HomeMy WebLinkAbout1984-0428.Tyler.85-05-31 Decision
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ONTARIO
CROWN EMPLOYEES
GRIEVANCE
1111 SETTLEMENT
. BOARD
180 cx.NlAS STREET wEST, TORONTO. ONTAArO. MSG IZ6 -SUITE 2100 .
TEl.EPHONE' ~16/Sge. 0668
IN THE MATTER OF AN ARBITRATION
Under 428/84
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE.SETTLEMENT BOARD
Between:
OPSEU (Wayne Tyler)
Grievor
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The Crown in.Right of Ontario
(Ministry of Community and Social Services)
Employer
Before:
K. P. Swan
S. Hennessy
P. Camp
Vice-Chainnan
Member
Member
For the Grievor:
Mr. P. Cava1luzzo
Barrister and Solicitor
For the Employer:
Ms. R. McCu 11 y
Counsel, Legal. Services Branch
Ministry of Community and Social Services
Hearing:
September 17, 19, October 1, 2, 1984
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This matter, which was heard over four hearing days, and
has subsequently been the subject of much anxious deliberation by this
panel of the Board, involves the grievance of Mr., Wayne L. A. Tyler
against his discharge, effective April 19, 1984. from his position
with the Ministry of Community and Social Services. The case raises
a number of difficu+t procedural and evidentiary issues. It also
poses a particularly complex problem of fact-finding and decision-
making. a problem which is exacerbated by the history of Mr. Tyler's
employment relationship with the Ministry.
That employment'relationship has been the subject of two
, previous decisions by this Board. and a further decision by the
Ontario Public Service labour Relations Tribuna.l. While certain
submissions were made to us by counsel as to the inferences we
might draw from. and the use to which we might put, the decisions
of these other adjudicative bodies. we leave aside all such issues
at the outset. and propose to review the history merely to put our
present decision in context. We think we are entitled to take
cognizance. to the extent that they are relevant and helpful, of
the decisions of other tribunals dealing with matters between the same
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two parties. Were authority required for that proposition, it may 'be
found in Re Tandy Electronics Ltd. and United Steelworkers, et
!l (1980), 300.R. (2d) 29 (Ont. Div. Ct.) and Re City of Toronto
and Canadian Union of Public Employees, Local 79 (1982), 35 O.R. (2d)
545 (Ont. C.A.). As will be seen, these earlier decisions have had
very little influence on the decision-making process in the. present
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case, but they are valuable for the purposes of providing. a context
within which the evidence in this arbitration may be understood.
The grievor was first employed by the Ministry in August,
1962 in the Toronto offices. He was subsequently transferred to the
Georgian Bay District Office in Barrie as a Field Worker, and then,
in January, 1979, proceeded on a temporary transfer to the Waterloo
District Office to replace an employee who was absent due to illness.
While at the Waterloo office, he was appointed to a permanent position
as Wel fare Field Worker 1, commencing on . March 5, 1979. . At all material
times, he was employed in that capacity and at that location.
The Waterloo offices of the Ministry are located at a
shopping mall called IIWaterloo Square"; the Ministry's offices are
in an attached office tower, and occupy several floors.. During
the summer of 1982, the police authorities had authorized a surveillance
on a washroom in the basement of the. Waterloo Square mall, apparently
because of suspicions that acts constituting gross indecency under
the Criminal Code were being committed there. In the course of that
investigation, charges were laid against a number of people,. including
two counts of gross indec~ncy against the 9rlevor~ The charges ..
were laid in September. 1982; the charges were proceeded with by
indictment. and the grievor was convicted on both counts on Aprii 26,
1983, for which he.was given a suspended sentence with two yearsl probation.
It appears that the grievor has had one previous. conviction for a similar
offence, for which a. fine was imposed in July, 1975.
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The fact of the charges being laid against the grievor. and
the circumstances of those chargest came to the attention of the
Ministry very shortly after the charges were laid. Of particular
concern to the Ministry was the fact that one of the two. persons
with whom the grievor was accused o~ having engaged in acts constituting
....,... gross indecency was an adult client of the Ministry.. Pending
investigation. the grlevor was suspended on October 1, 1982, and he
was subsequently dismissed effective that date when the investigation
.w~~ completed. The grievor fi1ed a total of four grievances relating
to these matterst which came before the Grievance Settlement Board
in an arbitration which was heard during the surrmer and early autumn
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of 1983. The.award of the Board, reinstating the grievor with a one-
year suspension and upon certain conditions re1ating to psychiatric.
care, was issued on January 23, 1984. We think it is important to
observe that we have no jurisdiction to alter, or affect in any way,
what the other panel of the Board decided in the previous arbitration
proceedings. Because the a 11 egations which are before us now are of a
nature very similar to the allegations which were before the previous
Board. the employer's submissions included an element of asking us to
reconsi~er part of what had been done before; we declined flatly to do
so.
On the'other hand, it is important to observe the
precise basis on which the ather pane1 made its decision, since
the employer's case before us is at least partly to the effect that
the conduct alleged before us is precisely the conduct which, in
the view of the other panel of the Board. would have justified
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upholding the discharge in the earlier arbitration if such conduct
had been proved before them.
It is probably dangerous to attempt to abbreviate the
reasoning of the other panel in the first arbitration but, for
purposes of brevity, some excerpting of those reasons is necessary
here. The essence of the reasoning by that panel is found on pages
20 and 21 J and the parts of that .reasoning here material are as
follows:
IIFrom all of the foregoings the Board must conclude
that the gravity of the conduct is not of the magnitude
that it was viewed by his employer. This Board has
concluded on reviewing all of the evidence that the
employer based its actions primarily upon the
relationship of the Grievor and Barry Shea being one
which continued after Barry Shea had been a client. .
of the Ministry. If.the employer had been able to
prove much of the factual basis upon which it arrived
at its decision to discharge the Grievor, then the
decision of this Board might well be different. .On
the basis of what has been proved, the decision of
this Board can only be that discharge is not warranted.
.ItHaving reached the foregoing conclusion, the
gravity of the Grievor's conduct as proved must be
placed in perspective. He misused his employer's
time, using it to solicit sexual contacts away from the
place of employment. On at least one occasions a
successful contact had been made and was followed up
by a washroom leased by th~ employer. In using the
washroom for washroom sex, there was a misuse of the
facilities provided to the Grievor by his employer.
His activities being carried on in a public place
are in violation of the Criminal Code of Canada
and have resulted in convictions. The conduct is
grave. Though it primarily occurs away frcm the
work-place, it is a situation warranting. the
employerfs intervention as previously found.
The conduct is not so grave as to warrant discharge.lI
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"As can be seen, the essence of the allegations before the
other panel of the Board in the earlier arbitration.was that the
grievor had engaged in sexual activity with a cl ~ ent of the Ministry.
