AD HOC 405

AWARD

DISPUTE:

On or about October 17, 1988, Mr. J. Schembri, Obico Terminal, was issued 60 demerit marks and terminated for:

“Violation of Company Policy of incident of September 30, 1988, Sexual Harassment: Re: Susan Duffield.”

STATEMENT OF ISSUE:

The Union contends that the 60 demerits and termination were not for just and sufficient cause and in the alternative that the penalty was excessive.

The Union requests removal of the demerits, reinstatement with full seniority and full compensation, including interest; and in the alternative such other remedy that may seem appropriate.

The Company maintains that in the circumstances the penalty was justified.

The grievor, Mr. John Schembri, has been employed by the Company for some nine years. At the time of his discharge he was working as a shuntman at the Company’s Obico freight terminal in Etobicoke, Ontario. At all material times he worked on the afternoon shift, from 4:30 p.m. to 1 a.m. generally moving trailers within the Obico terminal yard. The employee who brought the complaint against the grievor, Ms. Susan Duffield, has worked approximately eleven years for the Company and was employed as a data entry clerk in the office at the Etobicoke terminal, also on the afternoon shift.

Ms. Duffield, who is deaf and mute, gave her evidence at the hearing through an interpreter, by means of sign language. Ms. Duffield’s evidence establishes that on the morning of September 30, 1988, shortly before 1 a.m., upon her return from the washroom paused and looked through a glass doorway and window which is located on a stairway landing at ground level on the north side of the terminal building. She relates that as she was watching fellow employee Jim Patch who was in the parking lot immediately in front of the doorway she was approached from behind by the grievor. She testified that Mr. Schembri reached around her from behind, wrapping his arms around her in a way which pinned her own arms, while thrusting his genitals against her buttocks. According to Ms. Duffield she immediately broke free of his grip, moving quickly backwards up three or four steps. While she is unable to speak in a normal fashion she can make herself understood to a certain extent by expressing sounds with her mouth. She relates that as she backed up the stairs she repeatedly uttered a “No, no!” sound to Mr. Schembri. According to her account, apparently unfazed, he laughed and mimicked her sound as she backed up in obvious anger.

It is not disputed that at that moment employee Jim Patch entered through the door. His evidence is that he was walking back from his car towards the doorway, at a distance of approximately thirty to forty feet, when he saw Ms. Duffield standing alone, looking out towards him. He relates that he then saw the grievor approach her from behind and place his arms around her in the manner described above. At that time Mr. Patch and Ms. Duffield were friends at work with a somewhat closer than average relationship by virtue of the fact that Mr. Patch, who is not hearing impaired, is able to communicate in sign language. It is common ground that although they were not socially involved outside the workplace at the time of the incident, Ms. Duffield and Mr. Patch have since become romantically involved.

Mr. Patch relates that when he saw Ms. Duffield disengage from the grievor and retreat in anger, he entered the doorway and immediately got involved in a heated verbal confrontation with Mr. Schembri. According to his account, he forcefully stated to Mr. Schembri that he would “get him” if he ever tried anything like that again. As the two were engaged in their heated confrontation another employee, Mr. Terry Dychuk appeared in the stairway leading up to the landing. Mr. Dychuk and the grievor then left the building through the front door while Ms. Duffield and Mr. Patch walked up the stairs to the upper level where the office is located. Ms. Duffield further testified that as she and Mr. Patch returned to the office area she stated that she related to him, still very disturbed, that Mr. Schembri had pushed his penis against her, asking him why he would do such a thing. While Mr. Patch confirms that she related that fact to him, in his own testimony he stated that he was unable to see it from where he witnessed the incident from the parking lot area.

