P/0061/95, P/0015/96

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

R. Di Gaetano

Grievor

• and -

The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing)

Employer

BEFORE

Sig M. Walter

Vice-Chair

FOR THE GRIEVOR

Benard Hanson, Counsel Cavalluzzo Hayes Shilton McIntyre & Cornish Barristers and Solicitors

FOR THE EMPLOYER

Brian Loewen, Counsel Legal Services Branch Management Board Secretariat

HEARING

April 9, 1997, April 10, 1997, October 6, 1997, October 7, 1997, October 9, 1997, October 14, 1997, October 30, 1997, December 16, 1997, May 8, 1998, May 29, 1998, September 10, 1998, September 11, 1998, October 30, 1998 and November 25, 1998

INTERIM AWARD

The matter before the Board arises out of numerous written grievances filed against the Ministry of Municipal Affairs and Housing by Mr. Ralph DiGaetano, the grievor. It should be noted that the Employer’s and the grievor’s counsel mutually agreed to bifurcate the hearing. No arguments were heard relating to the question of remedy. Accordingly, the Board will confine its decision to determining whether Mr. DiGaetano’s grievances are upheld or dismissed. The arguments relating to remedy are deferred, pending the outcome of this award.

The grievances were precipitated by unfounded allegations of harassment advanced by Ms. Cynthia Bird against Mr. DiGaetano. An investigation of Ms. Bird’s allegations by a Workplace Discrimination and Harassment Prevention investigator showed that the complainant lacked credibility and that her charges were without foundation. The matter before the Board deals with Mr. DiGaetano’s complaints relating to how his Employer allegedly mishandled the matter.

The grievor’s formal complaints are set out as follows (Exhibit E-1, Tab 15):

“February 29, 1996

Re: Grievance #1

Dear Mr. Arlani,

In accordance with Public Service Act R.R.O. 1990, Reg.. 977, s. 44, 45, 46, I grieve unfair working conditions and terms of employment with respect to:

• harassment and discriminatory practices by Ministry management

• unequal treatment and gross mismanagement

• wilful damage to my reputation by Ministry management

Settlement

1. Harassment and unfair treatment to cease and desist.

2. Remove all information and records relating to harassment from all files.

3. Returned to my position free of threats and reprisals.

4. Written letter of apology to my satisfaction.

5. Measures taken to restore my integrity in the workplace and public eye.

6. $2,000,000 after taxes and costs. “

“February 29, 1996

Re: Grievance #2

Dear Mr. Arlani,

In accordance with Public Service Act R.R.O. 1990, Reg.. 977, s. 44, 45, 46, I grieve unfair working conditions and terms of employment with respect to:

• Collusion by Mr. Ali Arlani, Ms. Sue McDonald and Ms. Ann Borooah with respect to WDHP investigation filed against me.

Settlement

1. Harassment and unfair treatment to cease and desist.

2. Remove all information and records relating to harassment from all files.

3. Returned to my position free of threats and reprisals.

4. Written letter of apology to my satisfaction.

5. Measures taken to restore my integrity in the workplace and public eye.

6. $2,000,000 after taxes and costs.“

“February 29, 1996

Re: Grievance #3

Dear Mr. Arlani,

In accordance with Public Service Act R.R.O. 1990, Reg.. 977, s. 44, 45, 46, I grieve unfair working conditions and terms of employment with respect to:

• violation of Charter of Human Rights by WDHP investigation

Settlement

1. Written letter of apology to my satisfaction.

2. Measures taken to restore my integrity in the workplace and public eye.

3. $1,000,000 after taxes and costs.

“March 8, 1996

Re: Grievance #4

Dear Mr. Arlani,

In accordance with Public Service Act R.R.O. 1990, Reg.. 977, s. 44, 45, 46, I grieve unfair working conditions and terms of employment with respect to:

• results of investigation presented to me on March 1, 1996 by Ms. Sandra Carnegie-Douglas and Ms. Peggy Molloy of WDHP

• malicious misrepresentations and untruths by Ms. Cynthia Bird in her deposition

• misrepresentations of my character by Ministry management

• withholding true character profiles of Ms. Bird by Ministry management

• lack of my participation in investigation

• unfair and inconsistent investigation practices

• potential witness intimidated from participating in investigation for fear of reprisals from Ministry management

• withholding of evidence by Ministry management

• completion of Investigation despite Ministry knowledge of my ongoing appeal to Information and Privacy Commissioner for additional evidence

• refusal of Ministry to provide documentation substantiating the legitimacy of investigation - signed complaint by Ms. Bird or signed request for investigation by Ms. Ann Borooah; signed authorization for investigation by Mr. Daniel Burns

Settlement

1. Remove all WDHP information and reports of alleged harassment from all files.

2. Assurance that Ms. Bird and/or the Ministry will not bring this matter up again in the future.

3. Written letter of apology to my satisfaction.

4. Measures taken to restore my integrity in the workplace and public eye.

5. $1,000,000 after taxes and costs.”

“April 23, 1996

Re: Grievance #5

Dear Mr. Burns,

In accordance with the Public Service Act R.R.O. 1990, Reg.. 977, s. 44, 45, 46, I grieve unfair working conditions and terms of employment with respect to Deputy Minister Daniel Burn’s letter of April 15, 1996 and attached WDHP Investigation Report, file #MH021, dated April 1, 1996 concerning:

• WDHP report as unfair and incomplete

• WDHP report containing frivolous allegations

• WDHP report containing malicious misrepresentations and untruths by complainant

• Deputy Minister’s conclusion and decision

Settlement

1. Shred all WDHP information and reports of alleged harassment from all files.

2. No disciplinary action to be taken against me by OPS senior management.

3. Assurances that complainant and/or OPS senior management will not bring this matter up again in the future.

4. Measures taken to ensure that complainant and/or OPS senior management do not engage in any future reprisals or conspiracies against me.

5. Written a letter of apology to my satisfaction.

6. Measures taken to restore my integrity in the workplace and public eye.

7. $600,000 after taxes and costs.”

“April 23, 1996

Re: Grievance #6

Dear Mr. Burns,

In accordance with the Public Service Act R.R.O. 1990, Reg.. 977, s. 44, 45, 46, I grieve unfair working conditions and terms of employment with respect to Deputy Minister Daniel Burn’s letter of April 15, 1996 concerning WDHP investigations against Ms. Cynthia Bird, Ms. Sue McDonald, Ms. Ann Borooah and:

• closure of WDHP investigations against Ms. Bird, Ms. McDonald and Ms. Borooah

• failure to conduct impartial and thorough WDHP investigation against Ms. Bird, Ms. McDonald and Ms. Borooah

• failure of Deputy Minister to inform me of authorized WDHP investigations against Ms. Bird, Ms. McDonald and Ms. Borooah

• gross misrepresentation by Deputy Minister Daniel Burns that I filed complaints against Ms. Bird and Ms. McDonald subsequent to the WDHP investigation made against me

Settlement

1. Complete WDHP investigations against Ms. Bird Ms. McDonald and Ms. Borooah with WDHP investigators from Management Board Secretariat.

2. Assurances from Management Board Secretariat that MMAH witnesses giving testimony will be protected from any threats or reprisals by Ms. Bird or OPS senior management.

3. Measures taken to ensure that Ms. Bird and/or OPS senior management do not engage in any future reprisals or conspiracies against me.

4. Written letter of apology to my satisfaction.

5. Measures taken to restore my integrity in the workplace and public eye.

6. $300,000 dollars after taxes and costs.”

Counsel for the grievor submits that the Employer has a requirement for expedition and full disclosure of information and that there was a necessity to respond to the allegations made against the grievor. Supervisors must maintain objectivity and impartiality and must assess, to some minimum degree, the accuracy of the allegations made.

The Workplace Discrimination And Harassment Prevention (WDHP) Guidelines document constitutes a working condition applicable to all employees in all Ministries appointed under the Public Service Act. There is no doubt that this working condition has application to the grievor. It is argued that the Board has jurisdiction to hear a grievance that deals with working conditions (see: Reg. 977 ss. 34(1), 37(2) & 38). The WDHP guidelines specify (Ref. Exhibit G-1, Tab 7):

“APPLICATION AND SCOPE

This Directive applies to:

• all employees both classified and unclassified, including interns, summer students and co-op students appointed under the Public Service Act.”

