P/0070/93

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

D. A. DaSilva

Grievor

• and -

The Crown in Right of Ontario (Ministry of Health)

Employer

BEFORE

D.J.D. Leighton

Vice-Chair

FOR THE GRIEVOR

D. A. DaSilva

FOR THE EMPLOYER

L. Brossard Counsel Legal Services Branch Management Board Secretariat

HEARING

September 26 and 27, 1996

INTRODUCTION

On October 15. 1992 Mr. Douglas DaSilva, then Operations Manager, Claims Payment Division, Ministry of Health, was notified that two grievances had been filed against him an Ontario Public Service Employee’s Union (OPSEU) bargaining unit employee alleging sexual harassment and harassment. These allegations were investigated, found to be unsubstantiated, and subsequently withdrawn on April 21, 1993. The Grievor was notified by registered letter on May 7, 1993 that the grievances had been withdrawn at the Stage 2 meeting with the Employer and OPSEU. Mr. DaSilva’s grievance arises from these events. He claims that he was treated unfairly and that his immediate supervisor mismanaged the investigation.

In a preliminary decision of this Board, I rejected the argument by Ministry Counsel that the Grievor, having not been disciplined, had no cause for complaint. I held that the Employer held a fundamental duty to treat those accused of what constitutes a serious breach of the Ontario Human Rights Code R.S.O. 1990 with fairness, whether or not the complaint was pursued under the Workplace Discrimination and Harassment Prevention Policy (WDHP), or as the result of a grievance filed according to the collective agreement. Masters V. Johnson (1994), 1994 CanLII 10571 (ON CTGD), 18 O.R. (3d) 551 (Div. Ct.) cited by Ministry Counsel established that even in the investigation of a complaint of sexual harassment, the Employer owes a duty of fairness to the accused employee (at p.585). In Masters the court assessed whether or not the process chosen by the government, in that case the WDHP procedures, satisfied the duty to be fair to the accused employee. The court held further that whether or not the employer has been fair to the alleged harasser will depend on the facts of the case taken as a whole.

Having dismissed the preliminary objection of the Employer this case proceeded to hearing on the merits of the grievance. Mr. DaSilva represented himself in the hearing.

THE EVIDENCE

Mr. DaSilva had been employed in the Ontario for twenty three years in 1992. The employer agreed that he was an excellent employee, with no disciplinary record. In 1990, his supervisor recommended that Mr. DaSilva receive the maximum merit increase. Mr. DaSilva was appointed as the Acting Operations Manager, Claims Payment Division in the Ministry of Health on October 1, 1991, an AM-19 classification.

Mr. DaSilva gave evidence that on October 16,1992 he was informed by his immediate supervisor, Mr. C. Mee, Director, Western Region, Claims Payment Operation, Ministry of Health, that he had been charged with harassment and sexual harassment by a bargaining unit employee, Ms. Van Biesbrouck. Mr. DaSilva testified that he began to explain what had happened regarding a particular incident with Ms. Van Biesbrouck, but Mr. Mee would not listen to him. Mr. Mee told Mr. DaSilva to get a lawyer and that he had to order an investigation.

It was Mr. Mee's evidence that Ms. Van Biesbrouck and a union steward met with him on October 15 or 16, 1992 to give him the grievance forms and inform him of the complaints. He was shocked when he received the two grievances alleging sexual harassment and harassment against Mr. DaSilva. He said that Mr. DaSilva was the last person he would imagine would be in this situation. It was his evidence that he “took it at face at that point.” Mr. Mee said that Mr. DaSilva looked shocked by the news of the grievances.

Mr. Mee then called the Director of the division, Eileen Mahood, and they decided together that there should be an investigation. They agreed on Ms. Sandy St. Germaine, a Regional Director from Eastern Ontario. He stated that he met with each party to see if Ms, St. Germaine was acceptable as an investigator and that she was. DaSilva denied that he consulted in this regard. He said that he had no communication regarding the complaints against him with Mr. Mee between October and the end of March.

Approximately one and a half weeks after Mr. Mee received the grievances of the bargaining unit employee, the Union President, Ms. Sandra Noad, met with him and said that she did not believe the grievance was a sexual harassment complaint, even though that was what was written on the grievance form. He was upset by this news, but according to Mr. Mee the Union was not about to amend the grievance, and he took no action in response to this information. Mr. DaSilva testified that he was never told this. Mr. Mee testified that he did inform Mr. DaSilva of the union’s opinion.

