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HomeMy WebLinkAbout1982-0433.Kiviloo.83-01-11Between: 433/m IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES CCLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSELJ (Peter Kiviloo) Grievor , - And - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: R.L. Verity, Q.C. Vice Chairman S. Schachter Member G. Peckham Member For the Grievor: G. Richards, Grievance.Officer Ontario Public Service Employees Union Hearing: November 30, 1982 .-_ icer For the Employer: P.~Van Horne, Staff Relations Off Ministry of Correctional Services _1 - 2 - AWARD ".. ~.,,.A - , In a,Grievance dated July 26th,:1982, Pete'r . . KiViloo alLeges that~he received !a writien'.reprimand. / -without,just,cause". .The settlCme~ntriqu@sted wasLremoval .: .of that.:letter~from:t.he Grievor's 'personngl file. ‘ .' .I . .i :: ',.. Th,e .Grievor receiv.ed~.,,! ,le~t,ter of repri,,mand dated July 12th, 1982 (Exhib.it 4)., w,hic,h ,d,ealt wjth ,two separate allegations. The Hearing before this Board on November 30th, 19.82, dealt exe ~th.e compl,aint f / ..l.etter 'referred usively.~with.~pne of ,those al.legations -- namely led by Mi+s Jacque~l.ine,, Apri1.e.. Th.at disciplinary to "the :allebation of Ms. Jacqueline ~Aprile, a. ' volunteer .under your su.pervision,- that you conduc.ted y.ourself . , in an inappropriate and un:pro,fe.ssional ma~nner in your interactions _ (; : with,h$r". The letter also re,ad.;in part: ;\' : .:, _' ' .. "Your actions in this matter had a detrimental a,ffect on then reputation of the Mini'sfry's volunteer program. As well your conduct rendered you unable to p.roperlly' supervise a volun,teer under your supervision in that Ms. Aprile had to be reassigned to another officer at her. request." The complain&fit is2a~201year old. "iblunteer" who has worked since Septembe,r 1981 with;the~ ScarboroCgh.West Probation and Parole Office of the Ministry. She is one bf 28 volutiteers i. ~-from.the'Scarborough community ftinctionih'g,in the volunteer program initiated by the Ministry. Essentially, then job of a . ,. ., - 3 - volunteer is to assist probation and parole officers to a limited extent with their case loads, both at the office and in the community. The evidence indicates that the Ministry had actively sought community involvement in its programs in recognition of the fact that certain clients tend to resist "authority figures" as represented by probation and parole officers. not perce i . . .,, Volunteers are utilized primarily because they are ved as authority figures. The Grievor, Peter Kiviloo, is 42 years of age and is classified as a Probation Officer 2. He has had some 18 years experience with the Ministry. While at the Ministry he has had some considerable experience in the production of video tapes, and he has additional experience in teaching at Ryerson Polytechnical Institute and at night classes at high school. Mr. Kivi record of service isolated and unre ago. loo holds has been lated inci Miss Aprile camp volunteer and in December a Masters Degree in Sociology. His unblem.ished save and except for one dent which occurred some 5 or 6 years eted her initial training as a 981 she was' given her first two case assignments. In February, 1982, Mrs. Nancy Bennett the Volunteer Co-Ordinator at the Scarborough West Office, specifically assigned Miss Aprile to the Grievor for additional supervision, and to receive further case assignments. I - 4 - ‘; 8 I‘.;’ :,.. ..,: ‘i ‘. On February 16th, 1982,: Miss,Aprile had her, first ?i . .~i . . rc .?A ; ~1' -ye.- ."I face to face meeting with the Grievor just outside her workplace _::,~I. ,' +,., ; 1-t.', .^ ..~. ,~.. ,~ at approximately 4:30 p,:m. ,. Both proceeded to a nea,rby restau-' 1 rant frequented by the Grievor :.. '~, .., L.&r ,-_ _~ from the Gr!.evor's apartment. ,. .,, _ took place concern,ing the fami . . " .- which was located .; . ., I ; .' : After ordqrj,rg.dr i ,'I .: .~ y and'jpb $f,bo,th 'T' ,1 directly across 1 nks, discussions , Miss Aprile and ..1 the Grievor. 'No di:cussions took,place at that time about the _. ,,. : .,.I I';.: \ ~,-\I. f .; .I . possible assignment of cases to Miss ApriJ,eYl The G.r,ievo,r viewed , , T?'. ' ,, ,.'. that meeting as merely'an introductory session to enable him to ':.