Mr Connolly testified A co-worker of Ms Delorme-Leclair, he called her once during her first week or two on the job. In his view, the person who answered the phone was harsh, unhelpful, and abrupt. When Ms Delorme-Leclair called back later that day, she advised him that it was the grievor who answered the phone Later on, possibly that evening, the two of 22 -f them talked again, and Ms. Delorme-Leclair advised him that the grievor had referred to him as her boyfriend She also recounted a number of incidents that had taken place, and Mr Connolly suggested that she take notes. He regarded the matter as serious and formed the view that Ms Delorme-Leclair was scared and nervous Cross-Examination In cross-examination, Mr Connolly agreed, assuming for the sake of argument that the grievor was harsh and abrupt, that there might have been a reason for it. Mr Connolly pointed out, however, that if he was busy, or was on another line, he would still try to be polite to callers Mr Connolly did not ask the grievor a series of questjons concerning Ms Delorme-Leclair's whereabouts. Mr Connolly may have suggested to Ms Delorme-Leclair that the grievor's conduct was "harassment", he does not think he used the words "sexual harassment." Whatever words he used, he thought the situation was serious Mr Connolly and Ms. Delorme-Leclair got along well together; they were not, however, social friends Mr Connolly encouraged her to file a complaint. Evidence of Bonnie Rittersporn Ms Rittersporn, an investigator employed by the OPCC in Toronto, testified In March 1 991, she had an encounter with the grievor ~t the Central Region Office located in a converted house This was their second or third meeting Ms. Rittersporn was in the kitchen when the grievor entered and she invited him to help himself to coffee There were no extra mugs, so she told him to use a staff member's mug and to wash it when he was through She later noticed that the grievor had not washed the mug, and mentioned this to him. The grievor then stated that he had intended to wash the mug, but was "sidetracked by her amazing beauty" Ms. Rittersporn crossed her arms and - 23 " glared at the grievor, who then changed the topic by asking if he could discuss a file with her The grievor advised her that he had a file that involved fellatio Ms Rittersporn thought this was odd, but explained the process to him. The grievor interrupted and said that he knew all of that, and that the case involved two young boys, or brothers, who were "sucking on each other" Ms. Rittersporn was caught off guard, but asked the grievor what he was asking She then said that the grievor should ensure that the boys were interviewed, and that the parents should be present. When the grievor said something else about oral sex, Ms Rittersporn concluded that he was not interested in discussing the procedure, and she returned to her office Later that day, around 3 00 pm., the grievor advised her that he had been putting in a lot of overtime and that he was leaving for the day Ms Rittersporn told him that he received compensation for his overtime in the form of Management Category days The grievor then said that he was going to return to his empty hotel room and take a nice ~ath He then stretched his arms out backwards and appeared to be awaiting a response Ms. Rittersporn glared and walked away She reported these events to her supervisor, Mr Peter Guest, the opec's Director of Investigations, and advised him that she had dealt with them informally and would not be making a formal complaint. She did, however, ask Mr Guest to deal with it from the employer's point of view Ms. Rittersporn does not know what, if anything, was subsequently done In August or September 1991, Ms Rittersporn received a call from Ms Malyon. The two met and she again recounted these events Sometime thereafter, Ms Rittersporn received a telephone call from Ms Desjardins, and they had a twenty to thirty.-minute discussion about these events 24 'f Cross-Exammation of Ms. Rittersporn It was pointed out to Ms Rittersporn in cross-examination that it was somewhat unlikely that the incidents she described occurred in March 1991, as the grievor did not begin employment until April She agreed that she might be wrong about the date, but was insistent that she was right about the incidents After these incidents, the grievor ignored her, although they would encounter each other from time to time Ms Rittersporn did not agree that she was insulting in suggesting that the grievor wash his own mug Ms Rittersporn also did not agree that she had a discussion with the grievor one day in which she said she was having trouble finding a boyfriend, and that her boyfriend found dining out expensive She enjoys --- dining out, and she may have discussed restaurants on some occasion with the grievor There was no discussion about boyfriends Nor did the grievor say in such a discussion, since there wasn't one, that she "should not worry about finding a boyfriend because she was a very attractive woman" The events happened, Ms Rittersporn insisted, exactly as she had described them. From Ms. Rittersporn's perspective, the grievor's comment that he was "sidetracked by her amazing beauty" was not a sarcastic comment made in the aftermath of her saying he should wash his mug With respect to the discussion about oral sex, Ms. Rittersporn could not recall the details Apparently it involved a complaint against a police officer in which it was alleged that the police officer counselled the young boys to engage in this behaviour Ms. Rittersporn does not find it uncomfortable or difficult to talk about ca~es involving sexual acts; she just did not like the way the grievor was going about it. She did not form the impression that the grievor was really interested in discussing the case When she again encountered the grievor leaving the office, she did not ask him about his evening plans, he volunteered that information She 25 ,,' interpreted his comments about returning to his hotel room as some kind of proposition The next day, Ms Rittersporn reported these events to Mr Guest and asked him to speak to the grievor Her objective was for the comments to cease, and they did, so there was no need to file a complaint. Later on, Ms. Rittersporn heard some rumours about the grievor; that "they" were looking for someone to come forward and formally complain because there were other incidents. While Ms. Rittersporn never told the grievor that she found his comments offensive, she believes that by crossing her arms and glaring at him, that she communicated this message Evidence of, Elisa Boreham Ms. Boreham, a resear~h secretary in the OPCC in Toronto, testified In the spring of 1991, the OPCC held a two-day media training session One night a number of people went out for drinks, including Ms. Boreham and the grievor, who sat next to each other The gnevor began asking Ms Boreham personal questions, such as whether she was married, if she was seeing anyone, and so on He then said that he was in the city by himself and would be returning to his hotel room and an empty bed Ms. Bareham ignored these remarks The grievor left soon thereafter, "brushing himself" on Ms Boreham as he made his way by Ms. Boreham relayed the incident to one of the investigators present in the bar and told a number of other people about it. Around June or July 1991, Mr Conacher approached her and advised her that a complaint had been made and that an investigation would take place He asked if she would meet with the investigator, and Ms. Boreham agreed to do so She later spoke to Ms. Desjardins on the telephone 26 ,t Cross-Examination of Ms. Boreham Ms. Boreham was asked a number of questions in cross-examination She agreed that everyone was sitting in a kind of alcove at a long table towards the back of the bar Ms. Boreham is British, and the grievor advised her that he had once lived in England and they discussed that. She did not get the impression, when he told her he was returning to his empty hotel room, that he was being sarcastic. She felt it was a comment directed towards her, although the grievor did not come right out and invite her to join him She noted that questions about marital status do not usually arise the first time she meets someone Ms Boreham agreed that when the grievor got up to leave, he had to squeeze by her because of the way they were sitting and the location of their seats. She testified, however, that it was a "brushing by," not a walking by accompanied by an "excuse me," that led her to conclude that the act was intentional. - Ms Boreham told a number of work friends about the incident, although she never spoke to the grievor about it. She did not feel comfortable in approaching him, and did not feel it was sufficiently serious to warrant further action The grievor was not her supervisor, and she did not feel threatened by him Ms Boreham never discussed the incident with Ms Rittersporn The two have met, but have no on-going relationship Evidence of Diane Desiardins Ms Desjardins, the Operations Coordinator for the Ministry of Northern Development and Mines in Sudbury, testified On September 1 0, 1 991, she was appointed to investigate Ms Delorme-Leclair's sexual harassment complaint. She learned later that the investigator initially appointed to the case had to withdraw because of an illness in her family Ms Desjardins identified a copy of the November 27, 1989, OPS Sexual Harassment Policy 27 '. and stated that she was familiar with it and with the January 1991 Human Res~)Urces Directives and Guidelines which were also introduced into evidence Furthermore, Ms Desjardins identified the Sexual Harassment Training Manual, and testified that she had earlier participated in a pilot training session and was involved in the preparation of some informational pamphlets According to Ms Desjardins, in conducting her investigation, she followed the procedures outlined in the Training Manual Ms. Desjardins began her investigation by notifying the grievor and Ms. Delorme-Leclair of her appointment and arranging to meet With them individually on September 27, 1991, in Ottawa Some questions were prepared in advance The interview with Ms Delorme-Leclair lasted from 9 1 5 a m. to 11 00 a m. Ms. Desjardins took notes of this meeting, and like many of the other documents relating to this investigation, they were introduced into evidence That afternoon, Ms Desjardins met with the grievor, who was accompanied by counsel, Mr Murray Ages, Q C At this interview, the grievor raised some concerns about Ms Delorme-Leclair; he stated that she had come in second in the competition and that she was hired notwithstanding the grievor's concerns about her English-language skills The grievor also told her that he asked Ms Delorme-Leclair, her first day on the job, whether she had any problems working for a black man, and he received a nonchalant lukewarm response In addition, as part of his orientation remarks made on Ms Delorme-Leclair's first day at work, he told her that he was "an unusual boss," that he had "no hidden agenda, workwise or sexually," that his "success and failure" depended on her, and that "if she did not understand, ask what the hell is going on " The grievor relayed to Ms Desjardins his many concerns about Ms Delorme-Leclair's inability to operate office 28 ,~ equipment and her failure to generate a high-quality product. The grievor described the printer incident, and informed her about his comments when he returned to the office following his trip to Toronto Obviously, Ms. Desjardins was required to ask the grievor about Ms Delorme-Leclair's specific allegations of sexual harassment, and she testified that she did so, giving the grievor every opportunity to provide as much information as he wished The grievor was asked whether he made inquiries about Ms Delorme-Leclair's personal life, including asking for a description of her estranged husband's common-law wife The grievor stated that he had no recollection of doing so, and that the volume of work in the office was such that there would have been little time for a conversation of this kind The grievor could recall Ms Delorme-Leclair getting two calls on two 'separate days at lunch from a male caller, but testified that he could not have cared less about that or about where Ms Delorme-Leclair went to lunch In describing this incident, Ms Delorme-Leclair had advised Ms Desjardins that the grievor also stated that "her boyfriend" called, adding that he was "jealous" and "was only teasing" The grievor denied making any of these remarks. The grievor told Ms. Desjardins that he never said "Do you have a hot date?" and that he never commented on a new article of clothing Ms. Delorme-Leclair was wearing He never observed that Ms Delorme-Leclair looked "provocative" There was some discussion about the location of the Word Perfect manual, and the grievor stated that Ms Delorme-Leclair had to call Ms. Hutchinson six times in order to figure out how to do the work. It was true that a complainant came in for an interview one day over the lunch hour and that he asked Ms Delorme-Leclair to attend the interview and later invited her to lunch He did not, however, say at that lunch that dining 29 ,t with him was better than dining with her sister The grievor told Ms. Desjardins that he had enjoyed working with Ms Delorme-Leclair and was looking forward to her return from vacation He had not suggested to her that she come in over the course of her vacation to learn how to use the equipment. In the grievor's View, as expressed to Ms Desjardins, Ms Delorme-Leclair was a "pathological liar" The grievor was asked about his July 18, 1991, conversation with Ms Delorme-Leclair He informed Ms Desjardins that he had taped this conversation, and he offered her the tape He advised her that he did the most he could to accommodate Ms Delorme-Leclair because she was a single mother The interview lasted from 2 15 p.m. to approximately 5 00 p.m. Ms Desjardins was informed at this point in her examination-in-chief that it would be the union's evidence that she was presented, at this interview, with a wntten statement dated August 29, 1991 (hereafter the "voluntary statement") As this document figures prominently in the case, it is useful to set it out, exactly as it appears: This is a voluntary statement from myself, Francine Hutchinson, with respect to allegations made by Gisele Delorme-LeOair against Mr A.S. Hurge. On July 18, 1991, at approximately 4:00 p.m., I received a phone call at our main number from Gisele Delorme-LeClair calling me personally After we exchanged pleasantries, her first comment was "I've been having problems sleeping these past few days, I'm trying to find a way not to come back to this place" I was puzzled with this comment and I asked her why, she indicated to me that there was a personality conflict, that she preferred the job she had before, that this job was too much work for one person and that she felt she wouldn't get this job permanent anyway She also told me that she felt that Mr Hurge didn't like her and I asked her why She said that Mr Hurge had reproached her about her knowledge on the office equipment. During the short period that I have had contact with Gisele, she made comments to me that she didn't like to work for a black guy and the difference in salary wasn't worth it. I remember the first day I met her, she asked "how is this guy to work with" My immediate, reply was "great, your lucky to have a boss 30 '. like him" During our phone conversation, I informed her that what she was saying was not consistent with my impression and knowledge of Mr Hurge. I specifically said "Surely, you can't be speaking of the same person" She said she was more comfortable with her french speaking boss. On her last day, Gisele, myself and Mr Hurge went for lunch at the Red Lobster During polite conversation, Gisele told us that her boss, Mr Beaudoin, does most of his own typing on his personal computer and that this facilitates her day She also told us that while she was there, she had to do two peoples work but they have since hired another person, so when she retums, she will only have to do Mr Beaudoin's work. She also said that most of the work that Beaudoin gives her is written or typed out and she just formats it. I started working at this office since the opening day June 4th, 1991 From the begining up to present, I have had excellent working relationship with Mr Hurge. He has given me an opportunity to grow in terms of knowledge about the work, interviewing complainants and dealing with the public as well as, Police Forces. He has permitted me to use my initiative, make suggestions for improvement of office procedures and our filing system. In addition, Mr Hurge has taken the time to discuss any matter or concerns I had in order to ensure a smooth and mutually satisfactory working relationship. I have observed Mr Hurge to be most helpful, courteous and responsive. Not only to myself but to complainants and others who have been in contact with this office. Since my first contact with Mr Hurge up to this date, he has never shown any disrespect towards me whatsoever, rather, he has provided an excellent and pleasant working atmosphere based on mutual respect for one another There has been no incidents which I could perceive as harassment, either in terms of my work or my person as a woman. It should be noted that I had started the filing system for this office, and had placed a system within the computer for quick recall work that was ongoing. When Gisele first came to this office, I spent some time to familiarize her with ~- the basic procedures and what had been developed prior to her arrival. Gisele worked at the Police Complaints Commissioner's office for ten days and during that period she called me at my residence on six separate occasions requesting my assistance in regard to the operation of the computer It was evident that she had limited knowledge of the Wordperfect 5.1 and the laser printer Upon my return from vacation, I had to re-doe several pieces of her work which was improperly formatted, several spelling errors and in general unsatisfactory In addition, no filing was done and there is every indication that not much was achieved during the ten days Gisele Delorme-LeOair worked at the PCC. Finally, I wish to add, that I personally feel that Mr Hurge is a personable, sympathetic and amiable employer whom I believe is incapable of committing such actions as per the allegations in question. cc. Mr A.S. Hurge 31 .~ Ms Desjardins testified that she never received this document from the grievor or Mr Ages, although she was shown a copy of it much later What she did receive at this meeting was a letter from the grievor to his lawyer, Murray Ages, Q.C, dated September 10, 1991 Ms Desjardins took that document to a photocopier and made a copy of it, noting on the back the date of receipt. It is probably useful at this point to note that the grievor's September 10, 199', letter, which is, in effect, a response to Ms Delorme-Leclair's complaint, makes the following observation "I have no alternative but to conclude that this complaint is based on the following 1 Racial prejudice against me as a supervisor in the light of her racist comments to Francine Hutchinson, when she indicated that she wanted to return to her French boss. " In the aftermath of this interview with the grievor and Mr Ages, Ms. Desjardins received a letter from the grievor raising several concerns about the conduct of the investigation, adding: On September 27th when you met with Mr Ages and myself I was completely forthright with you and provided you with a voluntary statement from a former employee Francine Hutchinson who worked in my office from the very beginning. It was Ms. Hutchinson who made me aware that Gisele Delorme-leclairhad spoken to her in general terms about her desire to return to the Courthouse, and at that time had made racist comments. The tape I am sending you as well as a voluntary statement provided by Francine Hutchinson to my legal counsel should clearly indicate that this complaint is malicious and rooted in racism, incompetence, and a face-saving mechanism. According to Ms. Desjardins, this letter included a copy of the tape, which she had not yet heard Ms. Desjardins believed that the reference to Ms Hutchinson's voluntary statement was to something he had said she had said at their September 27th interview There had been some discussion about Ms. Delorme-leclair's competence There had also been some discussion 32 .g about the fact that the grievor belonged to a visible minority Ms Desjardins testified that there had been no discussion concerning allegations of racism, and that she had no recollection of the word "bigoted" being used Accordingly, she did not note the fact that the grievor belonged to a visible minority in her report. She had no idea that the grievor was referring to a written piece of paper when she received his letter of October 25, 1991 It is probably useful at this point to indicate that sometime after Ms. Desjardins completed her report, employer counsel received a letter from Ms. Janice Payne, the lawyer who was now acting for the grievor This letter, dated February 26, 1992, includes a "statutory declaration" from Mr Ages The salient parts of this declaration, referring to the September 27, 1991, meeting, are as follows 5. It was further made clear to Ms. Desjardins that we believe that Ms. Delorme-Leclair had been an incompetent, bigoted employee who made false allegations against Mr Hurge to protect her employment record. There were many references to statement we had in our file from Francine Hutchinson, a copy of which is attached as Exhibit "A" 6. I clearly recall Ms. Desjardins asking for us to give her a copy of the said statement. I gave her the original copy and she left the room we were in for the purpose of using the office photocopier, and making a copy for herself 7 It was my understanding that Ms. Desjardins was going to speak to Francine Hutchinson about the details set out in the said statement. 9 Ms. Desjardins did not keep her promise to us to meet with us in person to review any further information she had received. She telephoned on January 27, 1992 to tell me that her report was completed and that she would not be meeting with us nor would she be discussing any new information she had received. She indicated that she was following instructions she had been given by Mark and other persons. When I asked her who Mark was, she said it was Mark Conacher, and that they were on a first name basis. 33 " Ms. Desjardins testified that she never promised the grievor and Mr Ages that she would meet with them again before issuing her report. What she did say was that she would meet with them "pending any new findings." The investigation ended up taking a great deal of time, moreover, Ms Desjardins received instructions from a Mr Marcel Donio at Management Board Secretariat (hereafter "MBS") to keep confidential the information obtained during the investigatory processs She did not obtain any new information from Ms Delorme-Leclair She did, however, obtain some information about the experiences of Ms Rittersporn and Ms Boreham ThiS information consisted of statements given to the original investigator Ms. Desjardins never met with either woman, although she spoke to both on the telephone As a result of advice from MBS, she determined th?t it was not neccessary to bring these new allegations to the grievor's attention prior to issuing her report Given the expense involved in travelling to Ottawa and Toronto to interview witnesses, not to mention pressures on her time because of workload, Ms Desjardins was advised to conduct interviews by telephone Before -completing her report, Ms Desjardins spoke to Ms. Hutchinson on the telephone She experienced a great deal of difficulty in reaching her, but was finally able to do so Ms Hutchinson reported that she got along well with the grievor and that he had become a close friend, one who regularly spoke about his personal affairs. Ms. Hutchinson reported that the grievor had introduced her to his "girlfriend," and, according to Ms. Hutchinson, would spend time with his girlfriend and then call his wife as if nothing had occurred There was some discussion between Ms Hutchinson and the grievor relating to the grievor taking his girlfriend to his cottage Ms Hutchinson also reported that the grievor said that he "fantasized" about while they were on their way to a restaurant. Ms Hutchinson did not have 34 ., any objection to this According to Ms Desjardins, Ms Hutchinson also told her that the grievor did not want Ms Delorme-Leclair in the office, and that he was happy to see her leave because she did not represent the office well Ms Desjardins also testified that Ms Hutchinson told her that the grievor referred to Ms. Delorme-Leclair as a "dog," and made many comments about her poor work performance The grievor told Ms Hutchinson, according to Ms. Desjardins, that he did not like Ms Delorme-Leclair, nor did he care for the way she wore her hair He also raised concerns about Ms. Delorme-Leclair and Ms Hutchinson speaking French in the office He liked Ms. Hutchinson, and would refer to their "good chemistry" and give her "positive strokes." According to Ms Desjardins, Ms. Hutchinson made no , reference in their December 11, 1991, telephone conversation to any "voluntary statement" or to Ms Delorme-Leclair being motivated by racial prejudice On February 25, 1992, Ms. Hutchinson signed another statement in which she took issue with a number of the statements attributed to her in Ms. Desjardins' report. Ms Desjardins conceded that she was not perfect, and that some things might have slipped by She insisted, however, that she had accurately recorded Ms Hutchinson's remarks in her interview notes, as well as in her report. Ms Desjardins' report was completed and submitted on January 21, 1992 This 32-page report sets out the chronology of Ms. Delorme-Leclair's employment relationship It then describes the various allegations she made, as already set out in this award It refers to the Rittersporn and Boreham incidents, but does not set out the grievor's response to the allegations implicit in these events because they were not presented to him -- 35 t prior to the submission of the report. The report also contains the record of a number of interviews with others, including Mr Conacher and Mr Beaudoin. By and large, these other interviews were not material to the findings Ms Desjardins eventually reached that "in the view of the balance of probabilities demonstrated in the analysis, it is reasonable to conclude that the respondent has committed acts of verbal sexual harassment which were offensive to the complainant and are known, or should reasonably be known, to be unwelcome" Cross-Examination of Ms. Desiardins Ms Desjardins was asked numerous questions in cross-examination over the course of several days. When Ms. Desjardins was appointed, she received a copy of a preliminary report prepared by Ms Malyon, the investigator initially assigned to the case Headed "Sexual Harassment Complaint From Mark Conacher," this report sets out a copy of Ms. Delorme-Leclair's complaint, as well as an itinerary of events Suffice it to say that this itinerary makes it clear that Ms. Malyon began her investigation before a ,- complaint was received Indeed, it indicates that it was Ms Malyon who suggested to Ms Delorme-Leclair that she speak with an adviser after Ms Delorme-Leclair informed Ms Malyon she was not interested in pursuing the matter In the aftermath of accepting this advice, and speaking to an adviser, Ms Delorme-Leclair filed her complaint. Ms Malyon's report also includes a summary of the Rittersporn and Boreham incidents, which Ms. Desjardins read Ms. Desjardins also reviewed an August 19, 1991, letter from the grievor to Ms. Malyon which was sent following receipt by the grievor of a copy of Ms. Delorme-Leclair's complaint. The letter refers to problems with work performance, but makes no allegations whatsoever of any racial motivation 36 'f underlying the complaint. While there had been some discussion about cultural differences in her interview with Mr Beaudoin, Ms Desjardins did not recall there being any discussion about racism in her interview with the grievor and Mr Ages, nor had she received Ms Hutchinson's voluntary statement to that effect. Accordingly, she focused her investigation on Ms Delorme-Leclair's specific complaints. Ms. Desjardins was asked a number of questions about who she interviewed and when, and what impressions she formed about the genesis of Ms. Delorme-Leclair'S complaint. She came to the conclusion that Mr Beaudoin and the harassment adviser encouraged Ms. Delorme-Leclair to file a complaint, and that Mr Conacher also had some involvement in that process A number of questions were also asked about certain information obtained during the course of the investigation relating, among other things, to the establishment of the office and the nature of different reporting relationships Ultimately, this information, along with some "after the fact" eVidence, is not useful to us in the disposition of this case Ms. Desjardins testified that she was advised by Mr Conacher that the grievor was not informed of the Rittersporn and Boreham incidents after they occurred because Mr Conacher felt that he wanted to preserve the grievor's role and ability to succeed In particular, Mr Conacher informed Ms. Desjardins that the OPCC had a particular culture, one that was not very welcoming to newcomers Accordingly, he told Ms. Desjardins that he did not want to do anything that would prevent the grievor's assimilation into a new corporate culture Ms. Desjardins was asked some questions about her background and experience in conducting sexual harassment investigations. She testified 37 t that she was approached in 1 990 and asked to become a designated mmlstry investigator under the policy She went to a day-long pilot training course in October 1990 She agreed that the training materials she received were very general When she was asked to investigate Ms. Delorme-Leclair's complaint, that was the first time she had actually conducted an investigation According to Ms Desjardins, it was her responsibility as an investigator to follow the rules and regulations set out in the Sexual Harassment Policy In the Training Manual, a recommended procedure is set out, and Ms. Desjardins agreed that one of the requirements of that procedure was to notify the "alleged harasser of any new allegations arising during investigation " The harasser is supposed to be "asked for a defence" Ms. Desjardins testified that this was very important, but that she had not brought the - Rittersporn and Bareham allegations to the grievor's attention even though those allegations eventually formed part of her report. According to Ms Desjardms, she telephoned Mr Donio on January 13, 1992, and, after explaining the situation, Mr Donio told her that it was unncessary in the circumstances of this case to bring the new allegations to the grievor's attention Mr Donio told her not to disclose the information given to her by witnesses However, Ms Desjardins added, she believed that the grievor already knew about the Rittersporn and Boreham allegations. Why then did she have any concern about the confidentiality of these witness statements? Because, she replied, she was not certam whether the statements contained new allegations requiring a defence or previously known allegations She also had some concerns about the applicability of the FrE}edom of Information Act. 38 I '" Ms. Desjardins interviewed a number of other people, some of whom made allegations about the grievor None of these allegations were ever put to the grievor The only allegations that were raised with him were those provided by Ms Delorme-Leclair Ms Desjardins, nevertheless, relied on these other allegations, at least in part, in reaching her ultimate conclusion Ms. Desjardins agreed that it would only have been fair to allow the grievor to reply to the various allegations she had collected, and that is why she turned to Mr Donio for advice She did not mention to Mr Donio that the grievor and his legal counsel had specifically requested a second meeting before completion and submission of her report. Ms Desjardins was referred to the "Investigation Plan" set out in the Training Manual That document states, in part, that "the role of the investigator is to investigate the sexual harassment complaint in the most - neutral and objective manner Hearing the alleged harasser's version and investigating it is therefore necessary" Ms Desjardins agreed that this was important, and she testified that she did hear the grievor's verSIon of events with respect to Ms Delorme-Leclair's allegations. Ms Desjardins understands that the term "due process" as set out in the Training Manual means "absence of bias," "right to know what the accusation is," "witnesses of both parties," "right to present information," "right to representation," and "access to findings and chance to rebut them." She agreed that had she given the grievor the opportunity to comment on the additional allegations, he would almost certainly have taken advantage of it. With respect to her concerns about "confidentiality," Ms Desjardins was aware that she could not take statements "off the record" She was also aware that at the time of her investigation, the OPS policy was limited to sexual harassment; it was later extended to include workplace harassment. 39 '. She knew that the government's policy required her to keep the alleged harasser informed throughout the investigation process, and testified that she spoke with the grievor two times: first, at their September interview, and second, when she told him that the report was complete She also spoke to Mr Ages and kept him advised about what was going on Had she had new evidence which corroborated Ms. Delorme-Leclair's version of events, she would have scheduled a second meeting Upon careful examination, however, it was not clear that Ms Desjardins even put all of Ms Delorme-Leclair's initial allegations to the grievor Ms Delorme-Leclair had alleged that the grievor sought to prohibit her from speaking French in the office She agreed that unless the grievor heard about this allegation from someone else, he would have had no way to respond to it prior to the issuing of her report. Referring to that report, the structure of which mirrors Ms Delorme-Leclair's complaint, dividing the allegations against the grievor into sexual harassment and workplace harassment, Ms Desjardins was asked a number of questions about the manner in which she recorded certain events For instance, she describes how the grievor asked Ms. Delorme-Leclair to stay over the lunch hour to assist in the interviewing of a complainant, and she sets out the comments the grievor is alleged to have made when they went out for a late lunch. But she fails to indicate that it was Ms Delorme-Leclair's job as intake officer to assist with interviews of this kind. All that Ms Desjardins could say was that had the meeting taken place at any other time during the day, it would not have been a problem. What apparently made it problematic was that the grievor asked her to stay over her lunch hour Ms. Desjardins agreed that in her interview notes she recorded Ms~ Delorme-Leclai! ~_h_aving said she had "no 40 .