The WDHP directives and guidelines further set out the obligations of Managers and Supervisors at p. D-7-1-5 and p. G-7-1-5 respectively (Ref. Exhibit G-1, Tab 7):

(Exhibit G-1, Tab 7, p. D-7-1-5)

“Managers and Supervisors

Managers and supervisors are responsible for:

• . . . ensuring compliance with this directive:

• ensuring that employees are aware of their rights and responsibilities under this directive and the mechanism in place to investigate and resolve discrimination or harassment complaints:

• advising employees not to subject any person who is a party to a complaint - complainant, witness or alleged offender - to any reprisals:

• initiating, in consultation with appropriate individuals, remedial procedures with respect to discrimination, harassment or reprisal as quickly as possible upon becoming aware of it, whether or not a complaint has been filed:

• addressing and resolving informal complaints:

• protecting the confidentiality of all parties and witnesses to the complaint to the greatest degree possible: {see Confidentiality and Data Collection}

• co-operating with persons who investigate complaints:

• imposing penalties upon offenders in accordance with the directive and guideline and with ministry guidelines for delegation of disciplinary authority.

(Exhibit G-1, Tab 7, p. G-7-1-5)

Manager’s or supervisor’s involvement

A manager responding to an informal complaint should consult others, such as advisers, investigators, human resources staff, or the Discrimination/Harassment Prevention Unit before handling an issue, and particularly under the following circumstances:

• the allegations indicate a relatively serious form of harassment which merits formal, not informal intervention:

• there is more than one aggrieved person, according to the complainant’s allegations:

• the alleged offender is disputing to a significant extent the complainant’s version of what happened.

Although a full investigation is normally conducted only for formal complaints, a manager or supervisor may request that an informal complaint be referred to an investigator.”

Directives are mandatory and fundamental to the application of the foregoing policies. All of the witnesses understood that the WDHP policy contained a "due process element". One of the elements is expedition, since delay can and does prejudice a party’s ability to respond to allegations made against them. The WDHP Directives and Policies have this fundamental procedure enshrined in them.

The Board can infer from the language in the WDHP directives, and the evidence, that there is a substantive element. Sue McDonald, Manager, Housing Development and Buildings Branch, and Ali Arlani, also a Manager, Housing Development and Buildings Branch, expressed the view that the mere fact that allegations are made, can taint an employee's reputation. There is no dispute that on August 17, 1995, Mr. Arlani said that "a thing like this could ruin careers". The longer allegations are allowed to continue without being dealt with in accordance with the WDHP directives, the greater the impact there is on an employee's career. The Board should come to no other conclusion than the employer failed to act expeditiously.

Ms. McDonald's evidence was that in the fall of 1994 she said Cynthia Bird stopped by her office five or six times, complaining of the grievor's harassment and conduct. Specifically, Ms. Bird claimed the grievor stopped by her office, brought her gifts, and was also in the subway in locations she had not previously seen him at. Ms. McDonald allegedly said she gave Ms. Bird options each time she spoke with her. Ms. McDonald said some of the options included talking to the grievor, or she could discuss the matter with WDHP or the grievor’s manager, Mr. Arlani.

Over the fall of 1994, none of the options Ms. McDonald spoke of were taken up by Ms. Bird because she was uncomfortable with them. She wanted to keep things private. In the fall of 1994, Ms. Bird was no longer an employee of the Branch. She had been successful in a competition earlier in 1994 and was employed in Social Housing. The evidence of Ann Borooah, Director, Housing Development and Buildings branch, was that Ms. Bird returned to the Branch November 21, 1994 on a term contract. Ms. Bird was back in the Branch from November 21, 1994 to March 1995, during which time Ms. McDonald said there were no further complaints about the grievor.

However, during the period March 1995, to August 1995, Ms. McDonald said that Ms. Bird again discussed the situation with her six times over that period. Ms. Bird’s complaints included seeing the grievor in the subway, that he had passed by her office, and that he had been seen passing by a Section meeting. Again, Ms. McDonald said, on each of these five to six occasions she presented options to Ms. Bird, as she had done in the past. She suggested that Ms. Bird go to the police to register a complaint. Ms. McDonald's testimony was that Ms. Bird rejected all of the options because she wanted to keep the matter private, and she wanted to resolve it informally. On August 9, 1995, Ms. Bird wrote the following letter to Mr. DiGaetano (Exhibit E-1, Tab 1):

“I have told you on numerous occasions since June of 1994 that I do not wish to associate with you in any way. I told you on November 25, 1994 that you were harassing me. A told you on December 2, 1994 that I do not wish to speak to you at all. I am completely fed up with your behaviour. I will no longer accept your appearing at Queen's Park subway stop in the morning - you use to take another route to work - go back to that route.

Although you have been harassing me for the past 13 months, I didn't tell Sue McDonald about it until about eight months ago. I have been reluctant to take any formal action because I am on contract and these incidents are personally and professionally embarrassing to me. However, Sue and I have decided that if I continue to see you at Queen's Park subway we will take one of three actions: 1) either Sue or myself will contact your manager Ali Arlani and explain what has been happening over the last 13 months; 2) I will file a complaint with the Metro Regional Police - they have informed me that they will charge you with harassment if I file a complaint; or 3) I will proceed with both actions.

I trust that you will understand the consequences of this formal letter of intent. To recap, I believed that you have been harassing me since June of 1994. If your behaviour continues, I will take one of the actions outlined above.

Do not attempt to use this letter as an excuse to contact me. I have made every attempt to tell you verbally that I want your behaviour to stop and I will refuse to talk to you."

Ms. McDonald said Ms. Bird was feeling a lot more agitated. Ms. Bird decided she wanted to try one more informal way to solve the matter by writing the letter (Exhibit E-1, Tab 1) to Mr. DiGaetano. Mr. DiGaetano testified that the first time he heard of any allegations was when it was brought to his attention at a meeting with Mr. Arlani on August 17, 1995.

On the facts of Ms. McDonald's testimony, there is no dispute that a senior member of management had knowledge of the allegations. Ms. McDonald had 12 to 13 discussions with Ms. Bird and was provided with a copy of Ms. Bird’s personal log. Ms. McDonald had detailed knowledge of all the allegations that were ultimately dealt with by Peggy Molloy, Workplace Discrimination/Harassment Prevention Investigator/Trainer, in her WDHP investigation report (Ref. Exhibit G-1, Tab 55). The grievor’s counsel argued that Ms. McDonald had knowledge of the circumstance for a year and did nothing.

There is nothing in the WDHP guidelines that “qualified” expedition was intended in the manner Ms. McDonald suggests. Even if she was correct, where over the 12 month period was the balance between the employee's wishes and the grievor's rights? Ms. McDonald had no answer.

It was argued that Ms. Bird’s wishes were bogus and Ms. McDonald knew that. One of the options that Ms. McDonald came up with was to approach the grievor to let him know that complaints were made against him. The grievor is the other half of the complaint. Counsel asked, where is Ms. McDonald’s concern when it comes to the grievor’s complaint? The grievor's interest in privacy would be as strong as Ms. Bird’s. Ms. McDonald didn't disagree. There was no reason for her not to inform the grievor of Ms. Bird’s complaint. Ms. McDonald had knowledge that Ms. Bird had already availed herself of the opportunity to speak to the police and to individuals at Management Board Secretariat.

After her August 9, 1995 letter to the grievor, Ms. Bird was hopelessly contradictory. Allegedly she still had a strong interest in privacy. That is the reason why she wrote the letter to Mr. DiGaetano setting out her complaint. On August 21, 1995 Ms. McDonald met with Peggy Molloy and Ms. Carnegie-Douglas, WDHP Investigator, and reviewed the various allegations at length. The Board is again asked to note that Ms. McDonald said, on August 21, 1995, that she had Ms. Bird’s log with her. She showed Ms. Molloy and Ms. Carnegie-Douglas the log. Ms. McDonald made certain individuals in the Ministry aware of the details of the allegations against the grievor.

Under cross-examination, Ms. McDonald said "Ms. Bird was OK with Ms. McDonald advising everyone who had to know, except for the Director, Ms. Borooah". Based on Ms. McDonald's knowledge, she ought to have known that the privacy concern of Ms. Bird was simply there to suit her own interests. Ms. McDonald ought to have consulted with WDHP, so she would know what to do. Ms. McDonald said she didn't consult anyone because Ms. Bird was talking to Management Board and to the police. Counsel argues that even if a complainant is getting independent advice, it should not relieve a Manager from doing the same in accordance with the WDHP guidelines. The rights of all employees, including the harasser, should be properly respected.

Ms. McDonald's conduct is an indication of her perception of impartiality. She had a blind spot. She took the view that if the victims' rights are protected, that's the end of the matter. It never occurred to Ms. McDonald to consult with WDHP to protect other people's rights. There is no question that delay prejudiced the grievor. An indication of this is the sorry state of the email review issue. Had Ms. McDonald acted with due dispatch, all the substantive evidence that cast doubt on Ms. Bird’s allegations would have been visible. Had this matter been dealt with promptly, the likelihood of an informal resolution would have been higher. Instead it dragged on. Ms. Bird went to the police, putting the grievor in a position where an informal resolution was prevented.

