7b:I[968242,["/_next/static/chunks/0b_72f-e25kv0.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/2dqzcpp0iv_65.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/2-gzvss-l6hsb.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/0_th5qbdbp7fv.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/3pxtaj7c8rs55.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/1fr-v8sx5ap_7.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/2_zpbictxcli5.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/2yad5-4ibvk0m.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/0rilgbl3o5bv-.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/21ewgwknlgeas.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/2ov37zop16n27.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/0tof0ca8-y5uc.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/3sl10ogzeq_4f.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/1oye9k9wdtez4.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/2qpeh4lw4hds4.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/23d_j_uhqaepb.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/2qthtgzpqespl.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/2ey3x-m-xrf30.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/1l1-kbc27ddmr.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/06sx6w4g9hwyu.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/3abc7e_uryvi3.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/0257p7bsqes76.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/0hfvn4ww_ph62.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/15-zu1noqxrht.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/0ovufyqn1ws-o.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/08dzzn4r58_fn.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/0ce8qgl2n3g61.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW","/_next/static/chunks/3au34nv6rkr0s.js?dpl=dpl_276ZBDCaRurBBzVj3BvEC2xSgEtW"],"SidebarDataSetter"] 7c:T9e21,GSB#2009-2078 UNION#2009-0517-0102 ## IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD # BETWEEN Ontario Public Service Employees Union (Grievor) ## Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION Eric del Junco Counsel FOR THE EMPLOYER Felix Lau Ministry of Government Services Legal Services Branch Counsel HEARING November 18, 2011, January 31, March 20, November 22, 2012, January 14, April 5, May 16, November 12 & 18, December 9 & 10, 2013 Decision [1] For reasons that will become readily apparent, the parties agreed that this decision should be completely anonymized. That is to say, I will not name the grievor, or any of the witnesses. Nor will I state the name of the correctional institution involved. Further, some of the evidence that might otherwise be set out but would identify this case will not appear in this decision. It was the concern of both parties that the decision would re-ignite interest in this matter to the significant embarrassment of some. It was felt that simply providing pseudonyms for the grievor and the complainant would be far too transparent a gesture. I understand those concerns and will make every effort to provide sufficient facts so that my ultimate determination is understandable while still meeting the wishes of the parties. [2] The Employer alleged that the grievor (whom I shall refer to as “Mr. Robert Brown”) showed a naked picture of one of its employees (“the complainant”) to another Correctional Officer (whom I will call “Mr. Dan Murray”) while they were both working. Further it was alleged that the grievor made known the identity of the subject of the photograph. Once this incident became known in the workplace it created a poisoned work environment for the complainant. For these reasons, it was the Employer’s view that it had just cause for a ten day suspension and it was obliged to impose a non-disciplinary transfer upon the grievor to another institution for the sake of the complainant. [3] The grievor was a fixed term Correctional Officer at the time of the incident and when he filed a grievance. He received a letter from the Deputy Minister of Corrections outlining the reasons for the ten-day suspension that was imposed. This discipline was meted out after an internal and external investigation – both of which the Union claims were fundamentally flawed. That letter stated, in part: I have concluded that you engaged in inappropriate conduct towards the complainant which included violating WDHP policy on the ground of sexual harassment resulting in the creation of a poisoned work environment for the complainant. Such behavior is unacceptable and will not be tolerated. Having considered your admission of your unacceptable behavior, your employment record with the Ministry, and the serious nature of the allegation, I have determined that you will be suspended for 10 days (a total of 80 hours) without pay, in accordance with Sections 34 and 35 of the Public Service of Ontario Act, 2006. ……… [4] Shortly after receiving the letter of suspension Mr. Brown received another letter – which was stated to be “non-disciplinary” - from the Superintendent of his facility. In that letter the grievor was advised, in part: Once it has been determined that the policy has been violated, it is incumbent upon the Ministry to ensure that appropriate actions are taken to restore a proper work environment for the parties to the complaint. In some cases, mediation, training and/or reorganization may suffice. However, in other cases, such techniques will not be sufficient. In these situations, the Ministry may opt to separate employees. Taking into consideration all of the circumstances surrounding the substantiated complaint, it has been determined that the work of environment of the parties has been irreparably harmed, and that workplace restoring techniques would not be successful in providing a resolution. In light of this, it is my decision that your fixed term contract will be transferred to …..