~ objections" to staying over the lunch hour, but that she did not indicate this in her report. Rather, she characterizes the event as her having cancelled her lunch to "accommodate the respondent's work schedule " Ms. Desjardins agreed that she could have contacted the complainant in an effort to determine whether the lunch-time interview was some kind of ~, "set up." That is exactly the course she took with respect to the allegations that the grievor had said Ms. Delorme-Leclair's "boyfriend" called She contacted the individual in question and generously described his comments in her report. This is not the only example of Ms. Desjardins seeking corroboration of some allegation against the grievor, but failing to follow up her investigation with further inquiries that might have been favourable to him. Ms. Desjardins was asked many other questions about her report, about the manner in which she went about preparing it, and about the language she used in describing certain events. For example, the account in the report of her interview with Ms Hutchinson begins with the following observation "Witness C, did not advise management of potential harassing behaviour on the part of the respondent. Witness C did not file a formal complaint but instead decided to handle the working relationship she had with the respondent on her own." Ms Desjardins agreed that someone reading this would think that Ms Hutchinson believed she had been sexually harassed Ms. Desjardins knew that Ms. Hutchinson did not believe this It was Ms. Desjardins who believed that the grievor's comments to Ms. Hutchinson constituted sexual harassment. Indeed, Ms Desjardins testified that the fact that there were three witnesses who had experiences similar to those of Ms Delorme-Leclair, 41 f namely, Ms Rittersporn, Ms Boreham, and Ms Hutchinson, led Ms. Desjardins to the conclusion that Ms Delorme-Leclair's uncorroborated allegations of sexual harassment were true Even though the allegations of these three individuals were never put to the gri~vor for response, they were, nevertheless, the evidence that tipped the balance in favour of Ms De lorme-Leclair' s account. Even though Ms Desjardins had received evidence from two witnesses, namely, Ms. Hutchinson and a woman who succeeded her in employment, that the grievor had not sexually harassed them, she did not consider that to be a factor worth notmg She pOinted out that one of those individuals was hired after the formal complaint was filed, and, indeed, had worked for the grievor only for a short time when she submitted a statement on his behalf Ms. Desjardins was asked a number of other questions concerning the evidence she obtained about the filing of the complaint and her views with respect to the credibility of various witnesses Here Ms. Desjardins made note of the fact that the grievor referred her to Ms. Hutchinson and that thIS was a factor to be taken into account in the assessment of credIbility, yet for some reason which she could not explain, she had made no similar finding with respect to the witnesses suggested by Ms Delorme-Leclair Ms Desjardins was questioned about her own interpretation of what constitutes sexual harassment, and about consistencIes and inconsistencIes in the various allegations of harassment. She was also asked about the grievor's state of knowledge, and agreed that she indicated in her report that the grievor "was never formally introduced to the OPS sexual harassment policy" and was never made aware by management that his behaviour might constitute sexual harassment. Ms Desjardins concluded that the gnevor should have been so advised when management became aware of his "potentially offensive conduct" in the spring of 1991 ----- 42 I -f In hindsight, Ms Desjardins believes that she should have pursued the grievor's allegation, limited though it was, of "racism" set out in his September 10, 1991, letter alleging Ms Delorme-Leclair's professed desire to return to her "French-speaking boss" Ms. Desjardins believes that allegations of racism should not be taken lightly She insisted, however, that neither the grievor nor Mr Ages referred to it during their September 27, 1991, interview Re-examination of Ms. Desjardins Ms. Desjardins was asked a number of questions in re-examination She insisted that she never received a copy of Francine Hutchinson's voluntary statement in her September 27, 1991, interview with Mr Ages and the grievor It would have been difficult for her to have raised the topic of racial discrimination at this meeting because she received a copy of the grievor's September 10, 1991 letter only at the conclusion of the interview, at which time she took it to another room for copying Ms Desjardins Insisted that her memory, as supplemented by her notes of this meeting, was accurate, and that neither the grievor nor Mr Ages took notes or raised racism as a factor leading Ms Delorme-Leclair to file her complaint. Had either of them done so, or had she received a copy of Ms. Hutchinson's voluntary declaration, she would have raised it in her report. She noted that her report did have a number of documents appended to it, namely, the grievor's letters of August 19, 1991, September 10, 1991, and October 25, 1991 Evidence of Clare Lewis Mr Lewis, Ontario's Police Complaint's Commissioner, testified Appointed to this position in 1985, Mr Lewis previously served as a provincial court judge He testified generally about his duties and responsibilities His 43 t office is required to administer Part VII of the Police Services Act. It investigates public complaints against police officers, and does so in an open and accountable manner Initially, the jurisdiction of the commission was limited to Metropolitan Toronto As a result of some legislative amendments, the OPCC was created with provincewide jurisdiction This expansion necessitated hiring regional staff Ottawa was, for obvious reasons, designated a bilingual region, and a bilingual investigator was sought. The grievor, who is not bilingual, applied for the position, and Mr Lewis testified that Mr Conacher and Mr Guest suggested that consideration be given to hiring the grievor because of the many other qualities he would bring to the position According to Mr Lewis, Mr Conacher told him that the grievor had years of experience in the criminal justice system and was also a member of a visible minority Although the grievor was effectively hired, he was still invited to Toronto to meet Mr Lewis The two discussed the grievor's background and interest in the position, and his knowledge of Ottawa and the criminal justice system The grievor impressed Mr Lewis, and he formed the opinion that Messrs Conacher and Guest had selected a good candidate Although the advertisement for the job clearly indicated that it was available on a secondment basis only, the grievor expressed surprise on learning this After telling the grievor that he had the job, Mr Lewis advised him at thiS meeting that he would check his references, at which point the grievor asked him not to do so on the basis that his supervisor was "bigoted against him" and had promoted others over him. On this basis, Mr Lewis agreed not to conduct a reference check with the grievor's current supervisor, and advised the grievor that he had no reason for concern about racism at the OPCC. 44 " The secondment agreement provided that the grievor would begin work as the Regional Senior Investigator/Community Outreach Officer on April 15, 1991, and that the agreement would run until April 15, 1992 The purpose of the secondment is indicated as "developmental" There are two other terms of note (5) PERFORMANCE. The receiving organization will establish performance standards and administer any required disciplinary action, in accordance with its policies, and in consultation with the Regional Director, Eastern Region, Ministry of Correctional Services, in Kingston. The performance of the employee will be assessed during the acting appointment by the Director of Investigations of the Office of the Police Complaints Commissioner (6) COMPLETION OF ASSIGNMENT This acting agreement may be terminated by ~ny of the undersigned parties at any time upon thirty (30) days written notice. At the end of the acting period, April 15, 1992, Mr Hurge will return to his previous position at the Ottawa East Probation and Parole Area Office, Ministry of Correctional Services. The grievor was informed, in his interview with Mr Lewis, that there would be a competition for the permanent position, but that if the grievor did well during the secondment, that would obviously be a factor standing him in good stead Mr Lewis was advised in the summer of 1991 that an investigation of allegations of sexual harassment concerning the grievor and Ms. Delorme-Leclair had been initiated Prior to this, Mr Lewis had been made aware of the Rlttersporn and Boreham incidents and, in fact, had been involved in the decision not to bring them to the grievor's attention Mr Lewis was satisifed that Ms Rittersporn had handled the incident in her own way and that further action was not necessary With respect to the Boreham incident, there had been no complaint. All there was were some rumours about some off-duty conduct. Both incidents had taken place early in the grievor's employment at the OPCC, and Mr Lewis did not want to alienate or demoralize the grievor as he became part of the OPCC culture He was aware that there was a "clubby" atmosphere among employees in the 45 .t Toronto office, and he did not wish to impede the grievor's integration into the club Mr Lewis and the grievor did not discuss the investigation until after it was completed, although on one occasion the grievor attempted to do so In January 19~2, Mr Lewis received a copy of Ms. Desjardins' report. On reviewing that document, it was immediately apparent to Mr Lewis that Ms. Desjardins had relied, in reaching her conclusions, on allegations that were never presented to the grievor A number of other problems with the report, including allegations of significant procedural defects, were brought to his attention in the form of a letter sent to the Ministry of the Attorney General from the grievor's lawyer, Mr Ages. The gravaman of the complaint / in the Ages letter was that Ms Desjardins had relied on allegations never presented to the grievor and had failed to keep her promise to meet with the grievor one more time prior to submitting her report. While Mr Lewis would not have normally become directly involved in a matter of this kind, he testified that he was sufficiently concerned about it to decide to travel to Ottawa so he could meet with the grievor and his counsel and hear the grievor's response to the various allegations and findings set out in the report. The meeting was scheduled for February 5, 1992, at 2 00 pm. Mr Lewis testified that he went to the meeting with an open mind He valued the grievor) as an employee, and noted that the grievor was a "significant hire" When the meeting began, the grievor arrived represented by new .counsel, Ms Janice Payne, a well-known Ottawa labour lawyer Ms Payne advised Mr Lewis, who was accompanied by Mr Conacher, that she had only just been retained and had not had much time to review the report. She asked Mr Lewis to adjourn the meeting to another date M r Lewis refused He informed her and the grievor that he had travelled to Ottawa 46 !' specifically for this meeting, and that it had been scheduled in advance He noted that the grievor had not, prior to the commencement of the meeting, notified anyone in management about his change in counsel, nor had he requested an adjournment. Mr Lewis invited Ms. Payne to take as much time as she required that afternoon to familiarize herself with the report, but he insisted that the meeting proceed At this point, Ms. Payne indicated to him that she did not require any additional time and, in the result, the meeting commenced. Mr Lewis then reviewed the report with the grievor and Ms. Payne, line by line, paragraph by paragraph. Suffice it to say that the grievor denied virtually everyone of Ms Delorme-Leclair's allegations, stating in a number of cases that he would not do or say what had been alleged. Mr Lewis could tell that the grievor -was upset that the Rittersporn and Boreham allegations had never been put to him for comment; the same was true with respect to the allegation that the grievor had refused to allow Ms Delorme-Leclair to speak French Mr Lewis knew this was wrong Accordingly, he gave the grievor the opportunity to respond to these allegations, and the grievor either denied them or stated that he could not recall He did not provide any alternative explanations Midway through this process, in the context of a discussion of the report's findings with respect to Ms. Hutchinson, two unexpected events occurred First, the grievor produced Ms. Hutchinson's voluntary statement, and Mr Lewis was informed that this statement had been provided to Ms Desjardins. Second, the grievor advised Mr Lewis that he had surreptitiously taped a conversation with Ms Hutchinson Mr Lewis testified that he was surprised and dismayed to learn that the grievor had secretly taped a colleague In his words, the grievor's action in doing so - 47 ".t was "reprehensible" Ms Payne told the grievor to put the tape away, but, after determining that the tape was OPCC property, Mr Lewis secured it and then played it. It was determined that the taped conversation took place after Ms Hutchinson provided her voluntary statement. The rest of the report was then reviewed, and Mr Lewis called a recess Mr Lewis testified that he took some time to consider the voluntary statement. He was very disturbed about the allegation that the voluntary statement had been provided to Ms DesJardins, and an unsuccessful effort was undertaken to determine if this was true. Mr Lewis considered adjourning the proceedings at this point, but then decided against doing so for a number of reasons. First, Mr Lewis did not like the fact that the grievor had taped two co-workers Second, he had given the grievor an opportunity to comment fully on Ms. Delorme-Leclair's allegations, but all he had done was deny them. And third, he concluded that nothing Ms. Hutchinson said could be believed .- In brief, Mr Lewis formed the view that the voluntary statement was, in fact, contrived by Ms. Hutchinson to assist her in obtaining a full-time job He noted that Ms Delorme-Leclair was aware when she was interviewed for the job that her supervisor, if she was successful in obtaining it, was a black man This suggested to him that she would not have subsequently made the racist comments attributed to her by Ms. Hutchinson Moreover, the timing of Ms Hutchinson's voluntary statement was questionable If Ms Delorme-Leclair really had made comments of this kind, why had Ms. Hutchinson waited so long to prepare her voluntary statement? Surely, Mr Lewis suggested, it would have been written at the time Ms Delorme-Leclair's secondment agreement came to an end. Mr Lewis also noted that when the grievor wrote to Ms. Malyon, on August 19, 1991, with - -. - 48 " respect to Ms Delorme-Leclair's complaint, he made no mention of racism as a motive underlying the filing of the complaint. Mr Lewis noted that the grievor had been extremely active in his support of Ms. Hutchinson's application for the permanent position, and he concluded that the voluntary statement was a likely exchange for the grievor's support. Mr Lewis also noted that the voluntary statement was dated August 29, 1991 Mr Lewis knew that during the following weekend his office had been informed that Ms. Hutchinson had a criminal record, and that this fact had not been previously disclosed In Mr Lewis's opinion, once the grievor realized that he had to report Ms. Hutchinson's criminal record, he decided to tape the conversation with her informing her of his having reported her criminal record in order to protect himself should she later raise a compl"aint. In Mr Lewis's view, in listening to the conversation, it was clear that Ms. Hutchinson then realized that she would not be getting the job as the grievor had, to use Mr Lewis's words, "cut her loose" This disappointment explained a number of the damaging things she later said to .- Ms Desjardins which were included in her report. For all these. reasons, Mr Lewis concluded that the best possible course was to ignore the evidence with respect to Ms Hutchinson Obviously, Mr Lewis had to determine whether the investigator had received a copy of the voluntary statement. After considering the matter, he decided it was most improbable that an independent investigator would deliberately hide a document that she knew would eventually come forward, especially when that document was purportedly given to her by a lawyer Ms. Desjardins had no motive for concealing it, and Mr Lewis concluded that she had not done so And having made that determination, it followed that a further adjournment was unnecessary 49 t Mr Lewis -also formed the view, having heard and observed the grievor throughout the interview, that he had been dishonest. In questioning the grievor about the Rittersporn and Boreham allegations, he had not done so for the purpose of establishing that they were similar facts suggesting that the grievor more likely than not to have done what Ms. Delorme-Leclair alleged, rather, he questioned the grievor about these incidents to see what recognition the grievor had, if any, that there was a problem with his approach. He also sought to test the grievor's credibility, by asking him about these incidents and then measuring his response For example, had the grievor said, "Oh yes, but that is not the way it happened, this is what happened, or this is what I meant, It that would have indicated to Mr Lewis that there was another explanation However, the grievor simply denied all the assertions that were made. With respect to Ms Delorme-Leclair's allegations, which, as already noted, were substantially denied, Mr Lewis formed the view that the grievor's denials could no!- be believed and that his allegations of racism were spurious and self-serving. He did not accept the grievor's suggestion that incompetence was another factor underlying her complaints, and he determined that the incidents set out in the report, and discussed in the meeting, had, in fact, occurred as alleged Mr Lewis reached the specific conclusion that the grievor had verbally sexually harassed Ms. Delorme-Leclair, that the comments she reported had occurred as she had reported them, that the grievor knew they were unwelcome, and that this knowledge was established by the fact that the grievor moved quickly to end the secondment arrangement even though he had no authority to do so Although Mr Lewis did not consider it at the time, the fact that the grievor taped a conversation with Ms Delorme-Leclair, and the nature of his comments on that tape, subsequently provided Mr Lewis with anothec_ 50 " - reason for concluding that the grievor knew that he was in trouble, had something to hide, and was trying to cover up Having reached these conclusions, Mr Lewis determined that he had a responsibility to take action He believed that the grievor's conduct was unacceptable and had resulted in an irrevocable breach of trust. He therefore decided to terminate the grievor's secondment arrangement. Mr Conacher had earlier advised an official at the grievor's home department that there was a possibility of disciplinary action resulting from this meeting, and he had received the go-ahead to take any necessary steps According to Mr Lewis, had the grievor indicated to him that he understood that his comments and actions were troubling to others - that he had a problem and was prepared to confront it - he would have reached a different decision Instead, all that he had heard were denials There was no evidence of remorse or regret. In Mr Lewis's opinion, the grievor's approach was e!ltirely confrontational, and counselling was therefore not an appropriate remedial response Mr Lewis testified that he decided to end the grievor's secondment, and he advised him of that fact. A few days after this meeting, Mr Lewis received a long letter from Ms. Payne The letter sets out some of the concerns Ms Payne had earlier raised, such as the need for an adjournment and various procedural deficiencies apparent on the face of Ms. Desjardins' report. Ms. Payne indicates in this letter that in the aftermath of the February 5, 1992, meeting, she had had an opportunity to speak with Ms. Hutchinson and could report, among other things, that Ms Hutchinson definitely told Ms Desjardins about Ms Delorme-Leclair's racist remarks Mr Lewis testified that he conducted a further investigation into this matter In brief, Ms 51 t Desjardins was contacted and she stated that the facts were as she recorded them in her report, not as Ms. Payne had alleged Mr Lewis did not change his decision, the secondment was ended, and a letter of reprimand was placed in the grievor's personnel file Cross-Examination of Mr. Lewis Mr Lewis was asked many questions in cross-examination over the course of several days According to Mr Lewis, he was advised that two other candidates for the grievor's position were bilingual and acceptable However, Messrs. Conacher and Guest also told him that they thought the grievor should be selected, in part because of his good links with the black community When Mr Lewis met the grievor, he concurred with their conclusion The grievor was, he testified, an impressive man with impressive qualifications Mr Lewis agreed that it was not unusual for someone to identify their supervisor as an inappropriate source for references As a new office, there were problems in staffing and organization, and Mr Lewis agreed that the lines of command were not necessarily clear Ms Delorme-Leclair, for instance, formally reported to someone in Toronto, but it was the grievor who directed her work at the Ottawa office There were also some difficulties occasioned by the fact that when the grievor was first hired, there was no Ottawa office The grievor had to find premises and make the necessary arrangements to open an office Before the office was actually opened, he worked out of his home The grievor had a big job and, Mr Lewis agreed, was under a lot of pressure Apart from the matters under review in this case, Mr Lewis had no complaints about the grievor's work and thought he was doing a good job. ----- I. 52 " Considerable time in cross-examination was spent with what we have ultimately determined to be peripheral and irrelevant issues, including discussion of a newspaper article that incorrectly identified the grievor as the Police Complaints Commissioner, and certain interactions and requests by the grievor for further support from the Toronto office for various investigations and activities, as well as details about those investigations and activities, in the Ottawa region Suffice it to say that we do not find that any of these events, all of which have been carefully considered, had anything to do with management's response in the wake of Ms Desjardins' report. Moreover, there was also some evidence indicating that in advance of the February 5, 1992, meeting, the employer arranged for one or possibly two investigators to come to Ottawa The grievor was not notified of these arrangements, and it was suggested that these arrangements were not ordinary operational plans, but were indicative of the fact that Mr Lewis had already decided to end the secondment. Having heard all the evidence, there is no basis for any finding that Mr Lewis had prejudged the grievor and had arrived at a decision in advance of February 5, 1992 There was also considerable discussion about various investigators who were "waived" into permanent positions, while the grievor, notwithstanding his efforts to the contrary, was repeatedly told that he would have to compete Mr Lewis testified that he had no intention of forgoing a competition for anyone while he or she was a respondent in a sexual harassment complaint. Accordingly, job advertisements for the permanent position in Ottawa were prepared Finally, a number of questions were asked respecting the publication in the Ottawa Citizen of an article based on the Desjardins report. None of this evidence is material to the issues before us. Certainly, there is no basis, on the evidence we heard, to impute any bad faith or other improper action on the part of Mr Lewis in connection 53 t with this matter As already noted, Mr Lewis first heard about the Rittersporn and Boreham incidents in April or May 1991 He did not think at the time that they were symptomatic of a larger problem, and he did not believe it would lead to a larger problem For these reasons and others, he concurred in the decision not to take any action. He again noted that one of the incidents was informally resolved; the other had not even been reported It was simply a rumour making the rounds Mr Lewis is aware that one of the obligations of management is to bring allegations of sexual harassment immediately to the attention of the alleged harasser, and he testified that, in retrospect, he wishes that he had done so In late July or early August 1991, Mr Lewis was informed by Mr Conacher that word had been received that Ms DeJorme-Leclair was alleging that she had been sexually harassed, but that no complaint had been received Mr Lewis was asked why these allegations were not immediately raised with the grievor, given the requirement in the OPS Sexual Harassment Policy to do so In response, Mr Lewis testified that at this point it was merely a matter of time If a complaint had not been filed, the matter would have been raised When the grievor later attempted to discuss the matter with him, a complaint had been filed and Mr Lewis did not think it would be appropriate, once an investigation had commenced, for him to become involved When Mr Lewis got Ms Desjardins' report, he immediately determined, for the reasons already outlined, that there were problems with it. Having made that determination, he decided that he had to reach his own conclusions, since he could not rely on those Ms. Desjardins had reached. 54 '% The February 5, 1992, meeting was scheduled, and when Ms. Payne asked for an adjournment and referred to procedural problems with the report, he thought they probably shared the same concerns When he initially rejected her request, he had no knowledge of Francine Hutchinson's voluntary statement of August 29, 1991 While Mr Lewis was copied on a I memorandum from the grievor to Peter Guest, the Director of I Investigations, dated October 21, 1 991, which referred to the grievor I facing "the most stressful experience of [his] life. based on the bigotry of a I past support stafff employee," he did not make any connection between that I statement and Ms. Hutchinson's voluntary statement. He testified that he I could have adjourned the meeting at any point, and would have done so had I he determined that an adjournment was appropriate I It was pointed out to Mr Lewis that Ms. Payne indicated she had just been retained, and Mr Lewis was asked whether there would have been any prejudice in acceding to her adjournment request. Mr Lewis replied that the request could have been made the previous day, when Ms. Payne was retained, and he observed that he offered Ms. Payne the opportunity to spend some time with her client before the meeting began. At this point, she indicated that she was prepared to proceed. Mr Lewis was not aware that the tape recorder that the grievor used to record Ms Delorme-Leclair and Ms. Hutchinson had been provided to him by the OPCC. Moreover, he did not know that Mr Guest had told the grievor to tape conversations if he found himself in a sticky situation. Mr Lewis did not approve of this, and in his eight years in the Commissioner's job he had never heard of any investigator engaging in surreptitious taping Mr Lewis agreed that the grievor voluntarilly surrendered the two tapes, and did not appear to believe that he-had, in recording either conversation, done 55 , anything wrong Mr Lewis noted that there was no disclosure of the Delorme-Leclair tape until after the sexual harassment complaint was filed. He agreed that the grievor did not try to hide the tapes, rather, he pointed out that the grievor used them when he thought there was an advantage in doing so Both the Delorme-Leclair and Hutchinson tapes, in this context, were instrumental to Mr Lewis. He testified that he concluded that the grievor had secretly taped Ms Delorme-Leclair as part of his effort to secure her return to her home position, and had done the same thing to have Ms Hutchinson on the record after securing her voluntary statement." While Mr Lewis agreed, for example, that the Delorme-Leclair tape did not tell him that the grievor said "your hair is provocative, II it did suggest that the grievor had done so and that this was why he was pushing her to return to her original job. Mr Lewis used Ms Desjardins' report, and the allegations set out in it, to question the grievor - to obtain his version of events. Mr Lewis agreed that while he had the opportUnIty to assess the grievor's credibility, he never spoke to Ms. Delorme-Leclair or Ms Hutchinson, and so could not assess their credibility With respect to Ms. Rittersporn and Ms. Boreham, what bothered Mr Lewis was the absolute nature of the denials Had there been an explanation, that would have gone a long way to satisfying him that there might have been a misunderstanding M r Lewis had difficulty believing the denials. In fact, Ms Payne, interjecting during Mr Lewis's questioning, at one point even proposing to the grievor that there might have been a misunderstanding The grievor insisted that there was nqt, as the incidents had never taken place While Mr Lewis could understand that the grievor was angry and upset, he pointed out that the references to the Rittersporn and Boreham allegations, - 56 " although unexpected in the report, were hardly news to the grievor He had been advised of them the previous November Mr Lewis agreed that just because someone denied something did not mean that they were incredible In this case, however, he reached that conclusion. After assessing all the evidence, Mr Lewis believed that the grievor had sexually harassed Ms Delorme...Leclair and then tried to subvert the evidence by tricking a co-worker into making admissions in secretly taped conversations While Mr Lewis became aware on February 5, 1992, that it was being alleged that racism was the reason why Ms. Delorme-Leclair had filed her complaint, he did not accept that allegation. Moreover, while the Desjardins report indicated that the grievor believed that incompetence was the reason why Ms Delorme-Leclair sought to terminate her secondment, Mr Lewis did not accept this explanation either, nor the suggestion that the complaint was inspired by a concern that a negative appraisal would affect Ms Delorme-Leclair's future employment prospects The grievor had hardly, he suggested, given Ms. Delorme-Leclair a chance The grievor may not have liked Ms Delorme-Leclair's job performance, but Mr Lewis was convinced that that was not the reason he initiated the process of ending her secondment by calling her while she was off on holiday One of the grievor's parting remarks on the tape was that he hoped thIS was "the last of what I hear of this." And Ms. Delorme-Leclair indicated that it would be Mr Lewis pointed out that if Ms. Delorme-Leclair had not reported what had taken place to Mr Beaudoin, the information would have never made its way back to Toronto and the grievor would never have been found out. In deciding to terminate the grievor's secondment, Mr Lewis knew that it would temporarily affect an existing investigation However, having [. -- 57 .f determined that the grievor had lied, and having concluded that he engaged in sexual harassment, Mr Lewis believed that he had no option but to terminate the secondment arrangement, and he did so knowing that there was a risk that the grievor would accuse him of racism for doing so Nevertheless, Mr Lewis had no intention, in all the circumstances, and based on the findings he had made, of allowing the grievor to continue in his investigator's position Evidence of Phyllis Bartley Ms Bartley, the OPCC's Manager of Administrative Services in Toronto, testified She assummed this position In July 1991, a few days before Ms i I Delorme-Leclair ended her secondment. Regional intake officers, such as Ms Delorme-Leclair, formally reported to her Upon assuming this position, I Ms Bartley received a telephone call from the grievor Her notes of this I call were introduced into evidence and they indicate that the grievor reported to her that he had had to reprimand Ms Delorme-Leclair with respect to an incident involving a printer, and that Ms Delorme-Leclair had not taken the reprimand well The grievor further reported to her that Ms. Delorme-Leclair had decided to return to her home position Ms Bartley advised the grievor that she wished to ensure that Ms. Delorme-Leclair did not feel forced into going back to her old job, and one reason why she was concerned was that the secondment had been in place only for a few weeks. The grievor reported that it was her idea to do so Appropriate arrangements were then made Ms. Bartley also told the Board that she had a meeting with the grievor in Toronto to diSCUSS this matter A memorandum was subsequently prepared documenting this conversation According to Ms Bartley, and this memorandum, which was- introduced into evidence, at one point in the- u__ 58 " conversation, the grievor "referred to Francine as having beautiful brown eyes. " Ms Bartley testified that Ms Hutchinson was let go on September 4, 1991, as a result of the revelations about her criminal record On September 6, 1991, the grievor telephoned Ms. Bartley from Ottawa lito say that when he returned to his office there was a note on his desk saying 'Thank you for betraying me "' According to Ms Bartley's memorandum, "Archie felt somewhere there had been a lack of communication because he said that he was not aware that we would be letting Francine go immediately " Cross-Examination of Ms. Bartley Ms. Bartley spoke to Ms Delorme-Leclair, after being advised by the grievor that Ms. Delorme-Leclair wished to end her secondment. According to Ms. Bartley, Ms Delorme-Leclair did not communicate anything to her suggesting that she had been forced out. Moreover, she also spoke to Mr Beaudoin at this time, and he did not indicate that there was anything amiss Evidence of Mark Conacher Mr Conacher testified As the OPCC's Executive Director, Mr Conacher is responsible for directing the day-to-day activities of five managers, twenty-two investigators, and nine intake officers located in nine regional offices across the province At the time of the events outlined in this award, the grievor reported to Mr Guest, who reported to Mr Conacher A management decision had been made to staff the regional offices on a secondment basis first, and to hold permanent competitions later Approximately fifty applications were received for the Ottawa position Mr Conacher was part of the selection panel that hired the grievor, and he testified about the -m-a-ny reasons why he, and the other panel members, ------ --- 59 , reached the conclusion that the grievor should get the job What impressed Mr Conacher the most about the grievor was his passion for issues of central concern to the OPCC. At the grievor's request, Mr Conacher contacted one of the grievor's previous supervisors for a reference He accepted the grievor's explanation that his current supervisor could not be relied on to give him a fair assessment. It was made clear