While this sexual activity was alleged to be consensual, the Ministry's
clients are, for a number of reasons, persons particularly susceptible
and sensitive who, in the Ministry's view, require protection far
beyond what is appropriate for the rest of the adult population. The
crux of the decision of the first panel is, however, that the allegation
that the grievor had sex with a client of the Ministry was not proved,
whi.le one of the two persons in respect of whom the grievor was
convicted of gross indecency was a cHent of the Ministry' by the time
of the arbitration hearings, the Board found that the entirety of the
sexual relationship between the grievor and that person occurred
before the person became a client of the Ministry, indeed while he
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was still a juvenile, and thus that the central allegation made
by the Ministry had not been proved. While the Board undoubtedly
considered the aspects of.the grievor's conduct which had been proved
to be very serious and deserving of serious disciplinary action,
the Board was unwilling to uphold the discharge in the absence of
proof of the employer's central allegation.
We think that we can fairly take notice that the award of
the Board in the first arbitration was controversial, and a m~tter
producing considerable comment and criticism in the press and in the
Legislature. Evidence was before us of newspaper reports of certain
observations of the Minister late in February, 1984, expressing
dis~atisfaction with the decision and stating certain intentions
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relating to the grievor's future employment with the Ministry. For
our purposes, it is sufficient for us to observe that the matter of the
gr1evor's reinstatement received a considerable amount of public
attention late in February and early in March, 1984.
Before returning to the matter before us, which arises
directly from that public controversy, it is .appropriate to note
briefly that the implementation of its award was referred back to
the same panel of the Grievance Settlement Board for clarification,
and a clarification was issued on July 17, 1984.
In the meantime, .observations made publicly by the Minister
became the subject.of an application to the Ontario Public Service
Labour Relations Tribunal, culminating in a decision dated August 31,
1984, to the effect that the employer and the Minister had violated
sections 29(2)(c) and 29(3} of the Crown Emplovees Collective Bargaining
Act.
To return to the events of. early March, 1984, the wide publiC
attention given to the reinstatement of the grievor and the nature of
the allegations. against him had an effect which, as witl become clear~
eventually resulted in the proceedings now before the Board. On
March 9, 1984, a Client of the Ministry, ~hom we shall refer to only
as "Mr. F.II for the purposes of protecting his own privacy and the
confidentiality of his relationship with the Ministry, attended at
the offices of the Ministry in Waterloo and made certain furth~r
allegations against the grievor which led Ultimately to his discharge
on April 19, 1984. The grievance against that discharge is now
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before us for resolution.
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We have obser~ed that the allegations made by Mr. F. against
the grievor were of the same nature as those made at the time of his
first discharge. For this reason, Mr. Cavalluzzo, on behalf of the
union, moved at the outset of the hearing that the proceedings before
us ought to.be conducted behind closed doors, and that the public and
the press ought to be excluded from the hearing. In Mr. Cavalluzzo's
submissions, the interests of privacy and confidentiality outweighed
the interest of the public in having access to the proceedings
bEfore the Board. On the one hand, the privacy and human dignity
of the grievor required protection from further public.comment and
consequent opp~obrium in relation to his past sexual behaviour. On
the other hand. Mr. F., as a client of the Ministry, has a confidential
relationship with the Ministry which ought not be disclosed in pUblic
in detail. In light of these strong arguments for privacy, Mr.
Caval1uzzo argued that the case did not raise an issue of significant
public importance sufficient to overweigh the privacy concerns involved.
Ms. McCully, on behalf of the employer, tn effect took no position on
the motion to close the hearing.
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The Grievance Settlement Board has dealt with the matter of
public hearings in the past, in an award written by the present
Vice-Chainman, Ralph. 212/78. In Ralph, the. provisions of section 9
of the Statutory Powers Procedure.Act were considered, along with the
reasoning in a number of cases ;n which this matter has arisen. In
) addition to the jurisprudence considered in Ralph. the union also
referred us in the present hearing to Re Bellemare and Treasury Board
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(Department of Manpower and Immigration), 166-2-2341, a decision of
the Public Service Staff Relations Board. In our view, the Bellemare
case does not really detract from the reasoning of this Board in the
Ralph case. That reasoning is crystallized in the following paragraph
from page 4 of that decision:
"Apart from precedent, however, we think that in principle
a heavy onus lies on any party who wishes to close a
hearing of a statutory body like this Board. It is the
hallmark of procedural fairness that justice manifestly
be seen to be done. That can only occur if the public
and the press have full access to the proceedings; the
best safeguardagainst'the arbitrary use of power or
merely careless injustice is the full light of public
scrutiny. Public hearings can have their costs, of course,
but those costs must be particularly heavy to overweigh
the primary public interest in openness."
Whatever may be the effect of the Charter of Rights an~
Freedoms on this issue, we think that the reasoning in the Ralph
case, when applied to the facts before us, leads inexorably to the
conclusion that the hearing should take place in public. and that was
indeed our rul ing at the time. In respect of Mr. F., he was a
complainant who had apparently willingly undertaken to give evidence
against the grievor. and there is at least a strong presumption that
a person in this position has no further interests of confidentiality
to protect. As we shall observe; however, Mr. F. suffers from certain
disabilities; these disabilities are the reason for his status as
client of the Ministry. We therefore requested that members of the
press present at the hearin~ not publish Mr. F.1s full name, and. all
the journalists present undertook to take every precaution that he not
be identified in public. So far as we know, those undertakings were
fully complied with.
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In respect of the grievor, the nature of the allegations
made against him by Mr. F. have already been published in .the press,
along with the history of the criminal charges against him and the
allegations which were before the Board in the previous proceedings.
The grievor, regrettably, really has :very little reputation left
to protect at this point, and we were not convinced that it would
really be in his own best interests to have the present hearing
conducted in private.
Much more important, however, is the public interest in
this matter, which we think is much stronger than as portrayed by
Mr. Cavalluzzo. This Ministry provides services of a number of
different kinds to a broad population of persons who suffer from various
disabilities and disadvantages, which in some cases render the~.more
or less vulnerable to the employees of the Ministry, upon whom they
rely for fair and sympathetic application of the legislation providing
them with assistance which they need, often desperately. Because
the allegations in the present case are to the effect that the grievor
misused his position in respect of a client of the Ministry, a person
who was at .the material time dependent upon the grievor for
assistance provided to him by the Ministry, there is a serious,. even
overriding public interest in the outcome of this decision. In our
view, in those circumstances, the public has an undeniable right to
know that the proceedings in which such an allegation is tested and
disposed of are fair, open and subject to public scrutiny. For
these reasons, therefore, we concluded that thQ hearings should take
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place in public, and that is how we proceeded.