It is common ground that Ms. Duffield finished her tour of duty within minutes of the incident. It also appears that fellow office employee Mary Diflorio heard about the incident as she encountered Mr. Patch and Ms. Duffield who were returning to the office area. Ms. Duffield, who left work minutes afterwards, did not report what happened to any member of management until the commencement of her shift on the afternoon of September 30. Upon her return to work she brought it to the attention of Ms. Enid Kuivenen, her immediate supervisor. Her supervisor, in turn, immediately notified Ms. Denise Salmon, Manager of Administration at the Obico terminal. After a brief interview, Ms. Salmon obtained a written statement recounting what had happened between Ms. Duffield and Mr. Schembri early that morning. In her written statement Ms. Duffield also related certain prior incidents of non-physical sexual harassment which she had experienced through the actions of Mr. Schembri. While she could not be specific as to the precise time and date of these other incidents, during her testimony Ms. Duffield related that on a number of occasions in the past Mr. Schembri had made gestures of an explicit sexual nature directed towards her. By way of example she recounted how, when he came to the office to sharpen a pencil, he would stare at her with what she interpreted as a suggestive expression while thrusting the pencil back and forth through his fingers formed into a circle, in a crude and obvious representation of sexual intercourse. Ms. Duffield related that other drivers would communicate with her on occasion in the office, sometimes making jokes by writing notes, but that these were always of a light-hearted, non-serious nature. The grievor’s actions on the other hand left her with the impression that his suggestive overtures were serious, which caused her to feel uncomfortable. According to her evidence she brought this matter to the attention of fellow employee Mary Diflorio whom she knew to be a friend of Mr. Schembri. She states that she asked her co-worker to tell the grievor that she did not wish to be bothered in that way, and that Ms. Diflorio later related to her that she had spoken with him and that she had no need to be concerned.

Mr. Schembri denies any wrongdoing. He states that at most what might have occurred on the landing on the morning of September 30 is that he may have brushed against Ms. Duffield as he was walking past her to leave the premises through the front door at the end of his shift. According to his account, he had both of his hands in the pockets of his bomber jacket, and that he walked past Ms. Duffield and turned his back to the door to open it by pushing against it without removing his hands from his pockets. Mr. Schembri states that at that point Mr. Patch encountered him in the doorway and subjected him to a verbal assault saying “You’ll be sorry. I’m going to get you”. When he was subsequently interviewed by Personnel Manager D. Tarsay, Mr. Schembri denied having engaged in any offensive touching of Ms. Duffield stating, in part, that Mr. Patch was overprotective of her and that she had, in the past, patted Mr. Schembri’s buttocks. This latter assertion was not, however, advanced by him at the hearing.

Ms. Diflorio, who is no longer employed by the Company, gave evidence in support of the grievor’s case. She denied that Ms. Duffield ever communicated to her a concern about gestures of a sexual nature addressed to her by Mr. Schembri. During the course of her testimony, under cross-examination, Ms. Diflorio was confronted by counsel for the Union with a statement made by Mr. Patch during the course of his own evidence to the effect that on a number of occasions she had made statements suggesting that she and Mr. Schembri were sleeping together and that on at least one occasion she made a statement to that effect in a very explicit way. Ms. Diflorio denies any romantic relation with Mr. Schembri, as did the grievor during his testimony, and likewise denies having made any statement to that effect either to Mr. Patch or to another employee, Ms. Ivy Cobain. Ms. Diflorio admitted that she was friendly with Mr. Schembri at work, that they took breaks together occasionally and that they had left the plant together in her car on occasion. With respect to Mr. Schembri being in her car, however, she maintains that on a few occasions she drove him to his car which was parked outside the Company property during a period of time when he had lost his parking privileges. That explanation of Mr. Schembri and Ms. Diflorio leaving work together is also reflected in the grievor’s evidence.