In early November, Ms. Germaine called Mr. Mee and said that she couldn’t do the investigation after all. Mr. Mee called Ms. Mahood and they decided that Ms. Karen Charlton, Manager, Organizational Planning and Development, in the Kingston office, should be approached and asked if she could investigate the matter. According to Mr. Mee, Ms. Charlton was called in November and she indicated that she would not be in a position to investigate the matter until the beginning of December. Mr. Mee testified that he informed the parties, that is Ms. Van Biesbrouck and Mr. DaSilva. On December 7, Ms. Charlton was injured in an accident and she needed three to four weeks to recover from her injuries. Mr. Mee discussed the further delay with Ms. Mahood and informed her that if they went to the Corporate Human Resources Office, which was their next possibility, it would take even longer to get an investigator. Mr. Mee acknowledged that staff in the office were making allegations and insinuations about DaSilva during this period of time. Ms. Charlton did not start the investigation until January 26. 1993.

THE INVESTIGATION

The investigation began January 26, 1993. Mr. Mee testified that he met with Ms. Charlton to discuss the procedure of the investigation, but that he did not discuss the allegations or the atmosphere in the office. At the end of that day, according to Mr. Mee, Ms. Charlton said that she was not finished and reported some of her perceptions to him. Mr. Mee said that he was very supportive and positive about Mr. DaSilva when he spoke to Ms. Charlton. The report indicates that Ms. Charlton interviewed three people on January 26, 1993. They were Ms. Van Biesbrouck, Mr. DaSilva and Mr. Mee.

The further delay between January 26 and the release of the report on March 22, 1993 was because Ms. Charlton needed to follow up on certain issues that were raised during the January 26 interviews. The report notes that she needed to check on procedures for using banked time, and vacation approval. Mr. Mee testified that he actually received the report in the first week of April. It was his evidence that he called Mr. DaSilva the day he received the report, but there was no answer. He attempted to telephone two or three times that day, and once the next day. In a letter dated May 7, 1993 to Mr. DaSilva, Mr. Mee confirmed that the Union had withdrawn the grievance on April 21, 1993. Mr. Mee also stated that he met with Mr. DaSilva and showed him the report. Mr. DaSilva was permitted to read it, but Mr. Mee would not give him a copy. Mr. Mee made it clear that nothing was going to be done because of the report. Mr. Mee was of the view that Mr. DaSilva was very hostile to him. Mr. Mee did not remember when this meeting occurred, but Mr. DaSilva said that it happened before the Stage 2 meeting between the Employer and the Union, and that Mr. Mee did not say that no action would be taken on the report.

On cross-examination, Mr. Mee said that he considered sexual harassment complaints to be very serious and that while it was important to deal with them promptly, they had to be done thoroughly. He said that sometimes up to twelve months to investigate was necessary. He did not set a time limit in this case because he wanted everyone to get a fair hearing. The investigator noted that she was asked to undertake the investigation of this matter in early December of 1992. In contrast, Mr. Mee was sure she was contacted in early November. Mr. DaSilva cross-examined Mr. Mee on another difference in his evidence and the report. The report states at page 4:

It was learned during the interview of Mr. Mee that generally the men in the London office have an attitude of superiority over the predominantly female staff, and that, in particular, Mr. DaSilva has said that Ms. Van Biesbrouck takes advantage of her disability.

Mr. Mee, when asked about this quotation, denied that he had said this. He also denied that he had been interviewed. Rather, he said that he met with Ms. Charlton only to discuss process. Early in his evidence Mr. Mee said that he had experience with sexual harassment complaints and that it was his view that a manager should not be involved with the investigation. This was why he would not listen to Mr. DaSilva's initial response to the complaint. He said he took a hands-off approach to the actual investigation.

Mr. Mee also stated that he wasn't sure whether or not Ms. Charlton had had any training that would enable her to do such an investigation. He said that he did not like the report, which left a bad taste in his mouth, but there was no point asking her to do it over.