- -2:' '7 _ C,', ,.': 1 ', + , i, - i .: : *~. ', : assess what type of case would be assigned to. Miss Aprile. The ;, : .y ,/ _. ,I,-', ,, .- ,' restaurant rendezvous concluded uneventfully on that occasion at approximately I:30 p.m. : _ -. *. ,I .r (_ I . _ . ., " : . '. A -second meeting 'took place 'betwe'en 'the‘ Gri,evor and ,\ IF Miss Aprile' on February '23rd, 1.98~3 at-th-e' same ~restaurant. " Ac.cording : ; '- , ,, to Miss Ap'rile's evide'nc'e, .' the )'.! r purpo's'e of that' meeting :' - was .to discuss,case assignments. hiss April:e admi.t's 'to consuming -, . two drinks 'while.at'-ihe rest'au!rant 'and alleges that"the. Griever had double that qu"antity. : Some discussion did‘take~ plac-e con- 'kevriin~g the d'rfevo?'s case 'load, _’ . . . . . . but again 'no a<s.ignment;'.were 'given tb' Miss .Aorile. . The Grie-vor spoke eitens'ively b'f his '1. .~. involvement in filming'.\jideo'tabes and-'in'part;cular the' tape that 'he had already produced entitled "'Victims of Crime". The - . .,I. \ Grievor spoke of v'ideb tabings thatwere to 'be produced'during Cl ..,, - 5 - a series of Saturday morning sessions with probationers. He indicated that he was in need of an assistant for these tapings and considered Miss Aprile to be an ideal candidate. He also spoke of a secondary'taping session with volunteerswhich was to be produced during a single Saturday morning session. The Grievor advised Miss Aprile that it would be helpful if she viewed the one-half hour vid.eo“taoe at his apartment. Accordi ngly, they left the restaurant at approximately 7:00 to 7:30 p.m. and . proceeded to the Griever's apartment. After having met the Grievor's male roommate, they proceeded to the second floor of the apartment ostensibly to view the tape. llhat transpired in the apartment remains the subject of considerable dispute. At the Hearing, Miss Aprjle accurately described the physical layout of the second floor of the Grievor's apartment (Exhibit 3) -- namely a desk, bookcases, a television and a bed. Miss Aprile testified that the Grievor poured himself a drink,and then came up behind her and put his arm around her. Both parties agreed that she did not wish to be touched and that she protested accordingly. Miss Aprile testified that the Grievor moved the television beside the bed, positioned two chairs in front of the television and helped her"into a chair. According to Miss Aprile's evidence, during the course of viewing the video tape the Grievor placed his arm around her shoulders and patted her hand and arm. Again, she protested and asked him to desist. - 6 - . Some discuss'ion~ took place I _.. i _ about theAnaturalness of affection. . ~I .,~ Miss Apri1.e 'gave eviden~c: that'she was upset and ,. -, scared~'and '8. ,~ " .~I "that 'his eyes.were glassy and that he was acti-ng stra.nge". ..~.- ., I (~ .,,..,: .' Her evidence 'was to the 'effe'ct that prior 'to : ./ . of the video‘tape she ;oAk . her coat, the compl.e:tiion i ran to the elevator with the Grievor in pursuit. '. ." 'i ,,* *, I The Grievor'.s.'recollection of the'ev'ents differed ,. in nume'rous respects from the testimony of amiss Aprile. He _-_ deniers putting'his arm around her, although- he did testify ,. <'> : "I believe I. toiched her shoulder --it was spontaneous, it .i .. . . . -: wasn't calculated". He didn't recall having a drink in his ., apartmen't. _. '. -Hcs eiiden~ce'wak'.that they viewed 'the entire video *' "' .:. .~ I tape together, and that she 'left as soon as the tape was com- :., :. :,.* ., c pleted. He denied that he had touched any other female employee :. 'L,. !V' ., ,“ ~' in the Ministry. The Grievor recalled.tha't'he had two drinks . ,' at.t.he restaurant and not four ds had'been allege:. >~ .: -' However, I I ,.. . he did admit'that his judgment c'bul'd haie'been ikpaired'by P alcohol in view of his heavy work lo.ad that day at the office . I : and ‘the fact that he had no sipper fin the' interim. The Griever's 1: r; i , general description of the events at his apartment on the evening ,' 5‘ in question was th.at." it was'not .a soc>al ociasion, it was a . business occasion" and that' Miss, Aprile ,~had '_. "overreacted'. - 7 - The delay associated with the imposition of discipline is worthy of repetitioi. The evidence is clear that volunteers meet regularly with the Volunteer