to the grievor at the interview, and the job advertisement said as much, that the position was being offered on a secondment basis only The grievor was advised that he was the successful applicant, and he was invited to Toronto to meet with the Commissioner In the spring of 1991, the Rittersporn and Boreham incidents came to Mr Conacher's attention Mr Conacher testified that he did not, at that time, see either incident as sexual harassment, and he noted that he was advised that Ms. Rittersporn had put the grievor "in his place" He noted that Ms. Boreham had not complained about either incident. Mr Conacher was also aware that the Toronto staff was something of a clique, and, since Ms. Rittersporn had put the grievor "in his place," he was concerned that invoking some formal response would not assist the grievor in integrating into the workplace On July 25, 1991, Mr Conacher first became aware of problems in the Ottawa office He received a telephone call from Ms. Cohl, who, in her meeting with Mr Beaudoin, had been advised of the real reasons why Ms Delorme-Leclair ended her secondment after a matter of weeks That event caused Mr Conacher some concern, and he was also aware that the reporting structure in the Ottawa office was problematic. Both the grievor and the intake officer formally reported to supervisors in Toronto, but the grievor was acting as if he supervised the intake officer Even before Mr Conacher 60 'f' received the call from Ms. Cohl, he had intended to travel to Ottawa to discuss these matters Ms. Cohl's July 25, 1991, telephone call changed matters significantly, and the next day, Mr Conacher received a lengthy memorandum from Ms. Cohl setting out what she had learned. In the meantime, Mr Conacher consulted with Mr Clendinneng, reviewed the OPS Manual of Administration, and informed Mr Lewis Mr Conacher testified that he was aware that there were a number of options available to management in situations of this kind, but he was also of the view that the allegations were sufficiently serious for counselling not to be the appropriate managerial response Mr Clendinneng recommended an investigation, and the OPCC agreed with that recommendation While Ms. -Malyon's interim report is headed "Sexual Harassment Complaint from Mark Conacher," Mr Conacher insisted that he never filed any complaint - the complaint was filed by Ms Delorme-Leclair on August 9, 1991 In the meantime, Mr Conacher advised the grievor that certain allegations had been received A t that time, the grievor informed Mr Conacher that he had a tape Mr Conacher testified that he did .not pay any attention to the remark at the time A previously scheduled meeting with the grievor took place on August 1, 1 991 According to Mr Conacher, after advising the grievor that allegations of sexual harassment had been made, the grievor stated, "If I get through this, I'll be so damned careful, II adding that he would "not do anything like this" This puzzled Mr Conacher, as he had not said anything about what the allegations were Later on in the meeting, the grievor told Mr Con-aclier tha-t the investigator's job was the best one he had 61 ., ever had, that he had been victimized in the past, and that he would not do anything to victimize someone else He also stated that he could not understand the complainant's motive -- After receiving and reviewing Ms Desjardins' report in late January 1992, Mr Conacher contacted the grievor on Monday, February 3, 1992, in order to schedule a meeting on Wednesday, February 5, 1992 A copy of the report had previously been sent to the grievor's lawyer At no time prior to thiS meeting did the grievor, or anyone else, contact the OPCC to request an adjournment. The grievor did call to ask if his lawyer could attend the meeting, and he was informed that he could. Mr Conacher assumed that Mr Ages was still acting on the grievor's behalf The meeting occurred as scheduled, and Mr Conacher's version of events was completely consistent with that earlier testified to by Mr Lewis Moreover, Mr Conacher's notes of the meeting are consistent with those taken by Mr Le~is. By and large, the grievor denied every allegation made against him by Ms. Delorme-Leclair, and similarly rejected various statements attributed to Ms Hutchinson. Mr Conacher testified that he had told the grievor about the Rittersporn and Boreham incidents the prevIous fall The allegation that the grievor had refused to allow Ms Delorme-Leclair and Ms Hutchinson to speak French in the office was, however, completely new Mr Conacher told the Board that one additional investigator had previously assisted the grievor and that he was reassigned to these duties Arrangements were also made for another investigator to come to Ottawa after the February 5th meeting Mr Conacher believed that no matter how that meeting concluded, there was likely to be some upset, and that it made 62 -, sense, from an operational point of view, to have investigators in place and ready to continue important ongoing investigations Cross-Examination of Mr. Conacher Mr Conacher was asked a great many questions in cross-examination. It should be noted at the outset that Mr Conacher was asked many of the same questions earlier addressed to Mr Lewis. Mr Conacher's evidence, with respect to these questions, mirrored Mr Lewis's in every material respect. Since Mr Lewis was the decision-maker, it would serve no useful purpose to include a review of this part of Mr Conacher's evidence in this award, particularly the questions and his answers with respect to the conduct of the February 5, 1992, meeting and the conclusions they reached Mr Conacher agreed that the fact that the grievor was a black man was an important factor in his selection Mr Conacher, because of his many years of experience In race relations, was well aware of the benefits to be achieyed by employing persons with different backgrounds and different approaches. Mr Conacher did not believe that the Boreham incident constituted sexual harassment, and he reached this conclusion because of the way the incident was relayed to him; he understood that the grievor had directed his comments to the group as a whole, not simply to Ms Boreham Besides, no complaint was made Ms. Rittersporn had handled her incident her own way In retrospect, Mr Conacher wishes that he had raised both incidents with the grievor Had he understood that the incidents constituted sexual harassment, he would have contacted the sexual harassment coordinator A copy of the employer's Sexual Harassment Policy was introduced into evidence, and Mr--eonacher's attention was drawn to a number of sections 63 .. indicating various employer responsibilities in the administration of that policy One of the employer responsibilities is to "address and resolve sexual harassment issues on an informal basis." Mr Conacher agreed that he did not do so in this case, and he noted that there was very little time betweef.l when he first heard about Ms Delorme-Leclair's allegations and the actual filing of her complaint. Mr Conacher did not make the decision to appoint an investigator before a complaint was received. He did believe, however, that the employer required further information and that fact-finding was therefore required He was not a trained investigator under the Sexual Harassment Policy; no one in his office was. That is why outside assistance was required to gather information, even if Ms , Delorme-Leclair ultimately decided against filing a complaint. Management still had a responsibility to act. Another one of management's responsibilities, as set out in that policy, is to inform the alleged harasser as soon as reasonably possible that a formal complaint has been filed Neither Ms Rittersporn nor Ms Boreham filed a formal complaint, and the grievor was advised of Ms Delorme-Leclair's allegations before she filed her formal complaint. While Mr Conacher did not believe that the Rittersporn and Boreham incidents constituted sexual harassment when he first heard about them, he reconsidered his earlier conclusions on learning of Ms Delorme-Leclair's allegations, and he informed Mr Clendinneng and Ms. Malyon about these earlier incidents Mr Conacher was concerned when he first heard that Ms Delorme-Leclair wanted to end her secondment assignment. He had earlier heard about some equipment problem, and he felt, without knowing all the details, that Ms Delorme-Leclair had not been in the job long enough to give it a chance He was also aware that the grievor was pushing Ms. Hutchinson for the - - 64 ,~ position He did not, however, follow through on his concerns after he learned that she was adamant about returning to her old job He was aware that some of the problems in reporting relationships may have been attributable to personnel changes taking place in Toronto In this context, it made some sense for the grievor to have signed the agreement terminating Ms. Delorme-Leclair's secondment; Mr Conacher was determined, however, to ensure that it did not happen again When Mr Conacher met with the grievor on August 1, 1 991, he had previously informed him that certain allegations had been made At this August 1 st meeting, Mr Conacher refused to discuss any specifics, since an investigation was under way Mr Conacher agreed that the grievor mentioned racism at this meeting, but testified that the grievor mentioned it in the context of having been himself the vi.ctim of racism in the past and _ so was not the kind of person to victimize others. Mr Conacher considered it to be his responsibility to ensure that the authorities, namely Mr Clendinneng, were aware of the different allegations, however, he insisted that he had nothing to do with Ms. Delorme-Leclair's decision to file a complaint. Mr Conacher did not take the grievor's statement at this meeting, namely, that henceforth he would be so "damned careful," as an admission of guilt. According to Mr Conacher, none of the investigators were provided with equipment for recording conversations What they were provided with was dicta phone equipment. Some time after learning that the grievor had taped Ms Delorme-Leclair, Mr Conacher sent all employees a memorandum indicating that there should be no recording of conversations without the other person's consent. In October 1 991, Mr Conacher received a copy of a memorandum prepared by ~ the grievor raising various concerns and 65 '. complaints In requesting that his secondment be extended into a permanent position, the grievor wrote "My apparent zeal and commitment may not have been fully recognized, and in fact because of my vulnerable situation I have had to face the most stressful experience of my life which was based on the bigotry of a past support staff employee 11 Mr Conacher did not pursue this allegation of bigotry, and he testified that one reason for not doing so was because it was made as part of a larger reference to the sexual harassment complaint which was, at that time, undergoing investigation Mr Conacher agreed that the OPCC could have sought a waiver of competition in order to confirm the grievor permanently in his position The grievor was given an opportunity to state his case, but the decision was reached to proceed with the original plan of ho.lding an open competition The recruitment process takes approximately three to four months Accordingly, plans for a permanent competition began to be made in January 1992, as the grievor's term was set to expire in April 1992 At any time, the OPCC could have cancelled the competition, on giving notice as provided for in the agreement. The fact that planning for the job competition had begun did not mean that the OPCC would not have sought a waiver had it been satisfied that it was a good idea to do so In addition to the outstanding sexual harassment complaint, management 'had other concerns, particularly one relating to a January 17, 1992 letter Mr Lewis received from an OPCC complainant suggesting that the grievor be permanently employed Also disturbing to Mr Conacher was a January 25, 1992, letter he received from the grievor referring, among other things, to his participation in a number of sensitive investigations and then requesting confirmation in his position The language and tone of this letter appeared threatening to Mr Conacher, for they suggested serious consequences if the .- 66 I" I grievor was not permanently confirmed, and he testified that he lost respect for the grievor as a result of it. After the grievor's secondment arrangement was terminated, a permanent competition was held The grievor applied for the job, but did not receive it. Mr Con3cher testified that the OPCC did not have performance concerns with the grievor; it was the other matters outlined in this award that prevented him from being considered for the position. Had none of these events occurred, the competition would still have taken place According to Mr Conacher, the grievor would not have been a "shoe in," but he would have been "hard to beat." The Union's Case Evidence of Archie Hurge The grievor testified on his own behalf, and he began his evidence by describing his background and experience He has a Master's degree in criminology from the University of Ottawa, and prior to beginning his secondment at the OPCC, he had seventeen years of experience as a probation officer The grievor explained why he did not, in 1 991, wish his supervisor to be contacted for a reference, referring to some of the difficulties he had encountered with hrm. The grievor was interested in the investigator position because he is fully committed to the objectives of the Police Services Act. He also felt that he had reached a point of impasse at the Ministry of Correctional Services, having been bypassed for promotion on a number of occasions. The grievor was surprised to learn that the position was on a secondment basis, and he was disappointed that he would not be receiving a salary increase He was- also. surprised to find that he would not be supervising I" 67 the intake officer, since Mr Lewis had informed him during their meeting that he was to be in charge of the Eastern Region office The grievor started work on April 15, 1991, and he testified that he received only minimal training and orientation One of the investigators did, however, suggest that he acquire a tape recorder, and also advised him that there may be occasions in which he would wish to tape conversations. The grievor requested a recording device, and was provided with one, understanding that it was to be used for the surreptitious recording of conversations The grievor was never given copies of the OPS Sexual Harassment Policy and the government's Directives and Guidelines, although some time after August 9, 1991, he was given a bulletin to post in the / office concerning the Sexual Harassment Policy No one has ever discussed the policy with him. From the outset, there was a lot of pressure associated with this new job The grievor was responsible for finding and renting an office, and in the meantime he had to work out of his home He had to rent furniture, and was involved in the selection of a temporary employee pending the filling of the intake officer position He was also required to give speeches and conduct other outreach activities, and that created additional pressures Ms Delorme-Leclair was not the selection panel's first choice for the intake officer position, the first choice turned the job down because she needed to work flexible hours, and they were not available in this position The second choice, Ms Delorme-Leclair, was accordingly offered the job, which she accepted. Her first day on the job was Monday, June 17, 1991, and the grievor-testified that they spent no more than ninety minutes together in the office before he left for Toronto The grievor told Ms. Delorme-Leclair when they met that morning that things would be wild, as - ~ ----- 68 " there was a lot to do, but that if she had any problems she should tell him. He also told her that he did not have any "hidden agenda, workwise or sexually" He told the Board that he is an up front person, and his comments generally reflect that fact. The grievor was feeling extremely pressured during Ms Delorme-Leclair's first morning at work because he was about to make his first presentation in Toronto For obvious reasons, he wanted it to go well The previous Friday, the grievor had completed a draft report. After reviewing that report, he decided to make some changes He gave the revised version to Ms. Delorme-Leclair and asked her to input the corrections and print the document. He then watched her walk to the computer and turn it on. It was obvious that something was not working, for Ms. Delorme-Leclair attempted to manipulate some wires This was all very surprising to the grievor, as Ms Hutchinson had not had any problems operating the computer Ms Delorme-Leclair then called Ms Hutchinson, but the problem still could not be corrected. The grievor testified that he then asked her to type the document on the typewriter, but that was not possible, since Ms Delorme-Leclair could not figure out how to turn it on The grievor assisted her in doing so, and the document was then typed. However, the spacing was all wrong The grievor testified that he did not get angry with Ms Delorme-Leclair during these events, nor did he object to her calling around for assistance Rather, he simply said to her that she had misled him about her computer skills. In a Human Rights Code complaint, the grievor states that he told Ms. Delorme-Leclair' "Surely you cannot expect the government to pay you $37,000 per year and you are unable to operate the equipment." The grievor then travelled to Toronto ---~-~- ~ --- - 69 " Either the next day or two days later, the grievor needed a document to be faxed to him immediately so he called Ms. Delorme-Leclair, who undertook I the task. The grievor remained in Toronto until. some time on Wednesday, i June 19, 1991, and then drove back to Ottawa He arrived at the office on the morning of the 20th, at which time he said to Ms. Delorme-Leclair that he was pleased about the way in which she had faxed the document to him when he was in Toronto He also said that if she had "screwed up" or "goofed up" the other day, she had "more than made up for it because Mr Lewis really wanted the document." To the best of the grievor's recollection, he was in the office on June 20, 1991, arid was in and out on Friday, June 21, 1991 At the end of Ms. Delorme-Leclair's first week of employment, the grievor formed the view that she was trying and appeared to be motivated, although she was slow with the typing The following week, the grievor was in and out of the office on Monday, June 24, 1991, and Tuesday, June 25, 1991 On Wednesday, Jur1e 26, 1991, the grievor was in Perth, and he then travelled to Srockville He was back in the office on Thursday, June 27, 1991 On Friday, June 28, 1991, a member of the public came in to file a complaint. Ms Delorme-Leclair then went on vacation. Turning to Ms Delorme-Leclair's complaint, and to Ms Desjardins' report, the grievor was asked for his response to each of the allegations The grievor testified that he never asked Ms Delorme-Leclair anything about her husband or his common-law wife The only time he ever had a personal discussion with her involving family was when he asked her, over the course of lunch on Friday, June 28, 1991, where she was going on vacation It did not appear to the grievor that Ms. Delorme-Leclair was upset by this --- Jnquiry 70 ,~ The grievor testified that he never asked Ms. Delorme-Leclair who she went to lunch with All that he can recall is receiving one or two telephone calls for her while she was away The grievor may have been abrupt in answering those calls, because he was on the other line working on OPCC business The grievor formed the view that the caller was Ms. Delorme-Leclair's boyfriend, and when he gave her the message slip upon her return to the office he may have said "your boyfriend called." He testified that Ms Delorme-Leclair became very defensive about this remark. The grievor simply laughed and returned to his office He did not say that he was jealous The grievor testified that he never made any comments about Ms Delorme-Leclair's dress, hair, or about her social life Specifically, he never asked her if she had a "hot date," and he testified that that term was not in his lexicon Moreover, the grievor testified that he did not arrange for some complainant to come in over the noon hour so he could have lunch with Ms. Delorme-Leclair That is simply the way it worked out, and when they went for lunch he never suggested that dining with him was somehow preferable to dining with her sister On June 28, 1991, the grievor wished Ms. Delorme-Leclair well on her vacation, and suggested to her that she could, if she wished, take some of the equipment manuals with her to review while she was away He never suggested that she come in to the office during her holiday He had been concerned about the security of the manuals - there had been a theft in the building - and that is why he suggested that they be kept in his office The grievor was asked a number of questions about certain statements I attributed to Ms. Hutchinson by Ms. Desjardins The grievor testified that I he never told Ms Hutchinson that he did not wish Ms Delorme-Leclair in his 71 ., office or did not care for the way in which she wore her hair He does not recall saying that he did not like Ms Delorme-Leclair In Ms Desjardins' report, it is stated that at one point the grievor called Ms Delorme-Leclair a "dog" The grievor testified that he never made this remark. Rather, what happened was that after Ms. Delorme-Leclair returned from vacation someone in the building asked him, "What happened to Francine? The girl you have there is a dog compared to her II The grievor never mentioned this comment to Ms. Delorme-Leclair; he may, however, have mentioned it to Ms Hutchinson The grievor also never told Ms Delorme-Leclair not to speak French in the office He is very pro-French, and has made efforts over the years to learn to speak French The grievor pointed out that although this allegation is made in Ms Desjardins' report, he was never asked about it during the investigation When asked about the Boreham incident, the grievor testified that on his visits to Toronto, the other employees regularly asked him what he did in the evenings, and he adVised them that he usually returned to his hotel for a sauna and workout~ The grievor tended to avoid after-work socializing, but he would accept invitations to join a group of workers at a pub because of "esprit de corps." At some point one evening, he left the group at the pub, saying as he departed to no one in particular that he was on his way back to his hotel to take a sauna It is possible that he brushed Ms Boreham as he made his way by, but testified that if he did, he certainly did not do so intentionally The grievor testified that he never stared at Ms Boreham, asked her unduly personal questions, or said that he was going back to his hotel and an empty bed. He told the Board that the first time he learned the details of these allegations was when he read Ms. Desjardins' report. The 72 '. grievor first learned that an incident involving Ms Boreham had been alleged was when Ms. Malyon telephoned him from Toronto and advised him that Ms. Boreham and Ms. Rittersporn had raised certain allegations According to the grievor, the first time he met Ms. Rittersporn, he asked her if he could have a coffee, and she explained that he could, but that he would have to wash his own cup. After obtaining his coffee, the grievor was called into a meeting and he put his cup down The next morning, Ms. Rittersporn reminded him to wash his own cup. He put his briefcase down and went into the kitchen to do so He testified that he apologized to Ms. Rittersporn and explained that he had been called into a meeting Ms Rittersporn then asked him if he had any interesting cases, and he told her about a case he had involving a police officer charged with a sexually related offence The purpose of raising this matter with her was to get her feedback on the case, which was discussed in the most general terms At no time did the grievor ever say that he was "sidetracked" by Ms. Rittersporn's "amazing beauty" What did happen, according to the grievor, was that Ms Rittersporn asked him if he knew some good restaurants in Toronto, adding that her stove was never used and that her boyfriend was complaining that he could not afford her Out of simple courtesy, the grievor told Ms Rittersporn not to worry because she was a gorgeous woman and would get a rich husband Ms Rittersporn smiled, and the conversation came to an end The grievor testified that he never asked Ms Rittersporn if she knew what fellatio was, and never advised her that he was lonely and would be returning to his empty hotel room and empty bed With respect to Ms Hutchinson, the grievor testified that he did not, as she had alleged, -share~ any personal information with her respecting an 73 'J' extramarital affair in which he was engaged He did tell Ms Hutchinson that a woman visitor to his office was his girlfriend, but he did not tell her, again as she is reported to have advised Ms Desjardins, about sexual encounters at his cottage The grievor testified that he never told Ms. Hutchinson that he was fantasizing about her while they were on their way to a restaurant. He did tell her that they had good chemistry The grievor first learned that Ms Delorme-Leclair did not wish to return to work a couple of days before her scheduled return. He told the Board that Ms. Hutchinson advised him that she had been in contact with Ms. Delorme-Leclair, who had informed her that she did not want to work for a black man, that the job was not worth the extra money The grievor testified that he was astounded by this information, and decided to telephone Ms. Delorme-Leclair to learn what was going on When Ms. Delorme-Leclair left on vacation, the grievor thought that their parting was an:!.iable, but given the information he had just received, he realized it was not. He therefore decided to tape the conversation, and testified that this was the first time he had set up the recording equipment earlier provided to him. The grievor testified that he taped the conversation because he felt vulnerable He had been alone in the office with Ms. Delorme-Leclair, and he had no witnesses to support his version of events The grievor never made any seGret about having taped this conversation, and testified that as soon as he heard about the complaint he told Messrs Conacher and Guest that he was not worried because he had a tape Mr Guest then told the grievor that he should not worry, and suggested that he carry on with his work. Mr Conacher did not respond to the comment about the tape. In September 1991 the grievor gave a copy of the tape to Ms. Desjardins I 74 I I " After the taped telephone conversation, Ms. Delorme-Leclair returned to the OPCC on Monday, July 21, 1991, for two more days. At that time, the grievor explored with her whether she really wished to go back to her previous position, and she insisted that she did Ms Delorme-Leclair asked the grievor to draft a letter terminating her secondment, he did so, and also advised the OPCC in Toronto about these developments. Although Ms. Delorme-Leclair could have left the office immediately after signing the agreement, she agreed to stay on for two days to assist with the backlog For some reason - the grievor did not have an explanation - the document ending the secondment is dated July 16, 1991 On Tuesday, July 23, 1991, Ms Hutchinson suggested that they all go out for lunch. The grievor did not feel any animosity for Ms. Delorme-Leclair, and even though he was very busy, he agreed to come along. The lunch was pleasant; at the end of the day, Ms Delorme-Leclair entered the grievor's office, they shook hands, and she left. The grievor did not know that there were any problems until Mr Conacher mentioned it to him; this discussion was soon followed by a telephone call from Ms Malyon. According to the grievor, when Ms. Malyon telephoned him, she requested an appointment. The grievor asked to see a copy of the complaint, and was advised that no complaint had yet been filed by Ms Delorme-Leclair, but that she was not the only one This information was extremely alarming Soon thereafter, Ms. Malyon advised the grievor that she had to withdraw from the investigation because her husband was ill. Around this time, according to the grievor, Mr Conacher and another OPCC official travelled to Ottawa and informed the grievor, for the first time, that the intake officer would be supervised from Toronto, not by him as he had previously understood to be the case The grievor was concerned that this change in reporting relationships had been made because of the existence of the 75 .. complaint. When the grievor asked Mr Conacher -for information about the allegations, he was advised that the matter could not be discussed because it was under investigation The grievor felt abandoned, and was troubled by the absence of moral support, even if he had made a mistake The grievor felt shocked when Mr Lewis refused to speak to him about these matters The grievor was never given a copy of Ms. Malyon's interim report. The grievor did, however, write Ms Malyon a letter, dated August 19, 1991, after being advised that she had been appointed to investigate Ms Delorme-Leclair's complaint. This letter makes no reference to racism as an underlying explanation for Ms Delorme-Leclair ending her secondment or for her filing a complaint. As has already been establisbed, Ms. Hutchinson was terminated after the OPCC in Toronto became aware of her criminal conviction for fraud. Ms Hutchinson had been scheduled to travel to Toronto in early September for a training course when she advised the grievor of this conviction The gnevor felt that Ms. Hutchinson should have previously disclosed this information to him The two of them. had worked well together, and he was very pleased with her overall performance Nevertheless, he realized that he had to bring the conviction to the attention of his superiors, and he called Mr Guest at his cottage He told him that he believed in rehabilitation and that he "liked the girl" Ms. Hutchinson's Toronto trip was cancelled. The grievor, however, went to Toronto, and when he was there, he found out that Ms. Hutchinson's employment had been terminated When the grievor next spoke to Ms. Hutchinson, she indicated her disappointment about how matters had turned out. When the grievor returned to the Ottawa office, there was a note indicating resentment. The grievor called her and explained that he had had nothing to do with the termination decision. I 76 I" Prior to leaving for Toronto, the grievor had taped a conversation with Ms. Hutchinson, and that tape was turned over to Mr Lewis at the meeting held on February 5, 1992 According to the grievor, he felt vulnerable in the aftermath of learning about Ms Hutchinson's criminal record, and wanted a tape recording to protect himself in case Ms. Hutchinson later alleged that he knew about her record from day one In retrospect, the grievor is glad that he taped the conversation, as doing so was justified and he has "no apologies" to make In due course, the grievor and his lawyer, Mr Ages, met with Ms' Desjardins By this time, the grievor had received a copy of Ms. Delorme-Leclair's complaint. The grievor found the meeting disturbing for a number of reasons It quickly became apparent to him that Ms. Desjardins was not making notes of eyerything he said Towards the end of the meeting, Mr Ages gave Ms. Desjardins a copy of Ms. Hutchinson's August 29, 1991, voluntary statement, commenting as he did about the motivations obviously underlying the filing of a formal complaint. According to the grievor, Ms Desjardins accepted the original, left the room to secure a copy, and then returned the original to Mr Ages. The grievor is absolutely certain that a copy of it was provided to Ms Desjardins The grievor may have also provided Ms Desjardins with a letter he had written to Mr Ages dated September 10, 1 991, and he testified that Ms. Desjardins may have also copied that letter (which, in her evidence, she said she did, pointing out that she wrote on the back of the copy she took that it was provided to her by Mr Ages on September 27, 1991) The September 10, 1 991, letter raises a concern that the complaint may have been filed because of "Racial prejudice against me as a supervisor in light of her racist comments to Francine Hutchinson, when she indicated that she wanted to return to her French boss. "-~- -- 77 ,~ Ms. Desjardins was also offered a copy of the grievor's taped conversation with Ms Delorme-Leclair Ms Desjardins was reluctant to accept it. There were no questions about the Rittersporn and Boreham incidents during the meeting, nor was it ever suggested to the grievor that he had refused to allow anyone to speak French, or that he had called Ms Delorme-Leclair a 11 dog II The grievor testified that the meeting lasted approximately sixty to ninety minutes On October 25, 1 991, the grievor wrote to Ms Desjardins, sending her a copy of the tape of his conversation with Ms. Delorme-Leclair The grievor was concerned that Ms. Desjardins had not fully appreciated the fact that Ms Delorme-Leclair's racism had motivated her complaint, and his October 25, 1 991, letter states: "On September 27th when you met with Mr Ages and myself I was completely forthright with you and provided you with a voluntary statement from a former employee Francine Hutchinson who worked in my office from the very beginning. It was Mrs Hutchinson who made me aware that Glsele Delorme-Leclair had spoken to her in general .