Re The Crown in right of Ontario (Workers' Compensation Board) and Canadian Union of Public Employers, Local 1750
[Indexed as: Ontario (Workers' Compensation Board) and C.U.P.E., Loc. 1750 (M.B.), Re]
File No. 1034/89 Ontario, Crown Employees Grievance Settlement Board, C.G. Simmons, Vice-Chair, J.C. Laniel, H. Roberts. January 19,1995. *
EMPLOYEE GRIEVANCE alleging unjust discharge. Discharge rescinded; conditional reinstatement without compensation. Grievance allowed in part.
S. Krashinsky, for the union. D. Wakely, for the employer.
DECISION
The issue
This is a discharge case. The grievor claims that he has been unjustly dismissed and seeks reinstatement effective June 26, 1989, with appropriate salary and benefits. The employer maintains that it had just cause to terminate the services of the grievor and has denied the grievance.
The facts
On February 27, 1989, the grievor and a co-accused pleaded guilty to six charges of gross indecency and sexual assault. He was sentenced to nine months' incarceration on June 14, 1989. He acknowledges that he is a homosexual pedophile. The employer decided to terminate the grievor's services on June 26, 1989, and wrote to the grievor informing him of this decision. The letter of termination was written by his supervisor, Mr. D.C. Chrastina and is dated June 26, 1989 (ex. 4, Tab 52). The letter reads as follows:
I understand that with your sentencing on June 14, 1989 the criminal proceedings against you are now complete. Accordingly, the leave of absence
- Received March 15, 1995.
with pay in which you were placed effective January 3, 1989 ended on June 14, 1989.
Further, and as you previously have been advised it would do, the Workers' Compensation Board has reviewed and reached a decision with respect to your employment status. The Board has decided to terminate your employment for cause. The Board's reasons are as follows.
In late 1987, the Board became aware that certain criminal charges had been laid against you, including sexual offences involving young boys. This matter came to the attention of the Board through media reports. In some of those reports you were identified as an employee of the Board.
At the time these charges came to the attention of the Board, you were absent from work and in receipt of Long-Term Disability benefits.
You commenced your absence from work and receipt of Long-Term Disability Benefits on July 24, 1987. At that time, you were employed as a Rehabilitation Counsellor in the Commutations Section. On July 22, 1987, you were placed on a one day decision-making leave without pay effective July 23, 1987. You were advised at that time that should you wish to remain in the employ of the Board, continued disruptive or inappropriate behaviour would result in further corrective action being taken, including longer decision-making leaves or termination of employment. It is to be noted that the Memorandum dated July 22, 1987 followed a number of memoranda concerning deficiencies in your performance, including a lengthy memo delineating required improvements dated June 5, 1987.
Your doctor certified that you were fit to return to work in January of 1988. At that time, the Board decided to create and place you in a temporary position with the Investigation Services Section until disposition of the criminal charges referred to above was complete. The position in which you were placed, Controller, was clerical in nature and was purposefully low profile, with no interaction with the Board's clients and minimal interaction with Board employees.
During the course of 1988, you engaged in a pattern of progressively more inappropriate and confrontational behaviour with your supervisors and co-workers. This pattern of behaviour culminated in December of 1988, and resulted in the decision to place you on a leave of absence with pay pending disposition of the criminal charges against you. You were advised that at that time the Board would make a decision with respect to your continued employment taking into account your employment and disciplinary record, your pattern of disruptive conduct, and, the circumstances and import of the activities which gave rise to the criminal charges against you.
As a result of your inappropriate behaviour in the work place exacerbated by the nature of the offences for which you have pleaded guilty and have been convicted, there continues to be substantial resistance by other employees to your return to the work place. Your presence in the work place has been disruptive and in all likelihood would continue to be disruptive if you were to return to work.
Further, and undoubtedly needless to say, the nature of the activities for which you have been criminally convicted, and their public disclosure, renders your conduct injurious to the general reputation of the Workers' Compensation Board. It also renders you unfit for your regular duties as a Field Rehabilitation Counsellor or for any other position which involves client contact.
You have requested vacation leave from June 15, 1989 to August 25, 1989. In view of the decision of the Board to terminate your employment, you will be paid for your accumulated vacation credits in lieu of vacation.
In summary, the Board has reviewed the nature of the criminal charges with respect to which you plead guilty and were convicted, the fact and length of your sentence, your prior employment record and, in particular, your record of inappropriate behaviour and conduct at work and has determined that your continued employment is not consistent with the best interests of the Board or other management and non-management employees of the Board.
Pursuant to your request, a copy of this letter has been forwarded to the Union and to your lawyer.
The hearing first convened on February 6, 1991, during which the entire day was consumed by the opening statements of counsel. The second day of hearing was October 2, 1991. At the beginning of the hearing on that day counsel provided the panel with two copies of a transcript of the court proceedings on February 27, 1989, and requested that the panel read the transcript. The vice-chair did not make himself available of this offer but each of the panel members did so. Upon reconvening, the panel suggested to counsel that the matter be referred to "special mediation" before proceeding further. The parties agreed to this procedure whereupon the panel arranged to have Ms Natalie Bronstein, an experienced mediation officer, join the parties. Ms Bronstein's efforts were somewhat successful in that the panel was advised by the parties that the employer had placed an offer with the union at approximately 2:10 p.m. on Wednesday, October 2nd, which it would leave open until 4:00 p.m. Friday but if not accepted at that time it would be withdrawn and the matter would proceed. Apparently, the offer was not accepted and the matter proceeded. We turn now to briefly outline the background concerning this matter. The grievor first became employed with the employer on March 7, 1977. From 1979 until 1985 he was employed as a field rehabilitation counsellor. His duties included visiting homes of injured workers with a view to ascertaining their present condition and ascertaining their approximate date of return. In other words, his role was to investigate the conditions of injured workers who were receiving compensation benefits from the Workers' Compensation Board. By October, 1985, the grievor claimed that the workload had grown to such an extent that he was unable to cope and presented a medical certificate requesting that his case-load be reduced or that he be switched to some function that required little or no personal contact with injured workers (ex. 4, Tab 1). The employer complied and assigned the grievor to a temporary position in the vocational counselling branch which required him to work primarily out of head office in what was considered to be primarily an in-house setting (ex. 4, Tab 8). The grievor's physician informed the employer on February 27, 1986, that the restrictions he advocated in October were to be considered permanent (ex. 4, Tab 10). Unfortunately, the temporary position that had been assigned to the grievor could no longer be extended after March 7, 1986 (ex. 4, Tab 13). The grievor then sought to be re-employed within the vocational rehabilitation division but was denied this request (ex. 4, Tab 14). The grievor then filed a grievance claiming that he was unjustly denied the position of vocational rehabilitation counsellor in the commutations section. The parties resolved the matter by offering the grievor a three-month trial period in the commutations section (ex. 4, Tab 15). In charge of commutations and pensions advances section was Mr. J. Pompa, administrator. On September 12, 1986, the grievor's physician issued a medical certificate stating that the grievor was fit to return to his regular work as a field counsellor (ex. 4, Tab 23). However, there were concerns about placing the grievor back to performing the duties of rehabilitation counsellor until it was established that he could perform the functions of the position (ex. 4, Tab 24). By mid-November, 1986, the union was becoming involved in the situation (ex. 4, Tab 25). Near the end of October the grievor went to Mr. Pompa's office and verbally complained about not considering him for a field counselling position (ex. 4, Tab 26). By February, 1987, the grievor was being cautioned about language he was using to a fellow worker (ex. 4, Tab 28) and in June, 1987, he was given a memorandum which set out certain improvements that were required of him (ex. 4, Tab 29). Also in June, the grievor was being advised about leaving the work floor without advising his team co-ordinator before doing so (ex. 4, Tab 31). All of this culminated on July 23, 1987, when the grievor was given a one-day suspension by Mr. Pompa concerning his inappropriate and disruptive behaviour in the section where he was working. Mr. Pompa's comments are instructive and read as follows:
Subject: DECISION-MAKING LEAVE I refer to our meetings of July 13 and 20, 1987, regarding complaints relating to disruptive and inappropriate behaviour on July 9 and 15, 1987.