Fairness includes procedural fairness. The alleged harasser should be made fully aware of allegations, and only if you have such knowledge can you respond and properly prepare a defence. Counsel for the grievor asserts that Ms. McDonald breached the requirement to deal fairly with the grievor by:

• Having detailed information about the matter for over one year.

• Never advising the grievor.

• When she does take action through her involvement in the August 9, 1995 letter, she does so without giving the grievor the right to respond.

• Even though the August 9, 1995 letter is directed at the grievor, and even though the letter contemplates another step Ms. McDonald takes the additional step of advising the grievor's supervisor, Mr. Arlani. She did all that without advising the grievor of the allegations, or giving him the opportunity to respond.

Significantly, when one looks at Ms. Bird’s letter to the grievor setting out her complaint, she only refers to the subway incident. The letter is not full disclosure to all the allegations in the WDHP report.

Ostensibly, Mr. Arlani is the lead in the matter by agreement of Ms. McDonald. Even though he is the lead management person up to September 15, 1995 (when Ms. Borooah got involved) he's not really provided with any information from Ms. McDonald. She didn't give him details of the allegations, or the log.

Mr. Arlani saw his role as an informal problem solver. In so doing, he put himself in a position as the lead, and in reality, couldn’t provide the grievor with particulars of the allegations because he didn’t know them. He didn’t take the time to find out and he didn’t ask.

Mr. Arlani testified that on August 11, 1995 he met with Ms. Bird. He said his role was to ascertain whether the situation was unsafe or inappropriate. He did not describe his role as being investigative. His discussion with Ms. Bird surrounded the broad nature of her allegations and not the details. Mr. Arlani subsequently met with the grievor on August 17, 1995. The evidence showed Mr. DiGaetano was on vacation until August 14, 1995.

While meeting with Mr. Arlani on September 11, 1995, the grievor stated there was no substantial discussion of the allegation (subway incident) as described in Ms. Bird's August 9, 1995, letter. Mr. DiGaetano's position was that he had to retain legal counsel. Mr. Arlani concurred and indicated there would be no report to Human Resources until the grievor had the opportunity to consult with legal counsel. During the August 17, 1995 meeting, Mr. Arlani indicated that he had not personally seen Ms. Bird's August 9, 1995 letter. Mr. Arlani disputed this and denied that he told the grievor he had seen the letter.

Council for the grievor argued that when the grievor testified, he wasn't cross-examined. Therefore, the Board ought to disregard Mr. Arlani's testimony. The Board should prefer the evidence of the grievor, particularly because his evidence is founded on a better record, as indicated in Exhibit G-1, Tabs 11 and 13. In cross-examination, Mr. Arlani changed his mind again. He said he did not put the workplace allegations to the grievor. Counsel maintained that it doesn't matter whether Mr. Arlani was right or wrong, the bottom line is "there is no compliance with the duty". There is no assertion that all of the allegations were put to the grievor on August 17, 1995 by Mr. Arlani.

On August 28, 1995 Mr. DiGaetano met with Lise Moran and showed her Ms. Bird's August 9, 1995 letter and two letters dated August 17, 1995, from his former legal counsel, Mr. Glenn Peppiatt (see Exhibit E-1, Tabs 1, 2 &3). During the meeting the grievor requested information about the procedure needed to file a formal complaint against Ms. Bird and Ms. McDonald. Ms. Moran got back to the grievor and they again met on August 29, 1995. She indicated to him that he couldn't file a formal complaint until he discussed the matter with his Manager, Mr. Arlani. Mr. Arlani was on vacation until September 5, 1995.

Mr. DiGaetano requested full disclosure including restoration of emails. His position in this regard was confirmed by letter of October 17, 1995, to Mr. Daniel Burns, Deputy Minister, Ministry of Municipal Affairs and Housing, wherein he stated:

". . . I will cooperate fully with the investigation to bring any misconception about my conduct to rest. However, I must insist that email messages exchanged between Ms. Bird and myself between July and August 1994 are restored in my possession as evidence in my defence before I participate in the investigation. The Freedom of Information and Protection of Privacy Section has been anything but helpful and seems to be deliberately using stonewalling tactics by ignoring the requests I have made.

If you support basic fundamental rights such as protocol, fairness and justice through the directive of the OPS policy on discrimination and harassment then you must condone an investigation into management's handling of this matter and instruct that the email messages be restored. I am confident that the WDHP investigation and your review of this case will restore my faith in working for the Ontario Public Service. . . "

The grievor again met Mr. Arlani on September 8, 1995 at which meeting Mr. Arlani stated there were to be no more emails because of confidentiality concerns. It was at the September 8, 1995 meeting that Mr. Arlani raised an additional allegation, beyond the subway incident, indicating that the grievor had allegedly been asking Ms. Bird out since January 1995. The grievor said he reiterated that that was why he requested full disclosure of the allegations in writing.

The next meeting between the grievor and Mr. Arlani occurred on September 11, 1995. The grievor said that between September 7, 1995 and September 11, 1995, Mr. Arlani did not respond to his request for full disclosure of the charges against him. Mr. DiGaetano wrote an email to Mr. Arlani on September 7, 1995, requesting full disclosure (Exhibit G-1, Tab 13):

"Both my legal adviser and Ms. Lise Moran had instructed me to meet with you for the purposes of completing your report to Human Resources.

I am requesting a copy of all statements (relating to me) that were made to you in this matter so that I can properly address the complaint (s).

Furthermore, I am requesting that Ms. Lise Moran of Human Resources be present when we meet."

Mr. Arlani does not agree that he failed to respond to Mr. DiGaetano. However, Mr. Arlani confirmed that he received the grievor's email and said he took no action. Mr. Arlani gave the grievor only the general allegations relating to the subway incident and the assertion that the grievor asked Ms. Bird out. Counsel argued that no details, times or places where disclosed.

September 11, 1995 is the last occasion on which the grievor met with anyone from management before a request was made for a formal investigation regarding workplace harassment. The grievor's Counsel referred the Board to a memorandum written by Ms. Borooah to Ms. Peggy Molloy on September 22, 1995 (Exhibit E-one, Tab 4):

"Re: Formal Request for Investigation Regarding Workplace Harassment

I would like to request that an informal complaint lodged by Ms. Cynthia Bird be referred to the Workplace Harassment Prevention Unit for a full investigation.

This request is based upon several factors. First, there does not seem to be any way to resolve the matter informally to the satisfaction of the complainant. Secondly, another incident involving the alleged offender has occurred previously; however, the matter was dealt with informally at that time and no report appears to be on file in the Ministry.

The complaint hinges on Ms. Bird's allegation that, since June, 1994, she indicated to Mr. diGaetano (sic) that she did not wish to associate with him in any way. Her allegation is that, despite repeated verbal messages to Mr. di Gaetano (sic) to leave her alone, he followed her to work on numerous occasions, waited for her in public places, came to her office uninvited, passed by meetings she was in many times for no apparent reason, invited her to social activities and refused to acknowledge her refusals.

One of my managers, Sue McDonald, was advised of the situation by Ms. Bird in January 1995. Ms. McDonald suggested that this matter should be dealt with in a more formal way, but Ms. Bird wanted to deal with it quietly by herself at that point in time; she felt it could be personally and professionally embarrassing, and for this reason, wished to deal with the matter herself.

Over the next six months, they discussed a number of options to take, including writing a letter to Mr. di Gaetano (sic) requesting that he stop the offensive behaviour, requesting formal intervention from the workplace harassment unit or approaching the police. Ms. Bird did discuss the matter with the police on several occasions, but did not wish to deal with the matter through the workplace process at that time.

On August 8, 1995, after eight months of continued behaviour that Ms. Bird had indicated she wanted stopped, she wrote a letter to Mr. di Gaetano (sic) explicitly stating what behaviour she found to be harassment and wanted stopped. This letter was then copied to Ms. McDonald who copied it to Mr. di Gaetano’s (sic) Manager, Mr. Arlani.

Mr. Arlani came in from holidays to discuss the matter with his employee in the second week of August, 1995. Mr. di Gaetano (sic) informed him that he had hired a solicitor to represent him in this case and did not wish to discuss the matter further.

In the meantime, Ms. Bird received a letter from Mr. di Gaetano’s (sic) solicitor accusing her of malicious prosecution, on the basis of a letter sent by Ms. Bird on August 8, 1995. The Letter indicated that if Ms. Bird took any further actions, Mr. di Gaetano (sic) would seek a restraining order.

In a meeting held between Mr. Arlani, Ms. MacDonald and Ms. Bird at the beginning of September to determine what further action should be undertaken, Ms. Bird indicated that the behaviour had stopped and although she was disturbed by the letter from Mr. di Gaetano’s (sic) lawyer, she did not want to request a letter of apology.