(another facility). Please be aware that this transfer is not disciplinary, and it is not reflective of your performance as a Correctional Officer. I trust that you understand this decision is in the best interests of everyone involved. [5] Mr. Brown filed a grievance alleging that both the ten-day suspension and the transfer were discipline without just cause and asked for reinstatement to his original institution and full compensation including monies lost as the result of the suspension and transfer. [6] The position of the Union was strikingly different at the conclusion of the evidence than it was at the outset of the litigation. It was stated that this change was because the Union is particularly cognizant of its responsibilities towards the complainant. As a result, in its concluding argument the Union asserted that if this Board determines that the grievor engaged in the activity for which he was disciplined, some level of discipline and the transfer should stand. However, if I find the grievor did not act as has been accused by the Employer, this Board should reduce the suspension – for showing a nude picture of a woman in the workplace - and allow him to return to his original correctional institution. [7] At the outset of its final submissions the Union asserted that notwithstanding the fact that nine witnesses were called in total, this dispute boils down to a simple factual difference between the grievor’s version of events and the testimony of Mr. Murray. In large measure, I agree with that assessment. [8] This matter took several hearing days to litigate. In all, the Employer called eight witnesses including the decision maker, managerial representatives who investigated the complaint, the external investigator and family and co-workers of the complainant and the grievor. Much of this evidence was relevant and appropriate to be entered into evidence. However, as contended by the Union in its closing argument, the best evidence was that proffered by the grievor and Mr. Murray. [9] As noted above, there is some possibility that if each witness and their evidence were described in full – as would normally be done in a decision involving a suspension and transfer – the identity of the complainant and the grievor would become obvious. I will only set out that area of the evidence that is essential to understand how this determination was made. [10] On numerous occasions during the course of the hearing the Union urged that the internal and external investigations undertaken in this case were fundamentally flawed, biased and wrongfully concluded. Given that I agree with the Union’s view that this case can and should be decided primarily based on the evidence of Mr. Murray and the grievor, it is not necessary to set out the considerable evidence regarding the two investigations. However, I understand why the Union had concerns. Setting aside the allegations made by the grievor regarding comments made to him by the investigator - and in this regard I make no finding - there was at least one procedural flaw that should not be repeated in the future. In the facts of this case, the notes and findings of the internal investigator were forwarded to the external investigator prior to the onset of the external investigation. The external investigator read and probably utilized these notes so some extent during her investigation. It is not surprising that the Union urged this action had the potential to bias the findings of the external investigator. The internal report should not have been forwarded to the external investigator. Further, the external investigator ought not to have read or used in any way that report and/or its attachments. [11] Much of the evidence was not in dispute. For almost two years the grievor was romantically involved with the complainant who works at the same correctional facility. Their relationship was intimate but somewhat unstable. More than once they ended the relationship but later reconciled only to separate again some months later. During one of the periods where the two were not seeing each other, Mr. Brown had a short intimate relationship with another woman who was identified as being from a particular city. It is this woman that the grievor claims was the subject of the nude photograph he showed to Mr. Murray. [12] There was no dispute between the parties that during the time the grievor and the complainant were involved in a relationship they exchanged nude photographs via cell phone. [13] Mr. Murray was subpoenaed to give evidence in this proceeding. He had been working as a Correctional Officer for approximately sixteen years at the time of the incident. At that time he had known the grievor for a couple of years. He testified that he considered their relationship to be friendly though they did not socialize outside of the institution. [14] Approximately twelve months prior to the grievor’s suspension being imposed, Mr. Murray and Mr. Brown were working together. During the course of their shift, according to Mr. Murray, the grievor asked him if he wanted to see a naked picture of the complainant. The grievor then took out his cell phone and showed him the picture of a portion of a naked woman. This photo was described variously as “lower hips”, “vagina”, “crotch” and “lower half” of a woman’s body. By all accounts the identity of the woman could not be determined because of the nature of the photograph. Mr. Murray described the woman in the picture as “small” or “thin”. He also testified that the grievor told him that the picture was of the complainant. He said that at some point later – and he could not recall when – the grievor told him that he had been kidding about the identity of the woman in the photograph. He testified in his evidence in chief that he thought Mr. Brown did not retract the statement that the picture was of the complainant until “probably” sometime “after the incident blew up.” [15] Mr. Murray testified that when he was shown the picture he was not offended. He said they laughed about it and nothing more of any substance took place at that time. According to Mr. Murray, many months