I have investigated and evaluated these issues, including taking fully into consideration your versions of what occurred on the dates in question.
It is determined your behaviour was inappropriate and was disruptive to the section's operations. As these matters are clearly outlined in Mr. P. Nolis' IDC of June 5, 1987, I have no alternative but to place you on a one-day decision-making leave without pay, effective Wednesday, July 23, 1987.
It is expected that you will take this time to decide whether you wish to continue to be employed by the Workers' Compensation Board and resolve the problem outlined above.
Please advise me on July 24, 1987 of your decision. If following this decision-making leave, should you wish to continue employment and there is continued disruptive, or inappropriate behaviour, further corrective action will be taken. Such action could include longer decision-making leaves or termination of employment.
I would like to assure you that I and the section team co-ordinators are more than willing to provide assistance to you should you require it.
On July 24, 1987, the grievor was placed on long-term disability. In November, 1987, he was charged with the offences that have been mentioned above. The grievor presented a doctor's certificate to the employer on January 4, 1988, indicating that he was fit to return to work in his field rehabilitation counsellor position (ex. 5). A meeting was held on January 5th by members of management to discuss the grievor's placement. It was decided that the grievor would be returned to active employment but would be placed in a position that would not have contact with the public and minimal contact with fellow workers. As a result, he was assigned the position of "Controller" in investigation services. He commenced active employment on January 11, 1988, in the investigation services under Mr. David Chrastina, manager. It was Mr. Chrastina's understanding that he was to provide employment for the grievor until March, 1988, when the charges against the grievor were scheduled to be heard in court. Unfortunately, the court hearing scheduled for March, 1988, was postponed until September when a trial date was set for November, 1988. This date was further delayed to February 27, 1989. It was at the February 27, 1989 court hearing that the grievor and his co-accused pled guilty to six charges of sexual assault and gross indecency. Sentencing was put over until May 12, 1989, but because of a delay encountered in completing a psychiatric evaluation report on the grievor the sentencing was held over until June 14, 1989.
The grievor's presence in investigation services continued through 1988 while the matter was proceeding through the court. It was during this period that the grievor's behaviour became somewhat "weird" in the workplace. The grievor was placed on a paid leave of absence commencing January 6, 1989, which continued through June 14, 1989, when he was sentenced to nine months' incarceration.
Grievor's weird behaviour at work
The grievor's testimony is referred to periodically throughout this decision and particularly in this section. The union sought protection of the grievor's evidence under the Ontario Evidence Act, R.S.O. 1990, c. E.23, the Canada Evidence Act, R.S.C. 1985, c. C-5, and the Canadian Charter of Rights and Freedoms which the panel extended to the grievor in these proceedings.
Mr. Jim Daly, program advisor, investigation services, related an experience or encounter he had with the grievor. Mr. Daly stated that the grievor reported to Ms Rita Giraudi whose title was supervisor, investigation services. Mr. Daly, a non-bargaining unit employee, worked with Ms Giraudi as a team member. She gave instructions to the grievor and Mr. Daly followed up on the information she requested of him concerning the grievor. Mr. Daly stated that on one occasion he and the grievor had a shouting match over the movement of the minute hand on a clock which was on the wall in the office. It had been running fast and Mr. Daly decided to change it to the correct time. After doing so he turned around and encountered the grievor who had been standing right behind him and began challenging Mr. Daly's authority to change the time on the clock. Mr. Day testified that he was personally frightened because of what was transpiring as the grievor was "right at my face".
The grievor acknowledged that the clock incident happened. He stated that the clock had been five or ten minutes fast for months. The employees benefited from the clock being fast because they could leave and avoid the rush at the end of the workday. According to the grievor, Mr. Daly became very authoritative but the grievor put the time on the clock back to where it had been after Mr. Daly left the area. He denied that there had been a shouting match but agreed that they probably had raised voices. Another incident stated by Mr. Daly involved a mouse that the grievor had at his desk in a metal container. The mouse was trying to climb out of the metal container which understandably alarmed some employees in the area. The grievor explained that while on an escalator he saw a small mouse and he went to a garbage can where he obtained a coffee cup. He then got the mouse, put it in the coffee cup, and took it to his office where he put it in a Planter's peanut tin can. The peanut can had a plastic lid on it. One of the female employees opened the can and screamed. He explained that he planned to take it home and make a pet out of it or let it go. According to the grievor, after he had explained the above to Ms Giraudi she seemed satisfied with his explanation and that ended the matter. Mr. Daly testified that the grievor had a desk next to his which was separated by a partition between the two desks and stood about four or five feet high. On occasion, when Mr. Daly had a client sitting at his desk he would become distracted by the grievor leaning on the partition staring down at the two of them which made Mr. Daly and his client feel most uncomfortable. The grievor said that he would sometimes look over the partition because he considered Mr. Daly his friend and meant nothing more than that. Mr. Daly indicated that on the few occasions when he spoke to the grievor about matters such as have been described above it became apparent to Mr. Daly that the grievor did not like authority and explained that he had lost his "cool" during the clock incident which resulted in a shouting match and while being sorry about it stated that feelings had built up and he just exploded. Mr. Graham Thurston worked in the same area as the grievor for approximately one year. According to Mr. Thurston, it was scary coming into work because every day was a new adventurous experience. He stated that the grievor would constantly stare at him at his desk and on one occasion he and the grievor were talking about a certain case early in the morning during which the grievor continually raised his voice. At one point during the Thurston-grievor conversation, Ms Margaret Smith, a co-worker, interjected asking the grievor to be more quiet whereupon he lashed out at her and Mr. Thurston had to accompany Ms Smith downstairs so she could get her thoughts together. She was pregnant at the time and was quite emotional. Mr. Thurston stated that he honestly would not want to work with the grievor again due to the experiences he had encountered in the past. Ms Anna Grajpel was a counsellor in commutations in 1988 who worked near the grievor. In fact, at one point the grievor sat at a desk next to hers. She complained to management because she felt that the way the grievor carried on telephone conversations with clients was inappropriate. She complained that if something was not done she would ask for a transfer elsewhere. She testified as well that when Mr. Pompa tried to deal with the grievor there would always be a screaming match. It was her opinion that while Mr. Pompa was not confrontational the grievor's nature was the opposite. She too testified that she would not want to work with the grievor again. The employer intended to call Mr. Pompa but the union objected to having him appear as a witness. The panel ruled that the employer could call whatever evidence it planned providing the