- terms about her desire to return to the Courthouse, and at that time had made racist comments The tape I. am sending you as well as a voluntary statement provided by Francine Hutchinson to my legal counsel should clearly indicate that this complaint is malicious and rooted in racism, incompetence, and a face-saving mechanism." The grievor also referred to Ms. Delorme-Leclair's racism in his October 21, 1991, memorandum to Mr Guest. The grievor met with Ms Desjardins once At that meeting, Mr Ages indicated a desire to meet again before submission of the final report, and Ms. Desjardins agreed to at least one further meeting The grievor was accordingly surprised when Ms. Desjardins called him in January 1992 and -- 78 'f- curtly informed him that her report had been submitted. When the grievor asked for details, Ms Desjardins refused to provide them and then hung up The grievor concluded his evidence-in-chief by describing various difficulties that arose during his time at the OPCC, and he told the Board about his concerns with some of the treatment he had received He did not get the support he needed, and he referred to a number of statements and one exercise that he believes indicate this to be the case, in particular, he felt that Mr Conacher attempted to put him in his place. He believes that he should have been confirmed in his position, and that it was wrong for management to refuse to discuss the complaint with him, especially since it took so long for the investigator to issue her report. In the meantime, the grievor was working long hours on extremely volatile investigations In his view, the fact that he was close to completing one such investigation was an important reason in bringing his employment with the OPCC to an early end -- When the grievor, accompanied by Ms. Payne, met Messrs. Lewis and Conacher, he was in a state of shock. He could not believe what was happening to him, and he gave Mr Lewis the best explanation he could in the circumstances The purpose of producing the tape of his conversation with Ms Hutchinson was to demonstrate that he had done nothing wrong, and to illustrate his loyalty for the OPCC While he had had some indication prior to this meeting that a second investigator might be temporarily assigned to assist him, he had no idea that two more investigators were on their way to Ottawa, and this fact suggested to the grievor that the decision to terminate his secondment had already been made In any event, according to the grievor, Mr Lewis advised him, following a short recess, that he had lost his confidence--in him, that he believed that the allegations of sexual 79 " harassment set out in Ms. Desjardins' report had been proven, and that he was particularly concerned about the fact that the grievor had refused to allow employees to speaking French The grievor could not recall if Mr Lewis asked him about this when they first met. Mr Lewis then advised the grievor that he was ending the secondment. The grievor believes that the decision was unfair in its substance and in its execution One result of it - the fact that the contents of Ms Desjardins' report were published in the press - was to leave the grievor publicly humiliated and disgraced for something he never did Cross-Examination of Mr. Hurge The grievor was asked numerous questions in cross-examination He recalled his interview with Ms Desjardins, at which time he was asked for a response to many of the allegations already r~vjewed in this award He advised Ms. Desjardins that Ms. Delorme-Leclair was a pathological liar, and told the Board that he continues to believe this to be true Her racism, the grievor believes, is one of the factors that motivated her to file a complaint. The grievor stated that Ms. Hutchinson advised him on July 18, 1 991, that the reason Ms. Delorme-Leclair wished to end the secondment was because she did not want to work for a black man. The grievor therefore decided to call Ms Delorme-Leclair at home, and as he had already been advised by OPCC management to use the tape recorder when necessary to "cover his ass," he decided to create a permanent record of the conversation Why, employer counsel wanted to know, would the grievor feel it was necessary to "cover his ass" when it was Ms Delorme-Leclair who was acting With improper motivations? The grievor testified that when he called Ms. Delorme-Leclair, he did not know that she would later allege 80 " sexual harassment; Ms. Hutchinson had not reported this to him. She had reported the racist remarks and mentioned something about a personality conflict. It was because of the racist remarks that the grievor decided to tape the conversation. The grievor was asked why he never raised the real reason for Ms. Delorme-Leclair's seeking to end her secondment during their telephone call, and he testified that he did not do so because he does not "wear his colour as a badge" Besides, he wanted to find out where she was at, and what she had to say The fact that Ms. Delorme-Leclair made a racist comment would have been significant had she stayed on the job, the fact that she was leaving made it, at least at that time, somewhat less important. It was pointed out to the grievor that he was the one who used the word "sexual" in the taped conversation that followed, and it was suggested to the grievor that the fact that he did so suggested that Ms. Hutchinson had mentioned sexual harassment to him when she initially reported that Ms Delorme-Leclair did not intend to return to work. The grievor could not recall Ms. Hutchinson ever saying anything about sexual harassment, he was aware that women could make this type of complaint. When the grievor suggested to Ms Delorme-Leclair, during their taped telephone call, that she had got her "signals mixed up," he was referring to the suggestion that their problems were the result of a personality conflict. The grievor was also asked why, during this conversation, he repeatedly inquired whether Ms Delorme-Leclair had made an official complaint. He testified that he wanted to know whether she had a complaint against him, and his questions were directed at determining that fact. Even though the grievor knew that Ms. Delorme-Leclair was a racist, he enjoyed amiable-relations with her during her last two days on the job He -- 81 , even went out to lunch with her, and union counsel asked why he would dine with a racist. The grievor testified that, as a black man, he has had to work with a lot of racists There was no point making an issue out of it, since Ms. Delorme-Leclair was leaving At the time Ms Hutchinson reported these remarks to him, the grievor believed that she was telling the truth Over time, however, the grievor has come to wonder about Ms Hutchinson's truthfulness; after all, she failed to tell him about her criminal record in a timely way Moreover, there were a number of statements attributed to Ms Hutchinson in Ms Desjardins' report which were simply not true After the grievor received notice of the complaint, he consulted Mr Ages, and a great many questions were asked about the timing of their meetings and their discussions The grievor testified that he ip1mediately informed Mr Ages about the real motives underlying Ms Delorme-Leclair's complaint. Mr Ages, in turn, assisted the grievor in drafting his August 19, 1991, letter to Ms Malyon which refuted the allegations In that complaint. That letter made no reference to Ms. Delorme-Leclair's raCism, and the grievor - testified that he did not refer to it on his counsel's advice The grievor testified that Mr Ages suggested that the grievor focus on Ms Delorme-Leclair's incompetence, and that mention the matter of racism only if the issue escalated. The grievor could not specifically recall Mr Ages telling him to ignore the racial issue What he could recall was that Mr Ages thought that the matter could be quickly disposed of, and neither of them had any expectation that it would escalate in the manner in which it did It should be noted that a copy of a memorandum dated August 13, 1991, from the grievor to Ms. Malyon was discovered in Mr Ages's file This memorandum refutes Ms. Delorme-Leclair's allegations of sexual harassment. It makes no reference to racism as an underlying motive for the filing of her complaint. 82 I -f: It was on Mr Ages suggestion that the grievor obtained a voluntary statement from Ms Hutchinson. There is no reference to that voluntary statement in the grievor's September 10, 1991, letter to Mr Ages which was forwarded to Ms. Desjardins As already indicated, that letter concludes with the observation that Ms. Delorme-Leclair's complaint was based on "racial prejudice against me as a supervisor in the light of her racist comments to Francine Hutchinson, when she indicated that she wanted to return to her French boss" The grievor told the Board that he did not wish to write that Ms. Delorme-Leclair did not "wish to work for a nigger," and that is why he phrased the observation in the way he did. The grievor d.id not refer to the August 29, 1991, voluntary statement in his September 10, 1991, letter because he is not in the habit of repeating racist events he has experienced The grievor again insisted that Ms Desjardins was provided with a copy of the voluntary statement when she met with the grievor and Mr Ages on September 27, 1991 With respect to Ms. Hutchinson, the grievor testified that he was extremely - pleased with her work, and felt that she had made significant efforts towards rehabilitation following her criminal conviction Ms Hutchinson wanted the intake officer job, and the grievor hoped she would get it. While the grievor did not agree that he and Ms. Hutchinson discussed the possibility of her obtaining the full-time position prior to the time that Ms Delorme-Leclair started work, he did agree that when Ms. Hutchinson returned to fill in for Ms. Delorme-Leclair he made the comment, "Don't hold your breath, this one may stick. II According to the grievor, there was always a possibility of Ms. Hutchinson obtaining the job because Ms Delorme-Leclair held it only in an acting capacity After Ms Delorme-Leclair ended her secondment, Ms Hutchinson continued to work in the office, and a decision was made to allow her to compete for the 83 , full-time position The grievor testified that OPCC staff in Toronto had become impressed with her, and that this fact, along with his personal recommendation, led to the decision to open the competition to allow her to apply In the first week of September 1991, Ms. Hutchinson was scheduled to attend a training program in Toronto On August 29, 1991, however, she advised the grievor for the first time, during a general discussion about how competitions were run, that she had been convicted of fraud The grievor testified that it was a coincidence that her voluntary statement was dated that same day He said that she had been asked to make the statement several days previously, and had prepared it that morning The grievor assisted with some of the text, but with none of the substance That afternoon, around 4 00 pm., she broke the news to him about the fraud conviction. In the grievor's mind, Ms Hutchinson's preparation of the voluntary statement and his support for her efforts to obtain the full-time job had nothing to do with each other In response to a number of questions, the grievor insisted that he did not say anything to Ms. Hutchinson, following her disclosure, that would indicate to her that she had nothing to worry about. What he did tell her was that management in Toronto would have to make the final decision Following the disclosure, the grievor taped a conversation with Ms Hutchinson because he had come to make a "fair assessment of her personality" He did not like the fact that she had failed initially to disclose her criminal conviction, and he was concerned because it seemed to him that Ms. Hutchinson had some expectation that he could solve all her problems by "working miracles for her" Why, the grievor was asked, would she have expectations of this kind? The grievor could only speculate He 84 " had expressed his views about rehabilitation to her, and the expression of those views may have led her to believe that he could assist her Nevertheless, Ms. Hutchinson's employment was terminated When the grievor returned from Toronto, there was a note from her waiting for him which read "Thank you for betraying me." The grievor testified that he did not believe that he betrayed Ms. Hutchinson Rather, given his experiences with Ms Delorme-Leclair who left on vacation with everything seeming fine, but who had then returned to file a sexual harassment complaint, he formed the view that recording his conversation with Ms Hutchinson, in the aftermath of her confession, made considerable sense After all, who knows what she might say or do? The fact that she left the kind of note she did when her employment was terminated through no fault of his indicated to him that considerable caution in dealing with her was required. The grievor was not afraid of Ms. Hutchinson filing a sexual harassment complaint, but he did feel vulnerable because it was just the two of them in the office, and if she did make some complaint, it would be her word against his. This explained why he wished a recording of their conversation The grievor was asked a number of questions with respect to various comments attributed to him by Ms. Hutchinson in Ms. Desjardins' report. The grievor testified that he never discussed sexual encounters with Ms Hutchinson He did tell her that a visitor to his office was his girlfriend Why, the grievor was asked? "That's my business," he answered. He felt like telling Ms. Hutchinson that, and did not, in response to employer counsel's questions, wish to get into the details. It was a "flippant statement" and the grievor "had nothing more to say about it." When asked if he was trying to convey the impression that the visitor was his ~--_..._-- 85 -, girlfriend, he answered that he "said what he said." The grievor also testified that he does not have a cottage, he owns a trailer, and never said that he had sexual encounters at his trailer The grievor freely admitted discussing with Ms Hutchinson the "good chemistry" between them. He uses that term to describe his relations with various people, he also uses the term "positive strokes," because he feels that he has not received appropriate acknowledgement during his professional career, and wishes to ensure that other deserving people are appropriately acknowledged Neither of these terms was sexual in his use or his intent. The grievor testified that he went to a restaurant with Ms Hutchinson only twice, and that one time Ms Delorme-Leclair also came along The grievor never told Ms. Hutchinson that he was fantasizing about her He would not have said this because he was not fantasizing about her The grievor admitted telling Ms. Hutchinson that Ms Delorme-Leclair was a poor performer This was not an opinion, however; it was a fact. The grievor testified that Ms Delorme-Leclair took inordinate amounts of time to complete simple tasks. The grievor estimated that Ms. Hutchinson had to redo approximately 50 percent of Ms Delorme-Leclair's work after she went away on vacation, although he could not recall the exact work that had to be redone The grievor does not believe that Ms. Delorme-Leclair represented the office very well; he testified that he recieved reports that she was abrupt, and had observed her answering the phone with a flat, strident voice Moreover, someone asked him why he would exchange Ms Hutchinson for Ms Delorme-Leclair, and it was in this context that the comment was made that Ms. Delorme-Leclair was a "dog" The grievor insisted that he did not form his opinion that Ms Delorme-Leclair did not represent the office well simply on the basis of this one comment. He 86 -It formed that impression from his discussions with a number of people, and he noted that Ms. Delorme-Leclair had no knowledge of the Police Services Act. After Ms. Hutchinson's employment was terminated, the grievor did not speak with her again until after Ms Desjardins' report was released When the grievor first received the report, he felt anger towards Ms. Hutchinson because of some of the comments in it attributed to her The grievor was also angry about the fact that Ms Desjardins had not kept her promise to meet with him a second time before concluding her investigation and preparing her report. That report was submitted on January 24, 1992 When Mr Conacher called him either one or two days prior to the February 5, 1992, meeting, the grievor had had the report for only a couple of days. The grievor, who had retained new counsel, did not ask for an adjournment because Mr Conacher had made it clear to him that the meeting would be proceeding on schedule When the meeting began, Ms Payne asked for an adjournment, but Mr Lewis refused to grant one, saying, according to the grievor, "I'm having the meeting, you can have an hour or so." Instead of availing herself of this opportunity, Ms Payne agreed that the meeting could proceed The grievor testified that Mr Lewis ran the meeting in a perfunctory manner and hurried the discussion along Employer counsel thereupon reviewed each of the allegations set out in the report, and Invited the grievor to take as much time as he wished in giving his response There would be no point, however, in reviewing any of this evidence, because it does not change the grievor's evidence-in-chief in any material way In most cases, the grievor simply denied the allegations, and he agreed with the suggestion that even if an adjournm~_I:lt had been granted, he would still have denied the allegations. 87 -, Evidence of Murray Ages Mr Ages testified on the grievor's behalf A practising lawyer for more than twenty years, Mr Ages has known the grievor for a long time, and was retained by him on or about August 13, 1991 when he received a document setting out the grievor's response to Ms Delorme-Leclair's complaint. After reviewing th,is response, Mr Ages redrafted it, and a letter dated August 19, 1991, was sent to Ms. Malyon While Mr Ages was informed early in his discussions with the grievor that racism might have been an explanation for Ms Delorme-Leclair's complaint, he adopted the strategy of making it appear as if the grievor was representing himself, and also of waiting tQ learn more about the allegations against him before making a full disclosure of the information he had Mr Ages testified that it was his , experience as a criminal lawyer which led him to adopt this approach A meeting with Ms. Desjardins was scheduled for September 27, 1 991, and Mr Ages requested, and was promised, complete disclosure of all allegations against the grievor in advance of that meeting A t the meeting, the grievor answered Ms Desjardins' questions, and Mr Ages provided her with a copy of Ms Hutchinson's voluntary statement. He also informed her about the tape of the conversation between Ms Delorme-Leclair and the grievor, and later arranged for her to receive a copy Mr Ages referred to the grievor's October 25, 1991, letter which, he pointed out, made reference to her having been provided with a copy of the voluntary statement. Mr Ages testified that Ms. Desjardins undertook at their meeting to contact him before her investigation was complete in order to review any new evidence with the grievor Mr Ages called her on several occasions to find out how her investigation was proceeding Instead of Ms. Desjardins honouring her promise, Mr Ages learned that she had completed her 88 -e investigation and had submitted her report. Some time prior to this event, he had come to the realization that the grievor needed representation by an employment law specialist, and he held one or more informal discussions with Ms Payne with respect to her assuming this task. The grievor, along with Ms. Payne and Mr Ages met prior to the meeting of- February 5, 1991 Mr Ages prepared a statutory declaration in which he swears that he provided Ms Desjardins with a copy of Ms Hutchinson's voluntary statement at their meeting on September 27, 1991 Cross-Examination of Mr. Ages Mr Ages agreed that it was at his suggestion that the grievor generalized his letter to Ms. Malyon dated August 13, 199), and prepared his letter of August 19, 1991 Mr Ages also agreed that neither of these letters refers to racism as the motivation for Ms Delorme-Leclair's complaints, and conceded that it was possible that the first time he learned of this "- explanation for her actions was when he received a copy of Ms Hutchinson's voluntary statement. Notes were taken at Mr Ages's meeting with the grievor, and those notes refer to incompetence, not racism, as the motivation or explanation for the complaint. Mr Ages was not sure which meeting with the grievor the notes referred to, and he observed that part of his file was turned over to Ms. Payne He did, however, state that even if the grievor had mentioned that Ms. Delorme-Leclair was a bigot, he would not necessarily have written that down The fact that Mr Ages recommended to the grievor that he obtain a statement from Ms Hutchinson suggested to him that he must have known prior to obtaining that statement what Ms. Hutchinson had alleged Mr Ages was not aware that the grievor had some involvement in the preparation of Ms. Hutchinson's statement, and he told the Board that he would not have approved of this. Had he known that th_e grievor had assisted her, he would have called her himself to 89 -, review what she had written. Mr. Ages' records indicate that he met briefly with the grievor on I September 27, 1991, to prepare for the meeting with Ms Desjardins The records indicate that that meeting lasted for four hours. He testified, however, that he was not sure exactly how long they met. A document earlier intoduced into evidence indicates that the meeting was scheduled to begin at 2 1 5 p.m. It was not a short meeting, "it could have been a couple of hours or longer II Mr Ages believes that it ended after 4 00 p.m. Mr Ages has no notes of this meeting, and testified that he was surprised not to find any, as he usually takes notes at meetings of this kind. He definitely recalls, however, providing Ms Desjardins with a copy of Ms Hutchinson's voluntary statement, and testified that he did so as the meeting came to an end There was proof that he had done so, and Mr Ages referred to the letter of October 25, 1991, which referred to that statement. However, on further questioning, Mr Ages agreed that there was a "chance" that Ms Desjardins was not given a copy of the voluntary statement, but there was "no chance" that the substance of that statement was not communicated to her in the meeting Even assuming that Mr Ages had simply read the voluntary statement 'to Ms. Desjardins at the meeting, it was inconceivable to him that he would not have read those parts of it dealing with the racist motivations underlying the filing of the complaint. Mr Ages agreed that sometimes, in his practice, he will convey the gist of a witness statement without providing a copy of it. It was possible that this is what he did when he met with Ms Desjardins, although Ms. Desjardins was not the Crown, she was an impartial investigator, and he had, therefore, no reason not to provide her with the statement given what it contained .__._--~ --- ~ 90 -e According to Mr Ages, Ms Payne, and the grievor met on February 4, 1992 at 1 0 00 a m. In advance of that meeting, he provided Ms. Payne with a copy of Ms. Desjardins's report. When the meeting took place, Ms Payne expressed the view that she needed more time to prepare for the meeting with Mr Lewis scheduled for the following day Mr Ages had no idea why Ms Payne did not request an adjournment at that time Re-examination of Mr. Ages In re-examination, Mr Ages testified that it was his best recollection that he provided Ms Desjardins with a copy of Ms. Hutchinson's voluntary statement when they met on September 27, 1991, and that if he did not do so, he certainly conveyed the substance of that statement to her At this point in our award, it is appropriate to point out that employer counsel made clear his intention to cross-examine two union witnesses, Ms Hutchinson and Ms. Payne, with respect to the circumstances under which two documents, already introduced into evidence, were prepared The two documents are a statement from Ms. Hutchinson dated February 25, 1992, taking issue with various findings set out in Ms Desjardins' report to which were appended a copy of her August 29, 1991 voluntary statement, and sections of Ms Desjardins' report, and a letter from Ms Payne to Mr Lewis dated February 10, 1992, marked "personal and confidential, II setting out Ms. Payne's version of the meeting held on February 5, 1992, as well as some information Ms Payne had obtained from Ms. Hutchinson suggesting that Ms Desjardins had not accurately communicated Ms. Hutchinson's comments in her report. It should be noted that employer counsel made clear his intention, in the context of cross-examining about these documents, to attempt to ascertain the existence of any other documents, records, or materials pertaining to discussions between Ms Hutchinson and Ms Payne 91 .~ Union counsel objected to the proposed questions on the basis of privilege and relevance Relevance, of course, is a matter for the Board to determine It is fair to say that the questions relating to the credibility of a key witness in this case about extremely important matters under review more than met the test of relevance With respect to privilege, the Board asked the parties to submit written argument in support of their respective positions Lengthy written submissions were filed and carefully reviewed After considering the matter, the Board was unanimously agreed that while the communications between the grievor and Ms Payne were privileged, the same could not be said with respect to the communications between Ms Hutchinson and Ms. Payne The Board was also of the view, in the unique circumstances of this case where the grievor and Ms Payne were, in effect, - alleging some impropriety on the part of the employer in refusing to grant an adjournment request at the meeting on February 5, 1992, that it was entirely appropriate for Ms Payne to be cross-examined about her February 1 0, 1 991, letter, which she prepared and submitted to the employer and which relates, in part, to that request. We reached this decision for a number of reasons. It is well established that in order to claim privilege, communications must originate in a confidence that they will not be disclosed In this case, the documents at issue were not intended to be kept confidential The evidence establishes that there was every intention, when they were prepared, of bnnging them to the attention of the employer It is noteworthy, in this respect, that one of the documents is a letter from Ms Payne to Mr Lewis This letter was not prepared specifically in contemplation of litigation, although it was c.onceiy~!>_le when it was prepared that it might be used in that way It was - 92 .. not, however, kept confidential - it was mailed to Mr Lewis. There is no evidence establishing that the dominant purpose of this document was to aid in existing or contemplated litigation What evidence there is suggests that it was prepared to avoid litigation by persuading the employer to revisit its decision terminating the grievor's secondment. Similarly, there is no evidence indicating that Ms Hutchinson's February 25, 1992, statement and attachments originated in confidence An examination of the statement part of that document indicates that the material points found therein were referred to by Ms. Payne in her letter to Mr Lewis Moreover, in this case, Ms Hutchinson freely testified about her entire role in this affair and had, in fact, previously provided the information at issue in this case to Ms. Desjardins The evidence does not support the contention that she answered Ms Payne's questions with any expectation that her - replies would be kept confidential In fact, the opposite result was intended, indeed inevitable, given the circumstances in which the questions were asked It should also be pointed out that there is no relationship between Ms Hutchinson and Ms. Payne deserving of the protection of privilege Given that neither document originated in a confidence, and given that both documents were, in fact, voluntarily disclosed to the employer, privilege does not attach Had either document been prepared for the primary purpose of contemplated or existing litigation, it is most unlikely that they would have been submitted to the other side However, even assuming for the sake of argument that the documents in question were somehow privileged, we find that the privilege was waived By asserting the substance of Ms Hutchinson's subsequently signed statement in her February 10, 1992, letter -to- Mr Lewis, Ms. Payne was hardly in the position to assert later that 93 ., the content of her letter, and the materials upon which it was based, were somehow immune from examination as privileged communications Whatever privilege there might have been - and as already noted, we are not of the view that there was any - had been waived This conclusion is confirmed by the fact that these documents were introduced without objection during the course of these proceedings. We can see no reason why the authors of these exhibits, if called as witnesses, should be treated any differently from the authors of any other exhibits who are called to testify before the Board It would hardly be fair to allow these documents in, but to prohibit any questions about how, and upon what basis, they came to be made. It is important to point out, and this fact also Influenced our decision with respect to the scope of the cross-examination allowed in this case, that there was absolutely no evidence of any fishing expedition or other improper activity on the part of the employer in seeking to cross-examine both witnesses with respect to these matters - matters that we have .-- determined were relevant and were not subject to privilege (See generally Toronto Star Newspapers and Newspaper Guild (1993) 33 L.A C. (4th) 174 (Springate), a case with somewhat similar facts upon which we relied, in part, in reaching our result.) Finally, it should be noted that Ms. Payne, after being advised of our ruling that employer counsel could cross-examine her with respect to the circumstances surrounding the creation of the documents referred to above, informed the Board that she was complying with our order that she testify about the matters in dispute, but was doing so only on the basis of having been so instructed by the grievor and for the purpose of proceeding with and expeditiously completing this case - 94 -, Evidence of Janice Payne Ms. Payne testified that towards the end of January, 1992, she received a telephone call from Mr Ages requesting her assistance with the grievor's case On February 3, 1992, Ms Payne received a copy of Ms Desjardins' report, and a meeting between her, Mr Ages, and the grievor was scheduled for February 4, 1992 at 10 00 a m., but but did not take place until the following day Ms. Payne did, however, become aware on the 4th that a meeting with Messrs Lewis and Conacher was scheduled to proceed on the 5th. Ms. Payne accompanied the grievor to that meeting, which began at about 2 00 p.m. and lasted until 6 00 p.m. Before the meeting began, Ms. Payne explained that she had just been retained and had not yet had an opportunity to investigate the matter She was concerned about discrepancies between her client's version of events and the one set out in Ms. Desjardins's report. According to Ms. Payne, Mr - Lewis reacted with anger to her request, and insisted that the matter would not be put off He indicated that he had travelled to Ottawa specifically to deal with this issue, and that the meeting would, therefore, proceed Mr Lewis did agree, however, to provide Ms. Payne with some time to prepare if she required it. Ms. Payne testified that since the grievor was anxious to present his version of events, and she was not to be given an opportunity to conduct her own investigation, she allowed the meeting to commence The meeting began with Ms Payne expressing a number of concerns She pointed out that Ms Desjardins' report contained allegations that had never been presented to the grievor She indicated that the treatment in the De~i~rdins report of the Rittersporn and Boreham incidents went well 95 -, beyond the original complaint. The grievor was, however, given an opportunity to respond to all the allegations set out in the report. In some cases, he denied the allegations, in others he placed them in context. At some point, the grievor produced a tape of a discussion with Ms Hutchinson After determining that the tape belonged to the OPCC, Mr Lewis requested it and he played it. Ms. Payne also gave Mr Lewis copies of Ms. Hutchinson's August 29, 1991 voluntary statement, and some correspondence between Mr Ages and Ms Desjardins Mr Lewis was obviously unfamiliar with these documents. Ms. Payne pointed out that Ms. Hutchinson's voluntary statement explaining the real reason for Ms Delorme-Leclair's complaint had been given to Ms. Desjardins, but was never referred to in her report. Ms. Payne formed the view that the purpose of the meeting was to exchange - information She did not consider it a hearing, and initially felt that the meeting was going well Some time after receiving Ms Hutchinson's voluntary statement and the other documents referred to above, a recess was called lasting approximately forty-five minutes When Mr Lewis returned he stated that he had considered all the evidence and had reached the conclusion that the allegations of sexual harassment were true Mr Lewis then asserted that the grievor's conduct, which included surreptitious recording of conversations with two co-workers, constituted a fundamental and irrevocable breach of trust. He was therefore giving the grievor thirty days' notice that his secondment would be terminated, and that he would be consulting, as required, with the grievor's home department respecting diSCipline Ms. Payne formed the view that none of her representations had made any difference, and she wondered what the real purpose of the meeting had been In her view, the penalty that was imposed was completely inconsistent with the offences alleged and the goals and - 96 -.