P/0034/93

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

F. Hardy

Grievor

• and -

The Crown in Right of Ontario (Ministry of Health)

Employer

BEFORE

D.J.D. Leighton Panel Chairman K. Bernhardt Panel Member D. Halpert Panel Member

FOR THE GRIEVOR

L. Foreman L.D. Foreman & Associates Ltd. Personnel & Labour Relations Services

FOR THE EMPLOYER

D. Strang Counsel Legal Services Branch Management Board Secretariat

HEARING

March 21, 22, 1996 April 17, 18, 19, 1996 May 15, 16, 17, 1996 July 2, 3, 4, 1996

DECISION

On July 12, 1993, the Grievor, Mr. Frederick Hardy, was dismissed for cause from his employment as Regional Manager of an ambulance service within the Ministry of Health. The letter informing the Grievor stated that he was being discharged because of engaging in an ongoing course of inappropriate and offensive comments, gestures and suggestions of a sexual and racial nature, and the inappropriate touching of several female employees under his supervision. The Grievor contends that he was improperly dismissed by the Employer. The Grievor’s representative conceded that discipline was warranted, but not dismissal. So the issue for this Board is whether the Grievor’s termination was appropriate, given the evidence.

The evidence establishes that the Grievor was hired in 1971 as an ambulance attendant, and in 1975 he was promoted to Shift Supervisor. In 1984 he was promoted to Assistant Manager and, on occasion from time to time, after that date performed the duties of Acting Manager. From February 1992 until his termination he was Acting Manager of an ambulance service.

THE EVIDENCE

Mr. A

Mr. A, Mr. Hardy’s immediate supervisor, was the first to testify for the ministry. The Grievor began reporting directly to Mr. A sometime after 1988. His evidence was that there were a small number of women in the ambulance service in the 1970s, but that in the 1980s women began to enter the service in increasing numbers. New people enter the service on a part-time or go-temp basis with no guarantee of any work. If and when they receive a position they are on probation for one year.

Mr. A said that policies were issued from the Ministry of Health on sexual and racial harassment and employment equity during the 1980s. Assistant Managers were required to be familiar with such policies and were obligated to follow them. A policy directive regarding sexual harassment was issued by the Ontario Public Service on November 27, 1989. The Grievor was well aware of these policies as he was actually required to discipline one of his bargaining unit supervisors in 1992. As part of the disciplinary procedure, the Grievor was required to read the Workplace Discrimination and Harassment Policy (WDHP) to the shift supervisor.

Mr. A had no knowledge of any sexual harassment of employees by the Grievor until January 1993, when Ms. B approached him with concerns about complaints regarding the Grievor from numerous staff in the service. Ms. B was a manager in the service, and Mr. A advised her to tell any staff complaining about the Grievor to put their complaints in writing. On February 24, 1993 the written complaints of certain staff members were given to him. Because of the seriousness of the allegations, Mr. A immediately suspended the Grievor with pay.

On March 1 and 2, 1993 Mr. A met with all the Operations Managers and administrative staff in a preliminary investigation into the alleged conduct. Based on the information from the preliminary and from the W.D.H.P. office he decided to ask for a formal investigation to be done by that office. An investigator was appointed, duly investigated the complaints and issued a report. It was based on this report and after Mr. Hardy had an opportunity to state his version of events at a pre-disciplinary hearing before a delegate of the Deputy Minister on July 7, 1993, that he was dismissed.

On cross-examination, Mr. A stated that two of the Grievor’s operations managers were women, and there was evidence that the Grievor did encourage some women to advance within the service. Management was aware of his “rough edges” and Mr. A had, at times, told him to watch his language. But otherwise the witness was firm that senior management had no knowledge of Mr. Hardy’s sexual harassment of his subordinates. Mr. A was not surprised that there was “raunchy” talk or conduct between people in the peer group within the service. He also stated that people’s views were changing as more women entered the previously male dominated service: there was less tolerance of “sexual jokes and talk.” He was also adamant that it was never right.

Ms. B

Ms. B began work at the ambulance service in 1983 as a go-temp. After ten months, she went to a position on probation. She worked at the station where Mr. Hardy was based between 1984 and 1988. In 1988, Ms. B took a leave of absence to do volunteer work overseas. When she came back she became a shift supervisor and worked with the Grievor as his assistant for some time. In 1990 she began two secondments, and in 1992 when she returned to her home position she was made Shift Manager. Since May 1995, and at the time of the hearing, she was Acting Manager of another service.

When Ms. B first joined the service in 1983 there were very few women. Now women account for 35% of the service. In 1993, when she began work at this station, three vehicles operated out of it with two attendants per car and six attendants in total. There was also administrative office staff, a secretary, and the Assistant Manager.

In testifying about the sexual harassment, Ms. B stated that the Grievor was aggressive with her ‑ brushing close to her and resting his groin close to her. He made sexual remarks to her on a fairly constant basis. She felt as a probationary employee that she could not complain. She said she also realized she was working in a male environment and that she dealt with it in her own way. No other male staff treated her the same way as the Grievor.

In 1984, when she was in a T-shirt dress, the Grievor grabbed her breast. When she expressed her shock, he said to her “I just wanted to check to see if it was as hard as it looked.”

Ms. B wanted to make it clear in her evidence that the Grievor was not all bad. She stated that at times he was her friend and that she learned a lot from him as a manager. She thought he was capable of being an excellent manager. But the sexually degrading remarks that he made to people lead her to seek the secondments in the early 1990s to get out of the office. When she returned in 1992 she realized that it was also very difficult for others in the service and that, if anything, it was getting worse. She talked to the Grievor as a friend sometime after returning, and recommended that he control his behaviour and his treatment of female subordinates. Sometime after that, people within the station came to her and said that they were afraid of coming forward and making complaints because of what the Grievor might do to them or their families. Ms. B and other witnesses said that the Grievor had a harsh way of dealing with employees and made threatening remarks at times. For example, he would say “Do it or I will rip your headoff.” He would also remind people that he had ridden with a biker gang and that he “knew people who broke legs for a living.’’

Further details of the sort of verbal remarks that were made to Ms. B over the time that she worked as a subordinate for the Grievor were statements like she should experience an older man. He would also relate his sexual experiences without naming names and brag about women that he had been with. Physical gestures included sticking his tongue out and wiggling it. She testified that women were careful not to bend over in of him because he was known to lift a woman’s tunic and make groin thrusts behind her, in front of others, even though he might not touch the individual. She stated further that it was not a “convent” and that others made off-colour jokes, but she testified the Grievor’s behaviour went too far.

In 1989, when she was in a difficult relationship, the Grievor struck up a friendship with the man she was dating and tried to find out this man what sex was like with her. He also questioned her about her private affairs. She discovered when she walked into his office one day that he had taped a personal call of hers. As she walked in she heard him playing it back to himself in his office. This was very upsetting to Ms. B.

Sometime when she returned from her secondment in 1992, Ms. B scheduled a training date for the W.D.H.P. policy. She was the only management person in attendance and twenty other people from the service attended. The trainer at this meeting stated that a manager had a duty to report known allegations of sexual harassment. She believes this was the first time that the staff recognized that there was a way to deal with the problems of harassment by the Grievor. The staff came to her with written documents sometime after this training session, and after she got the advice from Mr. A to have them make their complaints in writing. By February 22, 1993 she had received approximately fifteen letters of complaint. On cross-examination, when asked why she and others did not grieve this sexual harassment when they grieved many other things she said that complaining about sexual harassment was much more serious than complaining about a breach of the collective agreement and that many didn’t want to be dragged through a “messy” situation. She stated that people were also afraid of the Grievor.

Ms. C

Ms. C began-work as a go-temp with the service in May of 1984. She was hired in November of 1984 and was on probation for a year. She doesn’t remember when she was promoted to a supervisors position, but she was a supervisor when the Grievor was suspended. She worked out of the same ambulance station where the Grievor’s office was based.

Ms. C gave evidence of an incident which occurred during a shift change at the station at approximately 8:00am. Ms. C was getting ready for her shift and leaning over tieing her shoes. The Grievor grabbed her head and pulled it towards his groin saying “While you are down there…” (hereinafter referred to the groin incident) Ms. C testified that she was both angry and embarrassed and told the Grievor never to do it again. This incident occurred in front of numerous people and two witnesses corroborated the essentials of Ms. C’s recollection of the events. Ms. C said that a similar kind of incident was attempted by the Grievor, again when there were no witnesses, but that she realized what was happening in time to stop it.

A third incident occurred when Ms. C was alone with the Grievor in the supervisor’s office. The Grievor grabbed her by the waist several times and she pushed him away saying “You’re bad.” She mostly laughed it off. On one occasion he sat on her when she was sitting down, and she told him to “Knock it off.” At the time of the sitting incident she was engaged and stated that her fiance would “Kill you if he knew.” Ms. C testified that what she termed horseplay was common, and in one incident she started a water fight with the Grievor outside the station. The Grievor grabbed the hose and put it down her top and pants and she couldn’t stop him. She was completely soaked by the end of this incident. It was common to get sprayed with water when people were washing the ambulances, but not to have a hose put down your shirt and pants as Mr. Hardy did that day.

Mr. Hardy never propositioned her explicitly, but in passing he would grab her and say “I want you. I don’t kiss and tell.” She testified that no other male in the service ever treated her this way while she was an ambulance officer, or as a supervisor. She did not complain about the groin incident or other harassment. She considered herself as having a good working relationship with the Grievor and that she had dealt with the harassment. She thought that the Grievor knew that she was angry at the groin incident and that he had crossed the line. She eventually complained to Ms. B in 1993, after the W.D.H.P. training. At the training session she became aware of her responsibility as a supervisor to report sexual harassment and so she followed the chain of command by reporting it to Ms. B who then reported it to Mr. A.

One of the things that finally convinced her to complain about Mr. Hardy was when she discovered that personal telephone calls were being taped by the Grievor. She, like Ms. B, overheard the Grievor playing a tape of one of her personal conversations when she entered his office. She testified that at the time the manager’s position had just been posted, and she knew that the Grievor would seek the position. Thus, she felt she had to make her concerns known to Ms. B. Ms. C was of the view that the Grievor was no longer capable of doing the job. She stated that he put in very long hours, which she considered too much for anyone. The Grievor was doing the job of what six people are doing now, in her view.

Ms. C also described an incident where an anonymous letter of complaint had been sent to the Grievor. The Grievor thought that Ms. C had written and sent it. He searched her handbag without her consent. She was very upset at the time and she denied that she had written the letter. She also said that it was his management style to use threats to get people to act. For example, he would say “Take your feet off the table or I will break them.” She did not originally want to complain or grieve about these incidents, and once she told the Grievor that her fiancé would kill him if he knew of his behaviour, Mr. Hardy stopped harassing her. At the time of the harassment, she wanted to deal with it without complaining.

On cross-examination, Ms. C stated, regarding the groin incident, that she found it degrading, particularly as she was a supervisor and it happened in front of subordinates. On cross-examination regarding staff members’ fear of Mr. Hardy, she stated that he had an aggressive style, although she didn’t think that the Grievor would ever hurt her. She thought that the threats were inappropriate, and particularly the remarks that staff told her had been made in the tv room regarding the Anita Hill hearings. Other witnesses gave direct evidence of this statement, but in this witness’ view it was well-known that the Grievor made a comment, which was something like the following: “If a woman ever did to me what Anita Hill did I would burn her house down” (hereinafter the Anita Hill statement). The implication was that the woman would be inside the house at the time of the burning.

Ms. C also agreed with Ms. B that Mr. Hardy was, despite the harassments, capable of being a caring person and an excellent trainer. He had high expectations of himself and his staff. The harder he worked the more aggressive and paranoid he got.

Ms. E

Ms. E began with the ambulance service as a dispatcher in 1986. When she became an acting shift manager she was directly reporting to the Grievor. The Grievor made sexual comments to her while other males in the service did not. She remembers him expressing views that women should not be in the service, and that these comments came up when there were problems with female staff members. She acknowledged that the Grievor was part of a panel that promoted her and one other woman to shift manager positions.

Ms. E gave evidence regarding the “N.H. case.’’ Ms. E was contacted by some individuals in the service who had made complaints about this man. Ms. E was responsible for interviewing the individuals and reporting to the Grievor. She discussed the situation with the Grievor and gave him a memo summarizing her investigation. The Grievor demoted and transferred N.H. after counselling him on the W.D.H.P. According to Ms. E, the Grievor admitted to her that N.H.’s comments were not as offensive as some of his own comments.

Ms. E also agreed with Ms. B and Ms. C that the Grievor was intimidating and had an aggressive style in dealing with people.

Ms. F

Ms. F has been in the ambulance service since 1985 and began as an ambulance attendant. She started as the others, as a go-temp, and became a full-time employee in September of 1987. Ms. F was at the station where Mr. Hardy had his office from 1987 to 1992, when she transferred to another station.

It was Mr. Hardy who hired her as a go-temp. After being hired as a go-temp he asked her out constantly. She would not go out with him since he was in management. She wanted to get a full-time job without people thinking it was because she went out with the Grievor. She also refused because he was married. His response to this was that he only wanted a one night stand. She testified that he tied his asking her out to the suggestion that she would get more shifts. She said that this was normally made as a joke, and commonly joked about by others as “anyone who went under his desk would get a shift,” but she said that the statement to her was made in private. She did not take his hints of more shifts in return for going out as a joke.