evidence was relevant to the matter at hand. Counsel caucused following which it was agreed that if Mr. Pompa had been called to give evidence the thrust of that evidence would have been that he dealt with the grievor in the manner that he did because he thought the grievor was psychologically unwell. We understand that Mr. Pompa has since retired. Ms Margaret Smith who was employed as a vocational rehabilitation counsellor in the rehabilitation resources branch in commutations also testified. She found the grievor to be very disruptive causing a very tense environment. One was never sure what would occur on any given day. It could be a volatile situation involving the grievor yelling or being disruptive, or indeed it could be a normal day. It was her view that there was always a lot of yelling going on in the office. Ms Smith testified that she was personally upset and being pregnant with her first child left her active employment in June of 1987. She recalled that in May or June when she was in her cubicle she overhead the grievor and Mr. Thurston talking which was indeed a yelling match. (This is the same incident to which Mr. Thurston testified above but which had an added ingredient which follows shortly.) She stood up and told him to calm down that there was no reason to talk in the manner that he was and the grievor lashed out at her saying that it was none of her business. Ms Smith retorted that it was her business as he was involving the others in the office and was disrupting their work. The grievor continued to direct comments to her which so upset her that she had to leave the office. (As stated earlier, she was accompanied by Mr. Thurston.) Ms Smith also related an incident that occurred away from work. She stated that the grievor lived in an area near where she lived and in May or June, 1987, while in her car at night he pulled up behind her with three others in his car. When she turned left he followed and started honking his car horn and making gestures at her. He eventually passed her and cut her off. It was at this point that Ms Smith saw another man about the grievor's age, the grievor, and two younger people in the grievor's car. Ms Smith stated that she would not want to work with him again and did not think that she had to work with him as he frightened her. The grievor denied that he had driven his car near her. He further stated that his was a two-seater car and four people could not get in it. He denied having been involved at all in what Ms Smith revealed above. The grievor testified that he wants to go back to being employed with the Workers' Compensation Board. He stated that he has worked there for more than 12 years and he likes working with people. It is his belief that he has a contribution to make in the field of rehabilitation and has been living in hope during these past years to return. He believes that this hope is a form of therapy. The position he wants to be placed in is that of rehabilitation counsellor and he would like to be a field counsellor or anything else at the level of rehabilitation counsellor. He stated that he needs to return to work and that the employer is aware of all of his past and he feels that he needs a chance to be returned as the employer is in the field of rehabilitation. As stated on p. 261 of this decision, the grievor returned to active employment on January 11, 1988, and was assigned to the position of "Controller" in investigation services. In charge of investigation services was Mr. David Chrastina, manager. The grievor's return to active employment was due to a managerial decision that occurred at a meeting on January 5th. The meeting consisted of Mr. Doug Cain, executive director, development management services; Mr. Reg Jones, acting director, administrative services branch, and Mr. David Chrastina, manager investigation services. It was decided at this meeting that a temporary position would be created within the investigation services section to accommodate the grievor until his trial took place which was scheduled for March, 1988. It was also decided that the position would be low profile, ensuring no interaction with the board's clients and minimal interaction with board employees (ex. 5). Mr. Chrastina testified that the low profile and no interaction aspects of the decision was due to the nature of the charges that had been identified by the media. Mr. Chrastina did not hide his dislike at having to accept the grievor in his midst. He stated that he found the grievor's presence and having to work with him to be repulsive. It must be pointed out that Mr. Chrastina's supervision of the grievor was indirect there being other supervisors directly over the grievor who in turn reported to Mr. Chrastina. Mr. Chrastina informed the panel that between January and March the grievor's presence was low key; that he kept to himself, and that there was very little disruption. After March, however, things changed. The grievor's appearance became irregular. Some days he would appear fairly well groomed while others he looked like he had slept in a sewer. His hair would be unkempt, he would be unshaven, and he would have bags under his eyes. In July a get-together was planned for a staff member who was leaving. The grievor acknowledged to Mr. Chrastina that he did not think his presence at the gathering would be acceptable to staff and did not attend. By October, concerns among staff were growing (ex. 4, Tab 37) and by December matters between the grievor and Mr. Chrastina had reached the boiling point as far as Mr. Chrastina was concerned. The litmus point centred around what has been referred to as the Christmas luncheon get-together which was held on Friday, December 16th. Apparently it had been an annual event for the staff in investigation services to gather together at a local restaurant during the holiday season. 1988 was to be no exception and a notice was put up on December 1st informing staff of the time and place for the get-together (ex. 14). The notice went up on December 1st with a request to inform Sandra of one's intentions by December 5th if they planned to attend on December 16th. The notice ended with the words, "Everyone is Welcome. See you there." The grievor indicated his intention to attend. However, Mr. Chrastina decided the grievor would not be a welcome attendee at the gathering and the grievor was so informed. Without going into a lot of detail the grievor attended the gathering but the restaurant was informed that the employer would not be responsible for any indebtedness the grievor might incur. Other members of staff were treated by the employer. The grievor alleged discrimination and harassment and it was "resolved" on December 20th when the employer offered the grievor $7.50 (ex. 42). The grievor refused the $7.50. On December 20th, Mr. Chrastina recommended to his superiors that the grievor be placed on a paid leave of absence (ex. 44). His recommendation was adopted as can be seen in para. 7 of Mr. Chrastina's termination letter of June 26, 1989, which has been reproduced near the beginning of these reasons. While Mr. Chrastina was on the witness-stand it became very obvious through his comments and demeanour that acceptance of the grievor into investigation services was not his idea. However, he tolerated the grievor's presence because the plan was that it would be temporary in that it would be over by March. But as we now know that was not to be the case. Through court delays the grievor's presence continued through all of 1988 until December 20th when Mr. Chrastina recommended that the grievor be placed on a paid leave of absence. It appears to the panel that Mr. Chrastina's patience and tolerance of the grievor's presence in investigation services had fully run its course. Mr. Chrastina has since transferred to Windsor.
Expert testimony by psychologist and psychiatrist
Dr. William L. Marshall, professor, department of psychology at Queen's University, Kingston, Ontario has taught and researched in the area of sexual behaviour for a number of years. He treats more than 200 patients a year who are homopedophiles. He has more than 80 publications in the field including three or four books. He is considered by both parties to be an expert in the field.
