Pauline Au v. Lyndhurst Hospital, 1997 CanLII 15598

[1997] OLRB REP. JULY/AUGUST 616

1517-94-OH Pauline Au, Applicant v. Lyndhurst Hospital, Responding Party

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members R. W Pirrie and Pauline R. Seville.

APPEARANCES: Harry Kopyto and Pauline Au for the applicant; Lorenzo Lisi for the responding party.

DECISION OF THE BOARD; August 15, 1997

1. In this application, Pauline Au claims that she was fired by Lyndhurst Hospital as a result of having raised a safety issue at work, namely sexual harassment by her supervisor. As well, she asserts she was subject to other reprisals prior to her termination. The hospital responds that the termination was entirely related to restructuring caused by provincial fiscal restraint, and was in no part motivated by "anti-safety" concerns or her complaints of sexual harassment. Further, they deny any pre-termination reprisals.

2. As a preliminary issue, the hospital argued that issues of sexual harassment should not be considered within the ambit of the Occupational Health and Safety Act (referred to below as the OHSA), and that the Board should find that it had no jurisdiction to hear this complaint. In an interim decision dated November 10, 1995, reasons reported at [1996] OLRB Rep. May/June 456 the Board found that the applicant had a sufficiently arguable case that the matter should be put on for hearing. An application for judicial review of that decision was dismissed on September 14, 1996.

3. At the outset of the hearing on the merits, we entertained argument on the hospital's application for reconsideration based on a decision of the Board, differently constituted, dealing with similar issues, which had been made since the interim decision in this matter. See Musty v. Meridian Magnesium Products Limited, [1996] OLRB Rep. November/December, 964. The hospital argued that that decision decided the policy issues involved in whether or not the Board should be hearing cases involving sexual harassment under the OHSA. The applicant's position was that there was no appro­priate ground for reconsideration as there was no obvious error or any policy ground which had not been adequately considered in the first decision. Further, it was argued that Meridian, cited above, was distinguishable on the basis that it involved outstanding complaints in two different fora, which is not the case here as Ms. Au withdrew her earlier complaint at the Human Rights Commission. A majority of the panel, Mr. Pirrie dissenting, denied the application for reconsideration. It was the majority's view that an intervening decision on similar issues, but on different arguments and facts, is not an appropriate ground to reconsider. In particular, we note that we were not asked to defer to the Human Rights Commission, as was the panel in Meridian, despite our request for submissions on that point prior to issuing the preliminary decision. Rather, we were asked to conclude we had no jurisdiction over the matter, in light of the jurisdiction of the Human Rights Commission over sexual harassment under the Human Rights Code.

4. After the oral decision dismissing the application for reconsideration, the hospital requested an adjournment to judicially review it. We declined to do so, noting that it is not the practice of the Board to adjourn for applications for judicial review, in the absence of a decision from the Court staying a decision.

5. The hearing of this matter lasted 17 days, during which we heard the evidence of 8 witnesses. Much of the evidence was not in dispute in the end; we will deal with any necessary evidentiary issues below.

6. We have carefully considered all the evidence and arguments made. For the reasons that follow, the complaint is dismissed, as the evidence established that the termination was not motivated by Ms. Au's complaints of harassment. Further, we did not find the events complained of prior to termination to be reprisals for her complaints. As to the jurisdiction of the Board to consider matters of sexual harassment under the OHSA, we are of the view that the Board has jurisdiction over complaints asserting reprisals for behaviour protected by the OHSA, even if the factual basis asserted for them includes sexual harassment. However, in such cases the question may often arise as to whether the Board ought to exercise that jurisdiction in light of the explicit coverage of sexual harassment by the Human Rights Code.

An overview of the facts

7. Pauline Au is a social worker with a Masters degree (MSW) who worked for Lyndhurst Hospital from May 15, 1989 to November 19, 1993. Lyndhurst Hospital is a small, specialized hospital, treating victims of spinal cord injury. From all accounts in evidence, Ms. Au discharged her duties as a social worker in a consistently professional manner; there is no issue as to her work performance.

8. When Ms. Au had been at the hospital for about two years, her original supervisor left and was replaced by a male supervisor. Ms. Au testified that he touched her without her consent on four occasions, starting in November 1991, and behaved in other ways which made her fearful in his presence. Throughout the hearing, the hospital chose not to dispute these incidents, and the supervisor did not testify. Thus, we rely on Ms. Au's uncontradicted evidence of the incidents, to the extent relevant to the determination of this complaint.

9. The first incident of touching, as described by Ms. Au, was a November 1991 event in which her supervisor grabbed her by the shoulders to hold her close, while they were having a discussion about work, to which she responded by pulling away. The second was a January, 1992 touching of their thighs when they were looking at a file. The third, a few days later, was what she describes as an unexplained tapping on her shoulder. The first three incidents took place in the secretarial area of the social work department. The fourth incident complained of was some seven months later, when the supervisor squeezed Ms. Au's shoulder in the cafeteria. Besides the four incidents of touching, Ms. Au complained of other behaviour, including odd leering looks, suggestive sitting positions in supervision meetings, and that her office had been moved to be near the men's washroom so the supervisor would have more occasion to be near her office. Ms. Au had concerns that her supervisor would go further, and she would be forcibly confined, sexually assaulted, or poisoned. We are of the view that these concerns were genuinely held, but there is no evidence before us that the more serious things that Ms. Au feared ever took place or were likely to take place.

10. We have no evidence that is not hearsay about the supervisor's perspective or intentions, but the evidence is clear that once the hospital informed him that Ms. Au objected to the touching, he did not touch her again.

11. Ms. Au complained to hospital management, who investigated the incidents and counselled the supervisor, although they were of the view throughout that no human rights violations had occurred. They also sent him a letter directing him not to intentionally touch her again, together with other conditions, breach of which would result in discipline up to discharge. Although no repetition of the original behaviour complained of occurred, Ms. Au complained of reprisals from her supervisor after he was aware of the complaints of harassment.

12. When Ms. Au was terminated in November 1993, she was told that it was due to restructur­ing and fiscal restraint, but she believed that it was as a result of her complaints of harassment and reprisal.

13. After the termination, Ms. Au returned to the hospital and discussed with staff and patients her view that her complaints of sexual harassment had resulted in her dismissal. As well, she warned them to be on the lookout for sexual abuse of patients, in a context in which it was clear she was inferring that her supervisor, who was still on staff, was a potential abuser. She contacted the Chair of the Board of Directors of the hospital as well, and begged him to do something about abuse of patients, and referred to one in particular whom she described but did not name, citing reasons of professional confidentiality. Later, she would not participate in the investigation the hospital launched in response to her complaints about this patient. She also sent faxes to various organizations and the press accusing the hospital of being racist and sexist, and implying there was patient abuse. This post-termination conduct leads the hospital to maintain that even if the lay-off is found to have been a reprisal, reinstatement is out of the question as a remedy.

14. We will deal first with the legal basis for the complaint and then with the reasons for our conclusions about the lack of causality between the complaints of sexual harassment and the termina­tion, and the events alleged to be pre-termination reprisals.

The statutory context

15. The most pertinent statutory provisions are the following:

25(1) An employer shall ensure that,

(a) the equipment, materials and protective devices as prescribed are provided;

(b) the equipment, materials and protective devices provided by the employer are maintained in good condition;

(c) the measures and procedures prescribed are carried Out in the workplace;

(d) the equipment, materials and protective devices provided by the employer are used as prescribed; and

(e) a floor, roof, wall, pillar, support or other part of the workplace is capable of supporting all loads to which it may be subjected without causing the materials therein to be stressed beyond the allowable unit stresses established under the Building Code Act.

