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HomeMy WebLinkAbout1982-0601.Tyler.84-01-23601/82, 602/82 76/83, 77/83 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Wayne L. A. Tyler) Before: For the Grievor: For the Employer: Hearings: Grievor - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer R. H. McLaren Vice Chairman B. Switzman Member F. T. Collict Member P. J. J. Cavalluzzo Counsel Cavalluzzo, Hayes & Lennon Barristers & .Solicitors R. J. McCully Counsel Legal Services Branch Ministry of Community and Social Services May 3 & 4, 1983 June 21 & 29, 1983 September 2 & 12, 1983 DECISION Wayne Tyler had been an employee of The 'Ministry of Community and Social Services since August 13, 1962, until his suspension on October 1, 1982, and subsequent retroactive dis- charge effective to that date. Apart from the action now under consideration, he has never been disciplined by his employer. He is considered by his superiors to be.unquestionably compe- tent in the execution of the technical aspects of his work. In 1979, he was moved to the Kitchener office where he worked as a Welfare Field Worker I. That job involves having responsibility for a case load for vocational rehabilitation, which involves both office and field work to ensure that people receiving allowances are eligible to receive them. On Christmas Eve, 1982, the Grievor received a letter written by the Area Manager, Marilyn G. Stephenson. The letter is a retroactive discharge. The salient portions read as foliows: I, . . . I have the following concerns: 1. That you were involved sexually with a male, juvenile prostitute. 2. That you again performed fellatio with. this individual after he became a Ministry client. 3. That you threatened this individual with retribution if he revealed your sexual relationship with him." I I -3- ‘I 4 . 5. 6. 7. That you repeatedly used the washroom in your place of work to solicit sexual partners and for performance of fellatio with your sexual partners. That, by your own admission, you used the public washroom in the Mall two or three times per week for the performance of what might be referred to as grossly indecent acts. That you falsified Ministry documents including your mileage. That you misused Government time and lied to your supervisors about several matters including your whereabouts. It : is noted that you claim that you have ._. r never used Government tlme Ior sexual encounters and that you deny sexual involvement with Ministry clients. The evidence simply does not support your claims. Further, your very method of soliciting sexual partners affords no assurance that a client or potential client of this Ministry would not be approached. I am gravely concerned that similar previous sexual activities which; -by your own admission, resulted in a criminal conviction, appear to have continued. It appears that your pattern of conduct not only has not changed but is apparently now being demonstrated in a work environment and with the involve- ment of a Ministry client. This is totally unacceptable and contravenes the Ministry's standards of conduct as set out in PR-0505-02. Pursuant to Section 22(3) of the Public Service Act, you are dismissed from the Ontario Public Service effective October 1, 1982.~ You are entitled to grieve this decision at the second stage provided you do so within 20 (working) days. Yours truly, Marilyn G. Stephenson Area Manager - Adults Waterloo" (Exhibit 112) - 4 - Marilyn Stephenson's viva vote testimony as to the -- reasons for discharge were: "I was concerned about the use of work hours, the use of the work place, concerned with the conflicting evidence, the repetitive undisclosed nature of his activities and his reported use of mileage claims and time discrepancies." In response to the question from the Chairman of the Board regarding what it was about the behaviour on the job which concerned her and led her to discharge the Grievor, she gave the fol lowing reply. "I knew he was using office hours, his work place for this behaviour, he was aware of potentialmisconduct in his own' behaviour. It was for this reason he gave me explanations such as,,he always did it on his own time and was careful not to involve;<himself with clients of the Ministry." Marilyn Stephenson believed /she had contradictory evidence and therefore there was, at best, a contradiction between his statements to her and his actual behaviour. She felt he had lost credibility with her. She believed he had been involved with one of his juvenile clients. She was concerned if his version was correct that he had not disclosed the conflict he was involved in. Close behind these factors was the use and manipulation of one's hours to engage in this conduct and flagrant use of his work place to engage in it. As one can ascertain from the harsh light of retro- spective review the exact reasons for discharge are not clear. - -5- There is no formulation Of the reasons for discharge in precise terms. There is a catalogue of concerns and an element of failure to believe running through the December 22nd letter, but no specific reasons for discharge. Central to most of the employer's actions appears to be the homosexual contact'with Barry Shea, a juvenile, whose complaints brought this matter to the fore. It appears that the employer believed the Grievor had homosexual contact both before and after Barry Shea had become a client of the Ministry by&&g anapplication through Mr. Tyler. The first three of the seven specific concerns in the letter discharging the Grievor (Exhibit #2) suggest that the proper characterization of the reason for discharge is homosexual activity with a client of the Ministry. Further confirmation of that characterization _' is found in the second to last sentence of the first paragraph on page two where it is said, "... your pattern of conduct not only has not changed but is apparently now being demonstrated in a work environment and with,the involvement of a Ministry client." To the extent that the employer's actions were based upon homosexual contact with the juvenile after he became a Ministry client, they were