Dr. Marshall described pedophilia as a condition which encompasses an enduring sex preference for children involving one or both genders. People afflicted with this illness sometimes begin in early stages in life and while these preferences or urges can be controlled they cannot be eradicated. Consequently, pedophiles are always a risk to young people in society but the risk can be lowered through treatment. There are a number of factors present in these situations. Forcefulness is a factor. A disregard for the rights of others through a lack of feelings is another factor and damage that may be caused to others is yet another factor. The number of victims is likewise a factor. People with a proclivity to molest boys are the highest risk. Add to that the taking advantage of vulnerable boys, particularly in the company of an accomplice, and having a disregard for the damage that may be caused to their victims is a further factor. There is a high risk to reoffend by such people. With treatment the risk is reduced. Dr. Marshall was apprised of the evidence that several co-workers had testified concerning their resistance to having the grievor return to their place of work. When Dr. Marshall was asked whether or not it was wise to return the grievor to a hostile work environment he responded that treatment is critical in such situations. One has to deal with stress and minimize it as much as possible. Stress is a factor in reoffending or not. Part of the treatment is to teach the pedophile to handle stress and to get along with others. Unless this can be clearly demonstrated it would be unwise to return him to a hostile environment for the grievor's long-term interests. Dr. Marshall was asked to rank three possible conceptual situations — (1) return the grievor to a hostile environment; (2) locate him in another work environment where his personal history was unknown; or (3) continue to be unemployed. When asked to rank the factors, Dr. Marshall replied that if it is a hostile environment to which the grievor returns as pointed out in (1) he would rank that as being the lowest priority. Clearly, Dr. Marshall stated that it would be unfortunate for anyone to be placed in (3) but it would be better than (1). It would seem that (2) would be the preferred situation but it was not addressed directly by Dr. Marshall. Dr. Marshall emphasized that pedophilia is a mental illness which is not curable and the only hope is to control it. Basically, Dr. Marshall said that it is a matter of teaching controls and over time through effective treatment his ability to control his urges is much increased. Dr. Marshall acknowledged that one of the keys to control is participating in a treatment program followed up by further treatment.
Dr. M.H. Ben-Aron appeared as an expert witness on behalf of the union. Dr. Ben-Aron is an assistant professor in the department of psychiatry at the University of Toronto and carries on a part-time practice at the Clarke Institute of Psychiatry as well as a private practice in forensic psychiatry. Dr. Ben-Aron has an impressive curriculum vitae (ex. 9) and is considered by the parties to be an expert in the field. Dr. Ben-Aron has been treating the grievor since 1989. He provided defence counsel with his views prior to sentencing in June, 1989. Dr. Ben-Aron's letter is dated May 9, 1989 (ex. 6), and is instructive so we include it here:
At your request, I am forwarding this letter about M.B. He is aware of its contents and that they may be used by you for purposes of assisting the Court with the matter of sentencing as related to the above mentioned offenses.
M. was originally referred to me by your office for purposes of assessment with a view to his coming to see me on a regular basis for outpatient psychiatric treatment.
The psychiatric opinion expressed in this letter is based on my having seen him in my office on a regular once a week basis commencing October 17, 1988 and continuing up to and including May 8, 1989. Each session lasted approximately one hour. There were a total of 26 sessions. I was also aware of some of the background legal issues relating to the current offenses from information provided to me by you.
Mr. B. has been a willing and cooperative patient. He has attended all of his appointments faithfully and punctually and uses the time well.
Diagnostically it is my opinion that Mr. B. suffers from, 1. homosexual pedophilia; 2. a major depression; and, 3. personality problems of a mixed type.
With respect to the homosexual pedophilia, I believe that in him this is a life-long sexual anomaly.
Generally individuals suffering from a core pedophilia have this deviation as an integral part of their personality make-up and functioning in a way that is analogous to the heterosexual orientation that most "normal" people have. At this point in time despite extensive investigations into the reasons for this deviation, we do not know what causes it. In managing the care of homosexual pedophiles, irrespective of our best efforts to eliminate the deviant preference or to transform the pedophilic urges to sexual desires for age appropriate partners, we do not as yet have any treatment that will successfully eradicate this illness. We can only work to help the individual develop sufficiently strong controls to prevent pedophilic urges from being behaviourally acted out. In those individuals with high sexual drives— which is not the case with Mr. B.'s sex drive as he reports it we can dampen the intensity of sexual urges.
For his part, Mr. B. has made progress in his sessions with me in coming to grips with the reality that he suffers from this illness. He acknowledges that he is afflicted with homosexual pedophilia. He recognizes its wrongfulness and the need for him to never to sexually act out again.
In his own words, he feels quite ashamed and has on more than one occasion tearfully lamented that he did "not ask to have the illness" and since his recognizing it in himself at a very young age he has more than once wished that he was dead and that he had the strength to end his own life.
It is my opinion that Mr. B. is sincere in his desire to never act out sexually again and that he is committed to continuing in treatment with me to achieve that end. Sustained commitment to treatment is paramount given the difficulty of the task — controlling a powerful emotion such as sexual gratification — from becoming behaviourally expressed.
As far as his depression is concerned, Mr. B. is currently moderately too [sic] severely depressed. At times, this depression reaches suicidal proportions. His depression has been with him during the entire time that he has been coming to see me. To a large degree, it is a response to his current legal involvements. He feels badly about what has, and, is happening. He is afraid of what the future holds. He is ashamed of being a homosexual pedophile and feels the outcast that this makes him. The legal involvements to date have been extremely punishing to him emotionally. He recognizes that he will be going to jail and he is realistically afraid of being beaten (possibly to "death") while in custody as he reports nearly happened to him while he was in detention after first being arrested. He also faces the shame generated by the media covering his case and the potential long term ramifications this will have to his current job which has been put on hold while he awaits court, and which will likely be terminated once he is sentenced. As well, he is uncertain about what future job prospects he may have if any. He feels that he is marked as far as any potential future friendships and/or his ability in developing any kind of social support network for himself are concerned. These realities understandably have contributed to his feelings of depression and his pre-court anxiety mounts with the approach of his next court date, the depression has and is getting worse.
His personality problems act in concert to predispose him to depressive episodes and to their intensifications, as well, they make him vulnerable to giving into his pedophilic urges. M.'s personality problems are best characterise [sic] by deeply seated feelings of insecurity, mistrust of mature adult relationships, a tendency to respond with defiance and feelings of rebelliousness towards authority figures or individuals in supervisory roles. The personality difficulties in him stem from his own early rearing experiences which at times were quite brutalizing. As a child and early adolescent, he was a victim of physical, emotional and sexual abuse. In session after session, he would report to me how his life was a continuing torment for him during his childhood years. Understandably this experience left him distrustful of interpersonal relationships and with an inability to meet his natural and appropriate needs for affection and closeness within the context of age appropriate peer relationships. These inadequacies have over the years resulted in his failure to achieve any type of meaningful sustained intimate relationships. In turn his failure to meet his needs for closeness and intimacy has resulted in his regularly experiencing depressive episodes. At times his depressions have reached suicidal intensity.
Unfortunately, his unmet affectional needs and his homosexual pedophilic proclivities have in the past combined to result in pedophilic behaviour. He reports that he is at greatest risk for losing control when he experiences high levels of stress and/or depression.
M. is an inherently intelligent man who because of the psychological handicaps outlined above has never achieved the full measure of his innate capabilities — academically, vocationally, or socially.