(2) Without limiting the strict duty imposed by subsection (I), an employer shall,

(a) provide information, instruction and supervision to a worker to protect the health or safety of the worker;

(d) acquaint a worker or a person in authority over a worker with any hazard in the work and in the handling, storage, use, disposal, and transport of any article, device, equipment or a biological, chemical or physical agent;

(h) take every precaution reasonable in the circumstances for the protection of a worker;

27(1) A supervisor shall ensure that a worker,

(a) works in the manner and with the protective devices, measures and procedures required by this Act and the regulations; and

(b) uses or wears the equipment, protective devices or clothing that the worker's employer requires to be used or worn.

(2) Without limiting the duty imposed by subsection (I), a supervisor shall,

(a) advise a worker of the existence of any potential or actual danger to the health or safety of the worker of which the supervisor is aware;

(b) where so prescribed, provide a worker with written instructions as to the measures and procedures to be taken for protection of the worker; and

(c) take every precaution reasonable in the circumstances for the protection of a worker.

28(1) A worker shall,

(a) work in compliance with the provisions of this Act and regulations;

(b) use or wear the equipment, protective devices or clothing that the worker's employer requires to be used or worn;

(c) report to his or her employer or supervisor the absence of or defect in any equipment or protective device of which the worker is aware and which may endanger himself, herself or another worker; and

(d) report to his or her employer or supervisor any contravention of this Act or the regulations or the existence of any hazard of which he or she knows.

(2) No worker shall,

(a) remove or make ineffective any protection device required by the regulations or by his or her employer, without providing an adequate temporary protective device and when the need for removing or making ineffective the protective device has ceased, the protective device shall be replaced immediately;

(b) use or operate any equipment, machine, device or thing or work in a manner that may endanger himself, herself or any other worker; or

(c) engage in any prank, contest, feat of strength, unnecessary running or rough and boisterous conduct.

50(1) No employer or person acting on behalf of an employer shall,

(a) dismiss or threaten to dismiss a worker;

(b) discipline or suspend or threaten to discipline or suspend a worker;

(c) impose any penalty upon a worker; or

(d) intimidate or coerce a worker,

because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.

(2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (I), the worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Ontario Labour Relations Board in which case any regulations governing the practice and procedure of the Board apply with all necessary modifications to the complaint.

(3) The Ontario Labour Relations Board may inquire into any complaint filed under subsection (2), and section 96 of the L.abour Relations Act, except subsection (5), applies with all necessary modifications as if such section, except subsection (5), is enacted in and forms part of this Act.

(4) On an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2), sections 104, 105, 108, 110 and 111 of the Labour Relations Act apply with all necessary modifications.

(5) On an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2). the burden of proof that an employer or person acting on behalf of an employer did not act contrary to subsection (I) lies upon the employer or the person acting on behalf of the employer.

(6) The Ontario Labour Relations Board shall exercise jurisdiction under this section on a complaint by a Crown employee that the Crown has contravened subsection (I).

(7) Where on an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2), the Board determines that a worker has been discharged or otherwise disciplined by an employer for cause and the contract of employment or the collective agreement, as the case may be. does not contain a specific penalty for the infraction, the Board may substitute such other penalty for the discharge or discipline as to the Board seems just and reasonable in all the circumstances.

The legal basis for the complaint

16. The applicant founds her case under the OHSA on the basis that sexual harassment is a hazard that presents a risk to the health and safety of employees, including the risk of injurious stress, which she reported to management. In doing so, the applicant maintains she was acting in compliance with sections 28(1) (a) and (d) and seeking the enforcement of the OHSA, as the employer and its supervisors are obligated to take every precaution reasonable in the circumstances for the protection of workers, as set out in Section 25(2)(h) and 27(2)(c) of the OHSA.

17. The hospital maintains that sexual harassment is not a hazard covered by the OHSA, and that in reporting sexual harassment Ms. Au was not complying with the OHSA, or seeking its enforcement. Rather, the hospital maintains she was raising a human rights issue, which should have been dealt with under the Human Rights Code. The hospital argued that this aspect of the case is highlighted by the fact that she never reported the harassment as an unsafe working condition to management or to the health and safety committee. Ms. Woodward, the Human Resources Director, testified that had the matter ever been raised as such by Ms. Au, she would have referred her to the health nurse who chairs the active health and safety committee in the hospital.

18. Further, while not disputing the incidents which Ms. Au reported as sexual harassment, the hospital maintains that they were not objectively speaking sexual harassment, nor dangerous to her health. The hospital acknowledges that Ms. Au may have genuinely felt harassed and the victim of reprisals, but maintains that they should not be recognized legally in the manner she claims.

19. Dealing first with the hospital's original characterization of the matter as something outside the jurisdiction of the Board under OHSA, we are of the view that subsections 50(2) and (3) give the Board jurisdiction to consider any complaint by a worker of reprisal for behaviour protected by the OHSA, in the words, "Where a worker complains that an employer...has contravened subsection l...the worker may file a complaint with the Ontario Labour Relations Board..." and "The Ontario Labour Relations Board may inquire into any complaint filed under subsection 2...". Further, subsection 50(7) gives jurisdiction to the Board to modify a penalty even where the Board has found cause for the disputed discipline, which would very likely mean that no breach of the OHSA had been found in regards to the discipline. One of the reasons for that could be that the worker was not found to have been acting in compliance with the OHSA.

20. Whether or not the Board's jurisdiction under section 50 will be exercised is a matter for the Board's discretion under subsection 50(2), which is a discretion parallel to the Board's discretion to inquire into complaints of unfair labour practices set out in section 96 of the Labour Relations Act, 1995. The discretion in those two sections is exercised with regard to considerations which have been articulated in many different fact situations in the Board's jurisprudence. They include the existence of a prima facie case, concurrent or overlapping jurisdiction in other fora and the assessment of whether there is a labour relations rationale to inquire into the complaint. See Power Workers' Union - CUPE 1000, Re: Mirza Alam, [1994] OLRB Rep. June 627 and Meridian, cited above.

21. In this matter, for the reasons articulated in our interim decision, the majority was of the view that it was appropriate to inquire into this complaint. We found that there was a prima facie case, and that in the circumstances which included the lack of an outstanding complaint in another forum, and the unsettled nature of the law, we would inquire into the matter.

22. Since that decision, as mentioned above, the Board, differently constituted, decided in Meridian, cited above, not to inquire into a case which contained several similar issues, on the basis of the primary jurisdiction over sexual harassment being with the Human Rights Commission. In Meridian, the Board found the existence of an arguable case that sexual harassment was covered by the OHSA, but also considered the opposite conclusion arguable. In the result, the application was dismissed in deference to the jurisdiction of the Human Rights Commission, where the statute is explicit and provides a remedial scheme for the problem which is tailored to remedying the underlying problem of harassment. The Board's discretion has to be exercised in an unfettered manner in response to each fact situation that comes before it, but the considerations referred to in the Board's growing jurisprudence in this area will no doubt offer guidance.