later during a shift working in the Admitting and Discharge area, he found pornographic images in a magazine that was in the property of an inmate. The viewing of this material reminded him of the nude photograph of the complainant and he told his co-worker that Mr. Brown had shown him the complainant’s nude image at an earlier date. When questioned why this incident would cause him to reveal that he had been shown the complainant’s nude photograph, Mr. Murray was unsure other than the nature of the nudity. It was suggested to Mr. Murray in cross- examination that he told the other CO about the picture after seeing the complainant walk by. It was suggested that he wanted to brag that he had seen her naked picture. He denied both contentions. [16] The next discussion that Mr. Murray had about this picture was with the complainant who confronted him and asked if the grievor had actually shown him her nude photograph. According to Mr. Murray the complainant was very upset and angry. He apologized to her because he could see that had he not raised that matter with his coworker this situation would not have been known. He testified that he did not intend the complainant or the grievor any malice. He just “stupidly blurted out” the fact that he had seen a naked picture of the complainant. [17] Mr. Murray also admitted that he did tell others in the workplace about seeing the photograph but would not reveal the names. [18] Mr. Murray denied that he asked the grievor to see a naked picture of the complainant. He testified that he and the grievor were discussing ex-girlfriends and then Mr. Brown said, “hey….. do you want to see a picture of (the complainant)?” He denied that he was told it was the other woman with whom the grievor was involved. Mr. Murray specifically denied that it was clear to him at the time he saw the image that the picture was not the complainant. [19] Mr. Murray received a five-day suspension for his part in this situation. He originally filed a grievance that was to be heard by this Board but ultimately he withdrew his grievance. [20] Mr. Murray denied the grievor was prompted to show him the image of a naked woman because he himself has been showing the grievor a number of pornographic pictures from his personal email account. [21] Mr. Murray agreed that in the past – prior to his marriage - he discussed his sexual exploits openly with his coworkers. He denied that the only reason that he revealed his knowledge of the naked picture of the complainant was that she walked by him and his coworkers on that particular day and it was yet another example of his sexual bragging. [22] In his cross-examination it was suggested that the naked picture of a woman’s vagina was one of two images he saw – the second being a picture of large breasts – and that both were obviously not the complainant who is much smaller than the woman photographed. Mr. Murray recalled only one picture and it was of a small woman. [23] The coworkers who Mr. Murray told of the naked picture found their discussion extremely troubling for a number of reasons and he ultimately reported the conversation to both management and another Correctional Officer causing it to become quickly known to the complainant. [24] Since the incident giving rise to these grievances, Mr. Murray was discharged from his employment. He entered into a confidential settlement with the Employer. He is no longer working for the Ministry. In his cross-examination he denied that part of the agreement he reached with the Employer was his co-operation in these proceedings. He stated that his participation in this hearing was not discussed and resisted the inference that his evidence was contrived. [25] Not surprisingly, the complainant was deeply disturbed when she was told that the grievor still had her photograph and had shown it to another Correctional Officer. She filed a complaint and participated in the investigation when called upon. [26] The complainant testified that during the course of their relationship she and the grievor had exchanged a number of naked photographs. She said that she initially resisted the grievor’s request for naked images of herself but finally relented. One picture that she sent was of her vagina. [27] According to the claimant, she asked the grievor to destroy the pictures on two separate occasions after their relationship was over and was told by him that it was done. After the first request she found the pictures still on the grievor’s computer. She testified that she asked again that he destroy all of the pictures. This contention was not denied by the grievor in his evidence. [28] When she learned that the grievor had shown her picture she became very upset and angry. She confronted Mr. Murray who admitted that the incident occurred and apologized for revealing it to others. An hour after this conversation the grievor called the complainant on her cell phone and she refused to answer. She later listened to the message Mr. Brown left for her. According to the complainant the grievor said that the picture was not of her – it was of “some other dirty skank.” [29] The complainant took contemporaneous notes during this time that were admitted into evidence and she wrote that Mr. Brown said the photograph was “of some other dirty skank.” She did not consider this message to be an apology. She next heard from the grievor about a week later when he left a message saying that things had gone too far and that he wanted to sit down and discuss things out with her. She refused to meet with him and has not spoken to him since. [30] The complainant testified that her life has been made miserable as the result of this incident. She said that she was surprised that the grievor was not fired because of the Ministry’s zero tolerance policy. She testified that his transfer was “the least that I asked for.” It was her evidence that as a result of this matter becoming known in the workplace - coupled with the fact that she filed a complaint against the grievor - she has been ridiculed, humiliated