unable to prove such actions before this Board. Exhibit #18, which is an internal confidential document prepared by Marilyn Stephenson, deals with this point in the following fashion. -’ 6 - Page 2 II . ..The only fact in dispute is whether Mr. Tyler engaged the juvenile once the boy was known to be an applicant of F.B.A. Mr. Tyler contends he has never had homosexual involvement with Ministry clients or staff. The juvenile, mentally retarded and an acknowledged prostitute, claims he engaged Mr. Tyler in fellatio after he became an applicant, that Mr. Tyler paid him money for the favour, and threatened him not to say anything about their involvement. In an earlier incident, a man had been convicted on a similar sex related charge based on the boy's testimony. His testimony is convincing. The events involving Mr. Tyler are recalled simply, in detail, without embarassment, non- judgementally, without evidence of hostility or obvious self-interest. In addition, Mr. Tyler can offer no assurances to his claim that he has not engaged Ministry clients as sexual partners. Knowing, his solicitation methods, preference for anonomity of partners, and regular use of the public washroom in the workplace for these illegal acts, the probability exists that he has solicited clients, children as well as adults, in his washroom antics."... Page 3 ,I . . - we are not dealing with a simple matter of sexual preference. Mr. Tyler has repe,atedly engaged in lurid, criminal acts of gross indecency involving multiple partners, at least one juvenile, Ministry client, and used the premises housing his workplace for such activities. His behaviour violates the broadest community standards of conduct and threatens the basic values of this society. The public has every right to expect protection from this type of abberant activity."... Page 4 I, . ..What we now know from Mr. Tyler's own description, is that we have an employee who engaged for many years in undetected, criminal behaviour in the workplace, during work hours."... In the spring and summer of 1982, Barry Shea, was a seventeen-year-old Crown ward of the Renfrew County Children's Aid Society, who had lived at a group home in Kitchener for the previous five years. On August 24, 1982, he would be eighteen years old and hence eligible to receive family benefit allowances because of his mental retardation and inability tom obtain steady employment. Barry Shea had a chance meeting with Mr. Tyler in the Brunswick Bowling Alley in the Waterloo Square Mall in the late winter or early spring of 1982. Through the exchanging of signs of interest well-known to homosexuals, they found themselves together in a washroom expressing interest in each other. That encounter culminated in Barry Shea performing fellatio upon Mr. Tyler. .There were apparently two other sexual encounters with Wayne Tyler. The second occurred in the fifth floor washroom of the Waterloo Square Office Tower where Barry Shea fellated Wayne Tyler and was paid five dollars. The Ministry is a tenant in that tower occupying the fifth floor and part of the fourth and sixth floors. The male and female washrooms are on alternate floors with the male washroom on the fifth floor. The washrooms are accessed by a key and are for the use of tenants of the building and their visitors. They are, therefore, not public washrooms but something less than exclusively the employer's washrooms because of the use by other tenants. - 8- The final sexual encounter was in the public washroom of the Waterloo Square Mall. Barry Shea again performed fellatio in exchange for money. Those washrooms are on the ground &loor of the mall area of the square. Nearby, the elevators to the office tower are located. The Grievor admits to the second and third encounters, but suggests that the second one was the first.encounter and arose out of the chance luncheon meeting in the bowling alley. He was charged under the Criminal Code of Canada with having committed an act of gross indecency with Barry Shea. He pleaded guilty to the charge and received a suspended sentence and two years probation. As chance would have it, the Grievor was required to process the application of Barry Shea for family benefits. The Grievor at the time of beginning to work on Barry Shea's file was unable to know that there was any connection between his client and one of his sexual partners. He only became aware of that connection when the boy entered his office on June 28, 1982. There is only one allegation of contact with Barry Shea after that date. The allegation is based upon information obtained by Louise Neilly in an interview conducted on July 7, 1982. Louise Neilly holds a B.A. in Comparative - 9 - Religion and works as a Special Investigator for the Assistant Deputy Minister. In the interview, the evidence for the allegation is alleged to have been obtained. It was, in fact, never proved in these proceedings. The allegation not having been proved, the Board finds the facts to be that.no contact with HarryShea occurred after June 28th. In the interview, Barry Shea first indicates the contact occurred the previous Thursday, which would have been Dominion Day. Upon prompting, he changed his statement to Friday. The evidence of Barry Shea before this.Board demonstrates the unreliability of his testimony. On several occasions, he made assertions and counter-assertions both within his testimony in.chief and cross and as between his testimony in chief compared with the cross-examination. His testimony also reveals how much influence suggestion can have upon him. Detective Schmidt, one of the investigating officers, at a meeting on July 26th found Barry Shea telling him that there was no contact after June 28th and he testified to this effect before this Board. The greater' experience of Detective Schmidt in interviewing and asking questions of individuals means that this evidence ought to be preferred over that of Louise Neillywhere the juvenile's o+m testimony is unreliable. The original interview by Ms.Neilly must be viewed with scepticism. The allegation is never subsequently approached with a view to attempting to find out the truth even when the employer is in possession of conflicting information from the police and Louise Neilly as to the existence of sexual contact with Barry Shea after - 10 - June 28, 1982. 