23. We will deal in a moment with the responding party's argument that sexual harassment is not a hazard covered by the OHSA. But it is first appropriate to note that, in our view, a singular focus on whether sexual harassment is a hazard covered by the OHSA is not the appropriate basis for determining this complaint, given the nature of the Board's inquiry on an application under section 50, particularly in the absence of a work refusal. The OHSA has been interpreted, properly so, as a code which encourages the reporting of health and safety issues. This is because the statute is the Legislature's affirmation of the high value of safe workplaces as an important public policy matter. The terms of the OHSA, read as a whole, indicate that it is broadly drafted with that end in mind. The whole internal responsibility system which is at the core of the legislation is designed so that the people most directly concerned, the workers and their managers themselves, will raise and deal with the matters of concern to them at the work place. The external enforcement mechanisms, the inspectors and the Board, are there to reinforce that basic scheme. Section 50 is one of the statutory mechanism aimed at safeguarding the integrity of the process envisioned by the Legislature.

24. With this larger scheme in mind, it makes sense that the provisions of section 50 are drafted without strict definitions of what will be considered behaviour that falls within the words of subsection 50(1) "acted in compliance with.. .or sought the enforcement of this Act". And it is this larger framework which also gives the legal foundation for the fact that the Board has found on a number of occasions that the worker does not have to be objectively correct about whether something is a hazard at all, let alone a hazard covered by the OHSA, to be protected by the OHSA's prohibition of reprisals for having raised a health and safety concern. Where the concern is genuine, even if mistaken, the reprisal protection applies. See for example, Firestone Canada Inc., [1985] OLRB Rep. July 1044; and Imperial Oil, [19821 OLRB Rep. Apr. 580. Where the concern is dishonest or raised for an ulterior motive, the Board has dismissed the complaint, even where there can be a hazard in the situation complained of. See Continuous Colour Coat Ltd., [1989] OLRB Rep. Jan. 10.

25. What is objectively an actual hazard, and one explicitly covered by the OHSA, will have much more relevance to questions of whether there have been breaches of the substantive provisions of the OHSA and its regulations, and whether an order is to be issued by an inspector. Section 50 does not deal with whether there has been such a substantive breach of the OHSA, e.g. whether there has been a breach of the regulations on confined space or toxic substances, and hearings of applications under section 50 seldom deal with the question of whether there has been a substantive breach. For this reason, the question of whether the employer in this case took every precaution reasonable in the circumstances in compliance with their obligation under section 25 of the OHSA is not before us, although whether Ms. Au was seeking to enforce that section ts.

26. The argument about whether sexual harassment is a hazard covered by the OHSA arises in two contexts: as a matter of the appropriate forum in which to have the matter heard, and in determining whether Ms. Au was acting in compliance with the OHSA, or seeking its enforcement, when she complained of sexual harassment. We have dealt with the issue of forum above and in our interim decision.

27. Turning now to whether Ms. Au was acting in compliance with the OHSA, or seeking its enforcement. The applicant's position is that she was seeking the enforcement of sections 25 and 27 of the OHSA, and acting in compliance with section 28 (d) of the ORSA, reporting a hazard of which she was aware, in complaining of sexual harassment to the employer. The hospital's position is that Ms. Au never complied with her obligations under the OHSA, that she never sought compliance with the OHSA or refused work, never reported an unsafe working condition to management or the health and safety committee. Therefore, no remedy should flow. The evidence does not support a finding that Ms. Au was intentionally pursuing the matter under the OHSA, as the OHSA was not in her mind during the time of her employment. However, given the broad remedial thrust of the statute, the Board has not interpreted the wording "acting in compliance with" as requiring a conscious reliance on the statute as the framework within which an action is taken. It has been interpreted rather as covering the raising of hazards, whether or not either of the parties specifically invoked the OHSA in the process. See for instance Bill's Country Meats, [1984] OLRB Rep. Nov. 1549 and Trelford Automobile, [1990] OLRB Rep. Nov. 1155.

28. The hospital did not seek to disprove the underlying incidents which Ms. Au reported as sexual harassment, but they took the position that they were not objectively a danger to her health. The hospital had never and did not at the hearing, question the bonafides of the original complaint or the reprisal complaint. They were of the view that she may have felt sexually harassed and the subject of reprisals. It is the bonafides of complaining of this under the rubric of the OHSA which concerns the hospital. The fact that this complaint was an "after-the-fact" characterization is relevant, in the hospital's view, to whether there was a reprisal. As well, it was argued that the delay in complaining should be taken into account as to the bonafides of this complaint.

29. The evidence is clear that Ms. Au was of the view that her supervisor's behaviour towards her was hazardous to her health, and that she communicated this to management representatives on a number of occasions. Ms. Woodward testified that Ms. Au seemed genuinely concerned about her safety and that was one of the reasons they sent her supervisor the letter telling him, among other conditions, not to touch her and making it clear that any breach of the directions set out would lead to discipline up to termination. Management's response, understandably in the circumstances, was to do its best to eliminate the offensive behaviour, rather than questioning whether it was truly dangerous, or attempting to ascertain the extent to which Ms. Au's concerns were objectively warranted or not. Thus, the issue of whether or not the behaviour complained of was actually hazardous never crystallized between the parties.

30. Further, the hospital did not seek to challenge in evidence the genuineness of Ms. Au's perception that her supervisor's behaviour towards her was hazardous. Her evidence of physical symptoms of headaches, insomnia, anxiety as well as symptoms of disorientation and general malaise, which she attributed to her treatment by her supervisor, was not challenged. In the result, we find that Ms. Au honestly considered her supervisor's behaviour, which included on her account, grabbing and touching, a hazard, something dangerous to her health at work, and communicated that to the hospital.

31. The potential causes of workplace injury are the hazards to which, generally speaking, the OHSA is addressed. At the hearing of this matter, it was conceded by the hospital, and we find as a fact, that sexual harassment can be hazardous to both physical and mental health. If sexual harassment is recognized as a potential cause of injury, as something hazardous to health must be, it is difficult to resist the conclusion that it falls within the common meaning of the word "hazard" in the OHSA. Although Ms. Au never used words which placed the matter within the domain of the health and safety committee in management's mind, she did on a number of occasions indicate that she felt unsafe, was fearful for her safety, and that she needed a safe workplace. We note that the behaviour complained of included physical touching, potential assault and allegations of alterations in the physical condition of Ms. Au's workplace. It is important to recall here that whatever ambiguity there may be about whether stress-producing working conditions, or harassment producing injurious stress, are hazards covered by the OHSA, there is no doubt that working in a manner that may endanger another worker or engaging in rough conduct are activities specifically contemplated as hazardous by the OHSA in section 28(2)(b) and (c) set out above. In these circumstances, we find that Ms. Au was reporting a hazard of which she was aware, which we find to be acting in compliance with section 28(1) (d) of the OHSA.

32. The hospital argued that the fact that Ms. Au never raised her concerns as a matter under ONSA during Ms. Au's employment goes to the credibility of the section 50 complaint. It is our view that although the legal framework for the section 50 complaint is something that was not in Ms. Au's mind during her employment, the idea that she felt in danger is not something she thought up after the fact or is a pretext in order to justify this complaint. Thus, we are of the view that the fact that neither party treated the matter as falling under the OHSA during the employment relationship, is not fatal to the complaint. Having concluded that Ms. Au was acting in compliance with the OHSA in reporting what she considered a danger at work, we are of the view that if the employer had terminated Ms. Au for complaining that she considered sexual harassment hazardous to her health, it would be a reprisal under the OHSA.

