BETWEEN

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: Michel G. Picher

A hearing in this matter was held in Toronto on April 30, 1996.

This arbitration concerns the discharge of Carman A.E. Malik. The grievor, a carman employed by the Company in the Toronto Car Shop at Agincourt, Ontario was discharged after 25 years of service for alleged sexual harassment of a fellow employee in September, October and November of 1992. The grievor denies any wrongdoing and, on his behalf, the Union seeks his reinstatement with compensation for all wages and benefits lost, with interest.

The allegations made against Mr. Malik first came to light in October of 1993 when a female labourer, hereinafter referred to as employee "A", at the Car Shop wrote a letter generally alleging sexual harassment perpetrated against her by a number of male co-workers over the preceding five years. On October 25, 1993, during the course of a formal statement being taken by employee "A" in respect of her allegations, she informed the Company that the grievor, Mr. Malik, was among those who had sexually harassed her. Specifically, she alleged that while she and Mr. Malik were at work on Sundays in the fall of 1992, he made verbal overtures to her about having sex and, finally, physically assaulted her. The complainant’s initial statement to the Company with respect to Mr. Malik’s actions, made in the course of her statement on October 25, 1993, reads as follows:

The complainant further related to the Company’s investigator that immediately after the incident she called her husband (hereinafter referred to as Mr. "A"), who is also an employee of the Company working at the same location, albeit in a different function. The complainant’s husband was interviewed by the Company’s investigator on November 30, 1993. It should be noted, however, that he was at all times present with his wife during the course of her statement to the Company, referred to above, and that he provided her with some assistance in recalling and recounting events. During the course of his statement, Mr. "A" related that on the Sunday in question he came to the workplace in the family truck with his children to bring his wife her lunch, which she had forgotten. He stated that he found her crying and upset. Upon inquiring as to what happened, she told him that the grievor "… {who} had been verbally bothering her had finally grabbed her in the pelvic area and on the breasts". Mr. "A" then related in the following terms, that he proceeded to have a verbal confrontation with Mr. Malik:

As noted above, Mr. Malik was one of seven employees made the subject of sexual harassment complaints by employee "A". All of the employees were investigated, resulting in three of them, including the grievor, being discharged for conduct amounting to sexual assault, with four others being assessed substantial demerit marks for unacceptable conduct, including displaying pornographic material, obscene gestures and obscene remarks of a sexual and humiliating nature towards the complainant employee. The arbitrator is advised that all of the other employees have, like Mr. Malik, grieved the discipline against them, and that their grievances are still pending. In the circumstances, therefore, it is preferable to comment as little as possible about the allegations or evidence pertaining to the other employees. It should be noted, however, that the three employees who were discharged were all charged criminally with sexual assault. One, who was convicted following a plea of not guilty, was sentenced to a three-month prison term. A second, who plead guilty, was given a suspended sentence of three months. Mr. Malik, who plead not guilty, was acquitted of the charge against him.

While nothing in this award should be taken as a comment on the merits of whatever case may be brought forward on behalf of any of the other employees concerned, it is necessary, for the purposes of this grievance, to outline the history of complaints of sexual harassment made by employee "A" during her employment at the Toronto Car Shop between 1989 and late 1993. During the course of her statements to the Company, "A" related that fairly early in her employment at the Car Shop she was sexually assaulted by employee "P", as a result of which she then made a specific complaint to shop supervisor Fred Partridge. The record also discloses that she made a complaint against the same employee for a separate incident which occurred at a later time. The record discloses that in or about May of 1993 employee "A" made a further complaint against employee "P", which resulted in a meeting taking place in Mr. Partridge’s office. The statement of Assistant Operations Coordinator P. Romeo indicates that the complaint made at that time consisted of both verbal abuse and fondling.

The complainant further related during the course of her supplementary statement taken on November 16, 1993 that she complained to Mr. Partridge on June 22, 1992 of having been sexually assaulted by another person, employee "Z". The memorandum of supervisor Partridge, however, dated November 8, 1993, places that meeting in May of 1992, and states that there was no allegation of physical touching made by employee "A" in respect of that incident. Mr. Partridge also relates that in May of 1992 employee "A" complained that another person, employee "M" had harassed her by displaying pornographic pictures. That complaint resulted in an interview of the employee by Mr. Partridge. Finally, Mr. Partridge relates that a further complaint against employee "P" was made by employee "A" on July 8, 1993. The grievor’s supplementary statement of November 16, 1993 does not take issue with the time or cause of the meeting, although "A" does dispute certain of the particulars related by Mr. Partridge.