'It is rather startling to realize that the fundamental assertion underlying the discharge is never attempted to be more accurately determined than by the two interviews which produce conflicting information. Instead, it becomes a fact, as evidenced in Exhibit #15 and other Ministry docunents following the interview of July 7th and is never put in question again until the proceedings before this Board. Another aspect of this incident is the alleged threat of II... retribution if he revealed your sexual relationship with him". (Item 3, Exhibit #2) Mr. Poole, who was present in Wayne Tyler's office at the June 28th meeting, testifies he is satisfied no threat occurred. What occurred was a mouthing of a caution by Wayne Tyler to Barry Shea not to reveal their prior associations. That is all that it was. To elevate such conduct to threatening retribution is a gross mischaracterization. It had spent its force with the very shaping of the words because Barry Shea told Ron Poole of the relationship in the elevator upon leaving Wayne Tyler's office. The allegation of threats in item 3 of Exhibit #2 is simply not sustained on the testimony of the employer's own Witnesses. The Board must come to the conclusion that the most serious allegations of the employer have not been proved. To the extent that these allegations form the key underpinning of the employer's case depending upon the characterization to be placed upon Exhibit #2, then the employer's case has not been -1 - 11 - proved on a balance of probabilities. The precise reasons and grounds of. discharge having been less than adequately articulated, it is found that the just cause for discharge was to a great extent based upon this assumption. It is not proved and, therefore, the grounds for discharge are not substantiated before this Board. The question now becomes one of whether the secondary allegations of the employer, if proved, can be considered as sufficient cause for discharge. It is undeniable that the Grievor is a homosexual. It is also a fact that he engages in what is described by Dr. Jenson, an expert witness who is the Director of the Clarke Institute, as washroom sex. It is also established-that many of these contacts are in public washrooms where anonymity,is a key element. It is further established that the Grievor was apprehended in the Waterloo Square washroom while engaged in the act of fellatio with a twenty-six year old male. That event took place on his lunch hour during a break from a very positive performance appraisal by the Grievor's supervisor. Thus the conduct for which the Grievor is convicted criminally is not directly on the employer's premises or during the employer's working hours. It results in a criminal conviction for gross indecency. It is upon the basis i’ .i - 12 - of these facts that the employer must prove its case of just cause for discharge. It was proved through police testimony and that of D. Irelard that Wayne Tyler had homosexual contact on July 26, 1982, between 12:30 and 1:22 in the Waterloo Square Mall washroom. There is an element of misuse Of the employer's time running through the previous findings in this case. It arises in a fashion unconnected with direct homosexual activity although perhaps with solicitation of the same, on September 2nd and again on the 29th. The Board finds the Grievor's explanation somewhat strained when he explains that his method of work provided him with certain time off. It is, therefore, established thaththere is some misuse of the employer's time by the Grievor in the course of his solicitation of sexual contact, as well as for general personal purposes. Ms. Louise lieillyconducted an examination of the Grievor's employment files in order to determine if there might be some additional grounds for substantiating any employer action against the Grievor. As a result of that investigation, which occurred in the summer of 1982, the employer alleges the misuse of mileage claim forms. That allegation, which is number 6 in Exhibit #2, was never substantiated before this Board. The employer introduced some evidence, but never pursued or proved such allegation and that cannot be considered as part of these proceedings. There is, therefore, no misuse of government property. * ,i - 13 - The essence of this case becomes one of whether the Grievor's solicitations and washroom sex activities, both on and off the employer's premises and during and outside of employment hours, justifies his discharge. The fact that the Grievor is a homosexual is irrelevant to this Board and should have been to his employer. The expression of the sexual conduct in the form of washroom sex is what underlies the employer's complaint. That conduct, as indicated by Dr. Jenson, is abnormal and degrading of the individuals involved. In engaging in such conduct, the Grievor demonstrates disregard for his employer's reputation by the use of the employer's premises. His judgment was unsound in utilizing his employer's premises and engaging in rationalizations as to the use of his employer's time. The unsound judgment was further exacerbated by'wayne Tyler's inability to deal with the problems growing out of his conduct upon learning that one of his sexual partners was to become a client of the Ministry. This case becomes a variation of the off-duty conduct and criminal conviction cases. An employer can always be concerned with an employee's observance of his duties on the job. In this case, the employer cannot rely upon such a proposition because it never proved a relationship existed with Barry Shea once he became a Ministry 9 ,i - 14 - client. If that had been proved, the Grievor's conduct would be tied directly to the observance Of his duties on the job. It was never proved. The next step to relate the Grievor's conduct to the observance of his duty on the job is based upon engaging in washroom sex during working hours. There is the single contact with