- objectives of the Sexual Harassment Policy Cross-Examination of Ms. Payne The reason Ms. Payne wished an adjournment was to conduct further investigations and, in that way, to prepare herself better to give the grievor advice Ms. Payne agreed that the grievor was, on March 5, 1992, given the opportunity to talk, however, in her view the opportunity was incomplete because she had .not been given the opportunity to conduct an investigation and in that way bring discrepancies in Ms. Desjardins' report to the attention of Mr Lewis Ms Payne did not speak with Ms. Hutchinson until several days after the March 5th meeting, and while she subsequently brought some of her concerns arising out of her interview with Ms Hutchinson to the attention of the employer, that was, in her view, a less satisfactory method of proceeding Employer counsel asked Ms. Payne numerous questions about her discussion with Ms. Hutchinson and about the background to the preparation of the two documents which, as noted above, became the issue of an interim order of the Board. Ms Hutchinson volunteered to Ms Payne, during the course of their conversation, that the grievor assisted her in the preparation of her voluntary statement. Ms. Payne could not recall if she asked Ms. Hutchinson exactly what kind of assistance was provided. Ms Payne understood from her discussion with Ms. Hutchinson that Ms Hutchinson had told Ms. Desjardins that Ms. Delorme-Leclair expressed the view that she did not care to work for a black man Ms Payne and Ms. Hutchinson spoke only once on the telephone, and met for the first and only time at these proceedings. As a result of the one telephone discussion, Ms. Payne realized that Ms Hutchinson's view of the grievor was completely different from that portrayed in Ms. Desjardins' report, and she brought the various , 97 .t inconsistencies to the employer's attention in her February 10, 1992, letter to Mr Lewis. Evidence of Francine Hutchinson Ms. Hutchinson, as has already been established, was a temporary employee hired through an agency pending the filling of the intake officer position by a member of the OPS on secondment. Ms. Hutchinson did not know the grievor.. before she was hired She first met Ms. Delorme-Leclair the week before Ms. Delorme-Leclair was scheduled to start work. After showing Ms Delorme-Leclair around the office, Ms. Hutchinson gave her her telephone number and invited her to call if she had any problems Ms. Delorme-Leclair's first day of work was June 17, 1991, and Ms. Hutchinson testified that she heard from her several times that day as Ms Delorme-Leclair struggled to get the printer working. On June 18, 1991, Ms Delorme-Leclair telephoned again, as she was having difficulties accessing computer files and working in Word Perfect 5 1 Ms. Hutchinson does not recall receiving any other telephone calls As scheduled, Ms. Delorme-Leclair went away on holiday, and as prearranged, Ms. Hutchinson returned to replace her in her absence On July 18, 1991, Ms. Delorme-Leclair called Ms. Hutchinson and advised her that she was having difficulties sleeping and did not wish to return to the OPCC job. According to Ms. Hutchinson, Ms. Delorme-Leclair expressed the view that the grievor did not like her, and that they had a personality conflict. i She also said that she missed her French-speaking boss because he made things easier for her Unlike the grievor, Mr Beaudoin did not, Ms Delorme-Leclair reported, pick on her Ms Delorme-Leclair advised Ms Hutchinson that she did not wish any trouble, all she wanted to do was to return to her old job There was no mention made in this conversation about - _.._ _~_ _.n_ _ 98 I -, sexual harassment. Ms Hutchinson immediately advised the grievor of this conversation In due course, Ms. Hutchinson learned that Ms Delorme-Leclair had filed a sexual harassment complaint against the grievor who asked her to prepare the August 29, 1991, voluntary statement. Ms Hutchinson could not recall exactly when Ms Delorme-Leclair advised her that she did not wish to work for a "black guy" It was either during the July 18, 1991, conversation, or it was the following Monday, when Ms Delorme-Leclair returned to work for two days Ms. Hutchinson drafted her voluntary statement, but she showed it to the grievor so he could proof it and correct any grammatical errors She then sent it to Mr Ages. The first time that Ms Hutchinson and Ms Delorme-Leclair met, the latter asked the former about the grievor Ms. Hutchinson reported that she told Ms Delorme-Leclair that she was lucky because the grievor was a wonderful person to work for At some later date, Ms Delorme-Leclair expressed the view that the grievor was "pushy and picky" about her work Ms Hutchinson was surprised "That can't be the same person," she said, since the grievor was "an extremely easy person to work for" During Ms Delorme-Leclair's last two days in the office, she expressed the view to Ms Hutchinson that there was too much work, and that she did not care for the grievor On Ms. Delorme-Leclair's last day at work, the three of them went out for lunch The atmosphere at the lunch, and in the office, was completely normal According to Ms. Hutchinson, the office was a disaster when she returned to fill in for Ms Delorme-Leclair while she was on holiday The filing was stacked up, the complaint forms that Ms Delomre-Leclair had completed 99 t were riddled with errors, and a number of files could not be located on the computer Around the same time that the grievor asked Ms. Hutchinson to draft the voluntary statement, she disclosed to him the existence of her criminal record And, as is already established, once the OPCC in Toronto learned that she had been convicted of fraud, her services were terminated Ms Hutchinson felt that the grievor had betrayed her, since she believed that he would be able to explain the circumstances of her conviction and outline the efforts at rehabilitation she had since made According to Ms Hutchinson, she was advised by the Toronto office that it was the grievor who wanted her services terminated Some time after her employment with the OPCC came to an end, Ms. Hutchinson was contacted by Ms Desjardins by telephone Ms Hutchinson formed the view that Ms Desjardins was mostly interested in her relationship with the grievor, and was much less interested about what was alleged to have transpired between the grievor and Ms Delorme-Leclair At some point in the conversation, referring to her August 29, 1991, voluntary statement, Ms. Hutchinson asked Ms Desjardins if she had her statement, to which she replied that she did With respect to Ms Desjardins' report, Ms Hutchinson testified that some .~ of the statements attributed to her in that report were correct, but others were not. The grievor never said, for instance, that he did not like Ms. Delorme-Leclair or did not wish her to work in his office On one occasion, Ms. Delorme-Leclair had reported to Ms Hutchinson, the grievor had referred to her hair as "provocative," but she had no first~hand knowledge of his having done this The grievor never called Ms. Delorme-Leclair a "dog" l ~ 100 , What happened was that a police officer made this remark, which the grievor repeated to Ms. Hutchinson. Ms. Hutchinson never felt as if the grievor had harassed her, and the suggestion to that effect in Ms Desjardins' report was, she testified, completely misleading The grievor was the "nicest and friendliest boss" she had ever worked for Ms. Hutchinson never made any comment to Ms. Desjardins about the gnevor displaying "such behaviour in the office," as was claimed in the report. This was an example, of which there were several, Ms Hutchinson testified, of the report putting words in her mouth Upon reviewing the relevant sections of Ms. Desjardins' report, Ms. Hutchinson concluded that Ms Desjardins twisted a great many of her , remarks Some of her statements were, however, correctly reported Ms Hutchinson did tell Ms. Desjardins that the grievor was extremely complimentary and referred to "good chemistry" and "positive strokes." Ms Hutchinson did not take this type of comment the "wrong way" Ms. Hutchinson also told Ms. DesjardIns that the grievor was having extramarital affairs, because she surmised that he was, based on certain remarks he made One time, while driving to a restaurant, the grievor advised her that he was "fantasizing" about her Ms Hutchinson did not take offence at this comment, because the grievor would regularly joke about things Ms. Hutchinson did not appreciate Ms Desjardins' suggestion that she could also file a sexual harassment complaint based on what the grievor had said to her At no time did Ms. Hutchinson feel harassed, and she was shocked when she learned that Ms Delorme-Leclair had filed such a complaint. l ~--- - 101 -, Ms. Hutchinson is francophone, although perfectly bilingual She told the Board that Ms Delorme-Leclair informed her that the grievor had requested that French not be spoken in the office The grievor never said this to her; he would hear her speaking French with visiting police officers, and would also say "bonjour" to her in the morning Cross-Examination of Ms. Hutchinson As already noted, Ms. Delorme-Leclair called Ms Hutchinson several times during her first two days on the job. She did not call her again until July 18, 1991, when she phoned to indicate that she wished to return to her previous position Ms Hutchinson explained in a little more detail what these calls were about. Suffice it to say that Ms. Delorme-Leclair had some practical questions, which Ms Hutchinson answered In addition to advising Ms Hutchinson on one occasion that he was "fantasizing" about her, the grievor also told her that she looked good, was professional, and represented the office well He also complimented her clothing Ms Hutchinson could not recall when exactly a woman came to visit the grievor in the office What she could recall was the grievor advising her after she left that the two of them were going to spend the night at his cottage Based on the grievor's comments in this discussion, Ms. Hutchinson deduced that the grievor was having an extramarital affair When thegrievor informed Ms Hutchinson that a police officer had referred to Ms Delorme-Leclair as a "dog," he was smiling and thought it was funny It was also a way of complimenting Ms Hutchinson, as she benefited from the comparison ~~ -- - 102 -~ Ms. Hutchinson could not recall when exactly the grievor asked her to prepare her voluntary statement. Generally, she performed tasks the same day that she was requested to do so At most, she wQuld have been asked to prepare this document a day or two in advance of actually doing so It is . possible that it was the grievor who suggested that she state that it was a voluntary statement. The grievor corrected some of the English in Ms Hutchinson's first draft. He also reviewed the final copy, but not for the purpose of indicating his approval Rather, he did so simply to ensure that any grammatical errors had been corrected Ms Hutchinson testified that she might have been asked to pr~pare the voluntary statement at around the same time that she disclosed her criminal conviction to the grievor, but she said that she could not recall It was pointed out to Ms. Hutchinson that the grievor's diary indicated that he met with her late on August 29, 1991, to discuss a problem. Ms. Hutchinson agreed that it was more likely than not that she had already typed and signed the voluntary statement at that point. Ms Hutchinson insisted, however, that the one had nothing to do with the other In addition to supporting her efforts at obtaining a permanent position with the OPCC, the grievor also put in a good word for Ms. Hutchinson with a friend of his who worked at GMAC. Ms. Hutchinson secured credit and was able to purchase a new car Ms Hutchinson was advised by the OPCC in Toronto that the grievor had recommended that she not be offered a permanent position with the office, and that Mr Conacher concurred When informed that her services were no longer required, Ms Hutchinson became extremely upset since the grievor had led her to believe that her criminal conviction would not interfere with her job, owing to her wonderful performance. The grievor had told her that 103 " he would be explaining her position in Toronto, and that he did not thmk that her criminal conviction would stand in the way of her securing a permanent position This conversation occurred after Ms Hutchinson prepared her voluntary statement. In February 1992, Ms. Hutchinson was contacted by telephone and asked a number of questions by Ms. Payne Some time thereafter, Ms. Payne sent her a statement, which she signed and returned. Ms Hutchinson testified that she would have made changes to that statement had she thought they were necessary In Ms. Payne's notes of their conversation, Ms Hutchinson is attributed with saying that Ms. Delorme-Leclair was "very different." Employer counsel asked whether she had made this remark and, if so, what she meant by it. - Ms Hutchinson testified that she did not recall saying this, and if she said anything it might have been some comment to the effect that Ms Delorme-Leclair was finding the job somewhat different from her previous position Ms. Hutchinson was asked when exactly Ms Delorme-Leclair stated that she did not think she could work for a black man Ms Hutchinson believes that this comment was made on one of two possible occasions: either when they were standing outside the office one morning waiting to get in, or when they were at a Zellers having lunch The only time that Ms. Delorme-Leclair and Ms Hutchinson were in the office together, other than the day Ms. Delorme-Leclair stopped by for orientation the week before beginning work, was on July 22 and 23, 1991, when Ms Delorme-Leclair returned from I vacation and worked in the office for two days prior to returning to her old I job. It was possible, Ms Hutchinson testified, that they went_out_for lunch - 104 -, the day Ms. Delorme-Leclair stopped by for orientation The only other day that the two of them could have had lunch together was Monday, July 22, 1991, since the two of them, joined by the grievor, went out to lunch on Tuesday, July 23, 1991 Ms Hutchinson could not recall if Ms. Delorme-Leclair made the racist remarks on either of these occasions Ms. Hutchinson then suggested that the comment might have been made during a telephone conversation It was then pointed out to Ms. Hutchinson that there were a number of inconsistencies in her evidence with respect to when and where the racist remark was purportedly made Ms Hutchinson observed that several years had elapsed and this explained why she was somewhat vague in her response Wherever and whenever it took place, Ms Hutchinson responded to it, she now testified, by saying, "Come on, Gisele, he's a great guy to work for" In her view, Ms. Delorme-Leclair did not like the job and was looking for an excuse to get out. Ms Hutchinson was asked when she told the grievor about the comment, and she stated that she advised him of it after Ms. Delorme-Leclair was gone How long after, she did not know The grievor subsequently advised Ms Hutchinson of his July 18, 1991, conversation with Ms Delorme-Leclair, and also told her that he had taped it. She was not aware that the grievor had taped any of his conversations with her Re-examination of Ms. Hutchinson Ms Hutchinson was of the view that Ms Delorme-Leclair was extremely insecure and was concerned that she would not obtain the intake-officer position on a permanent basis. Ms. Hutchinson believes that Ms. Delorme-Leclair was looking for excuses to end her secondmentj and wanted to return to- h-er previous position, which was much easier to perform. ., 105 Employer Reply Evidence of Ms. Delorme-Leclair Ms Delorme-Leclair was called to given evidence in reply She testified that she did not have lunch with Ms. Hutchinson the day she came in for orientation as she had stopped by the OPCC office on her way to work. She arrived at 8 15 a.m. in order to attend a prearranged meeting with the grievor scheduled for 8 30 a m. When she arrived at the office, the door was locked Ms. Hutchinson, who had a key, arrived fifteen minutes later, and Ms. Delorme-Leclair met with the grievor as scheduled She then went to work. . Ms. Delorme-Leclair was asked about a "backlog" of work in the office when she left on vacation. That was not her recollection, and she described some of the tasks she performed during her first two weeks on the job A few tasks may have been outstanding before she went away, but she recalled that most of the work was done and that she had even had the time to reorganize the office and establish a filing system. Ms Delorme-Leclair - reiterated her evidence that she never said that she did not want to work with a black man, and had not said this while waiting outside the office, at Zellers, on the telephone, or at any other place or on any other occasion _.._--~ ._. 106 -, The evidence having been completed, the matter turned to argument. Employer Argument Employer counsel's argument was divided in three parts submissions with respect to the grievance alleging discipline without just cause, submissions with respect to the grievance alleging discrimination on the basis of race, and submissions with respect to the grievance alleging impropriety in the investigation process It is convenient to review each of these submissions in turn 1 Submissions with Respect to the Grievance Alleging Discipline without Just Cause In counsel's submission, this grievance raised the issue of whether the grievor had been disciplined without just cause by the termination, some six weeks before it was set to expire, of his secondment agreement with the OPCC. Needless to say, this grievance raises the issue of whether the grievor sexually harassed Ms. Delorme-Leclair and, if so, whether the discipline imposed in the result - the imposition of a formal reJ}rimand, which was linked, of course, to the termination of the secondment agreement - was unjust. Turning first to the matter of sexual harassment, counsel referred to the definition of harassment found in the Human Rights Code, which is mirrored to some extent in Article 27 10 1 of the Collective Agreement. This Article provides that. All employees covered by this agreement have a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee. Harassment means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. The concept of sexual harassment has received significant judicial 107 . attention, and employer counsel reviewed the line of cases that led to the development of the concept of "poisoned work environment." The leading Canadian case on that concept is Janzen v. Platy Enterprises (1989), 25 CCEL 1 (SCC), wherein former Chief Justice Dickson defined sexual harassment as follows' I I Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the working environment or leads to adverse job-related consequences for the victims of harassment (at 33). As noted above, sexual harassment has been defined to include conduct that is known, or ought reasonably to have been known, to be unwelcome What "ought reasonably to have been known" is obviously a key issue to be determined, and counsel reviewed various tests that assist in making this determination. Ultimately, what "ought reasonably to have been known" will have to be determined by an examination of the facts and the context of a particular case Some comments and activities will, however, following the appiication of an objective assessment, admit no explanation other than that "they ought reasonably to have been known" to be unwelcome conduct of a sexual nature that detrimentally effects the working environment or leads to adverse job-related consequences for the victim of harassment. In the instant case, counsel took the position that the grievor began to sexually harass Ms Delorme-Leclair even before she started work. Counsel reviewed the events and discussions that took place at the orientation session held the previous week, and then canvassed in some detail the various exchanges that occurred during Ms Delorme-Leclair's two weeks on the job In the employer's submission, the grievoris management skills clearly left a lot to be desired More importantly for ---- ------~~.- 108 -, the purposes of this grievance, however, were the comments that the grievor made of a sexually harassing nature A number of such comments, counsel argued, were clearly made It was established in the evidence, in counsel's submission, that the grievor made a comment about the way in which Ms Delorme-Leclair was dressed and that he inquired whether she had a "hot date." He told her, on one occasion, that her hair looked "provocative," and he asked questions about her family status, which included requesting a description of Ms Delorme-Leclair's estranged husband's common-law wife, followed by a suggestion that Ms. Delorme-Leclair was waiting for the common-law wife to leave so that she could get her husband back. Other comments of a sexually harassing nature included the grievor's statement to Ms. Delorme-Leclair, on her return from lunch, that her "boyfriend" called This unsolicited and incorrect comment, counsel observed, was followed by the ,grievor making the statement that he was "jealous." Finally, the grievor suggested to Ms. Delorme-Leclair that dining with him was preferable to dining with her sister (when Ms. Delorme-Leclair had initially planed to have lunch with her sister but was required to cancel so she could attend a lunch-time meeting with the grievor), when Ms Delorme-Leclair did not respond, he repeatedly said, "Isn't it?" In the employer's submission, the evidence was absolutely clear that Ms Delorme-Leclair did not solicit or appreciate any of these comments, and that all these comments were either known to the grievor, or should have been known, to be unwelcome remarks of a sexual nature Counsel noted that these various remarks caused Ms Delorme-Leclair to feel uncomfortable, upset, and afraid. While away on vacation, Ms Delorme-Leclair continued to be troubled by these events, lost sleep, and 109 -~ eventually determined that she could not return to the OPCC position. Counsel reviewed the, grievor's evidence with respect to these comments and noted, as set out above, that the grievor, with relatively minor exceptions, denied having made any of these remarks Obviously, this case requires an assessment of credibility, and it was the employer's position that there was really little doubt about who should be believed Counsel observed that Ms Delorme-Leclair's account of events has been consistent from the time she first raised her concerns to the time when she testified in these proceedings. There was no reason to believe that Ms. Delorme-Leclair had exaggerated events, and counsel pointed out that had she been inclined to misrepresent events, she would have made more serious allegations than those raised in this case Ms. Delorme-Leclair, employer counsel argued, had absolutely no reason to make up a complaint, and her demeanour was that of a person telling the truth. In further support of the employer's submission that Ms Delorme-Leclair should be believed, counsel pointed out that it is often extremely difficult for harassment victims to come forward and file complaints To suggest that someone would do this without having suffered from sexual harassment would require, in the employer's view, strong evidence of a very significant motive to misrepresent. There was no denying the fact that the union had suggested two motives underlying the complaint. First, that Ms Delorme-Leclair was incompetent and did not wish her failure to perform the higher-rated position recorded on her personnel file And second, that she was a racist and was prejudiced against blacks In the employer's submission, there was absolutely no evidence supporting either of these theories. . -~---- -------- 110 -f There was, employer counsel argued, absolutely no evidence indicating that Ms Delorme-Leclair could not handle the job. While Ms Delorme-Leclair was not able to get the printer working on her first day in the office, this did not establish anything Certainly, it did not demonstrate that she could not perform the day-to-day functions of the position Additionally, Ms. Delorme-Leclair worked for only two weeks before ending her secondment. The grievor was away much of this time ") and was, accordingly, in no position to evaluate her competence and performance What evidence there was indicated that Ms. Delorme-Leclair did do the job. She also had time to reorganize the office files To be sure, the grievor referred to some problems with her work, but he never mentioned any of those problems to Ms. Delorme-Leclair What he did suggest to Ms Hutchinson was that there was every likelihood that Ms Delorme-Leclair would be returning to work and obtaining the permanent position. There was evidence, employer counsel observed, indicating that the grievor suggested to Ms. Hutchinson that Ms Delorme-Leclair would be coming back. These remarks, counsel argued, were hardly consistent with any assertion that Ms Delorme-Leclair was not competent to handle the requirements of the position It should also be noted that Ms Delorme-Leclair had received positive performance appraisals from her previous supervisor The union's second theory, supposedly explaining why Ms. Delorme-Leclair filed her complaint, was based on Ms Hutchinson's evidence that Ms Delorme-Leclair was a racist for allegedly having said that she "could not work for a black guy" Ms. Delorme-Leclair, counsel noted, has, at all times, categorically denied either making this comment or having this belief Counsel pointed out that Ms Delorme-Leclair knew, when she accepted the-position, that the grievor was a black man, and presumably if I 111 .f she could not work for a black man she would not have taken the job. In the employer's view, there were other reasons for disbelieving this particular union claim, the main one being that Ms Hutchinson was not a reliable witness It was worth bearing in mind that Ms. Hutchinson, who had a previous conviction for fraud and who was also extremely interested in obtaining the permanent intake officer position, could not remember when or where the comments were made This was somewhat odd Making the matter stranger still were the circumstances in which her voluntary statement came to be made The very same day that she told the grievor about her fraud conviction, just prior to her scheduled trip to Toronto for a training course, she prepared and submitted her voluntary statement allegedly receiving the grievor's assistance only with respect to style and form. The very same day that Ms Hutchinson signed her voluntary statement, she had a conversation with the grievor which led her to believe that her fraud conviction would not, given her rehabilitation and the grievor's support, stand in the way of her obtaining the intake officer position on a permanent basis. When she found out that she was being dismissed, she left a note for the grievor thanking him for "betraying" her These facts, in the employer's view, led to only one inference that a deal was reached - at least that is what Ms. Hutchinson understood - whereby Ms. Hutchinson would provide a supportive statement, and the grievor, in return, would assist her in her efforts to obtain the intake officer job While Ms. Hutchinson subsequently assisted the grievor by working with his counsel and testifying in these proceedings, counsel noted that when she was interviewed by Ms Desjardins in December 1991 she was still smarting from the betrayal What other explanation was there", -counsel 112 ., asked, for her advising Ms. Desjardins about the grievor's comments that he was "fantasizing" about her? What other reason was there to tell Ms Desjardins about the grievor's girlfriend and their activities at his cottage? Counsel noted that even the grievor expressed doubts about whether Ms. Hutchinson was someone who could be believed Employer counsel endorsed this remark, and went on to suggest that whatever assessment was made of Ms Hutchinson's credibility, it was clear from the evidence that the grievor was not someone who could be believed The grievor's evidence was replete with internal inconsistencies and was contradicted in several material respects by the evidence of Ms Delorme-Leclair, Ms. Rittersporn, Ms Boreham, and, with respect to several important points, Ms Hutchinson In adition, the grievor's demeanour was not that of a credible witness. The grievor, counsel also argued, had a strong motive to misrepresent . what had taken place. The grievor clearly wished to be permanently placed in the investigator's position If his version of events had been believed, his secondment would, most likely, not have been prematurely ended and he would have been the obvious front runner in any permanent competition that took place. Another reason for believing that Ms. Delorme-Leclair was telling the truth and the grievor was not was the similar fact nature of the Rittersporn and Boreham incidents, not to mention the evidence with respect to certain exchanges between the grievor and Ms Hutchinson, which counsel reviewed The fact that Ms. Hutchinson viewed the grievor's comments as complimentary was immaterial What mattered was that his remarks to her, including the suggestion that he was fantasizing about her on the way to a restaurant, and his actions in sharing details with her about his -extramarital affairs, were entirely consistent with the way he 113 , treated Ms Delorme-Leclair And, counsel argued, the fact of the matter was that these and other comments, all of a similar nature, were viewed by Ms Delorme-Leclair, Ms Rittersporn, and Ms Boreham as inappropriate, unwelcome, and harassing. In the employer's submission, there was other evidence tendered in these proceedings which led to a negative assessment of the grievor's credibility, and counsel referred to the conversation he taped between himself and Ms Delorme-Leclair on July 18, 1991 What possible reason would the grievor have, counsel asked, for recording that conversation if he was not concerned about Ms Delorme-Leclair filing a sexual harassment complaint? According to the grievor, Ms Hutchinson did not tell him on July 18, 1991, that Ms Delorme-Leclair felt sexually harassed and did not wish to return to work because of that. Accordingly, the only logical inference to be drawn, in the employer's view, was that the grievor recorded the conversation because he knew that a sexual harassment complaint could result. The tone of the conversation, as well as its content, were worth keeping in mind Counsel characterized the grievor's remarks as controlling, manipulative, condescending, and frightening to Ms Delorme-Leclair, and he suggested that it was easy to understand why she was so anxious to return to her previous position Was the Discipline Imposed Commensurate with the Offence? While the employer had the right to terminate the grievor's secondment arrangement at any time on thirty days' notice, the letter formally doing so identified the grievor's sexual harassment of Ms Delorme-Leclair as the factor leading to the termination of the arrangement and the imposition of a formal reprimand. Counsel argued that in assessing the appropriate penalty for the harassing conduct established in this case, the 114 -It Board should consider the seriousness of the conduct as well as the fact that the grievor has not admitted his misconduct. In the instant case, counsel argued that the conduct was serious, and suggested that the discipline that was imposed was quite modest given the nature of the offence All that happened to the grievor was that his secondment was ended ahead of schedule and a formal reprimand was placed on his file What could have happened was termination of employment. In these circumstances, counsel suggested that the penalty imposed should be upheld, and that this grievance should be dismissed 2 Submissions with Respect to the Gnevance Alleging Discrimination on the Basis of Race Article A of the Collective Agreement states' "There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined In Section 1 O( 1) of the Ontario Human Rights Code" In the employer's submission, there was no evidence of discrimination against the grievor, and counsel referred to various authorities setting out generally accepted definitions of discrimination in support of this submission Counsel also canvassed the legal tests found in many of the cases, indicating that the grievor has the onus of proving his allegations to be true, and setting out the requirement that the conduct complained of be viewed in an objective manner Turning to the facts of this case, counsel suggested that there was no evidence whatsoever supporting the assertion that the grievor was treated the way he was by the employer for reasons of race There was, --- -. ---- ~ 115 .~ counsel argued in anticipation of the union's claims, absolutely no evidence of direct or systemic discrimination What evidence there was, that of Messrs. Lewis and Conacher, was to the effect that their decisions were not influenced by the grievor's colour, but by his conduct. Although the grievor's race was once considered by the employer, that was at the initial hiring stage, when it was considered to be a positive attribute in terms of his filling the investigator position Race, and the possibility of racism, was also raised in this case by the union in its allegation that Ms. Desjardins deliberately failed to make reference to Ms Hutchinson's voluntary statement in her report. In counsel's submission, there was only one credible explanation for her failure to do so she did not receive a copy of that voluntary statement when she met with the gr~vor and Mr Ages on September 27, 1991 Ms. Desjardins took notes at this meeting, the grievor and Mr Ages did not. Ms. Desjardins marked the documents she received, and testified that she was not given a copy of the voluntary statement. While Mr Ages swore a statutory declaration that he gave Ms. Desjardins a copy of the voluntary statement, in his evidence he conceded that it was possible that he had not, but had, instead, consistent with his established practice in the representation of criminally accused persons, read from or referred to the document, but kept it in his file Employer counsel pointed out that it would have been absolutely impossible for Ms Desjardins to have had any expectation of concealing such a document had she received it. It would be obvious to anyone that she had suppressed the document, and it makes no sense that she would have attempted to do so given the scrutiny that her report would inevitably receive In all these circumstances, there was only one conclusion that could sensibly be reached: Ms. Desjardins was not given the voluntary statement at the meeting on September 27, 1991 '16 -f There was no basis, therefore, in the employer's view, to support any assertion that Ms. Desjardins had discriminated against the grievor on the basis of race Finally, counsel made some submissions about the union's allegations that Ms. Delorme-Leclair was a racist, and the assertion that this explained why she had made a complaint. It was extraordinary, counsel observed, that Ms. Hutchinson could not remember where or when Ms. Delorme-Leclair made the racist comment to her Indeed, at one point, Ms. Hutchinson suggested that the remarks were made even before Ms Delorme-Leclair started work. Equally extraordinary was the fact that Ms Hutchinson did not advise the grievor of this remark immediately after it was made The evidence suggested that the grievor was not aware of the comments whe~ he prepared a draft memorandum in response to notification of the Malyon Investigation on August 13, 1991 Moreover, there was no evidence that the grievor was aware of the allegations when he met with Mr Ages on August 16, 1991, and prepared, with counsel's assistance, a letter to Ms Malyon on August 19, 1991 The first record of the allegations is in Ms Hutchinson's voluntary statement of August 29, 1991, the timing of which, the employer suggested, raised many more questions than answers Ultimately, counsel submitted, the only evidence that could be believed was Ms Delorme-Leclair's absolute denial of ever having made the attributed remark. There was no evidence that she or anyone else was a racist or guilty of racial discrimination Accordingly, counsel asked that this grievance also be dismissed. ----~_. .-- -- --- 117 -t 3 Submissions with Respect to Allegations of Impropriety in the Investigation Process At the outset, employer counsel argued that this grievance was inarbitrable, and should be dismissed on that basis alone The grievance in relation to the investigation process states [I grieve a] violation of Article 27 10.3.2 in that the employer did not conduct their investigation pursuant to staff relations policy and that I was not provided with relevant documents relating to the investigation and further, I was not formally made aware of the substance of the complaint against me and further, this investigation was pecuniary in nature. Article 27 10 3 2 of the Collective Agreement states Where, at any time either before the making of a complaint or the filing of a grievance under Article 27, the Employer establishes an investigation of the complaint, or the employee agrees to the establishment of such an investigation, pursuant to any staff relations policy or other procedure of the employer, the time limits for the processing of the complaint or grievance under Article 27 shall be suspended until the employee is given notice in writing of the results of the investigation. The employer took the position that no reading of this collective agreement provision could lead to the conclusion that it was meant to -- provide a basis for grieving the fairness of an investigation such as the one carried out in this case Indeed, counsel took the position that nothing in the collective agreement conferred such a right, and that on this basis alone, this grievance should be dismissed Counsel referred to numerous authonties standing for the proposition that the only matters that are arbitrable are those that raise a dispute over the proper interpretation and application of the collective agreement. Accordingly, in the employer's submission, the Board had no jurisdiction to arbitrate a grievance alleging that the investigation into allegations of sexual harassment was unfair Assuming, however, for the sake of argument that the Board did hold that it had jurisdiction to arbitrate this '18 -, grievance, employer counsel argued that there had been no breach of any duty to act fairly, and he made some submissions with respect to the nature of that duty One of the key cases is the decision of the Supreme Court of Canada in Knight v. Indian Head School Division No. 19 (1990), 69 D LR. (4th) 489 In that case, the Supreme Court concluded that there "may be a general right to procedural fairness, autonomous of the operation of any statute, depending on the consideration of three factors which have been held by this court to be determinative of the existence of such a right" (at 499) Madam Justice L'Heureux-Dube held The existence of a general duty to act fairly will depend on the consideration of three factors: (i) The nature of the decision to be made by the administrative body; (ii) The relationship between that body and the individual; and (iii) The effect of the decision on the individual's rights (at 500) Applying this test to Ms. Desjardins' investigation, counsel argued that Ms Desjardins was not making a decision, but was engaged in a fact-finding process. Even if her report could be characterized as some sort of decision, it was a preliminary one at best, and did not, and could not, counsel argued, trigger a duty to act fairly Counsel also took the position that for any duty to act fairly, there must be something akin to an employment relationship between the parties. The actions of a non-decision-making independent third party could not, counsel argued, be contemplated as an action that could possibly result in the creation of a duty to act fairly ------~ -. 