In a meeting held between Mr. Arlani, Mr. di Gaetano (sic) and Ms. Moran, Mr. di Gaetano (sic) expressed his concerns about the allegations and asked that his manager request an investigation into the matter.

Ms. Bird, however, did not want an investigation as she was intimidated by the Mr. di Gaetano’s (sic) solicitor and was finding the process to be a constant drain on her emotionally.

However, in a meeting held on September 15th with Ms. Bird, Mr. Arlani and Ms. McDonald, bringing closure to the informal complaint was discussed. It was suggested that a note to file be written to indicate that at this point in time, no further action would be taken, given Ms. Bird's reluctance to request an informal complaint. Ms. Bird did not find this to be a satisfactory resolution of her complaint.

At this time, I was informed of the situation by my Manager, Ali Arlani. I since met with Ms. Bird to discuss the nature of her complaint and with Ms. Molloy the Workplace Discrimination/Harassment Prevention Investigators/Trainer.

After hearing the full nature of the complaint and discussing the options with Ms. Molloy as well as the past incident involving the alleged harasser, I feel it is my obligation to request a full investigation into this matter. "

Mr. DiGaetano's counsel argued, that if there was going to be full disclosure before the formal request for an investigation, the disclosure had to occur on September 11, 1995. He further asserted that Mr. Arlani contradicted the grievor's testimony that he advised him of the three categories of Ms. Bird’s allegations. The grievor relied on his notes (Exhibit G-1, Tab 11) to refresh his memory. Mr. DiGaetano was not cross-examined on the validity of the notes. The Board is referred to the notes at paragraphs 2, 6, 7 and 9 of Exhibit G-1, Tab 11:

". . . 2. Ali indicated that Ms. Bird stated she has been harassed by Ralph DiGaetano over the last 18 months both inside and outside the office and that it has affected her performance in the workplace. It is hoped that her letter to him will provide the results - she is terribly upset at this. . .

. . . 6. Mr. DiGaetano pointed out that he requested a all statements made by Ms. Bird to Ali to be put in writing since Ali had just mentioned Ms. Bird's accusation of harassment going back 18 months instead of the 13 months indicated in Ms. Bird's letter of August 9, 1995. Mr. DiGaetano also indicated that his meeting with Ali on Sept. 8 showed varience (sic) from the letter - that Ms. Bird has also accused me of following her to and from work as well as asking her out both in and out of the office since Jan. 1995. . .

. . . 7. Ali indicated that he was mistaken and that the harassment charges are based on the August 9th letter. . . “

What is not in dispute is that Mr. Arlani agreed that at no point did he put the specifics of the allegations to the grievor. The Board is asked to disregard Mr. Arlani’s evidence. The grievor's evidence is preferred because he made the notes during the meeting. Even on the employer's best evidence, the employer did not comply with the obligation for disclosure so the grievor can respond. Mr. Arlani and the employer didn't do that. Mr. Arlani agreed that he received a letter from Mr. DiGaetano dated September 26, 1995 wherein it stated (Exhibit G-1, Tab 12):

"Re: Alleged Harassment of Ms. Cynthia Bird

Following our meeting of September 11, 1995 regarding the above subject matter I requested your decision and reasons in writing.

I am formally requesting once again your written decision in this matter. "

Mr. Arlani’s evidence was that he did not respond to Mr. DiGaetano's request. Apart from failing to disclose, Mr. Arlani didn't disclose the options for resolving the matter that were being discussed with Ms. Bird, nor did he keep the grievor informed that there were ongoing discussions with the complainant.

The evidence was that Mr. Arlani, Ms. McDonald and Ms. Molloy met with Ms. Bird on September 15, 1995 to discuss options for resolution. Ms. Borooah met with Ms. Bird on September 25, 1995 and discussed all the allegations at length. The grievor was not kept informed. Neither, Ms. Borooah, Ms. McDonald or Mr. Arlani discussed the options for resolution with the grievor.

Ms. Borooah's evidence was that she became involved in the matter on September 11, 1995. There was an emergency meeting between Mr. Arlani and the grievor. She allegedly became aware of the allegations against Mr. DiGaetano on September 11, 1995. The evidence of Ms. McDonald and Mr. Arlani contradicted Ms. Borooah's evidence because there was no discussion until after September 15, 1995.

On September 15, 1995 Mr. Arlani, Ms. McDonald and Ms. Borooah were to meet with the Assistant Deputy Minister. Mr. Arlani and Ms. McDonald were missing from the meeting, upon which Ms. Borooah looked for them and discovered them at a meeting with Ms. Bird. At the end of the day on September 15, 1995 Ms. Borooah met with Mr. Arlani and Ms. McDonald and was, at that time, provided with the details of the allegations against the grievor.

Subsequent to September 15, 1995, Mr. Arlani and Ms. Borooah attended a conference in Windsor between September 18 to 20, 1995. Ms. Borooah returned to her office on September 20, 1995 and met with Ms. Bird on that date. Before meeting with Ms. Bird, Ms. Borooah reviewed the WDHP guidelines and directives. Ms. Borooah’s testimony was, that while returning from Windsor by bus on September 20, 1995, she had a discussion about workplace harassment with a fellow passenger who was an expert on the subject. On September 22, 1995 Ms. Borooah met Ms. Molloy and made a formal written request for an investigation regarding workplace harassment (Ref. Exhibit E-1, Tab 4, supra).

The grievor's Counsel maintained that Ms. Borooah blames Mr. Arlani. She said that he told her that the grievor had a lawyer and that the grievor wasn't prepared to discuss the matter. Ms. Borooah focused on an earlier 1991 incident involving a groundless complaint by a Ms. Valladeres who alleged the grievor had harassed her. Ms. Borooah testified that she could not find the Valladeres files. When asked if she spoke to the grievor about the Valladeres incident, her response was that "He isn't interested in talking to us, he didn't want to discuss specifics and, therefore, I didn't approach him". Ms. Borooah said she knew Mr. Arlani had made such an earlier approach that failed to get discussion going. Counsel argued that none of that is true because Mr. Arlani did not say that. Council argued that Ms. Borooah didn't disclose because she was mistakenly under the impression that the grievor didn't want to discuss the matter.

It is noted that Ms. Carnegie-Douglas' letter of October 11, 1995 to Mr. DiGaetano regarding a request for a formal investigation contained no detailed information about Ms. Bird’s allegations (Ref. Exhibit G-1, Tab 14):

“Re: OPS WDHP INVESTIGATION

Please be advised that a request for a formal investigation under the Ontario Public Service Workplace Discrimination Harassment Prevention Guidelines (OPS WDHP Guidelines) has been filed by the Director, Housing Development and Building Branch, Ministry of Housing. The investigation is being requested into allegations of sexual harassment lodged against you by Ms. Cynthia Bird. The Deputy Minister, Ministry of Municipal Affairs and Housing, Mr. Dan Burns has authorized an investigation under the OPS WDHP Guidelines.

Ms. Bird alleges that since June 1994, she indicated to you that she did not wish to associate with you in any way. She further alleges that despite repeated verbal messages to you to leave her alone, you followed her to work on numerous occasions, waited for her in public places, attended her office on uninvited, passed by meetings she was in many times for no apparent reason, invited her to social activities and refused to acknowledge her refusals. Ms. Bird alleges that she wrote you a letter requesting that use cease the harassment and that you replied with a letter from your lawyer threatening to sue or her for malicious prosecution.

I have been assigned to investigate this matter and report on the allegations within the next 60 working days.

Information gathered during the investigation is collected under the OPS WDHP Guidelines passed in 1993. Additional authority for the collection of information from witnesses and third parties is based on Authorization 93-03 of the Information and Privacy Commission.

Although it is not required you may wish to be accompanied during the investigation process by a co-worker, or any other person not directly involved in the allegations.

Enclosed for your information is a copy of the OPS WDHP Guidelines so that you can prepare your response.

I will be contacting you in the next couple of days to set an appointment with you to discuss the allegations and your response. Meanwhile, you are invited to carefully examine the allegations and identify any documentation and/or witnesses who could support your position.

I trust that I can count on your cooperation to complete this investigation with a minimum of delay. Please accept my assurance that I intend to conduct this investigation with as little disruption to the workplace as possible.”

Ms. Carnegie-Douglas’ letter makes no reference to the Valladeres matter being the subject of investigation.

There was a significant disparity in the relationship between Ms. Borooah, Ms. McDonald and Ms. Bird, on the one hand, as compared to their relationship with Mr. DiGaetano. There had been a relationship since at least 1991 between Ms. Borooah, Ms. McDonald and Ms. Bird. All had worked at the Housing Advocacy Branch. It was a small branch of 20 and because of the nature of the advocacy work, Ms. Borooah described it as a “tightly knit group”. She described her relationship with Ms. Bird as one of "mentor". Ms. Bird also had a close working relationship with Sue McDonald.