.Before turning to the evidence in this matter, there is one
more factor which ought to be considered, since we made rulings on
several occasions in the course of the hearing in. relation to this
very important evidentiary issue. Mr. F., who is the only direct witness
in respect of the allegations which he made against the grievor,
suffers from certain disabilities which have led to his becoming a
client of the Ministry. In 1980, his disabilities were diagnosed by a
physician on,behalf of the Ministry;. the primary diagnosis was major
epilepsy, with a secondary diagnosis of mental retardation and a tertiary
diagnosis of a personality disorder. At times in the past, his
condition has led to outbreaks of physical viol~nce and he has spent
some time in jail, living for a period in the psychiatric correctional
facility at Penetanguishene. Shortly before the hearing, his mental
functioning was assessed at borderline normal, and the aggressive
aspects of ~is personality disorder appeared to be entirely under
control.
Apparently anticipating that the capacity of Mr. F. to give
credible testimony would be challenged before us, the employer offered
certain evidence which was promptly challenged by the union. The
evidence was of two different, but related, kinds. first. the employer
called a teacher, Ms. Helen Dahmer, who has taught Mr. F. at a high school
educational program for adults since early 1984. ,It appears that the
intention in calling Miss Dahm~r was to ask her to give evidence to
the effect that Mr. F. was of good character, credible, and unlikely
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to lie in the course of the arbitration proceeding.
The second kind of evidence was offered through Or. Donald
Zarfas, Professor of Psychiatry and Paediatrics at the University .of
Western Ontario, a psychiatrist with nearly thirty years experience
in mental retardation. At the reques,t of the emp1oyer, Dr. Zarfas
had met with Mr. F. prior to the hearing, and was also called to"
testify to the effect that Mr. ~was capable of giving credible and
truthful evidence at the hearing.
As we have observed, Mr. Caval1uzzo objected to the evidence"
of botn these witnesses. We agreed immediately in respect of
Miss Dahmer, who was stood down before giving the evidence which she
was called to give. In our view, evidence of this sort. character
evidence called before there has been any challenge to the character.
of a witness. is best characterized as "oath-helpingll. The credibility
of a witness is not to be assessed .by reference to the number of persons
who can be brought forward to testify as to his or her good character and
likelihood to tell the truth; the ureal test of the truth of the story
of a witness .... must be its harmony with the preponderance af the
probabilities which a practical and informed person would readily
recognize as reasonable in that place and in those conditions."
See Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.). quoted with
approval in Phillips, et al v. Ford Motor Company of Canada Ltd. et al,
(1971). 18 O:L.R. (3d} 641 (Ont. C.A.). Moreover, the task of
assessing the credibility of a witness is placed by the 1aw so1ely
upon the tribunal hearing the evidence under oath. If we were to
permit other persons. however familiar with the witness. and however
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well-meaning, to make a decision of credibility for us, we would be
abandoning our own jurisdiction. in this respect.
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In our view, the calling of Miss Dahmer by the.employer was
" based upon the faulty conclusion that, because Mr. F. suffers from
disabilities of a mental and emotional kind, his evidence ;S in, .'
some way suspect. In fact, we think that both the law and comman
humanity militate against such a pos'ition. Persons suffering from
mental incapacity or handicap of one sort or another are often called
upon to give testimony under oath, if;they are the best witnesses
to events which are relevant to a particUlar proceeding. Once it is
admitted that a particular witness is not incapacitated entirely from
giving evidence, as was .admittedin the case of Mr. F. before us, the
presumption is that a witness will te~l the truth, and that a mental
disability is irrelevant to the likelihood of a witness to tell the
truth unless it is affirmatively demonstrated that the opposite is
the case. We think it would be a shocking and tragic state of affairs
if the law required an affirmative demonstration of the credibility
of a witness merely because the witness suffered from a mental
disability, and we are satisfied that indeed the law requires no
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such thing.
Such a conclusion was reached by one of our sister tribunals,
. the Public Service Grievance Appeal Board in. the frovince of Alberta,
in Re Government of the Province of Alberta and Alberta Union of
Provinciai Employees, (1983) 8 L.A.C. (3d) 1 (T.A.B. Jolliffe),
.) adopting the following passage from Wigmore on Evidence, second edition9
(Chadbourn revision), vol. IV (1972), at p. 233, a passage also
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adopted in R. v. Clarke (1981), 63 C.C.C. (2d) 224 by the Alberta
Court of Appeal:
IlGood character for veracity is as relevant to indicate
the probability of truth telling as bad character
for veracity is to indicate the probability of the
contrary. But there is no reason why time should be
spent in proving that which may be assumed to exist.
Every witness may be assumed to be of normal moral
character for veracity, just as he is assumed to be of normal
sanity. Good character, therefaret in his support is
excluded until his character is brought in question
and it thus becomes worthwhile to deny that his
character is bad.1I
The Re Government of the Province of Alberta case dealt witht
in fact, the use of psychiatric evidence to support the likelihood t~at
a witness would tell the truth. We did not exclude the evidence of
Dr. Zarfas. but rather permitted him to testify, and a substantial amount
of evidence was of assistance in assessing the relationship between
Mr. F. and the grievor at the material times. On the other hand~ to
the extent that Dr. Zarfas was asked to give an expert psychiatric.
opinion as to the likelihood that Mr. F. would tell the trutht we
think that such evidence would ordinarily be excluded by the same
considerations as have been discussed above. As. it happens, however,
Dr. Zarfas. evidence was given after Mr. F. had testified, and after a
number of particular problems in Mr. F.'s testimony had arisen.
We therefore think that there is some justification for considering
the evidence given by Dr. Zarfas in light of those dif~iculties.
In making that concession, however, we must stress that we think that
we must make. the credibility decision by ourselves, and any observations
by Or. Zarfas to the effect that Mr. F. was likely or not likelY to
be credible must be given no weight.
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We turn, finally, to the allegations made by Mr. F.. the
interaction of various officials of the Ministry with Mr. F. and
with the grievor, and to an assessment of the merits of the present
9rie~ance. . The allegations with which we are here concerned first came
to the attention of the Ministry, as we have already observed, on
March 9, 1984. On that day, Mr. F. attended at the Waterloo office
of the Ministry, and asked to see the Area Manager. Since the Area
- ) Manager was then a bsent from the. offi ce, he was directed to Ms. Kay
Remple, who was at that time Special Projects Officer in that office,
and deputized for the Area Manager in her absence. .Ms. Remple had
never met with Mr. F. before~ and thus had no familiarity with .his
relationship with the Ministry or his former status as a client at the.
Waterloo office.