119 -f Finally, counsel argued that Ms Desjardins did not make any decision in respect of the grievor's job security or future employment with the Ministry However, even if Ms Desjardins did make any kind of decision, its impact was substantially reduced by Mr Lewis' involvement in the decision-making process Mr Lewis was the ultimate decision-maker, and he simply used Ms Desjardins' report as a framework for questioning the grievor during their February 5, 1992, meeting. The report itself did not result in the early termination of the grievor's secondment, his responses, as assessed by Mr Lewis, led to that result. Accordingly, and for the foregoing reasons, counsel suggested that the duty of fairness, assuming one exists, did not apply to Ms Desjardins and her conduct of the investigation With respect to the application of the test to Mr Lewis, the employer "acknowledged that, as the final decision maker, Mr Lewis' role in the decision making process is subject to a certain duty of fairness" (Employer Submissions, at 52) Employer counsel, however, took the position that the issue to be determined was "not whether Mr Lewis acted fairly from a procedural viewpoint, but whether he was correct in his con~_lusion" (Employer Submissions, at 53) Assuming, however, after applying this test that the Board still found that there was a duty of fairness and that it applied to the actions of both Ms. Desjardins and Mr Lewis, counsel argued that there had been no breach In counsel's submission, a review of the jurisprudence indicated that the content of the duty varied depending on the circumstances of each particular case. In some cases, a formal hearing may be required. In others, it will be sufficient simply to give a person the opportunity-to - 120 -, correct or contradict what was said against him or her Considering first the possible application of the duty to Ms Desjardins' investigation and report, counsel argued that with the exception of the allegation that Ms. Desjardins concealed Ms Hutchinson's voluntary statement, none of the allegations made against her were of a suffiCiently serious nature to constitute a breach of the duty of fairness It was true enough that the Rittersporn and Boreham incidents were not put to the grievor during the investigatory process, however, neither of these women had filed a complaint. They were simply witnesses who were interviewed by Ms. Desjardins. There was no doubt that the grievor was. fully aware of the nature of the complaints made against him, for Ms. Delorme-Leclair's allegations were detailed and the grievor was asked for specific responses. He was, therefore, in the employer's view, fully aware of the substance of the allegations made against him and he was given a full and fair opportunity to correct or contradict what had been said For the reasons already advanced, counsel again argued that there was absolutely no reason to believe that Ms. Desjardins deliberately concealed or misplaced the voluntary statement. It was, in the employer's submission, inherently improbable that an disinterested third party investigator would conceal information for unknown reasons It was also most unlikely that she received the document and then misplaced it. Even if she had, however, the inadvertent misplacing of evidence would not constitute a breach of the duty of fairness, if such a duty existed With respect to Mr Lewis, counsel argued that he did- not breach the duty Moreover, to the extent that there were any flaws in Ms Desjardins' investigatio~-and- report which resulted in the breach of the duty to act 121 -f fairly, those flaws were cured by Mr Lewis Counsel noted that Mr Lewis testified that he immediately recognized, on reading Ms Desjardins' report, that certain allegations, namely the Rittersporn and Boreham incidents and the French-language allegation, had not been put to the grievor by Ms Desjardins Mr Lewis accordingly arranged an interview with the grievor, and gave him a full opportunity to respond to these matters, as well as to every other detail of Ms. Desjardins' report. This meeting, in counsel's view, met any requirement of the duty of fairness A full-scale administrative hearing was unnecessary All that was required in this particular case was that the grievor be given the opportunity to respond to the allegations made against him. While the grievor's counsel requested an adjournment at the start of the meeting, denying that request did not, in the employer's view, breach any fairness obligation The grievor's counsel could have requested the adjournment in advance Moreover, Mr Lewis testified that he would have adjourned the meeting once it began had he been satisfied that there was cause to do so Learning of the existence of the voluntary statement did not, in Mr Lewis's view, constitute cause, for as he explained in his evidence, he quickly came to the conclusion that nothing Ms Hutchinson said could be believed He also concluded that Ms. Desjardins would not have concealed that document, and this, too, was a factor he considered in deciding not to grant the adjournment request. In support of his assertion that the duty of fairness was not breached, counsel referred to Masters v. Ontario, [1994] 18 0 R. (3d) 551 (Ont. Div Ct.) In that case, for which leave to appeal has been sought, Mr Masters sought judicial review of an investigation report that had been conducted pursuant to Ontario's Directive and Guideline for Sexual Harassment. --As in 122 oft the instant case, the final report contained new allegations that had not been presented to Mr Masters prior to the completion of the report, and it was submitted to the Divisional Court that this was both patently unfair and a denial of natural justice A copy of the final report had been provided to Mr Masters on October 7, 1992, and on October 15, 1992, he responded in writing, setting out various criticisms of the investigation process, but also denying the new allegations Mr Justice Adams found that there was no unfairness or denial of natural justice, since Mr Masters had been afforded the opportunity to respond in detail to the new allegations in writing, and later orally to the decision-maker There was no need, in the circumstances of the Master's case, for a trial, Mr Justice Adams stated, observing that lithe procedures adopted were adequately tailored to the distinctive nature of harassment allegations having regard to all of the circumstances" (at 592) Mr Justice Adams therefore concluded that the "requirements of the duty to act fairly in the scope of the employer-employee relationship in the case at bar were met" (at 593) Applying this principle to the instant case, counsel argued that the grievor had been fully informed of Ms Delorme-Leclair's allegations during the investigatory process and was given a full opportunity to respond to them. He was then given a second opportunity to respond to those allegations, as well as to the new allegations that had made their way into Ms. Desjardins' report, when he met with Mr Lewis Counsel argued that any defect was, in that way, cured. Accordingly, counsel also asked that thiS grievance be dismissed -------.. -----~ ~ -----...-- 123 .~ Union Argument In the union's submission, all three grievances should be allowed, and union counsel began his remarks by reviewing some of the background to the case According to union counsel, this case was really about the mistreatment the grievor received - from even before his first day on the job. Counsel referred to the interviewing process, to the "clannishness" he enountered on his visits to Toronto, to the failure of management to notify him in a timely way about the Rittersporn and Boreham allegations and to supply him with adequate support, and to a myriad of other factors, including the completely unjustified allegations of sexual harassment filed, with the employer's assistance, if not at its instigation, by Ms Delorme-Leclair In the result, the grievor had, couns~1 submitted, been put through an ordeal No Sexual Harassment It was the union's view that there had been no sexual harassment in this case, and union counsel noted that the grievor has consistently denied the substance of Ms Delorme-Leclair's allegations However, even assuming for the sake of argument that the allegations were true, the union took the position that nothing the grievor said or did constituted sexual harassment. And counsel began this part of his submissions by referring to a number of authorities including Janzen v. Platy Enterprises (1989), 59 D L.R. (4th) 352 (SCC), R. v. Chase (1987), 37 C.C.C. (3d) 97 (SCC), Bell and Korczak v. Ernest Ladas and the Flaming Steer Steak House (1980) 1 C.H.R R D/155, Aragona v. Elegant Lamp Co. Ltd. and A. Fillipito (1982), 3 C.H R.R D/l109, Canadian Union of Public Employees and Professional Employees' International Union. Local 491 (1982), 4 L.A.C (3d) 385 (Swinton), Rabidue v. Osceola Refining Co. 805 F 2d 611 (6th Cir 1986), Watt v. Regional Municipality of Niagara and Alex Wales (1984), 5 C.H R.R 124 -f D/13972, Torres v. Royalty Kitchenware Ltd. and Franco Guerico (1982), 3 C.H R.R d/80S, Daigle v. Hunter (1989), 10 C.H.R.R 0/5670; Aavik v. Ashbourne (1990) 12 C.H.R R. D/401, Her Maiesty in Right of the Province of Manitoba v. The Manitoba Government Employees' Association (unreported decision of Teskey, April 24, 1990), Famz Foods Ltd. (Swiss Chalet) and Canadian Union of Restaurant Employees. Local 88 (1988), 33 L.A.C. (3d) 345 (Roberts), Canada Packers Inc. and UFCW. Local 114P (1991), 21 L.A C. (4th) 1 (Brown), Chu v. Persichilli (1988), 9 C.H R.R. D/4617, Hewes v. Etobicoke (City) (Ont. C.A.) Action No 207775/87, October 2, 1991, Hewes v. Etobicoke (City) (Ont~ C.A.) Action No Cl1291, unedited March 8, 1993, 0 C.A., A P Aggarwal, Sexual Harassment in the Workplace (Toronto' Butterworths, 1987), Hansen, J Report of the Bell Cairn Centre Enouiry (Ottawa January 1993), Sexual Harassment Claims of Abusive Work Environment under Title VII, and K.A. Kenealy, "Sexual Harassment and the Reasonable Woman Standard" (1992), 8 The Labor Lawyer 203 After reviewing each of these cases and academic articles in detail, counsel argued that nothing that the grievor said or did could be properly characterized as sexual harassment. In the union's submission, virtually every reported case dealt with allegations infinitely more serious than those in this case, and it was also noteworthy, in the union's view, that Ms. Delorme-Leclair never objected to anything that the grievor said Nor was there any evidence of sexual propositioning, retaliation for refusal to participate in sexual activity, or touching What there was, at its best, were a few questionable comments, and counsel suggested that they had, assuming for the sake of argument that they were true, been torn wildly from context and exaggerated in importance and impact to support the employel"'s-case In the union's view, the grievor's comments had more to 125 ., do with the fact that he was a tough taskmaster than with sexual harassment. And in this respect, counsel pointed out that it was important to ensure that ordinary discussions or comments not result in sexual harassment complaints These discussions and comments must, therefore, the union argued, be assessed according to an objective test. A "standard of reasonableness," counsel argued, referring to one of the cases cited above, is required, and he suggested that crude and insensitive remarks did not meet that test. Moreover, counsel took the position that a necessary precondition to any finding of sexual harassment was an established course of conduct, one that must leave the eventual complainant believing that exposure to that conduct was a condition of employment. There was, the union asserted, no evidence establishing this in the instant case Ms Delorme-Leclair never voiced an objection to thegrievor's remarks, and raising such an objection was, the union asserted, a precondition to any finding of sexual harassment. After reviewing various reported cases, the union also took the position that the comments complained about in this case, when compared with the evidence found necessary to support a Human Rights ! I complaint of sexual harassment, were insufficient, in and of themselves, to constitute sexual harassment and, furthermore, could not be properly characterized that way as they did not constitute a pattern of conduct, which was required Indeed, in examining some of the authorities referred to above, counsel suggested that the comments attributed to the grievor, even if believed, were actually relatively tame even when compared with various remarks found not to constitute sexual harassment in some of the reported cases - ._- -. 126 In support of its assertion that the necessary element of a pattern of conduct was absent in this case, counsel pointed out that all the comments alleged to have been made were said to have been made over the course of three days in Ms Delorme-Leclair's second and last full week of work. There was simply insufficient time, counsel argued, for any pattern of vexatious conduct to be established Nor was there sufficient time for Ms. Delorme-Leclair to conclude that these comments poisoned the work environment and had, in effect, become a condition of employment. Accordingly, counsel argued that there was no legal basis for finding that sexual harassment of the poisoned work environment type had occurred It was also noteworthy, in the union's view, that the grievor never received any instruction in sexual harassment. He was never told what he had done wrong; not by Ms. Delorme-Leclair, and not by the employer Moreover, he - was never given any assistance directed at correcting his future behaviour Indeed, after the complaint was filed, the grievor was repeatedly denied the opportunity to discuss it with management. Standard of Proof and Credibility In counsel's submission, it was true enough that the grievor's employment had not been terminated in the Ontario Public Service He had clearly, however, lost his job with the OPCC, and that termination, counsel argued, was without just cause Counsel took the position that the allegations in this case were serious, and, given their seriousness, the employer should be required to prove those allegations with clear, cogent, and compelling evidence In the union's view, the employer had not discharged this burden, and counsel suggested that Ms. Delorme-Leclair's evidence was inconsistent and ultimately unreliable When all the facts were properly assessed, and when the appropriate legal tests for determining credibility were properly applied, there was very little doubt but that the grievor 127 -. was a credible witness, and that his version of events should be believed The fact that the grievor denied many of the allegations, in the union's view, hardly made him an incredible witness Counsel noted that this job was the grievor's big chance, but that many things did not go well from the start. The grievor was introduced into a "clannish" atmosphere, and did not get the operational and other support he required. When Ms Delorme-Leclair filed a formal complaint against him, the gnevor felt alone and isolated It was hardly surprising, in these circumstances, that he became extremely wary Some of his actions, the union argued, were torn out of context. For example, the grievor was provided with recording equipment, but when he used it he was faced with Mr Lewis describing his having done so as extraordinary and reprehensible This was _completely unfair, in the unIon's submission, since members of management, specifically Messrs Conacher and Guest, were previously aware that the grievor had taped a conversation with Ms. Delorme-Leclair If there was a poisoned work environment in this case, counsel argued it was the one that was created by management for the gnevor, not by the grievor for someone else Counsel noted that no one in management would talk to the grievor about the complaint, although he was advised after it was filed about certain other incidents said to have taken place In these circumstances it only made sense for the grievor to become somewhat uncommunicative as the level of his discomfort increased These factors, the union argued, should be kept in mind in assessing the grievor's credibility in this case -- - 128 I -f In the union's view, there was far more reason to doubt Ms. Delorme-Leclair's credibility than that of the grievor Counsel noted that Ms. Delorme-Leclair could not recall exactly when and where the various comments were allegedly made Ms. Delorme-Leclair, the evidence established, was timid and insecure, so much so that she took an assertiveness training course In the union's submission, these characteristics resulted in difficulties when her job performance was criticized by the grievor Instead of feeling complimented when the grievor thanked her for successfully arranging the delivery of a fax, Ms Delorme-Leclair felt insulted Whatever could be said about the grievor's compliment and the manner in which he delivered it, the union took the position that it could not be characterized as sexual harassment. Even more imP9rtant, in the union's view, was the fact that Ms Delorme-Leclair's version of events changed over time At one point she said that the grievor asked her several times if she had a "hot date" Eventually, Ms Delorme-Leclair stated that the grievor asked her this question at least once A witness who cannot remember how many times exactly a certain statement of this kind was made did not, in the union's view, satisfy the burden placed on the employer of proving its case with clear, cogent, and compelling evidence Counsel noted other variations in the account given by Ms Delorme-Leclair in her evidence before this proceeding, and in her response to the grievor's Human Rights Code complaint. Furthermore, counsel suggested there were other reasons to weigh the evidence of Ms. Delorme-Leclair carefully He observed that she was hired as an intake officer, but did not wish to stay over lunch to do intake with a possible complainant. There was nothing wrong, in the union's view, with the grievor inviting Ms. Delorme-Leclair to join him for lunch- after the interview; nor was there anything improper with his 129 -, asking her questions about her vacation plans. Conduct such as this simply could not constitute sexual harassment, and Ms Delorme-Leclair's reaction in respect of it was indicative of her overreaction to events generally, and went directly to her lack of credibility in these proceedings There was also another important reason to disregard Ms. Delorme-Leclair's evidence, and that reason was the racism underlying her decision to file a sexual harassment complaint. Certainly, Ms Delorme-Leclair's statement that there were "cultural differences" was suggestive of improper motivation, and counsel noted that comments such as this, certainly in the context of this particular case, can only be seen as camuflage for distinctions based on race In the union's submission, the evidence established that Ms Delorme-Leclair did not initially believe that she had been sexually harassed; it was only after others in the system learned of her concerns that she was advised to file a sexual harassment complaint. It was also noteworthy, in counsel's view, that M~ Delorme-Leclair was actively encouraged to file a complaint by Mr Beaudoin, who reviewed the substance of her draft complaint before she filed it. In all the circumstances, the union took the View' that the complaint was inspired by Ms Delorme-Leclair's concern that she needed a defence to allegations from the grievor that she had not properly performed, and as a result of the encouragement of others This conclusion could only lead one, in the union's submission, to question her credibility overall The union also argued that the Rittersporn and Boreham incidents should not be given any weight, for they failed to meet the requirements necessary for introduction as similar fact evidence, and counsel reviewed 130 -fc a number of authorities on point. Counsel also took the position that neither of these incidents was helpful in assessing the credibility of witnesses in this proceeding. The grievor had explanations for both incidents and, in the union's view, the only thing that was noteworthy about these incidents was that the employer failed to follow its established policies in dealing with incidents of possible sexual harassment. In the union's submission, the evidence did not establish that the grievor engineered the termination of Ms. Delorme-Leclair's secondment. In the taped conversation, he offered to refer the matter to Toronto, and he also advised the appropriate OPCCofficial about Ms Delorme-Leclair's request to terminate her secondment. Ms. Delorme-Leclair was contacted by the OPCC, and it was significant that she did not, at that time, make any suggestion that sexual harassment had taken place Nevertheless, a complaint was subsequently solicited and filed - Counsel did not deny that there had been problems between the grievor and Ms Delorme-Leclair What had obviously occurred was that his over- zealousness in performing his position came into conflict with her timidity and insecurity The grievor may have lacked management skills, but what was important was that he was never given the opportunity to acquire them The relationship between the grievor and Ms. Delorme-Leclair got off to a bad start, and the event with the printer undoubtedly set the tone for the next tWQ weeks Ms. Delorme-Leclair, who had reason to be concerned about her job performance, and having concluded that she did not have the ability to do the job, understandably decided to return to her previous position In the union's view, she then became concerned about the grievor putting something negative on her 131 . personnel file, and thus responded receptively to a management suggestion that she had been sexually harassed It was hardly consistent for her to have felt sexually harassed, but to have still returned to work after her vacation was over The only inference that could be drawn in these circumstances, counsel suggested, was that Ms. Delorme-Leclair ended her secondment because of racism, and because she was not competent to perform the job. Seen in this context, the allegations of sexual harassment were obviously developed after the fact. Counsel suggested that there was nothing wrong with the grievor's recording a conversation with Ms. Delorme-Leclair The grievor did not try to hide his having done so; he told several people in management about the tape There was nothing illegal about what he had done, and there was no OPCC rule at the time prohibiting him from doing so Whatever the Board - chose to make of the tape, counsel urged the Board to remember that it had nothing to do with the issue before us - namely, determining whether sexual harassment had taken place Counsel concluded this part of his submission by pointing out that the purpose of discipline is rehabilitation, while the purpose of the sexual harassment policy was education, not punishment. In assessing the punishment that was imposed, counsel urged the Board to bear in mind that the employer ,had a responsibility to notify the grievor of the Rittersporn and Boreham incidents and had failed to do so The employer also had the option of dealing with the Delorme-Leclair complaint informally, but instead invoked an investigatory process that was way out of proportion to the subject matter of the complaint. Counsel suggested that .management breached its own policy in this case, and that factor, and the employer's failure, should be considered by the Board in its - 132 ,~ determination of whether the penalty the employer imposed was just. The Investigation and Report were Inadequate and Unfair Union counsel began these remarks by arguing that there is little doubt that the employer is bound by a duty of fairness. However, instead of treating the grievor fairly, the employer went out on a hunt for proof that the grievor had sexually harassed another employee, and closed its mind to evidence indicating that racism was the real reason for the filing of the complaint. Counsel also took the position that the employer breached its own Sexual Harassment Policy by not notifying the grievor of concerns that had been raised Accordingly, in the union's view, it would be completely inappropriate for the employer to rely on the Rittersporn and Boreham incidents for anything, given that it knew about these incidents but took no action with respect to them. Had the grievor been counselled at the time, counsel suggested that none of the other events would ever have come to pass. Instead, nothing was said until the employer received word that Ms Delorme-Leclair might have a complaint. In the union's submission, the evidence established that Ms Delorme-Leclair was actively encouraged by Mr Conacher and others to file a complaint. The deficiencies with the investigation, and the ensuing report, have been highlighted throughout the case, and were again reviewed. Counsel argued, very simply, that the manner in which the investigation was conducted was outrageous, and he pointed to Ms. Desjardins' evidence that she did not return to the grievor with new allegations because she had been told by a Mr Donio at Management Board Secretariat that there was no money for her to do so ~ --~-- .- - I ~ 133 Discrimination Based on Race It was true enough, counsel conceded, that the grievor had not requested an adjournment before the meeting with Mr Lewis on February 5, 1992 That being said, it was disturbing, in the union's view, that allegations of sexual harassment resulted in a six-month-Iong investigation, but when the grievor and his lawyer provided the employer with a document establishing that the sexual harassment complaint was racially based, that document, following an unsuccessful attempt to contact Ms. Desjardins, was summarily dismissed Why, counsel asked, did the employer never conduct an investigation into this aspect of the complaint? The answer, counsel suggested, was because the grievor was discriminated against on the basis of race. In the union's view, the only inference to be drawn was that the employer hired the grievor as a "safe black," but later had cause to re-evaluate that conclusion. This reevaluation led to some urgency in his discharge, for the grievor was coming close to completing a pending investigation (As noted - earlier in this award, the Board never heard any evidence remotely substantiating this claim concerning an event that transpired after Ms Delorme-Leclair's complaint was filed) This concern and others that counsel enumerated, including the pressure put on Ms Delorme-Leclair to file her complaint, and various operational issues that arose during the grievor's employment, resulted in the employer deciding that the grievor had to go, and, having made that decision, the union submitted that it acted with indecent haste and in a racially discriminatory fashion The facts of this case, in the union's view, admitted no other interpretation How, counsel asked, could Mr Lewis have reasonably come to the conclusion that Ms Desjardins had not received a copy of the voluntary 134 -, statement when he was told that Mr Ages and the grievor had provided her with it? The only way of doing so, in the union's view, was by developing an elaborate and unbelievable theory of quid (the voluntary statement) in return for a quo (support from the grievor for Ms Hutchinson's job application) Counsel suggested that the Board reject this theory and believe the grievor and Mr Ages, who were quite clear about what transpired at the meeting held on September 27, 1 991 While Mr Ages admitted in cross-examination that it was possible that he did not give her the document at that meeting, counsel suggested that that admission was more in the line of "anything is possible," and was not an admission that his recollection might be wrong The evidence of Ms. Hutchinson, counsel argued, was crystal clear Ms Delorme-Leclair told her that she did not wish to work for a black man The employer was advised that "bigotry" was involved when the grievor wrote Ms. Malyon on August 13, 1 991 When the grievor met with Ms ~., Desjardins in September 1991, his lawyer provided her with a copy of the - voluntary statement. Ms Desjardins was many things, but clearly she was not a qualified investigator, and counsel simply noted that in the conclusions to her report, Ms Desjardins stated that on the balance of probabilities it was not impossible to conclude that the grievor had sexually harassed Ms Delorme-Leclair This conclusion, and the principle it enunciated, was, union counsel suggested, ridiculous In the union's view, Mr Lewis came to the February 5, 1992 meeting determined to terminate the grievor, and he did not allow anything to get in the way of achieving that goal Counsel noted that replacement investigators had already been arranged Instead of understanding that the grievor had been through some very trying months during which no one --~ -- ----- 135 . would talk to him about what he was alleged to have done wrong, Mr Lewis inferred from the grievor's denials of various allegations that those allegations were correct. However, the grievor did not deny every event, he had explanations for some of them. Moreover, the grievor had reason to deny some of the allegations, because they were not true Why, counsel asked, was it improper or incredible for the grievor to deny having sexually harassed Ms. Delorme-Leclair? It was also extremely questionable, in the union's view, for Mr Lewis to I reject Ms Desjardins' report, but at the same time to use it to assess the grievor's credibility How could one possibly use a flawed report to I assess anything, counsel asked? Moreover, how could Mr Lewis reach any I conclusions by simply asking the grievor questions, but accepting as a I fact anything attributed to Ms. Delorme-Leclair in the report? Counsel noted that the grievor was visibly angry at the meeting; this only made I sense given that several serious allegations were set out in the report, but he had not been given the opportunIty to reply to them. Obviously, this I justifiable anger may have affected some of the grievor's responses to ! questions that Mr Lewis asked In the result, Mr Lewis' finding that the grievor was not credible was unfair, and, when all of the evidence was considered, union counsel argued, only one conclusion could be reached - the grievor had been discriminated against on the basis of race Conclusion to Union Submissions Ultimately, in the union's view, both the grievor and Ms Delorme-Leclair were victims in this process, victims of a bureaucracy run amok. The employer, union counsel argued, was obliged to administer its Sexual Harassment Policy fairly, but had failed to do so In the union's view, all three grievances were clearly arbitrable, and counsel reviewed a number 136 -. of authorities to this effect. Counsel also took the position that the duty of fairness required fairness throughout the process, and that a failure to be fair at one point could not be remedied by a board of arbitration concluding after the fact that, the decision which was reached was correct. Moreover, in the union's view, a failure to be fair at one point could not be remedied through the provision of an opportunity to respond at another The defects in the investigatory process underlying Ms. Desjardins' report, counsel argued, simply could not be cured At the end of the day, union counsel argued, it was clear that the employer acted without just cause in terminating and reprimanding the grievor It was also clear that these decisions were motivated in part by the grievor's race The evidence also established, counsel submitted, that the employer infringed the grievor's Article A rights and denied him a fair investigation of Ms Delorme-Leclair's sexual harassment complaint. Counsel asked for a declaration to this effect, an order rescinding the discipline and directing the employer to reinstate the grievor to the investigator position Counsel also asked that the grievor be compensated for his legal fees, be awarded punitive damages because of the mistreatment he had received, and also be given damages for the pain and suffering he had been forced to endure Employer Reply It was important, employer counsel began in reply, to distinguish between union rhetoric and reality It was extraordinary, in counsel's view, that the union would attempt to assert that the grievor's conduct and comments did not constitute sexual harassment. The cases clearly provided, and counsel referred to some of the authorities supplied by the union -in support of this submission, that unwelcome comments, 137 .. innuendoes, sexist remarks, and gender-based insults do constitute sexual harassment. Counsel argued that the grievor's remarks clearly fit into well-established definitions of sexual harassment. The grievor was not, counsel submitted, simply some hard taskmaster; he was a sexual harasser He was a male supervisor who unfairly harassed and berated a subordinate and made numerous remarks, about her looking "provocative" and going out on "hot dates," that he knew, or should have known, to be unwelcome This conduct adds up to two things sexual harassment and a poisoned work environment. Counsel did not dispute the union's assertion that complaints of sexual harassment could not be evaluated solely on the basis of Ms Delorme-Leclair's subjective interpretation Obviously, counsel argued, an objective assessment, or one of reasonableness, must be inserted into the equation There was a big difference, in this respect, between generalized comments made in heavily populated workplaces, and specific sexual comments made to a subordinate in a two-person office In this regard, counsel submitted, many of the cases relied on by the union in support of its assertion that the comments the grievor made, even if true, were not harassment could and should be distinguished from the instant case Simply put, sexual banter among a crowd, or in front of one, was not what this case was all about. This case was also not about profanity or dirty jokes It was not about touching or grabbing It was about highly personalized sexual comments directed by a man to a subordinate female employee The fact that so many remarks were made in a matter of days was more than sufficient, in the employer's submission, to establish a pattern of misconduct. It is not easy, employer counsel suggested, to create a poisoned work environment in a few days, but the grievor had been successful in doing so 138 .f I / With respect to union counsel's comments on credibility, counsel argued that the Rittersporn and Boreham incidents were properly admitted as similar fact evidence, but, even more importantly, could be used for the purpose of testing the grievor's credibility And when that evidence was reviewed, there was, the employer suggested, little doubt about who should be believed. The evidence established that Ms. Delorme-LeClair had been sexually harassed by the grievor, who created a poisoned work environment which, in the result, forced her to leave a higher-paid position that she might otherwise still hold. The fact that Ms Delorme-Leclair may have said on one occasion that a certain incident happened several times, and on another that it happened at least once, was not indicative of her not telling the truth. After all, the events outlined in this case took place during a very compressed period of time It was hardly surprising, in these circumstances, that there would be minor variations in her account. What was important was that there was no evidence supporting the grievor's main claim - that Ms Delorme-Leclair was a racist. She did say that there were "cultural differences" between her and the grievor But she explained, when cross-examined by union counsel, that what she meant was that the two of them had been raised in different ways, and what she was attempting to do, counsel argued, was to provide an explanation for whatever it was that caused the grievor to behave in the way he did This was not, employer counsel asserted, evidence of racism There was nothing unusual in Ms Delorme-Leclair's returning from vacation and still working alongside the grievor for two days, even if she believed that she had been sexually harassed All that this evidence demonstrated was professionalism, a commitment to the job, and an 139 ., absence of racism. Why would Ms. Delorme-Leclair lunch with the grievor if she was a racist? Moreover, counsel submitted, Ms Delorme-Leclair clearly had nothing to fear from returning to work for two days, because she knew that Ms. Hutchinson would also be there There was nothing wrong, in the employer's view, with not discussing Ms. Desjardins' investigation with the grievor until it was complete In every other respect, it was business as usual with the grievor; the only exception was this outstanding investigation In counsel's submission, this is the way it should be once an independent investigation of a formal complaint has begun , It was interesting, in the employer's submission, that the grievor claimed to have been given recording equipment for use with witnesses and police officers, but that the only time he actually used it was to secretly tape subordinate employees. When the taped conversation with Ms Delorme-Leclair was played, it was clear that the grievor was acting in an overbearing and coercive way in order to encourage her to resign her position The grievor's intention was clear - to get on the record some reason other than the truth for her ending the secondment. The grievor obviously believed that he had achieved this objective, and that is why he turned over a copy of the tape. Unfortunately for him, anyone listening to the tape, counsel submitted, would quickly ascertain the real reason why it had been created The fact that the grievor mentioned the tape to Mr Conacher was hardly a significant factor, since Mr Conacher had already communicated to the grievor his resolve not to become involved in the sexual harassment investigation until that matter was completed Even more importantly, the evidence indicated that Mr Conacher did not appreciate the significance of the tape at the time Moreover, the grievor .