He genuinely wants relief from his hurt and emotional turmoil; he does not want to get into trouble with society; he does not want to be the object of shame, derision and societal scorn. He is currently hurting very much and he is seeking out treatment to make things better. I believe his commitment to treatment is sincere and that he will stick with the treatment program he has commenced with me and that he would continue to come and see me on his own volition if permitted to do so, even well after any legal obligations mandate him to come and see him [sic]. For my part, I am certainly willing to continue and provide him the care that he requests and requires.
To date, his progress although sure, has been very slow; in part, this is because of the emotional impact on him made by his fear of impending court proceedings.
At this time, I would predict he will require continuing treatment for a prolonged period. How Long? — will be able to be determined only once he has been in treatment after he has met his legal obligations and I can assess his progress and response to treatment in the absence of court generated stresses.
The main thrust of treatment will be to help him with his personality problems, his depressions and to help him consolidate his personality strengths. We will also work to help him develop an external support network to assist him in keeping any pedophilic urges well under control.
I am mindful of the extremely serious nature of his current offenses and wish that I were writing you a glowing letter that could reassure you that Mr. B: s recovery was imminent. However, Mr. B. suffers from a number of seriously deeply rooted problems that will require long term supervision and interventions. The only reassuring thing that I am able to say at this time is that Mr. B. is genuinely in pain, is genuinely motivated to continue in his treatment with me, and that over the past several months we have established a good treatment relationship.
Although, interrupting his treatment might and probably will cause a set back to some degree in his course, it is my opinion that irrespective of what happens in court, eventually, he will continue in his treatment with me.
I hope my letter is of some assistance to you and to the court if you use it in that regards. If there are any questions please do not hesitate to call me, otherwise I hope this finds you well.
Dr. Ben-Aron testified that the grievor has responded well to therapy. He believes that the grievor has not acted out since October, 1988, and his depression has been lifted and stabilized. Dr. Ben-Aron's belief is based on information told to him by the grievor. So far as the personality issues are concerned, Dr. Ben-Aron stated that they were working on those issues. When asked as to the prognosis for the grievor Dr. Ben-Aron stated that what we are dealing with is a chronic difficulty but that he is heartened because the grievor has not acted out in the past four years which augurs well. (Again, we emphasize that the statement of not acting out is what Dr. Ben-Aron believes as a result of being so informed by the grievor.) Dr. Ben-Aron offered his opinion that it is significant that the grievor have a job. He explained that a job gives one the structure of self-esteem and one becomes less vulnerable to life's stresses. He stated that as a package the less stress in one's life the stronger his urges are able to be kept in check. A job gives one a sense of purpose; structure; future; self-esteem; and a sense of investing in one's self-worth as a person. As far as being reinstated at the Workers' Compensation Board, Dr. Ben-Aron said there were two key issues for the grievor. One, that he not be placed in a position where he would have to face a lot of temptation. As an example, he said, "one ought not to put a man who was on a diet in a pastry shop". Or, in the grievor's case, do not put him in a job where there are many boys which would be unfair to him. Two, the environment is important. The grievor needs a posting in which he is treated fairly and objectively by his supervisors. That is to say when the grievor does a good job he should be complimented but on the other hand when he does not do a good job he should be spoken to. That is to say it is key that he be under the supervision of fair and objective supervisors. Counsel for the union informed Dr. Ben-Aron that the panel has the authority to reinstate the grievor and to include conditions surrounding any reinstatement. When asked if he would be willing to continue to treat the grievor on a continuing basis, Dr. Ben-Aron replied that it should be clear that he was going to continue working with the grievor whether the panel issued a reinstatement order or not. Further, Dr. Ben-Aron said he would be willing to provide the employer with feedback if given permission to do so by the grievor. When asked for his opinion concerning some of the grievor's activities at work that have been described above by his co-workers, Dr. Ben-Aron stated this demonstrated some consistency with his personality; that is, a defiance or rebelliousness. He acknowledged that a homosexual pedophile is one of the most difficult patients to treat. They suffer a deeply entrenched drive which is very sustained and are the highest risk to reoffend. One of the thrusts of the employer throughout this matter to this point has been that the grievor resents authority exhibited by his supervisors and co-workers. During the giving of his evidence, Dr. Ben-Aron commented about the treatment visits and therapy being given to the grievor and the presence of probation officers. The probation officers were seeking information from Dr. Ben-Aron about the grievor's progress and continually insisting that the grievor regularly attend therapy sessions. According to Dr. Ben-Aron, the probation officers withdrew their intervention when it became apparent that their presence was having an adverse effect on the grievor's treatment. While they continued to insist that he attend and participate in therapy he would attend at Dr. Ben-Aron's office and simply sit there. Once the probation officers removed their presence the grievor willingly participated in his treatment and therapy.
Evidentiary matter
The employer was the first to call evidence in this matter. Mr. David Chrastina began his evidence-in-chief on October 23, 1991. While in the course of giving evidence, the panel was informed at the commencement of proceedings on August 5, 1992, that Mr. Chrastina would step down in order that expert witnesses on behalf of both parties could appear and testify. Accordingly, August 5, 1992, was devoted to hearing evidence from Dr. Marshall. August 11, 1992, was devoted to hearing evidence from Dr. Ben-Aron. Dr. Ben-Aron undertook to provide the panel with dates on which the grievor attended at his office. By letter dated August 18, 1992 (ex. 10), the doctor provided that information which reads:
RE: M.B. The following are the dates at which times I met with Mr. B. Each session was approximately one hour in duration:
1988 October 17, 24 November 7, 14, 21, 28 December 5, 19
1989 January 9, 24 February 1, 8, 15, 20, 27 March 6, 13, 21, 27 April 4, 10, 17, 24, 26 May 1,3,8, 11, 16 June 6, 12 July 5, 19, 30 September 10, 24 December 25
1990 January 4,12,15,19, 22, 26 February 5, 8, 16, 20, 22 March 5 May 4, 17 June 7, 19
1991 January 17 February 14 March 7, 19 April 29 May 21 September 4, 26 October 3,10,15, 22, 29 November 19, 28 December 18
1992 January 8 February 5 March 4 April 1, 22 May 21 June 30 July 29 August 12
Total number of appointments: 78.