Ms. F gave evidence of unwanted physical contact by the Grievor, which occurred when she was full-time around 1990. The Grievor pushed her against a wall, kissed her, and forced his tongue into her mouth. Regarding this forced kiss, she stated that she was shocked, but that she did not say anything or complain. She stated that she did not want to make him mad. Her view was that if the Grievor was mad, he would get even. He would make things miserable for people who did not please him, such as changing partners and assigning distant stations.

Ms. F’s evidence is that the Grievor constantly made sexual jokes, comments and gestures. He would make a gesture with his hand like demonstrating oral sex. He would also begin to undue his pants as a joke. These incidents usually happened in the crew room, according to Ms. F. She doesn’t recall other males in the service ever acting like this. She thought upper management knew about the Grievor, and that if she complained, they would not do anything. She was afraid of losing her job, or of having her life made miserable if she complained about his behaviour.

The propositions continued even after she was made full-time, and he assured her that he had had affairs with others in the office, but no one had known about them. Once she told him that she was engaged, he stopped propositioning her, but he also became angry with her at this point. He was no longer ingratiating: he singled her out for extra duties and was inappropriate in his comments. Some examples of his treatment are: when she called in to book off when her uncle had died, the Grievor was rude to her and told her she ought not to get paid. Other evidence of his retaliation against her included requiring extra duties and such commands as cleaning the fridge after she had just cleaned it. On another occasion the Grievor told her if she was planning to have another baby she should get another job because of the time that was necessary to take off before and after having the child.

Ms. G

Ms. G began as a go-temp with the ambulance service in 1986, and in 1987 she became full-time. She spent one to two years at the station in which Mr. Hardy had his office, although she was mainly at another station. Ms. G related evidence of an incident that occurred when she was still a go-temp during a baseball tournament. She arrived at the tournament late one night after it had already begun and everyone was partying in one of the hotel rooms. The Grievor approached her and told her that if she didn’t come across he would kill her. This she understood as a demand for sex. She thought his aggression was because he had been drinking. It scared her at the time.

A fellow ambulance officer, identified as Mr. O, witnessed this incident from across the room. He did not hear what Mr. Hardy said to Ms. G. When he saw it happen he took Ms. G out of the room. She told Mr. O that she didn’t want to be left alone that weekend because she was frightened of the Grievor.

The next night after the tournament, she was showering before there was to be a dance, in a room that she was sharing with two others. She was sure that she had locked the door to the hotel room. While she was showering, the Grievor knocked on the bathroom door and said that he was coming in. She yelled at him to stay out. Two other individuals were with the Grievor at the time of this incident and it was her view that they came into the room and stopped him. In fact, one of them told her at the time that she could use his room to shower, where she would be safe.

Later that same night, after she was dressed, someone suggested that she fetch some glasses from the Grievor’s room as he was not there. She went to get them. The door shut. The Grievor was there, and he stated that she had better “put out.” Again Mr. O came to her rescue and took her out of the room.

At a second tournament during a Saturday dance she was dancing with another man and Mr. Hardy, in her words, harassed her all night by grabbing at her breasts. Another woman ambulance officer confronted Mr. Hardy and told him to stop, and this woman’s boyfriend asked the Grievor to step outside where there was a confrontation between the two men. After this the Grievor stopped harassing her.

She stated that there was always an underlying sexual tone in everything that the Grievor said. For example, when she and her partner decided to go for ice cream, Mr. Hardy went with them saying his favourite ice cream was cherry. This was said with much sexual innuendo and it was understood that cherry equals virginity. Her partner informed her that the Grievor made tongue motions and gestures behind her back, but she never actually saw this. When she had a male partner, Mr. Hardy asked the male partner whether or not he was having sex with her and what she was like. Other explicit statements included a statement to her that she could earn her epaulets, which meant management position, by getting under the table. At a retirement party he told her he was the “biggest white man and that she wouldn’t be upset if she could have him.”

She took no action at the time of the baseball tournament incident because she was new, and she thought that that was just the way it was. She considered herself to be in a boys’ club. She was twenty-two years of age at the time. She figured there was no point complaining since, at the time, he was her manager. She also stated that the Grievor was intimidating to her because he was calm one minute and then irate the next and she was not sure why or what set him off.

Ms. H

Ms. H began as a go-temp in June of 1989 and became full-time in December 1990 as an ambulance attendant. Initially she worked out of the station in which Mr. Hardy had his office. She was hired by the Grievor’s immediate supervisor to assist the Grievor and was introduced briefly to the Grievor when she was hired.

The first incident that she relates occurred at the station when the Grievor touched, or almost touched a lipstick that she was carrying in her shirt pocket. He said, “What is that?’ and she stepped back almost instantly. She said “It’s a lipstick, that’s all.”

The second incident that she relates is of something that occurred while she was doing a vehicle check alone. The Grievor came up to her with a large sum of money and asked her if she would like to go shopping in Buffalo with him for the weekend. She understood this invitation as a proposition for sex. She said no. He repeated the offer again in the crew room, and again she said no.

The third incident happened at the retirement party noted above in Ms. G’s evidence. As she was leaving, the Grievor kept focussing on her chest and she kicked him in the leg as she walked out. The Grievor did not say anything. She stated that it was common knowledge that he made sexual jokes etc., and she observed it on many occasions.

Ms. I

Ms. I began in the ambulance service as a go-temp in June of 1990, and by December 1990 she had a full-time position. She worked mostly at the station in which Mr. Hardy had his office. She was a partner of Ms. C, and witnessed the groin incident where Ms. C was grabbed by the head. Ms. I was new at the time and greatly shocked by the incident. She remembers that they went directly to the vehicle after this because they had a call. She has never seen any kind of behaviour like this with any other person in the service.

Ms. I relates evidence of the Grievor telling her about the initiation for women into a bike gang. She left the crew room and the Grievor followed her to the garage in order to continue to tell her about the initiation. She didn’t want to hear about it, and Mr. Hardy and the other man he was with thought it was funny and insisted on telling her about it. At some point she went to another station, but still within Mr. Hardy’s service area. When she did see him he would make comments of a sexual nature, or try to button her shirt up, or try to look down her top.

She made an effort never to be alone with the Grievor, but in this new station on one occasion the Grievor cornered her in the kitchen. She felt uncomfortable and trapped. The Grievor put both hands on the counter and leaned into her face saying, “I will have you some day.” She did not respond and waited for him to back, and then she left. This incident occurred while the Grievor was Acting Manager.

Her experience, while being supervised by Mr. Hardy, was that he made crude and sexual remarks all the time and that she saw no change from the start of her work until his termination. In the summer of 1992, she was checking out the new console of an ambulance and was sitting on the driver’s side. Mr. Hardy sat down on the passenger’s side. Then he slid his hand down her back to her buttocks. She moved away and said “Stop.”

In the fall of 1992, Mr. Hardy asked Ms. I’s partner what it was like to have sex with her. Another person in the service heard about this incident and told Ms. I that she should do something about it. In fact, this individual did make a complaint against Mr. Hardy in the fall of 1992, which was investigated. The Grievor called her at home to ask her what she would say to the investigator and before she could answer he told her that he could get her back to the station in which he had his office at any time. He also told her that there were training positions opening up. Training positions were considered good jobs. The Grievor told her that he would be giving her a reference for the training position. Then he again asked what she would say to the investigator. She told the Grievor that she would tell the truth.

Ms. I was questioned again by the Grievor at work, and again she said she would tell the truth. He was irritated with her. Ms. I was upset by the Grievor’s questioning and his reaction so she went to see Ms. B to tell her about her concerns.

Ms. L

Ms. L is currently a police officer with the Ontario Provincial Police. In June 1991, she was hired as a go-temp into the ambulance service, and in October of 1992 she was made full-time, working out of the station in which Mr. Hardy had his office. She was present in the crew room when several ambulance officers were watching the Anita Hill hearings on television. Mr. Hardy was standing beside her as she sat on the couch. She heard Mr. Hardy say something like, “If any bitch ever did that to me I would kill them and burn their house.” She was only positive about the burning of the house. Ms. L added that the Grievor went on to say, “They tried to do that to me once and it didn’t work.” She had no recollection of who else was in the crew room at the time.

Ms. L relates evidence of an incidence when Mr. Hardy was in civilian clothes and told her what she needed was an older man to show her how things were done. He also stated that he didn’t kiss and tell. She took that to mean he wanted to have sex with her. He also told her about having sex with a sixteen year old.

During a meeting with the Grievor, after she received her permanent position, the Grievor congratulated her on getting one of the positions. He had a small video camera in his hand. He told her that she had done well on the scenario, which was part of the exam. He brought the camera up to his face and said, “Now you do something for me, take off your clothes.” She said, “Yeah, yeah,” and she left the room.

The Letter of Ms. Q

Ms. B’s evidence was that having spoken to Mr. A about some of the concerns regarding the Grievor that employees had brought to her; she was directed by him to ask the same employees to make any complaints that they had in writing. As a result of this, fifteen employees put their complaints in writing and submitted them to Ms. B. Many of those appeared as witnesses in this proceeding, but not all. Ms. Q also wrote a letter to Mr. A, dated February 28, 1993. Several months after writing this letter, Ms. Q died of cancer.

Ms. Q stated in her letter that she was hired by the ambulance service as a go-temp in September of 1987, and her home station was the station in which the Grievor had his office. In fact, she had worked as a student out of the same station and that was when she had first met the Grievor. When she first began work she was enjoying herself and her job, and was getting along well with her co-workers. She thought initially that the Grievor seemed to take a special interest in her which, at the time, she thought was because of her ability as an ambulance attendant and her interpersonal skills. From the beginning she noted what she terms “sexual talk” in the station, initiated by the Grievor. When she told him that she found that kind of talk offensive, the Grievor told her that she was in a “man’s job,” and she had to put up with the remarks. The Grievor also told her repeatedly that she had “no rights” as a go-temp and that if she wanted to keep her job she had better “put up or get out.” So she decided to put up with the offensive talk.

For the most part, at that early stage of her employment she saw the Grievor as a “father figure” and a friend. He assisted her in finding an apartment in the area. Then the Grievor told everyone in the station that he was responsible for finding it and he should be invited over to her apartment. He continued with trying to invite himself to her apartment for some time, and got very angry with her when she failed to do so.

Ms. Q also describes the jokes about female go-temps having to go up to Mr. Hardy’s office and perform fellatio on him if they wanted shifts. While she didn’t believe anyone did this for shifts, they all had to put up with the Grievor’s comments, crude jokes, constant harassment, and sexual innuendos on a daily basis. She gave examples in her letter of some of the comments that the Grievor would make such as:

“Remarks about my breasts and buttocks (firmness, nice ass, perfect for filling a champagne glass); comparison of my body to other female employees; how he would do anything to get me in bed; how much it would cost; vulgar comments on how I ate my lunch, especially bananas.”

Ms. Q stated that she felt disgusted and embarrassed by this kind of harassment, but she was too frightened to say anything because the Grievor constantly threatened her employment. She also found this kind of treatment emotionally distressing, so much so, that it became harder and harder to come to work with a positive attitude.

Her first contract was for six months, beginning in June of 1988. She began a second six month contract and again was posted at the station in which Mr. Hardy had his office with another partner on the airport car. She states in her letter that at this point the harassment escalated. Her partner noticed the Grievor’s treatment of Ms. Q and suggested that they stay mobile as much as possible to avoid the Grievor. One day she was relaxing on the couch watching television lying on her stomach, The Grievor came into the room and proceeded to lie down on top of her, pushing his pelvis into her buttocks and laughing as he did it. She pushed him off and left the room to calm herself.

On one occasion, the Grievor found her alone in the locker room. The Grievor began talking to her pleasantly and asking why she seemed so depressed and quiet. She states that before she knew it he had put her “up against the wall and forced himself on me by pushing his body into mine and kissing me with his tongue.” She pushed him away and told him to stop. She left the room and told her partner never to leave her alone with the Grievor again. She and her partner again attempted to stay mobile as much as possible which created certain problems and attracted criticism from Mr. Hardy.

During this period of time the Grievor also called her to her home and invited himself over. She continually rejected his advances. Her contract came to an end in November of 1989, and the Grievor informed her that she and her partner were to be split up. She realized then that she could not work without her partner’s protection. She requested a meeting with the manager and Mr. Hardy’s own supervisor, Mr. Ken Gore. When she and her partner arrived for the meeting she discovered both Mr. Hardy and Ms. B present. Her letter states:

I knew then that it would be our word against Mr. Hardy’s, and judging by Mr. Gore’s mood, he had already made up his mind. During the meeting I was visibly upset and Mr. Gore seemed to be as to why I was so upset and crying. I repeatedly looked at Mr. Hardy and told them I knew what he wanted from me and he wasn’t going to get it.

In the end, Mr. Gore allowed her to stay with her partner, but by this point Ms. Q had decided that she really had to get out of this ambulance service and go to another. She applied to Halton Mississauga Ambulance and was hired within a week. She states that when she began work at Halton Mississauga she was treated with respect and never had the problems that she had at her first ambulance service. When she wrote this letter she was employed with the Halton Regional Police.