33. Before leaving this issue, it is appropriate to acknowledge that both parties, in their separate ways, wished the Board to deal more broadly with the question of sexual harassment, but we do not find it appropriate to do so. The employer, as noted, wanted the Board to make a blanket finding that matters involving sexual harassment are not covered by the OHSA and should be dealt with only by the Human Rights Commission. The applicant, on the other hand, asked the Board to deal with the hospital's approach to the management of sexual harassment, and to criticize its confidential internal process and endorse an approach focussed on the prosecution of the alleged harasser.

34. The Board's response to these two requests underlines the nature of the Board's reprisal jurisdiction. We have indicated above and in our preliminary decision the basis for our interpretation of the reprisal jurisdiction to the effect that it is wide enough to include this complaint. But it is not wide enough to extend to an inquiry into what method of management best deals with eradicating sexual harassment. The reprisal jurisdiction is not aimed at solving the underlying problem. Rather, it is focussed on remedying the ill effect of any reprisal for complaining about a health and safety matter. While the latter is not insignificant, we note that both the underlying problem and any reprisal can be dealt with together under the Human Rights Code.

The termination decision

35. Randy Swan is the Chief Executive Officer of the Hospital. He made the decisions which resulted in the lay-off of two social workers, including Ms. Au. Mr. Swan faced a situation common to most Ontario hospital administrators in 1993 - a need to cut substantial amounts from the budget. He attempted to do so without affecting direct patient care, and so his cuts affected the non-clinical areas

harder than the clinical areas. These included social work, recreation, library and chaplaincy. There is no longer any chaplain or librarian, and the recreation staff was reduced from three to one.

36. It was Mr. Swan's evidence that the reason Ms. Au and the other social worker were laid off was that they were the least senior in their classification. This is the method the hospital uses for lay­offs whether the position is unionized or not. Ms. Au's position was not unionized, but the service and nursing staff are. Other management witnesses, the Vice-presidents of Human Resources and Rehabilitation Services, Ms. Shirley Woodward and Mr. Bill Sylvestre, corroborated this evidence.

37. Although Ms. Au's supervisor was more junior in the department, he was in a managerial classification, and was not considered in the same lay-off pool. As a result of the same series of decisions, he was effectively demoted. His position was no longer exclusively supervisory and he was given a regular patient caseload - a move to which he objected, as he had been hired as a manager.

38. Mr. Swan put the decision to lay-off two social workers by seniority in the classification in the context of an ongoing process that had affected all areas of the hospital, starting with management, moving to the non-clinical areas and which has continued to the point where clinical areas have now also been affected. Affecting the clinical areas has meant bed closures, so that the hospital reduced its capacity from 79 beds in 1990 to 70 in 1994-1995. A total of 11.7 full-time equivalent lay-offs were done in 1993, including cuts of ward aides in the nursing department, a clinical area.

39. The Ministry of Health provides 85% of the hospital's budget and must approve the hospital's budget. Deficit budgets are not permitted. If there is an actual deficit, costs must be cut somehow. In October 1993, the hospital received the announcement of the funding for the budget year 1994-1995. A projected operating deficit for the year 1993/94 (which ends on March 31, 1994) of almost $200,000, together with a projected deficit for 1994/95 of over $400,000 meant the hospital had to 'find" approximately $600,000 after the freezing of wages and unpaid days under the social contract legislation. The Social Contract Act was in force from June 14, 1993, and the hospital was operating under the "fail-safe" provisions. Unpaid leaves had been used to save five staff positions. The changes to the social work department yielded annual savings of about $l00,000.00.

40. Ms. Au was a member of the hospital's fiscal advisory committee and had received docu­mentation for an August meeting which gave no hint of the magnitude of the lay-off that occurred in November, nor a financial justification for it. As late as October 14, 1993 there was a fiscal advisory committee meeting, and there was no discussion of such a major cut to the social work department. In an August 5, 1993 memo, Mr. Swan had indicated the current deficit at $58,685 and the projected (annual) deficit to be $230,000. Ms. Au found the different figures at different times, both monetary figures and numbers of staff reductions planned, somewhat misleading and this contributed to her suspicion that the stated reason for the lay-offs was not the true one. The earlier figures were not put to any of the hospital witnesses in cross-examination, so we do not have their comments on the extent of the differences, but it is clear that the figures were changing over time, and the earlier figures did not cover the period about which Mr. Swan testified, which included the October announcement of the hospital's funding for the next year. His evidence that the numbers changed for external reasons is uncontradicted.

41. The existence of surpluses in the budgets also contributed to Ms. Au's belief that the lay­offs were not justified. Mr. Swan testified that the figure referred to as surplus in the budget is an amount to fund capital purchases; there is a requirement of 2 to 3% surplus, ($200,000 to $300,000 out of the hospital's budget of approximately $10 million) which he noted most hospitals are not doing well at maintaining. In 1993/94 there was in the end a $58,000 deficit, and part of the surplus of $223,558 from 1992/93 was used to offset it. There was a small surplus of $4000 in 1994/95. Mr. Swan testified that surpluses of this kind are not intended for operating deficits and would soon be completely eliminated.

42. Mr. Swan consulted with senior management in October and November 1993, before deciding on what lay-offs would take place. This included Bill Sylvestre, Vice President for rehabilita­tion services, who was in charge of the social work department. Mr. Swan did not consult below the level of Vice President and said it would have been inappropriate. He did not speak to Ms. Au's supervisor before making the decision. However, the supervisor knew of, and did not support, Mr. Swan's long-standing view that the department could be restructured to run with only one MSW, with a number of clerical assistants. Mr. Swan had worked in the hospital at a time when there was only I MSW and 3 assistants, and he felt that this was a model that had worked well, and would represent significant savings. He felt there were too many professional staff and not enough clerical staff, and had been raising this with vice-presidents for three years prior to the change.

43. Ms. Woodward, Vice-President of Human Resources, spoke to Ms. Au's supervisor about the lay-offs in the social work department in October and said Ms. Au's and Ms. Audain's names came up as the two who were being laid off, but there was nothing specific about Ms. Au in the conversation. Mr. Sylvestre testified that, as far as he was aware, Ms. Au's supervisor neither recommended Ms. Au's lay-off or termination, nor had any input into how the restructuring would be done or who would be laid-off. The evidence warrants the conclusion that Ms. Au's supervisor did not influence the decision to lay her off.

44. Ms. Au found it odd that the social work department had been discussing reorganizing their work teams with existing staff in meetings up to the end of October. Given the fact that the restructuring decision was made well above the departmental level, and over a short time frame, the fact that the department was discussing things on the existing basis is not surprising nor indicative of a reprisal in our view.

45. The structure of the social work department was changed at the time of the 1993 lay-offs. Two MSW positions were deleted, leading to the lay-off of Ms. Au and Ms. Audain. An additional social work assistant position was created, which was filled by the former secretary of social work. The social work assistant and secretarial positions were not offered to Ms. Au and Audain because displaced clerical workers had a call on them and the hospital operates within classification for such transfers. Ms. Au's supervisor resigned in 1994, and he was not replaced, leaving the social work department with one MSW, which Mr. Swan felt was adequate.