Ms. Bird was hired as an intern at the Branch and was subsequently hired to a number of term contracts that were periodically renewed. Ms. Borooah testified that Ms. Bird's contract was transferred to Social Housing in June 1994. Ms. Bird was constantly approaching Ms. McDonald about coming back to the Branch because she didn't like Social Housing. Eventually she came back November 21, 1994. Ms. Bird's term of employment was due to expire. Discussions with Ms. Borooah and Susan Cork, of the Provincial Facilitator’s Office, took place and Ms. Bird's contract was transferred to the Provincial Facilitator’s Office. The transfer prevented a job posting and Ms. Bird was permitted to maintain her higher classification.

Consciously, or unconsciously, there was a sympathy arising out of the relationship that predisposed Ms. Borooah and Ms. McDonald to accept the veracity of Ms. Bird's allegations against the grievor. Counsel argued that there was no countervailing relationship with the grievor to balance that. Therefore, the Board is entitled to infer this. The Board may also infer stupidity or malice.

The grievor’s counsel argued that there were blatant breaches of rules. Both Ms. McDonald and Ms. Borooah were advocates for Ms. Bird's position. They were not impartial. Mr. Arlani also failed to comply with impartiality. He did so because of his view of his role. The Board is asked to note the employer's failure to disclose and its’ failure to respond to the grievor’s request for information.

In March 1995 Ms. McDonald advised Ms. Bird to speak to the police. Ms. McDonald took Ms. Bird's position by assisting her in drafting the August 9, 1995 letter to the grievor and then editing it. Without there being any further incident involving the grievor and without receiving his response, Ms. McDonald informed Mr. Arlani on August 11, 1995 and spoke to Ms. Molloy and Ms. Carnegie- Douglas on August 21, 1995. None of the witnesses focused on going back to the issues in Ms. Bird's August 9, 1995 letter. Any of the Managers could have said "the next time it happens, we’ll look at it". None of the Managers did so.

On her own evidence, Ms. Borooah is an advocate for Ms. Bird. Counsel for the grievor argued that Ms. Borooah's “Chronology of Actions” described in Exhibit G-3, p. 1 confirmed her advocacy for Ms. Bird:

"Both Ali and I were out of the office at meetings Monday and Tuesday. I spoke with Sue by phone who said she had indicated to Peggy I was inclined to want an investigation because there had been a previous incident involving the same individual. Ali indicated that a memo had been written outlining the last incident and he thought it should be located in the Branch files somewhere. I was concerned because I could not find any record of the "informal" process which had taken place previously - and felt that the process might continue to repeat itself again if it was dismissed too readily. I also indicated my concern that something worse might happen in this case if we do not take direct action, or if pursuing the process within Government was not effective and something of a criminal nature resulted. Sue indicated that since the complainant knew that I knew about the situation she had booked time with me to discuss it on Wednesday.”

(Emphasis Added)

Ms. Borooah was recommending formal investigation of Ms. Bird’s allegations to Peggy Molloy. She hadn't reviewed the WDHP directives, nor did she know much about Ms. Bird’s allegations against the grievor. There was a willingness to believe Ms. Bird and the phantom issue of the Valladeres matter. Ms. McDonald testified that the Valladeres matter was a big factor in pursuing a formal investigation.

When cross-examined, Ms. Borooah agreed that the Valladeres incident was the main factor in moving to a formal investigation. The Valladeres matter had been resolved. Judith Robertson carried out an investigation and found no merit to Ms. Valladeres’ allegations. The Valladeres issue should never have seen the light of day. The matter should have been dead. Counsel argued that Ms. Borooah reached a different conclusion. She said, despite the fact that there was nothing on file about Valladeres "there was a cloud". A secretary, Rachael David, told Ms. Borooah that the grievor had had a relationship with Ms. Valladeres and that it ended badly. Ms. Borooah agreed that where there is an informal resolution, no further reliance should be placed on the Valladeres incident. Counsel asserted that to the senior person in the Branch made a recommendation to have a formal investigation, with talking to the grievor, without facts, and based on a rumour.

At the point where Ms. McDonald drafted her September 22, 1995 memorandum to Peggy Molloy regarding "Formal Request for Investigation Regarding Workplace Harassment" (Exhibit E-1, Tab 4), Ms. Borooah and Ms. McDonald testified they were not aware that Ms. Bird was no longer employed in the Branch, and that she wasn't coming back. Notwithstanding that, neither Ms. Borooah nor Ms. McDonald noted that fact. Counsel for the grievor maintained they were advocates for Ms. Bird. Counsel also asked why didn't they wait to see if the problem continued? If Ms. Molloy was the ultimate decision maker in the investigation, why didn't she testify?

Ms. Molloy participated in meetings with Ms. Bird and Ms. McDonald. She had ample opportunity to take over the investigation, but didn't do so. It also appears that Ms. Borooah made her views known to Ms. Molloy before knowing all the facts. Ms. Bird's January 3, 1996 memorandum (Exhibit G-8, p. 2, para. 1) to Arnie Temple, Assistant Deputy Minister, Corporate Resources Management, raises the question of what Ms. Molloy’s real view of the matter was:

“While I was attempting to have this issue dealt with informally, on September 15, 1995 myself, Ali Arlani and Sue McDonald met with Peggy Molloy, a WDHP Instigator/Trainer. Although I was certain the guidelines applied to harassment that occurred outside of work (the circumstances of this are explained on page 5), at the meeting Peggy Molloy said it did not apply to events that occurred for example, on the way to work.”

Ms. Molloy’s involvement is discussed further in Ms. Borooah’s letter of January 18, 1996 to Jim Parker, Director, Human Resources Branch (Exhibit G-6, p. 3, para. 1):

“On September 15th, Mr. Arlani and Ms. McDonald met with Ms. Molloy to seek advice regarding the appropriate procedures to follow, although I understand Ms. Molloy’s advice about the application of the policy to the situation was not clear to them at that time.”

Ms. Molloy raised concern about management's objectivity in the handling of this matter in a letter dated April 2, 1996 to Daniel Burns, Deputy Minister (Exhibit E-1, Tab 13, p. 1):

"While there was no evidence of a "conspiracy" on the part of management, it was observed throughout the investigation that management was less than objective in favour of Ms. Bird. It would appear that some education on how to respond in similar situations in the future would be appropriate."

The Board was reminded that Ms. Molloy did not testify at the hearing.

Counsel argued that the obligation to act impartially and the obligation to consider all the circumstances requires managers to assess, at least in a rudimentary way, the validity of the allegations. A career can be affected as much by the investigation as by its’ outcome. The employer has a heightened duty to come to some conclusion. Both Ms. Borooah and Mr. Arlani felt they were under no such obligation. There may be a failure in their ability to assess whether the allegations were frivolous.

There were some obvious things the Employer could have looked at. The employer had Ms. Bird's log and could have compared it to the grievor's calendar to see if there was consistency. The log could have been compared to Ms. Bird's allegations. Instead of doing nothing about the email disclosure request made by the grievor, Ms. Borooah could have exercised some jurisdiction over the matter. Ms. Bird was inconsistent on the matter of her privacy. She didn't change her subway route when she was directed to do so by the police, and she did not want a formal or an informal investigation. The question was, what did she want?

Mr. DiGaetano’s Counsel argued that the WDHP investigation was flawed. It didn't conform to the WDHP Guidelines. There was a failure to disclose. There was a fundamental error when Ms. Bird dictated who Ms. Molloy could talk to. The Workplace Discrimination And Harassment Prevention Directive (Exhibit G-1, Tab 7) states at p. D-7-3:

• “An impartial investigation of the complaint must be conducted through the redress procedures established under this directive.

• 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.

• There must be no interference with an investigation or attempt to coach or intimidate a witness. “

Counsel asked the question, did anyone confer with the grievor to determine if it was okay to talk to a number of people about his personal information. The answer is that no one asked him for his approval.

Counsel for the Employer asserted there was a consensual relationships between the grievor and Ms. Bird that ended badly. The grievor's position is the relationship ended July 1994 and became a platonic relationship ending November 25, 1994. There is no question that the manner in which the relationship ended had an effect on the grievor's working relationship. He chose not to go to Ms. Bird's work area for fear of seeing her.

As late as June 12, 1995 the grievor consciously boycotted the Branch Seminar, which people were expected to attend. He didn't want to see Ms. Bird. There was an impact because of the way the relationship ended. This equally had an effect on Ms. Bird.