Although Ms. Q could not give oral testimony at the hearing, much of what she summarizes was given in evidence by others. Mr. J gave evidence that he was a witness to the comments about eating bananas and the sexual innuendo that went along with it. In her letter she also stated that she was required to do typing for Mr. Hardy and that Mr. Hardy had said typing was “women’s work.” Mr. Hardy admitted this statement in his own evidence, that he was of the view that typing and doing dishes was women’s work.

The meeting with Mr. Gore was also described by Ms. B, and although the evidence is not entirely clear as to the outcome of the meeting, the one thing that is clear was the Mr. Gore reversed the Grievor’s decision to split the two partners. It was not disputed that Ms. Q was extremely upset during this meeting. Others have also given evidence regarding the joke or comment about go-temps having to go under Mr. Hardy’s desk to get shifts. He himself admits that he said it as a joke.

Mr. J

Mr. J was Ms. Q’s partner on the airport vehicle. She became his partner as a go-temp in 1989, and was his partner until she left to go to Halton. He noted that at first the Grievor was “cordial” to Ms. Q, and Mr. J was amazed. He stated that Ms. Q was a little manipulative in that she could be nice to people in order to get her own way. Mr. J observed Ms. Q joking around with Mr. Hardy, and he warned her to be careful. He said that the Grievor made a joke about anything that resembled a phallic symbol - a hot dog, a banana and he teased Ms. Q whenever he saw her eating such items. He testified that as tensions increased between the Grievor and Ms. Q, they took the first call and decided to stay as mobile as possible because she was afraid to go back to the station.

Mr. J gave evidence that when they arrived at the meeting to speak with Mr. Gore, the Grievor and Ms. B were in attendance. When Ms. Q saw the Grievor she “lost it.” It was his evidence that she cried and that Mr. Gore was half laughing. He stated that Mr. Gore was belittling her by saying “there, there.” Ms. Q said to Mr. Gore that she thought she would be able to come to him in confidence, and that Mr. Gore said “That’s not the way it’s going to be.” He confirms that Mr. Gore cancelled the shift change. Ms. Q told him that they would really be punished after that and that is why she decided she had to get another job.

Mr. J saw her occasionally her move to Halton, and they spoke on the telephone. During one telephone conversation she told him about why she had gotten into the ambulance in tears one day, an event of which Mr. J had clear memory. She told him that that was the day that Mr. Hardy pushed her against the wall and forced his tongue into her mouth. He testified that later another female partner, Ms. F, had told him that the same thing had happened to her.

Mi. J was also a partner with Ms. F for some time and describes the day of the “bad storm” where Ms. F and he started their shift early. He confirms her evidence of Mr. Hardy requiring extra duties of her, for example they were told to wash the night vehicles even though they were on the day shift, and that Ms. F was told to clean the fridge twice. It was Mr. J’s view that the Grievor was harassing Ms. F.

Mr. H also wrote a letter to Mr. A, dated April 10, 1993, recording some of the incidents that he had witnessed that involved the Grievor. When he had first arrived at the station, he shared accommodation with Ms. C. This apparently bothered the Grievor and he made comments to Mr. J such as:

Did I lay awake at night listening to her having sex with her boyfriends! Was I having sex with her myself! Was the amount of men coming in and out of the house to see her bothering me! I was asked many times who she was with on the weekends and if they stayed overnight.

Mr. D and Mr. M

Both these men witnessed the Grievor making sexual gestures with his hands, wiggling his tongue, making pelvic thrusts, making comments about female employees including their physical attributes, and questioning whether or not they were sleeping with their partners. On one occasion, Mr. D, as he got into a car with the Grievor, was asked whether or not he would like to “fuck Ms. C.” When he reacted with some shock, the Grievor’s answer was that he would like to.

It was Mr. M’s view that the comments got worse as time went on. He began in the service in the summer of 1989. Mr. M was a partner of Ms. I, and stated that Mr. Hardy often made comments of a sexual nature about her to him. Ms. I was extremely uncomfortable around Mr. Hardy, and that whenever Mr. Hardy came into a room she would leave. He made sure that he never left the room when his partner and Mr. Hardy were there.

On cross-examination Mr. M stated that other men may have told crude jokes, but he certainly had no specific memory of them, whereas he had a clear memory of the constant questioning about his partner and the sexual comments that were made by Mr. Hardy. On cross-examination he said that he told Mr. Hardy he didn’t like to be questioned about his sexual practices or his partner’s, but Mr. Hardy did not stop.

Mr. N and Mr. O Regarding the Allegations of Sexual Harassment

Mr. N began as a go-temp with the service in June of 1984, and became full-time in July of 1985 at the station where Mr. Hardy had his office. He was at the first baseball tournament that Ms. G testified about. She approached him during the tournament, complaining of Mr. Hardy’s sexual advances to her and asked for his assistance. He was not actually a witness that he recalls to any of these sexual advances. He remembers that Ms. G told him that Mr. Hardy had entered her hotel room while she was showering.

On cross-examination regarding the baseball incident with Ms. G, Mr. N stated that Ms. F felt intimidated by Mr. Hardy, and that she had specifically asked him not to leave her alone with Mr. Hardy.

He testified, as the other men did, that he witnessed many verbal sexual comments, made to women, but he also recalled that the Grievor would “force himself close to a female.” He recalled specifically the Grievor did this to Ms. B on one occasion when Mi. N was her partner. He remembered clearly that Mr. Hardy forced her to the wall in the crew room in a joking manner: Mr. N witnessed this from five feet away. He stated that he forced her in a joking manner, and that he doesn’t recall the dialogue, but he remembers that the Grievor was so close that Ms. B had nowhere to go. Mr. Hardy’s body was touching hers. The incident stands out in his mind because he thought it was improper, but he never discussed it with Ms. B.

Mr. N corroborates Ms. C’s evidence of the groin incident. He stated that Mr. Hardy grabbed her by the head and said “While you are down there…” On cross-examination regarding the groin incident with Ms. C Mr. N testified that at the time, people laughed and that he may well have laughed as well.

Mr. N stated that Mr. Hardy made many comments about the women that he had had sexually, and who he would like to have. The Grievor could be very crude with regard to women, saying such things as “Women are nothing but life support systems for cunts.” Mr. N also corroborates that Mr. Hardy made the Anita Hill statement on several occasions.

He always thought that the crudity of Mr. Hardy’s remarks was inappropriate, but since he has been in a management position he recognizes that management has a responsibility to set a tone and establish limits. In response to a question of whether or not he objected to Mr. Hardy’s management style, the witness stated that Mr. Hardy was explosive, and that employees did not know where they stood. He stated that no one said anything because of the “intimidation factor.” It was a favourite saying of Mr. Hardy, that if accused of wrong doings one should show surprise, show concern and deny, deny, deny. Others also testified to this and the Grievor admitted it. He stated further that Mr. Hardy was helpful to him in developing his career, and that Mr. Hardy lent him money at one time. He stated that they had a personal relationship and visited each other at each other’s homes and cottages.

Mr. O began in the ambulance service as a go-temp in 1986, and spent nine months as a go-temp in every station. His first partner was Ms. B and he worked with her for 3½-4 years. Then he went to the station where Mr. Hardy had his office, and he is still there.

Mr. O attended the first baseball tournament that Ms. F testified about. He said that Mr. Hardy was drinking heavily at this tournament, and Mr. O attempted to calm him down. He remembers Ms. F complaining that Mr. Hardy was trying to get into her shower, and he offered her his shower in the end. On cross-examination with regard to the baseball tournament incident on the first night with Ms. F, he stated he recalls Ms. F looking confused and upset when he entered the room and when Mr. Hardy was present with her. He stated that she had a strong personality, but she was clearly upset, quiet and silent. He described her as having her arms down by her sides, looking down, looking up, and “looking for help.” He stated that part of his job as an ambulance officer is to recognize people who are upset and he was very clear that she was upset.

Mr. O made a practice of avoiding Mr. Hardy because the Grievor was always angry and snappy. He recalls being asked questions about whether or not he had had sex with certain of his partners, and he also remembers the remark about women being life support systems. He stated that some people were intimidated by Mr. Hardy, and that the Grievor could do things to make a person’s life difficult. He remembers clearly the Anita Hill statement. He didn’t voice any objections because he didn’t consider it his job to fight with Mr. Hardy.

The Evidence Regarding the Allegation of Racial Discrimination

Mr. M testified that Ms. R was part of the administrative support staff in the head office. She is black. Mr. M recalls Mr. Hardy referring to her as “nigger.’’ When the Grievor made a call to her at the head office, Mr. M thought that Ms. R did not hear the word nor know that she was being referred to in this way. Mr. M was assisting Mr. Hardy in the office as an administrative assistant when this occurred.

Mr. O stated that Ms. R was a secretary in the head office. He stated that she was a nice lady, lots of fun, and good at her job. He recalls Mr. Hardy calling her from his office and saying “Hello nigger, Hello nigger, Hello Ms. R.” He thought that Ms. R only heard the ‘Hello Ms. R’ Mr. Hardy said “Hello nigger” when the phone was ringing. He was of the view that Mr. Hardy said this to get a rise, or for the shock value. The Grievor made this statement to Ms. R when he was either assistant manager or acting manager.

Mr. P gave evidence that Mr. Hardy said to him “Niggers would not work for the service as long as he was manager.” On cross-examination, Mr. P stated that Ms. R was in the service when Mr. Hardy was acting manager, and that there were other blacks in the service.

The Evidence of Mr. Hardy

The letter from Mr. A, dated February 25, 1993 was his first notice of the allegations of sexual harassment against him. This was the letter that informed him that he had been suspended with pay pending the outcome of an investigation into the allegations of sexual harassment. He was instructed in this letter not to approach any ambulance officers, or go into any ambulance stations in the service.

At the time these allegations were made Mr. Hardy was married with two children, a daughter fourteen, and a son seventeen. Because of the stress of the allegations, Mr. Hardy felt that the best thing for him to do was to separate from his family, which he did in May and June of 1993.

Mr. Hardy described the hiring practice of ambulance service personnel. Since summer was their busy time, they normally hired in the summer. Those qualified to compete for a job had to pass a multiple-choice exam. They also had to be scored on a practical scenario. These two scores would be averaged, and the service would take the top ten candidates. The last stage was that the candidates would be interviewed and as long as they seemed reasonable, they were hired. The shift managers did the interviews and made the final decisions regarding hiring. The process was much the same for hiring to full-time positions. There was a written test, a practical scenario, and an interview. In the latter case the interview was also scored and it was the average of the three scores that mattered. As assistant manager and acting manager, the final approval on hiring was his. Shift supervisors are responsible for scheduling go-temps. Assistant managers were not involved in assigning work or scheduling.

Regarding his attitude or opinion of women in the service he stated “If they did a good job it was fine by him.” It was a large service which was spread out with six locations. Three stations were quite slow and three were very busy.

There was a major staff change proposed in 1992. Ms. E was assigned to make the changes, and the final proposal was approved by Mr. Hardy. One hundred and twenty grievances were filed complaining about these shift changes. In fact, it was forty people filing three grievances each. Eventually the shift changes were withdrawn and the grievances were likewise withdrawn.

Mr. Hardy testified that he was very meticulous about the condition of vehicles. He stated that an inspector could come at any time and check the whole vehicle, and that they had to be clean. He said that he was the one who would ultimately be responsible if they were not, and he would be reported if they were inadequate. He stated that if crew members were watching television when vehicles were not clean he would get upset and tell them to do it.

With regard to the telephone taping incident, he stated that an employee had expressed concerns about receiving threatening, abusive phone calls. This person had asked for a device to record calls if he got another one. Since this person was an ex-Ontario Provincial Police Officer and assured Mr. Hardy that it was legal to do this, Mr. Hardy authorized the telephones being equipped to record calls. When other employees heard about this and thought they were being spied upon, it was removed. It was Mr. A who asked Mr. Hardy to have the recording equipment removed.

Mr. Hardy was shocked and hurt by the allegations of sexual harassment. He testified that he was depressed. He had been in the ambulance service for twenty-one years. He thought of his employees, or many of them, as friends. He took pride in being part of the ambulance system.

Mr. Hardy was a member of a bike gang, the Red Knights, a fire-fighters bike club which used to ride with the Blue Knights, a police club when he was twenty-one. He denies that he used this association to intimidate people. He said that people were curious and asked about his membership in the bike club. He presently owns and rides a Harley Davidson.

Except for the accusations of sexual harassment that involved physical contact, Mr. Hardy admitted that he had done much of what he was accused. He said that no one ever told him not to make such statements, and that he wasn’t always the one who initiated such comments. He admits making comments about female employees and wanting to have sex with them. He knows now that he should have, in his own words, done better and that he should have changed. His evidence is that he “failed to stop, others, and failed to change myself after the W.D.H.P. came out.” Before this policy was put into place, “that kind of activity or horseplay was common” and he just wanted to be part of the group.