Mr. F. informed Ms. Remple that in the past he had been a client
of the Waterloo office, and had been directly involved. with the grievor.
in the latter's capacity as a Field Worker. This involvement, which the
Ministry's records .indicate lasted from December, 1978 until June
1981, took the form of a number of visits by Mr. F. to the Waterloo
office, at which time he was interviewed in relation to certain.
prob1ems which he was having. On a number of occasions, that interview
was conducted by the grievor.
Mr. F. told Ms. Remple that he had been reading newspaper
articles about the controversial reinstatement of the
grievor, and that he understood from those articles that the grievor
might be reinstated as a Field Worker in the Water100 area. This
possibility apparently caused him some concern, and he expressed
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the feeling that "if the first young man had been brave enough to
come forward, he felt that he too should be responsible enough to come in
and tell his story", an apparent reference to the fact that another
client of the Ministry had testified against the grievor in the first
arbitration proceedings.
Mr. F. then told Ms. Remple. in her evidence in a very
painful way. that he had been "approached" by the grievor in his office
'in the Ministry's premises in Waterloo. When she pressed for details,
he told her that the grievor had called him into the Ministry's premises
to discuss a cheque which had been lost and that.when he had arrived.
the griever had invited him into a private office. There the grievor
locked the door and, during the course of talking to Mr. F., moved
his chair close to Mr. F.'s and placed his hand on Mr. F.'s thigh.
Mr. F. told Ms. Remple that this conduct was repeated on other -
occasions while the grievor was his Field Worker, and from other
consultations, Ms. Remple placed this during the summer of 1979.
It is clear from the totality of her testimony that Mr. f. did not
indicate to her exactly when these incidents had taken place.
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Ms. Remplp. testified that she felt that Mr. F. was
being very guarded, and that there was more to the story, but although
she pressed him a number of times as to whether anything else had
happened. he told her that was the totality of the events. The
interview thus terminated, and Ms. Remple passed what she had learned
on to the Area Manager, Mrs. Stephenson, upon her return to the office.
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Mrs. Stephenson, who had been the person who had
decided upon the grievor's first dismissal, asked the Ministry's
investigation unit to undertake an inquiry into the a11egation~ made
by Mr. F. The investigation was handled personally by the Manager
of the Unit, Mr. John Packer, who interviewed Mr. F. on three occasions,
inspected the physical premises of the Ministry's offices, and
interviewed a large number of other persons, including two fellow
emplpyees of the grievor,.a number of friends and professional advisors
of Mr. F., and some 58 previous clients of the grievor from his period
as a Field Worker in Waterloo. The nature of Mr. Packer.s investigation
led to some~ifficulties in the admissibility of his evidence at the
hearing. After much discussion, we ruled that we would not receive
evidence from Mr. Packer which was simply hearsay, from persons who
. would not be called as witnesses. Given the seriousness of the
allegations in this case, and the questionable probative value of
statements made by persons not under oath and not available for
cross-examination, filtered through an investigator in the course of
a long and detailed investigation, we thought that it would be
improper to consider evidence of that sort. Unfortunately, it appears
that counsel for the employer misunderstood our ruling and felt that it
also included a refusal to receive evidence of.the nature of the
complaint put by Mr. F. to Mr. Packer. As a consequence~ we have no
direct evidence. as to what Mr. F. told Mr. Packer) nor at what
stage in Mr. Packer1s relationship with him he told the story which
he told before us on oath) a story which is significant1y different
from the one which he originally told ~s. Remple. and makes much more
.serious allegations against the grievor.
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When Mr. Packer's investigation was completed, he reported
his conclusions to Mrs. Stephenson, who then called the grievor
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in for a meeting, The meeting was originally scheduled for April 9th,
1984, but it was adjourned at the grievor's request until April 13,
at which time he appeared with Mr. Cavalluzzo and representatives
of the union. The only minutes of that meeting were prepared by
Mrs. Stephenson and, in her own words, she "drafted and re-drafted
them so I was absolutely clear", a process which was only completed
very shortly before the hearing. The result, unfortunately, is that
those minutes are virtually useless for the purposes of our deliberations,
since they are written not as an objective discussion of what was said
but as a justification for the action subsequently taken. That action,
the dismissal of the grievor. was effective April 19~ 1984.
We now turn to an assessment of the evidence of the two
principal witnesses in this matter, Mr. F. and the grievor. It
should be said at the outset that the latter has denied. these allegations
from the beginning. and continued to deny them in his sworn testimony
before us. We shall then make our assessment of the state of the
evidence, and the extent to which it satisfies the onus resting on the
employer to prove that it had just cause for the disciplinary action
which it took against the grievor.
Mr. r. was. at the time of the hearings, 31 years of age,
of European birth but with no identifiable difficulty .with English as
a spoken language. He is single, and at th~ time of the hearing lived
with his parents in Cambridge. Because of his disabilities, which have
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been identified above. he has been a client of the Ministry since 1971.
The Ministry's records indicate that he had contacted the grievor in
the grievor's capacity as a Field Worker on a number of occasions
between 1979 and 1981. and that contact is not disputed. Despite his
disability, Mr. F. was able to give his testimony with reasonable
clarity, although on a number of occasions he had difficulty relating
his answers to the questions actually asked, and he occasionally
engaged in digressions from the line of questioning to make a point
which was not directly relevant to the matters here at issue.
In his direct examination, Mr. F. mentioned again that
his reason for coming forward was directly related to the publicity
which the grievor's reinstatement had received in the press. He
also referred again to the courage displayed by the complainant
in the first arbitration in caming farward~ and said that he felt that it
was his responsibility to ceme and tell his own story.
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His story includes six separate incidents of contact with
the griever. On the first occasion. he simply met the grievor
and nothing untoward happened. On the next four incidents, he alleges
improper conduct, ranging from relatively trivial to extremely serious.
on the grievor's part. . On the last incident, he says that he demanded
that his file be transferred to the Cambridge office because of his'
distaste for the grievor and his unwillingness to continue to be
involved with him. There exists an objective record of Mr. F.'s
visits to the Waterloo office, in the form of the case hi.story sheet
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kept. at the office on a printed form and filled out by a number of
employees from time to time, including the grievor. At this point,
. it should be said that the document indicates the possibility of
more contacts than the story told by Mr. F. identifies, but the
document is not perfectly clear whether a contact was made in person
on the Ministryls premises, or by telephone or by a third party on
behalf of the client. It should also be said that Mr. F.'s recollection
of the events is somewhat confused and that it differs in a
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number of aspects from the entries .in the case entry sheet.