D. Ireland on July 26th. The timing of that incident remains arguable as to whether it occurred on the job in the sense of being within working hours. The contact with Ireland leading to the arrest and subsequent conviction was undeniably on the lunch hour. We are, therefore, left with the solicitations arising on September 2nd and 29th during working hours as forming the necessary link 'to the Grievor's job- related duties. It has been said that an employer may properly be concerned with an employee's conduct regardless of whether it occurred on or off the employer's premises or in or out of working hours, if any of the following three, questions can be answered in the affirmative. "(1) Was the employee's conduct sufficiently injurious to the interests of the employer? (2) Did the employee act in a manner incompatible with the due and faithful discharge of his duty? (3) Did the employee do anything prejudicial or likely to be prejudicial to the reputation of the employer?" Re Huron Steel Products, 15 L.A.C. 288, at 289 (Reville, 1964). - 15 - An alternate approach has been stated to be that the employer show that: "(1) The conduct of the grievor harms the company's reputation or product. (2) The grievor's behaviour renders the employee unable to perform his duties satisfactorily. (3) The grievor's behaviour leads to refusal, reluctance or inability of the other employees to work with him. (4) The grievor has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious'to the general reputation of the company and its employees. (5) Places difficulty in the way of the company properly carrying out its function of efficiently managing its works and efficiently directing its working forces." Re Millhaven Fibres, (1967) 1 (A) Union-Management Arbitration Cases 3 to 8 Anderson quoted in Re Air Canada, 5 L.A.C. (2d) 7, at 8 (Andrews, 1973). The employer in this case is a government Ministry concerned with the handling of the mentally and physically disabled. The Grievor is a field worker who visits Ministry recipients of benefits in their homes. In such circumstances, it is appropriate for an employer to require that its employees' conduct be irreproachable because of the vulnerability of the persons being assisted and the need to make field visits giving rise to the potential to exploit the situation. Therefore, a conviction by an employee on two separate occasions for gross indecency under the Criminal Code of Canada amounts t0 an I a ; - 16 - affirmative answer to the first of the three questions set out above in Huron Steel Products, supra. In this case, each of the other two questions may also be answered in the affirmative. There is an element of the employee's misuse of his employment time which is incompatible with the discharge of his employment duties. The third question is more difficult to answer in the affirmative because of the evidence. If the allegation of contact with a Ministry client had been proved, then undeniably the Grievor's conduct would be prejudicial-.to the employer. On the facts that are proved, the Grievor's use of his employer's premises to engage in washroom sex with D. Ireland is prejudicial to the employer and its reputation. The Board concludes from the foregoing that the employer is properly concerned with the employee's conduct. It is unnecessary to determine whether that conduct occurred entirely in or out of Ministry working hours or on or off the employer's premises. The issues become (i) the gravity of the conduct; and (ii) the appropriate disciplinary action. (i) The Gravity of the Conduct In assessing the gravity of the conduct of the Grievor, it must be measured as to its effects upon the employer and on other employees. The effects upon the employer may be broken into a number of categories: 1. the standard of conduct of public employees; <. i - 17 - 2. the general effect on the employer's reputation; 3. the ability to perf,orm duties satisfactorily; and 4. the effect of the Criminal Code convictions. Counsel for the employer made considerable argument with respect to the standard of conduct of public employees and cited a large number of cases to the Board in support of the proposition that there was a higher general standard of conduct upon public employees. While it is correct that there are some cases which establish standards of conduct in respect of public employees which are higher than might be expected of normal employees, those cases arise in two situations. The higher standard of conduct will be imposed upon the employee not in a general and absolute sense, but when the employee is on the premises of his employer's customer or client,or the employee is in contact with the public through the use of the employer's facilities such as in the case of a common carrier. The evidence in this case does not prove that the Grievor's conduct had anything to do with clients of the Ministry or employees of the Ministry. The Grievor's conduct therefore cannot be measured by some higher standard for public employees because his conduct did not affect one of these groups of people rather some person randomly chosen from the society at large. a : - 18 - On the question of the effect of the Grievor's conduct on the general reputation of the employer, there is no evidence whatsoever. There is a statement by the person who 1 fired the Grievor, Mrs. Stevenson, that it had an effect, but no elaboration upon it and no evidence of that effect. The useof the fifth floor washroan for washroom sex could possibly affect the e@oyer's reputation. The board was left without evidence as to whether it did. There is XI effect upon the reputation of the eaployer established in evidence. The Grievor admits that he has been a homosexual for some considerable time and has performed similar acts on other occasions than those proved by the employer. The evidence of the employer is to the effect that the Grievor is a better- than-average employee and has carried out his work most completely and satisfactorily over the years. It is clear that the Grievor's behaviour does not render him unable to perform his duties satisfactorily. There