Mr. Hardy’s Evidence Pertaining to Ms. B

Mr. Hardy stated that he had a personal relationship with Ms. B, that they worked closely together. She would often say, “Is that a wiggle or is your bum chewing gum?” This was the only joke she ever made because she was a lady, according to the Grievor. With regard to her description of groin thrusts, he says he doesn’t recall these but if she said it was so then it was likely. He has no recollection of touching her breast in 1989. They also went golfing together at times, and he had gone to her house for lunch, and to help her fix something.

Evidence Regarding Ms. C

Initially, Mr. Hardy testified that he does not recall grabbing Ms. C’s head and making the remark “While you are down there …” He says that remark has been made over a thousand times, and that everyone participated in it. But later in his evidence he stated that everyone laughed and he kept walking. So he had some recall of the event.

With regard to the hosing incident he stated that she sprayed him first, and then he soaked her. He said it was a joke until the hearing, and now it’s an “incident.” He has no recollection of jumping on her on a chair. When asked about the taping of phone calls, and Ms. C’s view that that was the last straw, he stated that an ex-OPP person had assured him that it was ok. He doesn’t deny listening to her conversation. He stated that Ms. C was pretty much a lady, but she would sometimes make comments like “nice buns.” She was like Ms. B.

Evidence Regarding Ms. F

The Grievor’s evidence with regard to Ms. F was that he did ask her out for dinner, but she refused to go. He stated that he did not think that there was anything wrong with going out with someone in the service. When she said no, he stopped asking her out. He realized that she had an ongoing relationship with another person.

He denies ever pushing her against a wall and kissing her. He admits making sexual jokes and gestures in front of her. His response was that other male employees did the same.

Evidence Regarding Ms. G

The Grievor admits entering the hotel room of Ms. G at the baseball tournament, but he only shouted into the bathroom and left as soon as he was told to get out. It was his evidence that during the party he was joking around with her, and at one point said “I’m going to get you,” and that he was chasing her.

Evidence Regarding Ms. H

His evidence regarding Ms. H was that he did point to her lipstick in her shirt pocket, but he did not touch her. There was a policy that only a pen or a pencil with a clip was to be kept in the pocket, and he was simply telling her to remove the lipstick. With regard to her evidence on the trip to Buffalo, he says he only asked her because she was going to Buffalo too and there was a chance that they would meet. Of the alleged leer at her chest and Ms. H’s kick, he stated that she just walked past and kicked him, that it was done in jest and it didn’t hurt. He stated that he and a bunch of the other guys were watching her walk out.

Evidence Regarding Ms. I

He agrees that the evidence of Ms. I, about a conversation initiating women bikers, did happen. He stated that the other male that he was speaking with was fascinated with bikers and was asking him about this. He said that since so many people were in the kitchen they left and went to the garage. That, in fact, they hadn’t noticed that Ms. I had left the kitchen just minutes before them and had gone to the garage.

In response to her evidence that he said “I’ll have you someday,” while putting his hands on the kitchen counter and leaning into her face, he said he may have said something, but that this was not his language. He further stated that there would have to be a lot going on before he would partake in it.

Regarding Ms. I’s evidence of examining the new ambulance console in the car, where he leaned over and touched her back down to her buttocks, he admitted that he did lean over and touch her, but that he was just trying to see something on the console and that there was nothing sexual intended.

His explanation of phoning her at home, about the training position, was that he had been requested by the training office to call her because she had done very well on the course. He was supposed to see if she wanted to be an instructor, and then get back to the office regarding her answer. He admits that he asked her about an on-going investigation.

Evidence Regarding Ms. L

To Ms. L’s evidence, that he said “If any bitch ever accused me of sexual harassment I would burn her house down,” he admitted that he did make the comment, but he didn’t really mean it. He said that the statement just kind of came out as the hearing progressed, and as Anita Hill was found not to be credible.

He also admits that he may have made the statement that Ms. L needed an older man “I don’t kiss and tell.” He said that he could have said it, but he doesn’t know why. The Grievor has no recollection of telling her to take her clothes off while he held the camcorder. He stated that he had the camcorder at work only once because Ms. B wanted to make a video.

Evidence Regarding Ms. Q

In response to the evidence in the letter of Ms. Q, the Grievor stated that Ms. Q asked for things that go-temps had no right to and that is why he told her she had no rights to certain things. He did not specify as to what she asked for that was not within her rights. He denies ever lying on top of her on the couch. He does not remember ever pushing her against a wall and forcing a kiss on her.

In concluding his evidence, the Grievor said that the behaviour that he has admitted in the hearing didn’t seem so bad at the time, and he understands that for a manager this sort of behaviour was inappropriate. He stated that he has lost everything, and that he would like his job back.

Evidence on Cross-Examination of the Grievor

On cross-examination, the Grievor admitted that he was aware of the collective agreement provisions on sexual harassment, and aware of the Ontario Public Service’s sexual harassment policies. He stated that he was familiar with the directive of 1989, and was so in 1989. When one of his subordinates was accused of racial harassment in 1992, as part of the discipline process the Grievor read the whole policy to this individual. He agreed again that the statements of this subordinate were less offensive than what he admitted to in this hearing. He stated further, “Yes, but he had to deal with it because Ms. E brought it to his attention so he had to talk to this subordinate.”

The Grievor agreed that management had to set an example, and that in order to maintain authority, one had to act like a manager at social functions as well. He did not think that his behaviour had any impact on bargaining unit employees because they use the same sort of language. He stated that he did not attempt to stop them from using it.

He admitted that he stood close enough to Ms. B that he pressed his groin into hers, when her back was against the wall, but denied doing this in an earlier incident where Ms. B was sitting down, because a chair was between them so it couldn’t have happened.

On cross-examination, the Grievor said, regarding taping Ms. C’s personal telephone conversation, that he had not taped one of her calls, although he had admitted this in examination-in-chief.

On cross-examination regarding Ms. G’s evidence on the baseball tournament, the Grievor indicated that the room she was showering in was the party room and so they were all in and out of it all day. Since she was having a shower, they left. He stated that he found it surprising that she was upset since they didn’t have the greatest liking for each other. The Grievor stated that they talked to each other, but they were not friendly and that he would not joke with her. With Ms. G it was “strictly business.”

When counsel for the Employer put it to the Grievor that in his examination-in-chief he said that he was chasing her around saying “I’m going to get you,” the Grievor said that that was a joke. He admits that one of the ambulance officers spoke to him that night, and that he was “Getting rambunctious. ”

On cross-examination, in regard to Ms. Q, the Grievor stated that he might have said that she was in “a man’s job,” in response to her complaint about sexual jokes and gestures. However, he denies expecting to be invited to her apartment. He may have said in a joking way that typing was women’s work. He denies making continual advances to Ms. Q.

Ms. B had given evidence of Mr. Hardy’s deep dislike of Ms. Q by the time she left the service. She heard the Grievor say with regard to Ms. Q “She’s a piece of shit and I hope she eats shit and dies.” He has no recollection of saying this, but he was of the view that if Ms. B said he had then he must have. After being pressed with this statement on cross-examination, he admitted that he disliked Ms. Q. He was asked for a reference when she was seeking a position with the police, and he gave her a poor one. He gave no reasons for his opinions of Ms. Q, except that he thought she was unstable.

When cross-examined on his advice to others if accused of wrong doing to “act surprised, look concerned, and deny, deny, deny,” the Grievor stated that a policeman had told him once. He admitted that he had given this advice to others.

The Grievor said that other men made sexual comments and gestures like the groin thrusts. Counsel for the Employer put it to the Grievor that if the women say other men did not do this kind of stuff they are lying, and the Grievor said yes. He also stated that he did nothing to stop this kind of behaviour. The Grievor responded that he thought it was acceptable by everyone.

Ms. B and Ms. C said that sometime in 1992 the Grievor overheard staff commenting in a negative way about his behaviour, and they both testified that he was extremely upset. Both of them, in separate conversations, warned him that he needed to change his behaviour. The Grievor said that he had no recollection of these events.

Evidence of Other Witnesses for the Grievor

Other witnesses testified on behalf of the Grievor. Most of the evidence was not particularly helpful to the panel regarding the issues before us. However, for completeness, we have summarized the key parts. The evidence largely speaks to Mr. Hardy’s rough-edged, but straight -forward management style.

Evidence of Mr. S

Mr. S began work in the ambulance service as a go-temp in 1984, and became a full-time ambulance officer after three to four years. He’s worked at the station where Mr. Hardy had his office for the last eight years.

He gave evidence regarding the baseball tournament, of which Ms. F testified. He stated that he and Mr. Hardy walked into Ms. F’s room, and that the door was not locked. He could hear the water running in the bathroom, and Mr. Hardy knocked on the door. They asked her if she was going to the party, and she said “Yes. Get out.” When he was cross-examined about his evidence regarding the tournament, he agreed that it would be inappropriate to enter the bathroom. Mr. S said that Mr. Hardy may have had his hand on the door knob, but he didn’t go in. He may have grabbed Mr. Hardy and pulled him away. He wasn’t sure. They had been drinking.

He could not recall that Mr. Hardy had ever made the life support comment, although he said he may have made it. Mr. Hardy used sexually explicit language with male ambulance officers. Mr. Hardy had worked with an all-male crew for a long time, and that it was just “guy talk” in the witness’ view. There may have been females present during such talk, but they either participated or left the room.

Regarding Mr. Hardy’s management style, Mr. S said that the service ran smoothly. Mr. Hardy was hard to deal with sometimes. He had never heard Mr. Hardy make the comment about burning a woman’s house down if she accused him of sexual harassment, but others had reported it to him.

It was his opinion that if Mr. Hardy had a problem with someone, while he was a bit aggressive, he was straightforward. Staff would sometimes attempt to irritate Mr. Hardy, and that they would say things such as “Fred’s coming in, let’s wind him up and have a twister.” On cross-examination, Mr. S said that at times he found Mr. Hardy intimidating and rough-edged. He couldn’t recall whether he had ever seen gestures of a sexual nature made while female staff were around - such things as sticking his tongue out and pelvic movements.

He admitted during cross-examination that once, at someone’s cottage, Mr. Hardy called him a “greasy wop.” He said there was a lot of drinking going on and he didn’t complain. He also stated that on another occasion when it happened, he asked Mr. Hardy to stop, and they started fighting. Another ambulance officer broke the fight up. He said that other ambulance officers also called him a “greasy wop.”

Mr. S gave a statement to the W.D.H.P. investigator, which he signed after reviewing the notes. Regarding the baseball tournament, referred to earlier, his statement says

“Mr. Hardy was drunk, grabbed W (witness), and dragged him with him to the hotel room of a female staff. R tried to walk in the washroom. W left the room. He tried to pull R away first. The woman started yelling and R left.”

R refers to Mr. Hardy: W refers to Mr. S.

On cross-examination, he was asked whether Mr. Hardy said “Niggers always get their way,” but he couldn’t remember this statement. In his statement he said,

“R always talked about ‘niggers always getting their way.’ He commented about LA. riots ‘niggers trying to get their own way by violence.’

When asked whether this paragraph was accurate, the witness said yes. He said that he was telling the truth when he gave his statement to the W.D.H.P. investigator. In this statement, Mr. S also said that

R said if any female ever tried to pin me with sexual harassment I would go to their house, board up the doors, and set it on fire. The implication was that they would still be inside the house.

He also remembered that one of Mr. Hardy’s “favourite sayings was show concern, act surprised, and deny, deny, deny” if accused of wrong doing.

During re-examination of this witness, with regard to the last paragraph of page two of his statement where he said that at the time he had a partner who was black and that he recalled Mr. Hardy making racial comments about the partner, he clarified this statement by saying that he had never heard Mr. Hardy call his partner “nigger,” but that his partner had told him that it had happened and that he found it offensive.

In his statement he said he was afraid of Mr. Hardy, for his own physical safety and his wife’s. When questioned why he, as a golden glove boxer, was afraid of Mr. Hardy Mr. S said that boxing gloves don’t stand up to a bullet.

The Evidence of Ms. T

Ms. T began in the Ministry of Health in November of 1977 in a dispatch position. She first met Mr. Hardy when he was a shift supervisor when she came to York. She used to be a dispatcher for both air and land, and now she only tracks air. She stated that she had never had a problem with Mr. Hardy and she was hard-pressed to think that anyone could have a problem with Fred Hardy. He was her immediate supervisor for a few months when he was an acting manager at dispatch. She had never heard of any complaints about Mr. Hardy. She was also a union steward for the unit for eighteen years. She heard complaints from people about stand-by, and because of her union “orientation” she had explained their rights. As a union steward she had also had to deal with harassment complaints.

Ms. T knew Ms. Q. She had met her three times in approximately 1991. Ms. T remembers a conversation with Ms. Q and that Ms. Q did not like Hardy. She remembers that Ms. Q stated “he’s a prick.” Ms. T’s evidence is that sometime in 1993, after Mr. Hardy was suspended, Ms. Q phoned and said that if anybody at Ms. T’s office had had trouble with Mr. Hardy they should come forward. Ms. Q said “It was payback for the son of a bitch.” Ms. T did ask if anyone had had trouble and no one came forward from her office. It was her view that it was because of Mr. Hardy that women were hired and that he generally defended the hiring of women.