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The first untoward conduct by the grievor identified by
Mr. F. took place on his second visit to the Waterloo office,
approximately six months after he first visited on the occasion
of the transfer of his file from the Cambridge office. The conflicts
between Mr. F.1s evidence and the Ministryls records make it impossible
to identify when this might have occurred, except that it was probably
in June of 1979. He suggested that. the reason for the visit had
been to lOOK into a cheque which had. been lost because of his change
of address, and an entry relating. to a similar matter appears in the
Min.istry's files on June 4, 1979. On that occasion, Mr. F. says that
the grievor met him in a private office, where he IIflirted with his
beltll, undoing, re.arranging and doing up the belt again. He also says
that the grievor's fly zipper was slightly undone. At some time during
the conversation, Mr. F. says that the grievor laid hi? hand on Mr.
F.'s'left thigh, a contact which Mr. F. found objectionable. F.inally,
Mr. F. says that the grievor touched him on his buttocks as he was
leaving, perhaps. accidentally. Despite some embellishments, this is
very similar to the story which Mr. F. told Ms. Remple on his first
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visit to the Ministry's premises to make a complaint in respect of
the grievor.
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The third visit about which Mr. F. gave evidence also
related to a change of address, although the addresses which he .
identified are completely at odds with the Ministry's records.
On this occasion, again, Mr. F. says that he met with the grievor
in the grievor's office, but this time the grievor locked the
door once he was inside, by pushing a button lock in the centre of the
door knob. He says that he was uneasy throughout this interview
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because the grievor "began to be personal with me, verbally, at
firstll. At some point in the interview, Mr. F. says that the grievor
then undid his trousers, masturbated and ejaculated on the floor.
. He told Mr. F. that whatever happened in the office was between the two
of them and was not to go outside the office. Mr. F. describes his
own reaction to this as embarrassment, upset and fear. He felt that
he was being intimidated, and that he was in .danger of being physically
harmed and sexually molested. He was eventually shown out of the office.
however, without any harm being done to him, and witho4t the grievor
making any attempt to touch him or to suggest that he engage in any
kind of sexual activity with him. He admits that he took no steps
to report this incident to anyone, but says that was because he was too
fearful to do so.
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The fourth occasion of which Mr. F. gives evidence relates
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to the issuance of a replacement cheque. The only occasion shown in
the Ministry's records on which this might have occurred was immediately
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following a trip to Europe, prior to which Mr. F. requested that his
cheques be held until his return. Mr. F.~ on the other hand~ identifies this
as having occurred before his trip to Europe. On this occasion, Mr. F.
identified no sexual activity, but s~ys that the grievor resented
reissuing the cheque, and was not. very pleasant to him.
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Upon his. return from Europe, Mr. F. says that he went back
to re-apply for family benefits and, again, had to discuss the
matter with the griever. It appears from the Ministry's records that
no such application for reinstatement of family benefits was
necessary orin fact made, but that there was a visit immediately
after Mr.F. IS return from Europe which appears to have related to the
reissuing of a cheque. On this occasion, Mr. F. says that
the griever partially removed his trousers and masturbated,
once again, to ejacu1ation. Mr. F.1s description of this incident
is very much like the description of the previous incident~ including
the locking of the door, and bis own essential passivity during
the grievor's act. Once again, he was not sexually touched by the.
grievor~ he was not asked to participate in any sexual behaviour,
and he. did not report the incident to anyone else.
Finally, Mr. F. says that he returned to th~ griever's
office one final time to state that he was going to ask to have
his file transferred to the Cambridge office. Mr. F. says that
the grievor became angr~ and said that if Mr. F. did- not follow the
gri~vor's advice, he would be sorry. In essence, Mr. F. testified
that the griever was unwilling to see him transfer to the Cambridge
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office, and that he felt intimidated by his conduct on this occasion
as well.
Mr. F. was subjected to a long, searching but essentially
gentle cross-examination by Mr. Cav~lluzzo. During this cross-
examination, he sh~wed a'considerable amount of discomfort at being.
questioned about his story, and the contradictions and inconsistencies
; ~ alluded to above, which punctuated his evidence-in-chief, were
much exacerbated. Leaving aside the minor details, Mr. F. made a
number of important admissions, and e~gaged in one vital contradiction,
that must be taken into account in our deliberatations.
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Even more important, however, is the fact that in the course
of cross-examination. Mr. F. agreed with Mr. Caval1~zzo that the events
of which he had given evidence-in-chief had"not occurred. When
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pressed in respect of one of two oc:asions on which he claimed the
grievor had masturbated in front of him, he finally said that he had
only tucked his shirt into his trousers and re-adjusted his belt, and
that was the totality of his conduct on that occasion. When pressed
in respect of the other occasion of masturbation, he became extr~mely
defensive and suggested that it was worthless to continue with the
hearing and not worth pursuing the matter. In the course of cross-
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examination, on a number of occasions, and after consideration, Mr.
F. answered Mr. Caval1uzzo's questions whether these events had
really happened with a negative response. On one occasion, moreover,
a negative response came in connection with a discussion between
Mr; Cavalluzzo and Mr. F. of the importance of telling the truth
while under oath. Mr. F. appears to be a very religious person, and
he appeared to suffer some considerable 4iscomfort aboutthis-m~tter.
On re-examination, Ms. McCully specifically asked Mr. F. why
he had told one story on examination-in-chief, and denied the
essential elements of it on cross-examination. His response was
. that he had spoken out of fear on cross-examination on one occa~ion,
and on another occasion he had given a false answer simply to see
what would be the response. He insisted that his original story was
true, and that the events of which he had spoken on examination-in-
chief in fact occurred. On the other hand, although pressed by both
counsel to indicate whether he had told Ms. Remple the same story
which he had subsequently told Mr. Packer and to the Board in
evidence, he became very confused and seemed to suggest that he had
in fact told Ms. Remple the entire story from the beginning, although
he admitted that he.found the experience embarrasssing.
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Finally, Mr. F.'s testimony indicated a considerable
amount of confusion. frustration and fear of homosexuality.
We draw no particular conclusions from this; we think that a Board
in our position should avoid the temptation to engage in.psychological
speculation for which we have no exp~rtise. What we can conclude,
however, is that Mr. F. displayed a very considerable negative
reaction to the grievor arising directly from the reports .in the
newspapers which he had read shortly before his complaint in the Waterloo
office. Until that time, he said, he had never suspected that the
grievor was a homosexual. When it was suggested to him that the conduct
which he had attributed to the grievor some five years ear1ier was
clearly homosexual in nature, he agreed, offering an explanation for the
discrepancy which related to his experiences in Penetanguishene some
years ago, apparently involving physical threats or coercion.