is, however, established in the evidence a risk of the Grievor either finding himself in a new situation similar to that with Barry Shea or his being i. i - 19 - unable to control his impulses while at the home of a client of the Ministry. More will be said of about that in connection with the appropriate disciplinary action set out below. Turning to the fourth category of the effect of criminal convictions, it was held in the case of Re Dorr-Oliver- Long, 3 L.A.C. (2d) 193 (O'Shea, 1973) at 198-199, that: "In the Board's view, an employer does not become the guardian of every personal act of the employees, but at the same time, if an employee's wrongful actions affect, or are likely to affect the company's ability to manage and direct its working force, the company has a right, under appropriate circumstances, to discipline an employee..." To a similar effect is thecase of Re Borough of Scarborough, ,3 L.A.C. (2d) 213 (J.H. Brown, 1973) and Re Ford Motor, 22 L.A-.C. 35 (Weatherill, 1979). Once again the Board is placed in considerable dilemma in deliberating upon this dispute in that there is virtually ,no evidence suggesting that the Grievor's conduct was injurious to the general reputation of the Ministry or its employees. There is some speculation by Marilyn Stevenson, and she was very reluctant to provide even that testimony. The Board must conclude that there is no evidence to establish that there has been injury to the general reputation of the Ministry as a result of the guilty pleas and convictions of the Grievor. - 20 - Marilyn Stevenson speculated that there would be some difficulties in having the Grievor reinstated and working with his fellow employees after all that has happened. There was no testimony from any of the employees indicating that they would not or could not work with the Grievor. There is evidence from the Grievor that he has talked to some of his former fellow employees and they have indicated a willingness to work with him in the future. There is conflicting expert testimony on this point by Dr. Jensenand Dr. CcoFer, an expert witness for the employer who is Chief Psychiatrist at York-Finch General Hospital. Dr. Jensen testifies that there could be problems with the Grievor's relationship with others, if he were to return to the work place and that it might be better that he be employed elsewhere because of staff relationships. He qualified that view by indicating that the reaction of fellow workers would be quite different, if it had been a member of the staff which had been involved. Dr. Cooper suggests that there would be an effect on staff morale because the conduct is one which offends a moral code and will thus invoke responses by fellow employees. That testimony clearly indicates that there would be effects upon the employees, if there was reinstatement. That aspect of the testimony needs to be considered under the second heading dealing with the appropriate disciplinary action. There is no evidence that there was difficulty caused by his behaviour prior to the Grievor being apprehended by the police. The primary reason for that is undoubtedly because the Grievor's conduct was appa-rently unknown to his fellow employees. c. ,. - 21 - The other aspect of assessing the gravity of the conduct of the Grievor is to attempt to measure the consequences, of his conduct upon the other: employees. On the question of the effect upon the other employees, there is very little direct evidence to indicate that there would be any effect upon .them or the employer's ability to manage its work force efficiently and effectively. From all of the foregoing, 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. Having reached the foregoing conclusion, the gravity of the Grievor's conduct as proved must be placed in perspective. He misused his employer's time by using it to solicit sexual contacts away from the place of employment. On at least one occasion, a successful contact had been made and was followed up by use of a washroom leased by the employer. In using the i” - 22 - washroom for washroom sex, there was a misuse of the facilities provided to the Grievor by his employer. His activities being carried out in a public placeare in violation of ,the Criminal Code of Canada and have resulted in convictions. The conduct is grave. Though it primarily occurs away from the work-place,~ it is a situation warranting the employer's intervention as previously found. The conduct is not so grave as to warrant discharge. See for example, Re Indusmin Ltd., 20 L.A.C. (2d) 87 (Picher, 1978) and two cases involving other panels of the Grievance Settlement Board, being Re Clarke and The Crown in Right of Ontario Ministry of Health, Case NO. 196/81 and zNicholls Case No. 199/78 and 14/79. In the first case, an employee had been discharged for heterosexual relations at the work-place. The Arbitration Board mitigated the penalty suspending the person up to the time of issuing the award. In the second case, there was sexual contact.with a client and the person was discharged. The Board mitigated the penalty and substituted a suspension to the date of the award as they did in the third case involving a sexual assault on a ten-year-old; Likewise, the off-duty activity cases involving criminal convictions for shoplifting, alleged indecent assault, and sexual harassment in Re Gutierrez and The Crown in Right of Ontario (Ministry of Attorney-General), 29 L.A.C. (2d) 333 (Roberts, 1981); Re Corporation of the City of Calgary, 4 L.A.C. (3d) 50 (Beattie, 1981); and Re Government of the Province of Alberta, 5 L.A.C. (3d) 268 (Jolliffe, 1982) all also suggest that discharge il ., - 23 - is not warranted. The question then becomes one of determining the appropriate response. (ii) The Appropriate Disciplinary Action There is no simple or easy answer as to what ought to be the appropriate action to be imposed upon the Grievor by virtue of this award, given that the Board is not going to uphold the employer's action of discharge. The expert testimony clearly establishes that there are no assurances that the Grievor will not engage in washroom sex