While it would appear from the record so described that there may have been a serious problem with respect to the conduct of a number of employees within the shop, it should be stressed that the Company took all reasonable steps to enforce an enlightened and strict sexual harassment policy. The Company’s policy in this respect dates from at least December of 1984, when it was published in a booklet for all employees and managers. The evidence discloses that all employees were counselled as to the importance of their conduct, and the avoidance of sexual harassment in the workplace. Presentations, including a video presentation, were made to all employees at the Car Shop, including the persons identified above, in June of 1989 and again in April and May of 1992.

It goes without saying that sexual harassment, particularly harassment which is tantamount to sexual assault, is among the most serious forms of misconduct, deserving of the gravest disciplinary consequences. That has been affirmed in a number of prior arbitral awards including decisions within the railway industry. See, e.g., Re Canadian National Railway Co. and Canadian Railway, Transport & General Workers 1988, 1 L.A.C. (4th) 183 (M.G. Picher). At p.608 of that award, the following comment is found:

In the instant case, as in any case of discipline, the burden of proof is upon the Company. It must establish, on the balance of probabilities, that the grievor did sexually harass employee "A", verbally on a number of occasions and by physically assaulting her on at least one occasion, as alleged. In approaching this issue, it must be stressed that although the civil burden of proof applies, the standard of evidence required to discharge the burden must be one of clear and cogent proof, given the gravity of the conduct alleged and the seriousness of the consequences which flow from it. (Re Allen Industries Canada Ltd. and UAW (1971), 23 L.A.C. 121 (Weatherill); Re Air Terminal Transport and Fuel, Bus, Limousine, Petroleum Drivers & Allied Employees, Local 352 (1970), 22 L.A.C. 143 (Brown); Indusmin Ltd. (1978), 20 L.A.C. (2d) 87 (M.G. Picher); Alberta Health Care Ass. (1993), 37 L.A.C. (4th) 215 (Beattie); and Cara Operations Ltd. Airline Services Division (1992), 31 L.A.C. 1(Knopf)).

When the foregoing standards are applied to the case at hand, the arbitrator is ultimately left with serious reservations about the quality of the evidence advanced by the Company. Firstly, it must be noted that at the arbitration hearing neither employee "A", nor her husband, was present to testify on behalf of the Company. The grievor, on the other hand, was present to support his prior denials by testimony under oath, and subject to cross examination.

Further, there are some substantial unanswered questions in the case advanced by the Company as it appears to have evolved out of the mouth of employee "A". When questioned as to why employee "A" might fabricate such a serious allegation against him, Mr. Malik replied, during the course of his disciplinary investigation, that it could have been because he once observed employee "A" kissing employee "F", a person other than her husband, in an isolated part of the shop. He states that the following day employee "A" came to him and told him that he must never relate what he saw to her husband. At the arbitration hearing, Shop Supervisor K.W. Shearer confirmed that it was "open knowledge" in the workplace that employee "A" did have a romantic involvement with employee "F" at the time. Further, Mr. Shearer, whom the arbitrator judges to have been judicious and careful in his conduct of a very difficult investigation, candidly related that he did not pursue the truth of the grievor’s statement by checking it with employee "F". In the result, there is evidence to support the suggestion that there may have been some motive to cause employee "A" to distance herself from any account of events which might be made by the grievor, or to cause him difficulty.

There are, moreover, other parts of the record which raise concern for what they indicate of the credibility of employee "A", insofar as it relates to her account of the events involving Mr. Malik. As noted above, in her first account of the alleged assault by Mr. Malik, related in her statement of October 25, 1993, "A" stated, in part, "He only physically grabbed my pelvic area and arm the onetime". However, afterwards, during the course of his statement, the grievor’s husband, Mr. "A", related that when he attended at the workplace to deliver his wife’s lunch, she told him Mr. Malik "… grabbed her in the pelvic area and on the breasts". Still later, during the course of the grievor’s criminal trial, on August 1, 1995, during her testimony in chief, employee "A" stated, in part, "… {he} wanted to have sex with me and he grabbed my breasts and grabbed my vagina and, after he did that, he grabbed my hand and pulled my hand down to his penis and said that he is ready. And he said "Feel this"."