The grievor's evidence. in reply to the allegations made
against him by Mr. F., amounted essentially to a complete denial of
any impropriety wi th Mr. F.. . He remembered Mr. F. from the 1979 - 80
period, mostly.because he did report to the office rather more often
than other clients in his situation would haVe, because he appeared to
need someone to listen to him in respect of his personal problems. He
confirmed that he had met with Mr. F. on a number of the occasions
identified by Mr. F., always dealing with the specifiC difficulties
which Mr. F. wished to discuss. While.he.agrees that he had an office
tn which he might have met Mr. F.. he says that he shared that office
at all material. times with another Field Worker or employee of the
Ministry, who might be in or out at any time. The only reason which
he could give for Mr. F. now giving false testimony against him was a
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certain degree of unpleasantness about the delay in reissuing one
cheque to h1m, apparently after his return from his European visit
in 1979.
It will be obvious from the above discussion that
there are very serious difficulties 'tlith ;'ir. F. IS evidence. First,
there is the virtually unexplained delay of some five years between
the events which he alleges took place between himself and the
grievor, and .his complaint in 1984 to the Ministry. Second, there
iS,his own explanation for coming forward at the time when he did,.
an explanation which has about it an aura of self-aggrandizement,
an inference which was somewhat fortified by his demeanour at the
beginning of his own testimony.
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Most important, however, are the serious contradictions
in the story which he tells. At the very least, he told two
different stories about what occurred in 1979, one to Ms. Remple and
another, quite different and much more serious, to the Board at the
hearing.. Because of the misunderstanding by counsel about the
extent of our ruling about Mr. Packer's evidence, we do not know
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precisely what he told Mr. Packer and when, but even putting the best
construction on the situation from the employer's point of view, he
changed his story dramatically between his first interview with
Ms. Remple and his second with Mr. Packer. Mr. Packer attribut~d the
change in story to Mr. F. IS reluctance to speak of such matters in
front of a woman, and told us about.one occasion during his interviews
with Mr. F. when Mr. F. had suddenly stopped talking about his experiences
when a woman entered the room. Mr. F. himself was very vague about
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whether he had ever told Ms. Remple a different story and, certainly
did not offer an explanation like the one offered by Mr. Packer. Much
more tellingt ho~ever, was the fact that Dr. Zarfas, who had engaged
in a psychiatric assessment of the grievor on behalf of the M1n1strYt
identified no such specific reluctance to speak to women about his
problems. We think that we can reasonably take notice of the fact
that, in the course of the hearing, Mr. F. appeared to have no
difficulty in re1ating to uS the more extreme version of his dealings
with the grievor, under questioning on examination-in-chief from
Ms. McCully.
It would be reasonable, in a case li~e this~ to discount a
great deal of conflict in a witness' evidence because of the passage of
time. It would not be at all unreasonable for someone to forget the.
detail, and even become confused as to major issues, when the events
being testified to were a full five years before the occasion of
giving evidence. But the contradictions in Mr. F.'s testimony are
not contradictions of detail. Befo"re us) at the hearing) he completely
changed his story twice, once when cross-examined by Mr. Cavalluzzo and
. once when re-examined by Ms. McCully. Obviously, although he insisted
throughout on the minor allegations of sexual impropriety by the
grievor) his willingness to reverse entirely his testimony on the
major al1egatfons, depending on who was questioning him at the time,
casts very grave doubt.s on all of his evidence.
When we review, on the basis of the test of credibility set
out earlier in this award, the allegations of Mr. F., we find
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that there are very few objective circumstances to assist us in
accepting his evidence-in-chief over ~is evidence in cross-examination.
We have reviewed the case history sheet in minute detail~ and it
simply does not support in any material way the allegations in this
case. It indicates that Mr. F. had contact with other employees
of the Ministry than the grievor on a number of occasions throughout
the material period, and that if he had real complaints about his
treatment by the grievor, opportunities were available to him, in
confidence, to express his concerns. Moreover, the case history
sheets indicate that Mr. F. was suffering from some confusion on
various occasions. throughout this period. While some of those
notations are in the grievor's handwriting, and thus might be
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subject to a very tenuous suggestion that he was dissembling to
cover the unsavoury aspects of his relationship with thegriev-or,
a suggestion so tenuous that counsel for the employer did not attempt
to advance it, confusion is also alluded to by other employees of the
Ministry who had contact with him at this time. According to Mr.
r.ts own evidence, he was involved with a "crisis centre" on a
number of occasions during this p~riod, although he was not prepared
to tell us precisely what was involved.
Moreover, whatever can be g"leaned from the .evidence
relating to his transfer to the Cambridge office appears to suggest
that the transfer related only to his move to his parents. home in.
Cambridge. He dealt with other employees of the Ministry in respect
of this matter as well as with the grievor and the only conclusion
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that can be drawn is that there were perfectly und~rstandable
reasons for the transfer of his file that had nothing whatsoever to
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do with his alleged distaste for the grievor and his behaviour.
The only piece of evidence available of an objective nature
which tends to support Mr. F.'s story ;s his evidence that, when he
was improperly approached by the grievor in the grievor's office*
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the. gri evor locked the door to that off; ce by press; nga button in
the centre of the door knob.. There is some evidence before us from
Mr. Packer, among others, to the effect that the office which the
grievor occupied at that time had such a lock in the centre of the
door knob. There are problems with that supporting evidence, including
the fact that there is a considerable amount of uncertainty about
on what floor of the office tower the office was located, but
taken at its strongest, the evidence indicates that the grievor's
office had such a lock. However, we think that we can reasonably
take notice of the fact that the same type of lock is found on the
door knobs of a very substantial proportion of doors in modern
office buildings.
On the basis of this evidence, it ~as the employerls
submission that we should find that the griever had in
fact committed the offences of which' he was accused by Mr. F..
and his discharge should therefore be upheld. Ms. McCully, on
behalf of the employer, advanced a. number of arguments in support
of the proposition that in circumstances like those alleged,
discharge is the appropriate, indeed the only appropriate sanction.
We do not think that this proposition is in any doubt whatsoever, and
. we therefore will not pursue at any length the submissions of
counsel. We are convinced that those submissions are correct and that
if ~'1e found that .the grievor had cOrmlitted the offences alleged
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against him, such conduct would so have affected his employment
relationship with the employer as to incapacitate him from further
service with the Ministry.
This Ministry, perhaps not uniquely, but to a degree quite
different from many other branches of the Ontario Public Service,
deals with citizens, as clients, who are particularly susceptible
.in one way or another. The cl ients of this Ministry are, almost
by definition, disadvantaged in one way or another, and become
dependent upon the availability of the services offered by the
Ministry. Whether that dependency is predicated upon disability,
impoverishment or other misfortune, the dependency is very real,
and the protection required is very important. It would be intolerable
to continue the employment of anyone who used the position of
authority on behalf of the Ministry to take advantage of those clients,
whether sexually, financially, or in any other way. We thus have no
difficulty in accepting the main position af the Ministry, that if we
find that any part of Mr. F.'s allegations against the grievor are
well-founded, we should uphold the discharge.