When a list of the people who had come forward to complain about Mr. Hardy was put to this witness she said that “she was appalled that her brothers and sisters had let it go for so long, and let it become a monster.” When asked in re-examination why she was appalled, she said that these people should have confronted Mr. Hardy immediately and put him on notice. She said that her service, the York service, was always a “boy’s club.” She said if the part-timers were frightened then she wonders why the full-timers didn’t step forward.

The Evidence of Mr. U

Mr. U was a mechanic in the service and worked from June 10, 1991 until he left in 1995. He stated that he was based in Bramalea where it was common practice to make sexual, sexist and racist remarks. No one made more than others. Most of the remarks were made by men, and not in front of the females.

Mr. Hardy was assistant manager when Mr. U was hired. He stated that Mr. Hardy was a strong, aggressive manager, and that he was very strict. If he was upset with Mr. Hardy he dealt with it on a one-to-one basis with him, and if that was not successful he went to upper management.

Mr. U could not remember an incident reported in a memorandum of Mr. D summarizing his concerns about Mr. Hardy on March 1, 1993, wherein he stated that Mr. Hardy had made a crude sexual remark about a young woman coming out of a nearby bank. On cross-examination he said it was a common practice. Mr. U felt that he was pushed by Mr. Hardy, but never felt that Mr. Hardy discriminated against him. He was not interviewed by the W.D.H.P. investigator.

The Evidence of Mr. V

Mr. V began in the service in 1967. He has been an ambulance officer, supervisor, office manager, and station manager. He was injured in 1989 and transferred to another ministry four years ago in approximately 1992. He hired Mr. Hardy in 1971, and was his supervisor for eight years. He described the ambulance service in the 1970s and 1980s as close-knit with a strong sense of community service, such as sponsoring ball teams.

Mr. V heard sexual comments and witnessed sexual gestures made by Mr. Hardy around other males. When asked to compare Mr. Hardy to other males in the service he said “The Grievor was straight-forward. If there was something wrong he would tell you.” He said that Mr. Hardy never made sexual jokes in front of women. He said that he had never heard Mr. Hardy speak about having sex with female employees, and he had never heard any complaint from anyone about Mr. Hardy.

He had heard Mr. Hardy make the life support systems comment, but that others had made it as well. Upon cross-examination, this witness said that the last time he supervised Mr. Hardy was in approximately 1987, and that because of his accident in 1989, sick leave and later school for two years, he didn’t have any contact with Mr. Hardy between the years of 1989 and 1993.

The Employer’s Submission on the Evidence

Counsel for the Employer argued that the evidence was overwhelming as to the Grievor’s sexual harassment of his subordinates. The Grievor had admitted a number of serious incidents of sexual harassment, but he had not admitted the incidents that involved physical contact. He pointed out to the panel that in order for us to accept Mr. Hardy’s denials that these events occurred, we would have to find that all the employer’s witnesses were lying.

Regarding the credibility of his witnesses, he pointed out that Ms. B has been in the ambulance service for a significant period of time, and steadily advanced in her career. It was clear in the manner in which she gave her evidence that she harboured no malice for the grievor. She is now herself a manager of another ambulance service.

Ms. C has also had considerable time in the service and is advancing in her career. There has been no suggestion that she has any reason to lie, or anything to gain by lying.

Ms. L was a short-term employee in the ambulance service, and not one of the original complainants in this case. She is currently an Ontario Provincial Police Officer, with no stake in the outcome of this matter. Again, counsel points out that she has no reason to lie. He argued that all of the witnesses were credible and, no doubt had been cast on their credibility.

In conclusion, he stated that we either had to believe these witnesses on the incidents that sexual harassment that involved physical contact, or we had to believe Mr. Hardy that they did not occur.

It is the Employer’s position that Mr. Hardy’s supervisors and senior management were not aware of his conduct until a letter was forwarded to them complaining of the treatment of Ms. I. This led to the investigation in 1992 mentioned in Ms. I’s evidence. It was shortly after this complaint that Ms. B had people come to her with complaints and she then went to Mr. A for assistance. Once complaints were put into writing, the Employer investigated and, subsequently, terminated Mr. Hardy’s employment.

Counsel argued that the W.D.H.P. is a policy which makes it clear that the employer will never condone sexual harassment, and the investigators under this policy report directly to the Deputy.

As to the argument that these allegations were unreported for so many years and, therefore are not true, Counsel argues that we don’t have to make a finding regarding this but, it is explained, because the victims of the Grievor’s harassment were intimidated by him. He has admitted that he had control over his subordinates in various ways, for example in changing assignments. Once the Grievor became acting manager, he was the most senior manager in that service. Senior management above Hardy were not on site and, therefore, Mr. Hardy’s subordinates were isolated.

Ms. Q’s Letter

Counsel for the Employer argues that Ms. Q’s letter, while hearsay, is clearly admissible. Ms. Q died two to three months after writing the letter. He stated that the issue for us to decide was whether or not the document is credible. He points to the evidence of other witnesses in this hearing that have corroborated parts of the letter. He also notes that the Grievor has admitted much of it. The Grievor denies the forced kiss. Counsel asked us to consider the remarkably similar description of Ms. F’s experience when she was forced to kiss Mr. Hardy. Further, he argues that Ms. Q had nothing to gain by writing this letter since she was very ill and, in fact, dying.

The Grievor has admitted helping Ms. Q find an apartment, and has admitted that initially they had a good relationship. Ms. B also confirmed this evidence. But by the time Ms. Q leaves the service, Ms. B said, and the Grievor admitted he disliked her and he made the remark about hoping she would die. This dislike, Counsel argues, is irrational: the Grievor made no explanation as to why he disliked her so much. It was Ms. Q’s theory that the dislike was because she rejected his advances. Counsel points out that this is a classic reaction by sexual harassers.

The evidence given regarding the meeting with Mr. Gore was also corroborated by her then-partner, Mr. J. Ms. Q’s letter refers to the Grievor as to suggesting that go-temps will get additional hours if they go under his desk, and points out that the Grievor did not deny this suggestion, but rather argued that it was just a joke that originated with someone else. Counsel states that whenever a manager suggests to a go-temp that the person can gain hours for sex it is not a joke. Even if he intended it as a joke, he argues that the Grievor is stuck with the fact that the staff who heard it didn’t think it was a joke.

In summary, counsel for the Employer says that a substantial portion of Ms. Q’s letter has been admitted or proven through other witness’, and that we should rely on the evidence as provided in this letter. He states that Ms. Q was the subject of systematic sexual harassment while she worked under Mr. Hardy’s supervision, which is consistent with others who have given similar evidence.

In summarizing the evidence of the women witnesses, counsel for the Employer made several points. He noted that the evidence showed that Ms. B did not experience the same kind of conduct, nor did many of the other women, from any other males in the service as she received from Mr. Hardy. The women often heard swearing and jokes, but no one else acted like Mr. Hardy. Some witnesses testified that there was a difference between the two parts of the service, the east and the west, the east being the part of the service in which Mr. Hardy was responsible for so many years. Both Ms. E and Mr. D gave evidence of the differences between the east and the west side of the service, stating that it was well-known that Mr. Hardy did not enforce the W.D.H.P. and this influenced the conduct of others, in lowering the standard of behaviour. He pointed out that both Ms. B and Ms. C had spoken to Mr. Hardy and warned him about his behaviour.

Counsel argues that there was a pattern to the Grievor's victimization of staff. He argues that the pattern that emerges in the evidence is that Mr. Hardy targeted female go-temps, who are wholly dependent on management for hours. He also targeted those on short-term contracts and probationers, again because they were in a highly dependent situation. He noted that the go-temps were young and just beginning their careers, and therefore not in a position to take on senior management. The evidence showed that the level of harassment declined as the women got more secure in their positions and they, therefore, had less reason to complain. He also noted that people were embarrassed to complain after they had taken the harassment for so long. Ms. B was clearly embarrassed by the fact that she had not complained when the harassment happened to her back in the mid-1980s.

The evidence of Ms. L shows that the same pattern of targeting go-temps was still on-going as of the fall of 1992. Counsel suggests that Ms. L is a strong person, now a policewoman, and not someone who would be pushed around. He argued that the suggestion to take your clothes off may not have been dealt with as easily by others.

Counsel argued that Ms. C said that she suffered constant sexual advances until she got a boyfriend, and then Mr. Hardy stopped. Counsel points again to the evidence of Ms. G, and the incident at the baseball tournament as evidence of the Grievor targeting new employees in a weak position to defend themselves and their evidence was admitted by the Grievor. He argued that it was inconceivable not to think that Ms. C would be both degraded and insulted by the incident in which her head was grabbed and pulled towards Mr. Hardy's groin. He argued that for Mr. Hardy to say that this was just a joke is either a blatant lie, or shows that he is totally unrepentant and has not yet learned or recognized what the sexual harassment policy is about.

Mr. Hardy’s explanation of the incident where the Grievor slid his hand down Ms. I’s back to her buttocks is not credible. She certainly did not think it was innocent. Given the other evidence, counsel argues that we must infer that it was not intended.

Several of the men testified that their female partners were afraid or intimidated or, at the very least, uncomfortable around the Grievor. Mr. J testified that about Ms. Q. Mr. M testified similarly about Ms. I.

Before finishing his comments on the evidence, counsel for the Employer argued that the Grievor’s suggestion that it was another ambulance officer who first made the remark about women as life support systems was particularly nasty. He pointed out that the Grievor’s own witness, Mr. V, said that it was one of the Grievor’s favourite sayings, although other people also used it frequently. The Grievor’s evidence that he was surprised by this comment by another attendant is entirely incredible. Further, his attempt to attribute it to Mr. O is, in his words, a nasty falsehood.

Summary of Ministry Counsel’s Argument

In summary, Counsel argued that the allegations by the women that had given evidence had been substantiated by the evidence of the men who came as witnesses, and some of the allegations had been admitted by the Grievor. As a supervisor, the Grievor engaged in sexual gestures and comments that were blatantly derogatory, and by the evidence made the women staff un comfortable and, in some cases, fearful of him. The Grievor engaged in physical contact, touching, groping, forcing kisses upon subordinates. He attempted to use his position of responsibility, whether he was always serious or not, to get sexual favours. Counsel argued that, for example, when he asked Ms. L to remove her clothes while he held a camcorder, that objectively this couldn’t be seen as a joke. Since the gestures and conduct are known to all in the service, it is important for this Board to uphold the grievance because a decision will act as a deterrent, according to counsel.

Counsel argued that it is impossible to reinstate the Grievor because the Grievor has assaulted and degraded women staff and in so doing he has degraded and insulted himself. Counsel argued that he can never be a leader again. Further, that he has victimized so many people that it would be impossible to reinstate him into a station where he would not be working with some of the people that he harassed.

Further, he states that this Board does not have the power to reinstate the Grievor with a demotion. The evidence is clear that Mr. Hardy’s former position, because of a reorganization, has been changed to that of shift manager, which is the first level of management out of the bargaining unit. He argues that we are not in a position to reinstate the Grievor with a demotion because that would be to reinstate to the bargaining unit and the collective agreement overriding the regulation would not permit this. Thus, if we reinstate the Grievor, we are not in a position to demote him.

Counsel argued that the Employer is obligated by Article A of the collective agreement with OPSEU, and the Ontario Human Rights Code, R.S.O. 1990, c.H. 19, as amended, to keep the workplace free of sexual and racial harassment. He cited Fawcett, GSB case, that held an employee is entitled to a workplace free of harassment and Canning, P/0008/92 (Springate) for the proposition that a subordinate does not have to object to such harassment as kisses.

Counsel argued that the evidence of the Grievor’s sexual harassment, in some cases harassment that amounted to sexual assault, was overwhelming and that the Employer had just cause to dismiss Mr. Hardy and thus should dismiss the grievance. Counsel argued cases cited later in this decision in support of the legal argument that this panel should dismiss the grievance.

Counsel argued that while the case focuses on sexual harassment, the Grievor admitted the racist slurs he made in front of bargaining unit staff. He argued that it appeared from the evidence that the Grievor used the word “nigger” for no other reason but amusement or for shock value. He argued that by using such language in front of the bargaining unit staff, he all but instructed such individuals to use similar language. The Grievor also admitted that employees under his supervision made racial slurs and that he did nothing, and that it did not occur to him until this hearing that this might indicate a prejudice which might affect performance of the job. Counsel argued in summary that the Grievor’s failure to deal with the racism, as well as his own admission of making racial slurs, was enough to justify his termination.

The Grievor’s Submission on the Evidence

Addressing the issue of credibility, Mr. Foreman argued that we have to weigh all the circumstances of the case and remember that the events happened a long time ago. Mr. Foreman points out that the Grievor has admitted the incident regarding Ms. C, where he grabbed her head and made the statement “While you are down there …” He further stated that the Grievor has apologized for it in this hearing. Ms. C has given evidence with regard to this incident that she objected. Ms. I, who witnessed the incident, said that she didn’t see Ms. C object, and they went directly out on a call where nothing was said to her in the car. Mr. N also witnessed this incident, and said that everyone laughed, which is also the evidence of the Grievor. Thus, Mr. Foreman argues that four people have very different recollections of this event. He argues further that it is not lying, but that in most cases it has to do with memory and the perspective of the individual during the event.