On January 4, 1994, the grievor took the witness-stand and began giving evidence-in-chief. At the conclusion of that day (January 4, 1994) counsel for the employer requested that the union provide a list of dates when the grievor visited Dr. Ben-Aron since August 12, 1992, which was the last date on the list that was provided by Dr. Ben-Aron in ex. 10. Counsel for the employer made it crystal clear that what he wanted was the list of dates only and no more. The union undertook to provide such information. Upon reconvening on January 12, 1994, the union produced a letter that it received from Dr. Ben-Aron. Dr. Ben-Aron stated that the grievor attended at his office on September 15, 1992, October 5, 1993, December 22, 1993 and January 11, 1994. This was the precise information the employer sought. However, Dr. Ben-Aron's letter continued with explanatory comments which the employer objected to being received. It was the position of the employer that any editorial comments made by Dr. Ben-Aron were for the purpose of embellishing the record and it was obvious that counsel for the union had requested more than the dates that had been asked for. Counsel for the union conceded that such was the case. He stated that he decided that the time lapse between September 15, 1992 and October 5, 1993, could not be submitted without some explanation for its duration. Counsel for the employer countered that the number of visits to the doctor's office was sufficient and "speaks for itself". Counsel for the employer continued to say that if the panel accepted the remainder of Dr. Ben-Aron's letter, he wanted to have the right to bring the doctor before the panel with the right to cross-examine him on its contents. After caucusing, the panel ruled that it would allow Dr. Ben-Aron's letter in but that it would grant the employer the opportunity to cross-examine Dr. Ben-Aron if it so chose. In the event that the employer wished to question Dr. Ben-Aron it was to give notice to the union and have the union notify Dr. Ben-Aron to appear in order that he could be subjected to cross-examination by the employer. Dr. Ben-Aron's letter of January 11, 1994, reads as follows (ex. 17):
Re: B.M. In response to your specific request for information regard [sic] Mr. B.'s continued treatment with me, I am writing to confirm, since my letter to you of August 18, 1992, Mr. B. has attended my office on September 15, 1992, October 5, 1993, December 22, 1993 and January 11, 1994.
I should add that over that time interval, he has telephoned my office on a number of occasions but no records were kept of these calls and I cannot give their dates.
Mr. B. has attended appointments in keeping with his need at a frequency in compliance with our mutual agreement. To the best of my knowledge, he has been stable and functioning satisfactorily. He has lived at the same residence throughout that time period (since August 1991). He has structured his time by volunteering on a regular basis with the Christian Community Centre and more recently, for the last three months, with Stop 103— Food Bank. He spends his time in this manner awaiting resolution of his work grievance appeal.
To the best of my knowledge, there has been absolutely no further involvements with young boys or any hint of such attempts. I am extremely pleased with this sustained control which has now lasted over 6 years (since November 1987).
I continue to be available to see M. on an as needed basis. I believe we have a very good rapport and that he will not hesitate to turn to me for assistance with any difficulties or temptations that might arise.
I hope the above answers any questions.
At the commencement of the hearing on June 23, 1994, the union informed the panel that it had Dr. Ben-Aron present and wished to recall him to have him explain the grievor's attendance (or lack thereof) at his office. The parties made a number of submissions to the panel. The union made several submissions in support of why the panel ought to allow the union to recall the doctor whereas the employer argued strenuously that he ought not be recalled. The parties agreed that what was being attempted here was not the calling of reply evidence but it was the union's position that because of the unusual manner in which the evidence was called concerning the expert witnesses that it ought to be given the opportunity to recall Dr. Ben-Aron to explain the contents of his letter. The unusual manner referred to relates to the calling of the experts after one another instead of hearing the employer's expert and then waiting until the union called its evidence before hearing Dr. Ben-Aron.
The panel reminded the union of its ruling on January 12, 1994, when it allowed in Dr. Ben-Aron's letter (ex. 17) over the objection of the employer. But in so doing, the panel agreed to the employer's request that should it wish to cross-examine Dr. Ben-Aron on the contents of his letter then it would to be allowed to do so. Counsel for the employer informed the panel that it did not intend to cross-examine Dr. Ben-Aron on the contents of his January 11, 1994 letter. The panel asked counsel of the union to explain his purpose in recalling Dr. Ben-Aron and in particular what he expected Dr. Ben-Aron could add to the contents of his letter which would further assist the panel in arriving at a decision. While counsel replied that the doctor would so inform the panel, the panel insisted that counsel, who was wishing to recall the doctor, inform the panel what it was he anticipated the doctor would say which would further enlighten the panel in its deliberations. When counsel did not provide any information as to the reasons he wished to recall the doctor, it was ruled that the objection of the employer would be upheld. The contents of the ruling read as follows:
Upon reviewing our notes of January 12, 1994 — the submissions made on behalf of the employer concerning our ruling of January 12 appears to be correct. The ruling was more circumscribed than the union suggests. Therefore, in keeping with our original ruling and the submissions made today we uphold the employer's objection.
Counsel for the union then requested that the above ruling be included in the award pointing out that it was the union who had wished to recall Dr. Ben-Aron and was prohibited in doing so.
Submissions on behalf of the employer
The employer submitted that it had just cause to discharge the grievor. It relied on Re Dorr-Oliver-Long Ltd. and U.S.W., Loc. 4697 (1973), 3 L.A.C. (2d) 193 (O'Shea). Arbitrator O'Shea referred [at p. 199] to an earlier decision of Re Millhaven Fibres Ltd., Millhaven Works, and Oil, Chemical & Atomic Workers Int'l Union, Loc. 9-670 (1967), which had set out five factors that were to be considered when an employee is discharged for conduct away from the workplace. We were referred to a number of other decisions but it was pointed out that the Millhaven case is the seminal case. Counsel pointed out to the panel that later cases indicate that not all five factors are required but merely one of them. The factors set out in the Millhaven case are:
There are a number of arbitration cases which deal with disciplinary matters arising out of the conduct of an employee at a time when he is not in the Plant. Generally speaking, it is clear that the right of management to discharge an employee for conduct away from the Plant, depends on the effect of that conduct on Plant operations.
In other words, if the discharge is to be sustained on the basis of a justifiable reason arising out of conduct away from the place of work, there is an onus on the Company to 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.
The panel was taken through the five factors and the employer maintains that it has met all of them. It was urged upon the panel to recognize that the employer is not a rehabilitation centre nor an agency to treat the grievor. The position in which the grievor finds himself is due entirely to his own choosing. His fellow workers do not want him back; he will not accept authority; and is an obstructionist in the workplace. Further, even if the panel were to put him back with conditions there is no guarantee that those conditions can be put in force over an indefinite period of time. The employer says that it has had enough. It does not want the grievor back in its employment and seeks to have the dismissal upheld.
Union submissions
Counsel for the union does not dispute the fact that the Dorr-Oliver case sets out the tests. But even within Dorr-Oliver the facts must determine each individual case. Counsel referred the panel to a number of cases that demonstrate where an individual is convicted on sex offences it does not necessarily follow that dismissal constitutes just cause. Re Calgary (City) and A.T. U., Loc. 583 (1981), 4 L.A.C. (3d) 50 (Beattie), involved a bus driver. He was convicted of sexually assaulting a 14-year-old female who baby-sat for him. The offence occurred while he was off duty but he was discharged. The board held that the grievor gave the employer cause for discipline but that a suspension of six months was more appropriate than discharge. The union referred the panel to Re Emergency Health Services Commission and C.U.P.E., Loc. 873 (1988), 35 L.A.C. (3d) 400 (Black), for the proposition that employer claims of adverse impact on public reputation must be carefully assessed. It also submitted that in cases of off-duty conduct the matter does not end with the tests set out in the Millhaven Fibres case since mitigating factors can still be argued and considered. The union submitted that discharge was too severe a penalty in these circumstances and urged the panel to order the grievor's reinstatement with whatever conditions the panel seems to be just and reasonable in the circumstances.