Mr. Mee said that he was happy that Mr. DaSilva was exonerated. The report found that the grievance which alleged harassment involved a dispute between Ms. Van Biesbrouck and Mr. DaSilva about her taking vacation during a period between October 5 and 9, 1992. In brief, the dispute was over or not Ms. Van Biesbrouck had the approval of Mr. DaSilva to take vacation between October 5 and 9 of 1992. Mr. DaSilva was away from the office himself during this period of time on vacation, and when he returned the staff informed him that Ms. Van Biesbrouck was absent without leave. It was Ms. Van Biesbrouck’s view that she was taking “banked time” rather than vacation. Thus the issue had nothing to do with harassment on the basis of gender or disability.

The second grievance, which used the words “sexual harassment” was based on the Grievor’s view that she was treated differently from men in the office. An example given by Ms. Van Biesbrouck of being treated differently was that Mr. DaSilva would not discuss her health problems, but she claimed that he was willing to discuss health problems with male employees. Mr. DaSilva denied that he treats women differently to men. Ms. Van Biesbrouck acknowledged to Ms. Charlton that Mr. DaSilva got her a scooter with Employment Equity Program Funding to assist her in getting around the office. Under the grievance entitled “sexual harassment,” the report also refers to Ms. Van Biesbrouck’s complaints that her work schedule from 8:30am to 4:30pm is not convenient. Paratransit, which provides her transportation to and from work, can not accommodate her 8:30am start so she is at the office every morning by 8:00am. The report also notes that Ms. Van Biesbrouck had never asked Mr. DaSilva to change her work schedule to 8:00am to 4:00pm. The report concludes that “no facts were found to substantiate the sexual harassment allegations,” and “on Ms. Van Biesbrouck’s own evidence, Mr. DaSilva did not sexually harass her…”

Mr. DaSilva testified that he was not informed of the Union’s view that this grievance was not a “true” sexual harassment grievance. He was not informed or given information about the investigation. Mr. DaSilva was not provided with any information of the allegations against him until January 26, 1993. Even during his interview with Ms. Charlton on January 26, 1993, he was not provided with particulars of complaints against him. He stated that he just answered her questions. He had no idea what the sexual harassment allegations were. Mr. DaSilva was never informed that he could have someone attend with him at the January 26, 1993 meeting. He denied that when he met with Mr. Mee he was shown the investigator’s report and stated that Mr. Mee told him to apply for it under the Freedom of Information Act, (FOIA) which he subsequently did. Mr. Mee confirmed in a letter to Mr. DaSilva that he could seek to get it through FOIA.

THE IMPACT OF THE INVESTIGATION ON THE GRIEVOR

While these grievances were pending against Mr. DaSilva, the Claims Payment Operations Unit was going through management restructuring. As part of this process, all management employees were required to apply for new positions in early December 1992.

Mr. DaSilva said that he was devastated by the charges of sexual harassment against him. He stated that it was embarrassing in the extreme, that he felt that all eyes were upon him, especially the female workers in the office. Even though he knew he was innocent, he had a profound feeling of shame. He felt that he was unable to compete for his job in December of 1992 and he did not. A new Operations Manager, Mr. Jim Giddings, was appointed. Mr. DaSilva was directed to assist Mr. Giddings. When asked whether or not Mr. DaSilva did any productive work after this appointment, Mr. Mee said that he did not know. He said that Mr. DaSilva was erratic and that Mr. Mee was concerned for the safety of staff. Mr. DaSilva went on sick leave in April of 1993, although he came in periodically, to pick up mail. Mr. Mee testified that his appearances were upsetting to the staff, so he called Mr. DaSilva and told him not to come into the office since he was on sick leave. In response to this call, Mr. DaSilva wrote to Ms. Mahood confirming that he had called by Mr. Mee on June 7, 1993 and advised not to go to the office. Mr. DaSilva also confirmed in a letter to Ms. Mahood that he was returning his identification card which was an electronic security pass. This letter was copied to Mr. Mee.

