Award Number 05-018

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Award Date:	2005-12-20
Arbitrator:	Marcotte, W View awards by Marcotte, W
Municipality:	Ottawa-Carleton View awards from Ottawa-Carleton
Region:	East View awards from East
Classifications:	Discipline, Disciplinary Penalties, Evidence, Evidence
Grievor:	M. Orwin
Appearances:	S. Welchner and others, for the Association C.V. Hofley, L.N. Fisher and others, for the Employer
Length of Award:	68 pp
Collective Agreements Cit.	Art. 3
Statutory Cit.

Summary

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Discipline   - Sexual assault - Civilian member discharged for sexual assault on female co-worker - Irreconcilable versions of incident - Credibility pivotal issue - Grievor not credible - Complainant’s version credible and supported by other evidence - Sexual assault constituting prima facie grounds for discharge - Mitigating factors of lengthy, clear record insufficient - Grievor failed to take responsibility for his actions and showed neither remorse nor insight - Grievance dismissed.

Disciplinary Penalties   - Modification of penalty - Grievor exhibited no contrition in relation to sexual assault on female co-worker - No apology to victim - Evidence of inappropriate behaviour towards other female colleagues - Grievor faulted female co-workers and suggested he needed protection from them - Attitude not indicative of rehabilitative potential - Twenty-years discipline free service insufficient to warrant reinstatement with reduction in penalty - Grievance dismissed.

Evidence   - Standard of proof - Allegations of sexual assault in the workplace - Definition of sexual assault in R. v. Chase adopted - Onus on employer to prove on balance of probabilities by way of clear and cogent evidence that grievor sexually assaulted complainant - Grievor touched co-worker in manner that violated her sexual integrity - Offence proved to requisite standard - Discharge justified.

Evidence   - Credibility of witnesses - Grievor and complainant the only witnesses to incident leading to allegation of sexual assault - Overwhelming credibility gap in their respective versions - Complainant provided credible version of incident - Clarity on essential elements of assault - Grievor not providing credible version - Inconsistencies in grievor’s version were on critical points in evidence - Clear and cogent evidence that grievor sexually assaulted complainant.

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Facts

The grievor was a civilian employee with 20 years of service and a clear disciplinary record. On February 27, 2004 he was discharged for sexually assaulting a female co-worker, M., on April 24, 2003.

M. gave testimony about sexual comments which the grievor had made to her prior to the incident, as well as the grievor’s propensity to “sexualize” conversations with her and other female employees. The evidence surrounding the incident of April 24, 2003 was very much in dispute. M. testified that she went with the grievor to a storeroom for the purpose of obtaining some pamphlets which she needed to develop a community policing program. As she walked out of the locked storage area, she claimed that the grievor touched her on the back of her neck, then leaned forward and kissed her neck. He then pulled her back to him. These actions were repeated twice. M. testified that the grievor also said something to the effect of “I’ve wanted to do this.” She opened the door and told him “You’re crazy”. M. testified that she was very upset and embarrassed by this incident. She immediately told a co-worker, C., about the incident. C. testified about the incident and her observation that M. was teary eyed and shaken about what happened.

The next day M. told her supervisor, who contacted a SACA (sexual assault and child abuse) officer. The SACA officer proceeded to investigate by interviewing M. and later C. as well as other co-workers. He interviewed the grievor on May 6, 2003. The Employer’s Professional Standards Section (PSS) was also involved in the investigation of M.’s complaint against the grievor. The investigation revealed that the grievor had made inappropriate and sexually suggestive comments to other female co-workers, including two uniform members.

The grievor’s version of the April 24th incident was that he “massaged” M.’s shoulder area, because she was stressed out about her work proposal. He denied much of the evidence of M. and her female colleagues, and generally indicated that either his comments were not intended to cause offence, or should not have caused offence [because they were misapprehended] or that he did not know they caused offence.

The grievor was suspended with pay on April 28, 2003. On February 10, 2004 the Superintendent in charge of the CID had a meeting with the grievor and the HR director. The Superintendent encouraged the grievor to have Association representation. The grievor claimed that he was taken aback by the suggestions of other inappropriate behaviour, though the evidence indicated that he had been informed of at least two other female co-workers’ statements at an earlier meeting. From the perspective of management representatives at the meeting, the SACA investigation was complete, and the grievor stood to be discharged unless he could provide an explanation or show some remorse. The grievor apparently did neither, but rather shifted the blame to his female colleagues, and even suggested that surveillance cameras should be installed in the workplace to protect him from the women (presumably to deter false allegations, though the suggestion was somewhat obscure, being accompanied by statements about the provocative way women dress, bounce around and “shake their booty”.) The Employer’s representatives found the grievor’s statements and attitude very disturbing, and decided the employment relationship could not be salvaged.

Argument

The Employer argued it had just cause to discharge the grievor for sexually assaulting M. The Employer submitted that M.’s version of events was credible, whereas the grievor’s version was not credible. In view of the gravity of his offence, his absence of remorse and failure to apologize, discharge was appropriate.