-->-.-=-- 140 ., never told Mr Conacher that he had taped Ms. Delorme-Leclair secretly Although the union asserted a "two-victim" theory, suggesting that both the grievor and Ms Delorme-Leclair had been victimized by these proceedings, counsel pointed out that this theory was at odds with the facts. For one thing, it did not make sense to describe Ms. Delorme-Leclair as a victim, and as a liar and a racist. Ms. Delorme-Leclair was a victim, counsel asserted, of the grievor, not of the bureaucracy She was not forced to file a complaint, although she may have been encouraged to do so The evidence was, however, that Ms. Delorme-Leclair came to realize the extent of her loss, and the reasons for it, and that is why she filed a complaint. It was not simply because she was informed that she may have / been sexually harassed The union made much of the fact that the employer did nothing after learning of the Rittersporn and Boreham incidents, and went so far as to suggest that had the grievor been advised of these incidents, the problems with Ms Delorme-Leclair would never have occurred, and that the grievor had been victimized in the result. In counsel's submission, this prong of the union's "two-victim" theory was entirely without merit. Informing the grievor of these events would not have changed anything, counsel asserted, because when the grievor was informed of them he either denied them or came up with some other explanation for them. How could it possibly have changed anything, counsel asked, if the grievor had been told about them at the time, given his response when he was finally informed? Counsel also pointed out that even after Ms. Delorme-Leclair's complaint was filed, the grievor continued to act in a questionable way The fact -that-the grievor told Ms Hutchinson that someone referred to Ms - - 141 . Delorme-Leclair as a "dog" (assuming that the grievor's version of events was believed) indicates that the grievor's behaviour was not affected by what had occurred The grievor made numerous other sexual remarks to Ms. Hutchinson, although counsel agreed that it was not clear exactly when those other remarks had been made The fact that the grievor denied virtually every one of Ms. Delorme-Leclair's allegations, and referred to her as a pathological liar, was indicative of a person who would not easily be rehabilitated through counselling Counsel accepted the assertion that human rights codes are intended to be remedial and not punitive He noted, however, that disciplinary action is often taken in the resolution of a human rights complaint, and that the imposition of discipline is often part and parcel of any remedy that is imposed In the instant case, there was simply no reason to believe, counsel argued, that informing the grievor of the Rittersporn and Boreham incidents when they occurred would have made any difference The grievor, he noted, had been steadfast in his denial that the key elements of these incidents had occurred. With respect to the Sexual Harassment Policy, counsel argued that there were only two places in which it had not been complied with The investigation had not, as required, been completed within thirty days More importantly, Ms Desjardins failed to return to the grievor to advise him of the new allegations that had been made Counsel conceded that this was a breach of the policy, and that the investigation was flawed to a considerable extent because of it. However, it was absolutely clear that even if Ms Desjardins had put the new allegations to the grievor, he would have denied them, as he did when Mr Lewis asked for his response What was important was that the decision-maker in this case did not rely on an incomplete or flawed investigation report; rather, he gave the grievor a full opportunity to respond, and when the grievor responded, he made an 142 -J assessment about whether the grievor could be believed The failure to conduct a proper investigation was not prejudicial in this case, for nothing turned on that fact. In the employer's view, nothing turned on the fact that the employer pursued a formal investigation of Ms Delorme-Leclair's complaint rather than following an informal route It was important to remember that Ms Delorme-Leclair had, as a result of the grievor's sexual harassment, suffered a significant loss. She was a single mother who was forced to give up a better job, and one paying a higher salary She had also been subjected to considerable sexual harassment over the course of a few days In these circumstances, conducting a formal investigation was the only logical response Likewise, there was nothing wrong with Mr Lewis' refusing to grant an adjournment when he met with the grievor and his lawyer to dISCUSS Ms. Desjardins' report on February 5, 1992 Ms. Payne and the grievor could have requested an adjournment in advance, but for whatever reason chose not to do so In addition, nothing was lost by not granting the adjournment. Ms Desjardins subsequently advised the OPCC that she had not received the voluntary statement and would presumably have said as much on February 5, 1992, had Mr Lewis been successful in contacting her Moreover, Mr Lewis reached some conclusions about that statement, and counsel suggested that those conclusions have been more than borne out in the facts There was also nothing wrong with the employer's arranging for some back-up assistance to be available in the aftermath of the meeting It was quite conceivable that the meeting could end wIth a number of l ------ --- I~ 143 different results, and the fact that a contingency plan was put in place was hardly suggestive, in counsel's view, that the result was preordained While the union asserted that ending the grievor's involvement in a pending investigation was one of the reasons for terminating his secondment, it was noteworthy that the secondment was not terminated immediately, but thirty days hence. Moreover, the employer could have easily done nothing and allowed the secondment agreement to run its course It had only a short time left to run However, Mr Lewis refused to follow this path of least resistance because that would have been wrong once he had concluded that the grievor had sexually harassed Ms Delorme-Leclair and that the necessary element of trust between him and the grievor had been irreparably destroyed Counsel again asked that all three grievances be dismissed - Decision Having carefully considered the evidence and arguments of the parties in this long and drawn-out proceeding, we have reached the conclusion that two of the grievances - the allegation that the grievor has been disciplined without just cause, and the allegation of discrimination based on race - should be dismissed, and that the grievance taking issue with the sexual harassment investigation and report should be allowed in part. It is most convenient to deal with the grievances in this order, although the facts underlying them, and to a certain extent the reasons for disposition, are very much the same 1 Grievance Alleging Dismissal without Just Cause and Discipline without Just Cause In our view, the decision to terminate the grievor's secondment, while allowed at any time pursuant to the terms of the secondment agreement, 144 -~ . was exercised in this case as part of a disciplinary response to a finding that the grievor had sexually harassed another employee This finding also led to the imposition of a formal reprimand The fact that these two events were so closely linked allows us to consider both of them for the purpose of determining whether the employer, in ending the secondment and in formally reprimanding the grievor, acted with just cause The first question that must obviously be addressed is' Did the grievor sexually harass Ms. Delorme-Leclair? We find that he did Everyone knows, or ought to know, that sexual harassment is prohibited and subject to censure. Why the grievor would, on being introduced to Ms Delorme-Leclair, state that he had no agenda, "workwise or sexually," is completely beyond us We find as a fact that he made the remarks - attributed to him by Ms Delorme-Leclair, and that a number of these uninvited and unappreciated remarks, such as his initial observation about his agenda, followed in short order by his question about a "hot date" and his comments that he found her hair "provocative" and that her "boyfnend" called, have no place in any workplace These comments must be placed in the context of the grievor's generally harassing behaviour, not to mention some of his other personal questions and remarks, made at a time when he and Ms Delorme-Leclair were virtually strangers In making this finding, we have obviously reached a conclusion about credibility, and, in the main, we find Ms Delorme-Leclair's version of events completely credible The grievor's explanation, consisting largely of point blank-denials, has failed to satisfy us, and, along with other reasons, has led us to conclude that the events occurred as alleged We make that finding having applied an evidentiary standard of clear, cogent, --- 145 ,~ and compelling evidence Ms. Delorme-Leclair's account of events was consistent throughout, any inconsistencies were of a trivial character The grievor, in contrast, when he testified, was argumentative, abrasive, and, at times, evasive On one occasion, as noted in the body of this award, the grievor simply refused to answer several of employer counsel's questions In reaching our finding on credibility, we were influenced somewhat by the contradictions in the evidence of Ms. Hutchinson and the grievor, and in the contradictions of the evidence of Ms Rittersporn and Ms Boreham and the grievor Ms. Hutchinson described conversations that took place - for example, that the grievor said he was "fantasizing about her" one day on their way to a restaurant - but the grievor denied this and other assertions. Ms. Rittersporn described an event, and the grievor denied the key elements of her ac.count. The same can be said with respect to the Boreham incident. These inconsistencies, and this is just a partial enumeration of the conflicts in the evidence, can only be resolved in one -- way' by a finding that the grievor was not telling the truth about what had taken place. Not only is it inherently improbable that Ms Delorme-Leclair, Ms Hutchinson, Ms Rittersporn, and Ms Boreham are all lying and that the grievor alone is telling the truth, but having heard all these witnesses, we are of the view that the opposite is, in fact, the truth This conclusion is further buttressed by our finding that when the grievor telephoned Ms Delorme-Leclair on July 18, 1991, he knew exactly the reasons behind her decision not to return to work, and he directed his questions, and the conversation, to obtaining a commitment from Ms Delorme-Leclair not to file a sexual harassment complaint. - ~ 146 ,~ \, It is important to remember that the grievor testified in these proceedings that he was not aware, when he telephoned Ms. Delorme-Leclair on July 1 8, 1 991, that she would be alleging sexual harassment as the reason for ending her secondment. That may be true. But the tape and transcript of the conversation make it perfectly clear that he knew that his conduct, and allegations of sexual harassment, might come into issue Soon after this conversation begins, and on several occasions, Ms Delorme-Leclair refers to incidents that bothered her In response, the grievor attempts to brush aside these incidents, revealing at the same time a concern that it would "sound bad" if some "third party hears it. if they don't know the truth" The grievor then asks Ms. Delorme-Leclair several times during the remainder of their conversation whether she has claimed that "I'm harassing you sexually, or something like that. " In response to each of these questions, Ms. Delorme-Leclair indicates that all she wants is to return to her home position, and she states that she -- has no intention of filing a formal complaint. The grievor also indicates a concern that the OPCC in Toronto might have learned about Ms Delorme-Leclair's decision The discussion continues The grievor' Now, I want an honest response from you. If you haven't done anything about this officially, would like me to set the motion for you to go back, for you to go back, for you to be relieved of your contract within the 30 days? Ms. Delorme-Leclair' Mm, yes, obviously I want to. But if .1 want... The grievor' You're not answering the question I asked you. Ms. Delorme-Leclair' I was planning on calling in to give my notice, like I don't have a typewriter here. The grievor' That's all right, 1 can take it from you verbally but I want a specific answer from you, Apart that you reported something to Francine, which is vicious and malicious, as 'far as I am concerned, I am asking you have you reported this as rumour and this opinion to anybody officially, or is it a 147 ,~ stage where I could deal with it to get you relieved of your contract within 30 days. Ms. Delorme-Leclair' No, we can make arrangement for me to return. The grievor' You're not answering the question. Ms. Delorme-Leclair' I didn't sign any cqmplaint, if that's what you want to...l'm not interested in doing any trouble. All I want is to go back. The grievor' Okay Okay So my question again, I'" repeat, is, as far as my Ministry is concerned and your Ministry is concerned, they don't know anything about this? Ms. Delorme-Leclair' What you know official? You mean, official, you mean if I've started a complaint or anything or what? The grievor Yes. Have you spoken to anyone in the Complaints Commission? Ms. Delorme-Leclair No, no. The grievor' Now that I'm talking with you, now you are saying that there is no allegation against me? Ms. Delorme-Leclair' No. The grievor And it is merely that you want to go back to your place because you are more comfortable there, all right? Mm, then I can call them in Toronto tomorrow and tell them that you have given me, you are on vacation and you have called me and given me, and we have spoken and you have given me a verbal thing. [Further discussion ensued with respect to the wording of Ms. Delorme-Leclair's request to end her secondment.] The grievor' That will solve the problem for you and for me. Ms. Delorme-Leclair' Mm hm. The grievor' And we will...uh, this matter will be resolved and the misunderstanding which obviously existed will be removed. Ms. Delorme-Leclair' Right. The grievor' And I hope that's the last of what I hear of this. Ms. Delorme-Leclair' Yes. The grievor' Is that satisfactory to you? Ms. Delorme-Leclair' Yes, it is. The grievor' Because obviously there has been a tremendous misunderstanding, You know? 148 .~ Ms. Delorme-Leclair" I know The grievor Well, listen here, I want to tell you this right now, it will be a shame in the sense that I will miss you and we have a lot of typing and work to do and you do your best, I do my best and you know, that's the best I can say l'm...I'm really sorry that you...you were under this impression and that we obviously [inaudible] each other in causing the work environment. But I can understand it, you miss your old job and, more importantly, you got your signals mixed up somehow. So, but that's part of life, eh? Ms. Delorme-Leclair' Well, okay, so I'll see you on Monday then. The grievor Okay, best of luck. Enjoy your other days. Ms. Delorme-Leclair Okay, thank you. The grievor" Bye bye. This extract, and the taped conversation considered as a whole, leave us with little doubt that the grievor clearly knew Ms Delorme-Leclair's reason for wishing to end her seeondment. Quite clearly the grievor makes a reference to something "vicious and malicious" having been reported to him by Ms Hutchinson It is equally clear that what was reported was not a racist motivation underlying Ms. Delorme-Leclair's decision not to return to the job When the entire conversation is considered in context, the only reasonable inference that can be drawn is that the grievor knew, either because Ms Delorme-Leclair told him and/or (more probably) because he was aware of the nature of his misconduct, and that there was a good possibility that a sexual harassment complaint might be filed. He then took positive steps to avoid that result. Very simply, the conversation, in both tone and content, reveals that the grievor knew he had something to hide His subsequent denials of having said many of the things attributed to him by Ms. Delorme-Leclair must be assessed keeping the tone and content of this - ----- 149 .~ conversation in mind After hearing all the evidence, and carefully reviewing the numerous documents introduced into evidence, we find that the grievor engaged in a course of vexatious comment that was known, or ought reasonably to have been known, to be unwelcome This conduct constitutes differential and discriminatory treatment against Ms Delorme-Leclair, and it occurred because of her sex. Obviously, sexual harassment complaints require evaluation of conduct that occurs over a wide spectrum. In Janzen. former Chief Justice Dickson stated "When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being" (at 33) The occasional rude and inappropriate remark will only exceptionally result in a finding of sexual harassment. What matters is the overall context in which remarks were made, and what can reasonably and objectively be inferred from a dispassionate examination of both the context and the remarks Clearly, as former Chief Justice Dickson found in Janzen (at 31), sexual harassment can encompass situations in which employees must simply endure inappropriate comments. In this case, Ms Delorme-Leclair was forced to endure such comments and, for the reasons that follow, we find that the grievor's remarks met the requirements of the Janzen test. The sexual harassment that took place in this case was 150 . of a relatively low level What makes it especially problematic, however, was its serious implications on Ms. Delorme-Leclair To be sure, some employee other than Ms. Delorme-Leclair may have simply told the grievor to keep his comments and observations to himself Ms Hutchinson clearly did not mind the grievor's sexual remarks. It is I possible, if Ms. Delorme-Leclair I had expressed her concern, that the grievor might have stopped making inappropriate remarks. In general, we are of the view that employees should at least attempt to deal with the inappropriate comments of other employees by making their concerns known Ms Delorme-Leclair's failure to do so has troubled us to a very great extent. While a failure to speak to a perceived offender is not fatal to a sexual harassment complaiht, in any case where the harassment, as we have found it here, is of a relatively low level, albeit annoying, disturbing, and with potentially serious consequences, adult employees ! I should attempt to redress the matter first through direct communication, rather than through the filing of a complaint. Very simply, not every inappropriate or stupid remark should lead to the filing of a complaint and the commencement of an investigation However, each case must be examined with a view to its own particular facts, as well as with a recognition of the individuals who are involved. In this case, there were only two employees working in the same office the grievor and the eventual complainant. It will obviously be much more difficult for an individual in these circumstances to make his or her displeasure known, particularly where the functional relationship between them is th~t of supervisor and$ubordinate. Moreover, if the individual in question is not an assertive person, and it will be recalled that Ms Delorme-Leclair had taken assertiveness training (as part of her goal of -- ~ ~ - 151 . entering management ranks), that will make an easy resolution of low-level sexual harassment even more problematic Making the informal resolution of this case almost impossible, however, was the grievor's treatment of this employee The fact of the matter is that the grievor treated Ms. Delorme-Leclair poorly and improperly, and this mistreatment began even before she started work, with his comments at the orientation session that he had no un.usual agenda "workwise or sexually" Whether he stated that day, or when Ms Delorme-Leclair first started work, that he expected more from an employee earning $37,000 a year matters little, these comments to a new employee were completely uncalled for His berating her on her first day on th~ job for failing to make the printer work further set the tone - and it was, we find from even before day one, one of sexual harassment and harassment. The grievor may have been under pressure - the new job was obviously causing a lot of stress - but that is hardly an excuse It should be noted, in this context, that the grievor never gave Ms Delorme-Leclair a chance to succeed in her new position Why Ms Delorme-Leclair was not provided with the equipment manuals remains, notwithstanding the grievor's explanation, an open question She indicated on her first day on the job that the equipment was new, and even someone like Ms Delorme-Leclair, who was experienced with Word Perfect 5 1, might still need some time to familiarize herself with the new equipment. To be sure, the intake officer job was a promotion, but even a cursory review of Ms Delorme-Leclair's most recent performance appraisal indicates that she was a highly experienced and extremely well-regarded employee There was absolutely no reason for her not to succeed in the ~ new position - no reason except the way in which the grievor treated her -- 152 'J Quite understandably, that treatment did not create an environment in which Ms Delorme-Leclair could have felt comfortable in bringing her concerns to the grievor's attention Clearly, in this case, Ms. Delorme-Leclair quickly came to the conclusion that the grievor's comments, their character and frequency, were part and parcel of the job, and that continued exposure to them was thus a condition of employment. There was no "quid pro quo" in this case in the sense of tangible job-related benefits being made contingent on participation in sexual activity What Ms Delorme-Leclair quickly ascertained was that, if she wished to continue in the job she would have to put up with certain inappropriate and, ~o her, offensive and annoying behaviour The number of incidents that occurred during her first two weeks on the job, when the grievor was away approximately half the time, more than establishes a pattern of conduct sufficient for a sexual harassment finding of the poisoned work environment variety to be made It is far from clear, however, that it is necessary, appropriate, or even useful to attempt to distinguish between types of sexual harassment and to categorize sexual harassment in this way To paraphrase the Janzen award, we find that there was unwelcome conduct of a sexual nature that detrimentally affected the work environment and led to adverse job-related consequences for Ms. Delorme-Leclair This is not a case where an invitation to dinner resulted ~n the filing of a sexual harassment complaint. Nor is this a case of a complaint concerning the odd offensive or crude remark. What happened was that the grievor's unwelcome conduct of a sexual nature, when considered in the context of his behaviour generally, led Ms. --Delorme-Leclair to conclude that sexual harassment was a condition of --- - 153 . employment. This conclusion, which we can only find was objectively reasonable in this particular case, given the number of events that took place in such a short period of time, caused her to decide to end her secondment. It was only later, when she realized the significance of her loss,. and with some counselling from management, that she decided to file a complaint. We note, and emphasize, however, that the preferred approach would first require that one employee notify another employee when he or she had cause for concern. In many ways, this is an extremely unfortunate case While we find that the grievor is the principal author of his own misfortune, we cannot also help but find that had the employer, on learning of the Rittersporn and Boreham incidents, counselled the grievor with respect to them, it is possible that none of the other events outlined in this award would have come to pass For the reasons that follow, we do not think that this was likely, but it was clearly possible, and it is because of this possibility that alleged harassers should, absent exceptional circumstances not present in this case, be notified whenever management has reason to believe that their conduct constitutes sexual harassment. The reason we do not think notification would have made much of a difference in this case is that at least one employee, Ms Rittersporn, indicated to the grievor that his comments were unwelcome He persisted in making such comments to her nevertheless We would like to make it absolutely clear that it is our view, that where sexual harassment is alleged, education is, in most cases, the most important and often the most appropriate management tool In this case, a window of opportunity was lost after the employer became aware of two incidents that clearly required immediate attention, notwithstanding the .,- 154 ,~ understandable motivation at work underlying the decision not to bring them to the grievor's attention In retrospect, as Mr Conacher testified, this decision was a mistake The employer has a duty, and a legal obligation, to respond to all incidents of discrimination and harassment of which it becomes aware, regardless of whether the individual involved has made a complaint. It should be noted that the evidence indicates that the grievor had not, at the material times, been given a copy of the Sexual Harassment Policy The OPS Policy states: All Ontario Public Service employees must be: -educated and sensitized to the issue of sexual harassment and its effects; -made aware of their responsibilities in creating and maintaining a work environment that is free from sexual harassment, -made aware of the Ontario Public Service policy on sexual harassment and the various advisory and complaint channels available (at 3). The OPS Guide to the Sexual Harassment Policy expands on the education responsibilities of the employer in preventing the occurrence of sexual harassment in the workplace, and the evidence indicates, insofar as the grievor was concerned, that he was not made formally aware of the requirements of this policy Nevertheless, and as noted above, the grievor must ultimately bear responsibility for his own conduct and comments. No one needs to be given a policy to know that sexually harassing comments are not permissible in the work place, and the recorded July 18, 1991, telephone conversation indicates that the grievor knew at the time that he had done something wrong A review of the transcript of that conversation with Ms Delorme-Leclair establishes that the grievor knew that there was a -.--.