and ostracized. She has experienced high stress and extreme embarrassment. She testified that life is just beginning to return to some semblance of “normal” and she feared that the hearing and a decision in this matter would renew interest, open “old wounds” and cause her further embarrassment and co-worker repercussions. [31] In cross-examination the complainant conceded that she never gave the grievor an opportunity to explain himself. She said she had spoken to Mr. Murray and she believed him because he had no reason to lie. [32] The Superintendent testified that he considered the allegations extremely troublesome and ordered an external investigation after receiving the results from the internal investigation. After reviewing the results of the external investigation he decided that on a balance of probabilities the grievor had shown Mr. Murray a naked picture of the complainant. He discussed this with the discipline review committee made up of staff relations people and counsel, it was decided that a ten day suspension and WDHP training would be the appropriate level of discipline. He also determined that because of the emotional and “broken’ state of the complainant the grievor had to be transferred to another institution. [33] The Superintendent stated that he was concerned about the grievor’s lack of remorse. However, he conceded in cross-examination that he did not give the grievor an opportunity to show any remorse before deciding the level of discipline to be imposed. [34] The grievor testified on his own behalf. He said that he and the complainant were pretty “seriously involved” at one time to the point where they had discussed marriage. However, the complainant was very jealous of other women and that caused a lot of difficulties. Their relationship continued off again on again for approximately two years. [35] Mr. Brown stated that Mr. Murray had a very “big reputation” as a ladies man and turned most conversations into discussions about sex and his own “sexual conquests”. According to the grievor, one evening when sat at a computer in the A and D area Mr. Murray was checking his email and he showed him a number of pictures of a woman in “various states of undress.” The grievor was shocked at this because he knew that Mr. Murray had previously been disciplined for viewing such material in the workplace. He stated that he was shocked that “the girl emailed him the pictures and at the time I pulled out my phone and showed him two or three pictures of a female that I had on my phone.” The grievor said that he showed Mr. Murray two or three pictures of the other woman he had been dating – not the complainant. More details of these pictures were provided in evidence but it is not necessary to set it out in detail. It is sufficient to say that the grievor recalls making clear to Mr. Murray that they were images of a woman he was dating from another city. [36] The grievor categorically denied that he showed naked pictures of the claimant. He said that she was someone that he cared about deeply and he would not have done that to her. He said nothing that would lead Mr. Murray to believe that the woman in the photographs was the complainant. [37] The grievor testified that the Mr. Murray approached him months later and said that he did something stupid. He told him of the story of what he had said and then he said that he didn’t know why he said it. Mr. Murray told him that the complainant had heard and was very upset. The grievor immediately went to his phone and “still being very upset” he was “just trying to make her understand that it was not a picture of her.” He admitted that he used the word “skank” in this message and that it was “obviously very poor choice of wording” but he wanted her to know “that I just would not have done this to her – I had cared about her.” [38] Mr. Brown reviewed his experience with the internal and external investigations he felt that he was treated unfairly. He also said that, contrary to the Superintendent’s view, he thought that he had expressed remorse at every meeting held to discuss this matter and that he told people that he felt bad that the complainant actually felt he would do this to her. He is not angry with the complainant for what has occurred. [39] In his cross-examination the grievor said that Mr. Murray was lying when he said that the nude picture was of a small woman. According to the grievor Mr. Murray also lied when he said that he was told the picture was of the complainant. He thought that Mr. Murray made up the entire story because he had to protect himself after his initial mistake of telling a coworkers that he had seen a naked picture of the complainant. [40] The grievor admitted in cross-examination that he showed the naked pictures of the other woman to another Correctional Officer as well. He said that the woman knew he was showing her pictures to others and did not care. Although she did not say that she did not care, he told her that he was showing them at work and she did not object so he drew the inference that she would not care. [41] In cross-examination Mr. Brown denied calling the complainant a “skank”. He referred to the other woman as a skank and knew it was a poor choice of words. He was very upset at the time and is now sorry about how it all “came out”. [42] The grievor testified that he thought he should get less discipline than the five-day suspension that was imposed on Mr. Murray because “he is the one who made up the story that I showed a picture of (the complainant)”. He recognized that he should be disciplined for showing a naked picture in the workplace but he thought that even five days was excessive. [43] The grievor was asked in cross-examination why he asked for an apology as a necessary remedy in his grievance. He said that he was wronged by this situation and has been victimized. The investigation made him out to be guilty of something that he did not do and this will follow him throughout his career in corrections. [44] As mentioned earlier, a number of other