The union argues that we should apply a very stringent
standard of proof to the employeris obligation to prove that it
had just cause for the disciplinary action here imposed. Mr. Caval1uzzo
observed that the Board has required proof on a "clear and convincing"
basis where dishonesty or illegality is alleged, on the basis that, the
more serious the offence alleged, the more direct must be the proof of
the alleged conduct. He referred us to Re Douglas and The Crown in
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Right of Ontario (Liquor Control Board of Ontario) (1981), 26 l.A.C.
(2d) 332 (Swinton).
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It isat this point. in our view, that the past history
of the grievor's employment record must be considered. In previous.
proceedings before this Board, before another panel. the grievor has
admitted an involvement during the period in question in casual
sexual encounters in public washrooms, including encounters with juveniles
involving prostitution. We think that these. admissions, while before
another panel of the Board, may reasonably be taken into account
before us, particUlarly since they were raised and not denied during
the grievor's own testimony. The extent to which proved or admitted
similar conduct on other occasions can be used to substantiate
allegations of the conduct now at issue, the.so-called usimilar
factI! problem, is a matter of some difficulty in the law. We were
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referred to R. v. Taylor (1982), 35 Q.R. (2d) 738 (Ont. C.A.), a
decision to the effect that homosexuality is not relevant to an
accusation of indecent assault where the accused had previously shown
no signs of aggressive sexuality. We are not satisfied that the
jurisprudence in criminal prosecutions is entirely applicable to the
case before us, since the standard of proof in arbitration cases is
different from the standard in.criminal cases) but more particu1arly
because the relationship between similar-fact evidence and the alleged
crimina' conduct was much more distant in R. v. Taylor than it is in the
present case.
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The evidence before us is that the grievor. at all
material times. was disposed to become invo1ved in chance homosexual
encounters with strangers, and that a number of those encounters
occurred during his working hours and in close proximity to his place
of employment.
But, particularly in a case like this, where the complaint
made by Mr. F. arose directly outof,the significant publicity given
to the grievor's conduct of this nature, we do not think that the
grievor's admitted or proved previous conduct can be in any way
conclusive of the validity of the present allegations. At the very
most, what this past conduct does is to remove from the grievor the
benefit of the somewhat higher standard of proof applied by arbitrators,
and this Board, in cases like Re Douglas, supra, where the conduct, if
alleged against anyone else. would clearly require proof to a standard
beyond the mere balance of probabilities ordinarily applied in civil
cases. In the case of the grievor, however, his past history removes
to a substantial degree the hesitation with which a decision-maker
would approach an allegation that he had engaged in conduct of the kind
here alleged. We think it is appropriate, therefore, to consider
this case on the balance of probabil Hies only; in the resul t, it would
be sufficient to upholdthe discharge if the employer were able to
convince us, in accordance with that test, that the conduct complained.
of by Mr. F. had in fact occurred.
Having regal"d to the evidence, which we have detailed
above, and to all of the surrounding circumstances, we are unable
to accept that the employer has made out its case. 1he circumstances
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of Mr. F.'s original complaint, including the delay before it was
made and the motivation which he himself expressed for making it,
raise some initial concerns about the probity of the evidence offered.
But what is much more important is Mr. F.'s evidence itself.
Presuming, until the opposite is. shoo/ll' that he is tell ing the truth,
the internal inconsistencies in his own evidence are virtually
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insurmountable. While anyone might have the kind of difficulty
that he had regarding dates, times and circumstances of meetings
five years previously to the allegations which he wished to make,
his inability to ten his story in the same way prior to. the hearing,
and his direct and complete self-contradiction on cross-examination
during his own testimony makes his evidence wholly unreliable. .
Because that evidence was completely unsupported by external and
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objective evidence, which to the extent it was available indee9 -
tended to contradi~t his allegations, we are of the view that we must
find that the employer has not made out its case, and that the grievance
must therefore be allowed.
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Before.concluding this award, however, there is one further
matter which must be considered. A very substantial . part of the
union's case was that the employerls treatment of Mr. F.'s allegations
was in some way improperly influenced by the Ministerts publicly expressed
antipathy toward the grievor, and his desire to see the grievor's
I discharge made effective. In fairness to the reputations and
professi.onal integrity of the management personnel of the Ministry
who participateq in this matter, we think it is important to say that
. there was no evidence before us of any direct political influence in.
the investigation or in the process by which the decision to discharge
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the grfevor was made. Furthermore. we think that the Ministry officials
here involved had virtually no choice, after Mr. F. had made his
allegations and those allegations had not been directly contradicted
in the course of the investigation, but to take those allegations
at face value and proceed against th~ grievor in the way .in which
they did.
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In the result, therefore, the present grievance must be
allowed, on the basis that the allegations made against the
grievor have simply not been made out. The discharge of the grievor
was therefore not for just cause, and the grievor is entitled to
reinstatement in employment with the Ministry with full compensation
for any losses suffered by reason of the wrongful discharge.
The effect of this decision is, therefore, to reinstate the
grievor subject to the conditions placed upon his employment by the
, award.of the panel of the.Board which heard his first discharge.
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grievance. We have no jurisdiction to deal with any of the conditions
imposed by the Board, nor to inquire into whether or not they have
been met. In any case, the fact that the grievor was never actually
returned to employment, although. he was paid a salary for a period
prior to his second discharge, renders academic whether the grievor
has complied with these conditions or not.
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of compensation and implementation of our award to the parties for
resolution between them. In case they are unable to resolve these
matters, we retain jurisdiction to whatever extent is necessary to
perfect our award.
DATED at Toronto, Ontario, this 31st day of
May, 1985.
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K. P. Swan, Vice Chairman
S\\-~
S. Hennessy~ Member
(Dissent Attached)
1'. Camp, Membe r
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o P S E U (TYLER)
and
The Crown in Right of Ontario
(Ministry of Community and Social Services)
D 1 SSE N T
With respect, I must disagree with the opinion of the
majority in this case. On the ,evidence before this Board I
would ha.ve upheld the discharge of the Grievor and dismissed
this grievance. The majority properly took note of the
Grievor's. record and certain admiss ions made by him
concerning his sexual conduct. While I do not need to
recite that history in. detail, it:: has an important bearing
on this case. --" "-" , .
Briefly, the Grievor was convicted on April 26, 1983 of two
counts of gross indecency. He has received one previous
conviction for a similar offence in July, 1975. He has also
admitted engaging in "washroom sexll, both on and off
Ministry premises, during the period in question.