Mr. DaSilva’s testified that the stress of being accused of sexual harassment eventually led to health problems. In late November or early December 1993 he was referred to a psychiatrist, Dr. Taitt, M.D., M.R.C. Psych. (G.B.). The first appointment with Dr. Taitt was in January of 1994, and he continued to see him until July 1994. Dr. Taitt stated that Dr. Butchey, Mr. DaSilva’s physician, had referred him to the psychiatrist with the diagnosis of “severe adjustment disorder with depressed mood.” Dr. Taitt made his own diagnosis of “Adjustment Disorder with mixed emotional features.” Mr. DaSilva‘s attendance record had always been excellent before the Van Biesbrouck grievances were filed, and it was not until six months after the complaints that he went on sick leave. He was unwell because of the stress of the grievances and unable to work as a result in his own view. He was on sick leave between April 2, 1993 and June 30, 1994. He acknowledged that in 1992 his son died and that this was stressful. There was no evidence provided about his attendance then. Mr. Mee testified that he thought the Van Biesbrouck complaints were the “final straw.” His view, as noted earlier, was that Mr. DaSilva was erratic and hostile to him, and clearly very disturbed. Mr. Mee was candid about acknowledging that Mr. DaSilva was not well. Even before he went on sick leave, Mr. Mee was not sure if he was doing any productive work.

SUBMISSION OF THE GREIVOR

Mr. DaSilva argued that the Employer failed in its duty to be fair to him in investigating Ms. Van Biesbrouck's grievances against him. In summary, he argued that the Employer failed to act properly in not investigating the matter promptly. He argued that the delay between the complaint and the resolution which was the withdrawal of the grievances was unreasonable. He argued further that the employer failed to keep him informed, denied him access to the investigator's report, and failed to refer the complaint in the first place to the WDHP unit. He argued further that choosing an investigator who was within the division he worked in, showed an insensitivity about absence of bias in an investigator. He argued that it was because of Mr. Mee's close working relationship with the investigator that Ms. Charlton was necessarily put in an awkward position.

Mr. DaSilva argued that the failure to act promptly caused him severe psychological stress and led to his sick leave. He stated that being accused of sexual harassment had a devastating personal effect on him when he knew he was innocent of the charges. He argued in conclusion that had the situation been dealt with promptly he would not have had to go through five and a half months of the stress of being stigmatized by the accusation of sexual harassment.

Mr. DaSilva argued that much of Mr. Mee's testimony was not true. Mr. Mee's evidence is that he met and consulted with Mr. DaSilva and kept him informed of what was happening in the investigation. Mr. DaSilva denied that this was true. He argued that I should prefer his evidence over Mr. Mee's because of the contradictions within Mr. Mee's own evidence. For example he argued that while Mr. Mee's evidence was that Mr. DaSilva was an excellent employee that he would recommend to others to hire today, he also described him as “erratic and someone his staff were fearful of.” He also asked me to consider the differences between what Ms. Charlton recorded in her report and Mr. Mee's evidence. For example, Ms. Charlton's report states that she interviewed Mr. Mee and he made comments about Mr. DaSilva having a superior attitude. Mr. Mee said that he wasn't interviewed and he only said positive things about Mr. DaSilva.

Should I find that the Employer has breached its duty of fairness to Mr. DaSilva, he asked that this Board order the Employer to pay him all lost benefits and income between the period of April 1, 1993 to June 30, 1994, with interest from January 1995, thus amending his original request for remedy.

SUBMISSION OF THE EMPLOYER

Ms. Brossard argued on behalf of the Employer that this Board must address two issues. The first was whether the Employer mishandled the grievance and the second was the connection between Mr. DaSilva' s illness and the actions --the “mishandling” of the Employer. Counsel argued that the grievance was handled properly and there is no causal connection between the handling of the grievance and Mr. DaSilva's losses. Ms. Brossard argued that the period of time in question is from the date of the filing of the grievances, October 15, 1992 and the delivery of the investigator's report which was approximately April 7, 1993. She argued that from the outset Mr. Mee acted decisively. She argued that the delay was not unreasonable and that there was no failure on management's part that caused the delay. Ms. Brossard argued that I should prefer the evidence of Mr. Mee rather than the evidence recorded in the investigator's report and that the difference could be explained if Ms. Charlton indicated in November that she would not be able to do the report until early December. The delay that was occasioned in December was because of Ms. Charlton’s accident. She argued further that Mr. Mee was trying to get a speedy investigation and that the delay was not inordinate. Mr. DaSilva was note suspended or demoted at end of this investigation.