Co-Ordinator on a monthly basis. No such meeting took place in February, 1982. Miss Aprile 'did not attend the March 30th volunteer meeting. However, she did indicate to Mrs. Nancy Bennett shortly thereafter that she'was.having some difficulty with the Grievor, but did not wish to discuss the problem. Mrs. Bennett did not pursue the matter on that occasion. At the April 27th meeting of volunteers, Miss Aprile advised Mrs. Bennett that she was now willing to discuss her concerns regarding the Grievor. Subsequently, on May 1st Miss Aprile spoke at some l,ength to Mrs. Bennett about the February incidents, and in turn Mrs. Bennett promptly reported the matter to the Area Manager, Morris Zbar. To the credit of Mrs. Bennett, she immediately reassigned Miss Aprile to another parole and probation officer. Mr. Zbar met with Miss Aprile on May 11th and advised her that because of the seriousness of the allegations that he must receive a written complaint prior to taking any action. The written report prepared by Miss Aprile (Exhibit 2) was delivered to Mr. Zbar'towards the end of May 1982. It was not until June 29th that Mr. Zbar held~a meeting with the Grievor in the presence of a Union Steward. Mr. Zbar explained the reason for the delay as being a combination of time away from work as a result of his father's death and his desire to be - 8 - " “ " fully briefed on a second ‘and unrelated allega't/on involving .: the Grievbr. 'It was on July 12th, 1982 that the Grievor , . '.. received the letter of reprimand. ,I ..* I, ,. ",' :.1 On behalf of the Ministry, Mr. VanHorne argued that the Grievo'r's ~behaviour was' culpa'ble and 'that his conduct must attract'some form of discipl'ine, - In- additidn; h'e de&r'ibed the Griever's te'stimony was being evasi've and self-serving and .accordingly not' credible. " " : . '_ : .' : _i' t. !, bn'beh'a'l f o,f th'e Griever;'.Mr.'~kich$.rds argued that .~ the Griever's eviden'ce was'credible;and that it was Miss , ..Aprile's testimony that was vague Ian the ab's'ence‘of 'any culmi'n- ating incident. 'Mr. R.ichards ~argued forcefully tha't Miss Aprile didn't complain about the February intidents.until 1onggafter:the.~ event, and that there was undue delay in the administration of discipline. He argued that in' the'ci'rcimstances there was no 'damage'to.the Ministry'sreputation th'at 'flowed fr0.m the' Grievor's conduct; but that there was Rotenti'al for damage 'to the Grievor's reputation. -. Arbitral precedent.was submi,t.ted 'by the Employer including.the Awards of McCarthy and Liquor Control Board of Ontario, 66/77 (Swan), and Clarke and .The Crown in~Right~ of I .' Ontario, Ministry'of Health.,:196/81. (Swinton').' :Both~of. these L . ; Awards in little va In short, party tha - 9 - olved discharge cases and accordingly are of ue to the resolution of the instant Grievance. there were no arbitral precedents cited by either were directly on point. In assessing the evidence, it is obvious that a determination must be made dri the issue of credibility. Having considered carefully all of the evidence, we are of the opinion that the testimony of Miss Aprile is indeed credible and is the better explanation of what transpired on the evenings of February 16th and February 23rd, 1982. Miss Aprile was described by Mr. Zbar as a "good volunteer" and by Mrs. Bennett as "reliable, responsible, accurate and mature". On the evidence. we cannot find that the Grievor's testimony was credible. contacts The evidence is clear that Miss Aprile had with the Grievor subsequent to February 23rd icipate with the Grievor on May 1st in the fi a video tape on volunteers and in so doing was in the did part imited She ming of company of other volunteers. Clearly, she took no part whatsoever in the filming of Saturday morning video tape sessions other than on May lst, 1982. At the hearing, the Grievor admitted ~that his judgment might have been coloured by the consumption of alcohol. In his evidence, Mr. Zbar testified that two factors were important in the administration of discipline as a result of'his meeting with the Grievor on June 29th. 1982. Firstly, the Grievor did not deny -.lO - touching Mists t Aprile, ,. -. , and his statement to‘Mr. Zbar at the .T : time was that "I remember her saying‘ don't touch m'e , but I .,' ., , don't