Considerations
Given that this case involves the termination of a convicted pedophile, the issues are necessarily complex. However, the proceedings were unusually protracted and difficult, even allowing for that feature. The numerous procedural and evidentiary rulings that the panel was required to make as a result observed the sensitive nature of the issues and they balanced the need to protect the grievor's identity and privacy with the employer's right to make a "full" case.
Because we were dealing with a convicted homosexual pedophile, the forensic psychiatric evidence played an important role in understanding the characteristics of the disorder — both in general and as expressed in the individual personality of the grievor. Adding to the cogency of the psychiatric evidence is the professional stature of the witnesses (i.e., two of this country's leading experts in deviant sexual behaviour). Two features of the disorder in particular stand out: the fact that of all deviant sexual preferences, homosexual pedophilia is apparently the most difficult to treat; and the fact that there is no cure. Rather, the illness must be carefully monitored and controlled. Dr. Marshall prefers to treat patients in groups whereas Dr. Ben-Aron's approach is to see patients on a one-to-one basis. For our purposes, it is less important whether Dr. Marshall's group approach is more effective than Dr. Ben-Aron's one-on-one approach, in view of the second feature; that is, what matters is whether the grievor has had and will continue to have regular monitoring and treatment so that he will not act out in the future. In this regard, the "gap" in his visits to Dr. Ben-Aron is disturbing and, in our view, was not adequately explained by the grievor. While the "gap" does not alter the direction of the decision in this case, it nevertheless will enter into the issue of remedy. Should reinstatement be ordered it ought, inter alia, to be conditional upon the continued monitoring of the grievor by Dr. Ben-Aron who has indicated his willingness to do so. Returning to the differences between the two experts in terms of clinical approach to treatment, the divergence of medical opinion is most easily resolved by remembering that Dr. Ben-Aron has been directly involved in treating the grievor, whereas Dr. Marshall has not. Thus, the panel need not endorse one approach over the other. The testimony of the treating physician should as a matter of course be given more weight than that of the expert who is describing a class of persons — unless the treating physician is clearly biased in favour of the patient. We do not see that present here. While Dr. Ben-Aron is no doubt anxious to help the grievor regain his job, the picture of the grievor's personality that emerged from his testimony appeared fair and comprehensive. He knows that the grievor has difficulty with authority and that he has some deeply entrenched personality characteristics that are in some respects inimical to a normal employment relationship. And yet, Dr. Ben-Aron remains sanguine about the grievor's ability to control his illness and his ability to be reintegrated at work, albeit in a non-field position. The rebelliousness that Dr. Ben-Aron referred to as a component of the grievor's personality was readily apparent during the grievor's cross-examination. He was consistently argumentative and defensive. In other words, we know both from his psychiatrist and from observing the grievor that he has certain personality characteristics which will make it difficult for him to get along with supervisors, in particular, and also co-workers. The challenge for the parties should he be reinstated will be to find or create a position that takes such factors into account. The challenge for the grievor will be to suppress these characteristics so that he can maintain employment. We think it is unrealistic to expect complete self-awareness on the grievor's part (i.e., to expect him to acknowledge that all his problems with co-workers and supervisors in the past were his fault), because he has an abrasive or anti-social personality. He acknowledges that he is a homosexual pedophile. Can we expect any greater degree of insight than that? The degree of personal insight is not relevant to the issue of whether there was just cause for discharge. Again, it becomes relevant only in terms of fashioning the appropriate remedy, if there was not just cause. That said, we believe that the problems with co-workers were in fact largely the grievor's fault. The incidents described by bargaining unit employees occurred for the most part before the grievor was charged. We are inclined to accept their versions of events over his where there is a conflict in testimony. Anyone with the grievor's personality matrix presents obvious problems in terms of reliability of evidence. For instance, we believe that the incident with Ms Smith in her car happened as she described it. The grievor's total denial of the incident is very troubling but, of course, all these incidents as described by fellow employees went undisciplined.
The evidence with respect to supervisors is more mixed. We think that Mr. Chrastina was determined to make the grievor feel isolated, a social and moral leper. Mr. Chrastina's hostility to the grievor was palpable in the hearing room. The failure of that supervisory relationship must be laid as much at Mr. Chrastina's door as at the grievor's.
The relationship with Mr. Pompa appears not to have been quite as acrimonious but nevertheless was rocky. We know that Mr. Pompa adopted a non-disciplinary approach because he felt that the grievor was ill. And, of course, therein lies an error on the employer's part — its failure to follow progressive discipline in dealing with the grievor. We did not hear from any of the supervisors whom the grievor says he got along well with such as Rita Giraudi, Lenore Lecky or Len Brown, nor from any bargaining unit employees who, according to the grievor, today "wish him well". Summing up the evidence from the workplace, what we see is a history of erratic, difficult, and often aggressive behaviour on the part of the grievor towards clients, co-workers and supervisors. This conduct seems to have escalated around the period leading up to the grievor's arrest on criminal charges. In the period there-after, the conflicts were largely confined to one supervisor, Mr. Chrastina (the grievor had been removed from all contact with clients and had minimal interaction with co-workers). In our view, Mr. Chrastina was equally responsible for those conflicts. In our view, the employer made an error when it failed to follow progressive discipline. We are inclined to agree with the union when it says that nothing relieves the employer of the obligation to follow a corrective course, particularly where the grievor's general uncooperativeness was so extensive and where it persisted over a number of years. The employer tried to excuse this failure by arguing that Mr. Pompa adopted a non-disciplinary approach because he believed he was dealing with a "sick" individual. That simply is not good enough. If Mr. Pompa did believe that, then the employer should have instigated some medical investigations or sought assurances from the grievor's doctors.
The grievor was discharged in part for a "pattern of disruptive behaviour" in the workplace. Yet there is nothing on the disciplinary record between the one-day suspension and the discharge. The employer cannot have it both ways. It cannot sit on its hands and allow the disruptive behaviour to slide treating it as non-culpable then suddenly decide the behaviour is culpable and use it to support discharge. The most compelling mitigating factor is the failure to follow progressive discipline. However, economic hardship is also significant. Given the nature of his criminal conviction, the grievor will presumably be unemployable if the discharge is upheld. At the end of the day, we are left with the impression that the grievor was discharged mostly for his crimes. The conviction was not simply the trigger as argued by the employer but was the very heart of the decision. The employer, of course, relies on the moral reprehensibility of those crimes and the general repugnance with which they are regarded in arguing that the grievor should not be reinstated (i.e., employees would be reluctant to work with him). No one denies the repugnancy of the grievor's crimes. But the nexus with the employment relationship is slim, in our view, provided the grievor is not returned to a field position where the possibility of contact with children or clients might arise. As for resistance on the part of fellow employees, that should not be the decisive factor if other factors weigh in favour of reinstatement. Also, the problem can be addressed through a transfer to a different location or to a different position. Finally, the evidence of Frank Mucie, union president, was that as far as he knew there was no such resistance on the part of employees to the grievor's return, at any rate, no one had complained to him about that. This is a large employer after all. It may not be possible to find a place within the organization where no one has heard of the grievor but surely it will be possible to find a place where he is working with new people, both co-workers and supervisors. (It should be pointed out that both Mr. Chrastina and Mr. Pompa have departed.) On the issue of public reputation, we think the employer's claims are exaggerated despite the initial publicity that the case attracted. The union's point about the employer being a monopoly is a good one. The fear of loss of clientele is non-existent because competition is non-existent. As for damage to its general reputation, the employer led no evidence to that effect. On the issue of seniority and its implications in the event of reinstatement, the employer claims that it will be impossible to "confine" the grievor because he can exercise his seniority rights to transfer to other more risky positions once reinstated. The answer to that argument is that parties commonly fashion all kinds of conditions and restrictions in executing reinstatement agreements. Provided the union and the grievor agree, there is no obstacle in the collective agreement that would threaten to undo whatever arrangement the parties and the grievor choose to make.