As to the apparent discrepancies between the evidence found in the report, and Mr. Mee's testimony, Ms. Brossard argued that I should prefer Mr. Mee's evidence. Since Mr. Mee testified that he gave only positive evidence to Ms. Charlton regarding Mr. DaSilva, that is what I should accept, even though the report indicates otherwise.

In response to Mr. DaSilva's allegation that he was not kept informed, Ms. Brossard argued that when Mr. Mee called the Grievor on one occasion, Mr. DaSilva was curt with Mr. Mee. I should accept the evidence that Mr. Mee attempted but never reached Mr. DaSilva after receiving the report in April. She argued further that even if Mr. Mee had no right to deny giving the report to Mr. DaSilva, he was merely being cautious in not handing it over to the Grievor.

Ms. Brossard argued that the WDHP was complainant-driven, that is, that it is up to the person making the complaint to decide to go through the WDHP process. Thus the Ministry argued that this policy did not apply here, and that there was no other policy in place. In any case, she argued, the Employer did follow the basic tenents of the policy, which was to give a speedy investigation and to honour the right of the accused to be informed. Counsel acknowledged that the particulars were not given to Mr. DaSilva until January 26, 1993 but all the critical allegations were put to him at this point. She argued that the Employer's duty was to give the accused employee a chance to respond after being given the particulars and Mr. DaSilva was given those particulars on January 26, 1993.

With regard to Mr. DaSilva's claim for damages, Ms. Brossard argued that there is no evidence to support his claim. She argued that many other stressors were occurring including the restructuring of the unit. The damages for lost wages and benefits when Mr. DaSilva went on sick Ieave are too remote. Mr. Brossard argued that I would have to find that the handling was the cause of the stress and not the grievance itself. She argued further that the tests that I must address is whether there is a direct causal connection between the wrongdoing of the Employer and the loss of the Employee. In summary, she argued that the damages must not be remote; they must be provable and the Grievor has a duty to mitigate any loss.

Subsequent to the hearing into this matter I received written submissions from both parties. Ms. Brossard confirmed that number of the Grievor's sick leave days as 209. I also received the Keeso, 0009/88 (Watters) case on November 1996, which she argued may be of assistance in rendering my decision. In late November Mr. DaSilva made a submission arguing that Keeso was of no assistance as it was distinguishable from his case.

DECISION

There are some significant differences in the evidence presented by the Employer and the Grievor. The Grievor has argued that I should prefer his evidence to Mr. Mee's, given the inconsistencies and contradictions in Mr. Mee's. After careful review of my notes I have decided that I must prefer Mr. DaSilva's evidence over Mr. Mee's when there is a contradiction, since Mr. Mee's evidence has contradictions even within his own testimony. Perhaps the contradictions or differences occur because memory tends to fade and these events were not as significant to Mr. Mee as they were for Mr. DaSilva. There are also differences in Mr. Mee's evidence if compared to the report, where the report accords with Mr. DaSilva's evidence.

One example of Mr. Mee's evidence being contrary to the report and inconsistent between his examination-in-chief and cross-examination is the issue of whether he involved himself in the investigation by making comments to the investigator. Early in Mr. Mee's evidence he said that he only discussed process with the investigator. He said he was taking a “hands off' approach to the investigation. He clearly did not want to be seen as interfering with an investigation. However, the report records comments regarding Mr. DaSilva by Mr. Mee that were negative. In response to being questioned on the report, Mr. Mee said in evidence that he only made favourable comments. Whether I find that he made favourable or negative comments about Mr. DaSilva does not matter; the point is that he did not just discuss process as his evidence in chief indicates. Mr. Mee contradicts his earlier evidence and says he made only favourable remarks about Mr. DaSilva. Thus I have decided that Mr. Mee's evidence, where it differs from Mr. DaSilva's, is less reliable, and where I have needed to make a finding between the two I have preferred Mr. DaSilva's.

The first issue to be decided in this case is whether the Employer breached its duty to be fair to the Grievor in the investigation of a sexual harassment complaint brought against him. Whether or not the Employer has been fair, depends on the facts taken as a whole, according to the Masters decision.

The Employer argued that there was no obligation to follow the requirements of the WDHP-policy since it is complainant-driven. Counsel argued further that the Employer followed the principles of fairness embodied in the policy in the process they used. I disagree. Having carefully reviewed and considered the evidence presented, I have decided that the Employer has breached its duty to be fair to Mr. DaSilva in investigating the sexual harassment and harassment complaints against him.