witnesses were called. It is not necessary to set out their evidence. Indeed, to do so might be more revealing than is needed to understand this dispute. This Board has reviewed all of the evidence and it is sufficient to say that the direct evidence in this matter was the most helpful and indeed, determinative. EMPLOYER SUBMISSIONS [45] The Employer reviewed the evidence for this Board and focused on two areas. First, it was clear from the evidence of the complainant that the impact upon her was devastating and continues to the present day. She has been shamed and humiliated and the effects of this matter have extended into her home life. She stated that she would feel as if she had been re-victimized if the grievor was allowed back into the workplace. [46] It was the Employer’s view that if this Board allowed the grievor to return to the complainant’s institution it would send the wrong message to others who have been subject of sexual harassment. Standing against a fellow employee has been a most difficult experience for this complainant and if he were allowed back into her workplace other victims of sexual harassment would find no reason to go forward with complaints. [47] It was urged by the Employer that I accept the evidence of Mr. Murray over that of the grievor. He was consistent about the fact that he was told by the grievor that the picture was of the complainant. Moreover, he had no reason to lie to this Board. He had no self-interest because he is no longer an employee of the Ministry and so there would be no employment impact upon him if he confessed that he had initially lied and this entire situation was his fault. [48] The Employer asserted that there was no evidentiary support for the Union’s contention that Mr. Murray fabricated this entire story because he was a sexual braggart and wanted to impress his co-worker that he had seen a naked picture of the complainant. Several witnesses were cross-examined on Mr. Murray’s discussions of his sexual exploits. None expressed doubt regarding the veracity of those stories. Even the complainant stated in her evidence that she thought Mr. Murray had no reason to lie about seeing her picture. Mr. Murray admitted that what he did was “stupid” but that does not mean that he fabricated the story. [49] Mr. Murray has been forthright that there was no way to identify the complainant from the picture he saw, according to the Employer. However, he adamantly and consistently maintained that the grievor told him that it was and that was believable to him because the picture was of a small woman. [50] The Employer urged that the grievor’s story simply is not credible. In assessing the credibility of the grievor and Mr. Murray, assistance can be found from Re Ministry of Attorney General & OPSEU (Young) GSB#2001-0660 (Abramsky). In that decision Vice Chair Abramsky set out a test found in [Faryna v. Chorny, ](https://www.canlii.org/en/bc/bcca/doc/1951/1951canlii252/1951canlii252.html), [1952] 2 D.L.R. 354, pp. 356-8: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions….. [51] The Employer stated that the only version of the story that makes sense is that of Mr. Murray. It makes no sense that he would blurt out to a co-worker that he been shown a naked picture of the complainant by the grievor if it was not true. It should be recalled that Mr. Murray testified that he liked the grievor and the complainant and wished them no harm. [52] The Employer urged that Mr. Murray’s evidence should be preferred because it was against his own interest. As the result of his comment he incurred the wrath of both his coworkers and his employer. By way of contrast, the grievor had much reason to lie. He was unclassified at the time of this incident and he wanted to minimize his own fault because he knew that he was vulnerable. He has continued his fabrication in an effort to return to his preferred workplace. He has a significant vested interest in this case and it has caused him to be less than honest with this Board. [53] According to the Employer, it is helpful to look at the behavior of Mr. Murray and the grievor immediately following the incident. Mr. Murray apologized to a number of people he thought he offended including the complainant. He sought some of them out and tried to make amends. The grievor, on the other hand, called the complainant and said that the picture was not of her but of “some other dirty skank.” This comment was made in a voice mail message that the grievor referred to as an attempt to apologize. In fact, he was trying to minimize his responsibility and place the blame on others. [54] The Employer stated that there is no question that there was just cause for discipline and that a ten day suspension was appropriate. Mr. Murray – who was not the instigator of this entire incident - was suspended for five days and ultimately he did not challenge that discipline. Ten days is appropriate in the factual context particularly given that the grievor was unclassified with little seniority at the time. It is not up to this Board to fine-tune the level of discipline imposed. If the penalty was in the range of a reasonable response, then it should stand. In this regard the Employer relied upon Re Ministry of Correctional Services & OPSEU (Gillies) GSB#1977/0129 (Prichard). [55] Regarding the transfer of the grievor, the Employer asserted that it was obliged to move Mr. Brown for the sake of the complainant and to accord with its policies regarding sexual harassment and poisoned work environments. It was an appropriate management decision because of the severity and ongoing impact on the complainant. Additionally, to return him would send the wrong message. Finally, there is no compelling reason to move him back. The sole reason given by the grievor as to why he wishes to return is because his commute to work would be shorter. Balancing the needs of the complainant and the grievor must lead this Board to leave the transfer in place. [56] The Employer asked the Board to review Re Ministry of Transportation & OPSEU (Sidney) GSB#1990/1855 (McCamus); Re Ministry of Health & OPSEU GSB#1990/0014 (Springate); [Re Canada Safeway Ltd. And UFCW Local 1519 (2001), ](https://www.canlii.org/en/bc/bcla/doc/2001/2001canlii62003/2001canlii62003.html), 101 L.A.C. (4^th) 144 (Burke); [Re Insurance Corporation of British Columbia and Office and Technical Employees’ Union Local 378 (1981), ](https://www.canlii.org/en/bc/bcla/doc/1981/1981canlii4455/1981canlii4455.html), 3 L.A.C. (3d) 355 (Ladner); and [Re government of Alberta and Alberta Union of Provincial Employee (Michaels) (1990) ](https://www.canlii.org/en/ab/abgaa/doc/1990/1990canlii12693/1990canlii12693.html), 15 L.A.C. (4^th) 164 (Moreau). UNION SUBMISSIONS [57] The Union urged a much different result. It submitted that the grievor does deserve some level of discipline because it is undisputed that he showed a naked photograph of a woman in the workplace. However, this Board must look to the discipline imposed on Mr. Murray. He was suspended for five days and withdrew his grievance so that level of discipline becomes the benchmark in the event that the Board’s only finding is that the grievor showed a naked photograph of some woman – not the complainant – in the workplace. [58] As noted at the beginning of this decision, the Union began its closing argument by noting that its position had changed considerably from that stated in its opening statement. It was now of the view that if this Board finds on the evidence that the grievor did show a picture to Mr. Murray and said something to him to reasonably make him believe that it was a photograph of the complainant, the transfer and ten day suspension should stand. This concession and change in position is as a result of the Union’s recognition of its obligations when dealing with situations such as this. [59] The Union conceded that the evidence was clear that the grievor and the complainant did exchange naked photographs. As ill-conceived as that gesture was it was a mutual arrangement. [60] The Union also conceded that Mr. Murray presented well at the hearing. However, it was asserted, some of his evidence was most improbable. Given his history of bragging about his sexual conquests – a reputation that all agreed he had – it makes no sense that Mr. Murray denied that this entire incident began when he showed the grievor pornographic images from his personal email account on the Employer’s computer. It is to be recalled that the grievor did not have a reputation for sexual bragging and his evidence was clear that he would not have wanted to hurt the complainant because he cared about her. [61] The Union suggested that at most, the grievor might have made a joke to Mr. Murray regarding the identity of woman in the photograph. However, Mr. Murray clearly understood that it was a joke. He had no reason to believe based on anything that the grievor said that the woman in the photograph was the complainant. [62] It was noted by the Union that the statements made by Mr. Murray have varied from the outset. His comments to the internal investigator differ from the evidence before this Board and substantiate the grievor’s version of events. That is compelling, according to the Union. His story changed when interviewed by the external investigator and that is because he realized the enormity of the matter. [63] The Union spent some time in its submissions reviewing a number of shortcomings of both the internal investigation – or fact finding – and the external investigation. In particular it took issue with the person assigned to do the internal fact finding and her methods. Further, the Union contended that the external investigator had some predisposition to view the grievor in negative terms became she received and read the internal report prior to starting her own investigation. Her investigation methods were insufficient and at times unprofessional. Her findings that were relied upon by the Employer are faulty. [64] It was the Union’s view that the grievor never said anything that would lead Mr. Murray to believe that the image was that of the complainant. It was completely within the nature of Mr. Murray’s character that months later when he is working with another CO after seeing the complainant walk by he just blurted out that he had seen her naked. In the vernacular – the genie was out of the bottle and Mr. Murray could not put it back in. He tried to make amends quickly but this did not work and so he shifted blame to the grievor. [65] The Union asserted that the grievor was clear in his evidence that his use of the word “skank” was intended to assure the complainant that the picture was not of her. He testified that he wanted to say he cared about her and would not do such a thing. [66] The Union noted that during the months after the incident but prior to the investigation results the grievor and the complainant worked in the same institution. There was much evidence about this. It is clear from that evidence that if the grievor is sent back to his hiring institution a process can be established by the parties to reduce the likelihood that the grievor and the complainant will cross paths. [67] The Union relied upon Re Renfrew County Catholic District School Board and OECTA (2008), 173 L.A.C. (4^th) 326 (Swan); and [Re Toronto East General & Orthopedic Hospital and A.A.H.P.O. (1989), ](https://www.minicounsel.ca/olaa/1989/9391), 8 L.A.C. (4^th) 391 (Springate). DECISION [68] I agree with the assertion made by the Union in its closing submissions that this case boils down to a factual dispute between the evidence proffered by Mr. Murray and Mr. Brown. It is certainly this evidence – and that of the complainant - that has led to my determination. [69] Simply put, I accept the evidence of Mr. Murray and not that of the grievor and for many of the reasons suggested by the Employer. [70] At the point of giving evidence Mr. Murray was no longer an employee and so if he had been lying because of his fear of possible employment ramifications, there was no further cause for concern. He