in the future. On the other hand, the evidence establishes that since the Grievor has been under the care of Dr. Jensen, he has been able to improve the Grievor's self-image and feelings of self-worth to such an extent as to make him realize that such conduct is a denigration of his own human dignity and is conduct which he ought not to engage in. Some discipline is warranted for two reasons. First, the Grievor did not deal with the Shea issue immediately when it arose. The Grievor ought to have disassociated himself with the case of Barry Shea since it became obvious that he was going to become a client of the Ministry. He chose not to do that and it was necessary for Marilyn Stevenson to order the case removed - 24 - from him on July 5, 1982. The second aspect of the situation which warrants discipline is the Grievor's practise of engaging in washroom sex. Those activities are found by this award to have been limited to non-employees of the Ministry and not clients of the Ministry. Nevertheless, when those activities are engaged in during the employee's working hours, as well as hours outside of the employment hours, the employer has a legitimate interest in the employee's behaviour to the extent of taking appropriate action. The facts in this case are very unique and it has been one of the most difficult cases that the Chairman of this Board has had to handle in his ten years as an arbitrator. The Board in this case is not mitigating the penalty. The Board has found that the reasons for discharge were vague and that they listed concerns that did not relate directlyto the reasons for discharge. The Board had then to characterize what was the employer's reasons for discharge. It found they were principally related to the sexual contact with Barry Shea after he had become a client of the Ministry. That being the reason for discharge, it was not proved. The Board is thus in the position of having to assess what discipline ought to have been imposed based upon what has been proved. It is for this reason that the Board is unwilling to entertain the suggestion of the counsel for the employer that it ought to provide the Grievor with monetary - 25 - damages rather than a reinstatement. Such an action is not one which the employer could have engaged in based on the facts which have been found in this award. This Board, therefore, ought not to substitute a monetary payment, but rather find an appropriate disciplinary response. It might be possible to provide a monetary award when the basis for dealing with the Grievor is one of mitigation. That approach is not possible when, as in this award, the Board is not mitigating the penalty but rather establishing what the appropria.te penal~ty ought to have been. The primary disciplinable conduct of the Grievor is his incredible lack of judgment, self-control and self-discipline. His conduct, if in private, away from the work-place and unquestionably on his own, time would not be the concern of his employer. He made it his employer's concern by his public activity, his abuse of the confidence placed in him by his employer and bringing his activities into the realm where it intertwined with his work place, his work conduct and responsibilities. The Board will impose a one-year suspension on him for his conduct. It is to be considered to have come to an end as of October 1, 1983. The expert testimony of Dr. Jensen and Dr. Cooper indicates that there are no reasons why the Grievor cannot be reinstated to his employment. However, their testi- mony does indicate that there are no assurances that the Grievor would not repeat his conduct in the future. At the present time he is not engaging in washroom sex. If that were likely to occur, Dr. Jensen suggested .a ,, - 26 - that treatment with a drug known as Proverra might be appropriate. He is one of the leading figures~in the treatment with this particular drug. The Board, therefore, concludes that the Grievor ought to be reinstated, but that that reinstatement should be on a conditional basis. The Grievor is to be returned to his employment with his employer provided that he continue to receive treatment under the direction of Dr. Jensen for whatever period of time the doctor may assess as being necessary. The Grievor is also to be reinstated on the understanding that similar conduct in the future in the form of washroom sex involving any connection with his employer would justify immediate discharge. The existence of this record and this arbitration proceeding ought to be a very weighty factor in any future assessment of the Grievor in considering discipline for any conduct found to have been established in this award. Within two weeks of the receipt of this award, the employer is to reinstate the Grievor in his employment with the Ministry. He is to receive pay from October 2, 1983. He is to be placed in a job where there will be no risks of contact with Ministry clients who are juveniles. The Board will remain seized of .A > - 27 - the matter of implementation of this remedy in the event that the parties are unable to agree as to the appropriate implementation. DATED at London, Ontario, this 23513 day of January, 1984. &4?isLJRzL R. McLaren Vice Chairman f&#&s* E Switzman Member "1 dissent" (see attached) F.T. Collict Member ,-. ,~- 1 : Employer Nominee's Dissent January 6., 1984. P.El: FILE NO’s - 601/82; 602/82; 76/82; 77/83 - W. TYLER This Member is in concurrence with the observation that this case has been most unique. The considerable evidence has been difficult to evaluate and weigh in relation to the reasons advanced to support discharge. Nevertheless, it is the view of this Member that the Chairman, after reviewing the complex evidence presented, has captured very succinctly the prime issue with which the Board must deal in this case after6 full days of hearings and further sessions and discussions. That issue is set out at page 24 of the award, and is as follows: "The primary disciplinable conduct of the Grievor is his incredible lack of judgment, self-control and self-discipline. His conduct, if in private, away from the work place and unquestionably on his own time would not be the concern of his employer. He made it his employer's concern by his public activity, his abuse of the confidence placed in him by his em- ployer and bringing his activities into the realm where it intertwined with his work place, his work conduct and responsibilities." The award would impose a one year suspension on the Grievor for his conduct. It is the position of this Member that the Grievor's actions warrant discharge and that the decision of the Employer in this case should be upheld. To fail to support discharge in this case may lead one to argue that, 1. It is not a dischargeable offence to engage in - sexual activities on Ministry premises! 