46. Ms. Au thought there would be a decline in service and quality under the new structure -that a social worker's services would not easily be standardized so clerical workers could do it properly. She felt each case was different, and although standard letters for some things were being developed by the department itself prior to the lay-off, a lot of correspondence had to be drafted to suit the situation. She testified all the social workers had been very busy prior to the lay-offs. Mr. Swan acknowledged a reduction in social work counselling as a result of the restructuring, but said psychologists and nurses would still do counselling. He was of the view that there had been no reduction in the quality of the care.

47. Mr. Swan's testimony was that the reason the restructuring and lay-offs were done was to save money and have the right people doing the right jobs. He said there was no targeting of Ms. Au, and denied outright that Ms. Au's complaints had anything to do with her termination. At the time of the lay-off, he thought the matter of her complaints had been finalized in the spring of 1993, since he had heard nothing to indicate otherwise.

48. Mr. Swan had been involved with Ms. Au's complaints because she had complained directly to him in August, 1992 of four incidents of touching, inappropriate sitting posture and behaviour in supervision meetings. He considered them human rights rather than health and safety matters.

49. The applicant's representative referred to certain facts as clear indications that the hospital was retaliating against Ms. Au. For example, he argued that the fact that Mr. Sylvestre signed Ms. Au's termination letter, while Ms. Audain's (the other social worker who was laid off) was signed by the departmental supervisor, and the alleged harasser, is a clear indication that there was something suspicious about Ms. Au's termination - that the hospital was likely concerned that having her supervisor sign her letter would reveal the nexus of motivation. This was not pleaded nor raised in Mr. Swan's cross-examination. In this regard, Mr. Swan was only asked why he did not sign the letter if he made the decision, and he answered that Mr. Sylvestre was the Vice-President responsible for the service and was administratively implementing his decision. But he was never asked why the supervisor did not sign the letter. Given this, we are not of the view that it is appropriate to give much weight to this detail. In any event, we note that we have evidence that Ms. Au's letter was changed at her request, to show a different effective date of the termination, because of some vacation time she had planned. We have no evidence of whether the supervisor had signed the original letter that had been prepared in advance of the termination meeting. Further, it would appear that the supervisor was at the termination meeting with Ms. Audain, and Mr. Sylvestre was not. In the result, the difference in the signatures could be explained as easily by which manager did the exit interview. It was not suggested that Ms. Au's exit interview should have been done by her supervisor.

50. The applicant's representative also queried the fact that the release offered to Ms. Audain referred to human rights when the facts relating to human rights were peculiar to Ms. Au, and suggested this was one of the facts that showed an attempt to mask the real motivation. There are a number of reasons not to make the requested inference from this fact. Firstly, this was never put to the hospital administrators in cross examination. Further, Ms. Audain is a member of a racial minority; both in Ms. Au's withdrawn human rights complaint and in this application, the allegation was made that there was an aspect of discrimination on the basis of race or ethnicity to both their terminations. Although this aspect was not pursued before us, it may have been that the release was drafted by counsel to "cover all the bases". The applicant's representative also suggested that Ms. Audain was laid-off to provide a pretext for getting rid of Ms. Au. But there is no evidence for this, and thus no reason to find that to be the case.

51. The applicant's representative argued that the third most obvious fact which proves that the lay-off decision was tainted is what was referred to as the constant intervention of Mr. Swan in the process surrounding Ms. Au's complaints. It was suggested it was "not a far jump" to accept the idea that he was annoyed at both her persistence in complaining and the disruption caused by it and concluded this did not serve the best interests of the hospital, so she should go. And that the supervisor must be affected too to appear fair. The applicant's representative submitted that Mr. Swan took charge of "eliminating the problem." The solution was referred to as a flood of restructuring, sweeping away all the potential embarrassment of Ms. Au's allegations.

52. It was argued that the fact that Mr. Swan did not believe there had been sexual harassment in the first place, but dealt with the matter by giving a strongly worded letter to Ms. Au's supervisor anyway, that he cut the budget when there was a surplus and investigated the post-termination patient abuse allegation when he was convinced there had been no abuse, at great expense in the middle of a fiscal crisis, indicates his behaviour is peculiar and should be considered suspect. We will deal with some of this in more detail below, and have dealt with the budget portion above, but in general, we disagree, and find that the evidence does not warrant such a characterization at all.

53. Mr. Swan was a careful but straightforward witness, and most of his testimony went completely uncontradicted. In addition to the allegations about Mr. Swan's motivation set out above, Ms. Au's representative suggested that Mr. Swan was too sophisticated to be credible. We are not of the view that a certain level of sophistication in a senior hospital administrator is out of place or any reason to doubt his veracity. The evidence does not warrant the inference argued for - that Mr. Swan was using the lay-off as a pretext to eliminate the "problem" that Ms. Au presented. Mr. Swan testified credibly that he had not considered Ms. Au a problem until the post-termination launching of the fax campaign, the visits to the hospital and media campaign. We accept his evidence as truthful.

54. Further, we find nothing in the evidence on which to base a finding that the entire restructur­ing and lay-off was engineered just to get rid of Ms. Au. It is certainly not unknown in the annals of labour relations to use a reorganization as a cover for an illegal termination. That fact is part of the reason the pleadings disclose a prima facie case on the question of a causal nexus between the complaints and the termination. But now that the evidence is in, there is nothing about these facts which raises that spectre. In this respect, we note the budgetary circumstances set out above as well as the fact that the hospital had seen lay-offs since 1990, before Ms. Au's former supervisor was even hired, and continued to lay-off staff in the years after Ms. Au's lay-off.

55. Further, and specific to the administration's motives in dealing with Ms. Au, the evidence before us does not support a finding that they retaliated against her for complaining. The balance of the evidence indicates the opposite, that Ms. Au's complaints were treated seriously, and honestly, and that wherever the hospital administration had a doubt, they gave the benefit of it to Ms. Au, rather than her alleged harasser.

56. The applicant's representative argues that the hospital's handling of Ms. Au's complaints evidenced their bias towards her for complaining and should support an inference as to illegal motiva­tion in her termination. Since it is not in our view central to the determinative issues in this case, we have not set out that evidence in detail. However, we found nothing in the evidence to support the assertion made. To summarize that evidence briefly, we note the hospital encouraged Ms. Au to bring the complaint forward when she first approached them, eight months before she lodged a formal complaint against her supervisor. As a result of her complaint, an interview with the supervisor and advice from legal counsel, a letter was issued to the supervisor advising him not to intentionally touch Ms. Au again, that he should sit in a professional manner and not meet alone with Ms. Au. Further he was advised there were to be no reprisals against Ms. Au because of her complaints, and he was required to receive a human rights educational session. The hospital was of the view that the complaint did not make out any human rights violation because the supervisor did not know the touching was unwanted. Ms. Au is of the view that the supervisor ought to have known the touching was unwanted despite the fact she had not told him so directly. The letter was issued as an educational measure, so there could be no doubt as to the expectations of the hospital for the future. Ms. Au was informed of the letter in a meeting with senior management, during which she thanked them for their action. After this meeting, Mr. Swan delegated responsibility for the matter to the Vice-President of Human Re­sources, Ms. Shirley Woodward. Either Ms. Woodward or Ms. Sylvestre attended subsequent supervi­sion meetings as an observer. We find nothing warranting the suggested inference in this chain of events or the evidence of the handling of the later reprisal complaints, which are dealt with below.