Following the laying of charges. of gross indecency, the
Ministry. dismissed the Grievor. The Grievor grieved his.
dismissal before the Grievance Settlement Board and was.
re- ins tated by an award issued on January 23. 1984. The
Board found that the crux of the Employer's case was that
the Grievor had engaged in sexual ac ti vi ty wi th a cl i ent of
the Ministry. In t~e light of its finding that the Employer
had failed to prove this allegation, the Board was unwillin~"
to uphold the dismissal, and the Grievor was reinstated. It
is again$t this backdrop that the circumstances giving rise
to the present grievance arose. The dismissal in this
instance followed complaints concerninl? the Grievor-Is
conduct made by Mr. F" a Ministry client. For the reasons
set out in the majority award, the witness' testimony was
rejected.
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As this case turns on a matter of credibility, the evidence
of Mr. F. was indeed critical. Rather than reviewing all
the evidence. I wi 11 address only those points on which I
differ from the majority:
1. Reason for Delay in Coming Forward
The witness explained his: delay in. coming. forward to
Ms. Remple and to this Board. His explanation was that
he found the courage to complain after learnin~ that
another client of the Ministry had testified against the.
Grievor in earlier proceedings. I accept his evidence
on this point.
The maj ority felt that if Mr. F. had real complaints
about the Grievor. he could have expressed his concerns
in confidence to' other Ministry employees. Frankly, I
think this is an unwarranted assumption. No real
opportunities were available to him since, as he
testified,., he felt intimidated \ and fearful. What bas is
would he have had for believing his complaints .~ould be
held in confidence?
I chink it likely that Mr. F. would never have come
forward had he not: been encouraged by the fact that
another client had already done so. In my view, the
delay does not lead to the conclusion that the witness
ever .condoned the Grievor's conduct.
2. Ap?arent Contradictions
I disagree that the witness told different stories to
Ms. Remp Ie and to the Board. His tes t imony that the
Grievor approached him in the Grievor's office and laid
his hand on his th igh is cons is tent' with the s tot'y he
told to Ms. Remple.
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I t is true that Hr. F. rais ed add i tional alle~at ions
against the Gr{evor ae. the hearing, allegations which
he had not discussed with Ms. Remple. Mr. Packer
attributed this omission to Mr. F..ls reluctance to spiak
of themasturba"tion incidents in front of. a woman. On
balance I accept this exp lanation. The witness himself
said that he felt embarrassed.
In my view it is of no consequence t,hat the .wi tness
managed to speak about the masturbation incidents under
ques tloning from female counsel. By the time of the
hearing, he had told his story a number of. times to
various people including counsel. It 1s reasonable to
assume that the incidents became less embarrass ing to
relate solely through repetition - certainly far less
than the discomfort he would have felt in tellin~ his
story for the first time. 1 therefore would not have
rejected his evidence on this ground.
More serious is the fact that the Grievor changed his
story on cross-examination. Although he insisted
throughout on certain allegations of sexual impropriety,
the majority nevertheless rej ected all his evidence. I
would not have so found. The witness was nervous and
confused, and in the hands of eKperienced couns el on
cross-examination he agreed with suggestions made to
him. On re-examination he explained the discrepancy by
saying he felt afraid. More importantly, he insisted
that what he had said ~riginally ~as true.
In any event, Mr. F. I S testimony on cross-examination
should not, in my view, cast doubt on all his evidence.
He was cons is tent throughout wi th respect to certain
allegations of imp~opriety and I accept his evidence in
chis regard. Even if the totality of the Grievor's
conduct was that he placed his hand .on the client" s
thigh. such behaviour in these circumstances is
unaccepta.ble.
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1 also found the obj ec t i ve evi dence support i ve of Mr.
F. 's testimony. He testified that the Grievor locked
his office door by pushing a button in the centre of the
door knob. This testimony is consistent with the story
he told Ms. Remple. With respect, 1 think it is
irrelevant that some office. doors have this type of
lock. Why would the witness fabricate such a small but
telling detail?
The tIIaj ority stated that if any part of Mr.F. IS
allegations were well-founded. it should uphold the
discharge. I agree. At the very least, there is
~
_ sufficient evidence to prove the so-called .'~inor
allegations" of impropriety. and I have no difficulty in
upholding the discharge on this ground alone.
3. Similar Fact Evidence
Turning to the incidents of masturbation allege~ by Mr.
F.. what weight can be given to this evidence? In
assessing its validity, I am entitled to consider
similar acts by the Grievor. .This is the "similar
facts" rule; there is no difference between the criminal
and civil law in this respect.
Similar fact evidence is admissible to show a. "practice"
o~ course of. conduct from which ~he doin~ of the
partIcular act can be inferred. thus on a charge of
sexual impropriety .involving a Ministry client, evidence
that the Grievor enga,e:ed in "washroom sex" during the
period in question is admissible and goes to satisfy the
burden of proof that he in fact enga~ed in the conduct
alleged. We are not dealing here: wic:h an isolaced
incident or "momentary aberration".
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On the contrary, his history clea~ly illustrates a
pattern of behaviour. In light. of the Grievor's
criminal record and his admitted sexual practices during
the period in question 1 find, on the balance of
probabilities, . that he did wha.t the witness said he did.
ABUSE OF TRUST
Due to the nature of their client group, ministry employees
such as the Grievor arec in a particular position of trust.
The majority captured this point succinctly at p. 300i
award:
"ThisMinistry, perhaps not uniquely, but to a
degree quite different. from lDany other
branches of the Ontario Public Service, deals
with citizens, as clients, who are part-
ic.ularly susceptible in one way or another.
The clients of this Ministry are, almost by
definition. disadvantaged in one way or
another, and become dependent upon the
availability of the services offered by the
Ministry~. Whether that dependency is
predicated upon disability, impoverishment or
other mLsfortune, the dependency is very real,
and the protection required' is very important.
It would be intolerable to continue the
employment of anyone 'Who Used the position of
authority on behalf of the Ministry to take
advantage of those clients. whether sexually,
financia.lly, or in any other way."
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I agree. In light of my finding that the
the acts complained of, he has abused
trus t. Discharge is the only. appropriate
circumstances.
Grievor committed
his position of
sanction in these
Second. an important aspect of this case has been its
publicity. What is the effect of that. publicity on the
reputation of the Ministry,' and on its employment
relationship with the Grievor?
The Grievor's reinstatement in 1984 was stron~ly c~iticized
in the press and in the legislature. Certain comments of
the Minister were also ~idelY reported. Considerable
publicity has now surrounded this hearing.
!n order to function effectively, the Ministry must also
preserve the public trust. In my view. the Grievor's .conduct
has already damaged that trust., To reinstate him - for the
second time - would serious 1y injure the reputat ion of the
Ministry. .
Finally, it is essential. that the Ministry have absolute
confidence in its employees. Their conduct must be
irreproachable. The mere fact. that these second charges
have been brought has destroyed that confidence and
.
irreparably damaged the employment relationship.
For all these reasons I would have upheld the discharge and
dismissed this Grievance.
~~.Yo
PETER D. CAMP