It is difficult to investigate sexual harassment. The employer must balance the interests of the accused with the accuser. It is probably impossible to get it perfectly right. One of the following problems might not be enough to find that the process was unfair to an accused employee, but taken as a whole I am convinced that Mr. DaSilva was not treated with fairness. In fact, he was treated very unfairly. In summary, the reasons for finding such are:

1. that the delay was excessive - given the facts behind the allegations,

2. that Mr. DaSilva, by admission of the Employer, was not informed of the particulars of the allegations until three months after the complaint against him was made,

3. that Mr. DaSilva was not advised that he could have anyone with him during the investigation, aside from Mr. Mee's advice to hire a lawyer, made on October 15, 1992, and

4. that Mr. DaSilva was not kept informed at all or in a timely way about the progress of the investigation.

The delay in investigating the Van Biesbrouck grievances was unreasonable. It is clear that in some complex cases delay is unavoidable. When a sexual harassment complaint involves incidents of sexual harassment which would also be considered sexual assault under the Criminal Code, and which might involve multiple incidents, occurring in the past over a number of years then although every effort to avoid delay may be made it is not surprising if the investigation takes months. However, this was not the case here. Mr. Mee by his own evidence, did not ask what was behind the complaint. He says he took a “hands-off' approach and though lie was shocked, “he took it at face value.”'

But he had a duty as a manager to find out what was behind the complaint so he could make a reasoned decision as to how it should be investigated. There is no obligation under the OPSEU collective agreement to do an investigation and the evidence was that Ms. Van Biesbrouck did not wish to file a complaint with the WDHP Unit. If the allegation had been of the sexual assault variety, Mr. Mee would have had a duty to protect other employees from the accused by removing him from the work with pay - a common practice with this employer.

Had Mr. Mee asked what was behind the complaint he would have learned that Ms. Van Biesbrouck had a complaint about banked leave and vacation. He might have found out that Ms. Van Biesbrouck’s complaint about Mr. DaSilva was that he wouldn’t listen to her regarding her health, even though Mr. DaSilva had taken steps to ensure that a mobility scooter was provided to her as an accommodation. He might have found out what the investigation did find out, which was that Mr. DaSilva did not sexually harass Ms. Van Biesbrouck, that her concerns about her scheduled work were not even articulated to Mr. DaSilva. Even if he felt he could not ask much, he could have found out enough to consider what kind of an investigation was appropriate.

At the very least, especially given the office was in the midst of downsizing, Mr. Mee needed to move quickly to have the matter investigated. The investigation that was done was not a lengthy or involved one. As noted in the report, Ms. Charlton interviewed three people-Ms. Van Biesbrouck, Mr. DaSilva and Mr. Mee. The report notes that she followed up with office staff to clarify office procedures on banked time and vacation approval. This kind of investigation does not require months. Someone within the Ministry needed to interview the Grievor and Mr. DaSilva promptly. Although there was an unforeseen delay when Ms. Charlton was injured in December, by this point the Employer had already exceeded a reasonable period of time to investigate, given the substance behind the complaint.

In addition to the delay, the most fundamental flaw in the process is that Mr. DaSilva was not given particulars of the complaint against him; on his evidence he never received particulars. The Employer admitted that no particulars were given until the January 26, 1993 interview by Ms. Charlton. Mr. DaSilva knew he was innocent, but he had no idea of' what he was accused except “sexual harassment,” which as the courts have recognized carries a stigma with the accusation which can ruin a reputation. Mr. Mee gave evidence about the rumour and insinuations flying around the office. Mr. DaSilva said that he felt shunned by Mr. Mee and most of the office staff. A delay of three months in providing particulars is a breach of the duty of fairness to an accused. Further, on January 26, 1992 when Mr. DaSilva was questioned by the investigator without any advance knowledge of the details of the accusations against him, he was not accorded principles of natural justice. To be clear, Mr. DaSilva does not complain about inadequate particulars: he received no particulars, by the Employer's account, until three months after the complaints against him were filed.