could have simply said that he lied at the time and that he was sorry. There would have been no consequence. He had no interest in continuing a false story. [71] Mr. Murray testified that he liked the grievor and wished him no harm. I believed that evidence. Again, there is nothing before me that would lead me to find that Mr. Murray wanted to make the grievor’s life miserable by lying about this incident either at the time or during the course of his testimony. He spoke with some affection of the time he worked with the grievor and made clear he never intended malice toward Mr. Brown or the complainant. If he had lied in the first instance he could have said so at the hearing without any negative result. [72] I am of the view that the evidence revealed that the grievor – irrespective of how the subject of nude photographs arose – showed Mr. Murray a naked picture of the complainant and made clear that it was she. He may well have attempted to retract the statement but I think it more likely that this was done after it became apparent that he was in some difficulty for doing so. The Union suggested in closing argument that Mr. Brown might have joked at the time that the picture was of the complainant and that is not sufficient for a finding against the grievor. A review of Mr. Brown’s evidence is clear that he denied ever saying anything – including in a joking fashion – about the complainant at the time he showed Mr. Murray the naked photographs. Accordingly, I reject this assertion. [73] The complainant was clear in her evidence that she and the grievor exchanged naked photographs. She said that she sent him ten photos from her cell phone of various sections of her naked body. I am left wondering how Mr. Murray could have known that the grievor had naked photos of the complainant if he had not seen them or at the very least been told of this fact. He obviously knew of the photographs and seemingly the only way this could have occurred was if the grievor showed them to him. [74] The grievor testified that he was very upset when he found out what Mr. Murray had disclosed and called to “apologize” to the complainant. He said that his choice of words was poor but he wanted to make sure that the complainant understood that he cared about her too much to reveal her naked photographs. I find this evidence difficult to believe. First, I accept that he said to the complainant that the photo was not of her but was of “some other dirty skank”. Even conceding that the grievor might have been upset himself at this point, this comment is about as far from an apology as one might want to hear. There is nothing in that conversation – according to the grievor or the complainant that would have made clear that he cared too much for her to show her naked picture to Mr. Murray. [75] The complainant testified that prior to the ultimate end of their relationship she asked the grievor to destroy the pictures she sent. She testified that he told her that he had deleted them but she later found them on his home computer during a period when they had reconciled for a time. She again made the request. It seems to me that if one cared deeply for another such a request would have been complied with immediately. It was not. It has caused doubt that Mr. Brown would have been as protective of the complainant’s reputation as contended in his evidence. [76] While I make no finding in this matter about the propriety of the internal and external investigations – because it is not necessary to do so except to the extent found at the beginning of this decision – I urge the Employer to ensure that all investigations regarding sexual harassment complaints are fair, unbiased and can withstand intense scrutiny. These situations are difficult not only for the complainant but also for those that have been accused and certainly for those who have been wrongfully accused or have had complaints that are not wholly accurate made against them. It is not unusual that the result of these investigations have far reaching and sometimes life altering results. For those reasons, every effort must be taken to ensure not only neutrality throughout but also the appearance of fairness. [77] Given the position taken by the Union in its closing submissions it is unnecessary for this Board to address the matter of non-disciplinary transfers in matters such as this. Indeed, I commend the position taken by the Union that it and the grievor would accept the suspension and transfer in the event that I found the grievor acted as alleged. It was said that it was taking that stance in recognition for the Union’s obligations in matters such as this. I appreciate this view and hope that the Employer does as well. [78] For all of those reasons, the grievance is denied. Dated at Toronto, Ontario this 9^th day of July 201431:["$","$L7b",null,{"caseData":{"id":199480,"body":"$7c","year":2014,"court":{"id":26,"name":"Grievance Settlement Board","slug":"ogsb","abbreviation":"OGSB"},"issues":[{"id":405849,"outcome":"resolved in the affirmative based on credibility findings","description":"Whether the grievor showed a naked photograph of a female co-worker to another employee.","issue_index":0},{"id":405850,"outcome":"upheld — grievance denied","description":"Whether the 10-day suspension and non-disciplinary transfer were justified.","issue_index":1}],"judges":[],"source":"https://www.canlii.org/en/on/ongsb/doc/2014/2014canlii48013/2014canlii48013.html","lawyers":[],"parties":[{"id":25973,"name":"Ontario Public Service Employees Union","role":"applicant"},{"id":77271,"name":"The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)","role":"respondent"}],"summary":"The grievor, a correctional officer, grieved a 10-day suspension and a non-disciplinary transfer imposed after he allegedly showed a naked photograph of a female co-worker to another employee. The union argued the grievor showed a picture of a different woman and that the co-worker fabricated the story. The arbitrator resolved the factual dispute in favour of the employer, finding