The situation should never have gone to the stage it did. The complainant saw the grievor in places she didn't expect to see him. Ms. Bird leaped to a conclusion. From her perspective she has reasons, but she was wrong. The grievor was simply waiting for the subway or innocently passing by the copying machine.

Ms. Bird went to see her confidant, who is not a manager and said, "the guy I was seeing is following me". From her perspective she saw a problem with the grievor. When Ms. Bird raised her concern with Ms. McDonald it was done to seek counsel. Ms. McDonald was neither Ms. Bird's, or Mr. DiGaetano's Manager. Ms. McDonald did nothing because Ms. Bird asked her to do nothing. Counsel maintained there was nothing wrong with this.

From November 1994 to March 1995 there were no incidents. The matter was handled correctly for a period, but there was too much delay. Counsel agrees that the delay was not entirely appropriate. Management should have acted sooner. Seeing something once doesn't necessarily require action, but after six times action should be taken. Ms. McDonald was following the complainants wishes and did so without malice. Ms. Bird wasn't asking Ms. McDonald to do anything other than to listen.

Ms. McDonald kept the matter as confidential as she could. She had no control over the grievor. She did not share the allegations with the grievor, or with anyone else who could have an affect on his employment. In hindsight, in March or April 1995, Ms. McDonald should have raised the concerns with the grievor. It is equally fair to say that when the matter was raised with the grievor, the misunderstanding would not have been cleared up.

Ms. Bird wanted her concerns to be resolved before she left the Branch. She was concerned about her reputation and wanted to keep the matter between herself and Ms. McDonald. The grievor's reaction to Ms. Bird's letter of August 9, 1995 was to retain legal counsel and to contact the Metro Toronto Police.

An earlier approach by Ms. McDonald would have assisted in clearing up the matter. Two dramatically opposed, antagonistic positions developed before Mr. Arlani got involved. Ms. McDonald had a close relationship with Ms. Bird and not with the grievor's. Mr. Arlani was closer to Mr. DiGaetano. The Employer’s counsel maintains that Ms. McDonald and Mr. Arlani did the right thing. Mr. Arlani fulfilled his managerial obligations. There was no prejudging.

Counsel acknowledged the existence of Ms. Bird's log. However, he maintained the Manager is not required to investigate before the matter is investigated fully. You can't prejudge either the complainant or the respondent. No one prejudged the grievor. There were allegations from the complainant and the respondent. The opportunity for investigation was there.

The resolution of the matter was attempted informally. The final decision to formally request an investigation was made by Ms. Borooah. Counsel suggests the Employer had no option. The Employer is accused of waiting too long. The Employer should have approached the grievor in March 1995. Both parties were diametrically opposed. The grievor wanted an investigation. However, the parties couldn't decide on their own to have a formal investigation. The Employer maintained that a formal investigation was inevitable.

Since the grievor wanted his complaint addressed formally, and the complainant wanted hers to be dealt with informally, reconciliation between the two positions was not possible. No action was taken against the grievor because no decision was made. The Employer asserts there were no prejudgements, as evidenced in the November 8, 1995 letter from Daniel Burns, Deputy Minister, to Mr. DiGaetano (Exhibit G-1, Tab 46):

"I have had the opportunity to review your letter of October 17, 1995. I appreciate that the initiation of an investigation can cause considerable anxiety. Please accept my assurance that no prejudgments have been made. The allegations will be fully investigated and any findings will be based on an objective analysis of evidence.

You have raised several specific concerns with respect to the complainant and management. These concerns should be addressed through the WDHP investigation. Any allegations or information you have in this regard should be conveyed to the investigator.

I understand that your request for e-mail messages is being processed through the Freedom of Information and protection of privacy process. Any decision made with respect to disclosing the records in question will have to be made in accordance with the Freedom of Information and Protection of Privacy Act.

I am pleased that you intend to cooperate fully in the WDHP investigation."

Mr. DiGaetano’s decision not to participate complicated matters. The difficulty encountered in getting the email backup tapes are not the Ministries' fault. Counsel agrees that full and complete particulars should have been given to the grievor. However, such full and complete particulars need not be given where there is an informal resolution.

The grievor’s understanding of Ms. Bird’s August 9, 1995 letter was different from Mr. Arlani’s. Mr. Arlani provided indication of the general problem. He indicated that the situation was affecting the workplace. The grievor was extremely disappointed that a full investigation was being done. At the time, enough information was given to find an informal solution (Ref. Exhibit G-1, Tab 7, p. D-7-1-3). The employer maintains that sufficient information is required by the WDHP Directive. Where you need all the details is in an investigation.

The Employer acknowledged that on the basis of Ms. Carnegie-Douglas' letter of October 11, 1995 (Exhibit G-1, Tab 14, supra) the grievor should have been given dates and times relating to Ms. Bird's allegations. Ms. Carnegie-Douglas' letter should have made mention of the Valladeres matter. The employer argued that because Mr. DiGaetano failed to participate, it is difficult for him to say he didn't get the details. Nonetheless, it is acknowledged that he should have received the details sooner. Full and more detailed information might not have made a difference since the grievor had refused to participate.

Nothing was done as the result of the investigation. The Employer still had to apply the WDHP policy. Ms. McDonald waited too long to take action. The wait and see approach of Ms. McDonald caused a delay. The circumstances on August 21, 1995 were different than before August 9, 1995. It would have been prudent to act earlier. Things were happening by August 21, 1995. The Employer admits there were contradictions in Ms. McDonald's actions.

Ms. Bird wanted to deal with the matter herself. She didn't want Ms. Macdonald to do anything. Ms. Bird wanted to maintain confidentiality. Ms. McDonald maintained confidentiality. However, at some point confidentiality must give way to the other principals involved. The timing of the obligation is at issue.

The requirements of due process do vary. There is no general obligation to provide specific details in a pre-investigation phase. However, disclosure should take place during the investigation phase.

The Employer argues that there was nothing improper in the relationship between Ms. Bird, Ms. McDonald and Ms. Borooah. Ms. McDonald was merely a Manager who was assisting an employee as her mentor. Such a relationship did not exist with Mr. DiGaetano.

Management should not prejudge a matter without an investigation. It must wait until after the investigation is completed. The Employer maintains that no prejudging took place. When reviewing Ms. Borooah's notes at Exhibit G-3, supra, they show she was inclined to have a formal investigation. Ms. Molloy’s advice was equivocal (see Exhibit G-6, p.3, para. 1). Her advice ended the question of whether an investigation should take place.

Ms. Bird was the aggressor with Ms. McDonald and Ms. Borooah. On September 20, 1995, Ms. Bird set up a meeting with Ms. Borooah. Ms. Bird was pushing for the meeting.

Ms. Borooah felt that approaching the grievor would not likely end in success. The issue was not whether approaching the grievor would assist. The question is whether it would have prevented the need for an investigation. Ms. Borooah knew an investigation was required.

The Employer pointed out that counsel for the grievor asserted that certain people were not to be interviewed during the investigation because Ms. Bird said so. The people who were not interviewed were all Ms. Bird's supportive witnesses. There is no one to support Ms. Bird's claims and the complaints fall. Nine people were contacted by the investigator.

The matter before the board is a very unfortunate circumstance. It is equally unfortunate that a more pro-active stance wasn't taken by Ms. McDonald. Had this occurred, the matter might have been resolved. Because of the inaction, an informal investigation was not possible. Is regrettable that the e-mails requested by the grievor were destroyed.

In rebuttal, counsel for the grievor reiterated that Ms. Bird dictated who should be interviewed during the investigation. The Draft Disclosure Notes (Exhibit E-1, Tab 11) relating to the investigation indicate:

• "In some situations where there could have been potential witnesses, c strongly objected to the investigator interviewing those individuals.

Objection based on concern for confidentiality (i.e. Not wanting too many people to know about the complaint), embarrassment for her, impact on her job.

Council argued that the WDHP directives are not only imposed on direct Managers. The allegations don't depend on whether the Manager manages the complainant. Ms. McDonald was not just a shoulder to cry on. She believed the allegations and still she didn't do anything.

The Employer argued that there is a limited duty to disclose at the informal stage. While the Board might except some variation in the duty to disclose, it is not as if some basic level of disclosure took place. The grievor got very little Information. There is a fundamental duty to provide full information, because without it, you can't make rational decisions about how to solve a problem if you don't know what the other side is alleging.

The Employer said, that even if the information had been provided, it wouldn't have made any difference. Isn't that speculation? If Ms. McDonald had come to the grievor, he could have provided e-mails that could clarify his position. The grievor's counsel maintains that there was prejudiced to the grievor. Had there been early intervention, it's entirely possible that Ms. Bird wouldn't have gone to the police.

