GSB#2058/99
UNION# 00A219
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Houle)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE Barry B. Fisher Vice-Chair
FOR THE GRIEVOR Nelson Roland
Counsel
Ryder Wright Blair & Doyle
Barristers and Solicitors
FOR THE EMPLOYER Ajamu Boardi
Staff Relations Officer
Ministry of Correctional Services
HEARING June 22, November 1, November 2, December 14, December 15, 2000; April 17, April 18, April 26, April 27 2001.
DECISION
This case involves the discharge of a Classified C.O. 2 who was employed at the Sault Ste Marie Jail for some 14 years.
The grievor was terminated because it was alleged that he sexually harassed and sexually assaulted a female unclassified C.O., who shall be referred to as Ms X.
The grievor does not deny that there was sexual contact between him and Ms X, however he claims that it was all consensual and therefore neither constituted sexual harassment or sexual assault.
This case involves to a large degree an assessment of the credibility of the grievor as compared to the credibility of Ms X. There is little independent confirmation of either parties story. Other than Ms X did provide some evidence that she had complained in a general way about the grievor’s actions before the formal complaint process was commenced on June 30, 1998, to a large degree this was a classic case of “he said, she said”.
As this case turns almost completely on my assessment of credibility, I have chosen rather than go through a long rendition of the facts, to instead focus primarily on the issue of credibility.
The specific acts which the grievor is accused of are as follows:
Sexual assault on June 18, 1998. This consisted of physically forcing himself against Ms X by holding onto her arm and hair while licking and kissing her. During this same episode he is accused exposing his erect penis and pushing it against her thigh. This was the incident which immediately proceeded the filing of the formal complaint which led to the grievor’s suspension and subsequent termination.
In 1994 or 1995, the grievor is accused of coming up to Ms X, who at the time was sitting in a chair, and straddling his leg over her so that he was almost sitting on her lap.
In 1994 or 1995 the grievor is accused of again straddling over Ms X’s chair and kissing her while she was sleeping. She awoke at that time and swung at him with the book she had in her hand.
On another occasion, the date of which is not certain, the grievor is accused of pinning Ms X against the wall of the mop locker. Ms X pushed him away and that was the end of the incident.
Sometime in 1996, the grievor is alleged to have pinned Ms X against a wall in the laundry area and forced a kiss on her.
On another occasion, the date of which is not certain, the grievor is alleged to have pinned Ms X’s arms to a wall when she reached up to retrieve some items while at the same time pushing his pelvis into her rear. At the same time he had his hands around her waist.
There are certain facts which came up in the hearing which each side added to the credibility of their witnesses. I felt however that these facts were ultimately of a neutral effect for the following reasons.
The grievor’s wife worked as a C.O. in the same Jail as the grievor and Ms X. On the one hand one could say that this means it is less likely that the parties would engage in a consensual sexual relationship under the spouse’s nose while on the other hand what type of fool would take the risk of sexually harassing a co-worker when your spouse works in the same building. Both actions seem to me to be equally foolish.
The “ relationship” never went outside the workplace. On the one hand this makes it look less likely that it was non-consensual because otherwise it would likely have blossomed outside the workplace. On the other hand it is equally conceivable that the relationship was nothing other than one of sexual flirtation and increasing sexuality with absolutely no romantic overtones. The thrill of carrying on at work in secret under the very noses of others may well have been a part of the appeal to the relationship.
The fact that she did not file a formal complaint until after the June 18^th^ incident, whereas the previous incidents would institute sexual assaults. The grievor claims that this evidence confirms the fact that she consented to at least the earlier acts, otherwise she would have complained. On the other hand Ms X testified that she felt uncomfortable in filing a formal complaint for a number of reasons, largely based on a belief that her complaints would not be taken seriously and that her ability to stay at work would be greatly reduced if she filed such a complaint. Both of these arguments have merit thus the failure to complain earlier in a formal fashion does not assist me in determining who is telling the truth.
I will now review the various issues of credibility of both Ms X and the grievor.
Ms X’s Credibility.
Issue #1
The most distressing matter in this case came up during the examination of Ms X with respect to a settlement agreement that Ms X had signed with the Ministry. By way of background, it should be noted that Ms X had filed a grievance claiming that the Ministry had failed to take adequate measures to protect her from sexual harassment by the grievor. She was represented by counsel for OPSEU in that grievance, however by counsel than Mr. Roland.
Prior to my involvement in this case, Ms X’s grievance had begun to be heard by Vice-Chair Carrier. Flowing from that hearing, the parties had reached a partial settlement of Ms X’s grievance on October 19, 1999 in which they resolved certain monetary issues regarding issues such as lost wages, medication costs, therapy and counseling costs and time off. This settlement expressly provided that the issue of compensation for pain and suffering remained outstanding. This was further set out in a ruling by Vice Chair Carrier dated May 23, 2000.
The Ministry then brought a motion before me to have the remaining issues of Ms X’s grievance consolidated with the Grievors discharge grievance. At that time I was advised and provided a copy of the partial settlement outlined above. After some discussion, this consolidation was ultimately agreed to by all three parties on October 6, 2000.
This hearing was scheduled to commence on November 1, 2 and 3 in Sault Ste Marie. When I arrived I was told that Ms X had resolved her grievance with the Ministry. She was then called as the first witness for the Ministry. Her first day of testimony was November 2, 2000. Her cross-examination began on December 15, 2000.