Because the Employer did not follow any written policy or procedure in investigating these complaints, other problems occurred which made the process unfair. Mr. Mee said that he was not sure if Ms. Charlton had had any training to do sexual harassment investigations. This should be established before someone is chosen to investigate. Mr. DaSilva was not told that he could have someone to accompany him at the investigation, which was clearly not fair to him. Mr. Mee became a witness in the investigation that he ordered, and that he might have had to act on had there been a finding that Mr. DaSilva had sexually harassed Ms. Van Biesbrouck.

Finally, I accept Mr. DaSilva's evidence that he was not kept informed of the progress of the investigation, even once it began in January 1993. Even when the decision to withdraw the Van Biesbrouck grievances was made on April 21, 1993 at the stage 2 meeting, the Employer took until May 7, 1993 to inform Mr. DaSilva in writing. By this point Mr. DaSilva was on sick leave.

There was no evidence to support the argument made by Mr. DaSilva that Ms. Charlton was biased. And while I am of the view that Mr. DaSilva was entitled to have a copy of the investigation report, since the Employer did not act on the report with respect to Mr. DaSilva, I am not persuaded that denying access amounted to a breach of fairness in this case.

The Employer Counsel argued that there was no policy that could be followed to guide the Employer in investigating the complaints. I am not convinced that the WDHP policy did not apply. Counsel confirmed after the preliminary hearing in this matter that the policy was in force in October 1992, but that training of investigators had not occurred at MOH. The Directive notes that it applies to all ministries, and to all employees appointed under the Public Service Act. It applies to, inter alia, employment-related discrimination and harassment.

The guideline lists “formal resolution” options as including filing a grievance under the collective agreement for bargaining unit members. Thus although the WDHP Unit does not have to investigate it would seem that the Employer is bound to follow the requirements of the directive. I am of the view that the Employer ought to have followed the WDHP policy.

However, I do not base my decision on the Employer’s failure to follow the WDHP policy. The court in Masters indicated that whatever process was chosen, it must satisfy the duty to be fair to an accused employee. And I am of the view that the process followed here was not fair in Mr. DaSilva’s case. The general delay in investigating the Van Biesbrouck complaint, the delay in giving particulars to Mr. DaSilva and the failure to keep him informed of the process or his rights - all of these factors amount to a breach of the duty of fairness to the Grievor. The question now is whether this breach led to certain damages claimed by Mr. DaSilva.

DAMAGES

Counsel for the Employer argued that even if the Van Biesbrouck grievance was “mishandled,” there was no causal connection between the Employer's conduct and Mr. DaSilva's losses. She argued that there was no evidence to support his claim. I disagree.

This is a somewhat unusual case. The Employer's own witness (the only one) admitted that he thought the sexual harassment grievance against Mr. DaSilva was the “last straw.” He considered Mr. DaSilva to be disturbed and erratic before he went on sick leave. He said he didn't know if Mr. DaSilva was doing any productive work after January 1993. I was left with an impression from Mr. Mee that Mr. DaSilva became increasingly hostile and disturbed as the Van Biesbrouck grievance dragged on.

Mr. DaSilva says that he was mortified and humiliated by the accusation. By the time five and a half months had passed he was ill. He went on sick leave on April 1, 1993. He didn't break down until it was almost over. Mr. DaSilva said that after five and a half months of what was unnecessary stress, he became ill. The illness subsequently confirmed by a physician and Mr. DaSilva was on sick leave from April 1, 1993 to June 1994. There was no evidence by the Employer to contradict Mr. DaSilva's that he had an excellent attendance record until the stress of the unresolved sexual harassment complaint against him made him ill and he had to go on sick leave.

Thus, given the Employer's recognition that the sexual harassment complaint was “the last straw,” Mr. DaSilva's evidence that he became ill after five months of waiting for the complaint to be resolved and the medical evidence which confirmed he was ill, I find on the balance of probabilities that it was the mishandling of the investigation - all the factors noted earlier in the decision – that lead to Mr. DaSilva’s sick leave and therefore, his losses. Accordingly he should be compensated.

For all the reasons above, the grievance is granted and I hereby order that Mr. DaSilva should be compensated for his losses between April 1, 1993 and June 30, 1994. Post judgment interest is granted at the rate set in the Courts of Justice Act, and shall begin to accrue two weeks after the date of this decision. I shall remain seized in the event of any difficulties in the implementation of this award.

Dated at Toronto this 23rd day of December, 1997.