the co-worker's evidence more credible and that the grievor did show the complainant's picture. The grievance was denied, upholding the suspension and transfer.","citation":"Ontario Public Service Employees Union v Ontario (Community Safety and Correctional Services), 2014 OGSB minicounsel 96","court_id":26,"keywords":["credibility","discipline","intimate images","poisoned work environment","sexual harassment","suspension","transfer"],"province":{"id":1,"name":"Ontario","abbreviation":"ON"},"one_liner":"Grievance denied; 10-day suspension and transfer upheld for showing a co-worker's naked photograph.","case_types":["trial"],"date_heard":"2011-11-18","cited_cases":[{"id":889758,"url":"","title":"Re Ministry of Attorney General & OPSEU (Young) GSB#2001-0660 (Abramsky)","polarity":"neutral","treatment":"cited","relationship_kind":"treatment"},{"id":889759,"url":"https://www.canlii.org/en/bc/bcca/doc/1951/1951canlii252/1951canlii252.html","title":"Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354","polarity":"positive","treatment":"applied","relationship_kind":"treatment"},{"id":889760,"url":"","title":"Re Ministry of Correctional Services & OPSEU (Gillies) GSB#1977/0129 (Prichard)","polarity":"neutral","treatment":"cited","relationship_kind":"treatment"},{"id":889761,"url":"","title":"Re Ministry of Transportation & OPSEU (Sidney) GSB#1990/1855 (McCamus)","polarity":"neutral","treatment":"cited","relationship_kind":"treatment"},{"id":889762,"url":"","title":"Re Ministry of Health & OPSEU GSB#1990/0014 (Springate)","polarity":"neutral","treatment":"cited","relationship_kind":"treatment"},{"id":889763,"url":"https://www.canlii.org/en/bc/bcla/doc/2001/2001canlii62003/2001canlii62003.html","title":"Re Canada Safeway Ltd. And UFCW Local 1519 (2001), 2001 CanLII 62003 (BC LA), 101 L.A.C. (4th) 144","polarity":"neutral","treatment":"cited","relationship_kind":"treatment"},{"id":889764,"url":"https://www.canlii.org/en/bc/bcla/doc/1981/1981canlii4455/1981canlii4455.html","title":"Re Insurance Corporation of British Columbia and Office and Technical Employees’ Union Local 378 (1981), 1981 CanLII 4455 (BC LA), 3 L.A.C. (3d) 355","polarity":"neutral","treatment":"cited","relationship_kind":"treatment"},{"id":889765,"url":"https://www.canlii.org/en/ab/abgaa/doc/1990/1990canlii12693/1990canlii12693.html","title":"Re government of Alberta and Alberta Union of Provincial Employee (Michaels) (1990) 1990 CanLII 12693 (AB GAA), 15 L.A.C. (4th) 164","polarity":"neutral","treatment":"cited","relationship_kind":"treatment"},{"id":889766,"url":"","title":"Re Renfrew County Catholic District School Board and OECTA (2008), 173 L.A.C. (4th) 326 (Swan)","polarity":"neutral","treatment":"cited","relationship_kind":"treatment"},{"id":889767,"url":"https://www.minicounsel.ca/olaa/1989/9391","title":"Re Toronto East General & Orthopedic Hospital and A.A.H.P.O. (1989), 1989 CanLII 9391 (ON LA), 8 L.A.C. (4th) 391","polarity":"neutral","treatment":"cited","relationship_kind":"treatment"}],"disposition":"dismissed","has_dissent":false,"legal_tests":[{"name":"Faryna v. Chorny credibility test","slug":"faryna-v-chorny-credibility-test","context":"Applied to assess the credibility of the grievor and the employer's key witness in a factual dispute.","source_citation":"Faryna v. Chorny (1951), 1951 CanLII 252 (BCCA)"}],"panel_split":false,"source_slug":"/en/on/ongsb/doc/2014/2014canlii48013/2014canlii48013.html","times_cited":1,"areas_of_law":[{"id":10010,"name":"Employment and Labour Law","slug":"employment-and-labour-law"}],"file_numbers":[{"id":199603,"file_number":"GSB#2009-2078"},{"id":199604,"file_number":"UNION#2009-0517-0102"}],"party_string":"Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)","tax_metadata":null,"document_kind":"decision","fact_patterns":[{"id":186984,"name":"correctional officer discipline","slug":"correctionalofficerdiscipline"},{"id":167349,"name":"non-disciplinary transfer","slug":"nondisciplinarytransfer"},{"id":8580,"name":"poisoned work environment","slug":"poisoned-work-environment"},{"id":142418,"name":"sharing intimate images","slug":"sharing-intimate-images"},{"id":5881,"name":"workplace sexual harassment","slug":"workplace-sexual-harassment"}],"hearing_dates":["2011-11-18","2012-01-31","2012-03-20","2012-11-22","2013-01-14","2013-04-05","2013-05-16","2013-11-12","2013-11-18","2013-12-09","2013-12-10"],"canonical_year":2014,"date_judgement":"2014-07-09","decisionMakers":[{"id":6911,"name":"Felicity D. Briggs","role":"sole","slug":"felicitydbriggs","title":"Vice-Chair"}],"external_links":[{"id":218087,"url":"https://www.canlii.org/en/on/ongsb/doc/2014/2014canlii48013/2014canlii48013.html","label":"Source","domain":"www.canlii.org","url_path":"/en/on/ongsb/doc/2014/2014canlii48013/2014canlii48013.html"}],"noindex_reason":null,"citation_scheme":"minicounsel","decision_number":48013,"final_judgement":"For all of those reasons, the grievance is denied.","representatives":[{"kind":"lawyer","name":"Eric del Junco","role":"for the Union","lawyerId":155514,"lawyerSlug":"ericdeljunco"},{"kind":"lawyer","name":"Felix Lau","role":"for the Employer","lawyerId":119879,"lawyerSlug":"felix-lau","lawyerUsername":"felixlau"}],"source_language":"unknown","expert_witnesses":[],"canonical_path_id":"m96","financial_outcomes":null,"parties_anonymized":false,"statutory_provisions":[{"id":468740,"topic":"suspension without pay","section":"s. 34","statute":"Public Service of Ontario Act, 2006"},{"id":468741,"topic":"suspension without pay","section":"s. 35","statute":"Public Service of Ontario Act, 2006"}],"certification_outcome":"not_certification","legislation_citations":[]},"tocEntries":[{"id":"in-the-matter-of-an-arbitration","text":"IN THE MATTER OF AN ARBITRATION","level":2,"children":[]},{"id":"union","text":"Union","level":2,"children":[]}],"relationships":{"same_proceeding":[],"appeal":[]},"podcastInitial":{"kind":"none"},"citingTreatmentSummary":[{"treatment":"cited","polarity":"neutral","count":1}]}] 34:E{"digest":"NEXT_REDIRECT;replace;/ogsb/2014/m96;308;"}