Decision
While the panel shares the feelings of society of the general repugnance of the grievor's crimes we must remember that our role is not one of a court's original jurisdiction to punish individuals who commit crimes against society. Rather, the panel must keep its eye focused on the role with which it was mandated. That is, to review the employer's action and determine whether it had just cause to discharge the grievor for unacceptable work performance and/or unacceptable behaviour. In carrying out that review, the panel begins, because of the circumstances of this case, with reviewing the interactions between the employer and the grievor in the workplace. We know that the employer regarded the grievor's behaviour and work performance as being below an acceptable standard. This was made clear by the one-day suspension that was handed out by Mr. Pompa in July, 1987. While the evidence is clear that the grievor's behaviour and work performance did not improve no further discipline was meted out. While one may sympathize with the position the employer took one cannot dismiss the fact that in today's employer-employee relations there is an established approach to dealing with such matters. The panel has pointed out that such an approach which has been widely adopted in labour relations circles is that of progressive discipline. When an employee fails to meet an acceptable standard established by the employer, assuming that standard is reasonable in all of the circumstances, it is incumbent upon the employer to bring to the attention of the employee that his/her work performance and/or behaviour must improve to that acceptable standard. Should the employee fail to improve the employer then must bring to the attention of the employee through progressive forms of discipline that the performance and/or behaviour remains below an acceptable standard which must be improved. As we know, progressive discipline assumes more severe forms of discipline as time goes on which is intended to bring home to the employee his/her continued failure to improve to the acceptable standard. This was not done in the instant situation. Accordingly, from a strict employer-employee relations point of view, the employer failed to carry out any form of progressive discipline. As stated earlier, this was an error on the part of the employer who now attempts to demonstrate that it had just cause for terminating the services of the grievor. While we can understand the employer's explanation as to why it decided not to impose progressive discipline its decision fails to hit the mark. That is to say, without bringing home to the grievor that his work performance and/or behaviour was unacceptable it is understandable if he failed to comprehend the employer's dissatisfaction with him as an employee.
The panel appreciates the difficulties the employer was encountering in its dealings with the grievor. We know from the psychiatric evidence that people afflicted with the grievor's illness have certain known attributes. We accept that pedophiles generally have a tendency to seek attention. This may explain the mouse situation and the clock incident as well as the staring by the grievor over partitions which made matters uncomfortable for others in the workplace. The panel further learned that a pedophile may be manipulative and this is especially so in manipulating young boys who are vulnerable. Indeed, the panel believes that the grievor may well have attempted to manipulate it through the course of these proceedings. In this regard, we specifically refer to the "gap" in the grievor's attendance at Dr. Ben-Aron's office. Dr. Ben-Aron appeared before this tribunal on August 11, 1992, and the evidence reveals that the grievor was a regular attendee at his office up until that time. He attended once more a month later and then a gap of 13 months passed before he again attended at Dr. Ben-Aron's office. It is not difficult to speculate that the grievor is not committed to receiving psychiatric treatment but only did so to demonstrate to the tribunal that he was in fact committed. Once having apparently satisfied the tribunal of this fact he then demonstrated that he was not committed to treatment after all. There is also another matter which has been puzzling to the panel. It will be remembered that the panel directed the parties into mediation during which time the employer placed an offer on the table which was refused. Why he did not accept it has remained a puzzle for this panel. This is especially so in light of the fact that the offer was made approximately three years ago in October, 1991. However, not knowing the terms of the offer this matter can have no effect on the final outcome of this decision. In considering this matter strictly from a labour relations point of view, the panel has concluded that the employer has failed to establish that it had just cause to terminate the services of the grievor. On the other hand, the panel finds that the grievor was not blameless in what has transpired. He has demonstrated that he is a manipulative individual who resents authority and who, because of his personality, finds it extremely difficult to get along with his co-workers. In light of all of the foregoing it is this panel's decision that the grievor must be reinstated in his employment but with certain conditions. The employer must not consider that its hands are tied behind its back because of the grievor's illness. We all know that he does have an illness but we further realize that he must endeavour as best he can to control himself in a manner that permits him to interact with his co-workers and his supervisors and demonstrate that he is a productive employee. The employer must be free to assign the grievor to work situations with which it feels comfortable. The grievor, on the other hand, must accept these assignments and perform to the best of his ability in order that he may demonstrate to the employer that he is willing to accept his duties in a responsible manner and be a productive employee. Accordingly, the panel orders that the grievor be reinstated on the following conditions:
(1) He is to receive no compensation or accrual of seniority from the date his services were terminated on June 26, 1989, to the date of reinstatement.
(2) The employer is to be free to assign the grievor to positions that it considers to be in keeping with its requirements but this does not include rehabilitation assignments in the field that the grievor had been performing between 1979 and 1985.
(3) The grievor is required to undergo psychiatric treatment on a regular basis with a psychiatrist, preferably Dr. Ben-Aron, and must give authorization to the psychiatrist to keep the employer fully apprised of his treatment, his regularity of attending at the psychiatrist's offices, and any other reasonable information that the employer may require from time to time.
(4) The union and the grievor must enter into a written agreement with the employer that the union and the grievor accept these conditions as a condition of reinstatement. If either of them do not agree to entering into such an agreement with the employer then it will be apparent that the grievor is not desirous of changing his ways in the workplace and the employer will, therefore, not be required to reinstate the grievor but that the termination will stand.
(5) Providing the above conditions have been met, the employer must be afforded a reasonable period to make arrangements with the union and the grievor for the grievor's return to active employment. The panel considers a reasonable period to be no more than 15 working days following the date of this decision at which time the grievor's reinstatement to active employment shall be deemed to occur.
Conclusion
The failure to follow progressive discipline was so fundamental that it overshadows all else in this case including whatever elements of the Millhaven Fibres tests may have been met. Thus, the discharge was without just cause. Reinstatement is warranted because the grievor deserves an opportunity to demonstrate that he can be a productive and co-operative employee. However, his conduct has hardly been blameless and to award compensation as requested seems punitive to the employer. Hopefully, the employer will make an honest and bona fide attempt to reintegrate the grievor and ensure that he does not face a hostile work environment. The caution to the grievor might be that he should do his part to ensure that such an environment does not develop again. The panel will remain seised to assist the parties in the implementation of this decision should it become necessary.