Mr. Foreman argues that the environment of the ambulance service was a “boys club,” and that it was “sexualized.” He submitted that the Grievor had to accept his share of the blame for this. However, he came in the early 1970s when it was a “boys club.” Nevertheless, he should have changed when he became a supervisor (he became a supervisor in 1984). Until 1992, there were other managers above him. Mr. Foreman argues that while Mr. A may not have known about Mr. Hardy’s actions, other supervisors did know. That other supervisors knew of this activity does not establish condonation or diminish Mr. Hardy’s activities in Mr. Foreman’s opinion. He argued that the ambulance service, in dealing with serious trauma, did so by making sexual jokes and conducting in horseplay.

In summarizing the evidence, he agrees with counsel for the Employer that there are two key differences in the evidence. He states that the lewd comments and gestures were largely done before males in the “boys club” activities, with some conduct directed at females. But in his view, it was not a significant amount. Mr. Foreman disagrees with Mr. Strang’s view that Mr. Hardy targeted new and vulnerable employees, and points out that some incidents happened well after people were permanent, for example the touching of Ms. B’s breast. Further, the ‘you have to go up under the desk’ joke was directed towards go-temps, but Mr. Hardy denies that he initiated this joke, while he did participate in it sometimes. He argues that in any case no one took it seriously. In assessing the evidence, Mr. Foreman argues that it has the flavour of being re-hashed, amplified, and embellished.

With regard to the evidence of Ms. B, Mr. Foreman notes that there were a couple of incidents of inappropriate touching and Ms. B pushed the Grievor away. There is a dispute about whether or not in 1989 he touched her breast. The Grievor’s evidence was that he couldn’t believe he had done it because he respected her. Mr. Foreman emphasized the evidence that Ms. B gave that she viewed the Grievor as a good manager who had taught her much about the ambulance service. Ms. B described his conduct at times as flirting, and Mr. Hardy admitted that he was engaging in this kind of activity. However, Mr. Foreman argued that he has apologized and he won’t do it again.

He argued that when people told him clearly to stop, the Grievor always did so. It was Ms. C’s evidence that when the Grievor went to grab her head and say “While you are down there…” on the second occasion, she stopped it before it even began and he didn’t continue. This is evidence that he stopped when women made it clear that they did not like the behaviour. Mr. Foreman argues that the incident where Mr. Hardy laid on her on the couch was probably joking (although the Grievor denied that he did this). With regard to the water hosing incident, this was also just joking around.

As to the evidence of Mr. D, Mr. Foreman argues that Mr. D claims never to have participated in any bad language, and never objected to anything that the Grievor said. However, one of the Grievor’s witnesses, Mr. U, states that Mr. D did participate in jokes, and even mimicked Pakistanis.

Mr. Foreman points out that Mr. Hardy stopped pursuing Ms. F in 1991, when she got a boyfriend. Although he may have continued with some flirtation, in commenting about Ms. F’s evidence that he forced a kiss on her while she was pressed against a wall, Mr. Foreman states that there is evidence contradicting where it happened. He argues that it strains credulity to think that Mr. Hardy was to be the best man at her wedding if, in fact, it happened. He also states that we shouldn’t accept evidence that he did things like begin to take his pants off, or attempt to look down female’s shirts.

In commenting about Ms. G’s evidence on the baseball tournament, he states that her evidence and Mr. O’s are not completely consistent. In his view, what clearly happened was that nothing happened. In fact, he argues that it is one of those stories that have been built up and become part of the folklore of the organization. Thus we should not rely on Ms. G‘s evidence.

The same sort of view can be taken of Ms. H’s evidence regarding the invitation to go to Buffalo. In Mr. Foreman’s view, Ms. H put a spin on the offer, and her spin was a wrong perception. His argument is that Mr. Hardy did not by implication - holding a large sum of money and asking Ms. H if she wanted to go to Buffalo - proposition her. She just misunderstood.

Mr. Foreman argues that the only corroborating evidence in Ms. Q’s letter is from Mr. J, who was her partner. Mr. J stated that Ms. Q was manipulative and wanted a permanent job. It is Mr. Foreman’s submission that the only other person who reports a forced kiss is Ms. F, and she does not report it to anyone until much after the event when she talks to Mr. J. Referring again to Ms. Q’s letter, Mr. Foreman submits that there is a conflict in the evidence between Mr. J’s evidence and Ms. Q’s evidence in her letter and, therefore, cannot be relied upon since it is hearsay. He states that it is not necessary or reliable, that the letter was written at a time when Ms. Q was on a campaign to “get” Mr. Hardy, and he argues that in at least two or three areas there is a gloss on the truth.

Mr. Foreman argued that the evidence showed that the employees giving evidence had two sets of concerns, besides the sexual harassment management style was an issue. He argued that the employer’s handling of the original complaints and the hearing before the decision to dismiss Mr. Hardy was not handled properly, and that even though the hearing before this Board was a hearing de novo, how the dismissal was handled goes to the decision of what penalty should be upheld. Foreman stated at the outset of his argument that the Grievor admitted that he had engaged in some inappropriate behaviour, and that some discipline was, therefore, reasonable. He left what kind of discipline for the Board to decide. But the Grievor’s representative took the position that discharge was excessive, and that we should consider all the circumstances of the case.

Mr. Foreman cited the Public Service Act, R.S.O. 1990, c.P.47, as amended, Section 22(2), which provides that the employer may suspend an employee for one month, or dismiss for cause. He also reviewed Section 13(30) and (36) of Regulation 977, and concluded that this Board is not limited by what the Employer can do in our review of the grievance.

Mr. Foreman cited W.M. ‘Scott & Company Ltd [1977] C.L.R.B.R. 1, a decision of the British Columbia Labour Relations Board, as instructive of the standard for review of cause, applicable in the case before us.

... arbitrators should pose three distinct questions in the typical discharge grievance. First, has the employee given just and reasonable cause for some form of discipline by the employer? If so, was the employer’s decision to dismiss the employee an excessive response in all the circumstances of the case? Finally, if the arbitrator does consider discharge excessive, what alternative measure should be substituted as just and equitable? (at page 5.)

The Board went on to state that the answer to the question involves a factual assessment of whether or not the employee actually engaged in the alleged conduct, triggering the discharge. In answering the second question of whether the misconduct is serious enough to justify discharge, the Board held that arbitrators should consider the following:

(i) How serious is the immediate offence of the employee which precipitated the discharge (for example, the contrast between theft and absenteeism)?

(ii) Was the employee’s conduct premeditated, or repetitive; or instead, was it a momentary and emotional apparition, perhaps provoked by someone else (for example, in a fight between two employees)?

(iii) Does the employee have a record of long service with the employer in which he proved an able worker and enjoyed a relatively free disciplinary history?

(iv) Has the employer attempted earlier and more moderate forms of corrective discipline of this employee which did not prove successful in solving the problem (for example, of persistent lateness or absenteeism)?

(V) Is the discharge of this individual in accord with the consistent policies of the employer, or does it appear to single out this person for arbitrary and harsh treatment (an issue which seems to arise particularly in cases of discipline for wildcat strikes)?

Mr. Foreman argued that since this case stood for well-established arbitrable principles, which should be applicable in the case before us.

Mr. Foreman argued that it was the Ministry of Health who was the employer, and not this particular ambulance service, and if it was not possible to put him back into this ambulance, the Employer is a large one and there may be other possibilities. He argued that this Board could require the parties to fashion a remedy. Mr. Foreman made no argument in response to the Ministry’s argument that the Grievor could not be reinstated with a demotion. He stated that termination was the equivalent of capital punishment and argued that it was too harsh in this case. He cited the following cases in support of his argument: Re: Western Grocers, Division of West Foods Limited and United Food and Commercial Workers Union, Local 1400, (1993) 1993 CanLII 16641 (SK LA), 32 L.A.C. (4th) 63; Re: Bannister v. General Motors of Canada Limited, (1994) 1994 CanLII 7390 (ON CTGD), 8 C.C.E.L. (2d) 281 (Gen. Div.); Re: Oshawa Foods Division and U.F.C.W., Local 175, (1993); Re: Ontario Store Fixtures and United Brotherhood of Carpenters and Joiners of America, Local 1072, (1993) 1993 CanLII 16809 (ON LA), 35 L.A.C. (4th) 187; Re: Ottawa Board of Education and Ottawa Board of Education Employees Union, (1989) 1989 CanLII 9378 (ON LA), 5 L.A.C. (4th) 171; Re: Government of the Province of Alberta (Department of Social Services and Community Health) and Alberta Union of Provincial Employees (1983) 1983 CanLII 4924 (AB GAA), 10 L.A.C. (3d) 179; Re: City of North York and Canadian Union of Public Employees, Local 94, (1990) 1990 CanLII 12697 (ON LA), 16 L.A.C. (4th) 287; Re: Canada Cement Lafarge Limited and Energy and Chemical Workers Union, Local 219, (1986) 1986 CanLII 6679 (ON LA), 24 L.A.C. (3d) 202; Re: Canada Post Corporation and Canadian Union of Postal Workers, (1987) 1987 CanLII 8801 (CA LA), 27 L.A.C. (3d) 27; Re: The Crown in Right of Ontario (Workers’ Compensation Board) and Canadian Union of Public Employers, Local 1750, (1995) 1995 CanLII 18272 (ON GSB), 45 L.A.C. (4th) 257.

Decision

Since the Grievor has conceded that some discipline was warranted, the issue for this Board to decide is whether or not discharge is the appropriate penalty for the Grievor’s conduct as described by the Ministry witnesses. The Grievor has admitted much of the evidence given by these witnesses that relate to gestures and comments of a blatantly sexual nature. He denies, or does not remember, most of the incidents which involve physical contact. Mr. Hardy apologized in his evidence for the behaviour which he admitted, but it was clearly in the context that before this hearing he was somehow ignorant of the impact of his actions and as his representative argued, the “boys club” atmosphere of the service somehow excused his behaviour.

Where there is disagreement between the Ministry witnesses description of events, and Mr. Hardy’s description of events, we prefer the evidence of the Ministry witnesses. The men and women who testified for the Ministry to this panel gave their evidence in a straightforward and credible manner. Several of the more senior women, now in management positions, were clearly uncomfortable and unhappy at having to give evidence of unpleasant and humiliating harassment by the Grievor, for which they had not complained when it occurred. We agree with Ministry counsel that these women had no reason to lie, and had nothing to gain by lying to this panel. And we disagree with the view that their evidence was in any way “rehashed, amplified, and embellished.”

In contrast, we find that Mr. Hardy’s evidence is not credible. For example, where he has admitted that a physical contact occurred, he claims it was innocent. Ms. I gave evidence of checking out a new console in an ambulance, and while she was sitting in the driver’s side the Grievor sat down on the passenger’s side and slid his hand down her back to her buttocks. Ms. I objected strenuously at the time. Given the evidence before this incident of Mr. Hardy’s pursuit of Ms. I it is not believable that his touching her was innocent.

Mr. Hardy initially could not remember the groin incident then denied grabbing Ms. C by the head, although he admitted the statement that he made at the time. He excuses it as ‘‘just a joke.” There were, however, witnesses to this incident, and Ms. I, who was then Ms. C’s partner, clearly remembered the incident and that she was greatly shocked at seeing it at the time. That there are small differences in the evidence of the witnesses regarding the groin incident tends to support the conclusion that this “incident” was not rehashed or embellished. It clearly occurred.

There are other examples of inconsistencies. The Grievor’s initial position was that his sexual jokes, gestures and comments were made in front of the male employees. However, we heard much evidence of the “jokes’’ that occurred in front of female employees. Indeed, Mr. Hardy admits and apologizes for these jokes, but then goes on to say he did not realize they were offensive. But this panel heard evidence from many of his subordinates who told him they did not like his sexual jokes or gestures or his sexual solicitation of them. In some cases he told them they had to put up with this treatment and in other cases he clearly ignored his subordinates.

Another inconsistency in his own evidence is the Grievor’s initial position that his relations with Ms. G were strictly business and he really didn’t like her. Yet he pursued her at the Baseball tournament and admitted that he chased her saying “I’m going to get you.” He explained this incident as a joke.

Mr. Hardy generally explains his behaviour either by saying it was a joke, or that he didn’t understand that the women he was making advances to did not wish the attention, or that he just simply doesn’t remember in the case of physical contacts such as forcing a kiss on two of the women who were his subordinates. And unlike the incidents with Ms. C and Ms. I, there are no witnesses to the forced kisses or the touching of Ms. B’s breast.

This panel was asked not to believe Ms. F’s evidence, that the Grievor put her against the wall and forced his tongue into her mouth. It is not credible, according to the Grievor’s representative, because Mr. Hardy was later invited to Ms. F’s wedding. However, we also heard evidence that Ms. F’s husband-to-be at the time was a friend of Mr. Hardy. Further, what emerged as a pattern for many of the witnesses, particularly in their earlier days of service, was that they did not want to, or did not feel comfortable standing up to Mr. Hardy and complaining about his behaviour. We believe this to be the case with Ms. F., and have no reason to doubt her evidence.