The Association pointed to inconsistencies in M.’s version, particularly as to the exact words uttered by the grievor and whether the grievor actually kissed her or only attempted to kiss her. The Association argued that the grievor’s version was credible, and the sexual assault had not been proved. The Association also argued that the Employer’s investigation was unfair and the grievor suffered from a lack of information.

Award #

The issue at arbitration was whether the Employer had just cause to discharge the grievor for sexually assaulting M. The discharge letter referred to a “pattern of harassing conduct”, but the Employer relied on this not as a separate ground, but rather for the purpose of discrediting the grievor’s denial that he sexually assaulted M.

The standard of proof was balance of probabilities, but given the seriousness of the allegations and the consequences to the grievor, the standard to be met was a high degree of probability, on the basis of clear and cogent evidence. The Arbitrator adopted the Supreme Court of Canada’s definition of sexual assault in R. v. Chase (1987), 45 D.L.R. (4th) 98, that is, a violation of the “sexual integrity” of the victim. Given the irreconcilable differences in the versions of M and the grievor, credibility was crucial in this case.

M. provided a credible version of the events of April 24, 2003. Her evidence lacked consistency with regards to the grievor kissing her on the back of her neck, but was otherwise consistent that she felt the grievor’s beard and lips on her neck three separate times. She also was consistent in her assertion that she heard the words “wanted” and “this” when the grievor first touched her. The grievor, by contrast, did not provide a credible version, and his inconsistencies related to critical points: why he placed his hands on M., and where he placed them. M’s version was further corroborated by C. Nevertheless, M’s version was on its own sufficiently clear and cogent to establish that the grievor did commit sexual assault.

In terms of penalty, balanced against the grievor’s lengthy, clear record was his absence of remorse. He failed to take responsibility for his actions, and attempted to shift the blame to his female colleagues. He never apologized to his victim, and showed little insight or understanding that his actions were wrongful. Such an attitude gave no assurance that he would not repeat his misconduct if reinstated.

The Arbitrator held that discharge was justified, and it was not appropriate to substitute a lesser penalty.

Authorities Cited

· Re Niagara Health System and S.E.I.U., Local 204 (July 11, 2005) unreported (Marcotte)

· Re Trillium Health Centre and C.U.P.E., Local 4191 (Borgona) (2001), 102 L.A.C. (4th) 48 (Surdykowski)

· Re Canadian Airlines International Ltd. and I.A.M., Dist. 140 (2000), 92 L.A.C. (4th) 153 (62 C.L.A.S. 123) (Keras)

· Re Canadian National Railway Co. and C.B.R.T.& G.W. (1988), 1 L.A.C. (4th) 183 (M.G. Picher)

· Re McMaster University and S.E.I.U., Loc. 532 (1993), 33 L.A.C. (4th) 33 (Brunner)

· Re Royal Towers Hotel Inc. and Hotel, Restaurant and Culinary Employees and Bartenders Union, Loc. 40 (1992), 32 L.A.C. (4th) 264 (Blasina)

· Re Canadian Broadcasting Corp. and Canadian Media Guild (Christopher) (1998), 70 L.A.C. (4th) 44 (Hope)

· Re Manitoba Lotteries Corp. and M.G.E.U. (MacAuley) (2002), 114 L.A.C. (4th) 193 (Peltz)

· Re Baptist Housing Society of British Columbia and I.U.O.E. [1999], B.C.A.A.A. No. 321 (Dorsey)

· Re Canadian Union of Postal Workers and Canada Post Corp. (Walsh) [1995], C.L.A.D. No. 60 (Thistle)

· Re Toronto (Municipality) and C.U.P.E. Loc. 79 (Kline) (1997), 62 L.A.C. (4th) 185 (Tims)

· Re Government of the Province of Alberta (Dept of Social Services and Community Health) and A.U.P.E. (1983), 10 L.A.C. (3d) 179 (Larson)

· Re Western Grocers and U.F.C.W., Loc. 1400 (1993), 32 L.A.C. (4th) 63 (Priel)

· Re Ottawa Board of Education and Ottawa Board of Education Employees’ Union (1989), 5 L.A.C. (4th) 171 (Bendel)

· Re Eurocan Pulp & Paper Co. and C.E.P., Loc. 298 (Klie) (2000), 93 L.A.C. (4th) 95 (Hope)

· Re North York (City) and C.U.P.E., Loc. 94 (1990), 16 L.A.C. (4th) 287 (Burkett)

· Re Faryna v. Chorny [1952], 2 D.L.R. (354) (B.C.C.A.)

· Re British Columbia and B.C.G.E.U. (1995), 49 L.A.C. (4th) 193 (Laing)

· Re School District No. (Chilliwack) and Chilliwack Teachers’ Assn. (1990), 16 L.A.C. (4th) 94 (Hope)

· Brown and Beatty, Canadian Labour Arbitration (3d) (Aurora, Ont.: Canada Law Book Inc.) paras. 3:2500 and 3:5110

· R. v. Chase (1987), 45 D.L.R. (4th) 98, 37 C.C.C. (3d) 97 [1987] 2 S.C.R. 293 (S.C.C.)

· Re Bates v. Bates [1951] P. 35, [1950] 2 All E.R. 458, 114 J.P. 416 (C.A.)

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