In light of the conflicting testimony given at the hearing, this unfortunate case resolves itself into an issue of credibility. There is little or no room for any middle ground between the account of the events related by Ms. Duffield and Mr. Patch on the one hand and that of Mr. Schembri and Ms. Diflorio on the other. On a careful review of the whole of the evidence the Arbitrator is compelled to prefer the evidence of Ms. Duffield both with respect to the incident of the morning of September 30, as well as her description of the previous incidents of sexual suggestion to which she was subjected by Mr. Schembri in the terminal office on more than one occasion, and about which she complained to Ms. Diflorio. One basis for that conclusion is the demeanour of the witnesses and the consistency of their evidence through examination and cross-examination at the hearing. Ms. Duffield’s testimony was given in a candid and straightforward manner. The intensity of her feeling was apparent, as she broke into tears on at least one occasion during her evidence. Her recounting of the sexual gestures addressed to her by the grievor in the office prior to the incident of September 30 was related in clear and measured terms, as was her evidence respecting the brief incident on the stairwell, both with regard to Mr. Schembri placing his arms around her and thrusting his penis into her buttocks and his mocking repetition of her attempt to say “No!” as she immediately backed away from him. I am satisfied that the evidence of Mr. Patch is equally candid. From the parking lot he had a clear view of what occurred at the ground level landing window, in circumstances where he would have been unobserved by Mr. Schembri. His account of what he saw is also measured, as Mr. Patch does not claim to have been able to observe the pressing of the grievor’s genitals against Ms. Duffield from where he stood. His description of Mr. Schembri placing his arms around the grievor from behind, and her immediate retreat and obvious distress stands unshaken in cross-examination.

In assessing the combined credibility of Mr. Schembri and Ms. Diflorio, the Arbitrator must place further weight on the evidence of Ms. Ivy Cobain. Testifying under subpoena, and with obvious reluctance, Ms. Cobain is a witness with no apparent reason to favour one side or the other in this matter. On the issue of the relationship between the grievor and Ms. Diflorio, at least as it was described by Ms. Diflorio to Ms Cobain in casual conversation, Ms. Cobain’s evidence is clear and cogent. She confirms that Ms. Diflorio was open about sleeping with Mr. Schembri. While the personal relationship between Mr. Schembri and Ms. Diflorio is not the central issue in this grievance, at a minimum the evidence of Ms. Cobain leaves the denials of Ms. Diflorio in substantial doubt, as they relate both to her relationship with the grievor and the earlier complaints brought to her by Ms. Duffield about his prior suggestive gestures toward her in the office.

Nor is Mr. Schembri’s own evidence without contradiction and uncertainty. During his testimony in chief he related that on the morning of September 30 he and Mr. Dychuk had punched out together and were proceeding down the stairs to leave the premises when the incident occurred. According to Mr. Schembri, Mr. Dychuk descended the further flight of stairs towards the lower level to go and retrieve his lunch pail when he brushed against Ms. Duffield. However the documentary evidence introduced by the Company, including the grievor’s punch card for the morning in question, confirms that in fact he did not punch out at all. While this discrepancy might be minor and somewhat collateral, it is more consistent with the theory of the Employer that Mr. Schembri has created an after-the-fact rationalization of these events, rather than give a full and candid statement as to what happened. Additionally, the evidence of Ms. Duffield, Mr. Patch and Ms. Cobain, further supported by that of Personnel Manager Tarsay, relate a pattern of behaviour and relationship between Mr. Schembri and Ms. Diflorio that is, at the least, inconsistent with their denials in that regard.

For all of these reasons, the Arbitrator cannot accept, on the balance of probabilities, that the denials in respect of both the incident of September 30, 1988 and the prior incidents of sexual gestures made by Mr. Schembri are to be preferred to the evidence of Ms. Duffield and Mr. Patch. I must therefore conclude, firstly, that the grievor did, on more than one occasion, make explicit sexual gestures directed at Ms. Duffield in the office area, that she complained to Ms. Diflorio in this regard and received subsequent assurances from her that there would be no further problem. I must also find that on the morning of September 30, 1988 Mr. Schembri did physically assault Ms. Duffield by placing his arms around her from behind while pressing his penis into her buttocks. The effect of this incident upon its victim was immediate and severe, and by her own account, which the Arbitrator accepts without qualification, continues to be felt to the present time.