57. It is appropriate to deal here with an additional evidentiary matter which was said to be relevant to the hospital's handling of the applicant's complaints. On the sixth day of hearing, the applicant's representative asked to call an expert witness on two issues:

a. Whether sexual harassment has a health and safety aspect - the expert was expected to identify that persons who experience sexual harassment have physical and psychological symptoms;

and

b. Whether sexual harassment is a social or interpersonal phenomenon.

58. The expert's testimony was said to be relevant to sections 25, 27, and 28 of the OHSA, and the hospital's alleged failure to take all reasonable precautions, and to the reprisal aspect of the complaint under section 50. In this respect it was argued that the hospital did not take adequate measures to prevent harassment: failure to have literature available, publish standards, or properly monitor the supervisor. We ruled that it was unnecessary to have the expert evidence, as there was no issue in dispute before us on which it could be helpful. The hospital had conceded that there could be physical and psychological symptoms from sexual harassment. Further, given the social policy expressed by the legislature in the Human Rights Code, we accept there is a social dimension to sexual harassment. We were of the view that the evidence offered could only be relevant to the assertion that the procedures taken were inadequate to meet the hospital's obligation to take every precaution reasonable in the circumstances, which is not part of our reprisal jurisdiction.

59. The evidence is persuasive that the hospital thought the matter of Ms. Au's complaints had been resolved internally by May, 1993, months before they had the budget announcement that generated the November lay-offs. That they did not specifically exempt her from the restructuring decision because of her complaints is not evidence of retaliation in our view. Nor is it evidence of retaliation that they laid off by seniority in the classification, rather than overall departmental or hospital seniority in effecting the layoffs, in the absence of any evidence that this was not the regular procedure. The fact that going by classification left her supervisor in a managerial position, rather than promoting Ms. Smith and retaining Ms. Au, both of whom were more senior in terms of departmental seniority, (an alternative suggested in evidence by Ms. Au) is similarly an insufficient ground to conclude these decisions were motivated by displeasure at Ms. Au's complaints in the face of all the evidence before us.

60. There is no doubt that the hospital could have downsized in some other manner, but they were under no obligation to do so, or to preserve the structure of the social work department. Further, we do not find anything about the fact that the hospital did not choose Ms. Au's preferred model as indicative of an intent to punish her for having complained of sexual harassment. Thus, the complaint is dismissed in regards to the termination.

Pre-Termination Reprisal complaints

61. The allegations of pre-termination reprisals related to twelve incidents between September 1992 and February 1993 which Ms. Au felt established differential treatment as a reprisal for her complaints. As we were invited to do, we have considered them as a whole, and not just as single incidents. Having done so, we are not of the view that the evidence supports a finding of reprisals before the termination.

62. We have considered the statutory reverse onus in this respect, and the fact that Ms. Au's supervisor did not testify. These factors do not create a presumption that any differential treatment is a reprisal, as the applicant's representative argued. However, in cases where the evidence establishes an employment penalty, the failure of a person centrally involved to testify may provide a basis for an inference as to the mental element of the causality required. That is to say, motive is sometimes inferred from the evidence, not presumed in advance. Given that Ms. Au was the only witness who was present for many of the incidents which make up the pre-termination reprisal allegations, we have based our findings largely on Ms. Au's own evidence. The onus of proof is largely relevant only when the evidence is evenly balanced. We are not of the view that that is the case here.

63. We have considered in regards to each incident and as a whole whether there was a negative employment consequence to Ms. Au which warrants an inference in the absence of testimony from her supervisor that a reprisal occurred. In a global sense, the incidents complained of do not demonstrate what section 50 requires for a finding of reprisal: the imposition of a penalty, including discipline, intimidation or coercion. We do not doubt that a course of subtle differential treatment could be a penalty. But that is not what these facts show. For most of the instances, the evidence does not establish that Ms. Au was treated differently than others in her department. The ones that do show she was treated differently are situations which do not indicate a penalty, intimidation or coercion. It is clear Ms. Au was never disciplined.

64. We accept that it must have been very difficult for Ms. Au to have continued working with her supervisor given her belief that he could unpredictably turn on her at any moment. However, it is worthwhile noting that Ms. Au's feelings about the situation, while important, cannot determine this matter, in the absence of evidence demonstrating that there was an identifiable penalty against her for complaining. That relations with her supervisor were strained is hardly surprising, and not in itself a reprisal. Further, we note that the reference in section 50 to the imposition of a penalty is not intended to capture all difficulties in a working relationship that occur after a complaint.

65. When Ms. Au raised the complaints of reprisal in March, 1993, the hospital gave the task of investigating them to Mr. Sylvestre, Vice-President of Rehabilitation Services in consultation with the Vice-President of Nursing who was soon to take over responsibility for the social work department. Mr. Sylvestre found no evidence of reprisal activity in the incidents complained of, but rather communi­cation difficulties and what he considered an inability on Ms. Au's part to accept her supervisor's role as such. There were suggestions by the applicant's representative that Mr. Sylvestre was not objective in these conclusions, and that his conclusions should be considered suspect because of that. The issue before us is not the quality of Mr. Sylvestre's investigation. We have considered the matters afresh on the evidence before us, as to whether a breach of section 50 has been made out, not as a review of Mr. Sylvestre's conclusions, which were made for the hospital's internal purposes.

66. Ms. Au was given a chance to respond to the results of Mr. Sylvestre's investigation in a meeting held on May 19, at which the hospital presented its conclusions. Ms. Au made some remarks about the twelve incidents at that meeting, suggesting they should be viewed collectively as a course of petty and vindictive conduct. She noted she was most concerned over two which had implications for patient care, and that she had not ruled out the possibility that she was being oversensitive. She did not respond to the hospital's conclusions either at the meeting or afterwards. She was concerned that she was not allowed a lawyer or other support person to be present at that meeting as the hospital viewed the matter as an internal one at that point. Both she and the hospital had consulted legal counsel by this time, and neither had lawyers at the meeting. We are not of the view that any negative conclusion ought to be drawn under section 50 from the hospital's desire to keep the matter internal at that stage of their investigation.

67. A June 14, 1993 memo confirmed that the hospital saw no human rights violation, and that was the last any of the management witnesses heard of the matter until after Ms. Au was terminated in November.

68. The applicant's representative submitted that Ms. Au continued to feel unsafe and apprehen­sive after the investigation was concluded, but put in no further complaint because she knew the hospital refused to find the supervisor's activities to be reprisals. By contrast, Ms. Au's evidence was that in the period after this investigation, she saw little of her supervisor over the summer. Her evidence did not leave the impression that there were incidents which occurred of which she did not complain. On the evidence before us, it would appear, that as with the allegations of sexual harassment themselves, once her supervisor was apprised of her concerns, the behaviour complained of ceased.

69. We turn now to a review of the incidents said to be pre-termination reprisals.

a) Float Day Coverage

70. The policy in the social work department was that the supervisor would cover for absences on vacation or float days when he was there. In the circumstance complained of, the supervisor was also going to be away on the day Ms. Au requested him to cover. He asked her to arrange coverage with others. She felt she should not have had to. Although she may have been the first person in the department to have been in the situation where she and the supervisor were going to be away on the same day, there is no evidence that would support a finding that her supervisor's response was a targeting of Ms. Au. Her own witness, Ms. Audain, indicated there were times when she had to speak to other social workers to arrange coverage. The evidence indicates that the policy was formalized after the incident complained of, but long before her supervisor knew Ms. Au was upset about this incident. Although the applicant's representative suggested there was something untoward in the fact that Ms. Au was the first one to be in this position, there is nothing in the evidence to support that view.

b) Educational seminar

71. A few weeks after her supervisor had been informed of Ms. Au's harassment complaints against him, Ms. Au reported on a seminar on sexual abuse of the physically disabled from a conference she had attended, and played tapes she had obtained there. Her supervisor did not attend, letting her know in advance that he would not be able to come and offering to listen to the tapes on his own time instead. She felt it was a withdrawal of support as a reprisal that he did not attend. Her supervisor attended a seminar report given by her colleague Ms. Audain a few months later and thus Ms. Au saw this as differential treatment.