2. It is not a dischargeable offence to engage in sexual activities on Ministry time when being paid by the Ministry to do Ministry work! 3. It is not a dischargeable offence to solicit - sexual activities during Ministry working hours, whether on or off Ministry premises! 2. / As cited in the award, there is arbitral jurisprudence to - support an employer response of less than discharge for sexual activities engaged in on an employer's premises, or in some way connected with the employer-employee relationship. However, these cases are distinguishable from the subject case; for in each instance, they involved an individual incident or act. One would not go so far as to characterize the incidents in the jurisprudence as "momentary aberrations". Nevertheless, the issues dealt only with isolated incidents or acts. By contrast, the Grievor's actions in this case are part of a pattern of behaviour and a sequence of activities which, by his own admission, involved solicitation on a regular basis of two to three occasions each week'over an extended period of time. The Grievor further testified that he had engaged in sexual acts on Ministry premisqs on no less than five separate occasions; and in specific cross examination he admitted to two occasions within two months. We are presented, therefore, with a situation which involved not solely.one isolated inci- dent, but the actual use of the Ministry washroom for sexual acts on a periodic basis, owing to the privacy afforded to the Grievor by the fact that he had a key to the Ministry washroom. One is tempted to speculate, on the balance of probabilities, as to whether or not the five admitted acts in the Ministry washroom are a conservative figure, - given the testimonies of Ms. Stephenson and Ms. Neilly concerning their statements as to the Griever's stated frequency of sexual activity, - given the frequency of the Grievor's admitted solicitations, - given the proximity of the Ministry washroom in relation to the Mall public washroom where the Grievor did much of his "cruising" . (his terminology) 3. Clearly from the above it is apparent that the subject case does not involve solely one incident. That which is involved in this case, therefore, is a pattern of behaviour which in- volved the use .of Ministry premises and Ministry time for the convenience of the Griever's chosen practices. Must an employer tolerate such actions and activities on the part of an employee? The Grievor in this case was charged with gross indecency on two prior occasions, 1963 and 1973, and was convicted and fined relative to the 1973 case. Based upon his own testimony, the comments of his counsel, and the testimony of Dr. Jensen, his behaviour did not change and had not changed when the subject incidents occurred in 1982; and which resulted in a further conviction of gross indecency on two counts. In effect, the Grievor has had ample warning of the potential impact of his behaviour and the legal consequences thereof. The Grievor's witness, .Dr. Jensen, testified that the Grievor had no mental disorders and that he is not addicted to either drugs or alcohol which could result in transient periods of lack of control. Very clearly, therefore, the Grievor knew what he was doing. Dr. Jensen further testified that the Grievor's sexual activities were neither a habit nor a disease. Rather, Dr. Jensen stated that they were a voluntary, chosen form of expression. The Grievor, therefore, opted for washroom sex as a behaviour, as opposed to participation in a confidential,homosexual, private relationship. It was his choice. Having made such a choice and having brought such a choice into the ambit of the employer- employee relationship, it is the position of this Member that the response of discharge was, and iswarranted. 4. Comment also must be made concerning the issue of whether or not the Grievor engaged in a sexual act with B. Shea after he became a client of the Ministry. The Board, including this Member, is agreed that B. Shea's testimony was conflicting, vague, and inconclusive, in large part due to his particular level of mental retardation which renders him virtually un- employable and, therefore, a ward of the Province. Nevertheless, one aspect of the testimony concerning B. Shea was very disturb- ing to this Member. It was stated that B. Shea had had a dis- cussion with the Grievor in a parking lot near the Mall, after he had become a client of the Ministry. It was stated further that the Grievor had asked B. Shea during this discussion whether or not he had told anyone about their prior relationship. B. Shea stated in examination in chief that he subsequently went to the Ministry washroom with the Grievor for a sexual encounter. It is one thing to rejectB. Shea's total testimony because much of it was conflicting and vague. However, it is disturbing, and just not believable that an individual who is mentally retarded, could fabricate such a critical and incriminating anecdote: for, as stated in the award, had the Board been convinced that the Grievor had engaged in a sexual act with a client of the Ministry knowing that the individual was such a client, the employer's position of discharge would be viewed in a different light. In testimony the Grievor stated that B. Shea gave thisspecific testimony out of "revenge". Surely, however, B. Shea,who is so mentally retarded that he becomes confused, cannot remember dates, who stated that he