rememberwhether I touchedh'er or not". Secondly, : .f the Grievor explained to Mr. Zbar at that meeting: ' ,: "we had -. -' .,,. j- ,:' a couple of drinks each - that may have impaired our judgment". _. . . " -. r Clearly, the evidence indicates that ~the 'Griever's : : . behaviour on the eveniig of February 23rd was neither provoked TV _I nor encouraged in any way by Miss Aprile. Th-e evidence is to : _ '. : e. the contrary on each occas gestures were n that Miss Aprile resisted the Grievor's advances own. There was no eviden.ce, that., the Grievor's : erotic in any res,pect. H0we~ve.r .the fact that the allegations against, the .Grievor were minor in relation to . the,typical sexual hara@qt~c+edoes~not obJ.$ge theccmplainant to ._ _' . ., submit herself to. more substantival abuse before p_osses,sing a :' . .._ ,~ -*( legitima.te complaint, ,., ,( .,: . 2 The incidents that occurred at the Grievor's a'partment do not reflect admirably on either party. Although Miss Aprile deserves credit ,fbr proceedin'g with this matter recognizing the frustrations associated therein, We' are of the view-that she was somewha,t naive 'to have-consented to visi't"the Gri'eior's apartment in'the first plac'e. However,'she:, cannot.be faulted fork her delay in rep0rtin.g the incident to Mrs: Bennett in vi'ew of the fact Miss Api;i'le~'s'p'arehts were'iti Florida for'the w'inter months, and accordingly tiere unavailable to her to give direction. - 11 - . - In particular, the Grievor was naive to have invited Miss Aprile to his apartment for the purpose of viewing the video tape. Admittedly, the video tape was unavailable for viewing purposes at the Grievor's office. However, in our opinion had it been essential for Miss April to view the tape, the Grievor had adequate advance notice to make suitable arrangements so that an offi'ce.viewing would have been possible. In retrospect, the Grievor is fortunate in the circumstances that Miss Aprile was a mature woman, otherwise the allegations against the Grievor could have been far more serious. The Grievor's conduct on February 16th. although somewhat unusual, wassnot improper. It was unusual in the sense that the typical arrangement fo.r parole officers was to meet volunteers initially at the office. We are of the view - that the Grievor's first meeting with Miss Aprile as well as any subsequent meetings could have and should have taken place at the office. On the evidence, we are of the opinion that the Grievor's conduct on the evening of February 23rd was both improper and inappropriate. Admittedly; there are no rules and regulations governing this type of off-duty conduct, yet common sense should have dictated to the Grievor that his actions could have potentially placed the Ministry's volunteer - 12 - program’ iit.d .di~sre;ut.e.,!,.’ .The"Grievor's'con‘dudt'on the evening of February 23rd did place the Ministry's volunteer program into disrepute at least in the eyes of Miss Aprile and her i>,,I.' parents, and any other person who had become aware'of the events. Therefore, we are of the view that the Mirristry had just cause for the imposition of some form of discipline. .: ,.-. : .-....~ ., ., c __ -We turn-now,t,o assess'the appropriateness of the penalty imposed. The d'e.iay factor referred to previously in this Award was a concern to.this panel of the Board. The delay in the admi Xistration, of discipline has been~ held to be.2 b,ar .to disci, pl.i,ne'in cert‘a‘ih' fact situations. In the instan.t..Grie,vance,..the :discipli.ne imposed was only a written reprimand and the conduct complained of, although improper, was a relatively minor f Awards of the Grievance been unwilling to. exerci orm of indiscretion. In previous Settlement Board, Arbitrators have se remedial authority on behalf of the Grievor'where,.the Grievor.'s te.stimony could not be believed. See Re Harris and Ministry of.Community and Socia~l Services, 7/75 (Beatty) at p. 21; Re Russell and Ministry of Correctional Services, 52177 (Swan); and Re Tammine?i and Ministry of Correctional Services, 272/7g (Verity) at p. 11. In all the circumstances, we decline to mod~ify the penalty. - 13 - Accordingly, this Grievance is dismissed. DATED at Brantford. Ontario, this 11th day of January, A.D., 1983. R.L. Verity, Q.C. Vice chairman S. Schachter bhber