72. The hospital argues that it would have been very difficult to have had Ms. Au and her supervisor discussing this topic so soon after her complaints were disclosed to him and that it was handled in a diplomatic way. Ms. Au saw it as an indication that the topic was not being taken seriously in reprisal for her complaint. Whether one agrees that it would have been better for her supervisor to attend or not, we are persuaded that his failure to attend was not the imposition of a penalty. The staff educationals were, on the evidence, routine, non-mandatory events. There is no evidence sufficient to support the inference that the supervisor's failure to attend would have so affected Ms. Au's reputation with her colleagues that this would amount to the imposition of a penalty.

c) Supervision of a social work student

73. Ms. Au objects to the fact that supervision of a social work student who was in the department for about four months in 1992 was assigned to another social worker without input from the rest of the department. Employer counsel argued that the reason neither Ms. Au nor Ms. Audain had been assigned the student was that the more senior worker, Ms. Smith, had voiced interest in the assignment. Ms. Au said that both she and Ms. Audain had verbally expressed interest, and she found the choice of Ms. Smith to be favoritism. Ms. Au agreed this problem applied to all the social workers in the department. The evidence indicates that Ms. Au had had a student on another occasion, and that as a result of her complaint about this incident, Ms. Au was put on a committee to plan student supervision for the future.

74. It was argued that it was differential treatment to not provide equal access to the supervision of students. We accept that the opportunity to supervise students may be seen as a leadership and teaching opportunity that expands the professional opportunities in the department, and that an exclu­sion from such an opportunity as a penalty for complaining could be a reprisal. But the evidence does not establish that. Ms. Au was not singled out in this incident; the effect was the same on Ms. Audain. Further, there is nothing inherently troubling or indicative of differential negative treatment towards Ms. Au in the assignment of a student to the most senior social worker in the absence of evidence that would make it so.

d) Evaluation of a social work student

75. In October 1992, the social workers had agreed at a staff meeting that evaluation of a social work student who was in the department for a mini-placement (18 hours at the rate of one-half day a week) was to be done jointly. This did not happen, as the departmental supervisor did the evaluation himself, and Ms. Au found this to be part of a pattern of reprisals. This incident affected all the social workers, including Ms. Smith, the social worker identified as the recipient of favoritism in others of the reprisal complaints. It did not single out Ms. Au, and we do not see it as a penalty to her.

e) Covering the department during colleagues' absence for lunch at a law firm

76. In December, 1992, a luncheon invitation was extended by a law firm to the social work department to discuss patient issues concerning no-fault accident benefits. Ms. Au did not wish to attend for a number of reasons, which included that she feared she would end up in a car driven by her supervisor. She identified in a memo to him that she was concerned about the cost of taking the whole department off site and the fact that the luncheon would conflict with her scheduled supervision. He responded by saying that the invitation was still open, and that the supervision would be rescheduled, but that if she was going to remain at the hospital, he would appreciate her covering for the other social workers. She agreed, but complained afterwards that he had failed to leave a phone number with her as promised, and had failed to alert her to the need to deal with the return of a piece of equipment to a patient.

77. We do not find that this incident establishes the imposition of a penalty. Ms. Au acknowl­edged that if she had accepted the invitation, which was extended twice, she would not have been asked to do this work at all. Further, although Ms. Au complained that the phone number where the others could be reached was not left with her personally as promised in a memo, we do not agree that the memo promised it be left with her personally; it simply said a number would be left. The number was called into the secretary, and Ms. Au knew where to find it when she needed it. As to the return of the equipment Ms. Au ended up dealing with, the secretary, who had to go to a meeting for an hour and a half, had left a note on her door directing the delivery person to the receptionist. It appears to have been unintended by anyone that Ms. Au deal with the equipment; the delivery person apparently simply found Ms. Au before he found the secretary's note, and she dealt with the delivery by calling her supervisor at the luncheon. This incident occurred shortly after a meeting where the sexual harassment allegations were discussed between Ms. Au and her supervisor in the presence of Ms. Woodward and Mr. Sylvestre, and it is clear that the relationship continued to be difficult, but that does not convert this incident into the imposition of a penalty.

O Discharge planning form

78. One of the important functions of social workers at Lyndhurst Hospital is discharge plan­ning. A new discharge form was introduced by the departmental supervisor in December, 1992. After Ms. Au had drafted her first new form, and given it to the secretary to type, she received a memo from her supervisor with directions on certain aspects of the draft. About a week later, Ms. Au heard the secretary being asked by him to ask another social worker "to have a second crack at the discharge form", because she had written more than could be fit into the computer field. Taking Ms. Au's evidence alone, there is nothing here that bespeaks a negative employment consequence. There is no suggestion in the memo that her supervisor is disciplining her, or doing anything other than clarifying expectations on a form that was new to everyone. In other evidence, Ms. Au indicated that she preferred to communicate with her supervisor by memo, since it avoided being in his physical presence. Given that Ms. Au made it clear that she wanted things kept formal with him, we are not of the view this is reprisal material at all. As well, the alleged differential treatment is about two substantively different things. The other social worker had simply written too much; Ms. Au had checked off categories in a different way than the supervisor had intended the form to be used. The fact that he gave different responses does not amount to the imposition of a penalty.

g) Office renovations

79. The seventh incident relates to the fact that Ms. Au and others in the social work department did not know until they heard through rumor that an office was being prepared for the social work student to use. Her supervisor apologized for this oversight. Ms. Au saw this as depriving all but the privileged staff of important information. This is another incident where Ms. Au was not singled out, and there is nothing in the incident itself which indicates that this was a penalty to her.

h) The missing phone

80. This relates to an occasion when Ms. Au was asked by her supervisor if she knew the whereabouts of a missing phone. Later she learned that another social worker had not been asked, and that the secretary had earlier told him where she thought the phone was, which was where it turned out to be - with another staff member. Ms. Au's objection to his behaviour was that he was raising the issue with only certain staff - not that she thought she was being accused. Ms. Au saw this in the context of a previous incident where her phone was missing; she felt her supervisor was trying to get under her skin by raising this with her and not the social worker Ms. Smith whom Ms. Au thought was the recipient of favoritism. Even if this was not raised with Ms. Smith, we are not of the view that this incident reaches the level of a penalty, intimidation or coercion.

i) Seating arrangements at supervision.

81. This complaint relates to the seating arrangements in the January and February 1993 supervision sessions that Mr. Sylvestre was monitoring. We had evidence from both Mr. Sylvestre and Ms. Au about these meetings. We have concluded that Ms. Au did not wish to sit close to her supervisor nor look at him directly when speaking to him. She was more comfortable on some occasions looking at Mr. Sylvestre. She sometimes asked her supervisor to move his seat, and on another occasion he changed his seat to be directly across from her. Ms. Au felt he was changing his seat to force her to look at him, to make her feel uncomfortable as a way of harassing her. Mr. Sylvestre said the requests to change seating were to assist in communication, as Ms. Au did not seem to acknowledge he was not the supervisor, but was just there to relieve her discomfort with being behind closed doors alone with her supervisor. Mr. Sylvestre testified that Ms. Au would list her case load concerns, but did not want to enter into any kind of conceptual dialogue with her supervisor. It was a one-way flow from her to him. Seating changes were made in the hope of getting her to communicate directly.