likes the Grievor and who did not want him to lose his job, is not out for revenge; and could not have "concocted' the parking lot discussion. The Griever's response to B. Shea's statement was neither credible nor convincing. Comment also should be made concerning the proposed reinstate- ment of the Grievor. Over the past year he has received counsel & ,* 5. and psychotherapy from Dr. Jensen, Director of the Clarke Institute. Dr. Jensen testified that he is positive concern- ing the possibility that the Grievor will be able to modify his lifestyle and behaviour; but there is no guarantee. He testified further that there is IIsome regression" when a patient switches from one therapist to another (which was planned in this case after a period of approximately one year). Dr. Jensen stated that if the Grievor was unable to control his sex drive and behaviour, the drug Provera could be administered. However, both Dr. Jensen (Counsel for the Grievor),and Dr. Cooper testi- fied that there could be side effects or "other problems" as a result of the use of Provera. .Dr. Cooper testified that the use of Provera is unusual and that approximately 45 hours of therapy in a year (i.e. approximately one,one hour visit per week) would not bring about a permanent change in the Grievor's behaviour in face of more than twenty years of aberrant behaviour. As stated in the award at page 24, the testimonies of both Dr. Jensen and Dr. Cooper indicate that there are no assurances that the Grievor will not repeat his conduct in the future. In Exhibit XI, Dr. Jensen stated in his evaluation of the Grievor that one of his greatest problems is the absence of a continuous and supportive social relationship. At the time of the hearings in this case the Grievor had a common-law relationship with a woman which had commenced around June of 1982, within weeks of the time the issues in this case began. Dr. Jensen states that it is important to the Grievor that this relationship should be continued. It is clear from the testimony, however, that the Grievor's sources of support are few and that this relationship is,. at best, tenuous. Dr. Jensen c>oncluded that if there is disruption in the Griever's life which would generate anxieties, it is highly probable that his control of his sex drive and behaviour will once again lead to problems for him. It must be noted that this is the testimony of the Union's expert and highly qualified professional witness. ! 6. In view of the disadvantaged clientele of the Ministry, it must be safeguarded from the exposure of such clientele to an individual who has been convicted of criminal charges and who may be in a position of influence in the administration of the Ministry services. Certainly this is the reason for the specific instruction at page 25 of the award which would preclude the assignment of the Grievor to a position of contact with Ministry clients. It is the view of this Member, however, that both the attitude of the Grievor and the peculiar circum- stances of this case provide an insurmountable obstacle in the employer-employee relationship, and that that relationship has been impacted to the point where it is irreparable. One might well argue that the length of service of the Grievor, potential financial hardship, and the possibility of reinstate- ment to a position which would not involve contact with Ministry clients, are factors which could result in this case being resolved on the basis of a long term suspension, as opposed to discharge. However, as stated in Bell Canada and the C.W.C., 22 L.A.C. (2d) 6 (Kennedy) at page 15, "In the case that is before us! the substitution of a suspension can be justified on compassionate grounds only, and I do not consider that alone to be an appropriate basis for attempting to re- establish an appropriate employer/employee relation- ship with its underlying requirement of mutual con- fidence." Surely this case is not one in which the employer can have con- fidence in the reinstatement of the Grievor. It is the view of this Member, therefore, that the subject grievance should be dismissed. After having stated all of the above, this Member must comment on a most important matter. This matter is so significant that it probably is the main point of difference between this Member and the other Board Members. At pages 3 and 4 of the award, the following comment is made: "AS one can ascertain from the harsh light of retrospective review the exact reasons for discharge are not clear. There is no formulation of the reasons for discharge in precise terms. There is a catalogue of concerns and an element of failure to believe running through the December 22nd letter, but no specific reasons for discharge." It is the view of this Member that the imprecision of the December 22nd discharge letter, although not fatal to the case to be made by Management, has provided very difficult problems for the Board and counsel for both parties. In effect, the Board has been faced with a "blast of buckshot" when a simple "rifle shot" might have sufficed; and that very "blast of buckshot" has introduced a large number of issues which required factual support, some of which was not forthcoming, with other factual information being either in conflict or inconsequential. Notwithstanding the above, however, sufficient fact and evidence was adduced during the hearings to establish that the Grievor did engage in a pattern of behaviour which demonstrated an incredible and unacceptable lack of judgment, self-control and self-discipline. Certainly an employer is entitled to.expect more of an employee than that he should have so little control over his drive for sex that he should engage in clandestine sexual activities on the employer's premises and during working hours for which the employee is paid. This Member is well aware that the year is 1984. However, social mores and standards of conduct in the work place preclude such behaviour. 8. Regardless, therefore, of the initial December 22nd, 1982, discharge letter, this Member finds that the Grievor is an undesirable employee; and the subject grievance should be dismissed.