The WDHP directives require that complaints must be filed. There is nothing that allows delay. The informal resolution process cannot be stretched out. The Employer argued that there is no duty to investigate. If that were so, every allegation would have to go to a formal complaint. The directive was not intended to do that. Informal solutions are contemplated. How would one know if there is a basis for a complaint if there isn't some rudimentary investigation? Such an investigation was not done in the present matter.

All of the case law dealing with harassment, however defined, is objective and not subjective. One cannot only rely on the statement of the complainant. There has to be some rudimentary assessment about the objective merits of the complaint. Such an assessment was not done in the present case.

A formal investigation was not necessarily inevitable. Had Mr. Arlani made himself knowledgeable about the situation and had Ms. Borooah placed a call to Judith Roberts or Aubrey LeBlanc, she might have found out about the Valladeres situation. Instead she spoke to a secretary about it. The grievor pointed out his difficulty in recovering e-mails and certain other procedural complaints about management. What Ms. Borooah did was she wrote to the person to whom the investigator reported.

The grievor testified that he gave an explanation to Mr. Arlani regarding the subway matter. If Mr. Arlani had the broader understanding of the issues, beyond the subway incident, why didn't he address them? The grievor felt there was a lack of disclosure. For that reason, he didn’t participate. The Ministry compounded an error that is not of the grievor’s making. The e-mail problem was caused by Ms. McDonald's failure to act (disclose). Delay prejudiced the grievor when the e-mails weren’t retrieved. To Ministry did everything it could to prevent the grievor from getting the material. It took the Privacy Commission to get release of the e-mails. The Ministries’ refusal to assist the grievor was inappropriate.

DECISION:

The Board has thoroughly reviewed the extensive testimony and documentary evidence that was received over many days of hearings. The facts surrounding this case are clear. It is known that the grievor had a consensual relationship with Ms. Bird for a period of time, whereupon it ended. Ms. Bird, met with Ms. Sue McDonald intermittently (12 to 13 times) over an approximate one year period to complain about the grievor allegedly harassing her. Ms. McDonald testified that Ms. Bird came to her office 5 or 6 times in the fall of 1994 complaining that the grievor stopped by her office, that he purchased gifts for her and was seen in subway locations that he had not previously frequented. Ms. McDonald claimed she provided options to Ms. Bird each time they met in 1994.

The Board is aware that Ms. McDonald provided advice and assistance to Ms. Bird in drafting her August 9, 1995 accusatory letter to Mr. DiGaetano. Ms. McDonald also assisted in the editing of the letter. She indicated that some of the options discussed in 1994 with Ms. Bird included talking to the grievor, discussing the matter with WDHP, or with Mr. Arlani. Ms. Bird apparently wanted to keep the matter private and did not act on any of the options prescribed by Ms. McDonald.

Ms. McDonald's evidence was that during the period March 1995, to August 1995 Ms. Bird again discussed her concerns another six times. Her complaints were that she saw the grievor in the subway, that he was passing by her office and passing by a Section meeting at which she attended. Again, Ms. McDonald said she provided Ms. Bird with options to deal with her concerns. Ms. Bird rejected the options as she continued to want to keep the matter private. She allegedly wanted to resolve the issue informally. Ms. Bird purportedly wrote the August 9, 1995 letter to Mr. DiGaetano in a final attempt to resolve the matter informally.

Without reiterating the facts that have already been identified earlier in this award, it is absolutely apparent that Ms. McDonald had clear knowledge for approximately one year about Ms. Bird's concerns, including access to Ms. Bird’s personal log. Indeed, she was an active participant in providing advice, that included counselling Ms. Bird to go to the police. All of this was done over an extended period of time without ever speaking to the grievor so his input could be solicited.

There was no evidence that Ms. McDonald ever questioned the veracity of Ms. Bird’s accusations against the grievor. Indeed, she appeared sympathetic. The subsequent WDHP investigation showed Ms. Bird lacked credibility and showed her allegations to be without foundation. See Re Canadian Union of Public Employees and Office And Office And Professional Employees’ International Union, Local 491 (1982) 1982 CanLII 4831 (ON LA), 4 L.A.C. (3d) 385 (Swinton) at pp. 406 and 407:

"The grievor's relationship with H had clearly become a contest, as Dr. Cook, the psychiatrist, put it. She was determined to win the contest by having a ruling in her favour on her complaints. When C.U.P.E. did not comply, as it was not obligated to do if one looks at the cases, she refused to consider any compromise, even though she admitted that she knew H’s job was in jeopardy. As the cases stress, the employee has a right to a harassment-free environment, but she does not have the right to a "pristine" environment. Nor does she have a right to vengeance for past humiliations and hurt, or to have her complaint believed and acted upon when there is good reason to doubt its credibility."

The first time Mr. DiGaetano became aware of Ms. Bird's allegations was at a meeting with Mr. Arlani, on August 17, 1995. There is no doubt that Ms. McDonald's handling of the matter created an unreasonable delay that negatively impacted Mr. DiGaetano’s ability to adequately and expeditiously address Ms. Bird's allegations. Ms. McDonald had knowledge of Ms. Bird’s complaints for at least one year, yet she took no steps to inform the grievor. The issue of delay is discussed in Re Seneca College of Applied Arts and Technology and Ontario Public Service Employees Union (1996) 1996 CanLII 20222 (ON LA), 57 L.A.C. (4th) 343 (Keller) at p. 354:

"Procedural fairness is one of the hallmarks of the Canadian judicial system. It must also be one of the hallmarks of the arbitral system. It is fundamental to the 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.

In the instant case, it is our interpretation of the College's policy that, at the very least, the grievor was entitled to a Board of Inquiry. As indicated above, had a Board of Inquiry been held, the matter might not have proceeded to this point. In our reading of the policy of the College, one thing becomes abundantly clear; a cornerstone of the policy is openness. Perpetrators face harassers, harassers face perpetrators. The policy recognizes that education is important. The policy recognizes that correction is possible. Unfortunately, in the instant case, by not following its own policy procedurally, the ability to educate was lost.

. . . The board cannot ignore the issue of delay as raised by the union. The issue of delay is important, because it denies the grievor the opportunity to raise a proper defense against the allegations. As was pointed out by counsel for the union, in most situations where there is an untoward delay, the law is that all the allegations are simply dismissed.”

Not only did the employer cause the undue delay, it failed to provide the grievor with the real details about Ms. Bird's allegations. The grievor was, thereby, prejudiced in his ability to adequately defend himself against the damaging accusations. See Re Treasury Board (Solicitor General) and Kahlon (File No. 166-2-20871) (1991) 1991 CanLII 13502 (PSSRB), 19 L.A.C. (4th) 231 (Kwavnick) at pp. 249 and 250:

"Management never doubted Ms. Hein's word. Her allegations resulted in the production of documents which were retained on the employer's files (two of them, exs. E-5 and E-6, were placed in evidence before me). Ms. Hein told Warden Stonoski that she did not wish him to act on her allegations. According to the warden’s memorandum of April 24th;

She was particularly concerned that I had intended to launch an investigation into this matter. She felt that it would serve to no useful purpose at this point and did not wish to "bring it out into the open". Moreover, she was not in favour of my speaking with Mr. Kahlon privately because she feared his vindictiveness.

So it was that at Ms. Hein's request there was no investigation of her allegations and no confrontation with the grievor. Ms. Hein did not wish to make the matter public nor did she wish to have the grievor confronted. Warden Stonoski yielded to her views on these matters. It all seems to be so very, very reasonable. But it is so very, very wrong.

In the mind of Warden Stonoski there was not the slightest doubt that Ms. Hein was telling the truth. The grievor was thus tried and found guilty on the basis of nothing more than the untested and unsubstantiated allegations of one person. He was never confronted with those allegations and he was never given an opportunity to answer them.

The fact that the grievor was not disciplined as a result of those allegations does not mean that the employer was under no obligation to give him an opportunity to answer them. The allegations were in the minds of management, or on file and they were believed. It is inevitable that management's view of the grievor would be influenced by the allegations which it had accepted as being truthful.

What would be the consequences of this influence? There are many possible consequences. The grievor might have found, for example, that his performance appraisals were no longer quite as favourable as they had been. Not actually unfavourable, but simply a shade less enthusiastic. He might have found that he was experiencing more difficulty than usual in being sent on courses leading to promotion. He might have found that his career was not advancing as it had been. He might have found that there was a subtle shift in management's attitude toward him, nothing that he could put his finger on but certainly something that he could sense.

Suppose that at some point along the way he decided to try to get to the bottom of the matter and find (sic) out what it was that was hindering him. Suppose that he bucked up his courage, arranged for an interview with the warden and set out his apprehensions there. What reply would he have received? I do not know what reply he would have received. However, there is not the slightest question in my mind about the reply that he would never have received. He would never have been told the truth: that as a result of certain allegations by Ms. Hein management took a much a dimmer view of him with a consequence that his prospects were no longer as bright as they once had been.