The seriousness of sexual harassment, and in particular of harassment which takes the form of physical assault upon a fellow employee, has been well canvassed in prior arbitral awards and need not be repeated here. (See Canadian National Railway Company and Canadian Brotherhood of Railway Transport and General Workers (1988),1 L.A.C. (4d) 183 (M.G. Picher) and St. Joseph’s Health Centre and Canadian Union of Public Employees, Local 1144, an unreported decision of arbitrator R.J. Roberts dated November 23, 1983). The issue in this matter then becomes the appropriate measure of discipline in the circumstances. As in any case of discipline consideration must be given to all factors, both aggravating and mitigating, which might bear upon this issue.

In the Arbitrator’s view there are few mitigating factors which assist the grievor in this case. With some nine years’ seniority, Mr. Schembri cannot be considered a long-service employee, as that term is generally understood. Nor, at 34 years of age, and holding an “A” licence which qualifies him as a transport driver in an industry where job opportunities are not scarce, is there great likelihood that he will be unable to find alternative employment. Moreover, the Arbitrator can give no weight to the grievor’s own suggestion that the stigma of having been dismissed for sexual harassment will operate as an impediment to finding other employment. Firstly, should that be true, it is a circumstance of the grievor’s own making. Secondly, while it is true that great care should be used in assessing the clear and cogent evidence that should be required to prove a serious form of misconduct, once such conduct is proved, as a matter of general principle a board of arbitration should be reluctant to allow the reprehensibility of an employee’s own misconduct to be pleaded in mitigation of the penalty to be assessed. I am, moreover, far from persuaded that the single unfortunate incident of physical abuse which led to the grievor’s discharge will, of necessity render him permanently unemployable. It is not the purpose of this award to pass final moral judgement upon the grievor. As the account of events contained herein reveal, on one occasion he committed a very serious error of judgement which had a devastating impact on a fellow employee so as to jeopardize his continued employability within a particular workplace. Although his continued presence in the Company’s terminal might cause continued strain and concern among its employees, there is no reason to believe that another employer might not give Mr. Schembri the opportunity to put this single incident behind him and resume useful employment in an entirely different work setting.

Further factors to be considered with respect to the issues of aggravation and mitigation are the grievor’s prior disciplinary record and his candour, both with his Employer and with the Board of Arbitration. Neither of those factors is particularly positive in this case. While, as noted, Mr. Schembri has never been disciplined before for conduct involving a lack of respect towards other employees, his past disciplinary record, and particularly that of the last year of his employment, is chequered at best, involving a number of incidents of minor discipline. As is evident from the Arbitrator’s assessment of the evidence, it must be concluded that Mr. Schembri has not been frank and forthcoming with respect to either the incident of September 30, 1988 or the charge of Ms. Duffield that he had previously subjected her to gestures of a sexually suggestive nature which he knew, or reasonably should have known, were not welcome. In a case such as this candour has a further dimension. A frank admission on the part of the grievor coupled with an apology to his fellow employee might constitute a factor to be weighed in mitigation. This is especially true as it might bear on the acceptance of the apology by the victimized employee which, in turn, would be a significant element relating to the ability of the grievor to continue to function in the Company’s service without undue distress to other employees (see Re Government of the Province of Alberta and Alberta Union of Provincial Employees, 1982 5 L.A.C. (3d) 268 (T. Joliffe) and Re Canada Cement Lafarge Limited and Energy and Chemical Workers Union, Local 219, 1986 24 L.A.C. (3d) 202 (Emrich)). Those factors are not present here.

For the foregoing reasons the Arbitrator must conclude that Mr. Schembri did engage in the actions alleged against him, including a physical assault of employee Susan Duffield in the early morning of September 30, 1988. Given the nature of the conduct involved, and its impact on Ms. Duffield coupled with the lack of compelling factors in mitigation, I am satisfied that the Company had just cause for the grievor’s termination, and that there are no reasons that would justify the substitution of a lesser penalty in this case. For these reasons the grievance must be dismissed.

DATED at Toronto this 28th day of April, 1989.

(signed) MICHEL G. PICHER

ARBITRATOR