As can be seen, there is an appreciable difference between the event as it was recounted by employee "A" during the course of the grievor’s criminal trial, and her first account of the event to the Company’s investigator during the statement which she made on October 25, 1993. The reliability of the Company’s evidence is not improved by the admitted fact that "A’s" husband was present with her during the giving of her statement to the Company, that the reference to her breasts having been touched was first raised in the record by his own subsequent statement, and the fact that, for reasons not disclosed, he was not himself called as a witness by the Crown at the grievor’s trial. Moreover, although it is not determinative, some degree of concern flows from a statement made by "A" herself, during the course of the criminal trial to the effect that she had suffered periods of separation from her husband due, in part, to what she characterized as an abusive relationship.

The grievor denies that he was ever confronted or threatened in the manner related by employee "A’s" husband. Given that Mr. "A", who continues to be employed by the Company, was not present to testify at the arbitration hearing, there is no direct testimony available to rebut the account of this aspect of the case given by the grievor. Mr. Malik’s only recollection is that on one occasion Mr. "A" came by his workplace in his truck and asked where his wife might be working.

Perhaps the greatest cause for concern is the fact that the complainant employee made no mention to any supervisor of the alleged sexual assault by Mr. Malik for approximately one year after the event. As the record discloses, "A" was not reluctant to make such complaints. Over a period of time between early 1990 and mid-1993 she had made several complaints against employee "P", as well as employees "Z" and "M". In explanation of the fact that she nevertheless made no complaint against Mr. Malik, she offered the suggestion that it was because her husband indicated that he might get in trouble as a result of his physical threat to Mr. Malik. However, on the whole, the arbitrator has serious reservations about the general credibility of Mr. "A’s" statements. These reservations are in no small part prompted by the rather startling assertion made by Mr. "A" to the effect that he had witnessed his wife being assaulted on at least two occasions, and had been made aware by her of numerous other instances of sexual harassment, and yet did nothing to intervene himself or seek management’s protection for his spouse. Although during the course of her supplementary statement of November 16, 1993, employee "A" responded that although she did not report Mr. Malik to her supervisor, her husband spoke to him, the record is devoid of any confirmation of such a report. To the contrary, the statement of Mr. Partridge dated November 8, 1993 contains the following:

The arbitrator accepts the position argued by the Company to the effect that the burden of proof in this arbitration is not as exacting as the burden of proof which governed in the criminal trial at which Mr. Malik was acquitted. It is, nevertheless, instructive to examine the comments of the presiding judge, Keenan, J., in explanation of his decision to acquit the grievor. At pp. 107-108 of the trial transcript, the following comments are found:

The evidence before the arbitrator, although not identical, is in many ways similar to that which was placed before the Court. However, all of the statements of employee "A" are before me only by way of hearsay, and she was not present to be cross-examined. Many of the concerns expressed by the Court also obtain in this dispute. In examining the credibility of employee "A’s" husband, as noted above, there is reason to conclude that his own embellishments changed the account of events ultimately given by "A", as between her initial complaint and her ultimate testimony at the trial. No explanation is given for the failure of Mr. "A" to give corroborating evidence on behalf of the Crown. Perhaps most significantly, in the end, the arbitrator is left with considerable doubt about the complainant employee’s failure to speak out about the alleged conduct of Mr. Malik, given her willingness to do so repeatedly against other employees, both before and after the alleged incident.

In the final analysis, the case at hand resolves itself, at its highest, to the balancing of the conflicting accounts of employee "A", given only indirectly, in a hearsay form, by way of her prior statements both to the Company and at the criminal trial, and the denial of wrongdoing by Mr. Malik, supported by his presence at the arbitration hearing, and his availability to be cross-examined. In these circumstances, having regard to the gravity of the misconduct alleged, I am not satisfied, on the balance of probabilities that the Company has discharged the burden upon it.

For the foregoing reasons, the grievance is allowed. The arbitrator directs that the grievor be reinstated into his employment without loss of seniority and with compensation for wages and benefits lost. As agreed at the hearing, I retain jurisdiction in the event of any dispute between the parties with regard to the quantum of compensation, including the issue of the grievor’s entitlement to the payment of interest or any other matter relating to the interpretation or implementation of this award.

DATED at Toronto this 3rd day of May, 1996.