82. The applicant's representative characterized this as an invasion of Ms. Au's dignity, two male managers in a room with the woman who has complained forcing her to look her harasser in the eye. He asserted that where one looks should be a matter of choice and culture.

83. It is clear that it had become an issue that Ms. Au preferred not to look directly at her supervisor. Although the situation was no doubt awkward, we are not persuaded that Ms. Au was penalized, intimidated or coerced through directions as to seating. In each of the meetings in evidence, she ended up sitting where she suggested, across a large table from her supervisor and Mr. Sylvestre.

j) Directions to review the policy manual

84. This is a complaint that Ms. Au's supervisor asked her twice to sign a form saying she had reviewed a policy manual when the time for doing so had not yet expired. Ms. Au saw this as a way of making life difficult for her at work. She explained that the first time her supervisor asked her, he was standing in a position such that she had to pass by his body very closely to sign and so she did not want to do it right then. She told him she would do it when she had a chance to read it. The second time, he asked her at an inconvenient time. This is another incident where we do not find the imposition of penalty. There was no evidence that the treatment of Ms. Au was different from that of the other social workers, or that it negatively affected her other than being part of the ongoing tension of having to work with the same supervisor.

k) Complaint about Ms. Au

85. A consumer worker (patient advocate) had raised issues about Ms. Au's work on a particular case with her supervisor. She had received support for her activities from the doctor and treatment team involved, and did not feel her supervisor was equally supportive when he interviewed her about it. She felt he was not forthcoming when she asked him at what time of day the complaint had been made, and indicated she had to do a lot of explaining. She felt as if she were being reprimanded for work that was appropriate in the circumstances. When she asked if she was being reprimanded, he said no. She objected to the fact that her supervisor might be sending a letter to the consumer agency involved when the doctor involved was already planning to send a letter. She wrote in her summary of this incident that she felt he would confuse administrative issues with strictly clinical issues, and the threat of a possible reprimand was in fact a form of reprisal. Mr. Sylvestre witnessed this meeting and testified that she was not reprimanded or criticized.

86. We have considered this incident in light of the fact that it was one of the supervisor's duties to deal with such complaints, that the complaint originated independently of her supervisor, and the fact that it is clear that Ms. Au was not reprimanded. Lack of support when interviewing does not appear to be a penalty in these circumstances. It was necessary for the supervisor to find out what Ms. Au's side of the story was. He did that by questioning her, and made a decision not to reprimand her. This is not discipline or the imposition of a penalty. There is no evidence of even the threat of a reprimand, other than the fact that the supervisor had the authority to reprimand her - which, alone, is not a reprisal.

I) Student mini-placement

87. This relates to a mini-placement of a student in February 1993. Ms. Au's complaint is that her supervisor took the student as his own, rather than giving an opportunity to the staff to express their interest in supervising this student. She complains that he appointed himself to be co-ordinator between the social work staff and the outside educational institution. To her it is part and parcel of a decision making style that excludes staff participation. She further objected to his meeting with staff separately in supervision meetings because it was an opportunity for differential treatment without the rest of the staff being aware of it. There is nothing about this incident that is specific to Ms. Au, and it is not evidence of reprisal activity in our view.

88. In sum, reviewing the complaints of reprisal activity together and separately, we are of the view there was no reprisal against Ms. Au, and accordingly the complaint is dismissed in its entirety.

Post-Termination events

89. The applicant's representative objected to evidence of events which occurred after Ms. Au's termination. We allowed the hospital's evidence as it was in our view relevant to its theory of the case that the employment relationship had been irrevocably breached, even if there had been a breach of the OHSA. However, we ruled that we would not allow evidence of the content of settlement offers made. Given our conclusions above, it is not necessary to this decision that we deal with the post-termination events. However, those events are potentially relevant to our discretion under section 50(7), which can be briefly dealt with.

90. The complainant did not specifically ask the Board to exercise its discretion under section 50(7), but the hospital argued we ought not to, for reasons that included the post termination conduct which we have briefly summarized at paragraph 13 above. In addressing our discretion under section 50(7) we have considered the fact that the termination here was non-disciplinary - part of what we have found to be a bonafide "downsizing" for financial reasons. The applicant was not discharged for cause, or disciplined at all. In these circumstances we are of the view that there is no basis for the exercise of our discretion under section 50(7).

91. For the reasons set out above, the complaint is dismissed.

DECISION OF R. W. PIRRIE, BOARD MEMBER: August 15, 1997

1. In concur with the decision that Ms. Au's complaint is dismissed, both with regard to the termination and the alleged reprisal activity. I do however feel compelled to comment on two aspects of the decision.

2. First, I would like to elaborate on my reason for dissenting from the majority decision not to allow the hospital's application for reconsideration of this panel's November 10, 1995 decision, as outlined in paragraph 3 above. It was, and is my view that the intervening Meridian decision to defer that case, which also concerned sexual harassment under OHSA, properly set the Board's policy in dealing with such issues.

3. I believe it is highly relevant that Meridian was decided by the Chair of the Board sitting alone, and I would note that the Chair observed in his decision that the presence or absence of a companion application before the Human Rights Commission should not be determinative of a decision to defer a sexual harassment/OHSA cast to the HRC.

4. Further, it is my view that this request for reconsideration was significantly different from the normal reconsideration request which the Board deals with. Were we asked to overturn an earlier decision on the merits of a case after a full hearing simply because another panel of the Board arrived at a different decision on essentially the same facts, I would have sustained the Board's jurisprudence of not reconsidering, and I would not have dissented. That however was not the circumstance. We were dealing with a significant but quite new policy issue, and not a matter previously decided on its merits.

5. The second area on which I wish to comment is the post-termination events. We heard the evidence concerning these events over the objection of Ms. Au's representative. We did so on the basis that it was the hospital's view that the employment relationship had been irrevocable breached, even if there had been a violation of the OHSA. In light of the decision to dismiss Ms. Au's complaint in its entirety, it is not necessary to deal with the post-termination events. However, given their importance in the total context of this case, I find it appropriate to comment on the happenings.

6. The events are summarized at paragraph 13 of the decision. A good deal of the evidence surrounding those events was from Ms. Au herself, in what appeared to me to be an attempt to rationalize her actions. I will not recount here the detail of those events. I am compelled to say however, that whatever Ms. Au's feelings, experience and suspicions were at the time, her conduct on the ward with patients, their families and staff is not compatible with her continued employment as a social worker at the hospital. Discretion in handling highly sensitive matters such as sexual harassment and patient abuse ought to be the hallmark of any professional social workers' behaviour - whether inside or outside an employment relationship. Equally, her conduct in sending what I can only characterize as the scurrilous fax message was reprehensible. Perhaps Ms. Au felt she had nothing to lose, but throwing all caution to the wind has its consequences. Broadcasting her warnings, with no attempt to control the circumstances under which she did so, stands in stark contrast to what the hospital has a right to expect from any employee, and in particular a social worker.