And so, poor grievor, would have been left to the end of his days knowing that something had happened to change the employer's estimation of him but he would never be able to discover what that something was. The whole thing is straight out of Kafka and it is all utterly unacceptable.

I would note that if the employer is permitted to deal with such allegations in this way, the door is open for every vengeful or vindictive woman in the Public Service to damage the career of any man who has gotten on the wrong side of her. Indeed, what would prevent a woman from making such allegations for the purpose of spiking the guns of a male colleague whom she regards as (sic) serious rival for an upcoming promotion? When such a door is left open, it must be assumed that, sooner or later, someone will come through it.”

The WDHP Directive required that “all management and supervisory staff have an obligation to act quickly upon information concerning incidents of discrimination and harassment. The complainant and the alleged offender are to be treated fairly, while preserving the dignity, privacy and self-respect of all persons involved”.

The overwhelming evidence is that Ms. McDonald, Mr. Arlani and Ms. Borooah all failed to act expeditiously on Ms. Bird’s allegations and, importantly, failed to properly inform the grievor about the substantive details of the allegations. Mr. DiGaetano had the right to know, specifically, what his accuser was saying about him. He did not receive the detailed particulars of Ms. Bird’s accusations.

The Board finds the Employer breached the WDHP Directive when it failed to act quickly and failed to provide the necessary information to the grievor. Mr. DiGaetano was not treated fairly, nor was his respect and dignity preserved. Indeed, the grievor’s reputation was being impugned by Ms. Bird while the Employer did nothing for a very long time. An Employer’s duty to act on its policies is discussed in Re Canadian Broadcasting Corporation and Canadian Media Guild (1998) 1998 CanLII 30151 (CA LA), 70 L.A.C. (4th) 44 (Hope) at pp. 82 and 83:

". . . Thus it can be expected and that where the employer takes a disciplinary action in response to complaints of sexual harassment, it will be required to justify its failure to implement its sexual harassment policy even though the policy is not incorporated in the collective agreement. That obligation arises under the general arbitral principles that require consistency on the part of the employer in the exercise of their powers of discipline.

That is, a failure to invoke the sexual harassment policy in some circumstances could fall within the general principle of discrimination outlined in Brown and Beatty, Canadian Labour Arbitration (1997), para. 7:4414 on p. 7- 180. . . "

. . . Hence, in circumstances where the Employer fails to follow its policy, as in this case, the question arising is whether it has discriminated against the employee in the sense contemplated in the authorities. If, for example, the facts in this dispute supported a conclusion that the failure to invoke the policy deprived the grievor of the adequate opportunity to defend his employment, the failure would have to be weighed with the same consequences as any act of discrimination in the imposition of discipline. In particular, if the facts supporting the conclusion that the failure to invoke the policy had denied the grievor the capacity to establish that the employment relationship continued to be viable and that remediation of the impugned conduct could be achieved without the necessity of a dismissal, the Employer could be found to lack just cause to support its initiative. . .

. . . The facts relating to the process adopted by the Employer did not reveal any restriction on the right of the grievor to know and meet the allegations of misconduct made against him. . . "

The grievor requested specific information about the allegations, but didn’t receive it. He encountered great difficulty in getting access to certain emails he believed would counter-act Ms. Bird’s allegations. The grievor was subjected to significant delay and hardship in getting access to the emails. There is no evidence that the Employer made any real attempt to assist him.

On September 15, 1995 Ms. McDonald, Mr. Arlani and Ms. Molloy met with Ms. Bird to discuss options for resolution. Ms. Borooah also had a lengthy meeting with Ms. Bird on September 25th, 1995 to discuss her allegations. The grievor was not informed about the proposed options for resolution that were discussed with Ms. Bird on September 15, 1995. The fact that Mr. DiGaetano was not informed, casts further doubt on management’s objectivity and fair handling of the matter.

Ms. Borooah acted very inappropriately when she relied on a previously resolved incident concerning Ms. Valladeres. Notes described in Exhibit G-3, p. 1, supra, stated ". . . I was inclined to want an investigation because there had been a previous incident involving the same individual". The earlier Valladeres investigation revealed that the complaint was also without foundation. The Valladeres matter had been resolved and should, therefore, never have resurfaced in the context of Ms. Bird’s allegations. Ms. Borooah unfairly and improperly raised the spectre of the Valladeres incident yet again.

Ms. Borooah confirmed that the Valladeres incident was the main factor in going to a formal investigation. It was her stated view that there was a cloud resulting from the Valladeres incident. Ms. Borooah’s reliance on the Valladeres matter raises clear doubts about her objectivity in handling this matter. The grievor was never asked about the Valladeres incident and yet Ms. Borooah felt there “was a cloud”. See Re the Crown in right of Ontario (Workers' Compensation Board) and Canadian Union of Public Employers (sic), Local 1750 (1995) 1995 CanLII 18272 (ON GSB), 45 L.A.C. (4th) 257 (Simmons) at p. 281:

“. . . When an employee fails to meet an acceptable standard established by the employer, assuming that standard is reasonable in all the circumstances, it is incumbent upon the employer to bring to the attention of the employee that his/her work performance and/or behaviour must improve to that acceptable standard. Should the employee fail to improve the employer then must bring to the attention of the employee through progressive forms of discipline that the performance and/or behaviour remains below an acceptable standard which must be improved. . “

Also see Re Canada Post Corporation and Canadian Union of Postal Workers (1983) 1983 CanLII 4933 (CA LA), 11 L.A.C. (3d) 13 (Norman) at p. 19:

“. . . First, there is no evidence upon which I might conclude that the employer "exercised all due diligence to prevent the act from being committed". . .

. . . Second, there is the duty to objectively investigate and take steps to mitigate or avoid the consequences of the incident of harassment. Again, there would seem to be no compliance on the part of the employer. . .”

The concern Ms. Molloy expressed about management’s objectivity in her letter of April 2, 1996 to Mr. Burns, Deputy Minister, cannot be ignored. While she acknowledged there was no evidence of a “conspiracy” on the part of management, she did observe that management favoured Ms. Bird during her investigation. Ms. Molloy suggested management would benefit from some education that would assist them in responding to similar situations in the future.

The Board is aware and concerned that Ms. Bird had input into who the WDHP investigator could talk to. Allowing Ms. Bird to have any input into who would be talked to was counter to the WDHP Directive that required there be no interference with an investigation. In contrast, there was no evidence that the grievor was afforded the same opportunity or option. Further, Mr. DiGaetano did not receive full disclosure of the real details of Ms. Bird’s accusations.

It is the finding of the Board that the Employer breached the Workplace Discrimination and Harassment Prevention Guidelines when it failed to act within a reasonable time after learning of Ms. Bird’s allegations about the grievor. To have allowed Ms. Bird to make damaging accusations about the grievor for more than one year, was contrary to the WDHP Directive and is patently unreasonable.

The Employer failed to treat the grievor fairly, while preserving his dignity, privacy and self-respect. The Board comes to this conclusion because the grievor was not informed about Ms. Bird’s allegations in an expeditious manner, nor was he given the particulars of her assertions. Ms. McDonald knew about Ms. Bird’s complaints for approximately one year, while the grievor was not apprised. Ms. Borooah did further damage to the grievor by speaking to a secretary about the Valladeres matter and by relying on it in her decision to have a formal investigation. The Employer’s conduct in this regard contravened the WDHP Guideline.

The Employer failed to quickly initiate consultation with the appropriate persons, so remedial procedures could be acted on. The Employer had a duty to act as quickly as possible when it became aware of the allegations against the grievor. The Employer’s duty exists whether or not a complaint is filed. Management failed to ensure compliance with the WDHP Directive.

Further, the Board finds the WDHP investigation was flawed when Ms. Bird was permitted input into who would be interviewed by the investigator. There was no evidence that the grievor was given the same opportunity. The WDHP Directive requires there be no interference with an investigation or intimidation of witnesses. Allowing Ms. Bird to have a say in who the witnesses were was not congruent with intent of the WDHP Directive. The WDHP investigation also failed to provide the grievor with adequate and detailed information, thereby, restraining his ability to defend himself fully.

The Board also acknowledges the hardship the grievor was put through as a result of Ms. Bird’s unfounded allegations and the regrettable way in which management handled this matter.

The Board therefore declares that the employer is in breach of its duties under the WDHP Directive and therefore in this respect the grievor’s grievances are upheld, for the reasons stated above.

Given the resignation of this Vice Chair from the Public Service Grievance Board, and given that counsel mutually agreed to bifurcate the hearing, I direct the Public Service Grievance Board to appoint a new panel to address the matter of remedy.

Dated at Toronto, this 26th day of October, 2000.