-- --- - - -- - 155 -~ possibility of a sexual harassment complaint. His reference to the "Complaints Commission" clearly indicates as much This is hardly surprising The grievor is a highly educated individual. He may have never been given a copy of the Sexual Harassment Policy, but with all of his education and experience in the OPS it is unimaginable that he was not aware that sexual harassment is wrong We find, in fact, that he was aware of this, and that is why he sought to cover up his misconduct by assisting Ms Delorme-Leclair in ending her secondment. One of the purposes of discipline in sexual harassment cases is to educate, but there is little reason to believe that the grievor, with education and counselling, would have learned to choose hi~ words more carefully and to change his behaviour As already noted, even after the complaint was filed, th~ grievor continued to engage in questionable behaviour as his comments to Ms Bartley with respect to Ms. Hutchinson's "beautiful brown eyes" suggest. This comment says something about the grievor's ability to understand, and to learn, that there was something fundamentally wrong with his approach In all the circumstances of this case, we can only find that the gnevor was disciplined with just cause, and that the penalty imposed should not be interfered with However, having made that observation, a few final comments are appropriate As already noted, the sexual harassment in this case, on a spectrum, is at the low end. In our view, the most appropriate management response for inappropriate and sexually harassing comments of the kind found here is counselling and education Certainly, incidents of the kind and character of those described in this award should not normally and initially result in a full-scale investigation The first ---approach should be relatively unobtrusive, emphasizing counselling and 156 ~ education However, this approach requires a recognition on the part of the harasser that something that he or she has done is wrong, and it further requires a willingness to accept education and to attempt to change In this case, the grievor has consistently denied that he has ever done or said anything wrong. Although he has, at least through counsel, indicated concern about never having been advised of the Rittersporn and Boreham incidents in a timely way, and of not having been given a copy of the Sexual Harassment Policy, those concerns have not been raised in the context of a recognition that something was wrong and needed to change We are, therefore, allowing the reprimand to stand, and do so because we " find, in the particular circumstances of this case and for the reasons given above, that it, along with the termination of the secondment, was an appropriate f!lanagerial response We also reach this conclusion because of the consequences of the harassment on Ms. Delorme-Leclair Perhaps Ms. Delorme-Leclair was not (the evidence to the contrary notwithstanding) a good employee Perhaps the job was too much for her, and she wanted to return to her old job where she was more comfortable and had less work. Perhaps she was, as union counsel asserts, "timid and insecure " What is important in this case, however, is that the grievor never gave her a chance to prove herself He sexually harassed her, and he harassed her (making the informal resolution of the difficulties in their relationship all but impossible), and he left her feeling as if she had little choice but to return to her home position. Sexual harassment cases do not take place in a vacuum. There are victims, and in this case Ms Delorme-Leclair was victimized by the grievor She lost a better job, with higher pay and promotion possibilities, because of the conditions of work that the grievor imposed 157 ,~ In determining a penalty, management was certainly entitled to take this factor into account Finally, in making our finding, and in dismissing this grievance, we would like to point out that none of the comments, if individually considered, would be sufficient to result in a finding of sexual harassment. Had the grievor simply made one or another of these comments, we would have found his having done so not to constitute sexual harassment - although there would still have been cause for counselling What makes this case distinct is the overall context in which the relatively low-level sexual harassment took place. The comments were made in the context of an extremely insensitive relationship of a supervisory nature, and a pattern of misconduct was established in a very few days In contrast to some of the cases relied on by the union, this is not a case where the comments were made over a period of years or even months The grievor's comments constituted sexual harassment and created a poisoned work environment with adverse job-related consequences for Ms Delorme-Leclair The -- termination of the secondment agreement and the issue of a formal reprimand must stand Neither was unjust. This grievance is dismissed 2 Grievance with Respect to Racism This grievance is also dismissed, and we must state from the outset that there is not even a hint of racial discrimination in this case Mistakes were made, lots of them, but there is no evidence whatsoever suggesting that Messrs. Lewis and Conacher, or anyone else in the OPCC, Ms. Delorme-Leclair or Ms Desjardins, discriminated against the grievor on the basis of race What evidence that does exist suggests that the grievor contrived the racism allegation, and did so only when he realized that he needed to establish a defence to Ms. Delorme-Leclair's sexual harassment - - - -~ ~ 158 .J complaint. The union had the burden of proving that the grievor had been discriminated against on the basis of race, and we find, without reservation, that no credible evidence was led establishing this to be the case Many allegations of racial discrimination were made in this matter and, in every case, a rational and credible explanation was provided in response to those allegations. None of the conduct complained of was consistent only with the allegation of racial discrimination Carefully ana lysed and assessed, and viewed in an objective manner, none of the conduct complained of can be fairly characterized as discriminatory After all the evidence is considered, there is no basis whatsoever to infer the existence of discrimination in this particular case Very simply, we find that the grievor was not discriminated against on the basis of race We find the timing of the preparation of Ms Hutchinson's voluntary statement extremely suspicious, as is the fact that the grievo! had a hand in reviewing its contents - a fact not known to at least one of his lawyers until he testified in these proceedings Even more troublesome is the fact that no mention was made of a racial motivation on the part of Ms Delorme-Leclair in any of the grievor's early communications with Ms Malyon, or anyone else for that matter The chronology of events is worth examining The grievor learned on July 18, 1991, that Ms. Delorme-Leclair did not intend to return to her assignment. He testified that he was astounded by the information, relayed to him through Ms. Hutchinson, that Ms. Delorme-Leclair was ending her secondment because she did not wish to work for a black man He, therefore, decided to call to see "what was 159 . going on II He called her that night, and recorded the call Not once in that conversation does he refer to racism as her motivation As we have already found in this case, the grievor was clearly animated and focused on his concern that Ms Delorme-Leclair might file a sexual harassment complaint against him. Continuing the chronology, Ms. Delorme-Leclair returns to work the following week, signs the agreement terminating her second me nt, and, to the grievor, everything seems fine They even have lunch together her last day on the job. It is hard to believe that the grievor would go out for lunch with Ms. Delorme-Leclair believing her to be a racist. Moreover, it defies imagination and credulity that the grievor, having obtained information that Ms Delorme-Leclair was ending her secondment because she was a bigot, would not have mentioned it on one pf the several occasions available to him prior to his meeting with Ms Desjardins The grievor met with Mr Conacher at the beginning of August. At that time, and we accept Mr Conacher's evidence on this point, the grievor expressed the view that he did not understand what motivation underlay Ms Delorme-Leclair's complaint. If he really knew that Ms I Delorme-Leclair had made a racist remark, it is incomprehensible that he would not have mentioned it to Mr Conacher when the two met to discuss, I among other things, the circumstances leading to the termination of Ms I Delorme-Leclair's secondment agreement. The only mention of I I discrimination was a statement the grievor made about his having been discriminated against in the past. The grievor also met with Mr Ages early in August. A memorandum he prepared prior to that meeting says nothing about racist motivations underlying the complaint. With Mr Ages' assistance, the grievor prepared 160 .~ and submitted a formal reply to Ms Delorme-Leclair's complaint, and that letter makes no reference to any racist motivation on Ms Delorme-Leclair's part. The first reference to race is in the grievor's September 1 0, 1 991, letter to Ms Desjardins, in which he refers to Ms Delorme-Leclair as being racially prejudiced against him "in light of her racist comments to Francine Hutchinson, when she indicated that she wanted to return to her French boss" What that reference indicates to us is that Ms Delorme-Leclair wished to return to her home position because she felt more comfortable, as a francophone, with a franco phone boss We cannot find anything racially discriminatory about these remarks The grievor gave various explanations about why he held back providing the details of Ms Delorme-Leclair's racism, as relayed to him by Ms. Hutchinson In another case, we might find that the failure to allege racism at an early stage was not indicative of the fact that the issue was being improperly raised much after the fact. It is undoubtedly true that the grievor, and other members of visible minorities, regularly experience racism, and that they do not formally take issue with each experience as it occurs In this case, however, for the reasons that follow, we find that the allegation that Ms Delorme-Leclair stated that she was leaving her secondment because she did not "wish to work for a black man" is without any credible evidentiary support. The weight of the evidence, in fact, indicates that this allegation was arrived at some time after Ms Delorme-Leclair indicated to Ms. Hutchinson and the grievor that she wished to end her secondment, and after she filed her formal complaint. As will be discussed below, there is little reason to believe anything Ms Hutchinson said We have already indicated our finding that Ms Delorme-Leclair was a credible witness She knew who she would be 161 I '. working for before she started the job, and she lost a great deal as a result of leaving the job No doubt, in some cases, a reference to "cultural factors" would be little more than a code word hiding racist attitudes and beliefs. In our view, this is not such a case The grievor clearly had a different management style, and Ms Delorme-Leclair, in discussing it with Mr Beaudoin, attributed that to "cultural factors" When all the evidence is considered, including our finding that little Ms Hutchinson said could be believed (a sentiment with which the grievor partially, at least, concurred), we do not find that this statement, considered alone, provides the necessary evidentiary foundation to buttress and provide evidence for the allegation that racist motivation was what was really at work In addition, we find that there is no reason to conclude that Ms Desjardins was prejudiced against the grievor for reasons of race On balance, we must conclude that Ms Desjardins did not receive a copy of Ms Hutchinson's voluntary statement when she interviewed the grievor in the company of his lawyer on September 27, 1991 Her investigation, as set out above, and as discussed below, was clearly incompetent, and her report was, in places, most unfair But there is no reason to believe that she suppressed a vital piece of evidence supposedly given to her for copying by the grievor or his lawyer, after having supposedly returned the original of the document to the grievor or his lawyer It would have been completely foolhardy for her to have done so, and there is no question that an act of that kind would inevitably be discovered More importantly, if she really wanted to suppress that voluntary statement, she would not have included the grievor's October 25, 1991, letter as an appendix to her report - a letter that specifically mentions the voluntary statement. The fact- that Ms Desjardins did not, on reading this letter, realize that .- - - --- - 162 .. something was seriously amiss is simply another factor establishing that she did not have the training, and perhaps the ability, to conduct a proper investigation This finding is, of course, quite different from a finding that Ms Desjardins discriminated against the grievor on the basis of race Had Ms Desjardins kept a log of documents received, or had she simply provided receipts, there would have been little doubt in this case that she was never given a copy of the voluntary statement. For whatever this observation is worth, we find it somewhat surprising that Mr Ages would make a statutory declaration asserting something to be true, and later admit that it was possible that he had made a mistake Union counsel suggests that this admission was in the context of "anything is possible" The fact of the matter is that some things are not possible and others are. Statutory declarations should, one would think, be reserved to those matters about which there is absolutely no doubt. It is worth noting that, in this case, Mr Ages did not make notes of his meeting with Ms Desjardins, she did, however, keep a record of what was said She also signed and dated one document that she did receive On balance, we readily conclude that the voluntary statement, for whatever reason, and Mr Ages himself suggested one of them, was, notwithstanding Mr Ages's "statutory declaration," not handed over at this meeting The union has also asserted in this case that Messrs Lewis and Conacher I I discriminated against the grievor on the basis of race It should be said at the outset that that allegation is without any basis in fact. In support of this assertion, union counsel suggests that Mr Lewis should have reopened the investigation after being advised that Ms. Desjardins had received, but ignored, the voluntary statment alleging that Ms 163 . Delorme-Leclair's sexual harassment complaint was motivated by racism Had Messrs. Lewis and Conacher ignored this new evidence, we might be inclined to agree that something serious was amiss The evidence, however, does not indicate this to be the case They clearly considered the new evidence It was reviewed during a lengthy recess, and attempts were made to- contact Ms. Desjardins. Those attempts were ultimately unsuccessful. In the meantime, however, Mr Lewis had reached some of his own conclusions about the motivation underlying the preparation of the voluntary statement, not to mention his own determination whether anything Ms. Hutchinson said could be believed He concluded that she was not credible in any respect, and decided to ignore all the evidence that related to her in reviewing with the grievor Ms. DeJorme-Leclair's allegations of sexual harassment. Even if our review was simply limited to the evidence that was available at the time, we would find that, in making these determinations, Mr Lewis acted completely properly and that nothing about them raised the spectre of racial discrimination When these determinations are reviewed in the context of all the evidence, it is clear that Mr Lewis not only acted properly, but correctly Very little that Ms Hutchinson said can be believed Certainly, the timing and the circumstances behind her so-called voluntary statement are highly questionable, to say the least. The fact that she could never recall when exactly Ms Delorme-Leclair made the alleged racist comments to her further supports our conclusion that those comments were never made We can only conclude that they were made up after the fact. While we do not find any basis for a determination that the grievor was discriminated against on the basis of race, we do find that Mr Conacher 164 .~ should have pursued the allegation of bigotry in the grievor's October 21, 1 991, memorandum with as much care and attention as had earlier been directed to the admittedly more detailed allegations of sexual harassment. That fact that he did not do so, however, does not even come close, given the circumstances of this case and Mr Conacher's explanation of the reason why he did not take any action with respect to this allegation, to establishing a foundation for a grievance alleging racial discrimination Finally, as noted at the outset of this award, the claim was initially made in these proceedings, and repeated throughout, that management had taken action against the grievor because of hi~ investigatory activities in connection with a particular, investigation involving complaints respecting the shooting of a black man. This investigation involved an event that occurred after the sexual harassment complaint was filed, and there is absolutely no reason to believe that it had anything to do with the ending of the grievor's secondment and the imposition of a formal reprimand This claim was totally unsupported by any evidence Repeating the "evidence" led in support of this assertion would be inappropriate, for it would give the claim a respectability it does not deserve Moreover, some other assertions were made that the grievor was not given the administrative support he required, and that he had been treated in various unacceptable ways These claims were just that, and have, in any event, little to do with the matter at hand. In addition, we can hardly find, in the circumstances of this case, that discrimination was at work when the OPCC decided not to waive the grievor into the investigator's position, it was an obvious decision, given the outstanding sexual harassment complaint and the various implied threats from the grievor that a failure to do so would be misunderstood. The grievor was disciplined and his ---- - 165 t secondment was terminated because of his misconduct. This misconduct, and the grievor's actions with respect to it, including, for example, his surreptitious recording of subordinate employees, led to a loss of trust. Race had nothing to do with it. This grievance is dismissed 3 Grievance with Respect to the Sexual Harassment Investigation and R e po rt In our view, grievances alleging impropriety in investigations of sexual harassment complaints, and grievances taking issue with any ensuing report, are arbitrable, since they raise disputes or differences arising out of the interpretation and application of the Collective Agreement. Article 27 10 1 of the Collective Agreement guarantees employees the right to be free from sexual harassment in the workplace Article 27 104 indicates the intention of the parties that this Board may be called upon to adjudicate grievances relating to sexual harassment complaints Moreover, a process is in place for the receipt of sexual harassment complaints and for the issue of reports. These reports are not simple administrative activities with little or no consequence for affected employees. These reports can, and often do, result in the imposition of discipline and, sometimes, discharge They raise real employee and union concerns, and where, as here, the result of an investigation and report is the imposition of discipline, it is entirely appropriate for an employee to take issue with the conduct of the investigation and the content of the report. If the investigation and the report are flawed, management actions that flowed from either may be brought into issue, and those actions, as in this case, involve other Collective Agreement rights We also find that we have jurisdiction in this case, since this grievance alleges that the employer has, because of the particular investigation and - I .~ 166 report, breached its duty of fairness Employer counsel conceded that a partial duty to act fairly should be applied to the conduct of Mr Lewis In our view, the duty extends beyond Mr Lewis to include Ms. Desjardins, and that means that the conduct of her investigation and the content of her report can and should be assessed on a fairness standard. Ms. Desjardins' report is not, as will be discussed below, some impartial consolidation of known facts gathered for some purely administrative purpose of little or no consequence It is a report containing a finding that the grievor engaged in sexual harassment. It is akin, in scope' and possible consequence, to the decision of an administrative tribunal, and the finding could, and in this case did, lead to serious consequences for the grievor Clearly, the grievor's rights, privileges, and interests were potentIally affected by Ms. Desjardins' investigation and report. In conducting her investigation, and in writing .her report, Ms Desjardins therefore owed the grievor a duty of fairness Mr Lewis also owed the grievor a duty of fairness, as was partially conceded by employer counsel. Here the question is not, as employer counsel put it, whether Mr Lewis "was correct in his conclusion" That question, and its answer, were obviously material to the grievance alleging that the grievor had been unjustly disciplined This is another grievance, and we must find that Mr Lewis, given the nature of the complaint, his relationship with the grievor, and the consequences of his decision for the grievor, was obliged to act fairly in reviewing the sexual harassment complaint and the Desjardins investigation and report and making a decision with respect to it. Implicit in this exercise, and in the application of this duty, is the use that he made of the Desjardins report. 167 .~ Accordingly, and for the foregoing reasons, we find that a grievance alleging a breach of the duty to act fairly in the context of the conduct of a sexual harassment investigation and the issue of a report is arbitrable and is properly before the Board Turning to the matter at hand, we find, for the following reasons, that Ms. Desjardins breached her obligation to the grievor, for she failed to conduct a fair investigation and to issue a fair report. We find, however, no such breach with respect to. Mr Lewis and the actions he took on receipt of Ms Desjardins' report. In making these findings, we would like to observe at the outset that the content of the duty to fairness, that is to say the actual processes put into play, will depend to a great extent on the circumstances of a particular case - The Desiardins Investigation and Report The OPS Sexual Harassment Policy requires investigators to "be trained in the procedures involved in conducting an unbiased, full and proper investigation, specific to sexual harassment incidents" (at 3) In this case, the evidence establishes that the investigator was minimally trained She attended a one-day pilot training program. More importantly, she failed to conduct a full and proper investigation Before turning to that investigation, some preliminary observations are in order Ms. Desjardins was not an independent investigator; she was an employee of the government, one of the parties to this Collective Agreement. Ms Desjardins may not have had an employment relationship with the opec, she was, nevertheless, employed by the Crown It may be goverment policy to use its own employees for the conduct of investigations of this kind. The wisdom of doing so is not a matter on ~ .~ 168 I which we wish to comment. However, the conduct of this investigation certainly highlights some of the dangers implicit in adopting this approach One of the main dangers in using government employees to conduct investigations of this nature is that they are subject to government control and direction. In this case, Ms. Desjardins testified that the burdens of her full-time job interfered with her ability to complete the investigation in a timely way There is no point in promulgating a policy to the effect that investigations will be completed within thirty days, and then giving that policy short shrift. Sexual harassment complaints are serious - for complainants and for respondents. Not only is timeliness essential for a proper investigation to take place, but the need for a speedy resolution is important for everyone in the workplace A complainant will want to know that his or her complaint is being taken seriously and acted upon with dispatch. The respondent to a complaint will want an opportunity to provide his or her version of events, particularly where a defence is asserted and the allegations underlying the complaint are denied This suggests, whenever possible, that investigators, who are also government employees, should, as appropriate, be relieved of other duties in order to focus on the investigation of a complaint. Not only is this a matter of fairness, but it will also demonstrate to workers and managers alike that the parties' shared commitment to ensuring a sexual-harassment-free workplace is being taken seriously, evidenced, as it were, by directing sufficient resources towards ensuring the timely investigation of sexual harassment complaints Our concern, however, is not really with whether arbitrary time periods were met, but with the spirit and sufficiency of the investigation, the expertise of the investigator, and the quality of the 169 ., ensuing report. In this case, the evidence establishes that Ms Desjardins was denied the resources to conduct a proper investigation Ms Desjardins testified that she consulted with Management Board Secretariat with respect to whether she should bring the new allegations she had uncovered during the course of her investigation to the attention of the grievor, as she was required by the Sexual Harassment Policy to do Acting on the advice of Mr Donio- and no evidence was brought forward to contradict this - Ms Desjardins, decided against doing so. The OPS Sexual Harassment Policy, applicable at the time of this complaint and the subsequent investigation, states that "a spirit of fairness to all parties shall prevail" (at 2) When one of the parties to the proceeding is responsible for appointing the investigator and providing that individual with the tools necessary to do the job, and then fails to do so, the integrity of the entire process is brought into doubt. In this case, the failure to provide Ms. Desjardins with sufficient resources resulted in the grievor being denied his due a full and fair - investigation Very simply, the grievor, in this case, was denied the formal opportunity to respond to allegations against him - allegations that formed part of the basis upon which Ms Desjardins testified her finding of sexual harassment was made Although one can, perhaps, understand the predicament Ms. Desjardins found herself in, her independence, and the integrity of the investigation, indeed, the whole investigatory prQcess from start to finish was compromised by the instruction she received to cut her investigation short and to report on what she had learned. Instead of completing the investigation in a proper and professional way, Ms Desjardins accepted and then executed the instructions she had received - 170 , ., When the report is examined, it is immediately clear that it is seriously flawed As already noted, the major flaw was Ms Desjardins' failure to put certain material allegations to the grievor for response (although it should be pointed out that the grievor was made aware of other possible incidents by Ms Malyon, and was informed of these incidents, later in the fall, by Mr Conacher) This constituted a complete denial of the duty of fairness she owed to him, and is a fundamental breach of the rules of natural justice The investigation and report could be set aside for this reason alone Unfortunately, there are other reasons dictating this result. Carefully considered, the report evidences bias on Ms Desjardins' part. Many facts which, for want of a better word, are neutral are, we must conclude, deliberately misconstrued to support the ultimate finding that was reached. A few examples will prove this point. Ms. Desjardins, in her report, implies that there was something sinister about the grievor asking Ms Delorme-Leclair to stay over the lunch hour to interview a complainant. It is possible, as Ms Delorme-Leclair later cam_e to believe, that the grievor deliberately asked the complainant to come in over lunch so that he could invite her to lunch after the complaintant left. We express no opinions on this matter What we can, however, point out is that Ms Delorme-Leclair was the intake officer, and meeting with complainants was part of her job. It may be true that the grievor asked this particular complainant to come in at a particular time so that he could later be alone with Ms Delorme-LeclaIr What was required here was for Ms. Desjardins to take the next step and to contact the complainant, before suggesting in her report that the grievor had done something wrong Instead, she just took Ms. Delorme-Leclair at her word and inferred and then implied that the interview had been timed because the grievor had an untoward purpose in mind. It should be noted that Ms- I 171 I .~ Desjardins, in marked contrast to her failure in this instance to pursue a lead that might have been exculpatory to the grievor, showed no such hesitation when it came to pursuing leads that might be inculpatory She made the time, for example, to interview Mr Connolly In another example, Ms. Desjardins deliberately conveyed the impression in her report that the grievor had also sexually harassed Ms. Hutchinson. If there was one thing that Ms Hutchinson made clear in her evidence before the Board it was that she did not object at all to the attention she received from the grievor That point should have been made in Ms Desjardins' report, instead, a misleading impression was conveyed We have already found that Ms Desjardins did not receive a copy of Ms Hutchinson's voluntary statement when she met with the grievor and Mr Ages on September 27, 1991 We accept her evidence in this respect because, as noted above, it is the only explanation that makes sense Had Ms Desjardins, however, conducted a proper investigation - for example, had she given receipts for documents received - this would not have been an issue in this proceeding Moreover, had she conducted a careful investigation, and it should be noted that reference was made to the voluntary statement in the grievor's letter to her of October 25, 1991, this would have been less of an issue in these proceedings On receipt of that letter, Ms. Desjardins really only had one question to ask. what voluntary statement? The fact of the matter is that she made an incorrect assumption It should also be noted that Ms Desjardins undertook to meet a second time with the grievor and his lawyer prior to issuing her report, and, for whatever reason, she broke her promise Investigators must not just conduct fair investigations, they must also conduct careful ones Ms Desjardins' investigation was sloppy For some ~ 172 reason, witness statements were not taken, and a great many of the interviews were done on the telephone One of the hallmarks of a careful investigation would be an investigatory file that documents each and every interview held, that €ontains, whenever possible, signed witness statements, and that includes a log of telephone calls made and received, as well as duplicate copies of receipts for any documents or other exhibits obtained Not only would the discipline of a careful approach lead to better investigations, but it would also, where the sufficiency of the investigation and report was attacked after the fact, provide a sound evidentiary basis on which that issue could be determined I i I Finally, on this point, it seems to us that neophyte investigators should not be sent out unsupervised to conduct an investigation Even a modest apprenticeship program would have prevented some of the investigatory abuses documented in this award The employer had a duty to appoint a properly trained and qualified individual Quite clearly, this obligation was not met. I Accordingly, and for the foregoing reasons, we find that Ms Desjardins, and thus the employer, breached its duty of fairness to the grievor by conducting an inadequate and improper investigation, and then issuing a report that relied on allegations that had not been put to the grievor in any formal way It is t.rue that we have found, earlier in our reasons for decision, that the grievor sexually harassed Ms Delorme-Leclair and that the discipline imposed should and could stand. That, however, is not the point. We cannot say that the process can be ignored if the right decision was reached The right to a fair investigation is an independent claim, and, in this case, we find that the grievor was deprived his due -~.-.~- 173 .~ Quite clearly, thIs matter is not moot. Ms Desjardins issued a report and that report now stands as an official record of the investigation she conducted But it is a flawed and tainted report. Accordingly, we declare that the report should be set aside, and direct that any copies of it in the grievor's personnel or corporate file be destroyed The Duty to Act Fairly and Mr. Lewis In our view, Mr Lewis was subject to a duty to act fairly, and we find that he did, in fact, act fairly As already noted, the content of this duty will depend on the circumstances of each particular case The union took issue with his "failure" to grant the grievor an adjournment on February 5, 1992 It should be noted that the grievor and his counsel could have requested an adjournment in advance No such request was made A request was made on February 5, 1992 At that time, the grievor's counsel was invited to take some time, if she wished, to consult with her client. She testified that she decided against doing so, and the meeting proceeded with her consent. While some other decision-maker might have acted differently in responding to the adjournment request, that is not the issue before us. The issue is whether Mr Lewis breached his obligation to act fairly, and we find that he did not. He was entitled to determine the procedure to be followed, and we find that the procedure which was followed was appropriate to the circumstances and completely fair The meeting proceeded with the consent of the grievor's counsel Moreover, the meetin9itself was conducted fairly Each and every one of the allegations was put to the grievor, and he was given a full and unrestricted opportunity of reply By and large, he denied the allegations at this meeting, just as he denied them in the proceedings before this Board The .' .. 174 conclusion is inescapable nothing would have been gained by an adjournment had one been granted It is true enough that a document we have found to be flawed was used at this meeting, but we cannot find that in using it any fairness obligation was breached Mr Lewis testified, and we accept his evidence, that he did not, in using the document, accept as true the allegations and findings found therein The purpose of putting the allegations to the grievor was to test his credibility and to provide him with an opportunity to set out his version of events. Moreover, whatever else can be said about Ms Desjardins' report, it did accurately convey the specific allegations underlying Ms Delorme-Leclair's sexual harassment complaint Obviously, the dynamic of the February 5, 1992, meeting changed when Mr Lewis was advised of Ms. Hutchinson's voluntary statement. Allegations of racism are as important as allegations of sexual harassment, and when the former is said to be the motive for the latter, one will naturally take pause to consider this evidence In our view, it was open to the employer at that time to have granted an adjournment. Out of an abundance of caution, and given the seriousness of the claim, one probably should have been granted However, we cannot find in the circumstances of this particular case, where we, too, have found the genesis of the voluntary statement highly questionable, and the credibility of Ms Hutchinson even more so, that the decision to disregard everything Ms Hutchinson said was an unreasonable one Whatever can be said about that decision, the making of it did not breach any fairness obligation to the grievor Other Possible Breaches --- During these proceedings, and in union argument, mention was made of the 175 I ., fact that the employer was involved in the initiation of the complaint, and the suggestion was made that this was wrong. Depending on the circumstances, there may not be anything wrong with a member of management actively encouraging an employee to file a sexual harassment complaint. In our view, management has an obligation, if it is presented with reason to believe that sexual harassment might have occurred, both to investigate and to notify any possible complainants of the existence of the Sexual Harassment Policy, and of their rights under that policy Obviously, every such case need not, and probably should not, result in the filing of a complaint and the commencement of a formal investigation. Whenever possible, less intrusive measures are to be preferred, consistent, of course, with the gravity of the allegations present in particular cases. As already noted, one of the purposes of the Sexual Harassment Policy is to be educative in nature) and this fact should be kept firmly in mind in devising an appropriate managerial response Above all, common sense should prevail throughout. Having said all that, we are of the view that the employer, in this case, acted completely properly in seeking further information about Ms Delorme-Leclair's allegations and in bringing the Sexual Harassment Policy to her attention Having heard all the evidence surrounding the filing of this particular complaint, we find nothing untoward in the employer's actions in this case Members of management, in this case, on learning the circumstances surrounding the ending of Ms. Delorme-Leclair's secondment, quite properly put her in touch with an adviser What evidence there is of management suggestions respecting the filing of the complaint indica.tes that these suggestions) such as they were, were entirely appropriate The complaint was hardly coerced ", 176 t It should also be noted that there is no requirement in the OPS Sexual Harassment Policy, or in the Guide attached to it, to resolve sexual harassment complaints informally, although that is one option available to employees making a complaint. The employee concerned also has the option of filing a formal complaint, and Ms Delorme-Leclair was perfectly entitled to do so in this case Conclusion As indicated at the start of our reasons for decision, the grievances alleging unjust dismissal and discipline, and discrimination on the basis of race, are dismissed. However, and a indicated above, we find that the grievor was owed a duty of fairness, and ,we find that he was deprived of this entitlement. We therefore direct the employer immediately to remove and destroy any copies of Ms. Desjardins' report from the grievor's personnel and corporate files. As we have found that the grievor did, in fact, sexually harass Ms. Delorme-Leclair, this is not an appropriate case to grant to the grievor, because of this duty of fairness breach, any further relief ,~ 177 DATED at Toronto this 24th day of April 1995 t1t/ /1-- -- ----- ~Plan, Vice-Chair . -------- J C. Laniel, Member 0 ~ --/ , -- ~ ~-- /