Mr. Hardy also denied forcing a kiss on Ms. Q. Ms. Q’s evidence, largely corroborated by others who came and gave oral evidence to this panel, was given in a letter written before her death. This letter corroborates evidence given by other women, and with regard to the kiss is remarkably similar to what happened to Ms. F. There is more than enough evidence before this panel to find that Mr. Hardy committed sexual harassment amounting to sexual assault, without the evidence of Ms. Q’s letter. However, her letter is corroborative of other evidence. It was certainly admissible hearsay and is credible. There was some evidence from a witness for the Grievor that by the winter of 1993 Ms. Q was out to get Mr. Hardy. Ms. Q phoned Ms. T to let her know should anyone in her office have had difficulties with sexual harassment by Mr. Hardy, they ought to put their complaints in writing. She told Ms. T that it was “pay back” time. Frankly, given Mr. Hardy’s treatment of Ms. Q, it is not surprising that she felt like this. The evidence is that the Grievor hounded her after she rejected his advances and he hated her so much that he said in the presence of Ms. B that he hoped Ms. Q “would eat shit and die.” We are not persuaded that her evidence is, therefore, not reliable, because she said it was “pay back” time.

Mr. Hardy, in his evidence, appears to have followed the advice he gave others when accused of some wrongdoing which is to act surprised and concerned, and deny all. He has certainly denied the most serious allegations against him in the hearing before us.

In summary, therefore we find that the Grievor, while he was a supervisor and manager, engaged in gestures and comments of a blatantly and derogatory nature. That further he engaged in physical contact, in particular - grabbing one employee by the head (the groin incident), touching one employee’s breast, kissing two other employees, that he made “passes” or solicitations to subordinates, especially when they were new employees in go-temp or contract positions. The Grievor admitted, in his own examination-in-chief, that he made explicit comments about sex to female employees and indicated that he wanted to have sex with them. We will comment further on the evidence as necessary in the reasons for our decision. We need make no factual finding regarding the racial discrimination alleged against the Grievor, since he has admitted speaking into the telephone, before Ms. T answered, saying “Hello nigger.’’ repeatedly, on several occasions.

There was no argument that if the panel found Mr. Hardy to have engaged in the conduct for which he was accused that this conduct is sexual harassment, contrary to the Human Rights Code R.S.O. 1990, c.H.19, which provides:

Section 7(2) Harassment because of sex in workplaces - Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.

Harassment is defined at section 10 (1):

“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;

It is clear that the Grievor engaged in sexual harassment ranging from “jokes” which poison a workplace to physical contact amounting to sexual assault. In Re Scarborough General Hospital (1992) 1992 CanLII 14543 (ON LA), 25 L.A.C. (4th) 44, the arbitrator cites the Supreme Court of Canada’s opinion of sexual harassment. In Janzen, Chief Justice Dickson said:

Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcomed conduct of a sexual nature that detrimentally affects the work environment, or leads to adverse job-related consequences for the victims of the harassment. It is, as adjudicator Shime observed in Bell v. Ladas (re. Bell and Korezak) (1980), 1980 CanLII 3899 (ON HRT), 27 L.A.C. (2d), 227, and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and the self-respect of the victim, both as an employee and as a human being. (p.49)

It is clear from our factual findings that the Grievor engaged in unwelcome conduct of a sexual nature with nine female subordinates. On his own evidence he pursued and solicited subordinates, which was a blatant abuse of power and position. We heard much evidence of the humiliation that it caused these women. Mr. Hardy’s behaviour demeaned them as employees and as human beings.

The issue for this panel to address then is whether the Grievor’s sexual harassment of his subordinates was of such a nature that it justified the Employer’s decision to terminate his employment. It is clear from previous decisions of arbitrators that sexual harassment will not always justify termination. After careful review of the evidence, and submissions of the parties, we have decided to uphold the termination and dismiss this grievance. We are of the view that Mr. Hardy’s misconduct was so serious that the Employer had just cause to terminate his employment.

None of the cases presented by the Grievor’s representative, where reinstatement was ordered, were persuasive given the facts before us. In some cases, the arbitrator found that there had been no sexual harassment. No case contained evidence of physical contact amounting to sexual assault.

We are guided in our decision to dismiss the grievance by a previous decision of this panel. Canning P/0008/92 (Springate) is a case where this Board upheld a discharge for sexual harassment and dismissed the grievance. In fact, Mr. Hardy had considerably more authority than Mr. Canning who only supervised three people. As Acting Manager, Mr. Hardy was running an entire service, isolated from senior management.

The Board in Canning dealt with many of the same issues presented to us. Mr. Canning argued that the general office atmosphere allowed “joking conduct of a sexual nature,” that he did not realize his comments such as “want to smooch?” “are we still in love?” and kissing someone on the neck and hand were sexual in nature. He argued further that the women subordinates should have objected. Finally, he argued that he was out of date or from an era which permitted such behaviour and, therefore, his employment should not be terminated. The Board rejected these submissions. After finding that the behaviour summarized above was sexual harassment, the Board in Canning held that an employee does not have to object to sexual harassment.

Further, as a general proposition, we do not believe it reasonable to require that an employee object to her supervisor about distasteful conduct. In this regard we adopt the following reasoning of a tribunal established under the Canadian Human Rights Act in Potapcyzk v. MacBain (1984) 1984 CanLII 5028 (CHRT), 5 C.H.R.R. D/2285 at pp. D/2296-7: It is not necessary that women expressly object to their employer that they find the conduct distasteful as a pre-condition to their lodging a complaint under the Canadian Human Rights Act. To insist upon such a requirement may serve only to create a worse situation for a woman who is already in a vulnerable position. A complaint may in certain circumstances be provocative and attract even more severe adverse consequences. The following observation by the U.S. Court of Appeals in Bundy v. Jackson supra [(1981) 641 F. 2d 934] at p.945 is most apt.

“It may even be pointless to require the employee to prove that she ‘resisted’ the harassment at all. So long as the employer never literally forces sexual relations on the employee, ‘resistance’ may be a meaningless alternative for her. If the employer demands no response to his verbal or physical gestures other than good-natured tolerance, the woman has no means of communicating her rejection. She neither accepts nor rejects the advances; she simply endures them. She might be able to contrive proof of rejection by objecting to the employer’s advances in some very visible and dramatic way, but she would do so only at the risk of making her life on the job even more miserable. It hardly helps that the remote prospects of legal relief ... remains available if she objects so powerfully that she provokes the employer into firing her.

The employer can thus implicitly and effectively make the employee’s endurance of sexual intimidation a ‘condition’ of her employment. The woman then faces a ‘cruel dilemma,’ She can attempt to oppose it, with little hope of success, either legal or practical, but with every prospect of making the job even less tolerable for her. Or she can leave her job, with little hope of legal relief and the likely prospect of another job where she will face harassment anew.”

We were also asked to consider that there was no objection to Mr. Hardy’s behaviour by his subordinates. This we find in part to be false - some clearly objected, but as case law indicates, that a woman does not strenuously object is no excuse to the harasser.

As the cases quoted in Canning make clear a woman who does not object to continual sexual banter does not necessarily acquiesce. Nor does a woman ever have to object to physical touching such as Mr. Hardy imposed on Ms. B - touching her breast, Ms. C - the groin incident, or the forced kisses of Ms. F and Ms. Q, which is clearly behaviour that the Grievor thought reasonably to have known was unwelcome and by its very nature constitutes sexual assault.

The Board in Canning also held that general horseplay in the office was no excuse for Mr. Canning’s behaviour; nor that others acted in a juvenile way. In any case, the Board held that the behaviour of the Grievor was of a different nature than the others in the office. We similarly find that a boy’s club atmosphere does not in any way justify the Grievor’s serious misconduct. We also find that Mr. Hardy’s behaviour was of a different nature than the others in the service. There was evidence that others engaged in sexual jokes and banter, but there was no evidence to suggest that others engaged in sexual harassment amounting to sexual assault. Further, we do not accept the argument that the Grievor was “from the old school.” The Arbitrator in Re McMaster University (1993) 33 L.R.C. (4th) 33 rejected this kind of excuse and also dealt with issues similar to those before us.

In McMaster, the arbitrator concluded that the grievor’s touching of a young fellow female employee’s buttocks on several occasions, and his grabbing one of her breasts over her right shoulder all amounted behaviour which constituted sexual assault within the meaning of section 271 of the Criminal Code. The Board held that the grievor’s comments about sex and questions about what sex she had with her boyfriend also amounted to sexual harassment. The Board upheld the grievor’s termination commenting on the seriousness of the misconduct and that being from the “old school” was no excuse for behaviour amounting to sexual assault.

This panel was also asked to consider that there was no warning from the employer before the dismissal and that there was no progressive discipline. The argument is that the Employer should have counselled and reprimanded the Grievor to give him an opportunity to correct his behaviour. We are of the view that the Grievor’s conduct amounting to sexual assault of several of his subordinates is not deserving of progressive discipline.

The arbitration board in Scarborough General Hospital, (supra) found similarly. In this case the grievor’s employment was terminated after his sexual harassment of a young female employee. The employee was seventeen years old, and worked in the hospital on a part-time basis. The young employee was subjected to a pattern of unwelcome conduct of a sexual nature, culminating in an incident where he approached her from behind, “pressed his pelvis against her and began a pumping motion.” When asked to stop, the grievor replied “I know this feels good.” The arbitrator in this case decided that the employer had just cause for dismissing the grievor. He said that the grievor’s behaviour was reprehensible and constituted serious misconduct. He decided further that, given the serious nature of the facts, there would be no mitigation of penalty. It is important to note that there was no policy against sexual harassment established at the time of the incident, and the grievor had had no notice that the behaviour was unacceptable. The arbitration board held, however, applying an objective test, given the nature of the harassment, the Grievor ought to have known that his behaviour was unwelcome. He stated that the physical contact with the complainant amounted to overt molestation and was, in fact, sexual assault. So even though there was no progressive discipline, and the employee was not warned, the termination was upheld.

In the case before this panel, it is clear that the Employer had clear policies prohibiting sexual harassment from 1989. The Grievor was well aware of these policies and, in fact, was charged with the responsibility of implementing them. The Grievor ought to have reasonably known that his behaviour was unwelcome, and constituted serious misconduct. However, the evidence shows that the Grievor continued even after the policy was out to harass female subordinates. Given the serious misconduct of the Grievor in this case, and given all the circumstances of the case the Employer was not bound to use progressive discipline.

In deciding this case, we have been mindful of the principles outlined in the W.M. Scott case, and in considering whether or not the penalty ought to be a lesser one than termination. We have addressed some of the issues above. In summary, we are of the view that Mr. Hardy’s sexual harassment of his subordinates, which at times amounted to sexual assault, is a very serious offence. As the Supreme Court in Janzen held, it is an abuse of power. We find that the Grievor’s conduct was repetitive, happening over a number of years and to many subordinates. Although Mr. Hardy has a long record of service, his long service alone cannot excuse such a serious abuse of power. Similarly, progressive discipline in such a severe case is not appropriate. It is clear that no employer should have to counsel an employee not to sexually assault his subordinates. Finally, this panel finds that the termination of the-Grievor is within the consistent policies of the Employer, and that the Grievor has, in no way, been singled out for arbitrary or harsh treatment.

There was no evidence provided to this panel that senior management knew that Mr. Hardy was engaging in sexual harassment which amounted to sexual assault. But even if they did, we agree with the reasoning in Re: Royal Towers Hotel Inc. and C.E.B.U., Local 40, 1992 CanLII 14466 (BC LA), 32 LAC (4th) 264, that sexual harassment cannot be condoned:

So, I do not accept the generalization that sexual harassment has been condoned because I do not accept that our society has condoned harassment of and injury to another person. I recognize notwithstanding that such misconduct will still occur, but I would reject the notion that somehow this is a mitigating circumstance. Each case requires individual scrutiny, and I agree that ignorance may possibly be an excuse in some cases, but ordinarily this would not be so. Particularly, one does not need to be told that you do not torment and demean another person and do so repeatedly such that you make them miserable and make them hate coming to work. That applies to any harassment - sexual or not. Quite simply, any person with a modicum of goodwill and respect for his fellow man, would know better. Any person need only ask himself how he would like it if he or his wife, daughter or sister, or other loved one had to work under such conditions.

Finally, there was no evidence provided which suggested that the manner of investigation of the allegations against Mr. Hardy should mitigate the penalty of dismissal.

Other factors have influenced the panel’s decision. While we are cognizant of the grave impact of dismissal, upon the Grievor, we cannot ignore the impact that the Grievor had on so many of his subordinates, poisoning the workplace so much that those in the service recognized a clear difference between the atmospheres of the “west,” and “east,” where Mr. Hardy was a manager. And thus we disagree that Mr. Hardy can be put back into the service. Our decision is also in part influenced by the Grievor’s lack of candour with this Board and his failure to recognize his serious misconduct

Mr. Hardy’s Illness

Before finally disposing of this case, several other matters need to be addressed by the panel. Mr. Foreman argued on the Grievor’s behalf that while he was suspended with pay he became ill, suffering job related stress and high blood pressure. Mr. Hardy made a claim for sick benefits, which the Employer denied. It is the Grievor’s position that these benefits were wrongly denied, and that he should have been permitted to stay on sick leave until he was declared fit for work again in November of 1993.

Counsel for the Employer argued that during the first six months an employee is ill, the short-term sickness plan covers the employee’s salary. The full cost of this plan is borne by the employer. Although counsel for the Employer questions whether or not Mr. Hardy would qualify as being ill during this period, he argues that it does not matter because the short-term income protection is provided by the employer for six months before long-term disability can be sought. Counsel cited OPSEU and the Crown in of Ontario (Ministry of Health, Windsor Provincial Ambulance) (962/93) in support of his argument where the Board held that the reason for the Grievor’s absence was not illness, and stated that sick leave is for people precluded from being at work because they are sick. Mr. Hardy was precluded from being at work because he had been suspended.

We agree with the Employer on this issue, that even if the Grievor was ill, he was not eligible to collect the short-term income protection because he was, at the time of application, suspended with pay. He was paid his salary until his employment was terminated, whether he was sick or not. Thus we deny the claim for salary up to November 1993.

Costs

Finally, we must address the Grievor’s request for costs. On March 21, 1996 the Grievor’s representative made a motion for costs incurred when the Employers’ Counsel asked for an adjournment on February 28, 1996. Employers’ Counsel asked for an adjournment during the OPSEU strike because certain of his witnesses were unavailable to testify. Mr. Foreman was not consulted, nor did he consent to the adjournment. He argued that since his client has been unemployed for almost three years, his client deserved to have these costs reimbursed. He argued that a party requesting an adjournment should bear the costs: re. Hawker Siddley Canada Inc., Arenda Divisions and International Association of Machinists, Lodge 1989 CanLII 9334 (ON LA), 1922, 7 L.A.C. 4th 172, re. Shoppers Meat Markets Ltd. (Metro Provisions) and United Food and Commercial Workers International Union, Local 633, 1984 CanLII 5251 (ON LA), 16 L.A.C. (3d) 184. Mr. Foreman did not quantify his request for costs and asked this Board to award a reasonable amount should we find in the Grievor’s favour regarding this issue.

Counsel for the Employer stated that days set for this case to begin on the merits fell on the first four days of the OPSEU strike. Counsel takes the position that the adjournment was for extraordinary circumstances, and that he had no choice but to ask for an adjournment since certain of his witnesses were simply unavailable due to overriding work duties.

Counsel argued that this Board does not have the power to order costs, but that we certainly don’t have the power to order costs having granted the adjournment.

This Board has granted costs to a grievor in only one instance because of extraordinary circumstances (Callaghan, P/0009/89). We are unaware of any case where this Board has considered awarding costs for an adjournment. In this case we are of the view that an award of costs is not warranted. We agree with the counsel for the Employer that we cannot award costs for an adjournment after the adjournment has been granted. Also, in this case the request for the adjournment was made for good reason, that is, witnesses were unavailable. Moreover, because of efficient handling of this case by both Employer’s counsel and the representative of the Grievor, the days that were adjourned were not required to be re-set. Thus, we are of the view that this is not a case which justifies awarding costs.

In conclusion, for the reasons above, the Grievor's discharge is just and proper in all the circumstances of the case. We do not feel that substitution of a lesser penalty is appropriate. The grievance is, therefore, denied.

Dated at Toronto this 18th day of June 1997.

I Dissent" (dissent attached)

D. Halpert, Member

Public Service Grievance Board

F. Hardy and Ministry of Health

P/0034/93

Dissent of D. Halpert, Member

This case has many disturbing aspects to it which, while in no way meant to excuse the reprehensible behaviour of Mr. Hardy, tend to mitigate the penalty which should have been imposed.

My comments are presented in an effort to balance the methods of dealing with the enormous problems faced by women attempting to bring about change in non traditional jobs.

“ZERO TOLERANCE”

The employer’s handling of the investigation and subsequent discharge of the grievor is a major concern. Largely as a result of Premier Bob Rae’s ill advised “zero tolerance” remark in his letter to all OPS staff of July 24, 1992, the heavy handed manner in which the case was dealt with, raises many questions. For example:

1. What does ‘(zero tolerance)' mean? Does it equate sexist jokes with rape? Is the employer to handle sexual harassment as a matter of degree or is the penalty always the same?

2. Clearly, the male employees of this ambulance service were in fear for their jobs. It is beyond belief that the series of men who witnessed and testified about Mr. Hardy’s sexist jokes and behaviour, were all innocent of participating in like behaviour, given the culture of the service. However, they all (except one) testified about Hardy’s behaviour, but asserted that they never engaged in sexist jokes or behavior on the job. In my opinion, the effect of the employer’s “zero tolerance” stance was so heavy handed as to effect the evidence that was presented.

3. Notwithstanding the policy, which states, “a person who has the authority to prevent or discourage harassment may be considered responsible for failing to exercise his or her authority to do so”, the District Manager stated he was not responsible for confronting transgressors or investigating these allegations. This was truly an astounding revelation. The District Manager testified that he regularly visited his stations but had no idea Mr. Hardy was engaging in this behaviour and never heard any concerns about sexual harassment.

4. An outside investigator, apparently from the Women’s Directorate, interviewed the people who worked with Mr. Hardy in order to gather evidence. It was clear to me from the testimony that the men being interviewed felt threatened. One witness (referred to above) testified that the culture was such that most of the men and many of the women engaged in boys locker room horseplay and joking. He admitted, under oath, to participating in these antics. When asked why he signed a statement drafted by the investigator, indicating that Hardy did these things, but he did not, he admitted that he was afraid not to sign the document. The report of the investigator was not presented to this panel. But, it seems apparent to me that the manner in which this investigation was handled was intimidating to the male employees. Here are some of the questions asked of the male employees:

a. Have you ever made any sexually explicit or profane language in the workplace?

b. Have you ever made any comments to female staff about their physical appearance, features or clothing?

c. Have you ever touched any female employees in the workplace?

d. Have you ever told any sexually explicit jokes in the workplace?

In light of the “zero tolerance’’ of the employer, the men may well have feared for their jobs had they answered yes to any of these questions.

OTHER MITIGATING FACTORS

1. The actual letters of complaint were withheld from the grievor and his counsel until the employer was instructed to share the documents at the hearing. The employer’s attempts to avoid sharing this information is contrary to its own policies.

2. The testimony of many of the women was about events which took place as long as eight years ago. The closest determination to the timeline was often an estimate of the year and the season. While the evidence was otherwise consistent and the witnesses believable, the estimates of when these events took place left the grievor with vague recollections and no recollection of some of the more serious allegations. It is possible that the failure to recall is self-serving. It is also possible that, given the timelines, the recollection truly is vague. Mr. Hardy’s greatest transgression may be the admission that, while his acts were an affront to the women, they were unimportant to him.

3. Nobody complained. The union representative testified these women had the protection of the union and should have complained. That can never be held against the victims. However, it should have some effect on the manner in which the employer deals with the issue when it comes to light.

DISCUSSION

Sexual harassment is intolerable in the workplace. A concerted and thoughtful effort needs to be mounted to educate both prospective perpetrators and potential victims of their rights and obligations. Having said that, there is a need for balance and a recognition that sexual harassment can be a matter of degree. In the scheme of these things there is a difference between sexist jokes and physical abuse. There is a difference between thoughtless remarks and actions and demands for sexual favours in exchange for gain.

Mr. Hardy’s behaviour was motivated by his sexist and insensitive personality. There was no evidence he sought sexual favours in exchange for managerial favours. When told to cease, he seems to have complied with the request. Hardy’s crime is one of insensitivity and stupidity, not intent.

The same can be said for his racist remarks. By any standard, his remarks, made to impress a third party, were unacceptable. But the evidence is that he respected and had a good working relationship with the “victim” of his remarks and she respected and had a good working relationship with him. One wonders what her reaction would have been had she been aware of the remarks. Racist behaviour and remarks such as these diminish and dehumanize the perpetrator more than the victim. Again, we have evidence of insensitivity and stupidity, not intent.

Professor Aggarwal, referred to in Re: Western Grocers and UFCW Loc. 1400, 32 L.A.C. (4th), p. 71 presents a list of factors to be considered with respect to discipline:

1. The nature and gravity of the misconduct;

-there is no questions the misconduct was profound. I would suggest, however, that this type of offense should be considered by degree.

2. Mitigating factors such as length of the grievor’s employment and seniority and disciplinary record;

-Mr. Hardy had 21 years of apparently good service. His performance appraisals, as late as January 1992 indicate “Very good Assistant Manager, Excellent Technician and Trainer” All checked items were above average. There was no comment on any of the performance appraisals regarding his treatment of female staff. The performance appraisal of January 1991 refers to interpersonal skills improvement and give an average rating for this category.

3. isolated versus repeated misconduct;

-this appears to be a case of repeated misconduct. However, it is difficult to put this in context, since the evidence we heard spanned the course of about eight years.

4. procedural due process;

-the principles of the employers workplace harassment directive include:

a. “complaints must be filed within a reasonable time after the alleged occurrence---”

b. “the alleged offender must be notified as soon as possible, provided with a copy of the complaint, and given the opportunity to respond to the allegations.”

C. “there must be no interference with an investigation or attempt to coach or intimidate a witness”

With regard to procedural due process I have major concerns.

5. employer’s tolerance, inaction or condemnation of the sexual harassment or horseplay in the workplace;

• notwithstanding the District Manager’s apparent ignorance of the nature of his service, there is no doubt the culture of this ambulance service was such that horseplay and sexist attitudes existed. Management never took seriously the need to bring about cultural change! Consider Mr. Hardy’s performance appraisals. There was no mention of his relationship or behaviour towards women, I’m sure Mr. Hardy took the comments in these documents as his guide to performance on the job.

6. grievor’s demeanor and attitude during the hearing (such admission of guilt, feeling sorry, apologizing to the victim);

-Mr. Hardy expressed regret for many of his actions, but could not recall the more serious of them. This may be self serving or selective memory.

7. principles of progressive discipline.

-there was no progressive discipline involved in this case. What is clear is that Hardy just didn’t get the message. Through the neglect or oversight of his manager, his behaviour was reinforced in his own mind. He must have believed this behaviour was tolerable. It was never brought to his attention through discipline or performance appraisal or sincere attempts to bring about change in the culture of the organization.

Other factors include the question as to whether the grievor is “redeemable”, or has the employment relationship been so fundamentally breached as to render it devoid of any possible future viability? (Brown & Beattie; 7:4422) I believe Mr. Hardy is redeemable, given his obvious dedication to the ambulance service and his good performance appraisals.

THE PENALTY

1. In Seneca College of Applied Arts and Technology and OPSEU, Grievance of Robert Gregory (unreported), Arbitrator Brian Keller, found, on the evidence, that the grievor had engaged in sexual harassment of students, who were developmentally handicapped and therefore more dependent, in many respects, on their teacher. Keller also found that the grievor had made repeated racist remarks. Here is an extract of the award (p.14):

This Board categorically states at the outset that it finds the conduct of the grievor to have been reprehensible and is firmly of the view that that reprehensible conduct requires and warrants severe discipline. However, as in most matters, there is a balancing of competing interests that must take place. In the instant case, the Board was impressed by the evidence of the individuals against whom the harassment and discrimination took place. It was obvious that they were hurt by the actions of the grievor. On the other hand, the Board has the evidence of the expert witnesses called by the employer about how they would handle situations of this sort and the results of not bringing situations of this sort to the attention of the alleged perpetrator. The Board also has in front of it the College’s own policy as to how it must deal with issues of harassment and discrimination.

Procedural fairness is one of the hallmarks of the judicial system. It must also be on of the hallmarks of the arbitral system. It fundamental to this system that individuals be aware at the earliest opportunity of allegations against them so that they can either have an opportunity to correct their conduct or not, in which case subsequent actions of the employer are clearly justified.

• it was their (the expert witnesses) testimony that a harasser must be confronted, that education is required and that, under certain circumstances, discipline is required. If matters are ignored they stated, situations will get worse and will not be resolved

This is precisely the case with Hardy. Keller substituted and lengthy suspension for the discharge. The grievor had seven years service.

2. With reference to Re: Kings County District School Board and N.S.T.U., 46 L.A.C. (4th) p. 289, there are similarities. A teacher “flirting” with female students. The decision should, in my opinion, have served as a guide to dispose of the Hardy case:

3. He be instructed to write a letter of apology to the complainants to be given to the employer for distribution.

4. He undergo psychological assessment designed to determine whether he might pose a threat to female staff. A copy of the report to be given to the employer.

5. He undertake educational sessions and counseling regarding standards of behavior toward female staff

6. He agree to such supervision as the employer may determine.

7. A reinstatement with no back pay would, in effect, be a multi-year suspension. It would have sent a clear message to the Ontario Public Service with regard to sexual harassment.

8. By all accounts, Mr. Hardy was an excellent ambulance trainer. While this board does not have the jurisdiction to order alternate work assignments, I would have suggested to the employer the required accommodation.

Finally, I sincerely hope this employer, and others where women are entering non-traditional jobs, undertake a serious campaign to bring about the change in attitudes and values which may have prevented this tragic situation from getting to the point it did.

Respectfully Submitted

D. Halpert, Member

May 12, 1997